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The U.S. Supreme Court on Sept. 26 agreed to hear arguments in the following cases: ATTORNEYS’ FEES Is the “catalyst theory” — under which attorney fees are awarded to civil rights plaintiffs who prevail indirectly in their litigation — still available to courts under federal civil rights laws? The 4th U.S. Circuit Court of Appeals said no. Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources, No. 99-1848. A residential board-and-care home and its residents challenged state regulations requiring all residents to be capable of evacuating the home in the event of an imminent danger, such as a fire. Their case was later dismissed as moot after the West Virginia Legislature repealed the so-called self-preservation regulations. The plaintiffs sought attorney fees under the catalyst theory, contending that their litigation led to the abolishment of the regulations. The 4th Circuit said that to qualify for attorney fees, the prevailing party must have obtained an “enforceable judgment or comparable relief through a consent decree or settlement.” At least 10 other circuits disagree with the 4th. BANKING Does the D’Oench Duhme federal common-law doctrine bar claims by an investor that a bank placed into Federal Deposit Insurance Corp. receivership was responsible for his investment loss of half a million dollars? The 11th U.S. Circuit Court of Appeals said yes. Murphy v. Beck, No. 00-46. The high court will examine a broad split among the circuits over whether the D’Oench Duhme doctrine is still viable after its ruling in O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994). Bruce Murphy invested $500,000 in a golf and beach club development project. Southeast Bank lent the developer money for the project but, ultimately, the developer defaulted on the loans, and the bank went into FDIC receivership. The 11th Circuit held that O’Melveny did not deal with whether “the previously established and long-standing federal common law D’Oench doctrine” had been supplanted by federal legislation reforming financial institutions but only with whether to create new federal common law. CIVIL PRACTICE Did a district court judge abuse his discretion in throwing out a $5 million verdict against the government of the District of Columbia and ordering a new trial? The U.S. Court of Appeals for the District of Columbia said yes. District of Columbia v. Tri County Industries, No. 99-1953. The high court returns to the question of how much discretion the Seventh Amendment allows district courts in granting new trials and what is the standard of appellate review in this dispute between a Maryland environmental cleanup company and the D.C. government. The D.C. Circuit reinstated the verdict after reviewing the grant of a new trial for “abuse of discretion.” The appellate panel said, “A more searching inquiry is required” if the new trial is granted than if denied because of “concern that a judge’s nullification of the jury’s verdict may encroach on the jury’s important fact-finding function.” Lawyers for the D.C. government argue that under the high court’s ruling in Gasperini v. Center for Humanities, 518 U.S. 415 (1996), district courts have substantial discretion in granting new trials, and appellate courts are constrained in their review of such orders. CIVIL RIGHTS Does title iii of the Americans With Disabilities Act (ADA) require a professional sports organization to waive its rules in order to accommodate a disabled competitor who needs to use a golf cart? The 9th U.S. Circuit Court of Appeals said yes. PGA Tour v. Martin, No. 00-24. Because of a circulatory disorder in his right leg, Casey Martin needs to ride in a golf cart between shots at PGA Tour events. The tour requires competitors to walk the course during events. Martin sued the PGA Tour in 1997, claiming discrimination under the ADA. The 9th Circuit, upholding a lower court ruling, said that modification of the golf-cart rule would not “fundamentally alter” the nature of the competition under Title III of the ADA and is a “reasonable accommodation” required by the ADA. Faced with a similar case, the 7th Circuit ruled the other way. Can Alabama’s English-only policy for administering driver’s license examinations be challenged as having a disparate impact on foreign-born residents, in violation of Title VI of the Civil Rights Act of 1964? The 11th U.S. Circuit Court of Appeals said yes. Alexander v. Sandoval, No. 99-1908. Title VI bars discrimination by programs receiving federal funds. Martha Sandoval, a permanent resident alien from Mexico, challenged Alabama’s English-only testing policy as discriminating on the basis of national origin. The 11th Circuit upheld a lower court ruling that Title VI creates an implied private cause of action to enforce disparate impact regulations under Section 602 and that Alabama’s policy had a disparate impact on residents of foreign descent. Although there is no circuit split on the question, the Supreme Court has never directly decided whether a private cause of action exists under Title VI. CONSTITUTIONAL LAW Does a prison inmate have a First Amendment right to help another prison inmate with a pending court case? The 9th U.S. Circuit Court of Appeals said yes. Shaw v. Murphy, No. 99-1613. Kevin Murphy, a Montana State Prison inmate, was a prison-trained legal clerk authorized to help other inmates. In a 1995 letter, he offered legal strategies to a fellow inmate charged with assaulting a prison guard. But prison rules did not allow him to give legal aid to this particular inmate because the inmate was in a maximum-security unit. After his letter was read and confiscated by a guard, Murphy was disciplined for violating prison rules. He appealed the discipline action as a violation of his free-speech rights, but a federal court upheld the prison’s action. The 9th Circuit reversed, holding that the disciplinary action was “an exaggerated response to otherwise legitimate security concerns” and violated the First Amendment test under Turner v. Safely, 482 U.S. 78 (1987). Montana state attorneys argue that the 9th Circuit decision adversely affects prison management and security. CRIMINAL PRACTICE Must juries in South Carolina death penalty cases be told at sentencing that a life sentence means no chance of parole? The South Carolina Supreme Court said no. S hafer v. South Carolina, No. 00-5250. In 1994, the high court struck down a South Carolina law that barred informing jurors that parole was not an option for some defendants sentenced to life in prison. The law violated defendants’ due process rights, according to the court. The justices will now review a 1995 South Carolina law that gives juries three options in capital cases: death, life without the possibility of parole or a minimum of 30 years in prison in the absence of aggravating factors. Wesley Shafer’s jury asked the trial judge if there was “any remote chance” that he might be eligible for parole. The judge said “parole eligibility or ineligibility is not for your consideration.” In Shafer’s appeal, the state supreme court said the Supreme Court’s 1994 ruling was no longer applicable in the face of the state’s 1995 sentencing law. Does the police’s use of a thermal imaging device to detect heat emanating from a private garage roof constitute an unconstitutional search? The 9th U.S. Circuit Court of Appeals said no. Kyllo v. U.S., No. 99-8508. The 9th Circuit said that use of such a device did not amount to a search and did not intrude on any reasonable expectation of privacy. Should appellate courts give deferential review to a district court’s decision that prior convictions are or are not “related” for purposes of the career-offender provision of the U.S. Sentencing Guidelines? The 7th U.S. Circuit Court of Appeals said yes. Buford v. U.S., No. 99-9073. The 7th Circuit said that “relatedness” and “consolidation” are not “mere matters of form.” Because the decision involves mixed issues of law and fact, the appellate court held, it is committed to district courts “with deferential appellate review.” Because of the potentially “awesome” increase in a sentence, the defendant’s lawyers argue that a de novo standard of review is required. GOVERNMENT Are documents received by the Bureau of Indian Affairs from American Indian tribes regarding water issues “inter-agency” or “intra-agency” communications exempt from public release under the Freedom of Information Act? The 9th U.S. Circuit Court of Appeals said no. U.S. Department of Interior v. Klamath Water Users, No. 99-1871. The 9th Circuit held that because the tribes had an interest in water-use rights, their communications with the bureau were not inter-agency or intra-agency documents. The federal government contends that the ruling “threatens substantial disruption of the trust relationship between the United States and Indians,” which often depends on “candid, unfiltered information and assessments” from the tribes. IMMIGRATION LAW Does a federal immigration law that automatically confers citizenship on the out-of-wedlock child of a citizen mother but imposes additional requirements on citizen fathers of out-of-wedlock children violate the Fifth Amendment’s equal protection guarantees? The 5th U.S. Circuit Court of Appeals said no. Nguyen v. INS, No. 99-2071. The justices last faced this question in Miller v. Albright, 523 U.S. 420 (1998), a plurality ruling that applied the heightened-scrutiny standard used in gender bias claims. The high court found that Section 309 of the immigration law did not violate the equal protection clause. But two of the justices joined the ruling based on the petitioner’s lack of standing in Albright and stated that if standing had not been a problem, the section would not have survived heightened scrutiny in their view. Nguyen does not raise the standing issue and brings the question of the section’s constitutionality back to the high court. The 9th Circuit is in conflict with the 5th on this issue. Under the provision, before a child’s 18th birthday, the child must either be legitimated under the law of his residence, the father must acknowledge paternity under oath, or paternity must be established by a court. In addition, the father must agree to provide financial support for the child until he or she is 18. Neither the child in Nguyen nor his father did any of these things before the child had become an adult. LABOR LAW Are registered nurses who direct licensed practical nurses in the performance of their duties and who do other management-type tasks “supervisors” and therefore exempt from union coverage? The 6th U.S. Circuit Court of Appeals said yes. National Labor Relations Board v. Kentucky River Community Care, No. 99-1815. The high court will take up the thorny question of what constitutes the exercise of “independent judgment” that makes an employee a supervisor under Section 2(11) of the National Labor Relations Act. Under the NLRB’s interpretation of independent judgment, nurses direct less skilled workers by virtue of their training and skills, not by their connection to management. The 6th Circuit disagreed, saying that registered nurses exercise independent judgment that is not limited to or inherent in their professional training and are supervisors.

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