Supreme Court Grants Ten Petitions

The Supreme Court issued an order list today granting review on ten cert. petitions.  The so-called “long conference” was heavy with cases involving criminal law. Six petitions covering a range of issues from the Miranda rule to terrorism were granted.  The order list can be viewed here.    

Supreme Court Building

The long conference also advanced a case testing the scope of the Second Amendment.  In McDonald, et al. v. City of Chicago, No. 08-1521, the Court will decide whether the Second Amendment applies to the States through the Due Process Clause or the long-thought dead Privileges and Immunities Clause.  Alan Gura of Gura & Possessky, is the counsel of record.  The petition and reply brief can be viewed here and here.

The Court also granted review in Henneford v. Castaneda, et al., 08-1547. At issue in Henneford is whether government medical employees are immune from civil rights suits filed against them.  The petition argued that Congress specifically provided immunity under 42 U.S.C. § 233(a) for Public Health Service officials.  The petition and reply brief can be viewed here and here.  Our previous blog on Henneford can be viewed here.

A full listing of the petitions granted review can be found here at SCOTUS Blog.

Circuits Split over the Interpretation of the Federal Narcotics Statute

A petition for writ of certiorari filed in Robinson v. United States, No. 08-1374, asks the Supreme Court to clear up a circuit split over the meaning of a federal narcotics statutory provision.  The petition and reply brief can be viewed here and here.  The Solicitor General’s brief in opposition can be viewed here.

The petitioner was indicted for a drug conspiracy involving more than five kilograms of cocaine after previous convictions for felony drug offenses. Under 21 U.S.C. § 841(b)(1)(A), a person charged with five kilograms or more of cocaine, after two or more prior convictions for felony drug offenses, is subject to a mandatory life sentence.   One of the issues at trial was whether Robison was a major or minor player in the conspiracy, and whether he was aware of the entire drug quantity distributed in the conspiracy.  After closing arguments, the trial court instructed the jury to determine whether more than five kilograms of cocaine were involved in the conspiracy as a whole, rather than determining the individual drug amounts foreseeable to Robinson.   The jury ultimately concluded that over five kilograms of cocaine were involved in the conspiracy, and Robinson was sentenced to mandatory life under § 841(b)(1)(A). 

The Sixth Circuit acknowledged that courts of appeals are divided on whether the drug quantities necessary to trigger § 841(b)(1)(A) must be determined for each individual defendant.  Aligning itself with the majority of circuits that have ruled on the issue, the Sixth Circuit concluded that only a conspiracy-wide finding of drug quantity was needed to calculate and impose the penalty provision of § 841(b)(1)(A).  On the other side of the split are the Fourth and Ninth Circuits, which have held that a jury must find a foreseeable quantity of drugs for individual defendants before the penalty provision of § 841(b)(1)(A) can be applied.

The petition is scheduled for conference on September 29, 2009.

Noteworthy Postings of the Week

· Tony Mauro at The BLT: a post on Justice Sotomayor’s decision to join the cert pool.

 · Howard Bashman at HowAppealing: a post discussing an important environmental decision from the Second Circuit Court of Appeals.

· Eugene Volokh of The Volokh Conspiracy: a post discussing whether and to what extent corporations possess constitutional rights.

· SCOTUS Blog: a post detailing petitions that Tom Goldstein has given a reasonable chance of gaining Court review.

· Professor Douglas Berman at Sentencing Law & Policy: a post on a SCOTUS stay of execution for Texas death row inmate Kenneth Mosley.

The Continuing Viability of Manifest Disregard on Arbitration Review

In a case implicating judicial review of arbitration awards under the Federal Arbitration Act (“FAA”), a Michigan company has petitioned the Supreme Court to settle the question of whether the doctrine of manifest disregard of law remains viable after the Court’s ruling in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. __, 128 S. Ct. 1396 (2008).  The petition and reply brief in The Coffee Beanery, LTD., et al., v. WW, LLC, et al., can be viewed here and here. 

The petition was bolstered during the summer by the publication of several academic articles recognizing the circuit courts’ divergence on the remaining viability of manifest disregard under § 10 of the FAA.  See reply brief, pages 1-2.  In fact, one article stated that the Court’s guidance was needed to settle the question left unanswered in Hall Street, “once and for all.”  Richard C. Reuben, Building the Civilization of Arbitration: Personal Autonomy and Vacatur after Hall Street, 113 Penn. St. L. Rev. 1103, 1145-46 (2009). 

 The question arose from an arbitration award to The Coffee Beanery company.  The respondents filed suit in federal district court asking for review of the arbitration award under § 10 of the FAA, and the district court affirmed the award. 

 One issue on appeal was whether § 10 provided judicial review of the arbitration award by means of the manifest disregard of law doctrine.  The Sixth Circuit began by noting that review of an arbitrator’s decision under the FAA is one of the narrowest standards of judicial review created by statute.  Under § 10, an arbitration award is reviewable only under certain enumerated grounds including where: (1) the award was procured by corruption, fraud, or undue means; (2) arbitrators evidenced partiality or corruption; (3) the arbitrators were guilty of misconduct; and (4) the arbitrators exceeded their power.     

 Although the Sixth Circuit acknowledged that the Supreme Court in Hall Street had rejected a reading of the FAA allowing vacation of arbitration awards for reasons other than those specified in § 10, the court nevertheless concluded that Hall Street had not explicitly rejected the long-standing judicial doctrine of manifest disregard of law.  Describing the doctrine as a “universally recognized principle,” and citing cases from other circuits applying manifest disregard review (albeit pre-Hall Street), the court concluded that manifest disregard review continues unabated.  The court then reversed, holding that the arbitrator issued the award to Coffee Beanery under an erroneous interpretation of Maryland franchise law. 

 The petition argues that the Supreme Court’s review is needed to resolve a “deep, square conflict” over the viability of manifest disregard as a ground for vacating arbitration awards; that decisions applying manifest disregard are in “substantial tension” if not “outright conflict” with Hall Street; and that allowing manifest disregard review erodes the core arbitration benefits of finality and efficiency. The petition also contends that normal vehicle problems hampering certiorari review are not present in Coffee Beanery.

 The Coffee Beanery briefs were distributed on September 9, 2009, and according to the Court’s conferencing schedule, the case should be decided on September 29, 2009.

Filing a Reply Brief on the Petition Stage in the U.S. Supreme Court

There is often a haze of confusion regarding the timing and procedure for filing a reply brief on the petition stage.  The Supreme Court’s Rules on this subject are somewhat vague on the timing and provide little guidance on the procedure for printing and filing reply briefs.  This post aims to clear up any confusion on the process.

Most attorneys’ inclination is to file a reply brief before the clerk distributes the petition and brief in opposition to the Court for consideration.  According to experts, this is a wise practice given that the Justice’s clerks begin writing cert. memos on the petition shortly after distribution.  Without a reply brief in hand, there is the risk that a clerk will view the respondent’s contentions without rebuttal and craft a cert. memo accordingly.   See Gressman, E., et al., Supreme Court Practice, at 509 (9th ed.) (“To do any good, the [reply] brief must be submitted for the Court to read it before it acts on the petition.  This means that, to be effective, the reply brief should be available to the Justices (or their clerks) when they read the brief in opposition shortly after the case is circulated.”);  Bishop, T., et al., Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court, at  page 4, view here (“…the petitioner should aim to file a reply within ten days after the brief in opposition is filed so that the respondent’s arguments do not go (even temporarily) unchallenged.”);  Bursch, J., Petitions for Certiorari: Understanding The Hidden Process, at  page 1, view here   (summarizing Supreme Court Chief Deputy Clerk Chris Vasil’s speech during a 2007 conference in which Vasil encouraged parties to file their reply briefs before distribution so that the cert. pool memo writer has the reply brief in the same package as the petition and brief in opposition). 

Under Supreme Court Rule 15.5, the Clerk will distribute the petition for writ of certiorari and the brief in opposition for the Court’s consideration no less than 10 days after the brief in opposition is filed.  The 10-day deferral of distribution period is not, however, the actual filing due date.   Since the Court only distributes once a week, the petitioner will often have a few days beyond the 10-day deferral period.  For example, if a brief in opposition was filed on August 24, 2009, and the 10-day period ends on September 3, 2009, the next available distribution date for paid petitions is September 9, 2009, and therefore, that is the actual filing due date. 

You can determine the distribution date for your petition from the Court’s case distribution schedule, which can be viewed here.

The process for printing and filing a reply brief on the petition stage is straightforward.  Once the distribution date is determined, it is our practice to print and mail the reply brief the day before distribution.  Due to the 3,000-word limit for reply briefs, we can generally accept a reply brief the morning before briefs are sent to the Court.  We email a proof that evening, and proof corrections are received before 10:00 AM Central Time the next morning.  The brief is finalized, printed and mailed the day before distribution. 

To give an example, the Court currently distributes on Wednesdays, thus a reply brief must be mailed by Tuesday.  We could accept a reply brief as late as 10:00 AM Central Time on Monday and a proof would generally be sent by 5:30 PM Central Time that day.  Corrections must be received by 10:00 AM Central Time on Tuesday.  The briefs are then printed and mailed on Tuesday. 

The Court’s anthrax screening process combined with the distribution schedule slightly alters our usual process for filing briefs on the petition stage.  On the day of distribution, we confirm that the briefs were delivered to the Court.  We then email an electronic PDF version of the reply brief to Deputy Clerk Chris Vasil.  Since the paper briefs are sent off-site for screening, Mr. Vasil distributes the PDF version to the Court.  The PDF is later replaced with the paper briefs once screening is complete.

October and November Supreme Court Argument Calendars

The Court’s argument calendar is set for the first two months of the 2009 Term.  In October, the Court’s schedule is heavy with criminal issues which make up six of the thirteen cases.  And another case (Alvarez v. Smith, No. 08-351) presents a civil forfeiture issue that mainly arises during criminal proceedings.

 In November, the Court will hear argument in the patent case of Bilski v. Kappos, No. 08-964, which produced an amazing forty-six Amicus briefs just at the merits stage.  The November sitting also includes two cases from juveniles serving life sentences in Florida.  Both Graham v. Florida, No. 08-7412 and Sullivan v. Florida, No. 08-7621, involve the Eighth Amendment’s cruel and unusual punishment clause. 

 The Court’s argument calendar for October can be viewed here.  The Court’s argument calendar for November can be viewed here.

 Out of twenty-six cases that will be heard in October and November, Cockle Law Brief Printing Company printed merits briefs in fourteen of them.

A Cockle-Printed Petition Is A Strong Candidate For Review

There is a strong prospect of Supreme Court review in Heneford v. Castaneda, et al. (No. 08-1547) according to an article posted today in SCOTUS blog. Given that there is a direct conflict among federal courts of appeals on the question of immunity for U.S. Public Health Service personnel, and because the Solicitor General also urged review in an Amicus filing, SCOTUS Blog believes it likely that the Court will grant review upon its return from the summer recess.  To view the post (containing a PDF of the cert. petition that Cockle printed), click here.