Greetings, Court Fans!

 

The October 2004 Session is in full swing and the Court granted cert in eight additional cases yesterday.

Two of those cases involve challenges to the display of the Ten Commandments on government property. In Van Orden v. Perry, 03-1500, the Court will review a Fifth Circuit decision finding that a granite monument of the Ten Commandments promotes valid secular purposes without endorsing religion and does not violate the First Amendment’s establishment clause. The concise question presented, as drafted by plaintiff’s counsel, Erwin Chemerinsky: “Is large monument, 6 feet high and 3 feet wide, presenting Ten Commandments, located on government property between the Texas State Capitol and the Texas Supreme Court, impermissible establishment of religion in violation of First Amendment?” The second case, McCreary County v. ACLU, 03-1693, involves a similar challenge to the display of the Ten Commandments, this time in county court houses and schools, where the Commandments are displayed with secular documents that played a significant role in the foundation of American legal system. The Sixth Circuit found an insufficient secular purpose for display of the Commandments and, thus, a violation of the establishment clause. Counsel in McCreary was not as concise (or amusing) as Chemerinsky, providing a laundry list of questions presented (not all of which will be reiterated here), including whether “a new test for establishment clause purposes should be set forth by this court when government displays or recognizes historical expressions of religion?”

The Court also granted review to a pair of cases that will determine whether federal courts have jurisdiction under 28 U.S.C. § 1367 to allow permissive joinder of plaintiffs whose claims do not meet the amount in controversy requirement. In Ortega v. Star-Kist Foods, Inc., 04-79, the First Circuit found that § 1367 did not permit permissive joinder of plaintiffs whose claims fall below the minimum threshold. In Exxon Corp. v. Allapattah Svcs., Inc., 04-70, the Eleventh Circuit found that § 1367 clearly and unambiguously permitted a court in presiding over a diversity class action to exercise supplemental jurisdiction over claims of class members who do not meet the amount-in-controversy requirement, so long as the court has original jurisdiction over the claims of at least one class member. The cases have been scheduled for a consolidated 90 minute argument.

On a less controversial note (unless you are a farmer concerned about water rights), in Orff v. United States, 03-1566, the Court will consider the following question: “Are farmers ‘intended’ third-party beneficiaries of their irrigation district’s water service and repayment contracts with US Bureau of Reclamation and, therefore, entitled to sue bureau for breach thereof, as Federal Circuit has long held, or are they merely ‘incidental’ third-party beneficiaries and, therefore not so entitled, as Ninth Circuit held in decision below?” Though on first blush, the case would appear to raise the traditional question of when a third-party beneficiary can sue to enforce a contract to which it is not a party, the issue in fact turns on whether the government is immune from the farmer’s suit. This resolution of this issue depends on whether the farmers should be considered “contracting entities” under 43 U.S.C. § 390uu, such that they can take advantage of the government’s waiver of sovereign immunity under that statute.

For all you federal jurisdiction junkies, you will be happy to learn that the Court has granted review in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 03-1696, a case where the Third Circuit held that the district court had no jurisdiction because the claims asserted by the oil company and two of its subsidiaries in the federal action were identical to claims already adjudicated by a Delaware trial court involving the same two subsidiaries, claims that were currently pending in the supreme court of Delaware. The Court granted review of the following question: “May Rooker-Feldman doctrine, which bars lower courts from conducting de facto appellate review of decisions by state courts, be expansively interpreted to additionally incorporate preclusion principles and divest federal courts of jurisdiction solely because pending state court proceeding presents identical issues, notwithstanding long-established system of dual federal and state jurisdiction?”

In Lingle v. Chevron U.S.A., Inc., 04-163, the Court will review a Ninth Circuit decision holding that the just compensation clause invalidated a state statute capping rents that an oil company may collect from dealers who lease company-owned services stations. The questions presented are: (1) Does just compensation clause authorize court to invalidate state economic legislation on its face and enjoin enforcement of law on basis that legislation does not substantially advance legitimate state interest, without regard to whether challenged law diminishes economic value or usefulness of any property? (2) In determining under just compensation clause whether state economic legislation substantially advances legitimate state interest, should court apply deferential standard of review equivalent to that traditionally applied to economic legislation under due process and equal protection clauses, or may court instead substitute its judgment for that of the legislature by determining de novo, by preponderance of the evidence at trial, whether legislation will be effective in achieving its goals?”

Finally, the court also granted review to an in forma pauperis case, Cutter v. Wilkinson, 03-9877. We will update you regarding the questions presented in that matter when they become available.

The Court also invited the Acting Solicitor General to file briefs in the following cases:

In Banks of China v. NBM, L.L.C., 03-1559, petitioners challenge the Second Circuit’s holding that civil RICO plaintiffs alleging mail and wire fraud as predicate acts must establish “reasonable reliance” under 18 U.S.C. § 1964(c).

McFarling v. Monsanto Co., 04-31, seeks consideration of the Federal Circuit’s ruling that a holder of a patent on genetically modified seed does not commit patent misuse by forcing purchasers to enter into a licensing agreement that prohibits them from re-planting second generation seed. The petition also presents the question of whether “obtaining patents on products that are subject of licensing agreements affords absolute defense to any claim that licensing agreements violate Sherman Act.”

Finally, in Comstock Resources, Inc. v. Kennard, 04-165, petitioners seek review of a Tenth Circuit decision finding that qui tam relators had requisite “direct and independent knowledge” to qualify as “an original source” under 21 U.S.C. § 3730(e)(4) and thus had jurisdiction to pursue qui tam action despite the fact that plaintiffs did not have personal knowledge of the alleged fraud, but obtained such knowledge by independent investigation that uncovered relatively obscure public documents supporting their allegations.

Well, if you’ve gotten this far, give yourself a pat on the back. The real fun will start when the Court begins issuing decisions, but for that, we’ll have to wait a bit longer. Thanks for reading!

As always, we welcome questions, comments or suggestions.

Kim & Ken

 

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400