The United States Supreme Court, in the first half of its 2005-2006 term, addressed many issues, ranging from the Portal-to-Portal Act to the award attorney fees under the attorney fee provision of the removal statute, 28 U.S.C.A. § 1447(c). This update summarizes issues addressed by the Supreme Court in the first half of its 2005-2006 term. Summaries include grants or denials of certiorari as well as opinions. Each summary is followed by a citation to a related annotation in the American Law Reports.

The Staff of American Law Reports

TABLE OF CONTENTS

1. CIVIL RIGHTS
2. CONSTITUTIONAL LAW
3. COPYRIGHTS AND INTELLECTUAL PROPERTY
4. CORPORATIONS
5. ELECTIONS
6. ENVIRONMENTAL LAW
7. FEDERAL COURTS
8. HABEAS CORPUS
9. LABOR AND EMPLOYMENT
10. REMOVAL OF CASES
11. SEARCHES AND SEIZURES
12. SECURITIES REGULATION
13. TELECOMMUNICATIONS
14. TREATIES
15. WORKERS' COMPENSATION
16. WAR AND NATIONAL EMERGENCY

1. CIVIL RIGHTS

Certiorari was denied by the United States Supreme Court in Kocak v. Community Health Partners of Ohio, Inc., 126 S. Ct. 650 (U.S. 2005). In Kocak v. Community Health Partners of Ohio, Inc., 400 F.3d 466, 95 Fair Empl. Prac. Cas. (BNA) 583, 86 Empl. Prac. Dec. (CCH) P 41874, 2005 FED App. 0127P (6th Cir. 2005), the Sixth Circuit Court of Appeals had held that evidence that a personnel manager told an employee that her employer did not want to rehire her because of scheduling difficulties attending her prior pregnancy was not direct evidence of discrimination under the Pregnancy Discrimination Act (PDA).
See What constitutes termination of employee due to pregnancy in violation of Pregnancy Discrimination Act Amendment to Title VII of Civil Rights Act of 1964 (42 U.S.C.A. sec. 2000e(k)), 130 A.L.R. Fed. 473.

The Court denied certiorari in Hammel v. Eau Galle Cheese Factory, 17 A.D. Cas. (BNA) 576, 2005 WL 3144155 (U.S. 2005), letting stand a Seventh Circuit decision, Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 16 A.D. Cas. (BNA) 1185 (7th Cir. 2005). In Hammel, the lower court ruled that once the employee was deemed a "qualified individual" under the Americans with Disabilities Act (ADA), a district court could consider evidence unrelated to the employee's disability, including evidence of poor attitude, careless behavior, and deficient work performance.
See Who is "Qualified Individual" Under Americans With Disabilities Act Provisions Defining, and Extending Protection Against Employment Discrimination to Qualified Individual with Disability (42 USCA secs. 12111(8), 12112(a)), 146 A.L.R. Fed. 1.

The Court denied certiorari in Everson v. Michigan Dept. of Corrections, 391 F.3d 737, 94 Fair Empl. Prac. Cas. (BNA) 1542, 85 Empl. Prac. Dec. (CCH) P 41900, 2004 FED App. 0418P (6th Cir. 2004), cert. denied, 126 S. Ct. 364, 96 Fair Empl. Prac. Cas. (BNA) 896 (U.S. 2005). The Sixth Circuit had ruled that female gender was a bona fide occupational qualification (BFOQ) under Title VII for correctional officer and residential unit officer positions in housing units at prisons for females.
See Permissible sex discrimination in employment based on bona fide occupational qualifications (BFOQ) under sec. 703(e)(1) of Title VII of Civil Rights Act of 1964 (42 U.S.C.A. sec. 2000e-2(e)(1)), 110 A.L.R. Fed. 28.

2. CONSTITUTIONAL LAW

The Court denied certiorari in Lambeth v. Board of Com'rs of Davidson County, North Carolina, 126 S. Ct. 647 (U.S. 2005). In Lambeth v. Board Of Commissioners Of Davidson County, NC, 407 F.3d 266 (4th Cir. 2005), the Fourth Circuit Court of Appeals had held that the words, "In God We Trust," displayed prominently on the facade of a county government center did not violate the Establishment Clause under the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971).
See First Amendment Challenges to Display of Religious Symbols on Public Property, 107 A.L.R.5th 1.

The Court denied certiorari in Dretke v. Coleman, 126 S. Ct. 427 (U.S. 2005). In Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004), the Fifth Circuit had ruled that the State of Texas was required to provide procedural due process before imposing sex offender registration and therapy as conditions to the release on parole or mandatory supervision of a prisoner who had never been convicted of a sex crime.
See State statutes or ordinances requiring persons previously convicted of crime to register with authorities, 36 A.L.R.5th 161.

The Court granted certiorari in U.S. v. Maxwell, 126 S. Ct. 321 (U.S. 2005). In U.S. v. Maxwell, 386 F.3d 1042 (11th Cir. 2004), the Eleventh Circuit Court of Appeals had ruled on the constitutionality of applying the federal child pornography statute to the intrastate possession of child pornography. The statute, 18 U.S.C.A. § 2252A(a)(5)(B), prohibits the knowing possession of child pornography "produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce."
See Validity, Construction, and Application of 18 U.S.C.A. sec. 2252A(a), Proscribing Certain Activities Relating to Material Constituting or Containing Child Pornography, 2 A.L.R. Fed. 2d 533.

The Court denied certiorari in John Doe I v. Moore, 126 S. Ct. 624 (U.S. 2005). In Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005), the Eleventh Circuit Court of Appeals had ruled that Florida's various classifications and sub-classifications for sex offender registration were rationally related to a legitimate governmental purpose, and therefore did not violate the Equal Protection Clause.
See State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities, 36 A.L.R.5th 161.

3. COPYRIGHTS AND INTELLECTUAL PROPERTY

Denying certiorari, the U.S. Supreme Court in Faulkner v. National Geographic Society, 2005 WL 2706947 (U.S. 2005), let stand the Second Circuit decision of Faulkner v. National Geographic Enterprises Inc., 409 F.3d 26, 33 Media L. Rep. (BNA) 1385, 73 U.S.P.Q.2d (BNA) 1980 (2d Cir. 2005). The lower court had ruled that publication by the National Geographic Society of a digital archive of copyrighted photographs and articles from past issues of National Geographic Magazine was a "revision" of the Society's previously authorized print product, and thus was privileged under 17 U.S.C.A. § 201(c), which governs contributions to collective works.
See Copyright Protection Afforded to Republication of Collective Works in Electronic Databases--Canadian and United States Cases, 5 A.L.R. Fed. 2d 1.

The Court denied certiorari in 1-800 Contacts, Inc. v. WhenU.com, Inc., 2005 WL 3144164 (U.S. 2005). The Second Circuit Court of Appeals ruled in 1-800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400, 75 U.S.P.Q.2d (BNA) 1161 (2d Cir. 2005 that an Internet marketing company did not "use" the "1-800 CONTACTS" mark of a Web site owner under the Lanham Act when it included the owner's similar website address in an unpublished directory of terms triggering the delivery of contextually relevant advertising to computer users.
See Legality of Internet Pop-up Ads, 195 A.L.R. Fed. 251.

4. CORPORATIONS

In Harrah's Las Vegas, Inc. v. Snowney, 126 S. Ct. 659 (U.S. 2005) the Court denied certiorari. The California Supreme Court had held that California had specific jurisdiction over Nevada hotels in a California resident's class action for the hotels' alleged failure to provide notice of an energy surcharge imposed on hotel guests. See Snowney v. Harrah's Entertainment, Inc., 35 Cal. 4th 1054, 29 Cal. Rptr. 3d 33, 112 P.3d 28 (2005).
See Internet Web site activities of nonresident person or corporation as conferring personal jurisdiction under long-arm statutes and due process clause, 81 A.L.R.5th 41.

5. ELECTIONS

The Court denied certiorari in Johnson v. Bush, 126 S. Ct. 650 (U.S. 2005), letting stand the Eleventh Circuit's ruling that the Voting Rights Act's (VRA) prohibition against voting qualifications that result in abridgment of the right to vote on account of race did not apply to the Florida Constitution's felon disenfranchisement provision. See Johnson v. Governor of State of Florida, 405 F.3d 1214 (11th Cir. 2005).
See Validity, Construction, and Application of State Criminal Disenfranchisement Provisions, 10 A.L.R.6th 31.

6. ENVIRONMENTAL LAW

The Court granted certiorari in Rapanos v. U.S., 126 S. Ct. 414 (U.S. 2005), miscellaneous rulings, 126 S. Ct. 617 (U.S. 2005). The issue on appeal is the ruling by the Sixth Circuit that the Army Corps of Engineers' interpretation of "waters of the United States," as used in the Clean Water Act (CWA), to include those waters adjacent to tributaries of navigable waters that share a hydrological connection with those tributaries was not arbitrary, unreasonable, or manifestly contrary to the statute, and thus was entitled to Chevron deference in a civil enforcement action under the CWA. See U.S. v. Rapanos, 376 F.3d 629, 58 Env't. Rep. Cas. (BNA) 2000, 59 Fed. R. Serv. 3d 341, 34 Envtl. L. Rep. 20060, 2004 FED App. 0239P (6th Cir. 2004), cert. granted, 126 S. Ct. 414 (U.S. 2005), miscellaneous rulings, 126 S. Ct. 617 (U.S. 2005).
See What Are "Navigable Waters" Subject to Federal Water Pollution Control Act (33 U.S.C.A. ss 1251 et seq.), 160 A.L.R. Fed. 585.

7. FEDERAL COURTS

In Eberhart v. U.S., 126 S. Ct. 403 (U.S. 2005), the U.S. Supreme Court held that the rules setting forth time limits for a defendant's motion for a new trial grounded on a reason other than newly discovered evidence are not "jurisdictional" but, instead, are inflexible, nonjurisdictional claim-processing rules.
See Time Limitations in Connection With Motions for New Trial under Rule 33 of Federal Rules of Criminal Procedure, 51 A.L.R. Fed. 482.

8. HABEAS CORPUS

In Kane v. Garcia Espitia, 126 S. Ct. 407 (U.S. 2005), the Court held that a petitioner who elected to proceed pro se on state court charges did not have a clearly established right under federal law to access to a law library while he was in jail before trial, as required for federal habeas relief.
See Sufficiency of Access to Legal Research Facilities Afforded Defendant Confined in State Prison or Local Jail, 98 A.L.R.5th 445.

In Schriro v. Smith, 126 S. Ct. 7 (U.S. 2005), the U.S. Supreme Court held that the Ninth Circuit Court of Appeals exceeded its limited authority on habeas review by commanding Arizona courts to conduct a jury trial to resolve the habeas petitioner's claim that he was ineligible for execution due to mental retardation. The Court ruled that the precedent established in Atkins v. Virginia mandated that it was to be left to the states to develop the appropriate ways to adjudicate claims of mental retardation. The Court found that the state of Arizona was never given an opportunity to apply its chosen procedures before the Ninth Circuit preemptively imposed the jury trial condition.
See Application of Constitutional Rule of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), that Execution of Mentally Retarded Persons Constitutes "Cruel and Unusual Punishment" in Violation of Eighth Amendment, 122 A.L.R.5th 145.

9. LABOR AND EMPLOYMENT

The U.S. Supreme Court denied certiorari in Roquet v. Arthur Andersen LLP, 126 S. Ct. 375, 23 I.E.R. Cas. (BNA) 800 (U.S. 2005). The Seventh Circuit had held that a large accounting and consulting firm's need for layoffs was not reasonably foreseeable 60 days before the decision to lay off employees was made, and therefore the firm was exempt from liability under the "unforeseen business circumstances" exception to the Worker Adjustment and Retraining Notification Act (WARN Act). See Roquet v. Arthur Andersen LLP, 398 F.3d 585, 22 I.E.R. Cas. (BNA) 663, 150 Lab. Cas. (CCH) P 10444 (7th Cir. 2005).
See Validity, construction, and application of Worker Adjustment and Retraining Notification Act of 1988 (WARN) (29 U.S.C.A. secs. 2101 et seq.), 120 A.L.R. Fed. 249.

In IBP, Inc. v. Alvarez, 126 S. Ct. 514, 10 Wage & Hour Cas. 2d (BNA) 1825, 151 Lab. Cas. (CCH) P 35056 (U.S. 2005), the Court held that the time that poultry plant employees spent waiting to don protective gear at the start of the work day was excluded from FLSA coverage under the Portal-to-Portal Act's exception for "activities which are preliminary to or postliminary to a principal activity or activities."
See Portal-to-Portal Act, 21 A.L.R.2d 1327.

10. REMOVAL OF CASES

The Court held in Martin v. Franklin Capital Corp. that, absent unusual circumstances, attorney fees should not be awarded upon the remand of an improperly removed case when the defendant had an objectively reasonable basis for the removal. 2005 WL 3299410 (U.S. 2005).
See Award of Attorneys' Fees Under 28 U.S.C.A. sec. 1447(c), Which Allows District Court to Award Fees Upon Remanding Case to State Court, 119 A.L.R. Fed. 433.

11. SEARCHES AND SEIZURES

In Decena v. San Jose Charter of Hells Angels Motorcycle Club, 2005 WL 3272159 (U.S. 2005), the Court denied certiorari in San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir. 2005). The Ninth Circuit Court of Appeals found, inter alia, that the officers' unnecessary shooting of dogs in the course of executing warrants to search the residences of several Hells Angels' members was unreasonable in violation of the Fourth Amendment, and that the officers were not entitled to qualified immunity for their actions.
See Destruction of Property as Violation of Fourth Amendment, 98 A.L.R.5th 305.

The Court denied certiorari in Boulineau v. Donald, 126 S.Ct. 352 (U.S. 2005). In, Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005), the Eleventh Circuit had ruled that a Georgia statute requiring DNA sampling of all incarcerated felons did not violate the search and seizure provisions of the federal and state constitutions.
See Validity, Construction, and Operation of State DNA Database Statutes, 76 A.L.R.5th 239.

In Williams v. Michigan, 2005 WL 3144130 (U.S. 2005), the Court denied certiorari. In People v. Williams, the Michigan Supreme Court had found that the continuation of the detention of a lawfully-stopped driver, even after the driver had handed a police officer his driver's license and other requested paperwork, was reasonable in scope and duration. 472 Mich. 308, 696 N.W.2d 636 (2005).
See Permissibility under Fourth Amendment of detention of motorist by police, following lawful stop for traffic offense, to investigate matters not related to offense, 118 A.L.R. Fed. 567.

12. SECURITIES REGULATION

Certiorari was granted by the Court in Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 126 S. Ct. 34 (U.S. 2005). The Second Circuit Court of Appeals had ruled that the Securities Litigation Uniform Standards Act (SLUSA), which preempts certain class actions based upon state law brought by private parties alleging a misrepresentation or omission "in connection with the purchase or sale" of certain nationally traded securities, 15 U.S.C.A. § 78bb(f), does not preempt claims that do not allege that putative class members purchased or sold particular securities in reliance upon the defendant's alleged misconduct. Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25, Blue Sky L. Rep. (CCH) P 74516, Fed. Sec. L. Rep. (CCH) P 93068, Fed. Sec. L. Rep. (CCH) P 93077 (2d Cir. 2005).
See Validity, Construction, and Operation of Securities Litigation Uniform Standards Act of 1998, 2 A.L.R. Fed. 2d 1.

13. TELECOMMUNICATIONS

The U.S. Supreme Court denied certiorari in Heckel v. Washington, 126 S. Ct. 387 (U.S. 2005). The Court turned aside State v. Heckel, 122 Wash. App. 60, 93 P.3d 189 (Div. 1 2004), review denied, 153 Wash. 2d 1021, 108 P.3d 1229 (2005), in which a Washington appellate court held that a Washington statute, Wash. Rev. Code Ann. § 19.190.020(2), which prohibited the transmission of commercial electronic mail that was deceptive or that used a third party's internet domain name without permission, did not violate the Commerce Clause as applied to an Oregon resident who sent deceptive spam e-mail to Washington residents.
See Validity of State Statutes and Administrative Regulations Regulating Internet Communications Under Commerce Clause and First Amendment of Federal Constitution, 98 A.L.R.5th 167.

14. TREATIES

The Court granted certiorari in Sanchez-Llamas v. Oregon, agreeing to determine whether a foreign detainee has individual rights under the Vienna Convention on Consular Relations and Optional Protocol on Disputes (VCCR), Art. 36, 1969 WL 97928, to consular notification and communication. 126 S. Ct. 620 (U.S. 2005), miscellaneous rulings, 2005 WL 3357978 (U.S. 2005).
See Construction and Application of Vienna Convention on Consular Relations (VCCR), Requiring that Foreign Consulate be Notified When One of its Nationals is Arrested, 175 A.L.R. Fed. 243.

15.WORKERS' COMPENSATION

The Court denied certiorari in Continental Pet Technologies, Inc. v. Palacias, 126 S. Ct. 362 (U.S. 2005). The Court of Appeals of Georgia had held that the federal Immigration Reform and Control Act of 1986 (IRCA), which prohibits the knowing hiring of illegal aliens and the use of fraudulent documents to obtain employment, did not preempt state workers' compensation law. See Continental PET Technologies, Inc. v. Palacias, 269 Ga. App. 561, 604 S.E.2d 627 (2004).
See Application of Workers' Compensation Laws to Illegal Aliens, 121 A.L.R.5th 523.

16. WAR AND NATIONAL EMERGENCY

In Salim Ahmed Hamdan v. Rumsfeld, 126 S. Ct. 622 (U.S. 2005), the Court granted certiorari in the habeas corpus case challenging the Department of Defense's use of military commissions to try suspected terrorists pursuant to orders issued by the President of the United States.
See Designation as Unlawful or Enemy Combatant, 185 A.L.R. Fed. 475.

The Court denied certiorari in Palestine Liberation Organization v. Ungar ex rel. Strachman, 2005 WL 3144180 (U.S. 2005), letting stand a ruling by the First Circuit Court of Appeals that claims by the estate and survivors of an American citizen murdered by terrorists while living in Israel against the Palestinian Authority, Palestine Liberation Organization, and others did not present a non-justiciable political question. Ungar v. Palestine Liberation Organization, 402 F.3d 274 (1st Cir. 2005).
See Validity, Construction, and Application of 18 U.S.C.A. sec. 2333(a), Which Allows U.S. Nationals Who Have Been Injured "By Reason of Act of International Terrorism" to Sue Therefor and Recover Treble Damages, 195 A.L.R. Fed. 217.