FINAL Update 1:19 p.m.

The Supreme Court on Tuesday announced no action on a new case testing the meaning of the Second Amendment — an issue the Court has not considered in 68 years. The Orders List contained no mention of either the District of Columbia’s appeal (07-290) or a cross-petition by challengers to the city’s flat ban on private possession of handguns (07-335). The next date for possible action on these cases is likely to come after the Court’s pre-Thanksgiving Conference — either on the day of the Conference, Nov. 20, or the following Monday, Nov. 26.

The Court, of course, does not explain inaction. But among the possible reasons for delaying the case are these: one or more Justices simply asked for more time to consider the two cases; the Court may be rewriting the question or questions it will be willing to review — especially in view of the disagreement between the two sides on what should be at issue; the Court may have voted initially to deny review of one or both cases and one or more Justices are writing a dissent from the denial.

The appeal in 07-290 (District of Columbia v. Heller) raises the key issue about the Second Amendment’s meaning — that is, whether it guarantees an individual right to have a handgun for private use, at least in one’s home — and the appeal in 07-335 (Parker v. District of Columbia) poses a question about who may bring lawsuits to challenge laws before they are actively enforced. Together, the cases thus present a somewhat complex mix for the Court, and it perhaps was not much of a surprise that no order issued on Tuesday. At no point is there likely to be an answer as to what happened to bring about the delay. Both cases are expected to be re-listed for the Nov. 20 Conference.

The Court agreed to hear one new case, on the rate of recovery of the costs of paralegal services when a winning party in a case seeks attorney fees. The issue is whether paralegal services are to be paid at the market rate for such services, or only at the level of their actual cost. The Circuit Courts are divided on the issue. It arises now in the case of Richlin Security Service v. Chertoff (06-1717). Click the following links to access the opinion below of the Federal Circuit, petition for certiorari, brief in opposition, petitioner's reply, and amicus brief of the National Association of Legal Assistants (filed in support of petitioner).

In another order, the Court asked the U.S. Solicitor General to provide the federal government’s views on whether an immediate appeal may be filed if a federal judge refuses a federal government request to dismiss a case in U.S. courts against a foreign government. The case, Exxon Mobil Corp. v. Doe I, et al. (07-81), involves a claim by eleven villagers in Indonesia that Exxon Mobil and its Indonesian subsidiary used soldiers of the Indonesian military to guard an Exxon natural gas plant in Aceh province, resulting in acts of murder, torture, and other atrocities by the soldiers. Justice Samuel A. Alito, Jr., took no part in the order seeking the government’s reaction to the appeal; he apparently owns a block of Exxon Mobil stock. Click the following links to access the opinion below of the D.C. Circuit, petition for certiorari, brief in opposition, and petitioner's reply.

The Court denied review of two significant cases:

** It refused to hear an appeal by the National Collegiate Athletic Association seeking clarification of when a private organization may be sued for civil rights violations on the theory that it was jointly involved in the actions of a state agency. The issue arises in a lawsuit against the NCAA by a former men’s basketball coach at State University of New York at Buffalo, claiming that the NCAA injured his professional reputation in a probe of his program that led to findings of major sports rules violations. The case can now proceed to a trial. (NCAA v. Cohane, 07-107).

** For the third time this Term, the Court refused to hear an appeal or provide emergency relief for a Guantanamo Bay detainee, Algerian Ahmed Belbacha, seeking to block his transfer to his home country, where he fears torture and abuse. The Court previously had denied a plea for an original writ of habeas corpus; in Tuesday’s order, it refused to allow him to appeal directly to the Supreme Court, bypassing the D.C. Circuit, from a federal judge’s dismissal of his challenge for lack of jurisdiction. The Court also has denied a plea for emergency relief against Belbacha’s transfer. The case denied on Tuesday was Belbacha v. Bush (07-173).

Posted in District of Columbia v. Heller, Uncategorized