UPDATED 11:30 a.m.

Another of the cases that the Supreme Court had agreed to decide during the current Term has now been settled and thus has been dismissed — the case of Huber v. Wal Mart Stores (07-480). The Court released a dismissal order Monday, separate from a series of orders based on actions at last Friday’s Conference.  The Huber case sought to test whether a disabled worker who is unable to carry out her present job is to be given a priority in assignment to a similar position she can perform, or must only be given a chance to compete for that job. The Eighth Circuit concluded that the Americans with Disabilities Act only requires an opportunity to compete for available positions. The Huber case was granted on Dec. 7 (with Justice Stephen G. Breyer, a Wal-Mart investor, not participating); it had been expected to be heard in March.

Among Monday’s orders, the Court asked the U.S. Solicitor General for the government’s view on whether workers may settle with their employers their claims under the Family and Medical Leave Act.  The issue arises in Progress Energy v. Taylor (07-539).  The Fourth Circuit Court, ruling in conflict with the Fifth Circuit Court, decided that a Labor Departmen regulation barred both past and future waiver of all FMLA rights.  The Labor Department has taken the position that its regulation permits backward-looking release of claims under that law.

The Court declined to hear a case testing whether terminally ill patients who have other treatment options have a constitutional right to access to experimental drugs not yet given final approval by the federal government — a claim rejected by the D.C. Circuit Court. The case is Abigail Alliance v. Von Eschenbach (07-444). Chief Justice John G. Roberts, Jr., took no part in the order on this case, apparently because, as a member the Circuit Court in March 2005, he was on a panel that denied the Food and Drug Administration’s motion to summarily uphold a District Court decision rejecting the Abigail Alliance bid for access to experimental drugs not yet available for general public use.

The Court also declined to hear three significant test cases on the scope of the Constitution’s Confrontation Clause, testing  that clause applies to evidence that is put before a jury or sentencing judge in sentencing.  The Court has long followed the view that admission of evidence at sentencing is more wide open than at trial.  The Eleventh Circuit Court followed that reasoning in refusing to extend the Sixth Amendment confrontation right to sentencing in Fields v. U.S. (07-6395), as did the Nevada Supreme Court in Johnson v. Nevada (06-10345) and Thomas v. Nevada (06-10347).  The Supreme Court had ruled in 1949 (Williams v. New York) that, at sentencing, judges may consider a wider range of evidence, perhaps including evidence that could not have been admitted at the guilt phase.

The Court granted no new cases beyond the four that were announced last Friday.

Among other cases denied, these were some of the issues:

** The authority of the Environmental Protection Agency, when it imposes a stricter limit on air pollution, to require some sources of pollution to continue to obey earlier, less stringent air quality standards. (National Petrochemical v. South Coast Air Quality, 07-311, and Chamber of Greater Baton Rouge v. South Coast Air Quality, 07-333.)

** Whether a judge or judge has the role of deciding whether a worker has been retaliated against for protesting discrimination in the workplace — an issue that divides the lower courts. (James v. Metro Government of Nashville, 07-367).

** The validity of a conviction fo wire fraud based upn electronic transfers of money that were not specifically alleged in the indictment. (Ratliff-White v. U.S., 07-471).

** Whether federal law that protects the right to public education of disabled pupils requires pre-school development services to be continued until an education plan is in place — an issue that has led to conflicting rulings in lower courts. (D.P., et al., v Broward County, Fla., School Board, 07-613).

Posted in Huber v. Wal-Mart, Uncategorized