TBA Law Blog

Posted by: Perry Craft & Michael Sheppard on Sep 24, 2010

Journal Issue Date: Oct 2010

Journal Name: October 2010 - Vol. 46, No. 10

In its 2009 term,[1] the Supreme Court issued 92 "signed opinions." Most opinions resolve a conflict between the circuits or decide issues of great public or legal significance. This article reports about a recent controversial opinion, appointment of a new justice, the highlights from the term, analyzes opinions likely affecting Tennessee lawyers or Tennessee law, and concludes by summarizing the changes in the court's makeup.

Note: Cases decided in this term are bold italic.

Controversy: A controversial high court opinion fuels criticism and debate. While public officials and citizens routinely criticize high court rulings, President Obama scolded the justices on a grand stage. During his nationally televised State of the Union speech, attended by dignitaries and six justices, he rebuked the court for striking federal law limiting corporations' independent expenditures to fund political campaigns.[2] He chided the court for allowing corporations to fund federal elections with little restraint. Bedecked in black robes, the justices sat in stony silence, except Justice Alito who shook his head in disagreement. The criticism prompted concerns and questions about judicial independence. If the justices are too easily cowed, will they stand as a bulwark against the encroachment of citizens' rights against powerful interests? Did the president go too far or stay within acceptable bounds?[3]


During the term, the court:

  • dodged a politically sensitive Guantanamo Bay detainee issue;[4]
  • while usually unsympathetic to ineffective assistance claims, out of the blue required criminal defense lawyers to advise alien clients about deportation risks before they plead;[5]
  • found a law firm liable under the Fair Debt Collection Practices Act for a mistake of law;[6]
  • rejected a challenge by a lawyer to the 2005 bankruptcy law's disclosure provisions;[7]
  • retreated from Miranda;[8]
  • hinted that quickly declaring a mistrial may implicate double jeopardy;[9]
  • continued to revere arbitration clauses[10] and interpret substantive requirements of federal arbitration law,[11] but reversed arbitrators who ordered class arbitration when an arbitration clause was silent on that point;[12]
  • ruled that substantive state law limiting class actions did not override federal procedural law (Rule 23);[13]
  • beggared the False Claims Act " again;[14]
  • applied the discovery rule in securities litigation[15] and held federal securities law did not apply extra-territorially;[16]
  • determined the NFL was not a single entity under antitrust law;[17]
  • limited attorneys' fees for prevailing parties;[18] narrowed the wire fraud statute and restricted the role of lawyers in voir dire;[19]
  • issued a significant Fifth Amendment Takings Clause opinion ruling against owners of private beachfront property;[20] held a federal sex offender registration law may not be applied retroactively;[21] and
  • instructed federal courts not to hear state tax disputes.[22]


Demand Letters and the Fair Debt Collection Practices Act: Before filing suit, lawyers often send letters or notices to a party demanding that he pay the amount owed or resolve a dispute. Otherwise, suit will be filed. In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA,[23] a law firm sent a complaint and notice of foreclosure to a homeowner stating that unless she disputed the debt "in writing," the firm would assume the debt was valid. The homeowner retained counsel who responded that the mortgage was current, which the law firm confirmed. Suit was dropped, but the law firm's troubles had just begun. The homeowner filed a class action suit against the law firm. The notice's "in writing" validation requirement may have violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.  § 1692, and in particular  § 1692 (g): a debt collector must send validation of the debt to the consumer within five days of the initial communication. The law firm's reliance on the FDCPA's bona fide error defense,  § 1692k(c), was misplaced. Ignorance of the law is no defense generally, and FDCPA liability is not limited to "willful" violations. The "bona fide error" defense does not apply to a violation resulting from a debt collector's mistake of law about the act's legal requirements, an interpretation reinforced by the act's structure, purposes, and text. The law firm lost.

Comments: When an individual receiving a demand letter is a "consumer" involving a "consumer debt," the FDCPA applies if the attorney fits within the statutory definition of "debt collector."[24] While the act covers law firms that regularly collect debts for third parties, the act may reach other law firms unaware of its reach. Though the FDCPA's prohibitions largely focus on collection agencies' abusive practices aimed at consumer debtors, the FDCPA imposes on "debt collectors" (including lawyers who are "debt collectors") disclosure and validation requirements and forbids unfair, deceptive or abusive practices in collecting a debt. A violation gives consumer debtors remedies, including statutory damages of $1,000 and attorney's fees.

Interlocutory Review, Attorney-Client Privilege: In Mohawk Indus., Inc. v. Carpenter,[25] a trial court found Defendant waived attorney-client privilege and ordered Defendants to disclose confidential information. Defendant filed an interlocutory appeal. Federal appellate jurisdiction usually extends to final judgments, 28 U.S.C.  § 1291. The collateral order doctrine set forth in Cohen v. Beneficial Industrial Loan Corp.[26] allows collateral review of a relatively few types of trial orders. An order compelling discovery or compelling disclosure of attorney-client materials however is not immediately appealable.

Comments: Federal appellate courts hear few interlocutory appeals of trial court orders for obvious and sound reasons. Appellate review of final judgments serves to review serious error, but if a party prevails on a key ruling unrelated to the merits, an appeal of a final judgment may prove futile and force a party to settle or withdraw from litigation without regard to the merits.

Jurisdiction: The diversity statute, 28 U.S.C.  § 1332, confers jurisdiction on federal courts where the parties are "citizens of different states." Under  § 1332(c) (1), a "corporation" is a "citizen" of the State both (i) where it is incorporated and (ii) where it has its principal place of business. Lower courts had wrestled with the meaning of "principal place of business." In Hertz Corp. v. Friend,[27] the court provided guidance. A corporation's principal place of business is its "nerve center" or the place where its high level officers direct and control corporate activities, which normally means corporate headquarters.

Comments: Generally, federal trial practice is more formal, more expensive, and perceived as less plaintiff-friendly than state trial practice. For example, in state court, notice pleading is still the rule, but in federal court, heightened pleading is required. State trial courts permit expert testimony under a far easier standard than federal courts. Unlike state courts, federal courts are not reluctant to grant summary judgment. In addition, a federal judge may exclude lawyers from conducting voir dire. A case outcome may depend on which court, federal or state, hears the dispute. See Lincoln Property Co. v. Roche.[28] Since diversity is often the basis for removal from state to federal court, "principal place of business's" meaning is not just academic, but key.

Voir Dire, "Honest Services" for Wire Fraud," and Change of Venue: The collapse of Enron " then the nation's seventh-largest business " resulted in bankruptcies, huge losses for investors and pensioners, the demise of a major CPA firm, congressional, criminal, and regulatory investigations and reforms, convictions, pleas, suits, appeals, and three high court opinions.   In Skilling v. U.S.,[29]   the government accused Skilling, a former Enron CEO, with conspiring to prop up Enron's stock price by manipulating its books and records and hiding its true financial condition, thereby misleading investors and the public. Skilling received millions in stock, salary and bonuses, but never took a bribe or received a kickback. The government charged him with multiple counts ranging from insider trading and conspiracy to commit wire fraud by depriving Enron and its shareholders of the intangible right of his "honest services."   The wire-fraud statute, 18 U.S.C.  § 1343, criminalizes use of wires to further "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises."   The honest-services statute,  § 1346, defines "scheme or artifice to defraud" to include depriving "another of the intangible right of honest services."   Skilling was convicted on most counts.  

The high court heard three issues.   First, in spite of hostile press reports, community outrage, and individuals' losses and hardships when Enron collapsed, Skilling was not entitled to a change of venue, which Federal Rule of Criminal Procedure 21 governs.   Pervasive, adverse pretrial publicity does not inevitably lead to an unfair trial or a biased jury pool.

Second, the trial judge ruled that voir dire would ferret out any biases of prospective jurors; however, opining that prospective jurors would be more candid in responding to questions from him rather than from the lawyers, the trial judge conducted voir dire and denied Skilling's motion for attorney-led voir dire. Skilling complained the judge asked conclusory questions, failed adequately to probe for jurors' bias, and took prospective jurors' responses at face value. The court sent a questionnaire to prospective jurors to uncover any bias resulting from the pretrial publicity and gave Skilling additional peremptory challenges.   In a high profile trial with extensive pretrial media coverage, defense lawyers had no realistic ability to probe prospective jurors during voir dire.   The court found no actual prejudice infected the jury.   Jury selection is within the province of the trial judge, who committed no error in conducting voir dire.          

Third, the high court limited the wire fraud statute by narrowing the "honest services" provision, thereby avoiding deciding whether it was void for vagueness and violated the Fifth Amendment's Due Process Clause.   The court held that the "honest services" provision in the wire fraud statute only reaches schemes to defraud involving bribes and kickbacks. Enron's conspiracy to prop up stock prices did deceive investors, but Skilling took no bribe or kickback. Thus the jury improperly convicted Skilling of conspiracy to commit "honest-services" wire fraud, 18 U.S.C.  § § 1341, 1346.   On remand, lower courts will decide whether to apply the harmless error rule and uphold the convictions or vacate them.

Comments,   Limiting Lawyer-led Voir Dire: Criminal defendants generally lose at trial, but are entitled to a fair trial.   Many lawyers lament that most prospective jurors are pro-government and believe neither the U.S. nor a state would charge an innocent man, and that a juror's assurance of "fairness" does not necessarily reveal his true feelings.   In most federal civil cases, the stakes are often substantial, and juror biases " pro-plaintiff or pro-defendant " can dictate outcomes.   Voir dire is critical in ferreting out bias, mounting a challenge for cause, deciding to use a peremptory challenge, and detecting jurors' leanings and misconceptions.   Many federal judges already limit lawyers in voir dire.   Skilling will encourage this trend.  

Critics of lawyer-led voir dire argue lawyers unduly lengthen voir dire, bore the jury pool, and while detecting bias is one goal, lawyers improperly argue their case.   Lawyers are advocates in an adversary system.   When courts relegate lawyers to a minor role during voir dire, whether based on efficiency, personal preference, or convenience, they affect their   ability to represent   clients and shape their   cases.   Regardless, lawyers must adapt, submit written voir dire questions in advance to the judge, and write and request follow-up questions.

"Honest Services": The government has long used the mail fraud and wire fraud statutes to charge public officials with corruption.   Skilling's "honest services" limitation dealt the government a blow, but not a fatal blow.   In prosecuting corruption, the government will charge defendants with other crimes.    

Rule 15's Relation Back Doctrine: In Krupski v. Costa Crociere S.p.A.,[30] plaintiff suffered a personal injury on a cruise ship and sued Costa Cruise, not the responsible party, its related corporate entity, Costa Crociere. Fed. R. Civ. Proc. 15(c) controls when an amended pleading "relates back" to the date of a timely filed original pleading, even when the filing is outside the statute of limitations. Where an amended pleading changes a party or party's name, if "the party to be brought in by amendment ... knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity," Rule 15(c)(1)(C) controls. The relation back doctrine depends on what the party to be added knew or should have known, not on the amending party's knowledge or timeliness in seeking to amend the pleading. Costa Crociere and Costa Cruise were interrelated and had similar names. Costa Crociere should have suspected a mistake was made when Costa Cruise was named as a party in a complaint that actually described its activities and should have known that the failure to name it a defendant resulted from a mistake about the proper party's identity. Plaintiff could amend her complaint.

Comments: A plaintiff may find it difficult to ascertain a defendant's correct identity. When the wrong party is sued, Rule 15 answers the question about substituting the proper party and avoiding dismissal based on the statute of limitations.

Allocating Risk of Loss for Goods Shipped from Abroad: In Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp.,[31] cargo owners delivered goods for shipping to "K Line" from China to inland U.S. destinations. K Line issued through bills of lading (single document for ocean and inland transport) with a "Himalaya Clause," which extended the bills' defenses and liability limitations to subcontractors. The through bills provided that K Line could subcontract to complete the journey, directed that the Carriage of Goods by Sea Act (COGSA), 46 U.S.C.  § 30701 (which regulates bills of lading issued by ocean carriers in foreign trade), controlled, and set venue in Tokyo for disputes. K Line arranged the journey and subcontracted with Union Pacific for rail shipment in the U.S. K Line ships carried the goods to a U.S. port where the cargo was loaded onto a train and destroyed in an inland derailment. Under the Carmack Amendment, 49 U.S.C.  § 11706(a), the receiving carrier (here, Union Pacific) is liable for loss during transit. Carmack restricts domestic carriers' ability to limit liability by contract and limits venue to federal and state courts. When a bill of lading requires substantial carriage of goods by sea, the goods are in maritime commerce and federal maritime law, and COGSA, control. Carmack did not change the result. Here, K Line issued through bills in maritime commerce and extended its terms to the journey's inland domestic segment. That K Line chose to use rail transport to complete one segment of the journey under its maritime contracts did not put it within Carmack's reach. The cargo owners lost and must assert their claims in Tokyo.

Comments: Domestic law prevents domestic carriers from easily shifting risk of loss to their customers or discouraging claims through venue selection clauses forcing suit in distant forums. When goods are shipped from overseas or are within maritime commerce, the court has made clear that shippers may limit their liability. Lawyers should counsel clients accordingly.

The Petroleum Marketing Practices Act (PMPA), 15 U.S.C.  § 2801, limits oil company franchisors in terminating or failing to renew a franchise,  § 2802. In Mac's Shell Serv. v. Shell Oil Prods. Co. LLC,[32] service-station franchisees (dealers) filed PMPA suits claiming the franchisors constructively terminated their franchises and failed to renew their franchises by raising their rents so high they could not economically continue in business. The franchisor's acts did not compel the dealers to abandon their franchises who had accepted renewal agreements. The dealers found themselves between Scylla and Charybdis. If they accepted the renewals, they were not "terminated" but would die on the vine. Accepting a new agreement "under protest" did not save the PMPA claims. If they rejected the new agreements, they waived their rights. The court ruled that a dealer may not recover for constructive termination under the PMPA if the franchisor's wrongful acts did not compel him to abandon his franchise. A dealer who signed and operated a renewal agreement has no "constructive nonrenewal" claim. The dealers lost their PMPA claims, but the court upheld the dealers' $1.3 million jury verdict against the franchiser for violating the UCC's "open pricing term" provision.

Comments: The PMPA was designed to level the playing field between oil company franchisers and their franchised dealers. The outcome is at odds with the act's purposes: to prevent an oil company from imposing unreasonable terms on a dealer who has made a substantial investment in a dealership and force an end to the relationship or slowly bleed the franchisee. The dealers' only recourse was under state law.

International Child Abduction Remedies Act (ICARA): In Abbott v. Abbott,[33] a Chilean Court had granted Mother, a U.S. citizen, primary custody of the parties' child and Father, a British citizen, substantial visitation rights. While litigating in Chilean courts, Mother removed the child to Texas. The father asked domestic courts to return the child to Chile. The 1980 Hague Convention on the Civil Aspects of International Child Abduction and federal law implementing it, ICARA, 42 U.S.C.  § 11601, applied. The U.S. signed the Convention. A child abducted in violation of "rights of custody" must be returned to his country of habitual residence, subject to exceptions (danger to a child). A parent has a right of custody by reason of her ne exeat right: the authority to consent before the other parent may take the child to another nation. The State Department's amicus urged the court to apply ICARA. International child abductions in domestic disputes are common. If U.S. courts refuse to honor the Convention, other nations would follow suit, thereby undercutting its purposes and remedies.

Comments: It is not uncommon for American citizens to have children with foreign nationals and live abroad. After divorces or break-ups, one party may remove the minor children to another country. Parents and children are caught up in frustrating, time-consuming litigation between dueling courts in different nations issuing conflicting orders based on different laws. The court sent a message to lower courts: Give effect to Convention and ICARA.

Federal Civil Commitment, Necessary & Proper Clause: A federal civil-commitment statute, 18 U.S.C.  § 4248, authorizes the U.S. to detain mentally ill, sexually dangerous federal inmates after their prison terms expire. In Kan. v. Hendricks,[34] the court ruled similar state laws do not offend due process. In U.S. v. Comstock,[35] the court held the federal law was within the reach of congress's constitutional powers and was appropriate legislation under the "necessary and proper"[36] clause, Const. Art. I,  § 8, cl. 18. A judge may order civil commitment of a federal inmate after his sentence expires if he is a violent sex offender or child molester.

Comments: Few argue with the outcome: keep dangerous sex offenders off the streets. The ruling rests on the "necessary and proper" clause. No enumerated constitutional power " whether a broadly construed power or even by way of the Fourteenth Amendment " authorizes congress to enact this type legislation, regardless of its salutary purposes. Over time, the court generally has broadly construed the "necessary and proper" clause, but has typically identified a particular power to which to apply the clause. Reading the clause broadly expends the power of congress and the federal government. In spite of a majority of conservative justices on the court for a generation, the court has not seriously clipped federal power, largely unchecked for three quarters of a century. Although this ruling does not directly affect Tennessee law, it continues the debate sounded by the framers:[37] What powers does the limited federal government possess?

Attorney's Fees: The court decided three cases about attorney's fees during the term. When a plaintiff prevails in a federal civil rights law suit, a fee shifting statute, 42 U.S.C.  § 1988, allows for recovery of attorney's fees. Under federal law, the lodestar method is used to compute fees (hours worked times billing rate). In Perdue v. Kenny A.,[38] the court considered enhancement of a lodestar fee. A trial judge determined that lawyers obtained substantial relief for Georgia's foster children and awarded an enhanced fee based on their efforts and result. The court ruled that while attorney's fees may be enhanced for superior performance, enhancement will rarely occur. A factor used in the lodestar analysis " complexity or superior performance " is already included in the lodestar rate and cannot form the basis for an additional enhancement.

Comments: When federal law provides that a prevailing party may be awarded a reasonable attorney's fee, the high court decides what constitutes a "reasonable" fee, and its recent rulings do not favor plaintiff's lawyers.

The Equal Access to Justice Act (EAJA), 28 U.S.C.  § 2412(d), provides that a "court shall award to a prevailing party" "fees" in a suit brought against the U.S. unless its position was substantially justified. In Astrue v. Ratliff,[39] a lawyer won Social Security benefits for a claimant and was awarded attorney's fees ($2,000) under the EAJA. The U.S. learned the claimant owed it a debt and administratively offset the fees to satisfy the debt, 31 U.S.C.  § 3711(a). No exemption to the offset applied to EAJA attorney fees awards. While the EAJA directs that courts "shall award to a prevailing party" "fees" "incurred by that party," "prevailing party" is a "term of art" in fee statutes and refers to the prevailing litigant. The EAJA "awards" fees to the litigant, not the lawyer. Attorney's fees are subject to a federal administrative offset.

Comments: The ruling undercuts fee shifting statutes' purposes: encourage claimants to retain counsel and secure their rights. Though lawyers can assess legal risks before taking a case, they have no realistic means to determine if a client owes the U.S. a past debt subject to offset.

Earned Retirement Income Security Act (ERISA): In Hardt v. Reliance Std. Life Ins. Co.,[40] the court ruled that generally in ERISA cases an award of attorney's fees does not require that the party be a "prevailing party." After a Plan Administrator denied her disability claim, the claimant filed suit challenging that denial. The trial judge instructed the plan administrator to consider critical evidence that supported claimant's position, which it had ignored, and made clear that claimant should receive benefits. The plan administrator then granted disability benefits. ERISA, 29 U.S.C.  § 11232(g)(1) permits courts to award a "reasonable attorney's fee and costs" to "to either party" at its "discretion." The statute does not require that a party be a prevailing party to obtain an award. If the fee claimant has achieved "some degree of success on the merits," a court has discretion to award fees. The claimant won.

Comments: When a plan administrator denies a claim " often a disability claim, the court signaled the green light to award attorney's fees.

The 2005 Bankruptcy Abuse Prevention & Consumer Protection Act (BAPCPA) was passed to "fix" bankruptcy system abuses and regulate "debt relief agencies," professionals who provide bankruptcy assistance to consumer debtors, 11 U.S.C.  § § 101(3). Under the Act, debtors' attorneys are "debt relief agencies." In Milavetz, Gallop & Milavetz, P.A. v. U.S.,[41] the court upheld the Code's disclosure requirements,  § 528(a), (b)(2), from constitutional challenge. Thus, when debtors' bankruptcy attorneys advertise, they must make these disclosures. Second,  § 526(a)(4) prohibits lawyers from advising consumer clients to commit bankruptcy abuse or heap on debt for an invalid purpose "in contemplation" of bankruptcy. To avoid striking the provision on free speech grounds, the court narrowed it. Thus, a lawyer may advise a client to obtain credit to buy food or necessities without violating  § 526(a)(4).

Comments: By defining lawyers as debt relief agencies, Congress lumped lawyers with assorted other groups and compelled them to make the same disclosures. Unlike the other assorted groups, lawyers are officers of the court and subject to mandatory ethical rules enforced by state boards. Historically, states have regulated the bar, but in the last generation, Congress has enacted laws, such as BAPCPA, and treated lawyers as just another interest group. Due to extensive state and judicial oversight of the bar, at one time, the court was not reluctant to protect the bar from the impact of demeaning laws, such as BAPCPA. The ruling likely will encourage further episodic, piecemeal regulation of the bar by congress.

Sarbanes-Oxley: After scandals rocked several publicly traded firms and their accountants, congress passed the 2002 Sarbanes-Oxley Act. The act established the Public Company Accounting Oversight Board, a nonprofit corporation. The board has broad authority to control, investigate, and discipline accountants and accounting firms that audit publicly held firms, enforce securities laws and write accounting standards, and regulate accounting firms' practices from top to bottom. In Free Enterprise Fund v. Public Co. Accounting Oversight Bd.,[42] an accounting firm challenged the act, claiming the board's appointees could only be terminated for good cause by SEC commissioners who were not readily subject to presidential control. The provision undercut the president's ability to take care that the "Laws be faithfully executed," Const. Art. II,  § 1, cl. 1. The court struck that provision, but otherwise upheld the act.

Comments: Though Sarbanes-Oxley applies to accounting firms doing business for publicly traded firms and gives the board total control over their practice, it has far-reaching implications for accountants in this state and throughout the nation.

DNA Evidence: In McDaniel v. Brown,[43] at trial the State's expert testified the probability that Defendant's DNA did not match the DNA sample found at a rape crime scene was 1 in 3,000,000. The odds were highly misleading because of the prosecutor's fallacy: the prosecutor confused random match probability with source probability [1:132] and equated random match probability with the same probability that defendant was the source of the DNA [source probability]. In effect, jurors were told the probability, based on DNA testing, that Defendant was innocent only 1 in 3,000,000. But source probability odds of 1:132 combined with other evidence sufficed to uphold the state conviction upon habeas review.

Comments: Undoubtedly, DNA evidence is powerful, but experts and lawyers may overstate its significance, confuse facts, or make faulty assumptions. An expert in DNA testing may not qualify as an expert in probability. Thus, lawyers may consider contesting DNA testing procedures, samples, labs, question the State's assumptions, and challenging the State's experts.

First Amendment, Corporate Financing of Elections: In Citizens United v. FEC,[44] to sway voters during the presidential primary season, a non-profit corporation released Hillary: The Movie, an unflattering documentary that it wanted to widely distribute on cable for free. The 2002 Bipartisan Campaign Reform Act barred any corporate "electioneering communication," defined as a "broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office made within 30 days of a primary." 2 U.S.C.  § 441b(b)(2),  § 434(f)(3)(A). Reversing Austin v. Mich. Chamber of Comm.,[45] and in part, McConnell v. FEC,[46] on free speech grounds, the court found "more speech is always better," rejected the anti-distortion rationale (corporate wealth buys elections) and struck a key limitation on corporations' ability to finance elections, but upheld disclosure and disclaimer provisions

Comments: Disregarding its usual procedures, the court reached far afield to decide the case. Though Congress has limited corporations' financing of federal elections for a century, the court opened the gate and reversed established and recent precedents. Since the court's based its holding on First Amendment grounds and the First Amendment applies to states, state laws that limit corporate expenditures on state or local elections may not survive constitutional challenge.

Bivens & Federal Torts Claim Act (FTCA): In Hui v. Castaneda,[47] Castaneda was held by Immigration and Customs officials. A lesion developed on his penis. In spite of lower level U.S. Public Health Service (PHS) providers recommending a biopsy, diagnosis, and treatment, a PHS doctor did nothing. Upon release, he learned that he had cancer that was fatal. The FTCA, 28 U.S.C.  § § 1346, allows substituting the U.S. as defendant when federal employees are sued for damages caused in their employment. 42 U.S.C.  § 233(a) makes the FTCA the "exclusive" remedy for personal injuries caused by PHS employees performing a medical function within their employment. The court held that  § 233(a)'s plain language only permitted suit against the U.S. A plaintiff may not personally sue a PHS doctor for malpractice for violating his Fourteenth Amendment rights as a constitutional tort claim under Bivens v. Six Unknown Fed. Narc. Agents.[48] The result carries consequences. Bivens provides a far superior remedy to the FTCA. A Bivens suit allows for punitive damages, trial by jury, and FTCA's caps do not apply.

Comments: This court has generally frowned upon imposing liability on public employees and has not expanded Bivens in years.

Second Amendment Applies to States: In D.C. v. Heller, 128 S. Ct. 2783 (2008),49 the court held the Second Amendment protects the right to keep and bear arms for self-defense and struck a D.C. law that banned possessing handguns at home. In McDonald v. Chicago,[50] the court ruled that through the Fourteenth Amendment, the Second Amendment applied to the States " and thus to cities " and prohibited cities from enforcing laws banning handguns ownership in the home for self-defense, but a majority could not agree on the rationale. Nineteenth century cases held the Second Amendment did not apply to States. Since then, the court has held most of the Bill of Rights' guarantees apply to the States through the Fourteenth Amendment's Due Process Clause and the selective incorporation doctrine: particular rights are fundamental to a scheme of "ordered liberty." Since both the framers and drafters of the Fourteenth Amendment viewed the right to keep and bear arms fundamental for self-defense, the plurality wrote the Second Amendment applied to the States through the Due Process Clause. Justice Thomas wrote the Second Amendment applied to the States by the Fourteenth Amendment's Privileges and Immunities Clause. A majority agreed that the Cities' laws banning handgun possession violated the Second Amendment. The gun owners won.

Comments: Heller and McDonald will prompt lawsuits testing state and local laws regulating firearms. McDonald's rationale is critical. If the court applies a selective incorporation analysis, states and cities will face a more exacting standard to save their laws, but if it applies a privileges and immunities clause analysis, they will have more leeway to regulate firearms.

Fourth Amendment: In City of Ontario v. Quon,[51] a city contracted with Arch, a communications firm, to supply pagers that, in turn, it provided its police officers The city's written policy restricted pagers' use to police business and limited the number of messages that could be sent. Quon, a police officer, exceeded the limit more than once and reimbursed the city for excess usage. Since some officers routinely exceeded their allotment of texts, police supervisors obtained text transcripts from Arch to find if the city's limits were too low for police work. The supervisors reviewed texts when officers were on duty. Most were personal. Fourth Amendment protection extends to securing privacy against the government's arbitrary, invasive acts and applies to government employers. A government employee has a legitimate privacy expectation, but an employer's intrusion on that expectation for non-investigatory, work-related purposes or investigations for work-related misconduct is adjudged by its reasonableness under the circumstances. Operational realities may lessen employee privacy expectations and inform the reasonableness of a workplace search. Here, the city made clear that the pager messages were not private. The court ruled for the city. Quon lost his civil rights suit.

Comments: Government employers often provide mobile electronic devices to their employees. Under the Fourth Amendment, government employers have substantial leeway in reviewing the content on those devices, whether by directly examining them or by obtaining emails, messages, and communications sent or received on the devices from third party-providers.

Fifth Amendment, Retreating from Miranda: In Berghuis v. Thompkins,[52] the court retreated from Miranda.[53] After giving defendant Miranda warnings, police interrogated him. Defendant never said he wished to remain silent or wanted an attorney, but mostly was silent. After three hours, police asked him if he believed in God and prayed for "forgiveness for shooting that boy." He said "yes." State appellate courts affirmed his conviction. His federal habeas petition claimed his statements were involuntary and inadmissible. Federal habeas law severely restricts federal courts from granting the writ. On that basis, the court could have upheld the conviction, but instead broadly ruled trial courts may infer a waiver of the right to remain silent. Miranda mainly ensures an accused understands his rights to remain silent and to counsel. A defendant may implicitly waive the right to remain silent, which here, the defendant did.

Comment: The high court cut back Miranda's protections. After detectives gave Miranda warnings, they kept a defendant in a small room for three hours at a police station. Miranda recognized that the environment in which custodial interrogation occurs may be inherently coercive. This ruling runs contrary to that reality.

Re-questioning by Police: When a suspect receives Miranda warnings and states he wishes to remain silent or have a lawyer present, interrogation must cease. Police later may question a suspect. In Edwards v. Ariz.,[54] when an accused invoked his right to have counsel present during custodial interrogation, his later response to police-initiated custodial interrogation did not constitute a valid waiver. A Miranda waiver requires voluntary choice. Edwards' presumption of involuntariness ensures police will not badger an accused into confessing because of mounting coercive pressures of prolonged police custody. Edwards is a judicial rule, not a constitutional mandate. In Md. v. Shatzer,[55] while imprisoned, the accused was asked about other crimes. He received Miranda warnings and refused to talk. Two years later, he was questioned again, read Miranda warnings and confessed. The high court rejected his claim that his waiver was involuntary and announced a rule: 14 days after an accused invokes his Miranda rights, generally police may question him again. The accused waived his rights and lost.

Comments: The court specified the times between when a defendant first invokes his Miranda rights and when police may re-question him. Criminal defense lawyers may emphasize to their clients that police may try to initiate interrogation again and warn about the consequences.

Miranda Language: In Fla. v. Powell,[56] the court held police have latitude to choose the words to convey Miranda warnings before custodial interrogation begins. Defendant confessed after signing the standard local police form, which read:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

Defendant claimed the highlighted warning was ambiguous, clashed with other warnings, and did not adequately address in-custody interrogation's coercive environment. Miranda makes police clearly inform individuals held for questioning about their rights. No particular language is required so long as police reasonably convey the warnings. The court declined to parse language as it ordinarily does in construing statutes or contracts. Defendant lost.

Comment: While deferring to police as to the warnings' language, ironically the court parses a defendant's words and analyzes his actions to find if a defendant has waived his Miranda rights.

Sixth Amendment Ineffective Assistance of Counsel and Risks of Removal: In Padilla v. Ky.,[57] the court held the Sixth Amendment requires lawyers to advise criminal clients when their guilty pleas will result in deportation (removal). Here, Padilla pled to a drug charge and claimed his lawyer failed to advise him the plea would result in removal. Except for minor marijuana offenses, federal law requires removal for most drug convictions.58 Since the law on that point was clear, counsel must advise clients about serious consequences arising from a plea.

Comments: The court stretched the boundaries of effective assistance of counsel. By a stroke of a judicial pen, the court directed criminal defense lawyers to advise non-citizen criminal defendants about the consequences under immigration law for entering a plea, but relatively few criminal defense lawyers are versed in immigration law, a complex, specialized area of law. See Carachuri-Rosendo v. Holder.[59]

The Eighth Amendment prohibits "cruel and unusual punishments." In Roper v. Simmons, 543 U.S. 551 (2005),[60] the court ruled that states may not constitutionally impose the death penalty on juvenile offenders. In Graham v. Fla.,[61] a juvenile offender committed serious crimes and was sentenced to serve life without parole. The court extended Roper's rationale and found that because of their youth and lack of maturity, juveniles lack the culpability of adults and may not be sentenced as harshly. The State cannot make a categorical judgment at the initial sentence to incarcerate a juvenile for life with no parole.

Comments: The court's modest holding limited the State from making an unreviewable, final decision about a juvenile offender at the initial sentence, but did not rule Florida could not incarcerate the juvenile for life.

Civil Rights, Physical Force: In Wilkins v. Gaddy,[62] the court affirmed Hudson v. McMillian:[63] excessive physical force used against an inmate may constitute cruel and unusual punishment even if the inmate does not suffer serious injury. "De minimis" injuries may form an Eighth Amendment excessive force claim. When prison guards use force "maliciously and sadistically," not to maintain order, a prisoner's civil rights suit may proceed.

Comments: The court has narrowed federal civil rights law in recent years, but a majority sent a signal that prison guards face liability if they senselessly beat prisoners.

Changes in the court: Since 2005, four justices have joined the court. Justice Stevens retired in June 2010, and Elena Kagan has taken his place, so that during the 2010 term, there are three justices who are women. Of the nine justices, four are Democrats, and five are Republicans; however, the court likely will remain conservative, and Justice Kennedy is expected to remain the swing vote.


  1. Decisions from the 2009 term are emboldened and italicized. The 2009 term began the first Monday in October 2009, and the court releases its last "signed opinions" for the Term prior to its summer break, which begins in June.
  2. Citizens United v. FEC, 130 S.Ct. 876 (Jan. 21, 2010) (Kennedy, J.).
  3. The author expresses no view as to the answers. Members of the bar have formed their own judgments.
  4. Kiyemba v. Obama, 130 S.Ct. 1235 (Mar. 1, 2010) (Per Curiam) (Court avoided deciding whether to release Guantanamo Bay detainees into the U.S. where Executive detention is indefinite and without legal authorization. Most detainees had accepted offers to resettle elsewhere, but five rejected them and were still held at Guantanamo).
  5. Padilla v. Kentucky, 130 S.Ct. 1473 (Mar. 31, 2010) (Mar. 31. 2010) (Stevens).
  6. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605 (Apr. 21, 2010) (Sotomayor, J.).
  7. Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S.Ct. 1324 (Mar. 8, 2010) (Sotomayor, J.).
  8. Berghuis v. Thompkins, 2010 U.S. LEXIS 4379 (Jun. 1, 2010) (Kennedy, J.); Md. v. Shatzer, 130 S. Ct. 1213 (Feb, 24, 2010) (Scalia, J.); Florida v. Powell, 130 S. Ct. 1195 (Feb. 23, 2010) (Ginsburg, J.).
  9. Renico v. Lett, 130 S.Ct. 1855 (May 3, 2010) (Roberts, C.J.).
  10. Rent-A-Center, W., Inc. v. Jackson, 130 S. Ct. 2772 (Jun. 21, 2010) (Scalia, J.).
  11. Granite Rock Co. v. Int'l Bhd. of Teamsters, 130 S. Ct. 2847 (Jun, 24, 2010) (Thomas, J.).
  12. Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S.Ct. 1758 (Apr. 27, 2010) (Alito, J.).
  13. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S.Ct. 1431 (Mar. 31, 2010) (Scalia, J.).
  14. Graham Co. Soil & Water Conserv. Dist. v. U.S. ex rel. Wilson, 130 S.Ct. 1396 (Mar. 30, 2010) (Stevens, J.).
  15. Merck & Co. v. Reynolds, 130 S.Ct. 1784 (Apr. 27, 2010) (Breyer, J.).
  16. Morrison v. Nat'l Austl. Bank Ltd., 130 S. Ct. 2869 (Jun. 24, 2010) (Scalia, J.).
  17. Amercian Needle Inc. v. NFL, 130 S.Ct. 2201 (May 24, 2010) (Stevens, J.).
  18. Perdue v. Kenny A., 130 S. Ct. 1662 (Apr. 21, 2010) (Alito, J.).
  19. Skilling v. U.S., 130 S. Ct. 2896 (Jun. 24, 2010) (Ginsburg, J.).
  20. Stop the Beach Renourishment Inc. v. Fla. Dep't of Envtl. Prot., 130 S.Ct. 2592 (Jun. 17, 2010) (Scalia, J.).
  21. Carr v. U.S., 130 S. Ct. 2229 (Jun. 1, 2010) (Sotomayor, J.).
  22. Levin v. Commerce Energy Inc., 176 L. Ed. 2d 1131 (Jun. 1, 2010) (Ginsburg, J).
  23. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605 (Apr. 21, 2010) (Sotomayor, J.).
  24. 15 U.S.C.  § 1692a (6).
  25. Mohawk Indus. Inc. v. Carpenter, 130 S. Ct. 599 (Dec. 8, 2009) (Sotomayor, J.).
  26. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
  27. Hertz Corp. v. Friend, 130 S. Ct. 1181 (Feb. 23, 2010) (Ginsburg, J.).
  28. Lincoln Property Co. v. Roche, 126 S.Ct. 606 (2005).
  29. Skilling v. U.S., 130 S. Ct. 2896 (Jun. 24, 2010) (Ginsburg, J.).
  30. Krupski v. Costa Crociere S.p.A., 2010 U.S. LEXIS 4567 (Jun. 7, 2010) .Ct. 2518 (Sotomayor, J.).
  31. Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S. Ct. 2433 (Jun. 21, 2010) (Kennedy, J.).
  32. Mac's Shell Serv. v. Shell Oil Prods. Co. LLC, 130 S. Ct. 1251 (Mar. 2, 2010) (Alito, J.).
  33. Abbott v. Abbott, 130 S.Ct. 1983 (May 17, 2010) (Kennedy, J.).
  34. Kan. v. Hendricks, 521 U.S. 346 (1997).
  35. U.S. v. Comstock, 130 S.Ct. 194 (May 17, 2010) (Breyer, J.).
  36. The Congress shall have Power ... (t)o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ...
  37. The Federalist No. 45, p. 328 (B. Wright ed. 1961) (J. Madison).
  38. Perdue v. Kenny A., 130 S. Ct. 1662 (Apr. 21, 2010) (Alito, J.).
  39. Astrue v. Ratliff, 2010 U.S. LEXIS 4763 (Jun. 14, 2010) (Thomas, J.).
  40. Hardt v. Reliance Std. Life Ins. Co., 130 S.Ct. 2149 (May 24, 2010) (Thomas, J.).
  41. Milavetz, Gallop & Milavetz P.A. v. United States, 130 S.Ct. 1324 (Mar. 8, 2010) (Sotomayor, J.).
  42. Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138 (Jun. 28, 2010) (Roberts, C.J.).
  43. McDaniel v. Brown, 130 S.Ct. 665 (Jan. 11, 2010) (Per Curiam).
  44. Citizens United v. FEC, 130 S.Ct. 876 (Jan. 21, 2010) (Kennedy, J.).
  45. Austin v. Mich. Chamber of Comm., 494 U.S. 652 (1990).
  46. McConnell v. FEC, 540 U.S. 93 (2003).
  47. Hui v. Castaneda, 130 S. Ct. 1845 (May 3, 2010) (Sotomayor, J.).
  48. Bivens v. Six Unknown Fed. Narc. Agents, 403 U.S. 388 (1971).
  49. D.C. v. Heller, 128 S. Ct. 2783 (2008).
  50. McDonald. Chicago, 130 S.Ct. 3020 (Jun. 28, 2010) (Alito, J.).
  51. City of Ontario v. Quon, 130 S. Ct. 2619 (Jun. 17, 2010) (Kennedy, J.).
  52. Berghuis v. Thompkins, 130 S.Ct. 2250 (Jun. 1, 2010) (Kennedy, J.).
  53. Miranda v. Ariz., 384 U.S. 436 (1966) (Prior to custodial interrogation, suspect must be warned about his rights " to remain silent; anything he says can be used against him in court; to an attorney or if he cannot afford an attorney one will be appointed for him prior to questioning).   
  54. Edwards v. Ariz., 451 U.S. 477 (1981).
  55. Md. v. Shatzer, 130 S. Ct. 1213 (Feb. 24, 2010) (Scalia, J.),
  56. Florida v. Powell, 130 S. Ct. 1195 (Feb. 23, 2010) (Ginsburg, J.).
  57. Padilla v. Kentucky, 130 S.Ct. 1473 (Mar. 31, 2010) (Stevens).
  58. 8 U.S.C.  § 1227(a)(2)(B)(i).
  59. Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (Jun. 14, 2010) (Stevens, J.).
  60. Roper v. Simmons, 543 U.S. 551 (2005).
  61. Graham v. Fla., 130 S.Ct. 2011 (May 17, 2010) (Kennedy, J.).
  62. Wilkins v. Gaddy, 130 S. Ct. 1175 (Feb. 22, 2010) (Per Curiam).
  63. Hudson v. McMillian, 503 U.S. 1 (1992).

Perry A. Craft PERRY A. CRAFT is a partner in the law firm of Craft & Sheppard PLC. A former deputy attorney general, he regularly lectures on developments and trends in the Supreme Court, constitutional law and federal practice. He has practiced law for nearly 30 years and litigated cases ranging from personal injury to class actions, trade regulation, commercial practices, administrative and regulatory law to constitutional law, and federal and state statutory causes of action in state and federal courts.

He may be reached at (615) 309-1707 or through their Web site, www.craftsheppardlaw.com.


Michael G. Sheppard MICHAEL G. SHEPPARD is a partner in the law firm of Craft & Sheppard PLC. A former insurance executive, he has more than 30 years’ experience in personal injury and insurance law. He has served as general counsel, has practiced in state and federal courts and is admitted in Tennessee and Ohio. He has managed litigation for a number of companies and now practices in the areas of ERISA, medical malpractice, product liability, workers’ compensation, personal injury and business transactions.

He may be reached at (615) 309-1707 or through their Web site, www.craftsheppardlaw.com.