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Other Cases of Note

City of Ontario, California v. Quon: The city asked the Court to overturn a Ninth Circuit ruling that it had violated the Fourth Amendment privacy rights of Jeffrey Quon, a member of the city's police department SWAT team, when it reviewed transcripts of his and another officer's text messages on their departmental pagers.  The city determined that Quon was using the city-owned pager for personal use when it conducted a routine audit to determine if it should increase the number of characters allowable in a message.  Quon argued that he had an expectation of privacy even though it was a city-owned device.

In a unanimous decision by Justice Kennedy, the Court held that the search of Quon's messages was reasonable.  The Fourth Amendment protects against arbitrary and invasive government acts, even when the government acts as an employer, and the Court made clear that it was not attempting to lay down guidelines for what constituted a reasonable expectation of privacy.  But in this particular case the employer had acted reasonably, and had legitimate grounds to do the search.  If in doing so it found abuse of the government-owned device, then it was free to discipline Quon accordingly.

Abbott v. Abbott: The Court ruled that an order prohibiting the removal of a child from a country without the non-custodial parent's consent is enforceable under an international child abduction treaty. The case involved an American mother and a British father of a 15-year-old boy, and a court order from Chile conferring a right of custody on the British father. Justice Kennedy wrote for the 6-3 majority that the Chilean order fell within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction.

Timothy and Jacqueline Abbott were living in Chile when the separated in 2003. The Chilean courts granted the mother daily care and control of the boy, and awarded the father regular visitation rights. Chilean law also conferred on the father a ne exeat right to consent before his son could be taken out of the country. Unable to find work in Chile, the mother returned to the United States.  The father found them in Texas and went to court to enforce the ne exeat order.

The case was similar to others that had come before federal courts, and the Supreme Court took it because there was disagreement among the circuits on whether U.S. courts were bound by ne exeat. orders from foreign courts. In deciding, the Court followed the interpretation of the international convention supported by the State Department.

Samantar v. Yousef: the Supreme Court refused to block a lawsuit against a former prime minister of Somalia, Mohamed Ali Samantar, over claims that he oversaw killings and torture in his home country. Samantar claimed that he was immune from the suit under the Foreign Sovereign Immunities Act.

The unanimous decision by Justice Stevens could have foreign policy implications.  Allowing lawsuits against former foreign officials living in the United States could increase the likelihood that U.S. officials would be sued in foreign courts.  An increase in the number of U.S. lawsuits over past actions might also adversely affect current ties with those countries. Samantar was defense and prime minister of Somalia in the 1980s and early 1990s under the dictator Siad Barre, and now lives in Virginia.  He is being sued under the Torture Victim Protection Act by Somalis living in the United States who were subjected to persecution in the 1980s. A federal judge had thrown out the case under the Immunities Act, but the Court of Appeals for the Fourth Circuit had reversed, and the high court agreed.

Stevens pointed out that the decision did not mean that the suit against Samantar automatically goes forward; he may have other defenses that the district court will have to evaluate.

New Process Steel v. National Labor Relations Board: The National Labor Relations Board (NLRB) is supposed to have five members of which no more than three are from one party.  Over the past several years conflict between the president and Congress has resulted in openings on the NLRB, when commissioner terms expire, have gone unfilled. Since 2007 the Board has determined some 600 cases, often with only two commissioners voting.

By a rather strange 5-4 vote (Stevens, joined by Roberts, Scalia, Thomas, and Alito, against Kennedy, joined by Ginsburg, Breyer, and Sotomayor), the Court held that the NLRB did not have authority to decide these cases with only two members voting. The case was a matter of statutory construction, since the law states that the Board is "authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise," and defines a quorum of the Board as three members. The question was whether if there were only three members of the NLRB, would two constitute a quorum, and the majority said no.

It is not clear how many of the cases will have to be reheard, but there are currently some 75-80 suits in the lower federal courts challenging rulings by a two-member panel, and given this ruling all of them will have to be reheard.

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