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Pentagon extends certain benefits to same-sex couples

As the U.S. Supreme Court readies to decide the fate of the federal Defense of Marriage Act, the Defense Department extended certain benefits to the spouses and unmarried partners of gay service members Monday.

The benefits, until now only available to opposite-sex married couples, include the ability to visit in hospitals, child care services, and military ID cards that gives partners of service members access to on-base amenities.

The move does not grant same-sex couples all the benefits available to heterosexual married couples because DOMA is still in effect, said Defense Secretary Leon E. Panetta. But Panetta said he hopes the Supreme Court will overturn the law when it decides U.S. v. Windsor later this year. Oral arguments are scheduled for next month.

“One of the legal limitations to providing all benefits at this time is the Defense of Marriage Act, which is still the law of the land,” Panetta said in a statement. “There are certain benefits that can only be provided to spouses as defined by that law, which is now being reviewed by the United States Supreme Court. While it will not change during my tenure as secretary of defense, I foresee a time when the law will allow the department to grant full benefits to service members and their dependents, irrespective of sexual orientation.”

Supreme Court could take up smoky First Amendment issue

Could the battle over a federal rule requiring prominent warnings on cigarette boxes and other tobacco product packaging be headed for the U.S. Supreme Court?

Last year, the Food and Drug Administration unveiled a series of graphic labels – featuring images such as a man exhaling cigarette smoke through a tracheotomy hole, cancerous mouth sores and a post-autopsy cadaver – that tobacco companies would be required to place prominently on its products under the Family Smoking Prevention and Tobacco Control Act.

But the companies sued in federal court, claiming the labeling requirement violated their First Amendment rights. Friday, the D.C. Circuit created an appellate split by ruling in the tobacco companies’ favor – a decision at odds with a 6th Circuit ruling in March holding that there was no violation. The split makes the issue ripe for Supreme Court consideration.

More on the regulations and appellate decisions from Lawyers USA.

NLRB OKs “ratty” protest (access required)

The rat has long been a symbolic figure in union-management battles. But the National Labor Relations Board has cleared the way for union rats to become much bigger players in labor disputes, reports our sister publication The Daily Record.

The Board ruled that a union had the right to use a 16-foot inflatable rat – a common protest prop used by union members – outside the premises of a company’s supplier or other third party business. While threatening or coercive conduct by union members against third parties is barred, a big inflatable rodent was unlikely to make anyone feel frightened or bullied, the Board reasoned.

The “rat balloon itself was symbolic speech,” Chairman Wilma B. Liebman and members Craig Becker and Mark Pearce said of the inflatable creature set up outside a hospital construction project. “It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital.”

Court grants Ashcroft review, denies bids by prisoners and reporters (access required)

The U.S. Supreme Court added just one case to its docket yesterday: Ashcroft v. al-Kidd, an appeal by former Attorney General John Ashcroft, will determine whether Ashcroft is immune from a civil suit by a U.S. citizen who claims he was illegally detained as a terrorist.

As is often the case when the Court grants only one cert. petition, more headlines were made over what the Court did not do yesterday.

For example, the Court declined to take up Pitre v. Cain, the appeal of a prisoner who claimed he was punished with hard labor in 100-degree heat for refusing to take his HIV medication. A district court rejected the prisoner’s Eighth Amendment claim, reasoning that he had brought the matter on himself for not taking the drugs.

But Justice Sonia Sotomayor, in a written dissent, opposed the denial of cert., explaining why she believes the 5th Circuit’s ruling affirming the dismissal of the prisoner’s complaint was wrong.

“The Fifth Circuit’s error in requiring Pitre to produce ‘evidence’ in support of his allegations before a responsive pleading was filed, in and of itself, is sufficient reason to reverse the judgment below,” Sotomayor wrote, citing Bell Atlantic Corp. v. Twombly.

“More fundamentally, however, in focusing on Pitre’s own contribution to his health problems, the courts appear to have misunderstood the nature of Pitre’s Eighth Amendment claim,” Sotomayor wrote. “His pro se complaint and attachments…allege not that respondents denied him medical care but that they punished him for refusing to take medication, or attempted to coerce him to take medication, by subjecting him to hard labor that they knew exceeded his medical limitations.”

She said the prisoner’s complaint was “more than sufficient to state a claim of deliberate indifference” under the Eighth Amendment’s cruel and unusual punishment prohibition.

The Court also, without comment, took a pass on Simmons v. Galvin, a challenge brought by a Massachusetts prisoner claiming the commonwealth’s law prohibiting prisoners from voting violated the Voting Rights Act because a disproportionate number of inmates are black or Hispanic.

The Court also declined to take up a request by the Reporters Committee for Freedom of the Press to unseal filings in the case In Re Grand Jury Proceedings. That case involves an investigation of a doctor accused of unlawfully prescribing pain medication.

A petition by a Texas death row inmate was also rejected by the Court yesterday. The inmate’s attorney argued in Hall v. Thaler that the man should not be executed because he is mentally impaired.

Monday status conference: Conservative estimate

“If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment’s right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.”

That prediction came in a New York Times analysis by Adam Liptak of Chief Justice John G. Roberts, Jr.’s Supreme Court, which, Liptak writes, has become “the most conservative one in living memory.”

And that is something that will not change for quite some time, given the Court’s makeup. The impact on the Court of President Barack Obama’s two picks so far, Justice Sonia Sotomayor and likely-to-be-confirmed nominee Elena Kagan, is slight, given the fact that they were named to replace justices with similar ideological leanings.

In fact, the article states, the big shift occurred five years ago with one key appointment by President George W. Bush: Justice Samuel Alito, Jr. taking the seat of retired Justice Sandra Day O’Connor.

In other Beltway-related legal news to kick off your week:

Rangel’s failed settlement: The announcement that New York Rep. Charlie Rangel would face a congressional trial over charges of ethics violations came after settlement negotiations between Rangel and the House ethics committee broke down. (New York Times)

Friend in dissent: Right up until the end of his tenure, Justice John Paul Stevens did what he had for decades – sparred with Justice Antonin Scalia in written opinions. (Washington Post)

Right of first recusal: Kagan will have to sit out a dozen or more cases news term, due to her involvement in the cases as solicitor general. But will she have to recuse herself when the healthcare law lands before the Court? (NYT)

Nursing guidance: The U.S. Department of Labor has issued a fact sheet outlining employers’ obligation to give adequate break time to nursing mothers under the health care reform law that went into effect earlier this year. (Lawyers USA)

Members of FDA Avandia panel paid by drugmaker, rival

A member of the FDA advisory panel who cast a vote in favor of keeping the diabetes drug Avandia on the market with no restrictions was paid more than $15,000 by the maker of the drug as an adviser. Meanwhile, another panelist who voted to pull the drug from the market has worked as a consultant for the company that makes a rival diabetes drug.

David Capuzzi was paid $14,750 by GlaxoSmithKline to promote the company’s heart drug Lovaza, according to a report by the Wall Street Journal. He was also paid $750 by the company to serve as a consultant on an advisory board on Avandia, the Journal reports. Capuzzi said that he disclosed his relationship with the company to the FDA.

Capuzzi was part of a 33-member advisory panel which ultimately voted last week in favor of urging the FDA to impose stronger warnings on Avandia labeling and possible restrictions to its sale based on medical reports linking the drug to increased risk of heart attack and other health problems.

A significant number of panelists voted in favor of removing the controversial diabetes drug Avandia from the market altogether. According to another Journal report, one panelist voting in favor if recalling the drug – Abraham Thomas – disclosed yesterday that he has served as a paid speaker for the maker of a rival diabetes drug Actos. Thomas said he also disclose the payments to the FDA.

The FDA issued a statement saying they would examine any relationship between panel members and drug companies internally. “If any member of the advisory committee is found to have a conflict of interest, FDA can consider that information as we make our final decision on the status of the drug,” the statement said.

Patent office extinguishes reefer category

If you created a new blend of a certain medicinal herb, and you wanted to trademark a name like “Jack and Jackie’s Wacky Tobacky” or “McDuff’s Puff Stuff,” you may have thought you were in luck.

After all, in April the U.S. Patent and Trademark Office quietly created a brand new trademark category: “Processed plant matter for medicinal purposes, namely medical marijuana.” In other words, marijuana growers could get government protection for their herbal product!

That is, until last week. After a Wall Street Journal reporter began asking the patent office about the new trademark category, federal officials said the new designation was about to go up in smoke – per the advice of the office’s lawyers.

“It raises examination issues,” PTO spokesman Peter Pappas told the Journal. “It was a mistake and we have removed it.”

Removing the federal approval of pot products was probably a wise move, considering that selling marijuana – even for medicinal purposes – remains a federal crime, even though some states allow it. Although Attorney General Eric Holder signaled a change in federal policy back in March by announcing the Justice Department will no longer go after producers of medical marijuana, there has been no law change yet.

Pot producers can still file applications for trademarks without the special chronic category. But, patent officials said a pot trademark has never been granted, and the chances of one being granted in the future are bleak. So don’t hold your breath. Well, at least not over this.

Justice Department to file suit over AZ immigration law today

CNN is reporting that Obama administration sources have confirmed that the Justice Department will fill a lawsuit today over Arizona’s controversial immigration law.

The suit will allege that the law is preempted by federal immigration law.

The Washington Post reports that some legal experts believe that the argument of preemption – a doctrine that has been well-established and upheld by the Supreme Court – should very well persuade the federal district court judge that the state law, which allows police to question anyone if they have a “reasonable suspicion” that the person is an illegal immigrant, is a violation of the Constitution’s supremacy clause. The law is scheduled to go into effect later this month.

Secretary of State Hillary Rodham Clinton first indicated last month that a lawsuit would be forthcoming, prompting Gov. Jan Brewer, who signed the measure into law in April, to chide federal officials for telling the news media about its plans to sue before telling Arizona state officials.

NLRB chair reacts to Supreme Court decision

National Labor Relations Board Chairman Wilma B. Liebman has issued a statement in response to today’s Supreme Court ruling in New Process Steel v. NLRB that the Board lacked authority to act with only two members, as it did for more than two years.

“When the Board went to two members in January 2008, Member [Peter C.] Schaumber and I made a difficult decision in difficult circumstances,” said Chairman Liebman. “In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated.  We believed that our position was legally correct and that it served the public interest in preventing a Board shut-down. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

Monday status conference: A fight during recess

Last week, during oral arguments at the Supreme Court, Deputy Solicitor General Neal K. Katyal urged the justices to find that the National Labor Relations Board had authority to act and issue opinions with only two members – as it had for more than two years.

The fact that the Senate had held up the confirmation of President Obama’s three nominees to the board – and had in fact blocked one of the candidates, union attorney Craig Becker, with a failed cloture vote – “underscores the general contentious nature of the appointment process with respect to this set of issues,” Katyal told the justices.

“And the recess appointment power doesn’t work why?” asked Chief Justice John G. Roberts, Jr.

Over the weekend Obama showed that the power does indeed work. With the Senate in recess for more than three days, Obama made 15 recess appointments to administration posts – including Becker to the NLRB.

Late last week Republican senators as well as the U.S. Chamber of Commerce urged Obama not the use the recess appointment power for Becker. They argued that Becker represented a campaign promise made by Obama to unions during the election, and that Becker would essentially push to authorize “card check” unionizations in worplaces after legislation that would have done so lost steam in Congress. Much more on the Becker brouhaha here from Lawyers USA.

Meanwhile oral arguments continue today at the Supreme Court. The justices will hear arguments in cases involving double jeopardy and securities law.

In other news:

Predicting Stevens’ replacement: Since no one else is waiting for Justice John Paul Stevens to actually retire before opining about who might replace him, we won’t either. (Lawyers USA)

Gun law ok’d: A a federal court has upheld the gun regulations enacted in the District of Columbia after the Supreme Court’s ruling in D.C. v. Heller. (The BLT Blog)

Money talk: What’s the impact of the latest federal court ruling rejecting a constitutional challenge by the Republican Party to some federal limits on donations to political parties? SCOTUSblog explains. (SCOTUSblog)