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Supreme Court takes al-Marri detention case, employment discrimination appeal

[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari [order list, PDF] Friday in two cases. In al-Marri v. Pucciarelli [docket; cert. petition, PDF], the Court will decide whether the Authorization for Use of Military Force [text, PDF], passed after the 9/11 attacks [JURIST news archive], authorizes the indefinite military detention of of a person lawfully residing in the US, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities. The case involves Qatari national Ali Saleh Kahlah al-Marri [NYT profile; JURIST news archive] who has been held since 2003 solely on the basis of a presidential declaration that he is an "enemy combatant." The US Court of Appeals for the Fourth Circuit [official website] in July upheld [opinion, PDF; JURIST report] the president's authority to order al-Marri's detention. The incoming administration of President-elect Barack Obama [transition website] will have the power to change the Bush administration's policy, potentially ending the case before a ruling by the Court by releasing or charging al-Marri.

In Gross v. FBL Financial Services [docket; cert. petition, PDF], the Court will decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII [text] discrimination case. The case involves an executive who claims he was passed over for a promotion in favor of a younger employee in violation of the Age Discrimination in Employment Act (ADEA) [text]. In 2003, the Court ruled in Desert Palace v. Costa [opinion text] that direct evidence - evidence linking an adverse employment action to a specific motive - is not required in a mixed-motive case under Title VII, but left open the issue of whether direct evidence would be required outside the Title VII context. The US Court of Appeals for the Eighth Circuit [official website] ruled [opinion, PDF] in May that direct evidence is required under the ADEA.

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