Publications

Greetings, Court Fans!

 

The Court has returned from its winter recess with a brief flurry of activity in the last few days: one opinion in an argued case, two unsigned rulings in other cases, and a slew of cert grants in an effort to fill out the Term.

 

Today, the Court issued a 7-2 opinion in John R. Sand & Gravel Co. v. United States (06-1164), where it held that the six-year statute of limitations on actions in the Court of Federal Claims is absolute – i.e., a court must consider the timeliness of an action even if the government has not raised the issue. The gravel company had challenged various EPA actions as unconstitutional takings of its property interests. It lost on the merits in the court of claims; to add insult to injury, on appeal the Federal Circuit held that it was obliged to consider the statute of limitations (even though the government had not raised it in the appeal), and it found the case untimely. The Court agreed, in an opinion by Justice Breyer. Usually, the law treats statutes of limitations as affirmative defenses that are waivable or which courts can “toll” in light of special equitable considerations. Ever since its decisions in Kendall v. United States (1883) and Finn v. United States (1887), however, the Court has interpreted the court-of-claims limitations period as more absolute or “jurisdictional,” as it serves not only to protect the defendant’s (i.e., the United States’) interest in timeliness but also to limit the scope of the government’s waiver of sovereign immunity. In 1990, the Court held in Irwin v. Department of Veterans Affairs appeared to depart from that reasoning by holding that equitable tolling applied to suits against the United States, but that case concerned a different statute and said nothing about overturning the Court’s prior holdings regarding the court-of-claims limitations period. For the majority, any discrepancy between Irwin and those decisions was not critical and did not render the law unworkable.

 

Justices Stevens and Ginsburg dissented. For Stevens, Irwin clearly rejected the Court’s prior reading of the court-of-claims limitations period, as the Irwin majority expressly declined to follow the court-of-claims cases. Instead, the Court adopted the principal of treating the government like any other litigant, rendering the sovereign immunity rationale behind Kendall and its progeny a “doctrinal anachronism.” Ginsburg wrote separately to argue that even if Irwin had not overruled the court-of-claims cases (which she thought it had), now would be a good time to do so.

 

Ginsburg’s dissent noted one aspect of today’s ruling that may be more significant than the substance of the decision itself: the way in which some controversial rulings from last Term may affect the Court’s approach to stare decisis. In an interesting conclusion to the majority opinion, Breyer wrote that even if the old court-of-claims cases had been wrongly decided, revisiting them could be harmful: “[I]t is more important that the applicable rule of law be settled than that it be settled right.” Overturning one decision inevitably would lead to the reconsideration of others, leading to disruption in the law. It’s hard to believe Justice Thomas even signed on to this part of the opinion, given his willingness to scuttle settled-if-incorrect precedent. Also, Breyer clearly was voicing his continued displeasure with decisions from last Term that expressly or implicitly abandoned settled precedent (see our June 29, 2007 Update on the Court’s decisions in Leegin v. PSKS and PICS v. Seattle School District No. 1) – even though, curiously, his majority today included all of the Justices who supported those decisions. Ginsburg made the same point in her own way in dissent. As she put it, the Court recently has not hesitated to abandon precedent it thinks is wrong, so adhering to Kendall without any justification is perplexing: “After today’s decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions interpreting legislative texts.” Expect to see more on this issue as the Term progresses.

 

On Monday, the Court issued two per curiam rulings disposing of cases without briefing or argument. In Wright v. Van Patten (07-212), the Court rejected a federal habeas petition challenging a criminal defense attorney’s participation in a plea hearing by telephone as ineffective assistance of counsel. The case involved two Court precedents from 1984: Strickland v. Washington, under which most ineffective-assistance claims require a showing of deficient performance and prejudice to the defendant, and United States v. Cronic, under which prejudice can be presumed in certain egregious circumstances such as the “total absence of counsel.” The Wisconsin state courts applied Strickland and rejected Van Patten’s ineffective-assistance claim. On federal habeas review, the district court agreed, but the Seventh Circuit held that his case fell under Cronic and that his lawyer was presumptively ineffective. The Court reversed. Unfortunately for Van Patten, the issue on federal habeas review was not “the merits of telephone practice” but whether the Wisconsin courts had unreasonably applied federal law in choosing to follow Strickland rather than Cronic. That question turned on whether the circumstances were likely to result in such poor performance than an inquiry into prejudice would not be worth the time. Because the Court’s prior rulings gave no clear answer to that question, Wisconsin’s choice of Strickland over Cronic was not unreasonable. On direct review, the federal courts might answer the question differently, but the Court’s consideration of telephone practice was “for another day.” Justice Stevens concurred in the judgment, agreeing that Wisconsin’s approach was not unreasonable in light of the way Cronic was written, but also pretty clearly signaling that, given the chance, he would find telephone participation in a plea hearing presumptively ineffective.

 

In a second per curiam ruling from Monday, Arave v. Hoffman (07-110), the Court vacated a Ninth Circuit ruling that Hoffman had received ineffective assistance of counsel during plea bargaining. Hoffman’s habeas petition alleged ineffective assistance during plea bargaining and in the sentencing phase of his Idaho criminal trial; he won in the district court on the sentencing claim and actually obtained an order that he be resentenced. The Ninth Circuit affirmed that order but also held for Hoffman on his plea bargaining claim and ordered that Hoffman either be released or offered a materially identical plea deal to the one he rejected with poor counsel. Idaho sought and obtained Court review, but Hoffman curiously abandoned his plea bargaining claim, actually asking the Court to dismiss that part of his case so that he could proceed with the resentencing as ordered by the district court. Idaho consented to the motion, and the Court was happy to oblige both parties.

 

The Court also issued orders on Friday and Monday. On Friday, it granted cert in six cases, the biggest of which was Kennedy v. Louisiana (07-343), in which it will consider the constitutionality of a death sentence for child rape. The questions presented are: (1) Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty. (2) If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.

 

The other cert grants are as follows:

 

Bridge v. Phoenix Bond & Indemnity Co. (07-210): Whether reliance is a required element of a RICO claim predicated on mail fraud and, if it is, whether that reliance must be by the plaintiff.

 

Greenlaw v. United States (07-330): Whether a federal court of appeals may increase a criminal defendant’s sentence sua sponte and in the absence of a cross-appeal by the Government.

 

Plains Commerce Bank v. Long Family Land & Cattle Co. (07-411): Whether Indian tribal courts have subject-matter jurisdiction to adjudicate civil tort claims as an “other means” of regulating the conduct of a nonmember bank owning fee-land on a reservation that entered into a private commercial agreement with a member-owned corporation?

 

Sprint Communications Co. v. APCC Services, Inc. (07-552): Whether the assignment of a claim “for purposes of collection” confers standing on assignees which have no personal stake in the case and which avowedly litigate only “on behalf of” the assignors. (For those of you wondering why this is a federal case, it involves federal regulations that require telephone companies to make certain payments to payphone owners, who assigned their claims to the respondents.)

 

Irizarry v. United States (06-7517): Whether Federal Rule of Criminal Procedure 32(h), and the holding in Burns v. United States requiring a court to provide reasonable notice to the parties that it is contemplating a departure from the applicable sentencing guideline range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, has any continuing application in light of United States v. Booker.

 

Finally, Monday’s order list invited the SG to brief the cert petition in Clark County, Nevada v. Vacation Village, Inc. (07-373), indicating that the case has piqued at least some Justices’ interest. The rather wordy question presented is: Whether a State’s recognition and constitutional protection of an unqualified compensable ownership interest in 500 feet of navigable airspace above a landowner’s property is preempted by federal laws that confer on the federal government “exclusive sovereignty” over the navigable airspace of the United States and grant the public the right to traverse navigable airspace less than 500 feet above ground level to ensure safe takeoffs and landings of aircraft.

 

That’s all for now. Until next time, thanks for reading!

 

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim, Ken or any other member of the Practice Group at 203-498-4400