Publications
Lawrence v. Florida (05-8820), Fidelity Federal Bank & Trust v. Kehoe (05-919) and Arizona v. California (8 Orig.)
Greetings, Court fans!
The Court heard arguments this week in one of the biggest cases of the Term, Hamdan v. Rumsfeld, in which a Guantanamo detainee (specifically, Osama bin Laden’s driver and bodyguard) is challenging the constitutionality of the military commissions set up to try enemy combatants accused of war crimes. Perhaps because of the magnitude of that case, the rest of the Court’s activity this week has been decidedly low-key: no opinions, just one cert grant and some odds and ends.
The cert grant on Monday’s order list was in Lawrence v. Florida (05-8820), which raises several questions regarding everybody’s favorite issue, the one-year statute of limitations for federal habeas petitions under the Anti-Terrorism and Effective Death Penalty Act (you may think we’re kidding, but AEDPA is, by far, the source of more recent cases before the Court than any other federal statute). The questions presented are: (1) Where a defendant facing death has pending a United States Supreme Court certiorari petition to review the validity of the state’s denial of his claims for state post-conviction relief, does the defendant have an application pending which tolls the 2244(d)(2) statute of limitations? (2) Alternatively, does the confusion around the statute of limitations – as evidenced by the split in the circuits – constitute an “extraordinary circumstance,” entitling the diligent defendant to equitable tolling during the time when his claim is being considered by the United States Supreme Court on certiorari? (3) And in the second alternative, do the special circumstance where counsel advising the defendant as to the statute of limitations was registry counsel – a species of state actor – under the monitoring supervision of Florida Courts, with a statutory duty to file appropriate motions in a timely manner, constitute an “extraordinary circumstance” beyond the defendant’s control such that the doctrine of equitable tolling should operate to save his petition?
The odd (part of the odds and ends) came as a concurrence in the denial of cert in Fidelity Federal Bank & Trust v. Kehoe (05-919). That case concerned the federal Driver’s Privacy Protection Act, which prohibits the disclosure of a driver’s personal information without her express consent. Florida was slow to conform to DPPA, and as a result Fidelity managed to buy, without individual consent and for a penny apiece, the addresses of over 565,600 drivers from the Florida DMV (Florida readers, now you know the source of that refinancing junk mail). Kehoe brought a class action under DPPA, threatening Fidelity with $1.4 billion in civil penalties. Fidelity moved for summary judgment on the ground that (1) DPPA had an “intent” requirement, meaning that Fidelity could not be liable if it did not know that Florida had failed to comply with DPPA, and (2) Kehoe had to show “actual damages” to recover under the statute. The district court held for Fidelity on the actual damages issue without addressing the intent question. The Eleventh Circuit reversed, sending the case back to the trial court, but Fidelity petitioned for cert. The Court denied cert without comment on the order list, but Justice Scalia (joined by Alito) filed a concurrence in the denial of cert – a rare event. Scalia noted that the magnitude of Fidelity’s potential liability made the actual damages question an important one and was a strong factor weighing in favor of granting cert. Nevertheless, he concurred in the denial of cert because, on remand, the trial court might well dispose of the case on the intent ground (query whether this should be read as an invitation for the trial court to do so). Depending on how the case plays out, the Court ultimately might grant cert on both questions, but for now cert would be premature.
The end came in Arizona v. California (8 Orig.), a longstanding dispute among those states, Utah, Nevada, New Mexico, the United States government, and various Native American tribes over the use of numerous western bodies of water. (How longstanding? Well, it’s docket number eight in the original jurisdiction cases.) The Court’s final decree blessed a settlement worked out by all the parties with a special master, who was finally discharged with the Court’s thanks.
That’s it – likely for the week. Thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
