Publications

Greetings, Court Fans!

 

Barring another unexpected quick per curiam ruling, this will be another quiet week for the Court on the opinions front. There are a number of interesting arguments this week, however, plus some cert grants and a doozy of a summary disposition, so read on for the details.

 

The Court came back today from a two-week recess. Among the arguments it will hear this week, two are particularly juicy, especially if you are a First Amendment or criminal practitioner or just a judicial federalism junkie. In United States v. Williams, the Court will consider whether the federal PROTECT Act, which bans the distribution of material intended to look to recipients like child pornography, is unconstitutional. And in Danforth v. Minnesota, the Court will consider whether, when the Court has already held that one of its criminal procedure rulings does not apply retroactively but only to future cases, a state court can go further and apply the Court’s ruling retroactively to its own criminal proceedings.

 

The Court also released an order list today in which it granted cert in two new cases that will be heard sometime next year. They are:

 

Allison Engine Co. v. United States (07-214), in which the basic question presented does not quite convey what the case is about: “[W]hether a plaintiff asserting a cause of action under Section 3729(a)(2) or Section 3729(a)(3) of the False Claims Act is required to prove that a false claim was submitted to the federal government, or whether it is sufficient to establish that the claim was paid using federal funds.” Here’s another way to put it – when a false claim is submitted not to the federal government but to a contractor that will be paid with federal funds, does the False Claims Act still apply? – a potentially very significant question about the scope of the Act (especially for any qui tam practitioners out there).

 

Exxon Shipping Co. v. Baker (07-219): This case concerns a $2.5 billion punitive damages award to commercial fishermen and other private parties resulting from the 1989 Exxon Valdez disaster in Alaska. The jury actually awarded $5 billion, which the Ninth Circuit cut in half after it concluded that the jury’s award ran afoul of the Due Process Clause. The new award was still 123 times the amount of compensatory damages awarded, so Exxon challenged the new award as violating federal maritime law and due process, based on the Court’s past decisions in BMW of North America v. Gore and State Farm v. Campbell. The questions presented (which follow) are lengthy, but the upshot is that the Court will hear the maritime law issues but not the due process ones – indicating that the attempts of some Justices (i.e., Scalia and Thomas) to walk the Court back from Gore and State Farm may be bearing fruit. The questions the Court took are: “(1) May punitive damages be imposed under maritime law against a shipowner (as the Ninth Circuit held, contrary to decisions of the First, Fifth, Sixth, and Seventh Circuits) for the conduct of a ship’s master at sea, absent a finding that the owner directed, countenanced, or participated in that conduct, and even when the conduct was contrary to policies established and enforced by the owner? (2) When Congress has specified the criminal and civil penalties for maritime conduct in a controlling statute, here the Clean Water Act, but has not provided for punitive damages, may judge-made federal maritime law (as the Ninth Circuit held, contrary to decisions of the First, Second, Fifth, and Sixth Circuits) expand the penalties Congress provided by adding a punitive damages remedy? (3) Is this $2.5 billion punitive damages award, which is larger than the total of all punitive damages awards affirmed by all federal appellate courts in our history, within the limits allowed by . . . federal maritime law.”

 

Finally, there is one very unusual summary disposition to report – usually, we leave most of these out, but this one demands mention. In Sibley v. Breyer, Justice, United States Supreme Court et al., a two-Justice “Court” comprised of the Chief and Justice Alito determined that the Court could not hear a case against the seven other Justices (plus some Eleventh Circuit judges), and thus, pursuant to federal statutes that apply when the Court lacks a quorum, the Court affirmed a D.C. Circuit ruling throwing out the case as though the Court were spit 4-4 (which just happened a few weeks ago in the Tom F. case, in which Justice Kennedy was recused). Sibley, a Florida attorney, lost custody of his children and was ordered to pay child support in what must have been one heck of a divorce proceeding – according to some of the court papers filed in past proceedings, Sibley filed at least fourteen civil actions pro se in Florida courts trying to reverse the custody ruling, as well as twenty-one separate Florida appeals. When those all failed, he tried to undo the ruling in federal court, meeting with failure every step of the way (including denials of cert by the Rehnquist Court). Apparently enjoying the abuse (and presumably doing enough other work to pay child support), he sued the Court and all nine then-Justices, claiming that they had violated his rights by: (1) adopting the Rooker-Feldman doctrine barring federal jurisdiction when a losing party in state court effectively seeks federal appellate review; (2) adopting the Younger federal abstention doctrine where important state interests are involved; (3) leaving certiorari review a matter of the Court’s discretion rather than a matter of right (the Justices must have loved that one – imagine a docket of 4000 cases annually); and (4) ignoring stare decisis in declining to review his case. Among other things, he demanded $1 million in damages from each Justice. He also sued the Eleventh Circuit for following Rooker-Feldman and Younger and for issuing unpublished opinions in his case. He lost in Florida district court (no surprise there), and the Eleventh Circuit (again no surprise), and the Court denied cert – with no indication that any Justices recused themselves from the case. So Sibley turned around and sued the Justices again (minus the Chief and Alito, who were not on the Court at the time), this time in D.C. federal court and this time alleging that they had violated his right to an impartial tribunal and committed treason by failing to recuse themselves. The district court and the D.C. Circuit both held that the Justices were entitled to absolute judicial immunity. This time, the Justice-defendants – Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer – recused themselves, leaving only the Chief and Alito to rule on Sibley’s cert petition. Given the recusals, the Court lacked a quorum, and the Chief and Alito determined that the Court (obviously) could not hear the case this Term or next, so under 28 U.S.C. § 2109 the D.C. Circuit ruling stands as though it were affirmed by an equally divided court. All in all, a pretty clean way to dispose of the case – though the Chief and Alito probably should prepare for the next lawsuit.

 

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 Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400