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Greetings, Court fans!

The Court released six opinions yesterday, making this a whopper of an Update. We’re still waiting for the really “hot” cases to be released, including the Ten Commandments cases, Grokster (the file-sharing case), and Kelo (the Connecticut Takings case), but yesterday’s decisions will have some real impact (especially for prisoners, truckers, and whistleblowers), so read on!

The 5-4 ruling in Dodd v. United States (04-5286) will dramatically affect the ability of prisoners to bring habeas claims based on newly announced rules of law. Under 28 U.S.C. 2255, a federal prisoner challenging his sentence under a new rule of law can do so within a year from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Dodd sought to take advantage of the Court’s 2001 holding in Richardson v. United States that a jury must agree unanimously on the acts that constitute a continuing criminal enterprise under 28 U.S.C. 841. Dodd filed his section 2255 petition more than a year after Richardson was announced, but within a year of the date that the Eleventh Circuit held that Richardson should be applied retroactively. The question for the Court was whether the 1-year limitation period ran from the date on which the Court “initially recognized the right” (i.e. when Richardson was decided) or when that right was found to be retroactive (a year later). Led by Justice O’Connor, the majority concluded that the statute was “clear” and ran from the date that the rule was initially announced — barring Dodd’s claim. The Court recognized the potential for “harsh results,” but felt it was not “free to rewrite the statute.”

Justice Stevens, joined by Souter, Ginsburg and Breyer, dissented, arguing that “careless wording” and “incorrect assumptions” should not overcome Congress’s clear intent, particularly where the statute is ambiguous. Congress likely believed that whenever the Supreme Court announced a new rule, it would also discuss its retroactivity, but in fact a decision on retroactivity almost never comes down within a year of a new rule’s announcement. The majority’s ruling will leave the vast majority of prisoners without relief, since they cannot file until a new rule is made retroactive. Congress would not specifically provide for appeals based on new rules of law only to have the provision rendered a nullity. This result is so absurd that Stevens would reject the majority’s interpretation even if it were the only reasonable construction of the statute. In a part of the opinion joined by no others, Stevens notes that this case presents similar issues as Graham County (discussed below), where the Court gets it right. Ginsburg and Breyer dissented separately to say that this case is not like Graham County because Dodd’s case involves the true nullification of a statutory provision that will affect a multitude of prisoners, whereas the Court’s ruling in Graham County, no matter how one views the merits, will not wreak such havoc.

With that, let’s move on to Graham County Soil & Water Conservation District v. United States ex rel. Wilson (04-169), where the Court held 7-2 that the statute of limitations for whistleblower retaliation claims under the False Claims Act is not the FCA’s six-year limitations period, but rather the most closely analogous state limitations period. The FCA prohibits fraudulent claims for payment to the United States, and allows private individuals to bring qui tam actions to recover in the government’s name under 31 U.S.C. 3730(b)(1). In 1986, Congress added a new cause of action under section 3730(h) for individuals facing retaliation from employers for assisting an FCA investigation. The FCA further provides that “a civil action under section 3730” cannot be brought “more than 6 years after the date on which the [false claim] is committed.” In 2001, Wilson brought a qui tam complaint against her employer, alleging that it made false claims under a federal disaster relief program and that it had harassed her for cooperating with a federal investigation in 1996-97. Her employer moved to dismiss the retaliation claim, arguing that the 6-year limitations period did not apply and asking the district court to adopt North Carolina’s 3-year limit for retaliatory discharges. The district court agreed, the Fourth Circuit reversed, and the Supreme Court reversed right back.

For the Court, it was unclear whether section 3730(h) retaliation claims were “civil actions under section 3730” because the statute ties the limitations period to the date of the false claim, when a retaliation plaintiff does not even have to allege that her employer submitted a false claim, only that it retaliated against her for cooperating in an investigation. Given the choice of starting the clock at the date of the “suspected” false claim, or simply reading retaliation suits out of the statute of limitations, the Court chose the latter approach for two reasons: (1) other sections of the statute use “action brought under section 3730” to refer only to actual false claims actions, not retaliation actions, and (2) Congress generally drafts statutes of limitations to begin when the cause of action accrues (i.e., when retaliation occurs, as opposed to a false claim that could have occurred many years earlier; in a nightmare scenario (our words, not the Court’s), if the retaliation occurred more than six years after the false claim, the retaliation claim would be untimely the moment it accrued!). On remand, the Fourth Circuit should rule on which state statute of limitations is most closely analogous.

Justice Stevens concurred in the judgment with a single sentence, essentially: “See my Dodd dissent.” Justice Breyer (joined by Ginsburg) dissented, on textual grounds and on the ground that while starting the limitations period before retaliation occurs is admittedly odd, Congress could reasonably desire to have a uniform limitations period for all qui tam-related claims, as opposed to a “crazy quilt” based on state limitations periods for retaliation claims (some of which are as short as 90 days). Moreover, neither the majority nor the parties could identify a single retaliation plaintiff who would be time-barred under the majority’s nightmare scenario, and Breyer would not “shed crocodile tears for the imagined plight of a nonexistent whistle-blower.”

In another 5-4 split (with the Dodd dissenters plus O’Connor forming the majority), the Court reversed a death sentence on the basis of ineffective assistance of counsel in Rompilla v. Beard (04-5462). The Court (Souter, J.) found that Rompilla’s counsel provided ineffective assistance in the penalty phase, despite the fact that counsel interviewed Rompilla and his family members extensively and arranged for him to be examined by three mental health experts, because counsel failed to review the court file on a prior conviction the State intended to use as an aggravating circumstance. The State twice told counsel that it intended to introduce not just the fact of the conviction, but also gruesome testimony from the trial, yet counsel reviewed just part of the file only a day before the penalty hearing. Moreover, counsel relied heavily on a residual doubt theory, which was severely undercut by the existence of the prior conviction. The error was prejudicial because, had counsel reviewed the file, they would have found evidence of significant mitigating factors including severe childhood abuse, alcoholism, indications of schizophrenia, and low IQ. Instead, counsel merely presented the testimony of family members and asked for mercy.

Justice O’Connor concurred to say that the Court was not announcing a “per se rule” that counsel must always review the files of prior convictions in death penalty cases, but was employing its usual individualized approach. Counsel’s failure to review the file was unreasonable here in light of the factors highlighted in the majority, as well as the fact that counsel’s decision not to review the file was the result of inattention, not strategic judgment. Led by Justice Kennedy, the dissenters argued that the Court’s new rule requiring review of prior conviction files will waste valuable defense resources and is unlikely to improve the quality of defense. The dissenters found counsel’s investigation not only “effective,” but “conscientious.” Moreover, Rompilla could not demonstrate prejudice since it was unlikely that counsel would have come across the evidence cited by his appellate counsel (all found in a bureau of prisons report) — its discovery was the proverbial needle in the haystack and was shear “serendipity.”

Continued in Part II.