Cunningham v. California (05-6551), Osborn v. Haley (05-593), Jones v. Bock (05-7058) and order list

January 25, 2007 Supreme Court Update

Greetings, Court Fans!
The Court is on recess again (until February 20) but before departing it issued three new decisions. The lead case was another example of the carnage that the Court hath wrought in its recent criminal sentencing jurisprudence. If that doesn't get your juices flowing, you can skip ahead for cases on the Prison Litigation Reform Act and removal jurisdiction under the Westfall Act for suits against federal employees (or maybe you'll be interested to see the Court's latest cert grants even further ahead . . . .).
The drama of the week came in Cunningham v. California (05-6551), where a 6-3 Court invalidated California's criminal sentencing guidelines. The case requires a bit of background: In 2000, the Court held in Apprendi v. New Jersey that the Sixth Amendment right to a jury trial requires that a defendant cannot get more than the statutory maximum sentence for his offense unless the jury finds all the facts justifying the increase to be proved beyond a reasonable doubt. In 2004, the Court followed up with Blakely v. Washington, where it invalidated that state's sentencing guidelines because they authorized upward departures from standard sentences based on post-trial judicial factfinding rather than on the jury's verdict. In its 2005 decisions in United States v. Booker and United States v. Fanfan, two different five-Justice majorities (bridged only by Justice Ginsburg, who strangely wrote nothing at the time) held on the one hand that the same rule applied to the federal sentencing guidelines, but on the other hand that the guidelines could remain in place so long as they were merely "advisory" for judges (five Justices being unwilling to graft a jury-trial requirement onto the whole of the guidelines). You can find our predecessor Sandy Glover's June 28, 2004 summary of Blakely, and our January 12, 2005 summary of Booker/Fanfan, at
Cunningham turned the Court's attention to California, where a rather unsympathetic defendant was convicted of continuous sexual abuse of a child. Under California's sentencing system, the judge had to sentence him to a standard term of 12 years unless the judge found certain "circumstances in aggravation," which could yield an "upper" term of 16 years (there also was a "lower" term option, not relevant here, of 6 years). Cunningham got the upper term, and he argued that the whole scheme ran afoul of Apprendi and its progeny. The Court agreed. Justice Ginsburg (silent in Booker) wrote for the majority, which included the Chief and Justices Stevens, Scalia, Souter and Thomas. Given the background, the result in Cunningham is hardly surprising: By giving sentence-elevating factfinding to the judge, the California guidelines violate the right to a jury trial. The California courts had tried to avoid Apprendi by reasoning that the judge had not sentenced Cunningham beyond the statutory maximum – the statute did provide for 16 years, only subject to a judge's "traditional discretion" in choosing a sentence within a given range. The Court didn't buy it: "If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact [beyond the verdict] to impose the longer term, the Sixth Amendment requirement is not satisfied." The judge here had no discretion – he could impose 12 years, nothing more, unless he found aggravating circumstances allowing the upper term. So California has to junk its current system, though the ball is in California's court as to what to do in future cases – have juries find all sentencing facts, or give judges truly discretionary sentencing power.
Justice Alito wrote the principal dissent, which Kennedy and Breyer joined. Apprendi and its successors make clear that fully discretionary sentencing decisions, subject to reasonableness review, can be based on judicial factfinding. California's system gives judges broad discretion, in that they can look to "practically everything which has a legitimate bearing on the case" to decide whether to depart from the middle term for a crime (and many of these factors, Alito argued, are not necessarily "facts" within the meaning of the term as used in the context of jury trials and the Sixth Amendment). Given those similarities to the new federal system, Alito (a former prosecutor, for what it's worth) would have let the California system stand. Kennedy wrote his own dissent (which Breyer joined) to say that the Court has gone off the reservation since Apprendi. He suggests limiting that case's holding to enhancements based on the nature of the offense (heinousness, etc., which easily could go to the jury), but not to enhancements based on the nature of the offender (i.e., prior convictions, remorse or lack thereof).
The next decision was Osborn v. Haley (05-593), another Ginsburg opinion, which concerned the Federal Employees Liability Reform and Tort Compensation Act, more commonly known as the Westfall Act (no one liked "FELRTCA"). The Act gives federal employees absolute immunity from tort suits arising out of their official actions. The way it works is that once the Attorney General certifies that a defendant employee was acting within the scope of his duties, the employee is dismissed and the United States is substituted in his place; moreover, if the action was brought in state court, it is removed to federal court, with the AG's certification being "conclusive" for removal purposes according to the statute. Here, Osborn alleged in Kentucky state court that Forest Service employee Haley tortiously interfered with her employment with a private contractor. The AG certified, contrary to Osborn's allegations, that Haley was acting in his official capacity; the case was removed to federal court, where the government denied that Haley did anything at all. The district court, accepting all of Osborn's allegations as true, rejected the AG's Westfall Act certification – removing the government from the case and sending it back to state court – essentially holding that the AG cannot certify that an employee was acting in his official capacity if the employee denies that he acted at all.
The Court (Ginsburg, joined in whole by the Chief, Stevens, Kennedy and Alito, and in part by others as noted below) agreed with the Sixth Circuit that the trial court made a mistake. Of note to appellate jurisdiction junkies, the Court first concluded that the lower court ruling was reviewable. Under 28 U.S.C. 1447, remand orders on jurisdictional grounds generally cannot be appealed, but the Westfall Act's language that an AG certification is "conclusive" for removal purposes meant that the district court simply could not remand; there was no jurisdictional inquiry for the district court to undertake in this "extraordinary" case where Congress "has ordered the intercourt shuttle to travel just one way." On the substance, the Court held that Westfall Act certification is proper even when a defendant denies that he acted at all. Because the Act was supposed to shield employees from suit, not just liability, a court cannot reject a certification based solely on bare allegations in a complaint. Moreover, it would seem odd to deny Westfall Act protection to employees who did nothing but give it to employees who admit conduct but claim official capacity ("It is illogical to assume that Congress intended to protect guilty employees but desert innocent ones."). Instead, where conduct is contested the court must undertake its own investigation of the facts before ruling on the immunity issue as quickly as possible. Recognizing that this might deprive a plaintiff of a jury trial, the Court noted that upon certification the suit is against the government, and there is no Seventh Amendment jury trial right as against the sovereign.
There were three other opinions in the case. Justice Breyer agreed that the case was reviewable, but dissented on the substance. He would allow Westfall Act certification only if the AG accepts, at least conditionally, that something happened (call it the O.J. Simpson Pleading: "Nothing happened, but if it did, it was in Haley's official capacity."). Justice Souter went a step further, dissenting from the bulk of the ruling on jurisdictional grounds: Under 28 U.S.C. 1447, remand orders are never reviewable, no matter how obvious the error (see our June 19, 2006 summary of Kircher v. Putnam Funds Trust, available at the link posted in the Cunningham discussion). In an attempt to save "half a loaf," however, he would allow appellate courts to review resubstitution orders – meaning here that the Sixth Circuit could not fix the remand, but could stop Haley from being added back into the case. Souter hoped that this would allow appellate courts to highlight errors that the district courts could self-correct before any mistaken remands took effect (good luck with that). Finally, Justice Scalia (with Thomas) dissented entirely, writing that the Court's ruling "eviscerated" 28 U.S.C. 1447. He rejected Souter's half-a-loaf approach, pointing out that remand orders and resubstitution orders are inseparable – this case could not be remanded to Kentucky as "Osborn v. United States" because federal courts have exclusive jurisdiction over Federal Tort Claims Act cases.
Last up was Jones v. Bock (05-7058), in which a unanimous Court struck down the Sixth Circuit's procedural rules governing litigation under the Prison Litigation Reform Act. The PLRA requires prisoners challenging prison conditions or bringing civil rights claims to exhaust prison grievance procedures before filing suit. To weed out many of these suits (which clog the federal system), the Sixth Circuit "implemented" this exhaustion rule by (1) requiring a prisoner plaintiff within its jurisdiction to allege and demonstrate exhaustion within their complaints, (2) permitting suit only against defendants identified in the plaintiff's earlier grievance, and (3) requiring dismissal of the whole case if the plaintiff did not satisfy the exhaustion requirement as to any one of his claims, even if he did so for all the rest. Three Michigan inmates whose suits were dismissed succeeded in convincing the entire Court, led by the Chief, that the Sixth Circuit rules were out of bounds. The opinion is very thorough, but here's the gist: (1) the PLRA is silent on pleading requirements, so the standard federal practice applies that the plaintiff need not plead exhaustion, but failure to exhaust remains an affirmative defense for the defendants; (2) exhaustion is not per se inadequate because a defendant was not named in the earlier grievance – the issue is whether the inmates complied with the relevant state grievance procedures (Michigan's did not require them to name anyone specifically), not Sixth Circuit rules; and (3) if a complaint contains exhausted and unexhausted claims, a court cannot dismiss them all but must "proceed[] with the good and leave[] the bad."
Finally, the Court recently took several new cases:
Office of Senator Mark Dayton v. Hanson (06-618): This is a rare direct appeal case that asks: Does the Speech or Debate Clause of the U.S. Constitution . . . bar federal court jurisdiction of an action brought under the Congressional Accountability Act of 1995 by a congressional employee whose job duties are part of the due functioning of the legislative process? In addition, the Court asked the parties to address the following: (1) Was the Office . . . entitled to appeal the [D.C. Circuit] judgment directly to this Court? (2) Was this case rendered moot by the expiration of the term of office of Senator Dayton?
FEC v. Wisconsin Right to Life, Inc. (06-969) and McCain v. Wisconsin Right to Life, Inc. (06-970): These consolidated cases deal with the McCain-Feingold campaign finance law, asking whether a three-judge district court panel erred in holding that Section 203 of the Bipartisan Campaign Reform Act is unconstitutional as applied to the three advertisements that Wisconsin Right to Life sought to broadcast in 2004.
Beck v. Pace International Union (05-1448): More ERISA! This case asks: Whether a pension plan sponsor's decision to terminate a plan by purchasing an annuity, rather than to merge the pension plan with another, is a plan sponsor decision not subject to ERISA's fiduciary obligations.
Permanent Mission of India v. New York (06-134): (1) Does the exception to sovereign immunity for cases "in which . . . rights in immovable property situated in the United States are in issue," 28 U.S.C. § 1605(a)(4), provide jurisdiction for a municipality's lawsuit seeking to declare the validity of a tax lien on a foreign sovereign's real property when the municipality does not claim any right to own, use, enter, control or possess the real property at issue? (2) Is it appropriate for U.S. courts to interpret U.S. statutes by relying on international treaties that have not been signed by the U.S. Government and that do not accurately reflect international practice because they have only been signed by a limited number of other nations?
United States v. Atlantic Research Corp. (06-562): In a follow-up to a case two terms ago on contribution actions under CERCLA, this case asks: Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, but that does not satisfy the requirements for bringing an action for contribution under Section 113(f) of CERCLA, may bring an action against another potentially responsible party under Section 107(a).
Brendlin v. California (06-8120): Whether a passenger in a vehicle subject to a traffic stop is thereby "detained" for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop.
Powerex Corp. v. Reliant Energy Services (05-85): Whether an entity that is wholly and beneficially owned by a foreign state's instrumentality, and whose sole purpose is to perform international treaty and trade agreement obligations for the benefit of the foreign state's citizens, may nonetheless be denied status as an "organ of a foreign state" under the Foreign Sovereign Immunities Act of 1976, based on an analysis of sovereignty that ignores the circumstances surrounding the entity's creation, conduct, and operations on behalf of its government. In addition, the Court asked the parties to address whether the court of appeals had jurisdiction to review the remand order notwithstanding 28 U.S.C. 1447.
And with that, we are done, at least for a while. Barring any unusual orders or per curiam opinions, we'll see you when the Court comes back in late February. Until then, 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