Dye v. Hofbauer (04-8384) and order list

October 11, 2005 Supreme Court Update

Greetings, Court Fans!
The Court issued its first opinion of the Term today – a unanimous per curiam reversal in Dye v. Hofbauer (04-8384). (If this is any indication of how the new Chief will run the ship, we may be in for a very efficient term!) Dye claimed that the state prosecutor engaged in misconduct during his trial. A Michigan district court denied habeas relief, but a divided panel of the Sixth Circuit reversed, finding flagrant misconduct. After additional procedural wrangling and the retirement of a majority panel member, the Sixth Circuit issued another ruling, this time finding that Dye had not adequately raised his federal constitutional claim in state court and therefore could not bring this claim in federal court. The basis for this conclusion: that the Michigan Appellate Court's decision analyzed only state law. Alternatively, the Sixth Circuit found that Dye's habeas claim was too vague to be cognizable. The Court reversed on both grounds. First, the Court found that Dye adequately raised his federal claim – his state court briefs specifically relied on the Fifth and Fourteenth Amendments and on federal case law, and it was not Dye's fault that the state court chose to ignore the federal claim. On the second issue, the Court found that while the petition itself was vague as to the alleged prosecutorial misconduct, Dye had appended to the petition a supporting brief fleshing out the claim in more than adequate detail. Clearly an error correction case – but certainly a nice collegial way to get the Term rolling.
The Court also issued an order list that was most notable for an omission – the absence of any ruling on the cert petition in Hamdan v. Rumsfield (05-184), which challenges the Bush Administration's plan to use military commissions to try some terrorism suspects. That case has been relisted (for the second time) and will be considered at this Friday's conference. Among the possibilities being bandied about: (1) the Court will deny cert, but one or more Justices are writing dissents, or (2) the Court is waiting on the D.C. Circuit to rule on pending motions to intervene and to disqualify the new Chief's vote in the lower court's ruling, which could vacate the ruling now being challenged. So we may see something next Monday.
The Court also granted cert in three cases, two dealing with the Clean Water Act. In the consolidated cases of Rapanos v. United States (04-1034) and Carabell v. Army Corps of Engineers (04-1384), the Court will consider the following questions (taken from Carabell): (1) Does the Clean Water Act extend to wetlands that are hydrologically isolated from any of the "waters of the United States"? (2) Do the limits on Congress' authority to regulate interstate commerce preclude an interpretation of the Clean Water Act that would extend federal authority to wetlands that are hydrologically isolated from any of the "waters of the United States?" Next, in S.D. Warren Co. v. Maine Board of Environmental Protection (04-1527), the Court will consider whether "the mere flow of water through an existing dam constitutes ‘discharge' under Section 401 of the Clean Water Act, despite the Court's holding in South Florida Water Management District v. Miccosukkee Tribe of Indians that discharge requires the addition of water from a distinct body of water?" The facts of S.D. Warren don't quite come through in the question presented – in essence, the Court will decide whether a hydroelectric power plant that takes in water and returns it unchanged has to get a Clean Water Act permit for its operations.
The third cert grant came in Zurich Insurance Co. v. Chatham County, Georgia (04-1627), which presents seven questions dealing with a Georgia county's successful claim of sovereign immunity following the collapse of a bridge onto a passing boat. Reprinting all seven of the petitioner's (lengthy) questions would clog the Internet, but the central questions involve (1) whether the lower courts' rulings conflict with past U.S. and Georgia Supreme Court decisions denying sovereign immunity as contrary to maritime law, and (2) whether the lower courts erred in holding that the county, as a political subdivision of Georgia, was an "arm of the state" that could claim sovereign immunity even though Georgia had no control over the bridge and would not be responsible for satisfying an adverse judgment.
The Court also invited the SG to weigh in with his views on the cert petitions in four other cases that piqued the Court's curiosity. They are:
Vines v. University of Louisiana at Monroe (04-1615): This is another case with lengthy questions presented. The principal questions concern whether, after an adverse ruling against the EEOC in an ADEA case against an employer, res judicata or collateral estoppel bars a private state-law antidiscrimination lawsuit by the employee whose case gave rise to the EEOC proceeding.
Arlington Central School District v. Murphy (05-18): This petition asks whether, under the attorneys' fees provisions of the Individuals with Disabilities Education Act, a court can award "expert" fees to the parents of a disabled child who is a prevailing party and, if so, whether the parents here were entitled to a partial award of fees paid to an "educational consultant."
Cruz v. Blue Cross & Blue Shield of Illinois (04-1627): This case concerns whether the scope of the Federal Employees Health Benefits Act ("FEHBA"), which expressly limits federal court jurisdiction to claims brought against the United States, should be judicially expanded to include claims by a private carrier against its insureds.
Empire Healthchoice Assurance v. McVeigh (05-200): In another FEHBA case, this petition concerns whether federal question jurisdiction exists over a suit by a federal government contractor to enforce, on behalf of the United States, a provision in a health benefits plan for federal employees that is part of a government contract.
That's all for this week. 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.