National Cable & Telecommunications Ass'n v. Brand X Internet Services (04-277), Castle Rock v. Gonzalez (04-278) and Bell v. Thompson (04-514) and order lists

June 28, 2005 Supreme Court Update

Greetings, Court Fans!
We're back to finish up the Term! Because this is a lengthy Update (three opinions and nine cert grants), we should do a few things at the outset. First, we want to thank all of you for following the Court with us this Term -- we very much appreciate your responses, comments, and criticisms, and we look forward to sending more Updates your way for the October 2005 Term. Second, based on a reader's suggestion, we have collected the Term's Updates into a one-stop shopping summary, with opinions organized by subject and accompanied by our brief take on the Term. You can expect to see that in your e-mail soon. We hope you find it as useful and fun to read as it has been for us to compile. With that, on to the last three opinions!
In National Cable & Telecommunications Ass'n v. Brand X Internet Services (04-277) and FCC v. Brand X Internet Services (04-281), the Court upheld 6-3 an FCC order allowing cable Internet providers to monopolize their transmission lines rather than open them up to other Internet service providers (ISPs). The case concerned the Communications Act, which governs "telecommunications carriers" who "offer" telecommunications services and must allow other carriers to connect to their networks, and "information-service providers," who do not. The FCC classified cable broadband companies as information-service providers -- basically finding that although they own transmission facilities, they do not "offer" telecommunications services but use telecommunications to "offer" integrated information and computer services. Non-facilities-based ISPs challenged the ruling, which the Ninth Circuit vacated because of its earlier holding in AT&T Corp. v. Portland that cable Internet providers were telecommunications carriers.
Led by Justice Thomas, the Court reversed on the ground that the Ninth Circuit should have deferred to the FCC ruling notwithstanding Portland. As a quick refresher, Chevron U.S.A. Inc. v. NRDC held that, when an agency has jurisdiction over a matter, statutory ambiguities effectively delegate authority to the agency, within reason, to fill in the gaps. Building on Chevron, the majority held that a prior court decision only trumps an agency interpretation if the court ruling also finds the statute unambiguous, leaving no gap for the agency to fill. Otherwise, the agency retains authority to construe the statute. This may seem odd, but it is no different from a state court adopting an authoritative interpretation of state law that conflicts with a prior federal court decision. Portland did not hold that the Communications Act was unambiguous, so the Ninth Circuit should have applied Chevron, under which the FCC ruling was reasonable. The FCC reasonably could interpret an "offer" of telecommunications services to mean a "stand-alone" offer of services that transmit messages unadulterated by computer processing, a definition that would rule out cable Internet providers. In an effort to distinguish data services provided by phone companies (who clearly are telecommunications carriers), the Court found that services like voice mail are de minimis and operate independently of the transmission path, unlike broadband where transmission is inextricably intertwined with data storage and processing (the Court's examples included cacheing and DNS services). Finally, the fact that the FCC treated phone companies' DSL Internet services differently did not make its cable ruling arbitrary or capricious, as the FCC gave a reasoned explanation as to why market conditions in the cable industry warranted a different approach. Justice Stevens filed a short, but interesting, concurrence to note that the majority's ruling would not "necessarily" allow an agency to disagree with the Court's construction of a statute, which "would presumably remove any pre-existing ambiguity." Justice Breyer also concurred, noting that the FCC ruling fell within Chevron -- "though perhaps just barely" -- and disagreeing with the dissent's interpretation of prior case law.
Justice Scalia, joined by Souter and Ginsburg, dissented on the ground that the FCC's "stand-alone" take on what it meant to "offer" telecommunications services was ridiculous. Here's a paraphrase of his best analogies: If you called up a pizzeria and asked if they "offered" delivery, and they said no but that they would bring the pizza to your house in an integrated process along with their other home pizza services, you'd think they were nuts ("or following some too-clever-by-half legal advice"). Similarly, a pet store may sell only leashed puppies, but they still "offer" puppies, just not on a "stand-alone" basis. [The majority's response: "We . . . do not share the dissent's certainty that cable modem service is so obviously like pizza delivery service and the combination of dog leashes and dogs that the Commission could not reasonably have thought otherwise."] Here, the telecommunications component of cable Internet service is similarly independent to the point of being an "offer," as the DSL world recognizes by selling the phone line separate from the Internet access. Scalia thought the majority's de minimis exception for phone data services was equally ridiculous and indistinguishable from cable Internet features. In Part II of his dissent (now on his own), Scalia noted that there are probably large numbers of court decisions now agency-reversible for lack of an express finding that the statute was "unambiguous," a result that was wholly unnecessary because Portland did not govern the Court's reading of the statute in the first place. "It is a sadness that the Court should go so far out of its way to make bad law."
Turning to the heart-wrenching case of Castle Rock v. Gonzalez (04-278), the Court held 7-2 that the recipient of a restraining order does not have a property right in its enforcement that is protected under the Due Process Clause of the14th Amendment. Rebecca Gonzalez obtained a restraining order against her husband, but the police ignored her requests to enforce the order after he abducted their three children -- repeatedly telling her to call back later. The husband ultimately showed up at the police station, opened fire, and committed suicide. Gonzalez's three children were found dead in his car. She sued under 42 U.S.C. 1983 claiming that she had a property interest in having the police enforce the restraining order because enforcement was mandatory under state law, and that she was deprived of this right without procedural due process (i.e., the police refused to listen to her and to determine whether conditions were met for arrest).
Writing for the majority, Justice Scalia rejected Gonzalez's claim. The majority did not defer to the Tenth Circuit's determination that Colorado law created a property right in enforcement because that decision did not "draw upon a deep well of state-specific expertise" and ultimately the question was one of federal constitutional law. On the merits, the Court first found that the "seemingly mandatory language" in the Colorado statute (i.e., "you shall arrest") was not sufficiently clear to override the long history of discretion in police enforcement. (Yes, this is plain language Scalia writing for the Court!) Second, even if the statute clearly required arrest if the violator were present, here, the whereabouts of the husband were unknown for portions of the evening, and state law required only that police obtain an arrest warrant -- but the right to a warrant is nothing more than the right to process, not a protected form of property. Third, even assuming that the statute required mandatory enforcement, "that would not necessarily mean that state law gave respondent an entitlement to enforcement of the mandate." If the statute had intended to create a private ability to require arrest or provide a cause of action, it likely would have said so. Finally, even if the statute entitled an individual to enforcement, this was not a "property" interest for due process purposes because it was incidental to ordinary law enforcement functions, which are intended to protect the public as a whole and only incidentally benefit individuals. Together with its 1987 decision in DeShaney v. Winnebago County Dep't of Social Services, which rejected a substantive due process claim under similar circumstances, Gonzalez effectively sounded the death knell for section 1983 claims arising from failure to arrest: "This reflects our continuing reluctance to treat the Fourteenth Amendment as a ‘font of tort law.'" Justice Souter, joined by Breyer, concurred to emphasize that the right claimed by Gonzalez is really just a right to state procedure, which is not "property."
The dissent, Justice Stevens joined by Ginsburg, would have deferred to the Tenth Circuit on the state law issues ("it is certainly plausible to construe . . . ‘shall arrest' . . . as conveying mandatory directives to police"), or absent that, certified the issue to the Colorado Supreme Court. Moreover, they disagreed with the majority's treatment of the mandatory language in the Colorado restraining order statute as equivalent to the "seemingly mandatory" language in other criminal laws that were interpreted to preserved police discretion. Legislative history (in Colorado and around the country) reflected that a wave of mandatory arrest statutes were passed specifically to remove police discretion in the domestic violence arena. Though the Colorado Supreme Court had not yet construed Colorado's statute, other states with similar statutes had found no discretion for police to decline to act. Whether the Colorado Supreme Court would agree was not clear, "but it does seem rather brazen for the majority to assume that the Colorado Supreme Court would repudiate this consistent line of cases from other states." Further, the right to enforcement is personal (residing only in those protected by the particular restraining order) and resembles other types of protected property interests such as welfare and public education. Under these circumstances, the failure to listen to Gonzalez and determine whether enforcement was necessary violated procedural due process.
Finally, in Bell v. Thompson (04-514), a habeas case involving a claim of ineffective assistance of counsel in a capital sentencing proceeding, a 5-4 Court held that the Sixth Circuit abused its discretion by withholding its mandate for five months after the Court disposed of Thompson's cert petition and by reversing its earlier decision affirming summary judgment against Thompson. The issue presented was whether FRCP 41 required the Sixth Circuit to issue its mandate immediately after the denial of cert (section (c)(2)(D) provides that "the court of appeals must issue the mandate immediately when a copy of the Supreme Court order denying the petition for writ of certiorari is filed") or whether appellate courts may extend the time for issuing the mandate (section (b) provides that the "court may shorten or extend the time"). The Kennedy-led majority, however, found no need to interpret Rule 41, because even assuming that appellate courts had discretion to extend the time, the Sixth Circuit abused that discretion.
Thompson's claim of ineffective assistance was based on his counsel's alleged failure to investigate whether he had a mental illness that would have served as a mitigating factor in sentencing. His habeas counsel obtained expert deposition testimony that Thompson was mentally ill at the time of the crime, but that testimony was inadvertently omitted from the record before the district court, which found that Thompson offered only evidence of his mental health subsequent to conviction and entered summary judgment. Habeas counsel realized the mistake a year later and attempted to supplement the record, but the court denied their Rule 60(b) motion. On appeal, the Sixth Circuit affirmed, again finding no evidence that Thompson was mentally ill at the time of the crime; that court later denied Thompson's motion for reconsideration attaching the misplaced expert testimony. The Sixth Circuit's mandate was stayed while the Court reviewed Thompson's cert petition. While the petition was pending, one of the members of the Sixth Circuit panel that had reviewed Thompson's case came upon the testimony and began re-reviewing the record. While it is not clear why the Sixth Circuit panel did not previously notice the testimony, the re-review caused the panel unanimously to reconsider its earlier ruling, delay issuing the mandate and, ultimately, alter its result and remand to the district court.
The majority found the panel's delay in issuing the mandate an abuse of discretion. First, the delay of five months was substantial. Second, the appellate court failed to give notice to the parties of its decision to reconsider. Third, the state relied on the apparent conclusion of the habeas case to move forward with other proceedings relating to Thompson's execution, expending valuable resources. Further, litigation after the denial of cert should be "infrequent" and undertaken only in extraordinary circumstances to prevent a miscarriage of justice. Here, the expert testimony had been put before the appellate court prior to the cert petition and it was unlikely to alter the district court's result since it came so long after conviction and did not undercut the fact that Thompson's trial counsel did investigate his mental health (to no avail) and decided not to pursue that mitigation strategy at trial. This evidence was simply not of the "character" to warrant such an "extraordinary departure from standard appellate procedures."
The dissent, authored by Justice Breyer and joined by Stevens, Souter and Ginsburg, would give appellate courts wider latitude to correct their errors. Regardless of how the expert testimony was overlooked, the Sixth Circuit unanimously found that it was "critical" evidence and warranted a different result. Moreover, as to the failure to notify and resulting prejudice to the state, the state easily could have determined the status of the mandate and not wasted its efforts with preparations for Thompson's execution. Rules should not override justice, which is why "the system often grants judges a degree of discretion , thereby providing oil for the rule-based gears." The rules allowed such discretion here and the Sixth Circuit should be commended for refusing to "divorce the rule-based result from the just result."
On Monday, the Court granted cert in several new cases. They are:
Bank of China, NY Branch v. NBM LLC (03-1559): Did the Court of Appeals for the Second Circuit err when it held that civil RICO plaintiffs alleging mail and wire fraud as predicate acts must establish "reasonable reliance" under 18 U.S.C. 1964(c)?
Whitman v. Department of Transportation (04-1131): 1) Whether 5 U.S.C. 7121(a)'s provision that the negotiated grievance procedures of a federal collective bargaining agreement be "the exclusive administrative procedures" to resolve grievances precludes an employee from seeking direct judicial redress when he would otherwise have an independent basis for judicial review of his claims; 2) Whether the Civil Service Reform Act, 5 U.S.C. 7101 et seq., precludes federal courts from granting equitable relief for constitutional claims brought by federal employees against their employer.
Hudson v. Michigan (04-1360): Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a Fourth Amendment "knock and announce" violation, as the Seventh Circuit and the Michigan Supreme Court have held, or is evidence subject to suppression after such violations, as the Sixth and Eighth Circuits, the Arkansas Supreme Court, and the Maryland Court of Appeals have held?
Hartman v. Moore (04-1495): Whether law enforcement agents may be liable under Bivens for retaliatory prosecution in violation of the First Amendment when the prosecution was supported by probable cause.
Texaco, Inc. v. Dagher (04-805) and Shell Oil Company v. Dagher (04-814): In these consolidated cases, the Court will consider whether it is per se illegal concerted action under Section 1 of the Sherman Act for an economically integrated joint venture to set the selling price of its own products.
Also on Monday, the Court denied review in Miller v. United States (04-1507) and Cooper v. United States (04-1508), which asked the Court to recognize a right not to divulge confidential sources (here, in the investigation of the identification of Valerie Plame as a CIA operative to columnist Robert Novak).
Today, the Court issued its final order list of the term. Following up on its rulings in the Ten Commandments cases, the Court declined to review rulings invalidating displays in public schools, and a courtroom. The Court also declined to review a ruling forbidding prayers referring to Jesus Christ before city council meetings. And following up on last week's rulings, the Court turned away another "private to private" takings case. The Court did grant cert in three new cases:
Scheidler v. NOW (04-1244) and Operation Rescue v. NOW (04-1352): In its 2003 ruling in Scheidler v. NOW, the Court reversed a civil RICO judgment and injunction against anti-abortion protesters, finding that all the predicate acts supporting the finding of a RICO violation had to be reversed; therefore the judgment had to be reversed and the injunction vacated. Thus, the Court did not reach the issue of whether a private civil RICO plaintiff can get injunctive relief in the first place. The two new cases stem from the Seventh Circuit's treatment of Scheidler on remand and raise similar questions presented. Here are Scheidler's: 1) Whether the Seventh Circuit, on remand, disregarded this Court's mandate by holding that "all" of the predicate acts supporting the jury's finding of a RICO violation were not reversed, that the "judgment that petitioners violated RICO" was not necessarily reversed, and that the "injunction issued by the District Court" might not need to be vacated. 2) Whether the Seventh Circuit correctly held that the Hobbs Act, 18 U.S.C. 1951(a), can be read to punish acts or threats of physical violence against "any person or property" in a manner that "in any way or degree . . . affects commerce," even if such acts or threats of violence are wholly unconnected to either extortion or robbery. 3) Whether this Court should again grant cert to resolve the deep and important intercircuit conflict over whether injunctive relief is available in a private civil action for treble damages brought under RICO, 18 U.S.C. 1964(c).
Rice v. Collins (04-52): Does 28 U.S.C. 2254 allow a federal habeas corpus court to reject the presumption of correctness for state fact-finding, and condemn a state-court adjudication as an unreasonable determination of the facts, where a rational fact-finder could have determined the facts as did the state court?
House v. Bell (04-8990): The precise question presented in this IFP habeas case is not yet available, but it concerns the standard of review of a death row inmate's postconviction challenge based on actual innocence as supported by DNA evidence. A deeply divided en banc session of the Sixth Circuit found that House's innocence claim was not strong enough to excuse his failure to raise it first in state court.
That's it for October Term 2004! Have a great summer, and until this fall, thanks for reading!
Kim & Ken

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer,
or Jeff Babbin at 203-498-440