Norton v. Southern Utah Wilderness Alliance (03-101), United States v. Benitez (03-167), Hibbs v. Winn (02-1809) and order list

June 16, 2004 Supreme Court Update

Greetings Court fans!
As promised, here is the rest of the news from the Supreme Court this week.
I'll begin this update with Norton v. Southern Utah Wilderness Alliance (03-101), an Administrative Procedure Act (APA) case, and another win for my former colleagues in the Environment and Natural Resources Division of the Department of Justice -- congratulations to Sue, John, and Andrew on the victory! The question in this case centers on APA Section 706(1), a provision that allows courts to "compel agency action unlawfully withheld or unreasonably delayed." Environmentalists claimed that the Interior Department failed to protect wilderness areas from environmental damage caused by "off-road vehicles" (ORVs), and sought an order under 706(1) compelling the agency to protect against ORV harm as required by a statute, a land management plan, and the National Environmental Policy Act. In a unanimous opinion, authored by Scalia, the Court held that the environmentalists' claims are not actionable under the APA. Scalia reviews the language of the APA, prior practice, and the Attorney General's Manual on the APA ("a document whose reasoning we have often found persuasive") to conclude that a claim under 706(1) may proceed only where the plaintiff claims that the agency failed to take a discrete agency action that it is required to take. In other words, this section may not be used to lob broad programmatic challenges at agencies or to force particular actions when the agency is given discretion to choose its course of action. With this background, Scalia rejects the claim that Interior failed to prevent degradation of wilderness areas as required by 43 USC 1782. While that section requires Interior to prevent degradation, it gives the agency considerable discretion in deciding how to achieve that goal. The environmentalists wanted the court to enter a general order compelling the agency to comply with the statutory non-degradation mandate, but that type of order, according to Scalia, would cause undue judicial interference with the agency's exercise of discretion in how to comply with that mandate. Scalia similarly rejects the argument that the agency could be compelled to comply with a land use plan which included a provision stating that the agency would monitor ORV use. The land use plan, according to Scalia, is merely a statement of priorities. While it guides and constrains actions, it does not prescribe actions and hence there is no specific agency action that could be compelled under 706(1). Finally, Scalia rejects the environmentalists' claim that the agency must consider evidence of increased ORV use for a supplemental environmental impact statement because the contemplated agency action -- the land use plan -- is complete. With no ongoing federal action, there is no need for a supplemental EIS and so no need to consider increased ORV use.
Next, in United States v. Benitez (03-167), the Court announced the standards for unpreserved claims that a trial court violated Rule 11. Rule 11 of the Rules of Criminal Procedure requires trial courts to engage in a colloquy with defendants during plea proceedings to ensure that they understand what they are doing. Here, Benitez claims that the district court failed to warn him, as required by Rule 11, that he could not withdraw his guilty plea if the court did not accept the government's sentencing recommendation. He did not raise this claim in the district court, and so the alleged error requires reversal only if the error is "plain," that is, that it has an effect on his "substantial rights." The question thus arises as to what is the standard for showing an effect on substantial rights. Souter (for everyone but Scalia) holds that a defendant must show a reasonable probability that, but for the error, he would not have pleaded guilty. Because Benitez could not meet this standard in this case, his Rule 11 claim must fail. Scalia concurred. Although I try to avoid commentary on cases, I have to confess that I agree with Scalia on this one. As his opinion points out, the Court has adopted at least 4 different standards of probability related to the assessment of whether the outcome of a trial would have been different if error had not occurred or if omitted evidence had been included. To quote Scalia, "such ineffable gradations of probability seem to me quite beyond the ability of the judicial mind (or any mind) to grasp, and thus harmful rather than helpful to the consistency and rationality of judicial decisionmaking." For Scalia, there should only be two standards, the traditional "beyond a reasonable doubt" and "more likely than not," and in this case, he would apply the "more likely than not" standard.
Saving the best for last, in the final opinion from Monday, the Court decided Hibbs v. Winn (02-1809), a case interpreting the Tax Injunction Act (TIA). Arizona taxpayers brought suit in federal court claiming that an Arizona statute that (much simplified) grants tax credits for tuition to religious schools violates the Establishment Clause. The State claimed that the suit was barred by the TIA, which prohibits federal courts from restraining "the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." The Ninth Circuit rejected this argument, and the Supreme Court (opinion by Ginsburg, joined by Stevens, O'Connor, Souter, and Breyer) affirmed.
Before addressing the merits, the Court rejected the State's argument that the cert petition in this case was untimely. (This is a technical issue on the rules governing the timing of cert petitions. While interesting to those of us who follow the Court, it's a little arcane for this update so I'll skip it for now.) On the merits, this is a basic statutory interpretation question. On the theory that you're probably not fascinated by the interpretation of the TIA, let me offer this brief summary: To interpret the TIA, the Court (1) looks to the use of words in other statutes, (2) applies the rule that a phrase gathers meaning from the words around it, (3) applies the rule against superfluous language in a statute, (4) reviews a statute that served as a model for the TIA, (5) considers the purpose of the statute as identified in the legislative history, and (6) reviews prior court decisions interpreting the statute. All of this analysis leads the Court to the conclusion that the TIA only applies in suits in which state taxpayers seek federal court orders enabling them to avoid paying state taxes. It does not apply in this context, where the suit would result in additional tax revenue flowing to the state. Finally, Ginsburg buttresses her conclusion by noting that in a series of prior cases challenging state tax credits that were designed to circumvent Brown v. Board of Educ., nobody ever suggested that the TIA would bar those suits. Stevens concurred to note that this long history of non-application of the TIA in tuition tax credit cases, with corresponding congressional silence, supports the Court's conclusion. Kennedy (joined by the Chief, Scalia and Thomas) dissented. He believes that a literal reading of the TIA requires dismissal of the taxpayers' suit.
Finally, in news from the order list, the Court granted cert in three cases:
1. Jackson v. Birmingham Board of Education (02-1672): The Court will decide whether, under Title IX, there is a private right of action for claims of retaliation for complaining about unlawful sex discrimination.
2. Muehler v. Mena (03-1423): This is a Fourth Amendment case raising the following questions: (1) Did the Ninth Circuit err in holding that law enforcement officers who have lawfully detained an individual pursuant to a valid search warrant engage in additional, unconstitutional seizure if they ask that person questions about criminal activity without probable cause to believe that the person is or has engaged in such activity? (2) Did the Ninth Circuit err in ruling that a 2-3 hour detention of an occupant of a suspected gang safe-house while officers searched for concealed weapons and other evidence of a gang-related drive-by shooting was unconstitutional because the occupant was initially detained at gun-point and handcuffed for the duration of the search?
3. Smith v. Massachusetts (03-8661): In this case, the Court will decide whether the Double Jeopardy clause is violated when a trial judge rules that a defendant is not guilty because the government's evidence is insufficient but later reverses her finding.
For those of you keeping track, the Court still has 16 opinions to go before the end of June. Still awaiting decision are the following:
1. U.S. v. Patane (Miranda; fruit of the poisonous tree)
2. Missouri v. Seibert (intentional failure to give Miranda warnings)
3. Beard v. Banks (retroactivity of Mills v. Maryland)
4. Ashcroft v. ACLU (constitutionality of Child Online Protection Act)
5. Tennard v. Dretke (application of Atkins v. Virginia)
6. Hiibel v. Sixth Judicial District Court (requirement to provide identifying information to police)
7. Blakely v. Washington (application of Apprendi v. New Jersey)
8. Aetna Health Inc. v. Davila (ERISA preemption of a claim for "failure to cover" against a health plan)
9. Sosa v. Alvarez-Machain (Alien Tort Act and Federal Tort Claims Act)
10. Schriro v. Summerlin (retroactivity of Ring v. Arizona)
11. Rasul v. Bush (jurisdiction to review detentions at Guantanamo Bay)
12. Intel Corp. v. Advanced Micro Devices (discovery for use in foreign jurisdictions)
13. Pliler v. Ford (handling of habeas petitions with exhausted and non-exhausted claims)
14. Cheney v. US Dist. Ct. for the District of Columbia (confidentiality of records from VP's energy task force)
15. Hamdi v. Rumsfeld (detention of American citizen, seized abroad, as enemy combatant)
16. Rumsfeld v. Padilla (detention of American citizen as enemy combatant)
That's all for this week. The Court will hand down opinions again on Monday. Until then, thanks for reading!

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