Sprint Communications Co. v. APCC Services, Inc. (07-552), Greenlaw v. United States (07-330) and order list

June 25, 2008 Supreme Court Update

Greetings, Court Fans!
You're probably sick of us already, but we'll be cluttering your inbox a lot this week as we near the end. We've seen seven opinions so far this week – three on Monday, and four more this morning (including Kennedy v. Louisiana, in which the Court held that states cannot impose the death penalty for the crime of child rape, unless the perpetrator intended to and did kill the child). Tomorrow, we'll get the final three decisions of the Term, including the Court's long-awaited Second Amendment ruling in D.C. v. Heller. Today's update includes summaries of two decisions and the order list from Monday; we'll catch up with the rest of the week's rulings as quickly as we can. Once again, kudos to Tahlia Townsend for helping us cover all the opinions.
In Sprint Communications Co. v. APCC Services, Inc. (07-552), the Court split 5-4 over the riveting question of whether the assignee of a debt has standing to sue on the debt, even where the assignee has promised to give the recovery to the assignor (i.e., the original creditor). The answer: Yes. For the masochists among you, here are the details. When someone makes a long-distance call from a payphone, the long-distance carrier pays a fee to the payphone operator for connecting the call. When long-distance carriers fail to pay up, the amounts at stake usually are too small for payphone operators to bother suing on each claim. Instead, they will assign the rights to their claims to collection agencies, with the understanding that the agencies will aggregate a bunch of claims against a carrier and file suit on the entire batch. If successful, the agencies (or "aggregators") will turn around and give the recovery back to the payphone operators (who have paid the aggregators for their collection services). Sprint challenged the aggregators' standing to sue under this arrangement, arguing that they were not the real parties in interest and had no "redressable" injury because the recovery ultimately went to payphone operators. The Court disagreed. Justice Breyer's majority opinion noted that assignees long have been able to sue in court, especially where collection actions were involved, and there was no reason for a different result here. Sprint had the "redressability" concept of standing backwards – the issue is whether there is an injury that litigation can redress, not whether the named plaintiff intends to keep the recovery at the end of the day. (And if that were the test, all aggregators would have to do is write into the assignment contract that they get to keep one dollar out of any recovery, making the test worthless). The aggregator has suffered no injury, but the payphone operator has, and it has assigned the right to sue on that injury "lock, stock, and barrel" to the aggregator. Absent allegations of a bad-faith assignment, there was no reason to block the aggregators' suit. The Chief dissented, for himself and Justices Scalia, Thomas, and Alito. Citing Bob Dylan (yes, that one) for the proposition that "when you got nothing, you got nothing to lose", the Chief noted that standing focuses on whether the plaintiff personally would benefit from the litigation. An assignee who can sue but cannot keep the recovery has nothing at stake – aggregators' good will and business interests were mere "by-products" of the suit – and should have no standing to sue. (As to the majority's contention that aggregators could avoid his test and "all this fuss" for one dollar, the Chief thought that was a price that "most readers [of these opinions] would probably be happy to contribute.")
In Greenlaw v. United States (07-330), a 7-2 Court led by Justice Ginsburg held that the cross-appeal rule prohibits a federal appellate court from reaching out to correct plain error in a sentencing determination absent an appeal by the government. Over government objection and contrary to Supreme Court precedent, the district court inadvertently gave Greenlaw a fifteen-year break on his sentence. Greenlaw nonetheless appealed, asserting that his sentence was still too long. The government neither appealed nor cross-appealed but, in responding to Greenlaw's appeal, noted the district court's error. Invoking the "plain error" rule in Federal Rule of Criminal Procedure 52(b), the Eighth Circuit ordered the district court to increase Greenlaw's sentence. The Court reversed based on the cross-appeal rule, an unwritten but long-held doctrine that an appellate court may not alter a judgment to benefit a non-appealing party (i.e., the appellee has to cross-appeal to get a remedy). The Court held that, whether or not the cross-appeal rule is jurisdictional (it saw no need to decide), it is "inveterate and certain" and essential to notice and finality. Allowing courts to "sally forth" and fix errors that the government had seen fit to let lie would contravene 18 U.S.C. § 3742(b), which requires personal approval of the Attorney General or the Solicitor General for sentencing appeals, giving these "top representatives of the United States . . . the prerogative to seek or forgo appellate correction of sentencing errors." A curious trio of dissenting Justices – Alito, Stevens and, in part, Breyer – "did not understand why a reviewing court should enjoy less discretion to correct an error sua sponte than it enjoys to raise and address an argument sua sponte." They would treat the cross-appeal rule as prudential and discretionary. Stevens and Alito would have affirmed the Eighth Circuit's ruling, while Breyer felt that that the district court's error did not justify the Eighth Circuit's departure from the cross-appeal rule.
The Court's order list on Monday included a few items of note. First, the Court issued a "GVR" order in Gates v. Bismullah (07-1054), a habeas appeal that concerns whether lawyers for detainees found to be "enemy combatants" in the war on terror are entitled to access to all reasonably available materials in the government's possession that bear on that issue, or just to what was reviewed in the detainees' Combatant Status Review Tribunals. The D.C. Circuit had ruled that detainees could get access to the much broader record. The Court granted the government's cert petition, vacated the D.C. Circuit's ruling, and remanded the case for further review in light of the Court's recent ruling in Boumediene v. Bush.
Second, the Court issued seven cert grants for next Term on a broad range of issues. The new cases are:
Pacific Bell Telephone Co. v. Linkline Communications (07-512): Whether a plaintiff states a claim under Section 2 of the Sherman Act by alleging that the defendant – a vertically integrated retail competitor with an alleged monopoly at the wholesale level but no antitrust duty to provide the wholesale input to competitors – engaged in a "price squeeze" by leaving insufficient margin between wholesale and retail prices to allow the plaintiff to compete.
AT&T Corp. v. Hulteen (07-543): (1) Whether an employer engages in a current violation of Title VII when, in making post-[Pregnancy Discrimination Act] eligibility determinations for pension and other benefits, the employer fails to restore service credit that female employees lost when they took pregnancy leaves under lawful pre-PDA leave policies. (2) Whether the Ninth Circuit's finding of a current violation of Title VII in such circumstances gives impermissible retroactive effect to the PDA.
Ministry of Defense of Iran v. Elahi (07-615): Is an attachment against foreign sovereign property permissible when that property is "at issue in claims against the United States before an international tribunal," and that property is not a "blocked asset," pursuant to the terms of the 2000 Victims of Trafficking and Violence Protection Act and the 2002 Terrorism Risk Insurance Act?
Cone v. Bell (07-1114): (1) Is a federal habeas claim "procedurally defaulted" because it has been presented twice to the state courts? (2) Is a federal habeas court powerless to recognize that a state court erred in holding that state law precludes reviewing a claim?
Winter v. NRDC (07-1239): (1) Whether [the Council on Environmental Quality] permissibly construed its own regulation in finding "emergency circumstances" [justifying the Navy's use of midfrequency active sonar during training exercises without having completed an environmental impact statement]. (2) Whether, in any event, the preliminary injunction [blocking the exercises], based on a preliminary finding that the Navy had not satisfied NEPA's procedural requirements, is inconsistent with established equitable principles limiting discretionary injunctive relief.
Arizona v. Johnson (07-1122): In the context of a vehicular stop for a minor traffic infraction, may an officer conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense?
Harbison v. Bell (07-8521): (1) Does 18 U.S.C. §3599(a)(2) and (e) permit federally-funded habeas counsel to represent a condemned inmate in state clemency proceedings when the state has denied state-funded counsel for that purpose? (2) Is a certificate of appealability required to appeal an order denying a request for federally-funded counsel under 18 U.S.C. §3599(a)(2) and (e)?
That's all for now – but we'll be back with lots more. Until then, thanks for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400