Supreme Court Update: City of Arlington, Texas v. FCC (11-1545 and 11-1547), McQuiggin v. Perkins (12-126), and Trevino v. Thaler (11-10189)

May 31, 2013 Supreme Court Update

Greetings, Court fans!

Today we bring you City of Arlington, Texas v. FCC (11-1545 and 11-1547), a vigorous reaffirmation of Chevron deference to agencies' interpretation of ambiguous statutes, including those provisions regarding the scope of the agency's power; McQuiggin v. Perkins (12-126), finding an "actual innocence" exception to AEDPA's one-year statute of limitations; and Trevino v. Thaler (11-10189), expanding an "it was my postconviction lawyer's fault" exception to procedural default in making ineffective assistance of trial counsel claims in a federal habeas petition.

In City of Arlington, Texas v. FCC (11-1545 and 11-1547), foot-dragging by state and local zoning authorities acting on wireless providers' siting applications for network towers and antennas set the stage for the Court to reaffirm Chevron deference to agency interpretation of statutory ambiguities, including ambiguities regarding the scope of the agency's own power.

As amended by the Telecommunications Act of 1996, the Communications Act of 1934 imposes limitations on the authority of state and local governments to regulate the location, construction, and modification of wireless facilities, and empowers the FCC to "prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions." As relevant here, one of the limitations requires state and local governments to act on wireless siting applications "within a reasonable period of time after the request is duly filed." In 2009, in response to a wireless industry petition, the FCC issued a Declaratory Ruling finding evidence of unreasonable delays in siting application decisions, and determining that a "reasonable period of time" under the statute was presumably (but rebuttably) 90 days for applications to add an antennae to an existing tower, and 150 days for all other applications. Two Texas cities petitioned the Fifth Circuit for judicial review. The Fifth Circuit applied Chevron to the threshold question of whether the FCC possessed the statutory authority to adopt the 90- and 150-day timeframes, found that it did, and upheld the presumptive deadlines as a permissible construction of the statute.

The Court agreed, with Justice Scalia writing for the majority, joined by Thomas, Ginsburg, Sotomayor, and Kagan. The cities' cert petition had asked the Court to decide whether "a court should apply Chevron to … and agency's determination of its own jurisdiction." That's where the cities first went wrong in Scalia's eyes. The premise that there are two distinct classes of agency interpretations – ones that define the agency's "jurisdiction" versus everyday decisions that simply apply the agency's jurisdiction – is false. Rather, "[b]ecause the question—whether framed as an incorrect application of agency authority or an assertion of authority not conferred—is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as ‘jurisdictional.'" Scalia eyed those who would distinguish between "jurisdictional" and "nonjurisdictional" agency interpretations with suspicion: "Make no mistake—the ultimate target here is Chevron itself. Savvy challengers of agency action would play the ‘jurisdictional' card in every case." Finally, Scalia criticized the dissent's proposal that all agency decisions be subject to a de novo judicial determination of whether the particular issue was committed to agency discretion. This would invite the thirteen Court of Appeals to make ad hoc judgments regarding congressional intent, which would "render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron."

Justice Breyer concurred with the majority's rejection of the jurisdictional/nonjurisdictional divide, and concurred in the judgment. He wrote separately to express his view that statutory ambiguity, while necessary, is not always sufficient to find that Congress has "left a deference-warranting gap" for the agency to fill. Rather, other factors, such as the agency's expertise and the importance of the question to administration of the statute, should be (and have been) considered in determining whether an agency is entitled to deference in the first place.

The Chief was joined by Justices Kennedy and Alito in dissent. The dissenters dismissed the majority's complaints about the jurisdictional/nonjurisidictional divide as a straw man. The real question was, who decides whether an agency has interpretive authority over a statutory provision: the courts or the agency? In the dissenters' view, the question "must be decided by a court, without deference to the agency." The dissenters returned to the fundamentals, quoting Marbury v. Madison (1803) for the principle that "[i]t is emphatically the province and duty of the judicial department to say what the law is." The growth of the administrative state since that time – "with hundreds of federal agencies poking into every nook and cranny of daily life" – makes it all the more important for courts to exercise this check against agency overreaching.

Next, in McQuiggin v. Perkins (12-126), the Court held 5-4 that a claim of actual innocence may allow a petitioner to overcome the Antiterrorism and Effective Death Penalty Act's ("AEDPA") one-year statute of limitations. This decision follows the Court's rulings in Schlup v. Delo (1995) and House v. Bell (2006), in which actual innocence enabled habeas petitioners to overcome procedural bars, rather than statutory bars, for consideration of their constitutional claims on the merits.

Floyd Perkins was convicted in 1997 of the murder of Rodney Henderson. Key prosecution witnesses testified that Perkins alone committed the murder while Perkins' friend Damarr Jones looked on. Perkins, however, testified that Jones had left him during the evening and that he later saw Jones with blood on his clothing. More than 11 years after his conviction, Perkins filed a federal habeas petition alleging ineffective assistance of counsel at trial and claiming actual innocence. AEDPA gives a state prisoner one year to file a federal habeas petition, starting from "the date on which the judgment became final." 28 U.S.C 2244(d)(1)(A). If the petition alleges newly discovered evidence, the deadline is one year from "the date on which the factual predicate of the claim . . . could have been discovered through . . . due diligence." 28 U.S.C. § 2244(d)(1)(D). To overcome AEDPA's time limitations, Perkins offered newly discovered evidence in the form of three affidavits, all of which pointed to Jones as the murderer. But the most recent of these affidavits was dated July 16, 2002, nearly six years before Perkins' habeas petition was filed. The district court rejected Perkins' petition, finding that he had failed to show diligence entitling him to equitable tolling, and, alternatively, that he failed to show that, taking account of all the evidence, no reasonable juror would have convicted him. The Sixth Circuit reversed, holding that even though Perkins had not diligently pursued his rights, his actual innocence claim allowed him to defeat AEDPA's one-year time limit and present his ineffective assistance claim.

Led by Justice Ginsburg, a majority of the Court agreed that actual innocence could provide a gateway through which a habeas petitioner could pass to have his constitutional claims heard, despite AEDPA's one-year time limit. The gateway's availability was confined to cases in which new evidence showed it was more likely than not that "no reasonable juror" would have convicted the prisoner. Ginsburg explained that the Court had applied this "fundamental miscarriage of justice exception" to overcome certain procedural defaults in order to balance societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice in extraordinary cases. AEDPA's statute of limitations should not eliminate the need to consider the injustice of incarcerating an innocent person. Recognizing the "miscarriage of justice exception" would not render § 2244(d)(1)(D) superfluous, because that section would still apply to cases in which no actual innocence claim is made. The Court also rejected the State's argument that Congress' inclusion of more constrained miscarriage of justice exceptions in other sections of the statute indicated an intent to preclude courts from applying the exception in § 2244(d)(1)(D) cases. Instead, the proper inference to draw from Congress' incorporation of more limited versions of the exception in other provisions is that the full exception remained available in cases not governed by those provisions. That all being said, in deciding whether a reasonable juror would have convicted a person in light of the new evidence, a habeas petitioner's unexplained delay, while not a barrier to relief, should be considered "as a factor in determining whether actual innocence has been reliably shown." Unfortunately for Perkins, the Court held that the district court's determination that his petition was insufficient to meet this actual innocence standard should be dispositive.

Justice Scalia, joined by the Chief and Justices Thomas and Alito, dissented. Scalia reasoned that the "actual innocence" exception had, until the majority's decision, only applied to "judge-made" barriers to relief. The exception had never been applied "to circumvent a categorical statutory bar to relief." The reason, he argued, is because the Court has "no power to do so. Where Congress has erected a constitutionally valid barrier to habeas relief, a court cannot decline to give it effect."

Lastly, Trevino v. Thaler (11-10189) addresses the question of what happens when a state prisoner's postconviction attorney fails to raise ineffective assistance of counsel claims in state habeas proceedings. Can the prisoner still raise those claims in federal habeas proceedings? In another 5-4 decision, the Court held that while the failures of postconviction counsel are generally no excuse, they may excuse procedural default where state law makes it virtually impossible to make an ineffective assistance of trial counsel claim on direct appeal.

Petitioner Trevino was convicted by a Texas jury of murder, and sentenced to death. New counsel was appointed to handle the direct appeal, which was denied. Another counsel was appointed to pursue state habeas relief, which was also denied. Trevino then filed a federal habeas petition, arguing for the first time that his trial counsel was unconstitutionally ineffective during the penalty phase of trial for failing to adequately investigate and present mitigating circumstances about his childhood and medical history that might have averted the death sentence. The District Court stayed proceedings to allow Trevino to raise this claim in state court – which rejected it on the ground that Trevino had procedurally defaulted on the claim by not raising it the first time around on state habeas. The District Court then denied the federal habeas petition because the procedural default was an independent and adequate state ground barring the federal court from considering the ineffective assistance of trial counsel claims. The Fifth Circuit affirmed.

The Court vacated and remanded. Justice Breyer wrote for the majority, joined by Kennedy, Ginsburg, Sotomayor, and Kagan. In line with the deference given to state court decisions in federal habeas cases, the Court has long held that a conviction that rests on a state law procedural default generally rests on "an independent and adequate state ground" precluding the federal habeas court from considering the defendant's federal constitutional claims. A longstanding corollary principle is that negligence on the part of the defendant's postconviction attorney does not qualify as "cause" to excuse the default, since there is no constitutional right to postconviction counsel at all. In last Term's Martinez v. Ryan, however, the Court carved out a narrow exception in cases where state law prohibits defendants from raising ineffective assistance of trial counsel claims on direct appeal. In Martinez, the Court reasoned that since defendants do have a right to counsel on direct appeal, and an appellate counsel's negligence could amount to "cause" excusing a procedural default, the exception was necessary to ensure that defendants in states that channeled initial review of ineffective assistance claims to habeas proceedings were not deprived of review. Trevino asked the Court to take Martinez one step further, to extend the exception beyond states that expressly prohibit direct appellate review of ineffective assistance claims, as Arizona did in Martinez, to states that technically allow it but make it exceedingly difficult in practice, as Texas did in Trevino's case. The Court agreed to take that step, finding that the distinction between the two types of states was a "distinction without a difference." Thus, the holding in Martinez will also apply where a State's procedural framework "by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal." The Court remanded Trevino's case to the Fifth Circuit, for further adjudication on the substance of Trevino's ineffective assistance claims.

The Court's holding engendered two dissents. The first was penned by the Chief, joined by Justice Alito, both of whom had joined the majority in Martinez. The Chief explained that Martinez had recognized only a very narrow, "sharply defined" exception, so as not to upset the longstanding principle of deference to state decisions in federal habeas proceedings. These dissenters feared that the Court's new standard would raise endless questions that would have to be resolved in state-by-state litigation –

"We are not told, for example, how meaningful is meaningful enough, how meaningful-ness is to be measured, how unlikely is highly unlikely is, how often a procedural framework's ‘operation' must be reassessed, or what case qualifies as the ‘typical' case" – frustrating both state sovereignty and finality.

As a dissenter in Martinez, Justice Scalia had written that the line drawn in that case "lacks any principled basis, and will not last." Joined again by Justice Thomas, Scalia penned another dissent here, essentially to say, "told you so."

In addition to these decisions, the Court added the following cases to its docket for next Term:

Lawson v. FMR, LLC (12-3) asks whether an employee of a privately-held contractor or subcontractor of a public company is protected from retaliation under Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, which forbids a publicly traded company, a mutual fund, or "any ... contractor [or] subcontractor ... of such company [to] ... discriminate against an employee in the terms and conditions of employment because of" certain protected activity."

In Northwest, Inc. v. Ginsberg (12-462), petitioner filed suit for, inter alia, breach of the implied covenant of good faith and fair dealing under state law after Northwest Airlines booted him from its frequent flier program. The case asks whether the Ninth Circuit properly held that petitioner's claim was not preempted by the Airline Deregulation Act of 1978 – which includes a provision that States "may not enact or enforce a law, regulation or other provision having the force and effect of law related to a price, route, or service of an air carrier," 49 U.S.C. § 41713(b) – because the claim was categorically unrelated to a price, route or service.

Greece, NY v. Galloway (12-696) asks "[w]hether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity."

Medtronic, Inc. v. Boston Scientific Corp. (12-1128) asks whether a patent licensee seeking a declaratory judgment under Medlmmune, Inc. v. Genentech, Inc. (2007) – in which the Court permitted a patent licensee that believes that its products do not infringe the patent, and accordingly are not subject to royalty payments, to seek a declaratory judgment that the underlying patent is not infringed without first breaking or terminating its license agreement – "has the burden to prove that its products do not infringe the patent, or whether (as is the case in all other patent litigation, including other declaratory judgment actions), the patentee must prove infringement."

Fernandez v. California (12-7822) asks "whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant's previously-stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant."

Rosemond v. United States (12-895) asks "[w]hether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm … or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated."

Mississippi, ex rel. Hood v. Au Optronics Corp. (12-1036) asks "[w]hether a state's parens patriae action is removable as a ‘mass action' under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint."

That's all for now, but by our count, there are still upwards of two dozen decisions to come before the end of the Term, including big ones on affirmative action, Section 5 of the Voting Rights Act, and same sex marriage. Get ready for a busy June!

Kim, Jenny & Julie

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