Supreme Court Update: FCC v. AT&T Inc. (09-1279), Milner v. Department of the Navy (09-1163) and Pepper v. United States (09-6822)

March 15, 2011 Supreme Court Update

Greetings, Court fans!

As promised, we continue to work our way through the backlog of decisions. This Update will cover two cases relating to the Freedom of Information Act, FCC v. AT&T Inc. (09-1279) and Milner v. Department of the Navy (09-1163), as well as Pepper v. United States (09-6822), an important criminal decision holding that courts may consider evidence of a defendant's post-sentencing rehabilitation when resentencing a defendant after an appeal.

Continuing its trend of relative unanimity (and decisions issued without Justice Kagan's participation), the Court ruled 8-0 in FCC v. AT&T Inc. (09-1279) that corporations do not have "personal privacy" and thus cannot take advantage of FOIA's Exemption 7(C), which exempts from disclosure law enforcement records which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Chief Justice Roberts wrote the Court's relatively brief and quite humorous decision, based almost entirely on dictionary definitions and common sense.

AT&T's argument, which the Third Circuit had accepted, went like this: FOIA defines the noun "person" as including corporations. Therefore, "personally," which is the adjectival form of "person," must be construed to apply to corporations. The Court wasn't buying it. First, adjectives do not always reflect the meaning of corresponding nouns and can take on distinct meanings (leading the Court to cite such amusing examples as "corn" and "corny" and "crab" and "crabbed"). Here, the word "personal" has a distinct ordinary meaning that that is unique to humans and is not related to the legal definition of "person" in FOIA. Indeed, the word "personal" is often used in common speech to mean the opposite of business-related, so it would be very strange to apply it to fictional business entities. Second, the word "personal" does not stand in isolation, but is coupled with the "privacy." Together, the phrase "personal privacy" has a special connotation "evocative of human concerns." Third, this construction is buttressed by the fact that Exemption 6, which covers personnel and medical records (an exemption clearly aimed only at humans) speaks in terms of "personal privacy," while Exemption 4, which protects trade secrets and commercial or financial information, is aimed at corporations. The fact that Exemption 7(C) mirrors the language of Exemption 6 and contrasts with the language of Exemption 4 further supports the conclusion that Exemption 7(C) applies only to natural persons. As the Court concluded: "We trust that AT&T will not take it personally."

In Milner v. Department of the Navy, the Court turned to FOIA's Exemption 2, which protects from disclosure material that is "related solely to the internal personnel rules and practices of an agency." The Navy invoked Exemption 2 to withhold information about munitions stored at a base in Puget Sound, specifically, Explosive Safety Quantity Distance ("ESQD") information prescribing minimum separation distances to prevent chain reactions in case of detonation. Justice Kagan, getting into the action, led the Court as it held, 8-1, that Exemption 2 covers only human resources-type materials. The Court thereby rejected a thirty-year-old D.C. Circuit decision interpreting Exemption 2 to reach any "predominantly internal" materials whose disclosure would significantly risk circumvention of agency regulations or statues. Beginning with the text of Exemption 2, the Court observed that the key term "personnel" clearly refers to human resources matters. Indeed, Exemption 6 (making another guest appearance) refers to "personnel" files as a type of file "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Exemption 2 also makes clear that the material must relate "solely" to such personnel rules and practices. The broader interpretation developed by the D.C. Circuit and espoused by the Government found no support in the text. It also cut against FOIA's goal of broad disclosure. The legislative history offered conflicting accounts at best, and was not persuasive in light of the clear statutory text. The Court rejected the Government's proposal to interpret Exemption 2 to cover an agency's internal rules and practices for its personnel to follow. Because agencies necessarily operate through personnel, that interpretation would sweep in all internal rules and practices, "engulf" other exemptions, and turn FOIA into a withholding statute, rather than a disclosure statute.

The Court acknowledged that its decision "upsets three decades of agency practice" relying on the D.C. Circuit's broader interpretation, and therefore "may force considerable adjustments." The Court noted, however, that the Government had other tools to shield national security information and other sensitive materials, including Exemption 1 for classified documents (including those classified after a FOIA request), and Exemption 7 for certain "information compiled for law enforcement purposes." The Government had argued below that the ESQD information requested fell within Exemption 7, and that claim remained open on remand. In a concurring opinion, Justice Alito suggested that the ESQD information should "fall comfortably" within Exemption 7 so long as the Government could show that it was compiled at any time to prevent crimes of terrorism and to maintain security. In Justice Alito's view, Exemption 7's protection for records compiled for "law enforcement purposes" covers not just investigation and prosecution files, but also information necessary for crime prevention and security measures.

Justice Breyer was the lone dissenter. He would continue to apply the D.C. Circuit's interpretation of Exemption 2 as the settled law. Even though the majority's analysis might have persuaded him if written on a "blank slate," he found the D.C. Circuit's interpretation to be reasonable, in light of legislative history describing the exemption as protecting agency "operating rules, guidelines, and manuals of procedure," and considering the need to achieve a "workable balance" between the public's interest to greater access and the needs of the Government to protect certain kinds of information.

You have really got to feel for Jason Pepper, the long-suffering defendant in Pepper v. United States. No doubt he's made mistakes in life. In 2003, he was charged with conspiracy to distribute methamphetamine. He pleaded guilty and was sentenced to 24 months in prison, but served the time and apparently became a model citizen. But the Government kept on trying to send him back to prison with a longer sentence (his Guidelines range put him at 97 to 121 months). On the Government's first appeal, the Eighth Circuit reversed and remanded for resentencing. By the time of resentencing, Pepper had been out on supervised release for nearly a year. Pepper testified that he was now drug free, had enrolled in community college full-time and earned all A's, and was working part time. The court re-imposed the 24-month sentence, based on a 40 percent downward departure for substantial assistance, and another 59 percent downward variance for, among other things, Pepper's rehabilitation since his initial sentencing. The Government appealed a second time, and the Eighth Circuit reversed again. The Eighth Circuit held that the sentencing court erred in considering Pepper's post-sentencing rehabilitation because the court could not have considered such evidence at the original sentencing. At this point, the Court got involved for the first time. It granted Pepper's petition, vacated the judgment, and remanded the case for further consideration in light of Gall v. United States (2008), which held that it is "not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable." But Gall did not change the Eighth Circuit's view that post-sentence rehabilitation could not be considered, and they sent Pepper back for resentencing before a new judge. Pepper informed the court that he was still in school, advancing at his job, and was newly married and supporting his wife and stepdaughter. The new judge refused to consider this evidence, gave Pepper only a 20 percent downward departure for substantial assistance, and another small variance, resulting in a 65-month sentence, which the Eighth Circuit affirmed. Pepper was sent back to prison after the resentencing and released only after the Court granted cert.

Two questions were before the Court: (1) whether a district court may consider evidence of post-sentencing rehabilitation when resentencing a defendant after an appeal; and (2) whether the new judge was required, under the law of the case, to give Pepper the same 40 percent departure for substantial assistance that the previous judge gave him. The Court answered the second question, 8-0: No. The Court readily held that when a Court of Appeals sets aside a sentence in its entirety and remands for a de novo resentencing – as the Eighth Circuit did here – it "wipe[s] the slate clean."

The first question took a bit more doing. First, the Court had to appoint amicus to argue the case against Pepper because the Government had had a change of heart and confessed that the Eighth Circuit was wrong. Amicus argued that 18 U.S.C. § 3742(g)(2) barred a resentencing court from imposing a sentence outside the applicable Guidelines range except upon a ground that had been included in the initial sentencing and had been held by the court of appeals to be a permissible ground of departure. Justice Sotomayor, joined by Roberts, Scalia, Kennedy, and Ginsburg, agreed with amicus' reading of § 3742(g)(2), but found it to be unconstitutional after United States v. Booker (2005). Section 3742(g)(2) effectively required district courts to treat the Guidelines as mandatory in all remanded cases, contrary to Booker's instruction that the Guidelines were to be advisory only. Amicus also pointed to the Sentencing Commission's policy statement that courts should not consider evidence of post-sentencing rehabilitation. The Commission reasoned, inter alia, that doing so would inequitably benefit only those who had the opportunity to be resentenced de novo. The Court was not persuaded. The procedural fact that some defendants are sentenced in error and must be resentenced did not create "unwarranted" sentencing disparities. And since there was no doubt that courts could and did impose harsher sentences based on bad post-conviction conduct, it was only fair that defendants be allowed to benefit from good post-conviction conduct. The Court also stressed that in creating the Guidelines scheme, Congress expressly preserved the traditional discretion of sentencing courts to consider the widest possible breadth of information about a defendant, which should include post-sentencing rehabilitation if the case warranted. The Court remanded the case for resentencing again. Let's hope that Pepper has stayed on the straight and narrow, his long legal ordeal notwithstanding.

Justice Breyer concurred in the judgment. He agreed that 18 U.S.C. § 3742(g)(2) was unconstitutional under Booker, and that sentencing courts did not have to follow the Guidelines policy statement on post-sentencing rehabilitation. He rejected the majority's analysis, however, to the extent that it supported "individualized sentencing" or suggested that Booker gave sentencing judges carte blanche to apply or not apply the Guidelines at whim. Rather, he would find that it was reasonable for a judge to reject the specific Guidelines policy in question because it ran counter to the Guidelines' general policy of permitting departures in non-typical cases, and because the Commission's reasons for taking such a hard line on post-sentencing rehabilitation were not persuasive. Justice Alito also concurred in the judgment along similar lines, and dissented to the extent that language in the majority opinion seemed to praise a pre-Guidelines regime. Justice Thomas dissented, based on his continuing disagreement with Booker. He would treat the Guidelines as mandatory except in cases where they increased a sentence based on facts not found by a jury, which was not the case here. Thomas explained that although sending Pepper back to prison "would not represent [his] own policy choice," he felt bound by the choices made by Congress and the Sentencing Commission.

We'll be back shortly with the last installment of cases from the past couple weeks. Until then, as always, thanks for reading!

Kim and Jenny

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