Supreme Court Update: U.S. Army Corps of Engineers v. Hawkes (15-290), Johnson v. Lee (15-789), Lynch v. Arizona (15-8366) and Order List

June 6, 2016 Supreme Court Update

Greetings, Court Fans!

As we settle into June, the Eight seem to be clearing out the less difficult decisions in preparation for what could be a messy end to the term, given some controversial issues (abortion, affirmative action, immigration) and the lack of a tie-breaking vote to decide them. This morning, the Court issued two unanimous decisions arising out of the prison context: Ross v. Blake (15-339), holding that the Fourth Circuit went too far in crafting a "special circumstances" exception to the Prison Litigation Reform Act's administrative-exhaustion requirement, and Simmons v. Himmelreich (15-109), holding that the Federal Tort Claims Act's "judgment bar" provision does not apply to claims dismissed for falling within one of the enumerated "Exceptions" to the FTCA. We'll have summaries of those decisions for you tout de suite.

The Court also set three new cases for argument next term, to go along with one from last week. Scroll down for the questions presented. But first, we've got summaries of the three decisions handed down last week.

In U.S. Army Corps of Engineers v. Hawkes (15-290), the Court unanimously held that a jurisdictional determination by the Corps of Engineers that property contains "waters of the United States" is a final agency action judicially reviewable under the Administrative Procedure Act ("APA").

The Clean Water Act regulates the discharge of pollutants into "the waters of the United States." When property contains such waters, landowners must get a permit from the Corps of Engineers in order to discharge pollutants or else risk substantial criminal and civil penalties. The Hawkes Company applied for a permit in order to mine peat on a 530-acre parcel of land, but it quickly realized that the permitting process is long and expensive. Because the process is so onerous, the Corps allows property owners to obtain a standalone "jurisdictional determination" (JD) specifying whether a particular property in fact contains "waters of the United States." An "approved" JD is an administratively appealable "final agency action" and is binding for five years on the Corps and the EPA. Hawkes received an approved JD concluding that its tract contained "water of the United States" because wetlands on the property had a "significant nexus" to the Red River of the North, located 120 miles away.

Hawkes sought judicial review of the JD under the Administrative Procedure Act, but the District Court dismissed for want of jurisdiction, holding that there had been no final agency action for which there is no other adequate remedy in a court, as required by the APA prior to judicial review. The Eighth Circuit reversed and the Supreme Court affirmed.

Writing for eight, Chief Justice Roberts applied the test of Bennett v. Spear (1997), which held that two conditions must be satisfied for an agency action to be "final" under the APA: First, it must mark the consummation of the agency's decision-making process; second, it must be one by which rights or obligations have been determined, or from which legal consequences will flow. Even the Corps agreed that the first Bennett condition was satisfied. And the second Bennett prong is satisfied because the definitive nature of approved JDs gives rise to "direct and appreciable legal consequences." In particular, under a longstanding Memorandum of Agreement between the Corps and the Environmental Protection Agency, an approved JD is binding not only on the Corps, but also the EPA, creating a five-year safe harbor from civil-enforcement proceedings. The Court rejected the Corps' proposed alternatives to judicial review, concluding that parties should not have to go through the entire permitting process or risk an enforcement action in order to challenge the original jurisdictional determination.

Though all eight justices joined the judgment, the case engendered three separate concurrences. Justice Kennedy, joined by Alito and Thomas, concurred in full, but wrote separately to observe that, notwithstanding the Court's decision, "the [Clean Water] Act, especially without the JD procedure were the Government permitted to foreclose it, continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property throughout the Nation." Justice Ginsburg concurred in part, penning a separate opinion to note that the Court need not have relied on the Memorandum of Agreement between the Corps and the EPA to arrive at its conclusion. In contrast, Justice Kagan, fully concurring, wrote separately to argue that it "is central to the disposition of this case." In Kagan's view, the safe harbor created by the Memorandum constitutes a "direct and appreciable consequence" satisfying the second prong of the Bennett test; for Ginsburg, because the particular JD at issue in this case was clearly definitive, there was no reason to address the Memorandum, on which there had been limited briefing.

Hawkes was the only signed opinion last week, but the Court also issued two per curium decisions. In Johnson v. Lee (15-789), the Court summarily reversed a Ninth Circuit decision holding that a California rule prohibiting habeas petitioners from raising claims that were available on direct appeal for the first time on collateral review is an inadequate bar to federal habeas review. Federal habeas courts generally refuse to hear claims that were rejected in state court pursuant to an independent and adequate state procedural rule. California (like all states) requires criminal defendants to raise available claims on direct appeal. Here, the Supreme Court held that California's procedural bar, which is longstanding, oft-cited, and shared by habeas courts across the Nation, is "firmly established and regularly followed" and therefore constitutes an independent and adequate state procedural rule.

Next up, in Lynch v. Arizona (15-8366), the Court reiterated its holding in Simmons v. South Carolina (1994) that, "where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available is life imprisonment without possibility of parole," the Due Process Clause "entitles the defendant ‘to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel." Here, though the State put Lynch's future dangerousness at issue, the trial court ruled that he could not inform the jury that he was parole ineligible. Though Arizona had argued that Simmons applies only where there is legally no possibility of parole, the Court held that a defendant must be permitted to inform the jury of his parole ineligibility under current law, even though he could be released through executive clemency or a change in the law on parole.

Justice Thomas, joined by Alito, dissented. In their view, the Court erred originally in Simmons, where it overstated the importance of parole eligibility in a jury's death-sentence determination. Here, as in Simmons, "it is the sheer depravity of the defendant's crimes, rather than any specific fear for the future, which induced the jury to conclude that the death penalty was justice."

The Court has also finally started setting new cases for argument next term, after a long drought. Even so, there are currently only sixteen cases on the calendar for OT16, which is a bit behind pace for this time of year.

This morning, the Court noted jurisdiction (the equivalent of granting cert in redistricting cases directly appealed from three-judge district courts) in Bethune-Hill v. Va. Bd. of Elections (15-680), which asks whether the three-judge court erred in (1) holding that race cannot predominate unless it results in "actual conflict" with traditional districting criteria, even where race is the most important consideration in drawing a given district; (2) concluding that the use of a one-size-fits-all 55% black voting age population floor to draw twelve separate districts does not amount to racial predominance, triggering strict scrutiny; (3) disregarding the admitted use of race in drawing district lines in favor of examining circumstantial evidence regarding the contours of the districts; (4) holding that racial goals must negate all other districting criteria in order for race to predominate; and (5) concluding that the Virginia General Assembly's predominant use of race in drawing a particular district was narrowly tailored to serve a compelling government interest.

The Court also granted cert in two cases touching on the death penalty:

Moore v. Texas (15-797) asks (1) whether the use of outdated medical standards on intellectual disability in determining whether an individual may be executed violates the Eighth Amendment and (2) whether the execution of a condemned individual more than 35 years after the imposition of a death sentence violates the Eighth Amendment.

Buck v. Stephens (15-8049), another capital case, asks whether the Fifth Circuit imposed an unduly burdensome standard for obtaining a Certificate of Appealability (COA) when it denied a COA in a case where the petitioner claimed his counsel was ineffective for knowingly presenting an "expert" who testified that the petitioner was more likely to be dangerous in the future because he is Black.

The Court's grant in Moore, which dances around the margins of the death-penalty debate, is notable because last week the Court denied review in Tucker v. Louisiana (15-946), a case that had taken up the invitation in Justice Breyer's Glossip v. Gross dissent last term to bring a renewed challenge to the constitutionality of the death penalty itself. Justice Breyer, along with Justice Ginsburg, dissented from the denial Tucker and again argued that the Court should consider "whether imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."

Finally, the Court granted cert last week in State Farm Fire & Casualty Co. v. United States (15-1513), which asks what standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's requirement that complaints initially be filed under seal.

That'll do it for now, but don't stray too far. The Court has scheduled another announcement day for Thursday, so you'll be hearing from us soon.