Publications

Greetings, Court Fans!

And apologies! We’ve been having some difficulties with our email program (and still are; hence the “tdooley” in the “from” line). Fortunately, there hasn’t been too much activity since our last Update, so we should be able to get you caught up to speed below, with summaries of the second and third decisions of the term, as well as news (or what was once news) of a few recent cert grants and other orders.

Like the first decision of the term, Weyerhaeuser Co. v. United States Fish & Wildlife Services (No. 17-71) is a unanimous decision primarily about the interpretation of one phrase in a federal statute, though this time we’ve got a bit of the Administrative Procedure Act to spice things up. The issues before the Court were whether land designated as “critical habitat” under the Endangered Species Act must be “habitat” for the species at issue, and whether courts can review an agency’s decision not to exempt certain areas from a species’ designated critical habitat based on the economic harm to landowners of designating the land. Our deep dive follows, but for those who prefer the shallow end: the answers are yes and yes.

The case begins in 2001, when the U.S. Fish and Wildlife Service designated an amphibian “popularly known as the dusky gopher frog” as endangered. Popularly known among whom, you ask? Not clear: Only four populations of dusky gopher frogs still exist. The frog lives in open-canopy pine forests in the southeastern United States. These open canopies are crucial to the frog’s survival, because they allow vegetation to grow on the forest floor, vegetation that attracts the insects that serve as the frog’s food and provides a safe place for it to lay its eggs. The frog breeds in ephemeral ponds—ponds that are dry for part of the year—where its tadpoles can be protected from predatory fish (who, being fish, tend to prefer more permanent ponds). While this kind of habitat used to be common in Alabama, Mississippi, and Louisiana, it has largely been replaced by urban development, agriculture, and closed-canopy timber plantations. 

When the Fish and Wildlife Service designates a species as endangered, the Endangered Species Act requires it to also designate “critical habitat” for the species. This can include both areas within the geographical range occupied by the species and areas outside the occupied range that the Service concludes are essential to the species’ survival. The Service didn’t get around to designating critical habitat for the dusky gopher frog until 2010, at which time it designated the four ponds with known populations of the frog as well as the surrounding forests. But the Service concluded those areas weren’t enough habitat for the species’ long-term survival, so it also proposed designating a site in Louisiana known as “Unit 1.” The proposed designation of Unit 1 raised two issues. First, while the frogs lived at Unit 1 until the mid-1960s, it has since become a closed-canopy timber planation, a type of terrain not well suited for the frog, because the closed canopy prevents vegetation from growing on the forest floor. But the Service concluded this was not a problem, because the site could be restored to an open canopy with minimal effort. Second, Unit 1 was in the New Orleans metropolitan area, and the owners of the land had an eye toward urban development, an aspiration that would likely (though not certainly) be thwarted by designating it critical habitat for the frog. A provision of the ESA requires the Service, before designating critical habitat, to take into account the economic impact of the designation, and authorizes the Service to exclude an area from critical habitat if it concludes that the benefits of excluding the area outweigh the benefits of designating it. The Service thus commissioned an economic study, which found that the benefits to the frog’s survival from designating Unit 1 outweighed the economic impact on the landowners. Thus, the Service included Unit 1 in its final designation of the frog’s critical habitat.

The landowners challenged the Service’s designation on two grounds. First, they argued Unit 1 couldn’t be “critical habitat” because it wasn’t “habitat” at all: The frog couldn’t live in the closed-canopy forest then occupying the site. Second, they challenged the Service’s method for calculating the costs and benefits (to both the frog and the landowners) of designating Unit 1 and thus the Service’s decision that the benefits of designation outweighed the costs. The Fifth Circuit rejected these arguments. It concluded that nothing in the Endangered Species Act requires “critical habitat” to be habitable, so it was irrelevant whether the frog could survive there. And it found that the Service’s decision not to exclude Unit 1 based on economic considerations was simply unreviewable: Excluding land based on this economic rationale was entrusted entirely to the Secretary of the Interior, with no possible judicial review. The Supreme Court granted certiorari on both issues.

Chief Justice Roberts, writing for a unanimous court, reversed the Fifth Circuit on both points. (Justice Kavanaugh did not participate, because the case was argued before he was confirmed.) Regarding the first issue, the Chief quickly concluded that ordinary rules of grammar require that “critical habitat” be “habitat.” This interpretation was further supported by other provisions of the statute, which were naturally read as limiting critical habitat to habitat. True, the statute expressly allows the Service to designate habitat not presently inhabited by the species in question as critical habitat, but nothing about this freed the Service from making the determination that the land designated as critical habitat be habitable in the first place. Turning to the second issue, the Chief began with the principle that the Administrative Procedure Act creates a “basic presumption” that every agency action can be reviewed in some way by the courts. While the APA creates an exception to this presumption when agency action “is committed to agency discretion by law,” the Court has long read that exception very narrowly, limiting it to a small class of agency decisions that courts could not meaningfully review, such as an agency’s decision about how to allocate its own budget. Here, the agency action being reviewed—its decision not to exclude Unit 1 from the critical habitat designation based on its estimate of the costs and benefits—was the type of thing courts review all the time. So while the Endangered Species Act gives the Service clear discretion in determining whether the exclusion of particular land from critical habitat outweighs the benefits of including it, courts are fully capable of (at least) considering the landowners’ arguments that the Service’s economic analysis was faulty.

Though the Fifth Circuit was reversed on both issues, that doesn’t necessarily mean the dusty gopher frog can never move into Unit 1. The Supreme Court only decided that “critical habitat” must be habitable and that the Fish and Wildlife Service’s cost-benefits analysis is susceptible to judicial review. It remains for the Fifth Circuit on remand to decide whether Unit 1 is potentially habitable (something the parties disputed) and whether the Service’s determination that the benefits of including Unit 1 outweighed the costs was arbitrary and capricious.

The Court continued the trend of narrow, unanimous, statutory-interpretation decisions in United States v. Stitt (No. 17-765), this time answering the age-old question whether the term “burglary” encompasses breaking into “a structure or vehicle that has been adapted or is customarily used for overnight accommodation?” Yes. Yes, it does.

As you might have guessed, Stitt concerns the interpretation of the Armed Career Criminal Act (“ACCA”), a favorite statutory punching bag of the Court, which requires federal judges to impose a 15-year mandatory minimum prison term on certain defendants convicted of unlawfully possessing a firearm. That 15-year sentence is triggered if the offender has three previous convictions for violent or drug-related crimes. The ACCA identifies certain offenses that are “violent” and one of those offenses is “burglary,” which the ACCA does not otherwise define. But words like “burglary” are ambiguous: It might refer to a particular type of crime defined in statute books and usually referred to as “burglary.” Or it might refer to a particular way a specific crime was committed. In Taylor v. United States (1990), the Supreme Court interpreted the ACCA as taking the first approach, commonly referred to as the “categorical approach.” Thus, when a court is called on to decide whether a defendant’s prior conviction counts as “burglary” for purposes of the ACCA, the court must look to the elements of the specific offense the defendant was convicted of violating. If its elements fit the crime of “burglary” as that crime is commonly understood, then the prior offense counts as a “burglary” under the ACCA. But if the elements of the offense don’t necessarily line up with the common understanding of “burglary,” such that the defendant could have been convicted with violating the statute for conduct not generally described as “burglary,” the conviction doesn’t count for ACCA purposes. Crucially, it is the statutory definition (i.e., the elements) of the offense that matters, not the actual facts of the defendant’s conduct.

Stitt involved two ACCA defendants: The first, Mr. Stitt himself, had previously been convicted of violating a Tennessee statute prohibiting “burglary of a habitation.” That statute defines “habitation” as including a “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of entry.” The second defendant, Sims, had a prior conviction for violating an Arkansas statute prohibiting burglary of a “residential occupiable structure.” That term, in turn, is defined to include “a vehicle, building or other structure . . . where any person lives” or that “is customarily used for overnight accommodation for persons whether or not a person is actually present.” The respective district courts that sentenced Stitt and Sims each concluded that these offenses fell within the commonly understood scope of the word “burglary.” But in each of their cases, federal appellate courts (the Sixth and Eighth, respectively) reversed, concluding that these offenses didn’t necessarily meet the common understanding of burglary, because a defendant could be convicted of violating them for breaking into structures that were not traditional residential buildings.

Justice Breyer, writing for a unanimous Court, reversed in one case and remanded in the other. (Noteworthy: This was the first case Justice Kavanaugh participated in, since it was argued just days after he was confirmed.) His analysis turned on a close reading of Taylor. That case not only adopted the categorical approach generally, but it did so in the context of “burglary.” Specifically, Taylor held that the ACCA’s use of the term burglary included “at least the classic common-law definition” of the offense: breaking and entering a dwelling at night with the intent to commit a felony. But Taylor hastened to add that the ACCA’s definition of burglary included more: At the time the ACCA was adopted, most states had expanded their burglary statutes to include breaking and entering a variety of “structures other than dwellings.” Reviewing the Tennessee and Arkansas burglary statutes at issue, the Court concluded that these statutes defined crimes well within the scope of Taylor’s definition of burglary. True, they included breaking and entering into things that were not traditional houses, like mobile homes or converted RVs, but there was no reason why breaking and entering into a structure like that was any less dangerous than breaking into a stand-alone house.

While that was enough to deal with Stitt’s and Sims’s main arguments, it did leave one small issue in Sims’s case.  Arkansas’s residential burglary statute included burglary of “a vehicle . . . in which a person lives,” a definition that arguably would include cars in which a homeless person occasionally sleeps (or so Sims argued). That might be so broad as to fall outside the common understanding of burglary. But whether the Arkansas statute should be interpreted in that way is a question of state law, one the lower court had not considered. So the Court remanded to the Eighth Circuit to consider that wrinkle.

That’s all on the opinions front. In other “news,” since our last Update, the Court has added four more cases to its docket, one of which is rather extraordinary.

In In re Department of Commerce (No. 18-557), the Court has agreed to address the following question: “Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. 701, et seq., a district court may order discovery outside the administrative record to prove the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch Officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.” What makes the decision to review this question extraordinary is that the discovery in question has already taken place in connection with a trial that has already been completed. The case is pending in the Southern District of New York in front of Judge Jesse Furman (who, we hasten to add, began his career at Wiggin and Dana alongside Updater Emerita Kim Rinehart, née Heeney). In it, several states, cities, and advocacy groups have sued the Department of Commerce seeking to enjoin it from adding a question on citizenship to the 2020 census questionnaire. The plaintiffs say that the question is being added for discriminatory purposes and would deter undocumented immigrants from responding to the questionnaire, which could artificially depress the “population” of communities with large numbers of undocumented residents. Although in cases challenging agency decision making the challengers are typically limited to the evidence in the official administrative record, Judge Furman permitted the plaintiffs to seek evidence outside the administrative record, including by taking the depositions of Commerce Secretary Wilbur Ross, and other high ranking officials. The Government did not take kindly to that, as illustrated by the multiple petitions and stay applications that its filed in the case. Of particular note, the QP the Court has now decided to review was initially presented in a mandamus application filed by the Government in October, before the bench trial began. Now that the Court has granted cert, the bench trial is already over and awaiting a decision from Judge Furman. It’s not entirely clear what is the point of reviewing the issue before a decision is made, especially since Judge Furman has indicated that he will disaggregate the record and extra-record evidence so that if a reviewing court ultimately concludes that it was an abuse of discretion to permit extra-record discovery, there will be no need for a new trial. Suffice it to say, this one’s a bit of a head-scratcher (and we haven’t even gotten into the several other rounds of stay applications and “hold” requests that have transpired both before and after the trial in this case), but if it ultimately results in an opinion, we’ll do our best to explain it all then.

The second new case on the Court’s docket is a little more straight-forward (though that’s not saying much). In Cochise Consultancy Inc. v. United States, ex rel. Hunt (No. 18-315), the Court will decide “whether a relator in a False Claims Act qui tam action may rely on the statute of limitation in 31 U.S.C. 3731(b)(2) in a suit in which the United States has declined to intervene and, if so, whether the relator constitutes an ‘official of the United States’ for purposes of that Section 3731(b)(2).”

The third new case is definitely the most boring. Dutra Group v. Batterton (No. 18-266) asks whether punitive damages are available under the Jones Act—a federal law regulating maritime commerce in the United States—in a case where injured seamen have brought a personal-injury suit alleging that their employer breached the general duty to provide a seaworthy vessel.

But the Court rebounded this week with its fourth new grant: Kisor v. Wilkie (No. 18-15) is a potential blockbuster (at least for admin-law types) asking whether the Court should overrule Auer v. Robbins (1997) and Bowles v. Seminole Rock & Sand Co. (1945), which direct courts to defer to agencies’ reasonable interpretations of their own ambiguous regulations. The Court has declined the invitation to overrule the Auer doctrine several times over the years, but with two new justices (including feared enemy-of-the-administrative-state Justice Gorsuch), the time may be nigh.

Finally, there were two notable cert denials since our last missive. Earlier this week, the Court denied cert in Gee v. Planned Parenthood (No. 17-1492) and Andersen v. Planned Parenthood (No. 17-1340), two cases raising the issue of whether Medicaid recipients have a private right of action to challenge a State’s determination of “qualified” Medicaid providers under a provision of the Medicaid Act that allows recipients to receive care from any provider willing and qualified to provide services. The denial drew a strongly worded dissent from Justice Thomas, joined by Alito and Gorsuch, who pointed out that the circuits are divided on this question, which has substantial implications both for the 70 million Americans who receive Medicaid benefits and for the States, who (under the majority rule in the circuits) may face lawsuits for changing, removing, or failing to enlist otherwise willing and qualified providers. Justice Thomas accused the Court of ducking the question because “some respondents in these cases are named ‘Planned Parenthood.’” (Although the cases have nothing to do with abortion, per se, these particular lawsuits arose after some States sought to remove Planned Parenthood providers from their Medicaid rolls, claiming that the organization and its affiliates were engaged in “illegal sale of fetal organs” and “fraudulent billing practices.”) To Thomas, “[s]ome tenuous connection to a politically fraught issue does not justify abdicating [the Court’s] judicial duty.”

The Court also denied cert in Stuart v. Alabama (No. 17-1676), which concerned whether it is permissible introduce lab reports on blood alcohol levels into evidence without the testimony of the particular scientist who signed the report. Justice Gorsuch dissented from the denial, joined by an interesting partner, Justice Sotomayor. Writing for the pair, Justice Gorsuch Gorsuch argued that it violates the Sixth Amendment’s Confrontation Clause to allow a lab report to be introduced into evidence without permitting the defendant to cross-examine the actual scientist who prepared it. But he acknowledged that the state of the law in this area is confusing as a result of the Court’s decision in Williams v. Illinois (2012), which commanded no majority opinion. Gorsuch urged the Court to take up this question again to provide the lower courts with “more clarity than we have afforded them in this area.”

That’s about enough for this catch-up installment. Thanks for reading, and thanks for your patience. We’ll keep working on the email issues (and by “we,” of course we mean “someone else”) and try to get on a more regular schedule going forward.

Tadhg and Dave