Greetings Court fans!

 

As of today, the Court has handed down all of its opinions for the Term, so I have a lot of work to do. I’ll break up your reading (and my writing!) into a few emails over the next few days, but will in any event, have you up to date on all the latest news by the end of the week.

 
I’ll begin with Cheney v. United States District Court for the District of Columbia (03-475). Although this case generated a lot of sparks this Term (remember Scalia’s recusal opinion?), it ended up being something of a dud. This case began when the Sierra Club and Judicial Watch filed suit claiming that the President’s energy task force had violated various procedural and disclosure requirements of the Federal Advisory Committee Act (FACA), an act that imposes certain open-meeting and disclosure requirements on advisory committees. One of the key issues was thus whether the task force met the statutory definition of “advisory committee.” To resolve this question, the district court authorized discovery into the membership and structure of the task force, but expressly noted that the government could assert executive privilege to protect sensitive materials from discovery. The government asked the Court of Appeals to issue a writ of mandamus to vacate the discovery orders, but that court refused, holding that a writ of mandamus was inappropriate because alternative grounds of relief were available. Specifically, the appellate court held that the government should have made particularized claims of privilege in response to the discovery orders before seeking a writ of mandamus. The Supreme Court (opinion by Kennedy, joined by the Chief, Stevens, O’Connor, and Breyer, and partially by Thomas and Scalia) reversed. The first part of the opinion is not that interesting (whether the government’s request for mandamus was filed too late), so I’ll just note the holding — it was not — and move on.
 
The central question here was whether the Court of Appeals properly concluded that it had no authority to issue a writ of mandamus because the government could protect its rights by asserting executive privilege in the district court. According to Kennedy, the Court of Appeals had an unduly cramped view of its own authority. While mindful of the strict standards for issuance of a writ of mandamus, the Court of Appeals should have considered those standards with an eye to the separation-of-powers concerns present when a district court’s discovery orders seek to obtain potentially sensitive materials from the Vice President. The lower court’s decision was based on its understanding of United States v. Nixon (1974), but according to Kennedy, the court overlooked fundamental differences between that case and the present facts. While this case concerns request for information from the executive in a civil suit, Nixon involved the proper balance between the executive interest in confidentiality and the production of evidence for a criminal proceeding. The distinction between criminal and civil proceedings is crucial, especially in light of the weighty public interests in procuring all relevant evidence for the criminal justice system. Moreover, the narrow subpoenas at issue in Nixon contrast sharply with the overly broad discovery requests approved by the district court in this case. In light of these (and other) considerations arising from the separation of powers concerns that dominate this case, the lower courts should have considered other options (such as limiting the discovery requests themselves) before telling the executive branch that it had to invoke executive privilege to protect its rights. Kennedy concludes by remanding the case to the Court of Appeals for reconsideration of the petition for writ of mandamus under the appropriate standard, i.e., with appropriate weight given to the separation of powers issues.
 
Stevens concurred to explain that it’s appropriate to require the Sierra Club and Judicial Watch to assume a heavy burden of persuasion before any discovery is allowed. This is true, according to Stevens, because while their requested discovery was ostensibly only about the threshold issue of whether the task force was an “advisory committee,” as a practical matter, it requested the very records to which they would be entitled if they won their lawsuit. In other words, the granting of their request would effectively prejudge the merits of the suit. Thomas (joined by Scalia) concurred in part and dissented in part. For Thomas, the key to this case was that the Sierra Club and Judicial Watch had sought a writ of mandamus themselves in the district court. To obtain this relief, they had to prove that they were indisputably entitled to the documents. If they could not meet this standard, then the government — seeking a writ of mandamus from the appellate court — was clearly entitled to a writ to prevent the discovery. Because Thomas believes that it was not clear that the respondents were entitled to mandamus relief in the district court, he would remand with instructions to the Court of Appeals to issue the writ of mandamus. Ginsburg (joined by Souter) dissented. She believes the government never asked the district court to narrow discovery but rather merely argued that all discovery was objectionable. Because the government failed to avail itself of the opportunity to protect itself by asking for narrowed discovery requests, and because a writ of mandamus should not issue except when the requester has no other way to protect itself, the appellate court properly refused to issue the writ.
 
Next, I’ll touch briefly on Rumsfeld v. Padilla (03-1027). Padilla is the so-called “dirty bomber,” who was picked up on a material witness warrant when he got off a plane at Chicago’s O’Hare airport. He was flown to New York, but before a federal court in New York could resolve his challenge to the material witness warrant, the President ordered him detained as an “enemy combatant.” Military authorities spirited him away to South Carolina where he has been held at a Navy brig ever since. After Padilla was moved to South Carolina, his lawyer filed a habeas petition in the Southern District of New York to challenge the lawfulness of his detention as an enemy combatant. The government argued that the habeas petition should have been filed in South Carolina, and that in any event, his detention was proper. The Supreme Court never reached the latter issue because it concluded that the habeas petition should have been filed in South Carolina. The Chief (joined by O’Connor, Scalia, Kennedy and Thomas) held that in accord with the statutory language and longstanding practice, the proper respondent in a habeas petition challenging physical confinement is the warden of the facility where the prisoner is being held. In this case, that rule means that Commander Marr (commander of the Naval brig where Padilla is being held) is the proper respondent. The Chief rejected Padilla’s arguments that the Court should create an exception to this “immediate custodian” rule on the facts of this case. Next, the Court held that the habeas statute requires, generally, that habeas petitions challenging physical confinement be filed in the district of confinement. It does not allow, as argued by Padilla, for petitions to be filed in any jurisdiction where the respondent is amenable to service of process. Under this rule then, Padilla’s habeas petition should have been filed in South Carolina. Kennedy (joined by O’Connor) concurred to emphasize that he believes the rules on the proper location for a habeas petition are best understood as matters of personal jurisdiction or venue. Stevens (joined by Souter, Ginsburg and Breyer) dissented. He acknowledges that there are general rules governing the proper location for habeas petitions, but believes that those rules are subject to numerous exceptions. According to Stevens, an exception should apply here to allow the New York courts to consider Padilla’s petition.
 
I’ll sign off for now and bring you the rest of this week’s news in later emails. Until then, thanks for reading!

 

Sandy

 

 

 

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin at 203-498-4400, or visit our website at www.wiggin.com.