Greetings Court fans!
Sorry for the delay in getting this out to you, but three deadlines (including one in Illinois, where the courts remain open even on this National Day of Mourning — have they no respect for the dead!?) conspired against me. The Court issued four opinions this week (but none of the blockbusters) and a few miscellaneous items.
In honor of my former colleagues at the Department of Justice, I’ll begin with the Mexican trucking case, a unanimous decision for the government, Department of Transportation v. Public Citizen (03-358). This case has a rather complicated statutory background, so I’ll simplify ruthlessly. The National Environmental Policy Act (NEPA) requires agencies to prepare an environmental impact statement (EIS) for any proposed action that will have major effects on the environment, and the Clean Air Act (CAA) requires federal agencies to “conform” their actions to state plans that implement the CAA. In this case, the question is whether the Department of Transportation should have prepared an EIS and conducted a CAA conformity analysis when it issued regulations to govern the operation of Mexican trucks in the United States. For many years, as the result of concerns about the adequacy of Mexico’s regulation of motor carrier safety, a Presidential moratorium prevented Mexican motor carriers from obtaining authority to operate in the US. After Mexico complained about this state of affairs, the President agreed to lift the moratorium once Transportation issued new regulations to govern Mexican trucks. Congress subsequently provided that Transportation could not expend funds to process Mexican truck applications until it adopted regulations to govern their operation. So Transportation got busy drafting regulations. It decided not to prepare an EIS for the regulations because the likely effects of the regulations, primarily those arising from increased roadside inspections of Mexican trucks, were minor, and further decided not to perform a “conformity review” because the increase in emissions from these effects were below the threshold that would trigger such a review. Environmental groups challenged these decisions claiming that Transportation should have considered the environmental impact of increased cross-border traffic from Mexican trucks that would result from the promulgation of the regulations.
Thomas (for a unanimous Court) upheld Transportation’s decisions. The basic question presented by this case is whether the increase in cross-border operation of Mexican trucks (with the correlative increase in emissions) is an “effect” of the regulations. Thomas said no. Even though Mexican trucks couldn’t operate in the US until Transportation issued its regulations, Transportation had no statutory way to prevent this effect. Under the relevant law, Transportation is required to issue operating permits for any carrier that meets its safety and financial responsibility requirements. Thus, although the regulations were a “but for” cause of the increased cross-border traffic, Transportation had no authority to prevent that effect. Since Transportation had no authority to prevent the purported effect of the regulations, an EIS would serve no purpose under NEPA. In sum, “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ’cause’ of the effect.” For basically the same reason, Transportation did not have to conduct a conformity analysis under the CAA. Transportation had no ability to control any increase in emissions from increased cross-border traffic and thus those emissions did not require Transportation to conduct a conformity analysis.
From Mexican trucks to ERISA. In Central Laborers’ Pension Fund v. Heinz (02-891), the Court considered ERISA’s “anti-cutback” rule, a rule that prohibits amendments to pension plans that would reduce a participant’s accrued benefits. Heinz qualified for early retirement under a defined benefit plan. His benefits, however, were subject to suspension if he worked in certain types of jobs (non supervisory construction work) after he retired. Heinz began collecting his benefits and took a job as a construction supervisor that was consistent with the conditions of his retirement plan. Two years later, however, the plan expanded the types of employment that would trigger suspension of benefits, and because this expanded definition of “disqualifying employment” covered his job, the plan stopped paying benefits. The question in this case is whether the plan’s amendment violates the anti-cutback rule. Souter, for a unanimous Court, answered yes. (The opinion reads more like a Chief opinion than a Souter opinion, however — the actual analysis runs for only 2 pages, including a lengthy block quote from a treatise.) The analysis boils down to common sense: An employee’s benefits can’t be understood without reference to the conditions on those benefits, and an amendment that places greater restrictions on the receipt of the benefit reduces the benefit. That’s it. The rest of the opinion rejects some of the plan’s arguments based on the technical language of ERISA, and then notes that the Court’s holding is consistent with a regulation adopted by the IRS. Never mind that the IRS has actually been inconsistent on this point; its most authoritative statement is in its regulations which are consistent with the Court’s holding. Breyer (joined by the Chief, O’Connor and Ginsburg) concurred to note that the IRS or the Dept. of Labor could issue regulations to explicitly allow the type of amendment at issue here.
Still with me after that ERISA case? Next, the Court decided City of Littleton v. Z.J. Gifts D-4 (02-1609), a First Amendment case that, like many First Amendment cases, involves the government’s attempt to regulate sex. Littleton has an “adult business” licensing ordinance, and the question here is whether that ordinance contains procedural protections sufficient to avoid any First Amendment problems. In Freedman v. Maryland (1965), the Court held that a motion picture censorship statute must contain specific procedural protections to avoid invalidation under the First Amendment, including, as relevant here, a procedure that assures a “prompt final judicial decision” reviewing any censorship imposed under the statute. In 1990, in FW/PBS v. Dallas, the Court held that these procedural protections were also required for adult business licensing schemes, although language in the plurality opinion could be read to suggest that the licensing scheme only required “prompt access” to judicial review, not a prompt decision. Littleton, predictably, argued in reliance on FW/PBS that it need only provide prompt access to judicial review, but the Court (Breyer, joined by Rehnquist, O’Connor, Thomas and Ginsburg) rejected that interpretation of its cases. The point of the judicial review safeguard is to prevent undue delay that might suppress protected speech and so prompt judicial decisions are required. The Court agreed with Littleton, however, that an adult business licensing scheme does not need special judicial review rules to achieve this goal. The State’s ordinary judicial review procedures should suffice, so long as the courts remain cognizant of the need to prevent First Amendment harms.
Stevens filed an opinion concurring in part and concurring in the judgment. He is afraid the Court’s opinion conflates the problems presented by a censorship scheme with those presented by a licensing scheme. Souter (joined by Kennedy) concurred in part and concurred in the judgment. He agreed that prompt judicial decision is required, but wrote separately to emphasize that state courts need to make sure they issue prompt decisions in these cases. Scalia concurred in the judgment. He doesn’t think the First Amendment protects the pandering of sex, and thus he doesn’t think Littleton’s licensing scheme has to pass First Amendment muster.
In the final opinion, Republic of Austria v. Altmann (03-13), the Court grappled with the Austrian government’s claim of immunity for its role in the expropriation of art from Altmann’s family during or immediately after World War II. The Austrian Government claimed that in 1948, when the alleged wrongdoing took place, it would have enjoyed absolute immunity from suit in US courts and that the Foreign Sovereign Immunities Act (FSIA), adopted in 1976, did nothing to change that conclusion. The lower courts rejected Austria’s immunity defense, holding that the FSIA applies to this case, and the Court (opinion by Stevens, joined by O’Connor, Scalia, Souter, Ginsburg and Breyer) affirmed. Beginning in the good old days of Chief Justice Marshall, foreign sovereign immunity was a matter of grace and comity, with courts typically deferring to the views of the Executive Branch on whether to grant immunity in specific cases. Before 1952, the Executive Branch requested immunity in all actions against friendly sovereigns, but in that year, adopted the “restrictive theory” of sovereign immunity: immunity is recognized for sovereign or public acts, but not for private acts. This new policy still required foreign sovereigns to go through the Executive Branch, however, so it had little practical impact on the federal courts’ approach to immunity questions. Then, in 1976, in an effort to impose some order on immunity determinations, Congress passed the FSIA. FSIA sets standards for immunity determinations, enshrines the “restrictive theory” as a matter of statute, and transfers decisionmaking responsibility on the question from the Executive to the Judicial Branch. It also grants federal courts jurisdiction over suits against foreign sovereigns in which the sovereign does not have immunity. As relevant to this case, the FSIA provides that foreign sovereigns are not immune for actions involving “rights in property taken in violation of international law.” The question here is whether the FSIA applies to conduct that occurred prior to the enactment of the FSIA and prior to the State Department’s adoption of the “restrictive theory” of immunity.
This is a retroactivity question, so Stevens examines the Court’s central retroactivity case, Landgraf, in detail. The default rule established in that case (if a statute does not expressly prescribe its temporal reach, but operates retroactively, it does not so govern absent a clear congressional statement favoring that result), however, does not provide a clear answer here. (I’ll spare you the details on this analysis.) So, with no clear answer from a Landgraf analysis, the Court looks to the FSIA itself and concludes that there is nothing in that statute that would suggest it should not be applied to Austria’s 1948 actions. Indeed, there are several suggestions in the statute that Congress intended the statute to apply to pre-enactment conduct. For example, the preamble states that it applies to claims “henceforth,” and the statute contains provisions that unquestionably apply to cases arising out of pre-enactment conduct. Under these circumstances, it would be anomalous to conclude that the expropriation exception did not apply to pre-enactment conduct absent any statutory language to that effect. After reaching this conclusion, Stevens emphasized that the decision was very narrow by highlighting defenses that Austria might assert on remand and explaining that nothing prevents the State Department from asking a court to give a sovereign immunity in particular cases.
Scalia concurred, noting that the FSIA is a jurisdictional statute and that ordinarily, such statutes are given immediate effect. Breyer (joined by Souter) concurred as well to add additional grounds for the decision. (To be honest, I’m running out of steam here. Breyer has lots of reasons why he thinks the Court came to the correct conclusion. I’ll leave it at that.) Kennedy (joined by the Chief and Thomas) dissented. He believes the Court weakens the reasoning and thus the force of its retroactivity cases, and that the suggestion that the State Department could intervene to request immunity is inconsistent with the FSIA.
Whew. That’s it for opinions until Monday. In news from the order list, the Court granted cert in one case and asked the Solicitor General to weigh in on a set of others:
1. Rousey v. Jacoway (03-1407): In this case, the Court will decide whether, and to what extent, IRAs are exempt from a bankruptcy estate under 11 USC 522(d)(10)(E).
2. American Trucking Assoc. v. Michigan Public Service Comm’n (03-1230), Mid-Con Freight Systems v. Michigan Public Service Comm’n (03-1234), and Troy Cab v. Michigan Public Service Comm’n (03-1250): The Court asked the SG to present the views of the US in these cases. They all challenge a ruling by the Michigan Court of Appeals that upheld Michigan’s $100 annual fee on motor carrier vehicles against commerce clause challenges.
Finally, the Chief (joined by Scalia and Thomas) dissented from the denial of cert in Colorado General Assembly v. Salazar (03-1082), a redistricting case. Because the Colorado General Assembly failed to pass a redistricting plan after the 2000 census, a Colorado state court drew a redistricting plan. When the General Assembly subsequently passed a plan, the Colorado AG filed suit to ensure that the court’s plan, and not the General Assembly’s plan, was used. The Colorado Supreme Court ruled in favor of the AG, noting that the Colorado Constitution only allows redistricting once per decade. The General Assembly petitioned for cert claiming that this ruling, which upheld a permanent redistricting plan produced by a court, violates Article I, Section 4 of the US Constitution because that section requires redistricting to be done by state “legislature[s].” The Court denied cert in this case, but the Chief dissented. He acknowledged that while the separation of powers in a state government is not usually a federal issue, in this context it is. And here, according to the Chief, the Colorado court’s conclusion was highly debatable.
That’s all until next week, when the Court should hand down several opinions. Until then, have a nice weekend!
Sandy
From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin