Greetings, Court Fans!
We’re back with more outstanding opinions from the end of the Term, leading off with yesterday’s ruling in Panetti v. Quarterman (06-6407), where a 5-4 majority led by Justice Kennedy blocked, for the time being, the execution of a mentally ill Texas man. Panetti was sentenced to death after killing his wife’s parents, despite what the Court described as obvious signs of mental illness before and during his trial (at which he represented himself, badly). After losing his Texas appeals, Panetti filed a federal habeas petition arguing that he was incompetent to stand trial or to waive counsel, but not arguing that he was incompetent to be executed. Only later did he raise that issue, arguing first in Texas and then in a second federal habeas petition that he could not be executed under Ford v. Wainwright (1986), which held that the Eighth Amendment bars executing the presently insane. Both efforts failed; the district court held that the Texas court proceedings were constitutionally inadequate, but still denied habeas relief because, under Fifth Circuit precedent, the test for competence required only that the inmate know “the fact of his impending execution and the factual predicate for the execution.”
The Court sent the case back after rejecting the Fifth Circuit test for competency. First, however, it held that it had jurisdiction even though Panetti did not raise the competency issue until his second habeas petition. Ordinarily, courts must dismiss new claims in a “second or successive” habeas petition, but the Court made an exception for Ford claims, which now need only be raised when they become ripe. The issue was that Ford bars executing the presently insane – including inmates competent at trial but who develop mental illness on death row. As a result, a Ford claim may not become ripe for years, long after the one-year deadline for most habeas petitions following conviction. The Court was worried that applying the “second or successive” bar would lead inmates to file a slew of unripe and meritless Ford petitions simply to avoid waiving the issue – a waste of resources for states and the courts. Second, the Court held that the Texas procedures ran afoul of clearly established Eighth Amendment law; Panetti had made a substantial showing of incompetency, entitling him to an adequate means of submitting expert evidence in response to the state’s, and the state court’s failure to give him this process meant that no deference was due to its rulings under AEDPA. (This part of the opinion was quite harsh on the Texas court, which did not transcribe its proceedings despite Panetti’s request and which apparently gave notice of some proceedings only to the state.) Finally, the Court reached the Fifth Circuit’s test for competency, finding that it was too restrictive. Panetti argued that he should be allowed to show that, while he knew that Texas said he was being executed for killing his wife’s parents, his mental state precluded him from having a “rational understanding” of that reason (apparently, he thought the real reason he was being killed was “to stop him from preaching” as part of an ongoing struggle between angels and demons). Ford did not establish a precise competency standard, but the Court held that it did not foreclose inquiry into whether a prisoner’s delusions precluded his understanding the stated reason for his execution. So the Court sent the case back to the district court to pass on that question in the first instance.
Justice Thomas led the dissenters (the Chief and Justices Scalia and Alito), who disagreed with each of the majority’s rulings. First, they thought that Panetti’s Ford claim clearly ran afoul of the “second or successive” rule, and the majority had “bent over backwards” to let him bring it despite no evidence that his condition had worsened. They rejected Kennedy’s “judicial economy” argument – district courts can simply reject unripe Ford claims, and petitioners can re-raise them later. Second, the Texas court did not unreasonably apply Ford because Panetti had the opportunity to submit evidence and respond to the state’s experts; as a result, the Court should have deferred to its competency ruling. Third, the dissent would not have reached the Fifth Circuit competency standard in light of the first two points, but it rejected the majority’s “half-baked holding that leaves the details of the insanity standard for the District Court to work out.” That approach “settled upon a preferred outcome without resort to the law.”
That brings us to Monday’s ruling in National Ass’n of Home Builders v. Defenders of Wildlife (06-340) and EPA v. Defenders of Wildlife (06-549), in which the Court addressed two apparently conflicting provisions of the Clean Water Act (CWA) and the Endangered Species Act (ESA). CWA section 402(b) requires that EPA transfer certain permitting powers to state authorities if the state can satisfy nine specific criteria, all of which have to do with whether the relevant state agency has legal authority to administer the permits; if the criteria are satisfied, then EPA must transfer authority to the state. ESA section 7(a)(2), however, provides that all federal agencies must consult with various Commerce and Interior Department agencies to ensure that their actions do not jeopardize any endangered species (the “no jeopardy” provision). When Arizona asked to administer the CWA permits, EPA first consulted with the Fish and Wildlife Service, but ultimately concluded that the CWA did not allow it consider the ESA “no jeopardy” condition and therefore, no consultation was required (it also found no jeopardy in any event). Environmentalists challenged the decision, and ultimately the Ninth Circuit found that (1) EPA’s decision was “arbitrary and capricious” because EPA took conflicting positions on the ESA provision (first going to Fish and Wildlife and then determining there was no need to go), and (2) the ESA effectively amended the CWA to add the “no jeopardy” condition as a tenth requirement for CWA permitting transfers.
A 5-4 Court reversed, with Justice Alito writing for the majority. The Court first noted that if the EPA decision truly had been arbitrary and capricious, then the Ninth Circuit should have remanded the matter for EPA to clarify its reasons rather than resolve the case on the merits. In any event, EPA’s decision was not arbitrary or capricious – EPA higher-ups simply overruled lower-ranking officials who initially tried to follow the ESA provision, which is fine so long as the agency follows proper procedure (which it did). Next, it held that the ESA provision did not effectively amend the CWA transfer statute. Noting that an amendment is functionally the same as a partial repeal, the Court fell back on its general rule against repeals by implication, which it recognizes only when two statutes are irreconcilable or when Congress clearly intends a later law to substitute for an earlier one. Those conditions did not apply here. Moreover, the Ninth Circuit’s reading of the ESA would implicitly override every federal statute mandating agency action, a result the Court could not stomach. Instead, it deferred to Commerce’s and Interior’s joint interpretation of the ESA “no jeopardy” provision as applying only to discretionary federal actions, which it felt was reasonable in light of the otherwise ambiguous scope of the statute. Because CWA transfer is mandatory – not discretionary – where a state satisfies the nine criteria, the transfer was proper.
Justice Stevens led the dissenters (Justices Souter, Ginsburg and Breyer – apart from Panetti, this foursome had a particularly frustrating week). Stevens first accused the majority of ignoring the Court’s holding in TVA v. Hill (1978), the celebrated “snail darter” case, in which the Court enjoined completion of the Tellico Dam because it would destroy the habitat of a tiny species of fish. Hill, written by Chief Justice Burger, held that the ESA “admits of no exception” and reflected Congress’s judgment that endangered species have priority over federal agency decisions. There was thus no room for exempting nondiscretionary federal actions. (The majority distinguished Hill by describing the Tellico Dam project as a discretionary federal action, not a mandatory one). Further, he thought the Court misread the Commerce/Interior regulations, which he viewed as consistent with a broad scope for the “no jeopardy” rule rather than restricting it to discretionary federal action. Finally, he noted that there really was no need to engage in judicial gymnastics to harmonize the statutes because the consultation process envisioned by the ESA did that by itself – the whole point of consultation here, for example, would be for EPA and Interior to figure out a way to transfer permitting authority to Arizona and protect endangered species at the same time, if any in fact were threatened. (In an interesting tidbit, Stevens noted that where no alternative can be found through consultation, the ESA allows for exemptions from the “no jeopardy” rule if approved by an “Endangered Species Committee” – a/k/a the “God Committee” because it effectively can approve the extinction of a species. How would you like that assignment?)
Finally, we have a number of cert grants to report from the Court’s final order lists of the Term. The biggest news, announced just this morning, is that the Court has granted the cert petitions in Boumediene v. Bush (06-1195) and Al Odah v. United States (06-1196), in which Guantanamo Bay detainees are challenging their detentions. Just three months ago, the Court denied cert, but today it granted Boumediene’s and Al Odah’s petitions for rehearing, vacated its earlier orders, and granted the petitions. The order is notable enough given the importance of the cases, but it’s also significant because a decision to grant rehearing requires five votes, not the usual four needed for cert (leading one to wonder if the more liberal justices have manages to sway Justice Kennedy . . .). The questions presented in Boumediene are: (1) Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay; and (2) whether Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits. The questions in Al Odah are lengthier, but similar.
In addition, next Term the Court will hear the following cases:
Riegel v. Medtronic, Inc. (06-179): Whether the express preemption provision of the Medical Device Amendments to the Food, Drug, and Cosmetic Act preempts state-law claims seeking damages for injuries caused by medical devices that received premarket approval from the Food and Drug Administration.
Rowe v. New Hampshire Motor Transport Ass’n (06-457): (1) Whether the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) preempts states from exercising their historic public health police powers to regulate carriers that deliver contraband such as tobacco and other dangerous substances to children; (2) Whether the FAAAA preempts states from exercising their historic public health police powers to require shippers of contraband such as tobacco and other dangerous substances to utilize a carrier that provides age verification and signature services to ensure that such substances are not delivered to children.
Knight v. Commissioner of Internal Revenue (06-1286): Whether 26 U.S.C. § 67(e) permits a full deduction for costs and fees for investment management and advisory services provided to trusts and estates.
Snyder v. Louisiana (06-10119): The full questions presented in this case are lengthy, but they involve an African American prisoner’s Batson challenge to his conviction and death sentence by an all-white jury after the prosecutor peremptorily struck all possible black jurors and urged a death sentence because the case was “an O.J. Simpson case” where the defendant “got away with it.” The Court has already sent the case back for reconsideration once; we’ll see what they do with it this time.
That’s all for now – we’ll be back shortly with the last two summaries, which will close the book on the October 2006 Term. Thanks, as always, for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400