cert petition

Cert Petition in Klamath National Forest Endangered Species Act Case

Matthew L.M. Fletcher2 Comments

Here is the petition in New 49’ers Inc. v. Karuk Tribe of Indians:

New 49ers Cert Petition

Questions presented:

  • Whether a federal official’s receipt and review of notice of private action, his exercise of discretion as to whether to invoke agency regulatory powers over such private action, and his decision not to invoke such powers, constitute “agency action” for purposes of § 7(a)(2) of the Endangered Species Act.
  • Whether the federal courts lack jurisdiction over the action in light of changed circumstances.

Lower court materials here (case formerly captioned as Karuk Tribe of California v. USFS).

I don’t know the merits of this petition, but it probably should be denied because of the cheese ball (if not downright tacky) caption here.

 

Marceau v. Blackfeet Housing Authority Cert Petition

Matthew L.M. Fletcher3 Comments

Here:

Marceau Cert Petition

Questions presented:

1) Whether the Ninth Circuit misconstrued and misunderstood requirements for finding a Federal Trust Responsibility to Indians. Is the pervasive role of the federal government based on the administration of the law as well as the letter of the law?
2) Is there a conflict in the Circuits on this issue? Compare Brown v. United States, 86 F.3d 1554, 1560-61 (Fed. Cir. 1996) and other cases in the Federal Circuit with the decision of the Ninth Circuit in this case below (Marceau III, 540 F.3d 916, 928 (9th Cir. 2008).
3) Is there a special burden on the federal government as it relates to Indian Housing in view of the Congressional Acts on Housing, the disadvantage to Indians caused by the Indian Allotment Act which prohibits Indians from holding title to their land, and the Indian Trust Responsibility of the federal government?
4) Was the Ninth Circuit wrong in summarily dismissing Plaintiffs’ APA claim as time barred when the true state of affairs was not discovered until well within the statute of limitations? Was the Ninth Circuit wrong in not considering the federal Indian Trust Responsibility in connection with this decision?
5) Was the Ninth Circuit wrong in holding that HUD had no duty to act on a specific request of the Housing Authority and the Blackfeet Tribe to “fix it?” Was the Ninth Circuit wrong in not considering the federal Indian Trust Responsibility in connection with this decision.
Lower court materials here.
The Supreme Court denied cert in an earlier stage of this litigation here.

Samish Indian Nation Cert Opposition Brief in Trust Breach Case

Matthew L.M. Fletcher

Here:

Samish Cert Opp

The cert petition is here.

Lower court materials here.

Materials in Tribal Challenges to HUD Funding Reductions and Grant Money Recapture Actions

Matthew L.M. Fletcher1 Comment

Here are the materials in Fort Peck Housing Authority v. Department of Housing and Urban Development (D. Colo.):

DCT Order in Fort Peck v HUD

Fort Peck Opening Brief

HUD Answer Brief

Fort Peck Reply

And the materials in Nambé Pueblo Housing Authority v. Department of Housing and Urban Development (D. Colo.):

DCT Order in Nambe Pueblo Case

Nambe Pueblo Opening Brief

HUD Response Brief

Nambe Reply

Earlier materials in Fort Peck Housing Authority v. HUD are here.

BIA Agent Subject to Bivens Action Files Cert Petition

Matthew L.M. Fletcher2 Comments

Here is the petition in Oravec v. Cole:

Oravec v Crane Cert Petition

The question presented:

Whether a motion to dismiss brought by a federal law enforcement officer asserting qualified immunity should be granted under Aschroft v. Iqbal, 556 U.S. 662 (2009), where the complaint alleges a Bivens claim through nothing more than a formulaic recitation of the elements of the cause of action, general and unsupported statistics and musings, and alleged policy problems having nothing to do with the particular officer.

Lower court materials here.

On Using Indians and Tribes as Shills in the Supreme Court

Matthew L.M. Fletcher2 Comments

I’ve defended the Office of Solicitor General in the past, lamented that despite their best efforts, they keep losing Indian cases as the tribal trustee. But lately, it seems like the SG is using Indian tribes as shills to clean up some other messes. They used the Tohono O’odham Section 1500 CFC suit to clean up that mess — they waited for years for the right case, and when the Indian cases came, that was the right time. The OSG may have thought that the tribal contract support costs cases were the right cases to clean up the mess with the Congressional Judgment Fund (they were wrong).

Now another tribe has given the government a chance to clean up another mess — attorney fees under the Equal Justice Act. The case is Pecore v. United States (Pecore Cert Petition, lower court materials here). I know next to nothing about the EJA, but if the petition is right, and there is a serious circuit split, then the government might jump right in. We’ll know at the end of next month when the response to the cert petition is due. If the government acquiesces, we must all realize they’re doing it because the petitioner is tribal. Tribal interests are at the bottom of the barrel when it comes to favored, repeat parties at the Supreme Court.

A footnote — recall the Arizona cert petition on the next major immigration case filed earlier this summer. In the lower court, when Arizona had no say in the caption, the case was called Gonzales v. Arizona. Gonzales was the lead plaintiff, and a lot of people and groups signed on. Now that Arizona has lost below, they rewrote the caption. The case is now captioned Arizona v. Inter Tribal Council of Arizona. All the rest of the respondents are listed in alphabetical order, including Gonzales, except the tribal respondents, who are listed first. If the Court hears this case, it’ll be an Indian-related case first and foremost. Arizona knows what it’s doing.

Craven v. Cobell Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Craven Cert Petition

The questions presented:

 

In a decision that conflicts with many decisions of both this Court and other appellate circuits, the Circuit Court of Appeals for the District of Columbia affirmed the final approval of a contested settlement of a long-standing class action involving mismanagement of land trusts for American Indians. Without allowing them to opt out, the settlement extinguishes the rights of the class members to any accounting of the moneys they are owed, in exchange for a one-time $1,000 payment. Then, despite the class members’ ignorance of the amount to which they would be entitled, the settlement offers an additional baseline sum of at least $800 in exchange for which they relinquish any rights to sue on dozens of related claims.
This settlement was approved over the objections of a number of class members. In addition to the bargain described above, it afforded a $99 million fee to the plaintiffs’ attorneys, and incentive payments ranging between $150,000 and $2 million for each of the named plaintiffs.
The questions presented are:
1. Whether a court may impose on an objector the burden to provide evidence of a structural conflict where it concedes that the defendant’s conduct has destroyed any such evidence.
2. Whether the payment of incentives to named plaintiffs of an amount more than eighty times the award due each class member compromises their ability to adequately represent the class at settlement.

Madison and Oneida Counties to Seek Supreme Court Review of Oneida Reservation Boundaries

Matthew L.M. Fletcher

Here is the latest pleading from the counties, seeking a stay from the CA2 on the reservation boundaries question:

Motion for Stay

Here was our last post, with the counties seeking en banc review of the reservation boundaries issue (the court recently denied the petition).

New Scholarship on the Ethics of Opposing Certiorari

Matthew L.M. Fletcher

Aaron Tang recently (ok, in June) posted, “The Ethics of Opposing Certiorari Before the Supreme Court,” a paper he published in the Harvard Journal of Law and Public Policy.

Here is the abstract:

As the Supreme Court’s docket grows smaller and an emerging class of “Supreme Court experts” snags a greater portion of that docket with every passing year, the value associated with each rare opportunity to argue before the Court continues to rise. The rising value has driven the legal academy to pay greater attention to the arduous process of persuading the Court to take on a case through its certiorari review. Elite Supreme Court practices have focused on the certiorari process as well, because the number of merits cases to which they will have access — and substantial fees — ride on the success of the petitions for certiorari they file. The stakes have gotten so high with respect to the Court’s decisions on “cert” petitions that the popular website SCOTUSblog now has a regular “petitions to watch” column discussing certiorari petitions with a high chance of being granted and conducts live chats on mornings when the Court issues orders to provide instant analysis on newly granted cases.

Persuading the Court to grant a petition for certiorari, however, is not the only way for an advocate to land an elusive Supreme Court oral argument. After all, the attorneys who prevail at the petition for certiorari stage take on only half of the sum total of oral arguments available. The other half belongs to the attorneys who lose at the petition stage and who, as a result, will be called before the Court to defend the merits of the judgment below. This Article’s core premise is that greater attention must be paid to this set of Supreme Court oral advocates and the incentives they face. Attorneys who lose at the opposition stage may nevertheless enjoy a personal “win” in the form of an opportunity to argue at the Supreme Court. As a result, there is the potential for an ex ante ethical dilemma for attorneys tasked with opposing certiorari. This dilemma, in turn, might well have important downstream effects on clients who prevailed below and who, unlike their attorneys, would therefore prefer not to be in the Supreme Court at all. This Article analyzes the potential ethical dilemma in opposing certiorari before the Supreme Court, relying chiefly on survey responses from more than one hundred Supreme Court practitioners.

Worth a read for tribal attorneys looking for Supreme Court counsel to defend a cert petition.

Expect Cert Petition in Kim Craven Appeal to Cobell Settlement Next Week

Matthew L.M. Fletcher4 Comments

Here.

Here are the musings of Ted Frank (Kim’s former attorney) on the D.C. Circuit decision.

UPDATE: Apparently, Rob C. at ICT has the draft, and published most of the details here.