Winding down the 2007-08 Term, the Supreme Court agreed on Friday to add two more cases to its decision docket for the next Term: a test case on dumping fill dirt into waterways, and a case on a defense lawyer’s duty to put forth the only argument available to aid the client. The Court also agreed to schedule argument in October, rather than later, on a newly granted case on the Navy’s authority to use sonar in its training exercises.
The new case on protecting waterways is actually a pair of appeals, consolidated for one hour of oral argument: Coeur Alaska v. Southeast Alaska Conservation Council (07-984) and Alaska v. Southeast Alaska Conservation Council (07-990). The issue is whether the Army Corps of Engineers has the authority to issue permits for dumping dredge or fill dirt into waterways, without satisfying all of the pollution restrictions enforced by the Environmental Protection Agency. The Justice Department had urged the Court not to hear the appeals, arguing that there is no conflict on the issue in lower courts. But, it added, if the Court did grant review, it would support the challenge to the Ninth Circuit Court decision barring the dumping of 4.5 million tons of dirt left over from gold-mining operations into a lake near Juneau, Alaska.
The other case the Court accepted is Knowles (Warden) v. Mirzayance (07-1315) — a case that was before the Justices last year. It involves an appeal by California officials, arguing that the Ninth Circuit Court refused to follow the mandate of the Supreme Court to defer to state court findings in this murder case. In the case, the defense lawyer advised Alexandre Mirzayance to withdraw an insanity plea — advice that the Circuit Court found violated standards of professional conduct because it was the only realistic defense point. The Supreme Court’s coming decision either could clarify that point, or it could be limited to a reaction to how the Circuit Court responded to the Justices’ 2007 order requiring a new look at the issue.
The newly granted cases are likely to be heard during the Court’s January sitting. To read the certiorari filings in the cases, click here.
Another case that was likely headed for argument at that time was the Navy’s appeal in Winter (Secretary of Navy) v. Natural Resources Defense Council (07-1239). But the Navy asked that the argument be moved up to the session that begins Oct. 6 — the first of the new Term — because of complications (including possible mootness) if heard later. The Court granted that motion, but did not immediately announce how it was rearranging the October calendar.
The Court is now in its summer recess. As usual, it announced that it would be issuing some orders in pending cases during the recess — on July 28, Aug. 18 and Sept. 5. These orders are usually routine matters, not grants or denials of review of new cases.
Among its orders Friday, the Court took its first actions on cases on gun rights following its Second Amendment decision Thursday: it denied review of an appeal by a firearms manufacturer, Michael J. Kelly, Sr.., who argued that Congress violated the Second Amendment by making it a crime to make, transfer or possess a semi-automatic assault weapon (Kelly v. U.S., 07-776), and it refused to hear an appeal by five Washington, D.C., residents who had wanted to take part in the challenge to the city’s ban on handgun possession (Parker, et al., v. District of Columbia, 07-335).
While the Court did not explain those denials, the law challenged in the Kelly case had lapsed on Sept. 13, 2004, and the “standing” issue in the Parker case lost most of its significance when the Court on Thursday struck down the handgun ban in District of Columbia v. Heller (07-290).
Among the other cases denied Friday was an appeal in a workers’ benefits case that the U.S. Solicitor General, asked by the Court for the government’s views, had recommended granting review. The case was Amschwand v. Spherion Corp. (07-841), asking whether the ERISA law’s grant of a right to pursue an injunction when a benefits plan manager violates a duty under the law includes a right to sue for the dollar amount of the amount of benefits lost. The Fifth Circuit had barred this type of remedy, and the Solicitor General argued that it was wrong in doing so. The Court did not explain its refusal to hear the case.
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