Amicus Curiae Brief — Scott Timber Co., et al., Petitioners v. Oregon Wild, et al.

Supreme Court briefJan 19, 2018

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No. 17-881

In the

Supreme Court of the United States

SCOTT TIMBER CO. and

CARPENTERS INDUSTRIAL COUNCIL,

Petitioners,

OREGON WILD and CASCADIA WILDLANDS,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

DAMIEN M. SCHIFF

Counsel of Record

CALEB R. TROTTER

KAYCEE M. ROYER

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: dschiff@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

QUESTION PRESENTED

The United States Court of Appeals for the

Ninth Circuit follows a “general rule” that a district

court order vacating and remanding an agency action

is immediately appealable only by the agency itself.

Below, the Ninth Circuit held that this general rule

applies even when the agency has elected to take no

further action following the district court’s judgment.

The question presented is:

Is such a district court order immediately

appealable by a defendant-intervenor when the order

has the effect of enjoining an existing contract

between the intervenor and the agency?

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF REASONS

FOR GRANTING THE PETITION FOR WRIT

OF CERTIORARI ................................................. 2

REASONS FOR GRANTING THE PETITION ......... 4

THE NINTH CIRCUIT’S RESTRICTIVE RULE

FOR APPELLATE REVIEW OF REMAND

ORDERS WILL ENCOURAGE “SUE-ANDSETTLE” LITIGATION ....................................... 4

II. THE NINTH CIRCUIT’S RESTRICTIVE RULE

DOES NOT COMPORT WITH THIS COURT’S

PRECEDENTS ..................................................... 7

Sackett v. Environmental Protection Agency

is Sufficiently Analogous to Warrant Review

of the District Court’s

Remand Order Here ..................................... 8

U.S. Army Corps of Engineers v. Hawkes

Co., Inc. is Also Sufficiently Analogous to

Warrant Review of the Remand Order ..... 10

CONCLUSION.......................................................... 15

iii

TABLE OF AUTHORITIES

CASES

Alsea Valley Alliance v. Dep’t of Commerce,

358 F.3d 1181 (9th Cir. 2004) ................................. 2

Bennett v. Spear,

520 U.S. 154 (1997) ...................................... 9, 11-12

Catlin v. United States,

324 U.S. 229 (1945) ................................................. 7

Mathews v. Eldridge,

424 U.S. 319 (1976) .............................................. 7-8

Paulsen v. Daniels,

413 F.3d 999 (9th Cir. 2005) ................................... 6

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) ................................................. 8

Riley v. Kennedy,

553 U.S. 406 (2008) ................................................. 8

Riverbend Farms, Inc. v. Madigan,

958 F.2d 1479 (9th Cir. 1992) ................................. 6

Sackett v. Envtl. Protection Agency,

566 U.S. 120 (2012) .................................. 1, 8-11, 13

U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.,

136 S. Ct. 1807 (2016) .................................. 1, 10-14

Weyerhaeuser Co. v. Costle,

590 F.2d 1011 (D.C. Cir. 1978) ............................... 6

FEDERAL STATUTES

5 U.S.C. § 553(c) .......................................................... 6

28 U.S.C. § 1291 ...................................................... 3, 8

28 U.S.C. § 1291- 1292(a)(1) ....................................... 8

28 U.S.C. § 2101(b) .................................................... 8

42 U.S.C. §§ 4321-4370m-12 ...................................... 2

MISCELLANEOUS

Environmental Protection Agency, Directive

Promoting Transparency and Public Participation

in Consent Decrees and Settlement Agreements

(October 16, 2017), Available at

https://www.epa.gov/sites/production/files/201710/documents/signed_consent_decree_and_settlem

ent_agreement_directiveoct162017.pdf. ................. 5

Hayes, Kelli, Comments, Sue and Settle: Forcing

Government Regulation Through Litigation, 40 U.

Dayton L. Rev. 105 (2015)................................... 5, 6

Tyson, Ben, Note, An Empirical Analysis of Sue-AndSettle in Environmental Litigation, 100 Va. L. Rev.

1545 (2014) .......................................................... 4, 5

INTEREST OF AMICUS CURIAE 1

Pacific Legal Foundation (PLF) is the nation’s

oldest public interest legal foundation that seeks to

vindicate the right of private property and other

liberties, and to ensure that the federal government

abides by the Constitution’s structural and procedural

protections for individual freedom. Consistent with

these goals, PLF attorneys served as counsel of record

in two of the Court’s recent decisions confirming the

availability of judicial review of agency decisionmaking that menaces property rights and liberty. See

Sackett v. Envtl. Protection Agency, 566 U.S. 120

(2012); U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.,

136 S. Ct. 1807 (2016). This case is important to PLF

because, when agencies decide not to undertake

further action in response to a remand order, that

order may evade appellate review altogether, thereby

exacerbating the odious effects of analogous sue-andsettle litigation. Further, this case is important

because the Ninth Circuit’s decision limits the

availability of appellate review when agencies decide

not to appeal district court remand orders, which in

turn results in substantial and costly delay.

1 No counsel for any party authored this brief in whole or in part,

and no person or entity other than amicus curiae funded its

preparation or submission. More than 10 days in advance, all

parties received timely notice of Pacific Legal Foundation’s

intent to file this brief. Counsel for Petitioners filed a letter of

consent to the filing of amicus curiae briefs, and it is on file with

the Clerk. In correspondence with amicus curiae, counsel for

Respondents consented to the filing of this brief.

INTRODUCTION AND SUMMARY

OF REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI

In 2012, Petitioner Scott Timber Co. purchased

the White Castle timber contract from the Bureau of

Land Management to harvest 187 acres of a western

Oregon forest designated for timber harvesting. Pet.

Cert. Br. at 4-6. As part of the sale, the Bureau

prepared an environmental assessment and a

“Finding of No Significant Impact” pursuant to the

National Environmental Policy Act (NEPA), 42 U.S.C.

§§ 4321-4370m-12. Pet. Cert. Br. at 5. Subsequently,

Respondents Oregon Wild and Cascadia Wildlands

sued the Bureau, challenging the validity of the sale

and arguing that an environmental impact statement

was required under NEPA. Pet. Cert. Br. at 7.

Petitioners Scott Timber and Carpenters Industrial

Council (Union) joined the case as intervenordefendants. Id. The district court ruled on summary

judgment in favor of Respondents and entered a final

judgment to that effect on May 7, 2015. Pet. Cert. Br.

at 7-9. Thus, even though a final judgment was

entered, the court’s order, practically speaking,

remanded 2 the case to the Bureau to prepare an

The district court did not issue a formal “remand order”

directing the Bureau to conduct an environmental impact

statement, but instead simply ordered that the Bureau’s decision

approving the White Castle timber sale be set aside and entered

final judgment. Pet. Cert. Br. at 8-9. Thus, the Ninth Circuit’s

application of Alsea Valley Alliance v. Dep’t of Commerce, 358

F.3d 1181 (9th Cir. 2004), is all the more troubling because there

is no actual remand. Nevertheless, because the “set aside” order

effectively operates as a remand order, precluding the timber

sale unless and until the Bureau produces an environmental

environmental impact statement. Pet. Cert. Br. at 79. Scott Timber and the Union appealed that decision

to the Ninth Circuit, but the Bureau did not. Pet. Cert.

Br. at 9.

Shortly before oral argument, the Ninth Circuit

vacated the scheduled argument and dismissed Scott

Timber and the Union’s appeal for lack of a final

judgment under 28 U.S.C. § 1291. The Ninth Circuit

cited its “general rule” that intervenor-defendants

cannot appeal a remand order because their interests

will be sufficiently considered during the remand. Pet.

Cert. Br. at 10-11. But after the denial of rehearing,

the Bureau notified Scott Timber via letter that,

rather than complete an environmental impact

statement for the White Castle sale, the agency would

cancel and terminate the sale. Pet. Cert. Br. at 11.

Therefore, the only avenue left to Scott Timber and

the Union for review of the district court’s holding that

an environmental impact statement is required, and

to revive the timber sale, is through Supreme Court

reversal of the Ninth Circuit’s dismissal of the appeal.

For two reasons, the Court should grant the

petition for a writ of certiorari. First, the similarities

between the actions of the Bureau in this case and

those that typically occur in “sue-and-settle” litigation

are stark. Unless the Court resolves the split between

the Tenth and Ninth Circuits identified by

Petitioners, then the Ninth Circuit’s anomalous

“general rule” that only defendant agencies—and not

intervenor-defendants—can appeal adverse district

court remand orders will undermine important

impact statement, this Brief will refer to the district court’s

decision as a “remand order.”

safeguards that the Administrative Procedure Act

(APA) provides against agency abuse.

Second, the decision below does not comport

with the Court’s recent decisions granting judicial

review of previously unreviewable EPA and U.S.

Army Corps of Engineers actions. In Sackett and

Hawkes, the Court held EPA compliance orders and

the Corps’ approved jurisdictional determinations to

be reviewable under the APA. Both cases involved

agency action that resulted in costly and timeconsuming consequences for the regulated parties and

the agencies: the EPA compliance order frustrated the

Sacketts’ home-building project, and the jurisdictional

determination subverted Hawkes’s peat mining plans.

In part because of these consequences, the Court held

that judicial review was appropriate to review the

challenged agency actions. Likewise here, the

Bureau’s decision not to produce an environmental

impact statement frustrates Scott Timber’s valuable

timber contract, a consequence which supports

immediate judicial review, as in Sackett and Hawkes.

REASONS FOR GRANTING THE PETITION

THE NINTH CIRCUIT’S

RESTRICTIVE RULE FOR APPELLATE

REVIEW OF REMAND ORDERS WILL

ENCOURAGE “SUE-AND-SETTLE”

LITIGATION

“Sue-and-settle” is a term used to describe

when an advocacy group sues a regulatory agency,

and the agency, rather than defending itself at trial,

settles with the group. Ben Tyson, Note, An Empirical

Analysis of Sue-and-Settle in Environmental

Litigation, 100 Va. L. Rev. 1545, 1545 (2014). The

resulting settlement agreement then binds the agency

to take a specific action to resolve the group’s claims.

Id. Not allowing interested parties to intervene in sueand-settle litigation results in the undermining of the

APA because outcomes become predetermined during

a period in which plaintiffs have purposefully

excluded certain stakeholders. Kelli Hayes,

Comments, Sue and Settle: Forcing Government

Regulation Through Litigation, 40 U. Dayton L. Rev.

105, 118-22 (2015); see Environmental Protection

Agency, Directive Promoting Transparency and Public

Participation in Consent Decrees and Settlement

Agreements (Oct. 16, 2017). 3

When an agency declines to appeal a remand

order, as is the case here, the effects of such actions

are similar to those of sue-and-settle litigation

because the intervening party is left with no adequate

means to defend against the outcome of the litigation

without the right to appeal. The Bureau’s

acquiescence in the judgment in this case, and its

decision not to complete an environmental impact

statement, are contrary to Scott Timber and the

Union’s interest. In other words, the result in this case

is similar to the results in sue-and-settle cases where

a court refuses to allow interested parties to

participate meaningfully in the judicial process.

Further, in sue-and-settle litigation, agencies

are often predisposed to accept certain pre-negotiated

outcomes. Tyson, 100 Va. L. Rev. at 1577. Agencies

frequently propose rules that enact a negotiated

3 Available at https://www.epa.gov/sites/production/files/2017-

10/documents/signed_consent_decree_and_settlement_agreeme

nt_directiveoct162017.pdf.

consent decree or settlement agreement to avoid

further litigation on the matter. Hayes, 40 U. Dayton

L. Rev. at 112. However, the processes that follow

upon an agreement reached through sue-and-settle

litigation do not necessarily protect the interests of

the public. Weyerhaeuser Co. v. Costle, 590 F.2d 1011,

1028 (D.C. Cir. 1978). Additionally, if the outcome has

already been predetermined, then any opportunities

for notice and comment are a mere charade, having no

real effect on the outcome. Instead, the only parties

that are able to influence an agency’s policy decisions

are the groups that have the resources and inclination

to file lawsuits and negotiate settlements—a practice

that directly conflicts with the APA’s regulatory

rulemaking processes. See 5 U.S.C. § 553(c).

The APA requires administrative agencies to

follow certain procedures when developing new

regulatory rules, including allowing for public input.

Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479,

1483-84 (9th Cir. 1992). The rulemaking process

requires agencies to send notice to interested parties

who then may provide comments that the agency

must consider before adopting a final rule. 5 U.S.C.

§ 553(c); Riverbend Farms, 958 F.2d at 1484; see also

Paulsen v. Daniels, 413 F.3d 999, 1005 (9th Cir. 2005)

(“It’s antithetical to the structure and purpose of the

APA for an agency to implement a rule first, and then

seek comment later.”).

Allowing affected parties to participate

meaningfully in potential sue-and-settle lawsuits

helps to protect the integrity of judicial review in APA

cases. By allowing intervening parties to participate

in cases in which the government does not adequately

represent their interests, the intervention rule

provides groups not originally included in the

litigation the opportunity to have their views heard

before legal consequences attach. However, when the

right to appeal decisions that have the effect of sueand-settle—such as the remand order in this case—is

removed, intervenors can no longer adequately defend

against claims for which the government is no longer

willing to defend. Further, when it becomes too easy

for certain groups to obtain their favored outcome

simply because the government refuses to continue

onward in its defense, the APA is undermined.

Thus, a robust ability for interested parties to

intervene and appeal adverse decisions is necessary to

provide appellate courts with the opportunity to

consider arguments and evidence neglected by

administrative agencies. Without generous rules

favoring intervention and, in particular, appellate

review, agency decision-making will go unchecked,

resulting in the undermining of the APA and the

encouraging of motivated special interest groups to

continue to circumvent the law and equity.

THE NINTH CIRCUIT’S RESTRICTIVE

RULE DOES NOT COMPORT

WITH THIS COURT’S PRECEDENTS

A judgment is final when it “ends the litigation

on the merits and leaves nothing for the court to do

but execute the judgment.” Catlin v. United States,

324 U.S. 229, 233 (1945). The core principle behind

finality requirements is that they should “be

construed so as not to cause crucial collateral claims

to be lost and potentially irreparable injuries to be

suffered.” Mathews v. Eldridge, 424 U.S. 319, 331 n.11

(1976). Applying these principles, the Court has

drawn parallels between finality under 28 U.S.C.

§ 1291 (final decisions of district courts) and § 2101(b)

(direct appeals to the Supreme Court), see Riley v.

Kennedy, 553 U.S. 406, 419 n.5 (2008), as well as

between § 1291 and abstention-based remand orders

which result in litigants’ being put “effectively out of

court.” See Quackenbush v. Allstate Ins. Co., 517 U.S.

706, 711-15 (1996). But there are additional parallels

between 28 U.S.C. §§ 1291-1292(a)(1) and the Court’s

recent decisions in two analogous APA cases. Those

cases (Sackett and Hawkes) provide further evidence

of a trend in favor of expanding, not constricting,

judicial (and appellate) review. Yet the Ninth Circuit’s

“general rule” that prohibits non-agency intervenordefendants from appealing district court remand

orders runs counter to that trend and, as is the case

here, puts intervenor-defendants “effectively out of

court.” See Quackenbush, 517 U.S. at 713-14.

Sackett v. Environmental Protection

Agency is Sufficiently Analogous to

Warrant Review of the District Court’s

Remand Order Here

In Sackett, 566 U.S. at 124, the petitioners

owned a 2/3 acre residential lot in Idaho. The property

sat near a lake, but several lots containing permanent

structures were between the lake and the Sacketts’

lot. Id. In preparation for building a home, the

Sacketts used rock and dirt to fill in part of their lot.

Id. Some months after filling it in, the Sacketts

received a compliance order from EPA informing them

that they were in violation of the Clean Water Act for

filling in regulated wetlands, and directing them to

restore their lot, among other things. Id. at 124-25.

Believing that EPA was incorrect about the lot’s

containing regulated wetlands, the Sacketts

requested a hearing with the agency. Id. at 125. When

their request was ignored, the Sacketts filed suit

under the APA to challenge the compliance order. Id.

At issue before the Court in Sackett was

whether the compliance order was final agency action

subject to judicial review under the APA. Id. at 12526. The district court and Ninth Circuit held that

compliance orders were not final action subject to

judicial review, but this Court reversed. Id. at 125,

131. Applying Bennett v. Spear, 520 U.S. 154, 178

(1997), the Court held that the Sacketts’ compliance

order was a final action because (1) the order was the

“consummation” of EPA’s decision-making process, as

it contained “Findings and Conclusions” that were not

subject to additional agency review, (2) the order

determined “rights or obligations” by requiring the

Sacketts to restore their lot, and (3) “legal

consequences . . . flow[ed]” from the order because

EPA could impose severe financial penalties in an

enforcement proceeding for violations of the order. 566

U.S. at 126-27. Further, the Court held that the APA’s

requirement that there be “no other adequate remedy

in a court” was satisfied because the Sacketts could

not initiate an EPA Clean Water Act enforcement

proceeding against themselves. Id. at 127. Nor could

they obtain adequate review by pursuing the

permitting process with the Corps of Engineers. Id.

Here, the district court’s de facto remand order

is analogous to the compliance order in Sackett, and

thus should be reviewable by immediate appeal. First,

the remand order was the “consummation” of the

district court’s decision resolving the case, as no sale

can proceed until the court’s order is satisfied. Second,

the order determined rights or obligations, and

produced legal consequences, because it set aside the

timber sale and obligated the Bureau to produce a full

environmental impact statement before proceeding

with the timber harvest. Pet. Cert. Br. at 8; cf. Sackett,

566 U.S. at 126-27. Third, because the Bureau

ultimately chose not to appeal the remand, and later

informed Scott Timber that it would not complete an

environmental impact statement to allow the timber

sale to move forward, Scott Timber had “no other

adequate remedy” to appeal the district court’s

determination that an environmental impact

statement was required under NEPA. Indeed, if the

Court does not reverse the Ninth Circuit’s decision to

vacate the appeal, then Scott Timber and the Union

have no way to revive the sale.

U.S. Army Corps of Engineers v. Hawkes

Co., Inc. is Also Sufficiently Analogous to

Warrant Review of the Remand Order

In Hawkes, 136 S. Ct. at 1812-13, a mining

company sought a permit from the Corps that would

allow it to mine peat in Minnesota on a 530-acre tract

of land containing wetlands. During the permitting

process, however, the Corps issued an “approved

jurisdictional determination” stating that the

property contained regulated “waters of the United

States” because its wetlands had a “significant nexus”

to a river about 120 miles away. Id. at 1813. As a

result, the mining company was faced with

substantial costs and years of delay before mining

operations could be approved for the property. See id.

The company administratively appealed and obtained

a remand for further factfinding; but on remand, the

Corps affirmed the jurisdictional determination. Id.

The mining company then sought judicial review

under the APA, but the federal district court

dismissed, holding that it lacked jurisdiction because

the jurisdictional determination was not “final agency

action for which there is no other adequate remedy in

a court.” Id. On appeal, however, the Eighth Circuit

reversed. Id. This Court then granted review.

The questions before the Court on certiorari

were whether the jurisdictional determination was

final agency action and, if it was, whether there were

adequate alternatives to judicial review. Id. Applying

Bennett, 520 U.S. at 177-78, as the Court did in

Sackett, the Hawkes Court held that approved

jurisdictional determinations are final agency action.

136 S. Ct. at 1813-14. To begin with, the Court held

that Bennett’s first prong was satisfied because a

jurisdictional determination is issued only after

extensive agency analysis, and will be changed only if

“new information” counseling a different result

emerges. Id. Further, the Court held that legal

consequences

flow

from

jurisdictional

determination. Id. at 1814. For example, a “negative”

jurisdictional determination, whereby the Corps

determines that “waters of the United States” are not

present on a property, results in the owners of that

property receiving a five-year safe harbor from

enforcement proceedings under the Clean Water Act.

See id. at 1814-15. Thus, an approved jurisdictional

determination finding such waters to be present

necessarily deprives the property owner of that safe

harbor, as well as increases the potential for criminal

and civil liability for discharging pollutants into those

waters without a permit. See id. These effects, in the

Court’s estimation, were sufficient under Bennett, as

well as the Court’s long-held “pragmatic” approach to

finality, for a jurisdictional determination to be

deemed “final agency action.” Id.

The Court in Hawkes also held that there was

no adequate alternative to APA review of

jurisdictional determinations, rejecting the Corps’ two

contrary arguments. 136 S. Ct. at 1815. The Corps’

first alleged adequate alternative (discharge

pollutants without a permit and challenge the

necessity of a permit if enforcement proceedings were

initiated) was inadequate, the Court explained,

because “parties need not await enforcement

proceedings before challenging final agency action

where such proceedings carry” the potential of serious

penalties. Id. Indeed, violations of the Clean Water

Act can include criminal penalties as well as fines up

to $37,500 for each day a party is in violation of the

Act. See id. The Corps’ second, purportedly adequate

alternative (apply for a permit and seek judicial

review if an unfavorable decision is made) was

similarly inadequate because the permit process itself

is “arduous, expensive, and long.” Id. Requiring

parties to undergo substantial expense and delay for

a process that includes analyses and studies wholly

separate from the question of whether the property

contains “waters of the United States,” or the finality

of any agency determination about the presence of

those waters, “adds nothing” to the jurisdictional

determination. Id. at 1816. Thus, no adequate

alternative to APA review existed, and so such review

was merited. Id.

Just as the EPA compliance order in Sackett is

analogous to the remand order here, so too is the

approved jurisdictional determination in Hawkes.

First,

the

approved

jurisdictional

determination was a final agency action because a

determination that a property contains “waters of the

United States” is made only after substantial analysis

of the property. 136 S. Ct. at 1813-14. Likewise, the

remand order in this case is an appealable final

decision because the timber sale cannot move forward

until the Bureau completes an environmental impact

statement (which the agency said it will not do). Pet.

Cert. Br. at 8-9, 11. Thus, although appellate review

is appropriate to determine whether the district court

properly vacated the timber sale in the first instance,

review is even more urgent, and merited, when the

agency will take no further action on remand.

Second, because of the removal of the safe

harbor from prosecution under the Clean Water Act,

and the resulting potential liability, the Hawkes Court

held that legal consequences flow from approved

jurisdictional determinations. 136 S. Ct. at 1814-15.

Similarly here, legal consequences flow from the

district court’s de facto remand order resulting in the

blocking of the timber sale unless and until the

Bureau conducts an environmental impact statement.

Another clear legal consequence of the dismissal of

Scott Timber’s appeal is that the district court’s

decision remains in place, and the timber contract

between the Bureau and Scott Timber remains a

nullity.

Third, in Hawkes, the Court held that there

were no adequate alternatives to APA review because

the only proposed alternatives were impractical and

overly burdensome. Id. at 1815-16. Similarly, here,

there is no adequate alternative to appellate review of

the district court’s determination that an

environmental impact statement was required—a

determination which invalidated the timber sale. In

fact, there is no alternative to appellate review

available, much less an adequate one, due to the

Bureau’s decision not to complete an environmental

impact statement. Hence, at a minimum, appellate

review is mandated given that Scott Timber and the

Union’s interest will necessarily not be represented as

part of the non-existent remand. 4

In sum, while the question as to whether

judicial review of agency action is available under the

APA is distinct from whether appellate jurisdiction

arises when intervenor-defendants—and not the

government—appeal district court remand orders, the

Court’s analysis and reasoning in the APA cases

discussed above are analogous here.

4 The Bureau did not inform Scott Timber of its intent not to

produce an environmental impact statement until after the

Ninth Circuit dismissed Scott Timber’s appeal. Pet. Cert. Br. at

11. Upon receipt of that information, Scott Timber requested the

Ninth Circuit to recall the mandate in the case, but that request

was denied on December 4, 2017. Id. Therefore, reversal by this

Court is Scott Timber and the Union’s only avenue for review of

the remand order.

CONCLUSION

For the foregoing reasons, the Court should

grant the petition for a writ of certiorari.

DATED: January, 2018.

Respectfully submitted,