Reply Brief — Roe v. United States

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Supreme Court, U.S,

FILED

DEC 29 we

JOSEPH F. SPANIOL, JR.

No. 89-677 CLERK se

ew!

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

RICHARD ROE,

Petitioner,

UNITED STATES OF AMERICA,

Responde nt.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITIONER’S REPLY BRIEF

ROBERT P. WATKINS

Counsel of Record

JOHN D. CLINE

PAUL BUTLER

WILLIAMS & CONNOLLY

839 17th Street, N.W

Washington, D.C. 20006

(202) 331-5000

December 29, 1989 Attorneys for Petitioner

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TABLE OF CONTENTS

Page

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- TABLE OF AUTHORITIES

CASES:

Burke v. Barnes, 479 U.S. 361 (1987) ................. 6

California Coastal Comm’n Vv. Granite Rock Co..

I i Lh secavanadaponnns 4,5

First National Bank of Boston v. Bellotti, 435 U.S.

765 (1978) .. a 4

Great Western Sugar Co. V. . Nelson, “442 U. S. 92

(a abe OR SR A 6

Honig Vv. Doe, 484 U.S. 305 (1988) —..........0...2n... 2

In re Grand Jury Proceedings, 863 F.2d 667 (9th

Ne ai peins aceitinnsemeniumnas 5

In re Grand Jury Proceedings (Larson), 785 F.2d

EEE a ce 3

Murphy v. Hunt, 455 U.S. 478 (1982) 0.0.00... 2

SEC v. Sloan, 486 U.S. 108 (1978) ................0-0000.... 2

United States v. Munsingwear, Inc., 340 U.S. 36

Neen ee cs ciandeasanes 5, 6

United States v. Universal Mfg. Co., 525 F.2d 808

Nene ov cusbunaiwusavlewass 3

Weinstein Vv. Bradford, 423 U.S. 147 (1975) ........ 3

STATUTES AND RULES:

Nee ceil ccbtenimasiscwien 3

ES re 5

MISCELLANEOUS:

Annual Report of the Director of the Administra-

tive Office of the United States Courts (1988)... 4

Correspondence of the Justices (Aug. 8, 1973), re-

printed in HART AND WECHSLER’S THE FEDERAL

COURTS AND THE FEDERAL SYSTEM (3d ed.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-677

RICHARD ROE,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITIONER’S REPLY BRIEF

ARGUMENT

1. Despite its acknowledgement in the court of ap-

peals that the case was moot and that prior decisions

should be vacated, App. 25a, the United States now does

an about-face in this Court and argues that the case was

not moot when decided by the court of appeals, even

though the grand jury had already expired, and that de

cisions to the contrary by the Fifth, Eighth, and Ninth

Circuits are distinguishable. The government was right

in the court of appeals; it is wrong here.

2. First, the Brief in Opposition (“Opp.”) makes ab-

solutely clear that there is no “reasonable expectation”’

that Roe will be subpoenaed by a new grand jury. The

- —

government admits that the investigation pursuant to

which Roe was subpoenaed is no longer being “actively

pursued” and will not be unless some unspecified “devel-

opments” occur in a different case at some unspecified

point in the future. Opp. at 4 n.3. The government does

not even claim that if the “developments” occur and the

investigation is reactivated, a subpoena will issue to Roe.

The best the government can do is the lame assertion

that it has not “abandoned the possibility of pursuing the

investigation that led to the issuance of the subpoenas

before a new grand jury.” Opp. at 11. On this record,

there is nothing approaching a “reasonable expectation”

that the subpoena dispute will recur between Roe and

the United States. See Murphy v. Hunt, 455 U.S. 478,

482 (1982) (per curiam) (“The Court has never held

that a mere physical or theoretical possibility was suffi-

cient to satisfy the test stated in Weinstein.”)

1 Honig Vv. Doe, 484 U.S. 305 (1988), does not support the

government’s position. The Honig Court found a “reasonable ex-

pectation” that an emotionally disturbed student would again be

subject to a state policy of excluding disruptive emotionally dis-

turbed students from the classroom. The Court based its finding

of a “reasonable expectation” on the student’s “continued eligibility

for educational services under the [Education of the Handicapped

Act], the nature of his disability, and [the state’s] insistence that

all local school districts retain residual authority to exclude dis-

abled children for dangerous conduct.” Jd. at 318-19. The Court

concluded that “[i]n the absence of any suggestien that [the stu-

dent] has overcome his earlier difficulties, it is certainly reasonable

to expect, based on his prior history of behavioral problems, that

he will again engage in classroom misconduct.” Jd. at 320.

SEC v. Sloan, 436 U.S. 103 (1978), also relied upon by the govern-

ment, is similarly distinguishable. In Sloan, the Court found that

an action for review of an SEC order suspending the trading of a

corporation’s stock was not moot. The Court found a “reasonable

expectation” that the corporation would be subject to similar orders

in the future because the corporation “has, to put it mildly, a his-

tory of sailing close to the wind,” including two prior trading

suspensions in the preceding five years. Jd. at 109 & n.5.

In both Honig and Sloan, there was an ample basis in the record

from which to find a “reasonable expectation” that the dispute

3. The government’s attempt to distinguish Jn re

Grand Jury Proceedings (Larson), 785 F.2d 629 (8th

Cir. 1986), falls flat. The government notes that in Lar-

son there was no “reasonable expectation” that the wit-

nesses would be called before a new grand jury because

(1) the previous grand jury had returned an indictment

against Larson, the target of the investigation, (2) the

grand jury had been released, and (3) the government

made no response to the court of appeals’ mootness in-

quiry. Opp. at 11. If anything, the circumstances here

militate even more strongly in favor of a finding of moot-

ness: (1) the expired grand jury returned an indict-

ment against targets of the investigation, (2) the grand

jury has been released, and (3) rather than remain silent

as in Larson, the government actually conceded in the

court of appeals that the case was moot.?

4. Second, the government offers no basis to conclude

that grand jury contempt citations are “in [their] dura-

tion too short to be fully litigated prior to [their] cessa-

tion or expiration.” Weinstein v. Bradford, 423 U.S. 147,

149 (1975) (per curiam). Although the government con-

cedes that appeals from grand jury contempt citations

must be expedited under 28 U.S.C. 1657(a), it mislead-

ingly cites median resolution periods for non-expedited

would recur between the parties. Here, by contrast, there is ab-

solutely no such basis; before the court of appeals the government

conceded that the case was moot, and even in this Court the govern-

ment can say only that it “ha[s] not abandoned the possibility of

pursuing the investigation that led to the issuance of the subpoenas

before a new grand jury.” Opp. at 11.

2 The government relies upon United States v. Universal Mfg.

Co., 525 F.2d 808 (8th Cir. 1975), in which the Eighth Circuit

found that a dispute over a grand jury subpoena was not rendered

moot by the expiration of the grand jury. Opp. at 11-12 n.10. In

that case, however, the court rested its decision on its “under-

standing” that a “new grand jury is continuing the investigation

conducted by its predecessor.” /d. at 811 n.2. There is absolutely

no record basis for any such “understanding” here.

civil appeals to suggest that grand jury contempt anpeals

often could not be resolved during the grand jury’s stand-

ard eighteen-month term. Opp. at 7 n.7. Criminal ap-

peals—which, like appeals from contempt citations, must

be expedited—present a more apt analogy. The median

duration of a criminal appeal ranges from 6.0 months

in the Second Circuit to 13.8 months in the Ninth Cir-

cuit. Annual Report of the Director of the Administra-

tive Office of the United States Courts 156 (1988). Ap-

peals in cases involving prisoner petitions, which also

must be expedited, range in median duration from 5.6

months in the Fourth Circuit to 14.9 months in the Ninth

Circuit. Jd. at 155. The median for every circuit in both

types of case is well below the eighteen-month life span of

the grand jury. Indeed, this case demonstrates that con-

tempt citations involving non-incarcerated witnesses gen-

erally can be reviewed during the life of the grand jury;

Roe’s appeal was decided less than three months after it

was filed, and just eight months after the subpoenas were

issued.°

* The government advances the novel argument that the proper

inquiry under the “evading review” prong is not whether the chal-

lenged action would evade review if it happened again, but whether

it in fact evaded review in the prior litigation. Opp. at 4-7. The

government’s argument is wrong both as a matter of law and as a

matter of logic. First, prior decisions of this Court make clear

that the issue is whether the challenged action would evade review

if it occurred again. See, e.g., First National Bank of Boston

V. Bellotti, 435 U.S. 765, 774 (1978) (“capable of repetition”

exception applies because duration of challenged action “proved

too short a period of time for appellants to obtain complete judicial

review, and there is every reason to believe that any future suit

would take at least as long”) (emphasis added). Second, if the

inquiry were whether the action had evaded review in the prior

litigation, as the government claims, then the “evading review”

prong would virtually always be satisfied, since the mootness issue

only arises when the challenged action has expired or terminated

before review can be completed.

California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572

(1987)—the only case cited by the government to support this

argument—in fact undermines its position. Contrary to the govern-

5. In its efforts to distinguish Jn re Grand Jury Pro-

ceedings, 863 F.2d 667 (9th Cir. 1988), the government

misstates the basis for the Ninth Circuit’s holding that

grand jury contempt appeals are not of such “inherently

short duration” as to preclude review. Jd. at 669. The

government argues that even though the witness in Jn re

Grand Jury Proceedings was released pending appeal,

the Ninth Circuit nevertheless found the 30-day rule in

28 U.S.C. § 1826(b) applicable and rested its decision on

that ground. Opp. at 8-9. But the Ninth Circuit's re-

fusal to invoke the “capable of repetition, yet evading

review” exception was not based on application of the

30-day rule to the witness in that case, but on the court’s

conclusion that § 1826(b) provided a means by which

any future appeal, and contempt appeals generally, could

be resolved expeditiously. See 863 F.2d at 669-70. Con-

trary to the government’s suggestion, the opposite re-

sults reached by the Ninth Circuit and the court below

stem not from “potentially divergent” interpretations of

§ 1826(b), Opp. at 9, but from fundamentally different

understandings of the application of the mootness doc-

trine and the scope of the “capable of repetition, yet

evading review” exception.°

ment’s assertion, Opp. at 6 n.5, the Court in California Coastal did

not “reject[] the contention” that the party seeking review had to

demonstrate that “the case would probably again evade review if

a new suit were filed ....” Rather, the Court’s holding that the

case was not moot appears to rest on its view that the case would

evade review again if a new suit were filed. See 480 U.S. at 578.

Justice Scalia’s dissent takes issue with the majority's apparent con-

clusion, but (contrary to the government's suggestion, Opp. at 6-7

n.5) in no way implies that the majority based its decision on the

fact that the contested action had evaded review in the prior litiga-

tion. See 480 U.S. at 607 n.1 (Scalia, J., dissenting).

*The government concedes that the position it ascribes to the

Ninth Circuit on the scope of 28 U.S.C. § 1826(b) is at odds with

every circuit but one that has addressed the issue. Opp. at 5 n.4.

® The government argues that the court of appeals did not violate

the rule of United States v. Munsingwear, Inc., 340 U.S. 36 (1950),

6. Third, the government offers a series of purported

policy grounds for holding the “capable of repetition”

exception applicable here. Opp. at 13. None of these

grounds seems even remotely plausible; it is far-fetched,

for example, to suppose that holding this case moot will

cause potential witnesses to resist enforcement of sub-

poenas, or provoke district courts to hold contemnors in

jail pending appeal to ensure that contempt orders are

not vacated for mootness.

7. Even if the government’s policy arguments had

more strength than they do, they would not permit the

federal courts to exceed the limited power accorded them

under Article III to adjudicate “live case[s] or contro-

vers{ies}.” Burke v. Barnes, 479 U.S. 361, 363 (1987).

For almost two centuries, since this Court under Chief

Justice Jay refused to furnish an advisory opinion to

President Washington on a profound question of foreign

policy,® it has been a basic tenet of our constitutional sys-

tem that the federal courts cannot issue advisory opinions

in the absence of concrete “cases” or “controversies”

merely because the judges find the issues interesting or

the policies to be served worthwhile. The court of ap-

peals’ failure to follow that fundamental principle war-

rants summary reversal and a direction to vacate all

opinions and orders below. See, e.g., Great Western Sugar

Co. v. Nelson, 442 U.S. 92 (1979) (per curiam).

because it properly found that the case was not moot. Opp. at 12.

For the reasons set forth above, the government is wrong on the

mootness issue, and it is therefore wrong as well in its analysis of

the application of Munstngweay to this case.

* Correspondence of the Justices (Aug. 8, 1793), reprinted in

HART AND WECHSLER’Ss THE FEDERAL COURTS AND THE FEDERAL

SysTeM 66-67 (3d ed. 1988).

CONCLUSION

For the foregoing reasons, and for the reasons stated

in the Petition, Petitioner respectfully submits that the

petition for a writ of certiorari should be granted, the

judgment of contempt summarily reversed, and the case

remanded to the court of appeals with instructions to

order all opinions and judgments in this matter vacated

as moot.

Respectfully submitted,