Petition for Rehearing — United States v. White

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Supreme Court, U.S

FILED

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IN THE

Supreme Court of the nited States

October Term, 1970

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No, 975

BARNEY R, COLSON, ET AL,

Petitioners,

Vv.

WALTER J, HICKEL, Secretary of the Interior

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

PETITION FOR REHEARING

RICHARD HILDRETH, Esq.

JAMES E, RODGERS, Esq.

Securities Building

729 Fifteenth Street, N.W.

Washington, D.C, 20005

Attorneys for Petitioner

Colson, et al,

Tet CASILL AD PHESS INC 1717 ® Street NW Waatington 0 © 22d 1220

vee nalts Peake

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INDEX

PETITIONER HAS BEEN DEPRIVED OF

ACCESS TO THE COURTS .

THE ISSUE, AS FRAMED BY THE

SOLICITOR, WAS GROSSLY MIS-

LEADING aoe aa

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TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner,

387 US. 136, 87 S. Ct. 1507,

18 L. Ed. 2d 681 (1967)

Adams v. Witmer,

271 F. 2d 29, 9th Cir. (1958) .

Brownell v. We Shung,

352 US. 180, 77 S. Ct. 252,

1 L. Ed. 2d 225 (1956)

Citizens To Preserve Overton Park, Inc., et al v. Volpe,

U.S. Supreme Court, Case No. 1066,

March 2, 1971 Pas

Coleman v, United States,

363 F.2d 190, 9th Cir. (1966)

Converse v. Udail,

399 F.2d 616, 9th Cir. (1968), cert. den.

393 US. 1025, 89 S. Ct. 635, 21 L.Ed. 2d 569 |

Ferry v, Udall,

336 F.2d 706, 9th Cir. (1964), cert. den.

381 US. 104, 85 S. Ct. 1449, 14 L. Ed. 2d 286”.

3,5

Pinch v. United States,

387 F.28 13, 1Oth Cr. (1968), cont. den. 2

390 US. 1012, 68S. Cl. 1262, BL. B8. ie? |.

Hefhetman + Uedet

308 F.24 109, tO Ce. CSF sls

bckes vy. Virginia Cotoreec Devetapment Corp

353 US. 699, $5 S. Cr. BBB,

So

Larson v. Denvestic and Foreign Commerce Comporation,

o3t.be.19mqee www www

Midway v. Keaton,

183 US. 692, 22 S. Ck. 251,

43..64.947q¢I982) ... .. 2. 2. ee.

S wthwestem Peroleem Cosporenon dedi

361 F. 28650, 1G Cer. (1986) ll tt ti #ti (#t(‘“

State .q \eskington v. Udell.

417 F.2d 1300, 9 Cer. (198%). ww stig

West Coast Exploration Co. v. McKay.

213 F.24-582, CA DC. (1954), cert. den.

347 US. 989, 74 S. Ci. 850,

OBL. 64.0823 ¢9954) .. 2... 2. 2 ees

Wilber v. U.S. ex rel. Krushnic,

280 US. 306, 50S. Cr. 163,

ML. 64.405 (999) ... 2... 2 ee.

Yekus v. United States.

321 US. 414, 64 S. Ct. 660,

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United States Consttetren |

Amendment"

Sur wes Ci

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Tayte: Grarig Act, Sectron 7, 48 San 1389,

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———

WALTER J. HICKEL. Secretary of the Interior.

, Respondent. ~

PETITION FOR WRIT OF CERTIORARI TO THE

“UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

The Petitioner, Barncy R. Colson, ct al., reapectfully

moves this court for an onder vacating its denial of the

Petition of Certiorari, entered on February 22. 1971, and

requests that this Court grant the said petition. Petitioner

submits that there are apecial and important reasons for

the requested action and that a aubsoquent decision of

this Court supports the request.

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Secretary‘s decison was limited to

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Cert. denied 347 U.S. 989, 74 S.Ct. 850, 98

v. Udall, 399 F.24 616.

. 1025, 89 S.Ct.

decisions of the Secre-

the applicability of the

was ;

ateo Foster v Seaton, 1959, 100 US. App

DC. 283, 271 F.2d B30, cited with apparent

approval in West vo Humboldt Placer Mining

Co, 1963, 371 US. 334, 338 0.7. 88 SO.

379. 9L.Bd.24 350. CY. Crowne. United

States, 10 Cir., 1964, 885 F.24 918"

view pursuant to Section 761 of the Administrative Pro-

codure Act (§ USC Sect. 701) of decisions of the Secre-

Colson presented to this Court the qgpstion as to

Yet the lower Court and the Fifth Circuit are now

free to discard this established principle of law. at least

insofar as the Secretary of the Interior is concerned. This

would appear to be grossly out of step with the present

day concept of justice and.due process for it means. that

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1487, 93 L.Ed. 1928 (7949). The Court

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* Reversed on other grounds, 390 US. 599, 88 S.Ci. 1327. 30

L.Ed. 24 170 (1968), without effect on the portion of the Cole-

was not questioned by the Supreme Court, See Converse v. Udall.

Sth Cir. (1968) 399 F.2d 616, Cert. Den. 393 US. 1025, 89 S.Ci.

635, 2951 Bd.24 S69 (1969).

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Therefore, the denial of access to the courts in onder

to obtam judicial review & a denial of due process and in

‘Conflict with the decisions of this Court as well as

with decisions in the Ninth and Tenth Circuits and the

District of Columbia Circuit.

The tame. As Framed By The Solicitor.

Perhaps the difficulty in this case is the fact that

the Solicitor General chose to distort the issue+5 The

question presented. according to the Solicitor was:

“Whether a mit to compel the Secretary

of the Interior to ixsue @ patent to par-

ticular public lands of the United States is an

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Nevertheless the lower Court held. with no clabora-

tron whatsoever. that “this action is 2 suit against the

United States, which & not a party and has not waived

fact. a suit against the United States. to which it had not

given its consent.” (Emphasss supplied). But none of

the decisions cited by the Fifth Circuit involved an

admunistrative proceeding and no Fifth Circuit decisions

and certainly no decisions of the Supreme Court “re-

quire” a holding that the action was a suit against the

United States and: therefore. precluded by the Doctrine

of Sovereign Imaunity. indeed, such a determination is

inconceivable in light of this Court's consistent position

with respect to the night of a citizen w& obtain judicial

review of an arbitrary decision by an administrative

agency.

The most recent case that made this abundantly

clear was handed down by this Court on March 2, 1971.

Cinzeéens To Preserve Overton Park, Inc., et al. v. Volpe.

Secretary Department of Transportation, et al., (Case No.

1000). There. a group of private citizens as well as

conservation organizations asgued that the Secretary Wid

violated the Department of Transportation Act and the

Federal Aid to Highways Act in authorizing construction

of an interstate highway through a public park in

Memphis. Tennessee.

This Court stated that the threshold question

whether petitioners were entitled to any judicial review

“was easily answered” pointing out that Section 701

© The same lower Court had earlier rejected the defense of

sovereign immunity in denying the Secretary's Motion to Dismiss

which was argued in Court on the very same facts.

judicial review. With respect to the question of discre-

tionary action, this Court pointed out that it is a very

narrow exception and is applicable only in those rare

cases where statutes are drawn in such broad terms that.

in a given case there is no law to apply. Such is not the

case here.

Thus, with these guidelines in mind and with the

prior decisions of this Court in the cases of Abbott

Laboratories v. Gardner, 387 U.S. 136 87 S.Ct. 1507, 18

L.Ed. 2d 681 (1967) and Brownell v. We Shung, 352

U.S. 180, 77 S.Ct. 252, 1 L.Ed. 2d, 225 (1956) there

should be no question that Colson is, in fact, entitled to

judicial teview.

This Court should not allow to stand the position

taken by the Fifth Circuit that decisions of this Court

require a holding that a decision of the Secretary of the

Interior, (no matter how arbitrary) is not subject to

review by the judiciary. The Fifth Circuit decision is

wrong. No decision of this Court has ever reached such a

conclusion.

The denial by this Court of the petition for certi-

orari results in a denial of due process contrary to .

Constitutional safeguards and protective legislative

statutes such as the Administrative Procedure Act. Fur-

ther, it perpetuates a clear conflict between the Fifth

Circuit and decisions of other circuits as well as decisions

of this Court.

aan RE IR a a seg eee RET

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Judicial review should not be dependent on the

Circuit in which judicial relict is sought. This Court has

never tolerated the cxmtence of such a condition. It

should not do so now.

CONCLUSION

For the reasons set forth above. as well as those

contained in the Petition for Writ of Certioran, the

petitioner prays that the Court grant rehearing of the

order of denial, vacate that onder, grant the petition, and

review the judgment and opinion below.

Respectiully submitted.

BARNEY R. COLSON, ET AL

By 's/ Rechard Hildreth

Richard Hildreth

By /s/ James E. Rodgers

James EF. Rodgers

MARCH 2, 1971

CERTIFICATE OF COUNSEL

As counsel for the petitioner, | hereby certify that

this Petition for Rehearing is presented in good faith and

not for delay and is restricted to the grounds specified in

Rule 58(2). '

RICHARD HILDRETH

Attorney for Petitioner

Appendix

Fifth Carcutt Notice Withholding Decnson

Pending Certeoran in State of Washington v. Udall.

417 F.2d 1310, 9 Circuit, 1969. and

Solicitur General Notice Not To

Seek Certiorari Therein

ors

;

Fad

Mr. Richard Hildreth March 26. 1970

Attormey at Law

Securities Bidg.. Sth Floor 0

729 Filteenth St.. N. W.

Washington, D.C. 20005

Re: No. 26212 Barney R. Colson, et al, vs. Walter J.

Mickel, ete.

Gentlemen:

At the direction of the court | am writing to advise that

the decision in the above referenced case ts being with-

held pending disposition of certiorari in State of Wash-

ington vs. Udall 417 F.2d 1310, 9 Cir., 1969.

As soon as a decision is rendered in this court in this

case, a copy of the printed opinion will be forwarded to

you.

Very truly yours,

Edward W. Wadsworth, Clerk

= ‘Léia G. Canteae

LGC :cms

cc: Mr. Edward F. Boardman . is

Hon. Ramsey Clark

Mr. Herbert Pittle

Mr. Roger P. Marquis

Mr. Shiro Kashiwa

LOR LLLOEL LLG LOLA LEONEL ALE, OOO LIE ELL LEE IT EEL ES

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