# Petition for Rehearing — United States v. White > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0534%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Rehearing - **Published:** January 1, 1971 - **Citation:** 402 U.S. 990 ## Text o ne oe Supreme Court, U.S FILED ee Cat ws { hi IN THE Supreme Court of the nited States October Term, 1970 — eee ee = 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 — INDEX PETITIONER HAS BEEN DEPRIVED OF ACCESS TO THE COURTS . THE ISSUE, AS FRAMED BY THE SOLICITOR, WAS GROSSLY MIS- LEADING aoe aa o 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, og ee eee United States Consttetren | Amendment" Sur wes Ci tw Tayte: Grarig Act, Sectron 7, 48 San 1389, empue mmm . ww ce a9 ——— 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. 1! e424: ali Ih Secretary‘s decison was limited to bpp gasdsungysesaeanie Hct lid til i qs ie He tele! eeTgStegzcteceg HiT eeeeereaeee lertaatad js 4 Eas 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 a at i gn ae pall 1 he} 7 ruk 1487, 93 L.Ed. 1928 (7949). The Court 3 Hi Wit i | it ; F : ai-*5 555 i it Att Tithe a l ? aa * 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). i z ¢ i ¥ fe idl ; ti : ! ‘ id g 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 * iia 48 E if i, ik i! 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 | a candi gee e™ 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 -< AARON TEP . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0534%3A3. Public record. Not legal advice.