Opposition Brief — Kissimmee River Valley Sportsman Ass'n v. City of Lakeland
Supreme Court brief2001
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No. 01-204
IN THE
Supreme Court of the United States
KISSIMMEE RIVER VALLEY SPORTSMAN ASSOCIATION,
Petitioner,
v.
CITY OF LAKELAND,
Respondent.
On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
BRIEF IN OPPOSITION
GeorceE N. MEros, JR.
Counsel of Record
CHANTA G ComBs
Lori S. RowE
Gray, Harris & Rosinson, P.A.
Attorneys for Respondent
301 South Bronough Street
Suite 600
Tallahassee, Florida 32301
(850) 577-9090
170061 cr)
COUNSEL PRESS
(800) 274-3321 + (800) 359-6859
i
QUESTIONS PRESENTED
The Circuit Court of Appeals for the Eleventh Circuit
concluded that the Federal Aid in Sport Fish Restoration Act
(Act), 16 U.S.C. §§ 777-777m, in conjunction with the
regulations promulgated at 50 C.F.R. §§ 80.1-80.27, does
not create a federal right to equal access for boats of common
horsepower ratings at recreational boating access facilities
funded under the Act and that, as a result, Petitioner,
Kissimmee River Valley Sportsman Association, failed to
state a cause of action under 42 U.S.C. § 1983. In reaching
this holding, the Eleventh Circuit necessarily concluded that
a federal regulation, standing alone, cannot create a federal
right enforceable under 42 U.S.C. § 1983.
The first question presented is whether the court of
appeals properly concluded that the Act, in conjunction with
its regulations, does not create a federal right to equal access
for boats of common horsepower ratings at recreational
boating access facilities funded under the Act and that,
therefore, Petitioner does not have any right enforceable
under 42 U.S.C. § 1983.
The second question presented is whether the court of
appeals properly concluded that a federal regulation, standing
alone, cannot create a federal right enforceable under
42 U.S.C. § 1983.
il
TABLE OF CONTENTS
Page
Chnmutnn FU 55 oo so ve aee Kees aes i
Teen C8 CI oo ov ks ca ee eee kee seers li
Table of Cited Authorities 2.0.2 cccccccscccceses lil
Statutes, Regulations, and Ordinances Involved in
AGS conc c ene e ce ehareveas seers tsacess l
Seema AE IG io ho hn eke ea hee cee ee eee 3
Reasons for Denying the Writ .................. 4
I. Since Blessing, Only the Eleventh Circuit
Has Considered Whether the Act and its
Implementing Regulations Create a Federal
peer Pre Cr ee re ee ie re 6
II. Any Conflict Among the Courts of Appeal is
Not “Real and Embarrassing.” ........... 11
III. Petitioner Asserts Error that is Inappropriate
for this Court’s Review. .........sseces: 13
Cem: oo Eee eae ea CTE Eke ede eeeee 15
ee eee ne
ees Dac Het neh eng ORD stn tam
ee
A eh Milk as AMR he NEES MD a ho TO en
lil
TABLE OF CITEDAUTHORITIES
Page
Cases:
Blessing v. Freestone, 520 U.S. 329 (1997) ..... passim
Boatman v. Livingston, 164 F.3d 286 (6th Cir. 1998)
Ga asa ok GRR badd ee hams Naa ode hee Oe 6, 10
Harris v. James, 127 F.3d 993 (11th Cir. 1997) .. passim
Kissimmee River Valley Sportsman Ass'n v. City of
Lakeland, 60 F. Supp. 2d 1289 (M.D. Fla. 1999)
= FT a a nr es ee er TD 3
Kissimmee River Valley Sportsman Ass'n v. City of
Lakeland, 250 F.3d 1324 (11th Cir. 2001) .... passim
Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997) .. 12
McMonagle v. Northeast Womens Ctr., Inc., 493 U.S.
ai ck Sy iad kook sak ak ee eS 13
Rice v. Sioux City Mem. Park Cemetery, 349 U.S.
EE Sco acu ae Ke Nas boda eee Ae ed eo D 4,11, 13
Suter v. Artist M., 503 U.S. 347 (1992) .......... 7
iv
Cited Authorities
Page
The Monrosa v. Carbon Black Export, Inc., 359 U.S.
gt, EEE PET Tee Tee rer rere 13
Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990) ;
Wright v. City of Roanoke Redevelopment and
Housing Authority, 479 U.S. 418 (1987) ....... 7
Statutes:
Oe Tg & ee es rr re ser arr 1, 3
16 U.S.C. § 777g(b)(1) ...... CUVEE TCE eT Tere 1
Oe Shas OE GUE 6 60505 seds car aendkeceen passim
Lakeland City Code Section 58-32 ............. y
Rules:
Sup. Ct. R. 10 EV pak UR ACR MARE OR ADEE RR ER ARTES 13, 14
eee Pee eee eT TT Tere LTT ore ee 4
eh Re ts, OE 505 ods 5 5 reek n ke neeneeas 4
Regulations:
Pe Gees Oe UAE ook Sboa 60 ta sdkeoRseees a
PO es bo ke a cee caawend cence 2, 4, 6, 9, 10
l
STATUTES, REGULATIONS, AND ORDINANCES
INVOLVED IN THE CASE
1. Section 1983 of Title 42 of the United States Code
provides, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress...
2. Section 777g(b)(1) of Title 16 of the United States Code
provides, in pertinent part:
Each State shall allocate 15 percent of the funds
apportioned to it for each fiscal year under section
777c of this title for the payment of up to 75
per centum of the costs of the acquisition,
development, renovation, or improvement of
facilities (and auxiliary facilities necessary to
insure the safe use of such facilities) that create,
or add to, public access to the waters of the United
States to improve the suitability of such waters
for recreational boating purposes .. .
:
2
3. Section 80.24 of Title 50 of the Code of Federal
Regulations provides, in pertinent part:
The State shall allocate at least 10 percentum of each
annual apportionment under Federal Aid in Sport
Fish Restoration Act for recreational boating access
facilities. All facilities constructed, acquired,
developed, renovated, or maintained (including
those existing structures for which maintenance is
provided) must be for the purpose of providing
additional, improved, or safer access of public waters
- for boating recreation as part of the State’s effort for
the restoration, management, and public use of sport
fish. Though a broad range of access facilities and
associated amenities can qualify for funding under
the 10 percent provision, power boats with common
horsepower ratings must be accommodated, and,
in addition, the State must make reasonable efforts
to accommodate boats with larger horsepower
ratings if they would not conflict with aquatic
resources management .. .
4. Section 58-32 of the Lakeland City Code provides, in
pertinent part:
It shall be unlawful for any person to operate any
airboat upon any of the lakes within the city...
For purposes of this section, “airboat” shall mean
any boat, sled, sea skiff, or swamp boat pushed,
pulled or propelled by air power generated by a
motor of more than 25 horsepower.
3
STATEMENT OF THE CASE
On February 12, 1999, Petitioner filed suit against the
City of Lakeland (City), seeking, inter alia, declaratory and
injunctive relief under 42 U.S.C. § 1983. Petitioner alleged
that the Federal Aid in Sport Fish Restoration Act (Act),
16 U.S.C. §§ 777-777m, and its regulations promulgated at
50 C.F.R. §§ 80.1-80.27 create a federal right to equal access
for boats of common horsepower ratings at recreational
boating access facilities funded under the Act. Petitioner
further alleged that Section 58-32 in the Lakeland City Code,
which prohibits the use of airboats on any lakes within the
City, violates the federal right to equal access created by the
Act and its regulations.
The City filed an Amended Motion to Dismiss, with a
Memorandum of Law, arguing, inter alia, that Petitioner
failed to state a cause of action for which relief could be
granted under 42 U.S.C. § 1983. Specifically, the City argued
that neither the Act nor its regulations, whether read together
or separately, create a federal right to equal access that is
enforceable under 42 U.S.C. § 1983.
On August 17, 2001, the district court granted the City’s
Motion and dismissed Petitioner’s suit with prejudice.
See Kissimmee River Valley Sportsman Ass'n v. City of
Lakeland, 60 F. Supp. 2d 1289 (M.D. Fla. 1999). (Pet. App.
at 9.)
On May 10, 2001, the court of appeals affirmed the
district court’s dismissal with prejudice. See Kissimmee River
Valley Sportsman Ass'n v. City of Lakeland, 250 F.3d 1324
(11th Cir. 2001). (Pet. App. at 1.) Specifically, the court of
appeals noted that a right to equal access for boats with
4
common horsepower ratings, if any existed at all, could only be
found in the language of 50 C.F.R. § 80.24 — not the Act itself.
See id. at 1327. The court concluded that this regulation was
“too far removed from [cjongressional intent” to create an
enforceable right: “Nothing in the [Act] suggests a right based
on equality and comparability. In fact, .. . [S50 C.F.R. § 80.24]
imposes new and ‘distinct obligations’ not found in the [Act]
itself ... [and] goes far beyond merely further defining or
fleshing out the context of any ‘federal right’ found in the [Act]
itself.” Jd. Accordingly, the court of appeals held that the Act
and its regulations do not confer a federal right to equal access
that is enforceable under 42 U.S.C. § 1983. See id.
This appeal ensued.
REASONS FOR DENYING THE WRIT
This Court should deny the Petition for Writ of Certiorari
because Petitioner has failed to identify any “real and
embarrassing conflict of opinion and authority” among the
United States courts of appeal. See Rice v. Sioux City Mem.
Park Cemetery, 349 U.S. 70, 79 (1954); Sup. Ct. R. 10(a).
Likewise, Petitioner has failed to raise any “special and
important” questions of federal law that this Court has not yet
answered. See Rice, 349 U.S.at 74; Sup. Ct. R. 10(c).
Specifically, the Petition is deficient for one basic reason:
it completely ignores the import of Blessing v. Freestone,
520 U.S. 329 (1997), in analyzing the questions presented.
In Blessing, this Court illuminated the circumstances under
which a federal regulation, in conjunction with a federal
statute, can create a federal right enforceable under 42 U.S.C.
§ 1983. See 520 U.S. at 345. Consistent with this Court’s
precedent in determining the existence of a federal right,
i
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5
Blessing requires courts to first examine a statute’s underlying
congressional intent before turning to that statute’s
implementing regulations. See id. After ascertaining whether
Congress intended to create a federal right, courts must then
determine whether the statute’s regulations adequately
implement that congressional intent or whether the link
between the regulation and the statute is simply too tenuous
to give rise to an enforceable federal right that is based, in
part, on a federal regulation. See id.
In light of Blessing, this Court should deny the Petition
for three specific and compelling reasons. First, only the
Ninth and the Eleventh Circuit Courts of Appeal have
considered whether the Act and its regulations create a federal
right to equal access that is enforceable under 42 U.S.C.
§ 1983. To the extent that the Ninth Circuit conflicts with
the Eleventh Circuit, the Ninth Circuit’s analysis is
- incomplete because it pre-dates Blessing. As a result, the
Ninth Circuit fails to adhere to Blessing’s requirement that
courts establish a clear link between congressional intent and
a statute’s implementing regulations before enforcing a
federal right that is based, in part, on a federal regulation.
Second, since Blessing, only the Eleventh, Seventh, and Sixth
Circuit Courts of Appeal have considered the broader issue
of whether federal regulations, by themselves, can create a
federal right enforceable under 42 U.S.C. § 1983. Because
the Eleventh and Seventh Circuits are consistent with each
other and with Blessing and only the Sixth Circuit is not, no
widespread conflict exists among the courts of appeal.
Finally, Petitioner ultimately seeks relief based on the
perceived misapplication of a properly stated rule of law,
thereby rendering this Court’s review unnecessary.
6
I. Since Blessing, Only the Eleventh Circuit Has
Considered Whether the Act and its Implementing
Regulations Create a Federal Right.
Only the Eleventh Circuit and the Ninth Circuit have
considered whether the Act and its implementing regulations
create a federal right to equal access for power boats of common
uorsepower ratings. See Kissimmee River Valley Sportsman
Ass'n v. City of Lakeland, 250 F.3d 1324 (11th Cir. 2001);
Buckley v. City of Redding, 66 F.3d 188 (9th Cir. 1995). While
the Eleventh Circuit held that the Act and its implementing
regulations do not create a federal right to equal access, the
Ninth Circuit did find that a federal right exists. Compare
Kissimmee River Valley, 250 F.3d at 1326-27 with Buckley, 66
F.3d at 192-93. To the extent that Buckley conflicts with
Kissimmee River Valley, the Ninth Circuit’s analysis is
incomplete because it pre-dates this Court’s decision in Blessing.
As a result, the Ninth Circuit fails to adhere to Blessing’s
requirement that courts establish a clear link between
congressional intent and a statute’s implementing regulations
before enforcing a federal right that is based, in part, on a federal
regulation.
In its opinion, the Eleventh Circuit noted that the purpose
of the Act is to provide funding for fish restoration and
management projects and for creating and improving public
access to the waters of the United States. See Kissimmee River _
Valley, 250 F.3d at 1326-27; Buckley, 66 F.3d at 192. Because
the Act itself does not mention equal access for boats of common
horsepower ratings, the Eleventh Circuit necessarily turned to
the Act’s regulations, specifically 50 C.F.R. § 80.24, to identify
this right. See Kissimmee River Valley, 250 F.3d at 1326-27.
Therefore, the Eleventh Circuit had to expressly determine
whether 50 C.F.R. § 80.24, either by itself or in conjunction
with the Act, created a federal right enforceable under 42 U.S.C.
§ 1983.
ee
7
To answer this question, the Eleventh Circuit relied on
its own precedent, Harris v. James, 127 F.3d 993 (11th Cir.
1997), which was issued about six months after Blessing.
See Kissimmee River Valley, 250 F.3d at 1326-27. Harris, in
turn, evaluated Blessing and this Court’s long-standing test
to determine whether a federal statute creates a federal right
enforceable under 42 U.S.C. § 1983:
Such an inquiry turns on whether the provision in
question was intend[ed] to benefit the putative
plaintiff ... If so, the provision creates an
enforceable right unless it reflects merely a
congressional preference for a certain kind of
conduct rather than a binding obligation on the
government unit ... or unless the interest the
plaintiff asserts is too vague and amorphous such
that it is beyond the competence of the judiciary
to enforce.’
Harris, 127 F.3d at 999 (quoting Wilder v. Virginia Hosp.
Ass'n, 496 U.S. 498, 509 (1990)).
This test has governed § 1983 federal rights analysis as
it applies to statutes for many years. See Wright v. City of
Roanoke Redevelopment and Housing Authority, 479 U.S.
418, 423-24 (1987); Wilder v. Virginia Hospital Ass'n, 496
U.S. 498, 508-10 (1990); Suter v. Artist M., 503 U.S. 347,
355-57 (1992); Blessing, 520 U.S. at 340-41. Notably,
Blessing did not change this analysis; it simply clarified that
congressional intent is the cornerstone of any federal rights
analysis — even when a federal regulation, and not a statute,
1. After applying this three-prong analysis, courts must also
consider whether the statute at issue explicitly or implicitly forecloses
enforcement under 42 U.S.C. § 1983. See Blessing, 520 U.S. at 341.
8
seemingly establishes the federal right that a putative plaintiff
seeks to enforce under 42 U.S.C. § 1983. See Blessing, 520
US. at 345. :
After examining the contours and development of this
three-prong test, the Harris court concluded that only
Congress can create a federal right enforceable under
42 U.S.C. § 1983. See Harris, 127 F.3d at 1011. Because the
three-prong test ultimately probes statutes for their underlying
congressional intent, Harris rejected the notion that this test
could be applied exclusively to federal regulations. See id.
at 1008-10 (“To hold otherwise would be inconsistent with
the driving force of the Supreme Court precedent requiring
a [c]ongressional intent to create federal rights and with the
Supreme Court directive that courts must find that Congress
has unambiguously conferred federal rights on the plaintiff.”’).
Finally, Harris concluded that a federal regulation, standing
alone, can never create a federal right. See id. at 1011.
Instead, Harris, consistent with Blessing, requires
litigants to first evaluate the controlling statute under the
three-prong test to determine whether Congress has indicated
an intent to create a federal right. See Harris, 127 F.3d at
1009. If not, then the inquiry ends, and the regulations
become irrelevant tothe federal rights analysis. See id.
If, on the other hand, Congress did suggest an intent to create
a federal right, then courts may examine the relevant
regulations to determine whether those regulations explain
the federal right intended by Congress. See id. If so, then the
statute, in conjunction with its regulations, may create a
federal right enforceable under 42 U.S.C. § 1983. See id.
If the regulation, however, goes beyond explaining the
statutory right and imposes obligations new and distinct from
the statute, then the “regulation is too far removed from
congressional intent to constitute a ‘federal right’ . . .” Jd.
9
The Harris court’s analysis does not create a new test
in § 1983 jurisprudence, nor is it inconsistent with this
Court’s precedent. (Pet. at 6-7.) To the contrary, Harris and
Kissimmee River Valley adhere to this Court’s requirement
in Blessing that congressional intent guide a court’s federal
rights analysis — even when the federal right seemingly
arises from a federal regulation. See Harris, 127 F.3d at 1008-
09; Kissimmee River Valley, 250 F.3d at 1326-27. Likewise,
the Eleventh Circuit’s analysis is not “premised upon a
wariness of administrative regulations” as Petitioner suggests,
(Pet. at 7), but, instead, emphasizes that federal regulations
do play a role in both determining and then explaining
congressional intent to create a federal right. See Harris, 127
F.3d at 1011; Kissimmee River Valley, 250 F.3d at 1326-27.
Finally, the test articulated by Harris and implemented by
Kissimmee River Valley is not devoid of “any useful analytical
precision.” (Pet. at 7.) Courts have consistently relied on
federal regulations to determine congressional intent and
interpret statutory provisions. See Harris, 127 F.3d at 1011-
12. In short, Petitioner’s criticisms of Harris and Kissimmee
River Valley are without merit.
Following Harris and Blessing, the Eleventh Circuit in
this case first determined that the Act, standing alone, does
not suggest a right to equal access for power boats of common
horsepower ratings. See Kissimmee River Valley, 250 F.3d at
1327. Then, the court concluded that 50 C.F.R. § 80.24
imposes new and distinct obligations from the Act and is,
therefore, “too far removed” from congressional intent to
constitute a federal right. Jd. The court of appeals concluded
that the Act and its regulations do not create a federal right
of equal access enforceable under 42 U.S.C. § 1983. See id.
10
In Buckley, the Ninth Circuit applied the three-prong
test at once to the Act and its regulations. See 66 F.3d at 192.
Upon applying the three-prong test, the Ninth Circuit concluded
that the Act, in conjunction with its regulations, confers a federal
right to equal access. See id. at 192-93.
Because each court of appeals places different emphasis
on the Act’s regulations to determine whether a federal right
exists, the explicit holdings of Kissimmee River Valley and
Buckley conflict. Compare Kissimmee River Valley, 250 F.3d at
1327 with Buckley, 66 F.3d at 192. Buckley seemingly applies
the three-prong test at once to both the Act and its implementing
regulations, thereby treating the regulations and the Act similarly.
See Buckley, 66 F.3d at 192. The Eleventh Circuit, on the other
hand, declines to apply the three-prong test directly to the Act’s
implementing regulations and, instead, determines first whether
Congress intended to create a federal right and then looks
only secondarily to the regulations to define that federal
right. See Kissimmee River Valley, 250 F.3d at 1326-27.
See also Harris, 127 F.3d at 1008-10. This discrepancy between
the courts of appeal rests in the fact that the Ninth Circuit was
without this Court’s emphasis in Blessing that congressional
intent is the cornerstone of any § 1983 federal rights analysis
— even when the federal right seemingly arises from a federal
regulation. See Blessing, 520 U.S. at 345. Accordingly, the Ninth
Circuit fails to first determine whether the Act expresses a
congressional intent to create a federal right to equal access and
second, whether the Act’s implementing regulations are
sufficiently linked to the Act’s underlying congressional intent
to create a federal right to equal access based on 50 C.F.R.
§ 80.24. In other words, Buckley fails to determine whether the
Act’s regulations implement the Act’s congressional intent or
go beyond it. Therefore, the Buckley analysis is incomplete under
§ 1983 jurisprudence since Blessing.
11
As aresult, any conflict that may exist between the Ninth
and Eleventh Circuits is not as direct as Petitioner would
have this Court believe. To the contrary, any conflict that
exists is minimal. Only the Eleventh Circuit has considered
whether the Act and its regulations create a federal right to
equal access in light of Blessing. Therefore, no “real and
embarrassing conflict of opinion and authority” exists among
the courts of appeal, and this Court should deny the Petition.
Rice v. Sioux City Mem. Park Cemetery, 349 U.S. 70, 79
(1954).
II. Any Conflict Among the Courts of Appeal is Not
| “Real and Embarrassing.”
The Petition seeks to invoke this Court’s certiorari
jurisdiction by pointing to an alleged “widespread debate”
among the courts of appeal about whether a federal regulation
can create a federal right under 42 U.S.C. § 1983. (Pet. at 8-
9.) The Petition, however, fails to cite a single case that has
examined this issue since Blessing. (Pet. at 8-9.) Despite the,
Petition’s oversight, only three courts of appeal — the
Eleventh, Sixth, and Seventh Circuits — have considered
whether a federal regulation, by itself, can create a federal
right in light of Blessing. Because the majority of the courts
of appeal have not had ample time to apply and develop _
Blessing’s analysis, any conflict that exists among the courts
of appeal is not “real and embarrassing” and, therefore, not
sufficient to invoke the “limited reviewing power to which
| this Court is confined.” Rice, 349 U.S. at 70, 74, 79.
Since Blessing, the Eleventh Circuit has held that because
congressional intent is “the driving force” of this Court’s
federal rights analysis, a fedeval regulation, by itself, can
never create a federal right. See Harris, 127 F.3d at 1008-
ee See
12
09, 1011; Kissimmee River Valley, 250 F.3d at 1326-27.
In reaching its conclusion, the Eleventh Circuit noted that
regulations may play an important role in explaining
congressional intent to create a federal right but may not
impose new and distinct obligations rising to the level of a
federal right. See Harris, 127 F.3d at 1009-17
Without explicitly confronting whether a federal
regulation, by itself, may create a federal right, the Seventh
Circuit has indicated its agreement with the Eleventh Circuit’s
analysis of the issue. See Marie O. v. Edgar, 131 F.3d
610, 620 n.17 (7th Cir. 1997). In Marie O., the Seventh
Circuit applied the three-prong test to the statute at issue to
determine whether Congress intended to create a federal right.
See id. at 618-22. The court then relied on the statute’s
regulations to define and explain that right. See id. at 620.
Like Blessing, Harris, and Kissimmee River Valley, the
Seventh Circuit noted that congressional intent is the focus
of a § 1983 federal rights analysis and that regulations may
only “further define and delineate the meaning of a statute
to aid [a court’s] analysis regarding whether the statutory
and regulatory scheme creates rights enforceable under
§ 1983.” Jd. at 620 n.17.
In Boatman v. Livingston, however, the Sixth Circuit
explicitly rejected the Eleventh Circuit’s analysis in Harris.
See 164 F.3d 286, 288-89 (6th Cir. 1998). Instead, the Sixth
Circuit held that federal regulations have the force of law
and, therefore, may create federal rights under 42 U.S.C.
§ 1983. See id. The court failed to cite Blessing and relied
on precedent that pre-dates Blessing. See id. Even worse,
the Sixth Circuit failed to analyze whether any congressional
intent existed to create a federal right enforceable under
42 U.S.C. § 1983. Instead, the Sixth Circuit seemed to adopt
SARIS PARRA IL
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13
a bright-line test: any valid regulation may create a federal
right enforceable under 42 U.S.C. § 1983. This Court’s
statement in Blessing, however, was clear: “our inquiry
focuses on congressional intent.” Blessing, 520 U.S. at 341.
Nevertheless, the Sixth Circuit, and now Petitioner, have
chosen to ignore this analysis.
One errant court does not create a “widespread debate”
among the courts of appeal. Because the majority of the courts
of appeal have not yet applied Blessing 's analysis to a federal
regulation, the passage of time may further illuminate or
completely extinguish the differences created by the Sixth
Circuit’s “force of law” analysis. See Rice, 349 U.S. at 77;
The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180,
184 (1959) (“Resolution here . . . can await a day when the
issue is posed less abstractly.”). See also McMonagle v.
Northeast Women’s Ctr., Inc., 493 U.S. 901, 901-03 (1989)
(White, J., dissenting) (noting several cases in which this
Court has declined to exercise jurisdiction where only one
or two courts of appeal appear to conflict). Therefore, this
Court should deny the Petition to allow the issue to percolate
and further develop in the lower courts.
III. Petitioner Asserts Error that is Inappropriate for
this Court’s Review.
At bottom, Petitioner ultimately asks this Court to adopt
a test that “simply requires consideration of the statute and
regulation together.” (Pet. at 11.) Because this is exactly the
test that Blessing, Harris, and Kissimmee River Valley
require, Petitioner seeks to invoke this Court’s jurisdiction
based on a perceived misapplication of a properly stated rule
of law. As expressly recognized by this Court in its own rules,
certiorari review is inappropriate to address such errors.
See Sup. Ct. R. 10.
14
Specifically, Blessing, Harris, and Kissimmee River
Valley require courts to first ascertain whether congressional
intent exists to create a federal right and then to determine
whether the regulations are sufficiently linked to that
congressional intent. See Blessing, 520 U.S. at 345; Harris,
127 F.3d at 1009; Kissimmee River Valley, 250 F.3d at 1326-
27. In other words, these cases already require what Petitioner
is seeking here: that courts consider Statutes and their
regulations together under a § 1983 federal rights analysis.
The court of appeals below applied this analysis to the Act
and its regulations to determine that a federal right to equal
access does not exist. See Kissimmee River Valley, 250 F.3d
at 1326-27. Petitioner simply disagrees with this outcome.
Therefore, Petitioner’s asserted error is not based on an
important question of federal law that has yet to be
determined. Instead, Petitioner complains that the court of
appeals misapplied law that has already been established by
Blessing, Harris, and Kissimmee River Valley. <nis type of
error is inappropriate for this Court’s review. See Sup. Ct. R.
10. Accordingly, this Court should deny the Petition. See id.
15
CONCLUSION
This Court should deny the Petition for Writ of Certiorari.
Respectfully submitted,
GeorcE N. Meros, JR.
Counsel of Record
CuHANTA G. CoMBS
Lori S. ROWE
Gray, Harris & Rosinson, PA.
Attorneys for Respondent
301 South Bronough Street
Suite 600
Tallahassee, Florida 32301
(850) 577-9090
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