United States v. Robison
505 F.3d 1208 (2008)
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Rule of Law:
When a Supreme Court decision is fragmented with no single rationale supported by a five-Justice majority and the opinions are not logical subsets of each other, lower courts may consider the views of dissenting Justices in conjunction with those concurring in the judgment to identify controlling legal standards that are supported by a majority.
Facts:
- Defendants Charles Barry Robison, McWANE, INC., James Delk, and Michael Devine were prosecuted for conspiracy to violate and substantive violations of the Clean Water Act (CWA).
- The alleged violations arose from the discharge of pollutants into Avondale Creek, a stream that indirectly feeds into the Black Warrior River.
- The Supreme Court issued Rapanos v. United States, a 4-1-4 fragmented decision, after the defendants' convictions, construing the terms 'navigable waters' and 'the waters of the United States' under the CWA.
- In Rapanos, Justice Scalia's plurality opinion (joined by four Justices) established a test for CWA jurisdiction based on 'relatively permanent' waters with a 'continuous surface connection,' while Justice Kennedy's concurring opinion (the fifth vote) proposed a 'significant nexus' test.
- The four dissenting Justices in Rapanos explicitly stated they would uphold CWA jurisdiction if either the plurality's or Justice Kennedy's test was satisfied.
- A government witness testified that there is a continuous, uninterrupted flow between Avondale Creek and the Black Warrior River.
Procedural Posture:
- Defendants Charles Barry Robison, McWANE, INC., James Delk, and Michael Devine were convicted by a jury in a federal district court (trial court) for conspiracy and substantive violations of the Clean Water Act.
- Defendants Robison, McWANE, INC., Delk, and Devine appealed their convictions to the United States Court of Appeals for the Eleventh Circuit (intermediate appellate court).
- An Eleventh Circuit panel (appellate court panel) vacated the defendants’ convictions, concluding that the district court's jury instructions were erroneous in light of Rapanos v. United States.
- The United States of America, as Plaintiff-Appellee and Cross-Appellant, filed a petition for rehearing en banc with the United States Court of Appeals for the Eleventh Circuit.
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Issue:
When interpreting a fragmented Supreme Court decision where no single rationale enjoys the assent of five Justices, does Marks v. United States compel lower courts to apply the 'narrowest grounds' test exclusively, precluding consideration of dissenting opinions that, when combined with concurring opinions, establish majority support for alternative standards?
Opinions:
Dissenting from denial of rehearing en banc - Wilson, Circuit Judge
No, Marks v. United States does not compel lower courts to apply the 'narrowest grounds' test exclusively, as the Marks framework is ill-suited to fragmented decisions where opinions are not logical subsets of each other and ignores the broader consensus among Justices. Judge Wilson argues that the panel's decision to exclusively adopt Justice Kennedy's 'significant nexus' test from Rapanos was erroneous and irreconcilable with Supreme Court and Eleventh Circuit precedents. The Marks 'narrowest grounds' rule only applies when one opinion is a logical subset of another, meaning the broader opinion would always agree with the result of the narrower one. In Rapanos, Justice Scalia's plurality test and Justice Kennedy's 'significant nexus' test are not subsets; they are different criteria, and neither is uniformly 'narrower.' The dissent highlights that the Supreme Court itself, in cases like Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., and the Eleventh Circuit, in Martin v. Dugger and McCullough v. Singletary, has analyzed dissenting opinions in combination with other opinions to identify legal principles supported by a majority of Justices. In Rapanos, the four-Justice plurality and the four-Justice dissent together form a supermajority of eight Justices who would find CWA jurisdiction if the plurality's test is satisfied. Therefore, the panel erred by conducting its harmless error analysis exclusively under Justice Kennedy's test and by instructing the district court to apply only that test on remand, especially when the record arguably establishes jurisdiction under the plurality's test.
Analysis:
The dissent from the denial of en banc review in Robison provides crucial guidance on interpreting fragmented Supreme Court decisions, particularly when the 'narrowest grounds' test of Marks v. United States is inadequate. It clarifies that Marks should not be rigidly applied to preclude considering dissenting opinions if those opinions, combined with concurring ones, form a clear majority consensus on a specific legal principle. This approach promotes a more nuanced 'head-count analysis' to discern Supreme Court holdings, preventing lower courts from overlooking valid jurisdictional bases supported by a substantial majority of the Court. The case encourages lower courts to explore all avenues supported by a majority of Supreme Court Justices, thereby potentially broadening the application of federal statutes like the Clean Water Act if either of multiple majority-backed tests is met.
