United States v. 2006-01-03 | 03-70472 | SANTOS VPEOPLE OF THE TERRITORY OF GUAM | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ANTHONY DUENAS SANTOS,
Petitioner, No. 03-70472
v. D.C. No.
 CR-00-00006THE PEOPLE OF THE TERRITORY OF
GUAM, OPINION
Respondent. 
Certiorari to the Supreme Court of Guam
Argued and Submitted
April 30, 2004—Saipan, Northern Mariana Islands
Filed January 3, 2006
Before: Mary M. Schroeder, Chief Judge,
Alfred T. Goodwin and J. Clifford Wallace, Circuit Judges.
Opinion by Judge Goodwin;
Concurrence by Judge Wallace
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COUNSEL
David J. Highsmith, Hagatna, Guam, for the petitioner.
B. Ann Keith, Assistant Attorney General, Hagatna, Guam,
for the respondent.
OPINION
GOODWIN, Circuit Judge:
Anthony Duenas Santos seeks review of his conviction in
the Guam Superior Court on charges of aggravated murder
and possession and use of a deadly weapon. His convictions
were affirmed by the Guam Supreme Court. This appeal is
dismissed for want of jurisdiction.
The Guam Superior Court had original jurisdiction pursu-
ant to 7 GUAM CODE ANN. § 3105. The Guam Supreme Court
had jurisdiction pursuant to 7 GUAM CODE ANN. § 3107(b).
Santos timely filed his petition for writ of certiorari in this
court pursuant to former 48 U.S.C. § 1424-2, and his petition
was granted on June 18, 2003. We calendared the case for
oral argument on April 30, 2004. At the close of argument, we
ordered submission for decision, and initiated the lengthy pro-
cess of obtaining the record from Guam.
On October 30, 2004, Congress amended 48 U.S.C.
§ 1424-2 striking the language granting to this court, for a
period of time which had not yet expired, “jurisdiction to
review by writ of certiorari all final decisions of the highest
court of Guam from which a decision could be had.” Act of
Oct. 30, 2004, Pub. L. No. 108-378, § 2. The question now
presented is whether the jurisdiction previously granted by
§ 1424-2, and existing at the time certiorari was granted, the
briefs were filed, and the case was argued and submitted,
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evaporated upon the enactment date of the repeal, or has con-
tinued to exist until the pending appeal could be decided.
[1] In 1952, the Supreme Court was confronted with a simi-
lar question and held that when a jurisdictional statute under
which an action had been properly filed was repealed, without
any reservation as to pending cases, all such pending cases
were to be dismissed. Bruner v. United States, 343 U.S. 112,
115-117 (1952). That holding was reinforced when cited with
approval in a litigation setting that did not involve the juris-
diction of a court to decide a case. Landgraf v. USI Film
Products, 511 U.S. 244, 274 (1994). The court ruled on the
effect of a statute upon an action that was pending in court on
the date of enactment, but which arose out of events that had
transpired before the statute creating a remedy had been
enacted. 511 U.S. 244. The Landgraf case was dealing with
a statute silent on the question of retroactivity, and ruled that
unless retrospective effect is expressed by Congress, it will
not be presumed. Id. at 280.
Because the question before us is the survival of jurisdic-
tion to decide cases after that jurisdiction has been withdrawn,
we look to Bruner, rather than to Landgraf, for relevant prece-
dent. In Bruner, the Supreme Court cited inter alia, Ex parte
McCardle, Bruner, 343 U.S. at 116-17 (citing, inter alia, 74
U.S. (7 Wall.) 506, 514 (1868)), which holds: “Jurisdiction is
the power to declare the law, and when it ceases to exist, the
only function of the court is that of announcing the fact and
dismissing the [case].” Ex parte McCardle, 74 U.S. (7 Wall.)
at 514.
[2] Absent another directive, we are bound to apply
Bruner’s reasoning that a jurisdiction-withdrawing statute
does not “alter[ ] the nature or validity of” rights or liabilities
but “simply reduce[s] the number of tribunals authorized to
hear and determine such rights and liabilities.” Bruner, 343
U.S. at 117. In Bruner, the statute in question removed the
jurisdiction of federal district courts over certain civil actions
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brought by employees of the United States, but preserved
jurisdiction in the Court of Claims for those actions. Id. at
115.
There is no principled distinction between Bruner’s
jurisdiction-withdrawing statute and this one, which removes
the jurisdiction of the Ninth Circuit Court of Appeals to hear
appeals from Guam courts but preserves jurisdiction over the
same cases in the Guam court system and review by certiorari
in the United States Supreme Court.
We have held that a jurisdiction-withdrawing provision of
AEDPA expressing no other effective date barred review of
a petition pending before us on the date of enactment. See
Duldulao v. INS, 90 F.3d 396, 399 (9th Cir. 1996) (applying
Landgraf to hold AEDPA section 440(a) retroactive because
it “affects the power of the court rather than the rights and
obligations of the parties”); see also Nakaranurack v. United
States, 231 F.3d 568, 571 (9th Cir. 2000) (applying
Duldulao).
[3] Here, Congress has amended the distribution of appel-
late jurisdiction in the Territory of Guam without expressing
an intent as to the effective date of its new statute. We know
only that before we could obtain the lengthy record and agree
upon a disposition of a certiorari review then pending before
our court, Congress had taken away our power to hear the
case. The withdrawal of our power to hear the case carried
with it the destruction of our power to decide the case.
Bruner, 343 U.S. at 115-117; see also Ex parte McCardle, 74
U.S. (7 Wall.) at 514.
The only authority we have found that lends apparent
weight to the suggestion that we refuse to follow the Ex parte
McCardle line of cases is our Gioda v. Saipan Stevedoring
Co., 855 F.2d 625 (9th Cir. 1988). Following World War II,
the Northern Mariana Islands were placed under United
Nations trusteeship with the United States of America the des-
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ignated trustee. After lengthy negotiations between traditional
leaders of the inhabited islands (Saipan, Tinian, and Rota) and
the government of the United States, the trusteeship was
phased out and replaced by the Covenant to Establish a Com-
monwealth of the Northern Mariana Islands (CNMI). Imple-
menting the Covenant, Congress enacted Public Law No. 95-
157 (1977), which created the District Court for the Northern
Mariana Islands, with both trial and appellate divisions, a cus-
tom that the Trust Territories had followed in island courts.
The appellate division was to have such appellate jurisdiction
as the Constitution and laws of the Commonwealth should
provide. See 48 U.S.C. § 1694 (b). In due course, the island
legislature enacted statutes conferring concurrent appellate
jurisdiction, for a limited time, upon the District Court to hear
and decide appeals from the local trial courts as well as from
its own trial division.
After a further period of litigation and legislation, Congress
enacted legislation terminating the jurisdiction of the appel-
late division of the District Court to hear appeals from the
trial division, permitting the appellate division to continue to
decide appeals from the island courts. See Pub. L. No. 98-454
(1985) (codified at 48 U.S.C. § 1694b(a)). The 1985 statute
terminating the jurisdiction of the appellate division of the
District Court to hear such appeals became effective while the
Saipan Stevedoring appeal was under consideration by the
appellate division. That court, following the Supreme Court’s
decision in Bruner, concluded that its jurisdiction was termi-
nated. Pursuant to 28 U.S.C. § 1631, the appellate division
attempted to transfer the appeal to this court. A motions panel
promptly forwarded the appeal to an argument panel, which
decided that it had jurisdiction, at least to consider its jurisdic-
tion. That panel then held that it did not have jurisdiction to
hear the appeal, and returned the appeal to the District Court.
While our panel cited Bruner, which had been the authority
relied upon by the appellate division in concluding that it had
no jurisdiction to continue, it turned to the construction of the
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Transfer Act and declined the transfer. The Gioda opinion
makes no reference to Ex Parte McCardle, but in further ref-
erence to Bruner, the opinion briefly discusses cases dealing
with retroactivity. The panel did mention Bruner in connec-
tion with the general rule that jurisdiction over pending
appeals ends with the repeal of the statute creating jurisdic-
tion, but, as it was preoccupied with the interpretation of the
§1631 (the Transfer Act), it concluded that the appellate divi-
sion retained jurisdiction and remanded the case to the Dis-
trict Court for decision.
[4] The statement that the appellate division had continuing
jurisdiction was apparently founded on the theory that obiter
in a school desegregation case about attorney fees had modi-
fied our duty to follow the Supreme Court’s express holdings
on jurisdiction. The panel cited Bradley v. School Board, 416
U.S. 696, 716 (1974), for the proposition that “a new law will
not be applied retroactively if its application will result in a
manifest injustice.” Gioda, 855 F.2d at 630. Ignoring the con-
text, that the “new law” the Supreme Court was considering
in Bradley had to do with attorney fees and not with jurisdic-
tion, the panel went on to opine that the island court’s appel-
late division retained jurisdiction. This extension of obiter in
Bradley to confer jurisdiction now appears to be a stretch that
does not require repetition in the instant case. Whatever may
be said on behalf of “manifest injustice” we find nothing in
Gioda to trump the clear language of Bruner, in which the
Supreme Court was addressing jurisdiction, and not the retro-
activity of statutes dealing with other subjects. In view of the
Supreme Court’s clear holdings in Ex parte McCardle and
Bruner, both of which are unequivocal and squarely on point,
we are without jurisdiction to decide this appeal.
The appeal is dismissed.
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WALLACE, Senior Circuit Judge, concurring:
I agree that the recent Congressional enactment has elimi-
nated our jurisdiction to hear the present appeal. Because my
analysis differs somewhat from my colleagues, I write sepa-
rately to explain how existing precedents control this jurisdic-
tional issue and why the number of courts a litigant can
appeal to is not a substantive right.
I.
The Supreme Court’s decisions in Ex parte McCardle, 74
U.S. (7 Wall.) 506 (1869), and Bruner v. United States, 343
U.S. 112 (1952), as well as our own decision in Duldulao v.
INS, 90 F.3d 396 (9th Cir. 1996), control this appeal.
McCardle addressed almost exactly the same issue we have
before us: the effect of a Congressional repeal of a
jurisdiction-authorizing statute on a pending appeal.
McCardle appealed to the Supreme Court under a then-proper
jurisdictional statute on February 5, 1867. 74 U.S. (7 Wall.)
at 508. The case was argued from March 2 to 9 and taken
under advisement. Id. at 507-08. On March 27 of that year,
Congress repealed the act under which the petitioner’s appeal
had been taken. Id. at 508. Thus, like the present case, the
appeal was properly filed, argued, submitted, and taken under
advisement. Like the present action, Congress repealed the
statute that had authorized jurisdiction while the case was
under advisement.
The operative question for the Court was whether jurisdic-
tion still existed. “Without jurisdiction the court cannot pro-
ceed at all in any cause. Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining
to the court is that of announcing the fact and dismissing the
cause.” Id. at 514 (emphasis added). Because the Court held
jurisdiction was lacking, the court dismissed the appeal. Id. at
514-15.
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Bruner, which also addressed a Congressional jurisdiction-
withdrawing statute, similarly mandates a conclusion that we
lack jurisdiction. While Bruner’s case was pending before the
Supreme Court on certiorari review, Congress passed a statute
withdrawing district court jurisdiction over Bruner’s claim (a
claim for overtime compensation against the government).
343 U.S. at 114. Instead, Congress provided for jurisdiction
only in the Court of Claims. Id. at 115. The Court held that
“when a law conferring jurisdiction is repealed without any
reservation as to pending cases, all cases fall with the law
. . . .” Id. at 116-17, citing, inter alia, McCardle, 74 U.S. (7
Wall.) at 506, 514. The Court held that the Congressional act
applied to Bruner and therefore the Court lacked jurisdiction.
Id. at 117. Because there was no “reservation as to pending
cases” in the statute at issue here, we lack jurisdiction over the
present appeal.
Finally, our own decision in Duldulao requires us to find
we lack jurisdiction over Santos’s appeal. Duldulao also
involved a jurisdiction-withdrawing statute that became effec-
tive during the pendency of a petition to our court. 90 F.3d at
397-398. Duldulao had filed a petition for review from a
Board of Immigration Appeals decision ordering his deporta-
tion. Id. at 397. The petition for review was Duldulao’s only
potential federal court review of the deportation order. See id.
at 399-400. Nonetheless, we held that the statute “affects the
power of the court rather than the rights and obligations of the
parties” and therefore we held we lacked jurisdiction. Id. at
399.
Duldulao is replete with language that controls this appeal.
First, and most importantly, Duldulao held that “the ‘pre-
sumption against retroactive application of new legislation to
pending cases does not apply to rules conferring or withdraw-
ing jurisdiction.’ ” Id. at 399 (punctuation omitted) (emphasis
added), quoting In re Arrowhead Estates Dev. Co., 42 F.3d
1306, 1311 (9th Cir. 1994), citing Landgraf, 511 U.S. 244
(1994). Duldulao then reiterated that “[t]he Supreme Court
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has long held that ‘when a law conferring jurisdiction is
repealed without any reservation as to pending cases, all cases
fall within the law.’ ” Id., quoting Bruner, 343 U.S. at 116-17.
Furthermore, “[t]he Court reaffirmed this ‘consistent practice’
in Landgraf, noting that it has ‘regularly applied intervening
statutes conferring or ousting jurisdiction, whether or not
jurisdiction lay when the underlying conduct occurred or
when the suit was filed.’ ” Id., quoting Landgraf, 511 U.S. at
274.
This language is obviously dispositive of this appeal. While
Santos could call for an en banc court to overrule Duldulao,
we cannot ignore its controlling effect on this case. See
Barapind v. Enomoto, 400 F.3d 744, 751 n.8 (9th Cir. 2005)
(en banc) (per curiam).
II.
Santos appears to contend he has a substantive right to
appeal to this court and that, based on this “right,” this court
retains jurisdiction under Landgraf and Hughes Aircraft Co.
v. United States ex rel. Schumer, 520 U.S. 939 (1997). How-
ever, every relevant case has made it clear that a change in the
number of tribunals authorized to hear a litigant’s arguments
does not implicate the litigant’s substantive rights.
Beginning with Bruner, the Supreme Court has clearly sep-
arated substantive rights from the right to appeal to additional
courts: a jurisdiction-withdrawing statute does not “alter[ ] the
nature or validity of petitioner’s rights . . . [but] simply
reduce[s] the number of tribunals authorized to hear and
determine such rights and liabilities.” Bruner, 343 U.S. at
117. This statement makes it clear that the ability to appeal to
multiple courts is distinct from the substantive rights being
appealed. Santos would eliminate the distinction between stat-
utes that affect the “nature or validity of petitioner’s rights”
and those that affect “the number of tribunals,” by turning the
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number of courts to which a petitioner can present his argu-
ments into a substantive right.
Landgraf similarly and explicitly distinguishes between the
ability to appeal and substantive rights. This Supreme Court
precedent holds that “[a]pplication of a new jurisdictional rule
usually takes away no substantive right but simply changes
the tribunal that is to hear the case.” 511 U.S. at 274 (internal
quotations and citations omitted) (emphasis added). “Present
law normally governs in such situations because jurisdictional
statutes speak to the power of the court rather than to the
rights or obligations of the parties.” Id. Hughes Aircraft Co.
reiterates this authority in its opinion and confirms its contin-
uing vitality. 520 U.S. at 951, quoting Landgraf, 511 U.S. at
274.
Santos’s argument that he has a substantive right to appeal
is therefore without merit. The opinions cited all stress that
the number and identity of the courts to which a litigant may
present his substantive claims is not a substantive right. San-
tos’s suggested approach would eliminate the distinction
between statutes that “speak to the power of the court rather
than to the rights or obligations of the parties” by making
them one and the same.
Santos’s “right” to seek additional review is legally indis-
tinct from McCardle’s “right” to seek Supreme Court review,
Bruner’s “right” to bring his action in the district court, and
Duldulao’s “right” to petition this court for review of his
deportation. Because Santos’s substantive rights have not
been affected, Bruner and McCardle control this jurisdictional
issue.
III.
I do not believe it is necessary to discuss Gioda v. Saipan
Stevedoring Co., 855 F.2d 625 (9th Cir. 1988), which was
never raised by either party. Nor was any argument about
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“manifest injustice” ever presented. See Galvan v. Alaska
Dep’t of Corr., 397 F.3d 1198, 1204 (9th Cir. 2005) (“Courts
generally do not decide issues not raised by the parties. If they
granted relief to petitioners on grounds not urged by petition-
ers, respondents would be deprived of a fair opportunity to
respond, and the courts would be deprived of the benefit of
briefing . . . .”) (citation omitted). I therefore do not reach the
issue.
IV.
This jurisdiction issue is controlled by McCardle, Bruner,
and Duldulao, and we therefore lack jurisdiction over the
present appeal. Because the number of tribunals a litigant can
present his arguments to is not a substantive right, Landgraf
and Hughes Aircraft Co. do not change this analysis.
With these observations, I concur in the result of the major-
ity opinion.
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