Appellate Daily

Circuit Split Watch: Variations on the Padilla Theme

2012-01-11T15:55:00.000-05:00

This article first appeared in the January 10, 2012, issue of the National Law Journal’s Supreme Court Insider.

The U.S. Supreme Court will soon have the chance to revisit Padilla v. Kentucky, its 2010 decision holding—at the intersection of criminal and immigration laws—that the Sixth Amendment requires attorneys to inform their clients about the possible deportation consequences of a guilty plea.

In recent months, three federal appellate courts split 2-1 on whether Padilla applies retroactively, teeing the cases up for possible review by the Supreme Court. All three were denied rehearing en banc.

Chaidez v. United States, from the U.S. Court of Appeals for the 7th Circuit, is already the subject of a petition for certiorari.

In 2003, Roselva Chaidez, a lawful permanent resident of the United States since 1977, pled guilty to fraud related to a staged accident insurance scheme and, in 2004, was sentenced to probation. Five years later, after Chaidez tried to apply for citizenship, the federal government initiated removal proceedings against her. Because the admitted fraud caused the victims to lose more than $10,000, it qualified as an aggravated felony, and Chaidez was eligible for deportation.

Chaidez took the matter to federal district court, filing a coram nobis motion, which is a collateral attack similar to habeas, except the defendant is not in custody. Chaidez argued that her attorney did not tell her that a guilty plea could get her deported. Had she known, she would not have pled guilty. Chaidez alleged ineffective assistance of counsel and asked that her conviction be overturned.

Looking to Padilla, which the Supreme Court decided while Chaidez’s motion was pending, the district court vacated her conviction.

The 7th Circuit reversed, over Judge Ann Claire Williams’ dissent.

Judge Joel Flaum, writing for himself and Senior Judge William Bauer, explained that Padilla is not retroactive, meaning that it only applies to cases on direct review, not to a coram nobis motion or other collateral attack. The direct line of Chaidez’s criminal case had been final for years, when she pled guilty and did not appeal.

In Judge Flaum’s view, Padilla announced a groundbreaking new rule that lower courts had not anticipated. In fact, Flaum noted, federal courts before Padilla had unanimously held that plea counsel is not constitutionally required to warn clients of immigration consequences.

Judge Williams disagreed, finding that Padilla applies retroactively to collateral review. Risk of deportation is important information to know before entering a plea. Williams urged that “prevailing professional norms at the time of Chaidez’s plea required a lawyer to advise her client of the immigration consequences of a guilty plea.” Under Supreme Court precedent cited by Williams, such norms have long been relevant to whether counsel’s representation was reasonable.

The 7th Circuit panel knew that its decision would create a circuit split. Less than two months earlier, the 3rd Circuit in United States v. Orocio determined, like Judge Williams, that Padilla applied retroactively. Following 7th Circuit Rule 40(e), the panel distributed the majority and dissent to all ten active 7th Circuit judges. The majority voted not to rehear the case en banc. However, as reported in the panel opinion, four judges voted for rehearing.

The 7th Circuit also denied a later rehearing en banc petition, this time without a vote requested, presumably because the court had previously taken and announced its vote.

Joining the 7th Circuit and making the split 2-1, the 10th Circuit in United States v. Chang Hong ruled that Padilla is not retroactive. Although not precedent, a footnote in United States v. Hernandez-Monreal, a 4th Circuit unpublished opinion from 2010, stated, without analysis, that “nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review.”

A petition for certiorari has already been filed in the 7th Circuit case, and petitions from the 3rd and 10th Circuit cases could soon follow.

Twitter Accounts of SCOTUS Reporters

2011-12-23T17:33:00.001-05:00

Should be some fun Court watching in the next few months, and the list below will make it easier. Used to be "today's news today." Now it's "this minute's news, this minute."

These are Twitter handles of people who cover the Supreme Court, either exclusively or as one of their main hubs (in alphabetical order; with links). Please tweet or drop me an email, if I have missed anyone:

Robert Barnes @SCOTUSReporter (Washington Post)

Kedar Bhatia @DailyWrit

@JoanBiskupic (USA Today)

@JessBravin (Wall Street Journal)

@ShannonBream (Fox)

Andrew Cohen @CBSAndrew (60 Minutes)

Lyle Denniston and other authors @SCOTUSblogposts
*Note-SCOTUSblog has another, more popular Twitter account (@SCOTUSblog), but the "posts" account actually better tracks what is on the site.

@JesseJHolland (AP)
*Also @AP_Courtside

@LawrenceHurley (Greenwire)

@RobertIafolla (Los Angeles Daily Journal)

Arthur Lien @CourtArtist

@AdamLiptak (NY Times)

@DahliaLithwick (Slate)

@TonyMauro (National Law Journal)

Michelle Olsen @AppellateDaily (National Law Journal)

@MikeSacksHP (Huffington Post)

Mark Sherman @ShermanCourt (AP)
*Also @AP_Courtside

@GregStohr (Bloomberg)

@NinaTotenberg (NPR)

Televising SCOTUS Arguments: Today's Quotes

2011-12-06T23:29:00.004-05:00

Today, the Senate Judiciary Committee held a hearing about the pros and cons of televising U.S. Supreme Court oral arguments, and whether Congress should pass legislation to require televised arguments. Some quotes from the witnesses (in their seating order):

Senator Arlen Specter (served 1981-2011): The justices consider the Court to be "their domain. Well, it's not. It's the public's domain, and it ought to be accessible to the public."

Thomas Goldstein, SCOTUSblog: Congress "can pass a law constitutionally that requires the justices to [televise arguments] . . . . These are public proceedings." However, the Court's "trajectory" has been toward increased access, and television is "inevitable." As a result, Congress should "not provoke the constitutional controversy of requiring" the Court to televise arguments.

Chief Justice Mark Cady, Iowa Supreme Court: Iowa's high court "streams all of its oral arguments online" and "archive[s] the videos for later viewing [online]." The "experience in Iowa has . . . dispelled the [initial] fears that we had," the "same fears" discussed in today's hearing, because "the justices still maintain control of the courtroom."

Judge Anthony Scirica, U.S. Court of Appeals for the Third Circuit: "Each of our three branches of government is responsible for its own deliberations and self-governance. The separation of powers underscores the considerable latitude that should be afforded each branch in determining its own internal procedures. Deciding whether to televise oral arguments at the Supreme Court goes to the heart of how the Court deliberates and conducts its proceedings."

Maureen Mahoney, Latham & Watkins: "[I]t's all about line drawing, and . . . it's very difficult to know where to draw the lines. But, that's why we need to let the Court draw its own line."

Appellate Daily, Cameras at the Court (previous coverage; my take on the issue)

Why Was an Amicus Appointed in Dorsey and Hill? (Miguel Estrada)

2011-11-29T15:38:00.000-05:00

Today, the U.S. Supreme Court appointed Miguel Estrada to defend the judgments below in Dorsey v. United States (11-5683) and Hill v. United States (11-5721). Why was this necessary?

The short answer is that the federal government took a position before the U.S. Court of Appeals for the Seventh Circuit in Dorsey and Hill, won those cases, and then changed its position.

The longer answer is in a "Memorandum for All Federal Prosecutors," from Attorney General Eric Holder, dated July 15, 2011:

Last August . . . the President signed the Fair Sentencing Act of 2010 into law. This new law . . . reduced the unjustified 100-to-1 quantity ratio between crack and powder cocaine sentencing . . . . [Note: Now 18-to-1]

Immediately following the enactment of the Fair Sentencing Act, the Department advised federal prosecutors that the new penalties would apply prospectively only to offense conduct occurring on or after the enactment date, August 3, 2010. Many courts have now considered the temporal scope of the Act and have reached varying conclusions. . . . [Explained further in this post]

In light of the differing court decisions—and the serious impact on the criminal justice system of continuing to impose unfair penalties—I have reviewed our position regarding the applicability of the [Act to persons] sentenced on or after the date of enactment. . . . I have concluded that the law requires the application of the [Act] . . . to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place.

This memo came out after both Dorsey and Hill were decided, in favor of the government's original position. With that change, the judgments below were orphaned and needed an amicus to defend them.

Because the Seventh Circuit was the court below, and Justice Elena Kagan is the circuit justice, she would have made the amicus assignment. Justice Kagan chose her old friend (they sat next to each other as 1Ls), Supreme Court veteran Miguel Estrada.

Circuit Split Watch: Foreign Surveillance Goes Domestic

2011-11-29T00:33:00.000-05:00

This article first appeared in the November 28, 2011, issue of the National Law Journal’s Supreme Court Insider.

A dispute over standing to challenge amendments to the Foreign Intelligence Surveillance Act could soon make its way to the U.S. Supreme Court.

Earlier this year, the U.S. Court of Appeals for the 2nd Circuit held that Amnesty International, attorneys, and other plaintiffs, who communicate with foreign contacts they believe are likely surveillance targets, have standing to challenge the amendments.

The 2nd Circuit denied rehearing en banc in September by a 6-6 vote, dividing mostly along party lines and prompting four dissenting opinions. Judge Reena Raggi, in the principal dissent, lamented that the decision had created an “unnecessary circuit split” in the federal appellate courts and she asked the Supreme Court to step in.

Amnesty International USA v. Clapper is a facial challenge to a 2008 Act amending the FISA, brought by the ACLU on behalf of various plaintiffs.

The amendments, which loosened oversight of foreign surveillance, arose in part due to 9/11, and the fact that U.S. intelligence was not able to prevent the attacks. Americans cannot be surveillance targets under the amendments, but their electronic communication with foreign targets can be intercepted more easily now.

The ACLU maintains that the amendments go too far, permitting “dragnet surveillance of Americans’ international telephone calls and e-mails en masse, without a warrant, without suspicion of any kind, and with only very limited judicial oversight.”

A federal district judge in New York dismissed the challenge for lack of standing, but a three-judge 2nd Circuit panel revived the suit, finding that the plaintiffs had alleged concrete injuries and other elements required for standing.

Six judges (four nominated by President Obama and two by President Clinton) voted to deny rehearing en banc. Another six judges (all nominees of Republican presidents, except Jose Cabranes) dissented from the denial. Because of the tie, the original panel opinion stood.

Gerard Lynch, the only judge to explain his vote to deny rehearing in an opinion, also wrote the original panel opinion, joined by two senior judges who were ineligible to vote on whether to grant rehearing.

Judge Reena Raggi, writing for all but one of the dissenters, noted that other circuits have denied standing to plaintiffs in comparable surveillance cases, including the 6th and 9th Circuits in 2007, as well as the D.C. Circuit in 1984.

The D.C. Circuit opinion, authored by then-Judge Antonin Scalia, held that even if the plaintiffs in that case were “at greater risk than the public at large” of being monitored “that would still fall far short of the ‘genuine threat’ required” for standing. Risk of surveillance is “hypothetical, conjectural, or speculative,” and “not sufficient” for standing, in the 6th and 9th Circuits, respectively.

Judge Lynch agreed with Judge Raggi that there is “some tension” in the circuits. However, the sister circuit cases are distinguishable, he said, because they deal with different programs. Also, the 2nd Circuit plaintiffs’ risk of being monitored is not hypothetical. Their foreign contacts, including Guantanamo detainees and their families, are likely surveillance targets. In addition, the 2nd Circuit plaintiffs have alleged concrete financial injuries, Judge Lynch found, including travel costs incurred to communicate with foreign contacts in person.

As to the last point, Judge Raggi dismissed such costs as “self-inflicted.” If recognized, “every mobster’s girlfriend who pays for a cab to meet with him in person rather than converse by telephone would . . . have standing,” she stated.

Whether asserted costs of Amnesty International, attorneys, and the other plaintiffs will hold sway at the Supreme Court remains to be seen.

Along with the circuit split, another factor weighing in favor of Supreme Court review of the 2nd Circuit decision is that the plaintiffs are seeking to invalidate a federal statute. Also, the case has important national security and constitutional implications.

The government is deciding whether to file a petition for certiorari, currently due December 20, according to a recent district court filing.

Circuit Split Watch Update (Cert Grant-Crack Sentencing)

2011-11-28T10:31:00.000-05:00

Today, the U.S. Supreme Court granted certiorari in Dorsey v. United States (11-5683) and Hill v. United States (11-5721). In these consolidated cases, the Court will review whether the Fair Sentencing Act, which reduced sentences for crack cocaine crimes, applies when the offense occurred before the FSA's effective date, but the sentence was handed down on or after that date.

A previous Circuit Split Watch column discussed this issue and mentioned Dorsey, and an update to that column referenced Hill (see points 2 and 3 re: the United States' brief in the case).

It seems certain that the Supreme Court will appoint an amicus to defend the decision below. As discussed in the column and the update, the federal government, the winner below, now disagrees with the lower court decisions.

Circuit Split Watch Update (Cert Grant-Capato)

2011-11-14T10:06:00.002-05:00

Today, the U.S. Supreme Court granted certiorari in Astrue v. Capato ex rel. B.N.C. (11-159), which deals with whether posthumously conceived children can collect Social Security survivor benefits.

It was covered, with related cases, in this Circuit Split Watch column.

D.C. Circuit: Belated Observation about the Health Care Argument

2011-11-03T18:40:00.000-04:00

Writing about the Eleventh Circuit and oral argument audio earlier today reminded me of an observation I had related to the D.C. Circuit's health care oral argument back in September.

The D.C. Circuit allows public access to audio only after a case is closed, meaning after all appeals, remands, etc., are completed. Only the Eleventh Circuit's to-be-changed policy, discussed earlier today, is more restrictive (no public access). The D.C. Circuit has shown interest in improving its electronic offerings, including possible audio access, but so far, the strict audio policy remains.

Unlike the Eleventh Circuit, the D.C. Circuit did not make an exception to allow public access to audio from its health care argument. The fact that only those in the courtroom could hear the argument may be one reason why it was "under-reported" or got "very little press attention," as prominent blogs wrote at the time.

11th Circuit: Some Progress on Argument Audio

2011-11-03T16:50:00.000-04:00

Eight federal appellate circuits post oral argument audio to their websites, while five do not. See audio links here (available permanently under "Resources" on the Appellate Daily sidebar).

Of the holdout courts, the Eleventh Circuit has the most restrictive audio policy: no public access. According to its Local Rule 34-4(g): "Oral argument is recorded for exclusive use of the court." Earlier this year, though, the court made an exception for the health care argument, offering audio CDs for sale to the public.

Looks like the experiment went well.

The Eleventh Circuit judges have voted to make the CD option the norm, based on an article yesterday in the Atlanta Journal-Constitution and a follow-up call I made to the clerk's office about details. While confirming the judges' vote, the clerk's office emphasized that the restrictive local rule will need to be revised before the change becomes official.

Yes, "CD-for-a-fee" still seems somewhat "Model T" compared to the eight circuits' (and the Supreme Court's) free online audio, but it definitely beats no access. I'll keep my eye out for the official change and blog about it.

More Appellate Daily coverage about oral argument audio is here (importance of access) and here (Fourth Circuit's addition of free online audio).

SCOTUS Denies Cert in Online Student Speech Case, but Dispute Not Over Yet

2011-10-31T10:04:00.000-04:00

The U.S. Supreme Court denied certiorari today in Doninger v. Niehoff, one of the online student speech cases discussed previously on this blog in a Circuit Split Watch post.

The two other cases discussed in the post, now consolidated as Blue Mountain School District v. J.S., are still pending before the Court. The University of Virginia Law School's Supreme Court Litigation Clinic represents the petitioners (school districts and officials). Professor James Ryan, a former Rehnquist clerk, is the counsel of record. SCOTUSblog's case page is here.

Cameras at the Court

2011-10-25T15:29:00.000-04:00

SCOTUSblog's new "Community" feature recently had an open comment thread about televising arguments at the U.S. Supreme Court. This is a comment I left on the topic (reprinted, with other comments, here):

There have been signs of hope, including a pilot video program in the lower courts, as well as increased access to transcripts and audio, both now on the Court’s website.

This summer, Chief Justice Roberts listed these developments in a presentation to the Fourth Circuit Judicial Conference. The Court is, Roberts said, “moving in a particular direction.” The Chief made clear that “movement will be gradual” and that the Court is especially concerned about video, but I hear progress in his comments.

Though still disappointing to the media, the audio change—from yearly to weekly release (online)—was a huge leap forward for access. (As someone who has waited months for audio and then schlepped to the National Archives to get it, I can say this personally.) Hopefully, similar steps are to come. For instance, I could see same-day audio being offered, as it is now for transcripts. The Court could gauge effects it fears (e.g., Does same-day reporting of voice snippets negatively affect the live presentation?), without launching headlong into video just yet.

Will cameras at the Court beat the next batch of Brood X cicadas to Washington, D.C. (ten more years)? I don’t know, but I think there is something more pleasant, but equally inevitable and organic happening with cameras. They are coming.

Roberts Presentation (see discussion starting at 41:15): http://www.c-spanvideo.org/program/300203-1

Pilot Video Program: http://www.uscourts.gov/Multimedia/cameras.aspx

Updates: Crack Sentencing Circuit Split

2011-10-21T11:51:00.000-04:00

The beat goes on.

A few updates related to the circuit split about crack sentencing, discussed Tuesday on this blog.

1-On Wednesday, the Fifth Circuit joined the split, holding that the FSA does not apply to "sentencing for illegal conduct that preceded the FSA’s enactment." Professor Doug Berman's Sentencing Law and Policy blog has coverage here.

2-Also, Sentencing Law and Policy posted a Supreme Court brief filed two weeks ago, addressing the circuit split. In it, the respondent United States encourages the Court to grant certiorari and reverse, confirming its disagreement with the Seventh and Eighth Circuit decisions that it won below. See pages 7-8.

3-Footnote one on page 8 of the brief collects related cases pending before the Supreme Court.

Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?

2011-10-18T12:47:00.001-04:00

This article first appeared in the October 17, 2011, issue of the National Law Journal’s Supreme Court Insider.

Congress passed the Fair Sentencing Act of 2010 to reduce the vast and heavily criticized disparity between crack cocaine and powder cocaine sentences.

Implementing the FSA has not been easy, though, as federal appeals courts have split over when it applies. Two of these cases could reach the Supreme Court soon as petitions for certiorari, and a third is already there.

In July, the 7th Circuit decided United States v. Holcomb, a consolidation of appeals involving four defendants. Each committed crack offenses before the FSA became law, but was sentenced after, receiving lower FSA sentences. For one defendant, the difference was 33 months (within the FSA range) versus 120 months (pre-FSA mandatory minimum).

A three-judge 7th Circuit panel, citing prior circuit precedent, found that the FSA only applies to offenses committed after it became law and that the sentencing date is irrelevant. As a result, the defendants would get the higher sentences. This had been the federal government’s position.

About a week later, though, Attorney General Eric Holder issued a “Memorandum for All Federal Prosecutors” that rejected this approach. Originally, prosecutors had been told that the FSA only applied to post-FSA offenses. However, as Holder explained, confusion in the courts and “the serious impact on the criminal justice system of continuing to impose unfair penalties” had caused him to review and change the policy. Going forward, the FSA would apply to post-FSA sentences, regardless of the offense date.

After the government notified the 7th Circuit of the policy change, the court denied rehearing en banc sua sponte. The vote was a tie, 5-5, leaving the earlier decision intact.

Chief Judge Frank Easterbrook, writing for the four other judges opposed to rehearing en banc, focused on 1 U.S.C. § 109. Under that section, repealing a statute does not “extinguish any penalty” of the old statute, except where expressly stated in the “repealing Act.” Put another way, the FSA is not retroactive unless it says so. And it doesn’t, Easterbrook concluded. He also saw no implied retroactivity.

Judge Ann Claire Williams, joined by the four other judges who voted for rehearing, called this result “wrong” and “nonsensical.” Judge Richard Posner, who joined Williams, but also wrote a separate individual dissent, went further, deeming it “gratuitously silly” and “perverse.”

The FSA, Williams noted, gives the Sentencing Commission “emergency authority” to promulgate guidelines consistent with the FSA “as soon as practicable.” Also, the FSA states that it is “restor[ing] fairness to Federal cocaine sentencing.” Williams questioned why Congress would rush to replace admittedly unfair sentences, only to continue imposing them.

As both sides pointed out, there is a 3-2 split among the federal appellate courts on when to apply the FSA. The 1st, 3rd and 11th Circuits are in sync with Williams’ opinion, while the 8th Circuit squares with the 7th Circuit holding defended by Easterbrook.

The 7th and 8th Circuit cases are likely to be appealed to the Supreme Court soon. Like the 7th Circuit, the 8th Circuit recently denied rehearing en banc. Also, an earlier 7th Circuit case on FSA retroactivity, Fisher v. United States, is already pending before the Court as a petition. It was distributed for the September 26 conference, but the Court took no action, perhaps waiting in anticipation of further petitions. (See also Dorsey v. United States, consolidated with Fisher below.)

Because of the circuit split, and the practical implications for many defendants, the Supreme Court may decide to grant certiorari. If so, the scenario will be different than most, since the winner in the 7th and 8th Circuits, the government, now disagrees with those decisions. In such cases, the Court can appoint an attorney to defend the judgments below. Often, as Legal Times has reported, former Supreme Court clerks get this nod.

The government has not appealed its losses in the 1st, 3rd and 11th Circuits, but the latter is still pending. On October 4, the 11th Circuit ordered rehearing en banc sua sponte.

Federal Appellate Judges: Gender and Race Stats

2011-10-10T21:44:00.000-04:00

True or False?
Only one active U.S. Court of Appeals judge is Asian American.
Men outnumber women by more than two to one on the U.S. Court of Appeals active bench.
A Native American has never served as a U.S. Court of Appeals judge.

All three of these statements are true.

As shown on the attached charts, the most under-represented groups among the 162 active federal appellate judges today are women, Hispanics, Asian Americans, and Native Americans. Whites and men are over-represented.

Gender and Race/Ethnicity Charts (two pages)

For more detailed statistics on female federal judges, please see this recent post from the National Women's Law Center. For more on current efforts to diversify the federal judiciary in general, please see this article from the Associated Press.

Good Old Days Scorecard (Fall 2011): SCOTUS 1, Court of Appeals 1

2011-10-08T13:38:00.001-04:00

"[F]ederal judges ain't what they used to be. When I got out of law school, there were 67 court of appeals judges . . . . It was a big deal to be a federal court of appeals judge." The current federal bench is too numerous and "not as elite." Justice Antonin Scalia, U.S. Supreme Court, Oct. 5, 2011 (testimony before the Senate Judiciary Committee; video linked here, discussion at 1:22:57-1:23:35; 1:26:05-1:26:31).

"The Supreme Court today is composed of competent lawyers, and one should probably leave it at that. I don’t think the Court at present has incandescent intellects of the caliber of Holmes, Louis Brandeis, Jackson, and Frankfurter." Judge Richard Posner, U.S. Court of Appeals for the Seventh Circuit, Sept. 29, 2011 (New York Review of Books interview by Eric Segall, at 47, 48).

Speaking for dimmer bulbs everywhere, I still see the justices as "incandescent intellects" and the court of appeals judges as a "big deal." I also note that passing 70 has its benefits; you can say what you really think.

SCOTUS Shows Interest in Two Rehearing Petitions

2011-10-03T18:46:00.001-04:00

Petitions for rehearing at the U.S. Supreme Court are almost always a waste of time, money, and paper.

They are denial, the first stage of grief, in writing: "Look, I know you just decided against me. But, did you really read my brief? Take a look at the same arguments in this petition. This time I used more italics." For such petitions, there is a special graveyard reserved near the end of Supreme Court order lists, known as "Rehearings Denied."

Given the long odds, it was surprising today to see the Supreme Court requesting a response to not just one, but two rehearing petitions in Smith v. Florida (09-10755) and Addison v. New Hampshire (10-8527). While a response request does not guarantee rehearing, it is an essential first step, in most cases.

As Court Rule 44.3 states, "The Clerk will not file any response to a petition for rehearing unless the Court requests a response. In the absence of extraordinary circumstances, the Court will not grant a petition for rehearing without first requesting a response."

Responses are due November 2.

Update to Circuit Split Watch (Cert Grant)

2011-09-27T09:42:00.000-04:00

A Japanese baseball player, the Northern Mariana Islands, and Richard Posner in one case summary.

Today, the U.S. Supreme Court granted certiorari in Taniguchi v. Kan Pacific Saipan, Ltd. (10-1472), spotlighted earlier this year in my Circuit Split Watch column. The link to the Ninth Circuit decision has changed since original publication (current link is here). The case deals with costs awarded for "interpreters" and whether written and spoken translation work is covered.

SCOTUSblog has the briefs, linked here.

Circuit Split Watch: Test-Tube Babies and Social Security

2011-09-15T10:02:00.000-04:00

This article first appeared in the September 14, 2011, issue of the National Law Journal's Supreme Court Insider.

When Congress passed the Social Security Act in 1935, the idea of a child being born years after its father’s death might have provoked when-pigs-can-fly laughter. Now, through advances in science, such births are a reality, not to mention a source of controversy.

Federal appellate courts have recently split over the requirements for posthumously conceived children to receive Social Security survivor benefits. One petition for certiorari is already pending before the U.S. Supreme Court and two more could follow soon.

The most recent case in the split, decided at the end of August, is Beeler v. Astrue, from the U.S. Court of Appeals for the 8th Circuit.

Doctors diagnosed Bruce Beeler, an Iowa man in his thirties, with leukemia and recommended chemotherapy. Because he and his fiancée Patti wanted to have children, but understood that the treatment could cause sterility, Bruce had his semen banked at a fertility clinic prior to undergoing chemotherapy. He and Patti married within weeks.

Despite chemotherapy and later, a bone marrow transplant, Bruce Beeler died. Nearly two years later, Mrs. Beeler gave birth to their daughter and subsequently filed for Social Security survivor benefits on the girl’s behalf. The Social Security Administration denied the request, but a federal district court in Iowa disagreed and awarded benefits.

Judge Steven Colloton, a former Rehnquist clerk, writing for a unanimous 8th Circuit panel, reversed the district court and upheld the agency’s denial of benefits. Senior Judge Myron Bright, born in 1919, sixteen years before Social Security was enacted, and Judge Roger Wollman also sat on the panel.

The core dispute before the 8th Circuit was whether the daughter is a “child” of a deceased worker, as defined by the Social Security Act and related regulations. From Mrs. Beeler’s standpoint, the answer is simple: It is undisputed that Bruce, the deceased worker, is the biological father of the girl, so she is his child.

For the agency though, biology is not the end of the story, but a trigger to further inquiry. The next question, as the agency reads the Act, is whether the biological child could inherit under state intestacy law. If so, she is a “child” for purposes of Social Security benefits.

In this case, Iowa intestacy law did not recognize posthumously conceived children as heirs. As a result, the Beelers’ daughter did not qualify as a “child” for Social Security purposes. Iowa has since changed its law, the 8th Circuit noted, but not retroactively. The daughter also did not qualify under several other inapplicable provisions, apart from state law.

In upholding the agency’s state law inquiry, the 8th Circuit explained, it was joining the 4th Circuit on one side of a 2-2 circuit split. On the other side, the 3rd and 9th Circuits do not require further inquiry for biological children.

Three of these four federal appellate decisions are from 2011, with major actions in all three just last month. In August, the 8th Circuit ruled, the Solicitor General filed a petition for certiorari in the 3rd Circuit case, Capato ex rel. B.N.C. v. Commissioner of Social Security, and the 4th Circuit denied rehearing en banc in Schafer v. Astrue. In other words, there could soon be three cert petitions on a conflicting issue of nationwide importance pending before the Supreme Court.

New questions from new technologies are becoming a recurring theme on the Supreme Court’s docket with recent grants on subjects like GPS surveillance, DNA testing, and video games. Posthumous conception and Social Security benefits could be next.

Circuit Split Watch: The Legislative Privilege

2011-08-18T10:00:00.000-04:00

This article first appeared in the August 17, 2011, issue of the National Law Journal's Supreme Court Insider.

The U.S. Constitution protects members of Congress from interference in their work by the other branches of government. The scope of this privilege, which aims to ensure legislative independence without enabling misconduct, has recently split two federal appellate circuits and will likely reach the Supreme Court soon as a petition for certiorari.

Under Article I, Section 6 of the Constitution, legislators cannot be questioned about their “Speech or Debate in either House.” The Supreme Court has held that this privilege, which comes from English law predating the Constitution, also covers legislative business more generally. However, the legislative privilege is not unlimited.

On August 1, the U.S. Court of Appeals for the 9th Circuit denied a petition for rehearing en banc in United States v. Renzi. The original panel rejected a legislative privilege claim by former U.S. Rep. Richard Renzi (R-AZ), accused of promising favorable legislation in exchange for a land purchase benefiting him. Prior to bringing charges, federal investigators interviewed Renzi’s aides and reviewed documents from them. Investigators also searched the office of an insurance company Renzi owned, pursuant to a warrant.

In ruling against Renzi, the 9th Circuit expressly disagreed with a 2007 D.C. Circuit decision, United States v. Rayburn House Office Building. Rayburn, which the Supreme Court declined to review at the time, upheld the legislative privilege of then-sitting U.S. Rep. William Jefferson (D-LA).

As part of a criminal investigation, the FBI obtained a warrant and searched Jefferson’s congressional office. For 18 hours, more than a dozen agents reviewed every paper in the office and seized records, as well. Finding the legislative privilege violated, the D.C. Circuit ordered the government to return privileged materials taken in the search, with the district court making privilege determinations. The D.C. Circuit noted that it was the first time in history that the Executive branch had searched the office of a sitting member of Congress. A search of Jefferson’s home, not at issue in Rayburn, turned up a much publicized stash of cash in the freezer.

Despite Jefferson’s evidentiary win, he was tried and convicted for bribery and other crimes in federal court in Virginia. His case is on appeal in the 4th Circuit and tentatively scheduled for oral argument in October.

By ordering privileged materials returned to Jefferson, the D.C. Circuit in Rayburn went too far, the 9th Circuit found. The panel said it could not join the D.C. Circuit in sanctioning a “grandiose, yet apparently shy, privilege of non-disclosure” not recognized by the Supreme Court. Instead of forbidding investigators from reviewing documents that have some legislative references, any privileged portions could simply be redacted before use at trial, the 9th Circuit explained, citing Supreme Court case law.

This circuit split on an issue of nationwide importance, namely the integrity and independence of Congress, has Supreme Court watchers’ attention. Professor Jonathan Adler of Case Western Reserve University School of Law told Roll Call: “We have a circuit split—which is the most common reason for the Supreme Court to take a case—and it’s clear cut.”

Renzi’s case may present vehicle problems, though. Professor Craig Bradley of Indiana University’s Maurer School of Law stated in a telephone interview that Renzi’s alleged land-for-vote scheme was clearly not a “legislative act.” A former Rehnquist clerk, Bradley has written about the Speech or Debate Clause and seen it used in practice. In the 1970s, he worked as an attorney for DOJ’s Public Integrity Section during “Koreagate,” a bribery scandal involving

South Korea

and members of Congress. Bradley described Renzi’s legislative privilege claim as “weak.”

The 9th Circuit apparently agreed. Renzi lost unanimously and no circuit judge even requested a vote on rehearing. Although not essential, some pushback below can focus the issues and demonstrate to the Supreme Court the need for review.

Also potentially weighing against Renzi are the unprecedented D.C. Circuit facts: the first and only search of a congressional office by the Executive, covering literally every paper there. The Supreme Court could distinguish the 9th and D.C. Circuit cases on that basis and decline to step in.

Circuit Split Watch: The First Amendment, Students, and the Internet

2011-07-21T08:31:00.001-04:00

This article first appeared in the July 20, 2011, issue of the National Law Journal's Supreme Court Insider.

Twenty-five years ago this summer, Ferris Bueller outwitted school administrator Ed Rooney to take his famous day off.

Tension between students and administrators is still alive and well, though today's students have new tools, including the Internet. Disputes over how far schools can go in disciplining students for online criticism of school officials have recently split two federal circuits and could garner the U.S. Supreme Court's attention next term.

Avery Doninger, a Connecticut high school student, blogged from home that her school administrators were "douchebags" and encouraged calls or notes "to piss [one of the administrators] off." The posting appeared on her personal blog, unaffiliated with the school. Doninger was upset about the possible cancellation of a music event called Jamfest that she was helping to plan. As punishment, the school prevented her from running for class secretary and from wearing a T-shirt protesting the decision during an assembly where the candidates on the ballot would be speaking.

In April, the U.S. Court of Appeals for the 2nd Circuit ruled that the administrators acted reasonably and are entitled to qualified immunity. "[W]e do not conclude in any way that school administrators are immune from First Amendment scrutiny" when they limit extracurricular activities, the panel said. In this case, though, the judges agreed, "it was objectively reasonable for school officials to conclude that Doninger's behavior was potentially disruptive of student government functions (such as the organization of Jamfest)."

As to the T-shirt, which Doninger and other students planned to wear, the principal "may not have known with certainty that permitting the [shirts] into the assembly would cause students to disrupt [the] speeches." However, "she could not responsibly have ignored the fact that Doninger" had "incite[d] confrontation with school officials" through her blog post. Indeed, even without the T-shirts, during the assembly "students shouted 'Vote for Avery' and had to be warned to be respectful." (Remember "Save Ferris"?)

The 3rd Circuit, in a pair of en banc decisions issued in June, went a different direction. In separate rulings, the court sided with two Pennsylvania students who created fake and vulgar MySpace profiles about their principals, while off school property. The rulings are J.S. v. Blue Mountain School District and Layshock v. Hermitage School District.

Disciplining "a student for expressive conduct that originated outside of the schoolhouse, did not disturb the school environment and was not related to any school sponsored event" violates the First Amendment, the 3rd Circuit held in Layshock. In J.S., the court said, "Neither the Supreme Court nor this Court has ever allowed schools to punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school."

No judges dissented in Layshock, but the ruling in J.S. prompted six judges to dissent. Why the different reaction? One reason, as the J.S. dissent explains, is that the two defendant school districts took different approaches: "Unlike the instant case, the school district in Layshock did not argue on appeal that there was . . . a nexus between the student's speech and a substantial disruption of the school environment." That nexus was the basis of the J.S. dissent.

The dissent in J.S. also stressed the extreme nature of the student speech, which accused the principal of engaging in sexual misconduct with children and made sexual references about his wife.

"[The majority] allows a student to target a school official and his family with malicious and unfounded accusations about their character in vulgar, obscene, and personal language," the dissent wrote. "I fear that our Court leaves schools defenseless to protect teachers and school officials against such attacks and powerless to discipline students for the consequences of their actions."

Attorneys for Avery Doninger and at least one of the Pennsylvania school districts plan to appeal to the Supreme Court, according to a recent report from the Student Press Law Center.

During the First Amendment-heavy 2010 term, the Court addressed free speech in the context of funeral protests, violent video games, pharmaceutical companies, and campaign finance. Student speech online may be next in the coming term.

Update to Circuit Split Watch (Cert Grant)

2011-06-27T10:10:00.000-04:00

Today, the U.S. Supreme Court granted certiorari in United States v. Jones (10-1259; caption was Maynard below), previously featured in Appellate Daily's Circuit Split Watch series (see here; some links have changed since original publication). This case deals with warrantless GPS surveillance.

Circuit Split Watch: Going Hague

2011-06-17T07:57:00.000-04:00

This article first appeared in the June 16, 2011, issue of the National Law Journal's Supreme Court Insider.

At first, the facts in Heydt-Benjamin v. Heydt-Benjamin (10-1303), a pending petition for certiorari, seem commonplace: a marriage, two kids, a divorce filing, and a custody battle.

Add concepts like “international child abduction,” “treaty obligations,” and “habitual residence,” though, and the case becomes more complex—complex enough, according to the petition, to create a clear and well-developed circuit split. The U.S. Supreme Court is scheduled to consider the petition in its June 23rd conference.

Thomas and Ava Heydt-Benjamin, American citizens, were living with their two children in Switzerland, where Thomas was studying in a three-year graduate program. While there, the couple split. With custody proceedings ongoing in Switzerland, Thomas took the children, then ages two and four, to the United States, without Ava’s knowledge. He had been advised that Swiss law would favor his wife on custody.

Ava sued in the United States for the children’s return under the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a signatory, and implementing law, 42 U.S.C. §§ 11601-11610. The Convention “establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.” Such children must be returned to “their habitual residence.”

Amy Howe of Goldstein, Howe & Russell, along with Stanford Law School’s Supreme Court Litigation Clinic, and others, filed a petition for certiorari on the mother’s behalf, after she lost in both the federal district court and the U.S. Court of Appeals for the 2nd Circuit.

Last term, Ms. Howe argued and won Abbott v. Abbott, another international child abduction case under the Convention, again collaborating with the Clinic. The issues are different, though. In Abbott, the focus was on Chilean custody law, whereas Heydt-Benjamin involves more general interpretation of Convention language.

The Heydt-Benjamin petition asks the Court to resolve a circuit split about children’s “habitual residence,” which the Convention does not define. Six federal appellate courts rely on the parents’ last shared intent for residence, one disregards parental intent and looks to the child’s experiences, and two others use a hybrid approach, the petition explains.

In Heydt-Benjamin, the 2nd Circuit followed the majority view and its own precedent, finding that the parents had intended to return the family, all U.S. citizens, to the United States after temporarily staying in Switzerland. Therefore, the court held, the United States is the children’s “habitual residence” and they need not return to Switzerland.

An analysis under the children’s experiences may have been more favorable to the mother, since the children were living in Switzerland and had spent much of their young lives there.

The brief in opposition, filed by prominent New York divorce attorney Allan Mayefsky of Aronson, Mayefsky & Sloan, and others, reframes the split and maintains that the 2nd Circuit got it right. All circuits except one consider parental intent to some extent in determining “habitual residence”—a sound approach, the brief argues, particularly with very young children, like the Heydt-Benjamins, who are not yet capable of selecting a residence for themselves.

If the Supreme Court grants certiorari in Heydt-Benjamin, it will be the third grant for Stanford Law School’s Supreme Court Litigation Clinic for next term and the fourth for the law school overall. The Court has also agreed to hear a case from Stanford’s Center for Internet and Society.

The case also involves another high-profile clinic. The University of Virginia Law School’s Supreme Court Litigation Clinic, which argued four cases during the current term, filed a petition-side amici brief in Heydt-Benjamin, representing two child abduction scholars. Respondent did not consent to its filing and was unswayed by its “elaborate hypotheticals,” as he termed them in his brief in opposition.

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2011-05-31T15:20:00.000-04:00

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Something in the Water: SCOTUS Loss, First Circuit Gain?

2011-05-28T21:07:00.002-04:00

The Boston Globe is reporting that two candidates remain for an opening on the U.S. Court of Appeals for the First Circuit (sitting in Maine): William Kayatta, Jr., a partner in the Portland, Maine office of Pierce Atwood, and Jon Levy, a justice on Maine's Supreme Judicial Court. Members of Maine's congressional delegation forwarded the names to President Obama, who will send one to the Senate.

By appointment of the U.S. Supreme Court in April, Mr. Kayatta is serving as a Special Master in a water rights dispute between Kansas and Nebraska. (Colorado is also a named party, but the current round of this long-running dispute is between the other two states.) Such disputes fall under the Court's original jurisdiction and are referred initially to a Special Master, who then makes recommendations to the Court.

If you'll forgive the pun, something may be in the water, because Steve Six, who represented Kansas earlier in the dispute when serving as state attorney general, is now a Tenth Circuit nominee. His Senate Judiciary hearing was held this week.

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Something in the Water: SCOTUS Loss, First Circuit Gain?