Appellate Daily

Letter to D.C. Circuit Re: Audio Access Policy

2013-05-21T17:24:00.000-04:00

This letter was sent today to Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

Dear Chief Judge Garland:

After reading the D.C. Circuit’s new media policy, which welcomes media coverage of cases to inform the public, I am writing to ask for your consideration of a related matter: access to argument audio. My interest is as a lawyer, freelance journalist, and citizen.

The U.S. Supreme Court and eight federal appellate circuits make argument audio available in pending cases, via their websites, free of charge. Five circuits, including the D.C. Circuit, do not.

Of those five circuits, the D.C. Circuit’s policy is the most restrictive, granting no public access until a case is closed. The Second, Sixth, and Eleventh Circuits make audio available in pending cases, via CD purchase. The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed. Per a call to the Tenth Circuit clerk’s office this morning, those motions are routinely granted.

The D.C. Circuit hears cases that affect citizens throughout the country; as a current example, the recess-appointments matter. Members of the media who do not happen to be in D.C. are not able to listen to and report on D.C. Circuit arguments. There are also interested members of the public and the legal community in other parts of the country who would like to listen to and inform themselves directly of these crucial, public proceedings, but are unable to do so. The courtroom cannot always accommodate all interested persons in D.C., either.

This gap of public access is particularly notable since the Supreme Court, famously cautious on access, has been posting its audio to the web since 2010. The nearby Federal and Fourth Circuits both post audio to the web.

It would be a meaningful step forward for public information, if the D.C. Circuit would review its current policy and join the Supreme Court and most of its sister circuits in offering free access to argument audio online.

Thank you for your consideration.

Victoria Nourse: D.C. Circuit Nominee?

2013-05-01T14:12:00.001-04:00

A few weeks ago, Senator Harry Reid said that he expected President Obama to nominate three more people to the U.S. Court of Appeals for the D.C. Circuit soon.

That hasn't happened yet, but it got me thinking about the people he might nominate.

Could Victoria Nourse be in that group?

In July 2010, Obama nominated Nourse to a Seventh Circuit seat in Wisconsin. She was then a law professor at the University of Wisconsin, as well as former counsel to the Senate Judiciary Committee and its chair, then-Senator Joe Biden.

After one of the home state senators blocked her nomination by not returning his blue slip, she withdrew in January 2012.

Subsequently, Nourse left Wisconsin Law, where she had been a professor since 1993, and became a professor at Georgetown Law in Washington, D.C. (She had also been a visiting professor at Georgetown previously.)

See where I am going with this?

Info
*Nourse's current bio is here.
*A 2011 letter from a bipartisan group of scholars supporting her Seventh Circuit nomination is here.

Circuit Split Watch: Will the Court Bury Casket Cases?

2013-04-24T07:38:00.000-04:00

This article first appeared in the April 23, 2013, issue of the National Law Journal’s Supreme Court Brief.

The Benedictine monks of St. Joseph Abbey in southern Louisiana make and sell wooden caskets to support their monastery. State regulators are not happy about it, though, because they say the monks need a license.

The U.S. Court of Appeals for the Fifth Circuit recently ruled for the monks, adding to a circuit split on licensing for casket sales. The U.S. Supreme Court could be asked to weigh in soon.

For more than a century, St. Joseph has been making caskets to bury its monks. In response to requests and a need for more income, the monks began offering wooden caskets for sale to the public in 2007, at below the national average cost. They come in two simple designs; one is no more than a nice wooden box with handles.

“My husband really wanted to have a simple burial. He lived life simply, and he wanted to have just a simple wooden coffin. And so, the monks were able to provide that service for us,” explains a customer in an Institute for Justice (IJ) video. IJ, a libertarian public interest law firm based in Arlington, Virginia, represents the monks.

The Louisiana State Board of Embalmers and Funeral Directors ordered St. Joseph not to sell the caskets. Under Louisiana law, only a licensed funeral home with a licensed funeral director can make such sales. Violators can be fined and even jailed.

To be licensed, funeral homes must have facilities for embalming and preparing bodies, while directors must be apprentices for a year, among other requirements.

The monks admit they are not licensed, but argue that they do not embalm or provide other funeral-related services. They just want to sell caskets.

The regulating Board has nine members, eight of whom are either funeral directors or embalmers. “The State is going after the monks because licensed funeral directors want the casket market to themselves,” Jeff Rowes, an attorney for the monks, contends in an IJ video.

St. Joseph sued the Board in federal court, alleging that the requirements for casket sales are unconstitutional.

On March 20, the monks won in the Fifth Circuit. St. Joseph Abbey v. Castille said that states can regulate business. The court “insist[s] only that Louisiana’s regulation not be irrational—the outer-most limits of due process and equal protection.” The Board “offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none.”

Granting funeral homes “an exclusive right of sale adds nothing to protect consumers and puts them at a greater risk of abuse including exploitative prices,” the Fifth Circuit held. The court also noted that Louisiana does not regulate the construction or design of caskets. In fact, a person can be buried with no casket.

IJ also represented casket sellers in challenges to similar laws in Tennessee and Oklahoma, winning in the Sixth Circuit in 2002 and losing in the Tenth Circuit in 2004. The sellers in those cases were not monks, but business people who, like the monks, wanted to sell caskets, but were not licensed.

In Powers v. Harris, the Tenth Circuit upheld Oklahoma’s casket-sale law, mainly out of deference to the legislature. The court was uncomfortable “substituting [its] view of the public good or the general welfare for that chosen by the states.” A bill to change the law had been introduced three times in the Oklahoma House, but not passed.

The Tenth Circuit found that sometimes states have legitimate reasons for preferring certain industries, for instance to attract business to the state. It is best to leave legislating to the legislators, the court concluded.

In March 2005, the Supreme Court declined to review the Tenth Circuit decision. Now, eight years later, with four new justices, it may have another chance with the monks’ Fifth Circuit win and a refreshed circuit split.

IJ attorneys assert in a recent op-ed that the issue goes beyond caskets to the broader question of how far states can go to favor certain businesses.

A petition for rehearing en banc in the Fifth Circuit was recently denied.

The Big Week at SCOTUS: What Stands Out Most

2013-04-01T19:04:00.000-04:00

I did one final guest post about the historic U.S. Supreme Court arguments on same-sex marriage over at Above the Law, linked here.

DOMA Arguments at SCOTUS: Five Money Quotes

2013-03-27T20:00:00.000-04:00

I did another guest post for Above the Law, linked here. This one is a short piece with some quotes from the Defense of Marriage Act arguments today at the U.S. Supreme Court.

Prop. 8 Argument

2013-03-26T22:32:00.003-04:00

I have a guest post at Above the Law about the Proposition 8 argument today at the U.S. Supreme Court, linked here. Quite a day.

Update: Pictures from the Court, linked here.

Justice Souter: Working in Reverse, by Choice

2013-02-27T08:22:00.000-05:00

This article first appeared in the February 26, 2013, issue of the National Law Journal’s Supreme Court Brief.

Justice David Souter retired from the U.S. Supreme Court in 2009, but has not stopped being a judge.

In January, Souter heard fifteen arguments at the U.S. Court of Appeals for the First Circuit and eight more in February. As a retired associate justice, he has participated in approximately 170 First Circuit opinions, writing nearly fifty, far surpassing his previous experience as a court of appeals judge.

The First Circuit “is extremely grateful to Justice Souter for his invaluable contribution to the [court’s] work,” said Susan Goldberg, Deputy Circuit Executive, in response to an email inquiry for this article.

Even fully staffed, the First Circuit has only six active judges, the fewest of any circuit. One of those seats has been vacant since the end of 2011, when Judge Kermit Lipez took senior status. President Barack Obama nominated William Kayatta to the position in January 2012 and re-nominated him in January 2013. Kayatta was finally confirmed this month.

After serving on the bench for twelve years in New Hampshire, Souter’s home state, he sat on the First Circuit for just a few months, beginning in April 1990. He was nominated to the Supreme Court in July and confirmed in October. On that timetable, he heard argument, but authored no opinions.

Post-retirement, Souter’s numerous authored opinions for the First Circuit cover, among other topics, business, immigration, education, and employment.

In 2012, Souter was part of a unanimous decision in United States v. Kearney, written by Chief Judge Sandra Lynch. Kearney, which upheld restitution for a child pornography victim and identified a circuit split on the issue, is currently before the Supreme Court on a petition for certiorari. Another retired federal judge, Paul Cassell, filed a pending petition on behalf of victims in related litigation out of the Ninth Circuit.

One of the First Circuit appeals Souter heard recently involves a request to disqualify the district court judge in the case of accused mobster James “Whitey” Bulger. On the FBI’s Ten Most Wanted Fugitives list, Bulger eluded authorities for sixteen years before being captured in 2011.

At argument, Bulger’s attorney asserted that the federal government had given his client immunity, but declined to say when, despite the panel’s interest in the question. The district judge had been a federal prosecutor, so the date could be relevant to his alleged knowledge of the Bulger case.

Souter pressed the attorney twice, noting that his brief implied a particular time period. The attorney eventually confirmed Souter’s reading and offered, “You’re the first person to get that out of me.”

So, why would Souter retire from the nation’s highest court only to be so involved at another court?

As the other justices expressed in a farewell letter read from the bench by Chief Justice John Roberts on Souter’s last day: “We understand your desire to trade white marble for White Mountains, and return to your land ‘of easy wind and downy flake,’” references to a region in New Hampshire and the words of Robert Frost from his 1923 anthology, New Hampshire.

Put less poetically, the Associated Press quoted Souter as telling acquaintances that his was “the world’s best job in the world’s worst city.”

Solution: Keep judging at a high level, but from a different location.

First Circuit arguments are generally held in Massachusetts, an hour-and-a-half drive from the justice’s New Hampshire home. The court hears cases from those two states, as well as Rhode Island, Maine, and Puerto Rico.

In his resignation letter, Souter told President Obama: “I mean to continue to render substantial judicial service as an Associate Justice.”

By all accounts, he has succeeded.

D.C. Circuit Presentation: Deleted Scenes

2013-02-22T09:58:00.001-05:00

The only problem with covering a recent panel presentation by three judges from the U.S. Court of Appeals for the D.C. Circuit was narrowing down the material. The original report, which told what the judges had to say about the sequester and the recess appointments case, ran at Above the Law, linked here.

Below are some "deleted scenes" from the excellent presentation by Chief Judge Merrick Garland, Judge Thomas Griffith, and Senior Judge Laurence Silberman, as part of the J. Reuben Clark Law Society's annual conference held last week at Georgetown Law.

*Silberman sees the decline in law school applications as a "healthy shakeout." There are too many good people going into law, he said.

*Griffith's advice for life is to "be nice," because it is the right thing to do. If you do not care about doing the right thing and just want to get ahead, his advice is the same. You never know when your paths will cross with someone again.

*Garland fielded a question about work-life balance. He does not want to hold himself up as an example; he works very hard. But one thing he did do when his kids were growing up was drive them to school. They always had that half hour together at the beginning of the day. Sometimes it was just "a bunch of sarcasm" or listening to the radio. But other times, his kids would tell him what they were "thinking and worrying about," and he values those times.

*When Garland was giving the last comment, he explained, "I don't leave at five and come in at ten....It's not my way." Silberman, the senior judge on the panel, jumped in with, "It's my way."

*Garland likes to do his own writing. "Don't feel 'dissed' if I don't use your language," he tells his clerks, "in the current vernacular."

*Silberman seemed to commit a cardinal sin of the D.C. Circuit and fall into his own personal pet peeve. Acronyms are disfavored at the circuit, and court rules require an acronym glossary in briefs.

When Silberman mentioned FERC during the presentation, Garland spelled out "Federal Energy Regulatory Commission" and added, with a hint of tongue in cheek, "We don't like acronyms in our court." (In Silberman's defense, FERC is one of the acronyms approved in the D.C. Circuit's practice handbook.)

*Griffith quoted James McPherson, who wrote that Abraham Lincoln "was not a quick study but a thorough one." You do not need to be the most brilliant person, Griffith posited, if you are thorough.

*Silberman remarked that with administrative decisions, one person should make the calls. From his law firm days, he remembers an extended debate over which floor the library would be on.

Guest Post at Above the Law

2013-02-18T15:29:00.001-05:00

I have a guest post at Above the Law today: New D.C. Circuit Chief Judge Dreading the Sequester. It is based on a great panel discussion I attended Saturday at Georgetown Law, as part of the J. Reuben Clark Law Society's annual conference.

Circuit Split Watch: Gun Rights Outside the Home

2013-01-17T11:03:00.001-05:00

This article first appeared in the January 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

The U.S. Supreme Court’s landmark Heller decision declared an individual right to possess a firearm at home, but left open the question of gun rights in public. The high court could be asked to weigh in soon on this open question, which has split federal appellate courts and again been part of the national conversation since the Newtown shootings.

In a December opinion, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, writing for himself and Judge Joel Flaum, honed in on the words “keep and bear” in the Second Amendment, drawing meaning from each one.

“The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home,” Posner stated. “A right to bear arms thus implies a right to carry a loaded gun outside the home.” This reading, Posner concluded, is consistent with Heller. The majority struck down an Illinois ban on carrying guns in public.

Dissenting, Judge Ann Claire Williams was not convinced that Heller implied a “right to have ready-to-use firearms” outside the home.

Williams looked to “a long history of regulating arms in public,” including state laws adopted during the founding era. Predating those laws, the 1328 Statute of Northampton provided that no one may “go nor ride armed by night nor by day, in Fairs, markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere.”

Both Posner and Williams cited recent decisions from the 2nd and 4th Circuits, which upheld public-carry restrictions (a New York law and a National Park Service regulation, respectively).

In November, a unanimous 2nd Circuit panel found “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety.”

A unanimous 4th Circuit held in 2011 that “as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” As to extending Heller, two of the three judges said it is “prudent to await direction from the [Supreme] Court.”

Posner questioned both opinions and distinguished the Illinois ban as “the most restrictive gun law of any of the 50 states.” Along these lines and in an unusual move, Posner gave the Illinois legislature 180 days to revise the ban. The new law can “impose reasonable limitations, consistent with the public safety and the Second Amendment,” he explained.

If Illinois takes this option, it could lessen the practical impact of the circuit split. The revised restrictions could be similar to those upheld; in fact, the Supreme Court declined to review the 4th Circuit public-carry decision. A petition for certiorari is pending in the 2nd Circuit case.

For now, Illinois continues to fight the 7th Circuit ruling.

On January 8, Illinois Attorney General Lisa Madigan filed a petition for rehearing en banc. In a press release that same day, Madigan said: “In ruling that Illinois must allow individuals to carry ready-to-use firearms in public, the 7th Circuit Court’s decision goes beyond what the U.S. Supreme Court has held and conflicts with decisions by two other federal appellate courts.”

If the full 7th Circuit decides to rehear the case, any Supreme Court review would be delayed. However, a quick denial by the 7th Circuit, followed by a petition for certiorari is just as likely.

Unlikely Lame-Duck Vote in 1980 Still Reverberates

2012-12-20T09:14:00.001-05:00

This article first appeared in the December 19, 2012, issue of the National Law Journal’s Supreme Court Insider.

Thirty-two years ago this month, one day after John Lennon was killed, the Senate confirmed Stephen Breyer to serve on the U.S. Court of Appeals for the First Circuit. Looking back, this 1980 vote on a future U.S. Supreme Court justice was remarkable and historic in its timing, speed, and long-term consequences.

In November 1980, Jimmy Carter lost a landslide election to Ronald Reagan, and Republicans won control of the Senate. Just days later, though, President Carter nominated Breyer to the First Circuit, and the lame-duck Senate confirmed him in December.

Citing the Congressional Research Service in a press release two weeks ago, Senator Chuck Grassley noted that, in addition to 2012, “the Senate has confirmed judicial nominees during a lame-duck session in a presidential election year on only three [other] occasions since 1940” (1944, 1980, and 2004).

Breyer was the only judge confirmed in the 1980 lame-duck session; in other words, he was in a category by himself between 1944 and 2004.

Breyer moved from nomination to confirmation in less than a month, which was not completely out of the norm then. Other circuit judges confirmed earlier in 1980 had gotten votes in short order. The Senate confirmed Breyer’s future colleague, Ruth Bader Ginsburg, only two months after her nomination to the D.C. Circuit. Ninth Circuit Judge Stephen Reinhardt was the exception with a nine-month gap.

Today, Breyer’s one-month lag time would be almost unthinkable, particularly for a circuit nominee. President Obama nominated William Kayatta in January of this year for a Maine seat on Breyer’s former court, the First Circuit. Despite support from Maine’s two Republican senators, Kayatta has not yet been confirmed. Two pending circuit nominees have been on hold even longer.

Without the quick, once-in-a-blue-moon vote in 1980, Breyer would have had a long wait for another opportunity. Republicans controlled the White House for the next twelve years.

Breyer served on the First Circuit during that time and beyond, eventually presiding as chief judge when President Clinton nominated him to the Supreme Court in 1994.

Clinton could have nominated Breyer to the Supreme Court without circuit experience, but the odds are against it. The last ten nominees to join the Court, except Elena Kagan, were all circuit judges.

Perhaps Breyer could have been nominated to a circuit court soon after Clinton’s election and had a short stint below. David Souter sat for only five months as a circuit judge before being confirmed to the Supreme Court, as a nominee of President George H.W. Bush.

No one can know for sure what would have happened, because lightning struck for Breyer in 1980, and the rest is history.

So, why did Breyer’s 1980 nomination go through?

Boston Globe articles at the time point to at least two reasons.

Breyer, who was serving as chief counsel to the Senate Judiciary Committee when nominated, impressed senators from both parties.

“It’s a rare personality that can survive two years in Washington and gain the admiration of a liberal Democrat like Edward Kennedy and an arch-conservative like Republican Strom Thurmond,” the Globe explained. However, “Breyer managed to do it.”

The Globe also reported that the two parties may have struck a deal. Republicans would support the Breyer nomination, while Democrats would not push a stack of other pending judicial nominees. Republicans helped force a vote on Breyer when a block was attempted and then helped confirm him.

Circuit Split Watch: Press Access Not a Slam Dunk

2012-12-05T08:15:00.001-05:00

This article first appeared in the December 4, 2012, issue of the National Law Journal’s Supreme Court Insider.

Federal appellate courts are split over press access to polling places. The Pittsburgh Post-Gazette, the largest newspaper in Western Pennsylvania, recently lost a challenge to access restrictions in the U.S. Court of Appeals for the 3rd Circuit and plans an appeal to the Supreme Court.

Under Pennsylvania law, “All persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers ... must remain at least ten (10) feet distant from the polling place during the progress of voting.”

The Post-Gazette argues that this restriction, when applied to the media, violates the First Amendment’s free-press guarantee. The topic of press access was especially sensitive this year, with the controversy surrounding Pennsylvania’s new voter ID law and how it would be applied.

On October 9, Judge Nora Barry Fischer of the U.S. District Court for the Western District of Pennsylvania dismissed the Post-Gazette’s lawsuit in PG Publishing Co. v. Aichele.

Reporters “have no constitutional right to enter a polling place to gather news,” Judge Fischer found. The distance protects voters from being distracted or harassed.

Ten feet is “the vertical distance between a basketball court and a basketball hoop,” she wrote. “Anyone who has seen a player slam dunk knows that ten feet is not an insurmountable distance.”

Judge Fischer acknowledged a contrary 6th Circuit decision from 2004 and rejected its reasoning.

Just days before the 2012 election, on November 1, the 3rd Circuit affirmed Judge Fischer’s opinion in a short, unanimous judgment, noting that it would explain its reasoning in a later opinion.

In Beacon Journal Publishing Co. v. Blackwell, the 6th Circuit case, the Akron Beacon Journal newspaper sued the Ohio secretary of state over a directive barring reporters from polling places during voting. Ohio law states that only voters, election officials, police officers and the like are allowed. The paper asserted that the law had not previously been read to bar reporters.

Judge Eric Clay’s opinion for the 2-1 majority stressed that “[d]emocracies die behind closed doors,” quoting an earlier case.

Under the First Amendment, Judge Clay ordered officials to grant “reasonable access to any polling place for the purpose of news-gathering and reporting so long as [reporters] do not interfere with poll workers and voters as voters exercise their right to vote.”

Frederick Frank, an attorney for the Post-Gazette, recently pointed to the circuit split and indicated that the paper will appeal its 3rd Circuit loss.

The case “raises a significant constitutional issue, which the United States Supreme Court should address, and has not directly addressed, which is the right of reporters to report on the election process,” Frank said, in a Post-Gazette article.

Two items to watch as the appeal moves forward:

First, the Supreme Court would almost certainly prefer to consider the case with the benefit of the lower appellate court’s reasoning. Depending on when it comes out and what it says, the 3rd Circuit’s explanatory opinion could change the timing and analysis of the petition for certiorari. The time to file runs from the November 1 judgment, but the Post-Gazette could seek extensions, if needed.

Second, the Supreme Court may want to let the press-access issue develop further in the lower courts before granting certiorari, particularly because the pressure of the election season has passed for now.

Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

2012-11-01T08:29:00.000-04:00

This article first appeared in the October 31, 2012, issue of the National Law Journal’s Supreme Court Insider.

Paul Cassell, a former federal judge, represents child pornography victims in a series of federal appellate cases. In October alone, Cassell notched a win and a loss in two circuit courts and argued in another. The case he won created a circuit split about restitution for victims, which the U.S. Supreme Court will almost certainly be asked to review.

A former clerk to Chief Justice Warren Burger at the Supreme Court and then-Judge Antonin Scalia at the U.S. Court of Appeals for the D.C. Circuit, Cassell served as a federal district judge in Utah from 2002-2007. He is currently a professor at the University of Utah’s S.J. Quinney College of Law. With the assistance of law students in the Utah Appellate Clinic, Cassell has been involved in litigation throughout the country on behalf of victims.

Under 18 U.S.C. § 2259, child pornography victims are entitled to restitution from defendants for losses in several listed categories, among them: medical expenses, therapy costs, lost income, attorneys’ fees, and “any other losses suffered by the victim as a proximate result of the offense.”

The last phrase is the source of the circuit split.

On October 1, in a win for Cassell, the en banc 5th Circuit concluded that the “proximate result” requirement applies only to the last category, “any other losses.” The 5th Circuit acknowledged that its reading of the statute splits with “[a]ll our sister circuits that have addressed this question.”

Eight federal appellate courts have held that proximate cause applies to all losses. Put another way, there must be some direct link between the defendant’s offenses and the victim’s losses.

The split has important consequences.

Under the majority approach, it is more difficult for victims to collect. Defendants who possess or transport images may not cause a direct loss in the same way that producers of images do. The defendants in the 5th Circuit were guilty of possession, making them harder to reach for restitution.

On October 24, just weeks after the 5th Circuit decision, Cassell lost a case in the 9th Circuit, one of the courts that follows the majority rule. The 9th Circuit affirmed its precedent and expressly declined to adopt the 5th Circuit decision.

In an earlier appeal in the same matter, the 9th Circuit said that “the responsibility lies with Congress, not the courts, to develop a scheme to ensure that defendants . . . are held liable for the harms they cause through their participation in the market for child pornography.”

In its October 24 opinion, the 9th Circuit also raised the possibility of Supreme Court intervention.

Both the 5th and 9th Circuit decisions could be appealed to the Supreme Court soon. The clear split on an important, recurring issue of federal law makes them cases to watch. A former federal judge’s participation also gives the split greater visibility.

Work continues in other cases, as well.

According to the Utah College of Law website, quoting one of Cassell’s students, the 5th Circuit decision “came down in our favor about seven minutes before Professor Cassell got up to argue [on restitution before the 7th Circuit]. That decision changed the face of the argument and the feeling in the courtroom.”

The case was argued on October 1 in a special 7th Circuit sitting at the University of Notre Dame Law School and is pending.

Circuit Split Watch: Earning a Return on Seized Money

2012-10-04T09:10:00.001-04:00

This article first appeared in the October 3, 2012, issue of the National Law Journal’s Supreme Court Insider.

When the United States seizes and later returns a person’s money, the question arises: Who should get the interest earned while it was in the hands of the government?

In September, the U.S. Court of Appeals for the 3rd Circuit joined the majority in a multi-circuit split on this issue, which centers on competing views of sovereign immunity. The Supreme Court could be asked to weigh in on the question.

Ryan James Craig was convicted of wire fraud and failure to appear at trial in the U.S. District Court for the Middle District of Pennsylvania. The court ordered him to pay restitution and a special assessment totaling almost $13,000. The federal government had already seized over $16,000 from Mr. Craig, who moved to reclaim the excess money.

After significant legal wrangling, including an appeal to the 3rd Circuit, the government returned the excess money. Craig had another restitution order against him in Rhode Island, and the government had wanted the excess money transferred there. However, since the cases were unrelated, it was ultimately determined on appeal that the excess should be returned to Craig.

Craig then brought a motion for interest against the United States, on the amount returned. The district court denied the request and, on appeal, the 3rd Circuit agreed.

Writing for a unanimous panel in United States v. Craig on September 17, Judge Thomas Hardiman looked first to 28 U.S.C. § 2465, an asset forfeiture statute that allows for recovery of interest from the United States, under certain circumstances. Craig, he concluded, did not meet the statutory requirements. In addition, Judge Hardiman determined that Federal Rule of Criminal Procedure 41(g), which deals with return of seized property, does not cover interest.

Hardiman also examined the possibility of recovery as a matter of fairness and equity, citing decisions from seven other federal appellate circuits. Three allow equitable interest claims against the United States, while four do not, Hardiman stated.

The 3rd Circuit reasoned that equity cannot “abrogate the sovereign immunity of the United States”; only express waiver can. An earlier 3rd Circuit opinion had questioned the minority view, but, unlike the recent opinion, it was not precedential.

On the other side of the split, Hardiman cited Carvajal v. United States, among other cases. In Carvajal, a 2008 decision from the 9th Circuit, the government seized from and subsequently returned $75,800 to an individual.

Judge Susan Graber, also writing for a unanimous panel, indicated that interest is simply part of the property that needs to be returned. Sovereign immunity is not a barrier.

If the United States seized a pregnant cow and later, after the cow had given birth, the seizure was found to be in error, the government could not give back the cow and keep the calf, Graber explained, quoting an earlier 9th Circuit decision. Likewise, the government needs to return interest from an improper seizure.

The Supreme Court could soon be asked to resolve the conflict. First, though, there is a pending petition for rehearing en banc in the 3rd Circuit.

“As this Court noted in its opinion in this case,” Craig argued in his petition, “there is a split among other United States Courts of Appeal[s].”

Rehnquist on Clerking at SCOTUS

2012-09-24T12:42:00.003-04:00

The Long Conference today, with important issues like Prop. 8 and DOMA on the table, got me thinking about the late Chief Justice Rehnquist's book, The Supreme Court, which I recently read.

The late chief clerked for Justice Robert Jackson during the Steel Seizure Case (1952; 60 years ago)—a highly watched matter about whether President Truman could, in the interest of national defense, seize steel mills to prevent a nationwide strike. The United States was then fighting in Korea.

Rehnquist talks about anxiously working at his desk, with "one ear cocked for the buzzer" announcing that the conference was over. (In that conference, the justices voted on the case itself, unlike today when they are deciding whether to hear cases.)

He and his co-clerk stood by the door to chambers, hoping Justice Jackson would come back soon.

Jackson did, ushering them in. "Well, boys, the President got licked," he said.

Along with the buzzer nerves mentioned, the book contains many other interesting insights into a Supreme Court clerkship, both from Rehnquist's perspective then and later, as a justice.

I am guessing that the hot debates among clerks at lunch (noted by Rehnquist) still happen. And I am also guessing that they were listening closely for the buzzer today.

Circuit Split Watch: When Sanctioned Attorneys Can't Pay

2012-08-30T08:57:00.001-04:00

This article first appeared in the August 29, 2012, issue of the National Law Journal’s Supreme Court Insider.

Federal appellate courts are split over whether money sanctions issued against an attorney can be reduced when he cannot afford to pay. The question has also split conservative and liberal thought leaders, in unexpected ways. The Supreme Court, which recently decided another costs case, could be asked to resolve the split.

Under 28 U.S.C. § 1927, an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Chief Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit, a respected conservative jurist, has at least two suggestions for errant attorneys who cannot afford to pay: Take it up with the bankruptcy court and possibly find a new career.

In 2009, Easterbrook, writing for a unanimous three-judge panel in Shales v. General Chauffeurs Local Union No. 330, explained that a § 1927 violation “is a form of intentional tort….Damages depend on the victim’s loss, not the wrongdoer’s resources.” If the attorney cannot pay the sanction, he could seek relief in bankruptcy. Further, if the attorney “is poor because people are not willing to pay much, or at all, for his services, then he should turn from the practice of law to some other endeavor where he will do less harm.”

Last month, 9th Circuit Judge Stephen Reinhardt, who has been called a “liberal lion,” rejected the 7th Circuit’s conclusion in Haynes v. City & County of San Francisco. The statute says that the court “may” require an attorney to pay costs, not “must” or “shall”—a clear signal to Reinhardt and the other two panel members that the lower court has discretion to order and adjust costs. He noted that the 2nd Circuit also adopted this “plain meaning” in Oliveri v. Thompson, a 1986 case.

Ordering “sanctions in an amount many times greater than the attorney will ever be able to pay” can be “a futile gesture that does little” to make victims whole, Reinhardt reasoned.

Ironically, the Reinhardt and Easterbrook approaches could be seen as an ideological swap, with the liberal Reinhardt playing the role of textualist and the conservative Easterbrook looking for context outside the words.

While costs will never grab the headlines in the way that affirmative action, same-sex marriage, and other cases in the Supreme Court’s current inbox will, they have gotten the Court’s attention as a day-to-day part of litigation that affects many people.

In May, the Supreme Court decided a costs case involving a different statute. Taniguchi v. Kan Pacific Saipan, Ltd. clarified that costs awarded for interpreters include only oral translation expenses. Like the pending attorney-costs split, Taniguchi also involved a split between the 7th and 9th Circuits—resolved in the 7th Circuit’s favor. (This column previously highlighted Taniguchi.)

Before the attorney-costs issue can reach the Supreme Court, though, there may be a rehearing en banc.

The sanctioned attorney has indicated that he intends to seek rehearing. Although he won on the possible reduction of costs (to be determined on remand by the district court), the 9th Circuit opinion also said that he “engaged in a wide variety of incompetent and unprofessional actions.” The circuit issued a separate unpublished memorandum opinion to that effect.

The 9th Circuit has set an October deadline for his petition.

Circuit Split Watch: Can Drug Companies Pay for Delay?

2012-08-04T16:09:00.001-04:00

This article first appeared in the August 1, 2012, issue of the National Law Journal’s Supreme Court Insider.

When a drug company pays a manufacturer to delay launching a generic, is it the act of an illegal monopoly or merely a settlement benefiting both parties?

The U.S. Court of Appeals for the 3rd Circuit recently ruled on these so-called “pay-for-delay” deals, splitting from three other circuits. If not revised en banc, the decision will likely warrant Supreme Court review.

Schering-Plough (now Merck) manufactures K-Dur, a patented high blood pressure medication. More than a decade before Schering’s patent was set to expire, two manufacturers attempted to enter the market early via generic versions of K-Dur. Schering sued for patent infringement.

The parties settled the patent cases. The manufacturers agreed not to bring the generics to market for several years, while Schering agreed to pay them millions. Supporters argue that such agreements are simply dispute settlements, which courts generally favor.

The Federal Trade Commission disagrees. According to the FTC website, pay-for-delay deals are a top priority for the agency, since they are “anticompetitive” and “cost consumers and taxpayers $3.5 billion in higher drug costs every year.” The FTC filed an amicus brief in the 3rd Circuit, in support of plaintiffs challenging the K-Dur agreements.

Those plaintiffs include CVS, Rite Aid, wholesale drug companies, and others. They argue that pay-for-delay deals violate antitrust law and prevent competitive pricing.

On July 16, a unanimous three-judge 3rd Circuit panel deciding In Re: K-Dur Antitrust Litigation found that pay-for-delay deals are “prima facie evidence of an unreasonable restraint of trade.” Showing that the payment has a purpose other than delaying generic entry or has some pro-competitive benefit can rebut this evidence.

The 3rd Circuit rejected the “scope of the patent test” adopted by the Federal, 2nd, and 11th Circuits. (The Federal Circuit, with its specialized docket, is not frequently involved in circuit splits, but this case is an exception.)

The court also pointed to other circuit cases, but acknowledged that they did not address settlement of patent litigation, the backdrop of the K-Dur fight.

The patent-scope test accepted in other circuits focuses on the patent holder’s exclusive rights to the patent before it expires. If a patent holder company can exclude everyone else during that period, why can’t it fend off litigation to protect its exclusivity?

Citing an NYU Law Review article, the 3rd Circuit said that “this approach nominally protects intellectual property, not on the strength of a patent holder’s legal rights, but on the strength of its wallet.”

“Many patents,” the 3rd Circuit explained, “are later found to be invalid or not infringed.” A pay-for-delay deal preserves a monopoly “without any assurance that the underlying patent is valid.” It is in the public interest to judicially test and eliminate weak patents, the court wrote.

Because of the circuit split, the tremendous financial stakes, and the FTC’s pay-for-delay priority, the 3rd Circuit decision could very well catch the Supreme Court’s attention, unless it is reversed en banc.

The Supreme Court has declined to review cases that accepted the patent-scope test, which may indicate that the Court does not object to the test and perhaps sees it as the companies do—as allowing settlement. The Court could, of course, reach a different result after briefing and argument.

*Update: On August 3, after this article was originally published in the National Law Journal, Merck gave notice to the 3rd Circuit that it intends to proceed directly to the Supreme Court with a petition for certiorari.

Response to Slate Article About Paul Clement

2012-07-06T16:59:00.000-04:00

I agree with Emily Bazelon about the irony of the results in health care and Arizona immigration, given how things looked after oral argument. (Slate article, linked here, re: Paul Clement and elite Supreme Court advocates.)

Three responses to other points:

1-If we are talking about whether elite Supreme Court advocates are overrated, one of the main points of the Bazelon article, its health care and Arizona immigration references are not good case studies, because both sides in both cases had the elite.

The article compares the pay of Clement and Solicitor General Donald Verrilli, as if to say, “Look, this underpaid government lawyer bested the $1,000-an-hour man. Who needs a superlawyer?” Problem is, Verrilli, a veteran of BigLaw, Jenner & Block, who has handled numerous Supreme Court cases, is a superlawyer himself. Verrilli has taken a pay cut to be in public service—the pay cut Clement took a few years ago, for the same reason. Clement was in the SG's office from 2001-2008, in different roles, including SG.

Verrilli versus Clement in the two big cases was not David versus Goliath. It was Brennan clerk versus Scalia clerk. It was Columbia J.D. versus Harvard J.D. It was Goliath versus Goliath.

2-It is true, as Bazelon notes, that Clement lost health care and Arizona immigration. Those were the big-ticket items. Absolutely. But, Clement "came out of this last Supreme Court term a big loser"? By my count, his term win-loss record is 4-3. The four wins include Perry v. Perez, an important Voting Rights Act case that was a unanimous victory for Clement. Sign me up for the "big loser" badge, if it means winning four Supreme Court cases in one term (or a lifetime).

3-Bazelon rightly notes that there has been little commentary about Clement after the big decisions came down. Two reasons come right to mind:

One is in the article itself, a Tom Goldstein quote: "[Clement] got the very most that was humanly possible out of these cases....With health care in particular, he took what I always regarded as an impossible case and almost pulled it off. My opinion remains unqualified that he is the best."

Also, there is a little thing called karma. Clement is benefiting from it. Although others, on both sides, took the opportunity to slam or score easy political points based on what they saw as Verrilli's poor performance, Clement did not. I remember watching one of the press conferences during the health care argument week, in which Clement praised Verrilli and said in effect that it had been an honor to share the podium with him. Life lesson alert.

Circuit Split Watch: Miranda at Booking

2012-07-03T07:21:00.001-04:00

This article first appeared in the July 2, 2012, issue of the National Law Journal’s Supreme Court Insider.

Under an exception to the Miranda rule, police can ask routine booking questions, such as a suspect’s name and address, without giving a warning. But what about booking questions that have the potential to reveal more?

A pending petition for certiorari, filed by the University of Virginia School of Law’s Supreme Court Litigation Clinic, details a split in the federal appellate courts about the routine booking exception. The Supreme Court has already expressed interest in the case.

The key facts begin with Cecil Alford already under arrest and in the back seat of a police cruiser, incident to an earlier discussion and chase with police. One of the officers noticed that Alford was “kind of squirming” in the back seat. At their destination, police searched the vehicle and found a clear plastic bag with pills and a computer thumb drive under the back seat. The pills were later determined to contain ecstasy.

During the booking process and without a Miranda warning, police asked Alford if the thumb drive, found just under the bag of drugs, was his. Alford said yes, and the drive was stored with Alford’s personal property.

At trial, over Alford’s objection, prosecutors used his admission about the thumb drive to link him to the ecstasy. He was convicted of drug possession by a Texas jury and sentenced to five years in prison.

The Texas Court of Criminal Appeals, the state’s high court for criminal cases, rejected a Miranda challenge by Alford. The police inquiry about the thumb drive, the court held, was permissible as a booking question related to inmate property storage.

Alford filed a petition for certiorari with the Supreme Court, writing that the federal appellate courts “are deeply conflicted in their understanding and interpretation of the routine booking question exception to Miranda.”

The petition describes three approaches, with Texas in the minority.

Five federal appellate courts use a “should have known” standard, meaning that when an officer should have known that a booking question was likely to elicit incriminating information, he must give a Miranda warning.

Four federal appellate courts use an “intent” test; in other words, the officer must intend his questions to yield incriminating information to trigger a Miranda duty.

The D.C. Circuit and the Texas high court follow the “legitimate administrative function” test, which is that if the booking inquiry “is reasonably related to the police’s administrative concerns,” a Miranda warning is not required.

The petition also points to the same three-way split among many state high courts.

Texas waived its right to respond to Alford’s petition. However, the Supreme Court requested a response, due July 12. While a response request does not guarantee that the Court will hear the case, it does show that the petition has the Court’s attention.

Five faculty members from the University of Virginia’s clinic, all former Supreme Court clerks, are on Alford’s petition, including professors Daniel Ortiz and James Ryan.

The counsel of record is David Goldberg, an adjunct faculty member who works at Donahue & Goldberg, a two-man appellate boutique firm. Adjunct faculty John Elwood of Vinson & Elkins and Mark Stancil of Robbins, Russell, Englert, Orseck, Untereiner & Sauber are also on the petition, along with Don Davidson, a solo practitioner who was Alford’s counsel below.

UVA Clinic students take the lead in finding cases, collectively reviewing all federal appellate and state high court decisions. Professor Ortiz confirmed that a student identified Alford from reading Texas cases.

How Paul Clement Wishes He Could Prepare for Argument

2012-06-09T16:07:00.000-04:00

If Paul Clement had his druthers, he would book a round trip flight from DC to LA for some uninterrupted prep time before a big argument. Or so he joked when I recently had the chance to speak with the former Solicitor General about time management.

In reality, Clement uses a similar technique on land, setting aside large chunks of time to prepare for cases and guarding that time "jealously," he said. Fifteen minutes here or there will not do it.

Cooperation with colleagues is another key, in terms of dividing work and meetings, as well as responding to inquiries. (For more on this subject, see Tony Mauro's spotlight of Erin Murphy, an associate who works with Clement at Bancroft.)

Clement finds that his experience as Solicitor General transfers to private practice. The SG not only has heavy administrative duties, in deciding which appeals the government will take, but also a "line" function, as Clement called it, arguing cases.

Clement argued nine times during the current Supreme Court term, including in the marquee health care and Arizona immigration cases—three separate appearances on health care alone. Reports described his presentations as "extraordinary," "tremendous," and "superb."

In addition, Clement has cases at the circuit court level, including the First Circuit Defense of Marriage Act case, expected to reach the Supreme Court in the coming months as a petition for certiorari. The day I spoke with him, he was preparing for an argument in the Second Circuit.

Clement also regularly participates in educational and other events in the legal community. For instance, in May, he spoke at a luncheon honoring Greg Garre and later this month, will be a panelist at the ACS Supreme Court Review.

There is no magic formula for time management, Clement explained. But, by all accounts, he may have found it.

Circuit Split Watch: Is Personal Use of a Work Computer a Federal Crime?

2012-06-05T09:18:00.001-04:00

This article first appeared in the June 4, 2012, issue of the National Law Journal’s Supreme Court Insider.

Could the Computer Fraud and Abuse Act be used to “turn ordinary citizens into criminals”? Or is this fear based on “far-fetched” and “wacky hypotheticals”?

Yes and yes, say the majority and dissent in United States v. Nosal, a recent 9-2 decision of the U.S. Court of Appeals for the 9th Circuit, sitting en banc. Chief Judge Alex Kozinski, writing for the majority, acknowledged that its reading of the CFAA splits from other federal appellate court decisions. A petition for certiorari could be filed this summer.

Employees of an executive search firm allegedly accessed the firm’s computer database to obtain information, which they gave to David Nosal, a former employee. Nosal intended to use the information to compete with the firm.

After this came to light, Nosal was indicted on twenty counts, including trade secret theft, mail fraud, conspiracy, and CFAA violations.

At issue on appeal is the phrase “exceeds authorized access” to a computer under the CFAA.

To Chief Judge Kozinski, access and misuse of information are two separate questions. The employees who allegedly fed Nosal information were authorized to access the firm database. They had permission. The problem was subsequent misuse of firm information. The solution is to prosecute the misuse or look to Congress to amend the CFAA, not to imagine words that are not there.

Otherwise, Kozinski said, scores of unsuspecting people who are authorized to use their work computers for business only, under computer-use policies, but check sports news, send personal emails, or engage in other non-work uses, even occasionally, could be guilty of a federal crime—exceeding authorized access.

Kozinski was also concerned that violating particular sites’ terms of use could be criminalized. For instance, eHarmony’s terms of use prohibit giving “inaccurate, misleading or false information.” Saying that you are “‘tall, dark, and handsome,’ when you’re actually short and homely, will earn you a handsome orange jumpsuit,” Kozinski surmised.

Kozinski noted that the majority’s reading of the CFAA veers from 5th, 7th, and 11th Circuit decisions and invited those circuits to reconsider.

Judge Barry Silverman, in dissent, was unimpressed.

This case is not about “playing sudoku, checking email, fibbing on dating sites, or any of the other activities” the majority discussed, Judge Silverman wrote. It is about “stealing an employer’s valuable information to set up a competing business with the purloined data.” The majority’s “far-fetched” and “wacky hypotheticals” miss the point.

Nosal’s co-conspirators were authorized to be in the firm system for firm business, not to steal its information. Silverman gave this example: “A bank teller is entitled to access a bank’s money for legitimate banking purposes, but not to take the bank’s money for himself.”

Other circuits got it right, Silverman explained. Those courts found that authorized access had been exceeded under the CFAA when a Citigroup employee used information from a company database to commit fraud, a Social Security Administration employee tracked old flames and potential new ones via the SSA system, and an employee of a government contractor used her work access to view then-candidate Barack Obama’s student loan records.

The Obama student loan case, from the 8th Circuit, was not discussed in the majority opinion.

At the request of the United States, the losing party in Nosal, the 9th Circuit stayed its mandate pending filing of a petition for certiorari. The en banc decision was issued in April, so a petition could be filed with the Supreme Court as late as July.

Abortion Ultrasound Cases (Updates and Correction)

2012-05-25T12:21:00.000-04:00

The last Circuit Split Watch article addressed pre-abortion ultrasound laws in three states and a developing circuit split. Updates and a correction:

The cases challenging the North Carolina and Oklahoma laws are still pending. As noted in the article, former acting Solicitor General Walter Dellinger is now counsel in the North Carolina case, signaling its possible Supreme Court track.

The Texas case is essentially over, though, and the ultrasound law there has gone into effect. The only ongoing dispute is about attorneys' fees.

Following the Fifth Circuit ruling discussed in the article, which vacated a preliminary injunction against the Texas law, and later, the denial of rehearing en banc, the plaintiffs did not appeal to the U.S. Supreme Court. (Their window to appeal closed earlier than reported in the original article, due to further action in the district court; see below. In any case, plaintiffs did not ask the Supreme Court to step in.)

On remand from the Fifth Circuit, the district court judge entered summary judgment for the state defendants. However, he did so unconvinced, explaining that "the legal principles articulated by the [Fifth Circuit] left little room for meaningful discussion." The plaintiffs did not appeal that summary judgment ruling to the Fifth Circuit.

The Center for Reproductive Rights represents plaintiffs in the Texas, North Carolina, and Oklahoma cases. One can only assume that it saw the North Carolina and Oklahoma cases as better vehicles.

Although the Texas case is over, it remains significant—one side of a developing circuit split that could very well end up at the Supreme Court.

Garre Receives Rex Lee Award, Thanks Two Chief Justices

2012-05-21T22:08:00.000-04:00

Today, Greg Garre became the fourth Solicitor General to win the Rex Lee Advocacy Award, presented at the Washington Court Hotel in Washington, D.C.

Garre thanked those who have helped him in his career, including Chief Justice John Roberts, his mentor at Hogan & Hartson (now Hogan Lovells), and Chief Justice William Rehnquist, for whom he clerked.

Garre chairs the Supreme Court and Appellate Practice Group at Latham & Watkins and served as Solicitor General under President George W. Bush. Garre's Latham bio notes that he "has argued 34 cases before the Supreme Court, including cases in each of the past eleven terms." He is an alum of the George Washington University Law School. Dean Paul Schiff Berman of GW Law was at the luncheon.

Tom Lee, Utah Supreme Court Justice, and Mike Lee, U.S. Senator from Utah, were both on hand for the award presentation and luncheon named for their late father, who served as Solicitor General under Ronald Reagan. Justice Lee spoke, calling his father his hero, mentor, and best friend. Senator Lee, in a statement to Appellate Daily, said that he is honored that his father is still remembered so many years after his death.

The J. Reuben Clark Law Society presents the Rex Lee award annually to a distinguished attorney. Since the award began in 2001, most recipients have served at one time in the Solicitor General's Office, including four Solicitors General: Paul Clement, Ted Olson, Seth Waxman, and now, Greg Garre.

Clement attended the luncheon and introduced Garre. He described different skills that Garre had honed in different positions in the Solicitor General's office, ranging from the assistant's case-specific knowledge, to the deputy's mastery of substantive areas of the law, to the Solicitor General's big-picture perspective.

Garre has been in the news recently. The University of Texas hired him in connection with a closely watched affirmative action case to be heard in the Supreme Court's upcoming term. Maureen Mahoney, Garre's predecessor as appellate chair at Latham, successfully argued for the University of Michigan Law School in Grutter v. Bollinger, a landmark affirmative action case decided by the Supreme Court in 2003. Mahoney, a past Rex Lee award recipient, is also on the Texas case.

The J. Reuben Clark Law Society is associated with Brigham Young University and its sponsor, the Church of Jesus Christ of Latter-day Saints. Rex Lee served as president of BYU and prior to that, as its first law dean.

Circuit Split Watch: A New Abortion Battleground

2012-05-01T10:03:00.001-04:00

This article first appeared in the April 30, 2012, issue of the National Law Journal's Supreme Court Insider.

In a matter of days, a new battle over abortion could reach the U.S. Supreme Court. At issue is whether states can require doctors to perform ultrasounds on women seeking abortions, and to display and describe the fetal images to them. Federal courts have recently split on the question.

According to an April report from the Guttmacher Institute, a pro-choice think tank, more than twenty states regulate pre-abortion ultrasounds. But provisions vary, ranging from written information provided to mandatory ultrasounds. Three states, North Carolina, Texas, and Oklahoma, have the most stringent requirements.

Under North Carolina law, the doctor must perform an ultrasound on a woman seeking an abortion and then display images from the ultrasound to her, noting “the presence, location, and dimensions of the unborn child” and describing “external members and internal organs, if present and viewable.”

Several North Carolina doctors and other health care providers challenged the constitutionality of the law in Stuart v. Huff.

Judge Catherine Eagles of the U.S. District Court for the Middle District of North Carolina preliminarily enjoined the “speech-and-display requirements,” as she called them.

“The First Amendment,” Judge Eagles wrote, “generally includes the right to refuse to engage in speech compelled by the government.” The North Carolina law requires speech via words and imagery, “even when the provider does not want to deliver the message and even when the patients affirmatively do not wish to see it or hear it,” she said.

Eagles also found “no medical purpose” in the speech-and-display requirements.

An order in the case, denying intervention of additional parties, is on appeal at the U.S. Court of Appeals for the 4th Circuit, but the case itself remains before the district court in North Carolina. A trial is set for January 2013.

Walter Dellinger, a prominent Supreme Court advocate with O’Melveny & Myers, who served as acting Solicitor General of the United States, recently entered an appearance in the 4th Circuit for the plaintiffs, opposing intervention. Dellinger’s involvement, in what could be considered a side issue, signals the high-profile nature of the case as a whole and its possible Supreme Court track.

Like North Carolina, Texas also has a mandatory ultrasound law with speech-and-display requirements. However, a federal appeals court has upheld the Texas law.

Writing for a unanimous three-judge panel in Texas Medical Providers Performing Abortion Services v. Lakey, Chief Judge Edith Jones of the U.S. Court of Appeals for the 5th Circuit declared that the “disclosures of a sonogram . . . and [its] medical descriptions are the epitome of truthful, non-misleadling information,” a reference to language in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 Supreme Court decision.

Chief Judge Jones maintained that the Texas disclosures are “more graphic and scientifically up-to-date,” but “not different in kind” than those “discussed [and approved] in Casey—probable gestational age of the fetus and printed material showing a baby’s general prenatal development stages.”

Jones rejected what she saw as the assumption that Casey is “a constitutional ceiling for regulation of informed consent to abortion, not a set of principles to be applied to the states’ legislative decisions.”

The 5th Circuit denied rehearing en banc in February. As a result, a petition for certiorari must be filed with the Supreme Court by May, absent an extension.

Although the federal circuit split is still developing, the Supreme Court may decide to review the ultrasound question, because of its nationwide importance. From the Court’s action in the coming months, whatever that action is, other states will take cues about their boundaries in the future.

A state trial court in Oklahoma recently struck down that state’s ultrasound law, which also includes speech-and-display requirements.