Appellate Daily

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.

The Key Word Is Recess: Interview with Senator Mike Lee

2012-04-12T12:13:00.000-04:00

Speaking in a March telephone interview with Appellate Daily, Senator Mike Lee emphasized a point related to his recent no votes. The key word is recess.

A member of the Senate Judiciary Committee, Senator Lee has been voting no on judicial nominees to protest President Obama's January 4th recess appointments of Richard Cordray, as director of the Consumer Financial Protection Bureau, as well as three members of the National Labor Relations Board.

Lee indicated that some news reports about his no votes miss the mark, implying that he objects to recess appointments as a general category. No, says Lee.

The Constitution provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

Statements posted to Lee's website explain that "at the time of the appointments, the Senate was not in recess but rather was meeting approximately every 72 hours in pro-forma sessions." Also, "the Constitution specifically requires that each chamber of Congress must consent to the adjournment of the other chamber if the adjournment is to last longer than three days. At the time of the appointments, the House had not consented to the adjournment of the Senate for a period longer than three days."

In short, Lee's objection is that the Senate was not in recess, so the president could not make recess appointments.

Lee acknowledges that the Office of Legal Counsel takes a contrary view, namely that pro-forma sessions, where no business is conducted, do not break up a recess. According to the OLC, the Senate was in recess from January 3-23, at least, and pro-forma sessions did not change that. The Senate's actual availability to advise and consent defines a recess, not the consent-to-adjourn requirement, in the OLC's analysis.

Both sides see a constitutional encroachment: Lee, to the Senate's constitutional advise-and-consent role, through appointments that evade review, and the OLC, to the president's constitutional recess appointment power, through pro-forma sessions that prevent such appointments.

Lee also acknowledges that his Senate colleagues have not joined his method of protest (though others do agree with his underlying objection). Court action may be another path to resolving the controversy, but Lee believes it is not quick enough.

On another note, Lee commented on Justices Scalia and Breyer speaking in a Senate Judiciary Committee hearing last fall. A former clerk to Justice Alito, Lee had the opportunity to ask the justices questions, which was "surreal" and an honor, he recalled.

Circuit Split Watch: Graphic Tobacco Warnings

2012-04-03T10:53:00.000-04:00

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

The Family Smoking Prevention and Tobacco Control Act requires that color images, along with written warnings, cover the top half of all cigarette packs, front and back, and 20 percent of advertising. Among the images are diseased lungs, a cadaver with a stapled chest, and a smoker breathing through a hole in his throat.

Tobacco companies have challenged these graphic warnings in federal court, yielding, in recent weeks, split results that could lead to U.S. Supreme Court review.

Although the images are grim, the reality is grim, too, supporters argue.

The Act reports that use of tobacco “is the foremost preventable cause of premature death in America. It causes over 400,000 deaths in the United States each year, and approximately 8,600,000 Americans have chronic illnesses related to smoking.”

In a video posted on YouTube, “New Cigarette Health Warnings: Protecting Public Health,” Health and Human Services Secretary Kathleen Sebelius declares that the graphic images “tell the truth” about the negative health effects of smoking more effectively than words alone. Put another way, a picture is worth a thousand words.

But, do these graphic pictures go too far? Judge Richard Leon of the U.S. District Court for the District of Columbia thinks so. Granting summary judgment to the tobacco companies on February 29 in R.J. Reynolds Tobacco Co. v. FDA, Judge Leon said that the images violate the companies’ First Amendment rights by forcing them to be “the Government’s mouthpiece.” To salvage the warnings, which it views as constitutional, the FDA appealed. Oral argument is set for April 10 at the U.S. Court of Appeals for the D.C. Circuit.

On March 19, the U.S. Court of Appeals for the Sixth Circuit came to a different conclusion, by a 2-1 vote in Discount Tobacco City & Lottery, Inc. v. United States. Judge Jane Stranch, writing for herself and Judge Michael Barrett of the Southern District of Ohio, sitting by designation, upheld the graphic warnings. Judge Eric Clay dissented.

The format of the Sixth Circuit decision is unusual in that there are two majority opinions, each covering various issues. The Stranch opinion contains the majority ruling on the graphic warnings. The majority looked to the words of the Act requiring color images, analyzing the case as a facial challenge, while the dissent also took the actual images, which were chosen later, into account.

Judge Stranch noted that the current textual warnings are not effectively reaching many people, such as the key youth population.

“A warning that is not noticed, read, or understood by consumers does not serve its function. The new warnings rationally address these problems by being larger and including graphics,” Stranch explained.

Judge Clay disagreed, referencing the D.C. district court decision. Clay found that the government had not demonstrated that the graphic warnings are “reasonably tailored.” Instead, they play on fear and “attempt to flagrantly manipulate the emotions of consumers.”

Responding to an email inquiry about whether the tobacco companies intend to seek rehearing en banc from the Sixth Circuit or appeal directly to the U.S. Supreme Court, one of the companies’ attorneys, Floyd Abrams of Cahill Gordon & Reindel in New York City, stated that all options are under consideration.

Even if the case is reheard en banc at the circuit level, the Supreme Court is almost certain to have the final say. Because a federal statute with nationwide economic and health implications is at stake, it is likely that the issue would garner the Court’s attention.

The graphic warnings were to have taken effect in September 2012, but that date is now uncertain due to the ongoing litigation, according to an FDA statement on its website.

Judge Wilkinson on Cri de Coeur, Law Clerks, and a Germophobic Third Circuit

2012-03-13T16:44:00.001-04:00

Speaking at Duke Law School today, Judge J. Harvie Wilkinson called his new book a "cri de coeur" that criticizes judicial activism on the right and the left.

Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance attempts to promote judicial restraint, Judge Wilkinson explained.

Wilkinson has sat on the U.S. Court of Appeals for the Fourth Circuit since 1984, and before that, served as a law clerk to U.S. Supreme Court Justice Lewis Powell, editorial page editor for the Virginian-Pilot in Norfolk, and law professor.

As a law student, he put his studies on hold to run for Congress at age 25. His opponent had a billboard encouraging voters to return him, the incumbent, to Congress and return Wilkinson to law school. When he lost, Wilkinson quipped that he got a mandate from the voters: return to school.

Wilkinson's new book is dedicated to his law clerks, who, he said, are one of the best parts of his job. He values "intergenerational relationships" because each can learn from the other.

Being at Duke, Wilkinson took time to praise his three North Carolina colleagues on the Fourth Circuit: Albert Diaz, Allyson Duncan, and James Wynn.

Judge Wilkinson predicted that Diaz, who has been on the circuit just over a year, will come to be widely recognized as one of the best federal appellate judges in the country. Wilkinson also told how Diaz helped him in relation to the death of Fourth Circuit Judge Blane Michael. Michael and Wilkinson, both runners, had been friends and liked to go for runs in a particular park. When Michael died, Wilkinson was so sad that he wondered if he could ever run in that park again. But, Diaz invited Wilkinson to go running one day, which returned Wilkinson to the park. Wilkinson was sure that Diaz, a former Marine, had slowed his pace, so that Wilkinson could keep up.

The Fourth Circuit tradition of judges and attorneys shaking hands after oral argument was the topic of a humorous story shared today. Judge Wilkinson tried to convince a colleague on the Third Circuit, the late Judge Edward Becker, that his court should try handshaking, as well. Becker asked other judges in his circuit and looped back to Wilkinson with a negative response. They felt it would spread too many germs.

Circuit Split Watch: Counseling Standards v. Religious Values

2012-02-28T11:46:00.001-05:00

This article first appeared in the February 27, 2012, issue of the National Law Journal’s Supreme Court Insider.

The U.S. Supreme Court may soon have the chance to review conflicting decisions about students who have been expelled from state university counseling programs for requesting not to counsel gay clients or wanting to “convert” them.

In both cases, the students allege violations of their First Amendment free speech and expression rights, while the university defendants allege student violations of the American Counseling Association standards.

Counselors and clients can have very different outlooks. As Will Meyerhofer, a therapist and lawyer who regularly contributes to Above the Law, writes, “I’ve worked with clients who collect guns, and eat meat and live for professional sports,” while he, the counselor, is “a gun control-espousing, vegetarian esthete.”

But, what about differing religious values?

Although she had not yet entered the one-on-one phase of her counseling program, Jennifer Keeton, a Christian student at Augusta State University in Georgia, had actively espoused “conversion” to heterosexuality for gay clients.

“Every profession has its own ethical codes and dictates,” explained Judge Rosemary Barkett for a three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Keeton v. Anderson-Wiley, which rejected the student’s appeal. “Lawyers must present legal arguments on behalf of their clients, notwithstanding their personal views. Judges must apply the law, even when they disagree with it. So too counselors must refrain from imposing their moral and religious values on their clients.”

Judge William Pryor, a conservative appointee of President George W. Bush, was part of the unanimous panel.

In the 6th Circuit, on the other hand, the student won. Judge Jeffrey Sutton, another conservative Bush appointee, wrote for the unanimous three-judge panel in Ward v. Polite. Sutton recently made news for crossing party lines to uphold President Obama’s health care law.

Julea Ward, a counseling student at Eastern Michigan University who is a Christian, asked that a gay client seeking relationship counseling be referred to someone else. Ward’s supervisor allowed the referral, but disciplinary proceedings followed.

“Tolerance is a two-way street,” Judge Sutton stated, finding that the case should go to a jury. The relevant professional standards do “not require an atheist counselor to tell a person of faith that there is a God if the client is wrestling with faith-based issues.” Sutton indicated that Ward’s referral was in the client’s best interest because he “would receive treatment from a counselor better suited to discuss his relationship issues.”

Sutton distinguished the 11th Circuit decision in Keeton, noting that the student there intended “to engage in conversion therapy,” which “all agree” is a violation of professional standards. Rather than “insisting on changing her clients, Ward asked only that the university not change her—that it permit her to refer some clients in some settings.”

Sutton’s blessing of Keeton, along with Pryor’s joining in it, may forecast how some conservatives on the Supreme Court could view the case; namely, as an easier call than Ward. Others would argue, though, that the distinction Sutton draws is not meaningful, because requesting not to counsel a gay client and planning to proselytize to that client are fruit from the same tree, and both need to be reviewed.

The Supreme Court could soon have that opportunity. The 11th Circuit recently denied rehearing en banc in Keeton, so a petition for certiorari could be filed shortly. The 6th Circuit is currently considering whether to grant a petition for rehearing en banc in Ward.

Taniguchi Argument: One Hour About One Word

2012-02-22T12:23:00.000-05:00

Disclosure: The author worked at Jones Day with the attorneys representing petitioner, prior to the firm being involved in this case.

On Tuesday, the U.S. Supreme Court managed to enliven an argument about statutory interpretation—one hour about one word—with dares, nature imagery, and barbs, albeit directed at a dictionary.

If the justices' questions and tone are accurate indicators, the petitioner in Taniguchi v. Kan Pacific Saipan, Ltd. is headed for a win. The case comes from the Northern Mariana Islands via the U.S. Court of Appeals for the Ninth Circuit.

The word at issue in the case is interpreter. Michael Fried, a Jones Day partner representing petitioner Taniguchi, argued that an interpreter deciphers the spoken word. Dan Himmelfarb, a Mayer Brown partner representing respondent Kan Pacific, would also put written translation under the interpreter's umbrella.

This dispute matters because the winning party in federal litigation can seek costs listed in 28 U.S.C. § 1920, including costs for interpreters. The winner wants to maximize recovery through more covered items, while the loser wants the opposite.

Several justices, in different ways, expressed skepticism about written translation by interpreters. Justice Scalia pointed out that the fly page of a foreign-language book translated into English will say "John Smith, Trans.," not "John Smith, Int."

Justice Alito asked Himmelfarb, of 1,000 references to the word interpreter in news articles, how many would be about written translation? After Himmelfarb guessed that more than fifty percent may refer to the spoken word only (a variation on Alito's question), Justice Kagan quipped, "You are like daring Justice Alito to go do this now." (The current transcript, subject to final review, attributes this remark to Justice Sotomayor, but this is an error.)

In her own questioning, Kagan used imagery, acknowledging that there may be some hard cases, but "the fact that there are some few minutes in every 24-hour period where it's hard to say that something is night or day does not mean that there is no night and that there is not day. And that seems to me what the question is here."

On the other hand, Justice Sotomayor highlighted precedent for awarding written translation costs. "[T]hat's what the courts have been doing," she explained, "and the world hasn't crashed." Or, as Justice Breyer put it, a court may decide to "let sleeping dogs lie."

When Himmelfarb indicated that Black's Law Dictionary defines interpreter to include both written and spoken translation, Justice Scalia jumped in, suggesting that Black's simply incorporated the prior case law. Noting that its editor, Bryan Garner, has been his co-author, "I feel obliged to spring to his defense," Scalia said. Scalia also scoffed at another dictionary relied on by Kan Pacific as "not...very good," observing that it equates "imply" and "infer."

Although justices, at times, play devil's advocate, the strong overall sense of the Taniguchi argument was that the Court will construe interpreter narrowly, as a night and day issue.

Circuit Split Watch: Lost in Translation (prior coverage, linked here)

Prop. 8: Why the Next Three Weeks Matter

2012-02-11T20:03:00.000-05:00

Following the Prop. 8 decision earlier this week, several newscasts reported that the U.S. Court of Appeals for the Ninth Circuit had stayed its ruling pending appeal, meaning that same-sex marriages could not resume until all appeals are completed. But, in fact, the Ninth Circuit said that the stay "remains in effect pending issuance of the mandate."

Why does this matter?

A stay pending appeal would have given Prop. 8 supporters a leisurely ninety days to file a petition for certiorari with the U.S. Supreme Court.

A stay pending mandate means that they must do something within three weeks. Why and what?

Under applicable rules (linked below), the mandate will issue twenty-one days following the Prop. 8 decision. In other words, without further action, the current stay is only good for three weeks.

As a possible next step, Prop. 8 supporters could file a motion with the Ninth Circuit to stay the mandate pending filing of their petition for certiorari.

They could also make this stay request to the Supreme Court, or more precisely, Anthony Kennedy, the justice assigned to the Ninth Circuit. While Justice Kennedy could enter a stay, the lower court must be asked first, "[e]xcept in the most extraordinary circumstances," per Supreme Court Rule 23.

Supporters also have the option to petition the Ninth Circuit for rehearing en banc within fourteen days following the Prop. 8 decision. But, they may wish to bypass rehearing, since an en banc victory in the Ninth Circuit seems unlikely.

In any case, expect action soon.

FRAP and Ninth Circuit Rules

35 (rehearing en banc deadline same as for rehearing)

40 (rehearing deadline=14 days after judgment)

41 (mandate issues 7 days after rehearing deadline)

Supreme Court Rule
23 (present stay application to individual Justice; seek lower court relief first)

Circuit Split Watch: Mercedes-Benz and the (very) long arm of the law

2012-02-02T14:29:00.000-05:00

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

Can a suit alleging brutal suppression of union agitators at a Mercedes-Benz plant in Argentina be heard in the United States? The U.S. Court of Appeals for the 9th Circuit recently said yes. This result perpetuates a circuit split about U.S. jurisdiction over foreign corporations, which the Supreme Court could soon review. The Court has already agreed to hear argument February 28 on related issues.

The plaintiffs in Bauman v. DaimlerChrysler Corp. allege that Mercedes-Benz Argentina, a subsidiary of Daimler, a German corporation, coordinated with the Argentine military to kidnap, torture, and kill employees it viewed as subversive, beginning around 1976. The plaintiffs are alleged victims and their family members. All are citizens of Argentina, except one who is a Chilean citizen.

So, why are U.S. courts involved?

The Alien Tort Statute (“ATS”) and Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 and its note, open that door. ATS provides that U.S. district courts can hear civil tort actions brought by aliens for violations of the law of nations or a U.S. treaty. TVPA permits liability for torture and killings under color of a foreign nation’s law. But, ATS and TVPA do not have an unlimited reach.

The plaintiffs filed suit against Daimler in California federal district court, which dismissed the case for lack of jurisdiction. The 9th Circuit originally agreed. Then, in a rare move, the panel granted rehearing and two judges changed their votes. What had originally been a 2-1 win for Daimler became a 3-0 loss.

The unanimous 9th Circuit panel held that foreign corporations like Daimler “reap enormous profits from the sale of their goods in the United States.” It would be strange, the panel reasoned, “if the manufacturer of Mercedes-Benz vehicles, which are sold in California in vast numbers by its American subsidiary, for use on the state’s streets and highways, could not be required to appear in the federal courts of that state.”

In November 2011, a majority of the 9th Circuit’s active judges voted to deny rehearing en banc, without explanation, but eight judges dissented. The 9th is one of only a few circuits where eight active judges are not a majority.

To the eight-judge dissent, the decision pushes “jurisdiction far beyond its breaking point” and “is an affront to due process,” since the actors and action were both abroad. The U.S. Mercedes-Benz subsidiary, the basis for U.S. jurisdiction according to the panel, is a separate entity from the Argentine Mercedes-Benz subsidiary accused of misconduct.

Further, the court’s use of the agency test is “contrary to the law of at least six of our sister circuits,” the dissent maintained.

The agency test looks at whether a foreign corporation may be subject to jurisdiction through a subsidiary. The principal question is whether the subsidiary’s functions are “sufficiently important” to the corporation such that if the subsidiary did not perform them, the corporation would step in and perform the functions itself. The panel, citing 9th Circuit precedent that recognizes the agency test (drawn from 2nd Circuit case law), determined that if Mercedes-Benz stopped operating in the United States, Daimler would step in to sell its cars or hire another representative. The panel found jurisdiction over Daimler.

Citing 4th, 5th, 6th, 7th, 8th, and 11th Circuit decisions issued between 1990 and 2008, the dissent observed that these circuits do not use the agency test. Several focus instead on control, called the alter ego test. If a parent heavily controls a subsidiary, it can be open to suit via that subsidiary. The dissent concluded that the 9th Circuit’s approach in the Mercedes-Benz case “would be improper in many other circuits.”

Since the 9th Circuit denied rehearing en banc in November, a petition for certiorari could be filed with the Supreme Court soon. The circuit split, along with concerns about international comity, could raise the case’s profile.

On February 28, the Supreme Court is scheduled to hear argument on related issues in Kiobel v. Royal Dutch Petroleum Co. and Mohamad v. Palestinian Authority. These cases ask whether ATS and TVPA even apply to corporations or organizations. Since the Mercedes-Benz plaintiffs seek to hold a corporation liable under those laws, Kiobel and Mohamad are also cases to watch.

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.