Circuit Split Watch: Counseling Standards v. Religious Values

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

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

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

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

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.

Top Appellate Daily Posts of 2011

Below are links to the most popular Appellate Daily posts of 2011. Thanks to everyone for reading and following on Twitter. Thanks also to the National Law Journal for the opportunity to do the Circuit Split Watch columns. Happy New Year!

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

2-Circuit Split Watch: Test-Tube Babies and Social Security
       *The U.S. Supreme Court granted certiorari in Capato and has set argument for March 19, 2012.

3-Fifth Circuit Issues Proposed En Banc Rule, Addressing Previous Kerfuffle
       *The rule became final on October 31, 2011 (order here).

4-Federal Appellate Judges: Gender and Race Stats

5-Circuit Split Watch: The First Amendment, Students, and the Internet
        *The U.S. Supreme Court has J.S. and Layshock (filed in one petition) scheduled for its January 13, 2012 conference.

Twitter Accounts of SCOTUS Reporters

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

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)

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

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)

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.