This article first appeared in the August 14,
2013, issue of the National Law Journal’s Supreme Court Brief.
Patricia
Millett, one of President Obama’s three pending nominees to the U.S. Court of
Appeals for the D.C. Circuit, is a counsel of record in Samantar v. Yousuf, now making its second trip to the Supreme Court.
The petition
in the case, which Millett opposes, highlights a circuit split in the lower
courts about immunity for foreign officials. The Supreme Court has already
shown interest in the petition twice and may decide to hear the case in the
upcoming term.
During a recent
Senate Judiciary Committee hearing on Millett’s nomination, Senator Chris Coons
(D-Del.) asked her about Samantar, which
she argued and won at the high court in 2010. Millett, who co-heads the Supreme
Court practice at Akin Gump, represents individuals who allege that Mohamed Ali
Samantar is responsible for atrocities, including torture and murder, committed
under his command as defense minister and then prime minister of Somalia. He
currently lives in Virginia.
In 2010, the justices
found that Samantar was not entitled to immunity under the Foreign Sovereign
Immunities Act, but left open the question of whether common law immunity might
apply. That is the issue in the latest case.
On remand,
the Fourth
Circuit rejected common law immunity for Samantar. The court noted that
“crimes or human rights violations” contrary to international norms, also
called jus cogens, can wipe away
immunity.
The pending
petition, filed by Shay Dvoretzky, a partner at Jones Day and former Scalia
clerk who represented Samantar at the Supreme Court in 2010, contends that three
federal appellate courts disagree with the Fourth Circuit.
Most
recently, the Second
Circuit held in 2009: “A claim premised on the violation of jus cogens does not withstand foreign
sovereign immunity.”
Millett, for
the respondents, disputes that a circuit split exists, in part because the
cases the petition identifies as splitting from the Fourth Circuit predate the 2010
Samantar decision. In other words,
they did not incorporate the Supreme Court’s latest statement on immunity for
foreign officials.
In addition, the
response brief points out that, after the Court’s 2010 decision, the U.S. State
Department rejected immunity for Samantar. The State Department determined that
he “is a former official of a state with no current government formally
recognized by the United States.” As a result, no recognized government can “assert
or waive any immunity Samantar might enjoy.” The United States recently recognized a government in Somalia, which
requested immunity for Samantar, but the State Department has not, to date,
changed its recommendation.
The case has
the Supreme Court’s attention.
On June 24, after
briefing by both sides, the justices called for the views of the Solicitor
General (CVSG). According to research published in a 2009 George Mason Law Review article, “the grant rate is considerably
higher following a CVSG,” but it does not guarantee that the Court will hear a case.
Earlier, the
Court requested a response to Samantar’s latest petition, after that
opportunity was initially waived. Though less of an indicator than a CVSG, the
response request also increases the odds of a grant, according to the 2009
research.
The fact that
the question at issue is one the Court itself left open earlier is another factor
favoring review.
Will Samantar be Millett’s last Supreme Court
case (or one of the last) in her history-making career as an advocate before
the Court? The Senate Judiciary Committee already approved her nomination, along
party lines, but the full Senate has not yet voted.
For most of
her career, Millett served in the U.S. Department of Justice in the Solicitor
General’s Office and in the Civil Division’s Appellate Section, under administrations
of both parties. As Senator Ted Cruz (R-Tex.) told Millett at her hearing, she
finds herself in the midst of a larger battle over the D.C. Circuit, which is
not about her qualifications.
Millett and fellow
Solicitor General office alum Lisa Blatt, who heads Arnold & Porter’s
Supreme Court practice, made history in
recent years by passing the thirty-argument mark, the most ever for female
advocates before the high court. Blatt now holds the lead with thirty-three
arguments to Millett’s thirty-two.
The author assisted with the briefs in
the 2010 Samantar case as an attorney at Jones Day.
