Thursday, August 15, 2013

Circuit Split Watch: Patricia Millett's Last Supreme Court Case?

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.