Court Hearing Utah's Same-Sex Marriage Appeal Lags in Public Access

The U.S. Supreme Court today stayed the federal district court's ruling in Kitchen, "pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit." The district court ruling had allowed same-sex marriage in Utah.

An argument in the potentially landmark case is coming to the Denver federal appeals court in the next several months.

The Tenth Circuit is one of only three holdout circuits that do not post argument audio online. The others are the Second and Eleventh Circuits, which make audio available via CD purchase. To get Tenth Circuit audio, you need to file a motion stating reasons for seeking access. If granted (which I have been told happens routinely), the court emails an mp3.

Perhaps the Tenth Circuit will make an exception with Kitchen or, perhaps, see this as an opportunity to join most of its sister circuits and post audio online.

Today, the access-leading Ninth Circuit began live streaming audio of all arguments and recently began live streaming video of all en banc arguments.

Links to audio from the ten circuits that post online and the Supreme Court are here.

Appellate Daily has done a series of posts advocating for greater public access to oral argument audio, including Before Supreme Court TV, How About This?, back in 2010. Several circuits have increased access since that time.

Sixth Circuit Posts Argument Audio Online

I noticed some argument audio on the U.S. Court of Appeals for the Sixth Circuit's website and called the Clerk's Office this morning for details.

Per that call, the Sixth Circuit began posting audio at the end of July and plans to continue, going forward. The court is still deciding how long it will keep the audio up. There was no formal announcement, the Clerk's Office said. A link was simply added to the website.

That leaves only the Second, Tenth, and Eleventh Circuits that do not make argument audio available online. A friendly hint, hint, to those courts.

Find links to the now ten federal appellate courts that post audio here.

Argument Audio: The Four Holdout Circuits

Most federal appellate decisions are final, and arguments are an important part of that process. See "Before Supreme Court TV, How About This?" More and more, courts are opening these public proceedings to the public, via the Internet.

On Wednesday, Appellate Daily was able to announce that the D.C. Circuit will post argument audio online, starting in September. The D.C. Circuit joins the U.S. Supreme Court and eight federal appellate courts that post audio online.

That leaves only four holdout circuits.

The Second, Sixth, and Eleventh Circuits offer audio CDs for purchase. The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed. In a phone call this week, the Tenth Circuit clerk's office said those motions are routinely granted.

A few notes on the future:

*The Tenth Circuit seems close to posting online. It already offers free e-audio, just not on its website. It's like the moment when a child is deciding whether to approach or back away from an unfamiliar animal. The Tenth Circuit is curious, but wants to make sure this animal doesn't bite. I think the court will find it doesn't and make the change.

*Perhaps a year ago, I phoned the Second Circuit to inquire about the status of its audio policy. At the time, the clerk's office said that the idea of online access had been floated, but that the court was in the process of a renovation. Once that work was done, the clerk's office said, the court would be in a better position to take up the question. With the renovation now complete, will the Second Circuit increase access?

*The Eleventh Circuit has already made significant progress. Its previous policy was even worse than the D.C. Circuit's: no public access (even for parties and even for closed cases). In 2010, I wrote letters to several circuits, asking for online access to argument audio. Eleventh Circuit Chief Judge Joel Dubina kindly responded that the court would consider the idea, though it did not make immediate change. In 2012, the Eleventh Circuit began offering audio CDs for purchase. With the big leap to public audio already made, perhaps the court will be open to posting online, now just an incremental change? [fn1]

*Posting online would save court staff time in these four circuits. Staff in "CD" circuits would not have to produce CD copies and mail them. The Tenth Circuit could avoid reviewing motions and sending emails. All four circuits could field fewer calls and process fewer forms. Interested parties could just point and click online.

Stay tuned.
____
1) The Fourth Circuit also kindly responded to the 2010 letter and took action within months to put audio on the Internet. As with all courts, the Fourth Circuit undoubtedly had been thinking about changes, independent of outside voices. But it is heartening that the courts do consider citizen viewpoints.

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

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

Dear Chief Judge Garland:

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

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

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

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

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

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

Thank you for your consideration.

Circuit Split Watch: Can Drug Companies Pay for Delay?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Barry Silverman, in dissent, was unimpressed.

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

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

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

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

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

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.

11th Circuit: Some Progress on Argument Audio

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).

Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?

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.

D.C. Circuit: Increased Access to Oral Arguments?

As previously mentioned on this blog, the Supreme Court and seven federal appellate circuits post argument audio on the Internet, free of charge (links here; Appellate Daily sidebar). Six circuits, including the D.C. Circuit, do not.

Perhaps things are changing?

Today, the D.C. Circuit posted a listing on its website, requesting proposals from vendors "to redesign [the court's] entire web presence" (proposal deadline December 30, 2010).

Along with many other requirements, the chosen vendor needs to "support multiple file types for documents," as well as, wait for it, "audio, and video." The listing also states the D.C. Circuit's interest in "explor[ing] options to alert visitors using RSS feeds, [as well as] Twitter updates."

While this listing is preliminary and does not announce or commit to anything, it does show that the D.C. Circuit is looking to the future and putting itself in a position to offer more information to the public through available technologies.

Who knows? In the coming years, we might be listening to, or even watching, arguments from our computers about the detention of suspected terrorists, stem cell research, and climate change, just a few of the nationally and internationally significant issues the D.C. Circuit hears.

The Eleventh and Fourth Circuits have also indicated a willingness to consider increased access to oral arguments. Among other important issues, these two circuits almost certainly will be involved in the health care debate, deciding appeals from district court cases in Florida and Virginia.

Stay tuned.

Post Follow-Up: 11th Circuit Chief Judge Response

Earlier this month, Appellate Daily ran a post advocating greater access to oral argument audio at the circuit court level. Seven circuit courts provide free, online audio access, while six do not. I sent a short letter to the chief judges of those six courts (2d, 4th, 6th, 10th, 11th, and D.C. Circuits), enclosing the post and thanking them for their consideration of increased access.

Chief Judge Joel Dubina of the Eleventh Circuit responded with a kind letter, indicating that he, "or one of our court committees, will present [the idea of increased audio access] at our next court administrative meeting, which is in February 2011. The court can then decide if it wants to change our policy." Full letter here. As noted in the earlier post, the Eleventh Circuit has the most restrictive policy of all circuits (only internal court use; no public access).

Readers who would benefit from increased access to Eleventh Circuit audio may also want to consider writing the court, as the Chief Judge has noted a specific time for consideration of the issue.

Eleventh Circuit: The Judge Camp Mess, First Steps

Per a law.com article, Eleventh Circuit Chief Judge Joel Dubina "has postponed taking any action regarding misconduct proceedings until after the federal charges against Camp are resolved."  Camp is, of course, federal district judge Jack T. Camp (N.D. Ga.), who was arrested last Friday "on federal drug and gun charges."

Although Eleventh Circuit misconduct proceedings will be delayed, Judge Camp's caseload is being reassigned.  On Wednesday, Chief Judge Dubina reassigned one of Camp's cases to another federal district judge, William Stafford.  Ironically, the charges at issue there relate to the defendant's plan to kill federal district judge William Steele and a prosecutor, through a hit man, thus involving three federal district judges in one case: Camp, Stafford, and Steele.

For more on Chief Judge Dubina, see this earlier Appellate Daily: Judges Series spotlight of him.

Judges Series: Chief Judge Joel Dubina

It would be an understatement to say that Chief Judge Joel Dubina of the U.S. Court of Appeals for the Eleventh Circuit has a unique understanding of the federal court system.  He has served as a federal judge since 1983, at four different levels: magistrate, district judge, appellate judge, and now, chief appellate judge.  Among other points of interest, Chief Judge Dubina was on the Elian Gonzalez panel and has climbed Mount Kilimanjaro.  More below:

Eleventh Circuit: Mayoral Race Gets Ugly (For the Lawyers)

In 2006, Daniel Lewis, Christopher (James) Peer, and James Naugle, the incumbent at the time, ran for mayor of Ft. Lauderdale, Florida.  Although Naugle won the race four years ago by a huge margin, the conflict between Lewis and Peer remains; more specifically, between Lewis and Peer's attorneys.  Lewis argues that Peer's attorneys should be sanctioned in relation to a meritless lawsuit filed during the campaign.

Yesterday, the Eleventh Circuit declined to impose sanctions, like the district court before it, but remanded with a strong directive as to one of the attorneys, Richard Rosenbaum: "[T]he district court should keep in mind that attorneys are the filter upon which courts rely to maintain the integrity of, and trust in, our judicial process."  The district court will "contrary to its earlier findings, start[] with our finding that Rosenbaum acted in bad faith."