Tenth Circuit Same-Sex Marriage Arguments: Letter Requesting Online Audio

This letter was sent to Chief Judge Mary Beck Briscoe of the U.S. Court of Appeals for the Tenth Circuit.

February 22, 2014

Dear Chief Judge Briscoe:

This letter is a request for the Tenth Circuit to consider posting argument audio online, as a routine matter, and for the same-sex marriage arguments in April, specifically. My interest is as a lawyer, freelance journalist, and citizen.

The U.S. Supreme Court and ten federal appellate circuits post argument audio to their websites. Only three circuits, including the Tenth Circuit, do not. The Tenth Circuit is the only one of the three that requires a motion to be filed to obtain audio.

The April arguments about the constitutionality of same-sex marriage bans will be part of American legal history, as the country and the courts weigh this important issue. There will be national and even international interest in the arguments. The Tenth Circuit courtroom cannot accommodate that level of interest, nor can any courtroom. Since the proceedings are public, this presents a meaningful gap in public access.

Posting audio of the arguments online would help fill this gap. It would also reduce the administrative burden on Tenth Circuit judges, staff, and persons requesting audio, as motions would not need to be filed or processed.

The Supreme Court, famously cautious on access, has been posting its audio to the Internet since 2010. The Ninth Circuit recently began live streaming audio of all arguments and video of en banc arguments.

It would be greatly appreciated if the Tenth Circuit would review its current policy and join the Supreme Court and most of its sister circuits in offering access to argument audio online, particularly for the April marriage arguments.

Thank you for your consideration.

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.

Circuit Split Watch: Attorney's Fees in Prisoner Litigation

This article first appeared in the November 5, 2013, issue of the National Law Journal’s Supreme Court Brief.

Mary Murguia, one of the newest judges on the U.S. Court of Appeals for the Ninth Circuit, recently took on two of her longest serving colleagues in a dispute over attorney’s fees in prisoner litigation. Murguia has another appeals court, the Sixth Circuit, on her side. The U.S. Supreme Court could be asked to resolve the split.

Judge Stephen Reinhardt, joined by Judge John Noonan, wrote the majority opinion in Woods v. Cervantes. Both have served on the Ninth Circuit since the 1980s. Reinhardt is still active; Noonan has taken senior status. Murguia joined the Ninth Circuit in 2011, though not as a rookie. From 2000 until her elevation, she served as a federal district judge in Arizona.

In the Ninth Circuit case, a California prison official improperly denied dental care to prisoner Earnest Woods, causing him pain and suffering for more than a year. A jury awarded Woods $1,500 in compensatory and punitive damages. After also winning on appeal, Woods sought attorney’s fees totaling $16,800.

The Prison Litigation Reform Act caps attorney’s fees at 150 percent of a money award for “any action brought by a prisoner.” Beyond that limit, “fees shall not be awarded.”

Reinhardt ruled that Woods was entitled to collect his attorney’s fees,** finding that the cap applies only to fees for a trial, an action brought by the prisoner, but not to appeals brought by prison officials.

Murguia, the former district court judge, disagreed, calling the majority’s attempt “to evade the statute’s clear meaning…unconvincing.” The trial and appeal are parts of the same action, she stated.

Citing a unanimous 2004 decision by the Sixth Circuit, Riley v. Kurtz, Murguia urged that the attorney’s fee cap apply to both the trial and appeal. The Supreme Court declined to review the Sixth Circuit case at the time.

“The majority has created a circuit split by awarding attorney fees the statute says ‘shall not’ be awarded,” Murguia concluded.

Reinhardt acknowledged the circuit split, but countered that “we are not required to follow the initial circuit to decide an issue if our own careful analysis” yields a “contrary result.”

The state of California, representing the prison official, filed a petition for rehearing en banc in August. California argued that the majority opinion “blows the lid off the statutory attorney’s fee cap that Congress enacted to lessen the financial burden of prisoner litigation on governmental officials and, ultimately, taxpayers.”

In September, the University of Montana Law School’s Criminal Defense Clinic responded for Woods, accusing the petition of “overriding hyperbole.” The response suggested allowing the issue to percolate through additional circuits.

The Ninth Circuit had directed the clinic to respond to the petition, indicating some level of interest in taking up the matter en banc. Responses to en banc petitions are not automatically allowed.

If the en banc court declines to step in, the case could reach the Supreme Court soon.

Attorney’s fees are already on the high court’s radar.

In the new term, the Supreme Court will hear two cases about fees in patent disputes. Companies have complained that they are forced to settle infringement lawsuits, even frivolous ones, because the costs of litigation are too high. They hope the justices will make it easier to collect attorney’s fees, to deter so-called patent trolls.

Last term, the Supreme Court decided an attorney’s fee case in the context of the National Childhood Vaccine Injury Act and another, without argument, in an abortion protest clash.

Murguia’s brother Carlos is a federal district judge in Kansas, their home state. The two are the first brother and sister pair of federal judges. Another sister, Mary’s identical twin Janet, is the president of the National Council of La Raza, the largest national Hispanic civil rights and advocacy organization in the United States.

____________________

**On the exact amount of attorney's fees to award, the majority referred the matter to its Appellate Commissioner.

Circuit Split Watch: Streaming Live Broadcast Television

This article first appeared in the June 10, 2013, issue of the National Law Journal’s Supreme Court Brief.

Through a service called Aereo, live broadcast television is available on computers in some areas. Many consumers welcome the option, but broadcasters, alleging copyright infringement, do not.

One federal appellate court recently ruled in favor of Aereo, while another is reviewing a contrary result. The U.S. Supreme Court may have the final word.

For eight dollars a month, Aereo subscribers can watch live broadcast television on their computers, tablets and smart phones. Available channels include ABC, CBS, NBC, FOX, PBS and others. Aereo is now in New York City and Boston, as well as surrounding areas. The company plans to expand in the near future to more than twenty cities.

In April, the U.S. Court of Appeals for the Second Circuit, in WNET v. Aereo, Inc., refused to block the streaming service, upholding the lower court’s denial of a preliminary injunction. Circuit Judge Christopher Droney wrote the majority opinion, joined by Judge John Gleeson, visiting from the U.S. District Court for the Eastern District of New York. Circuit Judge Denny Chin vigorously dissented.

Writing for the majority, Droney held that Aereo is essentially an antenna for the new millennium. Over the years, many viewers have used individual rooftop antennas to capture broadcast programming. Aereo uses new technology to do the same thing. Thousands of mini-antennas, about the size of a dime, are installed on boards at Aereo.

“Aereo assigns an individual antenna to each user. No two users share the same antenna at the same time, even if they are watching or recording the same program,” Droney explained.

Not so fast, countered Chin. Aereo transmits “programming without the authorization of the copyright holders and without paying a fee.” And its technology is “a sham,” he said.

Aereo has “no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act.”

The Copyright Act gives copyright holders the exclusive right “to perform the copyrighted work publicly,” which means “in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.”

Chin favorably cited a 2012 preliminary injunction order from the opposite coast involving Aereokiller, a not subtly named Aereo competitor.

In that case, Fox Television Stations, Inc. v. BarryDriller Content Systems, PLC, Judge George Wu of the U.S. District Court for the Central District of California blocked a broadcast-TV-to-Internet service. Like Chin, Wu found that the broadcasters’ exclusive public performance rights had been violated.

The California decision is on appeal and currently being briefed at the U.S. Court of Appeals for the Ninth Circuit. Numerous amici have filed briefs.

The Second Circuit is considering whether to rehear the Aereo case en banc. Chin’s forceful dissent and the fact that one of the judges in the majority was visiting make the full court’s review more likely. Numerous amici have also filed briefs in the Second Circuit.

No matter what happens in either circuit (or in related litigation popping up as Aereo and copycat services expand), a Supreme Court petition is likely, given the financial stakes on both sides.

If the split in authority holds, the issue could be attractive to the Supreme Court. It could also warrant review as an important federal issue affecting a significant industry and consumers nationwide.

Congress could also step in to either nix or allow Aereo-like service by amending the Copyright Act.

FOX’s parent company has stated publicly that it would consider making FOX a pay channel if Aereo is allowed to continue. At least one other network is hedging its bets.

In April, CBS announced that it had purchased a minority interest in Syncbak, which streams broadcast programming live to various devices, in partnership with local television stations.

If other networks follow suit and look for new options, consumers could end up winning, regardless of who wins in court.

Top Five Appellate Daily Posts of 2012

Below are the five most popular Appellate Daily posts of 2012, with a few notes and updates. Thanks to everyone for reading and following the news feed. Hope your 2013 is happy!

1-How Paul Clement Wishes He Could Prepare for Argument

• My interview with the former Solicitor General tops the list this year. It is also the most popular post in the blog's history, by far.

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

• The United States decided not to appeal the Ninth Circuit decision featured in this post, perhaps "scared off by [Chief] Judge Kozinski's opinion" for the en banc majority, according to Professor Orin Kerr quoted in Wired. "It would have been the first document that the [Supreme Court] justices read, and it's a pretty powerful brief against the government's position," said Kerr.
• The computer-use issue is still alive, though. A pending petition for certiorari from the Fourth Circuit on the issue (12-518) gives the Supreme Court the chance to weigh in.

3-Circuit Split Watch: A New Abortion Battleground

• This split is ready and waiting for a vehicle to get it to the Supreme Court. The Oklahoma state court case, mentioned at the end of the post, is the one to watch right now. On December 4, the state supreme court struck down Oklahoma's pre-abortion ultrasound requirement. That day, the state attorney general said in a press release that his office is considering an appeal.
• The Texas federal case is over; it was not appealed to the Supreme Court. The North Carolina federal case is still pending below. See Abortion Ultrasound Cases (Updates and Correction).

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

• The Green Bag recently recognized Judge Wilkinson's book, discussed in this post, in its 2012 Exemplary Legal Writing honors.

5-Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

• Judge Cassell has asked the Supreme Court (12-651) to review the Ninth Circuit decision highlighted in this post. Other petitions could follow in the coming months.

Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

This article first appeared in the October 31, 2012, issue of the National Law Journal’s Supreme Court Insider.

Paul Cassell, a former federal judge, represents child pornography victims in a series of federal appellate cases. In October alone, Cassell notched a win and a loss in two circuit courts and argued in another. The case he won created a circuit split about restitution for victims, which the U.S. Supreme Court will almost certainly be asked to review.

A former clerk to Chief Justice Warren Burger at the Supreme Court and then-Judge Antonin Scalia at the U.S. Court of Appeals for the D.C. Circuit, Cassell served as a federal district judge in Utah from 2002-2007. He is currently a professor at the University of Utah’s S.J. Quinney College of Law. With the assistance of law students in the Utah Appellate Clinic, Cassell has been involved in litigation throughout the country on behalf of victims.

Under 18 U.S.C. § 2259, child pornography victims are entitled to restitution from defendants for losses in several listed categories, among them: medical expenses, therapy costs, lost income, attorneys’ fees, and “any other losses suffered by the victim as a proximate result of the offense.”

The last phrase is the source of the circuit split.

On October 1, in a win for Cassell, the en banc 5th Circuit concluded that the “proximate result” requirement applies only to the last category, “any other losses.” The 5th Circuit acknowledged that its reading of the statute splits with “[a]ll our sister circuits that have addressed this question.”

Eight federal appellate courts have held that proximate cause applies to all losses. Put another way, there must be some direct link between the defendant’s offenses and the victim’s losses.

The split has important consequences.

Under the majority approach, it is more difficult for victims to collect. Defendants who possess or transport images may not cause a direct loss in the same way that producers of images do. The defendants in the 5th Circuit were guilty of possession, making them harder to reach for restitution.

On October 24, just weeks after the 5th Circuit decision, Cassell lost a case in the 9th Circuit, one of the courts that follows the majority rule. The 9th Circuit affirmed its precedent and expressly declined to adopt the 5th Circuit decision.

In an earlier appeal in the same matter, the 9th Circuit said that “the responsibility lies with Congress, not the courts, to develop a scheme to ensure that defendants . . . are held liable for the harms they cause through their participation in the market for child pornography.”

In its October 24 opinion, the 9th Circuit also raised the possibility of Supreme Court intervention.

Both the 5th and 9th Circuit decisions could be appealed to the Supreme Court soon. The clear split on an important, recurring issue of federal law makes them cases to watch. A former federal judge’s participation also gives the split greater visibility.

Work continues in other cases, as well.

According to the Utah College of Law website, quoting one of Cassell’s students, the 5th Circuit decision “came down in our favor about seven minutes before Professor Cassell got up to argue [on restitution before the 7th Circuit]. That decision changed the face of the argument and the feeling in the courtroom.”

The case was argued on October 1 in a special 7th Circuit sitting at the University of Notre Dame Law School and is pending.

Circuit Split Watch: Earning a Return on Seized Money

This article first appeared in the October 3, 2012, issue of the National Law Journal’s Supreme Court Insider.

When the United States seizes and later returns a person’s money, the question arises: Who should get the interest earned while it was in the hands of the government?

In September, the U.S. Court of Appeals for the 3rd Circuit joined the majority in a multi-circuit split on this issue, which centers on competing views of sovereign immunity. The Supreme Court could be asked to weigh in on the question.

Ryan James Craig was convicted of wire fraud and failure to appear at trial in the U.S. District Court for the Middle District of Pennsylvania. The court ordered him to pay restitution and a special assessment totaling almost $13,000. The federal government had already seized over $16,000 from Mr. Craig, who moved to reclaim the excess money.

After significant legal wrangling, including an appeal to the 3rd Circuit, the government returned the excess money. Craig had another restitution order against him in Rhode Island, and the government had wanted the excess money transferred there. However, since the cases were unrelated, it was ultimately determined on appeal that the excess should be returned to Craig.

Craig then brought a motion for interest against the United States, on the amount returned. The district court denied the request and, on appeal, the 3rd Circuit agreed.

Writing for a unanimous panel in United States v. Craig on September 17, Judge Thomas Hardiman looked first to 28 U.S.C. § 2465, an asset forfeiture statute that allows for recovery of interest from the United States, under certain circumstances. Craig, he concluded, did not meet the statutory requirements. In addition, Judge Hardiman determined that Federal Rule of Criminal Procedure 41(g), which deals with return of seized property, does not cover interest.

Hardiman also examined the possibility of recovery as a matter of fairness and equity, citing decisions from seven other federal appellate circuits. Three allow equitable interest claims against the United States, while four do not, Hardiman stated.

The 3rd Circuit reasoned that equity cannot “abrogate the sovereign immunity of the United States”; only express waiver can. An earlier 3rd Circuit opinion had questioned the minority view, but, unlike the recent opinion, it was not precedential.

On the other side of the split, Hardiman cited Carvajal v. United States, among other cases. In Carvajal, a 2008 decision from the 9th Circuit, the government seized from and subsequently returned $75,800 to an individual.

Judge Susan Graber, also writing for a unanimous panel, indicated that interest is simply part of the property that needs to be returned. Sovereign immunity is not a barrier.

If the United States seized a pregnant cow and later, after the cow had given birth, the seizure was found to be in error, the government could not give back the cow and keep the calf, Graber explained, quoting an earlier 9th Circuit decision. Likewise, the government needs to return interest from an improper seizure.

The Supreme Court could soon be asked to resolve the conflict. First, though, there is a pending petition for rehearing en banc in the 3rd Circuit.

“As this Court noted in its opinion in this case,” Craig argued in his petition, “there is a split among other United States Courts of Appeal[s].”

Circuit Split Watch: When Sanctioned Attorneys Can't Pay

This article first appeared in the August 29, 2012, issue of the National Law Journal’s Supreme Court Insider.

Federal appellate courts are split over whether money sanctions issued against an attorney can be reduced when he cannot afford to pay. The question has also split conservative and liberal thought leaders, in unexpected ways. The Supreme Court, which recently decided another costs case, could be asked to resolve the split.

Under 28 U.S.C. § 1927, an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Chief Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit, a respected conservative jurist, has at least two suggestions for errant attorneys who cannot afford to pay: Take it up with the bankruptcy court and possibly find a new career.

In 2009, Easterbrook, writing for a unanimous three-judge panel in Shales v. General Chauffeurs Local Union No. 330, explained that a § 1927 violation “is a form of intentional tort….Damages depend on the victim’s loss, not the wrongdoer’s resources.” If the attorney cannot pay the sanction, he could seek relief in bankruptcy. Further, if the attorney “is poor because people are not willing to pay much, or at all, for his services, then he should turn from the practice of law to some other endeavor where he will do less harm.”

Last month, 9th Circuit Judge Stephen Reinhardt, who has been called a “liberal lion,” rejected the 7th Circuit’s conclusion in Haynes v. City & County of San Francisco. The statute says that the court “may” require an attorney to pay costs, not “must” or “shall”—a clear signal to Reinhardt and the other two panel members that the lower court has discretion to order and adjust costs. He noted that the 2nd Circuit also adopted this “plain meaning” in Oliveri v. Thompson, a 1986 case.

Ordering “sanctions in an amount many times greater than the attorney will ever be able to pay” can be “a futile gesture that does little” to make victims whole, Reinhardt reasoned.

Ironically, the Reinhardt and Easterbrook approaches could be seen as an ideological swap, with the liberal Reinhardt playing the role of textualist and the conservative Easterbrook looking for context outside the words.

While costs will never grab the headlines in the way that affirmative action, same-sex marriage, and other cases in the Supreme Court’s current inbox will, they have gotten the Court’s attention as a day-to-day part of litigation that affects many people.

In May, the Supreme Court decided a costs case involving a different statute. Taniguchi v. Kan Pacific Saipan, Ltd. clarified that costs awarded for interpreters include only oral translation expenses. Like the pending attorney-costs split, Taniguchi also involved a split between the 7th and 9th Circuits—resolved in the 7th Circuit’s favor. (This column previously highlighted Taniguchi.)

Before the attorney-costs issue can reach the Supreme Court, though, there may be a rehearing en banc.

The sanctioned attorney has indicated that he intends to seek rehearing. Although he won on the possible reduction of costs (to be determined on remand by the district court), the 9th Circuit opinion also said that he “engaged in a wide variety of incompetent and unprofessional actions.” The circuit issued a separate unpublished memorandum opinion to that effect.

The 9th Circuit has set an October deadline for his petition.

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.

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: 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.

Update to Circuit Split Watch (Cert Grant)

A Japanese baseball player, the Northern Mariana Islands, and Richard Posner in one case summary.

Today, the U.S. Supreme Court granted certiorari in Taniguchi v. Kan Pacific Saipan, Ltd. (10-1472), spotlighted earlier this year in my Circuit Split Watch column. The link to the Ninth Circuit decision has changed since original publication (current link is here). The case deals with costs awarded for "interpreters" and whether written and spoken translation work is covered.

SCOTUSblog has the briefs, linked here.

Circuit Split Watch: Test-Tube Babies and Social Security

This article first appeared in the September 14, 2011, issue of the National Law Journal's Supreme Court Insider.

When Congress passed the Social Security Act in 1935, the idea of a child being born years after its father’s death might have provoked when-pigs-can-fly laughter. Now, through advances in science, such births are a reality, not to mention a source of controversy.

Federal appellate courts have recently split over the requirements for posthumously conceived children to receive Social Security survivor benefits. One petition for certiorari is already pending before the U.S. Supreme Court and two more could follow soon.

The most recent case in the split, decided at the end of August, is Beeler v. Astrue, from the U.S. Court of Appeals for the 8th Circuit.

Doctors diagnosed Bruce Beeler, an Iowa man in his thirties, with leukemia and recommended chemotherapy. Because he and his fiancée Patti wanted to have children, but understood that the treatment could cause sterility, Bruce had his semen banked at a fertility clinic prior to undergoing chemotherapy. He and Patti married within weeks.

Despite chemotherapy and later, a bone marrow transplant, Bruce Beeler died. Nearly two years later, Mrs. Beeler gave birth to their daughter and subsequently filed for Social Security survivor benefits on the girl’s behalf. The Social Security Administration denied the request, but a federal district court in Iowa disagreed and awarded benefits.

Judge Steven Colloton, a former Rehnquist clerk, writing for a unanimous 8th Circuit panel, reversed the district court and upheld the agency’s denial of benefits. Senior Judge Myron Bright, born in 1919, sixteen years before Social Security was enacted, and Judge Roger Wollman also sat on the panel.

The core dispute before the 8th Circuit was whether the daughter is a “child” of a deceased worker, as defined by the Social Security Act and related regulations. From Mrs. Beeler’s standpoint, the answer is simple: It is undisputed that Bruce, the deceased worker, is the biological father of the girl, so she is his child.

For the agency though, biology is not the end of the story, but a trigger to further inquiry. The next question, as the agency reads the Act, is whether the biological child could inherit under state intestacy law. If so, she is a “child” for purposes of Social Security benefits.

In this case, Iowa intestacy law did not recognize posthumously conceived children as heirs. As a result, the Beelers’ daughter did not qualify as a “child” for Social Security purposes. Iowa has since changed its law, the 8th Circuit noted, but not retroactively. The daughter also did not qualify under several other inapplicable provisions, apart from state law.

In upholding the agency’s state law inquiry, the 8th Circuit explained, it was joining the 4th Circuit on one side of a 2-2 circuit split. On the other side, the 3rd and 9th Circuits do not require further inquiry for biological children.

Three of these four federal appellate decisions are from 2011, with major actions in all three just last month. In August, the 8th Circuit ruled, the Solicitor General filed a petition for certiorari in the 3rd Circuit case, Capato ex rel. B.N.C. v. Commissioner of Social Security, and the 4th Circuit denied rehearing en banc in Schafer v. Astrue. In other words, there could soon be three cert petitions on a conflicting issue of nationwide importance pending before the Supreme Court.

New questions from new technologies are becoming a recurring theme on the Supreme Court’s docket with recent grants on subjects like GPS surveillance, DNA testing, and video games. Posthumous conception and Social Security benefits could be next.

Circuit Split Watch: The Legislative Privilege

This article first appeared in the August 17, 2011, issue of the National Law Journal's Supreme Court Insider.

The U.S. Constitution protects members of Congress from interference in their work by the other branches of government. The scope of this privilege, which aims to ensure legislative independence without enabling misconduct, has recently split two federal appellate circuits and will likely reach the Supreme Court soon as a petition for certiorari.

Under Article I, Section 6 of the Constitution, legislators cannot be questioned about their “Speech or Debate in either House.” The Supreme Court has held that this privilege, which comes from English law predating the Constitution, also covers legislative business more generally. However, the legislative privilege is not unlimited.

On August 1, the U.S. Court of Appeals for the 9th Circuit denied a petition for rehearing en banc in United States v. Renzi. The original panel rejected a legislative privilege claim by former U.S. Rep. Richard Renzi (R-AZ), accused of promising favorable legislation in exchange for a land purchase benefiting him. Prior to bringing charges, federal investigators interviewed Renzi’s aides and reviewed documents from them. Investigators also searched the office of an insurance company Renzi owned, pursuant to a warrant.

In ruling against Renzi, the 9th Circuit expressly disagreed with a 2007 D.C. Circuit decision, United States v. Rayburn House Office Building. Rayburn, which the Supreme Court declined to review at the time, upheld the legislative privilege of then-sitting U.S. Rep. William Jefferson (D-LA).

As part of a criminal investigation, the FBI obtained a warrant and searched Jefferson’s congressional office. For 18 hours, more than a dozen agents reviewed every paper in the office and seized records, as well. Finding the legislative privilege violated, the D.C. Circuit ordered the government to return privileged materials taken in the search, with the district court making privilege determinations. The D.C. Circuit noted that it was the first time in history that the Executive branch had searched the office of a sitting member of Congress. A search of Jefferson’s home, not at issue in Rayburn, turned up a much publicized stash of cash in the freezer.

Despite Jefferson’s evidentiary win, he was tried and convicted for bribery and other crimes in federal court in Virginia. His case is on appeal in the 4th Circuit and tentatively scheduled for oral argument in October.

By ordering privileged materials returned to Jefferson, the D.C. Circuit in Rayburn went too far, the 9th Circuit found. The panel said it could not join the D.C. Circuit in sanctioning a “grandiose, yet apparently shy, privilege of non-disclosure” not recognized by the Supreme Court. Instead of forbidding investigators from reviewing documents that have some legislative references, any privileged portions could simply be redacted before use at trial, the 9th Circuit explained, citing Supreme Court case law.

This circuit split on an issue of nationwide importance, namely the integrity and independence of Congress, has Supreme Court watchers’ attention. Professor Jonathan Adler of Case Western Reserve University School of Law told Roll Call: “We have a circuit split—which is the most common reason for the Supreme Court to take a case—and it’s clear cut.”

Renzi’s case may present vehicle problems, though. Professor Craig Bradley of Indiana University’s Maurer School of Law stated in a telephone interview that Renzi’s alleged land-for-vote scheme was clearly not a “legislative act.” A former Rehnquist clerk, Bradley has written about the Speech or Debate Clause and seen it used in practice. In the 1970s, he worked as an attorney for DOJ’s Public Integrity Section during “Koreagate,” a bribery scandal involving South Korea and members of Congress. Bradley described Renzi’s legislative privilege claim as “weak.”

The 9th Circuit apparently agreed. Renzi lost unanimously and no circuit judge even requested a vote on rehearing. Although not essential, some pushback below can focus the issues and demonstrate to the Supreme Court the need for review.

Also potentially weighing against Renzi are the unprecedented D.C. Circuit facts: the first and only search of a congressional office by the Executive, covering literally every paper there. The Supreme Court could distinguish the 9th and D.C. Circuit cases on that basis and decline to step in.

Ninth Circuit: Prop 8 Standing Question Certified to California Supreme Court

Today, the Ninth Circuit certified the question of standing in the Prop. 8 case to the California Supreme Court, as to the ballot initiative proponents, and denied standing as to Imperial County. The oral argument in the case foreshadowed both actions.

Related links are here.

Ninth Circuit: Video of En Banc Rehearing re: Tasers

This blog has previously covered appellate cases involving police use of Tasers, including two from the Ninth Circuit. Both involved women being tased; one was pregnant. The Ninth Circuit has posted video of the en banc rehearing of these two consolidated cases, held on December 14, 2010.

Prop. 8 Argument: As Expected, With Some Twists

The Prop. 8 argument in a tweet: At least two votes on the merits for striking Prop. 8, if merits reached at all. Panel much as expected, with some twists.

On Monday, the U.S. Court of Appeals for the Ninth Circuit heard oral argument on the constitutionality of California's Proposition 8, which defines marriage as between a man and a woman. Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith heard sessions addressing standing and the merits (totaling roughly 2.5 hours).

Charles Cooper argued for Prop. 8 during both sessions, joined in the first by Robert Tyler for Imperial County. Opposing Prop. 8 were David Boies, during the first session, and Ted Olson, joined by Therese Stewart for San Francisco, during the second.

On standing, the judges were somewhat difficult to read. For instance, Judges Reinhardt and Smith, billed in advance as the liberal and conservative, respectively, both had critical questions for Boies. Smith inquired about the governor's role following a voter initiative. By law, the governor cannot veto such an initiative, so why should he be able to nullify it by not appealing? Reinhardt expressed concern about overturning the voters' initiative and wondered if the standing question should be certified to the California Supreme Court. Reinhardt also doubted Boies' assertion that the district court's injunction of Prop. 8 only applies to the two defendant counties (not Imperial or other counties, conveniently weakening Imperial's standing).

As it happened, though, Imperial's standing appeared weak anyway. For instance, Judge Smith questioned whether the county deputy clerk only performs ministerial duties related to marriage, casting doubt on her standing. Judge Hawkins appeared particularly frustrated with the county, admonishing Tyler to answer yes or no and stop wasting time.

As a side note, Judge Hawkins maintained a very serious (somewhere between "measure twice, cut once" and "take no prisoners") manner and facial expressions throughout the hearing, adding to the intensity of his effective, pointed questions. Judge Reinhardt, on the other hand, enlivened the long argument with occasional humor, for example, ribbing Boies about losing to Olson in Bush v. Gore.

During the merits session, the judges appeared to line up more clearly and as predicted, but not completely. Judges Reinhardt and Hawkins both equated the Prop. 8 case with Romer, where the Supreme Court struck down a voter-approved provision stating that gays were not a protected class in Colorado. When Cooper attempted to distinguish that provision as broader than Prop. 8, Judge Hawkins asked, "So, if you take away a bunch of rights, that's bad. But if you just take away one right, it's OK?"

Perhaps unexpectedly, Judge Smith questioned the rational basis of Prop. 8, since California allows domestic partnerships. In essence, why provide all the rights of marriage to gay people, minus the marriage label? What is the rational basis? However, Judge Smith did seem willing to consider the procreative nature of heterosexual marriage as a possible rational basis for Prop. 8.

No matter the result, today's argument is just a step—albeit an important one. The panel decision, whatever it is, will be appealed, given the deeply held views on both sides.

Thus, the appropriate closing summary tweet may well be: Both sides begin looking at Circuit Rule 35-1 (en banc rehearing) and the Supreme Court Rules.

Circuit Split Watch: GPS Surveillance

On Friday, a federal appellate court kept a circuit split alive.

As Appellate Daily previously reported, the D.C. Circuit held in August that GPS surveillance of a vehicle required a warrant, departing from the Seventh, Eighth, and Ninth Circuits. Friday's D.C. Circuit ruling denied en banc rehearing.

Dissenting from that denial, Chief Judge David Sentelle, joined by three other judges, wrote that "the panel’s decision is inconsistent not only with every other federal circuit which has considered the case, but more importantly, with controlling Supreme Court precedent set forth in United States v. Knotts, 460 U.S. 276 (1983)." Knotts upheld use of a radio transmitter placed in a vehicle without a warrant.

Earlier this year, on the other coast, the Ninth Circuit came to a different conclusion, upholding warrantless GPS surveillance and then denying en banc rehearing. Dissenting from that denial, Chief Judge Alex Kozinski, joined by four other judges, called the upheld surveillance "creepy and un-American" and a far cry from the bygone technology at issue in Knotts. 

The Ninth Circuit case is now at the Supreme Court, with a recently filed petition for certiorari. A D.C. Circuit petition is sure to follow. Given the growing Fourth Amendment implications associated with technology, coupled with the circuit split, not to mention close votes and spirited dissents within those circuits, the Supreme Court will no doubt give these petitions close attention.

It should be noted that the Supreme Court, in 2007, denied certiorari in the Seventh Circuit case (written by Judge Richard Posner). PACER records do not show a cert petition in the Eighth Circuit case.

Appellate Daily, Judges Series: Chief Judge David Sentelle and Chief Judge Alex Kozinski.

Tased: Three Circuits

"Spillcam" and "vuvuzela" may be the top words of 2010, but the word on many police departments' minds lately could very well be "Taser."

Last week alone, the Fourth and Seventh Circuits ruled against police, allowing suits stemming from deadly Taser incidents to go forward.

Also, in December, the Ninth Circuit sitting en banc will rehear two Taser cases that police originally won (not deadly incidents). In Seattle, a simple traffic stop for speeding escalated to tasing when the driver, a pregnant woman, refused to sign paperwork and leave her car. She thought that signing would admit guilt. In Maui, a teenager called police to report a physical altercation between her mother and stepfather. When the police arrived and attempted to arrest the man, the woman stood in front of him and did not move. Police tased her. The original Ninth Circuit panels found that the officers were entitled to qualified immunity, but the en banc decision remains to be seen.

Fourth Circuit-Article and order
Seventh Circuit-Article and opinion
Ninth Circuit-Rehearing notice
Ninth Circuit-Original opinion, Seattle
Ninth Circuit-Original opinion, Maui