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.

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.

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.

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: Gun Rights Outside the Home

This article first appeared in the January 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

The U.S. Supreme Court’s landmark Heller decision declared an individual right to possess a firearm at home, but left open the question of gun rights in public. The high court could be asked to weigh in soon on this open question, which has split federal appellate courts and again been part of the national conversation since the Newtown shootings.

In a December opinion, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, writing for himself and Judge Joel Flaum, honed in on the words “keep and bear” in the Second Amendment, drawing meaning from each one.

“The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home,” Posner stated. “A right to bear arms thus implies a right to carry a loaded gun outside the home.” This reading, Posner concluded, is consistent with Heller. The majority struck down an Illinois ban on carrying guns in public.

Dissenting, Judge Ann Claire Williams was not convinced that Heller implied a “right to have ready-to-use firearms” outside the home.

Williams looked to “a long history of regulating arms in public,” including state laws adopted during the founding era. Predating those laws, the 1328 Statute of Northampton provided that no one may “go nor ride armed by night nor by day, in Fairs, markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere.”

Both Posner and Williams cited recent decisions from the 2nd and 4th Circuits, which upheld public-carry restrictions (a New York law and a National Park Service regulation, respectively).

In November, a unanimous 2nd Circuit panel found “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety.”

A unanimous 4th Circuit held in 2011 that “as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” As to extending Heller, two of the three judges said it is “prudent to await direction from the [Supreme] Court.”

Posner questioned both opinions and distinguished the Illinois ban as “the most restrictive gun law of any of the 50 states.” Along these lines and in an unusual move, Posner gave the Illinois legislature 180 days to revise the ban. The new law can “impose reasonable limitations, consistent with the public safety and the Second Amendment,” he explained.

If Illinois takes this option, it could lessen the practical impact of the circuit split. The revised restrictions could be similar to those upheld; in fact, the Supreme Court declined to review the 4th Circuit public-carry decision. A petition for certiorari is pending in the 2nd Circuit case.

For now, Illinois continues to fight the 7th Circuit ruling.

On January 8, Illinois Attorney General Lisa Madigan filed a petition for rehearing en banc. In a press release that same day, Madigan said: “In ruling that Illinois must allow individuals to carry ready-to-use firearms in public, the 7th Circuit Court’s decision goes beyond what the U.S. Supreme Court has held and conflicts with decisions by two other federal appellate courts.”

If the full 7th Circuit decides to rehear the case, any Supreme Court review would be delayed. However, a quick denial by the 7th Circuit, followed by a petition for certiorari is just as likely.

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: 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: 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.

Appellate History and Baseball

Lately, with PBS showing Ken Burns' The Tenth Inning (2010), I have been thinking about his earlier documentary series, Baseball (1994), and one story in particular. It involves the Supreme Court, a former justice as advocate, two federal circuits, baseball, and ultimately, ARod's salary.

In 1970, St. Louis Cardinals center fielder Curt Flood challenged Major League Baseball's reserve clause, which had "kept players tied to their teams year after year unless traded or sold." The suit alleged antitrust and other violations.

Flood lost at all levels: the federal district court, Second Circuit, and Supreme Court, although represented by Arthur Goldberg, a former Supreme Court justice (resigned in 1965). Oral argument audio is linked here. Jackie Robinson, then retired, and others, testified for Flood below in the district court. No active players were willing to take the risk.

Although Flood did not prevail, and never played baseball again, he was a trailblazer. Only a few years later, "other baseball players successfully [challenged] and broke from the reserve system." The landmark ruling, known as the Seitz decision, came from a three-person panel: arbitrator Peter Seitz, plus player and owner representatives. Seitz and the player rep sided with the players (and the owners promptly fired Seitz).

After the federal district court and Eighth Circuit upheld the Seitz decision, and a new collective bargaining agreement was reached, baseball entered a new era of player empowerment. Some say the pendulum has swung too far, resulting in sky-high player salaries.

See Ken Burns' Baseball, Ninth Inning (includes commentary by Curt Flood, who died in 1997).

Federal Circuit Tokyo Conference and Other Court Announcements

Recent announcements from the federal appellate court websites:

The Federal Circuit announced that its judges will travel to Japan for a joint conference with the judges of the Tokyo Intellectual Property High Court (May 12-13, 2011).  Also, the court announced a portrait presentation for Chief Judge Rader (Nov. 19, 2010), an award presentation to Judge Lourie by the Philadelphia Intellectual Property Law Association (Nov. 18, 2010), and a speech by Judge Plager at George Washington University Law School (Oct. 20, 2010).

The Second Circuit posted notice of a report by the Advisory Group to the New York State-Federal Judicial Council about electronic information: Harmonizing the Pre-Litigation Obligation to Preserve Electronically Stored Information in the New York State and Federal Courts.

The Tenth Circuit invited comments (due Nov. 17, 2010) on the reappointment of Terrence L. Michael, U.S. Bankruptcy Judge (N.D. Okla.).

Second Circuit: "Pay to Delay" Deal Stands

The Second Circuit has denied en banc review of a so-called "pay to delay" deal.  The unusual route and importance of this case, involving Cipro, the most prescribed antibiotic in the world, is at this link (prior Appellate Daily coverage).

Today's en banc denial is here and related Reuters coverage is here.

Video: Reactions to the Second Circuit's FCC Decision

This C-SPAN video features discussion of and reactions to the Second Circuit's FCC/indecency ruling this week.

It's So Unusual: A Case to Watch

En banc review "is not favored," under FRAP 35(a), so why did the Second Circuit recently invite the losing side in a case to seek just that?  This unusual step, and the unusual significance of the case, make it one to watch.

Whether so-called "pay-to-delay" deals between drug makers and generic manufacturers pass antitrust muster is a live question.  According to the FTC, such deals, which keep generics off the market in exchange for payment or other value, "cost American consumers $3.5 billion a year in higher prescription drug prices."  To drug companies though, they "are a useful way to resolve costly litigation which would otherwise delay drug launches even longer."

In April, the Second Circuit addressed this important question—with even higher stakes than usual since the drug at issue was Cipro, "the most prescribed antibiotic in the world" (see link at 3).  The panel in that case upheld a "pay-to-delay" deal, citing circuit precedent, and then took the additional step of encouraging the losing side to request en banc rehearing, normally a burden courts are only too happy to avoid.  The court gave various reasons for its surprising suggestion, including the United States' and its own criticism of the prior precedent.

An en banc petition has been filed, as have various amicus briefs in support, including by the Department of Justice and thirty-four state attorneys general.  The other side has not responded yet.  Under FRAP 35(e), the court must invite a response and has not done so to date.

Along with a possible court invitation, and further filings, also to watch: The House recently passed legislation making "pay-to-delay" deals presumptively anticompetitive, which the Senate must now approve.

Second Circuit: Terrorism Enhancement Misconstrued

Khalid Awan was convicted of three counts related to his funneling money from donors in the United States to a terrorist organization in India.  The organization, whose goal is to establish a Sikh state in India's Punjab region, has engaged in violent acts in India to further its objective, including bombings.  Although a forty-five year maximum sentence, applying terrorism enhancements to all three counts, had been recommended, the district court sentenced Awan to fourteen years instead, finding the enhancements inapplicable.  Earlier this week, the Second Circuit vacated and remanded that sentence in a unanimous decision.

Second Circuit: Partial Win for Argentina in Defaulted Bonds Case

Both Argentina and eight classes of bondholders can claim partial victory in a Second Circuit decision today.  Argentina had challenged the district court's class certifications and damages computations.  As the appellate court put it, "We agree with the second contention but not the first."

Argentina defaulted on "roughly $80 to $100 billion of sovereign debt," following an economic crisis there in the 1990s.  Bondholders sued in federal district court in New York, obtaining class certifications and damages.

Quote: Avoid a Maginot Line Mentality

[P]rocedural rules are like hills on a battlefield.  Those fortunate enough to command the heights should not hesitate to make use of, and improve, their strategic position; the appellee, particularly, will benefit from showing that his opponent['s] arguments turn on facts found against him below. . . .

This said, it is equally important that you avoid placing undue emphasis on the manipulation of procedural rules and ignoring your opponent's attacks on the merits. . . . much as France's vigilance once was lulled by undue reliance on the supposedly impregnable Maginot Line.  The mere invocation of verbal formulae will not suffice to rid you of an annoying appellant: you must show that the procedural rules—and the substantive rule of law . . . dictate a favorable outcome.

Irving R. Kaufman, Appellate Advocacy in the Federal Courts, 79 F.R.D. 165, 168 (1978) (at the time, Chief Judge of the U.S. Court of Appeals for the Second Circuit, explaining his maxim, "Avoid a Maginot Line mentality").