New Appellate Chair at Jones Day, First Woman

Credit: JonesDay.com

Beth Heifetz is the new chair of the Supreme Court and appellate group at Jones Day, known formally as “Issues & Appeals.” She succeeded Glen Nager as of 2014.

Heifetz is the first woman to lead Issues & Appeals, a group of more than seventy-five attorneys in twelve offices throughout the country.

Her career path to chairing a flagship group at a major law firm has been both traditional and non-traditional.

Heifetz is a longtime member of the Issues & Appeals group and a former Supreme Court clerk, working for Justice Harry Blackmun during the 1985 term.

“I learned law, and I learned baseball,” Heifetz said, in an interview Monday.

She and her co-clerks had breakfast with the justice every day during the week, and he would share details about players and statistics.

Blackmun and Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit, for whom she also clerked, served as mentors and role models as her career progressed.

The part that is unexpected (and encouraging) in Heifetz’s career trajectory is that she stepped away from practice for five years, while raising young children. She also later worked part-time.

Heifetz attributes her success in returning to practice and now leading a nationwide appellate group to support from both her family and Jones Day. “Everyone was committed to making it work,” she observed.

Recently, Heifetz made news as the partner in charge of judicial clerk recruiting. In the last two hiring cycles, under her leadership, twelve Supreme Court clerks joined the firm, a jaw-dropping total.

Heifetz is excited about the new hires, “great young attorneys,” as she put it, and the future of the Issues & Appeals group.

“We’ve got a good formula,” Heifetz explained.

Jones Day is always a presence at the Supreme Court. This term alone, the firm has four arguments by four different attorneys. The variety of advocates is a Jones Day trademark, term after term.

Heifetz is currently working on the high-profile Detroit bankruptcy at the Sixth Circuit and in related proceedings, with other Issues & Appeals attorneys. She and Detroit’s Emergency Manager Kevyn Orr, formerly of Jones Day, worked together at the firm on bankruptcy matters. Now, both find themselves with roles in the supersized Detroit bankruptcy.

Heifetz also intends to continue her community involvement. In 2013, President Obama appointed her to the governing body of the U.S. Holocaust Memorial Museum. She works with the museum on its collections: obtaining and preserving evidence of the Holocaust and ensuring that it is accessible to researchers.

Nager, who led Issues & Appeals for fifteen years, maintains an active appellate practice at Jones Day. Just last week, the Supreme Court granted a petition for certiorari that Nager filed in North Carolina Board of Dental Examiners v. FTC. He also recently completed two years as president of the U.S. Golf Association.

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.

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

Sixth Circuit Posts Argument Audio Online

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

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

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

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

Argument Audio: The Four Holdout Circuits

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

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

That leaves only four holdout circuits.

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

A few notes on the future:

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

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

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

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

Stay tuned.
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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: Will the Court Bury Casket Cases?

This article first appeared in the April 23, 2013, issue of the National Law Journal’s Supreme Court Brief.

The Benedictine monks of St. Joseph Abbey in southern Louisiana make and sell wooden caskets to support their monastery. State regulators are not happy about it, though, because they say the monks need a license.

The U.S. Court of Appeals for the Fifth Circuit recently ruled for the monks, adding to a circuit split on licensing for casket sales. The U.S. Supreme Court could be asked to weigh in soon.

For more than a century, St. Joseph has been making caskets to bury its monks. In response to requests and a need for more income, the monks began offering wooden caskets for sale to the public in 2007, at below the national average cost. They come in two simple designs; one is no more than a nice wooden box with handles.

“My husband really wanted to have a simple burial. He lived life simply, and he wanted to have just a simple wooden coffin. And so, the monks were able to provide that service for us,” explains a customer in an Institute for Justice (IJ) video. IJ, a libertarian public interest law firm based in Arlington, Virginia, represents the monks.

The Louisiana State Board of Embalmers and Funeral Directors ordered St. Joseph not to sell the caskets. Under Louisiana law, only a licensed funeral home with a licensed funeral director can make such sales. Violators can be fined and even jailed.

To be licensed, funeral homes must have facilities for embalming and preparing bodies, while directors must be apprentices for a year, among other requirements.

The monks admit they are not licensed, but argue that they do not embalm or provide other funeral-related services. They just want to sell caskets.

The regulating Board has nine members, eight of whom are either funeral directors or embalmers. “The State is going after the monks because licensed funeral directors want the casket market to themselves,” Jeff Rowes, an attorney for the monks, contends in an IJ video.

St. Joseph sued the Board in federal court, alleging that the requirements for casket sales are unconstitutional.

On March 20, the monks won in the Fifth Circuit. St. Joseph Abbey v. Castille said that states can regulate business. The court “insist[s] only that Louisiana’s regulation not be irrational—the outer-most limits of due process and equal protection.” The Board “offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none.”

Granting funeral homes “an exclusive right of sale adds nothing to protect consumers and puts them at a greater risk of abuse including exploitative prices,” the Fifth Circuit held. The court also noted that Louisiana does not regulate the construction or design of caskets. In fact, a person can be buried with no casket.

IJ also represented casket sellers in challenges to similar laws in Tennessee and Oklahoma, winning in the Sixth Circuit in 2002 and losing in the Tenth Circuit in 2004. The sellers in those cases were not monks, but business people who, like the monks, wanted to sell caskets, but were not licensed.

In Powers v. Harris, the Tenth Circuit upheld Oklahoma’s casket-sale law, mainly out of deference to the legislature. The court was uncomfortable “substituting [its] view of the public good or the general welfare for that chosen by the states.” A bill to change the law had been introduced three times in the Oklahoma House, but not passed.

The Tenth Circuit found that sometimes states have legitimate reasons for preferring certain industries, for instance to attract business to the state. It is best to leave legislating to the legislators, the court concluded.

In March 2005, the Supreme Court declined to review the Tenth Circuit decision. Now, eight years later, with four new justices, it may have another chance with the monks’ Fifth Circuit win and a refreshed circuit split.

IJ attorneys assert in a recent op-ed that the issue goes beyond caskets to the broader question of how far states can go to favor certain businesses.

A petition for rehearing en banc in the Fifth Circuit was recently denied.

Circuit Split Watch: Press Access Not a Slam Dunk

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

Federal appellate courts are split over press access to polling places. The Pittsburgh Post-Gazette, the largest newspaper in Western Pennsylvania, recently lost a challenge to access restrictions in the U.S. Court of Appeals for the 3rd Circuit and plans an appeal to the Supreme Court.

Under Pennsylvania law, “All persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers ... must remain at least ten (10) feet distant from the polling place during the progress of voting.”

The Post-Gazette argues that this restriction, when applied to the media, violates the First Amendment’s free-press guarantee. The topic of press access was especially sensitive this year, with the controversy surrounding Pennsylvania’s new voter ID law and how it would be applied.

On October 9, Judge Nora Barry Fischer of the U.S. District Court for the Western District of Pennsylvania dismissed the Post-Gazette’s lawsuit in PG Publishing Co. v. Aichele.

Reporters “have no constitutional right to enter a polling place to gather news,” Judge Fischer found. The distance protects voters from being distracted or harassed.

Ten feet is “the vertical distance between a basketball court and a basketball hoop,” she wrote. “Anyone who has seen a player slam dunk knows that ten feet is not an insurmountable distance.”

Judge Fischer acknowledged a contrary 6th Circuit decision from 2004 and rejected its reasoning.

Just days before the 2012 election, on November 1, the 3rd Circuit affirmed Judge Fischer’s opinion in a short, unanimous judgment, noting that it would explain its reasoning in a later opinion.

In Beacon Journal Publishing Co. v. Blackwell, the 6th Circuit case, the Akron Beacon Journal newspaper sued the Ohio secretary of state over a directive barring reporters from polling places during voting. Ohio law states that only voters, election officials, police officers and the like are allowed. The paper asserted that the law had not previously been read to bar reporters.

Judge Eric Clay’s opinion for the 2-1 majority stressed that “[d]emocracies die behind closed doors,” quoting an earlier case.

Under the First Amendment, Judge Clay ordered officials to grant “reasonable access to any polling place for the purpose of news-gathering and reporting so long as [reporters] do not interfere with poll workers and voters as voters exercise their right to vote.”

Frederick Frank, an attorney for the Post-Gazette, recently pointed to the circuit split and indicated that the paper will appeal its 3rd Circuit loss.

The case “raises a significant constitutional issue, which the United States Supreme Court should address, and has not directly addressed, which is the right of reporters to report on the election process,” Frank said, in a Post-Gazette article.

Two items to watch as the appeal moves forward:

First, the Supreme Court would almost certainly prefer to consider the case with the benefit of the lower appellate court’s reasoning. Depending on when it comes out and what it says, the 3rd Circuit’s explanatory opinion could change the timing and analysis of the petition for certiorari. The time to file runs from the November 1 judgment, but the Post-Gazette could seek extensions, if needed.

Second, the Supreme Court may want to let the press-access issue develop further in the lower courts before granting certiorari, particularly because the pressure of the election season has passed for now.

Circuit Split Watch: Graphic Tobacco Warnings

This article first appeared in the April 2, 2012, issue of the National Law Journal’s Supreme Court Insider.

The Family Smoking Prevention and Tobacco Control Act requires that color images, along with written warnings, cover the top half of all cigarette packs, front and back, and 20 percent of advertising. Among the images are diseased lungs, a cadaver with a stapled chest, and a smoker breathing through a hole in his throat.

Tobacco companies have challenged these graphic warnings in federal court, yielding, in recent weeks, split results that could lead to U.S. Supreme Court review.

Although the images are grim, the reality is grim, too, supporters argue.

The Act reports that use of tobacco “is the foremost preventable cause of premature death in America. It causes over 400,000 deaths in the United States each year, and approximately 8,600,000 Americans have chronic illnesses related to smoking.”

In a video posted on YouTube, “New Cigarette Health Warnings: Protecting Public Health,” Health and Human Services Secretary Kathleen Sebelius declares that the graphic images “tell the truth” about the negative health effects of smoking more effectively than words alone. Put another way, a picture is worth a thousand words.

But, do these graphic pictures go too far? Judge Richard Leon of the U.S. District Court for the District of Columbia thinks so. Granting summary judgment to the tobacco companies on February 29 in R.J. Reynolds Tobacco Co. v. FDA, Judge Leon said that the images violate the companies’ First Amendment rights by forcing them to be “the Government’s mouthpiece.” To salvage the warnings, which it views as constitutional, the FDA appealed. Oral argument is set for April 10 at the U.S. Court of Appeals for the D.C. Circuit.

On March 19, the U.S. Court of Appeals for the Sixth Circuit came to a different conclusion, by a 2-1 vote in Discount Tobacco City & Lottery, Inc. v. United States. Judge Jane Stranch, writing for herself and Judge Michael Barrett of the Southern District of Ohio, sitting by designation, upheld the graphic warnings. Judge Eric Clay dissented.

The format of the Sixth Circuit decision is unusual in that there are two majority opinions, each covering various issues. The Stranch opinion contains the majority ruling on the graphic warnings. The majority looked to the words of the Act requiring color images, analyzing the case as a facial challenge, while the dissent also took the actual images, which were chosen later, into account.

Judge Stranch noted that the current textual warnings are not effectively reaching many people, such as the key youth population.

“A warning that is not noticed, read, or understood by consumers does not serve its function. The new warnings rationally address these problems by being larger and including graphics,” Stranch explained.

Judge Clay disagreed, referencing the D.C. district court decision. Clay found that the government had not demonstrated that the graphic warnings are “reasonably tailored.” Instead, they play on fear and “attempt to flagrantly manipulate the emotions of consumers.”

Responding to an email inquiry about whether the tobacco companies intend to seek rehearing en banc from the Sixth Circuit or appeal directly to the U.S. Supreme Court, one of the companies’ attorneys, Floyd Abrams of Cahill Gordon & Reindel in New York City, stated that all options are under consideration.

Even if the case is reheard en banc at the circuit level, the Supreme Court is almost certain to have the final say. Because a federal statute with nationwide economic and health implications is at stake, it is likely that the issue would garner the Court’s attention.

The graphic warnings were to have taken effect in September 2012, but that date is now uncertain due to the ongoing litigation, according to an FDA statement on its website.

Circuit Split Watch: Counseling Standards v. Religious Values

This article first appeared in the February 27, 2012, issue of the National Law Journal’s Supreme Court Insider.

The U.S. Supreme Court may soon have the chance to review conflicting decisions about students who have been expelled from state university counseling programs for requesting not to counsel gay clients or wanting to “convert” them.

In both cases, the students allege violations of their First Amendment free speech and expression rights, while the university defendants allege student violations of the American Counseling Association standards.

Counselors and clients can have very different outlooks. As Will Meyerhofer, a therapist and lawyer who regularly contributes to Above the Law, writes, “I’ve worked with clients who collect guns, and eat meat and live for professional sports,” while he, the counselor, is “a gun control-espousing, vegetarian esthete.”

But, what about differing religious values?

Although she had not yet entered the one-on-one phase of her counseling program, Jennifer Keeton, a Christian student at Augusta State University in Georgia, had actively espoused “conversion” to heterosexuality for gay clients.

“Every profession has its own ethical codes and dictates,” explained Judge Rosemary Barkett for a three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Keeton v. Anderson-Wiley, which rejected the student’s appeal. “Lawyers must present legal arguments on behalf of their clients, notwithstanding their personal views. Judges must apply the law, even when they disagree with it. So too counselors must refrain from imposing their moral and religious values on their clients.”

Judge William Pryor, a conservative appointee of President George W. Bush, was part of the unanimous panel.

In the 6th Circuit, on the other hand, the student won. Judge Jeffrey Sutton, another conservative Bush appointee, wrote for the unanimous three-judge panel in Ward v. Polite. Sutton recently made news for crossing party lines to uphold President Obama’s health care law.

Julea Ward, a counseling student at Eastern Michigan University who is a Christian, asked that a gay client seeking relationship counseling be referred to someone else. Ward’s supervisor allowed the referral, but disciplinary proceedings followed.

“Tolerance is a two-way street,” Judge Sutton stated, finding that the case should go to a jury. The relevant professional standards do “not require an atheist counselor to tell a person of faith that there is a God if the client is wrestling with faith-based issues.” Sutton indicated that Ward’s referral was in the client’s best interest because he “would receive treatment from a counselor better suited to discuss his relationship issues.”

Sutton distinguished the 11th Circuit decision in Keeton, noting that the student there intended “to engage in conversion therapy,” which “all agree” is a violation of professional standards. Rather than “insisting on changing her clients, Ward asked only that the university not change her—that it permit her to refer some clients in some settings.”

Sutton’s blessing of Keeton, along with Pryor’s joining in it, may forecast how some conservatives on the Supreme Court could view the case; namely, as an easier call than Ward. Others would argue, though, that the distinction Sutton draws is not meaningful, because requesting not to counsel a gay client and planning to proselytize to that client are fruit from the same tree, and both need to be reviewed.

The Supreme Court could soon have that opportunity. The 11th Circuit recently denied rehearing en banc in Keeton, so a petition for certiorari could be filed shortly. The 6th Circuit is currently considering whether to grant a petition for rehearing en banc in Ward.

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.

Update to Circuit Split Watch (Cert Grant)

Today, the U.S. Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (10-553), a Sixth Circuit case dealing with the ministerial exception and employment-related lawsuits against religious organizations.

Appellate Daily's earlier coverage of the circuit split preceding this cert grant is here. The articles mentioned and linked, including one by Cardozo Law professor Marci Hamilton, discuss Skrzypczak v. Roman Catholic Diocese of Tulsa, a Tenth Circuit case (cert petition still pending; 10-769), Hosanna-Tabor, and other cases.

Sixth Circuit: And the Diamond Goes to . . . The Gov't

Who gets the "43.51 Carat Modified Rectangular Brilliant Yellow Diamond Internally Flawless with Fancy Intense Grate known as the 'Golden Eye'"? Today, the Sixth Circuit decided, beginning with this summary:

Paul Monea and a coconspirator were convicted of participating in a money-laundering scheme to hide the proceeds of drug trafficking. The district court subsequently granted a preliminary order of forfeiture regarding several items of personal property used in the scheme, including a large diamond that purportedly belonged to Monea. Several parties filed petitions to amend the order of forfeiture on the basis of their alleged ownership interest in the diamond, including the Monea Family Trust I–1999 (the Trust), of which Monea and two of his children were beneficiaries. Holding that the government’s interest in the diamond was superior to that of all of the claimants, the district court denied the various petitions.

The Trust now appeals the district court’s order. For the following reasons, we AFFIRM the judgment of the district court.

Sixth Circuit: Jane Branstetter Stranch Vote Today

Today's Senate Executive Calendar states that Jane Branstetter Stranch's nomination to the U.S. Court of Appeals for the Sixth Circuit will be voted on late this afternoon.

Her bio is linked here (press release on nomination, one year ago last month).