Facebook Case Tests Scope of ‘True Threat’

This article first appeared in the April 7, 2014, issue of the National Law Journal’s Supreme Court Brief.

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

The U.S. Court of Appeals for the Third Circuit rejected Elonis’ appeal.

In February, the University of Virginia School of Law’s Supreme Court Litigation Clinic filed a petition for certiorari on behalf of Elonis. John Elwood, a Vinson & Elkins partner and clinic instructor, is the counsel of record. Elwood is also a former assistant to the solicitor general and clerk to Justice Anthony Kennedy.

The brief in opposition is due April 21, so the justices could act soon on the petition.

Virginia v. Black, a 2003 Supreme Court opinion about cross burning, held that when a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” that is a true threat (emphasis added). Such threats are not protected speech under the First Amendment.

The petition outlines a split among federal courts of appeals and state high courts over Black’s true threat definition. One interpretation focuses on the speaker, while the other focuses on the speaker and the listener.

Does the phrase “means to communicate” require that the speaker subjectively intend a threat, or is it enough that the message sent comes across objectively as a threat?

The petition also notes that at least eight state high courts are in conflict with the federal courts of appeals covering their regions. For instance, the First Circuit utilizes an objective test, while Massachusetts and Rhode Island follow a subjective one. State-federal conflicts are present in the Second and Ninth Circuits, too, the petition reports.

The Third Circuit applied the objective test, the majority view, to uphold Elonis’ Facebook convictions.

In his petition, Elonis argues for the subjective test, submitting that he was just using Facebook therapeutically, as his marriage had broken up and he had lost his job. The Facebook posts, the petition contends, “certainly involve no more violent imagery than songs by any one of scores of popular rappers, including the Eminem songs about the rapper’s ex-wife that inspired several of petitioner’s posts.”

In his Facebook posts, Elonis brought up the First Amendment, linking to a Wikipedia entry on freedom of speech. In one post, he wrote, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

The petition includes a rudimentary description of Facebook, a subtle recognition of the justices’ admitted lack of online savvy: Users have “a home page on which the user can post comments, photos, and links to other websites.” They “may become ‘friends’ with other users.”

Justice Elena Kagan has said that the justices do not even use email.

Circuit Split Watch: Are 'Boobies' Bracelets the New Black Armbands?

This article first appeared in the January 22, 2014, issue of the National Law Journal’s Supreme Court Brief.

Federal courts are split over whether schools can ban bracelets that say “i ♥ boobies! (KEEP A BREAST).” The bracelets are part of a breast cancer awareness movement targeted at youth, but some middle and high school administrators are crying foul. A petition for certiorari on this free speech issue is pending at the U.S. Supreme Court.

In its 1969 landmark First Amendment decision, Tinker v. Des Moines Independent Community School District, the Supreme Court held that school officials could not bar young people from wearing black armbands to school as a peaceful war protest. In 1986, though, in Bethel School District No. 403 v. Fraser, the high court said that officials could punish student speech that used vivid sexual imagery in a school assembly.

The “boobies” bracelet is a hybrid between the Tinker armband and the Fraser speech: a clothing accessory with a message, which some schools view as double entendre.

So far, courts have not found that the bracelets substantially disrupt the school environment, yet they have reached different results on the bans.

Schools won in Indiana and Wisconsin federal district courts; those decisions were not appealed. Students won at the U.S. Court of Appeals for the Third Circuit, sitting en banc in a Pennsylvania case.

The nine-member Third Circuit majority determined that the “bracelets are not plainly lewd,” looking to Fraser, and comment on “an undeniably important social issue,” applying Justice Samuel Alito Jr.’s concurrence in another student speech case, the Supreme Court’s 2007 Morse v. Frederick.

Five judges on the Third Circuit dissented.

What about “I ♥ vaginas” or “I ♥ testicles,” they asked, if couched as cancer awareness slogans? “[S]chool districts would be powerless to address” them.

The dissent also criticized the majority for treating Alito’s Morse concurrence as controlling and for deepening a circuit split on the weight of Alito’s opinion (separate from the split about the bracelets).

Morse is better known as the “BONG HiTS 4 JESUS” case, quoting a banner that students unfurled at a school event. A five-justice majority said that the banner was not protected speech in a school setting, since it promoted illegal drug use.

The Third Circuit dissent reasoned that since Alito joined that majority opinion, his concurrence is dicta. For plurality rulings, the narrowest rationale controls, but Morse was not a plurality. Justice Anthony Kennedy also signed on to Alito’s concurrence.

The Third Circuit majority responded that Alito and Kennedy cast the deciding votes, but on the condition, spelled out in the concurrence, that Morse not be read to restrict speech that “comment[s] on any political or social issue.” The social commentary language is binding and weighs in favor of allowing breast cancer awareness bracelets, the Third Circuit majority concluded.

A petition for certiorari is pending at the Supreme Court on the Third Circuit decision. Absent extensions, the response is due February 5.

The justices may opt to wait until more federal appellate courts have vetted the bracelet bans or otherwise choose not to disturb the rulings below.

In 2012, the justices declined to review two en banc decisions—also from the Third Circuit—about another free speech battleground for students and schools: online posts. The circuit had sided with students who created fake and vulgar MySpace profiles about their principals, while off school property.

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: 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: 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: 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.

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

Speaking at Duke Law School today, Judge J. Harvie Wilkinson called his new book a "cri de coeur" that criticizes judicial activism on the right and the left.

Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance attempts to promote judicial restraint, Judge Wilkinson explained.

Wilkinson has sat on the U.S. Court of Appeals for the Fourth Circuit since 1984, and before that, served as a law clerk to U.S. Supreme Court Justice Lewis Powell, editorial page editor for the Virginian-Pilot in Norfolk, and law professor.

As a law student, he put his studies on hold to run for Congress at age 25. His opponent had a billboard encouraging voters to return him, the incumbent, to Congress and return Wilkinson to law school. When he lost, Wilkinson quipped that he got a mandate from the voters: return to school.

Wilkinson's new book is dedicated to his law clerks, who, he said, are one of the best parts of his job. He values "intergenerational relationships" because each can learn from the other.

Being at Duke, Wilkinson took time to praise his three North Carolina colleagues on the Fourth Circuit: Albert Diaz, Allyson Duncan, and James Wynn.

Judge Wilkinson predicted that Diaz, who has been on the circuit just over a year, will come to be widely recognized as one of the best federal appellate judges in the country. Wilkinson also told how Diaz helped him in relation to the death of Fourth Circuit Judge Blane Michael. Michael and Wilkinson, both runners, had been friends and liked to go for runs in a particular park. When Michael died, Wilkinson was so sad that he wondered if he could ever run in that park again. But, Diaz invited Wilkinson to go running one day, which returned Wilkinson to the park. Wilkinson was sure that Diaz, a former Marine, had slowed his pace, so that Wilkinson could keep up.

The Fourth Circuit tradition of judges and attorneys shaking hands after oral argument was the topic of a humorous story shared today. Judge Wilkinson tried to convince a colleague on the Third Circuit, the late Judge Edward Becker, that his court should try handshaking, as well. Becker asked other judges in his circuit and looped back to Wilkinson with a negative response. They felt it would spread too many germs.

Circuit Split Watch: Variations on the Padilla Theme

This article first appeared in the January 10, 2012, issue of the National Law Journal’s Supreme Court Insider.

The U.S. Supreme Court will soon have the chance to revisit Padilla v. Kentucky, its 2010 decision holding—at the intersection of criminal and immigration laws—that the Sixth Amendment requires attorneys to inform their clients about the possible deportation consequences of a guilty plea.

In recent months, three federal appellate courts split 2-1 on whether Padilla applies retroactively, teeing the cases up for possible review by the Supreme Court. All three were denied rehearing en banc.

Chaidez v. United States, from the U.S. Court of Appeals for the 7th Circuit, is already the subject of a petition for certiorari.

In 2003, Roselva Chaidez, a lawful permanent resident of the United States since 1977, pled guilty to fraud related to a staged accident insurance scheme and, in 2004, was sentenced to probation. Five years later, after Chaidez tried to apply for citizenship, the federal government initiated removal proceedings against her. Because the admitted fraud caused the victims to lose more than $10,000, it qualified as an aggravated felony, and Chaidez was eligible for deportation.

Chaidez took the matter to federal district court, filing a coram nobis motion, which is a collateral attack similar to habeas, except the defendant is not in custody. Chaidez argued that her attorney did not tell her that a guilty plea could get her deported. Had she known, she would not have pled guilty. Chaidez alleged ineffective assistance of counsel and asked that her conviction be overturned.

Looking to Padilla, which the Supreme Court decided while Chaidez’s motion was pending, the district court vacated her conviction.

The 7th Circuit reversed, over Judge Ann Claire Williams’ dissent.

Judge Joel Flaum, writing for himself and Senior Judge William Bauer, explained that Padilla is not retroactive, meaning that it only applies to cases on direct review, not to a coram nobis motion or other collateral attack. The direct line of Chaidez’s criminal case had been final for years, when she pled guilty and did not appeal.

In Judge Flaum’s view, Padilla announced a groundbreaking new rule that lower courts had not anticipated. In fact, Flaum noted, federal courts before Padilla had unanimously held that plea counsel is not constitutionally required to warn clients of immigration consequences.

Judge Williams disagreed, finding that Padilla applies retroactively to collateral review. Risk of deportation is important information to know before entering a plea. Williams urged that “prevailing professional norms at the time of Chaidez’s plea required a lawyer to advise her client of the immigration consequences of a guilty plea.” Under Supreme Court precedent cited by Williams, such norms have long been relevant to whether counsel’s representation was reasonable.

The 7th Circuit panel knew that its decision would create a circuit split. Less than two months earlier, the 3rd Circuit in United States v. Orocio determined, like Judge Williams, that Padilla applied retroactively. Following 7th Circuit Rule 40(e), the panel distributed the majority and dissent to all ten active 7th Circuit judges. The majority voted not to rehear the case en banc. However, as reported in the panel opinion, four judges voted for rehearing.

The 7th Circuit also denied a later rehearing en banc petition, this time without a vote requested, presumably because the court had previously taken and announced its vote.

Joining the 7th Circuit and making the split 2-1, the 10th Circuit in United States v. Chang Hong ruled that Padilla is not retroactive. Although not precedent, a footnote in United States v. Hernandez-Monreal, a 4th Circuit unpublished opinion from 2010, stated, without analysis, that “nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review.”

A petition for certiorari has already been filed in the 7th Circuit case, and petitions from the 3rd and 10th Circuit cases could soon follow.

Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?

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

Congress passed the Fair Sentencing Act of 2010 to reduce the vast and heavily criticized disparity between crack cocaine and powder cocaine sentences.

Implementing the FSA has not been easy, though, as federal appeals courts have split over when it applies. Two of these cases could reach the Supreme Court soon as petitions for certiorari, and a third is already there.

In July, the 7th Circuit decided United States v. Holcomb, a consolidation of appeals involving four defendants. Each committed crack offenses before the FSA became law, but was sentenced after, receiving lower FSA sentences. For one defendant, the difference was 33 months (within the FSA range) versus 120 months (pre-FSA mandatory minimum).

A three-judge 7th Circuit panel, citing prior circuit precedent, found that the FSA only applies to offenses committed after it became law and that the sentencing date is irrelevant. As a result, the defendants would get the higher sentences. This had been the federal government’s position.

About a week later, though, Attorney General Eric Holder issued a “Memorandum for All Federal Prosecutors” that rejected this approach. Originally, prosecutors had been told that the FSA only applied to post-FSA offenses. However, as Holder explained, confusion in the courts and “the serious impact on the criminal justice system of continuing to impose unfair penalties” had caused him to review and change the policy. Going forward, the FSA would apply to post-FSA sentences, regardless of the offense date.

After the government notified the 7th Circuit of the policy change, the court denied rehearing en banc sua sponte. The vote was a tie, 5-5, leaving the earlier decision intact.

Chief Judge Frank Easterbrook, writing for the four other judges opposed to rehearing en banc, focused on 1 U.S.C. § 109. Under that section, repealing a statute does not “extinguish any penalty” of the old statute, except where expressly stated in the “repealing Act.” Put another way, the FSA is not retroactive unless it says so. And it doesn’t, Easterbrook concluded. He also saw no implied retroactivity.

Judge Ann Claire Williams, joined by the four other judges who voted for rehearing, called this result “wrong” and “nonsensical.” Judge Richard Posner, who joined Williams, but also wrote a separate individual dissent, went further, deeming it “gratuitously silly” and “perverse.”

The FSA, Williams noted, gives the Sentencing Commission “emergency authority” to promulgate guidelines consistent with the FSA “as soon as practicable.” Also, the FSA states that it is “restor[ing] fairness to Federal cocaine sentencing.” Williams questioned why Congress would rush to replace admittedly unfair sentences, only to continue imposing them.

As both sides pointed out, there is a 3-2 split among the federal appellate courts on when to apply the FSA. The 1st, 3rd and 11th Circuits are in sync with Williams’ opinion, while the 8th Circuit squares with the 7th Circuit holding defended by Easterbrook.

The 7th and 8th Circuit cases are likely to be appealed to the Supreme Court soon. Like the 7th Circuit, the 8th Circuit recently denied rehearing en banc. Also, an earlier 7th Circuit case on FSA retroactivity, Fisher v. United States, is already pending before the Court as a petition. It was distributed for the September 26 conference, but the Court took no action, perhaps waiting in anticipation of further petitions. (See also Dorsey v. United States, consolidated with Fisher below.)

Because of the circuit split, and the practical implications for many defendants, the Supreme Court may decide to grant certiorari. If so, the scenario will be different than most, since the winner in the 7th and 8th Circuits, the government, now disagrees with those decisions. In such cases, the Court can appoint an attorney to defend the judgments below. Often, as Legal Times has reported, former Supreme Court clerks get this nod.

The government has not appealed its losses in the 1st, 3rd and 11th Circuits, but the latter is still pending. On October 4, the 11th Circuit ordered rehearing en banc sua sponte.

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.

Third Circuit: Overruling Its Own Bankruptcy Precedent

"It is only on a rare occasion that we overrule a prior precedential opinion," a Third Circuit en banc panel wrote last week, before doing just that in a bankruptcy case.

Mrs. Mary Van Brunt was diagnosed with cancer thirty years after purchasing items, allegedly containing asbestos, from a home improvement store for a remodeling project.  She and her husband Gordon sued the store, or rather, its successor-in-interest, in state court.  Nearly ten years before the disease was diagnosed, however, the store had filed for Chapter 11 bankruptcy and a reorganization plan had been confirmed.  The question in this related federal case was whether the bankruptcy extinguished the asbestos-related claims.  (Mrs. Van Brunt died while the case was pending and Mr. Van Brunt continued as a party.)

Relying on Third Circuit precedent, more than a quarter-century old, both the bankruptcy and district courts found the claims viable.  Under that precedent, the so-called "accrual test," a claim accrues "when the underlying state law cause of action accrues."  Here, the relevant state tort law indicates that asbestos-related claims accrue when "the injury manifests itself."  Since Mrs. Van Brunt's symptoms and diagnosis came after the bankruptcy plan, her claims accrued after, and survived, the bankruptcy.  While noting that both lower courts "correctly applied" the Third Circuit's test, the analysis did not end there.