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Archive for January, 2012

Today, if a first-rate attorney can add 10 percent to the probability of getting a favorable decision on a regulatory ruling worth hundreds of millions of dollars, he is worth his many-hundreds-of-dollars-per-hour rate. If he can work out the multidimensional issues that enable the merger of two large corporations, he may be worth a commission of millions of dollars.

Charles Murray, Coming Apart: The State of White America, 1960-2010.

Does legal education help here? How?

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Today is the Feast of St. John Bosco (Don Bosco). He was a remarkable man. In honor of his feast, here is an instrumental rendition of Friend of the Young and the Poor, a song by Fr. Stephen Schenck, SDB.

You were the light in the dark for the young who could not see

And you were a spark for the young to become all they could be

Help us all come to be all that God calls us to be

We will send the message

We will be the witnesses that you, Don Bosco, are the friend of the young and the poor

Lead us safely through the storm to the heavenly shore

 

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A divided panel of the Fourth Circuit held today in Prudencio v. Holder that the framework used by federal immigration judges to decide whether an individual has previously been convicted of a crime of moral turpitude is unauthorized because in conflict with the relevant provisions of the Immigration and Nationality Act. Judge Keenan wrote the opinion, in which Chief Judge Traxler joined. Judge Shedd penned a vigorous dissent.

The decision defies easy summary, but the dispute is an important one. Here is how Judge Shedd’s dissent begins:

The categorical approach adopted by the majority is a doctrine created by the judicial branch to address issues of concern to the judicial branch—protection of Sixth Amendment rights and efficient use of judicial resources. Although an agency may choose to adopt some version of this approach, there is no  requirement to expand this difficult, almost unworkable, limiting analysis to an agency, especially in the immigration context, and I would not do so.

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The Fourth Circuit today unanimously affirmed a grant of summary judgment in favor of the United States on the claim of activist photojournalist Isis for money damages under the Privacy Protection Act. Chief Judge Traxler wrote the published opinion in Sennett v. United States, which was joined in by Judge Motz and Judge Keenan.

The claim arises out of a lawless protest by anti-IMF activists at the Four Seasons hotel in Washington D.C. in 2008. Isis asserts that she went to the hotel around 2:30 a.m. one morning after receiving an anonymous tip about an impending demonstration. She proceeded to video a protest in the hotel lobby that involved firecrackers, smoke-generating pyrotechnic devices, and paint-filled balloons, causing more than $200,000 in property damage. The police tracked her down, searched her residence, and hauled away a lot of her gear. She never was charged with a crime. She sued under the Privacy Protection Act and lost on summary judgment. The Fourth Circuit affirmed. The decision involves an extended analysis of the “suspect exception” in the PPA.

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Having attended yesterday’s oral argument in the Fourth Circuit’s en banc consideration of Al-Quraishi v. L-3 Servs. Inc. and Al Shimari v. CACI Int’l Inc., I am now wading a little more deeply into the issues.

The D.C. Circuit’s decision in Saleh v. Titan Corp. involved similar claims to those asserted in the cases being considered by the Fourth Circuit. In reviewing that decision, I came across the statement in Judge Garland’s dissent that supplies the title for this post: “To deny preemption is not to grant plaintiffs free reign.”

Judge Garland must have meant “rein” instead of “reign.” But the mix-up is instructive. By asserting state tort law against contractors acting abroad under the control and direction of the U.S. military, authorizing discovery would be extending the “reign” of some other sovereign against the federal government’s chosen helpers in a war zone.

Judge Garland is right that this “reign” would not be “free.” The district court would hold the reins and govern the case based on the court’s perception of the relevant interests. But the appropriate question seems to be not simply how tight a rein the court may hold, but whether the horse should leave the starting gate at all.

(Note: Judge Garland may not be wrong, but rather avant-garde (instead of old guard) in his use of language. According to this Google Ngram, his chosen usage appears to be gaining in popularity while the conventional usage is running flat after something of a decline.)

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The Fourth Circuit, sitting en banc, heard oral arguments this morning in two cases asserting civil damages claims against military contractors for their activities at Abu Ghraib and other locations in the Iraq war zone. (A short write-up of the now-vacated panel decisions is available here, and more extensive  pre-argument discussions of various issues arising out of the panel opinions can be found at Lawfare here, here, here, and here.)

I attended the argument and came away with some (admittedly impressionistic) impressions that might be of interest to those following the cases who could not make it to Richmond for the argument:

- Almost all of the argument and questioning focused on whether the appellate court had jurisdiction. There was some discussion of the correctness (or not) of the D.C. Circuit’s decision in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), dismissing similar claims under a form of “battlefield preemption.” But most of that discussion was about the proper characterization of the doctrine: Is preemption the right way to think about the doctrine, or is it closer to an immunity? And there was much discussion of whether the contractors had a substantial claim to derivative immunity.

- Given how the argument went, it would be surprising if the court were to conclude both (1) that it has jurisdiction, and (2) that the district court properly ruled in allowing the claims against the contractors to go forward. If the Fourth Circuit concludes that it has appellate jurisdiction, the merits of the ruling are likely to be in the contractors’ favor.

- BUT it is difficult to make any confident predictions given that several of the judges either did not ask any questions or asked only one or two, leaving little to observe about their case-specific inclinations.

- Judge Niemeyer and Judge Shedd, responsible for the panel opinions, mounted vigorous questioning designed to show that a remand for discovery was not only unnecessary but also would defeat the very interests to be protected by the immunity doctrine whose applicability they needed to decide, as well as undermining some of the federal interests protected by the preemption doctrine at issue. Judge Wilkinson’s questioning revealed him to be aligned with Judge Niemeyer and Judge King on these issues.

- Judge King, author of the panel dissents, led the questioning for the jurisdictional skeptics. At various times, questions by Judge Wynn, and to a lesser extent by Judge Gregory, Judge Motz, and Judge Davis, revealed likely alignment with Judge King on this point.

- Judge Duncan asked a couple of questions that appeared to be aimed at some sort of middle ground that would allow the Fourth Circuit to dismiss for lack of appellate jurisdiction but still provide guidance to the district court that, on remand, it needs to give more weight to the federal interests threatened by further litigation of these claims. But Judge Wilkinson asked a question suggesting that, if the Fourth Circuit dismisses for lack of jurisdiction, the Fourth Circuit risks taking itself out of involvement until after trial.

- Some of the judges appeared receptive to a remand for lack of jurisdiction under the collateral order doctrine (the appellant’s theory of jurisdiction) with strong suggestions to the district court that it certify an interlocutory appeal under 1292(b). Judge Motz suggested that upholding jurisdiction under the collateral order doctrine would create a circuit split. Earlier in the argument, Judge Motz observed that the Supreme Court’s refusal to allow expansion of the collateral order doctrine was analogous to its treatment of Bivens claims.

- The federal government had a rough day. At the court’s invitation, the federal government had filed an amicus brief. (See here for Steve Vladeck’s summary of the government’s brief.) Counsel for the government, Thomas Byron, had an excellent presence and remained poised and articulate throughout. But the court was clearly not enamored with the federal government’s seeming attempt to have things both ways. When counsel for the government began with a customary expression of pleasure at the opportunity to appear at the invitation of the court, Judge Motz noted that she was “surprised” to hear that given that the brief filed by the government was “equivocal” about the issues. Later on, Judge Wilkinson said that he agreed with Judge Motz, that he thought the government was offering the “most obscure, equivocal kind of presentation . . . .” Judge Motz then interjected that she didn’t say quite that, and Judge Shedd (I think) stated something along the lines of “it sure sounded like that over here.” (Note: It’s hard to convey a flavor of how this all went over in the courtroom, so it’s probably worthwhile for those interested to listen to the recording of oral argument when it is available next week.) Although Judge Motz dissociated herself from some of the more strongly negative characterizations of the government’s position offered by Judge Wilkinson, it seemed that even at the end of argument, Judge Motz was not completely satisfied with the government’s argument. This was apparent from a question she asked about the government’s understanding of Dow v. Johnson, 100 U.S. 158 (1879), which involves the non-susceptibility of military actors to answer in civil tribunals for actions in warfare. She asked government counsel, somewhat skeptically, to explain the following statement from the government’s brief: “Dow and the policies it reflects may well inform the ultimate disposition of these claims. But we are not prepared at this point to conclude that the contractor defendants have demonstrated a right to immediate review of their contentions based on Dow alone.”

- Notwithstanding the difficulties faced by the federal government, it is conceivable that something close to the federal government’s position with respect to jurisdiction could prevail, leading to another interlocutory appeal not too far down the road. As previously noted, however, it is difficult to make any confident predictions given the sheer number of judges (14) and the limited amount of information that can be gleaned from the contents of questions.

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The Fourth Circuit yesterday released an unpublished per curiam opinion in United States v. Stallworth affirming the life sentences of two individuals convicted of participating in a drug-trafficking conspiracy after having two prior felony drug convictions. The panel consisted of Judge Niemeyer, Judge Gregory, and Judge Agee.

According to the opinion, the conspiracy “would purchase a kilogram of cocaine for around $25,000 and then would cook it into crack cocaine, which members were able to sell for between $36,000 and $42,000.” If these numbers are accurate, they are surprising. For an activity that carries such serious consequences, one would expect the profit margin to be higher.

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