DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2010 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

June 4, 2010

6th Circuit Takes Lead As Most Reversed Appeals Court

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The San Francisco-based 9th U.S. Circuit Court of Appeals, often categorized as too liberal and out of sync with the more conservative U.S. Supreme Court, faces some unusual competition this term for its crown as the most reversed circuit.

Earlier this week, the justices reversed the Cincinnati, Ohio-based 6th Circuit for the seventh time in seven cases (including one summary reversal), meaning a 100 percent reversal rate for the term.

Of those, five, including the summary reversal, were habeas corpus cases in which the appellate court had granted relief to the defendant only to be second-guessed by the justices.

The most high-profile was this week's Miranda ruling, in which the court held on a 5-4 vote that a suspect's silence during a police interrogation did not invoke his right to silence. Berghuis v. Thompkins, 2010 DJDAR 8047.

Pro-defendant rulings in habeas corpus cases that are subsequently reversed by the high court are traditionally associated with the 9th Circuit, especially when the court's liberal figurehead, Judge Stephen Reinhardt, authors the opinion in question.

Due to its size and larger caseload, the 9th Circuit always takes up a greater proportion of the Supreme Court's docket than other circuits. It's too early to say what the 9th Circuit's reversal rate will be this term as only four of the 14 argued cases have been decided. Of those, three were reversals.

Kent S. Scheidegger, legal director of the conservative Sacramento-based Criminal Justice Legal Foundation, said it was "quite possible" that the 6th Circuit will, for this term, take the 9th Circuit's mantel as the circuit most at loggerheads with the Supreme Court - at least in terms of habeas corpus cases.

Although overall, the number of 6th Circuit cases under review was fewer than the number of 9th Circuit cases, it is more noteworthy because the circuit is smaller than the 9th, he added.

"To have that many reversals is even more significant than it would be for the 9th," Scheidegger said.

It's tough to make assessments about the 6th Circuit's reversal rate over several terms because the Supreme Court does not often review more than a handful of its cases each term. Last term, the justices reversed five out of five cases, but in the 2007-2008 term, the court only reviewed three 6th Circuit cases and reversed two.

As for why the Supreme Court suddenly became interested in 6th Circuit habeas rulings, court-watchers say part of the reason is that Michigan Solicitor General Eric Restuccia went to great lengths to flag the issue in his briefs. Of the five 6th Circuit habeas cases decided this term, three were out of Michigan.

In five briefs filed last year, Restuccia mentioned the other petitions he was filing in an attempt to highlight the failure of the 6th Circuit to follow habeas corpus rules as revised by Congress in the Antiterrorism and Effective Death Penalty Act back in 1996.

"These cases evidence a pattern by the 6th Circuit of usurping the role of the State courts by failing to properly apply the AEDPA," he wrote in a passage that appeared in all five briefs.

Joy Yearout, a spokeswoman for the Michigan Attorney General's office, said Thursday that the state is "going to keep filing petitions as long as the 6th Circuit continues its pattern of failure to accord proper deference to state court determinations."

One has already been filed and another will be filed in the coming weeks, she added.

Arthur Hellman, a professor at the University of Pittsburgh School of Law, said the increased attention the Supreme Court is paying to the 6th Circuit is similar to what 9th Circuit judges are used to.

"The justices and their clerks start to see a pattern and they then look at cases that fit the pattern," he said.

The Supreme Court is also sure to be aware of some highly contentious ideological splits among the judges in the circuit that have spilled over into opinions, Hellman added.

But the focus on the 6th Circuit this term does not suggest that the court is turning its attention away from the 9th Circuit's habeas cases, he said.

After all, the Supreme Court took up three 9th Circuit habeas cases this term, with two fitting the familiar profile.

In the first, Judge Kim McLane Wardlaw wrote the majority opinion granting habeas corpus relief to Troy Brown, a man convicted of sexually assaulting a 9-year-old girl.

The case was scheduled for argument but then removed from the calendar and summarily reversed. McDaniel v. Brown, 2010 DJDAR 441.

The second was another summary reversal, this time of a Reinhardt opinion granting habeas relief to a convicted murderer. Wong v. Belmontes, 2009 DJDAR 16107.

The third case, on the question of how to calculate good time credit for federal inmates, is less easy to categorize because the 9th Circuit ruled against the defendant.

U.S. District Judge Philip S. Gutierrez of the Central District of California, sitting by designation, wrote the opinion. The Supreme Court has yet to issue a ruling. Barber v. Thomas, 09-5201.

There are also already two 9th Circuit habeas cases on the docket for next term, indicating that it will be business as usual in coming years, Scheidegger said.

"It's dangerous to read too much into variations in one term," he added.

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2010 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

June 2, 2010

High Court Okays Torture Suit

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - In a major victory for a San Francisco-based human rights group, the U.S. Supreme Court Tuesday ruled unanimously that former officials of foreign countries are barred from claiming immunity under the Foreign Sovereign Immunities Act for alleged acts of torture.

The case marked the first trip to the court for the 12-year old Center for Justice and Accountability, based on Market Street.

CJA's clients are five Somalis who accuse a former Somali prime minister Mohamed Ali Samantar of various human rights violations. They can now pursue their claims against Samantar, who served as defense minister of Somalia during the 1980s when dictator Mohammed Siad Barre led the country. After the regime fell in 1991, Samantar ended up in Fairfax, Va.

The Supreme Court left open the possibility that Samantar could claim immunity under common law when the case returns to federal court in the Eastern District of Virginia. Under that scenario, which is based on case law and not on any specific federal statute, the State Department traditionally plays a major role in advising the court on whether a defendant should be granted immunity. The issue of whether Samantar can claim common law immunity was not before the court. Samantar v. Yousuf, 2010 DJDAR 8076.

The case began when the relatives of one of the plaintiffs, Bashe Abdi Yousuf, heard Samantar was in the United States and wondered if there was any way of holding him accountable for his alleged actions.

Of the five plaintiffs, two - Yousuf and Aziz Deria - are United States citizens. Yousuf was detained, tortured, and kept in solitary confinement for six years, while Deria fled Somalia after his father and brother disappeared.

Of the other three plaintiffs, all of whom are Somali citizens, one survived a firing squad by hiding under dead bodies, one had two family members executed and one, a woman, was repeatedly raped and held in solitary confinement for three years.

In 2004, the CJA, with the help of Cooley Godward Kronish, filed suit under the Torture Victim Protection Act, which creates a cause of action for torture committed in "any foreign nation," and the Alien Tort Statute, which gives United States courts jurisdiction to hear certain international disputes.

Samantar countered by arguing that a foreign state's immunity from lawsuits under the FSIA extends to individuals acting in their official capacities. The district court found that Samantar had immunity under the FSIA, but on appeal the 4th U.S. Circuit Court of Appeals disagreed.

The 9th Circuit is one of five federal appellate courts that had reached the opposite conclusion from the 4th Circuit. Chuidian v. Phil. National Bank, 912 F.2d 1095, 1103 (1990).

Justice John Paul Stevens wrote in his majority opinion that the FSIA "does not govern the determination" of whether Samantar can invoke immunity.

That's because the FSIA only refers to "foreign state" immunity, not the immunity of individuals.

Stevens wrote that "there is nothing to suggest" that the statute should extend to "an official acting on behalf of the foreign state."

He also stressed "the narrowness of our holding," which allows Samantar to assert common law immunity. Stevens noted that "it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state." In those situations, the former official could claim immunity.

Tuesday's ruling is the CJA's most high-profile victory to date. In the past, it has filed claims in U.S. courts against human rights abusers from such countries as Bosnia, Chile, and El Salvador. The group also represents human rights victims pursuing claims in Spanish courts for alleged violations that took place in Guatemala and El Salvador.

CJA's executive director, Pamela Merchant, described the ruling as a "tremendous victory" for her group that reinforces the idea that "accountability remains a priority in our country."

She is hopeful that her clients will prevail under the Torture Victim Protection Act, which "clearly contemplates that cases like this should go forward."

Merchant's point was reinforced by Sen. Patrick J. Leahy, D-Vt., the chairman of the Senate Judiciary Committee, who stressed in a statement Tuesday that Congress intended for the statute to be used against former officials of foreign countries. "The United States should not provide safe haven to those who use their position of authority to commit torture," he added.

Samantar's attorney, Shay Dvoretzky of Jones Day in Washington, said he expects his client to successfully assert common law immunity because the lawsuit relates to Samantar's official acts while in office.

"Lower courts should continue to hold that individual foreign officials are immune from suit for their official acts, as foreign courts do when U.S. officials are sued abroad," he said.

How the case is likely to come out remains unclear because the State Department has never stated a position on whether Samantar deserves immunity. The waters are muddied further by the fact that Somalia itself has been in political turmoil since Siad Barre's regime was overthrown in 1991.

Tuesday's ruling does not make resolution of the case any easier, according to Michael J. Edney of Gibson, Dunn & Crutcher in Washington, who filed a brief in support of Samantar on behalf of three former Republican U.S. attorneys general.

The problem with the ruling is that common law immunity is so unpredictable because it relies upon case-specific input from the State Department, which judges give "nearly dispositive weight," he said.

Edney had warned in his amicus brief that a ruling against Samantar could make foreign lawsuits against former United States officials more common.

"If you can't guarantee a reliable system of sovereign immunity, then other states will reciprocate," he said.