How Appealing



Monday, February 23, 2015

“C.J. Seitz nominated to Delaware Supreme Court”: The News Journal of Wilmington, Delaware has a report that begins, “Longtime corporate lawyer Collins J. Seitz Jr. has been nominated to the Delaware Supreme Court, on which his late father once served, the governor’s office announced Monday.”

Posted at 8:52 PM by Howard Bashman



How did Howard N. Shipley end up facing possible SCOTUS discipline for filing a largely incomprehensible, client-written cert. petition? Before this matter arrived as a cert. petition filed in the U.S. Supreme Court, the case was pending as an appeal in the U.S. Court of Appeals for the Federal Circuit.

The history of the case in the Federal Circuit is worth noting, and I haven’t seen it covered in detail elsewhere. While pending in the Federal Circuit, the case was known by the short name In re Teles AG, No. 12-1297 (Fed. Cir.). The Fried Frank law firm initially represented Teles AG in the Federal Circuit and filed the brief for appellant. Attorney James W. Dabney, a highly experienced patent appellate attorney who was then at Fried Frank, appeared as lead counsel for Teles AG on the brief for appellant, which was filed on July 16, 2012. The brief for appellant appears to have been written by actual lawyers, and I could not find any statement in that brief attributing any of the language in the brief to the client’s non-lawyer CEO. Teles AG also attracted an amicus brief filed in support of its position in the appeal.

In February 2013, Teles AG filed its reply brief for appellant. Neither Fried Frank nor Dabney appeared on the reply brief as counsel for Teles AG. Rather, the cover of the reply brief reflects that Fried Frank had been replaced by Foley & Lardner as appellate counsel for Teles AG. Attorney Michael D. Kaminski of Foley & Lardner appeared on the reply brief as lead counsel for Teles AG, and Kaminski’s entry of appearance in the Federal Circuit identified him as principal counsel for the client. A total of four Foley & Lardner lawyers appeared on the cover of the reply brief, a brief whose authorship a motion attributed in large measure to the client’s non-lawyer CEO.

In March 2013, Fried Frank filed a motion for leave to withdraw as counsel for Teles AG, which the Federal Circuit soon thereafter granted. Fried Frank’s motion to withdraw does not explain why that law firm was removing itself from the case, and it appears that Dabney remained at Fried Frank for another 18 months before leaving to join his current law firm.

Michael D. Kaminski of Foley & Lardner presented oral argument in the appeal to a three-judge panel of the Federal Circuit on January 8, 2014. You can access the oral argument audio via this link (4.67 MB mp3 audio file). The oral argument did not appear to go very well for Teles AG, and on April 4, 2014 the panel unanimously ruled against Teles and affirmed the judgment.

After requesting and obtaining an extension of time, Teles AG on June 9, 2014 filed its petition for rehearing en banc.

In the request for an extension of time to seek rehearing, and in the rehearing petition itself, Shipley now appeared as lead counsel for Teles AG. According to Shipley’s response to the U.S. Supreme Court’s order to show cause, Teles AG’s rehearing petition filed in the Federal Circuit “was similar to the certiorari petition at issue here” insofar as it was largely written by the client’s non-lawyer CEO. Three Foley & Lardner attorneys appear listed as counsel for Teles AG on the cover and signature line of the rehearing petition.

Although Foley & Lardner has a sizable appellate practice group, many of whom practice in Washington, DC and no doubt many of whom throughout the firm were admitted to practice in the U.S. Supreme Court, Shipley in May 2014 decided to seek admission to the bar of the U.S. Supreme Court so that he could serve as counsel of record to Teles AG, if necessary, in seeking further review of the Federal Circuit’s adverse ruling.

After having been admitted to the bar of the U.S. Supreme Court, Shipley serving as counsel of record filed two cert. petitions on behalf of this client, one in August 2014 and the other in October 2014. You can access the text of both cert. petitions via this link at “Josh Blackman’s Blog.”

The Supreme Court denied review in the first case on October 14, 2014. And the Court denied review in the second case on December 8, 2014, by means of the same Order List containing an order directed to Shipley to show cause “why he should not be sanctioned for his conduct as a member of the Bar of this Court in connection with the petition for a writ of certiorari in No. 14-424.”

Posted at 4:55 PM by Howard Bashman



“In Justices’ Tests on Standing to Sue, Answers Aren’t Always Clear-Cut”: Adam Liptak will have this new installment of his “Sidebar” column in Tuesday’s edition of The New York Times.

Posted at 3:18 PM by Howard Bashman



“Age issue: Could forcing state judges to retire earlier be prompted more by politics than by any practical concerns?” This editorial appears in today’s edition of The Lawrence (Kan.) Journal-World.

Posted at 1:22 PM by Howard Bashman



“With Kistler withdrawal, looks like Pennsylvania’s Supreme Court will stay at five through 2015”: Charles Thompson of The Patriot-News of Harrisburg, Pennsylvania has this report.

According to the article, “Senate Republican leaders have told Gov. Tom Wolf they won’t hold confirmation hearings for either of the existing vacancies at this point, and Wolf, in a statement Monday, said that he won’t make any further nominations.”

Posted at 12:58 PM by Howard Bashman



“Obama Administration Using Century-Old Racist Case Law to Block Citizenship; American Samoans are the only people born on US soil but denied birthright citizenship”: Pema Levy has this report online today at Mother Jones.

Posted at 11:02 AM by Howard Bashman



“In Defense of Court-Packing: When the Supreme Court willfully misreads the Constitution, FDR’s plan doesn’t seem so bad.” Ian Millhiser has this jurisprudence essay online today at Slate.

Posted at 10:57 AM by Howard Bashman



“Jeffrey Rosen is now a contributing editor at The Atlantic. Previously, he was legal affairs editor for The New Republic.” Via Benjamin Mullin at Poynter.org.

According to what I have learned, The Atlantic anticipates that Rosen will be writing regularly about the Constitution, the courts, and legal issues across America and around the world.

Posted at 10:52 AM by Howard Bashman



“Kistler withdraws name for consideration for state supreme court vacancy”: The Centre Daily Times of State College, Pennsylvania has this news update.

Angela Couloumbis of The Philadelphia Inquirer has a news update headlined “Wolf nominee withdraws name for Supreme Court.”

Brad Bumsted of The Pittsburgh Tribune-Review reports that “Judge withdraws as nominee for Pa. Supreme Court.”

And John L. Micek of The Patriot-News of Harrisburg, Pennsylvania has a report headlined “Amid email controversy, Pa. Supreme Court nominee Thomas Kistler to withdraw today.”

This is likely to postpone the Pennsylvania Senate’s consideration and confirmation of Governor Wolf’s other nominee, who recently began receiving his own negative news coverage (although this was also in the news at an earlier time).

The Pennsylvania Senate has a Republican majority, and these two nominees — one a Democrat and one a Republican — would allow Pennsylvania’s highest court to retain its current (and previous) Republican majority. Appointing only a Democratic Justice at this time would not only cause the court to be evenly divided politically, but it would also result in an even number of Justices, which is not ordinarily viewed as a useful or efficient attribute for a court of last resort.

Posted at 10:30 AM by Howard Bashman



Access online today’s Order List of the U.S. Supreme Court: At this link. The Court did not grant review in any new cases today.

Update: In early news coverage, The Associated Press reports that “Justices won’t give lawyers access to secret court records“; “Justices reject New Orleans tour guides’ free speech appeal“; and “Supreme Court won’t reinstate case of man who went missing.”

Lawrence Hurley of Reuters reports that “U.S. Supreme Court hands victory to Cuban cigar company.”

And at “SCOTUSblog,” Lyle Denniston has a post titled “Court passes up new global spy case.”

Posted at 9:37 AM by Howard Bashman



“What if the Supreme Court rules against Obamacare? Governors in Washington this week had no answers for a decision that could affect millions.” Kyle Cheney, Sarah Wheaton, and Rachana Pradhan of Politico.com have this report.

Posted at 8:06 AM by Howard Bashman



“U.S. Supreme Court is set for arguments in Tulsa retailer, hijab dispute; U.S. Supreme Court justices must determine whether Abercrombie & Fitch’s decision not to hire a Tulsan because she wore a headscarf was religious discrimination”: Chris Casteel has this front page article in today’s edition of The Oklahoman.

And Sam Baker of National Journal reports that “Abercrombie’s Fashion Rules Land At the Supreme Court; A woman was denied a job at an Abercrombie store because of the headscarf she wears as a practicing Muslim.”

Posted at 8:00 AM by Howard Bashman