Legal Docket: The state of the courts

MARY REICHARD, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 7th of January, 2019. Good morning to you! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up today, the state of the courts.

Supreme Court Chief Justice John Roberts released his annual year-end report. It was his 14th since he became chief justice in 2005. The report includes a statistical snapshot of the federal court system’s workload. Here are a few salient facts:

The number of lawsuits filed in the federal district courts increased 6 percent this past year, with nearly 300,000 cases filed. But cases filed in the appellate courts fell 2 percent.

Bankruptcy appeals fell 10 percent, no surprise given the strong economy.

REICHARD: Here are a couple of items I found particularly interesting in the chief’s report: He summarized the judiciary’s response to allegations of sexual misconduct. And he lauded efforts of court employees who volunteer to help after natural disasters.

But to me the most interesting was his ode to law clerks.

He wrote how in 1928 Justice Louis Brandeis had intended to include a line in a dissenting opinion. It was in a case involving illegal alcohol—remember, this is the Prohibition era. Federal agents uncovered a bootlegging conspiracy by using wiretaps. They had no warrant.

The majority justices said that was okay, but Brandeis dissented. He originally wrote a line about how the newly invented television technology would let government see right inside people’s homes.

His young law clerk, Henry Friendly, explained to his boss that that’s not how TV works. So that line came out.

Chief Justice Roberts noted that illustrates how youthful knowledge about tech matters and mature wisdom on higher principles work for the benefit of all.

EICHER: True, and we see it in journalism, too, where fresh perspectives meet lived experience, and, of course, vice versa.

Well, the Supreme Court is back hearing oral arguments today after a break. And Mary, you had two weeks off from covering them, so I’d guess it’s time to play catch up.

REICHARD: Oh, boy. That’s the downside of time off, isn’t it? Yep, I have plenty to cover before the next time the justices take a break.

So let’s jump in with a case called Republic of Sudan vs. Rick Harrison, et al. Back in October 2000, Rick Harrison was on the destroyer ship U.S.S. Cole as it refueled in Yemen. Some Al Qaeda suicide bombers came alongside the ship in a fiberglass boat and detonated explosives. Rick Harrison was seriously injured, as were 42 others. The blast killed 17 American sailors.

EICHER: Harrison and some of the others sued the nation of Sudan.

They asserted that Sudan provided material support to the terror group and was therefore responsible for the attack. They sued under the Foreign Sovereign Immunities Act.

Sudan was then and is now considered by the U.S. government as a state sponsor of terrorism.

After years of litigation, the sailors and their families finally won what’s known as a default judgment against Sudan in 2012. “Default” because Sudan didn’t bother to defend itself.

But the country’s non-response to the lawsuit, it says, is because it was improperly served. That’s the issue before the Supreme Court: whether notice of lawsuits filed against Sudan went to the wrong address.

REICHARD: Sudan says mailing the lawsuit to the Sudanese embassy in Washington, D.C. isn’t the right way to do it. The service papers should have been mailed to the head of ministry of foreign affairs in Khartoum. Because it was not, Sudan had no proper notice of the lawsuit, and that’s why it didn’t show up in court to defend the case.

So Sudan argues that default judgment isn’t valid.

The chief justice seemed incredulous. Listen to this exchange with lawyer for Sudan, Christopher Curran.

ROBERTS: I would have thought it would be much more convenient for them to get notice that they’re going to be sued in the United States at the United States embassy.

CURRAN: I think the reality is a foreign ambassador located in Washington, D.C., gets flummoxed at the prospect of receiving service of process. Doesn’t know what to do with it, doesn’t know what it’s all about. They’re generally not lawyers.

ROBERTS: Flummoxed?

CURRAN: Flummoxed.

ROBERTS: And somebody in Khartoum isn’t?

REICHARD: Federal law says service by mail with return receipt requested to the head of the ministry of foreign affairs is an acceptable way to serve a lawsuit.

But it doesn’t specify where to send the papers.

Lawyer for the victims, Kannon Shanmugam, took it to the practical level. As in, you’ve gotta be kiddin’ me.

SHANMUGAM: No one can dispute that Sudan had actual notice of this case and, of course, more than actual notice of the ongoing Cole litigation, which had been going on for many years.

REICHARD: Surprisingly, the United States government sides with Sudan here. That’s because the government doesn’t accept notice at its embassies around the world. The United States argues that ruling against Sudan would jeopardize that practice.

Yet not all the justices were sympathetic to Shanmugam’s argument for the victims.

Justice Stephen Breyer worried about something Shanmugam left out of his statement of the case. Something at which judges often look askance.

BREYER: I look to purpose… I cut that a little against you because you had mentioned—left one word out of your beginning.  You said you won a $300 million judgment. You left out the word ‘default.’ It was a default judgment.

And, of course, that’s the concern, that’s the purpose concern, that they have one ambassador, an assistant, and four people working in the mailroom who are all American citizens and never even been to the country. And they don’t know what to do. And you only have 60 days to answer. Okay?

And so who knows what’s going to happen to that piece of paper in many embassies. More than 60 days before they even get it over in their country.  

REICHARD: Well, Shanmugam had a practical answer for that, too, citing another case involving Sudan.

SHANMUGAM: And I do think one factual point here bears emphasizing. This method of service was first attempted by my co-counsel, Mr. Hall, in the Rux case in 2004. The reason that we attempted service at the embassy was for the simple reason that, in 2004, Sudan was at the tail end of its civil war and it was very hard to find someone who would deliver a package to Khartoum with the requisite return receipt. And so this case really illustrates why this policy makes sense.

REICHARD: There is another way that the victims here could serve the lawsuit papers, and that’s through State Department procedures. But it wasn’t done that way here, and lawyer Curran for Sudan argued the letter of the law cuts in his favor.

Justice Elena Kagan inserted her own practical understanding of things.

KAGAN: But Mr. Curran, I guess I’m wondering, the statutory language does not say “At his own office.” And in the absence of that kind of language, there seems something special about embassy situation…that’s just everybody understands that embassies are supposed to be the point of contact if you want to do anything with respect to a foreign government.

REICHARD: Perhaps victims lawyer Shanmugam had the upper hand in this exchange with Justice Samuel Alito who asked about some other way to serve the paperwork.

ALITO: That would be the consequences in this particular case if you had to go back? If we were to rule against you and you succeed in achieving service under a(4) is there any indication that Sudan would appear?

SHANMUGAM: Well, I think that’s a question for Mr. Curran but we would certainly have to start over in this case. And that would be the height of unfairness to the Cole victims.

REICHARD: Outside the courtroom stood the families of three sailors who were killed, along with two of the service members aboard ship when it was bombed.

Contrasting what happened to them with a possibly misaddressed letter, the case seems outlandish. But with millions of dollars at stake, conflicting laws and practices, and state sovereignty claims, this is what can happen.  

I can’t tell from the arguments whether there are five votes here for either side to win.

My next case deals with an aspect of the nation’s safety net: the Social Security Disability Insurance program, SSDI.

Last year, more than 8.5 million Americans received SSDI. That’s a payout of around $10.5 billion. It’s the second biggest slice of the Social Security pie. (The biggest slice, $61 billion, went to 43 million retired workers.)

Whether an SSDI claimant gets approved depends in part on what a vocational expert says. And that’s at the center of this case.

An SSDI vocational expert is someone whose job it is to understand the skills needed to do certain jobs and determine whether those jobs are available in the labor market. And then after that to determine what the claimant’s prospects are for other work.

Justice Sonia Sotomayor bluntly said what many people think about these experts.

SOTOMAYOR: You’re worrying me that this is, in fact, what all of the critics are saying, that these are numbers pulled out of a hat as a person sits there.

REICHARD: In this case, a carpenter stopped working due to back pain. SSDI denied him benefits for a period of time he claimed to be disabled from work.

The technical question is whether the vocational expert has to reveal the underlying data she used to reach her expert conclusion.

The lawyer for the social security administration said that’d be awfully burdensome, but Chief Justice Roberts wasn’t buying that.

ROBERTS: Usually, when you’re having someone testify to data and numbers, the way you cross-examine is to ask what she relied on and then see if that testimony lines up.

LAWYER: Yes…

ROBERTS: Yes, but here she says I can’t give ya the data upon which I relied.

LAWYER: Well, no…

REICHARD: The Social Security disability system hears more than 2,000 cases per workday in this country. The manual for vocational experts says they should be ready to reveal the basis for their opinions. Lawyers, clients, and taxpayers would be well served if the high court makes the rules crystal clear. And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Sept. 21, 2018, file photo, the Supreme Court is seen in Washington. 

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