Hi JC,

 

I'm a foreign attorney, and recently joined Marlene's team. We were hoping to have a call with you to discuss the potential Dogan cert petition and the Lewis cert petition. Would you be available after 10am PST today for a quick call?

 

Best,

Sarabeth

 

 

Good news, Marlene and colleagues:

 

Today, the Ninth Circuit denied the plaintiffs’ petition for rehearing in the attached order.  The next step, as we discussed, will be the plaintiffs’ petition for a writ of certiorari to the U.S. Supreme Court, which will be due on December 10 (ninety days from today), but could be extended up to an additional 60 days. 

 

We’ve also continued to watch the two other cases that we have discussed previously.

 

The plaintiff-respondent in Lewis v. Mutond waived their initial response to Arnold & Porter’s petition for a writ of certiorari in that case.  That was a bizarre move, in my opinion, and not one that we would recommend when our time to respond to our plaintiffs’ petition comes.  But in any event, as a result of that waiver, the Supreme Court will discuss the Lewis petition on October 1, and we expect the Court to order the plaintiff to respond.  Based on the traditional pace of certiorari practice, we would expect the Lewis petition to remain pending until after the new year, at which point we would then expect the Court to order the Solicitor General to opine on whether to grant review, which will make the petition pend even longer. 

 

Based on all of this, we expect, as we also discussed, that our case will catch up (which, in my view, is unfortunate if we want the petition in our case denied) and that the Solicitor General will then have to opine on whether to grant review of one, both, or neither and on whether we or the Lewis petitioners have the better interpretation of the court of appeals’ decisions.

 

Finally, in the Nigerian case (Doe v. Buratai), the D.C. Circuit announced that it will resolve that case without oral argument sometime after September 23.  I think that is probably a good sign.  My fear with that case was that the D.C. Circuit could use it to clean up some of the uncertainty about exactly what Lewis held and do so in a way that is bad for foreign officials.  But the case presented not only a (non-SOI) foreign official immunity issue, but also a very solid challenge to personal jurisdiction over the Nigerian officials.  I may be wrong, but if I was forced to wager, my best prediction is that the D.C. Circuit will issue a non-precedential decision affirming the dismissal for lack of personal jurisdiction.

 

Hope you are well, and we’ll be in touch again once there is more to report.

 

All the best,

 

jc   

 

 

Hi Marlene --

 

Yes, DOJ/State could weigh in as well. 

 

If the court orders us to respond, the court will give us 21 days (which we could move to extend if needed).  By rule, the government could file a response supporting us 10 days after we file.  I presume that the Solicitor General’s authorization for the government’s participation thus far (their merits-stage amicus brief, oral argument, and FRAP 28(j) response) also extends to responding to the plaintiffs’ rehearing petition.  But in light of the Lewis petition’s pendency and the need for the government to be consistent in what they say in our case and in Lewis, Lewis Yelin feel compelled to seek an additional authorization to continue participation in our case. 

 

As a result, I think our plan should be that, if the court orders us to respond to the petition, we get Lewis Yelin on the phone right away to see if he plans to file or if he feels he needs to seek further authorization (and if the latter, whether he wants us to formally request that he seek the additional authorization).

 

Best,

 

jc

 

 

Dear JC,

 

Thank you for the helpful summary, as always.

 

To the extent the Court does ask for a response to the petition, could DOJ/State weigh in as well, or would it be limited to the parties?

 

Marlene  

 

 

Hi Marlene --

Attached please find the plaintiffs’ petition for panel rehearing and rehearing en banc filed on Friday evening.  As we expected, they primarily assert an intra-circuit conflict with, among other precedents, the Ninth Circuit’s Philippine decisions and inter-circuit conflicts with Lewis and Yousuf.

We haven’t yet taken a deep dive into it because, as I mentioned previously, we are only permitted to respond if ordered to do so by the court, and we hope that the petition is denied out of hand.  Under the Ninth Circuit’s General Orders, an order for a response may come at any time while the petition remains pending, and if no response is ordered, the court may deny the petition any time after 21 days from the petition’s filing.  So, in a nutshell, there is no firm date by which we can expect any news on the plaintiffs’ petition, but if 21 days pass with no activity, we are likely in the clear.

Although we haven’t taken a deep dive yet, one thing that jumped out at me is how our plaintiffs take a broad view of the scope of our decision in order to bolster their claims of conflict.  In this regard, their assertions are quite similar to the Lewis petitioners’, highlighting the potential conflict issue we discussed earlier.  Our plaintiffs, for example, never acknowledge that a number of our panel’s holdings took into account the fact that there was an SOI in our case, which makes it categorically different from Yousuf where there was a statement of non-immunity and Lewis where there was nothing.  Contrast Slip op. 4 (describing the decision as resolving whether a suit may “be brought” “against a foreign official where the official’s acts were performed in his official capacity, where the sovereign government has ratified his conduct, and where the U.S. Department of State has asked the judiciary to grant him foreign official immunity”); id. at 12 (holding that the SOI was entitled to at least “substantial weight” in the immunity analysis); id. at 19 (“[N]o court has ever carved out a[ jus cogens] exception to foreign official immunity” where “the foreign sovereign has ratified the defendant’s conduct and the State Department files a Suggestion of Immunity on his behalf.”).  The Lewis petitioners similarly cite our decision over a dozen times to illustrate the conflicts that they assert but never acknowledge that our panel’s holdings were against the backdrop of an SOI or that the Lewis court itself recognized that where “a foreign official requests a ‘suggestion of immunity’ from the State Department and [it is] granted, the District Court is divested of jurisdiction.” 918 F.3d at 145.

In any event, just some food for thought. 

We’ll of course be in touch if the Ninth Circuit orders us to respond to the petition and/or denies it.

Best,

jc

 

 

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United States Court of Appeals for the Ninth Circuit

Notice of Docket Activity

The following transaction was entered on 08/16/2019 at 5:52:00 PM PDT and filed on 08/16/2019

Case Name:	Ahmet Dogan, et al v. Ehud Barak
Case Number:	16-56704
Document(s):	Document(s)

 

Docket Text:
Filed (ECF) Appellants Ahmet Dogan and Hikmet Dogan petition for panel rehearing and petition for rehearing en banc (from 08/02/2019 opinion). Date of service: 08/16/2019. [11400893] [16-56704] (Olney, Brian)

Notice will be electronically mailed to:

Ms. Katherine Gallagher, Senior Attorney
William Aceves
Mr. Jean-Claude Andre, Attorney
Marco Simons
Douglas Axel, Attorney
Dan Stormer
Ms. Sharon Swingle
Lewis Yelin, Attorney
Ms. Cindy Panuco, Attorney
Brian Olney
Christopher Egleson
Howard J. Stanislawski
Ms. Haydee Dijkstal
Daniel Jacob Feith


The following document(s) are associated with this transaction:
Document Description: Main Document
Original Filename: Petition for Rehearing and Rehearing en banc.08-16-19.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1106763461 [Date=08/16/2019] [FileNumber=11400893-0] [4cd867572863504c03064aba5a23f866b95c1358b6d77a1ce87ad1ec0ce1bc30969abfcc8dd3231cbdc2ebb2933bf3b6ecc86c064588c43b923e7b1d0de93f00]]

 

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