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Boodt: U.S. Supreme Court journey offers many lessons

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Indiana Lawyer Commentary


Last spring, after the 9th Circuit Court of Appeals denied USA Funds' petition for rehearing en banc in an important student loan bankruptcy case, my colleagues Joni Anderson and Julie Ragsdale recommended that USA Funds file a petition for certiorari with the Supreme Court of the United States. My initial reaction was that such a petition would cost a lot of money and have little chance of success. My colleagues would not accept that, emphasizing the decision's importance to our business interests, a split among the federal circuits, support from our regulator - the U.S. Department of Education, some troubling dicta included in the 9th Circuit's opinion, and the application of the holding of the case outside of federal student loans to other debts that are not dischargeable in bankruptcy. Being at least wise enough to recognize their logic and the strength of their convictions, but still under the impression that our efforts were somewhat perfunctory, we nonetheless were off on a journey that has been fascinating; certainly not the usual fare for three in-house student loan attorneys.

Petition for certiorari


Being new to the process, we didn't know that the first decision is who to hire to draft the petition. We have since learned that if you want to increase your chance for success, you are supposed to hire experienced Supreme Court practitioners. The logic is that these practitioners once were Supreme Court clerks, know the code words and can frame the issue in ways more likely to grab the Supreme Court's (or a clerk's) attention. At any rate, we didn't know better and allowed our appellate counsel to draft the petition, encouraged other participants in the federal student loan industry to file amicus briefs, and argued that our case involved matters important to the United States in addition to a split in the circuits. In the process, we did learn that the Office of the Solicitor General rarely weighs in on a case until it has been accepted by the court. Even though the Department of Education could not convince the Solicitor General to file an amicus brief at the petition stage, we successfully persuaded two industry participants and the bankruptcy counsel for the National Association of Attorneys General to submit a brief, which was expressly endorsed by 11 states.

Merits briefing


On June 15, 2009, we learned the Supreme Court granted our petition. After a few moments of elation, it hit us that we now needed to prosecute a case before the highest court in the land. We were definitely in uncharted territory. While there is plenty written on Supreme Court practice, including a helpful guide published by the court, we did not find any resources about how a three-person legal department in Fishers, Ind., should manage the process.

The first question was whether we needed additional help from someone experienced in Supreme Court practice. Easy enough: A resounding yes. Upon the recommendation of a well-respected Washington attorney, two former U.S. Supreme Court clerks were added to our team. One offered mastery of judicial insights and the other contributed invaluably to our written briefs. Each of our two law firms brought distinct experiences, strengths, and personalities to the team. As general counsel, the challenge for me was to define the roles and responsibilities during briefing and oral argument preparation, and to manage the personalities and interworking of our team of bright and seasoned lawyers.

One of the major differences in Supreme Court merits practice is the prevalence of amicus parties. Once cert was granted, the scope of potential assistance increased greatly. Much time was spent in the days after cert was granted strategizing who we wanted to file amicus briefs on our behalf and who we did not. We began an active campaign to solicit entities for support. Some were immediately helpful; others never called us back. In total, eight amicus briefs were filed. Interest in our little student loan bankruptcy matter had grown substantially.

The opportunity to persuade the Solicitor General to file a brief in support of USA Funds was critical. We knew that having the United States weigh in against our position would present an almost insurmountable hurdle. Prior to making a decision on which side to support, if any, the Solicitor General meets separately with counsel for the petitioner and respondent. We left the meeting feeling positive, but were not informed of the government's position prior to the filing of the Solicitor General's brief. Reading that the United States did support USA Funds certainly gave us encouragement.

A related issue is what to do about unhelpful amicus briefs. Notwithstanding Supreme Court Rule 37, it turns out very little. The plain text of the rule indicates that the petitioner and respondent must agree, or the person seeking to file the amicus brief must seek leave of the court, which is not favored. The practice, however, is to routinely grant requests from almost anyone who wants to file an amicus brief so as to not seem as if you are running from a position. Also, we learned the court more freely grants requests to file an amicus brief than the rules would indicate.

The actual briefing on the merits differed more from appellate practice than we initially thought. One of the major differences was that we no longer focused on the decisions of the various circuits. In fact, once the petition for certiorari is granted the Supreme Court seems to care little about the lower circuit opinions. Instead, the Supreme Court looks to what makes sense as the law of the land, not just in bankruptcy but also in other areas of the law. As our case developed over the summer and fall, our arguments moved away from specific references to the bankruptcy code and rules to global tenets of statutory construction and principles of finality, waiver and voidness. Our citations changed from federal circuit courts to mostly Supreme Court decisions.

Oral argument

Even though I hold to my belief that briefs decide many more cases than do oral arguments, oral argument at the Supreme Court level does seem to get everyone's attention. We had many individuals privately solicit us to argue the case.

Generally a party is given 30 minutes for oral argument. In our case, the Office of the Solicitor General requested 10 of our 30 minutes to argue on behalf of USA Funds. After thinking about it for a few seconds, we acquiesced to the request even though they would take two of our four seats at counsel table, including mine.

Now that is taking one for the team.

As was true during the briefing stage, the emphasis of our argument continued to evolve as we prepared for oral argument. We decided to focus on well-known principles of statutory construction and what outcome makes sense rather than spend too many of the few minutes we had on the intricacies of the bankruptcy process. The goal was to sift the case down to a few sentences and to have succinct answers to questions likely to be asked by the justices. To prepare for oral argument, we had four formal moots. Each panel focused on different issues. In our best moot, the panel did such a good job of role playing that often we could pick out the justice. In the end, I think that four was about the right number. For those looking to save a little money, Georgetown Law Center offers a well-regarded free program to help prepare counsel. The moot court room at Georgetown mimics the actual Supreme Court courtroom right down to having the same carpet and clock. Not sure that helps, but a nice touch.

Dec. 1, 2009, will be a day I long remember. Strangely, one of my biggest worries that morning was that all of our guests made it to the court and had reserved seats waiting. The whole process of reserving seats is convoluted so there was reason to worry that someone would have not been included on the all-important list. The courtroom of the Supreme Court, while not huge, is something to see - high ceilings and massive marble pillars - with the lectern only a few feet from the chief justice. Because the justices are so well known, it felt odd to see them in person and so close. For those who have not attended an oral argument of the Supreme Court, you must include it on your bucket list.

Our 20 minutes before the court went pretty much to plan. We successfully predicted almost all of the areas of inquiry. Justice Antonin Scalia, consistent with his reputation as a curmudgeon, scolded the attorney arguing on behalf of the Solicitor General for not having one of the key statutes more handy in the record. Justice Ruth Bader Ginsburg did a bit of teaching to Justice Sonia Sotomayor about not interrupting a senior justice. While the justices may not be experts in bankruptcy law, they certainly were well-prepared. We were impressed that oral argument is serious people having a serious discussion about serious matters.

Now we wait for the opinion. The experience has taught us how a case changes once you are before the Supreme Court. What was once a procedural bankruptcy matter becomes a discussion as to the tensions between process and finality, when litigation begins and ends, waiver and voidness. Maybe most surprising, we were taken aback by how many people and entities were engaged in and followed the case. We certainly were not used to being written about in trade journals, bankruptcy publications, and even the popular press - including appended less-than-kind comments from readers.

Argument day ended on a surreal note. Driving home from the airport that night, with a big full moon in my front windshield, I turned on National Public Radio. Nina Totenberg was giving a blow-byblow recount of the interplay between the justices and counsel in our case. I felt like an athlete listening to sports radio on the way home from the game. Hearing Nina Totenberg talk about one's case is about as good as it gets.

Well, it would have been even better if she'd favored our side.

David Boodt is vice president, general counsel, and corporate secretary for USA Funds. The opinions expressed in this column are the author's.

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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