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.
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.
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.