Students Represent Appellees in Litigation Practicum
Through Southwestern's Appellate Litigation Practicum, students gain real world experience working with Professor Caleb Mason on pro bono appeals in the Ninth Circuit - up to and including oral argument before the court. Students get hands-on training in legal research and writing as well as substantive law as it applies to the cases. They participate in every step of the process, including review of the file; meeting with the client; assessing possible claims; researching case law; proposing arguments; drafting, revising, and proofing the opening brief; reviewing the response brief; drafting, revising, and proofing the reply brief; and negotiating possible settlement.
Last year, Melanie Avanessians '11 successfully argued before the court. Below, Professor Mason discusses additional cases that were part of the Practicum involving a variety of issues, from deportation protection to sexual harassment.
Ashton v. Brand Scaffold
Our client was a female construction worker in Reno who alleged that her supervisors had sexually harassed her on the job site. The district court granted summary judgment to the employer. The case presented several interesting legal issues, including two that are not well-settled: First, what is the proper test for determining when a co-worker is a supervisor? Second, how does the "severe or pervasive" adverse conditions test - the test for establishing hostile workplace environment - apply to short-term workers, such as those on a one-month long construction project?
The students did extensive research on hostile workplace environment fact patterns, and we filed our brief in March, arguing that our client had been subjected to severe and pervasive sexual harassment, both verbal and physical, that the principal harasser was her supervisor, and that the company had not adequately responded.
The case was selected for the court's mediation program, and after several phone sessions, Amanda Moghaddam '11 and I went up to Reno on May 3, 2011 for a full day of in-person mediation at the courthouse in Reno, at which the case settled. The experience was particularly useful for Ms. Moghaddam, who now works at a litigation firm (Bonnie Bridges) and will be doing this a lot.
Chappell v. Mandeville
Our client is a state inmate, who alleges that his Eighth Amendment and due process rights were violated during a "contraband watch," in which he was kept in a small, hot room under bright lights for a week, under constant observation in tight restraints with his ankles shackled and his hands cuffed to a waist chain so that he could not move his arms. He was also taped into two layers of clothing and chained to a cot. Correctional officers suspected that he had swallowed contraband during a visit in an attempt to smuggle it in to the prison.
The lights were on twenty-four hours a day, and he could not move his arms to shield his face. The restraints were not even loosened to allow him to eat; instead his food was set on the floor on a tray, and he had to lie down and eat with his face on the tray.
While this might sound like run-of-the-mill torture, the principal Eighth Amendment harm on these facts is sleep deprivation. (There's a separate due process claim that arises because no one at the prison will admit to having ordered this procedure, and the logbooks apparently have been lost.) Ms. Moghaddam argued the case in San Francisco in August, and we have not yet gotten a decision. I am hoping for a potentially significant opinion - but you never know until it comes.
Garcia de Ruiz v. Holder
This case raises some big constitutional questions. Our client claims she was born in Los Angeles, and she has a birth certificate from California to prove it. But she didn't get it at birth; it's a "Delayed Registration of Birth" that was issued by order of the Superior Court here in LA. The client's family went to court to get the certificate after the government deported the client to Mexico. Then, once she got it, she tried to reopen her deportation proceedings, on the (seemingly reasonable) grounds that she now had (as one of the Ninth Circuit judges put it) the same evidence of U.S. birth that any other citizen has, all the way up to the President. But the immigration courts refused to reopen her case.
On appeal, with Shannon Wainwright '12 arguing, we persuaded the Ninth Circuit that the government agency in question (the Board of Immigration Appeals) was wrong, and the court sent the case back to the agency. Now we'll see what the agency will do: dismiss the deportation proceedings, order a new hearing at which she can present the birth certificate, or find some other reason to reject it. But it's an undisputed court order from the state court of a sovereign state. There is a real constitutional problem with a federal agency simply refusing to credit a state-court order, particularly on a question of birth - registration of which is a quintessential state function, in which the federal government plays no part.
Southwestern is sticking with this case, and we've also been appointed to handle the appeal of a parallel criminal conviction, in which the client was convicted of fraud for applying, from Mexico, for a U.S. passport on the basis of her California birth certificate. This case is a perfect illustration of the unsettled relationship between state and federal government on immigration-related issues.
Acevedo v. Holder
This is a technical case about the relationship between immigration law and criminal law, and was argued by Daniel Kohler '12 in March. The case addresses the use in immigration proceedings of prior state convictions. When a person is in removal proceedings, his prior criminal history is all-important, because many categories of crimes are deemed "aggravated felonies" for immigration purposes and render the immigrant ineligible for discretionary relief from removal. However, some of the categories in the federal immigration statute are vague, and with fifty state criminal codes and a bewildering array of state crime definitions, it's often difficult to determine whether a particular state-law conviction fits into a particular "aggravated felony" category. Accordingly, the federal courts have developed some technical rules to govern the use of state convictions in immigration proceedings.
Very roughly, when a state-law definition is broader than the federal immigration definition for a particular category of crime, the state conviction record has to be detailed enough that the courts can reconstruct exactly what acts the defendant admitted or was found to have committed. But state criminal practice is much less formal than federal criminal practice, and so - as in this case - the records of the state proceedings are sometimes too sparse to be used as deportation predicates. This case tests the boundary of how far the government can push an almost-silent state-court conviction record: if the state courts never made a record of exactly what the person did that made him guilty of the offense, can the federal government still use that conviction later to show that he's an aggravated felon and must be deported with no eligibility for relief?
Our client, by the way, was brought here from Panama at age 7 by his parents. Now he's 50. He's never been back, has no family there, and doesn't speak Spanish very well. He has lots of family here and a solid employment record (along with some minor nonviolent crimes). Those facts would make him a good candidate for discretionary relief from removal, but because he's classified as an aggravated felon, he can't even apply. A decision has yet to be rendered.