*Mr. Rosdeitcher is Senior Policy Advisor at the Brennan Center for Justice at New York University Law School and Of Counsel to Paul, Weiss, Rifkind, Wharton and Garrison LLP. Mr. Beha is an associate at Paul, Weiss. Mr. Rosdeitcher is co-author of an amicus brief submitted in one of the cases previewed here, Clapper v. Amnesty International in support of the plaintiffs-respondents and on behalf of amici that included the Chief Counsel of the Brennan Center.
On October 29, 2012, the Supreme Court will begin its second session of the 2012 Term. On its calendar are an important civil liberties case and three cases involving important issues of access to justice. These include issues concerning:
- Standing to sue that may determine whether the government can effectively immunize from judicial review questions concerning the constitutionality of mass surveillance programs, authorized by Congress in 2008, that lack any meaningful judicial safeguards;
- The retroactive effect of the Supreme Court’s decision that failure to advise a defendant of the immigration consequences of a guilty plea amounts to ineffective assistance of counsel justifying vacation of a guilty plea;
- The proof required for class certification in light of the Supreme Court’s decision in Wal-Mart v. Dukes; and
- The availability of litigation costs to a prevailing debt collector in suits under a statute aimed at protecting debtors from abusive debt collection practices.
Standing to Challenge Government Surveillance Programs
The very first case the Court will hear on October 29, Clapper v. Amnesty International, No. 11–1025, addresses the critical issue of standing to challenge the constitutionality of the 2008 amendments to the Foreign Intelligence Surveillance Act (“FISA”).
In 1975, the Senate formed a special committee, known as the Church Committee, to investigate, among other things, alleged abuses of foreign intelligence surveillance by the executive branch. The Committee found widespread and shocking unconstitutional and unlawful surveillance abuses in every Administration going back to that of Franklin Roosevelt. In response to the Church Committee’s findings and recommendations, in 1978, Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) which, among other things, required detailed judicial safeguards of surveillance activities including surveillance of communications by American citizens and lawful residents (“U.S. persons”) with foreign persons outside the United States. These safeguards included stringent judicial review by the special court created by FISA, the Foreign Intelligence Surveillance Court (“FISC”), in advance of any proposed government surveillance covered by FISA and empowered FISC to monitor such surveillance to assure that it complied with procedures to minimize misuse of information unnecessarily collected from innocent U.S. persons.
Following the attacks of September 11, 2001, the Bush Administration first disregarded those safeguards in its warrantless Terrorist Surveillance Program and then in 2008 persuaded Congress to enact amendments to FISA. Among other things, the 2008 amendments authorized the executive branch to bypass FISA’s detailed advance judicial review procedures requiring the government to obtain an order from FISC to conduct electronic surveillance, where the surveillance involved communications into and out of the United States with foreign “targets” located outside the United States. Instead, the 2008 amendments authorize the government to conduct a generalized, mass surveillance program of communications with unidentified foreign targets located outside the United States, for a period of up to one year, subject only to the most perfunctory judicial review and without any advance judicial review of individual, specific surveillance activities. The amendments also eliminated the FISC’s authority to monitor the compliance of such surveillance with minimization procedures.
In Clapper, the Second Circuit held that a group of lawyers and human rights and media organizations had standing to challenge the constitutionality of the 2008 amendments. These plaintiffs could not show that they were in fact the subject of surveillance because the government treats as a state secret the identity of persons subject to surveillance. Nevertheless, given the nature of their professional work, the Second Circuit found that plaintiffs had a reasonable fear that they were in fact subject to such surveillance and had to take costly steps to protect the confidentiality of their communications. The court therefore found that plaintiffs satisfied the required showing of a concrete injury resulting from the challenged amendments sufficient to establish standing to sue and reversed the contrary finding of the district court.
Rehearing en banc of this standing issue was denied by the Second Circuit on a 6—6 vote. The Supreme Court granted interlocutory review of the standing question.
The government, relying particularly on the Supreme Court’s decision in Laird v. Tatum, argues that standing must be based on a showing that respondents were actually the subject of surveillance and cannot be based on a “subjective chill” of respondents’ constitutionally protected communications. The government also argues that the costs incurred by the respondents were self-inflicted and not the direct result of the 2008 amendments.
Plaintiffs-respondents argue that Laird is distinguishable because there the plaintiffs could not show they had a reasonable basis for believing that they were the subjects of government surveillance and in fact admitted that their communications were not chilled. Moreover, plaintiffs-respondents argue that the costs they incurred were a direct result of the challenged 2008 amendments. Because the amendments created a sufficiently reasonable fear that respondents’ communications would be subject to surveillance, they maintain that the ethical obligations of the lawyers to maintain the confidences of their clients and a similar need by all the respondents to keep confidential their communications with overseas clients, witnesses, interviewees and colleagues in the course of their professional activities, left the respondents no choice but to replace electronic communications with such persons with costly steps like foreign travel to meet with the persons with whom they wished to communicate.
Because the identity of persons subject to surveillance is a government secret, it is highly unlikely that any U.S. persons could ever show that they were in fact the subject of such surveillance. Accordingly, if the plaintiffs-respondents in this case do not have standing, it is likely that serious questions as to whether surveillance conducted under the 2008 amendments violate the First and Fourth Amendments will escape review altogether.
In fact, all efforts to challenge the legality and constitutionality of the Bush Administration’s post 9/11 Terrorist Surveillance Program failed for want of standing, as several circuits rejected the kind of standing arguments accepted by the Second Circuit here. At stake therefore on this appeal is whether the judiciary’s role as a check on unconstitutional actions by the other branches can be nullified by government secrecy.
The Retroactive Effect of the Supreme Court’s Ruling That Failure to Advise of the Consequences of a Guilty Plea Amounts to Ineffective Assistance of Counsel
On October 30, 2012 the Court will hear argument in Chaidez v. United States, No. 11–820, which raises the question of the retroactive effect of the Court’s earlier decision in Padilla v. Kentucky holding that counsel’s failure to apprise a defendant of the adverse immigration consequences of a guilty plea amounted to ineffective assistance of counsel warranting vacation of a conviction.
In Chaidez, the defendant sought to invoke Padilla in a federal habeas proceeding to overturn her conviction that became final before Padilla was announced. In Teague v. Lane, a case involving a federal habeas attack on a state court conviction, the Court held that a defendant could not invoke a Supreme Court ruling decided after his or her state conviction became final if the ruling involved a “new” rule, rather than an application of an established rule to a new set of facts. Relying on Teague, the Seventh Circuit affirmed the denial of Chaidez’s habeas petition.
Chaidez’s appeal raises two questions: First, whether Padilla announced a new rule or merely involved the application of principles concerning ineffective assistance of counsel long since established by Strickland v. Washington. The government argues that prior to the Supreme Court’s decision in Padilla the majority of circuits held that counsel’s failure to advise a defendant of the immigration consequences of a guilty plea did not amount to ineffective assistance of counsel and therefore Padilla announced a new rule.
Chaidez argues that it was well established before Padilla that a lawyer’s failure to advise a defendant of the immigration consequences of a guilty plea fell below objective professional standards—thus meeting the first prong of Strickland’s definition of ineffective assistance—and the prejudicial effect of such inadequate advice is obvious and therefore met the second prong of the Strickland definition.
The second question raised in Chaidez is whether even if Padilla were a new rule, Teague has any application to a case like this one involving a federal, rather than a state, conviction. Teague, argues Chaidez, reflects principles of federalism and comity requiring deference to state court judgments and the finality of those judgments. But those principles, Chaidez maintains have no application to a habeas challenge to a federal conviction.
In such a case, comity and deference to the state is not involved. Moreover, with regard to finality, Chaidez argues that the Supreme Court in Massaro v. United States opined that it was preferable that ineffective assistance of counsel claims be brought in collateral attacks on convictions rather than in direct appeals, as there were frequently factual issues requiring additional evidence that could be introduced in a habeas proceeding that would not be available on direct appeal. Accordingly a rule barring the retroactive application of a Supreme Court rule announced after the conviction became final would be inconsistent with Massaro, giving defendants’ counsel an incentive to raise new Supreme Court pronouncements on direct appeal.
The government argues first that Chaidez forfeited the argument that Teague does not apply to her habeas petition because she did not raise it below or in her petition for certiorari. On the substance of the argument, while the government acknowledges that comity concerns are not implicated by the application of new rules to federal habeas petitions, it argues that the finality concerns justify applying Teague. The government also argues that applying different rules to collateral challenges to state and federal convictions would create inequities and undermine confidence in the criminal justice system. With regard to Chaidez’s argument that, in light of Massaro, Teague should not apply to ineffective assistance of counsel claims, the government argues that such a rule would conflict with the purpose of Teague to avoid case-by-case determinations of the application of new criminal procedural rules.
The Court’s decision in Chaidez will, of course, have serious consequences for those awaiting deportation because their attorneys failed to advise them of the immigration consequences of a guilty plea. But the decision could have even broader effects if the Court determines that the Teague rule does not apply to federal convictions, potentially affecting a great proportion of habeas petitions challenging federal convictions.
The Evidentiary Burden at Class Certification
On November 5, 2012, the Court will hear argument in Comcast Corp. v. Behrend, 11–864, which raises the question whether a plaintiff seeking to represent a class of similarly situated plaintiffs must adduce admissible evidence at the class certification stage that the class’s alleged damages are capable of measurement on a class-wide basis using common proof.
In Comcast, cable subscribers brought a purported class action against Comcast asserting claims for damages based on violations of the federal antitrust laws.
Plaintiffs moved for class certification under Federal Rule of Civil Procedure 23(b)(3), which requires, among other things, that plaintiffs show by a preponderance of the evidence that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Claims for treble damages under the Clayton Act require a showing of measurable damages, often referred to as proof of antitrust impact. Hence, to demonstrate predominance of common questions under Rule 23(b), plaintiffs were required to show that the alleged damages were capable of measurement on a class-wide basis using common proof. To do so, plaintiffs submitted a report from an economic expert presenting a model for calculating class-wide damages. Comcast submitted its own expert report, purporting to undercut the conclusions of the plaintiffs’ expert and noting that plaintiffs’ damages model was constructed while several later-dismissed claims were still in the case. The district court certified the class on the ground that whether or not plaintiffs’ model provided an accurate measure of damages, it showed that there was a common methodology that could be used to measure and quantify damages. In affirming the district court, the Third Circuit explained that
Many of Comcast’s contentions ask us to reach into the record and determine whether Plaintiffs actually have proven antitrust impact. This we will not do. Instead, we inquire whether the District Court exceeded its discretion by finding that Plaintiffs had demonstrated by a preponderance of the evidence that they could prove antitrust impact through common evidence at trial.
Before the Supreme Court, Comcast argues that the plaintiffs’ expert report was not sufficient to demonstrate commonality because its measurement of damages relied on damages theories that had been dismissed. Accordingly, Comcast argued that the evidence would not have been sufficient to prove damages at trial. Comcast also argues that the district court improperly failed to determine whether plaintiffs’ expert report was admissible under Daubert v. Merrell Dow Pharm. In short, Comcast argues that to meet its burden to certify a class, a plaintiff must adduce admissible evidence to meet each requirement of Rule 23. Comcast also argues that the Third Circuit improperly declined to address the merits of the case at the class certification stage, in contravention of the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, which requires courts to consider “any merits question” bearing on “the propriety of [class] certification under Rules 23(a) and (b).”
The plaintiffs-respondents argue that if a party offers expert evidence to show the feasibility of demonstrating class-wide damages at trial using common proof, the evidence need not prove class-wide damages but need only show that class-wide methods of proving damages will be available at trial. In addition, plaintiffs argue that their expert report met Daubert’s reliability requirements, which, they argue, should be applied liberally at the class certification stage.
Comcast calls upon the Court to apply for the first time its decision in Wal-Mart, requiring a “rigorous analysis” of whether a putative class plaintiff has met the requirements of Rule 23. In our view, this rigorous analysis should not be an excuse for the court to adjudicate the merits of a case at the class certification stage. In particular, because many cases cannot efficiently be pursued as individual actions, a judicial determination of the merits at the class certification stage may effectively prevent plaintiffs from exercising the right to a jury trial of their claims. While the courts play an important gatekeeping role in certifying class actions, an ultimate determination of, for example, whether a plaintiff has proven damages, is properly the role of the jury.
The application of Wal-Mart on these issues, of course, will have a wider impact than the context of antitrust cases. The Court also will hear argument immediately following Comcast, in Amgen, Inc. v. Connecticut Retirement Plans, No. 11–805, which, among other things, involves similar class certification issues in the context of the federal securities laws, and of course, the decisions in these cases will have implications for civil rights and other public interest class actions, as well.
Recovery of Litigation Costs by Prevailing Debt Collectors in Actions Under the Fair Debt Collection Practices Act
On November 7, 2012, the Court will hear argument in Marx v. General Revenue Corp., 11–1175, which raises the question whether a debt collector who is sued under the Fair Debt Collection Practices Act (the FDCPA) for abusive debt collection practices and prevails can recover costs from the plaintiff in the absence of a showing that the plaintiff brought suit in bad faith. Congress passed the FDCPA in 1977 to combat the widespread use of abusive and deceptive debt collection practices. Under the FDCPA, a debt collector may not “engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” To enforce its provisions, the FDCPA provides victims of abusive debt collection practices with a private right of action against debt collectors who violate the FDCPA. A prevailing plaintiff can recover damages, attorneys’ fees, and costs. At the same time, if the defendant debt collector prevails and the court determines that the plaintiff brought the action in bad faith, the court may award the defendant debt collector attorneys’ fees and costs.
In Marx, a debtor sued a debt collector alleging violations of the FDCPA. After a bench trial, the district court found that debt collector had not violated the FDCPA. The court did not find, however, that the debtor brought the suit in bad faith and, accordingly, the debt collector was not entitled to recover attorneys’ fees and costs under the FDCPA. The debt collector nevertheless sought to recover its litigation costs under Federal Rule of Civil Procedure 54(d), permitting a prevailing party to recover litigation costs absent a rule, statute, or court order to the contrary.
The question before the Court in Marx is whether the provision of the FDCPA allowing a prevailing defendant to recovery attorney’s fees and costs of defending a suit brought on bad faith, prohibits a court from granting costs under Rule 54(d) where there has been no finding of bad faith. Section 1692k(a)(3) of the FDCPA provides that “[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” The debtor argues that the plain language of this provision limits awards of fees and costs to prevailing defendants to those cases where the plaintiff acted in bad faith. Thus, because a statute “provides otherwise,” Rule 54(d) does not permit the court to award fees to a prevailing defendant in an FDCPA case absent a determination of bad faith. The district court rejected this argument and awarded the debt collector its costs and the Tenth Circuit affirmed, rejecting the contrary decisions of the majority of circuits that had considered the question.
The debt collector argues that Section 1692k(a)(3) is primarily concerned with an award of attorney’s fees and, thus, should not be read to preclude an award of costs under Rule 54(d). And, to the extent that Section 1692k(a)(3) does concern an award of fees, General Revenue argues that “nothing in the language of the statute purports to exclude Rule 54(d) costs from being taxed and awarded in FDCPA suits.” But Marx correctly points out that this reading would make the reference to costs in the fee shifting provisions of the FDCPA mere surplusage because there would be no purpose of providing for recovery of costs in the event of bad faith, if the prevailing defendant could seek costs under Rule 54(d) irrespective of whether the plaintiff acted in bad faith.
More importantly, the debt collector’s position is in direct conflict with the purpose of the FDCPA. The FDCPA is intended to encourage suits by debtors who are the subject of harassing debt collection practices. To expose financially vulnerable debtors acting in good faith to the risk of having to pay the defendant debt collectors’ litigation costs would discourage good faith claims and frustrate the purpose of the FDCPA.
 131 S.Ct. 2541 (2011).
 408 U.S. 1 (1972).
 See American Civil Liberties Union, v. National Security Agency, 493 F.3d 644 (6th Cir. 2007), cert. denied, 552 U.S. 1179 (2008); Hepting v. AT&T Corp., 539 F.3d 1157, 1158 (9th Cir. 2008); and Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007). Notably, in Al-Haramain, the Ninth Circuit found that a document inadvertently disclosed by the government indicated that the plaintiff’s communications had in fact been monitored but that because the document was protected by the state secrets doctrine, notwithstanding its inadvertent disclosure it could not be relied on to establish standing.
 130 S.Ct. 1473.
 489 U.S. 288.
 466 U.S. 668.
 538 U.S. 500.
 Behrend v. Comcast Corp., 655 F.3d 182, 197 (3d Cir. 2011)
 509 U.S. 579 (1993).
 131 S.Ct. 2541, 2552.
 15 U.S.C. § 1692d.
 Id. § 1692k(a)(3).