This morning, the U.S. Court of Appeals for the Fifth Circuit held en banc arguments. As Chief Judge Edith Jones commented prior to the first argument, it was the first and only time the current crop of judicial clerks will witness en banc arguments; this was the first en banc sitting since May 15, 2007. (By comparison, during the 2000-2001 term, the year during which I clerked for Judge Dennis, the Court sat en banc three different times). Accordingly, not only was this the first time many of the judges’ clerks witnessed an en banc sitting, but it was also the first time for Judge Elrod, Judge Southwick, and Judge Haynes to sit with the en banc Court (indeed, this was Judge Haynes’s first “panel” to sit on since she received her commission to the Court on April 18, 2008).

The en banc panel for each of the day’s three arguments consisted of seventeen judges, though the composition for the first argument was slightly different from that for the final two cases. For all three, the participating judges were Chief Judge Jones and Judges Jolly, Davis, Smith, Wiener, Barksdale, Garza, Benavides, Stewart, Dennis, Clement, Prado, Owen, Elrod, Southwick, and Haynes. For U.S. v. Gomez, Judge Reavley (senior status) sat in place of Judge King, while Judge King took her seat (and Judge Reavley sat out) for In re: Volkswagen of America, Inc. and Moore v. Quarterman. No other senior status judges participated in the en banc arguments.Following is a review of the arguments in each of the three cases. In a separate sidebar post, I will post some non-case-specific observations about this morning’s arguments. Links to briefs for the cases are located at this post.

U.S. v. Gomez (sentencing dispute regarding whether a prior conviction for the California crime of rape by duress is a “forcible sexual offense” for purposes of applying the “crime of violence” enhancement under the Sentencing Guidelines).

Counsel for Gomez urged the Court to not apply a clarifying amendment by the Sentencing Commission scheduled to go into effect in November 2008 that would essentially classify any sexual offense where consent is not given or is legally vitiated as a forcible sexual offense, and also argued that the pending amendment would be more than a mere “clarification,” but would be a substantive change in the law. Gomez’s counsel also argued that the categorical approach to determining whether a crime is a “crime of violence” requires the Court to find a crime to not be a crime of violence if any set of facts would support a conviction for that offense without the use of physical force, and that there were decisions from California courts upholding convictions for rape by duress where physical force was not involved. Finally, Gomez’s counsel urged that the Court apply a “generic, contemporary meaning” of “forcible sexual offense” to require some quantum of physical force extrinsic to the force of the sexual penetration itself.

Judge Garza opened the questioning by asking whether the “forcible sex offense” group of cases might be an anomalous grouping of cases that defied the categorical approach, since they carried so much uncertainty in categorically defining the elements of the crime as a group. Gomez’s counsel responded that the solution to this uncertainty was to focus on the “forcible” in “forcible sex offense,” divorcing it from “sex offense.” Chief Judge Jones then asked why the sex act itself did not include some quantum of physical force, to which Gomez’s counsel replied that the emphasis must be on physical force extrinsic to the sexual act. Gomez’s counsel went on to note that, otherwise, sex crimes such as incest would erroneously fall within the forcible sex offense rubric, to which Chief Judge Jones replied that the consent of the victim (or lack thereof) was the distinction. After an exchange with Judge Reavley regarding the contents of the California indictment and a discussion with Judge Smith regarding the meaning of a guilty plea to a disjunctive charge, Chief Judge Jones asked why the Court could not apply its common sense to determine that the crime at issue would typically involve force, to which Gomez’s counsel replied that instances involving purely psychological coercion could qualify under the statute, and that such crimes should not be classified as forcible sex offenses. Judge Garza then pointed out that the second part of the Guidelines definition specifies “physical” force, while the first part of the definition refers solely to “force,” and asked why the definition would need to specify “physical” force if the physicality were already an element of “force.”

Counsel for the government then presented his argument, urging the Court to rely on the Commission’s pending clarifying amendment, and to find that the “any set of facts” approach to the categorical analysis was wrong since it would allow an outlier case to define the category without regard to the typical case for an offense. Judge Owen asked if this meant that the Court should ignore the one percent of the cases that do not involve extrinsic physical force; government’s counsel said that the Court should consider these cases but not let them define the category to the exclusion of the other ninety-nine percent of the cases. Judge Barksdale asked how the Court could define forcible sex offense consistent with the pending amendments without violating the rule that the sentencing guidelines applicable at the time of the commission of the offense must be applied. Government counsel replied that the Court could hold that forcible sexual offense was always intended to have the meaning in the pending amendment, and that the Court’s prior decisions had simply gotten it wrong, as the pending amendment was merely a clarification of the original guideline.

Judge Jolly then asked what the government would be comfortable with in maintaining the categorical approach. Government counsel answered that the categorical approach could never be done away with because it is too deeply engrained in all circuits’ analytical frameworks, and should not be because the two pillars of sentencing are clarity and uniformity, but that the categorical approach should not include the “any set of facts” approach - i.e., that the categorical analysis should look at the category of cases that normally fall within the statute and not the outliers. Judge Benavides then asked what extrinsic force existed in a sex offense with mere lack of consent and no other physical force, to which government counsel responded that the trespass analogy suggested that the lack of consent created the extrinsic force, as all people should be treated as being free to not be touched when the touch is unwanted, such that the unconsented-to touch is itself the extrinsic force. Judge Clement and Judge Prado then asked questions related to the effect of the 2003 amendments and regarding whether the other circuits also employed the “any set of facts” approach.

In rebuttal, Gomez’s counsel emphasized that rape by duress as a purely psychological coercion is not a mere hypothetical set of facts, but is supported by reported California decisions. Chief Judge Jones then commented, in response to counsel’s suggestion that a sex offense does not intrinsically involve “force,” “Explain that to Oprah.”

In Re: Volkswagen of America, Inc. (regarding whether Court should grant mandamus petition to transfer venue from Marshall division in Eastern District of Texas to Dallas division in Northern District of Texas).

Counsel for Volkswagen opened his argument by emphasizing the factors supporting transfer of venue, that none of the parties resided in the Marshall division, that the accident at issue did not take place in the Marshall division, that none of the witnesses were in the Marshall division, that there were no Volkswagen dealers in the Marshall division, and that the Dallas division was far more convenient on the basis of location of witnesses and location of the accident. Volkswagen’s counsel argued to the Court that the district court’s denial of the motion to transfer venue was a clear abuse of discretion.

Judge Prado asked what the standard of review should be on mandamus; Volkswagen’s counsel emphasized that it was clear abuse of discretion and not just abuse of discretion, which meant that there must be clear legal error or a clear error of judgment by the district court in applying the Pfizer factors. Judge Benavides then noted that he could see how this would support mandating a district court to reconsider the transfer motion using the proper legal factors where it had used the wrong factors before, but not how it would support the appellate court actually mandating the result, the transfer of venue. Volkswagen’s counsel responded that the question is whether the legal error made a difference to the result, an inquiry the Court could engage in, and that the Court had never granted a mandamus to order reconsideration by the district court of its transfer motion.

Judge Jolly asked if the district court had greater discretion to grant a motion to transfer venue, to which Volkswagen’s counsel answered yes, but that the district court did not enjoy as great discretion to deny a venue transfer motion. Judge Davis asked if the Dallas witnesses were not necessarily the key witnesses, if this were to be a battle of experts, then what it mattered as to the trial’s venue. Volkswagen’s counsel answered that the objective facts in the record showed the Dallas witnesses were important, and Chief Judge Jones prompted counsel to agree that this was not just an expert-centric product liability claim but also a fact-witness-dependent comparative negligence claim. Judge King pointed out that the counsel for the third party defendant had indicated that there was no problem with the Marshall venue; Volkswagen’s counsel responded that the question is ultimately whether Dallas was in fact a more convenient forum than Marshall, not what a Marshall-based attorney represented was “not inconvenient.”

Appellate counsel for plaintiffs, Martin Siegel, argued that the best judge of which forum is most convenient is the trial judge who is close to the facts, not appellate courts removed from the facts; that the plaintiffs’ choice of forum must be given weight; and that ultimately Volkswagen was asking the Court to re-weigh the convenience factors for the convenience of two fact witnesses in Dallas, a result not favored for the mandamus remedy and that would not be worth the two years of interlocutory litigation and the inordinate amount of attention given the venue issue in the case.

Judge Smith asked whether the district judge’s experience, or lack thereof, on the bench and in the substantive field involved in the case, should matter to the abuse of discretion analysis applied by the Court. Counsel replied that it should not matter, though the experience of the judge here in administering products liability actions certainly aided the argument that he was a more capable decider on the issue of what was necessary in weighing the convenience factors. In response to a question by Judge Jolly regarding the defect in the panel opinion, counsel argued that the panel opinion’s enunciation of the burden on the movant for venue transfer did not carry with it any protection of an inherent weight to be given to the plaintiffs’ choice of venue. Counsel then agreed with Judge Jolly that the plaintiffs’ venue choice is just one factor to be given the same weight as any of the other Pfizer factors. Judge Jolly explained that the panel saw this set of facts as an extraordinary case worthy of mandamus, not a new formulation that the plaintiffs’ choice of forum is irrelevant; counsel responded that the panel’s holding, that “no factor favors Marshall,” is tantamount to a holding that the plaintiffs’ choice of forum is not a factor to be weighed, since that was a factor that would have favored Marshall.

Chief Judge Jones then pointed out that the district judge had issued inconsistent opinions in other cases regarding whether Marshall is an inconvenient forum when Dallas parties and witnesses were involved, and asked whether this inconsistency was of no moment in analyzing for clear abuse of discretion. Counsel responded that it was all a part of the district court’s discretion within a “melange of factors” considered by the district court that are different in every case. Then, in response to a question by Judge Jolly as to what case would be mandamus-worthy, counsel asserted that there was no support in the record for a finding that the Dallas witnesses were “key witnesses” such that their convenience must be given greater weight than the plaintiffs’ choice of forum. Judge Smith asked whether, if the district judge merely listed the proper Pfizer factors, plaintiffs’ counsel would assert that mandamus was never justified because the appellate court should not go behind and re-weigh. Counsel responded that the Court could engage in re-weighing when reviewing for error, but not when considering mandamus, and at that point it would look to whether the denial of transfer had prejudiced the party’s ability to obtain a fair trial. Judge Jolly then pointed out that the “fair trial” formulation was from forum non conveniens cases, not venue transfer cases, to which counsel replied the same substantive standards should apply. Judge Owen then asked why this “fair trial” inquiry should be made, since it is not one of the 1404(a) standards and would not have had a developed record at the district court. Judge Jolly also asked if that meant that plaintiffs’ counsel believed they would not receive a fair trial in Dallas. Counsel responded that it wasn’t the plaintiffs’ burden to prove lack of a fair trial, but the movant’s burden on mandamus (not in the district court). Judge Jolly then indicated that he agreed with plaintiffs’ counsel that mandamus should be kept very narrow.

Judge Davis then asked what the record indicated as to the whether the Dallas witnesses believed the Marshall venue to be burdensome, and counsel indicated that there was no indication in the record as to the witnesses’ view of the burden or as to whether they were even “key” witnesses. Judge Clement then asked whether the plaintiffs’ choice of the Marshall forum was based on a “reasonable preference.” Counsel replied that “reasonable preference” was not one of the § 1391 factors, but that plaintiffs based their preference on the fact that they had lived in the Eastern District of Texas at the time of the accident, and on the experience of the Marshall division in efficiently handling products liability litigation. Counsel also pointed out that, in all fairness, Volkswagen’s decision to choose Dallas as the transferee venue was just as much a forum-shopping exercise as the plaintiffs’ choice of Marshall.

On rebuttal, Judge Jolly asked Volkswagen’s counsel whether it was asking the appellate court to re-weigh the district court’s application of the factors. Counsel responded that it was not asking the Court to re-weigh, but to look to the decisionmaking process of the district judge.

Moore v. Quarterman (regarding whether habeas petitioner had exhausted state remedies regarding Atkins claim).

Counsel for the respondent argued that the petitioner should have attached to his revised habeas petition the materials regarding his Atkins claim that established a prima facie case of mental retardation, as such materials were already contained in the record and would have required no further investigation. In response to a question by Judge Smith, counsel argued that petitioner’s statement of the Atkins claim only satisfied legal exhaustion, at best, and not factual exhaustion. Judge Wiener asked if the government was mixing the quality of the proof up with the standard for what had to be included in the December 2002 petition’s statement of the claim. Counsel replied that the petition did not state a prima facie case under Atkins, that under the applicable Texas pleading standard a claim had not been made.

Judge Dennis then asked counsel to explain why a prima facie case had not been made out when, in December 2002, Texas’s pleading rules did not require attachment of the documentation to the claim that those rules subsequently arguably required. Chief Judge Jones then asked if the state court’s denial of relief for insufficient facts be treated as the remedy not being exhausted, to which counsel replied affirmatively; Chief Judge Jones then asked if the federal court could not reach the issue without a showing of cause and prejudice, and why the establishment of a new substantive, retroactive right in Atkins following the initial state petition was not cause and prejudice. Counsel started to respond that his review of all of the interim opinions showed that the Atkins right was not out of the blue, nor were the elements required to be pled to make the claim, when Judge Dennis pointed out that the petitioner did not have access to the resources to conduct the same sort of research at the time of his December 2002 petition.

Counsel for the petitioner argued that, in December 2002, there was still a learning curve in figuring out what was necessary to be included in the statement of an Atkins claim, and that petitioner’s December 2002 filing satisfied what was required in Texas at the time. Chief Judge Jones asked whether the petitioner’s allegations in the December 2002 petition regarding mental retardation had all been true, and opined that it was troubling to consider granting habeas relief on the basis of factual allegations that did not meet Rule 11 muster. Chief Judge Jones then pointed out that mental retardation had long been an issue under Penry, to which Judge Wiener pointed out Penry had been in the context of mitigation, while Atkins clearly established a new right of absolute protection from execution for those who were mentally retarded.

Judge Garza then expressed that he wondered what to do with the fact that, if the petitioner did adequately state an Atkins claim in his December 2002 petition, and the state court denied relief on the basis of insufficient factual development, then the state court decision was not one of lack of exhaustion but something more decisive, to which Judge Benavides interjected that then there would be no question of exhaustion and the federal petition was properly before the federal court. Chief Judge Jones then asked if that meant that the development of a de novo record in the federal habeas proceeding was prohibited. Counsel answered that there was not a de novo record developed, but that the extensive state court record was merely amplified, permissibly, pursuant to Morris. Chief Judge Jones then asked whether Morris should be applicable since it was a successive habeas case, but Judge King noted that Morris could be used to support the premise that the record was susceptible of being amplified in the federal proceeding. Counsel then agreed with Judge Dennis’s question whether the state record could be enhanced in the federal habeas proceeding “to the hilt” as the mental retardation standard was developed and refined.

Chief Judge Jones then asked if the state court’s ruling denying relief for insufficient facts was a procedural ruling entitled to deference, to which counsel replied that it should not be deferred to if the procedure was inadequate. Then both counsel agreed, in response to questions by Chief Judge Jones and Judge Owen, that the Court’s decision in this case would likely not have widespread ramifications.