Argument report: Choosing between unpalatable outcomes?
on Dec 9, 2012 at 1:13 am
At Wednesday’s oral argument in Chafin v. Chafin, the Justices considered whether an American father’s appeal of an order by a federal district court that allowed his daughter to return to Scotland with his estranged wife is moot. [I previewed the case for this blog earlier in the week.] The debate was energetic, and there was no clear winner. Rather, during both sides’ arguments, Justices expressed concerns about the possible broader implications of their ruling. Moreover, a potentially more appealing alternative advanced by the United States – allowing the child to stay in the United States until an expedited appeal can be resolved – is not available to dispose of this case, because the child at issue has already left the country.
Arguing on behalf of Army Sergeant Jeffrey Chafin, attorney Michael Manely began by telling the Court that the case is not moot because, if the district court’s decision ordering the child’s return were reversed, Sgt. Chafin could obtain relief in three ways: (1) the United States would be the child’s habitual residence; (2) the district court could order the child’s return and vacate its order that he pay $94,000 in fees and costs to Mrs. Chafin; and (3) it could affect proceedings in both the Alabama and Scottish courts. However, Manely was quickly drawn into a discussion of the nitty-gritty of these possibilities, including whether the Alabama courts had actually been constrained by the district court’s decision, whether the child could in fact leave Scotland in any event, when the court there had issued an order prohibiting her from departing, and which country – given the amount of time that the child had spent in Scotland since the district court issued its return order – the Scottish courts would consider the child’s habitual residence, even if the U.S. courts were to determine that the child’s habitual residence had previously been the United States.
After Manely had spent several minutes fielding these inquiries, Justice Sotomayor interjected what was likely intended to be a friendly question, asking him whether there was still a judgment against Sgt. Chafin for $94,000. But even that helpful gesture led to questions about whether Sgt. Chafin could rely on the award of fees and costs to stave off mootness when he hadn’t appealed the order, and whether that order should have been appealed separately. When Manely sat down, it was obvious that, even if the Court had not directly addressed the standard that it should use to determine whether Sgt. Chafin’s case was moot, some Justices – and in particular Justice Ginsburg – were skeptical about whether a ruling in his favor would actually have an effect.
Assistant to the Solicitor General Nicole Saharsky, who argued on behalf of the United States as an amicus in support of Sgt. Chafin, tried to return the Court to the bigger picture, telling it that it didn’t “need to figure out all of the different details of Alabama state law or of custody law under the Scottish proceedings. All the Court needs to decide,” she continued, “is that the appellate court’s decision would make a difference here.” Initially, her efforts were unsuccessful, as Justice Ginsburg pressed her on whether “shuttling the child back and forth” would be contrary to the purposes of the Hague Convention on the Civil Aspects of International Child Abduction, under which Mrs. Chafin had brought her lawsuit seeking the child’s return. Saharasky emphasized that the federal government “share[d] your concerns,” but she suggested that those concerns could be addressed if courts considering Hague Convention cases would grant a stay, and appeals would be expedited, when the traditional four-factor test is met. (Justice Scalia was unmoved by this line of argument, telling Saharsky: “Well, that’s lovely, but there wasn’t a stay here.”)
Eventually, however, the Court did turn to the question of the standard that Sgt. Chafin would need to meet to demonstrate that his case was not moot, with the Chief Justice telling Saharsky that “when you start talking about, well, the Scottish court might do this or the Alabama courts might do this, that . . . sounds pretty speculative and conjectural. He then asked Saharsky to clarify the government’s position, asking “you think it’s enough that if the Court issues an opinion, the Scottish court might do something as a result of that?”
Stephen Cullen argued on behalf of respondent Lynne Chafin. He began by emphasizing the effect (or lack thereof) that a ruling by the Eleventh Circuit reversing the district court’s return order would have on the Scottish proceedings, characterizing “the question presented here” as “what a court could do in this country once the sheriff court in the Hamlet of Airdie is seized with jurisdiction.” Justice Breyer challenged Cullen’s assertion that the decision would have no effect on the Scottish courts: “They are not absolutely bound by it.” But, he asked, “wouldn’t it matter to the Scottish courts, after all, that an American court had decided that the residence was not bound?” Justice Ginsburg, however, chimed in with the answer that Cullen seemed poised to give: it would not be relevant to the Scottish courts because that would be a determination about what the child’s habitual residence had been in the past; the Scottish court’s interest would be a determination about “where she is residing now.” (A question by Justice Sotomayor later in the argument, however, suggested that this point was not necessarily settled there.)
Just as Justice Ginsburg had, with Nicole Saharsky, broached the prospect that a ruling in Sgt. Chafin’s favor could lead to the child being “shuttl[ed] back and forth,” contrary to the Hague Convention’s purposes, now Justice Breyer expressed concern that a ruling in Mrs. Chafin’s favor would prompt district judges to issue stays in virtually all cases so that they do not become moot, requiring the child to stay in the United States until the appeal is resolved – again, contrary to the purposes of the Convention. The Chief Justice joined the fray, adding that if Mrs. Chafin prevails, a parent who obtains a return order would have an incentive to get on the first plane out, “and then you’re home free. That seems to me to be a very unfortunate result.”
Justice Kagan asked relatively few questions, but she did press Cullen on why the case might be moot simply because, if Sgt. Chafin were to prevail, it might be difficult for the district court later to enforce an order requiring the child’s return to the United States. She noted that “it’s often true in international litigation that enforcement is difficult,” and asked Cullen, “why is this different?”
In the end, Justice Ginsburg seemed the most likely vote for Mrs. Chafin, followed by Justice Breyer. Justices Sotomayor appeared to be the most likely vote for Sgt. Chafin, followed by Justice Kagan. The Chief Justice and Justices Kennedy and Alito seemed more sympathetic to Sgt. Chafin; Justice Scalia, less so. But even if the majority of votes seem to line up behind Sgt. Chafin, it was not at all clear how the Court would write an opinion to get there.