text:
Jan. 4, 1968, Opinion Filed Feb. 9, 1968.
Denison Ray, Elliott C. Lichtman, Jackson, Miss., for appellants.
Will S. Wells, Asst. Atty. Gen., Joe T. Patterson, Atty. Gen. of Mississippi, Jackson, Mississippi, for appellees.
Before JOHN R. BROWN, Chief Judge, TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON and CLAYTON, Circuit Judges.
The Court on its own motion has ordered that this case be reheard by reargument argument before the Court en banc. Since it was argued before a panel of this Court made up of Senior Judge Rives, and Judges Goldberg and Ainsworth but no decision has been announced by that panel, the Court recognized that there might be some question as to whether Judge Rives is 'competent' to sit as a member of the Court, under 28 U.S.C.A. 46(c).
In response to the inquiry directed by the Court to counsel,1 one of the parties, with deference has raised the question and it is necessarily presented to the Court for judicial determination. As requested by the Court the parties submitted written briefs to the Court and each party having waived oral argument, the Court has taken the matter under consideration.
For reasons which we shall set forth in an opinion to be hereafter filed, the Court is of the clear view that such a retired senior judge is competent and therefore Judge Rives is competent to sit in the rehearing en banc now scheduled for January 10-11, 1968. Judge Rives will be a member of the Court hearing and determining the case en banc.
The question presented for decision is whether a Senior Circuit Judge who sat on a three-judge panel of this Court in the original hearing of a case in which no decision was rendered or opinion announced prior to the Court's order setting the case down for rehearing en banc is eligible to participate in the en banc determination of that case. Since the issue is squarely presented in the present case1A and because of its importance to sound judicial administration, this Court on its own motion advised counsel for both parties that some difference of opinion might exist as to whether such a Judge would indeed be 'competent' under 28 U.S.C.A. 46(c). / 2/ One of the parties in response to the Court's invitation ahving raised the question, it is now properly before us for consideration.
To assure that the Court hearing the merits of the case was properly constituted and the parties advised thereof in advance of submission, the Court3 announced its decision that such a Senior Judge is 'competent' and constitutes a member of the Court.4 But since this matter arises with some degree of frequency,5 poses problems of court administration to both the Court and litigants, and, more important, goes to the very vitals of just what constitutes the 'Court,' we think our determination warrants an exposition of our reasons.
With Senior Judges cutting such a big figure in this Court's effort to keep up with its exploding docket,6 see Shafroth, note 6 supra, the situation will recur even more frequently in the future.
On the one hand it is urged that a 'hearing' necessarily involves a determination of the case by the original three-judge panel. The consequence of this contention would be that a Senior Circuit Judge would not be eligible to sit on an en banc hearing unless the case had been decided and the judgment or opinion of the panel announced. On the other hand it is asserted that such a reading of the statute is unduly restrictive. And because such a reading would deprive the Court sitting en banc of the the work, research, study and deliberation done earlier by the Senior Circuit Judge during the pendency of the case before the panel, it is not reasonable to suppose Congress desired or intended any such wasteful consequences.
Although it was introduced in the Eighty-Sixth Congress (1960),12 the bill was not enacted (note 7 supra) until 1963 (Eighty-Eighth Congress),13 subsequent to the American-Foreign decision. The legislative history is not too instructive. It does take note of the Supreme Court's American-Foreign decision, but the Supreme Court had earlier taken note of the proposed legislation. Consequently as a matter of chronology it is a mistake to assume that the Act was a mere response to, or to be read as a solution for, the unique situation of that precise case. The purpose of the bill, as stated in the legislative history, was 'to permit (a Senior Circuit Judge) to sit on a rehearing in banc of a case where he participated at the original hearing thereof.' 1963 U.S.C. Cong. & Ad. News 1105, 1106. The report also states the Committee's conclusion that a Judge 'who has sat on an issue in an appellate hearing on which a rehearing has been ordered should be a member of the court for rehearing purposes.' Id. at 1106. Although the legislative history is certainly not conclusive on the issue presented here, we perceive no Congressional intent to limit severely the participation of retired Judges in en banc hearings by putting any such narrow interpretation on the term 'hearing'. As did the Committee report, we think Congress spoke in broad general language to include within 'an appellate hearing' the submission to a panel for a judicial determination by it, whether or not culminating in a judgment (or opinion).
There are many considerations which dictate why the statute should be given a reading expansive enough to cover the situation present here in favor of allowing a Senior Circuit Judge to sit with the Court en banc. In the forefront is the benefit which the entire Court obtains from the prior work, research, study and deliberation done by a Senior Judge during his (and his two colleague's) initial consideration of the case.14 Additionally, this fits neatly into the underlying basic structure of the Courts of Appeals. Their work is ordinarily to be-- and today it must be15 -- done by three-judge panels. The decision of the three-judge panel should therefore be magnified, not disparaged or diminished16 as might be the case if, from a narrow construction of the statute (note 7 supra), litigants would know that the Senior Judge's vote counted but only tentatively-- only so long as en banc was not ordered.
Perhaps the best reason for this expansive reading is the total absence of any reason for distinguishing between a case in which a decision has been announced and one in which en banc is ordered prior to any decision. To the contrary, there are positive reasons against such distinction. The en banc device is essentially court controlled and court initiated (see note 23 infra). Frequently it is the travail of constructing an opinion after the routine submission17 of a case to a three-judge panel that the panel realizes for the first time either the extraordinary importance of the question, the likelihood of conflict with earlier decisions or the trend of those decisions or the pendency of like cases before different panels with divided views.
There are two main ways this can be handled. An opinion can be announced with an undisclosed likelihood that the case will be put en banc, or the case can be ordered en banc without decision.18 Where the panel entertains such doubt or concern it would often be substantively bad for a decision to be announced for the very act of writing or concurring in the opinion is a judgment amounting to-- at least in the eyes of litigants-- a pre-judgment of the soon-to-be ordered en banc. To this substantive defect should be added the factors bearing on the Judges as persons. The determination of the panel (or its majority) to request a pre-decision en banc poll (see note 18 supra and note 23 infra) whether consciously or not, would parhaps be affected by the awareness that such determination is 'voting a Judge off the case'-- a result which, although bad, is one which can be avoided readily by announcing a decision and incurring all the defects of that route. Worse, many of those same factors would be at work on the non-panel active Judges in their vote on the poll, especially if the poll were requested by a panel majority of two active judges over the dissenting opposition of the Senior Judge. This opens up a whole array of influences which for nearly all cases in the last termination of whether the case is enbancworthy.
1A This is one of the six cases heard en banc at Houston, Texas, January 10-11, 1968. The cases were: No. 23841, Palmer v. Thompson, 391 F.2d 324; No. 23125. Steele v. Taft; No. 24259, Miller v. Amusement Enterprises, Inc., 391 F.2d 86 (April 8, 1968); No. 24314, Allen v. Johnson, 391 F.2d 527; No. 23813, Luna v. Beto, 391 F.2d 329; No. 23963, United States v. Cocke.
'In (Allen v. Johnson) now set for en banc argument, Judge Rives, a Senior Circuit Judge, was a member of the Court hearing the arguments. As no opinion has been rendered by that panel (Judges Rives, Goldberg and Ainsworth), there may be some question as to whether Judge Rives is 'competent' to sit as a member of the Court hearing the reargument en banc as provided for in 28 USCA 46(c). See note*, Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34 at 37 (en banc); and United States v. American-Foreign Steamship Corp., 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491.
'(5) The status of retired circuit and district judges.-- The Committees reported that various questions had arisen as to the status of retired circuit and district judges with respect to their participation in certain activities of their former courts when they are assigned to active duty therein. These include the participation of retired circuit and district judges in the appointment of officers of the court and in the promulgation of court rules and, in the case of retired circuit judges, mambership on the judicial council of the circuit and of the court of appeals sitting in banc. It was the view of the Committees that under the statute only judges who are in 'regular active service', that is, those who have hot retired under Section 371(b) or 372(a), Title 28, United States Code, are the judges in 'active service' to which the statutes refer. However, the Committees thought it proper to permit a retired circuit judge to be a member of the court of appeals sitting in banc in the rehearing of a case in which he has sat, by assignment, in the panel of the court which heard the case originally. The Conference agreed and thereupon approved the following draft of a bill, presented by the Committees, clarifying the statute and incorporating the change suggested.' (Here followed proposed bill in present form (note 7 supra)).

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ADVANCED MICRO DEVICES, INC., Petitioner-Appellant, v. INTEL CORPORATION, Respondent-Appellee.
Before HAWKINS and SILVERMAN, Circuit Judges, and RESTANI,* Judge. Patrick Lynch,O'Melveny & Myers, Los Angeles, CA, for petitioner-appellant. Robert Cooper, Gibson, Dunn & Crutcher, Los Angeles, CA, for respondent-appellee.
In a question of first impression with respect to the European Community, we must determine the scope and reach of 28 U.S.C. § 1782,1 which permits domestic discovery for use in foreign proceedings. We face two questions: (1) whether the proceeding for which discovery is sought qualifies as “foreign or international tribunal”; and (2) if so, whether Section 1782 requires a showing that the information sought would be discoverable or admissible in that proceeding. Because we conclude that the proceeding for which the discovery at issue is sought meets the statutory definition, we reverse the district court. As the district court will now need to deal with the merits of the discovery request, we determine that Section 1782 does not impose a threshold requirement that the material also be discoverable in the foreign court.
Advanced Micro Devices, Inc. (“AMD”) and Intel Corporation (“Intel”) are worldwide competitors in the microprocessor industry. Believing that Intel was abusing its dominant market position in the European Common Market, AMD filed a complaint with the Directorate General-Competition (“Directorate”) of the European Commission (“EC”). AMD's complaint, now in the preliminary investigative stage, alleges that Intel's actions violate Article 82 of the Treaty establishing the EC (“the EC Treaty”). To support its complaint, AMD sought discovery under Section 1782, asking that Intel produce documents and transcripts of testimony from a proceeding in another district court, Intergraph Corp. v. Intel Corp., No. CV 97-N-3023 (N.D.Ala.). Intel objected, contending that the matter before the Directorate was not a “proceeding in a foreign or international tribunal” within the meaning of Section 1782. The district court agreed with Intel and this timely appeal, which we advanced for argument, followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
Questions of statutory interpretation are subject to de novo review while the district court's application of Section 1782 to the facts is reviewed for an abuse of discretion. United States v. Sealed 1, Letter of Request for Legal Assistance from the Deputy Prosecutor Gen. of the Russian Fed., 235 F.3d 1200, 1203, 1206 (9th Cir.2000).
AMD's complaint was filed under Article 82 of the EC Treaty and Article 3(2)(b) of EC Council Regulation. Article 82 generally prohibits “abuse by one or more undertakings of a dominant position within the common market.” The Directorate is a sub-unit of the EC, authorized to enforce Article 82 by conducting investigations of alleged infringement, to propose curative measures in published decisions, and to impose fines and penalties. EC Treaty Art. 85.
Upon receipt of a complaint, the Directorate first conducts a preliminary investigation. It may gather information on its own and provide the complainant with an opportunity to support its allegations. This initial investigation is not considered an adversarial proceeding. AKZO Chemie BV v. Commission, 1 C.M.L.R. 231, 248 (E.C.J.1986). The Directorate also has the authority to seek information directly from the alleged infringer and may punish a failure to provide information with fines and penalties. Council Regulation 17/64, arts. 11, 14. Within the EC, the Directorate also has the authority to enter and search an alleged infringer's business. Council Regulation 17/64, arts. 15(1)(b), 16(1)(c).
Completion of the Directorate's preliminary investigation results in a decision whether to pursue the complaint. If the decision is not to proceed, the complainant is advised and given an opportunity to submit further information in support of the allegations. Koelman v. E.C. Comm'n, 4 C.M.L.R. 636, 649 (Ct. of First Instance 1996). The EC then decides whether to formally proceed in a final written decision. A decision not to proceed is subject to review by the Court of First Instance and ultimately by the Court of Justice for the European Communities (“Court of Justice”), the court of last resort for EC matters. Stork Amsterdam BV v. E.C. Comm'n, 5 C.M.L.R. 31, 42(Ct. of First Instance 2000).
A decision to proceed with the complaint operates on a slightly different track. If the EC makes a preliminary determination that infringement may have occurred, it serves a statement of objections on the alleged infringer and appoints an independent hearing officer to conduct a hearing. Commission Decision of 23 May 2001, 2001/462/EC; Council Regulation 17/64, art. 19; Commission Regulation 2842/98, arts. 10-14. The hearing officer then presents conclusions to the Directorate who, in turn, makes a recommendation to the EC on how to proceed. A decision by the EC to dismiss, like a Directorate decision not to proceed after a preliminary investigation, is subject to review by the Court of First Instance. Commission Decision of 23 May 2001, arts. 13-16. If the EC decides to proceed with the complaint, a preliminary decision is drafted and forwarded to the EC Advisory Committee, which consists of representatives of the EC member states. The Advisory Committee drafts an opinion for the EC which, if adopted, becomes a final enforceable decision within the European Community. Id.; Hasselblad v. Orbison,  Q.B. 475, 496 (1984).
Intel argues that the process for which AMD seeks discovery is purely administrative in nature, and, at least with respect to a recommendation to proceed to a complaint, preliminary to a non-judicial proceeding. In the past, we have rejected applications for discovery where the “proceeding” was a commission of inquiry authorized to investigate, report and make recommendations to a non-judicial body. In re Letters of Request to Examine Witnesses from Court of Queen's Bench for Manitoba, Canada, 488 F.2d 511, 512(9th Cir.1973). But the Directorate makes its recommendations to the EC-a body authorized to enforce the EC Treaty with written, binding decisions, enforceable through fines and penalties. EC decisions are appealable to the Court of First Instance and then to the Court of Justice. Thus, the proceeding for which discovery is sought is, at minimum, one leading to quasi-judicial proceedings.
Nor need the proceedings be imminent, as Congress made clear through the elimination of the requirement that the proceeding be “pending.” United States v. Sealed 1, 235 F.3d at 1205. Here the Directorate's investigation will lead to a decision whether to proceed. A decision not to go forward would be appealable to the Court of First Instance, thus “leading to a judicial proceeding.” A decision to proceed with a complaint would lead to hearings that are at least quasi-judicial in nature and then to an enforceable, judicially-reviewable decision.
Harkening to our own separation of powers traditions, Intel argues that the EC is not a tribunal because the distinction between prosecutor and decision-maker is blurred, if not non-existent. This might be of concern if the EC had a discernable institutional bias toward a particular outcome of the initial investigative process. In re Letters Rogatory Issued by the Dir. of Inspection of India, 385 F.2d 1017, 1020(2d Cir.1967) (Income Tax Officer with sole responsibility to make and then evaluate government's argument not a “tribunal” under § 1782). The EC process, however, takes care to permit both complainant and alleged infringer an opportunity for input to the eventual recommendation and inserts an independent entity-the EC Advisory Committee-between the Directorate's recommendation that a formal complaint be issued and the EC's decision to file a final enforceable decision.
In sum, we agree that the EC is an administrative body and that the investigation being conducted by its Directorate is related to a quasi-judicial or judicial proceeding. AMD has the right to petition the EC to stop what it believes is conduct that violates the EC Treaty, to present evidence it believes supports its allegations, to have the EC evaluate what it presents and to have the resulting action (or inaction) reviewed by the European courts. Although preliminary, the process qualifies as a “proceeding before a tribunal” within the meaning of 28 U.S.C. § 1782.
We have previously rejected a requirement regarding admissibility in the foreign tribunal. In re Request for Judicial Assistance from Seoul Dist. Criminal Court, 555 F.2d 720, 723 (9th Cir.1977). For good and sound policy reasons, we now reject such a requirement with respect to discoverability, be the request from a private party or foreign tribunal. We find nothing in the plain language or legislative history of Section 1782, including its 1964 and 1996 amendments, to require a threshold showing on the party seeking discovery that what is sought be discoverable in the foreign proceeding. Bayer, 146 F.3d at 193; Euromepa, 154 F.3d at 28; In re Application of Gianoli Aldunate, 3 F.3d 54, 59 (2d Cir.1993). Had Congress wished to impose such a requirement on parties, it could have easily done so. Judge McKeown's analysis with respect to any requirement that the foreign proceedings be “imminent” is persuasive in this regard. See United States v. Sealed 1, 235 F.3d at 1205.
Finally, allowance of liberal discovery seems entirely consistent with the twin aims of Section 1782: providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to our courts. Malev, 964 F.2d at 100.
The district court's determination that the proceeding for which AMD seeks discovery does not qualify under 28 U.S.C. § 1782 is reversed.4 Because we also determine that there is no requirement that AMD show that what is sought would be discoverable in the proceedings before the European Commission, the district court may proceed to consider AMD's request on the merits.
1. The statute provides:§ 1782 Assistance to foreign and international tribunals and to litigants before such tribunals(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.28 U.S.C. § 1782.
2. The Senate stated:The word “tribunal” is used to make it clear that assistance is not confined to proceedings before conventional courts. For example, it is intended that the court have discretion to grant assistance when proceedings are pending before investigating magistrates in foreign countries․ In view of the constant growth of administrative and quasi-judicial proceedings all over the world, the necessity for obtaining evidence in the United States may be as impelling before a foreign administrative tribunal or quasi-judicial agency as in proceedings before a conventional foreign court. Subsection (a) therefore provides the possibility of U.S. judicial assistance in connection with all such proceedings. Finally, the assistance made available by subsection (a) is also extended to international tribunals and litigants before such tribunals. The assistance thus made available replaces, and eliminates the undesirable limitations of, the assistance extended by sections 270 through 270g of title 22, United States Code, which are proposed to be repealed.
3. The topic has drawn considerable commentary in the academy, with most commentators preferring the Euromepa approach. Hans Smit, Recent Developments in International Litigation, 35 S. Tex. L.Rev. 215, 234-37 (1994); Peter Metis, International Judicial Assistance: Does 28 U.S.C. § 1782 Contain an Explicit Discoverability Requirement?, 18 Fordham Int'l L.J. 332, 360-67 (1994); Steven Saraisky, How to Construe Section 1782: A Textual Prescription to Restore the Judge's Discretion, 61 U. Chi. L.Rev. 1127, 1148-50 (1994); Walker Sanzone, Extra-Statutory Discovery Requirements: Violating the Twin Purposes of 28 U.S.C. Section 1782, 29 Vand. J. Transnat'l L. 117, 147-50 (1996).
4. Obviously, district court opinions to the contrary are expressly overruled. See, e.g., Application for Assistance in a Foreign Proceeding, 147 F.R.D. 223 (C.D.Calif.1993).
MICHAEL DALY HAWKINS, Circuit Judge.


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Below are the summaries of this week’s civil decisions of the Court of Appeal for Ontario.
In perhaps the final round in the Yaiguaje v. Chevron Corporation case, the Ecuadorian plaintiffs, who hold a judgment of approximately $9.5 billion from an Ecuadorian court against Chevron Corporation, appeal from the dismissal, by way of summary judgment, of their enforcement proceedings against Chevon Canada, a seven degree removed subsidiary of Chevron Corporation. Chevron Corporation and Chevron Canada successfully moved for security for costs of the appeal, including the costs of the motion for summary judgment in the court below, of over $1 million. It will be interesting to see whether this spells the end of this case or whether the security is posted.
In Keatley Surveying Ltd. v. Teranet Inc., the Court of Appeal upheld the dismissal of the class action by surveyors in Ontario, who alleged that Teranet Inc. infringed their copyright by digitizing, storing, and copying plans of survey created by the surveyors and registered or deposited in the provincial registry offices. The Court affirmed the lower court decision by holding that the province owns the copyright in the plans of survey deposited with the registry offices as a result of the combined effect of section 12 of the Copyright Act and the provincial legislation governing the land registry system. There was therefore no copyright breach arising from the fact that users of Teranet can access and make copies of plans of survey.
The Court released two decisions dealing with Rule 21.01. In Ridel v. Goldberg, the Court held that since discoverability issues generally involve questions of mixed fact and law, Rule 21.01(1)(a) will rarely be the appropriate avenue for determining limitation period issues. In Harris v. Ontario (Community Safety & Correctional Services), the Court held that the claim did not plead the issue that was decided on the Rule 21.01 motion. In this case, the issue decided was whether claims for legal expenses incurred in connection with a coroner’s inquest are recoverable at law in a wrongful death action brought pursuant to s. 61(1) of the Family Law Act. The court held that the motion judge should not have answered the question (the judge held such costs were recoverable as damages), given that such damages were not pleaded in the statement of claim.
Finally, Justice Brown, in Chambers, was uncertain about his jurisdiction to grant a charging order to secure solicitor’s fees with respect to not only work performed on the appeal before the Court, but with respect to the work performed on the proceedings before the Superior Court. His Honour adjourned the motion to a panel of the Court of Appeal, which will soon decide the question.
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This action was commenced more than two years after the Ridels (the appellants) obtained a trial judgment against e3m Investments Inc. for negligence, breach of contract and breach of fiduciary duty in relation to their investment accounts, but within two years of the dismissal of e3m’s appeal from that judgment. In the action against e3m, the trial judge found that the respondent Robert Goldberg, the president, CEO and sole director of e3m, had abdicated his responsibility to supervise the employee who handled the appellants’ accounts. After e3m’s appeal was dismissed, e3m made an assignment in bankruptcy. The appellants then obtained an order pursuant to s. 38 of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, authorizing the assignment to them of the trustee’s cause of action for damages incurred by e3m as a result of the respondent’s breach of duties of care and supervision. They then commenced this action.
The focus of the appellants’ argument before the motion judge related to the relevance of e3m’s appeal to the calculation of the limitation period. They argued that until the appeal was decided, it would not have been appropriate for them to bring this action. Before the Court of Appeal however, the appellants shifted ground and argued that it could not be said that e3m could or should have considered an action against Goldberg, e3m’s own directing mind, until after e3m’s bankruptcy.
Did the motion judge err in ruling on a Rule 21.01(1)(a) motion that the action was barred by the two-year limitation period?
Yes. The Court of Appeal was of the view that it was not appropriate for the court to rule on the issues raised by the parties on the limited record that was before it. This was a Rule 21.01(1)(a) motion for which the court only had the pleadings before it. There was no evidence before the court concerning what has become the main focus of the appellants’ submission, namely, the relationship between e3m and Goldberg and the control he is alleged to have exercised over e3m in relation to the claim advanced by the appellants.
In Salewski v. Lalonde, 2017 ONCA 515, the Court of Appeal observed, at para. 45, that as the discoverability issue is one of mixed fact and law, there may well be no circumstance “in which a limitation issue under the Act can properly be determined under Rule 21.01(1)(a) unless pleadings are closed and it is clear that the facts are undisputed.” The Court of Appeal was of the view that a more complete record would be required to permit the court to determine the issues raised by the parties on this appeal. Therefore, this order does not purport to determine the limitation period issue. Instead, that issue may be determined in the normal course, and on a proper factual basis, in these proceedings.
The appellants (the “Ecuadorian plaintiffs”) hold a judgment of approximately $9.5 billion from an Ecuadorian court (the “Ecuadorian judgment”) against the respondent, Chevron Corporation. The Ecuadorian plaintiffs seek to enforce that judgment in Ontario against Chevron and its seventh level, indirect subsidiary, Chevron Canada.
Chevron and Chevron Canada initially contested the jurisdiction of Ontario courts to enforce the Ecuadorian judgment. The matter reached the Supreme Court of Canada, which affirmed Ontario’s jurisdiction over the Ecuadorian plaintiffs’ action: Chevron Corp v. Yaiguaje, 2015 SCC 42,  3 S.C.R. 69.
Following the Supreme Court’s ruling, Chevron and Chevron Canada brought motions for summary judgment before the Ontario Superior Court. Both motions sought the dismissal of the Ecuadorian plaintiffs’ claims against Chevron Canada, on the basis of its separate corporate personality from Chevron. The Ecuadorian plaintiffs brought a cross-motion for summary judgment, seeking a declaration that Chevron Canada’s assets were eligible to satisfy Chevron Corp.’s judgment debt. The Ecuadorian plaintiffs also brought a motion to add Chevron Canada Capital Company (“CCCC”) as a defendant to their action, and to strike the defences in Chevron Corp.’s statement of defence.
The motion judge granted the respondent corporations’ motion for summary judgment. He dismissed the Ecuadorian plaintiffs’ cross-motion and motion to add CCCC as a defendant, and partially granted their motion to strike. The Ecuadorian plaintiffs appealed all four decisions.
The respondents bring a motion for an order for security for costs totaling $1,022,951.47; $160,000 for the appeal and the rest for the proceedings below. They submit that such an order is appropriate as the Ecuadorian plaintiffs are not ordinarily resident in Ontario, have not provided evidence of impecuniosity, and have not established a good chance of success in the pending appeal. The Ecuadorian plaintiffs submit that security for costs should not be awarded given the merits of their appeal and Chevron’s delay in bringing this motion. They also urge this court to adopt a new approach to the law of security for costs, one that displays sensitivity to the principle of international comity and the similarity of this proceeding to a class action.
(1) Are the respondents entitled to an order for security for costs?
(1) Yes. There is no question that the Ecuadorian plaintiffs are normally resident outside of Ontario, thus “triggering the enquiry” into security for costs. The Ecuadorian plaintiffs have put forward no evidence to demonstrate that they are impecunious. Since the Ecuadorian plaintiffs cannot be deemed impecunious, they must demonstrate that their appeal has something akin to a “good chance of success” to resist the motion.
To do so, they would have to establish a proper basis for execution against Chevron Canada under the Execution Act, or provide “some compelling reason for lifting the corporate veil”. So far they have done neither.
On the first branch, the motion judge concluded that Chevron Canada was not completely dominated and controlled by Chevron, but rather that it had a typical parent/subsidiary relationship. Moreover, in coming to this conclusion, the motion judge reasonably relied upon and adopted the findings of Brown J. (who ruled on the issue of jurisdiction earlier in this litigation). These findings include that Chevron Canada initiates its own plans and budgets, funds its day to day operations and some recent capital expenditures, and files its own tax returns and corporate statements. Brown J. also noted that the relevant corporate structure has been in place since 1966, and was clearly not instituted in order to avoid the Ecuadorian judgment.
Finally, the Ecuadorian plaintiffs seek to resist the motion by relying on an alleged “new approach” endorsed by the Supreme Court for recognition and enforcement actions. Epstein JA does not read the Chevron decision as establishing any such new approach. The case dealt only with jurisdiction. It does not hold that plaintiffs seeking to enforce a foreign judgment should be treated differently than any other litigant in our courts. The just order in this case is therefore one for security for costs.
Accordingly, Chevron Canada is entitled to security for costs of the appeal in the amount of $50,000 and for the proceedings below in the amount of $541,335.14. Chevron is entitled to security for costs of the appeal in the amount of $30,000 and for the proceedings below in the amount of $321, 616.33.
C Pilgrim, for the respondent C.S.D.
The appellant (the “CAS”) moved for summary judgment, declaring A.E. a ward of the Crown. Kirkland J., of the Ontario Court of Justice allowed the motion. The respondent then appealed the order of Kirkland J. to the Superior Court of Justice where Tranmer J. allowed the appeal, set aside the order of Kirkland J., and directed that “the matter shall proceed to trial”.
The appellant now appealed the decision of Tranmer J. to the Court of Appeal.
(1) Does the Court of Appeal have jurisdiction to set aside Tranmer J.’s decision that the matter shall proceed to trial?
(1) No. An order of a Superior Court judge refusing to grant summary judgment and directing that the matter proceed to trial is an interlocutory and not a final order. The fact that the order set aside by the Superior Court judge was a final order is not determinative of the proper characterization of the order made by the Superior Court judge. The Court of Appeal must make its own assessment of the nature of the order. There is no appeal from the order of Tranmer J. to the Court of Appeal. An appeal lies to the Divisional Court only with leave of that court.
On a Rule 21.01 motion the respondents asked the motion judge to answer the question of whether claims for legal expenses incurred in connection with the inquest conducted into the death of a family member are potentially recoverable in law pursuant to s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3. The motion judge ruled that claims for legal expenses incurred in connection with the inquest conducted into the death of the deceased are potentially recoverable in law pursuant to subsection 61(1) of the FLA. The pleadings did not raise the issue of legal expenses connected to the inquest at issue. The appellants appeal this ruling on the ground that Rule 21.01 did not give the judge the authority to answer this question.
Did the motion judge err in answering the question of law posed by the respondents pursuant to Rule 21.01?
Yes. Rule 21.01 is available only to answer “questions of law raised by the pleadings.” The pleadings said nothing about a coroner’s inquest or any legal expenses incurred by the respondents in connection with the inquest. The motion judge could not properly answer the question raised on the motion without the actual pleadings raising that question of law.
The appellant, Keatley Surveying Ltd., brought a class action on behalf of all surveyors in Ontario who registered or deposited plans of survey in the provincial land registry offices. The appellant claimed that the respondent, Teranet Inc., infringed on surveyors’ copyright by digitizing, storing, and copying plans of survey created by surveyors and registered or deposited in the electronic land registration and administration system (ELRS). The respondent is a service provider that operates the ELRS, retained by the province.
The motion judge held in favour of the respondent, granted Teranet’s motion and dismissed the action. He held that the plans of survey registered or deposited under the ELRS belong to the province of Ontario, and not to the surveyor who created the plan.
The appellant appeals the dismissal of the action, arguing that the motion judge erred in holding that land surveyors do not maintain copyright in the plans of survey deposited or registered in the ELRS. The appellant further challenges the constitutionality of the provincial legislation that the respondent relies on to support its position that the copyright in the plans of survey deposited and registered in the ELRS belongs to the province.
The respondent submits that the appellant should not be allowed to raise constitutional issues for the first time on appeal, and in any event, that there is no merit in the vires argument. The respondent renews arguments made in respect of the other common issues by way of cross-appeal. The Attorney General of Ontario intervenes and supports the respondent’s position.
1. Does the copyright in the plans of survey belong to the province of Ontario, pursuant to s. 12 of the Copyright Act, as a result of the registration and/or deposit of those plans of survey in the Ontario Land Registry Office?
2. Can the appellant raise the constitutional issue for the first time on appeal, and if so, is there merit in the vires argument?
Holding: Appeal and cross-appeal dismissed.
1. Yes. The province owns the copyright in the plans of survey registered with the Land Registry Office. Teranet manages the ELRS for the province pursuant to statutory authority under the Electronic Land Registration Services Act and to the terms of licensing agreements with the province. In accordance with those agreements, the province retains all rights, title, and interest, including intellectual property rights, to the data used in ELRS. Teranet’s role is exclusively that of the service provider retained by the province.
Copyright is a creature of statute. Copyright subsists in plans of survey prepared by surveyors. Plans of survey are “artistic works” pursuant to s. 2 of the Copyright Act and attract protection provided by s. 5. The land surveyor who prepares a plan of survey is the author of that “work”.
This case is concerned only with copyright in plans of survey that have been registered or deposited under the ELRS. The copyright rests in either the province or the land surveyor who created the plan of survey. If the land surveyor has copyright, the making and distribution of paper or digital copies of the plan of survey is a breach of copyright committed by an employee of the province. However, if the province has copyright in the registered or deposited plans of survey, the appellant has no claim for breach of copyright, regardless of whether a government, employee or third party retained by the government, makes the copy.
The key question in this case is whether the registered or deposited plans of survey are “published by or under the direction or control of “the Crown. The rights of the Crown are informed by a series of provincial statues dealing with land registry in Ontario: the Registry Act; Land Titles Act; and the Surveyors Act. Considered in its entirety, the statutory scheme gives the Crown complete control over registered or deposited plans of survey and complete control over the publication of the plans of survey within the meaning of the Copyright Act. The provisions oblige the Crown to maintain possession and custody of all registered plans of survey. The Crown must provide access to those plans upon request. The surveyor cannot place any marking on the plan claiming any kind of copyright. The surveyor cannot make any change on the plan once it is registered or deposited without the permission of the examiner of surveys. However, the examiner can make changes without the permission of the surveyor. Importantly, the Crown is statutorily obliged to provide certified copies upon request. Therefore, certified copies of plans of survey made available to members of the public under the statutory scheme are artworks published under the “direction or control” of the Crown for the purposes of s. 12 of the Copyright Act.
The Court clarifies that ownership of copyright does not flow from the provincial land registration scheme. Rather s. 12 of the Copyright Act vests copyright in the Crown by virtue of the publication of plans under the “direction or control” of the Crown.
In its reasoning, the Court specifically refers to an Australian case, Copy Agency Limited, which considers whether the Australian Crown or the surveyor had copyright in the registered plans of survey. In doing so, the Australian court considered ss. 176 and 177 of the Australian Copyright Act 1968. Those sections read together are similar to s. 12 of the Canadian Copyright Act. The Australian Federal Court of Appeal held that the question turned on whether it is the first publication of the relevant plans. An “artistic work” is “first published” when it is made available to the public. The Court rejected the submission that a registered plan of survey was a different work than the unregistered plan prepared by the surveyor. The Court held that the plans were published by surveyors prior to the registration of the plans, either when plans were provided to the surveyors’ clients or when plans were made available to various regulatory and planning authorities. Accordingly, the Crown’s publication of the plans in the context of the land registration scheme could not vest copyright in the Crown.
S. 12 of the Canadian Copyright Act does not limit publication to “first publication”. Instead, s. 12 refers to any work that is “published” under the direction or control of the Crown and provides for a period of copyright measured from the Crown’s “first publication” of the work. The question of whether the Crown has copyright under s. 12, unlike its Australian counterpart, does not depend on whether the work has been previously published in Canada.
Surveyors are under no obligation to deposit or register plans of survey under the ELRS. A land surveyor who does not want a plan registered or deposited can (a) insert an appropriate term in the retainer with their client (b) refuse to sign the declaration required for the plan to be registered or deposited, or (c) place on the plan a claim of copyright or any other restrictions on the copy of the survey. As land surveyors are under no obligation to register or deposit plans of survey under the ELRS and can prevent any plan from being registered or deposited, there is no validity to the appellant’s submission that the above scheme is a form of expropriation.
2. On the Court’s interpretation, there is no vires problem. Federal legislation, s. 12 of the Copyright Act, bestows copyright in the Crown and provincial legislation informed the copyright inquiry mandated by s. 12.
The moving party solicitor moved under s. 34(1) of the Solicitors Act, R.S.O. 1990, c. S.15, for an order charging the damages and costs awarded to the responding party client. The solicitor alleged an outstanding total of $360,000, consisting of fees and disbursements incurred for both the trial and appeal. The client has initiated assessment proceedings against the solicitor.
(1) Does the Ontario Court of Appeal have jurisdiction to grant a charging order to secure solicitor’s fees?
(2) If there is such jurisdiction, is it limited only to granting a charging order in respect of fees and disbursements incurred in appeal proceedings before the court, or can the court also grant a charging order in respect of fees and disbursements incurred below in the Superior Court of Justice?
Holding: Motion adjourned to a panel of the Court of Appeal.
Brown JA was uncertain about the court’s jurisdiction to grant the charging order requested. Combined with the need to determine a question relevant to both solicitors and clients, Brown JA decided to adjourn the motion to a panel of the Court of Appeal, as per the Courts of Justice Act, s. 7(4). He held that a question of jurisdiction is best decided by a panel, not a single judge sitting in Chambers. The filed motion materials were ordered sealed, given their confidential nature.
David W. Russell, for the respondent, T.B-J.
Michael Ellison, for the respondent, N.A.M.

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Home / Martin Kretschmer; EU copyright reform / EU copyright reform: quo vadis?
As readers know, EU legislature is considering a reform of the relevant legislative framework for copyright. The IPKat is delighted to host an analysis of the current debate by Prof Martin Kretschmer (University of Glasgow and CREATe).
“Over the last months, many observers have tried to follow the progress of the EU copyright reform package that is now bogged down by close to 1,000 amendments from Members of the European Parliament to the proposed Copyright in the Digital Market Directive (COM(2016)593).
This post tries to shed some light on what is going on behind the scene.
At a recent visit to Brussels I spoke at a lunch briefing for the copyright working group of the European Council organised by the European Alliance for Research Excellence (EARE) and had meetings with MEPs, including with rapporteurs and shadow rapporteurs of Committees dealing with the Copyright in the Digital Market Directive the most controversial of the Commission’s proposals. I also attended the Meeting of the Legal Affairs JURI on 23 March, the lead committee on the Directive, considering the draft report of Rapporteur Therese Comodini Cachia (a Maltese MEP from the centre right European People’s Party EPP, the dominant group in the European Parliament).
In the complicated process of European law making (the “ordinary procedure”), the Commission proposes legislation, the Parliament amends and then the Council approves (although the Council can also adopt its own text, and send it back to Parliament; and the Commission can change its proposal at any time). In practice, the development of Parliament’s position runs in parallel to negotiations with the Commission and Council. Proposed legislation is a constantly moving target.
The interface between the three EU bodies is the most intriguing, and least transparent aspect of this process.
In the European Parliament, the proposed Copyright in the Digital Market Directive (adopted by the Commission on 14 September 2016) is at the Committee stage. Draft reports with amendments have been tabled in four Committees: Culture and Education CULT, Internal Market IMCO, Industry, Research and Energy ITRE, Legal Affairs JURI, with a fifth committee LIBE (Civil Liberties, Justice and Home Affairs) still becoming involved with an opinion scheduled for end of May. It has been said that MEPs already have submitted close to 1000 amendments. The sheer weight of translating these amendments may lead to further delay, with an “exchange of views” in the JURI committee on 29/30 May the next important opportunity to test the political mood.
My understanding is that following the completion of the Committee process, a so-called “compromise” text drafted by the JURI rapporteur might be ready to be voted on during this parliamentary session (ending in the second week of July). This coincides with the current Maltese presidency of the European Council handing over to Estonia for the next six months period from 1 July to 31 December 2017 (pre-Brexit, it would have been the UK).
The Maltese Presidency in its programme had committed to “take forward discussions on the copyright reform” (here, p. 28) but the Council (in practice, the Intellectual Property Attachés representing each Member State) have only just begun the process with a discussion of the proposed new exception for text and data mining (Article 3). I understand that most member states have yet to communicate any positions on the most controversial aspects of the Directive, the proposed introduction of an new exclusive right for press publishers (Article 11), and changes to the liability regime for platforms hosting user generated content (Article 13).
Informally, certain Member States (Sweden, Baltic, Eastern European, UK) are not that keen on the new publishers’ right (Art. 11), but many want something to be done about the money YouTube (ie Google) pays to the content industry (Art. 13), with France having a pretty entrenched position (discussed in Eleonora Rosati’s CREATe working paper here). It is very unlikely that the Council will arrive at a common position on the Directive by the end of June.
Meanwhile, there have been crucial changes in the Commission. Günther Oettinger, the German Commissioner behind Arts. 11 and 13 (and a compatriot from my home state Baden-Württemberg) has been moved to become Commissioner of Budget and Human Resources (as of 1 January 2017). Andrus Ansip, the liberal former Estonian Prime Minister (and Vice-President for the Digital Single Market) is now overseeing the copyright portfolio directly, and his team stands for a more progressive copyright agenda. Ansip’s position though has not been consistent, advocating cross border access and the integrity of the e-Commerce Directive on the one hand while holding the Oettinger line on Arts. 11 and 13 in a recent exchange of views in the Internal Market Committee.
It may be no coincidence that the Copyright Unit in DG CNECT (Digital Economy and Society) which “holds the pen” in drafting the Directive also has had a change of leadership. Maria Martin-Prat who was Head of the Copyright Unit since 2011 has been appointed in February as Director for Services and Investment, Intellectual Property and Public Procurement in DG TRADE. Marco Giorello (who played a part in the Orphan Works Directive and in the progress of the Marrakesh Treaty for the visually impaired) is currently Acting Head of the Copyright Unit.
In the Internal Market Committee (IMCO, with joint responsibility for Art. 13, only advisory on the rest of the directive), the draft report by rapporteur Catherine Stihler (S&D Group, Scottish Labour) was discussed on Monday March 13th. Her report takes note of the consensus expressed in an open letter by European research institutes on 24 February last. Art. 11, the misconceived new right for press publishers, is deleted. Regarding Art. 13, the reference to content ID has been removed as well as language that may undermine the E-Commerce Directive. On Art. 3 (text and data mining) the restrictions relating to beneficiary and purpose (“research organisations” “for the purposes of scientific research”) have been removed.
There was support in IMCO for Stihler’s sensible positions from the Liberals (ALDE), Greens and the Conservatives and Reformists Group, led here by the British Tories. Only the EPP shadow rapporteur wanted the publishers right restored. However, from the amendments submitted, it becomes clear that Ms Stihler also faces resistance from within her own party, as S&D MEPs Marc Tarabella, Virginie Rozière, Hugues Bayet proposed to extend the retroactive protection of Article 11 to 70 years (see AM 442).
Ms Comodini (EPP Malta), rapporteur for JURI, the lead committee, presented her draft report on Wednesday, 22 March. Again, this is a very sensible report, a great improvement on the Commission’s proposals. The treatment of Art. 11 follows the academics’ suggestion to focus on giving press publishers standing to sue rather than a new right. The amendments to Art. 13 seek to safeguard the E-Commerce directive. The text and data mining exception under Art. 3 is amended to be available to any person who has lawful access.
The JURI meeting on 22 March was quite an irregular session. I have participated in quite a few committee meetings in the European Parliament but this one was particularly strange. After Comodini’s report, rather than having the response from the shadow rapporteurs of the major groups (Social Democrats S&D, Liberals ALDE, Greens, Conservatives), the chair gave the floor early to two other EPP MEPs (the same party as the rapporteur) and later a French socialist who all appear to have been briefed by the press publishers’ lobbyists. The meeting also had been rescheduled to a different time at very short notice, and the new schedule was not online until the meeting had started.
During the JURI meeting, there was also a formal Hearing on the new mandatory exceptions in the Directive. Among others, Prof Alain Strowel (UCLouvain) spoke, advocating broadly the position of the European Copyright Society with respect to the exception for text and data mining: analysing the informational content of copyright works should not be considered a copyright relevant use.
In Articles 14, 15 and 16 the Proposed Directive uses weak language that seek to improve the contractual position of authors and performers. Vague obligations on Member States to improve transparency about modes of exploitation and revenues, and to enable additional remuneration for best selling works or performances are unlikely to be effective. The amendments proposed by the rapporteurs have not been able to make much progress here. A more effective approach would focus on the reversion of rights to the creator after specific periods (the United States under the 1976 Act provides for a process for the termination of transfers of copyright after 35 years, a clause that is currently being tested in the courts in a series of cases).
Regarding the freedom of users to engage, there are proposals from the CULT committee to consider exceptions for remix (“user-generated content may comprise extracts of copyright-protected works in a way that is not harmful for the rightholders”) and the so-called freedom of panorama (“non-commercial digital reproduction and use of works, such as works of architecture or sculpture, made to be located permanently in public places”). The panorama exception was the source of heated debate during the adoption of the Reda report in 2015).
Julia Reda MEP’s briefing note also deserves to be read.
It is difficult to predict how the politics of EU copyright reform will work out. There is a tremendous amount of noise and misinformation, such as dressing “fake news” as a copyright issue (which can only be characterised as cynical). Judging from my conversations in Brussels, the tide has started to turn in the European Parliament but clearly, policy makers find it hard to access independent evidence. The copyright stakes are high enough for parties to invest in disproportionate lobbying. For academics, exposure to this dynamic is uncomfortable and perhaps risky but we’ll continue to communicate independent research as clearly as we can.
The EU should be held to what Commission President Juncker set out his Mission Letter to Günther Oettinger on his appointment as Commissioner for Digital Economy and Society on 1 November 2014. True copyright reform should focus on the creative potential of European citizens and industry.
Whilst it has become the norm to criticise the EU law making process, picture this -would Kretchmer and others have had such immediate proximity or access to those who can directly influence law making (for good or for bad) in either Germany (where he is from) or the UK? Both jurisdictions have remote and removed systems. The German system with its powerful lander and vested local interests which has elements of the EU process), combined with the federal system is very slow.
The UK Committee process is remarkable for the quality of its reports, and its enquiries but that does not feed into the adopted law and should not be mistaken for it. The passage and adoption of law is far far removed from the average punter and whilst the quality of the drafting is better vetted by tradition, it is not beyond criticism as several judges have opined over the years. A number of UK judges have-shock, horror- asked why in implementing directives the UK legislator has departed from the text and made it more inaccessible. However, that is another matter.
Once you elect an MP, you are in their hands. You don't get a look in. And if the ruling party has a huge majority -forget it. Often, UK citizens/interest have been able to get what they want via Brussels. Of course, the prevailing opinion is having more than one means for the democratic process is not what a sovereign nations wants anymore.
Thanks, I`ve just found the info I was looking for a couple of days in your article. Bravo and regards!

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Iowa Supreme Court Applies Strict Scrutiny to Abortion Restriction.
California District Court Finds Due Process May Include Right of Access to Counsel for Detained Noncitizens.
No court has ever found that noncitizens in removal proceedings enjoy Sixth Amendment rights to counsel.1× 1. See, e.g., Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008) (“[L]itigants in removal proceedings have no Sixth Amendment right to counsel.”). Noncitizens have separate statutory and constitutional rights to counsel at private expense, but courts usually find these rights to be coextensive.2× 2. See, e.g., United States v. Reyes-Bonilla, 671 F.3d 1036, 1045–52 (9th Cir. 2012); Baltazar-Alcazar v. INS, 386 F.3d 940, 944–49 (9th Cir. 2004). Noncitizens’ right to counsel as it stands looks nothing like its Sixth Amendment analogue. Courts require situations “tantamount to denial of counsel”3× 3. Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir. 2005). — where a noncitizen is wholly prevented from retaining counsel, or her counsel is wholly prevented from appearing — to find a violation of the right.4× 4. See id. at 1099; see also Rios-Berrios v. INS, 776 F.2d 859, 862–63 (9th Cir. 1985) (finding violation of the right to counsel where a noncitizen was given two days of continuances to locate counsel although he “was in custody, spoke only Spanish, had limited education, . . . and had been removed nearly 3,000 miles from his only friend in this country”); Elinor R. Jordan, What We Know and Need to Know About Immigrant Access to Justice, 67 S.C. L. Rev. 295 (2016) (discussing noncitizens’ current right to counsel); Michael Kaufman, Note, Detention, Due Process, and the Right to Counsel in Removal Proceedings, 4 Stan. J. C.R. & C.L. 113, 133–34 (2008) (discussing noncitizens’ constitutional rights to access counsel and to effective assistance). They are reluctant to question Congress’s plenary power over immigration and analogize to constitutional rights outside the statutory scheme. Recently, in Lyon v. ICE,5× 5. 171 F. Supp. 3d 961 (N.D. Cal. 2016). the Northern District of California held that interference with detained noncitizens’ telephone access to their attorneys could violate their Fifth Amendment right to a full and fair hearing.6× 6. Id. at 980–85, 994. In doing so, the court sidestepped the statutory right to counsel and relied on the Constitution to locate a right of access to counsel.7× 7. See id. at 986–87. Through its reasoning, the court may have found a path to bring noncitizens’ right to counsel in immigration proceedings closer to its Sixth Amendment criminal counterpart.8× 8. It is hard to overstate the impact of each incremental expansion of detained noncitizens’ right to counsel. Currently, ICE can hold at least 34,000 noncitizens in detention. Department of Homeland Security Appropriations Act of 2015, Pub. L. No. 114-4, 129 Stat. 39, 43 (2015). Eighty-six percent of detained noncitizens lack counsel, compared with only thirty-four percent of nondetained noncitizens. Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1, 36 (2015). Represented detainees are almost seven times more likely than pro se detainees to be released. Id. at 70.
The ACLU of Northern California brought suit against Immigration and Customs Enforcement (ICE), and various other officials involved in immigration detention, on behalf of a class of adult noncitizens detained by ICE in four California detention facilities.9× 9. Lyon, 171 F. Supp. 3d at 964. Because the detainees’ immigration cases were docketed at the San Francisco Immigration Court, a substantial distance away from their remote facilities,10× 10. See id. detainees relied on telephone contact to communicate with their attorneys and collect evidence for their cases.11× 11. See id. The detainees claimed that all facilities shared telephone policies so restrictive that they interfered with detainees’ ability “to retain or communicate with counsel, or to gather evidence to be presented in removal proceedings.”12× 12. Id. at 965. The detainees specified several problematic practices: (1) [H]igh rates and fees for paid calls . . . ; (2) technical barriers and payment restrictions . . . such as a “positive acceptance” requirement where the individual being called must accept the call [which is impossible if the detainee must enter an extension]; (3) inadequacies of the free call or pro bono platforms; (4) limits on hours of telephone access; (5) lack of privacy; (6) inability to receive incoming calls or timely messages; and (7) failure to provide notice of calling options for detainees with limited English or Spanish language skills. Id. Based on these allegations, the detainees claimed violations of their statutory and constitutional rights to counsel and a full and fair hearing.13× 13. Id. The plaintiffs also claimed violations of their First Amendment right to petition the government for redress of grievances. Judge Chen found the claim “essentially the same as that under the Due Process Clause” and denied summary judgment for the same reasons he denied it on the procedural due process claim. Id. at 994.
The parties brought cross-motions for summary judgment.14× 14. Id. at 965. Evaluating the detainees’ statutory right to counsel15× 15. See 8 U.S.C. § 1229a(b)(4)(A) (2012) (“[T]he alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing . . . .”). claim, Judge Chen emphasized that noncitizens have no Sixth Amendment right to counsel16× 16. Lyon, 171 F. Supp. 3d at 974. and that the Ninth Circuit finds violations only where the conduct was “tantamount to denial of counsel.”17× 17. Id. at 975 (quoting Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir. 2005)). Because many detainees “did eventually find counsel after months of searching and with assistance from friends or family,” Judge Chen found no violation of detainees’ statutory right to counsel and granted ICE summary judgment on that claim.18× 18. Id. at 975–76.
The court next turned to the detainees’ statutory claim to a full and fair hearing,19× 19. See 8 U.S.C. § 1229a(b)(4)(B) (“[T]he alien shall have a reasonable opportunity to examine the evidence against the alien [and] to present evidence on the alien’s own behalf . . . .”). which the detainees maintained included the right to gather evidence when preparing their cases.20× 20. Lyon, 171 F. Supp. 3d at 976. Judge Chen rejected this assertion, finding that the statute only mentions a noncitizen’s right to examine and present evidence on her own behalf, not to investigate for and gather it.21× 21. Id. at 976–77. The court found no case law expanding the definition beyond the language of the statute and therefore granted ICE summary judgment on all statutory claims.22× 22. Id. at 977.
The court then examined the due process claims, where the detainees had alleged violations of their constitutional rights to counsel and to a full and fair hearing.23× 23. Id. Judge Chen summarily rejected the substantive due process claims, finding that plaintiffs had failed to plead a claim that their confinement was unconstitutionally punitive, and failed to show that telephone restrictions had led to an unconstitutional system of prolonged detention. Id. at 977–78. Judge Chen noted that the parties disagreed regarding whether the detainees had to demonstrate an actual injury to make a successful procedural due process argument.24× 24. Id. at 980. ICE relied on Lewis v. Casey,25× 25. 518 U.S. 343 (1996). where the Supreme Court required convicted prisoners to “show that they had actually been hindered in pursuing their legal claims.”26× 26. Lyon, 171 F. Supp. 3d at 980. The Lyon detainees distinguished their circumstances from those in Lewis, and Judge Chen agreed.27× 27. Id. at 980–81. Lewis concerned postconviction prisoners’ access to legal assistance programs in order to collaterally challenge their sentences.28× 28. See Lewis, 518 U.S. at 346. Judge Chen found that the detainees’ circumstances conformed more closely to those of the plaintiffs in Benjamin v. Fraser,29× 29. 264 F.3d 175 (2d Cir. 2001). where the Second Circuit refused to apply Lewis to pretrial detainees who were actively fighting their cases.30× 30. Id. at 184; see Lyon, 171 F. Supp. 3d at 981. Judge Chen emphasized that just as the Benjamin plaintiffs needed access to counsel “not to present claims to the courts, but to defend against the charges brought against them,”31× 31. Lyon, 171 F. Supp. 3d at 980 (emphasis added) (quoting Benjamin, 264 F.3d at 186). Lyon’s noncitizen detainees sought “to gather and present evidence in defending themselves against the government’s effort to deport them.”32× 32. Id. at 981. Unlike Lewis, which “did not concern a direct constitutional right, but an opportunity to present claimed violations of constitutional rights,”33× 33. Id. at 980. the court found that the phone restrictions could violate detainees’ direct constitutional “guarantee [of] a full and fair hearing, and [that] this includes access to counsel.”34× 34. Id. at 981.
Having rejected Lewis’s actual injury requirement, the court then applied the Ninth Circuit test for a procedural due process claim outside Lewis-like circumstances.35× 35. See id. Judge Chen found that in order to satisfy the injury requirement, a plaintiff does not have to prove that an alleged violation “actually affected”36× 36. Id. the outcome of a proceeding, only that it “‘may’ or ‘potentially’ affect the outcome . . . ; there are ‘plausible scenarios’ in which outcomes are affected.”37× 37. Id. at 983 (first quoting Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000); then quoting Zolotukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005); and then quoting Walters v. Reno, 145 F.3d 1032, 1044 (9th Cir. 1998)). The court held that detainees had submitted enough evidence that the detention centers’ restrictions could have affected the outcome of their cases to satisfy the Ninth Circuit’s injury requirement for a procedural due process claim.38× 38. Id. at 985. The court relied upon evidence including detainees’ inability to reach retained counsel who did not accept collect calls, and their inability to discuss their cases with counsel for fear of mentioning sensitive information on the phone in public areas. See id. at 982–83.
The court then examined competing legal frameworks for evaluating a due process claim in the detention context.39× 39. Id. at 985. It first applied the Mathews v. Eldridge40× 40. 424 U.S. 319 (1976). balancing test to determine if detainees’ due process rights had been impinged upon by the facilities’ telephone restrictions.41× 41. Lyon, 171 F. Supp. 3d at 987. Mathews requires the court to consider three factors: “(1) the interest at stake for the individual, (2) the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and (3) the interest of the government in using the current procedures rather than additional or different procedures.” Id. (citing Mathews, 424 U.S. at 324). Judge Chen concluded that the detainees had a significant interest in avoiding deportation42× 42. Id. (citing Walters, 145 F.3d at 1043). but that he could not grant summary judgment — there were still too many outstanding factual disputes for him to adequately balance the risk of erroneous rights deprivation43× 43. Id. at 988. The court emphasized disputes over the “actual availability of private phone options,” id., and the difficulty of proving risk of erroneous deprivation where detainees were completely unaware of their options, see id. with the government’s interest.44× 44. Id. at 991. The government had largely failed to provide justifications for its policies at this juncture, see id. at 989–90, or to articulate whether it had an interest in implementing ICE’s 2011 Performance Based National Detention Standards (2011 PBNDS), id. at 990. Experts disputed whether it was even possible to implement the 2011 PBNDS. Id. at 990–91. He then applied the Turner v. Safley45× 45. 482 U.S. 78 (1987). four-factor test to evaluate whether restrictions that impinge on due process rights could nevertheless be upheld for being “reasonably related to legitimate penological interests.”46× 46. Lyon, 171 F. Supp. 3d at 986 (quoting Turner, 482 U.S. at 89). These factors are: (1) [W]hether there is a “valid, rational connection” between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right that remain open to prison inmates; (3) whether accommodation of the asserted constitutional right will have significant impacts on . . . the allocation of prison resources . . . ; and (4) whether ready alternatives are absent. Id. at 985 (citing Turner, 482 U.S. at 89–90). The court found that the same disputes of material fact precluded summary judgment.47× 47. Id. at 993.
The Lyon court located a new constitutional avenue to bring noncitizen detainees’ right to counsel closer to that of criminal detainees. Despite the parallels between the criminal and immigration enforcement systems, noncitizen detainees have almost none of the procedural protections of criminal detainees.48× 48. See Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 Wash. & Lee L. Rev. 469 (2007), for a discussion of the enforcement parallels and procedural disparities of the criminal and immigration systems. Noncitizen detainees’ constitutional and statutory rights to counsel are usually read synonymously. The Lyon court both separated these rights and expanded the constitutional right to counsel to include access to that counsel. It therefore brought noncitizens’ procedural right to counsel protection one step closer to its Sixth Amendment criminal analogue.
The experience of a noncitizen awaiting deportation proceedings looks a lot like that of a criminal defendant. She will be picked up by a uniformed enforcement agency and can be locked up in jail to await the progression of her case. Yet the parallel does not extend to procedural protections — she might have no bond hearing,49× 49. See Sopo v. U.S. Attorney General, 825 F.3d 1199, 1212–13 (11th Cir. 2016), for a discussion of the circuit split on whether constitutional avoidance requires courts to read a time limitation into statutes allowing immigration detention without a bond hearing or only an individualized habeas inquiry. will be assigned no counsel,50× 50. In rare cases, some jurisdictions and courts provide certain classes of noncitizens with counsel at government expense. See, e.g., Franco-Gonzalez v. Holder, No. CV 10-02211, 2013 WL 3674492 (C.D. Cal. Apr. 23, 2013) (granting a permanent injunction requiring counsel for mentally incompetent noncitizen detainees). and might never even see a judge before being deported.51× 51. See Ebba Gebisa, Constitutional Concerns with the Enforcement and Expansion of Expedited Removal, 2007 U. Chi. Legal F. 565 (2007), for a discussion of the lack of judicial review of immigration proceedings and its impact. Although these similarities have not escaped the Supreme Court, which recognizes the gravity of deportation as a potential consequence, the Court still distinguishes deportation from punishment.52× 52. See Padilla v. Kentucky, 559 U.S. 356, 365 (2010). Removal proceedings are still civil.53× 53. See, e.g., id. at 357. Unlike criminal defendants, when noncitizens defend themselves against the government in immigration proceedings, they have no Sixth Amendment right to counsel.54× 54. See, e.g., Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir. 2009).
Like other defendants in civil proceedings, however, noncitizens in removal proceedings have a constitutional due process right to a full and fair hearing.55× 55. See, e.g., Colindres-Aguilar v. INS, 819 F.2d 259, 260 n.1 (9th Cir. 1987) (“[Noncitizen p]etitioner’s right to counsel . . . is a right protected by the fifth amendment due process requirement of a full and fair hearing.” (first citing Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985); then citing Ramirez v. INS, 550 F.2d 560, 563 (9th Cir. 1977))). Congress additionally grants noncitizens the statutory right to retain their own counsel, not at government expense.56× 56. 8 U.S.C. § 1229a(b)(4)(A) (2012); id. § 1362. Because courts usually find these constitutional and statutory rights to counsel to be coextensive,57× 57. See, e.g., Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (“Congress has recognized [the right to counsel in an immigration hearing] among the rights stemming from the Fifth Amendment guarantee of due process . . . . [This right] is codified at 8 U.S.C. § 1362 . . . .”). when they evaluate alleged violations of the right to counsel they do not distinguish substantively the right’s statutory and constitutional origins.58× 58. See sources cited supra note 2. Reading the rights synonymously makes analysis easier for the courts. Congress enjoys plenary power over immigration, see generally Chae Chan Ping v. United States, 130 U.S. 581 (1889), and by deciding that the constitutional right extends no further than the statutory right, courts can avoid the minefield of judicial review of congressional action. See Kevin R. Johnson, Immigration in the Supreme Court, 2009–13: A New Era of Immigration Law Unexceptionalism, 68 Okla. L. Rev. 57 (2015), for a discussion of the changing impact of Congress’s plenary power in immigration over time.
Courts find this amalgamated right to counsel much less protective than the Sixth Amendment.59× 59. When the Ninth Circuit distinguished the prejudice requirement for a right to counsel claim from that of an ineffective assistance of counsel claim through an analogy to Sixth Amendment prejudice requirements in Montez-Lopez v. Holder, 694 F.3d 1085, 1092–93 (9th Cir. 2012), it met fierce opposition. Judge Ikuta attacked the opinion and called for en banc review. See Hernandez v. Holder, 545 Fed. Appx. 710, 712–13 (9th Cir. 2013) (Ikuta, J., concurring). They accept violations only where the noncitizen has been wholly deprived of her ability to retain counsel60× 60. See Biwot v. Gonzales, 403 F.3d 1094, 1098–99 (9th Cir. 2005) (“[Immigration Judges (IJs)] must provide aliens with a reasonable time to locate counsel and permit counsel to prepare for the hearing.”); Rios-Berrios v. INS, 776 F.2d 859, 862–63 (9th Cir. 1985) (finding IJ should have continued the hearing to provide petitioner time to locate counsel). or her counsel’s ability to represent her at a hearing.61× 61. See Baltazar-Alcazar v. INS, 386 F.3d 940, 945–47 (9th Cir. 2014) (finding denial of counsel where IJ denied noncitizens their choice of counsel because of the IJ’s personal distaste for the attorney); Castro-Nuno v. INS, 577 F.2d 577, 579 (9th Cir. 1978) (finding denial of counsel where IJ failed to continue deportation hearing to allow noncitizen to locate previously retained counsel). In contrast, the Sixth Amendment both protects reasonable access to retained counsel and mandates effective assistance. The Ninth Circuit has upheld a constitutional right to effective assistance of counsel in the immigration context,62× 62. See, e.g., Mohsseni Behbahani v. INS, 796 F.2d 249, 250–51, 251 n.1 (9th Cir. 1986). There is a circuit split about whether noncitizens possess a constitutional right to effective assistance of counsel in removal proceedings at all. See generally Walter S. Gindin, Note, (Potentially) Resolving the Ever-Present Debate over Whether Noncitizens in Removal Proceedings Have a Due-Process Right to Effective Assistance of Counsel, 96 Iowa L. Rev. 669 (2011). but the right has no teeth. The Board of Immigration Appeals (BIA) in Matter of Lozada63× 63. 19 I. & N. Dec. 637 (B.I.A. 1988). set out stringent requirements to reopen a case based on an ineffective assistance of counsel claim.64× 64. See id. at 639. The “Lozada factors” require an affidavit by the noncitizen setting out in detail the agreement with counsel and the counsel’s failures, that the former counsel be informed and allowed to respond, and that a complaint be filed with disciplinary authorities. Id. For a discussion of the problems with the Lozada factors and recommendations for their reform, see Letter from Am. Immigration Council to Thomas G. Snow, Dir. of the Exec. Office for Immigration Review, U.S. Dep’t of Justice (Nov. 12, 2009), https://americanimmigrationcouncil.org/sites/default/files/general_litigation/IAC-EOIRletter-2009-11-12.pdf [https://perma.cc/TBX6-HFWC]. Notably, the BIA tried to overrule Lozada and remove the constitutional right to effective assistance of counsel completely, Compean, 24 I. & N. Dec. 710, 714 (B.I.A. 2009), but vacated that decision and reverted to the Lozada factors within six months, Compean, 25 I. & N. Dec. 1, 2–3 (B.I.A. 2009). Although the right to effective assistance of counsel stems from the Constitution, courts still defer to the BIA interpretation.65× 65. See Tamang v. Holder, 598 F.3d 1083, 1090 (9th Cir. 2010) (requiring strict compliance with the Lozada factors unless “the ineffectiveness of counsel was plain on its face”). The Supreme Court has held that a criminal defense attorney’s failure to advise her client of the immigration consequences of a criminal conviction constitutes ineffective assistance of counsel.66× 66. See Padilla v. Kentucky, 559 U.S. 356, 372–74 (2010). Ironically, the Lozada standard means an immigration lawyer who fails to accurately advise her client of immigration consequences is better insulated.
The Lyon court’s opinion broke with these implicit interpretational conventions: it split the detainees’ statutory and constitutional rights. First, the court applied Ninth Circuit precedent requiring that any violation of the right to counsel be “tantamount to denial of counsel” only to the statutory right.67× 67. See Lyon, 171 F. Supp. 3d at 975. Although both cases it cited found the statutory and constitutional rights indistinguishable,68× 68. See Biwot v. Gonzales, 403 F.3d 1094, 1098–1101 (9th Cir. 2005); Rios-Berrios v. INS, 776 F.2d 859, 862–64 (9th Cir. 1985). the court used them as evidence for a uniquely constrictive statutory right.
Second, the court also declined to find plaintiffs’ statutory right to a full and fair hearing coextensive with their constitutional right. The court implicitly questioned whether the statutory right relates to the constitutional one at all. Instead, it found that the statutory language69× 69. 8 U.S.C. § 1229a(b)(4)(B) (2012). bore no connection to the gathering of evidence, but only to its presentation.70× 70. Lyon, 171 F. Supp. 3d at 976–77. The court refused to extend the statutory right in any direction that could have been justified by its constitutional analogue.
Third, sidestepping the debate about ineffective assistance of counsel, the court located a new constitutional right usually reserved for criminal detainees: the right of access to counsel.71× 71. Another California district court has implicitly recognized the constitutional right of access to counsel for detained noncitizens in one other case. See Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1510 (C.D. Cal. 1988). A class of detained Salvadorean asylum seekers brought suit on the basis that they had been provided inadequate notice of their right to apply for asylum and had therefore been denied due process. Id. at 1506. The court issued an injunction designed to correct a variety of factors contributing to the lack of notice, including communication with counsel. Id. at 1511–14. Although the Ninth Circuit endorsed the district court’s reasoning by upholding the injunction, see Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990), perhaps because the case concerned such a specific class and such a variety of egregious violations, no other court has yet followed the Orantes-Hernandez reasoning for access to counsel. The court buried the most significant part of the opinion in its analysis of the actual injury requirement72× 72. Lyon, 171 F. Supp. 3d at 980–81. : it summarily found that in the context of deportation proceedings, “detainees have a Fifth Amendment guarantee to a full and fair hearing, and this includes access to counsel (of their own choosing).”73× 73. Id. at 981 (emphasis added). Through finding potential violations of access to counsel rather than ineffective assistance of counsel, the court was able to avoid deference to the BIA on its constitutional determination. Instead, because the court explicitly compared the situation of detained noncitizens to that of pretrial criminal detainees,74× 74. Id. it was able to look to constitutional precedent in the criminal detention context. Tellingly, the primary criminal case upon which the court relied not only evaluated due process violations, but also leaned heavily on Sixth Amendment protections.75× 75. See Benjamin v. Fraser, 264 F.3d 175, 185–86 (2d Cir. 2001). The court therefore subtly brought noncitizens’ constitutional right to counsel closer to criminal detainees’ Sixth Amendment protections, without wading into the controversial waters of ineffective assistance of counsel.
Although the Lyon parties eventually settled, precluding a judgment on the merits, the court’s analysis could provide a new framework to argue noncitizen right to counsel claims. By treating the statutory and constitutional rights to counsel the same, but remaining silent on whether their boundaries are exactly coextensive, the Ninth Circuit had left open the door for a court to distinguish them. The Lyon court used this silence to find the statutory language narrow and the constitutional right broad. But by separating the statutory and constitutional rights to counsel, the court allowed due process in removal proceedings to overlap more with its criminal analogue. Its findings may therefore represent a new avenue to bring noncitizens’ right to counsel protections closer to those guaranteed under the Sixth Amendment.