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July 09, 2020 Feature

All Persons Having Business

A litigator’s lessons from a case that went all the way to the top.

by Raffi Melkonian

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When I answered the phone at work in Houston, in September 2014, I had no idea I was about to get swept up into a current that would lead all the way from my suburban office to One First Street, the Supreme Court’s marble palace in Washington. I am no Supreme Court lawyer. In fact, a few weeks before I learned I’d have a Supreme Court argument, I’d joked with an old friend that I never really needed to worry about having a case “up there.” All I knew back then is that the lawyer on the other end of the phone needed my help. He represented a local woman of color who had been fired after her employer refused to accommodate her need to attend a special church service. The district judge had inexplicably dismissed the case for failing to allege a religious discrimination claim. My contact wanted to know whether I thought we had any chance at flipping the result. I took a quick look and said yes. Five years, two appeals, and two petitions for certiorari later, I found myself holding a 9–0 Supreme Court decision in our favor written by Justice Ruth Bader Ginsburg. You can look it up—Fort Bend County v. Davis, No. 18-525. Looking back, it occurred to me that aspects of my experience might be useful for any other Supreme Court (SCOTUS) or appellate novice to hear.

My new client’s name was Lois M. Davis. She was an African American woman who worked for Fort Bend County in its information technology department. Fort Bend is one of the fastest-growing counties in Texas, once rural but now part of the burgeoning Houston metroplex. Ms. Davis was a single mother who worked hard to provide for her son, and her job at Fort Bend provided her with stability and all-important benefits. As crucial as all this was for Ms. Davis, it wasn’t meant to be. Soon after she joined the Fort Bend staff, Ms. Davis became the target of her supervisor’s crude sexual predation. He made sexually charged comments about her, left lewd pictures on her desk, and in many ways used his power over Ms. Davis to make her life difficult. In a pre-#MeToo time, Ms. Davis was the target of all the foul behaviors that we have become so familiar with from the newspapers.

Like many women picked on by a sexual harasser, Ms. Davis held out as long as she could without complaining, worried that reporting her supervisor could cost her job. But inevitably her abuser escalated his behavior—he touched her inappropriately—and Ms. Davis’s breaking point came. She sought counseling and complained to the human resources manager. Fort Bend investigated and found her charges to be true. Her supervisor was encouraged to resign (note, ironically, that he wasn’t immediately fired, as Ms. Davis would be), and Ms. Davis took a few weeks off from work to recover from the ordeal. Anyone who has spent even a few hours with her—and knows how superhuman her work ethic is—would know how emotionally wrecked she’d have to be to take any time off.

Immediately on her return, her new supervisor began retaliating against her for reporting the sexual harassment. She was demoted; her lunch hour was taken away; her direct reports were drastically reduced. Then, during the scheduled move of the county’s courthouse and justice center to a new building, her new supervisor struck the final blow. Despite the fact that Ms. Davis had been working 60 hours a week to prepare for the move, he denied her request for a religious accommodation to attend a special and deeply important church service on the morning of Sunday, July 3, even though she’d worked late the night before and promised to work late after the service. When Ms. Davis went to church anyway, she was immediately fired—on Sunday—even before the next day of work. By all accounts, the move to the new justice center went perfectly, due in no small part to Ms. Davis’s efforts.

It all seemed to me on first view like an open-and-shut case of discrimination and retaliation. Alas, the courts had other ideas. As I said above, Ms. Davis’s first complaint had been dismissed. In the district judge’s view—to my disbelief—Ms. Davis “failed to even allege a religious belief that conflicted with her work.” Rather, in the court’s perplexing opinion, she had a “personal” but not religious “commitment” to attend church, and thus fell outside Title VII’s protections. Luckily, the U.S. Court of Appeals for the Fifth Circuit was not convinced. It reversed the judgment. Despite Fort Bend’s decision to hire elite Supreme Court counsel from Washington, D.C., its petition for certiorari was denied. And so we returned to trial court, two years later, convinced that we would soon get some justice for Ms. Davis.

But out of nowhere (and now three years, one appeal, and one cert petition into the case), Fort Bend filed a second motion to dismiss, this time asserting that Ms. Davis’s Equal Employment Opportunity Commission (EEOC) charge—the preliminary document Title VII plaintiffs must file before proceeding with suit—was insufficient because it did not specifically mention religious discrimination. We vigorously opposed that motion, pointing out that Fort Bend had obviously waived any such argument by litigating the merits for years. To no avail. The district judge dismissed our case once again. In her view, the EEOC charge requirement was a non-waivable jurisdictional bar. We appealed once again, and once again prevailed in the Fifth Circuit. That court held unanimously—and together with nearly every other circuit—that the EEOC charge is a waivable requirement, not a jurisdictional bar, to suit. And we thought, having secured that victory, that the saga was over and the time for trial had finally, at long last, inevitably, come.

Heading to the Supreme Court

When a petition for certiorari came across my desk about 90 days later, I felt sure it would be swiftly denied. The Supreme Court looks for long-entrenched circuit splits, and we didn’t see anything like that here. Under controlling Supreme Court authority, the charge requirement was non-jurisdictional. No court had said otherwise in many years. On the other hand, the petition was signed by Neal Katyal, a preeminent Washington, D.C., Supreme Court advocate, and it insisted there was a deep and unsolvable circuit split. His team was bolstered by some of his brightest and most talented young partners, including my eventual opponent at the Court, Colleen Roh Sindzak. Ms. Sindzak had just finished litigating the so-called “Muslim ban” cases on behalf of the challengers against the Trump administration. Still, after our team drafted a BIO (Supreme Court lingo for a brief in opposition to a petition), I forgot about it. From my perspective, it was all a waiting game until the inevitable denial fluttered in. And then, one morning in January 2019, I got a direct Twitter message from a friend, a top Supreme Court litigator. “Condolencegrats” it said. The petition had been granted. Against all odds. And I suddenly had a lot of work to do.

But before all that, I needed to hang on to the case. I’m a junior partner at my law firm. I knew that at many firms, a lawyer of my vintage would be expected to turn the case over to the big boss, the man or woman with the name on the door. When the grant came through, I duly walked down the hall to tell Tom Wright, the man who had brought me into the firm six years earlier, and Russ Hollenbeck, the senior partner who’d been with me every step of the way through the case. Once the shouting died down, these two had only one thing to say: “As far as we’re concerned, you’re arguing this case, and we’ll fight anyone who says otherwise.” I later joked on Twitter, where I’m a member of the warm and welcoming #AppellateTwitter community (no joke, come find us!), “Get yourself bosses like these.”

My position secured, our team turned to figuring out how the heck we were going to win a case in the Supreme Court of the United States. So much of the stress and the hype surrounding a case at the Supreme Court focuses on the oral argument. All eyes are on you, the advocate. There’s a rapt audience. You get a portrait made of that moment, not of the hours and weeks of agonizing over the briefing that preceded it. Even so, nearly every expert insists that getting the briefs right is more important than any oral presentation. We quickly realized we needed some help. However many briefs Russ and I had written (and we are experienced appellate advocates in the federal courts), we know what we don’t know. Supreme Court briefs are different. They sound different. They feel different. They dig deeper and range more broadly. As for the related task of wrangling amicus curiae, the amount we knew about that topic could have been scrawled in crayon on the back of a small napkin. And on top of all that, because our case was among the last granted for the 2018 term, we were under extreme time pressure. Argument was set for April 22, 2019, leaving just three months between the grant and the argument date to get a full set of briefs in. We were in a breakneck race to get the work done.

Luckily enough, the professional Supreme Court bar wants to help. There are only about 70 cases a year for several dozen prominent lawyers to share. After the petition was granted, our firm was inundated with offers of help from high-end SCOTUS counsel and law school clinics. Most of the offers assumed that the experienced helpers would take over the entire case, including the argument, and we’d be relegated to a silent seat at the co-counsel’s table. If that was the right decision for our client, there’s no question we’d have called in the cavalry, however personally painful it was for us. In the end, though, we were confident that with a good co-counseling relationship, we wouldn’t be leaving anything on the table if Russ and I stayed in the lead position.

In the end, we joined forces with Stanford Law School’s extraordinary Supreme Court litigation clinic, headlined by Professors Pam Karlan and Jeffrey L. Fischer, as well as a recent member of the staff of the U.S. Solicitor General’s Office, Brian Fletcher. We felt good about working with a law school—the professors hardly needed to recite their credentials (all of them are experienced Supreme Court lawyers)—but the students were the jackpot. Brilliant and with focused time to give us, they were the engine that pushed our brief forward. Working with the Stanford team, we prepared a killer merits brief, watched the short reply float in, and battened down the hatches to prepare for oral argument. There are two things I’ll remember most about that process. The first was introducing our client to the Stanford students, who were able to visualize the flesh-and-blood person they were helping. Law is sometimes an abstract enterprise, but this case isn’t like that and it was special at least to me to watch the students realize that. The second was marching into the Department of Justice to present our case to the Office of the Solicitor General (SG). That’s a typical part of most cases that implicate the interests of the federal government, but I had never done it. Those meetings are intimidating and grand affairs. Sitting in front of the assembled representatives of a half-dozen agencies to withstand withering questions from the staff was something that I’ll file away in my memories forever.

With the SG’s help assured (although you only find that out when the SG files its own brief, late in the process), I would turn full-bore to oral argument preparation. Or at least, I thought I would. But there was one more unexpected barrier still. Since my argument, I’ve often been asked what the hardest part of it was. I always answer the same way. By far, no question, beyond a shadow of a doubt, the most challenging part of this whole thing was figuring out tickets for oral argument. Being a football fanatic, I analogize it to the Super Bowl. I’ve read that when an NFL player makes it to the Super Bowl, the players are immediately deluged with friends and family asking for tickets. For the superstars, this isn’t a big problem—they have people whose job it is to handle those things for them. But for the rookie cornerback who barely made the team, it’s them or nothing. Who gets tickets? Who doesn’t? And what do you do with those left out in the cold?

Much the same is true of the first Supreme Court argument for someone who isn’t a member of the elite Supreme Court bar. Of course, the lawyers and the client need to have seats. If the U.S. Solicitor General is on your side, you only have two seats at counsel table, and one is for the arguing lawyer. So there’s no slack there. And it is no surprise that your family and the family of co-counsel would like to come. For many of them, this will be their only chance to see their loved one represent a client in the high court. But you also can’t forget about your other law partners, their families, and many other people who assisted with the case (for example, our Stanford Law School students). And yet, the Supreme Court Marshal’s Office allocates only a very few tickets for each party in the case, and those become even more scarce when there is a long list of lawyers being admitted to the Supreme Court bar on your day. What then is to be done? You cajole, beg, and borrow tickets. You disappoint some people. You shunt others to the lawyers’ line, a shorter line for members of the Supreme Court bar. Some friends even have to chance it in the public line, which snakes discouragingly around the Court’s plaza. In the end, I got it done. Almost everyone got a seat in the courtroom. Nonetheless, I’m pretty sure there were some bruised feelings. And I am 100 percent sure that if I get to do this again, I will delegate the task of dividing up seats to someone else.

Preparing for Argument

But finally, what was preparing for argument like? Well, preparing for a Supreme Court oral argument as a first-timer is a draining process. There’s an ambient level of skepticism that a lawyer who isn’t a member of the specialist bar can do a good job. In fact, the scrutiny of newcomers is so high that a prominent Supreme Court podcast used to label poor first arguments with the hashtag #Badlawyergate. My strategy to avoid this fate was to overprepare in the same way that I overprepared for the bar exam. Much better to feel like you wasted some time than to be humiliated. So I took my normal oral argument preparation and turned it up to 11. I made a notebook of the briefs and the main cases and read them every morning, a little like my grandmother used to read her Catholic daily devotionals. I must have read those documents hundreds of times. It’s amazing that even on the 30th read, a Supreme Court case can sometimes still yield new insights. I wrote scores of potential questions on note cards and practiced answers to them in front of my iPhone camera. I wrote an outline and then refined it again and again and again, until it was nothing but a list of five or six things I wanted to say to the Court “come hell or high water.” I even took to keeping a daily journal in which I wrote down what I’d done for the case that day and in which I appended various mementos and documents. It helped keep me organized, but also I figured I’d forget the experience if I didn’t write down what was happening contemporaneously. I did not want to forget a detail of the experience.

On top of all that, I set a rigorous schedule of moot courts for the final three weeks of preparation. For a normal argument in a federal appellate court, I might do one moot court. After all, mooting is an expensive enterprise. Colleagues need to take time out of their days to prepare for the moot and attend. And I need to do extra work to achieve the high level of preparation needed to actually do the moot. Moots are most valuable when you’re ready for argument already, ironically. Expensive as it is, where one of my clients can pay for it, I never miss the opportunity. Some of the most important insights I have in preparing for argument come from moots. But for a first-timer preparing for oral argument in the Supreme Court, I’d say good moots are mandatory. And I don’t mean an informal moot in front of colleagues either (unless your colleagues happen to be seasoned Supreme Court advocates). You need to do the right kind of moot. That is, a moot in front of extremely prepared questioners who know how the Supreme Court works and what kinds of things the justices care about. I told everyone I mooted with that I wanted my moots to be harder than the actual argument. And they were.

Ultimately, I did three moots. One was in front of my co-counsel at Stanford Law (did you know that really brilliant law students are terrifying mooters?), and the second was with the nonprofit Public Citizen. Perhaps most important, I set the Georgetown Supreme Court Institute’s moot as the capstone to my preparation, the Thursday before the big day. For those unfamiliar with it, Georgetown moots nearly every single case on one side or the other. The moot is allocated by a coin flip between the parties. The winner gets an intense session with at least five experienced Supreme Court lawyers in a mock courtroom watched by students and other interested parties. It’s as close as you can get to the real deal. When I walked out of the Georgetown moot having weathered the storm (and a storm it was, facing five SCOTUS practitioners who all had direct expertise on Title VII), I knew that I’d be fine for the argument itself. Dori Bernstein, the saintly (now former) director of the institute, will forever have my thanks.

The Day Arrives

Argument day, when it came at long last, was a whirlwind. My son was too young to come to the Court with us, so we needed to secure a babysitter (some wonderful D.C. friends came to the rescue). My parents and wife needed a taxi to Court (I ordered two different cars in the morning). We needed to make lunch plans for afterwards for my client and our team. (I researched places on the trip to the Court.) And as I worked my way into the courthouse, friends of mine from real life and the #AppellateTwitter community lined the halls of the Court waiting to come and watch. I can’t express how comforting it was to see their faces, but I thought it was important to greet each of them that I saw and say hello. It was all I could do to get a few moments to myself to think about the argument to come. But maybe it was better that way.

Anyway, frantic moments have a way of working out, and this one did too. As soon as I sat in the counsel’s chair, I knew it would all be fine. My mom later told me that she was able to settle down only when Chief Justice Roberts said my name correctly. Apparently, she’d been nervous for days that the highest jurist in the United States would call me “Melkoninin” or “Melkonunan” like a cut-rate telemarketer. But what really dispelled all my nerves was the argument itself. As soon as Ms. Sindzak began her excellent and fluid presentation, Justice Ginsburg’s sharp voice interceded with a tough query. The “notorious RBG” didn’t stop there. She went on to ask at least 10 intense and skeptical questions in a row of my opponent. What’s more, none of the other justices intervened to help the advocate, as they often do when they see a lawyer getting beaten up. By the end of Fort Bend’s argument, I felt confident we had the upper hand.

When my turn came, the 20 minutes I was allocated passed in a blink. Better yet, with one exception, every question the justices asked was a question that had appeared on my notecards or been asked at a moot. After the argument, in fact, I was able to match up the transcript with my notecards. I even said the word “yup” in response to a question from the chief justice of the United States and wasn’t immediately struck by lightning. About five minutes before the end of my time, I realized that the Court’s questions had run dry, and the justices had assumed the judicial mien I knew very well—that of judges who have heard enough and would like you to stop talking. I transitioned to my set-piece closing that I’d prepared but never thought I’d actually be able to use:

Well, if there are no further questions, I could leave this Court with one final thought, which is that this Court has done a lot of work in the last 15 years to clear up the profligate use of the word “jurisdictional.” Our friends on the other side want you to blur that line again and reinject uncertainty back into these cases. We urge you not to do that and affirm the judgment below.

I sat down, gave my law partner Russ a surreptitious fist bump, and let Ms. Sindzak’s rebuttal and the SG’s argument roll over me.

I found out we’d won the case on my 40th birthday, standing in line to drop off my son at his summer camp. I had him in one hand and, in the other, my phone on SCOTUSblog’s live feed of opinions as they were released in the Court. Three cases came down. No Davis. And then, finally, I saw it: “We have the next opinion . . . from Justice Ginsburg. It’s Fort Bend County v. Davis. . . . It is unanimous. The Fifth Circuit is affirmed.” I let out as loud a whoop as I dared in a line of busy parents, handed off my son, started texting my colleagues, made sure to get the word to Ms. Davis, and gave a fairly embarrassing series of fist pumps as I read the opinion. Justice Ginsburg had delivered on the promise of the oral argument. She had entirely rejected Fort Bend’s arguments and held, in her crisp and surgical language, that Title VII’s charge requirement was not jurisdictional. We had won. I basked in it, even as the realization that we still had a trial to win nudged at the edge of my mind. In any event, it was a great day at the end of a long and difficult process.

I have joked, paraphrasing St. Augustine, that I would like to do another Supreme Court case one day . . . but not too soon. (As the ancient saint put it, “Oh master, make me chaste, but not yet!”) It was a draining and all-consuming endeavor. And I have neither the skills nor the ambition to become part of the professional Supreme Court bar. I was nothing more than a happy tourist in that rarified air. But having said all that, it’s a real shame that there are only 70 cases a year, and perhaps twice as many available spots. The Court should not be an inner sanctum served only by a solemn priesthood. If the task is done right, taken seriously, and with the right training, lawyers from outside the select group of cognoscenti can represent their clients with honor in the Supreme Court. If you ever get that chance, take the opportunity, as I hope our team did, to prove that point.

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Raffi Melkonian

The author is a partner with Wright, Close & Barger LLP, Houston.