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Tuesday, April 06, 2004
Goldstein Howe recently posted their petition for certiorari in a case styled Crum v. Flowers. The case is an appeal from an order of the Eleventh Circuit, dismissing for lack of standing their clients' efforts to enforce an injunction entered in a case in which the petitioners are not parties. The merits aside, Goldstein Howe has adopted what (to me at least) seems to be a novel approach to a cert petition. Instead of arguing that the Court should fully hear the case, petitioners ask for summary reversal. This is so even though petitioners argue that there is a circuit split on the issue that petitioners sought to have the Eleventh Circuit decide -- whether and to what extent nonparty beneficiaries may enforce injunctions. The brief even states that a good reason for summary reversal is so that the Eleventh Circuit can weigh in on the circuit split, which would "add measurably to the percolation of that issue in the lower courts."

My first thought is that GH was forced into this posture, because the Supreme Court is unlikely to take a case for full briefing and argument where the main issue was not addressed by the Court below. On the other hand, the argument could be made that by rejecting the appeal for lack of standing, the Eleventh Circuit has taken a stand: nonparties beneficiaries may not seek to enforce injunctions because they lack standing to do so. So it seems to me that the request for summary reversal is calculated to increase the chance of actually getting relief for GH's client. By not even asking for full briefing and argument, GH allows the court to decide its issue without crowding the docket. It is also a testament to Tom Goldstein's lack of ego: Tom does not stroke his own ego by his appearances before the Court, and if the client's interests are best served by not requesting argument, that is the course he will take.

On the other hand, if GH gets the relief it wants, and if the Eleventh Circuit on remand holds against their client, I have no doubt that GH might agree that the issue might then have percolated enough to warrant the Court's review. Again, however, that would be in the client's best interest.

(Disclosure: I used to work for Goldstein Howe)

P.S.: You may have noticed that I haven't posted any predictions in a while. It is clearly too late to catch up now, so I intend to post only when I feel like it and have something interesting to say about the Court. Of course, the number of people who talk about the Court online is pretty huge, so it remains to be seen if there is anything that I don't think is adequately being said elsewhere.