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First Circuit Reverses, Allows BC Student’s Lawyer to Appear

The U.S. Court of Appeals for the First Circuit ruled on Friday that the Boston College student who had been suspended after the University had found him responsible for sexual assault will be represented by his attorney of choice at Tuesday’s oral arguements.

First Circuit Judge David J. Barron had originally blocked Jeannie Suk Gersen, a Harvard law professor who has written about due process violations in Title IX investigations and represented students in similar cases, from representing the student, “John Doe,” at the oral arguments. Barron’s Oct. 24 order came with a note that the motion for Gersen to appear was denied “because it would create a recusal.” The members of the three-judge panel had not been announced at that time.

Barron was a Harvard law professor from 1999 to 2009 and again from 2010 to 2014, when he was appointed to the First Circuit. He remains the Honorable S. William Green Visiting Professor of Public Law. Barron is the only judge on the First Circuit to have worked at Harvard. 

Gersen has taught at Harvard since 2006.

The University suspended Doe in June after finding him responsible for the sexual assault of another BC student, “Jane Roe.” After the University denied Doe’s appeal in late July, the two parties quickly went to court. On Aug. 20, District Court Judge Douglas P. Woodlock ordered BC to allow Doe, a student-athlete, to register for classes and participate in all University activities.

Woodlock’s decision to send Doe back to campus largely rested on his ruling that BC’s investigatory model—in which two investigators interview the claimant, the accused student, and any witnesses separately—failed to adequately address questions of credibility and potentially violated Doe’s right to a fair process.

Doe had hired Gersen on Oct. 8 because Stuart Bernstein, his attorney who had led the case through district court, left work after his brother suddenly died on Sept. 23. Bernstein, who was very close to his brother, was unable to work as appellate counsel as he grieved with his brother’s children, according to the motion to reconsider Doe filed on Oct. 28.

Bernstein also observed several Jewish traditions, including Shiva, a week-long mourning period; Sheloshim, which lasts a month; and the twice-a-day recitation of the Mourner’s Kaddish, according to the motion to reconsider. As he did not return to work until mid-October, after the Jewish High Holy Days, Bernstein was unable to continue his work for Doe in the weeks leading up to the appeal, the motion to reconsider said. 

Tara Davis, another attorney who had worked on the lawsuit in both the District Court and the appeal, began her previously-scheduled maternity leave on Oct. 28, according to the motion to reconsider. 

The motion to reconsider said that Doe retained Gersen because “[she] was the only attorney that [Doe] considered prepared and ready to step in immediately for Mr. Brenstein and comply with the court’s briefing and argument schedule.”

The motion took issue with the effect of the court’s order—namely, that it would deny Doe of his chosen representation. It also noted that the federal statute on judicial recusal states the circumstances in which judges “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” but does not mention circumstances in which a judge would prevent an attorney from appearing to preserve his own impartiality.

Doe’s legal team said in the motion that they have inferred that it was Barron who felt he might have a conflict of interest if his colleague had appeared at arguments.

The motion said that the selection of Gersen was not intended to cause any ethical issues for judges.

“Appellee and counsel had no reason to question any First Circuit judge’s impartiality, including Judge Barron’s,” the motion to reconsider said. “Multiple sitting judges regularly teach courses at Harvard Law School, with ongoing and renewed appointments as visiting professors or lecturers, without creating issues of recusal when the school’s faculty members appear in their courts.

“What is truly extraordinary, however, is to prevent Appellee from having his chosen attorney appear in this Court in order to represent him. Appellee is unable to find any case in which a judge, concerned about the necessity of his own recusal, chose instead to prevent an attorney from appearing on behalf of her client. A judge’s recusal, rather than denial of a litigant’s choice of attorney, is the customary remedy in Courts of Appeals.”

The motion also took issue with a lack of transparency surrounding the order and argued that if Barron was the judge who would have needed a recusal, then he should have recused himself from the order barring her appearance.

On Oct. 29, the First Circuit announced that Judges Sandra L. Lynch, Michael Boudin, and Kermit V. Lipez would hear Doe’s appeal. Barron will serve on every other panel, as will Judge Norman H. Stahl. 

That same day, Lynch, Boudin, and Lipez denied Doe’s motion to reconsider. A day later, the order was corrected to note that Lipez had dissented in the decision to uphold Barron’s order. 

In response, Doe’s legal team asked for the full First Circuit to review the order. The petition argued that the decision to bar an attorney from appearing to prevent a recusal was both unprecedented and could have negative effects on future appeals cases.

“Doe respectfully submits that the question is of exceptional importance to litigants in the First Circuit going forward, because after the unprecedented Order in this case, litigants may reasonably wonder whether a court could simply disqualify their chosen counsel based on an unidentified would-be recusal of an unnamed judge for an unexplained reason,” the petition said. “Counsel in this jurisdiction may also reasonably wonder whether, after their zealous efforts on behalf of their clients, they could be disqualified from appearing ‘because it would cause a recusal’ of an unidentified judge whom are unaware of having any cause for recusal.”

Before the court could respond to the second petition, however, Lynch, Boudin, and Lipez reversed course in a Nov. 1 order and permitted Gersen to argue before them.

Featured Image by Colleen Martin / Heights Editor

November 4, 2019