2018 Frank Wheat Memorial Award Nominees

Team Nominee: Lawyers Without Borders Counterterrorism Prosecution Training Program (New York; Washington, D.C.)

Lawyers Without Borders (“LWOB”) is a not-for-profit whose mission is to promote the rule of law around the world by leveraging and promoting pro bono service to meet the needs of the underserved, build capacity in justice sectors, and support transitions and development aimed at protecting human rights.  LWOB recently received a two-year grant from the U.S. Department of State to create a Prosecutorial Training Institute (“the Institute”) to focus on terrorism and other complex cases in Kenya. The grant required LWOB to create, among other training tools, four case files to serve as a foundation of case files that the Institute will use going forward.

Gibson Dunn lawyers from the New York and Washington, D.C. offices collectively worked over 1,100 hours to develop these detailed training materials, including: developing a mock case file (containing significant national- and local-level cultural and geographic detail in addition to extensively researched forensic expert reports); creating case file aids for use in the training (including an analysis of potential charges that could be brought under relevant Kenyan law); researching and developing a module on appropriate etiquette for testifying in court during a terrorism case in Kenya (which, among other things, explained the nuances of testifying in different instances, including the differences in demeanor and strategy for opening statements, closing statements, direct examination, and cross examination of various witnesses); preparing materials on impeachment (including designing an interactive activity to force prosecutors to think on their feet); developing a collection of training materials for prosecutors; and drafting interactive, interesting, and culturally sensitive presentations for both prosecutors and defense counsel.

Gibson Dunn partners Joel M. Cohen and Mylan Denerstein as well as associate Julie Inglese attended an in-person training in Kenya in July 2018, where Seventh Circuit Judge Ann Claire Williams led a group of 17 faculty members to train 80 attorneys over five days. During the training, those 80 attorneys participated in a mock trial based on the case file developed by Gibson Dunn. Chris Timura, Claudia Kraft, Kathryn Cherry, Declan Conroy, Justine Goeke, Jesse Melman, Genevieve Quinn, Tarana Riddick, David Salant, and Indraneel Sur all worked on the project and provided invaluable contributions to the final product.

Team Nominee: Humane Society Board Governance Review (Washington, D.C.)

In February 2018, the Chief Executive Officer of The Humane Society of the United States (“HSUS”), which provides direct care to more than 100,000 animals each year, resigned in the wake of allegations of sexual harassment.  Prior to his resignation, HSUS’s Board of Directors (“the Board”) had voted to immediately end the ongoing investigation into the allegations, resulting in seven board members resigning in protest. Subsequently, various HSUS stakeholders and members of the public voiced their concerns about the Board’s conduct and effectiveness.

To ensure an independent and thorough review of its governance policies and procedures in order to find ways to regain the public’s trust, the Board turned to Gibson Dunn. On a pro bono basis, the firm engaged in a board governance review comprised of three phases:  (1) a comprehensive review of HSUS governance and procedures, including interviews with key HSUS stakeholders; (2) the formulation of recommendations regarding board governance practices and policies and the development of a Board Governance Action Plan; and (3) implementation of that plan. Gibson Dunn attorneys worked closely with HSUS directors and General Counsel, in addition to a team of communication experts and a team from a Delaware law firm, to help review HSUS’s Certificate of Incorporation and Bylaws.

Over a period of about six months, Gibson Dunn developed a Board Governance Action Plan setting forth over 45 specific action items for the Board to consider and undertake.  The firm’s recommendations included that the Board issue a prompt and explicit statement that harassment will not be tolerated, and that the Board update and clarify its process for receiving and responding to harassment claims. The Board voted unanimously to endorse Gibson Dunn’s recommendations. The organization acknowledged in a press release: “By implementing these important and necessary changes, we will not only make the Board’s oversight of HSUS more effective and better aligned with best practices, but also ultimately foster a stronger and kinder organization.”

The firm continues to provide HSUS with guidance and assistance as they respond to outreach from stakeholders and begin implementation of the plan. The Gibson Dunn team includes Beth Ising, John Olson, Geoffrey Walter, and Emily Shroder.

Team Nominee: Sause v. Bauer (Dallas; Palo Alto; Washington, D.C.)

Mary Anne Sause, a retired nurse on disability and a rape survivor, was in her Louisburg, Kansas home one evening when two officers approached and, without identifying themselves, demanded she allow them inside.  As she never opens the door to anyone she cannot identify, she did not initially comply. The officers left but later returned, demanding again to be let inside and questioning why she had not done so earlier. As they had still not explained the reason for their appearance, Ms. Sause showed her pocket Constitution to the officers, who laughed in response and said: “That’s just a piece of paper” that “doesn’t work here.” Once inside, they told her to prepare to go to jail, although they indicated they did not know the reason why. It was later revealed that they had come to her home because of a minor noise complaint (she was listening to her talk-radio show too loudly).

Frightened while the officers were in her home, Ms. Sause requested permission to pray, and upon being granted permission by one of the officers she began praying silently while kneeling. The second officer mocked her and ordered her to get up and stop praying.  Thereafter, Ms. Sause filed a §1983 suit pro se, alleging that the officers violated her First and Fourth Amendment rights.  The district court dismissed the complaint with prejudice, ruling that the officer’s order to stop praying “may have offended her,” but did not “constitute a burden on her ability to exercise her religion.” Gibson Dunn stepped in to handle her appeal to the U.S. Court of Appeals for the Tenth Circuit.

The firm persuaded the Tenth Circuit that the officers violated Ms. Sause’s First Amendment rights by forcing her to stop praying without any legitimate law-enforcement interest.  However, despite recognizing the officers’ “obviously unprofessional” conduct, the Court nevertheless ruled for the officers on qualified immunity grounds.  The Gibson Dunn team then sought review in the U.S. Supreme Court, asking the Supreme Court to summarily reverse the Tenth Circuit.  The petition explained that the Tenth Circuit’s decision sharply conflicted with the Court’s earlier decision in Hope v. Pelzer, in which the Court expressly rejected a requirement that defeating qualified immunity requires “that previous cases be ‘fundamentally similar’” or involve “‘materially similar’ facts.”  The Tenth Circuit, however, had ruled in Ms. Sause’s case that the officers were entitled to qualified immunity precisely because Sause could not identify a single factually similar case.

The Gibson Dunn team persuaded the State of Texas to file an amicus brief on Sause’s behalf (only the second time a government entity has ever filed a brief arguing against qualified immunity), in addition to securing an amicus brief by a group of former federal prosecutors.  The Supreme Court ultimately granted the cert petition, summarily reversed the Tenth Circuit, and remanded for further proceedings. For the first time in history, the Court summarily reversed a decision granting qualified immunity on the pleadings.  A unanimous Court explained that “[t]here can be no doubt that the First Amendment protects the right to pray” and that “[p]rayer unquestionably constitutes the ‘exercise’ of religion.”

The Gibson Dunn team included former Dallas partner James Ho, as well as Dallas partner Brian Robison, partner Allyson Ho, of counsel Ashley Johnson, and associates Brad Hubbard, Will Thompson and Ben Wilson, in addition to D.C. associates Elliot Gaiser and Jason Neal, and Palo Alto associate Rob Dunn.

INDIVIDUAL NOMINEE

Daniel Kuo, San Francisco

Daniel Kuo has engaged in impressive pro bono advocacy on behalf of immigrant clients in two cases, which together have spanned the Immigration Court, Board of Immigration Appeals, and United States Court of Appeals for the Ninth Circuit.

Dan accepted an appointment through the Catholic Charities Board of Immigration Appeals Project to represent Mamadou Soumahoro, an Ivory Coast refugee, in his appeal of the denial of his asylum application. Mr. Soumahoro had fled from violence, including the murder of his brother, to seek asylum in the U.S. in 2016.  During his border asylum interview he repeatedly stated that he spoke little English but was denied an interpreter.  He was then detained in Arizona, placed in removal proceedings, and denied asylum.  Dan filed an appeal and reconstructed a robust asylum application.  Over a series of multiple hearings, Dan guided Mr. Soumahoro through new testimony about the violence he and his family had witnessed and endured.  In August 2018, the Immigration Judge ruled that Mr. Soumahoro was entitled to asylum.

Dan’s second pro bono immigration case was an appointment to represent Claudia Simon on an appeal before the Ninth Circuit. During her removal proceedings, Ms. Simon had experienced a series of escalating symptoms of mental illness and it was discovered that she had been previously diagnosed with bipolar disorder and schizophrenia. Under the provisions of a recent ruling in Franco-Gonzalez v. Holder, Ms. Simon, who was unrepresented, was entitled to a mental competency hearing before the Immigration Judge; if she were deemed incapable of representing herself, she was further entitled to an attorney. However, the Immigration Judge failed to follow numerous requirements of the Franco-Gonzalez decision and ultimately she was ordered removed.  Dan submitted a brief on behalf of the client that centered on many issues of first impression. In particular, the brief argued that the court had failed to properly question Ms. Simon about her competency and her grasp of what was happening in her case, ignored signs and evidence that she failed to understand her proceedings, and improperly relied on the government’s own medical evaluations rather than ordering an independent evaluation. The government reached out to Ms. Simon about an agreement to remand her case, and through further negotiations and mediation, the two sides agreed that Ms. Simon’s mental competency hearing had been improper and that the case should be remanded for a new hearing.  Ms. Simon’s case is currently pending once more before the Immigration Court.

INDIVIDUAL NOMINEE

Aidan Taft Grano, Washington, D.C.

In June 2018, Aidan Taft Grano argued on behalf of pro bono client Michelle Monasky before 18 judges of the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, in a precedent-setting case involving novel questions under The Hague Convention on International Child Abduction.

Ms. Monasky, a U.S. citizen, had a child while living in Italy with her husband, an Italian citizen who became physically, verbally, and sexually abusive. The client escaped the abuse with her baby and fled to Ohio, but the father filed a petition in the Northern District of Ohio under The Hague Convention on International Child Abduction. He argued that the baby was “habitually resident” in Italy at eight-weeks-old and therefore had to be returned for a custody determination. In the absence of clearly controlling Sixth Circuit precedent, the district court concluded that because the parents had a “marital home” at one point in Italy, that home established the child’s habitual residence.

Gibson Dunn has represented Ms. Monasky in her appeal from the district court order on a pro bono basis since 2016, including briefing and arguing the merits before a Sixth Circuit panel. The most recent issue to be determined was whether an infant can have a “habitual residence” for purposes of the Convention, and how that residence can be determined. Aidan drafted a brief focusing on the purposes of the Convention, the language chosen by the drafters, and the practice of U.S., foreign, and international courts dealing with infant children.  With an in-depth analysis of the factual patterns of the circuits and foreign courts addressing infant cases, the brief argued that where an infant is not affirmatively settled in a country, the Convention was never intended to apply to her. Moreover, the brief advocated for a modification of the standard of review applied to questions of habitual residence. Finally, the brief pressed for entry of a re-return order without a remand because of the purely legal errors and the significant harm to the client and her child from the child’s continued presence in Italy. In addition to drafting the supplemental and reply briefing ordered by the Court, Aidan coordinated amicus support both for the petition for rehearing and on the merits.

On October 17, 2018, following Aidan’s oral argument, the Court issued its opinion. Thirteen of the 18 judges agreed with Gibson Dunn’s argument that infant habitual residence is governed by shared parental intent.  However, a 10-judge majority held that clear error review should apply to the habitual residence determination and affirmed on that basis. Eight judges dissented, with three judges writing opinions that called for remand to the district court to consider the new standard. Most notably, the application of clear error review creates another circuit split: eight circuits call habitual residence a mixed question of law and fact and apply de novo review, while only the Fourth and now Sixth Circuits apply clear error review. In addition, the majority opinion appears to have split with the Fifth Circuit by holding that the lack of subjective parental intent is not dispositive. Aidan is preparing a cert petition for filing in early 2019.