Lago Agrio: Donziger Cert. Petition Goes Nowhere

Last week I noted Steven Donziger’s petition to the Supreme Court seeking review of a New York decision affirming the decision to disbar him. I suggested that his petition, filed on his behalf by HLS professor Charles Nesson, might be untimely. Donziger announced his petition on social media on February 8:

It’s now February 20, and the petition hasn’t appeared on the Supreme Court’s docket. So while I leave open the possibility that I have somehow gotten this wrong, I’m calling it: I think it is pretty clear that the petition was untimely, and that the clerk refused to docket it.

A brief explanation. In a case decided by a state court, where the state’s highest court denies leave to take a discretionary appeal, ordinarily you have to seek cert. within ninety days of the date of the denial. Here, the New York Court of Appeals denied leave on August 13, 2020. Donziger moved for reargument on his motion for leave to appeal, but the Court of Appeals denied that motion on September 9, 2021. During COVID, the Supreme Court, by order, temporarily extended the time to file a petition for cert. from 90 to 150 days. But in a July 2021 order, the court rescinded its COVID order, with the following exception:

in any case in which the relevant lower court judgment, order denying discretionary review, or order denying a timely petition for rehearing was issued prior to July 19, 2021, the deadline to file a petition for a writ of certiorari remains extended to 150 days from the date of that judgment or order.

Now, 150 days from August 13, 2020 is January 10, 2021, so if the clock started then, the petition is untimely. It’s true that 150 days from September 9, 2021 is February 6, 2022, and so if the clock started when the New York court denied what was effectively a motion for reconsideration, then Donziger’s petition came in just under the wire.

Under the Supreme Court’s rules, if there is a timely petition for a rehearing in the state court, then the time to petition runs from the denial of the petition. Now, I am not a Supreme Court expert and I could be wrong about this, but I think the rule is referring to a petition to the court that decided the appeal to rehear the case, not a petition to the court that refused to hear a discretionary appeal asking it to reconsider its position. In any event, if I am right about what happened here, that seems to be the Supreme Court’s view of what its rule means.

This flub is unfortunate, but it is also the kind of mistake that has hamstrung Donziger throughout. I will give you one example. If you follow Donziger World on social media, you will often read the claim that he was sent to jail for refusing to turn over his clients’ secrets. That is, even on its own terms, only partly true: Donziger was found guilty of several contempts of court, including seeking to sell a part of his financial state in the Ecuadorian judgment, but it is true that one of the contempts was his refusal to hand over his electronic devices per the court’s order. But saying “Donziger bravely withheld his client’s secrets” misses everything that came before–all the missteps that led to the court’s order in the first place. It can’t really be disputed that Donziger failed to take the steps necessary to assert an evidentiary privilege. You can read Judge Preska’s lengthy decision for all the details, but the gist is that in order to assert a privilege, you have to produce a privilege log justifying your assertions. Donziger didn’t. So it’s no wonder the court held that he had waived the privilege. And of course, as Judge Preska’s decision makes clear, even if Judge Kaplan had gotten that question wrong, “the court got it wrong” is not a basis on which someone can refuse to obey a court order.

To be sure, there are other instances where Donziger didn’t take a procedural step that later came back to haunt him, but where his decision was probably sound. For example, when he appealed Judge Kaplan’s judgment in the RICO case, he focused exclusively on legal grounds (e.g., he argued that Chevron lacked standing to bring a RICO claim against him seeking only equitable relief), and he did not challenge the judge’s factual findings. That was probably a sound decision, given that the standard for reversing a judge’s findings of fact is so daunting: it’s necessary to show that the judge clearly erred, and given that his main legal arguments were pretty good. Nevertheless, the failure to appeal from the findings of fact, or even to seek to set aside the judgment later when new facts came to light, hurt Donziger in his disbarment fight, since the New York authorities took the facts the judge had found as established.

This Post Has 6 Comments

  1. Marian Dent

    Thank you for bringing attention to this case, Ted.

  2. Philipp Fölsing

    Hello, Mr. Folkman, I hope you are well. You were right that the petition was filed out of time. On February 7th Mr. Donziger filed a motion with the Supreme Court to direct the clerk to file a petition for a writ of certiorari out of time, probably as a reaction to your post. Professor Nesson wrote in the motion: “Though I checked the rules when I began representing Mr. Donziger in his disbarment, I did not become aware of the Court’s return from the extraordinary measures it took in response to the pandemic until after the petition was submitted and served.” The motion is distributed for the conference of March 4th. The docket no. is 21M87. Somehow the Supreme Court got the name wrong, the petition is docketed under the name of Donzinger. I am curious, though: Can US courts simply disregard missed deadlines? German courts tend to be more strict.

    When do you think the Second Circuit is going to decide on the contempt matter?

    All the best from Hamburg, Yours sincerely Philipp Fölsing

    1. Ted Folkman

      Philipp, that’s a great catch! I was unaware of this filing, since I didn’t know to search for “Donzinger.”

      I will put up a post about this, because I cannot not pay attention. But the short answer is that the Court has lots of powers to deal with cases in an extraordinary way, which it rarely exercises.

      1. Philipp Fölsing

        Ted, I also did not search for “Donzinger”. Just like you I was wondering why the case did not appear on the Supreme Court docket. Finally I tried the search term “Grievance Committee”. The motion (7 February) must be a reaction to your post (6 February), or what do you think? All the best from Hamburg, Philipp

        1. Ted Folkman

          Philipp, it’s possible, but I really do not know whether Donziger World pays attention to my blog. I suppose the clerk’s office would have explained to Prof. Nesson that it was refusing to file the petition.

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