The candor of Judge Watford

By David Raatz

Does Congress intend for military reservists to always get their claims heard in court when they’re fired in response to deployment? Judge Paul Watford doesn’t think so. But he’s not sure.

Must the 30-day deadline for filing a notice of appeal to always be strictly applied — even in a death penalty case where the notice was just one day late? Watford says yes, but he wants the Supreme Court to step in and allow for leniency when warranted.

Does the public interest in knowing who attends a notorious military school outweigh the Pentagon’s interest in keeping names secret? Watford admits he normally gives “considerable deference to the judgment of military officials,” but in this instance, after citing his own research on the school’s history, he thinks the public has a right to know.

Some judges convey a sense of certainty in their decisions. In contrast, these recent opinions illustrate that Watford — who sits on the 9th Circuit Court of Appeals, with jurisdiction over his home state of California and other western states — has refreshing candor and humility.

He’s willing to take the reader directly into his thought process. Judge Watford shows his work.

Watford, 49, was interviewed by President Obama earlier this year for consideration as a Supreme Court nominee. He’s a graduate of UCLA law school and worked as an attorney in both the private and public sectors before joining the court four-and-a-half years ago.

In the case about a servicemember who was terminated after being deployed to Afghanistan, Ziober vs. BLB Resources, Inc., a 9th Circuit panel concluded an arbitration clause in the employment contract was valid. Thus, the employee had to bring his claim in a private arbitration hearing — a venue considered more favorable to employers than federal court.

The Federal Arbitration Act establishes congressional intent that arbitration agreements be enforced. The legal issue was whether the Uniformed Services Employment and Reemployment Act included an implied exception to the pro-arbitration policy.

The USERRA prohibits termination based on military service. The plaintiff argued Congress intended to allow USERRA claims to always be heard in court, notwithstanding the Arbitration Act. On Oct. 14, Watford and his colleagues disagreed.

He offered a candid concurrence: “I join the court’s opinion, but I have doubts about whether we are reaching the right result. . . If we have erred in construing (the USERRA) too narrowly, Congress will surely let us know.”

In the death penalty case, Washington vs. Ryan, the majority concluded on Aug. 15 a rule allowing judicial leniency based on a litigant’s “excusable neglect” permitted the inmate to proceed with his appeal, even though his attorney missed the deadline by one day.

Watford began his dissent with another frank statement:

“I take no pleasure in voting to dismiss Theodore Washington’s appeal. Dismissing the appeal because his lawyer filed the notice one day late strikes me as a grave injustice in the circumstances of this case.”

Yet, he wrote he was “compelled” to vote that way because of his understanding of Supreme Court precedent, even as he acknowledged the precedent “stands on shaky ground and merits reconsideration.”

In case involving the facility formerly known as School of the Americas, Cameranesi vs. Department of Defense, the court on Sept. 30 allowed the Obama Administration to keep the names of students and instructors secret against a Freedom of Information Act challenge. The majority judges criticized Watford, who dissented, for “relying primarily on newspaper articles and other extra-record material” to conduct his own “historical research.”

Watford, though, clearly felt press accounts had to be reviewed to understand the public’s interest in the facility, based in Fort Benning, Ga. and now known as the Western Hemisphere Institute for Security Cooperation.

Watford’s dissent reported on the School of Americas’ track record in a four-page passage that included the following introduction:

“SOA became the subject of considerable controversy after the 1989 massacre of six Jesuit priests in El Salvador during that country’s civil war. It turned out that 19 of the soldiers involved in the massacre had received training at SOA.

“That incident was not an anomaly. After the Army began releasing the names of former SOA students and instructors in 1994 as a result of FOIA requests, human rights activists linked the school’s attendees to a host of notorious crimes.”

His review of the record — including the actual human history rather than just the facts presented in court — led Watford to this conclusion: “The public interest in knowing which foreign students our government chooses to train militarily and what comes of that training is much stronger than any public interest that might exist in the disclosure of the identities of U.S. military personnel.”

The School of Americas case is on appeal with the Supreme Court. If the justices take the case, it could be for the purpose of converting the views expressed in Watford’s dissenting opinion into the prevailing view of the law.

Such an outcome could make him an even more likely pick for a Supreme Court opening. If he is nominated, it will be interesting to see how the Senate Judiciary Committee regards Judge Watford’s distinctly candid style of conducting his work.

David Raatz is a lawyer and writer in Wailuku, Hawai`i.