Paul Clement And Bancroft Ride To The Rescue Of A Missing Pro Se Litigant

Can a leading Supreme Court litigator get this poor pro se litigant's case reinstated?

Imagine you win the Powerball or MegaMillions jackpot. For some reason — the ticket got lost in a pile of receipts on your desk, you stuck the ticket in your briefcase or backpack and forgot it was there — you don’t check it and learn of your winnings until after the claim period has passed (typically 180 days or a year, depending on the state). Can you imagine how upset you would be?

The Supreme Court version of this scenario just happened to a pro se litigant by the name of Bobby Chen. The chance of the Court granting a certiorari petition and agreeing to hear a case hovers around 1 percent, and for people in Chen’s shoes — pro se litigants, proceeding in forma pauperis — the chance is even lower, more like 0.1 percent. But in November of last year, Chen convinced the high court to hear his case, involving judicial discretion to give litigants more time to serve legal papers on the people they’re suing (pursuant to Federal Rule of Civil Procedure 4(m), in case you’re wondering). There’s a circuit split on this issue, and the court in which Chen lost, the Fourth Circuit, is on one side of a rather lopsided, 7-1 split.

Alas, Chen apparently didn’t learn of his SCOTUS success until later — so much later that the Court had already dismissed his case. From a report by Brent Kendall for the Wall Street Journal:

Mr. Chen lost his improbable audience with the justices when the court never heard from him after it accepted his case for review. In January the court dismissed the case, which stemmed from the demolition of a Baltimore row house Mr. Chen acquired in 2000.

In a court document filed Tuesday, Mr. Chen said he didn’t know the Supreme Court had agreed to hear his appeal until it was too late.

And who filed that court document yesterday? None other than former U.S. Solicitor General and current Bancroft partner Paul Clement, one of the most accomplished Supreme Court litigators of our time. After Chen learned of his supreme misfortune, he cold-called Clement — “out of the blue,” as Clement put it — and got the celebrated advocate to take the case.

What does Clement have to say for his MIA client?

Mr. Clement’s eight-page submission said Mr. Chen left his New York residence last fall to make what was intended to be a short business trip to California. But while there, Mr. Chen suffered a “slip-and-fall injury” that postponed his return for more than two months.

Sponsored

And then he got amnesia! And when his memory returned, he found out his long-lost identical twin brother had impersonated him and voluntarily dismissed the case!

Actually, no — that’s what would have happened on a soap opera I’d love to write someday called “One First Street.” Here’s what actually occurred, according to Clement:

The court filing said Mr. Chen arrived back in New York on Jan. 22 and was “surprised and dismayed” to learn the Supreme Court had accepted, and subsequently dismissed, his case.

“Petitioner had no intention of abandoning his case when he failed to respond to this court’s attempts to communicate with him. Instead, petitioner was simply unaware that his case had been granted,” Mr. Clement wrote. “That is both understandable and excusable under the circumstances at hand.”

The submission asks the court to reinstate the case. It would be “unfortunate and inequitable” if the court denied a new opportunity to Mr. Chen, one of the few nonlawyers who has ever succeeded in securing Supreme Court review, Mr. Clement wrote.

Indeed. Good luck to Bobby Chen, Paul Clement, and Clement’s colleagues on the case — young superstar Erin Murphy, who made partner last year, and associate Raymond Tolentino, who I’m guessing might be my fellow Filipino-American — in getting Chen v. Mayor of Baltimore back on the SCOTUS docket. If the high-powered folks at Bancroft, recently named by Above the Law as the nation’s top litigation firm by law school pedigree, can’t achieve this feat, then nobody can.

(Gavel bang: Ted Frank and Eric Segall, who separately tweeted at me to say that this plot twist reminded them of my novel, Supreme Ambitions (affiliate link).)

Sponsored

Supreme Court’s Missing Man Resurfaces [WSJ Law Blog]
Missing Supreme Court Litigant Resurfaces, Aims to Revive Case [Wall Street Journal]
Chen v. Mayor and City Council of Baltimore: Petition for Rehearing [Supreme Court of the United States]

Earlier: Top Litigation Firms by Law School Pedigree
A Young Superstar Makes Her Supreme Court Debut