Carol Sachs remembers looking for her sleeper car, the train pulling away without her on it, and jumping onto a stairway to get on board. She was touring Europe, catching the train at the Innsbruck station in Austria, about to fall onto the tracks and into an argument about the role of the 9th U.S. Circuit Court of Appeals.
She has no recollection of the train running over her legs, or amputation.
“I have a vague memory of lying down and seeing shadows move past and I’m thinking, ‘I’ll get up when they’re gone,’ ” Sachs said. “I have to think that’s a manufactured memory. I don’t know where that came from, and the next thing I remember are the horrible dreams that I was having in the hospital.”
A decade later she and her case against the railroad company would become statistical fodder for President Donald Trump’s ongoing power struggle with the court. His attacks on the judiciary have alarmed some judges and advocates who defend the role of the courts as one needed to resolve nuanced and complex legal cases without political bias.
Sachs, now 53, sued Austria and its government-owned railroad company, OBB Personenverkehr AG, in U.S. District Court in San Francisco. The trial judge threw the case out on grounds that Austria and its agents were protected from legal action in America by the 1976 Foreign Sovereign Immunities Act. The 9th Circuit, citing the law’s commercial activities exemption, reinstated Sachs’ action in 2013. But the Supreme Court ruled against her, saying that if she wanted to sue Austria, she had to do it over there.
Her case was one of 11 that came out of the circuit that the Supreme Court took up and decided in its October 2015 term. Of those 11 cases, the Supreme Court overturned eight. Trump used this record to criticize the 9th Circuit after a three-judge panel on Feb. 9 overturned his administration’s initial travel ban against seven Muslim-majority countries.
“I have heard 80 percent,” Trump said during a Feb. 17 news conference, quoting a figure that also roughly covers the circuit’s reversal rate from 2010-15. “I find that hard to believe. That is just a number I heard, that they are overturned 80 percent of the time. I think that circuit is – that circuit is in chaos and that circuit is frankly in turmoil.”
Not long after those remarks, Trump picked up a demand, long advocated by Republican lawmakers, to break up the San Francisco-based court, one of 13 federal court circuits in the U.S. It stretches from Montana to California, includes Hawaii and Alaska, and handles an average of 12,500 appeals a year. Detractors have described the court as too large and too liberal.
“There are many people that want to break up the 9th Circuit,” Trump said in an April 26 interview with the Washington Examiner.
Trump’s campaign against the court has continued with added legal decisions against his travel ban. The full Supreme Court announced June 26 that it would hear oral arguments in October on the executive order. It ruled that in the meantime, parts of the ban could take effect, but exempted refugees and travelers with a “bona fide relationship” with someone in the U.S.
Behind the political speeches are numbers, behind the numbers are cases, and in those cases are people. Sachs is one. In an interview at her mother’s Berkeley home, she said she didn’t see the president’s remarks on the 9th’s reversal rate in the context of her own, concluded case. “I didn’t really have any skin in the game and I didn’t really get worked up about it,” Sachs said.
But her case is a part of who the court is and what it does, and the Trump administration’s disparaging view of it.
Judging the court
Days before he referenced the 9th Circuit in that February news conference, Trump signaled that his presidency would test the natural tensions that exist between the executive and judicial branches of government.
After U.S. District Judge James Robart in Seattle first ruled against the travel ban, Trump on Feb. 4 took to Twitter to characterize the opinion “of this so-called judge” as “ridiculous.” Robart’s decision would later be upheld by a three-judge panel and in an “en banc” rehearing that represented the full 9th Circuit.
Other federal judges around the country also have ruled against the contours of Trump’s executive order, as has a second 9th Circuit panel and the 4th Circuit, which is tied for having the second-lowest reversal rate in the country at 43 percent, according to PolitiFact. The 9th Circuit has the third highest reversal rate during that 2010-15 period, behind the 6th and 11th circuits.
Even some judges who agree with the travel ban reject the attack on judges.
“The personal attacks on the distinguished district judge and our colleagues were out of bounds of civic and persuasive discourse,” wrote 9th Circuit Judge Jay Bybee, a George W. Bush appointee, in a dissent from the full circuit’s en banc travel ban decision. Four other conservatives joined him in his commentary.
Bybee added: “Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.”
Law is often indefinite, experts say, and leaves judges from diverse backgrounds and experiences to fill in the gaps to provide clarity.
“I think we have courts of human beings,” said Wendy Coats, an appellate attorney in San Francisco. “This isn’t an algorithm.”
It’s true that 18 of of the 25 human beings who sit full-time on the 9th Circuit were appointed by Democratic presidents, thanks to an expansion of the busiest appellate court in the country when Jimmy Carter was president. The eight cases from the October 2015 term that were either reversed or vacated showcased divergent views of law between a 9th Circuit court – with its predominant Democratic disposition – and the Supreme Court, where a majority of Republican appointees prevailed until the February 2016 death of Antonin Scalia.
In each of the eight, the 9th Circuit took what would be seen as traditionally liberal positions on issues such as workers’ rights, environmental and consumer protection, and the constitutional rights of prison inmates and criminal defendants. Just as straight down the line, the Supreme Court tilted conservative in opinions that favored big corporations, small business, states’ rights, and law and order.
In addition to backing Sachs in her consumer action, the 9th Circuit also sided with service advisers from an Encino car dealership who wanted to be paid overtime. They found in favor of retired stockholders from pharmaceutical giant Amgen, Inc., who challenged the company’s fiduciary decisions, and they let a Virginia man go forward with a lawsuit against the Spokeo online search engine when it published private information about him that he said was inaccurate. The circuit also ruled against a moose hunter who motored into the Alaskan wilderness on a hovercraft after he challenged the National Park Service when it ran him out. In three other cases, the circuit sided with criminal defendants on procedural questions.
Sachs’ lawsuit highlights the complexities contained in litigation that ascends to the highest levels of the federal system. Her attorneys’ views of the Foreign Sovereign Immunities Act, and the 9th Circuit’s holdings in their favor, didn’t exactly wander into a legal netherworld. Two other appellate districts already had established precedents similar to the one the 9th used on Sachs’ behalf.
The Supreme Court majority, of course, outranks the circuits and always gets the final say. It may interpret the law completely differently.
“They call these things opinions for a reason,” said Mark C. Rifkin of New York City, another veteran appellate lawyer.
Sometimes they’re not even final, even in the case of the Supreme Court. Of the eight cases that factored into Trump’s critique of the 9th Circuit, four of them were sent back to it, and decisions are pending on three of them. The fourth remand in the Amgen lawsuit was returned to the trial court in Los Angeles, where the drug company settled with the retirees by paying them $2.5 million.
The Sachs case
Carol Sachs called it her “glass and cowbell tour” of Europe. She’d been to the continent as a child and had a sister who lived in England. She wanted to revisit it and see her sister while checking out the glass and crystal factories of Venice and Prague and a bell foundry outside Innsbruck.
Underneath her search for good times, she was trying to work through grief. Her husband, Scott Lofgren, an emergency medical technician, had a passion for helping people. On rainy nights, he used to pack up his car with emergency gear and roam the freeways on his own time, looking for motorists in distress. One night in December 2005, he was lighting flares around a car that had crashed on Interstate 80 in Albany. Another driver struck and killed him. Lofgren was 43.
Sachs hoped the tour would relieve some of the grief and remind her “that there were new things in life and there were things I wanted to do.”
Her trip was wrapping up when Sachs checked into the Innsbruck train station on her way to Prague. Her train ran late, and Sachs headed to the platform to stretch out and rest. Around 2 a.m. on April 27, 2007, she looked up and saw that her train had arrived.
Alone on the platform, Sachs rose and walked from the back of the train toward the front, looking for her car. She does not recall seeing a conductor.
As Sachs walked along the platform, the train began to pull away. “What I see is my bed going away,” she said. Carrying two backpacks, she jumped onto some stairs on the moving train. She does not remember falling into the empty space between the platform and the train, only the nightmares.
She remained hospitalized for six weeks in Innsbruck, before her father flew her home to California, to another hospital bed in Walnut Creek, where she learned how to sit up again. Two months later, she made it back to her mother’s house in Berkeley.
A secretary since 2001 with the Environmental Protection Agency, where she still works in the San Francisco office, Sachs’ federal health insurance paid her $500,000 in medical bills. “There wasn’t much fuss about it,” she said, although she did receive notices from the insurance company requesting some payments.
She had friends who knew a lawyer in Lafayette, and on April 7, 2008, he filed the suit against the Republic of Austria and and its government-owned railroad company, OBB Personenverkehr AG, in U.S. District Court in San Francisco.
Sachs’ claim tried to wiggle through a wormhole written into the 1976 Foreign Sovereign Immunities Act, through the exemption that allows for lawsuits against foreign governments if their alleged wrongful conduct was “based upon commercial activity carried on in the United States by (a) foreign state.”
Sachs’ lawsuit said that Austria lost its immunity when it sold her a Eurail pass through a Massachusetts travel company.
Austria’s attorney, Juan C. Basombrio, of Irvine, argued in court papers that the commercial activities exemption did not apply because Sachs’ injuries were “based upon events in Austria,” not on her online purchase of the Eurail pass in San Francisco.
In his ruling on Jan. 28, 2011, U.S. District Judge Vaughn R. Walker in San Francisco sided with Austria, so Sachs’ lawyer, Geoffrey Becker appealed to the 9th Circuit, where a three-judge panel also agreed with the country. Becker, who declined to comment for this story, asked for a rehearing, got one, and the full circuit reinstated the lawsuit.
Circuit Judge Ronald Gould wrote for the majority. His Dec. 6, 2013, opinion said that the Austrian railway agency “engages in commercial activity in the United States, and thus is not immune from suit ... when it sells tickets in the United States through a travel agent.” Sachs, he said, “showed a nexus between her claim and the sale of the Eurail pass.”
Austria appealed. The Supreme Court took the case, and in the end, the outcome turned on a failed lawsuit filed 35 years earlier by a Florida man who had been beaten and tortured in a Saudi Arabian jail.
Sachs did not attend oral arguments at the 9th Circuit in San Francisco, nor did she travel to Washington, D.C., to watch the Supreme Court proceedings that ultimately would add to the 9th Circuit’s reputation as a liberal-leaning court.
“I kept myself apart from the court case as much as possible,” she said. “I didn’t want to be living it every day. I did not want to be wrapped up in it and have it be some big deal in my life.”
She didn’t read any of the decisions, and she had no idea that her case hinged on what happened to Scott Nelson in Saudi Arabia’s Al Sijan Prison.
Nelson, a systems monitoring engineer, saw an advertisement in a trade journal about a job at the King Faisal Specialist Hospital in Riyadh. Four months after he got it, Nelson claimed that he spotted fire hazards in the hospital. He said that hospital officials told him to ignore them.
When he didn’t, he claimed Saudis threw him in jail and tortured him. His lawsuit said that one Saudi official told Nelson’s wife that if she had sex with him, they’d let her husband out of jail.
It took the intervention of U.S. Sen. Edward Kennedy to get Nelson released, according to a 1986 newspaper account.
Nelson and his wife filed a federal lawsuit in Florida, where a judge threw the case out under the Foreign Sovereign Immunities Act. Nelson appealed, and found better luck with the Atlanta-based 11th Circuit, which held Nelson’s recruitment by a sub-agent working for Saudi Arabia in the United States qualified for the commercial activity exemption. From Atlanta the Nelson case went to Washington, where, in March 1993, the majority of the Supreme Court tossed it out again.
Supreme Court Justice David Souter, now retired, wrote for the majority that a lawsuit seeking the exemption required “something more than a mere connection with, or relation to, commercial activity.”
In a published dissent, retired Justice John Paul Stevens disagreed. “(W)hen a foreign nation sheds its uniquely sovereign status and seeks out the benefits of the private marketplace,” he wrote, “it must, like any private party, bear the burdens and responsibilities imposed by that marketplace.”
Getting back to Sachs, 9th Circuit Judge Gould suggested that the same principle cited by Stevens applied to Sachs’ purchase of the Eurail pass. Buying the ticket, Gould said, “was the start of Sachs’ tragic misadventure.”
But in writing on Dec. 1, 2015, for the unanimous Supreme Court that overturned the 9th Circuit, Chief Justice John Roberts said that all of Sachs’ claims “turn on the same tragic episode in Austria.” Citing Souter’s opinion in the Nelson decision, Roberts said the sale of the Eurail pass made up only one element of the claim, and that “there is nothing wrongful about (it) ... standing alone.”
For the purposes of Sachs’ relief, Roberts said “the essentials” of her case “are found in Austria.”
Nothing really stopped Sachs from filing the suit in Austria, except that she didn’t know any lawyers over there, it would have cost a lot, and her damages would have been limited to a few hundred thousand Euros. And she didn’t have legs.
So she never sued in Austria, and she received nothing for her injuries.
Sachs said she would have liked to have seen the case decided on its merits rather than on a procedural matter.
“It was still (in) pretrial motions,” she said of its termination in the multi-court legal wrangling.
On a recent evening at her mother’s house, Sachs struggled to arrive at some last words about whether justice was achieved in her case. Rather than case law, she deferred to a poet, Rudyard Kipling, for a final account of her own circumstances:
If you can make one heap of all your winnings / And risk it on one turn of pitch-and-toss, / And lose, and start again at your beginnings / And never breathe a word about your loss; / If you can force your heart and nerve and sinew / To serve your turn long after they are gone, / And so hold on when there is nothing in you / Except the Will which says to them: ‘Hold on!’