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In Garrett v. Circuit City, the Fifth Circuit Court of Appeals (New Orleans) threw a Marine Corps Reserve captain out of federal court on his claim that he was fired by Circuit City because of his military status two days before the Iraq war began. Because Capt. Garrett had not opted out of a companywide mandatory arbitration policy, the court concluded that he had to take his claim to private arbitration. It rejected Garrett's argument that a 1994 federal statute, precluding soldiers from being fired for serving or being denied the right to sue in federal court, was trumped by the arbitration policy. While enforcing private arbitration agreements is (used to be?--see my column "The Flaws of Arbitration") a good policy, protecting rights of armed-forces personnel seems like a good exception.

As we know, arbitration means no jury trial, no appeal, limited discovery, less than strict application of the law and arbitrators who sometimes are inclined to "split-the-baby." Perhaps this is OK in a complex business dispute, but when the question is whether a veteran was fired because he or she served their country, this is unfair treatment. Congress should amend the 1994 legislation and make this clear to the courts.

A Qatar citizen, Al-Soleh Kahlick al-Marri was a resident legal alien in the United States in 2003 when he was charged with violating several federal criminal statutes. Before trial, these charges were voluntarily dismissed with prejudice by the government, and al-Marri was transferred to U.S. military custody as an "enemy combatant."

Al-Marri spent 16 months in isolation in a military brig and almost four years in military confinement with no trial. Eventually, his federal habeas corpus petition made its way to the Fourth Circuit, which proceeded to disentangle the Constitution and statutory rights of habeas corpus (the right to challenge illegal detainment) from Congress' Military Commissions Act and the Bush administration's Combatant Status Review Board.

In the end, the court held that, at least for citizens and legal resident aliens on American soil, the Constitution's protections of individual liberty trump the executive's need to fight terrorism.

While these two rulings are specific and interesting in themselves, there's an overall theme: The federal appellate courts are clearly where the action and power are. So, to the extent you have control over where you litigate, it's critical to analyze the law of the various federal circuit courts because it can differ dramatically--sometimes even diametrically. Selecting a district court in a favorable circuit can provide a distinct advantage.

PHILIP G. KIRCHER is co-chairman of the commercial litigation department at the law firm of Cozen O'Connor.

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August 1, 2007

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