Appellate Law & Practice has moved. You can find our new and improved blog (complete with categories that organize decisions by circuit) here. I will upload the original posts from this blog sometime within the the next couple of weeks.

CA11 -- State Concession of Timeliness Not Dispositive in Habeas Case

The Eleventh Circuit yesterday in Day v. Crosby held that, notwithstanding the State's concession that a habeas petition was timely filed, the district court could sua sponte dismiss the petition if it was in fact late. The Court held that the AEDPA mandates a distinction between habeas cases and ordinary civil cases, where a defendant can waive the statute of limitations.

In other news pertaining to the Eleventh Circuit, it seems that someone in the Supreme Court cert pool is keeping an eye on habeas decisions from Atlanta. The Supreme Court yesterday granted cert in Dodd v. U.S. (Eleventh Circuit opinion at 365 F.3d 1273), involving another issue of timeliness of habeas petitions. For more, see the SCOTUSBlog here. Last Term, the Court decided Castro v. U.S., concerning successive sec. 2255 motions, and pending now is Johnson v. U.S., which is also about the time limits on filing habeas petitions. I don't really suggest that the Court is paying special attention to the Eleventh Circuit's habeas decisions; I'm sure the coincidental timing of these cases just looked like a pattern. But the cert grants in Dodd, Castro, and Johnson all came because of circuit splits, and note that there is a split on the issue presented in Day. So maybe the Court is simply waiting until the Eleventh Circuit has its say on various circuit splits before deciding the issue is ripe for review. If it grants cert in Day, we'll know something is up!

CA4 -- New Website Feature

No published opinions from the Fourth Circuit for a while, but I thought I would point out a neat new feature on the court's website. The main opinions page is pretty user-friendly, and you can click right to opinions released today, this week, or last week. And now those pages include not only an indication of whether the case was argued and what the outcome was (e.g., reversed, affirmed, dismissed, etc.), but also a designation of what kind of case it is. See today's opinions page for an example. Sure, "civil" isn't the most descriptive moniker, but it makes it easy to figure out which cases are habeas or other post-conviction cases and which are ordinary civil cases or prisoner civil rights cases, which isn't always clear from the caption. (And it's much easier than trying to remember the court's docket numbering system or the names of the state corrections officer defendants.) Kudos to the Fourth Circuit for making it easy to find the type of case you're looking for.

It suffices to warn a criminal defendant that he does not know what he is doing but we can no longer say, "I was investigating because I was told Defendant is a crook."

The Sixth Circuit ruled today that Farretta warnings are not necessary when a defendant merely supplements his counsel's examination in hybrid representation and that Crawford v. Washington, 124 S. Ct. 1354 (2004) requires reversal where police officer testifies regarding statements of a confidential informant that focused the officer's criminal investigation on the defendant, but government refuses to reveal identity of the confidential informant. See United States v. Cromer, No. 02-2394.

CA2 (11.29.04)

In yesterday's only opinion, the Second Circuit held that Blakely v. Washington did not create "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," such that a second or successive habeas petition based on a purported Blakely violation would be permitted.

CA1 (11.30.04)

Mandamus? Removal? I can’t tell !

Although I am not sure exactly what the First Circuit did, AP reports here that with regard to what appears dueling views on whether an arguably late-filed removal was valid:

...it emerged that the First Circuit Court of Appeals in Boston authorized Dominguez to continue hearing the case and left it to his discretion whether to respond to the resource of “mandamus” that the PDP filed in order to return the controversy to the Supreme Court.

As you may remember, Tom Lincoln provided a summary of the issue here. If someone has a link (or a copy) of the First Circuit’s order, the comments box awaits.

And David A. Beck of Jones Day writes some commentary here on In re Holyoke Nursing Home, No. 03-1933 entitled 1st Circuit Permits Recoupment of Medicare Overpayments.
It sort of has a nice discussion of the difference between setoff and recoupment which I completely disagree with, but I can't say why in this forum. Update: For some reason, this article keeps getting deleted, but I think the version I pointed to works.

California (11.29.04)

People v. Seel, S106273, the Court held that Apprendi’s double jeopardy protections preclude a retrial of the premeditation penalty provision after an appellate court has held there was no evidence of premeditation. The defendant, Seel, was convicted of attempted premeditated murder and sentenced to life in prison with parole, plus 20 years. But an intermediate appellate court held the evidence did not show premeditation and remanded for retrial of the sentencing allegation. The Court today found, though, that because premeditation is part of the “commission of the offense,” retrial would effectively place the defendant in jeopardy twice for an “offense” greater than attempted murder.

In People v. Ramos, S030956, the defendant pled guilty to three counts of murder as well as felony possession and other firearm offenses. The jury sentenced the defendant to death. In this automatic appeal, the defendant raised several arguments, including an argument that his propensity towards violence, paranoia, and death wish made him incompetent to plead guilty. The California Supreme Court upheld all of the trial court’s findings and affirmed the sentence of death.

California Supremes Deny Peterson's Petition

The California Supreme Court is reporting here that it has denied Scott Peterson’s petition for an emergency stay of penalty phase proceedings, scheduled to start Tuesday morning. Mark Geragos, Peterson’s lawyer, requested a new jury and change of venue. In his brief Geragos argued that when jurors were released from sequestration, the community congratulated and celebrated them like “members of a winning Super Bowl team.” Consequently, “any ‘lingering doubt’ one or more jurors might have had about Mr. Peterson’s guilt, a doubt which defense counsel could invoke at the penalty phase trial, was extinguished” and the jury is “presumptively disabled” from determining whether Scott Peterson should receive the death penalty.

For more information, check out coverage at CNN and the San Francisco Chronicle.

Ashcroft v. Raich Oral Argument Report

Timothy Lynch of the Cato Institute attened the oral argument today in Ashcroft v. Raich and has presented his assessment here.

CA1 (11.29.04)

Hate Christmas? Love Pot? Take the T.

One opinion today. Ridley v. MBTA, 03-1970, 03-2285.

In short, people who want to legalize pot and a religious group which does not like Christmas (not the Jehova’s Witnesses) were denied the ability to put up signs advertising for their cases on the “T” in Boston. You can read their websites here here: Anti-Christmas; Pro-Pot. Unfortunately, the T had a set of guidelines that read kept changing, but for our purposes they prohibited advertisements that:

... demeans or disparages an individual or group of individuals. For purposes of determining whether an advertisement contains such material, the MBTA will determine whether a reasonably prudent person, knowledgeable of the MBTA's ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of, an individual or group of individuals.

The Court held that advertising space on the T was not a public forum. However, the restrictions were still unconstitutionally viewpoint based as to the marijuana-legalizers, but the restrictions were constitutional as to the Chistmas-hatas, because rather than supressing religious beliefs the guidelines “maintain a certain minimal level of decorum in all advertisements.” The court rejected a vagueness challenge, holding that the MBTA is entitled to exercise its own judgment in interpreting its own regulations (within reason) and the “MBTA is also entitled to some discretion in determining which advertisements are likely to alienate ridership and cost it revenue”

On the other hand, the court held that an advertisement with a picture of a girl (with a baseball cap) who appears to insinuate that *gasp* marijuana is somehow less dangerous than other drugs is encouraging the commission of a crime. (The kid was not holding a joint. Don’t worry.) The witnesses in this case appeared to base their testimony on a belief that these ads made kids think that smoking marijuana was not bad or "less" criminal. In fact, under Massachusetts law, smoking pot is not illegal. Possession is. GL ch. 94C, § 34.

The court, after conducting an extensive analysis of what constitutes viewpoint analysis, and what you can sort-of say to teenagers concluded that “The MBTA's justifications for not running these advertisements are sufficiently implausible that on the totality of the evidence we conclude that the MBTA has engaged in viewpoint discrimination.”

The blog Media Law, reports on this case here.

So, I guess we have to start thinking about whether there is a rational basis in protecting people from insult or offense.

And in other news...

• Shocking nobody, the Supreme Court denied cert., with this order, in Largess v. Supreme Judicial Court, 04-1621. This decision earned the First Circuit the designation of “Extremely Pro-Gay” from Bill Myers, who, as his websites states, is gay. The Washington Post, which, as a newspaper, can't be gay or straight, reported on this non-startling development here.
• Orin Kerr, on behalf of the EFF, files a supplemental brief in Councilman . (Thanks Macondo Law).
• The Boston Globe reports here that on February 7, 2005, court, sitting banc will hear reargument in Comfort v. Lynn School Committee, No. 03-2415 in which the court held that it is unconstitutional to restrict transfers between schools based on race.
  

Judge Rogers waxes eloquent, and a Ruger, Mini 14 Ranch Rifle is a semiautomatic assault weapon

The Sixth Circuit held that a Ruger, Mini 14 Ranch Rifle is a semiautomatic assault weapon as defined in 18 U.S.C. § 921(a)(30). See United States v. Oliver, No. 03-5586. The defendant had argued that the his weapon did not meet the statutory definition's requirement that a pistol grip be ""beneath the action of the weapon" because his gun's pistol grip, while lower than the action, was not directly under the action of the weapon. Judge Rogers cited Oliver Wendell Holmes's poem Old Ironsides an example of the permissible uses of beneath:

Ay, tear her tattered ensign down!
Long has it waved on high,
And many an eye has danced to see
That banner in the sky;
Beneath it rung the battle shout,
And burst the cannon's roar;–
The meteor of the ocean air
Shall sweep the clouds no more!


Cop may reasonably push a resident into the jaws of a police canine

In a decision likely only published on account of Judge Moore's partial concurrance and partial dissent, the Sixth Circuit held that qualified immunity protects from 1983 liability a police officer who went to execute an arrest warrant with a dog trained to pursue fleeing subjects as well as another police officer who inadvertently brushed a resident of the premises into the dog's teeth. See Dunigan v. Noble, No. 03-1304.

The Appellate Practice Bookworm

Over this long thanksgiving weekend, we should give thanks that it will be over soon, and we can get back to real law stuff. Not just blogs and academic papers.

From SSRN, we have Steven Shavell, The Appeals Process and Adjudicator Incentives, Harvard Law and Economics Discussion Paper No. 485. http://ssrn.com/abstract=623284

In this article, Professor Shavell claims that the appeals process is great because…

[i]t leads to the making of better decisions, because it constitutes a threat to adjudicators whose decisions would deviate too much from socially desirable ones. Further, it yields this benefit without absorbing resources to the extent that adjudicators can anticipate when appeals would occur and would thus make decisions to forestall the actual occurrence of appeals.

It is a good paper, and a good read (and if you grit your teeth and think of England, the math is not that hard), but he seems to be pretty naïve about the process of decision-making in trial courts. A lot of decisions made by trial-level judges are not made simply to avoid a reversal, they are made to generate a clear record for the court of appeals, to lower the chance of a remand.

Next he seems to forget that many appeals come about after jury trials, and perfunctory motions for new trials. (And, in some cases, appeals are mandatory.) Since those motions basically preserve the record, most of the time they are denied. Indeed, at that point a trial-level judge has a disincentive to grant the motion as, he will likely have to sit though another trial again, thereby pissing everyone off at him.

The article does not deal with the issue of standards of review, and the ability that trial judges have to “set issues” up for appeal, generate clear or ambiguous records, or insulate the record from appeal.

However, if people were to take this seriously, maybe this article will provide another good reason to do away with S-cases under 26 U.S.C. § 7463 in the Tax Court or at least make them subject to appeal.

Anyway, read it. Now. While it is hot. When you are done with that read more Rehnquist gossip at SLP here.

Appellate Bloggerhood

Since not too much will be happening today, it might be worth your time to get to know the various characters in the appellate and tax bloggerhoods.

• The most recent entry in the blog of the Puerto Rico Association of Criminal Defense Lawyers provides a link to the oral argument in Shepard v. US before the Supreme Court. Mr. Lincoln writes that "Shepard is the ACCA [Armed Career Criminal Act] case in which the First Circuit (at least in my view) went beyond the rule established by the Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990) by looking at [certified copies of] police reports to determine whether defendant's prior convictions were for generic burglary." The blog also includes copies of the briefs for both sides. The First Circuit's decision is found here; and some other discussion from Mr. Lincoln can be found here.
  
• Continuing my sucking-up to the blog of the Puerto Rico Association of Criminal Defense Lawyers, I came across this analysis of United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004) in which the court upheld the decision of a district court not to grant the government’s motion for a continuance when the government, among other things had deported its own expert witness. A lot of big words are used in the decision, but since the defendant probably doesn’t care why he is free, it does not both me too much.
• A blog called Constant Struggle also notices that courts of appeal are reversing the decisions of immigration judges more and more lately.
• Those who would seek to keep Christian iconography in courts and schools appear to be divided over whether over 42 U.S.C. § 1988(b) should be repealed, or somehow congress should strip the jurisdiction of the federal courts and perhaps state courts. Not that this argument is anything new, but it is always fun to see it made to non-lawyers, in a paper called World Net Daily here . (There are a few factual errors in it, but what can you expect?)
• For those of you who like tax scam celebrity lore, (and, quite frankly, who doesn’t?), the Tax Prof Blog, notes first here then here that tax fraud promoter Jerome Schneider 1) lead police on a chase; and 2) had Sandra Bullock as an client. If you are like me, and didn’t know who Ms. Bullock is, you can read about her here.
• The New York Times has an article about Bronx County Criminal Court Justice Ethan Greenburg's attempted to interpret Crawford, and ruled that 911 calls are not testimonial, here. See BNA's discussion here.
• Sentencing Law and Policy has a post on state Blakely decisions here.
  

CA11 -- No "Confrontation" if Witnesses Are Overseas

In a very interesting opinion, the Eleventh Circuit yesterday in United States v. Yates reversed a conviction because two Government witnesses testified via television from Australia. The Court held that the procedures used here (the witnesses were in a room in Australia, and all the trial participants, including the clerk who swore the oath, were in the U.S.) were not sufficient to meet the Craig rule and survive a Confrontation Clause challenge. It would be interesting to see the Court's reaction if the set-up had mirrored the one in Craig, where the lawyers and the judge were in the same room as the witness. The opinion is not very long, and is very well written by Judge Cox. Chief Judge Edmonson concurred and suggested that the witnesses might not even have been under oath at all, given that the clerk swearing them in was in the U.S. and wasn't able to swear oaths in Australia. Very much worth reading.

Fla. Supreme Court -- Curfews Not Cool

Last week the Florida Supreme Court voted 4-3 in State v. J.P. to strike down curfews for minors in two Florida cities, citing the federal constitutional right to travel, and the Florida constitutional right to privacy. Matt Conigliaro of Abstract Appeal points to some very interesting issues raised by the opinion.

Hamdan Thanksgiving update

The SCOTUSblog has a Thanksgiving post entitled "Government opposes Hamdan fast-track request."

CA1 (11.24.04)

Six opinions today from Boston.

But first, Tom Lincoln provides some insight as to just how quickly Puerto Rico’s election disputes will make it to Boston.It seems that the District Court and the Puerto Rico Supreme Court disagree on whether or not a petition for removal was timely filed.So, this will be fun. See, also, the Washington Post's article.

Abortion: The Topic We all Love!

The biggest news appears to be Planned Parenthood v. Heed, 04-116, in which the First Circuit upheld the decision of the district court that invalidated New Hampshire’s abortion statute that required the parents of minors to be notified whenever their precious daughter has an abortion. This seems like a pretty typical example of an abortion statute that failed.

In essence, if a girl gets pregnant, and doesn’t want to tell her parents she can ask a judge for permission to have an abortion. If the judge finds that the “minor is mature and capable of giving informed consent to the proposed abortion” then she can have it. But if she is immature and incapable, then she must raise any future child, or move to another state alone.

This seems like a rather straightforward undue burden case, which I have seen so many times in the past, that it isn’t really worth any analysis. People who live and breath abortion rights (or non-rights), I am sure, are talking about this over the thanksgiving dinner table.

See additional coverage in The Boston Globe, and The Union Leader. And, the ACLU gloats here.

Town Solicitors Violate the Petition Clause, too.

In Powell v. Alexander, No. 02-2218, the court affirmed a judgment which included punitive damages against the town solicitor, holding that 1) the factual determinations were not clearly erroneous; and 2) he due process argument failed properly because neither the complaint nor the course of later proceedings put her on notice that she would be held personally liable.

The facts of this case are quite interesting. Powell was a police officer who originally sued claiming that he had been improperly discriminated against. He settled, and as part of the settlement he would be returned to work after a physical examination. However, according to the District Court’s findings of fact, the city solicitor and city physician conspired to make it impossible for him to pass that exam. The District Court held that because of the police department’s internal politics, the solicitor and the doctor knew that “knew that if [he] was reinstated and thereafter filed another lawsuit, they would have to deal with it” and therefore, they were deliberately keeping him from fulfilling the conditions of reinstatement in retaliation for filing it. Such hindrance constituted an unconstitutional burdening of the right to petition.

Since the lower court had set out a very rigorous fact-finding, the analysis for punitive damages came quite easily as the defendant’s state of mind became relatively apparent, and she exercised a “’reckless or callous indifference to" Powell's First Amendment right.’”

Finally, rejecting the 8th Circuit’s approach in Johnson v. Outboard Marine, the court held that the defendant was adequately on notice that she was being sued in her personal capacity, as the “substance of the pleadings” governs whether someone named in the complaint is deemed to be on notice of whether they are being sued in their personal capacity.

Engine Engine Number 1170

Next, Howard v. Surface Transportation Board, No. 04-1800, deals with 11 U.S.C. § 1170. This is a pretty rare issue.

It may come as a shock to you, but, in general, if a railroad wants to stop running a railroad line, they can’t just do so at will. Instead, they have to ask permission to “abandon” the line from the the Surface Transportation Board (STB), the successor to the earlier Interstate Commerce Commission (ICC). 49 U.S.C. § 10903 See The STB's description. Interestingly, third parties can petition for the abandonment of a railroad line. The exception, it seems is if the railroad goes bankrupt. In that case, it can avail itself of 11 U.S.C. § 1170, and ask the Bankruptcy Court for permission, but 49 U.S.C. § 10903, still allows the STB to play an advisory role and not issue a final judgment.

In this case, the “debtor railroad” was before the bankruptcy court (pursuant to an involuntary petition) and asked the court for to abandon the interests of a third-party “in an easement and trackage rights over lines once owned by the debtor at the time of bankruptcy.” (Easements over railroad lines are considered contractual rights under 11 U.S.C. § 365 ). The Bankruptcy Court appears to say that it did have the power to stand in the shoes of the STB, a mgaistrate, District Court, and First Circuit all held that unless the holder of an easement was actually a party to the action, then the bankruptcy court could not step into the shoes of the STB and abandon those easements.

It is worth noting that the bankruptcy trustee petitioned the STB directly, and had issued an order in another matter, which the court affirmed in Howard v. STB, 04-1819 affirming the STB decision.

For pictures of the railroad in question click here.

41(d) Did Not Requires a Showing of Legal Prejduice

I don't see why this case was published, and other ones were not.

US v. Antrim, No. 03-1558, affirms the conviction (following conditional guilty plea) where the defendant argued that 1) the Boston police did not wait long enough before between the “knock” and the “break in”; 2) the warrant was improperly served; and 2) a gun found in plain view should be suppressed because the police had an received an unreliable tip a few days earlier about the gun, but this tip wasn’t put into the affidavit for the search warrant.

The court found that, in total a period of 25 to 40 seconds elapsed between the initial announcement and the break-in, so that complied with United States v. Banks, 540 U.S. 31, 38 (2003). The defendant raised the argument that occupants a premises should be given more time if they are not actual accomplices, as they are less likely to destroy the goods, but the court rejected that.

The defendant raised a old-Fed. R. Crim. P. 41(d) (1983) issue, arguing that, the Boston police had not properly served the warrant. (They held it up for the innocent occupant, and apparently left it on the kitchen table, but this fact is disputed.) The court dismissed this by saying: 1) it doesn’t apply to searches that are not federal in character; and 2) a showing of prejudice to the defendant is required. New R. 41(d) (2002) doesn't have this requirement.

Finally, as to the gun, the court pointed out that since it was found it plain view (in the house) it didn’t matter whether or not the police even knew about it before they had begun the process of obtaining a warrant and whether any tips were reliable as they did not seek a warrant based on any unreliable tips. So, “Specification of the additional item could only permit the officer to expand the scope of the search.”

Too much Informations

In US v. Sanchez, No. 04-1087, the defendant argued that the mandatory minimum sentence provision of 21 U.S.C. §§ 841(b) and § 851 does not apply to him because his prior state convictions were not prosecuted by indictment nor did he waive indictment for those offenses. The court disagreed, noting that all the other federal courts have interpreted § 851(b)’s language that “An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” refers t the present indictment, not the earlier convictions which are used to trigger the mandatory minimums, and there is no reason to apply the “rule of lenity.” The court appears to have relied on the Ninth Circuit’s interpretation in United States v. Espinosa, 827 F.2d 604, 617 (9th Cir. 1987).

Too late

US v. Glenn, No. 04-1395, involves a direct appeal from a denial of a motion for a new trial that was filed seven months after the conviction. The convicted guy raised an ineffective assistance claim, the court points out that “the proper vehicle to raise such a claim is a collateral proceeding under 28 U.S.C. § 2255”

Interestingly, the trial court didn’t appear to tell the defendant of his right not to testify. The court shot him down by saying:

Glenn asks us to overturn an earlier decision of this court in Siciliano v. Vose, 834 F.2d 29 (1st Cir. 1987), which held that the trial court is not constitutionally required to advise the defendant of his right to testify or to procure an express waiver of that right from the defendant. Id. at 30. The reasoning of Siciliano, that such a rule might unduly pressure the defendant to waive his "more fragile" constitutional right not to testify, retains force. Id. at 30. Moreover, only an en banc court or intervening controlling law may reverse the rule established by an earlier panel. See Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 160 & n.4 (1st Cir. 2004). Even were we free to do so, we would not.

Well, I guess you can't argue with that logic.

Finally, the court rejected his Blakely claim, saying that he didn’t even show how he was prejudiced.

CA9 (11.24.04)

The Ninth Circuit today denied rehearing en banc of Thai v. Aschroft over a dissent signed by five judges and written by Judge Alex Kozinski.
Kozinski's dissent accuses the panel of overextending Zadvydas v. Davis (construing section 1231(a)(6) as authorizing the AG to hold an alien for no more than six months, but not dealing with aliens that pose a risk to the public or security of the US) to the point of dangerously undermining the federal government's immigration regulation efforts.

The Supreme Court, [in Zadvydas,] confronted with a very broad statute, narrowed its scope to avoid unconstitutionality, but the Court’s method of narrowing is not the only permissible one. The AG, pursuant to his statutory delegation of regulatory authority, has selected a different method of conforming the statute to the requirements of the Constitution . . . . Given the plenary authority of the political branches in the field of immigration, . . . the judiciary must be particularly careful not to cut off the AG’s earnest effort to fulfill the function entrusted to him by Congress within constitutional limits. The panel’s opinion takes the opposite approach, perversely leaving the AG, when acting pursuant to authority expressly granted to him by Congress, with fewer powers to detain undocumented aliens who are mentally disturbed and dangerous than the states have in detaining dangerous U.S. citizens.

Some have noted that the SCOTUS may find this of interest.

I Shiver with Anticipation

Professor Berman reports here that:

I have on very good authority that the Supreme Court will be issuing at least one opinion on Tuesday, November 30. Thus, it is highly possible that we are less than a week away from a decision in Booker and Fanfan.

CA5 (11.23.04)

Constitution doesn't always protect against cronyism

In Alexander v. Eeds, the Fifth Circuit considered the § 1983 claims of police lieutenants who were denied promotion to the rank of narcotics service captain, allegedly because of cronyism and retaliation for protected speech. Among other things, the plaintiffs alleged that an examination used to select candidates for promotion was rigged to favor members of a social organization, the "Houston Bar-B-Que Club," to which the plaintiffs did not belong.

The district court granted summary judgment dismissing the claims of five plaintiffs, but denied summary judgment (based on qualified immunity) on the claims of the other two. The Fifth Circuit affirmed dismissal of the five, on grounds that their speech at issue concerned private matters, not public matters, and so was not protected. Held the court,

While the facts of this case give us great pause in as much as they reflect a very troubling promotion process, reeking of cronyism, within DPS, because the § 1983 actions are brought to us in the context of alleged First Amendment violations, the inquiry necessary leads us to conclude that Plaintiffs' claims are unsupported. Because the speech of [the five] was not protected by the First Amendment, the district court correctly gratned summary judgment on these § 1983 claims.

The district court also granted summary judgment for the five on the alternative ground of qualified immunity, but denied summary judgment on qualified immunity on the claims of the other two. With respect to the five, the Fifth Circuit affirmed. Since those plaintiffs failed to allege speech that was constitutionally protected, they failed to allege a violation of an established right. As for the remaining two, the Fifth Circuit reversed as to one (dismissing his claim), but affirmed as to the other (allowing his claim to stand). The decision in each plaintiff's case turned on whether the speech in question was protected, i.e., whether it addressed a matter of public concern.

Finally, the Fifth Circuit affirmed the district court's rejection of plaintiffs' equal-protection claim, on grounds that the Equal Protection Clause does not protect against cronyism:

"While we do not approve of promoting friends over others who may have superior objective qualifications, we cannot say that such a practice is not rationally related to a legitimate governmental objective. See Kotch v. Bd. of River Port Pilot Comm'rs., 330 U.S. 552, 563 (1947) (upholding nepitistic system of appointing State-employed pilots as rationally related to the legitimate governmental interest of "morale and espirit de corps")."

Expert testimony not always needed to prove design defect

In Malbrough v. Crown Equipment Corp., the Fifth Circuit held that under Louisiana law, a products-liability plaintiff does not necessarily need expert testimony to establish a design defect. The district court had granted the manufacturer's motion in limine to exclude plaintiff's expert because plaintiff failed to timely meet discovery deadlines. The manufacturer then moved for summary judgment, on grounds that the Louisiana Products Liability Act requires expert testimony to establish a prima facie case of design defect. The district court denied the motion, on grounds that a trier of fact could understand whether the design was defective without expert testimony. The district court and the Fifth Circuit granted the manufacturer permission to appeal, and the Fifth Circuit affirmed. The court found no Louisiana caselaw requiring that a plaintiff must always have expert estimony to establish a prima facie case of design defect. "Consequently, we hold that the district court did not err in refusing to recognize a per se requirement of expert testimony in all design defect cases under the LPLA."

CA2 (10.24.04)

The New York Court of Appeals today answered a series of questions prevoiusly certified by the Second Circuit regarding the standard to be applied in determining a reasonable fee award in discrimination cases where the plaintiff receives only nominal damages. In sum and substance, the New York court adopted the standard announced by the Supreme Court in Farrar v. Hobby.

(Thanks to How Appealing for the pointer.)

CA1 (11.23.04)

(Update: Nadherny v. Roseland and some news tidbits appears at the bottom)

Five Opinions Today.

In US v. Carrasco-mateo, No. 03-1553, Judge Selya utilized his vocabulary to hold that someone who probably doesn’t speak English too well was sentenced properly by the District Court after a guilty plea. Carrasco-mateo had been convicted in a New York state court, paroled to the INS and deported. Then he tried to sneak back into the US but he was caught. The base level of the sentence was eight under USSG §2L1.2(a), which was bumped up because of his prior conviction and sentence (over 13 months) under USSG §2L1.2(b)(1)(A)(i), and knocked down by USSG §3E1.1(a) for acceptance of responsibility. Moving across the grid, §4A1.1(d) bumped him up because of his illegal entry while on parole. Carrasco-mateo argued that because the comments to USSG §2L1.2, cmt. n.1(A)(iv) refers only to portions of criminal sentence that was served, not the portion of time in which he was paroled to the INS who then deported him. However, the court disagreed and held that the words “sentence imposed” refers to the time that the court imposed, even if he got out earlier and was paroled out of the country, and noted that “he appellant's reading would instead reserve the most severe punishment for those who -- because of poor behavior, ill fortune, or the inconsistent operation of parole in the several states -- happen to serve more time.”

(A number of blogs have noted that Judge Selya uses big words. I will probably make my rather obvious feelings about this practice known in the near future. Anyway, here is David Starkoff's discussion.)

Syed v. Ashcroft, No. 03-1715. In a scam marriage case, the court upheld the decisions of an IJ. Interestingly in this case, Mr. Syed has two wives. One which he divorced, and an IJ found such marriage to be fraudulent (because of fraudulent documents and because it did not have the “ring of truth” – whatever that means), and while he was awaiting deportation, his second wife “ filed an immediate relative visa petition on his behalf” which was approved. However, the IJ found that he was ineligible for an adjustment because of his prior scam marriage. As I have said earlier, expect more scrutiny of immigration cases.

Carcamo-Recinos v. Ashcroft, No. 03-2428, is also another upholding of an immigration judge, but in this case, the question is whether the petitioner should be given asylum. The petitioner was a former Guatemalan mayor who was, apparently, threatened by some people. The former mayor eventually lost the election and because a dairy farmer, but still seemed to be threatened by people. Despite expert testimony that he would be a “marked man”

The IJ denied relief, concluding that Carcamo had failed to prove either that the threats that he endured constituted persecution or that Carcamo harbored a reasonable fear of future persecution. As to past persecution, the IJ was persuaded by the facts that Carcamo was never harmed or directly confronted, maintained an active political career, traveled abroad and returned on numerous occasions, and did not establish a likely source of the threats. As to a fear of future persecution, the IJ emphasized Carcamo's travel abroad and that he and his family were never harmed. The BIA summarily affirmed the IJ's decision.

The Court affirmed, agreeing that what had happened was not really persecution under 8 U.S.C. §1101(a)(42)(A).

US v. Bezanson-Perkins, No. 04-1293, holds that hat a defendant who has given a valid Miranda waiver may not seek to suppress his later voluntary and uncoerced statements to the police on the grounds that (arguably) misleading statements by the police invalidated his Miranda waiver. The Court characterizes his argument as not being purely a Miranda one, but rather, an “arguing that if he had a lawyer, he would not have confessed, and was misled into confessing by the police statements.” For those of you who like to see how anyone, given the right amount of veggieburgers can be coerced into talking without a lawyer, this is a good read.


As promised, here is Nadherny v. Roseland, No. 04-1516, which is yet another bench-slap from the First Circuit over the proper standard for summary judgment. In short, the court cannot use other case law to take judicial notice of extrinsic evidence such as trade usage to interpret a contract.

Nadherny was hired by Roseland as a developer of various commercial properties. His contract, while apparently sloppily drafted, provided that he had a financial interest in each of the properties that he developed. In particular, the contract said “Your interest in such new projects will vest at the same time that the Roseland Entity's interests vest.” Yet, the contracts also stated that Nadherny was an “at-will” employee.

Nadherny was fired while some projects were still being built. Roseland said that he is not entitled to any interest in the projects, because its interest had not vested, and Nadherny disagreed.

The District Court concluded that there were no disputed material facts regarding the contract, and granted summary judgment to Nadherny, holding, as I see it, that the contract was not illusory, and therefore, Nadherny had some interest in nascent projects, and Roseland could not just decide the fire him the second before they were finished. Or, in the District Court’s Words, “If plaintiff's interests had been contingent upon continued employment, Roseland was bearing very little risk at all." According to Roseland, the District Court brought in extrinsic evidence by finding:

Taken as a whole, the language of the Contract and absence of a termination provision as to plaintiff's unvested real estate interests (construed against Roseland, which drafted the agreement), the circumstances leading up to the Contract, and the case law concerning analogous contracts all demonstrate that there is no genuine issue of material fact as to the interpretation of the Contract.

(emphasis added)

The Court of Appeals held that summary judgment was not proper on the contract claim because the language was ambiguous, and that looking to other first circuit cases to determine trade usage was improper, because “The parties did not agree to this procedure. Industry custom and practice was, instead, subject to dispute and, in the absence of evidence, could not be the subject of judicial notice.” They also pointed out that it was unclear as to whether the contract should really be construed against the drafter, as both parties were sophisticated, and both had done a really bad job of drafting this contract.

If I were on the court I would have addressed the issue of whether it is correct to construe an arguably illusory contract to be binding.

Another thing I realized is that the court doesn’t seem to discuss whether this why this should not have been resolved as a parol evidence issue. Indeed, if the parties were just so damn sophisticated, it is likely that they would have known the meaning that the first circuit had accorded these words in the past, and therefore, maybe the decisions of the first circuit could have come in as parol evidence (which is governed by state substantive law, which seems to be lacking in this opinion), and would come in under FRE 902, thereby eliminating any hearsay problems.

On the other hand, the District Court concluded that Roseland had not breached an implied covenant of good faith, because they had “submitted ample evidence of ‘concern over plaintiff's performance and that the risk they had taken in hiring someone with limited development experience was not working in their favor.’" The Court of Appeals affirmed.

And in other news...

Although not strictly appellate practice, the USSC released its 15-year report here, but since the FSGs are going to be the hottest issue in appellate practice, it is timely. And Feddie (of Southern Appeal) says he is really impressed with us. . As you will note, his blog has the word “appeal” in the title, and he used to clerk for an Appeals Court.

Mark Godsey on the Crimprof blog notes US v. Weed [insert joke here... dds], in which the tenth circuit held that it doesn’t violate due process to make insane acquittees prove, by clear and convincing evidence that they are no longer insane. Unfortunately, because I am not a member of BNA’s service, I can’t read the whole thing.

"Justice Suitor" on Greedy Clerks points us to the rumor mill, which tells us that Luttig may have violates some rules by working on certain cases he should not have because he was too fresh from the Supremes. If he did violate the rules, since everyone loves Luttig I think we should just change the rules to let everyone do what Luttig did. (By the way, the rule is Supreme Court Rule 7, which is also available on p. 8 of this pdf )

CA2 (10.23.04)

Four new ones so far today, although none are particularly ground-breaking. In Thai v. United States, the court denied as moot the petitioner's request to file a second or consecutive habeas petition; after supplemental briefing, the court determined that Thai's initial habeas petition did not count. The court, in coming to this conclusion, resolved an apparent question of first impression: "when a habeas petitioner voluntarily moves to withdraw a § 2255 petition and the district court grants the motion, under what circumstances should a later petition be considered successive for purposes of § 2255's gatekeeping requirements?"

In Playtex Prods. v. Georgia-Pacific Corp., the court affirmed a grant of summary judgment against plaintiff's trademark infringement and diluation claims. This appeal concerns Playtex's Wet Ones wipes and Georgia-Pacific's Moist-Ones. The court held that the two marks were sufficiently different to bar the trademark claims.

Next, in United States v. Singh, the court substantially affirmed the conviction of a doctor for health fraud and distribution of a controlled substance. The court reversed and remanded with respect to calculation of the loss amount for sentencing purposes, however.

Finally, for now, in Sprl v. Axtel, the court affirmed a denial of a motion to compel arbitration and a motion to enjoin litigation in Mexico between Axtel and its shareholder. How great is the name "Laif X Sprl," incidentally? Note that the late Judge Van Graafeiland was originally a member of the panel -- that the opinion was released two days after his death suggests to me that he was the holdout (either because he disagreed with the decision or because he simply hadn't signed on yet; either explanation is equally plausible, the case not being old at all).

More CERCLA Fun

The Sixth Circuit has released another opinion concerning CERCLA and Michigan NREPA, this time considering whether response costs were "necessary" under these statutes. See Milford v. K H Holding Corp., No. 03-1597.

Hamdan Leapfrogging to the SCOTUS

(see bottom for updates)

For those of you who did not hear the news, the SCOTUSBLOG reports that Commander Swift, Professor Katyal, and their supporting cast at Perkins Coie have filed at the Supreme Court for a “Petition for Writ of Certiorari Before Judgment” in Hamdan v. Rumsfeld. This case, as you know, "The District Court found [here] that the procedures established by the President's Military Order do not satisfy the requirements of the Third Geneva Convention as embodied in the UCMJ," the government appealed to the DC Circuit, but it has not been passed on by the DC Circuit , and the SCOTUSBLOG and the petition give some indication about what it takes to leapfrog over (or out of) the Court of Appeals in such a situation.

Update: Wow... Covington and Burling filed an amicus brief in support of granting a writ of certiori on behalf of a bunch of retired generals (you can read their bios here), who argue the Supremes should make damn sure that the Geneva convention is being enforced. Read the puppy here.

AP Reports on the story here; Arab Times does so here; Financial Times here; and the Washington Post chimes in here.

CA1 (10.22.04)

There doesn’t seem to be any opinions coming from Boston today, so I will look to the lay press. The Republican reports here that in Sgt. Robert Wagner's whistleblower lawsuit, the briefs from all sides are in. By way of backgroun Lisa K. Bruno of Massachusetts Lawyers Weekly writes here that this will be an appeal of a case where.

The officers filed their multi-count complaints in federal court in the wake of the attorney general's probe into alleged corruption in the city's police department. They charged the defendants with conducting a campaign of retaliation for cooperating with the state investigation and voicing concerns about police wrongdoing to the press.

The jury found for the officers.

US v. Councilman (see prior coverage here) seems to be getting some play in the District Courts out west. The Register reports here that “A federal judge in Los Angeles has dismissed charges against a California man who used a keystroke logger to spy on his employer, ruling that use of such a device does not violate federal wiretap law.” However, the story insinuates that the judge may have ruled solely on commerce clause grounds, so we will have to wait to see if we can find a copy of this opinion. (See other lay coverage here, here, here, here, and here). He used a small device called a "Keycatcher" and you can get it here. I really don't see how Councilman figures into this. What is interesting, however, is that he was "secretly helping consumer attorneys gather information against his employer, Bristol West Insurance Group." So, we got two professional ethics issues here: 1) should attorneys encourage this sort of behavior; and 2) should prosecutors rush to prosecute people who are helping out such attorneys.

Update: The Orin Kerr provides a link to a summary of this case here.

The next big appellate seminar
The 20th Annual Fifth Circuit Appellate Seminar is scheduled for April 7-8, 2005 in New Orleans at the J.W. Marriott Hotel. According to the seminar planners, so far the card includes Maureen Mahoney and Barrett Prettyman (Supreme Court practice), Alan Childress (what else? standards of review), Michael Rubin (professionalism), and Susan Wagner (interlocutory appeals). They're also expecting "at least 8 federal circuit judges from the 5th and 11th Circuits," -- and a visit by three dead presidents (Washington, Jefferson, and Madison). Information and registration form are here.

P.S. For those who like to plan way ahead, the next DRI Appellate Seminar will be in February 2006 in Santa Monica, CA.

Assignment of Income, Contingent Fees, and all that.

Thanks to the Scotusblog, I now know that the oral argument in CIR v. Banks and Banaitis, No. 03-907 is available here. The issue is one near and dear to the hearts of attorney, whether under 26 USC Sec. 61, contingent fees paid to lawyers are excludable from gross income?

The Sixth Circuit (Banks) and the Ninth Circuit (Banaitis) stand together in the minority and hold that, in the words of the amicus brief filed by Brant Hellwig & Gregg Polsky:

...a contingent fee arrangment is as a present transfer to the attorney of a portion of the underlying cause of action. These latter courts conclude that the contingent fee paid to the attorney represents a liquidation of the attorney's portion of the claim.

See The Tax Prof Blog's Coverage here and law.com's coverage here. And, if you think that you are getting off easy, remember to read the Tax Court's opinions in Banaitis and Banks.

CA2 (10.22.04)

In today's first opinion, the court reversed a grant of a habeas petition. The petitioner asserted that the prosecutor in his state court case improperly struck a hispanic juror in violation of Batson v. Kentucky; the district court agreed and ordered a new trial. The CA2, however, found that the state appellate court rejected petitioner's Batson challenge because of a procedural bar; it therefore reversed.

In today's second opinion, the court affirmed a criminal defendant's upward setencing departure. According to the district court, the Guidelines sentence did not adequately reflect the risk of recidivism and the lenient treatment the defendant had received in prior sentencings.

CERCLA Liability for Arrangers of Disposal of Hazardous Waste

The Sixth Circuit has issued an opinion analyzing CERCLA's imposition of liability on any person who "arrange[s]" "by contract, agreement or otherwise" for the "disposal or treatment . . . [or] for transport for disposal or treatment" of "hazardous substances" that is "owned or possessed" by that person. 42 U.S.C. § 9607(a)(3). See Gencorp Inc v. Olin Corp., No. 03-3019/3022.

The House of Sand and Blog (CA11 and CA4)

First, allow me to introduce myself. I blog under the pseudonym "Milbarge," and my usual base of operations is the blog Begging the Question. I'm a 2002 law school graduate who spent two years working as a staff attorney for one of the federal courts of appeals, and is now clerking in the chambers of a judge on a different court of appeals. I'm excited to be here at AL&P, where the proprietors have asked me to keep an eye on goings-on in the Fourth and Eleventh Circuits. I don't plan on mentioning every decision or tidbit of news, but I hope to hit the highlights. My general philosophy will be to pass along the decisions that seem significant, or are interesting reading, but (unless it's a slow day) probably not things like fact-specific cases that follow clearly established circuit precedent. And I probably won't mention unpublished opinions either. If you think I've missed something, please feel free to mention it in the comments, or email me. Most of my posts won't run this long, but I wanted to cover the whole last week in both circuits.

Now, on to regular business and an explanation of this post's title. In last year's film House of Sand and Fog, Jennifer Connelly plays a woman who, through bureaucratic foul-ups, loses her house in a tax auction to Ben Kingsley. The movie is about the struggle for the house between the two, each believing themselves to be the rightful owner of the property. If the movie had not been adapted from the novel by Andre Dubus III, one might wonder if the real inspiration was the facts of a case decided by the Eleventh Circuit last week, Culliver v. Rockdale County. Linda Culliver didn't pay her taxes, moved away, and changed her name. The county tried to track her down but couldn't find her, and eventually sold her house. Culliver sued everyone involved, arguing primarily that the notice of the impending tax sale from the county did not satisfy due process. The Eleventh Circuit said the notice was good enough, as was the county's efforts to find Culliver, especially given that she moved and changed her name without telling the county. One sidenote: Culliver sued the house's new owner under the equitable theory of "money had and money received," which isn't one you see everyday.

In another one you don't see everyday, the Eleventh Circuit reversed a Rule 29 judgment of acquittal in a bank fraud case, United States v. Williams. In short, the district court erred by not viewing the evidence in the light most favorable to the Government, and not crediting the Government's take on conflicting evidence. Lastly for now, Gilchrist v. State Farm Mutual. There, the district court certified a class of some seventy million car insurance policyholders claiming antitrust violations. On interlocutory appeal of the class certification, the Eleventh Circuit ruled that the McCarran-Ferguson Act bars the plaintiffs' claims because it exempts from the antitrust laws claims concerning the "business of insurance." The bulk of the opinion is an analysis of what "business" and "insurance" mean under the Act, and whether the claim meets the other conditions for antitrust exemption.

Moving to the Fourth Circuit, first Wofford v. Evans. Students at an elementary school told teachers another student had a gun. School officials detained and questioned the suspect for a while without informing the kid's parent(s). The mother sued, claiming the child's Fourth Amendment rights were violated, and also claiming that the school's failure to notify her was a due process violation. The court, in an opinion by Judge Wilkinson, affirmed the district court's Rule 12(b)(6) dismissal of her suit. The money quote:

School officials must have the leeway to maintain order on school premises and secure a safe environment in which learning can flourish. Over-constitutionalizing disciplinary procedures can undermine educators' ability to best attain these goals. Imposing a rigid duty of parental notification or a per se rule against detentions of a specified duration would eviscerate the ability of administrators to meet the remedial exigencies of the moment. The Constitution does not require such a result.

Immediately breaking my just-announced rule against discussing unpublished opinions, I do have to mention Bessinger v. Food Lion, because it involves barbecue. After the South Carolina legislature voted to lower the Confederate battle flag from the state house, Bessinger, owner of a chain of barbecue joints, raised one above his establishment. After the publicity this generated, some stores pulled Bessinger's products from their shelves. He sued, claiming unfair trade practices. In a brief opinion, the Fourth Circuit adopted the district court's rulings that (a) some store managers were fraudulently joined in an attempt to defeat diversity jurisdiction, and (b) the defendants' actions were not "unfair" under the South Carolina Unfair Trade Practices Act.

In James v. Harrison, the court denied habeas relief to a prisoner. While hardly noteworthy, the facts are interesting. Trial counsel for James (two lawyers) did not attend voir dire or jury selection. James was tried with six co-defendants, and apparently their lawyers handled everything. The upshot is that the Fourth Circuit held that the state courts' rejection of this claim was neither contrary to, nor an unreasonable application of, federal law, as required to win habeas relief. A tough call, but it would probably be pretty difficult to establish prejudice here, because it looks like the group of defense counsel had agreed that one would speak for all. Ah, strategy.

In Harless v. CSX Hotels, the court dealt with an issue of pre-emption under the Labor Management Relations Act and whether the case could be remanded to state court after the plaintiff stripped the federal claims from her complaint (it could). I wonder if there was a motion to recuse filed in the matter, because the CSX hotel at issue was The Greenbrier, where the Fourth Circuit Judicial Conference often holds its annual meeting.

In United States v. Turner, the court refused to create a per se rule of juror disqualification for any veniremember who has an account in the bank the defendant is accused of robbing. The court noted that a particular prospective juror might have such a special affinity for the bank that striking is permissible, but it followed three other circuits in rejecting the absolute rule.

Finally, as noted by How Appealing, the Richmond paper had profiles of two Fourth Circuit judges commonly mentioned as short-listers for a Supreme Court seat: J. Harvie Wilkinson and J. Michael Luttig.

CA2 (10.22.04)

We at Appellate Law & Practice mourn the passing of Judge Ellsworth Van Graafeiland over the weekend at the age of 89. Judge Van Graafeiland died one month to the day before what would have been his thirtieth anniversary on the bench. His last opinion was quite memorable.

CA2 (10.22.04)

On Friday, I composed a lengthy post about the three then-newly released Second Circuit opinions. Unfortunately, Blogger promptly ate my post, so all you get now is the quick and dirty version. You're not missing much.

In Gill v. Pidlypchak, the court reversed the dismissal of a prisoner's First Amendment retaliation claim. The district court had dismissed finding that the alleged adverse action did not have an actual "chilling" effect on his First Amendment rights because he had filed four more lawsuits and at least thirty-five grievances. The CA2 reversed, holding that Gill adequately alleged retaliatory behavior "that would deter a prisoner of ordinary firmness from vindicating his or her constitutional rights through the grievance process and the courts." Chief District Judge Scullin concurred.

Next, in Doe v. Menefee, the CA2 affirmed the denial of a habeas petition as time-barred. Judge Pooler dissented, arguing that Doe had made a credible showing of actual innocence. (The district court had made the same determination, but found that the showing of actual innocence was not a basis on which to excuse the lateness of petitioner's filing).

Third, in Dobson v. Hartford Financial Services Group, the court affirmed in party and reversed in part a grant of summary judgment on plaintiff's ERISA claims. Sorry, I just don't have the strength to go through this one again.

Finally, in United States v. Richard Williams (no relation to Serena and Venus), the court affirmed the district court's refusal to permit Williams to present defenses of necessity and innocent possession to his gun possession charges. The court also affirmed the refusal to give a two level sentencing adjustment for acceptance of responsibility.

ALSO: Updating a decision I orginally blogged about here, an Alabama jury deadlocked on Friday causing a mistrial in a suit brought by the state's pension fund in the aftermath of the Worldcom scandal and bankruptcy. Readers may recall that the Alabama trial was able to go forward when the CA2 reversed Judge Cote's injunction under the All Writs Act.

And on to Tax Matters. Or, as they say in Texas, “On to Tax Matters, Partner.”

Edges of Foundations

The Sixth Circuit decided “Lapham Foundation, Inc. v. C.I.R., No. 03-1229. In this case, the court upheld the decision of the Tax Court which held that the Lapham foundation is not a “supporting organization” of the American Endowment Foundation under 26 U.S.C. 509. AEF is one of these “donor advised funds” in which allow people to donate to them in one year, and yet maintain some control over the funds in later years. They don’t really control the funds, but they have a “say” in how the funds are later donated. Believe it or not, if you are filthy rich, these funds are a godsend.

Now, the problem is that Lapham Foundation only existed to contribute to the AEF, and Lapham Foundation only had one asset: a promissory note payable to the Laphams, that was – get this – written by a corporation that the Laphams owned, Estate Storage, Inc. When the Laphams asked to be recognized “tax-exempt organization under § 501(c)(3) and as a supporting organization under § 509(a)(3)” the IRS looked at what was really going on, and concluded that, yes, it was an exempt 501(c)(3), but it was a private foundation as it was really controlled by “disqualified person” under Treas. Reg. 1.509(a)-4(j)(1), and not a supporting organization. It isn’t that great to have a private foundation, because, as the court points out, “Private foundations are subject to various taxes, such as an excise tax based on investment income and taxes on self-dealing and failure to distribute income.” In other words, an organization can be a “supporting organization” if it meets the “attentiveness” test under Treas. Reg. 1.509(a)-4(j)(1) meaning that the organization must provide enough supposed to the “supported organization “sufficient to insure the attentiveness of such organization[ ] to the operations of the supporting organization." The AEF only received about $7,000 in the first two years, anyway. It can also be a “supporting organization” if it meets the “The But-For Test” in Treas. Reg. 1.509(a)- 4(i)(3)(ii) which allows an organization to qualify if “[t]he activities engaged in for or on behalf of the publicly supported organizations are activities to perform the functions of, or to carry out the purposes of, such organizations, and, but for the involvement of the supporting organization, would normally be engaged in by the publicly supported organizations themselves.” However, the court pointed out that merely donating money is not really an activity.

For a discussion of public charities, and how the IRS thinks about this stuff, see, the Internal Revenue Manual, An Article by the Greater Kansas City Community Foundation, and the Baton Rouge Area Foundation's Summary (and previous commentary disagreeing with the Tax Court)

Innocent rats are not Entitled to New Captain when Ship Going Down.

In Mekulsia v. Commissioner, No. 03-2304 the court held that the unwitting partners in an illegal tax shelter don’t have a right to be informed that the promoter (e.g. the “bad guy”) is under criminal investigation. They also don’t have a right to have the IRS stop treating the person under investigation as the “Tax Matters Partner” and therefore let someone who presumably isn’t an “almost-criminal” handle the audits with the IRS. 26 USC § 6231(c) allows the IRS to stop treating an investigated partner as a Tax Matters Partner, and 26 C.F.R. § 301.6231(c)(5), requires that the IRS do this if continuing to do that “interfere” with tax administration. The petitioner argued that “Secretary has already exercised the discretion granted him by statute and has determined that criminal investigation of a partner will always disrupt enforcement.” While a number of neat statutory interpretations were raised by both parties, the Sixth Circuit appears to have relied on the Ninth’s decision in Phillips v. Comm'r of Internal Revenue, 272 F.3d 1172 (9th Cir.2001), which involved the same partnership scam, and the Ninth Concluded that notification of the non-tax-matters partners was discretionary. Id. (“It is argued, a criminal investigation imposes a mandatory obligation to end the partnership treatment. The argument is ingenious but unconvincing. Read as a whole, the regulation [26 C.F.R. § 301.6231(c)-5T] vests discretion in the Commissioner to notify a partner that he or she is under criminal investigation. Until such notice is given, partnership items remain partnership items.”) Therefore, the court concluded that notifying the petitioners was not a “ministerial task” and therefore the petitioners were not entitled to not have the individual partner's items as partnership items.

The Sixth refers to the “District Court” once. I wish they would stop doing this. This was an appeal from the Tax Court.

For a biased opinion on the IRS's behavior in this case (including a description of the shelter) see here. For the Tax Court's opinion, see here.

Appellate Practice Bookworm

Since it is the weekend, and all the clerks are hard at work, coming up with next week’s opinions, I figured that I would float this trial balloon. Indeed, there is more to appellate practice than just figuring how to get admitted, and digesting cases. There exists a somewhat healthy body of literature regarding appellate case, and I think that we need to, at least on the weekends, read it. To start, I am going to do as Larry Solumn does, and post recent Articles uploaded to SSRN. However, I have a bunch of books on appellate practice at home, and if I get the time I will post reviews of them. So, here goes:

In the exciting December 2004 episode of the U. Pa. L. Rev., William H Burgess “…examines the Federal Circuit's appellate review of claim construction during the years after its en banc decision in Cybor, in which the Court declared that claim construction is purely a matter of law, with no underlying factual inquiries, and would thenceforth be reviewed de novo.” He disagrees because 1) certain issues underlying claim construction are immutably issues of fact; and 2) Cybor is inconsistent with the Supreme Court's decision in Markman.

You are HEREBY ORDERED to download Simplicity at the Cost of Clarity: Appellate Review of Claim Construction and the Failed Promise of Cybor now.

For some background see, Baker Botts’ article on the subject here, Pillsbury Winthrop's here, Dickstein Shapiro's here, and Foley Hoag's here.

CA5 (11.19.04)

"There's no such thing as being a little bit moot."
So said the Fifth Circuit in Scruggs v. Lowman, filed yesterday. The case, an interesting study in mootness affecting appellate jurisdiction, answers this question: What's an appellate court to do with an appeal if the case became moot before the lower court rendered judgment? Must the appellate court dismiss the appeal for lack of jurisdiction, thus allowing the lower court's judgment, even though null, to stand? Answer: Even though the appellate court has no jurisdiction to decide the merits, it retains power to vacate the lower court judgment.

Eleventh Amendment and Ex Parte Young
In other news, the Fifth Circuit denied both panel and en banc rehearing in McCarthy v. Hawkins. Seven judges dissented from the denial of en banc rehearing (Smith, Jolly, Jones, Barksdale, Garza, Clement, and Pickering). The dissenters agreed with Judge Garza's panel dissent: "[A] challenge to the constitutionality of a statute underlying a [suit under Ex parte Young, 209 U.S. 123 (1908),] is a proper subject of an Eleventh Amendment immunity analysis and that consideration of such a challenge is within the scope of an interlocutory appeal from the denial of a claim of Eleventh Amendment immunity."

CA5 (11.19.04)
Torts on the water

Brad Parker provides this summary of yesterday's decision in Scarborough v. Clemco Industries:

• First, admiralty jurisdiction exists over claims against product manufacturers when at least one other alleged tortfeasor was engaging in a traditional maritime activity. That traditional maritime activity, however, must have had a proximate-cause relationship to the incident. In a multiple-defendant case, this ruling extends admiralty jurisdiction over all claims - if one of the claims arises from a traditional-maritime activity.

• Second, when the decedent was a Jones Act seaman, non-pecuniary damages are not recoverable in a general-maritime-law-wrongful-death suit against non-employer-third-party tortfeasors.

CA1 (11.19.04)

Although it does not appear that the opinion has been released yet, Hi-Tech Pharmacal Co., Inc., is jumping (or coughing) for joy because the court "...vacated the preliminary injunction, which had enjoined Hi-Tech from marketing Tannate 12 D S, a generic version of MedPointe's Tussi-12 D S, a cough suspension." Read the press release here.

Indeed, there were no published decisions today. So, to make it up to you, here is a quick overview of the three unpublished decisions.

Chévere-Rodríguez V. Pagán, No. 04-1491 remands to the District Court a time-barred 1983 action, reminding the court that when the final day of a computed period of time prescribed or allowed by an applicable statute for doing an act falls on a Saturday, Sunday, or legal holiday, the period is automatically extended to the next business day. See Fed. R. Civ. P. 6(a).

Dresser v. Community Service Communications, No. 03-2260, affirmed the decision of the district court which held that even in the face of the FMLA, there was a good reason to let the plaintiff go.

Roman-Roman v. Commissioner vacated and remanded the decision of the SSA, holding, in essence that the ALJ erred in relying on mental health experts, when they could he should have considered vocational experts about what work the claimant could do. The court held that

In the absence of a better explanation as to how these medical findings illustrate that a nearly full set of unskilled light work is available to Roman, we believe that a translation from medical evaluations to job prospects was more appropriately reserved for a vocational expert. On this record, there are significant mental constraints outlined by even the most positive psychological prognoses and we cannot find any clear basis for concluding that the impairments have no significant effect on the work still available to appellant. This certainly does not show that appellant is disabled but, unless this gap is closed, it does preclude reliance upon the [occupational] grid.

I think this case should have been published.

CA5 (11.19.04)

Greetings from New Orleans. I hope to bring you the more interesting decisions from the Fifth Circuit and the Louisiana Supreme Court.

CA1 (11.18.04)

No opinions today. A couple of Errata. Note the Sixth circuit's tax opinions, which I will write something up about later.

No more opinions expected from the California Supreme Court this week . . .

CA10 (11.18.04)

The Tenth Circuit ruled today against Dr. Exum, former head of the United States Olympic Committee’s drug control program in Exum v. United States, 03-1256 and 03-1280. Exum claimed he was passed over for the director's job of the anti-doping agency because he is black. The court ruled Exum didn't prove that he formally applied for the job or that he was discriminated against. Rather, it seems the director's job was phased out with the creation of the U.S. Anti-Doping Agency, which switched doping control from the USOC to an independent agency.

In Woodruff v. Covington, 02-7040 and 02-7051, the court said employee doctors of an Indian health clinic are not federal employees within the meaning of the Federal Torts Claims Act and thus not entitled from immunity from malpractice suit. Defendant doctors argued the clinic is an administrative entity within the Indian Health Service. The court rejected that interpretation and also found that the doctors were not within the government’s day-to-day control.

In United States v. Artez, 03-4166, the court found that a search of an alleged drug dealer’s home pursuant to warrant was supported by probable cause. Officers searching for narcotics turned up an short barrel shotgun and charged Leon with possessing an unregistered gun. The district court suppressed the evidence, but the Tenth Circuit reversed.

And in another gun possession case, United States v. Griffin, 03-7052, the defendant's probation officer testified that the defendant—a convicted felon—knew he was prohibited from possessing firearms under the terms of his probation. The district court admitted the probation officer's testimony over Defendant's objection that the evidence was irrelevant and would cause undue prejudice. The Tenth Circuit affirmed.

CA8 (11.18.04)

Three published opinions today. These summaries are from the Eighth Circuit’s site:

United States v. Rushing (01-3077, 01-3428, 01-3082): District court did not err in excluding defendant's expert's proposed testimony regarding likelihood of sexual transmission of Hepatitis B as the proffered testimony was not reliable and admissible under Daubert; no Brady violation as the government did not have a duty to disclose rejected plea offer under Brady; nor is there any evidence that the government made any sort of undisclosed agreement with the witness to secure her testimony or otherwise acted in bad faith.

Brown v. Barnhart (03-3248): The administrative law judge’s decision that child's condition did not meet or medically equal a listed impairment was supported by substantial evidence.

United States v. Escobar (03-4046): District court did not err in suppressing search of baggage as defendants had not given a valid consent to the search; fact that agent lied about drug-dog result, combined with location of the search and the agents failure to advise defendant of the right to refuse consent, support district court's conclusion that consent was tainted.

Judges Enjoy Absolute Immunity When Initiating Criminal Charges Against Perjurors Who Have Undergone Gender Reassignment Surgery

Always sensitive to the manner in which the salacious generates interest, we are pleased to report an opinion concerning judicial immunity. The Sixth Circuit has reversed a decision that denied judicial immunity to a judge who initiated criminal charges against a marriage license applicant who had undergone a sex-change operation. The judge accused the applicant of lying about the applicant’s gender, and the number of previous marriage licenses applied for by the applicant. The Sixth Circuit found the "non-judicial act exception" to absolute judicial immunity inapplicable, since the judge "had a duty to notify the proper authorities if he felt a crime was being committed in his courtroom." The Court further found the absence of jurisdiction exception inapplicable, as "at most, [the j]udge simply acted in excess of his jurisdictional authority...[and] did not act in complete absence of all jurisdiction...." See Brookings v. Clunk, No. 03-3511. Judge Gibbons has a thoughtful dissent.

The Deptartment of Transportation Inspector General is authorized under §228 of the Motor Carrier Safety Improvement Act of 1999 to obtain and execute search warrants. See Airtrans Inc v. Mead, No. 02-6411.

Private Foundations and Public Charities Compared for Tax Purposes

In a decision that I suspect Doingitdaubertstyle will review, the Sixth Circuit examined the differences between private foundations and public charities under 26 U.S.C. § 509(a) and § 501(c)(3). See Lapham Foundation v. Commissioner, No. 03-1229.

More News for Tax Practitioners

Another tax case from the Sixth today affirmed a Tax Court ruling that there is no ministerial- task obligation on the IRS to notify, and thereby remove from a partnership audit, a tax matters partner who is under criminal investigation. See Mekulsia v. Commissioner, No. 03-2304.

CA2 (10.18.04)

No opinions today.

However, I neglected to point out earlier this week that, effective this past Tuesday, the CA2 amended its local rules. Most notable among the rule changes is that the court has made it significantly easier to join the Second Circuit bar by eliminating the oral argument requirement.

Thanks to How Appealing for the pointer.

CA5 (11.15.04)

Taxes in Texas Don't Make the Value Go Down

One tax case so far this week, but it wasn’t from the Tax Court. In Smith v. US, No. 04-20194 (5th Cir. Nov. 15, 2004), an appeal from a refund action at a District Court, which that the gross estate of a decedent should not be reduced by the amount of income tax liability that might attach to the decedent’s retirement accounts. The Court, by King, C.J., affirmed. The court rejected an argument that other courts had considered potential tax liability in valuation (when the tax liability would reduce saleability), and held that:

…Retirement Accounts are subject to an estate tax, and in addition, an income tax will be assessed against the beneficiaries of the accounts when the accounts are distributed. To compensate (at least partially) for this potentially double taxation, Congress enacted § 691(c) of the Internal Revenue Code, which grants the recipient of income in respect of a decedent an income tax deduction equal to the amount of federal estate tax attributable to that asset. 26 U.S.C. § 691(c). Therefore, in our scenario, the decedent's beneficiaries will be allowed a deduction in the amount of federal estate tax paid on the Retirement Accounts. Finally, the deduction is allowed in the same year the income is realized--that is, when the Retirement Accounts are actually distributed.

So, in essence, when you are dead, don't complain about taxes, because your heirs will get a tax benefit. The court also dismissed an argument that the retirement accounts were not readily marketable, as it was not raised below.

CA7 (11.17.04)

One published opinion today:

Perruquet v. Briley, 02-2981: A convicted murderer procedurally defaulted his due process claim by not bringing it up in state court. Though the district court said the due process claim was just a warmed-over version of Perruquet’s state law claims—and thus not cognizable on habeas review—the Seventh Circuit said it was cognizable. Nevertheless, the court concluded that Perruquet procedurally defaulted his claim: “[B]ecause no Illinois court was ever given the opportunity to pass on the merits of Perruquet’s constitutional claim, comity and federalism principles weigh strongly against permitting Perruquet to assert the claim in federal court.”

CA1 (11.17.04)

Medical Malpractice Air-Force Style

In Primus v. US, 04-1085, the court affirmed the ruling of the District Court, which, after a bench trial, found that the Air Force Doctor under the FTCA, had not malpracticed upon the plaintiff by misdiagnosing her breast cancer. 28 U.S.C. § 1346(b); Mitchell v. United States, 141 F.3d 8, 13 (lst Cir. 1998) (situs of tort determines how much government must pay under FTCA). The court held that the District Court had not abused its discretion in refusing to allow late designation of expert witnesses under Fed. R. Civ. P. 26(a)(2)(C) and 37(c)(1). If anything this case should remind people that Federal Courts will weight in on what they think state law is in FTCA case that will be heard, on appeal, by circuits that have almost no connection to where the alleged tort took place.

All the things that go into a Conspiracy

US v. McGuire, No. 04-1088, the court affirmed the defendant’s conviction for “convicted of conspiracy to possess with intent to distribute and possession of with intent to distribute cocaine base.” McGuire argued that evidence of prior violent incidents should not have been admitted under FRE 404(b). The court held that evidence of his past behavior was admissible because the incident constituted “direct proof of the charged conspiracy” and therefore could not have been unduly prejudicial. The Court also held that the court properly admitted a handgun because,”...in drug trafficking firearms have become 'tools of the trade' and thus are probative of the existence of a drug conspiracy.” quoting United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989). So let me get this straight, everyone constantly is telling me how the Second Amendment protects their right to bear arms, because they want to use guns for sport and home protection, but handguns are considered per se a “tool of the drug trafficking trade.” I hope that all of you who see the Second amendment as a personal right realize that such inferences, without some additional connection, probably burden one's Second Amendment rights.

Finally, I offer our readers my original post, that was written before I knew that the court would release opinions today. It is on two items that are near to our hearts. I think.

Paul Rosenzweig of the Heritage Foundation testified with footnotes to the United States Sentencing Commission about “Sentencing In A Post-Booker And Fanfan World.” The Heritage Foundation is a “nonpartisan research and educational organization” which limits its employees to mainly former (or future) employees of Republican Congresspeople, usually vilifies Democrats , and considers Rush Limbaugh to be a serious scholar. Rosenzweig did not mention US v. Detwiler in which the District Court declared the post-Feeney amendment composition of the Sentencing Commission to be unconstitutional.

“...Dissent I must -- unconstitutional the statute is.’ Yoda, C.J.,” reads a comment on Freakin’ News, views about what the court might look like.

Questions of State Law may be Cognizable in Habeas if Defendant Asserts his Claim with Specificity

Perruquet v. Briley, No. 03-2981 (7th Cir., Nov. 17, 2004) (Rovner, C.J., for Posner and Ripple, JJ.)

However, we believe that Perruquet’s petition [which asserted errors in the trial court's admission and exclusion of evidence under state law] draws enough of a connection between his right to due process and the trial court’s (alleged) evidentiary and instructional errors to render his claim cognizable on habeas review. The petition, along with the supporting memorandum that Perruquet filed, does more than merely cite his constitutional right to a fair trial. Perruquet has articulated the theory of self-defense that he wished to pursue; he has described the evidence (both excluded and admitted) that supported that theory; and he has argued that preventing him from pursuing the theory of self-defense likely resulted in the conviction of an innocent person.

However, since the defendant failed to litigate the issues in state court, his habeas claim is procedurally barred:

The likelihood that Perruquet might have been acquitted had the evidence regarding Hudson’s threats been admitted and the jury had been instructed on self-defense strikes us as slim. The procedural default therefore bars us from reaching the merits of his claim.

The Eighth Circuit did not render any published opinions today.

CA9 (11.17.04)

No new opinions yesterday; one today

US v. Schoneberg The court reversed defendant's drug conviction because the district court erred in preventing defense counsel from cross examining a witness. The sixth amendment right to be confronted by the witness is subject to judicial discretion to "preclude repetitive andunduly harassing interrogation,” but that limitation cannot preclude a defendant from asking, not only “whether [the witness] was biased” but also “to make a record from which to argue why [the witness] might have been biased.” The cross examination of the witness could have raised issues such that the error was not harmless.

CA2 (10.17.04) -- Where the Left Hand Doesn't Know What the Right One's Doing

In Zappulla v. People, the court reversed a denial of a habeas petition, finding that the state court engaged in an "objectively unreasonable" harmless error review. Judge Raggi dissented. What is notable about this decision is that the court engages in an extensive discussion about the proper standard for reviewing a district court's harmless error determination:

This case requires us to address what standard governs our review of a district court’s determination that a constitutional error was harmless following the passage of AEDPA. We follow, as we must, the Supreme Court’s reasoning in Mitchell [v. Esparza] to hold that, in reviewing a state court’s harmless error determination, we only may reverse determinations that are objectively unreasonable. The pertinent state court determination is whether the People proved "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (citations and footnote omitted).

Hmm. This sounds familiar. Oh, wait. Isn't this exactly the same question that the Second Circuit addressed two days ago, in Gutierrez v. McGinnis? In Gutierrez, the court explained:

We take this opportunity to settle the question of whether the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), in amending the relevant federal habeas statute, 28 U.S.C. § 2254, has altered the inquiry into harmless error on collateral review. . . . Mitchell [v. Esparza] signals, and we therefore hold, that when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state
unreasonably applied Chapman [v. California].

As the Gutierrez court explained a few paragraphs before, Chapman requires the "state court to find 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,'" and permits a habeas court to reverse only if the state court "applied harmless-error review in an ‘objectively unreasonable’ manner." Thus, unless I'm missing something obvious (always a possibility), Gutierrez and Zapulla say the same exact thing.

Seriously, guys. While it's comforting that the two panels reached the same conclusion, it's a little bit disturbing that the court would purport to resolve the same ambiguity twice in three days. I fear someone in Judge Pooler's chambers hasn't been keeping up-to-date on Appellate Law & Practice.

Can anyone else think of another time that this has happened in the recent past (i.e., post the proliferation of Lexis and Westlaw)? Maybe it's not as remarkable as I'd like to think it is.

In other news...

In Green Party of New York State v. New York State Board of Elections, the named political party (ultimately joined by a number of other diverse minority parties, from Right to Lifers to Marijuana Reformists) challenged New York's voter registration scheme. Under New York law, if a political party's gubernatorial candidate fails to receive 50,000 votes, that party is removed from the voter registration rolls and members of that party are listed as non-enrolled. The parties challenged this scheme under the Free Association clause of the First Amendment. The district court granted a preliminary injunction in favor of the parties, and the court of appeals affirmed, finding that the parties were likely to be successful in their challenge to the voter enrollment law. So rest assured, fringe parties, for no matter how poorly your candidates fare, at least your constituency will remain nominally enrolled.

Finally, in United States v. Aspinall, the court affirmed the defendant-appellant's resentencing after a violation of probation hearing, even though the government relied on hearsay evidence during the hearing.

CA1 (11.16.04)

In Esso Standard Oil Co. V Cotto, No. 04-2055 , a poor company called Esso feared that Puerto Rico's Environmental Quality Board (EQB) was caring a little too much about the environment. A gas station with tanks leased by Esso had leaked some gas, and after various orders to clean the place up issued a "show cause order" asking Esso to explain why it should not pay $76,000,000. Esso did what any large corporation that wants to show the locals who is boss would do, and sought an injunction in the District Court, arguing that "the Board is so biased that its adjudication of the case violates the Due Process Clause of the United States Constitution." The Court affirmed the denial of a preliminary injunction by the district court which, surprise surprised, applied Younger and didn't apply the Gibson v. Berryhill, 411 U.S. 564 (1973) (where concepts of due process are violated because of hearing officer's pecuniary interest in the) outcome exception. Interestingly, Esso participated in the administrative process and even appealed to the Puerto Rican Circuit Court over a discovery matter, which was dismissed as such orders were not final orders. Esso then tried its hand in the District Court and alledged that the process was flawed because 1) EQB officials have a direct pecuniary interest in collecting a large fine; 2) the Puerto Rico Senate "has exerted undue influence" biasing the proceedings; 3) 3) high-ranking EQB officials, including a member of the board, were not consulted in issuing the show cause order on the proposed fine despite being directly involved in the case; 4) the hearing officer lack independence to administer the hearings fairly, 5) attorney Velázquez [the guy who was arguing for what appears to be the enforcement divisions of the EQB] engaged in grossly unethical behavior before resigning from the case earlier this year, and (6) the owners of the gas station exerted undue influence throughout the proceedings. Although the First Circuit rejected most of these claims, it noted that just because there is a possibility of eventual judicial review, does not mean that there is no irreparable harm: irreparable harm can come from ongoing administrative proceedings. However, the court held that Puerto Rico's procedures were adequate for seeking interlocutory review from administrative agencies in the courts, therefore there was no reason to apply any exceptions to Younger.

While this opinion obviously deals with weighty issues of comity, it does not deal with comity’s sister, Federalism. I would have liked to have seen some discussion of exactly why Younger should apply in Puerto Rico, when there is a lot less interest in keeping the local government free from federal interference as Art. IV Sec. 3, cl. 2 gives the federal government a heck of a lot more power to do whatever it wants in Puerto Rico.

Don't have a Councilman

Access the Electronic Frontier Foundation’s amicus brief in the rehearing of Councilman here. The brief is authored by Orin Kerr, who blogs here, and pisses people off here.

The rehearing order asks that the parties address the following questions:

1. Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?

2. Whether the rule of lenity precludes prosecution in this case?

Additional coverage of the brief can be found here . All of the briefs in this case can be found here.

UPDATE: Orin Kerr outscooped me on this story and posted coverage of it here. Normally I wouldn't admit that this happened, but I can't seem to get the backdate function to work, so that I will have reported on Orin Kerr's brief two weeks before he wrote it.

And, finally, just to piss off my co-bloggers, I direct your attention to an article by Roxane Sokolove Marenberg and Dov Grunschlag of some firm called Piper Rudnick survey a circuit split in which the First Circuit holds that playing well with others is not a major life activity under the ADA, and the Ninth, because it is not a "team player," holds that it is.

CA2 (10.15.04)

One more opinion from yesterday. In United States v. Abuhamra, the court considered an appeal from a denial of bail pending sentencing.

The appeal presents a single question: whether a district court may rely on evidence submitted by the government ex parte and in camera to deny bail. We conclude that such submissions should generally not be entertained because they compromise a defendant’s due process right to a fair hearing on his bail application as well as the public’s interest in open criminal proceedings. We further conclude that an exception to this rule may be made only in rare cases where (1) the government satisfies the
standard for closed criminal proceedings established in Waller v. Georgia, 467 U.S. 39 (1984); (2) the government discloses to defendant the substance of the government’s sealed submission; and (3) the district court engages in heightened scrutiny of the reliability of any ex parte, in camera submissions.

CA9 (11.15.04)

Three new ninth circuit opinions today . . .

Pincay v. Andrews The court upheld an appellate ruling that "Andrews’s attorney had improperly delegated the function of calendaring to a paralegal, and held that the attorney’s reliance on a paralegal was inexcusable as a matter of law." The en banc court found that such a per se ruling was consistent with Supreme Court doctrine of excusable neglect and allowed the district court's discretion to permit the relaxing of the filing deadline.

Pardi v. Kaiser Permanente Hosp. The court vacated two causes of action that had been summarily dismissed by the district court. The first dismissal, a contract claim, was inappropriate due to the existence of material facts under the contract. The dismissal of the ADA claim was also inappropriate as the California state law litigation privilege does not bar an ADA claim for retaliation based on post-settlement conduct.

Rios v. Garcia The court reversed the district court's grant of a conditional writ of habeas corpus. The California Superior Court's decision affirming plaintiff's sentence was not contrary to or an unreasonable application of clearly established federal law. The court cited Ewing v. California's holding that “[t]he Eighth Amendment does not require strict proportionality. . . . Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Rios was charged under California's Three Strikes Law, and was given 25 years to life for his third petty theft charge.

California (11.15.04)

Morohoshi v. Pacific Home, S120903: Today the California Supreme Court held that the agency that arranged care at Pacific Home, a residential care facility, for a mentally disabled man is not vicariously liable for his death. Bobby Morohoshi’s parents received a jury award of about $600,000 because Pacific Home failed to check the diabetic man’s blood sugar one night, resulting in hypoglycemic seizure and death. Appallingly, Pacific Home was uninsured, so the Morohoshis sought to hold Harbor Regional Center responsible. However, the Supreme Court held that Harbor Regional Center wasn’t responsible for the hour-by-hour care that would have prevented Mr. Morohoshi’s death.

CA1 (11.15.04)

Your Chealing Heart

In Cheal v. US, No. 03-1333, the District Court held that a restitution order issued 127 days after sentencing based on a guilty plea was not plain error. The facts of the case are, depending on your perspective either quite sad, or a testament to just how dumb people can be. The court also found that the plea was knowing and voluntary, despite a rambling denial of her fraud from the defendant during the change of plea hearing.

As an aside, although her attorneys did not raise her mental capacity at the District Court, in order to avail herself of a downward departure for her diminished mental capacity under § 5K2.13. What is funny about this is that she underwent a psychiatric evaluation and...

The psychiatrist added that Cheal appeared to hold some bizarre ideas about the United States government. She believed that there are dozens of lawyers working behind the scenes in the White House to bring the United States back to "constitutional law" instead of the current "judicial law." These lawyers intend to abolish the Internal Revenue Service in favor of a consumption tax and have already secretly converted one-third of the country' banks to "treasury banks" backed by the gold standard.

What is funny about these so-called crazy beliefs is that even mature, sane lawyers sometimes make similar statements to non-lawyers. Okay, well, rarely do they talk about the gold standard, but they troll out the judicial activism chestnut quite a bit.

The court noted that she failed to raise a Blakely issue as well. Professor Berman comments here that the First Circuit is "as a leader in affirming convictions over Blakely objections on plain error grounds." Strangely, the Court seems to imply all a person need do is submit supplemental authority.

The District Court is Marginally Adequate

US v. Vazquez-Molina, No. 03-2655, after a plea agreement that contained stipulations that the charged conspiracy, insofar as it pertained to the appellant, involved at least three and one-half but less than five kilograms of cocaine, USSG §2D1.1(c)(5); that the appellant occupied a supervisory position in the drug ring, id. §3B1.1(a); and that a firearm was possessed during the commission of the offense, id. §2D1.1(b)(1) the court:

1. agreed with the Ninth and Fifth Circuits that for purposes of 18 U.S.C. § 3553, failing to raise an issue at the District Court constitutes a forfeiture (which can be resurrected at the Court of Appeals on a plain error standard), as opposed to a waiver, which cannot; but
2. the District Court’s thought processes were clear enough, and “While a fuller elaboration would have been desirable, we find this explanation marginally adequate”; and finally
3. the defendant waived his a claim that “the sentencing court's reference to his second-offender status constitutes double counting because his criminal history score already takes that datum into account, and even if he did waive it, either the Court of Appeals lacked jurisdiction and it isn’t so bad, anyway, because “court's use of the appellant's prior conviction as a basis for the sentence imposed was entirely permissible” as the guidelines don’t specifically prohibit using the nature of a prior offense as a basis for choosing a within-range sentence.

CA2 (11.15.04)

One new opinion today. In Gutierrez v. McGinnis, the court held -- following the Supreme Court’s signal in Mitchell v. Esparza -- that when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state unreasonably applied Chapman v. California.

Three opinions were issued last week that I neglected to post about:

In Abrams v. Societe Nationale des Chemins de Fer Francais, on remand from the Supreme Court in light of Republic of Austria v. Altmann, the court affirmed the dismissal of a class action brought by Holocaust victims against the French national railroad, which was used to transport civilians to Nazi concentration camps. The court held that, pursuant to Altmann, even though the railroad was a private entity at the time of its alleged conduct, because it subsequently became part of the French government it is immunized from suit under the Foreign Sovereign Immunity Act. (How Appealing blogs about the opinion here).

The second case, United States v. Vasquez, "concerns the procedural issue of the standard of review for decisions applying the Sentencing Guidelines to facts -- in this case a decision applying the Guidelines’ grouping rules -- and the substantive issue of whether two episodes of unlawful sexual activity by a prison guard with an inmate, occurring on separate days, should be included in a single group." The court answered the first question by interpreting the "due deference" language of the Guidelines to require an "either/or" approach: "[T]he standard of review should be either ‘de novo’ or ‘clearly erroneous,’ depending on the nature of the application determination being reviewed: the ‘de novo’ standard is used where the district court’s application of a guideline ‘approaches a purely legal question,’ and the ‘clearly erroneous’ standard is used where the district court’s determination ‘resembles a finding of fact.’" (citations omitted). The court answered the second question -- applying a de novo standard of review -- in the negative.

The third case, Locher v. Unum Life Insurance Co. of America, affirmed the district court’s decision awarding plaintiff ERISA benefits after an bench trial. The court also set out the standard for when to consider evidence outside the administrative record when reviewing de novo an administrator’s decision to deny ERISA benefits: "We hold that a conflicted administrator does not per se constitute good cause [to consider evidence outside the administrative record], and caution district courts that a finding of a conflicted administrator alone should not be translated necessarily into a finding of good cause."

Finally, to follow up on a previous post, the Supreme Court last week denied certiorari in Muntaqim v. Coombe, the felon disenfranchisement case. We’ll have to wait and see whether this results in the Second Circuit rehearing the case en banc, as I predicted.

Mid-Major Hoopsters Rejoice, For Now: NCAA’s Market Insufficiently Defined for Antitrust Purposes

The Sixth Circuit has reversed the award of a preliminary injunction that forbade the NCAA from enforcing its "two-in-four" rule, a prohibition on any NCAA men’s basketball team from appearing in more than two exempt tournaments every four years. See Worldwide Basketball v. NCAA, No. 03-4024.

IIRIRA Does Not Divest the Courts from Hearing Appeals of Denials of Motions to Remand to Consider Additional Evidence

While IIRIRA, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, deprives courts of jurisdiction to review "any judgment regarding" the attorney general’s discretionary authority to adjust one’s status from "nonimmigrant" to that of "person admitted for permanent residence," a ruling on a motion to reopen a case to consider new information, i.e., judgment that does not involve the consideration of relief on the merits, is not be treated as "regarding" the granting of such relief. See Pilica v. Ashcroft, 02-4348.

Anthony Guzzo is entitled to payment from Medicare for a Prostate Treatment

While Medicare has changed the manner in which it processes a determination concerning the availability of new treatments, the Sixth Circuit has published for the whole world to know that Medicare got it wrong in Anthony Guzzo’s case. See Guzzo v. Thompson, 03-1346.

It Is Clearly Established as Unconstitutional That a Public School May Not Require Its Teachers to Send Their Children to the Public School for Education

The Sixth Circuit affirmed over a dissent the denial of qualified immunity to public school administrators who allegedly refused offer a full-time position to a part-time teacher who sent his children to a parochial school. See Barrett v. Steubenville, No. 03-4373. While the opinions question how comparable this is to anti-nepotism laws forbidding two employees to marry, I am curious how this restriction compares to residency requirements of municipal employees.

A couple of Unpublished Opinions

The First issued a few unpublished opinions, whcih showed up on November 12, 2004. One of them is sort of interesting.

CA1 (10.28.04)

In De Figuero v. Ashcroft, 03-2593, the EOIR “affirmed without opinion” an order of an IJ, it doesn’t violated due process because the petitioner still may appeal to the courts, and being deprived of one lawyer of administrative review is not really a denial of due process. The court also held that the petitioner waived two hearsay arguments, and upheld a factual finding. I noted this case because recently, of cases rulings by IJs have been set aside by courts of appeal, who, in essence, have said that they are simply not taking their jobs (at least as far as making factual findings are concerned) seriously. See, e.g., Kourski v. Ashcroft, 355 F.3d 1038 (7th Cir. 2004). Therefore, if Courts of Appeal are going to be scrutinizing the decisions of IJs closely (or, at least, not having staff attorneys do the opinions), they are probably all worth reading, as they will provide everyone with some guidance as to what constitutes a good factual finding.

CADC (11.03.04)


Also, in sort of tax-related news, the DC Circuit, on November 3, 2004 issued Gibbs v. Commissioner, 04-1175. In Gibbs, the court held, in full, that:

Upon consideration of the "procedural motion on calendaring case # 04-1175," the opposition thereto, and the reply; and the motion to transfer the appeal to the Sixth Circuit or, in the alternative, for summary affirmance and the opposition thereto, it is ORDERED that the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 260 U.S. App. D.C. 334, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The Tax Court is a court of limited jurisdiction, Beall v. United States, 336 F.3d 419, 430 (5th Cir. 2003), and lacked jurisdiction to consider appellant's claim against the United States government for hazardous duty pay. It is FURTHER ORDERED that the procedural motion be dismissed as moot.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

The petitioners are completely off-based on the substance of the appeal. However, I thought that choice of court which handles appeals from a Tax Court was a venue decision which required analysis under 26 USC Sec. 7482(b)(1) and DC Circuit only had jurisdiction if no legal residence, principles place of business, or office can be established (or the petitioner happened to be a resident of the District of Columbia.) So, if someone understands this opinion, the comments box awaits!

Big Events in NYC This Week

The Columbia Federalist Society is sponsoring a couple big events next week that everyone is invited to.

On Thursday the 18th at 4:45 Professor Richard Epstein from the University of Chicago will be debating Professor Eben Moglen from Columbia on digital property rights and Intel v. Hamidi 71 P.3d 296 (2003). The event will be at Columbia Law School--435 W. 116th St--and is open to the public.

On Monday the 22 at 12:15 Judge Richard Posner will be speaking on "Civil Liberties in the International War on Terror." Judge Posner recently wrote a book review on the 9/11 commission report that should be the basis for his comments. This event will also be at the law school.

Let me know if you have any questions.

Practice Tip: Get Firefox.

The new version of Firefox puts all other browsers to shame, and probably is the best browser for lawyers and law clerks. (If systems gives you trouble about installing a new browser, whine and moan until people listen.)

Firefox has a number of features which I use every day:

• Tabbed Browsing: I can keep multiple widows open all the time, and rather than having to do an alt-tab, I can simply click on tabs.
• A “search box” in the upper left-hand corner. I type in a few keywords, and it feeds them into whatever search engines that I select. Most of the time this is Google, A9, Vivisimo, or m-w.com .
  
• Since those engines are not enough, if you ever see a searchable directory that you want to access quickly, by right-clicking on that search box, you can make the box into a “key word search.” So, for example, by right clicking on the “Party Name Search” here, I made it possible to simply type in “US Blakely” into the box where I would normally put the URL have Blakely come up like this.
• Of course all spyware and popups are blocked. Also, you can set it to blog out most ads. It has been months since I have even seen banner advertising.
• And most of all, Firefox handles live feeds quite well. At the lower left hand corner of my screen an icon appears which allows me to take any compatible blog (including Appellate Law and Practice) and put its live feed on the toolbar. Therefore, without even going to our wonderful blog, I can tell whether it has been updated, and what the titles of the recent posts are.
• When I get a chance I will probably write some plugins that will help our craft out immensely.However, I will have to release them anonymously, because, as Greedy Clerks points out, admitting you know about computers can harm your career.Cf here.

CA9 (11.12.04)

Two new opinions from the 9th circuit today . . .

In May Trucking Co. v. Oregon Dep't of Transp. the court held that the Tax Injunction Act deprived the court of subject matter jurisdiction over a claim that the International Fuel Tax Agreement precludes Oregon's collection of certain fuel taxes. The court cited Arkansas v. Farm Credit Servs. of Cent. Ark., 520 U.S. 821, 825 (1997) for the proposition that "The Act is “first and foremost a vehicle ‘to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.’ ” Moreover, Congress had recently addressed the issue in 49 U.S.C. § 31706(a)-(c), precluding federal court jurisdiction over the cases.

Thus, to construe the Act as exempting multijurisdictional taxation programs such as IFTA from its coverage is inconsistent not only with the Act’s overriding purposes, but also with the federal legislation enforcing compliance with IFTA’s provisions.

Kaur v. Aschroft The court granted plaintiff's petition for review where the Immigration Judge improperly denied plaintiff a full and fair hearing by not allowing a percipient witness (plaintiff's son) to testify in support of the claim. Plaintiff had originally submitted a false asymlum application, and was attempting to amend to include the true nature of persecution in her home country. The IJ denied her request for asylum based largely on the earlier false statements and refused to let her son testify. This denial violated plaintiff's due process right to a full and fair hearing regardless of the fact that her son was only 14 when the persecutions occurred. Her son's testimony may have "affected the outcome of the proceeding," and should therefore be allowed.

CA5 (11.12.04)
In an usual decision yesterday, United States v. Andrews, the Fifth Circuit held that the district judge “blatantly elect[ed] to ignore the plain language of the [sentencing] guidelines” when he sentenced Andrews to 120 months for fraud. The court remanded for resentencing by a different district judge, noting “[t]his is far from the first time we have had to reverse this judge” who “has breached the barrier between the rule of law and the exercise of personal caprice.”

Douglas Berman blogs about the decision here, with the promise of more to come.

We promise you coverage of all published opinions from our respective circuits, so here it is:

A Bruised Ego is Not Enough to Constitute an Adverse Employment Action

The Sixth Circuit applied its standard for determining the existence of an adverse employment action to a plaintiff claiming a violation of Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. According to the Sixth, loss of a teaching assistant, loss statute's as director of a department, and loss of laboratory space are not actionable. See Mitchell v. Vanderbilt Univ., No. 03-5503.

There Just Aren't Any Two Similarly Situated Employees, But Don't Fire the Ones Who Sue

If you think you have been discriminated against when you are fired for violence and copying master keys, it just won't do to find some co-employees not terminated for violence, and others not terminated for copying master keys. Indeed, you probably shouldn't file a suit unless you have a twin who utilized the same caliber gun while carrying the same number of copied master keys. Ah, but if they fire you after you file your EEOC complaint, now you're in business. See Singfield v. Akron Metro Housing, No. 03-3735.

No Qualified Immunity for Police Officer

The Sixth Circuit also decided to utilize a published opinion to inform us that a police officer who decides to forcibly take to the ground a mother of six who was complying with the instructions of an officer (though she had been ignoring the instructions of a movie-theater usher) is not entitled to qualified immunity in the subsequent claim of excessive force. See Solomon v. Auburn Hills Police, No. 03-1707.

Warrant Application Must Link Probable Cause to the Place to be Searched

Summary judge for plaintiff was reversed in a § 1983 action that alleged unreasonable search in a case where qualified immunity had been granted to an officer who relied upon a warrant application that did not link the place to be searched with the reason the search was necessary. See Mills v. City of Barbourville, No. 02-6404.

Fair Labor Standards Act Interpreted

Section 207(o)(5) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §207(o)(5), forbids a municipality from denying a timely compensatory leave request solely for financial reasons. See Beck v. Cleveland Police, No. 02-3669.

Don't Rob Banks

Sixth Circuit affirms that Speedy Trial Act dismissals may be without prejudice and joins other circuits in rejecting a claim that the federal bank robbery statute lacks a commerce clause basis of jurisdiction. See Untied States v. Robinson, No. 02-2232.

The Homeless Are People and Their Things Are Property

Municipality may not gather and dispose of homeless people's belongings without providing some means to reclaim. See Cash v. Hamilton County, No. 03-3916.

Finder of Fact Errs in Determining Credibility

In an opinion with far-reaching ramifications, Judge Merritt has published an order that finds the INS erred in finding an individual's testimony to be non-credible. (Why do they think everything must be published? And how does a court that never saw the witness get off saying the people who were there for the testimony were incorrect in finding him non-credible?) See Sylla v. INS No. 03-3077.

Lenders Can Charge Reasonable Application Fees

Finally, the Sixth Circuit affirmed summary judgment for the defendant on a claim that a $200 application fee violates the Truth in Lending Act. See Inge v. Rock Financial Corp, No. 03-1816.

CA8 (11.12.04)
The Eighth Circuit published five opinions today. Here are quick summaries from the court’s website.

USA v. Lucy Mitchell, 03-2323: Evidence was sufficient to support conviction for aiding and abetting the making of a material false statement to the INS.

Mohamed El-Sheikh v. John Ashcroft, 03-2944: Denial of asylum claim was not supported by substantial evidence because there were no agency findings as to whether: (1) petitioner's testimony was credible, (2) whether his testimony concerning police detention and abuse, if credible, established past persecution, and if so (3) whether the government had rebutted the presumption that petitioner has a well-founded fear of future persecution if he returns to Sudan; case remanded for further administrative proceedings.

Raisul Amin v. John Ashcroft, 03-3038: Immigration Judge had ample reasons for finding petitioner's testimony on past persecution was not credible; finding that petitioner is a citizen of Bangladesh was supported by the record.

Jani Strato, et al. v. John Ashcroft, 03-3421: Board of Immigration Appeals did not abuse its discretion in denying motion to reopen based either on its finding that the motion did not present any new evidence or its alternative holding that even if the evidence was new, it would not overcome the deficiencies in the prima face case for asylum.

USA v. Adil Gasim Al-Dabbi, 04-1053: Admission of testimony that defendant assaulted a member of the conspiracy and was connected to a firearm was not plain error as the evidence was relevant to show defendant's attempts to control members of the conspiracy through fear and violence; nor did admission of the testimony violate Rule 404(b); no Brady violation shown.

D.C. Circuit (11.11.04)
Three interesting opinions yesterday.

In United Servs. Auto. Ass'n v. NLRB, No. 03-1371 and 04-1001, the court upheld the NLRB order to reinstate an employee fired after distributing fliers protesting lay-offs. Loretta Williams distributed the fliers after work. When USAA management questioned her about the fliers, Williams—afraid of retaliation—said she did not distribute them. Six days later the company fired her for lying during the interrogation.

The court affirmed the NLRB’s decision that the interrogation was illegal because the company’s only purpose was to identify who had engaged in the protected concerted activity. In addition, USAA’s policy prohibiting distribution of non-company material in the work area during work hours was overly broad. Last, the court affirmed the NLRB’s order to reinstate Williams.

In Moore v. Hartman, No. 03-5241, the court affirmed denial of summary judgment for postal inspectors arguing they had qualified immunity. Plaintiff Moore was CEO in the 1980s of a company that made optical scanners meant to obviate the switch to the ZIP+4 system. He was unsuccessfully prosecuted for fraud, and Moore believes the postal inspectors prodded prosecutors to indict in retaliation for Moore’s lobbying efforts against the ZIP+4 system. The Court of Appeals affirmed the district court’s decision that the postal inspectors do not have sovereign immunity from retaliatory prosecution claims and remanded the case.

In DBI Architects, P.C. v. Am. Express Travel-Related Servs. Co., No. 03-7132, the court held that by paying off an American Express card with fraudulent charges by one of its employees, DBI led American Express to believe the charges were authorized and thus DBI could not recover all of the fraudulent charges under the Truth in Lending Act.

DBI’s accounting manager (also named Moore!) added herself as a cardholder on DBI’s American Express account without DBI’s knowledge or approval. Moore charged over $130,000 in clothing, travel, jewelry, and other personal expenses. As accounting manager, Moore was also in charge of paying the corporate credit card invoices, so her fraud went undetected for 10 months. When DBI found out, American Express refused to refund the charges, arguing that Moore was an authorized user and thus outside the provisions in the Truth in Lending Act. The court of appeals agreed. By identifying apparent authority as a limit on the cardholder's protection, Congress recognized that a cardholder has certain obligations to prevent fraudulent use of its card. DBI's troubles stemmed from its failure to separate the approval and payment functions within its cash disbursement process.

Should the Ninth Circuit be Split?

Jennifer Spreng, a bankruptcy attorney and former Judge Kleinfeld (CA9) clerk and Carl Tobias, a law professor at the University of Richmond, are debating that issue here.

Judges Kozinski and Thomas, of the Ninth Circuit, say "No" in this Wall Street Journal op-ed. (Via former Kozinski clerk, Eugene Volokh).

Judge Kozinski says "No" again in this response to Orin Kerr's post entitled "Forget About Splitting, Let's Talk About Merging."

Finally, the Greedy Clerks (re: brain trust of the federal judiciary) discuss Judge Kozinski's possible motive for keeping the Ninth as is here, and here.

About Us

We are a group of federal law clerks, lawyers, and law students. Some of us are members of the Federalist Society, others of the American Constitution Society. But our only agenda is to bring you summaries of recent appellate decisions.

BH covers the Ninth Circuit.
DoingItDaubertStyle is our tax expert. He covers the United States Tax Court, other tax-related cases of interest, and the First Circuit.
Happy Fun Lawyer writes about all things Second Circuit
Reversible Error covers the Eighth Circuit Court.
Sixth Circuit covers the Sixth Circuit.
Sunshine Docket is responsible for California’s Supreme Court. She also covers other circuits as needed.
Taking the Fifth reports on selected cases from the Fifth Circuit.

Please send any of us appellate decisions, information and reviews on practice guides, and CLE seminar notices. [You can email one of us by clicking on the respective name, above.]

If you are interested in writing with us, please email me.

CA1 (10.11.04)

When District Courts Dismiss: What To Do When Someone Attaches A Bunch Of Stuff To A Complaint.


Since I am now covering the First Circuit as well as appeals from the Tax Court, and today we honor veterans, I figure that I will start with yesterday.


Awhile back, some folks on Greedy Clerks were talking about the practice of some courts of appeal issuing very terse orders affirming the District Courts. One District Court clerk was heard to sarcastically remark, “As a district court clerk, I'd like to see the circuit courts go a step further and start grouping together 30 or 40 appeals and issue a single opinion saying "these are all affirmed- nice job district courts. You guys rule." .

Now, although there does not seem to be too much control over the brevity of opinions issued by Courts of Appeal, from time to time Courts of Appeal have lectured District Courts on issuing all-too-brief opinions that are “…terse and uninformative order[s]dismissing … [a] nine-count civil complaint for failure to state a claim upon which relief might be granted.” Rodi v. Southern New England School of Law, No. 03-2502. This case, represented one of those times.

Since most of the readers of this blog are quite happy with the law schools they went to (unless they talk to someone who is or was a student at a higher-ranked law school), the facts of this case are downright alien. The plaintiff, a New Jerseyan, it seems received a letter from the Dean of SNESL, which “ended with a pitch for enrollment.” This letter explained that although SNESL was provisionally accredited by the ABA, the Dean was confident all would work out. The plaintiff alleged that “the dean knew full well that SNESL had identifiable deficiencies that would almost certainly preclude ABA accreditation.” The plaintiff enrolled, and SNESL continued to be unaccredited, yet string everyone along, and doing crazy things like “cashiering” its full-time faculty.

The Plaintiff sued the school pro se, first in D. New Jersey (which was dismissed), and later in D. Mass. The plaintiff relied on Massachusetts’ consumer protection statutes, and the defendant claimed, in essence, that none of its representations about how darn sure that SNESL would be treated like a law school were really representations. The District Court, “...entered a cryptic order, providing in its entirety that the motion to dismiss should be allowed ‘for substantially the reasons outlined in defendants' memorandum of law.’” First the guy goes to a arguably deficient law school, and then he gets kicked out of court on Fed. R. Civ. P. 12(b)(6), because his non-law school submits a lot of paper explaining why they never promised that they would be a real law school. I guess they should have also added, “Look at the plaintiff. Does this guy look like he could be a lawyer?” Of course, at the District Court, nobody seems to have noticed that the defendants submitted a lot of evidence (including catalogues from their non-law school) with their 12(b)(6) motion to dismiss, and the motion was not converted to a MSJ.


The Plaintiff got wise and got a lawyer. Not surprisingly, the lawyer did better at the First Circuit then the pro se plaintiff did at the District Court.

The First Circuit begins with a nice discussion of what can be done found purely on a motion to dismiss, and what requires conversion to a motion for summary judgment. Then, the First Circuit, looking to state law, addressed exactly why all of the defenses that the defendants (the law school and the dean) were not adequate to defeat the defendant’s claims on their face.

They also address the plaintiff’s complaint, and the defendants claim that it “failed to plead with particularity.” The First Circuit appears to acknowledge that since the complaint is grounded in what amounts to a statutory fraud cause of action, “Fed. R. Civ. P. 9(b), requires that fraud be alleged with particularity. This heightened pleading standard is satisfied by an averment ‘of the who, what, where, and when of the allegedly false or fraudulent representation.’" Since the defendant attached the letters containing the misrepresentations to his complaint, the court, after “careful perscrutation” (I didn’t have to look to see what judge wrote this opinion), found that the letters satisfied the particularity requirement of Fed. R. Civ. P. 9(b), even though the complaint itself “attributes a gallimaufry of other substantially similar statements to the defendants.” (You may thank me for providing definitions for these words later.)

Finally, the court rejected the defendant’s statute of limitations claims by noting that under Mass. Gen. Laws ch. 260, § 32, a plaintiff whose suit is dismissed “for any reason” can recommence the same suit and avail himself of the earlier date of filing. Since the plaintiff had originally sued in New Jersey, and that suit was timely, all he had to do was commence the new suit within one year. Which he did.

Peabody and Arnold, who would never hire any SNESL graduates represented SNESL. Fredric Goss represented the plaintiff.

Update: See news coverage of this story here and here.

Alden v. Alden -- More adventures in Summary Judgment

The court also sent back Alden v. Alden, 04-1054 for about the same reason. In this case, the court held, “…Because the district court failed to comply with Fed. R. Civ. P. 56(c), and failed to address at least one significant legal issue, we vacate the judgment and remand for further proceedings.”

In this case, it seems, one party advanced the theory, in an untimely motion for summary judgment, that a contract (for use of trademarks) was repudiated by not making any payments on it. The district denied the motion to allow the late-filed motion for summary judgment, but “invited [the [arty] to submit a "letter" to the court, alerting the judge to anything.. [in the dispositions and ]” she should look at. The court agreed with the theory that the contract was repudiated, but then ruled that the case was time-barred because it was repudiated quite some time ago.

The First Circuit pointed out that, this practice effectively denied a party (that is, the one who did not submit the letter) the right to participate in summary judgment proceedings. In particular, the court held that failing to comply with Fed. R. Civ. P. 56(c) is not harmless, because 56(c) requires more than just an opportunity to submit a “letter” to the court, as “…the party preparing the response must have the motivation of knowing that it is the target of a summary judgment motion.”

The court also held that the District Court did not address a trademark issue relating to whether or not the defendant had actually used the trademarks at issue.

(you can view some of the trademarks at issue here)

Galloza v. Foy (Branti goes to Puerto Rico)

In Galloza v. Foy, 03-2658, the court held that regional administrators of Puerto Rico’s taxing agency court be dismissed based on their political affiliation (and were not entitled to 5th amendment due process). In a 1983 action, the court held that these former bureaucrats did not have their First Amendment rights to free association violated because an exception exists for where the position requires a political affiliation that is an "appropriate requirement for the effective performance of the public office involved." quoting Branti v. Finkel. The court applied Branti and found that the regional directors had “sufficient policymaking implications to avoid the constitutional proscription against politically motivated discharges.”

What I find a little strange is that the court opines that “It is difficult to imagine a more politically sensitive issue than the collection and apportionment of taxes. Taxation is considered an inevitable concomitant of American life.” I disagree. Although I have never practiced in Puerto Rico, for the most part, most people I know at the IRS, at all levels are proudly isolated from the political process. These regional directors were not setting tax rates, apparently they were taxed with “allocating collected revenues to the various municipalities [their region] serves.” They also had the authority to override preliminary appraisals and field audits.

Anyway, Branti counsels a two part test for determining whether the first amendment protects an employee.:

1. “…A high-level glimpse of the purpose of the employing agency and the role that the particular position occupies within it…. [to determine] whether the agency employing the plaintiff handle[s] matters potentially subject to partisan political differences…”
2. and to determine “…whether the specific responsibilities of the position sufficiently resemble those of a policymaker or office-holder whose functions are such that party affiliation is an appropriate criterion for tenure.”

The court held that court held that, “…the potential for partisan divergence increases exponentially when an agency has the discretion to affect the assessment of taxes and the distribution of the amounts that are collected.” This basically means, “The more you can bestow political favors on someone, the less chance you have of being protected under Branti.”

In the second prong, I think that the court sugarcoats this analysis by claiming that because each of these directors speaks for the agency, that the position is political. So what? Career IRS and DOJ people “speak” for the agency in court all the time. While there are a number of political appointments, I don’t see how “speaking” for the agency operates to convert someone’s position to something that is inherently political.

Granted, I understand that the alternative view would be to not only bomb the crap out of Puerto Rico but also to tell it how to run its system of taxation. Obviously, I would like a system of taxation to not be based on politics, though I don’t mind seeing rates being set as a political matter. This decision, however, seems to give the go-ahead to place mid-level political appointees in the role of making decisions regarding who owes what, and those decisions may be deference by the courts.

I think that the Puerto Rican legislature agreed with me. But the court disagreed.

The legislature created the Centro de Recaudacion de Ingresos Municipales on the understanding that the agency would be "independent and separate from any other agency or instrumentality of the Government of the Commonwealth of Puerto Rico." P.R. Laws Ann. tit. 21, § 5802. Although this language establishes CRIM as a separate and independent agency, nothing in the statute declares that the agency is to be a political eunuch.

The court dismissed the due process claims by finding that these appointees were not career appointees under Puerto Rican law, but are “confidential” appointees who do not have a property interest in their job.

US v. Fraser, 04-1100: Blakey, guidelines, and state-court continuances.

In US v. Fischer, 04-1100, the court held rejected a claim that under the guidelines, "a continuance without a finding, entered as a result of an admission to facts sufficient to warrant a finding of guilt under [the law of the state of conviction], is counted as a sentence for purposes of calculating criminal history points in sentencing." Citing United States v. Dubovsky, 279 F.3d 5, 8 (1st Cir. 2002). So, this means that all those neat programs that states have to keep people from being felons if defendants keep their noses clean do not mean beans when they face federal sentencing, unless the continuance is from a juvenile proceeding. USSG § 4A1.2(f). It also means that he gets points under the guidelines for being under a “criminal justice sentence” as the continuance has a "custodial or supervisory component."

The defendant also raised a Blakely issue that was not raised below. Since this guy was sentence pre-Blakely, “Blakely precedents are not plainly erroneous.” And therefore, at best, only Apprendi applies. The court held, in the alternative that 1) the continuance in the state court, even under Blakely, was one of those facts that don’t need to be provided to juries beyond a reasonable doubt; or 2) even if those other things were true, there is no basis for concluding that his sentence would be different.

Law Student Moot Court Competitors Take Note

The authors of the Bible of the Supreme Court - Supreme Court Practice (8th ed.) - have graciously made available two of its chapters for free student download. The press release reads:

Briefs on the Merits and Oral Argument, from Supreme Court Practice, Eighth Edition

The authors of Supreme Court Practice and BNA have agreed to make available for use by law school moot court and legal writing and research programs, at no charge, two chapters from this definitive treatise published by BNA.

These chapters, "The Briefs on the Merits" and Oral Argument," serve as a valuable introduction to persuasive writing and appellate advocacy conforming to the Rules of the Supreme Court of the United States, and thus are helpful in preparation for writing briefs and presenting oral arguments. Topics covered include the content of the brief, statement of the case or facts, the importance of oral argument, and the role of reason in oral advocacy. Legal writing faculty and moot court program organizers are encouraged to distribute these two handouts as supplements to existing resources, or to inform participants of this site, from which files may be printed out. Students should consult their individual law school instructor or competition moot court rules for information specific to their assignment.

You can download Chapter 13, The Brief on the Merits here. Chapter 14, Oral Argument, is available here.

Police Power to Seize Personal Propery Broad When Acting Pursuant to a Drug-Related Search Warrant

Dearmon v. Burgess, No. 01-3096 (8th Cir., Nov. 8, 2004) (McMillian, for Loken, CJ., and Hansen, J.).

Police officers executed a warrant allowing them to search and seize "crack cocaine, marijuana, heroin, weapons, U.S. currency, drug transaction records, and any other instruments of the crime." Id. at *2 (emphasis added). What does "any other instruments" cover?

A great deal, it seems:

[In this 1983 action], Appellants first argue that the district court erred in granting summary judgment because the officers seized items–jewelry, photographs, and personal papers–which were outside the scope of the search warrant. The district court did not err. Regardless of the fact that many of the items were 'personal property' of one or more of the appellants, they fail to show how any of the items seized were inconsistent with the parameters of the search warrant. The search warrant authorized the officers to seize drugs, weapons, money, drug records, and other instruments of drug transactions. The officers reasonably could have believed that the items seized were of such an incriminating nature as to constitute . . . evidence of criminal activity. As appellees note, the personal papers could have been drug records; the photographs could have depicted criminal activity; the jewelry could have been the fruits of a drug transaction; and the door locks and knobs could have carried fingerprints.

Id. at *4.
(Via Talkleft)

A Court does not "Double Count" when it Sentences a Defendant Once for Firearm Possession and Again for Possessing the Firearm While Selling Drugs.

United States v. Pierce, No. 04-1191 (8th Cir., Nov. 9, 2004) (per curiam - Murphy, Hansen, Riley, JJ.).

Defendant plead guilty to meth and firearm-related offenses, including one count of violating 18 U.S.C. § 922, the felon-in-possession statute. His base level sentence included points for the felon-in-possession offense. The court also added 2-points under § 3D1.2(b)(1) for possessing a gun while committing a drug related offense. The defendant argued that you can't give him points under § 3D1.2, possessing a firearm, because he already got points for possessing the firearm.

A unanimous three-judge panel disagreed:

In calculating a defendant’s offense level for a drug conviction, it does not constitute impermissible double-counting to apply a § 2D1.1(b)(1) enhancement, even though the defendant has also been convicted under § 922(g)(1) for possessing the same firearm.

Id. at *4 (citations omitted).

Slow week for the California Supreme Court . . .

IIRIRA Limitation of Jurisdiction to Entertain Habeas Petitions Examined

The Sixth Circuit has affirmed a dismissal for want of jurisdiction of a habeas petition challenging the Attorney General's refusal to grant a stay of deportation. See Moussa v. Jenifer, No. 03-2292.

Criminal Defendant May Waive Right to Appeal Sentence

The Sixth Circuit makes clear that it agrees that a criminal defendant may waive his right to appeal a sentence as a part of plea agreement. See United States v. Calderon, No.
03-1453/1583. It does not appear from the opinion that either defendant received a downward departure for substantial assistance. Lacking a substantial assistance departure, one has to wonder what benefit there was to the defendant. Why not just plead guilty without an agreement?

Civil Forfeiture and the Excessive Fines Clause

United States v. Dodge Caravan, No. 03-1925 (8th Cir., Oct. 27, 2004).

After a woman was convicted of various crimes relating to her personal, but illegal, use of prescription pain killers, the government brought a civil forfeiture proceeding. The district court agreed with the government and ordered the woman to surrender her Dodge Caravan.

A 2-1 panel disagreed with the trial court's analysis, and remanded the case. Although the panel did not rule that the confiscation of the woman's van per se violated the Excessive Fines Clause, it did encourage the trial court to conduct a more searching inquiry. The factors the trial court must weigh include (but are not limited to):

* "the extent and duration of the criminal conduct"
* "the gravity of the offense weighed against the severity of the criminal sanction"
* "and the value of the property forfeited"
* "an assessment of the personal benefit reaped by the defendant"
* "the defendant’s motive and culpability"
* "the extent that the defendant’s interest and the enterprise itself are
tainted by criminal conduct"
* "the monetary value of the property"
* "the extent of the criminal activity associated with the property"
* "the fact that the property was a residence"
* "the effect of the forfeiture on innocent occupants of the residence including children,"
* "any other factors that an excessive fine analysis might require.”

Id. at *8 (emphasis added).

Other bloggers have weighed in on this issue. Crime & Federalism (who tipped us off to the case) was appalled that the woman's van was taken from her. The EthicalEsq. and Bradley Parker agreed.

Appellate Advocacy Seminar in New York City

Please see Rain Man 2 for the details.

CA2 (10.5.04)

No new opinions from the Second Circuit today, but Legal Times is reporting that the Supreme Court is today considering the cert. petition in Muntaqim v. Coombe, a case concerned with the validity of "felon disenfranchisement" laws under the Voting Rights Act.

CA2 mavens will recall that last month, the court issued an unusual series of opinions to accompany a denial of a motion for rehearing en banc in that case. In particular, the odd concurrence of Judges Straub, Pooler, Sack and Katzmann suggest that, if the Supreme Court denies cert., they will join Judges Jacobs, Calabresi, Sotomayor and Parker in voting for rehearing. With eight votes, a renewed motion for rehearing would pass handily. Thus, this case seems destined for either en banc or Supreme Court review.

The original panel decision can be found here. From what I understand, under Second Circuit rules if the appeal were to be heard en banc, Senior Judges Meskill and Cardamone would be invited to sit on the en banc court because they were on the original panel.

Prosecutor may argue during closing "the government submits...that man is guilty"; and sleeping jurors do not violate the Sixth Amendment right to a jury trial. See United States v. Sherrill, no. 03-6458 (6th Cir. Nov. 5, 2004).

California (11.4.2004)

In People v. Briceno, S117641, the high court held that “any felony offense” that was committed for the benefit of a criminal street gang is a “serious felony” within the meaning of California’s three-strikes law. Consequently, the defendant’s two prior convictions—one for unlawful possession of a firearm by a felon for the benefit of a criminal street gang and another for carrying a concealed firearm for the benefit of a criminal street gang—can be counted as two strikes, “consistent with the voters’ intent to dramatically increase the penalties for all gang-related felony offenses.”

The court in McClung v. Employment Div. Dep't, S121568, held that a change in California law making nonsupervisory coworkers personally liable for sexual harassment is not retroactive. Ms. McClung filed a complaint against her employer and a coworker, Mr. Lopez, alleging claims of hostile work environment and failure to remedy a hostile work environment. The Court of Appeal affirmed summary judgment for the employer but, applying the amended law retroactively to Mr. Lopez, denied his motion for summary judgment.

In reversing, the California Supreme Court quoted the esteemed words of Chief Justice John Marshall: “It is, emphatically, the province and duty of the judicial department, to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”

How to Perfect a Lein in Your Mobile Home in Michigan

The Sixth Circuit has reissued as "Published" a decision reversing a district court's reversal of a bankruptcy court's decision concerning perfection of a secutiry interest under Michigan's Mobile Home Commission Act (MHCA). See In re: Thrush, No. 02-2332.

CA2 (10.3.04)

Today's lone opinion, Butts v. Barnhart, is an appeal from a district court's remand to the Social Security Commissioner for further proceedings. The sole issue on appeal was the proper scope of the remand -- whether it should be for an evidentiary hearing or a benefit calculation. (The court affirmed the remand for an evidentiary hearing, but imposed a 60 day limit for the Commissioner to complete the hearing).

The court also determined, as an apparent matter of first impression, that a district court's decision whether to remand for further proceedings or for a calculation of benefits should be reviewed for abuse of discretion. Of the courts to have explicitly contemplated the standard of review, this leaves the First Circuit as the only circuit that reviews such decisions de novo; the Second Circuit joined the Seventh, Eighth and Ninth in applying the abuse of discretion standard.

Whether Apprendi Requires an Indictment Charge Separate Occasions of Prior Convictions for Armed Career Criminal Act

According to the Sixth Circuit:

the determinations by a district court that prior felony convictions exist and were committed on different occasions, are so intimately related that the "different occasions" requirement of § 924(e) sufficiently comes within the exception in Apprendi for a prior conviction. Thus, it is our determination that this issue need not be pled in an indictment, submitted to a jury, and proved beyond a reasonable doubt. The "different occasions" language involves the issue of recidivism, "a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Apprendi, 530 U.S. at 488. Like the fact of a prior conviction, it is not a fact that pertains to the commission of the offense for which the defendant is presently charged. Thus, the "different occasions" requirement of § 924(e) cannot be significantly distinguished from "the fact of a prior conviction." See United States v. Burgin, No. 03-3577.

Ineffective Assistance of Appellate Counsel Analyzed

See Mapes v. Tate, No. 01-3891 (6th Cir. Nov. 2, 2004).

California (11.2.2004)

The Supreme Court of California released two opinions yesterday (sorry this post is a bit late):

1. In People v. Turner, S009038B, the court affirmed Richard Dean Turner’s sentence of death for two murders committed during a 1979 burglary. This is the second time the California Supreme Court has seen this case; in 1984, the court reversed Turner’s original judgment of death because the trial court failed to instruct on intent to kill as an element of the felony-murder and multiple-murder special circumstances. On retrial, a jury convicted the defendant again, and this appeal was automatic. The court rejected Turner’s allegations of various errors. While the court declined to address the constitutionality of the death penalty, leaving “decisions regarding the propriety of the death penalty to the Legislature and the People of the State of California,” the court catalogued cases upholding the death penalty’s constitutionality.

2. The California Tort Claims Act requires employees who wish to sue their public employer to notify the agency in writing first, thus helping the government to “adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” In Stockett v. Assn. of California Water Agencies, S108220, the court held that this written claim need not detail every theory the plaintiff might raise at trial as long as it specifies each cause of action—in this case, wrongful termination. The court upheld a jury verdict of $4.5 million for the wrongfully terminated employee.

12(b)(6) Requirement for Monell Action Complaint

A former patient sued a hospital (a private corporation sued under a joint-action theory of section 1983 liability) alleging that it violated her Fourth Amendment rights. However, she did not state any facts in her Complaint showing the hospital had a policy or custom of rights violations. Her complaint was properly dismissed. Crumpley-Patterson v. Trinity Lutheran, No. 03-3499 (8th Cir., Nov. 2, 2004).

Citing Doe v. School District of Norfolk, 340 F.3d at 613, Patterson argues she was not required to show, at this juncture, the existence of such a practice or custom because those facts may have been developed during discovery. The argument misses the mark. The district court dismissed the complaint because Patterson failed to include any allegations suggesting the existence of an unconstitutional practice or custom. On appeal, Patterson has again failed to allege the existence of an unconstitutional practice or custom and at oral argument conceded the absence of any such allegations in the complaint.

Effect of Collateral Attack on Predicate Felony in 18 U.S.C. § 922 Conviction

The defendant was convicted in state court on drug charges. Later, he was convicted under 18 U.S.C. § 922, the felon-in-possession statute. After his conviction under § 922, he won his collateral attack against his state court conviction (re: the predicate offense for § 922). Must the federal court vacate Padilla's federal conviction?

No. "'A convicted felon [must] challenge the validity of a prior conviction, or otherwise remove his [firearm] disability, before obtaining a firearm.'” United States v. Padilla, Nos. 02-50636 & 50286 (9th Cir., Nov. 2, 2004) (quoting Lewis v. United States, 445 U.S. 55, 65 (1980)).

New Book on Appellate Advocacy.

From noted appellate lawyer Raymond P. Ward comes this announcement:

The Defense Research Institute (DRI) has just announced publication of The Appellate Advocacy Handbook, available in CD or in hard copy. It includes 24 chapters and covers every phase of an appeal, from preserving the record in the trial court through briefing and oral argument -- even Supreme Court practice. I served as a co-editor for this project, so I can assure you that it's both informative and well written. I also wrote the chapter on writing style and co-wrote the chapter on standards of review.

CA2 (11.2.04)

One new Second Circuit opinion today -- the first in quite a while. In today's opinion, the court affirmed the Commodity Futures Trading Commission's six-month suspension of a clerk who started a fist-fight outside of the Commodities Exchange.

Let them Eat Exit Polls

In an unending flurry of electino appeals, the Sixth Circuit has granted an emergency stay of an injunction forbidding news agencies from encroaching Ohio's 100 ft. free zone around polls. See Beacon Journal v. Blackwell, No. 04-4313.

How You Gonna Challenge That?

Thickening the plot, the folks at Ohio State cite to an AP dispatch for authority that the Third Circuit has rejected a challenge to a district court opinion interpretting a national consent decree, has apparently limited the basis upon which the Ohio challengers may challenge voters.

Update: The Third Circuit has released its opinion on its web page.

Challengers Permitted in Ohio

In case you missed it, the Sixth Circuit has reversed two district court opinions that had barred challengers from the polls in Ohio. See Summit County v. Blackwell, No. 04-4311, and Spencer v. Blackwell, No. 04-4312.

In related news, the Ohio Supreme Court has mandamused the Ohio county boards of elections to allow one challenger in each polling place, rather than one per precinct. See State ex rel. Wolf v. BlackwellNo. 2004-1834.

Curiously, none of the federal judges has picked up on the rather obvious lack of (or at least diminshed) harm to a challenged voter unintentionally highlighted by Resnick’s dissent: "the Help America Vote Act ("HAVA"), 42 U.S.C. § 15301 et seq. requires election officials to give a provisional ballot to any voter whose name does not appear on the rolls or whom an election official believes would be ineligible to vote. 42 U.S.C. § 15482." If a challenged voter gets a provisional ballot that will be counted if it turns out the voter was properly registered, how is he harmed?

Thanks to DoingItDaubertStyle for reporting Justice Stephen's denial of cert. below.

U.S. (11.2.01)

Election Fun! Justice Steven’s in-chambers denial of stay of 6th Circuit’s decisions in Summit County v. Blackwell and Spencer v. Blackwell.

Florida (11.1.2004)

The United States Supreme Court today denied review of two cases from the Florida state courts.

In Dobrin v. Fla. Dep't of Highway Safety & Motor Vehicles, 874 So. 2d 1171 (Fla. 2004)(SCOTUS docket no. 04-275), the Supreme Court of Florida held that since the arrest record in a drunk-driving case did not establish probable cause for pulling over the driver, the police officer wrongfully suspended the defendant’s driver’s license. The correct test for probable cause under Whren v. United States, 517 U.S. 806 (1996), is whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.

In McKee v. City of Casselberry, 873 So. 2d 373 (2004) (SCOTUS docket no 04-177), the Fifth District affirmed, without comment, a city ordinance banning nudity in clubs that serve alcohol. The court found the ordinance constitutional because adopting an ordinance comparable to those of “surrounding cities is a valid exercise of the city's police power and no further inquiry into the city's motivation need be made" under City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002).

Per Laidlaw, Sierra Club May Sue to Vindicate Aesthetic Interest of Certain Members

The Sixth Circuit has reversed a district court decision that dismissed a case for lack of jurisdiction. The district court had concluded that a Sierra Club member alleged only a generalized grievance and not an actual, individualized injury because, according to the district court, the member was not a person "for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." American Canoe Assn. Comm’n v. Louisa Water & Sewer, No. 02-6018 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 183 (2000)).

More importantly, beyond granting this "Representational Standing" to Sierra Club, the panel granted "Informational Standing" to the named plaintiff. See Kennedy, J., dissenting.

Right to Attorney Does Not Require Appointment of a Fourth Counsel on Eve of Trial

So says the Sixth Circuit. See United States v. Green, No. 02-1571.

Amount of Loss under Sentencing Guidelines for Financial Crimes is Reduced by the Amounts of Restitution

In an interesting fact scenario for a fraud amount of loss case, a defendant got his sentence vacated. He had fraudulently received progress payments on a loan from the Small Business Administration. He intended to complete the project, so the intended loss was zero. He eventually did complete the project, so the amounts he expended in doing so, contrary to the conclusion of the district court, are credited in calculating loss. Thus, even though the SBA eventually foreclosed and lost money, none of that is attributable to the fraud. See United States v. Rothwell, No. 04-5018. Never mind that on remand, Blakely will have been used to find the Guidelines unconstitutional and the district court will give the poor sap the same sentence he got the first time.

Working Late

Finally, in case you are having polling problems, the Sixth Circuit will be open Saturday morning, and Sunday, too, if you really need them. Phone them for details. (Your faithful blogger makes no promises as to whether he will be around to report on your weekend success or failure in that revered forum.)

CA2 (10.29.04)

The Second Circuit issued three opinions today affirming criminal convictions and sentences:

In United States v. Borrego, the court held that a district court does not have to resolve disputed sentencing issues, the resolution of which would not actually affect the defendant's sentence. In this case, the defendant received a downward departure under USSG 5K1.1, but argued that the court erred in refusing to resolve other disputed issues.

In United States v. Monsalve, the court summarily affirmed the district court's sentence, finding that the defendant had waiver her appellate rights in a plea agreement.

And in United States v. Gamble, the court affirmed the appellant's cocaine and firearms convictions over a number of arguments. Of all of those arguments, perhaps the most interesting was appellant's contention that his sentence (pursuant to the Armed Career Criminal Act, 18 U.S.C. 924(e)(1)) violated the Eighth Amendment. Today's opinion contains no real discussion of the issue however; apparently the court already held that such sentences are not unconstitutional. Makes me wonder why they bothered to publish this one.

Pre-Election Voter Challenges in Ohio Enjoined

A Sixth Circuit panel composed of one Carter appointee and two Clinton appointees has denied an emergency motion to stay the temporary restarining order of a Clinton appointed district court judge forbidding the conduct of pre-election voter challenges in Ohio. See Miller v. Blackwell, No. 04-4299/300/301. Ken Blackwell, the Republican Secretary of State, was the only defendant not to appeal the district court injuction. Jim Petro, the Attorney General and likely Blackwell opponent for the Republican nomination to be the next governor of Ohio, was among those who did appeal. Politics plays a role in all of this somehow; just how, I'm not sure.

In other less-than-earth-shaking-published opinions out of the Sixth Circuit today, we have:

-- Anti-Cyber-Squatting Law Applied to "www.foradodge.com" Registrant. See
DaimlerChrysler Corp v. Net Inc, No. 03-1950.

-- The "Based Upon Public Allegations or Transaction" Bar to Qui Tam Actions, 31 U.S.C. § 3730(e)(4)(a), Applied. See Dingle v. Bioport Corp, No. 03-1841.

-- A District Court’s Award of Summary Judgment in Favor of the United States on Claims of Gender and Disability Discrimination Brought Pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) Affirmed. See Peltier v. United States, No. 03-3623.

-- Summary Judment in Favor of All Defendants in a § 1983 Action. See Tucker v. City of Richmond, No. 03-6336.

-- Affirmance of Summary Judment That a Nursing Home Was Failing to Meet the Minimum Medicare Participation Requirements of 42 C.F.R. § 483.25(c). See Livingston Care v. HHS, No. 03-3489.

Why Hire an Appellate Lawyer?

Thanks to Raymond P. Wardfor bringing an article entitled, "Appeal in Error: Common Mistakes Made in Appeals" to our attention. Although students of critical thinking will be suspicious of an article, by an appellate lawyer, telling us why we should hire appellate lawyers in general, Mr. Stolley offers several compelling reasons for hiring an appellate lawyer. Indeed, I cringe when listening to very able trial lawyers fumble typical oral argument questions, e.g., "What is the standard of review?"

If you would not hire a criminal defense lawyer to plan your estate, then why would you hire a trial lawyer to handle your appeal? The skills, after all, are very different. Although Kenneth Starr has tremendous credibility as an appellate lawyer, would you want him arguing before a jury?

CA2 (10.27.04)

No new opinions from the Second Circuit yesterday, so instead I present you with this snippet from a recent interview with George P. Bush, son of Florida Governor Jeb Bush, who is supposedly the first lawyer in the Bush clan.

Council: Are there any lawyers in your family?

Bush: There are none. My grandfather's cousin — I have one extended family member, and I think he is a federal district judge up in Connecticut, Maine or something like that. I think he's a Walker, so he's kind of an extended family member.

Hmm. He's talking about John M. Walker, Jr., Chief Judge of the Second Circuit. I realize that Chief Judge Walker is no governor or president, but how does a lawyer -- especially one who himself clerked for a federal judge -- forget that a relative is chief judge of a federal appeals court?

Judicial Candidates Are People Too

In a Wednesday afternoon opinion, the Sixth Circuit refused to stay an injunction that prohibits the Kentucky Judicial Conduct Commission from enforcing a ban on judicial candidate's speech. See Family Trust Fndtn v. Kentucky Judicial Conduct Comm'n., No. 04-6250 (6th Cir. Oct. 28, 2004).

Footnote one points out something of a tactical blunder: The Commission stated at oral argument that it was not a proper party to the action, as, it claimed, it was not responsible for enforcing the regulation. One wonders: If the commission is not responsible for enforcing the ban, why would they care that they had been enjoined from doing so, and where would be the "irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted." Id. at 2.

California (10.27.04)

All quiet on the western front . . . . No new opinions expected from the Supreme Court of California this week.

CA9 (10.27.04)

Kahawaiolaa v. Norton
Exclusion of native Hawaiians from the Department of Interior's regulations acknowledging the federally recognized status of Indian tribes does not violate the Equal Protection clause of the Fifth Amendment. The court found the claim justiciable, distinguishing their claim to invalidate a provision that forbids them from applying to the Department of Interior for
recognition under the same regulatory criteria applied to indigenous peoples in other states from an attempt to have the court federally recognize an Indian tribe. The claim received rational basis scrutiny since the discrimination was among indian tribes, not against indian tribes as a group since the recognition of indian tribes is a political, not judicial determination.

Chavez-Perez v. Ashcroft
The INS does not violate the equal protection clause when it discriminates based on whether an alien's conviction record has been expunged. Petitioner was removed as an alien convicted of a felony controlled substance by the INS. At issue was whether the removal order violated petitioner's rights under the equal protection clause.

Because at the time his deportation order was upheld Chavez-Perez had suffered a judgment of conviction for a drug offense, we conclude that the INS has a rational basis for treating him differently from those aliens whose convictions have previously been expunged, or whose charges were deferred and later dismissed.

U.S. v. Fernandez
The court affirmed defendants' convictions for RICO and drug-trafficking charges, but vacated their sentences pending the Supreme Court's resolution of Blakely v. Washington.

Khotesouvan v. Morones
An alien ordered removed whose removal is not reasonably foreseeable cannot raise a colorable claim for release under the Due Process Clause of the Fifth Amendment until at least 90 days of
detention have passed. Because repatriation was futile, the petitioners claimed that their continued detention served no purpose other than punishment. The court held, however, that since the government was holding the alien under § 1231(a)(2), a provision authorizing
detention for 90 days only, the danger of “indefinite, perhaps permanent” civil confinement does not exist.

Aggregation of Government Employees Under the Family Medical Leave Act

Fain v. Wayne County Auditor, No. 03-1720 (7th Cir., Oct. 27, 2004) (Rovner for Easterbrook and Manion, J.J.)

The Family Medical Leave Act only applies to employers who employee 50 employees or more. The Wayne County Auditor's office only employed 12 employees. Is the Auditor's office nonetheless covered under the FMLA? A unanimous three judge panel said, "Yes."

Fain worked for the Auditor’s Office, which was located in the County building along with many other departments of the County government. Although the Auditor employed only 12 employees, the County employed significantly more than the 50-employee threshold for FMLA employee eligibility within that County building. Accordingly, this appeal turns on whether the Auditor should be considered independent from the County.

In determining whether an office is indepedent, the court will look first to state law. If state law does not provide the answer, a Census of Governments will provide the answer.

Threats Against the President (18 U.S.C. 371) Will be Analyzed Under the Reasonable Person Standard

United States v. Fuller, No. 03-4081 (7th Cir., Oct. 27, 2004) (Kanne for Flaum, CJ., and Coffey, J.).

We [ ] adhere to the objective standard for a true threat consistently employed by the court. Under this standard, a communication is a true threat if a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President.

A District Court's Informed Decision to not Depart Downward is not Reviewable

United States v. Dowell, No. 03-2747 (7th Cir., Oct. 27, 2004) (Kanne for Posner and Williams, J.J.)

This court determined in United States v. Franz that a district court’s refusal to depart downward may only be reviewed if the sentence was imposed in violation of the law. Thus, we review the sentence only if there is a legal error involved. There is no legal error, and therefore no jurisdiction for appellate review of a district court’s refusal to depart downward, when the district court understood that it had the legal authority to depart but, in its discretion, chose not to do so.

Abuse of Trust Enhancement Under §3B1.3.

Can the government or a government agency be a victim of an abuse of trust?

In United States v. Britt, No. 04-10151 (11th Cir., Oct. 26, 2004), a unanimous three-judge panel (Black, Carnes, and Hull) said, "Yes."

In addition to the two elements of the abuse-of-trust enhancement noted above, for the enhancement to apply, the defendant must have been in a position of trust with respect to the victim of the crime. Although we have not addressed this requirement specifically with respect to a crime committed by a government employee, our conclusion in Smith suggests the United States government, or more specifically the SSA, is the victim of Britt’s offense.

Id. at *7-8 (citations and quotation marks omitted).

Ohio Secretary of State May Only Count Provisional Ballots Cast in the Proper Precinct

In an afternoon opinion, the Sixth Circuit has reversed a decision that read the Help America Vote Act so as to require Ohio to count any provisional vote cast in the correct county. See Sandusky County v. Blackwell, No. 04-4265/66 (6th Cir. Oct. 26, 2004).

CA9 (10.26.04)

One new opinion on the ninth circuit today

Holley v. Meyer
The court reversed a summary judgment ruling in a Federal Housing Administration claim alleging discrimination. The court remanded to allow the district court to determine 1) whether Meyer personally liable as principal for the actions of his agent, 2) Meyer’s personal liability for negligent supervision of his agent, and 3) Meyer’s liability based upon piercing the corporate veil. In remanding, the court is allowing an amendment of the complaint to raise the piercing the corporate veil theory.

Clean Air Act Injunction Vacated for Failure to Give Proper Notice

The Sixth Circuit has also vacated an injunction concerning "fugitive dust" under the Clean Air Act for failure to give exhaust the 60-day notice requirement prior to bringing an enforcement action subsequent to the entry of a consent decree. The Court affirmed the dismissal of all other claims, due to the existence of the consent decree. See Ellis v. Gallatin Steel Co., 04-6421/22/29/78 (6th Cir. Oct. 26, 2004).

Bruton Lives

The Sixth Circuit also held that the admission of a police officer's grand jury testimony about a conconspirator's false but allegedly inculpatory statement concerning another defendant violated that other defendant's confrontation clause rights under Bruton and similar cases and was not harmless. See United States v. Macias, No. 03-5226 (6th Cir. Oct. 26, 2004).

Non-Encrypted Copyrighted "Codes" Are Not Likely Protected Under DMCA

The Sixth Circuit, in vacating a preliminary injunction, has ruled that a non-encrypted but copyrighted computer code is not likely to prevail at trial, and is thus not likely protected by general copyright law or the Digital Millennium Copyright Act. See Lexmark Int’l Inc v. Static Control, No. 03-5400 (6th Cir. Oct. 26, 2004). A concurrence believed that this does not go far enough, a dissent finds that it goes too far.

CA2 (10.26.04)

In United States v. Perez, the Second Circuit affirmed appellant's conviction over a claim that the district court improperly struck a juror for cause. The juror professed his ability to be impartial, but was an occasional criminal defense lawyer who was in the process of applying to the district's CJA panel.

Few prospective jurors will admit to bias, and most, when asked if they can be fair and impartial in deciding a matter before them, answer "Yes." Thus, the law charges the trial judge with ferreting out partiality of a prospective juror during the voir dire. There are no fixed rules of guidance because a variety of disparate factors must be weighed. The trial court, who observes the prospective juror and his demeanor while answering questions, has a superior opportunity to get some sense of the potential juror's mind-set, and to assess whether that person can decide the case in a truly fair and impartial manner. This exercise by the trial court of its insight, experience, and judgment is one we rarely second guess.

Two other, less interesting, cases decided by the CA2 so far today:

In JLM Industries v. Stolt-Nielson, SA, the court determined that an antitrust claim is arbitrable under the Association of Ship Broker & Agent's standard form contract for the parcel tanker industry (known as "ASBATANKVOY").

And in Rubens v. Mason, the court reversed a grant of summary judgment in a legal malpractice case because the district court improperly relied on a affidavit from an arbitrator in the underlying arbitration; the court held that the affidavit's prejudicial value far outweighed its probative value and should not have been admitted.

Mere Receipt of Child Pornography Does Not Allow a Sentence for Trafficking in Violation of the Child Pornography Prevention Act of 1996

The Sixth Circuit found that a district court erred by sentencing a defendant for receipt of child pornography, instead of sentencing for mere possession. Even though a jury found defendant guilty of receipt, and not of possession, the Court held that sentencing for trafficking is not permissible "when there is no evidence of trafficking beyond the receipt that is inherent every time there is evidence of less culpable ‘possession.’" See U.S.S.G. § 2G2 & 2G4. The case also rejected a claim that the government had failed to sufficiently prove that the images involved were depictions of actual children. See United States v. Farrelly, No. 03-5825/5928 (Oct. 25, 2004).

Fifth Amendment Right in Documents Is Not Created By Dissolution of a Corporation; and Magistrate Referrals May Be Made Informally

The Sixth Circuit also clarified the application of the Fifth Amendment right against compelled testimony in documents of a dissolved corporation and held that there is no requirement of a formal order of referral in order to refer a matter to a magistrate. See United States v. B & D Vending Inc., No. 03-6008 (6th Cir. Oct. 25, 2004).

Daubert Applied

The Sixth Circuit has utilized a published opinion to remind the world that a district court judge must act as a gatekeeper in admitting expert testimony, but must allow individuals to qualify as an expert based upon experience. See Dickenson v. Cardiac and Thoracic Surgery, No. 03-5355 (6th Cir. Oct. 25, 2004).

CA2 (10.25.04)

Today's Second Circuit decision reads like something out of Law & Order. Following remand from the Supreme Court in light of Sell v. United States, the Second Circuit considered in United States v. Gomes whether the district court properly authorized the government to involuntarily medicate a criminal defendant so as to render him fit to stand trial. Applying the Sell factors, the court determined that it did. The court also noted that the Supreme Court did not specify a standard of proof for the Sell factors, and held that the government must demonstrate the factors by clear and convincing evidence.

Weekend News: Provisional Balloting to be Precinct-Wide in Ohio Rather than County-Wide, at Least for Now

While the opinion is not yet on the Sixth Circuit site, the AP reports that the Sixth Circuit was busy Saturday reversing the lower court ruling that demanded that Ohio Secretary of State Kenneth Blackwell allow provisional balloting for anyone who showed up to vote in the right county, but wrong precinct. The report implies that the Democrats are deciding whether to request en banc review or cert. According to the article:

In Missouri and Colorado, judges have ruled that votes in the wrong place
don't have to be counted. Provisional ballots are not counted until after
the election. They are set aside and inspected by Democratic and Republican
election board employees to establish their validity.

States nationwide have adopted individual standards for when a
provisional ballot can be cast and counted.

Twenty-six states and the District of Columbia require a provisional ballot
to be cast in the correct precinct, or it will not count.

For background, see our earlier coverage.