Appellate Law & Practice

This blog is devoted to appellate law and will provide case summaries and links to articles on appellate advocacy. Please send your news and views to Appellate [at] gmail [dot] com. We also welcome new contributors. Email us if you are interested.

Tuesday, November 30, 2004

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.

Monday, November 29, 2004

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...

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.

Saturday, November 27, 2004

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.

Friday, November 26, 2004

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.

Thursday, November 25, 2004

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."

Wednesday, November 24, 2004

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.)

Tuesday, November 23, 2004

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.


Monday, November 22, 2004

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.

Sunday, November 21, 2004

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.

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