I'm Moving!

I hope you'll join me over at Enotes, where I'll continue to write about the best and worst of each day's federal appellate decisions.

The site went live this afternoon, and I just put up my first new post about two divided habeas decisions from the Sixth Circuit.

As Judge Wapner Always Said, You’ve Got To Get It In Writing

Perles v. Kagy, 05-7076 (D.C. Cir., Jan. 16, 2007)

Here’s a great addition to contract casebooks: a newbie lawyer who worked for a personal injury attorney loses millions in contingency fees because she never had a written contract with her boss. In an opinion by Judge Kavanaugh, the D.C. Circuit explains why an oral agreement and a history of past performance was not enough to create a contractual right to share in the fees when her boss finally hit the jackpot. This is a must read for every lawyer who thinks that he or she is working on contingency.

Al Qaeda Bomber Wins Appeal

U.S. v. Ressam, 05-30422 (9th Cir., Jan. 16, 2007)

In a divided decision, the Ninth Circuit partially reverses the conviction of Millennial bomber Ahmed Ressam, an Al Qaeda operative who tried to smuggle a bomb from Vancouver to blow up LAX. Ressam was convicted on nine different charges, including 18 U.S.C. § 844(h)(2), which makes it a crime to carry an explosive during the commission of another felony. In Ressam’s case, the underlying felony was using a false name on the customs form Ressam filled out on his ferry trip from Vancouver to Washington.

On appeal, Ressam challenged this aspect of his conviction, arguing that the statute at issue requires some connection between the explosives and the underlying felony. Writing for the majority, Judge Rymer notes that the Third and Fifth Circuits have both rejected the need for any connection, since the plain meaning of "during" requires only that carrying of the explosives and the commission of the felony occur at the same time. However, the Ninth Circuit has rejected this logic in a similar statute that penalizes the use of a firearm during a felony, and she concludes that this precedent is binding. Judge Alarcon dissents, arguing that the majority is adding an element of the crime to the statute. That is a job for Congress, not the courts.

Justice O'Connor Writes Again

J & G Sales v. Truscott, 04-16976 (9th Cir., Jan. 16, 2007)

Today's Ninth Circuit decisions include an opinion authored by retired Supreme Court Justice Sandra Day O'Connor, who sat with the Court back in October. The decision involves a gun store's challenge to a demand letter from the Bureau of Alcohol, Tobacco, Firearms, and Explosives, ordering it to turn over data that it is required to keep under the Gun Control Act of 1968. The district court granted summary judgment for the gun store on the ground that the letter, which asked for records on how the store acquired its second-hand firearms, exceeded the ATF's statutory authority. On appeal, the Ninth Circuit reverses and joins the Fourth Circuit in upholding the ATF's authority to issue these sorts of letters.

Seventh Affirms IRS Conclusion That Antarctica is Not a Foreign Country

Arnett v. Commissioner of Internal Revenue, 06-1934 (7th Cir., Jan. 16, 2007)

In a decision that tests the scope of agency deference, the Seventh Circuit affirms a Tax Court ruling that Antarctica is not a foreign country for tax purposes. Petitioner Dave Arnett spent the 2001 tax year providing support services at a National Science Foundation station on Antarctica. The Internal Revenue Code allows an exemption for income received from work in a foreign country, so Arnett did not pay taxes on nearly $50,000 in wages that year.

Not so fast, said the IRS, pointing to a Treasury regulation defining "foreign country" as a territory under the sovereignty of a foreign nation. Because no nation claims sovereignty over Antarctica, the IRS concluded that it does not qualify as a foreign country. Accordingly, wages earned in Antarctica are taxable. Although previous taxpayers have litigated this issue unsuccessfully, Arnett pointed to a change in Treasury regulations that broadens the definition of foreign nation. However, the Tax Court disagreed with this new argument, and the Seventh Circuit affirms.

In Divided Rulings, Ninth Circuit Overturns Two Jury Verdicts

Fisher v. City of San Jose, 04-16095 (9th Cir., Jan. 16, 2007)
Efaw v. Williams, 04-16920 (9th Cir., Jan. 16, 2007)

It’s rare to see courts overturn jury verdicts in civil cases, but today’s Ninth Circuit decisions include two notable exceptions.

Fisher involves a plaintiff’s claim that his rights were violated by a warrantless arrest. Plaintiff Steven Fisher’s story began with two twelve-packs, the 1999 World Series, and some rifles that needed cleaning. It ended with police leading Fisher away in handcuffs after a twelve-hour standoff. A jury deadlocked on the felony charges against Fisher, and he then pleaded no contest to a misdemeanor charge of brandishing a firearm in the presence of a security officer.

Fisher proceeded to file a § 1983 law suit alleging various constitutional claims against the City of San Jose and its officers, but an unsympathetic jury rendered a defense verdict. The trial judge proved a bit more sympathetic, granting Fisher’s motion for judgment as a matter of law against the City on the warrantless arrest claim. On appeal, a divided Ninth affirms. Judge Berzon writes the lead opinion, which is joined by Judge Thompson. Judge Callahan dissents, arguing that it is the role of the jury to determine whether the police acted reasonably given the potentially explosive situation, and its verdict is supported by the evidence and the law.

Efaw is another § 1983 case, in which the plaintiff waited seven years before serving a defendant who allegedly participated in his jailhouse beating. Although the rules require that defendants be served within 120 days of the filing of a complaint, the district court granted plaintiff Robert Efaw several extensions and ultimately denied defendant Teresa Williams’ motion to dismiss for improper service. Meanwhile, Efaw's main attacker died two years into the law suit. Efaw’s claims were eventually tried to a jury, which rendered a verdict against Williams, assessing $100,000 in damages.

Williams appealed, and a divided Ninth reverses. The majority explains that a seven year delay in service is simply too long in the absence of any facts to justify the delay, such as a mistake by the plaintiff or evasion by the defendant. Moreover, Williams was prejudiced by the delay, since a key co-defendant died before the matter could proceed to trial. Accordingly, the majority concludes that the district court abused its discretion in denying Williams’ motion to dismiss.

Judge Fletcher the Younger dissents. He agrees that it is a close case and that seven years is an awfully long time. However, in this case the co-defendant died two years into the proceedings, at a point when Efaw was not represented by counsel. Because the co-defendant’s death occurred at a time when Efaw still had a decent excuse for failing to serve Williams, and because Williams did not point to any additional prejudice during the next five years, Judge Fletcher would affirm the district court’s decision and uphold the jury verdict.


Is The Fifth Hiding Its Criminal Reversals?

U.S. v. Martinez, 05-11384 (5th Cir., Jan. 12, 2007)

The Fifth Circuit tends to have a bad rap here and elsewhere when it comes to affirming criminal convictions and sentences. Could this reputation be due in part to a tendency to relegate its reversals to the dustbin of unpublished opinions? One of these unpublished pro-defendant decisions - not the first I’ve seen in recent weeks - came on Friday, as the Court reversed a drug dealer’s conviction on Confrontation Clause grounds. On appeal, the government had conceded that the testimony at issue violated the defendant’s Sixth Amendment rights, but argued that the error was harmless. The panel disagrees with the latter proposition, explaining that it cannot conclude that the admission of the offensive statements was harmless beyond a reasonable doubt. The panel even cites the Ninth Circuit for its harmless error analysis. No wonder the decision is not published.


Judge Pregerson Dissents on Constitutionality of DNA Act

U.S. v. Reynard, 02-50476 (9th Cir., Jan. 12, 2007)

In this Ninth Circuit decision, a divided panel upholds the constitutionality of the DNA Act, which requires most federal offenders to provide a blood sample for a federal DNA database. Defendant John Reynard is a bank robber who served his prison sentence and was out on supervised release. However, he refused to submit a sample, so the district court sent him back to prison.

On appeal, the panel unanimously follows every other circuit in rejecting most of Reynard’s challenges to the law. Judge Pregerson writes the bulk of the lead opinion. But solidifying his stripes as one of the mavericks of the federal bench, Judge Pregerson concludes that the DNA Act is unconstitutional because it exceeds Congress’ powers under the Commerce Clause. Fellow panelists Tashima and Clifton are unimpressed with their colleague’s logic, so they finish the opinion upholding the Act and affirming the revocation of Reynard’s supervised release.

Update: Thanks to How Appealing, I see that Judge Pregerson is not the first to question the DNA Act's constitutionality. Earlier this week, Judge Young of the District of Massachusetts wrote a fiery paean to the Fourth Amendment, which concluded that the Act was unconstitutional as applied to a defendant who was convicted of diverting social security benefits. Note that Judge Young was also the author of an important sentencing decision that a leading commentator described as "remarkable and foreshadowing" of the Supreme Court's subsequent decisions that mandatory sentencing guidelines are unconstitutional. So, despite its near-perfect record in the circuits, perhaps the DNA Act is not long for this world.

Interesting Sentencing Concurrence

U.S. v. Henry, 04-3076 (D.C. Cir., Jan. 12, 2007)

Those who follow sentencing issues will be very interested in Judge Kavanaugh’s concurrence to an otherwise run-of-the-mill D.C. Circuit sentencing appeal. Citing sentencing guru Doug Berman, among others, Judge Kavanaugh offers a thoughtful critique of the post-Booker approach to sentencing, arguing that the current regime is not that different from the pre-Booker regime. Although judges now have discretion to sentence outside the Guidelines, they are also encouraged to consider conduct that was not proved to a jury. He questions whether this approach resolves the constitutional concerns that gave raise to Booker in the first place.

Update: Berman responds by channelling Vince Vaughn, writing, "The DC Circuit and Judge Kavanaugh are so money, and they don't even know it!"

Divided D.C. Circuit Allows Indonesian Torture Claims against Exxon to Proceed

Doe v. Exxon Mobil Corp., 05-7162 (D.C. Cir., Jan. 12, 2007)

In a divided decision, the D.C. Circuit gives the green light to a law suit over Exxon Mobile’s alleged involvement in atrocities committed by the Indonesian military. The plaintiffs sued based on violations of the Alien Tort Claims Act and the Torture Victims Protection Act, as well as various common law torts. But the State Department weighed in, arguing that the action threatened to harm the United States’ relationship with Indonesia, and particularly its partnership in the war on terror. The district court took this warning to heart and dismissed all the statutory claims. However, it let the common law claims proceed.

Exxon filed an interlocutory appeal, arguing that the case presented non-justiciable political questions and that the district court’s decision to allow any claims to proceed ran afoul of the separation of powers doctrine. Accordingly, Exxon asked the Court to hear the appeal under the collateral order doctrine or to grant a writ of mandamus directing the district court to dismiss the case in its entirety.

A divided D.C. Circuit dismisses the appeal for lack of jurisdiction. Writing for the majority, Judge Sentelle explains that this case does not fall within the collateral order doctrine, which allows only rare exceptions to the general rule that the circuits may only hear appeals of final orders. In particular, the district court’s commitment to keeping a tight rein on discovery will help minimize any impact on U.S. relations with Indonesia.

Likewise, Exxon’s concerns do not justify the extraordinary remedy of mandamus. In the majority’s view, the State Department urged caution but did not unequivocally demand outright dismissal of all claims. Under the circumstances, a private corporation like Exxon is not entitled to invoke separation of powers as grounds for mandamus. Of course, if the government had intervened in this appeal, the outcome may well have been different.

Judge Kavanaugh, who recently joined the bench from the White House, dissents. He argues that the majority is failing to give adequate deference to the State Department’s concerns that this law suit could damage relations with Indonesia. Despite his disagreement with the outcome, Judge Kavanaugh takes heart in his view that the majority opinion will require the district court to dismiss the case if the State Department weighs in again to urge dismissal of the state law claims. Interestingly, his dissent reads like a majority opinion, so it appears that there may have been a late switch in the panel’s vote.


Procedural Nightmare for Plaintiff With Judgment Against Defunct Agency

Delay v. Gordon, 05-36108 (9th Cir., Jan. 11, 2006)

This Ninth Circuit decision addresses a fascinating but complicated procedural problem about what happens when a plaintiff wins a judgment from a now-defunct branch of government. The defendant is the Pacific Northwest Basins Commission, which was a joint effort between federal and local governments and private entities to develop the Columbia River basin. The Commission was established by President Johnson in 1967 and disbanded by President Reagan in 1981.

During its existence, the Commission was sued in Oregon District Court by William Delay, a hydrologist who claims that the Commission reneged on its contract with him. The Commission was - and is - defended by the Department of Justice, which initially argued that the suit belonged in the Court of Claims, because it involved a contract with the United States. The district court agreed, but by the time the matter could be heard in the Court of Claims, the Commission had been disbanded. At that point, the Department of Justice changed positions, arguing that the Commission was no longer a federal entity, so the suit went back to the district court.

Delay eventually won a jury verdict of $140,430 plus interest and costs. He brought his claim to the Office of Management and Budget, which informed him that the defunct Commission had only $28,855.30 remaining in its account. OMB offered to pay this amount to Delay in exchange for a full release, but Delay refused and tried in vain to find other ways to collect the full amount. He died in 1998 before ever seeing a dime of the judgment.

This appeal involves a motion by Delay’s beneficiaries under Rule 60(b) of the Federal Rules of Civil Procedure to hold the United States liable as the real party-in-interest. The district court denied the motion, and the Ninth Circuit affirms. The Court is sympathetic to the fact that Delay could have obtained a judgment in time to collect if the United States had not taken inconsistent litigation positions. Nonetheless, the Court explains that the movants have not established the conditions necessary to modify the judgment under Rule 60(b). So it looks like the Delay family is out of luck, unless of course some President ever decides to revive the Commission.


One Less Law Suit for Microsoft To Worry About

Parker v. Microsoft, 07-1017 (Fed. Cir., Jan. 10, 2007)

This Federal Circuit decision affirms the dismissal of a patent infringement suit against Microsoft. Plaintiff Charles Parker claims that he holds a patent for the "elemental atom," and that Microsoft is presently using his invention without his permission. With little ado, the Federal Circuit agrees with the district court’s findings that Parker’s allegations are "fanciful," "fantastic," and "delusional." I’d love to see the briefs for this case.

Divided Ninth Rejects Fourth Amendment Claims and Affirms Conviction

U.S. v. Crapser, 05-30456 (9th Cir., Jan. 10, 2007)

Admirers of one of the greatest Fourth Amendment champions still on the bench will be interested in this Ninth Circuit decision, which affirms a defendant’s conviction for being a felon in possession of a firearm. The defendant appealed, arguing that the district court erred by denying his motion to suppress guns found in his motel room. The fact-intensive appeal raises several Fourth Amendment questions: (1) was the defendant seized when officers talked to him outside of his motel room; (2) if the defendant was seized, was the seizure reasonable; (3) and finally, did the defendant voluntarily consent to the officers’ search of his hotel room. The majority of Judges Graber and Goodwin answers (1) no; (2) yes; and (3) yes. Because the majority finds no Fourth Amendment violation, it affirms the conviction.

Predictably dissenting, Judge Reinhardt writes: "The majority opinion further weakens our Fourth Amendment protections — whatever is left of them." His lengthy dissent shows that the 75 year old jurist is still up for a good constitutional tussle, as he explains in great detail why each of the majority’s conclusions is unsupported by the facts.

Circuit Split: When Does Laches Bar an Otherwise Timely Federal Claim?

Chirco v. Crosswinds Communities, Inc., 05-1715 (6th Cir., Jan. 10, 2006)

This Sixth Circuit decision addresses an interesting question on which the circuits are split: can the equitable defense of laches bar an action that is filed within the applicable statute of limitations? The plaintiffs in this case are real estate developers who own the copyright to architectural plans for a particular style of condos. The defendants allegedly infringed the copyright by using those plans to build their own complex. The plaintiffs sued three months after learning of the infringement, seeking injunctive relief - i.e. destruction of the infringing buildings - and monetary damages.

During the course of this first law suit, the plaintiffs learned that the defendants intended to use the design to build a second complex. But the plaintiffs took no action for almost two and a half years, at which point they filed a second law suit, also seeking injunctive relief and monetary damages. By this time, the second development was largely completed, and many units were already occupied.

Even though this law suit was timely under the Copyright Act’s three year statute of limitations, the defendants moved to dismiss the suit under the equitable doctrine of laches. The defendants argued that the plaintiffs unjustifiably sat on their rights while the defendants planned, built, marketed, and sold the second development. The district court agreed and granted summary judgment for the defendants.

On appeal, the Sixth Circuit explains that the courts are split on the issue of whether laches can trump a federal statute of limitations. On one side of the ledger is the Fourth Circuit, which has held that laches can never trump a legislatively prescribed statute of limitations, and various Supreme Court cases have hinted at this rule as well. On the other side of the ledger are the Seventh, Ninth and Tenth Circuits, which have indicated that laches may be a defense to an otherwise timely suit in extraordinary circumstances.

The Sixth Circuit sides with the latter courts and holds that this case presents the sort of extraordinary circumstances that require the courts to look beyond the statute of limitations set forth by Congress. Not only did the plaintiffs know of the defendants’ plans for two and a half years before filing suit, they also knew that the defendants were taking action on those plans. To allow plaintiffs to proceed with an action to tear down the development would be most unfair to the defendant, not to mention all the innocent third parties who are now living there. Accordingly, the Court affirms the dismissal of the plaintiffs’ claim for injunctive relief. However, the plaintiffs may proceed with their claims for monetary damages.


Tenth Affirms Big Jury Award for Criminal’s Fourth Amendment Claim

Marshall v. Columbia Lea Regional Hospital, 05-2173 (10th Cir., Jan. 9, 2007)

One of the great debates in Fourth Amendment jurisprudence is what the proper remedy for a violation should be: suppression of evidence or monetary damages. Civil libertarians often argue that suppression is the only effective remedy, since criminal defendants are unlikely to win damages awards large enough to deter police misconduct. This argument may need rethinking in light of this Tenth Circuit decision, which affirms a jury award of $490,000 to a criminal suspect who was forced to undergo a non-consensual, warrantless blood draw. The plaintiff also managed to have the key evidence in his criminal case suppressed, resulting in dismissal of all charges. In this appeal, the Tenth rejects the officers' claims that they were entitled to qualified immunity and affirms the whopping verdict against them.


Jury Needs Expert To Help Decide Whether 60% is More than 7.5%

Luh v. J.M. Huber Corp., 05-1240 (4th Cir., Dec. 21, 2006)

I’ve written before about the Eighth Circuit’s tendency to grant summary judgment even when there are material disputed facts that ought to be decided by a jury. The Eighth isn’t alone in distrusting juries, as this unpublished decision from the Fourth Circuit shows. It’s just that the Fourth is a little more creative in how it ignores disputed material facts.

Ellice Luh is an Asian-American who claimed that her employer discriminated against her when it terminated her during a reduction in force. Among other things, the plaintiff’s evidence showed that there were 45 employees in the division impacted by the RIF: a pool which included 5 Asians and 39 Caucasians. Of these employees, the company selected 6 for termination: 3 Asian and 3 Caucasians. Thus, 60% of the Asians were laid off, and only 7.5% of the Caucasians.

Sounds like a pretty compelling prima facie claim of discrimination, right? Wrong. Apparently, in the Fourth Circuit, a plaintiff needs an expert witness to explain the significance of statistics like these. And, for whatever reason, the plaintiff in this case decided not to shell out thousands of dollars so that a hired gun could explain to a jury that 60% is a lot more than 7.5%. Accordingly, a divided panel concludes that the district court properly overlooked this evidence when granting summary judgment for the employer.

Sixth Circuit Rejects Noise Ordinance Challenge from Abortion Protester

Gaughan v. City of Cleveland, 06-3010 (6th Cir., Jan. 5, 2007)

In an unpublished decision, the Sixth Circuit upholds Cleveland's noise ordinances against a challenge from an abortion protester who was twice cited for his noisy and annoying antics. Plaintiff Hugh Gaughan obtained a recording of a 911 call that followed a botched abortion and played it loudly during his protests in front of a clinic. Clinic workers and nearby residents complained, and Gaughan was twice charged with violating the noise ordinances. Although both charges were subsequently dismissed, Gaughan decided to stop playing the recording. But he sued, arguing that the ordinances are unconstitutionally vague and overbroad, and a violation of the First Amendment. The Sixth Circuit rejects his claims because the ordinance has a legitimate purpose, is content-neutral, and is not overbroad or vague as applied to a noisy protester like Gaughan.

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