Substantively, the post is remarkably thorough and fun to read. (Herrman’s obsession isn’t the only humorous point.) It concludes with interesting detail on the most recent Supreme Court decision and a discussion of practical consequences.

(For Ninth Circuit practitioners, it may be interesting to note that the trigger for Herrmann’s and Beck’s post was last month’s Supreme Court decision in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. __ (2009). Carlsbad came from the Federal Circuit, which had split from several others, including the Ninth, to hold that 28 USC § 1447(d) precludes appellate review of a remand order based on the district court’s discretionary decision under 28 USC § 1367(c) not to assert supplemental jurisdiction over state claims. The Supreme Court’s reversal vindicates the Ninth Circuit’s wisdom (not to mention adherence to stare decisis) when it declined the invitation to reconsider its position in last year’s California Dept. of Water v. Powerex ___ F.3d ___ (9th Cir. 2008). [I'll update that cite for you later when I have access to the reporters.] By the time of the California Dept. of Water case, the rule was well-established in the Ninth Circuit that review was available by petition for writ of mandate. However, the Ninth was forced by intervening Supreme Court authority to find that review is available by appeal. My coverage of Powerex is here.)

Of particular interest is the section on fees for the appeal. Here’s a two-question quiz.

Do you know the proper forum for making your application for fees on appeal? If you said the court of appeals, you’re wrong! Fee applications are brought in the district court after remand.

You probably already know that the standard of review on a fee award is abuse of discretion. Is it any different when reviewing an award for fees on appeal? Well, yes and no. The award is still reviewed for abuse of discretion but the court of appeals will “look more closely” at fee awards involving appeals. Call it an enhanced review for abuse of discretion, if you will.

The district court trimmed the appellate fees by a third! But it did so without offering a good explanation . . . a problem that pervaded its fee determination. It’s interesting to see how Judge Kozinski analyzes the time and fees on appeal versus the time and fees for a summary judgment motion in the case:

The district court noted that plaintiff’s counsel spent twice as long on the appeal than on the summary judgment, but this does not mean the additional time spent on appeal was unjustified; after all, plaintiff lost claims at summary judgment that he won on appeal. More fundamentally, preparing summary judgment motions and appeals are not commensurate tasks, though they have some elements in common. What matters is whether spending more time winning on appeal than losing on summary judgment was an imprudent use of hours. The district court points to nothing to support the conclusion that it was.

Then there is the discussion of the “cost effectiveness of various law firm models” for staffing cases, and which personnel get assigned which tasks at which rates. As I read through it, I thought, “All this concern over hourly rates and who did what! What would the court do if the firm charged a flat fee and didn’t keep track of anyone’s hours?”

I haven’t seen a fee decision based on a flat fee without time records. But the courts still appear to be in love with the “lodestar” system: reasonable hourly rate times reasonable time expended. Which is why I tend to keep time records even when I charge a flat fee.

Now I’m really curious. If anyone knows of a case analyzing the propriety of a fee award based on a flat fee, please send me the cite.

UPDATE (8/7/08): California Attorney’s Fees examines some of the standards employed by the Moreno court to fees incurred prior to appeal, notes the significance of the case, and responds to my query about flat fees.

That was the question facing the court in California Dept. of Water v. Powerex, case no. 06-15285 (9th Cir. July 22, 2008), and the answer required it to answer two jurisdictional questions. First, does 28 USC §1447(d) preclude the court from exercising jurisdiction to review the remand order in any fashion? If not, then what is the method by which the order may be reviewed: appeal or writ of mandamus?

Powerex removed to federal court, claiming that the case arose under federal law. The district court denied DWR’s motion to remand and dismissed, finding that the case was within the sole jurisdiction of the Federal Enerergy Regulatory Commission. DWR amended its complaint to request only declaratory relief in order to take the case outside FERC’s jurisdiction and renewed its motion to remand. The district court held that the amended complaint raised only state law contract issues, declined to exercise supplemental jurisdiction, and remanded the case to state court. Powerex appealed, asserting that the complaint still had claims that arise under federal law.

Section 1447(d) appears to deny review of any remand order unless removed under 28 USC §1443 [applicable to certain civil rights cases]. The court notes, however, that section 1447 has been held to prohibit review only of remand orders based on grounds specified in section 1447(c); remands based on other grounds may be reviewed.

That obstacle cleared, the court turned to the question of whether review is by writ or appeal. Here, the court departs from its prior line of rulings, which held that review was by way of writ, because the intervening SCOTUS case of Quackenbush v. Allstate Insurance Co. (1996) 517 U.S. 706, undercut the rationale of the Ninth Circuit’s prior cases. Remand orders resulting from a refusal to exercise supplemental jurisdiction are reviewable by appeal.

Besides a pretty good discussion about the scope of section 1447(d), DWR v. Powerex is worth reading for its explanation of intra-circuit stare decisis; that is, when can a panel depart from circuit precedent that has not been overruled by an en banc decision in the circuit?

In Hearns v. San Bernardino Police Department, case no 05-56214 (9th Cir. July 1, 2008), neither the parties nor the trial court got it right. Believing his deadline to appeal an order dismissing his compaint had already passed, Plaintiff filed a Rule 60(b)(6) motion for relief from the order.  The district court denied the motion, but granted a 10-day extension of time to appeal.  After plaintiff appealed, defendants cross-appealed the order granting the extension.

Clearly, all of the parties and the district court thought that the extension was necessary.

It wasn’t! Plaintiff’s appeal was timely even without the extension, and the Ninth therefore dismisses the cross-appeal as moot.

Determining the deadline to appeal is the very first thing I do when talking to a client – even before I determine whether the order is appealable — because the consequences of missing it are so severe.  This is especially important in California state court, where the deadline is jurisdictional.  This is why readers who click on the “Need a Lawyer on Appeal?” link at the top right of this blog are directed to a page with big, bold, capital, red letters near the top telling them to “act fast!”

UPDATE (7/1/08): As if to prove my point, the Third District Court of Appeal dismissed an appeal yesterday because the notice of appeal was untimely.  See California Appellate Law for details.

The ADA fee provision makes fees discretionary, but that has led to a practice of awarding fees to defendants only where the plaintiff’s case is frivolous.  The CDPA, on the other hand, makes fees recoverable by the “prevailing party.”  Since liability is coextensive – a violation of the ADA is a violation of the CDPA  -  the   federal provision wins out.

From an appellate angle, the interesting thing about the case is that the court addressed the preemption issue even though it was not raised in the district court.  Because it is an issue of law, the Ninth Circuit had discretion to consider the issue for the first time on appeal.

More interesting yet, this wasn’t the first time a district court missed the issue.  The defendants cited two district court opinions that awarded fees to prevailing defendants sued under both the ADA and the CDPA, but the Ninth cites a major flaw in both of them: “Neither of these cases, however, considered the issue of preemption.”  The Ninth finds a third district court decision consistent with its own, but even that decision failed to address preemption.

I suppose it’s easy to say that at least one of the lawyers or judges in these three cases should have seen and dealt with the preemption issue.  But in the the throes of litigation, the parties and the court sometimes miss an issue that later seems obvious in hindsight.  That can be dangerous, as the appellate court won’t always be able or inclined to address the missed issue.

In In re AFI Holding, Inc., case no. 06-56621 (9th Cir. June 17, 2008), the Ninth faces for the first time the issue of whether an order removing a trustee in an ongoing bankruptcy case is appealable, and, joining several other circuits, concludes that it is because it conclusively resolves a “discrete issue”:

Although the bankruptcy proceedings may continue, and here, in fact they have, the removal order resolves and seriously affects the substantive rights of the parties to a disinterested trustee and finally determines the discrete issue to which it is addressed—whether the bankruptcy court’s finding of a lack of disinterestedness was cause for the trustee’s removal under [11 U.S.C.]§ 324. 

See my earlier post for reference to a case that gives excellent guidance for evaluating the language of an order and the procedural posture of the bankruptcy case as aids in determining appealability.

Cope pled guilty to a single count of possession of child pornography and was sentenced to 120 months imprisonment and lifetime supervised release. His plea agreement stated that he waived appeal of his sentence so long as it met three criteria. On appeal, he challenged the length of his supervised release

The court walks you right through the steps, applying these rules:

• The waiver of a statutory right to appeal is reviewed de novo.
• A knowing and voluntary waiver of statutory rights to appeal a sentence is valid.
• The scope of a waiver in a plea agreement is subject to the same rules of interpretation as used for any other contract (at least, “for the most part”).
• Any ambiguity will be construed against the drafter (usually, the government).

It’s the last of these that allows Cope to reach the merits of his challenge to the length of his supervised release.  Because part of the language defining the scope of Cope’s waiver – which waived appeal of any sentence “within or below the range corresponding to the determined total offense level and criminal history category” – defines a non-appealable sentence in terms of criteria that apply only to the term of imprisonment, and not to the term of the supervised release, the court finds the provision ambiguous and construes it against the government:

As drafted, however, this provision cannot sensibly be applied to a term of supervised release. Under the Sentencing Guidelines, the offense level and criminal history category do not control the term of supervised release, as they do the term of imprisonment. Rather, the type of offense determines the length of the Guidelines range for the term of supervised release. See U.S.S.G. § 5D1.2(a) (Nov. 2002) (specifying supervised release range for Class C felonies); 18 U.S.C. § 3559(a)(3) (Class C felony defined as a crime with a maximum term of imprisonment between 10 and 25 years); 18 U.S.C. § 2252A(b)(2) (2003) (maximum term for Cope’s crime is 20 years). This ambiguity in the waiver provision makes it impossible for us to determine whether the prerequisites for waiver have been met with regard to Cope’s term of supervised release. Because we “steadfastly” apply the rule that “any lack of clarity” in a plea agreement should be construed against the government as drafter, [citation], we hold that this ambiguity in the waiver provision permits Cope to appeal the length of his term of supervised release.

It does Cope little good in the end, however.  While the court entertains his appeal, it affirms the lifetime supervised release.

The Ninth first lays out the statutory scheme applicable to federal habeas petitions by state prisoners:

“Generally, a new petition is ‘second or successive’ if it raises claims that were or could have been adjudicated on their merits in an earlier petition.” Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) implemented a gatekeeper function, requiring that successive § 2254 petitions be dismissed unless they meet one of the exceptions outlined in 28 U.S.C. § 2244(b)(2). Under that provision, a successive application is permissible only if it rests on a new rule of constitutional law, facts that were previously unavailable, or facts that would be sufficient to show constitutional error in the petitioner’s conviction. 28 U.S.C. § 2244(b)(2). Even if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek authorization from the court of appeals before filing his new petition with the district court. 28 U.S.C. § 2244(b)(3).

Woods never obtained authorization for the second petition, but argued that the Ninth should adopt the rule in the Second Circuit, which construes subsequent petitions filed while one or more are still pending as motions for leave to amend the original petition. The Second adopted the rule in part because of the “tension between the liberal amendment policy embodied in Fed. R. Civ. P. 15 . . . and the AEDPA’s restrictions on bringing successive collateral attacks to criminal conviction.” The Second reconciled that tension in favor of treating the later petition as a motion to amend — even where the earlier petitions were on appeal when the latest was filed — because it saw the risk of abuse as minimal, since amendment is subject to the district court’s discretion, putting it in a position to thwart abusive tactics.

The Ninth finds this rationale particularly persuasive as to pro se petitioners:

The Second Circuit’s logic applies with special force in the context of pro se litigants. “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ ” [Citations.]. If Woods had the benefit of counsel at the time he filed the instant petition, that counsel certainly would have filed the 2004 claims as an amendment to the 2003 petition. Accordingly, we follow the persuasive reasoning of the Second Circuit[.]

(Emphasis added.)

This explanation leaves open the possibility that the Ninth might not be so generous in cases of represented petitioners, though I think it should be (and I am betting that the Second Circuit petitioners were represented, which would also support similar treatment for represented petitioners). The tension between liberality of amendment and the restrictions in the AEDPA on successive petitiones exists regardless of whether the petitioner is represented or not. Still, I hope the court is correct that attorneys will “certainly” file additional claims as amendments, rather than risk exploitation of the apparent loophole left by the Ninth’s logic in Woods.

I covered the relevant holding regarding appellate jurisdiction in my original coverage:

The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines and its failure to consider all section 3553 factors led it to impose higher sentences than it otherwise should have, and thus the sentences, even though they were within the ranges stipulated in the plea agreements, were “in violation of law,” which would make them appealable under Title 18 United States Code section 3742(a)(1).

The Ninth disagrees, holding that even if the trial court miscalculated the guidelines or erred in applying section 3553, section 3742 does not confer appellate jurisdiction over an appeal from a sentence that is within the range stipulated in a Rule 11 plea agreement. The court points out that the agreements permitted the trial court “full discretion to impose a sentence” within the stipulated range, and thus the defendants received the benefit of their bargains regardless of where in that range they were sentenced.

The Ninth has previously held that a sentence within the statutory guidelines may be reviewed if it is challenged as “unreasonable” under application of section 3553 factors. However, the court refuses to apply the same rule to sentences within the stipulated guidelines of a plea agreement, effectively holding that section 3553 does not apply to stipulated sentencing ranges, at least where the plea agreement does not explicitly require it.

The amended opinion holds that the court has jurisdiction to hear the appeal because a Rule 11 plea in itself deprive the court of appeals of jurisdiction and the defendants did not explicitly waive their appeal rights in their plea agreements.

Grissom pled guilty to one drug distribution count involving 49 grams of cocaine base in exchange for dismissal of the remaining two counts, which involved a total of 56 grams of cocaine base. The government contended that the trial court erred by not including the drug quantities from the dismissed counts in the calculation of the base offense level.

The district judge announced his reasoning for imposing an 87-month sentence –  including her decision not to include the drug quantities from the dismissed counts — and asked if there was any legal cause why sentence should not be imposed. Then:

The government responded, “No, your honor. I would simply note the government’s objection on the record.” At that point, the court stated, “I know. You know what you can do with that. Take it to appellate court, if that’s what you want to do. I don’t think it’s worth it myself, but that’s something you have to decide.”

Ordinarily, to preserve a sentencing objection for appeal, it “must have a specific substantive basis” in order to apprise the district court of the specific nature of the objection for its due consideration. Here’s the dilemma faced by the Ninth:

But what happens when the district court indicates that it has understood, and rejected, the substance of a party’s objection? This case presents the issue of forfeiture in novel circumstances. Neither party disputes that the government objected to the sentence imposed on Grissom. Before the government articulated a basis for its objection, however, the district court stated “I know[,]” and the government pursued the matter no further. The government now contends that its own general objection, coupled with the district court’s terse statement, reflects that the district court was fully aware of the government’s legal position regarding relevant conduct.

It turns out to be not such a dilemma after all, as the court looks past the facially deficient objection to find that the government had made its position plain throughout the sentencing process:

Despite the seeming facial inadequacy of the objection, we agree with the government that where the district court indicates that it understands the basis for the objection and that further argument is not desired, and the record reflects this understanding, a general objection may suffice to preserve an issue for appeal. As the government argues, the purpose of a specific objection is to allow for meaningful review by the district court and, if necessary, the appellate panel. Santiago, 466 F.3d at 803. Thus, the court’s reassurance that it “know[s]” the substance of a party’s complaint helps to allay concerns about the ability of the district court to address it. Cf. United States v. Pineiro, 470 F.3d 200, 204-05 (5th Cir. 2006) (concluding that the government preserved its objection to recalculating the defendant’s sentence by making statements throughout the sentencing hearing arguing that the prior calculations were still appropriate); United States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006) (excusing the government’s failure to object at the end of the sentencing colloquy where the government argued vigorously throughout the hearing, such that it “made unmistakably clear its position”).

Reviewing the record, we are satisfied that the district court was indeed fully aware of the government’s position regarding the district court’s calculation of relevant conduct. First, the government consistently advanced its view that quantities of crack cocaine from the dismissed counts of the indictment should count for sentencing purposes. The plea agreement, PSR, and both parties’ sentencing memoranda all calculated Grissom’s offense level based on the total amount, 105 grams, rather than the 49 grams charged in the count of conviction. Neither party challenged this calculation at the sentencing hearing. Second, the district court’s comments indicate an awareness that its decision not to consider the amount from the dismissed counts produced the government’s objection. After commenting that determining the calculation based on 105 grams would not “amount to dismissing the other two [counts] because [the government would] still . . . count them out anyway[,]” the district court changed the base offense level to “reflect[ ] the 49 grams.” In short, the district court knew it was deviating from a calculation based on the total amount. Responding to the government’s objection, the district court challenged the government to “take it to appellate court, if that’s what you want to do.” The district court’s challenge to the government to appeal strongly suggests the district court recognized and disagreed with the claimed error. Therefore, we hold that the government’s objection was sufficient under the circumstances to preserve its objection to the district court’s calculation of Grissom’s sentence.

Bottom line: what matters is not so much the actual presentation of the objection, but whether the record discloses that the district court was well-enough advised of the nature of the objection that it could give it due consideration.

In yesterday’s Daily Journal, Staff Reporter John Roemer has a front-page article about an apparent surge in en banc rehearings granted by the Ninth Circuit since Alex Kozinski became Chief Judge. (Full disclosure: yours truly is quoted in the article.)

Are the two phenomena related? Not according to Judge Kozinski, whom the article quotes:

“I’ve always been more en banc friendly than many of my colleagues,” he wrote in the e-mail. “But I frankly doubt that my being chief judge will have any effect on the process. I’ve had my share of successes as well as failures when calling for en banc review.

“There are not – and should not be – extra points for being chief judge. It is not a bully pulpit, nor is it a platform for proliferation of my substantive views .”

Roemer provides interesting background on Judge Kozinski’s history of fervent advocacy for en banc review, including a colorful description of his frequent dissents from orders denying rehearing en banc as “prose hand grenades lobbed to blast the court away from the status quo.” I think Judge Kozinski would approve.

It seems possible, at least, that the judges may be more willing to take on en banc rehearings since last July, when it reverted to 11-member en banc panels after a brief experiment with 15-member panels. That would make a greater number of en bancs more manageable. But I don’t have any information on whether en bancs went down during the roughly 18 months they required 15-member panels, so I have no idea if the size of the panel is affecting the judges’ thinking.

For anyone considering petitioning for rehearing en banc, the article contains some sobering numbers: 1,097 petitions for rehearing en banc were filed in 2007, and through November, only 18 had been granted. That’s less than 2%.

By the way, Judge Kozinski is the subject of the cover article in April’s California Lawyer.

What to make of the district court’s intent when its order dismissing a complaint does not specify whether or not leave to amend is granted? In Mendiondo v. Centinela Hospital, case no. 06-55981 (9th Cir. Apr. 1, 2008), the Ninth Circuit notes that failure to address amendment means that the court denied leave to amend. Accordingly, it infers that the district court intended the order to finally dispose of the action, and that it has jurisdiction over an appeal from the order under section 1291.

While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Odds are slim that I can read the article any time soon, so if anyone reads it, I’d sure be interested in your comments, which I encourage you to leave on this post.

But the answer is “yes.”

A reminder comes in the form of Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008).  After United successfully moved for summary judgment, Doe moved for a new trial on the ground of “newly discovered evidence” that purportedly raised a triable issue of fact precluding summary judgment.

Not that it ultimately did her any good.  The court of appeal holds that the trial court abused its discretion in granting the new trial motion and affirms on plaintiff’s protective cross-appeal from the grant of summary judgment.

There are lots of post-trial and appellate tidbits in this case.  Nothing new, just well-established principles for which the case provides a reminder.  I’ll probably be putting up separate posts on them (or consolidate them into a new post) in the next few days.

The Ninth originally remanded with instructions to strike a conviction and sentence on count four and for the court to determine if it would have imposed the same sentence if it had known that the sentencing guidelines were advisory rather than mandatory.  The district court struck the conviction and sentence on count four, declared it would have imposed the same sentence had it considered the guidelines advisory only, but then substantially increased the sentence on count three.

Where this court expressly limits the scope of remand, the district court is without authority to reexamine other sentencing issues on remand. United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994). In this case, the district court exceeded its authority when it increased Davis’s sentence on count three. We therefore vacate Davis’s sentence and instruct the district court to reimpose his original sentence, except that no sentence shall be imposed on count four. No adjustment shall be made with respect to any other count.

As if worried that didn’t get the point across, the opinion finishes by noting the case is remanded “for the sole purpose of resentencing as provided in this opinion. ”

Point made.  By the way, Davis is a wonderfully succinct opinion that is barely longer than this post.

The order at issue is an order unsealing documents related to a plea agreement.  The order rather obviously meets both criteria for review under the collateral order doctrine because it “conclusively decides an issue” and “it is effectively unreviewable on appeal from a final judgment,” both for the same reason: once secret documents are made public, there’s no going back.

In Planned Parenthood v. American Coalition, case no. 06-35733 (Feb. 11, 2008), we see an example in the context of a federal requirement; specifically, where the Federal Rules of Appellate Procedure impose an obligation ot the Court of Appeals and the court fails to honor it.

The rule at issue is FRAP 37(b), which provides that “[i]f the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.” In a previous appeal in the case, the Ninth reversed a punitive damages award as violative of due process and remanded for retrial unless the creditors accepted the judgment with a reduced punitive damages component, but the court failed to include in its mandate the date on which interest started to accrue on the judgment. The trial court entered a new judgment allowing for accrual of post-judgment interest as of the date of the original judgment.

The Ninth holds that failure to specify a judgment accrual date where required by FRAP 37(b) precludes a district court from entering the newly mandated judgment with interest accruing from the date of the original judgment. Interest accrues from the date where the amount of the judgment is “meaningfully ascertained.” and this ordinarily means the date of the mandate from the Court of Appeals if the mandate directs entry of a money judgment different from that in the original judgment.

Here, however, the judgment creditors get interest from the date of the original judgment in any event. The court recognizes that its omission was inadvertent and that despite the reduction in punitive damages on remand, the creditors’ right to interest on the reduced amount had been “meaningfully ascertained” in the original trial. Accordingly, it exercises its right to recall its prior mandate and amends it to include interest from the date of the original judgment.

That said, the court makes clear that it is affording this courtesy only because its prior jurisprudence was unclear, and that litigants should treat this case as a cautionary tale:

Henceforth, we expect that litigants in this circuit will clearly understand that if we modify or reverse a judgment with a direction that a money judgment be entered in the district court, our mandate must contain instructions about the allowance of post-judgment interest. Fed. R. App. 37(b). If our mandate omits such instructions, a party that believes it is entitled to interest from a date other than the date of entry of judgment on remand must expeditiously seek reform of the mandate.

Professor Martin calls this “an entirely just and equitable opinion.” I think that’s correct. But keep the court’s caution in mind.

I think a federal court litigant in this situation can have much more peace of mind than a party in a California case involving a new trial or summary judgment situation mentioned above. A party can expect a ruling one way of the other on a motion to recall and amend the mandate. Pleas to California trial courts to rule definitively on evidentiary objections often fall on deaf ears. And a party seeking a new trial is prohibited from doing too much to facilitate the trial court’s compliance with new trial procedures. Nonetheless, this greater peace of mind only applies if the party remembers to “expeditiously seek reform of the mandate.”

Anyway, in my first post on the topic, I reminded you that one exception to the general rule against interlocutory appeals is that an order denying summary judgment sought on qualified immunity grounds may be appealed.

In Bingue, the plaintiff complained that the court could not review the denial of summary judgment on qualified immunity grounds because the existence of qualified immunity depended on the resolution of disputed material facts and the court’s appellate jurisdiction extends only to questions of law in such appeals.  But there are two  ways around this.  First, the court can review as a matter of law by assuming the truth of the facts set forth by the plaintiff.  Second, the court can determine that the disputed facts are not actually material.

Here, the court uses the former analysis to evaluate whether qualified immunity exists under the facts as asserted by the plaintiff.  And finds that it does.

Not so fast, as we are reminded by today’s decision in KRL v. Aquaro, case no. 06-16282 (9th Cir. Jan. 16, 2008). The case is an appeal from the denial of summary judgment that was sought on qualified immunity grounds, and the court notes that interlocutory appeal is allowed in such cases. The rule dates back to Mitchell v. Forsyth, 472 U.S. 511 (1985), which applied as its starting point the general rule that

a decision of a district court is appealable if it falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” [Citation.]

In analysis a little too detailed for me to go into here, the Mitchell court concluded that the denial of a claim of qualified immunity fit this test. Read Mitchell, and you’ll learn of a few others.

As luck would have it, the case also provides an appellate lesson on mootness.

The national park and other appellees had approved a plan to replenish the native population of foxes on the island by killing off the non-native feral pig population through a concentrated hunt. Appellants sued to prevent the kill, claiming the pig population should be physically removed from the island or eradicated by more humanitarian means, such as sterilization. Appellants lost on summary judgment in the trial court. Unfortunately (for both the appellants and the pigs), by the time the appeal could be heard, the kill was complete. Appellees moved to dismiss on mootness grounds, and the court grants the motion.

Though a Court of Appeals may exercise jurisdiction over a case rendered moot with respect to injunctive relief where declaratory relief is sought, even then it may do so

only when the challenged government activity is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties. [Citation.]

Reviewing past exercises of jurisdiction in such circumstances, the court finds that

[t]he common thread in these cases is that “the violation complained of may have caused continuing harm and . . . the court can still act to remedy such harm by limiting its future adverse effects. [Citation.]

Since the pigs had already been killed, “Appellants have suffered whatever harm could conceivably result from the challenged agency action.”

Appellant’s arguments that there may still be a live pig left on the island and that the court could still reverse or mitigate the damage fail. The former relies on speculation. The latter ignores that a continuing ability to reduce or reverse damage refers to secondary effects. Here, the only alleged harm was the purportedly inhumane eradication of the pig population.

Likewise lacking is appellants’ argument that dismissing the appeal will encourage government actors to fulfill their illegal plans quickly, before the courts can stop them. Although sympathizing with this argument somewhat in the abstract, the court finds it has no application to this case. The appellants waited two years to file suit, had an opportunity to file for temporary restraining order and preliminary injunction (the denial of which had been affirmed in a previous appeal), and the appellees had moved quickly on the eradication because the pigs’ presence was an environmental hazard, not because they were attempting to evade review.

Finally, even though the court may assert jurisdiction in a case “capable of repetition, yet evading review,” that doctrine has no application here because the appellants challenged a single, non-repetitive plan for the pig eradication.

Thus, even though the burden on appellees to establish mootness is “a heavy one,” the appellees here carry it off by proffering proof that the pigs are all gone.

Moreland apparently swindled people out of $73 million, so I’m going to assume he had a little bit of money, legitimately earned, set aside for his defense.  Yet he fought tooth and nail to proceed pro se, which is where all his problems started.

The decision is covered very well, and in some detail, in this post at Decision of the Day, which begins:

In my line of work, I see all kinds of appellate arguments: brilliantly creative, colossally stupid, and everything in between. I enjoy the wacky ones the most, because they tend to inspire spirited opinions, which in turn gives me something interesting to blog about. But occasionally, an appellant makes a wacky argument that really gets under my skin. The Ninth Circuit dealt with three such examples in a decision issued yesterday.

Worthy reading.  And it’s worth noting that Moreland was represented on appeal.  I have to wonder if his lawyers winced as they filed the brief.

Which was the situation in SEC v. Shaw, case no. 06-15204 (9th Cir. Dec. 11, 2007). The SEC had summons personally served on Shaw in England. Shaw defaulted, then waited more than three years to move to set aside the default judgment on the ground of lack of personal jurisdiction.

The Ninth holds that a defendant with actual notice of the proceedings, as Shaw had, bears the burden of proving he was not served with summons. Shaw can’t make that case here.

Nor does he prevail on his argument that even if he was served, service was invalid for failing to comply with the Hague Convention. Never raised that in the district court, you see.

It is gamesmanship like this that makes for eventual unpleasantness, as when a colleague of mine had a defendant personally served with summons at the defendant’s daughter’s wedding (or reception, I forget which). The defendant had deftly avoided service for some time, so my colleague figured the defendant “had it coming” to be served in the one place my colleague couuld find him.

In the original Ninth Circuit Perfect 10 v. Amazon ruling, the court put the burden on the plaintiff to disprove fair use as part of its PI obligations. Now, in an amended opinion, the Ninth Circuit has put the burden on the defendant to establish fair use to defeat the PI.

This doesn’t change the result.  The injunction is still dissolved.

Professor Goldman’s post is well worth reading for anyone at all interested in cyber law.  He explains how this is a continuation of the Ninth Circuit’s struggles with cyber law, that the significance of the issue extends beyond cyberspace, how the press gets the case wrong (shock!),  and conveniently excerpts the relevant language from the original and amended opinions.

If you want more, go get the original opinion and the amended opinion.

In the meantime, AbsTracked has a post with some useful links regarding the changes, including an advisory committee report and a change comparison chart.

Thanks to Legal Writing Prof Blog for the link.

Because our decisions pursuant to a pre-filing review order are rarely published, we have not yet clarified the standard for determining whether an appeal or petition has sufficient merit to proceed. We take the opportunity to do so now.

The court examines standards in cases of summary affirmance and trial court summary dismissals, then settles on a standard. But the standard is not stated in terms of what makes for sufficient merit. Instead, it is stated in terms of what kind of case lacks sufficient merit, and that test is quite restrictive:

[W]e hold that when we have imposed prefiling requirements, we can preclude an appellant from proceeding with a petition or appeal only when it is clear from the face of the appellant’s pleadings that: (i) the appeal is patently insubstantial or clearly controlled by well settled precedent; or (ii) the facts presented are fanciful or in conflict with facts of which the court may take judicial notice.

I guess this is something lawyers don’t really need to know, since vexatious litigant orders restrain litigation only be self-represented litigants. But I know that non-lawyers stumble across this blog as well, and it’s interesting to see how the Ninth limits access by vexatious litigants.

In this case, Thomas filed 17 appeals or petitions in the Ninth Circuit before the court entered the pre-filing order in 2001, 28 appeals and petitions after the order, and more than 69 separate civil actions in the Eastern District of California alone.

He gets nowhere with this one. Applying the standard it has just announced, the Ninth finds that the appeal lacks sufficient merit to proceed. The appeal is from a magistrate judge’s order recommending dismissal of his lawsuit. The lawsuit? Thomas was suing four district judges “to challenge the judges’ rulings in prior actions filed by [him].”

Why sue the judges instead of appealing? After all, we know the guy has heard of an appeal, having filed 41 appeals or petitions already.

The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all.

The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to the record.

You’re thinking, “Well, that’s what you get for proceeding in propria persona,” right? Think again. Appellant had counsel. Yet the analysis and citation to evidence (it was an appeal from summary judgment) were also deficient:

Bare assertions and lists of facts unaccompanied by analysis and completely devoid of caselaw fall far short of the requirement that counsel present “appellant’s contentions and the reasons for them.”

Despite the court’s assertion that it was publishing the case “as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated,” it nonetheless conducts an independent review of the record in recognition of “the harshness of this rule, especially as its application could, if unwisely applied, leave a meritorious appellant without a legal remedy when the fault lies solely with his or her counsel.”

With this concern in mind, and despite the abject deficiency of the brief, we have reviewed Sekiya’s case on the merits based on a review of the district court record, and we are satisfied that the district court did not err.  Sekiya, however, is not “entitled to have us expatiate on our reasons for finding [her] case unmeritorious.” [Citation.]

Maybe the part I liked best was this quote:

In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief. [Citation.]

I think if I were a legal writing professor, I might talk about this case with my students and keep the phrase “slubby mass of words” handy.

UPDATE (12/5/07):  Lowering the Bar coins the term “Slubby Mass Rule” and delves into the etymology of “slubby.”

Anyway, Bashman would appreciate it if you can e-mail him with any information that may help explain the anonymity of the habeas petitioner in yesterday’s opinion.

The Ninth Circuit rejects such a challenge in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007), at least where the plea agreement was not contingent on the sentencing guidelines and the only error asserted was a miscalculation of the guidelines or failure to properly consider the factors in Title 18 United States Code section 3553.

The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines and its failure to consider all section 3553 factors led it to impose higher sentences than it otherwise should have, and thus the sentences, even though they were within the ranges stipulated in the plea agreements, were “in violation of law,” which would make them appealable under Title 18 United States Code section 3742(a)(1).

The Ninth disagrees, holding that even if the trial court miscalculated the guidelines or erred in applying section 3553, section 3742 does not confer appellate jurisdiction over an appeal from a sentence that is within the range stipulated in a Rule 11 plea agreement. The court points out that the agreements permitted the trial court “full discretion to impose a sentence” within the stipulated range, and thus the defendants received the benefit of their bargains regardless of where in that range they were sentenced.

The Ninth has previously held that a sentence within the statutory guidelines may be reviewed if it is challenged as “unreasonable” under application of section 3553 factors. However, the court refuses to apply the same rule to sentences within the stipulated guidelines of a plea agreement, effectively holding that section 3553 does not apply to stipulated sentencing ranges, at least where the plea agreement does not explicitly require it.

Garcia leaves open the possibility of getting around its holding with a properly crafted plea agreement. If the plea agreement makes a properly calculated guideline or application of section 3553 an explicit condition of the plea, a defendant may be able to appeal a sentence even if it is within the range stipulated in the agreement. The Ninth Circuit Blog post referenced below offers this advice, along with this caution: “Of course, good luck getting another 11(c)(1)(C) deal that doesn’t include explicit appellate waivers.”

The “Case o’ the Week” post at Ninth Circuit Blog starts by discussing Garcia but transitions to a discussion of the “mess” in the Ninth Circuit regarding jurisdiction to hear sentencing appeals and links to a number of helpful posts on other recent decisions on this topic. Follow the links, and by the time you’re done, you will be eagerly awaiting the Ninth’s en banc opinion in U.S. v. Carty.

Nasciemento purported to appeal from a non-appealable order of the Nevada district court that dismissed some, but not all, defendants and transfered the case to the Montana district court (the “transfer order”). After his appeal was dismissed, but nine days before the mandate issued, the Montana district court entered a discovery scheduling order.

When the Montana court refused to extend time for discovery, Nasciemento filed an appeal from that order (the “discovery order”), which is likewise unappealable. A week later, the Montana Court dismissed Nasciemento’s complaint as a sanction for his failure to appear at a pretrial conference and his lack of preparation for trial (the “dismisssal order”).

Nasciemento claimed that the district court lacked jurisdiction to enter the discovery schedule or dismiss his complaint as a sanction during the appeals pending respectively at the time of each order.

The Ninth disagrees. It holds that since it never had jurisdiction over either appeal, the Montana court, as the transferee court, had jurisdiction to take further action in the case.

Litigants would be wise to assume this rule will apply even where the question of jurisdiction over the appeal is a close call or where it is a question of first impression, because the court draws no distinction between the timing of the two district court orders. When the discovery order was entered, the appeal from the transfer order had already been dismissed (though mandate had not yet issued), so the lack of appellate jurisdiction had been definitely established. The dismissal order, however, was entered just a week after Nasciemento filed his notice of appeal from the discovery order, and thus presumably before that appeal was dismissed for lack of jurisdiction.

The timing of the determination of non-appealability would not appear to affect the outcome. But where appellate jurisdiction may be an open question, might more cautious district judges defer exercising jurisdiction until the issue of appealability is resolved?

MEGA was ordered to pay costs and fees when the action was remanded. It claimed the only non-diverse defendant, an individual, had been fraudulently joined for the purpose of defeating diversity jurisdiction because the statute of limitations had run as to that defendant.

Applying the rule that fees and costs should ordinarily not be awarded where the removing defendant had an objectively reasonable basis for removing, the Ninth Circuit reverses the award of fees and costs. Interestingly, it finds that MEGA had a reasonable basis for removal purely on its own analysis of whether the claim against the non-diverse defendant was barred under California law and without considering one of the reasons MEGA cited for the reasonableness of removal — that on remand, the California court sustained MEGA’s demurrer.

That makes sense, in a way, since reasonableness should be measured as of the time of removal. On the other hand, it seems like the state court dismissal is pretty solid evidence of the objective reasonableness of MEGA’s fraudulent joinder contention.

The case came up on appeal from a summary judgment granted on the ground that the plaintiff’s administrative complaint was untimely. The timeliness of the administrative complaint turned on whether the Department of Fair Employment and Housing caused plaintiff to miss his filing deadline for filing a verified administrative complaint (thus equitably tolling the limitations period) rather than whether there was a triable issue on the substantive allegations of his complaint against his employer. (Thus, the Court of Appeal deemed the substantive allegations of the complaint “largely irrelevant,” so we needn’t discuss them here.) The court found that equitable tolling applied, the summary judgment on timeliness grounds was error, and remanded to the trial court to consider the remaining issues

The most interesting aspect of the case (at least for this jurisdiction geek) is how the court addressed the plaintiff’s contention that the court commissioner lacked jurisdiction to decide the motion. After evaluating the competing evidence over whether plaintiff had consented to the commissioner and the legal positions of the parties, the court says that it is “immaterial” which side is right on the jurisdictional question.

Wow. The existence of jurisdiction is, in the eyes of this panel and in this particular case, immaterial. I think this is wrong, wrong, wrong.

The court deems the trial court’s jurisdiction immaterial because it figures that if it remands, the case will just come up on appeal again on the exact same papers, so remanding would waste judicial resources:

Even if we were to concur that the judge pro tem lacked jurisdiction to hear the motion, there would not be any purpose in reversing the judgment and remanding the matter, only to exercise de novo review of the same materials on appeal from a ruling of a judge of the trial court (as our remittitur would not authorize reopening the motion), if we believe the outcome would be the same on the substantive timeliness issue. This only wastes scarce judicial resources and causes needless expense to the parties. We therefore proceed to the matter of whether the plaintiff’s failure to file a timely administrative complaint is excusable.

I don’t think I’ve ever seen the potential lack of jurisdiction treated so casually. If jurisdiction is lacking, the grant of summary judgment is void. So the court of appeal is analyzing the merits of a potentially void judgment. That is a big deal, and hardly consistent with the court of appeal’s usually zealous protection of its jurisdiction.

I think the court should have been more diligent in determining whether there was jurisdiction. Had it determined a lack of jurisdiction by the commissioner, it should have reversed and remanded without an examination on the merits. The reasons the court offers for the immateriality of jurisdiction don’t stand up well to scrutiny.

First, the court’s position that it would be reviewing “the same materials” on a subsequent appeal seems misguided. It rests on an anticipated remittitur that “would not authorize reopening the motion.” While it might be appropriate to preclude new declarations in support or opposition to the summary judgment motion, there seems no reason to restrict the scope of review by the new trial judge on legal issues. Suppose the new judge hearing the motion sees a legal point that the commissioner missed and wants to ask for additional briefing on an issue? Would the remittitur also preclude that?

A second problem with the “same materials” rationale is that even if the summary judgment papers are unchanged, a second appeal would afford the parties an opportunity to revise their appellate briefs. One of the briefs might be substantially more persuasive, cite additional authority, or otherwise differ from the briefs on this appeal, potentially leading the court of appeal to a different result.

Even more obviously, it is uncertain whether the Court of Appeal would ever see the case again. Suppose the superior court judge on remand disagreed with the commissioner’s disposition and denied the motion. The defendant would have to file a petition for writ of mandamus (which has a 90% + chance of not being heard on the merits) or await final judgment before appealing on the ground that the motion was improperly denied. The case would have a decent chance of settling with a trial on the horizon, so the court of appeal might not see the case again.

All of these possibilities argue against what the Court of Appeal did here.

Problem: the district court only gave notice of the OSC re dismissal via e-mail. Since plaintiff’s counsel did not consent to electronic notice (Fed. R. Civ. P. 5(b)(2)(D)) and did not regularly check his e-mail (and, given his lack of consent to electronic notice, had no obligation to do so), he missed the hearing. Putting aside the issue of whether a dismissal sanction is an abuse of discretion when it is imposed for missing a single hearing — an issue raised very briefly by the court — the notice was ineffective. Notwithstanding the attorney’s reasonable excuse for missing the hearing, the trial court denied plaintiff’s motion to vacate the dismissal, and did so without a hearing.

This easily meets the standard for “abuse of discretion,” says the Ninth. Indeed, the court takes the unusual step of apologizing to the parties. In the same sentence, it admonishes the district judge to “exercise more care and patience in the future.”

The district judge in question is Manuel Real of the Central District of California. Two prominent bloggers used the Calderon opinion to opine on Judge Real; both California Appellate Report and Decision of the Day do so in language that suggests they don’t plan to appear before Judge Real any time soon. More of Judge Real’s colorful history is memorialized in this Law.com judicial profile.

Anyway, on to the point reflected in the title of this post.

I wonder if Judge Real wasn’t made impatient because of the electronic notice. With electronic this and electronic that, we (as a society) expect everything to happen now.

By the time I was admitted to the bar in 1992, faxes were common. Car phones were widespread (though handheld cell phones were not), though somewhat pricey. My first firm (more than 1200 lawyers strong at the time) was still using Wang word processing in its LA office and e-mail had not yet been implemented firm-wide, if I recall correctly. Portable computers were heavy and hugely expensive. So things have accelerated greatly in the 15 short years since I became a lawyer.

I recall a partner at one of my BigLaw firms reminiscing in the mid-90’s about the “good old days” before fax machines. She thought the practice of law was much more civil before faxes. Fax machines, in her mind, were a leading cause of threatening letters sent by opposing counsel on Friday afternoons demanding detailed responses by Monday morning . . . or sooner. The same partner usually made a point of being totally incommunicado when on vacation.

My favorite anecdote regarding the impatience that technology breeds came from an an associate at Baker & McKenzie (where I spent my 2L summer in 1991), who once saw two attorneys in Los Angeles pacing back and forth impatiently outside the firm’s mailroom, cursing under their breath. When he asked why, they responded that they were faxing a contract and “it’s taking three minutes per page for this contract to get to Tokyo!”

While properly leveraging technology can make your life easier, I have some sympathy for (and sometimes count myself among) those who believe that, in many respects, technology just makes us work harder!

Plaintiffs were political appointees in the Alaska Governor’s Office who, after their discharge, filed claims with the EEOC against the Governor’s Office alleging various forms of harassment and/or discrimination. The Governor’s Office moved for summary judgment on Eleventh Amendment immunity. The Administrative Law Judge felt he lacked jurisdiction to decide the Eleventh Amendment issue and certified the question to the EEOC. The EEOC, holding that “an agency will not rule on the constitutionality of the statute that it is assigned to administer,” remanded back to the ALJ.

The Governor’s Office appealed from the remand order. The Ninth holds that it has jurisdiction to consider the appeal, even though the remand order is not a final judgment, because an “order denying a state’s claim to Eleventh Amendment immunity is an appealable collateral order.”

By the way, plaintiffs lose despite a federal statute purporting to abrogate state immunity from claims by persons holding government positions similar to those held by plaintiffs. The Ninth finds that the legislation does not meet the requirements for validity set by the Supreme Court because there are no findings of discrimination in such positions that required a remedy.

The merits earn three opinions from a three-judge panel, one in dissent.

UPDATE (11/9/07): Professor Martin gives a nice run-down of the merits and predicts the case is headed not only for en banc review but likely to the Supreme Court. Read why at California Appelate Report.

Morgan accepted a plea agreement that included a sentencing term pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). So far, so good.

The stipulated sentence was near the upper limit of the guidelines but the district court opined that an upward departure may be appropriate. This led the district court to express its disdain for sentencing agreements because the inclusion of the sentence left nothing for the court to do:

Reasoning that acceptance of stipulated sentences as a general matter renders a district court’s entry of judgment a mere formality, the [district] court concluded: “I don’t think that’s what Article III federal court should be reduced to. So for that reason, we’re going to reject the Rule 11(c)(1)(C) stipulated term in this agreement as being unreasonable as a matter of law, not necessarily unreasonable as a matter of fact.”

Faced with the options of (1) withdrawing his plea and going to trial or (2) pleading guilty and leaving sentencing to a court that had already expressed its opinion that an upward departure might be appropriate, Morgan sought mandamus to compel the district court to accept the plea agreement, including the sentence.

The Ninth refuses to compel the district court to do so, but holds that the district court erred in rejecting the plea without a particularized analysis. The court’s summary rejection of the plea was a failure to exercise its discretion, so the Ninth remands for the district court to “make an individualized assessment of the propriety of Morgan’s stipulated sentence, in light of the factual circumstances specific to his case.”

Technorati Tags: plea bargains, sentencing

I recognize that this is an extraordinary request, but this year’s pending amendments also are extraordinary, as they will completely re-write each and every provision of the Civil Rules for the first time in their 70-year history. More fundamentally, they adopt a novel concept of rule interpretation – what one of the proponents calls “clarity without change” – that is antithetical to our jurisprudence and likely to produce disarray in the procedural system.

There is a substantial body of opinion, in which I join, that the proposed amendments are likely to produce a material degradation of civil justice in our federal courts by imposing enormous burdens of transitional cost, in exchange for little or no benefit. Perhaps more importantly, there is no indication that the judicial rulemaking committees have fully considered the potential consequences of these sweeping changes.

For some of that “substantial body of opinion,” see links in prior posts here and here.

While the jury was deliberating on the drug smuggling charge, the government filed a complaint charging her with the prior two instances of alien smuggling, and she moved to dismiss the subsequent indictment on grounds of vindictive prosecution, claiming that the U.S. Attorney only prosecuted her for the alien smuggling because she exercised her right to testify in her defense on the drug charges. California Appellate Report has a nice write-up on that part of the case.

But before the Ninth Circuit could reach the merits in U.S. v. Jenkins, case no. 06-50049 (9th Cir. July 17, 2007, amended Sept. 25, 2007), it was faced with the unsettled issue of the appropriate standard of review:

The standard of review of a district court’s decision whether to dismiss an indictment for vindictive prosecution is unsettled in this circuit. [Citation.] We have reviewed vindictive prosecution cases de novo, for abuse of discretion, and for clear error. [Citation]

We conclude that the district court’s decision should be reviewed de novo because the issue presents a mixed question of law and fact. The trial court first determines whether the prosecutor’s course of conduct appears motivated by a desire to punish the defendant for exercising a legal right. The court then decides whether the prosecutor has come forth with sufficient evidence to dispel any appearance of vindictiveness. Because our review of these determinations “requires us to consider legal concepts in the mix of fact and law,” de novo review is appropriate. [Citations.]

Two points.

First, note how specifically the court identifies the issue for purposes of assigning a standard of review. The court doesn’t describe the decision under review merely as the dismissal of an indictment, but as the dismissal of an indictment for vindictive prosecution. Lesson: research and apply the standard for the most specific issue that has been previously articulated. And if the court has only identified the general issue before, perhaps you have an argument for a better standard of review to apply to your specific circumstance.

Second, note how succinctly the court settled this issue, compared to its recent resolution in U.S. v. Larson of a similar 3-way split on the standard of review to apply in confrontation clause challenges based on limitations on cross-examination, which I blogged about here and here. Both cases involved an unsettled question regarding the standard of review in a criminal matter. Perhaps the weight of the issue in Larson, where the defendant had already been convicted, seemed greater to the court than the mere dismissal of an indictment.

Thus in United States v. Talao, 222 F.3d 1133, 1137 (9th Cir. 2000), the Ninth Circuit held that it had jurisdiction to hear the appeal of an Assistant United States Attorney whom the District Court had found violated rule 2-100 of the California Rules of Professional Conduct. The issue in such cases is whether the order constitutes a “sanction.” In Talao, the court holds that a finding that an attorney violated a governing ethical rule is per se a sanction, and thus the attorney may separately appeal it.

Appellants contend their motion [for summary judgment] should have been granted because the arbitrators manifestly disregarded the law when deciding not to apply offensive non-mutual collateral estoppel because judicial review of an arbitration award under the Federal Arbitration Act (“FAA”) is more limited than judicial review of a district court judgment. We hold the arbitrators did not manifestly disregard the law because no “well defined, explicit, and clearly applicable” law existed to be disregarded. [Citation.] Accordingly, we affirm.

(Footnote omitted.) At the very mention of the term “offensive non-mutual collateral estoppel,” I couldn’t help but think of the characters ordering coffee in rapid-fire succession in the movie L.A. Story:

Tom: I’ll have a decaf coffee.
Trudi: I’ll have a decaf espresso.
Morris Frost: I’ll have a double decaf cappuccino.
Ted: Give me decaffeinated coffee ice cream.
Harris: I’ll have a half double decaffeinated half-caf, with a twist of lemon.

Thus, I found it amusing that this tangle of words — “offensive non-mutual collateral estoppel” — would have no “well defined, explicit, and clearly applicable” in the context of this case. But maybe that’s just me.

On the merits, this decision is useful for its exposition on what constitutes an arbitrator’s “manifest disregard for the law” sufficient to justify vacating an arbitration award. For such “manifest disregard” to exist, mere error is insufficient; the arbitrator(s) must have understood and correctly stated the law but ignored it. A proper identification and statement of the law requires, in turn, that it be “well defined, explicit and clearly applicable.” Here, since there was no well-settled law on the issue of whether the arbitrator(s) were bound to apply collateral estopppel on the facts before it, they cannot be said to have ignored it.

The case arose when the mother of a disabled child sued to recover damages for lost earnings and suffering endured during her eventually successful drive to obtain benefits for her son under the IDEA.  The district court granted summary judgment, finding that the mother had no individual rights under the IDEA ad that the IDEA did not contemplate the damages she sought. 

While the appeal was pending, the Supreme Court decided Winkelman ex rel. Winkelman v. Parma City Sch. Dist., (2007) 127 S.Ct. 1994, which held that parents do have individually enforceable substantive rights under the IDEA.  In light of this, the court stated that “[t]he question before us now is whether 42 U.S.C. § 1983 creates a cause of action for money damages under the IDEA for the lost earnings and suffering of a parent pursuing IDEA relief.”

Given that so many circuits have already decided the availability of Section 1983 relief one way or another, I would have thought that the Ninth’s opinion would include an extensive analysis of the issue, comparing the merits of each side and the reasoning of the other circuits.  Instead, in a very short opinion, the Ninth is satisfied to say that:

We are persuaded by the recent thoughtful, well-reasoned opinion of the Third Circuit. See A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 797-803 (3d Cir. 2007) (en banc) (surveying the existing circuit split and analyzing recent Supreme Court precedent on the availability of § 1983 as a remedy for violation of a federal statute).  In A.W., the Third Circuit overruled its prior authority to the contrary and held:     

The IDEA includes a judicial remedy for violations of any right “relating to the identification, evaluation, or educational placement of [a] child, or the provision of a free appropriate public education to such child.” § 1415(b)(6). Given this comprehensive scheme, Congress did not intend § 1983 to be available to remedy violations of the IDEA . . . .     

Id. at 803 (alteration in original). We now join the First, Third, Fourth, and Tenth Circuits and hold that the comprehensive enforcement scheme of the IDEA evidences Congress’ intent to preclude a § 1983 claim for the violation of rights under the IDEA.

Such is the case in Menken v. Emm, case no. 05-164637 (9th Cir. Sept. 19, 2007), in which the appellees argued that the notice of appeal was not timely.  The district court granted a motion to dismiss for lack of personal jurisdiction but never entered a separate order.  The issue thus became when the 30-day deadline for filing the notice of appeal was triggered.

The analysis is rather straightforward.

The date of entry of a judgment triggers a 30-day deadline to appeal from it.  (Fed. R. App. P. (“FRAP”) 4(a)(1).)  For this purpose, the date of entry is defined by FRAP 4(a)(7), which sets forth two different standards depending on whether the judgment or order requires a separate document under the Federal Rules of Civil Procedure:

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a)(1) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs: the judgment or order is set forth on a separate document, or 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

So, determining the deadline for the notice of appeal from any given judgment involves two steps once the judgment is identified: (1) determine when — according to the definition of “entry” in FRAP 4(a)(7) — the judgment was entered for purposes of FRAP 4(a); and (2) add thirty days.  Simple, right?

The appellees in Menkem didn’t think so.  The order appealed from in that case fell under FRAP 4(a)(7)(A)(ii) because it required a separate document, which was never filed.  The court makes quick work of the appellees’ argument that FRAP 4(a)(7) sets the deadline for filing the notice of appeal:

[Appellees argue] that if more than 150 days have passed from the entry of the order, the time to appeal that order has expired.  [Appellant] correctly asserts that under Federal Rule of Appellate Procedure 4(a)(7)’s plain language, judgment was entered after 150 days, which then started the Federal Rule of Appellate Procedure 4(a)(1)(A) 30-day appeals period. In other words, Menken had 180 (150 days plus 30 days) from entry of the order on January 27, 2005 in which to appeal.

[Appellant] filed his notice of appeal on July 22, which is 176 days from the entry of the January 27, Order.  [Appellant's] notice of appeal is therefore timely.

It’s surprising appellees would want to get started on the wrong foot with this argument.  As the court notes, the result is evident from the plain language of the rule.

Turning to the merits of the appeal, the Ninth applies a straightforward personal jurisdiction analysis and reverses the district court’s order dismissing the case for lack of personal jurisdiction.  Professor Martin at California Appellate Report calls this a “wonderful” opinion for schooling students on personal jurisdiction.  He also evaluates Judge Bybee’s concurring opinion, which advocates an abbreviated test for personal jurisdiction.  He gives high praise to Judge Bybee for his willingness to buck doctrine and think outside the box but finds his argument unpersuasive.

The court took up the jurisdictional issue on its own, demonstrating yet again how carefully it guards access to its jurisdiction.

The general pro se statute (28 U.S.C. § 1654 [emphasis added]) provides that “parties may plead and conduct their own cases personally,” which the court notes grants only a right personal to Stoner.  Standing to sue on behalf of the government does not convert the claim into a personal one, says the court, and absent statutory authority to proceed pro se on the government’s behalf, a relator may not do so.  The absence of such a provision from the False Claims Act suggests that Congress intended qui tam cases to be subject to normal procedural restrictions that prohibit a non-lawyer from representing anyone but himself.

Ironically, Stoner, the relator in this case, is an attorney.  He just isn’t admitted in California or before the federal district court in California, where he brought suit.  On remand, the Ninth directs that he be granted time to obtain counsel or obtain pro hac vice admission to the district court.  He could have saved himself a lot of trouble by applying for pro hac vice admission in the first place.

The government appealed from the District Court order.  Stanton makes a two-pronged challenge to the government’s right to appeal.

First, he contends that jurisdiction is lacking because the government may appeal only where authorized by Congress and the Criminal Appeals Act, 18 USC §3731, does not explicitly authorize the government to appeal from a district court order reversing a conviction entered by a magistrate and ordering an entry of acquittal.  Right on both counts, says the court, but immaterial.  Section 3731 is expansive, not restrictive, and essentially authorizes appeal by the government so long as it does not violate the Double Jeopardy Clause.  Since reversing the district court here would reinstate Stanton’s conviction without the need for a retrial, the Double Jeopardy Clause is not violated.

Second, Stanton contends that Section 3731 does not authorize an appeal in his case because it only authorizes appeals from the dismissal of an indictment or information, and he was charged by way of criminal complaint.  Once again, the liberal construction of Section 3731 comes to the government’s rescue.  Section 3731 itself provides that “[t]he provisions of this section shall be liberally construed to effectuate its purposes.”  Since the Supreme Court has identified the section’s purpose as “avoiding the creation of nonconstitutional barriers to appeal,” and Stanton identifies no constitutional reason why Section 3731 should not apply in cases where the defendant is charged by criminal complaint, the distinction does not prevent appeal.

The Board of Immigration Appeals denied a motion by the Garcias for leave to file a late brief.  The grant or denial of such a motion is within the BIA’s discretion.

Here, however, the BIA’s order offered no “reasoned explanation” for its denial of the motion:

Denying the Garcias’ motion, the BIA conclusorily reasoned: “We find the reason stated by the respondents insufficient for us to accept the untimely brief in our exercise of discretion.”

This left the Ninth Circuit without any means to conduct a meaningful review for abuse of discretion:

We are similarly “unable to determine from the BIA’s conclusory statement whether it abused its discretion by refusing to accept [the Garcias’] late brief.”  [Citation.]  We therefore remand the petition to the BIA.

Because the BIA could reach a different conclusion on its hardship determination if it considers the Garcias’ brief on remand, we do not reach the Garcias’ other legal or constitutional claims.

Remanded.

The decision gathered significant attention from blogs in the Ninth Circuit.  Seattle Trademark Lawyer and IP Law Observer gave rather objective analyses.  California Appellate Report and Appealing in Nevada were more opinionated about the result, appearing to come down on opposite sides.  (Readers curious to see the packaging of the products can see the appendix to the opinion or, better yet, see the sharp color pictures at the Appealing in Nevada post.)

On July 11, National Beverage issued a press release about the case, in which it trumpeted the Ninth Circuit’s reversal of a preliminary injunction that “’stopped’ the most dynamic product launch over the past several decades!”

So, this seems pretty significant . . . but it appears the court’s effort was for naught. Hansen’s moved just 4 days later (from what I can make out from the docket on PACER) to vacate the opinion. It seems that the parties had settled the case three weeks prior to the court’s filing of its opinion, and the settlement made permanent the injunction that was the subject of the appeal.  Thus, in an August 17, 2007 order, the Ninth Circuit vacates its opinion because it lacked jurisdiction.

Our mandate has not yet issued. It has now been made known to us that, on June 8, 2007, the parties had executed a settlement agreement that, among other things, stipulated that the preliminary injunction that was the subject of the appeal was made permanent.  As a consequence, there was no longer a controversy between the parties over the preliminary injunction at the time we issued our opinion, and the case was moot.

We lacked jurisdiction to decide a moot case. [Citation.]  We accordingly VACATE our opinion and decision of June 29, 2007, and DISMISS this appeal. [Citation.]

From what I can make out of the PACER docket, National Beverage not only opposed Hansen’s motion to vacate but also filed a motion of its own. Though filed under seal, this excerpt from an August 17, 2007 entry in the PACER case summary discloses something about the nature of the motion:

The motion of National “To Preserve This Court’s Jurisdiction and to Quash Order of District Court” is DENIED. The appeal of a preliminary injunction does not deprive the district court of jurisdiction to enter a permanent injunction.

This is certainly an odd situation. This excerpt makes you wonder whether National Beverage entered into the settlement with the intent that the injunction provision would be unenforceable. Also, I’ve tried to figure out why Hansen didn’t move to dismiss the appeal before the opinion was published. Any ideas?

The court dismisses the appeal.  The court finds that appellants lack standing to appeal because they were never parties in any of the underlying suits.  They were “merely potential class members in a potential class action suit.”  (Emphasis added.)  The court also finds the appeal moot because the cases were dismissed without a class ever being certified.

What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026  (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to apply in the case.  Plaintiff, operator of an adult “arcade, bookstore, novelty shop, and video store,” challenged a county ordinance that required adult businesses to close between 2 a.m. and 6 a.m.  The question certified by the Ninth Circuit is very specific:

Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point.  It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).”  But they asked it nicely.

California Appellate Report offers some details on the “frenetic pace” at which the Ninth Circuit has been certifying questions to state supreme courts this year, as well as some tongue-in-cheek commentary on the wisdom of the ordinance challenged in this case.

We agree with the district court that Riedl’s petition must be denied. She has failed to provide any valid reasons for waiting so long to challenge her convictions on these grounds, and thus plainly does not satisfy the requirements for the highly unusual remedy of coram nobis relief. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) adopting four factors as predicates for coram nobis relief, including that “valid reasons exist for not attacking the conviction earlier”). Riedl attempts to overcome her unjustified delay by invoking the equitable doctrine of laches, arguing that the government has not been prejudiced by her tardiness. Cf. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (addressing laches in coram nobis context). We reject the notion that a petitioner can employ laches in such a fashion. To follow Riedl’s suggestion under the circumstances of this case would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final.

Riedl was attempting to turn laches from a shield into a sword.  The Ninth Circuit finds offensive use of the doctrine . . . well, offensive:

Nevertheless, Riedl is incorrect that coram nobis relief is available as long as it is not barred by laches. Our decisions that have considered laches have done so only because the government invoked the doctrine as a supplemental defense.  Those decisions have not purported to overrule the Hirabayshi framework, which places the initial burden of justifying delay squarely on the petitioner, nor as three-judge opinions could they have done so.

(Emphasis in original.)

Professor Dodson is also soliciting thoughts from all comers on the restyling of the rules.  So if you have any, head over there.

Technorati Tags: Federal Procedure, Federal Rules of Ciivl Procedure

First, the procedural maneuvering.  Landowners sued Clark County for inverse condemnation in Nevada state court.  While the action was pending, the Landowners filed a voluntary Chapter 11 bankruptcy petition, listing the inverse condemnation claim as a contingent and unliquidated claim of the estate. When the Landowners advised the state court judge that they were not ready to proceed with trial, the court advised them that there were no available trial dates between then and the expiration of the five-year limitations period under state law for bringing a claim to trial (which was about three months off) and that the case would be automatically dismissed when the limitations period ran.

What to do?

Why, remove the case to bankruptcy court!  Which is exactly what the Landowners did.  The case was tried to the bankruptcy court three and one-half years later, well after the expiration of the state limitations period.  The district court then withdrew the reference to the bankruptcy court and entered judgment of more than $10 million for the Landowners.  Slick.

The County says too slick.  It contends on appeal that, under the Rooker-Feldman doctrine, the district court lacked subject matter jurisdiction because any judgment undercut the state court’s ruling regarding dismissal, which was inextricably intertwined with the claim the Landowners intended to pursue in the adversary proceeding.  The Ninth disagrees and holds that the Rooker-Feldman doctrine is inapplicable.  The district court did not have to find that the state court was wrong in order to find for the Landowners because the state court never actually dismissed the case.  It only stated that the case would be dismissed when the limitations period ran, by which time the case had been removed from the state court.

Where did the double duty judge come in?  Believe it or not, the bankruptcy judge and the district court judge were the same person.  After trial in the bankruptcy court, the bankruptcy judge, Robert Jones, was confirmed as a district court judge of the same district.  A year after his confirmation as district judge, he issued Findings of Fact and Conclusions of Law in the bankruptcy action, which he signed as a “United States Bankruptcy Judge.”  He then withdrew the reference sua sponte for reasons of judicial efficiency and entered judgment in his capacity as a district judge.  And the Ninth says, “No problem.”

“It was pretty unanimous that we were not gaining anything by going from 11 to 15 judges,” said 9th Circuit Judge Diarmuid O’Scannlain, who is based in Portland, Ore. O’Scannlain, an appointee of President Ronald Reagan, said, “I would have preferred to wait until the two years were up because that is what we notified the bar we would do.”

The Ninth Circuit is the only circuit that does not have every judge sit on every en banc panel.  This has been one of the size-related criticisms leveled against it.  The Ninth Circuit’s unique en banc procedure has been defended by judges from the circuit in testimony to Congress, including Judge Thomas and Judge Kozinski, each in his capacity as the en banc coordinator for the court.

Judge Thomas’s testimony in 2005 included his view that the 15-judge panels would “ameliorate” the concern that the use of only 11 judges on en banc panels results in a decision by less than a majority of the court’s judges.

Long before the court adopted the 15-judge panel, Judge Kozinski’s statement in 2003 claimed that the large size of the court was a benefit to en banc review because even though not all judges sit on the en banc panel, “[t]he fact that a large number of judges look at a decision to decide whether it should be taken en banc means that cases get a much more thorough review in a large circuit.”

As this testimony demonstrates, the debate over the size of the Ninth Circuit court has been going on for years.  And if this recent spike in blog posts about the size of the court is any indication, the debate isn’t going to end any time soon.

Technorati Tags: Ninth Circuit, Federal Courts

But are the changes purely stylistic?  Adjunct Law Prof Blog points to an article by Columbia Law Professor Michael Dorf challenging that characterization, noting that despite the intent that the changes be stylistic only, some unintended ambiguities, and corresponding substantive changes, may result.

Technorati Tags: Federal Rules of Ciivl Procedure, Federal Procedure

Coincidentally, today the Ninth Circuit issues United States v. Jimison, case no. 06-30417 (July 16, 2007), in which Judge Kozinski frames the issue as “when a defendant can be subject to a sentencing enhancement” under U.S. Sentencing Guidelines “for possessing a firearm in connection with an offense that he never commits.”  Specifically, the issue in this case is whether the evidence was sufficient to support an enhancement to felony firearms possession where the possession by the defendant is “with knowledge, intent, or reason to believe that [the firearms] would be used or possessed in connection with another felony offense.”  U.S.S.G. § 2K2.1(b)(6) (formerly § 2K2.1(b)(5)). 

The defendant, after beating up his girlfriend, stole her car.  He “stumbled upon” an unlocked ranch house from which he stole some guns, then went to a friend’s home.  Clearly distraught, he told is friend he thought he had killed his girlfriend and that he was “going to go Rambo.”  (Link added.)  Is this enough for the sentencing enhancement?

The Ninth Circuit (without benefit of precognitives, of course) says it is not enough.  The defendant’s “Rambo” remark is “an offhand comment” that “lacks sufficient specificity to establish that [defendant] formed a firm intent to shoot it out with the police.”  The court finds that lacking any evidence of context to the contrary, the defendant’s remark is the equivalent of a parent who says “I’m going to wring his neck” upon learning that is child his in trouble at school again.

It also didn’t hurt that the defendant called the owner of the guns, apologized and arranged to return them!  Why can’t all criminals be so polite?

The common question posed by me and Bashman (as stated by him):

It is interesting to consider whether it would have been appropriate, in the first instance, for the federal district court to ignore the earlier Third Circuit ruling if the federal district court were confident that the earlier Third Circuit ruling had incorrectly predicted how New Jersey’s highest court would rule on the issue presented, even though New Jersey’s highest court hadn’t yet ruled on the issue.

Bashman posed the question, and I offered my answer in last week’s post.  Bashman now offers his answer in his weekly law.com article.

In answering the question, Bashman sides with predictability, feeling that the best approach is for the district court to adhere to the circuit’s ruling until the circuit decides to alter its prediction of state law.  In my consideration of the issue, I opted for accuracy over predictability, suggesting that the district court should use the circuit opinion as a starting point and evaluate the prediction therein in light of subsequent developments in state law.

In his article, Bashman considers a second question: whether the Third Circuit was right to reconsider the question in the absence of en banc review.  He and I reach the same conclusion on this one, for similar reasons . . .

We both agree that the Third Circuit did the right thing.  Bashman writes:

In my view, the 3rd Circuit panel that issued last week’s decision departing from an earlier three-judge panel’s Erie prediction did the right thing, even in the absence of rehearing en banc. Because a federal appellate court’s prediction of state law does not bind the state court system, it would be an unfortunate waste of resources for a federal appellate court to hold an en banc rehearing to decide whether to depart from that court’s earlier prediction of how a state court of last resort would rule. Moreover, an earlier federal appellate panel’s prediction of state law should not continue to govern forever, despite persuasive intervening indications of incorrectness, in the absence of a definitive resolution from the applicable state court of last resort.

Bashman’s last sentence jibes with my statement last week that a federal court prediction of how a state’s highest court would rule has a “limited shelf life.”  It would make no sense at all for the circuit to stick to a former prediction it no longer agrees with in light of intervening developments at the state level, even if those developments don’t include a decision from the state high court.  One could even argue that the question isn’t even being “reconsidered” unless there has been absolutely no change in the factors the state court would consider.  Nineteen years had passed in this case, with many intervening developments at the state court level.  I think this demonstrates that the relevant question is always “How would the state’s highest court decide the issue now?”

This argument could be taken too far, of course.  After all, one could argue that if the relevant question is how the state high court would decide the issue now, then the federal court should reexamine the state law question every time the issue arises since a state high court can depart from its earlier rulings.  That is a rare occasion, however, and I don’ think it justifies taking the “now” question that far.

Thanks to Professor Rubinstein at Adjunct Law Prof Blog for the link.

UPDATE (6/28/07): For a more detailed analysis, see the law review article linked in Bashman’s article. That article, written by Colin E. Wrabley and appearing in the Seton Hall Circuit Review, starts (footnote omitted):

The precedential force of decisions by a federal circuit court of appeals might strike the typical practitioner as a settled issue. It is axiomatic, for example, that a federal circuit court of appeals’ decision on questions of federal law binds subsequent panels of that court and district courts within that circuit, absent intervening contrary authority in the form of a federal statute, a decision from the court of appeal sitting en banc, or the Supreme Court of the United States. One might anticipate that a federal circuit court of appeals’ “prediction” of state law in a diversity jurisdiction case pursuant to Erie Railroad Co. v. Tompkins, would have similar force, but is this true?

]]> http://www.calblogofappeal.com/2007/06/28/conundrum-follow-up/feed/ 0 http://www.calblogofappeal.com/2007/06/26/unitherm-precludes-plain-error-review-too/ http://www.calblogofappeal.com/2007/06/26/unitherm-precludes-plain-error-review-too/#comments Tue, 26 Jun 2007 07:47:03 +0000 Greg May http://www.calblogofappeal.com/2007/06/26/unitherm-precludes-plain-error-review-too/ Watch rule 50 of the Federal Rules of Civil Procedure!

In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. (2006) 546 U.S. 394, the Supreme Court held that a party who fails to renew a Rule 50(a) pre-verdict motion for judgment as a matter of law by moving under Rule 50(b) post-verdict waives any review of the sufficiency of the evidence.  Prior to Unitherm, an appellant in the Ninth Circuit likewise waived sufficiency of the evidence review in such circumstances, but the Court of Appeals could review for plain error on the face of the record that would result in a “manifest miscarriage of justice” if not corrected  See Patel v. Penman (1996) 103 F.3d 868, 878.

In Nitco Holding Corp. v. Boukijian, case no. 05-16438 (June 25, 2007), the Ninth Circuit holds that such plain error review is likewise precluded by Unitherm.  In the absence of both a Rule 50(a) motion and a post-verdict Rule 50(b) motion either for judgment as a matter of law or for a new trial, the Court of Appeals cannot review even for plain error.

So don’t forget those post-verdict motions.

]]> http://www.calblogofappeal.com/2007/06/26/unitherm-precludes-plain-error-review-too/feed/ 1 http://www.calblogofappeal.com/2007/06/18/ninth-circuit-allows-35-year-old-conduct-to-enhance-child-porn-conviction/ http://www.calblogofappeal.com/2007/06/18/ninth-circuit-allows-35-year-old-conduct-to-enhance-child-porn-conviction/#comments Mon, 18 Jun 2007 23:06:19 +0000 Greg May http://www.calblogofappeal.com/2007/06/18/ninth-circuit-allows-35-year-old-conduct-to-enhance-child-porn-conviction/ The decision begins: “This appeal tests the temporal and relational limits of prior conduct as a sentencing enhancement.”  That seems to be putting it mildly.  In U.S. v. Garner, case no. 06-10417 (June 18, 2007), the Ninth Circuit allows the defendant’s sexual abuse of his children more than 35 years ago to be considered in enhancing his sentence for attempted receipt and distribution of child pornography.  The court finds no time or relationship limitations built into the “pattern of activity involving the sexual abuse or exploitation of a minor” requirement for enhancement under section 2G2.2(b)(5) of the Sentencing Guidelines.

Nothing from Ninth Circuit Blog yet (which is almost certain to weigh in on this), but Professor Martin notes that the 22-year sentence means Garner will die in prison.

One wonders if this has to be some sort of record.  The oldest conduct utilized for enhancement in any of the cases cited by the court was 26 years before the conviction.

]]> http://www.calblogofappeal.com/2007/06/18/ninth-circuit-allows-35-year-old-conduct-to-enhance-child-porn-conviction/feed/ 0 http://www.calblogofappeal.com/2007/06/07/claiborne-case-sparks-debate/ http://www.calblogofappeal.com/2007/06/07/claiborne-case-sparks-debate/#comments Thu, 07 Jun 2007 19:55:24 +0000 Greg May http://www.calblogofappeal.com/archives/133 In Claiborne v. U.S., case no. No. 06–5618 (June 4, 2007), the U.S. Supreme Court decided that the death of the petitioning criminal defendant rendered the case moot, and thus it vacated the judgment of the Eighth Circuit Court of Appeals that had reversed the district court’s downward adjustment from the federal sentencing guidelines.  The order itself tells you nothing about the case, so I suggest you start with Kimberly A. Kralowec at The Appellate Practitioner, who provides a brief rundown, from which it makes sense next to check this SCOTUSBlog post from before the ruling, describing efforts by a similarly situated petitioner to save the Claiborne case despite its technical mootness.

Columbia law professor Michael Dorf uses the Claiborne case as a starting point for a short Findlaw article on the wider subject of the role of the Supreme Court and tensions in justiciability doctrine, A Mootness Dismissal Illustrates the Supreme Court’s Split Personality: Is it a Constitutional Court or a Court of Error? The article describes the underlying issue in Claiborne, examines whether other rules might have saved the Claiborne case, argues that the Supreme Court should not be subject to the same strict justiciability standards of lower federal courts, and compares the more liberal justiciability standards of courts of last resort in some other countries.  All this in a very readable 1900 or so words.

]]> http://www.calblogofappeal.com/2007/06/07/claiborne-case-sparks-debate/feed/ 0 http://www.calblogofappeal.com/2007/06/01/ninth-circuit-panel-splits-on-appellate-jurisdiction-over-denial-of-fsia-immunity-claimed-via-res-judicata/ http://www.calblogofappeal.com/2007/06/01/ninth-circuit-panel-splits-on-appellate-jurisdiction-over-denial-of-fsia-immunity-claimed-via-res-judicata/#comments Fri, 01 Jun 2007 07:02:24 +0000 Greg May http://www.calblogofappeal.com/archives/121 The Ninth Circuit tackles a question of appellate jurisdiction in Gupta v. Thai Airways International, case no. 04-56389 (May 30, 2007).  The riddle — which the majority overlooks until it responds to the dissent — arises from the intersection of res judicata and the “collateral order” exception to the final judgment rule.

Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) .  The airline contended that an identical state court action brought by Gupta was res judicata on this issue because it was dismissed for lack of subject matter jurisdiction on FSIA immunity grounds.  It also argued the merits of FSIA immunity independently of its res judicata argument.  The district court rejected both arguments, finding that the prior ruling was not res judicata because it did not go to the merits of the dispute and that an exception to the FSIA applied.

On appeal, however, the airline did not assert the district court erred in its determination that an exception to the FSIA applied.  It relied exclusively on its res judicata argument. 

This turns out to be what splits the dissent from the majority on appeal.

The Ninth Circuit (and its sister circuits) have long recognized the appealability of an order denying a motion to dismiss based on FSIA immunity.  The majority classifies this as such an appeal, and thus asserts jurisdiction under this well-established exception to the final judgment rule.

The issue becomes thornier when you read the dissent, in which Judge Tashima argues that the court must examine “each claim or issue presented separately to determine their jurisdiction on interlocutory appeal.”  Conceding that he would find jurisdiction over the issue of whether the district court erred in finding that the FSIA exception applied, Judge Tashima contends that the res judicata issue is sufficiently distinct to take it outside the rule allowing review of orders denying FSIA immunity:

While it is true that our case law permits an immediate interlocutory appeal from an order denying a motion to dismiss based on foreign sovereign immunity, it is equally well-settled that the denial of a motion to dismiss based on res judicata grounds is not immediately appealable.

***

Although the cases discussing the collateral order doctrine sometimes loosely refer to interlocutory orders as being appealable, in fact, the cases actually analyze the specific claim or issue presented in determining the scope of their jurisdiction on an interlocutory appeal. And each claim presented must independently meet the requirements of the collateral order doctrine in order for it to be considered on interlocutory appeal. Appellate jurisdiction over one claim rejected in a district court order does not confer jurisdiction over all other claims rejected in the same order.(Citations omitted, emphasis in original.)

It seems clear that had the airline appealed on both grounds, Judge Tashima would assert jurisdiction over the merits of the FSIA immunity claim but not over the res judicata argument for the same claim of immunity. 

This is too much hair-splitting for the majority, which responds in a footnote to its statement that “It is from this order that Thai Airways is appealing.”  (Emphasis in original.) The majority contends that the dissent relies on a false premise that the FSIA immunity issue and res judicata issues are distinct.  It says that since the res judicata issue involves and is based solely on FSIA immunity, and is indeed determinative on the issue, the appeal falls within the rule of appealability under the collateral order doctrine for orders denying FSIA immunity.

Whatever the asserted ground of error, the majority has a point that in the end, the order appealed from determined that there was no FSIA immunity.  And that is all they needed to bring it within the well-established exception to the final judgment rule.

]]> http://www.calblogofappeal.com/2007/06/01/ninth-circuit-panel-splits-on-appellate-jurisdiction-over-denial-of-fsia-immunity-claimed-via-res-judicata/feed/ 1 http://www.calblogofappeal.com/2007/05/31/the-proper-action-when-an-appeal-is-mooted/ http://www.calblogofappeal.com/2007/05/31/the-proper-action-when-an-appeal-is-mooted/#comments Thu, 31 May 2007 08:27:56 +0000 Greg May http://www.calblogofappeal.com/archives/120 Offering a concise lesson on when a moot federal appeal should be dismissed and when it shouldn’t is the Ninth Circuit’s decision in NASD Dispute Resolution, Inc. v. Judicial Council of the State of California, case no. 02-17413 (May 30, 2007). 

Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law.  The district court dismissed the suit on the ground that the defendants were state entities with Eleventh Amendment immunity from suit in federal court.

The plaintiffs appealed. In an intervening decision in another case the Ninth Circuit held that the California standards were preempted by federal securities law, and the California Supreme Court reached a similar holding in yet another case involving different parties.  These intervening cases rendered the present appeal moot.

The issue before the court was whether, in light of the appeal’s mootness, the court should vacate the trial court’s dismissal of the case or instead let the trial court judgment stand and dismiss the appeal.  The state defendants did not want the trial court ruling disturbed, since it held that the Judicial Council and its members were immune from suit in federal court. 

The usual action in the event of a moot appeal is to vacate the decision below with a direction to dismiss, which is what the court does here.  Generally, only when mootness is the result of conduct by the party seeking appellate relief — such as by settling on appeal — should the court dismiss and leave the judgment below intact.  This sufficiently serves the public interest by protecting the district court decision against “a refined form of collateral attack” — an appellant settling on appeal so as to have the judgment below vacated.

The Judicial Council urged that equity and public policy weighed against vacatur because NASD and NYSE were unlikely to sue the Council or its members again, and the public has an interest in preserving judicial precedent.  The court spends a short time on the value of district court opinions as “precedent” and the effect of a “vacated on other grounds” history for a district court case. Since the district court decision will remain in the Federal Supplement and is useful only as persuasive authority anyway, the public interest in preservation of precedent does not require that the ruling remain intact.

This last point is especially sensible and relevant to the discussion in this earlier post regarding the utility of citing district court decisions.

]]> http://www.calblogofappeal.com/2007/05/31/the-proper-action-when-an-appeal-is-mooted/feed/ 0 http://www.calblogofappeal.com/2007/05/29/chile-pornographer-remains-anonymous-in-ninth-circuit-ruling-and-limits-his-restitution-exposure-by-exploiting-developing-world-victims/ http://www.calblogofappeal.com/2007/05/29/chile-pornographer-remains-anonymous-in-ninth-circuit-ruling-and-limits-his-restitution-exposure-by-exploiting-developing-world-victims/#comments Wed, 30 May 2007 01:13:12 +0000 Greg May http://www.calblogofappeal.com/archives/116 Appellate Law & Practice and Decision of the Day both report on what the latter calls a “remarkable decision” today from the Ninth Circuit. Both write about the fact that in United States v. Doe, case no. 05-50474 (May 29, 2007), the Ninth Circuit allows the defendant — a child pornographer who pleaded guilty to molesting and photographing young teen boys on his trips outside the U.S. — to remain anonymous in the disposition of the appeal.

Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says). Decision of the Day is appalled that the circuit judges would allow this, especially in light of their reputations:

Shame on the prosecutors and the courts for allowing a criminal defendant to remain anonymous, especially in light of the fact that this was his fourth time getting caught with kiddie porn. Neither the district judge – GWB appointee Klausner – nor the three appellate panelists – Reagan appointees O’Scannlain and Hall and GWB appointee Callahan – have a reputation for being generous with criminal defendants.

“S. COTUS” at Appellate Law & Practice takes a slightly different view –

Perhaps these appointees wanted to make things easier for a prosecutor, or the so-called “victims.” In reality, there are a lot of sealed proceedings out there, but usually both sides agree to it, and I suspect that these judges were well-aware of this, and didn’t want to rock the boat.

The so called victims? I’ll get to that later. Back to anonymity for now.

The court notes that allowing the use of a pseudonym is reserved for “exceptional cases where necessary to protect a person from injury or harassment.” But the judges never tell us how that standard applies in this case. In fact, the whole issue of anonymity rates no more than a footnote in the opinion. The defendant made a motion for the disposition to be filed using a pseudonym, and instead of explaining why this was necessary, the court merely continues the sealed nature of the proceedings begun in the district court. Unless they could not discuss this without imposing the harm they sought to avoid through use of the synonym, why did they avoid this discussion? The docket shows no separate order on the motion.

The defendant’s anonymity seems especially inappropriate in light one of his assertions of error: that the victim statements in the pre-sentencing report were anonymous! He loses on this issue, though.

While he also loses on the issue of whether he should have to pay the restitution ordered by the district court, it’s somewhat shocking to see that the restitution the court affirms amounts to $16,475 total for eight victims – about $2,060 per victim. Amazingly, this includes two years of monthly counseling, vocational training (to make up for some of the victims having to leave school), and a management fee to the organization coordinating the services. For traveling abroad to an unnamed “developing world” country, Doe gets bargain basement restitution costs — then complains about them.

Doe is sentenced to 204 months. As for “S. COTUS’s” reference to “so-called ‘victims’ ” — read the excerpt from the plea agreement, then see if you agree.

UPDATE (5/30/07): “S. COTUS” at Appellate Law and Practice has updated his post to explain why he used the term “so-called ‘victims.’ ” He concedes that the children in this case were genuine victims. He makes a decent case for attributing it to carelessness, and I take him at his word.

]]> http://www.calblogofappeal.com/2007/05/29/chile-pornographer-remains-anonymous-in-ninth-circuit-ruling-and-limits-his-restitution-exposure-by-exploiting-developing-world-victims/feed/ 0 http://www.calblogofappeal.com/2007/05/25/ninth-circuit-takes-appellate-jurisdiction-over-pretrial-stay-order/ http://www.calblogofappeal.com/2007/05/25/ninth-circuit-takes-appellate-jurisdiction-over-pretrial-stay-order/#comments Fri, 25 May 2007 18:51:08 +0000 Greg May http://www.calblogofappeal.com/archives/115 A whole lot of insurance companies sue a whole lot of doctors and clinics. The insurers allege that the defendants gave away cash and vacation packages to lure patients into undergoing unnecessary procedures, for which defendants billed the plaintiff insurers, who paid millions on the claims. Several individual defendants are also facing criminal prosecution and move to stay the civil proceedings because discovery would implicate their Fifth Amendment rights. The clinics say they can’t put on an adequate defense if the action is stayed only as to the individuals facing prosecution, so they, too, ask for a stay of the proceedings. The district court obliges the stay requests — apparently in multiple orders, as the plaintiff insurers take three appeals and one writ petition from the same underlying case. Blue Cross and Blue Shield v. Rubin, case no. 05-56261 (May 25, 2007).

The Ninth Circuit holds it has appellate jurisdiction notwithstanding the lack of a final judgment because the stay orders, all of which are indefinite in duration and could last for years, place the plaintiff insurers “effectively out of court.” In doing so, the Ninth joins a majority of other circuits finding appellate jurisdiction in such circumstances, and explains that the indefinite delay poses threats of “denying justice by delay,” lost evidence and faded witness recollections, and irreparable harm to the business plaintiffs, including the risk of going out of business in the interim.

A second lesson for counsel lies in the decision on the merits. The court neither affirms nor reverses, but vacates the stay orders and remands for further consideration by the district court because there is an inadequate record to review the court’s exercise of discretion.

]]> http://www.calblogofappeal.com/2007/05/25/ninth-circuit-takes-appellate-jurisdiction-over-pretrial-stay-order/feed/ 0 http://www.calblogofappeal.com/2007/05/24/effective-cert-petitions-in-the-absence-of-direct-circuit-split/ http://www.calblogofappeal.com/2007/05/24/effective-cert-petitions-in-the-absence-of-direct-circuit-split/#comments Thu, 24 May 2007 08:15:41 +0000 Greg May http://www.calblogofappeal.com/archives/112 SCOTUSblog has an update to its earlier post on drafting effective cert petitions in the absence of a direct circuit split. The post links to the most recent podcast and provides all the information you need to get up to date on SCOTUSblog’s coverage of this topic. It also provides instructions for subscribing to SCOTUSblog’s podcasts, several of which have covered other aspects of cert petition drafting.

]]> http://www.calblogofappeal.com/2007/05/24/effective-cert-petitions-in-the-absence-of-direct-circuit-split/feed/ 0 http://www.calblogofappeal.com/2007/05/14/frcp-amendments-approved-and-transmitted-to-congress/ http://www.calblogofappeal.com/2007/05/14/frcp-amendments-approved-and-transmitted-to-congress/#comments Mon, 14 May 2007 07:14:12 +0000 Greg May http://www.calblogofappeal.com/archives/96 The Supreme Court approved amendments to the Federal Rules of Civil Procedure and transmitted those amendments to Congress on April 30.  They will take effect December 1, 2007 unless Congress legislates their rejection, modification, or deferral. 

Rules 1-86 were “restyled” — revised with the intent to make them easier to read and understand without substantively changing them.  For example, rule 59, governing new trial motions, is amended so subsection (a) is changed from a single, lengthy paragraph into paragraphs (a)(1)(A), (a)(1)(B), and (a)(2).  Not only easier on the eyes, but much easier to comprehend.

The amendments contain substantive changes as well, but none directly relating to the rules regarding entry of judgment and post-trial practice.

Helpful links to the advisory committee reports, including a side-by-side run-down of the style changes between old and proposed new rules, are provided here and here courtesy of Professors Counsellor and Ryan at Baylor Law School (blogging at Civil Procedure Prof Blog), and Professor Spencer at the University of Richmond School of Law (blogging at Federal Civil Practice Bulletin), respectively.

]]> http://www.calblogofappeal.com/2007/05/14/frcp-amendments-approved-and-transmitted-to-congress/feed/ 1 http://www.calblogofappeal.com/2007/05/10/a-chemistry-lesson-resolves-an-issue-of-first-impression-in-a-drug-case/ http://www.calblogofappeal.com/2007/05/10/a-chemistry-lesson-resolves-an-issue-of-first-impression-in-a-drug-case/#comments Fri, 11 May 2007 06:41:53 +0000 Greg May http://www.calblogofappeal.com/archives/93 In U.S. v. Hollis, case no. 05-30611 (May 7, 2007), the Ninth Circuit holds that under the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), under which “any fact [other than the fact of a prior conviction] that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt,” a defendant charged with distribution of a controlled substance (21 U.S.C. § 841(a)) cannot be subject to the higher sentencing standard for distribution of a “cocaine base” with a prior felony drug conviction (21 U.S.C. § 841(b)(1)(A)) unless the government pleads and proves that the cocaine base in issue is “crack” cocaine.  Citing earlier opinions for facts about the manufacture of cocaine powder and cocaine base, the court concludes that the two are “chemically identical,” and thus the term “cocaine base” in 21 U.S.C. § 841(b)(1)(A)(iii)) must mean “crack” in order to distinguish it from powder cocaine.  Nonetheless, the court upholds the conviction because the error was harmless in light of “overwhelming and uncontradicted evidence at trial that the substance Hollis distributed was crack.”

Technorati Tags: Ninth Circuit, criminal law

]]> http://www.calblogofappeal.com/2007/05/10/a-chemistry-lesson-resolves-an-issue-of-first-impression-in-a-drug-case/feed/ 0 http://www.calblogofappeal.com/2007/05/04/new-frap-and-ninth-circuit-rules-available/ http://www.calblogofappeal.com/2007/05/04/new-frap-and-ninth-circuit-rules-available/#comments Fri, 04 May 2007 23:54:34 +0000 Greg May http://www.calblogofappeal.com/archives/86 The Ninth Circuit website has posted the latest version (May 2007) of the Federal Rules of Appellate Procedure and Local Circuit Rules.  They can be downloaded here. Maybe I shouldn’t look a gift horse in the mouth, but it would be nice if the PDF file had internal links to make it a little easier to jump from one rule to another referenced within it, or from the table of contents to the listed rule.  But this PDF file is a nice resource nonetheless.

]]> http://www.calblogofappeal.com/2007/05/04/new-frap-and-ninth-circuit-rules-available/feed/ 0 http://www.calblogofappeal.com/2007/05/03/is-it-futile-to-cite-federal-district-court-opinions/ http://www.calblogofappeal.com/2007/05/03/is-it-futile-to-cite-federal-district-court-opinions/#comments Thu, 03 May 2007 08:18:54 +0000 Greg May http://www.calblogofappeal.com/archives/83 At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion.

Bashman appears to doubt lawyers will heed this advice:

The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited.

I think he’s right. And opposing lawyers will always feel compelled to respond on the merits rather than point out the cited case’s lack of authoritative effect.

UPDATE (5/4/07): I got to thinking about this post last night and had some thoughts for updating it today. It could wait until my thoughts formed more completely. After all, the blog was only in its fourth day and had a total of 20 or so hits. Then I woke up to see the avalanche of hits from the How Appealing blog (thanks for the traffic, Mr. Bashman) and wished I stayed up late last night to update.

There’s a good reason lawyers will always feel compelled to respond to the merits of a cited district court opinion. They should — at least if the merits were presented. The key is to stick to the merits without fighting over the significance that the point has been adopted by a district court.

Take a close look at where the Seventh Circuit drew the line. Here is what Chief Judge Easterbrook’s opinion said:

Finally, the litigants have debated at length the significance of Chicago Truck Drivers Health & Welfare Fund v. Teamsters Local 710, 2005 U.S. Dist. LEXIS 42877 (N.D. Ill. Mar. 4, 2005), which discusses the handling of stock received in demutualization. It is a pointless debate. The Teamsters’ plans have terms different from those of the Professional Benefit Trust. What’s more, decisions of district judges have no authoritative effect. [Citations.] District judges’ opinions often contain persuasive observations, but these can be incorporated into the parties’ briefs. It is never helpful to have an [sic] lengthy exchange on what a particular district court’s opinion “really means” and whether that case was correctly decided. The parties should learn what the opinion has to teach and weave its wisdom into their own presentations.

What’s the difference between arguing “whether the case was correctly decided” and “weaving its wisdom” into a brief, after which the parties will debate that wisdom? The only difference seems to be an actual citation to the opinion. Thus, the bottom line appears to be that the court wants to hear an argument about the merits of a position taken by a district court, but it doesn’t (or at least shouldn’t) care that a district court has actually adopted that position.

Fight over the merits of an idea, proposition, argument or what have you all you like. Just don’t slug it out over the significance of a district court having said it.

]]> http://www.calblogofappeal.com/2007/05/03/is-it-futile-to-cite-federal-district-court-opinions/feed/ 1 http://www.calblogofappeal.com/2007/04/30/the-ninth-circuits-split-personality-on-deadline-for-removal/ http://www.calblogofappeal.com/2007/04/30/the-ninth-circuits-split-personality-on-deadline-for-removal/#comments Mon, 30 Apr 2007 22:14:27 +0000 Greg May http://www.calblogofappeal.com/archives/78 Professor A. Robert Benjamin of the University of Richmond School of Law runs a blog every federal practitioner should love. The Split Circuits blog is a fine resource on — you guessed it — splits among the federal circuits. In a post earlier this month, Professor Benjamin pointed out a split of authority within the Ninth Circuit on the deadline for removing a state court lawsuit to federal court. Under 28 U.S.C. § 1446(b), the notice of removal must be filed

within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

The deadline becomes a thorny issue when multiple defendants are served at different times. Some district courts in the Ninth Circuit hold that the date of the first service is the trigger, others hold that the last date of service controls. Professor Benjamin’s post quotes extensively from Coleman v. Assurant, Inc., 463 F. Supp. 2d 1164 (D. Nev. 2006), which discusses this split.

]]> http://www.calblogofappeal.com/2007/04/30/the-ninth-circuits-split-personality-on-deadline-for-removal/feed/ 0 http://www.calblogofappeal.com/2007/04/30/ninth-circuit-prior-conviction-of-any-age-may-be-used-to-enhance-sentence-for-illegal-entry/ http://www.calblogofappeal.com/2007/04/30/ninth-circuit-prior-conviction-of-any-age-may-be-used-to-enhance-sentence-for-illegal-entry/#comments Mon, 30 Apr 2007 22:13:22 +0000 Greg May http://www.calblogofappeal.com/archives/76 Joining the Tenth and Eleventh Circuits, the Ninth Circuit holds that there is no limit on the age of convictions that may be used under section 2L.1.2 of the 2003 Sentencing Guidelines to enhance a sentence on a conviction for entering or remaining in the United States illegally. The defendant in this case was apprehended in 2003 and the trial court correctly considered convictions from 1972 and 1976. The case is United States v. Olmos-Esparza, Ninth Circuit case no. 06-50276 (April 24, 2007).

UPDATE: Jon Sands at Ninth Circuit Blog gives his detailed take on the case here.

CORRECTION: The author at Ninth Circuit Blog is Steve Kalar, posting here.

]]> http://www.calblogofappeal.com/2007/04/30/ninth-circuit-prior-conviction-of-any-age-may-be-used-to-enhance-sentence-for-illegal-entry/feed/ 0 http://www.calblogofappeal.com/2007/04/30/when-is-a-bankruptcy-court-order-an-appealable-final-judgment/ http://www.calblogofappeal.com/2007/04/30/when-is-a-bankruptcy-court-order-an-appealable-final-judgment/#comments Mon, 30 Apr 2007 22:12:49 +0000 Greg May http://www.calblogofappeal.com/archives/75 The Ninth Circuit gives a good summary of the rules applicable to this question in In re Brown, case no. 05-15605 (April 26, 2007). The court held that a minute order granting a creditor’s motion for summary judgment in an adversary action was an interim order that did not constitute a final judgment and thus did not trigger the time for debtor to appeal. The case gives excellent guidance for evaluating the language of an order and the procedural posture of the case as aids in determining appealability.

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