UPDATE (4/23/08): The holding described in this post was changed by the court’s amended opinion of April 17, 2008). See my coverage. 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…
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Appeal from Non-Appealable Order Does not Deprive District Court of Jurisdiction
Nasciemento v. Dummer, case no. 06-35062 (9th Cir. Nov. 21, 2007) presents a host of jurisdictional issues in a concise opinion. I recommend you read the entire opinion and will concentrate on just one of the issues here, since most of the principles in the opinion are well-established. 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…
- Appellate Jurisdiction, Appellate Procedure, Attorney Fees, Costs, Federal Courts, Federal Procedure, Removal
Appeal after Remand to State Court: Was Removal Reasonable?
The Ninth Circuit reminds us in Gardner v. MEGA Life & Health Ins. Co., case no. 06-55045 (9th Cir. Nov. 19, 2007), that even though no appeal lies from an order remanding a removed action to state court, the removing defendant may appeal an order to pay costs and fees imposed in connection with the remand under 28 U.S.C. § 1447(c). Here, it pays off. 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…
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Potentially Void Judgment Reversed on the Merits
Here’s a post I’ve been saving for a time where I’m too busy to spend much time on new content. I may get a post up later in the day, but in the meantime, I’ll get on my soapbox about why I think the Court of Appeal blew it on a jurisdictional question in Holland v. Union Pacific Railroad Co., case no. C052833 (3d Dist. July 30, 2007, certified for publication August 29, 2007). 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…
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A Technology-Induced Rush to Dismiss?
The Ninth Circuit has some unkind words for the district judge in Calderon v. IBEW Local 47, case no. 05-56937 (November 13, 2007). The district court dismissed the case for lack of prosecution because plaintiff’s counsel did not show up at a hearing on an order to show cause re dismissal for failure to serve one of the defendants. 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…
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Appellate Jurisdiction of a Non-Final Order: Denial of Eleventh Amendment Immunity
Everyone knows the general rule that an appeal lies only from a final judgment. But there are rare exceptions. State of Alaska v. EEOC, case no. 07-70174 (9th Cir. Nov. 8, 2007) illustrates one of them. 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…
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No Cert for Sentencing Cases
Federal Public Defender Steve Sady has a thoughtful and detailed post at Ninth Circuit Blog on SCOTUS’s denial of certiorari in three important sentencing cases.
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Summary Rejection of Plea Agreement is Error
It’s not often that you see an opinion on a writ petition start with a statement that the trial court erred but the writ is denied. The reason for that sort of introduction in Morgan v. U.S. District Court (D.Ariz.), case no. 07-70201 (9th Cir. Oct. 9, 2007), is because the petitioner sought just a little more relief than he was entitled to. 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…
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Law Prof Seeks Postponement in Federal Rules Amendments
Civil Procedure Prof Blog links to a letter/white paper from Professor Jeff Parker of George Mason University School of Law, in which he asks Congress to delay implementation of the changes to the Federal Rules of Civil Procedure. The amendments are intended largely as a “re-styling” of the rules without substantive change, but Professor Parker’s not so sure. Here’s an excerpt from the abstract: 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…
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Vindictive Prosecution Dismissal Gets De Novo Review
If you had been stopped twice at the U.S. – Mexican border trying to smuggle in illegal immigrants, told the customs officer both times that you had been paid to drive the vehicle across the border — and in one case admitted that you knew the compensation was for alien smuggling — and you weren’t prosecuted in either instance, you might figure that when you are prosecuted — this time, for trying to bring marijuana across the border — you’re better off explaining that you thought you were smuggling aliens instead of marijuana. That’s exactly how Sharon Ann Jenkins testified in her own defense at trial. While the jury was…
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An Attorney’s Individual Right to Appeal Court Criticism
This post at Split Circuits excerpts a recent Federal Circuit case noting a split among the circuits as to when an attorney in a federal case has a right to appeal separately from his or her client. That decision, Nisus Corp. v. Perma-Chink Systems, Inc., case no. 06-1592 (Fed. Cir. August 23, 2007) notes that while the Seventh Circuit requires the imposition of monetary sanctions before an attorney may appeal a court order critical of the attorney, other circuits, including the Ninth, “permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is…
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Federal Judicial Review of Arbitration Decisions
I’m pretty sure that Judge Bea didn’t intend to give me a chuckle in the first paragraph of his opinion in Collins v. D. R. Horton, Inc., case no. 05-15737 (9th Cir. Sept. 24, 2007). But he did. 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…
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IDEA Rights not Enforceable under Section 1983
In Blanchard v. Morton School District, case no. 06-35388 (9th Cir. Sept. 20, 2007), the Ninth Circuit becomes the fifth federal appellate circuit to hold that rights under the Individuals with Disabilities Education Act (IDEA) are not enforceable by an action under 42 U.S.C. section 1983. The court acknowledges that two circuits have gone the other way and that the Eighth Circuit has an intra-circuit split on the issue. 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…
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FRAP 4(a)(7)’s 150-day Period Sets Time of Entry of Judgment, not Time to Appeal
Sometimes, the rules seem rather tangled. But go through them slowly, and they usually all “come together.” 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,…
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Bankruptcy Court Order Enjoining Arbitration is Appealable
In Solidus Networks, Inc. v. Excel Innovations, Inc., case no. 06-17288 (9th Cir. Sept. 7, 2001), the Ninth Circuit holds that an injunction issued pursuant to 11 U.S.C. § 105(a) to stay arbitration to which the debtor is not a party is an appealable order. The court reasons that the injunction is effectively an extension of the automatic stay (11 U.S.C. § 362). Since the automatic stay itself is effectively an injunction issuing from the bankruptcy court,and orders denying or granting relief from the automatic stay are appealable, the Ninth saw “no reason to treat the instant injunction differently.” The court took up the jurisdictional issue on its own, demonstrating…
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Qui Tam Relator May Not Proceed Pre Se on Behalf of Government
The False Claims Act allows an individual (called a “relator”) to bring a civil action (a qui tam action) “for the person and for the United States Government” against persons who have defrauded the government. 31 U.S.C. § 3730(b)(1). In Stoner v. Santa Clara Office of Education, case no. 04-15984 (9th Cir. Sept. 7, 2007), the Ninth holds that a relator may not proceed pro se on behalf of the United States, anf thus the district court correctly dismissed the claim. 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…
- Appellate Jurisdiction, Appellate Procedure, Constitutional Law, Criminal Procedure, Double Jeopardy, Federal Procedure
Expansive Congressional Authorization for Government Appeals in Criminal Cases
In U.S. v. Stanton, case. no. 06-10519 (9th Cir. August 31, 2007), Stanton was convicted by a U. S. Magistrate Judge in a bench trial. He appealed to the District Court, which reversed his conviction. 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…
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Review for Abuse of Discretion Impossible when Record Fails to Disclose Reasons for Decision
Gomez v. Gonzales, case no. 06-70941 (9th Cir. August 22, 2007) demonstrates how the abuse of discretion standard of review can be undermined by a weak record. The weak record in this case results in remand instead of a decision on the merits. 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…
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Pre-Opinion Settlement Disclosed after Publication of Opinion Requires Vacation of Opinion and Dismissal for Mootness
On June 29, the Ninth Circuit reversed a preliminary injunction order that prohibited National Beverage Corporation “from selling or marketing its line of ‘Freek’ energy drinks in their current containers or containers confusingly similar to” the trade dress of plaintiff Hansen Beverage Company’s “Monster” energy drink. 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…
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Putative Class Members Lack Standing to Appeal after Dismissal of Uncertified Class Action
The appeal in Employers-Teamsters v. Watson Pharmaceuticals, case no. 04-56791 (9th Cir. August 16, 200) was from four consolidated actions brought by investment advisor Anchor Capital against Watson Pharmaceuticals, alleging violation of the securities laws. The trial court considered motions for the appointment of lead plaintiff pursuant to the Private Securities Litigation Reform Act (the “PSLRA”), 15 U.S.C. § 78u-4(a), including a motion from the appellants. Anchor Capital was appointed lead plaintiff. After Watson Pharmaceuticals successfully moved to dismiss on Rule 9(b) grounds (insufficiently specific pleading of fraud, Fed. R. Civ. P. 9(b)), the court granted Anchor Capital’s request to dismiss all four actions with prejudice. The appellants never filed…
- Appellate Procedure, California Procedure, California Supreme Court, Federal Courts, Federal Procedure, Ninth Circuit, Standard of Review
Adult Bookstore Case Results in Certified Question to State Supreme Court
Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.” Most lawyers are already familiar with this procedure, at least in principle. 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…
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Undue Delay Precludes Coram Nobis Relief Even Where No Prejudice Results from Delay
A petitioner for writ of coram nobis must satisfy a four-part test, one element of which is that “valid reasons exist for not attacking the conviction earlier.” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). In United States v. Riedl, case no. 06-10424 (August 6, 2007), the petitioner argued to the Ninth Circuit that even if the court did not accept her reasons for delay as valid, the delay could not preclude relief unless the government asserted laches, i.e., that it would suffer prejudice from a grant of the writ in light of the delay. The Ninth Circuit rejects the argument, finding that undue delay precludes relief…
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More on the Restyled Federal Rules of Civil Procedure
University of Arkansas School of Law Assistant Professor Scott Dodson has a guest post at Civil Procedure Prof Blog about the pending “restyled” Federal Rules of Civil Procedure. In addition to the article by Professor Dorf that I posted about last week, he links to a second article, in which he says the author “argues that the restyling creates more problems than solutions” and “illustrates the problems with a few key examples, including Rule 65.” Visit his post for the link. 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…
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Procedural Maneuvering at its Finest and the Double Duty Judge
The Ninth Circuit’s decision in Vacation Village, Inc. v. Clark County, Nevada, case no. 05-16173 (July 23, 2007) delivers a “two-fer” of “bloggable” items. 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…
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The Ninth Circuit’s Reversion to 11-Judge En Banc Panels
The Ninth Circuit reverted to 11-judge en banc panels at the beginning of this month after a brief experiment with 15-judge panels. This short article at Law.com provides some limited background on the move, including comment from one circuit judge: “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…
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FRCP Amendments Not So “Stylistic” After All?
Back on May 14th, I noted that proposed amendments to the Federal Rules of Civil Procedure had been transmitted to Congress and noted that the vast majority of changes were intended to be “stylistic” only, i.e., not making any substantive change. I provided some links to advisory committee reports and other explanatory information. 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
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Grandstanding Does Not Equal Intent
I watched the movie Minority Report last night. It’s about a “precrime” department of the Washington, D.C. police department around 50 years in the future that, through the use of visions recorded from three gifted “precognitive” individuals, arrests persons for future murders they were going to commit. The murder rate in D.C. drops to zero. I recommend the movie, especially if you’re a sci-fi fan. 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…
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Ninth Circuit Rules Amendments Available
Amendments to the Ninth Circuit rules went into effect on July 1, 2007. They are available for download as a PDF from the Ninth Circuit Court of Appeals website. It’s a handy file, with a chart of the changes and revised or added language clearly highlighted.
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Follow-Up to “A Conundrum on Federal Court Determinations of State Law Issues”
In this post last week, I noted that Howard Bashman (of the How Appealing blog) and I had nearly simultaneously (and quite independently) come up with similar questions on federal court determinations of state law. I had pondered the question as a “hypo” for my legal research students; Bashman asked it in the context of a recent Third Circuit opinion, Jaworowski v. Ciasulli, case no. 05-1423 (June 18, 2007), in which the district court had followed a 19-year-old Third Circuit decision predicting how the state’s high court would decide the state law question. On appeal, the Third Circuit reconsidered the state law question and decided that the state’s highest court…
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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.…