Circuit Splits

70 Articles On the Practice of Appellate Law

A lot has been written about the practice of appellate law. From David Frederick's "Art of Oral Advocacy" to Chief Judge Alex Kozinski's "The Wrong Stuff," the following articles offer a broad range of commentary on the art, science, practice, or whatever you want to call it, of appellate law. But this list is by no means comprehensive, so please feel free to recommend additional articles by leaving a comment below.

Articles Published in Law Reviews, Bar Journals, Legal Periodicals, & CLE Papers

1. American Academy of Appellate Lawyers, Statements on the Functions and Future of Appellate Lawyers, 8 App. Prac. & Process 1 (2006) (PDF)
2. Axelrad, David M., Paint Me a Picture: A Conversation on the Appellate Process, Appellate Advocacy (Nov. 2009) (PDF)
3. Baldock, Robert R. et al., Transcript, What Appellate Advocates Seek from Appellate Judges and what Appellate Judges Seek from Appellate Advocates, 31 N.M. L. Rev. 265 (2001) (PDF)
4. Baker, Thomas E., An Annotated Bibliography on Federal Appellate Practice and Procedure, 10 J. App. Prac. & Process 13 (2009)
5. Barksdale, Rhesa Hawkins, The Role of Civility in Appellate Advocacy, 50 S.C. L. Rev. 573 (1999)
6. Baruch, Chad, State Bar of Texas, Improving Legal Writing in Appeals, 22nd Annual Advanced Civil Appellate Practice Course (Sept. 4-5, 2008) (PDF)
7. Bishop, Timothy S., Oral Argument in the Roberts Court, 35 Litig. 1 (ABA Winter 2009) (PDF)
8. Bishop, Timothy S. et al., Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court, 34 Litig. (ABA Winter 2008) (PDF)
9. Bishop, Timohty S. & Sarles, Jeffrey W., Petitioning the United States Supreme Court for Certiorari: A Primer, Appellate.net (ABA 1994) (web)
10. Blakley, Alan F., Ten Ways To Lose An Appeal, Part I, 53 Fed. Law 18 (Oct. 2006)
11. Cappalli, Richard B., Improving Appellate Opinions, 83 Judicature 286 (2000) (web)
12. Chestek, Kenneth D., The Plot Thickens: The Appellate Brief as Story (Dec. 18, 2007) (SSRN)
13. Cole, Jeffrey, An Interview With Steve Shapiro: The Art of Appellate Advocacy, 2 The Circuit Rider 3 (PDF)
14. Cole, Jeffrey, An Interview With Steve Shapiro, 23 Litig. (ABA Winter 1997) (web)
15. Dwyer, Stephen J. et al., How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines From One Judge and Two Lawyers, 31 Seattle Univ. L. Rev. 417 (2008) (PDF)
16. Elligett, Jr., Raymond T. & Scheb, John M., Stating the Case and Facts: Foundation of the Appellate Brief, 32 Stetson L. Rev. 415 (2003) (PDF)*
17. Fisher, Jeffrey, A Supreme Court Clinic’s Place in the Supreme Court Bar, Stan. Pub. L. Working Paper No. 1921430 (Jan. 25, 2012) (SSRN)
18. Frey, Andrew L., Amici Curiae: Friends of the Court or Nuisance?, 33 Litig. 1 (Fall 2006) (PDF)
19. Frey, Andrew L. & Englert, Roy, How to Write a Good Appellate Brief, Appellate.net (ABA 1994) (web)
20. Fronk, Casey R., The Cost of Judicial Citation: An Empirical Investigation of Citation Practices in the Federal Appellate Courts, 2010 U. Ill. J.L. Tech. & Pol'y 51 (2010).
21. Geller, Kenneth S. et al., Opposing Review: The Art of Finding "Uncertworthiness", 1 Inside Litig. 27 (Mar. 1987) (web)
22. Ginsburg, Ruth Bader, Remarks on Appellate Advocacy, 50 S. C. L. Rev. 567 (1999)
23. Godbold, John, Twenty Pages and Twenty Minutes, 15 Litig. 3 (Spring 1989) (PDF)
24. Greaney, John M. Power of the Pen, 38 Trial 48 (July 2002) (web)
25. Hamilton, Clyde H., Effective Appellate Brief Writing, 50 S. C. L. Rev. 581 (1999)
26. Harlan, John M., What Part Does the Oral Argument Play in the Conduct of an Appeal?, 41 Cornell Q. 6 (1956) (PDF)
27. Hatchett, Joseph W. & Telfer, Robert J., III, The Importance of Appellate Oral Argument, 33 Stetson L. Rev. 139 (2003) (PDF)
28. Hawkins, Michael Daly, Your Worst Nightmare: Things That Can Go Bump on Appeal, 22 Litig. 3 (Spring1996)
29. Herr, David F. & Gilbertson, Cynthia F., Improving the Odds on Appeal, 60 Bench & B. Minn. 17 (2003) (PDF)
30. Higginbotham, Patrick E., Book Review, Narratives Drawn from Rich Experience: Mayer Brown's Federal Appellate Practice, 10 J. App. Prac. & Process 401 (2009)
31. Kozinski, Alex, How You Too Can Lose Your Appeal, Montana Lawyer (Oct. 23, 1997) (web)
32. Kozinski, Alex, The Wrong Stuff, 1992 BYU L. Rev. 325 (1992) (PDF)
33. Lewis, David, Common Knowledge about Appellate Briefs: True or False?, 6 J. App. Prac. & Process 331 (2004) (web)
34. Lewis, David, If You Have Seen One Circuit, Have You Seen Them All? A Comparison of the Advocacy Preferences of Three Federal Circuit Courts Of Appeal, 83 Denv. U. L. Rev. 893 (2006) (PDF)
35. Lewis, David, 138 Appellate Judges Can't be Wrong, The Champion 10 (Aug. 2007) (PDF)
36. Lewis, David, What's the Difference?: A Comparison of the Advocacy Preferences of State and Federal Appellate Judges, 7 J. App. Prac. & Process 335 (2005)
37. Lewis, David, Survey Sheds Light on Appellate Brief-Writing, 32 Mass. Lawyer's Weekly 495 (Nov. 3, 2003)
38. Lewis, David, Appellate Judge Survey Offers Insight into Effective Advocacy, 14 N.H. B. News 13 (Sept. 5, 2003) (web)
39. Llewellyn, Karl N., A Lecture On Appellate Advocacy, 7 J. App. Prac. & Process 173 (2005) (web)
40. Markman, Stuart C., Responding to Appellate Lawyers Who Cross the Line, 32 Stetson L. Rev. 425 (2003) (PDF)
41. Mauro, Tony, Courtside, Court Aces, 26 Legal Times (July 14, 2003) (PDF)
42. Merling, Joseph C., Advocacy at Its Best: The Views of Appellate Staff Attorneys, 8 J. App. Prac. & Process 301 (2006) (web)
43. Miner, Roger J., Professional Responsibility in Appellate Practice: A View from the Bench, 19 Pace L. Rev. 323 (1999) (PDF)
44. Pregerson, Harry & Painter-Thorne, Suzianne D., The Seven Virtues of Appellate Brief Writing: An Update from the Bench, 38 Sw. L. Rev. 221 (2008) (PDF)
45. Pregerson, Harry, The Seven Sins of Appellate Brief Writing and Other Transgressions, 34 UCLA L. Rev. 431 (1986)
46. Pierce, Lawrence W. Pierce, Appellate Advocacy: Some Reflections from the Bench, 61 Fordham L. Rev. 829 (1993) (PDF)
47. Posner, Richard, Convincing a Federal Court of Appeals, 25 Litig. 3 (Winter 1999) (Word) (web)
48. Rehnquist, William H., From Webster to Word-Processing: The Ascendance of the Appellate Brief, 1 J. App. Prac. & Process 1 (1999)*
49. Rehnquist, William H., Oral Advocacy, 27 S. Tex. L. Rev. 289 (1986)
50. Rehnquist, William H., Oral Advocacy: A Disappearing Art, 35 Mercer L. Rev. 1017 (1984)
51. Richmond, Douglas R., Appellate Ethics: Truth, Criticism, and Consequences, 23 Rev. Litig. 301 (Spring 2004)
52. Rychlak, Ronald J., Effective Appellate Advocacy: Tips from the Teams, 66 Miss. L.J. 527 (1997) (SSRN)
53. Sasso, Gary L., Appellate Oral Argument, 20 Litig. 27 (Summer 1997) (PDF)
54. Schroeder, James C. & Dow, Jr., Robert M., Arguing for Changes in the Law, 25 Litig. 2 (Winter 1999) (web)
55. Shapiro, Stephen M., Readable Briefs for Busy Judges, ABA Appellate Practice J. (Summer 2010) (PDF)
56. Shapiro, Stephen M., Questions, Answers, and Prepared Remarks, 15 Litig. 33 (Spring 1989) (PDF)
57. Shapiro, Stephen M., Speech, Oral Argument in the Supreme Court: The Felt Necessities of the Time, Appellate.net (Mayer, Brown & Platt 1999) (web)
58. Shapiro, Stephen M., Certiorari Practice: The Supreme Court's Shrinking Docket, Appellate.com (Mayer, Brown & Platt 1999) (web)
59. Shepherd, John H., Making Appellate Advocacy More Effective, 74 Mich. B.J. 32 (Jan. 1995) (PDF)
60. Spence, Gerry, Beyond Shouting, 81 ABA J. 68 (1995) (Google Books)
61. Sundquist, Matthew L., Learned in Litigation: Former Solicitors General in the Supreme Court Bar, 5 Charleston L. Rev. 59 (2010) (PDF)
62. Tchen, Christina M., Still Grateful after All These Years, 5 J. App. Prac. & Process 157 (2003) (web)
63. Tiscione, Kristen K., The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 L. Writing 257 (2002) (PDF)
64. Tobias, Carl, The Federal Appeals Courts at Century’s End, 34 U.C. Davis L. Rev. 549 (2000) (PDF)
65. Walbolt, Sylvia H. & Allen, Matthew D., The Ten Commandments of Writing an Effective Appellate Brief (PDF)
66. Walbot, Sylvia H. & Lang, Jr., Joseph H., Amicus Briefs Revisited, 31 Stetson L. Rev. 171 (2003) (PDF)
67. Wald, Patricia M., Essay, 19 Times from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7 (1999) (PDF)
68. Wiener, Jr., Jacques L., Ruminations from the Bench: Brief Writing and Oral Argument in the Fifth Circuit, 70 Tul. L. Rev. 187 (1995) 
69. Wilson, Charles R., How Opinions Are Developed in the United States Court of Appeals, 32 Stetson L. Rev. 247 (2003) (PDF)
70. Winkelman, Nancy, "Just a Brief Writer"?, 29 Litig. 50 (Summer 2003) (PDF)

 

Does the 1st Amendment Permit Viewpoint-Based Restrictions on School-Sponsored Speech?

Last month we looked at a circuit split arising from the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, in which the Court recognized a public school’s right to restrict “school-sponsored speech” without offending the First Amendment where the restriction is reasonably related to a legitimate educational concern. (You can read the post here.) As a result, schools have broad discretion over the curriculum presented to students. 

Last week in Ward v. Polite, the Sixth Circuit found that "the First Amendment does not permit educators to invoke curriculum ‘as a pretext for punishing [a] student for her . . . religion’” because such speech “discriminating against the religious views of a student is not a legitimate end of a public school.” Nos. 10-2100/2145 (6th Cir. Jan. 27, 2012). This position appears to be consistent with those taken by the Ninth and Eleventh Circuits in the following circuit split:

A split exists among the Circuits on the question of whether Hazelwood requires viewpoint neutrality. Compare Fleming v. Jefferson County Sch. Dist., 298 F.3d918, 928 (10th Cir.2002) ("We hold . . . that Hazelwood does not require educators' restrictions on school-sponsored speech to be viewpoint neutral.") and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) ("[T]he Court in Kuhlmeier did not require that school regulation of school-sponsored speech to be viewpoint neutral.") with Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 830 (9th Cir.1991) ("Because their decision to limit access, whether wise or unwise, is reasonable and not an effort at viewpoint discrimination, the school district did not violate the first amendment in declining to publish Planned Parenthood's advertisements.") and Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) ("Hazelwood . . . does not alter the test for reasonableness in a nonpublic forum such as a school but rather provides the context in which the reasonableness of regulations should be considered. . . . [T]here is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker's views.") Because we conclude that Hazelwood does not apply in this case, we do not consider whether Hazelwood requires viewpoint neutrality.

Chiras v. Miller, 432 F. 3d 606, 615 n.27 (5th Cir. 2005). You may recall a similar situation in Keeton v. Anderson-Wiley, No. 10-13925 (11th Cir. Dec. 16, 2011), in which the Eleventh Circuit upheld the university’s action taken against a student counselor who refused to comply with the purported curriculum on religious grounds. It looks like Ward  and Keeton are at odds with each other, doesn't it? Not so fast, says the Sixth Circuit: “there is less tension, or for that matter even disagreement, between the two cases than initially meets the eye.”

For starters, according to the Sixth Circuit, “[t]he procedural settings of the two cases differ.” Second, “[t]he two claimants’ theories of constitutional protection also are miles apart.” Third, whereas “[i]n Keeton, the district court made preliminary fact findings after holding a[n evidentiary] hearing,” in Ward, there were “no trial-level fact findings” and Ward received “the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.” Fourth and finally, the Sixth Circuit draws a sharp factual distinction in Ward:

Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor’s values on the client in anything but an even-handed manner. Not so here, as the code of ethics, counseling norms, even the university’s own practices, seem to permit the one thing Ward sought [but was denied]: a referral.

The Sixth Circuit does, however, acknowledge that the two decisions “share the same essential framework and reasoning,” explaining,

They both apply Hazelwood to curricular speech at the university level, and they both show that the even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment's free-speech and free-exercise protections. Both decisions also are consistent with Christian Legal Society, which considered whether a Christian organization at a law school could insist that its members adhere to certain faith-based codes of conduct. The Court held that the law school's anti­discrimination policy, requiring registered student organizations to accept all comers, did not violate the First Amendment on its face, yet it remanded the case to determine whether the school selectively enforced the policy against some organizations but not others. While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.

Conflict Over When a Cause of Action Becomes a Protected "Property Interest"

The Fourteenth Amendment declares that “[n]o state shall . . . deprive any person of life, liberty, or property without due process of law.” According to the Supreme Court, "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U. S. 545, 552 (1965)). This means that before state officials may take away an individual's interest in their property, the Due Process Clause requires "some form of hearing" to allow the individual to express their opposition to such deprivation. See id.

But what type of "property" did members of Congress have in mind when they drafted the Due Process Clause of the Fourteenth Amendment? The late Justice Blackmun answered this question back in 1982: "The hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except 'for cause.'" Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982). The Court's opinion in Logan identified a number of intangible property interests protected by the Due Process Clause, including an individual's interest in

• a horse trainer's license, Barry v. Barchi, 443 U.S. 55 (1979);
• utility service, Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978);
• disability benefits, Mathews v. Eldridge, 424 U.S. 319 (1976); 
• a high school education, Goss v. Lopez, 419 U.S. 565 (1975);
• government employment, Connell v. Higginbotham, 403 U.S. 207 (1971);
• a driver's license, Bell v. Burson, 402 U.S. 535 (1971); and
• welfare benefits, Goldberg v. Kelly, 397 U.S. 254 (1970).

Should an individual's right to bring a particular cause of action be added to this list? If so, at what stage in the litigation does the property interest arise? (What if the defendant is AT&T Corp.?) In a controversial decision issued in late December 2011, the Ninth Circuit noted the following intra-circuit split over this issue:

The parties disagree as to when a cause of action becomes a property right protected by the due process clause. Compare Lujan v. G & G Fire Sprinklers, 532 U.S. 189, 195 (2001) ("assum[ing], without deciding," that a "claim for payment under [specified] contracts" was a property interest), and Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) ("[A] cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause"), with Lyon v. Agusta, 252 F.3d 1078, 1086 (9th Cir. 2001) (holding that "a party's property right in any cause of action does not vest until a final unreviewable judgment is obtained.") (citing Grimesy v. Huff, 876 F.2d 738, 743-44 (9th Cir. 1989)), and Fields v. Legacy Health System, 413 F.3d 943, 956 (9th Cir. 2005) (same). We need not resolve this issue because § 802 provides sufficient process.

NSA Telecomms. Records Litig. v. AT&T Corp., 2011 U.S. App. LEXIS 25949, at *30-31 n.4 (9th Cir. Dec. 29, 2011) (parallel citations omitted).

 

Does the Constitution Create a Right to Companionship?

Does the Constitution provide a right to companionship with one’s spouse? As a federal court in Idaho pointed out last Friday, courts have come up with at least three different answers to this question:

• No. A husband does not have a constitutional right to association with his wife. See Bach's in Niehus v. Liberio, 973 F.2d 526, 534 (7th Cir.1992) (Posner, J.); Norcross v. Town of Hammonton, Civil No. 04-2536 (RBK) (D.N.J. July 13, 2006) (unpublished). 

• Yes. “[A] husband or wife should be able to claim violations of his or her own constitutional rights under § 1983 for unlawfully, government-imposed injuries to a spouse that have a devastating impact on their marriage.” Pahle v. Colebrookdale Township, 227 F. Supp. 2d 361, 381 (E.D. Pa. 2002); Brodlic v. City of Lebanon, Case No. 4:04-CV-978 (M.D. Pa. Sept. 15, 2005) (permitting consortium claim under § 1983).

• Maybe. “[T]he death of a family member will not ordinarily give those still alive a cognizable due process claim under section 1983” unless the defendants’ actions were “specifically aimed at ending or affecting [one family member’s] relationship with [another family member].” Soto v Flores, 103 F.3d 1056, 1062 (1st Cir. 1997).

After identifying the three paths taken by the courts mentioned above, the Idaho district court reached the following conclusion,

This analysis shows that courts have at least three different approaches to the issue, and the parties have not cited any binding precedent from the Ninth Circuit or the Supreme Court. Given this disarray in the law over the constitutional issue, there was no "clearly established" constitutional right to the companionship of a spouse at the time Cindy Bach passed away. Accordingly, the defendants have qualified immunity and Bach’s §1983 claim must be dismissed. 

Bach v. Idaho State Bd. of Med., Case No. 4:CV 10-548-BLW (D. Idaho Jan. 20, 2012).

Why the GPS-Tracking Case is Just the Beginning for the Supreme Court

So far, the Supreme Court’s October 2011 term has lived up to the hype. Yesterday, the Supreme Court issued its highly anticipated opinion in the GPS-Tracking Case, in which it unanimously held “that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” under the Fourth Amendment. Although the Court avoided directly addressing the issue, this may mean that law enforcement must now obtain a search warrant before installing a GPS-tracking device on a suspect’s car. You can read the full opinion on the Supreme Court's website here.

It's worth noting that when the Court first surveyed the privacy landscape some forty years ago in Katz v. U.S., telephones were connected by wires and global positioning required a map and compass. Today, however, modern technology allows us to connect by "texting," "tweeting," or "facebooking." And finding our precise latitude and longitude on the globe is a matter of simply turning on our cell phones.

The reasonable expectation of privacy test is, not suprisingly, beginning to show signs of aging. As emerging technologies continue to reshape the nature and volume of personal information we share with others, expect to see courts continue to struggle with hitting the moving target that is our "reasonable expectation of privacy." Take, for example, the following circuit conflict over the warrantless search of cell phones, which was recently identified by a federal court in Oregon:

Compare, e.g., United States v. Hill, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011) (upholding warrantless search of iPhone photos incident to arrest); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (upholding warrantless search of cell phone incident to arrest); United States v. Wurie, 612 F.Supp.2d 104, 109-111 (D. Mass. 2009) (same); People v. Diaz, 2011 WL 6158 (Cal. Jan 3, 2011), (same) with United States v. Quintana, 594 F.Supp.2d 1291, 1298-99 (M.D. Fla. 2009) (holding warrantless search of cell phone not justified as search incident to arrest); United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007) (same); United States v. Lasalle, 2007 WL 1390820 (D.Hawai'i May 9, 2007) (finding warrantless cell phone search invalid where it was not clear that phone was on defendant's person and search not contemporaneous with arrest); State v. Smith, 920 N.E. 2d 949 (Ohio 2009) (suppressing warrantless cell phone search). . . . 

Schlossberg v. Solesbee, No. 10-6014-TC, at n.2 (D. Or. Jan. 13, 2012).

Related Reading

• Julia Angwin & Scott Thurm, Judges Weigh Phone Tracking, WSJ.com (Nov. 9, 2011) (available here).

• Bill Mears, Justices rule against police, say GPS surveillance requires search warrant, CNN.com (Jan. 23, 2012) (available here).

• Adam Liptak, Justices Say GPS Tracker Violated Privacy Rights, NY Times (Jan, 23, 2012) (available here).

• Mike Sacks, Warrantless GPS Tracking Unconstitutional, Supreme Court Rules, HuffingtonPost.com (Jan. 23, 2012) (available here).

(Image courtesy of WSJ.com).

Common Parenthetical Pitfalls

Justice Ginsburg once wrote that one of the items on her “check list for a first-rate brief” is the liberal use of parentheticals (no pun intended) “offering the readers a clue why they are there” by “show[ing] the relevance of the citation.” Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567, 568 (1999). Senior Judge Leonard Garth of the Third Circuit expressed an even deeper appreciation for the parenthetical when he proclaimed, “The single, easiest way to make a good brief better is by the judicious use of parentheticals following case citations.” Leonard I. Garth, How to Appeal to an Appellate Judge, 21 Litig. 20, 24-66 (Fall 1994). 

So how do you cure a poorly drafted parenthetical? This first thing to do is to learn how to diagnose it. For Part I of my three-part series on the use of parentheticals in legal writing, check out the Legal Skills Prof Blog here.

 

Does the FMLA Provide a Cause of Action Against Public Employees?

In 1993, President Clinton signed into law the Family and Medical Leave Act (FMLA). For a brief summary of this legislation, fast forward to 3:54 and watch the first twenty seconds or so of the following video:

The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" under the FMLA, included those mentioned by President Clinton in the video above. 29 U.S.C. § 2615(a)(1) (emphasis added). As a federal court in Oklahoma explained earlier this week, the FMLA provides two rights of action against employers: one for “interference,” and one for “retaliation.” Jeffers v. Redlands Cmty. College Bd. of Regents, No. CIV-11-1237- HE, 2012 U.S. Dist. LEXIS 5562, at *5 n.3 (D. Okla. Jan. 18, 2012).

The FMLA defines the term “employer” as meaning

any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year

29 U.S.C. § 2611(4)(A)(i). Subsection (A)(iii) notes that the term “employer” includes “public agencies.” The litigants in this case conceded that the definition of "employers" with regard to private employers covered employees as well. Does this, by logical extension, mean that employees of public agencies, like their counterparts in the private sector, may also be sued under the FMLA?

As the court in Jeffers recently explained, a circuit split has emerged over this question: "There is a split among the courts of appeal on this issue. Compare Mitchell v. Chapman, 343 F.3d 811, 832 (6th Cir. 2003), and Wascura v. Carver, 169 F.3d 683, 687 (11th Cir. 1999) (holding individual public employees are not 'employers' under the FMLA), with Modica v. Taylor, 465 F.3d 174, 184-86 (5th Cir. 2006), and Darby v. Bratch, 287 F.3d 673, 680-81 (8th Cir. 2002) (holding the opposite)." Jeffers, 2012 U.S. Dist. LEXIS 5562, at *5–6.

The court continued,

The Tenth Circuit has not yet squarely addressed it.The court concludes the interpretation by the Fifth and Eighth Circuits is more persuasive as to the reach of the statute, principally because the statute's definition of "employer" is inclusive and subsections (ii) and (iii) should be read together. Therefore, plaintiff has stated an FMLA claim against defendant Andrade.

Id. at *7.

In the News

For the latest on circuit splits in the news, follow the links below:

• James Vicini, The Supreme Court won't hear FINRA immunity case, Thomson Reuters News & Insights (Jan. 17, 2012).

• Brant Phillips & Shayne Clinton, A split among the circuits when analyzing complaints under SLUSA?, Thomson Reuters News & Insights (Jan. 18, 2012).

• Ten Anticipated Evidence Developments For 2012, FederalEvidence.com (Jan. 4, 2012).

• Rick Sanders, Burning Down the Dance-Hall: UMG v. Veoh Clarifies the DMCA, AaronSandersLaw.com (Jan. 17, 2012).

• Timothy L. Allsup, Federal Circuit Splits on Patent Infringement Obviousness Analysis in a Preliminary Injunction, NCJolt.org (Jan. 14, 2012).

 

Conflict Over Underground Water Injection Percolates Through the Circuits

Today's post examines an unrecognized circuit split (and perhaps a conflict within a circuit as well) involving the Safe Drinking Water Act (SDWA), which regulates underground injections. The SDWA created the Underground Injection Control Program (UIC Program) to establish and enforce regulations for improper underground injections.

"Underground injection" refers to a particular type of technology used to inject fluids into porous, underground rock formations. See EPA Report, Safe Drinking Water Act Enforcement. The SDWA defines this term as meaning “the subsurface emplacement of fluids by well injection.” 42 U.S.C § 300h(d)(1)(A). Building on the provisions of the SDWA, these EPA regulations prohibit the "movement of fluid" into underground sources of drinking water absent a permit if the fluid contains any contaminent. See 40 C.F.R. § 144.12(a). The EPA's UIC Program establishes five classes of underground-injection wells for determining whether a permit is required before moving a particular fluid into the ground. (A summary of these classes can be found in a "pocket guide" published on the EPA's website here.)

An intercircuit split has emerged within the Eleventh Circuit over the scope of the phrase "fluid movement." For example, in Miami-Dade County v. EPA, the Eleventh Circuit adopted the "no fluid movement" standard for a Class I injection, explaining, “Under this ‘no fluid movement’ or the ‘no migration’ standard, any evidence ‘indicat[ing] the [unauthorized] movement of any contaminant into a [an underground source of drinking water]’ requires ‘the Director [to] prescribe such additional requirements . . . as are necessary to prevent such movement.” 529 F.3d 1049 (11th Cir. 2008). In Legal Environmental Assistance Foundation, Inc. v. EPA, however, the court held that for purposes of a Class V injection involving hyrdaulic fracturing, the term "injection" refers to the “forc[ing of] a liquid into passage, cavity, or tissue.” 18 F.3d 1467 (11th Cir. 1997) [hereafter "LEAF"].

District courts outside of the Eleventh Circuit have also reached divergent results on this issue. See, e.g., Incorporated Village of Garden City v. Genseco, Inc., 596 F. Supp. 2d 587 (E.D.N.Y. 2009) (construing "injection activity" to require some affirmative use of force to inject or channel fluid prohibited by the SDWA into an underground water source); Goliad Cnty. v. Uranium Energy Corp., No. V-08-18, 2009 WL 1586688, at *17–19 (S.D. Tex. June 5, 2009) (mem. op.) (citing LEAF and Genseco in support of its conclusion that a "subsequent [well] owner's mere failure to close the well was insufficient as a matter of law to allow the SDWA claim to stand").

These decisions simply do not align. Miami-Dade, for example, applied the no-fluid-movement standard to wells in Classes I, II, and III, which appears to contradict the standard set forth in Goliad requiring “knowledge” of the injection or “some level of intent” to inject proscribed fluid into the ground. So where do the federal courts stand on what action (or inaction) is required to hold an individual liable for violating the SDWA’s UIC provisions?

As American industries continue to explore for alternative forms of energy, issues related to underground injections will become more pervasive. In turn, the SDWA and EPA regulations will continue to become increasingly relevant as local communities try to protect their drinking water. Based on the early cases discussed above, this issue will likley blossom into a widespread circuit split over time.

S.E.E.

(Image courtesy of checksandbalancesproject.org) 

Courts Split Over Copyright Law's "First Sale Doctrine"

The “first sale doctrine” had its genesis in a 1908 Supreme Court case in which the Court held that owners of copyrighted work have no control over the resale price of their work after it has entered the stream of commerce. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350 (1908). This holding is now reflected in 17 U.S.C. § 109(a), which provides that “the owner of a particular copy . . . lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy . . . .” (emphasis added).

Another copyright law, however, makes it unlawful to import foreign-made copies of copyrighted work into the U.S. without the copyright owner's approval. See 17 U.S.C. § 602(a). In 2011’s John Wiley & Sons, Inc. v. Kirtsaeng, Judge Garvan Murtha penned a dissent that highlights the following circuit split over whether § 109(a) applies to foreign-manufactured goods imported into the U.S.:

§ 109(a) requires (1) the person claiming protection be the owner of the copy, and (2) the copy was "lawfully made under this title." 17 U.S.C. § 109(a). Courts have split over the meaning of "lawfully made under this title," with some holding it means "legally manufactured... within the United States," CBS v. Scorpio Music Distrib., 569 F. Supp. 47, 49 (E.D. Pa. 1983), aff'd without opinion, 738 F.2d 424 (3d Cir. 1984); see also Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982, 987 (9th Cir. 2008), aff'd by an equally divided court 131 S. Ct. 565 (2010), and others "confess[ing] some uneasiness with this construction" and suggesting "lawfully made under this title" refers not to the place a copy is manufactured but to the lawfulness of its manufacture as a function of U.S. copyright law. Sebastian Int'l, Inc. v. Consumer Contacts (PTY) Ltd., 847 F.2d 1093, 1098 n.1 (3rd Cir. 1988).

No. 09-4896-cv (2d Cir. Aug. 15, 2011). The dissent continues, "Here, the district court held — and the majority affirms — the doctrine does not apply to imported copies that were made abroad because § 109(a) applies only to copies that are 'lawfully made under this title,' and that means physically manufactured in the United States." See John Wiley & Sons, Inc. v. Kirtsaeng, No. 08 Civ 7834, 2009 WL 3364037, at *9 (S.D.N.Y. Oct. 19, 2009).

I think the takeaway here is, until the Supreme Court resolves this issue, you would be wise to think twice before purchasing that bootleg copy of Rush Hour 3 on eBay. Actually, you would be wise to think twice before purchasing a copy of Rush Hour 3, period.

New Scholarship

Here is this week’s collection of recently published scholarship discussing various circuit splits:

1.    Theresa (Maxi) Adamski, The Alien Tort Claims Act and Corporate Liability: A Threat to the United States' International Relations, 34 Fordham Int'l L.J. 1502 (2011).

Abstract

An obscure sentence, penned by the first US Congress in 1789, has found its way to the forefront of human rights litigation, and is being utilized against multinational corporations. The statute, the Alien Tort Claims Act (“ATCA”), wielded by plaintiffs who have suffered human rights violations, has managed to pull multinational corporate giants, such as Coca-Cola Company, Yahoo!, Unocal, and ExxonMobil into US courts for alleged human rights violations committed on non-US soil with little nexus to the United States. While human rights plaintiffs have embraced the ATCA with increasing frequency and enthusiasm, businesses are “sounding the alarm” and painting nightmare scenarios of high punitive damages, negative economic impact, and international relations consequences.

 ATCA litigation has been concentrated in the US Courts of Appeals for the Second, Ninth, and Eleventh Circuits. Initially, all three circuits, applying different standards of proof, recognized the possibility of a multinational corporate defendant’s liability for violations of a plaintiff’s human rights. In 2010, however, the Second Circuit in Kiobel v. Royal Dutch Petroleum Company ruled that human rights plaintiffs could no longer bring claims of corporate liability under the ATCA, thereby closing the circuit’s door to such cases.

This Note examines the newly-created circuit split between the Second Circuit and the Ninth, and Eleventh Circuits regarding corporate liability. Part I introduces the ATCA, chronicling its transformation from a short provision in the Judiciary Act of 1789 to the weapon of choice employed against international corporations for alleged human rights violations. Part II focuses on the newly-created circuit split, identifying important case law and the current standing of ATCA human rights corporate liability in all three circuits. Emphasis is placed upon the international implications of and reactions to these decisions. Finally, Part III concentrates on the international implications of the split and advances the argument that the Second Circuit correctly decided Kiobel in light of the ATCA’s purpose and the potential impact that continued ATCA litigation poses to US external relations.

 2.    David Kelch, Help Me Help You: An Answer to the Circuit Split Over the Delegation of Post-Sentence Judicial Authority to Probation Officers, 116 Penn. St. L. Rev. 553 (2012).

Abstract

Our criminal system routinely deals with such matters as the life and death and intertwined fates of criminals and their victims. Other than lawyers, judges, and the defendants and victims themselves, there is perhaps no one more intimate with the application of criminal justice than the probation officer. These “eyes and ears of the court” are given considerable responsibility in two phases of the criminal justice process. First, they are utilized between conviction and sentencing to conduct a pre-sentence investigation that, almost exclusively, is relied on by the court to determine the appropriate sentence for the defendant. Next, the probation officer is responsible, among other things, for “aid[ing] [the] probationer . . . to bring about improvements in his conduct and condition.” Other than the judges and juries, is there anyone so bound up with the fate of defendants than the probation officer?

Currently, a split among the circuit courts of appeals exists regarding the appropriate degree of delegable “judicial authority” to a probation officer during the post-sentence time-period. Probation officers could be given limitless discretion to modify the offender’s sentence in light of changing circumstances. Conversely, officers could be given no authority to modify, change, or adapt the sentence, leaving no option but to apply for court-ordered modification. Of course, as this Comment proposes, the proper amount of authority that should be delegated lies between these extremes.

3.    Angela Galloway, A 'Narrow Exception' Run Amok: How Courts have Misconstrued Employee-Rights Laws’ Exclusion of 'Policymaking' Appointees, 86 Wash. L. Rev. 875 (2011), available at http://ssrn.com/abstract=1980438.

Abstract

The civil rights and workplace protections afforded some government workers vary vastly nationwide because federal circuit courts disagree over how to interpret an exemption common to five landmark employment statutes. Each statute defines “employee” for its purposes to exclude politicians and certain categories of politicians’ appointees — including government employees appointed by elected officials to serve at “the policymaking level.” Neither Congress nor the United States Supreme Court has defined who belongs to the “policymaking-level” class. Consequently, lower federal courts across the country have adopted their own standards to fill the gap, creating a wide circuit split. At stake in this employment law vagary are basic worker rights guaranteed by major federal statutes. The U.S. Supreme Court or Congress should articulate a lucid definition for the exception for appointees on the “policymaking level” that honors Congress’s intent for a narrow exception: the exemption should apply only to positions characterized by both a direct working relationship with the appointer and an explicit duty to make substantive policy.

4.    Donald S. Bernstein, Brian Resnick, & Hilary Dengel, Thirty-Seventh Annual Lawrence P. King and Charles Seligson Workshop on Bankruptcy and Business Reorganization (July 22, 2011), The Logic and Limits of Credit Bidding by Secured Creditors Under the Bankruptcy Code (Sept. 2011), available at http://ssrn.com/abstract=1975932.

Abstract

Outside of bankruptcy, the right of a secured creditor to “credit bid” allows the secured creditor to compete with cash bids in foreclosure to assure that the secured creditor’s collateral is not sold for less than the secured creditor thinks it is worth. In reorganization cases under chapter 11 of the Bankruptcy Code, credit bidding performs a similar function: It insulates the secured creditor from being cashed out at a time of depressed asset values and protects the secured creditor from the risk of suffering a “bankruptcy discount,” which some assert can occur in connection with chapter 11 sales. While some have argued that credit bidding “chills” bidding by third parties by permitting the secured creditor to “overbid” with currency that may be of little or no value, this criticism seems misplaced. If the value of the collateral is less than the amount of the secured creditor’s claim, the secured creditor would not credit bid if it expected third parties to offer a fair price in the absence of a competing bid from the secured creditor and the secured creditor would be the one who would suffer if appropriately priced bids were deterred. 

A circuit split – one of the most significant for secured creditors in recent years – has developed over whether the absolute priority rule as applied under the Bankruptcy Code requires that dissenting secured creditors be afforded the right to credit bid at a sale of their collateral pursuant to a chapter 11 plan of reorganization. The Third and Fifth Circuits, in the cases of In re Philadelphia Newspapers, LLC and In re Pacific Lumber Co., respectively, have taken the view that secured creditors may be precluded from credit bidding at a sale pursuant to a plan. The Seventh Circuit, in In re River Road Hotel Partners, LLC, recently took the opposite view. On December 12, 2011, the United States Supreme Court granted certiorari to resolve this issue. 

This article first explores secured creditors’ rights to credit bid under state law, as well as pre-Code law supporting the right in bankruptcy of a secured creditor to credit bid. Next, the article considers case law addressing credit bidding under the Bankruptcy Code, including the rarely disturbed right to credit bid at sales conducted outside a reorganization plan pursuant to section 363 of the Bankruptcy Code and the interplay between sections 1111(b) and 1129(b)(2)(A) of the Bankruptcy Code in connection with sales of collateral under a plan. Finally, the conflicting circuit court opinions are reviewed in detail, and the proper interpretation of the absolute priority rule (the so-called “fair and equitable” test) in the context of a sale of collateral under a plan is considered.

2nd Circuit Creates Split Over Lawyer-Ghostwriting Ethics Issue

A recent survey commissioned by LexisNexis and Vizibility, Inc. revealed that 81% of large law firms are presently using some form of social media for marketing. (You can view the results in infographic form here.) As the number of lawyers venturing out into the unchartered waters of social media continues to grow, so too will the number of modern variations on old-fashioned ethical issues. Consider, for example, the following.

Earlier this week on Real Lawyers Have Blogs, Kevin O’Keefe posed the following question to his readers, “Are ghostwritten lawyer blogs unethical?” The post noted that “[t]he ghostwriting of blogs is apparently becoming the rage for attorneys and law firms,” before ultimately concluding that “a real case can be made that it is misleading and unethical.” I highly recommend reading this piece in its entirety (here).

So what do ghostwritten lawyer blogs have to do with circuit splits? Good question.

In November of last year, the Second Circuit created a circuit split by finding that an attorney in New York did not violate state ethics rules by ghostwriting a pleading for a pro se litigant. See In re Liu, Dkt. No. 09-90006-am (2d Cir. Nov. 22, 2011). The court acknowledged the fact that “a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct.” Id.

These cases include Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001) (per curiam) (noting that ghost-writing pleadings for pro se parties violates Federal Rule of Civil Procedure 11 and ABA Model Code of Professional Responsibility DR 1-102(A)(4)); Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir.1971) (clarifying that briefs "prepared in any substantial part by a member of the bar" must be signed); Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426, 435 (Bankr. D. Mont.1999) (same); Wesley v. Don Stein Buick, Inc., 987 F. Supp. 884, 885-86 (D. Kan.1997) (discussing the ethical issues that arise from ghostwritten pleadings); Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075, 1077 (E.D. Va.1997) (same); United States v. Eleven Vehicles, 966 F.Supp. 361, 367 (E.D. Pa.1997) (same).

More surprising than its decision to create a circuit split over the issue, however, were the sources of authority on which the Second Circuit relied to support its position, which included: (1) “[a] 1987 opinion of the New York City Bar's Committee on Professional and Judicial Ethics,” (2) “a more recent opinion of the ABA's Standing Committee on Ethics and Professional Responsibility,” and (3) a 2010 ethics opinion issued by the Committee on Professional Ethics for the New York County Lawyers' Association. In re Liu, Dkt. No. 09-90006-am. You can read the Second Circuit’s full opinion here.

Split Over the Right to Effective Counsel in Immigration Proceedings

Yesterday’s post examined a circuit split over whether the Due Process Clause of the Fifth Amendment applies to private regulators. Today’s post covers yet another circuit split over the applicability of the Due Process Clause. This time, however, the circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings.

As the Third Circuit recently illustrated in the following footnote, this question has produced a circuit split that can only be described as "ripe for review":

Because immigration proceedings are civil rather than criminal in nature, the Sixth Amendment right to the effective assistance of counsel does not apply. Fadiga, 488 F.3d at 157 n.23. But we have recognized (along with a majority of our sister Courts of Appeals) that "[a] claim of ineffective  assistance of counsel in removal proceedings is cognizable under the Fifth Amendment — i.e., as a violation of that amendment's guarantee of due process." Id. at 155; see also Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001).³

3. Like our Court, the First, Second, Sixth, Ninth, Tenth, and Eleventh Circuits have held that the Due Process Clause guarantees an alien a right to assistance of counsel that is sufficiently effective to prevent removal proceedings from being fundamentally unfair. See Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); United States v. Perez, 330 F.3d 97, 101 (2d Cir. 2003); Denko v. INS, 351 F.3d 717, 723-24 (6th Cir. 2003); Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008); Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003); Dakane v. Att'y Gen., 399 F.3d 1269, 1273-74 (11th Cir. 2005). The Fourth and Eighth Circuits have held that there is no such constitutional right. See Afanwi v. Mukasey, 526 F.3d 788, 798 (4th Cir. 2008), cert. granted, vacated, & remanded by 130 S. Ct. 350, 175 L. Ed. 2d 4 (Mem.) (2009); Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008). Panels of the Seventh Circuit have issued conflicting decisions on the matter. Compare Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) (recognizing due process right) with Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005) (denying due process right). The Fifth Circuit has "repeatedly assumed without deciding that an alien's claim of ineffective assistance may implicate due process concerns under the Fifth Amendment." Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).

Contreras v. Att'y Gen. of the U.S., No. 10-4235 (3d Cir. Jan. 4, 2012). Judge Thomas Ambro, writing for the court, summarized the Third Circuit's stance on the issue:

This immigration case requires us to decide, among other things, whether the Fifth Amendment’s Due Process Clause guarantees an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. We hold that it does not, and thus deny the petition for review. 

Are Private Regulators Above the Constitution?

Last Friday, Forbes contributor Bill Singer wrote a piece on former president of North American Clearing, Inc. John Busacca’s legal run-in with the SEC. The article speculates, “With a split in the federal Circuits, the issue of Due Process protection at FINRA may soon find its way to the Supreme Court.”

The Financial Industry Regulatory Authority (otherwise known as “FINRA”) is the product of a 2007 merger between the NYSE’s former enforcement arm and the National Association of Securities Dealers (NASD). Although FINRA is technically a private entity, it works closely with government regulators like the SEC to create and enforce financial compliance measures on member brokerage firms. In 2011 alone, FINRA imposed $63 million in fines for compliance violations. 

With the SEC's blessing, FINRA fined Busacca $30,000 and suspended him for six months because he purportedly failed to supervise his firm's transition to a new books- and records-keeping system in a reasonable manner, resulting in widespread accounting errors. Busacca appealed the sanction to the Eleventh Circuit, arguing, among other things, that FINRA violated his Fifth Amendment right to due process of law by denying him access to documents that he believed were "vital to his defense." Busacca v. S.E.C., No. 10-15918 Non-Argument Calendar, at 6 (11th Cir. Dec. 28, 2011) (mem. op.).

As the Eleventh Circuit pointed out, however, Busacca's due process challenge presumes that FINRA operates as a "government actor" bound by the Due Process Clause of the Fifth Amendment; an issue that is by no means well settled:

We have not yet determined whether FINRA is a government actor subject to the Clause’s requirements. Other circuits have reached conflicting holdings on this question. See, e.g., D’Alessio v. S.E.C., 380 F.3d 112, 120 n.12 (2d Cir. 2004) (noting that the NASD, FINRA’s predecessor, “is not a state actor subject to due process requirements”); Rooms v. S.E.C., 444 F.3d 1208, 1214 (10th Cir. 2006) (finding that due process requirements apply to the NASD). To the extent the Due Process Clause applies to FINRA proceedings, its core demand is an opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); see Nat’l Ass’n of Bds. of Pharm. v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1317 (11th Cir. 2011). Nevertheless, in the context of criminal cases, the Supreme Court has emphasized that “[t]here is no general constitutional right to discovery” and that “the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977).

Id. at 6-7. When you consider some of the other tough questions that might arise from FINRA's characterization as a "government actor" (e.g., would FINRA then be entitled to government immunity in certian cases?), it's no wonder the Eleventh Circuit side-stepped the issue in Busacca.

Related reading

• Ilya Shapiro, Financial Regulators Are Not Above the Constitution, Cato @ Liberty (Oct. 26, 2011, 11:55 AM).
• PrivatizationBlog.com

*Hat tip to David Hargis, an associate at Moulton & Arnery, LLP, for bringing this circuit conflict to my attention.

(Image courtesy of Brian Holsclaw)

Emerging Split Over Service of Process on Foreign Defendants

Does the Hague Convention permit U.S. litigants to directly serve process on foreign defendants by mail?

Last week, a federal court in Colorado highlighted a circuit split over the appropriate method for serving process on foreign defendants. As the court explained, “[t]he Hague Convention is a treaty entered into by the United States and other countries, including Sweden, which provides a ‘simple and certain means by which to serve process on a foreign national.’ S. African Apartheid Litig., 643 F. Supp. 2d at 432.” Galloway v. Flexstar Technology, Civil Action No. 10-cv-02853-CMA-MTW (D. Colo. Jan. 5, 2012).

By “simple and certain means,” the cited court was referring to the Convention’s mandate “that each signatory country is required to establish a ‘Central Authority’ in order to receive and attempt to satisfy requests for service of process coming from foreign countries.” Id. Does the Convention’s express establishment of a “Central Authority” created for the sole purpose of serving process implicity bar other forms of service, including direct service by mail?

The court points out a split on the issue:

Compare Nuovo Pignore v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002) ("the Hague Convention does not permit service by mail") with Ackerman v. Levine, 788 F.2d 830, 839 (2d Cir. 1986) ("service of process by registered mail did not violate the Hague Convention."). Plaintiff should brief the issue if he still desires to attempt to effectuate service through the mail.

Id. at n.4. In 1998, the Fourth Circuit agreed with the Second Circuit that Article 10(a) of the Hague Convention permitted service of process on foreign defendants by mail. Koehler v. Dodwell, 152 F.3d 304, 307-08 (4th Cir. 1998).

New Exception Allowing Warrantless Home Entries Headed to the High Court?

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” Although the Fourth Amendment predates the invention of Henry Ford’s famous Model-T by more than a century, today, automobiles fit squarely within the Fourth Amendment’s definition of “effects.” As such, a police officer must obtain a warrant before searching a person’s car, absent some exception justifying the warrantless search.

One such exception is the “community caretaking exception,” which justifies an otherwise unconstitutional warrantless search of an automobile where the search is conducted by law enforcement in an attempt to protect the general public from harm, as opposed to a search conducted during the course of a criminal investigation. In carving out this exception to the warrant requirement, the Supreme Court was willing to permit law enforcement acting as “community caretakers” to search an individual’s vehicle without a warrant because, among other things, the invasion of privacy is relatively minimal compared to the intrusion that occurs when law enforcement decides to invade the inner sanctity of one's home.

As such, a conflict between the circuits has developed over whether the community caretaking exception extends beyond cars to also justify warrantless searches of the home. A case issued by the Southern District of Texas on January 3, 2012 highlights this split:

Although the Supreme Court has carved out a community caretaking exception for searches of vehicles, Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), "[t]here is some confusion among the circuits as to whether the community caretaking exception set forth in Cady applies to warrantless searches of homes." Ray v. Township of Warren, 626 F.3d 170, 175 (3rd Cir. 2010). See, e.g., US v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006) ("A police officer may enter a residence without a warrant as a community caretaker where the officer has a reasonable belief that an emergency exists requiring his or her attention."); US v. Rohrig, 98 F.3d 1506, 1520-21 (6th Cir. 1996) (finding that precedents suggest a late night disturbance of the peace might present exigent circumstances justifying warrantless searches); US v. Bute, 43 F.3d 531, 535 (10th Cir. 1994) ("We agree with this line of authority holding the community caretaking exception to the warrant requirement is applicable only in cases involving automobile searches."); US v. Erickson, 991 F.2d 529, 531 (9th Cir. 1993) ("The fact that a police officer is performing a community caretaking function, however, cannot itself justify a warrantless search of a private residence."). Yet these cases do not simply rely on the Cady community caretaking doctrine; "[t]hey instead apply what appears to be a modified exigent circumstances test, with perhaps a lower threshold for exigency if the officer is acting in a community caretaking role." Ray, 626 F.3d at 177.

Harvey v. Montgomery Cnty., Civ. No. 11-CV-1815 (S.D. Tex. Jan. 3, 2012) (mem. op.).

In rejecting the plaintiff’s claim that law enforcement violated a clearly established law and were therefore not entitled to qualified immunity, the court added,

The Fifth Circuit has not addressed the issue, and Courts of Appeals disagree about whether a community caretaking exception extends to searches of homes. Therefore, the Court cannot conclude that it would have been apparent to an objectively reasonably officer that the search of Harvey's home was in violation of the law. Id. Indeed, from either the Dispatch Notes or the 9-1-1 call itself, an officer could have operated under a reasonable belief that there was an emergency on Harvey's property. (Ex. A to Mot. Dismiss, p. COU 0004; Ex. A to Compl., Transcription of 9/11 Call of 5/16/09.) As a result, the Deputies are entitled to qualified immunity as to Harvey's unreasonable search claim.

Id. at *55.

Circuits Split Over the "Great Writ"

Sometimes referred to as the “Great Writ,” a “writ of habeas corpus” is a procedural mechanism through which a prisoner may demand that their "jailer" appear before a federal judge and “show cause” for their incarceration. (As a side note, since habeas applications are filed against the custodian who actually supervises the inmate's detention rather than the state itself, the resulting case names typically consist of the names of two individuals rather than one individual versus one state (e.g., “Paul Prisoner v. Ringo Warden” rather than “Paul Prisoner v. State of New York”).)

As the Fifth Circuit recently explained on December 27, 2011 in Hines v. Thaler,

Under [28 U.S.C.]§ 2254(d)(2), a federal district court may grant habeas relief “only if the state court's adjudication of his claim on the merits . . . ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” Rabe, 649 F.3d at 308 (quoting 28 U.S.C. § 2254(d)).

No. 11-70010 (5th Cir. Dec. 27, 2011) (unpublished) (ellipsis in original; emphasis added).  So, if a prisoner files a writ of habeas corpus under 28 U.S.C. § 2254(d)(2) challenging the correctness of a state court’s factual determination, should federal courts apply the more rigorous “clear and convincing” standard of review found in § 2254(e)(1), or the more lenient “unreasonable determination” standard provided by § 2254(d)(2)?  In a footnote to the block-quoted text above, the Fifth Circuit identified the following circuit conflict over this question:

We also note that under AEDPA “a determination of a factual issue made by a State court shall be presumed to be correct,” such that “[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The relationship between this provision and § 2254(d)(2) is ambiguous. As this court has previously explained, “[w]e do not make any pronouncements as to whether the more deferential standard prescribed in § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2),” a question that the Supreme Court has left open. See Turner v. Epps, 412 F. App’x 696, 700 n.2 (5th Cir. 2011) (citing Wood v. Allen, 130 S. Ct. 841, 848–49, 175 L. Ed. 2d 738 (2010) (observing, but not resolving, the circuit split among courts regarding the relationship between § 2254(d)(2) and § 2254(e)(1))). Below, we hold that reasonable jurists could not debate the correctness of the district court's determination that the state court's adjudication was not based on an unreasonable determination of the facts. Therefore, we see no need to resolve which standard—the more rigorous “clear and convincing” or the more lenient “unreasonable determination”—should govern this case and do not consider this issue further.

Id. (emphasis added).

(Image courtesy of Paul D. Halliday's "Habeas Corpus: From England to Empire," which can be found on Amazon.com here.)

U.S. Sentencing Guidelines and the Ex Post Facto Clause

In one of the final decisions handed down in 2011, the Seventh Circuit revisited an issue that originally led Judge Posner and his panel to split from the majority of circuits back in 2006. See United States v. Sandoval, Nos. 10-1219, 10-1338, & 10-1607 (7th Cir. Dec. 27, 2011). Judge Posner framed the question presented as follows:

The only question presented by this criminal appeal is whether, the federal sentencing guidelines having been made advisory by the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), a change in the guidelines that expands the guidelines range for a crime is an ex post facto law and so cannot be applied to a defendant who committed his crime before the change.

United States v. Demaree, 459 F.3d 791, 792 (7th Cir. 2006). In its subsequent opinion in Sandoval, the court noted that it had previously "held in . . . Demaree . . . that because the guidelines are advisory, changes that retroactively increase the sentencing range for a crime are not ex post facto laws.” After reconsidering the issue, the Seventh Circuit once again upheld its decision in Demaree “[d]espite disagreement from other circuits, see United States v. Wetherald, 636 F.3d 1315, 1321 (11th Cir. 2011); United States v. Ortiz, 621 F.3d 82, 87 (2d Cir. 2010); United States v. Turner, 548 F.3d 1094, 1099-1100, 383 U.S. App. D.C. 407 (D.C. Cir. 2008).” Id. at 793. The Fourth Circuit has also joined the majority of circuits in disagreeing with the Seventh Circuit. See generally United States v. Lewis, 606 F.3d 193, 199 (4th Cir. 2010) (holding that "application of the amended 2008 Guidelines would contravene the Ex Post Facto Clause of the Constitution” and therefore applying the sentencing guidelines as they existed at the time the underlying crime was committed).

Related Reading

• Office of General Counsel, U.S. Sentencing Commission, Victim Primer (§2B1.1(b)(2)) (Apr. 2011)

• Gregory L. Poe, The Ex Post Facto Clause and the United States Sentencing Guidelines, Federal Criminal Practice Blog (Aug. 24, 2010)

• Harlan J. Protass, The Ex Post Facto Clause In The Post-Booker World, Second Circuit Sentencing Blog  (July 1, 2009)

(photo: http://smashedfrog.blogspot.com/2010/03/has-government-neutralized-ex-post.html)

Abbott v. United States [Infographic - OT2010]

The following infographic depicts one of the many conflicts of law resolved by the Supreme Court during its 2010 term. For more information about what these infographics can teach us, click here.

"Service": Two Cases, One Word, Many Meanings (Part 2 of 2)

Happy New Year!

Last week in Part 1, we looked at Gill v. JetBlue Airways Corp., a recent case in which a federal court in Massachusetts highlighted a conflict between a handful of circuit courts over the proper meaning of the term "service," as used in the  Airline Deregulation Act of 1978. Today we look at City of Arlington v. Frame. Ironically, just one day after Judge Dennis Saylor IV issued his memorandum opinion in Gill, the City of Arlington filed a petition for certiorari asking the Supreme Court to define the scope of the word “service” as it is used in the other ADA - the Americans with Disabilities Act.

The particular provision in question provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132 (emphasis added).

The question of whether new city streets and sidewalks are considered "services" that must be handicap accessible under the ADA resulted in no fewer than three separate opinions from the Fifth Circuit: a panel decision, an amended panel decision, and an 8-7 decision from the court sitting en banc.

In its amended panel decision, the Fifth Circuit majority held “that curbs, sidewalks, and parking lots do not constitute a service, program, or activity within the meaning of Title II of the ADA.” Frame v. City of Arlington ("Frame II") 616 F. 3d 476, 490 (5th Cir. 2010), vacated and reh'g en banc granted, 632 F.3d 177 (5th Cir. 2011). In his partial dissent, Judge Prado criticized the majority for asking “whether sidewalks ‘are services themselves,’” since other circuits have instead analyzed “whether a city provides a service through the construction, maintenance, or alteration of those sidewalks.” Id. (citing Barden v. City of Sacramento, 292 F.3d 1073, 1074, 1076 (9th Cir.2002) (“We must decide whether public sidewalks . . . are a service, program, or activity . . . within the meaning of [the ADA]. We hold that they are . . . . [because] maintaining public sidewalks is a normal function of a city. . . .”) (ellipsis in original)). Judge Prado's dissent goes on to point out that “[t]he majority’s opinion creates a split with the Ninth Circuit and is unsupported by any of our sister circuits.” Id. at 495.

The Fifth Circuit, sitting en banc, ultimately vacated its amended decision and in its place issued an 8-7 decision in which the majority held that public sidewalks are “unambiguously” a “service, program, or activity of a public entity” under the ADA and Rehabilitation Act. See Frame v. City of Arlington, 657 F. 3d 215, 223 (2011) (en banc).

As of December 30, 2011, the City of Arlington's cert petition remains pending before the Supreme Court.