Appellate Law & Practice

CA5 - Tax Court Jurisdiction

Estate of Smith v. CIR (Davis, J.)

The court reverses a divided en banc panel of the Tax Court.  The issue concerns the scope of the Tax Court's jurisdiction to review the Commissioner's decision to credit the amount of an overpayment against a taxpayer's underpayment of interest.  The difference of opinion turns on different views on whether the Tax Court's previous overpayment judgment covered only overpayment of a tax or both the overpayment of the tax and an underpayment of interest.  The Tax Court believed that its prior judgment holding that the taxpayer had overpayed by a certain amount necessarily disposed of any claim by the Commissioner that the taxpayer had underpayed on back interest.  The Fifth Circuit disagrees and adopts the dissent of Tax Court Judge Goeke.

CA1: FRCP 60(b) flavors discussed

Edwards v. Fiddes, No. 05-1306, is an appeal of the denial of a Fed. R. Civ. P. 60(b)(6) ("any other reason justifying relief  from the operation of the judgment") motion.  The appellate argues that there was fraud on the court.  Applying Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), but the court concludes that there really wasn’t anything fraudulent.  People were just being sneaky and untruthful, which is business as usual.  But the court also analyzes the issues under  Fed. R. Civ. P. 60(b)(3) ("fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party"), and reaches a similar conclusion.   It’s a nice discussion of the difference, but I don't have time to parse through all of someone else's litigation-related nastiness.

CA1: appeals of vacated remands

Connolly v. H.D. Goodall Hospital, No. 05-1392, is really a 1983 case, but because the plaintiff did a very bad job litigating it, the First doesn’t address the merits, but instead makes a couple of points about jurisdiction.  In this case, the District Court attempted to vacate a remand to the state court, and if it did have the power to vacate the remand, “...did the court's actions render non-final its remand order and convert the present proceedings into an unauthorized interlocutory appeal over which we would lack jurisdiction?”  Answer:

If the district court lacked the power to vacate its remand (a matter that has not been adequately briefed and that we will not decide), there is no jurisdictional problem because no live claims remain pending in federal court. But if the court had the power to vacate the remand, it is clear to us that the court did not intend to revisit the merits of its judgment that the supplemental state claims ought to be remanded. Rather, the court intended only to undo the execution of the remand so as to avoid the duplicative litigation issue we have noted.... In these circumstances, the remand order, although not yet executed, remains final.

CA1: BK courts have discretion to convert petitions

In re Robert Louis Marrama, No. 04-9009, affirms the decision of the Bankruptcy Appellate Panel which affirmed the Bankruptcy court’s denial of a “petition to convert these proceedings from Chapter 7 to Chapter 13, based on its determination that Marrama had attempted to conceal assets from creditors.”  The First Concludes that “[11 USC] § 706(a) confers ... discretion upon the bankruptcy court to forfend against “bad faith” conversions to chapter 13.”  Then it concludes that the Bankruptcy Court’s finding that the debtor, acted in bad faith were not clear error.

CA1: major Strickland habeas decision

Dugas v. Coplan, No. 04-1776, remands a habeas petition to the district court to determine whether counsel’s performance case so ineffective as to cause prejudice under Strickland.  This was an arson case.  Since a jury appears to have convicted a man who was innocent, I am sure that those who argue that juries are out of control and reach incorrect verdicts will join with me in arguing for more searching review of state convictions on habeas. After Councilman, this is probably one of the most important cases of 2005 for the First Circuit. Heck… it probably is more important than Councilman. The dissent is horrendous and makes me embarrassed to be an American.

CA1: More on Medina and kinds of cocaine

Professor Spenser has another blog, Split Circuits.  Of note, he states that in U.S. v. Medina, --- F.3d ----, 2005 WL 2740828 (1st Cir. Oct. 25, 2005).

The question whether the statute regulates only possession of crack or whether its rule encompasses other forms of cocaine base is the subject of some debate and of a conflict among the circuits. See, e.g., United States v. Edwards, 397 F.3d 570, 575-77 (7th Cir.2005) (describing split). In this circuit, however, it is settled that 21 U.S.C. § 841 regulates exactly what its terms suggest: the possession of any form of "cocaine base.

I didn’t put this in my post on the coverage here, so you might want to revisit it.

Appellate Practice Bookworm (of sorts)

I can't think of an article I feel like reading today, but I figured that I can give y'all a tip on finding some sources.  But first, you gotta listen to a rant about the Scalaites.  Google Print is still in Beta (but hey, half of Google is in Beta) consists of various scans of books. Although some publishers have resisted, Hein appears to have allowed Google to scan many of its reprints (or provided Google with its files), and you can get selections of some of the old books.

CA1: more on country condition reports

Palma-Mazariegos v. Gonzales, No. 05-1330 affirms the decision of the BIA which held that things were now safe for the petitioner to go back to Guatemala.  The First Circuit does, however, clarify the proper use of State Department Country condition reports (as it first discussed in Zarouite, see our coverage here and here).  The court concludes that country condition reports can be given greater weight if they address precisely the issue that the petitioner is talking about.

CA1: the end of the discovery battle

Doe v. Solvay Pharmaceuticals, No. 05-1065 (unpublished) affirms summary judgment for the defendant in a case where the plaintiff kept claiming that the defendant was withholding materials that should have been produced pursuant to certain discovery requests.  The defendant seems to have gone out of its way to convince the court that it was acting in good faith: by giving a pro se defendant free reign to browse documents in a room at the courthouse and at their headquarters in Georgia.  However, at the end of the day, the plaintiff didn’t even try to show that the defendant was hiding something.  Finally, the court concludes, in what appears to be a drug defect case under Maine Law, that expert testimony would have been necessary. 

CA1: fees and costs in copyright actions and final orders

Garcia-Goyco v. Law Environmental (LEC), 05-1027, affirms a grant of costs and attorney’s fees to Law Environmental as a prevailing party under the Copyright Act, 17 U.S.C. § 505.  Complicating matters somewhat is the fact that the District Court, after receiving a motion for attorneys fees, “issued an order denying LEC’s motion... without prejudice of being resubmitted with satisfactory evidence, in addition to LEC’s attorneys’ own affidavits, justifying thereasonableness of its requested rate for attorney’s fees.”  There was no timeframe specified for the additional submissions.  The court dodges whether that order was a final one or not, and notes that even though the court slightly department from local rules regarding refiling of requests, nobody was prejudiced, and the second request was therefore timely filed.  As to the merits, the court notes that under Fogerty v. Fantasy, 510 U.S. 517 (1994) “an explicit finding of frivolity or bad faith is not required for the award of attorney’s fees under 17 U.S.C. § 505.”  Instead, a non-exhaustive list of factors is used to determine whether fees are warranted.  Based on the Fogerty factors, the court concludes that the District Court did make the required findings of fact.  (There is a bit of copyright law nerdery in there about what might be copyrighted, but I don't have time to address it, and the court doesn't really go into the merits of it.)