Appellate Law & Practice

CA1: Unions keeping their employees down

NLRB v. Hotel Employees and Restaurant Employees International Union, No. 05-1924 enforces the Board’s order, over and denies the board’s petition for review. Ironically, in this case, the defendant was the union itself who is an ALJ and the board determined wrongfully fired a researcher for attempting to rile up the union’s staff about their leafleting and picketing schedule. The opinion contains some interesting descriptions of how unions operate, and their internal politics. In this case, an employee of the union was discharged for, what the ALJ concluded was “complaining about the leafleting schedule.” Applying Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), the ALJ and the board found that the union had not met its burden of showing that the employee was really discharged because of her temper, skills as a research, or general demeanor. On appeal, the court first determines that under 29 U.S.C. § 157, the employees’ activities were for the purpose of “mutual aid or protection” and not just grousing about her personal schedule, since substantial evidence showed that she polled other employees about their gripes. The rest of the opinion is really affirming a credibility determination.

Third Circuit Immigration rank-a-thon

DoTD points to the 3d Circuit, which blows its collective top at an Immigration Judge. By now, we know that immigration judges have a bad name. But, this time, the Third Decides to catalogue everything that the Hon. Donald V. Ferlise has done recently.

The cases are:

• Cham v. Attorney General, 04-4251
  
• Shah v. Attorney General, 04-3607

 

The week in review.

This week, the following comments in public, on blogs or in private. (Actually, they made them every week.)  Essentially it summarizes all you really need to know.

CA1: The Real ID Act and Equitable Tolling

Boakai v. Gonzales, 05-1961.  In today’s only new opinion from the First, it concludes that it lacks jurisdiction to review the BIA’s order removing a Liberian from the US.  Petitioner untimely filed a motion with the BIA, arguing that it should reopen the case on the merits, because he was ineffectively assisted by counsel.  Unlike other cases, it is worth nothing that this guy is a convicted felon, but an IJ had found that he was entitled to relief under the CAT – twice.  But, both times the BIA disagreed and ordered him removed.  (I wonder if the IJ got teased by the IJs for appearing too sympathetic for even the BIA.)  Anyway, his lawyer didn’t try to seek review of the BIA’s order, and the petitioner filed a petition for habeas corpus, and the court appointed counsel, who filed a motion to reopen, arguing ineffective assistance.  The BIA rejected it as untimely (and held that he hadn’t shown that equitable tolling was applicable.)  Then, he filed a second petition for habeas corpus, which was converted to a petition for review under the Real ID act.  See 8 U.S.C. § 1252(a)(2)(D).  The First concludes, however, that the court’s jurisdiction under the Real ID Act doesn’t “help” him, because the only reviewable real issue before the court is whether “equitable tolling” would apply to his late motion to reopen, as that is a question of law within the meaning of the Real ID Act.  Since an element of equitable tolling is “due diligence” and his counsel didn’t claim that he was diligent, there was no legal error to review.  Therefore, there is no jurisdiction to review the CAT claim.

But, to avoid scathing commentary from some bloggers, the court adds a footnote explaining that most of the claims of ineffective assistance are without merit, and he kept firing his old lawyers, and the ones he claim were effective actually succeeded before the IJ, and whatever the case, Liberia has gotten better so he probably won’t be tortured anyway.  Petitioner was represented by David J. Apfel and Gina M. Atwood of Goodwin Procter, which seems to be carrying the flag on a lot of these immigration issues.

CA1: Albanian not credible

Lumaj v. Gonzales, No. 05-2209.  In this asylum case, it seems that the first asylum officer (at the airport) found his story credible.  But, before the IJ there was inconsistences.  The First notes that it is probably unlikely that he would be persecuted in Albania in the future, because his family still lives there, “Thus, even if he could show a genuine subjective fear of future persecution, he has not met his separate obligation to establish an objectively reasonable basis for that fear.”

CA1: let's do the Booker timewarp again

US v. Jones, No. 05-1541 (unpublished) vacates and remands for re-sentencing.  Essentially:

Jones argues — and the government concedes — that the sentence should be vacated and the case remanded for resentencing because, among other things, the district court deviated from the [guidelines] based on unexpected grounds and without giving any advance notice.

As astute readers of this blog may know, the government recently changed its position on this issue. But, the First seems to insist on analyzing the issue, and concluding that because of the timing of the sentencing and Booker, “the case falls into a peculiar time warp.”  Also, the Distirct Court seems to have “mis-recollected” what it said at the sentencing hearing, and United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006) (our coverage here) "clarified" how sentencing should proceed under the advisory guidelines. 

The court also notes the issue of whether "the running of the two components of the sentence consecutively constituted a departure rather than a variance and, if not, whether the advance notice requirement of Burns v. United States, 501 U.S. 129, 131 (1991), and Fed. R. Crim. P. 32(h) should apply by analogy to deviations from the advisory guidelines (as opposed to departures)” is, as of now, unresolved."

CA1: Conspiracy; Booker; mandatory minimums, 701; and judicially found sentencing facts

US v. Lizardo, No. 04-1714.  In this case a cop was convicted of a bunch of drug related stuff, which was based a number of hilarious phone conversations.  The defendant challenges his conviction under 21 U.S.C. § 846 (conspiracy to distribute cocaine) for lack of evidence.  As we all know, to prove conspiracy, the government must show, “the existence of a conspiracy, the defendant's knowledge of the conspiracy, and the defendant's voluntary participation in the conspiracy."  While the First two elements are all but conceded, the court holds by helping the other defendants to evade capture (using police equipment) he was willingly part of the conspiracy, and this wasn’t a “peripheral service.”  For the same reason, a challenge to a jury instruction based on the theory of “willful blindness” (as the defendant argued that it “mandated an inference of knowledge and because it allowed an inference of voluntary participation from deliberate ignorance”) is also rejected.  Also, the court notes that the hilarious intercepted phone calls gave additional indications of his participation in the conspiracy.

(Read on.)

CA1: No student loan discharge for bipolar ex-law student

In Re: Noreen E. Nash, No. 05-2549. A University of Michigan Law School dropout (and Yale Management School graduate) with mental problems declared bankruptcy, and in an adversary proceeding, argued that under 11 U.S.C. § 523(a)(8) replaying the debts would constitute a hardship.  After a trial, the Bankruptcy Judge found that she wasn’t entitled to a discharge for three reasons: appellant’s long-term prognosis, the effects over time of therapy and medication, and the effects of her mental condition on her employment prospects.  The District Court judge found that she also had not made a good faith attempt to repay her loans.  Without addressing the issue of good faith, the first clarifies what constitutes “hardship,” and, while acknowledge a bit of a split between the circuits, conclude there isn’t any disagreement as to the standards, as “The standards urged on us by the parties both require the debtor to demonstrate that her disability will prevent her from working for the foreseeable future.”  The judge had found that there just wasn’t any admissible evidence that would show that she was permanently disabled by what seems to be bipolar disorder.  The court does note, however, that:

If her condition justifies it, she may be successful in securing an administrative discharge on the basis of total and permanent disability. See 34 C.F.R. § 682.402(c)(15); 34 C.F.R. § 685.213(a). In any event, our decision today does not bar appellant from making another, more adequately supported request for discharge. See 11 U.S.C. § 523(b)

More stuff (of questionable import) below the fold.

In Louisiana, scope of appellate review may change

Here's a news item for Louisiana appellate lawyers: The Louisiana Legislature is considering a constitutional amendment to narrow the scope of appellate review in civil cases. Currently in civil cases, appellate review extends to both law and facts.¹ Under the proposed amendment (which of course would require voter approval), appellate review in civil cases would extend only to law, not to facts. For those keeping score at home, it's Senate Bill 77. Details and links are on Naked Ownership.

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¹ As Stanley Kowalski might have said, "It's a Napoleonic Code thing."

Don't ask don't tell coming to CA1

Some corners of the press has been paying some attention to the dismissal of case in D.MA challenging the “Don’t Ask; Don’t Tell” statute (and policy of the military.)  Leonard Link provides some specifics, and notes that: 

Although O’Toole’s view of Lawrence is shared by many other federal judges, it is by no means undisputed, especially among legal scholars, and since the First Circuit Court of Appeals, based in Boston, has not previously address the question, it is possible that this ruling will be appealed after SLDN has had an opportunity to consult its clients and study the opinion.