Appellate Law & Practice

CA1: Cambodia not that oppressed

Ouk v. Gonzales, No. 06-1266, denies a petition for review in an asylum case. The petitioner is from Cambodia. The opinion does end with the strange note:

 Finally, as to the grant of voluntary departure, the government has not opposed Ouk's argument for tolling the period during which she must post her departure bond. Accordingly, Ouk has one business day from the issuance of this opinion to post her $500 voluntary departure bond.

CA1: the BIA didn’t properly defer to foreign military courts

Castaneda Castillo v. Gonzales, No. 05-2384 reverses the BIA, which held that the petitioners were not eligible for asylum because they, themselves had persecuted people. The facts are quite interesting and involve a Peruvian army officer who was subject to investigation for what appears to be a rather disturbing genocide. Because of his position, he was targeted by the Shining Path, and he fled to the US. After some discussion of Peruvian procedure, there appears to be a disagreement between documents from the “Supreme Council of Military Justice” and the State Department’s Country Reports. As a result, at the immigration hearings the lawyers seem to end up arguing about whether the Peruvian military was serious about prosecuting people for human rights violations.

The First concludes that the BIA should have deferred to the findings of the Peruvian military tribunals, as they were duly constituted military tribunals, and the (US) government’s argument that a political squabble over what the proper role of Peruvian military courts is (based on an “article” doesn’t change matters.

Then the First disassembles the IJ’s adverse credibility findings. These are quite interesting, but they are typical of the way most IJ findings can be disassembled.

So, the First reverses saying that the record is good enough to support granting the petition. The dissent (Lynch) says that it shouldn’t be granted, and in the alternative, it should be remanded. Unfortunately, Judge Lynch loses credibility by writing this crap:

Asylum is not a right; it is a privilege.

Lynch graduated high school a few decades ago. I can’t believe he still thinks in such pithy terms.

CA1: The TILA won’t save people from their objective clarity

Palmer v. Champion Mortgage, No. 06-1246. As most of you know, the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667 gives people a right to rescind a mortgage within a few days, and the mortgage company gave notice of that right. See 15 U.S.C. § 1635(a). The plaintiff waited for well over a year to rescind. She claims she was confused. On a motion to dismiss (as the notice was annexed to the complaint), The District Court and the First say that just claiming to be confused isn’t good enough, because they hold that the standard is “objective reasonableness” rather than “subjective understanding.” 

Anyway, I think this result is fairly straightforward, and Champion Mortgage is in the right. Therefore, any of you who think that I am a communist are thereby proven wrong.

CA1: Why can’t people understand FRCP 72(b) ?

Velez-Padro v. Thermo King De Puerto Rico, No. 05-2661. A motion for summary judgment was referred to a magistrate. The magistrate recommended that it be granted. The losing party filed objections. The winning party said that such objections “merely echo the arguments already raised in [plaintiff’s] opposition to summary judgment” and that plaintiff had therefore failed to comply with Federal Rule of Civil Procedure 72(b)…” Somehow the District Court judge bought that argument. The First says that isn’t the rule. The rule is that the objections need to be specific and not conclusory. Not different. If a litigant can do this, then the District Court judge needs to review it de novo. So, the First remands for such a de novo review. How did the District Court get this wrong?

Does this mean Tashima won't hire Gonzaga grads ?

In a graceful exercise in elitistism, Judge Tashima publishes an opinion in which he describes the plight of a person with learning disabilities who cannot “concentrate, focus on details, read, and write” and yet still gets into Gonzaga. Gonzaga makes all sorts of accommodations for him, and after awhile he graduates. Then he fails the Idaho bar and can’t get a job. He has some $200,000 or so worth of debt. But the 9^th decides that he isn’t acting in goof faith to earn enough money, and therefore he isn’t entitled to a discharge. Judge Tashima went to Harvard. It is not known whether Harvard grads have problems with concentration, details, reading and writing.  Tnx AWC. See also Cal. Appellate Report (written by a prof at  UCSD).

Legal Information Institute Search Plugins

This is really great.  Now you can search the USC, CTA opinions, and other stuff for free, via a Firefox plugin  here.  Tnx. Robert J. Ambrogi

CA1: The P in Pennsylvania is for Polygamy

The Pennsylvania Supreme Court discusses in Shepp v. Shepp when, in the course a custody dispute, a trial court can decide whether a parent’s religious teachings regarding polygamy (a practice illegal in Pennsylvania) constitute such a grave threat that it can bar the parent from speaking to the child about them. 

Commentary follows.

CA1: what do possession and commitment mean to you?

US v. Holt, No. 05-2703 affirms the conviction of a person who was convicted under 18 U.S.C. § 922(g)(4) (2000) for possession of a firearm by a person who has been committed to a mental institution.

The First finds that the term “committed” should not be left to the jury.  After explaining how commitment works in Maine (under 34-B M.R.S.A. § 3864), which requires an examination within 24 hours after someone is committed, the court, applying United States v. Chamberlain, 159 F.3d 656 (1st Cir. 1998), the court concludes that “the term ‘committed’ in the statute refers to a judicial (or possibly an administrative) order of commitment and does not depend on the ultimate outcome of the commitment.” 

The court also holds that “possession” jury instructions do not need to necessarily include “innocent possession” defense.  But, the court leaves open the door to a necessity defense to possession.

CA1: Arbitration, forfeiture, and revision of awards

Local 2322 v. Verizon, Inc.,  Nos. 06-1169, 06-1170.  This case, comes down to an arbitration issue.  In this case, the arbitrator, upon request, wrote the parties a letter clarifying an award of back pay.  Verizon claims that the alteration of the award went beyond the arbitrator’s authority.
The First starts by explaining whether someone can forfeit an issue by not raising it below.  The Union says it forfeited the issue.  Verizon says they can raise it as a defense if their opponent appeals.  The First explains that “......in arbitration the dissatisfied party must ordinarily seek review and is barred from reserving objections to the arbitrator's decision until enforcement is sought.”

Finally, the court notes that Verizon’s argument – (in Latin, the doctrine of “functus officio doctrine”) was incorrect, but not frivolous, and therefore, it was not improper for the District Court to decline to award attorneys fees.

This is an especially thoughtful opinion and a good read.

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What do you get when you mix R. Crumb Illustrations, an attorney from the Bronx Defenders, and a the drug war together?

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