Appellate Law & Practice

CA1: Albanian not that oppressed

Nesimi v. Gonzales, No. 06-2168 (5/31/07) (unpublished).  An asylum petitioner from Albania loses.  The IJ relied on state department country reports, which paint a dismal picture of the country, but don’t talk about political oppression.  And, the court finds that the IJ and the BIA didn’t confuse the asylum and CAT claims.

CA1: First finds a way to let government breach plea agreement

US v. Rivera-Rodriguez, No. 04-1009 affirms the sentence of a man convicted of conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 846 and 841(a)(1).  He raises three issues, which I state in order of their interest to me: they are 1) Breach of a Plea Agreement by the government; 2) Lack of notice that the court intended to rely on testimony from his co-defendants’ trial in deciding where to sentence him within the guideline range; 3)  Two-level increase for his role in the offense pursuant to U.S.S.G. § 3B1.1(c); and 4)Booker error

Breach of a Plea Agreement by the government.

Guess what?  Review of claim that a plea agreement is breached is for plain error!  See United States v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000).   The First talks about how government attorneys are bound to high standards of conduct in plea agreements. But we all know where this is going – the same place that complaints about improper statements by government counsel go – condemnation in words, but ultimate affirmance. 

CA1: Canadian Micmacs have to pay taxes

Metallic v. Commissioner of IRS, No. 06-2387 (unpublished).  Affirming the Tax Court, the First holds that: 1) “the Tax Court... [correctly] pointed out that Native Americans, like ‘other U.S. citizens,’ are obliged to pay federal income taxes, and that while treaties might exempt them from taxation, the 1776 treaty [with the Micmac Indians] did not do so; but 2) the mere fact that the Tax Court suggested that he was a US Citizen (as opposed to a member of “a Canadian Micmac tribe”) doesn’t really prejudice him because he “acknowledges that he resides in this country, and so the tax laws apply to him even if he is not a citizen.”  TaxProfBlog comments here.

CA1: land-use conflicts rarely support constitutional claims

Rupprecht v. City of Pittsfield, No. 06-2767 (unpublished).  This summarily affirms the court below, and doesn’t really tell us what the issues were.  But, it reads, “Among other problems, land-use conflicts rarely support constitutional claims. Extreme circumstances are required to support substantive due process or equal protection claims. Exhaustion of state remedies is a prerequisite for procedural due process and Fifth Amendment takings claims... Appellant made no showing that he satisfied any of these requirements.”  Obviously, it was a pro se.

Texas official seeks identities of blog commentators

A Public Defender writes about the efforts of the Bexar County[Texas] probation director to uncover the identities of anonymous blog commentators. The post includes motions to quash, and all that stuff. At bottom is a dispute over unionization. On the top are those big principles like freedom of expression, and stuff. 

Invitation brief in Rowe

SCOTUSblog provides coverage of the Solicitor General’s invitation brief on the petition for cert. in Rowe v. New Hampshire Motor Transport Association.  The case is here, and our coverage here.  Ross Runkel provides some commentary here.

CA1: stop using state law as a defense to NLRB orders, darnit!

Hospital Cristo v. NLRB, No. 06-2277 enforces an order of the NLRB.  But, it begins with an ominous warning:

While the outcome of the case is largely driven by the facts and by the substantial evidence rule, there is one basic point of law worth stressing. This court has previously rejected, and we do so again, arguments by petitioners that because they supposedly have complied with Puerto Rico Law 80, P.R. Laws Ann. tit. 29, §§ 185a-185m, they have a defense against enforcement of a Board unfair labor practice decision and order. Such arguments fundamentally misunderstand both the operation of federal labor relations law and the role of courts reviewing Board orders.

Essentially, the hospital unsuccessfully argued that Puerto Rican law somehow overrode the power of the NLRB to provide remedies to employees that were wrongfully punished for their union activities.  I thought this was settled.  But, for some reason, the hospital thought it could use the Puerto Rican law, which tries to protect against discrimination, as a defense to an NLRB order.  Although the First characterizes this as a misunderstanding of judicial review, I see it more as just a failed preemption argument. 

We shall overcome, and you shall look below.

CA1: Feds win gift card preemption fight

SPGGC, LLC v. Atty Gen of NH, No. 06-2326.  This is one of those banking cases dealing with whether federal regulation of products sold by national banks and thrifts preempts state regulation.  It does.

The state statute is N.H. Rev. Stat. Ann. § 358-A:2 ("New Hampshire CPA").  The Federal Statutes are the National Banking Act, 12 U.S.C. § 1 et seq., the Home Owners Loan Act, 12 U.S.C. § 1461 et seq. ("HOLA").  This basically applies Watters v. Wachovia Bank, N.A., No. 05-1342, slip op. at 13, 550 U.S. __ (Apr. 17, 2007) and  Barnett Bank of Marion County, N. A. v. Nelson, Florida Ins. Comm'r, 517 U.S. 25 (1996).  Put on a funny hat and keep reading. 

CA1: So long as a school acts in good faith, it isn’t liable for student-on-student sexual harassment

Porto v. Town of Tewksbury, Nos. 06-1994, 06-2139. Student on student sexual harassment: When a school system may be liable under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.?  Davis v. Monroe County Board of Education, 526 U.S. 629, 648 (1999) requires “deliberate indifference.”  The First looks at a jury verdict (for $250,000 and punitive damages of $1) and concludes that the evidence was insufficient to support such a verdict.  Without going into details, these were little kids with major problems.  The school district seems to have tried, but failed, to stop the problems. And, in these cases, the First reverses, essentially saying that a good faith effort is enough.

The whole case is pretty sick.  But, I found one thing funny.  There is actually someone with the title, “Behavior Management Facilitator.” Is that a hall monitor?

Michael L. Rich comments here (with some interesting comments in the box)

CA1: insurance coverage fight over not-so-sudden discharge

Barrett Paving Materials v. Continental Insurance, Nos. 06-1951, 06-2017.  Ah, you gotta love insurance coverage litigation.  If you don’t love it, you need to get your head checked.  Anyway, “This case arises out of a dispute between Barrett Paving Materials, Inc. ("Barrett") and three of its insurers concerning the insurers' respective duties to defend Barrett against a third party complaint for contribution on a claim for environmental clean-up costs.”  You should keep reading.