Appellate Law & Practice

Ninth to rehear public school public strip search case en banc

DotD reports on how the Ninth said that a school didn’t violate a student’ Fourth Amendment rights when they stripped-searched her in public for aspirin.  It turns out that she got one of them fancy lawyers, who convinced the Ninth that she was high-class material, and that a ruling against her might infringe upon the rights of Americans that matter even though a scant few of them would let their children attend a public school.  So, they are going to rehear it "en banc."  I should note that in no way does this alter the incontrovertible fact that kids that attend public schools have only themselves to blame for being cast out of society like the lepers they are.

CA1: all the kinds of extortion

Chikkeur v. Mukasey, Nos. 05-2893, 07-1798 denies a petition for review of Algerians.  However, it comes down to whether “economic” extortion really had a political motive or not.   

CA1: Public Health Service is treated like other uniformed services for purposes of FTCA and Bivens

Diaz-Romero v. Ashcroft, No. 07-1607.  The plaintiff is a commissioned officer of the Public Health Service, an agency of the Department of Health and Human Services, which is a "uniformed service" of the United States. 42 U.S.C. § 201(p).  (And yes, they wear uniforms.  But wouldn't it be funny, if there was a typo and they wore unicorns?  That would be pretty zany, because they would always bump into each other, right?)  The facts are strange.  He was seconded to the Bureau of Prisons and:

During Diaz-Romero's stint with the BOP he was involved in two incidents. First, another BOP employee filed a sexual harassment complaint against him, although an Equal Employment Opportunity Commission investigator later concluded that the complaint was unfounded. Second, he failed to report to management that an inmate greeted him by placing her cheek next to his and "throwing" a kiss to the air.

Then a bunch of adverse employment actions transpired.  “Diaz-Romero asserted that he was punished for defending against the sexual harassment claim and not because of the incident with the inmate.”  He asserts a bunch of theories of jurisdiction, namely the FTCA and Bivens.  The District Court says Feres applies to the PHS.

Applying Feres to both the Bivens and the tort claims, the First finds that even though he was at a civilian prison, handle this claim would require the courts to inquire into the military’s disciplinary scheme.

CA1: anti-gay parents that don’t like gay people lose establishment clause challenge

Parker v. Town of Lexington, No. 07-1528.  I was going to call this breaking news, but it isn’t.  A bunch of parents are angry that “[T]hey must be given prior notice by the school and the opportunity to exempt their young children from exposure to books they find religiously repugnant.”  And by “religiously repugnant” they mean “contains neutral or friendly references” to gay people.  Or, in the words of the court, “Both families assert that they are devout Judeo-Christians and that a core belief of their religion is that homosexual behavior and gay marriage are immoral and violate God's law.”  (I think not being a lawyer violates god’s law, but you don’t see me suing people for that.)

You can read on.   Of course, these are the same people that want to make all the kids say "Under God" in school.

CA1: let’s get something straight: land use controversies usually lack constitutional dimensions

Clark v. Boscher, No. 06-2473.  This is a suit under 42 USC 1983 against a mayor and city counsel that didn’t grant the plaintiffs permits to develop their land.  It was kicked under FRCP 12(b)(6).  The First says that regular land-use controversies don’t really rise to the level of substantive due process claim, and this is just about as regular as it gets.  Likewise, the equal protection claims based on the fact that other developments got permits, because, it turns out that those other developments were considerable different.  As much as I hate to say it, I feel sorry that the town had to defend against this.

Free legal search engine outperforms Westlaw?

Robert Ambrogi's LawSites points to the Preycent legal search engine, which aims to out-perform commercial search engines in searching for legal resources in the public domain.  For the life of me, I don’t understand why blogs link to Westlaw versions of public domain cases, unless, of course, this is just another attempt to remind the remaining dozen Americans that didn’t go to law school that they really have no place reading any legal text and need to rely on silly talking heads in the media to tell them what a statute or decision says (or what their clients want you to think the decision says).

The perfect gift for your favorite lawyer that will give legal cover for anything in your family

Thumbscrew & Rack: Torture Implements in the 15th and 16th Centuries by George Macdonald.

It is a “...well illustrated examination of the instruments of torture used by organized Christianity to honor the God of Love and to convince unbelievers of the truth and beauty of the One True Faith.”

Reprint available on Ebay now.

I have read this book, and I think it includes some things that are not true. Sure, people have tortured each other in the name of religion or “freedom” but I don’t think they really used iron maidens. On the other hand, John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (1977), which was cited in the Second Torture Memo (the one that the administration had someone write for public consumption, but then wrote another one saying that it didn’t really apply, so GS-9s can torture away, anyway), is a much more scholarly approach. Because it was cited by the administration in the memo that they didn’t really mean, it has been reprinted.   Therefore, people can read it and see what sources the administration didn’t rely upon in telling everyone that they think torture is bad while winking and nudging.

(A helpful reader, who is against torture, points to Jean Kellaway, The History of Torture and Execution: From Early Civilization through Medieval Times to the Present available on Amazon.)

Hopefully all the pro-torture presidential candidates will post their torture reading list soon. Since I know that at least 40% of my readers are in favor of torture, and I respect you’re their opinions, I ask that you post the books you used to get some historical perspective on how to torture people in the comments.

Gift wrapping is available.

CA1: another Puerto Rican political discrimination case

Maymi v. PR Ports Authority, No. 07-1157.  This is a political discrimination claim by an attorney in Puerto Rico.  The salaries are given, and you might note that they are less than lawyer in large firms make.  The First amendment claims fail because the First says she was grousing about the operation of the office, rather than matters of public concern.  The First says that there was no evidence of a personal vendetta.  She has to proceed on a substantive due process claim, and since she was demoted, the First says that is not sufficiently shocking to the conscience.   

Finally, the plaintiff loses on a “conspiracy” to violate her civil rights because she didn’t produce evidence of that stuff.

CA1: partial exhaustion of discrimination claims makes for bootstrapping fun

Franceschi v. US Dept of Veterans Affairs, No. 06-2677.  This is a case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. essentially alleging age discrimination and retaliation.  The problem is he got a partial right to sue letter after he filed suit.  The EEOC accepted one of his claims.  The court writes “The EEOC's letter does not explicitly tell Franceschi that he was prohibited from suing in federal court on Claim A until final action had been taken on the whole complaint, but such a prohibition is clearly contemplated in the applicable regulations [29 C.F.R. § 1614.107(a)]. The retaliation claim doesn’t require exhastion, but “Yet where, as here, administrative remedies have not been exhausted with respect to any of the other Title VII claims in the civil action, there is nothing properly before the court to which the retaliation claim may be bootstrapped.”  So the First affirms, nothing that the dismissal is without prejudice to properly brining them. 

More Second Circuit Clerk's Office hijinx

Norm Pattis tells a story of the Second Circuit’s Clerk’s Office losing his briefs.  A couple of times.  It reads, in part:

My client has two appeals against the same party arising out of one set of facts. We filed one notice of appeal in the District Court. We paid one docketing fee. We filed one set of preliminary papers. And ... somehow ... two dissimilar docket numbers have been generated with papers and pleadings apparently randomly assigned to each docket number.