Appellate Law & Practice

CA1: suing non-parties to arbitration agreement, doesn’t get around mandatory arbitration

Sourcing Unlimited v. Asimco International, No. 07-2754 holds that a corporate signatory to a written partnership agreement that requires international arbitration of their commercial disputes may not escape arbitration of such disputes by naming as defendants two non-signatories, on the basis that there was no written agreement to arbitrate with those defendants. 

The First explains that it has jurisdiction under 9 U.S.C. § 16(a)(1)(C), even though the party requesting arbitration isn’t a party to the arbitration agreement, because even though there was no written arbitration agreement, the Federal Arbitration Act really favors arbitration and it wouldn’t be right to make jurisdiction depend on whether there was a writing.  It also concludes that it jurisdiction doesn’t depend on whether the moving party asked for a stay of proceedings for arbitration or a dismissal.

On the merits, the First notes a circuit split and explains that Chapter 2 of the Federal Arbitration Act implements the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Sept. 30, 1970, 21 U.S.T. 2517, T.I.A.S. No. 6997, reprinted at 9 U.S.C.A. § 201, at 511.  Then it applies the doctrine of equitable estoppel and holds that because all of the non-moving party’s claims “ultimately derive from benefits it alleges are due it under the partnership Agreement.”  So, the arbitration, if it happens, will happen in China.  (Insert Tibet reference here.)

CA1: Columbian petition denied

Restrepo Ruiz v. Mukasey, No. 07-1783.  This is an asylum and  political persecution case.  The petitioner is a Columbian who was anti-FARC and a member of Columbia’s conservative party.  FARC seems to have done some bad things.  However, Selya says that her “persecution” wasn’t really because she was part of a social group with immutable characteristics.  Selya says that the evidence is that the hard times the petitioner experienced were motivated by “greed” or a desire on the part of the FARC members to avoid capture.

CA1: Qualified immunity for political discrimination

Lopez-Quinones v. Puerto Rico National Guard, No. 07-1976.    Going off my handwritten notes here, this is a qualified immunity in political discrimination case (and the dissent by Torruella, points out that the First Circuit leads the nation in political discrimination cases).  The plaintiff was worked for the Puerto Rican national guard.  While he supervised 30 or so people, he really didn’t make policy.  Applying Elrod v. Burns, 427 U. S. 347 (1976), the First Circuit says that no, this wasn’t a policy-making position, and therefore he couldn’t be discriminated against on political grounds. Okay, so he was victimized.

But, the First says that the defendants are entitled to qualified immunity.  (I find it very strange that the Victims’ Rights Industry never seems to get to upset about qualified immunity allowing people that violate other peoples’ civil rights to be immunized.)  Why?  The plaintiff didn’t show any caselaw that would have put the defendants on notice, and although the legal test is whether the duties were “policy-making” or not, there is some caselaw which might have confused people as to whether the fired person’s title id dispositive.  Torruella says, essential, “Duh!  Of course they knew they politically discriminating again him, and, like, everyone knows that political discrimination against non-policy-making supervised was wrong.”

I would like to add one note here.  While Torruella is correct that the First probably is generating the most political discrimination caselaw (almost all of it from Puerto Rico), many of the cases are disposed of on summary judgment because the lawyers screwed up.  This wasn’t one of them

CA1: Photographic exploitation of a minor with a twist: the federalization of sex.

US v. Ortiz-Graulau, No. 06-1768.  The First Affirms a conviction under 18 U.S.C. § 2251(a) (“exploiting a minor for the purpose of producing the photographs.”) There was a guilty plea to a 18 U.S.C. § 2252(a)(4)(B) (2000) (“exploiting a minor for the purpose of producing the photographs”) charge.  Here is the twist: the relationship between the “exploiter” and the “victim” was legal under local law (they were not married, and “permission” would have been required to have legally wed.  In fact, they lived together as a couple, and apparently took pictures of their activity as a couple.  She just happened to be quite young.  So, because this kind of relationship is completely alien to the judges and clerks of the First Circuit, it finds a away to affirm and send the guy to jail as a child exploiter for fifteen years.  (I put some important stuff about sentencing at the end.)

The defendant argues that the purpose of the photographs was not to “traffic in child pr0n” but rather to “memorialize their intimate relationship....” and it was unfair that he couldn’t tell the jury that his relationship was quite legal.  The First figures that because there was a big difference between the couple “38 versus 14... and the fact that Ortiz participated in some of the sexual contact and admitted to taking the photographs (or at least many of them), the jury could reasonably infer that it was Ortiz who instigated at least some of the conduct.”  Somehow I seriously doubt that the First would reach this issue if Ortiz was a “cougar” and the defendant was whatever you call a young man that chases older women.  Is that a "Cougee?"  (You know.. like "donor" and "donee"?)

The First then keeps saying that at least some of their conduct wasn’t really “intimate” (in the sense that people that like each other were “intimate”) but rather at least some of it was conducted in order to take pictures of it and a “a jury could infer that at least some of the sexual conduct occurred in order to make a depiction of it.”  Of course a jury could infer that: the jury wasn’t told that their relationship was legal under local law.

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Start your Monday with the remix of O'Reilly

Hey… rarefied appellate practitioners….

Start your Monday with the Bill O’Reilly Flipping Out dance remix.

CA1: arbitration award affirmed

UMass Memorial v. United Food and Commercial Workers Union, Nos. 07-2527; 07-2528.  The hospital lost an arbitration (against the union).  The hospital went to the District Court, seeking to vacate the award.  This seems to be a dispute about whether the statute of limitations was followed because of a dispute about whether incidents were “episodic” or “continuous.”  The District Court noted that the arbitrator’s decision could be construed two ways.  But, the First says that it is the “result” not the “reasoning” that is what the District Court should be analyzing.  An award of fees in favor of the union is affirmed. 

CA1: PURPA case barred by SOL (and Steel Co issue)

Greenwood v. NH Public Utilities, No. 07-2322.  This case begins with “This case was brought by the owner of a small renewable hydroelectricity producing company.” So, he loses.

Before getting to the energy nerdery, the First has to explain how it will jump over the jurisdictional issues It writes:

While we would ordinarily reach the jurisdictional question first, we choose to resolve this case on other grounds. Although the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998), generally barred the practice of "hypothetical jurisdiction," this circuit has treated Steel Co.'s admonition as having limits. See McBee v. Delica Co., 417 F.3d 107, 127 (1st Cir. 2005) [our coverage here]; Parella v. Ret. Bd. of the R.I. Employees' Ret. Sys., 173 F.3d 46, 53-56 (1st Cir. 1999). This court has consistently interpreted the Steel Co. rule as applying in its strict form only to issues going to Article III requirements.

Got it?  Steel Co. v. Citizens for a Better Environment only applies when the First Circuit says it does.

Anyway, this is a Public Utility Regulatory Policies Act ("PURPA" or "the Act") of 1978, 16 U.S.C. § 824a-3 case.  The New Hampshire Public Utilities Commission rescinded a 30-year rate agreement because “ It concluded that it had made a mistake in the 1985 order, and that it had not, as PURPA and the FERC rules required, treated Greenwood's three [qualifying cogeneration and small power production facilities] in a manner ‘consistent . . . for facilities that are similarly circumstanced.’” Rather than appealing to the state Supreme Court or petition FERC for an enforcement proceedings, seventeen years later, the plaintiff asked the District Court to enjoin the commission from enforcing the change, effectively reinstating the old rates.  The District Court issued the injunction.  The First reverses, on statute of limitations grounds and notes that the plaintiff is the “of a small renewable hydroelectricity producing company.”

This case was brought under 28 U.S.C. § 1331, there isn’t a Federal Statute of limitations, so the First chose N.H. Rev. Stat. § 508:4, because the First says that this claim is akin to “New Hampshire law claim of tortious interference with contractual relations.”  But, the accrual date isn’t a matter of federal law.  It also rejects the idea that these claims are analogous to breach of contract claims.  Arguments about equity fail, because tolling the statute of limitations, apparently, would adversely impact third parties.

CA1: plea was valid and entrapment fails

US v. Otero, No. 07-1555 holds that in a “Rule 11" (i.e. a change of plea) proceeding, a defendant was “aware of the intent element of the drug-trafficking offense” even though the judge didn’t read it out loud.  He raises an “entrapment” argument, but because he plead guilty and there was no real chance that he would succeed on that defense, that fails, too.

CA1: SEC wins something

Duggan v. SEC, No. 07-2494 (unpublished).  I think this is a FOIA request.  The opinion reads, in relevant part “The Securities and Exchange Commission made an adequate showing at summary judgment that it had conducted a search that was reasonably calculated to disclose requested documents....The appellant could not rely upon mere innuendo and speculation to overcome that showing....Finally, the appellant made no showing that the district court abused its broad discretion in ruling on his discovery motions.”

Let the blabber start on the Marriage cases

This blog is for ethical lawyers only.  As an ethical lawyer, you will have already read In re Marriage Cases (if you did not, you are not ethical). If you have not read that case, then you are not an ethical lawyer and rather than breath air like a mammal, you malpractice. 

Anyway, Bill Mears of CNN reports that:

An appeal to the U.S. Supreme Court is likely. The federal high court has never addressed the question of same-sex marriage.

Why did he say that? Did the California Supreme Court rely on the United States constitution?  Did Mr. Mears even read the case?

Well, did he at least read Footnote 28:

Plaintiffs base their constitutional challenge in this case solely upon the
provisions of the California Constitution and do not advance any claim under the
federal Constitution. (See Cal. Const., art. I, § 24 [“Rights guaranteed by this
Constitution are not dependent on those guaranteed by the United States
Constitution”].)

So, why does he think that an “appeal” to the United States Supreme Court is likely?  How could someone rise to the exalted rank of “producer” at CNN without at least quoting footnote 28?