US v. Acosta-Roman, Nos. 07-1238, 07-1239 dismisses an appeal based on an appeal waiver. The defendant argued that because an enhancement wasn’t a condition of the agreement, that the issue can still be raised. But, the First looks at the agreement, and says that there was an agreement to litigate that issue below, and therefore, because the court adhered to the boundaries of the expected sentences, all is well.
National Union Fire v. West Lake Academy, Nos. 07-2190, 07-2204 (11/13/08). This is a fun insurance coverage case. It is pretty rare that case begins with the words “Fourth-party plaintiff Jane Doe (“Doe”)). Westlake Academy is one of those places that they put “out-of-control” or “moody “ teens “involuntarily.” As seems to be fairly common at these places, one of Westlake’s employees had sex with Doe. Doe became pregnant. And, as usual Doe sued the guy that made her pregnant, West Lake, and people she thought negligently let this happen. The state court action resulted in, among other things, a judgment jointly in the amount of $750,000 based on the negligent supervision claim. It held the employee (and another employee, probably the supervisor) jointly liable.
To begin, the First says that the defendants are not entitled to cross-appeal when they win.
The insurance company wasn’t too happy about this, and filed suit in the District Court for a declaratory judgment saying that the liability policy they wrote didn’t include “acts of molestation.” Though, there was a “sexual abuse endorsement” which they said limited liabile to $300,000. Moreover, they claimed that this was a “wasting” policy in that the coverage would be reduced by the cost to defend. The insured, as usual, answered and filed counterclaims asserting violations of state insurance and consumer protection laws. Then Doe got involved. She essentially was now on the same side as her molestors, and argued that she was standing in their shoes.
Doe says that she was exploited. Not molested. Not abused. The First and the District Court essentially disagree that the “abuse” and “molestation” coverage endorsement applies, because the exclusion for abuse and molestation and the endorsement for molestation have the same scope. Moreover, what went on wasn’t “exploitation” but rather “abuse.” Exploitation would mean turning Doe into a prostitute.
In Re: High Voltage Engineering Corporation, No. 07-2589. Selya kicks this decision off with a pithy saying. Despite the bankruptcy issues, this is resolved on procedural grounds, i.e. that the notice of appeal to the district court was inadequate if it is filed into the bankruptcy petition. Strangely, the bankruptcy court issued an order denying relief in another petition (and, I guess, the petitioners could have appealed from that order). But, they didn’t. Selya ends by saying that they were not consolidated and even if they were, in the First consolidated cases are distinct for appeal purposes.
Puerto Ricans for PR v. Dalmau-Ramirez, No. 07-2700. I am sure that the facts really mean a lot to Puerto Ricans, but it comes down to a question of civil procedure. The District Court dismissed the petition on the basis of a Spanish-language opinion from the Puerto Rican Supreme Court. The First says that this is really bad, because it would make the federal court less uniform.
The court then goes on to concludes that the Rooker-Feldman doctrinedoctrine wasn’t applicable, because this suit was challenging a later action by the Electoral Commission (even though the complaint was very broad), and the English-language version of the Puerto Rican Supreme Court showed that the issues were, in fact, different and there is no evidence that they could have brought their claims in the state proceeding.
Seriously, considering that issues that poor people face in bankruptcy, is this really the issue that needs to be certified? Or is it just a way of telling some firms that their feelings matter? There is some language in here regarding the criteria for certification, but it doesn’t seem too precise or helpful to anyone but a court justify a political decision to certify or not certify. In fact, the First seems to admit that the underlying question involves a “policy” judgment, which really means that the First thinks that this issues is a policy one. So who says courts don’t write policy?
Where, as here, a defendant agrees to waive his right to appeal but then appeals and does not address the appeal waiver in his appellate brief, "he forfeits any right to contend either that the waiver should not be enforced or that it does not apply."
But, then the First says that he substantively waived the issues, and if he didn’t he would still lose because he didn’t properly move to withdraw his guilty plea.
In re Linda Lynn Weaver, No. 08-8046. “The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), Pub. L. No. 109-8, 119 Stat. 23, 202-03. That statute permits direct appeals to the court of appeals, with that court's permission, from bankruptcy court decisions under certain circumstances, including where the bankruptcy court certifies that the appeal satisfies the statutory criteria for permitting such a direct appeal” Alas, the petitioners failed to timely file a notice of appeal, as required by Interim Bankruptcy Rule 8001(f)(1) (for D. Mass), and “no authorization of the direct appeal was sought or obtained from this court, as required by 28 U.S.C. § 158(d)(2)(A).” Okay, this seems pretty easy.
Unfortunately, the First has to take it a bit far and say that the “procedural requirements referenced [a show-cause order] are deemed to be jurisdictional or, rather, mere claims-processing rules... Under [Bowles v. Russell, 127 S. Ct. 2360, 2364-66 (2007)], that determination depends, in turn, on whether the requirements are based on statutes, in which case they are deemed jurisdictional, or merely on court-promulgated rules, in which case they are not.” Problem is: Bowles didn’t say all statutory requirements were jurisdictional. Urgh!
But, then, the First says “Without resolving that jurisdictional question, we exercise our discretion under section 158(d)(2)(A) to deny leave to appeal.” The First then explains how the rules are going to eliminate all these problems.
A Pentagon spokesman said that Delacroix's cause of death—sniper fire while attempting to save an injured Iraqi boy—will be changed to AIDS in the official record.
And speaking of collateral attacks on military things, CAAFlog reports that the (acting) Solicitor General filed a cert. petition in US v. Denedo. On its face, this is a rather inside-baseball military justice case. Seven years after his conviction in Art. II military courts became final (without further appeal), the petitioner asked the military courts for a writ of coram nobis, which was denied. The C.A.A.F. reversed, and referred to the All Writs Act and granted a petitioner a writ of coram nobis, on the grounds of ineffective assistance of counsel. The government did not like that, and argues that the Supreme Court should reverse, because Article I Courts lack the power to exercise this writ. The CAAFlog then points out that the Supreme Court might not even have jurisdiction to review the CAAF, anyway. What a puzzle.
In case you slept through law school, Coram Nobis is the common-law writ used to vacate judgments or orders entered in error. Today, with a plethora of statutes and rules governing vacating judgments, its use is somewhat controversial. We recently covered other coram nobis news here.
The All Writs Act Act, 28 U.S.C. 1651(a), provides that all courts may “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
The government has been looking for a good case to test this issue on. In the past, however, they have not had sympathetic clients, as most of the cases “involving inherent power to vacate judgment” cases coming out of Art. I Courts involved the normal kinds of misconduct by government attorneys. Here, the petitioner is seeking to avoid his conviction so he can stay in the country.
The government argues that “As a statutory court, the CAAF’s jurisdiction is limited to the authority conferred by Congress.” Further, it argues that the petitioner has some remedies, such as a habeas petition in a District Court.
A number of the cases we have dealt with analyzed Clinton v. Goldsmith, 526 U.S. 529 (1999), which reversed the granting of an injunction by the CAAF. The Supreme Court held in Goldsmith that the All Writs Act only allows for issuance of a writ where the granting of the writ is “necessary” or “appropriate.”
So, at some level this might be a fight over what is “necessary” or “appropriate” or at another level, it might be an attempt to lull the Supreme Court into saying that Art. I Courts don’t have the inherent power to vacate their own judgments or that of a court over which they have jurisdiction over.
USA v. Edelen, 07-1189. This case comes down to whether there was a valid appeal waiver. He claims that “his waiver of appellate rights was involuntary and unknowing because he entered into the plea agreement unaware of the potential six-level official-victim enhancement.” The First looks at the transcript and says that he understood what was going on. However, it also says that under United States v.
Teeter, 257 F.3d 14, 24 (1st Cir. 2001), there was no miscarriage of justice.
Soto-Lebron v. Federal Express, Nos. 06-2501, 06-2519. A guy was fired by FEDEX. He claims Fedex did slandered and libeled him. He gets a jury verdict of $7 million. The District Court saves Fedex a bit, and then the First helps Fedex some more. Despite the obvious class issues involved in this case, let’s see if there is any law.
Fedex’s “security specialist”, Jose Pérez tried to intimidate the plaintiff into saying that the hair care products he shipped were drugs. It is unclear whether Pérez or the plaintiff went to college or not. Pérez claimed to have been a cop, and tried all sorts of silly cop tricks that the lower classes find fun. Strangely, the recipient of the hair care products received them without incident. Fedex “investigated” and fired the guy anyway. If I were him, I would have discussed the situation while playing golf with Fred Smith, the CEO of FedEx. Wouldn’t that be the more mature way to handle the situation rather than making a federal case and becoming emotionally distressed. Why didn’t he just go work for another law firm like everyone I know would do? After all, the First ends up remanding the damages issue because his testimony regarding damages didn’t show that possible other employers got wind of all the bad stuff that people were saying about him. And, because this is Fedex, not a criminal defendant, such an evidentiary error is not harmless, and even a remittitur couldn’t cure the prejudicial effects. To the First’s credit, they do discuss the law of remittitur.