Appellate Law & Practice

CA1: at sentencing, restitution amounts are different than intended loss amounts

US v. Innarelli, No. 06-2400. After pleading guilty to a “land-flipping” scheme (which seems to be more like a mortgage scheme) that was perpetrated by, amongst other people, a lawyer.  But, the First clarifies some areas of the guidelines that I thought were clear.

Where one starts with a base level of six under  U.S.S.G. § 2B1.1 (a)(2), one goes to the table in that guideline.  2B1.1 cmt. n.3(A) says that for purposes of the guidelines, this should be the greater of “intended loss” (or “the objectively reasonable expectation of a person in his position at the time he perpetrated the fraud, not on his subjective intentions or hopes”) and “actual loss.”  But this is not how to calculate restitution amounts under the Mandatory Victims Restitution Act ("MVRA") 18 U.S.C. § 3663A(a), (c).  The purpose of restitution, the First notes, is not to punish, but to make victims whole.  Their emotional hurt and stuff like that doesn’t factor into it.  So, it gets remanded for that recalculation. 

On top of that, the sentence was reasonable.

CA1: another deemed admission

CMI Capital v. Gonzalez-Toro, No. 06-2623.  It seems that many oppositions to motions for summary judgment do not specifically counter the statements of facts as required by local rules.  This is called the “anti-ferret” rule. 

Procedurally, the First points out that if a District Court deems facts admitted, it is bound by that order, unless the order is an abuse of discretion. 

The underlying disputes resolve around the liability of the “conjugal partnership” for certain torts.  The First agrees (applying Puerto Rican law) that the torts were committed for the benefit of the partnership.  Likewise, liability also attached to the wife, because she didn’t contest many of the facts, which essentially meant that she helped her husband carry out many of the relevant activities.

CA1: the use of timebarred discrimination and remedies for mixed motive discrimination in the US Marshal’s office

DeCaire v. Mukasey, No. 07-1539.  I thought this was an immigration case.  But it is far more interesting.  A deputy US Marshal claims that she was discriminated against on the basis of “gender and retaliated against her after she filed complaints with the Equal Employment Opportunity office.”  The District Court found that yes, she was discriminated against (and the government’s neutral reasons were not credible) but the Marshal’s “hostility was motivated by his perception that DeCaire was disloyal to him personally, and not by gender animus or retaliation.”

Most of the events happen in the various courthouses in the District of Massachusetts, and I am sure that a good 7 of my 9 readers will consider this case to be juicy gossip.  However, I don’t really care about that stuff, so I skipped over most of the facts.  (Note: I do not know any of the parties personally.)

CA1: The Clery Act v. defamation claims by fratboy

Havlik v. Johnson & Wales University,  No. 07-1879.  The First roars back to life.  In this case, the plaintiff, a student, claims that a “crime alert” issued by a university pursuant to The Clery Act, 20 U.S.C. § 1092(f) (the Act), which “requires colleges and universities that participate in federal financial aid programs to notify their constituent communities of certain reported crimes” was defamatory.  The First holds that schools enjoy a “qualified privilege, stemming from its duty under the Act, to publish the crime alert” see Ponticelli v. Mine Safety Appl. Co., 247 A.2d 303, 305-06 (R.I. 1968).  It rejects the notion that the  Clery Act doesn’t actually impose such a duty based on an analysis of the geographic scope of the act, but the First concludes that what matters is whether the defendant’s ascertainment of his duty to speak was objectively reasonable.

Read on for the god, country, and Apple Day!

CA1: Title IX, and private rights of action and "deliberate indifference" to sexual harassment

Fitzgerald v. Barnstable School, No. 06-2596 (10/5/07).  This is an elementary-school peer-on-peer sexual harassment case.  But, the First holds that the school officials responded to the incidents when reported, and therefore didn’t violate the law.  In this case, the police department launched a concurrent investigation and eventually found that the “victim” wasn’t credible. 

The First explains that Title IX “does not make an educational institution the insurer either of a student's safety or of a parent's peace of mind. Understandably, then, ‘deliberate indifference’ requires more than a showing that the institution's response to harassment was less than ideal.”  I always thought this was axiomatic.   

The First, however, rejects the District Court’s rationale that “Title IX liability only attaches after an institution receives actual notice of harassment and the institution subsequently "causes" the victim to be subjected to additional harassment.”  Instead, the First says that the inquiry must be broader, and the court must inquire as to whether the school’s response was adequate, though some deference must be paid to the school’s balancing of its duties to everyone (including the accused). 

The First bifurcates its 1983 analysis into a “deprivation of constitutional rights” and “deprivation of statutory rights” analysis.    You should look below the fold.

Plaintiff seeks recusal of four justices of Texas Supreme Court

Here’s a copy of a motion to recuse four justices of the Texas Supreme Court, on account of what the mover describes as a defense bias in tort cases. Comments, anyone?

Download Texas Recusal Motion (PDF, 391K)

CA1 and CAFED: No relief for the really screwed by erroneous imprisonment

An alert reader (that has nothing to do with the case) points me to this unpublished case from the Federal Circuit.  As avid readers may know, “Bolduc v. US, No. 03-2081, holds that District Courts lack jurisdiction under the FTCA for what amounts to a case of mistaken identity resulting in the plaintiffs spending eight years in prison” (our coverage from March 23, 2005 here).”  Today, in an unpublished decision, a Federal Circuit panel splits (what’s up with that?) as to whether a claim under 28 U.S.C. §§ 1495 (damages for false imprisonment) and 2513 for his unjust conviction and imprisonment is timely by six days.  Read the case.  This guy gets no satisfaction anywhere.  All of his arguments as to why the statute of limitations are tolled, or the case was constructively transferred are rejected.  But, the dissent argues that the record isn’t clear as to exactly why his conviction was reversed.

CA1: More on Comcast arbitration – everything to arbitrator, but SOL

Anderson v. Comcast Corporation, Nos. 06-2165, 06-2203.  Remember Kristian v. Comcast, Corp., 446 F.3d 25 (1st Cir. 2006) (our coverage here), which held that although Comcast could bring disputes to arbitration, various parts of their Comcast-customer agreement were severed (including the one prohibiting class actions) because they violated public policy?  Well, the issue comes up again.  This time, a plaintiff came to the state court and the action was removed to District Court, and the District court only compelled arbitration after “severing provisions in the arbitration agreement prohibiting attorney's fees, double or treble damages and a class action remedy in the arbitral forum. It also specified that ‘the arbitrator will have the power to determine the validity and applicability of the agreement's one-year statute of limitations.’” The First decides, however, that it is the court that will decide the statute of limitations period, and those statutes of limitations periods are invalid as to Massachusetts’ unfair trade statute.

Turn off the TV and keep reading.

CA1: pain and suffering availability (but not reasonableness) should be certified

Muniz-Olivari v. Stiefel Laboratories, No. 06-1944.  This is a fairly routine breach-of-employment contract case (based on an oral promise). In fact, it looks like a 1L contracts example.  The plaintiff won on most issues, except, the First notes that the issue of whether “damages for mental anguish and suffering are recoverable under Puerto Rico law in breach of employment contract actions should be certified to the Supreme Court of Puerto Rico.”  But, the First says that the jury’s findings on how much they suffered were not so high as to require a remittitur (and the First looks to analogous caselaw to make that determination).    As a matter of procedure, the First directs the District Court to certify the issue, and formulate the question.

The District Court’s instructions on burdens of proof and weighing the evidence were somewhat muddled, but the First says that they are good enough.

CA1: it wasn't mail fraud, and stop asking for more discovery

Sanchez v. Triple-S Management, No. 06-1925 affirms a grant of summary judgment to the defendants in a civil RICO case.  The plaintiffs lost a number of initial procedural skirmishes, and finally were faced with an Order to Show Cause why summary judgment should not be granted against them.  The plaintiffs essentially responded that they needed experts to analyze the documents (related to the insurance industry) they had, but in doing so they deviated from their prior RICO theory and into a theory which required pleading with particularity under FRCP 9(b).  While the First acknowledges that summary judgment on the court’s own motion is not a road to be traveled lightly, it concludes that the First didn’t err because: 1) there was enough discovery that the parties probably could understand the material facts; and 2) there was an opportunity to be heard on whether there were triable issues of material facts.  In this case, the District court looked right at the testimony of the plaintiffs in their own depositions.  Substantively, look at “Mail or wire fraud [they require] proof of (1) a scheme to defraud based on false pretenses; (2) the defendant's knowing and willing participation in the scheme with the specific intent to defraud; and (3) the use of interstate mail or wire communications in furtherance of the scheme.”  But, substantively, the best the defendants can muster is a “failure to disclose” and in the First that isn’t enough for mail fraud.