Appellate Law & Practice

CA1: First remands for a real resentencing when mandate not followed

US v. Pena-Gonzalez, No. 05-1402.  This case was first before the court in United States v. Rodríguez-Marrero, 390 F.3d 1, 32 (1st Cir. 2004) when it remanded for re-sentencing.  The District Court didn’t hold a sentencing hearing, and instead it “trimmed the original judgment without sentencing him anew” as the government told it to.  (This matters because Booker might allow the defendant to escape a life sentence).

But, the First resolves the issue on the “law of the case” doctrine (the “mandate rule”) part of it, and holds that the District Court didn’t really take the letter and spirit of the mandate seriously, and the District Court should have read the mandate “like a statute.” 

The First then points out that the prosecution – as much as the District Court – is at fault, because it seems to have tricked the court into thinking that it had made a finding (that the crime was in furtherance of a drug conspiracy) that would subject him to life sentence. The First says that this trick deprived the defendant of his ability to allocute at sentencing which is “scared.”

CA1: race discrimination case affirmed

Holloway v. Thompson Island, No. 07-2207 affirms a grant of summary judgment in a race discrimination case because the defendants came up with a non-discriminatory motive.  The issue was somewhat complicated by the fact that he had a previous settlement that called for arbitration of disputes arising from that settlement.

CA1: accrual of warranty claims under the UCC

Trans-Spec Truck Ser v. Caterpillar Inc., No. 07-1476.  This is a long case, which comes down to “the accrual and statute of limitations provisions of the Uniform Commercial Code of Massachusetts to breach of warranty claims.”   Mass. Gen. Laws ch. 106, § 2-725(1) (four years from delivery).  The exception is in (2) for future performance contracts "the four-year clock begins to tick when the breach is discovered or should have been discovered, or when the explicit time period expires, whichever occurs first."  Taking an Eerie guess, the First concludes that a repair promise is a promise for future performance, such as a service plan.  However, the First says that this service plan (and most) are not actually warranties, but rather a promise to fix things that break.  The plaintiff also fails to make an equitable estoppel argument.

Reviewing a grant of summary judgment on a negligence claim, the First holds that a disclaimer of negligence claims wasn’t unconscionable, and besides, the plaintiffs could have sued under the contract theory.

Procedurally, the First explains how a 12(b)(6) motion can be converted into a 56 motion.  The First figures out that because it wasn’t converted to a motion for summary judgment, the District Court and the First Circuit need to only address the pleadings.  The First goes on to note that a District Court judge can “sparingly” consider matters not before the magistrate.  See 28 U.S.C. § 636(b)(1).

A late motion to amend the pleadings to include an unfair trade claim is denied.

CA1: A lesson in 1988 attorneys fees

Torres-Rivera v. Espada-Cruz, No. 07-1806.  This is another case dealing with how to determine attorneys fees under 42 USC 1988.  The plaintiffs take this appeal because they argue that they were not awarded enough.  The First sides with the plaintiffs in large respects.  Because there are multiple litigants as well as some default judgments, the issues get complicated.

First, the First says that whatever the reason, a District Court needs to articulate its reason for awarding or not awarding fees on the record.  Second, in multi-defendant cases, the First must determine whether fees are apportionable or awarded jointly and severally.  Usually things are apportioned by time.  Sounds easy?  Well, in this case the District Court apportioned by “relative liability.”  The plaintiffs don’t like that because one defendant mounted a vigorous defense and another one defaulted. 

The First says the rule in this case is thus:

The rule that we glean from the case law runs along the following lines. Where apportionment is indicated, the choice among available options generally lies within the district court's sound discretion. ...  But when the time required to litigate against one defendant is grossly disproportionate to the time required to litigate against another defendant and the two defendants are not in privity, then the time expended method of apportionment should be used.

A global reduction of 15% “global reduction” because of vagueness of time entries.

Finally, a denial of a supplemental petition for fees for litigating the fee petition is called an abuse of discretion because the District Court didn’t give its reasons.

CA1: railroaded jailhouse lawyer can sue where he was railroaded to

Hannon v. Beard, No. 07-2272.  This is a piece of prisoner litigation.  But it is not an easy one.  Let’s see if we can lay out the figures.  Mr. Hannon (“the quintessential jailhouse lawyer”) was convicted of a crime in Pennsylvania, but was moved to Massachusetts (perhaps in retaliation for his lawyering).  In typical state-sponsored style, his legal materials “disappeared.”  In this lawsuit he sued some people in Pennsylvania (the Secretary of the Pennsylvania DOC and a librarian) as well.  Naturally, after he sued in Massachusetts, he was transferred again.  This guy does an awful lot of traveling.

Anyway, the District Court held that it didn’t have jurisdiction over the Pennsylvania defendants because, even though they sent him to Massachusetts, they didn’t transact business there.  So, it all comes down to the the Massachusetts long-arm statute, which is as wide as the constitution allows.  Mass. Gen. Laws ch. 223A, § 3(a)  (“[a] court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s transacting any business in this commonwealth.”).

The First sides with Hannon, and regarding the Secretary of Corrections, it writes:

The contacts that Beard would have had to make to arrange for Hannon’s transfer from Pennsylvania to Massachusetts are sufficient to constitute “transacting business” under the broadly-construed long-arm statute. The district court erred when it reasoned that because “[t]he decision to transfer plaintiff . . . occurred in Pennsylvania,” it lacked jurisdiction over Beard.

CA1: deputies sue sheriff under 1983 and win

Davignon v. Hodgson, No. 06-1191.  This is a 1983 action – by union corrections officers claiming that the First Amendment rights were violated – against the sheriff.  At trial, the officers won a small victory.  The sheriff appealed. 

The most interesting issue if how the First deals with an inconsistent verdict claim, as the 1983 verdict seems to have conflicted with the state law claims.  The First analyzes it and says that yes, the jury could find such a “strained” set of facts.

Strangely, the sheriff seems to have overdone the rhetoric against his officers by referring to Supreme Court cases.  But the First explains that most union speech actually is protected under the First Amendment and is, in fact, a matter of public concern.  (The First rejects the invitation to summarily accept this, and instead goes on a very long analysis concluding the same thing.)  Then it engages in a balancing of the interests at stake, and affirms the jury’s verdict.  Likewise, the First there was a “causation” case made out – in that the deputies discipline was caused by the protected activities.  Pretty much the same result is reached with regard to the “freedom of assocation” claim.

Evidentiary claims about admission of an administrative decision (used to show identity), and a reopening to present evidence of lost wages are affirmed. 

Finally, the First rejects some really strongly pro-defendant jury instructions, i.e. “Judicial review of prison officials' actions is very limited.”

CA1: arbitration confirmed

Ramos-Santiago v. United Parcel Service, No. 07-1024.  This is an arbitration appeal of a UPS driver that didn’t deliver some packages.  You know where this is going.  He claims that the arbitration award can’t be enforced, because the arbitrator pointed to the wrong provision of the collective bargaining agreement, but the First says that the arbitrator got it right.  The First also affirms an award of costs to UPS.  Decisionism comments here.

CA1: Industrial Double Jeopardy only applies to final punishments

Zayas et al v. Bacardi Corporation,  No. 07-1950 (4/18/08).  An employee raised a “double jeopardy” argument in an arbitration – essentially arguing that he had been dismissed after already being punished.  The arbitrator freaked out and didn’t address it.  So, by the time it gets to the First, unlike most arbitration fights, review of the concept is not that deferential.  After concluding that there really isn’t any Court of Appeals precedent, and that this is real “constitutional double jeopardy” Selya holds (citing treatises) that “a second sanction only transgresses industrial double jeopardy principles if the first sanction has become final.”  In this case, the employee had been suspended while the employer investigated things.  Even though the arbitrator found that that suspension was not with just cause, Selya says that was a separate claim which failed because the employer didn’t meet his burden.

Finally, Selya says that just because the arbitrator didn’t explain his rationale, no remand is necessary, because on de novo review, the First could affirm on a rationale that isn’t stated by the arbitrator.

CA1: required findings of fact in a bench trial

Torres Lazarini v. US, No. 06-2634 is an affirmance of an FTCA/Medical Malpractice case (resolved by a bench trial) against the VA which is governed by Puerto Rican substantive law.

The big issues seem to be whether the District Court improperly considered prior lawsuits as evidence of the defendant’s character.  The First says that the findings of fact by the judge didn’t bear that out.  Likewise, under FRCP 52(a)  failure to mention one expert wasn’t fatal to the judge’s findings of fact, because it is “clear” that the District Court was really crediting one expert over another.

CA1: a normal restart of questioning Miranda problem

US v. Lugo-Guerrero, No. 06-2745 affirms a conviction.  The big issue is whether un-Mirandized statements were improperly admitted.  The strange thing about Federal Miranda battles now, is judges seem to think that people that don’t properly invoke their right to remain silent (i.e. by requesting a lawyer that they already have on retainer) probably are criminals, anyway. 

Strangely, the District Court judge did not agree with all of the USMJ’s conclusions.  After some waiver machinations, the First concludes “FBI task force agents were not ‘automatically forbidden’ from later resuming the interrogation just because Lugo had earlier declined to make a statement to Puerto Rico police.”  The First then concludes that the defendant’s “right” to cut off questioning was “honored” and he was only questioned by other police later.

A sufficiency challenge is rejected.

A denial motion to suppress evidence of other crimes, on “substantially more prejudicial than probative” grounds is held not to be an abuse of discretion.