Appellate Law & Practice

CA1: Getting an evidentiary hearing in a service fight

Blair v. Towler, Nos. 06-1626, 07-1258.  This started as a fairly standard “cops beating the crap out of someone case.” “In an initial action, after the petitioners filed an amended complaint, the district court granted the defendants' motions to dismiss, without prejudice, for failure to perfect service of process.”  They appealed that, and requested a stay while they tried again.  Then they refiled and re-served.  “Ah ha!”  The defendants say, the action is time-barred.  The District Court also denied discovery on the issue of service and an evidentiary hearing, saying that they were “grasping at straws.”

So, both appeals are consolidated.  I bet you want to know what happens.  If you really do, you should click on the link that appears below this text. Thank you.

CA1: 1983 state action failures are not a matter of subject matter jurisdiction

Alberto San, Inc. v. Consejo de Titulares, No. 07-1605.  While this case involves an office condo, the complaint included 1983 claims as well as claims that various statutes were unconstitutional.  The District Court dismissed for lack of “subject matter jurisdiction.”

The First says this isn’t the way to do it.  The First says that a 1983 claim that is dismissed for a lack of a state actor is a merits issue.  However, the First says that the 1983 claim fails because they didn’t actually state a claim in the complaint.  (This case provides a good guide to how to plead 1983 actions where there is not “direct” state actions.)

On the other hand, the Declaratory Judgment Act, 28 U.S.C. § 2201 doesn’t help, because it requires a some other theory upon which the defendants could prevail.  However, the court reverses the grant of attorneys fees.

CA1: dismissal for want of prosecution affirmed

Gulla v. Dennehy, No. 07-1936 (unpublished).  Case was dismissed for want of prosecution after District Court gave a prisoner a few changes to amend his complaint.  The plaintiff claims that he was “incapacitated” during the time period in question, the First does not buy it.  I wonder why they said they “carefully” considered the arguments made, when there is no indication that they even addressed his arguments point by point. 

CA1: Farmers’ due process claims fail

Perez-Acevedo v. Rivero-Cubano, No. 06-2633.  This is a corporate 1983 action by some Puerto Rican poultry farmer.  In Puerto Rico, the commonwealth allowed farmers to join a “nucleus” which allowed them to use a trademark.  Nucleus membership conferred other benefits such as loan guarantees and tax credits.  But, some farmers didn’t want to join, thinking they could do their own promotion.  The case was dismissed on a judgment on the pleadings. 

Regarding the procedural due process argument (that the District Court strangely did not address), the First says that 1) one property right doesn’t actually involve farmers; and 2) the other one (dealing with financial assistance) wasn’t property briefed, and even if it was they didn’t really claim that Peurto Rico failed to follow its own APA.

CA1: ah, the great pro se lawsuit

Swan v. Barbadoro, No. 07-1453.  Guy was convicted of some tax stuff.  Then he sues the judges and prosecutors under Bivens.  Then he sues under RICO.  You know where this is going (or went).  In the First he moves for everyone in the First to recuse themselves.  So, the First has to explain how Heck bars further litigation impugning the underlying convictions. 

CA1: Cops not entitled to qualified immunity for failed drug bust and massive waivers

DeMayo v. MA State Police, No. 07-1623 reverses a grant of summary judgment on the basis of qualified immunity (and a denial of a for judgment motion on the pleadings) in a Bivens action.   The individual cop (along with other DEA agents) were looking for drugs in UPS boxes, and the cop pretended to be a UPS man.  While the addressee’s father was in the process of signing for the package (i.e. only up to his first name), the cops moved entered the house and “conducted a brief protective sweep.”  They found a frail-looking woman.  The signing didn’t show ID to the officers.  The officers eventually issues a summons, seized the package, and said that they would obtain a search warrant for it.

Now get this. The package didn’t contain drugs. Also, the cops all didn’t even brief (before the District Court) the issue of whether the protective sweep was legal or not, and instead concentrated on the initial entry. The First isn’t buying this, and it doesn’t let them switch their theories on appeal.

Why don't you keep reading? 

 

CA1: 6(b) motions and tenure termination hearings

Jackson v. Norman, No. 07-2382 (unpublished) grants a summary disposition in a 1983 case in which the plaintiff claims that “his termination from employment as a tenured professor at the Massachusetts Bay Community college ("MBCC") violated his due process and equal protection rights.”  The First looks at the procedures employed by the college, and says they looked good enough.  There is an issue of “notice” but the plaintiff seems to be making the argument that since the hearing officer found that he wasn’t entirely clear “on notice” as to what his duties were, he didn’t have “notice” in the due process sense of the word.  Obviously these are different issues.

An equal protection “class of one” argument is rejected, since there was a rational reason to terminate him.

But, there are a couple of civil procedure issues.  The state filed its answer late.  He moved for default.  The District Court let them do this under FRCP 6(b) calling the neglect excusable. 

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.