Appellate Law & Practice

CA1: EAJA fees available for slow naturalization petition

Aronov v. Chertoff, No. 07-1588.  This is an Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 case.  The government didn’t act on a naturalization petition.  He went to court and the government and Aranov agreed that this should be remanded so he can be sworn in.  He was sworn in as a citizen.  The District Court held that the government’s position wasn’t substantially justified.  Applying Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), the First says that the petitioner was a prevailing party because of course the legal relationship of the parties changed, there was a "judicial imprimatur" for the this change.  What was really going on was a “remand order” rather than an administrative order.

Anyway, getting to the merits, this all seems to involve a question of whether the government must preform a comprehensive “name check” on potential new citizens.  Turns out, it doesn’t.  The government then tries to bring in Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 842-45 (1984), but the First doesn’t like that and notes that even if it could invoke Chevron, “deference to its general policies does not require us to find substantial justification in this particular instance” because there is a statute gives the District Courts jurisdiction to act on slow naturalization petitions, and even the APA tells administrative agencies not to stall. 

Lynch dissents saying that the remand wasn’t a consent decree or anything close to it.  Moreover, the government’s position was substantially justified and name checks are part of the criminal background check.  He then foretells of doom when the government agrees to remands. 

CA1: Selya destroys the writs of corum nobis and audita querela and saves the government from its negligence

Trenkler v. US, No. 07-1678, 07-1679.  When I started reading this case, I thought it would be an interesting discussion of corum nobis.  In many jurisdictions, this writ actually is understood.  But then I realized that Selya wrote it, and whatever happens the defendant is going to lose – even though the defendant used latin.  What most people will want to know is at the end “the writ of error coram nobis, in its modern form, is ordinarily available only to a criminal defendant who is no longer in custody.”  Selya has a special message for all poor people rotting in jail or about it:

...our criminal justice system tolerates a certain risk of error might be of concern to some, but finality is indispensable to the proper functioning of that system.

The defendant (aided by a large, and therefore, morally righteous law firm) has done his best to get around AEDPA.  The First has done its best to turn back such attempts.

What is strange is that after the writ was requested, the government simply ignored an order from the District Court requesting a reply.  This is strange.  Usually the government likes to reply.

Then, after the government neglected to reply (or is that “elected”) the District Court granted the writ on the basis of a defect in the jury instructions, which the District Court found was "fundamental to the validity of the judgment."  It cited the All Writs Act.

After figuring that it has jurisdiction, the First gets to the issue.  However, the First does explain why a case, from the Supreme Court, Pickett's Heirs v. Legerwood, 32 U.S. (7 Pet.) 144, 148 (1833), doesn’t apply because “The Court there explicitly admonished that it was not ‘called upon to decide’ whether the case before it "was a case proper for the application of [the coram nobis] remedy."  Whatever the case, the First finds a bunch of caselaw that says that corum nobis is reviewable, and the Supremes back then were talking about whether it had supervisory power over the writ.  Moreover, the First says, the government has the statutory authority to appeal the grant of the writ.  Looking at United States v. Morgan, 346 U.S. 502, 513 (1954) which says that the writ is a "step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding." the First says that that footnote doesn’t really matter, but what really matters is whether the writ is criminal or civil in nature.  Seyla says “civil” because it would give the government more power to appeal, and therefore it isn’t even time-barred as it under the civil, rather than crimnial deadlines.

What that in mind, Selya says that this is really a 28 U.S.C. § 2255 petition.  Selya concludes that the District Court, in excusing the government’s negligence actually went to the merits, and notes that when late filing is excused the merits are reached.  Then Selya starts putting the nails in the coffin.  He says since 28 U.S.C. § 2255 is so specific it practically eviscerates the All Writs Act’s ability to issue such relief-granting common law writs.  And, he cautions court to “to plot, and then to patrol, the boundaries between section 2255 and the universe of old common-law writs. Otherwise, artful pleaders will tiptoe around those boundaries and frustrate Congress's discernible intent.”  Therefore, Selya (or his intern) concludes that there is no way this poor (as in not a lot of money) can get relief, except for transferring it under AEDPA to the First, as there was no newly-discovered evidence. 

At the end there is some pithy stuff about the “Rule of Law” and all that crap.  Surprisingly, “...our criminal justice system tolerates a certain risk of error might be of concern to some, but finality is indispensable to the proper functioning of that system.”

CA1: does everyone get Brady wrong?

US v. Aviles-Colon, Nos. 05-1384, 05-2039, 05-2040.  In this Puerto Rican drug distribution case, the First remands on a Brady v. Maryland, 373 U.S. 83 (1963) issue as to one defendant.  [Update: SL&P, with guest-bloggers, lives up to its ethical duty to read all cases and comments here in a post entitled First Circuit Affirms Sentences of 35 and 55 Years Imposed Due to Murder Proven by Preponderance Standard]

A year after the trial in this case, a DEA report was obtained which the defendant says is Brady material.  But, the District Court used the wrong standard in denying the motion for a new trial.  t said that the suppressed evidence "does not rise to the level of materiality that would be likely to cause a different result at a new trial."  That isn’t the standard.   The standard is “was a reasonable probability of a different outcome, which is "shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" But, the First says that none of this matters because the information in the reports on their own, could have been used for impeachment since it details a lot of the motives of the various players.

The First also goes through what needs to be shown to admit co-conspirator testimony.  The First explains that under its law 1) government agents are conspirators; and 2) “informing co-conspirators of the activities of the conspiracy's members furthers the conspiracy.” 

As always, the First says that prosecutors should not “appeal to the "jury's emotions and role as the conscience of the community."  But, as always, it really means “go ahead and do it.”  So, it finds that the prosecutor’s comments were not that bad.  That is the usual stuff.  Some of the other claims of prosecutorial misconduct don’t have merit (i.e. saying that they are “fortunate” to have a gang member testify). 

There are a lot of other typical issues, but they don’t really create any new law.  But, for those that practice in this area, this case will be of interest.  Otherwise, there is a spreadsheet at the end, explaining what is up with each case.

CA1: Uganda and late filing

Lutaaya v. Mukasey, No. 07-2328 (7/28/08).  The petitioner is a Ugandan citizen that ran a delivery business that contracted with the government to supply the troops.  Sort of like Haliburton.  Only, when some of the trucks were stolen by the rebels, “Soldiers accused her and Sabeera of cooperating with the LRA. They beat her, cut her with a sword, and raped her,” She came to the US where she filed a asylum application late.  At a hearing there was some discrepancies about the number of soldiers involving in the rape.  The IJ seemed to go quite far in saying that the petitioner wasn’t truthful.  The BIA didn’t go so far, but said she was statutorily ineligible.  The First then brushes off her argument that excusing late filing is constitutional.  Not analysis.  Just string cites.  The withholding of removal claim fails on credibility grounds. 

CA1: Haiti getting better

Michel v. Mukasey, No. 07-2166 (7/28/08) (unpublished) denies a petition for review of an asylum application.  The First says that his past persecution really isn’t that relevant has Haiti is a really awesome place, but in a “general state of disarray.”  Or, in the words of a per curiam court (must likely Judge Selya), “With the levers of power having been wrested from the hands of his antagonists, there is no realistic possibility that the petitioner's pro-Convergence sympathies will place him in the Haitian government's cross-hairs.”

The petitioner appeared to be making a more developed argument about how exactly the BIA should review an IJ, but I don’t think it was taken that seriously. 

CA1: no plea withdrawal

US v. Bates, No. 07-1370 (7/28/08) (unpublished).  A defendant really wants to withdraw his plea.  He had the opportunity to withdraw it at the District Court.  He did not.  The First vacillates as to whether this is a waiver or forfeiture issue, but then says that there was no plain error.  Regrading an Almendarez-Torres v. United States, 523 U.S. 224 (1998) issue, the First says:

As defendant candidly recognizes, his challenge to consideration of his prior conviction on the ground that it was neither admitted, charged in the indictment, nor proved beyond a reasonable doubt is currently "hopeless.

But, at least they don’t call it unethical. 

CA1: A FRCP 54(b) question

Niemic v. Galas, No. 07-1763 (7/28/08) (unpublished).  In this prisoner-health-care litigation, the District Court directed the entry of judgment under R. 54(b).  The problem is that the District Court didn't explain why there was no “just” reason for the delay.  The First says that it “requested” an explanation from the District Court.  (How? By an order? By a phone call.  It doesn't say.)

Despite somehow being able to supplement the record (I guess as a means to knock out some prisoner litigation), the First still isn't impressed with the District Court's explanation, and says that the District Court didn't explain the interrelationship (or lack, therefore) of the defendants.  But, the First says that all in all the claims between the different classes of defendants are not that intertwined, and then blabbers on a bit about how this will reduce judicial expense.

The merits seem simple, and the First says that the defendant-prison-health-care providers gave him enough care. 

The First doesn't seem too impressed with the fact that a 56(f) motion was denied.  The plaintiff argued that his legal papers were “strewn” ransacked by jail guards and “strewn” eveywhere.  But the first figures out why it doesn't matter.

CA1: unless discretion is exercised, the court can't review the discretion

Beetz v. Ambrosi, No. 07-2449 (unpublished).  This is ugly.  The court told the plaintiff to amend his complaint to comply with FRCP 8 and 9(b).  After the initial attorney withdrew, he asked for “at least” 30 days.  An electronic order was entered that said “granted.”  He seems to have complied with that. However, “but due to some apparent docketing irregularities, the amended complaint was not entered on the electronic docket until some months later.”  Obviously one side says “granted” means “30 days” and the other side says it means “zero days.” 

The defendants also argue that the new complaint had the same defects.  But the First isn't going there because it concludes that “We cannot affirm on the basis of a discretion that the district court did not exercise.”  This is an important thing to file away.

So, it is back to the District Court.

CA1: no emotional damage for age discrimination

Collazo v. Nicholson, No. 06-2678 (7/24/08).  This is an age discrimination complaint seeking damages for mental and emotional distress against the VA.  While it was booted on summary judgment, the First says affirms on an alternate ground, saying that the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634.  After going out of its way to show why it thinks that plaintiff is a jerk (which is really impossible to verify one way or the other), the First says that damages for mental and emotional distress are not available.  Only pay and equitable relief. 

CA1: cooperating gullible convicts get what they deserve

US v. Mulero-Algarin, No. 07-1701 (7/24/08).  After the defendant plead guilty and was sentenced he arranged to provide the government some information.  A couple of feds traveled to interview the defendant, but for some reason the interview never happened.  Nevertheless, he thought he had an agreement.  The government thought he was gullible.  “The chief of the office's criminal division rejected his overtures. She took the position that the defendant's assistance had not been "substantial" and, thus, did not warrant the filing of a Rule 35(b) motion to his behoof.”

Selya agrees and the District Court agree.  The guy is gullible.  Gullible people stay in jail.  Only if there is an unconstitutional motive for misleading a defendant can the courts intervene (says Selya).  Therefore, justice is done.

Selya does use a lot of big words, in order to ensure the gullible guy in jail that at least one judge knows how to use a dictionary.  Justice is done.