Appellate Law & Practice

CA4: Padilla and mandates

The Fourth Circuit’s order on Padilla, as discussed in the SCOTUSblog is interesting for two reasons: 1) it indicates that maybe the 4th thinks that the government was being disingenuous in its arguments that lead it to conclude that Congress told the president it could do whatever the heck it wanted with Americans or anyone, anywhere; and 2) it indicates there is a possibility that, if the government’s motion is granted, mandates must be recalled if the winning party in an appeal acts inconsistently with its arguments.   I didn’t think it could biologically happen, but it seems that the Department of Justice has annoyed the Fourth.

And, of course, the big issue is: if the Fourth recalls its mandate, likely any precedential effect evaporates, and if the SCOTUS finds that the issue is moot, the government (it seems) has nothing.  (Except a defendant with speedy trial claims in the 11th circuit, and a bunch of inadmissible evidence?)

The text of the order appears below the fold.

CA1: ERISA

Madera v. Marsh, No. 05-1092 is an ERISA case which concludes that the plaintiff didn’t exhaust his remedies within the plan.  He had claimed that his firing "for cause" was merely a pretext used to deprive him of the severance pay he was due under the Plan.  The court rejects a futility argument, and one that this isn’t an ERISA claim, but a “contractual” one (because ERISA has rather preemptive effect).

Naked assertion of executive power

The administration of George W. Bush has repeatedly sought to increase the power of the executive branch and to free it from judicial and / or Congressional oversight.  Two decisions issued by federal appellate courts yesterday, Padilla v. Hanft and United States v. Scott, are great examples of such attempts, even though they address the issue in different contexts.  In Padilla (laws of war), broad executive power is reaffrimed, while in Scott (Fourth Amendment), it is appropriately circumscribed. 

PADILLA V. HANFT

In Padilla, the Fourth Circuit concludes that Congressional Authorization for Use of Military Force Joint Resolution ("AUMF") permits the President to designate an American citizen captured on American soil as "enemy combatant" and to detain him militarily.  Taking a cue from the plurality opinion in Hamdi v. Rumsfield  (which held that an American citizen that joined enemy forces and was captured on a field of battle could be so detained), the court concludes that same reasoning applies to Padilla, who was arrested in Chicago airport with a "dirty bomb."  (UPDATE:  according to an article in today's New York Times, the government has now backed away from the "dirty bomb" allegations and is only charging Padilla with planning to use gas lines to destroy apartment buildings.)

Two things should give one great pause when reading the Fourth Circuit opinion.  First, the court brushes aside any distinction between a person captured on a field of battle and a person arrested on American soil.  However, it is far from clear to me that the plularity in Hamdi would automatically equate the two situations (I note that the district court judge in Padilla was of the same opinion).  The plurality describes Hamdi as raising a very narrow set of circumstances.  Moreover,the following passage indicates that the plurality ascribed more importance to the location of the capture than the Fourth Circuit was willing to admit:

"Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. Justice Scalia refers to only one case involving this factual scenario--a case in which a United States citizen-POW (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F. 2d, at 148."

Also, by equating those captured on and off the field of battle, the court ignores one important distinction that underpinned the plurality opinion in Hamdi - the likelihood of an enemy combatant returning to take up arms against the United States.  When one is captured here, there are sufficient means within the civilian criminal justice system to prevent those individuals from returning to the field of battle.

Finally, in re-reading Hamdi, one cannot help but conclude that Scalia & Stevens' dissent is far better reasoned than the plurality on the issue of the "enemy combatant" detention.  The Constitution allows for only two options in case of an American citizen: a prosecution for treason in the criminal justice system or a military trial after proper legislative  suspension of the writ of habeas corpus.  The President has no constitutional power to suspend the "great writ" and the AUMF lacks specificity to authorize suspension of the writ.  Thus, the plurality's approach amounts to "Al Qaeda" exception to the Constitution.

For those further interested in this topic, I recommend a series of articles in the last issue of the Legal Affairs magazine.

UNITED STATES V. SCOTT

In this case, the two-judge majority (Kozinski and William Fletcher) invalidates a search conducted pursuant to a waiver of the Fourth Amendment rights obtained by the State of Nevada from a pretrial releasee in exchange for an OR release.  The majority concludes that while the government can prescribe reasonable conditions for releasing someone on bail or own recognizance, there are constitutional limits on on the government's power to impose such conditions:

"The unconstitutional conditions doctrine [citation] limits the government's ability to exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary.  Government is monopoly provider of countless services, notably law enforcement, and we live in an age when government influence and control are pervasive in many aspects of our daily lives.  Giving the government free rein to grant conditional benefits creates the risk that the government will abuse its power by attaching strings stragecially, striking lopsided deals and gradually eroding constitutional protections."

In an era when our individual liberties are constantly eroding, Judge Kozinski's words are, indeed, refreshing.

The "Bush" view in this case is reflected by Judge Bybee's dissent.  The most troubling aspect of that dissent is Judge Bybee's willingness to equate the rights of pretrial detainees with those of probationers, parolees, and those convicted of crimes on release pending sentencing.   Judge Bybee brushes aside the presumption of innocence by labeling it as only a trial right affecting the burden of proof.   Essentially, according to Judge Bybee, once the government has accused an individual of a crime, he can be treated like a convict.   This position echoes the Bush Administration's position in the laws of war cases: "trust us, these are really bad guys, they have no rights.  Once we say they are bad guys,  the courts and Congress need not worry about it."

As a concluding remark, I note that Judge Kozinski is a Reagan appointee.  That fact alone should tell one how far have we traveled down the road of eroding our constitutional liberties.

Thanks to Howard Bashman at How Appealing for posting the news about these rulings.

Padilla detention upheld

As “predicted” the Fourth Circuit determined that Jose Padilla can be detained indefinitely.  While I am sure our readers are evenly split regarding whether he can be detained/tortured/etc. indefinitely and whether the constitution requires that him to get some sort of trial or due process, the SCOTUSblog notes that the administration didn't get all they wanted:

The Court did not rely upon the President's claim that he has "inherent authority" as Commander in Chief to order the designation and detention of terrorist suspects. Rather, it relied only on the resolution Congress passed in the immediate aftermath of the terrorist attacks of Sept. 11, 2001, authorizing the President to respond. The Supreme Court similarly avoided the "inherent authority" claim when it upheld detention of citizens captured in foreign battle zones in its decision in Hamdi v. Rumsfeld -- so far, the only other case of detention of a citizen named as an "enemy combatant."

"Brandishing" a Firearm Under 18 U.S.C. § 924

A bank robber hands a note to a bank teller that reads:

"Please place $20,000 in this bag. I want old bills. Hundreds and 20s. Do not tell anybody. Do not trip the alarm. I have a gun. Thank you."

In fact, the bank robber did not bring the firearm with her.  Has she nonetheless brandished a firearm under 18 U.S.C. § 924(c)(1)(A)(ii)?  No.  United States v. Groce, No. 04-4112 (4th Cir., Feb. 28, 2004) (Luttig, for Traxler and King, JJ.)

The government first contends that even if Groce is correct that the gun remained at all times in the car, the gun was nonetheless "brandished" within the meaning of the statute. We do not agree. Because the word "presence" is not defined by the statute, the plain meaning and the context in which the word appears provide our best guide to its meaning. See King v. St. Vincent’s Hospital, 502 U.S. 215, 221 (1991)("[T]he meaning of statutory language, plain or not, depends on context."). The statute defines a brandish as occurring when an individual takes one of two courses of action: either the individual "display[ s] all or part of the firearm," or the individual "otherwise make[s] the presence of the firearm known." Because "otherwise" means "in a different way or manner," Webster’s Third New Int’l Dictionary 1598 (1986), the most straightforward reading of the full statute is that the display of all or part of a firearm is one way, of which there are others, by which one may "make the presence of the firearm known." 18 U.S.C. § 924(c)(4). In such a context, the best reading of the word "presence" is the fact or condition of being "in view or at hand," because the fact that a gun is in view or at hand is exactly what the display of a gun makes known. Webster’s Third New Int’l Dictionary 1793 (1986).

Our interpretation is further supported by the requirement that the presence of the firearm be made known "in order to intimidate [another] person." 18 U.S.C. § 924(c)(4). The obvious way of intimidating a person during the commission of a crime is not to make it known that a gun exists somewhere, but, rather, that the gun is present "at hand" such that it could be used.

Id. at *4-5.

CA4 -- ERISA

Yesterday in Tatum v. R.J. Reynolds Tobacco Co., the Fourth Circuit held that pension capital investment plan trustees had a fiduciary duty of prudence under ERISA, notwithstanding the terms of a deal spinning off the tobacco wing of RJR from the Nabisco wing. The plan managers wouldn't let participants invest in Nabisco because the spin-off required the liquidation of the plan's Nabisco funds, and some participants sued over it. Instead of getting into whether the ERISA duty would trump the plan language, the court determined that the plan didn't actually require the elimination of the Nabsico funds, so the suit could proceed, and the district court's Rule 12(b)(6) dismissal was reversed.

CA4 -- It's never good when your argument is labeled "patently without merit"

In United States v. Robinson, the Fourth Circuit dealt with a claim that the district court improperly delayed resentencing after remand to await the Supreme Court's decision in U.S. v. Cotton, 535 U.S. 625 (2002). The court had intially remanded in light of its own decision in Cotton that an Apprendi error required reversal of the conviction. In the interim, the Supreme Court granted cert in Cotton. The district court continued sentencing (on a Government motion) until after the Supreme Court reversed the Fourth Circuit in Cotton. (Needless to say, circumstances were worse for the defendants in the land of Cotton.) On appeal, the defendants argued that the Fourth Circuit's remand mandate didn't say anything about waiting for Cotton, but the court declared "patently without merit" the argument that the district court did not have control over its own sentencing schedules. In addition, granting the continuance was not an abuse of discretion and the resentencings didn't violate the Supreme Court's Cotton decision.

CA4 -- No Constructive Amendment to Money Laundering Indictment

On Friday, in United States v. Savage, the Fourth Circuit affirmed a money laundering conviction over the defendant's objection that the district court's jury instructions improperly broadened the possible basis for conviction. Specifically, the indictment charged that the monetary transaction caused the deposit of the ill-gotten monies, but the instructions defined "monetary transaction" more broadly. The case is nothing remarkable, and Savage didn't object below, so the court's review was for plain error anyway, but the court said that the instruction did not constructively amend the indictment. But I wanted to mention it because it reminded me of a story. Once, during an oral argument, counsel for an appellant trying to overturn a conviction said, "I'd like to turn to the constructive amendment argument..." A judge interrupted him to say, quite dismissively, "An argument of constructive amendment of the indictment is the last refuge of a guilty man." I kid you not. The attorney was floored, and didn't know what to say, and staggered into his argument knowing he had lost. I was pretty surprised that a judge would so blatantly say that he or she wouldn't even consider an entire category of argument -- the clear import of the judge's statement was that there is no such thing as a winning constructive amendment argument. As the Fourth Circuit shows in this case, they are indeed hard to win.

CA4 -- Pre-filing injunction against frequent filer vacated

Just one published opinion from the Fourth Circuit yesterday: Cromer v. Kraft Foods. Donald Cromer was a "frequent filer" of lawsuits and motions against his former employer, Kraft. After multiple warnings from the court that future frivolous suits would land Cromer in hot water, Cromer finally went too far. The magistrate judge handling the case had had enough, and imposed a pre-filing injunction against Cromer, barring any and all filings in any case, and imposing civil and criminal contempt sanctions, including a fine designed as an attorneys' fee award for Kraft (which hadn't asked for it), and a little time in jail.

On appeal, the Fourth Circuit vacated. In short, the magistrate judge's pre-filing injunction was too broad, the "civil" contempt sanction was really criminal in nature, and none of the criminal contempt convictions were reached under the necessary due process requirements.

Two small points. First, in a footnote, the court noted that the magistrate judge's injunction purported to prevent Cromer from filing anything in even an unrelated case before another judge (it was at least limited to that district). The court said it doubted a magistrate judge could bind a district court judge that way in the disrict court's management of its docket. I had never really thought about the scope of a magistrate's injunctive power, so that may be worth consideration sometime. Second, it's clear here that the magistrate just got fed up and went postal on Cromer. I would have expected to see some sympathetic language in the opinion about just how vexatious these frequent filers can be. (Disclosure: I saw my share when I was a staff attorney.) Note also that the court had to appoint an amicus to argue Cromer's side of the case, so he might have been somewhat uncooperative with the appellate court too. I think there are ways to manage dockets and cut down on frivolous filings, and I hope this opinion gives district courts at least a clear indication of what's too much, without making them gun-shy about taking necessary steps.

CA4 -- 12/6

In DeLoach v. Lorillard Tobacco Co., the court had to decide if a settlement could be "reached" at a different time than when it was "entered into." The short answer is yes, under the contract at issue here. A class action settlement between tobacco farmers and tobacco companies included triggers on payments if a second settlement was reached "on or before the day before the first day of trial." Another provision included changes to the amount of tobacco the companies would buy if a settlement was entered into "before the beginning of trial." If you need pointers on the difference between reaching and entering into, and when trial begins, look within. Quickly, reach means a meeting of the minds, a decision to settle, as objectively manifested by the parties. Entered into basically means signed. Although a jury had been empaneled and was waiting to enter the courtroom when the agreement was announced, this was still "before trial," the court held, because nothing had happened yet.

On to a very interesting death penalty case, United States v. Barnette. The issue was the applicability to the Federal Death Penalty Act of Ring v. Arizona, which applied the Apprendi rule to death sentences. Barnette argued that aggravating factors had to be alleged in his indictment. (Actually, there are a lot of other issues in here, and it's worth reading in full, but this was the contentious issue.) Prior panels of the Fourth Circuit almost simultaneously (about ten weeks apart) issued directly contrary holdings: Wills, 346 F.3d 476, held that Ring did not require a FDPA indictment to allege aggravating factors; Higgs, 353 F.3d 281, held that it did. Judge Widener (who wrote Wills) was of the opinion that the panel in Barnette was required to follow Wills, regardless of whether it was right or not. It was first, and that's all that mattered (of course, he still thinks it's right, too). Judge Niemeyer, joined by Judge Michael, wrote the opinion of the panel as to this issue, and held that, under Higgs, the indictment was required to allege the aggravators, but that Barnette's indictment satisfied Ring and Higgs. Judge Widener wrote the unanimous majority opinion as to all the other issues, but part of his opinion was a bitter concurrence on the issue of which precedent to follow.

Readers might remember a recent dust-up in the Fourth Circuit over a similar issue arising in a Suits in Admiralty Act case, McMellon v. United States, 387 F.3d 329. (Here's more on McMellon from How Appealing and Steve Minor's Southwest Virginia Law Blog.) There, the panel was faced with arguably inconsistent panel precedents. Rehearing the case en banc, the court held that panels have to follow the first precedent on the issue (absent something like intervening Supreme Court case law, of course). Judge Niemeyer was the judge who brought the issue out in the McMellon panel opinion and wrote a strong concurring and dissenting opinion from the en banc decision. Judge Widener sounds, to me, pretty heated at Judge Niemeyer's apparent infidelity to very recent en banc instructions. I would say the odds are pretty good that Barnette could likewise go en banc.