Appellate Law & Practice

CA1: data-mined prescription information not protected speech

IMS Health, Inc. v. Ayotte, No. 07-1945.  This is a big case.  Essentially pharmaceutical salespeople were using doctors prescription histories (in databases) to generate sales leads and shape their sales pitches.  Then, New Hampshire said that was a bad idea and enacted N.H. Rev. Stat. Ann. §§ 318:47-f, 318:47-g, 318-B:12(IV) (2006) (the Prescription Information Law).   The District Court said it infringed upon speech.  The First says, on the other hand that this law regulates conduct, not speech under, and therefore the statute passes constitution muster.

The First makes a few good points: consumers are not really benefitting from this dissemination of information (because doctors know what drugs they are telling people to take), and New Hampshire was doing its best to try and stabilize drug costs.  The First notes that there are non-commercial uses for these databases that are fairly benign, but includes “law enforcement agencies” as being benign.  It also notes that every year drug salespeople give out a billion dollars in free samples and “the average primary care physician interacts with no fewer than twenty-eight detailers each week and the average specialist interacts with fourteen.”

Now, today I ready that half of all doctors want to quit.  They say that they don’t like the paperwork.  Of course, in private, they say that they don’t like their patients. 

CA1: First bends to approve “Don’t Ask; Don’t tell” on First Amendment Grounds

Cook  v. Gates, Nos. 06-2313, 06-2381.  The First seems to have gone though both facial and as-applied challenges, and ultimately deferred to the government.  There was a dissent.  So, maybe this will go en banc.

Unlike the Ninth Circuit’s Opinion, the First ignores the precedent from the Court of Appeals for the Armed forces in US v. Marcum 2004 CAAFLEXIS 832 (U.S.C.A.A.F., Aug. 23, 2004)  Strange.  Was this on purpose?  Was it an error by a know-it-all clerk?  Or was it the First playing politics?

Since this case will probably be covered by many folks, I will try and get to the legal nerdery, and leave the political stuff for people that care. 

I thought the only interesting issue before the First was the First Amendment issues.  The rest of the gays-in-the military issues, I thought were settled (in favor of the gays).  Strangely, the First reaches to defer to the government.

• Regarding the First Amendment issue (the most interesting) the First says “There is no question that members of the military are engaging in speech when they state their sexual orientation....But the Act's purpose is not to restrict this kind of speech. Its purpose is to identify those who have engaged or are likely to engage in a homosexual act as defined by the statute.”   10 U.S.C. § 654 (2007).    It concludes, “The Act relies on a member's speech only because a member's statement that he or she is homosexual will often correlate with a member who has a propensity to engage in a homosexual act.”  District Judge Saris dissents on this point, but since he won’t be an en banc judge, his very interesting opinion isn’t of much use.
• The First says that Lawrence “recognized that adults maintain a protected liberty interest to engage in certain consensual sexual intimacy in the home."  This is actually somewhat controversial.  There is some interesting language about the correct way to interpret implied holdings from the Supreme Court, and whether Scalia’s dissent should be used in interpreting it.  However, since I think the First is trying to reach a specific result in this big-ticket case, I don’t know if it will do anyone any good to refer to it in, say, an ERISA case.
• The standard of review applied in Lawrence was something that “that lies between strict scrutiny and rational basis”
• Rational basis review does not permit consideration of the strength of the individual's interest or the extent of the intrusion on that interest caused by the law; the focus is entirely on the rationality of the state's reason for enacting the law.
• Lawrence did not identify a protected liberty interest in all forms and manner of sexual intimacy.  So, the First says, the facial challenge fails.
• The First gets all silly about the role of the military, and says that the as-applied challenge fails because Congress thought long and hard about constitutional rights pre-Lawrence.  It is pretty obvious that the judges were reaching here.  They did a pretty good job analyzing Lawrence, but they fall to pieces and seem to be relying on Congress to construe the constitution.  They don’t even cite other courts (including the Court of Appeals for the Armed forces or even any of the service courts of appeal) that have dealt with the issue. 
• The equal protection claims fail because the First has declared Lawrence to be a substantive due process issue, rather than an equal protection one.  (Lawrence is rather opaque about this.)  The First concludes, “  As neither Romer nor Lawrence mandate heightened scrutiny of the Act because of its classification of homosexuals, the district court was correct to analyze the plaintiffs' equal protection claim under the rational basis standard.”

The opinion includes this choice silliness:

The circumstances surrounding the Act's passage lead to the firm conclusion that Congress and the Executive studied the issues intensely and from many angles, including by considering the constitutional rights of gay and lesbian service members. S. Rep. 103-112 at 286-87. Congress ultimately concluded that the voluminous evidentiary record supported adopting a policy of separating certain homosexuals from military service to preserve the "high morale, good order and discipline, and unit cohesion" of the troops.

Dear Solider:

Sorry to hear about your time in Iraq.  If you don't like it now, I am sure that you will soon.  Rest assured you are there for good and honest reasons and nobody would ever stretch intelligence for political means, especially if your life was at risk.  Although we support our troops, you probably understand that we can’t really send you to college the way you would like when you get back.  Also, the VA could use a bit of work.

Anyway, we are sorry that you might feel that we are in an unwinnable “war” (if you can call it that) and that we don’t really have you back on the home front.  But, to make it all up to you, we will kick out some girls for being “dykes.”  Rather than analyze soliders’ rights under Lawrence we decided to look at the Congressional history which says that these girls are one hurting your morale because of their "propensity or intent to engage in homosexual acts."  How awesome is that?

Happy Days,

The American People (via the First Circuit)

Blue Mass Group Comments here.  Pam's House Blend comments here.  A Stitch in Haste comments here.

CA1: Selya surprises and says that fast-track progarms can be considered Post-Gall

US v. Rodriguez , No. 06-2656.  This case is by Selya.  The appeal involves whether post-Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) the First’s holding that sentencing disparities due to lack of “fast-track programs for the processing of immigration crimes” in some districts must be remedied by variances.  Without reading the case, I started writing snarky comments about Selya.  Then I read it, and he surprised me!  He actually holds that Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) matter. 

He writes:

In fidelity to the Supreme Court's new gloss, we abrogate Andújar-Arias [507 F.3d 734 (1st Cir. 2007) (our coverage here)] to the extent that it is inconsistent with this opinion, vacate the sentence appealed from, and remand for resentencing.

His analysis can be boiled down to this:

• Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission.
• ... Like the crack/powder ratio, the fast-track departure scheme does not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role." ...
• the Commission has "not take[n] account of empirical data and national experience" in formulating them...
• Thus, guidelines and policy statements embodying these judgments deserve less deference than the sentencing guidelines normally attract.

...If raised, the sentencing court will have to answer this question in a particular case. And where that answer is favorable to the defendant, a variant sentence premised on perceived inequities attributable to the availability elsewhere of fast-track departures would, given the Supreme Court's new gloss, seem to be entitled to deference "even in a mine-run case." ...

I got some more... and even stuff for non-criminal law types.

Let the blabber start on the Marriage cases

This blog is for ethical lawyers only.  As an ethical lawyer, you will have already read In re Marriage Cases (if you did not, you are not ethical). If you have not read that case, then you are not an ethical lawyer and rather than breath air like a mammal, you malpractice. 

Anyway, Bill Mears of CNN reports that:

An appeal to the U.S. Supreme Court is likely. The federal high court has never addressed the question of same-sex marriage.

Why did he say that? Did the California Supreme Court rely on the United States constitution?  Did Mr. Mears even read the case?

Well, did he at least read Footnote 28:

Plaintiffs base their constitutional challenge in this case solely upon the
provisions of the California Constitution and do not advance any claim under the
federal Constitution. (See Cal. Const., art. I, § 24 [“Rights guaranteed by this
Constitution are not dependent on those guaranteed by the United States
Constitution”].)

So, why does he think that an “appeal” to the United States Supreme Court is likely?  How could someone rise to the exalted rank of “producer” at CNN without at least quoting footnote 28?

Florida Hijinx Continue – with appellate courts and Quo Warranto Petitions

This time, an appellate judge is facing discipline for writing a concurring opinion because he criticized a “fellow” judge in a concurring opinion, stating that the judge should have recused himself.

I think most people agree that this is absurd. But, perhaps it will teach Floridians a lesson that 1) having independent judges is better than having a judiciary which cannot be criticized and 2) legal ethical rules should not be used as a way to punish people for their legitimate participation in democracy. When the hell did legal ethics become an area of punitive and substantive law that is lobbed like a spear between lawyers whenever they get into a catfight? 

The extensive documents are available here and here and here, and since they involve a Quo Warranto Petition, they are of note from a purely practical perspective

A Public Defender has the scoop, including news reports that indicate that the Judicial Qualifications Commission doesn’t seem to care about judges that sexually harass women that work for the court system.

 

More on Ben Kuehne (lawyer indicted for opinion letter)

Legal Ethics Forum reports that:

Regarding Ben Kuehne…  we've heard the extraordinary rumor -- we repeat "rumor" -- reported by the WSJ Law Blog is that DOJ has replaced the prosecutor and is considering dropping the charges.

See our earlier coverage here.

CA1: Fahrenheit 9/11 didn’t defame injured vet

Damon v. Moore, No. 07-1365.  I thought this case would be interesting because the Weinsteins and Michael Moore were being sued.  (Of course Michale Moore is represented by a big firm.)  The plaintiff claims that Fahrenheit 9/11 “portrayed Damon as supporting the documentary’s anti-war and anti-Commander-in-Chief message by using and placing in the documentary, without his consent, a sixteen-second segment of an interview he previously conducted with NBC.”  The plaintiff consented to be interviewed by NBC, but not, it seems by Michael Moore.  The plaintiff claims that “the documentary was an attack upon the integrity of the Commander-in-Chief and the war effort, and it denounced the United States’ military action in Iraq by, among other things, ‘attacking the credibility of the Commander in Chief of the United States Armed Forces about the justification for the war, its cost and consequences . . . .’” He does not way to be a part of that.

Keep reading.

CA1: En banc rehearing denied in Cerqueira – so the First really does like racial profiling

Over the dissent of Torruella, the First denies a petition for rehearing and rehearing en banc in Cerqueira v. American Airlines (our coverage here), which held that the airlines can’t be sued for kicking someone with a Stanford education off a plane (resulting in his detention) airline didn’t act with some sort of racial animus.  This pretty much clears the way for people to harass all dark-skinned foreigners by telling flight attendants that person sitting next to them is acting like Borat.

The plaintiff in the underlying case commented about his ordeal here.

If someone from AA would like to explain their position, and they are free to leaver a comment as well.  However, it must be written by a lawyer and any comments written by someone in public relations (or without a law degree) will be deleted. 

ExxonMobile's Orders of Attachment

A number of people have commented that the main stream media hasn’t provided details about ExxonMobile’s successful attempt to obtain an “Order of Attachment” against PDVSA  a/k/a the Venezuelan oil company that has something to do with Venezuelan politics. For some reason the people releasing press releases about this neglected to provide the source documents. I am sure that was an oversight.

Anyway, in the US, the case was filed in the Southern District of New York and referred to Judge Deborah A. Batts.  Some firm called Steptoe & Johnson represents Mobil Cerro Negro, Ltd. The docket number is 07-11590. PDVSA is represented by Curtis, Mallet-Prevost, Colt and Mosle.  There are a lot of filings available on ECF. They have even been translated into English.  I picked up a few of them for you, the reader.  (Note: Since I noticed that both firms have been looking at this page, if you have any documents to post (i.e. things filed in court) I will post or link to them.  If you leave a comment, I will prominently post it.)

• Initial Complaint
• Order of Attachment
• Plaintiff's Memorandum in Support of Motion
  
• Order Vacating Confirmation of Attachment (contains date of hearing)
  
• Memorandum in Opposition to Confirmation of Attachment (very interesting)
  

CA1: the First says that 28 U.S.C. § 2254(d) is constitutional, because it isn’t a rule of decision

Evans v. Thompson,  No. 07-1014.  The First Circuit takes a position on AEDPA: That it is constitutional in terms of the ways it limits a District Court’s ability to interpret the constitution.  I can’t say I am surprised.

I am a little bemused at the logic it relies on: because “lower” Federal Court (i.e. not the Supreme Court) are created as per Congress then Congress can restrict the jurisdiction of said courts.  There might be ways to save AEDPA, but this isn’t one of them.  Restricting the grounds upon which habeas can be granted is a rule of decision, not a restriction upon the power of courts.  If, for example, Congress divided up Massachusetts into two federal judicial districts, then, one could argue that the Eastern District of Massachusetts wouldn’t have jurisdiction over a convict in the western part of the state.  Okay, the First screwed this up.  But, despite this pathetic analysis, the First does admit some things: that the gap between “erroneous” and “unreasonable” is “narrow.”  It seems to enumerate the areas that fall into this gap.