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. 

CA6: Sixth Circuit turns habeas preclusion against the state

DotD points to a decision from the 6th Circuit which holds that if the state courts, pre-Atkin concluded that someone was retarded to be killed by the state but nevertheless could be killed by the state, post-Atkins, the state can’t relitigate the issue of just how retarded the prisoner is on habeas.

ERISA standards of review getting Supreme play

Since at least 50% of my readers are interested in ERISA matters (the other two read the blog for its snark), I figure that it is worth nothing that the issue of the proper standard of review for a “conflicted” ERISA administrator is getting some play with the Solicitor General and the SCOTUSblog.  You can read a case which talks about this issue in Denmark v. Liberty Life, No. 05-2877 (our coverage here).  Actually, the "insurance" category of this blog has a bunch of stuff on this issue.

Proof that the MSM is out to lunch

This story from CNN (or AP) reports on Leonard v. Robinson (6th Cir. 2/2/07).  It is a pretty garden-variety 1983 case where some cop thinks that he can arrest someone for saying “goddamn” and claims qualified immunity.  The District Court dismisses and the 6th reverses because a reasonable fact-finder could conclude that the arrest was in retaliation for protected conduct.  There is a quote from Bork (noting that is favors the most “narrow” interpretation of freedom of speech).  Anyway, CNN’s coverage is laughable, and it is obvious that they did not read the Sixth Circuit’s opinion, and they get just about every legal point wrong.

Oh, and the 6^th Circuit posted the oral arguments in the warrantless wiretapping case.  Here is the mp3.

CA6: The incredible journey of Mr. Fieger

I don't know Geoffrey Fieger.  I know a lot of people don't like him, but unlike many lawyers he does not put much stock in trying to make everyone happy.  He speaks his mind.  He represents his clients. Unfortunately, his complete lack of social skills has spawned a war with various Michigan justices who campaigned against him, noting, amount other things, that he had jury verdicts pending on appeal before the various courts they were seeking to be on.  From my perspective, the Justices on the Michigan Supreme Court seem quite biased against him, and seem to also decide that Michigan's recusal statute doesn't apply to them.  In fact, to me, it seems like they were campaigning on a platform of "We don't like Fieger or his clients."  He tried to get them to recuse themselves.  But, despite their comments, they refused to do so.

He sued in the District Court, challenging the recusal procedures.  Keep reading. 

CA6: Why doesn’t the Sixth name the judge ?

DotD points to a disturbing case from the sixth circuit, entitled Lyell v. Renico, 04-1106 (6th Cir., Dec. 1, 2006), in which a trial judge made no secret of his hatred for the defendant and his counsel.  The exerted transcripts read like a fight between two law students. The state courts affirmed, and the Sixth grants the writ.  But, they don’t name the judge. Maybe the briefs will be online soon.  I think the people of Michigan need to know which judges conduct their trials in such a way that the very conduct of the judge results in a grant of a habeas grant.

CA6: Welcome to the Blogosphere

Eric H. Zagrans starts the ambiguously-named Sixth Circuit Blog, which I imagine is going to have posts regarding court of appeals in a “previously unknown and unexplored land mass between the New York and California coasts known as the ‘Midwest.’”

His first substantive post links to a Federalist Society Article about the Ohio Supreme Court, which concludes that in some eras it was “policy-making” and “activist” and in some eras, it was not.  You can read what I think, if you want.

CA6: Possible cert. issue on AEDPA

I don’t know if I am alone on this or not, but I think that Davis v. Straub might be a candidate for a cert. grant.  DoTD explains and comments on it.  In a denial from a petition for rehearing en banc, the dissent points out that this decision essentially suspends habeas, and unconstitutionally applies AEDPA.  Essentially, the petitioner argues that is like illegally imprisoned because at his state trial a witness that could have exonerated him was intimidated into not testifying by the prosecutor and judge (by insinuating that he would be charged with the crime if he did testify.)  Since there was no evidence in the record that the defendant was even marginally of the middle class, he has to stay in jail for life.  The dissent (by Judge Green quoting Judge Merritt) ends with these words: The Great Writ, what Blackstone called “the Bulwark of the British Constitution,” the only writ named in the United States Constitution, is not deserving of such an undistinguished death.

CA6: Round Up the Usual Suspects

The Sixth Circuit reversed the denial of a motion for a new trial based on the theory that the verdict was against the clear weight of the evidence for one appellant who claimed his right to be free from unreasonable seizures was violated.  Mitchell v. Boelcke, No. 04-2219. After receiving a call for assistance in searching for individuals who had robbed a man on the street, who had described the perpetrators as a group of black and white youths wearing white shirts, a police officer saw plaintiff, whom he knew from prior encounters.  Plaintiff was wearing a blue shirt, but the officer ordered him to walk to the scene, where he was identified by the victim.  When plaintiff was acquitted, he sued.  I would like some detail concerning how the officer knew plaintiff.  If he knew him from prior investigations of robberies, a brief detention seems reasonable. 

CA6 to Rule on Whether 911 Calls Are "Testimonial"?

The Sixth Circuit may soon rule on whether a 911 telephone call is testimonial in nature for Crawford Confrontation Clause purposes, as it yesterday granted en banc review in United States v. Arnold, No. 04-5384. Arnold, as originally issued, held that a jury conviction for being a felon in possession of a firearm was against the manifest weight of the evidence. United States v. Arnold, 410 F.3d 895 (6th Cir. 2005). Even though that was dispositive of the matter, Judge Carmen (of the U.S. Court of International Trade) joined by Judge Moore, felt obliged to opine that admission of a 911 telephone call violated both the rules of evidence and the Confrontation Clause. The opinion was later amended in a form that was whittled down to the manifest weight of evidence analysis. See 434 F.3d 396.