Friday, April 25, 2008

Split Widened: Is Consular Notification (Or Notification Of the Availability Consular Notification) An Actionable Individual Right?

Per Mora v. People of N.Y., 2008 WL 1820836 (2d Cir. Apr. 24, 2008)

Medellin made waves when came down, but it turns out the Supreme Court in that case (as with others before it) did not decide an issue that had split the circuits: Whether the Vienna Convention’s provision requiring police officers to notify detainees that they could communicate with their consulate. Instead a majority of the court Court assumed, without so holding, that the Vienna Convention did so. The Circuits have split on this issue. The CAs 4,5,6,9, and now 2 hold that the Vienna Convention does not create judicially-enforceable rights, whereas the CA 7 holds that it does. The separate question of whether the Vienna Convention is self-executing was not raised in this case.

Article 36(b) provides: “if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;”

The CA 7 says that this language is clear that it creates an individually enforceable right; how else can you read “of his rights.” Moreover, the CA 7 argues, this is clearly not a right conferred on the sending State, because its exercise depends on the request of the detainee. As final support for its position, the CA 7 looks to State Department circulars, and DOJ regulations referring to Article 36 as providing an individual right.

The CA 2 disagrees, noting that the obligation to inform a detainee of his rights is, itself, never phrased as a right; nor does this or any other provision of the Vienna Convention state whether private individuals can pursue judicial enforcement of the treaty in the domestic courts of the States-party. The CA 2 also relies on the Preamble to Article 36 and the Convention as a whole, which disclaim any purpose to benefit individuals. Finally, the State Department submitted an amicus brief in conjunction with the Department of Justice urging the conclusion that the Convention does not confer a judicially-enforceable individual right. The CA 2 says the views of the Executive concerning treaty interpretation are entitled to great deference.

As an interesting aside, the panel requested the United States to provide information regarding other states’ practices with regards to private suits for money damages for violations of Article 36. 91 countries replied, 90 of which do not permit such suits to go forward. In addition, the State Department informed the panel that only a handful of countries had interpreted Article 36 as providing an individual right. The opinion does not state, however, how many of the countries had interpreted the Article the other way (i.e. if the handful was 100% or 10% of the countries to have considered the question). Such state practice is meaningful in the interpretation of treaty obligations.

Thursday, April 24, 2008

Split Created: Is Claim-Splitting Permitted By The Contract Disputes Act?

Per Phillips/May Corp. v. United States, 2008 WL 1808548, *5-*9 (Fed. Cir. Apr. 23, 2008)

Now I have truly covered every circuit. Phillips/May was awarded a contract to design and construct a Religious Ministry Facility at a military base. It completed the project over a year and a half late, after various contract modifications were made. A month after completing work, Phillips/May submitted ten claims to the Contracting Officer. The officer failed to act on any of these claims, and this inaction constituted an appealable rejection after sixty days. Phillips appealed nine of the ten claims the Armed Services Board of Contract Appeals Ultimately, the parties entered into a global settlement agreement with respect to the nine claims, and the Board entered judgment to that effect.

Six months later, Phillips/May appealed the denial of the tenth claim to the Court of Federal Claims. After the suit was filed, the Contracting Officer offered a determination that Phillips/May was collaterally estopped from raising this claim separate from the other nine claims which arose out of the same set of transactional facts. The question in this appeal is whether the unique procedures of the Court of Federal Claims and public contract disputes permit claim-splitting without raising issues of res judicata, contrary to the general procedure of civil actions.

41 U.S.C. § 609(d) suggests that claim-splitting is permitted in contract actions: “If two or more suits arising from one contract are filed in the United States Court of Federal Claims and one or more agency boards,” the Court of Federal Claims may consolidate them in the interests of justice. This provision does envision separate suits arising from the same contract, and would seemingly resolve this case.

Judge Dyk, on behalf of a unanimous panel, however, notes that this provision does not clearly state that the splitting of all claims, as opposed to transactionally unrelated claims, is permissible. Relying on this ambiguity, this panel of the Federal Circuit then turns to the drafting and legislative history of the Contracts Dispute Act. Congress specifically included, considered, and finally eliminated statutory language which would have expressly permitted claims-splitting between fora. The panel concludes that this rejection implies that Congress intended for claim preclusion to apply with its normal force. The panel does recognize, in a footnote, that it is creating a circuit split from the CA 6.

I think that the Federal Circuit in this case gets Congress’s intent 100% right, and the language of the statute 100% wrong. The manufactured ambiguity just isn’t there. The statutory section permits separate suits “arising from one contract,” meaning separate suits that arise from similar facts. It will be interesting to see what happens if Phillips/May pursues certiorari – an issue of statutory interpretation on which the circuits are split and that governs the jurisdiction of courts when reviewing public contracts seems important enough... Then again, the split is largely irrelevant because almost all these cases go to the Federal Circuit.

Wednesday, April 23, 2008

Fun: What Frequently Cited Law Review Article Has Had The Biggest Influence In The Courtroom?

This blog has previously discussed what popular television show has appeared most frequently in the pages of the Federal Reporter. Prompted by this recent trivia post at PrawfsBlawg, I decided to see if the law review articles that had a major effect within academia also had a similar effect outside the ivory tower, more specifically, in the courtroom.

I selected the top thirty articles as listed on PrawfsBlawg and described in Fred Shapiro’s 1996 law review article. Some of these articles were too old to be included in the Westlaw database themselves, so I could not use the citing references tool. Instead, I structured a search looking for the author’s last name within a paragraph of the title within a paragraph of one of the journal identifiers within a paragraph of the year of publication. For example, the search for the law review article most cited in other articles was: Coase /p “The Problem of Social Cost” /p Econ! /p 1960. I performed this search within the allcases and cta databases of Westlaw separately.

My table of results can be found here (PDF). Looking at the data, three quick conclusions came to mind. First, it is good to be a Justice – even your academic writings are frequently cited in court materials. The top two articles were published over a century ago, and only three of the top ten were published after 1970. Four of the top five also deal with issues of individual rights, whereas the fifth deals with the study of law as a science. These facts lead to the second conclusion – law review articles were more influential in the past, when they dealt with black-letter law. For more on this phenomenon, see here (NY Times article), here (Volokh discussion and linkwrap), and here (.PDF study). The final conclusion is not all that surprising. Some of the articles which have proved the most influential in the academy have not been able to reach outside the ivory tower and into the courtroom. (This author thinks that might be for the better).

Tuesday, April 22, 2008

Splits Noted: Issues concerning the Piracy of Encrypted Satellite Television Signals

  • Does 47 U.S.C. § 605(e)(4) Apply to end-users of Piracy Devices?
  • Does a District Court Have Discretion Not To Award Damages For Piracy of an Encrypted Satellite Signal Under the Wiretap Act?

Per DIRECTV, Inc. v. Rawlins, 2008 WL 1777856, *7-*10 (4th Cir. Apr. 21, 2008)

With the coverage of this case, this blog has now covered a case from every circuit court capable of creating or noting a circuit split. It has also had visitors from every inhabited continent, and over 1,300 unique visitors. The most visitors continue to come from the U.S. Courts. I want to thank again those who have helped me start up, particularly Appellate Law & Practice, California Blog of Appeal, Decision of the Day, Obsidian Wings, Sentencing Law & Policy, and Southern Appeal. Please visit those blogs (links on the side) to help me thank them.

DIRECTV has been vigilant in pursuing actions against those who pirate its satellite television signal, instituting legal action against more than 25,000 defendants (see here). It commenced the instant action against defendant Rawlins after discovering evidence that he had purchased five devices enabling Rawlins to watch DIRECTV programming without paying for a subscription. DIRECTV alleged violations of the Cable Act and the Wiretap Act. After Rawlins failed to appear, DIRECTV moved for default judgment including a permanent injunction, statutory damages, attorneys’ fees, and costs. The district court granted summary judgment, entered an injunction, awarded DIRECTV costs and fees, but denied statutory damages under either Act. DIRECTV only appealed the denial of damages under the Wiretap Act.

Nonetheless, Judge Duncan considers the history and provisions of both acts as they apply to this case. The Cable Act proscribes the unauthorized reception of an encrypted satellite signal by end users, 47 U.S.C. § 605(a), and the manufacture, assembly, modification, importation, exportation, sale, or distribution of piracy devices or equipment, 47 U.S.C. § 605(e)(4). The former provision is punishable by statutory damages of not less than $1,000 and not more than $10,000, whereas the latter provision is punishable by statutory damages of not less than $10,000 and not more than $100,000. 47 U.S.C. § 605(e)(3)(C)(i)(II). Any award of damages is subject to the discretion of the district court.

The panel, unanimous on this point, notes that the circuits have split on the question of whether § 605(e)(4) may be applied to end-users (CA 4,5) or is limited to upstream manufacturers (CA 9, several district courts). In this case, the district court denied summary judgment to DIRECTV on its claim under § 605(e)(4), finding that that section was limited to upstream manufacturers. Even though the trial judge did not mention the contrary Fourth Circuit precedent on this issue, the panel does not address it because DIRECTV did not appeal the failure to award damages under the Cable Act.

Pirating a satellite signal also violates the Wiretap Act, which forbids the interception of any wire, oral, or other electronic communication. 18 U.S.C. § 2511(1)(a). Like the Cable Act, the Wiretap Act provides a civil remedy to those harmed by violations of its provisions. 18 U.S.C. § 2520. The statute provides for mandatory damages for the piracy of non-encrypted satellite communications in an amount ranging from $50-$1000. 18 U.S.C. § 2520(c)(1). For the theft of encrypted satellite communications, the statute provides for discretionary statutory damages in amount of $10,000 or $100 per day for each day of violation, whichever is greater. 18 U.S.C. § 2520(c)(2).

As this case concerns the piracy of DIRECTV’s encrypted signal, the latter provision applies. Judge Duncan notes that, despite the statute’s permissive language (“may”), the circuits have split over whether the award of damages under § 2520(c)(2) is discretionary. The CAs 4,6,8,11 all hold that it is discretionary, whereas the CA 7 requires a court to award damages.

Having thus concluded that the decision to award damages under either act lies within a district court’s discretion, the panel concludes the trial judge in this case abused his discretion by considering legally irrelevant factors. It therefore remands to the district court to consider whether damages under the Wiretap Act would be appropriate in light of the relevant concerns.

Split Widened: Does The Petroleum Marketing Practices Act Permit Claims For Constructive Non-Renewal of Franchise Agreements?

Per Marcoux v. Shell Oil Prods. Co. LLC, 2008 WL 1759157, (1st Cir. Apr. 18, 2008)

Eight Shell franchisees brought suit against Shell for violations of the Petroleum Marketing Practices Act (PMPA). In 1998, Shell transferred franchise agreements to Motiva, a joint venture with Texaco and Star Enterprises. Motiva then changed the rent provisions in the contract, which included a discount based on the amount of gasoline sold above a threshold. This subsidy had been in effect since 1982, although the threshold and discount amount had changed from time to time. The terms of the subsidy explicitly provided for cancellation on thirty days notice, but various representations were made to the franchisees that the subsidy would always exist. Motiva ended the subsidy entirely in 2000, and offered new leases with higher rent. The dealers signed the new leases under protest, and then filed the instant suit.

The First Circuit upholds the jury verdict that cancellation of the subsidy amounted to constructive termination of franchise contracts. It overturns the jury’s finding that the new leases constituted constructive non-renewal in violation of PMPA. The unanimous panel notes that the circuits have split on whether the PMPA even permits constructive non-renewal claims (CA 9), or instead requires a franchisee to receive a notice of non-renewal (CA 5,7, and now 1). Judge Howard finds that the franchisee’s ratification of the new leases precludes any claim of constructive non-renewal. He expresses some discomfort with this result, but finds that it is what the language of the statute requires.

As Appellate Law & Practice notes, this opinion is also notable for those interested in civil procedure as well as gas-gouging. The court permitted substitution of the plaintiffs after the statute of limitations had run by relating the claims back to the original suit. The court also found that Shell did not exercise good faith in setting its prices.

Split Noted: Can Events After the Filing of a Class Action Suit Affect Its Removal?

Per Springman v. AIG Marketing, Inc., 2008 WL 1722153, *3 (7th Cir. Apr. 15, 2008)

In July 2003, Plaintiff Springman filed a class action suit in an Illinois state court against AIG Claim Services, Inc, alleging fraudulent claims processing. AIG Claim Services responded to an interrogatory in December 2003 by stating that it had not handled Sprigman’s claims. Almost a year later, Springman finally asked who handled his claim and was informed that the processor was AIG Marketing, Inc. Finally, Springman amended his complaint to aid AIG Marketing and drop AIG Claim Services almost three years after discovering that AIG Marketing was responsible for the allegedly fraudulent claims processing.

In between the suits initial filing and the amended complaint, however, Congress passed the Class Action Fairness Act, which allows removal of some class actions to federal court despite the lack of complete diversity. This act applies to any suit commenced on or after the Act’s effective date. The question is whether the substitution of the parties constitutes a ‘commencement’ of a suit against AIG Marketing within the meaning of the CAFA.

Judge Posner, on behalf of a unanimous panel, notes that the circuits are split on this issue. The majority (the CAs 5,6,7,8,10) hold that actions after the filing of a suit can affect removal, whereas the CA 9 only looks to the suit as initially filed. The majority school does apply the ‘relation-back’ doctrine to determine if the substitution of parties (or other changes) so relates back to the initial suit as not to commence a new suit. That doctrine does not apply here because of Plaintiff Springman’s inexplicable delay in amending his complaint. Therefore, the substitution of the parties commenced a new suit, which can be removed under the CAFA.

Monday, April 21, 2008

Split Widened: Does The Mailbox Rule Apply In Tax Cases?

Per Phila. Marine Trade Ass’n-Int’l Longshoremens’ Ass’n Pension Fund v. Comm’r., 2008 WL 1722730, *16-*33 (3d Cir. Apr. 15, 2008)

The Pension Fund collects contributions under various collective bargaining agreements between the trade association and locals of the Longshoremens’ unions. It is required to remit payroll and income taxes to the IRS from the moneys it distributes. In 2001, the IRS notified the O’Neill, the company in charge of administrating the Fund, of various filing errors, and assessed a levy against the Fund. This levy was only discovered by O’Neill during an audit 2003, after the employee who had received the notification had left the company. O’Neill then mailed two requests for a refund, but only has a record of the mailing on June 13, 2003. The IRS has no record of receiving either letter.

The Fund, O’Neill, and the IRS held various discussions throughout the summer. After these negotiations failed to produce an agreement, the Fund formally filed for (how’s that for alliteration) a refund in September 2003. The IRS refunded a portion of the levy, but declined to refund the full amount because the statute of limitations to request a refund on the remainder expired on June 25, 2003.

The common-law mailbox rule is that if a document is properly mailed, a court will presume that it was delivered to the addressee in the usual time. Section 7502 of the Internal Revenue Code makes the date of the postmark of any tax filing the equivalent delivery date. In effect, this section speeds up the common-law mailbox rule – instead of delivery in the usual time, this section authorizes an assumption of instantaneous receipt. Subsection c, which only applies to § 7502, makes registered mail prima facie evidence of delivery at the time of the postmark.

The question is whether Congress intended this section to entirely preempt the common law mailbox rule, or merely to provide additional protections. Judge Ambro, on behalf of a unanimous panel, holds that where, as in this case, the taxpayer does not need to rely on § 7502 and has offered external evidence of mailing, the common-law mailbox rule continues to apply. The panel noted that it would be illogical to read a statute conferring additional protections to be, sub silentio, repealing others. Furthermore, Congress needs to be explicit and clear when it is repealing common law protections. In so holding the CA 3 widens a split between the CAs 8,9,10 (so holding) and the CAs 2,6 (finding that § 7502 is exclusive).

This tax decision was delivered (pun intended) on tax day. Although, as noted above, it widens an already well-developed split of authority in the circuits, it is not a likely certiorari candidate. The Department of the Treasury has proposed a regulation that, if adopted, would clearly preempt the mailbox rule in all future cases, regardless of the circuit. 69 Fed. Reg. 56,377.

Split Noted: What Principles Should Limit the Boundaries of Public Honest Services Fraud?

Per United States v. Sorich, 2008 WL 1723670, *6-*9 (7th Cir. Apr. 15, 2008)

The facts of this case, which arises from the city of Chicago’s perennially troubled civil-service hiring practices, are irrelevant to the split at issue. The mail fraud statute criminalizes the use of the mail in furtherance of a scheme or artifice to defraud another of various interests, including, in relevant part, “of the intangible right of honest services.” 18 U.S.C. § 1346. This statute, however, does not limit the range of possible meanings of honest services, raising constitutional vagueness concerns.

No court has invalidated the statute for want of definition. Instead, the circuits have recognized the problem and offered their own limiting understandings to apply in public-fraud cases. The CAs 3,5 require a violation of state law. The CA 1 requires more than a mere violation of state ethics law. The CA 7 has required ‘private gain’ in order to find an instance of honest-services fraud. It continues to apply this understanding in the present case, though recognizing that the CA 10 has expressed a legitimate disagreement. Several additional splits have emerged in the private honest-services fraud context. See generally 172 A.L.R. Fed. 109.

Split Widened: What Does Substantially Contemporaneous Mean In the Bankruptcy Code?

Per Gordon v. Novastar Mortgage, Inc. (In re Hedrick), 2008 WL 1724009, *19-*33 (11th Cir. Apr. 15, 2008)

In this consolidated case, the debtors refinanced their home mortgages. The debtors paid off the first loans with the finances received from the new creditors. The new loans were secured by first priority security deeds on the debtor’s homes, which deeds were recorded within ninety days of the debtors having declared bankruptcy. In the relevant case of debtor Sharma, the security deed was not submitted to be recorded until eight days after the loan was made. The bankruptcy trustee sought to set aside the security deed of the new creditors.

A bankruptcy trustee may avoid a debtor’s transfer of property to a creditor that was made within ninety days of the filing of a bankruptcy petition when that transfer gave the creditor more than the creditor would otherwise be able to receive under the bankruptcy petition. 11 U.S.C. § 547(b). The trustee, however, is not able to avoid such transfers where they are a substantially contemporaneous exchange giving the debtor new value. 11 U.S.C. § 547(c)(1).

The question whether Sharma’s transfer of his interest in the house was voidable depends on the meaning of the contemporaneous exchange exception. The Eleventh Circuit notes that this issue is one of first impression, and that the other circuits are split. The CAs 1,6 apply a 10-day bright-line rule, whereas the CAs 7,8,9 examine the facts and circumstances of each case to determine whether or not a transfer was substantially contemporaneous.

After initially noting the split, Judge Carnes, on behalf of a unanimous panel, spends much time criticizing the bright-line rule. *21-*30. Why the panel takes the effort to do so, however, is an open question because the result would be the same regardless of what tests applies. The facts and circumstances of this eight day period support the conclusion that the substantially contemporaneous exception applies. The rest of the opinion should beunderstood as dicta offered in the hopes of persuading other courts and circuits to join the CA 11's conclusion.

Split Noted: Is Mandatory Restitution Criminal or Civil in Nature?

Per United States v. Bonner, 2008 WL 1701841, *4 (7th Cir. Apr. 14, 2008)

For seventeen years, the Bonners defrauded the government – receiving payments for non-existent medical problems and non-existent children. A jury convicted them for wire-fraud and theft of government property. The Bonners do not appeal their conviction, but only the restitution the district court judge ordered under the Mandatory Victims Restitution Act.

The Bonners contend that restitution is a criminal penalty, and therefore the fact of amount of restitution must be found by a jury beyond a reasonable doubt. The Seventh rejects this argument as it has prior precedent which dictates that restitution is, in fact, a civil remedy appended to a criminal sentence. It notes, however, that the majority of the circuits have held differently. The CAs 2,3,5,8,9,11,DC all hold that restitution is a criminal penalty; only the CAs 7,10 hold differently.

This distinction, however, has not made a difference in the end result. As far as my research reveals, no court in the majority school has applied Booker to find that a jury need find the fact of restitution beyond a reasonable doubt. The en banc Third Circuit opinion in United States v. Leahy, 438 F.3d 328 (2006), provides an excellent discussion of both points of view and reveals the sharp divide. Third Circuit Blog covered that opinion here.

Wednesday, April 16, 2008

News In Brief

I apologize for my absence for the last few days. Houseguests, work, and play have all kept me far too busy to provide detailed entries here. In lieu of those details, I offer a headline summary of recent decisions I have found.

I should be back on top of things by Friday, and will provide full entries on all of the cases noted below. In the meantime, check out the cases (linked) if you are interested as well as Blawg Review #155 from the California Blog of Appeal.

Saturday, April 12, 2008

Split Noted: Is Prejudgment Interest Available Under the Warsaw Convention?

Per Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 2008 WL 1021939, *25-*26 (7th Cir. Apr. 11, 2008)

Sompo Insurance brought suit against Nippon Cargo Airlines (NCA) seeking compensation for the damage to computer equipment caused during transport. After a bench trial, the district judge entered judgment for Sompo but denied prejudgment interest.

In the course of his opinion, Judge Ripple provides an extended and informative history of the various international agreements governing air carrier liability. The unanimous panel affirms the district court’s holding, but notes that the circuits have split on whether prejudgment interest is available under the Warsaw Convention; the CAs 2,7 (no) differ from the CAs 5,9 (yes). Certiorari is highly unlikely as the Warsaw Convention was superceded in 2005, after the accident at issue here, by the Montreal Convention.

Split Widened: Are Pre-Trial, Post-Indictment Hearings Required When Forfeitures Implicate Defendants' Sixth Amendment Rights?

Per United States v. E-Gold, Ltd., 2008 WL 995627, *16 (D.C. Cir. Apr. 11, 2008)

I have to argue a fake case, with a closed record, on this precise issue for a class later this month. I therefore cannot read any more of this case than I already have, but wanted to flag the case as one of interest. Also from the D.C. Circuit yesterday, Judicial Watch, Inc. v. F.B.I. further enlarges the majority school on the meaning of 'prevailing party' for fee-shifting statutes, previously discussed here and here.

Have a great weekend everybody!

Split Noted: What is the Standard Governing the Review of the Scope of a Consent to Search?

Per United States v. Jones, 2008 WL 1073739, *15 (1st Cir. Apr. 11, 2008)

Whenever an appellate court begins it opinion reviewing a criminal conviction for drug crimes by calling the defendant “Smoke,” it is not going to end well. Rashaun “Smoke” Jones checked into the Towneplace Suites hotel. The manager informed a police sergeant of this fact (the case does not say why), and a database search revealed an outstanding warrant. While a team was assembling to effect the Jones’s arrest, officers observed others leaving the hotel room and behaving in such a manner as to indicate a drug transaction had just taken place.

Six officers subsequently entered the hotel room, without knocking and without a warrant. Marijuana was in plain sight, and the four occupants of the room were handcuffed. Jones was identified, brought to a separate room, and read his Miranda rights. An agent then asked if they could search the suite, and Jones gave his consent. Heroin and ecstacy were found inside a cabinet in the kitchenette.

Jones appeals his conviction for possession with intent to distribute, arguing that the no-knock entry requires suppression, that his consent was not knowing or voluntary, and that his consent did not extend outside the bedroom in which he was being held. While hotel occupants have the same Fourth Amendment rights as homeowners, Hudson v. Michigan held that the exclusionary rule does not apply to no-knock entries when the police have a valid reason to enter.

The consent issue is tougher. Can consent be truly free and voluntary when one has just been shocked by the entry of fifteen police officers with weapons drawn and is now handcuffed? The district court says yes, and the First Circuit affirms under the clearly erroneous standard. As a personal matter, I am inclined to agree that the Miranda warnings did help ensure the voluntariness of Jones's consent.

Judge Torruella does note that the circuits have split over the proper standard for reviewing the scope of this freely given consent. The CA 5 believes that this is a legal issue to be reviewed de novo, whereas the CA 8 treats it as a factual issue under the clearly erroneous standard. The CA 1 does not decide what standard it would apply as would affirm under either. Finally, the panel also rejects two different sentencing appeals.

Appellate Law & Practice also provides a typically thorough summary of the case.

Thursday, April 10, 2008

Split Widened: Is a Standardized Impoundment Policy Constitutionally Required?

Per United States v. Smith, 2008 WL 942666 (3d Cir. Apr. 9, 2008)

Seeing defendant Smith in the passenger seat of a car, two patrolmen stopped the car because they knew that Smith had an outstanding arrest warrant. During the arrest, the driver started a fight with one of the officers. Subsequently, both the driver and Smith were arrested, leaving no one available to take possession of the car. The police officers concluded that they should not leave the vehicle where it was, because it was a rough neighborhood and the car might be damaged or stolen. After impoundment, a routine warrantless inventory search revealed a loaded semi-automatic handgun. Smith admitted that he had placed the weapon there and was charged for being a felon in possession of a firearm. Smith moved to suppress the gun, arguing that the decision to impound was unconstitutional in the absence of any standardized policy governing the officers’ discretion.

Judge Greenberg, on behalf of a unanimous panel, recognizes that the circuits have split on this point. The source of the disagreement is ambiguous language contained in the Supreme Court’s decision in Colorado v. Bertine. There, the Court upheld an impoundment where officers had the discretion either to park and lock the vehicle or to impound it, stating that “[n]othing in [previous cases] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria . . . .” Should this language be read to create a prophylactic rule requiring standard criteria, or simply a rejection on a false limitation of police discretion?

The CAs 1 and now 3 do not require a standard procedure (although encouraging their adopition), but have held that the proper test is whether the impoundment was reasonable given the circumstances – applying the Fourth Amendment directly. On the other hand, the CAs 8,DC both read Bertine to require a policy document that cabins the officers’ discretion – reading Bertine as a new prophylactic requirement.

Finally, if you think I have been busy today, you should check out the Tenth Circuit Blog for its many interesting entries today.

Splits Widened: Issues Concerning a District Court’s Failure to Set a Restitution Schedule Both During and After Imprisonment (Questions Below)

  • Does a District Court’s Failure to Set a Restitution Schedule During Imprisonment Impermissibly Delegate Judicial Authority to the Executive?
  • Is Failure to Set a Schedule After Release Plain Error?

Per United States v. Sawyer, 2008 WL 942653 (7th Cir. Apr. 9, 2008)

The facts underlying each of the three appeals are largely irrelevant to the legal issues presented. The three defendants were all ordered to pay restitution, and all are concededly unable to pay the full amount. They argue that 18 U.S.C. 3664(f)(2) required the district judges to set a schedule of restitution payments. In the case of one defendant, Duncan, the judge did set a schedule to take effect after his release from prison. For the other two defendants, Sawyer and Rodgers, no schedule at all was incorporated into the district courts' orders.

Duncan argues that the failure to specify a payment schedule during his time in prison impermissibly delegates a judicial task to the executive branch Bureau of Prisons. Chief Judge Easterbrook, on behalf of a unanimous panel, fails to see any delegation. The BOP’s authority over prison earnings is derived from statutory authority and not judicial delegation. “Prison earnings and other transactions concerning prison trust accounts are so completely within the Bureau of Prisons' control that it would be pointless for a judge to tell the convict how much to pay a month.” *5.

Chief Judge Easterbrook thus concludes that all repayment schedules, as a rule, should not begin until after defendants are released from prison. He recognizes, however, that the circuits are split on this issue. The CAs 2,3,6,7,9,10 all hold that the failure to set a repayment schedule for time in prison impermissibly delegates judicial power to the executive branch; only the CAs 4,5, and now 7 disagree.

With respect to defendants Sawyer and Rodgers, however, the panel holds that the failure to incorporate any repayment schedule was erroneous. The question remains, however, whether such mistake meets the plain error standard. In order to prove plain error, four elements must be met – there must be (1) an error, (2) that is clear or obvious, (3) that affects substantial rights, and (4) that would affect the fairness, integrity, or public reputation of judicial proceedings.

Chief Judge Easterbrook questions whether the failure to set a schedule at this time could affect the defendants’ substantial rights. Slow payment would not return a defendant to prison, the remedy for paying less than one is able would be the imposition of a schedule of minimum payments at the time such failure is noticed. The panel opinion continues to question how, even if the defendants’ substantial rights were affected, an order to repay what he owes could undermine the fairness, integrity, or public reputation of judicial proceedings. Indeed, setting a schedule that is too low could result in the defendant receiving a windfall – a result which would injure the fairness of judicial proceedings.

The panel therefore holds that failing to set a schedule of repayment is not plain error. The opinion again notes that the circuits are split on this issue. The CAs 2,3,4,6,10,11 all hold that this failure is plain error, while on the CA 5 and now 7 state that such failure is not necessarily plain error. The CA 1 also seems sympathetic to this view, holding that the failure to set a schedule for drug testing is not plain error. To reach its conclusion on this point, the panel had to overrule several previous Seventh Circuit precedents. This opinion was circulated to all Seventh Circuit judges, and not one called for rehearing en banc.

Split Noted: Can Class Certification Be Limited to Certain Issues That Are Amenable to Class-Wide Resolution?

Per Grovatt v. St. Jude Med., Inc., 2008 WL 942274, *9 (8th Cir. Apr. 9, 2008)

The underlying facts of this case are truly irrelevant to the circuit split that the opinion notes. Federal Rule of Civil Procedure 23(c)(4) permits class actions to be certified “with respect to particular issues.” Nonetheless, the circuits are split over whether such classes may be properly certified. The CAs 2,9 hold that they may; the CA 5 that they may not unless the whole cause of action can be so certified.

Judge Colloton cites a helpful law review article (not an oxymoron, I swear) on the direct issue. The article shows the rise and fall of the practice of issue certification; a majority of circuits do not reach the issue because they find (as the panel does here) that even those issues which have been certified have a predominance of individual concerns and thus should not have been certified.

Split Widened: Is There Appellate Jurisdiction to Review a Denial of a Motion to Stay Pending Arbitration in the Absence of an Arbitration Agreement?

Per Carlisle v. Curtis, Mallet-Prevost, Colt & Mosle, LLP, 2008 WL 942035, *3-*5 (6th Cir. Apr. 9, 2008)

After selling a construction business, plaintiff Carlisle sought advice on how to minimize his tax liability from Arthur Anderson, LP (accountants); Bricolage Capital LLC (‘financial boutique’); and Curtis, Mallet-Prevost, Colt & Mosle, LLP (law firm). These three institutions recommended a leveraged option strategy. Following this advice, Carlisle formed an LLC and entered into a management agreement with Bricolage, an agreement which called for arbitration of any controversy relating to the agreement. He additionally paid a retainer to the law firm, but did not enter into any agreement.

The IRS determined the leveraged option strategy to be an abusive tax shelter, but offered amnesty, subject to certain conditions, to taxpayers who had invested in them. Curtis Mallet failed to inform Carlisle of these rulings, and Carlisle was eventually required to pay more than $8 million in taxes, penalties and interest. Carlisle filed suit against the three institutions. Bricolage Capital moved to stay the proceedings pending arbitration. While that motion was pending, it filed for bankruptcy, resulting in an automatic stay. The other two institutions – Arthur Anderson and Curtis Mallet – argued that equitable estoppel should prevent the plaintiff from avoiding arbitration with regards to the claims against them as well. The District Court rejected the motion to stay, and the institutions appealed.

Section 16 of the Federal Arbitration Act creates a limited exception to the final judgment rule, allowing for interlocutory appeals of motions to stay pending arbitration. Section 3 of the Act, however, requires that such motions be based on “an agreement in writing. The question this panel of the Sixth Circuit considers is whether there is appellate jurisdiction over an interlocutory appeal of a denial of a motion to stay pending arbitration in the absence of a written arbitration agreement between the parties before the court.

Judge Daughtrey, on behalf of a unanimous panel, holds that the courts lack such jurisdiction. She notes that the circuits have split on this issue; the CAs 10,DC find such jurisdiction lacking as well, whereas the CAs 2 has held that it does have such jurisdiction. Finally, she notes that the Sixth Circuit is not deciding whether the district court should have applied equitable estoppel, quoting the CA 10 to show that the issue is whether the court has the jurisdiction to hear the case, not whether the district court got it right.

Wednesday, April 9, 2008

Split Noted: Does Informal Notice Suffice to Meet the Service Required for a Sanctions Motion?

Per Cadle Co. v. Pratt (In re Pratt), 2008 WL 933633, *7-*11 (5th Cir. Apr. 8, 2008)

This appeal is the third to reach the Fifth Circuit in a long-running dispute between the Cadle Company and Jack Pratt. Mr. Pratt, represented by Schiro, voluntarily filed for Chapter 7 relief. The Cadle Company, a creditor of Mr. Pratt, later moved to have the discharge set aside because Pratt had not revealed that he was entitled to payments from his mother’s estate. At trial, Schiro presented testimony that Pratt was not entitled to any distributions form the estate because he owed money for loans made to him. After trial, it became known that Pratt had, in fact, received money from his mother’s estate after her death. Cadle filed a motion for Rule 9011 sanctions against Schiro.

Rule 9011 of the Federal Rules of Bankruptcy Procedure requires a motion for sanctions to be served 21 days prior to its filing, so that the recipient has an opportunity to withdraw or correct the offending contention. This provision is substantially the same as the notice requirement of Rule 11 of the Federal Rules of Civil Procedure, and the two have been interpreted similarly.

Cadle did not serve Schiro with an advance copy of the motion for sanctions, but sent two different warning letters more than 21 days before he filed his motion for sanctions. The bankruptcy court held such informal notice insufficient to satisfy the notice requirement and denied sanctions. Judge Wiener, on behalf of a unanimous panel, notes that the circuits have split on this question. The CAs 2,4,5,8,9,10 all require formal service of the motion for sanctions, whereas the CA 7 permits informal notice that substantially complies with Rule 11. The CA 6 has conflicting panel opinions. Although the CA 1 has not decided the issue, the D.R.I. has held that informal notice does suffice. In light of the plain language of the rule and previous Fifth Circuit precedent, the panel affirms the denial of sanctions for failure to formally serve the motion.

Tuesday, April 8, 2008

Split Noted: Does the Same Standard of Substantive Reasonableness Apply to Both Initial Sentencing and Revocation Proceedings?

Per United States v. Robe, 2008 WL 918722, *3 (8th Cir. Apr. 7, 2008)

Donny Bear Robe pled guilty to involuntary manslaughter after he led police on a drunken high speed chase, during which a passenger was ejected from the open bed of his pickup. He was sentenced to two years in prison and three years of supervised release. Four months into his supervised release, Bear Robe was arrested for driving while intoxicated; he had a BAC of 0.214. The guidelines range for this violation is 3 to 9 months imprisonment, but the district court imposed the statutory maximum 24 months imprisonment and an additional 12 months of supervised release.

This Eighth Circuit panel reviews this sentence for its procedural soundness and substantive reasonableness. Judge Colloton, on behalf of a unanimous panel, notes that the circuits are split on what the proper standard to evaluate reasonableness. Appellate courts are directed by the statute to evaluate if a revocation sentence is “plainly unreasonable.” 18 U.S.C. § 3742(e)(4). In Booker, however, the Supreme Court excised this standard of review for initial sentencing in order to make the guidelines system advisory. In its place, the Supreme Court recommended an ‘unreasonableness’ standard, as opposed to ‘plainly unreasonable,’ to be applied in light of the § 3553(a) factors.

Most circuits – the CAs 2,6,8,10,11 – apply the same Booker standard to review both initial sentencing and revocation proceedings. The CAs 4,5, on the other hand, continue to apply the plainly unreasonable standard for revocation proceedings. The Eleventh Circuit has suggested that there really is no difference between the two. In this case, that is certainly true; the above-guidelines sentence is affirmed as both procedural sound and substantively reasonable.

Monday, April 7, 2008

Split Created: Can an Immigration Judge Consider Matters Outside the Record of Conviction When Classifying an Offense as a Crime of Moral Turpitude?

Per Ali v. Mukasey, 2008 WL 901467, *5-*11 (7th Cir. Apr. 4, 2008).

This Seventh Circuit decision, not to be confused this one (cert pending, considered reasonable - SCOTUSBlog) of the same name and circuit, resolves an intra-circuit split and creates a split between the circuits. Moreover, it does so convincingly; not one active judge requested that the case be taken en banc despite the fact that it does so.

Ibrahim Ali, a Jordanian citizen, has resided in the United States for more than twenty years and is married to a U.S. citizen. He also sold guns, without a license, to people not authorized to own them. He was convicted of violating 18 U.S.C. § 371, which prohibits conspiring either to commit a crime against the United States or to defraud the same. This conviction blocks most avenues of discretionary relief from removal; Ali is only eligible for readmission to the United States (and therefore to seek adjustment of status) if his crime is not one ‘involving moral turpitude.’

Fraud has long been recognized as a crime of moral turpitude. The formal crime for which Ali was convicted, however, did not require fraud – it only required either fraud or a conspiracy to commit a crime against the United States. “The presentence report adds: ‘it was further part of the conspiracy that the defendants misrepresented, concealed and hid, and caused to be misrepresented[,] concealed and hidden, the purpose of and the acts done in furtherance of the conspiracy’.” *6. Based on the consideration of this document, the immigration judge decided that this crime was one involving moral turpitude. The question that the Seventh Circuit reviews is whether such consideration is permissible.

This panel was confronted by conflicting circuit precedent – one case had permitted such consideration while two others found it impermissible. All of the other circuits had all previously forbidden consideration of materials outside the indictment and record of conviction. Their reasoning was based, in large part, on the Supreme Court criminal law precedents of Taylor and Shepard, which limit consideration of previous convictions to the statutory elements of the offense and the official record of conviction.

This panel reaches a different conclusion. Judge Easterbrook starts his opinion, on behalf of a unanimous panel, by noting that the classification of an offense as one involving moral turpitude is entitled to Chevron deference. The Board of Immigration Appeals has recently decided that an immigration judge may take additional evidence as needed to characterize an already proven offense. In Matter of Babaisakov (*5-*13), the BIA reasoned that when the characterization of the offense does not depend solely on the elements of the offense, the categorical approach does not apply. Judge Easterbrook continues to distinguish the precedents of the other circuits by noting their criminal law genesis – neither Sixth Amendment nor jury concerns are at issue in the immigration context.

I believe that this decision (or, more importantly, the change in the BIA position it notes) will prove influential if the question arises again in other circuits or is granted certiorari. That said, this case took me longer than normal to summarize because I am not at all familiar with the area, so I may be missing something big. Any and all input to correct my errors would be welcomed.

Split Noted: Do Volunteers Have Property Interests in Their Job?

Per Griffith v. Lanier, 2008 WL 900978, *6 (D.C. Cir. Apr. 4, 2008)

Plaintiffs are members of the District of Columbia Police Department’s Reserve Corps, a group of unpaid volunteers who assist the full-time policemen. In 2006, the Department issued regulations providing, in relevant part, that reservists could be dismissed at will. Plaintiffs filed suit, arguing that this regulation deprived them of a statutorily-conferred property interest in continued volunteer service. The district court granted summary judgment for the Department.

A due process claim requires a liberty or property interest. A property interest exists only when an individual has legitimate claim of entitlement, rather than unilateral expectation, to a benefit, which claim can be based on background law. This D.C. Circuit panel notes a split over whether volunteesr can ever have a property interest in an unpaid job regardless of whether the job is statutorily guaranteed – the CA 7 holds that they can; the CA 3, they cannot. The panel does not reach this question as it finds that the reservists have no statutorily guaranteed interest in keeping their jobs, and so it affirms.

Friday, April 4, 2008

Update: Can a District Court Require Its Sentence To Be Served Consecutively to an Anticipated, but Unimposed, State Sentence?

Per United States v. Donoso, 2008 WL 878562 (2d Cir. Apr. 3, 2008)

The Second Circuit widens this split, previously discussed on this blog here, by holding that a Federal court lacks this power. It also cites another opinion which was not included in the previous discussion, so the split now is between the CAs 2,4,6,7,9 (courts lack this power) (always surprising to see CAs 2,4, and 9 all on the same side of a split) and the CAs 3,8,10,11 (courts have this power).

Nonetheless, the procedural history of this appeal reveals a loophole that offers a district court a way around this lack of power in order to achieve the same result. The district court initially required its sentence to run consecutively to an as yet unimposed state sentence. A day later, the state court imposed sentence on Donoso’s guilty plea. The district court, sua sponte, invoked its power under Federal Rule of Criminal Procedure 35 (correction of clear errors), recalled the case, vacated its previous sentence, and resentenced Donoso, requiring the new sentence to run consecutive to the now-imposed state sentence. Interestingly, the Second Circuit affirms, holding that the district court's first sentence was clearly erroneous, even though the circuits have split on the question and there was no binding Second Circuit guidance. I can't seem to get the Second Circuit's webpage to work today, so apologize for the lack of a link to the opinion.

Wednesday, April 2, 2008

Update: What Constitutes One ‘Occurrence’ Under Liability Insurance Policies?

Per Madison Materials Co., Inc. v. St. Paul Fire & Marine Ins. Co., 2008 WL 867931, *4-*9 (5th Cir. Apr. 2, 2008)

The state-law based split over the meaning of ‘occurrence’ in insurance contracts, previously discussed on this blog here, proves decisive in this Fifth Circuit opinion, which holds that ten years of embezzlement are a single occurrence under Mississippi law’s interpretation of the relevant policy language. The Fifth Circuit holds that occurrence relates to the cause of the injury and that the single employee’s dishonesty caused all ten years of losses.

The CA 5 notes that an opinion from the CA 9, applying California state law, interprets similar policy language differently. As an initial matter, the relevant policy language was different (the Cali. case explicitly included a term limitation in the policy). More importantly, however, is the fact that this split turns on independent state grounds. The previous post contains the information necessary to distinguish these two cases.

Commentary: Originalism and Emergency Powers

The long awaited declassification of the torture memos has set much of the blawging world aflame. There are too many posts for to attempt a full link summary, but I will single out those whose continued coverage of the torture issue has been noteworthy: Balkinization, Convictions (Slate's new blog included by virtue because of the history of the Balkinization contributors and its current discussion), and Obsidian Wings (oh, how I wish Hilzoy wasn’t on vacation).

Others (particularly Marty Lederman) are doing point by point refutations of John Yoo’s analysis. To be honest, I simply lack the background knowledge to attempt to do the same. Instead, I want to engage and refute, on originalist terms, the background meta-level idea of the President as the King-in-wartime that both the memos and Justice Thomas’s opinion in Hamdi espouse.

In so doing, I will not rely on Supreme Court precedents or on founding-era commentary except for the single quotation of Youngstown in this paragraph. I do not believe either source to be helpful. For every Curtiss-Wright, there is a Youngstown; for every Hamilton, a Jefferson. “A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side . . . .” Instead, I shall try simply to read the Constitution holistically in order to see the general allocation of institutional competencies in emergency situations.

The United States Constitution is fairly unique among modern Constitutions (but similar to ones of its own era) in that it contains no explicit emergency provisions. Indeed, it is formulated as a Constitution for all times, to be applied within exigent circumstances as without. This entry takes the strongest reading of both congressional and presidential power, so as better to compare and contrast them. Such reading, however, does not necessarily comport with my normative position in the current debates – I read the necessary and proper clause more narrowly than provided for below.
  • Clear Congressional Powers

The two constitutional provisions that most directly relate to extraordinary circumstances, the habeas corpus clause and the Third Amendment, indicate the necessity of congressional involvement in such momentous decisions. While the habeas corpus clause does not, on its face, suggest who is to exercise the power of suspension, the location of this clause in Article I, section nine does – it is within the section on the limitations of the powers of Congress. Similarly, the Third Amendment dictates that even in times of war, no soldier shall be quartered in any house without consent, except as prescribed by a law – an act of Congress.

Other clear congressional competencies include the taxing power, as needed to “provide for the common defense and general welfare of the United States.” The President, like the English King, could not raise revenue to counteract an emergency without the consent of the legislature. Neither could he expend money on the same. “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” Appropriations bills must originate in the House, who are returned to the people every two years – a popular check on such expenses.

  • Clear Presidential Powers

The entire executive power, without the limitation of ‘herein granted’ as found in Article I, is vested in the President of the United States. Another telling difference in the powers of the President and Congress can be seen in the oaths that each must take: the President is obliged to “preserve, protect, and defend the Constitution of the United States,” whereas legislators are merely bound to ‘support’ it. When the two institutions are thus contrasted, it would seem clear that the President has some residuum of authority to respond to threats to the Constitution – to defend it. Hence the presidential duty to “take care that the laws be faithfully executed.”

  • Concurrent Powers: The Commander-in-Chief and Declarations

In making the unlimited grant of executive powers, the Constitution does include an exemplary list of the competencies included therewith, one of which is of especial importance in emergencies: the Commander-in-Chief clause. When considering this clause as a source of substantive power, however, a question arises: commander-in-chief of what? It was Congress that was given the power “to raise and support armies; but no appropriation of money to that use shall be for a longer term than two years.” Thus, whether there would be a standing army was left an open question, and the people could change their answer within any election cycle. In the absence of a standing army, it was for Congress to “provide for the calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.” Thus, Congress necessarily plays a role in the exercise of the commander-in-chief powers, whether by continuing authorizations for an army or by calling up the militia.

Only after the commander-in-chief clause and the congressional power of the purse are therefore understood in their proper relation, can the meaning of the power “to declare war” be examined. Originally, the founders had invested Congress with the entire power to make war. One delegate objected to this formulation because “its proceedings were to slow.” The substitution of ‘declare’ for make was proposed, “leaving to the Executive the power to repel sudden attacks.” The broadest reading of the congressional power to declare war leaves almost all war powers in its hands, excepting only the ability to respond to crises before legislative action is possible. The narrowest conception, on the other hand, allows the President certain discretion for initiative but still leaves significant power in the hands of Congress.

  • Contingent Powers: The Importance of Timing

Other provisions of the Constitution support the former broad reading and stress the importance of timing in the constitutional allocation of powers. The first such provision prohibits the states from engaging in war without the consent of Congress. The only exception to this general prohibition is if a state is actually invaded or “in such imminent danger as will not admit of delay.” The President is not consulted at all. Thus, Congress has control over the states’ ability to engage in war, subject to only the most exigent limitations.

Another provision of that has details relating to the timing of institutional competencies is the ‘guarantee clause,’ which concerns the states, and therefore has nothing to do with the allocation of competencies within the federal government. Nonetheless, it is quite enlightening as to the general conception of the division between the legislative and executive powers. It provides that the legislature of a state to decides when federal aid is needed to counter domestic violence. That power only devolves to the executive when the legislature is unable to convene. Only when the legislature is unable to meet a crisis, therefore, can the executive act of its own accord.

This last insight – that the executive may only act of its own accord when the legislature cannot convene – gives a new insight into a constitutional provision previously thought to have nothing to do with emergencies, the ‘state of the Union’ clause. The President “shall . . . recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient.” There is a hidden parallel between that clause and the ‘sweeping clause’ that the Congress is authorized to “make all laws which shall be necessary and proper for the carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States . . . .” If a President believes that some hitherto unauthorized action is necessary to fulfill his clear power to defend the Constitution, he may recommend to Congress that it make a law which permits him to carry his power into execution.

  • Powers in Action: ‘Constitutional’ Practices

This description of the Constitution necessarily reads much into the relatively vague lines of the text. “The evident openness of the text here reflected the framers’ genuine uncertainty as they struggled to invent a wholly new sort of executive. Thanks to its gaps and silences, Article II in effect delegated authority to the political branches to negotiate more concrete settlements.” Amar, 197. Thus, the structure of actual emergency governments may reveal ‘constitutional’ practices.

The argument above made much of the fact that only Congress could provide for the calling forth of the militia. Since the earliest days of constitutional practice, when it was confronted with the Whiskey Rebellion, Congress has delegated this role to the President. Thus, “Congress itself has recognized that the executive branch alone can properly exercise emergency power. Delegations of unusual power for the duration of some particular crisis have been made repeatedly since the founding of the Republic.” Rossiter, 219.

Nonetheless, it is notable that these powers must be delegated at all – that they therefore theoretically belong to Congress, and Congress could take them away. Even the experience the Lincoln administration does not deny this fundamental point. Yes, Lincoln unilaterally suspended habeas corpus, yes, he enlarged the military without statutory authority, and yes, he drew money from the treasury without appropriation -- so what? He was acting in the absence of congressional authorization because there was no sitting Congress to authorize his actions. Indeed, Congress had adjourned sine die, and thus ceased to exist as a law-making body. Lincoln appreciated that the powers he was exercising were not executive, but congressional, and accordingly laid them before the Congress which he called into extraordinary session for their consideration. In other words, his action was based on the contingencies of timing. He was quite clear that if Congress disapproved, he could be subject to impeachment.

  • Conclusions

If the first reading of the constitutional text supports a strong role for Congress, watching the Constitution in action certainly does not. For example, Congress has only declared war rarely while the President has ordered American troops into conflict abroad relatively frequently. By the mid-1970s more than 470 statutes delegated significant emergency powers to the President and four states of emergency declared by the President were still in force. Through a ‘constitutional’ practice of legislative delegation, the President today occupies the predominant position in emergency situations. Such position, however, cannot be said to be exclusive or inherent in the nature of the executive.

Split Noted: Does the Odor of Marijuana in the Passenger Compartment of a Vehicle Create Probable Cause to Search the Entire Vehicle?

Per Com. v. Garden, 2008 WL 835961 (Mass. Apr. 1, 2008)

A confidential informant told police that ‘Bubs’ was involved in a shooting and could now be found with three other men in a white car. ‘Bubs’ was a known alias of Leroy Wells, a felon with a history of violent crimes. Two hours later, officers saw Leroy Wells and two other men enter a black car as passengers. A registry search revealed that the owner of that car (a female) had a suspended license, giving the officers a reason to pull the car over. As the officer approached the car, they were able to see the driver – defendant Garden – was a man, removing the probable cause.

The officer, however, smelled burnt marijuana coming from the clothes of the occupants of the car. The police frisked Garden and Wells, and searched the passenger compartment of the car. No contraband was found. The officer asked the defendant for permission to search the trunk, and Garden said no. Nevertheless, the officer did unlock the trunk and discovered three pistols and two bags of marijuana.

The Massachusetts Supreme Judicial Court considers whether opening the trunk exceeded the permissible scope of a search justified by the odor of burnt marijuana coming from the clothes of passengers. They hold, in a 4-3 opinion, that the officer could not reasonably have believed that the smell was coming from the trunk – “it is unreasonable to believe people smoke marijuana in the trunks of cars.” Thus the search lacked any probable cause, and all of the evidence must be suppressed.

The dissenting judges note that the circuits are split on this issue. The CA 5 permits searches of the entire vehicle, whereas the CA 10 limits the search to the location in which the odor was detected. The states are also split, but a clear majority permits the search of the entire vehicle. Compare 114 A.L.R.5th 173 § 7 with id. § 6. Although this decision does not explicitly rely on the Massachusetts Constitution as an independent state ground, the heavy citation of Massachusetts precedent would seem to insulate it from any review.

Repeat readers of this blog might have noticed that my discussion of the decisions of state courts of last resort has had a decidedly northeastern flavor. That should not be taken as any indication of my location, but rather simply a reflection of the results of my search algorithm.

Tuesday, April 1, 2008

Split Created: Does Title VII Permit Third Party Retaliation Claims?

Per Thompson v. N. Am. Stainless, LP, 2008 WL 834005 (6th Cir. Mar. 31, 2008)

Plaintiff Eric Thompson and his wife, Miriam Regalado met while both worked for North American Stainless. Two years into her employment, Regalado filed a claim of gender-discrimination with the EEOC. Three weeks after the EEOC notified North American Stainless of the complaint, Thompson, whose engagement to Regalado was common knowledge, was fired. Thompson asserts that this constituted impermissible retaliation; North American states that Thompson was fired for performance reasons. Thompson sued for violation of Title VII, and the district court granted summary judgment for North American because Thompson failed to state a claim under the anti-retaliation provision of Title VII.

The anti-retaliation provision forbids employers from discriminating against any of his employees because, in relevant part, “he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” The issue in this case is that Thompson did not make or participate the charge; his fiancĂ©e/wife, Regalado, did. The question is whether the protections of the statute extend beyond the plain language of the section.

“Specifically, does Title VII prohibit employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action? As such conduct would undermine the purposes of Title VII, we hold that such retaliatory action is prohibited.” *3. In particular, the Sixth Circuit notes that the EEOC Compliance Manual specifically prohibits retaliation against closely-related third parties. *4.

In so holding, this divided panel creates a split from the other circuits to have considered the question. The CAs 3,5,8 all have rejected closely related third party retaliation claims, holding that the plain language of the statute trumps the risk that its purposes would be undermined. After discussing these cases, the dissent continues to note that the EEOC manual is entitled to no deference when the meaning of the statutory text is plain. On the other hand, the CAs 7 and 11 have permitted, in other circumstances, extra-textual readings of the retaliation provisions in to further to the goals of Title VII. This case strikes me as a prime candidate for review, either en banc or by the Court.

Interestingly, previous Sixth Circuit precedent provided persuasive authority for the CA2’s conclusion today in Holcomb v. Iona College – additional coverage from How Appealing and Wait a Second! – that “an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race.” *2. This proposition has been upheld by every circuit to have considered the issue (CAs 5,6,11 and now 2) despite the statutory language requiring the discrimination to be “because of such individual’s race.” (emphasis added). The courts have justified their conclusion because, if the discrimination is because of the association with someone of another race, the employee’s own race does play a role – it defines what another race is. I doubt that these broad readings of the statutory text must stand or fall together, given the textual linkage in the CA2’s justification, but the correlation is interesting.

Split Widened: Are the Provisions of 21 U.S.C. § 848(b) Elements of a Separate Crime, or Sentencing Factors?

Per United States v. Tidwell, 2008 WL 835252, *29 n. 5 (3d Cir. Mar. 31, 2008)

Before detailing the facts and holdings of this case, a little bit of statutory background is necessary. 21 U.S.C. § 848 concerns the offense of a continuing criminal enterprise. Section (c) defines the offense, and section (a) provides that the penalty for engaging in such offense is a minimum of 20 years and a maximum of life imprisonment. Section (b) raises the statutory minimum to life imprisonment for those who are leaders, principals, or organizers of those continuing criminal enterprises that either (A) distribute (in relevant part) more than 150 kilograms of cocaine or (B) receive over ten million dollars in gross receipts in one year.

Tyrone Tidwell pled guilty to engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(c). No part of the indictment contained facts beyond those necessary to establish a violation of that section, nor was he specifically charged with violation of § 848(b), the “super-kingpin” provision. Tidwell stipulated that his base offense level would be based on distribution of more than 150 kilograms of cocaine. During the rule 11 colloquy, the prosecutor informed Tidwell that his plea subjected him to a mandatory sentence of life imprisonment – that it triggered § 848(b).

The district court concluded that § 848(b) set forth sentencing factors which only needed to be proved by a preponderance of the evidence rather than providing a separate offense which would require proof beyond a reasonable doubt. Tidwell appeals, arguing that § 848(b) is a separate offense, the factual basis for which was neither set forth in the indictment nor proved beyond a reasonable doubt.

Congressional intent is the key to determining whether a statutory provision provides sentencing factors or elements of a separate offense. This Third Circuit panel engages in an extensive discussion of the relevant Supreme Court precedents, and concludes that the Court has emphasized the structure, format, background history, and text of statutes in making this inquiry. *10-*28. Applying these lessons to § 848(b), it reasons that the statutory headings (*30), text (*31-*32), structure (*33-*34), and background history (*35-*38) all support the conclusion that § 848(b) merely provides sentencing factors to be considered in a conviction for an offense proscribed by § 848(c). Were these arguments insufficient to reach this conclusion, the panel also cites legislative history supporting its result. *40-*42.

Finally, the panel notes that there is no violation of the Jones, Blakely, or Apprendi line of cases because the conduct to which Tidwell pled guilty already carried a maximum potential sentence of life imprisonment under § 848(a). *42-*49. While § 848(b) made this maximum also the minimum (and thus removed any discretion), it did not increase the penalty beyond the statutory maximum. Therefore, Tidwell’s sentence is affirmed. In a footnote, the panel admits that there is some tension between the Supreme Court precedent dictating this result (Harris and McMillan) and Apprendi, but that any such tension is for the Court to resolve.

Judge McKee acknowledges that this decision widens the split between the CA 7 (agreeing) and the CA 2. He notes, however, that only the Seventh Circuit has engaged in substantive analysis. The Second Circuit held, without further discussion, that the elements of § 848(b) must be proved beyond a reasonable doubt.