Split Widened: Can a Court Bypass Rooker-Feldman to Dismiss on Merits?

Per Cawley v. Celeste (8th Cir. May 9, 2013)

Rooker-Feldman is one of the more esoteric doctrines of federal jurisdiction.  In brief, it prevents state court losers from using a federal case to appeal their defeat.  Importantly, in 2005's SABIC decision, the Supreme Court clarified that the doctrine is statutory, based on 28 U.S.C. 1257, not constitutional.

Nearly every time that Rooker-Feldman could apply, the federal defendant will also have a strong preclusion defense.  After all, for Rooker-Feldman to apply, there must already be a state court decision on the issue.

The circuits have split on whether district courts must adjudicate the Rooker-Feldman jurisdictional issue first, or may reach the preclusion issue on the merits without determining jurisdiction.  The CAs 3,6,and 7 all have published decisions saying that Rooker-Feldman must go first, and the CAs 9, 10, and 11 agree in unpublished decisions.

On the other hand, this CA8 opinion joins  published opinions from the CAs 1 and 7 (yes, the CA7 has published on both sides), and unpublished authority from the CAs 2, 3, and 10 (the latter two demonstrating another intra-circuit split) to hold that the court may reach the merits.

The CA8's reasoning is so clearly correct that I cannot improve upon it:

Steel Co. acknowledged that a federal court may reach a merits question before deciding a statutory standing question because the merits inquiry and the statutory standing inquiry often overlap, and it would be artificial to draw a distinction between the two.  That rationale may not support bypassing all questions of statutory jurisdiction.  But we think it does allow a federal court to decide a question of preclusion without first resolving a murky problem under Rooker-Feldman, because our inquiries under preclusion law and the Rooker-Feldman doctrine would similarly overlap.

(p. 6 (citations omitted).)

Indeed, the interplay between Rooker-Feldman and preclusion seems to fall perfectly within footnote 2 of Steel Co.  A court should, in the interests of judicial economy, be permitted to bypass a difficult Rooker-Feldman question if the preclusion result is much simpler.

On an aside--and part of my reason for selecting this case for comment--the topic of Rooker-Feldman allows me to pay tribute to my favorite legal publication, The Green Bag.  Right after SABIC and another Supreme Court case, the journal published an amusing obituary for the entire Rooker-Feldman doctrine.

Split Created: Does 2255(e)'s Savings Clause Apply To Past Misapplications of the Guidelines?

Per Brown v. Caraway (7th Cir. May 10, 2013)

Royce Brown always maintained his arson conviction was not a crime of violence.  Turns out, under Begay, he was right.  But Begay came much too late.  Brown was sentenced in 1996 as a career offender (adding several years to his sentence) based in part on his arson conviction.

Ordinarily, after Begay, Brown could have filed a 2255 motion to challenge his sentence.  But Brown had already filed--and lost--a 2255 motion in 2000.  And 2255(h) bars second or successive motions.

Brown nonetheless sought to profit from Begay and filed a 2241 petition for habeas corpus.  But 2255(e) bars consideration of habeas petitions, unless a 2255 motion  "is inadequate or ineffective to test the legality of his detention."  (This quoted text is often referred to as the "savings clause").

In this case, the CA7 creates a circuit split by holding that the savings clause applies, and permits a habeas petition.  The CA 11 (en banc) and CA5 had previously concluded--also in the context of 2241 petitions based on Begay--that the savings clause did not apply.

I am of two minds.  On one hand, equity favors allowing some relief where a sentence is manifestly in error.  On the other, considerations of finality must trump at some point.  I lean slightly to the CA11 and CA5's view that the  savings clause does not apply because 2255 procedures are in fact effective and adequate, but unavailable only because of a previous collateral attack.

I lean that way in part because--unlike the CA7--I do not think this conclusion leaves prisoners without a remedy.  Even if both a 2255 motion and a 2241 habeas petition are unavailable, a prisoner could file a petition for a writ of coram vobis (not nobis, as discussed below).

As this blog has discussed earlier, coram vobis requires:

1. a fundamental error in the prior proceedings
2. reasonableness in not having acted earlier (i.e., though habeas)
3. collateral consequences from the prior proceedings (standing)
4. interests of justice require granting the writ (no alternative remedy)

Here, application of the career enhancement is a fundamental error increasing the sentence.  Brown both preserved the issue by objecting in the initial sentencing and acted reasonably in raising it again soon after Begay was decided.  Brown's lengthened sentence provides standing.  And--if both 2241 and 2255 are not available--there is no alternative remedy.

Thus, I ultimately come out at the same point as the CA7, but would use a different procedural tool to get there.  I feel that this procedural tool does less damage to the "second or successive" bar.  But I am not a criminal lawyer, and there may be something I am missing.

On a total aside, I am surprised that the vast majority of U.S. courts call the writ "coram nobis" (before us) rather than "coram vobis" (before you).  The names do not imply a difference in procedure or remedies.  Rather, the distinction arose in English common law depending on whether a writ petition was filed before the King's Bench--where the King was supposed to preside, and so using the royal "we/us"--or Common Pleas, where the King did not preside, so the writ was only before "you" judges.  As America has no king, it would appear that "coram vobis" is more appropriate.

Split Widened: Can The Venue of Post-Judgment Garnishment Proceedings Violate The Fair Debt Collection Practices Act?

Per Smith v. Solomon & Solomon, P.C. (1st Cir. Apr. 24, 2012)

This unanimous opinion (including Retired Justice Souter) widens a split concerning the venue provisions of the Fair Debt Collection Practices Act (FDCPA).  In brief, the FDCPA requires debt collectors to file any suit "against a[] consumer" where the consumer either (a) "resides" or (b) signed the document giving rise to the debt.  15 U.S.C. 1692i.  Failure to do so can result in civil liability.

The split at issue does not concern initial suits against the consumer to reduce the debt to judgment.  Instead, it concerns the venue for post-judgment enforcement proceedings.  The venue provisions of the FDCPA are still relevant because the FDCPA defines "debt" as "any obligation or alleged obligation of a consumer . . . whether or not such obligation has been reduced to judgment."

The CA1 nonetheless joins the CA11 in holding that, under the relevant state law (Mass. and Ga.), post-judgment garnishment proceedings are not governed by the FDCPA's venue provisions, because it is not a suit "against [the] consumer" (wage-receiver), but rather are against the employer/wage-payor.  (p. 4, 6.)  The CA9 had earlier reached the opposite conclusion, holding that under California law a garnishment action was against the consumer.  (p. 5, 8).

I think the CA1 gets this exactly right.  But I am concerned about the extent to which these decisions make the availability of garnishment or other enforcement remedies depend on the vagaries of state law.  Why should a consumer in Massachusetts be subject to garnishment if his employment is in a different county, but not a consumer in California (or Ohio)?

I think there is another way to reach the right result, one that would have resulted in the CA9 also holding in favor of the collector  As the CA9 opinion notes, Congress passed the FDCPA venue provisions to ensure that consumers would not have to defend against suits in far-away, inconvenient courts.  But a garnishment suit--whether against the consumer or employer--filed wherever the consumer actually works cannot be inconvenient, as the consumer already commutes there daily.

In other words, I would treat "resides" in the venue provision as including every jurisdiction where the consumer would be subject to general (not specific--thats why the signature provision exists) personal jurisdiction.  If a consumer has a house in County A, but works in County B, his continuous and systematic presence in county B would dictate that he "resides"  in both for FDCPA purposes, and County B's exercise of jurisdiction surely would not offend notions of fair play.

True, the noun residence is ordinarily understood as a dwelling.  But--especially with the long hours at firms--a good argument could be made that I dwell both at work and home.  In the words of an old CA2 case:

Domiciliaries are those who have a fixed, permanent and principal home and to which, whenever absent, they always intend to return. At the opposite end of the scale are transients, those persons who are just passing through a locality. In between these notions of permanence and transience are residents. Residency means an established abode, for personal or business reasons, permanent for a time. 

Split Widened: Does U.S.S.G. 2G2.2(b)(3)(F) require knowledge?

Per United States v. Robinson (7th Cir. Apr. 9, 2013)

Although I am far more of a textualist than he, I am a fan of Judge Posner.  But this is one of the worst opinions from him that I have read.  It is internally contradictory, overlooks the obvious implications of the authorities it relies on, and creates an unnecessary make-work remand.

The split at issue is whether distribution has to be knowing for purposes of 2G2.2(b)(3)(F).  The text of the relevant commentary defining "distribution" and "distribution to a minor" provide:

"Distribution" means any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant. 

"Distribution to a minor" means the knowing distribution to an individual who is a minor at the time of the offense

The CA10 held that knowledge was not required because (1) the text of the commentary is silent with respect to mens rea, (2) the usual presumption of a mes rea requirement, applicable to criminal laws, does not apply to Guidelines, and (3) reading a mens rea requirement into the definition of distribution would render the word "knowing" in the definition of distribution to a minor superfluous.

Here, the CA7 joins the CA8 (whose opinion is quite opaque) to reach the opposite conclusion, that knowledge is required.  (p.3.)  It provides only one reason for this conclusion:  that strict liability is disfavored in the criminal context.  In addition, Judge Posner rejects the argument (apparently not made) that knowledge of a peer-to-peer network's capabilities would make distribution "knowing," on the grounds that the criminal presumption of knowledge of the law does not apply in the Guidelines context.  Finally, Judge Posner rejects the CA10's superfluity analysis by reading the commentary's use of "knowing" to apply to the fact of the recipient's minority, rather than just to distribution.

As intimated in the introduction, I am inclined to agree with the CA10.  The relevant commentary is silent, the canon against superfluity applies, and the presumption of a mens rea does not apply to the guidelines.  With respect to Judge Posner's attempt to rebut the canon against superfluity, knowing should be read as modifying its closest noun, distribution, and not minor.

Moreover, Judge Posner's analysis is self contradictory in two respects.  First, he relies on the criminal law presumption of a mens rea, though numerous circuits have concluded that that presumption does not apply to the Guidelines, while rejecting the criminal law presumption of knowledge of the laws precisely because of the Guidelines context (though numerous circuits have applied this presumption to the Guidelines).  Second, Judge Posner notes that the Sentencing Commission has taken note of the split between the CA8 and CA10, and has stated "the guideline could be amended to better distinguish between more and less culpable distribution conduct.”  (p.5 (emphasis added).)  But he fails to draw the obvious conclusion:  That in the Sentencing Commission's view, unknowing conduct is still distribution, albeit less culpable.

What makes this all the worse, however, is that the opinion is reviewing for plain error.  Certainly, as the analysis above shows, the knowledge requirement is not plain.  (Judge Posner's opinion only introduces the plain error framework after undertaking what appears to be a de novo review of the Guidelines).  Plus, for a reversal on plain error, the defendant has the burden of showing that the error affected his substantial rights.  Here, I do not know how the Defendant could possibly have met that burden, where the ultimate sentence imposed was at the low-end of the guidelines range without taking the 2G2.2(b)(e)(f) enhancement into account.  Judge Posner entirely overlooks the burden of proof, and does not require the Defendant to offer any evidence that the sentencing judge might have or would have imposed a lesser sentence under a supposedly "proper" guidelines calculation.  This ultimately results in a make-work remand, unnecessarily burdening the judicial system..

Split Widened: Does Bankruptcy Stay a Tax Court Appeal?

Per Schoppe v. Comm'r (10th Cir. Mar. 28, 2013)

Never has my textualism been more difficult to follow.  I am 100% sure that Congress meant to accomplish what its words seemingly (but not too surely) preclude.  I strongly recommend that any legislation/statutory construction professors use excerpts of some of the historical (not necessarily current) cases on both sides of this split.  For example, the Ninth Circuit has a good discussion about when not to apply the canon against superfluity.

Even better, the issue is relatively simple to explain.  A bankruptcy filing automatically stays most proceedings against the debtor.  Courts have interpreted this stay to apply to cases where the debtor is the appellant, provided that he was the defendant in the underlying proceedings.

The split concerns whether the stay applies to debtor appeals of tax court proceedings, where the debtor must initiate the tax court proceedings against the Commissioner, but will never actually receive any affirmative relief, but only a potential reduction/elimination of a deficiency.  Are such proceedings "against" the debtor, so that they can be stayed?

Here, the CA10 joins the CA11 in saying no, the stay does not apply.  The CA9 said yes.  As indicated above, I have a really hard time figuring out where I would come out.

On one hand, it is entirely clear that Congress intended the stay to apply.  Indeed, the statute explicitly covers proceedings in the tax court, see 11 USC 362(a)(8), and there is no logical reason why lower court but not appellate proceedings should be covered.

On the other hand, it also fairly clear that the relevant statutory text does not cover tax court appeals.   The stay covers:

 the commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor . . ., or to recover a claim against the debtor that arose before the commencement of the case under this title.

Id. 362(a)(1).  For three reasons, this does not apply.  First, the tax court proceeding is initiated by the debtor, against the commissioner.  Second, the tax court proceeding is not a continuation of the administrative process against the debtor, because the Supreme Court has said that tax court proceedings are judicial proceedings not subject to deferential review.  Third, tax court proceedings are not to recover a claim against the debtor, because the court cannot afford the Commissioner affirmative relief (that's for the administrative mechanisms), just uphold or reject the deficiency calculation.

In the end, I believe I would concur dubitante (background) in whatever path my hypothetical panel chose.  Certainly, my textualism points me toward thinking (like the CA10 here) that the stay doesn't apply.  At the same time, the CA9 opinion on the other side is quite strong, and purposivism suggests that the stay should apply.  I could textually justify applying the stay in two ways:

1. Treating a tax court proceeding as a declaratory judgment action, with the debtor as the declaratory judgment plaintiff seeking to avoid potential liability.  Then, hypothetically realigning the parties (as permitted by the Supreme Court) to treat the tax court proceeding as against the debtor.  See Pub. Serv. Comm'n of Utah v. Wycoff Co., Inc., 344 U.S. 237, 248 (1952)
2. Treating the tax court appeal as the "continuation of a proceeding before the United States Tax Court," even though the appellate proceedings are no longer before the Tax Court.

Split Widened: Is Use of a Fake Social Security Card for Employment Morally Turpitudinous?

Per Marin-Rodriguez v. Holder (7th Cir. Mar. 6, 2013)

This Seventh Circuit opinion widens one split, while continuing another.

The first, already extant split concerns whether immigration courts (IJs or the BIA) may consider material outside the record of conviction when determining whether a crime constitutes a crime of moral turpitude.  This blog already discussed the split here.  In brief, the CA7 and the Attorney General have concluded that, because the immigration context does not raise Sixth Amendment concerns, immigration courts should not be limited to the categorical and modified-categorical approaches to past convictions.  (p. 6-7.)  The CAs 3, 4, 8, and 11 have rejected this position.  (Id. at n.3.)  For the reasons discussed in my prior post, I am persuaded by the minority of the CA7 and AG, although the majority also has strong arguments (primarily based on a 1951 Supreme Court precedent holding that the words "moral turpitude" had a positive and fixed meaning).  To say the least, this is an issue ripe for certiorari review.

But not in this case.  This case did not even reach outside the modified categorical approach, which revealed that the alien had used a fake social security card for employment.  The CA7 joins with the CAs 5, 6, and 8 in determining that such fraudulent actions necessarily involve moral turpitude, because the false social security card is used to deceive the employer, or anyone examining the employer's records.  (Fraud is a prototypical example of moral turpitude.)  The minority--only the CA 9--relies on an entirely different statute, 42 U.S.C. 408(e)), which grants amnesty for having previously used false social security cards to aliens granted citizenship.  The CA9 believes that the exemption demonstrates that the use of a false social security card is only malum prohibitum, and not malum in se.  I would conclude the opposite.  The amnesty demonstrates that the use of a false social security card is malum in se, but to be forgiven when the alien is given a new shot at becoming a law-abiding citizen.

In all, a correct--and well-written--opinion by Judge Manion, but certainly some issues that may warrant certiorari review if a better vehicle presents itself.

Split Widened: Is the Definition of Arbitration a Matter of State or Federal Common Law?

Per Bakoss v. Certain Underwriters at Lloyds of London (2d Cir. Jan 23, 2012)

The Federal Arbitration Act announced a national policy in favor of arbitration, and the Supreme Court--through cases like Concepcion and CompuCredit--has been active in ensuring that policy is fulfilled.

Nonetheless, several circuit splits persist.  This split concerns the very foundation of the FAA, the meaning of "arbitration" in section 2:

A written provision in a . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . .  shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Is arbitration to be defined as a matter of federal common law, or a matter of state law?

The CA2 joins the CAs 1, 6, and 10 in applying federal common law.  (p.5.)  In contrast, the CAs 5 and 9 define arbitration with respect to state law.

The majority is clearly right.  The FAA was intended to announce a national policy.  Having that national policy limited by the vagaries of state definitions of arbitration makes no sense.

Despite a clear split, I am not sure this is a candidate for review.  Not only is the CA2 on the right side of the split (or, at the very least, the side of the split clearly favored by recent Supreme Court FAA jurisprudence), but the opposing decisions are also quite old and might be revisited by their respective circuits in light of the last 20 years of that Supreme Court jurisprudence.

On the note of federal common law, the "Erieblogging" series on Prawfsblog is quite informative for those who do not have Civ Pro nightmares.

Split Widened: Must The Statement, Or The Falsity, Be Material For 18 U.S.C. 922(a)(6)

Per United States v. Abramski (4th Cir. Jan. 22, 2013)

Former police officer Abramski was suspected of robbing a bank.  In the course of investigating that crime, for which the Government apparently found no evidence (p.5), FBI agents uncovered Abramski's purchase of a handgun for his uncle.  Abramski purchased the gun because he was able to obtain a favorable police-officer price, and he concealed the fact that his uncle, who was legally entitled to own guns, was the ultimate purchaser.

As a result of this discovery (and the lack of proof of bank robbery), Abramski was indicted for violating 18 U.S.C. 922(a)(6), making a false statement material to the lawfulness of a firearm sale.  In relevant part, the statute criminalizes:

[K]nowingly mak[ing] any false or fictitious oral or written statement . . . intended to deceive such [licensed] importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . .

(Emphasis added).  Abramski challenged the indictment, contending that the concealment of his uncle was not material because the uncle is legally entitled to purchase firearms.  The district court denied Abramski's motion, and Abramski pleaded guilty while reserving his right to appeal.  The Fourth Circuit affirms, in the process widening a split between the CA5 and the CAs 6, 11, and now 4.  (p. 12-13.)

The split concerns whether "material" simply modifies the statutory term "fact," or also modifies "false or fictitious."  Put another way, the split concerns whether the question answered falsely must be material (CA4, 6, 11), or whether the falsity of the answer must itself be material (CA5). 

I agree with the majority school.  The text of the statute indicates that material modifies fact.  Thus, Abramski's concession that the identity of the purchaser is sometimes material--e.g., where the purchaser cannot legally buy guns--dooms his argument. 

More importantly, to be material, a fact does not necessarily have to affect the outcome of the decision (here, the decision to sell the gun).  Instead, a fact must simply be "capable of influencing" the decision.  Kungys v. United States, 485 U.S. 759, 770 (1988).  The identity of the purchaser is capable of influencing the decision to sell a gun, because some individuals cannot buy guns.  Therefore, identity is material.

Split Widened: Must Evidence Be Admissible To Constitute Brady Material?

Per Johnson v. Folino (3d Cir. Jan. 16, 2013)

The standard of review governing alleged Brady violations is fairly well settled.  A new trial (or habeas) will be granted only if (1) the state suppressed (2) material evidence (3) favorable to the accused.

The split at issue here concerns the second factor, i.e., how to determine if the suppressed evidence is material.  Suppressed evidence is material if there is a reasonable probability of a different result if the evidence been disclosed. 

The CA4 holds, as a matter of law, that inadmissible evidence can never be material.  Other circuits--the CAs 1,2,6,11 and now 3--hold that while inadmissibility is a factor weighing against materiality, it is not a per se bar.

To be honest, the existence of this split surprised me.  The majority school is simply correct.  While inadmissibility is a factor (and perhaps a strong one) indicating that the supressed evidence could not have affected the trial, it is not outcome-determinative.  For example, inadmissible evidence may later become admissible for purposes of impeachment, or may lead to the discovery of additional, and admissible, evidence by altering case-preparation strategies.  And even if none of these events come to pass, the inadmissible evidence may at least alter case-presentation strategy, such as by inviting the jury to consider a theory that is plausible even though not supported by any (admissible) evidence.  

Thus, the CA4 is simply wrong.  Even the case it relies on goes beyond noting inadmissibility to show that the defense attorney would not have prepared any differently had the suppressed evidence been disclosed.

More generally, my Brady concern focuses mostly on the third factor--favorable to the accused.  I am baffled by the issue of how a prosecutor is supposed to determine what is, and what is not, favorable.

Consider, for example, the sentencing of a drug dealer.  Most prosecutors would think a former co-conspirator's admission regarding drug weight to be prejudicial.  Yet, in one of my cases, we successfully used this evidence to mitigate our defendant's personal responsibility and obtain a variance.  Nonetheless, had the prosecutor in that case not followed an open-file policy, he almost certainly would not have viewed the material as being subject to a Brady disclosure obligation.

My general line of work civil tort defense.  I am consistently surprised by the ability of most plaintiffs lawyers to turn any fact, no matter how harmful on its face, into an apparent strength.  Criminal defense attorneys often display the same adaptability.  Yet a strict interpretation of favorability would limit such adaptation.  Thus, I fall on the side of favoring open-file prosecutions in the interests of justice.

Split Created: Addict's Risk of Relapse As Disability Under ERISA

Per Colby v. Union Sec. Ins. Co. (1st Cir. Jan. 17, 2013)

I hated ERISA cases as a clerk.  They were like petitions for review of agency action, requiring record-intensive factual review in an area where the governing law is generally settled--i.e., defer to "reasonable" interpretations of statute/plan language provided there is "some evidence" to support factual positions.  Except that in ERISA, the "agency" record consisted of hundreds of pages of undecipherable doctor's scrawl and review of that record required some medical knowledge.

But enough about me, and onto this relatively straightforward split.  Can an ERISA plan administrator apply a per se rule barring disability benefits for on-the-wagon addicts?  The CA4 said yes, relapse is a choice not a disability.   The CA1 now says no, the present risk of relapse can (but does not have to) amount to a disability.  (See p. 16, 19-20.)  To the extent it influences your opinion, plaintiffs in both cases were anesthesiologists who became addicted to the drugs they administered.

I agree with the CA1.  The CA4's reasoning just looks sparse to me.  In essence, the CA4 ruled that the pre-existing division in precedent on this point ipso facto rendered the administrator's interpretation of the plan reasonable.  But the CA4 performed no analysis of the plan's text--i.e., the definition of disability--itself.  In contrast, the CA1 performs just such a textual analysis and demonstrates how addiction and risk of relapse fall within the plain language of the plan.

That said, I am not on board for all of the CA1 opinion.  For example, the Court bolsters its textual analysis with a reference to the contra proferentem doctrine.  (p. 17.)  But there is a circuit split on whether contra proferentem can ever apply to ERISA plans.  (CA9 yes; CA8 no).  Even assuming the doctrine could apply, moreover, its application is quite troubling where (as here) the plan administrator is explicitly granted discretion to resolve ambiguities.  Unlike certain canons of construction (such as expressio unius or noscitur a sociis), contra proferentem--like the rule of lenity--is a policy-based rule that only comes into play when the statute (or contract) is determined to be ambiguous.  But ambiguity should trigger the administrator's discretion not policy-based canons.  (This is the CA10's approach to contra proferentem in the ERISA context).

The existence of multiple circuit splits make this case an interesting candidate for review, especially where the Court semi-regularly grants cert to clarify ERISA jurisprudence.  If the Court does take cert, I hope it will deal with the contra proferentem issue in the broader context of Chevron deference.  The circuits are currently split on whether to apply traditional canons of statutory construction at Chevron step one, in determining whether the statute plainly addresses an issue.  My view is that some, but not all, of the canons should be applied.  More specifically, the text-based canons should be applied in determining whether Congress has spoken clearly, but not the policy-based canons, which operate more as a thumb on the scale than as an interpretative tool.

Since I opened with a side note, I might as well close with one.  It appears that the First Circuit must batch cases for each panel, and that this panel received the "circuit split" batch.  At least three of my previous posts have related to decisions also arising out of this same sitting.  As before, my best wishes go out to Judge Boudin and his family.

Split Created: What is a Second or Successive Habeas Petition

Per Suggs v. United States (7th Cir. Jan. 17, 2013)

AEDPA bars second or successive habeas petitions.  Here, the prisoner's first petition resulted in resentencing.  Now the prisoner challenges his conviction in a second petition.  Relying on past circuit precedent, a divided panel of the CA7 holds the petition barred, because the conviction issue could have been raised in the first petition.  (p. 8).

The CA2 and CA9 disagree.  (p. 11.)  The correct result is a very close call but I tend to agree with Judge Sykes' dissent and the other circuits:  The petition is not second or successive because the intervening resentencing creates a new judgment, and habeas petitions are directed at judgments.  At bottom, though, I question the panel procedure of the CA7.

The split revolves around the interpretation of a recent Supreme Court decision, Magwood v. Patterson, 130 S. Ct. 2788 (2010).  In Magwood, the Supreme Court held that a petition directed at the new sentence, following resentencing after an initial petition, could not be second or successive:  "[B]oth § 2254(b)'s text and the relief it provides indicate that the phrase 'second or successive' must be interpreted with respect to the judgment challenged." 

Magwood, however, specifically reserved the question here, and did so with a footnote apparently favorably citing past circuit practice:

The State objects that our reading of § 2244(b) would allow a petitioner who obtains a conditional writ as to his sentence to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction. . . .  This case gives us no occasion to address that question, because Magwood has not attempted to challenge his underlying conviction.[fn]

fn.:Several Courts of Appeals have held that a petitioner who succeeds on a first habeas application and is resentenced may challenge only the "portion of a judgment that arose as a result of a previous successful action."

This reservation and citation would seem at first glance to leave past precedent intact.  Nonetheless, the statutory interpretation of Magwood--that second or successive refers to judgments, not claims--fatally undermines past precedent and demands that any petition following a new sentence not be barred because there is a new judgment.

I do not fault the Seventh Circuit majority for following past precedent because it was not explicitly overruled.  This is a very close issue.  I do fault the panel, however, for not pre-circulating their opinion.  As this blog has previously noted, Seventh Circuit Local Rule 40(e) demands precirculation where, as here, an opinion creates a conflict among circuits.  Precirculation would have also been required had the opinion adopted the position of other circuits and overruled past precedent.

In sum, regardless of the position adopted, this case should have been considered for en banc review prior to publication.  And the en banc court may have felt more liberty to depart from past precedent to follow the logic of Magwood.

Split Widened: Yardstick by which to evaluate Governmental Interest in Medicating Criminal Defendant

Per United States v. Gutierrez (5th Cir. Jan. 11, 2013)

Sell v. United States, 539 U.S. 166 (2003), sets the due process standard for forcibly medicating a criminal defendant in order to achieve competency.  In brief, the government must show "[1] the treatment is medically appropriate, [2] is substantially unlikely to have side effects that may undermine the fairness of the trial, and, [3] taking account of less intrusive alternatives, is necessary significantly to further [4] important governmental trial-related interests."  Id. at 179.

Sell provided additional instructions concerning each of its four factors.  The split at issue in this case (p. 13) concerns the fourth Sell factor, namely how to determine if the government has important trial-related interests.  Sell listed a number of subfactors bearing on this inquiry, including:

• whether the crime is serious,
• the availability of civil commitment, and
• the potential length of confinement after medication and trial.

Id. at 180.

Most circuits, including now the CA5, look to statutory maxima authorized for the indicted crimes to determine both whether the crime is serious and the potential length of confinement.  (See p. 13, citing decisions from the CA2, CA4, and CA10.)  In contrast, the CA9 looks to the probable guidelines range rather than the statutory maxima.

The CA5 provides a number of strong reasons for its view, including that the guidelines range cannot be determined without a pre-sentence investigation into the offender's history and characteristics, and even it could be, the guidelines range remains only advisory. 

Nonetheless, I come down somewhere in the middle of the split.  A court should not consider only the guidelines range, for the reasons stated by the CA5, but neither should a court consider only the statutory maxima, which are so rarely imposed.  Instead, both yardsticks can be used together.  A trial judge can use his experience--as under Twiqbal's plausibility standard--to determine what weight to give each yardstick.

At bottom, this split is likely caused by the use of a muddled, multi-factor due process test, and the inherent subjectivity of words like "important."  The legal realist in me assumes that with such fuzzy tests, trial judges likely first arrive at what they view to be the appropriate result, and only then express their reasoning in a manner permitted by precedent.  Recognizing this, I believe it better to permit trial judges to consider, and express, all relevant factors.  And, for the reasons explained by courts on both sides of this split, the guidelines and the maxima are both relevant considerations.

Split Widened: Parker Antitrust Immunity and Interlocutory Appeals

 Per Auraria Student Housing v. Campus Village Apts., LLC (10th Cir. Jan. 4, 2013)

Per an agreement between UC-Denver and Campus Village, a private apartment complex located a half mile from school, most incoming freshmen are required to live at Campus Villiage.   Auraria, another apartment complex located two miles from the school, alleges that this agreement violated the Sherman Act.

Campus Village appeals the denial  of its motion to dismiss, asserting state action/Parker immunity from the antitrust laws.  Auraria, in turn, moves to dismiss the appeal for want of jurisdiction.

The CA10 notes a split over whether a denial of Parker immunity, like a denial of qualified immunity, is immediately appealable under the Cohen doctrine.  The CA4 and CA6 say no; the CA5 and CA11 (and apparently others, including the CA7) say yes.  (p.3.)

The CA10 claims not to have to resolve this split, because it is dealing with a private party appeal, which even the CA5 would not permit.  Appeal dismissed.  (The CA11 would permit the appeal, however, so at least one split is widened.  (p. 7.))

I dont buy it.  But it likely doesn't matter given the Supreme Court's docket.

I honestly dont know where I come down on the general question of interlocutory appeals by actual public entities/officials (such as municipal governments).  My best guess is that Parker was a statutory interpretation case driven by a 10th/11th Amendment immunity, given the time at which it was decided, and so appeals should be permitted.  This is the logic of the CA5.  On the other hand, post-Garcia v. SAMTA, Parker could be viewed as a statutory interpretation case driven by federalism, not immunity, concerns.  (Leaving aside my views of Garcia, that case would seem to remove any constititional bar to having the Sherman Act apply to the states.)  This is the logic of the CA4 and CA6.

Regardless, once interlocutory appeals are permitted under Parker at all, I see no viable distinction between municipalities and private entities.  If the private entity's claim of Parker immunity is correct, it--like a municipal entity--is, in effect, an agent of the state tasked with carrying out the state policy and clothed authority of the state, i.e., a public official.  The only potential difference between a private entity and a municipal entity is that, for Parker to apply to a private entity, there must be active state supervision.  California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980).  But this distinction weighs in favor of, not against, interlocutory appeals.  Cf. Richardson v. McKnight, 521 U.S. 399, 413 (1997) (reserving question of whether qualified immunity would protect private prison guards if there had been active state supervision).

Nonetheless, I am not sure this discussion matters all that much.  First, if a state is actively supervising a private entity, and that private entity is sued, likely the state could appear as amicus to assert its own immunity.  The lack of intervention may give the lie to the claim of state authority.  Second, and more importantly, the Supreme Court recently heard argument in FTC v. Phoebe Putney Health Sys., Inc., and seemed inclined to impose a clear statement rule for state authorization of a private monopoly. 

Split Widened: Test for Reimbursement of Residential Placement Under IDEA

Per Jefferson County Sch. Dist. R-1 v. Elizabeth E. (10th Cir. Dec. 28, 2012)

IDEA is a font of federal litigation.  In this case, the Tenth Circuit widens an extant circuit split concerning the interpretation of 20 U.S.C. § 1412(a)(10)(C)(ii) by creating a new, third position.

The statute provides: 

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.
 

20 U.S.C. § 1412(a)(10)(C)(ii) (emphases added).  The italicized terms are defined elsewhere in the statute:

• Special education:  "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including . . . instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings." 20 U.S.C. § 1401(29)(A). 
•  Related services: "transportation, and such developmental, corrective, and other supportive services (including . . . psychological services, . . . social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services . . . and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education" 20 U.S.C. § 1401(26)(A).
• Secondary school: "a nonprofit institutional day or residential school, including a public secondary charter school, that provides secondary education, as determined under State law. . . ." 20 U.S.C. § 1401(27)

In brief, then, the statute permits reimbursement of private educational expenses if (1) the public school did not provide free and appropriate public education (FAPE) , and (2) the private school is proper (or appropriate).  (See p. 10.)

The Tenth Circuit notes that the circuits have, to date, taken two approaches in determining whether (2) a private school is appropriate.  The CA1, CA2, CA3, CA4, CA6, CA8, CA9, CA11, and CADC all largely employ an "inextricably intertwined" test that evaluates whether the general purpose of the private  placement  and/or specific private services are "segregable" from the educational goal.  If segregable, not reimburseable; if not segregable, reimburseable.  (pp. 10-13, 20.)

In contrast, the CA5 and CA7 espouse a "primarily oriented" standard that examines whether (1) the general purpose of the private placement is primarily educational (as opposed to medical/social/etc.) by determining whether it is necessary to achieve an educational goal, and (2) the specific private expenses are related to that educational goal by determining if progress is measured by an educational yardstick.  (pp. 14, 20-21.)

After laying both these tests out, the Tenth Circuit declines to follow either.  Although it explicitly disclaims doing so (p. 21 n.5.), the CA10 adopts a new test tied directly to the statutory language:

(2) Determine whether the private placement is a state-accredited elementary or secondary school; if not, the placement is not reimbursable.  20 U.S.C. §§ 1412(a)(10)(C)(ii), 1401(27); then

(3) Determine whether the private placement provides special education, i.e., "specially designed instruction . . . to meet the unique needs of a child with a disability"; if the placement provides no such instruction, it is not reimbursable.  Id. § 1401(29)(A).

(4) If the private placement provides additional services beyond specially designed instruction to meet the child's unique needs, determine whether such additional services can be characterized as "related services" under the Act.

 (pp. 19-20.)

In all, my hat is off to the CA10.  As longtime readers know, Im a textualist.  And this test is the only one that adheres to the statute's text, as the opinion itself repeatedly points out.  Moreover, the opinion is also successful in pointing out the flaws in the other tests.  The segregable test is overinclusive, in the sense the dialysis is certainly necessary to an education, but not at all educational.  (p. 12.)  And the primarily oriented test is both over and under inclusive, in that it would exclude purely medical services necessary to allowing educational instruction, but include educational services that are not "required" for an appropriate education.  (p. 23.)

Again, an interesting split.  I hope other circuits take note.  But the case makes a poor vehicle because the lower courts (both district and administrative) concluded that reimbursement was proper under any of the tests.  (p. 15.)

Split Widened: Remedy for 6th Amendment Violations During Competency Hearings

Per United States v. Ross (6th Cir. Dec. 31, 2012)

Oh, the irony of law.  In a case of apparent first impression, (see p. 10), a divided panel of the Sixth Circuit concludes that it is statutory and constitutional error to permit a criminal defendant, who has already been deemed competent and waived representation, to represent himself at a later competency hearing.  (p. 8-9, 11.)

That's right.  First, the defendant was deemed competent.  Then, the competent defendant knowingly waived representation.  Third, at the request of the prosecutor, the district court held a second competency hearing where it permitted the defendant to represent himself.  Finally, and after conviction, the defendant claims error in permitting self-representation at the second competency hearing (when he had already invoked his right to self-representation).

One would think the doctrines of invited error and/or waiver would come into play.  But of course, those doctrines assume knowing and voluntary, i.e., competent, acts.

The circuit split comes in determining the remedy for this constitutional error, or classifying the type of error.  (See p. 16.)  Ordinarily, Sixth Amendment violations are treated as "structural" errors, with a per se rule of reversal regardless of prejudice.  The CA3--and now the CA6--applies that rule to denials of counsel at competency hearings.  Nonetheless, the CA10 and CADC have treated denial of counsel for a competency hearing as "trial" error, subject to constitutional harmless error analysis. 

Partially because of the bizarre facts of this case, I would be inclined to treat the error as "trial" error, in line with the approach of the CA10 and CADC.  The two traditional justifications for the "structural" error doctrine are not present. 

First, because the Court had already held a competency hearing and permitted Defendant to waive representation (at which times the Defendant was represented), there was no "structural defect affecting the framework within which the trial proceeds."  Arizona v. Fulminante, 499 U.S. 279, 310 (1991).  Instead, there was a mere "error in the . . . process" of this one hearing.  Id. 

Second, because the defendant had already been found competent to waive counsel initially, his lack of representation does not "necessarily render [the] criminal trial . . . unreliable."  Neder v. United States, 527 U.S. 1, 9 (1999).  Instead, the initial competency hearing, as well as the waiver of counsel hearing, create an situation where the error--like "trial" errors generally--may “be quantitatively assessed in the context of other evidence presented in order to determine whether [the procedure] was harmless beyond a reasonable doubt.”  Fulminante, 499 U.S. at 307-08.

Of course, my view depends on the particular facts of this case, whereas classification of constitutional errors must necessarily be done generally.  In all, an interesting circuit split and decision, but one not likely to get further review due to the fact-bound nature of the case and the split.

UPDATE:  additional coverage from Split Circuits

Split Created: What crime is neither a felony nor a misdemeanor?

Per United States v. Cohn, 2009 WL 3110775 (11th Cir. Sept. 30, 2009)

Criminal contempt. In a well-reasoned and short per curiam, the Eleventh declares that criminal contempt, 18 U.S.C. § 401, is a new category of crime, neither felony nor misdemeanor. The new category: sui generis.

Equity certainly favors the Eleventh's position, but the law does not.

Here's the statutory scheme. 18 U.S.C. § 401 criminalizes contempt of court (misbehavior, disobediance, resistance, et c.), but does not provide a maximum punishment or classification for the offense. 18 U.S.C. § 3559(a) states that an unclassified offense with the potential for life imprisonment is a Class A felony. So it would seem like criminal conspiracy is a class A felony, since it lacks a maximum term.

The problem is that contempts can be trivial, whereas Class A felonies are always serious. So the Eleventh hangs its hat on stray Supreme Court language declaring the offense "sui generis," and affirmatively holds (for what I imagine is the first time in recent history) that a crime can be neither a felony nor a misdemeanor.

The CA11 splits from the CA9, the only other circuit to have confronted the classification of contempt in a published opinion. The Ninth Circuit had previously held that contempt was a class A misdemeanor based on the Guideline term for obstruction of justice, the most analogous offense. As to this, the Eleventh reasons the Ninth's "method does not address how to classify criminal contempt if a sufficiently analogous guideline is absent. More importantly, maximum penalties are established by statute, not the Sentencing Guidelines."

Much though I like this result (and the opinion), I have to disagree with the reasoning. Congress gets to create and classify crimes. If the legislature decided to make entering a quarantine area without permission (42 U.S.C. §271(a)) a Class A felony, it could do so and courts would be obligated to comply despite stray Supreme Court language stating that regulatory offenses are generally minor.

Here, contempt clearly falls within 18 U.S.C. § 3559(a)'s definition of Class A felony, and there is no statutory exception. The best way to achieve equity, while not overly stretching the law, would be for courts to rely on the factors in 18 U.S.C. § 3553 to account for trivial contempts, and for Congress to fix the problem, i.e., itself declare contempt sui generis.

Split Widened: Is Simple Battery a Crime of Physical Force?

Per United States v. Hays, 2008 WL 2108079 (10th Cir. May 20, 2008)

Steven Daniel Hays was convicted of simple battery under Wyoming law in 2003. The Wyoming statute criminalized “unlawfully touch[ing] another in a rude, insolent or angry manner or intentionally, knowingly or recklessly caus[ing] bodily injury to another.” He was then indicted for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Under the federal statute, the previous conviction must have “as an element, the use or attempted use of physical force”. 18 U.S.C. § 921(a)(33)(A). The question in this case is whether the first part of the Wyoming statute – touching another in a rude manner – meets this requirement; because the majority holds that it does not, it did not reach the second part of the statutory definition.

The majority opinion, authored by Judge Seymour, finds that it does not. She holds that physical force, as used in the federal statute, means more than mere physical contact. Rather, “some degree of power or violence must be present”. Judge Seymour candidly notes that the circuits have split on this issue, with the CA 7,9 agreeing and the CAs 1,8, 11 all holding that rude or insolent touching does satisfy the federal requirement of physical force.

Judge Ebel cites these cases in his cogent dissent. He notes that the Wyoming statute does not criminalize mere touching, but rather “rude, insolent or angry” touching – precisely those kinds likely to lead to an escalation of violence. He openly encourages the Supreme Court to resolve the split in note four of his dissent. It will be interesting to see if the United States takes him up on the invitation

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.

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.

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.