Splits Noted in the Circuits - 3/10-3/13

• Does Equitable Tolling of a Deadline Reset the Entire Clock? Gao v. Mukasey, 2008 WL 638061, *4 (7th Cir. Mar. 11, 2008).

Even the prolix Judge Posner finds the history of this immigration case too tangled to recount, so you know it has some interesting turns in there. Nonetheless, the basics are as follows – an IJ denied Yuan Gao asylum. Mr. Gao moved to reopen sixteen days after the 90 day deadline. The IJ denied his motion as untimely and the BIA summarily affirmed. Gao asserts that the delay should be excused because he did not know his first counsel had been ineffective, giving rise to a claim for relief, until he met with a new lawyer fifteen days after the clock had started to run.

The writing machine (49 books!) returns to form, starting down the path of evaluating whether IJs have the authority to grant extensions (because tolling “will rarely be available” if extensions are available) before changing gears without deciding that question. Instead, Judge Posner affirms the BIA, noting that seventy-five days should have been enough time to file the motion, and that equitable tolling only extends the deadline as much as necessary. The Multiloquent Magistrate notes that the circuits are split on this issue, however, with CAs 9,11 restarting the entire clock and CAs 6,7,8 not.

• Does a Due Process Right to Be Informed of the Availability of Discretionary Relief Exist? What Degree of Reliance on the Availability of Discretionary Relief Is Necessary to Avoid Giving its Repeal Retroactive Effect? United States v. De Horta Garcia, 2008 WL 656909 (7th Cir. Mar. 13, 2008)

This case notes these two distinct splits. Although Judge Rovner concurs in the result based on prior circuit precedent, he disagrees with the Seventh’s position on both splits and urges reconsideration.

Jose De Horta Garcia was a permanent resident alien arrested in November 1995 (the dates are actually important) during a drug sting. In April 1996, Congress repealed INA § 212(c) which would have permitted De Horta Garcia to appeal for discretionary relief from any removal order resulting from his conviction. Horta pled guilty to his drug crimes in June 1996 and was ordered removed. He then illegally re-entered the U.S. twice, and was arrested twice (he served time once). This case arises out of his challenge to validity the original deportation order. De Horta Garcia asserts that the deportation order was invalid because he was denied his right to seek discretionary relief under the repealed § 212(c).

A collateral attack on a deportation order, as here, is only permitted if the alien satisfies three conditions. One of these conditions is that the entry of the deportation order was fundamentally unfair. De Horta Garcia asserts that the failure of the IJ to inform him of his right to seek discretionary relief under § 212(c) satisfies that condition. The Seventh, along with CAs 4,5,6,8,10,11, holds that such failure does not violate due process; only the CAs 2 and 9 disagree.

Even though the panel finds collateral review of the deportation order procedurally barred, they proceed to discuss whether or not De Horta Garcia could have obtained discretionary relief at the time of his deportation. The repeal of § 212(c) took place after De Horta Garcia’s criminal conduct, but before he pled guilty. Relying on previous precedent, the panel holds that the repeal has retroactive effect absent a showing of actual affirmative reliance by the alien, and thus De Horta Garcia could not have obtained relief. The Second and Ninth Circuit apply the same subjective actual reliance test, whereas the Third, Sixth, and Tenth Circuits only require objectively reasonable reliance. Finally, the Fourth Circuit has rejected any reliance test at all when conducting a retroactivity inquiry. Interestingly, the Supreme Court has denied cert for many of the cases on all sides of this split even though St. Cyr seems to suggest that the repeal ought not to be given retroactive effect.

PSA

What do you do when three different blogs link to you in one day? Well, like the smart bloke I am, I take the next three days off and waste the readership spike. I guess that’s the way the cookie crumbles when you are working on your first *real* brief that will be submitted without others’ review. In all seriousness, however, thank you Feddie, S.cotus and Greg for your kind words and links.

Back to the meat and potatoes; I hope to catch up with all of the developments by midday. Unluckily for me, it seems as if the Circuits were similarly busy this week on creating, widening, or noting splits. The Eighth Circuit even managed to close a circuit split en banc – Tamenut v. Mukasey overruled prior precedent (11-1) to find that the decision whether to reopen removal proceedings sua sponte is committed to the BIA’s discretion by law and therefore unreviewable.

Splits Created or Widened in the Circuits - 3/10

Several interesting decisions were handed down by the circuit courts of appeal on Monday. I was away from a computer for the last day, however, which means that some of the decisions summarized below have been pre-empted by other blogs.

• Do Police Officers Need to Clarify Ambiguous Initial Waivers of Fifth Amendment Rights After United States v. Davis? United States v. Rodriguez, 2008 WL 623982, *11 (9th Cir. Mar. 10, 2008)

The Ninth Circuit creates a circuit split in this case, which has already been extensively covered by Decision of the Day, the California Appellate Report, and the California Blog of Appeal. I won’t rehash all of the angles covered in those posts, rather I argue that the Ninth Circuit is closer to the mainstream on this issue than Decision of the Day or a quick scan of the facts might suggest.

After being Mirandized, Rodriguez responded “I’m good for tonight.” This response could mean either ‘I don’t want to talk at all tonight’ or ‘I’m completely fine to sit and chat for the evening.’ The issue in the case is whether the police need to clarify whether suspects meant to waive their rights by such ambiguous statements. Most of the circuits required clarification prior to United States v. Davis. In Davis, a suspect signed a clear waiver of his rights, and then later ambiguously referenced his right to a lawyer. The Supreme Court said that officers did not need to clarify such ambiguous invocations. Since Davis, both the Seventh and Tenth Circuit have applied the logic of Davis to initial waivers. The Ninth refuses to follow suit, and limits Davis to applying only after a clear initial waiver.

While I think cert is likely (if the government pursues the issue) and the Ninth would be reversed, this decision is not a product of the ‘Ninth Circus.’ As a purely visual matter, the panel had two Republican appointed judges. The decision itself, however, points out its strong support, noting that the majority of State Supreme Courts to have considered the issue similarly limit Davis. They further noted that neither the Seventh nor the Tenth Circuit even discussed the initial/post waiver distinction.

• Must a Court Hold a Faretta Hearing when a Defendant Moves to Proceed Pro Se? United States v. Cano, 2008 WL 623998, *4-*7 (5th Cir. Mar. 10, 2008)

This case involves the rare circumstance where both parties agree that the trial court committed reversible error. Following his trial conviction, Benjamin Cano filed two motions to proceed pro se at sentencing. In the first, he wanted to be treated as co-counsel. The trial court held a hearing on this motion, and Cano accepted representation thereafter. The second motion, filed eighteen days before sentencing, did not involve co-representation but rather self-representation standing alone. The court rejected the second motion without holding a hearing. Both the Government and Cano assert that this constitutes reversible error. In so holding, however, the Fifth Circuit states that failure to hold a Faretta hearing is per se error. This potentially broadens the split previously discussed on this blog between the Third Circuit (yes) and the CAs 4,7,9, and 10 (no)

• Is Poisoning/Drugging a Crime of Violence? United States v. Rodriguez-Enriquez, 2008 WL 624443, *3-*11 (10th Cir. Mar. 10, 2008).

The Tenth Circuit analyzes the above question for eight pages and comes to the conclusion that drugging is not a crime of violence. In the application notes of the USSG § 2L1.2(b)(i)(A)(ii), a crime of violence is defined as one that has an element of physical force. The panel notes that the term ‘physical’ can describe either the consequence of the force or the method of the force. If the former, then drugging/poisoning certainly has physical effects; if the latter, then drugging/poisoning operates through chemical rather than physical pathways.

The panel notes that panels in both the Second and Ninth Circuits have issued opinions that conflict with prior circuit decisions. The latest Second Circuit case says that it is a crime of violence; the latest Ninth says that it is not. The Fifth Circuit en banc ruled that drugging was not a crime of violence, reversing a panel opinion on that point. With the entry of the Tenth Circuit, it looks like the Second Circuit is on the short side of this widening split.

• When, other than judgment on the merits and consent decrees, is a Plaintiff the ‘Prevailing Party’ for Purposes of § 1988 Attorney’s Fees? Dearmore v. City of Garland, 2008 WL 624941, *5-*10(5th Cir. Mar. 10, 2008)

In § 1988, Congress permitted district courts, at their discretion, to award the prevailing party reasonable attorney’s fees in suits brought under certain statutes , creating an exception to the traditional American rule of civil litigation – that each side bears its own costs. The Court has defined the ‘prevailing party’ to mean a material alteration of the legal relationship of the parties with judicial imprimatur. See Buckhannon, 532 U.S. 598, 603-05 (2001). In so doing, it rejected any totally voluntary change in the legal relationship, but did not define what sort of decision fulfilled the necessary judicial imprimatur. In trying to fill this gap, “circuit courts considering this issue have announced fact-specific standards that are anything but uniform.” *7.

This case concerned a plaintiff who obtained a preliminary injunction, after which the defendant changed their behavior and mooted the case. This panel of the Fifth Circuit notes that the Ninth Circuit believes that a preliminary injunction almost always satisfies the prevailing party standard unless the plaintiff subsequently loses on the merits, whereas the Fourth Circuit holds that a preliminary injunction can never satisfy the requirements. The CAs 2,6,7, and 11 hold that a preliminary injunction satisfies the judicial imprimatur standard if the injunction is granted because of the probability of success on the merits, rather than the equities of the case.

The Fifth Circuit itself disavows any general test, preferring to apply the tests of the other circuits – “This Court has not yet created or endorsed a particular test. Instead, this Court has held that a plaintiff who obtains a preliminary injunction is not a prevailing party if he fails to qualify under any of the other circuits' tests.” *8. Applying that standard in the case, the panel notes that the district court’s opinion in granting the injunction did indicate a strong probability of success, and so the plaintiff can be considered a prevailing party. In so holding, the panel widens the split from the Fourth and does appear to create a test: “we hold that the plaintiff (1) must win a preliminary injunction, (2) based upon an unambiguous indication of probable success on the merits of the plaintiff's claims as opposed to a mere balancing of the equities in favor of the plaintiff, (3) that causes the defendant to moot the action, which prevents the plaintiff from obtaining final relief on the merits.” *12.

Spam and the First Amendment

• First Ever Felony Conviction for Spam Upheld Against First Amendment Challenge. Jaynes v. Commonwealth, 2008 WL 539744 (Va. Feb. 29, 2008)

Once recognized as the eighth worst spammer in the world, Jeremy Jaynes was the first man convicted of a felony for spamming. His was arrested under the Virginia Computer Crimes Act for sending over 55,000 spam letters in three days. He appealed his conviction on both First Amendment and Dormant Commerce Clause grounds, among others, and the Virginia Supreme Court narrowly (4-3) affirmed the conviction. As the Virginia law served as a model for both CAN-SPAM and most state anti-spam laws, this would seem to be quite an important and precedential victory.

A closer look, however, suggests that this victory may well be Pyrrhic. First, Jaynes did not challenge Virginia’s law on the ground that it was pre-empted by the CAN-SPAM act, a challenge which the Fourth Circuit’s decision in Omega World Travel v. Mummagraphics, Inc., 469 F.3d 348 (2006), suggests might have been successful. Secondly, the First Amendment challenge to the law was not rejected on the merits, but rather because the court found that Jaynes lacked standing to challenge the law, as a matter of Virginia standing law. See Slip Op. at *21 (“[I]t would appear that Virginia does not accord standing to a person, such as Jaynes, whose actions involve only otherwise unprotected commercial speech, to assert the First Amendment rights of those who engage in noncommercial speech.”). Thus, any victory against spammers would seem limited to this state.

The three dissenting Justices strongly criticized this view of First Amendment standing both as a matter of federal and state law. These are the only Justices to consider the merits of Jaynes’s First Amendment overbreadth claims; they found the statute overbroad and without any reasonable limiting construction to save it. The provisions of the law which forbid the falsification of IP addresses or domain names were also found to be unconstitutional by the dissenters. They reasoned that such falsification is the only possible way to achieve anonymity on the internet, and anonymous speech is a protected right in itself. Cf. Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002).

While this is certainly not my area of expertise, a quick bit of searching suggests that this may be the first case directly discussing the constitutionality (rather than the preemption) of the criminalization of anonymous SPAM, as opposed to private regulation thereof (e.g. White Buffalo). The paucity of such cases, however, could stem from the fact that both the FTC’s regulations concerning CAN-SPAM and several state laws are limited solely to commercial speech, reducing any overbreadth concerns. The Virginia statute was not limited to commercial emails, but would have applied to any type of speech, including core political speech. If anyone knows of other cases, please feel free to mention them in comments.

Splits Noted in the Circuits - 3/4-3/7

• Does Labelling a Prisoner a Snitch, Standing Alone, Violate a Clearly Established Constitutional Right? Irving v. Dormire, 2008 WL 613121, *13-*14 (8th Cir. Mar. 7, 2008)

William Irving, an inmate in Missouri's Jefferson City Correctional Center, filed suit against several prison officials alleging, inter alia, that the officials violated his Eighth Amendment rights by labelling him a snitch. Such actions, Irving asserted, violated the officials' duty to take reasonable measures to guarantee the safety of the inmates. In this case, Irving was not attacked after being labelled a snitch, so his injury, if any, would be the fear he experienced.

This panel of the Eighth Circuit notes that the circuits are split on the issue of whether labelling an inmate a snitch, absent other harm, is a violation of the Eighth Amendment -- CAs 9,10, and 11 hold that it is, whereas CA 7 requires an actual injury rather than fear. Despite this split, the panel affirms the denial of qualified immunity on this point, finding that labelling an inmate a snitch is a violation of a clearly established constitutional right. Perhaps the other alleged actions of these prison officials -- death threats and permitting beatings -- influenced the decision on this point.

• Under the FLSA, Does a Jury Decision on Willfulness Resolve the Question of Good Faith for Purposes of Liquidated Damages? Rodriguez v. Farm Stores Grocery, Inc., 2008 WL 601845, *32-*36 (11th Cir. Mar. 6, 2008)

This whole decision is well worth a read, not least due to its citation of the ‘tipsy coachman’ doctrine, complete with relevant poem. This doctrine urges appellate courts to affirm trial court judgments made on erroneous grounds if any alternative theory could support them. “The pupil of impulse, it forc'd him along, His conduct still right, with his argument wrong; Still aiming at honour, yet fearing to roam, The coachman was tipsy, the chariot drove home.”

More to the point of this post, however, the decision notes a split of authority on the question of whether a jury decision on the issue of whether an employer’s conduct was willful necessarily resolves the question of whether the employer acted in good faith for the purposes of liquidated damages. Interestingly enough, however, the panel then continues on to resolve the split in a way that does justice to both sides and makes eminent sense – no, a jury’s finding is not necessarily preclusive as to the issue of liquidated damages. The way to square the circle is to focus on where the burden of proof is placed. For willfulness, the burden is on the plaintiff/employee; for good faith, it is on the defendant/employer. Thus a finding of willfulness necessarily includes a finding of bad faith, but not vice-versa.

• What Constitutes an ‘Obligation’ to Trigger the Reverse False Claims Act?
  Hoyte v. Am. Nat’l Red Cross, 2008 WL 564649, *21 (D.C. Cir. Mar. 4, 2008)
  

Michelle Hoyte initiated a qui tam action against the American Red Cross alleging that (i) the Red Cross mishandled blood supplies in contravention a consent decree, and thus owed money to the government and that (ii) she was entitled to ‘whistleblower’ protection and had been wrongfully discharged for investigating the mishandling. Such protections only apply when the investigation is in furtherance of a viable qui tam action.

The government intervened in the suit and dismissed charge i. The District Court also dismissed charge ii because it determined that, even assuming that there was a violation of the consent decree, the Red Cross did not have an obligation to pay anything to the government. The terms of the consent decree stated that the FDA may assess a fine, not that it will – the panel finds this to mean that there is no obligation to pay money, thus no viable FCA action, thus no protections.

Judge Tatel, dissenting on this point, notes that the circuits are split on what constitutes an obligation under the FCA: “Moreover, we must keep in mind that nearly all employees who investigate and bring fraud claims are laypeople, not lawyers. Expecting laypeople to know with any degree of certainty whether their employers' actions violate the FCA's often vague provisions is simply unrealistic, especially when courts themselves disagree over what constitutes a viable FCA claim." (citations omitted)

Indian Sovereignty

As noted in the introduction to this blog, I definitely fall into the Thomas camp of jurisprudence. One of my favorite opinions is his concurrence in United States v. Lara, 541 U.S. 193, 215 (2004) (upholding the constitutionality of the Duro-fix), where he characteristically and succinctly stated the fundamental paradox at the root of American Indian law: “the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously.”

The tension lies between their status as separate sovereigns and the doctrine of congressional plenary power over tribes. As an original Constitutional matter, it seems fairly clear to me which of these two views must win out. The Commerce Clause mentions Indians along with states and foreign nations. As Philip Frickey wrote in a fantastic law review article (119 Harv. L. Rev. 431), “[o]ne need not be able to translate noscitur a sociis to recognize that the Constitution places tribes on a sovereign plane.” On the other hand, there is little textual basis at all to find a plenary power over tribes – the only argument that could be made is to rely on Article 4’s provisions for Congress’s power over the territories.

This textual analysis is also supported by considering the historical situation at the time of the founding. Indian tribes were far larger, stronger, and more independent then. The powers which were needed to deal with them were precisely those specifically delegated to the national government – war, peace, treaty-making, and commerce. Thus, Indian law should be a federal preserve (outside Settlement Act and Pub. L. 280 states), but not a plenary federal preserve.

Indeed, for much of America’s history, the Supreme Court has been the most important protector of Indian sovereignty, even as against the political branches. The President disregarded one of first Supreme Court decisions upholding tribal sovereignty – purportedly stating “John Marshall has made his decision, now let him enforce it!” While this story may be apocryphal, it certainly reflects Jackson’s sentiments; the missionaries were not released until pardoned by the Georgia Governor in 1833. Congress has, at times, explicitly attempted to terminate the tribes as political entities -- which acts the Court has narrowly construed.

In recent years, however, these positions have been reversed. Since Nixon’s presidency, both the President and Congress have been active in supporting tribal sovereignty and self-determination. On the other hand, the recognized trend in the Supreme Court has been to cut back on the sovereign rights of the tribes. In large part, this trend is a result of striving for coherence amid the antimony of the two competing tensions discussed above. The solution is to return to the original understanding of the Constitution, reject the plenary power position, and engage in a government-to-government relationship with the tribes.

The flip side of this argument, on the other hand, is to recognize that the plenary power doctrine arose roughly the same time as the Insular Cases doctrine, and to make Indian law cohere with that doctrine. To do so would severely limit Tribal sovereignty and affirm congressional plenary power. A key difference, however, between the land at issue in the Insular Cases and the tribes, is that the former territories are unquestionably under the control of the U.S. and no other sovereign, whereas the tribes are a constitutionally recognized seperate sovereign. Furthermore, this position runs contrary to Congress's stated desire for Indian self-determination.

Splits Noted in the Circuits - 3/3-3/4

I'm on break, so apologies for the typographical errors as I try to catch up on the recent opinions - I'm away from a bluebook and my internet connection does not allow me to check for spelling errors. Further, any comments to let me know this blog is catching on would be most appreciated. Finally, the third case in this list is not a new case, but stems from a denial of rehearing en banc.

• Is False Identification - or Misprision of a Felony - a Crime of Moral Turpitude? Blanco v. Mukasey, 2008 WL 553869, *8, n. 4 (9th Cir. Mar. 3, 2008)

One is not eligible for cancellation of removal if one has committed a crime of moral turpitude, which the Supreme Court has determined includes any crime that involves fraud. In this case, Blanco applied for cancellation of of removal, but was rejected because of, in relevant part, his conviction for false identification to a peace officer. The Ninth Circuit, relying on a prior Pregerson/Reinhardt opinion, holds that, because the California law's definition of false identification does not require the defendant to have materially benefited from that act notwithstanding any impediment to the investigation, the crime does not categorically involve moral turpitude. In so doing, the Ninth deepens a split from the CA 7 and 11.

• Does a Motion for Reduction of Sentence as a Matter of Discretion, Rather than Legality, Toll AEDPA's One Year Limitation Period for Collateral Review? Alexander v. Sec., Dep't of Cor., 2008 WL 553294, *15-*18 (11th Cir. Mar. 3, 2008)

This isn't a pure split; it turns on state law motions to reduce sentences which have slight differences. In pertinent part, however, these motions are based in the same laws -- laws which allow the district court to reduce a sentence imposed not as a matter of legal review, but rather clemency. The Eleventh Circuit holds, in accordance with its own precedent and joining with the CA 3 and 4, that applications for leniency should not toll AEDPA's strict deadlines for the review of the legality of a sentence; only the Tenth Circuit disagrees.

• Is there a Presumption of Prosecutorial Misconduct When the New Charges Involve Distinct Factual Circumstances, United States v. Jenkins, 2008 WL 564980, *7-*11 (9th Cir, Mar. 4, 2008)

As noted in the introduction, this case is not a new panel opinion, but rather comes to this blog from the denial of rehearing en banc. It is also fitting to cover this opinion, as tomorrow's general interest post on Indian Sovereignty is inspired by the author of the panel opinion at issue.

Sharon Ann Jenkins unequivocally admitted to alien smuggling (1) while testifying in her own defense against charges of marijuana smuggling (2); she had also admitted the former crime in previous statements to police. On the first day of the jury's deliberation in a trial for crime (2), the U.S. Attorney sought to indict the defendant for the admitted crime (1). The District Court dismissed the charges as a prophylactic measure to protect Jenkins' Fifth Amendment rights and the panel affirmed. The panel created a rule that if, absent the in court testimony, there was sufficient evidence to charge the second (1) crime at the time of the first (2) trial, a presumption of vindictiveness arises.

Judge O'Scannlain, on behalf of six others, dissents from the denial of rehearing en banc, noting that both the 7th and 11th Circuits have held that when different criminal conduct is charged, there is no presumption of vindictiveness and no burden shifting. Furthermore, the 1st, 8th, and 10th Circuits have held that charges arising out of distinct factual nuclei cannot give rise to any presumption of vindictiveness. Perhaps lightning will strike once again?