The Supreme Court of One

Dahlia Lithwick writes here that now the Supreme Court comes down to the vote of Justice Kennedy.

On the Fourth Circuit vacancies

This article via Law.com says that of the unfilled vacancies on the Fourth Circuit, the Maryland senators want a Marylander to succeed Judge Murnaghan, the North Carolina senators want dibs on Judge Luttig's seat, the Virginia senators are not letting go of Judge Luttig's seat, and nobody knows when there will be votes on Judge Boyle and Mr. Haynes.

Regarding the latter two, the article concludes:

"Boyle was voted out of the Senate Judiciary Committee exactly one year ago and is set to go to the floor of the chamber, but it’s anybody’s guess as to whether Senate Majority Leader Bill Frist (R-Tenn.) will actually bring up the nomination. Earlier this month, Republican Judiciary Committee staffers held eight half-hour briefings a day for nearly a week to help staffers respond to charges that Boyle had violated federal law by issuing orders in at least nine cases involving corporations in which he had stock holdings.

'We found five cases in which there were strict technical violations in which Boyle should have recused himself,' says a Senate GOP staff counsel. 'But they were administrative oversights. He ruled in over 16,000 cases; these five slipped through the cracks.'

Most Democrats, however, aren’t buying that argument. 'A conflict of interest is a conflict,' says a staffer for one Democratic member of the 'Gang of 14,' the group of seven GOP and seven Democratic senators who vowed not to block any judicial nominations unless there were 'extraordinary circumstances.'

Haynes, who was first nominated in September 2003, is even more problematic. 'There’s no way they want him discussed right now,' says a senior Republican aide, referring to both the White House and Republican senators up for re-election. 'They don’t want to talk about Abu Ghraib during election season.' Besides, Haynes’ nomination won’t get to the Senate floor without another hearing in the Judiciary Committee. Asked last week about holding another hearing on Haynes, committee Chairman Arlen Specter (R-Pa.) was carefully ambiguous. 'I’m considering it. I’m considering it,' he said."

The Washington Times has this commentary from Senator Dole on the handling of the Boyle nomination, titled "Borking Judge Boyle." She says in part: "If you want evidence proving that the judicial confirmation process is in serious need of repair, Exhibit A would be Judge Terrence Boyle of North Carolina. Nearly 15 years ago, Judge Boyle was nominated for a seat on the Fourth Circuit Court of Appeals by the first President Bush. President George W. Bush has since renominated Judge Boyle three times for the same seat — once in 2001, a second time in 2003 and a third time in 2005. Judge Boyle was finally approved by the Senate Judiciary Committee a year ago, yet he continues to patiently await action by the full Senate."

The Law.com article noted that the original candidate for the Maryland seat was Peter Kiesler. President Bush has now nominated Kiesler to a seat on the D.C. Circuit.

All of these links came from Howard Bashman.

On citing Wikipedia

This post discusses federal court opinions that have cited Wikipedia.

I cite Wikipedia mostly because I am too lazy to find better links.

I have been plotting to write some Wikipedia articles but never quite pulled it off.

E-filed complaint with no filing fee was untimely

In Cornett v. Weisenburger, Magistrate Judge Sargent ruled that the attempt by plaintiff's counsel to file a complaint on the last day of the limitations period was ineffective because counsel did not have a credit card account in place for the filing fee and because the complaint was faxed to the clerk's office and not signed.

I'm not entirely sure whether this opinion is entirely consistent with the opinion by Judge Conrad in Vance v. Potter, still another e-filing snafu case. In that case, the Court allowed the timeliness of the plaintiff's filing, on these facts:

"The plaintiff sent a complaint as to Agency Case #4K-230-0094-04 to the clerk’s office in Harrisonburg via the Case Management/Electronic Case Files (CM/ECF) system on February 11, 2005. His attorney had previously registered for both the CM/ECF and PACER systems and believed that he had sent his credit card information for input into both systems. In fact, the credit card information was sent only to PACER and was not entered into CM/ECF. Even though the credit card was not on file with CM/ECF, and therefore the filing fee could not be charged, the CM/ECF system sent an automated message to the attorney on February 11, 2005. This message was styled “Notice of Electronic Filing.” Upon receipt of this message, the attorney left town to attend to personal matters, returning later to learn that his credit card could not be charged and, therefore, the filing fee was not remitted and his case was not actually filed. On February 18, 2005, the filing fee was paid and case 5:05CV00013 was docketed."

I point this out even though Sheriff Jack is a good man and they shouldn't be suing him in the first place.

Fair and unbalanced

The tentative agenda for the blog meeting in Martinsville includes addresses from Attorney General McDonnell, local government attorney Eric Monday, FOIA maestro Frosty Landon, and myself.

I don't know whether I was suggested to address the topic of "network neutrality" because or in spite of everything bad I ever said or wrote about the cable and telephone companies as an advocate for municipal telecommunications networks - in matters including a lawsuit against one of Mr. McDonnell's predecessors.

The book on political corruption in West Virginia

The West Virginia Record has this post on a new book about the last 145 years of political corruption in West Virginia, titled "Don't Buy Another Vote, I Won't Pay for a Landslide."

More on the Haynes nomination

One of those Southern Appeal gents has this post about a column he wrote calling for the confirmation of Fourth Circuit nominee Jim Haynes.

He writes:

"With the recent retirement of Judge Michael Luttig from the Fourth Circuit, the conservatives on the court have only six votes out of 12. The Fourth Circuit currently has several open seats, and unless the Senate votes on qualified nominees such as Jim Haynes prior to the mid-term elections we could see a Fourth Circuit much less in agreement with the average South Carolinian."

I read another article on this topic today, but it was too wacky for a link, something about a conspiracy of old military lawyers.

On pointless, incessant barking

In this interesting ABA article, Tom Mighell reviews the past, present, and future of lawyer blogging.

Of the past, he makes this reference: "In fact, the New Yorker recently featured a cartoon with two dogs, one saying to the other, 'I had my own blog for a while, but I decided to go back to just pointless, incessant barking.'"

Six hours in the Fairfax County Circuit Court

The Connection paper has this interesting article on what it was like to watch a full day of criminal motion hearings before Judge Klein on June 16.

Here is a segment of the article:

Defense attorney Michael S. Davis used himself as an example in order to defend his client Robert William Arnold, who violated his probation on a DUI charge by committing another DUI offense.
"I’m going to make a fool of myself," Davis warned Judge Klein.
"I hope not, Mr. Davis," said Judge Klein.
Davis told Klein that he holds five degrees, including three undergraduate degrees — one in nursing — and two advanced degrees including his law degree.
Davis also holds another distinction in his family for being the only man who has lived past the age of 50. But he recently started smoking again after three and a half years of abstaining, he said.
"Obviously, I know better. I know every time I stick one of these things in my mouth, it’s like putting a stick of dynamite in my mouth."
But even though he knows better, that hasn’t stopped him. "That’s an addiction," he said. "That’s what my client has, an addiction."
Arnold knew he would be sentenced to spend additional time in jail, Davis said, but he asked Judge Klein to look at this from the perspective of someone with an addition. "He needs treatment," Davis said.
Arnold said he is on a waiting list to enter a 90-day treatment program.
But Klein reminded Arnold that he didn’t show up for the Alcohol Safety Action Program that was imposed after he was convicted.
Klein reimposed the 160 days he suspended after Arnold was convicted of DUI, Second Offense within 10 years on May 17, 2006.
"Mr. Arnold, there is a difference between your situation and Mr. Davis’s situation in that the only person who is going to be killed because of Mr. Davis’s addiction is Mr. Davis," Judge Klein said.

Summary judgment in a USERRA case

In the case of Francis v. Booz, Allen & Hamilton, Inc., the Fourth Circuit in an opinion by Judge Duncan, joined by Chief Judge Wilkins and Judge Niemeyer, affirmed summary judgment for the employer on the plaintiff's three different kinds of claims under the Uniformed Services Employment and Reemployment Rights Act.

USERRA is one of the newest of the Civil Rights statutes and best written from the perspective of the employees - with many of the ambiguities that were thrashed out in the courts under the other statutes dealt with expressly within the language of the Code, in ways that the older statutes still lack.

You can't defeat a motion for summary judgment with pinprick objections

In a case decided Friday by the Fourth Circuit, called Hux v. City of Newport News, Judge Wilkinson wrote that the plaintiff's "suggestion that summary judgment is precluded by pinprick objections to an employer’s non-discriminatory justification would place routine personnel decisions in judicial hands," and therefore summary judgment against the plaintiff was affirmed.

The record

It says here: "The record for single-day executions is believed to be the eight men convicted of rape who were electrocuted on Feb. 2, 1951, in Martinsville City, Va."

Is Atkins getting smarter?

This Findlaw article accuses Virginia of evading the Supreme Court's ruling in the Atkins case, as it continues to work towards the execution of Atkins himself. The author asks: "Is Atkins gradually getting smarter? Of course not." The article goes on to conclude that "when prosecutors, and their experts, argue that a death row inmate's reduced cognitive capabilities developed not in early childhood, but much later --- perhaps even in prison - the inmate may not have proof to rebut that contention, even if false."

On Kelo plus one

If I was trying to get a grip on the Kelo case and its aftermath, I'd buy this new book by Timothy Sandefur.

He had a great blog, while it lasted - one of my old favorites.

On the topic of civil rights and retaliation

Another sometime lecturer on civil rights litigation, a California lawyer named Stephen Yagman, has been indicted for tax evasion and money laundering, according to this Bashman post.

One of the cited articles had this selective summary of Mr. Yagman's career:

"1976 -- Admitted to the State Bar

1982 -- Represents a homeless man who is awarded $100,000 in a settlement with the city of Hemet. The man had accused police of driving him out of town in handcuffs and beating him.

1988 -- Represents a pregnant woman who sues Riverside police after she is punched in the stomach during an arrest. She is awarded nearly $200,000.

1989 -- Six-month disciplinary suspension for seeking an unconscionable fee in a 1980 case.

1994 -- Receives a $290,000 settlement from Riverside County stemming from injuries a family suffered from deputies and a flash-bang grenade in a 1989 drug raid on the wrong house in Pedley.

1995 -- A federal jury finds Riverside police used excessive force in shooting a fleeing felon who had shot two other people. The client is awarded $184,000, but judge set it aside.

1995 -- A federal appeals rules that Yagman cannot be disciplined for out-of-court speech critical of a judge.

1997 -- Chosen for a team of special prosecutors to investigate the FBI's deadly standoff with a white supremacist at Ruby Ridge, Idaho.

1998 -- Six-month suspension for ethical violations including overcharging clients. He improperly collected both court-awarded attorney fees and a 45 percent contingency fee, for a take of more than $400,000, leaving his clients in a police-misconduct case to each collect $810.

2001 -- Yagman ends his service as special prosecutor of an FBI sharpshooter in the Ruby Ridge case when an Idaho prosecutor decides to drop charges.

2002 -- Files the first lawsuit on behalf of the Guantanamo Bay prison detainees.

2006 -- Indicted on charges of federal income-tax evasion."

On the state of the death penalty

Via Howard Bashman, the Potomac News had this interesting essay, with quotes from some Virginia lawyers, on the thirty years since the Supreme Court allowed the resumption of the death penalty in America. The piece notes among other things that there are four convicted murderers from Prince William County now on death row.

Why can't Kentucky government employees read this blog?

After all, there's been nothing here lately but a bunch of vacation pictures.

Concurring Opinions has this post and Copyfight has this post (with these links from Daily Kos and Boing Boing) on the efforts by the government of one of those other Commonwealths to block state employees from looking at blogs from their workplace desktops.

The Kentucky Law Blog reports here that a lawsuit may be filed.

Once in a while my Sitemeter suggests that there are, in fact, employees of the Commonwealth of Virginia who pull up this blog - and use it to go read the Instapundit.

Exhibit A on net neutrality

Lessig writes here: "One clue to this Net Neutrality debate is to watch what kind of souls are on each side of the debate. The pro-NN contingent is filled with the people who actually built the Net — from Vint Cerf to Google to eBay — and those who profit from the competition enabled by the Net — e.g., Microsoft. The anti-NN contingent is filled with the entities that either never got the Net, or fought like hell to control it — telecom, and cable companies."

On the Supreme Court's summer vacation

Wasn't it true that in the old days the Supreme Court had all of its opinions out in time for the Chief Justice Rehnquist to attend the Fourth Circuit Judicial Conference, where Professor Howard and friends would talk about them? And, isn't the judicial conference, now held every other year, some time in June?

Perhaps the Fourth Circuit should go back to having its conference every year, so the Supreme Court would be done with its work for this term by now.

They'll lose their union cards for this

I haven't quite figured out what to make of the Supreme Court's decision in Hudson v. Michigan, the no-knock case, but one thing that made me laugh out loud was that Justice Scalia's opinion cites the work of Professors Avery, Blum, and Rudovsky, on the point of how easier it is to find a lawyer to sue a police officer.

I've enjoyed listening to Professors Avery, Blum, and Rudovsky a couple of times in the past, at section 1983 litigation seminars, but somehow I doubt that they are routinely in agreement with the views of Justice Scalia on section 1983 litigation.

Don't blame me, I'm just trying to keep up with Matt Conigliaro

The Florida appellate guru at Abstract Appeal has his own set of pictures from Italy and elsewhere.

On public employee free speech

Not so long ago, I wrote about the Fourth Circuit's decision in the Marshall University football case, where the plaintiff was a fellow called Ridpath. The Ridpath case intrigued me in part because of its reference to "the McVey rule," citing the first appeals court opinion from the case we litigated some years ago.

At the end of May, the Supreme Court's ruling in Garcetti v. Ceballos puts the boot to the McVey rule, by my reckoning. All the public employee speech cases I've litigated would have been affected by the rule from the Garcetti case, including McVey. In Garcetti, the Court held that when public employees make statements pursuant to their official duties,they are not speaking as citizens for First Amendment purposes,and the Constitution does not insulate their communications from employer discipline.

It is ironic that the employer in this case is that fellow Garcetti, whose office botched the O.J. Simpson case, about which so many public employees have said and written so much.

Retaliation prohibited under Title VII not limited to adverse employment actions

The Supreme Court famously ruled in Burlington Northern & Santa Fe Ry. Co v. White that the retaliation prohibited by Title VII is not limited to "adverse employment actions."

SCOTUSblog has this summary of the decision.

I've been studying on drafting a complaint in a hostile environment/retaliation case. I suspect that the Burlington Northern decision might help get that one past summary judgment. From time to time in the past, we've litigated, even on motions to dismiss, whether there was an "adverse employment action" from the defense side in cases where the plaintiff is still employed by the defendant and has not lost any money. The value of those old briefs went down a bit on June 22.

How does the health insurer for federal employees get its money back

A while back, we had a case where a fellow who worked at the federal prison in Lee County was injured in an accident, and we filed an uninsured motorist claim in state court in Tennessee. One issue we had to unravel was the extent to which the fellow's health insurer had the right to get back what it had paid out for his injuries.

From what little I had gained on this issue, I would have bet money that the Supreme Court's decision in Empire Healthchoice Assurance, Inc. v. McVeigh would have come out the other way. In the Empire case, the Court in a 5-4 decision concluded that the Blue Cross outfit charged with administering some of the federal employee health benefits could not sue in federal court to recover from the proceeds of a wrongful death case what it paid out in medical benefits for the decedent. But for federal law, the carrier would not even have such a claim, in some states. See, e.g., Va. Code § 38.2-3405. I suppose that in such a case in Virginia, as in the Kircher case noted below, the Supreme Court is counting on the state court judges to apply federal law.

On appealing remand orders

We removed a case the other day. Sometimes it seems like we remove a case every month. A few times over the years the other side has fought back, seeking a remand to state court. Once, years ago, we appealed a remand order to the Fourth Circuit, and it was reversed, notwithstanding the prohibition against appeals of remand orders expressed in 28 U.S.C. § 1447. That case involved the issue of whether the plaintiff's state law tort claim against a federal employee fell under the Federal Tort Claims Act. In arguing for appellate jurisdiction over the District Court's order, we relied on the Supreme Court's decisions in the Thermtron and Waco cases.

Recently, those cases were lightly addressed by the Supreme Court in Kircher v. Putnam Funds Trust, a securities law case, decided June 15. Justice Souter, in his opinion for the Court, dismissed the Waco arguments in a footnote. The idea behind Waco was that when the trial court ruled on another issue necessarily in conjunction with the remand, but the remand would have the effect of preventing review of the ruling on the other issue, the appeals court could take an appeal. I thought that was more or less what happened in the Kircher case, but I guess it wasn't.