Federal Judiciary

A Not-So-Instant Replay in Baseball Doping Scandal

By Robert Loblaw

U.S. v. Comprehensive Drug Testing, Inc., 05-10067 (9^th Cir., Jan. 24, 2008)

The government?s investigation into the Balco doping scandal just took a bad bounce. This appeal involves evidence that the government seized when it raided two labs that run drug tests for Major League Baseball. Two district court judges had concluded that the government?s seizures violated the Fourth Amendment and ordered the government to give most of the evidence back. Meanwhile, a third judge had quashed subpoenas in which the government sought even more evidence from these labs.

More than a year ago, a divided Ninth Circuit panel largely reversed these three orders. In a decision I glibly referred to as a “triple play,” the majority held that the government was entitled to keep most of the evidence and that its subpoenas were valid.

But unlike baseball, where the umpires? calls are final, the panel decided to take another look at its ruling. On rehearing, the panel concludes that the government?s appeal from one of the orders was untimely. In a bumbling move that rivals Bill Buckner’s infamous 1986 Game 6 error, the government filed its notice of appeal within 60 days of the district court’s denial of its motion for reconsideration, and not within 60 days of the initial ruling, as required by the Federal Rules of Appellate Practice. Although there are exceptions to this rule, they do not apply here. Oops. 

Accordingly, the Court lacked jurisdiction to reverse the district court?s decision ordering the government to return evidence from one of the labs. The other two aspects of the panel?s decision stand, and Judge Thomas still dissents from those portions of the opinion.

So instead of a triple play, we?ll have to call this one a ground rule double. But the government is still in the lead, at least for now.

Full post as published by Decision of the Day on January 24, 2008 (boomark / email).