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Appellate Law

Appellate Law and Practice

Daily summaries of appellate cases from federal circuit courts of appeal. On the weekends, the blog provides appellate practice tips and book reviews.

Post Frequency: 1.8/day

Last Entry: December 10, 2008 at 16:15:09

CA1: First bends to approve ?Don?t Ask; Don?t tell? on First Amendment Grounds

Posted on June 09, 2008
Cook v. Gates, Nos. 06-2313, 06-2381. The First seems to have gone though both facial and as-applied challenges, and ultimately deferred to the government. There was a dissent. So, maybe this will go en banc. Unlike the Ninth Circuit?s Opinion,...

A PR political discrimination suit to come later

Posted on June 05, 2008
Negron-Almeda, et al v. PR Trade and Export. Nos. 07-2013, 07-2140. This was a Puerto Rican political discrimination suit. The plaintiff won. The District Court granted reinstatement and backpay and didn?t let the agency intervene (as of right) because it...

CA1: ADA case less interesting than thought

Posted on June 05, 2008
R.-Z. v. Commonwealth of PR, No. 07-2025. While this claim was filed under the ADA, the Rehabilitation Act, and 1983, it comes down to a suit against the state employed a teacher that sexually abused a child with cerebral palsy....

CA1: ethics and medical devices and conflicts of prejudment interest

Posted on June 05, 2008
Jasty v. Wright Medical, Nos. 07-1743, 07-1744. The plaintiff was a doctor and a ?consultant? to a medical device manufacturer. He makes more than most lay people that prattle on about tort reform makes. It seems that he was sort...

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CA1: strange case on double-counting of non-remorse

Posted on June 04, 2008
US v. Cruzado-Laureano, No. 06-1815. This is the defendant?s third appeal. The First two were successful. See United States v. Cruzado-Laureano, 440 F.3d 44, 45 (1st Cir. 2006) (our coverage here); and United States v. Cruzado-Laureano, 404 F.3d 470, 473-79...

CA1: Selya surprises and says that fast-track progarms can be considered Post-Gall

Posted on June 04, 2008
US v. Rodriguez , No. 06-2656. This case is by Selya. The appeal involves whether post-Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) the First?s holding that sentencing disparities...

CA1: One of the worst cases ever on the petition clause

Posted on June 04, 2008
Rosado-Quinones v. Toledo, No. 07-1425. A cop brought a 1983 suit alleging that he was discriminated against on First Amendment grounds after suing the police in a local court. I guess the underlying lawsuit is interesting: this cop was arrested...

CA1: another age discrimination claim fails

Posted on June 04, 2008
Arroyo-Audifred v. Verizon Wireless, No. 07-1661 affirms a grant of summary judgment in an age discrimination case. Some claims are resolved on statute of limitations grounds, and some are resolved because the plaintiff messed up the summary judgment procedure...

Nothing from the First on National Insult Day

Posted on June 04, 2008
Just a post to let you know that nothing happened in the First Circuit over the past few days. Therefore, this proves beyond a doubt that "temp" lawyers and "contract" lawyers are better workers than anyone nominated by the president...

Selya on Blogging

Posted on May 27, 2008
The Boston Globe reports that US District Court Judge Nancy Gertner has been a contributor to Slate. Judge Selya, who is known for his constant use of big words in cases that send poor people to jail says this: I...

CA1: affirmance for failure to follow local rules on summary judgment

Posted on May 27, 2008
Sanchez-Figueroa v. Banco Popular, No. 07-1013. This appeal of an ADA case seems to really be affirming summary judgment for failure to comply with Puerto Rico?s Local Rule 10(b) (translation of exhibits from Spanish to English); and having a counter-statement...

What does it look like when I blog

Posted on May 26, 2008
Some people have what it looks like when I blog.* Just for fun, here is a screenshot. As you can see, I use only the hippest open-source systems and software. However, since I am a lawyer I will deny all...

CA1: First tees up retroactivity issue

Posted on May 23, 2008
US v. Joseph, No. 04-1477 (unpublished). This is a fairly interesting ?crack guidelines? issue. The defendant was sentenced before Booker. While the First rejects his Booker issue and affirms the sentence, the First remands so that he can move for...

CA1: almost no relief on ?role-in-the-offense? determinations

Posted on May 23, 2008
US v. Rodriguez-Guerrero, No. 07-1256 (unpublished). The First makes it clear that ?Role-in-the-offense determinations typically are factbound and, therefore, we will reverse the denial of minimal participant status only for clear error.... ? therefore ?Our standard of review is not...

CA1: No under Fed. R. Crim. P. 35 relief for providing assistance

Posted on May 23, 2008
US v. Ellis, No. 07-1997. A guy serving a 25-year sentence who claims to have provided assistance to a ?warden of the federal prison where he was once incarcerated? moved under Fed. R. Crim. P. 35 to shorten his sentence....

CA1: A reported judgment in a kosher habeas case where claim is mooted

Posted on May 23, 2008
Guzzi v. Thompson, No. 07-1537. This judgment was dated on the 14th, but wasn't made public, it seems. Since the parties agree that the decision should be dismissed as moot because the state stopped doing what it was doing (not...

Not that big a deal

Posted on May 23, 2008
For some reason, the Boston Business Journal thinks that it is notable that Judge Sandra Lynch is going to become the first lady chief judge of the First Circuit. Now, come on, of all the milestones of feminism, is this...

CA1: remand to the IJ because he didn?t explain

Posted on May 22, 2008
Sok v. Mukasey, No. 07-2113 remands back to the IJ on a withholding of removal claims because ?the BIA and IJ gave a legally insufficient explanation of why Sok failed to prove that she suffered past persecution in Cambodia, we...

CA1: no double-counting in identity-theft sentencing

Posted on May 22, 2008
US v. Sharapka, No. 06-2715. This is an appeal sentence for 121 month sentence for identity theft. The First says that the enhancement for ?more than 10 but fewer than 50 ?victims?? was okay, despite the fact that the defendant...

CA1: suing non-parties to arbitration agreement, doesn?t get around mandatory arbitration

Posted on May 22, 2008
Sourcing Unlimited v. Asimco International, No. 07-2754 holds that a corporate signatory to a written partnership agreement that requires international arbitration of their commercial disputes may not escape arbitration of such disputes by naming as defendants two non-signatories, on the...

CA1: Columbian petition denied

Posted on May 21, 2008
Restrepo Ruiz v. Mukasey, No. 07-1783. This is an asylum and political persecution case. The petitioner is a Columbian who was anti-FARC and a member of Columbia?s conservative party. FARC seems to have done some bad things. However, Selya says...

CA1: Qualified immunity for political discrimination

Posted on May 21, 2008
Lopez-Quinones v. Puerto Rico National Guard, No. 07-1976. Going off my handwritten notes here, this is a qualified immunity in political discrimination case (and the dissent by Torruella, points out that the First Circuit leads the nation in political discrimination...

CA1: Photographic exploitation of a minor with a twist: the federalization of sex.

Posted on May 20, 2008
US v. Ortiz-Graulau, No. 06-1768. The First Affirms a conviction under 18 U.S.C. � 2251(a) (?exploiting a minor for the purpose of producing the photographs.?) There was a guilty plea to a 18 U.S.C. � 2252(a)(4)(B) (2000) (?exploiting a minor...

Start your Monday with the remix of O'Reilly

Posted on May 19, 2008
Hey? rarefied appellate practitioners?. Start your Monday with the Bill O?Reilly Flipping Out dance remix.

CA1: arbitration award affirmed

Posted on May 15, 2008
UMass Memorial v. United Food and Commercial Workers Union, Nos. 07-2527; 07-2528. The hospital lost an arbitration (against the union). The hospital went to the District Court, seeking to vacate the award. This seems to be a dispute about whether...

CA1: PURPA case barred by SOL (and Steel Co issue)

Posted on May 15, 2008
Greenwood v. NH Public Utilities, No. 07-2322. This case begins with ?This case was brought by the owner of a small renewable hydroelectricity producing company.? So, he loses. Before getting to the energy nerdery, the First has to explain how...

CA1: plea was valid and entrapment fails

Posted on May 15, 2008
US v. Otero, No. 07-1555 holds that in a ?Rule 11" (i.e. a change of plea) proceeding, a defendant was ?aware of the intent element of the drug-trafficking offense? even though the judge didn?t read it out loud. He raises...

CA1: SEC wins something

Posted on May 15, 2008
Duggan v. SEC, No. 07-2494 (unpublished). I think this is a FOIA request. The opinion reads, in relevant part ?The Securities and Exchange Commission made an adequate showing at summary judgment that it had conducted a search that was reasonably...

Let the blabber start on the Marriage cases

Posted on May 15, 2008
This blog is for ethical lawyers only. As an ethical lawyer, you will have already read In re Marriage Cases (if you did not, you are not ethical). If you have not read that case, then you are not an...

Blackmail and extortion

Posted on May 14, 2008
C&F questions why either of these things can or should be crimes. I agree. Why can?t people offer to not exercise a First Amendment right for cash? Hell, most of us agree to waive constitutional rights in exchange for compensation...

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