Certworthy

Summer 2006

TM The newsletter of the DRI Appellate Advocacy Committee In This Issue…

A Primer on Motions for Summary Affirmance in the Federal Courts A Primer on Motions for of Appeals ...... 1 Appellate Advocacy Leadership Committee ...... 2 Summary Affirmance in the Regional Editor Listing ...... 4 From the Chair: Federal Courts of Appeals The Hit Programs Keep Coming ...... 5 Ralph W. Johnson, III late system and the judges who staff From The Editor: Halloran & Sage LLP it. The statistics in the 2005 Report Authors, Authors ...... 6 Hartford, CT from the Director of the Administra- The Ten Commandments Cases and [email protected] tive Office confirm that there is no the Establishment Clause: Is “Location, Location, Location” end in sight to the “crisis of volume” the New Three-Part Test?.... 11 For a variety of reasons, the image of that the federal courts of appeals have Circuit Reports ...... 17 appellate attorneys as practicing law been battling since the 1990s. The First Circuit ...... 17 from “Ivory Towers” is a quickly van- caseload faced by these courts is, in a Sec ond Circuit ...... 18 ishing one. Given the high cost of word, “overwhelming.” For example, Third Circuit ...... 19 litigation, appellate attorneys, like Fourth Circuit ...... 20 Table B to the Director’s report indi- Fifth Circuit...... 21 other litigators, must be sensitive to cates that there was a 9.1 percent in- Sixth Circuit ...... 23 the financial burden that litigation crease in number of appeals filed in Eighth Circuit...... 24 imposes on their clients and must Fiscal Year 2005 (68,473) in the re- Ninth Circuit ...... 25 look for opportunities to minimize gional courts of appeals over the num- Eleventh Circuit ...... 26 that burden. The need for sensitivity ber filed in Fiscal Year 2004 D.C. Circuit ...... 27 Writer’s Corner: and creativity is particularly impor- (62,762). This increase marks the The Anatomy of an Effective tant where there appears to be mini- tenth consecutive, record-breaking Reply Brief...... 29 mal or no merit to an adversary’s year for the number of appeals filed. Advocate’s Forum: appeal. Of the 68,473 appeals filed in 2005, The Dynamics of Appellate Oral While being sensitive to the finan- 28,559 were pro se. Argument ...... 31 Browsing the Bookshelf: cial burden imposed on their clients, As a result of the ever-growing Sandra Day O’Connor: How the appellate attorneys must simulta- caseload, federal circuit judges and First Woman on the Supreme neously navigate their cases through the staffs on their courts are receptive Court Became its Most Influential the courts of appeals towards a hope- to procedures that will help them re- Member, by Joan M. fully successful result. To meet this solve appeals within a reasonable Biskupic ...... 33 Subcommittee Report: challenge, they must be aware of the time. They are also receptive to pro- Amicus, Publications ...... 35 pressures faced by the federal appel- cedures that reduce the quantity of

©2006 DRI. All rights reserved continued on page 7 APPELLATE ADVOCACY COMMITTEE LEADERSHIP

Chair Publications Chair Legislative/Rulemaking Liaison R. Daniel Lindahl Raymond P. Ward Bullivant Houser Bailey, P.C. Adams and Reese LLP TBA 300 Pioneer Tower 701 Poydras Street, 45th 888 S.W. Fifth Ave. Floor Web Page Chair Portland, OR 97204 New Orleans, LA 70139 TBA (503) 499-4614 (504) 585-0339 (503) 295-0915 – fax (504) 566-0210 – fax Teleconference Chair [email protected] [email protected] Matthew S. Lerner Publications Vice Chair Goldberg Segalla Vice Chair Diane R. Crowley 8 Southwoods Blvd Ste 300 Scott P. Stolley Law Offices of Diane R. Albany, NY 12211-2526 Thompson & Knight L.L.P. Crowley (518) 463-5400 1700 Pacific Ave Ste 3300 727 Contra Costa Ave. (518) 463-5420 – fax Dallas, TX 75201 Berkeley, CA 94707 [email protected] 214-969-1678 (510) 524-1531 214-969-1751 – fax [email protected] E-Discovery Liaison [email protected] TBA Program Chair Membership Chair Diane B. Bratvold Corporate Involvement Douglas J. Collodel Rider Bennett L.L.P. Mary Massaron Ross Sedgwick Detert Moran & 33 S 6th St, Suite 4900 Plunkett & Cooney Arnold Minneapolis, MN 55402 Buhl Building 801 S. Figueroa Street, (612) 340-7966 535 Griswold St. Suite 2400 18th Floor (612) 337-7566 – fax Detroit, MI 48226 Los Angeles, CA 90017- [email protected] (313) 983-4801 5556 (313) 983-4350 – fax (213) 426-6900 Diversity Liaison [email protected] (213) 426-6921 – fax Christina Alonso [email protected] Carlton Fields, P.A. Robert W. Powell 100 S.E. Second St Ste. 4000 Ford Motor Co. Membership Vice Chair Miami, Fl. 33131 3 Parklane Boulevard Jeffrey A. Cohen (305) 539-7339 300 Parklane Towers West Carlton Fields (305) 530-0055 – fax Dearborn, MI 48126-2568 4000 International Place [email protected] (313) 621-6402 100 S.E. Second Street (313) 248-7727 – fax Miami, FL 33131-9101 DRI Board Liaison [email protected] (305) 539-7289 Robert B. Delano, Jr. (305) 530-0055 fax Law Institute Liaison Sands Anderson Marks [email protected] 801 E. Main St., Ste 1800 Nell E. Mathews Rider Bennett LLP Marketing Chair Richmond, VA 23218 804-783-7268 33 S 6th St Ste 4900 TBA 804-783-2926 – fax Minneapolis, MN 55402 [email protected] (612) 340-8970 Amicus Chair (612) 340-7900 – fax Nancy Ciampa [email protected] Carlton Fields, P.A. 4000 International Place 100 S.E. Second Street P.O. Box 019101 Miami, Florida 33131-9101 (305) 539-7280 (305) 530-0055 – fax [email protected] 2 Certworthy Summer 2006 Public Relations Contacts Steering Committee Diane B. Bratvold David M. Axelrad Nancy C. Ciampa East Horvitz & Levy Linda T. Coberly Mary Massaron Ross 15760 Ventura Blvd 18th Fl Jeffrey A. Cohen Plunkett & Cooney Encino, CA 91436-3000 Douglas J. Collodel Buhl Building (818) 995-0800 Diane R. Crowley 535 Griswold St. (818) 995-3157 – fax Michael B. King Suite 2400 [email protected] Matthew Lerner Detroit, MI 48226 R. Daniel Lindahl (313) 983-4801 Susan Ford Robertson Mary Massaron Ross (313) 983-4350 – fax Ford Parshall and Baker Scott B. Smith [email protected] PO Box 1097 Scott P. Stolley Columbia, MO 65205 Michael B. Wallace Central (573) 449-2613 Raymond P. Ward TBA (573) 875-8154 – fax [email protected] Newsletter Editors Raymond P. Ward West Roger W. Hughes Diane R. Crowley R. Daniel Lindahl Adams & Graham LLP 222 E. Van Buren, West Tower Annual Meeting Chair Michael B. King Harlingen, TX 78550 Lane Powell Spears Lubersky, Linda T. Coberly 956-428-7495 L.L.P. Winston & Strawn 956-428-2954 – fax 1420 Fifth Ave., Suite 4100 35 W Wacker Dr 40th Fl [email protected] Seattle, WA 98101-2338 Chicago, IL 60601 (206) 223-7046 (312) 558-8768 Charles W. Craven (206) 223-7107 – fax (312) 558-5700 – fax Marshall Dennehey Warner [email protected] [email protected] 1845 Walnut St Philadelphia, PA 19103 Expert Witness Chair Young Lawyer Liaison (610) 355-7424 TBA (610) 355-7444 Mike Reitzell [email protected] Hancock, Rothert & Bunshoft, Legislative/Rulemaking Liaison LLP Michael B. Wallace TBA Four Embarcadero Center, Suite Phelps Dunbar 300 111 E Capitol St, Suite 600 State Liaison Chair San Francisco, CA 94111 Jackson, MS 39201-3066 TBA (415) 981-5550 (601) 352-2300 [email protected] (601) 360-9777-fax [email protected] Elaine LaFlamme Mager Law Group 401 East Las Olas Blvd., 14th Fl. Fort Lauderdale, FL 33301 (954) 763-2800 (954) 763-2885 – fax [email protected]

CORRECTION

RECOGNIZED FOR EXCELLENCE IN 2005 BY THE AMERICAN LAWYER AND THE NATIONAL LAW JOURNAL, REED SMITH’S PRODUCTS LIABILITY GROUP’S EXPERTISE INCLUDES PHARMACEUTICAL,

Summer 2006 Certworthy 3 REGIONAL EDITOR LISTING

First Circuit Sixth Circuit Eleventh Circuit Sarah M. Riley Scott Burnett Smith Richard L. Neumeier Warner, Norcross & Judd LLP Bradley Arant Rose & White LLP Morrison Mahoney, LLP 900 Fifth Third Center 200 Clinton Avenue West, Suite 250 Summer Street 111 Lyon Street NW 900 Boston, Mass. 02210-1181 Grand Rapids, MI 49503-2487 Huntsville, AL 35801-4900 (617) 439-7569 (616) 752-2541 (256) 517-5198 [email protected] [email protected] [email protected]

Second Circuit Timothy Fitzgerald DC and Federal Circuits Ralph W. Johnson, III Gallagher Sharp Fulton & Rebecca A. Womeldorf Halloran & Sage LLP Norman Spriggs Hollingsworth One Goodwin Square Seventh Floor, Bulkley Building 1350 I St. NW 225 Asylum Street Cleveland, OH 44115 Washington, DC 20005 Hartford, CT 06103-4303 (216) 522-1164 (202) 898-5800 (860) 297-4646 [email protected] [email protected] Johnsonr@Halloran- Sage.com Seventh Circuit Jeffrey K. McGinness Third Circuit Wildman, Harrold, Allen & Charles W. Craven Dixon, LLP Marshall, Dennehey, Warner, 225 West Wacker Drive Coleman & Goggin Chicago, IL 60606-1229 1845 Walnut St. (312) 201-2298 Philadelphia, PA 19103- [email protected] 4797 (215) 575-2626 Eighth Circuit [email protected] Diane B. Bratvold Rider Bennett, LLP Fourth Circuit 33 S. 6th St, Suite 4900 Steven R. Minor Minneapolis, MN 55402 Elliott Lawson & Minor (612) 340-7966 110-112 Piedmont Ave. [email protected] (24201) P.O. Box 8400 Ninth Circuit Bristol, VA 24203-8400 Diane R. Crowley (276) 466-8400 The Law Offices of Diane R. [email protected] Crowley 727 Contra Costa Ave. Fifth Circuit Berkeley, CA 94707 Charles Frazier, Jr. (510) 524-1531 Cowles & Thompson, PC [email protected] 901 Main St. Suite 4000 Tenth Circuit Dallas, TX 75202-3793 Katherine Taylor Eubank (214) 672-2124 Fowler, Schimberg & Flanagan, [email protected] PC 1640 Grant Street, Suite 300 Denver, CO 80203 (303) 298-8603 [email protected]

4 Certworthy Summer 2006 FROM THE CHAIR The Hit Programs Keep Coming

R. Daniel Lindahl Burnett Smith of Huntsville, Ala- about where the Court will go under bama, and David M. Axelrad of the leadership of new Chief Justice Encino, California, who organized John Roberts. And what a panel it the outstanding seminar. will be, featuring former United States Bullivant Houser Bailey PC The seminar had many highlights, Solicitors General Charles Fried, Ken- Portland, Oregon but my favorite was when Judge Ebel neth W. Starr, and Seth P. Waxman, [email protected] explained how he goes about reading and professor and supreme court ad- It is summertime and, in the words of an appellate brief. “The first thing I vocate Kathleen M. Sullivan of the George Gershwin, the livin’ is easy, do,” he said dryly, “is turn to the last Stanford University Law School. which makes this an appropriate time page to see how long it is.” Certainly Later that day, the appellate advo- to reflect on the committee’s activities words to remember as you contem- cacy committee will have its annual during the past six months and look plate moving for leave to file an over- meeting. And I’m delighted to report ahead to what’s coming next. length brief. that meeting will feature a presenta- In March 2006 the committee pre- Looking ahead, the DRI Annual tion on technology and appeals by sented its sixth seminar, and by any Meeting is October 11-15 in San committee members Eric J. measure it was the best yet, which is Francisco. Although I’m the commit- Magnuson and Diane Bratvold, both high praise because each seminar has tee chair, I’m not a complete DRI of Minneapolis. been superb. More than 200 attend- shill, so I have to admit that the An- So, as you can see, there are plenty ees were entertained and educated by nual Meeting does not always have a of good reasons to attend the annual fascinating presentations from an array lot to offer the appellate specialist. meeting, and I hope to see you there. of highly-accomplished judges, private But this year is distinctly different, as But if I don’t, perhaps we can connect practitioners, scholars, and corporate the Annual Meeting will feature two at the next appellate seminar, which is counsel, including Judge Michael programs of great interest to appellate set for February 2008 in Miami. I’m Daly Hawkins of the Ninth Circuit lawyers. excited to announce that Diane Court of Appeals, Judge Priscilla First, on October 13, the commit- Bratvold has agreed to serve as the Owen of the Fifth Circuit Court of tee is presenting a 90-minute pro- program chair for the Miami seminar, Appeals, Judge David M. Ebel of the gram entitled The New Supreme and you can expect to hear from her Tenth Circuit Court of Appeals, John Court. Committee members Linda T. very soon as planning begins. H. Beisner of O’Melveny & Myers, Coberly of Chicago, Michael B. King And, as always, I hope to hear from Beth S. Brinkman of Morrison & of Seattle, and Mary Massaron Ross you very soon if you have any ques- Foerster, Pamela S. Karlan of Stanford of Detroit will lead a discussion tions, comments, or suggestions about University, and Robert W. Powell of where a panel of Supreme Court the committee. Ford Motor Company. Congratula- watchers will gaze into the proverbial tions to program co-chairs Scott crystal ball and offer their views

Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws. Plato (427 BC-347 BC)

Summer 2006 Certworthy 5 FROM THE EDITOR Authors, Authors

Once again, it’s my privilege to present eye view of appellate oral argument. Certworthy is scheduled to be pub- an interesting batch of articles in this is- Steffen Johnson offers some pointers for lished. sue of Certworthy. And once again, I have writing effective reply briefs. And Beth • SW Virginia Law Blog (http:// several people to thank. Hanan reviews Joan Biskupic’s biogra- swvalaw.blogspot.com/). As the First on the list is Diane Crowley, our phy of recently retired Justice Sandra title suggests, this blog covers all vice-chair of publications, assistant edi- Day O’Connor. My thanks to all of things legal in the Commonwealth tor of Certworthy, and Ninth Circuit re- them. of Virginia. It’s written by Steve porter. Besides writing the Ninth Minor of Elliot, Lawson & Minor Circuit report, Diane edits the other cir- * * * in Bristol, Virginia, who serves as cuit reports. It’s a lot of work—I know I’d like to take a minute to talk about Certworthy’s Fourth Circuit re- because I used to have her job. Thanks the on-line publications of some of our porter. also to our twelve circuit reporters, who committee’s members. Many of you are • Abstract Appeal (http:// regularly sift through who knows how probably familiar with the plethora of abstractappeal.com/) covers Florida many reported decisions to select and legal blogs on the Web. But many of and the Eleventh Circuit. Its prin- bring to our attention the three or four you may not know that some high- cipal author is Matt Conigliaro of most interesting and important ones. quality legal blogs are written by mem- Carlton Fields in St. Petersburg, Many of them have performed the job bers of the DRI Appellate Advocacy Florida. One of Matt’s significant faithfully for several years now, and all of Committee. So when you finish reading accomplishments on this blog was them deserve our thanks. Certworthy, take a few minutes to visit his in-depth coverage of the Terri Next on the list is Ralph Johnson, some of these sites: Schiavo case, beginning in August our long-time Second Circuit editor, • Southern Appeal (http:// 2003 and running through 2005. who has lately become a regular con- southernappeal.org/). This is a very If you visit Abstract Appeal, you’ll tributor of feature articles. For this issue, southern, very conservative, very Fed- find links to his collection of en- Ralph contributes a primer on motions eralist, politically oriented blog. Its tries on the topic. for summary affirmance. Ralph’s articles main instigator is Steve “Feddie” • The (new) legal writer (http:// are always informative and useful, and Dillard of James, Bates, Pope & raymondpward.typepad.com/ this one is no exception. Spivey, LLP, Macon, Georgia. I had newlegalwriter/). This is a Web Thanks also to Matt Scott and Joe the pleasure of meeting and sharing a project that I started in January Parks. Matt and Joe have contributed an dinner table with Steve at our recent 2006; so far the experiment has article analyzing a pair of decisions seminar in Phoenix. Southern Appeal proven successful. The blog aspires handed down by the Supreme Court is consistently thought provoking, to be “a collection of resources for about a year ago, concerning displays of which makes it worth your while re- lawyers, who write.” If the topic in- the Ten Commandments on govern- gardless of your politics. terests you, then please visit. ment property. The Court approved one • New York Civil Law (http:// If you know of any other legal blog display and disapproved the other, leav- nylaw.typepad.com/). This acclaimed written by members of our commit- ing many of us wondering how the two legal blog is written by Matt Lerner tee, please send me an e-mail about decisions could be reconciled. Matt and of Goldberg Segalla LLP in Albany, it, so that it can be publicized in a Joe examine both decisions and con- New York. Matt contributed an ar- future issue of Certworthy. clude that they can’t. ticle to the last issue of Certworthy. Raymond P. Ward Rounding out this issue: Retired ap- He is taking a summer vacation from Adams and Reese LLP pellate judge Margaret Grignon and blogging, but promises to return in New Orleans, Louisiana Zareh Jaltorossian provide us a judge’s September, shortly after this issue of [email protected]

6 Certworthy Summer 2006 A Primer, from page 1 paper that they need to analyze in or- search reveals that within the last year ish Sch. Bd., 423 F.2d 1203 (5th Cir. der to resolve an appeal. or so, that court has had days on 1970) (per curiam). This article examines motions for which it granted dozens, if not more, In fact, some courts have used a summary affirmance, a procedural of such motions. For example, on motion for summary affirmance as an tool that can assist appellate attorneys April 12, 2006, the Fifth Circuit en- opportunity to resolve an appeal, even with minimizing their clients’ costs tered 29 orders granting motions for if the proceedings below were not as and with navigating through a system summary affirmance in favor of the clear as one would hope. For example, that some believe is at a breaking federal government. That day was in Fernandez v. Centerplate/NBSE, point. Besides reducing costs and as- hardly a record breaker. On February 441 F.3d 1006 (D.C. Cir. 2006) (per sisting with case management, the use 24, 2006, the Fifth Circuit entered curiam), the D.C. Circuit agreed with of motions for summary affirmance 78 orders granting motions for sum- the employee’s argument that her improves the public’s confidence in mary affirmance in favor of the federal claim under the Fair Labor Standards our legal system by resolving contro- government. It entered 42 such or- Act (FLSA) was not subject to dis- versies more expeditiously. Thus, mo- ders on December 14, 2005, 103 on missal for lack of subject matter juris- tions for summary affirmance November 9, 2005, and 53 on Au- diction. In particular, the court noted constitute a win-win situation for an gust 17, 2005. that pursuant to Arbaugh v. Y & H attorney representing an appellee. The popularity of motions for sum- Corp., 126 S.Ct. 1235, 1245 (2006), They provide an opportunity to re- mary affirmance is not limited to ei- when Congress does not rank a statu- duce the financial burden on the cli- ther the Fifth Circuit or the federal tory limitation as jurisdictional, ent and to defend an appeal in a government. Decisions and orders courts should treat the restriction as format attractive to the court. ruling on these motions are also issued nonjurisdictional in character. In- regularly by the D.C., Third, and stead, such a limitation is an element An Option to Consider Ninth Circuits. See, e.g., Moss v. Pot- of a plaintiff’s claim for relief. ter, No. 05-4021, 2006 WL 988794 Fernandez, 441 F.3d at 1009. Never- (3d Cir. Apr. 17, 2006) (per curiam); theless, the D.C. Circuit agreed with A Popular Tool for Some Fernandez v. Centerplate/NBSE, 441 the district court’s conclusion that the Motions for summary affirmance or F.3d 1006 (D.C. Cir. 2006) (per cu- employee did not have a claim under summary disposition have been riam); Cortes-Vence v. Ridge, 164 Fed. the FLSA. Thus, it converted the dis- widely used for decades by the federal Appx. 639 (9th Cir. 2006). Indeed, trict court’s dismissal for lack of sub- government in criminal and civil cases motions for summary affirmance are ject matter jurisdiction under Rule throughout the country. See, e.g., expressly provided for in the local 12(b)(1) of the Federal Rules of Civil United States v. Serrato-Balderas, No. rules or internal operating procedures Procedure into a grant of summary 05-50920, 2006 WL 1004828 (5th for the First and Third Circuits. 1st judgment and affirmed because the Cir. Apr. 12, 2006)(per curiam); Cir. R. 27(c); 3rd Cir. R. 27.4; 3rd district court’s ruling was predicated Russell v. Department of Justice, No. 04- Cir. I.O.P. 10.6. Moreover, parties in upon the employer’s undisputed evi- 5036, 2004 WL 1701044 (D.C. Cir. civil appeals have regularly used mo- dence demonstrating that the em- July 29, 2004)(per curiam); United tions for summary affirmance with ployee was paid overtime for all hours States v. Gomez-Perez, 215 F.3d 315 great success. See, e.g., Aldogan v. worked in excess of 40 per week. Id. (2d Cir. 2000); Wilson v. United Aldogan, 89 Fed. Appx. 285 (1st Cir. at 1006. States, 409 F.2d 604 (5th Cir. 2004) (per curiam); Rocha v. 1969)(per curiam). Motions for sum- Antonovich, 36 Fed. Appx. 260 (9th Numerous Opportunities and mary affirmance are especially popular Cir. 2002); Dewitt v. Wall, 41 Fed. Common Scenarios with government lawyers practicing in Appx. 481 (1st Cir. 2002) (per cu- There are a plethora of cases in which the Fifth Circuit. A WESTLAW riam); Thomas v. West Baton Rouge Par- the filing of a motion for summary af-

Summer 2006 Certworthy 7 firmance is justified and appropriate. curiam). The Fourth Circuit’s rules as to render the appeal frivolous and The sheer number of pending federal state that “[m]otions for summary af- because time was of the essence); appeals and the courts’ ongoing search firmance … are seldom granted” and Clark v. Gulesian, 429 F.2d 405, 407 for new methods to resolve them con- that they “should be made only after (1st Cir. 1970) (granting motion be- firms this point. For example, one briefs are filed.” 4th Cir. R. 27(f). cause issues were manifestly simple commentator counted more than Similarly, the Tenth Circuit has lim- and clear, legal citations were fully 6,200 summary dispositions by the ited the circumstances under which it dispositive of the issues, and no useful federal courts of appeals in 1993 will consider motions for summary af- purpose could be served by oral argu- alone. Martha J. Dragich, Will The firmance to cases involving superven- ment). Federal Courts Of Appeals Perish If They ing changes of law or mootness. 10th Publish? Or Does The Declining Use Of Cir. R. 27.2(A)(1)(b). See De The Legal Standard Opinions To Explain and Justify Judicial Guzmon v. INS, 16 Fed. Appx. 935, Decisions Pose A Greater Threat?, 44 937 n.4 (10th Cir. 2001). In articulating a legal standard, the Am. U. L. Rev. 757, 763 (1995). courts of appeals have been largely The opportunity to reduce costs Source of Authority consistent in their belief that a mo- through a motion for summary affir- tion for summary affirmance should mance usually correlates with the The authority for summary affirmance only be granted where the movant strength of your client’s position in appears to lie in Rule 2 of the Federal demonstrates that the appeal is the case. Consequently, the most ob- Rules of Appellate Procedure. Tho- meritless. For example, in Joshua v. vious scenario for employing the mo- mas, 423 F.2d at 1204. It provides as United States, 17 F.3d 378 (Fed. Cir. tion is where the appellant is pro se follows: 1994), the Federal Circuit recognized and the district court has issued a On its own or a party’s motion, a that summary affirmance is appropri- thorough decision. See In re: court of appeals may—to expedite ate “when the position of one party is Rodriquez, No. 05-5130, 2005 WL its decision or for other good so clearly correct as a matter of law 3843612 (D.C. Cir. Oct. 14, 2005) cause—suspend any provision of that no substantial question regarding (per curiam). The motion can also be these rules in a particular case and the outcome of the appeal exists.” Id. useful in cases with litigants who file order proceedings as it directs, ex- at 380. See Yates v. Nicholson, 140 multiple lawsuits arising out of the cept as otherwise provided in Rule Fed. Appx. 954, 954 (Fed. Cir. same or related events. See Zahran v. 26(b). 2005). The Third Circuit also applies Frankenmuth Mut. Ins. Co., No. 97- The courts of appeals have regularly the “no substantial question” stan- 1712, 1999 WL 191493, at *1 (7th disposed of cases using language con- dard. See Ren v. Sherman, 165 Fed. Cir. Mar. 25, 1999). sistent with Rule 2. See, e.g., Chemi- Appx. 235 (3d Cir. 2006) (per cu- cal Eng’g Corp. v. Marlo, Inc., 754 riam); McKoy v. Apker, 156 Fed. Appx. Less Than Unanimous Approval F.2d 331, 335 (Fed. Cir. 1984) (sum- 494 (3d Cir. 2005) (per curiam). marily affirming because appeal was The Ninth Circuit has indicated The ability to file a motion for sum- “clearly hopeless and unquestionably that, although it is difficult to format mary affirmance is not, however, avail- without any possible basis in fact or a precise standard, a motion for sum- able in all the circuits. The Sixth law”); Leigh v. Gaffney, 432 F.2d 923, mary affirmance should be filed only Circuit prohibits them. 6th Cir. R. 923 (10th Cir. 1970) (per curiam) where “the questions on which the de- 27(e)(3). The Fourth Circuit has in- (granting motion because question cision of the cause depends are so un- dicated that such motions “are re- presented was so unsubstantial as to substantial as not to need further served for extraordinary cases only and not warrant further argument); argument.” United States v. Hooton, should not be filed routinely.” 4th N.L.R.B. v. Playskool, Inc., 431 F.2d 693 F.2d 857, 858 (9th Cir. Cir. R. 27(f). Cf. Braitsch v. EMC 518, 519-20 (7th Cir. 1970) (per cu- 1982)(per curiam). Thus, motions Corp., No. 99-1149, 2000 WL riam) (granting motion because con- for summary affirmance should be 289382 (4th Cir. Mar. 20, 2000)(per tentions were found so unsubstantial “confined to appeals obviously con-

8 Certworthy Summer 2006 trolled by precedent and cases in ample, in State of New Jersey v. appeal exclusively in the context of which the insubstantiality is manifest Chesimard, 555 F.2d 63 (3d Cir. the motion. See United States v. from the face of the appellant’s brief.” 1977) (en banc), the defendant in a Aquino-Da La Rosa, 139 Fed. Appx. Id. Accordingly, where the outcome state criminal proceeding sought to 298, 300 (1st Cir. 2005) (per curiam) of a case is beyond dispute, a motion enjoin state officials from holding her (denying motion for summary affir- for summary disposition is of “obvious trial on Fridays, the orthodox Muslim mance, vacating sentence and remand- benefit to all concerned.” Id. “Simi- weekly holy day. The district court ing for resentencing). larly, where the outcome is not so denied her relief and she appealed. Moreover, the results of a motion clear, such a motion unduly burdens After an initial panel hearing, the for summary affirmance can be a sur- the parties and the court, and ulti- Third Circuit sitting en banc granted prise. In Love v. McCray, 413 F.3d mately may even delay disposition of the state’s motion for summary affir- 192 (2d Cir. 2005) (per curiam), the the appeal.” Id. Consequently, the mance in a 6 to 4 decision. It held Second Circuit denied a motion for Ninth Circuit will not ordinarily en- that the principles of Younger v. Harris, summary affirmance filed by the State tertain a motion for summary affir- 401 U.S. 37 (1971) barred a federal of New York in connection with a fed- mance where an extensive review of court from prohibiting state court ses- eral habeas petition under 28 U.S.C. the record of the district court pro- sions on Friday, the Islamic Sabbath, § 2254. The appellant in Love was ceedings is required. Id. in a pending criminal trial when avail- convicted in 1998 on charges of bur- In Taxpayers Watchdog, Inc. v. able state procedures to remedy the glary and larceny. Id. at 193. The Stanley, 819 F.2d 294 (D.C. Cir. alleged constitutional infringement principal evidence at trial was the 1987) (per curiam), the D.C. Circuit had not been exhausted. The case identification of the appellant by the imposed on the party seeking sum- produced two dissenting opinions. victim. Her testimony was based, in mary affirmance the “heavy burden of It would also be a mistake to as- part, on her identification of the ap- establishing that the merits of his case sume that the government is always pellant from a photographic array af- are so clear that expedited action is on the winning side of a summary af- ter the incident. However, on the justified.” Id. at 297. Thus, to sum- firmance. In Barnes v. United States, evening of the incident, the victim marily affirm, the D.C. Circuit be- 678 F.2d 10 (3d Cir.), aff’d 685 F.3d gave a description of the burglar to lieves that it must be able to conclude 66 (3d Cir. 1982), the government the police, who used it to develop a that “no benefit will be gained from appealed from a final judgment in fa- composite sketch that allegedly did further briefing and argument of the vor of the plaintiff in a suit for injuries not resemble the appellant. It was issues presented.” Id. at 297-298. sustained as a result of a swine flu in- disputed whether defense counsel for Moreover, in analyzing a motion for oculation administered under the Na- the appellant was told about the summary affirmance, the court is obli- tional Influenza Immunization sketch, or received it. In any event, gated to view the record and the infer- Program. The Third Circuit held that the sketch was not placed in evidence ences to be drawn therefrom, in the in view of the government’s concession at the appellant’s criminal trial. light most favorable to the non-mo- that it was liable for $911,396.67 of Subsequently, the appellant filed a vant. Id. at 298. See Walker v. Wash- the $1,577,112.60 awarded, partial federal habeas petition arguing inef- ington, 627 F.2d 541, 545 (D.C. Cir. summary affirmance of the judgment fective assistance of counsel and the 1980) (per curiam). to the extent of the $911,396.67 was prosecutor’s violation of Brady v. proper. The affirmance allowed the Maryland, 373 U.S. 83 (1963). The Intellectual Challenge plaintiff to commence collecting on district court denied the appellant’s the undisputed sum. petition and denied a certificate of ap- It would be a mistake to assume that And it would be a mistake to ap- pealability (“C.O.A.”). The Second summary affirmance motion practice proach a motion for summary affir- Circuit granted the appellant a is reserved for easy cases. Indeed, the mance lightly. As part of denying a C.O.A. on the Brady claim and ap- procedure has been utilized for cases motion, the court may not allow for pointed counsel to represent him. involving complex issues. For ex- further briefing and may address the The court-appointed attorney

Summer 2006 Certworthy 9 moved to withdraw and filed a brief issue of whether trial counsel was con- i.e., no substantial question, counsel pursuant to Anders v. California, 386 stitutionally deficient for failing to for an appellee still faces the challenge U.S. 738 (1967), which maintained make use of the sketch at trial (or in of drafting a motion that will per- that the appellant had no non-frivo- failing to procure it, as the case might suade the court to take the appeal off lous claim to raise on appeal. The have been) deserved encouragement. the standard, full briefing track, and state filed a motion for summary affir- Id. at 195. Finally, the motion panel instead resolve it via the abbreviated mance of the denial of the habeas pe- held that the appointment of new procedure. If counsel for the appel- tition. The appellant filed a pro se counsel was appropriate. Id. lant is an experienced appellate attor- brief in opposition pressing his Brady ney, the challenge will be even greater. claim as well as the ineffectiveness Conclusion For the attorney who accomplishes claim that was omitted from his initial this task, there should be a great deal C.O.A application. He also requested Although efficiency and cost-savings of satisfaction. a new attorney. are the primary impetus behind mo- Balancing the demands of the cli- A motion panel of the Second Cir- tions for summary affirmance, to limit ent with the demands of the court can cuit concluded that the Brady claim the discussion to those obvious ben- be a challenge. The motion for sum- was not frivolous. Consequently, it efits is short-sighted. There is much mary affirmance provides a tool to denied the state’s motion and decided more to the procedure than meets the help meet this challenge. It is a ve- to “say nothing more about [the eye. As demonstrated above, the is- hicle for reducing costs and for de- appellant’s] prospects, and defer[ed] sues addressed by motions for sum- fending an appeal in a format that to the merits panel, which w[ould] mary affirmance are not always as should be attractive to a court system have the benefit of a complete record, limited or as straightforward as the which is facing an overwhelming full briefing, and oral argument.” governing standards might suggest. caseload. Accordingly, appellate at- Love, 413 F.3d at 194. With regard Sometimes, complex appeals are re- torneys should give motions for sum- to the ineffectiveness claim, the panel solved by such motions. Further- mary affirmance their full concluded that it satisfied the stan- more, even when a case might fit consideration. dard for the issuance of a C.O.A. In within the generally accepted criteria particular, the panel believed that the for a motion for summary affirmance,

Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will. Mark Twain (1835-1910)

10 Certworthy Summer 2006 The Ten Commandments Cases and the Establishment Clause: Is “Location, Location, Location” the New Three-Part Test?

Matthew R. Scott Factual and Procedural Histories veyed the message that Texas sought Bell Nunnally & Martin LLP to endorse religion. Id. at 2858-59. Dallas, Texas The Fifth Circuit Court of Appeals [email protected] Van Orden affirmed with regard to both the pur- Joseph L. Parks In 1961, the Fraternal Order of the pose and the effect of the monument. Bell Nunnally & Martin LLP Eagles commissioned a six-foot tall Id. at 2859. Van Orden then peti- Dallas, Texas monument inscribed with the text of tioned the Supreme Court, which [email protected] the Ten Commandments and pre- granted certiorari. sented it to the “people and youth of Texas.” Van Orden, 125 S. Ct. at Introduction McCreary 2858. After the monument was for- Meanwhile, in the summer of 1999, On June 27, 2005, the United States mally accepted by the State of Texas, it the commissioners for McCreary and Supreme Court released its highly antici- was placed on the north grounds of the Pulaski counties placed in their re- pated decisions in two First Amendment Texas Capitol building, between the spective county courthouses large, cases involving the display of the Ten Capitol building and the Supreme framed copies of the King James Ver- Commandments on government prop- Court building. The Eagles paid the sion of the Ten Commandments, com- erty. In Van Orden v. Perry, 125 S. Ct. cost of erecting the monument, and plete with citations to the Book of 2854 (2005), and McCreary County v. two state legislators presided over the Exodus. McCreary County, 125 S. Ct. ACLU of Kentucky, 125 S. Ct. 2722 monument’s dedication. at 2728. In Pulaski County, the dis- (2005), the Court found, respectively, The petitioner, Thomas Van Orden, play was accompanied by a ceremony that a monument display of the Ten first encountered the monument in presided over by the county judge Commandments on the Texas State 1995 during trips to the law library at and the pastor of his church. Shortly Capitol grounds was constitutional, the Texas Supreme Court building. In thereafter, in November 1999, the while a document display of the Ten 2001, he sued seeking a declaration Kentucky ACLU sued both counties Commandments in two county court- that the monument violated the First claiming the displays violated the houses in Kentucky was unconstitu- Amendment’s Establishment Clause First Amendment’s Establishment tional. Regardless of the reasoning and an injunction mandating its re- Clause. Id. at 2729. The ACLU behind the Court’s contradictory judg- moval. Following a bench trial, the dis- sought a preliminary injunction ments, it is difficult to reconcile their re- trict court held the monument did not against maintaining the displays. sults and, thus, the decisions leave a great violate the Establishment Clause. The Before the district court responded deal of uncertainty in the increasing court held Texas had a valid secular to the ACLU’s request for an injunc- struggle over the proper role of religion purpose in recognizing and commend- tion, each county’s executive body au- in government. ing the Eagles for their work to reduce thorized second, more extensive juvenile delinquency, and also deter- displays to replace the initial ones. mined that a reasonable observer These displays included a large, would not conclude that the monu- framed copy of the Ten Command- ment (a “passive monument”) con- ments and eight other documents in

Summer 2006 Certworthy 11 smaller frames. The additional docu- cluded “[t]he narrow scope of the dis- panel of the Sixth Circuit Court of ments all had religious themes or were play – a single religious text unaccom- Appeals affirmed. ACLU of Kentucky v. excerpts of religious elements of panied by any interpretation McCreary County, 354 F.3d 438 (6th longer documents. The resolutions explaining its role as a foundational Cir. 2003). The counties petitioned authorizing these displays stated that document – can hardly be said to for certiorari, which the Supreme the Ten Commandments were “the present meaningfully the story of this Court granted. precedent legal code upon which the country’s religious traditions. Id. civil and criminal codes . . . of Ken- The counties appealed from the The Supreme Court Opinions tucky are founded.” Id. The resolu- preliminary injunction and then in- tions also recited several grounds for stalled a third display in each court- taking such a position, including a house. The counties did not pass new Van Orden 1993 vote by the Kentucky House of resolutions authorizing the third dis- The plurality and concurring opinions Representatives to “adjourn in remem- plays; nor did they repeal those au- Writing for a plurality of the Court brance and honor of Jesus Christ, the thorizing the second displays. The (including Justices Scalia, Kennedy, Prince of Ethics,” and the “Founding third displays consisted of nine docu- and Thomas), Chief Justice Rehnquist Father[s’] … explicit understanding of ments, each framed the same size. The declined to employ the three-part the duty of elected officials to publicly displayed documents included the Lemon test. Although he noted that acknowledge God as the source of Ten Commandments, the Magna the Court had, over the last twenty- America’s strength and direction.” Id. Carta, the Declaration of Indepen- five years, “sometimes” pointed to The district court issued a tempo- dence, the Bill of Rights, a picture of Lemon as the governing test in Estab- rary injunction ordering the immedi- Lady Justice, and four other docu- lishment Clause cases, he also pointed ate removal of the displays and ments. Id. at 2731. They were en- out other decisions describing the prohibiting any similar displays. Id. at titled “The Foundations of American Lemon factors as “no more than help- 2730. In reaching it’s decision, the Law and Government Display.” ful sign posts” which the Court had district court employed the three-part Posted with each document was a not applied in some recent cases. Van test promulgated in Lemon v. statement about its historical and le- Orden v. Perry, 125 S. Ct. 2854, Kurtzman, 403 U.S. 602, 612-13 gal significance. Id. 2860-61 (2005). Finding the Lemon (1971). In Lemon, the Supreme The ACLU moved to supplement test not useful in dealing with a case Court held that in order to pass First the preliminary injunction to enjoin involving the type of “passive monu- Amendment muster, a statute must the counties’ third displays. In re- ment” erected on the Texas Capitol first, have a secular legislative purpose. sponse, the counties argued the third grounds, he chose instead to ground Second, its principal or primary effect displays were intended “to demon- his analysis in the Nation’s history must be one that neither advances nor strate that the Ten Commandments and the monument’s nature. Id. inhibits religion. Finally, a statute were part of the foundation of Ameri- The Chief Justice began by detail- must not foster government’s excessive can Law and Government,” and “to ing the “unbroken history of official entanglement with religion. The dis- educate the citizens of the county re- acknowledgment by all three branches trict court concluded that the original garding some of the documents that of government of the role of religion display lacked any secular purpose be- played a significant role in the foun- in American life,” from the designa- cause the Ten Commandments “are a dation of our system of law and gov- tion of Thanksgiving Day by Presi- distinctly religious document, be- ernment.” Id. Granting the ACLU’s dent George Washington in 1789 lieved by many Christians and Jews to motion to enjoin the third displays, through several Supreme Court deci- be the direct and revealed word of the district court found the counties’ sions acknowledging the religion’s God.” McCreary County, 125 S. Ct. at latest assertion that their broader edu- place in the history and government 2730. And although the counties ar- cational goals were secular “crumble[s] of the United States. Id. at 2861. He gued the original display was meant . . . upon an examination of the his- noted many other displays of the Ten to be educational, the court con- tory of this litigation.” Id. A fractured Commandments in or around govern-

12 Certworthy Summer 2006 ment buildings “bespeak the rich erating the Ten Commandments.” Id. Ten Commandments statute had a American tradition of religious ac- (Scalia, J., concurring). secular purpose, noting it is “not a knowledgments,” and that merely Justice Thomas’ concurrence pro- work of art and does not refer to any having religious content or promoting vided a well-reasoned appeal for more event in the history of the State.” Id. a message consistent with a religious uniformity in the Court’s Establish- at 2873 (Stevens, J., dissenting). He doctrine does not run afoul of the ment Clause jurisprudence, and a call believed that the monument’s place- Constitution. Id. at 2863. for a return to the framers’ original in- ment (on the Capitol grounds as op- The Chief Justice then cited several tent. He suggested that the text and posed to a school) enhanced rather cases where religious messages or sym- history of the Establishment Clause than lessened its non-secular meaning: bols exceeded the boundaries of the resist application to the States. And if The fact that a monument “is in- Establishment Clause, particularly the Establishment clause does not re- stalled on public property implies Stone v. Graham, 449 U.S. 39 (1980), strain the States, “then it has no ap- official recognition and reinforce- and several other cases finding prayer plication here, where only state action ment of its message. That implica- unconstitutional at secondary-school is at issue.” Id. at 2865 (Thomas, J., tion is especially strong when the functions. He distinguished these concurring). Even if the Establish- sign stands in front of the seat of cases from others upholding the con- ment Clause or Free Exercise Clause government itself. The ‘reasonable stitutionality of prayer in the state limits a state’s power to establish reli- observer’ of any symbol placed un- legislature, observing that nothing in- gion, he argued, Texas’ monument attended in front of any capitol in dicated extension of Stone to a legisla- does not “establish” religion as that the world will normally assume tive chamber or capitol grounds. Id. at term was understood by the Framers. that the sovereign—which is not 2864. In his exceedingly brief analy- In his view, at the time of our Nation’s only the owner of that parcel of real sis, he concluded by finding the Texas founding, “establishment” of religion estate but also the lawgiver for the display to be much more “passive” involved actual legal coercion, such as surrounding territory—has spon- than the Ten Commandments display the mandatory observance of religion sored and facilitated its message.” that confronted elementary school or a mandatory tax supporting minis- Id. at 2882 (quoting Capitol Square children each day in Stone. Noting the ters. Merely acknowledging religion, Review Bd. v. Pinette, 515 U.S. 753, passive nature of the monument and he believed, does not constitute estab- 801-02 (1995) (Stevens, J., dissent- its “dual significance, partaking of lishment of religion. Because the Texas ing)). both religion and government,” the display did not compel Van Orden to Justice Stevens also dismissed the Court declined to find any violation do anything, Justice Thomas found no plurality’s reliance on previous public of the Establishment Clause by the coercion, and thus, no establishment displays and speeches regarding reli- Texas display. of religion by the State of Texas. gious adherence by public officials for, Justice Scalia’s concurring opinion, Justice Breyer, who concurred in as he noted, there is a difference be- short and sweet, noted the lack of the judgment only, disavowed Justice tween government action and public consistency in the Court’s opinions Thomas’ call for a more standardized officials’ actions. The former, he (“I join the opinion of the Chief Jus- approach to Establishment Clause noted, cannot contain an establish- tice because I think it accurately re- cases. He relied heavily on two things ment of religion, the latter can. flects our current Establishment in support of his concurrence—the Justice O’Connor’s dissent incorpo- Clause jurisprudence—or at least the monument’s placement and the rated her concurrence in McCreary Establishment Clause jurisprudence length of time it stood without chal- (see below). we currently apply some of the lenge. Meanwhile, Justice Souter, with time.”) He saw “nothing unconstitu- whom Justice Stevens and Justice tional in a State’s favoring religion The dissents Ginsburg joined, dissenting, flatly generally, honoring God through Justice Stevens, with whom Justice took issue with every justification set public prayer and acknowledgment, Ginsberg joined, dissenting, cast as- forth in the plurality opinion for up- or, in a nonproselytizing manner, ven- persions on the presumption that the holding the constitutionality of the

Summer 2006 Certworthy 13 display. He pointed out that the mes- the text of the Ten Commandments (and, as it turns out, one of her last great sage of the Ten Commandments is in- made the religious message hard to writings reflecting her common-sense herently religious and that singling avoid. Also, the counties’ initial decision and moderate approach to the law), em- them out for governmental display to display the Ten Commandments alone phasized that when the government asso- cannot be squared with governmental (and in a subsequent display, only with ciates one set of religious beliefs with the neutrality. Id. at 2892 (Souter, J., dis- other documents highlighting religious state and identifies nonadherents as out- senting). He rejected the plurality’s concepts) prevented them from credibly siders, “it encroaches upon the reasoning that a religious monument arguing that the Ten Commandments individual’s decision about whether and is constitutional when displayed with were being incorporated into an other- how to worship.” Id. at 2747 non-religious monuments, finding wise secular display. Id. at 2739-40. (O’Connor, J., concurring). While ac- that the Texas display, as one of seven- Justice Souter’s majority opinion also knowledging that many Americans find teen monuments with no common found Lemon’s “secular legislative pur- the Ten Commandments in accord with appearance, set out over twenty-two pose” inquiry viable, if not dispositive. Id. their personal beliefs, she emphasized, acres, would be taken “on its own at 2732-33. The county resolutions di- “[W]e do not count heads before enforc- terms without drawing any sense that recting the installation of the displays, ing the First Amendment.” Id. some purpose held the miscellany to- together with the circumstances sur- gether.” Id. at 2895 (Souter, J., dis- rounding the displays’ dedication, pro- The dissents senting). He also rejected the vided ample evidence of the counties’ Justice Scalia’s dissent, joined by Chief plurality’s reasoning that Stone’s hold- predominantly religious purpose in plac- Justice Rehnquist, Justice Thomas, and, ing was limited to the classroom set- ing the displays in their respective as to parts II and III, Justice Kennedy, ting, its characterizing the monument county courthouses. Id. at 2739. The dismissed the very foundation of the as more passive than the displays in majority rejected the counties’ argument majority’s opinion, arguing the First Stone, and its argument that the con- that true purpose is unknowable. It also Amendment does not mandate govern- stitutionality of the display was bol- rejected the counties’ argument that pur- mental neutrality between religion and stered by its having for 40 years pose should be inferred only from the non-religion. Rather, Justice Scalia as- without prior complaints. Id. at 2897 counties’ actions in installing the third serted that the plain text of the Constitu- (Souter, J., dissenting). and final displays. “No reasonable ob- tion, coupled with the history and server could swallow the claim that the traditions of the Nation, demonstrate McCreary Counties had cast off the objective so un- that public acknowledgment of religion mistakable in the earlier displays.” Id. at is proper. Id. at 2750 (Scalia, J., dissent- The majority opinion 2740. ing). He began by noting the Framers’ Relying largely on Stone, Justice Finally, in determining the reach of belief that morality was essential to the Souter, writing for a majority of the the Establishment Clause, the majority well-being of society, and that encourage- Court that included Justices Stevens, explained that no “elegant interpretative ment of religion was the best way to fos- O’Connor, Ginsburg, and Breyer, rule to draw the line in all the multifari- ter morality. He continued by detailing found significant similarities between ous circumstances” is to be had. Id. at several references to a supreme being by the displays held unconstitutional in 2742. Nonetheless, believing that the public figures throughout history. He Stone and those installed by the coun- Establishment Clause requires govern- concluded, “Nothing stands behind the ties. McCreary County, 125 S. Ct. at mental neutrality in religious matters, Court’s assertion that governmental affir- 2732-33. He noted that the counties’ the majority rejected the dissent’s posi- mation of the society’s belief in God is displays contained the actual text of tion that the deity in the minds of the unconstitutional except the Court’s own the Ten Commandments, as opposed Framer’s was a monotheistic God and say-so, citing as support only the unsub- to a more symbolic representation that the government may thus espouse “a stantiated say-so of earlier Courts going such as blank tablets, or tablets tenet of traditional monotheism.” Id. at back no farther than the mid-20th Cen- merely containing ten roman numer- 2744-45. tury.” Id. als. In the majority’s view, including Justice O’Connor, in her concurrence Justice Scalia noted his support for

14 Certworthy Summer 2006 governmental neutrality between religion Thomas in his concurrence in Van do not represent components of the and irreligion when public aid or free ex- Orden, “[T]he incoherence of the Court’s very foundation of state or local gov- ercise of religion is involved, but wrote decision in this area renders the Estab- ernment: the physical location where that such neutrality should be applied in lishment Clause impenetrable and inca- the law is made, and the physical lo- a more limited fashion when the issue is pable of consistent application. All told, cation where the law is brought to public acknowledgment of the Creator. this Court’s jurisprudence leaves courts, bear. The very fact that these vener- In his view, “[h]istorical practices . . . governments, and believers and nonbe- ated locations are sought for place- demonstrate that there is a distance be- lievers alike confused – an observation ment of other symbols (here, a tween the acknowledgement of a single that is hardly new.” Van Orden at 2866 religious symbol) is evidence of the Creator and the establishment of reli- (Thomas, J., concurring). The physical extraordinary symbolic importance gion.” Id. at 2752-53 (Scalia, J., dissent- location of the Ten Commandments dis- that these government facilities repre- ing). play, apparently the determinative factor sent. Justice Scalia also rejected Lemon’s re- in the Court’s inconsistent decisions in When mulling over the unfavorable quirement that government action have a Van Orden and McCreary, should not facts present in a case they are litigat- secular purpose and called for its aban- make the critical difference in the display ing, many a lawyer has uttered the donment. He argued that under the of a clearly religious symbol on govern- phrase “it is what it is.” With regard Court’s application of Lemon, a display ment grounds. to the Decalogue at issue in Van demonstrated to have no purpose of ad- Orden and McCreary, it is what it is: a vancing religion would still violate the The Schoolhouse, the Statehouse, or religious symbol. Regardless of the constitution if an objective observer erro- the Courthouse: Should Location argument (to which there is no dis- neously believed that the purpose of the Really Matter? agreement by the authors) that in display was to advance religion. Id. at The Court’s decisions in Stone, Van many respects, the rule of law can be 2757 (Scalia, J., dissenting). He con- Orden, and McCreary, tell us, respec- traced to the Ten Commandments, cluded by arguing that even if Lemon tively, that the display of the Ten the overwhelming, primary character were applied, the counties’ displays were Commandments is unconstitutional of the Decalogue is, and will always constitutional, opining that when the in public school buildings, constitu- remain, that of a religious symbol. As Ten Commandments are displayed along tional on the grounds of the state such, whether it is incorporated into a with other documents of secular signifi- capitol, and unconstitutional in a monument and placed on the state cance, “the context communicates that county courthouse. Some distinction capitol grounds among other monu- the Ten Commandments are included, can arguably be made between the ments, or framed and placed among not to teach their binding nature as a re- public schoolhouse, with its captive other framed documents on the wall ligious text, but to show their unique audience of impressionable young of a courthouse, these superficial dis- contribution to the development of the minds, and the locations at issue in tinctions do not change the underly- legal system.” Id. at 2759 (Scalia, J., dis- Van Orden and McCreary. However, ing character of the Ten senting). when the circumstances involve the Commandments as a religious sym- display of the actual text of the Ten bol. Even if the debate over whether Commentary Commandments by the government, Lemon remains a viable test were there simply is no meaningful distinc- clearly resolved in favor of the three The Court disserves us with two opin- tion between the grounds of the state prong test, changing the locale of a re- ions addressing the same subject, involv- capitol and the walls of the county ligious symbol still does not affect the ing nearly identical facts, but which courthouse. underlying purpose nor the underly- leaves us with markedly different results Few would argue that the state ing character of an undeniably reli- – the government’s display of the Ten capitol and the county courthouse gious symbol such as the Decalogue. Commandments constitutional in one differ in their significance as symbols Furthermore, for purposes of deter- setting, yet unconstitutional in another. of government and governance. Fewer mining the First Amendment consti- As appropriately pointed out by Justice yet would argue that these buildings tutionality of an object or symbol,

Summer 2006 Certworthy 15 looking to the intended purpose un- physical location or placement has erty to another simply makes no dif- der Lemon is perilous since such a de- nothing to do with its inherent reli- ference in the analysis of whether the termination may be limited by the gious character. Rather, the religious government is or is not taking sides forthrightness of those proposing the nature of an object or symbol is deter- on religion. display. mined by its physical characteristics Arguably, in some circumstances, and its historical meaning – not its Conclusion there may be some grey area as to physical location. whether a particular symbol is inher- Notwithstanding the viability of the ently religious. If one were to arrange Van Orden Cannot Be Reconciled Lemon test, and regardless of how the variations of representations of the Ten with McCreary Court determines whether or not an Commandments on a continuum of In all practicality, the Ten Command- object or symbol is inherently reli- degrees of “religiousness,” reasonable ment displays at issue in Van Orden gious, or whether or not the display of minds might differ as to what point a and McCreary were identical. While an inherently religious symbol on particular representation becomes “in- one was incorporated into a granite government property constitutes the herently religious.” For example, at monument and the other was incor- promotion of religion by government, one end of the spectrum (e.g. an out- porated into a framed document, differences in the physical location of line of a stone tablet containing no both displays contained the full, bib- the government owned property writing) a particular representation lical text of the Ten Commandments, should not be a factor, certainly not might not be considered inherently complete with references to “the the apparent determinative factor as religious, whereas, if we work our way Lord.” Both would fall at the same demonstrated in Van Orden and up the scale, (e.g. stone tablets with point on the hypothetical “continuum McCreary. The starting and ending Roman numerals I through X, or a of religiousness” discussed above and points of any Establishment Clause representation of Moses holding the one would be in a difficult position to analysis should be whether the chal- stone tablets, or stone tablets contain- credibly argue that these specific rep- lenged action equates to government ing the actual text of the Ten Com- resentations of the Ten Command- favoring one religion over another, or mandments) reasonable minds may ments are not inherently religious. religion over no religion. Evaluating differ as to the point at which a par- With all due respect to the Court, the Establishment Clause challenges is ticular representation crosses from only relevant analysis remaining to be different from evaluating real estate. “not inherently religious” to “inher- made is whether or not the display of As such, the Court should not focus ently religious.” However, regardless an inherently religious symbol on so heavily, if at all, on location, loca- of the point at which a variation of an government owned property promotes tion, location. object or symbol becomes considered religion. Moving the symbol from “inherently religious,” the object’s one type of government owned prop-

Prejudice is opinion without judgment. Voltaire (1694 - 1778)

16 Certworthy Summer 2006 “it had before it for review only the time, counsel would jointly inform Circuit Reports district court opinion from which the the court that “we’re close to settle- appeal had been taken.” 407 F.3d at ment.” 428 F.3d at 3. The letter con- 33. In the dissent’s view, a correct in- tained an emphasized statement that terpretation of 28 U.S.C. 46(c) meant the settlement was contingent upon First Circuit that the senior judge who sat on the defendants’ satisfaction that Aubin panel should not sit en banc review was assisting the defendants in good Senior Judge Who Sat on Panel because “there is currently no panel faith to the best of his ability. Ibid. May Take Part in En Banc decision available for the en banc The next day, Aubin’s counsel signed Rehearing, even though Panel court to review.” Id. at 34. and returned the letter. Decision Withdrawn As promised, Whittington told the Defense Counsel Sanctioned for Igartua de la Rosa v. United States, Aubin court that the parties were close Misleading Court and Plaintiffs 407 F.3d 30 (1st Cir. 2005) to settlement. A few months later, Sheppard v. River Valley Fitness Following the ruling in Igartua de la having resolved discovery issues and One, L.P., 428 F.3d 1 (1st Cir. 2005) Rosa v. United States, 386 F.3d 313 having obtained a satisfactory affidavit Two cases were filed against defen- (1st Cir. 2004), concerning whether from Aubin, Whittington authorized dants River Valley fitness club and its Puerto Rican residents may vote for Aubin’s counsel to file a stipulated owners, one by former employee the United States president and vice judgment and release the other settle- Sheppard, alleging sexual harassment, president, a petition for rehearing was ment documents, and judgment was and the other by club manager filed. The panel granted rehearing, entered in the Aubin case. Aubin, alleging he was fired in retalia- withdrew its opinion, and asked the Whittington then tried to put the tion for reporting Sheppard’s com- parties to address whether the United Aubin settlement to defendants’ ad- plaints. Defendants counterclaimed States was in default of its treaty obli- vantage in Sheppard’s case by writing against both plaintiffs, alleging they gations and the availability of declara- to her counsel, informing her of the had conspired to fabricate claims tory judgments concerning the settlement of Aubin’s case for a against the club. The two cases were government’s compliance with any “$50,000 judgment,” and demanding consolidated for discovery. such obligations. The majority of the $50,000 in settlement from Defendants’ attorney Whittington, active judges then voted that the re- Sheppard, as well. The letter did not the key player in this opinion, wrote hearing should be en banc. say that defendants had agreed to ac- to Aubin’s counsel, summarizing The original panel had two active cept a mere $100 as satisfaction from settlement discussions and stating judges and one senior judge, and a Aubin. that the parties would settle if Aubin question arose as to the eligibility of Wanting to see the settlement would agree to a stipulated judgment the senior judge to take part in the re- agreement, Sheppard’s counsel filed a against himself in the amount of hearing. In a per curiam opinion, the motion to compel its production. $50,000. However, Aubin would First Circuit decided that the senior Whittington responded by moving for only pay the defendants $100 – plus judge could also sit on the en banc a protective order seeking to keep the providing defendants details of his proceeding, citing United States v. terms of the agreement secret. That discussions with Sheppard about their Hudspeth, 42 F. 3d 1013 (7th Cir. motion led to the sanctions at issue claims. In addition, Whittington 1994). This prompted a dissent that here. Whittington offered to let the wanted information from two other distinguished Hudspeth on the ground court review documents in camera and people whom defendants thought that, in that case, the panel had requested that any other access be were also involved in the alleged con- agreed upon its decision which was limited to Sheppard’s counsel. The spiracy against them. His letter stated about to be released when the grant of court granted the order to the extent that the parties would not file a stipu- rehearing en banc intercepted it, it allowed counsel’s-eyes-only review. lated settlement until after deposing whereas, in the instant case, the panel After reading the agreement, those two witnesses and, in the mean- had withdrawn its opinion and thus Sheppard’s counsel filed a motion for

Summer 2006 Certworthy 17 relief from the protective order, seek- the Aubin court when he informed it sulting conviction be used to ing full freedom to disclose the agree- that the parties were close to settle- trigger an insurance policy’s ment, and for “sanctions pursuant to ment. criminal acts exclusion? Rule 26(c).” The magistrate judge Richard L. Neumeier (3) When applied to the business agreed, ordered the settlement agree- Morrison Mahoney, LLP of massage therapy, does the ment to be unsealed, and scheduled a Boston, Massachusetts term ‘professional services’ in- hearing on “appropriate sanctions, if [email protected] clude acts ancillary to the busi- any.” Id. at 5. ness of massage therapist, e.g., After that hearing, the magistrate the investigating, training, judge made three findings: Second Circuit monitoring, supervising of mas- Whittington had misled the court seurs? about the Aubin settlement; inten- Certification of State-Law (4) Under the language of the NIC tionally misled the plaintiffs to in- Questions Policy, do the negligence claims timidate them into a $50,000 Northfield Ins. Co. v. Derma Clinic, against [the clinic and its em- settlement; and sought the protective Inc., 440 F.3d 86 (2d Cir. 2006) ployee] arise out of the render- order to conceal his deceptive conduct In this declaratory judgment action, ing of professional services in the Aubin case. Ibid. The magistrate the district court denied coverage to when the underlying acts in- judge ordered Whittington to com- the defendant massage therapy clinic volve physical and sexual as- pensate plaintiffs for expenses and fees and its president under a professional saults during the performance in connection with the opposition to liability policy issued by one insurer of a massage? the motion for relief from the protec- and a portfolio policy (the “NIC The Second Circuit noted that certifi- tive order. The district court affirmed, policy”) issued by a second insurer cation is a discretionary device, both except for rejecting the magistrate which included commercial general li- for the certifying court and for the judge’s finding that Whittington ability coverage. Three women had court requested to answer the ques- sought the protective order “to conceal filed lawsuits against the clinic, its tions. Local Rule § 0.27 permits cer- his deceptive conduct in the Aubin president and one of its employees, al- tification to the highest court of a case.” Ibid. The magistrate judge as- leging a physical or sexual assault that state on unsettled and significant sessed $6,538 in costs and fees, and occurred during a massage treatment. questions of state law that will control the district court affirmed. The Second Circuit concluded that the outcome of a case pending before Whittington appealed. Affirming the appeal raised undecided but dis- the Second Circuit. Reciprocally, the the monetary sanctions, the First Cir- positive questions of Connecticut in- Connecticut Supreme Court may an- cuit found that the magistrate judge surance and contract law, and swer a question of law certified to it correctly concluded that certified, pursuant to Conn. Gen. by a court of the United States, if the Whittington’s “too-artful words ‘in- Stat. § 51-199b (2005) and Second answer may be determinative of an is- tentionally misled the plaintiffs into Circuit Local Rule § 0.27, the follow- sue in pending litigation in the certi- believing that Aubin did commit to a ing questions to the Connecticut Su- fying court and if there is no $50,000 payment in order to intimi- preme Court: controlling appellate decision, consti- date them into a $50,000 settlement (1) In a policy with multiple cov- tutional provision or statute. in this case.’” Id. at 10. The court erage parts like the NIC policy, Appellate Jurisdiction also found that Whittington’s argu- does a criminal acts exclusion Lugosch v. Pyramid Co. of ments in connection with the protec- in the Commercial Crime Cov- Onondaga, 435 F.3d 110 (2d Cir. tive order “. . . were so unjustified erage Form apply to disputes 2006) that he must personally bear the cost arising under the Commercial Plaintiffs alleged improprieties in the of opposing it.” Id. at 11. However, General Liability Form? operations of the defendant company, the court vacated the lower court’s (2) Can [the employee’s] plea of and two newspapers filed a motion to finding that Whittington had misled nolo contendere and the re-

18 Certworthy Summer 2006 intervene and sought access to docu- from apparently interlocutory orders newspapers. Thus, it concluded that ments filed under seal in connection under the collateral order doctrine on the second prong was satisfied. As to with the defendants’ motion for sum- the grounds that orders denying ac- the third prong, the Second Circuit mary judgment, arguing that the cess are final as to the intervenors and held that the denial of the “prompt documents were “judicial documents” that the intervention motion could public disclosure” the newspapers to which they had an immediate right have been treated as a separate civil sought would be unreviewable in an of access under both the common law case in which the ruling would have appeal from a final judgment, and any and First Amendment. A magistrate been final. However, in this case, the damage would be irreparable. judge issued an order holding the mo- court acknowledged that the matter Ralph W. Johnson, III tion “in abeyance” until after the dis- stood in a slightly different posture, as Halloran & Sage LLP trict court ruled on the summary the district court held “in abeyance” Hartford, Connecticut judgment motion, reasoning that it the intervention motion rather than [email protected] could not assess the strength of the denying it outright. newspapers’ argument until that time. Nevertheless, the Second Circuit Third Circuit The district court adopted the magis- rejected the defendants’ argument trate judge’s decision. that, based on this distinction, there Entry of Final Order Does Not The Second Circuit held that the was no conclusive determination of Provide Appellate Jurisdiction to district court erred in holding the the dispute and the appeal should be Previously Appealed motion in abeyance because the con- dismissed for lack of appellate juris- Unappealable Discovery Orders tested documents were judicial docu- diction. It noted that in none of the ADAPT of Philadelphia v. ments to which a presumption of cases dealing with motions held “in Philadelphia Housing Authority, immediate access applied. Because it abeyance” was the relief sought de- 433 F.3d 353 (3rd Cir. 2006) was not in a position to assess whether pendent on timing. In contrast, in In connection with motions to enforce the presumption had been overcome, the instant matter, the newspapers a settlement agreement, over which the Second Circuit remanded the case sought an immediate right of access to the trial court retained enforcement to the district court to make specific the contested documents. Conse- jurisdiction, the court issued certain and immediate findings. quently, the Second Circuit concluded discovery orders. The defendant filed With regard to the issue of appel- that this case was within the ambit of a notice of appeal as each order was late jurisdiction, the newspapers had its prior cases. In particular, it found entered. Subsequently, the district argued that although the order hold- that the district court’s decision did court entered its final order, which ing their intervention motion in abey- conclusively resolve a disputed issue denied all of the motions to enforce. ance was not a final judgment, the —“whether the Newspapers had a No appeal was taken from that order. Second Circuit nonetheless had juris- right of immediate access to the con- The threshold question posed and diction under the collateral order doc- tested documents” — and thus satis- answered by the Third Circuit was trine established in Cohen v. Beneficial fied the first prong of the collateral whether entry of the final order pro- Industrial Loan Corp., 337 U.S. 541 order exception. vided appellate jurisdiction over the (1949). To fit within Cohen, the in- With regard to the second prong, otherwise premature appeals from the terlocutory order must: (1) conclu- the Second Circuit held that the ques- discovery orders. The court held that sively determine the dispute in tion of public access to the documents appeals from discovery orders do not question, (2) resolve an important is- was completely separate from the mer- qualify as premature appeals that may sue completely separate from the mer- its of the underlying action. In par- ripen upon entry of final judgment, its of the action, and (3) be effectively ticular, it noted that it did not need and dismissed for lack of jurisdiction. unreviewable on appeal from a final to say anything about the merits of judgment. the plaintiffs’ underlying allegations The Second Circuit had previously in order to rule on the propriety of allowed media intervenors to appeal the district court’s order as to the

Summer 2006 Certworthy 19 Court Must Determine Personal Only Decisions on Identical Fourth Circuit Jurisdiction Before Addressing Issues Will Collaterally Estop Forum Non Conveniens Litigation in Bankruptcy Court Limiting Comity Bar Admissions Questions Adversary Proceeding Is Not Discriminatory Malaysia Int’l Shipping Corp. v. In re Duncan, 448 F.3d 725 (4th Morrison v. Board of Law Sinochem Int’l Co., Ltd., 436 F.3d Cir. 2006) Examiners, 2006 WL 1644010 (4th 349 (3rd Cir. 2006) After a state court jury determined Cir.) The Third Circuit joined the Fifth, she was liable for compensatory and A lawyer licensed in California filed Seventh, and Ninth Circuits in hold- punitive damages for the wrongful suit against the North Carolina Board ing that a court must determine death of a child in her care, the of Law Examiners, claiming that the whether or not it has personal juris- debtor filed a bankruptcy petition. In board’s requirements for obtaining co- diction before it addresses a question the bankruptcy case, the representa- mity admission to practice law in of forum non conveniens. The Second tive of the child’s estate filed an adver- North Carolina violate the Privileges and D.C. Circuits have ruled that a sary proceeding, contesting the and Immunities Clause of Article IV, court may pass over the personal juris- dischargeability of the wrongful death the Equal Protection Clause and the diction issue to resolve a question of judgment. The bankruptcy court Privileges or Immunities Clause of the forum non conveniens. ruled that the debtor was not collater- Fourteenth Amendment. North Caro- ally estopped by the outcome of the A Notable Quote lina requires lawyers licensed in other state court case from contesting the is- Kuhnle v. Prudential Securities, states to pass the bar exam for admis- sue of whether the debtor had acted Inc., 439 F.3d 187, 190 (3rd Cir. sion to practice, in the absence of a re- willfully and with malice. The estate 2006) ciprocal agreement allowing North filed an interlocutory appeal to the “This is a sad case. But, given the Carolina lawyers to be admitted with- district court, which in turn con- procedural history, we cannot grant out taking the other state’s bar exam. cluded that the debt was discharge- relief under the governing laws. As The board denied the plaintiff’s ap- able, because the state court verdict the Supreme Court stated more than plication for admission because for precluded a finding that the underly- two hundred years ago: ‘[M]otives of four of the six years preceding his ap- ing injury was a deliberate or inten- commiseration, from whatever source plication to the board, he had prac- tional one. they flow, must not mingle in the ad- ticed in California, which does not Applying the strict standards under ministration of justice. Judges, in the have comity with North Carolina. Virginia law for collateral estoppel, exercise of their functions, have fre- On appeal, the Fourth Circuit up- the court of appeals rejected the views quent occasions to exclaim, “durum held the North Carolina rule. The of both the estate and the district valde durum, sed sic lex est.”’ See court noted that reciprocity rules have court and agreed with the bankruptcy Penhallow v. Doane’s Adm’rs, 3 U.S. (3 generally been upheld, even though court, concluding that the state court Dall.) 54, 89, 1 L. Ed. 507, (1795) they may result in different outcomes verdict on liability and punitive dam- (‘Hard very hard, but such is the for some individuals. The court con- ages was not identical to the law.’).” cluded that, by the comity rule, the dischargeability issue of willful and Charles W. Craven state does not discriminate against malicious injury, and therefore the Marshall, Dennehey, Warner, Coleman citizens of other states in favor of her debtor was not collaterally estopped & Goggin own, but instead merely obtains for by the outcome of the state court case Philadelphia, Pennsylvania its citizens an advantage by offering and the issues determinative of [email protected] that advantage to citizens of any other dischargeability would have to be state on condition that the other state heard on the merits in the bankruptcy make a similar grant. court.

20 Certworthy Summer 2006 Qualified Immunity for Some, not Defining “Supervisor” for Fifth Circuit All, University Personnel Harassment Charges and Defenses Ridpath v. Board of Governors Marshall Howard v. Winter, 446 F.3d 559 (4th Enforcing a Consent-To-Settle University, 447 F.3d 292 (4th Cir. Cir. 2006) Clause 2006) A U.S. Navy employee brought suit un- Motiva Enterprises, L.L.C. v. St. At Marshall University, the plaintiff’s po- der Title VII, claiming that she was sub- Paul Fire & Marine Ins. Co., 445 sition involved overseeing compliance with jected to sexual harassment, including F.3d 381 (5th Cir. 2006) NCAA regulations. He sued the former physical contact. Critical to the plaintiff’s This case originated from an explosion football coach and university officials, claims was the issue of whether the ha- at a Motiva Enterprises refinery that claiming that they wrongfully sought to rasser was her “supervisor,” because under killed one employee and injured sev- pin the blame on him for a series of rules the Supreme Court’s Title VII jurispru- eral others. National Union supplied violations. The defendants appealed the dence, an employer has only limited de- $25 million of umbrella coverage, denials of their motions to dismiss, claim- fenses for sexual harassment by a providing for both the duty to defend ing qualified immunity. The court dis- supervisor. The court noted that plaintiff and to indemnify once the underlying missed the appeal for lack of standing as to had failed to show that the bad actor was insurance was exhausted. The policy the football coach, who had not raised in a position to take tangible employment also contained a standard consent-to- qualified immunity in the district court, actions or make economic decisions affect- settle clause. After National Union but agreed to take the other appeals, even ing her, as she failed to produce evidence sent Motiva a letter that tendered a though those defendants had belatedly that he could fire her, promote or demote defense subject to a reservation of raised qualified immunity for their first her, reassign her, or take any other direct rights, Motiva settled with a plaintiff time in the reply briefs on their motions action against her. The plaintiff provided in the underlying suit without Na- to dismiss. The court held that the offi- secretarial services for the harasser and 54 tional Union’s consent. Motiva paid cial-capacity defendants cannot claim others, but the court concluded that the the settlement out of its own funds qualified immunity. As to the individuals, harasser’s limited control over the and requested reimbursement from the court ruled by a split 2-1 vote that the plaintiff’s work was not enough in terms National Union. After National plaintiff had stated a “liberty” claim based of quality or quantity for him to be con- Union denied reimbursement, Motiva on the stigmatizing effect of the defen- sidered her supervisor. Because the Navy brought suit. The district court dants’ efforts to blame him for the rules could not be liable for the co-worker’s granted partial summary judgment violations. conduct unless it was negligent in re- for National Union. In addition, the entire panel agreed sponse to what it knew or reasonably On appeal, Motiva argued that Na- that the plaintiff had stated valid First should have known, the plaintiff had to tional Union’s tender of defense sub- Amendment claims when he alleged re- prove what the Navy knew. The court ject to its reservation of rights gave it taliation for his speech on matters of pub- concluded that knowledge of prior inci- the right to settle the underlying lic concern. As to whether these dents involving the display of inappropri- claim without consulting National constitutional rights were “clearly estab- ate images or use of foul language was Union. Relying on the Texas Supreme lished,” the court concluded that, on the insufficient to prove that the Navy had Court’s decision in State Farm Lloyds limited record presented by the motions constructive knowledge that the co-worker Ins. Co. v. Maldonado, 963 S.W.2d 38 to dismiss, the individuals were not en- would engage in the type of harassment (Tex. 1998), which held that an in- titled to qualified immunity, in spite of the plaintiff suffered. surer that tenders a defense with a res- the disagreement within the panel about Steve Minor ervation of rights is entitled to enforce the liberty claim and the traditional rule Elliott Lawson & Minor a consent-to-settle clause, the Fifth on First Amendment claims that “only in- Bristol, Virginia Circuit disagreed and affirmed for Na- frequently will it be clearly established [email protected] tional Union on this issue. that a public employee’s speech on a mat- Motiva also argued that, even if it ter of public concern is constitutionally breached the consent-to-settle clause, protected.” Id. at 320. National Union could not refuse to

Summer 2006 Certworthy 21 pay policy benefits unless it showed On appeal, the main issue was Lost Profit Damages for Breach of actual prejudice from the breach. The whether Reynolds’ second removal was a No-Hire Agreement Fifth Circuit agreed, holding that if proper under the judicially created Blase Industries Corp. v. Anorad the insurer is not prejudiced by the “voluntary-involuntary” rule. Under Corp., 442 F.3d 235 (5th Cir. 2006) breach, it has not been deprived of this rule, a suit that was not removable In this breach of contract action, Wil- the benefit of the bargain and is obli- when it commenced may only become son Solutions sued Anorad Corpora- gated to provide coverage. However, removable by the voluntary act of the tion for breaching a consulting upon reviewing the summary judg- plaintiff. An exception to the rule ex- agreement that prohibited either ment evidence, the court held that ists when a claim against a non-diverse party from hiring the other’s employ- National Union had suffered prejudice defendant is dismissed because of ees. Jason Schwartzman, a former as a matter of law because it was de- fraudulent joinder. In that instance, a consultant for Wilson, was hired by prived of its right to participate in the remaining diverse defendant may then Anorad in 1999. Wilson brought this settlement process, and affirmed on request removal. The Fifth Circuit action, seeking $341,000 in lost prof- that issue, as well. noted that there had already been a its for the year that Schwartzman Improper Joinder of a Non-Diverse previous finding that fraudulent join- worked for Anorad. The trial court Party Precludes “Voluntary-Involun- der did not exist, which was unreview- granted summary judgment to tary” Removal Rule able. Anorad, holding that the no-hire pro- Crockett v. R.J. Reynolds Tobacco Co., The court determined, however, vision was unreasonable and unen- 436 F.3d 529 (5th Cir. 2006) that a party can be improperly joined forceable. In this wrongful death suit, plain- without being fraudulently joined and On appeal, the issue was whether tiffs (collectively, “Crocket”) sued the still meet the policy exception to the Texas law would allow an employer to tobacco defendants (collectively, voluntary-involuntary rule. The pur- seek lost profit damages for breach of “Reynolds”) and the healthcare defen- pose of the fraudulent-joinder excep- a no-hire agreement regarding an at- dants (collectively, “Gulf Coast”) in tion is to prevent plaintiffs from will employee. In Texas, lost profit Texas state court. Because Crocket and blocking removal by joining non-di- damages must be established with rea- Gulf Coast were citizens of Texas, com- verse defendants who should not be sonable certainty, and cannot be plete diversity of citizenship did not parties — a finding of improper join- based on speculative, uncertain, con- exist. Nevertheless, Reynolds removed der will satisfy that purpose. In this tingent, or hypothetical evidence. the case to federal court, alleging that case, the state court severed the claims The Fifth Circuit held that it was im- Crocket fraudulently joined Gulf Coast because the burden of proof necessary possible to determine what amount of to defeat removal jurisdiction. The to prove a product liability claim is consulting fees Schwartzman would federal court determined there had completely different than that for a have earned for Wilson if he had not been no fraudulent joinder and re- medical malpractice claim. The state been lured away by Anorad because, manded the case to the state court. court’s severance on that ground was as an at-will employee, he was free to On remand, Reynolds successfully synonymous with a finding of im- resign from Wilson at any time. severed Crockett’s claims and again re- proper joinder. Accordingly, the court Moreover, it was not possible to prove moved. Reynolds then moved for held that severance and removal based with reasonable certainty the length judgment on the pleadings while on improper joinder would also pre- of time that Schwartzman would have Crocket moved to remand, arguing clude the application of the voluntary- remained an employee for Wilson, that Reynolds’ second attempt to re- involuntary removal rule; accordingly, but for Anorad’s offer of employment. move was improper because diversity Reynolds was permitted to remove to Accordingly, the Fifth Circuit af- had not been created through a volun- federal court. The Fifth Circuit af- firmed. tary act of the plaintiff. The district firmed the judgment on the pleadings Charles T. Frazier, Jr. court granted Reynolds’ judgment on in favor of Reynolds. Cowles & Thompson, P.C. the pleadings and denied Crocket’s Dallas, Texas motion as moot. [email protected]

22 Certworthy Summer 2006 Sixth Circuit filed a state action to collect a debt al- part the deputy’s motion for sum- legedly owed by plaintiffs. When mary judgment that had raised the Rule 54(b) Certification plaintiffs sought discovery, the com- qualified immunity defense due to Lowery v. Federal Express Corp., 426 plaint was dismissed without preju- credibility issues and conflicting evi- F.3d 817 (6th Cir. 2005) dice. In their federal complaint, dence as to whether the shooting was In a suit alleging federal claims for plaintiffs asserted that the law firm in self-defense. On the appeal from employment discrimination and re- and its clients had filed the state col- the denial of summary judgment on taliation under Title VII as well as lection complaint knowing that they the excessive use of force claim, the state law claims for breach of contract, did not have any means of proving Sixth Circuit determined that it had the district court granted summary that such debt was owed. In their de- appellate jurisdiction despite the judgment in favor of the employers on fense, the law firm and clients claimed deputy’s several arguments relating to the Title VII claims but denied sum- that they were absolutely immune unreviewable issues about disputed mary judgment on the state breach of from suit for behavior that occurred facts. The Sixth Circuit had jurisdic- contract claim. The district court during the course of the state court tion to consider the purely legal issue granted plaintiff’s request for entry of litigation. When the district court of whether the facts, as alleged by final judgment on the Title VII claims denied the defense of absolute witness plaintiff and construed by the district under Fed.R.Civ.P. 54(b). and advocacy immunities, the law court, would support a claim that the The Sixth Circuit dismissed the ap- firm and its clients sought an inter- deputy’s actions violated a clearly es- peal, holding that the district court locutory appeal pursuant to the collat- tablished right at the time of the had erred in entering final judgment eral order doctrine. Relying upon Will shooting. On that issue, the denial of under Rule 54(b) because plaintiff’s v. Hallock, 546 U.S. ___, 126 S. Ct. summary judgment was affirmed. claims arose out of the same aggregate 952 (2006), which clarified appellate Postjudgment Motions for of operative facts and sought to re- jurisdiction under the collateral order Attorney’s Fees cover for the same underlying injury, doctrine, the Sixth Circuit dismissed Miltimore Sales, Inc. v. thus constituting a single claim for the interlocutory appeal because de- International Rectifier, Inc., 412 purposes of Rule 54(b) analysis. fendants failed to demonstrate how F.3d 685 (6th Cir. 2005) Moreover, the district court abused its any “substantial public interest” In a case “present[ing] sort of an issue discretion in finding that there was no would be imperiled by delaying their of first impression” regarding the just reason for delay because: (1) the appeal until after the district court timeliness of post-judgment motions claims were so closely related, there entered a final order. The Sixth Cir- for attorney’s fees under Fed.R.Civ.P. was a possibility that the same facts cuit also held that mandamus relief 54(d)(2)(B), the Sixth Circuit held under a different theory might have to was not warranted. For a related case, that because a timely filed be revisited in a second appeal, and see Todd v. Weltman, Weinberg & Reis Fed.R.Civ.P. 59(e) motion destroys (2) a trial on the breach of contract Co., L.P.A., 434 F.3d 432 (6th Cir. the finality of the judgment, a motion claim could render the appeal on the 2006). for attorney’s fees pursuant to Rule Title VII claims moot. Smith v. Cupp, 430 F.3d 766 (6th 54(d)(2)(B) is timely if filed within Cir. 2005) fourteen days of the district court’s or- Interlocutory Appeals from A section 1983 civil rights lawsuit was der disposing of the Rule 59(e) mo- Denials of Immunity Defenses filed against a deputy sheriff who had tion. Noting that the interplay of the Kelly v. Great Seneca Financial shot and killed an intoxicated arrestee federal rules “create inefficiency and/ Corp., 447 F.3d 944 (6th Cir. 2006) who was attempting to flee arrest after or uncertainty for litigants in this Plaintiffs filed suit against a law firm gaining control of the police cruiser context,” the Sixth Circuit cautioned and its clients, alleging violations of where he had been handcuffed but that “[i]n nearly every case where at- the Fair Debt Collection Practices Act left unsupervised while the deputy torney fees are available, the prevailing and the Ohio Consumer Sales Prac- spoke briefly with the tow truck party will now need to file not one, tices Act. The law firm had previously driver. The district court denied in

Summer 2006 Certworthy 23 but two fee applications — an initial Eighth Circuit First, the appellate court noted that fee application for fees incurred secur- five sister circuits have held that an ing the favorable judgment, and a Order Remanding for Further order to remand to an ERISA plan ad- supplemental application for fees in- Development of Administrative ministrator is not appealable as a final curred defending postjudgment mo- Record Not Appealable decision. Id. at 1090. The court then tions such as Rule 59(e) motions.” Borntrager v. Central States, applied the collateral order doctrine, Id. at 691. Southeast & Southwest Areas which provides that an interlocutory Deja Vu of Nashville, Inc. v. Metro. Pension Fund, 425 F.3d 1087 (8th order is immediately appealable if it Gov’t of Nashville & Davidson Cir. 2005) conclusively “resolve[s] an important County, 421 F.3d 417 (6th Cir. Applying the collateral order doctrine, issue completely separate from the 2005), cert. denied, 2006 U.S. the Eighth Circuit dismissed a pen- merits of the action” and is “effectively LEXIS 4703. sion fund’s appeal and held that the unreviewable on appeal from a final Affirming an award of attorney’s fee district court’s order remanding for judgment.” Id. at 1092 (citation pursuant to 42 U.S.C. §1988, the further development of the adminis- omitted). Reasoning that the order to Sixth Circuit held that the United trative record was neither final and remand was not immediately appeal- States Supreme Court’s intervening appealable nor appealable under the able because it was integral to the decision in City of Littleton v. Z.J. collateral order doctrine. merits of the wrongful expulsion Gifts, 541 U.S. 774 (2004) did not CRST, a collective name for several claim and fully reviewable upon final upset plaintiff’s status as a prevailing interstate trucking companies, con- judgment, the court also observed party because that status became final tributed to Central States, a multi- that Central States did not justify im- when the Supreme Court denied cer- employer pension fund, on behalf of mediate appellate review simply by tiorari during an earlier appeal taken CRST’s employees. Id at1088. Be- showing additional litigation expense in the case. Moreover, almost con- cause CRST replaced departing em- could be avoided. Id. at 1092-93. tinuously since the lawsuit was initi- ployees with independent contractors The district court’s remand order ated, plaintiff had successfully raised and deprived Central States of new included the opportunity for further constitutional challenges that en- member contributions, Central States development of the administrative joined defendant’s enforcement of a expelled CRST for violating its “ad- record, but this ruling also was not local ordinance requiring sexually ori- verse selection” policy and CRST paid immediately appealable. The Eighth ented businesses to obtain operating withdrawal liability of over $300,000. Circuit concluded that Central States licenses and performers in such busi- Id. at 1089. CRST (and affected was free to confirm its decision on the nesses to obtain permits. The injunc- union member employees such as existing record, although the district tive relief constituted a legally plaintiff Borntrager) then sued Cen- court’s order “intimated” it would not sanctioned change in the relationship tral States and moved for an order de- uphold it. “The fact that a discovery between the two parties more than claring that it had been wrongfully order may be onerous or inconvenient ample to justify plaintiff’s “prevailing expelled from the pension fund, does not make the order immediately party” status. Finally, the Supreme among other things. Id. at 1088, appealable under the collateral order Court’s decision in Z.J. Gifts did not 1089. The district court denied Cen- doctrine.” Id. at 1093. introduce any “special circumstances” tral States’ motion to dismiss and re- Premature Notice of Appeal Does that would render an award of manded to the Central States Trustees Not Save Appeal From attorney’s fees unjust. for further development of the record Interlocutory Orders Timothy Gallagher and additional discovery on adverse Dieser v. Continental Casualty Co., Gallagher Sharp selection. Id. at 1089. Central States 440 F.3d 920 (8th Cir. 2006) Cleveland, Ohio appealed. In dismissing an appeal where the ap- [email protected] The Eighth Circuit granted CRST’s motion to dismiss the appeal pellants had appealed from two orders for lack of appellate jurisdiction. but not the third order that resolved

24 Certworthy Summer 2006 pre-judgment interest, the Eighth immediately followed by the entry of of one such deadline by holding that Circuit adopted a narrow interpreta- judgment.” The court held that be- “less” will henceforth mean “more.” tion of the rule saving prematurely cause the first two orders expressly left Sometimes. filed appeals. Federal Rule of Appel- matters unresolved, the notice of ap- Most briefly stated, in Amalgam- late Procedure 4(a)(2) provides that peal was not saved by Rule 4(a)(2). ated I, the union filed suit in state notices of appeal filed after a decision The court added that the employer court against employer Laidlaw, alleg- or order but before entry of judgment and plan administrator were not ing violations of meal and rest period may be treated as filed on the date of within the group that Rule 4(a)(2) laws, Laidlaw removed to federal entry. was intended to protect. Based on court, the union moved to remand, The case involved recovery of dis- statements in their district court and the district court denied the mo- ability benefits under ERISA. An Au- briefs and in the notice of appeal, ap- tion. Six days later, the union filed a gust 2004 order and memorandum pellants appeared to realize that the notice of appeal in the district court opinion awarded a former employee August and March orders were not from that order, citing 28 U.S.C. § some benefits but also set a bench appealable and that they intended to 1453(c)(1), the provision of the Class trial to resolve remaining issues. A “include in their appeal any award of Action Fairness Act allowing appeals second memorandum and order in prejudgment interest.” Dieser, 440 from orders granting or denying re- March 2005 assessed statutory penal- F.3d at 926. However, this “state- mands of class actions. That section ties and attorney’s fees but also or- ment of intent is insufficient” to sat- states that a court of appeal may ac- dered the former employee to show isfy the appellate rules and, without a cept such an appeal “if application is cause as to prejudgment interest and notice of appeal filed after the June or- made to the court of appeal not less provided for a response. The em- der, the appeal was dismissed for lack than 7 days after entry of the order” ployer and plan administrator filed a of jurisdiction. Id. at 926-27. Re- (emphasis added). notice of appeal 30 days after the quests for rehearing and rehearing en Laidlaw moved to dismiss the ap- March 2005 order. A third order in banc were denied. peal in the Ninth Circuit, arguing June 2005 resolved remaining issues, Diane Bratvold that, because a section 1453(c)(1) ap- but appellants did not appeal from Rider Bennett, LLP peal is discretionary, Federal Rule of that order. Minneapolis, Minnesota Appellate Procedure 5 applies, and The Eighth Circuit, acting sua [email protected] that the notice filed did not comply sponte, held that the notice of appeal with Rule 5, as it was filed in the was premature because the first two Ninth Circuit wrong court and did not set forth the orders “did not purport to dispose of facts of the case or the questions to be all issues in the case.” Id. at 923. Statutory Construction and the raised on appeal, as required. The Further, the Eighth Circuit held that Absurdity Doctrine: Less Is union opposed and filed a petition the appeal was not saved by Rule More, More or Less under Rule 5 for permission to appeal 4(a)(2), which states that “[a] notice Amalgamated Transit Local Union 43 days after entry of the order, this of appeal filed after the court an- 1309 v. Laidlaw Transit Services, time elaborating on the facts and is- nounces a decision or order—but be- Inc., 435 F.3d 1140 (9th Cir. 2006) sues and filing in the Ninth Circuit. fore the entry of the judgment or (“Amalgamated I”); Amalgamated Under the precise wording of the order—is treated as filed on the date Transit Union Local 1309, AFL-CIO statute, requiring filing “not less than of and after the entry.” The court v. Laidlaw Transit Services, Inc., 7 days after entry of the order,” the cited FirsTier Mortgage Co. v. Investors 448 F.3d 1092 (9th Cir. 2006) first notice of appeal was untimely, as Mortgage Insurance Co., 498 U.S. (“Amalgamated II”) only six days had elapsed, while the 269, 276 (1991), where the Supreme These two opinions play upon the ap- later petition to appeal was timely, as Court held that Rule 4(a)(2) applies pellate lawyer’s biggest fear – missing the statute imposes no final date. “only when a district court announces the deadline for filing a notice of ap- However, the court saw things exactly a decision that would be appealable if peal – and complicate the calculation in reverse. It held that what Congress

Summer 2006 Certworthy 25 really meant to say was “not more than ity admitted in Amalgamated I that most importantly, “undermines our 7 days,” which made the first notice the statutory language was unambigu- own credibility.” Id. at 1100. The timely and the second notice un- ous, the duty of interpretation never dissent then concluded: timely. But the timely notice was defec- arose, and that the only “legislative We command no army; we hold no tive: “Under our interpretation, [the history” the panel had to rely upon purse. The only thing we have to en- union’s] timely notice of appeal is in- was irrelevant, as it was a report not force our judgments is the power of effectual and their subsequent petition submitted to the Senate, House or our words. When those words lose for permission to appeal was filed too president until after all three had al- their ordinary meaning – when they late.” Amalgamated I, 435 F.3d at ready passed the bill into law. become so elastic that they may mean 1146. The dissent also argued that none the opposite of what they appear to However, it seems that two wrongs of the three exceptions to the “plain mean – we cede our right to be taken made a right for the union: “To avoid language rule” allowed the panel to seriously. Neither Congress, nor the the serious unfairness and potential redraft the language: parties, nor the judiciary benefits due process violation that applying 1. The “constitutional avoidance from the panel’s decision. our holdings to this case might raise, doctrine” only allows deviation Ibid. we exercise our authority under FRAP from the language of a statute Diane R. Crowley 2 to suspend for good cause the re- when adherence to the appar- The Law Offices of Diane R. Crowley quirements of FRAP 5(a)(1), (b)(1), ent meaning would render the Berkeley, California and (c) in this case, and construe [the statute unconstitutional, a [email protected] union’s] timely notice of appeal and claim never made here. untimely petition . . . as together con- 2. The “scrivener’s error exception” struing one timely and proper peti- does not apply where there is Eleventh Circuit tion for permission to appeal.” Id. at no obvious clerical or typo- 1146-47. Laidlaw’s motion to dis- graphical error; here, the word- Interlocutory Appeals: Appeals of miss the appeal was denied. ing “makes perfect sense.” CAFA Remand Orders At this point, the real shouting 3. The “absurdity doctrine” does Miedema v. Maytag Corp., 450 F.3d match began. As detailed in Amal- not apply because the plain 1322 (11th Cir. 2006) gamated II, a Ninth Circuit judge, language does not lead to “pa- The Eleventh Circuit in this case held hearing of this “rewriting” of the stat- tently absurd results,” such as that petitions for permission to appeal ute, called sua sponte for a vote on rendering another section of remand orders in cases removed under whether to rehear the matter en banc. the statute inoperative or con- the Class Action Fairness Act must be The call for rehearing failed, but a tradictory. Citing several other filed within 7 days of the order in small minority of judges dissented. statutes also using the “not less question. In so holding, the Court The original panel stated that its than ___ days” phrase, the joined the other circuits who have duty was to “discern the intent of court noted that “Congression- read CAFA’s language requiring a peti- Congress,” and that the “plain mean- ally-imposed deadlines are ‘in- tion to be filed “not less than 7 days ing rule” justified its decision. Amal- herently’ arbitrary and are not after entry of the order” to mean “not gamated II, 448 F.3d at 1093. The absurd, even when they may more than 7 days.” The Court ob- dissent, reading 43 days as a time pe- seem irrational.” Id. at 1098- served that to read the statute literally riod “not less than 7 days” and thus 99. would produce an absurd result: timely under the terms of the statute, Finally, the dissent argued that the “there would be a front-end waiting stated that the refusal of the court to majority’s action “forces both legisla- period (an application filed 6 days af- rehear the matter en banc suggested tive and judicial branches to deviate ter entry of a remand order would be “the parade is marching in the wrong from their respective constitutional premature) but there would be no direction.” Id. at 1094-95. The dis- roles,” “strips citizens of the ability to back-end limit (an application filed sent asserted that, because the major- rely on the laws as written,” and, 600 days after entry of a remand order

26 Certworthy Summer 2006 would not be untimely.” The Court ment on review if the appellant fails pated appeal is “frivolous, unreason- also held that CAFA’s 60-day limit on to ensure the record on appeal is com- able, or groundless.” The Court found an appellate ruling runs from the plete. The record on appeal in this that Christiansburg Garment Co. v. Court’s later entry of an order grant- case was a complete mess. Even after EEOC, 434 U.S. 412 (1978), necessi- ing permission to appeal, not from oral argument, the Court asked the tated this additional finding in the the earlier filing of the petition for attorneys to attempt to reconstruct civil rights context. The court made permission to appeal. some of the evidence that the District clear that a district court generally has Court relied on to find a biology text- the discretion to require a bond to Preservation of Error: Batson book sticker violated the Establish- cover an opponent’s anticipated appel- Challenges ment Clause. When even the parties late fees if the fee-shifting statute in- United States v. Houston, — F.3d —, could not figure out what evidence cludes attorney’s fees in the definition No. 04-16524, 2006 WL 1995456 had been offered, the Court threw up of “costs.” (11th Cir. July 19, 2006). This crimi- its hands. Under these circumstances, nal case has broader application to Appellate Jurisdiction: Appealable the Court was unwilling to affirm challenges under Batson v. Kentucky, Arbitration Orders based on the state of the record. In- 476 U.S. 79 (1986). The Court held Jackson v. Cintas Corp., 425 F.3d stead, it held that remand was more that the Batson challenge at issue had 1313 (11th Cir. 2005). The Eleventh appropriate based on the presence of not been sufficiently preserved. The Circuit held that an order compelling six factors: (1) the appellant did not appellant argued that the Government arbitration and dismissing a compli- have access to the evidence at the time improperly struck African-American ant is a final appealable order, despite the appeal was taken, (2) it was not jurors from the jury because they had the court’s decision to retain jurisdic- the appellant’s fault that the evidence family members with a criminal his- tion over a pending Rule 11 motion was missing from the record, (3) both tory. The appellant argued this was for sanctions. the appellant and the appellee dili- pretextual because there were white Scott Burnett Smith gently (but unsuccessfully) attempted members of the venire who also had Bradley Arant Rose & White LLP to supply the Court with the missing family members with criminal histo- Huntsville, Alabama evidence, (4) the Court had serious ries that the Government did not [email protected] doubt about the decision below with- choose to strike. The Eleventh Circuit out the missing evidence, (5) both refused to consider this argument, side challenged the district court’s de- D.C. Circuit however, because the appellant did cision, and (6) the issues were of sub- not raise it at trial. As a result, the stantial public importance and Governments Are People, Too (at Court observed that it did not have “need[ed] to be resolved on their mer- least under Rule 45) “the benefit of the prosecutor’s expla- its based on the facts instead of based Yousuf v. Samantar, —F.3d —, nation for why he struck the black ve- upon mutual mishaps, mistakes, and 2006 WL 1651050 (D.C. Cir. 2006) nire members rather than the white misunderstandings about the evi- Reversing and remanding the district venire members” nor did it have “the dence.” court’s denial of plaintiffs’motion to benefit of a finding by the trial judge compel compliance with a subpoena as to the credibility of such explana- Bonds: Cost Bond for Appellate served upon the United States Depart- tions.” Attorney’s Fees ment of State, the D.C. Circuit con- Young v. New Process Steel, 419 F.3d Record on Appeal: Incomplete or firmed that the United States is a 1201 (11th Cir. 2005). The Eleventh Confused Record “person” subject to subpoena under Circuit held that a district court can- Selman v. Cobb County Sch. Dist., 449 Rule 45 of the Federal Rules of Civil not force a losing civil rights plaintiff F.3d 1320 (11th Cir. 2006). The Procedure. Rule 45(a)(1)(C) provides to post a bond covering the Eleventh Circuit made an exception that every subpoena shall: defendant’s appellate fees, unless the to the rule that it will affirm the judg- “[C]ommand each person to whom it court makes a finding that the antici- is directed to attend and give testi-

Summer 2006 Certworthy 27 mony or to produce and permit in- caselaw applying the Dictionary Act a speed law to a policeman pursuing a spection and copying of designated to the Federal Rules, and found it criminal or the driver of a fire engine books, documents or tangible things doubtful . . . whether the Rules are responding to an alarm.” Id. at *5, cit- in the possession, custody or control properly considered an ‘Act of Con- ing Nardone v. United States, 302 U.S. of that person….” Fed.R.Civ.P. gress’ subject to that Act.” Id. at *3. 379, 383-84 (1937). 45(a)(1)(C) (emphasis added). The The panel observed, however, that the Turning to customary tools of district court hinged its denial of definition of “person” in the Dictio- statutory interpretation, the D.C. plaintiffs’ motion to compel the nary Act, 1 U.S.C. § 1 (defining “per- Circuit panel determined that the government’s compliance with a Rule son” to include “corporations, term “person” as used in the Federal 45 subpoena on a “longstanding in- companies, associations, firms, part- Rules of Civil Procedure consistently terpretive presumption” recognized by nerships, societies, and joint stock means not only natural persons and the D.C. Circuit in Al Fayed v. CIA, companies, as well as individuals”) business associations but also govern- 229 F.3d 272, 274 (D.C.Cir.2000), would not control its analysis in any ments, including the United States. that the term “person” in a statute event, as the version upon which the Finding that the government provided does not include the United States. government relied was passed after no reason for the appellate court to ig- In Al Fayed, the D.C. Circuit de- Rule 45 was drafted. nore the Supreme Court’s command cided that the term “person” as used The panel also found that the dis- that courts interpret each federal rule in 28 U.S.C. § 1782 did not include trict court erred in presuming the in pari materia with the others, the the government, based on the applica- government is not a “person” covered panel held that the government is a tion of the common law presumption by Rule 45, finding that the common “person” subject to subpoena under of statutory interpretation that the law presumption against defining the Rule 45 regardless whether it is a government is not a “person,” as well government as a person operated in party to the underlying litigation, and as the Dictionary Act, 1 U.S.C. § 1. only two categories of cases not impli- remanded to the district court for fur- As to the meaning of the same term cated by Rule 45: (1) where the stat- ther consideration of the government’s “person” in Rule 45, however, the ute, “if not so limited, would deprive remaining objections to the subpoena. D.C. Circuit panel in Yousuf found the sovereign of a recognized or estab- Rebecca Womeldorf that neither the Dictionary Act nor lished prerogative title or interest,” Spriggs & Hollingworth the common law presumption con- such as a statute of limitations; and Washington, D.C. trolled. (2) where deeming the government a [email protected] As to the Dictionary Act, the D.C. “person” would “work obvious absur- Circuit noted that it “found no dity as, for example, the application of

28 Certworthy Summer 2006 WRITER’S CORNER The Anatomy of an Effective Reply Brief

Steffen N. Johnson brief after finishing the appellee’s brief. swer to these questions will dictate the Winston & Strawn L.L.P. If your opposing counsel have done focus and organization of your reply Washington, D.C. their job, that brief will have advanced a brief. [email protected] substantial theory supporting affir- For example, suppose you are brief- mance or have muddied the waters with ing a case in which the plain language In law, as in life, not everyone gets the extraneous material—deflecting atten- of a contract favors you, but the other last word. So when that opportunity tion from the real issues or making the side has muddied the waters with ex- comes along, you have to make the case seem too complicated to do any- trinsic evidence about what the parties most of it. For appellate brief-writers, thing but affirm. Either way, your au- really intended. If so, lead off by point- that opportunity is the reply brief. And dience is not likely to be thinking on ing out that the principal failure in your in a close case, the reply brief can be vi- your terms when it picks up your final opponent’s brief is its failure to come to tal to helping the court see the case brief. grips with the contract’s terms. Then, your way. Your job, then, is to re-establish your in a succinct, hard-hitting way, remind How do you make the most of your theory of the case. In fact, by the time the court why those terms govern. reply? There are the basics, of course. the judges have read the introduction to Close your introduction by explaining Avoid simply rehashing the points made your reply brief, they should be singing why, even if the court were to look at ex- in your opening brief. Do not advance your tune again, or at least remember trinsic evidence, the case should come new arguments or theories (unless justi- what that tune is. So how do you get out your way. Approaching your reply fied by developments that post-date the judges refocused on the right issues brief in this way will help the judges see your opening brief). Thoroughly rebut and themes? not only why your opponent should the other side’s main attacks on your The answer depends upon the case, lose, but why you should win. case, but make the brief no longer than but here are two practical tips. First, re- necessary. And in the rare case where read your opening brief and make a list Spend Extra Time Writing a the other side fails to cast any real doubt of any significant arguments to which Compelling Introduction on your opening points, waive your re- your opposing counsel did not respond. ply. This is a simple discipline, but it will As noted above, the most important The most effective reply briefs, how- ensure that you do not miss an oppor- goal of your introduction is re-establish- ever, do something more. Ideally, they tunity to point out their failure to ad- ing your theory of the case. The best leave the panel feeling that both the law dress a key point, and it will refocus introductions, however, will also include and the equities are on your side—that your attention on your most compelling a short response to your opposing the law will make more sense if you pre- themes. (In a close case, it will also counsel’s strongest arguments and point vail. Moreover, the best reply briefs boost your morale, by reminding you out where they have failed to answer waste no time getting to the heart of the that you have things to say.) your winning arguments. case. What follow are five basic tips for Second, stop and think. What is This is not the place for an extended how best to accomplish these objectives. your most compelling theme? About discussion of any issue, of course; save which of your opponent’s arguments that for the body of the brief. But if Reestablish Your Theory of the can you say: “If we lose that argument, your introduction helps the judges see Case we lose the case?” If the judges read that you have serious responses to the only the introduction to your brief, appellee’s main points, they will keep Most often, judges pick up the reply what things must they know? The an- reading. And if your case is compli-

Summer 2006 Certworthy 29 cated and it takes two or three pages to ply brief, they will likely have a good really needs to decide the case in your fa- do that, do not worry—these are the idea of what your case is about and vor. most important pages of your brief. where the difficult issues lie. Thus, they Indeed, the most effective reply briefs are unlikely to have patience for a brief in some sense function as stand-alone Weave The Equities Into Your that does not jump right to the heart of documents—if the judges read nothing Arguments the matter. This is all the more true in else (and some judges read the reply brief these days of heavy dockets, when appel- first), they should understand from your Rarely are cases won based on bare emo- late judges must decide many more reply brief why you win the case. Mak- tional appeals to judges that “justice” re- cases—including many more cases with- ing the extra effort to re-establish your quires a certain outcome. At the same out the benefit of oral argument—than theory of the case, to refine your intro- time, however, the most effective advo- in years past. duction, to highlight the equities, to cates remind judges why the rule of law Readability is therefore at a premium make the brief as readable as possible, that they are advocating is sensible and in the reply brief. Keep refining and par- and to avoid extra clutter can make the fair. ing down your arguments until they are difference between a reply brief that Reply briefs are no exception. To con- as short, clear, and simple as possible. leaves the judges feeling unsatisfied and tinue the example above, suppose the Even more than in your opening brief, one in which your last word really plain language of a contract is on your avoid long sentences and complicated counts. side, but the other side’s brief appeals to substructures. If two different words fairness in hopes of persuading the court each convey the same point, choose the to depart from that language. Do not simpler one. Use uncomplicated head- simply cede this ground to your oppo- ings. Avoid clutter in all of its forms. nent. Explain why it is important for Keep footnotes to a minimum. Ideally, parties to be able to rely on the plain your reply brief should be a page turner. meaning of their agreements. Or perhaps the central issue is the Less Is More meaning of an ambiguous precedent. If the other side’s reading of the precedent Finally, remember that the reply brief is would create practical problems for com- not the time to make lengthy arguments panies attempting to comply with the responding to the appellee’s every sub- law, explain why the precedent should be theme. If you planned your opening read to avoid such problems. Show the brief carefully, you will have already ad- judges that common sense is on your dressed the shortcomings in the lower side. court’s reasoning and the principal cases Remember, judges will decide your on which your opponent relies. If an ar- case based on their best sense of what the gument has the potential to sway a vote, law requires. But they are human, and then by all means respond to it. But they may be influenced at some level by some points are borderline ridiculous, the equities. When they put down your and the judges will know it. Do not dig- reply brief, you want them to believe not nify such points with a response, and cer- only that the law is on your side, but tainly not a lengthy one. Doing so will that applying the law impartially will only appear defensive at a time when you lead to a just result. want be on offense. Ultimately, the courts have the last Readability, Readability, Readability. word in any appeal. But the reply brief is the last written word from any party, By the time your panel picks up the re- and it should give the court everything it

30 Certworthy Summer 2006 ADVOCATE’S FORUM The Dynamics of Appellate Oral Argument

Justice Margaret M. Grignon (Ret.)1 scrutinize the briefs before oral argu- place. At the outset, you are faced Reed Smith LLP ment and, consequently, are far more with multiple judges with different Los Angeles, California familiar with the legal issues than a perspectives and varied levels of un- [email protected] trial judge may be. And most discon- derstanding. Some or all of these Zareh Jaltorossian certingly for appellate lawyers, appel- judges may ask questions. Often, a Reed Smith LLP late judges will often be fully question is only a question—a judge Los Angeles, California cognizant of and wish to discuss the may be seeking information, clarifica- [email protected] weaknesses of your case. So how tion or an explanation. Sometimes, should appellate lawyers deal with however, the reason a question is be- Most appellate attorneys, and even these problems unique to appellate ing asked is at least as important as most litigators, have probably read at advocacy? the question itself, if not more. For least one treatise, article or other sec- To answer this question, it is neces- example, a judge may pose a question ondary material offering advice on the sary to consider the communicative hoping that your response will per- dos and don’ts of oral advocacy. These dynamics of the appellate oral argu- suade one of his or her more skeptical materials counsel thorough prepara- ment. To get a complete picture of colleagues, or that it will defeat an ar- tion (“know your case,” “learn the the dynamics, however, we must first gument made by your opposing coun- judges’ backgrounds,” “update your set the stage. Before oral argument, sel. Perhaps a judge may throw you a research”) and provide excellent tips the appellate judges have been pre- “softball” question, hoping for an an- for handling oneself during oral argu- sented with and have at least partially swer that bolsters that judge’s opin- ment (“listen carefully to and answer digested the parties’ briefs. One or ion. On occasion, two judges may the judge(s)’ questions,” “don’t intro- more research attorneys have thor- utilize oral argument to continue duce new facts,” “remind the court oughly perused the briefs, read the their pre-argument disagreements about the standard of review if it fa- record, conducted independent re- about the case. vors your client’s case,” “don’t dispar- search, and prepared written bench You, of course, have entered the age the trial judge, counsel, or the memoranda or draft opinions. These picture unaware of what went on be- court”). written memoranda or opinions may hind the scenes and can only guess at To be sure, the guidance offered by have been circulated among the panel, what may be motivating a question. these materials is valuable, and all at- pre-argument conferences may have For this reason, your first task as an torneys should heed it. Nevertheless, been held, written comments may advocate is to listen carefully to the most of this advice is applicable to have been exchanged, and informal judges’ questions and comments and both a trial and an appellate court set- discussions may have taken place. As take careful note of their demeanor ting. Appellate advocacy, however, in- a result, one or more of the judges and body language with an eye to de- volves at least two unique aspects that may have arrived at a tentative opin- termining a question’s meaning and do not exist in trial courts. First, ap- ion, the judges may be divided in purpose. Although discerning the pellate argument takes place before their opinions, or there may be vary- underlying purpose of a question may more than one judge. An appellate ing degrees of differences of opinion as be akin sometimes to reading tea panel will consist of at least three to the result or the reasoning. leaves, by doing so, you can focus judges, and sometimes more than As the appellate advocate, you enter your argument to deal with the con- three. Second, appellate judges have the arena of the oral argument only cerns of the judges who may be unfa- the time and resources to carefully after all of these events have taken vorably inclined toward your case.

Summer 2006 Certworthy 31 And you can take advantage of the to persuade their brethren or reinforce you believe you cannot win with help that is being proffered by a judge their own positions, judges often will those weaknesses. It is therefore bet- disposed to your position. In this take the opportunity to aggressively ter to deal with the problems head manner, you have at least a chance of probe the weaknesses of a party’s case. on. persuading the skeptical judges to Contrary to what some appellate at- These are just some illustrations of your viewpoint. torneys might think, the tendency of the intricacies of the communicative More problematical is the situation appellate judges to focus on the Achil- dynamics of appellate advocacy. But where two judges use oral argument les Heel of a case is not motivated by although the process may be complex, to attack each other’s position. some morbid desire to torment coun- it offers the skilled oral advocate a When this happens, you may find sel during oral argument, but rather great deal of room to maneuver. You yourself in a situation where you will by a desire to reach the right and just should always keep in mind that, ulti- not yet have had an opportunity to result. This is particularly so when mately, you are there to persuade the address one judge’s question when the dealing with issues of first impression court, particularly to do the persuad- second judge interposes a that will be resolved in published ing that your briefs did not do. Al- countervailing one. As an advocate, opinions. though the number of judges, their you may feel pinned between two op- The subjection of your case to criti- familiarity with the problems of your posing forces. Under these circum- cal scrutiny can help or hurt you, de- case, and the behind-the-scenes hap- stances, you should take a deep pending on how you handle the penings may make things more diffi- breath, make every effort to hide your questions. Naturally, your task is to cult for you, they also inject a wild frustration, and politely and firmly at- honestly evaluate and identify the card into the oral argument that you tempt to regain control. It may be truly weaker aspects of your case and can exploit to increase you client’s useful to redirect the argument by ex- formulate arguments as to why your chances of success. plaining that you will answer Judge client should prevail despite the exist- 1 Editor’s note: Before joining Reed Smith in Smith’s question first and then you ence of those problems. Ignoring, 2005, Margaret Grignon spent 14 years as a will respond to Judge Jones’s question. dismissing or refusing to acknowledge justice on the California Court of Appeal, Or it may be possible to combine the the weaknesses in response to ques- Second District. two questions and answer them to- tions from the bench may give the gether. impression not only that you are ig- In addition to using oral argument noring the judges’ concerns, but that

The degree of civilization in a society can be judged by entering its prisons. Fyodor Dostoevsky (1821 - 1881)

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. Anatole France (1844 - 1924)

32 Certworthy Summer 2006 BROWSING THE BOOKSHELF Sandra Day O’Connor: How the First Woman on the Supreme Court Became its Most Influential Member, by Joan M. Biskupic

Reviewed by Beth Ermatinger the ranch to attend grade school and sons she learned about mobilizing a Hanan high school in El Paso, because her judicial campaign would later pay big Gass Weber Mullins LLC parents felt the city offered her a bet- dividends. [email protected] ter education. At age 16, O’Connor After completing five years in the started undergraduate work at state senate, including several as ma- Getting a glimpse into the mind and Stanford. At 19, she entered law jority leader, O’Connor then ran for maneuvers of a retired justice may not school at Stanford, where she met and superior court judge. Following four help you prepare for a case before the briefly dated William Rehnquist. She years on the trial bench, she was ap- currently-constituted Supreme Court. finished in the top ten percent of her pointed to the Arizona Court of Ap- But then again, it just might. class as a law review editor. As school peals in 1979. It was there that Through detailed interviews with Jus- ended, she married a classmate and Ronald Reagan found her two years tice Sandra Day O’Connor’s friends, Army lawyer John O’Connor. The later, when Justice Potter Stewart an- relatives and fellow justices, compre- couple eventually had three sons, but nounced his retirement and Reagan hensive historical research, and sound for most of the boys’ youth, aimed to make good on his promise to legal commentary, author and lawyer O’Connor was a working mom. appoint a woman to the Supreme Joan Biskupic has chronicled the pro- Biskupic’s book traces O’Connor’s Court. fessional life and legacy of Justice early years as a prosecutor, a commu- The overall premise of the book O’Connor. O’Connor’s experience in nity activist, and an Arizona legislator. casts O’Connor as negotiator and all three branches of government, plus In those roles, O’Connor was already bridge builder, tracing her shift over some input from the court of public a consensus builder. time from the right side of the judicial opinion, ultimately combined to In 1971, while O’Connor was serv- spectrum to more or less center, from mold her views, her written decisions, ing in the state senate, President a polite joiner to a firm leader. and almost a quarter-century of Su- Reagan nominated her old friend and Once O’Connor arrives at the preme Court precedent. former Arizona lawyer, William Court, the book remains chronologi- As with most biographies, the book Rehnquist, to the Supreme Court seat cal, with a topical overlay. Several is presented in chronological order, being vacated by Justice Harlan. On chapters address evolving rulings on beginning with O’Connor’s roots on her own initiative, O’Connor took up abortion issues, and O’Connor’s inner the family ranch in Arizona. Her the charge to garner support for tension between strong support of early life on the ranch was fairly iso- Rehnquist’s nomination. She made a states’ rights versus an unwillingness lated, but both parents were forceful, few political gaffes at this first effort in to reverse years of reliance on Roe v. determined personalities who pushed national affairs, as Biskupic recounts, Wade. In chapter 16, Open Files, the Sandra to find her own strengths. but wound up getting herself noticed topic is release of personal files by in- The oldest of three children, she left by Republican higher-ups. The les- dividual justices. O’Connor and

Summer 2006 Certworthy 33 Rehnquist advocated strict limits on reasoning as well as the detail of par- approaches (see the growing list of release of a justice’s papers, in large ticular paragraphs and footnotes. books by former Supreme Court part to protect the writings (and free- Votes switched at the last minute, clerks), in Biskupic’s view O’Connor dom) of other active colleagues. For causing other switches. Such dynam- was the most effective at pre-release example, the book describes how the ics may explain why some opinions persuasion. O’Connor was able to Washington Post got the scoop before come out much later after argument urge particular viewpoints by alluding any other media outlet on the Library than others. Such dynamics may also to her own experiences as a legislator of Congress’ release of Thurgood explain the voting on a few cases. and as a state-court judge. She could Marshall’s papers. The Post explored Biskupic describes an instance where adeptly put the other justices “in the those documents in a four-part series, Justice Rehnquist sent a note to Jus- shoes” of the decision-makers whose and the release created quite a furor at tice Marshall and the rest of the work they reviewed. the Court. Author Biskupic was half Court regarding a majority opinion The book also shares a few stories of the Post duo that first obtained the circulated by Marshall: “If this were as to the personalities and bents of a Marshall papers, thus deepening her November rather than June, I would number of current justices with perspective on O’Connor’s relation- prepare a masterfully crafted dissent- whom O’Connor served. For in- ship with the brethren. ing opinion exposing the fallacies of stance, Justice Scalia, now 70 years Biskupic’s book not only accurately your . . . discussion. Since it is June, old, and Justice Ginsburg, 73, had recounts the facts behind high profile however, I join.” The decision was served together on the District of Co- cases, but by meticulously describing unanimous. lumbia Circuit for four years, and O’Connor’s approach to her work, According to Biskupic’s research, with their spouses have shared a num- sheds light on Supreme Court deci- Justice O’Connor made a habit of ber of New Year’s Eves together. sion-making generally. showing her draft opinions to certain Ginsburg bases their friendship par- June is a difficult month at the justices, for a variety of purposes. ticularly on Scalia’s “engaging wit.” Court, as it may well be at many state Sometimes she showed a draft to so- This book is heavily annotated, supreme courts; it is the month when licit interest; sometimes she shared a with over 40 pages of footnotes and all opinions are to be completed. draft with the specific hope that the bibliographic references. Its thor- Early in O’Connor’s tenure, most of other justice would be prepared to oughness probably disqualifies it as the Court’s easier cases would all be circulate a memo of approval once her “beach reading,” but it is a timely ret- decided by June, but the thorniest draft was distributed to the entire rospective on the career of a historic ones remained. Justices constantly panel. While it’s likely that other jus- figure whose legacy can’t yet be fully negotiated over broad lines of legal tices have adopted similar persuasive quantified.

Words, as is well known, are the great foes of reality. Joseph Conrad (1857-1924)

34 Certworthy Summer 2006 SUBCOMMITTEE REPORT

Amicus Publications Next Big Project. Do you have an idea for an article you’d like to write, and Since its inception two years ago, the It’s been a while since our committee are you willing to invest substantial Appellate Advocacy Amicus Subcom- has tackled a big project. In 2004, we time in your idea? Do you have an mittee continues to grow. Thanks in produced A Defense Lawyer’s Guide to idea for an overall project, and are you part to the extremely successful Ap- Appellate Practice, a major undertaking willing to take a leading role in mak- pellate Advocacy Seminar in Phoenix comprising 24 chapters and almost ing your vision a reality? If so, please in March 2006, the subcommittee 400 pages, covering every aspect of tell me about your idea, preferably by now has more that 35 members, with appellate practice. In the same year, e-mail to [email protected]. a vast array of appellate experience. we produced a fine collection of sub- The time for planning will be au- Our members’ court admissions cover stantive articles for the April 2004 is- tumn 2006; the time for carrying out 27 state courts, the District of Co- sue of For the Defense. In 2005, we the plan will be 2007. Our commit- lumbia, the United States Supreme took a breather. It’s now time to turn tee has abundant energy, legal knowl- Court and all Circuit Courts of Ap- our attention to our Next Big Project. edge, and writing talent. With a peal. Subcommittee members remain One possibility is another collection commitment from about a dozen willing to work with DRI’s Amicus of six to eight substantive articles to members, we can put together some- Committee to identify important be published in For the Defense. An- thing to be proud of. cases and select authors ready to assist other possibility is a contribution to Raymond P. Ward in preparing amicus briefs so that DRI’s Defense Library Series—per- Adams and Reese LLP DRI’s voice is heard in important ap- haps focused on some specific aspect New Orleans, Louisiana peals throughout the country. of appellate-related defense practice. [email protected] Nancy Ciampa, Chair Yet another possibility is a web-based Carlton Fields, P.A. project in conjunction with our Web Miami, Florida Page subcommittee. [email protected] I’d like to hear your ideas for our

[N]othing is more hurtful to a perfect knowledge of the law than reading it. Henry Fielding (1707-1754)

Summer 2006 Certworthy 35