Claiborne Case Sparks Debate

In Claiborne v. U.S., case no. No. 06–5618 (June 4, 2007), the U.S. Supreme Court decided that the death of the petitioning criminal defendant rendered the case moot, and thus it vacated the judgment of the Eighth Circuit Court of Appeals that had reversed the district court’s downward adjustment from the federal sentencing guidelines.  The order itself tells you nothing about the case, so I suggest you start with Kimberly A. Kralowec at The Appellate Practitioner, who provides a brief rundown, from which it makes sense next to check this SCOTUSBlog post from before the ruling, describing efforts by a similarly situated petitioner to save the Claiborne case despite its technical mootness.

Columbia law professor Michael Dorf uses the Claiborne case as a starting point for a short Findlaw article on the wider subject of the role of the Supreme Court and tensions in justiciability doctrine, A Mootness Dismissal Illustrates the Supreme Court’s Split Personality: Is it a Constitutional Court or a Court of Error?  The article describes the underlying issue in Claiborne, examines whether other rules might have saved the Claiborne case, argues that the Supreme Court should not be subject to the same strict justiciability standards of lower federal courts, and compares the more liberal justiciability standards of courts of last resort in some other countries.  All this in a very readable 1900 or so words.


Ninth Circuit Panel Splits on Appellate Jurisdiction over Denial of FSIA Immunity Claimed via Res Judicata

The Ninth Circuit tackles a question of appellate jurisdiction in Gupta v. Thai Airways International, case no. 04-56389 (May 30, 2007).  The riddle — which the majority overlooks until it responds to the dissent — arises from the intersection of res judicata and the “collateral order” exception to the final judgment rule.

Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) .  The airline contended that an identical state court action brought by Gupta was res judicata on this issue because it was dismissed for lack of subject matter jurisdiction on FSIA immunity grounds.  It also argued the merits of FSIA immunity independently of its res judicata argument.  The district court rejected both arguments, finding that the prior ruling was not res judicata because it did not go to the merits of the dispute and that an exception to the FSIA applied.

On appeal, however, the airline did not assert the district court erred in its determination that an exception to the FSIA applied.  It relied exclusively on its res judicata argument. 

This turns out to be what splits the dissent from the majority on appeal.

The Ninth Circuit (and its sister circuits) have long recognized the appealability of an order denying a motion to dismiss based on FSIA immunity.  The majority classifies this as such an appeal, and thus asserts jurisdiction under this well-established exception to the final judgment rule.

The issue becomes thornier when you read the dissent, in which Judge Tashima argues that the court must examine “each claim or issue presented separately to determine their jurisdiction on interlocutory appeal.”  Conceding that he would find jurisdiction over the issue of whether the district court erred in finding that the FSIA exception applied, Judge Tashima contends that the res judicata issue is sufficiently distinct to take it outside the rule allowing review of orders denying FSIA immunity:

While it is true that our case law permits an immediate interlocutory appeal from an order denying a motion to dismiss based on foreign sovereign immunity, it is equally well-settled that the denial of a motion to dismiss based on res judicata grounds is not immediately appealable.


Although the cases discussing the collateral order doctrine sometimes loosely refer to interlocutory orders as being appealable, in fact, the cases actually analyze the specific claim or issue presented in determining the scope of their jurisdiction on an interlocutory appeal. And each claim presented must independently meet the requirements of the collateral order doctrine in order for it to be considered on interlocutory appeal. Appellate jurisdiction over one claim rejected in a district court order does not confer jurisdiction over all other claims rejected in the same order.(Citations omitted, emphasis in original.)

It seems clear that had the airline appealed on both grounds, Judge Tashima would assert jurisdiction over the merits of the FSIA immunity claim but not over the res judicata argument for the same claim of immunity. 

This is too much hair-splitting for the majority, which responds in a footnote to its statement that “It is from this order that Thai Airways is appealing.”  (Emphasis in original.) The majority contends that the dissent relies on a false premise that the FSIA immunity issue and res judicata issues are distinct.  It says that since the res judicata issue involves and is based solely on FSIA immunity, and is indeed determinative on the issue, the appeal falls within the rule of appealability under the collateral order doctrine for orders denying FSIA immunity.

Whatever the asserted ground of error, the majority has a point that in the end, the order appealed from determined that there was no FSIA immunity.  And that is all they needed to bring it within the well-established exception to the final judgment rule.

The Proper Action When an Appeal is Mooted

Offering a concise lesson on when a moot federal appeal should be dismissed and when it shouldn’t is the Ninth Circuit’s decision in NASD Dispute Resolution, Inc. v. Judicial Council of the State of California, case no. 02-17413 (May 30, 2007)

Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law.  The district court dismissed the suit on the ground that the defendants were state entities with Eleventh Amendment immunity from suit in federal court.

The plaintiffs appealed. In an intervening decision in another case the Ninth Circuit held that the California standards were preempted by federal securities law, and the California Supreme Court reached a similar holding in yet another case involving different parties.  These intervening cases rendered the present appeal moot.

The issue before the court was whether, in light of the appeal’s mootness, the court should vacate the trial court’s dismissal of the case or instead let the trial court judgment stand and dismiss the appeal.  The state defendants did not want the trial court ruling disturbed, since it held that the Judicial Council and its members were immune from suit in federal court. 

The usual action in the event of a moot appeal is to vacate the decision below with a direction to dismiss, which is what the court does here.  Generally, only when mootness is the result of conduct by the party seeking appellate relief — such as by settling on appeal — should the court dismiss and leave the judgment below intact.  This sufficiently serves the public interest by protecting the district court decision against “a refined form of collateral attack” — an appellant settling on appeal so as to have the judgment below vacated.

The Judicial Council urged that equity and public policy weighed against vacatur because NASD and NYSE were unlikely to sue the Council or its members again, and the public has an interest in preserving judicial precedent.  The court spends a short time on the value of district court opinions as “precedent” and the effect of a “vacated on other grounds” history for a district court case. Since the district court decision will remain in the Federal Supplement and is useful only as persuasive authority anyway, the public interest in preservation of precedent does not require that the ruling remain intact.

This last point is especially sensible and relevant to the discussion in this earlier post regarding the utility of citing district court decisions.

Child Pornographer Remains Anonymous In Ninth Circuit Ruling – and Limits His Restitution Exposure by Exploiting Developing World Victims (Updated)

Appellate Law & Practice and Decision of the Day both report on what the latter calls a “remarkable decision” today from the Ninth Circuit.  Both write about the fact that in United States v. Doe, case no. 05-50474 (May 29, 2007), the Ninth Circuit allows the defendant — a child pornographer who pleaded guilty to molesting and photographing young teen boys on his trips outside the U.S. — to remain anonymous in the disposition of the appeal.

Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says).  Decision of the Day is appalled that the circuit judges would allow this, especially in light of their reputations:

Shame on the prosecutors and the courts for allowing a criminal defendant to remain anonymous, especially in light of the fact that this was his fourth time getting caught with kiddie porn. Neither the district judge – GWB appointee Klausner – nor the three appellate panelists – Reagan appointees O’Scannlain and Hall and GWB appointee Callahan – have a reputation for being generous with criminal defendants.

“S. COTUS” at Appellate Law & Practice takes a slightly different view —

Perhaps these appointees wanted to make things easier for a prosecutor, or the so-called “victims.”  In reality, there are a lot of sealed proceedings out there, but usually both sides agree to it, and I suspect that these judges were well-aware of this, and didn’t want to rock the boat.

The so called victims?  I’ll get to that later.  Back to anonymity for now.

The court notes that allowing the use of a pseudonym is reserved for “exceptional cases where necessary to protect a person from injury or harassment.”  But the judges never tell us how that standard applies in this case.  In fact, the whole issue of anonymity rates no more than a footnote in the opinion.  The defendant made a motion for the disposition to be filed using a pseudonym, and instead of explaining why this was necessary, the court merely continues the sealed nature of the proceedings begun in the district court.  Unless they could not discuss this without imposing the harm they sought to avoid through use of the synonym, why did they avoid this discussion?  The docket shows no separate order on the motion.

The defendant’s anonymity seems especially inappropriate in light one of his assertions of error: that the victim statements in the pre-sentencing report were anonymous!  He loses on this issue, though.

While he also loses on the issue of whether he should have to pay the restitution ordered by the district court, it’s somewhat shocking to see that the restitution the court affirms amounts to $16,475 total for eight victims – about $2,060 per victim.  Amazingly, this includes two years of monthly counseling, vocational training (to make up for some of the victims having to leave school), and a management fee to the organization coordinating the services.  For traveling abroad to an unnamed “developing world” country, Doe gets bargain basement restitution costs — then complains about them.

Doe is sentenced to 204 months.  As for “S. COTUS’s” reference to “so-called ‘victims’ ” — read the excerpt from the plea agreement, then see if you agree.

UPDATE (5/30/07): “S. COTUS” at Appellate Law and Practice has updated his post to explain why he used the term “so-called ‘victims.’ ” He concedes that the children in this case were genuine victims. He makes a decent case for attributing it to carelssness, and I take him at his word.

Ninth Circuit Takes Appellate Jurisdiction over Pretrial Stay Orders

A whole lot of insurance companies sue a whole lot of doctors and clinics. The insurers allege that the defendants gave away cash and vacation packages to lure patients into undergoing unnecessary procedures, for which defendants billed the plaintiff insurers, who paid millions on the claims. Several individual defendants are also facing criminal prosecution and move to stay the civil proceedings because discovery would implicate their Fifth Amendment rights. The clinics say they can’t put on an adequate defense if the action is stayed only as to the individuals facing prosecution, so they, too, ask for a stay of the proceedings. The district court obliges the stay requests — apparently in multiple orders, as the plaintiff insurers take three appeals and one writ petition from the same underlying case. Blue Cross and Blue Shield v. Rubin, case no. 05-56261 (May 25, 2007).

The Ninth Circuit holds it has appellate jurisdiction notwithstanding the lack of a final judgment because the stay orders, all of which are indefinite in duration and could last for years, place the plaintiff insurers “effectively out of court.” In doing so, the Ninth joins a majority of other circuits finding appellate jurisdiction in such circumstances, and explains that the indefinite delay poses threats of “denying justice by delay,” lost evidence and faded witness recollections, and irreparable harm to the business plaintiffs, including the risk of going out of business in the interim.

A second lesson for counsel lies in the decision on the merits. The court neither affirms nor reverses, but vacates the stay orders and remands for further consideration by the district court because there is an inadequate record to review the court’s exercise of discretion.

Effective Cert Petitions in the Absence of a Direct Circuit Split

SCOTUSblog has an update to its earlier post on drafting effective cert petitions in the absence of a direct circuit split. The post links to the most recent podcast and provides all the information you need to get up to date on SCOTUSblog’s coverage of this topic. It also provides instructions for subscribing to SCOTUSblog’s podcasts, several of which have covered other aspects of cert petition drafting.

FRCP Amendments Approved and Transmitted to Congress

The Supreme Court approved amendments to the Federal Rules of Civil Procedure and transmitted those amendments to Congress on April 30.  They will take effect December 1, 2007 unless Congress legislates their rejection, modification, or deferral. 

Rules 1-86 were “restyled” — revised with the intent to make them easier to read and understand without substantively changing them.  For example, rule 59, governing new trial motions, is amended so subsection (a) is changed from a single, lengthy paragraph into paragraphs (a)(1)(A), (a)(1)(B), and (a)(2).  Not only easier on the eyes, but much easier to comprehend.

The amendments contain substantive changes as well, but none directly relating to the rules regarding entry of judgment and post-trial practice.

Helpful links to the advisory committee reports, including a side-by-side run-down of the style changes between old and proposed new rules, are provided here and here courtesy of Professors Counsellor and Ryan at Baylor Law School (blogging at Civil Procedure Prof Blog), and Professor Spencer at the University of Richmond School of Law (blogging at Federal Civil Practice Bulletin), respectively..