How Appealing



Thursday, May 7, 2015

“Racial slur can create hostile work environment, 4th Circuit rules”: Reuters has a report that begins, “A U.S. appeals court Thursday revived a discrimination suit against a Maryland hotel by a black former waitress who says a coworker called her a ‘porch monkey,’ overruling a prior decision that said a single incident could not create a hostile work environment.”

You can access today’s en banc ruling of the U.S. Court of Appeals for the Fourth Circuit at this link.

Posted at 9:36 PM by Howard Bashman



The appellant’s FRAP 10 violation, in failing to include a transcript “necessary to evaluate” appellant’s principal claim, forfeits that claim on appeal even if the appellee has provided the court with the missing transcript as an attachment to its brief: The U.S. Court of Appeals for the Third Circuit today issued a ruling that some (myself included) might view as harsh.

In a footnote, the appellate court notes that it probably would have reached the same outcome even if the appellant had provided the necessary transcript, whose existence the appellant claims not to have been aware of (although the Third Circuit questioned the credibility of this assertion). Nevertheless, because the panel’s actual holding is that the appellant’s failure to provide the transcript forfeited the issue, in a subsequent case this holding could operate to the detriment of a party that in fact truly was unaware of the existence of the transcript.

It is no doubt ironic that the reason the three-judge panel knew that the appellant’s assertion that no transcript existed was false was because the appellee provided the transcript together with the appellee’s appellate brief. Thus, by the time the panel was considering the merits of the appeal, the transcript wasn’t missing from the record. It seems to elevate form over substance, and to constitute a particularly harsh sanction, to hold an issue waived when whatever error or scheme that the appellant was trying to perpetrate did not disadvantage the panel. Instead of deeming the issue forfeited, the panel could have simply ordered the appellant to reimburse the appellee for the costs of obtaining and providing the transcript to the court. And the panel could have imposed far more substantial sanctions if the panel believed that any effort to deceive the panel was intentional.

Even more surprising, perhaps, is that the three-judge panel apparently did not select this appeal for oral argument. Had the case been chosen for oral argument, presumably the panel could have further explored the issue of appellant’s perceived wrongdoing and delivered in-person a message that likely would not be forgotten for quite some time, if ever. Instead, the panel opted to announce a harsh forfeiture rule that may apply in cases where an appellant is truly ignorant of a transcript’s availability, even if that ignorance did not disadvantage the panel in any way because the transcript was provided to the court before the case was considered on the merits.

In the past, the Third Circuit had been hesitant to impose significant sanctions for relatively minor transgressions. Today’s ruling, from three of that court’s newer judges, may indicate that the Third Circuit’s previous forgiving approach toward errors affecting form but not substance has come to an end.

Posted at 9:27 PM by Howard Bashman



“California Supreme Court revives generic Cipro lawsuit”: Maura Dolan of The Los Angeles Times has an article that begins, “The California Supreme Court on Thursday revived a class-action lawsuit that accuses Bayer AG of paying another drug company to delay introducing a generic version of a Bayer antibiotic.”

The Associated Press reports that “California court sides with consumers in generic drug fight.”

And Reuters reports that “Top California court revives Cipro antitrust case.”

You can access today’s ruling of the Supreme Court of California at this link.

Posted at 8:40 PM by Howard Bashman



“Free speech and judges: Keeping up appearances.” At the “Democracy in America” blog of The Economist, Steven Mazie has a post that begins, “Chief Justice John Roberts did something last week that he hasn’t done in three years: side with the liberal justices against his conservative friends on the Supreme Court.”

Posted at 5:08 PM by Howard Bashman



“Kentucky prohibits electioneering with 100 feet of polls after court strikes down 300-foot ban”: The Lexington Herald-Leader has this report.

Posted at 4:52 PM by Howard Bashman



Thanks to everyone who made my serving as the moderator of the “Reporting on the Courts” panel at the Fifth Circuit‘s Judicial Conference so much fun: Although the conference in New Orleans wrapped-up yesterday (concluding with a superstar panel — consisting of Paul D. Clement, Miguel A. Estrada, and Maureen E. Mahoney — discussing the art of handling cases pending before the U.S. Supreme Court), I am still making my way back home, currently in the midst of a stop-over until tomorrow in Atlanta, where my son is wrapping-up his second year of college.

I had a wonderful time visiting with so many judges and other attendees at the conference. This is not the place for me to name-drop, but you know who you are. I hope that we will keep in touch and see each other again soon. A special thanks to Fifth Circuit Judge Stephen A. Higginson, who invited me to serve as moderator of my panel (further details on my panel can be accessed via the final paragraph of this earlier post) and who himself served as moderator of the excellent SCOTUS practitioners’ panel detailed above.

Finally, thanks to all of those who acknowledged this blog’s thirteenth birthday yesterday. I have collected as many of those tributes as I could at this blog’s Twitter feed (scroll down).

Posted at 4:30 PM by Howard Bashman



“Sea Shepherd tries novel tack in appeal of piracy ruling”: Jeremy P. Jacobs of Greenwire has an article that begins, “The anti-whaling group Sea Shepherd has asked the Supreme Court to weigh a federal appeals court decision that characterized the activists’ campaign on the open seas against whale-killing Japanese researchers as piracy.”

You can view the organization’s cert. petition at this link.

Posted at 4:05 PM by Howard Bashman



“Massachusetts seeks to uphold ban on lying in political ads”: Reuters has a report that begins, “The state of Massachusetts on Thursday defended a 1946 law making it illegal to tell lies about candidates for office, after a woman facing possible jail time for a mailer about a Cape Cod candidate challenged the measure’s constitutionality.”

And in pre-argument coverage, today’s edition of The Boston Globe contains an article headlined “Mass. AG will defend law against lies in campaign material.”

You can access the briefs filed in the case via this link. And archived video of today’s oral argument should be available online via this link within the next week or so.

Posted at 3:42 PM by Howard Bashman



“The Management of Staff by Federal Court of Appeals Judges”: Law professor G. Mitu Gulati and Seventh Circuit Judge Richard A. Posner have posted this article online at SSRN.

The article’s abstract begins, “Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks.” According to the abstract, the article “is based on interviews, some in person, most by telephone, of more than 70 judges, chosen mainly at random and covering almost all of the thirteen federal courts of appeals.”

Posted at 3:18 PM by Howard Bashman



“Appeals court rules NSA phone dragnet is illegal”: The Los Angeles Times has this news update.

David Kravets of Ars Technica reports that “NSA phone dragnet is illegal, appeals court rules; The snooping program ‘exceeds the scope of what Congress has authorized.’

Josh Gerstein of Politico.com reports that “Appeals court rules that NSA phone surveillance program is illegal; The judges didn’t address whether the program violated the Constitution.”

And at “Just Security,” Marty Lederman has a post titled “Second Circuit rules that Section 215 does not authorize telephony bulk collection program,” while Steve Vladeck has a post titled “The Second Circuit and the Politics of Surveillance Reform.”

My earlier coverage of today’s Second Circuit ruling appears at this link.

Posted at 1:44 PM by Howard Bashman



“Confirmation vote on Pennsylvania jurist awaits ‘blue slip’ from Toomey”: Tracie Mauriello has this article in today’s edition of The Pittsburgh Post-Gazette.

Posted at 1:30 PM by Howard Bashman



“N.S.A. Phone Data Collection Illegal, Appeals Court Rules”: Charlie Savage of The New York Times has a news update that begins, “A federal appeals court in New York on Thursday ruled that the once-secret National Security Agency program that is systematically collecting Americans’ phone records in bulk is illegal.”

Ellen Nakashima of The Washington Post has a news update headlined “NSA program on phone records is illegal, court says.”

Brad Heath and Richard Wolf of USA Today report that “Appeals court strikes down government’s phone surveillance program.”

Michael Doyle of McClatchy Washington Bureau has a report headlined “Appeals court: NSA’s bulk collection of phone data illegal.”

Stephen Dinan of The Washington Times has a report headlined “NSA phone record collection is excessive: U.S. appeals court.”

Jonathan Stempel of Reuters reports that “U.S. NSA domestic phone spying program illegal: appeals court.”

The Associated Press has a report headlined “US appeals court: NSA phone record collection is excessive.”

And Bob Van Voris of Bloomberg News reports that “NSA’s Bulk Collection of Telephone Data Is Ruled Illegal; The court declines to rule on whether the practice violates the U.S Constitution.”

Circuit Judge Gerard E. Lynch wrote today’s ruling on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit. The panel consisted of Judge Lynch, Senior Circuit Judge Robert D. Sack (who joined the opinion of the court in full and also issued a concurring opinion), and U.S. District Judge Vernon S. Broderick (S.D.N.Y.). Judges Lynch and Broderick were appointed to their current seats by President Obama, while President Clinton appointed Judge Sack.

Posted at 11:25 AM by Howard Bashman