How Appealing

Friday, April 8, 2005

On this date in “How Appealing” history: On April 8, 2003, I noted here that an Ohio appellate court had issued an opinion expressly invoking (twice, no less) a standard of appellate review appropriate for the dead of winter — “December novo.” I also had a post titled “Another fan of the ‘judge song’” about someone who now is a judge on the U.S. Court of Appeals for the Fifth Circuit.

One year ago today, I linked here to an article about a federal district judge in Texas whose regard for the death penalty apparently pales in comparison to her regard for tounge vibrators. And with respect to that day’s big news story involving Justice Antonin Scalia, I had posts titled “What kind of publicity would you prefer Justices of the U.S. Supreme Court to generate?” and “Freedom of the press advocacy group protests federal marshal’s seizure of recordings.”

Posted at 11:20 PM by Howard Bashman

Complex patent case in which Seventh Circuit Judge Richard A. Posner served as trial judge featured an unusual en banc ruling today from the U.S. Court of Appeals for the Federal Circuit: Earlier today, I received this quite helpful email from a longtime reader:

You may find this appellate procedure (in an already fascinating and important case) interesting.

Today the Federal Circuit did something I’ve never seen a court of appeals do before: they effectively voted en banc to remove a particular holding from a panel opinion, with no analysis of that holding beyond the fact of vacatur.

Briefly, in 2003, Seventh Circuit Judge Richard Posner (sitting as trial judge by designation) dismissed a patent infringement case involving the antidepressant Paxil® on the ground that the patent covering Paxil® was not infringed. In 2004, a panel of the Federal Circuit affirmed the judgment, on the alternate ground that the patent was invalid due to public use of the invention more than a year before the patent was applied for. Had the use been “experimental use,” it would not have invalidated the patent, but the panel ruled that the use was not experimental.

Today, the Federal Circuit en banc issued an order that granted the parties’ petition for rehearing en banc “for the limited purpose of vacating the panel’s original opinion addressing the issue of experimental use” and “remanded to the panel for further proceedings,” without any analysis.

Also today, the panel issued a new opinion, “pursuant to an order issued by this court en banc,” deleting its earlier public use/experimental use holding and replacing it with a new holding that the patent was invalid for a completely different reason.

The way I read it, all the en banc order indicates on the record is that the en banc court does not think the “experimental use” holding should be binding law, and simply wants the panel to try again. (We know this must be true because otherwise the panel itself would simply have withdrawn its previous opinion and resubmitted a new one.) This procedure seems to me to be highly irregular. Usually not even the Supreme Court does this. It is akin to an unpublished reversal en banc. Perhaps some federal courts have been in the habit of doing that, but I’ve never noticed.

The same-day issuance of the panel’s new opinion — clearly in connivance with the rest of the court — makes matters even more bizarre. One judge attached a dissent to the en banc order agreeing with the remand “with regard to the issue of experimental use” but arguing that the en banc court should not have “preserved” another of the panel’s holdings. But that holding is not in the panel’s original opinion — it’s in the new opinion! Clearly, behind the scenes, the en banc court was in possession of the panel’s replacement opinion before it issued, but only Judge Newman gives that away.

Does that mean that the en banc panel has already considered the new holding? Judge Newman’s dissent certainly did. Now that the losing party has finally seen that new holding, can it still petition for rehearing of it en banc? Surely it has to consider whether the cost of briefing would be worthwhile, given that it knows for a fact that the en banc court already saw the new holding and (albeit without benefit of any ex ante briefing) “preserved” it. Appellate counsel faces an interesting choice.

Elsewhere, the blog “Patently-O: Patent Law Blog” covers today’s developments in a post titled “Federal Circuit Makes En Banc Decision in Paxil Case: Patent Inherently Anticipated.”

Posted at 10:40 PM by Howard Bashman

“Rudolph to plead guilty; Justice Department says accused bomber will get life sentences with no parole”: The Atlanta Journal-Constitution provides this news update. The U.S. Department of Justice’s press release can be viewed at this link.

Posted at 10:22 PM by Howard Bashman

“FBI official hopes Hale sentence is warning”: The Chicago Tribune today contains an article that begins:

The FBI boss in Chicago said Thursday he hopes white supremacist Matthew Hale’s 40-year prison sentence was a stern warning that threats to the judiciary won’t be tolerated.

But just a day after Hale’s sentencing for soliciting the murder of a federal judge, one white supremacist Web site raised a question about whether “to string up” the judge who imposed the maximum prison term on Hale.

Below was listed the judge’s work address and phone number.

Told of the Web site posting, Robert Grant, the FBI’s special agent in charge in Chicago, said he considered it more than a thinly veiled threat to U.S. District Judge James T. Moody, who sentenced Hale on Wednesday.

The Peoria Journal Star reports today that “Hale hopes to serve time in Pekin prison; White supremacist sentenced to 40 years for solicitation of murder.”

And The Telegraph (UK) reports that “Race hate leader jailed for plotting to murder judge.”

Posted at 8:40 PM by Howard Bashman

“Battle Of The Branches”: CBS News legal analyst Andrew Cohen has an essay today in which he writes, “But more than anything, in my dreams, I want to see the loons in Congress try to push for the ‘mass impeachment’ of federal judges.”

Posted at 8:15 PM by Howard Bashman

“Conn. Killer Determined to Be Executed”: The Associated Press reports here that “Serial killer Michael Ross, testifying at a hearing aimed at weighing his mental competency, told a judge Friday that he still wants to be executed next month.”

Posted at 5:44 PM by Howard Bashman

“Rudolph to Plead Guilty to ’96 Olympics Bombing”: The Washington Post provides a news update that begins, “Eric Rudolph, the alleged antiabortion bomber who eluded capture for five years in the Carolina woods, has agreed to plead guilty to four bombings including the explosion at the 1996 Olympics in Atlanta, the Justice Department said today.” According to the article, the deal will allow Rudolph to avoid the death penalty.

Posted at 5:38 PM by Howard Bashman

U.S. Court of Appeals for the Second Circuit rules that Booker does not apply to cases on collateral review where the defendant’s conviction was final as of January 12, 2005, the date Booker issued: You can access today’s ruling at this link.

Posted at 5:28 PM by Howard Bashman

BREAKING NEWS — Judicial Council of the Second Circuit adjudicates judicial misconduct complaints against Second Circuit Judge Guido Calabresi arising out of comments comparing President Bush to Hitler and Mussolini: You can access the Judicial Council’s memorandum and order issued today at this link. I have posted a back-up copy of the decision at this link.

Back in June 2004, I provided extensive coverage of this matter, beginning with this post from June 21, 2004 in which I provided a pass-through link to Josh Gerstein’s article published that day in The New York Sun under the headline “Audience Gasps as Judge Likens Election of Bush to Rise of Il Duce; 2nd Circuit’s Calabresi Also Compares Bush’s Rise to That of Hitler.”

Later relevant posts from June 2004 can be accessed here; here; here; here; here; here; and here.

Update: Law Professor Rick Hasen has a post titled “Disagreeing with Bush v. Gore Does Not Show Judicial Incompetence.”

Posted at 5:00 PM by Howard Bashman

“Smart bombs: 2 high-powered Chicago thinkers (a Nobel Prize winner and a rabble-rousing federal judge) rattle the blogosphere — one intellectual grenade at a time.” This article about “The Becker-Posner Blog” appeared yesterday in The Chicago Tribune.

Posted at 3:40 PM by Howard Bashman

“Court Denies Smucker’s PB&J Pastry Patent”: The Associated Press reports here that “There’s only so far you can go in trying to patent the ever-popular peanut butter and jelly sandwich. On Friday, the U.S. Court of Appeals for the Federal Circuit rejected an effort by J.M. Smucker Co. to patent its process for making pocket-size peanut butter and jelly pastries called ‘Uncrustables.'” The ruling does not yet appear available via the Federal Circuit’s web site.

According to this post at “Patently-O: Patent Law Blog,” “the court issued a per curium Rule 36 decision without opinion.”

Update: At “Crescat Sententia,” Raffi Melkonian has a post in which he observes that “if this document represents patent applications in general, IP practice must be one of the most (unintentionally) funny legal practices available” and that “the wider point is that the mere existence of the Uncrustable is something of a human tragedy.”

Posted at 2:15 PM by Howard Bashman

Today’s rulings of note from the U.S. Court of Appeals for the Ninth Circuit: 1. Ninth Circuit Judge Stephen Reinhardt, on behalf of a divided three-judge panel in a state habeas appeal, today issued a majority opinion that begins:

At a murder trial in which the central question is whether the defendant acted in self-defense, are a defendant’s constitutional rights violated when spectators are permitted to wear buttons depicting the “victim”? We conclude that under clearly established Supreme Court law such a practice interferes with the right to a fair trial by an impartial jury free from outside influences.

2. A separate decision issued today begins:

Jonathan Joseph Lincoln (Lincoln) was convicted of knowingly and willfully threatening the life of the President of the United States in violation of 18 U.S.C. sec. 871. The charge arose from statements made in a letter dated September 24, 2001 that Lincoln attempted to mail while incarcerated at the Oregon State Penitentiary. The district court acknowledged that the letter itself was not a “true threat,” but determined that a true threat blossomed from the “context” in which the statements were made. Because we conclude that the contextual background did not transform Lincoln’s letter into a threat, we reverse Lincoln’s conviction.

3. And last but not least, Circuit Judge Alex Kozinski today has a quite interesting opinion that begins, “We probe the mysteries of demanding a jury trial under Fed. R. Civ. P. 38(b).”

Posted at 1:00 PM by Howard Bashman

“Newspaper faces paying $18 million verdict; Pensacola News Journal won’t face punitive damages, though”: The Associated Press reports here that “A judge has dismissed a claim for punitive damages but upheld an $18.28 million jury verdict against the Pensacola News Journal for actual harm to a businessman by casting him in a ‘false light.'”

Today’s AP report states that the plaintiff “alleged the newspaper’s use of the phrase ‘shot and killed’ in a story falsely implied he had murdered his wife although the article two sentences later noted authorities determined it had been a hunting accident.” The final paragraph of The AP’s article states, “Bruce Rogow, a lawyer for [the plaintiff], said it was enough to prove the impression left by the article was false even if its content was true.”

Posted at 10:02 AM by Howard Bashman

“Nuclear Freeze”: The Washington Post today contains an editorial that begins, “With both parties furiously mobilizing their bases, the war over judicial nominations seems headed for an apocalyptic showdown.”

The Nation yesterday posted online an editorial entitled “Legislative Bomb.”

FindLaw columnist John Dean has an essay entitled “Senate Republicans’ Bid to Destroy the Filibuster Option, And Push Through Ultraconservative Federal Judges: It Seems Likely the ‘Nuclear Option’ Actually Will Be Used.”

Online at, David Limbaugh has an essay entitled “Invoking the ‘nuclear option’ — there is no other option.”

And Tuesday in The Providence Journal, Law Professor Carl W. Tobias had an op-ed entitled “Don’t repeat mistakes in judge appointment.”

Posted at 7:33 AM by Howard Bashman

“Martinez rapped for Schiavo memo; Critics say the freshman senator ultimately is responsible for his staff’s actions”: This article appears today in The Orlando Sentinel, along with an editorial entitled “Martinez’s failure: Blame ultimately rests with him for tawdry Schiavo memo.”

The St. Petersburgh Times today contains an article headlined “New gaffe, old Martinez defense; Sen. Mel Martinez turns to familiar words to explain his office’s role in an unsigned memo on Terri Schiavo.”

The Miami Herald reports that “Schiavo memo trips up rookie senator; Republicans worry that Mel Martinez’s involvement in a politically charged memo about the Terri Schiavo case could tarnish the freshman U.S. senator from Florida.”

The Washington Times reports that “Freewheeling aides have shamed Martinez before.”

The Palm Beach Post contains an article headlined “Martinez critics: Shift now ‘pattern.’

The Des Moines Register reports that “Harkin cleared of faking GOP memo on Schiavo; The disputed letter was created by an aide for a Florida representative.”

The Morning Call of Allentown, Pennsylvania today contains an editorial entitled “GOP Schiavo ‘talking point memo’ is lesson in cynicism and paper flow.”

And online at, Eric Boehlert has an essay entitled “‘Citizen journalists’? Try partisan hacks; Right-wing bloggers shrieked that the GOP Schiavo memo was a “liberal media” fraud. Now that they’ve been proven wrong, are they apologizing? Why, no!

Posted at 7:15 AM by Howard Bashman

“Justice O’Connor warns against harsh political rhetoric”: Today in The Baltimore Sun, Gail Gibson has an article that begins, “Supreme Court Justice Sandra Day O’Connor said harsh political rhetoric could spur violence against the nation’s judges, offering a veiled response last night to some national figures who in the past week have blasted the courts for failing to intervene in the case of a severely brain-damaged Florida woman.” Justice O’Connor’s lecture yesterday launched the newly created Roxana Cannon Arsht Center for Ethics and Leadership at Goucher College.

In related news coverage and commentary, The Houston Chronicle reports today that “DeLay says judges have ‘overstepped’ authority; By video, he tells a religious group that Congress should impose its constitutional clout.”

The Toledo Blade today contains an editorial entitled “Assault on the judiciary.”

The Daily Times of Delaware County, Pennsylvania contains an editorial entitled “Republicans waging war against judges.”

Dan K. Thomasson, former editor of the Scripps Howard News Service, has an essay entitled “GOP threat to courts will backfire; Congressional Republicans should read their history before attacking the judiciary.”

In The Pioneer Press of St. Paul, Minnesota, Glenda Holste has an essay entitled “Don’t let Senate conservatives wage war on an independent judiciary.”

In The Cavalier Daily, Cari Lynn Hennessy has an essay entitled “Contempt of court.”

And yesterday in The New York Times, columnist Maureen Dowd had an op-ed entitled “The Passion of the Tom.”

Posted at 7:04 AM by Howard Bashman

“Court refuses to halt military extensions; Soldier had sued after having his discharge postponed”: Bob Egelko has this article today in The San Francisco Chronicle.

Posted at 6:58 AM by Howard Bashman

“Shearman Sues in Bid to Smoke Out Critic; Law firm objects to message posted on craigslist Web site”: provides this report.

Posted at 6:55 AM by Howard Bashman

“Expedited review for Barnes; Pa. Supreme Court grants faster appeal of ruling on move to Phila.”: This article, in which I am quoted, appears today in The Philadelphia Inquirer. Links to the relevant underlying pleadings can be accessed via this earlier post.

Posted at 6:45 AM by Howard Bashman