The Ninth Circuit Blog of Appeals | by Appellate Attorney Greg May

Jul 24, 2012

What does this Ninth Circuit case — to which neither Tom Cruise nor Katie Holmes is a party — have to do with their divorce?

OK, I’ll admit, it looks like I’m trolling for extra traffic with the title of this post, but I’m really just trying to pique the interest of my regular readers (if I still have any after such a long posting hiatus).

The answer to the question is that the case of Headley v. Church of Scientology, case nos. 10-56266 and 10-56278 (9th Cir. July 24, 2012) gives a rather detailed look into the workings of the Sea Organization (or “Sea Org”), the evangelical wing of the Church of Scientology. If some reports I’ve seen are to be believed, Sea Org was a source of conflict that caused the divorce of Cruise and Holmes.

I’ve always heard, fairly or not, that the church was pretty secretive about most things, including its doctrine, organization, and functioning. This decision is the most I’ve ever learned about the church in one place. The opinion is full of the details on church doctrine and rules for Sea Org, including what plaintiffs alleged were coercive methods of keeping people in the organization. You may find it fascinating.

The reason for the lesson from the court is that the appellants are two former ministers who were members of Sea Org, worked at the main camp, and later sued the church, alleging that they were forced to work in violation of the Trafficking Victims Protection Act:

Enacted largely “to combat” the “transnational crime” of “trafficking in persons,” 22 U.S.C. § 7101(a), (b)(24), the Act makes it a crime “knowingly” to “provide[ ] or obtain[ ] the labor or services of a person by any one of, or by any combination of, the following means”:

(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;

(2) by means of serious harm or threats of serious harm to that person or another person; [or]

***

(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint . . . .

So, you’re thinking things must have been pretty bad, right? Well, let’s start with this: the plaintiffs ”each worked more than 100 hours a week, while the Church paid their living expenses and provided them each with a $50 weekly stipend.” OK, that’s pretty tough, but they’re volunteers, right? You bet they’re volunteers! For a really, really long time: at the time of joining, “each Sea Org member makes a symbolic one-billion-year commitment to serve the Church.”

But plaintiffs lose. The Court of Appeals affirms the summary judgment for the church, holding that despite a few isolated instances of force, there was insufficient evidence that force or threats of force were used to keep plaintiffs working, because they were ultimately free to leave the order. Although the district court rested its ruling on part on the ministerial exception, ”derived from the First Amendment’s religion clauses,” which “provides religious employers with an affirmative defense to a claim by a minister when adjudicating the claim would infringe an employer’s religious liberty or would improperly entangle a court in religious matters,” the Court of Appeals finds that because the case is resolved by the lack of evidence and the language of the statute, it does not need to reach the question of whether the ministerial exception applies.

56278

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posted in Constitutional Law, First Amendment, Labor and Employment

Jul 19, 2012

Bad conduct by trial counsel not only dooms the client, but makes it hard on the appellate lawyer

You are not going to like the defendant — or its trial lawyer — in Hester v. Vision Airlines, case nos. 11-15646 and 11-15761 (9th Cir., July 18, 2012). Discovery gamesmanship not only got them sever sanctions, but also made it very tough on the appellate lawyer.

First, what happened in the trial court.

The defendant is a private airline flying supplies through war zones in Afghanistan and Iraq, subcontractor of the company with the main government contract, which provides a hazard pay component that is paid to the contractor but us required by the contract to be paid to the crews, without deduction, no matter how many layers of subcontractors there are. The defendant allegedly stops paying the hazard pay through to the crews, fires all the crews who are aware of their right to hazard pay, hires new crews who don’t know about the hazard pay provisions in the main contract, then keeps millions in hazard pay for itself. So, the crews sue in a class action.

If ever a defendant wanted to make itself look like it was guilty, this one was it. It played games in discovery for two years, produced only partial documents, and did not produce them even when ordered to do so. As a sanction for discovery misconduct, the district judge struck the defendant’s answer and entered a default judgment, then held a jury trial on the issue of damages only.

The defendant appealed, and the appellate lawyer found himself in a bit of a jam. Review of a sanctions order like this (entering default) is for abuse of discretion, so the appellate lawyer basically had to convince the Court of Appeals that no reasonable judge would have done this or that the court abused its discretion by failing to consider some factor. The trial court’s order, however, thoroughly explained why it entered the order and why it did not believe lesser sanctions would have worked. The court then considered the five factors considered on review of an order entering default judgment as a sanction:

(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the other party; (4) the public policy favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions.

Again, the court’s order demonstrated that it took all these things into account. In particular, the Court of Appeals notes three factors it is required to assess in determining whether the trial court adequately considered lesser sanctions:

(1) whether the district court “explicitly discussed the alternative of lesser sanctions and explained why it would be inappropriate,” (2) whether the district court had “implemented lesser sanctions before ordering the case dismissed,” and (3) whether the district court had “warned the offending party of the possibility of dismissal.” [Citation.]

Factors (1) and (3) were unambiguously present in this case, so the appellate lawyer was left to argue regarding factor (2) that the trial court could not strike the defendant’s answer because it had never imposed any lesser sanction for the discovery misconduct.

As you might expect, that did not get him very far. As the court pointed out, these three factors are not prerequisites: “The fact that a court does not implement a lesser sanction before striking an answer is not dispositive. It is just one factor.” In any given situation, any one of these factors could be sufficient in itself. Here, the conduct was so egregious, and the court’s warnings so clear, the defendant never really stood much of a chance on appeal.

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posted in Sanctions

Jun 20, 2012

The limitations of appeals from post-judgment orders (and why you should call an attorney right away if you want to appeal)

In my weekly networking meeting, I frequently remind my colleagues that if they know someone interested in appealing a case, they should contact me immediately because the time to appeal can be very short. Miss the deadline, and you’re “up the creek without a paddle.”

Occasionally, an appellant tries to recover from his failure to file a timely appeal from a judgment by using an appeal from a post-judgment order as a vehicle to challenge the merits of the underlying judgment. Your instinct should tell you that is not going to work. The defendant/appellant in Garamendi v. Henin, case no. 10-57000 (9th Cir., June 19, 2012) learned that the hard way. He never appealed from the two $10.8 million default judgments against him. Plaintiffs tried to enforce the judgments in defendant’s home country of France. Eventually — nearly four years after the judgments were entered — the French court denied enforcement because of ambiguities in the judgment. About six months later, and more than five years after entry of the judgments, the plaintiffs moved for a correction or clarification of the judgments under Rule 60 of the Federal Rules of Civil Procedure, contending that the requested clarifications would overcome the objections of the French court without amounting to a substantive change in the judgments. The district court granted the motion.

The order granting the motion is appealable, so defendant could argue that the district court was wrong to grant the motion. But the defendant took it a step further, arguing setoff, release, and the nature and amount of liability. Because none of those principles were placed in issue by the motion to correct the judgment, the defendant had no right to challenge them in an appeal from the post-judgment order.

As the Court outlined it:

Because the corrected judgments contain the same substantive provisions as the original judgments, [defendant] had to challenge their content at the time of the original judgments or not at all. Any attempt to appeal the original default judgments would now be untimely: “If the district court properly acted under Rule 60(a), then the correction did not start a new appeal time running.” Harman v. Harper, 7 F.3d 1455, 1457(9th Cir. 1993) (citing cases from the First, Second, Fifth, and Eighth Circuits); see also Rivera v. PNS Stores, Inc., 647 F.3d188, 201 n.55 (5th Cir. 2011) (“A district court’s entry of a corrected judgment under Rule 60(a) is itself an appealable order, but the scope of the appeal is limited to the court’s ‘disposition of the Rule 60(a) motion and [does] not bring up for review the underlying judgment.’ ” (alteration in original)(quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2871 (2d ed. 2011)).

That seems pretty clear-cut. But with $21.6 million at stake, and knowing that the Ninth Circuit might have to borrow from other circuits to refuse his arguments, I’m not too surprised that the defendant tried it.

UPDATE: What are the odds that on the same day, the California Court of Appeal would publish a decision in which the appellant likewise tried to attack the underlying judgment through the appeal of a post-judgment order entered years later? Whatever they are, it just happened.

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posted in Appellate Jurisdiction, Scope of Review, Waiver of Issues

Nov 17, 2011

Prop 8 proponents’ appeal survives

The status of the appeal from the judgment striking down California’s Proposition 8, the initiative banning same-sex marriage, has been in doubt since last January, when the Ninth Circuit certified to the California Supreme Court the question of whether the Prop 8 proponents had standing to defend the initiative where the California attorney general refused to do so. More specifically, the question certified was:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, theofficial proponents of an initiative measure possesseither a particularized interest in the initiative’s validity or the authority to assert the State’s interestin the initiative’s validity, which would enable themto defend the constitutionality of the initiative uponits adoption or appeal a judgment invalidating the initiative, when the public officials charged with thatduty refuse to do so.

The California Supreme Court’s much-anticipated opinion was filed this morning. The court unanimously found that the Prop 8 proponents have standing to defend the law:

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

My initial impressions are simply to note the differences in the opinion and in the concurring opinion of Justice Kennard. Whereas the unanimous opinion goes out of its way to emphasize that the question is one to be answered without regard to the particular law to be defended by its proponents, Justice Kennard’s concurring opinion give a detailed history of California litigation over the same-sex marriage issue.

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posted in Standing

Mar 9, 2010

Debate over nomination of Goodwin Liu

The Blog of Legal Times has a post, “Debate Heats Up Over 9th Circuit Nominee,” regarding the debate over President Obama’s nomination of Cal Berkeley law professor Goodwin Liu to the Ninth Circuit Court of Appeals. The plentiful links in the post will help bring up to speed anyone who is late to the debate.

Whatever Liu’s jurisprudential philosophy, three things virtually guaranteed controversy over his nomination: (1) Liu is President Obama’s first nomination to the court; (2) the Ninth Circuit is a lightning rod for criticism from the right side of the political spectrum (more so, I think, than the Fourth Circuit is for the left side of the political spectrum), and (3) did I mention Liu’s a professor at Cal Berkeley?

H/T: How Appealing.

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posted in Judges, Media and the Law
Tags: Barack Obama, Goodwin Liu, University of California Berkeley

Feb 2, 2010

Real legal research on your iPhone (and a terrific bargain for some Ninth Circuit lawyers)

: Image via CrunchBase

If you are an iPhone-using lawyer, you really should subscribe to the iPhoneJD blog, where New Orleans attorney Jeff Richardson keeps you updated not only on specific legal uses for the iPhone, but on all things iPhone.

Yesterday, he reviewed Fastcase, an iPhone app for legal research, and the opening paragraph could hardly have been more glowing:

I will start this review with what probably belongs in my conclusion: Every single lawyer using an iPhone should download the Fastcase app. Moreover, the availability of the free Fastcase app is a compelling reason for any attorney not using an iPhone to purchase one today. This app is that useful.

The rest of his review is very thorough.

The application itself is free, but the two subscription plans offered have an annual cost of $700 and $1000. While that’s a heck of a lot less expensive than commercial services like Westlaw and Lexis, Fastcase will hardly replace either. It will be most useful for quick lookups on the go.

A lucky few won’t have to conduct any cost-benefit analysis. Seventeen bar associations (so far) offer Fastcase to their members free. That includes several statewide bar associations. Unfortunately, California is not among them, but a couple of Ninth Circuit states are: Arizona, Nevada and Oregon. [CORRECTION: I was confusing the desktop and iPhone versions. The subscription fee is for the desktop version of Fastcase only. The iPhone version is free for everyone.]

UPDATE (2/2/10): On second thought, this application might be good for a lot more than just the occasional quick lookup. On an iPad, it will be a lot more readable. Hmmm, up until know, I was pretty sure I wasn’t going to buy an iPad.

(Cross-posted at The California Blog of Appeal.)

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posted in Legal Research, Legal Technologr
Tags: iphone, Legal Research, mobile technology

Jan 26, 2010

Don’t get too wrapped up in the trial court’s theory

Parties and their counsel need to be wary of focusing too much on the trial court’s rationale for the decision on appeal. But Greg, you’re saying to yourself, isn’t that what the appeal is all about?

In a word: No. In the abstract, the ultimate issue in any appeal is whether the trial court’s decision was the correct result or not, not why it was or wasn’t the correct result. Thus, the Court of Appeals can affirm a judgment on any ground justified by the record. This makes it possible in some cases for the Court of Appeals to affirm on a ground different from the trial court’s faulty basis.

More, the appellate court may resort to alternate grounds even without first determining that the trial court erred in its stated grounds. Alternate grounds for affirmance may jump out from the record so strongly that the appellate court will latch onto them without any analysis of the trial court’s reasoning, now rendered beside the point.

The recent decision in Hells Canyon Preservation Council v. U. S. Forest Service, case no. 0735456 (9th Cir. Feb. 25, 2010) provides an excellent example of the Court of Appeals’ reliance on alternate grounds. Plaintiff in that case alleged three claims arising from the Forest Service’s alleged mismanagement of federal lands, and the trial court granted summary judgment to the forest service on all three claims on the ground that they were filed beyond the statute of limitations (i.e., were untimely). The Ninth Circuit Court of Appeals affirms as to all three claims, but relies on the statute of limitations for only one of them.

On one of the other counts, the Ninth holds that the judgment was correct because of the alternate ground the Forest Service had argued in the trial court: that the plaintiff lacked standing to sue because it lacked any injury. In fact, the Forest Service didn’t even try to defend the untimeliness rationale of the trial court on that claim and argued only the standing issue. It undoubtedly made that decision because the standing issue seemed so strong in its favor, and that proved to be correct, with the court stating, “We do not think that the question of plaintiffs’ standing to challenge the filing of the 1978 map is a difficult one.”

The Ninth’s resolution of the third claim is an even greater illustration of the appellate court’s power to affirm on alternate grounds. The basis on which it affirms with respect to the third claim — plaintiff’s failure to state a claim because it failed to allege any failure of the Forest Service to take a required action — was apparently never even raised in the trial court. (At least, the court makes no mention of it.)

Hells Canyon is a reminder to parties to look outside the rationale of the trial court when evaluating their prospects on appeal. A prospective appellant should not just evaluate the viability of his argument in terms of the correctness of the trial court’s reasoning, nor should an appellee who is trying to decide whether settlement makes more sense than fighting the appeal. Each needs to make sure that he examines the record as a whole for other — and perhaps stronger — support for the adverse judgment, and take into account the possibility that the appellate court will affirm on that alternate ground.

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posted in Scope of Review
Tags: appellate arguments, decision to appeal, Scope of Review

Appellate Attorney Greg May on Practice and Legal Developments in the Nation's Largest Federal Circuit

What does this Ninth Circuit case — to which neither Tom Cruise nor Katie Holmes is a party — have to do with their divorce?

Bad conduct by trial counsel not only dooms the client, but makes it hard on the appellate lawyer

The limitations of appeals from post-judgment orders (and why you should call an attorney right away if you want to appeal)

Prop 8 proponents’ appeal survives

Debate over nomination of Goodwin Liu

Real legal research on your iPhone (and a terrific bargain for some Ninth Circuit lawyers)

Don’t get too wrapped up in the trial court’s theory