Death: A Strong Defense

The Widget:

Court: Appeals Court
Judge: Grasso
Subject: Premises liability
Tone: Ipse dixit
Importance: 4.0

So it turns out that a failsafe way to avoid liability for a dangerous condition on your property is to die before it injures someone. That’s the Appeals Court’s holding in Sullivan v. Rich, Mass. App. Ct. No. 07-P-109.

The plaintiff fell into a hole and injured himself. “The hole, which was covered with a piece of wood and topped with dirt and leaves, was indistinguishable from the surrounding area. It contained a buried fifty-five gallon drum.” With that in mind, a fitting New Year’s resolution might be to watch your step. Or is that too callous? Perhaps the better resolution is do a better job burying stuff in your yard. Even better than that: just don't bury stuff in your yard to begin with.

Yesterday In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya
Subject: Drug trafficking
Tone: Unconvinced
Importance: 3.2

Today’s additions, from United States v. Jimenez, 1st Cir. No. 06-1533, to our ever-growing lexicon:

IMMUREMENT
ALLOCUTION
PINNACLE (non-metaphoric iteration)
ANIMADVERSION
SOCKDOLAGER
TIMEOUS
PERIPETEIA

SJC: You Can't Win If You Don't Play (Thank Goodness . . .)

The Widget:

Court: SJC
Judge: Greany
Subject: Employment discrimination
Tone: Unremarkable
Importance: 4.2

Does an employer discriminate against someone it doesn't hire who missed an application deadline and, in fact, didn’t even apply for a job? In Nguyen v. William Joiner Ctr. for the Study of War and Social Consequences, SJC No. 09848, the SJC says no.

That a case like this one can make its way all the way to any high court in the Union (let alone get filed in the first place) buttresses the argument of those who say there are too many lawyers and too many lawsuits.

UPDATE: Spelling of the Joiner Center is corrected above. William Joiner is apparently not related to Wally Joyner, which is too bad for both of them. But this raises another question: what does a "Center for the Study of War and Social Consequences" study? War's social consequences? Or war, in general, and social consequences, in general? Consequences of what? The Center's website doesn't provide much assistance: "It provides educational and other services to veterans, conducts research and makes policy recommendations on issues relating to veterans, and encourages teaching and scholarship on the Vietnam War and social consequences."

Barney Alert: Did The SJC Just Send A Signal That It’s About To Get Easier To Dismiss Civil Suits?

The Widget:

Court: SJC
Judge: Greany
Subject: Motions to dismiss
Tone: Hedging
Importance: ?

Our first Barney Alert in a while. Last term the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) and civil litigators scratched their heads. The Court said that the old standard for determining whether or not to dismiss a complaint under Rule 12 (“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”) leads to too many groundless lawsuits gaining too much traction. The Court suggested replacing the old standard with something different: “whether facts alleged in the complaint raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Now there are two distinct schools of thought on whether this is a meaningful change. In Eigerman v. Putnam Investments, Inc., No. SJC 07-9854, the SJC today spends a moment considering the issue and punts. “In a future case,” Justice Greany says, “we may consider whether we should adopt the Bell Atlantic standard for application to complaints that are the subject of a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6).” Two things to take away from this equivocation: (1) the SJC thinks the Twombly case did lower the bar that must be hurdled before a case can be dismissed under Rule 12; and (2) the SJC did not reject the Twombly standard out of hand as being totally preposterous. Expect plaintiffs and defendants to grapple clumsily (and expensively) with this issue until the SJC resolves it.

Things You Don't Want The First Circuit Saying About You On The Record

The Widget:

Court: First Circuit
Judge: Stahl
Subject: ERISA*
Tone: Justifiably ornery
Importance: 3.9

Credibility is precious in this line of work. So the First Circuit’s statement on page 13 in Gillis v. SPX Corp. Individual Acct. Retirement Plan, No. 07-1777, has to make you cringe just a little bit:

[The appellant’s ] argument on appeal that the district court should have somehow made this comparison itself, without [the appellant] providing the court with the relevant argumentation and data, betrays a misapprehension of our adversarial system and the burden he carried as a plaintiff opposing summary judgment before the district court.

The “comparison” referenced here is the difference between the retirement payout the plaintiff claimed he was owed and what he actually received. But that’s not so significant. What’s significant is that the First Circuit accuses the appellant’s counsel of misunderstanding a bedrock rule of civil procedure and, indeed, the entire system of American civil litigation itself. As Instapundit would say, “Ouch.”

*For the uninitiated (thank your lucky stars), the “Employee Retirement Income Security Act”.

Suffolk County Sheriff Weirdness Update

In response to this post, we get a comment:

When the Sheriff's Department terminated the lease, it didn't do so because of the missing auditor's certification. It terminated for a much more pedestrian reason: the landlord had not completed construction work required under the lease within the time permitted. The landlord had a creative lawyer who argued, the first time the case went up on appeal in 2004, that in light of a statute applicable only to Boston and Suffolk County contracts, the time for construction had not begun to run until the mayor approved the contract, which, if true, would mean that the Sheriff's termination was untimely and improper.

Only on remand did the Sheriff's Department raise the statute's requirement of an auditor's certification. So the landlord was hoist by its own petard.

Fascinating. There are two responses. First, this happens all the time. Lawyers get cute ideas, employ them to get out of small messes, and create much bigger messes in the process. Exhibit A would be Vice President Cheney’s contention that he’s not a member of the executive branch. Cute. But when David Addington came up with it, did he realize that Larry King would ask his boss about it on national television?*

Second, the comment still doesn’t explain Auditor’s nonsensical certification: “APPROVED AS TO AVAILABILITY OF APPROPRIATION OR PURSUANT TO ARTICLE 12.2 OF THE GENERAL CONDITIONS IN THE AMOUNT OF $0.00.” What does that even mean? Any ideas?

*Aside: maybe he did and he didn't he care. This administration has really changed how we’re all going to think about political courage. There’s a difference, after all, between taking an unpopular and unbending stand in support of a demonstratively failed policy and taking an unpopular and unbending stand in support of a policy that history ultimately proves right. Cheney, Addington et al. still, admittedly, have a chance of being absolved by history. But it’s a very slim chance.

Now If Only This Post Could Have A Mike Rowe Voiceover . . .

The Widget:

Court: DC Circuit
Judge: Williams
Subject: The Bering Sea
Tone: Acronym-happy
Importance: 5.0

Anybody who watches Deadliest Catch knows that crab fishing in the Bering Sea is one of the more terrifying enterprises devised by the human species (“I have a GREAT idea: let’s wait until it gets really cold! Then we can take tiny boats out in twenty foot seas with a bunch of 900 pound steel cages that we’ll call crab pots flying around the deck! And do some fishing! Fun!”). So giving these guys less to worry about in the environmental regulation department, which is what the D.C. Circuit did today in Fishing Co. of Alaska, Inc. v. Gutierrez, No. 07-5153, probably evens things out in at least a cosmic sense.*

*The fish no doubt disagree. And they may have a valid point.

Great Moments In This Administration

The Widget:

Court: D.C. Circuit
Judge: Brown
Subject: Veterans
Tone: Unremarkable
Importance: 5.5

Given the way the Bush Administration has gone about its business, you have to wonder what they have against veterans. Today, in Cody v. Cox, D.C. Cir. No. 06-5253, the D.C. Circuit reversed a trial court’s dismissal of claims brought by residents of the Armed Forces Retirement Home – Washington, D.C. These veterans claimed that the ingrates – er, the Administration – violated their statutory right to high quality care when the Home’s chief operating officer imposed draconian cost saving measures. Their specific complaints related to “unavailability of physicians and dentists, neglect of patients, and delays in obtaining prescription drugs.” So not very important stuff.

In response, Congress passed a statute that gave the veterans additional detailed rights beyond their generalized entitlement to “high quality” healthcare. The ingrates’ – sorry, the Administration’s – response to that was to say to the trial court “OK! Awesome! Problem solved!” The trial court agreed. But today the D.C. Circuit, that bastion of left wing activism, said “Not so fast.”

What Is It About Dissents And Concession Speeches?

They’re just a lot more lyrical.

The Widget:

Court: First Circuit
Judge: Lipez (dissenting)
Subject: First Amendment
Tone: Thorough, elegant
Importance: 5.3

Judge Lipez writes a gorgeous dissent (starting at page 63) in Sullivan v. City of Augusta, First Circuit No. 06-1177. The issue is whether a parade fee without an indigency exception violates the First Amendment. The majority says no and Judge Lipez disagrees.

One of the issues to consider here is whether there are reasonable alternatives to street marches for people who can’t afford the parade permit. Lipez says no, and he focuses for a bit on the internet. “Although the internet has provided new for a for communicating with large numbers of people,” Lipez writes at page 83, “websites, blogs and other publicly accessible online opportunities are not substitutes for face-to-face experiences . . . .”

We sort of know this already, but it’s an awfully good point. Example: Remember when the Deaniacs thought they could win a presidential election on the internet? Well, they learned that you need more than orange stocking caps and righteousness to finish better than third in the Iowa caucuses. This may not have anything to do with anything. But it's worth noting!

South End Biolab: Flawed Review Process

The Widget:

Court: SJC
Judge: Spina
Subject: South End Biolab
Tone: Academic
Importance: 2.3

Big news! In Allen v. Boston Redevelopment Auth., SJC No. 09960, The SJC today holds that the Secretary of Environmental Affairs blew it in the review of BU’s proposed South End biomedical research complex.

Or is it big news? Probably not. The Secretary had already agreed with the trial court’s determination and directed preparation of a supplemental environmental impact report. So not a lot was decided today, as Justice Cordy appropriately notes in his concurrence.

Justice Spina tries to address the mootness problem in his footnote 20. His point is that the issue is important and the Court has papers on it. But this is the second opinion in less than a week that’s involved a high court making an unnecessary pronouncement on a public policy question. Which isn’t really their job.

Suffolk County Sheriff’s Office Weirdness

The Widget:

Court: Appeals Court
Judge: Mills
Subject: Municipal law
Tone: Befuddlement-inducing
Importance: 1.2

Okay. We’re about to get hypertechnical and then confused. Be warned.

The Suffolk County Sheriff tried to enter into a ten year, $7 million lease for office space. In order for the lease to be enforceable, the City of Boston (which controls the Suffolk County Sheriff’s office) needed to have its auditor “certif[y] thereon that an appropriation is available therefor or has cited thereon the statute under authority of which the contract is being executed without an appropriation.”

This lease incorporated the following imprimatur from the auditor’s office: “APPROVED AS TO AVAILABILITY OF APPROPRIATION OR PURSUANT TO ARTICLE 12.2 OF THE GENERAL CONDITIONS IN THE AMOUNT OF $0.00.”

Pardon? $0.00?

And so, of course, the Sheriff broke the lease and the landlord sued. And the landlord, of course, lost. Because, as the Appeals Court held today in Bradston Assocs., LLC v. Cabral, Mass. Appeals. Ct. No. 06-P-1844, the lease was not enforceable to begin with. Why didn’t the landlord catch this? Why did the auditor include an utterly inscrutable certification on the contract? It almost looks like the city tried to fool somebody who was willing to be fooled.

This may just be what happens when turnout is fourteen percent.

Today In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya
Subject: “The overarching themes are chicanery and greed”
Tone: Bemused disappointment
Importance: 4.2

Why does he get his very own feature on this blog? Because he writes paragraphs like this:

The circus impresario, P.T. Barnum, is famously reputed to have said that “there’s a sucker born every minute.” That droll commentary on the human condition, whether or not fairly attributed to Barnum, appears to be as insightful in cyber-commerce as in face-to-face business transactions. This conclusion is borne out by the case at bar, which involves an Internet fraud.

And while the opinion in United States v. Deppe, No. 07-1048, adds just a single entry to the roster of Selya-esque words and expressions (COMPRISE MORE CRY THAN WOOL*) it provides another great moment in the history of the lawyer-client relationship:

When the district court held a sidebar conference to discuss its further [jury] instructions, the appellant injected himself into the conversation[**], bypassing his counsel and explaining how he thought the instruction should be worded. The court then asked defense counsel whether appellant’s objection was counsel’s objection. Counsel equivocated; he disavowed the objection but then enigmatically observed that, whatever he happened to think, “it’s Deppe’s life.”

Lawyers: we love our clients so much.

*Note, incredibly, that this definition references a judicial opinion from the First Circuit. Wonder who wrote that.

**What the heck he was doing there is anyone’s best guess.

Elementary

The Widget:

Court: U.S. Supreme Court
Judge: Souter
Subject: Guns, drugs
Tone: Subliminally persuasive
Importance: 5.5

A couple of years ago, the Supreme Court held that a defendant who traded his gun for drugs “used” the gun during the transaction for sentencing purposes. Today, in United States v. Watson, U.S. Supreme Court No. 06-571, the Court held that a defendant who traded his drugs for a gun had NOT “used” the gun during the transaction for sentencing purposes.

At first glance, these two decisions seem wacky and irreconcilable. But then you look at them for a couple of minutes, and kind of like this famous E.G. Boring thing, you start to see that they’re compatible.

Professor Reynolds says he sees no Second Amendment implications and then implies that there are Second Amendment implications.

That Sound You Heard This Morning Was The Plaintiffs’ Bar Celebrating*

The Widget:

Court: SJC
Judge: No majority opinion
Subject: Physicians’ duty to third parties
Tone: Multiple (see above)
Importance: 7.4

Get ready for a noticeable health insurance premium increase. And also crocodile tears from Republicans and the insurance industry.

In Coombes v. Florio, SJC No. 09869, The SJC announced today that third parties injured by patients suffering from side effects of medications prescribed by doctors can sue the doctors for failure to warn. There was no majority opinion, which is rare on this Court.

Chief Justice Marshall, not especially known for being all that pro-business or all that anti-plaintiff, dissented. She writes: “I respectfully disagree with the opinion of Justice Ireland (and the two Justices who join him) that would establish for the first time in this Commonwealth a physician's duty to prevent harm to nonpatients, and would do so in sweeping terms.”

This seems like an awfully big expansion of physician liability. In light of the fractured nature of the opinions and the importance of the health care industry in the Commonwealth, it would be surprising (and disappointing) if the legislature didn’t get involved with this.

*No, not because the sidewalks in Boston were extra icy. These lawyers are enterprising. Not evil.

Oh, Come On

The Widget:

Court: Rhode Island Supreme Court
Judge(s): Robinson (majority); Suttell (dissent)
Subject: Gay marriage
Tone(s): Mulish (majority); devastating (dissent)
Importance: 6.7

So here’s the Rhode Island Supreme Court’s decision in Chambers v. Oriston, No. 2006-340. The Court holds that a lesbian couple is not entitled to a divorce in Rhode Island because Rhode Island doesn’t recognize Massachusetts gay marriages.*

The heart of the opinion is the conclusion that since Webster’s defines marriage as “the state of being united to a person of the opposite sex”, the couple never was really married. In a footnote, the Court states “We are in no sense disregarding Judge Learned Hand’s advice that ‘courts should not make a fortress out of the dictionary.’” Which is a great point! Even though that’s really exactly what the Court is doing.

The dissenting judges, who begin their comprehensive response at page 17, make a lot of persuasive points. But the most persuasive is their invocation of Loughran v. Loughran, 292 U.S. 216 (1934). There, the Supreme Court said “Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the State where entered into, be recognized as valid by every other jurisdiction.”

An effective majority opinion would have somehow anticipated this argument and countered it. This majority opinion, however, does no such thing. But they do have Webster’s on their side. And that’s not nothing. It’s just next to nothing.

*Neither party actually raised this argument, leading to a fair inference that the Court went out of its way to hold as it did. Why would it do that?

Decisionism Is Also About Decisions That Haven’t Been Made Yet

The Widget:

Court: Appeals Court
Judge: TBD
Subject: “Good government and transparency”
Tone: TBD
Importance: 5.1

Massachusetts has an incredible open meeting law that basically prohibits public bodies from holding anything even approaching private deliberation sessions. A couple of years ago, some interested Boston citizens filed suit against the City Council for violating the open meeting law.

And they won. Which bothered then City Council President Michael Flaherty ''given that the Boston City Council stands for good government and transparency."*

So the City Council appealed and the Appeals Court heard the argument today. We’ll see what happens.

*Yes. That is an actual quote. From Michael Flaherty. Perhaps he's talking about the city council of some town named Boston in another state. Like Boston, Missouri. Maybe?

Barb Dissed

The Widget:

Court: SJC
Judge: ?
Subject: Professional, uh, responsibility(?)
Tone: Exhausted
Importance: 2.1

Andover’s most awesome attorney, Barbara Johnson, was disbarred today, in part because she’s the proprietor of an unusual website. Johnson ran for governor in 2002. Surprisingly, she lost. It would be mischaracterizing things to say that her star has fallen since then because, well, her star never really seems to have been all that high.

Fickle Justices Turn Backs On Gun-Toting Career Criminals

The Widget:

Court: U.S. Supreme Court
Judge: Ginsberg
Subject: Guns
Tone: Dubious
Importance: 6.7

A felon who possesses a firearm commits a federal crime. “Career criminals” get fifteen automatic years in federal prison if they’re caught with a gun.

In a unanimous opinion today, the U.S. Supreme Court refused to tinker with the underlying statute, which includes exceptions if the convictions have been expunged or civil rights have been “restored.” There were no separate concurrences by any of the conservative justices raising the possibility that this statutory scheme might cause problems under the Second Amendment. Can we read anything into this?

Well, if Profs. Volokh and Reynolds can waste our time touting a Pennsylvania Supreme Court decision that assumes without deciding (and thus says effectively nothing about whether) the Second Amendment protects individual gun owners, it’s at least worth noting that there are no Printz-type dissents in today’s decision.

Decisionism's One Punch

The Widget:

Court: SJC
Judge: Cordy
Subject: Appalling parenting
Tone: Revolted
Importance: 5.6

What does it really mean to be insane? We can all agree that a father who killed his ten month-old son after depriving him of solid food and mandating that the baby could only drink breast milk and water because he’d heard that proverbial message from God, we can all agree that this guy was just way out of his right mind. But can he be held criminally responsible for his actions?

The SJC decided today in Commonwealth v. Robidoux, No. SJC-09758 that he could, leading any sentient being to breathe a gargantuan sigh of relief. It did so in spite of the fact that insanity is a defense to first degree murder? What does it mean to be insane? As the Court states, “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality wrongfulness of his conduct or to conform his conduct to the requirements of law.” Mr. Robidoux’s actions after murdering his son sort of cut both ways here:

Robidoux placed Samuel's remains in a homemade casket and stored the casket in the bulkhead of a home belonging to one of his sisters for several months. On October 11, 1999, Robidoux [and some friends] went hiking in remote Baxter State Park in Maine, carrying a plywood casket that contained the remains of Samuel. After hiking for about seven hours, the group left the trail where they “felt comfortable.” There, 300 or 400 feet off the trail, they buried the caskets.*

Again (and either way): CRAZY, CRAZY MAN.

Decisionism’s college roommate often asked this hypothetical question: if you had one free punch that you could use on any human being without any repercussions, what would you do with it? Decisionism hereby reserves its one punch for Joel Robidoux.

*Yes, caskets. As in the plural of casket. Go read the decision if you want to learn more. Blecch.

Slightly Less Exciting Than The Night Before Christmas

If you’ve been wondering why Decisionism hasn’t been covering the U.S. Supreme Court, well, it’s because the Supremes have not yet released a single signed opinion during this term.* That all changes tomorrow (Tuesday) morning.

Bated breath, etc., etc.

*Tradition mandates that the Supreme Court begin its term on the first Monday of October. This year's term began on the earliest possible calendar date, October 1.

Karma Prevails

The Widget:

Court: First Circuit
Judge: Lynch
Subject: Condominiums
Tone: Understated exasperation
Importance: 3.7

The combination in Bourne v. Northwood Devo., LLC (in re Northwood Props., LLC), 1st Cir. No. 07-1146 – a condominium dispute involving pro se litigants – is just lethal.

The case involved a dispute between unit owners nominally opposed to continued development of their condominium. The condominium was in bankruptcy. Its only hope of moving forward was development of additional units. Though they had opposed the development before the bankruptcy, the plaintiffs were shameless enough to buy some claims of the development company’s creditors and propose a competing plan of reorganization that would have paid them off for consenting to the development and then given them control of the development company.

The opinion’s tone is civil. But the panel makes its feelings known when it takes the rather unusual step of granting the development company its costs (which, alas, is not the same thing as awarding the development company its attorneys’ fees).

But What About Bringing A Gun To The Town Meeting?

The Widget:

Court: First Circuit
Judge: Lynch
Subject: Town Meetings
Tone: Dismissive
Importance: 6.1

There was a scintillating sequence during last night’s controversial YouTube debate among the Republicans running for President. One of the questioners asked that the various candidates compare the size of their respective sexual organs with those of their competitors.

What? The question was about how many and what types of guns they owned? Either way, get ready for a lot more gun-related questions as the U.S. Supreme Court contemplates the Heller case. It’s the sexiest case of this term, the one in which the justices will determine whether people have an individual right to keep guns in their homes.

But even if the gun owners win the Heller case – and they almost definitely will – they should keep in mind that Courts have profoundly limited the manner in which we exercise even our most precious individual rights. Take today’s fascinating decision in Curnin v. Town of Egremont, 1st Cir. No. 07-1786, as Exhibit A.

The case involves the free speech of rights of non-residents at a classic New England town meeting. And guess what? Non-residents have no such rights. Why? Because “[n]on-legislators have no First Amendment right to address sessions of deliberating legislative bodies.” Really?

Really. And the First Circuit cites a Supreme Court decision supporting this view of the law. That’s a big limit on the exercise of First Amendment rights, no?

Some Second Amendment enthusiasts just might consider canceling those Stinger missile orders they placed after the Supreme Court agreed to review the Heller case. Unless, of course, the Supreme Court adopts a more expansive view of Second Amendment rights than First Amendment rights. Which would be shocking.

Yesterday In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya
Subject: Michael Bianco
Tone: Voracious
Importance: 6.0

We may as well acknowledge that he is taking over the world. Or at least this blog. And he gets a commendation for citing Marbury v. Madison in this decision, briefly adverted to early this morning:

UKASE
GORDIAN KNOT
PERSCRUTATION
SCUMBLED
REHEARSE*
SUCCOR
LIMN
MANTLE**
ARMAMENTARIUM
IMBRICATION
WITHAL
CHIAROSCURO

*Not the act of getting ready for a theatrical performance.
**Not the one in your living room.

Tonight in Bruce Selya

The Widget

Court: First Circuit
Judge: Selya
Subject: Asylum
Tone: Incredulous, Whitmanesque
Importance: 4.0

He is large, he contains multitudes:

ANENT
MULTITUDINOUS
MENDACIOUS
PLAINT
IMPORTUNINGS
PARRY[ING] [A] THRUST
SUPEREROGATORY

Update: Judge Selya also wrote the opinion in Aguilar v. United States Immigration and Customs Enforcement Division, First Circuit No. 07-1819. It is 48 pages long and actual news outlets are all over it.

Subprime Microeconomics

The Widget:

Court: First Circuit
Judge: Boudin
Subject: Subprime shenanigans
Tone: Clinical, disappointed
Importance: 4.2

The subprime loan/foreclosure/credit crisis is big news. Plenty of ink is spilled about Bear Stearns and Citi and all the trouble they’re having. You see decidedly less (but not nothing) about the communities where this is actually ruining folks’ actual lives. Places like Dorchester, Lawrence, Springfield.

A First Circuit decision today that is otherwise not terribly interesting gives you a notion of how it was done:

After purchasing a condemned or nearly uninhabitable property in Springfield, Massachusetts, usually at auction, the conspirators would arrange for a grossly inflated appraisal of the property; obtain a mortgage loan – based on fraudulent documentation and the fraudulent appraisal – for an unsophisticated buyer with low income, bad credit or both; then sell the property to the buyer and split the profits among the participants in the scheme (including the appraiser, the mortgage broker, the real estate lawyer, etc.).

Those who bought the homes were left with artificially inflated mortgages and usually defaulted; the banks were generally unable to recoup the full value of their loans because the homes were worth less than the false appraisals.

It should have been obvious that something strange was going on when the accident rehab offices on the Avenue started closing and turning into mortgage brokers.

Mmm – Davis Bacon

The Widget

Court: D.C. Circuit
Judge: Rogers
Subject: Government Contracts
Tone: Intermittently empathetic
Importance: 5.0

After a holiday that is so very much about food, it is fitting that we return with a case about Bacon! Okay, so it’s Davis Bacon. But still!

Davis Bacon is a federal statute governing what contractors must pay workers on federal construction projects. This case, Abhe & Svoboda, Inc. v. Chao, D.C. Cir. No. 06-5305, demonstrates that things get complicated very quickly.

The contractor on a bridge repainting project determined that it would pay its workers a mix of wages based on prevailing rates for painters, laborers, and carpenters. Union laborers and carpenters make less than painters. When the contractor submitted its bid, the Connecticut Department of Transportation, which was running bidding on the project, didn’t say that the contractor had to pay painters' wages. As the Court says, “the Department might have provided more explicit guidance.” But the Court still dismisses the contractor’s claim.

There’s a lot going on here that the opinion doesn’t quite address. This case isn’t an appeal of the Department of Labor’s determination that the contractor had to pay painters’ wages. Why the contractor didn’t directly appeal that determination is not clear. Also: how did the Department get interested in this contractor in the first place? Did the union representing Connecticut painters have anything to do with that?* If so, why did the Department focus on this particular contractor, given that the contractor had made its determination based on information it had received from other contractors?

More fundamentally: do we want labor unions controlling what people get paid on public construction projects? Because they do now. If you’re interested, there are good arguments for the status quo and against it (scroll for a bit and you’ll find it).

*You think?

Today In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya (!)
Subject: “The vexing problem of internet predation”
Tone: To catch a predator-esque
Importance: 4.3

Here are today’s gems (one of which is pretty ironic, actually), from United States v. Dwinells, No. 06-1709:

HISTRIONIC
WILL-O’-THE-WISP
ASSEVERATE
SUPEREROGATORY
MERETRICIOUS
ASSAY
PLENITUDE

Helpful Beavers Aid Needy Plaintiff

The Widget:

Court: SJC
Judge: Greaney
Subject: Zoning (and beavers)
Tone: Brackish
Importance: 3.6

The SJC’s decision in Jepson v. Zoning Board of Appeals, No. SJC-09914, will probably interest and confound the land use folks out there. Logically, the opinion feels like it skips some steps in exempting affordable housing developments that include commercial aspects from some zoning requirements for commercial uses.

What’s really significant about this decision, though, is the Court’s holding that one of the plaintiffs had standing to sue because some industrious beavers had built a dam in a wetland abutting his property. He prudently decided against suing the beavers. He sued the Town and the YMCA instead.

It's The Taxonomy, Stupid

Decisionism is all about product development and innovation. So it is with overflowing exuberation that Decisionism introduces a bell – or is it a whistle? – a feature, in any event, that will accompany each post, regardless of topic, target, or significance.

From here on out, you’ll notice an introductory widget that sets forth some basic information:

Court: As in, the panel whence said opinion emanates.
Judge: As in, the judge penning said opinion.
Topic: As in the area of law upon which said judge opines in said opinion.
Tone: As in, the manner in which said judge opines in said opinion.
Importance: As in, on a scale of 0.0 to 10.0, how important the case is to the future of the Republic. 10.0 is reserved for a decision either saving the Republic from imminent collapse or (as seems more likely these days) a decision that proximately causes said collapse. This category is, of course, entirely objective.

Seeing this taxonomy in action should provide an idea of how it will work. Let’s take Marbury v. Madison, for example:

Court: U.S. Supreme Court
Judge: Marshall (Not Thurgood)
Subject: Separation of Powers
Tone: Almoste Olde English
Importance: 9.9

Or Bush v. Gore:

Court: U.S. Supreme Court
Judge: ?
Subject: Equal Protection of Inanimate Objects
Tone: Unintelligible
Importance: 8.7

So let’s see how it works!

Christmas May Have Come Early For Employment Lawyers

Did the First Circuit just dramatically change the landscape of employment law? It may not have been trying to do so. But it says in footnote seven of Skirchak et al. v. Dynamics Research Corp., 1st Cir. No. 06-2136, that “Massachusetts law imposes a covenant of good faith and fair dealing in employment contracts.” And that sentence qualifies the previous one in which the First Circuit intimates that an employer may not “impose any term of employment in any manner it chooses.”

The status of the covenant of good faith and fair dealing in the at-will employment context is a bit more unsettled than all that. Some would argue that it doesn’t apply unless the employer has cheated the employee out of an already-earned bonus or commission. In the at-will context, with important exceptions for rights protected by statute, an employer most assuredly can impose any term of employment in any manner that it chooses. Because if the employee doesn’t like it, she has an easy way of elucidating her displeasure. She can quit and find another job.*

Now, though, the First Circuit seems to be saying that she also might be able to sue for breach of the covenant of good faith and fair dealing.

*As stated in an earlier post, the wisdom of this depends on where you sit.

Larry Craig So Wishes He’d Copped In Massachusetts

There is a statute that instructs judges considering plea bargains to make something along the lines of this statement:

"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."

In Commonwealth v. Rodriquez, Mass. App. Ct. No. 06-P-1512, the trial judge said the following:

"You need to understand that a finding of guilt on this offense may mean that you will be deported from the United States, that you may lose your permanent residence, your green card, and that you may lose your right to remain in the United States lawfully. Do you understand that?"

Think that passed muster with the appeals court? There probably wouldn’t be a blog post about it if it had. Tom Tancredo and Lou Dobbs just gave each other awkward high fives somewhere.

Barney Alert: Amending Fraud Claims

What do you call someone who’s geeky? In junior high we were Barneys. Now this was Southern California, which is generally batty in a variety of ways but especially when it comes to the lingo. Today gives us an opportunity to inaugurate another irregular feature: the Barney Alert. Barney Alerts are for those of us who are geeky about civil procedure.

United States ex rel. Rost v. Pfizer, Inc., No. 06-2627, addresses an oft-forgotten aspect of moving to dismiss a complaint early in a case under Rule 12(b)(6). Plaintiffs regularly forget to ask the Court to allow them to try to fix a complaint that does not state a claim. When the request is made, it will usually be granted. In this case, the trial court never ruled on the plaintiff’s request to amend a fraud claim that it ultimately decided to dismiss. The First Circuit vacated the dismissal and sent the case back to the trial court. The lesson: always ask and make the record clear that you’ve done so.

Housed

With the possible exception of Ron Paul and his supporters, there’s general agreement that law-abiding people are entitled to some form of shelter even if they can’t pay for it. There’s also agreement, though it’s less broad, that landlords shouldn't be able to discriminate against potential tenants who would be paying their rent with help from the government. Today, the SJC, in DiLiddo v. Oxford St. Realty, Inc., No. SJC-9962, determined that this right of tenants to be free from discrimination vastly restricts the ability of landlords to negotiate lease provisions with local housing authorities. In other words, if you’re going to be a lessor of residential property, you can’t reject a potential tenant because he or she will use a government voucher to pay rent, even if the governmental entity that will be paying that rent is insisting upon lease provisions with which you don’t agree.

Doesn’t it seem like there could be constitutional problems with this? The SJC seems to think so. Chief Justice Marshall specifically and prominently notes that “[t]he defendants make no challenge, constitutional or otherwise, to the validity of the statute . . . .” Did the defendants make a conscious decision to avoid Fifth Amendment arguments? Or did they just miss the issue? Or is there no issue?

Dog Of A Case

Honoring our visit to the Fourth Circuit, here’s a link to that Court’s decision in Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, 4th Cir. No. 06-2267. The defendant makes a dog toy that looks like Louis Vuitton handbags and calls it the “Chewy Vuiton.” There is no cause of action for bad spelling or infuriating punnery, so Louis Vuitton sued and claimed trademark infringement. And surprisingly, given the facts and the legal talent it employed, Louis Vuitton lost.

The Fourth Circuit affirmed the district court’s summary judgment determination that the dog toy did not impair the distinctiveness of Louis Vuitton’s trademark. This seems incorrect for a variety of profound reasons. Don’t be surprised if you see this case pop up again.

Dissent Alert

Dissents in the Appeals Court here in Massachusetts are infrequent and thus newsworthy. In Commonwealth v. Sanchez, Mass. App. Ct. No. 06-P-1197, the dissent espouses the appellant’s incredible argument that a judge’s instruction in a burglary case was deficient. Why? Because the trial judge instruction the jury that entering a house through an open window can satisfy the breaking and entering element of a burglary charge.

The rationale for the appellant’s argument was that disclosing this critical and not remotely self-evident point of law amounted to an endorsement of the prosecution’s version of events. The prosecution’s story was that the defendant entered an otherwise locked apartment through, you guessed it, an open window.

That a lawyer would be willing to make this argument and that an Appeals Court judge would find it compelling enough to write a dissent is further evidence that the public, in holding the profession in seriously low esteem, may well be on to something.

Reviewing A Review: Toobin On Thomas

Decisionism took the long weekend and visited the Fourth Circuit. This explains the lack of posts over the last few days. But the New Yorker provides excellent in-flight reading. And with its slowly expanding online presence, it provides some good blog posting opportunities, too.

This past week, Jeffrey Toobin reviewed Clarence Thomas’s memoir. Toobin implicitly raises an important issue: whether his own hatred of Thomas eclipses Thomas’s hatred of, well, everybody else. There’s little doubt that Thomas’s biography and his rightward views are often tough to reconcile. But Toobin can’t seem to control his inner liberal in this piece. Which is too bad, given that Toobin has in the past demonstrated an impressive ability to refrain from stepping all over himself in a genre where that’s quite an accomplishment. Of Thomas’s view that his race was a negative factor in his nomination to the Supreme Court, Toobin says “It is hard to tell whether this is self-delusion or dishonesty.” Toobin says that Thomas’s description of Anita Hill is “venomous and implausible.”

One would have thought that a Harvard-educated former Assistant U.S. Attorney would know better, would know to let the facts speak for themselves. But Clarence Thomas might be sort of like gambling and internet porn in that he causes impulse control problems.

There But For The Grace Of God . . .

The next time you make a mistake, and there will be a next time, take some solace in the fact that you didn’t blow the appeal deadline on a $2.5 million judgment against one of your clients. Relying upon a tortured theory involving a motion for reconsideration, and quite possibly a judicious sense of charity, the Appeals Court was gracious enough to knock $250,000.00 off of the judgment in this case.

Now, the case did involve what appears to be a clear violation of the maternity leave statute by the defendant employer, so the blown deadline may have been the work of karmic forces that we must respect but will never understand.

Your Government At Work

There’s great interest in the Vith Ly decision yesterday from the SJC. The legal principles and precedential effects are interesting, but the case once again raises one of the most urgent and least sexy issues facing the Commonwealth and the nation: the basic diligence and competence of our government.

This is simple stuff, isn’t it? If we can’t manage to order a convicted rapist to jail for a period of sixteen years – during which time he’s twice brought before the courts for other serious charges – if we can’t manage that, should we be surprised when tunnels and bridges collapse, when restaurant venting systems go uninspected, or when giant pallets of cash disappear in the Green Zone? Maybe, though, this is just the kind of stuff that happens when turnout is fourteen percent.

My Kind Of Water-Borne Parasite

On environmental issues, the conventional wisdom is probably that big liberal cities like New York and Portland are more aggressively regulatory than the Bush administration or the judges sitting on most circuit courts of appeal.

How to explain this, then? New York and Portland unsuccessfully challenged an EPA rule that will require them to take additional steps to reduce the amount of cryptosporidium in public drinking water. The Court helpfully reminds us that cryptosporidium “is a parasite found in human and animal feces.”

New York and Portland also win the award for most cringe-inducing argument of the day: claiming that “sensitive subpopulations (e.g., AIDS patients) . . . tend to drink more bottled water than normal.” If you’re going to make an argument like that to smart fellas like Messrs. Ginsburg, Tatel, and Sentelle, you might want it to, er, have at least some factual support.

Paul Bunyan Is Smiling Somewhere

The legal profession is as guilty as any logger when it comes to deforestation. The Appeals Court today reminds us why this is so.

The Court determined that a nonparty to an arbitration doesn’t have to pay damages awarded at the arbitration. There’s a (weak) argument that things were slightly complicated because the nonparty was a surety and there were punitive damages involved. But this really looks more like something that the Appeals Court could have dealt with in one or two pages and not ten. Alas.

The Mass Pike Might Want To Revisit Its Budget Numbers

Most adults have jobs, and this is a good thing. Most employers, on other hand, think they can fire their non-union, non-contract employees at any time for any nondiscriminatory reason, freely alter plans for bonus compensation and sick leave, and the like. And they’re usually right about this.*

Today, however, the Appeals Court in LeMaitre v. Massachusetts Tpk. Auth, Mass. App. Ct. No. 06-P-0455, held that a personnel manual can give an employee a contractual right to get paid for sick leave. And this isn’t the first such case – legal authority on this question goes back quite a ways. You’d think employers in Massachusetts would have quit issuing personnel manuals a while ago, right? Not the Mass Pike.

Think about the number of Pike employees who will take advantage of this decision for their own benefit. This case might be a bigger deal that one engineer's sick pay.

* Whether you think this is a good thing depends on where you sit.

Today in Bruce Selya

What better day than today to begin an occasional feature: TODAY IN BRUCE SELYA? Known for his preposterous vocabulary, this First Circuit luminary is equally notable for the rarity with which he reverses summary judgment decisions. Today is no different. But the words, the words. They fill us with glee, especially those of us who feel we underperformed on the English SAT. In any event, some highlights from the opinion:

BREVIS
EXEGETIC
TAMISAGE
CARTING COAL TO NEWCASTLE
FLOGGING A MORIBUND MARE

November 1, 2007

Now You Know!

Been wondering why the named defendant in immigration cases is some person named Keisler?* Because: “On September 17, 2007, Peter Keisler was named Acting Attorney General.” That’s why. If this Mukasey madness continues, Mr. Keisler’s fifteen minutes may last a bit longer than anyone expected.

*Not wondering about this means that you are completely normal.

October 31, 2007

If He Had A Hammer

Some cases are notable merely because there are lawyers out there willing to take them.

In this case, the plaintiff decided that he wanted to kill himself.* So he tried to goad the police into shooting him to death, which is less uncommon than one might think. What makes this case strange, though, is that the police did shoot him, he survived, and then found a lawyer willing to sue the police for violating his constitutional rights by using excessive force to subdue him. Excessive force? Given his goal, isn’t the problem that the force was insufficient?

*There is no doubt that this extremely sad.

October 30, 2007

Show Your Work, Please

Appellate Courts occasionally leave critical logical steps unexplained.

When you get beyond the titillating facts, this case presents an interesting question of logic. Officer X did not have an adequate basis for conducting a search of the Suspect. Officer Y may or may not have had such a basis, but did not communicate that basis to Officer X. The trial court suppressed evidence recovered from a search based on Officer X’s inadequate basis, but did not consider Officer Y’s basis. The First Circuit vacates the trial court’s decision, saying that the trial court should have considered Officer Y’s basis for conducting the search, Officer Y hadn’t provided sufficient testimony about the facts supporting his basis, but – and this is the key – leaves it to the trial court to determine whether such additional evidence is necessary.

Forget about Officer X. Officer Y has not provided enough testimony to support the search. But the First Circuit leaves it to the trial court to determine whether even to take evidence regarding Officer Y’s basis for wanting to conduct the search in question. That doesn’t make sense. The First Circuit should have either affirmed the trial court or vacated its decision and ordered the trial court to take more evidence from Officer Y. That is, unless the First Circuit is implicitly telling the trial court that it can disregard Officer Y’s testimony based on his lack of credibility. But if that’s what it’s staying, why doesn’t it say that?

October 29, 2007

Hard Questions

How does a court decide whether to take a child from an uncle and aunt who are doing a fantastic job and give her to a father who isn’t horrific but isn’t great? The answer, of course, is “it depends.”

This Appeals Court decision, in In re Estelle, Mass. App. Ct. No. 06-P-1612, is interesting for another reason. It’s an example of an appellate court reversing a trial court while simultaneously giving the trial judge thinly veiled instructions for how to do what it was trying to do in its original decision.

Finally, it’s difficult to see how the law can play any effective role in an arena that is so intensely personal and emotional. For some, the notion of voluntarily relinquishing the right and immeasurable joy of raising a daughter is unimaginable. For others, it appears, not so much. But for these latter folks, maybe there ought to be an irrefutable presumption that you’re not a fit parent. That would certainly make cases like this one a lot easier to decide.

October 26, 2007

The Beast's Nature, Etc.

Perhaps the least fun aspect of the profession is its necessary proximity to intense human suffering. Every now and then, as in this decision, the enormity of that suffering completely overshadows the legal issues that arise.

Yet another example, by the way, of how easy access to personal firearms is one of this nation’s great ever-unfolding tragedies.

October 25, 2007

Covered

One thing that some insurance companies are very good at is getting in fights with people they insure. And they’re good at it in the sense that, regardless what you think of them, they tend to win. Not so today, in Utica Mut. Ins. co. v. Fontneau, Mass. App. Ct. No. 06-P-930.

A property owner guy owned two parcels of land right next to each other. He had liability insurance for one but not for the other. His policy for the insured parcel covered him for losses that happened on that parcel and on parcels used in connection with it. The property owner stored antique cars and other personal items on the adjacent parcel. A police officer came by to investigate vandalism complaints at the adjacent parcel and hurt himself on a path connecting the two parcels. The insurance company, Utica, refused to cover the loss, sued the property owner, and lost at trial and in this appeal.

The crux of the Court’s rationale was that the insurance company didn’t introduce evidence it was surprised it had to cover the loss on the path. What’s interesting here is that in a different case three years ago, the Appeals Court held that a regularly used private beach was not “used in connection” with the owner’s main parcel 500 feet away. Which means that Utica is probably shaking its head in disbelief at this point.

October 24, 2007

There Are Limits Out There Somewhere

In the current political and constitutional climate, it’s easy to forget on occasion that we have some fairly significant protections, at least nominally, within the bill of rights. One of these protections, found in the Fourth Amendment, is the right to be free from unreasonable searches and seizures. That right applies to good folks and bad folks, alike. And it makes everybody uncomfortable.

Earlier this week, three judicial celebrities on the D.C. Circuit (Ginsburg, Sentelle, and Tatel, JJ.) reversed the gun charge conviction of Ronnell Holmes. D.C. police officers saw Holmes visiting with an unsavory member of the opposite sex in a dark alley in the middle of the night. They detained him after a brief foot pursuit, took his car keys from him, handcuffed him, and then, after obtaining his permission, searched his car and found a gun under the front seat. The problem with the government’s case was the decision to take Mr. Holmes’s car keys from him. They weren’t a weapon and they weren’t contraband, so under the caselaw interpreting the Fourth Amendment, the police had no business with them.

The prosecution argued that the taint on the keys issue was mitigated by Holmes’s consent to the search. But the Court held that Holmes’s consent to the search had been coerced, that he’d only agreed to let them search the car (which they located by clicking the little remote unlock button) because he thought it was his only way of avoiding an arrest.

So Holmes, who admitted that he had been offering to pay his female friend for her entertainments, ran away from police when they approached him, and kept a gun under the front seat of his car, goes free. Imagine this though, what if instead of finding a gun under the front seat, the police found a dirty bomb? Same result? If the answer is no, that’s a problem. Isn’t it?

Not Enough Information

A mind-numbing decision from the Supreme Judicial Court concerning the appropriate price Cambridge should pay NStar for lighting equipment. What’s missing? The amount of money at stake, that is, the difference between what Cambridge says it should have to pay and what the Court ultimately decided it has to pay. Admittedly, the amount in controversy has nothing to do with the decision or the application of the law to the facts. But isn’t it important nonetheless?

October 22, 2007

In Other News, It’s Monday

The least surprising development of the day is another First Circuit case in which an official in Puerto Rico’s government alleges employment termination based on political beliefs. The Court seems to be good for at least one of these per week. What in the world is going on down there?

October 19, 2007

Ouch

Sometimes it’s just pretty clear that a guy’s habeas petition isn’t going to be granted and he’s going to have to stay in jail. As in, when the First Circuit includes this sentence in its decision: “There is no doubt that [aforementioned habeas guy] killed Tyrone Davis outside a bar in 1999 by stabbing him in the head.”

Habeas guy might have had some hope if the First Circuit had concluded the previous sentence after “1999” or “by stabbing him”, but they had to add that critical, visceral, honking detail: “in the head.”

October 18, 2007

Hire the Frickin’ Expert

If a case is going to require expert testimony, or even if the other side is going to put an expert witness (or, say, six expert witnesses) on the stand to testify about a critical aspect of the case, it’s going to be a good idea to hire an expert witness. In this arson case, a lawyer did not hire an expert witness to rebut arson allegations against his client or to help him cross examine the state’s expert witness. He just poked around the site of the fire and decided to go along with the state’s determination that the fire in question had been set intentionally.

His reward? Public statements in federal courts that his performance as an attorney had been “deficient.” That’s like getting a gold star, except the complete opposite.

October 17, 2007

Every Great Once in a While . . .

Appeals don’t succeed all that often. Appeals by folks convicted of murder, based on an unscientific reading of the appellate cases reported in the Commonwealth, are successful even less often. But today, in Commonwealth v. Morales, 70 Mass. App. Ct. 526 (2007), the Appeals Court ordered in a new trial for Arcangel Morales. He was convicted of murdering a homeless man during a confrontation in 2002.

The victim approached Morales after a female companion complained that Morales had struck her on the chin with a beer bottle a few months earlier. Morales and the victim had words, and the next thing the assembled gaggle knew, the victim had been stabbed twice in the chest and once in the arm. Morales hopped on a bus to visit relatives in Pennsylvania later on that night.

Morales succeeded on his appeal because the trial judge didn’t give a correct instruction on voluntary manslaughter. Boiled to its essence, Morales was claiming he was provoked and stabbed the victim in “the heat of passion.” The judge wasn’t willing to let that happen because nobody had seen Morales and the victim physically touch one another. The Appeals Court said that physical contact wasn’t a necessary prerequisite for Morales to claim he was provoked.

There’s a weird footnote in here, though, that highlights often confusing distinctions between necessity and sufficiency. It’s footnote five, which reads in part: “We are also aware of decisions in which the court has held that physical contact by victims was insufficient to justify such an instruction.” So if physical contact is insufficient, and there was no evidence of physical contact, it seems initially strange that a murder conviction would be overturned because the judge held that physical contact was necessary for Morales to win his manslaughter argument. If you look hard, though, you can see it: physical contact is neither necessary *nor* sufficient for a defendant to avoid a murder conviction. Why the Appeals Court determined that this was better left unexplained is unclear.

October 16, 2007

Stealing From Special Olympics = Evil

A few years ago, there were stories about students at Pepperdine Law School who determined that if they represented criminal defendants, they would not try to employ technicalities to get them off the hook. The lawyer in this case, who represented someone accused of embezzling money from the Special Olympics, must not have a very large fan club chapter at Pepperdine. He argued that his client should get off because she hadn’t actually stolen from the Special Olympics, she’d stolen from the people who wrote checks to the Special Olympics. It’s all good, in other words.

Stealing from the Special Olympics is evil, by the way, but it’s always interesting to see how embezzlers set up their enterprises. The defendant in this case was a bookkeeper for the Special Olympics. She set up a false telemarketing operation and a separate bank account, and she was off to the races. Yet another reason that being intensely skeptical of any telemarketer is a very good way to be.

October 12, 2007

Use it Or Lose it

One would suppose that Merrill Lynch cringed just a tiny bit when it received bills from Eugene Volokh related to his First Amendment work on this case decided today by the First Circuit. That is, assuming that Prof. Volokh billed his time; he could just have a deep and abiding interest in the ability of big financial services companies to exercise First Amendment rights when firing employees. Or not. Everyone’s got to eat, in any event.

Learning that they’d lost the ability to even raise the First Amendment issue because they hadn’t raised it in the trial court? Merrill can’t have been too happy about that.

It’s always interesting to see what constitutional causes the assorted right-leaning members of the legal academy tend to espouse. The ability of big companies to make false statements about former employees seems a bit less urgent than others.

October 11, 2007

Obviously!

Every few weeks or so, a loopy Appeals Court decision causes members of the bar to collectively shake their heads across the Commonwealth. This is such a case. There’s a regulation governing administrative procedure stating that documents are deemed filed on the day that they are postmarked. The Division of Unemployment Assistance follows this regulation. An employee must “file” his or her appeal of an adverse unemployment decision within thirty days of receiving it. But for some odd reason, the “postmark” rule doesn’t apply to these appeals. Why? Apparently because “file” means “file” unless it means “file” in which case it doesn’t mean “file”.

Perhaps the most emblematic passage of the entire decision appears in footnote 6: “Rule 3 states, in relevant part, that ‘[a] civil action is commenced by (1) mailing to the clerk of the proper court by certified or registered mail a complaint and an entry fee prescribed by law, or (2) filing such complaint and an entry fee with such clerk.’ At least for the purposes of this rule, mailing and filing are obviously not the same thing.” Obviously!