Last Week in Federal Appeals (No. 10)
Appellate decisions from the week of May 24-28, 2021
“The difference between waiver and forfeiture has long bedeviled lawyers and judges alike. Lawyers often split the difference, using the terms interchangeably or even offering a formulation like “my opponent waived and/or forfeited that argument.” Sometimes they will also invoke invited error, which falls within the continuum between forfeiture and waiver. But the terms have different meanings and, especially in criminal cases, different consequences”
~ Judge Bush, United States v. Montgomery
Supreme Court of the United States
City of San Antonio v. Hotels.com
The Supreme Court unanimously held that Rule 39 of the Federal Rules of Appellate Procedure does not permit a district court to alter a court of appeals’ allocation of costs between the parties. San Antonio (for a class of 173 Texas municipalities) won a multi-million dollar judgment in district court against online travel companies related to hotel occupancy taxes. The companies secured a bond to preclude enforcement of that judgment while they appealed, won their appeal, and then filed a $2.3 million bill of costs, mainly related to the cost of the appellate bond. San Antonio had argued that the district court had discretion to refuse to tax those costs.
United States v. Palomar-Santiago
8 U.S.C. Section 1326 permits a defendant immigrant charged with unlawful reentry after removal to challenge the earlier removal order that ejected him from the country if: (1) he exhausted available administrative remedies before removal, (2) he lacked the opportunity to seek judicial review before removal, and (3) the earlier removal order was fundamentally unfair. The Supreme Court unanimously held that each of these requirements was mandatory, reversing the Ninth Circuit’s ruling that Palomar-Santiago could be excused from meeting the first two requirements.
Guam v. United States
In 2004, Guam and the U.S. EPA settled a lawsuit brought by the EPA related to alleged violations of the Clean Water Act at a Navy dump site. Guam later sued the United States under CERCLA to recoup cleanup costs and seek contribution from the U.S. because the federal government also dumped waste at the site. The district court dismissed both claims, holding that the contribution action was time-barred and that a party with a contribution claim cannot bring a cost-recovery claim.
The Supreme Court unanimously reversed, holding that Guam had no contribution claim because the original settlement did not relate to CERCLA violations. Thus, Guam may, in fact, be able to pursue a cost-recovery claim.
Third Circuit
United States v. Boyd
The Third Circuit rejected the defendant’s argument that his conviction for possessing a firearm while subject to a protective order violated his Second Amendment rights. The panel explained that Boyd “failed to distinguish himself from a class of presumptively dangerous persons who have historically been excluded from the Second Amendment’s protections,” even though the protective order against him did not include an explicit finding that he posed a credible threat to others. Even if he could, the panel went on, the statute would still satisfy intermediate scrutiny.
Fourth Circuit
United States v. Guzman
The Fourth Circuit rejected Guzman’s challenge to his conviction for unlawful reentry into the United States after removal. The panel held that, because neither the Administrative Procedure Act nor the Due Process Clause of the Constitution applied to Guzman’s removal proceedings, he had no right to counsel in his earlier removal case. Thus, the earlier removal was not “fundamentally unfair” and Guzman could not challenge it.
Bryant v. Warden
The Fourth Circuit reversed the district court’s decision to grant Bryant habeas relief. The panel explained that the state postconviction court neither unreasonably determined that a hearing-impaired juror was competent to sit on the jury nor unreasonably applied federal law by upholding his conviction.
Quintero v. Garland
The Fourth Circuit held that immigration judges have a legal duty to develop the record in asylum cases to enable effective appellate review. The panel therefore reversed the BIA’s decision rejecting Quintero’s asylum claims and remanded for further proceedings.
United States v. Simmons
The Fourth Circuit held that a RICO conspiracy does not categorically qualify as a “crime of violence” under a statute criminalizing using or carrying a firearm during a crime of violence. This is so even where the RICO conspiracy charge is an “aggravated one,” meaning that it involves predicate acts (such as murder) for which the defendant could receive a life sentence.
Sixth Circuit
United States v. Montgomery
Vacating a defendant’s sentence, the Sixth Circuit further emphasized the difference between waiving and forfeiting arguments in criminal cases. Waiver is the intentional relinquishment of a known right; invited error occurs where a defendant does not waive a right but somehow contributes to the district court’s error; forfeiture is the passive failure to make a timely argument. Here, because the defendant simply “invited” a guidelines calculation error (by incorrectly telling the district court he was in criminal history category VI rather than V), the Sixth Circuit found that it could correct the error because “the interests of justice” demanded it do so.
Vitolo v. Guzman
The Sixth Circuit enjoined regulations implementing a section of the American Rescue Plan Act of 2021 that permits the Small Business Administration to give grants only to “priority” struggling businesses during the first 21-days of the grant program. Priority businesses were those owned by women, veterans, or those “subjected to racial or ethnic prejudice” or “cultural bias.” The SBA’s regulations presumed that members of certain races were socially disadvantaged. The Sixth Circuit found that this regulation impermissibly discriminated on the basis of race and (when combined with the statute itself) sex.
Eleventh Circuit
United States v. Cody
The Eleventh Circuit held that, after a defendant prevails on a habeas petition under Section 2255 and is resentenced by the district court, he must still seek a certificate of appealability before challenging the new sentence. A challenge to the district court’s choice of remedy upon granting the defendant’s petition may not be appealed as of right.
United States v. Roberson
The Eleventh Circuit upheld the public corruption convictions of a lawyer and a lobbyist convicted of bribing a state representative. The panel rejected the defendants’ claim that, under recent Supreme Court cases, no reasonable jury could find that the representative in question committed an “official act” in response to the payments. It held that the statute under which the defendants were convicted (the federal programs bribery statute) did not require the same level of proof as the statute the Supreme Court had considered in those earlier cases.
Points of Interest
The Washington Supreme Court held that the state trial court erred in refusing to sever a defendant’s bail-jumping charges from his domestic violence charges. It held that missing a court hearing “does not rise to the level of flight evidence from which one can infer consciousness of guilt on the underlying crime.”
Also, this week, the Washington Supreme Court held that a YouTuber who runs a channel called “Libertys Champion” did not qualify as a member of the “news media” entitled to special access to public records under state public records laws.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.
