Finality in Federal District Judgments for Purposes of Appeal: the General Rule

Federal courts of appeals have jurisdiction of final U.S. district court judgments except where a decision may be directly reviewed by the Supreme Court of the United States.  SCOTUS said, in Hall v. Hall, No. 16-1150, Mar. 27, 2018, which I have cleaned up: "A final decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. The archetypal final decision is one that triggers the entry of judgment. Appeal from such a final decision is a matter of right. Under §1291, any litigant armed with a final judgment from a lower federal court is entitled to take an appeal, which generally must be filed within 30 days."

Habeas Corpus in Federal District Court

What do you have to do to get to apply for a writ of habeas corpus in a federal district court for a wrongful conviction? I'm going to be outlining the answer here instead of going into precise detail because a detailed answer would turn this blog post into a law review article or even a book. The answer is different depending on whether or not the wrongful conviction that you are seeking relief from is a state or federal conviction. If it is a federal conviction, you must exhaust your rights to appeal, and apply for your writ before a year of time has passed consisting of all the days that the conviction was final. This one-year period comes from the Anti-Terrorism and Effective Death Penalty Act. If it is a state court wrongful conviction you have to exhaust your state appeals, if any, and your state applications for a writ of habeas corpus, again before there have been 365 days of judgment-finality. The 28th volume of the United States Code chapter 153 has the federal habeas corpus statutes, and there are, additionally, special rules for these proceedings, which can be downloaded here.
As compared to the vast majority of state courts, federal courts are preferable for applicants because federal judges serve for life on good behavior and have other protections for their independence, where state court judges by virtue of their limited terms are creatures of politics. In many places, including Texas, they must seek their benches as partisan political candidates. It is far more common for a judge to lose a bench by being too even-handed between the State and the defense than to lose their benches by being too hard on crime-- making them favorable to the prosecution. A federal judge who angers the electorate keeps the bench and the pay for life.

Can a State Hold that Powers of Attorney Will Only Bind Principals to Arbitration if Binding to Arbitration Is Expressly Mentioned in the POA?

A wife has a general power of attorney to act on behalf of her husband. A daughter has a general power of attorney to act on behalf of her mother. Using the powers of attorney they sign their loved ones into a nursing home. The paperwork includes a binding arbitration clause. When the husband and mother die, the wife and daughter blame the deaths on the nursing home and sue it. The nursing home moves to dismiss the suits to stick the plaintiffs with binding arbitration.

The trial court rules in favor of the plaintiffs, as does the court of appeals, as does the Kentucky Supreme Court. They hold that under Kentucky law a power of attorney can only bind a principal to arbitration only if the right to bind the principal to arbitration is expressly provided in the power of attorney.

The Supreme Court of the United States ruled in favor of the nursing home. They held that the Federal Arbitration Act superseded any state rule disfavoring arbitration, and, that, therefore, Kentucky's rule was contrary to that act.

Justice Kagan wrote for seven members of the court. New Justice Gorsuch recused himself, and Justice Thomas dissented consistently with earlier opinions of his that the Federal Arbitration Act doesn't apply to state court proceedings.

Kindred Nursing Centers, v. Clark, No. 16-32, 581 U.S. _____, (May 15, 2017.)

Some disputes are better suited to arbitration than to trial.  Arbitration with choice of law is good for international trade disputes, especially where the contracting parties can each pay the costs of hiring the arbitrators, etc.  Otherwise, an unscrupulous party could grow a million flowers of delay that could drag on for years. Arbitration has worked pretty well between stockbrokers and their customers. They make sense where our brains are miswired to make a disinterested decision (For more on this read Predictably Irrational by Dan Ariely. I could even see that nursing home wrongful death cases might qualify.

Arbitration makes me uncomfortable in arm's length consumer transactions, especially when the consumer is expected to pay in the low four figures or above in advance for the arbitrators and must \ additionally a lawyer who knows about arbitration and the subject matter of the dispute. Often the location is very convenient for the business (in a town where one of their main offices are) and very inconvenient for the claimant who, along with counsel,  might have to make multiple cross-country trips.

Arbitration can burden a claimant with high costs and strip a claimant of many of the protections of the constitutions (federal and state), statutes (federal and state), and procedures of courts- arbitration of manufactured housing disputes, workplace discrimination, software license agreements, etc. Furthermore, these contracts are often contracts of adhesion.  Don't agree to arbitration? Well, then no mobile home for you, or job, or use of vital software.

Notwithstanding all that, if arbitration is sometimes advisable, I am sympathetic with courts. like the one here in Clark, making it very difficult to weasel out of arbitration agreements, It would not take  very many exceptions to make the FAA a dead letter.

Amendments to the Federal Rules of Appellate Procedure Go into Force Today

Amendments to the federal rules of appellate procedure go into force today. This is a link to the rule changes. The most important changes will be to reducing word counts in briefs.

I feel forced to copy this here, because I don't know how long the Fifth Circuit's guidance about reducing word count and cases in briefing will be on the front of their web site.

Guidance regarding reduced word count and cases in briefing.

Reduced word counts became effective December 1, 2016, pursuant to changes to the Federal Rules of Appellate Procedure. To ensure fairness to parties, for cases in briefing where an appellant filed a brief before December 1, 2016, and an appellee's brief will be due on or after December 1, 2016, the appellee's brief may use the former (greater) word count limitation, if necessary.  As the court continues to consider possible changes with respect to new word count limitations, counsel are invited to review Fifth Circuit Circuit Rule 32.4.

Fifth Circuit miscellaneous fees are going up.

The Sneaky Extra Rule You Have to Remember Sometimes When You're Citing the Federal Fifth Circuit

Every part of the United States of America is served by a federal district court, and those-- in turn-- are served by federal circuit courts of appeals. Eleven of them are numbered. Each of those cover a geographical area.

First: Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.
Second: Connecticut, New York, and Vermont.
Third: Delaware, New Jersey, Pennsylvania, and the Virgin Islands.
Fourth: Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
Fifth: Louisiana, Mississippi, and Texas.
Sixth: Kentucky, Michigan, Ohio, and Tennessee.
Seventh: Illinois, Indiana, and Wisconsin.
Eighth: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
Ninth: Alaska, Arizona, California, Territory of Guam, Hawaii, Idaho, Montana, Nevada, Territory of the Northern Mariana Islands, Oregon, and Washington.
Tenth: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Eleventh: Alabama, Florida, and Georgia.

There are two other I will save for a later post: the District of Columbia Circuit-- I know, it's kind of geographical-- and the Federal Circuit, which is the only geographically general content-specialized federal court of appeal.

So what's the special rule about the Fifth Circuit? It is Rule 10.8.2 of the Bluebook, A Uniform System of Citation. On October 1 1981, the Fifth Circuit was divided to create the new, smaller Fifth Circuit and an Eleventh Circuit.

So:

1. Cite decisions rendered in 1981 and labeled "5th Cir." by month.
2. Give unit information whenever possible (it seems the court began the transition by having a Fifth Circuit Unit A and a Fifth Circuit Unit B.
3. Designate as "Former 5th" any nonunit judgment labeled as a Former Fifth judgment and rendered after September 30, 1981.

Knowing this rule separates the appellate children from the appellate grown-ups. Although the other circuits have had coverage changes, this separation is the only one the Bluebook cares about.

The Federal Court System Seeks to Cut the Length of Briefs.

Here's a communication about proposed changes in the Federal Rules of Appellate Procedure. Their main effect would be to cut the length of briefs. There is a public comment period; how to comment yourself is in the printout.
So long as appellate courts have discretion to allow longer briefs for truly extraordinary cases, shorter default lengths would seem to make the system more efficient.

Federal Fifth Circuit Combines Statements of the Case and of Facts and Standardizes Record References for Automation

The United States Court of Appeals for the Fifth Circuit adopted proposed rule changes that combine statements of the case and statements of facts in briefs into a single statement of the case. They also standardized record references in briefs so that the references would automatically hyperlink to the record. These changes took effect December 1. The Fifth Circuit is the federal appeals court for Texas, Louisiana, and Mississippi.

Federal Appeals in Texas and Other Parts of the U.S. South

U.S. federal courts are generally organized into district courts, courts of appeals and then the Supreme Court of the United States. The most common federal court that does not fit in this structure is bankruptcy courts, which are below district courts. District courts are the general trial courts of the U.S. federal government. Appeals from bankruptcy court can go to district court or a Bankruptcy Appellate Panel of bankruptcy judges, depending on whether the local federal jurisdiction has set up BAPs. Texas has four federal judicial districts- eastern, northern, southern, and western. I won't go into the boundaries of the districts- they're pretty common-sensical, and you can look them up with the link above.

The courts of appeals for federal district courts are organized into circuits. The Fifth Circuit covers appeals from Texas, Louisiana and Mississippi. Before October 1, 1981, it also included Florida, Georgia and Alabama, but then an Eleventh Circuit was formed for them. It is important to remember if you are citing southern cases from around that time, that Fifth Circuit precedents bind the Eleventh Circuit for cases decided before October 1, 1981. Besides appeals from district courts, the Circuits also hear appeals from some federal agency decisions and from the Board of Immigration Appeals.

Federal jurisdiction is limited. Unless the United States Constitution or a statute allowed by it provides for federal jurisdiction of a matter, the presumption is that federal courts do not have jurisdiction. This contrasts with U.S. state court jurisdiction where there should be some court for nearly any dispute.

Who Has a Right to Appointed Counsel at Trial in Texas and in Federal Court?

American criminal defendants threatened with jail in either federal or state proceedings are supposed to have counsel appointed for them if they can cannot afford an attorney themselves. Gideon v. Wainwright, 372 U.S. 335 (1963). Convicts who are too poor to afford a lawyer who do not formally waive their right to one will have their cases reversed. This used to be a common problem with old prior convictions, but you are unlikely to encounter a case 50 years old or more that has not been challenged for Gideon error by now any more. Also those indigents adjudged sexually violent predators in Texas. Tex. Health & Safety Code sec. 841.005. In a suit filed by a Texas governmental entity in which termination of the parent-child relationship is requested, the court has to appoint an attorney ad litem to represent the interests of:

1. an indigent parent of the child who responds in opposition to the termination;
2. a parent served by citation by publication;
3. an alleged father who failed to register with the registry under Texas Family Code chapter 160 and whose identity or location is unknown;  and
4. an alleged father who registered with the paternity registry under Texas Family Code Chapter 160, but the petitioner's attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful.

Tex. Fam. Code Ann. sec. 107.103.

This is an important rule because in a world where there is less and less sure-fire reversible error-- this is the real thing.

Formally Citing a Federal Statute?- Check the United States Code, the 2012 Version.

A new edition of the United States Code started last year (The federal Government Printing Office basically does a new one every six years, and, in the interim, they put out supplements, like yearbooks added onto an old-fashioned printed encyclopedia.). The Bluebook says that the proper way to cite a federal statute is to cite it to the U.S.C. You're supposed to give the volume number and the date for the section you are citing. So, in the most formal legal writing situations, you have to look up every citation of a federal statute in the official printed United States Code published by the GPO to cite it to Bluebook standards. If I won the lottery, I would just buy every new volume each time one came out. As of this writing, there appear to be six volumes so far, each costing from between $138 and $156. If I spent that kind of money on infrequently used law books (I do much more Texas state work than I do federal work.), the financial controller of my law firm (AKA my wife) would have my ass.

As a practical matter, for formal citation of federal statutes, I am almost certainly going to need to make at least one trip to a Houston law library.

Do not confuse the U.S.C. with the United States Code Annotated by West-- probably the print edition easiest to access-- or the United States Code Service by LexisNexis. The annotations of these versions make them much more helpful for actual research. The rap on these two is generally that West's has a few more notes. The very,very nice folks at LexisNexis say that their version is more carefully edited-- that is, the extra annotations in West's aren't really interpretive-- they include a lot references to U.S.C. sections that are merely formal and add nothing, and LexisNexis costs a great deal less. Of course, access to U.S.C.A. is on the Westlaw computer service and U.S.C.S. can be gotten to on LexisNexis's website.

There are many fine, no-charge Internet sources of federal statutes:

• The U.S. House of Representatives,
• The United States Government Printing Office, and
• Cornell University's Legal Information Institute (a worthy cause to contribute to), and
• FindLaw by West.

U.S.C.A., U.S.C.S. and the no-charge cites above don't have the formal volume numbers and year numbers that the Bluebook requires, but they are fine for everyday use.

The GPO's annual U.S.C. CD-ROM is only $15, but presently the latest one is the one in which the statutes in force as of January 5, 2009 are collected.

People will look back at these times when formal legal citation required a book full of paper pages to be checked as a dark ages, and it might be that a physical edition may always have to be authoritative or authoritatively checked, but there's no reason it could not be some sort of read-only data file, one for which access could be gotten for no charge, notwithstanding at least one trend going the other way. It's no surprise that the Government Printing Office wants to change its name to the Government Publishing Office, since putting ink on paper will be less and less of what it does.

How Much Power Do Courts Have to Overrule a Federal Agency?

Federal agencies have broad and deep influence over our lives. How far, though, can they go before a court will stop them? The answer is in the rule of the case of Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), written by Associate Justice John Paul Stevens which says:

“First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.”

“If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather”“[I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.

467 U.S. 637, 842-843 (1984).

In this case, the NRDC had objected to some Environmental Protection Agency regs, having won at trial, Chevron, affected by them, appealed and the case ended up with the Supremes.

United States Supreme Court opinions commonly refer to and use this "Chevron deference."

 Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)

This blog post is adapted from a post on my website. From now on blog posts are going to be here.