Bishop Paiute Tribe v. Inyo County

Judges: Thomas, Murgia, Baylson (E.D. Penn.). Oral argument: 4/21/17, San Francisco. Prediction: Reversed.

People calling themselves law enforcement professionals are bickering like children, in this case that made its way to oral argument. The Tribe and Inyo County are located in the eastern region of California. Rather than treating each other like the law enforcement brethren that they are, they’ve found a way to fight about which agency gets to prosecute which crimes, where, when, and how. Inyo County has even threatened to charge a Tribal officer with various crimes under a theory that the officer is “impersonating a police officer.” The Tribe and the County have been busy writing each other threatening letters, leading up to the Tribe’s lawsuit in federal court.

Watching oral argument on this dispute was pathetic and depressing. The panel seemed to share my sentiments. In the lower court, the County appeared to have won a temporary, minor battle by persuading that judge that there was no active controversy to be litigated, winning a dismissal on Article III grounds. But the panel questioned the County’s wisdom in pressing that argument: Don’t you want an actual resolution of this complex law enforcement question, rather than trying to cleverly sneak out of this case even as you’re continuing to persist with your disputed position? If you are continuing to fight, shouldn’t we as a federal court step in and play the role society expects us to, by resolving this fight?

I see another reversal in the cards.


Lichtenegger v. Bank of Montreal

Judges: Trott, Ikuta, Faber (S.D. W.Va.) Oral argument: 4/21/17, San Francisco. Totally gut sense prediction: Reversed.

It was hard to glean the facts underlying this dispute from just the oral argument, but the legal issue was pretty clear: can a District Court make credibility determinations at the summary judgment level? If the panel is even asking you as counsel that question, you’re probably in bad shape. Judge Trott sounded genuinely bewildered at how he could be expected to affirm a summary judgment ruling that contained as many comments about witness credibility as the lower court’s ruling did. A court can do so at a trial, of course. But these lawyers appeared to have submitted briefs only, followed by oral argument that was not an evidentiary hearing.

Muddying the waters further was the fact that the lower court’s ruling included fact findings that the lawyers for the appellants may have engaged in misrepresentations to the court. Those lawyers fervently made their case to the panel that such findings were wrong, and that they didn’t have a proper opportunity to address them below. Judge Trott and the rest of the panel seemed potentially receptive to that point.

I looked up the underlying case to satisfy my curiosity. The dispute arises out of an expensive piece of equipment that was sitting in an ocean port in California. One side demanded that the equipment not be moved, whereas the other wanted to ship it out to New Zealand. As Judge Trott observed, the lower court’s ruling addressing the issues repeatedly made references like this one: “This testimony is not credible, and the court does not believe it.” Yikes. The court can do that at trial. It can’t on summary judgment. I expect a reversal here.

Update: On 7/14/17, the panel reversed.

Perez v. City of Roseville

Judges: Reinhardt, Tashima, Molloy (D. Mont.). Oral argument: 4/19/17, San Francisco. Prediction if I dare: Reversed.

Janelle Perez sued the City after losing her job with its police department. The City believes that she was engaging in an extramarital relationship with another married police officer. Since she was only a probationary employee, the PD fired her.

She sued under what appears to be a set of constitutional theories. The District Court dismissed on summary judgment. At argument, the panel was relatively quiet with Perez’s counsel. Judge Reinhardt honed in aggressively on the City’s counsel, repeatedly pressing her on what facts supported the view that Perez had engaged in relationship-misconduct while on duty as opposed to off duty (answer: not much).

Chavez v. County of Sonoma (Calif.)

Judges: Tashima, Reinhardt, Molloy (District of Montana). Oral argument: April 19, 2017 in San Francisco. Prediction if I dare: reversed.

Argument in this case concerned a § 1983 lawsuit over a criminal defendant who was wrongfully jailed for 2 months for a parole violation when he wasn’t a parolee. Oops. Chavez sued the County that had jailed him, even though it was the State of California that handled his parole status. He asserted in part that the county jail staff owed him a constitutional duty (14th Amendment?) to investigate his parole status, which could have avoided the needless 2 months he spent in jail. The district court dismissed on summary judgment so it’s Mr. Chavez who appealed.

At oral argument, Chavez’s counsel drew on his obvious expertise in criminal defense to push back on the panel’s suggestions that Chavez or his counsel had ample opportunities to protest his innocent status during the 2-month period. He had a hearing or two on a separate criminal charge, the panel asked, so why didn’t you just mention the parole SNAFU to the judge? Because–counsel insisted–doing so would be flatly improper under California criminal procedural rules. Had I raised his parole status, said counsel, the judge would have stopped me because he had no jurisdiction to entertain my request.

Chavez’s counsel struggled with two burning questions the panel had for him: (1) why haven’t you addressed the county’s Monell liability in your brief, and (2) why didn’t you address qualified immunity? On the other hand, the panel seemed concerned about whether Chavez or jailed suspects like him had any adequate remedies other than this case at the moment.

Counsel for the county spent her time tackling persistent questions on why the county didn’t do more to make sure that this man in its jail facility was actually supposed to be there. The panel was clearly troubled by what had transpired in this case. But that doesn’t mean it will find a constitutional cause of action on these facts–particularly if the plaintiff-appellant hasn’t found a good Monell theory.


Update: It turns out that counsel’s failure to argue Monell or address qualified immunity was fatal. On 4/26/17, the panel affirmed the dismissal.