Notice of Appeal

April 12 -- 11th Circuit Decisions

A somewhat less momentous day for the 11th Circuit Court of Appeals, as it finishes off the post-spring break rush of opinions -- the Court affirmed a district court's grant of summary judgment against a Section 1983 plaintiff (Porter v. White), affirmed a district court's dismissal of a subsequent criminal case against a defendant on the ground that the government was collaterally estopped by an acquittal on a different charge in a prior case (U.S. v. Ohayon), and issued a revised opinion in a case involving Florida insurance law reconsidering its earlier grant of attorneys' fees under the statute (Dadeland Depot v. St. Paul Fire & Marine).

Reversals abound today in the Eleventh Circuit

The Eleventh Circuit issued three additional decisions since noon today, and all of today's opinions reverse the trial court at least in part.

This trend seems remarkable given that by far, most appeals result in an affirmance -- but since the opinions mentioned here are only the published opinions (representing only 10% of the court's caseload in 2006), it perhaps makes sense that a high(er) percentage of the published cases are reversals. 6 out of 6 opinions reversing at least some aspect of the case is still interesting, though, particularly because several of the cases reverse the district court on issues where the Eleventh Circuit does not have a reputation for being to be especially "activist" (to use a loaded term) -- e.g. sufficiency of the evidence in a criminal case, the right to counsel in a criminal case, and here, civil rights. Evidence, perhaps, to counter the cynical jurisprudential realists out there...

Eleventh Circuit -- three more cases

In Chaney v. City of Orlando, a Section 1983 excessive force and malicious prosecution case against the city and one Officer Cute (whose name could inspire several jokes), a jury had found in the plaintiff's favor on a special verdict form. The Eleventh Circuit ruled that the trial court improperly granted the defendant's Rule 50(b) motion on the basis of the jury's findings on the special verdict form, rather than based purely on whether there was sufficient evidence to support imposition of liability.

In another Section 1983 wrongful arrest case, McClish v. Nugent, the Eleventh Circuit held that an officer violated the Fourth Amendment when (without a warrant) he knocked on the door, and upon the suspect's opening the door, reached into an open doorway to grab the suspect, pull him out onto the porch, and arrest him -- distinguishing this case from precedent where the suspect was already standing in an open doorway when police arrived, and the home was used for drug sales. (Judge Anderson disagreed with Judge Marcus and visiting Judge Altonaga, finding the precedent indistinguishable.)

Eleventh Circuit -- class action removal (CAFA), and right to counsel

The Eleventh Circuit is busy today, already posting three opinions this morning -- an extensive opinion on the Class Action Fairness Act (CAFA), a ruling on the right to counsel, and an opinion reviewing a number of matters in a criminal case.

First, the Eleventh Circuit (Judge Tjoflat writing) issued an extensive (77 page) opinion in Lowery v. Alabama Power, an air pollution tort case, interpreting diversity jurisdiction removal requirements in the context of the Class Action Fairness Act (CAFA).

Today's Georgia Court of Appeals Decisions

The Georgia Court of Appeals issued seven decisions today.  Four of these (Rocha, Attaway, Burk and Smith) affirm criminal convictions, and one (In re Am. T.) affirms termination of parental rights. (By the way, permissive parents and fraternities beware -- Burk holds that a reasonable belief that minors are drinking in the home constitutes an "exigent circumstance" permitting warrantless entry.)

In the "No Good Deed Goes Unpunished" category is the case of Crosby v. Comcast (2007 WL 1053381).

Eleventh Circuit Decisions -- April 10, 2007

The Eleventh Circuit posted two decisions today:  In Usmani v. U.S. Attorney General (a "screener" or nonargument case), the Eleventh Circuit decided a statutory immigration issue -- and a question of first impression in this circuit -- ruling, perhaps unsurprisingly, in favor of the government's discretion under 8 U.S.C. 1255(i) and against the Pakistani citizen seeking to avoid removal.

Also, the Court sua sponte vacated its previous opinion in C.P. v. Leon County School Board, a case interpreting the Individuals With Disabilities Education Act (IDEA), substituting a new opinion in its place. Usually this happens when other members of the Court have reviewed an opinion and internally requested the panel to modify the opinion -- and unlike motions for reconsideration by a party, there is no real hard and fast deadline for such a modification.  Here, it appears that the Court was not comfortable with the original opinion's discussion of the fact-intensive question of whether the school board provided "free appropriate public education" (FAPE) during the time in question, and preferred to rely solely on the fact that the school board was obligated to maintain the status quo during that time period in any event. (Compare opinions starting at page 15.) Nevertheless, this should not be a rude surprise for either party, because the bottom line remains the same: affirmed.

Using our RSS Feed

For those of you who would like to get updates in your inbox frequently instead of checking the webpage, you can subscribe to our RSS feed -- you'll get an instant update of the blog, sent right to your desktop as it happens (or however often you decide).

I am experimenting with "NewsGator Inbox," third-party RSS newsreading software that delivers the posts directly to Outlook. To subscribe (after initial setup), right-click (Mac users option-click) on the link to the lower right of this blog, and "copy shortcut." Then, in your preferred newsreader, choose to add a feed, and paste the link you just acquired). Voila -- instant appellate news.

11th Circuit - New Rules Effective April, 2007

For those who practice in the Eleventh Circuit, the Court has implemented a newly amended rule 26.1-2 regarding the Certificate of Interested Persons/Corporate Disclosure Statement, which the Court relies on to screen for conflicts.

The primary changes are to require the certificate to be filed within 10 days after filing the notice of appeal (instead of simply including it in the first brief), and to require the parties to fill out a web-based certificate (which I could not locate on the website -- call the clerk's office to inquire) in addition to filing the paper certificate, but there are several changes making the whole amended rule worth a read if your case was docketed after April 1, 2007.

Also, while you're looking at requirements that come up at the beginning of an appeal, note that, as of today, the appeal docketing fee is now $450 (or $455 if you include the $5 district court fee). See the announcement on the Eleventh Circuit website.

11th Circuit -- Friday April 6

"The facts of Patrick Lett's life that gave rise to this case read somewhat like a morality play."

So begins this opinion by Judge Carnes in the case of U.S. v. Lett, 06-12537, decided Friday. Although sympathetic to the district court's attempt to impose a non-guidelines sentence of time served (11 days) in light of the compelling facts of Lett's life (including his distinguished military service), the Eleventh Circuit ruled that the district court did so without authority, and remanded with instructions to impose the 5 year mandatory minimum instead. 

Also, in Rowe et al. v. Jones et al., 06-12296, the Eleventh Circuit (per curiam) parsed the distinction between "consent decree" and "private settlement agreement" for the purposes of determining whether a settlement involving the Glynn County Detention Center could be terminated under 18 U.S.C. § 3626(b).

Welcome Back, and New Format

Welcome Back to Notice of Appeal!

Trial is over, and post-trial vacation is over, and the writers have returned -- with a new format in mind.

Rather than present detailed analyses of specific cases, as we have been doing, we will strive to give you a quick rundown of the cases decided each day.  We'll collect the information about the day's cases, including links to the opinions wherever possible, in one place, so that you can see, at a glance, what opinions have come down recently.

As time permits, we will offer more detailed analysis of particular cases or trends, but our primary focus will be on collecting a brief, timely summary of all Georgia state and federal appellate information in one place. We expect to be able to bring you this information more regularly, and we hope this will be more helpful to our readers.

We also plan to partner with the newsletter of the Appellate Section of the Georgia State Bar to bring you news of appellate decisions -- details TBA!