A Loss for Liberty and Accountability

I had a conversation with a friend over the sexual harassment scandal that sweeps the nation.  One commentator suggested that men over 50 should wake up every morning worrying if their name will come up next.  Last week it started and yesterday it happened; Judge Alex Kozinski of the Ninth Circuit Court of Appeals resigned, effective immediately. 

Whatever label you would like to place on the former jurist, he exuded excellence.  Others can write the biography and highlight his career.  I write to reflect. 

My first argument with Judge Kozinski on the panel was Desrosiers v. Secretary.  That was my first win in the Ninth Circuit, a published opinion that established the proposition that when a doctor says heavy, don't assume that doctor opened up the DOT. 

In MacDonald v. Pan American World Airways, Inc. ESOP, Kozinski dissented and I lost.  I take comfort that he and I were right and the other people in the room were wrong.  "And" is conjunctive and not ambiguous. 

I had a few unpublished cases with Judge Kozinski along the way.  Jantzen sticks out in my mind.  A pure regulatory construction.  Suspension and resumption is not a new start but on the first set of rules. 

In Hearn v. Western Conf. of Teamsters Pension Fund, Judge Kozinski reinforced the notion of statutory construction -- that regardless of the published legislative history, we don't cross words out or make them superfluous in reading the statute.  Start with the ordinary meaning of the words. 

My run with Judge Kozinski ran out in Meanel v. Apfel.  I have long had a growing irritation and disgust with vocational experts.  Here, the court held that we cannot bring in new privately published data to the courts to trump the vocational expert. 

That run continued in Hart v. Massanari.  I cited an unpublished slip opinion in a footnote that literally said there is no authority for a proposition.  That was a "no-no" and I got an OSC from the court ... Judge Kozinski.  I explained my thought process, fell on my sword, and added that the Tenth Circuit thought the no citation of unpublished opinions rule unconstitutional.  Judge Kozinki stood on my corpse and told Judge Arnold from the Tenth that he was wrong. 

A decade later, Judge Kozinski commented "how fond" I was about citing unpublished opinions.  Garcia v. Comm'r of Soc. Sec.  I literally laughed out loud.  Listen to the audio. 

The other published opinion where I appeared before Judge Kozinski took place in the en banc argument in Crawford v. Astrue.  This case eviscerated the desire of the district courts to use a hybrid lodestar in calculating contingency fees.  Judge Kozinski agreed that the district courts had erred by dissented from the relief sought ... just pay me.  The majority of the 11-judge panel agreed on the error and the relief and chalked that one up for a win. 

Judge Kozinski appointed me as an Appellate Lawyer Representative to the Ninth Circuit.  I went to judicial conferences, rubbed elbows with the judges, and conversed about the mechanics of the court.  Through the arguments, the work as an ALR, and reading Judge Kozinski's opinions in other cases, I attest to the loss to the court, the judiciary, and society.  The sexual McCarthyism seeking to purge will catch good people and rob society of their talents and contributions. 

I am reminded of a thief, adulterer, and murderer.  His name was David.  None of us goes through life perfect or error free.  We need room for reconciliation and forgiveness.  Prosecute the crimes and work on the rest.  When we force excellence out of positions of service because we suspect a character flaw or exercise of poor judgment in the past, ask not for whom the bell tolls.  It tolls for thee. 

Rules Matter -- Cuevas v. Hartley and Kozinski's Dissent

Run of the mill ... ho hum.  Cuevas v. Hartley is just another habeas case.  But it represents much more -- a practice that Judge Alex Kozinski labels a game of "dare."  From the former Chief Judge's perspective, attorneys file oversized briefs at the last minute with a motion to permit the filing of a brief that violates the court rules that just dare the court to reject the brief and say "no." 

The passive-aggressive posture adopted by counsel that disrespects the court's case load.  A judicial officer has to manage his/er docket.  That is job number one.  Attorneys for a party must act ethically first, as the fiduciary to the client second, and to facilitate the court as a third priority.  I saw this in an order from the Eastern District of California last month, Salinas v. Colvin. 

The government attorney asked for a third extension of time to file a brief in opposition.  The court did not find good cause and took the matter under submission.  Judge Grossjean previously warned: "extensions based on demands of other cases are disfavored" and that "no further extensions will be permitted absent extraordinary circumstances." The court noted that the extension would put the matter 90 days behind schedule, did not articulate good cause, and got filed after the due date for the brief. 

Cuevas and Salinas may mark a turning point where the courts correct the relationship -- attorneys facilitate the courts' management of their docket; courts do not facilitate attorneys' management of time.  Some balance is in order but filing for a fat brief the day it is due or filing for a late brief after it was due are just disrespectful.  Rules matter, try to comply. 

The Limited Utility of Unpublished Opinions

In Garcia v. Commissioner, Judge Kozinski quipped to the hapless attorney, "I know how fond you are of unpublished dispositions."  In the published opinion, the court noted the prior unpublished opinion:

We recognize that our holding here is contrary to Andrade v. Commissioner of Social Security, 474 Fed.Appx. 642 (9th Cir.2012). We are not bound by our earlier decision. See 9th Cir. R. 36-3(a).

Judges Kozinski and Reinhardt addressed the problem of unpublished opinions in a piece originally published in the California Lawyer.  Please Don't Cite This.   Judge Kozinski wrote a history lesson on the advent of precedent in Hart v. Massanari.  Yep, same hapless attorney and the quip in Garcia reminded at least two people in the room about Hart.

But why the fuss about unpublished dispositions?  Because they lack the in depth discussion of the facts and the legal nuances.  The stuff that calls for the attorney to distinguish what happened before to what the court now considers -- legally and factually.  The law is contextual.  Using unpublished memoranda as the best persuasive argument is just poor lawyering.

So what is the value of the unpublished memorandum?  The memoranda give the legal kernels that point to the core of the issue.  Some of the facts might be there but the disposition is typically way too short to resolve the issue.  Go back to Please Don't Cite This and the decision in Hart to understand the reason why the courts don't have time for a precedential decision in every case.