Now You See Me, Now You Don’t: Due Process and Foreclosures

The Constitution grants us the right to due process where a property interest is at issue. Part-and-parcel of due process is the right to notice and to be heard. With regard to foreclosures of real property, the question becomes whether all owners must be given notice and a reasonable opportunity to be heard, right? Wrong. The due process requirements only apply to state actors. This distinction seems fairly clear when we think of big private banks like J.P. Morgan & Chase, and governmental entities like the the NYAG. But what happens when we enter that blurry area where a so-called governmental entity is hidden under a cloak of private participation?

The Cases

In 1995, in Lebron v. National R.R. Passenger Corp., the Supreme Court addressed this very issue. In determining a First Amendment violation claim, the Supreme Court established a two-prong test to determine whether a federal government corporation was a government actor. The two prongs are:

  1. The extent to which the corporation was formed for the furtherance of governmental objectives.
  2. The extent to which the federal government retains control over the corporation’s efforts to achieve its objectives.

The majority opinion, written by Justice Scalia, held

[W]here, as here, the Government creates a corporation by special law, for the furtherance of government objectives . . . the corporation is part of the Government for purposes of the First Amendment.

We faced a similar issue with Fannie Mae and Ginnie Mac. In 2008, both agencies were placed under the Federal Housing Finance Agency (FHFA) Conservancy. FHFA, although clearly a governmental entity under the first prong, operated in a way that made it difficult to establish control under prong two, since courts have argued its control is “merely the same control that Freddie Mac had before the conservatorship.”

Though many courts follow the Lebron test, others have created exceptions to the state action tests based on the interpretation of “control” in the second prong. For example, in Herron v. Fannie Mae, despite evident government control on behalf of Fannie, the court found that Fannie Mae was not a state actor because under the Lebron framework, permanent government control is required.”

Looking Forward

The lack of clarity regarding which entities can be established as state actors has led to widespread backlash.

In cases involving FHFA alone, mortgagors have begun challenging Fannie Mae and Freddie Mac foreclosures on due process grounds, arguing that these entities, as state actors, should have been enjoined from trying to execute power of sale foreclosures for lack of constitutional procedure.

Until the definition of “state actors,” for purposes of the due process clause, is established, foreclosed upon mortgagors will forever be in a state of limbo in guessing whether they will be given adequate notice and hearing procedures that they arguably should be entitled to.

For further reading, see the Emory Law Journal.

I’ll Be There For You . . . (If I Can Take Off Work): Courts Are Divided Over What “Caring For” Means Under the FMLA

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is a federal act enacted in 1993, ostensibly to encourage a work-family balance.

Under the FMLA, eligible employees are entitled to take up to twelve weeks of unpaid, job-protected leave for various family and medical reasons. Acceptable reasons for leave under the FMLA include: a serious health condition of the employee themselves, the birth of a child and/or to care for a newborn, the adoption of a child, and to care for the employee’s child, spouse, or parent who has a serious health condition.

The issue of what precisely constitutes “caring” for a family member is interpreted differently by various courts and, thus, the subject of this post.

The Split

A Broad Definition of Care

 In 2014, the Seventh Circuit Court was challenged to determine what exactly qualifies as “caring” for a family member under the FMLA. Ballard v. Chi. Park Dist.  (7th Cir. 2014).

In Ballard, the plaintiff-appellee, Beverly Ballard provided daily care of her mother, who suffered from end-stage congestive heart failure.  She received a grant to take her mother on a vacation to Las Vegas, something her mother wanted to do before she died. Ballard requested leave from Park District, her employer, in order to travel with her mother. Her request was denied.  She was later terminated for the absences she accumulated during her trip.

During the trip, Ballard provided basic medical, hygienic, and nutritional needs for her mother. She also took her to the hospital to receive pain medicine and insulin when they suffered a loss of this medicine due a fire at their hotel.

Despite her employer’s protests that routine care was not covered by the FMLA, the court held that:

[A]s the employee attends to a family member’s basic medical, hygienic, or nutritional needs, that employee is caring for the family member, even if that care is not part of ongoing treatment of the condition. Furthermore, none of the cases explain why certain services provided to a family member at home should be considered “care,” but those same services provided away from home should not be. Again, we see no basis for that distinction in either the statute or the regulations.

The Seventh Circuit’s holding, in essence, states the FMLA applies even when the employee accompanies the sick relative out of state—so long as the employee provides basic medical, nutritional, or hygienic care to the sick relative, the FMLA’s protections kick-in.

The Seventh circuit holding in Ballard directly contradicts the holdings of the First and Ninth Circuits, which determined that “care” for a family member had to be related to ongoing medical treatment.

A Strict Definition of Care

In the First Circuit, the court held that an employee who took leave to accompany her sick husband on a “healing pilgrimage” to the Philippines did not take a valid leave under the FMLA.  Tayag v. Lahey Clinic Hosp., Inc., (1st Cir. 2011).

Similarly, the Ninth Circuit held that an employee who flew cross-country to pick up a car and drive it back to his pregnant wife did not constitute valid leave under the FMLA. Because the care did not constitute the requisite  “level of participation in ongoing treatment of that condition,” the leave was invalid. Tellis v. Alaska Airlines, Inc., (9th Cir. 2005).

Looking Forward

This split is especially significant for employers, who should be aware of how the various circuits define “caring for” a family member. If the circuit uses a broad definition of care, in which the court examines the particular actions the employee took, then the employer opens themselves up to liability if they deny leave and take adverse action against an employee that then takes the leave anyway. For employees, the split is important to the extent that rights to unpaid leave under the FMLA depend on the federal circuit in which they work.

For further reading on the topic, see the University of Cincinnati Law Review or the employment law blog of Outten & Golden, LLP.

 

Notice Needed?: Courts Split on Evidentiary Notice for Asylum Proceedings

A circuit split has developed concerning whether applicants for asylum are required to receive notice of evidence needed for removal proceedings. The split centers on a provision of the Immigration and Nationality Act (INA) concerning burden of proof in granting asylum.

The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

8 U.S.C. § 1158(b)(1)(B)(ii).

The Law

Under the Immigration and National Act, the burden of proof is on the applicant to prove that removal will result in persecution based on the individual’s race, religion, or membership in a particular social group.

The core of the split concerns differing statutory interpretations of the above section, particularly the phrase, “where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided.”

Resolving this split is essential for two reasons: (1) it concerns constitutional issues of due process and (2) it concerns public policy as the Syrian refugee crisis could greatly increase the number of asylum applications processed. Therefore, it is essential to have a clear, uniform policy.

The Split

The Ninth Circuit has interpreted the statute as unambiguously requiring the Immigration Judge (IJ) to give notice to the applicant of evidence required for removal hearings.

A plain reading of the statute’s text makes clear that an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof.

Ren v. Holder (Ninth Circuit, 2011).

The court arrives at this interpretation primarily based on the statute’s use of the future tense.

 “Congress’s use of a verb tense is significant in construing statutes.” United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Here, the Act does not say “should have provided,” but rather “should provide,” which expresses an imperative that the applicant must provide further corroboration in response to the IJ’s determination. The applicant cannot act on the IJ’s determination that he “should provide” corroboration, of course, if he is not given notice of that determination until it is too late to do so.

Ren v. Holder.

In addition, the court considers the statute’s grammatical structure in determining Congressional intent.

Second, the grammatical structure of the controlling clause makes the provision’s meaning absolutely clear. The statute requires that corroborating evidence “must be provided” in the event that the IJ determines that it should be provided. Again, this language focuses on conduct that follows the IJ’s determination, not precedes it, as the phrase “must have been provided” would do, and as with the clause above, the statute’s future directed language means that the applicant must be informed of the corroboration that is required. Third, the statute goes on to excuse an applicant from satisfying the IJ’s request for corroboration if he “does not have the evidence and cannot reasonably obtain it.” This language is present-and future-oriented as well; the statute does not say “unless the applicant did not have the evidence and could not have reasonably obtained the evidence.” Therefore, if the IJ decides that the applicant should provide corroboration, the applicant must then have an opportunity to provide it, or to explain that he does not have it and “cannot reasonably obtain it.” It would make no sense to ask whether the applicant can obtain the information unless he is to be given a chance to do so.

Ren v. Holder,

In addition to textual interpretation, the court employs the canon of constitutional avoidance in construing the statute.

Moreover, even if the language had been ambiguous, the canon of constitutional avoidance requires us to come to the result discussed above. The canon “requires a statute to be construed so as to avoid serious doubts as to the constitutionality of an alternate construction.” Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir.2006). The REAL ID Act did not change our clear Fifth Amendment caselaw that requires a “full and fair hearing” in deportation proceedings. Campos–Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). We have previously observed that “demand[ing] [corroboration] immediately on the day of the hearing” would “raise [ ] serious due process concerns by depriving [an applicant] of his guarantee of a reasonable opportunity to present evidence on his behalf.” Marcos v. Gonzales,410 F.3d 1112, 1118 n. 6 (9th Cir.2005) A requirement that something be provided even before notice is given would raise even more due process concerns. This provides additional support for our interpretation of the statute, although we reiterate that the statutory text alone mandates our interpretation.

Ren v. Holder.

In contrast to the Ninth Circuit, the Sixth and Seventh Circuits have interpreted the statute as not requiring the IJ to give notice to the applicant of the evidence needed. The Seventh Circuit considers the statute itself provides notice to applicants of the evidence needed.

Finally, we add that the REAL ID Act clearly states that corroborative evidence may be required, placing immigrants on notice of the consequences for failing to provide corroborative evidence.

Raphael v. Mukasey (Seventh Circuit, 2008).

The court also considers the burden that requiring notice would have on the Department of Homeland Security.

To hold that a petitioner must receive additional notice from the IJ and then an additional opportunity to provide corroborative evidence before an adverse ruling, would necessitate two hearings-the first to decide whether such corroborating evidence is required and then another hearing after a recess to allow the alien more time to collect such evidence. This would add to the already overburdened resources of the DHS, and such an approach would seem imprudent where the law clearly notifies aliens of the importance of corroborative evidence.

Raphael v. Mukasey.

The Sixth Circuit, in the most recent decision of the three, elected to follow the Seventh Circuit’s interpretation over the Ninth Circuit’s interpretation.

The court challenged the Ninth Circuit’s “plain reading” of the statute,

This text does not suggest that the alien is entitled to notice from the IJ as to what evidence the alien must present. Even if it could be said that the statute is silent on the issue, and thus possibly could allow for such a construction (and we conclude it does not), it is plainly erroneous to say that the statute unambiguously mandates such notice.

Gaye v. Lynch (Sixth Circuit, 2015).

Looking Forward

This split is unlikely to be resolved until the appointment of a ninth justice to the Supreme Court. Immigration and asylum have been important issues in the 2016 presidential race. As statutory interpretation often divides the Supreme Court, it is unlikely a divided, eight-member Supreme Court will elect to review the split. Therefore, the next president is likely to appoint the justice that will make the final determination on whether applicants for asylum must be provided notice.

Ice, Ice, Baby!: A Split About Federal Jurisdiction in Expedited Removal Procedures

You Know What’s Coming…

Back to Regularly Scheduled Programming

Under the Immigration and Nationality Act, “any alien who is convicted of an aggravated felony at any time after admission is deportable.”

Non-citizens with legal status who are convicted of an aggravated felony are afforded a hearing before an Immigration Judge. They are allowed to plead their case and have their day in court.

For non-citizens without legal status, they undergo an expedited process of removal without a hearing. This expedited process is known as administrative removal.

Administrative Removal

In administrative removal, an Immigration and Customs Enforcement (ICE) Officer examines the evidence and determines whether or not the felony occurred. If the officer believes the evidence is lacking, then the non-citizen proceeds with regular removal proceedings in front of an Immigration Judge. If the officer believes the non-citizen committed the felony, the person is served a removal notice.

The non-citizen can challenge their aggravated felony determination through the agency or through the courts. However, this removal is not reviewable by an Immigration Judge. Instead, circuit courts have the jurisdiction to review administrative removal determinations.

Recently, however, there has been confusion within the courts about whether or not a circuit court has jurisdiction to hear a challenge when the non-citizen has not exhausted all the agency remedies.

Typically, a court may review a final order of removal against a non-citizen only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). When a non-citizen has an opportunity to raise a claim in administrative proceedings but does not do so, he fails to exhaust his administrative remedies as to that claim. See Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).

The question plaguing the circuit courts is whether the DHS’s expedited removal procedures allow aliens to contest only the factual basis for their removal, and not to raise legal arguments. If so, then a non-citizen has an arguable claim that he has not failed to exhaust his remedy; in other words, because there was no remedy to exhaust, the non-citizen is entitled to appellate review.

Circuit Split

In 2015, the Fourth Circuit set out to answer the question of whether a court has jurisdiction to hear a challenge when the non-citizen has not exhausted all agency remedies. Etienne v. Lynch.

In Etienne, the Fourth Circuit had to decide whether they had jurisdiction to hear a challenge from Etienne, a non-citizen from Haiti convicted of an aggravated felony, regarding his expedited removal procedure, when he had failed to challenge the legal basis of his removal before the agency.

According to the Fourth Circuit, the answer was: yes.

The Fourth Circuit held that the appellate courts do have the authority to consider an alien’s petition for review, even if they have not exhausted administrative avenues. The court reasoned that under the current immigration regulations, non-citizens can only challenge their aggravated felony convictions on factual findings. There is no avenue for a non-citizen to challenge their conviction on legal conclusions aside from the circuit courts. Therefore, the Fourth Circuit held that it was appropriate for the circuit courts to review administrative removal determinations. The Fourth Circuit supported their decision by citing the Fifth Circuit’s decision in Valdiviez-Hernandez v. Holder, where the Fifth Circuit also held that the circuit court had jurisdiction to review an expedited removal.

However, the Fourth Circuit’s decision in Etienne, and the Fifth Circuit’s decision in Valdiviez, directly contrasts with the Eleventh Circuit’s 2014 decision in Malu v. U.S. Attorney General.

In Malu, the Eleventh Circuit held that the court lacked jurisdiction because the non-citizen failed to exhaust the administrative avenues available within the agency. The Eleventh Circuit believed that the administrative proceedings did provide an opportunity for aliens to challenge factual allegations and legal conclusions. Therefore, it held that the circuit courts do not have jurisdiction to review until the alien has exhausted all available agency remedies.

Looking Forward

As stated prior, equality and predictability are essential to the law, particularly in the immigration context, where slight differences in law may be the difference between deportation and legal residency. Thus, as long as the courts remain divided about this question of federal jurisdiction, there will be inefficiency and injustice in the immigration system. While it seems unlikely that the Supreme Court will provide clarity on this issue any time soon, a resolution is necessary in order for the immigration system to not only run more effectively, but fairly and predictably—for all parties, in all locales.

Enough with the Ovoid Metaphors: Equitable Mootness and a Split about Unscrambling Eggs

Equitable mootness prevents an appellate court from reaching the merits of an appeal. Duff v. Cent. Sleep Diagnostics, LLC (7th Cir. 2015). It is a judicially created, prudential doctrine unique to bankruptcy appeals. Specifically, the doctrine applies to appeals from orders confirming chapter 11 reorganization plans (but the circuits are even split on that point). In re Cont’l Airlines (3d Cir. 1996).

Equitable mootness is not Constitutional (Article-III) or statutory mootness. In re UNR Indus., Inc. (7th Cir. 1994). Rather, as Judge Easterbrook recognized in In re UNR Indus., Inc., equitable mootness is an “unwillingness [to] alter the outcome.” (1994). In certain circumstances, the driving force is simply pragmatism. For example, the debtor’s reorganization plan may be near the end, and was so complex that to reverse the plan at such a late date would be impractical and inequitable. In re Manges (5th Cir. 1994). Doing so would cause harm to innocent third parties that relied on the finality of a chapter 11 confirmation order. In re Club Assocs. (11th Cir. 1992). To use the ovoid metaphors of which appellate courts are fond, appellate courts are not Humpty Dumpty repairmen and they cannot unscramble the egg. In re Tribune Media Co. (3d Cir. 2015); In re Cont’l Airlines (3d Cir. 1996).

Equitable Mootness in the Circuits

This doctrine has created controversy for four main reasons. First, the circuits do not apply a uniform test when determining whether an appeal is equitably moot. The Fourth, Fifth, and Sixth Circuits apply a four factor test; the Third and Tenth apply a five factor test; and the Second, Seventh, and Eleventh each have their own specific analyses. Second, the circuits cannot agree on a name for the doctrine, leading Judge Easterbrook to banish the term in the Seventh Circuit:

[T]he doctrine goes under the banner “equitable mootness,” but the name is misleading. There is a big difference between inability to alter the outcome (real mootness) and unwillingness to alter the outcome (“equitable mootness”). Using one word for two different concepts breeds confusion. Accordingly, we banish “equitable mootness” from the (local) lexicon. We ask not whether this case is moot, “equitably” or otherwise, but whether it is prudent to upset the plan of reorganization at this late date.

In re UNR Indus., Inc. (1994).

Third, despite the doctrine’s express limitation to complex reorganizations with intricate transactions, litigants have pressed, and appellate courts have applied, equitable mootness in appeals from relatively simple reorganizations, In re One2One Commc’ns, LLC (3d Cir. 2015) (Krause, J., concurring); liquidation plans, In re BGI, Inc. (2d Cir. 2014); and, as recently as October 3, chapter 9. In re City of Detroit, (6th Cir. 2016).

Fourth, and most importantly, equitable mootness is essentially a “super-finality” rule that binds an appellate court from exercising its jurisdiction—“[A] self-imposed straight jacket [that] contradicts [Article III courts’] virtually unflagging obligation to exercise the jurisdiction we have been given.” In re City of Detroit, (6th Cir. 2016) (Moore, J., dissenting).

This controversy came to a head in the later summer of 2015 when the Third Circuit’s Judge Cheryl Krause issued a call to arms against the doctrine. In re One2One Commc’ns, LLC (3d Cir. 2015) (Krause, J., concurring). In a separate concurrence that was double the length of the actual opinion she pronounced:

We must consider whether to end or endure the mischief of equitable mootness . . . [T]he doctrine has gone virtually unchallenged. This may be because litigants—and bankruptcy attorneys—wield the weapon of equitable mootness just as often as they suffer its blows. But it is time for the challenge, and I am not alone in urging it.

(3d Cir. 2015). Less than a month later, Judge Thomas Ambro wrote a concurrence in In re Tribune Media Co., that was essentially a reply brief to Judge Krause. (3d Cir. 2015) (Ambro, J., concurring). Judge Ambro, relying on the principle that bankruptcy courts are courts of equity, recognized that the equities of a situation sometimes take precedence over a meritous, even legally justifiable, appeal:

The doctrine of equitable mootness recognizes those few situations where the practical harm caused by granting relief would greatly outweigh the benefit. Discretion is no less appropriate in the plan confirmation context than in ordering other equitable remedies; hence we believe that the One2One concurrence’s formal challenge that equitable mootness lacks a basis in law misses the point that it is in the equitable toolbox of judges for that scarce case where the relief sought on appeal from an implemented plan, if granted, would leave the plan in tatters and/or bankruptcy battlefield strewn with too many injured bodies . . .  In a very few cases, shutting an appellant out of the courthouse does substantially less harm than locking a debtor inside.

Looking Forward

To date, the Supreme Court has declined to address equitable mootness three times. See Tribune (2016); BGI (2015); GWI, (2001). Yet given the implications the doctrine has and the lack of uniformity across the circuits, the Court must address this doctrine and provide guidance.

Deep in the Heart of Venue: A Patent Procedure Wrinkle

Before I begin, I should note that it is difficult to pinpoint circuit splits in the intellectual property context, particularly in patent law. Because of the highly specialized subject-matter jurisdiction of the United States Court of Appeals for the Federal Circuit (CAFC)—a court empowered to deal with patent matters from both the USPTO & the Federal District courts under 35 USC §141(a) and 28 USC §1295—the rulings released by CAFC are typically binding law, sans Congressional action in changing patent laws. South Corp. v. United States, (Fed. Cir. 1982). CAFC decisions are also not usually granted discretionary review by SCOTUS. Because of this specific scope of CAFC and its weight of authority in patent adjudication, there are often no real circuit splits that arise in patent law that are subject to SCOTUS review like in other areas of US law.

Nevertheless, internal splits do arise, and intellectual property is rife with authorities taking competing positions—particularly when IP law intertwines with other areas of law. This post highlights such a split. Let’s dive in.

What’s “Patent Venue”?

Within the volumes of Title 28 of the United States Code are the (in)famous provisions detailing how one invokes the jurisdiction of the US Federal Court system. While the fountainheads of federal question and diversity of citizenship under §1331 & §1332(a) are certainly important (and draw the ire of your 1L author), our super-juicy bit today centers on 28 USC §1400, which deals with Patent Venues.

Under §1400(b):

any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.

SCOTUS weighed in on this provision in Fourco Glass Co. v. Transmirra Products Corp. (1957), and held that §1400 is one of several special statutes not subject to the general venue provisions codified in §1391(c). Specifically,

The question is not whether §1391(c) is clear and general . . . [but] whether it supplements §1400 . . . . We think it is clear that §1391(c) is a general corporation venue statute . . . [and] the law is settled that ‘however inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment’ . . . . [As such], §1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and it is not to be supplemented by the provisions of 28 USC §1391(c).

The rule from Fourco is a relatively unambiguous rule for the world of patent litigation—that as a matter of procedure, the only statute that controls patent venue considerations is codified in §1400(b).

 Solo Split: The Federal Circuit, VE Holding, & TC Heartland

Despite the clarity of the venue provisions for patent litigation in §1400(b), CAFC threw a wrench into the mix with VE Holding Corp. v. Johnson Gas Appliance Co. (1990). The court deviated from SCOTUS’s bright-line test, applying some handy-dandy tools of statutory interpretation to hold that §1400(b) actually IS supplemented by §1391(c). Using both the textual context given by the 1988 revisions to §1391(c), and the clear lack of any expressed Congressional intent to maintain the exclusivity of §1400(b), the court held that §1400(b) is in fact modified by §1391(c). The court reasoned that:

[§1391(c)] as it was in Fourco is [gone, and] Congress could have easily added ‘except for §1400(b)’ . . . . The language of the statute is clear and its meaning is unambiguous . . . . The general rule that a specific statute is not controlled or nullified by a general statute regardless of priority of enactment, absent a clear intention or otherwise, does not govern the present situation. [§1391(c)] expressly reads itself into §1400(b)…[ §1391(c)] only operates to define a term in §1400(b) [nor does it conflict with §1400(b)]. Furthermore, even were the rule applicable . . . the language of the statute would reveal a ‘clear intention’ that §1391(c) is to supplement §1400(b).

In Kraft Food Group Brands, LLC v. TC Heartland, LLC (2015), the District Court of Delaware affirmed the holding in VE Holding Corp. This decision was ultimately affirmed by the CAFC in In re TC Heartland, LLC (2016). In both cases, TC Heartland argued that as part of the 2011 revisions to the US Code, the language in §1391(c) that CAFC relied on in VE Holding was changed, thus no longer modifying §1400(b). CAFC dismissed this in short order on TC Heartland’s appeal from Delaware, claiming that the changes made as part of the 2011 revisions were minor, and merely was a “broadening of the applicability of corporate residence, not a narrowing.” Further, the court assuming arguendo that Congress had intended to capture the meaning of the venue provisions in §1400(b), Fourco was not the precedent that Congress would have captured.

Looking Forward

What’s the Future for Patent Venues?

Based on this ruling by the CAFC, TC Heartland has begun the process of SCOTUS review, relying on the argument that CAFC has unilaterally overturned Supreme Court precedent in neglecting the holding of Fourco. As the amici briefs churn into the SCOTUS docket for this case, it raises the question of just where the Supreme Court will fall on this.

Given other SCOTUS decisions like Alice Corp. v. CLS Bank Int’l. (2014) and the affirmation of vague understandings of technology patents by both CAFC and SCOTUS, it is more than a little hazy as to where the Justices will stand on this question of patent venue provisions.

If the court chooses to side with CAFC’s cracking of the precedent in Fourco, it might be the case that more broad venue provisions would create a windfall for patent litigants who would gain the freedom to sue patent infringers anywhere that §1391(c) can be applied. However, if SCOTUS flexes its judicial muscle and overrules CAFC in favor of its 1957 holding in Fourco, we might just get another instance of an appeals court with a bit of egg in its face. Patent cases are a HUGE source of business for firms and agencies across the world, and this case has the potential to change the face of how patent litigation will be undertaken.

For further reading, see what firms Baker Botts and White & Case have to say on the matter.

Damned If You Do, Damned If You Don’t: The FDCPA, the Bankruptcy Code, and a Split on Time-Barred Claims

Filing a claim is one of the most basic components of bankruptcy law.  In fact, it’s the only way a creditor can hope to get their investment back in a bankruptcy proceeding.  But what if pursuing your legal remedy opened you up to liability?  Sounds like a catch-22 doesn’t it?  That’s the exact situation that the Supreme Court is about to decide.

What’s Going On

As we all know, bankruptcy is federal law.  However, the contract claims which fall under federal bankruptcy provisions are governed by state law.  These state law provisions provide for such things as enforceability, including when a debt is considered “stale” or the statute of limitations on its enforceability has run.

In addition to these state imposed limitations on debt collection, the federal government has a separate set of rules whose purpose is to protect debtors from unscrupulous debt collectors known as the Fair Debt Collection Practices Act (FDCPA).  One portion of this act bans the collection of stale consumer debts.

So What’s the Problem?

Even though stale debts are technically unenforceable, there is still a market for them.  Purchasers of stale debts hope for one of two outcomes.  That the debtor somehow see’s the light and voluntarily repays their remaining obligations or, the more likely outcome, the debtor files bankruptcy and the holder of the debt files a claim as a creditor in bankruptcy court.  Option two, however, comes with a bit of a problem: a stale claim is still a claim under the bankruptcy code, putting the bankruptcy code in direct conflict with the FDCPA by potentially allowing a creditor to collect on a stale debt.

The Split

Currently, the courts are split over how to resolve this clash between the bankruptcy code and the FDCPA.  The split revolves around whether the bankruptcy code preempts the FDCPA or whether both can apply to a creditor at the same time.  In essence, bringing around the hypothetical posed at the beginning of this article.

(Some history before we dive in. The Eleventh Circuit, in the opinion described below, was responding to some confusion sowed after a prior ruling in Crawford v. LVNV Funding, LLC. In Crawford, the Eleventh Circuit held that the FDCPA applied to a Chapter 13 claim filed for a time-barred debt. The Supreme Court denied cert. District courts, in the wake of Crawford, stated the FDCPA and the bankruptcy code were in irreconcilable conflict and, under a doctrine termed implied repeal, held that the bankruptcy code preempted FDCPA claims. Johnson reversed that holding, reinstating the Crawford regime that held the FDCPA applied to claims for stale debts.)

In Johnson v. Midland Funding, the Eleventh Circuit found that the two statutes were not irreconcilably different, and that the FDCPA is violated when a creditor files a claim on a time-barred debt. The Eleventh Circuit reasoned that:

The Code establishes the ability to file a proof of claim, see11 U.S.C. § 105(a), while the FDCPA addresses the later ramifications of filing a claim, see Crawford, 758 F.3d at 1257.

The Eighth Circuit on the other hand came to the opposite conclusion, finding that the bankruptcy code and FDCPA are in direct conflict, and that the filing on a time-barred debt is not barred by the FDCPA.  In making its decision, the Eighth Circuit noted that due to the special protections afforded to debtors in bankruptcy, the concerns for which the FDCPA was originally enacted are not present.  Stating:

These protections against harassment and deception satisfy the relevant concerns of the FDCPA. “There is no need to protect debtors who are already under the protection of the bankruptcy court, and there is no need to supplement the remedies afforded by bankruptcy itself.” Simmons v. Roundup Funding, LLC, 622 F.3d 93, 96 (2d Cir. 2010) (so stating while rejecting an FDCPA suit even where the proof of claim was inaccurate and inflated).

The ultimate decision reached by the Eighth Circuit was also reached by the Fourth and Seventh Circuits, albeit for slightly different reasons.  But the underlying thread between the decision was the extra layer of protections afforded do debtors in bankruptcy.

I’m Not Broke (Yet), Why Should I Care?

The outcome of this circuit split will have large implications not only for the creditors filing these stale claims but also for the debtors.

If the Eleventh Circuit’s reasoning is followed, then not only will creditors miss out on an opportunity to be repaid, but the debtor will now have a civil cause of action against the holder the debt.

On the other hand, if the Fourth, Seventh, and Eighth Circuits are followed, holders of time barred debt will be able to continue to assert claims and hope to receive payment.  And if this riveting split wasn’t reason enough to follow this case, the Supreme Court just granted cert to Johnson v. Midland.

A Split that Splits: Moral Turpitude in the Circuits

Imagine: you’re a non-citizen sitting before an immigration judge, waiting to hear if the burglary you just committed means you’re going to be deported.  Then imagine your lawyer told you your chances of deportation hinge on how the immigration judge defines “moral turpitude.”

I know, right?

“Moral Turpitude”

It sounds bad, huh?  Well, it’s not “meaningless,” as Judge Posner of the Seventh Circuit claimed.  Arias v. Lynch (2016).  Rather, it has many meanings, depending on which federal circuit court of appeals you ask.  Everyone recognizes that immigration law is hard.  It’s hard because you’re dealing with humans and oftentimes making decisions that have profound effects on the lives of these humans. (Thank goodness other practices of law don’t have these issues, too.)

It’s very important that our courts come to a consensus about what exactly moral turpitude means.  A lack of agreement means that a non-citizen in Illinois might be deported for the same crime that a non-citizen in Texas wasn’t deported for.  This is kind of a big deal, constitutionally speaking, because due process, equal protection, life, liberty—I think you get the point. 

The Split

The circuits are split between a two-step test and a three-step test.

The Third, Fourth, Fifth, Ninth, and Eleventh Circuits follow the two-step test, as described in Prudencio v. Holder (4th Cir. 2012):

  • (1) “[W]e first apply the categorical approach…This analysis requires that we examine the statutory elements of the crime, and not consider the facts or conduct of the particular violation at issue.”
  • (2) “[If] the categorical approach does not resolve our inquiry… we proceed under the modified categorical approach… Under the modified categorical approach, we review the record of conviction to determine whether the crime of which [the defendant] was convicted qualifies as a crime involving moral turpitude.”

The Seventh and Eighth Circuits follow the three-step test, as descried in Mata-Guerrero v. Holder (7th Cir. 2010):

  • (1) “First, the immigration judge should focus on the statute’s actual scope and application and ask whether, at the time of the alien’s removal proceeding, any actual (not hypothetical) case existed in which the statute was applied to conduct that did not involve moral turpitude, including the alien’s own conviction….
  • (2) “If that evaluation of a “realistic probability” does not resolve the question, the judge should proceed to a “modified categorical” approach, examining the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or a guilty plea transcript….
  • (3) “Then, where those records of conviction also fail to shed light on the question, the Attorney General instructs that the immigration judge should consider any evidence beyond those records “if doing so is necessary and appropriate to ensure proper application of the Act’s moral turpitude provisions.”

Why This Matters

For non-citizens, this split can be the difference between staying in the country or being deported. Consider the Arias case linked above. In the case, the non-citizen was charged with falsely using a social security number in order to find work. The Seventh Circuit had not decided prior whether such a violation constituted moral turpitude. It noted, however, that the circuits were split on the matter:

The Fifth and Eighth Circuits have said yes (including opinions regarding the closely related subparagraph, § 408(a)(7)(A)). Guardado‐Garcia v. Holder, 615 F.3d 900, 901–02 (8th Cir. 2010); Lateef v. Department of Homeland Security, 592 F.3d 926, 929 (8th Cir. 2010) (§ 408(a)(7)(A)); Hyder v. Keisler, 506 F.3d 388, 392 (5th Cir. 2007) (§ 408(a)(7)(A)). The Ninth Circuit has said no. Beltran‐Tirado v. I.N.S., 213 F.3d 1179, 1184 (9th Cir. 2000).

Circuits are split not just on how to define moral turpitude, but on what crimes even constitute moral turpitude. This is an obvious consequence of a system of law that requires a phrase as empty as “moral turpitude” to bear a Sisyphean load. And remember: the Fifth and Ninth Circuits use the same test to define moral turpitude—that those circuits cannot decide on what crimes constitute moral turpitude underscores just how entangled and ill-defined the law has become.

Looking Forward

For a legal system that fetes both equality and predictability, the fact that neither non-citizens nor the State knows what the exact consequences are when a crime is committed is nonsensical and illogical. Non-citizens should have the heads up as to what will occur if they commit a crime.  Part of this includes defining, once and for all, what our law means by “moral turpitude.” And, if we can’t, maybe it’s time we cut the turpitudinous knot.

Vacating Your Arbitration Award: A Split About Access to Federal Courts

When a case litigated in court goes horribly wrong, there’s a clear remedy: appeal. But, what happens when your case goes not through court, but arbitration, and the proceedings are grossly unfair? You cannot appeal: that would seriously undermine the purposes of arbitration, to provide a fast resolution of a case at a cheaper cost than litigation. There is only one possible escape hatch: federal law provides that, in a limited set of very unfair situations, you can ask a court to vacate or modify the arbitrator’s award.

But if you bring this petition in federal court, another obstacle lurks in the background: the federal court’s subject-matter jurisdiction to even consider a petition to vacate. A new circuit split has popped up on that question.

Background

The Federal Arbitration Act, passed in 1925, controls arbitration proceedings nationwide. Prior to its passage, arbitration agreements weren’t always enforceable. The Act, however, is binding on all agreements to arbitrate nationwide (no matter what state law says) via the Supremacy Clause of the Constitution. Broadly speaking, the FAA says that (1) if you enter into an agreement to arbitrate disputes, then you have to arbitrate disputes; and (2) the award your arbitrators give is enforceable via converting it into a judgment of a court (which judges are almost always required to enter).

There are only six circumstances where judges can mess with the results of arbitration. Section 11 of the FAA provides two situations that allow an award to be modified. The other four situations, copied from § 10 of the FAA, allow the award to be completely vacated:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

And that’s it.

Is There Federal Subject-Matter Jurisdiction?

Now, the jurisdictional problem.

We all know from civil procedure and federal courts that each claim in a federal case must be supported by federal subject-matter jurisdiction—usually § 1331 “federal question” jurisdiction or § 1332 “diversity” jurisdiction—or it cannot be heard in federal court. But, even though § 10 of the FAA is federal law, the Supreme Court has held that § 10 “does not create any independent federal-question jurisdiction under 28 U.S.C. § 1331 or otherwise.” Moses H. Cone Mem’l Hospital v. Mercury Constr. Corp. (1983).

This, by the Court’s own admission, makes § 10 an “anomaly” among federal statutes. Id. And it seriously jeopardizes a party’s ability to bring a § 10 petition in federal court after something goes wrong.

One more thing before we reach the circuit split. The Supreme Court in Vaden v. Discover Bank (2009) addressed federal jurisdiction over petitions brought under a different portion of the FAA, § 4. That section allows a party to ask a court to enforce an agreement to arbitrate disputes. Typically, a party who is sued in court will be demanding that the dispute has to be resolved in arbitration because the parties agreed ahead of time by contract to submit all disputes to arbitration.

Vaden says a § 4 petition itself does not have to be supported by federal jurisdiction. Instead, the court can “look through” the § 4 petition to the underlying dispute; if the federal courts would have jurisdiction over the underlying dispute, they can hear the § 4 petition.

The Court’s holding is textual. The language of § 4 provides that the party wanting to compel arbitration “may petition any United States district court which, save for such agreement [the agreement to arbitrate all disputes], would have jurisdiction” over the dispute.

The Circuit Split: Third, Seventh, and D.C. vs. Second

Now, the split.

In 1996 and 1999, respectively, the Seventh Circuit and D.C. Circuit held that petitions to vacate arbitral awards under § 10 must be independently supported by federal subject-matter jurisdiction.  The courts cannot “look through” the petitions to see if they would have had subject-matter jurisdiction over the underlying case. That’s because § 10 doesn’t have the language quoted above from § 4, and because of the purpose of the FAA: as the Seventh Circuit wrote, “The central federal interest was enforcement of agreements to arbitrate, not review of arbitration decisions.”

This year, the Third Circuit joined the Seventh and D.C. Circuits, writing that Vaden didn’t change anything about the analysis for § 10:

Neither the textual nor practical considerations noted by the Court in Vaden apply in a case relying on § 10 of the FAA. Section 10 lacks the critical ‘save for such agreement’ language that was central to the Supreme Court’s Vaden opinion. It provides that ‘the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration….’ 9 U.S.C. § 10. There is no reference to the subject matter of the underlying dispute. Thus, while § 4 calls for a court to consider whether it would have jurisdiction over the ‘subject matter of a suit arising out of the controversy between the parties,’ § 10 makes no such demand.

The Second Circuit, however, created a circuit split in Doscher v. Sea Port Group Securities, LLC, handed down this August just 11 days before the Third Circuit’s decision.

The Second Circuit said Vaden did change the analysis for § 10, because the FAA can’t expand federal jurisdiction, and if Vaden found federal subject-matter jurisdiction under § 4 without expanding federal jurisdiction, that must mean the “look through” approach is implicitly authorized for the other sections of the FAA:

[T]he necessary result of limiting the look-through approach solely to § 4 petitions is to conclude that the same dispute between the parties would be sufficient to confer § 1331 jurisdiction for the purposes of § 4 petitions but insufficient to confer § 1331 jurisdiction for the purposes of any of the Act’s other remedies. That is simply not logically possible without construing § 4 to expand federal jurisdiction—a conclusion the Supreme Court has expressly forbidden us to draw.

The Second Circuit’s reasoning—a close read of the principles laid out in Vaden—is, by its own admission, “complicated.” But it’s also purposive. The Second Circuit disagreed with the quotation above from the Seventh Circuit that the text of the FAA only gives “look-through” federal subject-matter jurisdiction in § 4 petitions:

[T]here is a certain absurdity to an interpretation that permits parties to file motions to compel arbitration in any case where the underlying dispute raises a federal question but precludes them from seeking the same federal court’s aid under the Act’s other remedial provisions related to the same dispute . . . . If enforcement were Congress’s only goal, however, it would have had no need to pass §§ 10 or 11 at all.

Looking Forward

Ultimately, parties can always bring § 10 petitions in state court, but a resolution of this circuit split will be necessary if we are to know whether federal courts can hear § 10 petitions.


*Thank you to Professors Phillip Armstrong and John Allgood for sending us this interesting split.

Just One-Day-Late: A Split On Filing Deadlines

It’s always a terrible feeling to be late. It can incite panic as you rush to finish a task. Being late by just one day has disqualified mayoral and Presidential candidates from making it onto the ballot. In the bankruptcy context, being a day late can prevent you from escaping from sizable debts. If only you had one day more!

The “One-Day-Late” Rule

The First, Fifth, and Tenth Circuits have developed the so-called “one-day-late rule,” prohibiting the discharge of a tax debt with respect to which a tax return was filed merely one day late.

The impact is significant. Imagine: you declare bankruptcy, hoping to have a fresh start, only to discover that twenty-four hours and a few clicks, (maybe some licks of an envelope), is all that prohibits you from financial relief. (Read this link for a more practical explanation of how the one-day-rule impacts financial relief. Beware: there are, like, numbers and stuff.)

The courts behind the “one-day-late rule” developed it from case law, statutes, and two particular provisions of the U.S. Bankruptcy code, §§ 523(a)(1)(B)(i) and 523(a)(1)(B)(ii).

Combining the relevant sub-levels of § 523 produces a relatively succinct summary of the background law:

A discharge under . . . this title does not discharge an individual debtor from any debt for a tax or a customs duty with respect to which a return, or equivalent report or notice, if required, was not filed or given or was filed or given after the date on which such return, report, or notice was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition.

Thus, a tax-debt is nondischargeable if it is both filed late and filed within two years of the petition. A lot of the action revolves around whether the late filing is a return. If so, and if filed two years before the filing, then the debt is dischargeable. If, however, the tax filing is construed not to be a return, the debt is non-dischargeable.

What’s In A Name?

Complicating matters is the “hanging paragraph” 523(a)(*). The hanging paragraph defines “return” as a return that satisfies the requirements of “applicable nonbankruptcy law.” Accordingly, courts refer to applicable nonbankruptcy law in order to determine whether a debtor’s debt is to be barred or discharged.

The leading test defining what is or is not a return is termed the “Beard test. The test, which arose in the tax context, has four elements, with much of the action revolving around the third element: “[T]here must be an honest and reasonable attempt to satisfy the requirement of tax law.” (This was the only element at dispute in the Tenth Circuit case linked above. Also, a brief note on ordering. The original articulation of the Beard test siloed “honest and reasonable” as the third prong of a four-part test. Some courts, notably the Eleventh and Seventh, state the above element is the “fourth” element in the Beard test. Some still cite it as the third. There is no actual difference. Kooky courts! They look so alike, but they’re so different!)

With respect to the one-day-rule, the courts hold that tax forms filed after the IRS assesses liability do not have a valid purpose, and therefore do not satisfy the Beard test. Because the post assessment filings are per se not “honest and reasonable” attempts to satisfy the requirements of tax law—which requires that returns shall be filed on a certain date—the filing is not a return for purposes of dischargeability.

Although the Tenth Circuit in In Re Mallo quibbled with the use of the Beard test, it functionally reached the same result by construing the phrase “applicable filing requirements” in the hanging paragraph to include filing deadlines (thereby obviating the need to even use the Beard test in the first instance).

The result—either via the Tenth Circuit’s reasoning or a straightforward application of the Beard test—is often the same:

We agree with these decisions and hold that, because the applicable filing requirements include filing deadlines, § 523(a)(*) plainly excludes late-filed Form 1040s from the definition of a return.

The Fifth Circuit held the same in a prior case, reasoning not under Beard, but under the applicable filing requirements strain of logic.

The IRS has rejected this approach, and the Eleventh Circuit and the Ninth Circuit Bankruptcy Appellate Panel have refused to adopt it and suggested that it is incorrect. (I should note that, while the IRS has rejected the approach, it has not rejected the result. As the Tenth Circuit said in Mallo: “Even though the IRS interpretation results in the same outcome as our reading of Section 523(a) under the present facts, it is analytically incompatible with and would render our analysis of the hanging paragraph irrelevant . . . .”)

Justice Approach

The Eleventh Circuit’s decision in Justice v. US typifies the opposite side of the split.

Here, the Plaintiff-Appellant declared Chapter 7 bankruptcy in 2011 and sought to discharge his federal income tax liability for 2000-2003, despite having filed taxes for that time period many years late.

The Eleventh Circuit assumed arguendo that the one-day-late rule was incorrect and applied four factors from Beard v. Comm’r of Internal Revenue  to determine if the Plaintiff-Appellant’s tax returns from 2000-2003 satisfy “the requirements of applicable nonbankruptcy law.”

The Eleventh Circuit joined the IRS and the Fourth, Sixth, Seventh, and Ninth Circuits to hold that determining “an honest and reasonable attempt” requires analysis of the entire time frame relevant to the taxpayer’s actions. The Eighth Circuit, as well as a dissent in the Seventh Circuit by Judge Easterbrook, argue that only the time frame in which the belated return itself is filed should be examined.

Looking Forward

These split(s) are difficult. Does a late filing render a debt non-dischargeable? Courts seem to say yes, but why? Is it because the filing no longer qualifies as a return? That’s what Beard and its progeny suggest. Is it because the one-day-late rule bars a filing from qualifying as a return? That’s what the First, Fifth, and Tenth circuits suggest (see Mallo). And what to make of the fourth (third?) Beard prong? Do we examine whether a taxpayer was honest and reasonable with respect to whether they filed on time? Or does the Eighth Circuit (and Easterbrook) have a better take on the issue?

In 2015, the Supreme Court had the opportunity to resolve the split, but denied certiorari to the 10th Circuit’s decision in Mallo v. IRS.

Someday, we’ll get the right answer—let’s just hope it’s not a day too late.