Circuit Judge, I believe.What do the Ch. J and C.JJ mean?
Chief justice and ?
What you're going to learn is that over 90% of the time each of the judges had heard one of these cases: (1) he has affirmed the District Court; (2) the arbitrator's award is confirmed; (3) the decision came in the form of a summary order. This case is going to be in the 10% in at least one of those three categories.Seems like good news. About as labor friendly as you can hope for from a political appointment standpoint. Having said that, I know nothing of their views from the bench. I'm guessing its a few hours before we get some twitter confirmation on past rulings involving labor matters.
Argued by Kessler. Interesting decision, in which it addresses the underlying issue of partiality, which Kessler has not pushed too much because the CBA seems to consent to a level of partiality. A prior case between the lawyer and the judge can spur a better discusson, so I wonder whether Kessler can build this up a bit. Parker's decision essentially allows a standard below actual partiality, and that evidence of steps not to disclose/investigate bias can be used as evidence of such bias.
Unlike a judge, who can be disqualified "in any proceeding in which his impartiality might reasonably be questioned," Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 332-33 (1987) (emphasis added), an arbitrator is disqualified only when a reasonable person, considering all of the circumstances, "would have to conclude" that an arbitrator was partial to one side,Morelite, 748 F.2d at 84 (emphasis added).
An arbitrator who knows of a material relationship with a party and fails to disclose it meetsMorelite's "evident partiality" standard: A reasonable person would have to conclude that an arbitrator who failed to disclose under such circumstances was partial to one side.
JHowever, as Commonwealth Coatings and Morelite make clear, subjective good faith is not the test. Once the arbitrator was aware that a nontrivial conflict of interest might exist, the calculus changed. A reasonable observer attempting to assess whether evident partiality existed would, we think, be given pause by a number of significant facts:
Brady doesn't fit neatly into this model, which is presumably why Kessler did not push this argument much, other than on the issue of Goodell's delegation of authority. Yet, knowing you have Parker, the author, on this Panel may allow him to push the point more, and ask the Court to affirm because even though Roger was not necessarily partial, his refusal to allow inquiry into the delegation (Via the privilege claim on the Wells investigation) might be seen as bias by an reasonable party. In effect, its not the bias, but the refusal to allow inquiry into a bias, that satsifies the standard.ustice White's statement that "arbitrators are not automatically disqualified by a business relationship with the parties before them if both parties are informed of the relationship in advance, or if they are unaware of the facts but the relationship is trivial," Commonwealth Coatings, 393 U.S. at 150, 89 S.Ct. 337 (White, J., concurring) (emphasis added), arbitrators must take steps to ensure that the parties are not misled into believing that no nontrivial conflict exists. It therefore follows that where an arbitrator has reason to believe that a nontrivial conflict of interest might exist, he must (1) investigate the conflict (which may reveal information that must be disclosed under Commonwealth Coatings) or (2) disclose his reasons for believing there might be a conflict and his intention not to investigate.
As a general matter, probably not. He will be the presiding judge on the panel, so he'll sit in the middle and get to choose who gets to write the opinion (if he's in the majority). I don't know the particular practice of the 2d circuit, but its quite possible that the judges won't talk about the merits until after the argument when they take their initial vote and make the writing assignment (even though they have known they were on this panel for 8 weeks or so, and even though, individually, they are already pretty sure how they'll vote.)
Generally runs the show and sets the tone. Katz is businesslike and results oriented; leave the performance art at home.
As a member of the non-legal contingent, can you explain what unpublished/published and down the line consequences are about? I can't follow you here.Had a unanimous (unpublished) victory in hand a couple days later.
That was his way of saying, I don't care if this bothers you. This is the right result. If you are worried about down the line consequences, don't. We won't publish, and I don't want any dissents.
So if the clerks are Jets fans...I will say that even as an extern and a 3L, I had enormous independence in his chambers to write opinions, even on at least one criminal matter. I don't remember him reading the appendices, briefs or cases, so much as just reading my bench memo, asking me some questions, and then telling me to write it up. Then again, I wasn't getting the most important or complicated cases, so that may be part of it, but I remember his clerks also saying he was very hands off.
Keep in mind, too, Katzmann is a feeder judge, meaning his clerks often end up on the Supreme Court, so these are going to be sharp cookies who have an eye on their future. Plus, I'll add that Katzmann is very careful and concerned about is legacy; he's not going to goof or be hands off on a case with national attention.As a member of the non-legal contingent, can you explain what unpublished/published and down the line consequences are about? I can't follow you here.
So if the clerks are Jets fans...
At the same time, though, while the case has national attention, it is not, from a legal perspective, a significant case.Keep in mind, too, Katzmann is a feeder judge, meaning his clerks often end up on the Supreme Court, so these are going to be sharp cookies who have an eye on their future. Plus, I'll add that Katzmann is very careful and concerned about is legacy; he's not going to goof or be hands off on a case with national attention.
"Published" literally means published in the Official Reports , which you've probably seen as background in any number of TV shows. Those books have nothing but judicial opinions in them.As a member of the non-legal contingent, can you explain what unpublished/published and down the line consequences are about? I can't follow you here.
Back in the day -- like before Lexis and Westlaw were dominant forces -- if an opinion was unpublished, it almost literally could not be found, unless you somehow knew about it and went to the courthouse to get a copy.
This is from Wikipedia, but is nonetheless accurate:
For practical purposes:In each state of the United States, there are published reports of all cases decided by the courts having appellate jurisdiction going back to the date of their organization. There are also complete reports of the cases decided in the United States Supreme Court and the inferior federal courts having appellate jurisdiction since their creation under the United States Constitution. The early reporters were unofficial as they were published solely by private entrepreneurs, but in the middle of the 19th century, the U.S. Supreme Court and many state supreme courts began publishing their own official reporters.
In the 1880s, the West Publishing Company started its National Reporter System (NRS), which is a family of regional reporters, each of which collects select state court opinions from a specific group of states. The National Reporter System is now the dominant unofficial reporter system in the U.S., and some smaller states have discontinued their own official reporters and certified the appropriate West regional reporter as their official reporter. West and its rival, LexisNexis, both publish unofficial reporters of U.S. Supreme Court opinions. West also publishes the West American Digest System to help lawyers find cases in its reporters. West digests and reporters have always featured a "Key Numbering System" with a unique number for every conceivable legal topic.
The U.S. federal government does not publish an official reporter for the federal courts at the circuit and district levels (the sole exception is the D.C. Circuit). However, just as the UK government uses the ICLR reporters by default, the U.S. courts use the unofficial West federal reporters for cases after 1880, which are the Federal Reporter (for courts of appeals) and the Federal Supplement (for district courts). Both the Federal Reporterand the Federal Supplement are part of the NRS and include headnotes marked with West key numbers. For cases prior to 1880, U.S. courts use Federal Cases. West's NRS also includes several unofficial state-specific reporters for large states like California. The NRS now numbers well over 10,000 volumes; therefore, only the largest law libraries maintain a full hard copy set in their on-site collections.
Some government agencies use (and require attorneys and agents practicing before them to cite to) certain unofficial reporters that specialize in the types of cases likely to be material to matters before the agency. For example, for both patent and trademark practice, the United States Patent and Trademark Office requires citation to the United States Patents Quarterly (USPQ).
Today, both Westlaw and LexisNexis also publish a variety of official and unofficial reporters covering the decisions of many federal and state administrative agencies which possess quasi-judicial powers. A recent trend in American states is for bar associations to join a consortium called Casemaker. Casemaker gives members of a state bar access to a computerized legal research system.
The ruling in my case was a 9-page Summary Order. The first sentence says, in bold:
Initially, it would be the judge (if in District Court), or the panel (if the court of appeals probably at the suggestion of the writing judge) But there are times when the West folks ask the judge to officially publish something that the judge had originally declined to do.
There is some inexact language in your explanation that I've tried to fix. Whether a case has precedential value has not been changed by Rule 32.1. The rule simply stops courts from preventing parties from citing these cases whatsoever. Every COA remains free to give whatever precedential value it chooses (i.e. none or non-binding in every case I'm aware of) to unpublished decisions. Also, it was never a universal rule that such cases couldn't be cited; as they became available, courts addressed how they could be used, and most permitted them to be cited as persuasive authority in some form. The courts that didn't we considered "important" courts, though -- the 2nd, 7th, 9th, and Fed Circuits.***
For a long timeFor some years, in a minority of jurisdictions, only published cases had precedential valuecould be cited for any purpose.-- that is, unpublished cases werent allowed to be cited by parties in future cases.That changed in 2009 when the Federal Rules were changed to uniformly permit citation of unpublished cases issued in 2007 or later in all federal appellate courts. The new rule does not affect the precedential value of such cases or dispositions.
Over the years, the distinction between published and unpublished has blurredt, because almost all "unpublished" opinions can be found on Lexis or Westlaw. So the usual course was that the lawyer found an unpublished opinion that supports his case, and then went to the cases that case cites to get his support.
Back in the day -- like before Lexis and Westlaw were dominant forces -- if an opinion was unpublished, it almost literally could not be found, unless you somehow knew about it and went to the courthouse to get a copy.
Thanks for clearing that up. I was imprecise on the cite vs precedent distinction. When it first mattered to me (late 80s or so) I was unaware of any federal court that allowed even citation except in very limited circumstances, and not without the permission of the court.There is some inexact language in your explanation that I've tried to fix. Whether a case has precedential value has not been changed by Rule 32.1. The rule simply stops courts from preventing parties from citing these cases whatsoever. Every COA remains free to give whatever precedential value it chooses (i.e. none or non-binding in every case I'm aware of) to unpublished decisions. Also, it was never a universal rule that such cases couldn't be cited; as they became available, courts addressed how they could be used, and most permitted them to be cited as persuasive authority in some form. The courts that didn't we considered "important" courts, though -- the 2nd, 7th, 9th, and Fed Circuits.
Mahoney goes on to detail how he believes Berman fumbled.Labor law is unique. Consider the following. Here is the federal labor law standard that governs a court’s review of a labor arbitrator’s opinion: Even if the court finds that the arbitrator made a mistake of fact (e.g., heard the witness wrong) and even if the judge concludes that the arbitrator made a mistake of law (e.g., misapplied rules of contract interpretation), the reviewing court still must uphold the arbitrator’s decision so long as that decision “draws its essence from the collective bargaining agreement.” Read that part of the previous sentence again, and keep that in the front of your mind. It reflects an overarching principle in the federal law governing labor arbitration — arbitrators, not courts, should decide the case.
The sole job for the court (Judge Berman in the first instance in the Deflategate case) is to determine if Roger Goodell exceeded the authority granted to him by the agreement. Goodell did not. The only individual who exceeded his authority in this case was Berman, and the Second Circuit will soon correct his error.
Why? Why should we rehash things that were already discussed four months ago because some guy in a tabloid paper says something about them?Agree that he's not an expert but a few lines about why you think he's wrong would be more illuminating, in my view, than that post.
It's not really a big deal or difference. They're referring to the LMRA because it's directly applicable, but the standards aren't significantly different than those of the FAA. Which is to say, their argument is not primarily that the district court messed up because it applied the FAA standards and not the LMRA standards. In fact, they put that argument in a footnote, and argue that Berman was wrong under either.
Clement noted, however, that Kessler initially took the position that the Equipment violation rule did not cover the conduct alleged.Appellees insist that because the conduct at issue involved game balls, the Commissioner was constrained to impose only a fine under
the player policy for “Uniform/Equipment Violations.” And they repeatedly fault the Commissioner for “not even acknowledg[ing]” the Uniform Policy in his final
decision. Appellees’ Br. 38.
This mirrors the broader discussion on this board about whether the Commish could find that tampering with a ball goes to the integrity of the game, and therefore constituted a further offense.But Appellees fail to mention a fatal flaw in their argument: The Commissioner did not address the Uniform Policy in his decision because both
parties took the position that the policy was inapplicable. Indeed, in proceedings
before the Commissioner, Appellees affirmatively stated that the policy does not
cover Brady’s conduct because balls are not part of the uniform or equipment worn
by players. Specifically, in his opening statement, Appellees’ counsel said that they
“don’t believe [the uniform] policy applies ... because there is nothing here about
the balls.” JA955-56. No one disagreed—for the understandable reason that, as
explained below, the policy plainly does not apply to game balls.
Not a lawyer, but I found this fairly compelling as to how Clement really didn't knock Kessler off his point.Very briefly, why Brady faces an uphill fight. Brady's first and main argument is notice, contending that Commissioner was restricted in punishment by the penalties agreed upon by the union and league.
Clement noted, however, that Kessler initially took the position that the Equipment violation rule did not cover the conduct alleged.
This mirrors the broader discussion on this board about whether the Commish could find that tampering with a ball goes to the integrity of the game, and therefore constituted a further offense.
We've discussed the difficulties Kessler will face explaining why he now believes the Equipment violation provision is the exclusive punishment (pre-empting other punishements) after having initially told Goodell the Equipment violation rule didn't even apply to psi violations.
I think Clement knocked Kessler off his spot on that first argument, so Kessler will have to prevail on two other issues. The first is somewhat related, namely the fact that Brady was not given notice before the hearing of what he was charged with. Moving from the generally aware to the participated in theory was prejudicial. I don't know, however, whether this would get Brady much relief, or whether this would lead to a remand.
Second, the discovery issue, and how Brady was precluded from discovery into Wells/Pash's communications. I would tie this to the bias point, as held in the earlier Kessler/Parker decision, as the arbitrator precluding inquiry into communications between his office and the fact finder suggests bias (at least within the 2d Cir's test). I suspect this is where Kessler will make most of his headway with the Panel. It will be interesting to see how he quickly moves off the first argument.... perhaps the Panel will take him there.
andAt first you might think Kessler is being inconsistent here – that he’s arguing A) that the policy doesn’t apply, and B) if it does apply only a fine is appropriate. And you’d be correct that these are two mutually exclusive positions. However, it’s important to note that this sort of argumentation is standard legal practice, often called pleading in the alternative. In the legal realm, there’s nothing wrong with putting forth two alternative defenses on one’s behalf, even if they might be inconsistent with one another.
So in August, its first chance to really argue before Judge Berman, the NFL conceded that 1) the NFLPA argued before Goodell that the equipment policy applied, and 2) the NFLPA argued before Judge Berman that the equipment policy applied. The argument remained the same at oral arguments before Berman. Here’s the transcript of an exchange between Berman and Kessler from the August 19, 2015 hearing:
The link goes into a further discussion of the points around this argument and why it really isn't that hard of a slam by Clement.So why exactly is the NFL making this argument? It seems clear that from the beginning the NFLPA has argued that if any policies apply to what Brady did, the uniform or equipment violations part of the Player Policies was most relevant and applicable. Once Judge Berman determined that the specific equipment violation policy applied, the union’s argument on appeal was pretty much the same as it was to Goodell and Berman – the application of such a policy requires fines for first offenses. This was hardly a new argument, much less a “whiplash-inducing change of position.”
The real question is why the NFL waited so long to bring up this argument. If the league really believed the NFLPA admitted that the player equipment violation policy did not apply, why didn’t Goodell address that in his decision in response to the NFLPA’s post-hearing brief? Why didn’t Daniel Nash argue that before Berman? Why didn’t the NFL make that case in its opening brief? Bringing up an argument that mischaracterizes the other party’s position in the last brief before oral arguments seems a dubious strategy. Was the NFL trying to prevent the NFLPA from having a chance to respond to the argument in writing by holding it until the last brief? Perhaps the league did not think of the argument until now and thought it would throw it in the brief and see if it stuck – the NFL did bring in new legal counsel specifically for the appeal after all. Maybe the league had overlooked that it had already conceded that the NFLPA argued this before both Goodell and Berman.
Whatever the reason, the argument is unlikely to have much actual impact on the appeal. This issue will come down to whether the Second Circuit believes Judge Berman inappropriately second-guessed Goodell’s authority to decide which policy to use when punishing Brady or if it believes Goodell improperly disregarded the essence of the collective bargaining agreement by choosing to punish under his Article 46 powers rather than the more specific equipment violation policy.
It’s clear that the NFLPA argued from the beginning that the equipment violation in the Player Policies was most relevant for Brady’s offense. Kessler argued essentially the same point to Goodell and Berman. Berman determined that the policy applied, and Kessler defended that ruling to the Second Circuit using a similar justification as he used earlier in the case. The NFL had ample opportunity to make this an issue earlier in the case and likely did not because there simply is not much to fight about here. Though the league may have audibled to a late blitz, it seems the other team already picked up the rush.
I disagree. The problem is that Kessler has to show the equipment rule applies, in order to avoid the broader "conduct detrimental" provision. As Berman wrote, the equipment provision would apply only because it is more specific notice. Absent such specifically applicable provision, the general con det provision would apply.
Thus, Kessler arguing that the specific notice provision doesn't fit does not leave a vacuum. It leaves the provision under which Brady was punished bGoodell’s reliance on notice of broad CBA “conduct detrimental” policy – as opposed to specific Player Policies regarding equipment violations – to impose discipline upon Brady is legally misplaced…because an applicable specific provision within the Player Policies is better calculated to provide notice to a player than a general concept such as “conduct detrimental.”