Articles

High Court Reverses All Six Cases From Here

"[T]ime will change and even reverse many present opinions."
Greek Philosopher Plato, Laws (888)

By Marshall H. Tanick

The return of the U.S. Supreme Court from its summer recess today (October 5th) gives the Eighth Circuit a chance to improve its dismal record from last Term.

The High Court already has one major case from this Circuit on its docket for the upcoming 2009-2010 Term. In Milavetz, Gallop & Milavetz, P.A. v. United States, No. 08-1225, the justices will review a decision of the Eighth Circuit Court of Appeals holding that a law firm representing debtors constituted a "debt relief agency" under the 2005 Bankruptcy Reform Act, 11 U.S.C. § 101, et seq. The case, brought by a Twin Cities firm, has significant implications for attorneys because, as a "debt relief agency," a firm is prohibited from advising debtors to incur more debt in contemplation of filing bankruptcy. The High Court will review the Eighth Circuit ruling that the disclosure restriction is permissible under the First Amendment. 541 F.3d 785 (8th Cir. 2008).

The case comes on the heels of the Eighth Circuit striking out in all six of its cases decided by the High Court in the 2008-09 Term, five criminal ones and a high-profile civil lawsuit. Incidentally, six other appellate tribunals experienced 100% reversal rates.

The local law firm contesting the bankruptcy ruling is hoping that pattern holds in its case, and the High Court will overturn the Eighth Circuit decision, joining the half-dozen reversals from last Term.

Cocaine Cases

A drawn-out saga concerning sentencing was addressed rapidly by the High Court in Moore v. United States, 129 S. Ct. 4 (2008), reversing and remanding a ruling of the Eighth Circuit proscribing a trial court from exercising its discretion in imposing imprisonment below the Sentencing Guidelines.

The trial court gave a convicted cocaine dealer a sentence of 188 months, which the Eighth Circuit initially affirmed, rejecting a claim for a lesser sentence because of the disparate treatment in the Sentencing Guidelines for similar amounts of crack and powder cocaine. While the claimant's request for further review was pending, the High Court ruled in Kimbrough v. United States, 128 S. Ct. 558 (2008), that a trial judge may consider the disparity in imposing sentences below the Guidelines. Based on that decision, the High Court granted the claimant's petition, vacated the sentence, and remanded to the appellate court.

The Eighth Circuit, without new briefing, again affirmed. 518 F.3d 577 (2008). It reasoned that the trial court presumably was aware that it had the discretion to "vary downward . . . but elected not to exercise that discretion."

The drug dealer brought his case to the Supreme Court for a second time, arguing that the Eighth Circuit erred in its "characterization" of the trial court's ruling. Unusually, the Government concurred.

The High Court agreed, too. The Eighth Circuit should have remanded the case to the trial judge for re-sentencing under the Kimbrough rationale. Without expressing any view on "how the district court should exercise its discretion at re-sentencing," the justices overturned the appellate court and remanded the case for further sentencing.

Another cocaine sentencing case reached the Supreme Court from the Eighth Circuit for a second time during the past Term. In Spears v. United States, 129 S. Ct. 840 (2009), the High Court overturned an Eighth Circuit ruling from Iowa that the trial court impermissibly sentenced a cocaine distributor too leniently by replacing the 100:1 quantity ratio for crack/powder cocaine offenses with its own 20:1 ratio, the minimum under the Sentencing Guidelines.

The defendant was found guilty of distributing at least 50 grams of cocaine base and 500 grams of powdered cocaine. The Eighth Circuit affirmed, reversed the sentence and remanded, but the High Court vacated and remanded that determination. 128 S.Ct. 858 (2008). On remand, the Eighth Circuit again reversed the sentence, reasoning that the trial court "may not categorically reject the ratio set forth by the guidelines." 533 F.3d 715, 716 (2008) (en banc).

The High Court, for a second time, reversed, under Kimbrough case, which recognized that trial judges have "authority to vary from the crack cocaine guidelines" on policy grounds. While trial judges cannot depart solely due to individualized determination that application of the guidelines would result "in an extensive sentence in a particular case," they "are entitled to reject and vary categorically from the crack-cocaine guidelines based on a policy disagreement with those guidelines."

Sentencing Strikes

The Eighth Circuit also struck out in another pair of criminal sentence cases, one from Minnesota, decided by summary reversals last Term. In both cases, the appellate court had upheld application of the 180-month mandatory minimum required under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which is activated by three prior convictions of a "violent felony."

In U.S. v. Mills, 129 S. Ct. 989 (2009), the High Court overturned a Minnesota case concerning whether an escape constitutes a "violent" offense under ACCA. It remanded in light of its ruling in Chambers v. United States, 179 S. Ct. 687 (2009), that not all escapees are covered under ACCA unless they are from a penal institutes or from custody, rather than a failure to report for incarceration. The Eighth Circuit, on remand this summer, then sent the case back to Judge Donovan Frank to determine the circumstances of the escape and its amenability to ACCA. 2009 WL 2476695.

In another ACCA reversal, the High Court in U.S. v. Vincent, 129 S. Ct. 996 (2009) remanded to the Eighth Circuit to decide whether possession of a sawed-off shotgun triggers ACCA. The appellate court, without additional hearing, determined it did and reaffirmed the 15-year minimum sentence under ACCA. 2009 WL 2476670.

Identity Issue

Another Eighth Circuit conviction from Iowa was overturned by the High Court in Flores-Figueroa v. United States, 129 S.Ct. 1886 (2009). The defendant, convicted for aggravated identity theft based upon submitting fraudulent Social Security and alien registration cards to his employer belonging to someone else, appealed on grounds that the company failed to establish that he acted with requisite guilty knowledge under 18 U.S.C. 1028A(a)(1) which forbids "knowingly" using a "means of identification of another person." The Eighth Circuit affirmed, 274 Fed. Appx. 501 (8th Cir. 2008) (per curiam), creating a split in the Circuits, concerning definition of the "knowingly" provision.

The High Court unanimously reversed, holding that the mens rea element of the offense requires that the person who wrongfully used an identification card knew that the "identification actually belonged to someone else." The "ordinary meaning" of the statutory term requires proving that the individual knew that the identification given to the employer belonged to someone else. Although the documents included numbers that were fabricated, the Government failed to prove the offense by showing that the defendant "knew that the means of identification of issue belong to another person."

Therefore, the case was reversed and remanded. If it is established that the alien knew that the cards and numbers belonged to someone else, his sentence can be enhanced by two years under the statute, which supplements two other immigration offenses for which he already was convicted.

Gross Out

A high profile age discrimination case from the Eighth Circuit also was narrowly overturned in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). The case was brought by a 54-year old claims administrator for a financial services company under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a) after many of his duties were reassigned to a younger subordinate.

He prevailed at trial, obtaining a verdict of lost income of nearly $47,000. The Eight Circuit reversed and remanded, holding that the trial court had improperly instructed the jury and that a claimant must show that age was a "motivating factor" in the employee's decision. 126 F3d. 356 (2008).

Addressing an issue unresolved for 20 years, due to competing concurrences in PriceWaterhouse v. Hopkins, 49 U.S.C. 228 (1999), the High Court reversed the Eighth Circuit ruling and remanded the case.

The Court's conclusion consisted of a two-prong setback for the claimant and for other age bias employees as well. The High Court decision, written by Justice Thomas, held that the burden of proof under the ADEA statute never shifts to the employer if the claimant establishes a prima facie case. Unlike other discrimination cases, which generally invoke the three-prong burden shifting standard of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), in ADEA cases, the burden remains with the claimant at all times.

The burden must be satisfied by showing that age was the "but for" cause of any adverse action by the employer, dispensing with any "mixed motives" analysis used by the appellate court.

It summarized that, to bring a disparate treatment case under the ADEA, the employee "must prove, by a preponderance of the evidence, that age was the 'but-for cause' " and that the burden of persuasion "does not shift to the employer . . . even when a plaintiff has produced some evidence that age was one motivating factor in that decision." The decision drew vigorous dissents from four justices, who agreed with the Eighth Circuit that the proper test is whether age "was a motivating factor in the employment decision."

As these cases show, the Eighth Circuit had an abysmal batting average before the Supreme Court last Term, striking out in all six cases. The local law firm involved in the bankruptcy case in the upcoming Term hopes to have a result that is more grand than the slam encountered by the Eighth Circuit last Term. 

PERSPECTIVES POINTERS

Reversal Rates in 2008-09 Term

• Overall reversal rate: 76% (60 of 279 cases);
• Reversals from Ninth Circuit: 81% (13 of 16 cases);
• Reversals from Eighth Circuit: 100% (all 6 cases);
• Other 100% reversal rate: 4th, 6th, 7th, 10th, D.C. and Federal Circuits (23 cases);
• Reversals from 11th Circuit: 0% (all 3 affirmed).