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I started this blog as a way to make myself read the opinions published by the Court. It has since begun to discourage me from doing that very thing, but substantially increasing the time it takes to do so. I have therefore decided to stop.

Tax Courts Have Exclusive Jurisdiction Over Interest Abatement Actions

Hinck v. United States

IRS code section 6404(e) allows the Secretary of the Treasury to forgive (in whole or in part) any interest accrued on unpaid taxes if the assessment of the interest on a deficiency is attributable to an unreasonable error or delay on the part of the IRS. 6404(h), passed as part of the taxpayers bill of rights, allows for judicial review over the Secretary’s decision not to grant such an abatement. The question in this case is whether that review is available in district court, as opposed to tax court.

6404(h) states that “In general.—The Tax Court shall have jurisdiction over any action brought by a taxpayer who meets the requirements referred to in section 7430… to determine whether the Secretary’s failure to abate interest under this section was an abuse of discretion, and may order an abatement, if such action is brought within 180 days after the date of the mailing of the Secretary’s final determination.” “A precisely drawn, detailed statute pre-empts more general remedies.” “When Congress enacts a specific remedy when no remedy was previously recognized, or when previous remedies were ‘problematic’ the remedy provided is generally regarded as exclusive.” Both of these axioms fit the tax statute. That the primary argument against judicial review no longer applies (when Congress supplied a standard of review the argument that the agency’s determination should not be disturbed for lack of judicially manageable standards ceased to apply) does not affect the issue of the exclusivity of jurisdiction.

Petitioners argue that this interpretation impliedly repeals preexisting jurisdiction, something that is disfavored in statutory construction, but in actuality there had been no jurisdiction preexisting before this statute. Nor does this interpretation depart from the normal understanding of the metaphysical relationship between the tax courts and district courts, since granting any jurisdiction to the Tax Court, as Congress clearly did, breaks the general scheme whereby prepayment actions are brought in Tax Court and postpayment actions brought in District Court. The fact that there are no issues of substantive tax law in interest abatement claims suggests that the Tax Courts are at least as well situated to address these claims as the District Court. Finally, it is not odd that this interpretation prevents persons with wealth exceeding $2m, and companies with wealth exceeding $7m, from seeking judicial review, since this reflects Congress’ judgment that these classes of persons are more likely to be able to pay the interest.

Counsel’s Failure to Investigate Mitigating Evidence Caused No Prejudice

Schriro v. Landrigan

Landrigan was convicted of second-degree murder in 1982 and sentenced to death. At sentencing Landrigan requested that his mother and ex-wife not testify. His lawyer explained that he advised very strongly that it was in his client’s interests to have these two women testify, but that his client had refused. The court verified this with Landrigan, and Landrigan actively prevented the information from coming to light by interrupting the judge’s attempt to bring it out. He later filed a petition for postconviction relief on the basis that he had ineffective assistance of counsel because his lawyer failed to investigate other possible mitigating circumstances. The ninth circuit held that Landrigan was entitled to an evidentiary hearing on his ineffective assistance of counsel claim because he raised a colorable claim that his counsel’s assistance fell below the Strickland standard since he did little to prepare for the sentencing phase, and because investigation would have revealed a wealth of opportunity. It also held that it was unreasonable for the lower court to conclude that Landrigan would have objected to the admission of any mitigating evidence, as opposed to the testimony of his ex-wife and mother. Finally, none of Landigran’s actions excuse counsel’s failure to properly investigate the matter.

Under AEDPA habeas relief is available only when the state court’s adjudication of a claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, or an unreasonable determination of the facts. Before granting an evidentiary hearing the court must determine that such a hearing could enable the applicant to prove the allegations which, if true, would entitle him to federal habeas relief. This comports with AEDPA’s purpose – “[i]f district courts were required to allow federal habeas applicants to develop event he most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts.”

If Landrigan instructed his counsel not to offer any mitigating evidence, the failure to admit such evidence could not be prejudicial under Strickland. It was not unreasonable for the court to conclude that when Landrigan answered the question as to whether there was any mitigating evidence by saying “Not as far as I’m concerned” he was objecting to the admission of any mitigating evidence. Moreover, counsel’s investigation (or lack thereof) notwithstanding, Landrigan was aware of the mitigating evidence at issue.

Nor was it unreasonable for the court to hold that, assuming Landrigan did not want any mitigating evidence presented, his claim was “frivolous, and meritless.” In Wiggins the Court addressed the sufficiency of the investigation to support counsel’s decision not to enter any mitigating evidence. In Rompilla v. Beard the defendant refused to cooperate in the investigation, but did not affirmatively hinder it.

Even assuming that Landrigan’s waiver must have been informed and knowing (a standard the Court has never applied to these cases), (1) this issue was not raised below, and (2) counsel indicated that he carefully explained the matter, and (3) Landrigan’s statements (e.g. “I think if you want to give me the death penalty, just bring it right on”), taken as a whole, indicate that he understood the consequences.

Finaly, the court had most of the evidence that Landrigan now wants investigated before it, and the court could reasonably conclude that what evidence it didn’t (that Landrigan might have been genetically predisposed to violence) would not have made a difference in sentencing.

Justices Stevens, Souter, Ginsburg, and Bryer, dissenting, argue that (a) no one seriously contends that counsel’s investigation of possible mitigating circumstances was adequate (for example, counsel failed to perform a psychological evaluation that would have shown a serious organic brain disorder); (b) it is well established that a citizen’s waiver of a constitutional right must be knowing, intelligent, and voluntary (Zerbst), specifically in the context of the waiver of trial rights; and (c) a capital defendant has the right to have his sentence reflect a reasoned moral judgment as to all possible mitigating evidence. Therefore, if Landrigan can show that his waiver was not knowing intelligent and voluntary he has a valid claim, and since it would be possible for him to do so, it was unreasonable to conclude that he was not entitled to an evidentiary hearing to explore this claim. Also, the only claim he is making here is ineffective assistance of counsel, so any waiver of the right to present additional evidence is irrelevant. Landrigan could not have known about his organic brain disorder because counsel did not adequately investigate the mater.

The record, also, does not support the contention that Landrigan waived his right to present mitigating evidence – only that he did not want his family to testify. Landrigan also consented to a continuance for counsel to investigate mitigating circumstances, which does not square with the understanding that he wanted no such thing admitted.

Finally, the evidence of Landrigan’s organic brain disorder is sufficiently strong evidence to draw the sentence into doubt and create prejudice, and the aggravating evidence was no stronger than in similar cases where an attorney’s failure to investigate mitigating circumstances was held to constitute a cognizable claim of ineffective assistance of counsel.

Habeas cases requiring evidentiary hearings have been few in number and there is no clear evidence that this particular class has burdened the dockets of the federal courts. Even before AEDPA evidentiary hearings only occurred in 1.17% of all federal habeas cases. “We ought not take steps which diminish the likelihood that [federal] courts will base their legal decision on an accurate assessment of the facts.”

Must a “Component” be Physical?

Microsoft Corp. v. AT&T Corp.

Generally, there is no patent violation when a patented product is made and sold in another country except when one supplies from the United States, for combination abroad, a patented invention’s components. AT&T claims that Windows contains potentially infringing components (software to process voice). The issue is whether Microsoft’s liability extends to computers made in another country when they are loaded with Windows software copied from a master disk or electronic transmission dispatched by Microsoft from the United States, which is then copied onto the potentially offending computers (this was the compiled version, also known as “object code,” as opposed to the human-readable set of instructions known as “source code”).

In DeepSouth, a case about a patented shrimp deveiner, the Court held that patent law stopped a the water’s edge, and that it was not a violation to sell the component parts of a patented item for assembly abroad. Congress specifically overturned the second portion of that ruling by enactment of the statute at issue here. Essentially, whoever supplies all or a substantial portion of the components of a patented item, in such a manner as to actively induce their later combination outside the United States in a manner that would infringe the patent if it occurred in the United States; or sells abroad a component of a patented item that is specially made for that device, which is not suitable for substantial non-infringing use, and which would violate the patent if sold in the United States, is liable as an infringer.

Neither Windows itself, nor a computer, standing alone, violate AT&T’s patent. The infringement does not occur until they are combined. Microsoft stipulated that it was liable in the United States but argued that because its software was intangible it could not be considered a component of the item at issue, and that foreign-generated copies of Windows (from the master shipped or copied from Redmond) were not supplied from the United States. The case comes down to the moment at which Windows becomes something that can constitute as component of AT&T’s patent.

“until it is expressed as a computer-readable ‘copy’ e.g., on a CD-ROM, Windows software – indeed any software detached from an activating medium – remains uncombinable. It cannot be inserted into a CD-ROM drive or downloaded from the Internet; it cannot be installed or executed on a computer.” AT&T’s argument that once you compile the object code the source code is useless and irrelevant “[does] not persuade [the Court] to characterize software, uncoupled from a medium, as a combinable component.” “[B]efore software can be contained in and continuously performed by a computer, before it can be updated and deleted, an actual physical copy of the software must be delivered by CD-ROM or some other means capable of interfacing with the computer.” “Abstracted from a usable copy, Windows code is … more like notes of music in the head of a composer than ‘a roller that causes a player piano to produce sound.’” Just because the step required to make the object code machine readable (putting it on a CD, etc) is trivial does not mean it has no metaphysical significance.

Of importance, I think, is footnote 13 – “If an intangible method or process, for instance, qualifies as a ‘patented invention’ … the combinable components of that invention might be intangible as well. The invention [in this case], however, AT&T’s speech-processing computer, is a tangible thing.”

The lower court held that the act of copying is subsumed in the act of supplying. The law at issue prohibits the supply of components “from the United States … in such manner as to actively induce the combination of such components.” The components supplied, and not copies thereof, are what trigger liability. This opinion does not express an opinion on whether Microsoft would be liable for copies of Windows shipped on a disc from the U.S. and installed on machine where the disc was then removed from that machine. “The absence of anything addressing copying in the statute weighs against a judicial determination that replication abroad of a master dispatched from the United States ‘supplies’ the foreign-made copies fro the United States.”

To the extent that this is a close case it is controlled by the presumption against extraterritorial effect of American patent law, and the fact that the statute was designed to expand its reach does not make that presumption inapplicable. If this in fact leaves a “loophole,” that can be addressed by Congress; the Court is not persuaded that “dynamic judicial interpretation” of the statute is in order.

Justices Alito, Thomas and Bryer agree that a component of a machine must be a physical thing, and that a computer loaded with the right software would be an infringing item even after the component CD-ROM is taken out. “There is nothing in the record to suggest that any physical part of the [master] disk became a physical part of the foreign-made computer.”

Justice Stevens, dissenting, argues that the relevant component in this case is not a physical item and therefore the manner in which it is transmitted abroad from the United States is irrelevant. Moreover, Justice Stevens does not agree that because software is analogous to an abstract set of instructions like a blueprint that it cannot be considered a “component” within the meaning of the law because it is a constituent part, and not merely passively like blueprints. It is, Justice Stevens argues, more like a roller that causes a player piano to produce sound.

The More Specific Statute Controls the More General

EC Term of Years Trust v. United States

The IRS code provides that if someone fails to pay a demand made by the IRS, the IRS may impose a lien on their property. Where, as here, that lien is asserted against property in which a third party has an interest (in this case a trust), that party may bring a civil action against the IRS under §7426, but must do so within 90 days. The question in this case is whether, after that 90 day period, that third party can bring a different action under §1346. The lower court held that §7426is the exclusive remedy for third party challenges.

“A precisely drawn, detailed statute pre-empts more general remedies.” “Resisting the force of the better-fitted statute requires a good countervailing reason.” Here, Congress specifically tailored §7426 the third party claims for wrongful levy, and if third parties could avail themselves of the general tax refund jurisdiction of §1346 they could effortlessly evade the levy statute’s 9-month limitations. Cases holding that §1346 was expansive enough to cover third party claims were premised on the notion that no other remedy was available. The proposed distinction between classes of claims under the respective statues directly contravenes the express terms of the statute. Congress had a good reason for passing the 9 month limitation – to speedily settle tax levies and put the government in the position to act unhindered by concern that a third party claim would later arise.

Patent Obviousness

KSR Int'l Co. v. Teleflex Inc.

Teleflex sued KSR for patent infringement on a patent it held for an assembly whereby the position of a pedal would be measured electronically and transmitted to the portion of a vehicle that controls the throttle. As a defense KSR argued the patent was invalid under the Patent Act which forbids issuance of a patent when “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The Court of Appeals applies a test whereby if there had been some academic suggestion (“teaching, suggestion, or motivation”) (TSM test) to combine the prior art and teachings the subject matter is held obvious.

The previous state-of-the-art for car pedals (a very complicated and technical mechanical-relay-and-feedback system -- a wire and a spring) did not allow for adjustment to fit the stature of the driver. In 1989 Asano filed a patent for an adjustable pedal, which required that at least one pivot point remain the same so that the pressure required to make speed adjustments was always the same. Patents testing electronic control methods showed that it was best to put the sensor near the pedal, but not on the footpad. Redding filed a patent application for an electronic pedal which was rejected, then Engelgau filed another one which was accepted. The latter was more specific in that it required that the sensor be contained in a fixed pivot point.

An issued patent is presumed to be valid. The District court found that the patent simply combined two existing patents and teachings, but was required by precedent to applyteh TSM test which the District court held was satisfied. Suffice it to say, the more technical you get, the more innovations you can see in Engelgau patent, which the Court of Appeals held was valid.

The Court of Appeals was wrong in applying such a strict approach. Graham set forth a broad inquiry and invited courts, where appropriate, to look at any secondary considerations that would prove instructive. “A patent for a combination which only united old elements with no change in their respective functions … obviously withdraws what is already known into the field of its monopoly and diminishes the resources available to skillful men.” Under Adams, when a patent uses a structure that is already known but substitutes that structure’s elements (changing chemicals in a battery) that combination must do more than yield a predictable result, but when the prior art teaches away from combining certain known elements, discovery of a successful means of combining them is more likely to be non-obvious. In Anderson’s-Black Rock the Court held that where the combination of two pre-existing mechanisms (a radiant heat burner and a paving machine) did no more together than the mechanisms would do separately, though the combination performed a useful function in tandem, it was obvious. Finally, in Sakraida the Court concluded that when a patent “simply arranges old elements with each performing the same function it had been known to perform” and yields no more than one would expect from such an arrangement, the combination is obvious.

For such combinations to be held obvious, however, there must have been some teaching on the subject, or some reason to believe that a person of ordinary skill in the relevant field would have combined the elements in the way the claimed new invention does. The error here was a narrow reading of the teaching requirement, and overemphasis on published materials. The court of appeals restricted its inquiry to the precise problem that the patentee was trying to solve, rather than the obviousness to a person of ordinary skill in the field trying to solve any given problem. The court of appeals also assumed that such an ordinary person would have been restricted to the previous knowledge, despite common sense or abstraction of the previous knowledge. Finally, while courts should be cognizant of hindsight bias, factfinders should not be prevented from employing common sense by rules prohibiting ex post evaluations per se.
Teleflex has defaulted on the issue of whether the patent actually covered the device in question because their argument was not specific, and given the importance of the argument, it would have been if they had tried to seriously challenge it.

The patent was obvious because it merely combined prior knowledge and teachings in a way that a person of ordinary skill in the profession would.

Finally, the court of appeals erred in finding a genuine issue of material fact where that fact did not draw into question any of the issues presented to the court.

Justice Scalia And the Whole Court Break Rule #1 of Appellate Review

Scott v. Harris

When Deputy Scott tried to pull someone over for going 77 in a 55 the driver sped off and initiated a high-speed chase. Lower courts ruled that the case for excessive force could go forward partly because Scott’s actions could constitute “deadly force.” This case addresses whether it is ever reasonable for officers to put a fleeing driver in serious risk of injury or death in order to bring such a chase to an end.

The initial question in a case such as this, where the officer asserts “qualified immunity” – essentially ‘I was just doing my job’ - is whether the facts, taken in the light most favorable to the party asserting the injury, show a violation of a constitutional right. Next is whether that right was clearly established at the time. While the facts must be those as alleged by the person asserting a violation, and all inferences taken in their benefit, and while there has been no factual finding yet (the case is still in summary judgment) there is a recording of the chase that clearly contradicts Respondant’s assertions that there was little or no danger to bystanders. Since there is no “genuine” dispute over the facts gleaned from the video tape. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgement.” “The Court of Appeals should not have relied on [the facts as recounted by the party asserting a violation]; it should have viewed the facts in the light depicted in the videotape.”

A Fourth Amendment seizure occurs when there is a governmental termination of freedom of movement through means intentionally applied. Respondent argues that before “deadly force” can be used certain preconditions must be met: (1) the suspect must have posed an immediate threat of serious physical harm to the officers or others; (2) deadly force must have been necessary to prevent escape; and (3) where feasible, the officer must have given the suspect some warning (Garner). Justice Scalia notes that the second prong was not about necessity, but rather about the need to prevent serious harm, and the need to prevent escape was just an example. A police car ramming a fleeing car is less deadly than shooting a fleeing suspect with a gun, and a fleeing suspect in a car poses a substantially greater risk than one on foot, as in Garner.

Now it is a straightforward balancing test. The officer’s actions posed a risk, but not a “certainty” of death (as in Garner). “So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability.” The police were not required to take the risk of ceasing the chase in the interests of safety – “Respondent might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.” Anyway, such a requirement would be, most decidedly, bad policy.

Justice Ginsburg, concurring, joins the opinion but notes that this is not a per-se rule, and that Justice Bryer apparently agrees that the constitutional question here warrants an answer.
Justice Bryer, concurring, joins the opinion but wants the world to know that after having watched the video his mind was made up that no reasonable juror could afind that Officer Timothy Scott acted in violation of the Constitution. Justice Bryer also highlights the “fact-specific” nature of the case, and that this suggests that courts should not be required to address “constitutional questions” before the “qualified immunity question. It is relatively new, subject to much criticism, a waste of resources, and makes bad law. Finally, Justice Bryer disagrees with the per-se rule that “[a] police officer attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

Justice Stevens, dissenting, alone, takes issue with the majority’s “de novo” review of the video tape. “[T]he tape actually confirms, rather than contradicts, the lower courts’ appraisal of the factual questions at issue. More importantly, it surely does not provide a principled basis for depriving the respondent of his right to have a jury evaluate the question whether the officers’ decision to use deadly force to bring the chase to an end was reasonable.” Justice Stevens then recounts what the video portrays in a way that a reasonable juror could conclude that Respondent’s version of the facts was right. Moreover, it might have been more reasonable to discontinue the chase and pick up the driver after running the license plate – another question the jury should have addressed – especially since many police departments have adopted just such a rule. “If two groups of judges” (ie: the judges on the court of appeals) “can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with the Court’s characterization of events.”

The Court today, Justice Stevens argues, sets forth a per se rule that presumes its own version of the facts: “[A] police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”