Latest 3 Cases This Week: D.J.S.-W. v. United States (3d Cir.), Day v. United States (7th Cir.), Masellis v. Law Office of Leslie F. Jensen (Cal. ...

The “When” of Chevron: The Missed Opportunity of County of Maui

SAMUEL ESTREICHER, DANIEL FOLSOM

NYU law professor Samuel Estreicher and rising 3L Daniel Folsom comment on the U.S. Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, in which the Court interpreted a provision of the Clean Water. Estreicher and Folsom argue that the case presented an opportunity to clarify the murky question of when the Chevron doctrine applies, yet the Court avoided answering that question.

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The Unnecessary Protection of Qualified Immunity

JOANNA C. SCHWARTZ, SETH STOUGHTON

UCLA law professor Joanna C. Schwartz and South Carolina law professor Seth W. Stoughton address some of the arguments commonly asserted to support qualified immunity, the doctrine that shields police officers from civil liability for constitutional violations. Schwartz and Stoughton argue that eliminating qualified immunity should not affect police decision-making and that existing Supreme Court doctrine gives police officers plenty of leeway to make mistakes without violating the Constitution. Because qualified immunity applies only to unreasonable actions by police officers, eliminating or substantially restricting it should not a chilling effect on police officers’ ability or willingness to respond to critical incidents.

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D.J.S.-W. v. United States

Court: US Court of Appeals for the Third Circuit

Docket: 19-2434

Opinion Date: June 22, 2020

Judge: D. Michael Fisher

Areas of Law: Civil Procedure, Government & Administrative Law, Medical Malpractice, Personal Injury, Professional Malpractice & Ethics

In 2009, D. was delivered at Sharon Hospital by Dr. Gallagher and sustained an injury, allegedly causing her shoulder and arm permanent damage. In 2010-2011, preparing to file D.’s malpractice case, counsel requested records from Sharon and Gallagher, limited temporally to the delivery. Counsel believed that Gallagher was privately employed. Sharon was private; Gallagher was listed on the Sharon website. Counsel did not discover that Gallagher was employed by Primary Health, a “deemed” federal entity eligible for Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), malpractice coverage. D.'s mother had been Gallagher's patient for 10 years and had visited the Primary office. In contracting Gallagher, counsel used the Primary office street address. Gallagher’s responses included the words “Primary Health.” The lawsuit was filed in 2016; Pennsylvania law tolls a minor plaintiff’s action until she turns 18. The government removed the suit to federal court and substituted the government for Gallagher. The district court dismissed the suit against the government for failure to exhaust administrative remedies under the FTCA. The case against Sharon returned to state court. After exhausting administrative remedies, counsel refiled the FTCA suit. The Third Circuit affirmed the dismissal of the suit as untimely, rejecting a claim that D. was entitled to equitable tolling of the limitations period because counsel had no reason to know that Gallagher was a deemed federal employee or that further inquiry was required. D. failed to show that she diligently pursued her rights and that extraordinary circumstances prevented her from timely filing.

Day v. United States

Court: US Court of Appeals for the Seventh Circuit

Docket: 18-2398

Opinion Date: June 24, 2020

Judge: Diane S. Sykes

Areas of Law: Criminal Law, Legal Ethics, Professional Malpractice & Ethics

Day was indicted for conspiracy to commit wire fraud after participating in a fraudulent “credit repair” scheme. The government offered Day a plea deal that would have yielded a probable sentencing range of 51-63 months’ imprisonment. Day’s federal defender advised him to accept the deal. His father urged him to consult a private lawyer—an acquaintance with no experience in criminal law. That lawyer brought in an attorney experienced in federal criminal law. The two told Day that he was not guilty and should reject the offer. Day hired the two lawyers. The federal defender withdrew and offered to make her file available. The government extended the same offer six weeks before trial. Though they had not yet reviewed the case materials, Day’s new lawyers advised him to reject it. Day declined the deal. At the final pretrial hearing, Day again rejected the plea offer. The lawyers later told Day he would lose at trial. Day told them to get the best deal they could. They instead advised him to throw himself on the mercy of the court. Day pleaded guilty without an agreement, facing a sentencing range of 87-108 months. The district judge imposed a 92-month sentence. Day sought relief under 28 U.S.C. 2255, arguing that his attorneys were constitutionally ineffective. The Seventh Circuit vacated. The government conceded the deficient-performance element of Day’s Sixth Amendment claim. The facts set forth in his motion, if proven, could establish prejudice.

Masellis v. Law Office of Leslie F. Jensen

Court: California Courts of Appeal

Docket: F075772(Fifth Appellate District)

Opinion Date: June 19, 2020

Judge: Donald R. Franson, Jr.

Areas of Law: Legal Ethics, Professional Malpractice & Ethics

The applicable standard of proof for the elements of causation and damages in a "settle and sue" legal malpractice action is the preponderance of the evidence standard. In this case, defendant, the attorney, contends that the element of causation and damages in a "settle and sue" legal malpractice case must be proven to a legal certainty, and that the legal certainty standard imposes a burden of proof higher than a mere preponderance of the evidence. The Court of Appeal explained that no published legal malpractice case using the term "legal certainty" expressly states the default burden of proof is replaced by a standard higher than preponderance of the evidence. Therefore, the court held that the term "legal certainty" is ambiguous and the court resolved the ambiguity by interpreting the statement that a plaintiff must present "evidence showing to a legal certainty that" the alleged breach of duty caused an injury as simply referring to the degree of certainty inherent in the applicable burden of proof.