Wednesday, May 24, 2006

Vacek v. USPS (9th Cir. - May 24, 2006)

I did a double- and then triple-take when I read this case. It's a strange one indeed.

The underlying issue isn't all that complicated. You've got to exhaust your administrative remedies before you file a suit under the FTCA (Federal Tort Claims Act). So when Anton Vacek (allegedly) gets hit by a United States Postal Service truck, he hires an attorney, who (allegedly) promptly sends the USPS an administrative claim form. All of which is well and good. Except the USPS claims that they never received the form. So when the statute of limitations thereafter expires, and Vacek files suit, the USPS gets the lawsuit dismissed because the limitations period had run and Vacek has failed to exhaust. A result with special force here because the failure to timely exhaust is a precondition of the waiver of sovereign immunity by the United States.

Fair enough. But Vacek responds: "Mailbox Rule". The claim is timely when I put it in the mailbox, even if you claim not to have received it. But the "majority" opinion -- more on that later -- responds: "Nope. That's not the rule. The U.S. has to have actually received the form for exhaustion to apply. We've got Ninth Circuit precedent that so holds. It controls. Affirmed."

So here are the funny/interesting things about the case. First, on an utterly superficial level, isn't it funny that the USPS gets out of being sued because it lost the claim form?! Ho ho ho. Sure, Vacek's attorney could have sent it certified mail, and/or promptly followed up (within the limitations period) when no response from the USPS was forthcoming. And should have. But still. "We ran you over then lost your mail. Either one is bad enough. But, together, it means you can't sue us. Sorry, baby. Better luck next time." Too funny.

Second, so there's this prior Ninth Circuit precedent -- a case called Bailey -- that basically holds that plaintiff loses (by rejecting the mailbox rule). How funny is it that neither side cited this case in their briefs?! That's not a particularly impressive piece of information regarding the talents of counsel for the USPS, AUSA Abraham Simmons (a Georgetown Law graduate). Plus, counsel for Vacek -- Harold J. Truett (a USF Law graduate) -- hardly comes out smelling like a rose either. When a member of the panel mentions Bailey at oral argument, Vacek responds that this precedent is "a killer case for the government," and also says that "I recall sitting and reading the dissent and hoping that would become the rule of the circuit.”

Uh, dude. Can you try a little harder to, say, win -- rather than lose -- your case at oral argument?! Since the panel can't turn the dissent in Bailey into law, how about -- oh, I don't know -- trying to distinguish this adverse authority? It's hardly an ironclad or on-point precedent. Calling it a "killer" and reflecting upon your desperate hope that in a parallel universe the dissent has one more vote doesn't particularly help. In fact, it pretty clearly hurts.

Third, and finally, now that I've somewhat insulted both counsel -- sorry about that, guys -- let me turn my attention to the panel. Three more men, I might add. On the merits, I've got no problem with the various holdings in the case. Precedent is what precedent is. Fair enough.

But what's the deal with the "majority" and "concurring" opinions and their makeup?! How does this make any sense at all? Let me explain.

Judge Wallace writes the "majority" opinion. He says something very simple: (1) that the prior Ninth Circuit precedent in Bailey controls, and (2) that Bailey was rightly decided. (See, e.g., Majority Opinion at 5749: "Nor do we think Bailey was wrongly decided. Bailey directly controls."). Okay. I'm on that. Then comes Judge Thomas' concurrence. Which also says something very simple: (1) I agree that the prior Ninth Circuit precedent in Bailey controls, but (2) I think that Bailey was wrongly decided. (See, e.g., Concurrence at 5751: "[B]ecause I believe Bailey was incorrectly decided, I write separately to urge re-examination of the Bailey

Now, all of this makes sense, right? But here's the kicker: The third member of the panel, Judge Hawkins, joins Judge Thomas' concurrence. What?! This makes no sense. Wallace only has one vote. He can't write what all of the judges on the panel call the "majority" opinion unless he gets another vote for his opinion. But where's it coming from?! Not from Thomas, who (1) nowhere says that he's joining any part of Judge Wallace's opinion, and (2) who expressly disagrees with (and hence does not join) Judge Wallace's central conclusion that Bailey was properly decided. And not from Hawkins either, who both agrees with Thomas and who joins his concurrence. So where's the second vote?!

My only intuition is that Judge Wallace writes the "majority" opinion because Hawkins or Thomas (or both) joins it. But, logically, this can't be. You can't join and agree with a "majority" opinion that says "Bailey is correctly decided" and yet simultaneously write (or join and agree) with a "concurrence" that says "Bailey is wrongly decided". It's either X or non-X. You gotta choose. You can't join both!

So, anyway, I'm at a loss on this one. It seems to me like the "concurrence" by Hawkins and Thomas is actually the majority opinion and that Judge Wallace's "majority" opinion is actually a concurrence. Either that or that one or both of Hawkins and Thomas are agreeing that both X and non-X are true. And, if that's the case, thankfully, they both are conspiring to make sure that the world doesn't know for such which one of them holds such a logically disparate belief.

This is one for the ages. 2-1, where the 1 wins. You gotta love the Ninth Circuit.