(Posted June 14, 2018) With no opinions from the justices today, we have time to scour the horizon for appellate developments.


Pilot mediation program

This week the Supreme Court approved a pilot program to provide specialized mediation services for cases on appeal. The program will run in calendar years 2019 and 2020, after which the court will evaluate its effect to see if it’s useful and cost-beneficial. I suspect it’ll be here to stay.

Not every appeal will qualify:

In the Supreme Court: There are two significant limitations on the program, in that it only applies in civil cases and only after the court grants a writ. One lesser limitation is that it will only be available where there are no pro se parties. In suitable cases, the Clerk will send the parties a notice that mediation services are available, along with a list of mediators specially trained in the appellate process. If the parties elect to pursue mediation, all appellate deadlines are stayed for 30 days to allow the parties a chance to forge an agreement.

In the Court of Appeals: Here, the program is only available in domestic-relation cases involving equitable distribution and related attorney’s-fee issues. As you’ll appreciate, the courts will not countenance the mediation of criminal convictions or of child-custody determinations.

Normally mediated settlements are tragic things, because if a case settles in the trial court, no one appeals. Appellate lawyers need to make a living! But kidding aside, the benefits to clients are clear: They get cost containment, a hand in shaping the outcome, and the chance to fashion creative resolutions that are beyond the powers of courts to order.


Interesting writ grant

I don’t usually report on writs, but one caught my eye in Tuesday’s listing. Last week the justices awarded an appeal in a civil case, Seeraj-Montague v. Friendly Ride Access, LLC, where below, the plaintiff’s lawyer “informed the court that he was physically ill and unable to attend the hearing.” The trial court was unimpressed; it refused a continuance and dismissed the suit with prejudice. Perhaps there’s more to the story, but the language of the assignment of error is all we have to work with.

In my experience, the Supreme Court tends to be hands-off when it comes to docket-control matters. The justices figure that trial judges know best how to manage things, including the grant or denial of continuances. They do step in where a trial judge denies a statutory right, such as the 2016 ruling in JSR Mechanical v. Aireco Supply. There, a trial judge refused a motion to reinstate a suit that had been discontinued. The Supreme Court held that the court had no discretion to do that; courts must grant timely reinstatement motions.

Perhaps there’s something like that here, but I sense that this is different in kind from JSR Mechanical. The trial judge is usually better positioned to assess if the lawyer’s complaint is real or feigned for a litigation advantage. There must be something here that piqued the curiosity of two justices on the writ panel. Just don’t hold your breath; I suspect that this appeal might make it onto the November argument docket, with a decision coming by the end of the year or maybe in early 2019.


SCOTUS review at VBA meeting

For the past several years, the Virginia Bar Association’s summer meeting has featured a panel discussion of the previous term of the Supreme Court of the United States. That tradition continues this year, as experts will analyze what happened – and sometimes what didn’t – in the term that will end just three weeks before the program. As in past years, my appellate pal Bill Hurd of Troutman Sanders will moderate. Bill always does a terrific job, and the program never fails to impress me. The segment begins Saturday, July 21 at 9:00 a.m. Click here if you want to register for the program, held as always at The Homestead in beautiful Bath County.


Here’s another reason to file early

The Fourth Circuit today hands down a published opinion in a sad case, Nauflett v. Commissioner of Internal Revenue. It’s the latest exhibit in my continuing crusade to convince everyone that deadlines are not targets and you should stay well clear of them.

The IRS pinged Husband and Wife for unpaid taxes, plus penalty and interest, for four tax years. Knowing that Husband had prepared the tax returns, Wife sought shelter under the remedial provisions of the innocent spouse doctrine, which protects “an individual, who was a joint filer but did not know or have reason to know that there was an understatement on the tax return.”

The IRS considered that and sent a notice denying relief. It also told her that she could petition the Tax Court for review within 90 days. It gave her a phone number to call if she wanted to try to resolve it, but emphasized that nothing could extend the 90-day deadline.

Wife called and spoke with two different IRS agents. According to her complaint, both of them said they’d help if they could, but emphasized that she had to file a Tax Court petition no later than September 22. She lobbied as long as she could, but as autumn loomed, she realized that she had to act. She prepared the petition and mailed it off to the Tax Court on the deadline day.

Except the deadline day was actually September 15, a week earlier. The Tax Court dismissed her petition on jurisdictional grounds, holding that even incorrect guidance from IRS agents (the court had to treat her factual allegations as true) can’t overcome a jurisdictional bar.

Today the Fourth Circuit affirms. This is important because it contains a first impression holding (at least in this circuit) that the 90-day limit is indeed jurisdictional, and is not subject to equitable tolling. The statute permitting Tax Court appeals refers to the court’s jurisdiction, and conditions that jurisdiction on a timely filing. Thus, no matter how sympathetic the Wife’s circumstances, she’s out of court.

The Wife should have done two things here. First, as I’ve set out above, never file anything jurisdictional on the last day. File early and get a good night’s sleep. Second, she should have done the 90-day math herself instead of relying on someone else. Most of us would recognize that 90 days after the June 17 notice is not going to reach to September 22. A good lawyer might have told her that, but she was likely unrepresented at the time.

Her representation in the Fourth is noteworthy: a law student from the Harvard Federal Tax Clinic. Although she didn’t prevail, it appears that Allison Bray, soon to pin an Esq. onto her name, is off to a good professional start, getting a published opinion from a federal circuit court before getting a law degree.