Do you have a "vehicle" problem for Supreme Court review when the court below did not address a separate issue that could also bar you from relief? Probably not...

You have lost in the court of appeals.  But the issue you lost on is a great candidate for Supreme Court review, so you file a petition for certiorari with that issue as the Question Presented.  The other side then opposes your petition.  Part of their argument is that, regardless of your Question Presented, the case is a bad "vehicle" for the Supreme Court because there is a separate issue in the case--not addressed by the court below--that also bars you from relief.  In other words, they are saying something like this: "Who cares about this cert issue--there's a separate problem with this particular case and the Supreme Court therefore shouldn't waste its precious time here, so cert should be denied."  

But there is a good chance that this is not a real vehicle problem.  The Supreme Court frequently takes cases that involve a separate issue that was not addressed by the court below and that may indeed be dispositive of the underlying relief you seek.  When that occurs, the Court reviews the main issue raised and simply remands the case to the court below for resolution of that second issue your opponents keep bringing up.

This concept is the centerpiece of cert-stage briefing I filed at the Supreme Court in 2016 in McNeese v. United States, No. 16-66.  The substantive issues are discussed in this post.  The Petition raised a circuit split regarding a criminal defendant's ability to seek a sentencing reduction after entering a binding plea.  The Department of Justice's Opposition acknowledged the split, but argued that a separate issue would bar my client from the sentencing reduction anyway.  Thus, they said, there is a "vehicle" problem.  What follows is the text of my Reply, which counters that there is no vehicle problem in that context.  The Court ultimately denied certiorari, but the Reply provides a framework to counter the "vehicle" argument.

The circuit split regarding Freeman v. United States: Can a criminal defendant seek a lower sentence under a retroactive sentencing amendment if that defendant entered a binding plea agreement?

The following are excerpts of a Petition for a Writ of Certiorari I filed in the Supreme Court in 2016 in McNeese v. United States, No. 16-66.  The Government filed this Opposition, and I filed this Reply.  The Court denied certiorari.    


The circuits are fully split ten to two whether Justice Sotomayor’s concurring opinion in Freeman v. United States, 546 U.S. 522 (2011), is the controlling opinion of the Court.  Freeman is a 4-1-4 decision regarding whether a defendant is eligible to seek a lower sentence under a retroactive sentencing amendment if that defendant had entered a binding plea agreement.  The en banc Ninth Circuit just answered this question, joining the D.C. Circuit and voting 10-1 that Justice Sotomayor’s opinion is not controlling—in conflict with ten circuits, including the court below.  See United States v. Davis, No. 13-30133, 2016 U.S. App. LEXIS 10661 (9th Cir. June 13, 2016) (en banc).

The question presented is as follows: 

Is Justice Sotomayor’s concurring opinion in Freeman the controlling opinion of the Court?

When a federal appeals court rules in your favor and remands for further proceedings, can the district court stop those proceedings while the other side seeks review in the U.S. Supreme Court?

You've recently won your federal appeal.  The other side sought rehearing but was unsuccessful.  Then they asked the appeals court to stay its mandate while they tried to seek review in the U.S. Supreme Court, but you successfully opposed that effort as well.  So the mandate issued.  [See this post for discussion of that process.]

But the case isn't completely over--the appeals court also remanded certain aspects of it back to the district court.  And the other side is now telling the district court to stay any remand proceedings while they seek review in the U.S. Supreme Court.  Does the district court have any authority to do so?  And if there is a defined amount of money damages due under the appellate court's ruling, is the defendant now obligated to pay?  And what if the defendant posted a bond for that amount--can you move under Rule 65.1 to force the surety to pay?

The answer to these questions are discussed in this brief I filed in the district court in 2016 with co-counsel Michael Pasternak after we obtained a reversal and remand from the Sixth Circuit in Cranpark, Inc. v. Rogers Group, Inc.  This is the opposition brief filed by the other side, and this is our reply.  Additionally, here is the Rule 65.1 motion that was filed with the brief (seeking to force the surety to pay amounts owed on the supersedeas bond).  This is the Rule 65.1 opposition by the surety, and this is our Rule 65.1 reply.

Excerpts of our main brief and our reply appear below.

Staying the Mandate of an Appellate Court While Seeking Certiorari (Translation: stopping the appellate court judgment from going into effect while trying to go to the U.S. Supreme Court)

I recently posted about a Sixth Circuit case in which the court issued an opinion reinstating a jury verdict in our client's favor.  But an appellate court's opinion does not immediately go into effect--there is time for the losing party to seek rehearing or rehearing en banc.  Only when that process concludes (or the time for it expires) does the official "mandate" issue--that mandate is what puts the opinion and judgment of the court into effect.  In our case, the losing party sought en banc review, which the court denied.  At that point, the losing party sought the extraordinary relief of staying the mandate.  They sought to stop issuance of the official mandate while they pursued an effort to seek review of the case by the U.S. Supreme Court.  Their stay motion is here.  Our opposition to their stay motion is here.  The Court denied their motion, and the mandate issued. 

What follows is the text of the brief I filed to oppose the motion to stay the mandate.

Oral argument audio on Constitutional "standing": Why a federal court was mistaken when it wiped out a $15.6 million jury verdict.

I recently posted about briefs I filed in the Sixth Circuit addressing Article III standing in a case where we successfully reinstated a $15.6 million jury verdict on behalf of a paving company.  The judges hearing the case were Richard Allen Griffin, Raymond Kethledge, and Robert H. Cleland. This is the audio of my oral argument.  The Court's opinion is here.  Trial counsel who obtained the $15.6 million verdict were Michael Pasternak and Jonathan Yarger.

What is "standing"? What is "Article III Standing"? How is that different from the "real party in interest" under Rule 17?

Below is an excerpt of a brief I filed in the Sixth Circuit in 2015 explaining the relationship between Article III Standing and the defense under Civil Rule 17 that a party is not the real party in interest.  In particular, it deals with the allegation that the injured plaintiff had sold its right to sue.  For further information, you can access the reply brief and supplemental brief I filed in this case, and the audio of my oral argument.

Our client (a paving company) received a $15.6 million jury verdict in its favor, but the trial judge concluded that our client lacked Article III Standing, which eliminated the verdict entirely.  In a unanimous opinion, the Sixth Circuit reversed, reinstating the verdict and awarding interest.  The case ultimately settled for $24 million.  The excerpts regarding the interplay of Article III Standing and Rule 17 are below.  The case is Cranpark, Inc. v. Rogers Group, Inc., Nos. 14-3753/14-3832.  Trial counsel who obtained the $15.6 million verdict were Michael Pasternak and Jonathan Yarger. 

Police shootings, "reaching for waistbands," summary judgment, and the right to a jury trial.

In October 2016, I filed a Petition for a Writ of Certiorari in Salazar-Limon v. City of Houston, No. 16-515, seeking review of a decision of the Fifth Circuit.  Excerpts of the petition are below.  The City of Houston waived a response, but the Supreme Court requested one.  The City then filed its Brief in Opposition, and we filed a Reply Brief.  

The case involves basic questions of summary judgment under Rule 56--in essence, when is a person entitled to a jury trial?  It also involves a frequent issue that arises in police shootings: How does the judicial system account for the officer's claim that he shot the person because the person allegedly "reached for his waistband"?


When a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, may a court grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did?   

How to Write a Good Reply Brief

This is the text of a short article I wrote in 2015 for Cleveland Metropolitan Bar Journal.  The link to the article as it appeared in the magazine is here.

Tips for Writing a Powerful Reply Brief


     "You Lie!"

- Rep. Joe Wilson to President Obama during a 2009 Speech to Congress

- Every Litigator Since the Dawn of Civilization When Reading the Opposition's Brief

We’ve just read the opposition brief in our big case.  Now we are considering drafting our reply brief without including the four-letter words that recently echoed from our office walls. 

How to Write a Good Opening Brief

This is the text of a short article I wrote in 2013 for The Federal Lawyer Magazine.  The link to the article as it appeared in the magazine is here.



Much ink has been spilled to improve basic legal writing, particularly with good emphasis on clarity and conciseness in crafting each section of a legal brief. It seems to me that law students and new lawyers are more and more cognizant of these “rules” for good writing. But sometimes the big picture gets forgotten in its individual parts. A compelling brief consists of more than just those well-written sections; it is a holistic document that tells your client’s story with a smooth flow, building persuasiveness from one section to the next. How do we capture that persuasive flow for the judge? We must continuously imagine what it is like for that busy judge to sit at his or her desk and pick up your brief (among perhaps 20 others that week) and assess your client’s story. Consider the following as you prepare your next brief.