Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, March 9, 2020

About that alteration to your quotation....

While judges have lots of complaints about briefs, the two most common complaints from judges we saw in working on the third edition of Winning on Appeal were the following: (1) briefs are too long, and (2) attorneys misstate the law and record.  Recent changes to the Federal Rules of Appellate Procedure have tried to tackle the first complaint, but the second one remains an issue, as seen in a recent Ninth Circuit decision.

The case, which was up on an interlocutory appeal from the denial of summary judgment, involves several issues, including whether the Interstate Commerce Commission Termination Act "'preempts' treaty-based federal common law that allows tribes to exclude non-Indians from Indian land."  BNSF, the appellant railroad company, argued that it did.  In support of its argument it relied on two cases in its brief, but as the Ninth Circuit explains in its opinion, both cases were misrepresented to the Court.  The relevant discussion starts on page 24 of the opinion:

In support of its argument, BNSF wrote in its brief:

Consistent with the statutory text, “[e]very court that has examined [Section 10501(b)] has concluded that [its] preemptive effect . . . is broad and sweeping,” forbidding “impinge[ment] on the [STB]’s jurisdiction or a railroad’s ability to conduct its rail operations.” CSX Transp., Inc., FD 34662, 2005 WL 584026, at *6 (STB Mar. 14, 2005) . . . .

BNSF Brief at 28 (emphasis added; alterations in original). BNSF misrepresented what the STB [Surface Transportation Board] wrote in CSX Transportation. The actual text of CSX Transportation reads as follows:

Every court that has examined the statutory language has concluded that the preemptive effect of section 10501(b) is broad and sweeping, and that it blocks actions by states or localities that would impinge on the Board’s jurisdiction or a railroad’s ability to conduct its rail operations[.]

CSX Transp., 2005 WL 584026, at *6 (emphasis added). BNSF would have the reader understand that the STB had written that the preemptive force of the ICCTA is the same, whether it conflicts with federal law or with state or local law. By replacing the words “blocks actions by states or localities” with the word “forbidding,” BNSF removed the qualification STB included in the actual text.

One paragraph later, BNSF wrote:

This Court, too, has held that ICCTA squarely preempts remedies that “may reasonably be said to have the effect of managing or governing rail transportation.” Ass’n of Am. Railroads v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097 (9th Cir. 2010)[.]

BNSF Brief at 28–29 (emphasis added). BNSF again misrepresented what was written. The actual text of Association of American Railroads reads as follows:

As stated by our sister circuits, ICCTA “preempts all ‘state laws that may reasonably be said to have the effect of managing or governing rail transportation,while permitting the continued application of laws having a more remote or incidental effect on rail transportation.’”

Ass’n of Am. R.R.s, 622 F.3d at 1097 (emphasis added). Again, BNSF would have the reader understand that our court had written that the preemptive force of the ICCTA is the
same, whether it conflicts with federal law or with state law. By replacing the words “all state laws” with the word “remedies,” BNSF removed the qualification we included in
our actual text and at the same time introduced a concept (“remedies”) not included in the text.

These misrepresentations would lead the unwary reader to understand that the STB and our court have both read the ICCTA to preempt broadly, without distinction between state and local law, on the one hand, and federal law, on the other. Such an understanding would, of course, benefit BNSF in this litigation. However, such an understanding is not supported by the decisions whose language is quoted in part by BNSF

As my toddler would say, "Uh oh!"  The Ninth Circuit doesn't stop there. It goes on to explain that after oral argument the panel asked the attorneys for the railroad company "to explain the manner in which they quoted these cases in their brief."  In response, they "defended[ed] their selective quotations" from the cases and said the following:

“Responding to the Court’s inquiry has led Counsel to appreciate, however, that we could have made explicit when first citing CSX and AAR that, even though these cases arose in a distinct context involving state and local law, BNSF contends they nonetheless supply the appropriate principles of law in this case. We regret not taking that approach.”

Unimpressed, the Ninth Circuit's response was that it "regret[ed] that BNSF’s attorneys wrote only that they “could have made explicit,” and that they “regret not taking that approach,” instead of acknowledging straightforwardly that they misrepresented in their brief what the STB and our court had written in those cases."  The Court went on to say, "[w]e expect better from the attorneys who appear before us."  As they should!

Misquoting or misstating the law is a fatal mistake in the practice of law.  Attorneys forget that both sides file a brief, and the other side will be quick to point out such mistakes in their briefing. Judges also have law clerks who consider it a badge of honor to identify such mistakes. When judges find such misrepresentations in briefs it leads them to conclude, as one judge said in Winning on Appeal, "that I cannot rely on anything in the brief."  Not a great position to be in if you want to win.

I hope the attorneys learned their lesson.

Thank you to the reader who alerted me to this case.

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