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Judge Damon Keith of the Sixth Circuit turned 92 earlier this summer. Judge Keith has had a long and storied career to say the least. Also earlier this year Detroit Public TV broadcast an interview with Judge Keith discussing his career and recent biography, Crusader for Justice: Federal Judge Damon J. Keith. Watch the video here: Crusader for Justice: A Conversation with Judge Damon Keith.
Howard Bashman's How Appealing is due credit for bringing this to my attention.
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Usually, in fact, almost always, an appellate opinion beginning with a narrative foreshadows the result, as the Court's view of the losing party becomes clear early on. But not always as shown by the Sixth Circuit's decision today in McKelvey v. United States Army, No 13-2427, which begins as follows:
After suffering severe wounds while serving in Iraq, James McKelvey did not receive the welcome home he deserved. He obtained a civilian job with the Army, but he faced relentless harassment at work based on his war injuries, leaving him no choice but to quit. McKelvey sued the Army for disability discrimination, and a jury awarded him millions in front pay.
This beginning makes it look good for McKelvey, a severely wounded war veteran who has returned home and resolutely carried on with life but was met with such unyielding hostility from hateful pinheads that he had "no choice but to quit." One wonders how much it would take to make a severely wounded vet quit. The jury understood it, it appears, and reflected that understanding in its verdict. But the Sixth Circuit notes next how it had previously taken away all the money the jury awarded and then goes on to approve the district court's reduction of McKelvey's attorney's fee award, finding that McKelvey's refusal to accept reinstatement to the employment that had left him "no choice but to quit" was unreasonable. One marvels at how an employee left with "no choice but to quit" a job could also be unreasonable in rejecting an offer to resume that job in exchange for dropping his lawsuit. As the Sixth Circuit itself says, "We think not."
The Sixth Circuit's opinion was written by Circuit Judge Jeffrey Sutton and joined by Circuit Judge Richard Griffin and Senior Circuit Judge Alan Norris.
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Way back in the early 90's Edward Young got convicted of two burglary-related felonies, the last of this rather small-time crime being in 1992. Some or nearly 20 years later he came into possession of 7 shotgun shells while helping a neighbor clean out her house folloing her husband's death. The prior felony convictions made it unlawful for Young to possess the shells, something he did not know. In any event, he was charged and based on these two prior felony convictions over 20 years earlier determined to be subject to the Armed Career Criminal Act (ACCA) and its 15-year mandatory minimum sentence. The case is United States v. Young, No. 13-5714 (6th Circuit, September 11, 2014).
Young raised an 8th Amendment constitutional challenge to the 15 year sentence, which the Sixth Circuit rejected in a curious per curiam opinion. Judge Jane Stranch, in a concurring opinion, lamented the law she saw the panel bound to apply and the grossly disproportionate sentence that the ACCA required be imposed on Young, lamenting as follows:
I therefore join the continuous flood of voices expressing concern that the ACCA and other mandatory minimum laws are ineffective in achieving their purpose and damaging to our federal criminal justice system and our nation. I commend this case as another example of the need to reconsider the ACCA and mandatory sentencing in general.
There is further discussion of the Young decision at Sentencing Law & Policy (whose Prof. Doug Berman filed an amicus brief and argued in Young's favor) and a Richard M. Re's Re's Judicata, A "Shell" Game in the Sixth Circuit.
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