#DFG: Canceling the Noise
- Thread starter nattysez
- Start date
simplyeric said:
No. I know you're likely kidding, but as a point of information, the reason why he can't is the doctrine of judicial immunity. As long as the judge is acting in an area he has jurisdiction to hear, he can't be sued civilly, even if his conduct on the bench is wrongful or egregious. However, the judge *can* be arrested for criminal actions actions off the bench, civilly sued for anything off the bench, civilly sued for administrative actions as a judge (say, an employment suit), etc. There's also impeachment, disbarment, and sometimes a judicial review board. And often if the behavior is really bad, there will be something that happens "off the bench" or outside of the scope of the judge's authority - so while you can't sue the judge for his decision, you could possibly sue the judge if he directly benefits from that decision in a way that breaks the law. E.g. the PA "kids for cash" cases.
Well, ideally you'd like to provide some guidance if you're going to order a remand. May TB be suspended for these alleged offenses or not? That's a pivotal issue on the punishment that is most significant. That issue is squarely presented, and I would be inclined to rule on everything.Steve Dillard said:
Meh, when something is, at its core, a farce, it seems wholly fair and reasonable to treat it as such once in a while. Back to our regularly scheduled fear and loathing.DrewDawg said:
Why would Berman grant Brady an injunction? He would not expect to be overturned; as I understand it, a Brady appeal would be a real long shot.
lambeau said:
It's no more of a long shot (depending somewhat on how the order is written) than it is in the district court. The judge doesn't need to think his ruling was incorrect to issue a stay. There are four factors that get considered: (1) likelihood of success on the merits; (2) irreparable harm; (3) injury to the other party; and (4) public interest. The courts use a sliding scale, such that certain injury can overcome lower likelihood of success, and vice versa. In light of the potential harm to Brady, Berman could issue a stay of his ruling based on the fact that the case presents serious legal questions.
DrewDawg said:
Yeah, Berman very well could.
lambeau said:
dcmissle said:
Yeah, not uncommon at all. I think the standard, when there is clear irreparable injury, is whether there is a "close," "substantial" or "serious" question on appeal. Since failure to grant a stay would render the appeal moot or mostly moot, there are strong grounds.
Even if he doesn't, the arguments in the Second Circuit are also pretty good, because without a stay, you render the appeal moot and deprive the Court the opportunity to effectively hear the case.
WayBackVazquez said:
The standard for a stay pending appeal is actually a bit different (close but a little different) -- that's the standard for an injunction in general. For a stay pending appeal, you need irreparable injury and a decent chance of success on appeal.
DennyDoyle'sBoil said:
I took the factors directly from the Supreme Court in Nken v. Holder.
The DC Circuit has recognized that "the test for 'a stay or injunction pending appeal is essentially the same.'" Al-Anazi v. Bush, 370 F. Supp. 2d 188, 193 & n.5 (D.D.C. 2005).
Gary Myers @garymyersNYDN 1m1 minute ago
NFL never made formal settlement offer, but indicated willing to cut suspension to 3 games if Brady admitted DeflateGate guilt. No deal.
NFL never made formal settlement offer, but indicated willing to cut suspension to 3 games if Brady admitted DeflateGate guilt. No deal.
Like a car salesman willing to knock $100 off the sticker price, so long as he doesnt have to fill the gas tank to get it off the lot.soxhop411 said:
"I'll take $100 off the sticker price if you are willing to go without a warranty"
"Nope"
"OK thanks."
"Nope"
"OK thanks."
The final game of what would be Brady's suspension 4 game suspension is a hot ticket: http://money.cnn.com/2015/08/31/news/companies/hottest-nfl-ticket-brady-suspension/index.html?iid=hp-stack-dom
Not. Gonna. Happen.
Not. Gonna. Happen.
If that really was their stance, ummmm.... wow.
So even if Berman does rule for the NFL (which I find harder and harder to believe, but still a possibility), I'm guessing this is going to be one hell of a scathing opinion.
Not over the top screaming scathing, but the worse kind where it's just a cold calculated eviscerating you and your arguments to pieces kind.
So even if Berman does rule for the NFL (which I find harder and harder to believe, but still a possibility), I'm guessing this is going to be one hell of a scathing opinion.
Not over the top screaming scathing, but the worse kind where it's just a cold calculated eviscerating you and your arguments to pieces kind.
WayBackVazquez said:
I think what's a bit interesting from the Second Circuit's standard for stay pending appeal is that it looks to "irreperable" injury for the non-movant instead of just "injury," which I don't think is necessarily inconsistent with Niken. That was a pretty unique context, but it seems to me that the difference potentially matters. The injury-to-the-other-party factor almost always is maleable by the party ginning up the opposition to a say, but the Second Circuit's requirement (assuming Torres is still good law after Niken) that the opposing party must show irreparable injury seems potentially to matter here. The NFL has lots of injuries it could claim here, I suppose, in trying to ward off a stay pending appeal -- commissioner's authority, whatever -- but the only possible irreparable injury it could show, I guess, would be an argument that Brady might retire and thus avoid punishment.
Also, what I like about the Torres formulation is that it tries to quantify what it means to have a likelihood of success on appeal, which can be slightly different from what the likelihood of success prong when seeking an injunction. I think there are some circuits, for example, that have noted that "on the merits" is either wrong or must be interpreted super broadly in the stay pending appeal context. "Success on appeal" is often but certainly not always co-extensive with success "on the merits." For example, you could argue procedural error in the district court that doesn't go to the underlying merits that would present a basis for reversal and thus support a stay pending appeal.
soxhop411 said:
As always, I'm making the mistake of applying logic to this situation, but if Berman strongly suggested to the NFL that it would be in their best interests to settle, it's hard to imagine that this would be the best offer they put on the table. Which means that Berman never tipped his hand about how he was going to rule or the NFL took a shockingly hard line (or both).
If Myers is leaking for the NFL, is that supposed to be an honest attempt at a settlement? Is that what we are supposed to get out of that leak?
GregHarris said:
If it is an NFL leak my guess is that the NFL thinks they're going to lose, they want to say that they're playing tough but fair with cheating cheater Tom Brady and will give him a break if he comes clean, and that they're reading to say they were shocked shocked shocked when the judge went crazy and vacated the decision because we all know based on exponent and the deflator tests that Tom is a cheating cheater who cheats..
nattysez said:
Actually, if these reports are true that the NFL took this hard line, it actually makes me less optimistic not more optimistic. Much of the reason we're happy about Berman is that he gave a harder time to the NFL than Brady during the last hearing, but that would be less grounds for being happy if that was mainly to put on a show to try to get the NFL to be more reasonable.
nattysez said:
Many folks here have postulated that the NFL is less interested in settling and more interested in holding a hard line on any issue of player discipline.
That may turn out to be a self-defeating strategy (I believe it will be) but it's been apparent for some time that this is the hill they are willing to die on.
heads up... He will be on WEEI at the top of the hour
Dale Arnold @DaleEArnold 17s17 seconds ago
We talk to @garymyersNYDN at 5 PM about the so-called "settlement offer" made by @NFL and the million or so reasons that #TB12 declined.
Dale Arnold @DaleEArnold 17s17 seconds ago
We talk to @garymyersNYDN at 5 PM about the so-called "settlement offer" made by @NFL and the million or so reasons that #TB12 declined.
The mistake isn't applying logic. It's in believing that the NFL's ultimate goal is to win in court. I see that as a means to an end.nattysez said:
Average Reds said:
Yep - and, of course, it could also be that Goodell simply didn't want to have to answer questions from the Ravens and Colts about why he settled, since any answer would have to include that the court was going to find that the investigation was botched, proper notice hadn't been provided, etc. Now he can just throw up his hands and say "I did my best, but an activist judge screwed us."
Edit: Myt1 said it more succinctly...
DennyDoyle'sBoil said:
We're in the 8th. And it's not their first rodeo with Brady.
When considering a motion to stay pending appellate review, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987).
The court must "consider the relative strength of the four factors, balancing them all." Brady v. Nat'l Football League, 640 F.3d 785, 789 (8th Cir. 2011) (internal quotations marks and citation omitted).
No kidding? I thought it was filed inDrewDawg said:
Well, the 2nd it is. http://www.nytimes.com/2015/07/31/sports/football/tom-brady-suit-to-be-heard-in-new-york.html?_r=0
I think you're placing far too much weight on language in one case that was not primarily concerned with the stay factors. I have seen Second Circuit and SDNY cases both pre and post-Nken that use the "substantial" rather than irreparable injury language, and analyze a stay in the traditional sliding scale (primarily for the first two factors) manner using the four factors.DennyDoyle'sBoil said:
A quick google in the car comes up with one from SDNY written by my favorite jurist.
https://scholar.google.com/scholar_case?case=2571947736946721031&hl=en&as_sdt=2006