Belfast Project: Boston College Seeks To Vacate Judge Young’s Order And Dismiss Its Own Appeal

Yesterday, Boston College filed a Suggestion of Death of Dolours Price. The procedure is a little odd, since Ms. Price was not a party to the proceedings: FRAP 43(a)(1) provides:

If a party dies after a notice of appeal has been filed or while a proceeding is pending in the court of appeals, the decedent’s personal representative may be substituted as a party on motion filed … by any party. … If the decedent has no representative, any party may suggest the death on the record, and the court of appeals may then direct appropriate proceedings.

The purpose of the filing is to suggest to the Court that in light of Ms. Price’s death the appeal, and indeed the whole action is moot. Why? According to BC, “The Commissioner’s August 2011 subpoenas to Boston College … captioned the proceedings as ‘in criminal matters in the matter of Dolours Price.'” I think the suggestion is that the UK authorities sought judicial assistance solely for the purpose of investigating Ms. Price, with an eye to bringing charges against her. Given that the government has made filings under seal about the UK investigation, I don’t know that that’s true, and I don’t know that BC knows whether it’s true. But in any case, that’s BC’s argument.

The mutual legal assistance treaty between the US and the UK provides that judicial assistance is unavailable “for matters in which the administrative authority anticipates that no prosecution or referral, as applicable, will take place.” So if the only target of the investigation was Ms. Price, then, BC reasons, there is no basis for a request for legal assistance. On this basis, BC asks the Court to vacate Judge Young’s decision and to dismiss the appeal.

My guess—it’s only a guess—is that the government will respond that the investigation was not limited to Ms. Price. If that’s what happens, then I think BC is unlikely to get what it wants. But I do want to point to the procedural wrinkle here. As I noted at the outset, Ms. Price is not a party. I don’t know offhand of any precedents on whether FRAP 43(a)(1) applies where a putative defendant in a criminal proceeding dies but where the actual action before the court involves a case that is ancillary to the criminal case. I hope that additional filings will enlighten us on this issue.

Can Moloney & McIntyre make a similar submission to the Supreme Court under its Rule 35(1)? The relevant rule is Rule 35, which provides:

If a party dies after the filing of a petition for a writ of certiorari to this Court … the authorized representative of the deceased party may appear and, on motion, be substituted as a party. If the representative does not voluntarily become a party, any other party may suggest the death on the record and, on motion, seek an order requiring the representative to become a party within a designated time. If the representative then fails to become a party, the party so moving, … if a petitioner …, is entitled to proceed as in any other case of nonappearance by a respondent … . If the substitution of a representative of the deceased is not made within six months after the death of the party, the case shall abate.

Note that this rule raises the same question about whether Ms. Price is a party or not. But in addition, it differs in its particulars from FRAP 43. The Supreme Court’s rule doesn’t permit a party to file a suggestion of death, but rather requires the party to seek to compel the appearance of the decedent’s representative. Again, let’s hope that filings in the Supreme Court enlighten us on these questions.

If BC is right about the scope of the UK authorities’ investigation, then there is also a question of subject matter jurisdiction, leaving aside the procedural details about substitution of parties: if the controversy is entirely moot, then the federal courts lack subject matter jurisdiction, though there are exceptions (e.g., for cases “capable of repetition but evading review”) that may or may not apply.

I will keep you posted on further developments!

Update: Yesterday, the Supreme Court issued an order extending the government’s time to respond to M&M’s petition for a writ of certiorari to March 4. There’s no explanation on the docket. My guess? The government asked for more time after Ms. Price’s death in order to figure out the implications of her death on the case from its point of view. That’s just a guess, though.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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