In Uncategorized on 10/06/2020 at 15:20

The Continuing Legal Education merchants are big on winning before trial. While I am no merchant, I agree with the premise, especially where Section 7623 is in play. And even more especially post-Van Bemmelen. You must go all-in at once. As we saw with David Shaun Neal, if you haven’t made sure your stuff gets into the sacred administrative record (“AR”) the best you can hope for is an evidentiary hearing; and unless you’re a good trial lawyer, you will lose. See my blogpost “Blown Alone,” 9/28/20.

For those who missed the debut of Van Bemmelen, see my blogpost “Administering Supplements,” 8/27/20.

With only three (count ’em, three) ways to supplement the AR, and such supplementation being looked at askance by the CCAs, see what happens to Amelia Carlson, Docket No. 6794-19W, filed 10/6/20.

Granted, Amelia’s case isn’t the strongest, and her belated material is…well… I’ll let ex-Ch J Michael B (“Iron Mike”) tell you.

“Three of the four exhibits in question are dated or were generated in 2020 and consequently could not have been before the WBO when it considered petitioner’s claims in 2019. Insofar as the record shows, the materials comprising the fourth exhibit and relating to an unlawful detainer/eviction proceeding brought against petitioner in 2018 were never presented to the WBO although such a proceeding is alluded to in the attachment to petitioner’s Form 211.” Order, at p. 4.

If you’re going to use schedules and tables, generate them pre-Form 211 and attach them. If you’re going to refer to litigation bearing on your case, attach the papers. I know it’s ecologically unsound, but print the e-mails, unless you can drop them to a CD-ROM or flashdrive. And timeline; lay out the chronology.

And bear in mind: “Although it is sometimes appropriate to consider extra record information, this ‘is the exception, not the rule.’ Theodore Roosevelt Conversation [sic] P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010).” Order, at p. 5.

I think you meant “Theodore Roosevelt Conservation P’ship,” Judge; a conversation p’ship is all talk, no action.

Ex-Ch j Iron Mike is impatient, as usual, with the objections to the much-loved Ogden Sunseteers’ “and/or” weasel-wording in the “FINAL DECISION UNDER SECTION 7623(a)”, which at last ends the formerly customary epistolary volleying. ” The record shows, however, that Ms. P, having investigated petitioner’s claims by retrieving the targets’ account transcripts, explicitly premised her recommended rejection of the claims on conclusions both that the allegations were ‘purely speculative’ and that they lacked adequate substantiation.” Order, at p. 7. (Name omitted).

I know, those who need it won’t read it, and those who read it don’t need it. But it is still worth putting on the record.


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