The Ninth Circuit Federal Court of Appeals just ruled that the government overstepped itself in seizing the 2003 drug test results of MLB players, other than the 10 BALCO-related players for whom they had warrants. This reverses the decision of a three-judge appellate panel from the same court, which had previously decided that the government acted properly in uncovering the names of all the players who had tested positive for PED. As a result of the ruling, the government has been ordered to return all materials and data not related to the 10 players for whom they had a warrant. A summary of the decision can be found here.
While this is a big victory for MLB and the MLBPA–as well as fans of the right to privacy–there are caveats. First of all, like the previous Ninth Circuit decision, this 11-judge en banc decision was not unanimous. It’s possible that the government could ask the Ninth Circuit to reconsider its decision again, or they could pursue an appeal to the US Supreme Court, so this is likely far from over. The other big caveat is that, as the various and repeated leaks of names from the reported 104 players who tested positive for performance enhancers that season show, it may be impossible to put the toothpaste back in the tube, no matter what happens in a court of law.
Actually, it wasn't a whole panel. The Ninth Circuit is so big that they have a "limited" en banc procedure, by which 11 of the circuit's 29* active judges are randomly selected to hear the case. So the government could go back for a full en banc decision--although they would do so with nine votes already against them, against five in their favor. I'm not sure about the Supreme Court's track record of granting cert based on limited en banc decisions, so going back to the full court might be necessary before they proceed to the Supremes.
(* According to Wikipedia, there are two empty seats on the circuit; I'm not sure if that leaves a full en banc with 29 or 27 justices.)
Derek, thanks for the clarifying comment to my unclear assertion. I had thought there was no mechanism for anything other than the limited en banc the Ninth practices, but a quick check shows that there apparently is a way to do that.
Still, in 2003, Kozinski said the Ninth had never had a full en banc hearing (limited en banc having worked sufficiently well since its inception.) See: http://www.fedbar.org/Kozinski_testimony.pdf.
My understanding - and I don't practice federal law and could well be wrong - is that hasn't changed and that the Ninth has not had a full en banc hearing since they changed the rules decades ago to the limited en banc. I believe that the limited en banc decisions have been reviewed by the Supreme Court many times.
(Sorry, non-lawyers. Soon, you will be back to your regularly scheduled programming on this issue: Steroids! Steroids, steroids, steroids! Also, I think Derek knows way more about federal practice than I do.)
You're being too modest. I never did any federal appellate practice, so all my knowledge of that is leftovers from law school and bits of book learnin' I've done along the way.
I'd also like to thank you for pointing out Orin Kerr's analysis on Volokh. I'd seen an article by him on this topic last year, but I didn't know that he'd stuck with it through the en banc arguments and decisions. Highly recommended.
I went and read the analysis at Volokh.com and I'd recommend anyone else interested in this topic do likewise. It's a fascinating rundown of the "plain view" exception to search warrants and how it applies in the virtual world of computer searches. Especially make sure to read his original analysis of the case from December 2008.
As jrmayne states, it does look like the Ninth really went out on a limb here, rewriting Fourth Amendment law in the process.
It's not so much a question of trying to put the toothpaste back into the tube. Rather, at this stage, it's that from a legal standpoint the government cannot use the "poisoned information" from their previous illegal data seizure to take any legal action against any player who was not one of the Balco 10.
True. But the real threat to the players and the MLBPA isn't so much official government action--it's extremely unlikely that the feds would pursue a case against the players who weren't on the warrant to begin with--but exposure. And, with the flotilla of lawyers, staff, and assorted others who've gained knowledge of the test results through this litigation, the likelihood of the confidential results staying confidential seems pretty low.
As is seen by the reactions to Big Papi and A-Rod, the issues aren't legal, they are PR related. The truth of the matter is that if the MLB weren't so interested in trashing its players or product, they'd be working to bury the 2003 names as hard as possible. There's no way that they could take any action against anyone who tested positive before there were penalties in place, and in having these names running around slanders players who a) did nothing wrong (from a baseball standpoint) and b) obviously have followed the rules since PED's were outlawed. This is like retroactive prosecution. Or going back and saying something like, "Elvis Presley took Marjuana in the 1950's". He might have or not, but since it wasn't illegal, no one cares. Just like no one cares about Edgar Allen Poe's Heroin addiction.
Ok, some people care. People with an axe to grind against athletes who work and train and sweat 12 months out of the year to stay in peak physical shape. Athletes who make millions of dollars a year. Maybe these people who care are the types who, perhaps, travel from city to city, attend hundreds of games, stay at crappy hotels and have to deal with sweaty, tired athletes who won't grant them the exclusive memorable quote they can manage to squeeze into their game story, sometime between the 11:05 last pitch and the 12:00 news deadline. Or those other writers who don't travel with the team, who sit in an office (or bar) somewhere and catch 10 games a year on TV, but also follow basketball, football, Ice Hockey, and Pro Beach Volleyball. Those writers who are just looking for something to whine about. Something to get someone commenting on their blog.
You can add to the list people who care about how the steroid issue robbed some clean marginal players of jobs and other clean players of better contracts and people who care about the safety of the players, as steroid use is not good for your health and you shouldn't feel like you have to take illegal or poorly-regulated drugs to have a level playing field at your work place.
It's probably a pretty dull axe by now. Anyway, it's probably fallout from all the commentary/spam from BP Idol... or for my transcription skills, also from BP Idol.
It doesn't matter that it was true....legally, the information should have never become public. From a practical standpoint however, I don't think there is any legal recourse for players, as a lawsuit would bring even more bad PR and likely cost even more in enodorsements. The only reason anyone would sue is if the principle was more important to them than the money....and good luck on that.
It unfortunate that so few of us are more outraged by the leak than the PED use. The culprits won't be found because there isn't enough interest in finding them.
He was operating in an environment where all parties had agreed to keep the information secret. That it isn't secret is someone's fault, and that someone isn't A-Rod.
Just thought I'd mention that when I saw the link to the unfiltered post from the BP home page that said "Court of Appeals Rules Drug Tests Improperly Seized by Derek Jacques", I thought "wait, Derek Jacques was involved in seizing the drug tests?"
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Just heard they intend to file an appeal. Not sure if that means full panel or Supremes.
This was an en banc decision - this was the whole panel, as Derek notes.
It's a decidedly unusual decision in a lot of ways. I recommend Orin Kerr's posts on the subject at www.volokh.com.
I don't think the very specific procedural rules set up by the Ninth will hold up. Of course, I could be wrong.
Actually, it wasn't a whole panel. The Ninth Circuit is so big that they have a "limited" en banc procedure, by which 11 of the circuit's 29* active judges are randomly selected to hear the case. So the government could go back for a full en banc decision--although they would do so with nine votes already against them, against five in their favor. I'm not sure about the Supreme Court's track record of granting cert based on limited en banc decisions, so going back to the full court might be necessary before they proceed to the Supremes.
(* According to Wikipedia, there are two empty seats on the circuit; I'm not sure if that leaves a full en banc with 29 or 27 justices.)
Derek, thanks for the clarifying comment to my unclear assertion. I had thought there was no mechanism for anything other than the limited en banc the Ninth practices, but a quick check shows that there apparently is a way to do that.
Still, in 2003, Kozinski said the Ninth had never had a full en banc hearing (limited en banc having worked sufficiently well since its inception.) See: http://www.fedbar.org/Kozinski_testimony.pdf.
My understanding - and I don't practice federal law and could well be wrong - is that hasn't changed and that the Ninth has not had a full en banc hearing since they changed the rules decades ago to the limited en banc. I believe that the limited en banc decisions have been reviewed by the Supreme Court many times.
(Sorry, non-lawyers. Soon, you will be back to your regularly scheduled programming on this issue: Steroids! Steroids, steroids, steroids! Also, I think Derek knows way more about federal practice than I do.)
You're being too modest. I never did any federal appellate practice, so all my knowledge of that is leftovers from law school and bits of book learnin' I've done along the way.
I'd also like to thank you for pointing out Orin Kerr's analysis on Volokh. I'd seen an article by him on this topic last year, but I didn't know that he'd stuck with it through the en banc arguments and decisions. Highly recommended.
I went and read the analysis at Volokh.com and I'd recommend anyone else interested in this topic do likewise. It's a fascinating rundown of the "plain view" exception to search warrants and how it applies in the virtual world of computer searches. Especially make sure to read his original analysis of the case from December 2008.
As jrmayne states, it does look like the Ninth really went out on a limb here, rewriting Fourth Amendment law in the process.