Patent.
No plain error in Patent Board's refusal to accept new evidence offered solely on the basis of timeliness and relevance. Agency has discretion, not arbitrary/capricious.
Use of a fog machine to test for leaks in a conduit was not particularly obvious.
[Again, we don't know many things, but we especially don't know Patent.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1047.Opinion.12-29-2015.1.PDF
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Ninth Circuit - James Styers v. Charles Ryan
Habeas/AEDPA.
Very complex. Here's our best guess on a first read:
When a state court re-evaluates a capital sentence due to a Federal Habeas writ, the case remains under collateral appeal, and is therefore not subject to non-retroactive changes in the substantive law.
In this case, the state court can consider a mitigating factor in a plenary consideration (whether Arizona's procedure here is genuinely de novo appears to be an open question) and impose the capital sentence without sending the case to a jury.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-16952.pdf
Very complex. Here's our best guess on a first read:
When a state court re-evaluates a capital sentence due to a Federal Habeas writ, the case remains under collateral appeal, and is therefore not subject to non-retroactive changes in the substantive law.
In this case, the state court can consider a mitigating factor in a plenary consideration (whether Arizona's procedure here is genuinely de novo appears to be an open question) and impose the capital sentence without sending the case to a jury.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-16952.pdf
Ninth Circuit: Adobe Systems v. Joshua Christenson
IP - Copyright & Trademark
Where a first sale defense to copyright infringement is argued, the party asserting the defense has the burden to prove the sale, but the party claiming infringement has the burden to prove that the apparent sale was actually a license.
General testimony and generic licensing templates do not suffice for proof that a specific transaction was a license.
An assertion that goods were sold under the correct mark, but without the consent of the owner of the mark speaks to unfair competition, not infringement.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-17371.pdf
Where a first sale defense to copyright infringement is argued, the party asserting the defense has the burden to prove the sale, but the party claiming infringement has the burden to prove that the apparent sale was actually a license.
General testimony and generic licensing templates do not suffice for proof that a specific transaction was a license.
An assertion that goods were sold under the correct mark, but without the consent of the owner of the mark speaks to unfair competition, not infringement.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-17371.pdf
Ninth Circuit: David Correo-Ruiz v. Loretta Lynch
Immigration.
When a petitioner asserts a reliance on prior precedent and there is a genuine issue of retroactivity, but the record is insufficient to describe the claim, the case should be remanded to the agency for the development of the record.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-72126.pdf
When a petitioner asserts a reliance on prior precedent and there is a genuine issue of retroactivity, but the record is insufficient to describe the claim, the case should be remanded to the agency for the development of the record.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-72126.pdf
Ninth Circuit: Jacquelynn Dorrance v. USA
Tax.
Stock acquired by policyholders upon demutualization of a life-insurance company is taxable, as premiums paid were solely for the defined benefit, and not an accrual of value.
Dissent: Value was accrued beyond the level of anticipated benefit prior to the IPO.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-16548.pdf
Stock acquired by policyholders upon demutualization of a life-insurance company is taxable, as premiums paid were solely for the defined benefit, and not an accrual of value.
Dissent: Value was accrued beyond the level of anticipated benefit prior to the IPO.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-16548.pdf
Ninth Circuit: DM Residential Fund II v. First Tennessee Bank DM
Property - rescission.
Lack of electrical service constitutes inquiry notice for lack of utility easement.
Dissent (Koz): No duty to investigate in the statute; no proof that they could have investigated; potential fraud claims are TKO'd by summary judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-56309.pdf
Lack of electrical service constitutes inquiry notice for lack of utility easement.
Dissent (Koz): No duty to investigate in the statute; no proof that they could have investigated; potential fraud claims are TKO'd by summary judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-56309.pdf
Seventh Circuit: USA v. Antonio West
Expert testimony - mental handicap.
Where expert testimony on the mental capacity of the defendant can undercut the reliability of a confession, it is admissible on those grounds.
Non-expert testimony subject to the discretion of the court.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-30/C:14-2514:J:Sykes:aut:T:fnOp:N:1679527:S:0
Where expert testimony on the mental capacity of the defendant can undercut the reliability of a confession, it is admissible on those grounds.
Non-expert testimony subject to the discretion of the court.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-30/C:14-2514:J:Sykes:aut:T:fnOp:N:1679527:S:0
Fifth Circuit: Bd. of Trs. Local 392 v. B&B Mech. Servs.
Labor - agency.
Employer's membership in trade negotiating organization sufficed to bind it to the CBA, even though written authorization to bind the employer was never issued.
Secondary certification writings incorporated the unexpired CBA.
http://www.ca6.uscourts.gov/opinions.pdf/15a0301p-06.pdf
Employer's membership in trade negotiating organization sufficed to bind it to the CBA, even though written authorization to bind the employer was never issued.
Secondary certification writings incorporated the unexpired CBA.
http://www.ca6.uscourts.gov/opinions.pdf/15a0301p-06.pdf
Fourth Circuit: Eddy Etienne v. Loretta Lynch
Immigration.
Expedited removal procedures allow aliens no opportunity to raise matters of law related to their deportation - Circuit split flagged.
Checkbox on a form indicating that documents are attached is an insufficient avenue to raise matters not addressed in the other checkbox options.
As Congress implicitly incorporated the common law definition of the crime, a conviction on a state charge of Conspiracy that doesn't require the overt act in furtherance usually required in the modern law still qualifies.
http://www.ca4.uscourts.gov/Opinions/Published/142013.P.pdf
Expedited removal procedures allow aliens no opportunity to raise matters of law related to their deportation - Circuit split flagged.
Checkbox on a form indicating that documents are attached is an insufficient avenue to raise matters not addressed in the other checkbox options.
As Congress implicitly incorporated the common law definition of the crime, a conviction on a state charge of Conspiracy that doesn't require the overt act in furtherance usually required in the modern law still qualifies.
http://www.ca4.uscourts.gov/Opinions/Published/142013.P.pdf
Eleventh Circuit: Glenaan Robbins v. Garrison Property and Casualty Insurance Company
Statutory construction
A no-fault insurance law that awards one level of damages where a medical professional has determined that an emergency existed and a second level of damages where a medical professional determined that an emergency did not exist awards the latter damages when no medical professional opinion was obtained.
http://media.ca11.uscourts.gov/opinions/pub/files/201413724.pdf
A no-fault insurance law that awards one level of damages where a medical professional has determined that an emergency existed and a second level of damages where a medical professional determined that an emergency did not exist awards the latter damages when no medical professional opinion was obtained.
http://media.ca11.uscourts.gov/opinions/pub/files/201413724.pdf
Eleventh Circuit: Brad Buehrle v. City of Key West
First Amendment - Tattoos
Where the designs are not rote application of standardized designs, making tattoos is a form of expression protected by the First Amendment.
No proof in record that allowing tattoo shops would injure neighborhood's character or harm tourism.
Quoting Jimmy Buffett does not suffice.
http://media.ca11.uscourts.gov/opinions/pub/files/201415354.pdf
Where the designs are not rote application of standardized designs, making tattoos is a form of expression protected by the First Amendment.
No proof in record that allowing tattoo shops would injure neighborhood's character or harm tourism.
Quoting Jimmy Buffett does not suffice.
http://media.ca11.uscourts.gov/opinions/pub/files/201415354.pdf
Tenth Circuit: Jones v. Norton
S1983 -- Fourth Amendment.
Where the forensic evidence tends to indicate that the plaintiff's theory of the incident is not supported, summary judgment for the deft is appropriate.
Treaty with the tribe does not confer a right that can be remedied by S1983, as the treaty right of action lies only against the USA.
Assertions of general racism against tribe members were insufficient to prevent summary judgment on conspiracy.
Motions to amend state law tort IIED claims were either untimely by the scheduling order or would not have related back.
No spoiliaton, as FBI had custody, and police manipulation of corpse was immaterial.
As plaintiffs did not timely object to magistrate's order of costs, it is not appealable.
https://www.ca10.uscourts.gov/opinions/14/14-4040.pdf
Where the forensic evidence tends to indicate that the plaintiff's theory of the incident is not supported, summary judgment for the deft is appropriate.
Treaty with the tribe does not confer a right that can be remedied by S1983, as the treaty right of action lies only against the USA.
Assertions of general racism against tribe members were insufficient to prevent summary judgment on conspiracy.
Motions to amend state law tort IIED claims were either untimely by the scheduling order or would not have related back.
No spoiliaton, as FBI had custody, and police manipulation of corpse was immaterial.
As plaintiffs did not timely object to magistrate's order of costs, it is not appealable.
https://www.ca10.uscourts.gov/opinions/14/14-4040.pdf
Tenth Circuit: Shimomura v. Carlson
S1983 - TSA screeners
Qualified immunity upheld for arrest/conspiracy when an agent arrests a passenger for assault, claiming that the passenger stopped suddenly and rolled a bag backwards into the leg of a second officer following behind, who then didn't deny it. No procedural DP claim.
Dissent: As to the arresting officer, a question of material fact as to whether the elements of assault could even have been perceived.
https://www.ca10.uscourts.gov/opinions/14/14-1418.pdf
Qualified immunity upheld for arrest/conspiracy when an agent arrests a passenger for assault, claiming that the passenger stopped suddenly and rolled a bag backwards into the leg of a second officer following behind, who then didn't deny it. No procedural DP claim.
Dissent: As to the arresting officer, a question of material fact as to whether the elements of assault could even have been perceived.
https://www.ca10.uscourts.gov/opinions/14/14-1418.pdf
Tenth Circuit: Hagos v. Raemisch
Habeas - case/controversy, standing.
A Federal habeas petition presents a valid case or controversy with a valid means of redress when the collateral proceeding seeks to challenge one of two concurrent life sentences, where the second conviction is also subject to challenge, as the reversal of the conviction might affect the second collateral challenge.
https://www.ca10.uscourts.gov/opinions/14/14-1497.pdf
A Federal habeas petition presents a valid case or controversy with a valid means of redress when the collateral proceeding seeks to challenge one of two concurrent life sentences, where the second conviction is also subject to challenge, as the reversal of the conviction might affect the second collateral challenge.
https://www.ca10.uscourts.gov/opinions/14/14-1497.pdf
Tenth Circuit: United States v. Tenorio
FRE - admission of polygraph.
Deft opened the door to admission of polygraph by asserting coercion.
Not unduly prejudicial -- trial court fairly weighed.
https://www.ca10.uscourts.gov/opinions/15/15-2037.pdf
Deft opened the door to admission of polygraph by asserting coercion.
Not unduly prejudicial -- trial court fairly weighed.
https://www.ca10.uscourts.gov/opinions/15/15-2037.pdf
Tenth Circuit: United States v. Edwards
4A - Search Warrants.
An affiant's testimony that obscene photos are often accompanied by suggestive photos is insufficient basis for a search warrant for obscene photos based on the presence of suggestive photos.
Good faith exception applies, as there was no need for the issuing magistrate to see the photos, the warrant wasn't impermissibly overbroad, and no affirmative misstatements.
https://www.ca10.uscourts.gov/opinions/14/14-5083.pdf
An affiant's testimony that obscene photos are often accompanied by suggestive photos is insufficient basis for a search warrant for obscene photos based on the presence of suggestive photos.
Good faith exception applies, as there was no need for the issuing magistrate to see the photos, the warrant wasn't impermissibly overbroad, and no affirmative misstatements.
https://www.ca10.uscourts.gov/opinions/14/14-5083.pdf
Ninth Circuit: USA v. Lloyd Taylor
Statutory construction - Crim.
Federal crime of making false statements to a bank need not involve a risk of loss to the bank.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/14-50528.pdf
Federal crime of making false statements to a bank need not involve a risk of loss to the bank.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/14-50528.pdf
Ninth Circuit: Alaska Wilderness League v. Sally Jewell
Environment - Denial of En Banc
Dissent from denial:
There is no Chevron ambiguity in a statute where a fixed number of criteria are established for compliance, and findings of compliance are later accorded discretion.
ESA/CWA.
Court impermissibly allows agency to define its own scope of discretion when it allows it to define a finding of compliance as mandatory when the text does not explicitly so state.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-35866.pdf
Dissent from denial:
There is no Chevron ambiguity in a statute where a fixed number of criteria are established for compliance, and findings of compliance are later accorded discretion.
ESA/CWA.
Court impermissibly allows agency to define its own scope of discretion when it allows it to define a finding of compliance as mandatory when the text does not explicitly so state.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-35866.pdf
Ninth Circuit: Mark Oyama v. University of Hawaii
Where a university's imprimatur is a prerequisite for a specific professional certification, the university is allowed deference in matters of regulation of speech by the candidate.
A candidate in a university professional certification program is not necessarily protected under the public employee speech doctrine.
A student teacher may be removed for conduct that, in the reasonable professional judgment of the university, violates defined and established professional standards which are narrowly tailored to serve the foundational mission of the program.
Programs can look to speech as an indication of likely future conduct.
Academic dismissals do not trigger due process interests so long as they are careful and deliberate.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-16524.pdf
A candidate in a university professional certification program is not necessarily protected under the public employee speech doctrine.
A student teacher may be removed for conduct that, in the reasonable professional judgment of the university, violates defined and established professional standards which are narrowly tailored to serve the foundational mission of the program.
Programs can look to speech as an indication of likely future conduct.
Academic dismissals do not trigger due process interests so long as they are careful and deliberate.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-16524.pdf
Ninth Circuit: James McKinney v. Charles Ryan
Habeas - En banc
State courts (whether of the first instance or in final de novo review) cannot impose a causal nexus test for nonstatutory mitigating factors when deliberating a capital sentence.
On Federal collateral review, there need not be a clear indication that a state court disregarded a constitutional principle -- AEDPA language controls.
Error was not structural, but also not harmless.
Dissent:
Arizona Supreme Court review was "last instance," but not "de novo."
Presumption that state court followed law.
Court of first instance considered the mitigation.
Error did not prejudice the decision.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/09-99018.pdf
State courts (whether of the first instance or in final de novo review) cannot impose a causal nexus test for nonstatutory mitigating factors when deliberating a capital sentence.
On Federal collateral review, there need not be a clear indication that a state court disregarded a constitutional principle -- AEDPA language controls.
Error was not structural, but also not harmless.
Dissent:
Arizona Supreme Court review was "last instance," but not "de novo."
Presumption that state court followed law.
Court of first instance considered the mitigation.
Error did not prejudice the decision.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/09-99018.pdf
Ninth Circuit: Americans for Prosperity Found v. Kamala Harris
First Amendment - political contributions
Collection of donor information by state Attorney General does not risk chilling of speech, or harassment by the state or the public.
Temporary injunction barring the public disclosure of the information sustained, given the possibility that the information might be subject to mandatory statutory disclosure.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/15-55446.pdf
Collection of donor information by state Attorney General does not risk chilling of speech, or harassment by the state or the public.
Temporary injunction barring the public disclosure of the information sustained, given the possibility that the information might be subject to mandatory statutory disclosure.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/15-55446.pdf
Fifth Circuit: Yaroslav Lozovyy v. Richard Kurtz, et al
Civil procedure.
Court had discretion to accept motion to dismiss after the statutory deadline and to, without specific findings, schedule a hearing later than statute permits.
In assessing claims according to Louisiana's anti-defamation statute's summary judgment requirements, courts cannot weigh evidence, assess credibility, or determine disputed contentions of material fact.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30086-CV0.pdf
Court had discretion to accept motion to dismiss after the statutory deadline and to, without specific findings, schedule a hearing later than statute permits.
In assessing claims according to Louisiana's anti-defamation statute's summary judgment requirements, courts cannot weigh evidence, assess credibility, or determine disputed contentions of material fact.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30086-CV0.pdf
Fifth Circuit: Southwest Securities, FSB v. Milo Segner, Jr.
Bankruptcy.
Costs incurred by the Trustee in maintaining the property prior to the abandonment of the interest by the secured creditor can be surcharged to the secured creditor absent evidence of direct benefit.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41463-CV0.pdf
Costs incurred by the Trustee in maintaining the property prior to the abandonment of the interest by the secured creditor can be surcharged to the secured creditor absent evidence of direct benefit.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41463-CV0.pdf
Fourth Circuit: Joshua Rich v. US
Prisons, FTCA.
As the decision to separate certain prisoners from each other is discretionary, yet implicates considerations of public policy, suit against officials is barred under FTCA.
Claims of inadequate or omitted searches of assailants should be remanded for discovery, as they implicate claims outside of the discretionary exception.
http://www.ca4.uscourts.gov/Opinions/Published/147204.P.pdf
As the decision to separate certain prisoners from each other is discretionary, yet implicates considerations of public policy, suit against officials is barred under FTCA.
Claims of inadequate or omitted searches of assailants should be remanded for discovery, as they implicate claims outside of the discretionary exception.
http://www.ca4.uscourts.gov/Opinions/Published/147204.P.pdf
Third Circuit: Laurence Kaplan v. Saint Peter's Healthcare System
ERISA, Religion -- statutory construction.
While a church agency can maintain an exempt plan, only a church can establish one.
Plain meaning.
Surplussage, Expressio unius..., Remedial statute, Statutory context.
Other statements by same sources in legislative record undermine indications to the contrary.
IRS ruling was not a rulemaking, so only accorded persuasive deference. (Christiansen, not Skidmore)
In subsequent lawmaking that seemed to legislate against the background of a contrary interpretation, Congress never evinced a detailed knowledge of the statutory scheme.
First Amendment not implicated, as churches themselves are free to set up plans.
http://www2.ca3.uscourts.gov/opinarch/151172p.pdf
While a church agency can maintain an exempt plan, only a church can establish one.
Plain meaning.
Surplussage, Expressio unius..., Remedial statute, Statutory context.
Other statements by same sources in legislative record undermine indications to the contrary.
IRS ruling was not a rulemaking, so only accorded persuasive deference. (Christiansen, not Skidmore)
In subsequent lawmaking that seemed to legislate against the background of a contrary interpretation, Congress never evinced a detailed knowledge of the statutory scheme.
First Amendment not implicated, as churches themselves are free to set up plans.
http://www2.ca3.uscourts.gov/opinarch/151172p.pdf
Second Circuit: Mantena v. Johnson
Immigration, jurisdiction-stripping, standing.
The INA's jurisdiction-stripping provisions bar challenges to the substance of the decision, not procedural questions such as adequate notice.
When statute removes jurisdiction from a court, the correct procedure is to find subject matter jurisdiction and then determine that there is no judicially cognizable right.
When the notification of a third party is a prerequisite to the assertion of a right, a party has sufficient injury-in-fact for third-party standing upon the deprivation of notice.
Prudential standing is satisfied, as the party is asserting her own right.
Administrative definitions of standing do not touch Article III standing.
Subsequent statutory scheme altered the interest of parties, so prior administrative structure not a valid basis for deprivation of fair notice.
In the new "portability" scheme, providing notice to neither the petitioner nor the second employer violates the notice requirements.
http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/doc/14-2476_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/hilite/
The INA's jurisdiction-stripping provisions bar challenges to the substance of the decision, not procedural questions such as adequate notice.
When statute removes jurisdiction from a court, the correct procedure is to find subject matter jurisdiction and then determine that there is no judicially cognizable right.
When the notification of a third party is a prerequisite to the assertion of a right, a party has sufficient injury-in-fact for third-party standing upon the deprivation of notice.
Prudential standing is satisfied, as the party is asserting her own right.
Administrative definitions of standing do not touch Article III standing.
Subsequent statutory scheme altered the interest of parties, so prior administrative structure not a valid basis for deprivation of fair notice.
In the new "portability" scheme, providing notice to neither the petitioner nor the second employer violates the notice requirements.
http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/doc/14-2476_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/hilite/
First Circuit: Buntin v. City of Boston
Discrimination.
There is no administrative exhaustion requirement for S1981 actions.
The statute of limitations began to run with the adverse personell actions, not the written warning, as the adverse etiology had yet to crystallize.
A name-clearing hearing is not constitutionally required where the speech is not broadcast to a larger public, there is no nexus with the end of employment, and the employee did not request one.
http://media.ca1.uscourts.gov/pdf.opinions/15-1667P-01A.pdf
There is no administrative exhaustion requirement for S1981 actions.
The statute of limitations began to run with the adverse personell actions, not the written warning, as the adverse etiology had yet to crystallize.
A name-clearing hearing is not constitutionally required where the speech is not broadcast to a larger public, there is no nexus with the end of employment, and the employee did not request one.
http://media.ca1.uscourts.gov/pdf.opinions/15-1667P-01A.pdf
First Circuit: Thompson v. Lynch
Immigration
A former common-law marriage does not establish a basis for naturalization, as the law requires custody at the time of legal separation, and the end of the marriage was not legally recognized.
http://media.ca1.uscourts.gov/pdf.opinions/14-1858P-01A.pdf
A former common-law marriage does not establish a basis for naturalization, as the law requires custody at the time of legal separation, and the end of the marriage was not legally recognized.
http://media.ca1.uscourts.gov/pdf.opinions/14-1858P-01A.pdf
Federal Circuit: Rogers v. US
Takings, Property conveyance
Where the language of the deed is clear, under Florida law, no statute, policy, or fact can operate to convert an interest in fee simple for the purpose of running a railway to an easement.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-5098.Opinion.12-22-2015.1.PDF
Where the language of the deed is clear, under Florida law, no statute, policy, or fact can operate to convert an interest in fee simple for the purpose of running a railway to an easement.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-5098.Opinion.12-22-2015.1.PDF
Federal Circuit: Commil USA, LLC v. Cisco Systems, Inc.
Patent, Appellate Procedure
Retained on remand after Supreme Court review of the question whether belief of non-infringement operates as a bar to inducement liability, the Court finds no infringement - either direct or inducement - as the processes are not identical.
[Standard patent caveat: None of this is legal advice, but Patent is one of the areas in which it's not merely likely that we're wrong about this stuff, but it's almost certain that we're ludicrously off-base. -CB]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/12-1042.Opinion.12-22-2015.1.PDF
Retained on remand after Supreme Court review of the question whether belief of non-infringement operates as a bar to inducement liability, the Court finds no infringement - either direct or inducement - as the processes are not identical.
[Standard patent caveat: None of this is legal advice, but Patent is one of the areas in which it's not merely likely that we're wrong about this stuff, but it's almost certain that we're ludicrously off-base. -CB]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/12-1042.Opinion.12-22-2015.1.PDF
DC Circuit: Ayanna Blue v. District of Columbia
S1983, Title IX
A municipality's retention of an employee after an offense does not establish that the municipality is liable under S1983 for similar offenses.
Allegation of insufficient screening is not enough to state a claim for S1983.
As there was no actual notice of improper relationship during the pendency of the relationship, no Title IX violation.
School investigation is not an adequate substitute for notice of claim requirement that requires, at minimum, a written police report.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A69B5A2CB744D2E485257F2A005480B2/$file/14-7189-1590902.pdf
A municipality's retention of an employee after an offense does not establish that the municipality is liable under S1983 for similar offenses.
Allegation of insufficient screening is not enough to state a claim for S1983.
As there was no actual notice of improper relationship during the pendency of the relationship, no Title IX violation.
School investigation is not an adequate substitute for notice of claim requirement that requires, at minimum, a written police report.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A69B5A2CB744D2E485257F2A005480B2/$file/14-7189-1590902.pdf
DC Circuit: Penelope Minter v. DC
ADA
No merit to claim based on denial of accommodation, as the agency initially engaged in an interactive process and the bona fides of the claim weren't established at the time of eventual denial.
Ending of employment not a valid basis for claim of retaliation, as plaintiff has burden to prove actual connection, and not just temporal proximity.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A307330F9F02514885257F2A0054809C/$file/14-7118-1590897.pdf
No merit to claim based on denial of accommodation, as the agency initially engaged in an interactive process and the bona fides of the claim weren't established at the time of eventual denial.
Ending of employment not a valid basis for claim of retaliation, as plaintiff has burden to prove actual connection, and not just temporal proximity.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A307330F9F02514885257F2A0054809C/$file/14-7118-1590897.pdf
DC Circuit: Washington Regional Medicorp v. Sylvia Burwell
Chevron, Auer deference, rulemaking.
Where the stated intent of Congress is to implement a change, an inability to transition certain elements within the desired timeframe permits agencies to devise rules for the intersticial elements; these rules are not per se impermissible because they incorporate lapsed statutory elements of past systems.
Rules that derive from the previous statutory mandate, however, may be modified at the discretion of the agency.
A rule establishing that a value be derived from a certain other value does not require the two to be equal (or vary equally).
A rulemaking is sometimes not retroactive when the organic statute of the superseded rule has lapsed.
https://www.cadc.uscourts.gov/internet/opinions.nsf/28EC0B9175C966AF85257F2A00548088/$file/14-5330-1590892.pdf
Where the stated intent of Congress is to implement a change, an inability to transition certain elements within the desired timeframe permits agencies to devise rules for the intersticial elements; these rules are not per se impermissible because they incorporate lapsed statutory elements of past systems.
Rules that derive from the previous statutory mandate, however, may be modified at the discretion of the agency.
A rule establishing that a value be derived from a certain other value does not require the two to be equal (or vary equally).
A rulemaking is sometimes not retroactive when the organic statute of the superseded rule has lapsed.
https://www.cadc.uscourts.gov/internet/opinions.nsf/28EC0B9175C966AF85257F2A00548088/$file/14-5330-1590892.pdf
DC Circuit: Walter Jackson, Jr. v. Raymond Mabus, Jr.
Denial of amendment to military record was not arbitrary & capricious; although the written decision was perfunctory, there was sufficient basis in the record for the decision.
Denial of reconsideration reasonable.
No Due Process violation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/EBB3DC0B4C7630ED85257F2A00548069/$file/14-5224-1590906.pdf
Denial of reconsideration reasonable.
No Due Process violation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/EBB3DC0B4C7630ED85257F2A00548069/$file/14-5224-1590906.pdf
Tenth Circuit: Henderson v. Glanz
S1983 - prisons.
Appellate court cannot re-evaluate sufficiency of evidence on interlocutory appeal of denial of qualified immunity - where the court's finding is not contradicted in the record, it is presumed to be adequate.
Undisputed facts in the record that blatantly contradict the factual findings of the court on qualified immunity can be reviewed on interlocutory appeal.
As prison employee had no knowledge of the unlocked door before leaving to attend to another emergency, no denial of clearly established right.
https://www.ca10.uscourts.gov/opinions/14/14-5077.pdf
Appellate court cannot re-evaluate sufficiency of evidence on interlocutory appeal of denial of qualified immunity - where the court's finding is not contradicted in the record, it is presumed to be adequate.
Undisputed facts in the record that blatantly contradict the factual findings of the court on qualified immunity can be reviewed on interlocutory appeal.
As prison employee had no knowledge of the unlocked door before leaving to attend to another emergency, no denial of clearly established right.
https://www.ca10.uscourts.gov/opinions/14/14-5077.pdf
Eighth Circuit: United States v. Levon Dean, Jr.
Hobbs Act robbery.
Where a statute has an express nexus to interstate commerce, the actual connection can be small; in this case, it suffices that the robbery affected the victim's ability to participate in interstate drug purchases.
Sufficient connection between the crimes for a common conspiracy, but harmless error, as participants were principals in both actions.
Because victim was hit rather hard on the head, there was sufficient bodily injury for the carjacking statute - injury need not be in or near the car.
As codeft had a distinctive walk while carrying a gun, sufficient evidence for knowledge of the gun.
Intent to affect interstate drug commerce not a necessary jury instruction for conspiracy count.
Constructive possession / vehicle instruction upheld.
Hearsay evidence properly considered in sentencing.
Sentencing court's denial of de minimis sentence for counts not subject to mandatory minimums was proper, despite the fact that the court stated that it did not have the power to impose a de minimis sentence.
http://media.ca8.uscourts.gov/opndir/15/12/151263P.pdf
Where a statute has an express nexus to interstate commerce, the actual connection can be small; in this case, it suffices that the robbery affected the victim's ability to participate in interstate drug purchases.
Sufficient connection between the crimes for a common conspiracy, but harmless error, as participants were principals in both actions.
Because victim was hit rather hard on the head, there was sufficient bodily injury for the carjacking statute - injury need not be in or near the car.
As codeft had a distinctive walk while carrying a gun, sufficient evidence for knowledge of the gun.
Intent to affect interstate drug commerce not a necessary jury instruction for conspiracy count.
Constructive possession / vehicle instruction upheld.
Hearsay evidence properly considered in sentencing.
Sentencing court's denial of de minimis sentence for counts not subject to mandatory minimums was proper, despite the fact that the court stated that it did not have the power to impose a de minimis sentence.
http://media.ca8.uscourts.gov/opndir/15/12/151263P.pdf
Eighth Circuit: Bonnie Hasenwinkel v. Mosaic
FMLA.
Claim for denial of leave properly dismissed, as the maximum period of leave under the statute had already been exhausted.
As employee was incapable of returning to work, no basis for challenging ending of employment.
Although a suspension with later backpay can be the basis for an FMLA claim, plaintiff did not allege any monetary harm from the act, and it was therefore properly dismissed as a matter of law.
No material adverse action in workplace generally.
A federal statute with an express right of action cannot serve as the "public policy" basis for a state tort claim of wrongful discharge.
http://media.ca8.uscourts.gov/opndir/15/12/143786P.pdf
Claim for denial of leave properly dismissed, as the maximum period of leave under the statute had already been exhausted.
As employee was incapable of returning to work, no basis for challenging ending of employment.
Although a suspension with later backpay can be the basis for an FMLA claim, plaintiff did not allege any monetary harm from the act, and it was therefore properly dismissed as a matter of law.
No material adverse action in workplace generally.
A federal statute with an express right of action cannot serve as the "public policy" basis for a state tort claim of wrongful discharge.
http://media.ca8.uscourts.gov/opndir/15/12/143786P.pdf
Seventh Circuit: John Tate v. SCR Medical Transportation Inc
Pleading.
Court erred in dismissing a pro se complaint alleging discrimination because of gender and disability (that did not specify the disability in question) within the period of time in which a plaintiff can unilaterally amend the claim.
Court should have instructed plaintiff to amend claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-28/C:15-1447:J:Posner:aut:T:fnOp:N:1677902:S:0
Court erred in dismissing a pro se complaint alleging discrimination because of gender and disability (that did not specify the disability in question) within the period of time in which a plaintiff can unilaterally amend the claim.
Court should have instructed plaintiff to amend claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-28/C:15-1447:J:Posner:aut:T:fnOp:N:1677902:S:0
Seventh Circuit: Joshua Howard v. William Pollard
Prison overcrowding - class certification.
Denial of class certification and appointment of counsel upheld. Although presence of counsel would make the class representative a more adequate plaintiff, denial of counsel does not prejudice the consideration of class certification, as counsel is provided to prosecute the claim, not ensure the adequacy of the representative.
Per curiam.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-29/C:15-8025:J:PerCuriam:aut:T:fnOp:N:1678422:S:0
Denial of class certification and appointment of counsel upheld. Although presence of counsel would make the class representative a more adequate plaintiff, denial of counsel does not prejudice the consideration of class certification, as counsel is provided to prosecute the claim, not ensure the adequacy of the representative.
Per curiam.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-29/C:15-8025:J:PerCuriam:aut:T:fnOp:N:1678422:S:0
Fifth Circuit: Machete Productions, L.L.C. v. Heather Page, et al
S1983 - State film incentives program / First Amendment
Although removal from state to federal forum operated as a voluntary waiver of sovereign immunity, monetary damages against a state don't lie under S1983, and as the film franchise has no plans for another project, there is no basis for injunctive relief.
Qualified immunity - by requiring films to depict the state in a positive manner in order to qualify for funding, the state violated no clearly established constitutional law.
No due process violation, as the filmmaker did not have a right to the discretionary grants.
No prior restraint of speech under the Texas Constitution.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50120-CV0.pdf
Although removal from state to federal forum operated as a voluntary waiver of sovereign immunity, monetary damages against a state don't lie under S1983, and as the film franchise has no plans for another project, there is no basis for injunctive relief.
Qualified immunity - by requiring films to depict the state in a positive manner in order to qualify for funding, the state violated no clearly established constitutional law.
No due process violation, as the filmmaker did not have a right to the discretionary grants.
No prior restraint of speech under the Texas Constitution.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50120-CV0.pdf
Second Circuit: In Re: Coudert Bros. LLP
Appellate procedure, choice of law.
Where a court of appeals instructs that a lower court should apply a specific law on remand and does not mention alternative bases for judgment, the lower court is necessarily foreclosed from deciding the case on an alternative basis that makes the choice of law not dispositive.
http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/doc/14-3688_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/hilite/
Where a court of appeals instructs that a lower court should apply a specific law on remand and does not mention alternative bases for judgment, the lower court is necessarily foreclosed from deciding the case on an alternative basis that makes the choice of law not dispositive.
http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/doc/14-3688_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/hilite/
Eleventh Circuit: Miccosukee Tribe of Indians of Florida v. Billy Cypress, et al.
Tribe law - RICO, embezzlement.
No genuine issue of nonjusticibility, as the actions specified in the indictment appear to be outside of tribal law.
Itemization of fraudulent contacts is insufficient for 9(b) pleading specificity -- a theory of the specific fraud must also be outlined.
http://media.ca11.uscourts.gov/opinions/pub/files/201412115.pdf
No genuine issue of nonjusticibility, as the actions specified in the indictment appear to be outside of tribal law.
Itemization of fraudulent contacts is insufficient for 9(b) pleading specificity -- a theory of the specific fraud must also be outlined.
http://media.ca11.uscourts.gov/opinions/pub/files/201412115.pdf
Ninth Circuit: Gabriel Almanza-Arenas v. Loretta E. Lynch
Immigration - predicates. En banc.
A California vehicle theft statute describes an offense that may be committed with the specific intent to borrow the car or take the car permanently, not two offenses with distinct elements. It is therefore not categorically a crime of moral turpitude for the purposes of immigration enforcement.
Concurrence (4) - Correct according to the law, but the constant categorical/modified categorical rebalancing isn't intrinsically just.
Concurrence in J: The statute is divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/09-71415.pdf
A California vehicle theft statute describes an offense that may be committed with the specific intent to borrow the car or take the car permanently, not two offenses with distinct elements. It is therefore not categorically a crime of moral turpitude for the purposes of immigration enforcement.
Concurrence (4) - Correct according to the law, but the constant categorical/modified categorical rebalancing isn't intrinsically just.
Concurrence in J: The statute is divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/09-71415.pdf
Ninth Circuit: USA v. Samuel Navarette-Aguilar
Drugs - Sentencing, Conspiracy.
A jury cannot speculate that events outside scope of proof would have allowed the total amount of drugs to rise to the level contemplated by the statute.
Deft's witness opened the door for prior bad acts.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/14-30056.pdf
A jury cannot speculate that events outside scope of proof would have allowed the total amount of drugs to rise to the level contemplated by the statute.
Deft's witness opened the door for prior bad acts.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/14-30056.pdf
Ninth Circuit: Robert McDaniels v. Richard Kirkland
En Banc -- Habeas, Batson, scope of review
Clearly established constitutional law did not require an appeals court evaluating a collateral Batson challenge to engage in comparative juror analysis.
Court did not conflate the analysis of the prosecutors' justifications with the analysis of the trial court's acceptance of the justifications.
While the court evaluating the state writ was not compelled to engage in comparative juror analysis, comparative juror analysis in the Federal collateral challenge can reveal an unreasonable application of facts in the state proceeding.
Evidence before a state trial court not introduced at state collateral proceedings doesn't implicate Pinholster.
Remanded to panel to determine if unreasonable application of facts.
Concur (3):
No substantive change in the law in the interval requiring comparative juror analysis in state Habeas.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/24/09-17339.pdf
Clearly established constitutional law did not require an appeals court evaluating a collateral Batson challenge to engage in comparative juror analysis.
Court did not conflate the analysis of the prosecutors' justifications with the analysis of the trial court's acceptance of the justifications.
While the court evaluating the state writ was not compelled to engage in comparative juror analysis, comparative juror analysis in the Federal collateral challenge can reveal an unreasonable application of facts in the state proceeding.
Evidence before a state trial court not introduced at state collateral proceedings doesn't implicate Pinholster.
Remanded to panel to determine if unreasonable application of facts.
Concur (3):
No substantive change in the law in the interval requiring comparative juror analysis in state Habeas.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/24/09-17339.pdf
Ninth Circuit: USA v. Xochitl Cisneros-Rodriguez
Immigration, due process.
As an administrative officer can terminate an administrative proceeding in favor of a judicial proceeding, a waiver of legal representation to pursue a plausible claim of relief is invalidated by an affirmative misrepresentation by the administrative officer.
Dissent: District court made adverse credibility finding against the claim of misrepresentation. Petitioner might have otherwise obtained relief in interval.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/23/13-10645.pdf
As an administrative officer can terminate an administrative proceeding in favor of a judicial proceeding, a waiver of legal representation to pursue a plausible claim of relief is invalidated by an affirmative misrepresentation by the administrative officer.
Dissent: District court made adverse credibility finding against the claim of misrepresentation. Petitioner might have otherwise obtained relief in interval.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/23/13-10645.pdf
Sixth Circuit: In re: Windy Watkins
Sentencing -- Johnson's retroactivity on collateral review.
Second/successive Habeas petition challenging sentence imposed under ACCA residual clause permitted, as Supreme Court ruling holding the clause unconstitutionally vague was explicitly made retroactive for cases on collateral review.
http://www.ca6.uscourts.gov/opinions.pdf/15a0295p-06.pdf
Second/successive Habeas petition challenging sentence imposed under ACCA residual clause permitted, as Supreme Court ruling holding the clause unconstitutionally vague was explicitly made retroactive for cases on collateral review.
http://www.ca6.uscourts.gov/opinions.pdf/15a0295p-06.pdf
Fifth Circuit: Helen Allen, et al v. C & H Distributors, L.L.C.,
Judicial estoppel & tort.
A party is judicially estopped from bringing a post-petition injury claim if they do not notify the Trustee of the claim.
A subsequent filing of the suit by a Trustee is not governed by the statute of limitations.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30330-CV0.pdf
A party is judicially estopped from bringing a post-petition injury claim if they do not notify the Trustee of the claim.
A subsequent filing of the suit by a Trustee is not governed by the statute of limitations.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30330-CV0.pdf
Fifth Circuit: USA v. Mark Hebert
Sentencing, 5A, 6A, 8A.
92 year sentence for Bank Fraud under 70K upheld, due to murder established by preponderance in sentencing.
No clear error in the finding.
After plea deal, gov't filed second PSR, cross-referencing the murder.
Cross-reference to state law murder not substantively unreasonable, as the sentence could have been an independent upward variance in the primary offense.
No Fifth Amendment Due Process, Eighth Amendment, or Sixth Amendment violation, as sentence was within statutory limits of the primary offense.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31405-CR0.pdf
92 year sentence for Bank Fraud under 70K upheld, due to murder established by preponderance in sentencing.
No clear error in the finding.
After plea deal, gov't filed second PSR, cross-referencing the murder.
Cross-reference to state law murder not substantively unreasonable, as the sentence could have been an independent upward variance in the primary offense.
No Fifth Amendment Due Process, Eighth Amendment, or Sixth Amendment violation, as sentence was within statutory limits of the primary offense.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31405-CR0.pdf
Fourth Circuit: Samuel Calderon v. GEICO General Insurance Company
FLSA for insurance investigators.
An employee who provides investigative services for a class of employees who are considered exempt on a case by case basis is not him or herself necessarily exempt. Relevant precedent in the public sector applies to the private sector as well.
Executives decision to the contrary was not willful and reckless, as they acted in opposition to legal precedent that was, according to their predictions, subsequently reversed.
Court correctly construed the contract as straight-time for hours worked.
Error under statute not to award prejudgment interest.
http://www.ca4.uscourts.gov/Opinions/Published/142111.P.pdf
An employee who provides investigative services for a class of employees who are considered exempt on a case by case basis is not him or herself necessarily exempt. Relevant precedent in the public sector applies to the private sector as well.
Executives decision to the contrary was not willful and reckless, as they acted in opposition to legal precedent that was, according to their predictions, subsequently reversed.
Court correctly construed the contract as straight-time for hours worked.
Error under statute not to award prejudgment interest.
http://www.ca4.uscourts.gov/Opinions/Published/142111.P.pdf
First Circuit: Limoliner, Inc. v. Dattco, Inc.
Contract interpretation, consumer protection - bus repairs.
Give that the analogous regulation relied upon is in the consumer protection portion of the code and the law in question is in the motor vehicle portion of the code, question on applicability of the law to businesses to business transactions certified to Massachusetts SJC.
Party's spoken stipulation that the work should be done "as soon as possible" is not a binding contractual term of performance.
No clear error in magistrate's holding that that work was timely performed.
Damages affirmed.
http://media.ca1.uscourts.gov/pdf.opinions/14-2188P-01A.pdf
Give that the analogous regulation relied upon is in the consumer protection portion of the code and the law in question is in the motor vehicle portion of the code, question on applicability of the law to businesses to business transactions certified to Massachusetts SJC.
Party's spoken stipulation that the work should be done "as soon as possible" is not a binding contractual term of performance.
No clear error in magistrate's holding that that work was timely performed.
Damages affirmed.
http://media.ca1.uscourts.gov/pdf.opinions/14-2188P-01A.pdf
First Circuit: Castaneda v. Souza
Immigration - AG's detention mandate. Statutory interpretation, En banc, 107 pp.
3-1-3 split. District courts decision requiring bond hearings for aliens affirmed, in line with the first opinion, viz:
(3)
When an antecedent portion of a statute refers to an entity later described in the statute, it is assumed that the full modifier is incorporated in the later reference, i.e., a statute referring to an alien as described above refers to the type of alien described above, and not aliens generally, some of whom fall into the category described above, and some of whom don't.
Chevron analysis, TKO'd on step one - agency adjudication deserves no deference, as the statute isn't ambiguous.
Additionally, as agency only decided whether statute's requirements attach on release or after release, there is no agency guidance on relative duration of release.
Loss-of-authority canon.
(1)
Concurrence in J.
14A bars indefinite detention without access to bail or bond of anybody in the US. Yick Wo.
(3)
Dissent
Statutory interpretation - the adverbial modifier in the previous clause shouldn't attach to the second clause.
Circuit split flagged.
Legislative intent, surplussage.
Where a statutory mandate is not implemented, a second clause referring to the entities in the mandate continues to describe them as as an independent referent, though not acted upon by the terms of the previous mandate.
Constitutional avoidance.
http://media.ca1.uscourts.gov/pdf.opinions/13-1994P2-01A.pdf
Federal Circuit: Personalized Media v. Rovi Guides
Trademarks - Must Read.
En Banc.
Lanham Act provision barring registration of disparaging marks TKO'd by First Amendment under both strict and intermediate scrutiny.
Concurrence: Also void for vagueness.
C/D: Constitutional as to commercial speech, unconstitutional as to political speech. [NB case at bar is an Asian-American band wanting to trademark the name "The Slants".]
Dissent: Nope
Other Dissent: Nope.
110 Pages.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1203.Opinion.12-18-2015.1.PDF
En Banc.
Lanham Act provision barring registration of disparaging marks TKO'd by First Amendment under both strict and intermediate scrutiny.
Concurrence: Also void for vagueness.
C/D: Constitutional as to commercial speech, unconstitutional as to political speech. [NB case at bar is an Asian-American band wanting to trademark the name "The Slants".]
Dissent: Nope
Other Dissent: Nope.
110 Pages.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1203.Opinion.12-18-2015.1.PDF
Eleventh Circuit: USA v. Edgar Alexander Pirela Pirela
Immigration, Statutory construction
A material misstatement of fact in an application for a non-immigrant visa constitutes an unlawful procurement of that visa, regardless of whether the fact constituted a statutory bar to the granting of the visa.
http://media.ca11.uscourts.gov/opinions/pub/files/201413767.pdf
A material misstatement of fact in an application for a non-immigrant visa constitutes an unlawful procurement of that visa, regardless of whether the fact constituted a statutory bar to the granting of the visa.
http://media.ca11.uscourts.gov/opinions/pub/files/201413767.pdf
Tenth Circuit: Birch v. Polaris Industries
Torts. standards of appellate review.
Appellant waived challenge to clear error review of magistrate's holdings on matters not explicitly dispositive when counsel explicitly accepted the standard of review in the District Court.
No abuse of discretion in denial of motion to amend the claim when nine months lapse after first notice and four months lapse after confirming evidence.
No abuse of discretion in denial of motion for discovery where the discovery factors are not clearly set for th in the affidavit.
No abuse of discretion in summary judgment where the unamended complaint doesn't state a claim.
https://www.ca10.uscourts.gov/opinions/15/15-4066.pdf
Appellant waived challenge to clear error review of magistrate's holdings on matters not explicitly dispositive when counsel explicitly accepted the standard of review in the District Court.
No abuse of discretion in denial of motion to amend the claim when nine months lapse after first notice and four months lapse after confirming evidence.
No abuse of discretion in denial of motion for discovery where the discovery factors are not clearly set for th in the affidavit.
No abuse of discretion in summary judgment where the unamended complaint doesn't state a claim.
https://www.ca10.uscourts.gov/opinions/15/15-4066.pdf
Ninth Circuit: USA v. Douglas Decinces
Immigration/Administrative
Cheveron deference to agency adjudication holding that a federal law deeming South Korean citizenship not a bar to refugee status does not preclude a finding that the petitioner resettled in South Korea.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/11-73587.pdf
Cheveron deference to agency adjudication holding that a federal law deeming South Korean citizenship not a bar to refugee status does not preclude a finding that the petitioner resettled in South Korea.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/11-73587.pdf
Ninth Circuit: Pacific Radiation Oncology v. The Queen's Medical Center
Injunctions - Important one.
There must be a nexus between the harm alleged in the application for injunction and the claims in the underlying action.
An injunction seeking to bar release of patient records based on federal statute and the state constitution cannot be considered in a fair trade practices case. It's a discovery matter.
"Pled" as past tense in the lede.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/14-17050.pdf
There must be a nexus between the harm alleged in the application for injunction and the claims in the underlying action.
An injunction seeking to bar release of patient records based on federal statute and the state constitution cannot be considered in a fair trade practices case. It's a discovery matter.
"Pled" as past tense in the lede.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/14-17050.pdf
Ninth Circuit: Sung Jang v. Loretta E. Lynch
Securities - Interlocutory appeals
Government can appeal interlocutory evidentiary rulings, however tentative.
Evidence of prior bad acts in for common scheme and lack of coincidence - also held on de novo review to be more probative than prejudicial.
Court does not have pendent jurisdiction over appeal of motion to dismiss when adjudicating an interlocutory evidentiary appeal.
Court does not have jurisdiction over double jeopardy claim based in multiplicious indictment by means of the collateral order doctrine, as the issue can be raised on appeal.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/15-50033.pdf
Government can appeal interlocutory evidentiary rulings, however tentative.
Evidence of prior bad acts in for common scheme and lack of coincidence - also held on de novo review to be more probative than prejudicial.
Court does not have pendent jurisdiction over appeal of motion to dismiss when adjudicating an interlocutory evidentiary appeal.
Court does not have jurisdiction over double jeopardy claim based in multiplicious indictment by means of the collateral order doctrine, as the issue can be raised on appeal.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/15-50033.pdf
Eighth Circuit: United States v. Stevenson Harrison
Hearsay in parole revocation hearing.
Where the District Court does not explicitly permit hearsay evidence at a parole revocation hearing, the appellate court can conduct a de novo review on the question if the factual record is sufficiently developed.
Where the costs of producing evidence at a parole revocation hearing are unduly burdensome and impractical, no abuse of discretion in admitting parole officer testimony and police reports.
Virginia statute of Malicious Bodily Injury to Law Enforcement Officer is categorically a Grade A/ violent offense.
Dissent - FRCrimP requires specific admission of hearsay as hearsay. Parole officer testimony derived from reading the police reports. Deft's corroborating statements limited to attempting to run away, and being grabbed by police officers, who subsequently ripped his shirt and fell down a flight of stairs. Subsequent alleged fracas unconfirmed.
http://media.ca8.uscourts.gov/opndir/15/12/151246P.pdf
Where the District Court does not explicitly permit hearsay evidence at a parole revocation hearing, the appellate court can conduct a de novo review on the question if the factual record is sufficiently developed.
Where the costs of producing evidence at a parole revocation hearing are unduly burdensome and impractical, no abuse of discretion in admitting parole officer testimony and police reports.
Virginia statute of Malicious Bodily Injury to Law Enforcement Officer is categorically a Grade A/ violent offense.
Dissent - FRCrimP requires specific admission of hearsay as hearsay. Parole officer testimony derived from reading the police reports. Deft's corroborating statements limited to attempting to run away, and being grabbed by police officers, who subsequently ripped his shirt and fell down a flight of stairs. Subsequent alleged fracas unconfirmed.
http://media.ca8.uscourts.gov/opndir/15/12/151246P.pdf
Eighth Circuit: Stuart Wright v. Sean Franklin
Bivvens - Taser-aided arrest of the wrong guy during a league basketball game.
Footnote in motion saying that an argument isn't made doesn't operate as waiver - de novo review on the question of whether there was a clearly-established right.
Qualified immunity on the taser shock, as it was not yet clearly established in the Circuit that a person thought to be possibly armed and dangerous should not be tasered if they were nonviolent and not attempting to flee.
Basis for the detention subsequently raised need not have been thought about at the time - objective reasonableness controls.
20 minute detention of wrong person after having determined them to be the wrong person is a minimal intrusion on the liberty interest, and does not justify a Bivvens claim.
http://media.ca8.uscourts.gov/opndir/15/12/143606P.pdf
Footnote in motion saying that an argument isn't made doesn't operate as waiver - de novo review on the question of whether there was a clearly-established right.
Qualified immunity on the taser shock, as it was not yet clearly established in the Circuit that a person thought to be possibly armed and dangerous should not be tasered if they were nonviolent and not attempting to flee.
Basis for the detention subsequently raised need not have been thought about at the time - objective reasonableness controls.
20 minute detention of wrong person after having determined them to be the wrong person is a minimal intrusion on the liberty interest, and does not justify a Bivvens claim.
http://media.ca8.uscourts.gov/opndir/15/12/143606P.pdf
Eighth Circuit: Sintia Rodriguez-Mercado v. Loretta E. Lynch
Immigration.
Adverse findings of credibility as to specific events not overwhelmed by establishment of general situation of country of origin.
Voluntary departure not preserved on appeal. Agency could still do it, though.
http://media.ca8.uscourts.gov/opndir/15/12/143559P.pdf
Adverse findings of credibility as to specific events not overwhelmed by establishment of general situation of country of origin.
Voluntary departure not preserved on appeal. Agency could still do it, though.
http://media.ca8.uscourts.gov/opndir/15/12/143559P.pdf
Seventh Circuit: Julia Egan v. David Pineda
Posner - Civil Practice / Ethics
Six month delay in withdrawing an element of a complaint repudiated by plaintiff in deposition justified 5K sanction to counsel.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-2011:J:Posner:aut:T:fnOp:N:1676944:S:0
Six month delay in withdrawing an element of a complaint repudiated by plaintiff in deposition justified 5K sanction to counsel.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-2011:J:Posner:aut:T:fnOp:N:1676944:S:0
Seventh Circuit: Roy Mitchell v. Edward Wall
Posner - Mootness & Vacatur.
A party waives the right to vacatur of a lower court's denial of a preliminary injunction by not requesting it upon appeal in a case that has become moot. Circuit practice is not to typically vacate lower court holding in this situation. Although the decision below was adverse to petitioner, it was not preclusive as to the issuance of a permanent injunction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1881:J:Posner:aut:T:fnOp:N:1676912:S:0
A party waives the right to vacatur of a lower court's denial of a preliminary injunction by not requesting it upon appeal in a case that has become moot. Circuit practice is not to typically vacate lower court holding in this situation. Although the decision below was adverse to petitioner, it was not preclusive as to the issuance of a permanent injunction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1881:J:Posner:aut:T:fnOp:N:1676912:S:0
Seventh Circuit: USA v. Bryce Woods
Posner - Sentencing.
Mitigation claim that the deft had engaged in subsequent legitimate business consulting borders on the frivolous, and need not have been specifically addressed in sentencing findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1495:J:Posner:aut:T:fnOp:N:1676922:S:0
Mitigation claim that the deft had engaged in subsequent legitimate business consulting borders on the frivolous, and need not have been specifically addressed in sentencing findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1495:J:Posner:aut:T:fnOp:N:1676922:S:0
Seventh Circuit: Dianne Khan v. USA
Posner - FTCA SOL.
A letter to a federal agency complaining about an action of the agency is not sufficient notice of claim under FTCA if there is no demand for compensation.
In assessing the window of opportunity for filing a tort claim against the federal government, the tort-specific limitations displace the general civil suit limitations.
Bivvens time-barred under incorporated state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:14-3292:J:Posner:aut:T:fnOp:N:1676899:S:0
A letter to a federal agency complaining about an action of the agency is not sufficient notice of claim under FTCA if there is no demand for compensation.
In assessing the window of opportunity for filing a tort claim against the federal government, the tort-specific limitations displace the general civil suit limitations.
Bivvens time-barred under incorporated state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:14-3292:J:Posner:aut:T:fnOp:N:1676899:S:0
Sixth Circuit: Samantha Bachynski v. Anthony Stewart
Habeas - Miranda.
After post-Miranda invocation of right to counsel, neither the return of detectives to the cell with a phone book and a cell phone nor subsequent re-Mirandizing constitutes interrogation or badgering.
A lower court's citation of a case that rebuts a deft's claim of law based on an asserted factual circumstance does not operate as a finding of that factual circumstance.
Deft's allegations of minatory statements made by the detectives on their return insufficient to violate clearly established constitutional law on Miranda warnings.
Also harmless error, given the other evidence.
http://www.ca6.uscourts.gov/opinions.pdf/15a0300p-06.pdf
After post-Miranda invocation of right to counsel, neither the return of detectives to the cell with a phone book and a cell phone nor subsequent re-Mirandizing constitutes interrogation or badgering.
A lower court's citation of a case that rebuts a deft's claim of law based on an asserted factual circumstance does not operate as a finding of that factual circumstance.
Deft's allegations of minatory statements made by the detectives on their return insufficient to violate clearly established constitutional law on Miranda warnings.
Also harmless error, given the other evidence.
http://www.ca6.uscourts.gov/opinions.pdf/15a0300p-06.pdf
Sixth Circuit: Brian Bauman v. Bank of America
FDCPA.
A counterclaim for the debt is not a compulsory counterclaim in a FDCPA action based on a lender's previous illegal conduct in foreclosure actions.
http://www.ca6.uscourts.gov/opinions.pdf/15a0299p-06.pdf
A counterclaim for the debt is not a compulsory counterclaim in a FDCPA action based on a lender's previous illegal conduct in foreclosure actions.
http://www.ca6.uscourts.gov/opinions.pdf/15a0299p-06.pdf
Sixth Circuit: USA v. Vishnu Meda
Hearsay, Conspiracy, Sentencing.
No Double Jeopardy, as although the offenses were of the same nature and occurred at the same place, the players and the overt acts differed.
No prosecutorial vindictiveness, as there was no evidence in the record of malice, and the indictment was returned.
Although trial court did not explicitly find the person in question to be a co-conspirator, a preponderance of evidence to that effect allows the testimony to survive plain error review under the co-conspirator exception to the hearsay rule.
Testimony by deft's husband offered to prove state of mind of deft during a business meeting properly excluded under hearsay, as it worked to impeach earlier testimony as to the content of the meeting.
Prosecutors' sidebar followed by court's in camera hearing and warning to witness on self-incrimination was not witness intimidation by prosc.
No error in denial of grant of immunity to defense witness, as there was no showing as to likely effect on the case.
No error in court's refusal to order the witness to invoke 5A on stand, or bar prosecution cross.
Sentencing - once a factor is proven at trial, burden shifts to deft to specifically rebut - a general indictment of the testimony doesn't suffice.
No error in sentencing bump for leadership, as deft was part owner and sole signatory of fraudulent organization.
http://www.ca6.uscourts.gov/opinions.pdf/15a0298p-06.pdf
No Double Jeopardy, as although the offenses were of the same nature and occurred at the same place, the players and the overt acts differed.
No prosecutorial vindictiveness, as there was no evidence in the record of malice, and the indictment was returned.
Although trial court did not explicitly find the person in question to be a co-conspirator, a preponderance of evidence to that effect allows the testimony to survive plain error review under the co-conspirator exception to the hearsay rule.
Testimony by deft's husband offered to prove state of mind of deft during a business meeting properly excluded under hearsay, as it worked to impeach earlier testimony as to the content of the meeting.
Prosecutors' sidebar followed by court's in camera hearing and warning to witness on self-incrimination was not witness intimidation by prosc.
No error in denial of grant of immunity to defense witness, as there was no showing as to likely effect on the case.
No error in court's refusal to order the witness to invoke 5A on stand, or bar prosecution cross.
Sentencing - once a factor is proven at trial, burden shifts to deft to specifically rebut - a general indictment of the testimony doesn't suffice.
No error in sentencing bump for leadership, as deft was part owner and sole signatory of fraudulent organization.
http://www.ca6.uscourts.gov/opinions.pdf/15a0298p-06.pdf
DC Circuit: Food & Water Watch, Inc. v. Thomas Vilsack
Food safety. Article III Standing generally, and for the purposes of an injunction.
Lower court held that there wasn't substantial likelihood of standing for purposes of the injunction, but dismissed the case, so the general threshold of Article III standing governs the appeal. [Apparently, this is a lower threshold.]
Individuals and individual members of associations don't have a concrete and particularized injury, because an increased likelihood of unwholesome poultry carcasses in general has not been established.
The fact that the food safety advocacy would have to step up its advocacy is not an injury in fact for the purposes of organizational standing.
Omission of procedural right insufficient injury.
Concurrence in J - Individuals could simply avoid chickens from the plants in question; organizational injury limited to issue advocacy costs.
Concurrence - Organizational standing and individual standing have grown too disparate.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0F9AADF33503A72F85257F230057317B/$file/15-5037-1589972.pdf
Lower court held that there wasn't substantial likelihood of standing for purposes of the injunction, but dismissed the case, so the general threshold of Article III standing governs the appeal. [Apparently, this is a lower threshold.]
Individuals and individual members of associations don't have a concrete and particularized injury, because an increased likelihood of unwholesome poultry carcasses in general has not been established.
The fact that the food safety advocacy would have to step up its advocacy is not an injury in fact for the purposes of organizational standing.
Omission of procedural right insufficient injury.
Concurrence in J - Individuals could simply avoid chickens from the plants in question; organizational injury limited to issue advocacy costs.
Concurrence - Organizational standing and individual standing have grown too disparate.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0F9AADF33503A72F85257F230057317B/$file/15-5037-1589972.pdf
DC Circuit: Friends of Animals v. Dan Ashe
Endangered Species - Administrative Law
Not only was suit requiring final action on a species untimely because it was filed more than 60 days after the notice of claim, but there was no basis for a final determination suit, as only an initial determination can trigger the need for a final determination, and that's another lawsuit entirely.
https://www.cadc.uscourts.gov/internet/opinions.nsf/18ECBD126C42112385257F230057312D/$file/14-5172-1589984.pdf
Not only was suit requiring final action on a species untimely because it was filed more than 60 days after the notice of claim, but there was no basis for a final determination suit, as only an initial determination can trigger the need for a final determination, and that's another lawsuit entirely.
https://www.cadc.uscourts.gov/internet/opinions.nsf/18ECBD126C42112385257F230057312D/$file/14-5172-1589984.pdf
DC Circuit: Anteneh Abtew v. DHS
Immigration/ FOIA
Asylum petitioner's FOIA request for agency's internal report of merits of claim properly upheld under deliberative process exception.
Agency not estopped from denying claim by providing data in other similar situations.
Judicial processes exist that would allow petitioner to access the documents.
https://www.cadc.uscourts.gov/internet/opinions.nsf/400CFDA022B7BEE985257F2300573100/$file/14-5169-1589960.pdf
Asylum petitioner's FOIA request for agency's internal report of merits of claim properly upheld under deliberative process exception.
Agency not estopped from denying claim by providing data in other similar situations.
Judicial processes exist that would allow petitioner to access the documents.
https://www.cadc.uscourts.gov/internet/opinions.nsf/400CFDA022B7BEE985257F2300573100/$file/14-5169-1589960.pdf
DC Circuit: TransCanada Power Marketing v. FERC
Administrative Law - Utilities.
Utility challenge to tentative rulemaking on allocation of generation costs not arbitrary/capricious, as (1) tentative nature of rulemaking makes it not ripe for review, although jurisdictional statute does not require a final order and (2) although agency did not use the traditional language of "just and reasonable," the decision was in accord with precedent.
Commission adjudication allowing acceptance of bid without granular data of profit/markup was insufficiently reasoned, however -- remanded to commission.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0F9AADF33503A72F85257F230057317B/$file/15-5037-1589972.pdf
Utility challenge to tentative rulemaking on allocation of generation costs not arbitrary/capricious, as (1) tentative nature of rulemaking makes it not ripe for review, although jurisdictional statute does not require a final order and (2) although agency did not use the traditional language of "just and reasonable," the decision was in accord with precedent.
Commission adjudication allowing acceptance of bid without granular data of profit/markup was insufficiently reasoned, however -- remanded to commission.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0F9AADF33503A72F85257F230057317B/$file/15-5037-1589972.pdf
Ninth Circuit: Francisco Garcia v. David Long (12/21)
AEDPA - Interrogations/Miranda.
State court holding that deft's post-Miranda response "no" to question "do you want to talk to us" was equivocal because of context hits the AEDPA trifecta - contrary to, and an unreasonable application of Supreme Court precedent and an unreasonable determination of the facts.
Centrality of admissions at trial establish error as not harmless.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/21/13-57071.pdf
State court holding that deft's post-Miranda response "no" to question "do you want to talk to us" was equivocal because of context hits the AEDPA trifecta - contrary to, and an unreasonable application of Supreme Court precedent and an unreasonable determination of the facts.
Centrality of admissions at trial establish error as not harmless.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/21/13-57071.pdf
Ninth Circuit -- Sunny Viloria v. Loretta E. Lynch (12/21)
No general federal jurisdiction to review an immigration claim absent a final order of removal.
Vacating IJ's order barring removal does not give jurisdiction under the removal statute.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/21/11-73725.pdf
Vacating IJ's order barring removal does not give jurisdiction under the removal statute.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/21/11-73725.pdf
Eighth Circuit: Harris News Agency, Inc. v. William L. Bowers
Guns.
Error in denial of corporation's application for license to sell guns where the officers of the organization knew that a family member, convicted of a felony, was working as a gunsmith in a prior incarnation of the shop. Statute requires a willful violation.
http://media.ca8.uscourts.gov/opndir/15/12/151090P.pdf
Error in denial of corporation's application for license to sell guns where the officers of the organization knew that a family member, convicted of a felony, was working as a gunsmith in a prior incarnation of the shop. Statute requires a willful violation.
http://media.ca8.uscourts.gov/opndir/15/12/151090P.pdf
Seventh Circuit: Alliance for Water Efficiency v. James Fryer
Magistrate hearing original suit did not have federal jurisdiction, but parties consented to settlement. Magistrate's subsequent order enforcing settlement went beyond terms of the deal, and is vacated.
Red herrings: First Amendment, prior restraint, Contract law, copyright law, diversity jurisdiction, consent to suit, access to public records.
(Easterbrook)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-22/C:15-1206:J:Easterbrook:aut:T:fnOp:N:1676130:S:0
Red herrings: First Amendment, prior restraint, Contract law, copyright law, diversity jurisdiction, consent to suit, access to public records.
(Easterbrook)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-22/C:15-1206:J:Easterbrook:aut:T:fnOp:N:1676130:S:0
Sixth Circuit: Marlon Scarber v. Carmen Palmer
AEDPA tolling.
AEDPA clock tolled by postconviction motion to dismiss for lack of jurisdiction construed as postconviction application of r relief resumed upon entry of final judgment by state supreme court, as opposed to the end of the period for appealing that decision. Circuit split flagged.
http://www.ca6.uscourts.gov/opinions.pdf/15a0297p-06.pdf
AEDPA clock tolled by postconviction motion to dismiss for lack of jurisdiction construed as postconviction application of r relief resumed upon entry of final judgment by state supreme court, as opposed to the end of the period for appealing that decision. Circuit split flagged.
http://www.ca6.uscourts.gov/opinions.pdf/15a0297p-06.pdf
Fourth Circuit - US v. Camden Barlow (12/21)
ACCA predicates.
North Carolina "Speeding to Elude Arrest" formerly qualified for residual clause; post-Johnson, remanded for resentencing.
North Carolina supervised-release is considered part of the sentence, so the nine-month supervision period counts when calculating the one-year imprisonment threshold for predicates as felonies under the ACCA.
http://www.ca4.uscourts.gov/Opinions/Published/154114.P.pdf
North Carolina "Speeding to Elude Arrest" formerly qualified for residual clause; post-Johnson, remanded for resentencing.
North Carolina supervised-release is considered part of the sentence, so the nine-month supervision period counts when calculating the one-year imprisonment threshold for predicates as felonies under the ACCA.
http://www.ca4.uscourts.gov/Opinions/Published/154114.P.pdf
Fourth Circuit: US v. Kenneth Rush (12/21)
Fourth Amendment - police responding to a written request to remove a fellow occupant from the house informed the deft that they had a search warrant. Officer claims that this was to protect the woman who had filed the request. All agree that the subsequent search violated 4A - the question is whether the officer's actions qualify for the good faith exception to the Exclusionary Rule -- court holds emphatically that it doesn't.
http://www.ca4.uscourts.gov/Opinions/Published/144695.P.pdf
http://www.ca4.uscourts.gov/Opinions/Published/144695.P.pdf
Second Circuit: Milan v. Wertheimer
Children's law guardians are not state actors for purposes of S1983 actions.
SOL had run against the other defendants.
http://www.ca2.uscourts.gov/decisions/isysquery/e3ab5106-0b65-43b4-8bb7-5ac49983eaa6/2/doc/14-3527_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e3ab5106-0b65-43b4-8bb7-5ac49983eaa6/2/hilite/
SOL had run against the other defendants.
http://www.ca2.uscourts.gov/decisions/isysquery/e3ab5106-0b65-43b4-8bb7-5ac49983eaa6/2/doc/14-3527_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e3ab5106-0b65-43b4-8bb7-5ac49983eaa6/2/hilite/
Second Circuit: Mangino v. Inc. Vill. of Patchogue
S1983.
First Amendment retaliation: warrantless entry and abuse of process by a housing inspector against an unregistered landlord not a basis for retaliation claim, as (1) there was probable cause for the eventual citation by the time that the citation was filed (as opposed to entry made), and (2) no showing that the regulatory process was excessive.
Abuse of process: there was no clearly established constitutional right to be free of abuse of process in a situation where probable cause exists.
No error in Jury Instructions.
http://www.ca2.uscourts.gov/decisions/isysquery/e3ab5106-0b65-43b4-8bb7-5ac49983eaa6/1/doc/14-3253_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e3ab5106-0b65-43b4-8bb7-5ac49983eaa6/1/hilite/
First Amendment retaliation: warrantless entry and abuse of process by a housing inspector against an unregistered landlord not a basis for retaliation claim, as (1) there was probable cause for the eventual citation by the time that the citation was filed (as opposed to entry made), and (2) no showing that the regulatory process was excessive.
Abuse of process: there was no clearly established constitutional right to be free of abuse of process in a situation where probable cause exists.
No error in Jury Instructions.
http://www.ca2.uscourts.gov/decisions/isysquery/e3ab5106-0b65-43b4-8bb7-5ac49983eaa6/1/doc/14-3253_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e3ab5106-0b65-43b4-8bb7-5ac49983eaa6/1/hilite/
First Circuit: Bucci v. US (12/21)
Habeas for ineffective assistance denied.
Deft asked counsel to negotiate plea, counsel told deft that he did, but didn't in fact negotiate, as he thought it would be futile.
District court denial of second/successive construed as application to Circuit to file.
This is the third petition, second was construed as joint habeas/60(b), dismissed as to both.
Third cannot be construed as first in time due to unavailability of evidence for claim in the earlier petition -- congressional intent, among other things.
http://media.ca1.uscourts.gov/pdf.opinions/13-2418P-01A.pdf
Deft asked counsel to negotiate plea, counsel told deft that he did, but didn't in fact negotiate, as he thought it would be futile.
District court denial of second/successive construed as application to Circuit to file.
This is the third petition, second was construed as joint habeas/60(b), dismissed as to both.
Third cannot be construed as first in time due to unavailability of evidence for claim in the earlier petition -- congressional intent, among other things.
http://media.ca1.uscourts.gov/pdf.opinions/13-2418P-01A.pdf
A new title
When this blog resumes publication in the next few days, it will largely operate along the lines of The Manhattan Barrister, which the present author edited in the final year of law school and for a few years thereafter. It is quick work, not to be regarded as authoritative in any way, but hopefully of use to academics, practitioners, and citizens.
The general idea is that once a day, the precedential slip opinions from the Circuit Courts of Appeal are listed, described, linked,and placed in searchable categories.
- CB
The general idea is that once a day, the precedential slip opinions from the Circuit Courts of Appeal are listed, described, linked,and placed in searchable categories.
- CB
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