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/$file/15-5037-1589972.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
DC Circuit: Friends of Animals v. Dan Ashe
Endangered Species - Administrative Law
Not only was suit requiring final action on a species untimely because it was filed more than 60 days after the notice of claim, but there was no basis for a final determination suit, as only an initial determination can trigger the need for a final determination, and that's another lawsuit entirely.
https://www.cadc.uscourts.gov/internet/opinions.nsf/18ECBD126C42112385257F230057312D/$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
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