Statute of Limitations
Filing time limit in statute is not jurisdictional, as there is no specific intent evident in the statute to make it one.
No error in CIT declining to issue declaratory relief, as there are other avenues for plaintiff to challenge.
Where a court dismisses claims on discretionary grounds and some similar claims under a statute of limitations that is later held not to be jurisdictional, the court of appeals can presume that the latter claims would similarly have been dismissed on discretionary grounds.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1726.Opinion.2-1-2016.1.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.
Eleventh Circuit: Crew One Productions, Inc. v. National Labor Relations Board
Labor, Employment, Agency
Given hiring agency's lack of control over stage hands on the job and several other factors, NRLB certification of an exclusive representative was not supported by substantial evidence.
http://media.ca11.uscourts.gov/opinions/pub/files/201510429.pdf
Given hiring agency's lack of control over stage hands on the job and several other factors, NRLB certification of an exclusive representative was not supported by substantial evidence.
http://media.ca11.uscourts.gov/opinions/pub/files/201510429.pdf
Eleventh Circuit: Ramon F. Danny, Jr. v. Secretary, Florida Department of Corrections, et al.
Habeas, AEDPA
Untimely state direct appeal captioned under the shared collateral/direct state procedural rule cannot be construed as a collateral challenge to toll the AEDPA clock, as it doesn't reach the merits of the collateral challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201415522.pdf
Untimely state direct appeal captioned under the shared collateral/direct state procedural rule cannot be construed as a collateral challenge to toll the AEDPA clock, as it doesn't reach the merits of the collateral challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201415522.pdf
Ninth Circuit: MARIO GARCIA V. COUNTY OF RIVERSIDE
S1983
Denials of state law quasi-judicial immunity can be appealed on an interlocutory basis, as the immunity is potentially absolute.
Arrest of a person with a a substantial difference in height from the person described on the warrant states a 14A S1983 claim.
State immunity statute shields only the arresting officer, and presumes reasonable belief.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/03/13-56857.pdf
Denials of state law quasi-judicial immunity can be appealed on an interlocutory basis, as the immunity is potentially absolute.
Arrest of a person with a a substantial difference in height from the person described on the warrant states a 14A S1983 claim.
State immunity statute shields only the arresting officer, and presumes reasonable belief.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/03/13-56857.pdf
Ninth Circuit: MANUEL VALENCIA V. LORETTA E. LYNCH
Immigration
Chevron deference to AG decision that grandfathering statute implicitly bars relief to later substituted applicants.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70414.pdf
Chevron deference to AG decision that grandfathering statute implicitly bars relief to later substituted applicants.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70414.pdf
Ninth Circuit: JERRY VILLAVICENCIO-ROJAS V. LORETTA E. LYNCH
Immigration
For immigration purposes, where there are two counts charged, but they are from a single event, case, and sentence, the petitioner remains a first-time offender.
Concurrence: Single case and sentence. The critical thing is that the petitioner has not previously been considered a first time offender.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70620.pdf
For immigration purposes, where there are two counts charged, but they are from a single event, case, and sentence, the petitioner remains a first-time offender.
Concurrence: Single case and sentence. The critical thing is that the petitioner has not previously been considered a first time offender.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70620.pdf
Eighth Circuit: State of Nebraska v. EPA
Environment, Administrative
Agency's lack of deference to state findings on costs accrued by different methods of pollution abatement was per se not an abuse of discretion, given that the Act contemplates more than ministerial approval.
Federal agency's regional rule that incorporates a national standard is not barred from review as a national rule, since the agency has not found it to be a national rule. The expertise involved mandates deference to the agency's findings, which are not an abuse of its discretion.
http://media.ca8.uscourts.gov/opndir/16/02/123084P.pdf
Agency's lack of deference to state findings on costs accrued by different methods of pollution abatement was per se not an abuse of discretion, given that the Act contemplates more than ministerial approval.
Federal agency's regional rule that incorporates a national standard is not barred from review as a national rule, since the agency has not found it to be a national rule. The expertise involved mandates deference to the agency's findings, which are not an abuse of its discretion.
http://media.ca8.uscourts.gov/opndir/16/02/123084P.pdf
Eighth Circuit: Travis Chaney v. Carolyn W. Colvin
SSA
ALJ's less than fully credible conclusions are nonetheless supported by substantial evidence.
http://media.ca8.uscourts.gov/opndir/16/02/143433P.pdf
ALJ's less than fully credible conclusions are nonetheless supported by substantial evidence.
http://media.ca8.uscourts.gov/opndir/16/02/143433P.pdf
Eighth Circuit: Herman Hutton v. Danny Maynard, Sr.
Discrimination
Discriminatory language used by employer between an employee's promotion of a minority candidate and the subsequent dismissal of the employee is insufficient to prove direct causation, and where the language is not employment-related, it is insufficient to establish indirect causation.
http://media.ca8.uscourts.gov/opndir/16/02/151300P.pdf
Discriminatory language used by employer between an employee's promotion of a minority candidate and the subsequent dismissal of the employee is insufficient to prove direct causation, and where the language is not employment-related, it is insufficient to establish indirect causation.
http://media.ca8.uscourts.gov/opndir/16/02/151300P.pdf
Seventh Circuit: Garrett Fishwick v. City of Chicago
Discrimination
Claims of a lack of transparency in hiring insufficient to violate consent order barring political influence in hiring,also time-barred.
Res judicata bars claim previously dismissed in state court.
No evidence that gov't consented to claim splitting, as it asserted res judicata in all filings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:14-2977:J:Bauer:aut:T:fnOp:N:1697358:S:0
Claims of a lack of transparency in hiring insufficient to violate consent order barring political influence in hiring,also time-barred.
Res judicata bars claim previously dismissed in state court.
No evidence that gov't consented to claim splitting, as it asserted res judicata in all filings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:14-2977:J:Bauer:aut:T:fnOp:N:1697358:S:0
Seventh Circuit: Terry Deets v. Massman Construction Company
Employment, Discrimination
Statement by employer that percentage of minority employees was to low creates genuine issue of material fact as to whether the subsequent layoff of a worker who had recently lost seniority was discriminatory.
Mitigation as an affirmative defense for Title VII operates as a damages offset.
S1981 allows suits against corporate entities in joint venture, as it contemplates interference with contracts.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-1411:J:Williams:aut:T:fnOp:N:1697105:S:0
Statement by employer that percentage of minority employees was to low creates genuine issue of material fact as to whether the subsequent layoff of a worker who had recently lost seniority was discriminatory.
Mitigation as an affirmative defense for Title VII operates as a damages offset.
S1981 allows suits against corporate entities in joint venture, as it contemplates interference with contracts.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-1411:J:Williams:aut:T:fnOp:N:1697105:S:0
Seventh Circuit: USA v. Lawrence McCarroll
Sentencing
Where a change in the sentencing law would not affect the guidelines calculation, a reduction of the term of imprisonment is not authorized by the statute, despite the fact that the lower point total might allow for more discretion at resentencing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-2492:J:PerCuriam:aut:T:fnOp:N:1697080:S:0
Where a change in the sentencing law would not affect the guidelines calculation, a reduction of the term of imprisonment is not authorized by the statute, despite the fact that the lower point total might allow for more discretion at resentencing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-2492:J:PerCuriam:aut:T:fnOp:N:1697080:S:0
Seventh Circuit:Hans-Peter Baumeister v. Deutsche Lufthansa AG
International, Contracts
Foreign contract covering performance by a nonparty but assigning liability for complete nonperformance to the nonparty does not allow the party to the contract to be sued for breach in a US forum under a foreign statutory cause of action adopted by the contract. (Airline code-sharing, EU legislation)
(In a different matter:)
Domestic contract where the foreign nonparty generally incorporates the foreign statutory cause of action in its agreements is not modified to include the cause of action under apparent authority when the nonparty is the visible agent in the fulfillment of the contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:14-2633:J:Posner:aut:T:fnOp:N:1696487:S:0
Foreign contract covering performance by a nonparty but assigning liability for complete nonperformance to the nonparty does not allow the party to the contract to be sued for breach in a US forum under a foreign statutory cause of action adopted by the contract. (Airline code-sharing, EU legislation)
(In a different matter:)
Domestic contract where the foreign nonparty generally incorporates the foreign statutory cause of action in its agreements is not modified to include the cause of action under apparent authority when the nonparty is the visible agent in the fulfillment of the contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:14-2633:J:Posner:aut:T:fnOp:N:1696487:S:0
Fifth Circuit: USA v. Oscar Juarez
Sentencing
Where the court erroneously states at sentencing that there is no guidelines range, a sentence representing an upward departure is error - remanded.
Not harmless.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40191-CR0.pdf
Where the court erroneously states at sentencing that there is no guidelines range, a sentence representing an upward departure is error - remanded.
Not harmless.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40191-CR0.pdf
Fourth Circuit:James Hayes v. Delbert Services Corporation
Arbitration, Choice of Law, Tribe Law
Loan agreement arbitration clause electing the forum and law of the Sioux nation is invalid and unenforceable, as it operates as a waiver of all federal rights.
Not severable from arbitration provision.
No need to exhaust tribal remedies, as the controversy has nothing to do with the tribe.
http://www.ca4.uscourts.gov/Opinions/Published/151170.P.pdf
Loan agreement arbitration clause electing the forum and law of the Sioux nation is invalid and unenforceable, as it operates as a waiver of all federal rights.
Not severable from arbitration provision.
No need to exhaust tribal remedies, as the controversy has nothing to do with the tribe.
http://www.ca4.uscourts.gov/Opinions/Published/151170.P.pdf
Third Circuit: Jeffrey Wiest v. Tyco Electronics Corp
FRCP, Torts, Employment
12(b)6 ruling for plaintiff does not compel a finding at summary judgment under law of the case that there was sufficient nexus between the protected activity and the adverse action.
Insufficient nexus, nondiscriminatory motive.
http://www2.ca3.uscourts.gov/opinarch/152034p.pdf
12(b)6 ruling for plaintiff does not compel a finding at summary judgment under law of the case that there was sufficient nexus between the protected activity and the adverse action.
Insufficient nexus, nondiscriminatory motive.
http://www2.ca3.uscourts.gov/opinarch/152034p.pdf
Third Circuit: Moore & Co P A v. Majestic Blue Fisheries LLC
FCA
Amended disclosure bar is not jurisdictional - court properly considers under 12(b)6.
Documents acquired by FOIA can constitute a prior disclosure.
Realtors's information was independent of and materially added to the information already available by establishing the who, what, where, why and when.
http://www2.ca3.uscourts.gov/opinarch/144292p.pdf
Amended disclosure bar is not jurisdictional - court properly considers under 12(b)6.
Documents acquired by FOIA can constitute a prior disclosure.
Realtors's information was independent of and materially added to the information already available by establishing the who, what, where, why and when.
http://www2.ca3.uscourts.gov/opinarch/144292p.pdf
Second Circuit: Atlantica Holdings, Inc. v. Sovereign Wealth Fund Samruk-Kazyna JSC
FISA, Securities
FISA provides a cause of action under commercial exception for extraterritorial misrepresentations where the losses were directly and (usually to some degree foreseeably) sustained within the USA.
Direct effects on nonparties would qualify.
Locus delicti is where the harm is sustained.
Court declines to exercise pendent jurisdiction over interlocutory appeal on personal jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/doc/14-917_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/hilite/
FISA provides a cause of action under commercial exception for extraterritorial misrepresentations where the losses were directly and (usually to some degree foreseeably) sustained within the USA.
Direct effects on nonparties would qualify.
Locus delicti is where the harm is sustained.
Court declines to exercise pendent jurisdiction over interlocutory appeal on personal jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/doc/14-917_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/hilite/
Federal Circuit: TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
Patent
(Which, again, is among the many areas of the law in which we are relatively clueless.)
Although there is a heavy presumption in favor of common meanings in patent language, a claimant utilizing another interpretation does not have to explicitly redefine the word or disavow the common meaning.
Term is specific, not general.
Academic paper by inventor describing an invention not in controversy cannot be used to determine construction of claim.
Dependent claims are presumed to be narrower than the independent claims from which they derive.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1146.Opinion.1-29-2016.1.PDF
(Which, again, is among the many areas of the law in which we are relatively clueless.)
Although there is a heavy presumption in favor of common meanings in patent language, a claimant utilizing another interpretation does not have to explicitly redefine the word or disavow the common meaning.
Term is specific, not general.
Academic paper by inventor describing an invention not in controversy cannot be used to determine construction of claim.
Dependent claims are presumed to be narrower than the independent claims from which they derive.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1146.Opinion.1-29-2016.1.PDF
Eleventh Circuit: Brandon Jones v. Commissioner, GA DOC, et al. (2)
S1983, Due Process
Due process claim against state secrecy statute doesn't state a claim under S1983.
Eighth amendment claim not appealed, insufficient, as no better method has been established.
Insufficient injury for standing resulting from state secrecy statute.
Lateness of appeal argues against equities of stay.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.ord.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Due process claim against state secrecy statute doesn't state a claim under S1983.
Eighth amendment claim not appealed, insufficient, as no better method has been established.
Insufficient injury for standing resulting from state secrecy statute.
Lateness of appeal argues against equities of stay.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.ord.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Eleventh Circuit: Brandon Jones v. Commissioner, GA DOC, et al. (1)
Due Process
Concurrence in denial of en banc - no Due Process right to discovery of method of manufacture of state execution materials, given state secrecy statute.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.opn.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Concurrence in denial of en banc - no Due Process right to discovery of method of manufacture of state execution materials, given state secrecy statute.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.opn.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Ninth Circuit: JACKSONVILLE POLICE & FIRE PF V. CVB FINANCIAL CORP
Securities
Statements not actionable, as they were sufficiently hedge, described present reality.
Sufficient falsity and scienter for material omission in "no serious doubts" statement on 10-q, as firm was on notice of largest borrower's difficulties.
Announcement of a subpoena amounted to corrective disclosure, given subsequent lack of market reaction to loan writeoffs.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/01/13-56838.pdf
Statements not actionable, as they were sufficiently hedge, described present reality.
Sufficient falsity and scienter for material omission in "no serious doubts" statement on 10-q, as firm was on notice of largest borrower's difficulties.
Announcement of a subpoena amounted to corrective disclosure, given subsequent lack of market reaction to loan writeoffs.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/01/13-56838.pdf
Eighth Circuit: Ruben Alva-Arellano v. Loretta E. Lynch
Immigration
No abuse of discretion in agency's declining to reopen case where IJ did not inform potential deportee about relief available by means of asylum and CAT, as the IJ had not duty to inform absent evidence of relevance, and the evidence was discoverable prior to the hearing.
http://media.ca8.uscourts.gov/opndir/16/02/142957P.pdf
No abuse of discretion in agency's declining to reopen case where IJ did not inform potential deportee about relief available by means of asylum and CAT, as the IJ had not duty to inform absent evidence of relevance, and the evidence was discoverable prior to the hearing.
http://media.ca8.uscourts.gov/opndir/16/02/142957P.pdf
Seventh Circuit: USA v. Aaron Thompson
FTCA SOL
Statute of limitations bars claims related to prenatal treatment and birth, as both accrued on or around the time of birth.
No equitable tolling, as the federal status of the clinic was discoverable.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:15-1868:J:Bauer:aut:T:fnOp:N:1696343:S:0
Statute of limitations bars claims related to prenatal treatment and birth, as both accrued on or around the time of birth.
No equitable tolling, as the federal status of the clinic was discoverable.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:15-1868:J:Bauer:aut:T:fnOp:N:1696343:S:0
Seventh Circuit: USA v. Titan International, Incorporated
Tax
Federal government can subpoena business records from a previous year that have already been the target of inspection in prior tax years, so long as the second subpoena is not for the purposes of reopening the audit of the previous year's returns.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:14-3789:J:Sykes:aut:T:fnOp:N:1695969:S:0
Federal government can subpoena business records from a previous year that have already been the target of inspection in prior tax years, so long as the second subpoena is not for the purposes of reopening the audit of the previous year's returns.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:14-3789:J:Sykes:aut:T:fnOp:N:1695969:S:0
Seventh Circuit: USA v. Aaron Thompson
Fourth Amendment
Surreptitious video recording made by invited guest in private apartment does not violate 4A, as the only things recorded were within the eyesight of an invited informant who would have been able to testify to them.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:15-2008:J:Kanne:aut:T:fnOp:N:1696062:S:0
Surreptitious video recording made by invited guest in private apartment does not violate 4A, as the only things recorded were within the eyesight of an invited informant who would have been able to testify to them.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:15-2008:J:Kanne:aut:T:fnOp:N:1696062:S:0
Sixth Circuit: Trumbull Cnty. Bd. of Comm'rs v. Village of Lordstown, Ohio
Municipality does not have Article III standing to challenge a second municipality's use of a very large pipe to build a second sewer nearby, since, although the large pipe might someday be used to offer a competing sewer option to a factory in the first municipality, there is insufficient showing that it would happen within the timeframe of the federal noncompete statute.
Dissent: Standing, since judicial resolution would provide present financial certainty. (But would deny on merits.)
http://www.ca6.uscourts.gov/opinions.pdf/16a0022p-06.pdf
Dissent: Standing, since judicial resolution would provide present financial certainty. (But would deny on merits.)
http://www.ca6.uscourts.gov/opinions.pdf/16a0022p-06.pdf
Fifth Circuit: Rochelle Flynn v. Distinctive Home Care, Inc
ADA, Statutory construction
Although a statute incorporated an earlier statute's definition of employment relationships, it did not incorporate the prior statute's requirement that there must be an employment relationship for standing. Independent contractors therefore potentially have a right of action under the second statute.
Circuit split flagged.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50314-CV0.pdf
Although a statute incorporated an earlier statute's definition of employment relationships, it did not incorporate the prior statute's requirement that there must be an employment relationship for standing. Independent contractors therefore potentially have a right of action under the second statute.
Circuit split flagged.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50314-CV0.pdf
Fourth Circuit: Farhan Warfaa v. Yusuf Ali
International
ATS claim barred under the presumption against extraterritorial application, as it does not extensively and directly touch and concern the USA.
Foreign officials cannot claim sovereign immunity in TVPA actions alleging jus cogens violations.
Concur/Dissent: Deft is non-adventitiously a lawful permanent resident who earlier did military training in the USA, so ATS allows the claim.
http://www.ca4.uscourts.gov/Opinions/Published/141810.P.pdf
ATS claim barred under the presumption against extraterritorial application, as it does not extensively and directly touch and concern the USA.
Foreign officials cannot claim sovereign immunity in TVPA actions alleging jus cogens violations.
Concur/Dissent: Deft is non-adventitiously a lawful permanent resident who earlier did military training in the USA, so ATS allows the claim.
http://www.ca4.uscourts.gov/Opinions/Published/141810.P.pdf
Second Circuit: United States v. Vernace
RICO, Crim
Sufficient evidence for RICO predicate where a personal motive and the racketeering motive coexist.
Sufficient evidence for drugs conviction.
No plain error in use of post-hoc amendments to sentencing statute, given independent life sentence and minimal briefing on appeal.
No abuse of discretion in denial of new trial for witness' subsequent initial gambling, given extensive prior illegal activity.
http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/doc/14-2197_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/hilite/
Sufficient evidence for RICO predicate where a personal motive and the racketeering motive coexist.
Sufficient evidence for drugs conviction.
No plain error in use of post-hoc amendments to sentencing statute, given independent life sentence and minimal briefing on appeal.
No abuse of discretion in denial of new trial for witness' subsequent initial gambling, given extensive prior illegal activity.
http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/doc/14-2197_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/hilite/
First Circuit: Colon-Marrero v. Garcia-Velez
Elections, Puerto Rico, Statutory Construction
Congress did not intend that Puerto Rico be considered a "state" under voting law.
Dis-inclusion of Puerto Rico does not burden the voting right, and the principle survives rational basis.
Puerto Rico is considered a state under a second statute barring removal from voter rolls until after two missed elections.
Second statute creates a private right presumptively actionable under S1983.
http://media.ca1.uscourts.gov/pdf.opinions/15-1356P-01A.pdf
Congress did not intend that Puerto Rico be considered a "state" under voting law.
Dis-inclusion of Puerto Rico does not burden the voting right, and the principle survives rational basis.
Puerto Rico is considered a state under a second statute barring removal from voter rolls until after two missed elections.
Second statute creates a private right presumptively actionable under S1983.
http://media.ca1.uscourts.gov/pdf.opinions/15-1356P-01A.pdf
First Circuit: Linton v. Saba
Habeas, Confrontation Clause
Habeas denied for substantial evidence.
Habeas denied for confrontation clause challenge where judge paraphrased test as whether the statement would be used, as opposed to being available for use. Statement found to be not testimonial, since the victim was still upset from the incident and speaking to a family member.
http://media.ca1.uscourts.gov/pdf.opinions/14-2110P-01A.pdf
Habeas denied for substantial evidence.
Habeas denied for confrontation clause challenge where judge paraphrased test as whether the statement would be used, as opposed to being available for use. Statement found to be not testimonial, since the victim was still upset from the incident and speaking to a family member.
http://media.ca1.uscourts.gov/pdf.opinions/14-2110P-01A.pdf
First Circuit: Falto-de Roman v. Municipal Government
S1983
Trial court when denying qualified immunity must address all theories of the claim.
http://media.ca1.uscourts.gov/pdf.opinions/14-1470U-01A.pdf
Trial court when denying qualified immunity must address all theories of the claim.
http://media.ca1.uscourts.gov/pdf.opinions/14-1470U-01A.pdf
Eleventh Circuit: Ace Patterson v. Secretary, Florida Department of Corrections
Habeas, AEDPA
Partial vacatur of sentence without formal resentencing resets the AEDPA clock, and subsequent collateral attacks are therefore not second/successive. Circuit split flagged relative to precedent.
Concurrence: Yep.
Dissent: Nope.
http://media.ca11.uscourts.gov/opinions/pub/files/201212653.pdf
Partial vacatur of sentence without formal resentencing resets the AEDPA clock, and subsequent collateral attacks are therefore not second/successive. Circuit split flagged relative to precedent.
Concurrence: Yep.
Dissent: Nope.
http://media.ca11.uscourts.gov/opinions/pub/files/201212653.pdf
Seventh Circuit: Michael Belleau v. Edward Wall
Release conditions - electronic monitoring
No Fourth Amendment violation for warrantless perpetual electronic monitoring, given the incremental loss of privacy and substantial social benefits.
Electronic monitoring isn't Ex post facto, as it's not a punishment.
Concurrence in J: Reasonable special needs search, but if tech was more ubiquitous, possibly a different calculus. Not punitive in purpose or effect.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:15-3225:J:Flaum:con:T:fnOp:N:1694901:S:0
No Fourth Amendment violation for warrantless perpetual electronic monitoring, given the incremental loss of privacy and substantial social benefits.
Electronic monitoring isn't Ex post facto, as it's not a punishment.
Concurrence in J: Reasonable special needs search, but if tech was more ubiquitous, possibly a different calculus. Not punitive in purpose or effect.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:15-3225:J:Flaum:con:T:fnOp:N:1694901:S:0
Seventh Circuit: Stark Excavating, Incorporated v. Thomas Perez
Administrative
Although the ALJ was uniquely qualified to make credibility determinations on willfulness, the reviewing Commission's reversal was supported by substantial evidence, as the ALJ's finding was susceptible of multiple interpretations.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:14-3809:J:Rovner:aut:T:fnOp:N:1694913:S:0
Although the ALJ was uniquely qualified to make credibility determinations on willfulness, the reviewing Commission's reversal was supported by substantial evidence, as the ALJ's finding was susceptible of multiple interpretations.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:14-3809:J:Rovner:aut:T:fnOp:N:1694913:S:0
Fifth Circuit: Jay Barrash v. Amer Assn of Neurl Surgns Inc.
Torts
Although the professional association did not provide the member under censure with sufficient due process under the rules of the organization, there was no inherent due process violation, as the member had sufficient advance notice of the materials in dispute.
As the association could have revoked the censure in full after the partial judicial rescission, there is no due process violation in the partial judicial rescission of the censure.
Under state law- judicial non-intervention bars relief for palintiff under contract theory in an alleged violation of bylaws.
http://www.ca5.uscourts.gov/opinions/pub/14/14-20764-CV0.pdf
Although the professional association did not provide the member under censure with sufficient due process under the rules of the organization, there was no inherent due process violation, as the member had sufficient advance notice of the materials in dispute.
As the association could have revoked the censure in full after the partial judicial rescission, there is no due process violation in the partial judicial rescission of the censure.
Under state law- judicial non-intervention bars relief for palintiff under contract theory in an alleged violation of bylaws.
http://www.ca5.uscourts.gov/opinions/pub/14/14-20764-CV0.pdf
Second Circuit: United States v. Pruitt
Sentencing
No plain error in within-guidelines sentence issued without explanation, as the sentencing judge adopted the findings of the PSR, which contains the justifications for the sentence.
Checkbox on sentencing form imposing a within-guidelines sentence risks legal error. Explicit request to Congress that it amend it.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/doc/14-1921_opn_and_attachment.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/hilite/
No plain error in within-guidelines sentence issued without explanation, as the sentencing judge adopted the findings of the PSR, which contains the justifications for the sentence.
Checkbox on sentencing form imposing a within-guidelines sentence risks legal error. Explicit request to Congress that it amend it.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/doc/14-1921_opn_and_attachment.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/hilite/
Second Circuit: Victory v. Pataki et al.
S1983 Due Process - Parole
Prison inmate with a parole release date has a cognizable liberty interest.
As challenge to tribunal's decision was only possible by contradicting prior unsworn testimony of its members, there was no impartial decisionmaker at the point of parole rescission.
Absolute immunity for quasijudicial officers of parole board does not extend to fabrication of evidence before the initiation of proceedings.
Genuine issues of material fact on merits - remand.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/doc/13-3592_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/hilite/
Prison inmate with a parole release date has a cognizable liberty interest.
As challenge to tribunal's decision was only possible by contradicting prior unsworn testimony of its members, there was no impartial decisionmaker at the point of parole rescission.
Absolute immunity for quasijudicial officers of parole board does not extend to fabrication of evidence before the initiation of proceedings.
Genuine issues of material fact on merits - remand.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/doc/13-3592_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/hilite/
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