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.
Eighth Circuit: United States v. Kaylo Roelandt
Fourth Amendment
Given police knowledge of gang affiliation, past felony conviction, and likelihood of retaliatory shootings in the area due to a recent shooting (in addition to, apparently, a CI tip), furtive behavior sufficed for a Terry stop.
United States v. Kaylo Roelandt
Eighth Circuit: Patrick A. Dadd v. Anoka County
Prisons, S1983
Deliberate indifference suit states a claim where arresting officers and jail personnel were told of recent dental surgery but withheld pain relievers. There is no implicit passage-of-time requirment for deliberate indifference claims.
As the timing-based assertion of qualified immunity was nonfrivolous, the other arguments won't be sanctioned.
Patrick A. Dadd v. Anoka County
Sixth Circuit: USA v. Ryan Collins - Northern District of Ohio at Akron
Sentencing
Post-verdict jury poll as to appropriate sentence was not an inappropriate factor in sentencing judge's decision.
Sentence was not substantively unreasonable.
USA v. Ryan Collins - Northern District of Ohio at Akron
Fifth Circuit: Hartford Casualty Insurance Co, et al v. DP Engine
Insurance
Under state law, no duty to defend if the policy excludes professional services and all of the actions described in the complaint require professional training.
Given the many theories of harm and recovery, error to rule that duty to defend was coeval with duty to indemnify.
Counterclaims relied on duty to defend.
Hartford Casualty Insurance Co, et al v. DP Engine
Second Circuit: In re Payment Card Interchange Fee and Merchant Discount Antitrust
Class Actions
Error to certify a class as settlement-only where injunctive and monetary remedies sought created conflicting interests. Counsel had little incentive to zealously fight for injunctive component, given fee distribution, and class members could not opt-out.
Settlement agreement a nullity. [Rather a lot of money.]
In re Payment Card Interchange Fee and Merchant Discount Antitrust
First Circuit: Baker v. Harrington
Legal Ethics, Bankruptcy
Misleading characterization of statute and precedent calculated to delay the proceedings is an impermissible artifice of zeal.
Sanction of having to enroll in a Legal Ethics course upheld.
Baker v. Harrington
First Circuit: Worcester v. Springfield Terminal Railway
FRCP, Erie
In determining when the clock is tolled for filing of an appeal, the critical question is whether the court is involved in ending the last motion filed. A motion filed and withdrawn without court involvement does not toll the limit, but a motion filed and then withdrawn in a telephone colloquy stops the clock.
No error in use of common law standard where federal statute had no standard for punitive damages as opposed to borrowing state law standard, given legislation's intent of standardizing the remedy and the background principles of common law against which Congress legislates.
Worcester v. Springfield Terminal Railway
First Circuit: Rivera-Rivera v. US
Ineffective Assistance, Interstate Commerce
No ineffective assistance in lack of objection to interstate commerce element to mall robbery, as subsequent appellate review said that the trial court ruling would have been upheld in de novo review
Dissent -- In dicta.
Rivera-Rivera v. US
Federal Circuit: WELLS FARGO & COMPANY v. US
Tax
Given the background of merger law against which the rules were set, historical tax overpayments and underpayments of companies composed of merged entities can be considered as a single amount, so long as no amounts are offset which were incurred by two companies which both had a distinct existence at the time of the payments.
(Reminder, as always, quick paraphrase of court on matter of public concern -- don't rely.)
WELLS FARGO & COMPANY v. US
Given the background of merger law against which the rules were set, historical tax overpayments and underpayments of companies composed of merged entities can be considered as a single amount, so long as no amounts are offset which were incurred by two companies which both had a distinct existence at the time of the payments.
(Reminder, as always, quick paraphrase of court on matter of public concern -- don't rely.)
WELLS FARGO & COMPANY v. US
Tenth Circuit: Nelson v. United States
Torts, FTCA
So long as the relevant acts of the landowner were purposeful, implicit invitation to use land for recreation can be imputed, even where the landowner subjectively believes the visitor to be a trespasser.
Willful or malicious conduct is best determined by the finder of fact, not on appeal.
Nelson v. United States
So long as the relevant acts of the landowner were purposeful, implicit invitation to use land for recreation can be imputed, even where the landowner subjectively believes the visitor to be a trespasser.
Willful or malicious conduct is best determined by the finder of fact, not on appeal.
Nelson v. United States
Ninth Circuit: USA V. NICHOLAS LINDSEY
Fraud
Where a lender requests specific information, the information provided is considered material to the lender's deliberations.
USA V. NICHOLAS LINDSEY
Where a lender requests specific information, the information provided is considered material to the lender's deliberations.
USA V. NICHOLAS LINDSEY
Eighth Circuit: United States v. Juan Johnson
Sentencing
Despite ministerial omissions, sentence not procedurally unreasonable, as court seemed to be aware of the relevant factors.
Sentence for violation of terms of supervised release not substantively unreasonable, as it was within the maximum for the original offense of conviction.
No error in not recusing.
United States v. Juan Johnson
Despite ministerial omissions, sentence not procedurally unreasonable, as court seemed to be aware of the relevant factors.
Sentence for violation of terms of supervised release not substantively unreasonable, as it was within the maximum for the original offense of conviction.
No error in not recusing.
United States v. Juan Johnson
Eighth Circuit: Carlos Rivas-Quilizapa v. Loretta E. Lynch
Immigration
Statements in interview establishing that the country was a dangerous place did not mandate that the IJ advise the petitioner of forms of relief.
Facts that would have been the basis of a claim were in evidence.
Carlos Rivas-Quilizapa v. Loretta E. Lynch
Eighth Circuit: Danny Connor v. CO 1 Box
Prisons
Dismissal of S1983 claim was improper, given claim's suggestion that officials thwarted attempts to file grievances. Leave to amend was properly denied.
Dismissal of S1983 claim was improper, given claim's suggestion that officials thwarted attempts to file grievances. Leave to amend was properly denied.
Danny Connor v. CO 1 Box
Eighth Circuit: Donnie Cooper v. General American Life Ins. Co
FRCP
Denial of statutory penalty & attorneys fees, as there was no asserted or actual breach of insurance policy terms.
Donnie Cooper v. General American Life Ins. Co.
Denial of statutory penalty & attorneys fees, as there was no asserted or actual breach of insurance policy terms.
Donnie Cooper v. General American Life Ins. Co.
Eighth Circuit: United States v. Michael Lindsey
Sentencing, ACCA
As the challenge to the existence of the predicates in the PSR was untimely and did not make a showing as to why an untimely challenge should be allowed, the convictions are considered to be undisputed facts.
State assault statute that proscribes acts that cause the fear of assault is a valid ACCA predicate.
United States v. Michael Lindsey
As the challenge to the existence of the predicates in the PSR was untimely and did not make a showing as to why an untimely challenge should be allowed, the convictions are considered to be undisputed facts.
State assault statute that proscribes acts that cause the fear of assault is a valid ACCA predicate.
United States v. Michael Lindsey
Eighth Circuit: United States v. Christopher Fisher
Sentencing
Per curiam - within-guidelines sentence for violations of supervised release not substantively unreasonable.
United States v. Christopher Fisher
Seventh Circuit: William Charles Construction v. Teamsters Local Union 627
Labor Law, Statute of Limitations, Arbitration
Clock did not begin to run on the time to challenge a decision of a committee authorized by a CBA until the movant received a copy of the notice of decision at the commencement of litigation.
.
Where a contract explicitly supersedes the CBA and establishes an exclusive remedy, party is not bound by CBA arbitration outcome.
Special appearance at arbitration to dispute its validity does not establish consent to arbitration.
William Charles Construction v. Teamsters Local Union 627
Seventh Circuit: USA v. Alexis Miranda-Sotolongo
Fourth Amendment, Sentencing
Check of license plate registration in a database is not a Fourth Amendment search.
Where the facts are ambiguous, the stop is lawful, so long as the possibility of illegal activity is sufficiently probable.
Supervised release conditions (including earning GED) remanded for clarification.
USA v. Alexis Miranda-Sotolongo
Check of license plate registration in a database is not a Fourth Amendment search.
Where the facts are ambiguous, the stop is lawful, so long as the possibility of illegal activity is sufficiently probable.
Supervised release conditions (including earning GED) remanded for clarification.
USA v. Alexis Miranda-Sotolongo
Seventh Circuit: Joseph Felton v. City of Chicago
S1983
S1983 excessive force suit states a claim if the only evidence to the contrary is in newspaper stories outside of the record.
Joseph Felton v. City of Chicago
Seventh Circuit: USA v. Saliou Mbaye
Fraud, Crim, Sentencing
Testimony of co-defts and lack of tax reporting established sufficient evidence for bank fraud.
Obstruction enhancement appropriate where deft sticks to alibi on the stand.
Within guidelines sentence substantively upheld.
USA v. Saliou Mbaye
Seventh Circuit: Jack Brown v. Kevin Smith
ADA
Question of essential function is for the fact-finder, even where local government holds the qualification to be a prerequisite for the position.
Time allocation was a fair method of determining essential nature of function.
No claim for lack of mitigation, as there was only one bus company in town, and plaintiff started his own business.
Jack Brown v Kevin Smith
Seventh Circuit: USA v. Juan Adame
Crim, Interstate commerce, FRE
Sufficient evidence on merits.
Use of building for rental establishes interstate commerce requirement of the arson statute.
Historical cell site data admissible under Daubert, since it was appropriately qualified. Ultimately harmless.
Agent testimony variations from deposition are not properly considered here, since the record was not amended to include the deposition version.
Fact that deft talked about fire on incidental audio associated with video allowed into jury room not overly prejudicial.
USA v. Juan Adame
Seventh Circuit: Noah Dietchweiler v. Steve Lucas
Due Process
Per curiam -- Due process satisfied for high school suspension where there was notice of the general allegation and a chance to be heard, despite lack of date-specific accusation of drug use.
Concurrence (2) -- troublingly unspecific notice.
Noah Dietchweiler v. Steve Lucas
Seventh Circuit: Arlene Simpson v. St. James Hospital
Discrimination, Title VII
Anecdotal evidence insufficient to establish valid comparators.
Arlene Simpson v. St. James Hospital
Seventh Circuit: Chun Sui Yuan v. Loretta E. Lynch
Immigration
Insufficient substantial evidence for agency's adverse findings on credibility.
Chun Sui Yuan v. Loretta E. Lynch
Insufficient substantial evidence for agency's adverse findings on credibility.
Chun Sui Yuan v. Loretta E. Lynch
Fifth Circuit: Mary Smith, et al v. Regional Transit Authority
ERISA, Agency
IRS standard is the appropriate test for determining, for the purposes of ERISA, if a private company is an agency or instrumentality of a government body, and by this standard, the private company that operates the transit system qualifies.
Deft not estopped from invoking governmental exemption, as the terms of the statute control.
Statute of limitations ran from first letter saying that some claims would not be funded.
PArty asserting discovery violation has to establish significance of the evidence sought.
Mary Smith, et al v. Regional Transit Authority
Fifth Circuit: Patricia Morris v. Town of Independence, et al
Discrimination
Given window clerk's part-time status and sui generis duties, there were no relevant comparators to test a claim of racial discrimination.
Patricia Morris v. Town of Independence, et al
Given window clerk's part-time status and sui generis duties, there were no relevant comparators to test a claim of racial discrimination.
Patricia Morris v. Town of Independence, et al
Fifth Circuit: Noris Rogers v. Pearland Indep School District
FRCP, Title VII,
Mere statement asserting claim is not enough to preserve disparate impact theory of claim.
Difference between comparator's criminal record and that of plaintiff establishes that they are not similarly situated.
Dissent: Comparator valid, since the relevant bit is that the convictions were not disclosed on the application form.
Noris Rogers v. Pearland Indep School District
Mere statement asserting claim is not enough to preserve disparate impact theory of claim.
Difference between comparator's criminal record and that of plaintiff establishes that they are not similarly situated.
Dissent: Comparator valid, since the relevant bit is that the convictions were not disclosed on the application form.
Noris Rogers v. Pearland Indep School District
Fourth Circuit: Sutasinee Thana v. Board of License Commissioners
Jurisdiction, First Amendment, FRCP
Federal action challenging state liquor control agency restriction on First Amendment grounds is not an imprudent challenge to state court authority via the federal system, since (1) the prudential abstention doctrine technically only applies to holdings of the state's top court; (2) the challenge is to the agency action, not to the court; (3) administrative actions are categorically removed from prudential abstention; (4) the state proceding was a deferential review on merits, and the federal case is seeking damages from violations of the First Amendment; and (5) plaintiff is still actively pursuing the state appeal.
Sutasinee Thana v. Board of License Commissioners
Fourth Circuit: Stella Andrews v. America’s Living Centers, LLC
FRCP, Fees
Award of costs for repetitive litigation can include fees where provided by statute at issue or equitably justified by the conduct of the plaintiff.
Circuit split flagged.
Where refiling is not in bad faith, wanton, or oppressive, award of fees is precluded. Here, Magistrate explicitly suggested refiling action.
Stella Andrews v. America’s Living Centers, LLC
Award of costs for repetitive litigation can include fees where provided by statute at issue or equitably justified by the conduct of the plaintiff.
Circuit split flagged.
Where refiling is not in bad faith, wanton, or oppressive, award of fees is precluded. Here, Magistrate explicitly suggested refiling action.
Stella Andrews v. America’s Living Centers, LLC
Fourth Circuit: John Vannoy v. Federal Reserve Bank
FMLA, ADA
Letter to employee regarding the medical leave did not comport with statute, since it didn't mention right to restoration of status.
Assertion of prejudice by plaintiff makes the lack of notice a genuine issue of material fact for the fact-finder at trial.
Plaintiff must make an evidentiary showing of pretext to present a genuine issue where deft has established a bona fide reason for the allegedly retaliatory act.
No equitable basis for ADA claims.
John Vannoy v. Federal Reserve Bank
Second Circuit: OneWest Bank, N.A. v. Robert W. Melina
FRCP
A national bank is considered to be a citizen of the state which its articles of association designate as the location of its main (head) office, regardless of the location of its principal place of business.
OneWest Bank, N.A. v. Robert W. Melina
Second Circuit: Weiland v. Lynch
Immigration
Per curiam -- given recent S.Ct. U.S. holding, interstate commerce element of the federal law is not considered when comparing a state statute to a federal statute to determine whether the state statute qualifies as an aggravated felony for Immigration purposes.
Weiland v. Lynch
First CIrcuit: US v. Bermudez-Melendez
Sentencing
Appeal waiver doesn't bar challenge where term in agreement was that sentence would be in accord with recommended sentence.
Where there is no guidelines range, statutory minimum is the range, and variances must be justified.
Court had no duty to explain variance prom plea deal level -- general description of facts sufficed to explain upward variance. Sufficient consideration of personal history.
Rhetorical flourishes are permissible during imposition of sentence.
Community-protection rhetoric in imposition of sentence is permissible when framed as an aspect of general deterrence.
Substantively reasonable.
US v. Bermudez-Melendez
First Circuit: Paret-Ruiz v. US
Forfeiture, Takings
The statutory remedy is the sole remedy for challenging a civil forfeiture, even when the underlying criminal case doesn't result in conviction. Waiver of that process waives FTCA remedy.
Court of Claim is sole venue for a Constitutional claim based in the taking -- amount in question here prevents court from having jurisdiction.
No clear error in denial of malicious prosecution clam, as evidence in record supports fact-finder's determination that one of the agents believed the deft to be guilty/
Paret-Ruiz v. US
The statutory remedy is the sole remedy for challenging a civil forfeiture, even when the underlying criminal case doesn't result in conviction. Waiver of that process waives FTCA remedy.
Court of Claim is sole venue for a Constitutional claim based in the taking -- amount in question here prevents court from having jurisdiction.
No clear error in denial of malicious prosecution clam, as evidence in record supports fact-finder's determination that one of the agents believed the deft to be guilty/
Paret-Ruiz v. US
DC Circuit: National Fed. of the Blind v. DOT
Administrative
Specific statutory right of action against agency displaces APA review -- the challenge should have been filed with the court of appeals.
Confusion over venue was not sufficient reasonable cause to waive the filing date requirement.
National Fed. of the Blind v. DOT
DC Circuit: Florent Bayala v. DHS
FOIA
Withholding of single document means FOIA claim is not moot - plaintiff's averment that the document is no longer being sought means that administrative exhaustion is moot, though.
As administrative exhaustion is not jurisdictional, remand to consider whether gov't litigation strategy comports with statute.
Florent Bayala v. DHS
DC Circuit: Sierra Club, et al v. FERC
Standing, Environment
Member living under a mile away gives associational standing to challenge increased constuction and output at natural gas port, given construction plans.
Environmental analysis was a substantial part of the export strategy, so not moot.
Intervening causation defeats challenge to export strategy by challenging port expansion.
Foreseeable and proximte effects on national markets required for cumulative analysis.
Shift in metrics not raised in agency proceedings
Sierra Club, et al v. FERC
Member living under a mile away gives associational standing to challenge increased constuction and output at natural gas port, given construction plans.
Environmental analysis was a substantial part of the export strategy, so not moot.
Intervening causation defeats challenge to export strategy by challenging port expansion.
Foreseeable and proximte effects on national markets required for cumulative analysis.
Shift in metrics not raised in agency proceedings
Sierra Club, et al v. FERC
DC Circuit: Sierra Club v. FERC
Standing, Environment
Organization meets causation and redressibility requirements for associational standing in challenge to an increase in natural gas production levels due to member who fishes in the area, given the presumptive increase in tanker traffic.
On merits, claim that increasing production at this port will lead to exports, causing domestic harms is flawed, because it relies on an intervening act - a decision to increase exports.
Agency hard look did not have to take a hard look at other projects occurring outside the jurisdiction which might have had a cumulative effect.
Sierra Club v. FERC
Organization meets causation and redressibility requirements for associational standing in challenge to an increase in natural gas production levels due to member who fishes in the area, given the presumptive increase in tanker traffic.
On merits, claim that increasing production at this port will lead to exports, causing domestic harms is flawed, because it relies on an intervening act - a decision to increase exports.
Agency hard look did not have to take a hard look at other projects occurring outside the jurisdiction which might have had a cumulative effect.
Sierra Club v. FERC
USA v. State of Washington
Treaties
Culvert construction, by diminishing the number of fish, violates fishing rights terms in treaties with tribes.
Abrogation of treaty rights requires legislation -- agency action doesn't constitute waiver.
State cannot compel FG to limit culvert construction, as it has no standing to assert treaty rights, and the action is barred by sovereign immunity.
Injunction not overbroad -- was a valid exercise of equitable discretion to order state to remedy rather than the FG through the state, since the state held title to the culverts.
USA v. State of Washington
Culvert construction, by diminishing the number of fish, violates fishing rights terms in treaties with tribes.
Abrogation of treaty rights requires legislation -- agency action doesn't constitute waiver.
State cannot compel FG to limit culvert construction, as it has no standing to assert treaty rights, and the action is barred by sovereign immunity.
Injunction not overbroad -- was a valid exercise of equitable discretion to order state to remedy rather than the FG through the state, since the state held title to the culverts.
USA v. State of Washington
Ninth Circuit: Lia Lingo v. City of Salem
Fourth Amendment, Exclusionary Rule, S 1983
Exclusionary rule does not apply in S1983 actions.
Scent of MJ gave probable cause for arrest, even if it came from a candle.
Lia Lingo v. City of Salem
Seventh Circuit: USA v. Leo Stoller
FRCrimP
Counsel's assurance of no custodial sentence was not sufficient basis to challenge voluntary nature of guilty plea.
No abuse of discretion in denial of competency hearing where deft's physician suggests that deft is exaggerating the symptoms of early dementia.
Insufficient coverage of required points during plea colloquy was harmless error.
USA v. Leo Stoller
Counsel's assurance of no custodial sentence was not sufficient basis to challenge voluntary nature of guilty plea.
No abuse of discretion in denial of competency hearing where deft's physician suggests that deft is exaggerating the symptoms of early dementia.
Insufficient coverage of required points during plea colloquy was harmless error.
USA v. Leo Stoller
Seventh Circuit: USA v. Jonathon Sainz
Sentencing
As restitution amount was substantively reasonable, it was not an abuse of discretion to omit certain elements of guidance in precedent.
Where the reason for the release conditions is plain, little or no explanation is needed. Modification to some terms to allow purchase of hamburgers, Internet access, etc.
USA v. Jonathon Sainz
Seventh Circuit: Panther Brands, LLC v. Indy Racing League, LLC
FRCP
The fact that National Guard administrative regulations are implicated is not a basis for federal jurisdiction.
As the delegate of the Guard exercised no independent rulemaking authority, no removal under Federal Officer.
Amendment of claim to remove US as party established that removal under federal scope of employment statute would be inappropriate.
Panther Brands, LLC v. Indy Racing League, LLC
The fact that National Guard administrative regulations are implicated is not a basis for federal jurisdiction.
As the delegate of the Guard exercised no independent rulemaking authority, no removal under Federal Officer.
Amendment of claim to remove US as party established that removal under federal scope of employment statute would be inappropriate.
Panther Brands, LLC v. Indy Racing League, LLC
Seventh Circuit: Kenneth Ogurek v. Jeffrey Gabor
Prisons
Claim of retaliation after letter to warden was a violation of First Amendment right to petition for redress of grievances.
Claim of innocence was sufficient showing to require production of videotape. Summary judgment in favor of the party who had earlier refused to produce the tape was error.
Kenneth Ogurek v. Jeffrey Gabor
Claim of retaliation after letter to warden was a violation of First Amendment right to petition for redress of grievances.
Claim of innocence was sufficient showing to require production of videotape. Summary judgment in favor of the party who had earlier refused to produce the tape was error.
Kenneth Ogurek v. Jeffrey Gabor
Seventh Circuit: James Baptist v. Ford Motor Company
Employment, FRCP
Genuine issue of material fact exists in state retaliatory-discharge claim where there is doubt as to the reason for the end of employment,
James Baptist v. Ford Motor Company
Genuine issue of material fact exists in state retaliatory-discharge claim where there is doubt as to the reason for the end of employment,
James Baptist v. Ford Motor Company
Seventh Circuit: USA v. Dante Graf
FRCrimP
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Fifth Circuit: State of Texas v. EEOC, et al
Standing, Discrimination, Administrative
State has Article III standing to challenge EEOC employment guidance, as it would have to either change its hiring policies or incur costs.
Since the agency, although it has no enforcement authority, can make policy changes that cause injuries sufficient for Article III harms, lack of enforcement power is not a per se bar to the action being sufficiently final under the APA.
Safe harbors and definitions for key terms speak to finality.
An agency can alter rights without issuing guidance that courts are legally bound to defer to.
Dissent. Nope, and not ripe, either.
State of Texas v. EEOC, et al
State has Article III standing to challenge EEOC employment guidance, as it would have to either change its hiring policies or incur costs.
Since the agency, although it has no enforcement authority, can make policy changes that cause injuries sufficient for Article III harms, lack of enforcement power is not a per se bar to the action being sufficiently final under the APA.
Safe harbors and definitions for key terms speak to finality.
An agency can alter rights without issuing guidance that courts are legally bound to defer to.
Dissent. Nope, and not ripe, either.
State of Texas v. EEOC, et al
Third Circuit: In Re: Nickleodeon Consumer Pr
Standing, ECPA, Preemption, Torts
Disclosure of online user data sufficiently particular & concrete for Article III standing.
One-party consent under the wiretap act & corresponding state statute has no implicit age restriction.
PCs are not protected computing facilities under SCA
.
State statute requires something beyond access to data - must establish use.
Search engine not covered by video privacy statute; that statute requires something more than an identifying number, since an observer must be able to associate a person with specific content. This holding cannot be reduced to a single sentence.
As claim derives from the expectation of privacy on the website, state intrusion on privacy tort not preempted by federal data statute.
Third party cookies on site don't present a cause of action under the tort, but standard tracking might, if duplicitous.
In Re: Nickleodeon Consumer Pr
First Circuit: Universal Truck & Equipment Co v. Caterpillar, Inc.
FRCP
Where a plaintiff fraudulently joins a deft to defeat diversity, the clock for deft to remove over the fraudulent joinder runs from first service. Here though, the plaintiff waived challenge to the lack of timely removal by not contesting the untimeliness of the theory of removal while contesting the removal itself. The post-deadline removal was in the jurisdiction of the court. Law of the case holding that the removal was ultimately timely prevails.
Summary approval of summary judgment.
Universal Truck & Equipment Co v. Caterpillar, Inc.
Where a plaintiff fraudulently joins a deft to defeat diversity, the clock for deft to remove over the fraudulent joinder runs from first service. Here though, the plaintiff waived challenge to the lack of timely removal by not contesting the untimeliness of the theory of removal while contesting the removal itself. The post-deadline removal was in the jurisdiction of the court. Law of the case holding that the removal was ultimately timely prevails.
Summary approval of summary judgment.
Universal Truck & Equipment Co v. Caterpillar, Inc.
First Circuit: Velez-Ramirez v. Commonwealth of Puerto Rico
ADA
Denial of reasonable accommodation is neither an actual nor a constructive discharge for purposes of the Act.
Automatically generated notification via company intranet sufficed for notice, despite actual notice that employee was not in the office.
Velez-Ramirez v. Commonwealth of Puerto Rico
Denial of reasonable accommodation is neither an actual nor a constructive discharge for purposes of the Act.
Automatically generated notification via company intranet sufficed for notice, despite actual notice that employee was not in the office.
Velez-Ramirez v. Commonwealth of Puerto Rico
First Circuit: US v. Hunter
Sentencing
No error in denying sentencing adjustment for acceptance of responsibility where a deft who later pleaded guilty took affirmative steps to cover up the crime and later made no showing to the contrary.
In assessing criminal history for purposes of sentencing, offenses without an intervening arrest are to be counted together only if imposed on the same day or contained in the same charging instrument.
Within guidelines sentence not substantively unreasonable.
US v. Hunter
Federal Circuit: BASCOM GLOBAL INTERNET v. AT&T MOBILITY LLC
Patent
(Which, we say again, we really don't know all that well. Rely on nothing on this website.)
Although each element of the process may be individually untenable, an ordered combination of claim limitations, considered holistically, might state a claim to be considered a single practical, particular application of the idea.
C in J: Bifurcation of eligibility/patentability is problematic.
BASCOM GLOBAL INTERNET v. AT&T MOBILITY LLC
Federal Circuit: OAKVILLE HILLS CELLAR, INC v. GEORGALLIS HOLDINGS, LLC
Trademark
Similarly spelled unfamiliar marks are sufficiently different.
OAKVILLE HILLS CELLAR, INC v. GEORGALLIS HOLDINGS, LLC
Eighth Circuit: United States v. Adrian Lomas
Crim, FRE, Sentencing
Admission of evidence that deft threw away a gun before the robbery not an abuse of discretion, as it established a knowledge of firearms.
Police evidence that they were in the area because of shots fired at a school was insufficiently prejudicial to justify a new trial.
Other hearsay, vouching challenges.
Sentencing.
United States v. Adrian Lomas
Eighth Circuit: Madonna Massey-Diez v. U of IA Community Medical etc
FMLA
Plaintiff's stated willingness to find ways to work while incapacitated meant that repeated tasks requested by employer during leave time were not contrary to the statute.
No discrimination in nonrenewal of contract, since comparator was in a rural area with different methodologies, and there was insufficient direct proof of discrimination.
Madonna Massey-Diez v. U of IA Community Medical etc
Eighth Circuit: Paul Ngugi v. Loretta E. Lynch
Immigration
Denial of withholding of removal under CAT upheld, as resistence to an armed gang is not a recognizabel social group; apparently contrary precedent since decision merely meant that the group didn't have to be oculary visible.
Paul Ngugi v. Loretta E. Lynch
Eighth Circuit: The Finley Hospital v. NLRB
Labor
Provision in CBA requiring a 3% raise on the anniversary of employment was not a bargained-for term that becomes part of the status quo after the end of the agreement; since each worker only received one raise, it could be considered a one-time benefit.
Dissent: One-time nature is an affirmative defense that should be considered when deciding if the union waived continuance of the term, and here, the union didn't waive the continuance of the term.
The Finley Hospital v. NLRB
Provision in CBA requiring a 3% raise on the anniversary of employment was not a bargained-for term that becomes part of the status quo after the end of the agreement; since each worker only received one raise, it could be considered a one-time benefit.
Dissent: One-time nature is an affirmative defense that should be considered when deciding if the union waived continuance of the term, and here, the union didn't waive the continuance of the term.
The Finley Hospital v. NLRB
Eighth Circuit: United States v. Alexander Faulkner
Fourth Amendment, ACCA, Confrontation Clause
Affidavit statement that tipster was reliable sufficed for credibility.
Placement of GPS on car in county outside the scope of the search warrant was a violation of state law, but not one that rises to the level of suppression.
Reputation of deft as drug dealer sufficed for warrant for home.
No confrontation clause in inability to question tipster, as there was no contact with case after the affidavit.
Possession with intent and conspiracy with intent correctly counted as two predicates under ACCA.
United States v. Alexander Faulkner
Eighth Circuit: United States v. Garron Gonzalez
FRE
Where the deft agrees to the admission of a recording at trial with the proviso that it be heard in full if requested by the jury during deliberations, no abuse of discretion in allowing the jury to hear it then, even if the tape had not been played in trial.
Substantial evidence.
United States v. Garron Gonzalez
Eigth Circuit: United States v. Christopher Strong, Sr.
FRE
Preliminary hearings sufficed for procedural reasonable balancing in weighing evidence of prior bad acts under 403/413. Severing counts unrelated to 413 was a sufficient remedy.
Exclusion of expert testimony to refute claim that deft pushed victim into path of car was proper, as the incident was primarily proffered to establish that she had been hit by the car.
Where two crimes are specifically barred from being simultaneously charged as they are similar enough to be considered "double counting," an enhancement based on one can be applied with relation to a third crime.
United States v. Christopher Strong, Sr.
Eighth Circuit: United States v. Yoirlan Rojas
FRE
Agent's testimony establishing elements of crime was harmless error, given that elements were established, and that the intent element could be inferred from the patterns of activity.
Fraudulent credit cards suppressed prior to trial were properly introduced to rebut deft's contention that he was unfamiliar with the distinction between credit cards and gift cards.
United States v. Yoirlan Rojas
Seventh Circuit: Venita Miller v. GreenLeaf Orthopedic Associate
FRE
No abuse of discretion in denial of impeachment on cross & rebuttal when impeachment has been accomplished in prior appearance on the stand.
No abuse of discretion in exclusion of diary as present sense impression, as there's no indication that it was a present sense impression.
No abuse of discretion in limited admission to rebut fabrication, given trial judge's understanding of the theories of the case.
Venita Miller v. GreenLeaf Orthopedic Associate
Seventh Circuit: Nationwide Advantage Mortgage v. GSF Mortgage Corporation
Contracts, Posner
Where one party to a contract initiates a relationship with a stranger to the contract based on the contractual relationship between to the two parties and unknowingly incurs costs for the counter-party in doing so, the counterparty does not have a claim for unjust enrichment.
Nationwide Advantage Mortgage v. GSF Mortgage Corporation
Seventh Circuit: Marcos Gray v. Marcus Hardy
Prisons
Although individual claims of infestation are insufficient to present a genuine issue of fact, the claim must be assessed holistically.
Harms of infestation present an issue for the finder of fact. (1984 quote.)
Knowledge of conditions can be imputed to incoming warden (caption not changed).
Marcos Gray v. Marcus Hardy
Although individual claims of infestation are insufficient to present a genuine issue of fact, the claim must be assessed holistically.
Harms of infestation present an issue for the finder of fact. (1984 quote.)
Knowledge of conditions can be imputed to incoming warden (caption not changed).
Marcos Gray v. Marcus Hardy
Seventh Circuit: Board of Trustees of the Autom v. Full Circle Group, Inc.
Posner, Successor liability
Where a sophisticated buyer acquires a company and there is a genuine issue of continuity of business, the hypothetical nature of a funded pension liability exit payment at the time of acquisition is not sufficient for summary judgment for lack of liability.
Alter ego liability requires fraud. Probably.
Board of Trustees of the Autom v. Full Circle Group, Inc.
Where a sophisticated buyer acquires a company and there is a genuine issue of continuity of business, the hypothetical nature of a funded pension liability exit payment at the time of acquisition is not sufficient for summary judgment for lack of liability.
Alter ego liability requires fraud. Probably.
Board of Trustees of the Autom v. Full Circle Group, Inc.
Seventh Circuit: John Otrompke v. Bradley Skolnik
Posner, Free Speech, Standing
Candidate for admission to the state Bar has no standing to preemptively challenge a an allegedly unconstitutional provision of the rules, since the Bar might decide not to unconstitutionally enforce it.
John Otrompke v. Bradley Skolnik
Seventh Circuit: Jaded Martinez v. Peter Cahue
Hague Act
Where a parent potentially has rights under state law, but the former spouse's removal of the child to a foreign country was lawful, the emigrating parent may invoke the foreign statute's mandate that the child be returned there after temporarily returning to the state.
Jaded Martinez v. Peter Cahue
Sixth Circuit: USA v. Ricky Brown
Fourth Amendment
Canine alert on a car and a general reputation of the suspect are insufficient basis for a warrant for the home.
Where the affidavit advances no relevant facts with respect to the residence, the good faith exception is precluded.
USA v. Ricky Brown
Sixth Circuit: USA v. Ralph Dennis
ERISA
Health care providers have no direct standing under the Act.
Assignment of the right to payment is sufficient to guarantee derivative standing under the Act.
Where a provider and an insurer have a post-reimbursement recoupment agreement and reversal of payment is not subsequently passed back to the customer, a provider's claim that the insurer has recouped covered costs doesn't state a claim under the Act, since the insured customer is not affected by the question.
Circuit split hinted at.
USA v. Ralph Dennis
Third Circuit: USA v. Ralph Dennis
Entrapment
Although the government's actions considered individually would not justify the entrapment instruction, where the investigation goes beyond providing the simple menas for committing the crime, their actions should be considered cumulatively.
Past narcotics convictions can establish separate predisposition for those counts.
OUtrageous prosecution requires conduct substantially beyond entrapment.
USA v. Ralph Dennis
Second Circuit: MPC Franchise, LLC v. Tarntino
Trademarks
The requisite level for scienter under the Lanham Act for fraudulent patent applications is actual knowledge of a competitor's use of the mark.
MPC Franchise, LLC v. Tarntino
The requisite level for scienter under the Lanham Act for fraudulent patent applications is actual knowledge of a competitor's use of the mark.
MPC Franchise, LLC v. Tarntino
Federal Circuit: Per Aarsleff A/S v. US
[Opinion issued under seal. Redacted version to follow.]
Per Aarsleff A/S v. US
Per Aarsleff A/S v. US
DC Circuit: Carlos Alexander v. WMATA
Discrimination
In considering, for purposes of the statute, whether someone is disabled, courts must also consider whether the employer regarded the person as either having that disability or having a record of that disability.
Under the statute, discretionary administrative exhaustion tolls the borrowed statute of limitations.
Carlos Alexander v. WMATA
In considering, for purposes of the statute, whether someone is disabled, courts must also consider whether the employer regarded the person as either having that disability or having a record of that disability.
Under the statute, discretionary administrative exhaustion tolls the borrowed statute of limitations.
Carlos Alexander v. WMATA
DC Circuit: Jeffrey Swaters v. DOT
Administrative
Agency refusal to release specimen from drug test is consistent with regulations, and neither the denial nor the regulation are arbitrary/capricious, given policy objectives.
No constitutional error from denial of discovery.
Jeffrey Swaters v. DOT
DC Circuit: Chris Stovic v. RRRB
Railroads retirement
Act gives courts APA jurisdiction over denials of requests to reopen.
Denial on merits here.
Chris Stovic v. RRRB
DC Circuit: USA v. Juan Vega
Crim
Stream of commerce suffices for circumstantial evidence that deft intended cocaine to reach US.
Sufficient instruction on mens rea.
Urging in closing that jury serve as community conscience and use of first person singular was harmless error, given strength of case.
False testimony not later corrected by govt was not dispositive.
Not issuing missing evidence instruction on lack of govt records on out of court photo lineups was harmless error.
No Brady violation on late-disclosed photo with attribution problems.
No error in refusal to admit notes frm quesitoning as prior inconsistent statement.
Error in manager/supervisor sentencing bump, as no showing that employees knew they were doing something illegal.
No error in admission of mistaken identification, given curative instruction.
Deft claim that Title III has no extraterritorial application, even if true, would not preclude extraterritorial wiretapping.
No error in denial of cross on why cooperating witnesses were wearing electronic monitoring devices.
Drug making video not overly prejudicial.
USA v. Juan Vega
Ninth Circuit: MK Hillside Partners v. CIR
Tax, Estoppel
Provision in statute giving tax court authority to consider a relevant statute of limitations for individual members of a partnership empowers the court to rule that the statute of limitations has not run at the partnership level.
No judicial estoppel, as the positions aren't inconsistent.
MK Hillside Partners v. CIR
Ninth Circuit: USA v. Steven Grovo
Crim, Conspiracy
Given the general mens rea of conspiracy, asynchronous contact on computer bulletin board suffices for actions "in concert" as required by the statute.
Active participation on a bulletin board suffices to prove furtherance of the board's common goal.
Communication with a closed community can constitute advertisement.
Where victim was harmed by both image and subsequent viewing of image, restitution must be disaggregated.
USA v. Steven Grovo
Given the general mens rea of conspiracy, asynchronous contact on computer bulletin board suffices for actions "in concert" as required by the statute.
Active participation on a bulletin board suffices to prove furtherance of the board's common goal.
Communication with a closed community can constitute advertisement.
Where victim was harmed by both image and subsequent viewing of image, restitution must be disaggregated.
USA v. Steven Grovo
Eighth Circuit: United States v. Yousef Qattoum
Crim.
No abuse of discretion in denial of motion to withdraw plea of guilty, as the deft was likely aware of illegal nature of conduct since he had, among other things, been arrested for it previously.
Use of money orders created a tacit understanding of conspiracy to launder money sufficient that there was no plain error in denial of motion to withdraw guilty plea.
United States v. Yousef Qattoum
Eighth Circuit: Bonnie Dick v. Dickinson State University
Torts.
State statute of limitations appropriately borrowed.
A claim alleging a denial of reasonable accommodation is a discrete instance, one that does not require a comprehensive review of the history.
Insufficient factual basis for adverse employment action claim.
Evidence outside of the statute of limitations period does not create a genuine issue of material fact for purposes of summary judgment.
Bonnie Dick v. Dickinson State University
Seventh Circuit: ACF 2006 Corp v. Timothy Devereux
Easterbrook, Contract, Fees
Quantum meruit adjustment to factual findings at trial.
Funds held in a non interest bearing (IOLTA) account are not subject to prejudgment interest. (Possibly. Confusing.)
Victims of lawyer's taking of client funds while practicing in an LLC have a priority claim over a later-erfected secured interest.
ACF 2006 Corp v. Timothy Devereux
Quantum meruit adjustment to factual findings at trial.
Funds held in a non interest bearing (IOLTA) account are not subject to prejudgment interest. (Possibly. Confusing.)
Victims of lawyer's taking of client funds while practicing in an LLC have a priority claim over a later-erfected secured interest.
ACF 2006 Corp v. Timothy Devereux
Seventh Circuit: John H. Germeraad v. Myrick J. Powers
Bankruptcy, FRCP, Mootness
A denial of a trustee's motion to modify is analogous to a 12(b)6 dismissal, and is therefore sufficiently final for appeal when not attributable to a technical defect.
Just as 60(b) motion might be filed again with a different theory, the fact that the trustee might file several motions does not affect their finality for purposes of review.
As the proposed change would relate back to the filing date of the motion, the expiration of the plan's timeframe doesn't make the controversy moot. The fact that denial of discharge is an equitable decision does not affect mootness.
So long as the motion to modify the plan is filed during the pendency of the plan, it is timely.
Although nothing in the Code authorizes a postconfirmation modification to account for increased income, the decision is an equitable one suggested by the purposes of the Code, and is not subjet to any "good faith" requirement.
John H. Germeraad v. Myrick J. Powers
Sixth Circuit: Gianni-Paolo Ferrari v. Ford Motor Company
Discrimination
As safe employment could be found at the plant, iatrogenic opiod use did not impede the major life activity of working.
No genuine issue of material fact as to whether medical restrictions were pretextual, as the medical evidence is corraborated, and there is no proof that the decisionmakers had reason to doubt the medical opinion.
Insufficient causation for FMLA retaliation claim.
Gianni-Paolo Ferrari v. Ford Motor Company
Fifth Circuit: USA v. Derrick Wheaten
AEDPA, Habeas
Untimely Certiorari petition filed with Supreme Court that is denied without sign that the lateness has been excused does not reset the statutory deadline for filing a subsequent Habeas petition. Circuit footnote suggesting otherwise dicta.
Missed deadline by counsel in direct review did not constitute abandonment, as petitioner was timely notified of the late filing and sent a Habeas pamphlet.
Incorrect telephone guidance by Supreme Court clerk didn't cancel the fact that petitioner was on notice of the deadline.
USA v. Derrick Wheaten
Untimely Certiorari petition filed with Supreme Court that is denied without sign that the lateness has been excused does not reset the statutory deadline for filing a subsequent Habeas petition. Circuit footnote suggesting otherwise dicta.
Missed deadline by counsel in direct review did not constitute abandonment, as petitioner was timely notified of the late filing and sent a Habeas pamphlet.
Incorrect telephone guidance by Supreme Court clerk didn't cancel the fact that petitioner was on notice of the deadline.
USA v. Derrick Wheaten
Fifth Circuit: Keith Harris v. Texas Veterans Commission, et al
Equal Protection, Right to Travel
State statute offering tuition benefits for past military service so long as the student enlisted or was inducted while in the state or a resident in the state has a rational basis, as it encourages positive behavior (enlisting, graduating high school) and keeps other residents of the state from being conscripted.
Right to travel is not implicated, as it imposes no penalty on entrants to the state. Had it been implicated, portability of of benefit and gratuitous nature of entitlement would suffice for review.
Keith Harris v. Texas Veterans Commission, et al
State statute offering tuition benefits for past military service so long as the student enlisted or was inducted while in the state or a resident in the state has a rational basis, as it encourages positive behavior (enlisting, graduating high school) and keeps other residents of the state from being conscripted.
Right to travel is not implicated, as it imposes no penalty on entrants to the state. Had it been implicated, portability of of benefit and gratuitous nature of entitlement would suffice for review.
Keith Harris v. Texas Veterans Commission, et al
Fifth Circuit: Carlos Gonzalez v. Able Huerta
S1983, Fourth Amendment
Although the investigative detention was made without reasonable suspicion, reasonable suspicion is too general a principle to be clearly established for purposes of review under S1983. As there was no caselaw holding that a refusal to produce identification on school grounds was not grounds for reasonable suspicion, grant of immunity was proper.
Dissent: specificity refers to the law, not to the factual situation.
Carlos Gonzalez v. Able Huerta
Fifth Circuit: Ronald Heggemeier v. Caldwell County, Texas, et al
Discrimination
As a similarly situated comparator was also terminated and the variance in the comparator's severance can be explained by differences in their situations, no Title VII racial discrimination claim.
No ADEA retaliation, as termination occurred 21 months after initial complaint, with a lateral transfer interposed.
State statute limiting reduction in pay does not place a restriction on at-will nature of employment sufficient for a property interest in continued employment. Conceding at-will employment relative to one supervisor ends the property interest generally.
Statute allowing appointment to state office by elected official does not prevent another arm of the government from terminating the employment.
No abuse of discretion in district court's refusal to exercise ancillary jurisdiction over whistleblower claims.
Ronald Heggemeier v. Caldwell County, Texas, et al
As a similarly situated comparator was also terminated and the variance in the comparator's severance can be explained by differences in their situations, no Title VII racial discrimination claim.
No ADEA retaliation, as termination occurred 21 months after initial complaint, with a lateral transfer interposed.
State statute limiting reduction in pay does not place a restriction on at-will nature of employment sufficient for a property interest in continued employment. Conceding at-will employment relative to one supervisor ends the property interest generally.
Statute allowing appointment to state office by elected official does not prevent another arm of the government from terminating the employment.
No abuse of discretion in district court's refusal to exercise ancillary jurisdiction over whistleblower claims.
Ronald Heggemeier v. Caldwell County, Texas, et al
Third Circuit: Omar Frias-Camilo v. Attorney General United States
Immigration, FRCrimP, Statutory Construction
As the Immigration statute regards convictions as having an adjudication and a punishment, and circuit precedent regards the linking "and" as conjunctive, the FRCrimP standard of conviction cannot be used to interpret the Act. Rather, state actions which incorporate either finding of guilt or punishment can qualify.
Omar Frias-Camilo v. Attorney General United States
Third Circuit: Aguedita Ordonez Tevalan v. Attorney General United States
Immigration
Where a petitioner has filed an appeal with the court, the court is not divested of jurisdiction by the agency's granting of a motion to repoen the matter, particularly where the reopening of the case is for ministerial reissuing of orders and decisions.
Where there is objective evidence of inconsistent statements in the record, there is sufficient evidence for an agency's adverse credibility decision.
Insufficient grounds for protection under CAT.
Aguedita Ordonez Tevalan v. Attorney General United States
Where a petitioner has filed an appeal with the court, the court is not divested of jurisdiction by the agency's granting of a motion to repoen the matter, particularly where the reopening of the case is for ministerial reissuing of orders and decisions.
Where there is objective evidence of inconsistent statements in the record, there is sufficient evidence for an agency's adverse credibility decision.
Insufficient grounds for protection under CAT.
Aguedita Ordonez Tevalan v. Attorney General United States
Third Circuit: Jose Bedolla Avila v. Attorney General United States
Sentencing, Immigration
As the state statute proscribing possession with intent to deliver is analogous to the similar federal statute which has no minimum possession, under modified categorical analysis, the state conviction here is an aggravated felony for sentencing purposes.
Simultaneous removal proceedings by DHS and INS do not offend regulations or Due Process, as there is no direct proscription in the regulations and there was no showing that the simultaneity of the proceedings harmed the petitioner's attempt to present his case.
Jose Bedolla Avila v. Attorney General United States
Second Circuit: Leeward Construction Co. v. American University of Antigua
Arbitration
Where arbitrator commits in initial proceedings to issue a reasoned award, a reasoned award is required.
While an arbitrator's reasoned award need not delve into every argument raised or provide a line-by-line justification for the award, it must set forth relevant facts and factual findings.
Arguing for the original profit margins on the deal is at least a barely colorable justification for the award of same based on bad faith, which is all that is required.
Leeward Construction Co. v. American University of Antigua
Where arbitrator commits in initial proceedings to issue a reasoned award, a reasoned award is required.
While an arbitrator's reasoned award need not delve into every argument raised or provide a line-by-line justification for the award, it must set forth relevant facts and factual findings.
Arguing for the original profit margins on the deal is at least a barely colorable justification for the award of same based on bad faith, which is all that is required.
Leeward Construction Co. v. American University of Antigua
Second Circuit: Smith v. Wenderlich
Double Jeopardy, Sentencing, Habeas
Where a prison term is increased due to offenses committed in prison, the completion of the portion attributable to the initial sentence does not finalize the sentence for purposes of double jeopardy, and a subsequent resentencing to incorporate supervised release is therefore neither contrary to nor an unreasonable application of federal constitutional law.
Smith v. Wenderlich
Federal Circuit: DE SANTIS v. MSPB
Administrative, Employment
Where statute restores a class of appeals according to the law before the class of appeals was revoked, in determining eligibility for the appeal, courts should use the present scheme of employment, as modified by regulations, in combination with the law of the earlier period. A position that had the right of appeal before the change does not therefore have the right of appeal after the change, as it might have been modified by regulations.
DE SANTIS v. MSPB
Where statute restores a class of appeals according to the law before the class of appeals was revoked, in determining eligibility for the appeal, courts should use the present scheme of employment, as modified by regulations, in combination with the law of the earlier period. A position that had the right of appeal before the change does not therefore have the right of appeal after the change, as it might have been modified by regulations.
DE SANTIS v. MSPB
Federal Circuit: ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP
Patent, Dissent from denial of en banc
(Reminder: We don't know many things, but we especially don't know Patent. Entertainment purposes only, as always.)
Using the merits panel to screen patent challenges is contrary to statute, and risks prejudgement.
ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP [ORDER RE EN BANC PETITION]]
(Reminder: We don't know many things, but we especially don't know Patent. Entertainment purposes only, as always.)
Using the merits panel to screen patent challenges is contrary to statute, and risks prejudgement.
ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP [ORDER RE EN BANC PETITION]]
Tenth Circuit: Cropper v. CIR
Tax, Administraive
Although an irregularity in the postal forms prevented a presumption of receipt upon mailing, an agency appeal holding that the totality of the evidence indicated mailing was not an abuse of discretion, and since the statute imposes an affirmative duty on the recipient to challenge the mailing, the loss of the presumption of receipt does not prevent the levy.
Cropper v. CIR
Although an irregularity in the postal forms prevented a presumption of receipt upon mailing, an agency appeal holding that the totality of the evidence indicated mailing was not an abuse of discretion, and since the statute imposes an affirmative duty on the recipient to challenge the mailing, the loss of the presumption of receipt does not prevent the levy.
Cropper v. CIR
Ninth Circuit: SELSO ORONA V. USA
Statute of Limitations, Habeas, AEDPA
The statutory one-year filing deadline for second or successive Habeas applications based on claims made retroactive to cases on collateral review is tolled by filing an application in the court of appeals to proceed with the writ, so long as the application states the claim at issue.
SELSO ORONA V. USA
Ninth Circuit: USA V. JORGE CISNEROS
ACCA residual clause
As the state Burglary statute encompasses structures that are not included in the generic federal definition of burglary, sentencing enhancements under the federal statute cannot be applied.
[cf. S. Ct. U.S. this AM.]
USA V. JORGE CISNEROS
Ninth Circuit: CARLOS BAQUERIZO V. GARDEN GROVE UNIFIED SCH DIST
IDEA
As the procedural violations of the act were caused in part by the programs retained by the plaintiff and do not rise to the level that would deny a free appropriate public education, no reimbursement required under the act.
CARLOS BAQUERIZO V. GARDEN GROVE UNIFIED SCH DIST
Seventh Circuit: Rashaad Imani v. William Pollard
Sixth Amendment, Habeas, AEDPA
In colloquy with a deft who has requested to proceed without counsel, the duty of inquiry rests with the judge, and cannot be converted to an affirmative burden on the deft to prove capacity.
Where an articulate deft is without illness or impairment,deft is likely outside of the narrow range of cases precluded from self-representation.
Denial of request made weeks before trial on scheduling grounds is constitutional error.
Rashaad Imani v. William Pollard
Seventh Circuit: Carlos G. Rocha v. J. Gordon Rudd, Jr.
FRCP, Legal malpractice, Fraud
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Seventh Circuit: Nancy Thomas v. Carolyn Colvin
Administrative, SSA
Although the opinon of a specialist is preferred, a diagnosis in a specialist area is not per se inadmissible.
Uncritical acceptance of reviewing physicians' opinions on overall impairment where there is evidence to the contrary from the initial diagnosis does not suffice in review for substantial evidence.
Nancy Thomas v. Carolyn Colvin
Seventh Circuit: Women's Health Link, Incorporated v. Fort Wayne Public Transportation
Free Speech, Posner.
Where the government creates a facility for communicative activity, it is inappropriate to look beyond the four corners of the speech itself in determining whether the speech can be barred.
Bus ads -- with image and Hamlet quote.
Women's Health Link, Incorporated v. Fort Wayne Public Transportation
Where the government creates a facility for communicative activity, it is inappropriate to look beyond the four corners of the speech itself in determining whether the speech can be barred.
Bus ads -- with image and Hamlet quote.
Women's Health Link, Incorporated v. Fort Wayne Public Transportation
Fifth Circuit: Trevor Charles, et al v. Thomas Atkinson, et al
FRCP
Where a named deft does not make an appearance in a civil suit, an unreturned order of service -- absent finding of service or nonservice by the court -- bars direct appellate review under the statute, given the possibility of service.
Trevor Charles, et al v. Thomas Atkinson, et al
Fifth Circuit: USA v. Kevin Brown
Sentencing
Although the above-guidelines imposition of supervised release was incorrect and substantially violated the deft's rights, the deft's history and acceptance of the sentence at trial make the sentence incorrect but fair.
USA v. Kevin Brown
Second Circuit: Terry v. Inc. Vill. of Patchogue
FRCP
Pro se litigants must at least set forth identifiable arguments in pleadings.
Dismissal in state court for not stating a claim due to prolix and disjointed filing imposes a res judicata effect on the claim in a subsequent federal action.
No error in refusing leave to amend where the amendments were facially conclusory.
Terry v. Inc. Vill. of Patchogue
Tenth Circuit: United States v. Willis
FRE, Due Process, Miranda
No error in introduction of prior bad acts where the conduct was similar and spoke to the specific question in the present case.
Where tribal law required juvenile records to be expunged, and, contrary to that law, the records are later transmitted to another jurisdiction for use in a criminal case, there is no Due Process violation in the second forum.
Where deft invokes right to counsel, subsequent administrative questioning for 30 minutes does not preclude a subsequent immediate waiver of the right.
As deft could attack credibility of victim under the same theory in other ways, no error in exclusion of victim's history.
Where objection for vouching is unspecific, and deft elicits avouching of vouching on cross, review is for plain error.
Where only one harmless error is found on review, no cumulative error.
United States v. Willis
No error in introduction of prior bad acts where the conduct was similar and spoke to the specific question in the present case.
Where tribal law required juvenile records to be expunged, and, contrary to that law, the records are later transmitted to another jurisdiction for use in a criminal case, there is no Due Process violation in the second forum.
Where deft invokes right to counsel, subsequent administrative questioning for 30 minutes does not preclude a subsequent immediate waiver of the right.
As deft could attack credibility of victim under the same theory in other ways, no error in exclusion of victim's history.
Where objection for vouching is unspecific, and deft elicits avouching of vouching on cross, review is for plain error.
Where only one harmless error is found on review, no cumulative error.
United States v. Willis
Tenth Circuit: M.G. v. Young
S1983
State consent to a petition for relief from judgment is in itself insufficient indication of innocence to qualify as a termination favorable enough to justify a S1983 action for malicious prosecution.
M.G. v. Young
Ninth Circuit: Madeline Cardenas v. Loretta E. Lynch
Immigration, Due Process, Precedent
Narrowest concurrence controls on a plurality.
Where an immigration officer denies a visa, the rights of third party U.S. citizens are not harmed where there are discrete factual predicates found that correspond to a valid statute. Burden is on the petitioner to establish bad faith.
Assertion of racial prejudice and mistaken tattoo identification insufficient showing for bad faith.
Madeline Cardenas v. Loretta E. Lynch
Ninth Circuit: Idaho Conservation League v. BPA
Kozinski, Environment, Administrative Law
Agency dam management decision to revert to flexible winter water level does not require an environmental review under the statute, as the temporary shift to fixed-level didn't require one.
Idaho Conservation League v. BPA
Fifth Circuit: Sealed Appellee v. Sealed Appellant
Statutory Construction, Double Jeopardy
Where the statute proscribes transportation of somebody in order to do something, it suffices that the intent be an efficient and compelling reason for the transportation, not necessarily the exclusive intent.
Where the statute proscribes crossing a state line, international travel suffices, as there is a state boundary interposed.
Where one statute proscribes crossing a state line in order to do something, and another proscribes transporting someone internationally or across a state line in order to do the same thing, no double jeopardy.
Where PSR uncontrovertedly describes conduct without providing specifics, it is a fair basis for a sentencing enhancement.
Sealed Appellee v. Sealed Appellant
Fifth Circuit: Michael Norris v. Lorie Davis, Director
AEDPA, Habeas
Circuit precedent at the time of conviction clearly established the need for a general mitigation instruction where there was evidence of good character.
Fleeting reference to federal claim in state Habeas petition did not exhaust the claim.
A series of smaller federal claims can't be accumulated into a viable, freestanding one.
Sufficient evidence.
No Strickland error where deft's lawyer elicits fact of prior convictions, doesn't preserve objection to admission of deft's statement to police.
Michael Norris v. Lorie Davis, Director
Fourth Circuit; US v. Martin Barcenas-Yanez
Statutory construction
Mens rea element of state crime is not divisible, as jury need not agree on anything beyond the terms of the law. Modified categorical approach in caselaw of sister circuit does not compel the use of modified categorical approach in the present forum.
Circuit split flagged on the specific holding (Texas assault statute.)
US v. Martin Barcenas-Yanez
Mens rea element of state crime is not divisible, as jury need not agree on anything beyond the terms of the law. Modified categorical approach in caselaw of sister circuit does not compel the use of modified categorical approach in the present forum.
Circuit split flagged on the specific holding (Texas assault statute.)
US v. Martin Barcenas-Yanez
Fourth Circuit: In Re: Terrence Wright
Habeas, AEDPA
As the state prisoner Habeas statute is more specific than the general federal Habeas statute, petitions relating to the incarceration that do not challenge the underlying conviction arise under the state prisoner Habeas statute. Circuit split flagged.
Where the claim was available to the petitioner at the time of an earlier petition, pre-AEDPA abuse-of-writ principles justify denial of the writ.
In Re: Terrence Wright
As the state prisoner Habeas statute is more specific than the general federal Habeas statute, petitions relating to the incarceration that do not challenge the underlying conviction arise under the state prisoner Habeas statute. Circuit split flagged.
Where the claim was available to the petitioner at the time of an earlier petition, pre-AEDPA abuse-of-writ principles justify denial of the writ.
In Re: Terrence Wright
Fourth Circuit: Gerard Morrison v. County of Fairfax, VA
Employment, Administrative
The "blue collar" provision of the exceptions to the exceptions to the FLSA overtime statute does not imply a "blue collar" requirement to subsequent categories, such as emergency responders.
Auer deference to agency determination that the test for the "emergency responder" is one of the employee's primary duty.
Fire captains primarily fight fires. Exempt from exemption, and therefore covered.
Gerard Morrison v. County of Fairfax, VA
The "blue collar" provision of the exceptions to the exceptions to the FLSA overtime statute does not imply a "blue collar" requirement to subsequent categories, such as emergency responders.
Auer deference to agency determination that the test for the "emergency responder" is one of the employee's primary duty.
Fire captains primarily fight fires. Exempt from exemption, and therefore covered.
Gerard Morrison v. County of Fairfax, VA
First Circuit: Frangos v. Bank of America, N.A.
FRCP
Where a state court issues an injunction against a foreclosure without notice and the matter is subsequently removed to federal court, the case presents no genuine issue of material fact where the present foreclosure action has ceased and nominal damages have been waived.
Frangos v. Bank of America, N.A.
First Circuit: Sig Sauer, Inc. v. Brandon
Administrative law
Where the statute bans a device with only one intended use, an agency ruling that bans a device theoretically capable of multiple uses is not arbitrary and capricious where the manufacturer's intent can be reasonably determined.
Sig Sauer, Inc. v. Brandon
First Circuit: Lima v. Lynch
Immigration
Given jurisdiction-stripping provision o relevant law, court has no jurisdiction to review denial of withholding of removal where the agency relied on police reports ancillary to a subsequently vacated conviction. The challenge is a factual one, not a legal or constitutional one.
Lima v. Lynch
First Circuit: US v. Carrasquillo-Penaloza
Plea Deals
As Commerce Clause challenge to the statute does not present a jurisdictional issue, a plea agreement with a specific and written waiver of appeals bars the challenge on direct appeal.
US v. Carrasquillo-Penaloza
Federal Circuit: Immersion Corporation v. HTC Corporation
Patents, (FRCP)
Given longstanding agency practice, where the filing of a continuation application and the patenting of the device occur on the same day, the former is construed to precede the latter.
Immersion Corporation v. HTC Corporation
Given longstanding agency practice, where the filing of a continuation application and the patenting of the device occur on the same day, the former is construed to precede the latter.
Immersion Corporation v. HTC Corporation
DC Circuit: United States v. Philip Morris USA Inc.
FCA
Relator's FCA action barred due to prior disclosure of the general practice.
Court-ordered disclosures are sufficient to trigger the bar.
Ancillary contractual violations would have been discovered after the principal one was revealed.
Competitor's knowledge of practices was secondhand, as he had no affiliation with the deft.
United States v. Philip Morris USA Inc.
DC Circuit: Rene Lopez v. Council on American-Islamic
Agency, Tort
Given close interrelation between national advocacy organization and local chapter, genuine issue of material fact exists as to whether an actual agency relationship existed with respect to unlicensed legal practice.
Rene Lopez v. Council on American-Islamic
DC Circuit: Verizon New England Inc. v. NLRB
Labor law
As the arbitrator's order deprived the union of a right that was waiveable under the Act, and there was no palpable error, the Board should have upheld the arbitration ruling.
Verizon New England Inc. v. NLRB
As the arbitrator's order deprived the union of a right that was waiveable under the Act, and there was no palpable error, the Board should have upheld the arbitration ruling.
Verizon New England Inc. v. NLRB
DC Circuit: NLRB v. Southwest Regional Council
Labor Law
Board did not distinguish precedent to the contrary when holding that presence of management in the room during the signing of representation cards was an unfair labor practice.
NLRB v. Southwest Regional Council
Tenth Circuit: Mayfield v. Bethards
Animal Law, Fourth Amendment
Warrantless killing of pet dog was a seizure of property under the Fourth Amendment, qualified immunity denied.
Mayfield v. Bethards
Tenth Circuit: Pikk v. Pedersen
Corporations, Board Law
To state a claim, suit relying on futility exception must plead facts that establish that directors faced a substantial risk of liability under state statute.
Intentionality requirement implies knowledge of wrongfulness.
Lack of independence not proven
Pikk v. Pedersen
Tenth Circuit: United States v. Holloway
Ineffective Assistance, Fraud, Sentencing
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Eighth Circuit: United States v. Marvance Robinson
Sentencing, ACCA residual clause
Where the record does not establish whether deft was sentenced according to the use of generic predicate convictions or qualitatively specific ones, remand.
Where the record does not establish whether deft was sentenced according to the use of generic predicate convictions or qualitatively specific ones, remand.
United States v. Marvance Robinson
Eighth Circuit: Jerry Von Rohr v. Reliance Bank
Administrative
Deference to agency finding that a contract claim for one year of post-employment salary was barred by FDIC "golden parachute" law, as contrary precedent involved staturory, not contract, claims.
Auer deference to agency on scope not relevant, as agency cites Blacks Law Dictionary for disputed term. Plain meaning.
Deference to agency finding that a contract claim for one year of post-employment salary was barred by FDIC "golden parachute" law, as contrary precedent involved staturory, not contract, claims.
Auer deference to agency on scope not relevant, as agency cites Blacks Law Dictionary for disputed term. Plain meaning.
Jerry Von Rohr v. Reliance Bank
Eighth Circuit: Automated Matching Systems v. U.S. Securities and Exchange
Administrative, Securities
Chevron deference to agency finding that exercise of the powers traditionally associated with large-volume exchanges categorically precludes classification as an exchange exempt from the registration requirements.
Ancillary challenges to agency finding barred under APA.
Automated Matching Systems v. U.S. Securities and Exchange
Eighth Circuit: Jason Procknow v. Hugh Curry
FRE,
Admission of prior bad act - impersonating a peace officer - harmless error.
Conviction for attempted murder went to reasonableness of the use of force during arrest for parole violation.
Motion of hands toward body of prone plaintiff after two taserings made the application of a third tasering not unreasonable.
Admission of prior bad act - impersonating a peace officer - harmless error.
Conviction for attempted murder went to reasonableness of the use of force during arrest for parole violation.
Motion of hands toward body of prone plaintiff after two taserings made the application of a third tasering not unreasonable.
Jason Procknow v. Hugh Curry
Eighth Circuit: Richland/Wilkin Joint Powers v. Fargo-Moorhead Flood Diversion
Environment, FRCP
District Court injunction upheld, given procedural harms and risk to plaintiffs during the pendency of procedural review.
No error in determination that the project was part of a larger project.
Given the administrative and democratic aspects of the planning process the appropriate standard for merits was that the movant had a fair chance of ultimately prevailing.
Extraterritorial application of foreign state regulatory statute can be considered at the preliminary injunction stage, since the foreign state's interest (?) would be served by the use of the law.
Multistate nature means that Dormant Commerce Clause doesn't bar state statute.
Public interest allowed the injunction to issue without payment of a bond.
District Court injunction upheld, given procedural harms and risk to plaintiffs during the pendency of procedural review.
No error in determination that the project was part of a larger project.
Given the administrative and democratic aspects of the planning process the appropriate standard for merits was that the movant had a fair chance of ultimately prevailing.
Extraterritorial application of foreign state regulatory statute can be considered at the preliminary injunction stage, since the foreign state's interest (?) would be served by the use of the law.
Multistate nature means that Dormant Commerce Clause doesn't bar state statute.
Public interest allowed the injunction to issue without payment of a bond.
Richland/Wilkin Joint Powers v. Fargo-Moorhead Flood Diversion
Eighth Circuit: Raphael Donnell v. United States
AEDPA, Sentencing
Challenge to advisory sentencing guideline is merely suggested by Supreme Court holding on mandatory sentencing guideline, not compelled by it, so the petition is barred as second/successive.
Challenge to advisory sentencing guideline is merely suggested by Supreme Court holding on mandatory sentencing guideline, not compelled by it, so the petition is barred as second/successive.
Raphael Donnell v. United States
Eighth Circuit: Grand Juror Doe v. Robert McCulloch
FRCP
District court erred in dismissing grand juror's 1A challenge to confidentiality laws in order to allow for a state resolution of the claim, as the statutory scheme isn't that complex. Proper remedy is prudential stay.
District court erred in dismissing grand juror's 1A challenge to confidentiality laws in order to allow for a state resolution of the claim, as the statutory scheme isn't that complex. Proper remedy is prudential stay.
Grand Juror Doe v. Robert McCulloch
Eighth Circuit: Laquince Hogan v. Wendy Kelley
Ineffective Assistance, Fourth Amendment
Warrantless search of closed container not a basis for ineffective assistance habeas, given inevitable discovery.
Laquince Hogan v. Wendy Kelley
Seventh Circuit: USA v. Charles A. Evans
Sentencing
Sentencing bump for maintaining premises for drug distribution upheld, since use of the house by other people didn't foreclose the finding.
Obstruction sentencing bump not foreclosed by subsequent acceptance of responsibility in guilty plea.
USA v. Charles A. Evans
Seventh Circuit: Jacob Saathoff v. Andre Davis
FRCP, S1983, Animal Law
No abuse of discretion in denial of sanctions or new trial where trial testimony of officer varied substantially from interrogatory, given vagueness of questions and the chance to respond at trial.
Where a police officer is called to a dogfight and shoots a dog that might or might not have been n top at the time, the standard is reasonable use of force, not inevitability of use of force.
Sufficient evidence.
Jacob Saathoff v. Andre Davis
Seventh Circuit: Semir Sirazi v. General Mediterranean Holding
Posner, Money
Buyout where debtor had contrary contractual obligations amounted to tortious interference, and various other things, as the company was on notice of the contract obligations.
As forgiveness of other obligations that substantially reduced the buyout price was established to be proceeds of the transaction by expert accounting testimony, no error in the jury's counting it as such, despite the fact that it could not have been used to fulfill the contrary contractual obligation.
Unjust enrichment, conspiracy claims justified, given that there was unjust enrichment & conspiracy.
Under state law, refinancing a loan and assignment of the loan are identical with respect to a contract referencing the loan.
Award should have been reduced by funds awarded in bankruptcy.
Unjust enrichment award against individual upheld, given ownership of company that was enriched. Punitive damages inappropriate.
Semir Sirazi v. General Mediterranean Holding
Sixth Circuit: Adam Eggers v. Warden, Lebanon Corr. Inst.
Habeas, FRCrimP
State court holding that an assertion of innocence during sentencing allocution didn't require the court to conduct a hearing into the voluntary nature of the plea was not contrary to or an unreasonable application of Supreme Court precedent.
Adam Eggers v. Warden, Lebanon Corr. Inst.
State court holding that an assertion of innocence during sentencing allocution didn't require the court to conduct a hearing into the voluntary nature of the plea was not contrary to or an unreasonable application of Supreme Court precedent.
Adam Eggers v. Warden, Lebanon Corr. Inst.
Sixth Circuit: Cheryl Minor v. Comm'r of Social Security
Fees
Court's adoption of magistrate's lodestar fees calculation was insufficiently explained, as court adopted statutory cap contrary to state bar numbers and disputed amount of time spent.
Cheryl Minor v. Comm'r of Social Security
Court's adoption of magistrate's lodestar fees calculation was insufficiently explained, as court adopted statutory cap contrary to state bar numbers and disputed amount of time spent.
Cheryl Minor v. Comm'r of Social Security
Fifth Circuit: Jimmie Williams v. J.B. Hunt Transport, Inc.
ADA
Where the plaintiff's physician and the deft's physician disagree on whether the plaintiff is capable of doing the job courts may impose a prudential administrative exhaustion requirement to reconcile the physicians' opinions.
Jimmie Williams v. J.B. Hunt Transport, Inc.
Where the plaintiff's physician and the deft's physician disagree on whether the plaintiff is capable of doing the job courts may impose a prudential administrative exhaustion requirement to reconcile the physicians' opinions.
Jimmie Williams v. J.B. Hunt Transport, Inc.
Fifth Circuit: Jessie Grace, III v. Darrel Vannoy, Warden
FRCP
A stay of a federal Habeas petition to allow the petitioner to exhaust newly discovered claims in state court is not a collateral order subject to direct interlocutory appeal, as the issuance of the stay does not directly or indirectly moot the claims of either party.
Jessie Grace, III v. Darrel Vannoy, Warden
Fourth Circuit: Dora Beltran v. Brent Cardall
Habeas, Immigration
Where petitioner alleges detention in violation of Constitution and statutes, federal courts have subject matter jurisdiction over Habeas petition on behalf of alien minor -- not a prohibited review of administrative determinations.
Determination that a minor is an unaccompanied alien child for purposes of the statute is a fact-intensive question, agency determination prevails.
As the specific controls the general, a statute authorizing detention and barring release to parent found inappropriate must be construed to bar inappropriate release even after the pendency of authorized detention.
Administrative decision that release to parent is inappropriate satisfies substantive DP.
Where a parent is seeking custody of child, procedural due process implies more than substantive due process inquiry -- full notice, appeal & Matthews v. Eldrige balancing implied.
Dissent:
Error as a matter of law to say that the statute allows gov't to determine that minor is "unaccompanied" if parent determined to be inappropriate.
Dora Beltran v. Brent Cardall
Fourth Circuit: Robert Sarvis v. James Alcorn
Election Law
Commonwealth's ballot ordering scheme does not impede access to ballot or association rights--no heightened scrutiny, despite potential "windfall vote" from order on the page.
Commonwealth's interest in preserving symmetry, reducing voter confusion properly pleaded. Little burden on petitioner.
Question for the political branches.
Robert Sarvis v. James Alcorn
Commonwealth's ballot ordering scheme does not impede access to ballot or association rights--no heightened scrutiny, despite potential "windfall vote" from order on the page.
Commonwealth's interest in preserving symmetry, reducing voter confusion properly pleaded. Little burden on petitioner.
Question for the political branches.
Robert Sarvis v. James Alcorn
Fourth Circuit: In re: John McFadden
Habeas/AEDPA
Newly discovered evidence that deft lost out on a favorable plea offer is not grounds for a second/successive petition.
In re: John McFadden
Second Circuit: N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
Labor Law, Arbitration
When an employer organization has an agreement with an International union, and that agreement contradicts elements of the Local's court-supervised contract, an arbitration award allowing the employers to follow the agreement with the International is within socpe, entitled to deference, and does not violate public policy.
The arbitrator's finding does present a question of whether the court-approved Local contract was approved with insufficient information.
N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
When an employer organization has an agreement with an International union, and that agreement contradicts elements of the Local's court-supervised contract, an arbitration award allowing the employers to follow the agreement with the International is within socpe, entitled to deference, and does not violate public policy.
The arbitrator's finding does present a question of whether the court-approved Local contract was approved with insufficient information.
N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
Second Circuit: Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.
FISA
When a foreign bank that is an instrument of the foreign sovereign freezes an account acting while acting in its governmental/regulatory capacity, the commercial exception to FISA isn't a basis for jurisdiction.
Freezing of account didn't happen in US, didn't have sufficient direct effects in US.
Routine law-enforcement freezing of funds doesn't rise to the level of a taking without compensation in violation of international law.
Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.
Second Circuit: Austin v. Town of Farmington
FHA does not impose a per se bar to a municipal requirement that accommodations constructed contrary to code be removed after the disabled person no longer lives there.
Whether the removal requirement violates the FHA is a question of reasonableness for the court; can't be made from pleadings.
Retaliation claim under the FHA must plead and prove animus.
Austin v. Town of Farmington
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