Administrative law
Interstate council not subject to statutory or APA suit -- although inaction is "backstopped" by the Agency, the action and inaction of the council isn't actionable under Agency-based rights of action.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E0161B8D8499099885257F3100533D5A/$file/14-5304-1591775.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: Rosa and Raymond Parks Institute for Self Development v. Target Corporation
Court properly dismissed right of publicity claim under public interest exception.
http://media.ca11.uscourts.gov/opinions/pub/files/201510880.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201510880.pdf
Eleventh Circuit: USA v. Demarco Doxie
Sentencing
No error in court's declining to group tax counts with fraud counts for purposes of sentencing.
Typo at 9.
http://media.ca11.uscourts.gov/opinions/pub/files/201511161.pdf
No error in court's declining to group tax counts with fraud counts for purposes of sentencing.
Typo at 9.
http://media.ca11.uscourts.gov/opinions/pub/files/201511161.pdf
Tenth Circuit: Savant Homes v. Collins
Copyright - architecture
Summary judgment for deft upheld, as plaintiff did not establish uniqueness of architectural elements.
Not per se error for the court to use "abstraction & filtration" for architecture.
No error in dismissal of trade dress claims.
https://www.ca10.uscourts.gov/opinions/15/15-1115.pdf
Summary judgment for deft upheld, as plaintiff did not establish uniqueness of architectural elements.
Not per se error for the court to use "abstraction & filtration" for architecture.
No error in dismissal of trade dress claims.
https://www.ca10.uscourts.gov/opinions/15/15-1115.pdf
Ninth Circuit: Cuprite Mine Partners v. John Anderson
FRCP - mining,
Joinder appropriate in case of adjoining strip mines.
State partition statute does not require most profitable sale - only the timely sale.
State statute potentially requiring trial before partition is a procedural, not substantive requirement for Erie.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/31/13-16657.pdf
Joinder appropriate in case of adjoining strip mines.
State partition statute does not require most profitable sale - only the timely sale.
State statute potentially requiring trial before partition is a procedural, not substantive requirement for Erie.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/31/13-16657.pdf
Ninth Circuit: Richard Shirrod v. OWCP
Award of fees - Longshoreman's Act
Error to use statewide index as opposed to market-specific.
Error to include workmans comp numbers in the lodestar calculations.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/31/13-70613.pdf
Error to use statewide index as opposed to market-specific.
Error to include workmans comp numbers in the lodestar calculations.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/31/13-70613.pdf
Eighth Circuit: Elvin Castillo-Gutierrez v. Loretta E. Lynch
Immigration
No error in denial of asylum, as reasonable factfinder could think that petitioner could move elsewhere in the country, the ountry-specific evidence is vague, and there have been no recent murders.
http://media.ca8.uscourts.gov/opndir/16/01/143503P.pdf
No error in denial of asylum, as reasonable factfinder could think that petitioner could move elsewhere in the country, the ountry-specific evidence is vague, and there have been no recent murders.
http://media.ca8.uscourts.gov/opndir/16/01/143503P.pdf
Eighth Circuit: United States v. Randall Robinson
Brady, FRE
Brady material no sufficiently dispositive to be material.
No error in admission of previous conviction.
Where there are multiple superseding indictments, a count dropped from an earlier indictment can be tried later where the superseding indictment is based on a new set of facts.
No abuse of discretion in declining to recuse where an attorney who formerly represented the deft is hired by the judge as a clerk.
Sufficient evidence for false statements count.
Standard of review for vindictive prosc is de novo on law, clear error for facts.
Jury deadlocked, so no vindictive prosc.
Dissent - Brady impeachment evidence was material; error to include subsequent letter in record re: the recusal.
http://media.ca8.uscourts.gov/opndir/16/01/143503P.pdf
Brady material no sufficiently dispositive to be material.
No error in admission of previous conviction.
Where there are multiple superseding indictments, a count dropped from an earlier indictment can be tried later where the superseding indictment is based on a new set of facts.
No abuse of discretion in declining to recuse where an attorney who formerly represented the deft is hired by the judge as a clerk.
Sufficient evidence for false statements count.
Standard of review for vindictive prosc is de novo on law, clear error for facts.
Jury deadlocked, so no vindictive prosc.
Dissent - Brady impeachment evidence was material; error to include subsequent letter in record re: the recusal.
http://media.ca8.uscourts.gov/opndir/16/01/143503P.pdf
Eighth Circuit: Frederic Fezard v. United Cerebral Palsy etc.
Employment law - home health
When the employee cares for the patient in the home of the employee, the "private home" exception to the labor statute applies.
Retaliation claim properly dismissed, as nonretaliatory basis not proven pretextual.
http://media.ca8.uscourts.gov/opndir/16/01/143601P.pdf
When the employee cares for the patient in the home of the employee, the "private home" exception to the labor statute applies.
Retaliation claim properly dismissed, as nonretaliatory basis not proven pretextual.
http://media.ca8.uscourts.gov/opndir/16/01/143601P.pdf
Eighth Circuit: United States v. Brian Daniel
Fourth Amendment - car search
Even if stated purpose of the search was to look for a gun, the odor of drugs, an observed transaction, and the discovery of drugs in the possession of an occupant gave probable cause for the search.
http://media.ca8.uscourts.gov/opndir/16/01/151135P.pdf
Even if stated purpose of the search was to look for a gun, the odor of drugs, an observed transaction, and the discovery of drugs in the possession of an occupant gave probable cause for the search.
http://media.ca8.uscourts.gov/opndir/16/01/151135P.pdf
Eighth Circuit: United States v. Trevon Sykes
ACCA predicates
As the PSR was sufficient to establish the burglary convictions as "generic burglary," the convictions are ACCA predicates.
Crime committed as a juvenile considered as ACCA predicates do not implicate 8A.
http://media.ca8.uscourts.gov/opndir/16/01/143139P.pdf
As the PSR was sufficient to establish the burglary convictions as "generic burglary," the convictions are ACCA predicates.
Crime committed as a juvenile considered as ACCA predicates do not implicate 8A.
http://media.ca8.uscourts.gov/opndir/16/01/143139P.pdf
Eighth Circuit: Rebecca Nichols v. Tri-National Logistics, Inc.
Title VII
Error in summary dismissal of gender discrimination claim - many factors, including that the discrimination does not have to happen on company premises in order to be actionable under Title VII.
Dismissal of claim based on retaliatory ending of employment upheld.
Dissent: Insufficient time between first report and ending of employment to justify a claim.
http://media.ca8.uscourts.gov/opndir/16/01/151153P.pdf
Error in summary dismissal of gender discrimination claim - many factors, including that the discrimination does not have to happen on company premises in order to be actionable under Title VII.
Dismissal of claim based on retaliatory ending of employment upheld.
Dissent: Insufficient time between first report and ending of employment to justify a claim.
http://media.ca8.uscourts.gov/opndir/16/01/151153P.pdf
Eighth Circuit: United States v. Juan Manzano-Huerta
Sentencing - Plea deals
Where a plea agreement recites that the deft believed that the workers could be paid as independent contractors, Govt may attempt at sentencing to establish a further obstruction sentencing bump based on the categorization of the workers as independent contractors.
Obstruction bump established by a preponderance.
http://media.ca8.uscourts.gov/opndir/16/01/151416P.pdf
Where a plea agreement recites that the deft believed that the workers could be paid as independent contractors, Govt may attempt at sentencing to establish a further obstruction sentencing bump based on the categorization of the workers as independent contractors.
Obstruction bump established by a preponderance.
http://media.ca8.uscourts.gov/opndir/16/01/151416P.pdf
Seventh Circuit: USA v. Lance Slizewski
Fourth Amendment - Franks
No error in denial of a Franks hearing, as affiant's mistaken identification of brands of shoes and automobiles were not sufficient to justify the hearing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-2397:J:Kanne:aut:T:fnOp:N:1681429:S:0
No error in denial of a Franks hearing, as affiant's mistaken identification of brands of shoes and automobiles were not sufficient to justify the hearing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-2397:J:Kanne:aut:T:fnOp:N:1681429:S:0
Seventh Circuit: Benard McKinley v. Kim Butler
Habeas, retroactivity (Posner)
Although Federal Habeas is unavailable for 8A claim as it was not raised on state direct appeal, there is sufficient cause & prejudice for a successive state Habeas. A post-sentencing Supreme Court holding establishing a categorical bar to mandatory life sentences for juveniles also established a non-categorical right for juvenile status to be considered in mitigation when imposing a life sentence.
Dissent: The ethic behind the non-categorical right was present in earlier decisions as well. Problematic rule.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-1944:J:Ripple:dis:T:fnOp:N:1681279:S:0
Although Federal Habeas is unavailable for 8A claim as it was not raised on state direct appeal, there is sufficient cause & prejudice for a successive state Habeas. A post-sentencing Supreme Court holding establishing a categorical bar to mandatory life sentences for juveniles also established a non-categorical right for juvenile status to be considered in mitigation when imposing a life sentence.
Dissent: The ethic behind the non-categorical right was present in earlier decisions as well. Problematic rule.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-1944:J:Ripple:dis:T:fnOp:N:1681279:S:0
Seventh Circuit: USA v. J.B. Brown
Batson.
Similarities between jurors are not proof that a court did not consult the record, where the court explicitly states that the record was consulted.
With respect to comparators, false arrest is distinguishable from having charges dropped or being later found not guilty.
Lack of follow-up questioning is not proof of pretext.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-3652:J:Flaum:aut:T:fnOp:N:1680662:S:0
Similarities between jurors are not proof that a court did not consult the record, where the court explicitly states that the record was consulted.
With respect to comparators, false arrest is distinguishable from having charges dropped or being later found not guilty.
Lack of follow-up questioning is not proof of pretext.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-3652:J:Flaum:aut:T:fnOp:N:1680662:S:0
Seventh Circuit: USA v. Iaad Hamad
Fourth Amendment - administrative searches.
A warrantless administrative search of the areas proximate to the cigarette inventory pursuant to local ordinance and during business hours does not violate the Fourth Amendment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-3813:J:Rovner:aut:T:fnOp:N:1680928:S:0
A warrantless administrative search of the areas proximate to the cigarette inventory pursuant to local ordinance and during business hours does not violate the Fourth Amendment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-3813:J:Rovner:aut:T:fnOp:N:1680928:S:0
Seventh Circuit: EEOC v. AutoZone, Incorporated
ADA
Substantial evidence for denial of claim based on lifting restrictions. Although another person in the shop had a paralyzed arm, the latter was a part-timer who could lift with his other arm.
No error in denial of "team" jury instruction where the re-assigned work was delegate work of the specific position, not a general allocation of duties.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1753:J:Bauer:aut:T:fnOp:N:1681150:S:0
Substantial evidence for denial of claim based on lifting restrictions. Although another person in the shop had a paralyzed arm, the latter was a part-timer who could lift with his other arm.
No error in denial of "team" jury instruction where the re-assigned work was delegate work of the specific position, not a general allocation of duties.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1753:J:Bauer:aut:T:fnOp:N:1681150:S:0
Seventh Circuit: August Bogina, III v. Medline Industries, Incorporated
Statutory interpretation, False Claims Act
Where a provision of a statute clarifies an ambiguity in a parallel earlier provision, the new reading may be retroactively applied.
Where the relator in a qui tam action under the False Claims Act merely supplies detail for things already known in outline from previous suits, the court does not have jurisdiction under the statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1867:J:Posner:aut:T:fnOp:N:1680761:S:0
Where a provision of a statute clarifies an ambiguity in a parallel earlier provision, the new reading may be retroactively applied.
Where the relator in a qui tam action under the False Claims Act merely supplies detail for things already known in outline from previous suits, the court does not have jurisdiction under the statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1867:J:Posner:aut:T:fnOp:N:1680761:S:0
Seventh Circuit: Michael Thompson v. William Holm
S1983 - prison food/religion.
Denial of substitute meals during periods of fast substantially burdens Free Exercise of Religion.
No qualified immunity for denial of food.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1928:J:Rovner:aut:T:fnOp:N:1681174:S:0
Denial of substitute meals during periods of fast substantially burdens Free Exercise of Religion.
No qualified immunity for denial of food.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1928:J:Rovner:aut:T:fnOp:N:1681174:S:0
Fifth Circuit: William Gibson, et al v. USA, et al
FTCA
Helping folks into and out of trailers is a garden-variety fucntion not susceptible to policy analysis, and therefore not subject to the discretionary conduct exception to the FTCA.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31303-CV0.pdf
Helping folks into and out of trailers is a garden-variety fucntion not susceptible to policy analysis, and therefore not subject to the discretionary conduct exception to the FTCA.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31303-CV0.pdf
Fifth Circuit: USA v. James Caravayo
Sentencing, Free Association
Where a deft objects to a condition of sentence but does not phrase the objections in terms of the sentencing statute, the review is for plain error.
As claimed error does not harm the judicial process, no plain error in the lack of relation to the sentencing statute.
As sentencing condition was not reasonably related to the aim of the sentencing statute, the Free Association challenge prevails,
Dissent: As there was no objection to the sentencing condition on the basis of the statute, the argument is not preserved.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50773-CR0.pdf
Where a deft objects to a condition of sentence but does not phrase the objections in terms of the sentencing statute, the review is for plain error.
As claimed error does not harm the judicial process, no plain error in the lack of relation to the sentencing statute.
As sentencing condition was not reasonably related to the aim of the sentencing statute, the Free Association challenge prevails,
Dissent: As there was no objection to the sentencing condition on the basis of the statute, the argument is not preserved.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50773-CR0.pdf
Fifth Circuit: Occidental Chemical Corp. v. Louisiana Public Service
FRCP, Administrative law.
A case stayed indefinitely pending an administrative challenge by a nonparty qualifies for the "out of court" exception to "final order" jurisdiction.
Where the statute in question does not bar the court from staying the action, the primary jurisdiction doctrine may be used to stay an action that is within the scope of a statute that contemplates both judicial and administrative enforcement.
When staying actions pending administrative enforcement actions brought by a non-party, a temporary stay is appropriate, subject to discretionary extensions for good cause.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30100-CV0.pdf
A case stayed indefinitely pending an administrative challenge by a nonparty qualifies for the "out of court" exception to "final order" jurisdiction.
Where the statute in question does not bar the court from staying the action, the primary jurisdiction doctrine may be used to stay an action that is within the scope of a statute that contemplates both judicial and administrative enforcement.
When staying actions pending administrative enforcement actions brought by a non-party, a temporary stay is appropriate, subject to discretionary extensions for good cause.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30100-CV0.pdf
Fifth Circuit: Joseph Robertson, et al v. Chevron USA, Incorporated
Class Actions
When a defendant seeks to remove under CAFA "mass actions" provisions, the court should make common-sense assumptions about amounts-in-controversy.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30920-CV0.pdf
When a defendant seeks to remove under CAFA "mass actions" provisions, the court should make common-sense assumptions about amounts-in-controversy.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30920-CV0.pdf
Second Circuit: Fed. Treasury Enter. Sojuzplodoimport v. Spirits Int’l B.V.
Comity, International Law, Trademark, Vodka.
When a foreign sovereign holds that an earlier assignment of trademark rights was ineffective, for purposes of standing, U.S. courts must defer on grounds of comity from questioning the reassignment of rights, although the subsequent questions on the merits of each assignment within its jurisdiction may be decided.
For purposes of the act of state doctrine, a state's decision on the ownership of a U.S. trademark may be considerwd as occurring within its own territory.
There is very likely no commercial exception to the Act of State doctrine. (!)
The assignment of rights of ownership of a trademark is a governmental, not commercial, act.
Prior dismissal of trademark claim does not bar present claim under res judicata, as dismissal for statutory standing is a curable defect.
As prior dismissal was voluntary, presumption of laches arises on non-Lanham claims.
http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/1/doc/14-4721_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/1/hilite/
When a foreign sovereign holds that an earlier assignment of trademark rights was ineffective, for purposes of standing, U.S. courts must defer on grounds of comity from questioning the reassignment of rights, although the subsequent questions on the merits of each assignment within its jurisdiction may be decided.
For purposes of the act of state doctrine, a state's decision on the ownership of a U.S. trademark may be considerwd as occurring within its own territory.
There is very likely no commercial exception to the Act of State doctrine. (!)
The assignment of rights of ownership of a trademark is a governmental, not commercial, act.
Prior dismissal of trademark claim does not bar present claim under res judicata, as dismissal for statutory standing is a curable defect.
As prior dismissal was voluntary, presumption of laches arises on non-Lanham claims.
http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/1/doc/14-4721_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/1/hilite/
Second Circuit: Garfield v. Ocwen Loan Servicing, LLC
Bankruptcy/FDCPA
As the remedies of the FDCPA do not explicitly conflict with the discharge injunction from bankruptcy proceedings, the Bankruptcy act does not partially repeal the FDCPA with reference to post-discharge suits; the ordinary statutory remedies are available.
Piecemeal litigation fears do not justify the barring of claims under the FDCPA.
http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/2/doc/15-527_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/2/hilite/
As the remedies of the FDCPA do not explicitly conflict with the discharge injunction from bankruptcy proceedings, the Bankruptcy act does not partially repeal the FDCPA with reference to post-discharge suits; the ordinary statutory remedies are available.
Piecemeal litigation fears do not justify the barring of claims under the FDCPA.
http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/2/doc/15-527_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/2/hilite/
First Circuit: Bezdek v. Vibram USA, Inc.
Class action - acceptance of settlement.
No abuse of discretion in acceptance of settlement below initial estimates.
No abode of discretion in valuation of injunctive relief barring false advertisements.
Given extensive discovery work, the fees and the clear sailing agreement were reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/15-1207P-01A.pdf
No abuse of discretion in acceptance of settlement below initial estimates.
No abode of discretion in valuation of injunctive relief barring false advertisements.
Given extensive discovery work, the fees and the clear sailing agreement were reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/15-1207P-01A.pdf
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