Out of time for today -- two more in the Federal Circuit, viz:
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5056.Opinion.7-8-2016.1.PDF
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5077.Opinion.7-8-2016.1.PDF
Cheers.
-CB
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
DC Circuit: Carlos Loumiet v. USA
FTCA, Bivvens, Statute of Limitations
Constitutionally defective exercises of discretion do not shield the government from suit under the discretionary function exception to the FTCA.
The cumulative effect of continuing violations must be considered when considering when a claim under Bivvens accrues.
Carlos Loumiet v. USA
DC Circuit: Sandra Marshall v. Honeywell Technology Systems
FRCP, Estoppel, Bankruptcy
District court summary judgments based in judicial estoppel are reviewed for abuse of discretion.
Here, as there little risk that the contradictory representations arose from inadvertence or mistake, there was no abuse of discretion.
Circuit split flagged on related question.
Sandra Marshall v. Honeywell Technology Systems
Eleventh Circuit: In re: Gary Baptiste
Habeas, AEDPA
AEDPA's second-or-successive bar should be applied to applications under the state prisoner federal Habeas statute.
Denied here on merits and law of the case.
In re: Gary Baptiste
Eleventh Circuit: Hartford Accident and Indemnity Company v. Crum & Forster Specialty Insurance Company, et al.
FRCP
A settlement conditioned on vacatur is not a voluntary forfeiture of appellate review that therefore forecloses the equitable remedy of vacatur, as some settlements are sufficiently in the public interest to justify the erasure of valuable precedent.
Hartford Accident and Indemnity Company v. Crum & Forster Specialty Insurance Company, et al.
Eleventh Circuit: Johnny L. Marshall v. Secretary, Florida Department of Corrections, et al.
Habeas, Ineffective Assistance, Fourth Amendment, AEDPA
Habeas for ineffective assistance denied where counsel did not attempt to suppress identification made after suspect was transported back to the scene of the crime during a Terry stop.
Concurrence: State statute prohibits doing that during a Terrry stop, but AEDPA prohibits the writ, since the state statutory argument wasn't made in state Habeas.
Johnny L. Marshall v. Secretary, Florida Department of Corrections, et al.
Tenth Circuit: Maiteki v. Marten Transport
FCRA
Company's reinvestigation of annotation on driving employment record was sufficient, given that the stature does not require exhaustive reinvestigation, and that the plaintiff's request for reinvestigation was insufficiently particular.
Maiteki v. Marten Transport
Ninth Circuit: OTGONBAYAR LKHAGVASUREN V. LORETTA E. LYNCH
Immigration
Sufficient evidence for agency finding that persecution was animated by anticorruption beliefs of petitioner, or that the corruption was connected to the government.
OTGONBAYAR LKHAGVASUREN V. LORETTA E. LYNCH
Ninth Circuit: MARTIN SMITH V. IRS
Bankruptcy, Taxes
Post-assessment tax form filing was insufficiently honest and reasonable to allow tax debt to be discharged in bankruptcy.
MARTIN SMITH V. IRS
Ninth Circuit: COMPLETELY SEALED CASE: GRAND JURY SUBPOENA
FRCP, Fourth Amendment, Computers
Subpoena target has a reasonable expectation of privacy in emails on personal account that dealt with personal matters. Error not to quash overbroad subpoena that would have returned them.
Public official's conversations with state attorneys relating to ethics and conflicts of interest are not privileged here, as the state owns the privilege.
COMPLETELY SEALED CASE: GRAND JURY SUBPOENA
Ninth Circuit: MACARIO BONILLA V. LORETTA E. LYNCH
Immigration, Administrative
Although the claim was not advanced with sufficient diligence, the agency's refusal to reopen the earlier proceeding on the grounds that the deportation was a transformative event that deprived the heretofore lawful permanent resident of a viable domicile was error.
Courts have power to review the agency's denial of an application for a sua sponte reopening where the application asserts legal or constitutional error. The agency's subsequent decision, however, is unreviewable.
MACARIO BONILLA V. LORETTA E. LYNCH
Ninth Circuit: FACEBOOK, INC. V. STEVEN VACHANI
Computers, CFAA
For purposes of the federal anti-spam law, social networking messages sent to internal and external accounts by a third party on behalf of a user were not misleading, as the user, the third party, and the social networking site were co-authors, and the internal messages were appropriately identified.
Where a third party uses the logon credentials of a site's user with the users permission, but after the explicit revocation of permission by the site and subsequently circumvents a technological barrier erected against it, the access is unauthorized for purposes of the relevant statute.
Personal liability and discovery sanctions upheld, damages run from the receipt of the C&D.
FACEBOOK, INC. V. STEVEN VACHANI
Ninth Circuit: EQUITY INCOME PARTNERS, LP V. CHICAGO TITLE INSURANCE COMP.
Insurance, Contracts
Certified questions to Arizona on insurance policy contract.
Facts:
Lender lent purchaser money to buy land. Land was later determined to be without access. Lender's insurer assessed the impact of the loss of access, and paid the lender that amount. Lender's subsequent assessment said that the insurer had undervalued the impact. Lender then purchased the properties with a full-credit bid at sale of estate, and the insurer now maintains that lender's payment to itself absolved the insurer of further liability vis a vis the earlier transaction.
Questions about the relevant boilerplate language certified to state high court.
EQUITY INCOME PARTNERS, LP V. CHICAGO TITLE INSURANCE COMP.
Ninth Circuit: CALIFORNIA SEA URCHIN COMM'N V. MICHAEL BEAN
Environmental, Administrative, Statute of Limitations.
The APA time limit to challenge the ending of a specific agency program runs from the order terminating the program, not the order holding that the agency has the authority to terminate the program. An earlier challenge would be theoretical.
CALIFORNIA SEA URCHIN COMM'N V. MICHAEL BEAN
Eighth Circuit: United States v. Benjamin Hart
Sentencing
No abuse of discretion in condition on supervised release requiring disclosure of financial records and the barring of new charge accounts where an apparently indigent deft is required to make minimal restitution.
United States v. Benjamin Hart
Eighth Circuit: United States ex rel Fields v. Bi-State Devel. Agency, etc.
FRCP, Federal Jurisdiction, FCA
An inter-state compact entity's interlocutory appeal asserting lack of jurisdiction under the False Claims Act is not sufficiently final for appellate review, as it does not implicate sovereign immunity under the 11th Amendment, which, although related, is a distinct claim that has to be asserted below.
Eighth Circuit: United States ex rel Fields v. Bi-State Devel. Agency, etc.
Eighth Circuit: Compart's Boar Store, Inc. v. United States
FTCA
Scientific testing with ambiguous results that required expert interpretation qualifies for the discretionary function exception to federal liability under the FTCA.
Compart's Boar Store, Inc. v. United States
Eighth Circuit: Blake Marine Group v. CarVal Investors LLC
Choice of Law, Admiralty, FRCP
Although application of the (Erie) forum's law would allow greater recovery in the forum state, as the forum state borrows the statute of limitations from the state providing the relevant substantive law, the forum state's choice of law rules minimize the importance of recoveries other than those involved in the case, and the law of the plaintiff's state should therefore control.
Insufficient basis for claim of laches under Admiralty jurisdiction, as there's no showing of navigable waters.
Claims of fraud pleaded with insufficient particularity to justify an equitable toll to the statute of limitations.
Blake Marine Group v. CarVal Investors LLC
Eighth Circuit: United States v. Donald Harvey
F.R.Crim.P, Double Jeopardy, Sentencing
No abuse of discretion in denial of permission to withdraw nolo contendre plea where deft subsequently professes innocence, claims to have been unaware of the subpoena power, and claims that evidence was manufactured.
Simultaneously charging receipt and possession under separate statutes was still Double Jeopardy.
Concurrence: No resentencing necessary where the sentences were set to run concurrently.
United States v. Donald Harvey
Seventh Circuit: Gilbert Knowles v. Randy Pfister
Discrimination, Religion, Injunctions
Given statutory rights to religious expression, prison inmate demonstrates the possibility of irreparable harm and likely success on the merits in claim seeking to wear a Wiccan pendant.
Gilbert Knowles v. Randy Pfister
Fifth Circuit: Clarence Brown v. Allison Taylor, et al
Prisons, FRCP
Prisoner mailbox rule is potentially applicable in cases of civil confinement.
Sua sponte dismissal of pro se claim without notice or opportunity to amend was error.
Clarence Brown v. Allison Taylor, et al
Fifith Circuit: USA v. Tomas Puga-Yanez
Statutory Construction
State statute is categorically a crime of violence, as harm to the victim is not an element of the generic crime.
USA v. Tomas Puga-Yanez
Fourth Circuit: Keith Clark v. Larry Cartledge
Fed.R.App.P, FRCP
Request for additional time to file an application for a certificate of appeal may be construed as sufficient notice of appeal.
Dissent: No, and the rule is jurisdictional.
Keith Clark v. Larry Cartledge
Second Circuit: In re Motors Liquidation Co.
Bankruptcy, Jurisdiction, Procedural Due Process, Mootness
As direct and indirect post-sale claims against the successor corporation arose within the bankruptcy process and related to the injunctions issued, the bankruptcy court properly exercised jurisdiction over the claims.
Prepetition tort claims against a successor corporation state a claim in bankruptcy where the both the contingent flaw and the relationship from which the duty arose were present prior to the order of sale.
No clear error in court's holding that Procedural Due Process requires--prior to approval of sale--direct purchaser notice of flaws that manufacturer reasonably should have known about.
To determine PDP prejudice, court must have a fair assurance that the prior decision was not substantially swayed.
Given high stakes, there was a substantial likelihood of settlement for claims directly relating to the defect.
Court's ruling that claims against successor corporation were equitably moot was advisory and is therefore vacated.
In re Motors Liquidation Co.
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