Out of time

Here are the other slips from today's cull:

DC Circuit:

15-1205      BP Energy Company v. FERC

 

15-5200      David Patchak v. Sally Jewell

  

15-5223      Friends of Animals v. Sally Jewell

15-7084        International Union, Security v. Assane Faye

 

 

Federal Circuit:

 

GROVER v. OPM [OPINION] 

 

SKYHAWKE TECHNOLOGIES, LLC v. DECA INT CORP. [MOTION PANEL ORDER] 

 

LAGUNA CONSTRUCTION COMPANY v. DEFENSE [OPINION] 

 

 

-CB

 

 

DC Circuit: EarthReports, Inc. v. FERC

Environment, Administrative


Agency environmental review that did not consider the net increase in international exports of natural gas after the expansion of the facility was not arbitrary or capricious, as the agency would have to subsequently authorize the increase in exports.

General carbon cost metric is insufficiently standard.

General challenges to shipping activity either outside scope or sufficiently accounted for.


EarthReports, Inc. v. FERC

Eleventh Circuit: USA v. Secretary, Florida Department of Corrections, et al.

Religion, Prisons


Under federal statute, assertion of cost burden is insufficient basis for state's refusal to provide kosher meals to prisoners who hold the requisite sincere religious belief.


USA v. Secretary, Florida Department of Corrections, et al.

Ninth Circuit: JL BEVERAGE CO V. JIM BEAM BRANDS CO.

FRCP, Trademarks


Error to issue summary judgement referencing only the denial of a preliminary injunction, as the considerations are distinct.

Sufficient indicia of confusion and foreknowledge to create a genuine issue of material fact as to consumer confusion.

JL BEVERAGE CO V. JIM BEAM BRANDS CO.

Ninth Circuit: USA V. JIMMY TORRES

Fourth Amendment, Sentencing


Police impoundment and inventory procedures are sufficiently canalized to assure that impoundment of vehicle from unlicensed driver without proof of ownership and subsequent search of the air filter did not violate the Fourth Amendment.

As magistrate's recommendation was adopted in full, judge's subsequent comments in tension with its findings did not violate due process, and the magistrate's findings are not facially inconsistent with the justification for the inventory search.

Appeals waiver does not bar challenge to residual clause sentencing.

Guidelines residual clause void for vagueness, according to government's concession.  Assumed without being decided.


USA V. JIMMY TORRES

Ninth Circuit: USA V. ISRAEL ORNELAS

Amended opinion, denial of en banc.



USA V. ISRAEL ORNELAS

Ninth Circuit: IN RE COMPLAINT OF JUDICIAL MISCONDUCT JUDICIAL MISCONDUCT

Judicial Ethics, Legal Ethics


Judges' external teaching and speaking on law-related subjects and association with members of the bar did not require recusal in disbarment proceedings against those members of the bar.  The challenge to refusal to recuse is merits-based, and must be dismissed.
 

IN RE COMPLAINT OF JUDICIAL MISCONDUCT JUDICIAL MISCONDUCT

Eighth Circuit: United States v. Stoney End of Horn

Crim, FRE, Hearsay


Sufficient evidence despite inconsistencies, as inconsistencies could have been raised in cross-examination.

Error to admit hearsay, as external corroboration is not an indicium of speaker's truthfulness.  Harmless error, given corroboration.

No abuse of discretion in upward departure in sentencing.



United States  v.  Stoney End of Horn

Eighth Circuit: United States v. Bob Woods

Fourth Amendment, Miranda


Police had sufficiently reasonable suspicion to extend traffic stop for canine search, given odor of drugs, digital scales, and tip that there was a hidden compartment.

Refusal to sign Miranda waiver does not make subsequent statements inadmissible.


United States  v.  Bob Woods

Eighth Circuit: Luis Herrera v. United States

Habeas, Drugs, Ineffective Assistance


Denial of writ for ineffective assistance, as a statute referring to one quantity of pure substance and a second quantity of diluted substance applies where the deft sold a quantity of diluted substance containing the proscribed amount of the pure substance.

Luis Herrera  v.  United States

Eighth Circuit: Kenneth Stewart, Jr. v. Nucor Corporation

Contracts, Employment, Torts


Boilerplate negligence release valid and not unconscionable, as the language was plain and the trainee employee was permitted to ask questions about the form. 


Kenneth Stewart, Jr.  v.  Nucor Corporation

Seventh Circuit: Robert Schaefer v. Walker Bros. Enterprises, Inc.

FLSA, Deference, Administrative


To determine whether additional duties are related to or incidental to tipped duties, look to logical relation to the tipped duties, not industry practice.

No Auer deference to agency boilerplate language for statutory notification of rights.


Robert Schaefer v.  Walker Bros. Enterprises, Inc.

Seventh Circuit: FDIC v. Kenneth Hoffman, Jr.

Federal Jurisdiction, Contracts


Court retains jurisdiction when FDIC assigns its interest in the loan to a private company, as the case continues to arise under federal law.

Under state law, release of claim that contains a general release of claim as well as a release of a specific claim is facially ambiguous.

Under state law, the fair and customary meaning prevails.


FDIC v. Kenneth Hoffman, Jr.

Seventh Circuit: Laura Hatcher v. Board of Trustees

Employment, Discrimination, Title VII


Employee's mistaken belief that statute compelled reporting of misconduct did not transform the speech in the context of employment to protected speech.

No genuine issue of fact over pretextual nature of nondiscriminatory motive, given decisions of impartial committee and subjective judgement of decisionmaker. 


Laura Hatcher v.   Board of Trustees

Seventh Circuit: USA v. Brian Miller

Statutory Construction, Sentencing


The intent of the creator is properly considered when determining the lasciviousness of an image.

No procedural error, as mitigation factors need not be itemized.  Court cannot consider reasonableness of statutory minimum.  De minimus errors in conditions of supervised release do not justify resentencing.


USA v.   Brian Miller

Third Circuit: Sebastian Richardson v. Director Federal Bureau of Prisons

Class Actions, Mootness, FRCP


Where a representative of a class seeking prospective injunctive relief files a claim susceptible to mootness, there is not an untimely delay in seeking class certification, and the class nature of the claim is evident from the initial claim, the class certification can relate back to the filing date of the initial claim.


Sebastian Richardson v. Director Federal Bureau of Prisons

Second Circuit: Fuentes v. Griffin

Brady, Habeas, AEDPA


Habeas granted, as psychiatric records of critical witness offered substantial impeachment value.

Dissent: Materiality is intrinsically subjective.


Fuentes v. Griffin

Second Circuit: Mazzei v. Money Store

Class Actions, FRCP


A court has the power and obligation to decertify a class after a jury verdict.  Class members enjoy equitable tolling for the duration of the class.  Findings of facts by the jury must be respected, unless egregious, serious error, or a miscarriage of justice.

No abuse of discretion in court's determination that lack of categorical privvity barred the class formation on grounds of typicality of representative and predominance of claim.

Mazzei v. Money Store