As CB has a conference presentation to prepare, dissertation work to do, and wants to spend more quality time on bar prep, there will likely be no batting practice here next week.
G-d willin' and the crick don't rise, I'll likely be back the following week, or some time after that.
Keep yer stick on the ice.
-- 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.
Eleventh Circuit: Cozzi v. Thomas
Denial of qualified immunity for arrest when tips merely established present location of suspect, and that he matched the description; as tattoos were not examined and a bag of 32 pills was insufficient indication that suspect had taken six during the robbery, arrest was not arguably within reasonable suspicion.
http://media.ca11.uscourts.gov/opinions/pub/files/201711011.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201711011.pdf
Eleventh Circuit: Dennis Haynes v. Hooters of America, LLC
Suit seeking relief that is parallel to an already-agreed settlement with a third party is not moot, as there is no proof in the record of present compliance, no guarantee of ongoing compliance, and the plaintiff wouldn't have standing to enforce the third-party agreement.
http://media.ca11.uscourts.gov/opinions/pub/files/201713170.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201713170.pdf
DC Circuit: USA v. Marlon Haight
No abuse of discretion in denial of delay in trial when gov't moves to include new holograph evidence two weeks before trial.
Harmless non-abuse-of-discretion to allow hearsay report of identification of deft, as declarant was available to testify at trial, and did testify at trial, and, on direct, didn't remember the identification.
No abuse of discretion in admission of deft's holograph writings in backpack, as sufficiently authenticated, and probative of deft's ownership of backpack and general knowledge of guns and drugs.
Ineffective assistance remanded for factual development.
District Assault with a Dangerous Weapons statute is a valid ACCA predicate, given its elements; a violent force can be indirect or made with merely reckless intent.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6DDDED8EB99FE1A5852582B4004FFDDF/$file/16-3123.pdf
Harmless non-abuse-of-discretion to allow hearsay report of identification of deft, as declarant was available to testify at trial, and did testify at trial, and, on direct, didn't remember the identification.
No abuse of discretion in admission of deft's holograph writings in backpack, as sufficiently authenticated, and probative of deft's ownership of backpack and general knowledge of guns and drugs.
Ineffective assistance remanded for factual development.
District Assault with a Dangerous Weapons statute is a valid ACCA predicate, given its elements; a violent force can be indirect or made with merely reckless intent.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6DDDED8EB99FE1A5852582B4004FFDDF/$file/16-3123.pdf
DC Circuit: Ameren Services Company, et al v. FERC
A regulated party has standing to challenge the regulation.
Question is ripe, as possible future displacement of a utility's approved projects due to the change in the cost allocation scheme's structure is conceded by all parties, and further factual development wouldn't speak to the question of law at issue.
Claim first made in Article III review that the agency impermissibly shifted the burden of proving reasonableness to the utility needed to be exhausted in the pertition for agency review.
On merits, Commission's ruling that already-approved projects needed to be revisited in light of the regionally interconnected projects was not arbitrary or capricious, as there are public policy benefits from that sort of thing, and proper accounting for the interregional projects requires integration of the costs of the already-approved projects.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6440A9564E36D841852582B4004FED20/$file/16-1150.pdf
Question is ripe, as possible future displacement of a utility's approved projects due to the change in the cost allocation scheme's structure is conceded by all parties, and further factual development wouldn't speak to the question of law at issue.
Claim first made in Article III review that the agency impermissibly shifted the burden of proving reasonableness to the utility needed to be exhausted in the pertition for agency review.
On merits, Commission's ruling that already-approved projects needed to be revisited in light of the regionally interconnected projects was not arbitrary or capricious, as there are public policy benefits from that sort of thing, and proper accounting for the interregional projects requires integration of the costs of the already-approved projects.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6440A9564E36D841852582B4004FED20/$file/16-1150.pdf
Federal Circuit: Starry Associates v. US
The statute authorizing an award of fees does not contemplate egregiously dilatory agency conduct as a basis for increasing the base rate of compensation; as the "special factor" basis is listed with a "cost of living" basis, the statute authorizes increases in the award where the base rate is insufficient due to the character of the representation. Because noscitur.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2148.Opinion.6-22-2018.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2148.Opinion.6-22-2018.pdf
Tenth Circuit: United States v. Vance
If the traffic stop on a theory of presenting a hazard to others was due to a mistake of law, it was a reasonable mistake of law, given the state's law about changing lanes.
As an element of the lane-changing law is the driver's omission of checking to see if the lane is clear, the police had reasonable cause for the stop in order to determine if the required visual check had been performed.
https://www.ca10.uscourts.gov/opinions/17/17-2008.pdf
As an element of the lane-changing law is the driver's omission of checking to see if the lane is clear, the police had reasonable cause for the stop in order to determine if the required visual check had been performed.
https://www.ca10.uscourts.gov/opinions/17/17-2008.pdf
Tenth Circuit: United States v. Pacheco-Donelson
No plain error in procedural reasonableness of supervised release condition barring all contact with gang members--including family members--as deft had the burden to prove close association.
No abuse of discretion in substantive reasonableness of same condition, given past extensive gang associations and the need to protect the public.
https://www.ca10.uscourts.gov/opinions/17/17-1180.pdf
No abuse of discretion in substantive reasonableness of same condition, given past extensive gang associations and the need to protect the public.
https://www.ca10.uscourts.gov/opinions/17/17-1180.pdf
Ninth Circuit: Jeffrey Short v. Edmund G. Brown
No abuse of discretion in denial of injunction against voting-by-mail scheme, as there is no burden placed on the voters, and, under current precedent, a claim of vote dilution would have to allege a discriminatory allocation of votes, not the de minimis individual burden here.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/22/18-15775.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/22/18-15775.pdf
Ninth Circuit: Shame On You Productions, Inc. v. Elizabeth Banks
No abuse of discretion in awarding fees to deft in a copyright action, as the claim was denied after an extrinsic review of the scripts, and the plaintiff did not timely provide their script; recent circuit precedent emphasizing the reasonability of the litigating position does not compel the award to be revisited.
State breach of implied contract intermixed with question of infringement, court's non-apportionment of that portion was therefore justified.
No abuse of discretion in the reasonableness of the fees.
Motion for fees timely e-filed, but in the wrong category and then later filed in the correct category was properly considered, as the time limit isn't jurisdictional.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/21/16-55024.pdf
State breach of implied contract intermixed with question of infringement, court's non-apportionment of that portion was therefore justified.
No abuse of discretion in the reasonableness of the fees.
Motion for fees timely e-filed, but in the wrong category and then later filed in the correct category was properly considered, as the time limit isn't jurisdictional.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/21/16-55024.pdf
Eighth Circuit: Santos Rosales-Martinez v. Nick Ludwick
State court's re-imposition of limits on the confrontation of a witness during retrial after simply adopting the findings of the previous proceeding is not contrary to, or an unreasonable application of federal law on the subject.
http://media.ca8.uscourts.gov/opndir/18/06/171910P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/171910P.pdf
Eighth Circuit: Bobby Hargis v. John Koskinen
Owner of passthrough corporations must establish an actual outlay of resources to establish sufficient basis in the corporation to list the corporations losses on their taxes. Signing as a co-borrower a corporate loan does not establish a personal outlay.
[again, folks, this site doesn't contain advice of any kind.]
http://media.ca8.uscourts.gov/opndir/18/06/171694P.pdf
[again, folks, this site doesn't contain advice of any kind.]
http://media.ca8.uscourts.gov/opndir/18/06/171694P.pdf
Eighth Circuit: United States v. Gervais (Ken) Ngombwa
No ineffective assistance where attorney declines to investigate family relations, thinking there to be a substantial likelihood that unsavory details might be discovered.
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Eighth Circuit: Mario Ortiz v. Ferrellgas Partners
Where injunctive antitrust relief is sought, and the remedy parallels existing FTC consent orders, the complaint, to establish an injury, must contain sufficient factual content to support the rational inference that the nonmovant has violated the consent orders.
Indirect purchasers cannot seek disgorgement, given the risk of multiple and inconsistent proceedings.
Remanded to consider if state law claims are sufficient to retain jurisdiction.
http://media.ca8.uscourts.gov/opndir/18/06/164086P.pdf
Indirect purchasers cannot seek disgorgement, given the risk of multiple and inconsistent proceedings.
Remanded to consider if state law claims are sufficient to retain jurisdiction.
http://media.ca8.uscourts.gov/opndir/18/06/164086P.pdf
Seventh Circuit: USA v. Jose Maldonado
Sufficient evidence for conspiracy, as the distrustful arms-length relationship with the drug supplier was extensive, and occasionally worked on credit; a second connection between two dealers described as brotherly in fact speaks to the closeness of the conspirators.
Multiple conspiracies instruction proper, as there was no necessary hub to the group.
No error in denial of meeting-of-the-minds instruction, as distrust among the participants did not negate the business purpose of their association.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-1402:J:Bauer:aut:T:fnOp:N:2174265:S:0
Multiple conspiracies instruction proper, as there was no necessary hub to the group.
No error in denial of meeting-of-the-minds instruction, as distrust among the participants did not negate the business purpose of their association.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-1402:J:Bauer:aut:T:fnOp:N:2174265:S:0
Seventh Circuit: Brooks Goplin v. WeConnect, Incorporated
No clear error where the court reviews a website discussed in briefing and uses the content in coming to a decision, as the other party had to carry the burden, and the proof introduced was minimal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:18-1193:J:Barrett:aut:T:fnOp:N:2174452:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:18-1193:J:Barrett:aut:T:fnOp:N:2174452:S:0
Sixth Circuit: Filippo Leone v. BMI Refractory Servs., Inc.
Under state law, third party contractor has separate and distinct duty of care towards employees to avoid harmful acts when it is contracted to handle a pre-existing hazard.
Sixth Circuit: United States v. Clifton Satterwhite
As the statute requiring indictment within 30 days is followed by a provision mandating a speedy trial, and the latter clause establishes that the right in "this section" is waived if not asserted, that qualification can be imputed to the first clause.
An untimely indictment is therefore not a jurisdictional flaw, and a deft who waived all challenges to earlier proceedings is validly sentenced after receiving an indictment defective under the statute.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0118p-06.pdf
An untimely indictment is therefore not a jurisdictional flaw, and a deft who waived all challenges to earlier proceedings is validly sentenced after receiving an indictment defective under the statute.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0118p-06.pdf
Sixth Circuit: United States v. Frank Susany, Jr.
Error for sentencing court not to consider reduction due to the fact that the conspiracy hadn't gotten very far along, but since the error entitled the deft to a greater reduction for acceptance of responsibility and the court subsequently varied downwards to a level beneath the correct guidelines range, there was no prejudice. Harmless error.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0117p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0117p-06.pdf
Sixth Circuit: United States v. Jamal Cooper
Wiretap Act does not require a different application for each authorization, but merely that each application conform to the Act.
No clear error in authorizing the tap where many of the alternatives were discounted prospectively.
No error in denial of Franks hearing where the challenged omissions on the affidavit might be construed from the contents of the affidavit.
Sealing and delivery of tapes four days after the end of the tap did not transgress the two-day limit, as the government needed to confirm that the deft was no longer using that line.
Where trial judge accepts govt contention at trial that the content of the recorded conversation establishes that the confidential informant consented to the taping, no clear error in the admission of the tapes.
Parolee confidential informers can validly consent to the taping of conversations.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0116p-06.pdf
No clear error in authorizing the tap where many of the alternatives were discounted prospectively.
No error in denial of Franks hearing where the challenged omissions on the affidavit might be construed from the contents of the affidavit.
Sealing and delivery of tapes four days after the end of the tap did not transgress the two-day limit, as the government needed to confirm that the deft was no longer using that line.
Where trial judge accepts govt contention at trial that the content of the recorded conversation establishes that the confidential informant consented to the taping, no clear error in the admission of the tapes.
Parolee confidential informers can validly consent to the taping of conversations.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0116p-06.pdf
Fifth Circuit: Robert Furlough v. Lowell Cage
Owner of debtor corporation who was joined to a pendent civil suit does not have standing to challenge engagement of special counsel as veil-piercing expert in the bankruptcy suit on the basis that the appointee is affiliated with one of the creditors and would act in a manner adverse to the estate.
Standing is determined at the time of filing -- an after-acquired interest in the estate does not convert the plaintiff's interest to that of a creditor for purposes of standing.
[caveat -- quick work. as always, entertainment purposes only.]
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV0.pdf
Standing is determined at the time of filing -- an after-acquired interest in the estate does not convert the plaintiff's interest to that of a creditor for purposes of standing.
[caveat -- quick work. as always, entertainment purposes only.]
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV0.pdf
Fifth Circuit: Lois Davis v. Fort Bend County
Plain error where the deft's sentence was twice the correct amount after the court counted a state conviction for a crime that is more broadly defined than the generic federal version used in sentencing.
http://www.ca5.uscourts.gov/opinions/pub/16/16-41378-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-41378-CR0.pdf
Fourth Circuit: Lee Malvo v. Randall Mathena
Given the substantive right of a juvenile not to be sentenced to a mandatory life without parole sentence articulated by the Supreme Court and made retroactive to cases on collateral review, petitioner's initial sentencing must be reviewed, as it was unclear at trial whether the judge could suspend part of the life sentence, and additionally, relief might be warranted outside of mandatory sentences in the strict sense.
As there was no finding of incorrigibility, the jury's vote for life without parole needs to be revisited. Additional sentences imposed under plea deal are not shielded from review by the appeals waiver, as collateral challenges of new rights and assertions of substantive constitutional violations weren't enforceably waived.
Interesting peroration.
http://www.ca4.uscourts.gov/opinions/176746.P.pdf
As there was no finding of incorrigibility, the jury's vote for life without parole needs to be revisited. Additional sentences imposed under plea deal are not shielded from review by the appeals waiver, as collateral challenges of new rights and assertions of substantive constitutional violations weren't enforceably waived.
Interesting peroration.
http://www.ca4.uscourts.gov/opinions/176746.P.pdf
Second Circuit: United States v. Olmeda
Where conduct relevant to the offense (here, grounds for a sentence enhancement) is the subject of a contemporaneous prosecution in state court, the federal sentencing court must consider the Guidelines instruction that the terms are to run concurrently; there is no requirement that the state prosecution be on the docket at the time of federal sentencing.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/doc/15-3449_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/doc/15-3449_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/hilite/
Second Circuit: Copeland v. Vance
As plaintiffs seek relief holding the law void for vagueness as to an entire category of folding knives, the challenge is construed as a facial challenge; a past enforcement against one of the plaintiffs provided sufficient notice of the proscribed activity, establishing that it is possible to enforce the law constitutionally -- therefore not facially unconstitutional. While it is possible to enforce the law in a discriminatory manner, and there might be evidence of this discrimination in past enforcement, the law itself does not unduly invite such discrimination.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/doc/17-474_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/doc/17-474_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/hilite/
Second Circuit: Villanueva v. United States of America
Given Supreme Court precedent relating to another statute, a state Assault statute is a valid violent crime predicate under modified categorical review.
Dissent: All the courts are doing it, but that doesn't make it right. Scotus specifically said it doesn't apply in this context; where the statute applies to non-forceful harm such as poison, it's an offensive touching, not a use of force.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/doc/16-2528_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/hilite/
Dissent: All the courts are doing it, but that doesn't make it right. Scotus specifically said it doesn't apply in this context; where the statute applies to non-forceful harm such as poison, it's an offensive touching, not a use of force.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/doc/16-2528_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/hilite/
Federal Circuit: Royal Crown Company, Inc. v. The Coca-Cola Company, Inc.
A mark is generic if the public would understand that it referred to a key aspect of the genus, leading it to believe the mark is a generic term. This can be established from any competent source.
The inquiry into distinctiveness becomes more stringent as the mark grows more specific.
Association of the mark with the genus is not necessarily proof of the generic nature of the mark.
Ninth Circuit: Nu Image v. IATSE Local 720
The relevant statute only grants federal jurisdiction over claims of CBA violations; a suit alleging that the provision is void for lack of formation under state law therefore does not state a claim under the statute.
Dissent: It can be construed as a request for declaratory judgment as to the plaintiffs own alleged violation of that provision of the CBA.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/20/16-55451.pdf
Dissent: It can be construed as a request for declaratory judgment as to the plaintiffs own alleged violation of that provision of the CBA.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/20/16-55451.pdf
Ninth Circuit: Robert Stephens v. CoreLogic, Inc.
To establish contributory infringement under the statute, plaintiff needs to establish a likelihood of specific future infringement; specific allegations of the theory of infringement are necessary. While the software removes the metadata that aids in the detection of infringement, plaintiffs do not demonstrate how removal of this information alone will prompt a future infringement.
Discovery denials appropriate, as there was no specific statement of how the additional time and productions would show such future specific infringement.
Costs for testimony of employees of deft corporation can be taxed to opposing party.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/20/16-56089.pdf
Discovery denials appropriate, as there was no specific statement of how the additional time and productions would show such future specific infringement.
Costs for testimony of employees of deft corporation can be taxed to opposing party.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/20/16-56089.pdf
Eighth Circuit: United States v. Nicholas Ryan Hemsher
Inconsistencies in self-interested witnesses' testimony were subject to cross, and do not establish lack of sufficient evidence.
Exclusion of prior inconsistent statement to police was harmless, as inconsistencies explored elsewhere, and no contemporaneous proffer; exclusion of exited utterances by police during search was proper, since police officers don't get excited--also harmless.
Sufficient evidence for sentence enhancement based on number of firearms. Enhancement for another felony found by a preponderance can apply to firearm trafficking and possession, so long as it's not the actual underlying crime charged. Texts from incarceration referencing "snitches" sufficed for obstruction enhancement. Disparities in co-conspirators' sentences not per se unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/172189P.pdf
Exclusion of prior inconsistent statement to police was harmless, as inconsistencies explored elsewhere, and no contemporaneous proffer; exclusion of exited utterances by police during search was proper, since police officers don't get excited--also harmless.
Sufficient evidence for sentence enhancement based on number of firearms. Enhancement for another felony found by a preponderance can apply to firearm trafficking and possession, so long as it's not the actual underlying crime charged. Texts from incarceration referencing "snitches" sufficed for obstruction enhancement. Disparities in co-conspirators' sentences not per se unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/172189P.pdf
Eighth Circuit: United States v. Thomas Grace
A sentencing judge may properly consider offenses already incorporated in the guidelines calculations when deciding to vary upwards where the prior offenses strongly parallel the present crime. Argument that elements of state statute raised in sentencing were not met in present crime was waived since it was first raised in reply brief. Consideration of the statute not per se unreasonable.
Seventh Circuit: Henry Fiorentini v. Paul Revere Life Insurance
As a claimant has the burden to establish a covered condition, a CEO who has returned to work and exercises control over the corporation cannot establish a claim for disability based on the inability to perform another management task (sales) that he deems essential for the corporation to succeed.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-3137:J:Barrett:aut:T:fnOp:N:2174099:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-3137:J:Barrett:aut:T:fnOp:N:2174099:S:0
Seventh Circuit: USA v. Donald S. Harden
Sufficient evidence to establish death from the drugs sold where timeline suggests proximate consumption, despite statements in the record to the contrary regarding the substance's toxicity.
Sentencing enhancement for death requires merely actual causation, not proof of proximate cause; conspiracy provision does not imply reasonable forseeability.
Court's exclusion of testimony about another source for drugs was harmless error and not an abuse of discretion, as it might have tended to confuse.
Giving a timestamped convenience store surveillance photograph of the deft to the jury during deliberations did not warrant a mistrial.
Prosecution statements in closing and rebuttal closing (saying that the deft knew the present batch of heroin to be fatal, as opposed to the previous batch; saying that deft furnished drugs on both days as opposed to just one) don't warrant reversal, sufficiently cured ("if what the lawyers said is different than the evidence that you remember, the evidence is what counts.")
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-1270:J:Flaum:aut:T:fnOp:N:2173545:S:0
Sentencing enhancement for death requires merely actual causation, not proof of proximate cause; conspiracy provision does not imply reasonable forseeability.
Court's exclusion of testimony about another source for drugs was harmless error and not an abuse of discretion, as it might have tended to confuse.
Giving a timestamped convenience store surveillance photograph of the deft to the jury during deliberations did not warrant a mistrial.
Prosecution statements in closing and rebuttal closing (saying that the deft knew the present batch of heroin to be fatal, as opposed to the previous batch; saying that deft furnished drugs on both days as opposed to just one) don't warrant reversal, sufficiently cured ("if what the lawyers said is different than the evidence that you remember, the evidence is what counts.")
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-1270:J:Flaum:aut:T:fnOp:N:2173545:S:0
Seventh Circuit: Pain Center of SE Indiana, LLC v. Origin Healthcare Solutions LLC
Anonymous parties to case are sufficiently de minimis for diversity purposes, so there's jurisdiction.
Actively supported software license is, under state "predominant thrust" test, a contract for services, rather than goods, making the UCC inapplicable.
State tort claims are time-barred, as the plaintiff had knowledge of the harm during the continuing contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-1276:J:Sykes:aut:T:fnOp:N:2173943:S:0
Actively supported software license is, under state "predominant thrust" test, a contract for services, rather than goods, making the UCC inapplicable.
State tort claims are time-barred, as the plaintiff had knowledge of the harm during the continuing contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-1276:J:Sykes:aut:T:fnOp:N:2173943:S:0
Seventh Circuit: Comsys Incorporated v. Frank Pacetti
While the restrictions on freedom of speech while in the employ of the government apply to contracted corporations and their employees, where the line between protected and unprotected speech is ambiguous, qualified immunity protects the government from claims of unlawful retaliation.
As the Fourth Amendment only protects against invasion by public actors, accessing of email records by employee of contracted corporation did not violate; the question of direction by state actors is ambiguous enough to warrant qualified immunity.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-2053:J:Easterbrook:aut:T:fnOp:N:2173897:S:0
As the Fourth Amendment only protects against invasion by public actors, accessing of email records by employee of contracted corporation did not violate; the question of direction by state actors is ambiguous enough to warrant qualified immunity.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-2053:J:Easterbrook:aut:T:fnOp:N:2173897:S:0
Seventh Circuit: Anthony Simpkins v. DuPage Housing Authority
In considering whether a worker is an employee for the purposes of the FSLA, questions of fact are reviewed for clear error, while questions of law are reviewed de novo; at summary judgment, though, since the court makes no findings of fact, the question of genuine issue of material fact is reviewed de novo.
Here, sufficient question for trial.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-2685:J:Bauer:aut:T:fnOp:N:2173923:S:0
Here, sufficient question for trial.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-2685:J:Bauer:aut:T:fnOp:N:2173923:S:0
Seventh Circuit: US v. Larry Norton
Where conflicting testimony at trial suggests that deft was zero to five mph over the speed limit, no clear error in holding that traffic stop at prompting of drug task force didn't violate the Fourth Amendment.
Admission of informant's statements on recording, if hearsay, was harmless error, as they merely provided useful context for others statements.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-2898:J:Kanne:aut:T:fnOp:N:2173776:S:0
Admission of informant's statements on recording, if hearsay, was harmless error, as they merely provided useful context for others statements.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-2898:J:Kanne:aut:T:fnOp:N:2173776:S:0
Sixth Circuit: Randy Pearce v. Chrysler Grp. LLC Pension Plan
Error for District Court to simultaneously bar challenges raised before the magistrate and hold all challenges not raised before the magistrate to be waived.
Employer had a duty to list the firing exception in the summary of plan benefits; this exclusion justifies reformation of the plan, which should be considered by the court sitting in equity as being similar to the fraud element of equitable estoppel.
As Plan provisions enabled the individual to accurately calculate benefits, standalone claim of equitable estoppel is not available.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0114p-06.pdf
Employer had a duty to list the firing exception in the summary of plan benefits; this exclusion justifies reformation of the plan, which should be considered by the court sitting in equity as being similar to the fraud element of equitable estoppel.
As Plan provisions enabled the individual to accurately calculate benefits, standalone claim of equitable estoppel is not available.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0114p-06.pdf
Fourth Circuit: Ohio Valley Environmental v. Scott Pruitt
Plaintiffs have sufficient Article III standing to challenge EPA action affecting a state's rivers when they can establish concrete and particular harms arising from some subset of the rivers.
State's lack of filing is insufficiently clear and ambiguous to trigger the constructive submission of a refusal to file -- the question of agency obligation is therefore one for trial.
http://www.ca4.uscourts.gov/opinions/171430.P.pdf
State's lack of filing is insufficiently clear and ambiguous to trigger the constructive submission of a refusal to file -- the question of agency obligation is therefore one for trial.
http://www.ca4.uscourts.gov/opinions/171430.P.pdf
Fourth Circuit: Alan Metzgar v. KBR, Inc.
Suit against military contractor for trash burn pits and water provision is barred under the political question doctrine, given that the military's control over the processes at issue was plenary and actual.
As the suit is dismissed as nonjusticiable, the pendent FTCA suit is moot -- statutory exemption not reached.
http://www.ca4.uscourts.gov/opinions/171960.P.pdf
As the suit is dismissed as nonjusticiable, the pendent FTCA suit is moot -- statutory exemption not reached.
http://www.ca4.uscourts.gov/opinions/171960.P.pdf
Fourth Circuit: US v. Edward Kehoe
One anonymous tip and one named tip sufficed for the search of the deft, given that the location was known to be the type of bar where people might drink with concealed weapons.
Court's instruction to counsel to consider why a caucasian person might have brought a gun to a predominantly african-american bar was egregious, but it didn't taint the proceeding, as the tips could still be weighed, and argument wasn't impeded.
http://www.ca4.uscourts.gov/opinions/174536.P.pdf
Court's instruction to counsel to consider why a caucasian person might have brought a gun to a predominantly african-american bar was egregious, but it didn't taint the proceeding, as the tips could still be weighed, and argument wasn't impeded.
http://www.ca4.uscourts.gov/opinions/174536.P.pdf
Third Circuit: Gerald Carroll v. E One Inc
Award of fees to deft upon dismissal with prejudice following plaintiffs' mistaken motion to unilaterally dismiss a suit that had advanced past discovery and answer was not an abuse of discretion; plaintiff's lack of investigation, combined with their practices in other districts presented a sufficiently extraordinary circumstance to justify the grant.
http://www2.ca3.uscourts.gov/opinarch/172183p.pdf
http://www2.ca3.uscourts.gov/opinarch/172183p.pdf
Second Circuit: Simon v. City of New York
Denial of qualified immunity for custodial arrest and interrogation over the course of two days on the basis of a warrant issued to produce the arrestee in court at a certain time for a hearing to determine if she should be detained as a material witness. Although the procedures violated a state statute, the variance from the terms on the face of the warrant created a Fourth Amendment violation. Sufficiently clear to be contrary to law despite lack of on-point precedent in the circuit.
Arrestee's return to the police station on the next day was not voluntary, given instruction to do so and reminder that police had an arrest warrant for her.
http://www.ca2.uscourts.gov/decisions/isysquery/c248c3bb-2a44-49a0-968d-6c71d649d45e/1/doc/17-1281_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c248c3bb-2a44-49a0-968d-6c71d649d45e/1/hilite/
Arrestee's return to the police station on the next day was not voluntary, given instruction to do so and reminder that police had an arrest warrant for her.
http://www.ca2.uscourts.gov/decisions/isysquery/c248c3bb-2a44-49a0-968d-6c71d649d45e/1/doc/17-1281_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c248c3bb-2a44-49a0-968d-6c71d649d45e/1/hilite/
First Circuit: US v. Cabrera-Rivera
Given the previous discussion among counsel during which they looked up the relevant statutes on their cellphones, plea bargain was sufficiently knowing and voluntary, despite deft's contention that he understood the term of the sentence to include any periods of supervised release.
Although the rest of the conditions of supervised release don't rise to the level of miscarriage of justice that would justify looking past the appeals waiver in the plea bargain, the unexplained provision barring unapproved contact with deft's children was plain error.
Concurrence: When supervised release conditions don't match the plea deal, contract principles come into play.
Dissent: Conditions weren't a miscarriage of justice, all considered. Seemingly excessive conditions give probation officers useful power.
http://media.ca1.uscourts.gov/pdf.opinions/15-1337P-01A.pdf
Although the rest of the conditions of supervised release don't rise to the level of miscarriage of justice that would justify looking past the appeals waiver in the plea bargain, the unexplained provision barring unapproved contact with deft's children was plain error.
Concurrence: When supervised release conditions don't match the plea deal, contract principles come into play.
Dissent: Conditions weren't a miscarriage of justice, all considered. Seemingly excessive conditions give probation officers useful power.
http://media.ca1.uscourts.gov/pdf.opinions/15-1337P-01A.pdf
First Circuit: In re: App of George W Schlich
The prudential factors in deciding whether to order discovery for use in a foreign proceeding do not imply that either party has an obligation to establish or rebut any factor; the court did not abuse its discretion when deciding that the marginal relevance of the information sought, while sufficient to establish a prima facie claim under the statute, meant that the foreign court would likely not be receptive to the information.
Circuit split flagged.
http://media.ca1.uscourts.gov/pdf.opinions/17-1377P-01A.pdf
Circuit split flagged.
http://media.ca1.uscourts.gov/pdf.opinions/17-1377P-01A.pdf
DC Circuit: Cellco Partnership v. NLRB
When holding that employees dismissal for untruthfulness was pretextual, ALJ impermissibly intruded into business judgment by determining that other violations of company policy that were generally unpunished were more severe.
Discussions involving Section 7 matters are not categorically shielded from such rules.
https://www.cadc.uscourts.gov/internet/opinions.nsf/8BA86CC8FAF54C77852582B10051858A/$file/17-1158-1736658.pdf
Discussions involving Section 7 matters are not categorically shielded from such rules.
https://www.cadc.uscourts.gov/internet/opinions.nsf/8BA86CC8FAF54C77852582B10051858A/$file/17-1158-1736658.pdf
DC Circuit: FTC v. Boehringer Ingelheim Pharmace
Communication of business facts between employees and in-house counsel are subject to privilege where a significant provision of the communication is to obtain or provide legal advice; underlying data, however, is not protected with the communications.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A81BAEEA3D756416852582B100518ADF/$file/16-5356.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/A81BAEEA3D756416852582B100518ADF/$file/16-5356.pdf
DC Circuit: Electronic Privacy Information Center v. FAA
Drone organization doesn't have associational standing to challenge rulemaking, as the commercial concerns are largely outside the scope of the proposed rule, and the personal privacy concerns are speculative.
Also, no organizational standing, as bare assertion of not being able to inform its members is an insufficient showing.
https://www.cadc.uscourts.gov/internet/opinions.nsf/DA5DA28557555A8C852582B100518571/$file/16-1297-1736670.pdf
Also, no organizational standing, as bare assertion of not being able to inform its members is an insufficient showing.
https://www.cadc.uscourts.gov/internet/opinions.nsf/DA5DA28557555A8C852582B100518571/$file/16-1297-1736670.pdf
DC Circuit: Western Organization v. Ryan Zinke
No legal duty to conduct a further environmental review of the federal government's coal regulation scheme, as the adoption of the plan in 1985 was the major federal action that triggered the obligation of environmental review.
https://www.cadc.uscourts.gov/internet/opinions.nsf/FCE27F0BA64C40A1852582B100518555/$file/15-5294-1736645.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/FCE27F0BA64C40A1852582B100518555/$file/15-5294-1736645.pdf
Federal Circuit: Sirona Dental Systems v. Institut Straumann
Patent something or other. (Running a bit late today.)
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1341.Opinion.6-19-2018.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1341.Opinion.6-19-2018.pdf
Tenth Circuit: Rodriguez v. FDIC
As now-bankrupt bank's contractual agreement with its now-bankrupt affiliated group is incredibly complex and ambiguous, the provision of the agreement mandating that any ambiguities be construed in favor of the bank means that there was only an agency relationship between the bank and the organization and the latter has no equitable title to the tax refund due the affiliated organization; the refund now belongs to the bank's FDIC receiver.
https://www.ca10.uscourts.gov/opinions/17/17-1281.pdf
https://www.ca10.uscourts.gov/opinions/17/17-1281.pdf
Tenth Circuit: Odom v. Penske Truck Leasing Co.
Remand to District Court after certified question to examine whether affiliated company had a persona distinct from the employer for purposes of workers compensation.
A motion to dismiss a suit in federal court on the basis that state law deprives state courts of the ability to hear a similar claim asserts not a lack of jurisdiction, but the invocation of a waiveable affirmative defense that should be construed as a motion for summary judgment.
https://www.ca10.uscourts.gov/opinions/17/17-6065.pdf
A motion to dismiss a suit in federal court on the basis that state law deprives state courts of the ability to hear a similar claim asserts not a lack of jurisdiction, but the invocation of a waiveable affirmative defense that should be construed as a motion for summary judgment.
https://www.ca10.uscourts.gov/opinions/17/17-6065.pdf
Tenth Circuit: Lujan-Jimenez v. Sessions
In the state Trespass statute, the ulterior crime intended during the trespass is irrelevant to the theory of the offense -- a jury could convict under different theories of the ulterior crime. The statute is therefore not susceptible to modified categorical review, which, in an immigration context, would have shifted the burden to the petitioner to establish that they had not trespassed in the vehicle to commit an ulterior offense that evinced moral turpitude. Categorically, then, the statute isn't a valid predicate conviction for immigration purposes.
https://www.ca10.uscourts.gov/opinions/16/16-9555.pdf
https://www.ca10.uscourts.gov/opinions/16/16-9555.pdf
Tenth Circuit: Auto-Owners Insurance Company v. Csaszar
Exclusion of driver from specific vehicles under an auto insurance policy bars her recovery as a family member under the uninsured motorist provisions when the driver is injured in an accident not involving the scheduled vehicles.
Exclusion from no-fault coverage when excluded from regular policy doesn't violate public policy.
https://www.ca10.uscourts.gov/opinions/17/17-1075.pdf
Exclusion from no-fault coverage when excluded from regular policy doesn't violate public policy.
https://www.ca10.uscourts.gov/opinions/17/17-1075.pdf
Ninth Circuit: ASARCO, LLC. v. Allied Industrial and Service Workers
If an employer concedes arbitrability of a question, an arbitrator reviewing a collective agreement that prohibits changes in arbitration may reform the terms of the agreement for mutual mistake, subject to rational basis review; such reformation does not offend public policy.
Dissent: As the arbitrator's authority arises from the collective agreement, the no-add clause stripped the arbitrator of jurisdiction sufficient to amend.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/19/16-16363.pdf
Dissent: As the arbitrator's authority arises from the collective agreement, the no-add clause stripped the arbitrator of jurisdiction sufficient to amend.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/19/16-16363.pdf
Seventh Circuit: Adam Delgado v. Merit Systems Protection Board
Where a regulation establishes that claimant has the burden to establish statutorily required administrative exhaustion, the Board cannot require that the employee prove that they typed something into a web form in order to establish jurisdiction.
As the statute only requires that the report must be of something reasonably believed to be a crime, there is no obligation on the reporter to establish all of the elements in the crime in the initial report, or to establish that the report to the Board was identical with the earlier report to internal special counsel.
The exhaustion required by the statute is accomplished by presenting a claim to the special counsel that a legally sophisticated reader could understand and investigate.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:16-1313:J:PerCuriam:aut:T:aOp:N:2173082:S:1
As the statute only requires that the report must be of something reasonably believed to be a crime, there is no obligation on the reporter to establish all of the elements in the crime in the initial report, or to establish that the report to the Board was identical with the earlier report to internal special counsel.
The exhaustion required by the statute is accomplished by presenting a claim to the special counsel that a legally sophisticated reader could understand and investigate.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:16-1313:J:PerCuriam:aut:T:aOp:N:2173082:S:1
Seventh Circuit: Kevin Carmody v. Board of Trustees of the University of Illinois
If a university official provides incorrect information to investigators, it doesn't, standing alone, present a due process issue for trial, as it doesn't affect the notice and fair hearing protections of due process.
University administrators and officers who would have no reason to doubt the proceeding are not liable for a pre-firing due process claim.
Absent specific waiver, claims against the Board of Trustees of a state university are barred by the state's sovereign immunity.
Denial of summary judgment cannot be challenged on appeal, as the matter of law was fact-bound, and the questions went to trial.
Defts did not waive privilege on inadvertently disclosed document, as production was reasonably diligent, and request for claw-back was timely.
Although plaintiff had no obligation to renew objection to in limine ruling excluding certain evidence, there was insufficient proffer beforehand to preserve the issue for appeal. ("Deft construes?")
Although appeal was converted to interlocutory status on remand, and the court was therefore free to consider new documents, where these challenged the appellate holding, they needed to surmount the law of the case doctrine and the mandate doctrine.
Seventh Circuit: Anthony Oliver v. Joint Logistics Managers, Inc
In a S1981 employment discrimination claim, A CBA provision allowing the employer to consider many factors in selecting employees for layoffs does not establish that the employer's use of seniority needs to be defended as nondiscriminatory. (The burden doesn't shift.)
Allegation of discriminatory refusal to rehire is sufficiently rebutted by employer's contention that candidate's skills were insufficient.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1633:J:Kanne:aut:T:fnOp:N:2172953:S:0
Allegation of discriminatory refusal to rehire is sufficiently rebutted by employer's contention that candidate's skills were insufficient.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1633:J:Kanne:aut:T:fnOp:N:2172953:S:0
Seventh Circuit: Bennie Kennedy v. Schneider Electric
Impeachment evidence against claims of opposing witnesses did not rise to the clear and convincing level of deliberate perjury required for fraud on the court; they should have been raised on direct appeal or in a post-judgment motion.
Rule 11 sanctions upheld, as delay in filing couldn't be ascribed to a reluctance to assert such a thing against opposing counsel.
Motion for appellate sanctions needs to be raised in a separate motion; they can't just be mentioned in the briefing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1786:J:Hamilton:aut:T:fnOp:N:2173108:S:0
Rule 11 sanctions upheld, as delay in filing couldn't be ascribed to a reluctance to assert such a thing against opposing counsel.
Motion for appellate sanctions needs to be raised in a separate motion; they can't just be mentioned in the briefing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1786:J:Hamilton:aut:T:fnOp:N:2173108:S:0
Seventh Circuit: Scott Milliman, Sr. v. William Prim
In a S1983 First Amendment retaliatory firing claim, outside contact with the medical examiner and an expert's criticism of their methodology is insufficient to raise a question of pretext for trial when a law enforcement officer is fired based on a medical review that was ordered after he made accusations of highly abnormal corruption in the office.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2687:J:Flaum:aut:T:fnOp:N:2172987:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2687:J:Flaum:aut:T:fnOp:N:2172987:S:0
Seventh Circuit: USA v. Aaron Lamon
A weapons-possession count should not be grouped with a drugs count when tallying up the offense level during sentencing, as the weapons-possession charge incurs a statutory minimum term of imprisonment, removing the justification for such grouping.
Circuit split flagged, and doubled down upon.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2764:J:PerCuriam:aut:T:fnOp:N:2172766:S:0
Circuit split flagged, and doubled down upon.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2764:J:PerCuriam:aut:T:fnOp:N:2172766:S:0
Fifth Circuit: USA v. Latroy Burris
State Robbery statute does not have violence as an element, and, as the relevant standard implies physical force as opposed to offensive touching, can be accomplished without the use of force; it is therefore not a valid ACCA predicate under the elements prong.
Fifth Circuit: Leoncio Garcia v. Wal-Mart Stores Texas, L.L.C.
Where the defendant denies actual knowledge on a state premises-liability tort claim, circumstantial particularized evidence of the hazard's creation suffices to establish an issue for trial where the plaintiff's scenario is more reasonable than the defendant's alternative conjecture.
Fifth Circuit: USA v. Karl Scott
@justicewillett
Conspiracy for Possession with Intent to Distribute doesn't require actual or constructive possession; it suffices that the deft formed an agreement for the others to possess the drugs, knew of that agreement, and voluntarily participated in it.
Aiding and Abetting on the same charge is established when deft associates with a criminal venture, ensures its occurrence, purposefully participated in the venture, and sought to make it succeed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40552-CR0.pdf
Conspiracy for Possession with Intent to Distribute doesn't require actual or constructive possession; it suffices that the deft formed an agreement for the others to possess the drugs, knew of that agreement, and voluntarily participated in it.
Aiding and Abetting on the same charge is established when deft associates with a criminal venture, ensures its occurrence, purposefully participated in the venture, and sought to make it succeed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40552-CR0.pdf
Fifth Circuit: Valero Marketing & Supply Co. v. M/V Almi Sun, IMO
Subcontractor cannot assert lien against vessel, as the vessel did not control the selection or the performance of the subcontractor, and under the statute, a lien only arises against a counterparty to a contract for necessities, or a subcontractor whose selection or performance was controlled by the vessel.
Dissent: There was implicit approval of the selection of the subcontractor. Disputed question of whether this creates a circuit split.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30194-CV0.pdf
Dissent: There was implicit approval of the selection of the subcontractor. Disputed question of whether this creates a circuit split.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30194-CV0.pdf
Federal Circuit: Fastship, LLC v. US
For purposes of the relevant patent statute, an item is manufactured when it is made to include each limitation of the thing invented and is therefore suitable for use.
As the vessel's hull and waterjets had not yet been assembled for use, there was no littoral infringement.
Court's reading of metric rather than imperial units was neither an impermissible use of extrinsic evidence nor a finding of fact -- merely a clarification.
18 million dollar typo in damages calculation corrected.
http://www.cafc.uscourts.gov/sites/default/files/s17-2248_opinion.pdf
Reminder: We don't know many things, but we especially don't know Patent. As always, entertainment purposes only.
As the vessel's hull and waterjets had not yet been assembled for use, there was no littoral infringement.
Court's reading of metric rather than imperial units was neither an impermissible use of extrinsic evidence nor a finding of fact -- merely a clarification.
18 million dollar typo in damages calculation corrected.
http://www.cafc.uscourts.gov/sites/default/files/s17-2248_opinion.pdf
Reminder: We don't know many things, but we especially don't know Patent. As always, entertainment purposes only.
Tenth Circuit: Bedolla-Zarate v. Sessions
Statement in judgment that deft had "pled" guilty to the offense sufficed to establish the plea for purposes of immigration removal.
Strict liability elements of the offense are in both the state statute and the federal generic term; relations with someone under the age of consent suffice for actual abuse.
https://www.ca10.uscourts.gov/opinions/17/17-9519.pdf
Strict liability elements of the offense are in both the state statute and the federal generic term; relations with someone under the age of consent suffice for actual abuse.
https://www.ca10.uscourts.gov/opinions/17/17-9519.pdf
Ninth Circuit: US v. David Rhinehart
Where the terms of a sentencing enhancement predicate are defined in a proximate section of the law, the inquiry into the predicates is not one of subjective relation, but instead the usual categorical comparison to the federal generic crime.
State statutes are categorically broader than the federal offense; disjunctive list following a statement of the offense does not establish divisibility.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-10409.pdf
State statutes are categorically broader than the federal offense; disjunctive list following a statement of the offense does not establish divisibility.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-10409.pdf
Ninth Circuit: US v. Flora Espino
Although the general verdict form erroneously indicated that a finding of not guilty would also be subject to the qualification that it had been found beyond a reasonable doubt, the defendant's rights were not substantially prejudiced, given the instructions at trial.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-50344.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-50344.pdf
Seventh Circuit: Tamara Loertscher v. Eloise Anderson
Challenge to state statue prescribing mandatory drug testing for certain pregnant women dismissed as moot, since the plaintiff has moved out of state and the presumption is against continued drug use.
The case is not protected as capable of repetition, yet evading review, since the harms must be to the same plaintiff.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-18/C:17-1936:J:Ripple:aut:T:fnOp:N:2172278:S:0
The case is not protected as capable of repetition, yet evading review, since the harms must be to the same plaintiff.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-18/C:17-1936:J:Ripple:aut:T:fnOp:N:2172278:S:0
Fifth Circuit: John Uranga, III v. Lorie Davis, Director
Postjudgment motion following denial of Habeas was not a second or successive Habeas filing, as it was a timely challenge of denial of leave to amend.
Fellow prisoner's delivery and signature sufficed for the prison mailbox rule under the next friend doctrine, as the justifying circumstances were disclosed.
Juror was not biased as a matter of law under the implied bias doctrine when it emerged at trial that the deft had driven over and damaged his lawn while fleeing from authorities.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10290-CV1.pdf
Fellow prisoner's delivery and signature sufficed for the prison mailbox rule under the next friend doctrine, as the justifying circumstances were disclosed.
Juror was not biased as a matter of law under the implied bias doctrine when it emerged at trial that the deft had driven over and damaged his lawn while fleeing from authorities.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10290-CV1.pdf
Fifth Circuit: Ronald Salmond, Sr. v. Nancy Berryhill, Acting Cms
ALJ erred in holding that plaintiff's impairment was not severe, as binding circuit precedent classifies any impairment as severe that exceeds a de minimis impairment interfering with work, as record established that the impairment interfered with his work.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10161-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-10161-CV0.pdf
Fourth Circuit: Damon Wilson v. Prince George's County, Md
Officer used excessive force in shooting plaintiff, who at the time, was a burglary and assault suspect about 20 feet from the officer, advancing towards him while stabbing himself repeatedly with a pocketknife.
Qualified immunity, as insufficiently bright line when dealing with questions of mental illness.
Remand to determine state law immunity for precisely parallel violations of State Declaration of Rights.
http://www.ca4.uscourts.gov/opinions/171856.P.pdf
Qualified immunity, as insufficiently bright line when dealing with questions of mental illness.
Remand to determine state law immunity for precisely parallel violations of State Declaration of Rights.
http://www.ca4.uscourts.gov/opinions/171856.P.pdf
Fourth Circuit: Angela Horne v. WTVR, LLC
Finance Director of local school board was appropriately considered a public official for the purposes of a defamation action, as the position invites public scrutiny; categorically, a past felony conviction is relevant in such a case.
News organization's forgoing a lead that the plaintiff had been knowingly hired by the board did not suffice for actual malice, as the allegation was the sort of thing that might be said if the applicant had in fact lied on the application.
Common-law reporter's privilege prevails over speculative assertion that the identity of the source might reveal the actual malice.
http://www.ca4.uscourts.gov/opinions/171483.P.pdf
News organization's forgoing a lead that the plaintiff had been knowingly hired by the board did not suffice for actual malice, as the allegation was the sort of thing that might be said if the applicant had in fact lied on the application.
Common-law reporter's privilege prevails over speculative assertion that the identity of the source might reveal the actual malice.
http://www.ca4.uscourts.gov/opinions/171483.P.pdf
Third Circuit: Joel Doe v. Boyertown Area School District
Use of school privacy facilities by transgender students doesn't present a Title IX claim for non-transgender students in the room, as the policy is of equal applicability to both sexes.
Insufficient injury for state tort claim.
Denial of preliminary injunction was appropriate, given mitigation in place during the litigation.
http://www2.ca3.uscourts.gov/opinarch/173113p.pdf
Insufficient injury for state tort claim.
Denial of preliminary injunction was appropriate, given mitigation in place during the litigation.
http://www2.ca3.uscourts.gov/opinarch/173113p.pdf
Third Circuit: Wendy Osorio Martinez v. US
Jurisdiction-stripping provision of the INA violates the Suspension Clause when immigrant children who have attained a Congressionally designated status of special indigence that cannot be lifted without some due process are prohibited from seeking the writ. The INA preserves both the Congressional power to deport and the Congresional power not to deport.
TRO is justified to bar expedited removal of such children -- on merits, without remand.
http://www2.ca3.uscourts.gov/opinarch/172159p.pdf
TRO is justified to bar expedited removal of such children -- on merits, without remand.
http://www2.ca3.uscourts.gov/opinarch/172159p.pdf
Second Circuit: United States v. Sawyer
District court's re-sentencing on remand from panel holding that the sentence was substantively unreasonable violated the mandate rule, as the sentence was reduced, not for the two factors outlined in the opinion, but for good conduct in prison in the interval.
Remand to different judge.
Dissent: Mandate rule applies to the order, and doesn't require an endorsement of the reasons for the decision. Any subsequent appeal likely to go to a different panel.
http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/1/doc/15-2276_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/1/hilite/
Remand to different judge.
Dissent: Mandate rule applies to the order, and doesn't require an endorsement of the reasons for the decision. Any subsequent appeal likely to go to a different panel.
http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/1/doc/15-2276_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/1/hilite/
Second Circuit: United States v. Jones
Given officer's observation of ammunition in the car, sufficient probable cause for the warrantless search of an automobile parked in a shared residential driveway.
http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/2/doc/16-87_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/2/hilite/
Second Circuit: Giunta, et al. v. Dingman, et al.
Domestic transaction was sufficiently irrevocable to establish culpability under the statute, despite the fact that the transaction would later have to be cleared by foreign banks -- any possible cancellation would come from the closing entity, not the counterparty.
Given the substantial connections to the US, including citizenship of the defts and the place of the transaction, the ties are sufficient to overcome the presumption against extraterritoriality.
http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/3/doc/17-1375_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/3/hilite/
First Circuit: Doherty v. Merck & Co., Inc.
State law defining a live, healthy birth as something without remedy at law does not offend state constitutional guarantees of open courts and jury trials.
First Amendment right to petition incorporates right to the courts, but states can define the boundaries of a claim.
Statute survives rational basis review under the federal right to privacy, as legislature had an interest in medical malpractice reform.
Seventh Amendment not incorporated against the states.
Gender discrimination claim insufficiently developed.
http://media.ca1.uscourts.gov/pdf.opinions/17-1997P-01A.pdf
First Amendment right to petition incorporates right to the courts, but states can define the boundaries of a claim.
Statute survives rational basis review under the federal right to privacy, as legislature had an interest in medical malpractice reform.
Seventh Amendment not incorporated against the states.
Gender discrimination claim insufficiently developed.
http://media.ca1.uscourts.gov/pdf.opinions/17-1997P-01A.pdf
First Circuit: US v. Lee
Out of court statements not subject to the Confrontation Clause and hearsay scrutiny had sufficient indicia of reliability to establish the drug quantities used at sentencing.
http://media.ca1.uscourts.gov/pdf.opinions/17-1490P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1490P-01A.pdf
First Circuit: Dimanche v. MBTA
Sufficient evidence for verdict and damages.
While it was error for the court to limit deft's case to the proffer made in the motion to lift the default judgment, it was insufficiently plain error to reverse.
Addition of a Hostile Work Environment claim on the last day of the trial did not sufficiently prejudice the deft, given lack of objection or proffer at trial.
Circuit precedent holding that S1981 claims do not lie against state actors merely allows dismissal of those claims; it doesn't deprive the courts of subject matter jurisdiction, and since the objection wasn't raised at trial, a general verdict for plaintiff that includes pendent state law claims can stand.
http://media.ca1.uscourts.gov/pdf.opinions/17-1169P-01A.pdf
While it was error for the court to limit deft's case to the proffer made in the motion to lift the default judgment, it was insufficiently plain error to reverse.
Addition of a Hostile Work Environment claim on the last day of the trial did not sufficiently prejudice the deft, given lack of objection or proffer at trial.
Circuit precedent holding that S1981 claims do not lie against state actors merely allows dismissal of those claims; it doesn't deprive the courts of subject matter jurisdiction, and since the objection wasn't raised at trial, a general verdict for plaintiff that includes pendent state law claims can stand.
http://media.ca1.uscourts.gov/pdf.opinions/17-1169P-01A.pdf
DC Circuit: US v. Dawayne Brown
Error on admission of prior conviction was invited, as counsel insisted that it be included.
No plain error in lack of special unanimity instruction.
No error in use of the term "narcotics" in Burglary instruction where illegal nature of drugs was necessarily implied.
Sufficient evidence for constructive possession inside the apartment.
Plea colloquy impermissibly suggested that deft may later challenge the reasonableness of the sentence.
Clear error for the sentencing court not to refer to the sentencing guidelines' recommendation that the sentence be imposed to run concurrent with the prior sentence.
Upward variance insufficiently explained.
Concurrence: acquitted conduct shouldn't be used to increase the sentence.
Dissent in part: Terms of written waiver were plain, upward departure sufficiently explained.
https://www.cadc.uscourts.gov/internet/opinions.nsf/11D51D8162565F72852582AD0054B1E6/$file/15-3056-1736068.pdf
No plain error in lack of special unanimity instruction.
No error in use of the term "narcotics" in Burglary instruction where illegal nature of drugs was necessarily implied.
Sufficient evidence for constructive possession inside the apartment.
Plea colloquy impermissibly suggested that deft may later challenge the reasonableness of the sentence.
Clear error for the sentencing court not to refer to the sentencing guidelines' recommendation that the sentence be imposed to run concurrent with the prior sentence.
Upward variance insufficiently explained.
Concurrence: acquitted conduct shouldn't be used to increase the sentence.
Dissent in part: Terms of written waiver were plain, upward departure sufficiently explained.
https://www.cadc.uscourts.gov/internet/opinions.nsf/11D51D8162565F72852582AD0054B1E6/$file/15-3056-1736068.pdf
DC Circuit: US v. Calvin Stoddard
Description of the investigation to this point and agent's general expertise established sufficient necessity for the wiretap order.
Insufficient evidence for money-laundering conviction, as the vehicle purchase was open, and there was insufficient evidence of intentionally promoting the illegal activity.
Sufficient evidence for conspiracy, despite unreliable witness.
Deft decision not to testify waived challenge to ruling that he could be impeached on cross with prior conviction.
Each member of the conspiracy must have sufficient knowledge or foreseeable understanding of drug amounts triggering mandatory minimums for those minimums to apply. Circuit split flagged.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CF9C2E37DB18AFB9852582AD015-306054B206/$file/0-1736057.pdf
Insufficient evidence for money-laundering conviction, as the vehicle purchase was open, and there was insufficient evidence of intentionally promoting the illegal activity.
Sufficient evidence for conspiracy, despite unreliable witness.
Deft decision not to testify waived challenge to ruling that he could be impeached on cross with prior conviction.
Each member of the conspiracy must have sufficient knowledge or foreseeable understanding of drug amounts triggering mandatory minimums for those minimums to apply. Circuit split flagged.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CF9C2E37DB18AFB9852582AD015-306054B206/$file/0-1736057.pdf
DC Circuit: Old Dominion Electric v. FERC
Filed rate doctrine and the prohibition on retroactive ratemaking barred utility's waiver request, as the extraordinary circumstances encountered were outside the specific mechanisms of the rates.
Market monitor has no legally cognizable interest, and therefore no standing to intervene; amicus instead.
https://www.cadc.uscourts.gov/internet/opinions.nsf/B88CD5B756357184852582AD0054B21C/$file/16-1111-1736083.pdf
Market monitor has no legally cognizable interest, and therefore no standing to intervene; amicus instead.
https://www.cadc.uscourts.gov/internet/opinions.nsf/B88CD5B756357184852582AD0054B21C/$file/16-1111-1736083.pdf
DC Circuit: Duke Energy v. FERC
Utility's insistence on full performance of the facility and characterization of the obligation as "not economic" was not a directive to purchase the costly fuel that would have ensured continued operation, and there was consequently no indemnification.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7B92A385E50E4C04852582AD0054B231/$file/16-1133-1736096.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/7B92A385E50E4C04852582AD0054B231/$file/16-1133-1736096.pdf
DC Circuit: Island Architectural Woodwork v. NLRB
Given the substantially identical business, substantive control, and anti-union sentiment evinced, substantial evidence for Board's finding that diversion of part of production to a building out back supervised by the CEO's daughter was in fact a corporate alter ego.
https://www.cadc.uscourts.gov/internet/opinions.nsf/122F0282A1444FB7852582AD0054EF86/$file/16-1303.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/122F0282A1444FB7852582AD0054EF86/$file/16-1303.pdf
DC Circuit: Tamosiunus v. NLRB
No rational basis to think that Local's collection letter and employer's subsequent collection of full dues from employees who had requested financial core status could not be thought by a rational person to tend to restrain or coerce employees not to enforce their rights under the Act.
https://www.cadc.uscourts.gov/internet/opinions.nsf/9B76B67B9F567375852582AD0054B245/$file/16-1338-1736047.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/9B76B67B9F567375852582AD0054B245/$file/16-1338-1736047.pdf
DC Circuit: US v. Guadalupe Galaviz
When challenging a district court's procedurally correct decision not to lower a sentence imposed with reference to subsequently retroactively amended guidelines ranges, the petitioner must establish that the decision to leave the original sentence in place is itself substantively unreasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/2F95E99A58F5CD4D852582AD0054B25F/$file/16-3052-1736019.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/2F95E99A58F5CD4D852582AD0054B25F/$file/16-3052-1736019.pdf
DC Circuit: US v. Ernest Akers
Retroactive revision in the sentencing guidelines did not modify the career offender guidelines for the offense, even where sentence was imposed according to plea with a substantial downward revision from the career offender level.
https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C57C92A4A99672852582AD0054C99D/$file/17-3095.pdf
DC Circuit: Citizens for Responsibility v. FEC
Given presumption of unreviewability of agency's discretionary enforcement decisions, commission's decision not to enforce after tied vote is not reviewable under organic statute or APA. Plaintiff does not identify the specific statutory provision violated by inaction.
Dissent: It was a reasoned application of facts to law; inaction violates the organic statute, which sets a sufficiently specific task to overcome the presumption.
Federal Circuit: Sifab Solar, Inc. v. US
Where there is no probability of success on the merits, a preliminary injunction is not reviewed under a sliding scale as to the merits.
Congruency between presidential order on tarriffs and the commission's recommendations is a matter for Congress; commission findings did not preclude the tarriff under the NAFTA enablement act.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1718.Opinion.6-15-2018.pdf
Congruency between presidential order on tarriffs and the commission's recommendations is a matter for Congress; commission findings did not preclude the tarriff under the NAFTA enablement act.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1718.Opinion.6-15-2018.pdf
Federal Circuit: Xitronix Corp. v. KLA - Tencor Corp.
Denial of en banc.
Dissent from denial: Where plaintiff does not allege any non-patent-law theory of harm in an antitrust suit, the circuit is not divested of jurisdiction to hear the claim, given statutory grant of jurisdiction.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2746.Order.6-15-2018.1.pdf
Dissent from denial: Where plaintiff does not allege any non-patent-law theory of harm in an antitrust suit, the circuit is not divested of jurisdiction to hear the claim, given statutory grant of jurisdiction.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2746.Order.6-15-2018.1.pdf
Seventh Circuit: Kimberly Flanagan v. Office of the Chief Judge
Plaintiff's report of being told by a co-worker that others were conspiring to kill her was inadmissible double hearsay.
Ominous threats in parking lot were scattered empty threats, insufficient to state a claim for a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-1927:J:PerCuriam:aut:T:fnOp:N:2171849:S:0
Ominous threats in parking lot were scattered empty threats, insufficient to state a claim for a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-1927:J:PerCuriam:aut:T:fnOp:N:2171849:S:0
Seventh Circuit: Wendell Weaver v. Walter Nicholson
State Habeas court reasonably applied governing precedent in holding that disqualification of deft's chosen counsel due to representation of potential prosecution witness didn't violate the right; the third party representation here was much closer than in the precedent to the contrary.
Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.
Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.
Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.
Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.
Admission of prior bad acts claim procedurally defaulted.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0
Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.
Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.
Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.
Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.
Admission of prior bad acts claim procedurally defaulted.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0
Seventh Circuit: J. Donald Henson, Sr. v. HHS
FOIA does not create a cause of action against individual employees.
No error in magistrate's case managment order setting a summary judgment motion prior to discovery.
Agency's search and redactions were proper; plaintiff did not challenge specific exemptions.
No clear error in agency exemptions for attorney/client privilege, trade secret, and personnel reasons.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-1750:J:Hamilton:aut:T:fnOp:N:2171542:S:0
No error in magistrate's case managment order setting a summary judgment motion prior to discovery.
Agency's search and redactions were proper; plaintiff did not challenge specific exemptions.
No clear error in agency exemptions for attorney/client privilege, trade secret, and personnel reasons.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-1750:J:Hamilton:aut:T:fnOp:N:2171542:S:0
Seventh Circuit: Eli Lilly v. Arla Foods, Inc.
Preliminary injunction under the Lanham Act appropriately issued where a single supplier ends use of the product; causation can be inferred from the demonization of the product, and no hard evidence of consumer confusion is necessary at the stage of preliminary injunction.
Injunction was not overbroad in barring a wide variety of cartoon ogres and substantially similar messages.
Concurring in part, concurring in j: District court findings on actual confusion weren't raised in the interlocutory appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-2252:J:Sykes:aut:T:fnOp:N:2171872:S:0
Injunction was not overbroad in barring a wide variety of cartoon ogres and substantially similar messages.
Concurring in part, concurring in j: District court findings on actual confusion weren't raised in the interlocutory appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-2252:J:Sykes:aut:T:fnOp:N:2171872:S:0
Seventh Circuit: Part-time Faculty Association v. Columbia College Chicago
Where a Board representation decision partially grounded in an interpretation of the terms of the CBA conflicts with a subsequent artbitrator's ruling on the question of representation, the latter is unenforceable as to the representation, as the parties in the second proceeding are bargaining for the arbitrator's opinion, not the Board's interpretation of the Act.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-3492:J:Flaum:aut:T:fnOp:N:2171484:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-3492:J:Flaum:aut:T:fnOp:N:2171484:S:0
Fourth Circuit: Rhonda L. Hutton v. National Board of Examiners
Where the fraudulent opening of lines of credit in plaintiffs' name can be plausibly traced to the deft's data breach, plaintiffs have suffered, at minimum, sufficient concrete and particular imminent harm to state a claim.
Fourth Circuit: Plaintiffs Appealing CMO 100 v. Pfizer
No error in exclusion of expert testimony under Daubert where statistician performed a wide range of analyses to verify the legitimacy of the analysis, but excluded the other tests from testimony, and further impermissibly used an indicator for the medical condition as evidence of the medical condition.
No error in exclusion of second expert where stepped dosage conclusions were impermissibly based on conclusions as to lowest dosage that were based on a statistically insignificant association, since this manner of analysis is not generally accepted.
No error in exclusion of third expert, as differential diagnosis methodology did not sufficiently account for alternative causation.
Deft admissions almost never sufficient basis to survive summary judgment, where the claim is too complex for the average juror.
Summary judgment grant across the MDL was an appropriate use of judicial resources.
http://www.ca4.uscourts.gov/opinions/171140.P.pdf
No error in exclusion of second expert where stepped dosage conclusions were impermissibly based on conclusions as to lowest dosage that were based on a statistically insignificant association, since this manner of analysis is not generally accepted.
No error in exclusion of third expert, as differential diagnosis methodology did not sufficiently account for alternative causation.
Deft admissions almost never sufficient basis to survive summary judgment, where the claim is too complex for the average juror.
Summary judgment grant across the MDL was an appropriate use of judicial resources.
http://www.ca4.uscourts.gov/opinions/171140.P.pdf
Fourth Circuit: Shari Renee Lauflett v. Commissioner
Jurisdiction grant inside parentheticals in a prefatory part of the statute makes appeals time limit jurisdictional; in addition to plain language, the fact that collections actions can't be enjoined absent a timely filing, and agency can't collect until after the cutoff establish the reading.
http://www.ca4.uscourts.gov/opinions/171986.P.pdf
http://www.ca4.uscourts.gov/opinions/171986.P.pdf
Fourth Circuit: US v. Darra Lee Shephard
No error in sentencing determination that vulnerable victims were targeted by telemarketing scheme and deft was aware of theiir vulnerability, as scheme targeted those who had already fallen for it once.
No error in loss calculation that incorporated uncharged wire transfers, as they were clear from the face of the indictment.
No error in sentencing finding that deft was culpable for conspiracy until 2015, despite ending work there in 2012, as deft stipulated to involvement in the facts incorporated in the plea, and, in the alternative, exit wasn't strong enough to end conspiracy liability.
http://www.ca4.uscourts.gov/opinions/174148.P.pdf
No error in loss calculation that incorporated uncharged wire transfers, as they were clear from the face of the indictment.
No error in sentencing finding that deft was culpable for conspiracy until 2015, despite ending work there in 2012, as deft stipulated to involvement in the facts incorporated in the plea, and, in the alternative, exit wasn't strong enough to end conspiracy liability.
http://www.ca4.uscourts.gov/opinions/174148.P.pdf
Fourth Circuit: Maricela Martinez v. Jefferson B. Sessions III
As no jury unanimity as to the theory of the offense is required, statute is not susceptible to modified categorical review.
Assuming that the 'substantial erosion' of property rights required for the agency standard of theft convictions is valid and applies here, since the law sweeps beyond that to incorporate things like joyriding, the agency erred in holding the state conviction to be a crime of moral turpitude justifying refusal of withholding of removal.
http://www.ca4.uscourts.gov/opinions/171301.P.pdf
Assuming that the 'substantial erosion' of property rights required for the agency standard of theft convictions is valid and applies here, since the law sweeps beyond that to incorporate things like joyriding, the agency erred in holding the state conviction to be a crime of moral turpitude justifying refusal of withholding of removal.
http://www.ca4.uscourts.gov/opinions/171301.P.pdf
Third Circuit: USA v. Juan Ramos
Statute is divisible for purposes of modified categorical review despite the fact that governing precedent allows indictment and conviction without requiring the finder of fact to agree on the theory of the crime; i.e., a jury could split between the elements.
State statute categorically a crime of violence, as it is inconceivable that someone could try to injure another with a deadly weapon without using force.
http://www2.ca3.uscourts.gov/opinarch/172720p.pdf
State statute categorically a crime of violence, as it is inconceivable that someone could try to injure another with a deadly weapon without using force.
http://www2.ca3.uscourts.gov/opinarch/172720p.pdf
Eleventh Circuit: David Dwayne Cassady v. Steven D. Hall, et al
Post-judgment motion to District Court seeking garnishment of funds due state inmate from a state employee is construed as a suit for the purposes of the Eleventh Amendment when it makes some claim, demand, or request against the state.
State did not waive immunity by authorizing garnishment for funds due state employees or officials as a result of services performed, and under the Rules Enablement Act, Rule 69 cannot serve as a modification or abridgment of any substantive rights.
http://media.ca11.uscourts.gov/opinions/pub/files/201810667.pdf
State did not waive immunity by authorizing garnishment for funds due state employees or officials as a result of services performed, and under the Rules Enablement Act, Rule 69 cannot serve as a modification or abridgment of any substantive rights.
http://media.ca11.uscourts.gov/opinions/pub/files/201810667.pdf
Federal Circuit: Sunpreme, Inc. v. US
The residual clause of the Trade Court's jurisdictional statute cannot be invoked if there is a practicable alternative basis for jurisdiction elsewhere in the statute; the court therefore did not have jurisdiction to issue an injunction during the pendency of an agency scope determination, the completion of which could then be challenged under the statute.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1338.Opinion.6-14-2018.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1338.Opinion.6-14-2018.pdf
Federal Circuit: Land of Lincoln Mutual Health v. US
No contract-based Takings claim, as there was no contract.
Legislative enactment does not create a property interest cognizable under the Takings Clause.
Dissent: Contract.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1224.Opinion.6-14-2018.pdf
Legislative enactment does not create a property interest cognizable under the Takings Clause.
Dissent: Contract.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1224.Opinion.6-14-2018.pdf
Federal Circuit: Moda Health Plan v. US
Where a statute commits to the government's disbursal of funds from a single program according to a certain formula, subsequent budgetary riders need not place a categorical ban on payment from other sources when limiting the payouts from that program in order to function as a sufficiently clear implied repeal of the initial commitment.
Absent the trappings of a contractual agreement or some sign of intent to enter into a contract, government legislation and subsequent agency rulemaking and conduct does not indicate an intention to enter into a binding contract.
Dissent: Insufficiently clear statement of repeal, explicit attempts at repeal did not pass, insurers had completed their part of the deal, judgment fund is available, contract existed.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1994.Opinion.6-14-2018.pdf
Absent the trappings of a contractual agreement or some sign of intent to enter into a contract, government legislation and subsequent agency rulemaking and conduct does not indicate an intention to enter into a binding contract.
Dissent: Insufficiently clear statement of repeal, explicit attempts at repeal did not pass, insurers had completed their part of the deal, judgment fund is available, contract existed.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1994.Opinion.6-14-2018.pdf
Tenth Circuit: United States v. Driscoll
When determining the timeliness of a Habeas petition, the critical element is the right asserted; the question of whether an ambiguous conviction is or is not contradicted by the new rule is a matter for merits consideration.
As the petitioner was convicted under a statute broader than the generic offense, it is more likely than not that they were convicted under the unconstitutional residual clause, justifying the granting of the writ.
On merits, granted as not harmless error.
https://www.ca10.uscourts.gov/opinions/16/16-8118.pdf
As the petitioner was convicted under a statute broader than the generic offense, it is more likely than not that they were convicted under the unconstitutional residual clause, justifying the granting of the writ.
On merits, granted as not harmless error.
https://www.ca10.uscourts.gov/opinions/16/16-8118.pdf
Seventh Circuit: Thaddeus Jones v. Michelle Qualkinbush
The right to vote on policy questions in a referendum is a creature of state, not federal, law, and the referendum process is not a public forum under the First Amendment, so a state entity might legitimately dominate the process if there is a reasonable basis for it to do so.
A politician disadvantaged by the state's manipulation of the referendum process is a class of one for Equal Protection purposes, and where the conduct is valid as a general matter, the question is not justiciable. (This last bit is clearly implied, but not explicitly stated in those terms.)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-14/C:17-1227:J:Easterbrook:aut:T:fnOp:N:2170958:S:0
A politician disadvantaged by the state's manipulation of the referendum process is a class of one for Equal Protection purposes, and where the conduct is valid as a general matter, the question is not justiciable. (This last bit is clearly implied, but not explicitly stated in those terms.)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-14/C:17-1227:J:Easterbrook:aut:T:fnOp:N:2170958:S:0
Sixth Circuit: Sazerac Brands, LLC v. Peristyle, LLC
Where a company acquires a historic manufacturing site, a plaintiff claiming infringement of the trademarked name must, to state claim, establish that the mark associated with the site was not used merely in a good-faith descriptive or geographical sense.
(Though it says that unfair use is part of the necessary claim, the interlocutory order here affects a partial summary judgment.)
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0113p-06.pdf
(Though it says that unfair use is part of the necessary claim, the interlocutory order here affects a partial summary judgment.)
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0113p-06.pdf
Fifth Circuit: Franchise Svc of North America v. United States Trustee
As shareholder rights under the corporate charter are a matter of state law and the power of a corporation to invoke bankruptcy protection arises from local law, the federal public policy interest in assuring the bankruptcy proceeding does not preclude a shareholder from blocking the bankruptcy filing where that shareholder is also a creditor, so long as there is no evidence of bad faith in the acquisition of the blocking shareholder rights.
Whether the acquisition of such rights under the charter violates state law is not before the court, as the parties don't raise it here.
Simple acquisition of a controlling interest in a stock class is insufficient proof of corporate control for purposes of judging breach of fiduciary duty; blocking the filing is not per se proof of such control.
http://www.ca5.uscourts.gov/opinions/pub/18/18-60093-CV0.pdf
Whether the acquisition of such rights under the charter violates state law is not before the court, as the parties don't raise it here.
Simple acquisition of a controlling interest in a stock class is insufficient proof of corporate control for purposes of judging breach of fiduciary duty; blocking the filing is not per se proof of such control.
http://www.ca5.uscourts.gov/opinions/pub/18/18-60093-CV0.pdf
Fifth Circuit: Gail McClendon v. USA
Regardless of the ultimate burden at trial, a deft's reasonably supported assertion that less than the full amount of taxes due was available for use in the company's accounts presents a genuine issue of material fact for trial.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20174-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20174-CV0.pdf
Fifth Circuit: USA v. Ronald Ary
Under both state and federal law, a state deferred adjudication for this type of crime qualifies as a valid predicate conviction for sentencing purposes.
An indictment that omits this element of the offense does not offend Due Process, since Apprendi and its progeny specifically except prior convictions.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10082-CR0.pdf
An indictment that omits this element of the offense does not offend Due Process, since Apprendi and its progeny specifically except prior convictions.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10082-CR0.pdf
Third Circuit: USA v. Christopher Welshans
Where deft stipulated to the prohibited content, error to admit prejudicial videos and refer to them in closing, but no Due Process violation given the overwhelming evidence of guilt.
Deft's deletion of files upon learning that the police were on the way was sufficiently contemporaneous with arrest to qualify for the Obstruction sentencing enhancement, but as the files were simply moved to the recycle file, there was no material hindrance.
Concur/Dissent: Actions upon learning of investigation are not sufficiently contemporaneous with arrest.
http://www2.ca3.uscourts.gov/opinarch/164106p.pdf
Deft's deletion of files upon learning that the police were on the way was sufficiently contemporaneous with arrest to qualify for the Obstruction sentencing enhancement, but as the files were simply moved to the recycle file, there was no material hindrance.
Concur/Dissent: Actions upon learning of investigation are not sufficiently contemporaneous with arrest.
http://www2.ca3.uscourts.gov/opinarch/164106p.pdf
Ninth Circuit: Clifford Tindall v. First Solar Inc.
Where FRCP indicates abuse of discretion review, but the dismissal for not stating a claim would usually prompt de novo, circuit precedent compels a three-judge panel to review the claim for abuse of discretion.
Under Delaware law, the Board's role in financial disclosures and press releases is not a business judgment for the purposes of assessing demand futility, since the releases and disclosures are snapshots of past business decisions. The correct test looks to general oversight.
Where a court denies leave to amend in a situation where it is usually granted absent prejudice, but the rule merely permits granting for good cause, there is no need to cite or discuss the rule, so long as there is no abuse of discretion of the good cause standard.
Eighth Circuit: Stuart Wright v. United States of America
Local rules mandate that the reply brief to a motion for summary judgment must be in a certain form, not that it must contest all statements of fact not waived.
Under law of the case, basketball player falsely arrested justified the subsequent restraint on his liberty by briefly backing away from the police; this presents no issue for trial.
As the arrest and detention were justified, no abuse of process.
Arrest and tasing midcourt did not rise to the level of assault, as the officers thought that they were arresting a dangerous person.
http://media.ca8.uscourts.gov/opndir/18/06/172274P.pdf
Under law of the case, basketball player falsely arrested justified the subsequent restraint on his liberty by briefly backing away from the police; this presents no issue for trial.
As the arrest and detention were justified, no abuse of process.
Arrest and tasing midcourt did not rise to the level of assault, as the officers thought that they were arresting a dangerous person.
http://media.ca8.uscourts.gov/opndir/18/06/172274P.pdf
Eighth Circuit: Jonathan Ervin v. Michael Bowersox
State's use of a video at trial showing the invocation of previously waived Miranda rights in the course of an interrogation and references to the video in opening and closing statements were not an unreasonable application of clearly established federal law.
Factual determinations not unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/171743P.pdf
Factual determinations not unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/171743P.pdf
Eighth Circuit: United States v. Hosea Swopes
State statute is a valid ACCA predicate.
Per curiam, simple assertion of precedent.
http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf
Per curiam, simple assertion of precedent.
http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf
Eighth Circuit: Jim Sciaroni v. Target Corporation
Class appropriately certified despite court's mistaken finding that class members without present injury would be entitled to a pro rata share of the remainder of the fund.
Class appropriately certified despite potential inter-class conflicts over later-arising harms from the data breach, since all class members suffered the same injury at the same time.
29% Fee award can appropriately be based on a total that includes administrative costs; fees not substantively unreasonable.
Settlement not unfair, despite alleged subtle signs of collusion.
http://media.ca8.uscourts.gov/opndir/18/06/153909P.pdf
Class appropriately certified despite potential inter-class conflicts over later-arising harms from the data breach, since all class members suffered the same injury at the same time.
29% Fee award can appropriately be based on a total that includes administrative costs; fees not substantively unreasonable.
Settlement not unfair, despite alleged subtle signs of collusion.
http://media.ca8.uscourts.gov/opndir/18/06/153909P.pdf
Fifth Circuit: Esther White v. Cigna Group Insurance
Abuse of discretion for the Plan Administrator not to mention insurer's medical report asserting that the level of drug intoxication was impossible to determine given the tests run, withhold the report from discovery, and deny the claim.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30356-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-30356-CV0.pdf
Fifth Circuit: USA v. Candido Hernandez-Avila
Given the recent holding of the US Supreme Court defining the age of consent for the general offense of statutory rape, the state statute is not a valid sentencing predicate, as the state statute is stricter, and a strict liability offense.
Government's post-briefing argument that the crime is a crime of violence under the instant provision of the sentencing guidelines refers to an earlier version of the guidelines with materially different language -- the older version cites crimes with a "substantial risk" of violence.
Contention that the sentence would be justified under another part of the guidelines is not properly before the court, as the question is simply whether the current sentence was correctly imposed.
http://www.ca5.uscourts.gov/opinions/pub/16/16-51009-CR0.pdf
Government's post-briefing argument that the crime is a crime of violence under the instant provision of the sentencing guidelines refers to an earlier version of the guidelines with materially different language -- the older version cites crimes with a "substantial risk" of violence.
Contention that the sentence would be justified under another part of the guidelines is not properly before the court, as the question is simply whether the current sentence was correctly imposed.
http://www.ca5.uscourts.gov/opinions/pub/16/16-51009-CR0.pdf
Fifth Circuit: Edward Busby v. Lorie Davis, Director
Assertion of actual innocence in a second state Habeas that was dismissed summarily with an indication that the court did not reach the merits was not dismissed for procedural default, as the briefing indicates (which would at any rate be a reasonable ruling, since Federal courts are permitted to do such things), but for the alternate reason in the statute, namely that no reasonable juror would have accepted the claim. As this alternate ground is not challenged, the state denial was not an unreasonable application of facts or federal law.
Second non-AEDPA federal Habeas asserting identical claims is denied on merits.
Ineffective Assistance claim based on direct appeal was not raised in initial state Habeas -- ineffective assistance in collateral proceedings is insufficient excuse for the default of claim, as there is no right to counsel at that stage.
No prejudice from ineffective assistance at trial.
Editorial note: End the death penalty.
First Circuit: US v. Gonzalez-Negron
Souter, by designation.
No plain error in court's acceptance of plea for possession of a weapon in furtherance of a drug crime where the gun and the drugs were found in separate areas of the residence, given modificaitons to gun and gov't proffer to prove role in drug scheme.
No plain error in colloquy's omission of clarification of "in furtherance," as it is a plain term, and there was no showing that deft would have changed the plea.
http://media.ca1.uscourts.gov/pdf.opinions/17-1302P-01A.pdf
No plain error in court's acceptance of plea for possession of a weapon in furtherance of a drug crime where the gun and the drugs were found in separate areas of the residence, given modificaitons to gun and gov't proffer to prove role in drug scheme.
No plain error in colloquy's omission of clarification of "in furtherance," as it is a plain term, and there was no showing that deft would have changed the plea.
http://media.ca1.uscourts.gov/pdf.opinions/17-1302P-01A.pdf
First Circuit: US v. Benitez-Beltran
Territory's crime of Attempted Murder is a valid predicate offense, since (1) Territory's definition of murder requires purposeful or knowing conduct, and the generic offense merely requires reckless indifference; and (2) the act or omission required for the attempt could be counted as the substantial step in furtherance, cf. MPC.
Government's mention of impermissible sentencing factors at sentencing was insufficient to establish that the court relied on them in sentencing.
No substantive error in upward variance, as court developed a theory of recidivism; no error in court's using arguments offered in mitigation as factors weighing in favor of a higher sentence, given the concern with recidivism.
No substantive error for a ten-year felon-in-possession sentence to be served consecutively to the existing 90 year sentence for aggravated robbery.
http://media.ca1.uscourts.gov/pdf.opinions/17-1161P-01A.pdf
Government's mention of impermissible sentencing factors at sentencing was insufficient to establish that the court relied on them in sentencing.
No substantive error in upward variance, as court developed a theory of recidivism; no error in court's using arguments offered in mitigation as factors weighing in favor of a higher sentence, given the concern with recidivism.
No substantive error for a ten-year felon-in-possession sentence to be served consecutively to the existing 90 year sentence for aggravated robbery.
http://media.ca1.uscourts.gov/pdf.opinions/17-1161P-01A.pdf
First Circuit: US v. Serrano-Acevedo
Insufficient articulable grounds for a protective sweep where two armed men robbed a bank, and both had been detained prior to the sweep through the house.
Subsequent consent to search was tainted by the fruits of the sweep.
Court's instruction sufficient to cure in-court statement by police officer saying that the robbers had been identified to him by name by an informant.
Other hearsay harmless.
http://media.ca1.uscourts.gov/pdf.opinions/16-2009P-01A.pdf
Subsequent consent to search was tainted by the fruits of the sweep.
Court's instruction sufficient to cure in-court statement by police officer saying that the robbers had been identified to him by name by an informant.
Other hearsay harmless.
http://media.ca1.uscourts.gov/pdf.opinions/16-2009P-01A.pdf
First Circuit: US v. Tanco-Pizarro
In a revocation of supervised release proceeding, challenges raised for the first time in a motion to reconsider the sentence are not preserved for appeal.
Absent a showing of potentially exculpatory evidence, no plain error in denial of discovery and continuance in revocation hearing, given indictment handed down in a parallel proceeding,.
No plain error in considering the magnitude of the offense and the need for just punishment in the revocation proceeding, as they speak to the magnitude of the breach of trust in the parole violation.
Prior compliance with parole waived for not being raised below.
No plain error in an upward variance five times the upper limit of the range, as adequately discussed at sentencing.
Substantively, no abuse of discretion in the sentence, as it's not implausible or indefensible.
Tenth Circuit: Perry v. Durborow
Challenges to questions of fact in interlocutory petition for relief seeking qualified immunity do not remove jurisdiction where counsel stipulates to the facts at issue during spoken arguments.
Qualified immunity for supervisory liability of detainee rape, as a general prohibition on deliberate indifference to sexual abuse didn't sufficiently prohibit supervision of a facility where male guards encountered female prisoners outside the view of security cameras.
https://www.ca10.uscourts.gov/opinions/17/17-5023.pdf
Qualified immunity for supervisory liability of detainee rape, as a general prohibition on deliberate indifference to sexual abuse didn't sufficiently prohibit supervision of a facility where male guards encountered female prisoners outside the view of security cameras.
https://www.ca10.uscourts.gov/opinions/17/17-5023.pdf
Eighth Circuit: Mary Brazil v. Arkansas Dept of Human Service
In a suit alleging discrimination in employment practices, a material change in the plaintiff's working situation moots a claim of retaliation that seeks injunctive relief where there is only a speculative possibility that the employee might be transferred back to her old position.
http://media.ca8.uscourts.gov/opndir/18/06/172229P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/172229P.pdf
Eighth Circuit: Leslie Grussing v. Orthopedic and Sports Medicine
No error in trial court's refusal to allow questioning of an expert on a line of inquiry that had been established by another witness.
In a diversity action, federal law governs the review of counsel statements in closing arguments.
Given curative instruction, deft counsel's mis-characterization of the burden of proof was not plainly injurious.
http://media.ca8.uscourts.gov/opndir/18/06/172228P.pdf
In a diversity action, federal law governs the review of counsel statements in closing arguments.
Given curative instruction, deft counsel's mis-characterization of the burden of proof was not plainly injurious.
http://media.ca8.uscourts.gov/opndir/18/06/172228P.pdf
Eighth Circuit: Missourians for Fiscal, etc. v. James Klahr
State law prohibiting the formation of political committees after 30 days before an election is subject to strict scrutiny, as the law speaks to formation, a precondition for speech, and not disclosure.
The law is overbroad, as citizens might have cause to speak within the prohibited window, there are subsequent reporting requirements closer to the election, and past practice of the agency in merely imposing a $1,000 fine does not save the act.
http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf
The law is overbroad, as citizens might have cause to speak within the prohibited window, there are subsequent reporting requirements closer to the election, and past practice of the agency in merely imposing a $1,000 fine does not save the act.
http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf
Eighth Circuit: In re Sealed Case
Where a court varies downward from a statutory maximum which is beneath the published guidelines range and the sentence is later further reduced on the government's motion, the sentence is not sufficiently based on the published range to merit relief after subsequent changes to that range.
http://media.ca8.uscourts.gov/opndir/18/06/164456P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/164456P.pdf
Seventh Circuit: USA v. Todd Dyer
Where deft challenges plea at trial by asserting grounds of innocence, an appellate challenge to the plea on other grounds is reviewed for plain error.
No plain error in magistrate's acceptance of plea where deft made one or two word answers in colloquy and court did not inquire into possible bipolar disorder.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-13/C:17-1776:J:PerCuriam:aut:T:fnOp:N:2169817:S:0
No plain error in magistrate's acceptance of plea where deft made one or two word answers in colloquy and court did not inquire into possible bipolar disorder.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-13/C:17-1776:J:PerCuriam:aut:T:fnOp:N:2169817:S:0
Sixth Circuit: Acosta v. Cathedral Buffet Inc.
Following reversal and remand, the appellate court should refrain from granting leave to file a motion at the Circuit level for fees under the statute; the District Court is better positioned to judge the matter.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0112p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0112p-06.pdf
Fifth Circuit: Innova Hospital San Antonio LP v. Blue Cross & Blue Shield
ERISA action need not identify the specific language of every plan provision at issue to state a claim, so long as the pleading is not overly conclusory; the suit might be resolved using representative terms.
Under state law, similar analysis applied to the claim for breach of contract.
As a suit for monetary damages is possible, a suit for breach of fiduciary duty is barred by the statute and precedent.
No error in denial of leave to amend second amended complaint, as the request did not discuss the legal standard for untimely leave to amend.
http://www.ca5.uscourts.gov/opinions/pub/14/14-11300-CV0.pdf
Under state law, similar analysis applied to the claim for breach of contract.
As a suit for monetary damages is possible, a suit for breach of fiduciary duty is barred by the statute and precedent.
No error in denial of leave to amend second amended complaint, as the request did not discuss the legal standard for untimely leave to amend.
http://www.ca5.uscourts.gov/opinions/pub/14/14-11300-CV0.pdf
Fifth Circuit: USA v. Richard Evans
No plain error in conviction where the procedures of the medical practice were the subject of testimony and the link to the individual cases in the indictment was merely the patients' medical files.
Finder of fact might reasonably have found the non-narcotics elements of the medical practice to be cookie-cutter and superficial cover for the actual work of the practice.
Even absent a showing as to the amount of "clean money" in a commingled account, no plain error in the aggregation of all withdrawals in computing the total amount of withdrawals to determine if the amount withdrawn must necessarily have included the criminal proceeds.
No plain error in mail fraud conviction where finder of fact might have found an implied promise in the patient communications of a proper standard of care.
Witness' opinion of illicit nature of practice sufficiently based in commonsensical inference.
Arguendo, if Confrontation Clause was violated by not allowing deft to cross after prosecution assertion in direct that witness (who had been notified that she was a target of an investigation) was not a suspect; testimony was cumulative.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20159-CR0.pdf
Finder of fact might reasonably have found the non-narcotics elements of the medical practice to be cookie-cutter and superficial cover for the actual work of the practice.
Even absent a showing as to the amount of "clean money" in a commingled account, no plain error in the aggregation of all withdrawals in computing the total amount of withdrawals to determine if the amount withdrawn must necessarily have included the criminal proceeds.
No plain error in mail fraud conviction where finder of fact might have found an implied promise in the patient communications of a proper standard of care.
Witness' opinion of illicit nature of practice sufficiently based in commonsensical inference.
Arguendo, if Confrontation Clause was violated by not allowing deft to cross after prosecution assertion in direct that witness (who had been notified that she was a target of an investigation) was not a suspect; testimony was cumulative.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20159-CR0.pdf
Third Circuit: Marie Gillispie v. Regionalcare Hospital Partners
Whistleblower who merely objected in internal meetings to non-reporting of facts already known to the decisionmakers does not qualify for the protections of the federal statute.
State common-law employment protections are preempted by the state whistleblower statute.
http://www2.ca3.uscourts.gov/opinarch/164307p.pdf
State common-law employment protections are preempted by the state whistleblower statute.
http://www2.ca3.uscourts.gov/opinarch/164307p.pdf
Second Circuit: Edrei v. Bratton
A 14th Amendment S1983 action alleging excessive force in the use of acoustic weapons states a claim where the force is intentionally applied and the officer is aware of its unreasonable use, given lack of exigency, proportionality of response, and mitigation.
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/1/doc/17-2065_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/1/doc/17-2065_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/1/hilite/
Second Circuit: ING Bank N.V. v. M/V TEMARA
A statutory maritime lien arises by operation of law when a vessel contracts for covered supplies and the supplies are delivered pursuant to the contract, regardless of whether the eventual provision occurred through a chain of intermediaries.
The subcontractor is operating pursuant to another's agreement with the party to the contract with the vessel, and therefore the subcontractor cannot assert a lien against the vessel.
Equitable remedies such as unjust enrichment are not a basis for a judgment against the vessel, as the lien is an in rem action.
Error for the District Court to issue a sua sponte summary judgment absent notice to parties where a reasonable possibility existed of a factual dispute.
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/2/doc/16-3923_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/2/hilite/
The subcontractor is operating pursuant to another's agreement with the party to the contract with the vessel, and therefore the subcontractor cannot assert a lien against the vessel.
Equitable remedies such as unjust enrichment are not a basis for a judgment against the vessel, as the lien is an in rem action.
Error for the District Court to issue a sua sponte summary judgment absent notice to parties where a reasonable possibility existed of a factual dispute.
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/2/doc/16-3923_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/2/hilite/
Second Circuit: U.S. v. Daugerdas
Although, since the interest attached at the time of the offense, the government has a superior claim to the forfeited funds, if the recipient of a gratuitous transfer can allege facts sufficient to infer that the transfer preceded the criminal acts, Due Process and the statute both allow the third party, despite the issues resolved in the criminal action, to claim a superior interest, since commingling of funds would bar the relation-back of the government's interest.
"Pled."
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/doc/17-898_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/hilite/
"Pled."
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/doc/17-898_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/hilite/
Eleventh Circuit: Sandra Slater v. U.S. Steel Corporation
Maintenance of inconsistent positions in civil litigation (e.g., not disclosing a suit for damages in a bankruptcy litigation) is not in itself making a sham of the judicial system; the court, when making such a determination, must consider the plaintiff/petitioner's sophistication and the conduct of the suit.
11.uscourts.gov/opinions/pub/files/201215548.op2.pdf
11.uscourts.gov/opinions/pub/files/201215548.op2.pdf
Eleventh Circuit: US v. Ramon Cobena Duenas
Sufficient evidence for a courier's conviction for counterfeiting conspiracy under the prudent smuggler doctrine where the prosecution demonstrates a plenitude of contacts among the organization, the courier evinces an awareness of the unlawful nature of the operation, and the courier's actions are critical to the success of the operation.
http://media.ca11.uscourts.gov/opinions/pub/files/201710509.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201710509.pdf
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