Hiatus

Brief hiatus, as there are other demands on the attention.  Still a going concern.  Cheers.

CB
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http://www.ca5.uscourts.gov/opinions/pub/17/17-60774-CV0.pdf

http://www.ca5.uscourts.gov/opinions/pub/18/18-40270-CV0.pdf

 http://media.ca8.uscourts.gov/opndir/18/09/172759P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/181725P.pdf

 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/24/16-56633.pdf

https://www.ca10.uscourts.gov/opinions/17/17-1236.pdf

Quick work tonight, however slow -- travelling, distracted, what have you.  Just batting practice.

-CB
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Sixth Circuit: Tenn. Clean Water Network, et al. v. TVA

As the Act requires a point source, not seeping groundwater or permeable hydrological network, the pollution here is outside of its scope.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0214p-06.pdf
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Sixth Circuit: Ky. Waterways Alliance v. Kentucky Util. Co.

Act does not cover groundwater pollution or complex hydrological networks; the precedent suggesting this in fact discusses interconnected larger waters, and federalism and practical enforcement concerns dictate a narrower reading of the regulated bodies of water.

Prudential abstention is not available to the court where a citizen cause of action is directly created by a statute that makes use of factors that would suggest abstention.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0213p-06.pdf




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Third Circuit: Holly Judge v. Shikellamy School District


Presumptively valid and willful resignation forecloses any direct claim of discriminatory duress.  Multi-factor test from 9th governs.

http://www2.ca3.uscourts.gov/opinarch/172189p.pdf


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Third Circuit: Robert Schultz, Jr. v. Midland Credit Management


FDCPA Act boilerplate debt collector's letter threatening reporting to the IRS when the matter in question was less than the amount the IRS required be reported states a claim, and may later prevail,  as it only takes one juror.

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Third Circuit: USA v. Reynaldo Rivera-Cruz


When the statutory maximum or minimum sentence is outside of the guidelines range, the range drops out of the sentencing scheme.  Subsequent revisions to the guidelines therefore do not serve as the basis for an appeal of the sentence.

http://www2.ca3.uscourts.gov/opinarch/173448p.pdf


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DC Circuit: Blogger: ANR Storage Company v. FERC

Where two companies appear to have virtually identical shares in their relevant markets, it is an abuse of discretion for an agency to allow only one of the two to charge market rates without stating a reasonable justification for the distinction.

https://www.cadc.uscourts.gov/internet/opinions.nsf/9E0C54378AB5C5A18525830F004E9C61/$file/16-1285-1751902.pdf
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Eleventh Circuit: USA v. Jason Alexander Phifer

When a deft faces criminal or civil penalties, deference to an agency's interpretations of its own regulations is inapposite, as an agency has an obligation to clearly state the rule.

http://media.ca11.uscourts.gov/opinions/pub/files/201710397.pdf


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Tenth Circuit: Anderson Living Trust v. WPX Energy Production

Denial of class certification does not merge into a stipulated settlement for the purposes of appellate jurisdiction over a challenge to the denial of class certification as an element of the final judgement.

https://www.ca10.uscourts.gov/opinions/17/17-2029.pdf
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Ninth Circuit: Tin Cup LLC v. Corps of Engineers

Where a statutory directive occurs within an appropriations bill, the presumption is that it binds only for the period of the appropriation; this can be overcome by sufficient indications of futurity such as "hereafter."  Language in the imperative such as "will" and "shall" is insufficient.

Concur in J: In addition to the command in the imperative, the directive had a closing point, which meant that it wouldn't automatically sunset.





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Eighth Circuit: Deaton Oil Company, LLC v. United States

A claim that an agent did not pay taxes and make payments does not state a claim as a defense to nonpayment unless the nonperformance incapacitated the principal in that respect -- a high bar.

http://media.ca8.uscourts.gov/opndir/18/09/172326P.pdf
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Seventh Circuit: Kevin Czech v. Michael Melvin

Instructing the jury on Felony Murder theory of First Degree Murder arising from the use of the firearm, whether or not there was an independent felonious purpose to the use of the firearm, was an error of state law.  Precedent holds that this should be examined for harmless error, seemingly establishing a Due Process violation by implication, but one not clearly established for the purposes of Habeas petitions.  Here, though, the error of stare law was harmless, as the verdict would have been the same.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-21/C:17-1838:J:Griesbach:aut:T:fnOp:N:2222884:S:0

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Sixth Circuit: Ahmad Issa v. Margaret Bradshaw

When considering hearsay statements by a co-defendant that tend to implicate another defendant, the critical aspect that determines whether the truth of the matter asserted can be admitted despite the Confrontation Clause is not the indicia of reliability from some preconceived litmus such as the testimonial form of the statement, but rather the totality of the circumstances.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0212p-06.pdf
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Third Circuit: USA v. Keonna Thomas

Portions of plea hearing under seal in trial record are appropriately withheld given a sufficient showing of probable harm.  Although the First Amendment applies to records of plea proceedings, here the court provided sufficient specific reasoning under seal, considered alternatives, and labeled the sealed sections.  The common-law right of access is countered when it is the type of information that courts would normally protect, and there was sufficient risk of a clearly defined and serious injury.

http://www2.ca3.uscourts.gov/opinarch/172644p.pdf
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Third Circuit: Troy Reese v. Warden Philadelphia FDC

The Bail Reform Act system for contesting pretrial detention is the sole remedy for challenging federal pretrial detention; although Habeas theoretically runs, the prudential limits on the writ require the courts to deny any requests for relief not channeled through the Bail Reform Act processes.

http://www2.ca3.uscourts.gov/opinarch/181749p.pdf


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4th Circuit

New decisions haven't been appearing for several days on the 4th's site, and they appear to be replacing their web team.   Biglaw salmon-shirted minions, solos in Dinwiddie and other budding aristos are likely getting everything through PACER and the gossip down on Cary Street, but the People's Website will wait for the public feed to open up.  Unless, you know, we get bored or something. 

-CB
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    Other cases:

    (Serious brain-cloud setting in here -- punting the balance.)

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0210p-06.pdf

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0211p-06.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/161467P.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/16-56546.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/16-36072.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/14-56834.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/13-10637.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2691.Opinion.9-20-2018.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2256.Errata.9-20-2018.1.pdf


    -CB

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    Sixth Circuit: United States v. Erik McCoy

    The facts that the deft was regularly selling drugs, and that he was apprehended in possession of a large amount of drugs while at work provided sufficient explanation in the warrant's affidavit for a search of the apartment that he shared with another employee to be permissible under the good faith exception.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0209p-06.pdf

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    Third Circuit: In Re Hertz Global Holdings Inc.

    Executive resignations, poor results, cavalier tone, and insider trading during the turmoil raise an inference of scienter, but not a strong one, and therefore do not state a claim.

    http://www2.ca3.uscourts.gov/opinarch/172200p.pdf
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    Third Circuit: Carol Walker v. Brian Coffey

    Production of work emails by a public university in response to a facially infirm subpoena did not violate a clearly established constitutional right, as there was no legitimate expectation of privacy in emails which an employer could freely disclose.  Dismissal without prejudice to allow a refiling for statutory claims.

    http://www2.ca3.uscourts.gov/opinarch/172172p.pdf
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    Second Circuit: United States v. Lobo

    Witness assertion, when credited, suffices to establish that drugs made it to US markets.

    Aggravating role sentence increase upheld.

    "http://www.ca2.uscourts.gov/decisions/isysquery/1aad3dd4-e94a-4e4b-a3b1-6cd4b00c0df9/1/doc/17-2894_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1aad3dd4-e94a-4e4b-a3b1-6cd4b00c0df9/1/hilite/
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    First Circuit: US v. Vallellanes-Rosa

    As the court was not compelled to vary downward for the federal carjacking count, the sentence was substantively reasonable; as the relevant factors were mentioned during the sentencing, the sentence was procedurally reasonable.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1541P-01A.pdf
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    Other precedential cases from today

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0208p-06.pdf

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-19/C:17-1080:J:Sykes:aut:T:fnOp:N:2220907:S:0

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/14-71768.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/12-55911.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/16-73801.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201713611.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1101.Opinion.9-19-2018.pdf

    -CB
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    Sixth Circuit: Jesse Busk v. Integrity Staffing Solutions

    Door to door utility canvassers are subject to the travelling salesman exception to the statute, since although the utility has the final power to ratify the sale or not , gaining the consent of the customer is the work of the salesman.

    Although the portal-to-portal act puts some security screening time outside the Labor act's compensation mechanism, state law might cover the claim, since state law does not mimic the exception, and work need not involve exertion.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0207p-06.pdf
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    Second Circuit: Kevin Flood, et al. v. Just Energy Marketing Group, et al.

    To qualify for the Travelling Salesman exception to the Act, the  work of the employee must be closing sales.   The fact that the company could ultimately decline to ratify the deal and proceed with the transaction is irrelevant to this consideration, as the salesman's task is to get the customer's consent to the transaction.

    Court did not err or abuse discretion in refusing offensive collateral estoppel against the insurer for litigating the opposite view in another form, as the two contract interpretations are not precisely identical, and not all claims have yet been litigated to their conclusion. 

    http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/3/doc/17-546_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/3/hilite/                                                                                  
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    Second Circuit: Munoz-Gonzalez, et al. v. D.L.C. Limousine Serv.

    From the plain meaning of the statute, black cars are taxis.

     http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/2/doc/17-2438_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/2/hilite/
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    Second Circuit: Hartford Roman Catholic Diocesan Corp. v. Interstate Fire & Cas. Co.

    The term "occurrence" in the policy generally signifies an unexpected event; under state law, except for some strict liability events, the test is actual subjective expectation, not that which a reasonable person would expect.

    The challenging of claims by the insurer did not violate state trade practice laws. 

    http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/1/doc/16-2999_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/1/hilite/


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    Others

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0205p-06.pdf

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0206p-06.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/17-30061.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/16-50439.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/16-17347.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/15-15791.pdf

    https://www.ca10.uscourts.gov/opinions/17/17-3119.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201710189.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201710189.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201712091.pdf

    https://www.cadc.uscourts.gov/internet/opinions.nsf/8AE80A6C0FBDFB7B8525830C004D863A/$file/16-1159-1751123.pdf
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    Fifth Circuit: George Alvarez v. City of Brownsville

    Insufficient connection between municipality's policies and the withholding of the evidence in this case; placing sole discretion in a single officer does not amount to deliberate indifference, and the officer's conduct was no worse than negligent.

    Deft did not have a constitutional right to pre-plea-deal disclosure of exculpatory evidence in the possession of the government.  

    Concurrence: Federal District Court had obligation to allow challenges to potentially doctored pieces of evidence.

    Concurrence: Brady is a trial right, waiveable at plea stage.

    Dissent: Constitutional right.


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    Third Circuit: K. D. v. Downingtown Area School District

    Student's free and appropriate public education was sufficient, since the student made reasonable progress, and there is no requirement that educational goals for disabled students ensure that they advance normally with their age cohort.

    http://www2.ca3.uscourts.gov/opinarch/173065p.pdf
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    Second Circuit: United States of America v. St. Juste (Paul)

    Since the videotape of crime leaves no doubt as to what occurred, error for sentencing court to have held that the deft restrained the victims during the commission  of the crime.

    http://www.ca2.uscourts.gov/decisions/isysquery/ebd08708-88fc-4318-b2eb-94e7493863f0/2/doc/17-2702_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ebd08708-88fc-4318-b2eb-94e7493863f0/2/hilite/
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    Second Circuit: United States v. Washington

    Consent to polygraph testing as a condition of supervised release is onerous and not invariably part of similar sentences; the addition of the requirement in the written sentence after omitting it in the spoken sentence was therefore an impermissible modification. 

    http://www.ca2.uscourts.gov/decisions/isysquery/ebd08708-88fc-4318-b2eb-94e7493863f0/1/doc/17-2841_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ebd08708-88fc-4318-b2eb-94e7493863f0/1/hilite/
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    First Circuit: US v. Pineda Mateo

    In conspiracy prosecutions, the government cannot compel the testimony of a co-conspirator spouse.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1857P-01A.pdf
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    First Circuit: US v. Garcia-Ortiz (Corr.)

    On page 17, line 4, the word "concurrent" is replaced with "consecutive." 

     http://media.ca1.uscourts.gov/pdf.opinions/16-1405E-01A.pdf
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    Federal Circuit: Dupont v. Synvina

    A party asserting right of statutory appeal from the patent board doesn't have to establish specific threat of infringement litigation; rather, for standing, a party must establish a controversy of sufficient immediacy and reality.  A competitor's concrete plans for present and future activity that presents a risk of infringement suffice to establish standing.

    Given range disclosed in prior art, presumption of obviousness insufficiently rebutted.

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1977.Opinion.9-17-2018.pdf






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    Tenth Circuit: Smith v. Aldridge

    State habeas determination that a judge's statement claiming that the jury was zealously watched was more credible than five juror affidavits asserting the jurors slept during the trial was not an unreasonable determination of the facts.

    https://www.ca10.uscourts.gov/opinions/17/17-6149.pdf
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    Ninth Circuit: Nunies v. HIE Holdings

    Under the discrimination statute, the minor nature of an actual or perceived injury is an affirmative defense, and the burden to establish this subjective belief or actual condition is on the employer.

    Plaintiff employee's claim that work was impossible with the injury sufficed to establish that a major life activity was impossible with the injury.

    State statute's assertion that it is the sole remedy does not foreclose a claim under federal law.

     http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/17/16-16494.pdf


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    Casey Taylor v. Burlington North R.R.

    Certified question & bench memo.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/17/16-35205.pdf




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    Seventh Circuit: Patrick Hrobowski v. USA

    As petitioner was sentenced according to four predicate offenses, two of which were facially infirm, a subsequent change in the law enabling a challenge to the other two predicates that was ultimately successful as to one of them does not allow a late challenge to the two infirm predicates.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-17/C:16-3549:J:Kanne:aut:T:fnOp:N:2219599:S:0
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    Seventh Circuit: Raul Perez-Gonzalez v. Jacqueline Lashbrook

    State habeas determination that petitioner's plea deal did not implicitly waive the state's power to seek contempt sanctions for noncompliance was not an unreasonable determination of the facts or application of facts to law.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-17/C:18-1480:J:Brennan:aut:T:fnOp:N:2219305:S:0
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    Sixth Circuit: United States v. Joshua Pyles

    As the arrest warrant for the owner of the car would have justified the stop if there had been a reasonable probability that she was in the car, police officer's initial statement that one passenger's gender was not clear suffices; later testimony that the officer believed all the passengers to be men is not sufficient contradiction to discount the narrative.

    Sentencing court's taciturnity as to mental health factors did not rise to the level of procedural error.

    Upward variance for criminal history was not an abuse of discretion.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0204p-06.pdf
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    Sixth Circuit: United States v. Tyrone Christian

    En banc order.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0203p-06.pdf
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    Fifth Circuit: Angela Roberson-King v. State of LA Workforce Cmsn

    State law claim must be brought under the law granting the specific cause of action, as opposed to the more procedurally lenient general tort recovery statute.

    Discrimination claim under the federal statute does not present an issue for trial when the candidate who actually got the promotion and the plaintiff are equally qualified; the business judgment of the employer is a sufficiently non-pretextual race-neutral justification.

    http://www.ca5.uscourts.gov/opinions/pub/17/17-30899-CV0.pdf
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    First Circuit: US v. Russell

    Where a juror omits information on a written questionnaire, and that information presents a valid basis for challenge for cause, waiver is not presumed when counsel do not question the unfinished written reply at voir dire; the juror misconduct is structural error when it results in the vote of a single potentially biased juror.

    Juror's lack of disclosure of de minimis contact with witness whose credibility was not at issue was sufficiently investigated by a single consultation with witness; the juror did not have to be recalled.

    Drug quantities appropriately established by amounts of fertilizer purchases.

    Potential juror's dozing off was sufficient neutral reason to avoid Batson challenge.

    Preemptively testifying to prior convictions on direct waives appeal against admission of the convictions.

    Potentially improper statements in prosecution's closing were isolated and minor comments in a much larger web of evidence.

    http://media.ca1.uscourts.gov/pdf.opinions/16-2386P-01A.pdf


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    First Circuit: US v. Garcia-Ortiz

    As there is no realistically probable scenario in which Hobbs Act robbery could be accomplished without the use or threatened use of force, the offense is a valid predicate.

    Harmless error on not revisiting sentence after revision to guidelines during pendency of appeal; original sentencing court understood its discretion to have terms run concurrently or in sequence.

    http://media.ca1.uscourts.gov/pdf.opinions/16-1405P-01A.pdf
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    The rest of the story

    Today's other precedential opinions.  (NB 3rd's website a bit flaky today on the chromebook)

    http://www.ca5.uscourts.gov/opinions/pub/17/17-40796-CV0.pdf

    http://www.ca5.uscourts.gov/opinions/pub/16/16-60515-CV0.pdf

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:18-1060:J:Manion:aut:T:fnOp:N:2218850:S:0

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3216:J:Manion:aut:T:fnOp:N:2218849:S:0

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Hamilton:aut:T:fnOp:N:2218677:S:0

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Easterbrook:dis:T:fnOp:N:2218677:S:0

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-1631:J:Rovner:aut:T:fnOp:N:2218685:S:0

    http://media.ca8.uscourts.gov/opndir/18/09/171135P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/171677P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172231P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172232P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172399P.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/15-71666.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-15303.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35742.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35753.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-50413.pdf

    -CB
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    Fifth Circuit: USA v. Christopher Vialva

    A broad-based challenge to the integrity of the proceedings due to the incapacity of the judge is properly construed as a successive habeas filing rather than a motion to revisit the verdict, as the challenge doesn't arise from a cognizable procedural flaw in the earlier state trial, direct appeal or collateral proceedings.  Where the impacts of the alleged incapacity have already been litigated, permission to file for te writ is appropriately denied.


    http://www.ca5.uscourts.gov/opinions/pub/18/18-70008-CV0.pdf



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    Second Circuit: Cappetta v. Comm’r of Soc. Sec. Admin.

    Deference to agency determination that reporting work activity is material; although the consideration is not dispositive of a benefits fraud claim, it does speak to some elements of the determination.

    Agency retained the power to reverse the ALJ's finding.

    Although the law only penalizes omissions, agency could charge benefits recipient with non-reporting on a monthly basis, since the statute also bars withholding required disclosures.

    etc, etc...

    http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/doc/16-3540_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/hilite/


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    Second Circuit: United States v. Spoor

    The obscene nature of a film is objectively determined by the film's content; the intention of the creator is considered only as an element of the analysis.

    No constructive amendment in shifting dates in facts alleged.

    Past bad acts appropriately admitted, as the court was careful to remove the more inflammatory bits.

    Within-guidelines 360 month sentence substantively reasonable.

    http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/doc/16-2972_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/hilite/
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    Second Circuit: In re: DeRogatis

    Administrator's denial of full survivorship benefits was congruent with plan and statute, but the misstatements by plan employees, when speaking on behalf of the administrator, are subject to a fiduciary duty to the recipients, and the finder of fact may determine that an equitable remedy is in order.

    http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/doc/16-977_16-3549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/hilite/


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    First Circuit: US v. Brake

    Although the two sentencing bumps both arise from the possession of the stolen weapon during the crime, one refers to the theft of the weapon, and one refers to the probable use of the weapon.  Absent legislative guidance against double-counting, both may be applied.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1978P-01A.pdf
    .
    ~ ,

    First Circuit: Bonilla-Ramirez v. MVM, Inc.

    In establishing similarly-situated comparators for a disparate treatment claim based in misbehavior, the misbehavior of the comparators must be proved.

    Retribution claim must be proven beyond proximity in time.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1512P-01A.pdf
    .
    ~ ,

    First Circuit: Nat'l Fed'n of the Blind v. Container Store, Inc.

    Blind in-store customers cannot be charged with actual or constructive notice of arbitration provision in retail loyalty club agreement shown on computer display at time of enrollment; the agreement, as it happens, was also illusory, as the store retained untramelled powers to modify the agreement.

    http://media.ca1.uscourts.gov/pdf.opinions/16-2112P-01A.pdf
    .
    ~ ,

    First Circuit: US v. Cruz-Rivera

    Statute is a valid predicate crime of violence under use of force clause -- by analogy, since, although it can be accomplished by simple intimidation, bank robbery can also be accomplished by intimidation, and bank robbery is a valid predicate.

    As-applied and facial challenge to commerce clause of statute (ACCA?) rejected, as as-applied was conceded in stipulation, and facial because of the theory of the challenge - the crime, not the gun, needs to track to interstate commerce.

    Sufficient evidence.

    No need for the gov't to produce the weapon at trial.

    http://media.ca1.uscourts.gov/pdf.opinions/16-1321P-01A.pdf
    .
    ~ ,

    Seventh Circuit: Electric Power Supply Associat v. Anthony Star

    State nuclear power subsidy mechanism that requires emitting producers to purchase credits from nuclear producers at a price set by the market with a safety valve provision directly tied to the federal utility power auction mechanism is not preempted by the federal stature setting up the auction, since the state scheme doesn't price participants and non-participants in the federal auctions differently, and states have a right to regulate the utilities within their borders.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:17-2433:J:Easterbrook:aut:T:fnOp:N:2218059:S:0
    .
    ~ ,

    Seventh Circuit: International Assoc. of Machin v. Ray Allen

    Given controlling precedent of summary affirmation in an earlier case by the U.S. Supreme Court, state law requiring employers to process labor union dues check-off cancellation requests within 30 days is preempted as regulation of private conduct within the scope of labor-management relations and the Taft-Hartley Act.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:17-1178:J:Manion:dis:T:fnOp:N:2217949:S:0
    .
    ~ ,

    Seventh Circuit: Illinois Liberty PAC v. Lisa Madigan

    State campaign finance law that seems facially underinclusive given stated aims is nonetheless lawful, given presumption of statute's legitimacy.  Court did not abuse its discretion in holding that legislative caucuses were the functional equivalents of political parties for purposes of the law.

     http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:16-3585:J:Sykes:aut:T:fnOp:N:2217703:S:0
    .
    ~

    Fifth Circuit: Chris Gilkers v. Darrel Vannoy, Warden

    When, in the pendency of  collateral post-conviction challenges, a state habeas that was subsequently challenged in federal habeas is re-reviewed by the state sua sponte, an attempt to resuscitate the federal habeas claim by a 60(d) motion is properly construed as a second-or-sucessive habeas petition, and is subject to those statutory limits. 

    http://www.ca5.uscourts.gov/opinions/pub/16/16-30279-CV0.pdf
    .
    ~ ,

    Fifth Circuit: Constance Westfall v. Jose Luna, et al

    Aggressive nature of the knock-and-talk encounter can taint the subsequent consent to search.  When the person who gave consent to the search indicates that she doesn't want the police officers to go into a certain area, consent for that part of the search is withdrawn.  In these circumstances, the qualified immunity of the police officer presents an issue for trial.

    .
    ~ ,

    List of today's opinions what we haven't got to yet



    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:16-3585:J:Sykes:aut:T:fnOp:N:2217703:S:0

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/17-30011.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/16-35738.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/16-17130.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/15-56990.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/10-50219.pdf

     https://www.ca10.uscourts.gov/opinions/17/17-7033.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201711941.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201712562.pdf

    http://www.cafc.uscourts.gov/sites/default/files/Palantir_17-1465.Opinion.9-13-18.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2012.Opinion.9-13-2018.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2256.Opinion.9-13-2018.pdf

    -CB

    .

    Third Circuit: In re. Energy Future Holdings

    Bankruptcy court's order was an interlocutory one, as the court retained jurisdiction over the order and the case itself -- no clear error in court's decision that it had clearly erred earlier and the court's granting of a motion to amend filed under the inherent authority of the court.

    Dissent: Nullifying an order without a clear error of fact or law undercuts commercial reliance.

    http://www2.ca3.uscourts.gov/opinarch/181109p.pdf


    .
    ~ ,

    Second Circuit: Khalid v. Sessions

    Despite the fact that petitioner was not living with a parent at the time due to a brief juvenile pretrial detention, the petitioner was still in the physical custody of the parent.  When examining a contested term within an area generally governed by state law, federal courts should look to state law indicia for the meaning of the term.

    http://www.ca2.uscourts.gov/decisions/isysquery/1b02a388-b3d2-411b-83ac-285cdabaaea6/1/doc/16-3480_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1b02a388-b3d2-411b-83ac-285cdabaaea6/1/hilite/
    .

    First Circuit: Plixer International, Inc. v. Scrutinizer GMBH

    Although a website's availability, in itself, does not constitute the purposeful availment of the resources of a jurisdiction, a steady and predictable flow of commerce to the jurisdiction can constitute sufficient purposeful availment to justify a reasonable assertion of jurisdiction.

    http://media.ca1.uscourts.gov/pdf.opinions/18-1195P-01A.pdf
    .
    ~

    Eleventh Circuit: Bob Glasscox v. Argo, City Of, etc.

    Denial of qualified immunity for trigger-happy tasing of diabetic driver.  Driver's attempt to remove one of the taser wires might have been resistance (pun?)  but as the subsequent (fourth) tasing was underway already, it wasn't excused.

    http://media.ca11.uscourts.gov/opinions/pub/files/201616804.pdf
    .
    ~ ,

    Ninth Circuit Bohmker v. State of Oregon

    As state law banning motorized mining in certain areas has a clear purpose, is closely tailored, does not choose land use, and is not integrated within land use scheme, it is not field (pun?)  or conflict preempted by federal mining and and use law.

    Dissent: It restricts use of land.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/16-35262.pdf

    .
    ~

    Ninth Circuit: EEOC v. BNSF

    Amended opinion.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/16-35457.pdf
    .

    Ninth Circuit: USA v. Blackstone

    Second or successive habeas challenging residual clause conviction under mandatory sentencing guidelines is untimely, as the right has not yet been made retroactive.

    .
    ~ ,

    Ninth Circuit: DNC v. Reagan

    Voter filing assistance statute minimally burdens 1st & 14th Amendments; plaintiff did not demonstrate burden o discrete subgroups; no showing of prior fraud was needed, as the state might be preserving trust in the process; holding that disproportionate impact was de minimis was not clear error; legislature acted without intent to discriminate.

    Discarding out-of-precinct ballots similarly upheld.

    Dissent: Disparate impact, history of discrimaination, Section 2 of VRA problematic, etc.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/18-15845.pdf




    .
    ~

    Eighth Circuit: United States v. Calvin Bernhardt

    Sufficient evidence where counterfeit bills were in a stack separate from the other currency and showed varying levels of verisimilitude.

    Indictment counts not multiplicitous, as one refers to spoiliation.

    Attempt to persuade co-conspirator to remain silent, where accompanied by consciousness of wrongdoing, is culapable, as it falls outside of Fifth Amendment and privilege protections.

    A substantial step towards illicit travel must implicate travelling -- not the underlying criminal plan.

    http://media.ca8.uscourts.gov/opndir/18/09/171325P.pdf
    .
    ~ ,

    Eighth Circuit: Muhammad Abdurrahman v. Mark Dayton

    Capable of repetition yet evading review exception to mootness is an equitable consideration; as the faithless elector could have filed suit during the vote-casting process, the exception is not available to him now.

    http://media.ca8.uscourts.gov/opndir/18/09/164551P.pdf
    .
    ~

    Seventh Circuit: Brian Reynolds v. Henderson & Lyman

    Existence of a duty of care, although dispositive, is a question of law that, in the federal forum, is decided by the judge.  As the division of responsibilities for finding facts and law at the trial stage is a procedural one, the procedures of the federal forum control.

    Under state law, attorneys for LLC owed no third-party duty of care to LLC owner and manager.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-12/C:17-1999:J:Wood:aut:T:fnOp:N:2217358:S:0


    .
    ~ , ,

    Fifth Circuit: Lizzy Plug, et al v. SXSW Holdings, Incorporated

    Although festival organizers had effective control of the street, the permit required that it be operated according to the usual traffic control plan; organizers did not therefore have a duty of care that might have prompted them to change that.

    Similarly, negligence per se, implied warranty, and public nuisance don't state a claim.

    Murderous driver not sufficiently foreseeable; the test is forseeability from recent events, not actual knowledge of threat.

    http://www.ca5.uscourts.gov/opinions/pub/17/17-50674-CV0.pdf
    .
    ~

    Fourth Circuit: Sierra Club v. VEPCO

    While a power plant can be liable under the Act for discharging pollutants into navigable waters via hydrologically connected groundwater, the pollution in this instance was from the landfill and settling pools connected with the site, which were not a "point source" covered by the Act.

    Parallel provisions in state permit should be construed reasonably and in a manner congruent with the federal regulations.

    http://www.ca4.uscourts.gov/opinions/171895.P.pdf
    .
    ~

    Fourth Circuit: Rosy de Reyes v. Waples Mobile Home Park

    Landlord's requirement that all adults establish legal residency, prompting a disparate impact on one ethnic group, states a claim under a theory of disparate impact.  At summary judgment stage, that impact is then balanced against justifications for the policy.

    http://www.ca4.uscourts.gov/opinions/171723.P.pdf
    .
    ~

    Third Circuit: Michael Rinaldi v. USA

    For purposes of the review of exhaustion of remedies, prison administrative remedies are considered unavailable where administrators dissuade the inmate using serious threats of retaliation and bodily harm.

    To establish unavailaibility, the inmate must show that the remedy was objectively out of reach to the average inmate and that he or she was actually deterred from using it.

    Where a prison modifies procedure and the highest authority formally denies on the merits, the administrative remedy has been exhausted.

    Housing and cellmate assignments are left to the discretionary judgment of the administrators, which bars a tort claim against the government under the FTCA exception to sovereign immunity.

    http://www2.ca3.uscourts.gov/opinarch/161080p.pdf
    .
    ~ , ,

    Third Circuit: Emil Jutrowski v. Township of Riverdale

    Although a plaintiff in a S1983 suit needs to be able to identify the law enforcement officer who injured him in order to present an issue for trial, an allegation of after-the-fact conspiracy supported by omissions or inconsistencies in contemporaneous records can present an issue for trial on the same facts.

    http://www2.ca3.uscourts.gov/opinarch/172594p.pdf


    .
    ~ ,

    Third Circuit: Bernie Clemens v. New York Central Mutual Fire

    Not an abuse of discretion for court to dismiss petition under fee-shifting statute in its entirety where counsel's performance was sub-par, timekeeping records were vague, there was insufficient proof of local prevailing rates, and plaintiff asks for 900k in fees on a 100k award after a four day trial.

    http://www2.ca3.uscourts.gov/opinarch/173150p.pdf
    .
    ~

    Second Circuit: United States v. Kirsch

    The organized labor exception to the state extortion statute encompasses only direct demands for assets in the form of traditional labor actions such as strikes and boycotts.  Ejustem. 

    State crimes of extortion that are RICO predicates must involve transferable assets. (Not incorporeal.)

    Wages and benefits sought for union members through extortion were transferable assets.

    Given statute requiring actual participation or authorization on the part of union members in labor violence for culpability, insufficient evidence here.

    Jury instruction focusing on victim's state of mind was appropriate, as the crime is instilling fear.

    Sentence adjusted on remand for insufficient evidence.

    http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/doc/16-3329_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/hilite/


    .
    ~ , ,

    Sixth Circuit: Kashiya Nwanguma v. Donald Trump

    Political candidate's spoken summary ejection of protesters was not an incitement to riot.

    The test for whether a political speech is protected against a charge of incitement considers the content, form, and context of the actual words.  A single listener's subjective response is not dispositive; the court must consider the actual words used.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0202p-06.pdf
    .
    ~ ,

    Fifth Circuit: McGill Parfait v. DOWCP, et al


    Lack of notification of award from third party was a jurisdictional bar to any award of funds, given the statute; the purpose of the award is to prevent double recoveries.
    .

    Fifth Circuit: USA v. Jesus Islas-Saucedo

    State burglary statute, given recent precedent holding it not to be a valid ACCA predicate, is similarly not a sentencing guidelines predicate.

    http://www.ca5.uscourts.gov/opinions/pub/16/16-40672-CR0.pdf

    .
    ~

    Third Circuit: USA v. Zenaido Renteria, Jr.

    As venue is  jurisdictional element that does not take the state of mind of the deft into account, venue in a certain district need not be foreseeable by the deft.

    Sentence drug calculations upheld.

    http://www2.ca3.uscourts.gov/opinarch/172079p.pdf


    .
    ~ ,

    Third Circuit: Trinity Industries Inc v. Greenlease Holding Co

    Risk did not pass back to indemnified party at the end of the period of indemnification, but should be allocated according to law and the other provisions of the agreement.

    Cleanup costs, although more expensive due to being prompted by consent order, had sufficient nexus to the environmental response and were therefore reasonable.

    Cost allocation methodology was improper, as it did not consider costs of individual remediations.

    Court did not abuse discretion in attributing lead contamination to historic factors.

    Arbitrary award  percentages used in balancing of equities were not supported by specifics in the record.

    Corporate entities distinct.  Public policy requires presumption for the corporate form.

    http://www2.ca3.uscourts.gov/opinarch/161994p.pdf
    .
    ~ , ,

    More elsewhere

    Videlicet:










    -CB
    .

    Third Circuit: Jeffrey Workman v. Superintendent Albion SCI

    Where deft's trial counsel was preoccupied with vindication of a manifestly weak legal theory and the issue is not raised in state habeas -- the latter is ineffective assistance by its terms, and the former is a sufficient showing -- cause for waiver in subsequent federal collateral challenge is excused.

     http://www2.ca3.uscourts.gov/opinarch/161969p.pdf
    .
    ~ ,

    Second Circuit: Spinelli v. National Football League

    As implied license is an affirmative defense, all elements must be plain in order to dismiss an infringement claim at the pleadings stage.

    Error to dismiss for not stating a claim where there is evidence that the grant of license by the creator did not contemplate the sublicence; this sounds in copyright infringement, not in contract.

    Secondary infringement allegation states a claim against third party organization given showing of close connection between the two organizations.

    Good faith/fair dealing states claim -- strong-arm negotiation unconscionability doesn't.

    (Miscellany)

    Antitrust argument would sound more clearly if photographers challenged their market -- trademark licensing, etc.  Rather than simply alleging the existence of a behemoth.

    http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/doc/17-673_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/hilite/
    .
    ~ , , , ,

    First Circuit: US v. Ocean

    Sufficient evidence for conspiracy despite conflict with others and dual role as consumer and salesman for the drug operation -- the common purpose was the increased sale of narcotics.

    Absent evidence that the government was attempting to elicit statements from the deft, contents of phone call during pretrial detention to friend who might have been cooperating with the investigation admissible.

    Explicit waiver of drug quantity calculation in sentencing memo forecloses challenge on appeal.

    District court was within discretion to accept deft's possibly exaggerated calculation of drug quantity.

    Reference on cross to lab reports did not inappropriately bronze lay testimony as to drug identification or present confrontation clause argument as to the content of the reports.

    http://media.ca1.uscourts.gov/pdf.opinions/16-2468P-01A.pdf


    .
    ~ , ,

    More elsewhere, of course

    To wit:

    http://www2.ca3.uscourts.gov/opinarch/171944p.pdf

    http://www.ca5.uscourts.gov/opinions/pub/17/17-40148-CV0.pdf

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=today&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes

    http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl

    https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

    https://www.ca10.uscourts.gov/clerk/opinions/daily

    http://www.ca11.uscourts.gov/todays-published-opinions

    http://www.cafc.uscourts.gov/opinions-orders

    Sub-optimal breadth and depth today.  Not good. 

    Tomorrow is, inter alia, another day.

    -CB
    .

    Third Circuit: Frank Long v. SEPTA

    Although Congress cannot designate an injury as specific and harmful enough for standing, the cause of action and damages for not providing a credit report established that Congress saw the harm as serious, and it was similar to rights recognized in the common law.  The requirement of FCRA notification, though, is a bare procedural violation with no actual harm, insufficient to establish injury in fact under Article III.

    http://www2.ca3.uscourts.gov/opinarch/171889p.pdf
    .
    ~

    Second Circuit: USA v. Barrett

    Since Hobbs Act robbery is rarely used in cases of merely threatened harm, convictions under the act are categorically convictions for a crime of violence.

    Hobbs Act robbery conspiracy is a crime of violence, as it necessarily creates a substantial risk of violence.

    As statute requires that the number of predicate convictions be determined by the finder of fact in the present trial and conduct-specific aspects of the prior convictions are balanced in this determination, many of the constitutional difficulties with prior convictions under a residual clause can be avoided.  The fact that the predicate convictions weren't determined by the finder of fact in this case was harmless error.


    http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/doc/14-2641_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/hilite/


    .
    ~ , ,

    First Circuit: Aguilar de Guillen v. Sessions

    Corrigendum, viz:

    http://media.ca1.uscourts.gov/pdf.opinions/17-2095E-01A.pdf
    .

    First Circuit: US v. Irizarry-Rosario

    References in closing to potentially aggravating factors do not breach  the plea deal, so long  as the tactic is not an end run around the plea agreement, and the government doesn't express regret or a desire to be free of the terms of the deal.

    .
    ~ , ,

    End of day

    Still hoping to move to full coverage, while balancing dissertation & slings/arrows/what have you.

    More from today:

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/16-55090.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/15-50366.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/15-35834.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1845.Opinion.9-7-2018.pdf

    -CB
    .

    Ninth Circuit: Rynearson v. Fergusun

    (Rakoff (SDNY) on panel.)

    When a person subject to a protective judicial order seeks to challenge the constitutionality of one of the statutes implicated by the order, federal courts are not required to abstain from the question, as the interference with the state criminal proceeding would be indirect and not dispositive.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/17-35853.pdf


    .
    ~

    Eighth Circuit: William Hatcher v. MDOW Insurance Company

    Insurance policy renewed at discretion of policyholder and insurer can be modified during the course of the policy with sufficient notice; continued premiums serve as considerations for any changes.  Boilerplate letters instructing policyholder to review the terms of the policy prior to renewal constitute sufficient notice.

    No prejudice from improperly sustained objection to testimony, as the objection was at sidebar, the jury was not informed, and there was no proffer as to what might have been revealed in that line of testimony.

    http://media.ca8.uscourts.gov/opndir/18/09/172410P.pdf
    .
    ~

    Eighth Circuit: Charter Advanced Services v. Nancy Lange

    Voice-IP system is properly considered an information service, as the data is transformed to the traditional telephony format before entering the network.  State regulation therefore preempted by the field of federal law.

    Dissent: There is no noticeable transformation between end users, some networks use voice-IP internally, transforming to traditional format before routing to user.

    http://media.ca8.uscourts.gov/opndir/18/09/172290P.pdf
    .
    ~ ,

    Sixth Circuit: United States v. Desmond Cam

    For the purposes of the advisory sentencing guidelines, Hobbs Act robbery is not a predicate crime of violence, either as robbery or through its use of force, since it encompasses conduct limited to the threatened harm to property.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0201p-06.pdf


    .
    ~

    Sixth Circuit: John Doe v. David Baum

    Where the facts are in dispute and there are competing narratives of events, due process requires that public universities allow either the accused student of his or her representative directly to question the accuser.

    A judicial proceeding in which everyone of one gender is believed and all those of the other gender are disbelieved states a claim under Title IX.

    Concurrence -- Title IX violation states a claim; some grounds for the claim improperly excluded by this holding, as they're more appropriate to the summary judgment standard.

    Dissent -- Due Process right to confront the witness can be vindicated by written questions.  Insufficient particularized causal connection for Title IX claims.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0200p-06.pdf
    .
    ~ , ,

    Fifth Circuit: Michael Vaughn, ex rel., et al v. United Biologics

    A relator under the Act can seek voluntary dismissal with prejudice for purely private interests without binding the non-intervening government side, whose interests in the claim are dismissed without prejudice.

    Statute requiring written opinion and reason for decision presents two freestanding requirements which can be accomplished separately.

    Relators' having shared counsel with second relator in another forum who intends to pursue the action does not establish bad faith.

    http://www.ca5.uscourts.gov/opinions/pub/17/17-20389-CV0.pdf
    .
    ~ ,

    Third Circuit: USA v. Amy Gonzalez

    Sufficient evidence for conspiracy conviction where the deft claims a genuine belief in the inciting statements, but finder of fact holds them to be objectively false.

    Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime.  Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.

    For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.

    As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.

    A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.

    Possibly prejudicial prior family court records properly admitted with limiting instructions.

    Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.

    Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.

    ,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.

    Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect.  Vouching appropriately limited by instruction.

    Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.

    Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.

    Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.

    Injury to victim's children justified the increase of sentence for harming a vulnerable victim.

    Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.

     http://www2.ca3.uscourts.gov/opinarch/161540p.pdf






    .
    ~ , , , , , , ,

    Third Circuit: Joseph Brown v. Sage

    When determining whether a prisoner's petition to proceed as a poor person is barred under statute due to having already filed three complaints that did not state a valid claim, the procedural law of the present forum controls, not the law of the forum in which the previous claims were filed. 

    The number of previously filed complaints is determined by counting all claims resolved before the filing date of the present action.

    Concur/dissent - the discretionary power of dismissal in the PLSRA is a more efficient mechanism, and the analysis mandated here seems to foreclose that flexibility.

    http://www2.ca3.uscourts.gov/opinarch/171222p.pdf
    .
    ~

    Second Circuit: United States v. Pereira-Gomez

    State Robbery statute is a valid predicate crime of violence, as even the passive examples raised here implied the threatened use of force.  Where the underlying offense is a crime of violence, the attempt is also a crime of violence.

    http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/doc/17-952_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/hilite/
    .
    ~

    End of day

    The voices of the day murmur low and sink to rest.   Also decided today:

    http://media.ca8.uscourts.gov/opndir/18/09/164532P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172401P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172413P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172424P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172995P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/173202P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/186007P.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/18-55911.pdf

     http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/17-55165.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-71380.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-15338.pdf

     http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/15-15143.pdf

    https://www.ca10.uscourts.gov/opinions/17/17-3206.pdf

    In other matters, diss continues apace, slings and arrows survived.  Onward.

    -CB
    .

    Seventh Circuit: Supreme Auto Transport, LLC v. Arcelor Mittal USA, Inc.

    Antitrust suit against producer of raw metal cannot relate back its revised claim, making it untimely; the shift from industrial plaintiffs to the end users of the products gave the defendants insufficient notice to preserve documents and prepare for trial.

    State antitrust laws likely require closer proximancy than the end user of the products, as loss calculation becomes difficult.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-06/C:17-2910:J:Wood:aut:T:fnOp:N:2213421:S:0
    .
    ~

    Sixth Circuit: Neil Morgan v. Fairfield Cty., Ohio

    Denial of qualified immunity for municipality policy authorizing police officers to surround a house, standing 5-7 feet from it before knocking on door to discuss a possible violation of the law, as the systematic invasion of the curtilage wasn't considered.  Immunity upheld for individual officers upheld, given evolving caselaw.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0199p-06.pdf
    .
    ~ ,

    Fifth Circuit: Consumer Financial Protection v. Source for Public Data

    Agency administrative subpoena that does not identify the activity under investigation or the relevant provision of law does not allow for judicial review of the reasonableness of the request, making it statutorily infirm.

    http://www.ca5.uscourts.gov/opinions/pub/17/17-10732-CV0.pdf
    .
    ~

    Fifth Circuit: David Hager v. Todd G. Rowan

    Discharged employee retains ERISA standing to challenge COBRA notification.

    Since the employee was no longer eligible for the plan, medical costs otherwise covered by the plan are not an appropriate remedy; as the remedy must be in equity, the medical costs are similarly an inappropriate award; the proper remedy is a penalty based on the seriousness o the violation, and it is entirely possible that the amount of the penalty is equal to the medical costs incurred.

    .
    ~ , ,

    Third Circuit: Gordon Tima v. Attorney General United States

    Statute that allows discretionary waiver of certain bad acts that would otherwise result in deportation by its terms only refers to fraud affecting admissibility, so a conviction for making false statements during an investigation of the admissibility fraud is not subject to discretionary waiver.

    .
    ~ ,

    Third Circuit: Mona Estrada v. Johnson & Johnson

    A person who purchases a product later found to be unsafe but who suffers no harm from the use of the product and who did not forgo purchasing a cheaper version of the product does not suffer sufficient injury for Article III standing, as they have received the benefit of their bargain.

    Dissent: Safety of the product is an element of the bargain.

    http://www2.ca3.uscourts.gov/opinarch/172980p.pdf




    .
    ~

    First Circuit: Rivera v. Sessions

    Procedural error in immigration administrative appeal seeking discretionary relief cannot present a cognizable constitutional question for purposes of Article III review, as there is no cognizable, constitutionally guaranteed liberty interest.

    http://media.ca1.uscourts.gov/pdf.opinions/18-1243P-01A.pdf
    .
    ~ ,

    First Circuit: US v. Freitas

    No prejudice from admission of co-conspirator hearsay, given overwhelming evidence of guilt.

    Challenges to instructions either waived for insufficient development or contradicted by record.

    Challenge to sufficiency of the evidence waived,, as appeal did not state or argue the standard of review.

    No prejudice from plain error in prosecution's closing that went beyond the facts established at trial.

    .

    First Circuit: Doe v. Harvard Pilgrim Health Care

    The administrative record for the purpose of judicial review properly includes documentary evidence from the post-filing review process, where both parties consent to the addition of the record in the post-filing process.

    ERISA appeals at summary judgment are governed by clear error; remand to allow the court to interpret the documents.

    http://media.ca1.uscourts.gov/pdf.opinions/17-2078P-01A.pdf
    .
    ~ ,

    End of Day

    Should have been able to get through all of these.  Citius, altius, etc.  Brain-cloud, perhaps.

     http://media.ca8.uscourts.gov/opndir/18/09/173242P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/163891P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172012P.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/17-35355.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/16-35431.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/13-56061.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201714677.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201315258.pdf

    -CB



    .

    Seventh Circuit: USA v. Daniel Stewart

    No plain error in prolongation of traffic stop, given the minimal length of traffic stop.  Sufficient evidence for money laundering, given illicit source of funds.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-05/C:16-4105:J:Rovner:aut:T:fnOp:N:2212702:S:0
    .
    ~ ,

    Sixth Circuit: Brittany Harris v. Kimberly Klare

    Denial of qualified immunity as a matter of law for officer's search of minor during traffic stop, as there is a question of whether the officer knew that there were minimal grounds for suspicion and that a dog search had turned up nothing; denial of qualified immunity as a matter of law for consensual search, as minor plaintiff was hancuffed, surrounded by police, had been stopped for an hour, and the search was apparently a precondition to using the restroom.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0198p-06.pdf
    .
    ~ ,

    Third Circuit: Damien Preston v. Superintendent Graterford SCI

    Although counsel in the initial state collateral challenge was ineffective, excusing the waiver of the claim due to its omission, the underlying claim of ineffective assistance at trial due to the Confrontation Clause violation did not prejudice the petitioner, given the cumulative evidence of guilt.

    http://www2.ca3.uscourts.gov/opinarch/163095p.pdf

    .
    ~ ,

    Third Circuit: Township of Bordentown v. FERC

    Issuance of a permit conditioned on obtaining of second state permit did not offend the Act, as the conditional permit did not allow any discharges into the waters of the United States.

    As each project is viable without the other, agency was not arbitrary or capricious in considering them separately.

    Deference to agency determination that nonjurisdictional utility project was not sufficiently connected to jurisdictional projects to warrant formal review.

    Agency's determination of minimal impacts appropriately resolved claim of cumulative impacts.

    etc, etc. ...

    Original federal appellate jurisdiction for violations of the act does not displace state administrative remedies in the permitting process.

    http://www2.ca3.uscourts.gov/opinarch/171047p.pdf
    .
    ~ ,

    Third Circuit: Carol Vorchheimer v. Philadelphian Owners Association

    To state a claim for denial of necessary housing accommodation, plaintiff must establish the necessity of the accommodation beyond alternate solutions proposed by the landlord.  Joint agency statement indicating that the tenant has a right to their suggested modification has little power to persuade, as it does not explicitly purport to interpret the statute.

    http://www2.ca3.uscourts.gov/opinarch/171738p.pdf
    .
    ~ ,

    Third Circuit: In re: Tribune Media Company

    Bankruptcy Court had statutory jurisdiction to resolve discrimination claims against debtor as a matter of law, as plaintiff consented to jurisdiction, and the statutory carve-out that would usually move personal-injury tort claims to the District Court is not a jurisdictional provision.

    Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns.  Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.

    As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.

    Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.

    Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.

    Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.

     http://www2.ca3.uscourts.gov/opinarch/172449p.pdf



    .
    ~ , , , ,

    Third Circuit: William Lee v. Sixth Mt Zion Baptist Church

    Claims of minister whose contract with his church was terminated for cause due to lack of spiritual leadership do not present an issue for trial, as the question would impermissibly entangle the court in religious matters, and the church has a freestanding First Amendment right to select its ministers.

    http://www2.ca3.uscourts.gov/opinarch/173086p.pdf
    .
    ~ , ,

    End of Day

    Working much more slowly at these than before for some reason.  This should have been a 100% coverage day.  For the nonce, chalking it up to putting the task at the end of a long day.  Or perhaps the Trollope over dinner.  Reading rhythms.

    More:

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0196p-06.pdf

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0197p-06.pdf

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-04/C:17-2890:J:Sykes:aut:T:fnOp:N:2212102:S:0

    http://media.ca8.uscourts.gov/opndir/18/09/171374P.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/17-30084.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-50326.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-35684.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-15588.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/15-35845.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201512130.pdf

    https://www.cadc.uscourts.gov/internet/opinions.nsf/C5C55E88E352419C852582FE004E7052/$file/16-5298.pdf

    https://www.cadc.uscourts.gov/internet/opinions.nsf/C43C5F8C1F01517F852582FE004E4BCA/$file/17-1151.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2434.Opinion.9-4-2018.pdf

    -CB

    .

    Fifth Circuit: In Re: Alfred Bourgeois

    Second or successive habeas petitions from prisoners in federal custody must meet the same statutory thresholds as do those from state prisoners.

    http://www.ca5.uscourts.gov/opinions/pub/18/18-40270-CV0.pdf
    .
    ~ ,

    Fifth Circuit: Thomas Martone v. Walter Robb, III, et al

    Plaintiff need not sell stock to establish loss causation for standing -- purchase at inflated price and holding at reduced value suffices for particular injury.

    Where there was no alternative that would have avoided the fall in stock price, the allegedly harmful timing of the disclosure might have been a legitimate business decision.  ANy hedging strategy would, as a matter of law, have required disclosure.  Additionally, the board could no have been certain that the employee stock plan would be a net purchaser during the period under consideration.


    http://www.ca5.uscourts.gov/opinions/pub/17/17-50702-CV0.pdf







    .
    ~ ,

    Fifth Circuit: Norman Bloom v. Aftermath Pub Adjusters, Inc., et

    Absent state precedent to the contrary, in a federal forum, state procedural rules on tolling of claim are limited to the class of persons explicitly identified in the state precedent or statute.  Federal forum cannot equitably modify, as it is a question of law.

    http://www.ca5.uscourts.gov/opinions/pub/17/17-41087-CV0.pdf


    .
    ~

    Third Circuit: Delaware Riverkeeper Network v. Sec PA Dept Env Protection

    Given the strong presumption of administrative unreviewability until final administrative action, the statute's silence eon the question, combined with a jurisdictional grant over state actions create an inference of unreviwability until after final administrative decision.

    As the agency decision takes effect prior to administrative appeal and the administrative appeal happens within an entirely separate proceeding, the agency decision is sufficiently final for statutory exclusive jurisdiction.

    Rulemaking notice was sufficient; there is no requirement that notice requirements be set forth in a regulation; notice allowed interested parties to participate meaningfully in a process that was actually pending.

    Agency approval conditioned on subsequent permit grant was not intrinsically arbitrary and capricious.

    Whether or not a Takings Clause claim can arise under the statute, there is sufficient remedy in the existing appeals process.

    Statute and APA allow court to consider pendent claims arising from the state constitution.

    http://www2.ca3.uscourts.gov/opinarch/162211p.pdf
    .
    ~ , ,

    Third Circuit: Marc Silver v. Omnicare Inc

    Although the statute does not permit a relator to pursue a qui tam action where the fraud is public knowledge, where the relator uses privately available information to make sense of the public information and the public information, standing alone, would not reasonably or plausibly supported an inference of fraud under the heightened pleading requirements for the claim.

    http://www2.ca3.uscourts.gov/opinarch/164418p.pdf

    .
    ~

    Third Circuit: Alex Taksir v. Vanguard Group

    State action for breach of contract in reference to undisclosed transaction fees is not barred by the terms of the securities act, as the misrepresentation is not in connection to the sale of the security, and would not be material to the transaction.  As the misrepresentation is outside of the act's scope, a fraud claim is similarly not forbidden.

    .
    ~ ,

    First Circuit: Lemelson v. Bloomberg L.P.

    Typo.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1620E-01A.pdf
    .

    First Circuit: Scholz v. Goudreau

    Grammatical corrigenda. 

    http://media.ca1.uscourts.gov/pdf.opinions/17-1264E-01A.pdf
    .

    First Circuit: Boudreau v. Lussier

    Material corrigenda.

    http://media.ca1.uscourts.gov/pdf.opinions/16-1049E-01A.pdf
    .

    Federal Circuit: Grimsrud v. Department of Transportation

    Denial of en banc without comment.

     http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1737.Order.8-31-2018.1.pdf
    .

    Tenth Circuit: Grissom v. Carpenter

    Trial counsel's arguments in mitigation phase at capital trial largely covered the ground that a closer examination of petitioner's undiagnosed brain damage would have led to, so state habeas ruling that representation was not constitutionally ineffective was not an unreasonable one.

    Defense counsel's concession of the elements of the crime made instruction on lesser-included offenses redundant, and was apparently a legitimate strategic decision to focus the jury's attention on mitigation.  As defendants cannot withdraw a defense, apparently stipulating to the elements shouldn't waive the instruction.  Voluntary intoxication instruction was not prejudicial, given the high standard for relief under state law, and exists as a complete defense, not a mitigation.  State habeas denial was therefore not unreasonable.

    State habeas denial for cumulative error, presumably referencing ineffective assistance for the lack of lesser-included instruction and mitigation, was not unreasonable and contrary to law; de novo review of the total record in federal habeas can establish this.

    https://www.ca10.uscourts.gov/opinions/16/16-6271.pdf
    .
    ~ , , ,

    Ninth Circuit: Lucero v. Holland

    Apparently incriminating gang writings insufficiently testimonial to trigger Confrontation Clause protections when introduced against a nontestifying codefendant.

    Expert testimony that gang member was to have access to a weapon at all times and proximity to assault with a puncturing weapon insufficient to establish possession of a weapon.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/15-16111.pdf
    .
    ~ ,
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