Prior to claiming a statutory private easement in public land along a public right of way, claimants must avail themselves of any available special use permit offered by the land manager; denial of such an application makes the case ripe for judicial review.
http://media.ca11.uscourts.gov/opinions/pub/files/201616544.op2.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Eleventh Circuit: U.S. Commodity Futures Trading Commission v. Southern Trust Metals, Inc., et al.
Amended opinion following denial of rehearing.
http://media.ca11.uscourts.gov/opinions/pub/files/201616544.op2.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201616544.op2.pdf
Ninth Circuit: US v. Pepe
Post-conviction amendment of statute prohibiting certain conduct when travelling abroad to include conduct while residing abroad permits abrogation of circuit precedent that held the earlier form to include both travelling and residence. Lenity, Constitutional avoidance.
Dissent: It was a clarifying amendment in light of uniform judicial interpretation that both meanings were originally included.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/14-50095.pdf
Dissent: It was a clarifying amendment in light of uniform judicial interpretation that both meanings were originally included.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/14-50095.pdf
Ninth Circuit: White v. Ryan
State habeas denial was contrary to and an unreasonable application of the federal law governing ineffective assistance of counsel claims as to mitigation and aggravating factors, since it considered whether the specific court that had heard the case would have been prejudiced, rather than a neutral and objective court considered abstractly, and also did not weigh the cumulative effect of the mitigation that had been omitted.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-99011.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-99011.pdf
Ninth Circuit: US v. Joyce
Given the per se rule against horizontal price fixing, court did not abuse its discretion by barring evidence of minimal market effects.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/17-10269.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/17-10269.pdf
Eighth Circuit: United States v. Deuvontay Charles
Omission of the fact that the residence to be searched was only an occasional residence does not justify suppression of the evidence, as a neutral magistrate could have found probably cause to search an occasional residence. Requirement to register on a predatory offender registry is sufficient to trigger penalties for committing an offense while on an offender registry. Conciliation court document for county's suit against the mother of the victim is insufficient proof to establish within the court's discretion the restitution due the county.
http://media.ca8.uscourts.gov/opndir/18/07/172391P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172391P.pdf
Eighth Circuit: Carrie-Anne Smith v. Rockwood R-VI School District
Discrimination claims that in substance allege the denial of a free and appropriate public education trigger the exhaustion requirements of the Act; even if one party is thought not to have standing, the development of the administrative record will assist any subsequent judicial review.
http://media.ca8.uscourts.gov/opndir/18/07/172260P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172260P.pdf
Eighth Circuit: United States v. Tong Moua
As the trial court is best positioned to judge the facts, sufficient evidence for robbery conviction where a single witness who had earlier identified another person made an in-court identification, deft was seen in a vehicle that was later found near a robbery with incriminating writing-pad impressions, warrantless cell-phone location data placed the deft near the robberies, and items of clothing similar to those seen during the robbery were found at the apartment. Sentence substantively not unreasonable.
http://media.ca8.uscourts.gov/opndir/18/07/172046P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172046P.pdf
Seventh Circuit: Joshua Vasquez v. Kimberly Foxx
State's expansion of residence restrictions for registered offenders was not an ex post facto penalty, as the conduct regulated is post-enactment knowing residence. The law does not amount to a taking, since it is a regulation on the use of property, doesn't affect the market value of the property, and plaintiffs acquired the property after enactment. Procedural due process does not require individual hearings. The law has a rational basis.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1061:J:Sykes:aut:T:fnOp:N:2184695:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1061:J:Sykes:aut:T:fnOp:N:2184695:S:0
Seventh Circuit: Emma Cehovic-Dixneuf v. Lisa Wong
As the company retained administrative functions, the life insurance plan was within the statute, even though all premiums were paid by the employee; equitable reassignment of the beneficiary is therefore unavailable.
Where hearsay challenges are raised for the first time on a motion to reconsider summary judgment, the court may accept the challenged evidence as tending to point to some admissible method of proof, since the rules bar from the motion to reconsider any claims that might have been raised earlier on the merits.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1532:J:Hamilton:aut:T:fnOp:N:2184892:S:0
Where hearsay challenges are raised for the first time on a motion to reconsider summary judgment, the court may accept the challenged evidence as tending to point to some admissible method of proof, since the rules bar from the motion to reconsider any claims that might have been raised earlier on the merits.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1532:J:Hamilton:aut:T:fnOp:N:2184892:S:0
Seventh Circuit: Nicholas Knopick v. Jayco, Inc.
If courts do have a prudential power to discern real parties in interest, such a power would be inapposite here, as the plaintiff who used an LLC to purchase a vehicle, and the LLC assigned the right of action to the plaintiff after the commencement of suit.
Absent an equitable "lemon law" showing to the contrary, repairs on a vehicle owned by an LLC and therefore excluded from warrantied repairs did not effect an intentional relinquishment of a known right by the manufacturer that would allow a subsequent claim against the warranty by the LLC.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-2285:J:Hamilton:autcon:T:fnOp:N:2184815:S:0
Absent an equitable "lemon law" showing to the contrary, repairs on a vehicle owned by an LLC and therefore excluded from warrantied repairs did not effect an intentional relinquishment of a known right by the manufacturer that would allow a subsequent claim against the warranty by the LLC.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-2285:J:Hamilton:autcon:T:fnOp:N:2184815:S:0
Fifth Circuit: Raquel Hinojosa v. Petra Horn, et al
Since onetime-citizens who are abroad who have their passports revoked have a right under the statute to petition the Secretary of State for permission to present themselves at a port of entry, they do not have a right to challenge the revocation directly as an administrative action.
This petition process must be exhausted prior to seeking habeas relief; although it does not directly remedy the question of the passport, it allows the grounds for the revocation of the passport to be challenged.
Plaintiff at port of entry cannot seek relief under the statute by declaratory judgment, as statute limits that relief to those inside the US.
Plaintiff who claims to be a citizen, but is denied entry on the grounds that he or she is not a citizen, does not have standing to facially challenge a law requiring all citizens to carry a passport when entering or leaving the country, as it doesn't presently apply to them.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40077-CV0.pdf
This petition process must be exhausted prior to seeking habeas relief; although it does not directly remedy the question of the passport, it allows the grounds for the revocation of the passport to be challenged.
Plaintiff at port of entry cannot seek relief under the statute by declaratory judgment, as statute limits that relief to those inside the US.
Plaintiff who claims to be a citizen, but is denied entry on the grounds that he or she is not a citizen, does not have standing to facially challenge a law requiring all citizens to carry a passport when entering or leaving the country, as it doesn't presently apply to them.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40077-CV0.pdf
Fifth Circuit: Israel Escobar v. Lance Montee
Court does not have jurisdiction over cross-appeal in review of denial of qualified immunity, since deciding whether the police dog bites should be considered singly or as a group is not inextricably intertwined with the question of immunity for (non-dog) officers.
Qualified immunity, as it was objectively reasonable to allow the dog to continue biting the suspect until the suspect was fully handcuffed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10467-CV0.pdf
Qualified immunity, as it was objectively reasonable to allow the dog to continue biting the suspect until the suspect was fully handcuffed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10467-CV0.pdf
Fifth Circuit: Stemcor USA Incorporated v. Cia Siderurgica do Par
District court had subject matter jurisdiction under international convention to enforce the provisional arbitration award.
Although strict compliance with a state preemptive attachment statute would allow attachments of assets allocated by arbitration award on the understanding that they were subsequently to be converted to judgment, such a showing was not made here.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30984-CV1.pdf
Although strict compliance with a state preemptive attachment statute would allow attachments of assets allocated by arbitration award on the understanding that they were subsequently to be converted to judgment, such a showing was not made here.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30984-CV1.pdf
Fifth Circuit: William Erickson v. Lorie Davis, Director
State court judgment became final and the clock for federal habeas began to run after the period for challenging the state appellate decision in the Supreme Court ran out, not after the state judgment on remand became final.
Third Circuit: Nadine Pellegrino v. TSA
Since the Act distinguishes officers from employees, the purpose of the Act is to circumscribe and define federal tort liability, and subsequent caselaw, only criminal law enforcement officers are within the Act's waiver of sovereign immunity; airport security officers are not within this group, as they merely perform administrative searches.
Dissent: Act unambiguously includes investigative officers; airport security are officers of the United States empowered to conduct searches for violations of federal law; these searches go far beyond the level of an administrative search.
http://www2.ca3.uscourts.gov/opinarch/153047p.pdf
Dissent: Act unambiguously includes investigative officers; airport security are officers of the United States empowered to conduct searches for violations of federal law; these searches go far beyond the level of an administrative search.
http://www2.ca3.uscourts.gov/opinarch/153047p.pdf
First Circuit: Sindi v. El-Moslimany
As the list of defamatory statements were generally indicative of actual malice, there is no plain error in the finder of fact's determination that at least some of them were actionable defamation.
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
First Circuit: Tang v. Citizens Bank
Counsel's response of "okay, fair enough" after overrule of objection withdrew the objection, and there was sufficient evidence to establish that the jury might reasonably have rejected the "quid pro quo" theory of harassment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1365U-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1365U-01A.pdf
First Circuit: Acosta v. Local Union 26, Unite Here
Since an earlier draft of the bill provided the right to inspect and copy other agreements negotiated by the union, a statute giving members the right to inspect other agreements does not compel the union to permit note-taking while inspecting the agreements.
http://media.ca1.uscourts.gov/pdf.opinions/17-1666P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1666P-01A.pdf
First Circuit: Hajdusek v. US
Although made at the operational level, the Marine training program instructor's decision to work a recruit to the point of permanent physical injury was a discretionary balancing of policy goals, and therefore not within the waiver of sovereign immunity in the Act.
http://media.ca1.uscourts.gov/pdf.opinions/17-2137P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-2137P-01A.pdf
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