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.
There are a few more cases in the DC/Federal Circuits, but I'm out of time for this, so what happens in the Beltway stays in the Beltway.
Similarly, as useful as this is in the multitasking rotation, some projects will have my exclusive attention in the coming days. Back in about a week, G-d willin' and the crick don't rise.
(There have been times when this commonplacing covered absolutely every slip in the circuits, and I might get back to that, but not in the coming weeks.)
-CB
Former prisoner on federal supervised release might have reasonably believed that he was compelled by the terms of the supervised release to unlock his phone and answer the questions truthfully, so while the information can be used to revoke the supervised release, the 5A right to silence was invoked by operation of law, meaning that the information cannot be used in a subsequent prosecution.
Remand for consideration of inevitable discovery exception.
Dissent:
Deft's invocation wasn't automatic, since his subjective belief wasn't reasonable in light of the prevailing law.
A registered holder of a compilation copyright holds copyright in the totality of the work, not merely as described in the registration.
The protectable expressionof a day-planner notebook consists of the arrangement of the graphic and literary elements that might themselves be protectable works of authorship.
The order, dimensions, and division of the elements, however, is an unprotectable idea -- the protectable expression is limited to the material protected under authorship and its actual layout on the page.
Evidence of actual copying and significant sales does not as a matter of law present a genuine issue of material fact on a Lanham Act claim of product design trade dress -- the question of secondary meaning requires an interpretationof the meaning of sales and the form of the dress.
Substantial evidence that pension contribution scehme was integrated into the CBA, the Board decision affirmed the ALJ, who drew a rate from an earlier form of the agreement, but the ALJ's determination was arguably not dispositive of the holding, and substantial evidence exists to the contrary.
Accepted appendix to CBA and a reference in the CBA incorporating an attachment were sufficient writings to permit the pension contributions under a stsatute requiring written agreements for such payements.
Employer practice consistent with the writings at the end of the CBA meant that those terms remained in force after the period of the CBA, so the diminution of contributions was an unfair labor practice.
Disssent:
Unsigned, undated standalone writing insufficient. ALJ implicitly made this determination in accepting the earlier rate.
Anticompetitive effects of a supplier's monopoly behaviour on downstream adjacent markets are beyond the reach of Sherman Act rule of reason analysis, as the relevant market is different.
Refusal to deal horizontally with another supplier is outside of S2 where there is no indication that the dealing was profitable for the deft, there was a valid business reason to end the dealing, and the refusal to deal wasn't targeted.
Absent intentional deception, breach of contract to deal horizontally with other suppliers doesn't create a monopoly harm unless a harm to competition - as opposed to competitors - is proved.
Patent royalty rates different than the current market value of the technology are not inherently anticompetitive under antitrust law.
As the products of the supplier's rivals inherently embody some of the packaged patents, the supplier's licensing of the downstream use of its terchnology within its rivals products is not an inherently anticompetitive surcharge on its rivals products. Subsequent low but non-predatory pricing of its own units is also not an inherently anticompetitive behaviour.
A supplier's requirement that a downstream manufacturer commit to a license for products both supplied by the supplier and its rivals does not distort the area of effective competition; any unfair pricing of the license sounds in patent law, not antitrust.
Even if the exclusive dealing contracts that the supplier claimed were merely volume contracts in fact substantially foreclosed competition in the relevant markets, past harms do not justify a prospective injunction. And there were no viable competitors at the time.
Substantial evidence for denial of alien's claim of persecution because of her family's access to money, since within the claimed group, access to money is a more important factor than the fact of the family relationship.
Female heads of household and vulnerable females are not cognizable groups subject to persecution within the foreign country.
Although the photographs of the mannequins in the possession of the deft wasn't inextricably interlinked with the crime, their admission was more probative than prejudicial.
Testimony on historical abuse was appropriately admitted to establish character or propensity to commit certain acts.
Hearsay evidence from prior police investigation appropriately cabined by limiting instruction.
CJ:
Denial of a motion to intervene as of right, or, in the alternative, permissively is sufficiently final for appellate review even when made without prejudice, and the court invites the potential intervenor to file a "standby" motion not formalized in the rules.
Risk of nullification of right held under permit to build lucrative electrical transmission line suffice for standing in case adjudicating the permit.
Where a regulatory agency is defending a permit that vests economic rights in a company, the shared interests are not sufficient for a higher threshhold of shared interests. For the intermediate threshhold, more is required than simply being in favor of the same outcome. As the company's rights of eminent domain and its interest in the pace of the project are outside the regulator's remit, the company is entitled to intervene as a matter of right under the intermediate standard.
Comparator evidence in Title VII claim was not legally insuffient for being descriptions of individual comparators rather than statistical analysis of the discovery data.
Manager who made the discriminatory adjudication decision need not have been involved in ending the employment of the plaintiff, or even the unwitting dupe of those who did. The sole question is whether the plaintiff lost his job due to his race.
Business judgment jury instruction distinguishing discrimination from business judgment calls was not required as a matter of law.
District court's exclusion of witnesses on a late-amended list did not have to be analyzed in terms of the rule for information otherwise available to the other party; the relevant information was that they were to testify, and the court could rule that the notice was too late.
No error in back pay, given mitigation; no error in punitive damages, even given the existece of written policies against discrimination; no error in denial of reinstatiment given facts.
No clear error in sentencing court's determination that, by a preponderance of the facts, a functioning gun was used in the commission of the robbery.
5A claim properly preserved despite not being raised below, since the theory was that the sentencing factor found by a preponderance took into consideration deft's lack of testimony about the possession of the firearm.
Deft's misrepresentations waived 5A protections.
As the proffered evidence would merely have established that the foreign country had high levels of crime and violence, the agency did not abuse its discretion in declining to reopen a previously adjudicated immigration claim.
During visual inspections of the bodies of convicted prisoners and pretrial detainees, the Fouth Amendment protects some right of bodily privacy.
Where such a search is used as punishment, the 8th Amendment is implicated.
In the absece of evidence that administrators have exaggerated the justification for the search, wide-ranging deference to the administrator.
Reasonableness hinges on scope, manner, justication, and place.
Claim for qualified immunity not raised in motion for summary judgment is waived for present appeal, but can be asserted on remand. Waived defenses cannot be raised on appeal, forfeited defenses can be reviewed for plain error.
Remedy of decertification of class would require a cross-appeal.
As during the trial the appellant didn't argue the relevance of the excluded evidence to comparative negligence factors (including risk avoidance), and the jury wasn't instructed on these factors, no material harm from the exclusion of employee handbook, given that the verdict found negligence, but less than a preponderance, barring any recovery under comparative negligence.
Similarly, appellant didn't argue below that the excluded expert testimony would be useful in allocating fault, so no material hamr from exclusion.
Dissent:
As comparative negligence is simply the degree of negligence, arguing negligence below suffices to consider the harm. Per precedent, court should have a fair assurance of the error not being dispositive.
Given the intent of the statute and the possibility of resolving the question against the agency on non-constitutional grounds, the statutory post-enforcement judicial review provision strips subjects of agency civil procedings of general federal question right of intelocutory Article III review challenging the constitutionality of the appointment and removal scheme of the ALJ.
Dissent in part:
Case distinguished from precedent and from the type contemplated by the jurisdiction-strip statute; challenge to the ALJ appointment scheme doesn't implicate constitutional avoidance, outside agency expertise.
Warrant was sufficiently particular, as it specified the device to be searched and the offense for which the search was seeking evidence.
It would not have been reasonable to require the warrant affiant to explain where in the computer file structure the evidence was to be found.
Catch-all provision in warrant authorizing seizure of evidence of any and all other crimes was overbroad, but the remedy is to sever it from the otherwise sufficiently particular warrant.
Circuit precedent compels admissibility of evidence from plain view exception in a computer search.
Dissent:
Police had a sufficient theory of the case to explain the type of thing that they were looking for in the search.
If the warrant was flawed, plain view is out, since police could only seize the device.
No good faith exception for facially flawed warrant.
Administrative procedural challenge untimely, as the publication of the rule and subsequent change in policy started the clock, not the reply to the letter seeking administrative redress.
As the complaints to the agency were delayed and the agency offered little accommodations, there are no extraordinary circumstances justifying waiver of the time limit.
Plan's retention of substantial amounts of spun-off business' stock in a single stock fund states a claim against the Administrator's common law duty of prudence.
While allowing the participants to select funds can satisfy the statutory duty of diversification, it does not address common-law prudence.
Liability is possible where a frozen defined contribution plan does not timely divest the single-stock fund.
Dissent:
Participants could allocate their investments. The fact that prudence and diversification are codified separately means that they shouldn't be merged in common-law analysis.
[Again, folks, just my scribbling. This is never legal advice.]
Generic claim of retaliation actionable as gender discrimination under Title VII does not sound as a cause of action under S1983; Section VII explicitly includes retaliation as an actionable harm, and this would be surplussage if inherent in the right.
Circuit split flagged.
Sufficient attenuation in time, place, and interrogators between un-Mirandized US law enforcement intelligence questioning of US citizen in the custory of a foreign state and subsequent Mirandized admissions. Belief that admission of guilt to a US crime was a necessary condition of being released to US custody did not make the Mirandized statements involuntary.
Conspiracy to provide support to enemy force does not involve use of force sufficient to qualify as a crime of violence.
Concur/dissent: given duration of initial interrogation, attenuation in time and place within a deliberate two-step was insufficient, deft should have been told of inadmissibility of earlier statements.
Categorically, division of statute that criminalizes assualting, resisting, or impeding certain federal employees or officers is a crime of violence for purposes of the sentencing bump. As the element requires a display of physical aggression, it necessarily involves a use or threatened use of force.
The District Court did not abuse its discretion in denying a motion for relief from the judgment as antecedent to leave to amend the complaint, as the complaint had already been amended once, the court explained the deficiencies, and the plaintiffs chose instead to wait for discovery to vindicate the claim. The court's requirement of newly discovered evidence was appropriate, as movant identified no other extraordinary circumstances justifying relief.
Metzler Investment GmbH and Construction Laborers Pension Trust
Treaty with Indian nation guaranteeing free use and enjoyment of land did not create a presumption of immunity from tax as an analogue to the general exemption in later private allotment Act.
Treaty with Indian nation guaranteeing freedom from taxes and assessments on the land, construed as the nation would have understood it, does not except usage and extraction by members of the tribe from taxation -- it merely addresses the possessory interest.
Given reasonable inferences to be drawn from the warrant application according to the deft's behoof, sufficient nexus between the property, the deft, and the alleged crime, as the whole is greater than the sum of its parts.
Offense proscibed knowing crimal activity involving a certain type and quantity of drug, not necessarily the known involvement of a certain type and quantity of drug.
While there is authority for the idea that a motion to dismiss can be converted to a motion for summary judgment, there is no authority for the opposite, as the cour would be sua sponte lowering the threshold requirements for the movant -- the fact that a cucumber can be made into a pickle doesn't necessarily mean that a pickle can be turned into a cucumber.
District court correctly construed the allegation of misrepresentations in the amended complaint to be a claim for fraud in the inducement (dolo), and correctly applied the sophisticated purchaser defense to determine that the purchaser's reliance was not reasonable.
Government contractor did not waive statutorily mandated offsetting payments in contract terms that elected the governing administrative regulation that prohibited such offsets, since the government counterparty to the contract was required to follow the regulation that was contrary to law.
Government would have to at minimum identify a viable avenue of judicial redress available to contractor at formation.
Tucker Act jurisdiction for an illegal exaction claim requires nonfrivolous claim that the government, in obtaining the money, has violated federal constitution, statute, or regulation -- establishing that the claim is "money mandating" is not a jurisdictional threshhold.
Administration official's noncompliance with unchallenged legislative subpoena in furtherance of an enumerated power of the congress is sufficient concrete injury for Article III standing.
As the rules of the House delegate the subpoena power to the committee plaintiff, the harm is sufficiently particularized.
Appearance with sought documents would redress the harm.
Absent questions of individual particularized harm, separation of powers concerns do not inherently implicate standing.
Judicial enforcement of legislative subpoenas is the longstanding practice, doesn't disrupt balancing between legislative and executive since challenges to the subpoenas can be disputed, and much of the relevant precedent deals with the standing of individual legislators.
Dissent:
Judicial interference has only been the norm for about 40 years, other mechanisms exist.
Dissent:
Justiciability implicates injury-in-fact, as the analogy between harming a person and harming a branch of government is imprecise; separation of powers is inherently a consideration proper to standing analysis; denial of enumerated prerogative opens the door too widely; would permanently entangle the DC Circuit in the oversight process; Scotus has never resolved an interbranch dispute; unlike the Senate, the House has no legislative authority to seek judicial enforcement of subpoenas; even assuming standing arguendo, House plaintiff has no statutory or equitable cause of action; judicial enforcement diminishes the threat of impeachment.
(Denial of en banc with remand to consider intervening precedent.)
Dissent from remand:
Parties did not necessarily agree with the implied QP of the consolidated cases. Gathering for en banc and then punting wastes resources.
Dissent from remand:
Nonjusticiable. Especially when only raised by one chamber. Granting en banc sua sponte prior to panel holding was rare, and presumably done to cabin the holding with respect to the facts of the companion case.
United States House of Representatives v. Steven Mnuchin (ORDER)
Ruling on state-action immunity is sufficiently similar to one on qualified immunity to be the subject of interlocutory appeal as a collateral order. (This is a "binding alternative holding.")
Pro forma acceptance of Dental Board's rulemaking by the state's executive is insufficient active supervision by the government to shield the Board from antitrust claims under the state action doctrine; similarly, such acceptance of the rulemaking does not make the change an act of the sovereign, which would be shielded from suit ipso facto.
Concur / Joined in full:
Denial of state action immunity is a question of the interpretation of the Sherman Act, not one of constitutional right, and can be addressed after final judgment, especially in cases involving private parties. Circuit split flagged.
Dissent:
As the lower court reserved judgment on the state action immunity claim for summary judgment, when the record would be more fully developed, the denial is insufficiently final, and the order risks contradiction by subsequent development of the record prior to summary judgment.
Where a statute creates a right to seek contribution to an environmental settlement or judgment but provides that such contribution must be sought within three years of the entry of judgment, seeking contributions from de minimis co-polluters that indemnify them against any future claims does not start the clock to seek other contributions within a prospective limitations period triggered by a subsequent claim against the same site. A right to contribution can't arise until the judgment creating the liability is entered, and this division of eligible costs serves the purposes of the law
Judicial estoppel similarly does not preclude seeking a second round of contributions for a second judgment, as there's no inconsistency.
As there was no particular and objective basis for the Terry stop and the arrest of the foreign national was effectuated by handcuffing and placing into the patrol car prior to the contact with federal immigration authorities that gave probable cause for the arrest, S1983 suit against the officer states a claim.
As the actions of the Justice of the Police who called the officer to the courtroom upon leaning from a testifying witness that the plaintiff was in the country illegally were both a but/for cause and a proximate cause of the deprivation of 4A, the JP was a sufficiently integral participant for the purposes of a S1983 claim.
Circuit caselaw was clearly established at time, holding that lack of documentation or other admission of illegal presence was insufficient probable cause for an arrest for illegal entry.
Court order to repatriate funds is sufficiently final for interlocutory review.
Order to a pretrial detainee to repatriate funds in the amount of the alleged fraud violates 5A privilege against self-incrimination, as the location of many of the funds haven't been established or suggested by the government, and the limited use immunity offered by the prosecuting jurisdiction would not protect against use of information as a link in the chain or against uses by other jurisdictions.
As ensuring that the plea is knowing and voluntary under FRCrimP. Rule 11 implicates an alien deft's 5A Due Process rights, magistrate judge's plea colloquy that merely asked deft if his plea was voluntary was plain error.
Loss of reasonably expected overtime pay is sufficiently materially adverse to present an issue for trial on an ADA claim by an employee placed on paid leave.
Insufficient evidence of pretext to present an issue for trial where the employee's action facially violated workplace rules, but the employee claims that the supervisor's knowledge of employee's PTSD was a but-for cause of the adverse action.
Subsequent fitness for duty evaluation was not proscribed by statute or inconsistent with business necessity, given responsibilities of police officers.
Warrant affidavit that didn't include any actual statements of the confidential informant was sufficiently backed by information from investigation, and the good faith exception would save in in any event.
Discretionary rulings during the cross of the deft -- opening the door to evidence of contraband and past convictions -- justify retrial given prior finding of improper ex parte communications between the prosecutor and the judge.
Court appropriately dismissed S1983 & S1985 claims, as the constitutional interests were not pleaded with particularity.
Court appropriately did the same to state constitutional claims, as those are limited to official-capacity claims.
Alleged CFAA violations resulted in no harm, and there is no civil c/a to enforce the criminal elements of the statute.
Defamation claim was time-barred under state SOL.
To state a claim for civil conspiracy, the underlying tort harm needs to be established -- the defts can't be implicated in a tort that requires them to be the tortfeasors by a claim of conspiracy.
Other tort and RICO claims legally or factually insufficient.
Wiretap Act time-barred.
Court appropriately set aside default judgment against one deft on equitable grounds.
Sheriff entitled to qualified immunity as to S1983 claim arising from jail violence and overcrowding, as there was no personal knowledge of the specific circumstances that caused the particular harm, the claim does not establish that the Sheriff would be incompetent in thinking that the responses to the situation met constitutional muster, and there is no specific precedent indicating otherwise.
Criminal forfeiture under the statute is in personam, and therefore money judgments are permitted, despite the common law's historical aversion.
Proceeds from the crime that are subsequently disbursed to co-conspirators are a permissible basis for a forfeiture order against the deft.
No clear error in court's calculation of forfeiture, including funds possessed during the conspiracy and property acquired during the conspiracy, as deft could likely not have legitimately afforded the latter.
No Apprendi protections for criminal forfeiture determinations -- the protections are statutory.
Forfeiture not excessive under 8A.
Motion to remove to federal court was untimely, as the facts underlying the claimed notice of federal subject matter were already evident in the claim prior to the amendment of claim that prompted the removal.
Where an arresting officer later initiates a nolle prosequi, and the credibility-dependent facts of the case might allow a reasonable person to find that the plaintiff was innocent, a S1983 claim for malicious prosecution presents a genuine issue for trial -- the nolle prosequi might prove to be a sufficiently favorable termination.
For standing to challenge state firearms licensing scheme, plaintiffs must either apply for a license or demonstrate the futility of doing so.
11th Amendment bars claims against judges in their individual capacity when adjudicating firearms licensing applications, as the licenses issue under judicial order, although the refusals are communicated administratively.
As firearm licenses can be legitimately withheld for certain reasons, the statutory requirement of good moral character can be read to incorporate these reasons, and is therefore not unconstitutionally vague.
Licensing scheme doesn't offend Second Amendment, as there is a substantial relationship between the legitimate goals of the licensing scheme and the restrictions that it imposes.
[If I have this right...] Investment bank's payments to noteholders of SPV on the occasion of its pre-petition default can't be recouped in bankruptcy, as the relationship between the bank and the SPV was of the type of asset-exchange swap obligation explicitly immunized from bankruptcy's modification of contractual rights and obligations.
Lehman Brothers Special Financing Inc. v. Bank of America N.A.
As the order does not itself finally resolve any question on the merits and the statute provides for a second mechanism, a denial of a certificate of appealability on a motion to set aside the sentence is not a sufficiently final order for purposes of appeal.
Circuit split/tension flagged.
As Congress retains the power to legislate on police power matters in Puerto Rico, the amendment of the relevant statute to include commonwealths sufficiently indicated the intent of Congress that the law should apply to crimes committed entirely within the non-state commonwealth.
Sufficient evidence for conviction, as the impeachment of the witness didn't make the finder of fact's crediting of other evidence unreasonable.
Instructing the jury on the state predicate offense didn't confuse them about which offense they were weighing.
As live video testimony is only available in certain situations where the witness cannot reasonably communicate because of fear, allowing a witness to testify remotely where the fear was generalized to the situation and not specific to the deft, and the court accepted the witness' statement without adopting it as a reasoned finding, a retrial is an appropriate remedy.
Concur:
Constitutional status of Puerto Rico is still that of an unincorporated territory, as the law creating the Commonwealth changed governance procedures rather than constitutional status, and was not a compact.
There were a handful of decisions out from the 9th & Federal Circuit on Friday, but other work calls, and I need to close this window. Possibly to be covered tomorrow, depending on how long the list is.
Again, folks, if for some reason you're reading this, you're basically watching somebody take batting practice. Don't rely; don't rely; don't rely. Cheers.
CB
Given the specific misrepresentations made, and the fact that insurers would have otherwise more carefully scrutinized the clinic, sufficient evidence for a scheme or artifice to defraud, despite the fact that some percentage of the claims were legitimate.
Restitution, and sentencing calculations should have been offset for the percentage of treatments that were medically necessary. Forfeiture, though, looks to the gross proceeds of the criminal activity and did not have to be offset.
Earlier administrative determination of employer's identity does not bind later adjudication under claim preclusion, since the earlier determination found no liability, and the determination of the employer's identity was therefore not essential to the decision.
Administrative regulation, state law, and equitable considerations of delay prevent an ex ante rescission of workers' compensation insurance contract, where that rescission would defeat the insurer's liability for adjudicated claims.
No 5A DP violation where the agency's administrative error was in a proceeding that eventually proved nondispositive.
Arbitrator's decision that damages request was too speculative was not arbitrary or capricious, given insufficient evidence in the claim.
Federal statute providing for state administrative remedy, followed by federal arbitration, followed by Article III review provides sufficient enforcement mechanism to displace S1983 remedy.
Sheila Armstrong v. Mich. Bureau of Servs. for Blind Persons
Alien's appeal citing an exceptional situation justifying sua sponte reopening of the matter did not sufficiently exhaust a claim for a statutory reopening of the matter due to exceptional circumstances.
Given the evidentiary proffers of the parties at the preliminary injunction stage, state law compelled the court to attempt a reformation of the noncompete agreement as opposed to a preliminary injunction enjoining enforcement on the basis of overbreadth.
State trial court's determination that detective's summary of statements of non-testifying witness was not inadmissible hearsay because it didn't recite the witness' words and the detective's purpose in describing the statements was to explain the course of the investigation was an unreasonable application of Supreme Court precedent.
State intermediate appeals citation referencing harmless error does not independently preserve the issue for the federal habeas claim, as the decision was looked through in favor of the reasoned decision of the lower court, and the issue was not presented in the federal collateral challenge.
District court "misapplied" its discretion by recognizing two contracts in its holding, but only reversing its holding as to one on the motion to reconsider due to the fact that the other party had not argued the second contract; the other party was not sufficiently put on notice by one sentence mentioning the agreement in a brief.
Statute's categorical bar on contractual restrictions on subsequent employment, followed by closely defined exceptions, creates a presumption that the statute ratifies the common law antipathy to such restrictions, rather than a rule of reason.
State consumer protection law in the state law elected in the contract doesn't apply, as there is a common law presumption against its extraterritorial exception, and no conduct harming consumers occurred in the state.
Continued possession of potential trade-secret materials from prior employer insufficient to establish acquisition under the law of the state.
District Court's interpretation of the terms of the arbitral agreement enjoining use of the technology and methods in a patent application is reviewed for plain error, as the reviewing court must make factual determinations as to whether the uses are sufficiently similar.
District court's restatement of the arbitral award did not substantially alter the law of the case.
Fees incurred prior to the filing of claim can be recovered under a fee-shifting statute where they are an attempt to resolve a threatened claim.
Court reasonably found fees to be nonsegregable as they generally advanced the litigation position.
State rules requiring party to seek contingent appellate fee award in the trial court are procedural, so the federal rule allowing award of fees by the reviewing court prevails.
Dismissal with prejudice of a erroneous claim that an earlier decision of a regulatory body relied on a preempted state statute does not deprive the plaintiff of the right subsequently to assert the preemption of the statute as relied upon by another regulatory decision.
Dispute as to two of the parties is now moot, given private settlement of claims, and subsequent procedural steps and the possibility that an allegedly preempted statute might be relied upon in the future is insufficient to preserve a live case or controversy between the parties.
While the voiding of a past agency order is not obtainable under the Ex Parte Young exception to state sovereignty, subsequent enforcement actions in furtherance of such an order do state a claim.
As the suit is seeking a remedy in equity, the non-jurisdictional bar against S1983 claims against political subdivisions does not deprive the court of jurisdiction.
Statutory requirement of utility capability implies an inquiry into nearby infrastructure.
CJ, et al., Concur/Dissent:
Federal statute defining utility service area applies to the degree that federal funds were used to construct the infrastructure.
Concur/Concur with Concur/Dissent:
Fact-bound decision on remand.
Concur:
Where a state law statute creating a private cause of action is preempted, the c/a can arise in equity, and where the claim presents a substantial question of federal law, there is federal jurisdiction.
Concur:
Although, by Bivvens analogy, S1983's exclusion of political subdivisions should extinguish a correlative implied cause of action in equity arising under Ex Parte Young, precedent sufficiently recognizes the validity of an equitable suit for prospective relief against state officials' actions that violate the federal constitution.
Execution of administrative warrant under the auspices of the state medical board and the subsequent preparation of a report is entitled to the qualified immunity of law enforcement, not the absolute immunity of a prosecutor.
Claims of malicious prosecution and abuse of process are inherently tort claims, not constitutional violations, and do not sound in S1983 actions -- any underlying constitutional violation must be raised according to its own terms.
Remand for the district court to consider whether underlying plausible 4A claims were waived by the plaintiff's initial tort-based filing under notice pleading.
Sufficient basis for plea to specific drug quantities, given duration of daily drug sales; sufficient basis for conspiracy plea as to buyer/seller relationship where the relationship goes on for long enough and sufficient mutual trust is established.
Court's instructions at plea colloquy did not rise to the level of plain error.
Ineffective assistance waived for not being raised below, preserved for collateral challenge.
Subsidiary user on a cell phone plan is bound by arbitration agreement referenced in electronic signature at time that the subsidiary purchased the extended service.
Contra proferentum notwithstanding, the arbitration agreement's incorporation of successors and assigns and the inherently durational nature of the contract mean that after-acquired subsidiaries are parties to the arbitration agreement.
Present dispute is within the scope of the arbitration agreement, given the statutory presumption for arbitration and the terms of the agreement compelling arbitration of all disputes and claims between the parties.
Consumer's right of action under the credit reporting statute arises through notification of the reporting agency, so a consumer's direct notification of a bank of an error in the report does not suffice to state a claim arising from the bank's statutory duty not to provide inaccurate information.
Prior military FOIA disclosures about specific incidents did not generically waive withholding about similar incidents; the waiver doctrine requires that the waiving disclosure be identical in both specificity and matter, and different incidents are inherently different matters.
Although the military cannot, under a mosaic theory, withhold disclosures of large amounts of data, but the disclosure is justified where the military contends that each element of the mosaic (each disclosure) might provide information about critical vulnerabilities.
As the state's attestation requirements for mailed-in votes is only imposed in a few states, and the state has not advanced any interest behind it, lower court's entry of consent judgement abrogating the requirement should not be stayed. The elevated standard for stays close to an election is met, as the last election didn't have the requirement, and the state hasn't suggested that it would confuse voters. Political party has standing to intervene for the purposes of the pending appeal.
"...a salmagundi of affirmative defenses."
Grounds for denial of intervention of right (or, in the alternative, permissive) did not have to be extensively described by the court -- the decision is reviewed for abuse of discretion in light of the record.
No abuse of discretion of denial of intervention of right by citizens attempting to stop cell-phone tower on church steeple where it is apparent that the existing parties will attempt to vindicate the specific statutory protections that the citizens intended to raise; the litigation strategy of the existing parties doesn't enter into the calculus.
No abuse of discretion in denial of permissive intervention, as existing parties would raise the smae issues, the putative intervenors had no cause of action under state law, and it's really important to build cell phone towers quickly.
T-Mobile Northeast LLC v. The Town of Barnstable