Federal Circuit: The Boeing Company v. US

 

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.

The Boeing Company v. US

DC Circuit: Committee on the Judiciary v. Donald McGahn, II

 

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.

Committee on the Judiciary v. Donald McGahn, II

DC Circuit: United States House of Representatives v. Steven Mnuchin (ORDER)

 

(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)

DC Circuit: George Johnson v. CRB (SEALED) / In re: Sealed Case

 

This is not the case that you are looking for.

George Johnson v. CRB (SEALED)

Eleventh Circuit: SMILEDIRECTCLUB, LLC v. Tanja D. Battle, et al.

 

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.

SMILEDIRECTCLUB, LLC v. Tanja D. Battle, et al

Ninth Circuit: Arconic, Inc. v. APC Investment Co.

 

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.

Arconic, Inc. v. APC Investment Co.

Ninth Circuit: Miguel Reynaga Hernandez v. Derrek Skinner

 

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.

Miguel Reynaga Hernandez v. Derrek Skinner

Ninth Circuit: USA v. Alexander Oriho

 

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.

USA v. Alexander Oriho

Ninth Circuit: USA v. Juan Fuentes-Galvez

 

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.

USA v. Juan Fuentes-Galvez

Seventh Circuit: Todd Kurtzhals v. County of Dunn

 

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.

Todd Kurtzhals v. County of Dunn

Seventh Circuit: USA v. Earl R. Orr

 

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.

USA v. Earl R. Orr

Sixth Circuit: Todd Courser v. Keith Allard

 

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.

Todd Courser v. Keith Allard

Sixth Circuit: Zackery Beck v. Hamblen Cty., Tenn.

 

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.

Zackery Beck v. Hamblen Cty., Tenn. 

Sixth Circuit: United States v. Benjamin Bradley

 

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.

United States v. Benjamin Bradley

Fifth Circuit: Plaquemines Parish v. Riverwood Production Co.

 

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.

Plaquemines Parish v. Riverwood Production Co.

Fourth Circuit: Robert Salley v. Paul Myers

 

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.

Robert Salley v. Paul Myers 

Second Circuit: Libertarian Party of Erie County v. Cuomo

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.

Libertarian Party of Erie County v. Cuomo

Second Circuit: Lehman Brothers Special Financing Inc. v. Bank of America N.A.

 [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.

Second Circuit: Lasher v. United States

 

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. 

Lasher v. United States

First Circuit: US v. Cotto-Flores

 

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.

 US v. Cotto-Flores