Tenth:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563811.pdf
DC:
Fed Circ
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.
Tenth Circuit: Animal Legal Defense Fund, et al. v. Kelly, et al.
Since the Act prohibits making false statements in an attemp to gain consent to the control of property with the intent to damage the interests of the facility, its viewpoint discrimination requires strict scrutiny.
Not all attempts to damage the enterprise of an animal-processing facility are harms that would merit decreased First Amendment protections.
Under circuit precedent, the photographing of animals or taking notes about habitat is creating speech; the law's criminalization of this when done for the purpose of injuring the enterprise is similarly viewpoint discriminatory. The state can't limit the scope of its prohiitions due to the favor or disfavor of the message.
The same holds for trespassing with the intent to harm the enterprise. Although there is no right to trespass, false speech is an element of the offense through the requirement of effective consent.
DISSENT
Better remedy would be severence of deception from the intent requirement.
Regulating false statements of fact that cause harm is constitutional.
Right to choose who enters one's property is fundamental.
The law merely distinguishes harmful trespass from trespass without the intent to harm.
The actual speech here isn't implicated, but rather the intent behind the speech.
Private landowners generally have the right to restrict photography on their premises.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563866.pdf
Ninth Circuit: Ford v. Peery
DISSENT FROM DENIAL OF REHEARING EN BANC
Panel inappropriately hypothetically considered the law as misstated by the prosecutor under AEDPA deference, rather than considering the state court's judgment of the prejudice caused by the statement.
Dicta on questions that are germane to the case and resolved after reasoned determination in a published opinion are binding in the circuit. This has proved problematic and some have said that it's in tension with Article III.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf
Ninth Circuit: Marroquin v. Garland
Given the identical punishments, the structure of the statute tends to suggest that the two proscribed acts are two means of committing the same offense, rather than two distinct offenses, and no caselaw or charging documents in the present case indicate a certainty to the contrary. Intervening higher authority allows the present panel to overrule a circuit decision to the contrary that was based entirely on the statute's phasing in the disjunctive. As the offense is more broad than the generic crime, the law is not a valid immigration predicate aggravated felony.
DISSENT:
Under the state's law, principals and accessories after the fact are mutually exclusive roles that inherently require different elements of proof. Charging document establishes that petitioner was convicted as a principal.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-72922.pdf
Ninth Circuit: Stiudent A v. San Francisco Unified School District
Although the plaintiffs claim to be pursuing a systemic claim addressing widespread shortcomings, they aren't challenging a policy or practice of general applicability, but rather pointing out several instances in which the system didn't work correctly; administrative exhaustion is therefore required in order to develop the administrative record and give the state a chance to remedy the situation.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/20-15386.pdf
Ninth Circuit: Sura v. Garland
Evn absent evidence of their credibility, an Interpol Red Notice and a foreign arrest warrant for a serious nonpolitical crime can, in the light of concessions made by the petitioner, constitute serious reason to believe that the petitioner committed the crimes referenced, and therefore a basis for shifting the presumption when applying for cancellation of immigration removal.
Even absent a formal adverse ccredibility decision, the suspicious timing of the petitioner's departure from El Salvador, and the IJ's determination of lack of specificity is sufficient evidence to establish that the petitioner did not prove by a preponderance that there wasn't serious reason to believe that he had committed the crimes.
Withholding of removal under the torture convention also sufficiently supported, given the unlikeliness of the foreign government's consent or acquiescence in any future torture.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-71839.pdf
Ninth Circuit: Herring Networks v. Maddow
As precedent compels that the state-law right to preemptive dismissal of spurious defamation claims be treated as a dismissal for not stating a claim if made on a matter of law and as a summary judgment if made on a fact-dependent determination, the court was powerless to look beyond the pleadings to the additional evidence provided by the non-movant when adjudicating it as a motion for preemptive dismissal on a matter of law.
A reasonable viewer would discern from the tenor of the show that the only fact being reported by the television host was the content of the news story being discussed, and that the rest was opinon and commentary. By disclosing the specific factual basis of the statment, the host reveals the rest to be commentary and hyperbole.
No abuse of discretion in denying leave to amend, since it was never requested, and would have proved futile anyway.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-55579.pdf
Ninth Circuit: Allison v. Tinder
(Rakoff of SDNY, J.)
The court's assessment of the plaintiffs' case deprecated a holding in which the plaintiff class members were also putative members, and in which the holding favorable to their interests was law of the case, in which they would release their claims by the present settlement.
Given this diminishment of the plaintiffs' claim, the fact that the value of the injunctive relief to the class was unsupported, the fact that many class members were no longer site members or might not seek relief, the existence of a clear-sailing provision and the substantial amount of plaintiffs' attorneys' fees meant that the court abused its discretion in approving the settlement.
The approval of the attorneys fees was an independent abuse of discretion, since it was calculated as a percentage of the sum of the value of injunctive relief that should have formed no part of the calculation and an estimated cash payment that assumed a full claim of the award.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-55807.pdf
Ninth Circuit: Sharma v. Garland
As there was only one session of physical beatings, the single detention was only 18-19 hours, the threats were relatively few, and the instruction by the local police to his customers that they shouldn't repay their loans was offset by the fact that the petitioner wasn't killed and was free to seek other employment, there was substantial evidence for the Bureau's determination that past persecution was not proved.
Similarly, the Bureau's determination of insufficient evidence to show a reasonable fear of future persecution is supported by the decades since petitioner left the country, his family's continued residence there, and petitioner's past international travel after which he was able safely to return to his home country.
The determination that past harms didn't rise to the level of persecution necessarily entails the premise that the past harms didn't amount to torture.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-70238.pdf
Ninth Circuit: USA v. Amauje Jason Ferguson
Magistrate Judge's omission of query about compulsion from the plea acceptance colloqouy was insufficient plain error for reversal, since, absent a claim that compliance with the rule would have resulted in a different plea, there was no effect on substantial rights, and the text of the rule deems errors that don't affect substantial rights to be harmless.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-10228.pdf
Eighth Circuit: Leroy Leftwich v. County of Dakota
Absent a showing of delioberate indifference or subjective awareness of risk to the detained arrestee, there is no issue for trial on the S1983 claim.
Absent a policy of mental health screening, using personal assessment to answer the mental health questions on the intake form was a discretionary act, rather than ministerial in nature, as was the staff's personal meeting with the arrestee. County's decision to have a formal mental health assessment 72 hours later was policymaking, not operational, and therefore incurred statutory public entity immunity.
Court did not abuse its discretion in denying aleave to amend to a party who did not notice the depositions witnesses who could provide the information that ws the basis of the motion to amend prior to the last date to amend the claim.
http://media.ca8.uscourts.gov/opndir/21/08/201821P.pdf
Eighth Circuit: Designworks Homes, Inc. v. Thomson Sailors Homes, L.L.C
Given the differences in their designs, triangular atria alone are insufficient to establish the identity of total concept and feel necessary for copyright infringement; no reasonable minds could differ on whether there was a substantial similarity of expression in the designs.
Although the court erred in saying that attorneys fees awards were the rule rather than the excpetion, it did not abuse its discretion in the actual award of fees in this case.
Seventh Circuit: Thomas Prose v. Molina Healthcare of Illinois,
Evidence as to where, how, and to whom allegedly false representations were made can state a claim under the statute for fraudulent claims against the government.
Evidence as to the who, what, where, when, and how can state a claim for fraudulent inducement in contractual negotiations; a relator who is not a party to the negotiations might be unable to provide details of the negotiations.
Implied false certification is a species of fraud, and therefore subject to heightened pleading.
Continuing to bill the set capitation after ending the subcontracting that provided enhanced services states a claim for implied false certification under the Act, since the services were a material term of the deal.
DISSENT (CJ)
Mere request for payment from the government while not materially complying with a contractual term is insufficient to state a claim under the Act, given the Act's extreme remedies, including treble damages.
Contract was a contract to provide beneficiaries with access to needed services, not needed services themselves.
These circumstances wouldn't state a claim, even absent heightened pleading. There was no express factual falsity; the omission was an implied falsity. Precedent requires that a request for payment also make specific representations in order to be actionable. Suggesting that noncompliance is material means that any noncompliance is material.
Seventh Circuit: Jerry Smith, Jr. v. Melvin Finkley
Given issues of material fact about whether plaintiff was surrendering to police or lunging for gun and whether plaintiff was an immediate threat to safety of officers or others, court has no jursdiction to decide either aspect of the issue of qualified immunity on interlocutory appeal. The fact that the plaintiff wasn't combative or armed complicates the application of relevant precedent that asks if the right was clearly established
An appeal of the sufficiency of the evidence for the denial of quualified immunity can't be decided on interlocutory review.
DISSENT (CJ)
Some of the benefit of qualified immunity is lost if the case is allowed to go to trial; the question is conceptually separate from the underlying claim. The evidence establishes the historical facts of this situation, and the appellate courts can resolve the issues of law arising from those facts.
Seventh Circuit: Blake Conyers v. City of Chicago
Claim arising from the destruction of arrestees' property after a set period sounds in 14A Due Process or 5A Takings, not under the Fourth Amendment.
While the property was taken under the police power rather than eminent domain, federal constitutional limits remain on the disposal of the items. In this context, a thirty day holding period with adequate notice suffices for the purposes of the Fifth Amendment.
Screenshot with evidentiary foundation from the head of department suffices to establish that the website was functioning during the relevant period.
Plaintiffs' burden to prove that they lacked access to the internet in order to discover the relevant notice requires that they establish why the specific procedures of mediated inmate internet reference access were insufficient.
Seventh Circuit: Marvin Carter v. Chris Buesgen
Where a federal court dismisses without prejudice in order to allow exhausion of pending direct and Habeas claims in the state system while determining that there has been inordinate delay in those claims, the futility of either amendment or recourse to the state system can make the dismissal without prejudice sufficiently final for appellate jurisdiction.
Extreme delay in the state system can excuse the federal statutory requirement that state claims first be exhausted.
Sixth Circuit: Henry Kaplan v. Univ. of Louisville
Ex Parte Young isn't available as an exception to the state university's sovereign immunity, as the university is not a state official, and administrators are being sued in their personal capacities here.
Absent statute or contract, there is no property interest in the appointment to department chair if that chair does not itself lead to a form of tenure.
A dismissed professor can have received adequate due process even if the reviewing committee declined to recommend dismissal.
Placement on paid leave prior to dismissal proceedings was not a deprivaiton of due process, given the evidence in the record and the sufficiency of the proceedings.
Plaintiff must have exhausted 14A liberty interest claim in reputation by requesting a name-clearign hearing; the university was under no obligation to provide for it in its procedures, its refusal to toll the statute of limitations for the present suit did not preclude a paralell proceeding, and the present suit is not a sufficient proxy.
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0187p-06.pdf
Second Circuit: Jian Liang v. Garland
Petitioner's omission of the manner in which he discovered that he was on a blacklist was not a minor or extraneous detail, and the nationalization of the persecution implied by the blacklist was central to the claim; the late disclosure cannot be excused by saying that the petitioner and witnesses considered it a minor detail.
Agency was under no obligation to continue the proceedings to discover corroborating evidence. Adverse credibility determination based on the belief that the detail was a fabrication is well supported by the record.
Insufficient evidence of country-wide persecution of people of petitioner's faith.
First Circuit: US v. Saccoccia
Pandemic disease does not transform aggregated minor health concerns into the extraordinary and compelling justificaiton for early release required by statute.
Actual diagnosis, rather than the presence of diagnostic markers indicating likelihood but not certainty, is required in a petition for early release on compassionate grounds.
While material interference by prison administration or stonewalling of medical testing can be the basis of a claim of extraordinary and compelling justification, the record here does not support such a claim.
District Court's averral that it was exercising its broad discretion in denying early release given the balance of the factors was sufficient; there was no need to mechanically review each of the sentencing factors.
First Circuit: Ass'n Hosp. del Maestro, Inc. v. Becerra
Agencies can exercise discretion only in places of ambiguity or silence; they are unable to amend a clear statutory mandate that seems at odds with the purposes of the legislation. Agency did not err, and the rulemaking did not run afoul of the APA.
Agency's implementation according to statute did not offend Equal Protection; proof of discriminatory of intent would also be needed.
Mandate requiring extension of policy in the same manner and to the extent that it applies to existing facilities mans that the same methodology should be implemented to the same extent, not that the facilities should be funded to the same extent.
http://media.ca1.uscourts.gov/pdf.opinions/19-1475P-01A.pdf
Eighth Circuit: Ascente Business Consulting v. DR myCommerce
Proof that a company had certain knowledge prior to its employees' contrary statements is insufficient to state a fraud or fraud-adjacent claim under the state's heightened pleading rules.
Evidence that work stopped after a certain meeting can't speak to the mindset of statements made at that meeting. Evidence of a contrary financial interest is at most only a factor, as is the amount of work that it would have taken to accomplish the task.
Expert testimony on ambiguity of contract terms is inadmissible, as ambiguity is a legal conclusion.
Given testimony that the overruns were paid to preserve the business relationship, there was no question for trial on the reliance on the underlying representations. Under state law, the counterparty's expectations of the plaintiff's reliance are insufficient to establish the plaintiff's reliance.
Eighth Circuit: Anthony Vines v. Welspun Pipes Inc.
Court did not clearly err in refusing to sanction a settlement under the statute due to the fact that the attorneys' fees had not been negotiated separately from the underlying claim, given the simultaneous negotiation in emails, calculation of fee on the basis of the the case proceeding without settlement, and implicit tying of the agreement on fees to the agreement on the underlying claim.
Award of de minimis attorneys' fees was an abuse of discretion, as the amount must be determined by determination of the lodestar value by multiplying the hours and the rate.
Given that the only rmaining matter is the calculation of attorneys' fees, no plain error sufficient to reassign on remand.
DISSENT:
Negotiating a wage claim simultaneously with the fees creates a significant conflict of interest. Plaintiffs counsel, in fee negotiations, said that deft was getting a "pretty sweet deal." Court below held that lodestar was inapplicable on this record.
Eighth Circuit: Ka'Torah Prowse v. Walter Washington
When an administrative appeal is filed under the statute, and the petitioner maintains that the papers were filed on certain dates and in a certain order, but this is contradicted by the receipt stamps on the documents, the issue presents a question for trial; the date stamps are not dispositive.
Eighth Circuit: United States v. Clarence Robinson
Existence of a second statutory basis, based on the drug quantity determinations made during sentencing, for the life sentence imposed at original sentencing does not make the petitioner ineligible for relief under the statute. Since the statute looks to the offense of conviction and not the underlying facts, the sentence imposed for the offense of conviction should be modified.
DISSENT:
Given the findings, the petitioner would have been sentenced under the second statutory basis at the original sentencing, which makes him ineligible for relief.
Eighth Circuit: Scott McLaughlin v. Anne Precythe
Although a simple Google search would likely have revealed the impeachment evidence against the defense expert witness in a capital case, not investigating the witness beyond a reasoble reliance on the judgment of the professional commnity was not ineffective assistance of counsel.
Petitioner wasn't prejudiced by lack of replacement psychologist's testimony, a witness who would have provided evidence on an aggravating factor on which the jury ended up not being able to reach a decision, since from a legal point of view the testimony would have been duplicative of the overwhelming evidence on this point; there was therefore not a substantial likelihood of a different result.
AEDPA deference to state habeas finding to the contrary offers an independent ground for overruling the district court ruling that petitioner was prejudiced by the lack of testimony.
Since the ineffective assistance claim wasn't substantial, petitioner can't raise it in federal habeas after defaulting in state habeas, since excuse of default requires a substantial claim.
While jury instructions can't require that a jury be unanimous on any one mitigating factor, they can require that the jury be unanimous in its decision that the mitigating factors outweigh the aggravating factors.
District Court erred in holding that the weighing of mitigating and aggravating circumstances was a finding of fact upon which the legislature had conditioned an increased punishment and that therefore must be performed by the jury, since the supreme court of the state has held in this case that the same precedent referenced by the district court was inapplicable.
CONCURRENCE:
Although the investigation of the expert witness was insufficient, there was no prejudice, given the other evidence offered.
State supreme court has held that only the existence of a single mitigating factor need be found by the jury under the statutue, as it constitutes eligibility for the increased sentence.
Seventh Circuit: Frances Rogers v. CIR
Innocent Spouse relief unavailable when the spouse in question is represented by counsel in a formal proceeding (even if that counsel is their spouse), attends the entire proceeding, and is highly educated.
When assessing standard of living when determining if the spouse had a duty to inquire about the questionable tax filings, the relevant consideration is whether there was a substantial increase in the standard of living, not whether it was generally high.
A legally sophisticated party's affidavit claiming that there was no conflict in being represented by their spouse in a tax case involving a jointly filed return waives a subsequent right to a new trial based on evidence that their counsel allegedly didn't call witnesses that would support the legally sophisticated party's claim to Innocent Spouse relief.
Sixth Circuit: James Williams v. Brian Maurer
Since the defts didn't move for summary judgment on the False Arrest claim along with the plaintiff in the S1983 claim, summary judgment for the plaintiff isn't reviewable at the interlocutory stage, since it doesn't relate to the assertion of qualified immunity. Pendent jurisdiction would be inapporpriate, as the False Arrest claim isn't logically subsumed in the related claim being decided in the present appeal.
Claim arising from nighttime warrantless entry under exigent circumstances presents a genuine issue for the finder of fact, since the tip leading to the entry was anonymous, not specific as to location, and was only superficially corroborated. Warrantless entry without reaonable belief of exigent circumstances violates clearly established law.
A claim arising from excessive force asks whether the level of force used was gratuitous, not at the level of injury that the plaintiff sustained. The right to be free of excessive force used in an unconstitutional warrantless forced entry is clearly established.
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0184p-06.pdf
Sixth Circuit: United States v. Edmund Phillips
As the statute doesn't limit the post-sentencing review of restitution interest charges, and the most logical reading of the circumstance is that a petition arising from changed circumstances is unlikely to happen at sentencing, the court erred in ruling that it had no jurisdiction to modify an interest obligation after sentencing.
Extensive review of statute's structure and history.
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0185p-06.pdf
Sixth Circuit: Laura Canaday v. The Anthem Companies, Inc.
As the statute makes no provision for nationwide service of process, Due Process requires that the statutory joinder of out of state parties to a statutory collective action prove sufficient minimum contacts of the original deft within each forum state of the out of state parties.
DISSENT
The addition of new plaintiffs doesn't change the singularity of the lawsuit, within which the court has already acquired its specific jurisdiction. Alternatively, the deft's conduct towards the out of state plaintiffs relates to its conduct within the original forum state.
As it's a national statute, interests of particular states aren't implicated in the same way.
The statute's designation of added plaintiffs as parties is merely to distinguish their status from that of representatives without a personal interest.
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0186p-06.pdf
Fifth Circuit: United Steel, Paper and Forest v. Anderson
As none of the comparators had records as bad as that of the plaintiff, and all of the other plaintiffs derived their interest from the plaintiff's claim, the issue of pretextual justification doesn't present a question for trial.
Equal Protection claim on behalf of the association to which plaintiff belonged is precluded by Supreme Court precedent as a class-of-one claim given the context of discretionary public employment.
Mere assertion that state officers granted immunity by the district court were acting outside the scope of their duties and not in good faith constitutes a forfeiture of the issue on appeal due to lack of argument.
https://www.ca5.uscourts.gov/opinions/pub/20/20-50501-CV0.pdf
Fifth Circuit: Ledford v. Keen, et al
The claim that the directors of the rodeo corporation had run the corporation as a sham and therefore that the plaintiff was entitled to equitable tolling when adding the directors to her claim adequately stated a claim for relief, but under governing state law, undercapitalization alone is insufficient to establish that the corporation was a liability shell subject to veil-piercing.
https://www.ca5.uscourts.gov/opinions/pub/20/20-50650-CV0.pdf
Third Circuit: Dianoias Eatery LLC v. Motorists Mutual Insurance Co
The existence of unfiled potential legal claims arising from the same circumstances does not mean that a court lacks statutory jurisdiction to issue a requested declaratory judgment; under the statute, such claims aren't waived by seeking declaratory judgment as to the allocation of rights and responsibilities, and can be raised in a subsequent action.
Circuit precedent requiring the court to consider the redress from a federal court judgment doesn't implicate the effect of federal rulings on state law, but looks to the ability of a court to accord final relief to the parties.
Circuit precedent requiring the consideration of the litigation of identical issues in state court assumes identity of parties as well.
Even within the context of the pandemic, the issues raised here are generic issues of contract and policy exclusion interpretation, making a prudential remand on the ground of undetermined state law unjustified.
Since the state courts have no legislative priority in matters of public health, balancing policy exclusions against state public policy interests is not peculiarly within the jurisdiction of the state courts.
DISSENT
Factors relevant to prudential abstention aren't exhaustive; states need to fashion a comprehensive plan to recover from the pandemic; federal speculation on state law risks undue delay.
Third Circuit: Insurance Co of the State of Pennsylvania v. Alfred T. Giuliano
The suretyship for the construction contract was not discharged at tender letter, occupancy, or final completion nof the structure, but by the final payments to the completion contractor; the obligee therefore held the superior interest to the assets of the defaulting party, and could waive its claim to the defaulting party's tax refund.
Settlement order explicitly referencing the tax refund and holding that nothing in the settlement could limit any interest of the surety in the refund preserved no interest, as the suretyship had not acquired its priority interest prior to the settlement agreement.
https://www2.ca3.uscourts.gov/opinarch/203057p.pdf
Second Circuit: Connecticut Parents Union v. Russell-Tucker et al.
An advocacy organization seeking organizational standing to challenge a government action can't merely rely on its expenditure of funds in opposition to the measure, even at the request of its members; it must establish an injury in fact by showing an involuntary material burden on its established core activities.
Claim for expenditures against the measure needs to be supported by proof that existing activies were hindered, and that the expenditures were material.
Second Circuit: United States of America v. Sinmyah Amera Ceasar
Trial court abused its discretion by considering the need for healthcare and rehabilitation nearly to the exclusion of other sentencing factors, and without considerig the disparity between the deft's sentence and those of defts with similar backgrounds who committed similar crimes. The deft's situation is distinguished from that of other individuals with disproportionately lenient sentences by deft's lack of cooperation and violations of pre-sentence release.
Second Circuit: Revitalizing Auto Cmtys. Env’t Response Tr. v. Nat’l Grid USA
Under the FRCP, an entity (such as a trust) might be the real party in interest, but lack legal capacity to sue.
Under the state's law, the trust has no capacity to sue, since it is viewed as a fiduciary relationship rather than a distinct entity. Additionally, the trust's organic docments vest legal capacity in the trustee.
Upon determination that the party lacks legal capacity, it is possible to remand with that finding on the expectation that the complaint will be amended.
A claim for both past and prospective costs incurred is prudentially ripe if the past costs are enough to sustain the claim, even though a ruling might bind the parties as to future costs incurred.
Contribution claim under a different section of the law was dismissed pendant to the dismissal of the earlier claim, and therefore unreasoned in light of the plaintiff prevailing on appeal; the case is remanded with both the contribution and recovery claims, and the District Court has the discretion to exercise supplemental jurisdiction over any re-filed state law claims.
DC Circuit: Selvin Solis Meza v. Tracy Renaud
Since the plaintiff is seeking to relitigate a question decided adversely in a removal hearing, the question arises from the removal action or proceeding; Article III review is therefore limited by statute to narrow areas, including timely challenge to final order of removal.
DC Circuit: Gunay Miriyeva v. USCIS
Statutory judicial review mechanism for denied naturalization applications implicitly forecloses parallel district court jurisdiction due to the fairly discernible intent of the comprehensive and interrelated statutory scheme, the fact that the exclusive remedy would not foreclose meaningful review, and the fact that the requested relief -- a change in agency policy that would be dispositive for the plaintiff's case -- is not wholly collteral to the statute's provisions.
Tenth Circuit: Lupia v. Medicredit
Although insufficient harm under common law, the improper phone call from a debt collection agency was of the same kind of harm recognized at common law as intrusion upon seclusion, and Congress addressed this type of harm in the creation of the statute.
Summary judgment for the nonmovant wasn't on novel grounds of which the movant had insufficient notice; the nonmovant is entitled to point out that the motion for summary jusgment is unsupported by the evidence.
Bona fide error defense unavailable as a matter of law, since no reasonable jury could find that the policies were designed to avoid the making of unauthorized calls.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110562706.pdf
Ninth Circuit: Guerier v. Garland
Since the due process rights of aliens who have not effected an entry into the US are coextensive with the statutory scheme and mechanisms for redress within that scheme devised by Congress, when Congress excludes that form of redress, Article III courts have no jurisdiction to hear even a colorable constitutional claim of deprivation of the due process accorded by statute.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-70115.pdf
Ninth Circuit: Decker Coal v. Pehringer
ALJ decisions on motions for reconsideration or modification of award under the statute are reviewed for abuse of discretion, since the statute grants the ALJ broad discretion, and judgments on motions to reopen and reconsider in other areas of law receive similar deference.
As the ALJ's have no policymaking role and are employed in the implementation of the statute at the discretion of the Executive, the protections against removal of ALJ's so employed do not violate Article II powers of the Executive.
ALJ's are judges who make decisions that are subject to vacatur by people without tenure protection. Properly appointed ALJ's don't trammel on the President's executive power.
Finding of inproper removal protections would not imperil the decisions of a lawfully appointed ALJ that have been susbsequently ratified by the Secretary.
Given the specific procedure in the statute, ALJ did not abuse discretion in denying motion to reconsider and modify; the statute empowers the agency to administratively modify the finding, and specifically forbids the initiation of a reconsideration before an ALJ. Given the interest in finality, no abuse of discretion in denying motion to reopen.
Once the presumption arising from fifteen years of work in similar considtion arises, the burden shifts to the employer to disprove total disability due to pneumoconiosis.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-71449.pdf
Ninth Circuit: Flores-Rodruigez v. Garland
Alien facing deportation was not sufficiently put on notice that his past claim of having been born in the US was to be the main issue in the final heaing on the merits, on a motion to sua sponte reconsider the earlier determination of time, place and manner into the country. When a person is charged with a crime or charged with allegations waranting removal from the country, that person is fairly entitled to notice of the claims against him and an opportunity to be heard in opposition.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-70177.pdf
Ninth Circuit: Perez v. USA
Alleged violation of a jus cogens norm doesn't waive federal soveriegn immunity for purposes of a claim under the Alien Tort Statute under a theory of extra-constitutional wrongdoing.
Equitable tolling not available for second cause of action, which under the law at time of filing would bar recovery under any other cause of action, since this judgment bar would prohibit subsequent recoveries, but did not address claims filed in the same suit, either one of which might have prevailed.
Extension of Bivvens unavailable, as an action against the agency head would be an inappropriate attempt to change government policy, and the claim against the agent who actually shot the Mexican citizen on the border fence has national security implications.
CONCURRENCE IN THE JUDGMENT AND PARTIAL CONCURRENCE
No need to reach sovereign immunity, as the elements of the ATS claim aren't met.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/17-56610.pdf
Ninth Circuit: Michael Sackett v. U.S. Environmental Protection Agency
Case was not made moot by agency's withdrawal of an enforcement order, where the underlying determination of jurisdiction remained, since it was not absolutely clear that the agency would not seek to reinstate the order.
Although the government enjoys a presumption of good faith in voluntary cessation, it must demonstrate that its change is entrenched or permanent.
Court did not abuse its discretion in admitting memo postdating the relevant decision, since the memo summarizes the same information that the agency relied upon, rather than being a post hoc justification.
Under Supreme Court precedent, EPA jurisdiction over wetlands requires a significant nexus with navigable waters, rather than the freer standard set out by the plurality in that case, since the first standard is a logical subset of the plurality's rule.
Agency's conculsion that painiffs' wetlands have a sufficient nexus to navigable waters wasn't arbitrary, and was supported by the record.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-35469.pdf
Ninth Circuit: United States of America v. Steven Ray Prigan
As it criminalizes violence or the threat of violence against property as well as persons, Hobbs Act Robbery is categorically not a crime of violence under the sentencing guideleines. Similarly, the generic crime of Robbery enumerated elsewhere in the guidelines is narrower than Hobbs Act Robbery, since federal Robbery requires imminent danger to the person; the generic crime of Extortion is also narrower, as caselaw requires threats to be directed against the person.
Not harmless error, as the court didn't explain a basis for variance that would account for the resulting variance.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/18-30238.pdf
Eighth Circuit: Louis Gareis v. 3M Company
Plaintiff suffered no prejudice from the exclusion of evidence of knowledge of risks and effective alternatives on the part of the device manufacturer, since none of the evidence excluded addressed causation, an element of the claim.
If the admission of expert testimony on operating room airflow was error, it was harmless, given the many other avenues established for the bacteria to have entered the wound.
As causation is an element of a lack of warning claim under state law, if the court erred in holding that the deft had actual or constructive knowledge, the error was harmless, since causation was never established.
Seventh Circuit: Robert Bless v. Cook County Sheriff's Office
Court did not abuse discretion in quashing deposition of city sherriff, since the sherriff was not personally involved in the employment matters at issue, and the plaintiff did not describe the admissible evidence that might result from the deposition beyond the existence of a conversation at a political event.
Employment action was too attenuated from the employer's gaining knowledge of political activity to support a claim for political retaliation, and the nondiscriminatory bases offered by the employer for the action were insufficiently rebutted.. Claim of racial dicrimination doesn;t present a genine issue of material fact for trial, since there were decisionmakers outside of the protected class and the nondiscriminatory reasons for the action were insufficiently rebutted.
Seventh Circuit: Brian Hope v. Commissioner
Unequal treatment of a state's residents under the 14th Amendment right to domestic travel only occurs when a law expressly differentiates between residents based on their length or timing of residency.
Absent a violation of the right to travel, the equal protection claim should be assessed under rational basis review.
State's offender registration law is insufficiently punitive to base an ex post facto claim upon it; the stated purpose of the legislature was civil and regulatory. In practice, it's sufficiently different from parole, as the status can't be revoked; its restraints and disabilities aren't sufficiently severe to make the law punitive; residency restrictions do not serve punitive aims, and there is sufficient connection to nonpunitive purposes; and the law is not excessive in relation to its aims.
CONCURRENCE:
The registration law is permissibly retroactive; it imposes obligations beyond those prescribed at the time of the offense.
CONCURRENCE/DISSENT:
Requiring registration of residents who are subject to registration in their prior state of residence puts those residents on unequal terms with residents of their present state who are shielded from registration requirments by a decision of the state's supreme court holding the registration requirment to be sufficiently punitive to trigger ex post facto scrutiny.
A resident of the instant state who then travelled to another state where they were subject to registration requirements would then have to register in the instant state upon their return, burdening the travel right.
Seventh Circuit: Stanley Boim v. American Muslims for Palestine
A federal court has sufficient independent jurisdiction over a claim to enforce an earlier federal judgment against a putative alter ego of the original deft when jurisdiction over the putative alter ego would arise under the statute that conferred the jurisdiction over the original action. The question of whether the second organization is in fact an alter ego of the first is a merits question, not a jurisdictional threshold.
The ERISA framework is not compulsory when assessing alter ego under the antiterrorism laws.
Seventh Circuit: Ronald Schmucker v. Johnson Controls, Incorporated
Under the statute, a citizen suit claiming that an agency is not following regulations can't look at documents not having legal force to supply missing terms in the regulations and standards.
Court appropriately held that, given existing remediation, there was insufficient imminent and substantial endangerment to the town for the citizen suit to prevail under the statute.
Sixth Circuit: Carl Ward v. Nat'l Patient Account Servs
Plaintiff does not have standing under the statute to challenge the lack of sufficient identification of the debt collector, which resulted in the sending of correspondence to the wrong company, since the error does not bear a close relationship to traditional harms, and confusion is insufficient concrete injury.
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0182p-06.pdf
Sixth Circuit: Sharon Potter v. Comm'r of Soc. Sec.
Denial of class certification that doesn't reach merits but instead is a case managment order associated with a stay pendng a related appeal doesn't end the tolling of statutes of limitation for absent class members, as their reliance on the class remedy and the representatives is still objectively reasonable.
As the stay put the parties on notice of pending claims and continued reliance by absent class members was reasonable, the continued tolling serves the purpose of the statute of limitaitons and the economy of litigation.
Circuit split with Fourth flagged.
Once an uncertified class action is dismissed, tolling ceases.
Claim for equitable tolling forfeited for not being distinguished from tolling of right claim before the District Court.
Fifth Circuit: Lindsey v. Bio-Medical Applications
As employer never made working on leave a condition of employment or threatened employee with adverse consequences, lack of assignment of the employees duties to another in the interim did not interfere with the exercise of the statutorily guaranteed leave.
The distinction between actual due dates and horatory due dates presents a genuine issue for trial on the claim of pretextual basis for retaliatory action.
State law whistleblower claim would require an actual violation of state law, not merely discusion of an illegal practice.
https://www.ca5.uscourts.gov/opinions/pub/20/20-30289-CV0.pdf
Third Circuit: William Drummond v. Robinson Township
The Township's proposed regulations on the firearms practice ground trigger stricter scrutiny, since although restricting the areas for firearm practice dates to the Founding, the town's specific regulations on firearm type and nonprofit ownership of the club are novel, and merit closer scrutiny.
As the regulations steer clear of the core of the Amendment, intermediate scrutiny applies. The limitation on firearm type is only conjectural in its claim to reduce the intensity of practice, and the nonprofit ownership rule is similarly conjectural in its claim to reduce commercial intensity. As the Township bears the burden to establish the reasonableness of the remedy, the challenge to the regulations states a claim
First Circuit: US v. Patch
At 11: "The sockdolager here..."
Deft can't be denied the safe harbor of the sentencing reduction for lack of participation by mere evidence of accompanying others on supply trips; mere presence at prohibited transactions is insufficient.
First Circuit: US v. Carrasquillo-Sanchez
Contemporaneous objection to the length of the sentence imposed preserves only a claim of substantive error, not one of procedural error.
Plain procedural error in sentencing for the court to base an upward variance upon the conditions in the city of the offense without associating the particular circumstances of the deft within this context.
First Circuit: US v. Garcia-Perez
Court adequately recited mitigations, but did not sufficiently explain its upward variance. As the relevant conduct is explicitly included in the guidelines calculation, court needed to specifically distinguish the deft's situation.
Court did not abuse its discretion by imposing a substantively unreasonable sentence -- the deft has the burden to establish that the comparators who received disparate sentences were sufficiently similar.
Almost made it back to DC
Three in the DC Circuit from Friday, but too much multitasking today. Perhaps tomorrow. Cheers.
CB
Eleventh Circuit: Ridgewood Health Care Center, Inc., et al v. National Labor Relations Board, et al
Board's decision that the rehiring interviews by the allegedly successor organization were unduly coercive was insufficiently reasoned, as the legal standard wasn't identified and the relevant factors weren't reviewed. Where both the Board and the ALJ issue unsupported decisions, but the facts are apparent in the record, the issues can be addressed on appellate review. As the questions were answered truthfully, there was no systematic attempt to inquire as to union membership, and no interviewee suggested coercion, the second employer did not unduly coerce during rehiring.
Second employer's statement that they might have to close the facility if it were to become unionized wasn't in itself a threat, and it was insufficient to demonstrate animus relevant to the refussal to hire members of the union. (The statement was also too attenuated in time and after the fact.)
Anumus of a lower-level supervisor can't be attributed to the decisionmakers who declined to hire the union members.
Absent the discriminatory hiring claim, the second business wan't a successor organization, as a moajority of its employees were not former employees of the first business.
https://media.ca11.uscourts.gov/opinions/pub/files/201911615.pdf
Tenth Circuit: United States v. Rollins
Motion to amend the judgment mailed prior to the formal entry of judgment, and that challenged the judgment under rule 59(e) tolled the time for appeal, making the appeal filing here timely.
In considering whether a pleading states a claim of conspiracy under S1983, only the content of the amended complaint should be considered.
Notice sent to the town's mayor wasn't sufficient according to the terms of the state notice act; actual notice is insufficient under the act.
Requesting default judgment from the appellate court is insufficient to challenge a denial of default judgment below.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110560714.pdf
Tenth Circuit: Hooks v. Yandell, et al.
Sufficient evidence for agency's determination that expert affidavit describing changed country conditions did not adequately set out a basis for the threat to a child of an ethically and religiously diverse family -- the affidavit seperately described the threat faced by each group, but not the threat to the child of such a family.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110560738.pdf
Tenth Circuit: Jackson v. Warden, USP-Leavenworth
Statutory Habeas is unavailable where an intial challenge to the conviction was made in the court of conviction according to statute, but there was a subsequent change in the law regarding the predicate offense that cannot be relitigated under AEDPA, since it would be second or successive. The inital collateral challenge was adequate and effective.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110561337.pdf
Ninth Circuit: Willian Rauda v. David Jennings
Statute proibits Article III challenges to the removal of a foreign citizen even where that removal happens in advance of statutorily guaranteed motion to reopen the case, since that remedy can be pursued abroad; this is true even where there is a showing of risk to the petitioner from removal.
Habeas jurisdiciton is similarly foreclosed, as petitioner is not seeking relief from executive detention, and as an alien in the process of being removed, has no proceedural rights other than those guaranteed by statute.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/21-16062.pdf
Ninth Circuit: USA V. Steven Bachmeier
Finder of fact could rationally have decided that a request for a case to be assigned to another judge, and that contained a threat against that first judge was in fact addressed to the first judge even though the note was addressed to the courthouse.
Although the jury instruction didn't adequately convey the element of subjective intent to threaten, the error was harmless, since the deft's only argument against subjective intent was that the note had not been addressed to the judge, and the note, read plainly, was a true threat.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-30019.pdf
Ninth Circuit: Dennis Munden v. Stewart Title Guaranty Co.
Since the roadmaps were created under a state statute and designed, at least in part, to give owners in property notice of extant interests in their property, the road map is a public record for the purposes of the title insurance contract, and the insurers had a duty to defend the landowner against the otherwise unrecorded state road easement and right of way.
Policy exclusion for claims arising from public interests in roads applies to bar the claim, since the state is asserting such an interest, and the policy owner is opposing it.
One deft to pay the plaintiff's costs, and the plaintiff to pay the prevailing deft's costs.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-35336.pdf
Eighth Circuit: United States v. Ivan Espinoza
As those possessing abuse images tend to hoard them, the uploading of an image was sufficient probable cause for a search of the deft's electronic devices seven months later.
Under-guidelines sentence not substantively unreasonable.
Eighth Circuit: United States v. Herbert Green
As the officer removed the package containing contraband from where the delivery company had placed it in their facility, but in a manner consistent with the procedure agreed with the delivery company, the officer was working at the direction of the company in carrying it to the dog sniffing area, and the package was not seized until the dog's reaction had established reasonable suspicion.
The dog's reaction, combined with the suspicious appearance of the box, and the deft's demonstrated familiarity with the object provided sufficient probable cause for the arrest.
Scope of the search justified as a protective sweep exceeded Fourth Amendment bounds, since the sweep is permitted in order to determine whether there are othre people in the house, and the officers looked in cabinets and trash cans and opened a shoebox.
Remand to determine whether a waarant would have been sought anyway and the evidence admitted by means of an independent source
Eight Circuit: Craig Shipp v. Kevin Murphy
While state law generally governs witness competency in a civil case, federal law controls on questions relating to the qualification of expert witnesses; harmless, as the exclusion was correct under federal law and the testimony cumulative.
A finding of good cause for the substitution of an expert witness after discovery does not compel the admission of substantively different testimony form the second expert.
Referring state prison imate to medical services for special shoes was not deliberate indifference on the part of the warden.
Doctor's lack of recognition of the need for orthopedic shoes, an omission that eventually resulted in an amputaition, did not rise the level criminal recklessness needed to present an issue of deliberate indifference. Other employees similarly would not have had the requisite disregard.
CONCURRENCE/DISSENT
Nurse's testimony on the negligence of the doctor was admissible expert testimony, given her credentials and the need for a flexible, fact-specific inquiry. Given the warden's habitual follow-up inquiry with medical services, the warden had sufficient knowledge to present a genuine issue of deliberate indifference. Physician's and administrator's conduct presented a genuine issue for trial.
Eighth Circuit: J.B. Hunt Transport, Inc. v. BNSF Railway Company
Arbitration party's pre-confirmation suit sought declatory judgment as to a specific finding and specific performance as to a specific term, rather than enforcement of the award generally, and therefore wasn't untimely.
Suit wasn't moot due to the expected confirmation of the award, since it would give the plaintiff something beyond the confirmation.
The request for specific performance, however, would constitute a modification of the award contrary to the arbitration statute.
Award's definition of certain terms was exclusive, given the clear decision and the lack of language indicating otherwise in the award.
Where the terms of the Award are ambiguous as to which rates the competitor must disclose to its JSA partner, a fair resolution looks to those rates that are most relevant to the substance of the JSA.
Eighth Circuit: Tom Magee v. Benjamin Harris
As the mail carrier's errand for a friend arose from a personal motive and wasn't fairly and naturally incident to his duties, the state law presumption of acting within the scope of employment when driving a vehicle owned by the employer was sufficiently rebutted.
Although there was no written policy forbidding it, the policies incorporate managerial directives, and the manager's testimony that such a break was forbidden sufficiently supports the court's determination that the detour was unauthorized.
Driving to the store for a friend's dog food was of a sufficiently marked and decided character to take the mail carrier outside the scope of their employment. Returning to the break place did not return the carrier to the scope of employment, as the employee must return to the point of deviation or to a place where he should be located inthe performance of his duties.
Scope of employment is a threshold question under the act, and does not require jury determination as part of the merits.
https://ecf.ca8.uscourts.gov/opndir/21/08/202590P.pdf
Eight Circuit: Alvin Jackson v. Dexter Payne
When assessing petitioner's mental capability, lack of detail on childhood tests is insufficient to establish that the childhood tests should not be relied upo, with the appropriate fixed margin of error.
Where the low end of the IQ scores is within the defined range, consideration of the second factor is the test is compulsory; a borderline test number can't be offset by other factors.
Court did not clearly err in considering childhood data, as petitioner has been incarcerated for most of his adult life. Adaptive strengths, particularly within the controlled environent of prison, are not necessarily relevant to the consideration of adaptive deficits.
Supreme Court precedeent prohibits capital punishment where the intellectual disability exists at time of execution.
DISSENT
Adaptive strengths developed in prison are relevant to the inquiry. Data insufficient to carry the petitioner's burden of proving disability; court shifted burden sub silentio. State statute also has a presumption against petitioner, requiring him to prove unconstitutionality.
Eight Circuit: Awil Mohamed v. Merrick B. Garland
Where there is a thresold event necessary for the violence that petitioner claims would result from deportation, the court should consider the sequence of events, rather than the risk factors in the aggregate.
Board did not impermissably find facts when pointing out that, given the situation in the country, the probablility of the adverse events occuring was low.
For purposes of the statute, a government unable but not unwilling to stop the torture does not acquiesce in it.
DISSENT
Considering the risk factors in the aggregate is consistent with governing law. Board found facts, and they don't necessarily establish that it isn't more likely than not that petitioner will be tortured.
Seventh Circuit: USA v. Jesus Beltran-Leon
For purposes of the sentencing factor, torture by arresting third-party state isn't sufficient basis to justify lack of cooperation with US investigations.
Proceedural explanation of sentence was sufficient; there is no need to march through all the different staturory factors and arguments.
Explanation of sentence was sufficiently comprehensive to dispel the suggestion that discussions of ethnicties shared with the judge impermissibly factored into sentencing.
Lack of contemporaneous objection forfeited claim that judge based sentence in part on a news report of country conditions that was outside the record and not made available to the parties.
Court's invitation to the deft to testify at sentencing as to the contents of an affidavit did not create a presumption of adverse inference when deft refused to take stand.
No plain error in judge's non-recusal after discussion of shared ethnicity.
Seventh Circuit: USA v. Elijah Vines
Expert testimony of federal investigator on the recalcitrance of victims wasn't an abuse of discretion or beyond the rule, since it was from experience and did not directly address the credibility of any witness.
Identification of deft from Facebook photo after victim provided name and the information that deft had a Facebook account was not an unduly suggestive photo identificaiotn, given the lack of police arrangement.
Phone voluntarily provided by a third party without access to its passcode could lawfully be searched under a subsequent warrant, since the third party held a valid possessory interest in the phone seperate from the privay interest in the data inside the phone. Analogy to a locked safe discussed in circuit precedent.
No clear error in denial of Franks hearing due to claimed misstatements supporting the warrant affidavit, as warrant had independent basis of probable cause apart from that testimony.
Second Circuit: Sacerdote v. New York University
Fiduciary's purchase of retail class shares rather than institutional class shares in 63 of 103 funds states an ERISA claim under duty of prudence. The subsequent finding of prudent revenue sharing doesn't make the error harmless. Deft has burden to establish that the losses didn't flow from the imprudent acts.
Refusal of discretionary leave to amend under Rule 16 was an abuse of discretion, since the scheduling order only listed the date beyond which amendments of right would not be timely. Denial of leave to amend prejudiced post-trial motions.
Lack of timely response to motion to strike jury trial demand was sufficient waiver.
Trial court's use of written direct testimony is not per se an abuse of discretion.
No clear error in rejeciton of claim that the Plan should have consolidated its record-keeping, given the testimony on IT difficulties.
No clear error in discrediting expert testimony on fund benchmarking.
Judge was not disqualified from presiding by the implicaitons of the fact that she left the bench six months later to re-join a law firm whose chairman, her mentor, is on the University's Board of Trustees.
DISSENT IN PART:
Since retail class share enable revenue sharing to offset recordkeeping costs, no error in dismissal of claim of breach of duty of prudence in opting for retail rather than institutional class shares; the fiduciary followed a sufficiently deliberative process. Scheduling order setting date beyond which pleadings can;t be amended without leave is sufficient to indicate that in the normal course, no pleadings may be amended.
Second Circuit: United States v. Weaver
Fourth Amendment, 161 pp. en banc.
Directive to stand in a place where a frisk would be possible doesn't commence a search, as there was no invasion of a private and constitutionally protected area due to physical trespass or a reasonable expectation of privacy.
Although the seizure in the the Fourth Amendment commenced when the deft reasonably believed that he was not free to leave, the subjective beliefs of the deft doesn't enter into the question of when a search commences.
Similarly, a police officer's subjective intentions do not enter into the determination of when a search has commenced. There might have been many reasons for the police officer to tell the deft to stand in a certain place.
Deft's hitching of pants, combined with a statement that there was nothing in them that might be weighting them down, was sufficiently furtive; officer is not required to dispel the possibility that the weight was non-threatening contraband. Deft's conduct, coupled with the behaviour of others in the car, deft's earlier actions, and the location of the stop were sufficient articulable bases for the Terry stop and pat-down.
CONCURRENCE IN THE JUDGMENT, joined by a PARTIAL CONCURRENCE:
Search did not commence until actual pat-down, rather than at the command to stand with feet widely apart. Circuit precedent requiring a hypothetical test under th same facts, but changing the race of the deft remains good law. Unless the characterization of "high crime area" is supported by recent and relevant hard data describing a circumscribed area, the characterization usually defers inappropriately to the judgment of the officer. When's categorical removal of subjective intent from the suppression calculus in favor of a possible subsequent S1983 remedy risks allowing stops with clear evidence of racial discrimination. Legislatures should directly regulate police conduct, rather than deferring to courts' Fourth Amendment scrutiny.
DISSENT
(Refers to police officers by first name throughout.)
The hitching of the pants was with one hand, and not in a distinctive manner; the officer must have the reasonable suspicion that the objct is dangerous. Defts repeated compliance with positioning commands and the constant visibility of defts habnds meant that there was insufficient reasonable suspicion from the time after exiting the car, and that earlier suspicions hould have dissipated. Supreme Court has never held that officers have no obligation to consider alternative explanations for potentially suspicios behaviour. Reasonable suspicion is an individualized inquiry, placing th behaviour of the other passengers outside the calculus. Looking at an unmarked car does not constitute counter-surveillance of police activity. An officer's direction to assume a "spread eagle position" commences a search and requires a reasonable suspicion that the peson being searched is armed and dangerous; it is an order that allows the touching to take place. Subjective belief of the person being searched as to the beginning of that search is relevant to the reasonable expectation of privacy that defines the search. Whren risks pretextual and discriminatory stops.
DISSENT
Current Fourth Amendment law encourages deference to police, and then arbitrary distinctions between the deft and other members of society to justify the conclusions of the police. Exclusionary rule has become a disaster, allows incremental erosion of the right throgh cognitive bias. Whren encourages pretextual stops and leads to stereotyping. Command to stand "spread eagled" exceeded permissible bounds of the traffic stop and direction to exit car; it was an additional seizure, and the additional seizure required an additional showing of reasonable suspicion of criminal activity afoot and that the person being seized was armed and dangerous. Not considering this is contrary to Supreme Court and circuit precedent. Whren doesn't foreclose considering the offier's discriminatory intent in making the stop where relevant to the officer's characterizations of the justifications for the stop. Would remand to consider this.
DISSENT
Stop was pretextual, search was unreasonable. Officers repeately noted defts race in contemporaneous accounts.
Second Circuit: Div. 1181 Amalgamated Transit Union-New York Emps. Pension Fund v. New York Dept of Education
Municipality that contracts with outside corporations isn't liable under ERISA for fund contributions, as contributions aren't required in the contracts or in the Fund's governing documents. Munciplaity's requirement that contractors hire according to municipality's seniority lists and follow municipality's wage and labor rules constituted neither an ERISA pension agreement or CBA, nor is the munipality a fiduciary or liable due to having participated in prohibited transactions.
First Circuit: Sundaram v. Briry, LLC
Disbursements by the trustee of assets of the estate prior to the confirmation of the plan and prior to the dismissal of the bankruptcy case cannot be revisited in a subsequent Article III challenge. Since the claim attempts to revisit the organization of the estate, the claim is now moot, and statutes and common law rules allowing challenges to erroneous disbursements require that the funds be in the possession of the trustee at the time that the bankruptcy case is dismissed.
http://media.ca1.uscourts.gov/pdf.opinions/20-9008P-01A.pdf
First Circuit: US v. Martinez
For safety-valve relief in sentencing after a conviction for conspiracy, the relevant conduct that must have been disclosed to authorities prior to sentencing includes all conduct in furtherance of the conspiracy, including that of all conspirators, charged and uncharged.
Threat of retribution insufficient to justify concealment of relevant knowledge of the crime.
http://media.ca1.uscourts.gov/pdf.opinions/19-1667P-01A.pdf
Hiatus now
Returning to the academic and job search dojo for a bit. Good to get a couple weeks (234 decisions) of batting practice in. Still a going concern, and my goal is to accomplish the summaries in one or two hours every weekday morning.
But now, there's a large stack of books on the desk. Cheers.
CB
Federal Circuit: In Re The Board of Trustees
Claim is ineligible for patent, because it recites abstract mathematical concepts without practical technological improvements beyond increasing statistical accuracy, and, taken as a whole, is embodied as well-known, routine and conventional actions of performing an algorithm on a computer.
(Perhaps. We don't know many things, but we especially don't know Patents.)
Federal Circuit: Vollono v. McDonough
As the statutory bar to receiving duplicate funding doesn't look to current eligibility status, a veteran who received funding through one program and therefore chose to forgo another funding source can't later seek to receive the second funding after the eligibility for the first was determined to be erroneous, though non-recoupable.
Eleventh Circuit: Travis D. Turner v. Secretary, Department of Corrections, et al.
Habeas petitioner filing after the statutory cutoff on a form filing where the untimeliness was facially apparent had an opportunity to challenge the propriety of the court's taking judicial notice of the dates on the state's docket for their convictions by having leave to reopen at the district court level to argue error, equitable tolling, or actual innocence. Court did not abuse its discretion in initially dismissing the petition as untimely without a reply brief or magistrate's review.
Travis D. Turner v. Secretary, Department of Corrections, et al.
Ninth Circuit: East Bay Sanctuary Covenant v. Joseph Biden
Amended opinion, Concurrences and Dissents from Denial of En Banc.
CONCURRING WITH DENIAL OF EN BANC:
Sufficient injury to the organization for standing.
Substance and revision of opinion congruent with usual en banc process.
DISSENT FROM DENIAL OF EN BANC:
Court is not a Platonic Guardian of the Constitution and laws.
The organizations did not sustain sufficient injury for standing, since the statute doesn't make it more difficult to provide legal services to immigrants. Redirection of resources and diminished client pool are insufficient.
Generally, the statute holds that anyone can apply for asylum, but gives the Executive discretion as to whether to grant it. Panel conflates the right to apply with the right to receive.
DISSENT FROM DENIAL OF EN BANC:
Published motions panel opinions are precedential, and make law of the case.
Ninth Circuit: George Young, Jr. v. State of Hawaii
(En Banc, 215 pp.)
Pro se plaintiff's claim that never explicitly makes the as-applied challenge is correctly read as a facial challenge, since the briefing and argument was conducted with the assistance of counsel.
(Extensive list of English statutes and edicts made against the carrying of (fire)arms from the 14c. onward.)
Colonial history suggests early American acquiescence to firearms limitations outlined in the Statute of Northampton.
Early state enactments generally held that firearms small enough to be concealed could be kept from the public square.
State courts & treatises inconclusive, but generally recognize the government's power to regulate.
The government may regulate, and even prohibit, in public places the open carrying of small arms or arms capable of being concealed. This does not impede the protection of homes or businesses. It is peculiarly the duty of the state to defend the public square. The states assumed primary responsibility for maintaining the king's peace.
Exceptions to regulations were made for persons, places. Surety operated not as a minor penalty but as a strong discincentive to carry arms.
That handguns may be used for defense does not change their threat to the king's peace. The mere presence of such weapons creates terror in the public space. Hawaii's statute makes provision for public officers, hunters and recreational users, and those with a legitimate cause for fear.
Single-officer approval regulatory scheme is not subject to challenge by prior restraint, as the regulations are not presumptively invalid.
Procedural due process claim is speculative, since no licence has yet been denied.
DISSENT:
Unprecedented and extreme holding. First circuit to hold that carrying a weapon in public falls outside of the protections of the Amendment.
Plain text of the Amendment requires right to carry arms. 19 c. State caselaw and federal legislation recognized the right to carry arms.
Statute of Northampton allowed carrying of common arms, not for the purpose of terror. English law was more restrictive of the right to carry arms than was the American. Surety was only actually invoked in extreme cases, implicitly legitimating the norm of peaceably carrying weapons.
"Weapons capable of being concealed" is a novel standard. Heller explicitly contemplates self-defense as a legitimate reason. The responsibility for keeping the peace lies with the people, not with the states.
The right openly to carry arms is within the core of the Amendment. As the regulation destroys the right, it is necessarily unconstitutional.
Pro se complaint should be construed as an as-applied challenge to the enforcement against the plaintiff.
DISSENT:
Should be either construed as as-applied, or allowed to amend. County regulations limiting licenses to working security guards are facially unconstitutional.
Ninth Circuit: USA v. Jane Boyd
Statute that allows for penalties for any violation of a certain section does not permit multiple penalties for multiple aspects of the violation of a single obligation, but rather establishes that any of the violations specified in the statute and associated regulations are subject to the penalty.
Materially similar provision for willful violations of the same obligation that allows for multiple penalties cuts against the idea that multiple penalties should be allowed in the section of the statute that doesn't explicitly mention them.
Tax statutes should be strictly constructed where they impose an obligation.
DISSENT:
The reporting requirement is a procedural element, but the substance of the statute is that each of the foreign bank accounts should be reported.
The use of "violation" as defined by its context in the similar provision establishes that the term should have that definition throughout the statute.
Majority's reading is not strict, but strained.
Ninth Circuit: Wilber Acevedo Granado v. Merrick Garland
In ruling the proposed social group insufficiently particular, the IJ erred in not considering the clinical definition of people with intellectual disabilities; the common law definition does not necessarily control.
Although the proposed group of people with intellectual disabilities might commonly be mixed with people with mental illness generally, the relevant question for social distinctiveness is whether the difference can be discerned sufficiently for that subset to face increased persecution. Discrimination based on the manifest symptoms is equivalent to discrimination against the group.
Proposed second social group was insufficiently responded to by the agency, and its rejection was insufficiently reasoned by the IJ.
Petitioner's claim of risk of torture insufficient under the Convention, since the attacks by police are cases of mistaken identity, and maltreatment by the medical workers because of overcrowding and lack of knowledge.
Eighth Circuit: United States v. Stacy Lyman
As the petitioner was sufficiently represented by counsel during the earlier criminal proceedings that resulted in the predicate convictions, claiming that the charging documents allege a mental state different from that of the offense charged is an impermissible collateral attack from a second forum.
Court did not plainly err in holding that no mental state was required for the predicate serious drug offenses under the statute.
Seventh Circuit: Tyler Kirk v. Clark Equipment Company
Concise Daubert analysis is distinct from conclusory Daubert analysis, and therefore is analyzed for abuse of discretion.
Merely establishing the qualifications of the expert is insufficient; the principles and methods used must be analyzed as well. Expert testimony involving theories that had not been tested on that type of machine were within the discretion of the court to exclude, even given subsequent remedial measures by deft. Expert testimony as to causation legitimately excluded, since the expert was speculating as to the amount of weight that caused the machine to unbalance; there was no requirement to let the question of causation go to the finder of fact, since the court has a gatekeeper function with expert testimony.
Absent expert testimony, the strict liability defective design claim didn't present a genuine issue of material fact for trial, since consumer expectations are insufficient objective proof when it comes to industrial machines.
Seventh Circuit: Kimberly Nelson v. City of Chicago
Loss of employment is insufficient harm to establish a claim under substantive due process, as employment is not a fundamental right.
Negligence in not listening to emergency radio dispatches doesn't state a substantive due process claim for a police officer later injured due to lack of assistance. The state-created danger exception to the private danger exclusion in due process analysis can't be invoked here, since it only applies when the state disables people from protecting themselves.
Disregarding a known risk to a public employee or altering work records after the fact are insufficiently conscience-shocking to state a substantive due process claim, and the emotional injury from the latter is insufficient to support a S1983 claim.
Plaintiff did not identify procedural shortcomings in protections sufficient to state a claim under procedural due process.
Monell claim against the municipality wasn't supported by showing of pattern or practice beyond individual acts subject to respondeat superior, which is not a basis for liability in S1983.
Seventh Circuit: USA v. Vickie Sanders
Court did not abuse its discretion in denying compassionate release petitioner a reply brief under Due Process after government brief with new medical evidence, since the motion was denied on other grounds.
Denial order did not need to recite basis for denial as to each medical susceptibility, or holding as to each sentencing and factual history element.
Seventh Circuit: Next Technologies, Inc. v. Beyond the Office Door LLC
Court might have exercised a bit more Constitutional avoidance. Few Lanham Act disparagement claims would succeed if the manufacturers were considered limited purpose public figures.
Although the state's law doesn't distinguish personal libel from trade libel, since there are few examples of the latter in the caselaw, it is reasonable to follow the Restatement rule requiring injurious falsehood -- false statements of specific unfavorable facts -- for trade libel, a standard which requires reckless disregard of the truth.
Seventh Circuit: USA v. Latrell Coe
Reference in sentencing colloquy to an ethnicity shared with the defendant was sufficiently counterbalanced by race-neutral reasoning on the subject, establishing that the court did not rely upon impermissible factors.
Incomplete brain development in the late teens and early twenties is a generic, stock argument, and not a valid mitigating factor.
Sixth Circuit: Brian Lyngaas v. Curaden AG
Because evidence establishes a business plan for eventual profitability undercapitalization is not per se proof of being a mere instrumentality of another corporation.
As there is no culpable conduct establishing that the foreign corporation used their control over the domestic corporation to effect a fraud or wrong on the complainant, there is insufficient basis to piece the corporate veil.
Jurisdiction is proper in the district under the FRCP, since the cause of action arises under federal law, the foreign entity is not within the jurisdiction of any other state, and the exercise of jurisdiction is consistent with the US constitution and laws.
Under Fifth Amendment due process, foreign company sufficiently purposefully availed itself of the American market generally by launching the domestic company and retaining a measure of control over it. The marketing faxes at issue sufficiently relate to the purpose of these minimum contacts, even though the foreign company might not be culpable for the sending of the faxes. Asserting first US jurisdiction over the foreign company is reasonable, since there is a federal interest in the enforcement of the laws, and the plaintiff will not be able to find financial redress from the domestic corporation.
The regulation making culpable under the statute the person whose goods and services are advertised only applies to persons who have some level of knowledge that an unsolicited fax has been sent.
Consistent with agency findings, fax-to-computer transmissions are within the Act, as the receiving machine has the capacity of transcribing the image to paper.
Given proffer of eventual admissibility, the class was correctly certified using unauthenticated telephone logs, as nonexpert evidence may be sufficiently probative at the early stages of the litigation.
As the logs were generated by a machine, they were not hearsay -- hearsay requires the assertion of a person. Court correctly excluded expert testimony.
List of affected phone numbers reasonably necessitated the claims administration procedure.
In a federal class action, the court need not have personal jurisdiction over the defendant as to each plaintiff. The question of jurisdiction looks to the relationship between the defendant, the forum, and the litigation -- it does not depend on unnamed class members.
CONCURRENCE/ DISSENT:
As state courts couldn't resolve the clams of out of state class members, neither can federal courts resolve the claims of those outside its jurisdiction.
14A Determines the due process limits on federal jurisdiction under the 5A in federal court.
The statute doesn't apply to faxes received on computers, since, on its own, a computer can't receive messages from a phone line or print the fax on paper; additionally, Congress listed computers as senders, but not receivers.
Fifth Circuit: Nguhlefeh Njilefac v. Garland
Board did not abuse its discretion in discounting the value of affidavits with an attestation that didn't swear to the veracity of the affidavit, although the form used would be acceptable in an Article III court in the circuit.
Board's presumption of delivery is not so irrational as to become arbitrary, especially given the factual context, including lack of return to sender and previous successful deliveries to the address.
End of Day
Four cases out of the Ninth saved for tomorrow.
Might press pause on this, as it's a bit of a time-drain, and there's a large stack of books on the desk. Basically just taking a few weeks of batting practice. Stay tuned. Or not, as the case may be.
CB
Eighth Circuit: Meierhenry Sargent LLP v. Bradley Williams
Appellate injunction limiting fee arbitrability resulting in an order form the district court on remand that further limited the arbitability to issues that had not been before the appellate court was not impermissibly modified by the order on remand. The court was free to expand the scope of its initial order.
Appellate court has no jurisdiction over a stay no longer in effect, or matters not subject to interlocutory review.
CONCURRENCE:
Arbitration statute does not empower courts to remove areas from the scope of the arbitration by means of injunction, but the parties didn't raise this defense.
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