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.
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
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.)
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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
A controlled buy of drugs does not become less credible in a search warrant affidavit when the agent transacts with an unrecorded intermediary, since the intermediary would have no motive to mislead the agent. Sufficient probable cause for warrant with multiple intermediary/agent controlled buys and reports of illegal weapons.
Since the ambiguity in the controlled buys was facially evident in the affidavit, no error in the denial of a Franks hearing.
Sufficient evidence for possession of contraband, given possession of contraband. Drug quantity calculation appropriately added the quantities found during multiple searches.
Since the provision in the Code authorizing appeal for discretionary release in "any case" doesn't apply to all cases, since it was added to the Code by the same law that provided for its own effective date and non-retroactivity.
Subsequent law reiterating the effective date and non-retroactivity of portions of the earlier law did not, by implication, amend the status of other parts of the earlier law.
Even with the assumption that the company's attorney was their own client when drafting the agreements, since the complaint doesn't state the necessary proximate cause and damages, the malpractice allegation doesn't state a claim.
Arbitrator's ruling on the inherent illegality of the attorney's conduct applies to the consideration of proximate cause, since, under the statute, if the conduct isn't inherently illegal, the plaintiff must establish that without the advice, the risk would not have been taken.
Declining the invitation to object to a sentence element during colloquy forfeits the challenge, resulting in plain error review; as the omission was accidental, the objection wasn't waived.
Plain error for the court to sentence to a fixed term of supervised release while stating that they believed it to be the minimum, as the duration of supervised release is a different consideration than any given condition of the release.
Claims were timely filed, as the statute of limitations did not start to run until, taking all favorable inferences, the claimant had actual knowledge of the claim or with reasonable diligence should have discovered the claim.
Allegation that plan documents did not make the effects of annuity disbursement, changes in interest rates, and possible negative effects of switching plans sufficiently clear to the average plan participant states a claim.
Despite being insufficient notice under the statute, Plan documents were not in bad faith, since they attempted to explain, compare and caution, and were multi-modal in nature, making a sufficient good-faith effort to convey the information.
Denial of compassionate release based on a single sentencing factor wasn't an abuse of discretion, since the arguments were considered, and there was a reasoned basis for the decisionmaking.
The sentence disparities referenced in the rules refer to national disparities, not disparities between sentences handed down for the same occurrences.
The investigation and fee award from the federal whistleblower retaliation proceeding invoked by the complainant are prohibited by sovereign immunity. The statute associating the receipt of federal funds with the liability is invoked by the complaint, not by the US, and it doesn't specifically mention the waiver of sovereign immunity; the explicit waiver must be in the statute, not the implementing regulation, so not to infringe the spending power of Congress.
Appellate holding that a party is a prevailing party under a statute with a compulsory fee award becomes law of the case; the district court can't then deny an award completely for lack of sufficient segregation, but must rather determine, based on the evidence at hand, the appropriate level of fees attributable to the relevant action.
Plain error for the district court to apply the law of the forum, where the choice of law provision was clear, aside from a single specific instance referencing mediation within the forum -- this instance supplies only a procedural law. Since the chosen foreign law requires all fee awards to be authorized by statute or contract, and the foreign law has no parallel fee shifting statute, error for the court to have shifted fees under the statute.
Absent a damages award or equitable or injunctive relief, prevailing party status is unavailable for purposes of a fee award, even if the court explicitly recognized the breach of the relevant obligaiton.
As it was established by the state, and has many powers that are typically characterized as government powers, such as eminent domain and bond sales, the hospital trust is within the local government antitrust immunity created by the statute.
Since, although the right was established by an earlier statute, the plaintiff's claim is made possible by a change in the defendant's obligations that was enacted by a subsequent statute; the relevant statute of limitations is therefore the statutory limit enacted after the second law, and before the second.
The appeal of the denial of the preliminary injunction wasn't severed by the transfer of the case to another court, rather the denial was merged by operation of law into the final judgment in the second forum, making the appeal in the first forum moot.
Investigation of accountancy firm did not create a situation of undue contractual influence on the taxpayers, as some had multiple advisors, and some were sophisticated business professionals; the accountancy firm notified the taxpayers of the investigation in a manner that allowed for outside advice on at least some of the relevant transactions.
For purposes of determining whether the partnership was a sham, while the correct business purpose test is distinct from the court's intent-based test, the two are not mutually exclusive, since intent is necessary to prove business purpose. The transaction had no practical economic effects other than the creation of intentional artificial tax losses.
Tax court's refusal to allow intervenor is reviewed for clear abuse of discretion, given the broad FRCP rule and the court's procedural discretion. Denial of intervention of right or denial of permissive intervention would both have been appropriate, given the existing representation of interests.
Claim of actual innocence after a witness recantation that resulted in a perjury conviction for the witness was not adjudicated by state courts unreasonably. Since a thorough review of the facts and the state record establish that no relief is warranted, the question of whether a freestanding claim of actual innocence is cognizable in non-capital federal Habeas proceedings need not be answered.
Plaintiff's clam that rudeness was gender-based is unsubstantiated by the record. Two confrontations and a hostile encounter do not suffice for a constructive discharge claim under the statute. A record reflecting resignation from the position precludes a sufficient showing for retaliatory discharge or gender discrimination. While a work assignment might have sufficed for retaliation, sufficient causation wasn't established.
Insufficient proof for Monell claim against municipality arising from police bodycam appearing to remotely activate when inside the plaintiff's house, given technical evidence and lack of showing that there's a general policy to surreptitiously record off-duty officers.
Company's plant to pay employees who stay until the end of a project a bonus is akin to a severance scheme, but does not have the administrative complexity characteristic of an ERISA plan, and is therefore outside the reach of the statute, and of the federal courts.
The state drugs statute isn't divisible; where the state's double jeopadry caselaw ultimately looks to the factual differences between violations within the same statute, a holding that each item in a list is a separate violation doesn't answer the question of divisibility for immigration purposes.
State statute is broader than the generic definition; remand to agency to determine if there is a reasonable probability that the conduct outside the reach of the generic offense would be prosecuted, and to assess alternate grounds of removability.
Jeopardy does not always attach at acceptance of a guilty plea; the relevant criteria for determining the point at which jeopardy attaches are the deft's finality interests and the risk of prosecutorial overreach. Circuit split flagged on both the proposition and the criteria.
Finality interests look to preserving jury verdicts, the chance for the state to marshal its evidence, and the forseeability of the the second charge. The relevant factors for overreach are whether the second charge was pending, and whether the government had a full and fair opportunity to convict.
As deft pleaded to conspiracy involving the statutory offense with a minimum quantity, but the plea, the magistrate's report and the acceptance of plea reflected the statutory offense with no minimum quantity, jeopardy did not attach at the acceptance of the plea, and the court could amend the order to reflect the second statute.
Foreign name of cartel with which the deft had entirely domestic contacts suffices for the sentencing increase for foreign importation.
Given the tolling orders issued by the agency, the sixty-day period for seeking judicial review of agency action wasn't a jurisdictional limit that commenced by operation of law at the point at which agency inaction might have been construed as a denial; the permissive "may" allows the challenger to wait for final action by the agency.
Statute is a mandatory time period for agency action, since it both defines the action and specifies the result of inaction. Since this time limit is designed to protect the regulatory structure rather than individual private applicants, the agency cannot contract or coordinate with the applicants to extend the time-frame.
Federal agency review might have reached the question of waiver sua sponte or on motion of a third party, so the fact that the party challenging the waiver had been a party to the waiver agreement did not estop the federal agency review from reaching the question.
Agency's policy allowing them to construe a request for expedited action as a request for a waiver determination was a reasonable construction of their statutory powers.
New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.
Independent contractor sufficiently manifested assent to clickwrap terms of service containing an arbitration provision, despite the fact that the button clicked to accept the agreement wasn't at the end of the document.
Claim of unconscionability arising from the terms' unilateral modification provision does not address the threshold question of scope of arbitration, and is reserved in the first instance to the arbitration.
Although prescription is an affirmative defense, once established, the burden shifts to the plaintiff to establish an interruption; phone calls with no verification mechanism were insufficient to establish an extrajudicial claim on the insurance policy that might stop the clock.
Given that the taxpayer knew that they had a foreign bank account, the taxpayer didn't tell their accountant about the account, and the taxpayer signed the tax return, the court did not clearly err in finding a willful or reckless violation of the law.
The maximum penalty looks to the statute, rather than the regulation, since they contradict.
No error in mitigation, since the relevant mitigation guideline imposes the maximum penalty on accounts over a million dollars in value.
A foreign bank account is not in itself a property interest sufficient to establish a significant contact with the foreign country.
Plaintiff did not establish grounds for mitigation where the taxpayer is beneficiary of only part of the proceeds of the account.
Reference to an excess penalty in the filing did not preserve an Eighth Amendment claim.
Since an order of remand deprives the nonmovant party of access to the federal courts, precedent dictates that the transmittal of the remand did not divest the court of jurisdiction or the appellate courts of the power to review the remand or any antecedent orders. Since the sua sponte remand to state court rested upon the finding that the removing party must plausibly plead jurisdictional elements, and not upon the stated finding that there was no subject matter jurisdiction, the case falls outside the statute limiting jurisdiction and appeal after remand.
Question certified to California Supreme Court: Under the statute, does a commercial vehicle insurance policy continue until notice of cancellation is delivered to the state, regardless of the expiration date of the policy?
Summary judgment based on qualified immunity for the defts was in error, since it was clearly established in both Supreme Court and Circuit precedent that university organizations were limited public forums not to be subjected to unreasonable or viewpoint-based discrimination. The fact that the policy was unevenly enforced actually reinforces the suggestion of viewpoint discrimination.
As similar cases have been decided on Free Speech grounds, though, the relevant law on Free Exercise was not clearly established.
CONCURRENCE/DISSENT:
Unequal enforcement precludes a finding of facially neutral law of general applicability; the Free Exercise right was sufficiently clearly established.
Because the law asks whether the previous deportation was on the basis of a certain predicate crime, the court engages in the inquiry from the present time, and even where the non-retroactive determination that the crime was not a valid predicate came after the deportation, the inquiry, from the standpoint of the present time, properly determines that the earlier deportation was not on the basis of a valid predicate crime.
Although the immigration removal order signed at the end of the earlier proceedings was signed by the prosecuting authority at the direction of the IJ, there is sufficient evidence of a proper removal order, since both that version and a version later signed by the judge are in the administrative record.
Proper inspection and a procedurally regular admission at the border did not establish a lawful entry, since the statute prohibited entry for ten years after the earlier removal.
Board's correctly determined that, given the phrasing of the current statute, there is no miscarriage of justice exception to the prohibition on reopening a reinstated removal order.
Board's determination that, since the latter reports were not seeking precisely the same statutory remedy, earlier reports filed with the regulator did not equitably toll the statute of limitations for the second remedy, was sound and supported by adequate evidence.
There is no constitutional or statutory right to counsel in collateral statutory discretionary release proceedings. Counsel engaged for proceedings in which the right to counsel attaches do not need to file an Anders brief before subsequently withdrawing from the representation.
Testimony of co-conspirator is sufficient evidence for conviction, unless the testimony is incredible or insubstantial on its face; it is for the finder of fact to weigh the credibility of the testimony. De novo review, as both counsel recited the form of the motion for acquittal.
Proof of a phone call between the two at that time is sufficient evidence for having made a false material statement denying knowledge of a person's whereabouts.
Stipulation to felony status at trial is sufficient to establish contemporary knowledge of that status at the time of firearm possession.
Despite the fact that a large number of juror questions was allowed, deft has not identified, and the court has not found, any that indicate prejudice.
CONCURRENCE IN THE JUDGMENT:
The appeal of the felon in possession count shouldn't have been de novo, even arguendo.
As the plain text of the witness sequestration rule only references exclusion from the courtroom, its presumption of prejudice does not extend to rulings that reach beyond that exclusion, where courts have more discretion. Since deft's counsel could have consented to an alternate arrangement, and appropriate curative questioning was allowed, the fact that the codeft witnesses were in the same cells during the trial was not an abuse of discretion.
Denial of motion for new trial is not reviewed de novo when given without explanation where the grounds are apparent in the record. Denial was appropriate where only new evidence was an affidavit from another prisoner that constitutes, at most, impeachment evidence. Deft's own affidavit is not considered new evidence where it is duplicative of testimony at trial.
Aiding and abetting under the federal robbery statute is a valid predicate crime of violence due to the use of force. It was error to instruct on an alternate theory of culpability, though, as conspiracy under the same statute is not a predicate crime of violence. When one of two prongs might have served as the basis for conviction, the inquiry on appeal is a case-specific and fact-intensive one.
As the appellant's brief was largely cut and pasted from a trial court filing, appellee awarded damages under the Rules. Award against client, but counsel ordered to pay.
Sanctions for making a frivolous argument at the District Court do not preclude sanctions for filing the same arguments on appeal. Response to appellate sanctions motion needed to be more than a cut and paste from the trial level sanctions filing.
Under state's collateral preclusion principles, since the mental condition of the parents was sufficiently considered in the removal proceedings, the standard-specific question of sufficient accommodation can't be relitigated in federal court under the disabilities statute.
Joseph Watley, Karin Hasemann v. Department of Children and Families
Forging of clients' signatures on immigration petitions without the knowledge of the clients constitutes sufficient unauthorized use of their personal information under the aggravated identity theft statute.
Material falsity of the filing is sufficiently independent from the use of the forged signature to justify the independent sentencing increase.
Sufficient evidence for the relevant hundred-document threshold by a preponderance where it was established that 100 basically identical petitions of factual clams were filed.
CONCURRENCE:
While lawful, the indictment's additional charge of identity theft was possibly an unfair use of prosecutorial discretion.
Joseph Watley, Karin Hasemann v. Department of Children and Families
Agency's decision that petitioner had not established state of citizenship was supported by substantial evidence, given the small amount produced after continuance, and lack of explanation for the limited amount of proof.
IJ did not have to make a formal adverse credibility finding to justify rejection of the petitioner's claim as to country of citizenship and requirement of additional evidence.
Under firm resettlement principle, claim against deportation is heard based on the country from which the petitioner came to the US, and from which he held a valid passport, which, since logically possible, creates an inference of sufficient opportunity for permanent residence.
Since the sentencing judge indicated that the eventual sentence was the correct sentence irrespective of the dispute over which sentencing guidelines should apply, the eventual application of the higher range was, at most, harmless error.
Sentencing judge's remark to witness was, at most, ill-advised attempt to put them at ease, insufficient for a determination of judicial bias.
Concurrent procedural regulation of waters reserved to the Tribe in a treaty with the Federal Government isn't an unlawful delegation constituting a procedural injury to those holding inferior rights to take the water, since the Tribe's treaty right to ensure sufficient water levels requires no concurrence from the Federal Government. Even absent the concurrent regulation procedures, the Tribe's right to the water would remain, leaving the plaintiffs without a possibility for redress sufficient to justify Article III standing.
Although the district has recently clarified that the special motion to dismiss statute imposes a burden equivalent to summary judgment in the federal courts, the statute can't be applied in federal court, because the movant under the statute has no burden to make any showing on the merits and the statute limits the discovery process.
Nothing in the denials by the targets of the investigative reporting constituted readily verifiable evidence needed to support a plausible case that the publisher had a degree of awareness of probable falsity sufficient to establish reckless disregard for the truth.
DISSENT:
Even absent contradictory evidence, a story might be inherently implausible, and a publisher has an affirmative duty to reasonably dispel their own doubts. First consider the inherent plausibility, then consider counterarguments.
The concession that there was no evidence that the counterparty to the transaction alleged to be the motive for the bribery knew of the payments, and the lack of motive for self-dealing bribery in the bonuses awarded make the story sufficiently inherently improbable.
The facts cited in the denials were sufficient to cast doubt on the story.
Circuit split suggested.
NYT v. Sullivan should be overruled.
Office entitled to qualified immunity for tripping body-throw maneuver used on naked gentleman making threatening gestures.
Given the ordinary and reasonable inference that people know what they are doing, the police offices had sufficient probable cause for the arrest, given the illegal conduct that they had witnessed, despite the claim by others at the scene that the plaintiff was experiencing a medical episode; the probable cause was not dissipated by the time the plaintiff was released from the hospital, since from the police officers' perspective, the conduct seems inconsistent with the asserted condition.
While the explanation for the plaintiff's actions was ambiguous, this did not mean that it was obvious that the story offered by the plaintiff and others at the scene.
Omission of claimed medical condition from report's supporting affidavit wasn't a deliberate fabrication, as precedent requires that the officer either knew or had cause to know of actual innocence, or used coercive and abusive investigatory techniques.
DISSENT:
Given the exculpatory asserted medical condition, the determination of probable cause required an assessment of the credibility of the varying claims, and reconstructing and judging the reasonableness of these determinations is a matter for the jury.
(Samples of questions that the plaintiff's lawyer might ask on cross.)
Plaintiff bringing suit under the statute should not be assessed fees or costs unless the court makes a specific finding that the claim was frivolous, unreasonable, or groundless.
Statute's description of judgment on the merits looks to actual adjudication of the substantive issues of the claim rather than looking to the procedural rules' definition of judgment on the merits. A dismissal of a claim against an agent due to a limitations period does not require the dismissal of the claim against the alleged principal under the statute, or under normal principles of vicarious liability.
Abuse of discretion to admit evidence of past bad acts that were time-barred from the suit, as they were more prejudicial than probative. As it became a theme of the case, limiting instruction was insufficient.
Evidence of retaliation and harassment by non-defendant agents of the municipality was also more prejudicial than probative, as it translated into the theme that the municipality was a bad actor.
Implying that the municipality had indemnified the defendant officers for punitive damages when in fact only compensatory damages were to be covered was an abuse of discretion.
Cumulative evidentiary errors and misleading jury instructions suffice for vacatur and new trial.
420 Month below-guidelines sentence not unreasonable. Seriousness of the offense outweighed the mitigating factors.
Absent a showing of reasonable probability that the sentence would have been different otherwise, no plain error in imposition of lifetime supervised release despite three year limit in statute, given imposition of lifetime supervised release under separate count.
As a claim of discrimination under the federal statute is an attempt to remedy a personal injury to civil rights, the appropriate statute of limitations is taken from the appropriate state's personal injury tort law.
Court did not abuse its discretion in revisiting the petitioner's sentence under the statute by first deciding that the petitioner was eligible; second calculating the revised sentencing range using only the changes described in the statute; third, calculating the new sentencing range accounting for all intervening changes in the law; and fourth, considering the facts of the offense and equitable factors from conduct while incarcerated.
Where the statute allows for resentencing for extraordinary and compelling reasons, the court has discretion to consider each case individually, rather than considering the manner in which other courts have handled similar petitions.
Plain text of a federal statute permitting the transfer of an action where the court has a want of jurisdiction allows transfers for lack of personal jurisdiction, lack of subject matter jurisdiction, or both.
The provisions of the statute are compulsory, so they apply whether or not the court cites it when transferring an action.
State statute prescribing any suit after one year from the accrual of the claim but tolled by either filing a claim in a court of sufficient jurisdiction and venue or service looks to the federal courts to determine the date of filing of suit, so the federal law relating back the transferred suit to the date of filing in the first venue. The state statute looks to the federal relation-back because the Rules of Decision Act privileges federal statutes over state laws, so the Erie analysis looks first to the federal statutory law. The federal statute controls under the Supremacy Clause; the case is within the statute, and Congress had sufficient authority to pass the statute to regulate the federal courts.
DISSENT:
Federal statute wasn't intended to regulate state statutes of limitations. State law is an integrated regulation of statute of limitations and service of process. Majority's view leads to unequal results between state and federal court, and in federal courts handling transferred claims and federal courts serving as the initial forum
Under the Code, sufficient mutuality for offset of pre-petition monies mutually owed cannot be created by contract in a triangular offset; the claim on the funds is a personal one, and one tied to the identity of the claimant.
The second party also can't transform the contract into a claim.
(Perhaps. We don't know many things, but we especially don't know Patent and Bankruptcy. Entertainment value only, folks.)
Contemporaneous objection to the substance of a sentence condition does not preserve a procedural objection against the explanation of the sentence, which is then reviewed for plain error.
On plain error review, deft carries the burden to establish that the error was dispositive.
Court did not commit plain error in imposing a release condition broadly banning types of obscene content, given the history and characteristics of the offenses, including uncharged acts.
In a civil forfeiture proceeding in Admiralty, discovery sanctions are slightly more severe than in the civil analogue. The Court must weigh severity, repetition, and deliberateness of the violation must be considered. No prejudice need be shown. The court did not abuse its discretion in striking the late response and issuing default judgment against a vessel whose claimants asserted a Fifth Amendment exception to civil interrogatories, having previously asserted the exception in a motion to stay that was denied without prejudice. Although one of the claimants was being held in solitary confinement during the discovery period, the other claimant was not so encumbered.
Three to five phone calls per week to out of state customers and vendors establishes sufficient interstate commerce for the jurisdiction of the federal labor standards statute, since the statute explicitly includes communication within its definition of commerce.
Wendy St. Elien v. All County Environmental Services, Inc., et al
Assume without deciding that the District Court erred in holding that the document was not sufficiently authenticated in liminal proceedings because three of the signatures were not authenticated.
Foreign state's law treats champerty as an affirmative defense to formation; since the champerty claim implicated the merits determination, summary judgment standard would likely be appropriate, even in the context of a motion to dismiss.
Appeal of champerty finding that doesn't mention the procedural posture of the determination below forfeits any challenge to the standard of review.
Since the litigation trust created by the injured party as both grantor and beneficiary and to which the claim was assigned in an exchange for value would retain a fixed percentage of any recovery, the agreement was void for champerty under the state's law, and the litigation trust therefore did not have sufficient Article III standing.
PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC, et al
High school coach's demonstrative religious actions at the center of the field immediately following the game were performed as a public employee in the course of performing the responsibilities of the job.
The actions cannot be considered personal and private because of the coach's prior attempts to publicize them. The collective nature of the activity on almost every occasion establishes that an objective observer would conclude that the practice, coupled with the exclusion of others who might seek access, was an endorsement of a particular religion.
Regulation of coach's conduct was sufficiently narrowly tailored to survive strict scrutiny, given the need to avoid a violation of the Establishment Clause.
School district had no obligation under Title VII to rehire, given the violation of policies. Plaintiff can't establish a Title VII disparate treatment claim, as there were no comparators engaged in perceptible prayer. As the coach's only request was public prayer at midfield after the game, school district was not compelled to accept it as a reasonable accommodation of a practice of bona fide religious belief conflicting with job responsibilities, and it was a sufficient basis for the adverse employment action.
CONCURRENCE:
Fact-driven holding. (Analysis tracks majority opinion.)
The right of a student in a school setting to be free of an unlawful seizure at the behest of police consisting of a brief detention and interrogation was not clearly established in circuit precedent, set forth in a robust consensus, or obviously clear, at least as asserted against a deft with a minor and ministerial role in the seizure.
Permit scheme for city street fair staged by development commission is a content-neutral means of regulating competing use of the public forum; the permit allows for the permitted speech and allows the restriction of disruptions to the permitted speech.
Declared intent to, in the future, speak in public areas is insufficient to establish irreparable harm for an injunction affecting a specific street fair.
The statute is not a valid sentencing predicate, since it encompasses threats to property, and both the common law crime and the predicate option of extortion require threats against the person.
Since counsel had an obligation during plea negotiations to assess the potential sentence and communicate the potential sentence to the deft, impending challenges to sentencing practices, even if not generally being made at the time, can be sufficiently foreshadowed to require a hearing for a later Habeas petition for ineffective assistance.
Showing of prejudice not required, since the calculated sentence range serves as a lodestar for its subsequent modification.
Since a sentence was pronounced and the state court record indicates that the deft was credited for time served, rather than simply released, a challenge to the duration of sentence for purposes of subsequent sentencing factors is determined by the state court record of judgment, which can only be altered by a collateral challenge to the earlier conviction.
Since the dictionary definition quoted in an earlier holding to exemplify the plain meaning of a term isn't itself binding in its terms, the activity proscribed under the state statute that reached beyond the bounds of the federal law before the term in the federal law was interpreted to merely have the plain meaning is still within the plain meaning of federal law, despite possibly being outside the dictionary definition quoted.
Objection to the disclosure of the deft's past occupation was waived when deft raised it several times during the trial.
Deft affirmatively agreed to the admission of the draft email at trial, waiving any subsequent objection.
Appellant carries burden on plain error review to show why forfeited objection at trial meets the standard for plain error.
Sufficient evidence to establish that deft had the requisite intent to defraud and was an active and knowing participant, since deft knew that the funds were illicit, and continued to spend them.
Alteration of another person's tax forms and pay records in order to secure a lease is sufficient for the sophisticated means sentencing bump.
Considering the situation under the supervisory powers of the appellate court over the proceedings in the District Court, rather than under Due Process: the District Court did not evaluate the defendant's defense, make a finding as to the willfulness of the violation, or sufficiently explain the sentence in light of the parsimony principle and the sentencing statute.
Physical presence in the courtroom is sufficient to give a criminal court jurisdiction over a deft.
Habeas grounds not raised at trial or on direct appeal and then raised for the first time on a collateral challenge are subject to de novo review on matters of law if the government doesn't argue the procedural default at the District Court.
If the conduct relative to the statute's focus, the object of the statute's solicitude, occurred in the US, it is a permissible domestic application of the statute, even if related conduct occurred abroad. Since the protected victim was in the US while being coerced into the activity by means of the Internet, the present case is a permissible domestic application of the statute, even though the deft was abroad.
Under the statute, an agent of a foreign government operates under foreign direction and control in something more than a one-sided agreement, but one that doesn't necessarily rise to the level of control suggested by employment.
The exclusion of foreign legal transactions from the statute's reach is an affirmative defense, not an element. Affirmative defenses are not necessarily smaller in scope, and can be used to define the statute's scope.
Circumstantial evidence and rational inference may be used to establish that a person was acting as an agent of a foreign government.
Court erred in granting acquittal, since a rational juror might have determined that the organizational structure and contacts sufficiently established the possibility of foreign direction and control.
Court erred in granting acquittal on Conspiracy, given the agreements, intent to fly below the radar, and decision not to file a notification with the AG.
One-sentence explanation for the granting of a new trial due to the weight of the evidence was categorically insufficient.
Court abused its discretion in holding that the jurors would not honor the limiting instruction on hearsay materials, given the volume of the materials; the ability of the jury to respect their instructions is an almost invariable assumption of the law.
Restricting the reasons for granting a new trial to the ones recited in the motion, including noting the cumulative error, is a jurisdictional limit.
In an interlocutory appeal over an arbitration provision, the court to which the appeal is taken must only assure itself of the appellant's right to appeal and the fact that the court from which the appeal comes would have subject matter jurisdiction over a suit arising from the conflict between the parties.
As answering the question of whether a non-customer plaintiff is equitably estopped from avoiding a mandatory arbitration clause within a terms of service necessary for the use of the service is neither necessary for nor inextricably interwined with the question of whether the plaintiffs have standing to sue, the latter can't be answered under pendent jurisdiction on an interlocutory appeal as to whether the non-signatory is equitably bound to the agreement.
Since the plaintiff's are complaining of discrimination that keeps them from using the service, they are not equitably bound to agreement that they have neither embraced nor benefitted from.
Not providing timely and adequate medical services to detained individual prior to arraignment doesn't violate the disability act, since the disability requiring medication is the reason for the service, not the obstacle for which a reasonable accomodation would have to be provided. Plaintiff was not denied medical services because of the disability.
At summary judgment, the defendant was not required to provide a nondiscriminatory theory for not providing the medication.
Limiting the testimony rebutting a claim of pecuniary motivation to the social justice motivations for participating in the protest rather than allowing testimony about past work for social justice was not an abuse of discretion.
State law permits a police officer to use an objectively reasonable amount of justifiable force in any non-arrest situation; the contact does not in itself give rise to a claim for assault, and the justification is not limited to the circumstances enumerated in state law.
Since the question of objective reasonableness of force looks to the Fourth Amendment, it was error to instruct the jury that the subjective mental state was at issue; where subjective mental state was potentially dispositive, the error is not harmless.
In a Habeas class action seeking relief for immigration detainees in the current pandemic, supervisory Mandamus doesn't run because the lower court has not palpably erred; it has reduced the detainee population significantly. Advisory Mandamus doesn't run, since the determination of pandemic severity is a factual question, not a legal question, and since the population has been lowered, the balance between extraordinary circumstances and likely success doesn't need to be corrected.
Court did not clearly err in holding that involuntary antipsychotic medication was medically appropriate, given physician testimony. While it was possible that the illness is of a type that will not be affected in matters relating to the trial, the long-term benefits of the medication make it medically appropriate despite the risk of side effects.
Jury's award of punitive damages without compensatory damages in a suit seeking return of a 400K investment necessarily found that while there had been an injury, no compensatory damages were warranted. A lack of compensatory damages when awarding punitive damages does not offend the state's law, as establishment of damages is different than award of damages. Additur in this situation would be unconstitutional.
Criminal fines for correlative conduct cannot be used to establish disproportionality of award.
Court did not abuse discretion in holding that the claim at law precluded equitable redress for the lost funds.
Court's reduction of requested fees was valid under governing state law; similar reduction in costs was valid under governing federal law.
Court erred by applying federal law to claim preclusion; the appropriate law is the law of the forum in which the first decision was made.
Economic loss doctrine, under the law of the state, would not bar claims for fraudulent and negligent misrepresentation.
The airline deregulation act preempts the state's restriction on air-ambulance billing, and the law is not saved under the insurance statute, as it does not have the effect of assigning or transferring risk, and the air ambulance subscription plan does not guarantee treatment or act as an intermediary.
In assessing the credibility and reliability of the tip of illegal activity in the apartment parking lot, the tipster's familiarity with the physical environs was insufficient validation; as the tip wasn't contemporaneous with an emergency situation, it is held to a higher standard. The tip was sufficiently specific in its physical description of the suspect.
Given the lack of corroboration, the police had no reasonable suspicion that the criminal activity was afoot. The search was conducted after verification of entirely innocent information.
The tip's claim of ongoing drug sales meant that the search at the end of the day wasn't on stale information.
DISSENT:
This means that police must personally witness a crime.
Tipster's assertion of being employed by the apartment complex and subsequent specific description of the details corroborated the information sufficiently for reasonable suspicion. Would suffice for probable cause under Gates.
Navarette wasn't based on emergency situations, but rather stands for the proposition that a tipster who tells the truth about innocent details will tend to tell the truth when asserting criminality.
Circuit split flagged.
S1983 False arrest claim was immunized by an intervening indictment from the grand jury and the lack of a specific claim that the officers involved had deliberately or recklessly provided false information to the magistrate or the grand jury.
Circuit precedent does not recognize a freestanding malicious prosecution complaint under S1983.
Equal protection claim dismissed for lack of comparators or discriminatory intent.
A claim against the municipality for inadequate training that relies on a single incident must demonstrate the complete lack of training.
No abuse of discretion in denying leave to amend the fourth amended complaint.
Sua sponte dismissal of claims upheld, since magistrate had recommended it and plaintiff briefed the issue -- so long as the plaintiff has a fair opportunity to plead their best case.
Since the debt collection letter said that calling the company would cause collection efforts to stop, and not that it would legally compel the collection efforts to stop, under the least sophisticated debtor standard, the letter was not misleading.
Proximity to the legally required information about how to question the claim by mail would not cause undue confusion about which mechanism to use to preserve their rights against the claim.
Federal equal credit law's prohibition on discrimination according to marital status doesn't preempt the state's common law doctrine of necessities, which holds a medical bill to be valid against a spouse; the medical debt is an incidental credit, distant from the traditional credit-provision intent of the law.
Spouse's action against the medical entity for not fulfilling the common law requirement of demand doesn't state a claim, even in the absence of the facility's having made a demand on the estate of the patient, since public records indicate the lack of an estate.
Court did not abuse discretion in denying leave to amend, since there was no showing of claims falling outside the entitlement under the doctrine of necessities.
Employer's contract claim against potential trustee of employee stock benefit plan is remote from the usual ERISA concerns, and therefore not preempted by the statute.
Implied spoken promise subsequent to execution of written contract can be the basis for a promissory estoppel claim.
Integration clause refers only to the time of formation -- when subsequent parties to the contract were substituted in, the integration clause still looked back to the time of initial formation.
A lie about a side issue in the course of a contractual breach is separately actionable as fraud where the lie implicates a broader social duty owed to all individuals.
By conceding valid substitution into the contract for the purposes of the breach claim, the plaintiff is estopped from arguing that the indemnification agreement compelling the payment of legal fees doesn't apply to the defendant. Plain meaning of indemnify encompasses first party claims. Under state law, it wouldn't be specific enough to cover any damages award.
The notice of appeal properly identified the party taking the appeal, the orders that were the subject of the appeal, and the court to which the appeal was being taken; the jurisdictional element of the rules of appeal were satisfied, and since notice was given of intent to appeal all orders, the description of the appellant in the caption as successor in interest to an entity that only accounted for some of the claims was excusable.
As assignment of claim doesn't undo an injury, the claim filed by an entity that had already assigned the interest had sufficient Article III standing; assignment of claim is distinct from grant of power of attorney, which would trigger a prudential limitation on standing.
While choice of law for corporations usually looks to the location of the business, choice of law for partnerships looks to the law of the forum. Questions of state law can be dispositive in the federal standing inquiry.
Although legal capacity of parties isn't a jurisdictional element in standing, existence of the entity is, and since the jurisdiction provided for no wind-up time, the non-existent parties did not have standing at the time the suit was filed.
A suit filed by a non-existent entity is not a nullity; so long as there is a real party in interest willing to join the suit at the time the suit is filed and the real party in interest ratifies, is substituted, or is joined within a reasonable time, there is sufficient subject matter jurisdiction for the action at the time of filing. Since procedural reforms have allowed for nominal parties, this doesn't offend the Constitution. Court retains the right under the rules to deny joinder for equitable reasons. Circuit split flagged on the nullity doctrine.
Equitable tolling is available for new plaintiffs joined to existing class actions.
Statutory collateral attack on a past adjudication under the auspices of Clear and Unmistakable Error looks to the law of the time and asks whether the error was undebatable and would manifestly have changed the outcome at the time.
Novel judicial constructions of statutes generally are law for all cases pending on direct review.
No standing for a minority percentage owner of a television station seeking to undo multiple sales of the business, because even if every administrative decision was reversed and every deal unwound, the business would be back in the hands of the majority percentage owner who would then have the power to sell the station again.
Even absent testimony from cooperating witnesses that the deft had entered into the trade secret conspiracy, there was sufficient substantial evidence for the finder of fact to conclude from the circumstances that such a tacit conspiracy existed, and that the deft had agreed to join it.
Sufficient evidence to indicate that at least two conspirators believed that the appropriated information contained trade secrets.
CONCURRENCE:
The government didn't misrepresent the evidence.
CONCURRENCE:
The government misrepresented the evidence.
Agreement on taxation of ceded land is subject to the court's plain meaning reading; the member of the tribe that is party to the accord has no power to define a contrary reasonable reading.
Casino revenues did not arise from the land in question.
In the absence of a formal lease, the tax court determination that the lands were not leased by the tribe is supported by substantial evidence. Tribe has not identified any statutory basis for the claimed exemption for profits from leased lands.
The required return of federal funds was not a penalty or a disgorgement, and therefore was not subject to the statutes of limitations on sanctions by the agency and administrative penalties generally. Instead, the funds were monies due the United States under the federal debt collection act, since the improper use had been discovered by an audit by the agency's inspector general, a predicate of the debt collection act.
Although the regulations were complex, there was sufficient notice of the regulation for due process purposes, given the common understanding of the relevant group -- here the specialized knowledge of a telecommunications carrier.
Although the hearing must be held at a time when the deprivation can be prevented, that does not necessarily mean that it must happen before the agency has reached its decision to deprive. Agency collection proceedings during the pendency of the litigation did not raise constitutional concerns.
Agency's interpretations of the regulations were not arbitrary and capricious.
Incomplete record provided in the current litigation did not prejudice the plaintiff, and the incomplete record offers sufficient grounds for the agency's decision.
The proposed social group of people who might testify against certain criminal organizations is, unlike in some other countries, not independently socially recognizable and distinct.
As the IJ referred to the irregular evidence offered in support of the argument suggesting future torture, the exhibit was admitted by judicial notice, and the Board needed to account for its claims in their decision.
DISSENT:
The irregular evidence isn't in the appellate record, so the Board can't account for it on remand, and the evidence itself is mixed as to the claim.
Agency did not abuse its discretion in refusing to reopen an immigration proceeding on the basis of changed country conditions, as the petitioner did not produce evidence of a material change in the conditions within the country; while a change in personal circumstances can make the changed conditions more relevant to the petition, even such a hybrid claim would require a showing of changed conditions to reopen the proceeding.
As the comparison of duties between privately funded and federally funded research academics is fraught with judgment, not law, their equivalence is a genuine issue of material fact for trial.
The standard under the state law is broader than the federal standard, reasoning from the greater, there is an issue for trial on the state claims as well.
As plaintiff in disparate impact claim wasn't challenging thempe practice of retention raises, but additionally suggesting that the salaries of the cohort be raised as well, it is an attack on a specific process, not general one. The existence of an alternative undercuts the claim of business necessity.
Although statistics derived from small sample size have less probative value, disagreement among experts as to the validity of the numbers can suggests a triable issue.
As the plaintiff never engaged in retention raise negotiations, there is no issue for trial on state and federal disparate treatment claims or Title IX. Insufficient evidence of intentional discrimination for state ERA claim.
DISSENT:
Equal Pay Act requires a case-specific examination of the actual job performance and content.
Full Professors are like professional athletes. Significant differences in all of the jobs for the members of the plaintiff's department.
State claim only requires a common core of tasks, which presents an issue for trial.
Retention negotiations are elective -- each professor chooses to engage or not. Small sample size. The practice is a business necessity.
Notice and a hearing on the landowners' applications for variances from a zoning regulation sufficed for procedural due process. The zoning regulation requiring a right of way wasn't irrational, given the public interest in road construction. Claim of unfair exaction improperly attempts to recast a takings claim as a procedural due process claim.
No plain error in sentencing court's omission of the finding that the possession of the firearm facilitated the possession of the drugs, since the court determined that the firearm was used for protection during drug-related activity, rather than simply assuming a connection from physical proximity.
Refusal to vary downward not unsupported by the record; within-Guidelines sentence not unreasonable.
Substantial evidence for Board finding that neither policies nor the CBA established a progressive system of employee discipline; the supervisors' actions were appropriately characterized as reports without any inherent enforcement power. The reports also are considered insufficiently authoritative to be considered recommendations. A one-time distribution of gift cards was insufficient to establish manager status. Although employees could temporarily remove other employees from driving, their efficacy at this was determined by their own performance, not the employee's performance, as precedent compels for a finding of manager status.
Commonsense argument that there must be a significant proportion of managers among the employee would inappropriately mix the lay standard with the legal standard required by statute and precedent.
Vocational expert was present during recitals of sufficient evidence to support their later findings, and the determinations were reached by appropriate hypothetical questions from the ALJ made without contemporaneous objection.
As the writings found in the defendant's car supported the theory of the crime and established a potential future danger to the community, consideration in sentencing was not a violation of the First Amendment.
As the deft requested the change late in the trial, the claim of prosecutorial misconduct due to the use of gender-specific pronouns was waived; alternatively, pronouns are not dispositive. Misgendering is insufficient basis for a claim of judicial bias; no error in denial of motion to recuse.
Plea deal identifying one act as applicable for restitution did not preclude the seeking or award of restitution under an additional act.
Interstate stalking statute does not unconstitutionally co-opt state authorities.
State law provides the rule of decision on some S1983 substantive legal questions related to the defense raised, so the assertion of the state statutory evidentiary privilege defense, although defeated by the federal rule on the privilege in question, doesn't mean that all substantive defenses have been presently waived.
Lack of notes from a deceased physician and a delay in the referral to a specialist deft present an issue for trial, as they might show either not receiving a prisoner's claim or a deliberate indifference to the claim.
An institution-level medical director within a larger corporation is not a unilateral setter of standards for purposes of Monell liability.
Sentence imposed pursuant to a plea agreement that had incorrectly calculated the mandatory fees payable by the deft but in practice imposed the higher fee required by law was insufficient plain error to revisit the sentence, despite the deft's inability to withdraw from the agreement at sentencing.
Federal collateral review can look past individual state court opinion to determine if the state judicial proceedings were consistent with the federal standard.
Judge's disqualification of criminal counsel unknowingly appointed to defend another defendant charged for the same occurrence, given deft's refusal to waive conflicts was a reasonable application of the Supreme Court's caselaw requiring a serious risk of conflict. The subsequent appearance of the other defendant on the trial's witness list was independently sufficient, regardless of the probability that the witness would actually be called.
Consent decree that provides for the award of fees if there has been a violation of the agreement by one party does not require an ongoing violation to trigger the possibility of an award.
Courts order that the state party to the agreement ensures treatment of the incarcerated parties to the agreement within a certain timeframe was not a reasonable inference of the parties' agreement, which called for the incarcerated parties to be referred for treatment within that timeframe.
Manifest disregard of the law is not a freestanding grounds for vacatur of an arbitration decision under the federal statute.
Sufficient jurisdiction to review a denial of legislature members' immunity under the collateral order doctrine, since otherwise the legislators would have to participate in pretrial and discovery matters, and the question is one purely of law.
State legislators' common law federal immunity and immunity from state claims under the state constitution protect actions and speech regardless of subjective discriminatory intent.
Unlike municipal legislators who have both administrative and legislative functions, the actions of a state legislator that are legislative in nature do not have to be proven to be substantively legislative in intent and effect. Correspondence and telephone calls relating to legislation are protected as factfinding.
Qualified immunity for political errands not within the scope of legislative immunity, as there was not any clear teaching of the courts that the allegedly discriminatory campaigning in the community was against the law.
Post-petition missed merger states a subsequent claim by the missed bidder for administrative expenses under the Code, despite the fact that the missed bidder filed multiple post-attempt judicial challenges, forcing the estate initially to pay the agreed penalty for the missed transaction.
Benefit to the estate should be considered broadly, and the missed bidder's due diligence in setting up the deal, clarifying the issues and setting a roadmap for the subsequent lesser bid plausibly conferred sufficient benefit on the estate to justify statutory priority for the administrative expenses claim. Finder of fact will need to determine if this benefit was offset by the costs that were forced by prolonging the missed deal.
Holding a substantive RICO conviction -- in which the underlying offense ple(a)d(ed) to or proven involved as an element the use of force -- to be a crime of violence is, under de facto modified categorical review, not plain error. Prior circuit precedent requiring two of the three underlying offenses to involve the use of force is dicta as to convictions with only one offense involving the use of force.
Sentence was not substantively unreasonable.
When imposing sanctions under the courts inherent powers, the court must first consider not the actual disruptive effect in the proceedings, but the intent of the offending party; a single filing offers sufficient grounds for sanctions.
Since the only record of the telephone interview was the investigator's notes, although the report of the investigator is entitled to a presumption of regularity, the discrepancies between the conversation as recorded in the notes and the other interviews of the petitioner do not offer sufficient evidence for the agency's determination.
Re-sentencing under the statute is not a plenary re-sentencing is not a plenary review of all intervening changes in the law, but an imposition of a sentence incorporating the specific changes mandated by the statute. The judge is then free to weigh the intervening changes in the law in the subsequent discretionary resentencing. Affording plenary sentencing would unfairly reward those who had been convicted of the predicate offense.
Tenfold, almost equally divided circuit split flagged.
DISSENT:
No need to bifurcate the process; once the court determines the eligibility for resentencing according to the law at the time of the original sentencing, before making the gating decision, the court is then free to consider subsequent legal and factual developments before deciding on whether to grant the motion to revisit the sentence.
The appropriate test in this context for work under the statute is whether there are either substantial duties or a substantial amount of time and effort controlled or required by the employer and primarily for the benefit of the company, rather than whether there is complete relief from duty.
Legal conclusions given in deposition testimony on employment conditions are presumptively not binding on the deponent entity.