DC Circuit: BCP Trading and Investments, LLC v. Cmsnr. IRS

 

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.

BCP Trading and Investments, LLC v. Cmsnr. IRS

Seventh Circuit: Cedric Cal v. Jason Garnett

 

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.

Cedric Cal v. Jason Garnett

Fifth Circuit: Newbury v. City of Windcrest

 

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.

Newbury v. City of Windcrest

Fifth Circuit: Atkins, et al v. CB&I

 

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.

Atkins, et al v. CB&I

Fifth Circuit: Alejos-Perez v. Garland

 

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.

Alejos-Perez v. Garland

Fifth Circuit: USA v. Brune

 

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.

USA v. Brune

Second Circuit: New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.

 

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.

First Circuit: Emmanuel v. Handy Technologies, Inc.

 

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.

 Emmanuel v. Handy Technologies, Inc.

First Circuit: Marcano-Martinez v. Coop. de Seguros Multiples

 

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.

Marcano-Martinez v. Coop. de Seguros Multiples