Three in the DC Circuit from Friday, but too much multitasking today. Perhaps tomorrow. Cheers.
CB
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.
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
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