Three patent decisions, viz:
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.
DC Circuit: Selvin Solis Meza v. Tracy Renaud
Since the plaintiff is seeking to relitigate a question decided adversely in a removal hearing, the question arises from the removal action or proceeding; Article III review is therefore limited by statute to narrow areas, including timely challenge to final order of removal.
DC Circuit: Gunay Miriyeva v. USCIS
Statutory judicial review mechanism for denied naturalization applications implicitly forecloses parallel district court jurisdiction due to the fairly discernible intent of the comprehensive and interrelated statutory scheme, the fact that the exclusive remedy would not foreclose meaningful review, and the fact that the requested relief -- a change in agency policy that would be dispositive for the plaintiff's case -- is not wholly collteral to the statute's provisions.
Tenth Circuit: Lupia v. Medicredit
Although insufficient harm under common law, the improper phone call from a debt collection agency was of the same kind of harm recognized at common law as intrusion upon seclusion, and Congress addressed this type of harm in the creation of the statute.
Summary judgment for the nonmovant wasn't on novel grounds of which the movant had insufficient notice; the nonmovant is entitled to point out that the motion for summary jusgment is unsupported by the evidence.
Bona fide error defense unavailable as a matter of law, since no reasonable jury could find that the policies were designed to avoid the making of unauthorized calls.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110562706.pdf
Ninth Circuit: Guerier v. Garland
Since the due process rights of aliens who have not effected an entry into the US are coextensive with the statutory scheme and mechanisms for redress within that scheme devised by Congress, when Congress excludes that form of redress, Article III courts have no jurisdiction to hear even a colorable constitutional claim of deprivation of the due process accorded by statute.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-70115.pdf
Ninth Circuit: Decker Coal v. Pehringer
ALJ decisions on motions for reconsideration or modification of award under the statute are reviewed for abuse of discretion, since the statute grants the ALJ broad discretion, and judgments on motions to reopen and reconsider in other areas of law receive similar deference.
As the ALJ's have no policymaking role and are employed in the implementation of the statute at the discretion of the Executive, the protections against removal of ALJ's so employed do not violate Article II powers of the Executive.
ALJ's are judges who make decisions that are subject to vacatur by people without tenure protection. Properly appointed ALJ's don't trammel on the President's executive power.
Finding of inproper removal protections would not imperil the decisions of a lawfully appointed ALJ that have been susbsequently ratified by the Secretary.
Given the specific procedure in the statute, ALJ did not abuse discretion in denying motion to reconsider and modify; the statute empowers the agency to administratively modify the finding, and specifically forbids the initiation of a reconsideration before an ALJ. Given the interest in finality, no abuse of discretion in denying motion to reopen.
Once the presumption arising from fifteen years of work in similar considtion arises, the burden shifts to the employer to disprove total disability due to pneumoconiosis.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-71449.pdf
Ninth Circuit: Flores-Rodruigez v. Garland
Alien facing deportation was not sufficiently put on notice that his past claim of having been born in the US was to be the main issue in the final heaing on the merits, on a motion to sua sponte reconsider the earlier determination of time, place and manner into the country. When a person is charged with a crime or charged with allegations waranting removal from the country, that person is fairly entitled to notice of the claims against him and an opportunity to be heard in opposition.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-70177.pdf
Ninth Circuit: Perez v. USA
Alleged violation of a jus cogens norm doesn't waive federal soveriegn immunity for purposes of a claim under the Alien Tort Statute under a theory of extra-constitutional wrongdoing.
Equitable tolling not available for second cause of action, which under the law at time of filing would bar recovery under any other cause of action, since this judgment bar would prohibit subsequent recoveries, but did not address claims filed in the same suit, either one of which might have prevailed.
Extension of Bivvens unavailable, as an action against the agency head would be an inappropriate attempt to change government policy, and the claim against the agent who actually shot the Mexican citizen on the border fence has national security implications.
CONCURRENCE IN THE JUDGMENT AND PARTIAL CONCURRENCE
No need to reach sovereign immunity, as the elements of the ATS claim aren't met.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/17-56610.pdf
Ninth Circuit: Michael Sackett v. U.S. Environmental Protection Agency
Case was not made moot by agency's withdrawal of an enforcement order, where the underlying determination of jurisdiction remained, since it was not absolutely clear that the agency would not seek to reinstate the order.
Although the government enjoys a presumption of good faith in voluntary cessation, it must demonstrate that its change is entrenched or permanent.
Court did not abuse its discretion in admitting memo postdating the relevant decision, since the memo summarizes the same information that the agency relied upon, rather than being a post hoc justification.
Under Supreme Court precedent, EPA jurisdiction over wetlands requires a significant nexus with navigable waters, rather than the freer standard set out by the plurality in that case, since the first standard is a logical subset of the plurality's rule.
Agency's conculsion that painiffs' wetlands have a sufficient nexus to navigable waters wasn't arbitrary, and was supported by the record.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-35469.pdf
Ninth Circuit: United States of America v. Steven Ray Prigan
As it criminalizes violence or the threat of violence against property as well as persons, Hobbs Act Robbery is categorically not a crime of violence under the sentencing guideleines. Similarly, the generic crime of Robbery enumerated elsewhere in the guidelines is narrower than Hobbs Act Robbery, since federal Robbery requires imminent danger to the person; the generic crime of Extortion is also narrower, as caselaw requires threats to be directed against the person.
Not harmless error, as the court didn't explain a basis for variance that would account for the resulting variance.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/18-30238.pdf
Eighth Circuit: Louis Gareis v. 3M Company
Plaintiff suffered no prejudice from the exclusion of evidence of knowledge of risks and effective alternatives on the part of the device manufacturer, since none of the evidence excluded addressed causation, an element of the claim.
If the admission of expert testimony on operating room airflow was error, it was harmless, given the many other avenues established for the bacteria to have entered the wound.
As causation is an element of a lack of warning claim under state law, if the court erred in holding that the deft had actual or constructive knowledge, the error was harmless, since causation was never established.
Seventh Circuit: Robert Bless v. Cook County Sheriff's Office
Court did not abuse discretion in quashing deposition of city sherriff, since the sherriff was not personally involved in the employment matters at issue, and the plaintiff did not describe the admissible evidence that might result from the deposition beyond the existence of a conversation at a political event.
Employment action was too attenuated from the employer's gaining knowledge of political activity to support a claim for political retaliation, and the nondiscriminatory bases offered by the employer for the action were insufficiently rebutted.. Claim of racial dicrimination doesn;t present a genine issue of material fact for trial, since there were decisionmakers outside of the protected class and the nondiscriminatory reasons for the action were insufficiently rebutted.
Seventh Circuit: Brian Hope v. Commissioner
Unequal treatment of a state's residents under the 14th Amendment right to domestic travel only occurs when a law expressly differentiates between residents based on their length or timing of residency.
Absent a violation of the right to travel, the equal protection claim should be assessed under rational basis review.
State's offender registration law is insufficiently punitive to base an ex post facto claim upon it; the stated purpose of the legislature was civil and regulatory. In practice, it's sufficiently different from parole, as the status can't be revoked; its restraints and disabilities aren't sufficiently severe to make the law punitive; residency restrictions do not serve punitive aims, and there is sufficient connection to nonpunitive purposes; and the law is not excessive in relation to its aims.
CONCURRENCE:
The registration law is permissibly retroactive; it imposes obligations beyond those prescribed at the time of the offense.
CONCURRENCE/DISSENT:
Requiring registration of residents who are subject to registration in their prior state of residence puts those residents on unequal terms with residents of their present state who are shielded from registration requirments by a decision of the state's supreme court holding the registration requirment to be sufficiently punitive to trigger ex post facto scrutiny.
A resident of the instant state who then travelled to another state where they were subject to registration requirements would then have to register in the instant state upon their return, burdening the travel right.
Seventh Circuit: Stanley Boim v. American Muslims for Palestine
A federal court has sufficient independent jurisdiction over a claim to enforce an earlier federal judgment against a putative alter ego of the original deft when jurisdiction over the putative alter ego would arise under the statute that conferred the jurisdiction over the original action. The question of whether the second organization is in fact an alter ego of the first is a merits question, not a jurisdictional threshold.
The ERISA framework is not compulsory when assessing alter ego under the antiterrorism laws.
Seventh Circuit: Ronald Schmucker v. Johnson Controls, Incorporated
Under the statute, a citizen suit claiming that an agency is not following regulations can't look at documents not having legal force to supply missing terms in the regulations and standards.
Court appropriately held that, given existing remediation, there was insufficient imminent and substantial endangerment to the town for the citizen suit to prevail under the statute.
Sixth Circuit: Carl Ward v. Nat'l Patient Account Servs
Plaintiff does not have standing under the statute to challenge the lack of sufficient identification of the debt collector, which resulted in the sending of correspondence to the wrong company, since the error does not bear a close relationship to traditional harms, and confusion is insufficient concrete injury.
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0182p-06.pdf
Sixth Circuit: Sharon Potter v. Comm'r of Soc. Sec.
Denial of class certification that doesn't reach merits but instead is a case managment order associated with a stay pendng a related appeal doesn't end the tolling of statutes of limitation for absent class members, as their reliance on the class remedy and the representatives is still objectively reasonable.
As the stay put the parties on notice of pending claims and continued reliance by absent class members was reasonable, the continued tolling serves the purpose of the statute of limitaitons and the economy of litigation.
Circuit split with Fourth flagged.
Once an uncertified class action is dismissed, tolling ceases.
Claim for equitable tolling forfeited for not being distinguished from tolling of right claim before the District Court.
Fifth Circuit: Lindsey v. Bio-Medical Applications
As employer never made working on leave a condition of employment or threatened employee with adverse consequences, lack of assignment of the employees duties to another in the interim did not interfere with the exercise of the statutorily guaranteed leave.
The distinction between actual due dates and horatory due dates presents a genuine issue for trial on the claim of pretextual basis for retaliatory action.
State law whistleblower claim would require an actual violation of state law, not merely discusion of an illegal practice.
https://www.ca5.uscourts.gov/opinions/pub/20/20-30289-CV0.pdf
Third Circuit: William Drummond v. Robinson Township
The Township's proposed regulations on the firearms practice ground trigger stricter scrutiny, since although restricting the areas for firearm practice dates to the Founding, the town's specific regulations on firearm type and nonprofit ownership of the club are novel, and merit closer scrutiny.
As the regulations steer clear of the core of the Amendment, intermediate scrutiny applies. The limitation on firearm type is only conjectural in its claim to reduce the intensity of practice, and the nonprofit ownership rule is similarly conjectural in its claim to reduce commercial intensity. As the Township bears the burden to establish the reasonableness of the remedy, the challenge to the regulations states a claim
First Circuit: US v. Patch
At 11: "The sockdolager here..."
Deft can't be denied the safe harbor of the sentencing reduction for lack of participation by mere evidence of accompanying others on supply trips; mere presence at prohibited transactions is insufficient.
First Circuit: US v. Carrasquillo-Sanchez
Contemporaneous objection to the length of the sentence imposed preserves only a claim of substantive error, not one of procedural error.
Plain procedural error in sentencing for the court to base an upward variance upon the conditions in the city of the offense without associating the particular circumstances of the deft within this context.
First Circuit: US v. Garcia-Perez
Court adequately recited mitigations, but did not sufficiently explain its upward variance. As the relevant conduct is explicitly included in the guidelines calculation, court needed to specifically distinguish the deft's situation.
Court did not abuse its discretion by imposing a substantively unreasonable sentence -- the deft has the burden to establish that the comparators who received disparate sentences were sufficiently similar.
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