Tenth:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563811.pdf
DC:
Fed Circ
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Tenth Circuit: Animal Legal Defense Fund, et al. v. Kelly, et al.
Since the Act prohibits making false statements in an attemp to gain consent to the control of property with the intent to damage the interests of the facility, its viewpoint discrimination requires strict scrutiny.
Not all attempts to damage the enterprise of an animal-processing facility are harms that would merit decreased First Amendment protections.
Under circuit precedent, the photographing of animals or taking notes about habitat is creating speech; the law's criminalization of this when done for the purpose of injuring the enterprise is similarly viewpoint discriminatory. The state can't limit the scope of its prohiitions due to the favor or disfavor of the message.
The same holds for trespassing with the intent to harm the enterprise. Although there is no right to trespass, false speech is an element of the offense through the requirement of effective consent.
DISSENT
Better remedy would be severence of deception from the intent requirement.
Regulating false statements of fact that cause harm is constitutional.
Right to choose who enters one's property is fundamental.
The law merely distinguishes harmful trespass from trespass without the intent to harm.
The actual speech here isn't implicated, but rather the intent behind the speech.
Private landowners generally have the right to restrict photography on their premises.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563866.pdf
Ninth Circuit: Ford v. Peery
DISSENT FROM DENIAL OF REHEARING EN BANC
Panel inappropriately hypothetically considered the law as misstated by the prosecutor under AEDPA deference, rather than considering the state court's judgment of the prejudice caused by the statement.
Dicta on questions that are germane to the case and resolved after reasoned determination in a published opinion are binding in the circuit. This has proved problematic and some have said that it's in tension with Article III.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf
Ninth Circuit: Marroquin v. Garland
Given the identical punishments, the structure of the statute tends to suggest that the two proscribed acts are two means of committing the same offense, rather than two distinct offenses, and no caselaw or charging documents in the present case indicate a certainty to the contrary. Intervening higher authority allows the present panel to overrule a circuit decision to the contrary that was based entirely on the statute's phasing in the disjunctive. As the offense is more broad than the generic crime, the law is not a valid immigration predicate aggravated felony.
DISSENT:
Under the state's law, principals and accessories after the fact are mutually exclusive roles that inherently require different elements of proof. Charging document establishes that petitioner was convicted as a principal.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-72922.pdf
Ninth Circuit: Stiudent A v. San Francisco Unified School District
Although the plaintiffs claim to be pursuing a systemic claim addressing widespread shortcomings, they aren't challenging a policy or practice of general applicability, but rather pointing out several instances in which the system didn't work correctly; administrative exhaustion is therefore required in order to develop the administrative record and give the state a chance to remedy the situation.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/20-15386.pdf
Ninth Circuit: Sura v. Garland
Evn absent evidence of their credibility, an Interpol Red Notice and a foreign arrest warrant for a serious nonpolitical crime can, in the light of concessions made by the petitioner, constitute serious reason to believe that the petitioner committed the crimes referenced, and therefore a basis for shifting the presumption when applying for cancellation of immigration removal.
Even absent a formal adverse ccredibility decision, the suspicious timing of the petitioner's departure from El Salvador, and the IJ's determination of lack of specificity is sufficient evidence to establish that the petitioner did not prove by a preponderance that there wasn't serious reason to believe that he had committed the crimes.
Withholding of removal under the torture convention also sufficiently supported, given the unlikeliness of the foreign government's consent or acquiescence in any future torture.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-71839.pdf
Ninth Circuit: Herring Networks v. Maddow
As precedent compels that the state-law right to preemptive dismissal of spurious defamation claims be treated as a dismissal for not stating a claim if made on a matter of law and as a summary judgment if made on a fact-dependent determination, the court was powerless to look beyond the pleadings to the additional evidence provided by the non-movant when adjudicating it as a motion for preemptive dismissal on a matter of law.
A reasonable viewer would discern from the tenor of the show that the only fact being reported by the television host was the content of the news story being discussed, and that the rest was opinon and commentary. By disclosing the specific factual basis of the statment, the host reveals the rest to be commentary and hyperbole.
No abuse of discretion in denying leave to amend, since it was never requested, and would have proved futile anyway.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-55579.pdf
Ninth Circuit: Allison v. Tinder
(Rakoff of SDNY, J.)
The court's assessment of the plaintiffs' case deprecated a holding in which the plaintiff class members were also putative members, and in which the holding favorable to their interests was law of the case, in which they would release their claims by the present settlement.
Given this diminishment of the plaintiffs' claim, the fact that the value of the injunctive relief to the class was unsupported, the fact that many class members were no longer site members or might not seek relief, the existence of a clear-sailing provision and the substantial amount of plaintiffs' attorneys' fees meant that the court abused its discretion in approving the settlement.
The approval of the attorneys fees was an independent abuse of discretion, since it was calculated as a percentage of the sum of the value of injunctive relief that should have formed no part of the calculation and an estimated cash payment that assumed a full claim of the award.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-55807.pdf
Ninth Circuit: Sharma v. Garland
As there was only one session of physical beatings, the single detention was only 18-19 hours, the threats were relatively few, and the instruction by the local police to his customers that they shouldn't repay their loans was offset by the fact that the petitioner wasn't killed and was free to seek other employment, there was substantial evidence for the Bureau's determination that past persecution was not proved.
Similarly, the Bureau's determination of insufficient evidence to show a reasonable fear of future persecution is supported by the decades since petitioner left the country, his family's continued residence there, and petitioner's past international travel after which he was able safely to return to his home country.
The determination that past harms didn't rise to the level of persecution necessarily entails the premise that the past harms didn't amount to torture.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-70238.pdf
Ninth Circuit: USA v. Amauje Jason Ferguson
Magistrate Judge's omission of query about compulsion from the plea acceptance colloqouy was insufficient plain error for reversal, since, absent a claim that compliance with the rule would have resulted in a different plea, there was no effect on substantial rights, and the text of the rule deems errors that don't affect substantial rights to be harmless.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-10228.pdf
Eighth Circuit: Leroy Leftwich v. County of Dakota
Absent a showing of delioberate indifference or subjective awareness of risk to the detained arrestee, there is no issue for trial on the S1983 claim.
Absent a policy of mental health screening, using personal assessment to answer the mental health questions on the intake form was a discretionary act, rather than ministerial in nature, as was the staff's personal meeting with the arrestee. County's decision to have a formal mental health assessment 72 hours later was policymaking, not operational, and therefore incurred statutory public entity immunity.
Court did not abuse its discretion in denying aleave to amend to a party who did not notice the depositions witnesses who could provide the information that ws the basis of the motion to amend prior to the last date to amend the claim.
http://media.ca8.uscourts.gov/opndir/21/08/201821P.pdf
Eighth Circuit: Designworks Homes, Inc. v. Thomson Sailors Homes, L.L.C
Given the differences in their designs, triangular atria alone are insufficient to establish the identity of total concept and feel necessary for copyright infringement; no reasonable minds could differ on whether there was a substantial similarity of expression in the designs.
Although the court erred in saying that attorneys fees awards were the rule rather than the excpetion, it did not abuse its discretion in the actual award of fees in this case.
Seventh Circuit: Thomas Prose v. Molina Healthcare of Illinois,
Evidence as to where, how, and to whom allegedly false representations were made can state a claim under the statute for fraudulent claims against the government.
Evidence as to the who, what, where, when, and how can state a claim for fraudulent inducement in contractual negotiations; a relator who is not a party to the negotiations might be unable to provide details of the negotiations.
Implied false certification is a species of fraud, and therefore subject to heightened pleading.
Continuing to bill the set capitation after ending the subcontracting that provided enhanced services states a claim for implied false certification under the Act, since the services were a material term of the deal.
DISSENT (CJ)
Mere request for payment from the government while not materially complying with a contractual term is insufficient to state a claim under the Act, given the Act's extreme remedies, including treble damages.
Contract was a contract to provide beneficiaries with access to needed services, not needed services themselves.
These circumstances wouldn't state a claim, even absent heightened pleading. There was no express factual falsity; the omission was an implied falsity. Precedent requires that a request for payment also make specific representations in order to be actionable. Suggesting that noncompliance is material means that any noncompliance is material.
Seventh Circuit: Jerry Smith, Jr. v. Melvin Finkley
Given issues of material fact about whether plaintiff was surrendering to police or lunging for gun and whether plaintiff was an immediate threat to safety of officers or others, court has no jursdiction to decide either aspect of the issue of qualified immunity on interlocutory appeal. The fact that the plaintiff wasn't combative or armed complicates the application of relevant precedent that asks if the right was clearly established
An appeal of the sufficiency of the evidence for the denial of quualified immunity can't be decided on interlocutory review.
DISSENT (CJ)
Some of the benefit of qualified immunity is lost if the case is allowed to go to trial; the question is conceptually separate from the underlying claim. The evidence establishes the historical facts of this situation, and the appellate courts can resolve the issues of law arising from those facts.
Seventh Circuit: Blake Conyers v. City of Chicago
Claim arising from the destruction of arrestees' property after a set period sounds in 14A Due Process or 5A Takings, not under the Fourth Amendment.
While the property was taken under the police power rather than eminent domain, federal constitutional limits remain on the disposal of the items. In this context, a thirty day holding period with adequate notice suffices for the purposes of the Fifth Amendment.
Screenshot with evidentiary foundation from the head of department suffices to establish that the website was functioning during the relevant period.
Plaintiffs' burden to prove that they lacked access to the internet in order to discover the relevant notice requires that they establish why the specific procedures of mediated inmate internet reference access were insufficient.
Seventh Circuit: Marvin Carter v. Chris Buesgen
Where a federal court dismisses without prejudice in order to allow exhausion of pending direct and Habeas claims in the state system while determining that there has been inordinate delay in those claims, the futility of either amendment or recourse to the state system can make the dismissal without prejudice sufficiently final for appellate jurisdiction.
Extreme delay in the state system can excuse the federal statutory requirement that state claims first be exhausted.
Sixth Circuit: Henry Kaplan v. Univ. of Louisville
Ex Parte Young isn't available as an exception to the state university's sovereign immunity, as the university is not a state official, and administrators are being sued in their personal capacities here.
Absent statute or contract, there is no property interest in the appointment to department chair if that chair does not itself lead to a form of tenure.
A dismissed professor can have received adequate due process even if the reviewing committee declined to recommend dismissal.
Placement on paid leave prior to dismissal proceedings was not a deprivaiton of due process, given the evidence in the record and the sufficiency of the proceedings.
Plaintiff must have exhausted 14A liberty interest claim in reputation by requesting a name-clearign hearing; the university was under no obligation to provide for it in its procedures, its refusal to toll the statute of limitations for the present suit did not preclude a paralell proceeding, and the present suit is not a sufficient proxy.
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0187p-06.pdf
Second Circuit: Jian Liang v. Garland
Petitioner's omission of the manner in which he discovered that he was on a blacklist was not a minor or extraneous detail, and the nationalization of the persecution implied by the blacklist was central to the claim; the late disclosure cannot be excused by saying that the petitioner and witnesses considered it a minor detail.
Agency was under no obligation to continue the proceedings to discover corroborating evidence. Adverse credibility determination based on the belief that the detail was a fabrication is well supported by the record.
Insufficient evidence of country-wide persecution of people of petitioner's faith.
First Circuit: US v. Saccoccia
Pandemic disease does not transform aggregated minor health concerns into the extraordinary and compelling justificaiton for early release required by statute.
Actual diagnosis, rather than the presence of diagnostic markers indicating likelihood but not certainty, is required in a petition for early release on compassionate grounds.
While material interference by prison administration or stonewalling of medical testing can be the basis of a claim of extraordinary and compelling justification, the record here does not support such a claim.
District Court's averral that it was exercising its broad discretion in denying early release given the balance of the factors was sufficient; there was no need to mechanically review each of the sentencing factors.
First Circuit: Ass'n Hosp. del Maestro, Inc. v. Becerra
Agencies can exercise discretion only in places of ambiguity or silence; they are unable to amend a clear statutory mandate that seems at odds with the purposes of the legislation. Agency did not err, and the rulemaking did not run afoul of the APA.
Agency's implementation according to statute did not offend Equal Protection; proof of discriminatory of intent would also be needed.
Mandate requiring extension of policy in the same manner and to the extent that it applies to existing facilities mans that the same methodology should be implemented to the same extent, not that the facilities should be funded to the same extent.
http://media.ca1.uscourts.gov/pdf.opinions/19-1475P-01A.pdf
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