Erratum.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:14-2912:J:PerCuriam:aut:T:orCo:N:1677486:S:0
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.
Sixth Circuit: In re: Windy Watkins
Sentencing -- Johnson's retroactivity on collateral review.
Second/successive Habeas petition challenging sentence imposed under ACCA residual clause permitted, as Supreme Court ruling holding the clause unconstitutionally vague was explicitly made retroactive for cases on collateral review.
http://www.ca6.uscourts.gov/opinions.pdf/15a0295p-06.pdf
Second/successive Habeas petition challenging sentence imposed under ACCA residual clause permitted, as Supreme Court ruling holding the clause unconstitutionally vague was explicitly made retroactive for cases on collateral review.
http://www.ca6.uscourts.gov/opinions.pdf/15a0295p-06.pdf
Fifth Circuit: Helen Allen, et al v. C & H Distributors, L.L.C.,
Judicial estoppel & tort.
A party is judicially estopped from bringing a post-petition injury claim if they do not notify the Trustee of the claim.
A subsequent filing of the suit by a Trustee is not governed by the statute of limitations.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30330-CV0.pdf
A party is judicially estopped from bringing a post-petition injury claim if they do not notify the Trustee of the claim.
A subsequent filing of the suit by a Trustee is not governed by the statute of limitations.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30330-CV0.pdf
Fifth Circuit: USA v. Mark Hebert
Sentencing, 5A, 6A, 8A.
92 year sentence for Bank Fraud under 70K upheld, due to murder established by preponderance in sentencing.
No clear error in the finding.
After plea deal, gov't filed second PSR, cross-referencing the murder.
Cross-reference to state law murder not substantively unreasonable, as the sentence could have been an independent upward variance in the primary offense.
No Fifth Amendment Due Process, Eighth Amendment, or Sixth Amendment violation, as sentence was within statutory limits of the primary offense.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31405-CR0.pdf
92 year sentence for Bank Fraud under 70K upheld, due to murder established by preponderance in sentencing.
No clear error in the finding.
After plea deal, gov't filed second PSR, cross-referencing the murder.
Cross-reference to state law murder not substantively unreasonable, as the sentence could have been an independent upward variance in the primary offense.
No Fifth Amendment Due Process, Eighth Amendment, or Sixth Amendment violation, as sentence was within statutory limits of the primary offense.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31405-CR0.pdf
Fourth Circuit: Samuel Calderon v. GEICO General Insurance Company
FLSA for insurance investigators.
An employee who provides investigative services for a class of employees who are considered exempt on a case by case basis is not him or herself necessarily exempt. Relevant precedent in the public sector applies to the private sector as well.
Executives decision to the contrary was not willful and reckless, as they acted in opposition to legal precedent that was, according to their predictions, subsequently reversed.
Court correctly construed the contract as straight-time for hours worked.
Error under statute not to award prejudgment interest.
http://www.ca4.uscourts.gov/Opinions/Published/142111.P.pdf
An employee who provides investigative services for a class of employees who are considered exempt on a case by case basis is not him or herself necessarily exempt. Relevant precedent in the public sector applies to the private sector as well.
Executives decision to the contrary was not willful and reckless, as they acted in opposition to legal precedent that was, according to their predictions, subsequently reversed.
Court correctly construed the contract as straight-time for hours worked.
Error under statute not to award prejudgment interest.
http://www.ca4.uscourts.gov/Opinions/Published/142111.P.pdf
First Circuit: Limoliner, Inc. v. Dattco, Inc.
Contract interpretation, consumer protection - bus repairs.
Give that the analogous regulation relied upon is in the consumer protection portion of the code and the law in question is in the motor vehicle portion of the code, question on applicability of the law to businesses to business transactions certified to Massachusetts SJC.
Party's spoken stipulation that the work should be done "as soon as possible" is not a binding contractual term of performance.
No clear error in magistrate's holding that that work was timely performed.
Damages affirmed.
http://media.ca1.uscourts.gov/pdf.opinions/14-2188P-01A.pdf
Give that the analogous regulation relied upon is in the consumer protection portion of the code and the law in question is in the motor vehicle portion of the code, question on applicability of the law to businesses to business transactions certified to Massachusetts SJC.
Party's spoken stipulation that the work should be done "as soon as possible" is not a binding contractual term of performance.
No clear error in magistrate's holding that that work was timely performed.
Damages affirmed.
http://media.ca1.uscourts.gov/pdf.opinions/14-2188P-01A.pdf
First Circuit: Castaneda v. Souza
Immigration - AG's detention mandate. Statutory interpretation, En banc, 107 pp.
3-1-3 split. District courts decision requiring bond hearings for aliens affirmed, in line with the first opinion, viz:
(3)
When an antecedent portion of a statute refers to an entity later described in the statute, it is assumed that the full modifier is incorporated in the later reference, i.e., a statute referring to an alien as described above refers to the type of alien described above, and not aliens generally, some of whom fall into the category described above, and some of whom don't.
Chevron analysis, TKO'd on step one - agency adjudication deserves no deference, as the statute isn't ambiguous.
Additionally, as agency only decided whether statute's requirements attach on release or after release, there is no agency guidance on relative duration of release.
Loss-of-authority canon.
(1)
Concurrence in J.
14A bars indefinite detention without access to bail or bond of anybody in the US. Yick Wo.
(3)
Dissent
Statutory interpretation - the adverbial modifier in the previous clause shouldn't attach to the second clause.
Circuit split flagged.
Legislative intent, surplussage.
Where a statutory mandate is not implemented, a second clause referring to the entities in the mandate continues to describe them as as an independent referent, though not acted upon by the terms of the previous mandate.
Constitutional avoidance.
http://media.ca1.uscourts.gov/pdf.opinions/13-1994P2-01A.pdf
Federal Circuit: Personalized Media v. Rovi Guides
Trademarks - Must Read.
En Banc.
Lanham Act provision barring registration of disparaging marks TKO'd by First Amendment under both strict and intermediate scrutiny.
Concurrence: Also void for vagueness.
C/D: Constitutional as to commercial speech, unconstitutional as to political speech. [NB case at bar is an Asian-American band wanting to trademark the name "The Slants".]
Dissent: Nope
Other Dissent: Nope.
110 Pages.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1203.Opinion.12-18-2015.1.PDF
En Banc.
Lanham Act provision barring registration of disparaging marks TKO'd by First Amendment under both strict and intermediate scrutiny.
Concurrence: Also void for vagueness.
C/D: Constitutional as to commercial speech, unconstitutional as to political speech. [NB case at bar is an Asian-American band wanting to trademark the name "The Slants".]
Dissent: Nope
Other Dissent: Nope.
110 Pages.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1203.Opinion.12-18-2015.1.PDF
Eleventh Circuit: USA v. Edgar Alexander Pirela Pirela
Immigration, Statutory construction
A material misstatement of fact in an application for a non-immigrant visa constitutes an unlawful procurement of that visa, regardless of whether the fact constituted a statutory bar to the granting of the visa.
http://media.ca11.uscourts.gov/opinions/pub/files/201413767.pdf
A material misstatement of fact in an application for a non-immigrant visa constitutes an unlawful procurement of that visa, regardless of whether the fact constituted a statutory bar to the granting of the visa.
http://media.ca11.uscourts.gov/opinions/pub/files/201413767.pdf
Tenth Circuit: Birch v. Polaris Industries
Torts. standards of appellate review.
Appellant waived challenge to clear error review of magistrate's holdings on matters not explicitly dispositive when counsel explicitly accepted the standard of review in the District Court.
No abuse of discretion in denial of motion to amend the claim when nine months lapse after first notice and four months lapse after confirming evidence.
No abuse of discretion in denial of motion for discovery where the discovery factors are not clearly set for th in the affidavit.
No abuse of discretion in summary judgment where the unamended complaint doesn't state a claim.
https://www.ca10.uscourts.gov/opinions/15/15-4066.pdf
Appellant waived challenge to clear error review of magistrate's holdings on matters not explicitly dispositive when counsel explicitly accepted the standard of review in the District Court.
No abuse of discretion in denial of motion to amend the claim when nine months lapse after first notice and four months lapse after confirming evidence.
No abuse of discretion in denial of motion for discovery where the discovery factors are not clearly set for th in the affidavit.
No abuse of discretion in summary judgment where the unamended complaint doesn't state a claim.
https://www.ca10.uscourts.gov/opinions/15/15-4066.pdf
Ninth Circuit: USA v. Douglas Decinces
Immigration/Administrative
Cheveron deference to agency adjudication holding that a federal law deeming South Korean citizenship not a bar to refugee status does not preclude a finding that the petitioner resettled in South Korea.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/11-73587.pdf
Cheveron deference to agency adjudication holding that a federal law deeming South Korean citizenship not a bar to refugee status does not preclude a finding that the petitioner resettled in South Korea.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/11-73587.pdf
Ninth Circuit: Pacific Radiation Oncology v. The Queen's Medical Center
Injunctions - Important one.
There must be a nexus between the harm alleged in the application for injunction and the claims in the underlying action.
An injunction seeking to bar release of patient records based on federal statute and the state constitution cannot be considered in a fair trade practices case. It's a discovery matter.
"Pled" as past tense in the lede.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/14-17050.pdf
There must be a nexus between the harm alleged in the application for injunction and the claims in the underlying action.
An injunction seeking to bar release of patient records based on federal statute and the state constitution cannot be considered in a fair trade practices case. It's a discovery matter.
"Pled" as past tense in the lede.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/14-17050.pdf
Ninth Circuit: Sung Jang v. Loretta E. Lynch
Securities - Interlocutory appeals
Government can appeal interlocutory evidentiary rulings, however tentative.
Evidence of prior bad acts in for common scheme and lack of coincidence - also held on de novo review to be more probative than prejudicial.
Court does not have pendent jurisdiction over appeal of motion to dismiss when adjudicating an interlocutory evidentiary appeal.
Court does not have jurisdiction over double jeopardy claim based in multiplicious indictment by means of the collateral order doctrine, as the issue can be raised on appeal.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/15-50033.pdf
Government can appeal interlocutory evidentiary rulings, however tentative.
Evidence of prior bad acts in for common scheme and lack of coincidence - also held on de novo review to be more probative than prejudicial.
Court does not have pendent jurisdiction over appeal of motion to dismiss when adjudicating an interlocutory evidentiary appeal.
Court does not have jurisdiction over double jeopardy claim based in multiplicious indictment by means of the collateral order doctrine, as the issue can be raised on appeal.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/15-50033.pdf
Eighth Circuit: United States v. Stevenson Harrison
Hearsay in parole revocation hearing.
Where the District Court does not explicitly permit hearsay evidence at a parole revocation hearing, the appellate court can conduct a de novo review on the question if the factual record is sufficiently developed.
Where the costs of producing evidence at a parole revocation hearing are unduly burdensome and impractical, no abuse of discretion in admitting parole officer testimony and police reports.
Virginia statute of Malicious Bodily Injury to Law Enforcement Officer is categorically a Grade A/ violent offense.
Dissent - FRCrimP requires specific admission of hearsay as hearsay. Parole officer testimony derived from reading the police reports. Deft's corroborating statements limited to attempting to run away, and being grabbed by police officers, who subsequently ripped his shirt and fell down a flight of stairs. Subsequent alleged fracas unconfirmed.
http://media.ca8.uscourts.gov/opndir/15/12/151246P.pdf
Where the District Court does not explicitly permit hearsay evidence at a parole revocation hearing, the appellate court can conduct a de novo review on the question if the factual record is sufficiently developed.
Where the costs of producing evidence at a parole revocation hearing are unduly burdensome and impractical, no abuse of discretion in admitting parole officer testimony and police reports.
Virginia statute of Malicious Bodily Injury to Law Enforcement Officer is categorically a Grade A/ violent offense.
Dissent - FRCrimP requires specific admission of hearsay as hearsay. Parole officer testimony derived from reading the police reports. Deft's corroborating statements limited to attempting to run away, and being grabbed by police officers, who subsequently ripped his shirt and fell down a flight of stairs. Subsequent alleged fracas unconfirmed.
http://media.ca8.uscourts.gov/opndir/15/12/151246P.pdf
Eighth Circuit: Stuart Wright v. Sean Franklin
Bivvens - Taser-aided arrest of the wrong guy during a league basketball game.
Footnote in motion saying that an argument isn't made doesn't operate as waiver - de novo review on the question of whether there was a clearly-established right.
Qualified immunity on the taser shock, as it was not yet clearly established in the Circuit that a person thought to be possibly armed and dangerous should not be tasered if they were nonviolent and not attempting to flee.
Basis for the detention subsequently raised need not have been thought about at the time - objective reasonableness controls.
20 minute detention of wrong person after having determined them to be the wrong person is a minimal intrusion on the liberty interest, and does not justify a Bivvens claim.
http://media.ca8.uscourts.gov/opndir/15/12/143606P.pdf
Footnote in motion saying that an argument isn't made doesn't operate as waiver - de novo review on the question of whether there was a clearly-established right.
Qualified immunity on the taser shock, as it was not yet clearly established in the Circuit that a person thought to be possibly armed and dangerous should not be tasered if they were nonviolent and not attempting to flee.
Basis for the detention subsequently raised need not have been thought about at the time - objective reasonableness controls.
20 minute detention of wrong person after having determined them to be the wrong person is a minimal intrusion on the liberty interest, and does not justify a Bivvens claim.
http://media.ca8.uscourts.gov/opndir/15/12/143606P.pdf
Eighth Circuit: Sintia Rodriguez-Mercado v. Loretta E. Lynch
Immigration.
Adverse findings of credibility as to specific events not overwhelmed by establishment of general situation of country of origin.
Voluntary departure not preserved on appeal. Agency could still do it, though.
http://media.ca8.uscourts.gov/opndir/15/12/143559P.pdf
Adverse findings of credibility as to specific events not overwhelmed by establishment of general situation of country of origin.
Voluntary departure not preserved on appeal. Agency could still do it, though.
http://media.ca8.uscourts.gov/opndir/15/12/143559P.pdf
Seventh Circuit: Julia Egan v. David Pineda
Posner - Civil Practice / Ethics
Six month delay in withdrawing an element of a complaint repudiated by plaintiff in deposition justified 5K sanction to counsel.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-2011:J:Posner:aut:T:fnOp:N:1676944:S:0
Six month delay in withdrawing an element of a complaint repudiated by plaintiff in deposition justified 5K sanction to counsel.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-2011:J:Posner:aut:T:fnOp:N:1676944:S:0
Seventh Circuit: Roy Mitchell v. Edward Wall
Posner - Mootness & Vacatur.
A party waives the right to vacatur of a lower court's denial of a preliminary injunction by not requesting it upon appeal in a case that has become moot. Circuit practice is not to typically vacate lower court holding in this situation. Although the decision below was adverse to petitioner, it was not preclusive as to the issuance of a permanent injunction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1881:J:Posner:aut:T:fnOp:N:1676912:S:0
A party waives the right to vacatur of a lower court's denial of a preliminary injunction by not requesting it upon appeal in a case that has become moot. Circuit practice is not to typically vacate lower court holding in this situation. Although the decision below was adverse to petitioner, it was not preclusive as to the issuance of a permanent injunction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1881:J:Posner:aut:T:fnOp:N:1676912:S:0
Seventh Circuit: USA v. Bryce Woods
Posner - Sentencing.
Mitigation claim that the deft had engaged in subsequent legitimate business consulting borders on the frivolous, and need not have been specifically addressed in sentencing findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1495:J:Posner:aut:T:fnOp:N:1676922:S:0
Mitigation claim that the deft had engaged in subsequent legitimate business consulting borders on the frivolous, and need not have been specifically addressed in sentencing findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1495:J:Posner:aut:T:fnOp:N:1676922:S:0
Subscribe to:
Posts (Atom)