First Amendment
As police officer reporting assault by another officer was neither acting as a private citizen nor speaking on a matter of public concern, her subsequent demotion doesn't violate the First Amendment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:14-3074:J:Flaum:aut:T:fnOp:N:1685011: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.
Seventh Circuit: Peter Enger v. Chicago Carriage Cab Corp.
Statutory construction/ Employment
Fares paid by taxicab riders are indirect compensation, which does not trigger state wage laws.
Unjust enrichment claim denied, as the relationship is covered by an implied contract, and state law bars unjust enrichment claims where a contract exists.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1057:J:Flaum:aut:T:fnOp:N:1685039:S:0
Fares paid by taxicab riders are indirect compensation, which does not trigger state wage laws.
Unjust enrichment claim denied, as the relationship is covered by an implied contract, and state law bars unjust enrichment claims where a contract exists.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1057:J:Flaum:aut:T:fnOp:N:1685039:S:0
Seventh Circuit: Sergio Isunza v. Loretta E. Lynch
Immigration.
Agency holding that claim was waived for not being raised earlier was not an abuse of discretion.
Substantial evidence for agency holding that, unlike some other contexts, re-entry to the USA does not begin a re-accrual of continuous presence where the earlier period of continuous presence was ended by a disqualifying conviction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1286:J:Shah:aut:T:fnOp:N:1685168:S:0
Agency holding that claim was waived for not being raised earlier was not an abuse of discretion.
Substantial evidence for agency holding that, unlike some other contexts, re-entry to the USA does not begin a re-accrual of continuous presence where the earlier period of continuous presence was ended by a disqualifying conviction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1286:J:Shah:aut:T:fnOp:N:1685168:S:0
Seventh Circuit: Delbert Heard v. Andrew Tilden
FRCP
Prior settlement agreement is not a basis for issue preclusion of subsequent claim.
Prior broad release of claim did not indemnify physicians against delay in in treatment for subsequent recurrence of chronic condition.
Where a physician is both the decisionmaker and the author of guidelines for treatment of prisoner medical conditions, an allegation against him in the former capacity states a claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1732:J:PerCuriam:aut:T:fnOp:N:1685055:S:0
Prior settlement agreement is not a basis for issue preclusion of subsequent claim.
Prior broad release of claim did not indemnify physicians against delay in in treatment for subsequent recurrence of chronic condition.
Where a physician is both the decisionmaker and the author of guidelines for treatment of prisoner medical conditions, an allegation against him in the former capacity states a claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1732:J:PerCuriam:aut:T:fnOp:N:1685055:S:0
Seventh Circuit: William I. Babchuk, M.D., P.C. v. Indiana University Health, Inc
S1983
When a state hospital suspends the privileges of a physician, there is no per se cognizable liberty or property interest imperiled by reporting the revocation to national organizations.
Where the board of a private hospital is partially appointed by the Board of Governors of a state university and the state university earns a share of the hospital's profits, the hospital is not necessarily a state actor acting under the color of state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1816:J:Posner:aut:T:fnOp:N:1684866:S:0
When a state hospital suspends the privileges of a physician, there is no per se cognizable liberty or property interest imperiled by reporting the revocation to national organizations.
Where the board of a private hospital is partially appointed by the Board of Governors of a state university and the state university earns a share of the hospital's profits, the hospital is not necessarily a state actor acting under the color of state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1816:J:Posner:aut:T:fnOp:N:1684866:S:0
Fifth Circuit: USA v. Ivan Garcia-Lopez
Fourth Amendment.
As someone might have been hiding in a hollowed-out mattress, gun found under mattress during protective sweep was properly admitted.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41392-CR0.pdf
As someone might have been hiding in a hollowed-out mattress, gun found under mattress during protective sweep was properly admitted.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41392-CR0.pdf
Fourth Circuit: Estate of Ronald Armstrong v. The Village of Pinehurst
S1983 / use of force
Qualified immunity for taser use against nonviolent resistence by arrestee (securing himself to a stop sign).
Opinion is precedential as to use of force in future, though, holding that stationary and nonviolent resistance by mentally ill arrestee not deemed a threat to others is excessive.
Concur in part: Not a 4A violation - overdeterrence.
http://www.ca4.uscourts.gov/Opinions/Published/151191.P.pdf
Qualified immunity for taser use against nonviolent resistence by arrestee (securing himself to a stop sign).
Opinion is precedential as to use of force in future, though, holding that stationary and nonviolent resistance by mentally ill arrestee not deemed a threat to others is excessive.
Concur in part: Not a 4A violation - overdeterrence.
http://www.ca4.uscourts.gov/Opinions/Published/151191.P.pdf
Fourth Circuit: Jay Bauer v. Loretta Lynch
Title VII
So long as there is an equal burden of compliance and the same level of fitness is demonstrated by the varying standards, gender-specific physical fitness guidelines do not violate Title VII.
http://www.ca4.uscourts.gov/Opinions/Published/142323.P.pdf
So long as there is an equal burden of compliance and the same level of fitness is demonstrated by the varying standards, gender-specific physical fitness guidelines do not violate Title VII.
http://www.ca4.uscourts.gov/Opinions/Published/142323.P.pdf
Fourth Circuit: Dante Askew v. HRFC, LLC
Contracts / Statutory construction
State statute merely requires that interest rates above the maximum be disclosed in the contract.
A statute of limitations that runs from discovery runs from the time that the deft knew that the interest rate was excessive under law, not from the time that deft knew of the interest rate.
Statutory notification requirement was satisfied by a letter to the consumer saying that there had been an error, and that a partial refund was due.
State statute requires refund of overpayment, not refund of all payments.
Lender's representations of nonexistent legal actions presented genuine issue of material fact.
http://www.ca4.uscourts.gov/Opinions/Published/141384.P.pdf
State statute merely requires that interest rates above the maximum be disclosed in the contract.
A statute of limitations that runs from discovery runs from the time that the deft knew that the interest rate was excessive under law, not from the time that deft knew of the interest rate.
Statutory notification requirement was satisfied by a letter to the consumer saying that there had been an error, and that a partial refund was due.
State statute requires refund of overpayment, not refund of all payments.
Lender's representations of nonexistent legal actions presented genuine issue of material fact.
http://www.ca4.uscourts.gov/Opinions/Published/141384.P.pdf
Third Circuit: Sandra Connelly v. Lane Construction Corp
FRCP, Title VII
As the discriminatory motive might ultimately either be a determining or a motivating factor, trial court erred in dismissal of the claim for lack of apparent causation in the pleading.
http://www2.ca3.uscourts.gov/opinarch/143792p.pdf
As the discriminatory motive might ultimately either be a determining or a motivating factor, trial court erred in dismissal of the claim for lack of apparent causation in the pleading.
http://www2.ca3.uscourts.gov/opinarch/143792p.pdf
Eleventh Circuit: In re: Kendall Starks
ACCA/ Johnson
Neither the Supreme Court holding that the residual clause of the ACCA was impermissibly vague nor the Supreme Court holding that a certain state offense was not a valid predicate (nor the two combined) were changes in the substantive law to be made retroactively applicable to cases on collateral review.
http://media.ca11.uscourts.gov/opinions/pub/files/201515493.pdf
Neither the Supreme Court holding that the residual clause of the ACCA was impermissibly vague nor the Supreme Court holding that a certain state offense was not a valid predicate (nor the two combined) were changes in the substantive law to be made retroactively applicable to cases on collateral review.
http://media.ca11.uscourts.gov/opinions/pub/files/201515493.pdf
Eleventh Circuit: USA v. Harlan Salmona
Plea Agreements
District court has Mandamus jurisdiction, not FRCrimP jurisdiction, over motions to enforce a plea deal.
Where a plea agreement's term of rescission allows only the revocation of use immunity, a material breach of the agreement prevents a court's subsequent enforcement under Mandamus of other guarantees.
Concurrence: Material breach justifies total rescission.
http://media.ca11.uscourts.gov/opinions/pub/files/201512569.pdf
District court has Mandamus jurisdiction, not FRCrimP jurisdiction, over motions to enforce a plea deal.
Where a plea agreement's term of rescission allows only the revocation of use immunity, a material breach of the agreement prevents a court's subsequent enforcement under Mandamus of other guarantees.
Concurrence: Material breach justifies total rescission.
http://media.ca11.uscourts.gov/opinions/pub/files/201512569.pdf
Eleventh Circuit: Yasmick Jeune v. U.S. Attorney General
Immigration
Generalized assertions of discrimination did not administratively exhaust specific claims of trauma.
As agency's classification of petitioner includes the present claim in addition to the earlier claim, both have been refuted.
Agency's consideration of internal relocation need not be geographically specific.
http://media.ca11.uscourts.gov/opinions/pub/files/201311683.pdf
Generalized assertions of discrimination did not administratively exhaust specific claims of trauma.
As agency's classification of petitioner includes the present claim in addition to the earlier claim, both have been refuted.
Agency's consideration of internal relocation need not be geographically specific.
http://media.ca11.uscourts.gov/opinions/pub/files/201311683.pdf
Ninth Circuit: Leslie Gladstone v. Bancorp
Bankruptcy
Although the surrender value of the life insurance policies was nil, a pre-petition viatical transfer for value created value that should have been disclosed in bankruptcy proceedings.
Trustee's avoidance attempt is timely, as fraud equitably tolled the statute of limitations.
Trustee should have been given leave to amend claim.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/13-55773.pdf
Although the surrender value of the life insurance policies was nil, a pre-petition viatical transfer for value created value that should have been disclosed in bankruptcy proceedings.
Trustee's avoidance attempt is timely, as fraud equitably tolled the statute of limitations.
Trustee should have been given leave to amend claim.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/13-55773.pdf
Ninth Circuit: Eden Place v. Sholem Perl
Bankruptcy / property
As the bankruptcy proceeding is final with respect to the property at issue, interlocutory appeal has jurisdiction.
A tenant's remaining within a premises during an a unlawful detainer action does not create an equitable interest in the property, as the court is ruling on the supervening question of better title.
Dissent: Insufficiently final for jurisdiction.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/14-60039.pdf
As the bankruptcy proceeding is final with respect to the property at issue, interlocutory appeal has jurisdiction.
A tenant's remaining within a premises during an a unlawful detainer action does not create an equitable interest in the property, as the court is ruling on the supervening question of better title.
Dissent: Insufficiently final for jurisdiction.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/14-60039.pdf
Eighth Circuit: Grasso Enterprises v. Express Scripts
ERISA / Injunctions
Issuance of a preliminary injunction mandating compliance with a plan interpretation is not a remedy available to plaintiffs under ERISA.
Pharmacies do not have direct standing under ERISA.
http://media.ca8.uscourts.gov/opndir/16/01/151578P.pdf
Issuance of a preliminary injunction mandating compliance with a plan interpretation is not a remedy available to plaintiffs under ERISA.
Pharmacies do not have direct standing under ERISA.
http://media.ca8.uscourts.gov/opndir/16/01/151578P.pdf
Eighth Circuit: United States v. Aemonn Alexander
ACCA predicates
State attempted second degree assault s a valid predicate, as it requires a substantial step and intent to cause physical harm.
http://media.ca8.uscourts.gov/opndir/16/01/151210P.pdf
State attempted second degree assault s a valid predicate, as it requires a substantial step and intent to cause physical harm.
http://media.ca8.uscourts.gov/opndir/16/01/151210P.pdf
Seventh Circuit: Tao Chen v. Loretta E. Lynch
Immigration.
Sufficient evidence for IJ's adverse credibility findings.
As petitioner was protesting the destruction of his property, his was an economic, not political protest, making him ineligible for asylum.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1831:J:Kanne:aut:T:fnOp:N:1684359:S:0
Seventh Circuit: Frederick Grede v. Bank of New York
Bankruptcy/fraud
Given the paucity of the banks assets, the creditor bank had sufficient inquiry notice of the fact that funds on deposit were being used for collateral and therefore cannot assert a secured claim against the Trustee's characterization of the transaction as pre-petition avoidable transfer.
As only the lien on the funds is retained, no impermissible double recovery by the Trustee, and no claim under the Code for assets transferred in good faith.
To trigger equitable subordination, the creditor must have known of the fraud, which is a higher bar than inquiry notice -- remand.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1039:J:Posner:aut:T:fnOp:N:1684393:S:0
Given the paucity of the banks assets, the creditor bank had sufficient inquiry notice of the fact that funds on deposit were being used for collateral and therefore cannot assert a secured claim against the Trustee's characterization of the transaction as pre-petition avoidable transfer.
As only the lien on the funds is retained, no impermissible double recovery by the Trustee, and no claim under the Code for assets transferred in good faith.
To trigger equitable subordination, the creditor must have known of the fraud, which is a higher bar than inquiry notice -- remand.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1039:J:Posner:aut:T:fnOp:N:1684393:S:0
Subscribe to:
Posts (Atom)