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.

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/1/doc/18-2707_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/1/hilite/

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.  

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/doc/18-1697_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/hilite/

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.

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/3/doc/20-4012_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/3/hilite/

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: Segarra Miranda v. Banco Popular de Puerto Rico

 

Erratum.

http://media.ca1.uscourts.gov/pdf.opinions/20-9006E-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

Hiatus now

 

Returning to the academic and job search dojo for a bit.  Good to get a couple weeks (234 decisions) of batting practice in.  Still a going concern, and my goal is to accomplish the summaries in one or two hours every weekday morning.  

But now, there's a large stack of books on the desk.  Cheers.

CB

Federal Circuit: In Re The Board of Trustees

 

Claim is ineligible for patent, because it recites abstract mathematical concepts without practical technological improvements beyond increasing statistical accuracy, and, taken as a whole, is embodied as well-known, routine and conventional actions of performing an algorithm on a computer.

(Perhaps.  We don't know many things, but we especially don't know Patents.)

 In Re The Board of Trustees

Federal Circuit: Vollono v. McDonough

 

As the statutory bar to receiving duplicate funding doesn't look to current eligibility status, a veteran who received funding through one program and therefore chose to forgo another funding source can't later seek to receive the second funding after the eligibility for the first was determined to be erroneous, though non-recoupable.

Vollono v. McDonough

Eleventh Circuit: Travis D. Turner v. Secretary, Department of Corrections, et al.

Habeas petitioner filing after the statutory cutoff on a form filing where the untimeliness was facially apparent had an opportunity to challenge the propriety of the court's taking judicial notice of the dates on the state's docket for their convictions by having leave to reopen at the district court level to argue error, equitable tolling, or actual innocence.  Court did not abuse its discretion in initially dismissing the petition as untimely without a reply brief or magistrate's review.

 

Travis D. Turner v. Secretary, Department of Corrections, et al.

Ninth Circuit: East Bay Sanctuary Covenant v. Joseph Biden

 

Amended opinion, Concurrences and Dissents from Denial of En Banc.

CONCURRING WITH DENIAL OF EN BANC:

Sufficient injury to the organization for standing.

Substance and revision of opinion congruent with usual en banc process.

DISSENT FROM DENIAL OF EN BANC:

Court is not a Platonic Guardian of the Constitution and laws.

The organizations did not sustain sufficient injury for standing, since the statute doesn't make it more difficult to provide legal services to immigrants.  Redirection of resources and diminished client pool are insufficient.

Generally, the statute holds that anyone can apply for asylum, but gives the Executive discretion as to whether to grant it.  Panel conflates the right to apply with the right to receive.

DISSENT FROM DENIAL OF EN BANC:

Published motions panel opinions are precedential, and make law of the case.  

East Bay Sanctuary Covenant v. Joseph Biden

Ninth Circuit: George Young, Jr. v. State of Hawaii

 

(En Banc, 215 pp.)

Pro se plaintiff's claim that never explicitly makes the as-applied challenge is correctly read as a facial challenge, since the briefing and argument was conducted with the assistance of counsel.

(Extensive list of English statutes and edicts made against the carrying of (fire)arms from the 14c. onward.)

Colonial history suggests early American acquiescence to firearms limitations outlined in the Statute of Northampton.

Early state enactments generally held that firearms small enough to be concealed could be kept from the public square.

State courts & treatises inconclusive, but generally recognize the government's power to regulate.

The government may regulate, and even prohibit, in public places the open carrying of small arms or arms capable of being concealed.  This does not impede the protection of homes or businesses.  It is peculiarly the duty of the state to defend the public square.  The states assumed primary responsibility for maintaining the king's peace.  

Exceptions to regulations were made for persons, places.  Surety operated not as a minor penalty but as a strong discincentive to carry arms.

That handguns may be used for defense does not change their threat to the king's peace.  The mere presence of such weapons creates terror in the public space.  Hawaii's statute makes provision for public officers, hunters and recreational users, and those with a legitimate cause for fear.

Single-officer approval regulatory scheme is not subject to challenge by prior restraint, as the regulations are not presumptively invalid.

Procedural due process claim is speculative, since no licence has yet been denied.

DISSENT: 

Unprecedented and extreme holding.  First circuit to hold that carrying a weapon in public falls outside of the protections of the Amendment.

Plain text of the Amendment requires right to carry arms.  19 c. State caselaw and federal legislation recognized the right to carry arms.

Statute of Northampton allowed carrying of common arms, not for the purpose of terror.  English law was more restrictive of the right to carry arms than was the American.  Surety was only actually invoked in extreme cases, implicitly legitimating the norm of peaceably carrying weapons. 

"Weapons capable of being concealed" is a novel standard.  Heller explicitly contemplates self-defense as a legitimate reason.  The responsibility for keeping the peace lies with the people, not with the states.

The right openly to carry arms is within the core of the Amendment.  As the regulation destroys the right, it is necessarily unconstitutional.

Pro se complaint should be construed as an as-applied challenge to the enforcement against the plaintiff.

DISSENT:

Should be either construed as as-applied, or allowed to amend. County regulations limiting licenses to working security guards are facially unconstitutional.

George Young, Jr. v. State of Hawaii

Ninth Circuit: USA v. Jane Boyd

 

Statute that allows for penalties for any violation of a certain section does not permit multiple penalties for multiple aspects of the violation of a single obligation, but rather establishes that any of the violations specified in the statute and associated regulations are subject to the penalty.

Materially similar provision for willful violations of the same obligation that allows for multiple penalties cuts against the idea that multiple penalties should be allowed in the section of the statute that doesn't explicitly mention them.

Tax statutes should be strictly constructed where they impose an obligation.

DISSENT:

The reporting requirement is a procedural element, but the substance of the statute is that each of the foreign bank accounts should be reported.

The use of "violation" as defined by its context in the similar provision establishes that the term should have that definition throughout the statute. 

Majority's reading is not strict, but strained.

USA v. Jane Boyd

Ninth Circuit: Wilber Acevedo Granado v. Merrick Garland

 

In ruling the proposed social group insufficiently particular, the IJ erred in not considering the clinical definition of people with intellectual disabilities; the common law definition does not necessarily control.

Although the proposed group of people with intellectual disabilities might commonly be mixed with people with mental illness generally, the relevant question for social distinctiveness is whether the difference can be discerned sufficiently for that subset to face increased persecution.  Discrimination based on the manifest symptoms is equivalent to discrimination against the group.

Proposed second social group was insufficiently responded to by the agency, and its rejection was insufficiently reasoned by the IJ.

Petitioner's claim of risk of torture insufficient under the Convention, since the attacks by police are cases of mistaken identity, and maltreatment by the medical workers because of overcrowding and lack of knowledge.

Wilber Acevedo Granado v. Merrick Garland

Eighth Circuit: United States v. Stacy Lyman

 

As the petitioner was sufficiently represented by counsel during the earlier criminal proceedings that resulted in the predicate convictions, claiming that the charging documents allege a mental state different from that of the offense charged is an impermissible collateral attack from a second forum.

Court did not plainly err in holding that no mental state was required for the predicate serious drug offenses under the statute.

 United States  v.  Stacy Lyman

Seventh Circuit: Tyler Kirk v. Clark Equipment Company

 

Concise Daubert analysis is distinct from conclusory Daubert analysis, and therefore is analyzed for abuse of discretion.

Merely establishing the qualifications of the expert is insufficient; the principles and methods used must be analyzed as well.  Expert testimony involving theories that had not been tested on that type of machine were within the discretion of the court to exclude, even given subsequent remedial measures by deft. Expert testimony as to causation legitimately excluded, since the expert was speculating as to the amount of weight that caused the machine to unbalance; there was no requirement to let the question of causation go to the finder of fact, since the court has a gatekeeper function with expert testimony.

Absent expert testimony, the strict liability defective design claim didn't present a genuine issue of material fact for trial, since consumer expectations are insufficient objective proof when it comes to industrial machines.

Tyler Kirk v.  Clark Equipment Company

Seventh Circuit: Kimberly Nelson v. City of Chicago

 

Loss of employment is insufficient harm to establish a claim under substantive due process, as employment is not a fundamental right.

Negligence in not listening to emergency radio dispatches doesn't state a substantive due process claim for a police officer later injured due to lack of assistance.  The state-created danger exception to the private danger exclusion in due process analysis can't be invoked here, since it only applies when the state disables people from protecting themselves.

Disregarding a known risk to a public employee or altering work records after the fact are insufficiently conscience-shocking to state a substantive due process claim, and the emotional injury from the latter is insufficient to support a S1983 claim.

Plaintiff did not identify procedural shortcomings in protections sufficient to state a claim under procedural due process.

Monell claim against the municipality wasn't supported by showing of pattern or practice beyond individual acts subject to respondeat superior, which is not a basis for liability in S1983.

Kimberly Nelson v.  City of Chicago

Seventh Circuit: USA v. Vickie Sanders

 

Court did not abuse its discretion in denying compassionate release petitioner a reply brief under Due Process after government brief with new medical evidence, since the motion was denied on other grounds.

Denial order did not need to recite basis for denial as to each medical susceptibility, or holding as to each sentencing and factual history element.

USA v.  Vickie Sanders

Seventh Circuit: Next Technologies, Inc. v. Beyond the Office Door LLC

 

Court might have exercised a bit more Constitutional avoidance.  Few Lanham Act disparagement claims would succeed if the manufacturers were considered limited purpose public figures.

Although the state's law doesn't distinguish personal libel from trade libel, since there are few examples of the latter in the caselaw, it is reasonable to follow the Restatement rule requiring injurious falsehood -- false statements of specific unfavorable facts --  for trade libel, a standard which requires reckless disregard of the truth.

Next Technologies, Inc. v.  Beyond the Office Door LLC

Seventh Circuit: USA v. Latrell Coe

 

Reference in sentencing colloquy to an ethnicity shared with the defendant was sufficiently counterbalanced by race-neutral reasoning on the subject, establishing that the court did not rely upon impermissible factors.

Incomplete brain development in the late teens and early twenties is a generic, stock argument, and not a valid mitigating factor.

USA v. Latrell Coe