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.

http://media.ca8.uscourts.gov/opndir/21/08/193458P.pdf

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.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-19/C:20-2243:J:Wood:aut:T:fnOp:N:2749985:S:0

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.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-18/C:20-1754:J:Sykes:dis:T:fnOp:N:2749716:S:0

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.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-18/C:20-1934:J:Wood:aut:T:fnOp:N:2749668:S:0

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.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-18/C:20-3140:J:Scudder:aut:T:fnOp:N:2749770:S:0

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.

https://www.ca2.uscourts.gov/decisions/isysquery/7a798798-c807-4d88-a568-c3ee0be346ec/1/doc/18-2257_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/7a798798-c807-4d88-a568-c3ee0be346ec/1/hilite/

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.

http://media.ca1.uscourts.gov/pdf.opinions/20-2045P-01A.pdf

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

Eighth Circuit: Ascente Business Consulting v. DR myCommerce

 

Proof that a company had certain knowledge prior to its employees' contrary statements is insufficient to state a fraud or fraud-adjacent claim under the state's heightened pleading rules.  

Evidence that work stopped after a certain meeting can't speak to the mindset of statements made at that meeting.  Evidence of a contrary financial interest is at most only a factor, as is the amount of work that it would have taken to accomplish the task.

Expert testimony on ambiguity of contract terms is inadmissible, as ambiguity is a legal conclusion.

Given testimony that the overruns were paid to preserve the business relationship, there was no question for trial on the reliance on the underlying representations. Under state law, the counterparty's expectations of the plaintiff's reliance are insufficient to establish the plaintiff's reliance.

http://media.ca8.uscourts.gov/opndir/21/08/202474P.pdf

Eighth Circuit: Anthony Vines v. Welspun Pipes Inc.

 

Court did not clearly err in refusing to sanction a settlement under the statute due to the fact that the attorneys' fees had not been negotiated separately from the underlying claim, given the simultaneous negotiation in emails, calculation of fee on the basis of the the case proceeding without settlement, and implicit tying of the agreement on fees to the agreement on the underlying claim.

Award of de minimis attorneys' fees was an abuse of discretion, as the amount must be determined by determination of the lodestar value by multiplying the hours and the rate.

Given that the only rmaining matter is the calculation of attorneys' fees, no plain error sufficient to reassign on remand.

DISSENT:

Negotiating a wage claim simultaneously with the fees creates a significant conflict of interest.   Plaintiffs counsel, in fee negotiations, said that deft was getting a "pretty sweet deal."  Court below held that lodestar was inapplicable on this record.

http://media.ca8.uscourts.gov/opndir/21/08/202168P.pdf

Eighth Circuit: Ka'Torah Prowse v. Walter Washington

 

When an administrative appeal is filed under the statute, and the petitioner maintains that the papers were filed on certain dates and in a certain order, but this is contradicted by the receipt stamps on the documents, the issue presents a question for trial; the date stamps are not dispositive.

https://ecf.ca8.uscourts.gov/opndir/21/08/201995P.pdf

Eighth Circuit: United States v. Clarence Robinson

 

Existence of a second statutory basis, based on the drug quantity determinations made during sentencing, for the life sentence imposed at original sentencing does not make the petitioner ineligible for relief under the statute.  Since the statute looks to the offense of conviction and not the underlying facts, the sentence imposed for the offense of conviction should be modified.

DISSENT:

Given the findings, the petitioner would have been sentenced under the second statutory basis at the original sentencing, which makes him ineligible for relief.

http://media.ca8.uscourts.gov/opndir/21/08/201947P.pdf

Eighth Circuit: Scott McLaughlin v. Anne Precythe

 

Although a simple Google search would likely have revealed the impeachment evidence against the defense expert witness in a capital case, not investigating the witness beyond a reasoble reliance on the judgment of the professional commnity was not ineffective assistance of counsel.

Petitioner wasn't prejudiced by lack of replacement psychologist's testimony, a witness who would have provided evidence on an aggravating factor on which the jury ended up not being able to reach a decision, since from a legal point of view the testimony would have been duplicative of the overwhelming evidence on this point; there was therefore not a substantial likelihood of a different result.

AEDPA deference to state habeas finding to the contrary offers an independent ground for overruling the district court ruling that petitioner was prejudiced by the lack of testimony.

Since the ineffective assistance claim wasn't substantial, petitioner can't raise it in federal habeas after defaulting in state habeas, since excuse of default requires a substantial claim.

While jury instructions can't require that a jury be unanimous on any one mitigating factor, they can require that the jury be unanimous in its decision that the mitigating factors outweigh the aggravating factors.

District Court erred in holding that the weighing of mitigating and aggravating circumstances was a finding of fact upon which the legislature had conditioned an increased punishment and that therefore must be performed by the jury, since the supreme court of the state has held in this case that the same precedent referenced by the district court was inapplicable.

CONCURRENCE:

Although the investigation of the expert witness was insufficient, there was no prejudice, given the other evidence offered.  

State supreme court has held that only the existence of a single mitigating factor need be found by the jury under the statutue, as it constitutes eligibility for the increased sentence.

http://media.ca8.uscourts.gov/opndir/21/08/183510P.pdf