FTCA
Although the specific harms are not outlined in the latter statute, plaintiff's standing under FTCA is displaed by the CSRA, given that the harms are specifically employment-related.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30347-CV0.pdf
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.
Third Circuit: Group Against Smog and Pollution v. Shenango Inc
Administrative law - citizen suit/environment
Statute's requirement that there not be a pre-existing diligent prosecution of rights under the statute in order to permit a citizen suit is a substantive requirement, not a jurisdictional bar to suit.
A final judgment resulting from a diligent prosecution does not, in itself, remove the bar to citizen suit.
Diligent enforcement of outcome acts as a per se bar to citizen suit.
http://www2.ca3.uscourts.gov/opinarch/152041p.pdf
Statute's requirement that there not be a pre-existing diligent prosecution of rights under the statute in order to permit a citizen suit is a substantive requirement, not a jurisdictional bar to suit.
A final judgment resulting from a diligent prosecution does not, in itself, remove the bar to citizen suit.
Diligent enforcement of outcome acts as a per se bar to citizen suit.
http://www2.ca3.uscourts.gov/opinarch/152041p.pdf
First Circuit: US v. Cortes-Medina
Sentencing.
Facts in pre-sentencing report do not preserve challenge -- where deft does not challenge the omission in the argumentative portion, the challenge is waived.
Prior arrest record is distinct from acquitted conduct in sentencing considerations.
No abuse of discretion in sentencing court's omission of the recitation of sentencing factors.
Although the explanation of the sentence was insufficient under the statute, this alone does not suffice for plain error.
The substantive reasonableness of the sentence is determined with reference to the guidelines, not the agreement of the parties.
Dissent - When a court considers prior acquitted conduct without findings of at least a preponderance, it suffices even under plain error review.
http://media.ca1.uscourts.gov/pdf.opinions/14-1101P-01A.pdf
Facts in pre-sentencing report do not preserve challenge -- where deft does not challenge the omission in the argumentative portion, the challenge is waived.
Prior arrest record is distinct from acquitted conduct in sentencing considerations.
No abuse of discretion in sentencing court's omission of the recitation of sentencing factors.
Although the explanation of the sentence was insufficient under the statute, this alone does not suffice for plain error.
The substantive reasonableness of the sentence is determined with reference to the guidelines, not the agreement of the parties.
Dissent - When a court considers prior acquitted conduct without findings of at least a preponderance, it suffices even under plain error review.
http://media.ca1.uscourts.gov/pdf.opinions/14-1101P-01A.pdf
Tenth Circuit: Nesbitt v. FCNH
Arbitration
An opt-out clause in the agreement only speaks to the threshold question of scope of arbitration, and does not forestall an exemption from compulsory arbitration in order to effectively vindicate a claim.
Giver internal inconsistencies in the agreement and incorporated rules, a plaintiff might justifiably refrain from pursuing a claim, given the uncertainty of eventual reimbursement.
https://www.ca10.uscourts.gov/opinions/14/14-1502.pdf
An opt-out clause in the agreement only speaks to the threshold question of scope of arbitration, and does not forestall an exemption from compulsory arbitration in order to effectively vindicate a claim.
Giver internal inconsistencies in the agreement and incorporated rules, a plaintiff might justifiably refrain from pursuing a claim, given the uncertainty of eventual reimbursement.
https://www.ca10.uscourts.gov/opinions/14/14-1502.pdf
Tenth Circuit: United States v. Webster
4A/ Ineffective Assistance
No ineffective assistance Habeas, as the theft of personalty from the deft's house during the search did not justify a blanket suppression of the fruits of the search.
https://www.ca10.uscourts.gov/opinions/15/15-3027.pdf
No ineffective assistance Habeas, as the theft of personalty from the deft's house during the search did not justify a blanket suppression of the fruits of the search.
https://www.ca10.uscourts.gov/opinions/15/15-3027.pdf
Tenth Circuit: Espinoza v. Arkansas Valley Adventures
Liability/ Torts
There is no public policy bar to enforcement of a waiver of liability, given the generally permissive view of the legislature and the fact that the relevant misdemeanor negligence statute is silent as to the civil implications of negligence per se.
Strong drafting of release overwhelms considerations of the general characterization of risk
Dissent: Characterization of risk presents a genuine issue of material fact.
https://www.ca10.uscourts.gov/opinions/14/14-1444.pdf
There is no public policy bar to enforcement of a waiver of liability, given the generally permissive view of the legislature and the fact that the relevant misdemeanor negligence statute is silent as to the civil implications of negligence per se.
Strong drafting of release overwhelms considerations of the general characterization of risk
Dissent: Characterization of risk presents a genuine issue of material fact.
https://www.ca10.uscourts.gov/opinions/14/14-1444.pdf
Seventh Circuit: Tracy Williams v. Brandon Brooks
Sentencing
Imposition of boilerplate conditions on supervised release without specific findings upheld.
Conditions requiring that deft support family, regularly work at lawful occupation, alert govt to change of residence, not frequent places where drugs are sold, associate with those convicted of felony, consent to visits by govt officer, notify third parties of conviction impermissibly vague/not supported by findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:14-2458:J:Flaum:aut:T:fnOp:N:1681664:S:0
Imposition of boilerplate conditions on supervised release without specific findings upheld.
Conditions requiring that deft support family, regularly work at lawful occupation, alert govt to change of residence, not frequent places where drugs are sold, associate with those convicted of felony, consent to visits by govt officer, notify third parties of conviction impermissibly vague/not supported by findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:14-2458:J:Flaum:aut:T:fnOp:N:1681664:S:0
Seventh Circuit: USA v. Matthew Poulin
S1983 - false arrest
As plaintiff had no specific memory of activating the turn signal during the lane change, the arrest was lawful.
Deft's strange actions justified use of force in arrest.
State court's dismissal of charge of resisting arrest does not create a genuine issue of material fact as to whether the deft resisted arrest.
No FRE 408 claim against introduction of diversion agreement.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-1763:J:Flaum:aut:T:fnOp:N:1681632:S:0
As plaintiff had no specific memory of activating the turn signal during the lane change, the arrest was lawful.
Deft's strange actions justified use of force in arrest.
State court's dismissal of charge of resisting arrest does not create a genuine issue of material fact as to whether the deft resisted arrest.
No FRE 408 claim against introduction of diversion agreement.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-1763:J:Flaum:aut:T:fnOp:N:1681632:S:0
Sixth Circuit: Tracy Morton v. Vanderbilt University
Employment
As some workers were paid for 60 days after they were told to leave, the layoffs did not trigger the Federal WARN act, as a subset of the workers laid off were technically still employed.
http://www.ca6.uscourts.gov/opinions.pdf/16a0002p-06.pdf
As some workers were paid for 60 days after they were told to leave, the layoffs did not trigger the Federal WARN act, as a subset of the workers laid off were technically still employed.
http://www.ca6.uscourts.gov/opinions.pdf/16a0002p-06.pdf
Sixth Circuit: Norbert Kelsey v. Melissa Pope
Habeas: Tribes - Crim
Native American tribes have extraterritorial criminal jurisdiction over their members.
Extraterritorial contacts between tribe members at a tribal function implicate core notions of sovereignty.
Presumption against implicit divestment by Congressional act.
As the conduct was of the nature that would generally lead to prosecution somewhere, no Due Process notice considerations with the introduction of an unforeseen sovereignty.
Tribal court's exercise of jurisdiction was routine common law decisionmaking.
http://www.ca6.uscourts.gov/opinions.pdf/16a0001p-06.pdf
Native American tribes have extraterritorial criminal jurisdiction over their members.
Extraterritorial contacts between tribe members at a tribal function implicate core notions of sovereignty.
Presumption against implicit divestment by Congressional act.
As the conduct was of the nature that would generally lead to prosecution somewhere, no Due Process notice considerations with the introduction of an unforeseen sovereignty.
Tribal court's exercise of jurisdiction was routine common law decisionmaking.
http://www.ca6.uscourts.gov/opinions.pdf/16a0001p-06.pdf
Fifth Circuit: Stephen Miller v. Metrocare Services, et al
Discrimination, S1983 name-clearing
Sufficient nondiscriminatory basis for ending of employment.
Confrontation of witnesses is not required at a S1983 name-clearing proceeding under procedural due process.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10086-CV0.pdf
Sufficient nondiscriminatory basis for ending of employment.
Confrontation of witnesses is not required at a S1983 name-clearing proceeding under procedural due process.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10086-CV0.pdf
Fifth Circuit: USA v. Jesus Ramos-Rodriguez
FRE
Evidence of prior traffic stop in, as it helps to establish deft's knowledge of contraband in vehicle.
No error in the introduction of profile-based evidence that tended to establish mens rea.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50846-CR0.pdf
Evidence of prior traffic stop in, as it helps to establish deft's knowledge of contraband in vehicle.
No error in the introduction of profile-based evidence that tended to establish mens rea.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50846-CR0.pdf
Fifth Circuit: Lillie Wheat v. Florida Prsh Juv Justice Cmsn
Title VII/FMLA
Assignment to janitorial duties is not a per se materially adverse action.
Plaintiff did not establish pay adjustment as materially adverse.
Denial of reassignment not per se materially adverse.
Disparate treatment of others similarly situated raised genuine issue of material fact on the retaliatory dismissal.
Dissent: Janitorial duties materially adverse on this record.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30788-CV0.pdf
Assignment to janitorial duties is not a per se materially adverse action.
Plaintiff did not establish pay adjustment as materially adverse.
Denial of reassignment not per se materially adverse.
Disparate treatment of others similarly situated raised genuine issue of material fact on the retaliatory dismissal.
Dissent: Janitorial duties materially adverse on this record.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30788-CV0.pdf
Third Circuit: USA v. Jason Moreno
FRE, FRCrimP
Admission of written statements of investigating agent read into the record by a witness under the prior consistent statements hearsay exception violated the Confrontation Clause, but the error was harmless.
No plain error in the sentencing bump for 50 victims.
Prosecutor's unauthorized cross during allocution violated the common law right of allocution, and as it was contrary to the purposes of the relevant FRCrimP rule, the error was plain. Sentence vacated.
http://www2.ca3.uscourts.gov/opinarch/141568p.pdf
Admission of written statements of investigating agent read into the record by a witness under the prior consistent statements hearsay exception violated the Confrontation Clause, but the error was harmless.
No plain error in the sentencing bump for 50 victims.
Prosecutor's unauthorized cross during allocution violated the common law right of allocution, and as it was contrary to the purposes of the relevant FRCrimP rule, the error was plain. Sentence vacated.
http://www2.ca3.uscourts.gov/opinarch/141568p.pdf
Third Circuit: Chesapeake Appalachia LLC v. Scout Petroleum
Arbitration - class actions
Neither the terms of the contract nor the incorporation of the arbitration organization's rules constituted a clear and unmistakable consent to allowing the arbitrator to define the scope of a class arbitration.
http://www2.ca3.uscourts.gov/opinarch/151275p.pdf
Neither the terms of the contract nor the incorporation of the arbitration organization's rules constituted a clear and unmistakable consent to allowing the arbitrator to define the scope of a class arbitration.
http://www2.ca3.uscourts.gov/opinarch/151275p.pdf
DC Circuit: Anglers Conservation Network v. Penny Pritzker
Administrative law
Interstate council not subject to statutory or APA suit -- although inaction is "backstopped" by the Agency, the action and inaction of the council isn't actionable under Agency-based rights of action.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E0161B8D8499099885257F3100533D5A/$file/14-5304-1591775.pdf
Interstate council not subject to statutory or APA suit -- although inaction is "backstopped" by the Agency, the action and inaction of the council isn't actionable under Agency-based rights of action.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E0161B8D8499099885257F3100533D5A/$file/14-5304-1591775.pdf
Eleventh Circuit: Rosa and Raymond Parks Institute for Self Development v. Target Corporation
Court properly dismissed right of publicity claim under public interest exception.
http://media.ca11.uscourts.gov/opinions/pub/files/201510880.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201510880.pdf
Eleventh Circuit: USA v. Demarco Doxie
Sentencing
No error in court's declining to group tax counts with fraud counts for purposes of sentencing.
Typo at 9.
http://media.ca11.uscourts.gov/opinions/pub/files/201511161.pdf
No error in court's declining to group tax counts with fraud counts for purposes of sentencing.
Typo at 9.
http://media.ca11.uscourts.gov/opinions/pub/files/201511161.pdf
Tenth Circuit: Savant Homes v. Collins
Copyright - architecture
Summary judgment for deft upheld, as plaintiff did not establish uniqueness of architectural elements.
Not per se error for the court to use "abstraction & filtration" for architecture.
No error in dismissal of trade dress claims.
https://www.ca10.uscourts.gov/opinions/15/15-1115.pdf
Summary judgment for deft upheld, as plaintiff did not establish uniqueness of architectural elements.
Not per se error for the court to use "abstraction & filtration" for architecture.
No error in dismissal of trade dress claims.
https://www.ca10.uscourts.gov/opinions/15/15-1115.pdf
Ninth Circuit: Cuprite Mine Partners v. John Anderson
FRCP - mining,
Joinder appropriate in case of adjoining strip mines.
State partition statute does not require most profitable sale - only the timely sale.
State statute potentially requiring trial before partition is a procedural, not substantive requirement for Erie.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/31/13-16657.pdf
Joinder appropriate in case of adjoining strip mines.
State partition statute does not require most profitable sale - only the timely sale.
State statute potentially requiring trial before partition is a procedural, not substantive requirement for Erie.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/31/13-16657.pdf
Ninth Circuit: Richard Shirrod v. OWCP
Award of fees - Longshoreman's Act
Error to use statewide index as opposed to market-specific.
Error to include workmans comp numbers in the lodestar calculations.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/31/13-70613.pdf
Error to use statewide index as opposed to market-specific.
Error to include workmans comp numbers in the lodestar calculations.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/31/13-70613.pdf
Eighth Circuit: Elvin Castillo-Gutierrez v. Loretta E. Lynch
Immigration
No error in denial of asylum, as reasonable factfinder could think that petitioner could move elsewhere in the country, the ountry-specific evidence is vague, and there have been no recent murders.
http://media.ca8.uscourts.gov/opndir/16/01/143503P.pdf
No error in denial of asylum, as reasonable factfinder could think that petitioner could move elsewhere in the country, the ountry-specific evidence is vague, and there have been no recent murders.
http://media.ca8.uscourts.gov/opndir/16/01/143503P.pdf
Eighth Circuit: United States v. Randall Robinson
Brady, FRE
Brady material no sufficiently dispositive to be material.
No error in admission of previous conviction.
Where there are multiple superseding indictments, a count dropped from an earlier indictment can be tried later where the superseding indictment is based on a new set of facts.
No abuse of discretion in declining to recuse where an attorney who formerly represented the deft is hired by the judge as a clerk.
Sufficient evidence for false statements count.
Standard of review for vindictive prosc is de novo on law, clear error for facts.
Jury deadlocked, so no vindictive prosc.
Dissent - Brady impeachment evidence was material; error to include subsequent letter in record re: the recusal.
http://media.ca8.uscourts.gov/opndir/16/01/143503P.pdf
Brady material no sufficiently dispositive to be material.
No error in admission of previous conviction.
Where there are multiple superseding indictments, a count dropped from an earlier indictment can be tried later where the superseding indictment is based on a new set of facts.
No abuse of discretion in declining to recuse where an attorney who formerly represented the deft is hired by the judge as a clerk.
Sufficient evidence for false statements count.
Standard of review for vindictive prosc is de novo on law, clear error for facts.
Jury deadlocked, so no vindictive prosc.
Dissent - Brady impeachment evidence was material; error to include subsequent letter in record re: the recusal.
http://media.ca8.uscourts.gov/opndir/16/01/143503P.pdf
Eighth Circuit: Frederic Fezard v. United Cerebral Palsy etc.
Employment law - home health
When the employee cares for the patient in the home of the employee, the "private home" exception to the labor statute applies.
Retaliation claim properly dismissed, as nonretaliatory basis not proven pretextual.
http://media.ca8.uscourts.gov/opndir/16/01/143601P.pdf
When the employee cares for the patient in the home of the employee, the "private home" exception to the labor statute applies.
Retaliation claim properly dismissed, as nonretaliatory basis not proven pretextual.
http://media.ca8.uscourts.gov/opndir/16/01/143601P.pdf
Eighth Circuit: United States v. Brian Daniel
Fourth Amendment - car search
Even if stated purpose of the search was to look for a gun, the odor of drugs, an observed transaction, and the discovery of drugs in the possession of an occupant gave probable cause for the search.
http://media.ca8.uscourts.gov/opndir/16/01/151135P.pdf
Even if stated purpose of the search was to look for a gun, the odor of drugs, an observed transaction, and the discovery of drugs in the possession of an occupant gave probable cause for the search.
http://media.ca8.uscourts.gov/opndir/16/01/151135P.pdf
Eighth Circuit: United States v. Trevon Sykes
ACCA predicates
As the PSR was sufficient to establish the burglary convictions as "generic burglary," the convictions are ACCA predicates.
Crime committed as a juvenile considered as ACCA predicates do not implicate 8A.
http://media.ca8.uscourts.gov/opndir/16/01/143139P.pdf
As the PSR was sufficient to establish the burglary convictions as "generic burglary," the convictions are ACCA predicates.
Crime committed as a juvenile considered as ACCA predicates do not implicate 8A.
http://media.ca8.uscourts.gov/opndir/16/01/143139P.pdf
Eighth Circuit: Rebecca Nichols v. Tri-National Logistics, Inc.
Title VII
Error in summary dismissal of gender discrimination claim - many factors, including that the discrimination does not have to happen on company premises in order to be actionable under Title VII.
Dismissal of claim based on retaliatory ending of employment upheld.
Dissent: Insufficient time between first report and ending of employment to justify a claim.
http://media.ca8.uscourts.gov/opndir/16/01/151153P.pdf
Error in summary dismissal of gender discrimination claim - many factors, including that the discrimination does not have to happen on company premises in order to be actionable under Title VII.
Dismissal of claim based on retaliatory ending of employment upheld.
Dissent: Insufficient time between first report and ending of employment to justify a claim.
http://media.ca8.uscourts.gov/opndir/16/01/151153P.pdf
Eighth Circuit: United States v. Juan Manzano-Huerta
Sentencing - Plea deals
Where a plea agreement recites that the deft believed that the workers could be paid as independent contractors, Govt may attempt at sentencing to establish a further obstruction sentencing bump based on the categorization of the workers as independent contractors.
Obstruction bump established by a preponderance.
http://media.ca8.uscourts.gov/opndir/16/01/151416P.pdf
Where a plea agreement recites that the deft believed that the workers could be paid as independent contractors, Govt may attempt at sentencing to establish a further obstruction sentencing bump based on the categorization of the workers as independent contractors.
Obstruction bump established by a preponderance.
http://media.ca8.uscourts.gov/opndir/16/01/151416P.pdf
Seventh Circuit: USA v. Lance Slizewski
Fourth Amendment - Franks
No error in denial of a Franks hearing, as affiant's mistaken identification of brands of shoes and automobiles were not sufficient to justify the hearing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-2397:J:Kanne:aut:T:fnOp:N:1681429:S:0
No error in denial of a Franks hearing, as affiant's mistaken identification of brands of shoes and automobiles were not sufficient to justify the hearing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-2397:J:Kanne:aut:T:fnOp:N:1681429:S:0
Seventh Circuit: Benard McKinley v. Kim Butler
Habeas, retroactivity (Posner)
Although Federal Habeas is unavailable for 8A claim as it was not raised on state direct appeal, there is sufficient cause & prejudice for a successive state Habeas. A post-sentencing Supreme Court holding establishing a categorical bar to mandatory life sentences for juveniles also established a non-categorical right for juvenile status to be considered in mitigation when imposing a life sentence.
Dissent: The ethic behind the non-categorical right was present in earlier decisions as well. Problematic rule.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-1944:J:Ripple:dis:T:fnOp:N:1681279:S:0
Although Federal Habeas is unavailable for 8A claim as it was not raised on state direct appeal, there is sufficient cause & prejudice for a successive state Habeas. A post-sentencing Supreme Court holding establishing a categorical bar to mandatory life sentences for juveniles also established a non-categorical right for juvenile status to be considered in mitigation when imposing a life sentence.
Dissent: The ethic behind the non-categorical right was present in earlier decisions as well. Problematic rule.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-1944:J:Ripple:dis:T:fnOp:N:1681279:S:0
Seventh Circuit: USA v. J.B. Brown
Batson.
Similarities between jurors are not proof that a court did not consult the record, where the court explicitly states that the record was consulted.
With respect to comparators, false arrest is distinguishable from having charges dropped or being later found not guilty.
Lack of follow-up questioning is not proof of pretext.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-3652:J:Flaum:aut:T:fnOp:N:1680662:S:0
Similarities between jurors are not proof that a court did not consult the record, where the court explicitly states that the record was consulted.
With respect to comparators, false arrest is distinguishable from having charges dropped or being later found not guilty.
Lack of follow-up questioning is not proof of pretext.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-3652:J:Flaum:aut:T:fnOp:N:1680662:S:0
Seventh Circuit: USA v. Iaad Hamad
Fourth Amendment - administrative searches.
A warrantless administrative search of the areas proximate to the cigarette inventory pursuant to local ordinance and during business hours does not violate the Fourth Amendment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-3813:J:Rovner:aut:T:fnOp:N:1680928:S:0
A warrantless administrative search of the areas proximate to the cigarette inventory pursuant to local ordinance and during business hours does not violate the Fourth Amendment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:14-3813:J:Rovner:aut:T:fnOp:N:1680928:S:0
Seventh Circuit: EEOC v. AutoZone, Incorporated
ADA
Substantial evidence for denial of claim based on lifting restrictions. Although another person in the shop had a paralyzed arm, the latter was a part-timer who could lift with his other arm.
No error in denial of "team" jury instruction where the re-assigned work was delegate work of the specific position, not a general allocation of duties.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1753:J:Bauer:aut:T:fnOp:N:1681150:S:0
Substantial evidence for denial of claim based on lifting restrictions. Although another person in the shop had a paralyzed arm, the latter was a part-timer who could lift with his other arm.
No error in denial of "team" jury instruction where the re-assigned work was delegate work of the specific position, not a general allocation of duties.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1753:J:Bauer:aut:T:fnOp:N:1681150:S:0
Seventh Circuit: August Bogina, III v. Medline Industries, Incorporated
Statutory interpretation, False Claims Act
Where a provision of a statute clarifies an ambiguity in a parallel earlier provision, the new reading may be retroactively applied.
Where the relator in a qui tam action under the False Claims Act merely supplies detail for things already known in outline from previous suits, the court does not have jurisdiction under the statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1867:J:Posner:aut:T:fnOp:N:1680761:S:0
Where a provision of a statute clarifies an ambiguity in a parallel earlier provision, the new reading may be retroactively applied.
Where the relator in a qui tam action under the False Claims Act merely supplies detail for things already known in outline from previous suits, the court does not have jurisdiction under the statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1867:J:Posner:aut:T:fnOp:N:1680761:S:0
Seventh Circuit: Michael Thompson v. William Holm
S1983 - prison food/religion.
Denial of substitute meals during periods of fast substantially burdens Free Exercise of Religion.
No qualified immunity for denial of food.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1928:J:Rovner:aut:T:fnOp:N:1681174:S:0
Denial of substitute meals during periods of fast substantially burdens Free Exercise of Religion.
No qualified immunity for denial of food.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1928:J:Rovner:aut:T:fnOp:N:1681174:S:0
Fifth Circuit: William Gibson, et al v. USA, et al
FTCA
Helping folks into and out of trailers is a garden-variety fucntion not susceptible to policy analysis, and therefore not subject to the discretionary conduct exception to the FTCA.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31303-CV0.pdf
Helping folks into and out of trailers is a garden-variety fucntion not susceptible to policy analysis, and therefore not subject to the discretionary conduct exception to the FTCA.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31303-CV0.pdf
Fifth Circuit: USA v. James Caravayo
Sentencing, Free Association
Where a deft objects to a condition of sentence but does not phrase the objections in terms of the sentencing statute, the review is for plain error.
As claimed error does not harm the judicial process, no plain error in the lack of relation to the sentencing statute.
As sentencing condition was not reasonably related to the aim of the sentencing statute, the Free Association challenge prevails,
Dissent: As there was no objection to the sentencing condition on the basis of the statute, the argument is not preserved.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50773-CR0.pdf
Where a deft objects to a condition of sentence but does not phrase the objections in terms of the sentencing statute, the review is for plain error.
As claimed error does not harm the judicial process, no plain error in the lack of relation to the sentencing statute.
As sentencing condition was not reasonably related to the aim of the sentencing statute, the Free Association challenge prevails,
Dissent: As there was no objection to the sentencing condition on the basis of the statute, the argument is not preserved.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50773-CR0.pdf
Fifth Circuit: Occidental Chemical Corp. v. Louisiana Public Service
FRCP, Administrative law.
A case stayed indefinitely pending an administrative challenge by a nonparty qualifies for the "out of court" exception to "final order" jurisdiction.
Where the statute in question does not bar the court from staying the action, the primary jurisdiction doctrine may be used to stay an action that is within the scope of a statute that contemplates both judicial and administrative enforcement.
When staying actions pending administrative enforcement actions brought by a non-party, a temporary stay is appropriate, subject to discretionary extensions for good cause.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30100-CV0.pdf
A case stayed indefinitely pending an administrative challenge by a nonparty qualifies for the "out of court" exception to "final order" jurisdiction.
Where the statute in question does not bar the court from staying the action, the primary jurisdiction doctrine may be used to stay an action that is within the scope of a statute that contemplates both judicial and administrative enforcement.
When staying actions pending administrative enforcement actions brought by a non-party, a temporary stay is appropriate, subject to discretionary extensions for good cause.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30100-CV0.pdf
Fifth Circuit: Joseph Robertson, et al v. Chevron USA, Incorporated
Class Actions
When a defendant seeks to remove under CAFA "mass actions" provisions, the court should make common-sense assumptions about amounts-in-controversy.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30920-CV0.pdf
When a defendant seeks to remove under CAFA "mass actions" provisions, the court should make common-sense assumptions about amounts-in-controversy.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30920-CV0.pdf
Second Circuit: Fed. Treasury Enter. Sojuzplodoimport v. Spirits Int’l B.V.
Comity, International Law, Trademark, Vodka.
When a foreign sovereign holds that an earlier assignment of trademark rights was ineffective, for purposes of standing, U.S. courts must defer on grounds of comity from questioning the reassignment of rights, although the subsequent questions on the merits of each assignment within its jurisdiction may be decided.
For purposes of the act of state doctrine, a state's decision on the ownership of a U.S. trademark may be considerwd as occurring within its own territory.
There is very likely no commercial exception to the Act of State doctrine. (!)
The assignment of rights of ownership of a trademark is a governmental, not commercial, act.
Prior dismissal of trademark claim does not bar present claim under res judicata, as dismissal for statutory standing is a curable defect.
As prior dismissal was voluntary, presumption of laches arises on non-Lanham claims.
http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/1/doc/14-4721_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/1/hilite/
When a foreign sovereign holds that an earlier assignment of trademark rights was ineffective, for purposes of standing, U.S. courts must defer on grounds of comity from questioning the reassignment of rights, although the subsequent questions on the merits of each assignment within its jurisdiction may be decided.
For purposes of the act of state doctrine, a state's decision on the ownership of a U.S. trademark may be considerwd as occurring within its own territory.
There is very likely no commercial exception to the Act of State doctrine. (!)
The assignment of rights of ownership of a trademark is a governmental, not commercial, act.
Prior dismissal of trademark claim does not bar present claim under res judicata, as dismissal for statutory standing is a curable defect.
As prior dismissal was voluntary, presumption of laches arises on non-Lanham claims.
http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/1/doc/14-4721_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/1/hilite/
Second Circuit: Garfield v. Ocwen Loan Servicing, LLC
Bankruptcy/FDCPA
As the remedies of the FDCPA do not explicitly conflict with the discharge injunction from bankruptcy proceedings, the Bankruptcy act does not partially repeal the FDCPA with reference to post-discharge suits; the ordinary statutory remedies are available.
Piecemeal litigation fears do not justify the barring of claims under the FDCPA.
http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/2/doc/15-527_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/2/hilite/
As the remedies of the FDCPA do not explicitly conflict with the discharge injunction from bankruptcy proceedings, the Bankruptcy act does not partially repeal the FDCPA with reference to post-discharge suits; the ordinary statutory remedies are available.
Piecemeal litigation fears do not justify the barring of claims under the FDCPA.
http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/2/doc/15-527_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b020799-9c35-4029-be16-860e741e9114/2/hilite/
First Circuit: Bezdek v. Vibram USA, Inc.
Class action - acceptance of settlement.
No abuse of discretion in acceptance of settlement below initial estimates.
No abode of discretion in valuation of injunctive relief barring false advertisements.
Given extensive discovery work, the fees and the clear sailing agreement were reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/15-1207P-01A.pdf
No abuse of discretion in acceptance of settlement below initial estimates.
No abode of discretion in valuation of injunctive relief barring false advertisements.
Given extensive discovery work, the fees and the clear sailing agreement were reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/15-1207P-01A.pdf
Federal Circuit: Redline Detection LLC v. Star Envirotech, Inc.
Patent.
No plain error in Patent Board's refusal to accept new evidence offered solely on the basis of timeliness and relevance. Agency has discretion, not arbitrary/capricious.
Use of a fog machine to test for leaks in a conduit was not particularly obvious.
[Again, we don't know many things, but we especially don't know Patent.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1047.Opinion.12-29-2015.1.PDF
No plain error in Patent Board's refusal to accept new evidence offered solely on the basis of timeliness and relevance. Agency has discretion, not arbitrary/capricious.
Use of a fog machine to test for leaks in a conduit was not particularly obvious.
[Again, we don't know many things, but we especially don't know Patent.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1047.Opinion.12-29-2015.1.PDF
Ninth Circuit - James Styers v. Charles Ryan
Habeas/AEDPA.
Very complex. Here's our best guess on a first read:
When a state court re-evaluates a capital sentence due to a Federal Habeas writ, the case remains under collateral appeal, and is therefore not subject to non-retroactive changes in the substantive law.
In this case, the state court can consider a mitigating factor in a plenary consideration (whether Arizona's procedure here is genuinely de novo appears to be an open question) and impose the capital sentence without sending the case to a jury.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-16952.pdf
Very complex. Here's our best guess on a first read:
When a state court re-evaluates a capital sentence due to a Federal Habeas writ, the case remains under collateral appeal, and is therefore not subject to non-retroactive changes in the substantive law.
In this case, the state court can consider a mitigating factor in a plenary consideration (whether Arizona's procedure here is genuinely de novo appears to be an open question) and impose the capital sentence without sending the case to a jury.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-16952.pdf
Ninth Circuit: Adobe Systems v. Joshua Christenson
IP - Copyright & Trademark
Where a first sale defense to copyright infringement is argued, the party asserting the defense has the burden to prove the sale, but the party claiming infringement has the burden to prove that the apparent sale was actually a license.
General testimony and generic licensing templates do not suffice for proof that a specific transaction was a license.
An assertion that goods were sold under the correct mark, but without the consent of the owner of the mark speaks to unfair competition, not infringement.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-17371.pdf
Where a first sale defense to copyright infringement is argued, the party asserting the defense has the burden to prove the sale, but the party claiming infringement has the burden to prove that the apparent sale was actually a license.
General testimony and generic licensing templates do not suffice for proof that a specific transaction was a license.
An assertion that goods were sold under the correct mark, but without the consent of the owner of the mark speaks to unfair competition, not infringement.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-17371.pdf
Ninth Circuit: David Correo-Ruiz v. Loretta Lynch
Immigration.
When a petitioner asserts a reliance on prior precedent and there is a genuine issue of retroactivity, but the record is insufficient to describe the claim, the case should be remanded to the agency for the development of the record.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-72126.pdf
When a petitioner asserts a reliance on prior precedent and there is a genuine issue of retroactivity, but the record is insufficient to describe the claim, the case should be remanded to the agency for the development of the record.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-72126.pdf
Ninth Circuit: Jacquelynn Dorrance v. USA
Tax.
Stock acquired by policyholders upon demutualization of a life-insurance company is taxable, as premiums paid were solely for the defined benefit, and not an accrual of value.
Dissent: Value was accrued beyond the level of anticipated benefit prior to the IPO.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-16548.pdf
Stock acquired by policyholders upon demutualization of a life-insurance company is taxable, as premiums paid were solely for the defined benefit, and not an accrual of value.
Dissent: Value was accrued beyond the level of anticipated benefit prior to the IPO.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-16548.pdf
Ninth Circuit: DM Residential Fund II v. First Tennessee Bank DM
Property - rescission.
Lack of electrical service constitutes inquiry notice for lack of utility easement.
Dissent (Koz): No duty to investigate in the statute; no proof that they could have investigated; potential fraud claims are TKO'd by summary judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-56309.pdf
Lack of electrical service constitutes inquiry notice for lack of utility easement.
Dissent (Koz): No duty to investigate in the statute; no proof that they could have investigated; potential fraud claims are TKO'd by summary judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-56309.pdf
Seventh Circuit: USA v. Antonio West
Expert testimony - mental handicap.
Where expert testimony on the mental capacity of the defendant can undercut the reliability of a confession, it is admissible on those grounds.
Non-expert testimony subject to the discretion of the court.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-30/C:14-2514:J:Sykes:aut:T:fnOp:N:1679527:S:0
Where expert testimony on the mental capacity of the defendant can undercut the reliability of a confession, it is admissible on those grounds.
Non-expert testimony subject to the discretion of the court.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-30/C:14-2514:J:Sykes:aut:T:fnOp:N:1679527:S:0
Fifth Circuit: Bd. of Trs. Local 392 v. B&B Mech. Servs.
Labor - agency.
Employer's membership in trade negotiating organization sufficed to bind it to the CBA, even though written authorization to bind the employer was never issued.
Secondary certification writings incorporated the unexpired CBA.
http://www.ca6.uscourts.gov/opinions.pdf/15a0301p-06.pdf
Employer's membership in trade negotiating organization sufficed to bind it to the CBA, even though written authorization to bind the employer was never issued.
Secondary certification writings incorporated the unexpired CBA.
http://www.ca6.uscourts.gov/opinions.pdf/15a0301p-06.pdf
Fourth Circuit: Eddy Etienne v. Loretta Lynch
Immigration.
Expedited removal procedures allow aliens no opportunity to raise matters of law related to their deportation - Circuit split flagged.
Checkbox on a form indicating that documents are attached is an insufficient avenue to raise matters not addressed in the other checkbox options.
As Congress implicitly incorporated the common law definition of the crime, a conviction on a state charge of Conspiracy that doesn't require the overt act in furtherance usually required in the modern law still qualifies.
http://www.ca4.uscourts.gov/Opinions/Published/142013.P.pdf
Expedited removal procedures allow aliens no opportunity to raise matters of law related to their deportation - Circuit split flagged.
Checkbox on a form indicating that documents are attached is an insufficient avenue to raise matters not addressed in the other checkbox options.
As Congress implicitly incorporated the common law definition of the crime, a conviction on a state charge of Conspiracy that doesn't require the overt act in furtherance usually required in the modern law still qualifies.
http://www.ca4.uscourts.gov/Opinions/Published/142013.P.pdf
Eleventh Circuit: Glenaan Robbins v. Garrison Property and Casualty Insurance Company
Statutory construction
A no-fault insurance law that awards one level of damages where a medical professional has determined that an emergency existed and a second level of damages where a medical professional determined that an emergency did not exist awards the latter damages when no medical professional opinion was obtained.
http://media.ca11.uscourts.gov/opinions/pub/files/201413724.pdf
A no-fault insurance law that awards one level of damages where a medical professional has determined that an emergency existed and a second level of damages where a medical professional determined that an emergency did not exist awards the latter damages when no medical professional opinion was obtained.
http://media.ca11.uscourts.gov/opinions/pub/files/201413724.pdf
Eleventh Circuit: Brad Buehrle v. City of Key West
First Amendment - Tattoos
Where the designs are not rote application of standardized designs, making tattoos is a form of expression protected by the First Amendment.
No proof in record that allowing tattoo shops would injure neighborhood's character or harm tourism.
Quoting Jimmy Buffett does not suffice.
http://media.ca11.uscourts.gov/opinions/pub/files/201415354.pdf
Where the designs are not rote application of standardized designs, making tattoos is a form of expression protected by the First Amendment.
No proof in record that allowing tattoo shops would injure neighborhood's character or harm tourism.
Quoting Jimmy Buffett does not suffice.
http://media.ca11.uscourts.gov/opinions/pub/files/201415354.pdf
Tenth Circuit: Jones v. Norton
S1983 -- Fourth Amendment.
Where the forensic evidence tends to indicate that the plaintiff's theory of the incident is not supported, summary judgment for the deft is appropriate.
Treaty with the tribe does not confer a right that can be remedied by S1983, as the treaty right of action lies only against the USA.
Assertions of general racism against tribe members were insufficient to prevent summary judgment on conspiracy.
Motions to amend state law tort IIED claims were either untimely by the scheduling order or would not have related back.
No spoiliaton, as FBI had custody, and police manipulation of corpse was immaterial.
As plaintiffs did not timely object to magistrate's order of costs, it is not appealable.
https://www.ca10.uscourts.gov/opinions/14/14-4040.pdf
Where the forensic evidence tends to indicate that the plaintiff's theory of the incident is not supported, summary judgment for the deft is appropriate.
Treaty with the tribe does not confer a right that can be remedied by S1983, as the treaty right of action lies only against the USA.
Assertions of general racism against tribe members were insufficient to prevent summary judgment on conspiracy.
Motions to amend state law tort IIED claims were either untimely by the scheduling order or would not have related back.
No spoiliaton, as FBI had custody, and police manipulation of corpse was immaterial.
As plaintiffs did not timely object to magistrate's order of costs, it is not appealable.
https://www.ca10.uscourts.gov/opinions/14/14-4040.pdf
Tenth Circuit: Shimomura v. Carlson
S1983 - TSA screeners
Qualified immunity upheld for arrest/conspiracy when an agent arrests a passenger for assault, claiming that the passenger stopped suddenly and rolled a bag backwards into the leg of a second officer following behind, who then didn't deny it. No procedural DP claim.
Dissent: As to the arresting officer, a question of material fact as to whether the elements of assault could even have been perceived.
https://www.ca10.uscourts.gov/opinions/14/14-1418.pdf
Qualified immunity upheld for arrest/conspiracy when an agent arrests a passenger for assault, claiming that the passenger stopped suddenly and rolled a bag backwards into the leg of a second officer following behind, who then didn't deny it. No procedural DP claim.
Dissent: As to the arresting officer, a question of material fact as to whether the elements of assault could even have been perceived.
https://www.ca10.uscourts.gov/opinions/14/14-1418.pdf
Tenth Circuit: Hagos v. Raemisch
Habeas - case/controversy, standing.
A Federal habeas petition presents a valid case or controversy with a valid means of redress when the collateral proceeding seeks to challenge one of two concurrent life sentences, where the second conviction is also subject to challenge, as the reversal of the conviction might affect the second collateral challenge.
https://www.ca10.uscourts.gov/opinions/14/14-1497.pdf
A Federal habeas petition presents a valid case or controversy with a valid means of redress when the collateral proceeding seeks to challenge one of two concurrent life sentences, where the second conviction is also subject to challenge, as the reversal of the conviction might affect the second collateral challenge.
https://www.ca10.uscourts.gov/opinions/14/14-1497.pdf
Tenth Circuit: United States v. Tenorio
FRE - admission of polygraph.
Deft opened the door to admission of polygraph by asserting coercion.
Not unduly prejudicial -- trial court fairly weighed.
https://www.ca10.uscourts.gov/opinions/15/15-2037.pdf
Deft opened the door to admission of polygraph by asserting coercion.
Not unduly prejudicial -- trial court fairly weighed.
https://www.ca10.uscourts.gov/opinions/15/15-2037.pdf
Tenth Circuit: United States v. Edwards
4A - Search Warrants.
An affiant's testimony that obscene photos are often accompanied by suggestive photos is insufficient basis for a search warrant for obscene photos based on the presence of suggestive photos.
Good faith exception applies, as there was no need for the issuing magistrate to see the photos, the warrant wasn't impermissibly overbroad, and no affirmative misstatements.
https://www.ca10.uscourts.gov/opinions/14/14-5083.pdf
An affiant's testimony that obscene photos are often accompanied by suggestive photos is insufficient basis for a search warrant for obscene photos based on the presence of suggestive photos.
Good faith exception applies, as there was no need for the issuing magistrate to see the photos, the warrant wasn't impermissibly overbroad, and no affirmative misstatements.
https://www.ca10.uscourts.gov/opinions/14/14-5083.pdf
Ninth Circuit: USA v. Lloyd Taylor
Statutory construction - Crim.
Federal crime of making false statements to a bank need not involve a risk of loss to the bank.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/14-50528.pdf
Federal crime of making false statements to a bank need not involve a risk of loss to the bank.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/14-50528.pdf
Ninth Circuit: Alaska Wilderness League v. Sally Jewell
Environment - Denial of En Banc
Dissent from denial:
There is no Chevron ambiguity in a statute where a fixed number of criteria are established for compliance, and findings of compliance are later accorded discretion.
ESA/CWA.
Court impermissibly allows agency to define its own scope of discretion when it allows it to define a finding of compliance as mandatory when the text does not explicitly so state.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-35866.pdf
Dissent from denial:
There is no Chevron ambiguity in a statute where a fixed number of criteria are established for compliance, and findings of compliance are later accorded discretion.
ESA/CWA.
Court impermissibly allows agency to define its own scope of discretion when it allows it to define a finding of compliance as mandatory when the text does not explicitly so state.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-35866.pdf
Ninth Circuit: Mark Oyama v. University of Hawaii
Where a university's imprimatur is a prerequisite for a specific professional certification, the university is allowed deference in matters of regulation of speech by the candidate.
A candidate in a university professional certification program is not necessarily protected under the public employee speech doctrine.
A student teacher may be removed for conduct that, in the reasonable professional judgment of the university, violates defined and established professional standards which are narrowly tailored to serve the foundational mission of the program.
Programs can look to speech as an indication of likely future conduct.
Academic dismissals do not trigger due process interests so long as they are careful and deliberate.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-16524.pdf
A candidate in a university professional certification program is not necessarily protected under the public employee speech doctrine.
A student teacher may be removed for conduct that, in the reasonable professional judgment of the university, violates defined and established professional standards which are narrowly tailored to serve the foundational mission of the program.
Programs can look to speech as an indication of likely future conduct.
Academic dismissals do not trigger due process interests so long as they are careful and deliberate.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-16524.pdf
Ninth Circuit: James McKinney v. Charles Ryan
Habeas - En banc
State courts (whether of the first instance or in final de novo review) cannot impose a causal nexus test for nonstatutory mitigating factors when deliberating a capital sentence.
On Federal collateral review, there need not be a clear indication that a state court disregarded a constitutional principle -- AEDPA language controls.
Error was not structural, but also not harmless.
Dissent:
Arizona Supreme Court review was "last instance," but not "de novo."
Presumption that state court followed law.
Court of first instance considered the mitigation.
Error did not prejudice the decision.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/09-99018.pdf
State courts (whether of the first instance or in final de novo review) cannot impose a causal nexus test for nonstatutory mitigating factors when deliberating a capital sentence.
On Federal collateral review, there need not be a clear indication that a state court disregarded a constitutional principle -- AEDPA language controls.
Error was not structural, but also not harmless.
Dissent:
Arizona Supreme Court review was "last instance," but not "de novo."
Presumption that state court followed law.
Court of first instance considered the mitigation.
Error did not prejudice the decision.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/09-99018.pdf
Ninth Circuit: Americans for Prosperity Found v. Kamala Harris
First Amendment - political contributions
Collection of donor information by state Attorney General does not risk chilling of speech, or harassment by the state or the public.
Temporary injunction barring the public disclosure of the information sustained, given the possibility that the information might be subject to mandatory statutory disclosure.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/15-55446.pdf
Collection of donor information by state Attorney General does not risk chilling of speech, or harassment by the state or the public.
Temporary injunction barring the public disclosure of the information sustained, given the possibility that the information might be subject to mandatory statutory disclosure.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/15-55446.pdf
Fifth Circuit: Yaroslav Lozovyy v. Richard Kurtz, et al
Civil procedure.
Court had discretion to accept motion to dismiss after the statutory deadline and to, without specific findings, schedule a hearing later than statute permits.
In assessing claims according to Louisiana's anti-defamation statute's summary judgment requirements, courts cannot weigh evidence, assess credibility, or determine disputed contentions of material fact.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30086-CV0.pdf
Court had discretion to accept motion to dismiss after the statutory deadline and to, without specific findings, schedule a hearing later than statute permits.
In assessing claims according to Louisiana's anti-defamation statute's summary judgment requirements, courts cannot weigh evidence, assess credibility, or determine disputed contentions of material fact.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30086-CV0.pdf
Fifth Circuit: Southwest Securities, FSB v. Milo Segner, Jr.
Bankruptcy.
Costs incurred by the Trustee in maintaining the property prior to the abandonment of the interest by the secured creditor can be surcharged to the secured creditor absent evidence of direct benefit.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41463-CV0.pdf
Costs incurred by the Trustee in maintaining the property prior to the abandonment of the interest by the secured creditor can be surcharged to the secured creditor absent evidence of direct benefit.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41463-CV0.pdf
Fourth Circuit: Joshua Rich v. US
Prisons, FTCA.
As the decision to separate certain prisoners from each other is discretionary, yet implicates considerations of public policy, suit against officials is barred under FTCA.
Claims of inadequate or omitted searches of assailants should be remanded for discovery, as they implicate claims outside of the discretionary exception.
http://www.ca4.uscourts.gov/Opinions/Published/147204.P.pdf
As the decision to separate certain prisoners from each other is discretionary, yet implicates considerations of public policy, suit against officials is barred under FTCA.
Claims of inadequate or omitted searches of assailants should be remanded for discovery, as they implicate claims outside of the discretionary exception.
http://www.ca4.uscourts.gov/Opinions/Published/147204.P.pdf
Third Circuit: Laurence Kaplan v. Saint Peter's Healthcare System
ERISA, Religion -- statutory construction.
While a church agency can maintain an exempt plan, only a church can establish one.
Plain meaning.
Surplussage, Expressio unius..., Remedial statute, Statutory context.
Other statements by same sources in legislative record undermine indications to the contrary.
IRS ruling was not a rulemaking, so only accorded persuasive deference. (Christiansen, not Skidmore)
In subsequent lawmaking that seemed to legislate against the background of a contrary interpretation, Congress never evinced a detailed knowledge of the statutory scheme.
First Amendment not implicated, as churches themselves are free to set up plans.
http://www2.ca3.uscourts.gov/opinarch/151172p.pdf
While a church agency can maintain an exempt plan, only a church can establish one.
Plain meaning.
Surplussage, Expressio unius..., Remedial statute, Statutory context.
Other statements by same sources in legislative record undermine indications to the contrary.
IRS ruling was not a rulemaking, so only accorded persuasive deference. (Christiansen, not Skidmore)
In subsequent lawmaking that seemed to legislate against the background of a contrary interpretation, Congress never evinced a detailed knowledge of the statutory scheme.
First Amendment not implicated, as churches themselves are free to set up plans.
http://www2.ca3.uscourts.gov/opinarch/151172p.pdf
Second Circuit: Mantena v. Johnson
Immigration, jurisdiction-stripping, standing.
The INA's jurisdiction-stripping provisions bar challenges to the substance of the decision, not procedural questions such as adequate notice.
When statute removes jurisdiction from a court, the correct procedure is to find subject matter jurisdiction and then determine that there is no judicially cognizable right.
When the notification of a third party is a prerequisite to the assertion of a right, a party has sufficient injury-in-fact for third-party standing upon the deprivation of notice.
Prudential standing is satisfied, as the party is asserting her own right.
Administrative definitions of standing do not touch Article III standing.
Subsequent statutory scheme altered the interest of parties, so prior administrative structure not a valid basis for deprivation of fair notice.
In the new "portability" scheme, providing notice to neither the petitioner nor the second employer violates the notice requirements.
http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/doc/14-2476_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/hilite/
The INA's jurisdiction-stripping provisions bar challenges to the substance of the decision, not procedural questions such as adequate notice.
When statute removes jurisdiction from a court, the correct procedure is to find subject matter jurisdiction and then determine that there is no judicially cognizable right.
When the notification of a third party is a prerequisite to the assertion of a right, a party has sufficient injury-in-fact for third-party standing upon the deprivation of notice.
Prudential standing is satisfied, as the party is asserting her own right.
Administrative definitions of standing do not touch Article III standing.
Subsequent statutory scheme altered the interest of parties, so prior administrative structure not a valid basis for deprivation of fair notice.
In the new "portability" scheme, providing notice to neither the petitioner nor the second employer violates the notice requirements.
http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/doc/14-2476_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/hilite/
First Circuit: Buntin v. City of Boston
Discrimination.
There is no administrative exhaustion requirement for S1981 actions.
The statute of limitations began to run with the adverse personell actions, not the written warning, as the adverse etiology had yet to crystallize.
A name-clearing hearing is not constitutionally required where the speech is not broadcast to a larger public, there is no nexus with the end of employment, and the employee did not request one.
http://media.ca1.uscourts.gov/pdf.opinions/15-1667P-01A.pdf
There is no administrative exhaustion requirement for S1981 actions.
The statute of limitations began to run with the adverse personell actions, not the written warning, as the adverse etiology had yet to crystallize.
A name-clearing hearing is not constitutionally required where the speech is not broadcast to a larger public, there is no nexus with the end of employment, and the employee did not request one.
http://media.ca1.uscourts.gov/pdf.opinions/15-1667P-01A.pdf
First Circuit: Thompson v. Lynch
Immigration
A former common-law marriage does not establish a basis for naturalization, as the law requires custody at the time of legal separation, and the end of the marriage was not legally recognized.
http://media.ca1.uscourts.gov/pdf.opinions/14-1858P-01A.pdf
A former common-law marriage does not establish a basis for naturalization, as the law requires custody at the time of legal separation, and the end of the marriage was not legally recognized.
http://media.ca1.uscourts.gov/pdf.opinions/14-1858P-01A.pdf
Federal Circuit: Rogers v. US
Takings, Property conveyance
Where the language of the deed is clear, under Florida law, no statute, policy, or fact can operate to convert an interest in fee simple for the purpose of running a railway to an easement.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-5098.Opinion.12-22-2015.1.PDF
Where the language of the deed is clear, under Florida law, no statute, policy, or fact can operate to convert an interest in fee simple for the purpose of running a railway to an easement.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-5098.Opinion.12-22-2015.1.PDF
Federal Circuit: Commil USA, LLC v. Cisco Systems, Inc.
Patent, Appellate Procedure
Retained on remand after Supreme Court review of the question whether belief of non-infringement operates as a bar to inducement liability, the Court finds no infringement - either direct or inducement - as the processes are not identical.
[Standard patent caveat: None of this is legal advice, but Patent is one of the areas in which it's not merely likely that we're wrong about this stuff, but it's almost certain that we're ludicrously off-base. -CB]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/12-1042.Opinion.12-22-2015.1.PDF
Retained on remand after Supreme Court review of the question whether belief of non-infringement operates as a bar to inducement liability, the Court finds no infringement - either direct or inducement - as the processes are not identical.
[Standard patent caveat: None of this is legal advice, but Patent is one of the areas in which it's not merely likely that we're wrong about this stuff, but it's almost certain that we're ludicrously off-base. -CB]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/12-1042.Opinion.12-22-2015.1.PDF
DC Circuit: Ayanna Blue v. District of Columbia
S1983, Title IX
A municipality's retention of an employee after an offense does not establish that the municipality is liable under S1983 for similar offenses.
Allegation of insufficient screening is not enough to state a claim for S1983.
As there was no actual notice of improper relationship during the pendency of the relationship, no Title IX violation.
School investigation is not an adequate substitute for notice of claim requirement that requires, at minimum, a written police report.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A69B5A2CB744D2E485257F2A005480B2/$file/14-7189-1590902.pdf
A municipality's retention of an employee after an offense does not establish that the municipality is liable under S1983 for similar offenses.
Allegation of insufficient screening is not enough to state a claim for S1983.
As there was no actual notice of improper relationship during the pendency of the relationship, no Title IX violation.
School investigation is not an adequate substitute for notice of claim requirement that requires, at minimum, a written police report.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A69B5A2CB744D2E485257F2A005480B2/$file/14-7189-1590902.pdf
DC Circuit: Penelope Minter v. DC
ADA
No merit to claim based on denial of accommodation, as the agency initially engaged in an interactive process and the bona fides of the claim weren't established at the time of eventual denial.
Ending of employment not a valid basis for claim of retaliation, as plaintiff has burden to prove actual connection, and not just temporal proximity.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A307330F9F02514885257F2A0054809C/$file/14-7118-1590897.pdf
No merit to claim based on denial of accommodation, as the agency initially engaged in an interactive process and the bona fides of the claim weren't established at the time of eventual denial.
Ending of employment not a valid basis for claim of retaliation, as plaintiff has burden to prove actual connection, and not just temporal proximity.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A307330F9F02514885257F2A0054809C/$file/14-7118-1590897.pdf
DC Circuit: Washington Regional Medicorp v. Sylvia Burwell
Chevron, Auer deference, rulemaking.
Where the stated intent of Congress is to implement a change, an inability to transition certain elements within the desired timeframe permits agencies to devise rules for the intersticial elements; these rules are not per se impermissible because they incorporate lapsed statutory elements of past systems.
Rules that derive from the previous statutory mandate, however, may be modified at the discretion of the agency.
A rule establishing that a value be derived from a certain other value does not require the two to be equal (or vary equally).
A rulemaking is sometimes not retroactive when the organic statute of the superseded rule has lapsed.
https://www.cadc.uscourts.gov/internet/opinions.nsf/28EC0B9175C966AF85257F2A00548088/$file/14-5330-1590892.pdf
Where the stated intent of Congress is to implement a change, an inability to transition certain elements within the desired timeframe permits agencies to devise rules for the intersticial elements; these rules are not per se impermissible because they incorporate lapsed statutory elements of past systems.
Rules that derive from the previous statutory mandate, however, may be modified at the discretion of the agency.
A rule establishing that a value be derived from a certain other value does not require the two to be equal (or vary equally).
A rulemaking is sometimes not retroactive when the organic statute of the superseded rule has lapsed.
https://www.cadc.uscourts.gov/internet/opinions.nsf/28EC0B9175C966AF85257F2A00548088/$file/14-5330-1590892.pdf
DC Circuit: Walter Jackson, Jr. v. Raymond Mabus, Jr.
Denial of amendment to military record was not arbitrary & capricious; although the written decision was perfunctory, there was sufficient basis in the record for the decision.
Denial of reconsideration reasonable.
No Due Process violation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/EBB3DC0B4C7630ED85257F2A00548069/$file/14-5224-1590906.pdf
Denial of reconsideration reasonable.
No Due Process violation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/EBB3DC0B4C7630ED85257F2A00548069/$file/14-5224-1590906.pdf
Tenth Circuit: Henderson v. Glanz
S1983 - prisons.
Appellate court cannot re-evaluate sufficiency of evidence on interlocutory appeal of denial of qualified immunity - where the court's finding is not contradicted in the record, it is presumed to be adequate.
Undisputed facts in the record that blatantly contradict the factual findings of the court on qualified immunity can be reviewed on interlocutory appeal.
As prison employee had no knowledge of the unlocked door before leaving to attend to another emergency, no denial of clearly established right.
https://www.ca10.uscourts.gov/opinions/14/14-5077.pdf
Appellate court cannot re-evaluate sufficiency of evidence on interlocutory appeal of denial of qualified immunity - where the court's finding is not contradicted in the record, it is presumed to be adequate.
Undisputed facts in the record that blatantly contradict the factual findings of the court on qualified immunity can be reviewed on interlocutory appeal.
As prison employee had no knowledge of the unlocked door before leaving to attend to another emergency, no denial of clearly established right.
https://www.ca10.uscourts.gov/opinions/14/14-5077.pdf
Eighth Circuit: United States v. Levon Dean, Jr.
Hobbs Act robbery.
Where a statute has an express nexus to interstate commerce, the actual connection can be small; in this case, it suffices that the robbery affected the victim's ability to participate in interstate drug purchases.
Sufficient connection between the crimes for a common conspiracy, but harmless error, as participants were principals in both actions.
Because victim was hit rather hard on the head, there was sufficient bodily injury for the carjacking statute - injury need not be in or near the car.
As codeft had a distinctive walk while carrying a gun, sufficient evidence for knowledge of the gun.
Intent to affect interstate drug commerce not a necessary jury instruction for conspiracy count.
Constructive possession / vehicle instruction upheld.
Hearsay evidence properly considered in sentencing.
Sentencing court's denial of de minimis sentence for counts not subject to mandatory minimums was proper, despite the fact that the court stated that it did not have the power to impose a de minimis sentence.
http://media.ca8.uscourts.gov/opndir/15/12/151263P.pdf
Where a statute has an express nexus to interstate commerce, the actual connection can be small; in this case, it suffices that the robbery affected the victim's ability to participate in interstate drug purchases.
Sufficient connection between the crimes for a common conspiracy, but harmless error, as participants were principals in both actions.
Because victim was hit rather hard on the head, there was sufficient bodily injury for the carjacking statute - injury need not be in or near the car.
As codeft had a distinctive walk while carrying a gun, sufficient evidence for knowledge of the gun.
Intent to affect interstate drug commerce not a necessary jury instruction for conspiracy count.
Constructive possession / vehicle instruction upheld.
Hearsay evidence properly considered in sentencing.
Sentencing court's denial of de minimis sentence for counts not subject to mandatory minimums was proper, despite the fact that the court stated that it did not have the power to impose a de minimis sentence.
http://media.ca8.uscourts.gov/opndir/15/12/151263P.pdf
Eighth Circuit: Bonnie Hasenwinkel v. Mosaic
FMLA.
Claim for denial of leave properly dismissed, as the maximum period of leave under the statute had already been exhausted.
As employee was incapable of returning to work, no basis for challenging ending of employment.
Although a suspension with later backpay can be the basis for an FMLA claim, plaintiff did not allege any monetary harm from the act, and it was therefore properly dismissed as a matter of law.
No material adverse action in workplace generally.
A federal statute with an express right of action cannot serve as the "public policy" basis for a state tort claim of wrongful discharge.
http://media.ca8.uscourts.gov/opndir/15/12/143786P.pdf
Claim for denial of leave properly dismissed, as the maximum period of leave under the statute had already been exhausted.
As employee was incapable of returning to work, no basis for challenging ending of employment.
Although a suspension with later backpay can be the basis for an FMLA claim, plaintiff did not allege any monetary harm from the act, and it was therefore properly dismissed as a matter of law.
No material adverse action in workplace generally.
A federal statute with an express right of action cannot serve as the "public policy" basis for a state tort claim of wrongful discharge.
http://media.ca8.uscourts.gov/opndir/15/12/143786P.pdf
Seventh Circuit: John Tate v. SCR Medical Transportation Inc
Pleading.
Court erred in dismissing a pro se complaint alleging discrimination because of gender and disability (that did not specify the disability in question) within the period of time in which a plaintiff can unilaterally amend the claim.
Court should have instructed plaintiff to amend claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-28/C:15-1447:J:Posner:aut:T:fnOp:N:1677902:S:0
Court erred in dismissing a pro se complaint alleging discrimination because of gender and disability (that did not specify the disability in question) within the period of time in which a plaintiff can unilaterally amend the claim.
Court should have instructed plaintiff to amend claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-28/C:15-1447:J:Posner:aut:T:fnOp:N:1677902:S:0
Seventh Circuit: Joshua Howard v. William Pollard
Prison overcrowding - class certification.
Denial of class certification and appointment of counsel upheld. Although presence of counsel would make the class representative a more adequate plaintiff, denial of counsel does not prejudice the consideration of class certification, as counsel is provided to prosecute the claim, not ensure the adequacy of the representative.
Per curiam.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-29/C:15-8025:J:PerCuriam:aut:T:fnOp:N:1678422:S:0
Denial of class certification and appointment of counsel upheld. Although presence of counsel would make the class representative a more adequate plaintiff, denial of counsel does not prejudice the consideration of class certification, as counsel is provided to prosecute the claim, not ensure the adequacy of the representative.
Per curiam.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-29/C:15-8025:J:PerCuriam:aut:T:fnOp:N:1678422:S:0
Fifth Circuit: Machete Productions, L.L.C. v. Heather Page, et al
S1983 - State film incentives program / First Amendment
Although removal from state to federal forum operated as a voluntary waiver of sovereign immunity, monetary damages against a state don't lie under S1983, and as the film franchise has no plans for another project, there is no basis for injunctive relief.
Qualified immunity - by requiring films to depict the state in a positive manner in order to qualify for funding, the state violated no clearly established constitutional law.
No due process violation, as the filmmaker did not have a right to the discretionary grants.
No prior restraint of speech under the Texas Constitution.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50120-CV0.pdf
Although removal from state to federal forum operated as a voluntary waiver of sovereign immunity, monetary damages against a state don't lie under S1983, and as the film franchise has no plans for another project, there is no basis for injunctive relief.
Qualified immunity - by requiring films to depict the state in a positive manner in order to qualify for funding, the state violated no clearly established constitutional law.
No due process violation, as the filmmaker did not have a right to the discretionary grants.
No prior restraint of speech under the Texas Constitution.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50120-CV0.pdf
Second Circuit: In Re: Coudert Bros. LLP
Appellate procedure, choice of law.
Where a court of appeals instructs that a lower court should apply a specific law on remand and does not mention alternative bases for judgment, the lower court is necessarily foreclosed from deciding the case on an alternative basis that makes the choice of law not dispositive.
http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/doc/14-3688_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/hilite/
Where a court of appeals instructs that a lower court should apply a specific law on remand and does not mention alternative bases for judgment, the lower court is necessarily foreclosed from deciding the case on an alternative basis that makes the choice of law not dispositive.
http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/doc/14-3688_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/hilite/
Eleventh Circuit: Miccosukee Tribe of Indians of Florida v. Billy Cypress, et al.
Tribe law - RICO, embezzlement.
No genuine issue of nonjusticibility, as the actions specified in the indictment appear to be outside of tribal law.
Itemization of fraudulent contacts is insufficient for 9(b) pleading specificity -- a theory of the specific fraud must also be outlined.
http://media.ca11.uscourts.gov/opinions/pub/files/201412115.pdf
No genuine issue of nonjusticibility, as the actions specified in the indictment appear to be outside of tribal law.
Itemization of fraudulent contacts is insufficient for 9(b) pleading specificity -- a theory of the specific fraud must also be outlined.
http://media.ca11.uscourts.gov/opinions/pub/files/201412115.pdf
Ninth Circuit: Gabriel Almanza-Arenas v. Loretta E. Lynch
Immigration - predicates. En banc.
A California vehicle theft statute describes an offense that may be committed with the specific intent to borrow the car or take the car permanently, not two offenses with distinct elements. It is therefore not categorically a crime of moral turpitude for the purposes of immigration enforcement.
Concurrence (4) - Correct according to the law, but the constant categorical/modified categorical rebalancing isn't intrinsically just.
Concurrence in J: The statute is divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/09-71415.pdf
A California vehicle theft statute describes an offense that may be committed with the specific intent to borrow the car or take the car permanently, not two offenses with distinct elements. It is therefore not categorically a crime of moral turpitude for the purposes of immigration enforcement.
Concurrence (4) - Correct according to the law, but the constant categorical/modified categorical rebalancing isn't intrinsically just.
Concurrence in J: The statute is divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/09-71415.pdf
Ninth Circuit: USA v. Samuel Navarette-Aguilar
Drugs - Sentencing, Conspiracy.
A jury cannot speculate that events outside scope of proof would have allowed the total amount of drugs to rise to the level contemplated by the statute.
Deft's witness opened the door for prior bad acts.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/14-30056.pdf
A jury cannot speculate that events outside scope of proof would have allowed the total amount of drugs to rise to the level contemplated by the statute.
Deft's witness opened the door for prior bad acts.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/14-30056.pdf
Ninth Circuit: Robert McDaniels v. Richard Kirkland
En Banc -- Habeas, Batson, scope of review
Clearly established constitutional law did not require an appeals court evaluating a collateral Batson challenge to engage in comparative juror analysis.
Court did not conflate the analysis of the prosecutors' justifications with the analysis of the trial court's acceptance of the justifications.
While the court evaluating the state writ was not compelled to engage in comparative juror analysis, comparative juror analysis in the Federal collateral challenge can reveal an unreasonable application of facts in the state proceeding.
Evidence before a state trial court not introduced at state collateral proceedings doesn't implicate Pinholster.
Remanded to panel to determine if unreasonable application of facts.
Concur (3):
No substantive change in the law in the interval requiring comparative juror analysis in state Habeas.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/24/09-17339.pdf
Clearly established constitutional law did not require an appeals court evaluating a collateral Batson challenge to engage in comparative juror analysis.
Court did not conflate the analysis of the prosecutors' justifications with the analysis of the trial court's acceptance of the justifications.
While the court evaluating the state writ was not compelled to engage in comparative juror analysis, comparative juror analysis in the Federal collateral challenge can reveal an unreasonable application of facts in the state proceeding.
Evidence before a state trial court not introduced at state collateral proceedings doesn't implicate Pinholster.
Remanded to panel to determine if unreasonable application of facts.
Concur (3):
No substantive change in the law in the interval requiring comparative juror analysis in state Habeas.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/24/09-17339.pdf
Ninth Circuit: USA v. Xochitl Cisneros-Rodriguez
Immigration, due process.
As an administrative officer can terminate an administrative proceeding in favor of a judicial proceeding, a waiver of legal representation to pursue a plausible claim of relief is invalidated by an affirmative misrepresentation by the administrative officer.
Dissent: District court made adverse credibility finding against the claim of misrepresentation. Petitioner might have otherwise obtained relief in interval.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/23/13-10645.pdf
As an administrative officer can terminate an administrative proceeding in favor of a judicial proceeding, a waiver of legal representation to pursue a plausible claim of relief is invalidated by an affirmative misrepresentation by the administrative officer.
Dissent: District court made adverse credibility finding against the claim of misrepresentation. Petitioner might have otherwise obtained relief in interval.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/23/13-10645.pdf
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
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