Patent.
Construction of claim did not bar defense that the order of operations was changed, as the construction implied the prior sequence.
De minimis differences in the two devices do not compel a finding of equivalence, as the changes should be considered relative to the portion of the device devoted to the function.
JMOL finding of no invalidity rested on an improper late construction of the claim.
(Or something like, or utterly unlike, that.)
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1437.Opinion.1-6-2016.1.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.
Federal Circuit: Reddick v. FDIC
Employment/ Administrative
An accepted offer to extend a term of employment became valid only upon the end of the previous employment, and subsequent questionable behavior by the employee therefore permitted the employer to decline to extend employment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-3188.Opinion.1-6-2016.1.PDF
An accepted offer to extend a term of employment became valid only upon the end of the previous employment, and subsequent questionable behavior by the employee therefore permitted the employer to decline to extend employment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-3188.Opinion.1-6-2016.1.PDF
Federal Circuit: Guardian Angels Med Serv. v. US
Administrative law
A contracting officer's agreement to obtain and evaluate evidence bearing on the manner of the ending of a contract makes the earlier decision non-final, and the period to challenge the decision runs from the officer's subsequent final judgment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5058.Opinion.1-6-2016.1.PDF
A contracting officer's agreement to obtain and evaluate evidence bearing on the manner of the ending of a contract makes the earlier decision non-final, and the period to challenge the decision runs from the officer's subsequent final judgment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5058.Opinion.1-6-2016.1.PDF
Federal Circuit: Haggart v. US
Class actions, fees, estoppel
Where the government is the deft in a class action under a statutory cause of action that shifts fees, it has standing to contest the fee award.
As there is a policy interest in government candor, the government is not estopped from challenging fees that it now claims to have mistakenly not opposed an an earlier proceeding.
As the government's objection was to the mechanics of the disbursement, previous acquiescence to the plan does not judicially estop it from challenging it later. (In a footnote, a note that estoppel probably doesn't apply to FG.)
Abuse of discretion for lower court to approve settlement that relied on valuations of unassessed property without any disclosure of methodology of valuation.
Uncertainty as to the precise valuations of individual claims does not bar application of the common fund doctrine.
Opt-in classes can be subject to the common fund doctrine, and as there is no statutory requirement that the class members pay fees, a fee agreement is subject to equitable challenge.
Where equitable a fee-shifting statute displaces allocation of fees under the common fund doctrine. Circuit split flagged.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-5106.Opinion.1-6-2016.1.PDF
Where the government is the deft in a class action under a statutory cause of action that shifts fees, it has standing to contest the fee award.
As there is a policy interest in government candor, the government is not estopped from challenging fees that it now claims to have mistakenly not opposed an an earlier proceeding.
As the government's objection was to the mechanics of the disbursement, previous acquiescence to the plan does not judicially estop it from challenging it later. (In a footnote, a note that estoppel probably doesn't apply to FG.)
Abuse of discretion for lower court to approve settlement that relied on valuations of unassessed property without any disclosure of methodology of valuation.
Uncertainty as to the precise valuations of individual claims does not bar application of the common fund doctrine.
Opt-in classes can be subject to the common fund doctrine, and as there is no statutory requirement that the class members pay fees, a fee agreement is subject to equitable challenge.
Where equitable a fee-shifting statute displaces allocation of fees under the common fund doctrine. Circuit split flagged.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-5106.Opinion.1-6-2016.1.PDF
Federal Circuit: In re Urbanski
Patent.
A method of hydrating fibers (or something like that) doesn't teach away from a subsequent process -- a user wanting a different composition would simply vary the hydration.
Or something like (or utterly unlike) that.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1272.Opinion.1-6-2016.1.PDF
A method of hydrating fibers (or something like that) doesn't teach away from a subsequent process -- a user wanting a different composition would simply vary the hydration.
Or something like (or utterly unlike) that.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1272.Opinion.1-6-2016.1.PDF
DC Circuit: In re: Sealed Case
Sentencing
Where one justification for a sentence condition is alleged to have been made at trial, but the condition is omitted from the written sentence, a court may offer an alternate justification for the condition in a subsequent resentencing in the same proceeding.
No abuse of discretion in ordering incarceration for violations of sentencing conditions.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CEAD7C3CAC7B86DF85257F3400539427/$file/14-3058-1592438.pdf
Where one justification for a sentence condition is alleged to have been made at trial, but the condition is omitted from the written sentence, a court may offer an alternate justification for the condition in a subsequent resentencing in the same proceeding.
No abuse of discretion in ordering incarceration for violations of sentencing conditions.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CEAD7C3CAC7B86DF85257F3400539427/$file/14-3058-1592438.pdf
Eleventh Circuit: John H. Quinlan v. Secretary, U.S. Department of Labor
OSHA
Substantial evidence for agency finding that workers were not commandeered by another contractor at the time of accident.
Where a supervisor is engaged in a violation of the act with the employee, knowledge of the violation can still be imputed to the supervisor's employer.
http://media.ca11.uscourts.gov/opinions/pub/files/201412347.pdf
Substantial evidence for agency finding that workers were not commandeered by another contractor at the time of accident.
Where a supervisor is engaged in a violation of the act with the employee, knowledge of the violation can still be imputed to the supervisor's employer.
http://media.ca11.uscourts.gov/opinions/pub/files/201412347.pdf
Ninth Circuit: Retail Digital Network v. Jacob Appelsmith
First Amendment
Marketing agency has standing to challenge content-based restrictions on commercial speech, even if the speaker is determined to be the company selling the goods or the institution serving the goods.
Content-based restrictions on speech must withstand heightened scrutiny.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/07/13-56069.pdf
Marketing agency has standing to challenge content-based restrictions on commercial speech, even if the speaker is determined to be the company selling the goods or the institution serving the goods.
Content-based restrictions on speech must withstand heightened scrutiny.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/07/13-56069.pdf
Eighth Circuit: Boniface Makundi v. Loretta E. Lynch
Immigration
When an attorney effectively withdraws from a case by nonappearance a year prior to disbarment, an agency does not abuse its discretion by denying review of evidence that might have been gathered between the effective withdrawal and the disqualification.
http://media.ca8.uscourts.gov/opndir/16/01/143684P.pdf
When an attorney effectively withdraws from a case by nonappearance a year prior to disbarment, an agency does not abuse its discretion by denying review of evidence that might have been gathered between the effective withdrawal and the disqualification.
http://media.ca8.uscourts.gov/opndir/16/01/143684P.pdf
Eighth Circuit: McCaffree Financial Corp. v. Principal Life Insurace Co.
ERISA
As the terms of the mutual fund investment were negotiated at arms length prior to any fiduciary relationship between the parties, and a winnowing of investment options and subsequent advice had insufficient nexus to protected ERISA relationships, an assertion under ERISA of excessive fees doesn't state a claim.
http://media.ca8.uscourts.gov/opndir/16/01/151007P.pdf
As the terms of the mutual fund investment were negotiated at arms length prior to any fiduciary relationship between the parties, and a winnowing of investment options and subsequent advice had insufficient nexus to protected ERISA relationships, an assertion under ERISA of excessive fees doesn't state a claim.
http://media.ca8.uscourts.gov/opndir/16/01/151007P.pdf
Eighth Circuit: United States v. Bria Daudinot
Sentencing / Crim
Where deft was told that accomplice was about to rob a bank and deft knew that accomplice had in the past been convicted for using a gun to rob a bank, sentence may be increased for the use of the firearm.
http://media.ca8.uscourts.gov/opndir/16/01/151063P.pdf
Where deft was told that accomplice was about to rob a bank and deft knew that accomplice had in the past been convicted for using a gun to rob a bank, sentence may be increased for the use of the firearm.
http://media.ca8.uscourts.gov/opndir/16/01/151063P.pdf
Seventh Circuit: John Dawkins v. USA
ACCA,
A conviction under state burglary statute that bars entry without authority is not a modified categorical predicate but a stated predicate, as precedent holds that any burglary statute barring unlawful entry qualifies.
Dissent - PF showing as to potential reliance on (career offender) residual portion of statute - review appropriate to see if the sentencing court considered it a modified categorical predicate.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-07/C:15-3667:J:PerCuriam:aut:T:fnOp:N:1683399:S:0
A conviction under state burglary statute that bars entry without authority is not a modified categorical predicate but a stated predicate, as precedent holds that any burglary statute barring unlawful entry qualifies.
Dissent - PF showing as to potential reliance on (career offender) residual portion of statute - review appropriate to see if the sentencing court considered it a modified categorical predicate.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-07/C:15-3667:J:PerCuriam:aut:T:fnOp:N:1683399:S:0
Fifth Circuit: Arbuckle Mountain Ranch of TX v. Chesapeake Energy
Class actions
Given the presumption in favor of Federal jurisdiction, where the pleadings state a claim that involves a larger class than the currently constituted class, the party contesting removal under the CAFA local controversy exception bears the burden of establishing that a sufficient percentage of the class vindicated by the claim is from a given state.
Dissent - No presumption in favor of federal jurisdiction; pleadings should be construed under state rules, which allow for a more liberal notice of claim, and therefore might conceivably limit the class to those presently involved.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10955-CV0.pdf
Given the presumption in favor of Federal jurisdiction, where the pleadings state a claim that involves a larger class than the currently constituted class, the party contesting removal under the CAFA local controversy exception bears the burden of establishing that a sufficient percentage of the class vindicated by the claim is from a given state.
Dissent - No presumption in favor of federal jurisdiction; pleadings should be construed under state rules, which allow for a more liberal notice of claim, and therefore might conceivably limit the class to those presently involved.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10955-CV0.pdf
Fifth Circuit: USA v. C. Nagin
White Collar
Although honest services wire fraud requires a bribery element under Skilling, the transaction need not be an explicit quid pro quo.
Personal monetary judgments are a legitimate form of forfeiture.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30841-CR0.pdf
Although honest services wire fraud requires a bribery element under Skilling, the transaction need not be an explicit quid pro quo.
Personal monetary judgments are a legitimate form of forfeiture.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30841-CR0.pdf
Fourth Circuit: US v. William White
Crim - Extortion
Lack of subjective 'true threat' instruction ultimately harmless error.
Claim of right to the funds owed does not bar prosecution for communicating threats of physical harm, as the threats are themselves wrongful.
As the jury was told that it was being empaneled anonymously to prevent press communication, no error in anonymous empanelment.
Telephone notes admitted on direct as present-sense impressions might have been hearsay, but harmless error.
Sentence did not inappropriately consider deft's political views.
No error in not grouping counts.
http://www.ca4.uscourts.gov/Opinions/Published/144375.P.pdf
Lack of subjective 'true threat' instruction ultimately harmless error.
Claim of right to the funds owed does not bar prosecution for communicating threats of physical harm, as the threats are themselves wrongful.
As the jury was told that it was being empaneled anonymously to prevent press communication, no error in anonymous empanelment.
Telephone notes admitted on direct as present-sense impressions might have been hearsay, but harmless error.
Sentence did not inappropriately consider deft's political views.
No error in not grouping counts.
http://www.ca4.uscourts.gov/Opinions/Published/144375.P.pdf
Fourth Circuit: US v. Jeffrey Martinovich
FRE, Sentencing.
Although trial court's interventions in questioning of witnesses were imprudent, poorly conveyed, and went beyond the pale, they do not constitute plain error, as they were not ultimately dispositive of the verdict.
Where a judge says that since good reasons must be given for variances, the sentencing guidelines are effectively compulsory -- the sentence is therefore procedurally unreasonable; further inquiry into substantive unreasonableness is foreclosed.
http://www.ca4.uscourts.gov/Opinions/Published/134828.P.pdf
Although trial court's interventions in questioning of witnesses were imprudent, poorly conveyed, and went beyond the pale, they do not constitute plain error, as they were not ultimately dispositive of the verdict.
Where a judge says that since good reasons must be given for variances, the sentencing guidelines are effectively compulsory -- the sentence is therefore procedurally unreasonable; further inquiry into substantive unreasonableness is foreclosed.
http://www.ca4.uscourts.gov/Opinions/Published/134828.P.pdf
Federal Circuit: Ford Motor Company v. US
FRCP, Administrative Law, Deference
(Complex. Here's an especially guesslike guess.)
Where a statute implements a treaty but is not the sole implementation of a treaty, a court's subsequent shift in the basis for the decision does not violate the law of the case, as there are potentially several statutes at issue.
Where more than one statute enables a rulemaking, deference can be shown to an agency's interpretation of one regulation despite law of the case to the contrary with respect to the other statute.
The differences in the means of practical implementation can make contradictory agency decisions in substantially similar cases not arbitrary/capricious.
Dissent - The second statute doesn't independently implement the treaty, so there's no deference to agency on substantive matter of interpretation - the second statute is merely procedural. No Skidmore deference on present agency interpretations, as it's not persuasive. Procedural differences don't justify different handling of identical cases.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1581.Opinion.1-4-2016.1.PDF
(Complex. Here's an especially guesslike guess.)
Where a statute implements a treaty but is not the sole implementation of a treaty, a court's subsequent shift in the basis for the decision does not violate the law of the case, as there are potentially several statutes at issue.
Where more than one statute enables a rulemaking, deference can be shown to an agency's interpretation of one regulation despite law of the case to the contrary with respect to the other statute.
The differences in the means of practical implementation can make contradictory agency decisions in substantially similar cases not arbitrary/capricious.
Dissent - The second statute doesn't independently implement the treaty, so there's no deference to agency on substantive matter of interpretation - the second statute is merely procedural. No Skidmore deference on present agency interpretations, as it's not persuasive. Procedural differences don't justify different handling of identical cases.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1581.Opinion.1-4-2016.1.PDF
Eleventh Circuit: Domineque Ray v. Alabama, DOC, et al.
Ineffective Assistance
Cursory mitigation investigation insufficiently outcome-determinative under Strickland to justify the Writ.
http://media.ca11.uscourts.gov/opinions/pub/files/201315673.pdf
Cursory mitigation investigation insufficiently outcome-determinative under Strickland to justify the Writ.
http://media.ca11.uscourts.gov/opinions/pub/files/201315673.pdf
Eleventh Circuit: In re: Kurt Timothy Franks
Johnson's retroactivity - ACCA
The Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague is not, by its terms, retroactive, and AEDPA bars a second or successive Habeas writ seeking relief based on the holding.
Dissent: Retroactive, AEDPA shouldn't bar the filing of the writ, insufficiently briefed, court should certify the question to the Supreme Court (!), divergent circuit holdings on the gatekeeper question are themselves a constitutional violation.
http://media.ca11.uscourts.gov/opinions/pub/files/201515456.ord.pdf
The Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague is not, by its terms, retroactive, and AEDPA bars a second or successive Habeas writ seeking relief based on the holding.
Dissent: Retroactive, AEDPA shouldn't bar the filing of the writ, insufficiently briefed, court should certify the question to the Supreme Court (!), divergent circuit holdings on the gatekeeper question are themselves a constitutional violation.
http://media.ca11.uscourts.gov/opinions/pub/files/201515456.ord.pdf
Eighth Circuit: Peter Kiewit Sons' v. Steven West
FRCP, Remedies
When the court has made adverse credibility findings in discovery phase, there is no error in denial of a postponement of hearing for medical reasons when no firm date for availability is offered.
Where the deft does not establish how much of the gains were devoted to expenses, no error in not reducing disgorgement for trademark violation to account for defts' expenses.
A remark in sentencing that the amount of award is enough to make plaintiff whole is not enough to establish that disgorgement was used as compensatory measure.
http://media.ca8.uscourts.gov/opndir/16/01/143461P.pdf
When the court has made adverse credibility findings in discovery phase, there is no error in denial of a postponement of hearing for medical reasons when no firm date for availability is offered.
Where the deft does not establish how much of the gains were devoted to expenses, no error in not reducing disgorgement for trademark violation to account for defts' expenses.
A remark in sentencing that the amount of award is enough to make plaintiff whole is not enough to establish that disgorgement was used as compensatory measure.
http://media.ca8.uscourts.gov/opndir/16/01/143461P.pdf
Eighth Circuit: John Gohagan v. The Cincinnati Insurance Co.
Contracts
Where anti-stacking provisions of insurance contracts fix an aggregate limit without making a distinction between general liability and per-event liability, there is no per se ambiguity in the contracts.
http://media.ca8.uscourts.gov/opndir/16/01/143454P.pdf
Where anti-stacking provisions of insurance contracts fix an aggregate limit without making a distinction between general liability and per-event liability, there is no per se ambiguity in the contracts.
http://media.ca8.uscourts.gov/opndir/16/01/143454P.pdf
Seventh Circuit: Holli Hammarquist v. United Continental Holdings
Contracts
Where a frequent flier contract allows unilateral modification of benefits, and those fliers qualifying for a frequent traveler benefit are told that the rewards will change from year to year, the airline does not breach the contract by precipitately reducing benefits.
Concurrence: There are some grounds for acceptance of unilateral offer to modify the base agreement by flying a set number of miles.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-06/C:15-1845:J:Manion:aut:T:fnOp:N:1683060:S:0
Where a frequent flier contract allows unilateral modification of benefits, and those fliers qualifying for a frequent traveler benefit are told that the rewards will change from year to year, the airline does not breach the contract by precipitately reducing benefits.
Concurrence: There are some grounds for acceptance of unilateral offer to modify the base agreement by flying a set number of miles.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-06/C:15-1845:J:Manion:aut:T:fnOp:N:1683060:S:0
Sixth Circuit: Larry Askins v. Ohio Department of Agriculture
Administrative/environment
There is no right of action under the CWA for private citizens to challenge administrative noncompliance of state regulators.
While the CWA does require that authority be withdrawn from a noncompliant regulator after a hearing, as there is no explicit requirement for a hearing, there is no right of action premised on the delay in holding a hearing.
http://www.ca6.uscourts.gov/opinions.pdf/16a0005p-06.pdf
There is no right of action under the CWA for private citizens to challenge administrative noncompliance of state regulators.
While the CWA does require that authority be withdrawn from a noncompliant regulator after a hearing, as there is no explicit requirement for a hearing, there is no right of action premised on the delay in holding a hearing.
http://www.ca6.uscourts.gov/opinions.pdf/16a0005p-06.pdf
Sixth Circuit: Nancy Marouf v. Loretta Lynch
Immigration
IJ's adverse credibility findings not supported by substantial evidence and flawed by lack of consideration of issues in translation.
C in J : No power to do de novo, though, and no mandate of asylum.
C in J : No mandate of asylum
http://www.ca6.uscourts.gov/opinions.pdf/16a0004p-06.pdf
IJ's adverse credibility findings not supported by substantial evidence and flawed by lack of consideration of issues in translation.
C in J : No power to do de novo, though, and no mandate of asylum.
C in J : No mandate of asylum
http://www.ca6.uscourts.gov/opinions.pdf/16a0004p-06.pdf
Sixth Circuit: Michael Kent v. County of Oakland
S1983 - use of force
When a first responder uses a Taser against a verbally hostile citizen in his own home with his hands held in the air and his back against the wall, denial of qualified immunity is appropriate.
Also upheld against another first responder who didn't intervene.
Community caretaker exception to 4A generally overbroad.
S1983 denial precludes governmental immunity from state statute.
http://www.ca6.uscourts.gov/opinions.pdf/16a0003p-06.pdf
When a first responder uses a Taser against a verbally hostile citizen in his own home with his hands held in the air and his back against the wall, denial of qualified immunity is appropriate.
Also upheld against another first responder who didn't intervene.
Community caretaker exception to 4A generally overbroad.
S1983 denial precludes governmental immunity from state statute.
http://www.ca6.uscourts.gov/opinions.pdf/16a0003p-06.pdf
Fifth Circuit: USA v. Rickey Benns
Restitution/Fraud
As the fraudulent mortgage application wasn't sufficiently proximate to the foreclosure loss suffered by the government lender, restitution order was inappropriate.
http://www.ca5.uscourts.gov/opinions/pub/14/14-51207-CR0.pdf
As the fraudulent mortgage application wasn't sufficiently proximate to the foreclosure loss suffered by the government lender, restitution order was inappropriate.
http://www.ca5.uscourts.gov/opinions/pub/14/14-51207-CR0.pdf
Fifth Circuit: Anh Le v. Loretta Lynch
Immigration
Although the government holds the general burden to prove that an offense is of the type that would bar relief from removal, the petitioner has the burden to establish that a legal ambiguity in the definition of the offense disqualifies it as a predicate. Split with 9 flagged.
Petitioner did not establish offense of conviction in reply.
No error in denial of reconsideration.
http://www.ca5.uscourts.gov/opinions/pub/13/13-60664-CV0.pdf
Although the government holds the general burden to prove that an offense is of the type that would bar relief from removal, the petitioner has the burden to establish that a legal ambiguity in the definition of the offense disqualifies it as a predicate. Split with 9 flagged.
Petitioner did not establish offense of conviction in reply.
No error in denial of reconsideration.
http://www.ca5.uscourts.gov/opinions/pub/13/13-60664-CV0.pdf
Fifth Circuit: Thomas Tubesing v. USA
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
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
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
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