Arbitration, dicta/holding
Since state law holds that a wrongful death action is held by the next of kin and not the decedent, a release signed by the decedent cannot compel arbitration of the claim.
Arbitration act does not preempt the state law, as the state law does not bar compelled arbitration of the claim.
Rule in earlier holding by state supreme court was an alternative holding, not dicta.
Earlier holding can be retroactive, as it was a restatement of the law, and the state courts have since retroactively applied it.
http://www.ca6.uscourts.gov/opinions.pdf/16a0011p-06.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.
Fourth Circuit: Donna Cisson v. C. R. Bard, Incorporated
FRE, Torts
No abuse of discretion in holding that compliance with a federal regulation was more prejudicial than probative in a state product liability claim, as the federal reg was a restatement of existing practices which merely required substantial compliance with similar product strategies.
Also correctly barred from punitive damages consideration, as minimal compliance wouldn't bar finding of high willfulness.
Error in allowing contents of MSDS in for the truth of the matter asserted as a list/directory, treatise, -- correct posture would have been for deft's knowledge - the difference is harmless.
No error in court's use of strict liability tort instruction as opposed to medical malpractice instruction in action involving manufacturer of medical devices.
Seven to one punitive damages ratio not constitutionally excessive.
Since the state created the right of action, state can take a percentage of the punitive award.
http://www.ca4.uscourts.gov/Opinions/Published/151102.P.pdf
No abuse of discretion in holding that compliance with a federal regulation was more prejudicial than probative in a state product liability claim, as the federal reg was a restatement of existing practices which merely required substantial compliance with similar product strategies.
Also correctly barred from punitive damages consideration, as minimal compliance wouldn't bar finding of high willfulness.
Error in allowing contents of MSDS in for the truth of the matter asserted as a list/directory, treatise, -- correct posture would have been for deft's knowledge - the difference is harmless.
No error in court's use of strict liability tort instruction as opposed to medical malpractice instruction in action involving manufacturer of medical devices.
Seven to one punitive damages ratio not constitutionally excessive.
Since the state created the right of action, state can take a percentage of the punitive award.
http://www.ca4.uscourts.gov/Opinions/Published/151102.P.pdf
Third Circuit: Josh Finkelman v. National Football League
Standing.
No Article III standing for challenge to NFL ticket prices, as no ticket was purchased, and the plaintiff didn't show that a more democratic ticketing system would have allowed him to go to the Super Bowl.
Second plaintiff who purchased ticket has no Article III standing, as he didn't attempt the lottery in additional to the premium ticket purchase, and can't therefore challenge the lottery practices, and the harm sustained by a secondary market purchase isn't the difference from face, but the unknowable difference from a ticket purchased in another version of the market.
Analogy to Twombly - facts consistent with a thing versus the thing itself.
http://www2.ca3.uscourts.gov/opinarch/151435p.pdf
No Article III standing for challenge to NFL ticket prices, as no ticket was purchased, and the plaintiff didn't show that a more democratic ticketing system would have allowed him to go to the Super Bowl.
Second plaintiff who purchased ticket has no Article III standing, as he didn't attempt the lottery in additional to the premium ticket purchase, and can't therefore challenge the lottery practices, and the harm sustained by a secondary market purchase isn't the difference from face, but the unknowable difference from a ticket purchased in another version of the market.
Analogy to Twombly - facts consistent with a thing versus the thing itself.
http://www2.ca3.uscourts.gov/opinarch/151435p.pdf
Second Circuit: Simmons v. Stanberry
Copyright- Statute of limitations
An exclusive license is identical to ownership for the purpose of the Copyright statute of limitations, which runs from the time that the initial licensee is aware of the primary infringement; the clock is not restarted by each attendant infringement.
http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/doc/14-3106_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/hilite/
An exclusive license is identical to ownership for the purpose of the Copyright statute of limitations, which runs from the time that the initial licensee is aware of the primary infringement; the clock is not restarted by each attendant infringement.
http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/doc/14-3106_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/hilite/
Seventh Circuit: USA v. Acasio Sanchez
Sentencing
Sufficient control over premises for sentencing bump, harmless error anyway.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-1356:J:Manion:aut:T:fnOp:N:1686660:S:0
Sufficient control over premises for sentencing bump, harmless error anyway.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-1356:J:Manion:aut:T:fnOp:N:1686660:S:0
Fifth Circuit: Seth B., et al v. Orleans Parish School Board
IDEA
Standard of appellate review of district court statutory review for reimbursement is mixed - facts and law.
Statute requires that local school board prove its claim in a hearing, not call a hearing to prove its claim -- the board can therefore establish its case at a timely hearing invoked by the other party.
Statute requiring the school board to establish its case doesn't shift the burden of persuasion in the district court - the claimant still must carry.
Statutory language describing third party evaluations describes the substance, not the evaluator. Private evaluations must substantially match the substantive standards of the public evaluations, despite the opacity of the regulatory criteria.
Dissent: You just made that last bit up.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30164-CV0.pdf
Standard of appellate review of district court statutory review for reimbursement is mixed - facts and law.
Statute requires that local school board prove its claim in a hearing, not call a hearing to prove its claim -- the board can therefore establish its case at a timely hearing invoked by the other party.
Statute requiring the school board to establish its case doesn't shift the burden of persuasion in the district court - the claimant still must carry.
Statutory language describing third party evaluations describes the substance, not the evaluator. Private evaluations must substantially match the substantive standards of the public evaluations, despite the opacity of the regulatory criteria.
Dissent: You just made that last bit up.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30164-CV0.pdf
Fifth Circuit: Loc 731 I.B. of T. Excavators v. Diodes, Incorporated
Securities, FRCP
Insufficiently strong inference of scienter in securities pleading, as top management was not necessarily aware of the specificities of the publicly-disclosed labor issues, early shipments would exacerbate the alleged labor troubles, and the sales of stock represented a small percentage of the executive's investments in the company.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41141-CV0.pdf
Insufficiently strong inference of scienter in securities pleading, as top management was not necessarily aware of the specificities of the publicly-disclosed labor issues, early shipments would exacerbate the alleged labor troubles, and the sales of stock represented a small percentage of the executive's investments in the company.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41141-CV0.pdf
First Circuit: Copia Communications, LLC v. AMResorts, LP
Personal Jurisdiction
Insufficient purposeful availment of things Massachusetts to hale a Jamaica-based company into Massachusetts court, as it merely received shipments from Massachusetts and signed a contract identifying the counterparty as a Massachusetts corporation with a Massachusetts address.
http://media.ca1.uscourts.gov/pdf.opinions/15-1330P-01A.pdf
Insufficient purposeful availment of things Massachusetts to hale a Jamaica-based company into Massachusetts court, as it merely received shipments from Massachusetts and signed a contract identifying the counterparty as a Massachusetts corporation with a Massachusetts address.
http://media.ca1.uscourts.gov/pdf.opinions/15-1330P-01A.pdf
First Circuit: Giroux v. Federal National Mortgage
FRCP
Court does not violate the FRCP by summary denial of a 60(b) motion.
New evidence that is merely cumulative to past assertions is not a basis for a 60(b)2 motion.
Fraud in the foreclosure is distinct from fraud in the litigation, and therefore not a basis for a 60(b)3 motion.
Except in cases of willful default, a summary denial of a 60(b)6 motion on res judicata grounds doesn't violate the FRCP.
http://media.ca1.uscourts.gov/pdf.opinions/15-1270P-01A.pdf
Court does not violate the FRCP by summary denial of a 60(b) motion.
New evidence that is merely cumulative to past assertions is not a basis for a 60(b)2 motion.
Fraud in the foreclosure is distinct from fraud in the litigation, and therefore not a basis for a 60(b)3 motion.
Except in cases of willful default, a summary denial of a 60(b)6 motion on res judicata grounds doesn't violate the FRCP.
http://media.ca1.uscourts.gov/pdf.opinions/15-1270P-01A.pdf
First Circuit: Harrison v. Granite Bay Care, Inc.
FRCP, Principal Place of Business
Despite the fact that the out-of-state corporate headquarters adopts a hands-off approach to the day to day running of the company, the nerve center test designates it as the principal place of business when the overall goals of the corporation are set there and the upper management personnel decisions are made from there.
The relevant exception in the state whistleblower statute derives from the motivations of the employee, and not from his or her duties. An employee whose duties include raising concerns is not precluded from seeking relief under the statute so long as his or her intent was to raise the concern, and not just to follow a direct instruction by a superior in the corporation.
http://media.ca1.uscourts.gov/pdf.opinions/14-1988P-01A.pdf
Despite the fact that the out-of-state corporate headquarters adopts a hands-off approach to the day to day running of the company, the nerve center test designates it as the principal place of business when the overall goals of the corporation are set there and the upper management personnel decisions are made from there.
The relevant exception in the state whistleblower statute derives from the motivations of the employee, and not from his or her duties. An employee whose duties include raising concerns is not precluded from seeking relief under the statute so long as his or her intent was to raise the concern, and not just to follow a direct instruction by a superior in the corporation.
http://media.ca1.uscourts.gov/pdf.opinions/14-1988P-01A.pdf
First Circuit: Scott v. Gelb
Batson Habeas.
In holding that sufficient inference of racial discrimination at voir dire was not established by petitioner, since although the court sua sponte offered a nondiscriminatory reason for the strike, it was not generally indifferent to the racial composition of the jury, the state supreme court's denial of state Habeas was not an unreasonable application of the law.
http://media.ca1.uscourts.gov/pdf.opinions/14-1953P-01A.pdf
In holding that sufficient inference of racial discrimination at voir dire was not established by petitioner, since although the court sua sponte offered a nondiscriminatory reason for the strike, it was not generally indifferent to the racial composition of the jury, the state supreme court's denial of state Habeas was not an unreasonable application of the law.
http://media.ca1.uscourts.gov/pdf.opinions/14-1953P-01A.pdf
First Circuit: Hurtado v. Lynch
Immigration.
Quick affirmation of agency's denial of reconsideration, as arguments were available earlier but not raised in earlier proceedings.
http://media.ca1.uscourts.gov/pdf.opinions/14-1751P-01A.pdf
Quick affirmation of agency's denial of reconsideration, as arguments were available earlier but not raised in earlier proceedings.
http://media.ca1.uscourts.gov/pdf.opinions/14-1751P-01A.pdf
First Circuit: US v. Ramos-Pineiro
Trial Practice, Per Curiam (Souter on panel)
Judge's brusque comments were not evidence of plain error.
http://media.ca1.uscourts.gov/pdf.opinions/14-1462U-01A.pdf
Judge's brusque comments were not evidence of plain error.
http://media.ca1.uscourts.gov/pdf.opinions/14-1462U-01A.pdf
Federal Circuit: National Org. of Veterans Advoc. v. Secretary of Veterans Affairs.
Veterans, Administrative
Construing things in the manner most favorable to the veteran doesn't bar Chevron deference to decisions by Veterans Affairs.
Given statutory rulemaking mandate to the Secretary, rule requiring remand to agency from Board to substitute a claimant for a deceased petitioner is not arbitrary & capricious.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-7024.Opinion.1-11-2016.1.PDF
Construing things in the manner most favorable to the veteran doesn't bar Chevron deference to decisions by Veterans Affairs.
Given statutory rulemaking mandate to the Secretary, rule requiring remand to agency from Board to substitute a claimant for a deceased petitioner is not arbitrary & capricious.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-7024.Opinion.1-11-2016.1.PDF
Federal Circuit: Ethicon Endo-Surgery Inc. v. Covidien LP
Patent, Due Process
Absent claims of extrajudicial influence, no Due Process harm in the initial and final review being performed by the same panel.
Statute does not bar.
Review correctly identified innovation as obvious, as infringing prior art that incorporated the innovation was primarily marketed under other aspects.
Dissent: As statute assigns one level of adjudication to the Director and one to the Board, there must be separate panels.
[Again, we don't know many things, but we especially don't know Patent Law. Just trying for comprehensive access to slips.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1771.Opinion.1-8-2016.1.PDF
Absent claims of extrajudicial influence, no Due Process harm in the initial and final review being performed by the same panel.
Statute does not bar.
Review correctly identified innovation as obvious, as infringing prior art that incorporated the innovation was primarily marketed under other aspects.
Dissent: As statute assigns one level of adjudication to the Director and one to the Board, there must be separate panels.
[Again, we don't know many things, but we especially don't know Patent Law. Just trying for comprehensive access to slips.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1771.Opinion.1-8-2016.1.PDF
Tenth Circuit: Martin Marietta Materials v. Kansas DOT
Administrative, Procedural DP
Federal statutory requirement that changes to state agency's plan receive federal approval in order to receive certain federal funds does not create a property interest assertable by the suppliers affected by the change.
Supplier is not in privvity with contractor in contract with state government.
Being on a list of approved suppliers does not create a property interest.
No mutually explicit understanding.
No liberty interest imperiled by defamation by removal from approved supplier list, as the test results were true.
No showing of concrete harm from gov't statements.
https://www.ca10.uscourts.gov/opinions/13/13-3314.pdf
Federal statutory requirement that changes to state agency's plan receive federal approval in order to receive certain federal funds does not create a property interest assertable by the suppliers affected by the change.
Supplier is not in privvity with contractor in contract with state government.
Being on a list of approved suppliers does not create a property interest.
No mutually explicit understanding.
No liberty interest imperiled by defamation by removal from approved supplier list, as the test results were true.
No showing of concrete harm from gov't statements.
https://www.ca10.uscourts.gov/opinions/13/13-3314.pdf
Tenth Circuit: Tripodi v. Welch
FRCP, Bankruptcy
Default judgment in securities action not susceptible to attack on the basis that the notes described in the pleadings were not securities, as they are not barred as a matter of law from being considered securities.
Securities judgment properly held nondischargable in bankruptcy, as relevant nondischargablilty statute requires a judicial order or verdict.
https://www.ca10.uscourts.gov/opinions/14/14-4084.pdf
Default judgment in securities action not susceptible to attack on the basis that the notes described in the pleadings were not securities, as they are not barred as a matter of law from being considered securities.
Securities judgment properly held nondischargable in bankruptcy, as relevant nondischargablilty statute requires a judicial order or verdict.
https://www.ca10.uscourts.gov/opinions/14/14-4084.pdf
Eighth Circuit: United States v. Peter Giambalvo
Tax, Statute of Limitations, FRE
Parenthetical inclusion of offense in statute did not incorporate the statute of limitations for the offense.
Testimony as to impact of tax-avoidance book properly excluded, as subjective reliance of the deft is the sole criterion.
Statements on direct by gov't expert did not open the door to testimony about the general lack of a tax obligation, as the actual amount objectively due is immaterial to the subjective belief in the falsity of a tax filing.
The fact that a zero-income 1040 filing is possibly not a tax return as a matter of law doesn't bar a prosecution for filing a false form.
http://media.ca8.uscourts.gov/opndir/16/01/151136P.pdf
Parenthetical inclusion of offense in statute did not incorporate the statute of limitations for the offense.
Testimony as to impact of tax-avoidance book properly excluded, as subjective reliance of the deft is the sole criterion.
Statements on direct by gov't expert did not open the door to testimony about the general lack of a tax obligation, as the actual amount objectively due is immaterial to the subjective belief in the falsity of a tax filing.
The fact that a zero-income 1040 filing is possibly not a tax return as a matter of law doesn't bar a prosecution for filing a false form.
http://media.ca8.uscourts.gov/opndir/16/01/151136P.pdf
Eighth Circuit: Charles Mitchael v. Carolyn W. Colvin
SSA, FRCP
As the question of retroactive application of a claims adjudication does not present an objective nondiscretionary agency duty, Federal jurisdiction under the mandamus statute is improper.
No equal protection or due process claim, as rules on retroactive application constitute a legitimate procedural bar, and plaintiffs did not challenge constitutionality of old rule in initial proceeding.
http://media.ca8.uscourts.gov/opndir/16/01/143220P.pdf
As the question of retroactive application of a claims adjudication does not present an objective nondiscretionary agency duty, Federal jurisdiction under the mandamus statute is improper.
No equal protection or due process claim, as rules on retroactive application constitute a legitimate procedural bar, and plaintiffs did not challenge constitutionality of old rule in initial proceeding.
http://media.ca8.uscourts.gov/opndir/16/01/143220P.pdf
Seventh Circuit: Roberta Jaburek v. Anthony Foxx
FRCP, Title VII
No error in the denial of motion to reconsider grant of extension of time to file, as opposing counsel had gout.
Summary judgment against plaintiff on lack of promotion upheld, as plaintiff merely claimed that she was doing the work equivalent of the higher position, and never actually applied for the position. Comparators antedated her employment.
Insufficient definition of core tasks.
No retaliation absent proof of cognizable assertion prior to adverse action.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2165:J:Bauer:aut:T:fnOp:N:1686153:S:0
No error in the denial of motion to reconsider grant of extension of time to file, as opposing counsel had gout.
Summary judgment against plaintiff on lack of promotion upheld, as plaintiff merely claimed that she was doing the work equivalent of the higher position, and never actually applied for the position. Comparators antedated her employment.
Insufficient definition of core tasks.
No retaliation absent proof of cognizable assertion prior to adverse action.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2165:J:Bauer:aut:T:fnOp:N:1686153:S:0
Sixth Circuit: LFP IP, LLC v. Hustler Cincinnati, Inc.
Injunctions
No clear error in court holding that injunction protecting mark derived from a surname owned by one sibling to the exclusion of others can be modified to include related products.
http://www.ca6.uscourts.gov/opinions.pdf/16a0010p-06.pdf
No clear error in court holding that injunction protecting mark derived from a surname owned by one sibling to the exclusion of others can be modified to include related products.
http://www.ca6.uscourts.gov/opinions.pdf/16a0010p-06.pdf
Sixth Circuit: Donald Burniac v. Wells Fargo Bank, N.A.
FRCP
State court default judgment did not bar summary judgment for the other party upon removal to federal court, as the case was removed after the request for summary judgment, but before the formal entry by the clerk.
Federal judgment extinguished the state preliminary injunction; the preliminary injunction did not bar removal.
Statutory irregularities in foreclosure proceeding made proceeding voidable, not void. No prejudice shown.
http://www.ca6.uscourts.gov/opinions.pdf/16a0009p-06.pdf
State court default judgment did not bar summary judgment for the other party upon removal to federal court, as the case was removed after the request for summary judgment, but before the formal entry by the clerk.
Federal judgment extinguished the state preliminary injunction; the preliminary injunction did not bar removal.
Statutory irregularities in foreclosure proceeding made proceeding voidable, not void. No prejudice shown.
http://www.ca6.uscourts.gov/opinions.pdf/16a0009p-06.pdf
Fifth Circuit: Michael Cannon v. Jacobs Field Svc N Amer, Inc.
ADA
Error to grant summary judgment against ADA claim by engineer unable due to injury to lift hand above head, given the possibility that he might be able to climb ladders properly and do without medication.
Confusing procedural bit at the end on SJ on non-accommodation claim.
http://www.ca5.uscourts.gov/opinions/pub/15/15-20127-CV0.pdf
Error to grant summary judgment against ADA claim by engineer unable due to injury to lift hand above head, given the possibility that he might be able to climb ladders properly and do without medication.
Confusing procedural bit at the end on SJ on non-accommodation claim.
http://www.ca5.uscourts.gov/opinions/pub/15/15-20127-CV0.pdf
DC Circuit: USA v. Stephen Hunter
Sentencing
General opportunity to lodge objections at the end of sentencing suffices to elicit objections on the sentence - the judge need not necessarily mention the sentencing in the prompt. Circuit split flagged.
Lack of adjustment to below-guidelines sentence after vacated enhancement doesn't violate deft's rights.
Sufficient explanation for post-sentencing rehabilitation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CBEA4FF41EFCFF0085257F380053AAAB/$file/14-3046-1592959.pdf
General opportunity to lodge objections at the end of sentencing suffices to elicit objections on the sentence - the judge need not necessarily mention the sentencing in the prompt. Circuit split flagged.
Lack of adjustment to below-guidelines sentence after vacated enhancement doesn't violate deft's rights.
Sufficient explanation for post-sentencing rehabilitation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CBEA4FF41EFCFF0085257F380053AAAB/$file/14-3046-1592959.pdf
DC Circuit: Mach Mining, LLC v. Secretary of Labor
Administrative / Negligence
Substantial evidence for Commission's adjudication of high negligence, as proof of mitigations only bars the finding of high negligence in the agency's formulation of violations presented to the commission, not in the adjudications themselves.
High negligence under either standard in this case, though.
https://www.cadc.uscourts.gov/internet/opinions.nsf/3B01146121C32D7385257F380053AA90/$file/14-1266-1592965.pdf
Substantial evidence for Commission's adjudication of high negligence, as proof of mitigations only bars the finding of high negligence in the agency's formulation of violations presented to the commission, not in the adjudications themselves.
High negligence under either standard in this case, though.
https://www.cadc.uscourts.gov/internet/opinions.nsf/3B01146121C32D7385257F380053AA90/$file/14-1266-1592965.pdf
Eleventh Circuit: USA v. Antone T. Adams
ACCA
Sentence imposed under ACCA residual clause vacated on direct appeal, as state priors aren't predicates.
http://media.ca11.uscourts.gov/opinions/pub/files/201414329.pdf
Sentence imposed under ACCA residual clause vacated on direct appeal, as state priors aren't predicates.
http://media.ca11.uscourts.gov/opinions/pub/files/201414329.pdf
Eleventh Circuit: Karen Perez v. Michael Suszczynski
S1983
Denial of qualified immunity upheld where credible testimony says that decedent was prone, unresisting, and disarmed.
http://media.ca11.uscourts.gov/opinions/pub/files/201413619.pdf
Denial of qualified immunity upheld where credible testimony says that decedent was prone, unresisting, and disarmed.
http://media.ca11.uscourts.gov/opinions/pub/files/201413619.pdf
Ninth Circuit: David Reyes v. Christopher Smith
PLRA / Administrative
The exhaustion requirements are met under the PLRA where prison officials issue a decision on the merits while disregarding procedural flaws in the appeal.
As the complaint put the prison officials on notice of the full dimensions of the claim, it sufficed to exhaust administrative remedies.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/12/13-17119.pdf
The exhaustion requirements are met under the PLRA where prison officials issue a decision on the merits while disregarding procedural flaws in the appeal.
As the complaint put the prison officials on notice of the full dimensions of the claim, it sufficed to exhaust administrative remedies.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/12/13-17119.pdf
Ninth Circuit: Javier Bravo Sr. v. City of Santa Maria
S1983 / Fees
In determining the award of fees for a S1983 action, recoveries by nonparties in cases resulting from the same facts and circumstances can be considered where the outcome of the case resulted in significant public benefits.
Error not to offset the award of costs by the costs already paid.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/12/14-55557.pdf
In determining the award of fees for a S1983 action, recoveries by nonparties in cases resulting from the same facts and circumstances can be considered where the outcome of the case resulted in significant public benefits.
Error not to offset the award of costs by the costs already paid.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/12/14-55557.pdf
Ninth Circuit: USA v. Elven Swisher
First Amendment, En Banc
The Supreme Court's holding that false statements of military valor are protected under the First Amendment was a change in the substantive law, and is retroactively applicable to cases on collateral review.
The wearing of a military medal that was not granted by the armed services is an act of expressive speech, and no compelling government interest justified its criminalization.
Dissent: Wearing a medal is substantially different from saying that a medal was won. Gvt may legitimately ban.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/11-35796.pdf
The Supreme Court's holding that false statements of military valor are protected under the First Amendment was a change in the substantive law, and is retroactively applicable to cases on collateral review.
The wearing of a military medal that was not granted by the armed services is an act of expressive speech, and no compelling government interest justified its criminalization.
Dissent: Wearing a medal is substantially different from saying that a medal was won. Gvt may legitimately ban.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/11-35796.pdf
Ninth Circuit: The Center for Auto Safety v. Chrysler Corp.
FRCP
Requirement of mere good cause for sealing motions and their attachments does not turn on whether they are dispositive, but rather whether they are only tangentially related to the merits.
Concurrence: In the case at bar, the motion was dispositive as to the preliminary injunction.
Dissent: Requiring compelling interest for disclosure unless dispositive is a clearer rule, and compelled by precedent.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/15-55084.pdf
Requirement of mere good cause for sealing motions and their attachments does not turn on whether they are dispositive, but rather whether they are only tangentially related to the merits.
Concurrence: In the case at bar, the motion was dispositive as to the preliminary injunction.
Dissent: Requiring compelling interest for disclosure unless dispositive is a clearer rule, and compelled by precedent.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/15-55084.pdf
Eighth Circuit: United States v. Devord Frank Allen
Sentencing.
Sentence imposed upon revocation of supervised release is a valid predicate for the career offender sentencing enhancement.
http://media.ca8.uscourts.gov/opndir/16/01/151179P.pdf
Sentence imposed upon revocation of supervised release is a valid predicate for the career offender sentencing enhancement.
http://media.ca8.uscourts.gov/opndir/16/01/151179P.pdf
Eighth Circuit: United States v. Norman Burch
FRE
Prior consistent statement not hearsay, given variations in deft's assertions as to when the incentive to mislead began.
Witness testimony referencing excluded prior written statement wasn't sufficiently dispositive.
Sentencing - cross-referencing upheld, statutory maximum sentence less than the guidelines range presumed reasonable.
http://media.ca8.uscourts.gov/opndir/16/01/143649P.pdf
Prior consistent statement not hearsay, given variations in deft's assertions as to when the incentive to mislead began.
Witness testimony referencing excluded prior written statement wasn't sufficiently dispositive.
Sentencing - cross-referencing upheld, statutory maximum sentence less than the guidelines range presumed reasonable.
http://media.ca8.uscourts.gov/opndir/16/01/143649P.pdf
Seventh Circuit: Laura Kubiak v. City of Chicago
First Amendment
As police officer reporting assault by another officer was neither acting as a private citizen nor speaking on a matter of public concern, her subsequent demotion doesn't violate the First Amendment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:14-3074:J:Flaum:aut:T:fnOp:N:1685011:S:0
As police officer reporting assault by another officer was neither acting as a private citizen nor speaking on a matter of public concern, her subsequent demotion doesn't violate the First Amendment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:14-3074:J:Flaum:aut:T:fnOp:N:1685011:S:0
Seventh Circuit: Peter Enger v. Chicago Carriage Cab Corp.
Statutory construction/ Employment
Fares paid by taxicab riders are indirect compensation, which does not trigger state wage laws.
Unjust enrichment claim denied, as the relationship is covered by an implied contract, and state law bars unjust enrichment claims where a contract exists.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1057:J:Flaum:aut:T:fnOp:N:1685039:S:0
Fares paid by taxicab riders are indirect compensation, which does not trigger state wage laws.
Unjust enrichment claim denied, as the relationship is covered by an implied contract, and state law bars unjust enrichment claims where a contract exists.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1057:J:Flaum:aut:T:fnOp:N:1685039:S:0
Seventh Circuit: Sergio Isunza v. Loretta E. Lynch
Immigration.
Agency holding that claim was waived for not being raised earlier was not an abuse of discretion.
Substantial evidence for agency holding that, unlike some other contexts, re-entry to the USA does not begin a re-accrual of continuous presence where the earlier period of continuous presence was ended by a disqualifying conviction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1286:J:Shah:aut:T:fnOp:N:1685168:S:0
Agency holding that claim was waived for not being raised earlier was not an abuse of discretion.
Substantial evidence for agency holding that, unlike some other contexts, re-entry to the USA does not begin a re-accrual of continuous presence where the earlier period of continuous presence was ended by a disqualifying conviction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1286:J:Shah:aut:T:fnOp:N:1685168:S:0
Seventh Circuit: Delbert Heard v. Andrew Tilden
FRCP
Prior settlement agreement is not a basis for issue preclusion of subsequent claim.
Prior broad release of claim did not indemnify physicians against delay in in treatment for subsequent recurrence of chronic condition.
Where a physician is both the decisionmaker and the author of guidelines for treatment of prisoner medical conditions, an allegation against him in the former capacity states a claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1732:J:PerCuriam:aut:T:fnOp:N:1685055:S:0
Prior settlement agreement is not a basis for issue preclusion of subsequent claim.
Prior broad release of claim did not indemnify physicians against delay in in treatment for subsequent recurrence of chronic condition.
Where a physician is both the decisionmaker and the author of guidelines for treatment of prisoner medical conditions, an allegation against him in the former capacity states a claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1732:J:PerCuriam:aut:T:fnOp:N:1685055:S:0
Seventh Circuit: William I. Babchuk, M.D., P.C. v. Indiana University Health, Inc
S1983
When a state hospital suspends the privileges of a physician, there is no per se cognizable liberty or property interest imperiled by reporting the revocation to national organizations.
Where the board of a private hospital is partially appointed by the Board of Governors of a state university and the state university earns a share of the hospital's profits, the hospital is not necessarily a state actor acting under the color of state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1816:J:Posner:aut:T:fnOp:N:1684866:S:0
When a state hospital suspends the privileges of a physician, there is no per se cognizable liberty or property interest imperiled by reporting the revocation to national organizations.
Where the board of a private hospital is partially appointed by the Board of Governors of a state university and the state university earns a share of the hospital's profits, the hospital is not necessarily a state actor acting under the color of state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1816:J:Posner:aut:T:fnOp:N:1684866:S:0
Fifth Circuit: USA v. Ivan Garcia-Lopez
Fourth Amendment.
As someone might have been hiding in a hollowed-out mattress, gun found under mattress during protective sweep was properly admitted.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41392-CR0.pdf
As someone might have been hiding in a hollowed-out mattress, gun found under mattress during protective sweep was properly admitted.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41392-CR0.pdf
Fourth Circuit: Estate of Ronald Armstrong v. The Village of Pinehurst
S1983 / use of force
Qualified immunity for taser use against nonviolent resistence by arrestee (securing himself to a stop sign).
Opinion is precedential as to use of force in future, though, holding that stationary and nonviolent resistance by mentally ill arrestee not deemed a threat to others is excessive.
Concur in part: Not a 4A violation - overdeterrence.
http://www.ca4.uscourts.gov/Opinions/Published/151191.P.pdf
Qualified immunity for taser use against nonviolent resistence by arrestee (securing himself to a stop sign).
Opinion is precedential as to use of force in future, though, holding that stationary and nonviolent resistance by mentally ill arrestee not deemed a threat to others is excessive.
Concur in part: Not a 4A violation - overdeterrence.
http://www.ca4.uscourts.gov/Opinions/Published/151191.P.pdf
Fourth Circuit: Jay Bauer v. Loretta Lynch
Title VII
So long as there is an equal burden of compliance and the same level of fitness is demonstrated by the varying standards, gender-specific physical fitness guidelines do not violate Title VII.
http://www.ca4.uscourts.gov/Opinions/Published/142323.P.pdf
So long as there is an equal burden of compliance and the same level of fitness is demonstrated by the varying standards, gender-specific physical fitness guidelines do not violate Title VII.
http://www.ca4.uscourts.gov/Opinions/Published/142323.P.pdf
Fourth Circuit: Dante Askew v. HRFC, LLC
Contracts / Statutory construction
State statute merely requires that interest rates above the maximum be disclosed in the contract.
A statute of limitations that runs from discovery runs from the time that the deft knew that the interest rate was excessive under law, not from the time that deft knew of the interest rate.
Statutory notification requirement was satisfied by a letter to the consumer saying that there had been an error, and that a partial refund was due.
State statute requires refund of overpayment, not refund of all payments.
Lender's representations of nonexistent legal actions presented genuine issue of material fact.
http://www.ca4.uscourts.gov/Opinions/Published/141384.P.pdf
State statute merely requires that interest rates above the maximum be disclosed in the contract.
A statute of limitations that runs from discovery runs from the time that the deft knew that the interest rate was excessive under law, not from the time that deft knew of the interest rate.
Statutory notification requirement was satisfied by a letter to the consumer saying that there had been an error, and that a partial refund was due.
State statute requires refund of overpayment, not refund of all payments.
Lender's representations of nonexistent legal actions presented genuine issue of material fact.
http://www.ca4.uscourts.gov/Opinions/Published/141384.P.pdf
Third Circuit: Sandra Connelly v. Lane Construction Corp
FRCP, Title VII
As the discriminatory motive might ultimately either be a determining or a motivating factor, trial court erred in dismissal of the claim for lack of apparent causation in the pleading.
http://www2.ca3.uscourts.gov/opinarch/143792p.pdf
As the discriminatory motive might ultimately either be a determining or a motivating factor, trial court erred in dismissal of the claim for lack of apparent causation in the pleading.
http://www2.ca3.uscourts.gov/opinarch/143792p.pdf
Eleventh Circuit: In re: Kendall Starks
ACCA/ Johnson
Neither the Supreme Court holding that the residual clause of the ACCA was impermissibly vague nor the Supreme Court holding that a certain state offense was not a valid predicate (nor the two combined) were changes in the substantive law to be made retroactively applicable to cases on collateral review.
http://media.ca11.uscourts.gov/opinions/pub/files/201515493.pdf
Neither the Supreme Court holding that the residual clause of the ACCA was impermissibly vague nor the Supreme Court holding that a certain state offense was not a valid predicate (nor the two combined) were changes in the substantive law to be made retroactively applicable to cases on collateral review.
http://media.ca11.uscourts.gov/opinions/pub/files/201515493.pdf
Eleventh Circuit: USA v. Harlan Salmona
Plea Agreements
District court has Mandamus jurisdiction, not FRCrimP jurisdiction, over motions to enforce a plea deal.
Where a plea agreement's term of rescission allows only the revocation of use immunity, a material breach of the agreement prevents a court's subsequent enforcement under Mandamus of other guarantees.
Concurrence: Material breach justifies total rescission.
http://media.ca11.uscourts.gov/opinions/pub/files/201512569.pdf
District court has Mandamus jurisdiction, not FRCrimP jurisdiction, over motions to enforce a plea deal.
Where a plea agreement's term of rescission allows only the revocation of use immunity, a material breach of the agreement prevents a court's subsequent enforcement under Mandamus of other guarantees.
Concurrence: Material breach justifies total rescission.
http://media.ca11.uscourts.gov/opinions/pub/files/201512569.pdf
Eleventh Circuit: Yasmick Jeune v. U.S. Attorney General
Immigration
Generalized assertions of discrimination did not administratively exhaust specific claims of trauma.
As agency's classification of petitioner includes the present claim in addition to the earlier claim, both have been refuted.
Agency's consideration of internal relocation need not be geographically specific.
http://media.ca11.uscourts.gov/opinions/pub/files/201311683.pdf
Generalized assertions of discrimination did not administratively exhaust specific claims of trauma.
As agency's classification of petitioner includes the present claim in addition to the earlier claim, both have been refuted.
Agency's consideration of internal relocation need not be geographically specific.
http://media.ca11.uscourts.gov/opinions/pub/files/201311683.pdf
Ninth Circuit: Leslie Gladstone v. Bancorp
Bankruptcy
Although the surrender value of the life insurance policies was nil, a pre-petition viatical transfer for value created value that should have been disclosed in bankruptcy proceedings.
Trustee's avoidance attempt is timely, as fraud equitably tolled the statute of limitations.
Trustee should have been given leave to amend claim.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/13-55773.pdf
Although the surrender value of the life insurance policies was nil, a pre-petition viatical transfer for value created value that should have been disclosed in bankruptcy proceedings.
Trustee's avoidance attempt is timely, as fraud equitably tolled the statute of limitations.
Trustee should have been given leave to amend claim.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/13-55773.pdf
Ninth Circuit: Eden Place v. Sholem Perl
Bankruptcy / property
As the bankruptcy proceeding is final with respect to the property at issue, interlocutory appeal has jurisdiction.
A tenant's remaining within a premises during an a unlawful detainer action does not create an equitable interest in the property, as the court is ruling on the supervening question of better title.
Dissent: Insufficiently final for jurisdiction.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/14-60039.pdf
As the bankruptcy proceeding is final with respect to the property at issue, interlocutory appeal has jurisdiction.
A tenant's remaining within a premises during an a unlawful detainer action does not create an equitable interest in the property, as the court is ruling on the supervening question of better title.
Dissent: Insufficiently final for jurisdiction.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/14-60039.pdf
Eighth Circuit: Grasso Enterprises v. Express Scripts
ERISA / Injunctions
Issuance of a preliminary injunction mandating compliance with a plan interpretation is not a remedy available to plaintiffs under ERISA.
Pharmacies do not have direct standing under ERISA.
http://media.ca8.uscourts.gov/opndir/16/01/151578P.pdf
Issuance of a preliminary injunction mandating compliance with a plan interpretation is not a remedy available to plaintiffs under ERISA.
Pharmacies do not have direct standing under ERISA.
http://media.ca8.uscourts.gov/opndir/16/01/151578P.pdf
Eighth Circuit: United States v. Aemonn Alexander
ACCA predicates
State attempted second degree assault s a valid predicate, as it requires a substantial step and intent to cause physical harm.
http://media.ca8.uscourts.gov/opndir/16/01/151210P.pdf
State attempted second degree assault s a valid predicate, as it requires a substantial step and intent to cause physical harm.
http://media.ca8.uscourts.gov/opndir/16/01/151210P.pdf
Seventh Circuit: Tao Chen v. Loretta E. Lynch
Immigration.
Sufficient evidence for IJ's adverse credibility findings.
As petitioner was protesting the destruction of his property, his was an economic, not political protest, making him ineligible for asylum.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1831:J:Kanne:aut:T:fnOp:N:1684359:S:0
Seventh Circuit: Frederick Grede v. Bank of New York
Bankruptcy/fraud
Given the paucity of the banks assets, the creditor bank had sufficient inquiry notice of the fact that funds on deposit were being used for collateral and therefore cannot assert a secured claim against the Trustee's characterization of the transaction as pre-petition avoidable transfer.
As only the lien on the funds is retained, no impermissible double recovery by the Trustee, and no claim under the Code for assets transferred in good faith.
To trigger equitable subordination, the creditor must have known of the fraud, which is a higher bar than inquiry notice -- remand.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1039:J:Posner:aut:T:fnOp:N:1684393:S:0
Given the paucity of the banks assets, the creditor bank had sufficient inquiry notice of the fact that funds on deposit were being used for collateral and therefore cannot assert a secured claim against the Trustee's characterization of the transaction as pre-petition avoidable transfer.
As only the lien on the funds is retained, no impermissible double recovery by the Trustee, and no claim under the Code for assets transferred in good faith.
To trigger equitable subordination, the creditor must have known of the fraud, which is a higher bar than inquiry notice -- remand.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1039:J:Posner:aut:T:fnOp:N:1684393:S:0
Fourth Circuit: Route 231, LLC, John Carr v. Commissioner of IRS
Tax.
Fixed terms of sale and value received preclude a court from dispelling the presumption that the transfer of development tax credits to partnership was a sale.
Original factual representation of relevant tax year cannot be arbitrarily changed after recateogorization of transfer.
Year of transfer correctly determined.
http://www.ca4.uscourts.gov/Opinions/Published/141983.P.pdf
Fixed terms of sale and value received preclude a court from dispelling the presumption that the transfer of development tax credits to partnership was a sale.
Original factual representation of relevant tax year cannot be arbitrarily changed after recateogorization of transfer.
Year of transfer correctly determined.
http://www.ca4.uscourts.gov/Opinions/Published/141983.P.pdf
First Circuit: US v. Madsen
Trial practice, sentencing.
Prosecutor's close didn't misquote, comment on silence, shift burdens.
Sentencing variances sufficiently explained.
Sentence not substantively unreasonable in the totality of things, as deft planned to resell the weapons as opposed to simply serving as a straw buyer.
http://media.ca1.uscourts.gov/pdf.opinions/15-1353P-01A.pdf
Prosecutor's close didn't misquote, comment on silence, shift burdens.
Sentencing variances sufficiently explained.
Sentence not substantively unreasonable in the totality of things, as deft planned to resell the weapons as opposed to simply serving as a straw buyer.
http://media.ca1.uscourts.gov/pdf.opinions/15-1353P-01A.pdf
First Circuit: Global Tower Assets LLC v. Town of Rome
Administrative law
As planning agency's decision is subject to mandatory statutory review before another panel, the agency's decision is insufficiently final for judicial review under the relevant Federal statute.
For purposes of pleading, finality is distinct from exhaustion, which as an affirmative defense, doesn't have to be pleaded.
No procedural due process claim, as there were state avenues to challenge.
Procedure too run-of-the-mill for a procedural due process challenge.
http://media.ca1.uscourts.gov/pdf.opinions/15-1140P-01A.pdf
As planning agency's decision is subject to mandatory statutory review before another panel, the agency's decision is insufficiently final for judicial review under the relevant Federal statute.
For purposes of pleading, finality is distinct from exhaustion, which as an affirmative defense, doesn't have to be pleaded.
No procedural due process claim, as there were state avenues to challenge.
Procedure too run-of-the-mill for a procedural due process challenge.
http://media.ca1.uscourts.gov/pdf.opinions/15-1140P-01A.pdf
First Circuit: US v. Rivera-Gonzalez
Sentencing.
Sentence above the minimum for use of a firearm in the commission of a felony was a variance, not a departure.
While the court during sentencing described the sentence was concurrent, the written sentence was silent in this regard, so no violation of the rule that the sentence must be consecutive.
Substantive error challenge construed as procedural plain error challenge; court's imposition of sentence while saying that it would be unjust if served concurrently was plain error - remand for explanation/resentencing.
http://media.ca1.uscourts.gov/pdf.opinions/14-1402P-01A.pdf
Sentence above the minimum for use of a firearm in the commission of a felony was a variance, not a departure.
While the court during sentencing described the sentence was concurrent, the written sentence was silent in this regard, so no violation of the rule that the sentence must be consecutive.
Substantive error challenge construed as procedural plain error challenge; court's imposition of sentence while saying that it would be unjust if served concurrently was plain error - remand for explanation/resentencing.
http://media.ca1.uscourts.gov/pdf.opinions/14-1402P-01A.pdf
Federal Circuit: Cogburn v. McDonald
Veterans/ claims
Implicit denial rule can apply to separately-filed claims, both formal and informal.
This does not violate statutory due process protections.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-7130.Opinion.1-5-2016.1.PDF
Implicit denial rule can apply to separately-filed claims, both formal and informal.
This does not violate statutory due process protections.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-7130.Opinion.1-5-2016.1.PDF
Federal Circuit: Wi-LAN Inc. v. Apple, Inc.
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
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
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
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