Insurance, Contracts
Not disclosing a change of form from sole proprietorship to corporation is not, as a matter of law, a material misrepresentation under state law when renewing an insurance policy.
Questions of duty that sound in tort implicate public policy; questions of duty involving contracts don't.
Breach of the covenant of good faith and fair dealing is not necessarily a question of fact.
https://www.ca10.uscourts.gov/opinions/14/14-2168.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.
Tenth Circuit: NLRB v. Community Health Services
Labor
Deference to NRLB award of back pay without offset for interim wage where the employee was adversely affected, but employment didn't end, so there was no explicit duty to mitigate.
Dissent: No basis in statute for the purposes outlined by the adjudication.
https://www.ca10.uscourts.gov/opinions/14/14-9614.pdf
Deference to NRLB award of back pay without offset for interim wage where the employee was adversely affected, but employment didn't end, so there was no explicit duty to mitigate.
Dissent: No basis in statute for the purposes outlined by the adjudication.
https://www.ca10.uscourts.gov/opinions/14/14-9614.pdf
Tenth Circuit: American Fidelity Assurance v. Bank of New York Mellon
FRCP, General Jurisdiction
Party waived general jurisdiction challenge, as it didn't raise it initially, and the recent S. Ct. holding in Daimler restated the already-prevailing standards for general jurisdiction.
https://www.ca10.uscourts.gov/opinions/15/15-6009.pdf
Party waived general jurisdiction challenge, as it didn't raise it initially, and the recent S. Ct. holding in Daimler restated the already-prevailing standards for general jurisdiction.
https://www.ca10.uscourts.gov/opinions/15/15-6009.pdf
Ninth Circuit: Hector Ramirez v. Loretta E. Lynch
Immigration, Predicates
State statute is not categorically an aggravated felony for immigration purposes, and the statute isn't divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/20/08-72896.pdf
State statute is not categorically an aggravated felony for immigration purposes, and the statute isn't divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/20/08-72896.pdf
Ninth Circuit: Nat'l Federation of the Blind v. United Airlines Inc.
Preemption, administration
State law claims not expressly preempted by Federal airline deregulation act, as the information kiosk at issue is an amenity peripheral to the business of transportation.
State law claims preempted by an implied field preemption manifested by a Federal regulation promulgated during the pendency of the suit.
Concurrence: no need to reach the first part of the holding.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/19/11-16240.pdf
State law claims not expressly preempted by Federal airline deregulation act, as the information kiosk at issue is an amenity peripheral to the business of transportation.
State law claims preempted by an implied field preemption manifested by a Federal regulation promulgated during the pendency of the suit.
Concurrence: no need to reach the first part of the holding.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/19/11-16240.pdf
Seventh Circuit: USA v. Julius Lawson
Crim, Brady
Single witness' testimony sufficient evidence for conviction for use of a firearm.
Jury instruction holding that deft could know of weapon either before or during the crime (proper: before) held harmless error.
Brady error in withholding of police misconduct file not material, as the officer in question provided merely forensic evidence.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-19/C:14-3276:J:Kanne:aut:T:fnOp:N:1688989:S:0
Single witness' testimony sufficient evidence for conviction for use of a firearm.
Jury instruction holding that deft could know of weapon either before or during the crime (proper: before) held harmless error.
Brady error in withholding of police misconduct file not material, as the officer in question provided merely forensic evidence.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-19/C:14-3276:J:Kanne:aut:T:fnOp:N:1688989:S:0
Seventh Circuit: Thomas Costello v. BeavEx, Incorporated
Preemption, Class Actions
Federal motor carrier act does not expressly preempt state wage law, as the purposes of the state law aren't relevant to the purposes of the Federal act.
State statute seeming to require individual assessment of plantiff's future employment doesn't categorically bar a finding of predominance for class certification.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-19/C:15-1110:J:Kanne:aut:T:fnOp:N:1689158:S:0
Federal motor carrier act does not expressly preempt state wage law, as the purposes of the state law aren't relevant to the purposes of the Federal act.
State statute seeming to require individual assessment of plantiff's future employment doesn't categorically bar a finding of predominance for class certification.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-19/C:15-1110:J:Kanne:aut:T:fnOp:N:1689158:S:0
Seventh Circuit: USA v. Rico J. Speed
Sentencing
For plain error to apply on appeal, trial court must specifically ask parties whether the main arguments in mitigation have been addressed -- a simple "anything further" doesn't suffice.
Where a condition of the sentence does not appear in the statute or guidelines, review is for abuse of discretion, not plain error.
Sentence conditions (association with those convicted of felony, consumption of alcohol, dangerous weapons) upheld.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-19/C:15-1561:J:Manion:aut:T:fnOp:N:1688655:S:0
For plain error to apply on appeal, trial court must specifically ask parties whether the main arguments in mitigation have been addressed -- a simple "anything further" doesn't suffice.
Where a condition of the sentence does not appear in the statute or guidelines, review is for abuse of discretion, not plain error.
Sentence conditions (association with those convicted of felony, consumption of alcohol, dangerous weapons) upheld.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-19/C:15-1561:J:Manion:aut:T:fnOp:N:1688655:S:0
Fifth Circuit: Jerry Hartfield v. Frank Osborne, Sheriff
Habeas
When a state prisoner's speedy trial Federal Habeas claim shifts from a pretrial Habeas to a postconviction Habeas during the pendency of the appeal, the appeals court must dismiss for lack of jurisdiction.
(The only issue in the COA was the threshold question of whether the pretrial Habeas standard for state exhaustion was met.)
http://www.ca5.uscourts.gov/opinions/pub/15/15-20275-CV0.pdf
When a state prisoner's speedy trial Federal Habeas claim shifts from a pretrial Habeas to a postconviction Habeas during the pendency of the appeal, the appeals court must dismiss for lack of jurisdiction.
(The only issue in the COA was the threshold question of whether the pretrial Habeas standard for state exhaustion was met.)
http://www.ca5.uscourts.gov/opinions/pub/15/15-20275-CV0.pdf
Third Circuit: In re: Thomas C. Wettach
Bankruptcy, Burdens
At trial, bankruptcy petitioner has production burden to show that funds transferred were used for household purposes, although the creditor still retains the burden of persuasion on the voidability of the transfer.
Burden under constructive transfer state statute is identical to the Federal.
No clear error in trial court factual findings on the transfer.
http://www2.ca3.uscourts.gov/opinarch/143140p.pdf
At trial, bankruptcy petitioner has production burden to show that funds transferred were used for household purposes, although the creditor still retains the burden of persuasion on the voidability of the transfer.
Burden under constructive transfer state statute is identical to the Federal.
No clear error in trial court factual findings on the transfer.
http://www2.ca3.uscourts.gov/opinarch/143140p.pdf
Second Circuit: T.K. v. N.Y.C. Dep’t of Educ.
IDEA
School system's refusal to discuss bullying concerns with parents was a denial of a free appropriate public education under the act.
Finding in equity that private school funds were reimbursable.
http://www.ca2.uscourts.gov/decisions/isysquery/0b6bfc4e-816c-4c93-9b12-e9c8a95d89c0/1/doc/14-3078-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0b6bfc4e-816c-4c93-9b12-e9c8a95d89c0/1/hilite/
School system's refusal to discuss bullying concerns with parents was a denial of a free appropriate public education under the act.
Finding in equity that private school funds were reimbursable.
http://www.ca2.uscourts.gov/decisions/isysquery/0b6bfc4e-816c-4c93-9b12-e9c8a95d89c0/1/doc/14-3078-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0b6bfc4e-816c-4c93-9b12-e9c8a95d89c0/1/hilite/
Federal Circuit: Nan Ya Plastics Corporation v. US
Trade, Administrative
As the plain terms of the statute permit the agency to consider any information before it in setting the rate, an unusually high benchmark does not offend the limitations of accuracy and commercial reality.
As the rate is based on a primary source, the corroboration requirement is not triggered.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1054.Opinion.1-14-2016.1.PDF
As the plain terms of the statute permit the agency to consider any information before it in setting the rate, an unusually high benchmark does not offend the limitations of accuracy and commercial reality.
As the rate is based on a primary source, the corroboration requirement is not triggered.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1054.Opinion.1-14-2016.1.PDF
DC Circuit: Douglas Huron v. Beth F. Cobert
Standing, Administrative
Absent a showing of an extraordinary circumstance, a plaintiff cannot assert Article III Standing at trial and Statutory/Procedural Standing on appeal.
https://www.cadc.uscourts.gov/internet/opinions.nsf/933D62CF9FD20DA485257F3F0052C5F1/$file/14-5042-1594112.pdf
Absent a showing of an extraordinary circumstance, a plaintiff cannot assert Article III Standing at trial and Statutory/Procedural Standing on appeal.
https://www.cadc.uscourts.gov/internet/opinions.nsf/933D62CF9FD20DA485257F3F0052C5F1/$file/14-5042-1594112.pdf
Eighth Circuit: CRP Holdings A-1, LLC v. Casey D. O'Sullivan
Property, Bankruptcy
As the unenforcable lien against a property held by a tenancy of the entirety clouded title, it was fixed for purposes of the Bankruptcy Code, and can therefore can be avoided according to the terms of the Act.
http://media.ca8.uscourts.gov/opndir/16/01/156020P.pdf
As the unenforcable lien against a property held by a tenancy of the entirety clouded title, it was fixed for purposes of the Bankruptcy Code, and can therefore can be avoided according to the terms of the Act.
http://media.ca8.uscourts.gov/opndir/16/01/156020P.pdf
Eighth Circuit: David Bonenberger v. St. Louis Metro. Police Dept.
Title VII, S1983 Conspiracy
Denial of sought-for promotion is an adverse employment action where the change would have been marked by a material change in working conditions.
Conspiracy verdict upheld where the jury might have inferred that knowledge of the discrimination demonstrated active complicity in the discrimination.
http://media.ca8.uscourts.gov/opndir/16/01/143696P.pdf
Denial of sought-for promotion is an adverse employment action where the change would have been marked by a material change in working conditions.
Conspiracy verdict upheld where the jury might have inferred that knowledge of the discrimination demonstrated active complicity in the discrimination.
http://media.ca8.uscourts.gov/opndir/16/01/143696P.pdf
Federal Circuit: Muller v. GPO
Administrative, Arbitration
Statutory time period for arbitration is a housekeeping rule, not a jurisdictional limit on the scope of arbitrablility of claim.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-3032.Opinion.1-12-2016.1.PDF
Statutory time period for arbitration is a housekeeping rule, not a jurisdictional limit on the scope of arbitrablility of claim.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-3032.Opinion.1-12-2016.1.PDF
Ninth Circuit: USA v. Estate of Wayne Hage
Property, Administrative
Water rights merely alow for access to divert the water - there are no appurtenant grazing rights implied as an easement of necessity.
Filing of government suit is not a final agency decision subject to review under the APA.
Reassigned on remand.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/13-16974.pdf
Water rights merely alow for access to divert the water - there are no appurtenant grazing rights implied as an easement of necessity.
Filing of government suit is not a final agency decision subject to review under the APA.
Reassigned on remand.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/13-16974.pdf
Eighth Circuit: United States v. Justin Janis
Tribe Law, Agency
While tribal police, as a class, are considered federal employees as a matter of law, as they are enforcing order pursuant to a contract with the BIA, the question of whether any person is acting as a tribal officer is a question of fact to be resolved at trial.
http://media.ca8.uscourts.gov/opndir/16/01/143888P.pdf
While tribal police, as a class, are considered federal employees as a matter of law, as they are enforcing order pursuant to a contract with the BIA, the question of whether any person is acting as a tribal officer is a question of fact to be resolved at trial.
http://media.ca8.uscourts.gov/opndir/16/01/143888P.pdf
Eighth Circuit: Shane Bailey v. Don Feltmann
S1983 - DP/4A
No error in grant of qualified immunity on claim of unconscionable delay in medical treatment, as there was no clearly established right under the Fourth Amendment or Due Process.
http://media.ca8.uscourts.gov/opndir/16/01/143859P.pdf
No error in grant of qualified immunity on claim of unconscionable delay in medical treatment, as there was no clearly established right under the Fourth Amendment or Due Process.
http://media.ca8.uscourts.gov/opndir/16/01/143859P.pdf
Eighth Circuit: Inoel Gonzalez Cano v. Loretta E. Lynch
Immigration
Sufficient evidence for agency finding that petitioner's social group was too ill-defined to warrant relief.
http://media.ca8.uscourts.gov/opndir/16/01/143730P.pdf
Sufficient evidence for agency finding that petitioner's social group was too ill-defined to warrant relief.
http://media.ca8.uscourts.gov/opndir/16/01/143730P.pdf
Seventh Circuit: Kelly Sonnenberg v. Amaya Group Holdings (IOM) Ltd
Statutory Construction
Anti-gambling statute does not have an implied cause of action for third parties to recover gambling losses from websites that hosted the game, but that were not the winning parties in the game.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-15/C:15-1887:J:Posner:aut:T:fnOp:N:1688160:S:0
Anti-gambling statute does not have an implied cause of action for third parties to recover gambling losses from websites that hosted the game, but that were not the winning parties in the game.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-15/C:15-1887:J:Posner:aut:T:fnOp:N:1688160:S:0
Fourth Circuit: Philip McFarland v. Wells Fargo Bank, N.A.
Contracts
Under state law, lack of a showing on substantive unconscionability of the agreement does not bar a finding of unconscionable inducement.
http://www.ca4.uscourts.gov/Opinions/Published/142126.P.pdf
Under state law, lack of a showing on substantive unconscionability of the agreement does not bar a finding of unconscionable inducement.
http://www.ca4.uscourts.gov/Opinions/Published/142126.P.pdf
Third Circuit: In Re Trump Entertainment Resorts
Labor / Bankruptcy
The Bankruptcy Code provisions referencing CBAs apply to the terms of the prior CBA left in place after the end of a prior CBA -- the District Court therefore had jurisdiction under the Code to allow modification of the terms of the agreement, subject to the close scrutiny of the court.
http://www2.ca3.uscourts.gov/opinarch/144807p.pdf
The Bankruptcy Code provisions referencing CBAs apply to the terms of the prior CBA left in place after the end of a prior CBA -- the District Court therefore had jurisdiction under the Code to allow modification of the terms of the agreement, subject to the close scrutiny of the court.
http://www2.ca3.uscourts.gov/opinarch/144807p.pdf
Federal Circuit: McCarthy v. MSPB
Administrative
Denial of motion to reopen a case when issued in the form of a letter is sufficiently final for review when the motion is based on an intervening change in the substantive law.
Where the statute gives the board the task of reopening a case, the decision of the board is subject to APA review.
As complaint phased the substantive issues but not the legal ones, insufficient exhaustion of administrative remedies.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-3072.Opinion.1-12-2016.1.PDF
Denial of motion to reopen a case when issued in the form of a letter is sufficiently final for review when the motion is based on an intervening change in the substantive law.
Where the statute gives the board the task of reopening a case, the decision of the board is subject to APA review.
As complaint phased the substantive issues but not the legal ones, insufficient exhaustion of administrative remedies.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-3072.Opinion.1-12-2016.1.PDF
Federal Circuit: Hymas v. US
Administrative
Cooperative agreements were initiated under permissible agency rulemaking and are therefore not procurement contracts subject to Tucker Act jurisdiction.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-5150.Opinion.1-12-2016.1.PDF
Cooperative agreements were initiated under permissible agency rulemaking and are therefore not procurement contracts subject to Tucker Act jurisdiction.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-5150.Opinion.1-12-2016.1.PDF
DC Circuit: R.J. Reynolds Tobacco Company v. U.S. Food and Drug Administration
Administrative
Summary judgment based on appointment of committee members with conflicts of interests was error, as the claimed harms were too remote and speculative -- there was no proof that the committee's report would prompt an eventual rulemaking, no proof of confidential disclosures, and no evidence of inappropriate shaping of the committee's report.
https://www.cadc.uscourts.gov/internet/opinions.nsf/4535A54A84790EC685257F3B0054CC05/$file/14-5226-1593800.pdf
Summary judgment based on appointment of committee members with conflicts of interests was error, as the claimed harms were too remote and speculative -- there was no proof that the committee's report would prompt an eventual rulemaking, no proof of confidential disclosures, and no evidence of inappropriate shaping of the committee's report.
https://www.cadc.uscourts.gov/internet/opinions.nsf/4535A54A84790EC685257F3B0054CC05/$file/14-5226-1593800.pdf
DC Circuit: National Security Counselors v. CIA
Fees
A bona fide corporation with an identity distinct from that of the natural person who represents it in court is eligible for fee-shifting provisions of FOIA. In house counsel presumptively distinct from corporation, despite close involvement and personal commitment.
https://www.cadc.uscourts.gov/internet/opinions.nsf/EBD08628AB46B5D185257F3B0054CBEF/$file/14-5171-1593790.pdf
A bona fide corporation with an identity distinct from that of the natural person who represents it in court is eligible for fee-shifting provisions of FOIA. In house counsel presumptively distinct from corporation, despite close involvement and personal commitment.
https://www.cadc.uscourts.gov/internet/opinions.nsf/EBD08628AB46B5D185257F3B0054CBEF/$file/14-5171-1593790.pdf
DC Circuit: Silverado Stages, Inc. v. FMCSA
Administrative
Challenge to mechanics of system for challenging material in online database insufficiently developed for review.
Auer deference to agency exempting database from regulatory process.
Notice and comment challenge to findings of safety violations waived here for not being raised in District court.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6F8CBD8F8930A7CB85257F3B0054CBD0/$file/14-1298-1593796.pdf
Challenge to mechanics of system for challenging material in online database insufficiently developed for review.
Auer deference to agency exempting database from regulatory process.
Notice and comment challenge to findings of safety violations waived here for not being raised in District court.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6F8CBD8F8930A7CB85257F3B0054CBD0/$file/14-1298-1593796.pdf
Ninth Circuit: Elton Mendoza Rizo v. Loretta E. Lynch
Immigration / Administrative
Remand to IJ doesn't make case insufficiently final for review, as IJ's remit is to provide for the possibility of voluntary departure.
Petitioner insufficiently developed claims against denial of asylum -- insufficient exhaustion.
No constitutional harm in aggressive questioning by IJ.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/14/13-74216.pdf
Remand to IJ doesn't make case insufficiently final for review, as IJ's remit is to provide for the possibility of voluntary departure.
Petitioner insufficiently developed claims against denial of asylum -- insufficient exhaustion.
No constitutional harm in aggressive questioning by IJ.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/14/13-74216.pdf
Ninth Circuit: Steve Klein v. City of Laguna Beach
S1983, Fees
Error to deny fees for S1983 action, as although nominal claims were awarded in a suit seeking compensatory damages, the primary goal of the suit was to change government policy.
No error in denial of fees under state statute, as the other party prevailed on the state law claims.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/14/13-56973.pdf
Error to deny fees for S1983 action, as although nominal claims were awarded in a suit seeking compensatory damages, the primary goal of the suit was to change government policy.
No error in denial of fees under state statute, as the other party prevailed on the state law claims.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/14/13-56973.pdf
Ninth Circuit: USA v. Christopher James
Statutory construction, Crim
Federal statute does not import state standards for the ability to consent -- fundamentally a decision for the jury.
Dissent: (Koz) No ambiguity in statute.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/14/13-10543.pdf
Federal statute does not import state standards for the ability to consent -- fundamentally a decision for the jury.
Dissent: (Koz) No ambiguity in statute.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/14/13-10543.pdf
Ninth Circuit: Grand Jury Investigation
At this hour, the Ninth has posted an opinion and an order appearing to revoke that opinion for redaction. As other cases have been posted since, we'll just link without comment to both the opinion and the order.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/14/15-50450o.pdf
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/14/15-50450.pdf
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/14/15-50450o.pdf
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/14/15-50450.pdf
Ninth Circuit: USA v. Mark Spengler
White collar, FRE
Deft can challenge exclusion of expert on appeal, even if deft didn't offer any witnesses at trial.
Exclusion of expert under Daubert/6A upheld, as even if investments were ultimately prudent, deft thought his acts fraudulent at the time.
Prosc witnesses' references to deft as fiduciary did not mislead jury.
No error in court not striking count from superseding indictment, despite the improper citation of statute and omission of willfulness element, as willfulness was alleged broadly in the indictment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/14-30042.pdf
Deft can challenge exclusion of expert on appeal, even if deft didn't offer any witnesses at trial.
Exclusion of expert under Daubert/6A upheld, as even if investments were ultimately prudent, deft thought his acts fraudulent at the time.
Prosc witnesses' references to deft as fiduciary did not mislead jury.
No error in court not striking count from superseding indictment, despite the improper citation of statute and omission of willfulness element, as willfulness was alleged broadly in the indictment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/14-30042.pdf
Ninth Circuit: Mike McGee v. China Electric Motor
Securities, Fees
No error in district court's use of lodestar as opposed to percentage of fund, but the lodestar analysis was insufficiently explained.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/13-56903.pdf
No error in district court's use of lodestar as opposed to percentage of fund, but the lodestar analysis was insufficiently explained.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/13-56903.pdf
Ninth Circuit: Steven Fue v. Marin Biter
Habeas, AEDPA
No error in denial of equitable tolling of AEDPA limit, as petitioner didn't inquire into status of state habeas for fourteen months.
Dissent: State didn't notify, policy reasons against new rule.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/12-55307.pdf
No error in denial of equitable tolling of AEDPA limit, as petitioner didn't inquire into status of state habeas for fourteen months.
Dissent: State didn't notify, policy reasons against new rule.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/12-55307.pdf
Eighth Circuit: Riceland Foods v. Don Downing
FRCP,
Res judicata effects of partial judgment below made the partial judgment sufficiently final for appeal.
A litigation-specific provision for a subset of parties in a release of claims against a larger group means that litigation-related claims against those not in the subset are not barred as a matter of law.
http://media.ca8.uscourts.gov/opndir/16/01/143758P.pdf
Res judicata effects of partial judgment below made the partial judgment sufficiently final for appeal.
A litigation-specific provision for a subset of parties in a release of claims against a larger group means that litigation-related claims against those not in the subset are not barred as a matter of law.
http://media.ca8.uscourts.gov/opndir/16/01/143758P.pdf
Eighth Circuit: Nicole Walker v. United States
Habeas, retroactive application
Plain error not relevant to collateral attack of conviction.
Case extending Apprendi to mandatory minimums isn't retroactive to cases on collateral appeal, because Apprendi itself isn't retroactive.
No constitutional error in lack of assistance of counsel during Certiorari. No statutory error, as the omission of the issue from the petition wouldn't have been ineffective assistance.
Inaccurate guess by deft counsel as to likely sentence did not make plea involuntary.
No error in safety valve counsel at trial and during appeal, denial of evidentiary hearing upheld.
http://media.ca8.uscourts.gov/opndir/16/01/143700P.pdf
Plain error not relevant to collateral attack of conviction.
Case extending Apprendi to mandatory minimums isn't retroactive to cases on collateral appeal, because Apprendi itself isn't retroactive.
No constitutional error in lack of assistance of counsel during Certiorari. No statutory error, as the omission of the issue from the petition wouldn't have been ineffective assistance.
Inaccurate guess by deft counsel as to likely sentence did not make plea involuntary.
No error in safety valve counsel at trial and during appeal, denial of evidentiary hearing upheld.
http://media.ca8.uscourts.gov/opndir/16/01/143700P.pdf
Eighth Circuit: United States v. David Tumea
Sentencing.
Within guidelines sentence upheld for weapons possession.
Supervised release condition barring possession of weapons analogues not overbroad, but specific items might be authorized by probation office.
Concurrence: BOP should provide mental health services during term of imprisonment.
http://media.ca8.uscourts.gov/opndir/16/01/143650P.pdf
Within guidelines sentence upheld for weapons possession.
Supervised release condition barring possession of weapons analogues not overbroad, but specific items might be authorized by probation office.
Concurrence: BOP should provide mental health services during term of imprisonment.
http://media.ca8.uscourts.gov/opndir/16/01/143650P.pdf
Eighth Circuit: Brent Ballinger v. Cedar County, MO
S1983
Since the state rule keeping prisoners in custody during the pendency of a state appeal while not staying the judicial order ordering their release does not apply to the procedural (direct, apparently) challenge on which the deft prevailed, he did not revert to the status of a pretrial detainee when he prevailed on appeal, and there is no constitutional harm in his being kept in solitary confinement during the state's appeal.
No per se constitutional harm in solitary confinement.
http://media.ca8.uscourts.gov/opndir/16/01/143576P.pdf
Since the state rule keeping prisoners in custody during the pendency of a state appeal while not staying the judicial order ordering their release does not apply to the procedural (direct, apparently) challenge on which the deft prevailed, he did not revert to the status of a pretrial detainee when he prevailed on appeal, and there is no constitutional harm in his being kept in solitary confinement during the state's appeal.
No per se constitutional harm in solitary confinement.
http://media.ca8.uscourts.gov/opndir/16/01/143576P.pdf
Eighth Circuit: United States v. James Robert Carlson
Analogue Act, FRE
Act not unconstitutional, per S.Ct. US.
No error in permissive inference instruction allowing jury to find knowledge of similar chemical structure of the drug based on knowledge of similar pharmacological effects, given deft's knowledge of chemical structures of the materials.
No abuse of discretion in admission of expert under Daubert, as methodological doubts go to weight of evidence and not admissibility.
Government spokesman's affirmation of industry statement that they planned to expand their distribution of unscheduled substances didn't create a defense of entrapment by estoppel.
FDCA violation established by misleading sale, not a knowing violation of the terms of the act.
No error of use of sentencing guidelines for scheduled substances as basis for sentence imposed for nonscheduled substances.
http://media.ca8.uscourts.gov/opndir/16/01/142986P.pdf
Act not unconstitutional, per S.Ct. US.
No error in permissive inference instruction allowing jury to find knowledge of similar chemical structure of the drug based on knowledge of similar pharmacological effects, given deft's knowledge of chemical structures of the materials.
No abuse of discretion in admission of expert under Daubert, as methodological doubts go to weight of evidence and not admissibility.
Government spokesman's affirmation of industry statement that they planned to expand their distribution of unscheduled substances didn't create a defense of entrapment by estoppel.
FDCA violation established by misleading sale, not a knowing violation of the terms of the act.
No error of use of sentencing guidelines for scheduled substances as basis for sentence imposed for nonscheduled substances.
http://media.ca8.uscourts.gov/opndir/16/01/142986P.pdf
Sixth Circuit: Juan Esquivel-Quintana v. Loretta E. Lynch
Immigration
Chevron deference to agency ruling that violations of a certain state law fall within the removability statute.
Rule of lenity does not control, given S. Ct. U.S. holdings.
http://www.ca6.uscourts.gov/opinions.pdf/16a0012p-06.pdf
Chevron deference to agency ruling that violations of a certain state law fall within the removability statute.
Rule of lenity does not control, given S. Ct. U.S. holdings.
http://www.ca6.uscourts.gov/opinions.pdf/16a0012p-06.pdf
Sixth Circuit: Richmond Health Facilities v. Adrianne Nichols
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 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
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
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