Fourth Amendment
Probable cause for search of aircraft after drug dog alert.
http://media.ca8.uscourts.gov/opndir/16/01/143756P.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.
Seventh Circuit: Charles Donelson v. Randy Pfister
Administrative, Habeas
State denial of claim that witnesses were not provided during prison disciplinary proceeding due to the fact that a form was copied and sent intact as opposed to detached from the receipt portion was not an adequate and independent state ground for denial.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:14-3395:J:Hamilton:aut:T:fnOp:N:1694237:S:0
State denial of claim that witnesses were not provided during prison disciplinary proceeding due to the fact that a form was copied and sent intact as opposed to detached from the receipt portion was not an adequate and independent state ground for denial.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:14-3395:J:Hamilton:aut:T:fnOp:N:1694237:S:0
Seventh Circuit: USA v. Terry Smith
Sentencing
Substantial evidence supporting conviction.
Below-guidelines sentence vacated for insufficient explanation of reason for downward departure & conditions on supervised release.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:14-3744:J:Posner:aut:T:fnOp:N:1693902:S:0
Substantial evidence supporting conviction.
Below-guidelines sentence vacated for insufficient explanation of reason for downward departure & conditions on supervised release.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:14-3744:J:Posner:aut:T:fnOp:N:1693902:S:0
Seventh Circuit: USA v. Ambrose Clayton
Sentencing
Court did not need to consider deft's postconviction conduct at denial of resentencing, as deft did not raise postconviction behavior at sentencing, and there is no guarantee of effective counsel at that stage of appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:15-2553:J:PerCuriam:aut:T:fnOp:N:1694235:S:0
Court did not need to consider deft's postconviction conduct at denial of resentencing, as deft did not raise postconviction behavior at sentencing, and there is no guarantee of effective counsel at that stage of appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:15-2553:J:PerCuriam:aut:T:fnOp:N:1694235:S:0
Seventh Circuit: Hedeen International, LLC v. Zing Toys, Inc.
FRCP
21 Day limit for challenging personal jurisdiction isn't jurisdictional limit on subsequent motions.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-27/C:15-1749:J:Rovner:aut:T:fnOp:N:1693702:S:0
21 Day limit for challenging personal jurisdiction isn't jurisdictional limit on subsequent motions.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-27/C:15-1749:J:Rovner:aut:T:fnOp:N:1693702:S:0
Sixth Circuit: David Eaton v. Lexington-Fayette Urban County
S1983, FRCP
Summary judgment upheld against S1983 challenge to effectiveness of municipality's drug testing program.
http://www.ca6.uscourts.gov/opinions.pdf/16a0019p-06.pdf
Summary judgment upheld against S1983 challenge to effectiveness of municipality's drug testing program.
http://www.ca6.uscourts.gov/opinions.pdf/16a0019p-06.pdf
Fifth Circuit: Marilyn Garner v. Knoll, Incorporated
Bankruptcy, UCC
Although the first claim on the funds transferred into the deposit account survived any secured interest against the acount, a subsequent commingling created a burden on the Trustee to establish that the funds remained identifiable.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10274-CV0.pdf
Although the first claim on the funds transferred into the deposit account survived any secured interest against the acount, a subsequent commingling created a burden on the Trustee to establish that the funds remained identifiable.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10274-CV0.pdf
Fifth Circuit: USA v. Roberth Rojas, et al
Crim
Drug statute constitutional, extraterritorial application valid, extraterritorial application did not violate due process.
Venue was proper in the first judicial district that the defts entered. (Not Cuba.)
Insufficient connection between defts and US at time of foreign wiretap to invoke Fourth Amendment.
Many other challenges, including conspiracy exit instruction, variance from indictment.
http://www.ca5.uscourts.gov/opinions/pub/13/13-40998-CR0.pdf
Drug statute constitutional, extraterritorial application valid, extraterritorial application did not violate due process.
Venue was proper in the first judicial district that the defts entered. (Not Cuba.)
Insufficient connection between defts and US at time of foreign wiretap to invoke Fourth Amendment.
Many other challenges, including conspiracy exit instruction, variance from indictment.
http://www.ca5.uscourts.gov/opinions/pub/13/13-40998-CR0.pdf
Fourth Circuit: US v. David Williams, III
Sentencing
No procedural error in sentencing colloquy.
Sentences imposed as a result of plea agreements based on a specific rule of procedure are not appealable on grounds of substantive unreasonableness unless they expressly incorporate an element of the Guidelines. Circuit split flagged.
http://www.ca4.uscourts.gov/Opinions/Published/144680.P.pdf
No procedural error in sentencing colloquy.
Sentences imposed as a result of plea agreements based on a specific rule of procedure are not appealable on grounds of substantive unreasonableness unless they expressly incorporate an element of the Guidelines. Circuit split flagged.
http://www.ca4.uscourts.gov/Opinions/Published/144680.P.pdf
Third Circuit: In re: Dr. Lakshmi Arunachalam
FRCP
Action seeking Mandamus for judicial disqualification in patent action transferred to the Federal Circuit, as it would have jurisdiction over the final order in the action.
http://www2.ca3.uscourts.gov/opinarch/153569p.pdf
Action seeking Mandamus for judicial disqualification in patent action transferred to the Federal Circuit, as it would have jurisdiction over the final order in the action.
http://www2.ca3.uscourts.gov/opinarch/153569p.pdf
Second Circuit: Lynch v. Ackley
First Amendment, S 1983
Qualified immunity for deft in police labor dispute, as:
Telling reporters to investigate the officer's civil rights complaints was an exercise of speech rights.
Unclear as to whether filing union grievance is a matter of public concern.
No showing of sufficient nexus on free association retaliation.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/doc/14-3751_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/hilite/
Qualified immunity for deft in police labor dispute, as:
Telling reporters to investigate the officer's civil rights complaints was an exercise of speech rights.
Unclear as to whether filing union grievance is a matter of public concern.
No showing of sufficient nexus on free association retaliation.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/doc/14-3751_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/hilite/
Second Circuit: Zurich Am. Ins. Co. v. Team Tankers A.S.
Arbitration, fees
Arbitration did not disregard law.
Although arbitrator's nondisclosure if illness violated the rules of the arbitration, insufficient for vacatur.
Fee-shifting to prevailing party vacated, as consent to arbitration implies consent to challenge in court of competent jurisdiction and if it doesn't, it's unenforcable.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/doc/14-4036_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/hilite/
Arbitration did not disregard law.
Although arbitrator's nondisclosure if illness violated the rules of the arbitration, insufficient for vacatur.
Fee-shifting to prevailing party vacated, as consent to arbitration implies consent to challenge in court of competent jurisdiction and if it doesn't, it's unenforcable.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/doc/14-4036_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/hilite/
Second Circuit: Credit Suisse Secs. LLC v. Tracy, et al.
FINRA, Arbitration
FINRA arbitration code does not bar voluntary pre-dispute waiver of FINRA arbitral forum.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/doc/15-345_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/hilite/
FINRA arbitration code does not bar voluntary pre-dispute waiver of FINRA arbitral forum.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/doc/15-345_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/hilite/
First Circuit: Sena Silva v. Lynch
Immigration
No denial of Due Process when IJ denied continuance in present action to allow a challenge to an earlier action based on insufficiency of counsel.
http://media.ca1.uscourts.gov/pdf.opinions/15-1526U-01A.pdf
No denial of Due Process when IJ denied continuance in present action to allow a challenge to an earlier action based on insufficiency of counsel.
http://media.ca1.uscourts.gov/pdf.opinions/15-1526U-01A.pdf
First Circuit: US v. Peter, Jr.
Sentencing
Counsel's recitation of cooperation at sentencing establishes that judge considered it absent prosecution motion.
Insufficient proof for minor participant reduction.
Judge does not have to itemize mitigating factors at sentencing.
Substantively reasonable.
(Bit of an odd tone to this one. CB)
http://media.ca1.uscourts.gov/pdf.opinions/14-2126U-01A.pdf
Counsel's recitation of cooperation at sentencing establishes that judge considered it absent prosecution motion.
Insufficient proof for minor participant reduction.
Judge does not have to itemize mitigating factors at sentencing.
Substantively reasonable.
(Bit of an odd tone to this one. CB)
http://media.ca1.uscourts.gov/pdf.opinions/14-2126U-01A.pdf
First Circuit: Barbosa v. Mitchell
FRE
Habeas denied for Confrontation Clause challenge to the admission of expert testimony that incorporated research not subject to challenge.
Court declines to assess procedural default against petitioner for lack of contemporaneous objection that resulted in review standard of miscarriage of justice.
Admission of underlying research results themselves ruled harmless error, as the expert testimony referencing it was introduced.
http://media.ca1.uscourts.gov/pdf.opinions/14-1926P-01A.pdf
Habeas denied for Confrontation Clause challenge to the admission of expert testimony that incorporated research not subject to challenge.
Court declines to assess procedural default against petitioner for lack of contemporaneous objection that resulted in review standard of miscarriage of justice.
Admission of underlying research results themselves ruled harmless error, as the expert testimony referencing it was introduced.
http://media.ca1.uscourts.gov/pdf.opinions/14-1926P-01A.pdf
Eleventh Circuit: Johnny Overstreet, Jr. v. Warden
Ineffective assistance
Habeas for ineffective assistance on direct appeal that characterized an issue certain to require reversal as a substantial evidence challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201314995.pdf
Habeas for ineffective assistance on direct appeal that characterized an issue certain to require reversal as a substantial evidence challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201314995.pdf
Ninth Circuit: Randolph Wolfson v. Colleen Concannon
Elections, First Amendment, En banc
Strict scrutiny for judicial speech restrictions.
Compelling state interest in personal solicitations regulations for judges.
Recusal doesn't solve perception problems.
Everything upheld under strict scrutiny.
Concurrence - justifiable distinctions between sitting and nonsitting judges.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/11-17634.pdf
Strict scrutiny for judicial speech restrictions.
Compelling state interest in personal solicitations regulations for judges.
Recusal doesn't solve perception problems.
Everything upheld under strict scrutiny.
Concurrence - justifiable distinctions between sitting and nonsitting judges.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/11-17634.pdf
Ninth Circuit: Presidio Historical Assn v. Presidio Trust
Administrative, Deference
Agency's interpretation of ambiguous statute requiring equivalent rebuilding as "one up, one down" anywhere on the site is unreasonable.
Current plans for building, however, are congruent with statute.
Statute requiring agency consideration does not impose a substantive change in scrutiny on judicial review -- it merely requires that the agency demonstrate that it considered alternatives.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/13-16554.pdf
Agency's interpretation of ambiguous statute requiring equivalent rebuilding as "one up, one down" anywhere on the site is unreasonable.
Current plans for building, however, are congruent with statute.
Statute requiring agency consideration does not impose a substantive change in scrutiny on judicial review -- it merely requires that the agency demonstrate that it considered alternatives.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/13-16554.pdf
Ninth Circuit: USA v. Raul Cruz-Mendez
Sentencing
Pilot/captain enhancement upheld against fellow at tiller of small open craft.
Sentence generally not unreasonable.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/14-50154.pdf
Pilot/captain enhancement upheld against fellow at tiller of small open craft.
Sentence generally not unreasonable.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/14-50154.pdf
Ninth Circuit: Dale Bozzio v. EMI Group, LTD.
FRCP, Contracts, Corporations
Under state law, third party beneficiary might be able to state a claim for breach where the promisee is an interposed suspended corporation and the beneficiary has relinquished individual right of action against the counterparty.
Error to dismiss with prejudice, as legal uncertainty might have made amendment of claim worthwhile.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/26/13-15685.pdf
Under state law, third party beneficiary might be able to state a claim for breach where the promisee is an interposed suspended corporation and the beneficiary has relinquished individual right of action against the counterparty.
Error to dismiss with prejudice, as legal uncertainty might have made amendment of claim worthwhile.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/26/13-15685.pdf
Eighth Circuit: United States v. Brent Englehart
Fourth Amendment
When a police officer has a conversation that is at least partially consensual with a person asked to sit in the patrol car while a traffic citation is being written, if the person admits possession of contraband in he first three minutes after the ticket is written, the intrusion is de minimis.
http://media.ca8.uscourts.gov/opndir/16/01/152343P.pdf
When a police officer has a conversation that is at least partially consensual with a person asked to sit in the patrol car while a traffic citation is being written, if the person admits possession of contraband in he first three minutes after the ticket is written, the intrusion is de minimis.
http://media.ca8.uscourts.gov/opndir/16/01/152343P.pdf
Seventh Circuit: Window World of Chicagoland v. Window World, Inc.
FRCP
Where issues raised in a subsequent suit are compulsory counterclaims in a prior suit resulting in a default judgment, and the earlier decision is temporarily vacated for excusable neglect and then reinstated, claim preclusion bars the claims in the subsequent suit when the subsequent suit is administratively joined to the prior action and law of the case bars the claim if the caption numbers are joined.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-27/C:15-2224:J:Easterbrook:aut:T:fnOp:N:1693131:S:0
Where issues raised in a subsequent suit are compulsory counterclaims in a prior suit resulting in a default judgment, and the earlier decision is temporarily vacated for excusable neglect and then reinstated, claim preclusion bars the claims in the subsequent suit when the subsequent suit is administratively joined to the prior action and law of the case bars the claim if the caption numbers are joined.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-27/C:15-2224:J:Easterbrook:aut:T:fnOp:N:1693131:S:0
Seventh Circuit: Ratna Bagwe v. Sedgwick Claims Management Service
Employment, discrimination
Where rebuttal of nondiscriminatory motive includes both direct and indirect methods of proof, appellate review analyses both separately.
No direct evidence, insufficient comparators.
Small pay decision is timely, can be considered separately.
Employer response on compensation that only discussed raises suffices to challenge broad compensation argument.
Insufficient proof of retaliation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-26/C:14-3201:J:Ripple:aut:T:fnOp:N:1692303:S:0
Where rebuttal of nondiscriminatory motive includes both direct and indirect methods of proof, appellate review analyses both separately.
No direct evidence, insufficient comparators.
Small pay decision is timely, can be considered separately.
Employer response on compensation that only discussed raises suffices to challenge broad compensation argument.
Insufficient proof of retaliation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-26/C:14-3201:J:Ripple:aut:T:fnOp:N:1692303:S:0
Seventh Circuit: Estate of Harold Stuller v. USA
FRE, Tax
Barring of horse breeder's testimony under Daubert upheld, as offered to prove that the farm was intended to be run successfully, and the breeder had no knowledge of farm financing.
Poor record-keeping, extensive losses, and tax benefits accrued in horse breeding operation run by Steak & Shake franchisees sufficient for finding that the operation was not run for a profit.
Insufficient nexus of cause and timing to justify finding of untimely tax return.
Denial of corporate deduction for S corporation does not justify amendment of personal return to remove income. Or something like that.
Equitable adjustment claim forfeited.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-26/C:15-1545:J:Shah:aut:T:fnOp:N:1693035:S:0
Barring of horse breeder's testimony under Daubert upheld, as offered to prove that the farm was intended to be run successfully, and the breeder had no knowledge of farm financing.
Poor record-keeping, extensive losses, and tax benefits accrued in horse breeding operation run by Steak & Shake franchisees sufficient for finding that the operation was not run for a profit.
Insufficient nexus of cause and timing to justify finding of untimely tax return.
Denial of corporate deduction for S corporation does not justify amendment of personal return to remove income. Or something like that.
Equitable adjustment claim forfeited.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-26/C:15-1545:J:Shah:aut:T:fnOp:N:1693035:S:0
Sixth Circuit: Village Green I, GP v. Federal Nat'l Mortgage Assoc.
Bankruptcy
Bankruptcy plan is not proposed in good faith when it impairs a minor class of creditors consisting of its former legal representation by delaying payment two weeks when there is evidence of present means that make the minor debt insignificant.
http://www.ca6.uscourts.gov/opinions.pdf/16a0018p-06.pdf
Bankruptcy plan is not proposed in good faith when it impairs a minor class of creditors consisting of its former legal representation by delaying payment two weeks when there is evidence of present means that make the minor debt insignificant.
http://www.ca6.uscourts.gov/opinions.pdf/16a0018p-06.pdf
Fifth Circuit: Ambrea Fairchild v. All Amer Check Cashing, Inc.
Employment, FRE
FLSA requires actual knowledge by the employer that the emplyee is working overtime - possible discovery in computer usage records is insufficient to impute.
No abuse of discretion in barring party-opponent hearsay exception for non-workplace statement by supervisor not directly involved in the case's statement of improper reason for dismissal.
Sufficient showing of non-pretextual nondiscriminatory reason for action.
http://www.ca5.uscourts.gov/opinions/pub/15/15-60190-CV0.pdf
FLSA requires actual knowledge by the employer that the emplyee is working overtime - possible discovery in computer usage records is insufficient to impute.
No abuse of discretion in barring party-opponent hearsay exception for non-workplace statement by supervisor not directly involved in the case's statement of improper reason for dismissal.
Sufficient showing of non-pretextual nondiscriminatory reason for action.
http://www.ca5.uscourts.gov/opinions/pub/15/15-60190-CV0.pdf
Fourth Circuit: James Angell v. Stubbs & Perdue, P.A.
Bankruptcy, Retroactive application
As Bankruptcy petition changed from reorganization to liquidation subsequent to the change in the statute regulating subordination of secured debts in liquidation proceedings, administrative expenses incurred in reorganization phase cannot gain priority through the equitable subordination of secured debts.
http://www.ca4.uscourts.gov/Opinions/Published/151316.P.pdf
As Bankruptcy petition changed from reorganization to liquidation subsequent to the change in the statute regulating subordination of secured debts in liquidation proceedings, administrative expenses incurred in reorganization phase cannot gain priority through the equitable subordination of secured debts.
http://www.ca4.uscourts.gov/Opinions/Published/151316.P.pdf
Second Circuit: Friends of Animals v. Clay et al.
Administrative, environment
Statute's requirement of a specific permit for the taking of a member of a protected species is satisfied by specificity in the situation, not necessarily specificity in the species.
Employees of a multijurisdictional authority would be protected by the justification of necessity when taking animals outside the statute in order to prevent death or serious bodily harm.
Facepalm pun at peroration.
http://www.ca2.uscourts.gov/decisions/isysquery/8ff2d324-fcfa-460d-953a-74b3a3021a4f/2/doc/14-4071_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8ff2d324-fcfa-460d-953a-74b3a3021a4f/2/hilite/
Statute's requirement of a specific permit for the taking of a member of a protected species is satisfied by specificity in the situation, not necessarily specificity in the species.
Employees of a multijurisdictional authority would be protected by the justification of necessity when taking animals outside the statute in order to prevent death or serious bodily harm.
Facepalm pun at peroration.
http://www.ca2.uscourts.gov/decisions/isysquery/8ff2d324-fcfa-460d-953a-74b3a3021a4f/2/doc/14-4071_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8ff2d324-fcfa-460d-953a-74b3a3021a4f/2/hilite/
Eleventh Circuit: James Edward Hoefling, Jr. v. City of Miami, et al.
S1983
No heightened pleading for FRCP - Iqbal/Twombly prevails.
Plaintiff's attachment of police reports to complaint does not bar plaintiff from challenging substance of the reports.
Second amendement to claim for for purpose of challenging substance of previously attached reports not barred by judicial estoppel.
A S1983 municipal liability suit states a claim despite not identifying the policymaker that adopted the unconstitutional policy.
Unlawful seizure of houseboat is fourth amendment claim, not a due process claim.
http://media.ca11.uscourts.gov/opinions/pub/files/201412482.pdf
No heightened pleading for FRCP - Iqbal/Twombly prevails.
Plaintiff's attachment of police reports to complaint does not bar plaintiff from challenging substance of the reports.
Second amendement to claim for for purpose of challenging substance of previously attached reports not barred by judicial estoppel.
A S1983 municipal liability suit states a claim despite not identifying the policymaker that adopted the unconstitutional policy.
Unlawful seizure of houseboat is fourth amendment claim, not a due process claim.
http://media.ca11.uscourts.gov/opinions/pub/files/201412482.pdf
Ninth Circuit: Allen Davis v. USA
Tax
Closing agreements sound in contract, and therefore do not bar subsequent assessments to the contrary, as the tax authority is a direct exercise of statutory authority. The disparity provides a basis for challenge according to the usual means.
All members of a partnership are not parties to a settlement agreement with the Tax Partner of a partnership, so the relevant statute of limitations runs from the entry of stipulated judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/25/13-16458.pdf
Closing agreements sound in contract, and therefore do not bar subsequent assessments to the contrary, as the tax authority is a direct exercise of statutory authority. The disparity provides a basis for challenge according to the usual means.
All members of a partnership are not parties to a settlement agreement with the Tax Partner of a partnership, so the relevant statute of limitations runs from the entry of stipulated judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/25/13-16458.pdf
Fifth Circuit: USA v. Michael Gluk, et al
Securities, FRE
Error to exclude SEC report exonerating defts, as it is an administrative report made with expertise -- would not inappropriately sway jury on issues of disputed fact.
Introduction of uncharged bad behaviour incidental to the fraud should have been more carefully policed at trial.
http://www.ca5.uscourts.gov/opinions/pub/14/14-51012-CR0.pdf
Error to exclude SEC report exonerating defts, as it is an administrative report made with expertise -- would not inappropriately sway jury on issues of disputed fact.
Introduction of uncharged bad behaviour incidental to the fraud should have been more carefully policed at trial.
http://www.ca5.uscourts.gov/opinions/pub/14/14-51012-CR0.pdf
Second Circuit: Main Street Legal Services v. National Security Council
FOIA
The NSA is not an agency subject to FOIA.
The sole statutory function of the agency is to advise the President.
Precedent suggesting that it is an agency subject to FOIA derives from the time when it ran the CIA.
No additional APA jurisdiction from staff structure, Presidential directives, prior rulemmakings, etc.
Dismissal on merits proper, because the FOIA requirements are not jurisdictional but instead speak to the remedies available to the court.
Discovery properly denied, as there was no showing of eventual remedy.
"X-Files" Bonus: No caption on the Circuits's web page - just linked from a hyphen in the upper-left.
http://www.ca2.uscourts.gov/decisions/isysquery/5cfcaf68-de00-4f91-ab9b-7ae48aa36f61/1/doc/13-3792comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5cfcaf68-de00-4f91-ab9b-7ae48aa36f61/1/hilite/
The NSA is not an agency subject to FOIA.
The sole statutory function of the agency is to advise the President.
Precedent suggesting that it is an agency subject to FOIA derives from the time when it ran the CIA.
No additional APA jurisdiction from staff structure, Presidential directives, prior rulemmakings, etc.
Dismissal on merits proper, because the FOIA requirements are not jurisdictional but instead speak to the remedies available to the court.
Discovery properly denied, as there was no showing of eventual remedy.
"X-Files" Bonus: No caption on the Circuits's web page - just linked from a hyphen in the upper-left.
http://www.ca2.uscourts.gov/decisions/isysquery/5cfcaf68-de00-4f91-ab9b-7ae48aa36f61/1/doc/13-3792comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5cfcaf68-de00-4f91-ab9b-7ae48aa36f61/1/hilite/
First Circuit: Reyes-Orta v. Highway and Transportation
Free Speech, employment
Letter by co-worker sufficient proof that employer was aware of political affiliation.
Genuine issue of material fact as to whether adverse employment actions created a cause of action.
Bona fide reason for ending of employment does not mean that there is no issue of material fact as to whether the ending of employment would have happened but for the political speech.
http://media.ca1.uscourts.gov/pdf.opinions/14-2172P-01A.pdf
Letter by co-worker sufficient proof that employer was aware of political affiliation.
Genuine issue of material fact as to whether adverse employment actions created a cause of action.
Bona fide reason for ending of employment does not mean that there is no issue of material fact as to whether the ending of employment would have happened but for the political speech.
http://media.ca1.uscourts.gov/pdf.opinions/14-2172P-01A.pdf
First Circuit: Rivera-Carrasquillo v. Calderon-Lozano
Statute of Limitations
Remanded for explanation of whether SOL defense was disallowed as sanction or denied on merits and specific findings on liability.
http://media.ca1.uscourts.gov/pdf.opinions/14-1047P-01A.pdf
Remanded for explanation of whether SOL defense was disallowed as sanction or denied on merits and specific findings on liability.
http://media.ca1.uscourts.gov/pdf.opinions/14-1047P-01A.pdf
Eleventh Circuit: Murray Energy Corporation, et al. v. Secretary of Labor, et al.
Employment, safety
Agency rulemaking on mine dust upheld.
Earlier action in concert with another agency did not mandate a joint revision of the standard, as the joint action was an interim step based on another statutory provision. Stare decisis based on prior Article III review as well.
Substantively, the regulation is not an abuse of discretion.
http://media.ca11.uscourts.gov/opinions/pub/files/201411942.pdf
Agency rulemaking on mine dust upheld.
Earlier action in concert with another agency did not mandate a joint revision of the standard, as the joint action was an interim step based on another statutory provision. Stare decisis based on prior Article III review as well.
Substantively, the regulation is not an abuse of discretion.
http://media.ca11.uscourts.gov/opinions/pub/files/201411942.pdf
Eighth Circuit: James Clifford Slick Basham v. United States
Habeas, Fourth Amendment, (Plea process)
Allegedly favorable plea deal is not a bar to finding prejudice under Strickland in later collateral challenge.
No ineffective assistance Habeas for not challenging the cell phone search two years before Riley.
http://media.ca8.uscourts.gov/opndir/16/01/151980P.pdf
Allegedly favorable plea deal is not a bar to finding prejudice under Strickland in later collateral challenge.
No ineffective assistance Habeas for not challenging the cell phone search two years before Riley.
http://media.ca8.uscourts.gov/opndir/16/01/151980P.pdf
Seventh Circuit: Cesar Flores-Ramirez v. Brian Foster
Habeas
Habeas based on a de-certified court translator barred, as the claim was available at the time of first Habeas petition.
Habeas claim alleging insufficient process during initial collateral proceedings barred, as it does not allege a freestanding redressible constitutional harm in the first proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-22/C:15-1594:J:PerCuriam:aut:T:fnOp:N:1691484:S:0
Habeas based on a de-certified court translator barred, as the claim was available at the time of first Habeas petition.
Habeas claim alleging insufficient process during initial collateral proceedings barred, as it does not allege a freestanding redressible constitutional harm in the first proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-22/C:15-1594:J:PerCuriam:aut:T:fnOp:N:1691484:S:0
Sixth Circuit: USA v. Arnaldo Cabrera
Sentencing.
Twofold plain error in judges' imposition of maximum guidelines sentence due to deft's (1) not taking the stand to support his (2) theory of evidence manipulation.
http://www.ca6.uscourts.gov/opinions.pdf/16a0017p-06.pdf
Twofold plain error in judges' imposition of maximum guidelines sentence due to deft's (1) not taking the stand to support his (2) theory of evidence manipulation.
http://www.ca6.uscourts.gov/opinions.pdf/16a0017p-06.pdf
Sixth Circuit: Jason Blesedell v. Chillicothe Telephone Company
Labor, defamation
No arbitrary breach of the duty of fair representation by the union, as the lack of advocacy stemmed from union's considered adverse decisions on credibility.
No actual malice in statements about plaintiff, as conclusions were reasonable from facts.
http://www.ca6.uscourts.gov/opinions.pdf/16a0016p-06.pdf
No arbitrary breach of the duty of fair representation by the union, as the lack of advocacy stemmed from union's considered adverse decisions on credibility.
No actual malice in statements about plaintiff, as conclusions were reasonable from facts.
http://www.ca6.uscourts.gov/opinions.pdf/16a0016p-06.pdf
Fifth Circuit: Sanderson Farms, Incorporated v. OSHC
Administrative / OSHA
Presumption of hazard properly attaches in initial safety proceedings, as de minimis risk is an affirmative defense later on.
Substantial evidence for agency's abattoir citations.
Agency considered violation of a key projecting at the end of a shaft as being that of a projected shaft. The correct regulation is that regulating keys.
http://www.ca5.uscourts.gov/opinions/pub/15/15-60215-CV0.pdf
Presumption of hazard properly attaches in initial safety proceedings, as de minimis risk is an affirmative defense later on.
Substantial evidence for agency's abattoir citations.
Agency considered violation of a key projecting at the end of a shaft as being that of a projected shaft. The correct regulation is that regulating keys.
http://www.ca5.uscourts.gov/opinions/pub/15/15-60215-CV0.pdf
Second Circuit: Glatt et al. v. Fox Searchlight Pictures, Inc. et al.
Employment / Unpaid interns
No Skidmore deference to DOL definition of an employee.
Internships distinguished from employment by identifying the primary beneficiary of the relationship.
This standard bars the formation of the class due to predominance concerns.
Bonus: cameo by prominent Hollywood pillow.
http://www.ca2.uscourts.gov/decisions/isysquery/2b78c6ab-9a30-46d4-b200-629fd5966190/1/doc/13-4478a_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b78c6ab-9a30-46d4-b200-629fd5966190/1/hilite/
No Skidmore deference to DOL definition of an employee.
Internships distinguished from employment by identifying the primary beneficiary of the relationship.
This standard bars the formation of the class due to predominance concerns.
Bonus: cameo by prominent Hollywood pillow.
http://www.ca2.uscourts.gov/decisions/isysquery/2b78c6ab-9a30-46d4-b200-629fd5966190/1/doc/13-4478a_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b78c6ab-9a30-46d4-b200-629fd5966190/1/hilite/
First Circuit: Carrasquillo-Ortiz v. American Airlines, Inc.
Employment
Question certified to Puerto Rico Supreme Court as to whether the frequent transfer of employees within a single corporate entity counts for severance classification as transfers within P.R. or as international transfers.
(Translated version of relevant PR Court decision attached.)
http://media.ca1.uscourts.gov/pdf.opinions/15-1424P-01A.pdf
Question certified to Puerto Rico Supreme Court as to whether the frequent transfer of employees within a single corporate entity counts for severance classification as transfers within P.R. or as international transfers.
(Translated version of relevant PR Court decision attached.)
http://media.ca1.uscourts.gov/pdf.opinions/15-1424P-01A.pdf
First Circuit: US v. Collins
Fourth Amendment, Sentencing
As deft did not concede possession of the bag at suppression hearing, he has no standing to challenge the search of the bag found in a third party bailee's car.
Threatening with a weapon is a crime of violence for purposes of the career offender sentencing predicate.
http://media.ca1.uscourts.gov/pdf.opinions/15-1292P-01A.pdf
As deft did not concede possession of the bag at suppression hearing, he has no standing to challenge the search of the bag found in a third party bailee's car.
Threatening with a weapon is a crime of violence for purposes of the career offender sentencing predicate.
http://media.ca1.uscourts.gov/pdf.opinions/15-1292P-01A.pdf
First Circuit: US v. Soto-Rivera
Sentencing - Guidelines / Johnson / (ACCA)
Given govt stipulation that Guidelines residual clause is unconstitutionally vague Post-Johnson, an on-point note to the Guidelines doesn't save the predicate, as the note referred to an offense type that appears nowhere outside of the residual clause.
http://media.ca1.uscourts.gov/pdf.opinions/14-1216P-01A.pdf
Given govt stipulation that Guidelines residual clause is unconstitutionally vague Post-Johnson, an on-point note to the Guidelines doesn't save the predicate, as the note referred to an offense type that appears nowhere outside of the residual clause.
http://media.ca1.uscourts.gov/pdf.opinions/14-1216P-01A.pdf
Federal Circuit: Pfizer v. Lee
Patent, Procedure
Claim not waived, as it was referenced in briefs and at argument below.
The time that should have been added to the end of the patent was appropriately tolled during the interval between the notice of insufficiency and the revised notice of insufficiency, as the initial notice put the petitioner on notice of the shortcomings in the claim.
Dissent: A response to an incomplete notice might have itself been incomplete.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1265.Opinion.1-20-2016.1.PDF
Claim not waived, as it was referenced in briefs and at argument below.
The time that should have been added to the end of the patent was appropriately tolled during the interval between the notice of insufficiency and the revised notice of insufficiency, as the initial notice put the petitioner on notice of the shortcomings in the claim.
Dissent: A response to an incomplete notice might have itself been incomplete.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1265.Opinion.1-20-2016.1.PDF
Federal Circuit: Lumen View Technollgy v. FindTheBest.com
Patent, Fees
No abuse of discretion in award of fees, given ill-supported allegations of infringement.
While deterrence is to be considered in whether to award fees, it is not a permissible basis for adjusting the lodestar award.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1275.Opinion.1-20-2016.1.PDF
No abuse of discretion in award of fees, given ill-supported allegations of infringement.
While deterrence is to be considered in whether to award fees, it is not a permissible basis for adjusting the lodestar award.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1275.Opinion.1-20-2016.1.PDF
DC Circuit: Christopher Van Hollen, Jr. v. FEC
Administrative
Agency rulemaking that election contributions must be for the purpose of furthering electioneering electoral communications was a permissible and persuasive exercise of authority.
Not A&C.
Bonus: odd Yeats quote in peroration.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257F41006AF4EC/$file/15-5016-1594896.pdf
Agency rulemaking that election contributions must be for the purpose of furthering electioneering electoral communications was a permissible and persuasive exercise of authority.
Not A&C.
Bonus: odd Yeats quote in peroration.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257F41006AF4EC/$file/15-5016-1594896.pdf
DC Circuit: Jefferson Morley v. CIA
FOIA, Fees
Fees should be partially denied for FOIA proceedings that partially result in records already in the public domain only where the fees that resulted in public documents are segregable and whether the difficulties encountered militate against denial of fees.
https://www.cadc.uscourts.gov/internet/opinions.nsf/3D5B77098A5F717385257F41006AF4C8/$file/14-5230-1594919.pdf
Fees should be partially denied for FOIA proceedings that partially result in records already in the public domain only where the fees that resulted in public documents are segregable and whether the difficulties encountered militate against denial of fees.
https://www.cadc.uscourts.gov/internet/opinions.nsf/3D5B77098A5F717385257F41006AF4C8/$file/14-5230-1594919.pdf
DC Circuit: USA v. Eddie Burroughs
Fourth Amendment, FRCrimP
No plain error in a court's declining to give preclusive effect in the same proceeding to a pretrial determination of another court's finding of lack of probable cause for a search.
https://www.cadc.uscourts.gov/internet/opinions.nsf/14051A07C66684D585257F41006AF4AC/$file/13-3031-1594913.pdf
No plain error in a court's declining to give preclusive effect in the same proceeding to a pretrial determination of another court's finding of lack of probable cause for a search.
https://www.cadc.uscourts.gov/internet/opinions.nsf/14051A07C66684D585257F41006AF4AC/$file/13-3031-1594913.pdf
DC Circuit: DHL Express, Inc. v. NLRB
Labor
Mixed use space ruling contested at ALJ stage, but not before Board - issue (apparently somewhat) preserved for appeal.
Substantial evidence for Board finding that hallway is a mixed-use area.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A5D074B128A1960A85257F41006AF48E/$file/12-1072-1594886.pdf
Mixed use space ruling contested at ALJ stage, but not before Board - issue (apparently somewhat) preserved for appeal.
Substantial evidence for Board finding that hallway is a mixed-use area.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A5D074B128A1960A85257F41006AF48E/$file/12-1072-1594886.pdf
Eleventh Circuit: USA v. Demetrius Renaldo Bowers
FRCrimP
No error in denial of severance of joined counts, as motion was untimely, and no compelling prejudice resulted.
Sufficient evidence.
ACCA upheld against SOP, other constitutional challenges.
Mandatory 187 year sentence for brandishing firearm during robberies not grossly disproportionate.
http://media.ca11.uscourts.gov/opinions/pub/files/201411585.pdf
No error in denial of severance of joined counts, as motion was untimely, and no compelling prejudice resulted.
Sufficient evidence.
ACCA upheld against SOP, other constitutional challenges.
Mandatory 187 year sentence for brandishing firearm during robberies not grossly disproportionate.
http://media.ca11.uscourts.gov/opinions/pub/files/201411585.pdf
Eleventh Circuit:Ernest Edgar Black, et al. Jeff Wigington, et al
S1983
Qualified immunity on trespass, as no actual malice established.
Exclusionary rule does not bar use of illegally obtained evidence to establish probable cause in a civil suit. (!)
No sovereign immunity for Sheriff in ADA claim.
http://media.ca11.uscourts.gov/opinions/pub/files/201510848.pdf
Qualified immunity on trespass, as no actual malice established.
Exclusionary rule does not bar use of illegally obtained evidence to establish probable cause in a civil suit. (!)
No sovereign immunity for Sheriff in ADA claim.
http://media.ca11.uscourts.gov/opinions/pub/files/201510848.pdf
Ninth Circuit: Ronald Taylor v. Matthew Cate, Secretary CDCR
Habeas
De novo/ non-AEDPA review, as no state court has considered the specific constitutional claim.
Where the jury is instructed on aiding and abetting, but instead votes to convict on actual murder, but with a special verdict supporting felony murder that is later vacated, a resentencing for aiding and abetting based on subsequent admissions by deft doesn't sufficiently violate 6A to justify Habeas relief, as the resentencing judge is relying on the earlier verdict.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/21/11-55247.pdf
De novo/ non-AEDPA review, as no state court has considered the specific constitutional claim.
Where the jury is instructed on aiding and abetting, but instead votes to convict on actual murder, but with a special verdict supporting felony murder that is later vacated, a resentencing for aiding and abetting based on subsequent admissions by deft doesn't sufficiently violate 6A to justify Habeas relief, as the resentencing judge is relying on the earlier verdict.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/21/11-55247.pdf
Eighth Circuit: O&S Trucking, Inc. v. Mercedes Benz Financial Serv.
Bankruptcy
While a person can appeal their own Chapter 11 amended bankruptcy plan if it incorporates adverse elements, there must be sufficient objection to the plan, and this isn't achieved by referring to an already-filed appeal and any subsequent appeals.
http://media.ca8.uscourts.gov/opndir/16/01/152048P.pdf
While a person can appeal their own Chapter 11 amended bankruptcy plan if it incorporates adverse elements, there must be sufficient objection to the plan, and this isn't achieved by referring to an already-filed appeal and any subsequent appeals.
http://media.ca8.uscourts.gov/opndir/16/01/152048P.pdf
Eighth Circuit: Munna Godfrey v. Loretta E. Lynch
Immigration
Petitioner has burden to prove that checking a box indicating citizen/national reflected an intent to select the latter -- here, petitioners other representations to the contrary bar the claim.
Late introduction of the I9 in the immigration proceedings doesn't violate Due Process.
http://media.ca8.uscourts.gov/opndir/16/01/151027P.pdf
Petitioner has burden to prove that checking a box indicating citizen/national reflected an intent to select the latter -- here, petitioners other representations to the contrary bar the claim.
Late introduction of the I9 in the immigration proceedings doesn't violate Due Process.
http://media.ca8.uscourts.gov/opndir/16/01/151027P.pdf
Seventh Circuit: Fidlar Technologies v. LPS Real Estate Data Solutions
Civil CFAA
Direct access to data layer by licensed party bypassing the web interface did not violate statutes barring unauthorized computer access.
Interfering with tracking doesn't violate statute / constitute trespass to chattels.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:15-1830:J:Flaum:aut:T:fnOp:N:1690861:S:0
Direct access to data layer by licensed party bypassing the web interface did not violate statutes barring unauthorized computer access.
Interfering with tracking doesn't violate statute / constitute trespass to chattels.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:15-1830:J:Flaum:aut:T:fnOp:N:1690861:S:0
Seventh Circuit: USA v. Tyree Neal, Sr.
Sentencing
Deft can make substantive, but not procedural, challenges to sentencing conditions not challenged earlier on direct appeal.
Conditions here (warrantless entry) were reasonably related to legitimate goals.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-3473:J:Hamilton:aut:T:fnOp:N:1690666:S:0
Deft can make substantive, but not procedural, challenges to sentencing conditions not challenged earlier on direct appeal.
Conditions here (warrantless entry) were reasonably related to legitimate goals.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-3473:J:Hamilton:aut:T:fnOp:N:1690666:S:0
Seventh Circuit: VLM Food Trading International v. Illinois Trading Company
Contracts
Transnational contract was formed under Convention by agreement by the parties, and subsequent inclusion of attorney's fees by one party did not become a binding modification, as it was not mirrored or acknowledged in the return invoice or communications.
Attorney's statement that something had been admitted and was in the record isn't sufficient basis for waiver of claim.
Not raising issue of waiver until the reply brief waived the issue of prior default.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-2776:J:Sykes:aut:T:fnOp:N:1690495:S:0
Transnational contract was formed under Convention by agreement by the parties, and subsequent inclusion of attorney's fees by one party did not become a binding modification, as it was not mirrored or acknowledged in the return invoice or communications.
Attorney's statement that something had been admitted and was in the record isn't sufficient basis for waiver of claim.
Not raising issue of waiver until the reply brief waived the issue of prior default.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-2776:J:Sykes:aut:T:fnOp:N:1690495:S:0
Seventh Circuit: USA v. Michael Segal
Sentencing/restitution
No error in denial of extension ot purchase insurance policies, as the funds were held up elsewhere in in the settlement by deft's actions.
Although an offer to purchase an asset does not have to be capable of acceptance by simple affirmation in order to be considered commercially acceptable, the deft's right of first refusal gave him an equitable stake in the transaction, and his rights were impaired by having to match a third party's freely revocable offer.
Deft counsel can properly testify as to having seen or not seen the listing of an asset on a list of properties to be seized when the issue turns on a question of inadvertent omission that was not brought to the government's attention.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-3533:J:Posner:aut:T:fnOp:N:1690615:S:0
No error in denial of extension ot purchase insurance policies, as the funds were held up elsewhere in in the settlement by deft's actions.
Although an offer to purchase an asset does not have to be capable of acceptance by simple affirmation in order to be considered commercially acceptable, the deft's right of first refusal gave him an equitable stake in the transaction, and his rights were impaired by having to match a third party's freely revocable offer.
Deft counsel can properly testify as to having seen or not seen the listing of an asset on a list of properties to be seized when the issue turns on a question of inadvertent omission that was not brought to the government's attention.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-3533:J:Posner:aut:T:fnOp:N:1690615:S:0
Sixth Circuit: Jose Zaldana Menijar v. Loretta Lynch
From December, but on today's list. Revised, perhaps.
http://www.ca6.uscourts.gov/opinions.pdf/16a0015p-06.pdf
http://www.ca6.uscourts.gov/opinions.pdf/16a0015p-06.pdf
Sixth Circuit: Hobert Tackett v. M&G Polymers USA, LLC
Contracts
Vesting of retirees in pension plan should follow normal rules of contractual interpretation, with only a thumb on the scales in favor of vesting. Remanded from Scotus, with a helpful list of such rules.
Remanded to District Court to consider relevance and weight of writings outside the corners of the agreement.
http://www.ca6.uscourts.gov/opinions.pdf/16a0014p-06.pdf
Vesting of retirees in pension plan should follow normal rules of contractual interpretation, with only a thumb on the scales in favor of vesting. Remanded from Scotus, with a helpful list of such rules.
Remanded to District Court to consider relevance and weight of writings outside the corners of the agreement.
http://www.ca6.uscourts.gov/opinions.pdf/16a0014p-06.pdf
Fifth Circuit: USA v. Larry Thompson
Offender registration
Statute is not an unconstitutional regulation of purely intrastate commerce.
Statute requires timely registration when present in an area - acquisition of a domicile or extended habitation is not necessary.
Conversation in which US Marshall explained the registration requirement was not testimonial in nature, and therefore was not subject to Miranda.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40370-CR0.pdf
Statute is not an unconstitutional regulation of purely intrastate commerce.
Statute requires timely registration when present in an area - acquisition of a domicile or extended habitation is not necessary.
Conversation in which US Marshall explained the registration requirement was not testimonial in nature, and therefore was not subject to Miranda.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40370-CR0.pdf
Fourth Circuit: Knox Creek Coal Corporation v. Secretary of Labor
Administrative
Commission review of ALJ's decisions did not overreach by reversing on the basis that the ALJ had only considered a snapshot view of the circumstance, and that the ALJ had improperly weighed the possibility disaster actually occurring from the violation of the rules. Findings of fact were not contradicted in the reversal.
Where commission adopts factual findings of ALJ but reverses, review is for substantial error.
Litigating decisions (adjudications?) of the Secretary are not subject to Chevron deference. (!)
As the gravity of events resulting from a violation are considered in another prong of the rule, the gravity of the prong under consideration refers to the degree of the material violation itself.
Contemplated - but not implemented - improvements are not mitigations.
http://www.ca4.uscourts.gov/Opinions/Published/142313.P.pdf
Commission review of ALJ's decisions did not overreach by reversing on the basis that the ALJ had only considered a snapshot view of the circumstance, and that the ALJ had improperly weighed the possibility disaster actually occurring from the violation of the rules. Findings of fact were not contradicted in the reversal.
Where commission adopts factual findings of ALJ but reverses, review is for substantial error.
Litigating decisions (adjudications?) of the Secretary are not subject to Chevron deference. (!)
As the gravity of events resulting from a violation are considered in another prong of the rule, the gravity of the prong under consideration refers to the degree of the material violation itself.
Contemplated - but not implemented - improvements are not mitigations.
http://www.ca4.uscourts.gov/Opinions/Published/142313.P.pdf
Fourth Circuit: Colon Health Centers v. Bill Hazel
Commerce clause
State medical facility licensing statute does not facially violate dormant commerce clause, as there is no demonstrable statistical proof of discrimination in favor of in-state providers.
State of incorporation is a valid, testable criterion.
Bias in favor of incumbent businesses is not a proxy for discrimination against out of state businesses.
Sufficient policy benefits to justify policy in a balancing test against de facto dormant commerce clause challenge.
http://www.ca4.uscourts.gov/Opinions/Published/142283.P.pdf
State medical facility licensing statute does not facially violate dormant commerce clause, as there is no demonstrable statistical proof of discrimination in favor of in-state providers.
State of incorporation is a valid, testable criterion.
Bias in favor of incumbent businesses is not a proxy for discrimination against out of state businesses.
Sufficient policy benefits to justify policy in a balancing test against de facto dormant commerce clause challenge.
http://www.ca4.uscourts.gov/Opinions/Published/142283.P.pdf
Third Circuit: Elnor Whitehead v. Pullman Group LLC
Arbitration
Arbitrator's likely application of statute precluding testimony about unrecorded transactions with deceased party was not an error sufficient to vacate the arbitration.
As the arbitrator likely filtered out barred testimony, opposing party's use of spoken parole evidence to the contrary didn't open the door to use by plaintff.
http://www2.ca3.uscourts.gov/opinarch/151627p.pdf
Arbitrator's likely application of statute precluding testimony about unrecorded transactions with deceased party was not an error sufficient to vacate the arbitration.
As the arbitrator likely filtered out barred testimony, opposing party's use of spoken parole evidence to the contrary didn't open the door to use by plaintff.
http://www2.ca3.uscourts.gov/opinarch/151627p.pdf
Second Circuit: Yale-New Haven Hospital v. Nicholls, et al.
ERISA
Denial of en banc, with dissent from denial.
ERISA annuity/lump sum benefits / posthumous domestic orders. Or something like that.
http://www.ca2.uscourts.gov/decisions/isysquery/78742b70-321c-4ada-8a3a-2b2b4f09d6b8/1/doc/13-4725comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/78742b70-321c-4ada-8a3a-2b2b4f09d6b8/1/hilite/
Denial of en banc, with dissent from denial.
ERISA annuity/lump sum benefits / posthumous domestic orders. Or something like that.
http://www.ca2.uscourts.gov/decisions/isysquery/78742b70-321c-4ada-8a3a-2b2b4f09d6b8/1/doc/13-4725comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/78742b70-321c-4ada-8a3a-2b2b4f09d6b8/1/hilite/
Eleventh Circuit: USA v. Harvey Zitron
Tax, FrCrimP
No error in joining tax crimes with fraud crimes in the indictment, as prejudice was speculative.
Comment elicited on cross about hypothetical silence of deft didn't violate 5A, shift burdens.
Where deft has in the past opened credit accounts for family, doing so with unlawful intent suffices for statutory bar on knowingly opening the account with unlawful authority.
No plain error in court's determining amount of fraud based on scope of fraud versus funds deposited by deft.
Leadership enhancement upheld.
http://media.ca11.uscourts.gov/opinions/pub/files/201410009.pdf
No error in joining tax crimes with fraud crimes in the indictment, as prejudice was speculative.
Comment elicited on cross about hypothetical silence of deft didn't violate 5A, shift burdens.
Where deft has in the past opened credit accounts for family, doing so with unlawful intent suffices for statutory bar on knowingly opening the account with unlawful authority.
No plain error in court's determining amount of fraud based on scope of fraud versus funds deposited by deft.
Leadership enhancement upheld.
http://media.ca11.uscourts.gov/opinions/pub/files/201410009.pdf
Eleventh Circuit: In re: Anthony Johnson
Habeas, AEDPA
30 Day limit for consideration of second or successive petitions is advisory, not jurisdictional.
Johnson retroactivity: petition held in abeyance pending S.Ct. ruling.
http://media.ca11.uscourts.gov/opinions/pub/files/201610011.order.pdf
30 Day limit for consideration of second or successive petitions is advisory, not jurisdictional.
Johnson retroactivity: petition held in abeyance pending S.Ct. ruling.
http://media.ca11.uscourts.gov/opinions/pub/files/201610011.order.pdf
Eleventh Circuit: Dan Carmichael McCarthan v. Warden, FCC Coleman - Medium
Habeas
S. Ct. holding that state escape statute is not categorically a violent crime for purposes of the ACCA predicate conviction is a substantive change in the law to be made retroactively available on collateral review.
Circuit precedent that escape was a violent crime for purposes of one statute had a preclusive effect on whether it was a crime of violence with reference to another statute.
Very complex - here's our best guess: Access to S2241 Habeas depends on there being no effective remedy by a Habeas claim on motion. Where a deft has multiple potential predicates in the PSR and the indictment only lists three, but neither the sentencing court nor the PSR identifies the ones to be used in the ACCA enhancement, all potentially valid predicates are counted against the deft in considering jurisdiction for a S2241 writ unless petitioner can affirmatively establish that prior Habeas on motion would have been ineffective against the uncharged predicates. The argument that a challenge to a predicate was waived for procedural default, however, is a an affirmative defense on the merits - the relevant jurisdictional question for the S2241 writ is whether the writ on motion would have been an effective challenge.
[Again, don't rely on any of this for anything.]
Concurrence: No access to writ, as alternate bases for the enhancement establish that sentencing court did not rely on the challenged offense.
http://media.ca11.uscourts.gov/opinions/pub/files/201214989.pdf
S. Ct. holding that state escape statute is not categorically a violent crime for purposes of the ACCA predicate conviction is a substantive change in the law to be made retroactively available on collateral review.
Circuit precedent that escape was a violent crime for purposes of one statute had a preclusive effect on whether it was a crime of violence with reference to another statute.
Very complex - here's our best guess: Access to S2241 Habeas depends on there being no effective remedy by a Habeas claim on motion. Where a deft has multiple potential predicates in the PSR and the indictment only lists three, but neither the sentencing court nor the PSR identifies the ones to be used in the ACCA enhancement, all potentially valid predicates are counted against the deft in considering jurisdiction for a S2241 writ unless petitioner can affirmatively establish that prior Habeas on motion would have been ineffective against the uncharged predicates. The argument that a challenge to a predicate was waived for procedural default, however, is a an affirmative defense on the merits - the relevant jurisdictional question for the S2241 writ is whether the writ on motion would have been an effective challenge.
[Again, don't rely on any of this for anything.]
Concurrence: No access to writ, as alternate bases for the enhancement establish that sentencing court did not rely on the challenged offense.
http://media.ca11.uscourts.gov/opinions/pub/files/201214989.pdf
Eighth Circuit: United States v. Joshua Welch
Fourth Amendment
30 Day time period for notification of warrant ran from execution of warrant, not identification of the subject.
No clear error in holding the error harmless, given good faith and lack of prejudice.
Barring use of prior affidavit on cross was harmless error, if error.
http://media.ca8.uscourts.gov/opndir/16/01/151993P.pdf
30 Day time period for notification of warrant ran from execution of warrant, not identification of the subject.
No clear error in holding the error harmless, given good faith and lack of prejudice.
Barring use of prior affidavit on cross was harmless error, if error.
http://media.ca8.uscourts.gov/opndir/16/01/151993P.pdf
Eighth Circuit: National Parks Conservation v. EPA
Administrative, environment
Circuit has statutory jurisdiction over challenge to local component of national plan.
Offsets plan upheld as not arbitrary and capricious.
Rational basis for agency modification of statutory goals.
Concur in J: No circuit jurisdiction over national plan.
http://media.ca8.uscourts.gov/opndir/16/01/122910P.pdf
Circuit has statutory jurisdiction over challenge to local component of national plan.
Offsets plan upheld as not arbitrary and capricious.
Rational basis for agency modification of statutory goals.
Concur in J: No circuit jurisdiction over national plan.
http://media.ca8.uscourts.gov/opndir/16/01/122910P.pdf
Seventh Circuit: Larry Nelson v. City of Chicago
FRE
Admission of plaintiff's prior arrests on the theory that they spoke to his good law-abiding citizenship was error; also not probative of damages mitigation on 4A claim
Admission of plaintiff's prior lawsuits against the city error, as it didn't contradict testimony at trial; also not cured by limiting instruction.
Admission of police officer's extended hypothetical as to reasons for drawing a weapon in a traffic stop was error.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:12-3401:J:Sykes:aut:T:fnOp:N:1689820:S:0
Admission of plaintiff's prior arrests on the theory that they spoke to his good law-abiding citizenship was error; also not probative of damages mitigation on 4A claim
Admission of plaintiff's prior lawsuits against the city error, as it didn't contradict testimony at trial; also not cured by limiting instruction.
Admission of police officer's extended hypothetical as to reasons for drawing a weapon in a traffic stop was error.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:12-3401:J:Sykes:aut:T:fnOp:N:1689820:S:0
Seventh Circuit: Smith, Keith v. Sipi, LLC
Bankruptcy, standing
State tax sale isn't a transfer for value, as the purchasers bid on the lien obligation without explicit reference to the value of the property.
Both parties have standing, where one was the initial plaintiff, and the other was later joined prior to their divorce, which left the joined plaintiff with sole rights in the property but other issues unresolved.
Plaintiff's recovery limited to homestead exception.
Purchaser of the lien obligation was the initial transferee, as the state merely facilitated the transfer.
Second purchaser had no constructive knowledge of fraudulence of transfer in the circumstances.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:15-1166:J:Hamilton:aut:T:fnOp:N:1689637:S:0
State tax sale isn't a transfer for value, as the purchasers bid on the lien obligation without explicit reference to the value of the property.
Both parties have standing, where one was the initial plaintiff, and the other was later joined prior to their divorce, which left the joined plaintiff with sole rights in the property but other issues unresolved.
Plaintiff's recovery limited to homestead exception.
Purchaser of the lien obligation was the initial transferee, as the state merely facilitated the transfer.
Second purchaser had no constructive knowledge of fraudulence of transfer in the circumstances.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:15-1166:J:Hamilton:aut:T:fnOp:N:1689637:S:0
Fourth Circuit: USA v. Wendy Annette Moore
Crim
No variance from indictment when a court instructs according to both prongs of a statute when the indictment only charged one prong of the statute.
The trustworthiness of a statement against interest hearsay exception refers to the statement actually made, not the trustworthiness of the reporting. No confrontation clause issue in statement to fellow detainee.
No plain error in admission of statements of prior bad acts/character, as gov't was required to correct.
http://www.ca4.uscourts.gov/Opinions/Published/144645.P.pdf
No variance from indictment when a court instructs according to both prongs of a statute when the indictment only charged one prong of the statute.
The trustworthiness of a statement against interest hearsay exception refers to the statement actually made, not the trustworthiness of the reporting. No confrontation clause issue in statement to fellow detainee.
No plain error in admission of statements of prior bad acts/character, as gov't was required to correct.
http://www.ca4.uscourts.gov/Opinions/Published/144645.P.pdf
First Circuit: Harrington v. Simmons
Crim, FRCrimP
Indictment not duplicative, as fraudulent schemes are inherently complex, and the scheme had a discrete sole desired outcome - a desire to score a run, not to hit a double and then steal two bases.
No variance from indictment given the diversity of interests of those who sustained losses, e.g., lenders, borrowers. No prejudice, as single theory.
The misstatements to lenders need only have a tendency to influence the lenders decisions to be considered material -- actual reliance need not be proven.
Given the structure and conduct of deft's organization, intent can be fairly inferred.
Court'd decision to deny funding for expert witness was without clear error, given concerns as to materiality and admissibility.
Where ten of the eleven counts are severed just before the case goes to the jury, a general directive to ignore the evidence offered in support of the counts sufficed.
Restitution challenge waived by spoken acceptance by counsel at trial, despite lack of victim statements.
http://media.ca1.uscourts.gov/pdf.opinions/14-1325P-01A.pdf
Indictment not duplicative, as fraudulent schemes are inherently complex, and the scheme had a discrete sole desired outcome - a desire to score a run, not to hit a double and then steal two bases.
No variance from indictment given the diversity of interests of those who sustained losses, e.g., lenders, borrowers. No prejudice, as single theory.
The misstatements to lenders need only have a tendency to influence the lenders decisions to be considered material -- actual reliance need not be proven.
Given the structure and conduct of deft's organization, intent can be fairly inferred.
Court'd decision to deny funding for expert witness was without clear error, given concerns as to materiality and admissibility.
Where ten of the eleven counts are severed just before the case goes to the jury, a general directive to ignore the evidence offered in support of the counts sufficed.
Restitution challenge waived by spoken acceptance by counsel at trial, despite lack of victim statements.
http://media.ca1.uscourts.gov/pdf.opinions/14-1325P-01A.pdf
First Circuit: US v. Manso-Cepeda
Bankruptcy
A denial of discharge due to insufficient record-keeping in the pre-petition period is not a strict liability standard, but can be offset by a justification that is objectively reasonable.
Claiming that the petitioner was not the true principal for the assets in question is insufficient basis for denying discharge based on the unexplained dissipation of assets.
http://media.ca1.uscourts.gov/pdf.opinions/15-9005P-01A.pdf
A denial of discharge due to insufficient record-keeping in the pre-petition period is not a strict liability standard, but can be offset by a justification that is objectively reasonable.
Claiming that the petitioner was not the true principal for the assets in question is insufficient basis for denying discharge based on the unexplained dissipation of assets.
http://media.ca1.uscourts.gov/pdf.opinions/15-9005P-01A.pdf
First Circuit: US v. Prieto
Crim - accessory
Sufficient evidence for conviction for accessory to use of a firearm where jury might have inferred deft's prior knowledge of possession and deft didn't stop the car and walk away after possession was revealed.
Challenge to jury instructions might have been more appropriate.
http://media.ca1.uscourts.gov/pdf.opinions/14-2068P-01A.pdf
Sufficient evidence for conviction for accessory to use of a firearm where jury might have inferred deft's prior knowledge of possession and deft didn't stop the car and walk away after possession was revealed.
Challenge to jury instructions might have been more appropriate.
http://media.ca1.uscourts.gov/pdf.opinions/14-2068P-01A.pdf
Federal Circuit: Mortgage Grader Inc. v. First Choice Loan Services
Patent, FRCP
Sufficient cause to overwhelm presumption of non-diligence when an element of claim dropped in initial proceedings is revived in final proceedings, given intervening holding from S.Ct.
Consideration of cause does not necessitate inquiry into prejudice.
Claims not patent-eligible, as they are directed at abstract ideas without an inventive concept.
Limited consideration of expert depositions permissible in summary judgment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1415.Opinion.1-15-2016.1.PDF
Sufficient cause to overwhelm presumption of non-diligence when an element of claim dropped in initial proceedings is revived in final proceedings, given intervening holding from S.Ct.
Consideration of cause does not necessitate inquiry into prejudice.
Claims not patent-eligible, as they are directed at abstract ideas without an inventive concept.
Limited consideration of expert depositions permissible in summary judgment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1415.Opinion.1-15-2016.1.PDF
Eleventh Circuit: Christopher Brooks v. Warden, et al.
Death Penalty.
District court denial of stay upheld, as petitioner didn't make sufficient showing of there being a better combination of drugs to cause death.
Claim time barred, as it accrued on the switch to lethal injection, and not when the drugs at issue changed.
The fact that other suits were challenging the method of prompting death doesn't affect the equities of considering the petitioner's delay in joining a similar suit.
http://media.ca11.uscourts.gov/opinions/pub/files/201515732.pdf
[Brief editorial: The death penalty is morally unjustifiable. -CB]
District court denial of stay upheld, as petitioner didn't make sufficient showing of there being a better combination of drugs to cause death.
Claim time barred, as it accrued on the switch to lethal injection, and not when the drugs at issue changed.
The fact that other suits were challenging the method of prompting death doesn't affect the equities of considering the petitioner's delay in joining a similar suit.
http://media.ca11.uscourts.gov/opinions/pub/files/201515732.pdf
[Brief editorial: The death penalty is morally unjustifiable. -CB]
Tenth Circuit: Christy v. Travelers Indemnity
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
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
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
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