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.
Fifth Circuit: Jessie Grace, III v. Darrel Vannoy, Warden
FRCP
A stay of a federal Habeas petition to allow the petitioner to exhaust newly discovered claims in state court is not a collateral order subject to direct interlocutory appeal, as the issuance of the stay does not directly or indirectly moot the claims of either party.
Jessie Grace, III v. Darrel Vannoy, Warden
Fourth Circuit: Dora Beltran v. Brent Cardall
Habeas, Immigration
Where petitioner alleges detention in violation of Constitution and statutes, federal courts have subject matter jurisdiction over Habeas petition on behalf of alien minor -- not a prohibited review of administrative determinations.
Determination that a minor is an unaccompanied alien child for purposes of the statute is a fact-intensive question, agency determination prevails.
As the specific controls the general, a statute authorizing detention and barring release to parent found inappropriate must be construed to bar inappropriate release even after the pendency of authorized detention.
Administrative decision that release to parent is inappropriate satisfies substantive DP.
Where a parent is seeking custody of child, procedural due process implies more than substantive due process inquiry -- full notice, appeal & Matthews v. Eldrige balancing implied.
Dissent:
Error as a matter of law to say that the statute allows gov't to determine that minor is "unaccompanied" if parent determined to be inappropriate.
Dora Beltran v. Brent Cardall
Fourth Circuit: Robert Sarvis v. James Alcorn
Election Law
Commonwealth's ballot ordering scheme does not impede access to ballot or association rights--no heightened scrutiny, despite potential "windfall vote" from order on the page.
Commonwealth's interest in preserving symmetry, reducing voter confusion properly pleaded. Little burden on petitioner.
Question for the political branches.
Robert Sarvis v. James Alcorn
Commonwealth's ballot ordering scheme does not impede access to ballot or association rights--no heightened scrutiny, despite potential "windfall vote" from order on the page.
Commonwealth's interest in preserving symmetry, reducing voter confusion properly pleaded. Little burden on petitioner.
Question for the political branches.
Robert Sarvis v. James Alcorn
Fourth Circuit: In re: John McFadden
Habeas/AEDPA
Newly discovered evidence that deft lost out on a favorable plea offer is not grounds for a second/successive petition.
In re: John McFadden
Second Circuit: N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
Labor Law, Arbitration
When an employer organization has an agreement with an International union, and that agreement contradicts elements of the Local's court-supervised contract, an arbitration award allowing the employers to follow the agreement with the International is within socpe, entitled to deference, and does not violate public policy.
The arbitrator's finding does present a question of whether the court-approved Local contract was approved with insufficient information.
N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
When an employer organization has an agreement with an International union, and that agreement contradicts elements of the Local's court-supervised contract, an arbitration award allowing the employers to follow the agreement with the International is within socpe, entitled to deference, and does not violate public policy.
The arbitrator's finding does present a question of whether the court-approved Local contract was approved with insufficient information.
N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
Second Circuit: Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.
FISA
When a foreign bank that is an instrument of the foreign sovereign freezes an account acting while acting in its governmental/regulatory capacity, the commercial exception to FISA isn't a basis for jurisdiction.
Freezing of account didn't happen in US, didn't have sufficient direct effects in US.
Routine law-enforcement freezing of funds doesn't rise to the level of a taking without compensation in violation of international law.
Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.
Second Circuit: Austin v. Town of Farmington
FHA does not impose a per se bar to a municipal requirement that accommodations constructed contrary to code be removed after the disabled person no longer lives there.
Whether the removal requirement violates the FHA is a question of reasonableness for the court; can't be made from pleadings.
Retaliation claim under the FHA must plead and prove animus.
Austin v. Town of Farmington
Federal Circuit: FORD MOTOR COMPANY v. US
Statute of Limitations
Filing time limit in statute is not jurisdictional, as there is no specific intent evident in the statute to make it one.
No error in CIT declining to issue declaratory relief, as there are other avenues for plaintiff to challenge.
Where a court dismisses claims on discretionary grounds and some similar claims under a statute of limitations that is later held not to be jurisdictional, the court of appeals can presume that the latter claims would similarly have been dismissed on discretionary grounds.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1726.Opinion.2-1-2016.1.PDF
Filing time limit in statute is not jurisdictional, as there is no specific intent evident in the statute to make it one.
No error in CIT declining to issue declaratory relief, as there are other avenues for plaintiff to challenge.
Where a court dismisses claims on discretionary grounds and some similar claims under a statute of limitations that is later held not to be jurisdictional, the court of appeals can presume that the latter claims would similarly have been dismissed on discretionary grounds.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1726.Opinion.2-1-2016.1.PDF
Eleventh Circuit: Crew One Productions, Inc. v. National Labor Relations Board
Labor, Employment, Agency
Given hiring agency's lack of control over stage hands on the job and several other factors, NRLB certification of an exclusive representative was not supported by substantial evidence.
http://media.ca11.uscourts.gov/opinions/pub/files/201510429.pdf
Given hiring agency's lack of control over stage hands on the job and several other factors, NRLB certification of an exclusive representative was not supported by substantial evidence.
http://media.ca11.uscourts.gov/opinions/pub/files/201510429.pdf
Eleventh Circuit: Ramon F. Danny, Jr. v. Secretary, Florida Department of Corrections, et al.
Habeas, AEDPA
Untimely state direct appeal captioned under the shared collateral/direct state procedural rule cannot be construed as a collateral challenge to toll the AEDPA clock, as it doesn't reach the merits of the collateral challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201415522.pdf
Untimely state direct appeal captioned under the shared collateral/direct state procedural rule cannot be construed as a collateral challenge to toll the AEDPA clock, as it doesn't reach the merits of the collateral challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201415522.pdf
Ninth Circuit: MARIO GARCIA V. COUNTY OF RIVERSIDE
S1983
Denials of state law quasi-judicial immunity can be appealed on an interlocutory basis, as the immunity is potentially absolute.
Arrest of a person with a a substantial difference in height from the person described on the warrant states a 14A S1983 claim.
State immunity statute shields only the arresting officer, and presumes reasonable belief.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/03/13-56857.pdf
Denials of state law quasi-judicial immunity can be appealed on an interlocutory basis, as the immunity is potentially absolute.
Arrest of a person with a a substantial difference in height from the person described on the warrant states a 14A S1983 claim.
State immunity statute shields only the arresting officer, and presumes reasonable belief.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/03/13-56857.pdf
Ninth Circuit: MANUEL VALENCIA V. LORETTA E. LYNCH
Immigration
Chevron deference to AG decision that grandfathering statute implicitly bars relief to later substituted applicants.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70414.pdf
Chevron deference to AG decision that grandfathering statute implicitly bars relief to later substituted applicants.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70414.pdf
Ninth Circuit: JERRY VILLAVICENCIO-ROJAS V. LORETTA E. LYNCH
Immigration
For immigration purposes, where there are two counts charged, but they are from a single event, case, and sentence, the petitioner remains a first-time offender.
Concurrence: Single case and sentence. The critical thing is that the petitioner has not previously been considered a first time offender.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70620.pdf
For immigration purposes, where there are two counts charged, but they are from a single event, case, and sentence, the petitioner remains a first-time offender.
Concurrence: Single case and sentence. The critical thing is that the petitioner has not previously been considered a first time offender.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70620.pdf
Eighth Circuit: State of Nebraska v. EPA
Environment, Administrative
Agency's lack of deference to state findings on costs accrued by different methods of pollution abatement was per se not an abuse of discretion, given that the Act contemplates more than ministerial approval.
Federal agency's regional rule that incorporates a national standard is not barred from review as a national rule, since the agency has not found it to be a national rule. The expertise involved mandates deference to the agency's findings, which are not an abuse of its discretion.
http://media.ca8.uscourts.gov/opndir/16/02/123084P.pdf
Agency's lack of deference to state findings on costs accrued by different methods of pollution abatement was per se not an abuse of discretion, given that the Act contemplates more than ministerial approval.
Federal agency's regional rule that incorporates a national standard is not barred from review as a national rule, since the agency has not found it to be a national rule. The expertise involved mandates deference to the agency's findings, which are not an abuse of its discretion.
http://media.ca8.uscourts.gov/opndir/16/02/123084P.pdf
Eighth Circuit: Travis Chaney v. Carolyn W. Colvin
SSA
ALJ's less than fully credible conclusions are nonetheless supported by substantial evidence.
http://media.ca8.uscourts.gov/opndir/16/02/143433P.pdf
ALJ's less than fully credible conclusions are nonetheless supported by substantial evidence.
http://media.ca8.uscourts.gov/opndir/16/02/143433P.pdf
Eighth Circuit: Herman Hutton v. Danny Maynard, Sr.
Discrimination
Discriminatory language used by employer between an employee's promotion of a minority candidate and the subsequent dismissal of the employee is insufficient to prove direct causation, and where the language is not employment-related, it is insufficient to establish indirect causation.
http://media.ca8.uscourts.gov/opndir/16/02/151300P.pdf
Discriminatory language used by employer between an employee's promotion of a minority candidate and the subsequent dismissal of the employee is insufficient to prove direct causation, and where the language is not employment-related, it is insufficient to establish indirect causation.
http://media.ca8.uscourts.gov/opndir/16/02/151300P.pdf
Seventh Circuit: Garrett Fishwick v. City of Chicago
Discrimination
Claims of a lack of transparency in hiring insufficient to violate consent order barring political influence in hiring,also time-barred.
Res judicata bars claim previously dismissed in state court.
No evidence that gov't consented to claim splitting, as it asserted res judicata in all filings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:14-2977:J:Bauer:aut:T:fnOp:N:1697358:S:0
Claims of a lack of transparency in hiring insufficient to violate consent order barring political influence in hiring,also time-barred.
Res judicata bars claim previously dismissed in state court.
No evidence that gov't consented to claim splitting, as it asserted res judicata in all filings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:14-2977:J:Bauer:aut:T:fnOp:N:1697358:S:0
Seventh Circuit: Terry Deets v. Massman Construction Company
Employment, Discrimination
Statement by employer that percentage of minority employees was to low creates genuine issue of material fact as to whether the subsequent layoff of a worker who had recently lost seniority was discriminatory.
Mitigation as an affirmative defense for Title VII operates as a damages offset.
S1981 allows suits against corporate entities in joint venture, as it contemplates interference with contracts.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-1411:J:Williams:aut:T:fnOp:N:1697105:S:0
Statement by employer that percentage of minority employees was to low creates genuine issue of material fact as to whether the subsequent layoff of a worker who had recently lost seniority was discriminatory.
Mitigation as an affirmative defense for Title VII operates as a damages offset.
S1981 allows suits against corporate entities in joint venture, as it contemplates interference with contracts.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-1411:J:Williams:aut:T:fnOp:N:1697105:S:0
Seventh Circuit: USA v. Lawrence McCarroll
Sentencing
Where a change in the sentencing law would not affect the guidelines calculation, a reduction of the term of imprisonment is not authorized by the statute, despite the fact that the lower point total might allow for more discretion at resentencing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-2492:J:PerCuriam:aut:T:fnOp:N:1697080:S:0
Where a change in the sentencing law would not affect the guidelines calculation, a reduction of the term of imprisonment is not authorized by the statute, despite the fact that the lower point total might allow for more discretion at resentencing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-2492:J:PerCuriam:aut:T:fnOp:N:1697080:S:0
Seventh Circuit:Hans-Peter Baumeister v. Deutsche Lufthansa AG
International, Contracts
Foreign contract covering performance by a nonparty but assigning liability for complete nonperformance to the nonparty does not allow the party to the contract to be sued for breach in a US forum under a foreign statutory cause of action adopted by the contract. (Airline code-sharing, EU legislation)
(In a different matter:)
Domestic contract where the foreign nonparty generally incorporates the foreign statutory cause of action in its agreements is not modified to include the cause of action under apparent authority when the nonparty is the visible agent in the fulfillment of the contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:14-2633:J:Posner:aut:T:fnOp:N:1696487:S:0
Foreign contract covering performance by a nonparty but assigning liability for complete nonperformance to the nonparty does not allow the party to the contract to be sued for breach in a US forum under a foreign statutory cause of action adopted by the contract. (Airline code-sharing, EU legislation)
(In a different matter:)
Domestic contract where the foreign nonparty generally incorporates the foreign statutory cause of action in its agreements is not modified to include the cause of action under apparent authority when the nonparty is the visible agent in the fulfillment of the contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:14-2633:J:Posner:aut:T:fnOp:N:1696487:S:0
Fifth Circuit: USA v. Oscar Juarez
Sentencing
Where the court erroneously states at sentencing that there is no guidelines range, a sentence representing an upward departure is error - remanded.
Not harmless.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40191-CR0.pdf
Where the court erroneously states at sentencing that there is no guidelines range, a sentence representing an upward departure is error - remanded.
Not harmless.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40191-CR0.pdf
Fourth Circuit:James Hayes v. Delbert Services Corporation
Arbitration, Choice of Law, Tribe Law
Loan agreement arbitration clause electing the forum and law of the Sioux nation is invalid and unenforceable, as it operates as a waiver of all federal rights.
Not severable from arbitration provision.
No need to exhaust tribal remedies, as the controversy has nothing to do with the tribe.
http://www.ca4.uscourts.gov/Opinions/Published/151170.P.pdf
Loan agreement arbitration clause electing the forum and law of the Sioux nation is invalid and unenforceable, as it operates as a waiver of all federal rights.
Not severable from arbitration provision.
No need to exhaust tribal remedies, as the controversy has nothing to do with the tribe.
http://www.ca4.uscourts.gov/Opinions/Published/151170.P.pdf
Third Circuit: Jeffrey Wiest v. Tyco Electronics Corp
FRCP, Torts, Employment
12(b)6 ruling for plaintiff does not compel a finding at summary judgment under law of the case that there was sufficient nexus between the protected activity and the adverse action.
Insufficient nexus, nondiscriminatory motive.
http://www2.ca3.uscourts.gov/opinarch/152034p.pdf
12(b)6 ruling for plaintiff does not compel a finding at summary judgment under law of the case that there was sufficient nexus between the protected activity and the adverse action.
Insufficient nexus, nondiscriminatory motive.
http://www2.ca3.uscourts.gov/opinarch/152034p.pdf
Third Circuit: Moore & Co P A v. Majestic Blue Fisheries LLC
FCA
Amended disclosure bar is not jurisdictional - court properly considers under 12(b)6.
Documents acquired by FOIA can constitute a prior disclosure.
Realtors's information was independent of and materially added to the information already available by establishing the who, what, where, why and when.
http://www2.ca3.uscourts.gov/opinarch/144292p.pdf
Amended disclosure bar is not jurisdictional - court properly considers under 12(b)6.
Documents acquired by FOIA can constitute a prior disclosure.
Realtors's information was independent of and materially added to the information already available by establishing the who, what, where, why and when.
http://www2.ca3.uscourts.gov/opinarch/144292p.pdf
Second Circuit: Atlantica Holdings, Inc. v. Sovereign Wealth Fund Samruk-Kazyna JSC
FISA, Securities
FISA provides a cause of action under commercial exception for extraterritorial misrepresentations where the losses were directly and (usually to some degree foreseeably) sustained within the USA.
Direct effects on nonparties would qualify.
Locus delicti is where the harm is sustained.
Court declines to exercise pendent jurisdiction over interlocutory appeal on personal jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/doc/14-917_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/hilite/
FISA provides a cause of action under commercial exception for extraterritorial misrepresentations where the losses were directly and (usually to some degree foreseeably) sustained within the USA.
Direct effects on nonparties would qualify.
Locus delicti is where the harm is sustained.
Court declines to exercise pendent jurisdiction over interlocutory appeal on personal jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/doc/14-917_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/hilite/
Federal Circuit: TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
Patent
(Which, again, is among the many areas of the law in which we are relatively clueless.)
Although there is a heavy presumption in favor of common meanings in patent language, a claimant utilizing another interpretation does not have to explicitly redefine the word or disavow the common meaning.
Term is specific, not general.
Academic paper by inventor describing an invention not in controversy cannot be used to determine construction of claim.
Dependent claims are presumed to be narrower than the independent claims from which they derive.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1146.Opinion.1-29-2016.1.PDF
(Which, again, is among the many areas of the law in which we are relatively clueless.)
Although there is a heavy presumption in favor of common meanings in patent language, a claimant utilizing another interpretation does not have to explicitly redefine the word or disavow the common meaning.
Term is specific, not general.
Academic paper by inventor describing an invention not in controversy cannot be used to determine construction of claim.
Dependent claims are presumed to be narrower than the independent claims from which they derive.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1146.Opinion.1-29-2016.1.PDF
Eleventh Circuit: Brandon Jones v. Commissioner, GA DOC, et al. (2)
S1983, Due Process
Due process claim against state secrecy statute doesn't state a claim under S1983.
Eighth amendment claim not appealed, insufficient, as no better method has been established.
Insufficient injury for standing resulting from state secrecy statute.
Lateness of appeal argues against equities of stay.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.ord.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Due process claim against state secrecy statute doesn't state a claim under S1983.
Eighth amendment claim not appealed, insufficient, as no better method has been established.
Insufficient injury for standing resulting from state secrecy statute.
Lateness of appeal argues against equities of stay.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.ord.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Eleventh Circuit: Brandon Jones v. Commissioner, GA DOC, et al. (1)
Due Process
Concurrence in denial of en banc - no Due Process right to discovery of method of manufacture of state execution materials, given state secrecy statute.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.opn.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Concurrence in denial of en banc - no Due Process right to discovery of method of manufacture of state execution materials, given state secrecy statute.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.opn.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Ninth Circuit: JACKSONVILLE POLICE & FIRE PF V. CVB FINANCIAL CORP
Securities
Statements not actionable, as they were sufficiently hedge, described present reality.
Sufficient falsity and scienter for material omission in "no serious doubts" statement on 10-q, as firm was on notice of largest borrower's difficulties.
Announcement of a subpoena amounted to corrective disclosure, given subsequent lack of market reaction to loan writeoffs.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/01/13-56838.pdf
Statements not actionable, as they were sufficiently hedge, described present reality.
Sufficient falsity and scienter for material omission in "no serious doubts" statement on 10-q, as firm was on notice of largest borrower's difficulties.
Announcement of a subpoena amounted to corrective disclosure, given subsequent lack of market reaction to loan writeoffs.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/01/13-56838.pdf
Eighth Circuit: Ruben Alva-Arellano v. Loretta E. Lynch
Immigration
No abuse of discretion in agency's declining to reopen case where IJ did not inform potential deportee about relief available by means of asylum and CAT, as the IJ had not duty to inform absent evidence of relevance, and the evidence was discoverable prior to the hearing.
http://media.ca8.uscourts.gov/opndir/16/02/142957P.pdf
No abuse of discretion in agency's declining to reopen case where IJ did not inform potential deportee about relief available by means of asylum and CAT, as the IJ had not duty to inform absent evidence of relevance, and the evidence was discoverable prior to the hearing.
http://media.ca8.uscourts.gov/opndir/16/02/142957P.pdf
Seventh Circuit: USA v. Aaron Thompson
FTCA SOL
Statute of limitations bars claims related to prenatal treatment and birth, as both accrued on or around the time of birth.
No equitable tolling, as the federal status of the clinic was discoverable.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:15-1868:J:Bauer:aut:T:fnOp:N:1696343:S:0
Statute of limitations bars claims related to prenatal treatment and birth, as both accrued on or around the time of birth.
No equitable tolling, as the federal status of the clinic was discoverable.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:15-1868:J:Bauer:aut:T:fnOp:N:1696343:S:0
Seventh Circuit: USA v. Titan International, Incorporated
Tax
Federal government can subpoena business records from a previous year that have already been the target of inspection in prior tax years, so long as the second subpoena is not for the purposes of reopening the audit of the previous year's returns.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:14-3789:J:Sykes:aut:T:fnOp:N:1695969:S:0
Federal government can subpoena business records from a previous year that have already been the target of inspection in prior tax years, so long as the second subpoena is not for the purposes of reopening the audit of the previous year's returns.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:14-3789:J:Sykes:aut:T:fnOp:N:1695969:S:0
Seventh Circuit: USA v. Aaron Thompson
Fourth Amendment
Surreptitious video recording made by invited guest in private apartment does not violate 4A, as the only things recorded were within the eyesight of an invited informant who would have been able to testify to them.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:15-2008:J:Kanne:aut:T:fnOp:N:1696062:S:0
Surreptitious video recording made by invited guest in private apartment does not violate 4A, as the only things recorded were within the eyesight of an invited informant who would have been able to testify to them.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:15-2008:J:Kanne:aut:T:fnOp:N:1696062:S:0
Sixth Circuit: Trumbull Cnty. Bd. of Comm'rs v. Village of Lordstown, Ohio
Municipality does not have Article III standing to challenge a second municipality's use of a very large pipe to build a second sewer nearby, since, although the large pipe might someday be used to offer a competing sewer option to a factory in the first municipality, there is insufficient showing that it would happen within the timeframe of the federal noncompete statute.
Dissent: Standing, since judicial resolution would provide present financial certainty. (But would deny on merits.)
http://www.ca6.uscourts.gov/opinions.pdf/16a0022p-06.pdf
Dissent: Standing, since judicial resolution would provide present financial certainty. (But would deny on merits.)
http://www.ca6.uscourts.gov/opinions.pdf/16a0022p-06.pdf
Fifth Circuit: Rochelle Flynn v. Distinctive Home Care, Inc
ADA, Statutory construction
Although a statute incorporated an earlier statute's definition of employment relationships, it did not incorporate the prior statute's requirement that there must be an employment relationship for standing. Independent contractors therefore potentially have a right of action under the second statute.
Circuit split flagged.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50314-CV0.pdf
Although a statute incorporated an earlier statute's definition of employment relationships, it did not incorporate the prior statute's requirement that there must be an employment relationship for standing. Independent contractors therefore potentially have a right of action under the second statute.
Circuit split flagged.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50314-CV0.pdf
Fourth Circuit: Farhan Warfaa v. Yusuf Ali
International
ATS claim barred under the presumption against extraterritorial application, as it does not extensively and directly touch and concern the USA.
Foreign officials cannot claim sovereign immunity in TVPA actions alleging jus cogens violations.
Concur/Dissent: Deft is non-adventitiously a lawful permanent resident who earlier did military training in the USA, so ATS allows the claim.
http://www.ca4.uscourts.gov/Opinions/Published/141810.P.pdf
ATS claim barred under the presumption against extraterritorial application, as it does not extensively and directly touch and concern the USA.
Foreign officials cannot claim sovereign immunity in TVPA actions alleging jus cogens violations.
Concur/Dissent: Deft is non-adventitiously a lawful permanent resident who earlier did military training in the USA, so ATS allows the claim.
http://www.ca4.uscourts.gov/Opinions/Published/141810.P.pdf
Second Circuit: United States v. Vernace
RICO, Crim
Sufficient evidence for RICO predicate where a personal motive and the racketeering motive coexist.
Sufficient evidence for drugs conviction.
No plain error in use of post-hoc amendments to sentencing statute, given independent life sentence and minimal briefing on appeal.
No abuse of discretion in denial of new trial for witness' subsequent initial gambling, given extensive prior illegal activity.
http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/doc/14-2197_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/hilite/
Sufficient evidence for RICO predicate where a personal motive and the racketeering motive coexist.
Sufficient evidence for drugs conviction.
No plain error in use of post-hoc amendments to sentencing statute, given independent life sentence and minimal briefing on appeal.
No abuse of discretion in denial of new trial for witness' subsequent initial gambling, given extensive prior illegal activity.
http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/doc/14-2197_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/hilite/
First Circuit: Colon-Marrero v. Garcia-Velez
Elections, Puerto Rico, Statutory Construction
Congress did not intend that Puerto Rico be considered a "state" under voting law.
Dis-inclusion of Puerto Rico does not burden the voting right, and the principle survives rational basis.
Puerto Rico is considered a state under a second statute barring removal from voter rolls until after two missed elections.
Second statute creates a private right presumptively actionable under S1983.
http://media.ca1.uscourts.gov/pdf.opinions/15-1356P-01A.pdf
Congress did not intend that Puerto Rico be considered a "state" under voting law.
Dis-inclusion of Puerto Rico does not burden the voting right, and the principle survives rational basis.
Puerto Rico is considered a state under a second statute barring removal from voter rolls until after two missed elections.
Second statute creates a private right presumptively actionable under S1983.
http://media.ca1.uscourts.gov/pdf.opinions/15-1356P-01A.pdf
First Circuit: Linton v. Saba
Habeas, Confrontation Clause
Habeas denied for substantial evidence.
Habeas denied for confrontation clause challenge where judge paraphrased test as whether the statement would be used, as opposed to being available for use. Statement found to be not testimonial, since the victim was still upset from the incident and speaking to a family member.
http://media.ca1.uscourts.gov/pdf.opinions/14-2110P-01A.pdf
Habeas denied for substantial evidence.
Habeas denied for confrontation clause challenge where judge paraphrased test as whether the statement would be used, as opposed to being available for use. Statement found to be not testimonial, since the victim was still upset from the incident and speaking to a family member.
http://media.ca1.uscourts.gov/pdf.opinions/14-2110P-01A.pdf
First Circuit: Falto-de Roman v. Municipal Government
S1983
Trial court when denying qualified immunity must address all theories of the claim.
http://media.ca1.uscourts.gov/pdf.opinions/14-1470U-01A.pdf
Trial court when denying qualified immunity must address all theories of the claim.
http://media.ca1.uscourts.gov/pdf.opinions/14-1470U-01A.pdf
Eleventh Circuit: Ace Patterson v. Secretary, Florida Department of Corrections
Habeas, AEDPA
Partial vacatur of sentence without formal resentencing resets the AEDPA clock, and subsequent collateral attacks are therefore not second/successive. Circuit split flagged relative to precedent.
Concurrence: Yep.
Dissent: Nope.
http://media.ca11.uscourts.gov/opinions/pub/files/201212653.pdf
Partial vacatur of sentence without formal resentencing resets the AEDPA clock, and subsequent collateral attacks are therefore not second/successive. Circuit split flagged relative to precedent.
Concurrence: Yep.
Dissent: Nope.
http://media.ca11.uscourts.gov/opinions/pub/files/201212653.pdf
Seventh Circuit: Michael Belleau v. Edward Wall
Release conditions - electronic monitoring
No Fourth Amendment violation for warrantless perpetual electronic monitoring, given the incremental loss of privacy and substantial social benefits.
Electronic monitoring isn't Ex post facto, as it's not a punishment.
Concurrence in J: Reasonable special needs search, but if tech was more ubiquitous, possibly a different calculus. Not punitive in purpose or effect.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:15-3225:J:Flaum:con:T:fnOp:N:1694901:S:0
No Fourth Amendment violation for warrantless perpetual electronic monitoring, given the incremental loss of privacy and substantial social benefits.
Electronic monitoring isn't Ex post facto, as it's not a punishment.
Concurrence in J: Reasonable special needs search, but if tech was more ubiquitous, possibly a different calculus. Not punitive in purpose or effect.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:15-3225:J:Flaum:con:T:fnOp:N:1694901:S:0
Seventh Circuit: Stark Excavating, Incorporated v. Thomas Perez
Administrative
Although the ALJ was uniquely qualified to make credibility determinations on willfulness, the reviewing Commission's reversal was supported by substantial evidence, as the ALJ's finding was susceptible of multiple interpretations.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:14-3809:J:Rovner:aut:T:fnOp:N:1694913:S:0
Although the ALJ was uniquely qualified to make credibility determinations on willfulness, the reviewing Commission's reversal was supported by substantial evidence, as the ALJ's finding was susceptible of multiple interpretations.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:14-3809:J:Rovner:aut:T:fnOp:N:1694913:S:0
Fifth Circuit: Jay Barrash v. Amer Assn of Neurl Surgns Inc.
Torts
Although the professional association did not provide the member under censure with sufficient due process under the rules of the organization, there was no inherent due process violation, as the member had sufficient advance notice of the materials in dispute.
As the association could have revoked the censure in full after the partial judicial rescission, there is no due process violation in the partial judicial rescission of the censure.
Under state law- judicial non-intervention bars relief for palintiff under contract theory in an alleged violation of bylaws.
http://www.ca5.uscourts.gov/opinions/pub/14/14-20764-CV0.pdf
Although the professional association did not provide the member under censure with sufficient due process under the rules of the organization, there was no inherent due process violation, as the member had sufficient advance notice of the materials in dispute.
As the association could have revoked the censure in full after the partial judicial rescission, there is no due process violation in the partial judicial rescission of the censure.
Under state law- judicial non-intervention bars relief for palintiff under contract theory in an alleged violation of bylaws.
http://www.ca5.uscourts.gov/opinions/pub/14/14-20764-CV0.pdf
Second Circuit: United States v. Pruitt
Sentencing
No plain error in within-guidelines sentence issued without explanation, as the sentencing judge adopted the findings of the PSR, which contains the justifications for the sentence.
Checkbox on sentencing form imposing a within-guidelines sentence risks legal error. Explicit request to Congress that it amend it.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/doc/14-1921_opn_and_attachment.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/hilite/
No plain error in within-guidelines sentence issued without explanation, as the sentencing judge adopted the findings of the PSR, which contains the justifications for the sentence.
Checkbox on sentencing form imposing a within-guidelines sentence risks legal error. Explicit request to Congress that it amend it.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/doc/14-1921_opn_and_attachment.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/hilite/
Second Circuit: Victory v. Pataki et al.
S1983 Due Process - Parole
Prison inmate with a parole release date has a cognizable liberty interest.
As challenge to tribunal's decision was only possible by contradicting prior unsworn testimony of its members, there was no impartial decisionmaker at the point of parole rescission.
Absolute immunity for quasijudicial officers of parole board does not extend to fabrication of evidence before the initiation of proceedings.
Genuine issues of material fact on merits - remand.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/doc/13-3592_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/hilite/
Prison inmate with a parole release date has a cognizable liberty interest.
As challenge to tribunal's decision was only possible by contradicting prior unsworn testimony of its members, there was no impartial decisionmaker at the point of parole rescission.
Absolute immunity for quasijudicial officers of parole board does not extend to fabrication of evidence before the initiation of proceedings.
Genuine issues of material fact on merits - remand.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/doc/13-3592_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/hilite/
Federal Circuit: AVID TECHNOLOGY, INC. v. HARMONIC, INC.
Patent
Claim construction drawn from patent prosecution history and given as part of jury charge was not a clear and unambiguous disavowal of claim scope.
Or something like that.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1246.Opinion.1-27-2016.1.PDF
Claim construction drawn from patent prosecution history and given as part of jury charge was not a clear and unambiguous disavowal of claim scope.
Or something like that.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1246.Opinion.1-27-2016.1.PDF
Federal Circuit: AKZO NOBEL COATINGS, INC. v. DOW CHEMICAL COMPANY
Patent
Correct construction of "collection" as place where things accumulate, no literal or equivalent infringement.
Decision not rewritten to match law.
[Again, we don't know many things, but we especially don't know Patent.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1331.Opinion.1-27-2016.1.PDF
Correct construction of "collection" as place where things accumulate, no literal or equivalent infringement.
Decision not rewritten to match law.
[Again, we don't know many things, but we especially don't know Patent.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1331.Opinion.1-27-2016.1.PDF
DC Circuit: Rosalie Simon v. Republic of Hungary
International law
(Srinivasan)
WWII treaty not a categorical bar to claims against Hungarian government, railroad under FSIA, as the treaty does not claim to be an exlusive remedy -- the Allied nations could not waive the rights of non-nationals.
Takings of property incident to the deportations are themselves genocide, and state a claim within the expropriation exception to the FSIA.
Plausible inference of commercial activity, as the funds were later commingled, but insufficient proof in pleadings of US nexus for Hungarian government activities.
Genocidal takings have no internal exhaustion requirements, as insufficient compensation is not the underlying harm.
Comity an open question.
Justiciable Article III claims. (Citing Zivitofsky)
Concurrence: Hungary's implementation of treaty insufficient to bar FSIA claim.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0CE6088155B448E285257F490054E55A/$file/14-7082-1596075.pdf
(Srinivasan)
WWII treaty not a categorical bar to claims against Hungarian government, railroad under FSIA, as the treaty does not claim to be an exlusive remedy -- the Allied nations could not waive the rights of non-nationals.
Takings of property incident to the deportations are themselves genocide, and state a claim within the expropriation exception to the FSIA.
Plausible inference of commercial activity, as the funds were later commingled, but insufficient proof in pleadings of US nexus for Hungarian government activities.
Genocidal takings have no internal exhaustion requirements, as insufficient compensation is not the underlying harm.
Comity an open question.
Justiciable Article III claims. (Citing Zivitofsky)
Concurrence: Hungary's implementation of treaty insufficient to bar FSIA claim.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0CE6088155B448E285257F490054E55A/$file/14-7082-1596075.pdf
DC Circuit: In re: Idaho Conservation League, et al.
Administrative, environment
Plaintiff has standing, as he lives near a mine, and regulations would incentivize reduced emissions and mean quicker cleanups.
Other plaintiffs have standing due to living near rivers.
Putative intervenors do no have Article III standing, as the order merely sets a date for rulemaking, and there is no showing that notice and comment would be insufficient. No statutory standing, as there's no impairment of interests.
Putative intervenors' arguments construed as amici, rejected.
https://www.cadc.uscourts.gov/internet/opinions.nsf/1F012EA1238D7A3C85257F490054E52E/$file/14-1149-1596081.pdf
Order here:
https://www.cadc.uscourts.gov/internet/opinions.nsf/735DB53755E54B5085257F490054E579/$file/14-1149-1596091.pdf
Plaintiff has standing, as he lives near a mine, and regulations would incentivize reduced emissions and mean quicker cleanups.
Other plaintiffs have standing due to living near rivers.
Putative intervenors do no have Article III standing, as the order merely sets a date for rulemaking, and there is no showing that notice and comment would be insufficient. No statutory standing, as there's no impairment of interests.
Putative intervenors' arguments construed as amici, rejected.
https://www.cadc.uscourts.gov/internet/opinions.nsf/1F012EA1238D7A3C85257F490054E52E/$file/14-1149-1596081.pdf
Order here:
https://www.cadc.uscourts.gov/internet/opinions.nsf/735DB53755E54B5085257F490054E579/$file/14-1149-1596091.pdf
Ninth Circuit: MICHAEL NOZZI V. HACLA
Amended opinion, denial of en banc.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/13-56223.pdf
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/13-56223.pdf
Ninth Circuit: YUN LIAO V. MAURICE JUNIOUS
Habeas, Ineffective Assistance
Habeas for ineffective assistance based on defense counsel's acceptance of late-night, telephoned denial of permission for medical study, information that later proved to be incorrect. State habeas finding of lack of prejudice objectively unreasonable given centrality of issue.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/14-55897.pdf
Habeas for ineffective assistance based on defense counsel's acceptance of late-night, telephoned denial of permission for medical study, information that later proved to be incorrect. State habeas finding of lack of prejudice objectively unreasonable given centrality of issue.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/14-55897.pdf
Eighth Circuit: James Saylor v. Randy Kohl, M.D
S1983, Prisons
Qualified immunity for physicians treating inmate with PTSD, given lack of deliberate indifference.
No 1A, 14A retaliation claims based on ending of medication and transfer, as there were legitimate nondiscriminatory reasons for both.
Dissent: Genuine dispute.
http://media.ca8.uscourts.gov/opndir/16/01/143889P.pdf
Qualified immunity for physicians treating inmate with PTSD, given lack of deliberate indifference.
No 1A, 14A retaliation claims based on ending of medication and transfer, as there were legitimate nondiscriminatory reasons for both.
Dissent: Genuine dispute.
http://media.ca8.uscourts.gov/opndir/16/01/143889P.pdf
Eighth Circuit: Sriram Rajasekaran v. Mark Hazuda
Administrative, Immigration
No subject matter jurisdiction over challenge to the level of detail in the agency's notice, as it is fundamentally a statutory procedural rule designed to instruct the agency.
Petitioner not eligible for portability.
http://media.ca8.uscourts.gov/opndir/16/01/143623P.pdf
No subject matter jurisdiction over challenge to the level of detail in the agency's notice, as it is fundamentally a statutory procedural rule designed to instruct the agency.
Petitioner not eligible for portability.
http://media.ca8.uscourts.gov/opndir/16/01/143623P.pdf
Eighth Circuit: Theodore Ingram v. Terminal Railroad Association
ERISA
Where additional evidence is admitted during the proceedings, a court can retain the abuse of discretion standard by making its decision from the administrative record.
Administrator's characterization of relocation expenses was reasonable.
District court did not abuse discretion in finding that Administrator's offset of prior plan's benefits for full vesting -as opposed to the actual early retirement payments - was reasonable.
http://media.ca8.uscourts.gov/opndir/16/01/143589P.pdf
Where additional evidence is admitted during the proceedings, a court can retain the abuse of discretion standard by making its decision from the administrative record.
Administrator's characterization of relocation expenses was reasonable.
District court did not abuse discretion in finding that Administrator's offset of prior plan's benefits for full vesting -as opposed to the actual early retirement payments - was reasonable.
http://media.ca8.uscourts.gov/opndir/16/01/143589P.pdf
Eighth Circuit: Jose Refugio Gomez-Gutierrez v. Loretta E. Lynch
Immigration
State solicitation of prostitution statute categorically a crime of moral turpitude.
Sufficient consideration by board.
http://media.ca8.uscourts.gov/opndir/16/01/143374P.pdf
State solicitation of prostitution statute categorically a crime of moral turpitude.
Sufficient consideration by board.
http://media.ca8.uscourts.gov/opndir/16/01/143374P.pdf
Eighth Circuit: United States v. Brandon Lovell
Sentencing
Above-guidelines sentence not substantively unreasonable when additional counts were dismissed as part of the deal.
http://media.ca8.uscourts.gov/opndir/16/01/143277P.pdf
Above-guidelines sentence not substantively unreasonable when additional counts were dismissed as part of the deal.
http://media.ca8.uscourts.gov/opndir/16/01/143277P.pdf
Sixth Circuit: USA v. Shawn Bivens
Sentencing
No error in court's not grouping multiple crimes based on an ongoing relationship.
http://www.ca6.uscourts.gov/opinions.pdf/16a0021p-06.pdf
No error in court's not grouping multiple crimes based on an ongoing relationship.
http://www.ca6.uscourts.gov/opinions.pdf/16a0021p-06.pdf
Sixth Circuit: Ronald Miller v. Comm'r of Social Security
SSA
Insufficient evidence for ALJ finding, given medical facts in evidence.
http://www.ca6.uscourts.gov/opinions.pdf/16a0020p-06.pdf
Insufficient evidence for ALJ finding, given medical facts in evidence.
http://www.ca6.uscourts.gov/opinions.pdf/16a0020p-06.pdf
Fourth Circuit: Frederick Aikens v. William Ingram, Jr
S1983, Military
S1983 Fourth Amendment claim for monitoring national guardsman's email barred by military abstention, as the harm was incident to military service.
http://www.ca4.uscourts.gov/Opinions/Published/142419.P.pdf
S1983 Fourth Amendment claim for monitoring national guardsman's email barred by military abstention, as the harm was incident to military service.
http://www.ca4.uscourts.gov/Opinions/Published/142419.P.pdf
Fourth Circuit: United States ex rel. Steven May v. Purdue Pharma
FCA
FCA claim prevented by prior claim bar where counsel for qui tam plaintiff had knowledge of prior claims.
http://www.ca4.uscourts.gov/Opinions/Published/142299.P.pdf
FCA claim prevented by prior claim bar where counsel for qui tam plaintiff had knowledge of prior claims.
http://www.ca4.uscourts.gov/Opinions/Published/142299.P.pdf
Fourth Circuit: Central Radio Company Inc. v. City of Norfolk
First Amendment
Municipal sign ordinance was a content-based restriction on speech as it targeted commercial speech.
Aesthetics and traffic safety considerations don't satisfy strict scrutiny.
Insufficient bad intent for selective enforcement claim.
(Appendix: Sign was a protest against pending eminent domain action.)
http://www.ca4.uscourts.gov/Opinions/Published/131996A.P.pdf
Municipal sign ordinance was a content-based restriction on speech as it targeted commercial speech.
Aesthetics and traffic safety considerations don't satisfy strict scrutiny.
Insufficient bad intent for selective enforcement claim.
(Appendix: Sign was a protest against pending eminent domain action.)
http://www.ca4.uscourts.gov/Opinions/Published/131996A.P.pdf
Second Circuit: United States v. Allen
Fourth Amendment
Absent exigent circumstance, a warrantless arrest made across the threshold - where the police are outside and arrestee inside after being summoned to the door by the police - violates the Fourth Amendment.
Compelled by earlier circuit precedent.
http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/1/doc/13-3333_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/1/hilite/
Absent exigent circumstance, a warrantless arrest made across the threshold - where the police are outside and arrestee inside after being summoned to the door by the police - violates the Fourth Amendment.
Compelled by earlier circuit precedent.
http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/1/doc/13-3333_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/1/hilite/
Second Circuit: United States v. Liddon Young
Sentencing
No error in denial of downward departure.
Sentencing court erred in double counting trafficking and subsequent-use-in-felony enhancements, as there was insufficient connection between the trafficking and the eventual offense. Expressio unius.
Error in Obstruction enhancement, as specific intent is necessary for unsworn out of court statements.
http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/2/doc/14-2383_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/2/hilite/
No error in denial of downward departure.
Sentencing court erred in double counting trafficking and subsequent-use-in-felony enhancements, as there was insufficient connection between the trafficking and the eventual offense. Expressio unius.
Error in Obstruction enhancement, as specific intent is necessary for unsworn out of court statements.
http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/2/doc/14-2383_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/2/hilite/
Eleventh Circuit: Brandon Jones v. GDCP Warden
AEDPA, Habeas
Petition for recall of madate resulting from earlier Habeas is a second/successive petition.
No merit in stay pending upcoming en banc holding on whether summary/brief affirmance by highest state court is the final state decision for purposes of federal habeas review, as it would not alter the merits of the underlying Strickland claim.
Insufficient miscarriage of justice to justify recall of mandate sua sponte.
http://media.ca11.uscourts.gov/opinions/pub/files/201114774.ord.pdf
[CB Editorial: The death penalty is morally unjustifiable.]
Petition for recall of madate resulting from earlier Habeas is a second/successive petition.
No merit in stay pending upcoming en banc holding on whether summary/brief affirmance by highest state court is the final state decision for purposes of federal habeas review, as it would not alter the merits of the underlying Strickland claim.
Insufficient miscarriage of justice to justify recall of mandate sua sponte.
http://media.ca11.uscourts.gov/opinions/pub/files/201114774.ord.pdf
[CB Editorial: The death penalty is morally unjustifiable.]
Ninth Circuit: David Zachary v. California Bank and Trust
Bankruptcy
Petitioner can cram down plans over the objection of a dissenting class of unsecured creditors while retaining post-petition property but not while retaining pre-petition property .
(From summary)
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/28/13-16402.pdf
Petitioner can cram down plans over the objection of a dissenting class of unsecured creditors while retaining post-petition property but not while retaining pre-petition property .
(From summary)
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/28/13-16402.pdf
Eighth Circuit: United States v. Quincy Jackson
Immigration
Agency Violence Against Women Act finding that underlying marriage was bona fide did not compel the IJ to accept that finding when balancing deportation arguments (including VAWA) when the IJ had already issued an opinion that the marriage was fraudulent.
http://media.ca8.uscourts.gov/opndir/16/01/143671P.pdf
Agency Violence Against Women Act finding that underlying marriage was bona fide did not compel the IJ to accept that finding when balancing deportation arguments (including VAWA) when the IJ had already issued an opinion that the marriage was fraudulent.
http://media.ca8.uscourts.gov/opndir/16/01/143671P.pdf
Eighth Circuit: Judith Mutie-Timothy v. Loretta E. Lynch
Fourth Amendment
Probable cause for search of aircraft after drug dog alert.
http://media.ca8.uscourts.gov/opndir/16/01/143756P.pdf
Probable cause for search of aircraft after drug dog alert.
http://media.ca8.uscourts.gov/opndir/16/01/143756P.pdf
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/
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