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.
Sixth Circuit: USA v. Ralph Dennis
ERISA
Health care providers have no direct standing under the Act.
Assignment of the right to payment is sufficient to guarantee derivative standing under the Act.
Where a provider and an insurer have a post-reimbursement recoupment agreement and reversal of payment is not subsequently passed back to the customer, a provider's claim that the insurer has recouped covered costs doesn't state a claim under the Act, since the insured customer is not affected by the question.
Circuit split hinted at.
USA v. Ralph Dennis
Third Circuit: USA v. Ralph Dennis
Entrapment
Although the government's actions considered individually would not justify the entrapment instruction, where the investigation goes beyond providing the simple menas for committing the crime, their actions should be considered cumulatively.
Past narcotics convictions can establish separate predisposition for those counts.
OUtrageous prosecution requires conduct substantially beyond entrapment.
USA v. Ralph Dennis
Second Circuit: MPC Franchise, LLC v. Tarntino
Trademarks
The requisite level for scienter under the Lanham Act for fraudulent patent applications is actual knowledge of a competitor's use of the mark.
MPC Franchise, LLC v. Tarntino
The requisite level for scienter under the Lanham Act for fraudulent patent applications is actual knowledge of a competitor's use of the mark.
MPC Franchise, LLC v. Tarntino
Federal Circuit: Per Aarsleff A/S v. US
[Opinion issued under seal. Redacted version to follow.]
Per Aarsleff A/S v. US
Per Aarsleff A/S v. US
DC Circuit: Carlos Alexander v. WMATA
Discrimination
In considering, for purposes of the statute, whether someone is disabled, courts must also consider whether the employer regarded the person as either having that disability or having a record of that disability.
Under the statute, discretionary administrative exhaustion tolls the borrowed statute of limitations.
Carlos Alexander v. WMATA
In considering, for purposes of the statute, whether someone is disabled, courts must also consider whether the employer regarded the person as either having that disability or having a record of that disability.
Under the statute, discretionary administrative exhaustion tolls the borrowed statute of limitations.
Carlos Alexander v. WMATA
DC Circuit: Jeffrey Swaters v. DOT
Administrative
Agency refusal to release specimen from drug test is consistent with regulations, and neither the denial nor the regulation are arbitrary/capricious, given policy objectives.
No constitutional error from denial of discovery.
Jeffrey Swaters v. DOT
DC Circuit: Chris Stovic v. RRRB
Railroads retirement
Act gives courts APA jurisdiction over denials of requests to reopen.
Denial on merits here.
Chris Stovic v. RRRB
DC Circuit: USA v. Juan Vega
Crim
Stream of commerce suffices for circumstantial evidence that deft intended cocaine to reach US.
Sufficient instruction on mens rea.
Urging in closing that jury serve as community conscience and use of first person singular was harmless error, given strength of case.
False testimony not later corrected by govt was not dispositive.
Not issuing missing evidence instruction on lack of govt records on out of court photo lineups was harmless error.
No Brady violation on late-disclosed photo with attribution problems.
No error in refusal to admit notes frm quesitoning as prior inconsistent statement.
Error in manager/supervisor sentencing bump, as no showing that employees knew they were doing something illegal.
No error in admission of mistaken identification, given curative instruction.
Deft claim that Title III has no extraterritorial application, even if true, would not preclude extraterritorial wiretapping.
No error in denial of cross on why cooperating witnesses were wearing electronic monitoring devices.
Drug making video not overly prejudicial.
USA v. Juan Vega
Ninth Circuit: MK Hillside Partners v. CIR
Tax, Estoppel
Provision in statute giving tax court authority to consider a relevant statute of limitations for individual members of a partnership empowers the court to rule that the statute of limitations has not run at the partnership level.
No judicial estoppel, as the positions aren't inconsistent.
MK Hillside Partners v. CIR
Ninth Circuit: USA v. Steven Grovo
Crim, Conspiracy
Given the general mens rea of conspiracy, asynchronous contact on computer bulletin board suffices for actions "in concert" as required by the statute.
Active participation on a bulletin board suffices to prove furtherance of the board's common goal.
Communication with a closed community can constitute advertisement.
Where victim was harmed by both image and subsequent viewing of image, restitution must be disaggregated.
USA v. Steven Grovo
Given the general mens rea of conspiracy, asynchronous contact on computer bulletin board suffices for actions "in concert" as required by the statute.
Active participation on a bulletin board suffices to prove furtherance of the board's common goal.
Communication with a closed community can constitute advertisement.
Where victim was harmed by both image and subsequent viewing of image, restitution must be disaggregated.
USA v. Steven Grovo
Eighth Circuit: United States v. Yousef Qattoum
Crim.
No abuse of discretion in denial of motion to withdraw plea of guilty, as the deft was likely aware of illegal nature of conduct since he had, among other things, been arrested for it previously.
Use of money orders created a tacit understanding of conspiracy to launder money sufficient that there was no plain error in denial of motion to withdraw guilty plea.
United States v. Yousef Qattoum
Eighth Circuit: Bonnie Dick v. Dickinson State University
Torts.
State statute of limitations appropriately borrowed.
A claim alleging a denial of reasonable accommodation is a discrete instance, one that does not require a comprehensive review of the history.
Insufficient factual basis for adverse employment action claim.
Evidence outside of the statute of limitations period does not create a genuine issue of material fact for purposes of summary judgment.
Bonnie Dick v. Dickinson State University
Seventh Circuit: ACF 2006 Corp v. Timothy Devereux
Easterbrook, Contract, Fees
Quantum meruit adjustment to factual findings at trial.
Funds held in a non interest bearing (IOLTA) account are not subject to prejudgment interest. (Possibly. Confusing.)
Victims of lawyer's taking of client funds while practicing in an LLC have a priority claim over a later-erfected secured interest.
ACF 2006 Corp v. Timothy Devereux
Quantum meruit adjustment to factual findings at trial.
Funds held in a non interest bearing (IOLTA) account are not subject to prejudgment interest. (Possibly. Confusing.)
Victims of lawyer's taking of client funds while practicing in an LLC have a priority claim over a later-erfected secured interest.
ACF 2006 Corp v. Timothy Devereux
Seventh Circuit: John H. Germeraad v. Myrick J. Powers
Bankruptcy, FRCP, Mootness
A denial of a trustee's motion to modify is analogous to a 12(b)6 dismissal, and is therefore sufficiently final for appeal when not attributable to a technical defect.
Just as 60(b) motion might be filed again with a different theory, the fact that the trustee might file several motions does not affect their finality for purposes of review.
As the proposed change would relate back to the filing date of the motion, the expiration of the plan's timeframe doesn't make the controversy moot. The fact that denial of discharge is an equitable decision does not affect mootness.
So long as the motion to modify the plan is filed during the pendency of the plan, it is timely.
Although nothing in the Code authorizes a postconfirmation modification to account for increased income, the decision is an equitable one suggested by the purposes of the Code, and is not subjet to any "good faith" requirement.
John H. Germeraad v. Myrick J. Powers
Sixth Circuit: Gianni-Paolo Ferrari v. Ford Motor Company
Discrimination
As safe employment could be found at the plant, iatrogenic opiod use did not impede the major life activity of working.
No genuine issue of material fact as to whether medical restrictions were pretextual, as the medical evidence is corraborated, and there is no proof that the decisionmakers had reason to doubt the medical opinion.
Insufficient causation for FMLA retaliation claim.
Gianni-Paolo Ferrari v. Ford Motor Company
Fifth Circuit: USA v. Derrick Wheaten
AEDPA, Habeas
Untimely Certiorari petition filed with Supreme Court that is denied without sign that the lateness has been excused does not reset the statutory deadline for filing a subsequent Habeas petition. Circuit footnote suggesting otherwise dicta.
Missed deadline by counsel in direct review did not constitute abandonment, as petitioner was timely notified of the late filing and sent a Habeas pamphlet.
Incorrect telephone guidance by Supreme Court clerk didn't cancel the fact that petitioner was on notice of the deadline.
USA v. Derrick Wheaten
Untimely Certiorari petition filed with Supreme Court that is denied without sign that the lateness has been excused does not reset the statutory deadline for filing a subsequent Habeas petition. Circuit footnote suggesting otherwise dicta.
Missed deadline by counsel in direct review did not constitute abandonment, as petitioner was timely notified of the late filing and sent a Habeas pamphlet.
Incorrect telephone guidance by Supreme Court clerk didn't cancel the fact that petitioner was on notice of the deadline.
USA v. Derrick Wheaten
Fifth Circuit: Keith Harris v. Texas Veterans Commission, et al
Equal Protection, Right to Travel
State statute offering tuition benefits for past military service so long as the student enlisted or was inducted while in the state or a resident in the state has a rational basis, as it encourages positive behavior (enlisting, graduating high school) and keeps other residents of the state from being conscripted.
Right to travel is not implicated, as it imposes no penalty on entrants to the state. Had it been implicated, portability of of benefit and gratuitous nature of entitlement would suffice for review.
Keith Harris v. Texas Veterans Commission, et al
State statute offering tuition benefits for past military service so long as the student enlisted or was inducted while in the state or a resident in the state has a rational basis, as it encourages positive behavior (enlisting, graduating high school) and keeps other residents of the state from being conscripted.
Right to travel is not implicated, as it imposes no penalty on entrants to the state. Had it been implicated, portability of of benefit and gratuitous nature of entitlement would suffice for review.
Keith Harris v. Texas Veterans Commission, et al
Fifth Circuit: Carlos Gonzalez v. Able Huerta
S1983, Fourth Amendment
Although the investigative detention was made without reasonable suspicion, reasonable suspicion is too general a principle to be clearly established for purposes of review under S1983. As there was no caselaw holding that a refusal to produce identification on school grounds was not grounds for reasonable suspicion, grant of immunity was proper.
Dissent: specificity refers to the law, not to the factual situation.
Carlos Gonzalez v. Able Huerta
Fifth Circuit: Ronald Heggemeier v. Caldwell County, Texas, et al
Discrimination
As a similarly situated comparator was also terminated and the variance in the comparator's severance can be explained by differences in their situations, no Title VII racial discrimination claim.
No ADEA retaliation, as termination occurred 21 months after initial complaint, with a lateral transfer interposed.
State statute limiting reduction in pay does not place a restriction on at-will nature of employment sufficient for a property interest in continued employment. Conceding at-will employment relative to one supervisor ends the property interest generally.
Statute allowing appointment to state office by elected official does not prevent another arm of the government from terminating the employment.
No abuse of discretion in district court's refusal to exercise ancillary jurisdiction over whistleblower claims.
Ronald Heggemeier v. Caldwell County, Texas, et al
As a similarly situated comparator was also terminated and the variance in the comparator's severance can be explained by differences in their situations, no Title VII racial discrimination claim.
No ADEA retaliation, as termination occurred 21 months after initial complaint, with a lateral transfer interposed.
State statute limiting reduction in pay does not place a restriction on at-will nature of employment sufficient for a property interest in continued employment. Conceding at-will employment relative to one supervisor ends the property interest generally.
Statute allowing appointment to state office by elected official does not prevent another arm of the government from terminating the employment.
No abuse of discretion in district court's refusal to exercise ancillary jurisdiction over whistleblower claims.
Ronald Heggemeier v. Caldwell County, Texas, et al
Third Circuit: Omar Frias-Camilo v. Attorney General United States
Immigration, FRCrimP, Statutory Construction
As the Immigration statute regards convictions as having an adjudication and a punishment, and circuit precedent regards the linking "and" as conjunctive, the FRCrimP standard of conviction cannot be used to interpret the Act. Rather, state actions which incorporate either finding of guilt or punishment can qualify.
Omar Frias-Camilo v. Attorney General United States
Third Circuit: Aguedita Ordonez Tevalan v. Attorney General United States
Immigration
Where a petitioner has filed an appeal with the court, the court is not divested of jurisdiction by the agency's granting of a motion to repoen the matter, particularly where the reopening of the case is for ministerial reissuing of orders and decisions.
Where there is objective evidence of inconsistent statements in the record, there is sufficient evidence for an agency's adverse credibility decision.
Insufficient grounds for protection under CAT.
Aguedita Ordonez Tevalan v. Attorney General United States
Where a petitioner has filed an appeal with the court, the court is not divested of jurisdiction by the agency's granting of a motion to repoen the matter, particularly where the reopening of the case is for ministerial reissuing of orders and decisions.
Where there is objective evidence of inconsistent statements in the record, there is sufficient evidence for an agency's adverse credibility decision.
Insufficient grounds for protection under CAT.
Aguedita Ordonez Tevalan v. Attorney General United States
Third Circuit: Jose Bedolla Avila v. Attorney General United States
Sentencing, Immigration
As the state statute proscribing possession with intent to deliver is analogous to the similar federal statute which has no minimum possession, under modified categorical analysis, the state conviction here is an aggravated felony for sentencing purposes.
Simultaneous removal proceedings by DHS and INS do not offend regulations or Due Process, as there is no direct proscription in the regulations and there was no showing that the simultaneity of the proceedings harmed the petitioner's attempt to present his case.
Jose Bedolla Avila v. Attorney General United States
Second Circuit: Leeward Construction Co. v. American University of Antigua
Arbitration
Where arbitrator commits in initial proceedings to issue a reasoned award, a reasoned award is required.
While an arbitrator's reasoned award need not delve into every argument raised or provide a line-by-line justification for the award, it must set forth relevant facts and factual findings.
Arguing for the original profit margins on the deal is at least a barely colorable justification for the award of same based on bad faith, which is all that is required.
Leeward Construction Co. v. American University of Antigua
Where arbitrator commits in initial proceedings to issue a reasoned award, a reasoned award is required.
While an arbitrator's reasoned award need not delve into every argument raised or provide a line-by-line justification for the award, it must set forth relevant facts and factual findings.
Arguing for the original profit margins on the deal is at least a barely colorable justification for the award of same based on bad faith, which is all that is required.
Leeward Construction Co. v. American University of Antigua
Second Circuit: Smith v. Wenderlich
Double Jeopardy, Sentencing, Habeas
Where a prison term is increased due to offenses committed in prison, the completion of the portion attributable to the initial sentence does not finalize the sentence for purposes of double jeopardy, and a subsequent resentencing to incorporate supervised release is therefore neither contrary to nor an unreasonable application of federal constitutional law.
Smith v. Wenderlich
Federal Circuit: DE SANTIS v. MSPB
Administrative, Employment
Where statute restores a class of appeals according to the law before the class of appeals was revoked, in determining eligibility for the appeal, courts should use the present scheme of employment, as modified by regulations, in combination with the law of the earlier period. A position that had the right of appeal before the change does not therefore have the right of appeal after the change, as it might have been modified by regulations.
DE SANTIS v. MSPB
Where statute restores a class of appeals according to the law before the class of appeals was revoked, in determining eligibility for the appeal, courts should use the present scheme of employment, as modified by regulations, in combination with the law of the earlier period. A position that had the right of appeal before the change does not therefore have the right of appeal after the change, as it might have been modified by regulations.
DE SANTIS v. MSPB
Federal Circuit: ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP
Patent, Dissent from denial of en banc
(Reminder: We don't know many things, but we especially don't know Patent. Entertainment purposes only, as always.)
Using the merits panel to screen patent challenges is contrary to statute, and risks prejudgement.
ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP [ORDER RE EN BANC PETITION]]
(Reminder: We don't know many things, but we especially don't know Patent. Entertainment purposes only, as always.)
Using the merits panel to screen patent challenges is contrary to statute, and risks prejudgement.
ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP [ORDER RE EN BANC PETITION]]
Tenth Circuit: Cropper v. CIR
Tax, Administraive
Although an irregularity in the postal forms prevented a presumption of receipt upon mailing, an agency appeal holding that the totality of the evidence indicated mailing was not an abuse of discretion, and since the statute imposes an affirmative duty on the recipient to challenge the mailing, the loss of the presumption of receipt does not prevent the levy.
Cropper v. CIR
Although an irregularity in the postal forms prevented a presumption of receipt upon mailing, an agency appeal holding that the totality of the evidence indicated mailing was not an abuse of discretion, and since the statute imposes an affirmative duty on the recipient to challenge the mailing, the loss of the presumption of receipt does not prevent the levy.
Cropper v. CIR
Ninth Circuit: SELSO ORONA V. USA
Statute of Limitations, Habeas, AEDPA
The statutory one-year filing deadline for second or successive Habeas applications based on claims made retroactive to cases on collateral review is tolled by filing an application in the court of appeals to proceed with the writ, so long as the application states the claim at issue.
SELSO ORONA V. USA
Ninth Circuit: USA V. JORGE CISNEROS
ACCA residual clause
As the state Burglary statute encompasses structures that are not included in the generic federal definition of burglary, sentencing enhancements under the federal statute cannot be applied.
[cf. S. Ct. U.S. this AM.]
USA V. JORGE CISNEROS
Ninth Circuit: CARLOS BAQUERIZO V. GARDEN GROVE UNIFIED SCH DIST
IDEA
As the procedural violations of the act were caused in part by the programs retained by the plaintiff and do not rise to the level that would deny a free appropriate public education, no reimbursement required under the act.
CARLOS BAQUERIZO V. GARDEN GROVE UNIFIED SCH DIST
Seventh Circuit: Rashaad Imani v. William Pollard
Sixth Amendment, Habeas, AEDPA
In colloquy with a deft who has requested to proceed without counsel, the duty of inquiry rests with the judge, and cannot be converted to an affirmative burden on the deft to prove capacity.
Where an articulate deft is without illness or impairment,deft is likely outside of the narrow range of cases precluded from self-representation.
Denial of request made weeks before trial on scheduling grounds is constitutional error.
Rashaad Imani v. William Pollard
Seventh Circuit: Carlos G. Rocha v. J. Gordon Rudd, Jr.
FRCP, Legal malpractice, Fraud
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Seventh Circuit: Nancy Thomas v. Carolyn Colvin
Administrative, SSA
Although the opinon of a specialist is preferred, a diagnosis in a specialist area is not per se inadmissible.
Uncritical acceptance of reviewing physicians' opinions on overall impairment where there is evidence to the contrary from the initial diagnosis does not suffice in review for substantial evidence.
Nancy Thomas v. Carolyn Colvin
Seventh Circuit: Women's Health Link, Incorporated v. Fort Wayne Public Transportation
Free Speech, Posner.
Where the government creates a facility for communicative activity, it is inappropriate to look beyond the four corners of the speech itself in determining whether the speech can be barred.
Bus ads -- with image and Hamlet quote.
Women's Health Link, Incorporated v. Fort Wayne Public Transportation
Where the government creates a facility for communicative activity, it is inappropriate to look beyond the four corners of the speech itself in determining whether the speech can be barred.
Bus ads -- with image and Hamlet quote.
Women's Health Link, Incorporated v. Fort Wayne Public Transportation
Fifth Circuit: Trevor Charles, et al v. Thomas Atkinson, et al
FRCP
Where a named deft does not make an appearance in a civil suit, an unreturned order of service -- absent finding of service or nonservice by the court -- bars direct appellate review under the statute, given the possibility of service.
Trevor Charles, et al v. Thomas Atkinson, et al
Fifth Circuit: USA v. Kevin Brown
Sentencing
Although the above-guidelines imposition of supervised release was incorrect and substantially violated the deft's rights, the deft's history and acceptance of the sentence at trial make the sentence incorrect but fair.
USA v. Kevin Brown
Second Circuit: Terry v. Inc. Vill. of Patchogue
FRCP
Pro se litigants must at least set forth identifiable arguments in pleadings.
Dismissal in state court for not stating a claim due to prolix and disjointed filing imposes a res judicata effect on the claim in a subsequent federal action.
No error in refusing leave to amend where the amendments were facially conclusory.
Terry v. Inc. Vill. of Patchogue
Tenth Circuit: United States v. Willis
FRE, Due Process, Miranda
No error in introduction of prior bad acts where the conduct was similar and spoke to the specific question in the present case.
Where tribal law required juvenile records to be expunged, and, contrary to that law, the records are later transmitted to another jurisdiction for use in a criminal case, there is no Due Process violation in the second forum.
Where deft invokes right to counsel, subsequent administrative questioning for 30 minutes does not preclude a subsequent immediate waiver of the right.
As deft could attack credibility of victim under the same theory in other ways, no error in exclusion of victim's history.
Where objection for vouching is unspecific, and deft elicits avouching of vouching on cross, review is for plain error.
Where only one harmless error is found on review, no cumulative error.
United States v. Willis
No error in introduction of prior bad acts where the conduct was similar and spoke to the specific question in the present case.
Where tribal law required juvenile records to be expunged, and, contrary to that law, the records are later transmitted to another jurisdiction for use in a criminal case, there is no Due Process violation in the second forum.
Where deft invokes right to counsel, subsequent administrative questioning for 30 minutes does not preclude a subsequent immediate waiver of the right.
As deft could attack credibility of victim under the same theory in other ways, no error in exclusion of victim's history.
Where objection for vouching is unspecific, and deft elicits avouching of vouching on cross, review is for plain error.
Where only one harmless error is found on review, no cumulative error.
United States v. Willis
Tenth Circuit: M.G. v. Young
S1983
State consent to a petition for relief from judgment is in itself insufficient indication of innocence to qualify as a termination favorable enough to justify a S1983 action for malicious prosecution.
M.G. v. Young
Ninth Circuit: Madeline Cardenas v. Loretta E. Lynch
Immigration, Due Process, Precedent
Narrowest concurrence controls on a plurality.
Where an immigration officer denies a visa, the rights of third party U.S. citizens are not harmed where there are discrete factual predicates found that correspond to a valid statute. Burden is on the petitioner to establish bad faith.
Assertion of racial prejudice and mistaken tattoo identification insufficient showing for bad faith.
Madeline Cardenas v. Loretta E. Lynch
Ninth Circuit: Idaho Conservation League v. BPA
Kozinski, Environment, Administrative Law
Agency dam management decision to revert to flexible winter water level does not require an environmental review under the statute, as the temporary shift to fixed-level didn't require one.
Idaho Conservation League v. BPA
Fifth Circuit: Sealed Appellee v. Sealed Appellant
Statutory Construction, Double Jeopardy
Where the statute proscribes transportation of somebody in order to do something, it suffices that the intent be an efficient and compelling reason for the transportation, not necessarily the exclusive intent.
Where the statute proscribes crossing a state line, international travel suffices, as there is a state boundary interposed.
Where one statute proscribes crossing a state line in order to do something, and another proscribes transporting someone internationally or across a state line in order to do the same thing, no double jeopardy.
Where PSR uncontrovertedly describes conduct without providing specifics, it is a fair basis for a sentencing enhancement.
Sealed Appellee v. Sealed Appellant
Fifth Circuit: Michael Norris v. Lorie Davis, Director
AEDPA, Habeas
Circuit precedent at the time of conviction clearly established the need for a general mitigation instruction where there was evidence of good character.
Fleeting reference to federal claim in state Habeas petition did not exhaust the claim.
A series of smaller federal claims can't be accumulated into a viable, freestanding one.
Sufficient evidence.
No Strickland error where deft's lawyer elicits fact of prior convictions, doesn't preserve objection to admission of deft's statement to police.
Michael Norris v. Lorie Davis, Director
Fourth Circuit; US v. Martin Barcenas-Yanez
Statutory construction
Mens rea element of state crime is not divisible, as jury need not agree on anything beyond the terms of the law. Modified categorical approach in caselaw of sister circuit does not compel the use of modified categorical approach in the present forum.
Circuit split flagged on the specific holding (Texas assault statute.)
US v. Martin Barcenas-Yanez
Mens rea element of state crime is not divisible, as jury need not agree on anything beyond the terms of the law. Modified categorical approach in caselaw of sister circuit does not compel the use of modified categorical approach in the present forum.
Circuit split flagged on the specific holding (Texas assault statute.)
US v. Martin Barcenas-Yanez
Fourth Circuit: In Re: Terrence Wright
Habeas, AEDPA
As the state prisoner Habeas statute is more specific than the general federal Habeas statute, petitions relating to the incarceration that do not challenge the underlying conviction arise under the state prisoner Habeas statute. Circuit split flagged.
Where the claim was available to the petitioner at the time of an earlier petition, pre-AEDPA abuse-of-writ principles justify denial of the writ.
In Re: Terrence Wright
As the state prisoner Habeas statute is more specific than the general federal Habeas statute, petitions relating to the incarceration that do not challenge the underlying conviction arise under the state prisoner Habeas statute. Circuit split flagged.
Where the claim was available to the petitioner at the time of an earlier petition, pre-AEDPA abuse-of-writ principles justify denial of the writ.
In Re: Terrence Wright
Fourth Circuit: Gerard Morrison v. County of Fairfax, VA
Employment, Administrative
The "blue collar" provision of the exceptions to the exceptions to the FLSA overtime statute does not imply a "blue collar" requirement to subsequent categories, such as emergency responders.
Auer deference to agency determination that the test for the "emergency responder" is one of the employee's primary duty.
Fire captains primarily fight fires. Exempt from exemption, and therefore covered.
Gerard Morrison v. County of Fairfax, VA
The "blue collar" provision of the exceptions to the exceptions to the FLSA overtime statute does not imply a "blue collar" requirement to subsequent categories, such as emergency responders.
Auer deference to agency determination that the test for the "emergency responder" is one of the employee's primary duty.
Fire captains primarily fight fires. Exempt from exemption, and therefore covered.
Gerard Morrison v. County of Fairfax, VA
First Circuit: Frangos v. Bank of America, N.A.
FRCP
Where a state court issues an injunction against a foreclosure without notice and the matter is subsequently removed to federal court, the case presents no genuine issue of material fact where the present foreclosure action has ceased and nominal damages have been waived.
Frangos v. Bank of America, N.A.
First Circuit: Sig Sauer, Inc. v. Brandon
Administrative law
Where the statute bans a device with only one intended use, an agency ruling that bans a device theoretically capable of multiple uses is not arbitrary and capricious where the manufacturer's intent can be reasonably determined.
Sig Sauer, Inc. v. Brandon
First Circuit: Lima v. Lynch
Immigration
Given jurisdiction-stripping provision o relevant law, court has no jurisdiction to review denial of withholding of removal where the agency relied on police reports ancillary to a subsequently vacated conviction. The challenge is a factual one, not a legal or constitutional one.
Lima v. Lynch
First Circuit: US v. Carrasquillo-Penaloza
Plea Deals
As Commerce Clause challenge to the statute does not present a jurisdictional issue, a plea agreement with a specific and written waiver of appeals bars the challenge on direct appeal.
US v. Carrasquillo-Penaloza
Federal Circuit: Immersion Corporation v. HTC Corporation
Patents, (FRCP)
Given longstanding agency practice, where the filing of a continuation application and the patenting of the device occur on the same day, the former is construed to precede the latter.
Immersion Corporation v. HTC Corporation
Given longstanding agency practice, where the filing of a continuation application and the patenting of the device occur on the same day, the former is construed to precede the latter.
Immersion Corporation v. HTC Corporation
DC Circuit: United States v. Philip Morris USA Inc.
FCA
Relator's FCA action barred due to prior disclosure of the general practice.
Court-ordered disclosures are sufficient to trigger the bar.
Ancillary contractual violations would have been discovered after the principal one was revealed.
Competitor's knowledge of practices was secondhand, as he had no affiliation with the deft.
United States v. Philip Morris USA Inc.
DC Circuit: Rene Lopez v. Council on American-Islamic
Agency, Tort
Given close interrelation between national advocacy organization and local chapter, genuine issue of material fact exists as to whether an actual agency relationship existed with respect to unlicensed legal practice.
Rene Lopez v. Council on American-Islamic
DC Circuit: Verizon New England Inc. v. NLRB
Labor law
As the arbitrator's order deprived the union of a right that was waiveable under the Act, and there was no palpable error, the Board should have upheld the arbitration ruling.
Verizon New England Inc. v. NLRB
As the arbitrator's order deprived the union of a right that was waiveable under the Act, and there was no palpable error, the Board should have upheld the arbitration ruling.
Verizon New England Inc. v. NLRB
DC Circuit: NLRB v. Southwest Regional Council
Labor Law
Board did not distinguish precedent to the contrary when holding that presence of management in the room during the signing of representation cards was an unfair labor practice.
NLRB v. Southwest Regional Council
Tenth Circuit: Mayfield v. Bethards
Animal Law, Fourth Amendment
Warrantless killing of pet dog was a seizure of property under the Fourth Amendment, qualified immunity denied.
Mayfield v. Bethards
Tenth Circuit: Pikk v. Pedersen
Corporations, Board Law
To state a claim, suit relying on futility exception must plead facts that establish that directors faced a substantial risk of liability under state statute.
Intentionality requirement implies knowledge of wrongfulness.
Lack of independence not proven
Pikk v. Pedersen
Tenth Circuit: United States v. Holloway
Ineffective Assistance, Fraud, Sentencing
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Eighth Circuit: United States v. Marvance Robinson
Sentencing, ACCA residual clause
Where the record does not establish whether deft was sentenced according to the use of generic predicate convictions or qualitatively specific ones, remand.
Where the record does not establish whether deft was sentenced according to the use of generic predicate convictions or qualitatively specific ones, remand.
United States v. Marvance Robinson
Eighth Circuit: Jerry Von Rohr v. Reliance Bank
Administrative
Deference to agency finding that a contract claim for one year of post-employment salary was barred by FDIC "golden parachute" law, as contrary precedent involved staturory, not contract, claims.
Auer deference to agency on scope not relevant, as agency cites Blacks Law Dictionary for disputed term. Plain meaning.
Deference to agency finding that a contract claim for one year of post-employment salary was barred by FDIC "golden parachute" law, as contrary precedent involved staturory, not contract, claims.
Auer deference to agency on scope not relevant, as agency cites Blacks Law Dictionary for disputed term. Plain meaning.
Jerry Von Rohr v. Reliance Bank
Eighth Circuit: Automated Matching Systems v. U.S. Securities and Exchange
Administrative, Securities
Chevron deference to agency finding that exercise of the powers traditionally associated with large-volume exchanges categorically precludes classification as an exchange exempt from the registration requirements.
Ancillary challenges to agency finding barred under APA.
Automated Matching Systems v. U.S. Securities and Exchange
Eighth Circuit: Jason Procknow v. Hugh Curry
FRE,
Admission of prior bad act - impersonating a peace officer - harmless error.
Conviction for attempted murder went to reasonableness of the use of force during arrest for parole violation.
Motion of hands toward body of prone plaintiff after two taserings made the application of a third tasering not unreasonable.
Admission of prior bad act - impersonating a peace officer - harmless error.
Conviction for attempted murder went to reasonableness of the use of force during arrest for parole violation.
Motion of hands toward body of prone plaintiff after two taserings made the application of a third tasering not unreasonable.
Jason Procknow v. Hugh Curry
Eighth Circuit: Richland/Wilkin Joint Powers v. Fargo-Moorhead Flood Diversion
Environment, FRCP
District Court injunction upheld, given procedural harms and risk to plaintiffs during the pendency of procedural review.
No error in determination that the project was part of a larger project.
Given the administrative and democratic aspects of the planning process the appropriate standard for merits was that the movant had a fair chance of ultimately prevailing.
Extraterritorial application of foreign state regulatory statute can be considered at the preliminary injunction stage, since the foreign state's interest (?) would be served by the use of the law.
Multistate nature means that Dormant Commerce Clause doesn't bar state statute.
Public interest allowed the injunction to issue without payment of a bond.
District Court injunction upheld, given procedural harms and risk to plaintiffs during the pendency of procedural review.
No error in determination that the project was part of a larger project.
Given the administrative and democratic aspects of the planning process the appropriate standard for merits was that the movant had a fair chance of ultimately prevailing.
Extraterritorial application of foreign state regulatory statute can be considered at the preliminary injunction stage, since the foreign state's interest (?) would be served by the use of the law.
Multistate nature means that Dormant Commerce Clause doesn't bar state statute.
Public interest allowed the injunction to issue without payment of a bond.
Richland/Wilkin Joint Powers v. Fargo-Moorhead Flood Diversion
Eighth Circuit: Raphael Donnell v. United States
AEDPA, Sentencing
Challenge to advisory sentencing guideline is merely suggested by Supreme Court holding on mandatory sentencing guideline, not compelled by it, so the petition is barred as second/successive.
Challenge to advisory sentencing guideline is merely suggested by Supreme Court holding on mandatory sentencing guideline, not compelled by it, so the petition is barred as second/successive.
Raphael Donnell v. United States
Eighth Circuit: Grand Juror Doe v. Robert McCulloch
FRCP
District court erred in dismissing grand juror's 1A challenge to confidentiality laws in order to allow for a state resolution of the claim, as the statutory scheme isn't that complex. Proper remedy is prudential stay.
District court erred in dismissing grand juror's 1A challenge to confidentiality laws in order to allow for a state resolution of the claim, as the statutory scheme isn't that complex. Proper remedy is prudential stay.
Grand Juror Doe v. Robert McCulloch
Eighth Circuit: Laquince Hogan v. Wendy Kelley
Ineffective Assistance, Fourth Amendment
Warrantless search of closed container not a basis for ineffective assistance habeas, given inevitable discovery.
Laquince Hogan v. Wendy Kelley
Seventh Circuit: USA v. Charles A. Evans
Sentencing
Sentencing bump for maintaining premises for drug distribution upheld, since use of the house by other people didn't foreclose the finding.
Obstruction sentencing bump not foreclosed by subsequent acceptance of responsibility in guilty plea.
USA v. Charles A. Evans
Seventh Circuit: Jacob Saathoff v. Andre Davis
FRCP, S1983, Animal Law
No abuse of discretion in denial of sanctions or new trial where trial testimony of officer varied substantially from interrogatory, given vagueness of questions and the chance to respond at trial.
Where a police officer is called to a dogfight and shoots a dog that might or might not have been n top at the time, the standard is reasonable use of force, not inevitability of use of force.
Sufficient evidence.
Jacob Saathoff v. Andre Davis
Seventh Circuit: Semir Sirazi v. General Mediterranean Holding
Posner, Money
Buyout where debtor had contrary contractual obligations amounted to tortious interference, and various other things, as the company was on notice of the contract obligations.
As forgiveness of other obligations that substantially reduced the buyout price was established to be proceeds of the transaction by expert accounting testimony, no error in the jury's counting it as such, despite the fact that it could not have been used to fulfill the contrary contractual obligation.
Unjust enrichment, conspiracy claims justified, given that there was unjust enrichment & conspiracy.
Under state law, refinancing a loan and assignment of the loan are identical with respect to a contract referencing the loan.
Award should have been reduced by funds awarded in bankruptcy.
Unjust enrichment award against individual upheld, given ownership of company that was enriched. Punitive damages inappropriate.
Semir Sirazi v. General Mediterranean Holding
Sixth Circuit: Adam Eggers v. Warden, Lebanon Corr. Inst.
Habeas, FRCrimP
State court holding that an assertion of innocence during sentencing allocution didn't require the court to conduct a hearing into the voluntary nature of the plea was not contrary to or an unreasonable application of Supreme Court precedent.
Adam Eggers v. Warden, Lebanon Corr. Inst.
State court holding that an assertion of innocence during sentencing allocution didn't require the court to conduct a hearing into the voluntary nature of the plea was not contrary to or an unreasonable application of Supreme Court precedent.
Adam Eggers v. Warden, Lebanon Corr. Inst.
Sixth Circuit: Cheryl Minor v. Comm'r of Social Security
Fees
Court's adoption of magistrate's lodestar fees calculation was insufficiently explained, as court adopted statutory cap contrary to state bar numbers and disputed amount of time spent.
Cheryl Minor v. Comm'r of Social Security
Court's adoption of magistrate's lodestar fees calculation was insufficiently explained, as court adopted statutory cap contrary to state bar numbers and disputed amount of time spent.
Cheryl Minor v. Comm'r of Social Security
Fifth Circuit: Jimmie Williams v. J.B. Hunt Transport, Inc.
ADA
Where the plaintiff's physician and the deft's physician disagree on whether the plaintiff is capable of doing the job courts may impose a prudential administrative exhaustion requirement to reconcile the physicians' opinions.
Jimmie Williams v. J.B. Hunt Transport, Inc.
Where the plaintiff's physician and the deft's physician disagree on whether the plaintiff is capable of doing the job courts may impose a prudential administrative exhaustion requirement to reconcile the physicians' opinions.
Jimmie Williams v. J.B. Hunt Transport, Inc.
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/
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