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.
Ninth Circuit: EMILY ATTMORE V. CAROLYN COLVIN
SSA
ALJ must compare medical evidence of improvement with the medical evidence indicating disability.
Temporary improvements in psychiatric condition must be sustained and broad in scope to warrant adjustment of the finding.
EMILY ATTMORE V. CAROLYN COLVIN
Eighth Circuit: Larry Schaefer v. Dale Putnam
FRCP
Claim preclusion bars an action where the parties had notice of the additional claim, might have amended the first claim to incorporate it, and there was nothing preventing a full and fair adjudication of the claims arising out of the transaction.
Larry Schaefer v. Dale Putnam
Claim preclusion bars an action where the parties had notice of the additional claim, might have amended the first claim to incorporate it, and there was nothing preventing a full and fair adjudication of the claims arising out of the transaction.
Larry Schaefer v. Dale Putnam
Eighth Circuit: United States v. Alphonso Wynn
Statutory Interpretation
A housekeeping supervisor at a VA hospital is a federal official for purposes of the threats statute, as "official" is not being used as a term of limitation.
Telephone hotline is not entrapment, doesn't trigger privilege.
United States v. Alphonso Wynn
Eighth Circuit: United States v. Danny Lewis
Sentencing
Court did not need to specifically calculate the amended guidelines range before holding that a deft with an upward variance would not qualify for a certain relief.
United States v. Danny Lewis
Eighth Circuit: United States v. Quentin Tidwell
Habeas, Sentencing
In de novo resentencing subsequent to a successful collateral challenge to the conviction, the court may consider convictions after the initial sentencing when compiling the criminal history of the deft.
Dissent: facts are muddled here -- AUSA incorrectly described relationship between the two sentences.
United States v. Quentin Tidwell
In de novo resentencing subsequent to a successful collateral challenge to the conviction, the court may consider convictions after the initial sentencing when compiling the criminal history of the deft.
Dissent: facts are muddled here -- AUSA incorrectly described relationship between the two sentences.
United States v. Quentin Tidwell
Eighth Circuit: United States v. Santana Drapeau
FRE, Tribe Law
No plain error/abuse of discretion in allowing testimony on priors, since there was no proof of prejudice given the curative instruction, and the testimony might somehow have been relevant.
Uncounseled tribal court convictions are valid predicates
United States v. Santana Drapeau
Eighth Circuit: United States v. Scott Sholds
Sentencing
Sentence is not substantively unreasonable for lack of mitigation for being based on multiple recordings of the same event.
No abuse of discretion in within-guidelines sentence,as there is no implicit obligation of uniformity in sentencing.
United States v. Scott Sholds
Seventh Circuit: RTP LLC v. Orix Real Estate Capital, Inc.
FRCP
For purposes of diversity, when a trust (as opposed to a trustee) litigates, it takes the citizenship of its beneficiaries.
RTP LLC v. Orix Real Estate Capital, Inc.
Seventh Circuit: USA v. Kenyon Walton
Fourth Amendment
Defts' conflicting stories about a prior search of the car provided sufficient reasonable suspicion to justify prolonging Terry stop to allow a dog to sniff the car after issuance of written warning.
USA v. Kenyon Walton
Sixth Circuit: In Re Michael Stansell
Habeas, AEDPA
A Habeas petition challenging a resentencing to add a period of post-release control is not second or successive for purposes od AEDPA.
Technical changes in the sentence, however, do not similarly reset the count.
In Re Michael Stansell
Sixth Circuit: Self-Insurance Inst. of Am. v. Rick Snyder
ERISA, Preemption
State tax on insurance claims is not preempted by express preemption provision of ERISA, as the recordkeeping and residency requirements do no impermissably intrude on the purposes of the act.
Self-Insurance Inst. of Am. v. Rick Snyder
Sixth Circuit: Sierra Club v. United States Forest Serv.
Environment, Administrative
No error in categorical exclusion from environmental review, since, inter alia, the present company is substantially the same as the one earlier granted a permit, and increased flow through the pipeline is not a material change in the original grant, which was for an easement of a certain width.
Sierra Club v. United States Forest Serv.
No error in categorical exclusion from environmental review, since, inter alia, the present company is substantially the same as the one earlier granted a permit, and increased flow through the pipeline is not a material change in the original grant, which was for an easement of a certain width.
Sierra Club v. United States Forest Serv.
Sixth Circuit: Anthony Smith, Jr. v. Joy Technologies, Inc.
Torts
Under state law, in products liability, there is no duty to warn where the danger is known.
Anthony Smith, Jr. v. Joy Technologies, Inc.
Fifth Circuit: Markle Interests, L.L.C. v. U.S. Fish and Wildlife
Environment
Loss of property value confers sufficient Article III standing.
Agency finding that land was essential for conservation of a species did not have to establish that the species was present there.
No specific methodology of economic impact assessment is compelled by statute.
Sufficient interstate commerce when considered in the aggregate.
No impact statement required, as there is no change to be made in the physical environment.
Dissent: Not a suitable habitat for the species.
Markle Interests, L.L.C. v. U.S. Fish and Wildlife
Loss of property value confers sufficient Article III standing.
Agency finding that land was essential for conservation of a species did not have to establish that the species was present there.
No specific methodology of economic impact assessment is compelled by statute.
Sufficient interstate commerce when considered in the aggregate.
No impact statement required, as there is no change to be made in the physical environment.
Dissent: Not a suitable habitat for the species.
Markle Interests, L.L.C. v. U.S. Fish and Wildlife
Fifth Circuit: USA v. Jose Bedoy
Obstruction, Crim
No error in finder of fact's determination that the deft knew of the grand jury investigation and that the agents were intertwined with it; this suffices for the requisite actual knowledge.
Jury instructions with an extra element did not heighten the prosecutor's burden.
Deft's instruction to potential witness went beyond simply information about the right to remain silent.
No constructive amendment on count alleging destruction of physical object, given deft's instruction to get rid of a phone number -- and sufficient evidence existed to prove that he intended the destruction of the phone.
USA v. Jose Bedoy
No error in finder of fact's determination that the deft knew of the grand jury investigation and that the agents were intertwined with it; this suffices for the requisite actual knowledge.
Jury instructions with an extra element did not heighten the prosecutor's burden.
Deft's instruction to potential witness went beyond simply information about the right to remain silent.
No constructive amendment on count alleging destruction of physical object, given deft's instruction to get rid of a phone number -- and sufficient evidence existed to prove that he intended the destruction of the phone.
USA v. Jose Bedoy
Fifth Circuit: Jay Isaac Hollis v. Loretta Lynch, et al
Guns, Standing
Parallel state prohibition doesn't moot the claim when the argument is a constitutional one, since the state statute would presumably subsequently be found unconstitutional, and might separately legitimize the protected conduct.
As a trust holds property for the benefit of the beneficiaries, a gun owned by the trust would be considered to be possessed by the beneficiary. Even where trust is considered to be in possession, a natural person might also considered to be in possession.
No Second Amendment protection for machine guns, as they are dangerous and unusual and therefore not in common use.
Equal Protection analysis subsumed in Second Amendment calculus.
Jay Isaac Hollis v. Loretta Lynch, et al
Fifth Circuit: Karen Bacharach v. Suntrust Mortgage, Inc.
FCRA
Commercial real estate transaction nixed by inaccurate reporting was not within the scope of the Act.
Insufficient proof that personal real estate transaction was lost because of the false information.
Uncorroborated assertion that doctors were consulted was insufficient for emotional distress.
Karen Bacharach v. Suntrust Mortgage, Inc.
Commercial real estate transaction nixed by inaccurate reporting was not within the scope of the Act.
Insufficient proof that personal real estate transaction was lost because of the false information.
Uncorroborated assertion that doctors were consulted was insufficient for emotional distress.
Karen Bacharach v. Suntrust Mortgage, Inc.
Fourth Circuit: Solers, Incorporated v. IRS
FOIA
Trial court in camera review meant that the agency didn't have to make a showing on all of the common-law elements adjudicating the withholding of documents.
No abuse of discretion on merits, given thought-process excepetion, etc.
Solers, Incorporated v. IRS
Fourth Circuit: Raleigh Wake Citizens Assoc v. Wake County Board of Election
Elections, OPOV
Where the redistricting population variation is less than 10%, the plaintiff must show by a preponderance of the evidence that improper considerations predominate in the explanation.
Error to exclude expert statistical testimony. Although it is not compelled by precedent, it would serve to identify possible explanations for the mapping.
Plan violated state & federal OPOV given lack of testimony from legislatures, pretextual justifications for the shifts, and demonstration that traditional redistricting practices were not followed.
No abuse of discretion in trial court's holding that references to race in the legislative record did not establish improper racial motive.
Dissent -- if abusive partisanship is justicable, it has to be specifically proven, not suggested by statistics.
Raleigh Wake Citizens Assoc v. Wake County Board of Election
Where the redistricting population variation is less than 10%, the plaintiff must show by a preponderance of the evidence that improper considerations predominate in the explanation.
Error to exclude expert statistical testimony. Although it is not compelled by precedent, it would serve to identify possible explanations for the mapping.
Plan violated state & federal OPOV given lack of testimony from legislatures, pretextual justifications for the shifts, and demonstration that traditional redistricting practices were not followed.
No abuse of discretion in trial court's holding that references to race in the legislative record did not establish improper racial motive.
Dissent -- if abusive partisanship is justicable, it has to be specifically proven, not suggested by statistics.
Raleigh Wake Citizens Assoc v. Wake County Board of Election
Third Circuit: Candice Staruh v. Superintendent Cambridge
FRE, Hearsay, Habeas, AEDPA
Refusal to allow hearsay evidence of admission of guilt by a family member of the deft was not contrary to or an unreasonable application of constitutional law, as there were insufficient indicia of reliability and the speaker had an incentive to mislead the court.
Candice Staruh v. Superintendent Cambridge
First Circuit: Winkelman v. CVS Caremark Corporation
FCA, FRCP
Documents that the court of first instance took judicial notice of on the assumption that the Act's public disclosure bar was jurisdictional are properly considered in appellate review, even when the review declines to construe the bar as jurisdictional.
Public disclosure of price gouging sufficed to trigger public dislosure bar for relator asserting claim that that the vendor engaged in a scheme to defraud, despite relator's disclosure of increased temporal and geographic scope.
Winkelman v. CVS Caremark Corporation
First Circuit: Sullivan v. Marchilli
Souter, Habeas, Crim
State court did not unreasonably apply federal law on the issue, as the allegedly vague prohibition is found in the federal caselaw as well.
Due Process argument that the court would not have determined the image to fall within the statute if the proper First Amendment limits had been followed is irrelevant, since the state appellate review did not unreasonably apply the governing law.
Sullivan v. Marchilli
State court did not unreasonably apply federal law on the issue, as the allegedly vague prohibition is found in the federal caselaw as well.
Due Process argument that the court would not have determined the image to fall within the statute if the proper First Amendment limits had been followed is irrelevant, since the state appellate review did not unreasonably apply the governing law.
Sullivan v. Marchilli
Eighth Circuit: United States v. Kaylo Roelandt
Fourth Amendment
Given police knowledge of gang affiliation, past felony conviction, and likelihood of retaliatory shootings in the area due to a recent shooting (in addition to, apparently, a CI tip), furtive behavior sufficed for a Terry stop.
United States v. Kaylo Roelandt
Eighth Circuit: Patrick A. Dadd v. Anoka County
Prisons, S1983
Deliberate indifference suit states a claim where arresting officers and jail personnel were told of recent dental surgery but withheld pain relievers. There is no implicit passage-of-time requirment for deliberate indifference claims.
As the timing-based assertion of qualified immunity was nonfrivolous, the other arguments won't be sanctioned.
Patrick A. Dadd v. Anoka County
Sixth Circuit: USA v. Ryan Collins - Northern District of Ohio at Akron
Sentencing
Post-verdict jury poll as to appropriate sentence was not an inappropriate factor in sentencing judge's decision.
Sentence was not substantively unreasonable.
USA v. Ryan Collins - Northern District of Ohio at Akron
Fifth Circuit: Hartford Casualty Insurance Co, et al v. DP Engine
Insurance
Under state law, no duty to defend if the policy excludes professional services and all of the actions described in the complaint require professional training.
Given the many theories of harm and recovery, error to rule that duty to defend was coeval with duty to indemnify.
Counterclaims relied on duty to defend.
Hartford Casualty Insurance Co, et al v. DP Engine
Second Circuit: In re Payment Card Interchange Fee and Merchant Discount Antitrust
Class Actions
Error to certify a class as settlement-only where injunctive and monetary remedies sought created conflicting interests. Counsel had little incentive to zealously fight for injunctive component, given fee distribution, and class members could not opt-out.
Settlement agreement a nullity. [Rather a lot of money.]
In re Payment Card Interchange Fee and Merchant Discount Antitrust
First Circuit: Baker v. Harrington
Legal Ethics, Bankruptcy
Misleading characterization of statute and precedent calculated to delay the proceedings is an impermissible artifice of zeal.
Sanction of having to enroll in a Legal Ethics course upheld.
Baker v. Harrington
First Circuit: Worcester v. Springfield Terminal Railway
FRCP, Erie
In determining when the clock is tolled for filing of an appeal, the critical question is whether the court is involved in ending the last motion filed. A motion filed and withdrawn without court involvement does not toll the limit, but a motion filed and then withdrawn in a telephone colloquy stops the clock.
No error in use of common law standard where federal statute had no standard for punitive damages as opposed to borrowing state law standard, given legislation's intent of standardizing the remedy and the background principles of common law against which Congress legislates.
Worcester v. Springfield Terminal Railway
First Circuit: Rivera-Rivera v. US
Ineffective Assistance, Interstate Commerce
No ineffective assistance in lack of objection to interstate commerce element to mall robbery, as subsequent appellate review said that the trial court ruling would have been upheld in de novo review
Dissent -- In dicta.
Rivera-Rivera v. US
Federal Circuit: WELLS FARGO & COMPANY v. US
Tax
Given the background of merger law against which the rules were set, historical tax overpayments and underpayments of companies composed of merged entities can be considered as a single amount, so long as no amounts are offset which were incurred by two companies which both had a distinct existence at the time of the payments.
(Reminder, as always, quick paraphrase of court on matter of public concern -- don't rely.)
WELLS FARGO & COMPANY v. US
Given the background of merger law against which the rules were set, historical tax overpayments and underpayments of companies composed of merged entities can be considered as a single amount, so long as no amounts are offset which were incurred by two companies which both had a distinct existence at the time of the payments.
(Reminder, as always, quick paraphrase of court on matter of public concern -- don't rely.)
WELLS FARGO & COMPANY v. US
Tenth Circuit: Nelson v. United States
Torts, FTCA
So long as the relevant acts of the landowner were purposeful, implicit invitation to use land for recreation can be imputed, even where the landowner subjectively believes the visitor to be a trespasser.
Willful or malicious conduct is best determined by the finder of fact, not on appeal.
Nelson v. United States
So long as the relevant acts of the landowner were purposeful, implicit invitation to use land for recreation can be imputed, even where the landowner subjectively believes the visitor to be a trespasser.
Willful or malicious conduct is best determined by the finder of fact, not on appeal.
Nelson v. United States
Ninth Circuit: USA V. NICHOLAS LINDSEY
Fraud
Where a lender requests specific information, the information provided is considered material to the lender's deliberations.
USA V. NICHOLAS LINDSEY
Where a lender requests specific information, the information provided is considered material to the lender's deliberations.
USA V. NICHOLAS LINDSEY
Eighth Circuit: United States v. Juan Johnson
Sentencing
Despite ministerial omissions, sentence not procedurally unreasonable, as court seemed to be aware of the relevant factors.
Sentence for violation of terms of supervised release not substantively unreasonable, as it was within the maximum for the original offense of conviction.
No error in not recusing.
United States v. Juan Johnson
Despite ministerial omissions, sentence not procedurally unreasonable, as court seemed to be aware of the relevant factors.
Sentence for violation of terms of supervised release not substantively unreasonable, as it was within the maximum for the original offense of conviction.
No error in not recusing.
United States v. Juan Johnson
Eighth Circuit: Carlos Rivas-Quilizapa v. Loretta E. Lynch
Immigration
Statements in interview establishing that the country was a dangerous place did not mandate that the IJ advise the petitioner of forms of relief.
Facts that would have been the basis of a claim were in evidence.
Carlos Rivas-Quilizapa v. Loretta E. Lynch
Eighth Circuit: Danny Connor v. CO 1 Box
Prisons
Dismissal of S1983 claim was improper, given claim's suggestion that officials thwarted attempts to file grievances. Leave to amend was properly denied.
Dismissal of S1983 claim was improper, given claim's suggestion that officials thwarted attempts to file grievances. Leave to amend was properly denied.
Danny Connor v. CO 1 Box
Eighth Circuit: Donnie Cooper v. General American Life Ins. Co
FRCP
Denial of statutory penalty & attorneys fees, as there was no asserted or actual breach of insurance policy terms.
Donnie Cooper v. General American Life Ins. Co.
Denial of statutory penalty & attorneys fees, as there was no asserted or actual breach of insurance policy terms.
Donnie Cooper v. General American Life Ins. Co.
Eighth Circuit: United States v. Michael Lindsey
Sentencing, ACCA
As the challenge to the existence of the predicates in the PSR was untimely and did not make a showing as to why an untimely challenge should be allowed, the convictions are considered to be undisputed facts.
State assault statute that proscribes acts that cause the fear of assault is a valid ACCA predicate.
United States v. Michael Lindsey
As the challenge to the existence of the predicates in the PSR was untimely and did not make a showing as to why an untimely challenge should be allowed, the convictions are considered to be undisputed facts.
State assault statute that proscribes acts that cause the fear of assault is a valid ACCA predicate.
United States v. Michael Lindsey
Eighth Circuit: United States v. Christopher Fisher
Sentencing
Per curiam - within-guidelines sentence for violations of supervised release not substantively unreasonable.
United States v. Christopher Fisher
Seventh Circuit: William Charles Construction v. Teamsters Local Union 627
Labor Law, Statute of Limitations, Arbitration
Clock did not begin to run on the time to challenge a decision of a committee authorized by a CBA until the movant received a copy of the notice of decision at the commencement of litigation.
.
Where a contract explicitly supersedes the CBA and establishes an exclusive remedy, party is not bound by CBA arbitration outcome.
Special appearance at arbitration to dispute its validity does not establish consent to arbitration.
William Charles Construction v. Teamsters Local Union 627
Seventh Circuit: USA v. Alexis Miranda-Sotolongo
Fourth Amendment, Sentencing
Check of license plate registration in a database is not a Fourth Amendment search.
Where the facts are ambiguous, the stop is lawful, so long as the possibility of illegal activity is sufficiently probable.
Supervised release conditions (including earning GED) remanded for clarification.
USA v. Alexis Miranda-Sotolongo
Check of license plate registration in a database is not a Fourth Amendment search.
Where the facts are ambiguous, the stop is lawful, so long as the possibility of illegal activity is sufficiently probable.
Supervised release conditions (including earning GED) remanded for clarification.
USA v. Alexis Miranda-Sotolongo
Seventh Circuit: Joseph Felton v. City of Chicago
S1983
S1983 excessive force suit states a claim if the only evidence to the contrary is in newspaper stories outside of the record.
Joseph Felton v. City of Chicago
Seventh Circuit: USA v. Saliou Mbaye
Fraud, Crim, Sentencing
Testimony of co-defts and lack of tax reporting established sufficient evidence for bank fraud.
Obstruction enhancement appropriate where deft sticks to alibi on the stand.
Within guidelines sentence substantively upheld.
USA v. Saliou Mbaye
Seventh Circuit: Jack Brown v. Kevin Smith
ADA
Question of essential function is for the fact-finder, even where local government holds the qualification to be a prerequisite for the position.
Time allocation was a fair method of determining essential nature of function.
No claim for lack of mitigation, as there was only one bus company in town, and plaintiff started his own business.
Jack Brown v Kevin Smith
Seventh Circuit: USA v. Juan Adame
Crim, Interstate commerce, FRE
Sufficient evidence on merits.
Use of building for rental establishes interstate commerce requirement of the arson statute.
Historical cell site data admissible under Daubert, since it was appropriately qualified. Ultimately harmless.
Agent testimony variations from deposition are not properly considered here, since the record was not amended to include the deposition version.
Fact that deft talked about fire on incidental audio associated with video allowed into jury room not overly prejudicial.
USA v. Juan Adame
Seventh Circuit: Noah Dietchweiler v. Steve Lucas
Due Process
Per curiam -- Due process satisfied for high school suspension where there was notice of the general allegation and a chance to be heard, despite lack of date-specific accusation of drug use.
Concurrence (2) -- troublingly unspecific notice.
Noah Dietchweiler v. Steve Lucas
Seventh Circuit: Arlene Simpson v. St. James Hospital
Discrimination, Title VII
Anecdotal evidence insufficient to establish valid comparators.
Arlene Simpson v. St. James Hospital
Seventh Circuit: Chun Sui Yuan v. Loretta E. Lynch
Immigration
Insufficient substantial evidence for agency's adverse findings on credibility.
Chun Sui Yuan v. Loretta E. Lynch
Insufficient substantial evidence for agency's adverse findings on credibility.
Chun Sui Yuan v. Loretta E. Lynch
Fifth Circuit: Mary Smith, et al v. Regional Transit Authority
ERISA, Agency
IRS standard is the appropriate test for determining, for the purposes of ERISA, if a private company is an agency or instrumentality of a government body, and by this standard, the private company that operates the transit system qualifies.
Deft not estopped from invoking governmental exemption, as the terms of the statute control.
Statute of limitations ran from first letter saying that some claims would not be funded.
PArty asserting discovery violation has to establish significance of the evidence sought.
Mary Smith, et al v. Regional Transit Authority
Fifth Circuit: Patricia Morris v. Town of Independence, et al
Discrimination
Given window clerk's part-time status and sui generis duties, there were no relevant comparators to test a claim of racial discrimination.
Patricia Morris v. Town of Independence, et al
Given window clerk's part-time status and sui generis duties, there were no relevant comparators to test a claim of racial discrimination.
Patricia Morris v. Town of Independence, et al
Fifth Circuit: Noris Rogers v. Pearland Indep School District
FRCP, Title VII,
Mere statement asserting claim is not enough to preserve disparate impact theory of claim.
Difference between comparator's criminal record and that of plaintiff establishes that they are not similarly situated.
Dissent: Comparator valid, since the relevant bit is that the convictions were not disclosed on the application form.
Noris Rogers v. Pearland Indep School District
Mere statement asserting claim is not enough to preserve disparate impact theory of claim.
Difference between comparator's criminal record and that of plaintiff establishes that they are not similarly situated.
Dissent: Comparator valid, since the relevant bit is that the convictions were not disclosed on the application form.
Noris Rogers v. Pearland Indep School District
Fourth Circuit: Sutasinee Thana v. Board of License Commissioners
Jurisdiction, First Amendment, FRCP
Federal action challenging state liquor control agency restriction on First Amendment grounds is not an imprudent challenge to state court authority via the federal system, since (1) the prudential abstention doctrine technically only applies to holdings of the state's top court; (2) the challenge is to the agency action, not to the court; (3) administrative actions are categorically removed from prudential abstention; (4) the state proceding was a deferential review on merits, and the federal case is seeking damages from violations of the First Amendment; and (5) plaintiff is still actively pursuing the state appeal.
Sutasinee Thana v. Board of License Commissioners
Fourth Circuit: Stella Andrews v. America’s Living Centers, LLC
FRCP, Fees
Award of costs for repetitive litigation can include fees where provided by statute at issue or equitably justified by the conduct of the plaintiff.
Circuit split flagged.
Where refiling is not in bad faith, wanton, or oppressive, award of fees is precluded. Here, Magistrate explicitly suggested refiling action.
Stella Andrews v. America’s Living Centers, LLC
Award of costs for repetitive litigation can include fees where provided by statute at issue or equitably justified by the conduct of the plaintiff.
Circuit split flagged.
Where refiling is not in bad faith, wanton, or oppressive, award of fees is precluded. Here, Magistrate explicitly suggested refiling action.
Stella Andrews v. America’s Living Centers, LLC
Fourth Circuit: John Vannoy v. Federal Reserve Bank
FMLA, ADA
Letter to employee regarding the medical leave did not comport with statute, since it didn't mention right to restoration of status.
Assertion of prejudice by plaintiff makes the lack of notice a genuine issue of material fact for the fact-finder at trial.
Plaintiff must make an evidentiary showing of pretext to present a genuine issue where deft has established a bona fide reason for the allegedly retaliatory act.
No equitable basis for ADA claims.
John Vannoy v. Federal Reserve Bank
Second Circuit: OneWest Bank, N.A. v. Robert W. Melina
FRCP
A national bank is considered to be a citizen of the state which its articles of association designate as the location of its main (head) office, regardless of the location of its principal place of business.
OneWest Bank, N.A. v. Robert W. Melina
Second Circuit: Weiland v. Lynch
Immigration
Per curiam -- given recent S.Ct. U.S. holding, interstate commerce element of the federal law is not considered when comparing a state statute to a federal statute to determine whether the state statute qualifies as an aggravated felony for Immigration purposes.
Weiland v. Lynch
First CIrcuit: US v. Bermudez-Melendez
Sentencing
Appeal waiver doesn't bar challenge where term in agreement was that sentence would be in accord with recommended sentence.
Where there is no guidelines range, statutory minimum is the range, and variances must be justified.
Court had no duty to explain variance prom plea deal level -- general description of facts sufficed to explain upward variance. Sufficient consideration of personal history.
Rhetorical flourishes are permissible during imposition of sentence.
Community-protection rhetoric in imposition of sentence is permissible when framed as an aspect of general deterrence.
Substantively reasonable.
US v. Bermudez-Melendez
First Circuit: Paret-Ruiz v. US
Forfeiture, Takings
The statutory remedy is the sole remedy for challenging a civil forfeiture, even when the underlying criminal case doesn't result in conviction. Waiver of that process waives FTCA remedy.
Court of Claim is sole venue for a Constitutional claim based in the taking -- amount in question here prevents court from having jurisdiction.
No clear error in denial of malicious prosecution clam, as evidence in record supports fact-finder's determination that one of the agents believed the deft to be guilty/
Paret-Ruiz v. US
The statutory remedy is the sole remedy for challenging a civil forfeiture, even when the underlying criminal case doesn't result in conviction. Waiver of that process waives FTCA remedy.
Court of Claim is sole venue for a Constitutional claim based in the taking -- amount in question here prevents court from having jurisdiction.
No clear error in denial of malicious prosecution clam, as evidence in record supports fact-finder's determination that one of the agents believed the deft to be guilty/
Paret-Ruiz v. US
DC Circuit: National Fed. of the Blind v. DOT
Administrative
Specific statutory right of action against agency displaces APA review -- the challenge should have been filed with the court of appeals.
Confusion over venue was not sufficient reasonable cause to waive the filing date requirement.
National Fed. of the Blind v. DOT
DC Circuit: Florent Bayala v. DHS
FOIA
Withholding of single document means FOIA claim is not moot - plaintiff's averment that the document is no longer being sought means that administrative exhaustion is moot, though.
As administrative exhaustion is not jurisdictional, remand to consider whether gov't litigation strategy comports with statute.
Florent Bayala v. DHS
DC Circuit: Sierra Club, et al v. FERC
Standing, Environment
Member living under a mile away gives associational standing to challenge increased constuction and output at natural gas port, given construction plans.
Environmental analysis was a substantial part of the export strategy, so not moot.
Intervening causation defeats challenge to export strategy by challenging port expansion.
Foreseeable and proximte effects on national markets required for cumulative analysis.
Shift in metrics not raised in agency proceedings
Sierra Club, et al v. FERC
Member living under a mile away gives associational standing to challenge increased constuction and output at natural gas port, given construction plans.
Environmental analysis was a substantial part of the export strategy, so not moot.
Intervening causation defeats challenge to export strategy by challenging port expansion.
Foreseeable and proximte effects on national markets required for cumulative analysis.
Shift in metrics not raised in agency proceedings
Sierra Club, et al v. FERC
DC Circuit: Sierra Club v. FERC
Standing, Environment
Organization meets causation and redressibility requirements for associational standing in challenge to an increase in natural gas production levels due to member who fishes in the area, given the presumptive increase in tanker traffic.
On merits, claim that increasing production at this port will lead to exports, causing domestic harms is flawed, because it relies on an intervening act - a decision to increase exports.
Agency hard look did not have to take a hard look at other projects occurring outside the jurisdiction which might have had a cumulative effect.
Sierra Club v. FERC
Organization meets causation and redressibility requirements for associational standing in challenge to an increase in natural gas production levels due to member who fishes in the area, given the presumptive increase in tanker traffic.
On merits, claim that increasing production at this port will lead to exports, causing domestic harms is flawed, because it relies on an intervening act - a decision to increase exports.
Agency hard look did not have to take a hard look at other projects occurring outside the jurisdiction which might have had a cumulative effect.
Sierra Club v. FERC
USA v. State of Washington
Treaties
Culvert construction, by diminishing the number of fish, violates fishing rights terms in treaties with tribes.
Abrogation of treaty rights requires legislation -- agency action doesn't constitute waiver.
State cannot compel FG to limit culvert construction, as it has no standing to assert treaty rights, and the action is barred by sovereign immunity.
Injunction not overbroad -- was a valid exercise of equitable discretion to order state to remedy rather than the FG through the state, since the state held title to the culverts.
USA v. State of Washington
Culvert construction, by diminishing the number of fish, violates fishing rights terms in treaties with tribes.
Abrogation of treaty rights requires legislation -- agency action doesn't constitute waiver.
State cannot compel FG to limit culvert construction, as it has no standing to assert treaty rights, and the action is barred by sovereign immunity.
Injunction not overbroad -- was a valid exercise of equitable discretion to order state to remedy rather than the FG through the state, since the state held title to the culverts.
USA v. State of Washington
Ninth Circuit: Lia Lingo v. City of Salem
Fourth Amendment, Exclusionary Rule, S 1983
Exclusionary rule does not apply in S1983 actions.
Scent of MJ gave probable cause for arrest, even if it came from a candle.
Lia Lingo v. City of Salem
Seventh Circuit: USA v. Leo Stoller
FRCrimP
Counsel's assurance of no custodial sentence was not sufficient basis to challenge voluntary nature of guilty plea.
No abuse of discretion in denial of competency hearing where deft's physician suggests that deft is exaggerating the symptoms of early dementia.
Insufficient coverage of required points during plea colloquy was harmless error.
USA v. Leo Stoller
Counsel's assurance of no custodial sentence was not sufficient basis to challenge voluntary nature of guilty plea.
No abuse of discretion in denial of competency hearing where deft's physician suggests that deft is exaggerating the symptoms of early dementia.
Insufficient coverage of required points during plea colloquy was harmless error.
USA v. Leo Stoller
Seventh Circuit: USA v. Jonathon Sainz
Sentencing
As restitution amount was substantively reasonable, it was not an abuse of discretion to omit certain elements of guidance in precedent.
Where the reason for the release conditions is plain, little or no explanation is needed. Modification to some terms to allow purchase of hamburgers, Internet access, etc.
USA v. Jonathon Sainz
Seventh Circuit: Panther Brands, LLC v. Indy Racing League, LLC
FRCP
The fact that National Guard administrative regulations are implicated is not a basis for federal jurisdiction.
As the delegate of the Guard exercised no independent rulemaking authority, no removal under Federal Officer.
Amendment of claim to remove US as party established that removal under federal scope of employment statute would be inappropriate.
Panther Brands, LLC v. Indy Racing League, LLC
The fact that National Guard administrative regulations are implicated is not a basis for federal jurisdiction.
As the delegate of the Guard exercised no independent rulemaking authority, no removal under Federal Officer.
Amendment of claim to remove US as party established that removal under federal scope of employment statute would be inappropriate.
Panther Brands, LLC v. Indy Racing League, LLC
Seventh Circuit: Kenneth Ogurek v. Jeffrey Gabor
Prisons
Claim of retaliation after letter to warden was a violation of First Amendment right to petition for redress of grievances.
Claim of innocence was sufficient showing to require production of videotape. Summary judgment in favor of the party who had earlier refused to produce the tape was error.
Kenneth Ogurek v. Jeffrey Gabor
Claim of retaliation after letter to warden was a violation of First Amendment right to petition for redress of grievances.
Claim of innocence was sufficient showing to require production of videotape. Summary judgment in favor of the party who had earlier refused to produce the tape was error.
Kenneth Ogurek v. Jeffrey Gabor
Seventh Circuit: James Baptist v. Ford Motor Company
Employment, FRCP
Genuine issue of material fact exists in state retaliatory-discharge claim where there is doubt as to the reason for the end of employment,
James Baptist v. Ford Motor Company
Genuine issue of material fact exists in state retaliatory-discharge claim where there is doubt as to the reason for the end of employment,
James Baptist v. Ford Motor Company
Seventh Circuit: USA v. Dante Graf
FRCrimP
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Fifth Circuit: State of Texas v. EEOC, et al
Standing, Discrimination, Administrative
State has Article III standing to challenge EEOC employment guidance, as it would have to either change its hiring policies or incur costs.
Since the agency, although it has no enforcement authority, can make policy changes that cause injuries sufficient for Article III harms, lack of enforcement power is not a per se bar to the action being sufficiently final under the APA.
Safe harbors and definitions for key terms speak to finality.
An agency can alter rights without issuing guidance that courts are legally bound to defer to.
Dissent. Nope, and not ripe, either.
State of Texas v. EEOC, et al
State has Article III standing to challenge EEOC employment guidance, as it would have to either change its hiring policies or incur costs.
Since the agency, although it has no enforcement authority, can make policy changes that cause injuries sufficient for Article III harms, lack of enforcement power is not a per se bar to the action being sufficiently final under the APA.
Safe harbors and definitions for key terms speak to finality.
An agency can alter rights without issuing guidance that courts are legally bound to defer to.
Dissent. Nope, and not ripe, either.
State of Texas v. EEOC, et al
Third Circuit: In Re: Nickleodeon Consumer Pr
Standing, ECPA, Preemption, Torts
Disclosure of online user data sufficiently particular & concrete for Article III standing.
One-party consent under the wiretap act & corresponding state statute has no implicit age restriction.
PCs are not protected computing facilities under SCA
.
State statute requires something beyond access to data - must establish use.
Search engine not covered by video privacy statute; that statute requires something more than an identifying number, since an observer must be able to associate a person with specific content. This holding cannot be reduced to a single sentence.
As claim derives from the expectation of privacy on the website, state intrusion on privacy tort not preempted by federal data statute.
Third party cookies on site don't present a cause of action under the tort, but standard tracking might, if duplicitous.
In Re: Nickleodeon Consumer Pr
First Circuit: Universal Truck & Equipment Co v. Caterpillar, Inc.
FRCP
Where a plaintiff fraudulently joins a deft to defeat diversity, the clock for deft to remove over the fraudulent joinder runs from first service. Here though, the plaintiff waived challenge to the lack of timely removal by not contesting the untimeliness of the theory of removal while contesting the removal itself. The post-deadline removal was in the jurisdiction of the court. Law of the case holding that the removal was ultimately timely prevails.
Summary approval of summary judgment.
Universal Truck & Equipment Co v. Caterpillar, Inc.
Where a plaintiff fraudulently joins a deft to defeat diversity, the clock for deft to remove over the fraudulent joinder runs from first service. Here though, the plaintiff waived challenge to the lack of timely removal by not contesting the untimeliness of the theory of removal while contesting the removal itself. The post-deadline removal was in the jurisdiction of the court. Law of the case holding that the removal was ultimately timely prevails.
Summary approval of summary judgment.
Universal Truck & Equipment Co v. Caterpillar, Inc.
First Circuit: Velez-Ramirez v. Commonwealth of Puerto Rico
ADA
Denial of reasonable accommodation is neither an actual nor a constructive discharge for purposes of the Act.
Automatically generated notification via company intranet sufficed for notice, despite actual notice that employee was not in the office.
Velez-Ramirez v. Commonwealth of Puerto Rico
Denial of reasonable accommodation is neither an actual nor a constructive discharge for purposes of the Act.
Automatically generated notification via company intranet sufficed for notice, despite actual notice that employee was not in the office.
Velez-Ramirez v. Commonwealth of Puerto Rico
First Circuit: US v. Hunter
Sentencing
No error in denying sentencing adjustment for acceptance of responsibility where a deft who later pleaded guilty took affirmative steps to cover up the crime and later made no showing to the contrary.
In assessing criminal history for purposes of sentencing, offenses without an intervening arrest are to be counted together only if imposed on the same day or contained in the same charging instrument.
Within guidelines sentence not substantively unreasonable.
US v. Hunter
Federal Circuit: BASCOM GLOBAL INTERNET v. AT&T MOBILITY LLC
Patent
(Which, we say again, we really don't know all that well. Rely on nothing on this website.)
Although each element of the process may be individually untenable, an ordered combination of claim limitations, considered holistically, might state a claim to be considered a single practical, particular application of the idea.
C in J: Bifurcation of eligibility/patentability is problematic.
BASCOM GLOBAL INTERNET v. AT&T MOBILITY LLC
Federal Circuit: OAKVILLE HILLS CELLAR, INC v. GEORGALLIS HOLDINGS, LLC
Trademark
Similarly spelled unfamiliar marks are sufficiently different.
OAKVILLE HILLS CELLAR, INC v. GEORGALLIS HOLDINGS, LLC
Eighth Circuit: United States v. Adrian Lomas
Crim, FRE, Sentencing
Admission of evidence that deft threw away a gun before the robbery not an abuse of discretion, as it established a knowledge of firearms.
Police evidence that they were in the area because of shots fired at a school was insufficiently prejudicial to justify a new trial.
Other hearsay, vouching challenges.
Sentencing.
United States v. Adrian Lomas
Eighth Circuit: Madonna Massey-Diez v. U of IA Community Medical etc
FMLA
Plaintiff's stated willingness to find ways to work while incapacitated meant that repeated tasks requested by employer during leave time were not contrary to the statute.
No discrimination in nonrenewal of contract, since comparator was in a rural area with different methodologies, and there was insufficient direct proof of discrimination.
Madonna Massey-Diez v. U of IA Community Medical etc
Eighth Circuit: Paul Ngugi v. Loretta E. Lynch
Immigration
Denial of withholding of removal under CAT upheld, as resistence to an armed gang is not a recognizabel social group; apparently contrary precedent since decision merely meant that the group didn't have to be oculary visible.
Paul Ngugi v. Loretta E. Lynch
Eighth Circuit: The Finley Hospital v. NLRB
Labor
Provision in CBA requiring a 3% raise on the anniversary of employment was not a bargained-for term that becomes part of the status quo after the end of the agreement; since each worker only received one raise, it could be considered a one-time benefit.
Dissent: One-time nature is an affirmative defense that should be considered when deciding if the union waived continuance of the term, and here, the union didn't waive the continuance of the term.
The Finley Hospital v. NLRB
Provision in CBA requiring a 3% raise on the anniversary of employment was not a bargained-for term that becomes part of the status quo after the end of the agreement; since each worker only received one raise, it could be considered a one-time benefit.
Dissent: One-time nature is an affirmative defense that should be considered when deciding if the union waived continuance of the term, and here, the union didn't waive the continuance of the term.
The Finley Hospital v. NLRB
Eighth Circuit: United States v. Alexander Faulkner
Fourth Amendment, ACCA, Confrontation Clause
Affidavit statement that tipster was reliable sufficed for credibility.
Placement of GPS on car in county outside the scope of the search warrant was a violation of state law, but not one that rises to the level of suppression.
Reputation of deft as drug dealer sufficed for warrant for home.
No confrontation clause in inability to question tipster, as there was no contact with case after the affidavit.
Possession with intent and conspiracy with intent correctly counted as two predicates under ACCA.
United States v. Alexander Faulkner
Eighth Circuit: United States v. Garron Gonzalez
FRE
Where the deft agrees to the admission of a recording at trial with the proviso that it be heard in full if requested by the jury during deliberations, no abuse of discretion in allowing the jury to hear it then, even if the tape had not been played in trial.
Substantial evidence.
United States v. Garron Gonzalez
Eigth Circuit: United States v. Christopher Strong, Sr.
FRE
Preliminary hearings sufficed for procedural reasonable balancing in weighing evidence of prior bad acts under 403/413. Severing counts unrelated to 413 was a sufficient remedy.
Exclusion of expert testimony to refute claim that deft pushed victim into path of car was proper, as the incident was primarily proffered to establish that she had been hit by the car.
Where two crimes are specifically barred from being simultaneously charged as they are similar enough to be considered "double counting," an enhancement based on one can be applied with relation to a third crime.
United States v. Christopher Strong, Sr.
Eighth Circuit: United States v. Yoirlan Rojas
FRE
Agent's testimony establishing elements of crime was harmless error, given that elements were established, and that the intent element could be inferred from the patterns of activity.
Fraudulent credit cards suppressed prior to trial were properly introduced to rebut deft's contention that he was unfamiliar with the distinction between credit cards and gift cards.
United States v. Yoirlan Rojas
Seventh Circuit: Venita Miller v. GreenLeaf Orthopedic Associate
FRE
No abuse of discretion in denial of impeachment on cross & rebuttal when impeachment has been accomplished in prior appearance on the stand.
No abuse of discretion in exclusion of diary as present sense impression, as there's no indication that it was a present sense impression.
No abuse of discretion in limited admission to rebut fabrication, given trial judge's understanding of the theories of the case.
Venita Miller v. GreenLeaf Orthopedic Associate
Seventh Circuit: Nationwide Advantage Mortgage v. GSF Mortgage Corporation
Contracts, Posner
Where one party to a contract initiates a relationship with a stranger to the contract based on the contractual relationship between to the two parties and unknowingly incurs costs for the counter-party in doing so, the counterparty does not have a claim for unjust enrichment.
Nationwide Advantage Mortgage v. GSF Mortgage Corporation
Seventh Circuit: Marcos Gray v. Marcus Hardy
Prisons
Although individual claims of infestation are insufficient to present a genuine issue of fact, the claim must be assessed holistically.
Harms of infestation present an issue for the finder of fact. (1984 quote.)
Knowledge of conditions can be imputed to incoming warden (caption not changed).
Marcos Gray v. Marcus Hardy
Although individual claims of infestation are insufficient to present a genuine issue of fact, the claim must be assessed holistically.
Harms of infestation present an issue for the finder of fact. (1984 quote.)
Knowledge of conditions can be imputed to incoming warden (caption not changed).
Marcos Gray v. Marcus Hardy
Seventh Circuit: Board of Trustees of the Autom v. Full Circle Group, Inc.
Posner, Successor liability
Where a sophisticated buyer acquires a company and there is a genuine issue of continuity of business, the hypothetical nature of a funded pension liability exit payment at the time of acquisition is not sufficient for summary judgment for lack of liability.
Alter ego liability requires fraud. Probably.
Board of Trustees of the Autom v. Full Circle Group, Inc.
Where a sophisticated buyer acquires a company and there is a genuine issue of continuity of business, the hypothetical nature of a funded pension liability exit payment at the time of acquisition is not sufficient for summary judgment for lack of liability.
Alter ego liability requires fraud. Probably.
Board of Trustees of the Autom v. Full Circle Group, Inc.
Seventh Circuit: John Otrompke v. Bradley Skolnik
Posner, Free Speech, Standing
Candidate for admission to the state Bar has no standing to preemptively challenge a an allegedly unconstitutional provision of the rules, since the Bar might decide not to unconstitutionally enforce it.
John Otrompke v. Bradley Skolnik
Seventh Circuit: Jaded Martinez v. Peter Cahue
Hague Act
Where a parent potentially has rights under state law, but the former spouse's removal of the child to a foreign country was lawful, the emigrating parent may invoke the foreign statute's mandate that the child be returned there after temporarily returning to the state.
Jaded Martinez v. Peter Cahue
Sixth Circuit: USA v. Ricky Brown
Fourth Amendment
Canine alert on a car and a general reputation of the suspect are insufficient basis for a warrant for the home.
Where the affidavit advances no relevant facts with respect to the residence, the good faith exception is precluded.
USA v. Ricky Brown
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
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