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.
Eighth Circuit: United States v. Roger Clayton
Sentencing
No procedural error in minimal consideration of deft's background, within-guidelines sentence not substantively unreasonable given the conduct during the crime.
United States v. Roger Clayton
Seventh Circuit: Jana Caudill v. Keller Williams Realty,
Contracts, Posner
Liquidated damages for violation of confidentiality agreement related to court settlement denied where the sum was not an approximation of the actual loss sustained.
Injunction denied.
Jana Caudill v. Keller Williams Realty,
Liquidated damages for violation of confidentiality agreement related to court settlement denied where the sum was not an approximation of the actual loss sustained.
Injunction denied.
Jana Caudill v. Keller Williams Realty,
Sixth Circuit: Tri County Wholesale v. Labatt USA Operating Co.
Statutory Interpretation, Takings
A transfer of ownership involving the corporate parent creates a new manufacturing entity which is then able under the state licensing scheme to terminate existing franchise agreements.
No Takings Clause claim, as the licensing scheme is inherently anticompetitive.
Award for economic harm for loss of brand included costs for seeking another supplier -- recovery on both would be double recovery.
Misc. factual findings affirmed.
Tri County Wholesale v. Labatt USA Operating Co.
Fifth Circuit: USA v. Jose Gomez-Valle
Sentencing
Sufficient factual findings in record to deny mitigation for being a minor participant.
USA v. Jose Gomez-Valle
Fourth Circuit: US v. Gaston Saunders
Administrative, Federalism, Vagueness
Law banning fishing except that regulated by Congressionally-instituted multistate compacts does not extend similar exceptions for fishing under plans drafted by multistate commissions not referenced by the Act.
Law is not vague for complexity.
US v. Gaston Saunders
Law banning fishing except that regulated by Congressionally-instituted multistate compacts does not extend similar exceptions for fishing under plans drafted by multistate commissions not referenced by the Act.
Law is not vague for complexity.
US v. Gaston Saunders
Second Circuit: Laroe Estates, Inc. v. Town of Chester
FRCP
So long as the relief sought and theory of the case are identical, a propsective intervenor of right in a pending action need not demonstrate separate Article III standing. It is sufficient that they have a direct, substantial, and legally protectable interest relating to the existing case/controversy.
Circuit split flagged.
Laroe Estates, Inc. v. Town of Chester
Fifth Anniversary
On the evening of July 5, 2011, from the Starbucks in Worldwide Plaza in midtown, the predecessor site to this one posted its first daily rundown:
http://manhattanbarrister.blogspot.com/2011_07_05_archive.html
It's been an off-and-on endeavor, and at times, it was a bit short-form, but it's proved to be a very interesting hobby over the years. Sometime in 2013, the site passed 2,500 opinion summaries, and there have probably been another thousand or so since. All freely linked, no ads, and most summaries same-day. No marketing, but eventually the long tail of organic search returns resulted in a decent audience.
Scrambling from Starbucks to Starbucks to post the last few decisions of the night.... Cadging a library terminal when the equipment gave out... Interesting times. Not really a labor of love. More like a labor of respect. And excellent batting practice.
Onward.
-CB
Federal Circuit: Amgen Inc. v. Apotex Inc.
Patent, Injunctions
Statutory injunction for biosimilar product marketing conflict upheld.
Amgen Inc. v. Apotex Inc.
DC Circuit: Competitive Enterprise Institute v. Office of Science and Technology Policy
FOIA
Where the documents have not been ceded to the individual, documents on external, non-government websites are within the scope of FOIA.
Concur: Presumption of government control over agency records.
Competitive Enterprise Institute v. Office of Science and Technology Policy
DC Circuit: The Tennis Channel, Inc. v. FCC
Administrative
Agency commission holding that ALJ finding was not supported by substantial evidence and declining to remand for development of the record should be understood to reflect a plenary assessment of the record and a decision on the merits to the contrary where the decision not to reopen is within the agency's discretion.
The Tennis Channel, Inc. v. FCC
DC Circuit: Public Employees v. Abigail Hopper
Environment, Administrative
Agency took an insufficient hard look in preparation of environmental impact statement, given geologist's testimony.
Deference to Coast Guard on the scope of navigation safety terms statute requires to be included in the contract.
Agency's refusal to consider economic impact statement offered by environmental interest group was arbitrary/capricious.
Public Employees v. Abigail Hopper
DC Circuit: Rosebud Mining Company v. MSHA
Administrative
Given mining safety law's requirement that safety measures be redundant, agency adjudication's requirement of multiple safety factors was not arbitrary/capricious and was supported by substantial evidence.
Rosebud Mining Company v. MSHA
Eighth Circuit: United States v. Tonney Valure
Sentencing
No abuse of discretion in court's order that within-guidelines sentences for simultaneous violation of multiple supervised releases be served consecutively.
United States v. Tonney Valure
Eigth Circuit: United States of America v. U.S. Bank National Association
Property
Under state law, a substantial delay in recordation of a successor deed can preclude a finding that a lien interest perfected against the earlier deed attaches with no loss of priority to the second instrument.
Dissent - state would apply equitable principles.
United States of America v. U.S. Bank National Association
Eighth Circuit: James Coterel v. Dorel Juvenile Group, Inc.
FRCP
In products-liability action, general verdict form prevents plaintiffs from establishing that improperly admitted evidence was dispositive.
James Coterel v. Dorel Juvenile Group, Inc.
In products-liability action, general verdict form prevents plaintiffs from establishing that improperly admitted evidence was dispositive.
James Coterel v. Dorel Juvenile Group, Inc.
Eighth Circuit: United States v. Torris Boyd
Sentencing
No error in denial of crack/cocaine resentencing because of rules infractions and the nature of the initial offenses.
United States v. Torris Boyd
Eighth Circuit: Stuart Day v. Celadon Trucking Services, Inc
Employment, Class Actions
Sale of business under an asset pruchase agreement does not bar a finding that the business is a going concern for purposes of the WARN Act.
Sale created a presumption of continued employment.
Movant on motion to de-certify class carried burden of establishing good reason.
Predominance presumptive when the penalty is statutory.
Burden-shifting in damages phase permissible, given purposes of the Act.
Stuart Day v. Celadon Trucking Services, Inc
Eighth Circuit: United States v. Warnell Reid
Sentencing
No error in allowing government to add evidence to the record on remand, so long as it was available at the initial sentencing.
No error in court's, for purposes of sentencing, accepting PSR determination that rifle could hold a large magazine, so long as the determination doesn't establish an element of the offense itself.
Sentence received while in prison counted for a freestanding sentence for purposes of subsequent sentence.
Sufficient evidence for enhancements, substantively reasonable.
United States v. Warnell Reid
Eighth Circuit: United States v. Walter Combs
Crim, Entrapment
Presenting opportunity to rob a drug operation was insufficient entrapment under Due Process, no entrapment instruction justified for the narcotics crime, given eagerness to do the job.
United States v. Walter Combs
Third Circuit: Jane Doe v. Alan Hesketh
FRCP, Statutory Construction, Estoppel
Dismissal of claim without prejudice for lack of personal jurisdiction is appealable under the general appeals statute is appropriate where the plaintiff proceeds to file in other jurisdictions rather than amend the claim.
Statute allows recovery against violation of a predicate statute, even where full recovery has been made on a claim based in the predicate statute.
Victim is not in sufficient privity with government to estop a subsequent claim for damages based on an earlier restitution proceeding.
Jane Doe v. Alan Hesketh
First Circuit: Pacific Indemnity Company v. Deming
Contracts, Property (a bit)
Under state law, a condo rule requiring purchase of insurance with a waiver of subrogation does not effectuate the waiver where the purchased policy merely permits an ex ante waiver of subrogation against a specific claim.
Pacific Indemnity Company v. Deming
First Circuit: Hoover, III v. Harrington
Bankruptcy
Sufficient notice of conversion proceedings where the proceedings are adjourned, and the court informs the participants that the matter is turning to conversion.
Speculative testimony as to future income does not bar a finding of no reasonable likelihood of rehabilitation.
Where little or nothing can be raised from the liquidation of the estate, the claim must be riaed in the proceeding -- otherwise waived.
Hoover, III v. Harrington
First Circuit: Young v. Wells Fargo Bank, N.A.
Contracts
Breach claim not properly raised, since appeal doesn't contest waiver of damages.
On consumer protection statute claim, demand letter sent to one lender cannot be applied to both, and the claims raised by the letter do not rise above negligence. Economic injury not established.
Young v. Wells Fargo Bank, N.A.
First Circuit: Thomas v. Lynch
Immigration, Administrative, Statutory Construction
Statute requires that the minor have taken an affirmative act to begin lawful residency after the naturalization of the parent.
Thomas v. Lynch
Statute requires that the minor have taken an affirmative act to begin lawful residency after the naturalization of the parent.
Thomas v. Lynch
Seventh Circuit: USA v. Leslie J. Woods
Crim. Jurisdiction
A court retains jurisdiction over deft when deft is charged as minor but attains majority during the pendency of the proceedings.
No abuse of discretion in court's decision to try deft as an adult for crime committed five years ago, given continued misbehavior and lack of state rehabilitation facilities.
USA v. Leslie J. Woods
A court retains jurisdiction over deft when deft is charged as minor but attains majority during the pendency of the proceedings.
No abuse of discretion in court's decision to try deft as an adult for crime committed five years ago, given continued misbehavior and lack of state rehabilitation facilities.
USA v. Leslie J. Woods
Seventh Circuit: Katrell Morris v. USA
Habeas, AEDPA, Attempt, ACCA
Habeas grant for challenge to ACCA residual clause predicate. Although an unpublished decision of the Circuit has held the crime to be a valid predicate under another clause, it insufficiently considered the state's law of attempt.
Concur: Attempt as predicate should only require the attempt at an act that would itself satisfy all the elements.
Katrell Morris v. USA
Habeas grant for challenge to ACCA residual clause predicate. Although an unpublished decision of the Circuit has held the crime to be a valid predicate under another clause, it insufficiently considered the state's law of attempt.
Concur: Attempt as predicate should only require the attempt at an act that would itself satisfy all the elements.
Katrell Morris v. USA
Seventh Circuit: James Todd v. Kess Roberson
Habeas, Ineffective Assistance
Denial of ineffective assistance Habeas based on claim that deft's counsel had guaranteed a ten year sentence, as the deft stated in court that no deal had been made, and there was no showing that deft would have otherwise gone to trial.
James Todd v. Kess Roberson
Seventh Circuit: Richard Bell v. Cameron Taylor
FRCP, Res Judicata, Copyright
Where complaint states that deft used one of plaintiff's photos on a website, but in fact deft used another, deft is not required in the response to point out the error.
No error in denial of leave to amend.
Res judicata correctly barred the subsequent suit.
Copyright holder's stated price of photo insufficient to prove damages.
No error in denial of discovery, declaratory judgment.
Richard Bell v. Cameron Taylor
Fifth Circuit: Thomas Howell v. Town of Ball, et al
FRCP, S1983, First Amendment, FCA
Appeals court does not have jurisdiction over cross-appeal relating to a non-dismissed claim when hearing an interlocutory appeal on the dismissed claims.
Local police officer's cooperation with federal anti-corruption probe was outside of normal duties, so the firing was potentially in response to protected conduct, but the right was not clearly established at the time.
Non-final decisionmakers not liable for retaliation claim under S1983, but municipal liability claim here presents a genuine issue of material fact.
Amendment to FCA removing "employee" language was to allow contractors to file claims, not non-employees generally.
Thomas Howell v. Town of Ball, et al
Fifth Circuit: Richard Houten, Jr., et al v. City of Fort Worth
Statutory Construction
Reduction of pension benefits expected but as yet unearned does not violate provision in state constitution prohibiting reduction of pension benefits.
Opinion to the contrary by the state AG would be accorded only persuasive value by the state's highest court.
Richard Houten, Jr., et al v. City of Fort Worth
Second Circuit: United States v. Garavito-Garcia
International Law, Crim, Conspiracy, Double Jeopardy
Treaty language requiring release within thirty days if not extradited did not create a private right for the deft - the right belongs to the state party. Comity requires that US courts recognize the decision by the state party declining to uphold the claim.
Sufficient evidence, given taped conversations.
Court's supplemental "mere presence" instruction was a correct statement of the law of conspiracy.
Indictment not duplicitous, as one count requires providing assistance to a group that commits a terrorist act, and another requires providing assistance to a group listed as a terrorist organization.
United States v. Garavito-Garcia
DC Circuit: Central United Life Insurance v. Sylvia Burwell
ACA, Administrative
Agency rulemaking was an illicit amendment of the terms of the Act itself.
Central United Life Insurance v. Sylvia Burwell
DC Circuit: State of West Virginia v. HHS
Standing, ACA
State doesn't suffer cognizable injury-in-fact when federal government declines to exercise a statutorily-compelled primary function, leaving the state to decide whether it should exercise its secondary function.
State of West Virginia v. HHS
DC Circuit: Mohamed Al-Saffy v. Thomas Vilsack
Title VII, Employment, Administrative
ALJ dismissal of hearing request was not final agency action that started the Title VII clock.
Subsequent similar letter did not start the clock as it omitted the statutorily required notice of the right to appeal.
Genuine issue of material fact as to agency employment given responsibilities and reporting relationships.
Mohamed Al-Saffy v. Thomas Vilsack
ALJ dismissal of hearing request was not final agency action that started the Title VII clock.
Subsequent similar letter did not start the clock as it omitted the statutorily required notice of the right to appeal.
Genuine issue of material fact as to agency employment given responsibilities and reporting relationships.
Mohamed Al-Saffy v. Thomas Vilsack
DC Circuit: Oklahoma Gas and Electric Co. v. FERC
Administrative
Presumption of rationality in judicial review of contracts does not apply to rights of first refusal, given their anticompetitive nature.
Oklahoma Gas and Electric Co. v. FERC
Presumption of rationality in judicial review of contracts does not apply to rights of first refusal, given their anticompetitive nature.
Oklahoma Gas and Electric Co. v. FERC
DC Circuit: Akiachak Native Community v. DOI
FRCP, Mootness
Case is moot, as the regulation has been rescinded.
Dissent -- Parties are still in conflict.
Akiachak Native Community v. DOI
DC Circuit: United Airlines, Inc. v. FERC
Administrative
FERC ratemaking that substituted a second time period was arbitrary and capricious in that insufficient explanation was offered for the selection of the second period.
No error in agency's declining to index the rates across a period of time, as it would have resulted in an unreasonable benefit, and the purpose of the indexing regulation is equitable.
Corporations and partnerships must be evenly treated in deciding tax offsets.
United Airlines, Inc. v. FERC
Ninth Circuit: MICHAEL CUERO V. MATTHEW CATE
Habeas
Given contract law, state violates Due Process by adding a predicate prior after the plea had been accepted by the court and a misdemeanor had been dropped pursuant to the terms of the deal.
Dissent: Inability to enforce plea deal is not constitutional error.
MICHAEL CUERO V. MATTHEW CATE
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
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