Seventh Circuit: Jeffrey D. Cochran v. Illinois State Toll Highway

S1983, Tolls, Due Process


Notice and hearing provisions for state highway toll system do not violate Due Process.

Rational basis for providing transponder owners an extra grace period for the payment of tolls.



Jeffrey D. Cochran v.   Illinois State Toll Highway

Seventh Circuit: Vera Putro v. Loretta E. Lynch

Immigration, Administrative


Error for IJ not to construe request for waiver as a claim that the requirement did not apply -- this shifted the burden to the petitioner, contrary to statute.


Vera Putro v.   Loretta E. Lynch

Seventh Circuit: Sheet Metal Workers Internatio v. Horning Investments, LLC

Labor, FCA


Union can bring a False Claims Act action relative to its members work -- primary jurisdiction of the Department of Labor does not displace the claim to the NLRB.

Payroll deductions for an insurance plan for which the worker was not yet eligible did not constitute a violation of the relevant Act.

Reliance on accountants dos not completely dispel mens rea.


Sheet Metal Workers Internatio v.   Horning Investments, LLC

Seventh Circuit: Alfonso Torres-Chavez v. USA

Habeas, Ineffective Assistance


Error for District Court to deny the Writ without an evidentiary hearing where petitioner reasonably clams that defense counsel urged the refusal of a plea deal, claiming the government's case was weak.


Alfonso Torres-Chavez v. USA

Sixth Circuit: Carrie Braun v. Ultimate Jetcharters

JMOL, FRCP, Discrimination


Given proximacy of protected conduct to the ending of employment and refutation of the nondiscriminatory bases for the action, court properly declined to issue JMOL.  Some question as to whether the grounds for the motion were properly preserved.

Proper to amend the judgment from Inc. to LLC corporate form, given representations by the corporation at trial and subsequent refusal to recognize the judgment as valid against the LLC.



Carrie Braun v. Ultimate Jetcharters

Sixth Circuit: Brandon Hefferan v. Ethicon Endo-Surgery

Conflict of Laws, Federal Jurisdiction, Subject Matter Jurisdiction, Torts


No abuse of discretion in court's refusal to hear claim under forum non conveniens, despite Germany's lack of adversarial process and lack of remedy for loss of consortium -- US courts would likely apply the law of the place of the delict  (Germany), and the medical manufacturer has consented to service there.

&c, &c...



Brandon Hefferan v. Ethicon Endo-Surgery

Fifth Circuit: Rainier DSC 1, L.L.C., et al v. Rainier Capital Mg

Arbitration, FRCP, securities


A stay of the litigation pending compulsory arbitration is at the discretion of the court, and where the legal issues are distinct from those being arbitrated, although both arise from the same transaction or series of transactions, the proceedings may continue, simultaneous with the arbitration.

No genuine issue of material fact as to whether a partnership was created by estoppel in securities
memorandum, given that there was no evidence that the relevant parties were aware of the statements.

Rainier DSC 1, L.L.C., et al v. Rainier Capital Mg

Fifth Circuit: USA v. Henry Walker

Drugs, Guns, FRCrimP, Crim


Given quantity of drugs, sufficient facts in evidence to support a guilty plea for possession of a firearm in furtherance of the drug crimes, despite lack of showing as to proximacy of guns to drugs or presence of ammunition.



USA v. Henry Walker

Fourth Circuit: Melanie Lawson v. Union County Clerk of Court

Free Speech, Employment, First Amendment, S1983


[Assuming S1983, since QI is discussed. c/a not specific.]

A deputy clerk need not have political allegiance to the boss -- it was clearly established law that a clerk who opposed the head clerk in an election should not have been placed on leave for the simple fact of having done so.

The head clerk is not shielded from suit under the 11th Amendment.

Insufficient facts in record for judgment on whether the speech was ultimately protected  under a non-categorical balancing test.  Insufficient record for ruling on summary judgment.

Long dissent: given burden to establish lack of retributive character to the employment action, there are sufficient facts for judgment in the record


Melanie Lawson v. Union County Clerk of Court

Fourth Circuit: Hunter Laboratories, ex rel. v. Commonwealth of Virginia

Federal Jurisdiction, Subject Matter Jurisdiction, FRCP


Although the injury alleged in a state false claims act suit implicated a question of federal law, federal resolution of the question is not necessary to provide the plaintiff complete relief, and the District Court is therefore without subject matter jurisdiction over the claim.


Hunter Laboratories, ex rel. v. Commonwealth of Virginia

Fourth Circuit: Gabriel Santos Alvarez v. Loretta Lynch

Statutory Construction, Immigration


Commonwealth's crime of Forgery is categorically relevant to decisions under the federal immigration law, since the federal standard is largely the same -- the document has to be transformed into something other than it was.


Gabriel Santos Alvarez v. Loretta Lynch

Second Circuit: United States v. Faux

Fourth Amendment, Miranda


Regulation of deft's movements during two hour interrogation held during a search of the personal residence did not amount to custody for purposes of determining the admissibility of statements made to police prior to arrest.


United States v. Faux

Second Circuit: Collymore v. Lynch

Statutory construction, Immigration


State statute is categorically a crime relevant to the immigration statute, since the prohibition on counterfeit controlled substances incorporates the proximate definition of controlled substances.


Collymore v. Lynch

Federal Circuit: Amgen v. Apotex

Corrigendum.



Amgen v. Apotex

Ninth Circuit: USA V. LAVELLE PHILLIPS

Sentencing, Guns


No procedural error in sentencing--sufficiently explained.

Active concealment required for misprision suffices to make constitutional a bar on possession of firearms after conviction for Misprision of Felony.


USA V. LAVELLE PHILLIPS

Ninth Circuit: JENNY FLORES V. LORETTA LYNCH

Immigration


Consent decree applies to both accompanied and unaccompanied minors, since the potential policy issues do not preclude reading the contract in its plain terms.

Decree does not create a duty to release parents, though.


JENNY FLORES V. LORETTA LYNCH

Eigth Circuit: United States v. Charles Ewert

Sentencing


Sentencing guidelines not unconstitutional.

State misdemeanor with penalty of more than a year in prison was properly considered a felony in sentencing.

Not substantively unreasonable.

United States  v.  Charles Ewert

Eighth Circuit: United States v. Santos Chavarria-Ortiz

Sentencing

Lack of contemporaneous objection to explanation of sentence at trial is forfeiture of claim, not waiver.

Within-guidelines sentence sufficiently explained, as the court characterized the sentence as reasonable and evinced some knowledge of the deft's circumstances.

Within-guidelines sentence not substantively unreasonable.



 United States  v.  Santos Chavarria-Ortiz

Eighth Circuit: Katie Moore v. Kansas City Public Schools

Federal Jurisdiction, IDEA,  FRCP


As school-based tort claim did not explicitly invoke IDEA,  removal and dismissal for lack of exhaustion was improper.

The claim's reference to similar terms did, however make the claim colorable, so fees are denied.



Katie Moore  v.  Kansas City Public Schools

Eighth Circuit: Jerome Emmanuel Davis v. Warden Kent Grandlienard

Habeas, AEDPA, Miranda


As the post-invocation statement admitted at the trial was facially exculpatatory and cumulative, state court did not err in denying Habeas.

Concur in J -- The statement was the only evidence placing the deft at the scene of the crime, but state court could have reasonably read it as harmless error.


Jerome Emmanuel Davis  v.  Warden Kent Grandlienard

Eighth Circuit: Critique Services, LLC v. LaToya L. Steward

Bankruptcy, Ethics


Pre-petition motion for equitable disgorgement is maintainable by petitioner so long as the trustee has abandoned the estate.

Insufficient basis to question impartiality of judge who previously headed US Trustee's office that engaged in adversarial process against petitioner LLC.

Court properly construed pro se petition; LLC properly a party; partial payment didn't moot the claim, etc.

Sanctions upheld.




Critique Services, LLC  v.  LaToya L. Steward

Seventh Circuit: Melvin Phillips v. Sheriff of Cook County

S1983, Prisons, Class Actions, FRCP


Prisoner claims asserting deliberate indifference under S1983 were improperly certified into a class, since although they shared an essential claim, the question of commonality implies a consideration of redressibility, and the relief sought in individual claims did not always support the remedy sought on behalf of the class as a whole.

Motion for relief from final judgment was inappropriate to challenge denial of certification -- an amended motion to certify the class remained available, appealable if a subsequent decision of the court materially alters the position of the class.



Melvin Phillips v.   Sheriff of Cook County

Seventh Circuit: Eileen Felix v. Wisconsin Department of Transportation

Discrimination, FMLA, Employment


Medical inquiry that considered the prospective behavior of the employee did not therefore have to establish a direct threat in order to justify the ending of employment.


Eileen Felix v.   Wisconsin Department of Transportation

Sixth Circuit: Avelino Cruz Martinez v. USA

En Banc, International, Extradition


Issuance of arrest warrant stops the clock for purposes of statutes of limitations referenced in extradition treaties.

Treaty reference to lapse of time does not incorporate the speedy trial guarantee.

Concur in J -- Speedy Trial analysis doesn't follow textually, but is correct given the purposes of treaty.

Dissent 1 - Treaty incorporates the guarantee -- plain meaning.

Dissent 2 - Translation inaccurate.

Avelino Cruz Martinez v. USA

Sixth Circuit: Yaqob Thomas v. Joseph Meko

Habeas, AEDPA, FRCP


A second state Habeas claim ultimately deemed to be barred procedurally for having been available to the petitioner at the filing of the first petition nonetheless tolled the AEDPA clock, as the second petition also asserted a claim for relief from judgement under the state rules.

 Yaqob Thomas v. Joseph Meko

Sixth Circuit: Altin Shuti v. Loretta Lynch

Immigration, Statutory Interpretation, Due Process


Immigration provision paralleling the ACCA residual clause is similarly void for vagueness.


Altin Shuti v. Loretta Lynch

Fifth Circuit: Linda Singletary v. Prudential Ins Co. of America

ERISA, Insurance, Choice of Law, Preemption


As the cause of action is a statutory one, courts should not construe a challenge to the denial of benefits into an equitable challenge to the adequacy of disclosure of limitations.

General concerns of public policy insufficient to invalidate choice of law provision in pendent cause of action.

ERISA preempts state statute, as it has nothing whatsoever to do with risk pooling.


Linda Singletary v. Prudential Ins Co. of America

Fifth Circuit: USA v. Thomas Malone, Jr.

En Banc


Denial of en banc, amended opinion.


USA v. Thomas Malone, Jr.

Fourth Circuit: Monica Guessous v. Fairview Property Investments

Discrimination, S1981, Statute of Limitations


As the proof of nondiscriminatory motive followed the protected activity, there's sufficient evidence to go to trial on pretext.

The distinction between inappropriate comments and comments indicating animus is one for the finder of fact.

Individually time-barred discriminatory acts can still serve as basis for a timely hostile environment claim.

Broad ethnic aspersions can also suggest specific racial animus.

Totality shoudl be considered in hostile environment claims.


Monica Guessous v. Fairview Property Investments

Fourth Circuit: Dewayne Cox v. Bradley Quinn

Prisons, S1983

Denial of qualified immunity upheld for responding to inmate report of robbery and assault by telling the alleged attackers that the inmate had reported the violence and receiving assurances that there would be no further trouble.


Dewayne Cox v. Bradley Quinn

Second Circuit: U.S. v. Rivernider

FRCrimP, Crim, Fraud, White Collar, Sentencing


No abuse of discretion in denial of permission to withdraw guilty plea, given signed admissions and extensive colloquy. 

Mens rea for the fraud was intentionally withholding information, not the desire to harm the victims.

Where claims of counsel conflict are conclusory, there is no right to new counsel for the filing of a motion to withdraw the guilty plea.

In sentencing, court appropriately considered all loans to be tainted by the fraudulent operation, despite the lack of explicit linkage of fraud to each of the loans.

Sentencing generally affirmed.

U.S. v. Rivernider

Second Circuit: United States v. Bouchard

Crim, White Collar, Fraud

Deceiving a lender which is not federally insured without the intent to deceive its federally insured parent does not violate the statute prohibiting lying to federally insured lenders.

A lender is not, for purposes of the statute, categorically a bank.

In a conviction for conspiracy, absent a special verdict indication of reliance on a particular theory, reversal of an overt act under one theory still allows the conviction to stand, given the other possible overt acts.

No abuse of discretion in denial of new trial for alleged perjury, given deft's successful cross of witness.

United States v. Bouchard

Second Circuit: Walsh v. NYCHA

Title VII, Discrimination

Evidence as to whether the hiring decision was discriminatory must be considered holistically.

Dissent -- Totality analysis problematic when asserting pretext.


Walsh v. NYCHA

Federal Circuit: HUTCHISON QUALITY FURNITURE v. US

Administrative

Although the suit challenged an order of the Commerce Department, the true nature of the claim was a protest of an action by Customs, and the claim therefore had to be timely raised under the statute governing the latter.


HUTCHISON QUALITY FURNITURE v. US

Ninth Circuit: DETRICE GARMON V. COUNTY OF LOS ANGELES

S1983, Fourth Amendment, Legal Ethics


Absolute prosecutorial immunity is available against claims by third-party witnesses.  Presumptively available for actions relating to preparation for trial.

Limited immunity, at most, for misstatements in statements supporting subpoena application.

Subordinates/supervisors protected to same degree.

Error in denial of leave to amend pro se S1983 municipal liability claim.

State immunity statute refers only to malicious prosecution.


DETRICE GARMON V. COUNTY OF LOS ANGELES

Ninth Circuit: ROSEMARY GARITY V. APWU NATIONAL LABOR ORG.

Employment, Labor, Res Judicata

An allegation of discrimination against a union can state a claim without alleging  breach of the duty of fair representation.


ROSEMARY GARITY V. APWU NATIONAL LABOR ORG.

Ninth Circuit: USA V. DAVID NOSAL

Computers, White Collar

Federal statute barring unauthorized access to computers refers to the authorization of the computer's owner, not the process of technical authorization.  Affirmative revovcation of access to the system precluded use of the system by any other means.

Trade secrets can be composed of publicly available information.

Error to award the corporate victim attorneys' fees, given brief actual duration of misconduct.

Dissent - It's a hacking law.


USA V. DAVID NOSAL

Eigth Circuit: United States v. The-Nimrod Sterling

Statutory Interpretation

Federal statute prohibiting impersonation of a diplomat is violated by an assertion to be a diplomatic representative of a fictional country.

United States  v.  The-Nimrod Sterling

Eighth Circuit: Symphony Diagnostic Services v. Kimberly Greenbaum

Contracts, Employment

Employee confidentiality agreements and agreements not to compete can be assigned to a successor without the consent of the employee unless the change materially changes the rights of the employee.


Symphony Diagnostic Services  v.  Kimberly Greenbaum

Eighth Circuit: United States v. Austin DeCoster

Cruel & Unusual, Due Process, Sentencing

Corporate liability is not vicarious liability, since there is direct control of the instrumentalities of the crime.  Custodial sentence therefore does not offend Due Process.

No clear error in findings of fact relating to sentencing,

Past offenses of the corporate entity appropriately considered during sentencing, given defts' control of the company.

Concur - Defts' negligence in running the business allows custodial sentence.

Dissent - No, it doesn't.

United States  v.  Austin DeCoster

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,

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

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.

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

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

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

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

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

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

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

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.

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

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

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.

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

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