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: PACIFIC MARITIME ASSN V. NLRB
Labor, FRCP
Prospect of imminent settlement does not mean that District Court has statutory, constitutional, or extraordinary jurisdiction over interlocutory appeal from NLRB proceeding, as the prospective intervenor might either intervene in the agency proceeding prior to final order or appeal the eventual settlement.
PACIFIC MARITIME ASSN V. NLRB
Ninth Circuit: TIFFANY AGUAYO V. S.M.R. JEWELL
Tribe Law, Administrative
Although the agency acted according to a broad vesting statute, the decision is reviewable under the APA, since it centers on the agency's acceptance of a certain constitution by the band, although specific review of the legitimacy of the constitution is time-barred.
As there was a rational basis for the agency's hands-off approach at the time of the constitution's adoption, the agency's decision not to intervene in a present membership dispute was not arbitrary or capricious.
No general trust obligation, &c, &c.
TIFFANY AGUAYO V. S.M.R. JEWELL
Eighth Circuit: United States v. Juan Leanos
Sentencing
Elements of "safety valve" provision allowing for a sentence below the mandatory minimum do not need to be found by the finder of fact.
United States v. Juan Leanos
Eighth Circuit: Domick Nelson v. Midland Credit Management, Inc
FDCPA, Bankruptcy, Circuit Split
FDCPA does not allow for a claim against a time-barred debt filed as a claim against a bankruptcy estate.
Circuit split flagged.
Domick Nelson v. Midland Credit Management, Inc
Eighth Circuit: United States v. Cody James Horse Looking
Sentencing, Predicates
Under modified categorical analysis, a state domestic violence statute is not a predicate crime of violence, as court might have convicted under the provision prohibiting making of a credible threat. Although the sentencing colloquy established that physical violence occurred, the violence might have been in furtherance of the credible threat.
United States v. Cody James Horse Looking
Eighth Circuit: Gerald E. Carlson v. Midwest Professional Planners
Torts
Claim against an insurance agent for not listing co-owners of policy doesn't state a claim, as the primary owner of the policy was the only one who could legally cure the omission.
Gerald E. Carlson v. Midwest Professional Planners
Eighth Circuit: United States v. Donald Montgomery
Fourth Amendment
Sleepers inside unmarked van with copper pipes inside provided sufficient reasonable suspicion for search of the van, given that the area is often a place for trafficking in illegal scrap metal.
United States v. Donald Montgomery
Eighth Circuit: United States v. Belle Brave Bull
Sentencing
No plain error in under-explained upward departure from guidelines, as it was outside the heartland of the usual type of offense, and there were other factors that would have justified the increase.
United States v. Belle Brave Bull
Eighth Circuit: United States v. James Powers
Sentencing
No abuse of discretion in counting attempt to escape from police as both an element of the offense of Obstruction and a sentencing enhancement, as it was present to an exceptional degree.
United States v. James Powers
Eighth Circuit: Dale Helmig v. Carl Fowler
Brady, S1983
Sheriff's lack of disclosure of multiple calls from victim discussing safety concerns in the context of a divorce didn't rise to the level of intention and bad faith required for civil damages under S1983.
Dale Helmig v. Carl Fowler
Seventh Circuit: USA v. Joseph Banks
FRCrimP, Sixth Amendment, Sentencing
No error in allowing pro se deft to continue representation after remaining silent at critical junctures, since the silence was a knowing and voluntary attempt to maintain a sovereign citizen defense.
No error in altering sentence during imposition to match announced within-guidelines total.
USA v. Joseph Banks
Seventh Circuit: Ira Holtzman v. Gregory Turza
Class Actions, Fees
In a statutory class action where individual recovery is specifically delineated in the statute, class counsel cannot be paid based on the value of the common fund.
Order to pay full statutory amount to remaining claimants once the fees have been satisfied was error.
Court is not obligated to make a cy pres distribution of remaining funds -- can return balance to deft.
Ira Holtzman v. Gregory Turza
Fifth Circuit: Mark Gomez v. Ericsson, Inc.
ERISA, Employment
Given substantial administrative operation supporting it, the severance plan is governed by the terms of ERISA.
As there were ambiguities in the Plan, no abuse of discretion in denial of benefits under release of claim provision where former employee returned computer without some files.
Mark Gomez v. Ericsson, Inc.
Fourth Circuit: Randall Brickey v. Robb Hall
S1983, Free Speech
Given paramilitary character of police force, there was no clearly established law to the contrary when police officer was fired for suggesting financial malfeasance at the department.
Randall Brickey v. Robb Hall
Fourth Circuit: Ohio Valley Environmental Coalition v. United States Army Corps
Environmental, Administrative
Where statute requires that the Corps of Engineers conduct an environmental review based on the mining project's effects upon US waters, the review is properly limited to the effects on US waters, and need not be expanded to consider other public health questions.
Ohio Valley Environmental Coalition v. United States Army Corps
Fourth Circuit: Michelle Williams v. Lendmark Financial Services
Statutory Construction
Under state law, lender's policy of first applying payments to late fees is permissible, as the terms simply require that a fix sum be periodically paid, and provide for an extension of the loan where the balance isn't retired.
Lender could not, however, consider a payment incomplete where it didn't cover both the principal due and additional fees.
Close of business was fair cutoff, as terms required payment a set number of days from the initial cutoff time.
Michelle Williams v. Lendmark Financial Services
Third Circuit: Krzyszof Koszelnik v. Secretary
Immigration, Administrative, Statute of Limitations
When deportation proceedings against alien were initiated, the agency lost jurisdiction over the subsequent naturalization proceedings, which were void from the beginning.
Statute of limitations shields the present status of the alien, but does not create an entitlement to the next step to citizenship.
Given past misrepresentations, no equitable claim against harshness of citizenship bar.
Krzyszof Koszelnik v. Secretary
Third Circuit: Bassam Saliba v. Attorney General United States
Immigration
External duress cannot make material misstatements in initial residency application less than willful.
Alien was not lawfully admitted where the antecedent status was based on a material misstatement.
Subsequent elevation in status did not waive the government's enforcement right against the initial misstatement.
Court has no idea what might happen in future.
Bassam Saliba v. Attorney General United States
Second Circuit: Alphonse Hotel Corporation v. Tran
FRCP, Corporations, Contracts, Choice of Law, Certified Question
No abuse of discretion in denial of discovery that was seeking to determine valuation of the property at issue where the lease was peppercorn.
Under state law, lease to family member is not accorded deference as business judgment where the corporation has been run for the benefit of the family.
Sweat equity consideration was prior to the lease,and therefore could not be consideration for the deal.
Under second state's law, which binds by consent of parties due to primary state law's choice of law rules, a contract void for lack of consideration may nonetheless under the parol evidence rule preclude the court from recognizing an earlier agreement between the parties.
Question is one of first impression in the second state, but not important enough to certify, given the certification rules of the second state.
Alphonse Hotel Corporation v. Tran
First Circuit: US v. Alvarez-Nunez
Sentencing
Lyrics and music videos are protected expression under the First Amendment, and absent extrinsic evidence linking them to the criminal conduct, they cannot be considered in sentencing.
Grease can be gotten from geese.
US v. Alvarez-Nunez
First Circuit: Aponte-Davila v. Municipality of Caguas
FRCP
When a litigant has relocated for medical treatment, domicile is a context-specific inquiry, one that is not predetermined by the litigant's having indicated the new place of residence on medical and employment forms.
Aponte-Davila v. Municipality of Caguas
First Circuit: US v. Rodriguez-Melendez
Sentencing
Misleading PSR language made above-guidelines sentence proceedurally unreasonable and plain error.
US v. Rodriguez-Melendez
DC Circuit: USA v. TDC Management Corporation
Corporations, FDCPA
Husband and wife's holding of stock in an S-corporation as tenants by the entirety doesn't support an FDCPA action against the assets of the corporation.
Remanded to consider whether to pierce the veil.
USA v. TDC Management Corporation
DC Circuit: Trent Coburn v. Patrick J. Murphy
Administrative
Department's physician had control of the medical review, and the department's ruling that the physician was permitted to end the administrative proceeding was therefore not arbitrary or capricious.
Trent Coburn v. Patrick J. Murphy
DC Circuit: USA v. Gerry Burnett
Fourth Amendment, FRE, Sentencing, Conspiracy
Probable cause for search and stop of car, given GPS data and ongoing investigation, despite the fact that the trip was atypical.
Accidentally destroyed evidence was in no way exculpatory.
Given association of the defts outside the house, reliance on GPS data from inside of a house to establish probable cause was not constitutional error.
Admission of prior bad acts harmless.
Calculation of drug amounts included some from before one deft joined the conspiracy -- remanded for resentencing.
USA v. Gerry Burnett
DC Circuit: USA v. Henry Williams
FRE, Fourth Amendment, FRCrimP, Sentencing
Undisclosed investigations didn't make wiretap/ wiretap application unlawful.
Lay expert testimony by agent constituted sufficient error for reversal.
Sufficient evidence for retrial.
Guilty plea not unconstitutionally compelled due to requirement that a codeft plead guilty.
Acquited conduct properly considered in sentencing.
USA v. Henry Williams
Ninth Circuit: ADAM BROOKS V. CLARK COUNTY
Judicial Immunity, S1983, Circuit Split
Although a court officer's shove was not specifically ordered by the judge and therefore did not enjoy judicial immunity, it did not violate any clearly established constitutional right, and the bailiff therefore enjoys qualified immunity.
Circuit split flagged on the first question.
ADAM BROOKS V. CLARK COUNTY
Ninth Circuit: LONE STAR SECURITY AND VIDEO, V. CITY OF LOS ANGELES
First Amendment, Free Speech
Restrictions on mobile advertising are content neutral and sufficiently narrowly tailored.
Concur: The distinction between signs and decals is philosophically untenable.
LONE STAR SECURITY AND VIDEO, V. CITY OF LOS ANGELES
Ninth Circuit: ROBERTO SILVA-PEREIRA V. LORETTA E. LYNCH
Immigration
Sufficient evidence for adverse credibility determination, given omissions from petition.
Foreign indictment corroborated by eyewitness testimony is sufficient evidence for finding of likelihood of prior bad acts.
As no tribunal has yet ruled on disposition of final immigration question, law of the case does not bind.
ROBERTO SILVA-PEREIRA V. LORETTA E. LYNCH
Eighth Circuit: United States v. Demetrius Colbert
Crim, Fourth Amendment, FRE, Conspiracy, Sentencing
Sufficient showing of alternative means before wiretap.
Connection to the person sufficed for search warrant for house.
No abuse of discretion in refusing to allow evidence of circumstances in a similar police search.
Conspiracy counts appropriately joined to firearms counts, as they arose from same conspiracy.
Sufficient evidence.
Life sentence procedurally & substantively reasonable.
United States v. Demetrius Colbert
Eighth Circuit: Debra Jenner v. Kay Nikolas
S1983, Due Process
As the state statutory right to a parole hearing isn't protected by a liberty interest under the Federal Constitution, allegations of unfair process cannot be raised under S1983.
Debra Jenner v. Kay Nikolas
Eighth Circuit: Felicia Zeah v. Loretta E. Lynch
Immigration, Administrative
Agency did not require an entirely novel theory of harm in deciding whether to allow a late petition, and a continued threat of a severe harm that might have been asserted by a timely petition did not save the late petition.
Felicia Zeah v. Loretta E. Lynch
Eighth Circuit: United States v. Colin Boone
FRE
No abuse of discretion in admission of prior misconduct by police officer -- however distant in time, it was relevant to determining the required intent in the present action.
United States v. Colin Boone
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
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
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.
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,
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
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