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: Compart's Boar Store, Inc. v. United States
FTCA
Scientific testing with ambiguous results that required expert interpretation qualifies for the discretionary function exception to federal liability under the FTCA.
Compart's Boar Store, Inc. v. United States
Eighth Circuit: Blake Marine Group v. CarVal Investors LLC
Choice of Law, Admiralty, FRCP
Although application of the (Erie) forum's law would allow greater recovery in the forum state, as the forum state borrows the statute of limitations from the state providing the relevant substantive law, the forum state's choice of law rules minimize the importance of recoveries other than those involved in the case, and the law of the plaintiff's state should therefore control.
Insufficient basis for claim of laches under Admiralty jurisdiction, as there's no showing of navigable waters.
Claims of fraud pleaded with insufficient particularity to justify an equitable toll to the statute of limitations.
Blake Marine Group v. CarVal Investors LLC
Eighth Circuit: United States v. Donald Harvey
F.R.Crim.P, Double Jeopardy, Sentencing
No abuse of discretion in denial of permission to withdraw nolo contendre plea where deft subsequently professes innocence, claims to have been unaware of the subpoena power, and claims that evidence was manufactured.
Simultaneously charging receipt and possession under separate statutes was still Double Jeopardy.
Concurrence: No resentencing necessary where the sentences were set to run concurrently.
United States v. Donald Harvey
Seventh Circuit: Gilbert Knowles v. Randy Pfister
Discrimination, Religion, Injunctions
Given statutory rights to religious expression, prison inmate demonstrates the possibility of irreparable harm and likely success on the merits in claim seeking to wear a Wiccan pendant.
Gilbert Knowles v. Randy Pfister
Fifth Circuit: Clarence Brown v. Allison Taylor, et al
Prisons, FRCP
Prisoner mailbox rule is potentially applicable in cases of civil confinement.
Sua sponte dismissal of pro se claim without notice or opportunity to amend was error.
Clarence Brown v. Allison Taylor, et al
Fifith Circuit: USA v. Tomas Puga-Yanez
Statutory Construction
State statute is categorically a crime of violence, as harm to the victim is not an element of the generic crime.
USA v. Tomas Puga-Yanez
Fourth Circuit: Keith Clark v. Larry Cartledge
Fed.R.App.P, FRCP
Request for additional time to file an application for a certificate of appeal may be construed as sufficient notice of appeal.
Dissent: No, and the rule is jurisdictional.
Keith Clark v. Larry Cartledge
Second Circuit: In re Motors Liquidation Co.
Bankruptcy, Jurisdiction, Procedural Due Process, Mootness
As direct and indirect post-sale claims against the successor corporation arose within the bankruptcy process and related to the injunctions issued, the bankruptcy court properly exercised jurisdiction over the claims.
Prepetition tort claims against a successor corporation state a claim in bankruptcy where the both the contingent flaw and the relationship from which the duty arose were present prior to the order of sale.
No clear error in court's holding that Procedural Due Process requires--prior to approval of sale--direct purchaser notice of flaws that manufacturer reasonably should have known about.
To determine PDP prejudice, court must have a fair assurance that the prior decision was not substantially swayed.
Given high stakes, there was a substantial likelihood of settlement for claims directly relating to the defect.
Court's ruling that claims against successor corporation were equitably moot was advisory and is therefore vacated.
In re Motors Liquidation Co.
RSS Feed
RSS has been activated. This changes everything. Or at least those things that can be changed by having an RSS feed. Links are on the right menubar and below, viz:
http://www.circuitbarrister.com/feeds/posts/default
9, 10, 11, Fed, DC Tomorrow
As CB has a couple hundred pages of early modern drama and legal history to read this afternoon, the rest of today's slips will be logged tomorrow.
NB: Apparently, there's an interesting CFAA slip in the 9th. Cheers.
Eighth Circuit: Others First, Inc. v. Better Business Bureau
FRCP
No genuine issue of material fact where the pleadings in a claim for tortious interference are completely conclusory.
Defamation pleaded with insufficient particularity.
Others First, Inc. v. Better Business Bureau
Eighth Circuit: Gary Smith v. United Parcel Service
Discrimination (Title VII?)
Plaintiff did not establish pretextual nature of claim that conduct presented a nondiscriminatory reason for the employment action.
Gary Smith v. United Parcel Service
Eighth Circuit: United States v. Kenneth Borders
Conspiracy, Crim, Accomplice, FRE
Different theories of crime on special verdict do not necessarily indicate separate conspiracies.
Rental of unit and possession of key insufficient for accomplice liability where there was no proof that the deft knew the items stored there to be stolen.
Admission of evidence about civil commercial violations was harmless error.
No abuse of discretion in limiting cross for cooperating witnesses.
Admission of earlier plea agreement as evidence of overt act wasn't double jeopardy.
Summary timeline did not violate FRE.
Sentencing correct on merits.
United States v. Kenneth Borders
Seventh Circuit: Kathryn Marchetti v. Chicago Title Insurance
Property, Insurance
Title insurance satisfied claim and was properly subrogated in ensuing action by redress of the capital losses on a fraudulent transaction for land, so long as all other claims were barred through release or preclusion.
Kathryn Marchetti v. Chicago Title Insurance
Seventh Circuit: Susan Shott v. Robert Katz
FRCP, S1981, Discrimination
Where a claim is dismissed without prejudice, an appeal filed prior to the final date for amendment becomes timely after that date has passed.
Under S1981, the claimed retaliation need not be employment-related. It suffices that the claim arise from contract or employment-related events.
Implied retaliation by co-workers theory implies some level of agency with the employer.
Susan Shott v. Robert Katz
Sixth Circuit: Construction Contractors v. Federal Insurance Company
Contracts, Insurance
Under state law, where an insured company discovers the means of a loss by theft after acquiring an insurance policy against theft, knowledge of prior analogous conduct by the same employee is sufficient to trigger the single-employee loss limitation of the plan, which permissibly incorporates a limitation against prior claims.
Construction Contractors v. Federal Insurance Company
Sixth Circuit: USA v. George Rafidi
Predicates, Brady, FRCrimP, Sentencing
Given the requirement of use of force, the crime at issue is categorically a violent crime predicate conviction.
Gov't fulfilled Brady obligations with computer modeling information by enclosing a CD of the scan in discovery -- there was no affirmative duty on the gov't to do crime-scene computer modeling.
No plain error in sleeping juror cure.
Sentence not grossly disproportionate.
USA v. George Rafidi
Fifth Circuit: Hermenegildo Gomez-Perez v. Loretta Lynch
Immigration
State misdemeanor assault statute does not necessarily involve sufficient violence to be considered a crime of violence for immigration purposes. The different means of accomplishing the crime are not substantive parts of the crime, but rather means of accomplishing the single substantive aspect of the crime.
Hermenegildo Gomez-Perez v. Loretta Lynch
Fifth Circuit: Judy Hunter, et al v. Berkshire Hathaway, Inc., et
ERISA
Although general amendment provision of Plan allowed repeal of provisions prohibiting reductions in benefits, the acquiring company was bound by the terms of the merger, and is therefore barred from causing the acquired company to make (some of?) the amendments at issue.
Judy Hunter, et al v. Berkshire Hathaway, Inc., et
Fifth Circuit: Claimant ID 100068236 v. BP Exploration & Prodn, I
Contracts
Under admiralty rules for contracts, switching from selling cars to leasing cars is insufficient to qualify as a start-up business.
District court was correct to deny discretionary review on the question.
Claimant ID 100068236 v. BP Exploration & Prodn, I
Fifth Circuit: Carlos Trevino v. Lorie Davis, Director
Habeas
Petitioner permitted to appeal denial of federal Habeas, as the trial Ineffective Assistance claim was not necessarily defaulted in state Habeas, given the Ineffective Assistance provided on initial collateral appeal, and while the lack of mitigation investigation at trial should have put initial collateral counsel on notice of claim (cause), the investigation that was done reveals enough of a claim to suggest that the error was dispositive (prejudice) as to the key aggravating factor.
Carlos Trevino v. Lorie Davis, Director
Fourth Circuit: Leopold Munyakazi v. Loretta Lynch
Immigration
Inconsistencies and vagaries in testimony offer substantial evidence for adverse credibility decision of IJ.
Substantial evidence for agency's finding that the petitioner will end up in the civilian justice system rather than the military prisons.
Leopold Munyakazi v. Loretta Lynch
Second Circuit: U.S. v. Gabinskaya
Corporations, Fraud, Conspiracy, Insurance
In state litigation involving no-fault insurance, courts may look beyond the formal indicia of ownership when attempting to determine whether a corporation has been fraudulently incorporated.
Testimony relating to the conspirators' legal advice doesn't speak to knowing participation in the scheme.
U.S. v. Gabinskaya
Second Circuit: Williams v. Correction Officer Priatno
S1983, Administrative, PLSRA
Claim was properly administratively exhausted, as there was no procedure for appealing a grievance that had been improperly not filed.
Williams v. Correction Officer Priatno
First Circuit: US v. Vazquez-Mendez
Sentencing
Court appropriately considered personal factors and legitimately considered community factors while performing the sentencing pavane.
US v. Vazquez-Mendez
First Circuit: Burns v. Johnson
Discrimination, Title VII, Employment
Circumstantial evidence can suffice to establish a claim under a mixed-motive theory of discrimination.
Discrimination need not be both severe and pervasive.
Fear of retaliation presents a genuine issue of material fact as to employer liability, despite reporting procedures.
Burns v. Johnson
First Circuit: US v. Ortiz-Islas
Souter, Crim, Conspiracy, FRE, Sentencing
Plan to sell drugs in the jurisdiction was a second plan within the same conspiracy, as opposed to a second conspiracy.
Post-indictment evidence was sufficiently probative to be allowed.
Courts potential assignment of minimum sentence was at most harmless error.
No abuse of discretion in disparate sentences for co-conspirators.
US v. Ortiz-Islas
This one (temporarily) didn't go to Eleven.
Housekeeping note, 11th Circuit seems to have vanished from the feed. Looks like it dropped some weeks back -- will troubleshoot that.
(Net damage, it looks like about a dozen published decisions hit during our active times. Not ideal.)
Past opinions here:
http://www.ca11.uscourts.gov/published-opinions-log
-CB
Federal Circuit: MEDICINES COMPANY v. HOSPIRA, INC.
Patents, UCC, En Banc
For purposes of Patent law, a product is considered to be onsale when the parties make a sale or offer for sale under the UCC. Title to the embodiments or rights to the manufacturing must change hands -- stockpiling, contract for manufacturing, and other transactions of commercial benefit do not necessarily qualify.
MEDICINES COMPANY v. HOSPIRA, INC.
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
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