Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Eighth Circuit: United States v. Jeremy Conerd
Fourth Amendment
Report that a visitor was being assaulted in the house justified the approach to the curtilage when officer looked in basement window.
United States v. Jeremy Conerd
Eighth Circuit: United States v. James Hess
Crim, Taxidermy
Transaction involving a rare taxidermy specimen currently outlawed but initially taken when legal violated the Act.
Sentence substantively reasonable.
United States v. James Hess
Eighth Circuit: Marcus Hensley v. Carolyn W. Colvin
SSI
Letter from physician and past records, where the primary source of information on the claimant's condition, may be considered by ALJ in assessing work capacity.
Subjective pain reports and VA determination of disability appropriately considered.
Dissent -- Physicians report doesn't contradict test scores that indicate disability.
Marcus Hensley v. Carolyn W. Colvin
Eighth Circuit: United States v. Julia Nguyen
Immigration, Fraud, White Collar
Materiality requirement in immigration fraud statute does not require that the agency actually be misled, merely that false information be provided on a dispositive fact.
Third-party, cirumstantially proved misrepresentations provide sufficient evidence for immigration and SSI fraud.
Automatically generated letters from state sufficient for mail fraud conviction where foreseeable and not communicating messages adverse to the scheme to defraud.
Court properly considered named payees on checks without individualized showing of loss, as the theft of identity is sufficient to establish them as victim.
Sentence substantively reasonable.
United States v. Julia Nguyen
Eighth Circuit: Randall Corwin v. City of Independence, MO.
S1983
Denial of S1983 against jail officials and municipality for five day delay in receipt of physician care for broken hand, as incidental care sufficed under the standard and that there was no proof that the delay caused long-term problems.
Randall Corwin v. City of Independence, MO.
Fifth Circuit: Sealed Petitioner v. Sealed Respondent
Immigration
Petitioner made enough of a showing to require that the bureau consider whether the foreign government's anti-terrorism grounds for persecuting the petitioner were pretextual.
Sealed Petitioner v. Sealed Respondent
Fifth Circuit: Deadra Combs v. City of Huntington, Texas
Title VII, Fees
Degree of success is the most important consideration when deciding whether to adjust lodestar fee award.
Abuse of discretion to revise lodestar downward due solely to proportionality to award won; the appropriate consideration is ratio of award won to award sought.
Deadra Combs v. City of Huntington, Texas
Fifth Circuit: State of Texas, et al v. EPA, et al
Environment, Injunctions, Statutory Construction, Administrative
Statute's conferral of jurisdiction for review is distinct from the section indicating correct venue.
Statute does not permit agency administrator to unilaterally remove action to DC Circuit upon determination of nationwide scope.
Final rule is a locally/regionally applicable standard, given state variances, agency findings.
Statute did not compel state to perform source-specific analysis.
Timetable extends beyond jurisidiction under rule.
Strong likelihood that viability of power grid insufficiently considered.
Irreparable harms, given that recovery of costs could not be made in the course of business, threats to power grid.
Ready interest to affordable electricity outweighs reduction in haze.
Texas and Oklahoma plans stayed in their entirety.
Concurrence -- Long-term projects can be begun within timeframes of limited jurisdiction.
Fifth Circuit: Oscar Gomez v. USPC
Sentencing
Although the court lacks jurisdiction to consider a procedural challenge to a refusal to depart downwards from sentencing guidelines when setting a sentence that has been partially served abroad, it has jurisdiction to review the substantive reasonableness of the refusal to allow a downward departure.
No abuse of discretion, though, given presumption of reasonability and procedural consideration of the possibility of torture abroad.
Oscar Gomez v. USPC
First Circuit: US v. McNicol
Statutory Construction, FRCP
Review of cross-motions for summary judgment limited to the parties' lists of uncontested facts in the court below.
Pleadings below gainsay Deft's salmagundi of contentions that estate asset was transferred to defray administrative costs.
Deft's claim that the present administrator was not the administrator when the stock was transferred cannot be raised for the first time on appeal.
US v. McNicol
First Circuit: US v. Gall
Double Jeopardy, FRCrimP
Acceptance of guilty plea to a lesser-included offense which is later withdrawn in favor of a supervening offense does not constitute Double Jeopardy, as the deft is not placed in meaningful jeopardy by the initial charge.
No clear error to vacating of initial plea after PSR had issued.
Ineffective Assistance claim to be resolved in collateral proceeding. Plea deal's terms that the maximum prison term would be that of the first (lesser-included) offense are insufficient to establish that it was actually for that offense -- extrinsic evidence would have to be considered.
Prosecutor's indication that a PSR that went beyond the terms of the deal was correct was not plain error.
Sentence substantively reasonable, release condition excessive -- remand to revise/explain.
US v. Gall
First Circuit: Ms. S. v. Regional School Unit 72
Administrative, IDEA
Remand to consider rulemaking's compliance with state administrative procedure act.
Filing date that allowed more time than the corresponding federal stature is not per se an illogical outcome that requires review of legislative intent.
Subsequent legislative review of the rulemaking cannot cure a procedural defect in notice for the rulemaking absent review of notice.
No error in IDEA FAPE claim dismissal given facts.
Ms. S. v. Regional School Unit 72
First Circuit: US v. Calderon
Brady, Grand Juries
Undisclosed evidence was not dispositive -- court below did not impose a sufficiency of the evidence test in in asking whether the suppressed evidence was dispositive of the verdict.
Knowledge of plea deal in second jurisdiction cannot be imputed to the prosecution in the first jurisdiction as the basis for a Brady claim.
Absent grave prosecutorial misconduct, guilty verdict at trial means that there was sufficient probable cause for the indictment.
US v. Calderon
First Circuit: Rodriguez v. Lynch
Immigration
Past encounters with hostile protesters insufficiently severe and systemic, and were not reported to police.
Court cannot consider evidence not before the IJ/board on subjective & objective fear of future persecution.
Rodriguez v. Lynch .
Out of time
DC Circuit: EarthReports, Inc. v. FERC
Environment, Administrative
Agency environmental review that did not consider the net increase in international exports of natural gas after the expansion of the facility was not arbitrary or capricious, as the agency would have to subsequently authorize the increase in exports.
General carbon cost metric is insufficiently standard.
General challenges to shipping activity either outside scope or sufficiently accounted for.
EarthReports, Inc. v. FERC
Eleventh Circuit: USA v. Secretary, Florida Department of Corrections, et al.
Religion, Prisons
Under federal statute, assertion of cost burden is insufficient basis for state's refusal to provide kosher meals to prisoners who hold the requisite sincere religious belief.
USA v. Secretary, Florida Department of Corrections, et al.
Ninth Circuit: JL BEVERAGE CO V. JIM BEAM BRANDS CO.
FRCP, Trademarks
Error to issue summary judgement referencing only the denial of a preliminary injunction, as the considerations are distinct.
Sufficient indicia of confusion and foreknowledge to create a genuine issue of material fact as to consumer confusion.
JL BEVERAGE CO V. JIM BEAM BRANDS CO.
Ninth Circuit: USA V. JIMMY TORRES
Fourth Amendment, Sentencing
Police impoundment and inventory procedures are sufficiently canalized to assure that impoundment of vehicle from unlicensed driver without proof of ownership and subsequent search of the air filter did not violate the Fourth Amendment.
As magistrate's recommendation was adopted in full, judge's subsequent comments in tension with its findings did not violate due process, and the magistrate's findings are not facially inconsistent with the justification for the inventory search.
Appeals waiver does not bar challenge to residual clause sentencing.
Guidelines residual clause void for vagueness, according to government's concession. Assumed without being decided.
USA V. JIMMY TORRES
Ninth Circuit: IN RE COMPLAINT OF JUDICIAL MISCONDUCT JUDICIAL MISCONDUCT
Judicial Ethics, Legal Ethics
Judges' external teaching and speaking on law-related subjects and association with members of the bar did not require recusal in disbarment proceedings against those members of the bar. The challenge to refusal to recuse is merits-based, and must be dismissed.
IN RE COMPLAINT OF JUDICIAL MISCONDUCT JUDICIAL MISCONDUCT
Eighth Circuit: United States v. Stoney End of Horn
Crim, FRE, Hearsay
Sufficient evidence despite inconsistencies, as inconsistencies could have been raised in cross-examination.
Error to admit hearsay, as external corroboration is not an indicium of speaker's truthfulness. Harmless error, given corroboration.
No abuse of discretion in upward departure in sentencing.
United States v. Stoney End of Horn
Eighth Circuit: United States v. Bob Woods
Fourth Amendment, Miranda
Police had sufficiently reasonable suspicion to extend traffic stop for canine search, given odor of drugs, digital scales, and tip that there was a hidden compartment.
Refusal to sign Miranda waiver does not make subsequent statements inadmissible.
United States v. Bob Woods
Eighth Circuit: Luis Herrera v. United States
Habeas, Drugs, Ineffective Assistance
Denial of writ for ineffective assistance, as a statute referring to one quantity of pure substance and a second quantity of diluted substance applies where the deft sold a quantity of diluted substance containing the proscribed amount of the pure substance.
Luis Herrera v. United States
Eighth Circuit: Kenneth Stewart, Jr. v. Nucor Corporation
Contracts, Employment, Torts
Boilerplate negligence release valid and not unconscionable, as the language was plain and the trainee employee was permitted to ask questions about the form.
Kenneth Stewart, Jr. v. Nucor Corporation
Seventh Circuit: Robert Schaefer v. Walker Bros. Enterprises, Inc.
FLSA, Deference, Administrative
To determine whether additional duties are related to or incidental to tipped duties, look to logical relation to the tipped duties, not industry practice.
No Auer deference to agency boilerplate language for statutory notification of rights.
Robert Schaefer v. Walker Bros. Enterprises, Inc.
Seventh Circuit: FDIC v. Kenneth Hoffman, Jr.
Federal Jurisdiction, Contracts
Court retains jurisdiction when FDIC assigns its interest in the loan to a private company, as the case continues to arise under federal law.
Under state law, release of claim that contains a general release of claim as well as a release of a specific claim is facially ambiguous.
Under state law, the fair and customary meaning prevails.
FDIC v. Kenneth Hoffman, Jr.
Seventh Circuit: Laura Hatcher v. Board of Trustees
Employment, Discrimination, Title VII
Employee's mistaken belief that statute compelled reporting of misconduct did not transform the speech in the context of employment to protected speech.
No genuine issue of fact over pretextual nature of nondiscriminatory motive, given decisions of impartial committee and subjective judgement of decisionmaker.
Laura Hatcher v. Board of Trustees
Seventh Circuit: USA v. Brian Miller
Statutory Construction, Sentencing
The intent of the creator is properly considered when determining the lasciviousness of an image.
No procedural error, as mitigation factors need not be itemized. Court cannot consider reasonableness of statutory minimum. De minimus errors in conditions of supervised release do not justify resentencing.
USA v. Brian Miller
Third Circuit: Sebastian Richardson v. Director Federal Bureau of Prisons
Class Actions, Mootness, FRCP
Where a representative of a class seeking prospective injunctive relief files a claim susceptible to mootness, there is not an untimely delay in seeking class certification, and the class nature of the claim is evident from the initial claim, the class certification can relate back to the filing date of the initial claim.
Sebastian Richardson v. Director Federal Bureau of Prisons
Second Circuit: Fuentes v. Griffin
Brady, Habeas, AEDPA
Habeas granted, as psychiatric records of critical witness offered substantial impeachment value.
Dissent: Materiality is intrinsically subjective.
Fuentes v. Griffin
Second Circuit: Mazzei v. Money Store
Class Actions, FRCP
A court has the power and obligation to decertify a class after a jury verdict. Class members enjoy equitable tolling for the duration of the class. Findings of facts by the jury must be respected, unless egregious, serious error, or a miscarriage of justice.
No abuse of discretion in court's determination that lack of categorical privvity barred the class formation on grounds of typicality of representative and predominance of claim.
Mazzei v. Money Store
Federal Circuit: CROOKER v. US
Sentencing, Torts
As federal sentencing law governs claims for monetary damages for imprisonment due to convictions later reversed, when a subsequent sentencing credits that time to offset the sentence, the statutory monetary remedy is unavailable.
CROOKER v. US
Federal Circuit: COAST PROFESSIONAL, INC. v. US
Administrative, Contract
Additional procurements merited by prior performance are not options, as negotiated elsewhere in the contract, but rather new contracts, and the court below therefore properly has jurisdiction over related claims.
COAST PROFESSIONAL, INC. v. US
Eighth Circuit: Jamie Smith v. AS America, Inc.
FMLA, Estoppel
No clear error in court's holding that back illness was a chronic condition.
Liquidated damages are appropriate unless affirmative defense of good faith conduct is established.
Since fees evidence didn't go to merits, no abuse of discretion in court's award of fees despite lack of disclosure in discovery.
No clear error in court refusing to bar award under judicial estoppel where there is no showing that there was a deliberate misrepresentation or one that gave the party any advantage in the proceeding.
Given limited probative value of the records, court erred in reducing award by crediting the after-acquired-evidence as a basis for the end of employment, rather than crediting the witness' testimony.
Jamie Smith v. AS America, Inc.
Eighth Circuit: United States v. Marcus Eason
FRE, Crim
No abuse of discretion in barring police videotape on cross, as it would be impeachment on a collateral matter, or on recall, as the prosecution hadn't been given a copy and the omission didn't impact deft's substantial rights.
No abuse of discretion in barring deft's crime scene photos, as prosecution hadn't been given a copy, and the omission didn't impact deft's substantial rights.
Sufficient evidence on possession charge.
United States v. Marcus Eason
Eighth Circuit: Joel Munt v. Kent Grandlienard
Habeas, Jury Selection
State courts did not unreasonably determine that a trial court's empaneling of a juror who said that a deft who confessed but claimed mental illness should be convicted was constitutional, as the juror was speaking of mental illness, and not of the relevant law.
Joel Munt v. Kent Grandlienard
Eighth Circuit: United States v. Enrique Trevino
FRCrimP, Sixth Amendment, Sentencing
No abuse of discretion in denial of attempt to withdraw guilty plea, as the potential sentence was explained, deft stated in colloquy that representation was adequate, and deft's ability to challenge sentencing amounts was preserved. Court's statement that ineffective assistance claims should be deferred to Habeas was inappropriately categorical, but not prejudicial.
Court's refusal to appoint substitute counsel was correct, as dissatisfaction stemmed from results, not from process.
Court did not threaten deft with reduction in acceptance of responsibility sentencing offset if he challenged the PSR--unchallenged aspects of PSR therefore stand.
United States v. Enrique Trevino
Eighth Circuit: Kent Bernbeck v. John Gale
Elections, Standing
Plaintiff has no standing to raise OPOV claim based on state law setting a minimum number of petition signatures from each geographical area, as the alleged inability to engage in future conduct is insufficiently imminent.
Plaintiff has not proved his own voter registration, so he has no basis for claim as a petition signer.
Dissent -- This issue wasn't briefed, and there is no such thing as a registered voter in this state.
Eighth Circuit: Jonathan Truong v. Ahmad Hassan
S1983
To state a substantive due process claim against a bus driver for trying to remove an unruly passenger from the outside of the bus, the plaintiff must show that the driver intended to harm the unruly passenger.
Jonathan Truong v. Ahmad Hassan
Eighth Circuit: Lovelle Banks v. John Deere and Company
FRCP, Discrimination, Title VII
Unsworn testimony and a party's own interrogatories provided insufficient evidence that the employment action and work environment were inappropriately race-based.
Lovelle Banks v. John Deere and Company
Eighth Circuit: Susan Parks v. Ariens Company
Torts
State law would likely hold that a manufacturer meets the duty of care to a reasonably knowledgeable customer by offering an optional safety device for sale. Although the doctrine is not included in the statutorily defined list of affirmative defenses, it qualifies as an antecedent question of reasonable duty.
Susan Parks v. Ariens Company
Sixth Circuit: Detroit Free Press v. Dep't of Justice
FOIA, Privacy
Given the privacy interests of the individual, booking photos qualify for an exception to federal public disclosure laws.
Concurrence -- Sometimes, there might be a public interest established to the contrary.
Dissent -- Where common law and practice don't establish the right, it can't be the referent of the explicit statutory exception.
Detroit Free Press v. Dep't of Justice
Sixth Circuit: USA v. Jimmy Jones
Sentencing
Where the sentence is within the statutory range, enhancements need only be established by a preponderance.
USA v. Jimmy Jones
Sixth Circuit: Cedric Carter v. Betty Mitchell
Habeas, AEDPA, Ineffective Assistance
Where specific claims are remanded, the District court should consider those claims in full, not the appeals court's characterization of them.
No abuse of discretion to deny a stay to exhaust state Habeas claims in a mixed petition where the evidence was available to deft on initial direct and collateral review
Although lack of initial objection to magistrate's finding on one collateral review claim is not jurisdictional for purposes of appellate review, this claim is insufficiently extraordinary to excuse the omission.
Trial counsel might have had strategic purpose for eliciting negative testimony on direct examination of mitigation expert and not calling the deft's mother.
State collateral review did not inappropriately consider fundamental fairness when considering prejudice under Strickland, given lack of specific indication in the record.
Cedric Carter v. Betty Mitchell
Fifth Circuit: Ronda Crutchfield, et al v. Sewerage & Water Board
FRCP, Class Actions
Appeals court, in assuring itself of its own jurisdiction, has power to review whether the District Court had initial jurisdiction under federal officer doctrine prior to denying certification of the class.
As the general circumstantial theory of harm would be displaced under state law by particulars of each claim where available, lack of predominance allowed court to bar certification of the class without abusing its discretion.
Ronda Crutchfield, et al v. Sewerage & Water BoDistrict Court had suard
Second Circuit: Blow v. United States
Habeas, AEDPA, Sentencing, Circuit Split
Permission granted for second/successive federal Habeas petition challenging sentence imposed under residual clause of Sentencing Guidelines, as the language is identical to the ACCA residual clause found unconstitutional.
Circuit split flagged.
Blow v. United States
Second Circuit: Florez v. CIA
FOIA
A second agency's post-response disclosures probative of the first agency's refusal to provide information justify a limited remand to the District Court in the interests of judicial efficiency.
Dissent: The review is limited to a review of the sufficiency of the initial agency decision--error to remand without a specific link to the earlier decision process.
Florez v. CIA
Second Circuit: SRM Global Master Fund Ltd. P’ship v. Bear Stearns Cos.
Securities, Class Actions, Statute of Limitations, Fraud
Equitable tolling of the statute of limitations against individual claims during the period in which a class is certified is not available for claims of material misrepresentation under the securities laws, as the limiting statute is a statute of repose that creates a substantive right immune to common law equitable relief.
Insufficient proof of reliance for common law fraud claims.
SRM Global Master Fund Ltd. P’ship v. Bear Stearns Cos.
Second Circuit: Microsoft v. United States
Computers, Fourth Amendment, ECPA
When legislation referenced warrants, it used the term as a legal term of art, one that distinguishes them from subpoenas. Extraterritorial application is therefore precluded.
As the statute focuses on the act of invasion of the user's privacy, data that would be accessed extraterritorially cannot be reached by warrants under the statute.
Concurrence in J -- Particularity of location is problematic in an electronic context, so the presumption against extraterritoriality doesn't afford a clear bar to conduct that the Act seems to proscribe. Law needs to be rewritten.
Microsoft v. United States
First Circuit: Rodriguez-Miranda v. Benin
FRCP, Due Process
Post-judgment motion to join defts for purposes of enforcing the judgment did not have to mention the specific FRCP rule, as the motion was made with sufficient particularity to afford notice.
Defts can be joined after entry of judgment -- the matter remains a pending one.
No plain error in holding newly joined defts jointly and severally liable for full judgment, as the court held them to be alter egos, not successors in (perhaps partial) interest.
Notice and opportunity to challenge sufficed for personal jurisdiction.
Court's imposition of contempt fines was civil, not criminal, as it was attempting to enforce compliance,and was therefore procedurally sufficient.
Rodriguez-Miranda v. Benin
First Circuit: Kelley v. Fidelity Mgmt. Trust Co.
Souter, ERISA, Agency
Funds transferred to the plan administrator's account for a fixed-sum disbursement to the beneficiary are not transmogrified into plan assets while in the holding account, and the general beneficiaries of the plan therefore have no claim on the interest earned.
Kelley v. Fidelity Mgmt. Trust Co.
First Circuit: US v. Stokes
Fourth Amendment, Sentencing
Where deft doesn't establish knowledge of behind-the-scenes arrangement at Post Office, no reasonable expectation of privacy for materials in post office box.
Where not appearing on the envelope as the sender or addressee, deft has no privacy interest in the sealed letters absent a showing of connection.
Affidavits and images of the seized envelopes addressed to the deft suffices to prove that the envelopes have not been opened.
No clear error in loss findings for sentencing, since, even if individual records were proved to be unrelated, the breadth of the scheme suggests that there were losses outside the record.
US v. Stokes
Federal Circuit
Out of time for today -- two more in the Federal Circuit, viz:
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5056.Opinion.7-8-2016.1.PDF
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5077.Opinion.7-8-2016.1.PDF
Cheers.
-CB
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5056.Opinion.7-8-2016.1.PDF
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5077.Opinion.7-8-2016.1.PDF
Cheers.
-CB
DC Circuit: Carlos Loumiet v. USA
FTCA, Bivvens, Statute of Limitations
Constitutionally defective exercises of discretion do not shield the government from suit under the discretionary function exception to the FTCA.
The cumulative effect of continuing violations must be considered when considering when a claim under Bivvens accrues.
Carlos Loumiet v. USA
DC Circuit: Sandra Marshall v. Honeywell Technology Systems
FRCP, Estoppel, Bankruptcy
District court summary judgments based in judicial estoppel are reviewed for abuse of discretion.
Here, as there little risk that the contradictory representations arose from inadvertence or mistake, there was no abuse of discretion.
Circuit split flagged on related question.
Sandra Marshall v. Honeywell Technology Systems
Eleventh Circuit: In re: Gary Baptiste
Habeas, AEDPA
AEDPA's second-or-successive bar should be applied to applications under the state prisoner federal Habeas statute.
Denied here on merits and law of the case.
In re: Gary Baptiste
Eleventh Circuit: Hartford Accident and Indemnity Company v. Crum & Forster Specialty Insurance Company, et al.
FRCP
A settlement conditioned on vacatur is not a voluntary forfeiture of appellate review that therefore forecloses the equitable remedy of vacatur, as some settlements are sufficiently in the public interest to justify the erasure of valuable precedent.
Hartford Accident and Indemnity Company v. Crum & Forster Specialty Insurance Company, et al.
Eleventh Circuit: Johnny L. Marshall v. Secretary, Florida Department of Corrections, et al.
Habeas, Ineffective Assistance, Fourth Amendment, AEDPA
Habeas for ineffective assistance denied where counsel did not attempt to suppress identification made after suspect was transported back to the scene of the crime during a Terry stop.
Concurrence: State statute prohibits doing that during a Terrry stop, but AEDPA prohibits the writ, since the state statutory argument wasn't made in state Habeas.
Johnny L. Marshall v. Secretary, Florida Department of Corrections, et al.
Tenth Circuit: Maiteki v. Marten Transport
FCRA
Company's reinvestigation of annotation on driving employment record was sufficient, given that the stature does not require exhaustive reinvestigation, and that the plaintiff's request for reinvestigation was insufficiently particular.
Maiteki v. Marten Transport
Ninth Circuit: OTGONBAYAR LKHAGVASUREN V. LORETTA E. LYNCH
Immigration
Sufficient evidence for agency finding that persecution was animated by anticorruption beliefs of petitioner, or that the corruption was connected to the government.
OTGONBAYAR LKHAGVASUREN V. LORETTA E. LYNCH
Ninth Circuit: MARTIN SMITH V. IRS
Bankruptcy, Taxes
Post-assessment tax form filing was insufficiently honest and reasonable to allow tax debt to be discharged in bankruptcy.
MARTIN SMITH V. IRS
Ninth Circuit: COMPLETELY SEALED CASE: GRAND JURY SUBPOENA
FRCP, Fourth Amendment, Computers
Subpoena target has a reasonable expectation of privacy in emails on personal account that dealt with personal matters. Error not to quash overbroad subpoena that would have returned them.
Public official's conversations with state attorneys relating to ethics and conflicts of interest are not privileged here, as the state owns the privilege.
COMPLETELY SEALED CASE: GRAND JURY SUBPOENA
Ninth Circuit: MACARIO BONILLA V. LORETTA E. LYNCH
Immigration, Administrative
Although the claim was not advanced with sufficient diligence, the agency's refusal to reopen the earlier proceeding on the grounds that the deportation was a transformative event that deprived the heretofore lawful permanent resident of a viable domicile was error.
Courts have power to review the agency's denial of an application for a sua sponte reopening where the application asserts legal or constitutional error. The agency's subsequent decision, however, is unreviewable.
MACARIO BONILLA V. LORETTA E. LYNCH
Ninth Circuit: FACEBOOK, INC. V. STEVEN VACHANI
Computers, CFAA
For purposes of the federal anti-spam law, social networking messages sent to internal and external accounts by a third party on behalf of a user were not misleading, as the user, the third party, and the social networking site were co-authors, and the internal messages were appropriately identified.
Where a third party uses the logon credentials of a site's user with the users permission, but after the explicit revocation of permission by the site and subsequently circumvents a technological barrier erected against it, the access is unauthorized for purposes of the relevant statute.
Personal liability and discovery sanctions upheld, damages run from the receipt of the C&D.
FACEBOOK, INC. V. STEVEN VACHANI
Ninth Circuit: EQUITY INCOME PARTNERS, LP V. CHICAGO TITLE INSURANCE COMP.
Insurance, Contracts
Certified questions to Arizona on insurance policy contract.
Facts:
Lender lent purchaser money to buy land. Land was later determined to be without access. Lender's insurer assessed the impact of the loss of access, and paid the lender that amount. Lender's subsequent assessment said that the insurer had undervalued the impact. Lender then purchased the properties with a full-credit bid at sale of estate, and the insurer now maintains that lender's payment to itself absolved the insurer of further liability vis a vis the earlier transaction.
Questions about the relevant boilerplate language certified to state high court.
EQUITY INCOME PARTNERS, LP V. CHICAGO TITLE INSURANCE COMP.
Ninth Circuit: CALIFORNIA SEA URCHIN COMM'N V. MICHAEL BEAN
Environmental, Administrative, Statute of Limitations.
The APA time limit to challenge the ending of a specific agency program runs from the order terminating the program, not the order holding that the agency has the authority to terminate the program. An earlier challenge would be theoretical.
CALIFORNIA SEA URCHIN COMM'N V. MICHAEL BEAN
Eighth Circuit: United States v. Benjamin Hart
Sentencing
No abuse of discretion in condition on supervised release requiring disclosure of financial records and the barring of new charge accounts where an apparently indigent deft is required to make minimal restitution.
United States v. Benjamin Hart
Eighth Circuit: United States ex rel Fields v. Bi-State Devel. Agency, etc.
FRCP, Federal Jurisdiction, FCA
An inter-state compact entity's interlocutory appeal asserting lack of jurisdiction under the False Claims Act is not sufficiently final for appellate review, as it does not implicate sovereign immunity under the 11th Amendment, which, although related, is a distinct claim that has to be asserted below.
Eighth Circuit: United States ex rel Fields v. Bi-State Devel. Agency, etc.
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
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