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.
Seventh Circuit: Highway J Citizens Group UA v. TRAN
Deference to implicit agency view that road renovation project falls within NEPA exclusion, since agency approved the program.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-05/C:17-1036:J:Easterbrook:aut:T:fnOp:N:2165825:S:0
Seventh Circuit: John Crane, Incorporated v. Shein Law Center, Ltd.
Insufficient personal jurisdiction over out of state counsel under state long-arm statute where all contacts with forum state were incidental to the litigation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-04/C:17-1926:J:Kanne:aut:T:fnOp:N:2165287:S:0
Seventh Circuit: Cheryl Dalton v. Teva North America
Bare statement of diversity of citizenship does not suffice for jurisdiction.
State liability statute required expert testimony on causation; neither a claim of obviousness nor a strict liability theory of claim defeats this.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-04/C:17-1990:J:Barrett:aut:T:fnOp:N:2165052:S:0
Sixth Circuit: Sunrise Cooperative v. United States Dep't of Agric.
Agency's regulation of benefit plan foreclosed by Chevron step one: although there have been substantial changes in the business entity, the statute unambiguously qualifies the entity as a legitimate recipient.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0104p-06.pdf
Sixth Circuit: United States v. Alejandro Cota-Luna
Court's rejection of plea agreement was an abuse of discretion, as the stated reasons weren't relevant to the defts culpability. (Deft had no knowledge of the amount of drugs underneath the truck.)
Reassigned on remand.
Concur in J: legal error in safety valve relief sentencing consideration sufficed for remand.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0103p-06.pdf
Fourth Circuit: Kathy A. Netro v. GBMC
Portion of unpaid state court judgment that plaintiff would eventually have to reimburse to the federal government sufficed for Article III injury for the plaintiff.
Statute, although not formally a qui tam statute, effected a partial assignment of claim sufficient for standing.
Delay in payment of judgment not unreasonable, though.
http://www.ca4.uscourts.gov/opinions/171597.P.pdf
Second Circuit: US v. Castillo
Government's premature concession that advisory sentencing guidelines residual clause was void for vagueness did not forfeit the claim, as it's a question of law, and the court can decide on its own.
Offense can be defined for purposes of modified categorical review by combining common law, state codes, and MPC.
Recklessness suffices for the mental state when categorizing manslaughter as a crime of violence.
Under modified categorical review, state manslaughter statute is a crime of violence, as even an omission can(?) require recklessness.
http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/2/doc/16-4129_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/2/hilite/
Second Circuit: duPurton v. US
New evidence insufficient for coram nobis petition, as it doesn't conclusively establish earlier error.
http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/1/doc/17-151_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/1/hilite/
First Circuit: Potvin v. Speedway LLC
Property owner has no duty to warn where the danger is open and obvious.
Distracting effects of nearby gas pumps waived as not raised below.
Absent evidence of design defects in statutorily mandated safety devices, no duty to remedy any danger they present.
No abuse of discretion in District Court's substitution of one deft for another, given offer to indemnify.
"Longiloquent" apparently a word.
http://media.ca1.uscourts.gov/pdf.opinions/17-1993P-01A.pdf
First Circuit: Coskery v. Berryhill
Dicta: Deference to agency view that amendment of regulation didn't have retroactive effect.
ALJ's adverse credibility determination can be upheld on other grounds.
ALJ considered appropriately broad range of evidence.
http://media.ca1.uscourts.gov/pdf.opinions/17-1886P-01A.pdf
First Circuit: US v. Melendez-Gonzales
AUMF for the War of Terror sufficed for statutory tolling of the statute of limitations; the indictment might otherwise have been untimely.
Court's instruction that a group of visitors not attend in full military dress did not, for constitutional purposes, close the courtroom. Challenge to court's subsequent mention in jury instructions waived for not being raised below.
Prosc. witness description of "fraud" not unfairly prejudicial, possible hearsay harmless error.
Sentencing bumps, including uncharged conduct, established by preponderance; longer sentence for deft convicted of fewer counts not unreasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1084P-01A.pdf
First Circuit: US v. Lawson
SORNA -- remand for unexplained upward variance in period of supervised release.
http://media.ca1.uscourts.gov/pdf.opinions/17-1084P-01A.pdf
Signing off for the week.
Much reading to do about early modern law & drama. Back next week, if the crick don't rise. Decisions in the interval (including some from yesterday) are water under the dam. This site is basically an odd mix of work-in-progress, proof-of-concept, and going concern. In short, I post when I have the time. Kind of a batting practice, really. Cheers.
-CB
Fifth Circuit: Marc Veasey, et al v. Greg Abbott, et al
En Banc, Election Law
(Panel of 15)
(7 + 2 partial* & in the judgment)
*A claim of discriminatory purpose in the passage of a law cannot be based on statements from legislators opposed to the passage of the bill.* (This part not joined by the 2)
In assessing discriminatory effect under the Voting Rights Act, a multi-factor test should be used, as opposed to a bright-line nexus requirement.
No ruling on violations of the 1st and 14th Amendment burden of right to vote, as a finding of statutory violation results in the same remedy.
Voter ID requirement was not a poll tax before the law was changed to make the ID free, and is still not a poll tax.
Not an abuse of discretion for the District Court to fashion a remedy, as the legislature is out of session.
Concurrence (2, both joining plurality, one in part):
Multifactor test good, as 5th invented much of it.
Won't open the floodgates, as courts can closely weigh factors.
Concurrence / Dissent (5)
Not a poll tax. Opinion otherwise incorrect. (68pp, mostly findings and merits)
Dissent (3, all in c/d above)
ID requirement still in place, since those who now have the ID must show it.
Judge below made myriad errors.
Concur/Dissent, Concur in J (1, joining plurality in part)
Discriminatory motive analysis of the plurality re-weighed merits inappropriately.
Dissent (6, all non-plurality)
Record justifies reversal on discriminatory purpose.
Dissent (2, both in prior dissent)
Record justifies reversal on discriminatory effect.
Dissent (1, Partially joined plurality)
Record justifies affirming on discriminatory intent.
Takeaway (remember, this is quick work) 9 for Remand for multifactor test on discriminatory effect; 8 for affirming on discriminatory purpose (7 for remand); 14 for the lack of Poll Tax violation; 3 for egg salad; 2 for pastrami.
Marc Veasey, et al v. Greg Abbott, et al
Third Circuit: USA v. Raymond Napolitan
Habeas, Federal Jurisdiction
A federal court does not abuse its discretion in ordering a custodial sentence to be served consecutively with a state sentence despite the possibility that the state sentence was rendered unconstitutionally.
Procedurally, this means that a state custodial sentence cannot be challenged on constitutional grounds on federal direct appeal.
USA v. Raymond Napolitan
Second Circuit: United States v. Jones
Sentencing
Plain error to hold under categorical review that state statute is a valid predicate crime of violence for the purposes of the sentencing guidelines.
United States v. Jones
Second Circuit: Orchard Hill Master Fund v. SBAC Corp.
Contracts, Your guess is as good as mine
Where a contract for payment of interest on a note compels offsetting payments where the note is converted between the computation date and the payment date, the payment of final interest to the noteholder upon maturity is a contractually distinct mechanism, and the contract provision canceling the first mechanism is most appropriately read as enabling the second.
Perhaps.
Orchard Hill Master Fund v. SBAC Corp.
Second Circuit: Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties
International, FSIA
Error for court below to use the Executive Order implementing sanctions to define the scope of foreign state entities under the FSIA. Definition comes from established constructions.
US corporate entities cannot equitably be read as alter egos of foreign citizens in order to qualify for the protections of a statute requiring foreign nationality. An equitable alter ego construction can, however, be used to establish the merits of a claim against the entity on behalf of the state.
Insufficient day-to-day control and disregard of the corporate form to establish entity's liability on behalf of the foreign state.
Although second statute is codified proximate to the FSIA, an agency or instrumentality might qualify under one but not the other, since the reference in one statute is to foreign states, and the other refers to terrorist organizations.
Alter ego implies a more profound degree of control than does agency/instrumentality.
Government had a possessory interest in the seized assets because the assets met the terms of the executive order, not because the court trustee had actual possession.
Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties
Second Circuit: In re 650 Fifth Avenue and Related Properties
FRCP, Fourth Amendment
(Summary judgment rulings on merits.)
Sua sponte grant of summary judgment on affirmative defense of statute of limitations procedurally prejudiced the nonmovant, and is barred under FRCP.
Warrant in civil forfeiture action that did not explicitly incorporate the supporting affidavit was insufficiently particular. Error by the court below in holding that evidence preservation and discovery obligations meant that the evidence was admissible under inevitable discovery, since the action at the time of the service of warrant imposed limited production requirements.
Seven page caption.
In re 650 Fifth Avenue and Related Properties
First Circuit: Marrero-Mendez v. Calixto-Rodriguez
S1983, Religion, First Amendment, Establishment Clause
Even absent consideration of the on-point precedent, denial of qualified immunity for S1983 challenge to police group prayer would be upheld.
Marrero-Mendez v. Calixto-Rodriguez
Out of Time
Out of time -- here are the rest of the links:
Ninth:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/18/14-15695.pdf
Tenth:
https://www.ca10.uscourts.gov/opinions/14/14-1294.pdf
https://www.ca10.uscourts.gov/opinions/14/14-1164.pdf
Eleventh:
http://media.ca11.uscourts.gov/opinions/pub/files/20161366114000.ORD.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201614556.ord.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201614756.ORD.pdf
DC:
https://www.cadc.uscourts.gov/internet/opinions.nsf/6F1E74625D7898A985257FF5005066F6/$file/12-3086-1625475.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/3D375003952F4CDE85257FF500506715/$file/14-5305-1625459.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/19C8333280CE902F85257FF50050673C/$file/15-5051-1625448.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/9890A7B22D2FAFC385257FF500506755/$file/15-5118-1625439.pdf
Federal Circuit:
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1038.Opinion.7-15-2016.1.PDF
Cheers.
-CB
Eighth Circuit: James Pudlowski v. The St. Louis Rams LLC
Class Actions, CAFA, Federal Jurisdiction
Absent claim of lack of jurisdiction, removal notice under CAFA need only make a short plain statement with a plausible claim to removal. As there was no obligation to prove diversity at removal, affidavits establishing diversity can be considered post-removal.
James Pudlowski v. The St. Louis Rams LLC
Eighth Circuit: Mary Hurst v. Southern Arkansas University
Bankruptcy
As payments can be made while maintaining a minimal standard of living, no discharge of student loan debt.
Dissent: Undue hardship under totality.
Mary Hurst v. Southern Arkansas University
Eighth Circuit: Civic Partners Sioux City, LLC v. Main Street Theatres
Contracts, Property
Covenant outside the lease to obtain the consent of a third party prior to the ending of a lease did not bar the ending of the lease according to the lease's plain terms. Lease's commitment to make payments between the parties did not bar the ending of the lease.
Although the third party was a more than incidental beneficiary of the lease, this would merely provide a cause of action upon breach.
Civic Partners Sioux City, LLC v. Main Street Theatres
Eighth Circuit: United States v. Shane Rodriquez
Fourth Amendment, Sentencing
Given parole record and explicit general consent to search of the vehicle, vehicle search was a legitimate parole search, and not an unlawful search incident to arrest.
United States v. Shane Rodriquez
Eighth Circuit: Capson Physicians Insurance Co v. MMIC Insurance Inc.
Insurance, Contracts
Although state insurance law does not recognize an affirmative duty to inform an insurance company of facts relevant to the contract, state principles of equitable rescission compel a party with superior knowledge of facts relevant to the contract to disclose those facts in order for the contract to withstand challenge.
Capson Physicians Insurance Co v. MMIC Insurance Inc.
Eighth Circuit: Kim Shultz v. Bryan Buchanan
S1983, Fourth Amendment
Yelling and a thud sufficed for emergency aid exception to Fourth Amendment bar to entry of home.
Officer's having sent putative victim into the house does not bar the exception.
Qualified immunity on Taser shock, as the injury was de minimis.
Supplemental jurisdiction over state claims was appropriate.
Kim Shultz v. Bryan Buchanan
Eighth Circuit: Jose Perez-Garcia v. Loretta E. Lynch
Immigration
Sufficient evidence and due process where process is issued for compulsory removal on the belief that the alien did not comply with an order of voluntary removal, despite petitioner's claim that he had in fact had departed and then later returned with foreign documents to that effect.
Jose Perez-Garcia v. Loretta E. Lynch
Seventh Circuit: Thomas Wilson v. Warren County, Illinois
FHA, S1983, Discrimination
Deliberate photographing of property, conduct that triggered psychological hospitalization, would have been done regardless of the plaintiff's condition, and therefore cannot be the basis for a claim of discrimination under the FHA.
Personal and and municipal S1983 claims barred, as officials were unaware that the repossession was unlawful.
Substantive due process not implicated, as a verbal statement of the law was insufficient to create a state-sponsored danger of inaction during the subsequent repossession.
Thomas Wilson v. Warren County, Illinois
Sixth Circuit: James McKinney v. Bonita Hoffner
Habeas, AEDPA, Miranda
State Supreme Court's holdings -- that a facially equivocal statement was not interrogation and that deft's invocation of right to counsel followed shortly thereafter by an expressed willingness to talk was not a Miranda violation -- might have been made by a fair-minded jurist.
Dissent doesn't account for AEDPA default.
Dissent -- analysis of second utterance should be considered solely as waiver of expressed invocation.
James McKinney v. Bonita Hoffner
Sixth Circuit: Sheet Metal Employers v. Absolut Balancing
Labor, Arbitration
Federal law governs on issues of formation relevant to CBA agreements to arbitrate.
Sheet Metal Employers v. Absolut Balancing
Fifth Circuit: USA v. Quentin Jeffries
Denial of En Banc, Sentencing
Petitioner did not establish that sentence was passed under the residual clause of the Guidelines.
Circuit has held that the Guidelines residual clause is not implicated by the ACCA residual clause holding of the Supreme Court.
USA v. Quentin Jeffries
Fifth Circuit: Orlando Gutierrez v. Loretta Lynch
Immigration, Estoppel
For the purpose of determining status at the attainment of majority, an alien becomes a lawful permanent resident upon approval of application, not upon the date of an eventually approved application.
Given lack of affirmative misconduct, agency cannot be equitably estopped from arguing that the status was not timely obtained.
Orlando Gutierrez v. Loretta Lynch
Fifth Circuit: Helen Nicholson v. Securitas Security Svc USA
Employment, Discrimination
Right to control the work of an employee is not relevant under the federal age discrimination statute where there is an admission of employment.
Staffing services agreement to end employment at the request of the client company can create a genuine issue of material fact as to complicity in discrimination where the usual inquiries are not made.
Helen Nicholson v. Securitas Security Svc USA
Fifth Circuit: USA v. Benito Sanchez-Rodriguez
Sentencing, Immigration
For the purposes of immigration determinations, under modified categorical review, state statute prohibiting trafficking in stolen goods is not necessarily a crime of theft
USA v. Benito Sanchez-Rodriguez
Fifth Circuit: Karen Sudduth v. TX Hlth and Human Svc Cmsn, et al
Appellate Procedure, FRCP,
Given that courts are permitted to use electronic filing and that the local rules required it, appeal that generated notice and receipt a day late is untimely, despite assertion of technical issues.
Karen Sudduth v. TX Hlth and Human Svc Cmsn, et al
Fifth Circuit: Jillian Johnson v. World Alliance Financial Corp.,
Contract, Tort
Agency regulations on reverse mortgages must be explicitly incorporated in the terms of the mortgage in order to be the basis for a borrower's claim.
No implicit guarantee in a reverse mortgage that the lender will subordinate all intervening liens.
No cause of action of fraudulent inducement where the intervening lien does not support foreclosure.
Jillian Johnson v. World Alliance Financial Corp.,
Second Circuit: United States v. Compton
Fourth Amendment, Terry Stops
Motorist's abrupt visitation of a vegetable stand at the point at which the border immigration checkpoint came into view and the driver and passenger's subsequent separate purchases of peppers provided sufficient reasonable suspicion for the stop.
Observation that items in back seat were covered with a blanket was sufficient reason for prolonging the stop.
United States v. Compton
First Circuit: Cornwell Entertainment, Inc. v. Anchin, Block & Anchin, LLP
FRCP, Statute of Limitations, Choice of Law, Fees, Legal Ethics
Motion for directed verdict arguing lack of fiduciary duty did not adequately preserve argument of qualified privilege related to statements to the government for post-trial motion for judgment notwithstanding the verdict.
Where the state law holds the statute of limitations to be three years for actions seeking damages and six years in an action seeking a remedy in equity, court did not abuse discretion in assigning a three year limit to an action seeking damages for a breach of fiduciary duty.
Doctrine of continuous representation equitably tolls the limit during the transactions at issue, not for the duration of the contractual relationship between the parties.
Reasonable minds could differ as to whether the negotiation for private airplane rental was damaged by the conduct.
Remand, as general verdict makes it impossible to discern theory of initial verdict.
Plaintiff's post-trial motion for fees under law of their state is precluded by the trial's choice of deft's substantive law.
Partner's lateraling to counsel's firm from prosecutor's office investigating parties to the case who was not timely screened does not require counsel to withdraw where the new partner had no actual knowledge of the investigation.
No abuse of discretion in unsealing post-trial testimony of jurors relating to process of verdict, as the public access interest outweighs the interest of confidential deliberations.
Cornwell Entertainment, Inc. v. Anchin, Block & Anchin, LLP
First Circuit: Paolino v. JF Realty, LLC
FRCP, Environmental, Fees
No abuse of discretion in court's refusal to allow revised late-filed expert testimony, as it was duplicative of other testimony, and the equitable reason for the delay had a procedural remedy.
Judgement was not against the weight of the evidence, as the only proof of pollution was from a mingled source and there are other remedial efforts in place to effect the purposes of the statute.
Award of fees under statute upheld, as suit was filed after defts had remedied the harm.
Paolino v. JF Realty, LLC
First Circuit: US v. Reed, III
Sentencing, ACCA
Two predicate offenses properly considered separately, despite the single plea agreement, as there was an intervening arrest.
Absent a showing that the offenses were part of a single event or spree, the predicates are properly considered separately.
US v. Reed, III
Ninth Circuit: ERIC MANN V. CHARLES RYAN
En Banc, Habeas, AEDPA, Ineffective Assistance
Denial of Habeas for Ineffective Assistance, as state court's findings on defense lawyer's choices might have been made by fair-minded jurists.
State intermediate appeal on the collateral challenge did not inappropriately consider whether it was more likely than not that the verdict/sentence had been affected rather than asking if the error resulted in a reasonable probability of a difference in the outcome. Court's statement that nothing would have changed can be read to imply the reasonable probability standard.
Claim that state applied unconstitutional nexus test for mitigation factors, although not raised here, does not establish that rulings on the initial collateral challenge considered the wrong set of relevant mitigating factors.
Lack of explicit statement that new mitigation was considered on state direct and collateral challenge doesn't mean that it wasn't considered.
State Habeas findings not unreasonable.
Concurrence/Dissent -- Causal nexus error infected ruling on initial collateral challenge. Intermediate appeal used preponderance standard. Error on de novo review of ineffective assistance in mitigation.
Concurrence/Dissent 2 -- De novo review, but no prejudice.
ERIC MANN V. CHARLES RYAN
Ninth Circuit: NATURAL RES. DEFENSE COUNCIL V. PENNY PRITZKER
Environment, Administrative
Agency determination of de minimis impact did not vitiate statutary requirement that rulemaking be of the least practicible adverse impact.
Data-poor areas are not excepted from the requirement by the best-information rule.
Speculative long-term measures do not meet burden of implementing the least-practicible-impact standard.
NATURAL RES. DEFENSE COUNCIL V. PENNY PRITZKER
Ninth Circuit: USA V. JESUS PIMENTEL-LOPEZ
Sentencing, Kozinski
Where special verdict form indicates an upward bound to the amount of drugs possessed, a court is precluded from a factual finding to the contrary in sentencing, despite the fact that the sentencing finding does not implicate a second statutory maximum.
Hearsay evidence insufficient to support leadership sentencing enhancement.
USA V. JESUS PIMENTEL-LOPEZ
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
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