Association's members' desire to observe the diversity of the river is sufficient injury for standing. Future deterioration is redressible.
A claim that omits to specifically challenge certain regulations can be read to challenge them, given the context, the motion to consolidate, and the discussion of issues; additionally, no prejudice.
Agency opinion arbitrarily disregarded the degree to which degraded baseline conditions imperiled existing species.
A perfunctory provision authorizing subsequent reconsideration if the fishing take exceeded 100% of a given species was an unlawfully vague trigger point.
Agency hard look didn't sufficiently consider present and cumulative harms.
https://www.cadc.uscourts.gov/internet/opinions.nsf/8CE28752AC62F25A852582C200528B2B/$file/16-1195.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
DC Circuit: John Croley v. Joint Committee on Judicial Administration
District Court has jurisdiction over claim alleging that DC Courts mismanaged tort recovery of plaintiff, since the claim sounds in tort and presents freestanding claims under the Federal Constitution; the claim doesn't amount to an attempt to revisit the earlier state court judgment, as the plaintiff prevailed in the DC action.
https://www.cadc.uscourts.gov/internet/opinions.nsf/20FB3AD02C5D887D852582C200529F33/$file/15-5080.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/20FB3AD02C5D887D852582C200529F33/$file/15-5080.pdf
DC Circuit: Sierra Club, et al v. EPA, et al
Agency finding that it was established that a certain emission was not a carcinogen was not based on substantial evidence, as the agency merely searched the literature for proof that it was carcinogenic.
Agency use without a safety margin of a "low confidence" metric beneath comparable state regulations presents an issue for trial.
Petitioners were not required to demonstrate that any given adjustment of the data was unreasonable; the agency needed to explain its rationale for the adjustments.
Agency discretion in setting pollution levels for each category can't be given to the manufacturer by defining several levels for each category; the statute requires the agency to set the levels.
Agency use of a synthetic area source to set the allowable levels for the category wasn't contrary to statute, as the source is within the category as defined.
As industry didn't sufficiently explain why some sources performed surprisingly well, agency's exclusion of some sources wasn't arbitrary or capricious.
Substantial evidence for agency finding that coming innovations will allow industry to meet standard without raw material substitutions.
Tile-making organization does not have sufficient Article III standing to intervene in judicial review of smokestack rulemaking absent some showing that its members will be harmed by the pending rule.
https://www.cadc.uscourts.gov/internet/opinions.nsf/B42E4D7405452F66852582C200525ACE/$file/15-1487.pdf
Agency use without a safety margin of a "low confidence" metric beneath comparable state regulations presents an issue for trial.
Petitioners were not required to demonstrate that any given adjustment of the data was unreasonable; the agency needed to explain its rationale for the adjustments.
Agency discretion in setting pollution levels for each category can't be given to the manufacturer by defining several levels for each category; the statute requires the agency to set the levels.
Agency use of a synthetic area source to set the allowable levels for the category wasn't contrary to statute, as the source is within the category as defined.
As industry didn't sufficiently explain why some sources performed surprisingly well, agency's exclusion of some sources wasn't arbitrary or capricious.
Substantial evidence for agency finding that coming innovations will allow industry to meet standard without raw material substitutions.
Tile-making organization does not have sufficient Article III standing to intervene in judicial review of smokestack rulemaking absent some showing that its members will be harmed by the pending rule.
https://www.cadc.uscourts.gov/internet/opinions.nsf/B42E4D7405452F66852582C200525ACE/$file/15-1487.pdf
Ninth Circuit: Tamplin v. Muniz
Petitioner's desire to represent himself was sufficiently unequivocal in rejecting all public defenders and stating that he couldn't afford private counsel. State Habeas denial grounded on the timeliness of the request for self representation was contrary to, or an unreasonable application of federal constitutional law, as there was a clear right to self-representation, since the request was made some weeks before trial. Appellate counsel provided ineffective assistance, as second pro-se request hadn't been included in the appellate record.
Dissent: "Weeks before trial" is too vague to say that no reasonable jurist could have denied the habeas. Brief appearance of private counsel presented timing problems and put into question the unequivocal nature of the request.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf
Dissent: "Weeks before trial" is too vague to say that no reasonable jurist could have denied the habeas. Brief appearance of private counsel presented timing problems and put into question the unequivocal nature of the request.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf
Ninth Circuit: Chuck Close v. Southeby's Inc.
Express preemption provision in the 1976 Act, together with the provisions on distributions and first sale, preempt state law requiring royalties to the original artist on subsequent sales. Statements of subsequent Congress as to the preemption implied by VARA can't be imputed to the earlier law. Earlier precedent establishing that the 1909 Act did not preempt these claims incorporated common-law notions of distribution and first sale, and is therefore still viable for those claims.
Substantive Due Process undercuts Takings argument, but ultimately a question for remand.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-56234.pdf
Substantive Due Process undercuts Takings argument, but ultimately a question for remand.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-56234.pdf
Eighth Circuit: United States v. Terance Morice Highbull
Police officer's question "Do you have the phone" was insufficient to establish that the private citizen was an agent of law enforcement when she searched the vehicle for the phone, as the search was not requested, and the citizen had sufficient private motive to look for the phone.
Eighth Circuit: Mike Winn v. Commissioner, Social Security
It was within the ALJ's discretion to accept specialist medical opinions rather than that of the longtime treating physician.
http://media.ca8.uscourts.gov/opndir/18/07/171987P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171987P.pdf
Eighth Circuit: United States v. Jeffrey Joseph Pendleton
Given circuit precedent, state Assault statute prohibiting causing the fear of illness or injury is a valid predicate violent crime.
http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf
Eighth Circuit: Sheldon Thompson v. Ray Singleton
Denial of qualified immunity upheld, as the characterization of the petitioner as confrontational was a contested fact for trial, and therefore couldn't be used to establish that there was no controlling precedent prohibiting the officer's tasing of the petitioner.
http://media.ca8.uscourts.gov/opndir/18/07/164080P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/164080P.pdf
Sixth Circuit: James Lossia, Jr. v. Flagstar Bancorp, Inc.
Checking account agreement's incorporation of the rules of the financial transfer system meant that it did not breach the agreement by processing the transactions in the order in which they were presented for payment, as opposed to the order in which the customer initiated them.
Automated imposition of a number of overdraft fees exceeding the agreement's limit did not breach the agreement, as there was a policy of manually correcting the overage on the next business day.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0133p-06.pdf
Automated imposition of a number of overdraft fees exceeding the agreement's limit did not breach the agreement, as there was a policy of manually correcting the overage on the next business day.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0133p-06.pdf
Fifth Circuit: Atchafalaya Basinkeeper, et al v. U.S. Army Corps
Agency's mitigation analysis was sufficient, as the project did not have a significant environmental impact. Use of external mitigation credits was sufficiently explained within the agency's decisionmaking process. Corps recitation of potential cumulative impacts sufficed to establish consideration of cumulative impact.
http://www.ca5.uscourts.gov/opinions/pub/18/18-30257-CV0.pdf
Fifth Circuit: In-N-Out Burger, Incorporated v. NLRB
As the company could not demonstrate that it was trying to create a theatrical reality in the fast-food restaurant, the prohibition on the wearing of advocacy buttons infringed the Act; ALJ's findings on the sturdiness and safety of the button designs was reasonable.
Argument that subsequent buttons might be less safe and fall into the hamburgers was waived, as it wasn't raised before the Board.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60241-CV0.pdf
Argument that subsequent buttons might be less safe and fall into the hamburgers was waived, as it wasn't raised before the Board.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60241-CV0.pdf
Fourth Circuit: Felicia Strothers v. City of Laurel, Maryland
Executive's statement that supervisor wanted to hire someone of a different race, combined with disparate treatment, suffices to establish a genuine issue of material fact as to whether the employee's subsequent complaint was motivated by perceived racial discrimination and therefore protected activity.
http://www.ca4.uscourts.gov/opinions/171237.P.pdf
http://www.ca4.uscourts.gov/opinions/171237.P.pdf
Eighth Circuit: United States v. Keidell Doyal
Prior panel decision partially affirming grounds of an earlier decision vacated by Supreme Court binds the present panel, and circuit precedent holds that under modified categorical review, the state statute is a valid predicate crime of violence. As the charging documents alleged attempt, the only provision of the statute that criminalizes attempt was the provision under which the deft was convicted.
http://media.ca8.uscourts.gov/opndir/18/07/171320P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171320P.pdf
Eighth Circuit: Scott H. Lansing v. Wells Fargo Bank, N.A.
As the claim based in a loan modification application arose within the pendency of the initial foreclosure action, it was available then as an affirmative defense, and is therefore now barred by res judicata. The present claim based on the loan application violated petitioner's contractual agreement not to judicially challenge the foreclosure action.
Eighth Circuit: Ken Ross, Jr. v. Special Administrative Board
Third party intervenors have Article III standing in an action centered on a consent decree where the intervenor claims that a likely improper enforcement of the consent decree will have adverse consequences for the funding of the schools that their children attend.
http://media.ca8.uscourts.gov/opndir/18/07/163437P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/163437P.pdf
Seventh Circuit: Alvaro Cortina-Chavez v. Jefferson B. Sessions III
Denial of request for sua sponte administrative review is unreviewable.
No abuse of discretion in denying motion to reconsider on the grounds that the petitioner neither alerted the agency to the specific basis for the appeal nor filed a brief within the required schedule, as both grounds operate as independent bases for the decision, and petitioner only appealed the first.
No abuse of discretion in referral to a single judge rather than a panel, since regulations specifically empower a single judge to dismiss on the grounds stated by the agency.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-2116:J:Rovner:aut:T:fnOp:N:2182163:S:0
No abuse of discretion in denying motion to reconsider on the grounds that the petitioner neither alerted the agency to the specific basis for the appeal nor filed a brief within the required schedule, as both grounds operate as independent bases for the decision, and petitioner only appealed the first.
No abuse of discretion in referral to a single judge rather than a panel, since regulations specifically empower a single judge to dismiss on the grounds stated by the agency.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-2116:J:Rovner:aut:T:fnOp:N:2182163:S:0
Sixth Circuit: In re Chenault
Fact of sentence to parole doesn't state a claim of sufficient hardship for student loan debt discharge in bankruptcy.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18b0010p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18b0010p-06.pdf
Sixth Circuit: United States v. Daniel Sexton
Sentencing bump for commission of crime while under sentence was appropriate by the terms of the guidelines, since deft was on summary probation in contemplation of dismissal following a nolo contendere plea.
Leadership sentencing increase appropriate where deft own corporations engaged in the activity and employs admins; existence of other leaders is immaterial.
Within guidelines sentence substantively reasonable.
Forfeiture appropriate to any assets obtained through the crime; there is no need for the deft to have actually received the assets. Tension with S.Ct.U.S. holding on a parallel statute, circuit split flagged.
No plain error in court's acceptance of charge-off methodology and costs in the PSR.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0132p-06.pdf
Leadership sentencing increase appropriate where deft own corporations engaged in the activity and employs admins; existence of other leaders is immaterial.
Within guidelines sentence substantively reasonable.
Forfeiture appropriate to any assets obtained through the crime; there is no need for the deft to have actually received the assets. Tension with S.Ct.U.S. holding on a parallel statute, circuit split flagged.
No plain error in court's acceptance of charge-off methodology and costs in the PSR.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0132p-06.pdf
Sixth Circuit: Jodi Hohman v. Maurice Eadie
By the terms of the statute, taxpayers have a cause of action for improper collection activities, but not for improper assessment activities.
Although the natural persons and small partnerships holding a cause of action under the statute resemble LLCs, LLCs are not within the plain terms of the statute, and do not have a right to file suit.
Discovery properly limited.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0131p-06.pdf
Although the natural persons and small partnerships holding a cause of action under the statute resemble LLCs, LLCs are not within the plain terms of the statute, and do not have a right to file suit.
Discovery properly limited.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0131p-06.pdf
Third Circuit: Clientron Corp v. Devon IT Inc
As there was no showing that the misconduct benefited the defendants personally, District Court was correct in not piercing the corporate veil on a theory of sham, as corporate formalities should be considered differently with respect to closely held or family corporations.
As the discovery sanction against one spouse, holding that a corporation held by a tenancy by the entirety was in fact an alter ego, created a split between federal substantive law for the discovery sanction and state substantive law for the co-tenant by the entirety, it was an abuse of discretion. Under state law, both who hold by a tenancy of the entirety are presumed to act for the benefit of the marriage.
http://www2.ca3.uscourts.gov/opinarch/163432p.pdf
As the discovery sanction against one spouse, holding that a corporation held by a tenancy by the entirety was in fact an alter ego, created a split between federal substantive law for the discovery sanction and state substantive law for the co-tenant by the entirety, it was an abuse of discretion. Under state law, both who hold by a tenancy of the entirety are presumed to act for the benefit of the marriage.
http://www2.ca3.uscourts.gov/opinarch/163432p.pdf
Third Circuit: Ahmed Bakran v. Secretary
As the statute vests the determination of status in the agency and such action is statutorily unreviewable, supporting criteria developed by the agency are also unreviewable, as they are merely interpretive aspects of the determination.
As the felony conviction of the alien's spouse and sponsor does not impede the marriage, but merely the right of the spouse to live in the US, the right to marry is not affected; further, the question of residency is much broader, and the limitation of the rights of the sponsor following a felony conviction is a reasonable one.
As the statute that attached new limitations to the rights of those already convicted was clearly intended to apply to past convictions and referenced post-enactment dangers, there is no violation of Ex Post Facto; waived anyway.
http://www2.ca3.uscourts.gov/opinarch/163440p.pdf
As the felony conviction of the alien's spouse and sponsor does not impede the marriage, but merely the right of the spouse to live in the US, the right to marry is not affected; further, the question of residency is much broader, and the limitation of the rights of the sponsor following a felony conviction is a reasonable one.
As the statute that attached new limitations to the rights of those already convicted was clearly intended to apply to past convictions and referenced post-enactment dangers, there is no violation of Ex Post Facto; waived anyway.
http://www2.ca3.uscourts.gov/opinarch/163440p.pdf
Blog's Anniversary
On this date in 2011, in a Starbucks in midtown Manhattan, history was made. Admittedly, it was a very, very small event in history, but history nonetheless.
https://manhattanbarrister.blogspot.com/2011_07_05_archive.html
https://manhattanbarrister.blogspot.com/2011_07_05_archive.html
Ninth Circuit: Fleshman v. Volkswagen AG
Statute grants absolute right of intervention only to citizens who are barred from filing their own suit to enforce the law due tot he government's attempt to enforce that specific law.
As the government filed suit under the law regulating the devices, citizen suits seeking to enforce clean air laws are not barred, and the potential plaintiffs have no absolute right to intervene.
The present request to intervene seeks relief that is distinct from the government's relief; absent Article III standing (which can't be manufactured by simply seeking absolute compliance with the Act), the potential intervenor does not have an intervention of right.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17060.pdf
As the government filed suit under the law regulating the devices, citizen suits seeking to enforce clean air laws are not barred, and the potential plaintiffs have no absolute right to intervene.
The present request to intervene seeks relief that is distinct from the government's relief; absent Article III standing (which can't be manufactured by simply seeking absolute compliance with the Act), the potential intervenor does not have an intervention of right.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17060.pdf
Ninth Circuit: Wheeler v. City of Santa Clara
A sufficiently expansive state law of survivorship and intestate succession can bar an adopted natural child from asserting a S1983 claim, as there is no absolute right of succession implied by the purposes of the act.
Claims under the ADA and the RA are remedial in nature, not punitive; the statute-borrowing provisions of civil rights law are therefore inapplicable; there is no precedent under federal common law for allowing an adopted natural child to state a claim.
Absent a showing of a true parental relationship, an adopted natural child with a close relationship cannot state a claim under a Fourteenth Amendment liberty interest.
Court properly denied leave to amend, given relevant state statute of limitations, as nature of present claim doesn't hold the door open for relation-back.
Concurrence: Adopted children can establish a 14A claim.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17375.pdf
Claims under the ADA and the RA are remedial in nature, not punitive; the statute-borrowing provisions of civil rights law are therefore inapplicable; there is no precedent under federal common law for allowing an adopted natural child to state a claim.
Absent a showing of a true parental relationship, an adopted natural child with a close relationship cannot state a claim under a Fourteenth Amendment liberty interest.
Court properly denied leave to amend, given relevant state statute of limitations, as nature of present claim doesn't hold the door open for relation-back.
Concurrence: Adopted children can establish a 14A claim.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17375.pdf
Seventh Circuit: Ricardo Sanchez v. Jefferson B. Sessions III
Board's statement of a legal standard of probability suffices to establish a violation of the Fifth Amendment when considering the right to counsel in deportation proceedings where the correct standard is that of reasonable possibility of a different outcome.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0
Seventh Circuit: Thomas Lovelace v. Todd McKenna
Court did not abuse its discretion in barring physician's record of statement that prison inmate asserted that the guards had beaten him, as it address the truth of the matter asserted, rather than the reason that treatment had been sought.
Witness' statement that he feared retribution from guards permissibly barred as more prejudicial than probative.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-1393:J:Kanne:aut:T:fnOp:N:2181083:S:0
Witness' statement that he feared retribution from guards permissibly barred as more prejudicial than probative.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-1393:J:Kanne:aut:T:fnOp:N:2181083:S:0
Seventh Circuit: Wisconsin Central Limited v. Tienergy, LLC
Unresolved third-party claims do not preclude an appeal of the final decision where the trial court has clearly signalled an intent to resolve any outstanding claims.
Federal law defining rail transport rates created an independent cause of action under the act.
Transporting company's lack of actual knowledge of manifest terms defining it as a consignee does not preclude statutory liability as a consignee where it is not in the business of transporting cargo and it retains all funds from the subsequent sale of the product.
No implicit scheme of contribution or agency existed that would shift the costs.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2343:J:Barrett:aut:T:fnOp:N:2181198:S:0
Federal law defining rail transport rates created an independent cause of action under the act.
Transporting company's lack of actual knowledge of manifest terms defining it as a consignee does not preclude statutory liability as a consignee where it is not in the business of transporting cargo and it retains all funds from the subsequent sale of the product.
No implicit scheme of contribution or agency existed that would shift the costs.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2343:J:Barrett:aut:T:fnOp:N:2181198:S:0
Fifth Circuit: USA v. Jesus Ledezma-Cepeda, et al
Court did not abuse its discretion in denying severance, as curative instruction sufficed to protect co-defendant from gruesome evidence against another defendant, despite mixture of questions at trial and the fact that his own attorney objected to some evidence against the other defendant.
http://www.ca5.uscourts.gov/opinions/pub/16/16-11731-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-11731-CR0.pdf
Fifth Circuit: US v. Simone Swenson
As the defense could have sought a continuance after last-minute disclosures, the putative bad faith and actual prejudice from prosecutorial discovery misconduct did not rise to the abhorrent level needed to justify dismissal with prejudice.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20131-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20131-CR0.pdf
Fifth Circuit: Firefighters' Retirement Sys, et al v. Consulting
Prior assertion that the court did not have personal jurisdiction over them does not judicially estop the deft from invoking the protection in the state statute, as the court ultimately did not accept the challenge to jurisdiction.
Where there is a clear prerequisite for suit in the state statute that can only be waived by written agreement of the parties, a federal court can enforce the prerequisite requirement despite state precedent to the contrary, as the question becomes one of procedure, not of substantive law.
Under state law, contra non valentum does not apply to peremption periods.
Waiver of the peremption period for fraud requires specific intent to deceive.
Under state law, filing of suit does not toll the peremptive period for the prerequisite accounting review.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30274-CV0.pdf
Where there is a clear prerequisite for suit in the state statute that can only be waived by written agreement of the parties, a federal court can enforce the prerequisite requirement despite state precedent to the contrary, as the question becomes one of procedure, not of substantive law.
Under state law, contra non valentum does not apply to peremption periods.
Waiver of the peremption period for fraud requires specific intent to deceive.
Under state law, filing of suit does not toll the peremptive period for the prerequisite accounting review.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30274-CV0.pdf
Second Circuit: American Civil Liberties Union v. Department of Justice
Prevailing party who can demonstrate a likelihood of harm from an incidental disclosure in the court's decision has standing to seek appellate review of that decision as an aggrieved party.
Where the challenged dictum is not necessary to the holding and the government party to the case can advance a reasonably debatable argument for its falsity, there is a substantial possibility of material harms to the government's interests from disclosure, and the fact is available in publicly available sources, the court may redact the statement from the opinion.
http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/doc/17-157_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/hilite/
Where the challenged dictum is not necessary to the holding and the government party to the case can advance a reasonably debatable argument for its falsity, there is a substantial possibility of material harms to the government's interests from disclosure, and the fact is available in publicly available sources, the court may redact the statement from the opinion.
http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/doc/17-157_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/hilite/
Federal Circuit: PPC Broadband v. Director
Given the commercial success of the product (however limited) the Board should revisit the question of the obviousness of the springy-washer-thing.
(Again, we don't know many things. We especially don't know Patent. Entertainment purposes only, as always.)
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1362.Opinion.7-3-2018.pdf
(Again, we don't know many things. We especially don't know Patent. Entertainment purposes only, as always.)
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1362.Opinion.7-3-2018.pdf
DC Circuit: EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro, S.A.
The domestic effects of the scheme were sufficient for jurisdiction under FISA, as damages were incurred before the foreign investors withdrew (which might have attenuated the causation), and the foreign locus of the investment vehicles used by the domestic investors does not preclude a finding of direct effects on the domestic investors.
https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C9FB5343E0C109852582BF005095DA/$file/17-7067-1738941.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C9FB5343E0C109852582BF005095DA/$file/17-7067-1738941.pdf
DC Circuit: Ho-Chunk, Inc. v. Jeff Sessions
Corporations incorporated under tribal law and wholly owned by the tribe are subject to the tobacco recordkeeping laws, as the reservations are within the states, and the act does not base its jurisdiction on a territorial determination.
Tribes and tribal instrumentalities are persons, given the Definitions Act.
DC Circuit: Republic of Argentina v. AWG Group Ltd
Arbitratrator on board of investment bank was not made evidentially partial to a party by the bank's substantial investments in it, as passive investing is distinct from an active business relationship, and the loans were an insignificant part of the bank's total portfolio.
Arbitrator's decisions on the merits were within the scope of the arbitration; finding not precluded by international conventions.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7B9299B6A47D2BBE852582BF005095A5/$file/16-7134-1738928.pdf
Arbitrator's decisions on the merits were within the scope of the arbitration; finding not precluded by international conventions.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7B9299B6A47D2BBE852582BF005095A5/$file/16-7134-1738928.pdf
DC Circuit: USA v. Franklin Torres
Sufficient circumstantial evidence from the photographs to establish that production of the photographs was a purposeful act.
Leading dispositve question to reticent victim was within the court's discretion.
Concur/dissent: The statute requires a severable, independent purpose of producing the photographs.
https://www.cadc.uscourts.gov/internet/opinions.nsf/17A4126212AF784D852582BF0050958A/$file/16-3078-1738916.pdf
Leading dispositve question to reticent victim was within the court's discretion.
Concur/dissent: The statute requires a severable, independent purpose of producing the photographs.
https://www.cadc.uscourts.gov/internet/opinions.nsf/17A4126212AF784D852582BF0050958A/$file/16-3078-1738916.pdf
DC Circuit: USA v. Carlos Aguiar
Insufficient prejudice from closing of voir dire to justify federal habeas.
Government's intent to increase the charges to a potential life sentence were clear and easily determined; a claim of ineffective assistance based on not advising the deft of this therefore justifies a hearing.
Partial dissent: no contemporaneous evidence that deft would have accepted the plea.
Tenth Circuit: Underwood v. Royal
No ineffective assistance in not presenting forensic evidence, as omission of gruesome details might have been a sound trial strategy.
Prosecutor's remarks in closing about condition of victim did not unduly prejudice the verdict.
Approved instructions did not prejudicially suggest restrictions on mitigating circumstances.
Admission of victim's parents sentencing recommendations cannot in itself rise to structural error, and was not an error in the aggregate; such muted, one-off pleas do not warrant the writ.
State appellate decision that the jury did not need to find beyond a reasonable doubt that aggravating circumstances outweighed mitigating ones was not contrary to or an unreasonable application of Supreme Court precedent.
https://www.ca10.uscourts.gov/opinions/16/16-6262.pdf
Prosecutor's remarks in closing about condition of victim did not unduly prejudice the verdict.
Approved instructions did not prejudicially suggest restrictions on mitigating circumstances.
Admission of victim's parents sentencing recommendations cannot in itself rise to structural error, and was not an error in the aggregate; such muted, one-off pleas do not warrant the writ.
State appellate decision that the jury did not need to find beyond a reasonable doubt that aggravating circumstances outweighed mitigating ones was not contrary to or an unreasonable application of Supreme Court precedent.
https://www.ca10.uscourts.gov/opinions/16/16-6262.pdf
Tenth Circuit: Pavatt v. Royal
Amended panel opinion after denial of en banc.
No prejudice from ineffective assistance claim based on admission of victim photos, as objection would have been useless under res judicata -- similar photos previously held admissible in another case.
Aggravating circumstance of victim suffering was imposed using an unconstitutionally broad standard for potential suffering, state habeas to contrary was an unreasonable application of the law.
Dissent:
Ineffective assistance claims generally procedurally barred, as state provided time to raise them
A reasonable finder of fact might have determined that victim suffered, regardless of how broad the potential application of the standard might be.
https://www.ca10.uscourts.gov/opinions/14/14-6117.pdf
No prejudice from ineffective assistance claim based on admission of victim photos, as objection would have been useless under res judicata -- similar photos previously held admissible in another case.
Aggravating circumstance of victim suffering was imposed using an unconstitutionally broad standard for potential suffering, state habeas to contrary was an unreasonable application of the law.
Dissent:
Ineffective assistance claims generally procedurally barred, as state provided time to raise them
A reasonable finder of fact might have determined that victim suffered, regardless of how broad the potential application of the standard might be.
https://www.ca10.uscourts.gov/opinions/14/14-6117.pdf
Ninth Circuit: US v. Sanchez-Gomez
Summary order dismissing action as moot.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/02/13-50561.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/02/13-50561.pdf
Eighth Circuit: Stephen McCormick v. Starion Financial
State judgments did not merge earlier secured claims; the provision for costs and fees in the precipitating liens therefore survived the reduction to the judgment, despite being barred under state law from inclusion in the judgments.
http://media.ca8.uscourts.gov/opndir/18/07/172192P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172192P.pdf
Eighth Circuit: Edward Hugler v. La Piedad Corporation
Court erred in holding corporation in contempt based on administrative subpoena to the corporation seeking business records of the shareholders, as the corporation had insufficient control over the records.
http://media.ca8.uscourts.gov/opndir/18/07/171845P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171845P.pdf
Eighth Circuit: Alexandra Sims v. State Farm
Erroneous denial of insurance claim does not suffice to establish bad faith under state law; court's holding that bad faith hadn't been established did not preclude that oppressiveness (which is also listed in the disjunctive) was also not found.
No abuse of discretion in refusal to admit evidence of insurer's systematic practices, since they were possibly confusing.
http://media.ca8.uscourts.gov/opndir/18/07/171333P.pdf
No abuse of discretion in refusal to admit evidence of insurer's systematic practices, since they were possibly confusing.
http://media.ca8.uscourts.gov/opndir/18/07/171333P.pdf
Eighth Circuit: NAACP v. Ferguson-Florissan
No per se clear error in using decennial census numbers as opposed to more recent ones.
A racial categorization does not lose minority status under the act upon attaining a bare majority in the district; the intensely local inquiry must take into account past discrimination and disenfranchisement.
Narrowness of win does not disqualify the win as proof against bloc voting.
Racially proportional representation is not per se proof that there is no actionable discrimination under the Act.
http://media.ca8.uscourts.gov/opndir/18/07/164511P.pdf
A racial categorization does not lose minority status under the act upon attaining a bare majority in the district; the intensely local inquiry must take into account past discrimination and disenfranchisement.
Narrowness of win does not disqualify the win as proof against bloc voting.
Racially proportional representation is not per se proof that there is no actionable discrimination under the Act.
http://media.ca8.uscourts.gov/opndir/18/07/164511P.pdf
Eighth Circuit: Gerald Moses v. Dassault Falcon Jet Corp
Firing was a discrete act that started the clock for administrative exhaustion with respect to any claims arising from the firing.
Medical evidence sufficed for dismissal of statutory disability claim.
Unpleasant and rude conduct did not present an issue for trial on a claim of actionable harassment.
Medical evidence precluded ADA reasonable accomodations claim.
Insufficient causation for retaliation claim.
http://media.ca8.uscourts.gov/opndir/18/07/164343P.pdf
Medical evidence sufficed for dismissal of statutory disability claim.
Unpleasant and rude conduct did not present an issue for trial on a claim of actionable harassment.
Medical evidence precluded ADA reasonable accomodations claim.
Insufficient causation for retaliation claim.
http://media.ca8.uscourts.gov/opndir/18/07/164343P.pdf
Seventh Circuit: Destiny Hoffman v. Susan Knoebel
Sheriff's department employees had no affirmative duty to repair systematic infractions of rights in state drug court; as their conduct was simply negligent, they were not liable for the harms under S1983.
Insufficient showing for municipal liability, since there were potentially remediatory policies in place.
Arrests with insufficient authority were an issue of state law that didn't rise to the level of a constitutional violation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2750:J:Wood:aut:T:fnOp:N:2180890:S:0
Insufficient showing for municipal liability, since there were potentially remediatory policies in place.
Arrests with insufficient authority were an issue of state law that didn't rise to the level of a constitutional violation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2750:J:Wood:aut:T:fnOp:N:2180890:S:0
Seventh Circuit: Anthony Robinson v. Alfred Perales
As plaintiff did not present claim that deft and corporate deft were linked and declined to assert strict liability of one for the other during deliberations, no error in jury finding liability for one and not the other.
Explicit provision for nominal damages did not impermissibly suggest that non-monetary damages were appropriate.
Racial epithet and disparate treatment suffices to present an issue for trial on hostile work environment.
Statement of opposing party wasn't barred as hearsay.
Triable question of retaliation given facts.
Concerted attempts to end the plaintiff's career were sufficient for the verdict.
Court did not abuse its discretion in comparing the discussion of amounts of award in plaintiff's closing with actual award in declining to award fees.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-02/C:16-3390:J:Rovner:aut:T:fnOp:N:2180150:S:0
Explicit provision for nominal damages did not impermissibly suggest that non-monetary damages were appropriate.
Racial epithet and disparate treatment suffices to present an issue for trial on hostile work environment.
Statement of opposing party wasn't barred as hearsay.
Triable question of retaliation given facts.
Concerted attempts to end the plaintiff's career were sufficient for the verdict.
Court did not abuse its discretion in comparing the discussion of amounts of award in plaintiff's closing with actual award in declining to award fees.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-02/C:16-3390:J:Rovner:aut:T:fnOp:N:2180150:S:0
Sixth Circuit: United States v. Dallas Maynard
As the state Assault Under Extreme Emotional Disturbance statute requires the intentional infliction of injury, it is categorically a predicate violent crime.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0130p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0130p-06.pdf
Fourth Circuit: US v. Chavez
No Brady violation in nondisclosure of prosecution witness immigration records, as not prejudicial, and the favorable immigration treatment was sufficiently raised during trial to discredit the testimony.
No Napue violation, as gov't didn't know of the misstatement in advance, and it was corrected on cross.
Scattered prosecutorial misconduct incidental.
No error on not instructing on the lesser included crimes, as a murder was committed, and the defts didn't have to actually physically participate in the murder to be found guilty of it.
Admission of evidence on uncharged murder not dispositive, and arguendo, harmless error.
Claiming lack of foreknowledge not enough to justify severance as an antagonistic defense.
Statute requiring second chair counsel in capital cases requires prompt request for replacement by the deft; court did not abuse its discretion in denying severance and continuance.
Sufficient evidence.
Historical cell site information admitted under the good faith exception.
No Eighth Amendment violation in life sentence for crime committed at 18 without specific findings from jury.
http://www.ca4.uscourts.gov/opinions/164499.P.pdf
No Napue violation, as gov't didn't know of the misstatement in advance, and it was corrected on cross.
Scattered prosecutorial misconduct incidental.
No error on not instructing on the lesser included crimes, as a murder was committed, and the defts didn't have to actually physically participate in the murder to be found guilty of it.
Admission of evidence on uncharged murder not dispositive, and arguendo, harmless error.
Claiming lack of foreknowledge not enough to justify severance as an antagonistic defense.
Statute requiring second chair counsel in capital cases requires prompt request for replacement by the deft; court did not abuse its discretion in denying severance and continuance.
Sufficient evidence.
Historical cell site information admitted under the good faith exception.
No Eighth Amendment violation in life sentence for crime committed at 18 without specific findings from jury.
http://www.ca4.uscourts.gov/opinions/164499.P.pdf
Second Circuit: United States v. Gasperini
No plain error from claimed unconstitutional vagueness of statute (CFAA), as the conduct here was squarely within the core prohibition.
As the statute (SCA) does not provide for the exclusion of evidence as a remedy, no abuse of discretion in allowing evidence from extraterritorial searches.
Mere gov't request to foreign agency is not enough to bring the subsequent extraterritorial search under the protections of the Fourth Amendment.
Internet archive screenshots properly admitted as business records, given testimony by staffers that they were created in the course of business.
http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/doc/17-2479_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/hilite/
As the statute (SCA) does not provide for the exclusion of evidence as a remedy, no abuse of discretion in allowing evidence from extraterritorial searches.
Mere gov't request to foreign agency is not enough to bring the subsequent extraterritorial search under the protections of the Fourth Amendment.
Internet archive screenshots properly admitted as business records, given testimony by staffers that they were created in the course of business.
http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/doc/17-2479_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/hilite/
First Circuit: MAZ Partners LP v. Shear
Under state law, a non-majority shareholder director can be said to hold a controlling interest in the corporation when he or she evinces actual control of the company; control of a class of shares with the power to block corporate actions, the power to appoint directors, and actual control of past transactions are among the indicia of control.
Outside of closely held corporations, shareholder ratification isn't a safe-harbor against a basic fairness inquiry, given the way that the statute is written.
As the intent of the statute is to reverse the common-law presumption of voidability for interested transactions, it does not legitimate shifting the burden to the plaintiff in cases of ratified transactions when the plaintiff is not seeking to void the deal.
Breach of fiduciary duty sounds in equity, so disgorgement is an appropriate remedy; the court did not abuse its discretion in allotting the windfall to the wronged party.
Declining curative instruction as to evidence admitted presents virtually insuperable bar to raising the claim on appeal.
Wilkes Booth given his cue at 16, Polonius pops up at 21.
http://media.ca1.uscourts.gov/pdf.opinions/17-1821P-01A.pdf
Outside of closely held corporations, shareholder ratification isn't a safe-harbor against a basic fairness inquiry, given the way that the statute is written.
As the intent of the statute is to reverse the common-law presumption of voidability for interested transactions, it does not legitimate shifting the burden to the plaintiff in cases of ratified transactions when the plaintiff is not seeking to void the deal.
Breach of fiduciary duty sounds in equity, so disgorgement is an appropriate remedy; the court did not abuse its discretion in allotting the windfall to the wronged party.
Declining curative instruction as to evidence admitted presents virtually insuperable bar to raising the claim on appeal.
Wilkes Booth given his cue at 16, Polonius pops up at 21.
http://media.ca1.uscourts.gov/pdf.opinions/17-1821P-01A.pdf
First Circuit: US v. Acosta-Joaquin
The deft's intent to represent the social security number as his and his conduct in providing the number, although associated with the correct name, sufficed for a fraudulent use of the social security number.
http://media.ca1.uscourts.gov/pdf.opinions/17-1379P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1379P-01A.pdf
Federal Circuit: Adidas v. Nike
Prudential remand to consider non-instituted grounds is appropriate when those grounds were raised in the petition.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1180.Motion_Panel_Order.7-2-2018.1.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1180.Motion_Panel_Order.7-2-2018.1.pdf
DC Circuit: Ashbourne v. Hansberry
As both the earlier administrative proceeding and the earlier Article III proceeding permitted joinder of the EEOC claim to the civil suit, Title VII claim rooted in the same nucleus of facts is barred under res judicata.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A7A90C4B0D21BC8A852582BB0050FB8F/$file/17-5136.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/A7A90C4B0D21BC8A852582BB0050FB8F/$file/17-5136.pdf
DC Circuit: St. Francis Medical Center v. Azar
Regulation prohibiting revisiting of predicate factual determinations beyond three years in agency reopening proceeding does not prohibit revisiting such factual determinations in statutory direct appeals to the Board.
https://www.cadc.uscourts.gov/internet/opinions.nsf/5B15C6CE526BEB92852582BB00512041/$file/17-5098.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/5B15C6CE526BEB92852582BB00512041/$file/17-5098.pdf
DC Circuit: Jennifer Campbell v. DC, et al
Motions during trial claiming that petitioner had suffered insufficient harm under the statutory tort did not preserve a claim that the theory of harm found by the finder of fact was in fact based in the events alleged in the claim rejected by the finder of fact.
Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf
Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf
DC Circuit: USA v. Gregory Sitzmann
Consideration of extraterritorial conduct did not violate the presumption against extraterritoriality, given the domestic elements of the conspiracy.
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf
Tenth Circuit: Barton v. Hunter
As petitioner is not in custody, denial of parental custody does not state a claim for Habeas relief under the statute.
https://www.ca10.uscourts.gov/opinions/18/18-5016.pdf
https://www.ca10.uscourts.gov/opinions/18/18-5016.pdf
Ninth Circuit: Pinkette Clothing v. Cosmetic Warriors
Although laches is not available against a copyright or patent claim within the term of the statute, the Lanham Act provides a five year period to equitably challenge a mark, after which a challenge is still available on other grounds. Laches, as an equitable defense, is therefore available as a defense within the initial five year term.
No error in finding that the claim was equitably barred, given showing that most analogous state statutes of limitations had expired.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/29/17-55325.pdf
No error in finding that the claim was equitably barred, given showing that most analogous state statutes of limitations had expired.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/29/17-55325.pdf
Eighth Circuit: US v. Kevin Morrisey
Plain error not to instruct jury that Possession, as a lesser included offense of Receipt, could not be proved with respect to the same items.
Improper venue claim waived by counsel at trial.
Shift in the theory of the offense that would have encompassed crimes outside of the court's jurisdiction did not constitute a constructive amendment of the indictment, as venue is not an essential element of the offense.
Plain error to admit spreadsheet with list of images with outside expert hearsay commmentary, but no prejudice.
No prejudice from statement in closing that implied that files could be received by when internally transferred.
http://media.ca8.uscourts.gov/opndir/18/06/172157P.pdf
Improper venue claim waived by counsel at trial.
Shift in the theory of the offense that would have encompassed crimes outside of the court's jurisdiction did not constitute a constructive amendment of the indictment, as venue is not an essential element of the offense.
Plain error to admit spreadsheet with list of images with outside expert hearsay commmentary, but no prejudice.
No prejudice from statement in closing that implied that files could be received by when internally transferred.
http://media.ca8.uscourts.gov/opndir/18/06/172157P.pdf
Eighth Circuit: Garcia-Mata v. Sessions
Board holding that contradicted Immigration Judge's findings of fact without claiming clear error was contrary to it's interpretation of its own jurisdiction and the principle that holdings must be stated clearly; citing the regulation that allows for different standards of review in different situations does not sufficiently establish the claim of clear error.
http://media.ca8.uscourts.gov/opndir/18/06/171682P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/171682P.pdf
Eighth Circuit: US v. Kwame Askia
Federal embezzlement statute is not a continuing offense; once the threshold has been reached, the offense is complete. For purpose of the stature of limitations, however, so long as the limit is reached within the relevant timeframe, the fact that the offense began earlier doe not bar the indictment.
No plain error in introduction of evidence of theft outside the statute of limitation's timeframe; no sixth amendment claim arising from pro se / standby.
Hearsay claim arising out of pretrial detention hearing moot. No 6A claim.
Sufficient evidence.
http://media.ca8.uscourts.gov/opndir/18/06/171515P.pdf
No plain error in introduction of evidence of theft outside the statute of limitation's timeframe; no sixth amendment claim arising from pro se / standby.
Hearsay claim arising out of pretrial detention hearing moot. No 6A claim.
Sufficient evidence.
http://media.ca8.uscourts.gov/opndir/18/06/171515P.pdf
Seventh Circuit: Isaac Capps v. Kevin Drake
Sua sponte referral of postjudgment motion to another court is within the inherent authority of the court.
Whatever the legal status of the fee agreement, error to deny fees under S1988 where petitioner's primary interest is the vindication of the claim and the award is not de minimis; the fact that the award was under the last settlement offer does not negate the basis for the award.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:17-1876:J:Kanne:aut:T:fnOp:N:2179169:S:0
Whatever the legal status of the fee agreement, error to deny fees under S1988 where petitioner's primary interest is the vindication of the claim and the award is not de minimis; the fact that the award was under the last settlement offer does not negate the basis for the award.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:17-1876:J:Kanne:aut:T:fnOp:N:2179169:S:0
Seventh Circuit: Chicago Joe's Tea Room, LLC v. Village of Broadview
Denial of equitable relief can suffice for interlocutory appeal despite pendent unresolved damages.
Sufficient standing for the owner where owner leases to a party who leases to another party for use barred by the action in question.
Claim arising from municipality's barring of the use is moot, as the lessee's planned use would always have violated governing law, so enforcement of the municipal regulation is not barred by the vested rights doctrine; an earlier finding of licit use does not bind under law of the case, as it is a subjective, discretionary consideration of jurisdiction, and there is no indication that the earlier finding considered the relevant statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:16-1989:J:Hamilton:aut:T:fnOp:N:2178625:S:0
Sufficient standing for the owner where owner leases to a party who leases to another party for use barred by the action in question.
Claim arising from municipality's barring of the use is moot, as the lessee's planned use would always have violated governing law, so enforcement of the municipal regulation is not barred by the vested rights doctrine; an earlier finding of licit use does not bind under law of the case, as it is a subjective, discretionary consideration of jurisdiction, and there is no indication that the earlier finding considered the relevant statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:16-1989:J:Hamilton:aut:T:fnOp:N:2178625:S:0
Sixth Circuit: United States v. Marcus Fleming
Plain procedural error in sentencing where the court bases an upward variance on extrinsic evidence first revealed at sentencing, and the deft is not given a meaningful opportunity to dispute the veracity or relevance of that evidence.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0129p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0129p-06.pdf
Sixth Circuit: Rita McDaniel v. Upsher-Smith Laboratories, Inc.
Where the claim arises from a state product liability statute that looks to the federal guidelines as to the level of medical warnings to be provided, a claim under the tort based on the omission of the warning is impliedly preempted by federal law.
Concur/dissent (CJ) -- Violation of the federal statute is not a necessary element of the claim, so not preempted. Learned intermediary doctrine does not save defts.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0128p-06.pdf
Concur/dissent (CJ) -- Violation of the federal statute is not a necessary element of the claim, so not preempted. Learned intermediary doctrine does not save defts.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0128p-06.pdf
Fifth Circuit: Kymberli Gardner v. CLC of Pascagoula, L.L.C.
In a Title VII action for hostile work environment, when an employer becomes aware of harassing or violent conduct by a thord party, it has an obligation to attempt a remedy.
A wrongful termination action under the same statute presents an issue for trial where the protected activity is a refusal to deal with the harassing third party and there is a showing of direct evidence associating the refusal with the firing.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60072-CV0.pdf
A wrongful termination action under the same statute presents an issue for trial where the protected activity is a refusal to deal with the harassing third party and there is a showing of direct evidence associating the refusal with the firing.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60072-CV0.pdf
Fifth Circuit: Fisk Electric Company v. DQSI, L.L.C.
As the rights and liabilities arising from claims on a contract to construct a federal building are derivative of federal statutes, federal law governs a claim of fraudulent inducement.
As the federal common law of contracts mirrors the common law, the Restatement standard of de minimis burden to investigate fraudulent inducement, the claim presented a genuine issue of material fact where a party made reasonable attempts to gain the relevant documents through FOIA requests.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30091-CV0.pdf
As the federal common law of contracts mirrors the common law, the Restatement standard of de minimis burden to investigate fraudulent inducement, the claim presented a genuine issue of material fact where a party made reasonable attempts to gain the relevant documents through FOIA requests.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30091-CV0.pdf
Fifth Circuit: Fallon Family, L.P. v. Goodrich Petroleum Corp.
Under state law, where a continuing contractual scheme of payments for a mineral lease is not reflected in the property's recordation, a party to the contract cannot exercise the power of dissolution against the debtor-in-possession counterparty otherwise liable for the pre-petition payments, as the latter has acquired the status of bona fide puchaser for value.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20278-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20278-CV0.pdf
Hebdominal sabbatical
As CB has a conference presentation to prepare, dissertation work to do, and wants to spend more quality time on bar prep, there will likely be no batting practice here next week.
G-d willin' and the crick don't rise, I'll likely be back the following week, or some time after that.
Keep yer stick on the ice.
-- CB
G-d willin' and the crick don't rise, I'll likely be back the following week, or some time after that.
Keep yer stick on the ice.
-- CB
Eleventh Circuit: Cozzi v. Thomas
Denial of qualified immunity for arrest when tips merely established present location of suspect, and that he matched the description; as tattoos were not examined and a bag of 32 pills was insufficient indication that suspect had taken six during the robbery, arrest was not arguably within reasonable suspicion.
http://media.ca11.uscourts.gov/opinions/pub/files/201711011.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201711011.pdf
Eleventh Circuit: Dennis Haynes v. Hooters of America, LLC
Suit seeking relief that is parallel to an already-agreed settlement with a third party is not moot, as there is no proof in the record of present compliance, no guarantee of ongoing compliance, and the plaintiff wouldn't have standing to enforce the third-party agreement.
http://media.ca11.uscourts.gov/opinions/pub/files/201713170.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201713170.pdf
DC Circuit: USA v. Marlon Haight
No abuse of discretion in denial of delay in trial when gov't moves to include new holograph evidence two weeks before trial.
Harmless non-abuse-of-discretion to allow hearsay report of identification of deft, as declarant was available to testify at trial, and did testify at trial, and, on direct, didn't remember the identification.
No abuse of discretion in admission of deft's holograph writings in backpack, as sufficiently authenticated, and probative of deft's ownership of backpack and general knowledge of guns and drugs.
Ineffective assistance remanded for factual development.
District Assault with a Dangerous Weapons statute is a valid ACCA predicate, given its elements; a violent force can be indirect or made with merely reckless intent.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6DDDED8EB99FE1A5852582B4004FFDDF/$file/16-3123.pdf
Harmless non-abuse-of-discretion to allow hearsay report of identification of deft, as declarant was available to testify at trial, and did testify at trial, and, on direct, didn't remember the identification.
No abuse of discretion in admission of deft's holograph writings in backpack, as sufficiently authenticated, and probative of deft's ownership of backpack and general knowledge of guns and drugs.
Ineffective assistance remanded for factual development.
District Assault with a Dangerous Weapons statute is a valid ACCA predicate, given its elements; a violent force can be indirect or made with merely reckless intent.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6DDDED8EB99FE1A5852582B4004FFDDF/$file/16-3123.pdf
DC Circuit: Ameren Services Company, et al v. FERC
A regulated party has standing to challenge the regulation.
Question is ripe, as possible future displacement of a utility's approved projects due to the change in the cost allocation scheme's structure is conceded by all parties, and further factual development wouldn't speak to the question of law at issue.
Claim first made in Article III review that the agency impermissibly shifted the burden of proving reasonableness to the utility needed to be exhausted in the pertition for agency review.
On merits, Commission's ruling that already-approved projects needed to be revisited in light of the regionally interconnected projects was not arbitrary or capricious, as there are public policy benefits from that sort of thing, and proper accounting for the interregional projects requires integration of the costs of the already-approved projects.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6440A9564E36D841852582B4004FED20/$file/16-1150.pdf
Question is ripe, as possible future displacement of a utility's approved projects due to the change in the cost allocation scheme's structure is conceded by all parties, and further factual development wouldn't speak to the question of law at issue.
Claim first made in Article III review that the agency impermissibly shifted the burden of proving reasonableness to the utility needed to be exhausted in the pertition for agency review.
On merits, Commission's ruling that already-approved projects needed to be revisited in light of the regionally interconnected projects was not arbitrary or capricious, as there are public policy benefits from that sort of thing, and proper accounting for the interregional projects requires integration of the costs of the already-approved projects.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6440A9564E36D841852582B4004FED20/$file/16-1150.pdf
Federal Circuit: Starry Associates v. US
The statute authorizing an award of fees does not contemplate egregiously dilatory agency conduct as a basis for increasing the base rate of compensation; as the "special factor" basis is listed with a "cost of living" basis, the statute authorizes increases in the award where the base rate is insufficient due to the character of the representation. Because noscitur.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2148.Opinion.6-22-2018.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2148.Opinion.6-22-2018.pdf
Tenth Circuit: United States v. Vance
If the traffic stop on a theory of presenting a hazard to others was due to a mistake of law, it was a reasonable mistake of law, given the state's law about changing lanes.
As an element of the lane-changing law is the driver's omission of checking to see if the lane is clear, the police had reasonable cause for the stop in order to determine if the required visual check had been performed.
https://www.ca10.uscourts.gov/opinions/17/17-2008.pdf
As an element of the lane-changing law is the driver's omission of checking to see if the lane is clear, the police had reasonable cause for the stop in order to determine if the required visual check had been performed.
https://www.ca10.uscourts.gov/opinions/17/17-2008.pdf
Tenth Circuit: United States v. Pacheco-Donelson
No plain error in procedural reasonableness of supervised release condition barring all contact with gang members--including family members--as deft had the burden to prove close association.
No abuse of discretion in substantive reasonableness of same condition, given past extensive gang associations and the need to protect the public.
https://www.ca10.uscourts.gov/opinions/17/17-1180.pdf
No abuse of discretion in substantive reasonableness of same condition, given past extensive gang associations and the need to protect the public.
https://www.ca10.uscourts.gov/opinions/17/17-1180.pdf
Ninth Circuit: Jeffrey Short v. Edmund G. Brown
No abuse of discretion in denial of injunction against voting-by-mail scheme, as there is no burden placed on the voters, and, under current precedent, a claim of vote dilution would have to allege a discriminatory allocation of votes, not the de minimis individual burden here.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/22/18-15775.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/22/18-15775.pdf
Ninth Circuit: Shame On You Productions, Inc. v. Elizabeth Banks
No abuse of discretion in awarding fees to deft in a copyright action, as the claim was denied after an extrinsic review of the scripts, and the plaintiff did not timely provide their script; recent circuit precedent emphasizing the reasonability of the litigating position does not compel the award to be revisited.
State breach of implied contract intermixed with question of infringement, court's non-apportionment of that portion was therefore justified.
No abuse of discretion in the reasonableness of the fees.
Motion for fees timely e-filed, but in the wrong category and then later filed in the correct category was properly considered, as the time limit isn't jurisdictional.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/21/16-55024.pdf
State breach of implied contract intermixed with question of infringement, court's non-apportionment of that portion was therefore justified.
No abuse of discretion in the reasonableness of the fees.
Motion for fees timely e-filed, but in the wrong category and then later filed in the correct category was properly considered, as the time limit isn't jurisdictional.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/21/16-55024.pdf
Eighth Circuit: Santos Rosales-Martinez v. Nick Ludwick
State court's re-imposition of limits on the confrontation of a witness during retrial after simply adopting the findings of the previous proceeding is not contrary to, or an unreasonable application of federal law on the subject.
http://media.ca8.uscourts.gov/opndir/18/06/171910P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/171910P.pdf
Eighth Circuit: Bobby Hargis v. John Koskinen
Owner of passthrough corporations must establish an actual outlay of resources to establish sufficient basis in the corporation to list the corporations losses on their taxes. Signing as a co-borrower a corporate loan does not establish a personal outlay.
[again, folks, this site doesn't contain advice of any kind.]
http://media.ca8.uscourts.gov/opndir/18/06/171694P.pdf
[again, folks, this site doesn't contain advice of any kind.]
http://media.ca8.uscourts.gov/opndir/18/06/171694P.pdf
Eighth Circuit: United States v. Gervais (Ken) Ngombwa
No ineffective assistance where attorney declines to investigate family relations, thinking there to be a substantial likelihood that unsavory details might be discovered.
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Eighth Circuit: Mario Ortiz v. Ferrellgas Partners
Where injunctive antitrust relief is sought, and the remedy parallels existing FTC consent orders, the complaint, to establish an injury, must contain sufficient factual content to support the rational inference that the nonmovant has violated the consent orders.
Indirect purchasers cannot seek disgorgement, given the risk of multiple and inconsistent proceedings.
Remanded to consider if state law claims are sufficient to retain jurisdiction.
http://media.ca8.uscourts.gov/opndir/18/06/164086P.pdf
Indirect purchasers cannot seek disgorgement, given the risk of multiple and inconsistent proceedings.
Remanded to consider if state law claims are sufficient to retain jurisdiction.
http://media.ca8.uscourts.gov/opndir/18/06/164086P.pdf
Seventh Circuit: USA v. Jose Maldonado
Sufficient evidence for conspiracy, as the distrustful arms-length relationship with the drug supplier was extensive, and occasionally worked on credit; a second connection between two dealers described as brotherly in fact speaks to the closeness of the conspirators.
Multiple conspiracies instruction proper, as there was no necessary hub to the group.
No error in denial of meeting-of-the-minds instruction, as distrust among the participants did not negate the business purpose of their association.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-1402:J:Bauer:aut:T:fnOp:N:2174265:S:0
Multiple conspiracies instruction proper, as there was no necessary hub to the group.
No error in denial of meeting-of-the-minds instruction, as distrust among the participants did not negate the business purpose of their association.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-1402:J:Bauer:aut:T:fnOp:N:2174265:S:0
Seventh Circuit: Brooks Goplin v. WeConnect, Incorporated
No clear error where the court reviews a website discussed in briefing and uses the content in coming to a decision, as the other party had to carry the burden, and the proof introduced was minimal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:18-1193:J:Barrett:aut:T:fnOp:N:2174452:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:18-1193:J:Barrett:aut:T:fnOp:N:2174452:S:0
Sixth Circuit: Filippo Leone v. BMI Refractory Servs., Inc.
Under state law, third party contractor has separate and distinct duty of care towards employees to avoid harmful acts when it is contracted to handle a pre-existing hazard.
Sixth Circuit: United States v. Clifton Satterwhite
As the statute requiring indictment within 30 days is followed by a provision mandating a speedy trial, and the latter clause establishes that the right in "this section" is waived if not asserted, that qualification can be imputed to the first clause.
An untimely indictment is therefore not a jurisdictional flaw, and a deft who waived all challenges to earlier proceedings is validly sentenced after receiving an indictment defective under the statute.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0118p-06.pdf
An untimely indictment is therefore not a jurisdictional flaw, and a deft who waived all challenges to earlier proceedings is validly sentenced after receiving an indictment defective under the statute.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0118p-06.pdf
Sixth Circuit: United States v. Frank Susany, Jr.
Error for sentencing court not to consider reduction due to the fact that the conspiracy hadn't gotten very far along, but since the error entitled the deft to a greater reduction for acceptance of responsibility and the court subsequently varied downwards to a level beneath the correct guidelines range, there was no prejudice. Harmless error.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0117p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0117p-06.pdf
Sixth Circuit: United States v. Jamal Cooper
Wiretap Act does not require a different application for each authorization, but merely that each application conform to the Act.
No clear error in authorizing the tap where many of the alternatives were discounted prospectively.
No error in denial of Franks hearing where the challenged omissions on the affidavit might be construed from the contents of the affidavit.
Sealing and delivery of tapes four days after the end of the tap did not transgress the two-day limit, as the government needed to confirm that the deft was no longer using that line.
Where trial judge accepts govt contention at trial that the content of the recorded conversation establishes that the confidential informant consented to the taping, no clear error in the admission of the tapes.
Parolee confidential informers can validly consent to the taping of conversations.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0116p-06.pdf
No clear error in authorizing the tap where many of the alternatives were discounted prospectively.
No error in denial of Franks hearing where the challenged omissions on the affidavit might be construed from the contents of the affidavit.
Sealing and delivery of tapes four days after the end of the tap did not transgress the two-day limit, as the government needed to confirm that the deft was no longer using that line.
Where trial judge accepts govt contention at trial that the content of the recorded conversation establishes that the confidential informant consented to the taping, no clear error in the admission of the tapes.
Parolee confidential informers can validly consent to the taping of conversations.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0116p-06.pdf
Fifth Circuit: Robert Furlough v. Lowell Cage
Owner of debtor corporation who was joined to a pendent civil suit does not have standing to challenge engagement of special counsel as veil-piercing expert in the bankruptcy suit on the basis that the appointee is affiliated with one of the creditors and would act in a manner adverse to the estate.
Standing is determined at the time of filing -- an after-acquired interest in the estate does not convert the plaintiff's interest to that of a creditor for purposes of standing.
[caveat -- quick work. as always, entertainment purposes only.]
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV0.pdf
Standing is determined at the time of filing -- an after-acquired interest in the estate does not convert the plaintiff's interest to that of a creditor for purposes of standing.
[caveat -- quick work. as always, entertainment purposes only.]
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV0.pdf
Fifth Circuit: Lois Davis v. Fort Bend County
Plain error where the deft's sentence was twice the correct amount after the court counted a state conviction for a crime that is more broadly defined than the generic federal version used in sentencing.
http://www.ca5.uscourts.gov/opinions/pub/16/16-41378-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-41378-CR0.pdf
Fourth Circuit: Lee Malvo v. Randall Mathena
Given the substantive right of a juvenile not to be sentenced to a mandatory life without parole sentence articulated by the Supreme Court and made retroactive to cases on collateral review, petitioner's initial sentencing must be reviewed, as it was unclear at trial whether the judge could suspend part of the life sentence, and additionally, relief might be warranted outside of mandatory sentences in the strict sense.
As there was no finding of incorrigibility, the jury's vote for life without parole needs to be revisited. Additional sentences imposed under plea deal are not shielded from review by the appeals waiver, as collateral challenges of new rights and assertions of substantive constitutional violations weren't enforceably waived.
Interesting peroration.
http://www.ca4.uscourts.gov/opinions/176746.P.pdf
As there was no finding of incorrigibility, the jury's vote for life without parole needs to be revisited. Additional sentences imposed under plea deal are not shielded from review by the appeals waiver, as collateral challenges of new rights and assertions of substantive constitutional violations weren't enforceably waived.
Interesting peroration.
http://www.ca4.uscourts.gov/opinions/176746.P.pdf
Second Circuit: United States v. Olmeda
Where conduct relevant to the offense (here, grounds for a sentence enhancement) is the subject of a contemporaneous prosecution in state court, the federal sentencing court must consider the Guidelines instruction that the terms are to run concurrently; there is no requirement that the state prosecution be on the docket at the time of federal sentencing.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/doc/15-3449_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/doc/15-3449_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/hilite/
Second Circuit: Copeland v. Vance
As plaintiffs seek relief holding the law void for vagueness as to an entire category of folding knives, the challenge is construed as a facial challenge; a past enforcement against one of the plaintiffs provided sufficient notice of the proscribed activity, establishing that it is possible to enforce the law constitutionally -- therefore not facially unconstitutional. While it is possible to enforce the law in a discriminatory manner, and there might be evidence of this discrimination in past enforcement, the law itself does not unduly invite such discrimination.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/doc/17-474_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/doc/17-474_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/hilite/
Second Circuit: Villanueva v. United States of America
Given Supreme Court precedent relating to another statute, a state Assault statute is a valid violent crime predicate under modified categorical review.
Dissent: All the courts are doing it, but that doesn't make it right. Scotus specifically said it doesn't apply in this context; where the statute applies to non-forceful harm such as poison, it's an offensive touching, not a use of force.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/doc/16-2528_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/hilite/
Dissent: All the courts are doing it, but that doesn't make it right. Scotus specifically said it doesn't apply in this context; where the statute applies to non-forceful harm such as poison, it's an offensive touching, not a use of force.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/doc/16-2528_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/hilite/
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