Amended opinion.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-56880.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.
Ninth Circuit: White v. Ryan
State habeas denial was contrary to and an unreasonable application of the federal law governing ineffective assistance of counsel claims as to mitigation and aggravating factors, since it considered whether the specific court that had heard the case would have been prejudiced, rather than a neutral and objective court considered abstractly, and also did not weigh the cumulative effect of the mitigation that had been omitted.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-99011.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-99011.pdf
Ninth Circuit: US v. Joyce
Given the per se rule against horizontal price fixing, court did not abuse its discretion by barring evidence of minimal market effects.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/17-10269.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/17-10269.pdf
Eighth Circuit: United States v. Deuvontay Charles
Omission of the fact that the residence to be searched was only an occasional residence does not justify suppression of the evidence, as a neutral magistrate could have found probably cause to search an occasional residence. Requirement to register on a predatory offender registry is sufficient to trigger penalties for committing an offense while on an offender registry. Conciliation court document for county's suit against the mother of the victim is insufficient proof to establish within the court's discretion the restitution due the county.
http://media.ca8.uscourts.gov/opndir/18/07/172391P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172391P.pdf
Eighth Circuit: Carrie-Anne Smith v. Rockwood R-VI School District
Discrimination claims that in substance allege the denial of a free and appropriate public education trigger the exhaustion requirements of the Act; even if one party is thought not to have standing, the development of the administrative record will assist any subsequent judicial review.
http://media.ca8.uscourts.gov/opndir/18/07/172260P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172260P.pdf
Eighth Circuit: United States v. Tong Moua
As the trial court is best positioned to judge the facts, sufficient evidence for robbery conviction where a single witness who had earlier identified another person made an in-court identification, deft was seen in a vehicle that was later found near a robbery with incriminating writing-pad impressions, warrantless cell-phone location data placed the deft near the robberies, and items of clothing similar to those seen during the robbery were found at the apartment. Sentence substantively not unreasonable.
http://media.ca8.uscourts.gov/opndir/18/07/172046P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172046P.pdf
Seventh Circuit: Joshua Vasquez v. Kimberly Foxx
State's expansion of residence restrictions for registered offenders was not an ex post facto penalty, as the conduct regulated is post-enactment knowing residence. The law does not amount to a taking, since it is a regulation on the use of property, doesn't affect the market value of the property, and plaintiffs acquired the property after enactment. Procedural due process does not require individual hearings. The law has a rational basis.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1061:J:Sykes:aut:T:fnOp:N:2184695:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1061:J:Sykes:aut:T:fnOp:N:2184695:S:0
Seventh Circuit: Emma Cehovic-Dixneuf v. Lisa Wong
As the company retained administrative functions, the life insurance plan was within the statute, even though all premiums were paid by the employee; equitable reassignment of the beneficiary is therefore unavailable.
Where hearsay challenges are raised for the first time on a motion to reconsider summary judgment, the court may accept the challenged evidence as tending to point to some admissible method of proof, since the rules bar from the motion to reconsider any claims that might have been raised earlier on the merits.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1532:J:Hamilton:aut:T:fnOp:N:2184892:S:0
Where hearsay challenges are raised for the first time on a motion to reconsider summary judgment, the court may accept the challenged evidence as tending to point to some admissible method of proof, since the rules bar from the motion to reconsider any claims that might have been raised earlier on the merits.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1532:J:Hamilton:aut:T:fnOp:N:2184892:S:0
Seventh Circuit: Nicholas Knopick v. Jayco, Inc.
If courts do have a prudential power to discern real parties in interest, such a power would be inapposite here, as the plaintiff who used an LLC to purchase a vehicle, and the LLC assigned the right of action to the plaintiff after the commencement of suit.
Absent an equitable "lemon law" showing to the contrary, repairs on a vehicle owned by an LLC and therefore excluded from warrantied repairs did not effect an intentional relinquishment of a known right by the manufacturer that would allow a subsequent claim against the warranty by the LLC.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-2285:J:Hamilton:autcon:T:fnOp:N:2184815:S:0
Absent an equitable "lemon law" showing to the contrary, repairs on a vehicle owned by an LLC and therefore excluded from warrantied repairs did not effect an intentional relinquishment of a known right by the manufacturer that would allow a subsequent claim against the warranty by the LLC.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-2285:J:Hamilton:autcon:T:fnOp:N:2184815:S:0
Fifth Circuit: Raquel Hinojosa v. Petra Horn, et al
Since onetime-citizens who are abroad who have their passports revoked have a right under the statute to petition the Secretary of State for permission to present themselves at a port of entry, they do not have a right to challenge the revocation directly as an administrative action.
This petition process must be exhausted prior to seeking habeas relief; although it does not directly remedy the question of the passport, it allows the grounds for the revocation of the passport to be challenged.
Plaintiff at port of entry cannot seek relief under the statute by declaratory judgment, as statute limits that relief to those inside the US.
Plaintiff who claims to be a citizen, but is denied entry on the grounds that he or she is not a citizen, does not have standing to facially challenge a law requiring all citizens to carry a passport when entering or leaving the country, as it doesn't presently apply to them.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40077-CV0.pdf
This petition process must be exhausted prior to seeking habeas relief; although it does not directly remedy the question of the passport, it allows the grounds for the revocation of the passport to be challenged.
Plaintiff at port of entry cannot seek relief under the statute by declaratory judgment, as statute limits that relief to those inside the US.
Plaintiff who claims to be a citizen, but is denied entry on the grounds that he or she is not a citizen, does not have standing to facially challenge a law requiring all citizens to carry a passport when entering or leaving the country, as it doesn't presently apply to them.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40077-CV0.pdf
Fifth Circuit: Israel Escobar v. Lance Montee
Court does not have jurisdiction over cross-appeal in review of denial of qualified immunity, since deciding whether the police dog bites should be considered singly or as a group is not inextricably intertwined with the question of immunity for (non-dog) officers.
Qualified immunity, as it was objectively reasonable to allow the dog to continue biting the suspect until the suspect was fully handcuffed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10467-CV0.pdf
Qualified immunity, as it was objectively reasonable to allow the dog to continue biting the suspect until the suspect was fully handcuffed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10467-CV0.pdf
Fifth Circuit: Stemcor USA Incorporated v. Cia Siderurgica do Par
District court had subject matter jurisdiction under international convention to enforce the provisional arbitration award.
Although strict compliance with a state preemptive attachment statute would allow attachments of assets allocated by arbitration award on the understanding that they were subsequently to be converted to judgment, such a showing was not made here.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30984-CV1.pdf
Although strict compliance with a state preemptive attachment statute would allow attachments of assets allocated by arbitration award on the understanding that they were subsequently to be converted to judgment, such a showing was not made here.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30984-CV1.pdf
Fifth Circuit: William Erickson v. Lorie Davis, Director
State court judgment became final and the clock for federal habeas began to run after the period for challenging the state appellate decision in the Supreme Court ran out, not after the state judgment on remand became final.
Third Circuit: Nadine Pellegrino v. TSA
Since the Act distinguishes officers from employees, the purpose of the Act is to circumscribe and define federal tort liability, and subsequent caselaw, only criminal law enforcement officers are within the Act's waiver of sovereign immunity; airport security officers are not within this group, as they merely perform administrative searches.
Dissent: Act unambiguously includes investigative officers; airport security are officers of the United States empowered to conduct searches for violations of federal law; these searches go far beyond the level of an administrative search.
http://www2.ca3.uscourts.gov/opinarch/153047p.pdf
Dissent: Act unambiguously includes investigative officers; airport security are officers of the United States empowered to conduct searches for violations of federal law; these searches go far beyond the level of an administrative search.
http://www2.ca3.uscourts.gov/opinarch/153047p.pdf
First Circuit: Sindi v. El-Moslimany
As the list of defamatory statements were generally indicative of actual malice, there is no plain error in the finder of fact's determination that at least some of them were actionable defamation.
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
First Circuit: Tang v. Citizens Bank
Counsel's response of "okay, fair enough" after overrule of objection withdrew the objection, and there was sufficient evidence to establish that the jury might reasonably have rejected the "quid pro quo" theory of harassment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1365U-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1365U-01A.pdf
First Circuit: Acosta v. Local Union 26, Unite Here
Since an earlier draft of the bill provided the right to inspect and copy other agreements negotiated by the union, a statute giving members the right to inspect other agreements does not compel the union to permit note-taking while inspecting the agreements.
http://media.ca1.uscourts.gov/pdf.opinions/17-1666P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1666P-01A.pdf
First Circuit: Hajdusek v. US
Although made at the operational level, the Marine training program instructor's decision to work a recruit to the point of permanent physical injury was a discretionary balancing of policy goals, and therefore not within the waiver of sovereign immunity in the Act.
http://media.ca1.uscourts.gov/pdf.opinions/17-2137P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-2137P-01A.pdf
Federal Circuit: Polara Engineering v. Campbell Corp.
The pedestrian signals were in beta, the jury was instructed correctly, the infringement was sufficiently willful, but remand for damage in light of the beta trials issue.
Reminder: Of the many things that we strikingly don't know, Patent is among the most striking.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1974.Opinion.7-10-2018.pdf
Reminder: Of the many things that we strikingly don't know, Patent is among the most striking.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1974.Opinion.7-10-2018.pdf
DC Circuit: Alan Philipp v. Federal Republic of Germany
Intrastate expropriation of art rises to the level of genocidal act where the taking is in furtherance of a plan to deny a people sufficient resources to survive as a people, including wealth and articles of commerce; under the FSIA, the obligation to prove the contrary is with the state.
Insufficient nexus for the state defendant.
There is no statutory exhaustion requirement for expropriation in the FSIA; questions of international comity are best addressed by Congress.
As there is no direct conflict between the aims of state tort actions and the FSIA, the former are not preempted.
DC Circuit: Delaware Riverkeeper Network v. FERC
Implied right of action for riparian denizens under the statute to challenge power plant construction.
Clean air, water and environment is not property or liberty for which due process of law would be required before deprivation.
Funding structure of the commission does not, on its face, violate the constitution; review and tolling procedures are within the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/2FEE744A69F0676F852582C600521EA8/$file/17-5084-1739812.pdf
Clean air, water and environment is not property or liberty for which due process of law would be required before deprivation.
Funding structure of the commission does not, on its face, violate the constitution; review and tolling procedures are within the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/2FEE744A69F0676F852582C600521EA8/$file/17-5084-1739812.pdf
DC Circuit: Secretary of Labor v. Consolidation Coal Company
ALJ impermissibly incorporated likelihood-of-injury consideration, including many extrinsic factors, in deciding whether it was a sufficiently bad thing that the mine roof fell in.
DC Circuit: Delaware Department of Natural Resources v. EPA
State's comments in notice and comment period were not specifically contrary to its positions in the present litigation; it therefore has standing to raise the challenge.
Plain meaning of the statute presents insufficient ambiguity to permit a challenge arising from context.
Evidence of a state's extrinsic noncompliance is insufficient basis to hold that the agency's decision that the state's lack of enforcement actions indicated compliance with the plan was arbitrary or capricious.
As the act is an exercise in cooperative federalism, agency was within rights in accepting state's assertion of compliance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A1B19B3B5B48B063852582C600523288/$file/16-1230.pdf
Plain meaning of the statute presents insufficient ambiguity to permit a challenge arising from context.
Evidence of a state's extrinsic noncompliance is insufficient basis to hold that the agency's decision that the state's lack of enforcement actions indicated compliance with the plan was arbitrary or capricious.
As the act is an exercise in cooperative federalism, agency was within rights in accepting state's assertion of compliance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A1B19B3B5B48B063852582C600523288/$file/16-1230.pdf
DC Circuit: Veritas Health Services, Inc. v. NLRB
Given the initial delay, a three-month delay categorically does not backdate the certification year; Board did therefore not err in quashing subpoenas to look for evidence of delay.
Board did not abuse discretion in holding that the per se effects of unfair labor practices outweighed single comment to the contrary in the record when considering effect on certification election; insufficient showing that subpoena quash prevented discovery of facts relevant to the certification election.
No futility exception for motions to the Board for reconsideration.
Challenged remedies upheld.
No error in denial of permission to intervene, since intervenor had options under the act, and the limitations of the remedy don't rise to constitutional levels.
DC Circuit: James Roberts v. NTSB
The clock for a petition for fees under the statute starts with the final judgment, not with the subsequent final agency resolution.
https://www.cadc.uscourts.gov/internet/opinions.nsf/4D6C022174310506852582C600521ED6/$file/14-1022-1739804.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/4D6C022174310506852582C600521ED6/$file/14-1022-1739804.pdf
Eleventh Circuit: William B. Newton, et al v. Duke Energy Florida, LLC, et al
Domestic customers of a utility in a regulated monopoly are outside the zone of interests of the Dormant Commerce Clause where the local utility is not subject to competition with out-of-state utilities.
State laws promoting the construction of nuclear power plants are not preempted by federal legislation.
While request for leave to amend in response brief was permissible, the description of the amendment wasn't sufficient to allow the court to consider the motion.
http://media.ca11.uscourts.gov/opinions/pub/files/201710080.pdf
State laws promoting the construction of nuclear power plants are not preempted by federal legislation.
While request for leave to amend in response brief was permissible, the description of the amendment wasn't sufficient to allow the court to consider the motion.
http://media.ca11.uscourts.gov/opinions/pub/files/201710080.pdf
Tenth Circuit: Canyon Fuel Company v. Secretary of Labor
Although deference is due to the agency's resolution of an ambiguous provision in the statute by clarifying that conditions outside of the mine escape must be considered in evaluating its compliance with the regulation, the agency's decision was not supported by substantial evidence, since no formal evaluation of the two escape routes in light of these criteria was conducted.
https://www.ca10.uscourts.gov/opinions/17/17-9541.pdf
https://www.ca10.uscourts.gov/opinions/17/17-9541.pdf
Ninth Circuit: US v. Hernandez
Distribution of the image to the 17 year old minor depicted in it suffices to establish distribution for the purpose of the sentencing enhancement.
Sentencing statement by the judge that emphasized the defendant's decision to go to trial before imposing a 284 month sentence improperly infringed on deft's Sixth Amendment right to trial.
Dissent: This would be a procedural error, which deft doesn't raise, and court conflates.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf
Sentencing statement by the judge that emphasized the defendant's decision to go to trial before imposing a 284 month sentence improperly infringed on deft's Sixth Amendment right to trial.
Dissent: This would be a procedural error, which deft doesn't raise, and court conflates.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf
Ninth Circuit: Goudelock v. Sixty-01 Ass'n
Chapter 13 of the Act does not provide an exception to discharge for post-petition associational assessments.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/16-35384.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/16-35384.pdf
Eighth Circuit: Michael Holmes v. Bobby Lee Garrett
Evidence of plaintiff's prior convictions properly excluded in S1983 claim, as a "mere presence" defense does not open the door for an examination of the plaintiff's truthfulness in a S1983 suit; the question being tried is the conduct of the officer. Additionally, not probative of plaintiff's truthfulness.
Admission of prosecutor's testimony about deft's guilty pleas, if error, not prejudicial. Physician expert had appropriate foundation. Sufficient evidence for conspiracy, given pre-existing working relationship; sufficient evidence for state tort claims.
Conspiracy instruction did not lower the threshold; court did not err in adding a definition of "instigate" to the standard instruction; damages can be prospective under state law.
http://media.ca8.uscourts.gov/opndir/18/07/171309P.pdf
Admission of prosecutor's testimony about deft's guilty pleas, if error, not prejudicial. Physician expert had appropriate foundation. Sufficient evidence for conspiracy, given pre-existing working relationship; sufficient evidence for state tort claims.
Conspiracy instruction did not lower the threshold; court did not err in adding a definition of "instigate" to the standard instruction; damages can be prospective under state law.
http://media.ca8.uscourts.gov/opndir/18/07/171309P.pdf
Eighth Circuit: Chantel Courtney v. Commissioner, Social Security
An ALJ has no obligation to inquire into the basis of vocational expert's going beyond the terms of the job guide so long as the extra elements do not conflict with the terms of the job guide.
http://media.ca8.uscourts.gov/opndir/18/07/171777P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171777P.pdf
Seventh Circuit: Roy Mitchell, Jr. v. Kevin Kallas
There is a genuine issue for trial where a sufficiently controlling prison physician completely denies treatment for gender issues due to the short time remaining in sentence. Where parole conditions do not preclude such treatment, allegations that parole officers blocked treatment for gender issues presents an issue for trial. Where disparate theories of harm arising from both incarceration and post-release restrictions have a common factual basis, a single action is permissible under statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:16-3350:J:Wood:aut:T:fnOp:N:2184144:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:16-3350:J:Wood:aut:T:fnOp:N:2184144:S:0
Seventh Circuit: USA v. Ronald Norweathers
As the prosecution might legitimately have expected that deft would say that someone else sent the files, court's admission of uncharged emails was not unduly prejudicial; the emails were also not used to establish propensity, as the primary fact asserted was the identity of the emailer. If error, harmless, given other evidence.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-1311:J:Bauer:aut:T:fnOp:N:2184049:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-1311:J:Bauer:aut:T:fnOp:N:2184049:S:0
Seventh Circuit: Jon Giles v. Gabrielle Tobeck
The actions of a prison guard who mistakenly unlocked a section of cells and negligently relied on an inmate to voluntarily return to a cell unescorted did not rise to the level of deliberate indifference vis-a-vis the subsequent fisticuffs.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-1707:J:PerCuriam:aut:T:fnOp:N:2184277:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-1707:J:PerCuriam:aut:T:fnOp:N:2184277:S:0
Seventh Circuit: Theresa Mason-Funk v. City of Neenah
Qualified immunity for police officers who killed an innocent person during a hostage situation, as the only circuit precedent holding that officials have a duty of care in such a situation was subsequently vacated as moot.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-3380:J:Bauer:aut:T:fnOp:N:2184309:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-3380:J:Bauer:aut:T:fnOp:N:2184309:S:0
Sixth Circuit: Teresa Barry v. James O'Grady
Court has no jurisdiction over interlocutory appeal as to denial of qualified immunity when the petition argues disputed facts; any theory of appeal that holds that there is no issue for trial must construe any disputed facts in favor of the opposing party.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0136p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0136p-06.pdf
Sixth Circuit: Larry Slusser v. United States
Knowing and voluntary appeals waiver in plea deal forfeited the right to challenge a sentence that, given subsequent developments in the law, has become in excess of the statutory maximum sentence for the crime. Circuit precedent to the contrary was dicta.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0136p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0136p-06.pdf
Sixth Circuit: In Re: Estate of Jerry West v. U.S. Dep't of Veterans Affairs
As the state court lost jurisdiction over the matter when the district court took it up, common-law probate remand to the state court had no basis, as there was no dual jurisdiction to resolve. Also, state court did not have jurisdiction over claim, due to statutory administrative review procedures.
Dissent: Statute requires District Court to remand; District Court has no power to examine state forum's basis for jurisdiction.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0134p-06.pdf
Dissent: Statute requires District Court to remand; District Court has no power to examine state forum's basis for jurisdiction.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0134p-06.pdf
Fifth Circuit: Arthur Mitchell v. City of Naples, et al
To present a genuine issue of material fact for trial as to the qualified immunity of the defendants in a wage discrimination claim, the plaintiff must present valid comparators with substantially similar positions.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40737-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-40737-CV0.pdf
Second Circuit: Massey v. United States
Habeas petition is untimely when petitioner was sentenced under an earlier-abrogated provision of the law that established certain crimes as predicate convictions based on the use of force, but petitions for relief under a subsequent holding of the Supreme Court as to the residual clause of the same law, since only the latter announced a substantive change in the law.
http://www.ca2.uscourts.gov/decisions/isysquery/d97b88cf-c722-4c12-a6fc-67b8ddb371fe/1/doc/17-1676_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d97b88cf-c722-4c12-a6fc-67b8ddb371fe/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/d97b88cf-c722-4c12-a6fc-67b8ddb371fe/1/doc/17-1676_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d97b88cf-c722-4c12-a6fc-67b8ddb371fe/1/hilite/
Federal Circuit: Texas Optoelectronic v. Renesas Electronics
Although two of the three theories of trade secret misappropriation advanced at trial were legally erroneous, the evidence of the one remaining theory preponderated, and so the verdict can stand, but remanded to determine amount of equitable disgorgement under that theory. As disgorgement was not available as a remedy for IP infringement in 1791, there is no right to demand a jury trial on the question.
Many other small things, and time is short.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2121.Opinion.7-9-2018.pdf
Many other small things, and time is short.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2121.Opinion.7-9-2018.pdf
DC Circuit: Morley v. CIA
Court did not abuse its discretion in denying award of fees in FOIA action, as court might reasonably have found the agency's actions to be reasonable.
Dissent: Violation of a statute requiring agency to disclose otherwise available documents instead of referring the requester to the alternate source was, by it terms, unreasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/FAFBF71409B33B0E852582C50070FE19/$file/17-5114-1739739.pdf
Dissent: Violation of a statute requiring agency to disclose otherwise available documents instead of referring the requester to the alternate source was, by it terms, unreasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/FAFBF71409B33B0E852582C50070FE19/$file/17-5114-1739739.pdf
Tenth Circuit: Lamb v. Norwood
Absent case-specific medical findings, a prisoner's assertion of medical necessity of gender transition does not present a genuine issue of deliberate indifference for trial.
Petitioner did no have standing to challenge the preliminary investigative report or to supplement it, as its conclusions could be rebutted in the motions for and against summary judgment.
https://www.ca10.uscourts.gov/opinions/17/17-3171.pdf
Petitioner did no have standing to challenge the preliminary investigative report or to supplement it, as its conclusions could be rebutted in the motions for and against summary judgment.
https://www.ca10.uscourts.gov/opinions/17/17-3171.pdf
Tenth Circuit: United States v. Garcia-Herrera
After entry of judgment, a court has no jurisdiction over a subsequent motion by a deft to compel former counsel to produce files that would aid in his defense.
https://www.ca10.uscourts.gov/opinions/17/17-6209.pdf
https://www.ca10.uscourts.gov/opinions/17/17-6209.pdf
Tenth Circuit: Polukoff v. St. Mark's Hospital
Realtor's claim that a physician was billing the government for unnecessary cardiac surgeries states a claim where the medical opinion that a procedure is reasonable and necessary does not comport with the government's definitions of reasonability and necessity.
Such a claim survives elevated pleading under the rules, as a general state of mind can be alleged.
https://www.ca10.uscourts.gov/opinions/17/17-4014.pdf
Such a claim survives elevated pleading under the rules, as a general state of mind can be alleged.
https://www.ca10.uscourts.gov/opinions/17/17-4014.pdf
Tenth Circuit: Warnick v. Cooley
Absolute prosecutorial immunity shields prosecutors from a S1983 claim arising out of allegedly false charges, despite allegations of related unshielded conduct.
Balance of claims pleaded with insufficient particularity, leave to amend properly denied, as no draft claim was filed, no formal motion to amend was filed, and three years have passed since filing of claim.
https://www.ca10.uscourts.gov/opinions/17/17-4065.pdf
Balance of claims pleaded with insufficient particularity, leave to amend properly denied, as no draft claim was filed, no formal motion to amend was filed, and three years have passed since filing of claim.
https://www.ca10.uscourts.gov/opinions/17/17-4065.pdf
Ninth Circuit: Morris v. Ernst & Young LLP
Per curiam summary affirmance on remand.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/09/13-16599.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/09/13-16599.pdf
Seventh Circuit: Illinois Department of Revenue v. First Community Financial Bank
Bankruptcy court did not err in valuing the state revenue department's lien against post-petition bulk sales by the executor at zero, as the amount is, in practice, subject to negotiation, and a foreclosure would void the interest.
Seventh Circuit: Maurice Wallace v. John Baldwin
Solitary confinement for eleven years, combined with suicidal behavior, presents sufficient showing of imminent danger to allow a prisoner to advance a claim for relief without paying the fees. The "three strikes" assessed under the statute to the contrary are, in fact, only two, due to legal error.
Seventh Circuit: Scott Robinett v. City of Indianapolis
State indemnification statute's requirement that the challenged conduct be within the scope of employment is determined by the final finding of the court, not the allegations in the claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-2609:J:Sykes:aut:T:fnOp:N:2183558:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-2609:J:Sykes:aut:T:fnOp:N:2183558:S:0
Seventh Circuit: Anthony Kaminski v. Nancy Berryhill
Treating physician's opinions should have been given greater weight by the agency, since, among other things, the petitioner's statements to the contrary merely evinced his inability to perceive his own injury.
Remand with instructions to calculate award, as all other findings of fact have been made.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-3314:J:Hamilton:aut:T:fnOp:N:2183347:S:0
Remand with instructions to calculate award, as all other findings of fact have been made.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-3314:J:Hamilton:aut:T:fnOp:N:2183347:S:0
Third Circuit: Norman Walsh v. Defenders Inc
Given the deft's direct contractual relationship with a significant part of the Class, its presence in the litigation is sufficient to justify the an element of the CAFA local controversy exception, regardless of whether it will ultimately shoulder responsibility for any judgment.
http://www2.ca3.uscourts.gov/opinarch/182156p.pdf
http://www2.ca3.uscourts.gov/opinarch/182156p.pdf
Third Circuit: Brittan Holland v. Kelly Rosen
Plaintiff's opting out of the bail hearing does not deprive him of standing to challenge the bail law, since the challenge is not to the detention order, but to the lack of constitutionally sufficient procedure.
As the bail-bonding agency has only a hypothetical relationship with future customers, it does not have third-party standing to challenge the law on their behalf.
The Eighth Amendment does not guarantee a fair consideration of potential monetary bail, as that was not the practice at the time of adoption, and the Amendment does not mention monetary bail.
Cash bail and corporate surety are not protected by substantive due process, as they are neither sufficiently historically rooted nor inherent in the concept of ordered liberty. Statute's subordination of monetary bail to non-monetary restrictions is rationally related to a legitimate government purpose.
Where deft is able to ask the court for decreased restriction, sufficient procedural due process in a scheme where non-monetary pretrial appearance guarantees are prioritized over monetary bail.
http://www2.ca3.uscourts.gov/opinarch/173104p.pdf
As the bail-bonding agency has only a hypothetical relationship with future customers, it does not have third-party standing to challenge the law on their behalf.
The Eighth Amendment does not guarantee a fair consideration of potential monetary bail, as that was not the practice at the time of adoption, and the Amendment does not mention monetary bail.
Cash bail and corporate surety are not protected by substantive due process, as they are neither sufficiently historically rooted nor inherent in the concept of ordered liberty. Statute's subordination of monetary bail to non-monetary restrictions is rationally related to a legitimate government purpose.
Where deft is able to ask the court for decreased restriction, sufficient procedural due process in a scheme where non-monetary pretrial appearance guarantees are prioritized over monetary bail.
http://www2.ca3.uscourts.gov/opinarch/173104p.pdf
Second Circuit: Williams v. Annucci
Since the statute contemplates increased costs in compliance, simple assertion of the costs of compliance is an insufficiently particular compelling government interest to justify summary judgment. Government's refusal to accommodate inmate's sincerely held religious beliefs in the provision of meals has not been demonstrated to be the least restrictive means.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/1/doc/15-1018_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/1/doc/15-1018_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/1/hilite/
Second Circuit: United States v. Jimenez
Facial challenge is first analyzed as-applied in the context of a direct appeal of a criminal conviction.
Statute prohibiting the possession of a bullet by a dishonorably-discharged former soldier who was found guilty of felony-equivalent conduct by a military tribunal is substantially related to an important government interest, and would therefore not be barred by the Second Amendment.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/2/doc/17-287_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/2/hilite/
Statute prohibiting the possession of a bullet by a dishonorably-discharged former soldier who was found guilty of felony-equivalent conduct by a military tribunal is substantially related to an important government interest, and would therefore not be barred by the Second Amendment.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/2/doc/17-287_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/2/hilite/
Second Circuit: Allen v. Credit Suisse Secs. (USA) LLC
Bank foreign currency clearinghouses did not have sufficient control over Plan funds for a fiduciary duty or functional fiduciary duty to arise during arms length transactions that were allegedly fraudulent in their effects and structure.
No abuse of discretion in denial of leave to amend where the prospect of discovering contractual relationships was speculative.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/3/doc/16-3327_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/3/hilite/
No abuse of discretion in denial of leave to amend where the prospect of discovering contractual relationships was speculative.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/3/doc/16-3327_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/3/hilite/
Second Circuit: Petersen EnergÃa Inversora, S.A.U., et al. v. Argentine Republic, et al.
Foreign corporation's bylaws requiring a tender offer for remaining shares after expropriation by the state were an incidental mechanism to the expropriation, and not the mechanism of the statutory expropriation. Jurisdiction over claim arising from lack of subsequent tender offer is therefore proper under the direct effects exception to FISA.
Continuing government control of the corporation does not divest the court of subject matter jurisdiction, as the question of the enforcement provision of the tender offer requirement is commercial in nature, and has direct effects domestically.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/doc/16-3303_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/hilite/
Continuing government control of the corporation does not divest the court of subject matter jurisdiction, as the question of the enforcement provision of the tender offer requirement is commercial in nature, and has direct effects domestically.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/doc/16-3303_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/hilite/
Second Circuit: Conte v. Emmons
Deft's conduct insufficient as a matter of law to establish tortious interference with contracts, as comments to third parties were not specifically targeted, and any conduct incidental to a lawful purpose cannot be the basis of the claim.
As a matter of law, establishing subsequent breach without a showing of specific causation can't state a claim for tortious interference.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/doc/17-869_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/hilite/
As a matter of law, establishing subsequent breach without a showing of specific causation can't state a claim for tortious interference.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/doc/17-869_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/hilite/
Second Circuit: Kiobel v. Cravath, Swain & Moore, LLP.
District court had jurisdiction over subpoena for communications to US firm from foreign client, as jurisdiction arises from the present location of the documents, viz, midtown.
Court abused its discretion in issuing subpoena in furtherance of a foreign court proceeding for communications with a foreign client previously released under confidentiality order, as the documents would not be available in the foreign forum, and the party requesting them is a party to the foreign litigation. Disclosure would undermine confidence in the confidentiality of attorney-client communications, and there is no guarantee that the foreign forum will protect the confidentiality at the level of the existing agreement.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/doc/17-424_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/hilite/
Court abused its discretion in issuing subpoena in furtherance of a foreign court proceeding for communications with a foreign client previously released under confidentiality order, as the documents would not be available in the foreign forum, and the party requesting them is a party to the foreign litigation. Disclosure would undermine confidence in the confidentiality of attorney-client communications, and there is no guarantee that the foreign forum will protect the confidentiality at the level of the existing agreement.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/doc/17-424_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/hilite/
Second Circuit: USA v. Hernandez
Recklessly or negligently placing oneself in a situation where duress is probable negatives the defense.
Absent a request for special verdict, acquittal for conduct later found by a preponderance and used in sentencing does not imply a theory of the crime that amounts to a vindication of the conduct.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/doc/16-2765_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/hilite/
Absent a request for special verdict, acquittal for conduct later found by a preponderance and used in sentencing does not imply a theory of the crime that amounts to a vindication of the conduct.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/doc/16-2765_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/hilite/
Second Circuit: NG Bank N.V. v. M/V Maritime King
As the the equitable power to modify an existing maritime lien is essential to preventing the abuse of the lien, court did not abuse its discretion in modifying the interest rate on the lien.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/8/doc/16-3944_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/8/hilite/
First Circuit: City of Taunton v. EPA
When plaintiff claims extrinsic evidence was the basis for agency action, it is still inappropriate to include extrinsic evidence in the record for review, as the degree of support for the agency decision should be apparent from the record as it stands.
Agency did not act arbitrarily and capriciously in supplementing the administrative record following notice and comment beyond the initial published decision calculus and not subsequently reopening the comment process. Comment periods, by their nature, bring new concerns and raise new points.
Physical access to the relevant documents during the comment period sufficed; plaintiff had no right to receive them in response to a subsequent request.
Agency was justified in using tentative scientific conclusions in the absence of proof to the contrary; causation need not be absolute -- a reasonable possibility of harm is sufficient.
Absent specific proof to the contrary, deference to agency methodology and data selection.
http://media.ca1.uscourts.gov/pdf.opinions/16-2280P-01A.pdf
Agency did not act arbitrarily and capriciously in supplementing the administrative record following notice and comment beyond the initial published decision calculus and not subsequently reopening the comment process. Comment periods, by their nature, bring new concerns and raise new points.
Physical access to the relevant documents during the comment period sufficed; plaintiff had no right to receive them in response to a subsequent request.
Agency was justified in using tentative scientific conclusions in the absence of proof to the contrary; causation need not be absolute -- a reasonable possibility of harm is sufficient.
Absent specific proof to the contrary, deference to agency methodology and data selection.
http://media.ca1.uscourts.gov/pdf.opinions/16-2280P-01A.pdf
First Circuit: US v. Pagan-Romero
Provision and use of a dictionary in deliberations over contemporaneous objection and by a second judge was not an abuse of discretion, as the court polled the jurors afterwards as to whether it was used dispositively, and the relevant intent-level definition was not facially unhelpful to the deft.
http://media.ca1.uscourts.gov/pdf.opinions/16-1396P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/16-1396P-01A.pdf
DC Circuit: Pennsylvania State Corrections v. NLRB
Employer bargained to lawful impasse, since the award of back pay at the time of impasse met the regulatory requirements. Parties had sufficient notice of the issues for jurisdiction.
Dissent: Employer improperly conflated the back-pay issue with other issues, and since the timing of the impasse determines the back-pay, simple declaration of impasse at a time when the disbursement was likely to be lawful doesn't establish that the impasse was per se lawful, since the bargaining that produced it seemed to put the back-pay in peril. No jurisdiction over this claim, as the employer didn't raise it.
https://www.cadc.uscourts.gov/internet/opinions.nsf/76C77F8449B89631852582C200522637/$file/16-1328-1739390.pdf
Dissent: Employer improperly conflated the back-pay issue with other issues, and since the timing of the impasse determines the back-pay, simple declaration of impasse at a time when the disbursement was likely to be lawful doesn't establish that the impasse was per se lawful, since the bargaining that produced it seemed to put the back-pay in peril. No jurisdiction over this claim, as the employer didn't raise it.
https://www.cadc.uscourts.gov/internet/opinions.nsf/76C77F8449B89631852582C200522637/$file/16-1328-1739390.pdf
DC Circuit: John Taylor v. FAA
An agency rule defining a certain class of model aircraft does not contradict the safe-harbor from an earlier law, as it imposes no more restrictions on the devices than does the earlier law.
Law did not implicitly incorporate an agency regulatory structure that exempted model aircraft; the provisions of the statute empowering the agency to regulate unmanned craft, read in conjunction with the definition of model aircraft within the safe-harbor provision, provides sufficient authority.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E7D324AB37D6FC46852582C20052C10E/$file/16-1302.pdf
Law did not implicitly incorporate an agency regulatory structure that exempted model aircraft; the provisions of the statute empowering the agency to regulate unmanned craft, read in conjunction with the definition of model aircraft within the safe-harbor provision, provides sufficient authority.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E7D324AB37D6FC46852582C20052C10E/$file/16-1302.pdf
DC Circuit: American Rivers, et al v. FERC, et al
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/$file/16-1195.pdf
A claim that omits to specifically challenge certain regulations can be read to challenge them, given the context, the motion to consolidate, and the discussion of issues; additionally, no prejudice.
Agency opinion arbitrarily disregarded the degree to which degraded baseline conditions imperiled existing species.
A perfunctory provision authorizing subsequent reconsideration if the fishing take exceeded 100% of a given species was an unlawfully vague trigger point.
Agency hard look didn't sufficiently consider present and cumulative harms.
https://www.cadc.uscourts.gov/internet/opinions.nsf/8CE28752AC62F25A852582C200528B2B/$file/16-1195.pdf
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/
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