District court did not err in reducing fee award below the level requested by another party; as it was opposed, the court did not act sua sponte, and courts frequently award fees according to prevailing rates as established by extrinsic evidence.
No abuse in limiting fees for deposition, given the interest in reducing the crowds of lawyers there.
Remanded for the District court to consider whether the Relator is owed fees for the present action for fees.
http://www2.ca3.uscourts.gov/opinarch/172350p.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: Dutta v. State Farm
Plaintiff does not have a sufficiently concrete injury from the violation of the statute, since the declaration included in the Summary Judgment reply brief established that the violations were ultimately harmless, and plaintiff did not object or request a sur-reply.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-17216.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-17216.pdf
Ninth Circuit: Barnes v. Berryhill
Although the SSA ALJ correctly determined that no finding of disability was compelled, the possibility of non-disablility required subsequent findings of transferrable skills prior to a finding of ability to work.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-35815.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-35815.pdf
Ninth Circuit: Steven Morales v. USA
The government mapper's decision to omit the suspended cable from the map was sufficiently site-specific and informed by policy considerations to fall within the discretionary exception to the Act's waver of sovereign immunity; there is no exception to this exception in matters of public safety.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/17-15215.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/17-15215.pdf
Eighth Circuit: David Coyne v. Messerli & Kramer P.A.
An unsophisticated party states a claim under the Act by alleging that a letter sent to collect a debt, on its face, includes amounts that are not authorized by state law.
http://media.ca8.uscourts.gov/opndir/18/07/172826P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172826P.pdf
Eighth Circuit: Jonathan Scarborough v. Federated Mutual Insurance Co.
Per curiam vacate and remand for a case decided after the relevant statutory amendment but before the court decision expounding it.
http://media.ca8.uscourts.gov/opndir/18/07/172409P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172409P.pdf
Eighth Circuit: Bussen Quarries v. Alexander Acosta
ALJ did not have sufficient substantial evidence that the regulation was violated; the enforcer of the rule has the burden of proof, and while every violation need not be personally witnessed, a violation can't rest on speculation and conjecture where there are several possible scenarios.
http://media.ca8.uscourts.gov/opndir/18/07/172281P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172281P.pdf
Eighth Circuit: United States v. Allen Gaines
Under modified categorical review, state statute prohibiting harmful or offensive contact is a valid predicate crime of violence.
Second sentence procedurally reasonable, as speculative interpretations of the guidelines need not be addressed; also substantively reasonable.
http://media.ca8.uscourts.gov/opndir/18/07/171274P.pdf
Second sentence procedurally reasonable, as speculative interpretations of the guidelines need not be addressed; also substantively reasonable.
http://media.ca8.uscourts.gov/opndir/18/07/171274P.pdf
Seventh Circuit: Arjun Dhakal v. Jefferson Sessions III
Although there is no jurisdictional bar to general federal jurisdiction over an initial denial of asylum, the administrative record has not yet been sufficiently developed by the exhaustion of administrative remedies that would result from challenging a subsequent enforcement of the decision, so jurisdiction is not yet proper under the APA.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:17-3377:J:Ripple:aut:T:fnOp:N:2185998:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:17-3377:J:Ripple:aut:T:fnOp:N:2185998:S:0
Seventh Circuit: Karum Latin America S. de R.L. v. Lowe's Companies, Incorporated
Court did not abuse its discretion in striking expert testimony that had been disclosed as factual testimony, despite the fact that the sanction proved dispositive.
Other claims waived, harmless. Loss from financial instruments subsequent to the plaintiff's withdrawal was correctly categorized as a permissive counterclaim, as the losses did not yet exist at the time of filing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:18-1074:J:Bauer:aut:T:fnOp:N:2186752:S:0
Other claims waived, harmless. Loss from financial instruments subsequent to the plaintiff's withdrawal was correctly categorized as a permissive counterclaim, as the losses did not yet exist at the time of filing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:18-1074:J:Bauer:aut:T:fnOp:N:2186752:S:0
Sixth Circuit: Terry Martin v. Behr Dayton Thermal Prods.
As requiring a preliminary determination of predominance would unduly narrow the remedy, courts can determine specific issues for a class action without requiring that those issues must predominate within a putative individual action. Here, the issue classes predominate and are best addressed as a class. Circuit split flagged.
Any Seventh Amendment harms from the Special Master process are presently speculative.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0139p-06.pdf
Any Seventh Amendment harms from the Special Master process are presently speculative.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0139p-06.pdf
Sixth Circuit: American Tooling Center, Inc. v. Travelers Cas. & Surety Co
Funds were lost under the policy when they were transferred to the fraudulent interloper, despite the fact that they were owed to a third party.
The policy's definition of computer fraud includes funds transferred as a result of fraudulent emails; the scope is not limited to losses incurred by hacking.
Loss was sufficiently proximate to the computer fraud, as each review step before the transfer of funds was prompted by the initial fraudulent email.
As the exclusions only preclude payment for losses caused by entry of data into the computer system, the employees entry of the details of the fraudulent money transfer were the entry of instructions to the machine, which are definitionally excluded under the the policy.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0138p-06.pdf
The policy's definition of computer fraud includes funds transferred as a result of fraudulent emails; the scope is not limited to losses incurred by hacking.
Loss was sufficiently proximate to the computer fraud, as each review step before the transfer of funds was prompted by the initial fraudulent email.
As the exclusions only preclude payment for losses caused by entry of data into the computer system, the employees entry of the details of the fraudulent money transfer were the entry of instructions to the machine, which are definitionally excluded under the the policy.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0138p-06.pdf
Fourth Circuit: US v. Hinda Dhirane
No constitutional error in the FISA statutory process that substitutes review in the Executive Branch for a Franks hearing, as an unconditional adversarial process was appropriately modified in the interests of national security, and there was sufficient mitigation of the change.
Although it was unnecessary for the court to find that the defts were part of the organization to which they were sending funds, the finding amply supported the charge of providing material support.
For the sentence increase for funding a violent act, no nexus to a given violent act need be shown; the question is whether the deft believed that support would be used in an act of violence.
http://www.ca4.uscourts.gov/opinions/174205.P.pdf
Although it was unnecessary for the court to find that the defts were part of the organization to which they were sending funds, the finding amply supported the charge of providing material support.
For the sentence increase for funding a violent act, no nexus to a given violent act need be shown; the question is whether the deft believed that support would be used in an act of violence.
http://www.ca4.uscourts.gov/opinions/174205.P.pdf
Fourth Circuit: US v. Erick Gibbs
Within-guidelines sentence procedurally reasonable as it was explained and substantively reasonable as there is a basis for it.
Dissent: Nonfrivolous arguments for a downward variance were not addressed; error to conflate the degree to which the sentence is congruent with the guidelines with procedural reasonableness.
http://www.ca4.uscourts.gov/opinions/174037.P.pdf
Dissent: Nonfrivolous arguments for a downward variance were not addressed; error to conflate the degree to which the sentence is congruent with the guidelines with procedural reasonableness.
http://www.ca4.uscourts.gov/opinions/174037.P.pdf
First Circuit: Fustolo v. The Patriot Group LLC
Deft was not put sufficiently on notice by allegation of discovery misconduct and issues during the trial to permit a post-trial amendment of the claim to include a misconduct penalty that would result in a partial denial of discharge.
http://media.ca1.uscourts.gov/pdf.opinions/17-1984P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1984P-01A.pdf
First Circuit: US v. Powell
App developer's sending of screenshots to a private actor working as an agent of the gov't did not trigger the private search doctrine, as the second party's search was precisely coterminous with that of the app developers, and no new information could have been obtained in the second search.
[Seems to be an obvious typo in the First Circuit's URL for this on the public-facing page. This link is to the opinion list, which will likely be corrected by now. Search for case # 17-1683]
http://www.ca1.uscourts.gov/opinions
[Seems to be an obvious typo in the First Circuit's URL for this on the public-facing page. This link is to the opinion list, which will likely be corrected by now. Search for case # 17-1683]
http://www.ca1.uscourts.gov/opinions
First Circuit: Rosales Justo v. Sessions
Review of agency reversal of immigration judge for clear error on a question of fact is de novo when the question is essentially a legal one.
Agency erred in conflating ability to protect with willingness to protect; a country conditions report was sufficient to cast doubt on the former.
Agency erred in considering lack of reporting to the foreign police force without considering petitioner's motives and reasoning.
Sufficient proof in the record to establish that the threat was not simply an everyday law enforcement question.
http://media.ca1.uscourts.gov/pdf.opinions/17-1457P-01A.pdf
Agency erred in conflating ability to protect with willingness to protect; a country conditions report was sufficient to cast doubt on the former.
Agency erred in considering lack of reporting to the foreign police force without considering petitioner's motives and reasoning.
Sufficient proof in the record to establish that the threat was not simply an everyday law enforcement question.
http://media.ca1.uscourts.gov/pdf.opinions/17-1457P-01A.pdf
First Circuit: US v. Barbosa
Deft did not make sufficient showing for a Franks hearing, as misstatement of ages and sizes didn't impugn the narrative, and forcible entry isn't an element of the state's crime of armed home invasion; nothing in a more full investigation of the victims' delay in reporting or checking the victims for outstanding warrants would have put the terms of the affidavit in doubt.
Given circuit precedent, ACCA predicates are valid, including a conviction with a maximum sentence under the terms of the statute, but within the statute's range when prosecuted in state court.
http://media.ca1.uscourts.gov/pdf.opinions/17-1284P-01A.pdf
Given circuit precedent, ACCA predicates are valid, including a conviction with a maximum sentence under the terms of the statute, but within the statute's range when prosecuted in state court.
http://media.ca1.uscourts.gov/pdf.opinions/17-1284P-01A.pdf
Federal Circuit: Raytheon v. Indigo
When an employee who leaves employment where he oversaw processes involving trade secrets oversees a substantially similar process at the second company but denies that any proprietary information was used at the second company, a finder of fact can reasonably determine that the second company did not misappropriate trade secrets.
Testimony at trial established that the trade secret encompassed not just the generic process, but also the specific recipe for it.
Court might have reasonably found that party's decision to, in the end, opt for one state's statute over another was a strategic choice of law decision, and not an attempt to avoid an adverse decision on the merits, which would have mandated an award of fees.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-1945.Opinion.7-12-2018.pdf
Testimony at trial established that the trade secret encompassed not just the generic process, but also the specific recipe for it.
Court might have reasonably found that party's decision to, in the end, opt for one state's statute over another was a strategic choice of law decision, and not an attempt to avoid an adverse decision on the merits, which would have mandated an award of fees.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-1945.Opinion.7-12-2018.pdf
Ninth Circuit: Local 1500 Pension Fund v. Mayer
Although the statute provides for the invalidation of contracts made in contravention of the statute, it does not create a private right of action, as the statutory language focuses on the regulated party, a single invalidation would invalidate all other contracts, and the law specifically vests discretion to enforce in an agency, either on its own motion or on application.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/12/17-15435.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/12/17-15435.pdf
Eighth Circuit: Robin Kirkland Neal v. Daniel Ficcadenti
Given circuit precedent holding that tackling a fully compliant suspect by the legs was a violation of the Fourth Amendment's prohibition of unreasonable force during arrest, police should have been aware that tackling a fully compliant suspect by the arms would similarly offend; denial of qualified immunity upheld.
http://media.ca8.uscourts.gov/opndir/18/07/172633P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172633P.pdf
Eighth Circuit: United States v. Jesse James DeMarrias
Within-guidelines imposition of lifetime supervised release is not substantively unreasonable, given the court's finding of characterological and pervasive psychological disorders.
http://media.ca8.uscourts.gov/opndir/18/07/172331P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172331P.pdf
Eighth Circuit: Thomas J. Litterer v. Rushmore Loan Management
Given answer to question certified, namely: equitable modification under the state's rules of procedure is unavailable where the term is defined by statute and the modification would alter substantive rights, filing of a lis pendens outside the statutory period is insufficient to overwhelm the conclusive presumption of compliance.
http://media.ca8.uscourts.gov/opndir/18/07/163060P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/163060P.pdf
Seventh Circuit: Pension Trust Fund v. Kohl's Corporaton
Although the real estate plans of the corporation should have alerted management that the accounting error would occur, the fact that it occurred several times and that executives sold shares is not enough to state a case under heightened statutory pleading, as the management might have overlooked the consideration, and there was sufficient time between the stock sales and the revised revenue statements.
Although it was error for the court below to dismiss with prejudice, it was not an abuse of discretion sufficient to justify reversal, as, in the interval, the opposing party hasn't made a showing of how the claim might be amended.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-12/C:17-2697:J:Wood:aut:T:fnOp:N:2185294:S:0
Although it was error for the court below to dismiss with prejudice, it was not an abuse of discretion sufficient to justify reversal, as, in the interval, the opposing party hasn't made a showing of how the claim might be amended.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-12/C:17-2697:J:Wood:aut:T:fnOp:N:2185294:S:0
Sixth Circuit: Robert Hayes v. Comm'r of Soc. Sec.
As ledger entries indicate that attorney received a prejudgment notification of the administrative determination of the case, local rules as to the timeliness of application for fees apply, and there is no equitable basis for tolling the limitations period.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0137p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0137p-06.pdf
Fifth Circuit: Victor Revencu v. Jefferson Sessions, III
A reasonable factfinder might have determined that the alien petitioning to stay in the country was not persecuted in his home country due to his political beliefs, but rather that the police had mistreated him because they were attempting to use him as an informant against the political organization, believing him not to be actually committed to the cause.
A reasonable factfinder might have determined that persecution of a spouse for being Roma indicates likely future persecution of the petitioner himself.
http://www.ca5.uscourts.gov/opinions/pub/16/16-60851-CV0.pdf
A reasonable factfinder might have determined that persecution of a spouse for being Roma indicates likely future persecution of the petitioner himself.
http://www.ca5.uscourts.gov/opinions/pub/16/16-60851-CV0.pdf
Fifth Circuit: USA v. Jorge Robles-Avalos
Border Patrol agent had sufficient articulable grounds for suspicion to stop the vehicle, as it was an unusual vehicle for the road, midnight, a known rendezvous point for migrants, and, in the course of the surveillance, more passengers appeared in the car.
http://www.ca5.uscourts.gov/opinions/pub/17/17-51037-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-51037-CR0.pdf
Third Circuit: Seifullah Abdul-Salaam v. Secretary Pennsylvania Department of Corrections
As there was no indication that pursuing expert mitigation testimony in the penalty phase would cause conflicting narratives or a relitigation of the guilt phase, omitting to investigate the potential mitigation produced ineffective assistance of counsel; state appellate review to the contrary was unreasonable.
Where the state courts explicitly do not reach consideration of the prejudice arising from the ineffective assistance, federal habeas approaches the question de novo.
District court erred in determining that the mitigation would have been cumulative in light of the guilt-phase evidence; as the potential mitigation was qualitatively different, it is likely that at least one juror would have been swayed by a fundamentally different presentation in the penalty phase.
http://www2.ca3.uscourts.gov/opinarch/149001p.pdf
Where the state courts explicitly do not reach consideration of the prejudice arising from the ineffective assistance, federal habeas approaches the question de novo.
District court erred in determining that the mitigation would have been cumulative in light of the guilt-phase evidence; as the potential mitigation was qualitatively different, it is likely that at least one juror would have been swayed by a fundamentally different presentation in the penalty phase.
http://www2.ca3.uscourts.gov/opinarch/149001p.pdf
Second Circuit: United States v. Thompson
Minor trafficking statute is not overbroad, since any material assistance provided to victims by charitable organizations that might fall within the proscriptions of the act do not prohibit the expressive associations protected under the First Amendment, and prosecutions are unlikely for assistance provided by family members, who would, in any even, lack the needed mens rea for culpability.
A mens rea requirement as to the victim's age in one section of the statute does not necessarily imply the same degree of knowledge for conviction under a provision providing increased penalties for a victim of an even lower age.
Venue is proper in the district where the minor was induced and enticed, despite the fact that the film was created elsewhere.
http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/1/doc/16-2986_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/1/hilite/
A mens rea requirement as to the victim's age in one section of the statute does not necessarily imply the same degree of knowledge for conviction under a provision providing increased penalties for a victim of an even lower age.
Venue is proper in the district where the minor was induced and enticed, despite the fact that the film was created elsewhere.
http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/1/doc/16-2986_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/1/hilite/
Second Circuit: Leopard Marine & Trading, Ltd. v. Easy Street Ltd.
As jurisdiction over an in personam action under the Declaratory Judgment Act seeking a declaration of rights in a maritime lien is merely derivative of the jurisdiction over the lien, arrest or presence of the res is a matter of service, not jurisdictional, and jurisdiction can be gained by means of a forum selection clause in a contract for supplies between the operator of the vessel and the claimant on the lien.
As the present quasi in rem suit is an in personam action, abstention for comity in light of a foreign in rem action on the same res is not required.
Although the conduct of the enforcement of the lien is within the present forum's statute of limitations, which is generally held to be the common law rule, equitable considerations permitted the district court to extinguish the lien for laches -- due to the delay, the owner of the ship was unable to enforce a lien against the cargo carried by the operator who had incurred the fuel bill.
Dissent: Maritime liens are stricti juris, and arise from the custody of the res. The interpleader precedent cited by the majority relies on consent to federal jurisdiction, with the lien then found to be inextricably intertwined. The operator's consent to the forum selection provision is distinct from a general consent to federal jurisdiction, and jurisdiction cannot be manufactured by consent of the parties.
http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/2/doc/16-1356_complete_pdf.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/2/hilite/
As the present quasi in rem suit is an in personam action, abstention for comity in light of a foreign in rem action on the same res is not required.
Although the conduct of the enforcement of the lien is within the present forum's statute of limitations, which is generally held to be the common law rule, equitable considerations permitted the district court to extinguish the lien for laches -- due to the delay, the owner of the ship was unable to enforce a lien against the cargo carried by the operator who had incurred the fuel bill.
Dissent: Maritime liens are stricti juris, and arise from the custody of the res. The interpleader precedent cited by the majority relies on consent to federal jurisdiction, with the lien then found to be inextricably intertwined. The operator's consent to the forum selection provision is distinct from a general consent to federal jurisdiction, and jurisdiction cannot be manufactured by consent of the parties.
http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/2/doc/16-1356_complete_pdf.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/2/hilite/
Federal Circuit: Martin v. US
Prior to claiming a statutory private easement in public land along a public right of way, claimants must avail themselves of any available special use permit offered by the land manager; denial of such an application makes the case ripe for judicial review.
http://media.ca11.uscourts.gov/opinions/pub/files/201616544.op2.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201616544.op2.pdf
Eleventh Circuit: U.S. Commodity Futures Trading Commission v. Southern Trust Metals, Inc., et al.
Amended opinion following denial of rehearing.
http://media.ca11.uscourts.gov/opinions/pub/files/201616544.op2.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201616544.op2.pdf
Ninth Circuit: US v. Pepe
Post-conviction amendment of statute prohibiting certain conduct when travelling abroad to include conduct while residing abroad permits abrogation of circuit precedent that held the earlier form to include both travelling and residence. Lenity, Constitutional avoidance.
Dissent: It was a clarifying amendment in light of uniform judicial interpretation that both meanings were originally included.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/14-50095.pdf
Dissent: It was a clarifying amendment in light of uniform judicial interpretation that both meanings were originally included.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/14-50095.pdf
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
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