Defendants consent to inaccurate pre-sentencing report forfeited the argument, but did not waive the claim, and an undisputed error that affects the sentence rises to the level of plain error, requiring correction even when forfeited.
http://media.ca1.uscourts.gov/pdf.opinions/17-1702P-01A.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.
First Circuit: US v. Pinkham
Exception claiming that drug amount was miscalculated does not properly preserve a claim that the amount of drugs personally consumed by the deft should not have been included in the total.
Neither precedent nor lenity argues that the personal consumption of the deft should reduce the drug amount calculations for the conspiracy, as the deft's consumption is part of the scope of the conspiracy.
Given that the penalty for the prior conviction for driving without a licence is more similar to that for driving with a suspended licence than that for speeding, the present sentencing court did not plainly err in grouping it with offenses of the former category.
http://media.ca1.uscourts.gov/pdf.opinions/17-1664P-01A.pdf
Neither precedent nor lenity argues that the personal consumption of the deft should reduce the drug amount calculations for the conspiracy, as the deft's consumption is part of the scope of the conspiracy.
Given that the penalty for the prior conviction for driving without a licence is more similar to that for driving with a suspended licence than that for speeding, the present sentencing court did not plainly err in grouping it with offenses of the former category.
http://media.ca1.uscourts.gov/pdf.opinions/17-1664P-01A.pdf
First Circuit: US v. Arif
Trade Commission organic act was not an implied partial repeal of the wire fraud act, as the latter deals only with the wires and the former with advertising, and, further, there is no irreconcilable conflict between the two.
Deft's belief in the actual efficacy of the product does not negative the intentional specific misrepresentations in the advertising materials on the website.
Sentencing calculations that included revenue from sales of products about which no complaints had been received is not plainly erroneous, given lack of showing that the satisfied customers didn't purchase due to specific fraudulent misrepresentation. Additionally, no reasonable probability of prejudice, given downward departure from sentencing range.
Below-guidelines sentence not substantively unreasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1597P-01A.pdf
Deft's belief in the actual efficacy of the product does not negative the intentional specific misrepresentations in the advertising materials on the website.
Sentencing calculations that included revenue from sales of products about which no complaints had been received is not plainly erroneous, given lack of showing that the satisfied customers didn't purchase due to specific fraudulent misrepresentation. Additionally, no reasonable probability of prejudice, given downward departure from sentencing range.
Below-guidelines sentence not substantively unreasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1597P-01A.pdf
First Circuit: US v. Morales-De Jesus
No plain error in sentence increase for leadership, as the indictment listed over two dozen co-conspirators, and court might reasonably have found that deft led at least four of them. 228 Month sentence substantively reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1549P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1549P-01A.pdf
First Circuit: US v. Caballero-Vazquez
Sentence procedurally reasonable, since mitigation was properly considered, guilty plea prior to sentence was properly included as a prior conviction, and possession counts arising from the same nexus of facts can result in consecutive sentences.
75 Month sentence substantively reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1144P-01A.pdf
75 Month sentence substantively reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1144P-01A.pdf
First Circuit: US v. Rose
A decision that is cited in another opinion before being vacated as moot remains binding circuit precedent.
As recklessness could possibly suffice for a conviction requiring wantoness, the predicate violent felony is not in fact a predicate.
Challenging prejudice on appeal does not preserve a pro forma argument against cause.
http://media.ca1.uscourts.gov/pdf.opinions/17-1059P-01A.pdf
As recklessness could possibly suffice for a conviction requiring wantoness, the predicate violent felony is not in fact a predicate.
Challenging prejudice on appeal does not preserve a pro forma argument against cause.
http://media.ca1.uscourts.gov/pdf.opinions/17-1059P-01A.pdf
First Circuit: US v. Frates
Sentencing predicate convictions are valid, given circuit precedent.
When a non-retroactive amendment to the discretionary sentencing guidelines is adopted before a sentence becomes final on appeal, an appeals court has the prudential discretion to remand to consider the effect of the amendment, so long as the consideration would not be unduly complex and the sentencing court does not recalculate the guidelines range.
http://media.ca1.uscourts.gov/pdf.opinions/16-1933P-01A.pdf
When a non-retroactive amendment to the discretionary sentencing guidelines is adopted before a sentence becomes final on appeal, an appeals court has the prudential discretion to remand to consider the effect of the amendment, so long as the consideration would not be unduly complex and the sentencing court does not recalculate the guidelines range.
http://media.ca1.uscourts.gov/pdf.opinions/16-1933P-01A.pdf
Tenth Circuit: Clark v. Colbert
Firing of non-lethal rounds at a contained, psychotic fellow with a knife who refused to submit to arrest was not an unconstitutionally excessive use of force.
Appeal of state tort claim waived as only one of three independent grounds for denial was addressed.
Appeal of municipal liability under ADA waived for insufficient development of grounds for appeal.
Jail nurse's refusal to allow follow-up appointment with doctor, resulting in an improperly knit bone healing, did not rise to the level of conscious disregard of an excessive risk to health or safety.
https://www.ca10.uscourts.gov/opinions/17/17-7046.pdf
Appeal of state tort claim waived as only one of three independent grounds for denial was addressed.
Appeal of municipal liability under ADA waived for insufficient development of grounds for appeal.
Jail nurse's refusal to allow follow-up appointment with doctor, resulting in an improperly knit bone healing, did not rise to the level of conscious disregard of an excessive risk to health or safety.
https://www.ca10.uscourts.gov/opinions/17/17-7046.pdf
Ninth Circuit: Martinez De Ryan v. Sessions
Crimes of moral turpitude is not an unconstitutionally vague category for purposes of deportation review.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/15-70759.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/15-70759.pdf
Ninth Circuit: True Health Chiropractic v. McKesson Corp.
Court's reference to implicit ascertainability requirement in denial of class certification does not suffice to establish that the court imposed a heightened standard of administrative feasibility.
DC Circuit's invalidation of FCC rule in an action commenced to challenge another rule is binding inter-circuit precedent.
Prior consent to fax communications is a compulsory affirmative defense that can defeat predominance in class certification; a class composed of non-consenting recipients satisfies predominance requirements, and a class with varying levels of personal consent does not; remand to determine the character of predominance in a class composed of boilerplate consent claims.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/16-17123.pdf
DC Circuit's invalidation of FCC rule in an action commenced to challenge another rule is binding inter-circuit precedent.
Prior consent to fax communications is a compulsory affirmative defense that can defeat predominance in class certification; a class composed of non-consenting recipients satisfies predominance requirements, and a class with varying levels of personal consent does not; remand to determine the character of predominance in a class composed of boilerplate consent claims.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/16-17123.pdf
Ninth Circuit: Automotive Industries Pension Trust Fund v. Toshiba
Federal jurisdiction over the securities transaction arises from the purchaser's acceptance of irrevocable liability; the fact that a foreign entity might not ultimately be held liable for the events arising from the transaction does not preclude the court's jurisdiction over a purchase of a non-ownership beneficial interest in foreign stock by means of a domestic alternative trading system.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/16-56058.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/16-56058.pdf
Ninth Circuit: Shorter v. Baca
Plaintiff's separate challenge to a jury instruction requiring deference to jail's policies sufficiently preserved a more general challenge to the instruction.
Juries should be instructed to give deference to jail's policies only where the treatment is a necessary, justified, and proportional security-based policy.
Absent any security-based reason, deference to the policy should be denied as a matter of law.
Pretrial detainees are entitled to a grievance procedure upon changes in their classification that increases the severity of the conditions of confinement.
Deliberate indifference claims arising from medical treatment should be judged under a standard of objective deliberate indifference.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/16/16-56051.pdf
Juries should be instructed to give deference to jail's policies only where the treatment is a necessary, justified, and proportional security-based policy.
Absent any security-based reason, deference to the policy should be denied as a matter of law.
Pretrial detainees are entitled to a grievance procedure upon changes in their classification that increases the severity of the conditions of confinement.
Deliberate indifference claims arising from medical treatment should be judged under a standard of objective deliberate indifference.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/16/16-56051.pdf
Ninth Circuit: Coffman v. Queen of the Valley Medical Center
Given the substance of the issues discussed at the meetings following certification, there is substantial evidence for the Board's finding that the employer entered into unconditional bargaining during the informational meetings prior to challenging the certification; additionally, sufficient evidence for harms, remedy.
Employee's schedule changes following appearance of photo on pro-union social media site sufficed for a prima facie case for retaliation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/16/17-17413.pdf
Employee's schedule changes following appearance of photo on pro-union social media site sufficed for a prima facie case for retaliation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/16/17-17413.pdf
Ninth Circuit: US v Buenrostro
As a Presidential commutation is simply a mitigation of punishment, it does not set aside the initial judicial sentence, and therefore does not establish separate grounds for a habeas petition; a petition is therefore considered a second or successive challenge to the initial judicial sentence. Similarly, the commutation cannot shift the sentence from one based on a statutory minimum to one based on a gudelines range, making the sentence susceptible to a challenge based on a subsequent revision of the guidelines.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-10499.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-10499.pdf
Eighth Circuit: United States v. DNRB, Inc.
Sufficient evidence for conviction of corporation, as the relevant regulation requires that the workers "shall be protected" by the safety device, so mere provision of the device, followed by the supervisor's observation that it wasn't being used sufficed; the fall was a foreseeable and natural result.
Evidence of other safety omissions was properly admitted, as it helped to establish a knowing violation of the rules.
Sentence was procedurally correct, as there was no need to mechanically recite all of the factors, and a fine beyond the apparent means of the corporation might legitimately have been aimed at revealing any hidden funds.
http://media.ca8.uscourts.gov/opndir/18/07/173148P.pdf
Evidence of other safety omissions was properly admitted, as it helped to establish a knowing violation of the rules.
Sentence was procedurally correct, as there was no need to mechanically recite all of the factors, and a fine beyond the apparent means of the corporation might legitimately have been aimed at revealing any hidden funds.
http://media.ca8.uscourts.gov/opndir/18/07/173148P.pdf
Eighth Circuit: United States v. Michael Bordman
No procedural error in when mitigating circumstances in the defts past are described as "reported," rather than as established by court documents.
600-month sentence not substantively an abuse of discretion; restitution order is comparable to similar cases.
Release conditions barring possession of obscene materials or entering any business that sells them, or possessing certain electronic devices have previously been held sufficiently well-tailored to their purpose.
http://media.ca8.uscourts.gov/opndir/18/07/172395P.pdf
600-month sentence not substantively an abuse of discretion; restitution order is comparable to similar cases.
Release conditions barring possession of obscene materials or entering any business that sells them, or possessing certain electronic devices have previously been held sufficiently well-tailored to their purpose.
http://media.ca8.uscourts.gov/opndir/18/07/172395P.pdf
Eighth Circuit: Bottoms Farm Partnership v. Sonny Perdue
Agency's interpretation of the statute requiring surveying of the rice fields as a condition of insurability is valid under Chevron deference; there is no implicit requirement that the policy be good farming practice.
Under the terms of the insurance contract and the governing agency's construction of its own jurisdiction, an agency submitted a binding and dispositive interpretation of the relevant guideline during the arbitration process.
http://media.ca8.uscourts.gov/opndir/18/07/172164P.pdf
Under the terms of the insurance contract and the governing agency's construction of its own jurisdiction, an agency submitted a binding and dispositive interpretation of the relevant guideline during the arbitration process.
http://media.ca8.uscourts.gov/opndir/18/07/172164P.pdf
Eighth Circuit: Qwest Corporation v. City of Des Moines, Iowa
Locality's regulation of telecommunication carriers' cable rights of way is not preempted by the federal statute, since the local regulation does not bar any market participants from the local market.
Locality's fees are permitted under state law where they are actually incurred by the carrier's actions and a reasonable regulation of the market.
http://media.ca8.uscourts.gov/opndir/18/07/171257P.pdf
Locality's fees are permitted under state law where they are actually incurred by the carrier's actions and a reasonable regulation of the market.
http://media.ca8.uscourts.gov/opndir/18/07/171257P.pdf
Fifth Circuit: Dennis Kirchner, et al v. Deutsche Bank Natl Trust
Where one spouse does not sign the loan note, but does sign the deed of trust which contains similar terms of consent, the loan is held to be sufficiently voluntary against both spouses.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50736-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50736-CV0.pdf
Fifth Circuit: Shudde Fath, et al v. Texas Dept. of Transportation
Regulation requiring a reasonably unitary environmental review for road-building projects incorporates an implicit requirement of sufficient length for discrete segments in its requirement that the segments have distinct terminii; a separate review of segment length is unnecessary.
A cumulative environmental review is unnecessary when the construction segments are de minimis.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50683-CV0.pdf
A cumulative environmental review is unnecessary when the construction segments are de minimis.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50683-CV0.pdf
Fifth Circuit: John Stroy v. Department of Veterans Affairs
Mere proximity to a filing's cutoff date is not a sufficient basis for equitable relief; a reason for relief must be articulated.
Convening of a physician review panel is an insufficiently adverse employment action to present an issue for trial as to retaliation.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30373-CV0.pdf
Convening of a physician review panel is an insufficiently adverse employment action to present an issue for trial as to retaliation.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30373-CV0.pdf
Seventh Circuit: USA v. Dennis Franklin
An only-apparently arcane and metaphysical question certified to Wisconsin's highest state court asking whether a certain offense is divisible, i.e., whether the jury must unanimously agree on the section of the law that was violated. Bonus: thorough and courteous explanation of ACCA.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-17/C:16-1872:J:PerCuriam:aut:T:opGr:N:2188135:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-17/C:16-1872:J:PerCuriam:aut:T:opGr:N:2188135:S:0
Sixth Circuit: United States v. Ramess Nakhleh
The loud and unusual noises in a post office that are prohibited by law are determined by the usual decorum and operation of the post office, as opposed to what might be loud or unusual for the person; sufficient evidence that the deft was loud and unusual; no plain error in refusal to consider an audio recording where that recording only covers part of the incident in question.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0143p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0143p-06.pdf
Sixth Circuit: Tyganda Gilmore v. David Ebbert
A prisoner seeking habeas relief from an unlawful detainer must seek habeas against the jurisdiction holding the detainer against his or her future release, not the jurisdiction of present incarceration.
Sixth Circuit: United States v. Malik Farrad
Sufficient evidence for the finder of fact to have determined that the gentleman in the Facebook photos with the gun was the deft.
Social media photos are not self-authenticating business records, but there is no need for the identity of the page to be established -- the identity of the subject of the photo is a matter for the finder of fact, and are admissible so long as there is sufficient evidence that they are what they appear to be.
Shaky qualifications for expert testimony on Facebook photo-posting habits of suspects ultimately harmless.
Predicate offenses properly counted for sentencing where each is defined as happening on or about a certain day, despite being connected by a common conspiracy.
No plain error in counting convictions in absentia as predicate convictions.
Sentence increase due to predicate offenses didn't need to be separately charged.
Warrant not defective when it identifies the Facebook data as present in the jurisdiction.
Year and a half delay after service of warrant on FB didn't invalidate the warrant.
Execution of warrant outside of district not plain error, cf. 2703(A).
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0141p-06.pdf
Social media photos are not self-authenticating business records, but there is no need for the identity of the page to be established -- the identity of the subject of the photo is a matter for the finder of fact, and are admissible so long as there is sufficient evidence that they are what they appear to be.
Shaky qualifications for expert testimony on Facebook photo-posting habits of suspects ultimately harmless.
Predicate offenses properly counted for sentencing where each is defined as happening on or about a certain day, despite being connected by a common conspiracy.
No plain error in counting convictions in absentia as predicate convictions.
Sentence increase due to predicate offenses didn't need to be separately charged.
Warrant not defective when it identifies the Facebook data as present in the jurisdiction.
Year and a half delay after service of warrant on FB didn't invalidate the warrant.
Execution of warrant outside of district not plain error, cf. 2703(A).
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0141p-06.pdf
Sixth Circuit: Heidi Hostettler v. College of Wooster
There is an issue for trial when a plaintiff claiming disability or gender discrimination claims that she can perform all required work within a shorter amount of time; absent a showing to the contrary, the task is not necessarily defined by the number of hours required.
Employer can be estopped from claiming that the amount of leave taken exceeds that protected by the Act when the employee relies to her detriment on an assertion to the contrary, presenting an issue for trial.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0140p-06.pdf
Employer can be estopped from claiming that the amount of leave taken exceeds that protected by the Act when the employee relies to her detriment on an assertion to the contrary, presenting an issue for trial.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0140p-06.pdf
Fifth Circuit: Robert Furlough v. Lowell Cage
Amended opinion after motion for panel rehearing.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV1.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV1.pdf
Fifth Circuit: Patrick Collins, et al v. Steven Mnuchin, Secretary
Minority shareholders have standing to challenge the structure of the federal agency empowered to wind-down or place in conservatorship financial institutions when those voting shareholders lose economic rights due to the agency's policies.
The single-director structure of the agency, combined with the lack of a bipartisanship requirement and a funding procedure outside normal appropriations, unconstitutionally insulates the agency from Presidential control, as the President is unable to ensure the execution of the laws.
Most prudent remedy is the removal of the requirement that removal of the agency head only be for cause.
Dissent: Executive has a voice, Congress has oversight hearings.
Dissent (@judgewillett) Valid delegation of Congressional power; obligations legally imposed on a conservator are the best protection for the economic rights of the shareholders
http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV0.pdf
The single-director structure of the agency, combined with the lack of a bipartisanship requirement and a funding procedure outside normal appropriations, unconstitutionally insulates the agency from Presidential control, as the President is unable to ensure the execution of the laws.
Most prudent remedy is the removal of the requirement that removal of the agency head only be for cause.
Dissent: Executive has a voice, Congress has oversight hearings.
Dissent (@judgewillett) Valid delegation of Congressional power; obligations legally imposed on a conservator are the best protection for the economic rights of the shareholders
http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV0.pdf
Fifth Circuit: USA v. Christian Winchel
Appeals waiver did not bar appeal of restitution, as restitution in excess of proximately caused harms exceeds the statutory maximum punishment. Sentencing court must establish statutory proximate causation for losses before imposing restitution, else, plain error.
http://www.ca5.uscourts.gov/opinions/pub/16/16-11208-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-11208-CR0.pdf
Third Circuit: USA ex rel. Donald Palmer v. C&D Technologies Inc
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
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
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
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