Immigration authority can look through convictions for inchoate offenses to determine if the underlying charged conduct bars withholding of removal.
Statutory list of documents that establish conviction for a predicate offense is not an exhaustive list of the manner in which the predicate offense can be proved.
Administrative challenge that the petitioner's conviction was not established by the statutory list does not appropriately exhaust a claim that the predicate conviction does not justify a withholding of removal.
http://www.ca4.uscourts.gov/opinions/171213.P.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.
Fourth Circuit: US v. Ancient Coin Collectors Guild
Domestic law implementing treaty that barred, upon request, the sale of ancient coins belonging to other nations properly divided the purposes of the treaty; it was therefore not necessary to prove at trial that the coin had been discovered in the country of the requesting state party, as the implementing law had allowed for administrative designation of classes of coins.
Court did not abuse its authority by requiring that the deft's expert testimony be about the particular coins at issue, rather than old coins generally.
Court did not abuse authority in excluding testimony that the coins had been passed legally from a third state into the US immediately prior to sale.
Where the administrative regulations implementing the domestic law, apparently due to a drafting error, changed the scope of enforcement, a fair notice defense doesn't bar enforcement where all parties seemed to be aware of which items were prohibited under the law.
Discovery properly limited. Court did not abuse its discretion in striking part of the amended answer that seemed outside of the remand from the court of appeals.
http://www.ca4.uscourts.gov/opinions/171625.P.pdf
Court did not abuse its authority by requiring that the deft's expert testimony be about the particular coins at issue, rather than old coins generally.
Court did not abuse authority in excluding testimony that the coins had been passed legally from a third state into the US immediately prior to sale.
Where the administrative regulations implementing the domestic law, apparently due to a drafting error, changed the scope of enforcement, a fair notice defense doesn't bar enforcement where all parties seemed to be aware of which items were prohibited under the law.
Discovery properly limited. Court did not abuse its discretion in striking part of the amended answer that seemed outside of the remand from the court of appeals.
http://www.ca4.uscourts.gov/opinions/171625.P.pdf
Second Circuit: Lucia Lopez Catzin v. Thank You & Good Luck Corp.
Dismissing a long-running action sua sponte due to the fact that only supplemental jurisdiction remains requires, for reasons of basic fairness and reliable decisionmaking, that the parties receive notice and an opportunity to be heard.
Court's assertion that the federal claims had been pretextually asserted in order to manufacture jurisdiction required investigation and careful findings.
If the court has found that the supplemental jurisdiction arises from the same case or controversy, the statute requires a explicit selection of one or more of the enumerated statutory reasons for declining to exercise jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/doc/17-2497_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/hilite/
Court's assertion that the federal claims had been pretextually asserted in order to manufacture jurisdiction required investigation and careful findings.
If the court has found that the supplemental jurisdiction arises from the same case or controversy, the statute requires a explicit selection of one or more of the enumerated statutory reasons for declining to exercise jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/doc/17-2497_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/hilite/
Second Circuit: United States v. Baker
Sufficient evidence for conviction where an accomplice testifies to all elements, regardless of credibility issues. Finder of fact is best positioned to make these determinations.
Post-verdict juror's email does not provide a sufficient basis for questioning the jury, as it does not clearly establish any non-speculative misconduct; discussions among jurors were not necessarily deliberations, and a juror's belief "at first sight" that the deft was guilty is not a sufficiently plain demonstration of racial animus.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/doc/16-2895_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/hilite/
Post-verdict juror's email does not provide a sufficient basis for questioning the jury, as it does not clearly establish any non-speculative misconduct; discussions among jurors were not necessarily deliberations, and a juror's belief "at first sight" that the deft was guilty is not a sufficiently plain demonstration of racial animus.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/doc/16-2895_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/hilite/
First Circuit: Puerto Rico Elec. Power Auth. v. Ad Hoc Group-PREPA Bondholders
In a municipal bankruptcy action, the court can issue relief from the stay for cause.
The Code's grant of exclusive jurisdiction over property does not prevent the Title III court from issuing relief from the stay so that a creditor can appoint a receiver in another forum.
http://media.ca1.uscourts.gov/pdf.opinions/17-2079P-01A.pdf
The Code's grant of exclusive jurisdiction over property does not prevent the Title III court from issuing relief from the stay so that a creditor can appoint a receiver in another forum.
http://media.ca1.uscourts.gov/pdf.opinions/17-2079P-01A.pdf
First Circuit: Peaje Investments LLC v. PR Highways and Transportation
Where plaintiff is asserting a lien interest claimed to be a statutory lien, court can strike claims arising from a lien that was perfected as a secured interest, so long as the claims are revisited if the lien is held to be non-statutory.
The creditor's interest, which arises under a resolution of the public utility authority pursuant to its organic act, is not a statutory lien, as the claim does not originate in an act of the legislature.
http://media.ca1.uscourts.gov/pdf.opinions/17-2165P-01A.pdf
The creditor's interest, which arises under a resolution of the public utility authority pursuant to its organic act, is not a statutory lien, as the claim does not originate in an act of the legislature.
http://media.ca1.uscourts.gov/pdf.opinions/17-2165P-01A.pdf
End of Day
And... Last Post. This Starbucks is determined to close, and is strict (and loud) in its arrest. Halfway through the Eighth.
TK, possibly:
http://media.ca8.uscourts.gov/opndir/18/08/171931P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171925P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/161847P.pdf
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
Again, this site is just something that I do for batting practice. Don't rely, expect, or give credence.
-CB
TK, possibly:
http://media.ca8.uscourts.gov/opndir/18/08/171931P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171925P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/161847P.pdf
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
Again, this site is just something that I do for batting practice. Don't rely, expect, or give credence.
-CB
Eighth Circuit: Landon Michael v. Joshua Trevena
Denial of qualified immunity for warrantless arrest grabbing plaintiff's throat and breaking his arm with a baton, as the cause of the arrest was a nonviolent misdemeanor. No basis for arrest, since the police officer had already decided that the statement was false, and the false staement statute requires that the statement mislead the police.
Dissent: Arguable probable cause -- might have proved confusing.
http://media.ca8.uscourts.gov/opndir/18/08/171946P.pdf
Dissent: Arguable probable cause -- might have proved confusing.
http://media.ca8.uscourts.gov/opndir/18/08/171946P.pdf
Eighth Circuit: Daaron McAdoo v. Amy Martin
Statute's requirement of physical injury is a threshold requirement to bar frivolous claims, so causation does not have to be established between the injury and the evil of the statute -- plaintiff can recover for any harms traceable to unconstitutional deliberate indifference so long as there is an injury associated with the claim.
http://media.ca8.uscourts.gov/opndir/18/08/171952P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171952P.pdf
Eighth Circuit: Randy Kinder Excavating v. JA Manning Construction Co.
No clear error in holding that general contractor's threatened withholding of payment and interference was the first material breach of agreement with contractor; contractor's continued performance made the termination of the agreement breach, since the fact that the contractor didn't formally challenge a corps of engineers decisions didn't present a per se claim of nonperformance. Damages reasonable.
http://media.ca8.uscourts.gov/opndir/18/08/172886P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172886P.pdf
Sixth Circuit: Jamal Thomas v. George Stephenson
Ambiguity in state statute of Assault with Intent to Kill that seems to allow conviction for uncharged conduct, i.e., a potential future deadly assault rather than the charged non-deadly assault is, at most, an error of state law that does not rise to the level of a constitutional violation.
Dissent: Licit conviction for a crime that the deft did not commit rises to the level of extreme malfunction of the state criminal justice system.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0161p-06.pdf
Dissent: Licit conviction for a crime that the deft did not commit rises to the level of extreme malfunction of the state criminal justice system.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0161p-06.pdf
Sixth Circuit: Auburn Sales, Inc. v. Cypros Trading & Shipping, Inc.
State tortious interference claim requires the specific intent to interfere with the business relationship.
Even for a requirement or output contract, state statute of frauds requires a writing enforceable against the deft for any claim arising from the transaction.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0162p-06.pdf
Even for a requirement or output contract, state statute of frauds requires a writing enforceable against the deft for any claim arising from the transaction.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0162p-06.pdf
Sixth Circuit: EEOC v. Dolgencorp, LLC
Plaintiff gains the benefit of a longer statute of limitations on the federal claim by filing a state claim alleging discrimination, but not necessarily discrimination under the same theory as the federal claim.
Denial of request for a reasonable accommodation sufficed for discrimination -- plaintiff had no duty to request alternate accommodations.
Award of fees correct.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0163p-06.pdf
Denial of request for a reasonable accommodation sufficed for discrimination -- plaintiff had no duty to request alternate accommodations.
Award of fees correct.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0163p-06.pdf
Fifth Circuit: Hebbronville Lone Star Rentals, et al v. Sunbelt R
Arbitrators reformation of agreement for mutual mistake exceeded the bounds of its power, as the purchase agreement limited the scope of arbitration to calculation of specific sums, and the letter of engagement's reference to threshold levels did not empower the arbitrator to revisit the agreement that set the levels.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50613-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50613-CV0.pdf
Third Circuit: USA v. Dominique Johnson
No plain error in the fact that the jury didn't decide the question of whether the weapon was brandished, an element of the increased sentence, since no reasonable finder of fact could have decided otherwise.
On remand from the Supreme Court, deft can raise claims arising from cases decided during the pendency of the direct appeal.
State crime of unarmed bank robbery is categorically a predicate crime of violence.
Although jury was erroneously instructed that accomplice liability attached for brandishing a firearm if the deft was aware of it at the time that it happened, error is insufficiently plain to justify reversal.
Where a deft is not advised that the later counseled brief supersedes the earlier pro se filing, the court can equitably consider arguments raised in the earlier filing.
Although a predicate was double-counted in the indictment, insufficiently plain error, as other predicate counts resulted in convictions.
Other challenges -- 10th Amendment, Commerce clause - sufficient evidence.
http://www2.ca3.uscourts.gov/opinarch/111615p.pdf
On remand from the Supreme Court, deft can raise claims arising from cases decided during the pendency of the direct appeal.
State crime of unarmed bank robbery is categorically a predicate crime of violence.
Although jury was erroneously instructed that accomplice liability attached for brandishing a firearm if the deft was aware of it at the time that it happened, error is insufficiently plain to justify reversal.
Where a deft is not advised that the later counseled brief supersedes the earlier pro se filing, the court can equitably consider arguments raised in the earlier filing.
Although a predicate was double-counted in the indictment, insufficiently plain error, as other predicate counts resulted in convictions.
Other challenges -- 10th Amendment, Commerce clause - sufficient evidence.
http://www2.ca3.uscourts.gov/opinarch/111615p.pdf
Third Circuit: Reading Health System v. Bear Stearns Co Inc.
As the claim for arbitration as a matter of right arises from the rules and not from the broker-dealer contract, the forum selection clause in the broker-dealer contract does not prevent a court of a different forum from determining the threshold question of the right to arbitration.
Forum selection clause in the contract does not implicitly waive the right to arbitration, as absent an explicit waiver in the contract, the presumption for arbitration and the enacted regulatory scheme favor the right.
http://www2.ca3.uscourts.gov/opinarch/164234p.pdf
Forum selection clause in the contract does not implicitly waive the right to arbitration, as absent an explicit waiver in the contract, the presumption for arbitration and the enacted regulatory scheme favor the right.
http://www2.ca3.uscourts.gov/opinarch/164234p.pdf
Third Circuit: Thomas St. Pierre v. Retrieval Masters Creditors Bureau
Disclosure of account information through mailing envelope window is a sufficiently concrete and particular intangible harm for standing.
Although incurring highway tolls was a consensual transaction, the primary purpose was not personal or household benefit, as the benefit provided by tolls is the maintenance of the roads. The debt therefore does not qualify under the Act.
http://www2.ca3.uscourts.gov/opinarch/171731p.pdf
Although incurring highway tolls was a consensual transaction, the primary purpose was not personal or household benefit, as the benefit provided by tolls is the maintenance of the roads. The debt therefore does not qualify under the Act.
http://www2.ca3.uscourts.gov/opinarch/171731p.pdf
Third Circuit: James Tepper v. Amos Financial LLC
A debt collector is covered by the Act if their principal purpose is the collection of the debt; the fact that they are also the creditor does not preclude a finding that debt collection is the primary purpose of the organization.
http://www2.ca3.uscourts.gov/opinarch/172851p.pdf
http://www2.ca3.uscourts.gov/opinarch/172851p.pdf
End of day.
The day's saga ends halfway through the Fifth.
To paraphrase Toscanini: "Here, the Starbucks closed."
-CB
To paraphrase Toscanini: "Here, the Starbucks closed."
-CB
Fifth Circuit: City of Pontiac Gen Empl Retmn v. Vinit Asar, et al.
Statement admitted into evidence from the company's Audit Commission report was not impermissible group pleading, as it was admitted not for the statements asserted, but rather to establish what the committee members knew.
Statements by corporate leadership don't establish a strong inference of scienter, as the allegations do not set out the precise statements, and there is no indication that the fraud went from the top down, as opposed to from the bottom up.
Audit committee's description of historical accounting practices raises sufficiently strong inference of scienter as to accounting leaderships' role in improperly enhancing financials reporting.
Sarbanes-Oxley filings evince improprieties, but none so glaring that being unaware of them would amount to reckless behavior.
&c, &c.
Fifth Circuit: USA v. Ezell Brown, Jr.
Common-law rule holding that the place where the lender received he false statement establishes venue is inconsistent with the rule that the location of the crime is to be determined by the nature of the crime and the location of the acts.
Where the indictment alleges fraud in the supporting documents and the theory of the case becomes fraud in the application itself, there is no constructive amendment, since the offense as alleged included fraudulent verification of supporting documents at closing.
There is no requirement to establish that the fraudulent statement affected the lending decision; rather, it need only have a natural tendency to influence such a decision.
Reference in closing to truth-seeking role of the finder of fact did not dilute the required standard of proof.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40740-CR0.pdf
Fourth Circuit: Sierra Club v. National Park Service
As claim arises under 2005 amendment, state statute of limitations isn't borrowed; general four-year federal rule applies.
Agency cannot claim lack of time as a basis for holding that numerical take limits are impractical.
Vague and unenforceable take limits were arbitrary and capricious.
http://www.ca4.uscourts.gov/opinions/181082.P.pdf
Agency cannot claim lack of time as a basis for holding that numerical take limits are impractical.
Vague and unenforceable take limits were arbitrary and capricious.
http://www.ca4.uscourts.gov/opinions/181082.P.pdf
Third Circuit: USA v. Roy Green
Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague did not announce a new constitutional rule that would justify the appeal of sentences under any compulsory residual sentencing scheme; this is established in part by the subsequent holding of the Court that advisory residual sentencing schemes are not unconstitutionally vague. Circuit split flagged.
http://www2.ca3.uscourts.gov/opinarch/172906p.pdf
http://www2.ca3.uscourts.gov/opinarch/172906p.pdf
Second Circuit: United States v. Sampson
As the embezzlement statute requires conversion with intent, summary judgment for the deft based on the statute of limitations was error -- the intent to deprive can arise after the inappropriate withholding. Discovery under the FRCrimPro does not require the government to make a proffer of when such intent arises.
Claims about the theory of the made during liminal proceedings do not estop the government's right to make other assertions at trial. Theory of indictment claiming that the statewide state supreme court was a single agency is sufficiently supported by state court rulings and the state constitution. Where the appointment as referee has no firm ending date, whether the deft was acting in that capacity presents a question for trial.
http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/doc/15-2869_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/hilite/
Second Circuit: Anderson News, L.L.C. v. American Media, Inc.
Publishers' refusals to deal with middleman distributor were insufficiently close in time to be parallel conduct; statements seeming to indicate a common plan are susceptible of more innocent readings. As a matter of law, finder of fact could not have found beyond a reasonable doubt that the economically implausible refusal to deal had been established by the evidence.
http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/doc/15-2714_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/doc/15-2714_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/hilite/
First Circuit: US v. Sirois
There is not sufficient binding precedent to clearly establish that revocation of supervised release because of drug use violates the Eighth Amendment; revocation was therefore not plain error.
http://media.ca1.uscourts.gov/pdf.opinions/17-1797P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1797P-01A.pdf
First Circuit: Del Grosso v. Surface Transportation Board
Sufficient evidence for Board finding that packing process is part of the transportation process.
Board's decision that removal of damaged elements of fungible bulk cargo was a part of the transportation process was not arbitrary or capricious.
http://media.ca1.uscourts.gov/pdf.opinions/17-1794P-01A.pdf
Board's decision that removal of damaged elements of fungible bulk cargo was a part of the transportation process was not arbitrary or capricious.
http://media.ca1.uscourts.gov/pdf.opinions/17-1794P-01A.pdf
First Circuit: US v. Acevedo-Hernandez
Sufficient evidence for conspiracy.
In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.
Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.
As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.
Any sentencing errors harmless. No cumulative error.
http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf
In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.
Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.
As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.
Any sentencing errors harmless. No cumulative error.
http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf
Brief hiatus
Conference paper, dissertation, philosophical thinkin' to be done. Busy, back soon.
-CB
-CB
Seventh Circuit: Kelly Chavez v. Nancy Berryhill
When a SSA ALJ accepts an estimate of available employment opportunities that relies on an extrapolation of known data across an entire market or geographical area without sufficient indicia of the extrapolation's reasoning, he or she impermissably shifts the burden of proof to the claimant, resulting in a determination that is not supported by substantial evidence.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-18/C:17-2978:J:Scudder:aut:T:fnOp:N:2188695:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-18/C:17-2978:J:Scudder:aut:T:fnOp:N:2188695:S:0
Sixth Circuit: Liz Lopez Moreno v. Jason Zank
When a parent allegedly wrongfully removes a child from a country after the allegedly wrongful removal of the child to that country by the other parent, given the purposes of the Convention, the first parent is precluded from asserting that the residence of the child in the country to which it had been removed at first was not their habitual residence; to preserve future claims under the Convention, the Convention remedy must be invoked, as opposed to self-help.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0147p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0147p-06.pdf
Sixth Circuit: United States v. Rashad Woodside
Remand for recalculation of drug amounts was a limited remand that did not require a new hearing, and was appropriately resolved by amending the opinion; deft's presence at earlier sentencing satisfied the statute. Amounts appropriately calculated by a preponderance.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0146p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0146p-06.pdf
Sixth Circuit: Linda Isaacs v. DBI-ASG Coinvestor Fund, III, LLC
Federal court cannot revisit state court foreclosure ruling holding that a facially problematic lien in fact attached, since vindicating the lien isn't barred by the shield of bankruptcy discharge; the discharge only protects from claims against the person. Further, Rooker-Feldman prohibits lower federal courts from hearing a state-adjudicated claim even where there is explicit statutory jurisdiction.
As state law holds that a mortgage is valid even absent perfection, a claim that the lien was perfected in violation of the stay can provide grounds for subsequent avoidance, since a federal court's determination that the interest wasn't perfected does not contradict the state court's holding that the mortgage was valid.
Statutorily, the second trustee acquired the necessary powers; equitably, the debtor's ex post acquisition of the derivative powers of the second trustee was an appropriate flexible remedy.
Amicus had another idea, but the parties didn't raise it, so it wasn't considered.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0145p-06.pdf
As state law holds that a mortgage is valid even absent perfection, a claim that the lien was perfected in violation of the stay can provide grounds for subsequent avoidance, since a federal court's determination that the interest wasn't perfected does not contradict the state court's holding that the mortgage was valid.
Statutorily, the second trustee acquired the necessary powers; equitably, the debtor's ex post acquisition of the derivative powers of the second trustee was an appropriate flexible remedy.
Amicus had another idea, but the parties didn't raise it, so it wasn't considered.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0145p-06.pdf
Third Circuit: Lea Augustin v. City of Philadelphia
Property owners have sufficient interest upon which a due process claim can arise when a municipality files a perfected utility lien against the property, as it can cloud the title and complicate the property's use and value.
As a matter of law, the minimal deprivation of property rights imposed by the lien, the relative lack of difficulty in correcting errors or monitoring third-party compliance, and the value of the gas provided satisfy the due process interests of the landlords.
http://www2.ca3.uscourts.gov/opinarch/171216p.pdf
As a matter of law, the minimal deprivation of property rights imposed by the lien, the relative lack of difficulty in correcting errors or monitoring third-party compliance, and the value of the gas provided satisfy the due process interests of the landlords.
http://www2.ca3.uscourts.gov/opinarch/171216p.pdf
Second Circuit: Huebner, et al. v. Midland Credit Mgmt., et al.
So long as the questions are not misleading or abusive, the Act permits a spoken inquiry as to the reason for disputing a debt.
Given the specificity of the first claim in the trial management phase, court did not abuse discretion for imposing procedural sanctions when it proved false.
No abuse of discretion in, prior to imposing sanction, not allowing amendment of filing that violated confidentiality order.
Sanctions for vexatious litigation did not abuse discretion; ordering payment of opponent's fees for motion that was only partially granted was within the court's discretion.
Sanctions under the Act and the court's inherent authority were appropriate.
http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/doc/16-2363_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/hilite/
Given the specificity of the first claim in the trial management phase, court did not abuse discretion for imposing procedural sanctions when it proved false.
No abuse of discretion in, prior to imposing sanction, not allowing amendment of filing that violated confidentiality order.
Sanctions for vexatious litigation did not abuse discretion; ordering payment of opponent's fees for motion that was only partially granted was within the court's discretion.
Sanctions under the Act and the court's inherent authority were appropriate.
http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/doc/16-2363_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/hilite/
First Circuit: Doe v. Brown University
Allegation of assault against a student at one university by students at a second university does not state a Title IX claim against the second university where the alleged victim has not and does not intend to avail himself or herself of the educational programs and services of the second university.
http://media.ca1.uscourts.gov/pdf.opinions/17-1941P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1941P-01A.pdf
First Circuit: US v. Romero
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
http://media.ca1.uscourts.gov/pdf.opinions/17-1702P-01A.pdf
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/
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