The Circuit Barrister

Third Circuit: Marc Silver v. Omnicare Inc

Although the statute does not permit a relator to pursue a qui tam action where the fraud is public knowledge, where the relator uses privately available information to make sense of the public information and the public information, standing alone, would not reasonably or plausibly supported an inference of fraud under the heightened pleading requirements for the claim.

http://www2.ca3.uscourts.gov/opinarch/164418p.pdf

Third Circuit: Alex Taksir v. Vanguard Group

State action for breach of contract in reference to undisclosed transaction fees is not barred by the terms of the securities act, as the misrepresentation is not in connection to the sale of the security, and would not be material to the transaction. As the misrepresentation is outside of the act's scope, a fraud claim is similarly not forbidden.

http://www2.ca3.uscourts.gov/opinarch/173585p.pdf

Tenth Circuit: Grissom v. Carpenter

Trial counsel's arguments in mitigation phase at capital trial largely covered the ground that a closer examination of petitioner's undiagnosed brain damage would have led to, so state habeas ruling that representation was not constitutionally ineffective was not an unreasonable one.

Defense counsel's concession of the elements of the crime made instruction on lesser-included offenses redundant, and was apparently a legitimate strategic decision to focus the jury's attention on mitigation. As defendants cannot withdraw a defense, apparently stipulating to the elements shouldn't waive the instruction. Voluntary intoxication instruction was not prejudicial, given the high standard for relief under state law, and exists as a complete defense, not a mitigation. State habeas denial was therefore not unreasonable.

State habeas denial for cumulative error, presumably referencing ineffective assistance for the lack of lesser-included instruction and mitigation, was not unreasonable and contrary to law; de novo review of the total record in federal habeas can establish this.

https://www.ca10.uscourts.gov/opinions/16/16-6271.pdf

Ninth Circuit: Lucero v. Holland

Apparently incriminating gang writings insufficiently testimonial to trigger Confrontation Clause protections when introduced against a nontestifying codefendant.

Expert testimony that gang member was to have access to a weapon at all times and proximity to assault with a puncturing weapon insufficient to establish possession of a weapon.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/15-16111.pdf

Ninth Circuit: US v. Raygoza-Garcia

The vehicle's innocent conduct created sufficiently particularized and objective reasonable suspicion for the stop, given the experience of the officers.

Special Concur: True according to precedent, but problematic to use innocent conduct as basis for border stops.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/16-50490.pdf

Ninth Circuit: McCray v. Marriott

Where a labor right arises from a statute but is waived by a CBA, a challenge to the waiver is construed as a challenge to the statute, not to the CBA, making preemption removal inapposite and depriving the federal court of jurisdiction over the question of state law.

Dissent: It's about the CBA.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/17-15767.pdf

Eighth Circuit: Matthew Dickson v. Gospel for ASIA, Inc.

Arbitration agreement had sufficient mutuality in the counter-party's agreement to be bound.

Dissent: State law requires that, in order to create an enforceable agreement, both parties to an arbitration agreement must agree to arbitrate claims.

http://media.ca8.uscourts.gov/opndir/18/08/171191P.pdf

Seventh Circuit: Estate of Derek Williams, Jr. v. Jeffrey Cline

Remand of interlocutory review of denial of qualified immunity in order for the court below to make factual findings as to the defts' specific conduct.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-31/C:17-2603:J:Ripple:dis:T:fnOp:N:2211195:S:0

Seventh Circuit: USA v. Napoleon Foster

A conviction for using a firearm in the course of a robbery precludes increasing the underlying sentence for the robbery itself for explosive or weapons threats, even when those threats are unconnected to the firearm used in the robbery.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-31/C:17-3236:J:Scudder:aut:T:fnOp:N:2211361:S:0

Fifth Circuit: Joseph Zadeh, et al v. Mari Robinson, et al

While the medical profession generally is not a closely regulated industry for the purpose of determining the legitimate expectation of privacy of its members, pain management clinics might be a different case. Grant of qualified immunity upheld, as the scope of legitimate targets of administrative subpoenas was not clearly defined at the time.

Search not pretextual, as it was not conducted entirely to uncover criminality.

Court appropriately prudentially declined to hear application to stay state medical board's investigation, which can be considered a judicial proceeding.

Supervisor who acted according to the usual practices of the department was not deliberately indifferent to the potential harms of subdelegation.

Concur dubitante: @justicewillett -- QI problematic.

http://www.ca5.uscourts.gov/opinions/pub/17/17-50518%20-CV0.pdf

Fifth Circuit: Marcus Mote v. Debra Walthall

Employees' rights of expressive association and freedom of speech in forming association for mutual aid and support is protected under the First Amendment whether or not state law will permit the association to become an exclusive bargaining agent for the employees. Denial of qualified immunity upheld, as this was clearly established at the time.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40754-CV1.pdf

Third Circuit: Theodore Hayes v. Philip Harvey

Statute providing that a tenant receiving federal assistance may elect to remain in the housing under a different assistance program if the landlord opts out of the first assistance program creates a right to lease renewal absent good cause enforceable against any purchaser of a property currently rented to participants in the first assistance program.

Deference to agency's interpretation according to the power to persuade; remand to determine what constitutes good cause for nonrenewal.

http://www2.ca3.uscourts.gov/opinarch/162692p1.pdf

End of Day:

More:

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http://media.ca8.uscourts.gov/opndir/18/08/171382P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171914P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172724P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172726P.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/16-71933.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/16-35991.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/15-73603.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201710944.pdf

-CB

Seventh Circuit: Milton v. Boughton

Although the evidence from the uncounseled lineup was not properly admissible, petitioner was not prejudiced from the admission, given the other eyewitness identifications.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:17-1910:J:PerCuriam:aut:T:fnOp:N:2210678:S:0

Seventh Circuit: Anthony Kaminski v. Nancy Berryhill

Panel rehearing order with request for edited opinion by agency head.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:17-3314:J:PerCuriam:aut:T:orCo:N:2210668:S:0

Sixth Circuit: United States v. Kurt Mallory

Court did not abuse its discretion in finding that a witness was unavailable, since although the medical records were old, they indicated chronic conditions, and while the witness was earlier produced to the courtroom from the local jail, he was home-bound at the time of the trial.

No Confrontation Clause issue where the evidence that emerged after the deposition of the later-unavailable witness might have been presented at trial to attack the witness' credibility.

Although handwriting analysis does not have significant empirical support, it is a field of specialized expertise that might be useful to the finder of fact.

Error for judge to weigh motion to set aside the verdict as an objective question of sufficiency of the evidence, as the correct question was whether the judge subjectively understood the verdict to be against the weight of the evidence.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0195p-06.pdf

Sixth Circuit: League of Women Voters of Mich. v. Ruth Johnson

Elected representatives' interest in preserving relationships with their constituents merited permission to intervene in a redistricting action, as the interest was distinct from the interests represented by the other plaintiffs. In appellate review of the decision to deny permissive intervention, the equitable factors balanced are those prevailing at the time of the original decision to deny intervention.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0194p-06.pdf

Fifth Circuit: USA v. Carlos Fuentes-Canales

Although petitioner's sentence was flawed in that it counted a state statute as its generic federal equivalent, since the special verdict form required that the jury have found that either all the elements of the generic offense or all the elements of another generic offense had been met, the error in sentencing does not merit reversal for reasons of fairness or judicial integrity.

http://www.ca5.uscourts.gov/opinions/pub/15/15-41476-CR0.pdf

Third Circuit: USA v. Jay Goldstein

En banc order.

http://www2.ca3.uscourts.gov/opinarch/154094po.pdf

Third Circuit: USA v. Theodore Clark, III

Traffic stop was in violation of the Fourth Amendment, as the questioning into criminal history continued past the point at which the computerized driver's licence check had been completed.

http://www2.ca3.uscourts.gov/opinarch/172739p.pdf

First Circuit: Narragansett Indian Tribe v. RI Dep't of Transportation

Sovereign immunity bars claim arising from highway construction, as the private right of action in the Act exists only to enforce the Act, not to challenge the program-based decisions of the agency.

Federal court does not have jurisdiction over a breach of contract suit against a state unless the claim states a disputed and substantial federal issue, and prudential factors are favorable.

http://media.ca1.uscourts.gov/pdf.opinions/17-1951P-01A.pdf

First Circuit: Lemelson v. Bloomberg L.P.

News organization's pre-publication fact checking and investigation did not justify a finding of actual malice, as comment was sought from the investigating agency, and the fact that the agency's investigation centered on a company and not the plaintiff didn't make it less likely that the plaintiff was under investigation.

http://media.ca1.uscourts.gov/pdf.opinions/17-1620P-01A.pdf

End of day

More here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0192p-06.pdf

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0193p-06.pdf'
'
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-3196:J:Wood:aut:T:fnOp:N:2210037:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-1399:J:Rovner:aut:T:fnOp:N:2210117:S:0

http://media.ca8.uscourts.gov/opndir/18/08/164372P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171327P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171414P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172612P.pdf

Also 9, 10 & 11th.

-CB

Fifth Circuit: SCF Waxler Marine, L.L.C., et al v. Aris T M/V, et al.

Appellate court does not have jurisdiction over an interlocutory appeal challenging the trial court's holding that contractually, the excess insurers liability under the state's direct recovery statute is limited to the insured vessel.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30805-CV0.pdf

Fifth Circuit: Swinterton Builders v. Oklahoma Surety

Insurer had duty to defend, since the written agreement establishing the company as an insured party did not need to be countersigned by the company to be a written agreement; the company's consent can be inferred.

Where the claim is for breach of contract, an insurer still has a duty to defend against a claim for property damage where the factual situation alleged might present a claim for property damage.

Whether or not anti-stacking provisions apply to duty to defend, it would be inequitable to apply them here.

Damages in suit where insurer breached duty to defend qualify for state statute requiring prompt payment for the schedule.

Damages can be recovered under statute regardless of independent injury from the lack of payment.

http://www.ca5.uscourts.gov/opinions/pub/16/16-20195-CV1.pdf

Third Circuit: Ronald Cup v. Ampco Pittsburgh Corp

An order compelling arbitration, when issued while dismissing all counts in the present action, is sufficiently final for appeal.

Absent an explicit mention, employees who retired before the CBA are not integrated in the CBA by references to other documents without an attempt to incorporate them. As the arbitration provision requires that the matters arise under the CBA, it was error to compel arbitration.

http://www2.ca3.uscourts.gov/opinarch/172349p.pdf

First Circuit: Campbell v. Ackerman

As deft shifts the argument from actual innocence to an unjustified use of force during the search, trial court's exclusion of testimony as to irregularities in the search warrant is prudentially upheld, as the second argument was not raised squarely below.

Where the trial court found no liability, a claim of error in the damages testimony is moot.

http://media.ca1.uscourts.gov/pdf.opinions/17-1927P-01A.pdf

First Circuit: Perry v. Spencer

Qualified immunity for prison officials in suit challenging placement of inmate in segregation cells, as it was unclear at which point the due process interest arose, and safety concerns allow prison officials considerable discretion in scheduling adversarial challenges to administrative decisions.

http://media.ca1.uscourts.gov/pdf.opinions/16-2444U-01A.pdf

End of day

The pace, it must increase. Look for increased coverage in coming days, if you're reading this. Which you shouldn't be, as it shouldn't be relied upon for anything.

Other precedential holdings on 8/28

http://www2.ca3.uscourts.gov/opinarch/171990p.pdf

http://www2.ca3.uscourts.gov/opinarch/163346p.pdf

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0190p-06.pdf

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0191p-06.pdf

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2132:J:Easterbrook:aut:T:fnOp:N:2208964:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2920:J:Barrett:aut:T:fnOp:N:2209369:S:0

http://media.ca8.uscourts.gov/opndir/18/08/164275P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/164440P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171300P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172296P.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-55249.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-50096.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17497.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201711742.pdf

-CB

Third Circuit: Clayton Tanksley v. Lee Daniels

Although the standard is the perception of a layman, where no reasonable juror could find substantial similarity in the allegedly infringing content, judgment as a matter of law for not stating a claim is appropriate.

Although similarities in unprotectable elements of the two works can be probative of allegations of actual copying, striking similarities in the concept for the protagonist do not make the superficial similarities in the protectable expression a violation of copyright.

http://www2.ca3.uscourts.gov/opinarch/172023p.pdf

Third Circuit: Craig Geness v. Jason Cox

An argument for equitable tolling must be raised in the opening appellate brief; otherwise, it's waived.

When inquiring as to whether a nolle prosequi was a favorable determination, a court must look beyond the four corners of the order.

Given an affidavit to the contrary and absent any deposition testimony, speculation that exculpatory evidence was known at the time was insufficient to present a genuine issue of material fact.

Claim of discrimination under federal law is a new and separate claim not barred by Rooker-Feldman after earlier state court adjudication relating to the events.

Motion to amend at summary judgment stage within a year of filing is presumptively timely.

http://www2.ca3.uscourts.gov/opinarch/172073p.pdf

Second Circuit: Empire Merchants, LLC, et al. v. Reliable Churchill, LLLP, et al.

Smuggling operation is a single conspiracy for the purposes of civil RICO, as the particularly pleaded effects all result from the single operation.

Assertion of actual and foreseeable economic loss is insufficient to state a civil RICO claim, since the predicate conduct must be the proximate cause of the harm, and many factors might have prompted the economic loss.

http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/doc/17-887_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/hilite/

End of day

Really, a city that never sleeps should have some 24 hour coffeehouses. #itsleeps

Only 1 & 2 covered tonight. More in 5-10 and Federal Circuit. Cheers.

-CB

Second Circuit: Olagues v. Perceptive Advisors LLC

Defts were no longer corporate insiders for the purposes of the statute when the options expired, since regardless of whether the regulations imposed an earlier constructive time cutoff for the expiration of the option, the plain meaning of the statute, which is to be favored for the ease of mechanical implementation, refers to the actual expiration time of the option.

http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/doc/17-2703_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/hilite/

Second Circuit: United States v. Le

Acquisition of biological toxin through the Internet and the mails is fundamentally different than the local use of a similarly proscribed substance, so a statute need not be construed to avoid offending the police power of the states.

Even within such a narrowing construction, acquisition of this substance would be within the plain proscription of the federal statute.

Law implementing international convention is constitutional under the Commerce Clause.

http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/doc/16-819_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/hilite/

First Circuit: Aguilar de Guillen v. Sessions

Immigration judge's finding that the persecution was economic in nature was not clearly erroneous in forgoing analysis of secondary and mixed motives, as the record indicates that mixed motives were considered, and nothing in the record suggests that either the judge or the agency understood the finding of economic motive to preclude a finding of secondary or mixed motives.

A social group of single mothers who cannot move from their region is insufficiently particular for consideration of the possibility of future persecution.

Bare claim that agency's data is dated is insufficient to make it arbitrary or capricious absent a showing of changed conditions.

http://media.ca1.uscourts.gov/pdf.opinions/17-2095P-01A.pdf

First Circuit: Gustavsen v. Alcon Laboratories, Inc.

Plaintiffs challenging design of medication container allege sufficient monetary loss for standing, given the possibility that the market will pass along some savings from a redesigned container to the consumer, and the fact that the present design operates as a surcharge.

Statute with a discrete list in the first subpoint and a list of qualitative factors in the second subpoint encompasses anything that corresponds to the qualitative factors, whether or not in the first subpoint.

Where an agency's sporadic rulemaking or adjudication is in tension with clearly considered regulatory guidance, less deference is due to the former.

http://media.ca1.uscourts.gov/pdf.opinions/17-2066P-01A.pdf

End of day

More:

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http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

https://www.ca10.uscourts.gov/clerk/opinions/daily

https://www.cadc.uscourts.gov/internet/opinions.nsf

http://www.cafc.uscourts.gov/opinions-orders

(NB all are dynamic links, and therefore potentially misleading.)

-CB

Sixth Circuit: Loren Robinson v. Jeffrey Woods

A sentencing scheme relying in part on questions decided as a matter of law by the judge violates the right to a trial by jury; where the scheme sets a mandatory minimum beneath a fixed statutory maximum, the system is sufficiently determinate to be subject to Sixth Amendment scrutiny.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0188p-06.pdf

Sixth Circuit: Ky. Emps. Ret. Sys. v. Seven Ctys. Servs., Inc.

Community mental health center is not a government instrumentality, since it was not started by the government, its leadership isn't selected by the government, and the government doesn't have the power unilaterally to terminate it.

Question certified on the basis of the relationship withe the state employees retirement system.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0186p-06.pdf

Second Circuit: United States v. Santillan

Traffic stop was reasonably prolonged after suspects were nervous and unable to explain where they were coming from.

Admission of statements arising from a discovery of money during patdown later admitted as inevitable discovery was harmless error.

Being placed in the back seat of the police car insufficiently custodial to require Miranda warning.

Passenger in car without a close relationship to the driver does not have a legitimate expectation of privacy in the area around the passenger's seat, and therefore cannot object to a search.

Dissent: Generalized nervousness and presence of energy drinks are not a cause for suspicion; race is occasionally a factor; driver is not required to tell police where they are driving from.

http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/doc/16-1112com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/hilite/

Second Circuit: United States v. Hoskins

Appellate courts have statutory jurisdiction over interlocutory appeals of dismissals of significant parts of individual counts charged, together with pendent jurisdiction over any preliminary rulings inextricably intertwined.

Foreign nationals operating abroad who are not agents of US companies form a discrete class of persons which Congress deliberately excluded from the Act; US conspiracy law does not apply to foreign nationals violating the act abroad without a connection to a US interest, given the presumption against extraterritorial application.

Concur: The principles underlying the presumption against extraterritorial application and legislative history establishes this, but Congress should revisit.

http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/doc/16-1010comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/hilite/

First Circuit: Torres-Pagan v. Berryhill

Corrigendum.

http://media.ca1.uscourts.gov/pdf.opinions/17-2146E-01A.pdf

First Circuit: US v. Rivera-Berrios

Where the present offense prompted the revocation of an earlier parole, federal law requires that the criminal history of the deft for the present sentencing rates the earlier conviction at its post-revocation level.

Substantively, the sentence was within the encincture of the court's discretion.

http://media.ca1.uscourts.gov/pdf.opinions/17-1212P-01A.pdf

End of day

More here:

http://www.opn.ca6.uscourts.gov/opinions/opinions.php

http://media.ca7.uscourts.gov/opinion.html

http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

http://www.ca11.uscourts.gov/todays-published-opinions

-CB

Fifth Circuit: USA v. Raylin Richard

Plea bargain appeals waiver bars challenge to element of crime charged in bill of information; a guilty plea to the bill with a factual resume concedes all elements of conviction.

Sentence increase for causing victim to engage in certain behavior does not require that the victim is conscious of engaging in the behavior.

Sentence increase for obstruction justified when the obstruction is in a closely related matter.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30654-CR0.pdf

Third Circuit: Edward Mitchell v. Superintendent Dallas SCI

Although co-deft was correctly granted the writ on question of severance at trial, a subsequent change in the law has established that there was no confrontation clause issue requiring severance, and since the present petitioner is not being held in violation of the law, Habeas would not run.

http://www2.ca3.uscourts.gov/opinarch/173118p.pdf

Second Circuit: HealthBridge Management, LLC v. National Labor Relations Board

Given the evidence that the move was an attempt to avoid obligations under the CBA, employer's shift of a group of employees to a subcontractor was simply a disguised continuance of the business, and the protections of the CBA continued, whatever the technical employment status of the employees.

Holiday time-and-a-half provision of CBA not limited by parallel provision granting holiday pay to certain classes of workers; plain meaning and course of performance establish this.

CBA counts lunch half-hour as time actually worked, as it is compensated.

http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/doc/17-934_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/hilite/

First Circuit: Harry, Jr. v. Countrywide Home Loans, Inc.

Fraud that voids a transaction ab initio does not toll or waive the relevant statute of limitations for actions to claiming fraud that voids a transaction ab initio.

Tolling a statute of limitations due to fraudulent concealment requires a threshold showing of due diligence by the movant, which can be disproved by delays in filing.

Acceleration of a mortgage note does not affect the time limits under state law on the right to foreclose.

Mortgagor does not have a private right of action against mortgagee under state mortgage licensing law.

http://media.ca1.uscourts.gov/pdf.opinions/16-2380P-01A.pdf

The rest of the story

End of day. Perfunctory coverage continues.

http://www.ca3.uscourts.gov/opinions-and-oral-arguments

http://www.opn.ca6.uscourts.gov/opinions/opinions.php

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

http://www.ca11.uscourts.gov/todays-published-opinions

-CB

Third Circuit: USA v. Anthony Mayo

A second or successive habeas petition will be entertained if the sentence challenged may have been based on the retroactively invalidated sentencing provision.

State statute is categorically not a valid predicate crime of violence, as it can be committed by an omission.

http://www2.ca3.uscourts.gov/opinarch/164282p.pdf

Third Circuit: Encompass Insurance Co v. Stone Mansion Restaurant Inc

Given the plain reading of the statute, a domestic opponent can remove a case to federal court despite the forum defendant rule if the notice of removal is filed before acceptance of service of the complaint; the rule as set forth in the statute only applies to parties who have been properly joined and served. Party's agreement to accept electronic service did not have a preclusive effect on consent to jurisdiction.

As contribution within joint liability arises not from a finding of liability, but from an equitable allocation of costs, the insurer of a driver who harms another can recover a contribution from the bar that served the driver, despite the dram shop law limiting liability to third parties.

http://www2.ca3.uscourts.gov/opinarch/171479p.pdf

Third Circuit: Brandy Kane v. Shawn Barger

Denial of qualified immunity, as circuit precedent involving illicit videotaping of fellow officers and inappropriate physical contact with arrestees clearly established a due process right to bodily integrity that was offended by the manner of the assault investigation.

http://www2.ca3.uscourts.gov/opinarch/173027p.pdf

Third Circuit: Elaine Levins v. Healthcare Revenue Recovery

A debt collector's phone message left under a DBA states a claim for a violation of the "true name" provision of the statute, but importing the "true name" requirement into other prohibited deceptive practices would make the provision superfluous.

http://www2.ca3.uscourts.gov/opinarch/173330p.pdf

Second Circuit: Am. Civil Liberties Union v. U.S. Dep’t of Defense

The Secretary's designation of the photos as protected under the Act was logical and plausible given the consultations with military commanders and the commanders' detailed reports of the military situation.

http://www.ca2.uscourts.gov/decisions/isysquery/e4d28d9e-9be6-4844-a955-5bf7b1ff418f/1/doc/17-779amm%20com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e4d28d9e-9be6-4844-a955-5bf7b1ff418f/1/hilite/

End of day

Still on minimal coverage mode. A few slings and/or arrows to slog through. Onward.

The rest of today's new appellate law:

http://www.ca3.uscourts.gov/opinions-and-oral-arguments

http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions

http://www.opn.ca6.uscourts.gov/opinions/opinions.php

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=today&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

https://www.ca10.uscourts.gov/clerk/opinions/daily

https://www.cadc.uscourts.gov/internet/opinions.nsf

-CB

Second Circuit: Am. Civil Liberties Union v. U.S. Dep’t of Defense

http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/1/doc/17-779%20com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/1/hilite/

Second Circuit: United States v. Philip Zodhiates

Subpoena of cellular phone location records permissible under good faith exception via the third party doctrine.

A court order from a state in which the marriage was legal was entitled to full faith credit in the state of residence, which otherwise would not have recognized the marriage. Prior circuit precedent holding the law of the state of residence to determine the applicable protections applies only in the absence of this type of direct mandate.

Prosecution statements in closing were permissible inferences.

http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/2/doc/17-839_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/2/hilite/

First Circuit: Richard v. Regional School Unit 57

Establishment that the employer's nondiscriminatory justification was in fact pretextual does not establish causation, which must be proved separately.

Sufficient evidence for court's inferences.

Dissent: From totality of record, retaliation was plain.

http://media.ca1.uscourts.gov/pdf.opinions/17-2200P-01A.pdf

First Circuit: United Food & Comm. Workers v. Novartis Pharm.

Claiming that a potentially obvious invention was in fact surprising is not a basis for invalidating the subsequent patent or holding the filing to be fraudulent -- there is no indication that the use of the word caused the patent to be awarded. Subsequent attempt to enforce the patent rights therefore not a sham.

http://media.ca1.uscourts.gov/pdf.opinions/17-1714P-01A.pdf

First Circuit: Scholz v. Goudreau

Given uncontroverted evidence of attempted compliance with the terms of the agreement, court did not abuse its discretion in holding that there was no issue for trial.

As the question was relevant to other matters, lack of objection to cross-examination questions on actual versus apparent authority did not constitute implied consent to an amendment of claim to include breach.

As damages are an element of the breach claim, court did not abuse its discretion in refusing entry of judgment on breach claim after jury's finding of breach in order to dispel the counterclaim.

Allegation that litigation was used to obtain contract rescission sounds in malicious prosecution, not in abuse of process.

Where the legitimate purpose of the claim is truthfully stated in the claim itself, the claim is not an abuse of process, however spitefully it might have been raised.

Court was within its discretion in refusing an award of fees.

Court was within discretion in admitting contemporaneous, ostensibly independent YT clip under the theory that it was part of the album's marketing.

http://media.ca1.uscourts.gov/pdf.opinions/17-1264P-01A.pdf

First Circuit: US v. Arias-Mercedes

Denial of minor-participant sentence reduction was within court's discretion where the deft helped to pilot the craft with the drugs through a dangerous ocean voyage.

Within-guidelines sentence substantively reasonable.

http://media.ca1.uscourts.gov/pdf.opinions/17-1229P-01A.pdf

First Circuit: Boudreau v. Lussier

Expert testimony is required to establish that time-stamped screenshots taken of employees computer are, for purposes of the statute, contemporaneous intercepts of electronic communications.

Impoundment and subsequent inventory search of arrestee's vehicle from employer's private lot were justified under the community caretaker exception; even if the motive was investigatory, subjective intent is irrelevant, and the towing was objectively justified.

Employer defts would be protected by qualified immunity for consenting to search of employees computer where their authority to do so was not plain.

http://media.ca1.uscourts.gov/pdf.opinions/16-1049P-01A.pdf

End of day

Much law to the west (and southeast), viz:

http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions

http://www.opn.ca6.uscourts.gov/opinions/opinions.php

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes

http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl

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

-CB

Third Circuit: Newark Cab Association v. City of Newark

The owner of a taxi licence has a Constitutional property interest in the licence, but not necessarily in its economic value.

Sufficient rational basis for treating street-hail cabs differently than app-based services.

City's licensing scheme does not use language that plainly expresses the intention to create a contractual obligation, and is not definite enough to bind by estoppel,.

http://www2.ca3.uscourts.gov/opinarch/171358p.pdf

Third Circuit: In re: Arctic Glacier International

Shareholders who acquired shares post-bankruptcy-confirmation are transferees who step into the shoes of the previous owners, and their post-confirmation claims based on FINRA and tort are therefore barred by the bankruptcy's release of claims.

http://www2.ca3.uscourts.gov/opinarch/172522p.pdf

Second Circuit: United States v. Lloyd

Although the court erred in not reciting the elements of the crime during the plea colloquy, there is insufficient proof on appeal that the deft would have otherwise rejected the plea.

Ample grounds in the facts stipulated and the PSR for the court to be satisfied that the plea was legitimate.

Ineffective assistance claim reserved for collateral challenge to allow for development of the record.

http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/1/doc/16-3169_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/1/hilite/

Second Circuit: Paysys Int’l, Inc. v. Atos IT Servs. Ltd.

Granting of motion to dismiss with prejudice is appealable as a final order, regardless of whether a final decision has been entered.

A party moving to dismiss its own complaint with prejudice after the filing of the first responsive pleading is entitled to withdraw the motion and proceed to litigate the merits when the movant believes that the more than de minimis conditions for dismissal ordered by the court are excessive.

http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/2/doc/17-2204_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/2/hilite/

First Circuit: Mondol v. Somerville, MA

Meetings between the principals after the events of the case do not in themselves present an issue of possible cover-up for trial; communications before the events of the case do not in themselves present an issue of conspiracy for trial, as the wrong was likely not planned in advance.

Judges shouldn't be asked to hunt for truffles.

http://media.ca1.uscourts.gov/pdf.opinions/17-2076U-01A.pdf

First Circuit: Lemus v. Sessions

Corrigendum.

http://media.ca1.uscourts.gov/pdf.opinions/17-2068E-01A.pdf

First Circuit: US v. Madera-Rivera

Corrigendum,.

http://media.ca1.uscourts.gov/pdf.opinions/17-1319E-01A.pdf

First Circuit: Soto-Cintron v. US

As the arresting officers' mistake was reasonable, given the message received on the radio, it would not have been actionable in a suit against the government -- as it was not actionable in that context, there is no private wrong to sound in tort.

http://media.ca1.uscourts.gov/pdf.opinions/17-1180P-01A.pdf

First Circuit: Newman v. Lehman Brothers Holdings Inc.

When the complaint affirmatively states a filing date for an administrative proceeding that would be past the statutory cutoff, but then is subsequently amended to obscure that filing date, the court does not engage in impermissible fact-finding in examining the administrative complaint to determine if it was timely, since the administrative complaint serves as the factual basis for the present action.

http://media.ca1.uscourts.gov/pdf.opinions/15-2239P-01A.pdf

First Circuit: US v. Villodas-Rosario

Consideration of whether enforcing an appellate waiver in a plea deal would be a miscarriage of justice refers to the harm alleged in the appeal, not whether the mechanics of the plea deal itself work a miscarriage of justice.

http://media.ca1.uscourts.gov/pdf.opinions/15-1981P-01A.pdf

Cases not appearing in this film

End of day. More cases here:

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

Eighth Circuit: Zach Hillesheim v. Holiday Stationstores, Inc.

Claim that placement of refuse can blocked entry to the store disabled persons' access to the store alleges a sufficiently concrete and particular injury for standing.

http://media.ca8.uscourts.gov/opndir/18/08/173143P.pdf

Eighth Circuit: Samuel Scudder v. Dolgencorp

Genuine issue for trial presented as to disputed resignation where (1) management construed the conversation as a resignation, and employee later disputes; (2) returning military employee filed application through main system rather than the personnel agent who had handled his earlier military leave.

As SSA doesn't consider reasonable accommodation, a claim of disability doesn't judicially estop the plaintiff from claiming a right to employment during the same period.

http://media.ca8.uscourts.gov/opndir/18/08/172941P.pdf

Eighth Circuit: United States v. Deborah Brabant-Scribner

As the regulation requires the IRS to consider alternatives for collection and not alternatives to collection, agency need not have resolved a compromise offer before an Article III court can permit the sale of the primary residence.

http://media.ca8.uscourts.gov/opndir/18/08/172825P.pdf

Eighth Circuit: United States v. Michael John Walker

Sentencing bump for possession of a weapon in support of the crime inappropriate where the weapon was locked in the trunk and the crime was use or possession of a user's amount of drugs.

http://media.ca8.uscourts.gov/opndir/18/08/171680P.pdf

Seventh Circuit: Marcus Muhammad v. Del Pearson

Where contemporaneous documents establish that the warrant was vague due to clerical error, and that the vagueness was resolved by actual knowledge of the officers, the question can be resolved as a matter of law.

Arguable probable cause for arrest.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:15-3044:J:Hamilton:aut:T:fnOp:N:2204382:S:0

Seventh Circuit: Volney McGhee v. Cameron Watson

Where ineffective assistance at trial isn't used to establish ineffective assistance on direct review, state habeas petition for ineffective assistance on direct review does not exhaust the ineffective assistance at trial for subsequent federal habeas review.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:15-3881:J:Wood:con:T:fnOp:N:2203949:S:0

Seventh Circuit: USA v. David Watson

Phone tip that children were playing with guns had insufficient indicia of criminality to justify blocking in of vehicle and subsequent searches.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1651:J:Hamilton:con:T:fnOp:N:2204352:S:0

Seventh Circuit: Elliott Levin v. William Miller

Corporate officers had no obligation to counsel the board on the wisdom of not disbursing the tax refunds to the soon-to-fail banks, given the stated board policy of support for the banks.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1775:J:Sykes:aut:T:fnOp:N:2203966:S:0

Seventh Circuit: Daniel Martinez v. City of Chicago

S1983 plaintiff has to carry the burden on all disputed questions, including exigent circumstances.

Probable cause for custodial detention in own home after police entry, given proximity to scene of crime.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1888:J:Ripple:aut:T:fnOp:N:2203888:S:0

Seventh Circuit: Peggy A. Berg v. SSA

The Act's 90-day look-back period considers accrued SSA benefits as of the date of their accrual, rather than as of the date of the administrative notice of the accrual of benefits.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-2389:J:Rovner:aut:T:fnOp:N:2204132:S:0

Sixth Circuit: Miami-Luken, Inc. v. DEA - Drug Enforcement Agency

Agency head's order quashing an ALJ's subpoena is not a final agency action for the purpose of statutory Article III review.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0173p-06.pdf

Fifth Circuit: Sealed Appellee v. Sealed Appellant

Deft waived right to non-conflicted counsel when accepting that counsel had a conflict while fully aware that, additionally, counsel was a potential co-defendant in the present action.

http://www.ca5.uscourts.gov/opinions/pub/17/17-50487-CV0.pdf

Fifth Circuit: IAS Service Group, L.L.C. v. Jim Buckley & Associates

Fraudulent inducement pleaded with sufficient particularity; Contractual term did not operate as a disclaimer of reliance; no clear error in court's determination that breach of contract regarding assignment was harmless; party asserting breach had the obligation to establish performance of the condition precedent.

http://www.ca5.uscourts.gov/opinions/pub/17/17-50105-CV0.pdf

Fifth Circuit: USA v. Henry Reddick

After hash values of suspect images were flagged by the private vendor, subsequent opening of the files by law enforcement did not violate the Fourth Amendment, as the opening didn't expand the scope of the search.

http://www.ca5.uscourts.gov/opinions/pub/17/17-41116-CR0.pdf

Fifth Circuit: Ashley Krawietz, et al v. Galveston Independent Schools

School district did not act quickly enough after having cause to know of the need for action. Plaintiff was correctly categorized as a prevailing party for the purpose of the fee award when the court ordered the deft. to comply with their obligations under the Act.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40461-CV0.pdf

Fifth Circuit: Veritext Corporation v. Paul Bonin, et al

State regulation of business practices of shorthand court reporters is justified by a sufficiently strong state interest.

The practice is not immunized against antitrust scrutiny, though, as there is no active state oversight; while the regulations are a creation of the legislature, and the Board is merely administering them.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30691-CV0.pdf

Fifth Circuit: Gregory Samples v. Harris County

Grant of qualified immunity for police use of taser on fellow who might have struck a fighting stance.

http://www.ca5.uscourts.gov/opinions/pub/17/17-20350-CV0.pdf

There's more

...elsewhere. viz:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=today&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes

http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

http://www.ca11.uscourts.gov/todays-published-opinions

http://www.cafc.uscourts.gov/opinions-orders

All for now. Back tomorrow if the crick don't rise.

-CB

Seventh Circuit: BRC Rubber & Plastics, Inc. v. Continental Carbon Company

Conditional right of first refusal requiring counterparty to allow vendor the chance to match any lower price for the contracted item is sufficiently binding on the first party to operate as consideration for the contract. As the factual statements of the original claim support a theory of anticipatory repudiation, the court may allow the new theory of claim at summary judgment, absent prejudice.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-16/C:17-2783:J:Ripple:aut:T:fnOp:N:2203557:S:0

Seventh Circuit: Naperville Smart Meter Awarene v. City of Naperville

As it gives the government data that would be otherwise unavailable without a physical search, electrical consumption data collected at fifteen-minute intervals retained for a space of years constitutes a search under the Fourth Amendment. Given the significant government interests in the program, the fact that excessive electricity use isn't a crime per se, and that, according to a guarantee sent to users by the utility, third parties, including law enforcement, need a warrant for access to customer data, the search is a reasonable one.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-16/C:16-3766:J:Kanne:aut:T:fnOp:N:2203659:S:0

Sixth Circuit: Jena McClellan v. Midwest Machining, Inc.

Where a plaintiff alleging discrimination attempts to return the contractual consideration for an earlier waiver of the claim within a reasonable period of learning of their rights under the discrimination statute, the common-law tender-back rule is satisfied.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0171p-06.pdf

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