Antitrust suit against producer of raw metal cannot relate back its revised claim, making it untimely; the shift from industrial plaintiffs to the end users of the products gave the defendants insufficient notice to preserve documents and prepare for trial.
State antitrust laws likely require closer proximancy than the end user of the products, as loss calculation becomes difficult.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-06/C:17-2910:J:Wood:aut:T:fnOp:N:2213421:S:0
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.
Sixth Circuit: Neil Morgan v. Fairfield Cty., Ohio
Denial of qualified immunity for municipality policy authorizing police officers to surround a house, standing 5-7 feet from it before knocking on door to discuss a possible violation of the law, as the systematic invasion of the curtilage wasn't considered. Immunity upheld for individual officers upheld, given evolving caselaw.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0199p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0199p-06.pdf
Fifth Circuit: Consumer Financial Protection v. Source for Public Data
Agency administrative subpoena that does not identify the activity under investigation or the relevant provision of law does not allow for judicial review of the reasonableness of the request, making it statutorily infirm.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10732-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-10732-CV0.pdf
Fifth Circuit: David Hager v. Todd G. Rowan
Discharged employee retains ERISA standing to challenge COBRA notification.
Since the employee was no longer eligible for the plan, medical costs otherwise covered by the plan are not an appropriate remedy; as the remedy must be in equity, the medical costs are similarly an inappropriate award; the proper remedy is a penalty based on the seriousness o the violation, and it is entirely possible that the amount of the penalty is equal to the medical costs incurred.
Third Circuit: Gordon Tima v. Attorney General United States
Statute that allows discretionary waiver of certain bad acts that would otherwise result in deportation by its terms only refers to fraud affecting admissibility, so a conviction for making false statements during an investigation of the admissibility fraud is not subject to discretionary waiver.
Third Circuit: Mona Estrada v. Johnson & Johnson
A person who purchases a product later found to be unsafe but who suffers no harm from the use of the product and who did not forgo purchasing a cheaper version of the product does not suffer sufficient injury for Article III standing, as they have received the benefit of their bargain.
Dissent: Safety of the product is an element of the bargain.
http://www2.ca3.uscourts.gov/opinarch/172980p.pdf
Dissent: Safety of the product is an element of the bargain.
http://www2.ca3.uscourts.gov/opinarch/172980p.pdf
First Circuit: Rivera v. Sessions
Procedural error in immigration administrative appeal seeking discretionary relief cannot present a cognizable constitutional question for purposes of Article III review, as there is no cognizable, constitutionally guaranteed liberty interest.
http://media.ca1.uscourts.gov/pdf.opinions/18-1243P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/18-1243P-01A.pdf
First Circuit: US v. Freitas
No prejudice from admission of co-conspirator hearsay, given overwhelming evidence of guilt.
Challenges to instructions either waived for insufficient development or contradicted by record.
Challenge to sufficiency of the evidence waived,, as appeal did not state or argue the standard of review.
No prejudice from plain error in prosecution's closing that went beyond the facts established at trial.
First Circuit: Doe v. Harvard Pilgrim Health Care
The administrative record for the purpose of judicial review properly includes documentary evidence from the post-filing review process, where both parties consent to the addition of the record in the post-filing process.
ERISA appeals at summary judgment are governed by clear error; remand to allow the court to interpret the documents.
http://media.ca1.uscourts.gov/pdf.opinions/17-2078P-01A.pdf
ERISA appeals at summary judgment are governed by clear error; remand to allow the court to interpret the documents.
http://media.ca1.uscourts.gov/pdf.opinions/17-2078P-01A.pdf
End of Day
Should have been able to get through all of these. Citius, altius, etc. Brain-cloud, perhaps.
http://media.ca8.uscourts.gov/opndir/18/09/173242P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/163891P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172012P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/17-35355.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/16-35431.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/13-56061.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201714677.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201315258.pdf
-CB
http://media.ca8.uscourts.gov/opndir/18/09/173242P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/163891P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172012P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/17-35355.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/16-35431.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/13-56061.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201714677.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201315258.pdf
-CB
Seventh Circuit: USA v. Daniel Stewart
No plain error in prolongation of traffic stop, given the minimal length of traffic stop. Sufficient evidence for money laundering, given illicit source of funds.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-05/C:16-4105:J:Rovner:aut:T:fnOp:N:2212702:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-05/C:16-4105:J:Rovner:aut:T:fnOp:N:2212702:S:0
Sixth Circuit: Brittany Harris v. Kimberly Klare
Denial of qualified immunity as a matter of law for officer's search of minor during traffic stop, as there is a question of whether the officer knew that there were minimal grounds for suspicion and that a dog search had turned up nothing; denial of qualified immunity as a matter of law for consensual search, as minor plaintiff was hancuffed, surrounded by police, had been stopped for an hour, and the search was apparently a precondition to using the restroom.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0198p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0198p-06.pdf
Third Circuit: Damien Preston v. Superintendent Graterford SCI
Although counsel in the initial state collateral challenge was ineffective, excusing the waiver of the claim due to its omission, the underlying claim of ineffective assistance at trial due to the Confrontation Clause violation did not prejudice the petitioner, given the cumulative evidence of guilt.
http://www2.ca3.uscourts.gov/opinarch/163095p.pdf
http://www2.ca3.uscourts.gov/opinarch/163095p.pdf
Third Circuit: Township of Bordentown v. FERC
Issuance of a permit conditioned on obtaining of second state permit did not offend the Act, as the conditional permit did not allow any discharges into the waters of the United States.
As each project is viable without the other, agency was not arbitrary or capricious in considering them separately.
Deference to agency determination that nonjurisdictional utility project was not sufficiently connected to jurisdictional projects to warrant formal review.
Agency's determination of minimal impacts appropriately resolved claim of cumulative impacts.
etc, etc. ...
Original federal appellate jurisdiction for violations of the act does not displace state administrative remedies in the permitting process.
http://www2.ca3.uscourts.gov/opinarch/171047p.pdf
As each project is viable without the other, agency was not arbitrary or capricious in considering them separately.
Deference to agency determination that nonjurisdictional utility project was not sufficiently connected to jurisdictional projects to warrant formal review.
Agency's determination of minimal impacts appropriately resolved claim of cumulative impacts.
etc, etc. ...
Original federal appellate jurisdiction for violations of the act does not displace state administrative remedies in the permitting process.
http://www2.ca3.uscourts.gov/opinarch/171047p.pdf
Third Circuit: Carol Vorchheimer v. Philadelphian Owners Association
To state a claim for denial of necessary housing accommodation, plaintiff must establish the necessity of the accommodation beyond alternate solutions proposed by the landlord. Joint agency statement indicating that the tenant has a right to their suggested modification has little power to persuade, as it does not explicitly purport to interpret the statute.
http://www2.ca3.uscourts.gov/opinarch/171738p.pdf
http://www2.ca3.uscourts.gov/opinarch/171738p.pdf
Third Circuit: In re: Tribune Media Company
Bankruptcy Court had statutory jurisdiction to resolve discrimination claims against debtor as a matter of law, as plaintiff consented to jurisdiction, and the statutory carve-out that would usually move personal-injury tort claims to the District Court is not a jurisdictional provision.
Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns. Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.
As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.
Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.
Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.
Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.
http://www2.ca3.uscourts.gov/opinarch/172449p.pdf
Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns. Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.
As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.
Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.
Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.
Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.
http://www2.ca3.uscourts.gov/opinarch/172449p.pdf
Third Circuit: William Lee v. Sixth Mt Zion Baptist Church
Claims of minister whose contract with his church was terminated for cause due to lack of spiritual leadership do not present an issue for trial, as the question would impermissibly entangle the court in religious matters, and the church has a freestanding First Amendment right to select its ministers.
http://www2.ca3.uscourts.gov/opinarch/173086p.pdf
http://www2.ca3.uscourts.gov/opinarch/173086p.pdf
End of Day
Working much more slowly at these than before for some reason. This should have been a 100% coverage day. For the nonce, chalking it up to putting the task at the end of a long day. Or perhaps the Trollope over dinner. Reading rhythms.
More:
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0196p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0197p-06.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-04/C:17-2890:J:Sykes:aut:T:fnOp:N:2212102:S:0
http://media.ca8.uscourts.gov/opndir/18/09/171374P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/17-30084.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-50326.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-35684.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-15588.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/15-35845.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201512130.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C5C55E88E352419C852582FE004E7052/$file/16-5298.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C43C5F8C1F01517F852582FE004E4BCA/$file/17-1151.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2434.Opinion.9-4-2018.pdf
-CB
More:
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0196p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0197p-06.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-04/C:17-2890:J:Sykes:aut:T:fnOp:N:2212102:S:0
http://media.ca8.uscourts.gov/opndir/18/09/171374P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/17-30084.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-50326.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-35684.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-15588.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/15-35845.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201512130.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C5C55E88E352419C852582FE004E7052/$file/16-5298.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C43C5F8C1F01517F852582FE004E4BCA/$file/17-1151.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2434.Opinion.9-4-2018.pdf
-CB
Fifth Circuit: In Re: Alfred Bourgeois
Second or successive habeas petitions from prisoners in federal custody must meet the same statutory thresholds as do those from state prisoners.
http://www.ca5.uscourts.gov/opinions/pub/18/18-40270-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/18/18-40270-CV0.pdf
Fifth Circuit: Thomas Martone v. Walter Robb, III, et al
Plaintiff need not sell stock to establish loss causation for standing -- purchase at inflated price and holding at reduced value suffices for particular injury.
Where there was no alternative that would have avoided the fall in stock price, the allegedly harmful timing of the disclosure might have been a legitimate business decision. ANy hedging strategy would, as a matter of law, have required disclosure. Additionally, the board could no have been certain that the employee stock plan would be a net purchaser during the period under consideration.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50702-CV0.pdf
Where there was no alternative that would have avoided the fall in stock price, the allegedly harmful timing of the disclosure might have been a legitimate business decision. ANy hedging strategy would, as a matter of law, have required disclosure. Additionally, the board could no have been certain that the employee stock plan would be a net purchaser during the period under consideration.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50702-CV0.pdf
Fifth Circuit: Norman Bloom v. Aftermath Pub Adjusters, Inc., et
Absent state precedent to the contrary, in a federal forum, state procedural rules on tolling of claim are limited to the class of persons explicitly identified in the state precedent or statute. Federal forum cannot equitably modify, as it is a question of law.
http://www.ca5.uscourts.gov/opinions/pub/17/17-41087-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-41087-CV0.pdf
Third Circuit: Delaware Riverkeeper Network v. Sec PA Dept Env Protection
Given the strong presumption of administrative unreviewability until final administrative action, the statute's silence eon the question, combined with a jurisdictional grant over state actions create an inference of unreviwability until after final administrative decision.
As the agency decision takes effect prior to administrative appeal and the administrative appeal happens within an entirely separate proceeding, the agency decision is sufficiently final for statutory exclusive jurisdiction.
Rulemaking notice was sufficient; there is no requirement that notice requirements be set forth in a regulation; notice allowed interested parties to participate meaningfully in a process that was actually pending.
Agency approval conditioned on subsequent permit grant was not intrinsically arbitrary and capricious.
Whether or not a Takings Clause claim can arise under the statute, there is sufficient remedy in the existing appeals process.
Statute and APA allow court to consider pendent claims arising from the state constitution.
http://www2.ca3.uscourts.gov/opinarch/162211p.pdf
As the agency decision takes effect prior to administrative appeal and the administrative appeal happens within an entirely separate proceeding, the agency decision is sufficiently final for statutory exclusive jurisdiction.
Rulemaking notice was sufficient; there is no requirement that notice requirements be set forth in a regulation; notice allowed interested parties to participate meaningfully in a process that was actually pending.
Agency approval conditioned on subsequent permit grant was not intrinsically arbitrary and capricious.
Whether or not a Takings Clause claim can arise under the statute, there is sufficient remedy in the existing appeals process.
Statute and APA allow court to consider pendent claims arising from the state constitution.
http://www2.ca3.uscourts.gov/opinarch/162211p.pdf
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
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.
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
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
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
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
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
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
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
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
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
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
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:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:16-3430:J:Wood:dis:T:fnOp:N:2210484:S:0
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
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:16-3430:J:Wood:dis:T:fnOp:N:2210484:S:0
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
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
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.
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
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
http://www.ca5.uscourts.gov/opinions/pub/15/15-41476-CR0.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
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
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.
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
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
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
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
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
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
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
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
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.
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/
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
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/
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/
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
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
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:
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
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
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
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
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
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/
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/
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: 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
Substantively, the sentence was within the encincture of the court's discretion.
http://media.ca1.uscourts.gov/pdf.opinions/17-1212P-01A.pdf
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
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
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/
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
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
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
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
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
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/
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
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: 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/
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
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
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
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
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
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
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
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
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/
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/
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
Judges shouldn't be asked to hunt for truffles.
http://media.ca1.uscourts.gov/pdf.opinions/17-2076U-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
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
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
http://media.ca1.uscourts.gov/pdf.opinions/15-1981P-01A.pdf
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