Seventh Circuit: Ron Morris v. BNSF Railway Company

 

Comparator evidence in Title VII claim was not legally insuffient for being descriptions of individual comparators rather than statistical analysis of the discovery data.

Manager who made the discriminatory adjudication decision need not have been involved in ending the employment of the plaintiff, or even the unwitting dupe of those who did.  The sole question is whether the plaintiff lost his job due to his race.

Business judgment jury instruction distinguishing discrimination from business judgment calls was not required as a matter of law.

District court's exclusion of witnesses on a late-amended list did not have to be analyzed in terms of the rule for information otherwise available to the other party; the relevant information was that they were to testify, and the court could rule that the notice was too late.

No error in back pay, given mitigation; no error in punitive damages, even given the existece of written policies against discrimination; no error in denial of reinstatiment given facts.

Ron Morris v. BNSF Railway Company

Seventh Circuit: USA v. Latasha Gamble

 

No clear error in sentencing court's determination that, by a preponderance of the facts, a functioning gun was used in the commission of the robbery.

5A claim properly preserved despite not being raised below, since the theory was that the sentencing factor found by a preponderance took into consideration deft's lack of testimony about the possession of the firearm.

Deft's misrepresentations waived 5A protections.

USA v.  Latasha Gamble

Seventh Circuit: Maria Mercedes Lopez Garcia v. William P. Barr

 

As the proffered evidence would merely have established that the foreign country had high levels of crime and violence, the agency did not abuse its discretion in declining to reopen a previously adjudicated immigration claim.

Maria Mercedes Lopez Garcia v. William P. Barr

Seventh Circuit: Delores Henry v. Melody Hulett

 

During visual inspections of the bodies of  convicted prisoners and pretrial detainees, the Fouth Amendment protects some right of bodily privacy.

Where such a search is used as punishment, the 8th Amendment is implicated.

In the absece of evidence that administrators have exaggerated the justification for the search, wide-ranging deference to the administrator.

Reasonableness hinges on scope, manner, justication, and place.

Claim for qualified immunity not raised in motion for summary judgment is waived for present appeal, but can be asserted on remand.  Waived defenses cannot be raised on appeal, forfeited defenses can be reviewed for plain error.

Remedy of decertification of class would require a cross-appeal.

Delores Henry v. Melody Hulett

Sixth Circuit: A. K. v. Durham Sch. Servs., L.P.

 

As during the trial the appellant didn't argue the relevance of the excluded evidence to comparative negligence factors (including risk avoidance), and the jury wasn't instructed on these factors, no material harm from the exclusion of employee handbook, given that the verdict found negligence, but less than a preponderance, barring any recovery under comparative negligence.

Similarly, appellant didn't argue below that the excluded expert testimony would be useful in allocating fault, so no material hamr from exclusion.

Dissent:

As comparative negligence is simply the degree of negligence, arguing negligence below suffices to consider the harm.  Per precedent, court should have a fair assurance of the error not being dispositive.

A. K. v. Durham Sch. Servs., L.P. 

Fifth Circuit: Michelle Cochran v. SEC, et al

 

Given the intent of the statute and the possibility of resolving the question against the agency on non-constitutional grounds, the statutory post-enforcement judicial review provision strips subjects of agency civil procedings of general federal question right of intelocutory Article III review challenging the constitutionality of the appointment and removal scheme of the ALJ.

Dissent in part:

Case distinguished from precedent and from the type contemplated by the jurisdiction-strip statute; challenge to the ALJ appointment scheme doesn't implicate constitutional avoidance, outside agency expertise.

Michelle Cochran v. SEC, et al

Fourth Circuit: US v. James Cobb

 

Warrant was sufficiently particular, as it specified the device to be searched and the offense for which the search was seeking evidence.

It would not have been reasonable to require the warrant affiant to explain where in the computer file structure the evidence was to be found.

Catch-all provision in warrant authorizing seizure of evidence of any and all other crimes was overbroad, but the remedy is to sever it from the otherwise sufficiently particular warrant.

Circuit precedent compels admissibility of evidence from plain view exception in a computer search.

Dissent:

Police had a sufficient theory of the case to explain the type of thing that they were looking for in the search.

If the warrant was flawed, plain view is out, since police could only seize the device.

No good faith exception for facially flawed warrant. 

US v. James Cobb

Fourth Circuit: Howard County, Maryland v. FAA

 

Administrative procedural challenge untimely, as the publication of the rule and subsequent change in policy started the clock, not the reply to the letter seeking administrative redress.

As the complaints to the agency were delayed and the agency offered little accommodations, there are no extraordinary circumstances justifying waiver of the time limit.

Howard County, Maryland v. FAA

Fourth Circuit: Jeffrey Quatrone v. Gannett Company, Inc.

  Plan's retention of substantial amounts of spun-off business' stock in a single stock fund states a claim against the Administrator's common law duty of prudence.

While allowing the participants to select funds can satisfy the statutory duty of diversification, it does not address common-law prudence.

Liability is possible where a frozen defined contribution plan does not timely divest the single-stock fund.

Dissent: 

Participants could allocate their investments.  The fact that prudence and diversification are codified separately means that they shouldn't be merged in common-law analysis.

[Again, folks, just my scribbling.  This is never legal advice.]

Jeffrey Quatrone v. Gannett Company, Inc.

Fourth Circuit: Colette Wilcox v. Nathan Lyons

 

Generic claim of retaliation actionable as gender discrimination under Title VII does not sound as a cause of action under S1983; Section VII explicitly includes retaliation as an actionable harm, and this would be surplussage if inherent in the right.

Circuit split flagged.

Colette Wilcox v. Nathan Lyons

Fourth Circuit: US v. Mohamad Khweis

 Sufficient attenuation in time, place, and interrogators between un-Mirandized US law enforcement intelligence questioning of US citizen in the custory of a foreign state and subsequent Mirandized admissions.  Belief that admission of guilt to a US crime was a necessary condition of being released to US custody did not make the Mirandized statements involuntary.

Conspiracy to provide support to enemy force does not involve use of force sufficient to qualify as a crime of violence.

Concur/dissent: given duration of initial interrogation, attenuation in time and place within a deliberate two-step was insufficient, deft should have been told of inadmissibility of earlier statements.  

US v. Mohamad Khweis

Third Circuit: USA v. Julious Bullock

Categorically, division of statute that criminalizes assualting, resisting, or impeding certain federal employees or officers is a crime of violence for purposes of the sentencing bump.  As the element requires a display of physical aggression, it necessarily involves a use or threatened use of force.

USA v. Julious Bullock

Second Circuit: Metzler Investment GmbH and Construction Laborers Pension Trust

 

The District Court did not abuse its discretion in denying a motion for relief from the judgment as antecedent to leave to amend the complaint, as the complaint had already been amended once, the court explained the deficiencies, and the plaintiffs chose instead to wait for discovery to vindicate the claim.  The court's requirement of newly discovered evidence was appropriate, as movant identified no other extraordinary circumstances justifying relief.

Metzler Investment GmbH and Construction Laborers Pension Trust

Second Circuit: Perkins v. Commissioner

 

Treaty with Indian nation guaranteeing free use and enjoyment of land did not create a presumption of immunity from tax as an analogue to the general exemption in later private allotment Act.

Treaty with Indian nation guaranteeing freedom from taxes and assessments on the land, construed as the nation would have understood it, does not except usage and extraction by members of the tribe from taxation -- it merely addresses the possessory interest.

Perkins v. Commissioner

First CIrcuit: US v. Mejia Romero

 

Given reasonable inferences to be drawn from the warrant application according to the deft's behoof, sufficient nexus between the property, the deft, and the alleged crime, as the whole is greater than the sum of its parts.

Offense proscibed knowing crimal activity involving a certain type and quantity of drug, not necessarily the known involvement of a certain type and quantity of drug.

US v. Mejia Romero

First Circuit: Feliciano-Munoz v. Rebarber-Ocasio

While there is authority for the idea that a motion to dismiss can be converted to a motion for summary judgment, there is no authority for the opposite, as the cour would be sua sponte lowering the threshold requirements for the movant -- the fact that a cucumber can be made into a pickle doesn't necessarily mean that a pickle can be turned into a cucumber.

District court correctly construed the allegation of misrepresentations in the amended complaint to be a claim for fraud in the inducement (dolo), and correctly applied the sophisticated purchaser defense to determine that the purchaser's reliance was not reasonable.

Feliciano-Munoz v. Rebarber-Ocasio

Federal Circuit: The Boeing Company v. US

 

Government contractor did not waive statutorily mandated offsetting payments in contract terms that elected the governing administrative regulation that prohibited such offsets, since the government counterparty to the contract was required to follow the regulation that was contrary to law.

Government would have to at minimum identify a viable avenue of judicial redress available to contractor at formation.

Tucker Act jurisdiction for an illegal exaction claim requires nonfrivolous claim that the government, in obtaining the money, has violated federal constitution, statute, or regulation -- establishing that the claim is "money mandating" is not a jurisdictional threshhold.

The Boeing Company v. US

DC Circuit: Committee on the Judiciary v. Donald McGahn, II

 

Administration official's noncompliance with unchallenged legislative subpoena in furtherance of an enumerated power of the congress is sufficient concrete injury for Article III standing.

As the rules of the House delegate the subpoena power to the committee plaintiff, the harm is sufficiently particularized.

Appearance with sought documents would redress the harm.

Absent questions of individual particularized harm, separation of powers concerns do not inherently implicate standing.

Judicial enforcement of legislative subpoenas is the longstanding practice, doesn't disrupt balancing between legislative and executive since challenges to the subpoenas can be disputed, and much of the relevant precedent deals with the standing of individual legislators.

Dissent:

Judicial interference has only been the norm for about 40 years, other mechanisms exist.

Dissent:

Justiciability implicates injury-in-fact, as the analogy between harming a person and harming a branch of government is imprecise; separation of powers is inherently a consideration proper to standing analysis; denial of enumerated prerogative opens the door too widely; would permanently entangle the DC Circuit in the oversight process; Scotus has never resolved an interbranch dispute; unlike the Senate, the House has no legislative authority to seek judicial enforcement of subpoenas; even assuming standing arguendo, House plaintiff has no statutory or equitable cause of action; judicial enforcement diminishes the threat of impeachment.

Committee on the Judiciary v. Donald McGahn, II

DC Circuit: United States House of Representatives v. Steven Mnuchin (ORDER)

 

(Denial of en banc with remand to consider intervening precedent.)

Dissent from remand:

Parties did not necessarily agree with the implied QP of the consolidated cases.  Gathering for en banc and then punting wastes resources.

Dissent from remand:

Nonjusticiable.  Especially when only raised by one chamber.  Granting en banc sua sponte prior to panel holding was rare, and presumably done to cabin the holding with respect to the facts of the companion case.

United States House of Representatives v. Steven Mnuchin (ORDER)

DC Circuit: George Johnson v. CRB (SEALED) / In re: Sealed Case

 

This is not the case that you are looking for.

George Johnson v. CRB (SEALED)

Eleventh Circuit: SMILEDIRECTCLUB, LLC v. Tanja D. Battle, et al.

 

Ruling on state-action immunity is sufficiently similar to one on qualified immunity to be the subject of interlocutory appeal as a collateral order.  (This is a "binding alternative holding.")

Pro forma acceptance of Dental Board's rulemaking by the state's executive is insufficient active supervision by the government to shield the Board from antitrust claims under the state action doctrine; similarly, such acceptance of the rulemaking does not make the change an act of the sovereign, which would be shielded from suit ipso facto.

Concur / Joined in full:

Denial of state action immunity is a question of the interpretation of the Sherman Act, not one of constitutional right, and can be addressed after final judgment, especially in cases involving private parties.  Circuit split flagged.

Dissent:

As the lower court reserved judgment on the state action immunity claim for summary judgment, when the record would be more fully developed, the denial is insufficiently final, and the order risks contradiction by subsequent development of the record prior to summary judgment.

SMILEDIRECTCLUB, LLC v. Tanja D. Battle, et al

Ninth Circuit: Arconic, Inc. v. APC Investment Co.

 

Where a statute creates a right to seek contribution to an environmental settlement or judgment but provides that such contribution must be sought within three years of the entry of judgment, seeking contributions from de minimis co-polluters that indemnify them against any future claims does not start the clock to seek other contributions within a prospective limitations period triggered by a subsequent claim against the same site.  A right to contribution can't arise until the judgment creating the liability is entered, and this division of eligible costs serves the purposes of the law

Judicial estoppel similarly does not preclude seeking a second round of contributions for a second judgment, as there's no inconsistency.

Arconic, Inc. v. APC Investment Co.

Ninth Circuit: Miguel Reynaga Hernandez v. Derrek Skinner

 

As there was no particular and objective basis for the Terry stop and the arrest of the foreign national was effectuated by handcuffing and placing into the patrol car prior to the contact with federal immigration authorities that gave probable cause for the arrest, S1983 suit against the officer states a claim.

As the actions of the Justice of the Police who called the officer to the courtroom upon leaning from a testifying witness that the plaintiff was in the country illegally were both a but/for cause and a proximate cause of the deprivation of 4A, the JP was a sufficiently integral participant for the purposes of a S1983 claim.

Circuit caselaw was clearly established at time, holding that lack of documentation or other admission of illegal presence was insufficient probable cause for an arrest for illegal entry.

Miguel Reynaga Hernandez v. Derrek Skinner

Ninth Circuit: USA v. Alexander Oriho

 

Court order to repatriate funds is sufficiently final for interlocutory review.

Order to a pretrial detainee to repatriate funds in the amount of the alleged fraud violates 5A privilege against self-incrimination, as the location of many of the funds haven't been established or suggested by the government, and the limited use immunity offered by the prosecuting jurisdiction would not protect against use of information as a link in the chain or against uses by other jurisdictions.

USA v. Alexander Oriho

Ninth Circuit: USA v. Juan Fuentes-Galvez

 

As  ensuring that the plea is knowing and voluntary under FRCrimP. Rule 11 implicates an alien deft's 5A Due Process rights, magistrate judge's plea colloquy that merely asked deft if his plea was voluntary was plain error.

USA v. Juan Fuentes-Galvez

Seventh Circuit: Todd Kurtzhals v. County of Dunn

 

Loss of reasonably expected overtime pay is sufficiently materially adverse to present an issue for trial on an ADA claim by an employee placed on paid leave.

Insufficient evidence of pretext to present an issue for trial where the employee's action facially violated workplace rules, but the employee claims that the supervisor's knowledge of employee's PTSD was a but-for cause of the adverse action.

Subsequent fitness for duty evaluation was not proscribed by statute or inconsistent with business necessity, given responsibilities of police officers.

Todd Kurtzhals v. County of Dunn

Seventh Circuit: USA v. Earl R. Orr

 

Warrant affidavit that didn't include any actual statements of the confidential informant was sufficiently backed by information from investigation, and the good faith exception would save in in any event.

Discretionary rulings during the cross of the deft -- opening the door to evidence of contraband and past convictions -- justify retrial given prior finding of improper ex parte communications between the prosecutor and the judge.

USA v. Earl R. Orr

Sixth Circuit: Todd Courser v. Keith Allard

 

Court appropriately dismissed S1983 & S1985 claims, as the constitutional interests were not pleaded with particularity.

Court appropriately did the same to state constitutional claims, as those are limited to official-capacity claims.

Alleged CFAA violations resulted in no harm, and there is no civil c/a to enforce the criminal elements of the statute.

Defamation claim was time-barred under state SOL.

To state a claim for civil conspiracy, the underlying tort harm needs to be established -- the defts can't be implicated in a tort that requires them to be the tortfeasors by a claim of conspiracy.

Other tort and RICO claims legally or factually insufficient.

Wiretap Act time-barred.

Court appropriately set aside default judgment against one deft on equitable grounds.

Todd Courser v. Keith Allard

Sixth Circuit: Zackery Beck v. Hamblen Cty., Tenn.

 

Sheriff entitled to qualified immunity as to S1983 claim arising from jail violence and overcrowding, as there was no personal knowledge of the specific circumstances that caused the particular harm, the claim does not establish that the Sheriff would be incompetent in thinking that the responses to the situation met constitutional muster, and there is no specific precedent indicating otherwise.

Zackery Beck v. Hamblen Cty., Tenn. 

Sixth Circuit: United States v. Benjamin Bradley

 

Criminal forfeiture under the statute is in personam, and therefore money judgments are permitted, despite the common law's historical aversion.

Proceeds from the crime that are subsequently disbursed to co-conspirators are a permissible basis for a forfeiture order against the deft.

No clear error in court's calculation of forfeiture, including funds possessed during the conspiracy and property acquired during the conspiracy, as deft could likely not have legitimately afforded the latter.

No Apprendi protections for criminal forfeiture determinations -- the protections are statutory.

Forfeiture not excessive under 8A.

United States v. Benjamin Bradley

Fifth Circuit: Plaquemines Parish v. Riverwood Production Co.

 

Motion to remove to federal court was untimely, as the facts underlying the claimed notice of federal subject matter were already evident in the claim prior to the amendment of claim that prompted the removal.

Plaquemines Parish v. Riverwood Production Co.

Fourth Circuit: Robert Salley v. Paul Myers

 

Where an arresting officer later initiates a nolle prosequi, and the credibility-dependent facts of the case might allow a reasonable person to find that the plaintiff was innocent, a S1983 claim for malicious prosecution presents a genuine issue for trial -- the nolle prosequi might prove to be a sufficiently favorable termination.

Robert Salley v. Paul Myers 

Second Circuit: Libertarian Party of Erie County v. Cuomo

For standing to challenge state firearms licensing scheme, plaintiffs must either apply for a license or demonstrate the futility of doing so.

11th Amendment bars claims against judges in their individual capacity when adjudicating firearms licensing applications, as the licenses issue under judicial order, although the refusals are communicated administratively.

As firearm licenses can be legitimately withheld for certain reasons, the statutory requirement of good moral character can be read to incorporate these reasons, and is therefore not unconstitutionally vague.

Licensing scheme doesn't offend Second Amendment, as there is a substantial relationship between the legitimate goals of the licensing scheme and the restrictions that it imposes.

Libertarian Party of Erie County v. Cuomo

Second Circuit: Lehman Brothers Special Financing Inc. v. Bank of America N.A.

 [If I have this right...]  Investment bank's payments to noteholders of SPV on the occasion of its pre-petition default can't be recouped in bankruptcy, as the relationship between the bank and the SPV was of the type of asset-exchange swap obligation explicitly immunized from bankruptcy's modification of contractual rights and obligations.

Lehman Brothers Special Financing Inc. v. Bank of America N.A.

Second Circuit: Lasher v. United States

 

As the order does not itself finally resolve any question on the merits and the statute provides for a second mechanism, a denial of a certificate of appealability on a motion to set aside the sentence is not a sufficiently final order for purposes of appeal.

Circuit split/tension flagged. 

Lasher v. United States

First Circuit: US v. Cotto-Flores

 

As Congress retains the power to legislate on police power matters in Puerto Rico, the amendment of the relevant statute to include commonwealths sufficiently indicated the intent of Congress that the law should apply to crimes committed entirely within the non-state commonwealth.

Sufficient evidence for conviction, as the impeachment of the witness didn't make the finder of fact's crediting of other evidence unreasonable.

Instructing the jury on the state predicate offense didn't confuse them about which offense they were weighing.

As live video testimony is only available in certain situations where the witness cannot reasonably communicate because of fear, allowing a witness to testify remotely where the fear was generalized to the situation and not specific to the deft, and the court accepted the witness' statement without adopting it as a reasoned finding, a retrial is an appropriate remedy.

Concur: 

Constitutional status of Puerto Rico is still that of an unincorporated territory, as the law creating the Commonwealth changed governance procedures rather than constitutional status, and was not a compact.

 US v. Cotto-Flores

Ninth Circuit & Federal Circuit

 There were a handful of decisions out from the 9th & Federal Circuit on Friday, but other work calls, and I need to close this window.  Possibly to be covered tomorrow, depending on how long the list is.

Again, folks, if for some reason you're reading this, you're basically watching somebody take batting practice. Don't rely; don't rely; don't rely.  Cheers.

CB

Eighth Circuit: United States v. Carlos Luna

 

Given the specific misrepresentations made, and the fact that insurers would have otherwise more carefully scrutinized the clinic, sufficient evidence for a scheme or artifice to defraud, despite the fact that some percentage of the claims were legitimate.

Restitution, and sentencing calculations should have been offset for the percentage of treatments that were medically necessary.  Forfeiture, though, looks to the gross proceeds of the criminal activity and did not have to be offset.

United States  v.  Carlos Luna

Sixth Circuit: Karst Robbins Coal Co. v. OWCP

 

Earlier administrative determination of employer's identity does not bind later adjudication under claim preclusion, since the earlier determination found no liability, and the determination of the employer's identity was therefore not essential to the decision.

Administrative regulation, state law, and equitable considerations of delay prevent an ex ante rescission of workers' compensation insurance contract, where that rescission would defeat the insurer's liability for adjudicated claims.

No 5A DP violation where the agency's administrative error was in a proceeding that eventually proved nondispositive.

Karst Robbins Coal Co. v. OWCP

Sixth Circuit: Sheila Armstrong v. Mich. Bureau of Servs. for Blind Persons

 

Arbitrator's decision that damages request was too speculative was not arbitrary or capricious, given insufficient evidence in the claim.

Federal statute providing for state administrative remedy, followed by federal arbitration, followed by Article III review provides sufficient enforcement mechanism to displace S1983 remedy.

Sheila Armstrong v. Mich. Bureau of Servs. for Blind Persons

Sixth Circuit: Alain Cuevas-Nuno v. William Barr

 

Alien's appeal citing an exceptional situation justifying sua sponte reopening of the matter did not sufficiently exhaust a claim for a statutory reopening of the matter due to exceptional circumstances.

Alain Cuevas-Nuno v. William Barr

Fifth Circuit: Donald Calhoun v. Jack Doheny Companies, Inc.

Given the evidentiary proffers of the parties at the preliminary injunction stage, state law compelled the court to attempt a reformation of the noncompete agreement as opposed to a preliminary injunction enjoining enforcement on the basis of overbreadth.

Donald Calhoun v. Jack Doheny Companies, Inc.

Fifth Circuit: Justin Atkins v. Timothy Hooper, Warden

State trial court's determination that detective's summary of statements of non-testifying witness was not inadmissible hearsay because it didn't recite the witness' words and the detective's purpose in describing the statements was to explain the course of the investigation was an unreasonable application of Supreme Court precedent.

State intermediate appeals citation referencing harmless error does not independently preserve the issue for the federal habeas claim, as the decision was looked through in favor of the reasoned decision of the lower court, and the issue was not presented in the federal collateral challenge.

Justin Atkins v. Timothy Hooper, Warden

Fifth Circuit: Six Dimensions, Incorporated v. Perficient, Inc.

 

District court "misapplied" its discretion by recognizing two contracts in its holding, but only reversing its holding as to one on the motion to reconsider due to the fact that the other party had not argued the second contract; the other party was not sufficiently put on notice by one sentence mentioning the agreement in a brief.

Statute's categorical bar on contractual restrictions on subsequent employment, followed by closely defined exceptions, creates a presumption that the statute ratifies the common law antipathy to such restrictions, rather than a rule of reason.

State consumer protection law in the state law elected in the contract doesn't apply, as there is a common law presumption against its extraterritorial exception, and no conduct harming consumers occurred in the state.

Continued possession of potential trade-secret materials from prior employer insufficient to establish acquisition under the law of the state.

Six Dimensions, Incorporated v. Perficient, Inc.

Fifth Circuit: ATOM Instrument Corporation, et al v. Petroleum Analyzer

 

District Court's interpretation of the terms of the arbitral agreement enjoining use of the technology and methods in a patent application is reviewed for plain error, as the reviewing court must make factual determinations as to whether the uses are sufficiently similar.

District court's restatement of the arbitral award did not substantially alter the law of the case.

Fees incurred prior to the filing of claim can be recovered under a fee-shifting statute where they are an attempt to resolve a threatened claim.

Court reasonably found fees to be nonsegregable as they generally advanced the litigation position.

State rules requiring party to seek contingent appellate fee award in the trial court are procedural, so the federal rule allowing award of fees by the reviewing court prevails.

ATOM Instrument Corporation, et al v. Petroleum Analyzer

Fifth Circuit: Green Valley Special Util Dist v. Donna Nelson, et al.

Dismissal with prejudice of a erroneous claim that an earlier decision of a regulatory body relied on a preempted state statute does not deprive the plaintiff of the right subsequently to assert the preemption of the statute as relied upon by another regulatory decision.

Dispute as to two of the parties is now moot, given private settlement of claims, and subsequent procedural steps and the possibility that an allegedly preempted statute might be relied upon in the future is insufficient to preserve a live case or controversy between the parties.

While the voiding of a past agency order is not obtainable under the Ex Parte Young exception to state sovereignty, subsequent enforcement actions in furtherance of such an order do state a claim.

As the suit is seeking a remedy in equity, the non-jurisdictional bar against S1983 claims against political subdivisions does not deprive the court of jurisdiction.

Statutory requirement of utility capability implies an inquiry into nearby infrastructure.

CJ, et al., Concur/Dissent: 

Federal statute defining utility service area applies to the degree that federal funds were used to construct the infrastructure.

Concur/Concur with Concur/Dissent:

Fact-bound decision on remand.

Concur:

Where a state law statute creating a private cause of action is preempted, the c/a can arise in equity, and where the claim presents a substantial question of federal law, there is federal jurisdiction.

Concur:

Although, by Bivvens analogy, S1983's exclusion of political subdivisions should extinguish a correlative implied cause of action in equity arising under Ex Parte Young, precedent sufficiently recognizes the validity of an equitable suit for prospective relief against state officials' actions that violate the federal constitution.

Green Valley Special Util Dist v. Donna Nelson, et

Fifth Circuit: Courtney Morgan v. Scott Freshour, et al

Execution of administrative warrant under the auspices of the state medical board and the subsequent preparation of a report is  entitled to the qualified immunity of law enforcement, not the absolute immunity of a prosecutor.

Claims of malicious prosecution and abuse of process are inherently tort claims, not constitutional violations, and do not sound in S1983 actions -- any underlying constitutional violation must be raised according to its own terms.

Remand for the district court to consider whether underlying plausible 4A claims were waived by the plaintiff's initial tort-based filing under notice pleading.

Courtney Morgan v. Scott Freshour, et al

Fifth Circuit: SA v. Noel Jones

 

Sufficient basis for plea to specific drug quantities, given duration of daily drug sales; sufficient basis for conspiracy plea as to buyer/seller relationship where the relationship goes on for long enough and sufficient mutual trust is established.

Court's instructions at plea colloquy did not rise to the level of plain error.

Ineffective assistance waived for not being raised below, preserved for collateral challenge.

SA v. Noel Jones

Fourth Circuit: Diana Mey v. DIRECTV, LLC

 Subsidiary user on a cell phone plan is bound by arbitration agreement referenced in electronic signature at time that the subsidiary purchased the extended service.

Contra proferentum notwithstanding, the arbitration agreement's incorporation of successors and assigns and the inherently durational nature of the contract mean that after-acquired subsidiaries are parties to the arbitration agreement.

Present dispute is within the scope of the arbitration agreement, given the statutory presumption for arbitration and the terms of the agreement compelling arbitration of all disputes and claims between the parties.

Diana Mey v. DIRECTV, LLC 

Second Circuit: Sprague v. Salisbury Bank & Tr. Co.

 

Consumer's right of action under the credit reporting statute arises through notification of the reporting agency, so a consumer's direct notification of a bank of an error in the report does not suffice to state a claim arising from the bank's statutory duty not to provide inaccurate information.

Sprague v. Salisbury Bank & Tr. Co.

Second Circuit: Osen LLC v. United States Central Command

Prior military FOIA disclosures about specific incidents did not generically waive withholding about similar incidents; the waiver doctrine requires that the waiving disclosure be identical in both specificity and matter, and different incidents are inherently different matters.

Although the military cannot, under a mosaic theory,  withhold disclosures of large amounts of data, but the disclosure is justified where the military contends that each element of the mosaic (each disclosure) might provide information about critical vulnerabilities.

Osen LLC v. United States Central Command

First Circuit: Common Cause Rhode Island v. RI Republic Party

As the state's attestation requirements for mailed-in votes is only imposed in a few states, and the state has not advanced any interest behind it, lower court's entry of consent judgement abrogating the requirement should not be stayed.  The elevated standard for stays close to an election is met, as the last election didn't have the requirement, and the state hasn't suggested that it would confuse voters.  Political party has standing to intervene for the purposes of the pending appeal.

Common Cause Rhode Island v. RI Republic Party

First Circuit: T-Mobile Northeast LLC v. The Town of Barnstable

 

"...a salmagundi of affirmative defenses."

Grounds for denial of intervention of right (or, in the alternative, permissive) did not have to be extensively described by the court -- the decision is reviewed for abuse of discretion in light of the record.

No abuse of discretion of denial of intervention of right by citizens attempting to stop cell-phone tower on church steeple where it is apparent that the existing parties will attempt to vindicate the specific statutory protections that the citizens intended to raise; the litigation strategy of the existing parties doesn't enter into the calculus.

No abuse of discretion in denial of permissive intervention, as existing parties would raise the smae issues, the putative intervenors had no cause of action under state law, and it's really important to build cell phone towers quickly.

 T-Mobile Northeast LLC v. The Town of Barnstable

Brief hiatus

Good to get back into the batting cage for a few days after finishing the dissertation.  As there are some other matters arising in the coming week, this will be, at minimum, the last update of the week.  Cheers.

-CB

Eleventh Circuit: Leon Carmichael, Sr. v. USA

Petitioner suffered no prejudice from ineffective assistance of counsel in handling a 10 year plea deal as opposed to the 40 years eventually imposed, since there was no guarantee that the deft would accept, given his desire for a firm offer, and the terms of "super cooperation" were vague enough that the parameters of deft's obligations were unclear, and the expectations of the govt could not be defined before entering into the material cooperation and determining the capacity of the deft to assist.  

Sufficient evidence in record that deft might not have accepted the offer of 20 years; consultations  with counsel were after the fact.  General post-trial and totality claims similarly insufficiently supported.

Leon Carmichael, Sr. v. USA

Tenth Circuit: Frappied v. Affinity Gaming Black Hawk

Mixed claims sounding in both gender and age are cognizable under Title VII.

Clam sufficiently states the age and gender claim by reciting the gender of the plaintiffs and that they are older than 40.

~96% chance of firings being non-random across age and gender suffices to create a plausible inference of discrimination.

Even given the statistical possibility of discrimination, no facts raising an inference of discrimination on the basis of gender were pleaded, so the non-random employment actions are susceptible of other explanations.

Given statistical analysis of terminations and the demographics of the new employees hired, the suit states a claim for disparate impact under the ADEA.

Median ages of terminated and new employees suffice to state a claim for disparate treatment under the ADEA, but employer met the burden of producing a nondiscriminatory basis.  Sufficient issue for trial on whether these post-hoc rationales were pretextual.

Frappied v. Affinity Gaming Black Hawk

Tenth Circuit: Zahourek Systems v. Balanced Body University

There is a genuine dispute for trial as to whether the anatomical model is a useful article under the copyright law, since the question is not the tactile uses to which it might be put in an educational context, but rather whether its usefulness arises from the fact that it correctly depicts the human frame.

Zahourek Systems v. Balanced Body University

Ninth Circuit: Gonzalo Dominguez v. William Barr

State drug statute criminalizing manufacture and delivery is divisible, as the two are different elements, not different means.

Under modified categorical review, the statute is a valid predicates, since the state's inclusion of "conversion" in the definition of drug manufacture overlaps the federal definition of "production."

Board's adjudication took sufficient consideration of the particulars of the case.

Issue of defective notice, promptly remedies, was not jurisdictional.

Gonzalo Dominguez v. William Barr

Ninth Circuit: Linda Larson v. Andrew Saul

Skidmore deference to agency determination that military employment in the civilian sector is not within a SSA exception for wages earned wholly through military service.  Circuit split flagged.

Linda Larson v. Andrew Saul

Ninth Circuit: Michael Peirce v. Douglas Ducey

State citizen has insufficient concrete or personal harm to challenge state constitutional reallocation of assets held in trust by the state, claiming that the constitutional amendments violate the terms of the trust as defined in the federal enabling legislation.

The voluntary cessation to mootness would not apply in such a case if Congress were to ratify the change, since the alleged transgressor is the state, not the federal government.

Although there is insufficient basis for a private right of action under the federal statute, the bar is not necessarily a jurisdictional one.

Michael Peirce v. Douglas Ducey

Ninth Circuit: Skyline Wesleyan Church v. Ca. Dept. of Managed Health Care

Amended Op.

Skyline Wesleyan Church v. Ca. Dept. of Managed Health Care

Seventh Circuit: Dawn Hanson v. Chris LeVan

Allegations of politically motivated dismissal state a claim where bias is credibly alleged, and according to statute and practice, the position involved access to neither policymaking deliberations nor the politically sensitive work of the elected official.

To state a claim of a clearly established right, there is an important distinction between a murky area of the law and a well-developed but complex area of the law -- the latter allows an easier inference at the pleading stage.

Dawn Hanson v. Chris LeVan

Seventh Circuuit: USA v. Robert Hosler

Sufficient evidence of enticement under the statute where statements seem to provoke the illegal conduct -- there is no requirement that the victim's will has to be overcome.

USA v.  Robert Hosler

Seventh Circuit: USA v. Elleck Christopher Vesey

Although the state offense serving as an ACCA predicate is divisible, either prong would require that the victim be close enough to have the prospect of imminent physical harm, making the state crime a valid predicate due to its elements.  General intent crimes can serve as predicate offenses.

USA v.  Elleck Christopher Vesey

Sixth Circuit: United States v. Raheim Trice

Deft's subjective expectation that the unlocked common hallway outside his apartment door was within the curtilage of his residence was objectively unreasonable, as deft had insufficient control over the space.

Placement of a hidden camera on the hallway wall opposite the deft's door did not violate the right to privacy, as it only recorded when the deft's door was opened, only short clips of video were filmed, and the deft would not have had the power to exclude law enforcement from being there and observing the same acts, even for extended periods.

United States v. Raheim Trice

Fifth Circuit: Kevin Santos-Alvarado v. William Barr, U. S. Atty

Petitioner's explanations of inconsistencies in testimony are reasonable, but they do not compel a finding that the Immigration judge's finding of adverse credibility was one that no reasonable jurist would make.

IJ's bar on telephonic testimony didn't violate due process, as the testimony wouldn't have been dispositive, and the IJ reviewed the witness' written statement.

Kevin Santos-Alvarado v. William Barr, U. S. Atty

Fifth Circuit: USA v. Herman Sanders, et al

Insufficient basis for Habeas on Ineffective Assistance, as the prejudice from the undiscovered evidence of trauma, illness, and coercion would not have caused a single reasonable juror to change their penalty phase vote, given past threats of violence, and incriminating letters offered at trial.

Dissent:  

Quoting state penalty phase closing:  “It’s an incredibly sad tribute that when a man’s life is on the line, about the only good thing we can say about him is he’s a good artist.” 

State waived AEDPA bar on new evidence in federal collateral challenge.

Precedent on reasonable probability isn't tied to the facts of each case -- they don't present a minimum threshold for the showing.

Substantial argument that deft killed only under threat of his own death.

USA v. Herman Sanders, et al

Fifth Circuit: USA v. Charles Davis

On  SCtUS  remand for plain error review -- although the deft didn't forfeit the challenge to the imposition of concurrent statutes, the acts were arguably dissimilar and irregular enough to avoid the statute's scope, and the temporal link is thin, ergo: no abuse of discretion in imposition or level of explanation of concurrent sentences.

USA v. Charles Davis

Fifth Circuit: USA v. Herman Sanders, et al

Rivals might have been appropriately joined, as they were involved in the same acts or transactions, but no actual prejudice, given curative instruction and the fact that the potentially prejudicial testimony was a small part of the total.

Required scienter encompasses all of the elements -- "knowingly" implies that the deft knew that the victims were minors.  Lack of proof of this at trial made for a constructive amendment to the indictment.

USA v. Herman Sanders, et al

Fourth Circuit: Darlene Gibbs v. Haynes Investments, LLC

Delegation clause in arbitration agreement can be judicially reviewed where the challenge is to that clause specifically, and the challenge is made with sufficient force and specificity.

Tribal arbitration agreement is a prospective waiver of federal statutory rights where it indicates that tribal law will preempt contrary federal law.

Tribal code with civil damages provision allowing compensation of actual harm doesn't sufficiently vindicate RICO treble damages right.

Darlene Gibbs v. Haynes Investments, LLC

Fourth Circuit: Eugene Baten v. Henry McMaster

Plaintiffs challenging state's allocation of Presidential Electors en bloc have Article III standing, as they allege sufficient injury and causation; although political gerrymandering is nonjusticeable, racial gerrymandering and vote dilution claims are substantially different.

No vote dilution, as the state is a unit, and each vote within it is equally counted; this structure is baked into the Constitution, and reflected in the tiebreaking procedure in the House, where each state gets a single vote.

Freedom of Association right derives from the right to associate with the party of one's choice, not from the party's chances, or the expectation that the national party will pay much attention to you.

VRA S2 and Gingles challenge falls short, since there is not prospect of a minority majority district, the poll is for electors, not the ultimate candidates, and minority voters have equal opportunity to select candidates of their choice.

Eugene Baten v. Henry McMaster 

Third Circuit: USA v. Eric Seighman

Supervised release mandatory sentencing statute does not violate the 6th Amendment trial right, since it includes non-criminal offenses, and the one-day mandatory minimum isn't significant enough to raise constitutional concerns, and if it were, there would be no plain error in this case, since the sentence was well in excess of the minimum.

Apprendi challenge along similar lines foreclosed by precedent.

USA v. Eric Seighman

First Circuit: TLS Mgmt. and Mktg. Ser. LLC v. Rodriguez-Toledo

A client file compiled by an asserted secret process containing asserted secret insights is not itself protected as a trade secret absent a division of public and nonpublic material within it and a specific claim for certain nonpublic material or processes.

A claim of trade secret for a business process must establish more than the fact that it is not known -- the claim must also establish that it is not ascertainable from public sources.

Nondisclosure agreements implicate the same public policy concerns of the forum state as do non-compete clauses.   Here, the agreements' broad scope, including general knowledge acquired on the job, particular knowledge acquired that was already public knowledge, and information provided by third parties, make the agreements unenforceable under the public policy exception.  Courts will not rewrite or narrow the contract, so the nondisclosure agreement is void in its entirety.

 TLS Mgmt. and Mktg. Ser. LLC v. Rodriguez-Toledo

Federal Circuit: Prestonback v. US

Military cadet's agreement to recoupment of educational costs upon voluntary early end of service is a statutory agreement, not a contract with the government.

Under Skidmore deference, the government can reasonably decide that involuntary separation from the military presumptively resulted from a voluntary refusal to achieve sufficient performance reviews.

Prestonback v. US

Tenth Circuit: Independent Producers Group v. CRB

Copyright Royalty Judges'  denial of claims as a discovery sanction wasn't a violation of constitutional due process -- as the tribunal is a largely clerical creature of statute, a different calculus applies to review of discovery sanctions than is applied in Article III courts.

Although the tribunal had earlier rejected the scheme that it eventually adopted, the new information provided in the interval constituted a quantum of persuasive evidence.

Independent Producers Group v. CRB 

Tenth Circuit: United States v. Moses

The fact that a surveillance camera was operating in front of the alleged "chop shop" mechanic might have proved exculpatory at trial, but there was no need to inform the magistrate issuing the search warrant of it, as the inference would have been permissive, and a Franks hearing would have resulted only if that inference had been made; the gun found on the proprietor during the search is therefore not excluded.

United States v. Moses

Tenth Circuit: Contreras v. Dona Ana County Board

(Per Curiam summary)

CJ, concurring: 

Insufficient 8A deliberate indifference claim where prison guards didn't have subjective knowledge of risk to detainee posed by leaving the cell door controls unlocked.

The situation doesn't correspond to a clearly established right -- negligence, perhaps.

Concur in part, concurring in the judgment:

Supervisor's knowledge of the risk can't be imputed to the guards.

Not a clearly established right, so no need to reach the deliberate indifference calculus, given qualified immunity.

Although there's no qualified immunity for Monell claims, the right has to be established in order to show the need to train employees.

Concurring in part, dissenting in part:

Claims against supervisor and municipality presented genuine issue for trial on deliberate indifference.

Central question on the deliberate indifference claim is whether it was reasonable to keep the controls unlocked.

Contreras v. Dona Ana County Board

Ninth Circuit: John Heineke v. Santa Clara University

Receipt of federal funds and consequent statutory nondiscrimination mandates does not make a private university into a state actor for purposes of S1983.

John Heineke v. Santa Clara University

Ninth Circuit: Shahriar Jabbari v. Wells Fargo & Company

Where the class is in part defined by a claim arising under federal law, court does not abuse discretion by certifying the class prior to choice of law analysis, since, among other things, the underlying issues are identical,  and not every state claim will be raised in every action.

 Shahriar Jabbari v. Wells Fargo & Company

Ninth Circuit: Yassir Fazaga v. FBI

Concurrence with denial of en banc (starting at 108):

Statutory FISA ex pare in camera review speaks squarely to and therefore displaces the state secrets privilege.

Dismissal remedy not identical with the privilege.

Privilege is an evidentiary privilege, not a constitutional one.

FISA remedy not limited to when the govt is on the offensive, and the other party need not be a defendant.

Dissent from denial of en banc:

FISA review limited to discrete instances of admissibility in criminal prosecutions

Displacement of state secrets privilege by statute privileges the legislature within the balance of powers.

An executive privilege can have a Constitutional core.

FISA review limited to "such other materials," not every possible material.

Any department can invoke privilege, but only DOJ can invoke FISA.

Govt invocation of privilege insufficient for statutory trigger of FISA.

Yassir Fazaga v. FBI

Ninth Circuit: Zayn Al-Abidin Husayn v. USA

Concurrence with denial of en banc:  When assessing State Secrets privilege, courts must attempt to determine if the contested materials contain privileged information, and if so, if there is any way to segregate the non-privileged information.

This applies when the basis for discovery is the statutory obligation to assist foreign tribunals.

Facts generally known and acknowledged by heads of government cannot be considered state secrets.

Dissent from denial of en banc:    Information requested has been held to be within the privilege.

Deference to the Executive warranted on national security interests.

Third party disclosure can't waive privilege, because it belongs to the govt.

Forcing govt to confirm or deny would be harmful.

State secrets privilege not diminished when discovery directed to government contractor.

Not incidental to foreign proceeding -- the purpose of the proceeding is to discover this information.

The fact that it is being sent to a foreign tribunal changes the state secrets balancing.

Zayn Al-Abidin Husayn v. USA

Eighth Circuit: United States v. Kinzey Shaw

Degree of coordination established at trial sufficed for the conspiracy count and for calculating drug quantities from shared sales.

As the bottle tested was established to have held a certain percentage of the controlled substance analogue, it was reasonable for the court to assume that the others held the same percentage.

Deft's requests to co-conspirators in holding cell not to "tell on her" sufficed for obstruction of justice sentencing bump.

United States  v.  Kinzey Shaw

Eighth Circuit: Slawson Exploration Co., Inc. v. Nine Point Energy, LLC

A commitment to pay 10% of the oil-drilling costs to a development partner upon electing to participate in a development scheme does not sufficiently benefit the land to be considered a covenant that runs with the land and therefore binding upon successors in interest.

Recognition under state law of an easement under equitable estoppel does not establish that the state law would recognize an equitable servitude with identical burdens and benefits.

Although the contractual commitment to provide a portion of the development costs is a benefit, it doesn't sufficiently arise from the land to be considered a property interest.

Slawson Exploration Co., Inc.  v.  Nine Point Energy, LLC

Eighth Circuit: LM Insurance Corporation v. Dubuque Barge and Fleeting Svc

A seaman normally excluded from the company's Workman's Compensation plan does not stand outside that exclusion for purposes of calculating premiums due by the fact that his or her work might be reclassified as covered work.  If that were to happen, the company would subsequently be compelled to list them as a covered employee.

LM Insurance Corporation  v.  Dubuque Barge and Fleeting Svc

Eighth Circuit: Damon O'Neil v. United States

No ineffective assistance for not seeking Franks hearing given incorrect name provided by search warrant affiant, as there was sufficient evidence of drug activity at the residence, even absent the identities of the suspects provided by the affiant.

Magistrate's omission of check-bo indicating the reason for the affiant's reliability was not fatal to the warrant, as the general endorsement was signed.

No ineffective assistance on not challenging cell phone search, as it was two years in advance of Riley.

Police affidavit furnished during collateral challenge indicating that deft had been Mirandized prior to confession suffices against Strickland challenge, as there was no indication that trial counsel knew or should have known that the deft claimed that he hadn't been read his rights.

Damon O'Neil  v.  United States

Eighth Circuit: United States v. Jovan Harris

Repeated purchases of large amounts of drugs suffice to establish that there was more than an abstract buyer-seller relationship; there was therefore sufficient evidence for the conspiracy count.

Where there is proof of the drug sale, proof of the death or serious bodily injury, and circumstantial evidence that the two were related, a rational finder of fact might conclude that the sale was of the drugs that caused the death or serious bodily injury.  Same if victim testifies that they were "pretty sure" that they bought the drugs in question from the deft.

Where one deft actually enters into the transaction and another leaves the drugs in the WC for the customer, there is sufficient evidence for the finder of fact to conclude that the drugs were purchased from the latter.

United States  v.  Jovan Harris

Seventh Circuit: Elijah Manuel v. Nick Nalley

Retaliation claim arising from prison administrator's search of inmate's cell nine minutes after he mentioned the possibility of filing a complaint against the administrator does not present a genuine issue of material fact for trial, as there had been a report two weeks previous indicating contraband in the cell.

Elijah Manuel v. Nick Nalley

Seventh Circuit: Central States Southeast and S v. Shelby Haynes

Where an ERISA third party beneficiary who becomes an adult between the coverage date and the date on which the paid claim arises wins a subsequent tort claim related to the covered injury, they are bound to any equitable repayment of the fiduciary specified in the Plan, as acceptance of the benefit signified assent to the terms of the Plan.

(Interesting Easterbrook cognomen for S. Ct. U.S.: "The Justices.")

Central States Southeast and S v.  Shelby Haynes

Seventh Circuit: USA v. Finas Glenn

Given the audio-visual recordings of the purchase of drugs at the residence, there was sufficient probable cause for the warrant, despite the omission of credibility indicia in the affidavit.  Delay between the purchase and the warrant was justified in order to conceal the identity of the confidential informant.

USA v. Finas Glenn

Seventh Circuit: Angela Tonyan v. Dunham's Athleisure

Given empirical practice and the business model of the company, the employer's two documented lists of essential qualifications for the job suffice to deny the ADA claim.  Even if the employee were to delegate those tasks, it would amount is substantial enough that it would amount to a delegation of the job itself.

Angela Tonyan v.  Dunham's Athleisure 

Seventh Circuit: Daniel Sarauer v. International Association

Denial of remand appropriate under the embedded federal question doctrine where the case turns upon the renewal or modification date of a CBA.

Because the CBA came into effect subsequent to ratification regardless of formal execution, the relevant date as to formation is the ratification date.

Claim for wages under the generic wage statute is preempted by the CBA, together with its exhaustion requirements.

Daniel Sarauer v. International Association

Seventh Circuit: USA v. Nathaniel Ruth

Plain error in sentencing court's increased sentence due to federal controlled substances statute, as the state predicate offense, unlike the federal statute, incorporates positional isomers of the controlled substance, which might very well exist.  The sentencing guidelines increase was correct, though, as it doesn't reference the federal statute.

USA v. Nathaniel Ruth

Sixth Circuit: United States v. Andy Maya

Sufficient evidence for possession in furtherance where the firearm is kept with funds gained from drug dealing and occasionally taken with the deft when dealing drugs.

Allowing expert testimony that a firearm being kept near drug proceeds is consistently linked to its being used to guard those funds was not an abuse of discretion, since it didn't discuss the legal aspects of the ultimate issue.

United States v. Andy Maya

Sixth Circuit: Andrei Skripkov v. William P. Barr

Unreasoned immigration decision in a mixed-motive case gets no deference; the context and substance of the prosecution of the petitioner make clear that it is related to the protected conduct.  The relevant question is not the persecutor's politics, but the politics that the petitioner was thought to have had.

Withholding of removal claims do not require petitioner to establish case around "one central reason."

Andrei Skripkov v. William P. Barr 

Fifth Circuit: State Farm Lloyds v. Janet Richards, et al

Under the law of the state, an insurer's state law duty to defend is determined by the eight corners of the most recent pleadings and the policy; extrinsic evidence about whether the incident actually occurred on the property and the true residence of the claimant are too intertwined with merits to be considered at this stage, given sufficient pleadings.

State Farm Lloyds v. Janet Richards, et al

Fourth Circuit: Douglas Fauconier v. Harold Clarke

Prisoner ADA complaint appropriately equitably tolled during exhaustion of administrative remedies required by federal statute.

Prison officials' reliance on a medical classification in the stated denial of all prospects of work states a claim under the ADA.

Prisoner pro se complaint asserting unequal treatment of comparators and lack of administrative explanation for informal denying the chance to work based on a medical classification states an Equal Protection claim.

Eleventh Amendment bars Equal Protection action for damages against prison administrators, but not the ADA action for damages, as an actual violation of the 14th amendment is alleged.

Claims against individuals barred under Qualified Immunity, since a clearly established right would be plain to every reasonable official, and such is not the case here.

Inmate transfer moots all claims for equitable relief except those against Director of agency.

Douglas Fauconier v. Harold Clarke 

Third Circuit: USA v. Jamell Birt

As the First Step Act made retroactive the modification of the statutory minimum quantities of prohibited substances, a conviction under the parallel catch-all provision where no minimum quantity is specified was not made subject to retroactive review.   Circuit Split flagged.

[Inaugurating the First Step Act tag -- seems to be a thing of late.  It's the new ACCA, perhaps.]

USA v. Jamell Birt

Second Circuit: New Hope Family Services, Inc. v. Poole

Defendant's Free Exercise claim of subtle or covert bias in the implementation of a facially neutral law suffices for additional discovery given the variations between the law and the regulation, the length of time before the regulation was amended, and indications of animus within the administrative process.

Adoption agency's speech is not government speech (e.g., advertisements, monuments, vanity plates), as it's not a traditional mode of communication with the public, and the public doesn't see the speech as government speech -- also, there's no indication that, outside the present context, the govt can control the speech.

Discovery warranted to find out whether compelling certain adoptions might cause the adoprtion agency to change its message in counseling and client contact.

Discovery warranted to determine if compliance with state mandates would harm Free Association by keeping people who would otherwise collaborate with the adoption agency might stay away.

On remand, in tailoring possible preliminary injunction, court must consider verified pleadings and affidavits as evidence of potential harms to constitutional interests.

New Hope Family Services, Inc. v. Poole

Second Circuit: UnitedHealthcare of New York, v. Lacewell

As the scheme of regulation at issue had many remedies to ensure state compliance, federal courts had jurisdiction to equitably enjoin the prospective enforcement of state agency determinations; the court therefore had subject matter jurisdiction over the claim.

As evinced by the direct and positive effect on the federal regulatory scheme, state risk allocation determinations are subject to conflict preemption by the federal statute; informal consultations with the agency were not sufficiently final to signal agency approval, and the agency's appellate-stage amicus asserting preemption is accorded Auer deference.

UnitedHealthcare of New York, v. Lacewell

Second Circuit: In Re: 21st Century Oncology Holdings, Inc.

Bankruptcy court appropriately limited employee's claim for bonuses due, as although the triggering event for the bonus had been achieved, under normal conditions, employment would have had to continue for five years beyond the event, and present obligations to the employee were only accelerated by the filing of the petition, making the acceleration of the claim the true triggering event.

In Re: 21st Century Oncology Holdings, Inc.