Third Circuit: In re: Energy Future Holdings Corp.

 

Post-petition missed merger states a subsequent claim by the missed bidder for administrative expenses under the Code, despite the fact that the missed bidder filed multiple post-attempt judicial challenges, forcing the estate initially to pay the agreed penalty for the missed transaction.  

Benefit to the estate should be considered broadly, and the missed bidder's due diligence in setting up the deal, clarifying the issues and setting a roadmap for the subsequent lesser bid plausibly conferred sufficient benefit on the estate to justify statutory priority for the administrative expenses claim.  Finder of fact will need to determine if this benefit was offset by the costs that were forced by prolonging the missed deal.

In re: Energy Future Holdings Corp. 

Second Circuit: United States of America v. Martinez

 

Holding a substantive RICO conviction -- in which the underlying offense ple(a)d(ed) to or proven involved as an element the use of force -- to be a crime of violence is, under de facto modified categorical review, not plain error.  Prior circuit precedent requiring two of the three underlying offenses to involve the use of force is dicta as to convictions with only one offense involving the use of force.

Sentence was not substantively unreasonable.

United States of America v. Martinez

Second Circuit: Int’l Techs. Mktg., Inc. v. Verint Sys., Ltd.

 

When imposing sanctions under the courts inherent powers, the court must first consider not the actual disruptive effect in the proceedings, but the intent of the offending party; a single filing offers sufficient grounds for sanctions.

Int’l Techs. Mktg., Inc. v. Verint Sys., Ltd.

First Circuit: Cuesta-Rojas v. Garland

 

Since the only record of the telephone interview was the investigator's notes, although the report of the investigator is entitled to a presumption of regularity, the discrepancies between the conversation as recorded in the notes and the other interviews of the petitioner do not offer sufficient evidence for the agency's determination.

Cuesta-Rojas v. Garland

First Circuit: US v. Concepcion

 

Re-sentencing under the statute is not a plenary re-sentencing is not a plenary review of all intervening changes in the law, but an imposition of a sentence incorporating the specific changes mandated by the statute.  The judge is then free to weigh the intervening changes in the law in the subsequent discretionary resentencing.  Affording plenary sentencing would unfairly reward those who had been convicted of the predicate offense.

Tenfold, almost equally divided circuit split flagged.

DISSENT:

No need to bifurcate the process; once the court determines the eligibility for resentencing according to the law at the time of the original sentencing, before making the gating decision, the court is then free to consider subsequent legal and factual developments before deciding on whether to grant the motion to revisit the sentence. 

US v. Concepcion

Federal Circuit: Akpeneye v. US

 

The appropriate test in this context for work under the statute is whether there are either substantial duties or a substantial amount of time and effort controlled or required by the employer and primarily for the benefit of the company, rather than whether there is complete relief from duty.

Legal conclusions given in deposition testimony on employment conditions are presumptively not binding on the deponent entity.

While standby duties can rise to the level of actual work, here, since duty posts were covered, breaks could be taken away from public access, and there was a system for compensating employees if both break times during the day were interrupted, the standby duties didn't justify a clam for overtime.

Restriction that the employees had to remain in uniform and on the premises did not cause their breaks to primarily benefit the employer.flsa

Akpeneye v. US

Eleventh Circuit: Betty M. Smith, et al v. Michael Bokor

 

Since citizenship for purposes of the local controversy exception and discretionary exception to the class-action statute is based on current domicile, court clearly erred in using demographic data of past residence in a care facility as sufficient proof of citizenship. Commonsense inference that locals tend to enter nearby homes and that few of those over 65 move out of Florida are insufficient.

Plaintiff satisfied the "significant defendant" standard even absent a showing of means, since the statute requires a party against whom significant relief may be sought, not a party against whom a significant judgment may be recovered. 

A corporation liable through vicarious liability can be a primary defendant for purpose of the CAFA discretionary exception.class

Betty M. Smith, et al v. Michael Bokor

Ninth Circuit: Walden v. Shinn

 

As the state supreme court, in affirming a denial of severance on direct review, held in the alternative that the evidence of the crimes would be cross-admissible, and this ground wan't challenged on grounds of federal law during state post-conviction proceedings, the omission of the challenge from the federal Habeas petition to the District Court waived the claim.

State court determinations that post-identification police disclosures to witnesses at photo lineup that they had arrested the suspect was not contrary to clear federal law on the question.

State court reasonably declined to infer improper suggestion when photo lineup witness identified one candidate, and the police then momentarily turned off the recording device before the witness identified the defendant.

Since the state's highest court conducted an independent review of mitigation, a federal Habeas claim against the state trial court's holding of insufficient nexus needed to identify the constitutional error in the higher court's analysis.

District court properly denied amendment of federal Habeas ineffective assistance claims subsequent to independent exhaustion in state post-conviction review after federal Habeas had commenced, since the claims did not relate to the same transactions and occurrences; no plain error in the denial of equitable tolling.

State court's determination that admission of crime scene photos was not unduly prejudicial was not an unreasonable application of federal law, since contemporaneous circuit precedent held that there was no circumstance in which admission of irrelevant or prejudicial evidence could justify the writ.  Offered stipulation was not sufficient, since nothing in the Due Process Clause holds that the government can't introduce relevant evidence on an uncontested point. 

Walden v. Shinn

Eighth Circuit: United States v. Benjamin Yackel

 

As both the state crime of aiding and abetting and the federal application of the generic offense require intentionality but contemplate presence as a means of establishing intention, the state statute is a crime of violence under the Guidelines and ACCA.

United States  v.  Benjamin Yackel

Eighth Circuit: Metropolitan Omaha Property v. City of Omaha, Nebraska

 

Municipal ordinance authorizing the inspection of a property and reciting that the inspector may seek a warrant if consent cannot be obtained doesn't violate the Fourth Amendment by authorizing warrantless entry, since under the state's rules of statutory construction, the permissive power to seek a warrant would be exercised prior to any search without consent.

As there is sufficient specificity and adequate provisions for notice and appeal, the enforcement provision is not unconstitutionally vague.

Judicial consent decree explicitly allowed for changes in the municipal code, so the procedures aren't an unlawful amendment of it.

Allegation of discrimination under federal housing law doesn't plead an intensity of discrimination sufficient to state a claim.

Metropolitan Omaha Property  v.  City of Omaha, Nebraska

Eighth Circuit: United States v. Nkajlo Vangh

 

As the motion for compassionate release arises from a statute that does not require an evidentiary hearing and is discretionary in nature, there is no possible showing of entitlement to relief that could require an evidentiary hearing on the question.

Court's evaluation of the current level of care accorded the prisoner was sufficient consideration of any extraordinary and compelling justification for release, as described in the statute.

United States  v.  Nkajlo Vangh

Seventh Circuit: Shawn Patterson v. Matt Baker

 

Treating nurse's opinion on re-cross about whether visible signs of the described prison beating would have been expected was, at worst, harmless error in allowing an expert conclusion; plaintiff had opened the door on cross by asking on redirect if painful injuries could be sustained without leaving a visible sign.

Shawn Patterson v.   Matt Baker

Seventh Circuit: Planned Parenthood of Indiana v. Kristina Box

 

Given circuit precedent on stare decisis,  a GVR citing a specific Supreme Court decision in which no opinion commands the support of a majority of the Court, the analysis of the cited plurality holding looks to the narrowest ground justifying the order.  The controlling rule is either derived from the common ground shared by the rationale of the plurality and the concurrence(s) in the judgment or from a logical subset of non-contradictory reasons that the rationales can accommodate.  The entirety of a single concurrence in the judgment does not control.

The concurrence cited here accords a previous decision stare decisis effect and disagrees with the plurality's distinguishing of the facts, so the narrowest ground is constituted by the balancing test within the prior holding.

Dissent: GVR with a named case implies a common ground in the holding.  Concurrence explicitly warned about imposing a balancing test in the substantial obstacle determination.  Controlling test is the substantial obstacle test from Casey.

Planned Parenthood of Indiana v.  Kristina Box

Seventh Circuit: Zurich American Insurance Com v. Ocwen Financial Corporation

 

At the pleadings stage, insurer did not have the duty to defend, since the natural reading of the specific conduct in the pleadings established that the complained-of conduct violated laws that were within the explicit policy exclusions, and allegations that might encompass conduct outside the exceptions were, under the state's laws, legal labels that were meaningless until defined by the facts at trial.

Zurich American Insurance Com v.  Ocwen Financial Corporation

Seventh Circuit: John Mandacina v. Frederick Entzel

 

The tendency of undisclosed potential impeachment evidence to come into view years afterward isn't a structural flaw in statutory Habeas sufficient to justify an application under the traditional form; the statutory form clock restarts from the discovery of the evidence, and second or successive petitions merely limit the petitioner to a single claim.

Although there is not a one-year limit on the older statutory form of Habeas, in such a case, equitable principles restrict abuse of the Writ.

John Mandacina v.  Frederick Entzel

Seventh Circuit: Jennifer Arguijo v. USCIS

 

Although the private support obligation for stepchildren usually ends with divorce, in public entitlement contexts such as state inheritance tax laws and SSA, the status usually doesn't imply a benefit termination context at divorce.  Since the agency hasn't offered a contrary interpretation, the step-child of the divorced abusive parent has a right to file for naturalization under the Act.

Jennifer Arguijo v. USCIS

Seventh Circuit: Susan Bennett v. Council 31

 

As the employee had expressly agreed to pay the union by authorizing the paycheck deduction, and the contract for representation was valid under the state law of the time, the First Amendment right recognized by the courts after the contract had begun did not require an explicit waiver at the time of contractual formation; even under the new standard, any employee who consents to pay can be bound to the contract.

State law defining a public sector bargaining unit and establishing an exclusive representative organization for the bargaining unit does not violate First Amendment associational rights; plaintiff is not compelled to affiliate with the representative organization, and employees are free to form advocacy groups.

Susan Bennett v. Council 31

Sixth Circuit: Vitalina Lucas Lopez v. Merrick B. Garland

 

Agency did not have to provide alien faced with removal proceedings notice in their native language; a notice in English sufficiently puts the recipient on notice that language assistance will need to be secured.

No authority to review IJ's refusal to sua sponte reopen prior proceeding that resulted in removal order in absentia.

Vitalina Lucas Lopez v. Merrick B. Garland 

Sixth Circuit: United States v. Jason Rosales

 

Sufficient evidence for drug conspiracy, since, despite the fact that drugs were never mentioned between the the two, the structure and manner of the single transaction, combined with the amount of drugs involved, would allow a reasonable finder of fact to convict.  Deft's version of events did not have to be disproven.

Given statutory mandatory minimums, sentencing instructions that looked to the whole conspiracy to establish drug quantities, rather than calculating the amount that each defendant was either responsible for or might reasonably have thought to be involved was harmless error, as there was only a single unit involved in the single transaction.

For the Obstruction of Justice sentencing bump, the court needed to make specific findings of the material hindrance to the investigation caused by deft's throwing the cell phone against the ground; although the sentence ultimately varied downward, remanded for reconsideration.

United States v. Jason Rosales

Fifth Circuit: USA v. Nelson

 

Sufficient grounds for the stop, since, at the border, a consented-to scan of the trailer had revealed it to be largely empty, but a safety seal was evident on the doors; additionally, the stop was within fifty miles of the border.

Being told that he would be free to leave after the canine unit had checked the trailer was insufficiently custodial to exclude the non-mirandized statements in the interval.

Roving stops by Immigration are justified whenever there is reasonable suspicion of any criminal activity.

USA v. Nelson

Fifth Circuit: USA v. Fackrell, et al

 Amended opinion from 3/11 -- slight change to the facts recited on page three.

USA v. Fackrell, et al

Second Circuit: Kinsey v. New York Times Co.

 

Under the state's conflicts rules, since the defamation plaintiff is domiciled in a state other than the district containing the city in which the speech occurred and in which the employment damages were sustained, the state with the strongest interest in the litigation was instead a third forum, the state in which the national newspaper is domiciled, and from which it emanated.

Since the context and structure of the quoted litigation affidavit established that the language was taken from a judicial proceeding, the state's statutory absolute privilege for reports of judicial proceedings applies.

Kinsey v. New York Times Co.

Federal Circuit: Depuy Synthes Products v. Veterinary Orthopedic

 

Sufficient jurisdiction under collateral order doctrine to review an unsealing of confidential supplier lists, as post-judgment review would be after the disclosure, and the question is important and distinct from the merits analysis, not merely a routine discovery matter.

No clear error in the unsealing of the claimed trade secret supplier lists, since, following the relevant state law on trade secrets, the party and the supplier do not have a relationship of confidence, and, additionally, the name of the supplier isn't actually a secret.

Depuy Synthes Products v. Veterinary Orthopedic

Federal Circuit: Mylan v. Janssen

 

As the general statutory grant of jurisdiction to review decisions is modified by a specific provision making the refusal to institute IPR nonreviewable, courts have no jurisdiction over the Director's delegated decision not to institute proceedings.  Since the APA does not in itself create jurisdiction, an administrative challenge is similarly unavailable.

Even though Mandamus challenging the proceeding only runs from the Federal Circuit, as the sole court with sufficient prospective jurisdiction, as there is neither a clear and undisputable right to relief nor a colorable constitutional claim, nor historical precedent sufficient to justify a Due Process claim, the writ is unavailable here.

Mylan v. Janssen

Eleventh Circuit: Alberto Ruiz v. Officer Jennifer Wing, et al.

 

Since the unauthorized pro se Rule 59 motion was timely filed, by the plain terms of the rules, the time to file an appeal ran from the time that the court disposed of the motion; no merits consideration was required in order to toll the time limit.

By agreeing to the introduction of the exhibit and referring to it several times during the trial, the plaintiff waived any challenge to admissibility.  

No plain error in inappropriate remarks at trial, as they did not impair substantial rights.

No plain error in bench questioning the plaintiff during testimony.

Motion for mistrial was not properly made when court twice expressed dissatisfaction after being told that plaintiff had a motion to make.

When a plaintiff's representation agreement covers only the trial itself, a pro se motion made after the verdict is not in order if counsel has not yet formally withdrawn or the court ordered a substitution.

Alberto Ruiz v. Officer Jennifer Wing, et al.

Ninth Circuit: Villegas Sanchez v. Garland

 

Substantial evidence for the agency's determination that women who refuse to be victimized by local gangs are not a cognizable social group, since they are not perceived by the society as a distinct group separate from the fact of their persecution.

Agency was not required to recite each of the IJ's factual findings in its opinion, where circumstances indicated that the record was comprehensively reviewed.

Villegas Sanchez v. Garland

Eghth Circuit: Cameron Zahn v. Bonnie Nygaard

As the finding is not logically inconsistent, sufficient evidence for the finder of fact's credibility determination as to competing narratives at a bench trial; although the evidence to the contrary was not discussed in the opinion, it was raised as impeachment at trial.

Cameron Zahn  v.  Bonnie Nygaard 

Eighth Circuit: United States v. Derek Clemens

 

Restitution order was not an abuse of discretion, since the causal relation to the harms incurred used to determine the level of restitution referred to harms that were foreseeable at the time of injury.

The apparent vagueness in the sentencing condition restricting the types of images the deft can possess is in fact sweeping breadth necessary to protect the public.

United States  v.  Derek Clemens

EIghth Circuit: United States v. Jorge Beltran-Estrada

 

In making a discretionary sentence reduction, the petitioner is entitled to adequate notice and an adequate opportunity to present information to the court; neither Due Process nor the statute requires a hearing.

Resentencing explanation consisting of a citation to disciplinary records and the adoption of the government's rationale was not an abuse of discretion.

United States  v.  Jorge Beltran-Estrada

Seventh Circuit: Tyrus Coleman v. Ron Neal

 

As acquittals are to be read for the least that they establish, not the most, the retrial on an attempted murder charge after an acquittal from a murder charge as to the second victim does not offend Double Jeopardy; logically there might have been reasons for the jury's decision other than the theory offered by the defendant.

In considering an Ineffective Assistance claim, it is the full course of representation that matters; the lack of impeachment on a specific point in the second trial was insufficient to, on its own, justify reversal.

Tyrus Coleman v. Ron Neal

Seventh Circuit: USA v. Rita Law

 

Given the complexity of the investigation and the need to explain it to the jury, it was not an abuse of discretion to admit the hearsay statements given to federal investigators under the "course of the investigation" exception.

Unwitnessed affidavit was properly authenticated by the details in the substance of the affidavit.

Financial threats, psychological threats, and threats to immigration status provided sufficient evidence for conviction under the statute.

The involuntary servitude sentencing factor was correctly added to the transportation charge.  Sufficient fear was created in the commission of the offense to justify the relevant sentencing factor.  Obstruction sentencing factor correctly applied for perjured affidavit. 

Below-guidelines 360 month sentence was reasonable.

USA v. Rita Law

Seventh Circuit: Anthony Kuri v. City of Chicago

 

A S1983 claim arising from pretrial detention derives from Fourth Amendment rights, not the Due Process Clause of the 14th Amendment.

Given the factual circumstances, a reasonable finder of fact could have found that the detention was not justified by probable cause.

Anthony Kuri v. City of Chicago

Seventh Circuit: Nancy Bailey v. OWCP

 

State workers compensation award calculated based on the percentage of disability and awarded as a lump sum, minus attorneys fees, with payments then disbursed as pro rata as monthly payments is a state award that statutorily offsets the subsequent federal indemnification of the federal award against the bankrupt employer where the pro rata state award weeks are within the federal benefit period.

Nancy Bailey v. OWCP

Seventh Circuit: Sonja Pennell v. Global Trust Management, LLC

 

Stress and confusion caused by the receipt of dunning letter is insufficient Article III injury for standing to sue under the debt collection statute.

Sonja Pennell v. Global Trust Management, LLC

Seventh Circuit: DRASC, Inc. v. Navistar, Inc.

 

Given actual knowledge by counsel, a class action opt-out terms letter sent by regular mail sufficed for notice, given the finding that the letter was not returned by the post office, and the testimony of the plaintiff that the letter was addressed correctly.

Given counsel's actual knowledge, court did not abuse its discretion in not permitting a late opt-out.

Since the opt-out procedure was specified in excruciating detail, and courts have an interest in uniform mechanical procedures, continuing a lawsuit on the same claim in a different forum was not a reasonable indication of a desire to opt-out.

 DRASC, Inc. v.   Navistar, Inc.

Seventh Circuit: Meretha Arnold v. Andrew Saul

As the side effects of the medications are relevant to the administrative hearing only to the degree that they affect performance of work, absent a showing that the work was actually affected, the ALJ was not required to make findings on the effects of the medications.

Meretha Arnold v. Andrew Saul 

Fifth Circuit: USA v. Fackrell, et al

 

Denial of severance in capital trial of two prisoners was not an abuse of discretion; jury presumably followed court's instructions, the extensive priors of one co-deft were not unduly prejudicial, and the co-deft's co-conspirator's admissions would have been considered anyway in a separate trial as a statement against interest.

Jury not unduly prejudiced by disclosure at trial that one co-deft had murdered another inmate by stomping on his head.

Since both defts were convicted of beating the victim to death, no plain error in finding that, even if one of them only abetted in the actual murder, the mental state would be sufficient for the death penalty.

No abuse of discretion in arguments about future dangerousness discussing other prisoners who had committed prison murders after commutation of death sentence.

No plain error in discussion of commutation of death sentence that might suggest to the jury that the ultimate responsibility for the sentence might be elsewhere.

No abuse of discretion in government's characterization of mitigation evidence as mitigation of the crime rather than penalty-phase considerations, as the government later appropriately characterized the role of mitigation evidence generally, and a curative instruction was given.

No plain error in government statements about doing justice and the deft's intent to kill.

No plain error in introduction of evidence from unmirandized psychotherapist sessions in rebuttal, since deft had placed his mental health in issue by raising past difficulties in mitigation.

No error in the Sixth Amendment deprivation of counsel during the psychotherapist's examination, as the deft did not establish that the interview was to assess future dangerousness.

Common law psychotherapist evidentiary privilege does not exist in the penalty phase of a capital trial; if it did exist, violations here would not be plain error.  Potential circuit split flagged.

No plain error in government's mitigation phase rebuttal witness' straying into discussions of present events.

Exclusion of warden's statement describing victim's conduct that led to the murder was not an abuse of discretion, as the warden was a single deft in a civil suit, and not speaking for the Bureau.

No abuse of discretion in excluding evidence of plea deal in second murder that was introduced as an aggravating factor in the penalty phase.

No plain error in introduction of acquitted conduct in future dangerousness consideration.

No error in categorical analysis of priors as aggravating factors, since the alternate holding of non-statutory aggravators would not have been perceived as less convincing if the statutory factors had been excluded.

Given circuit precedent that Hobbs Act Robbery is a crime of violence, the conviction survives as an aggravator despite the recent Supreme Court holding on the method of identifying crimes of violence by means of a statute's residual clause; nonviolent Hobbs Act Robbery would be Hobbs Act Extortion.

Jury form that requires juror to first determine the existence of a factual situation before deciding that it is mitigating does not offend the statute that says that a finding of the existence of the fact establishes the grounds of mitigation.

Court's instructions on future dangerousness did not improperly marshal the evidence for the government.

Denial of non-unanimity instruction was not an abuse of discretion; refusing to answer a jury deliberations question about non-unanimity was not error.

Conferences allegedly missing from record do not justify reversal; the conferences were neither a hearing or trial nor a judicial proceeding.

Cumulative error unavailable, since no errors were found.

USA v. Fackrell, et al

Fourth Circuit: Mountain Valley Pipeline, LLC v. Sierra Club

 

State environmental approval rulemaking wan't arbitrary and capricious;  the standards are set out in a parallel section of the Code dealing with reservoir protection, and the delay of the approval for the challenged section until the central pipeline had attained the necessary approvals was akin to moving a pipeline to avoid a stream -- a temporal rather than spatial accommodation.

As the state's clean water laws flow from the federal laws, state agency's consideration of function and use did not displace federal review.

Explanation that didn't cite the relevant standard sufficed, because it tracked the language of the relevant standard.

On remand, state must explain incongruities in finding and why the department opted for a temporary denial rather than a provisional approval.

Mountain Valley Pipeline, LLC v. Sierra Club 

Fourth Circuit: National Veterans Legal Svc v. DOD

 

As the information in the government database is open to the public by the terms of the relevant statute, the unavailability of portions of it is an injury sufficient for Article III standing.

When an agency removed all internal hearing records from public access after the discovery of personally identifiable information contrary to statute, the decision was not a final agency determination of rights and obligations susceptible to APA challenge; the present challenge is a programmatic attack on the pace of record restoration.

National Veterans Legal Svc v. DOD

Fourth Circuit: US v. James Pressley

Deft's unmirandized statements were made in an apparent situation that, if taken as true, would have been considered sufficiently custodial.  Absent any evidence in the record of counsel's strategic considerations in not attempting to suppress the confession, an evidentiary hearing is warranted for the collateral challenge, especially since the deft was, as a matter of law, prejudiced by the admission.

US v. James Pressley

Federal Circuit: Columbus Regional Hospital v. US

 

Disaster support agreement between federal agency and state was an enforceable contract, not a gratuitous provision of resources.

Nonfrivolous assertion of contractual breach by the government sufficed for Claims Court jurisdiction.

Request for assistance and project worksheets did not constitute an express contract; as there was no mutual intent to contract, there was not an implied in fact contract.

As a component of local government, hospital's claim to be a third party beneficiary of a contract between the state and the federal agency is sufficient to state a claim, since the contract named the locality.

As the funds were provided to the hospital contingently, and subject to express conditions, the recoupment of the funds was not an illegal exaction.

Although the requested recovery of funds is equitable it is materially indistinguishable from a claim for reimbursement, and the claim is essentially contractual in nature, giving clear jurisdiction to the Claims Court, an adequate non-APA judicial remedy preferred by statute.

Columbus Regional Hospital v. US

Federal Circuit: In Re: Board of Trustees

 

Claims are patent ineligible mathematical algorithms, basic processes fully disclosed in prior art, and with no real mechanical or computing architecture correlative.

In re: Board of Trustees

Federal Circuit: Santos v. NASA

 

Agency had an obligation to establish by substantial evidence that the employee's performance was subpar both after the notice of potential dismissal and before the notice of potential dismissal.  Upon sufficient showing, the burden would then shift to the employee to establish discriminatory motive.

When the employee asserted that the performance report was due to protected military service commitments, administrative review had an obligation to assess the relevant factors, rather than just saying that the case hadn't been made.

Santos v. NASA

Eleventh Circuit: Michelle Lee Helm v. Greg Carroll, et al

 

In considering whether a reasonable person would have thought that they could have walked away from an allegedly consensual encounter with the police, the race of the suspect is not a relevant factor.  This consideration would be insufficiently universal to be objective, and offends Equal protection.

Concurrence in J:

Ideally, the law would be that the police must affirmatively clarify whether a suspect is free to leave an allegedly consensual but inherently coercive encounter.  Offends Equal Protection.

Michelle Lee Helm v. Greg Carroll, et al

Eleventh Circuit: Charles K. Breland, Jr. v. USA, et al.

 

Bankruptcy court's removal of the debtor-in-possession in favor of a trustee prompted a loss of authority over the estate that constituted sufficient injury for Article III standing to challenge the removal.

Charles K. Breland, Jr. v. USA, et al.

Eighth Circuit: United States v. Hosa Howard

 

In denying the motion for reconsideration made by newly retained counsel, the court merely noted that the pro se petitioner had not advanced any arguments supporting the claim.  Denying the motion to reconsider without considering any of the arguments raised by the parties precludes meaningful appellate review, and constitutes insufficiently reasoned judicial decisionmaking.

United States  v.  Hosa Howard

Eighth Circuit: Lukeus Scott v. Key Energy Services, Inc.

 

Since, after the accident, the device manufacturer was merged into the injured employee's employer, the manufacturer can't presently be considered a third party tortfeasor, even the the person of the employer as successor in interest.

The law of the state disfavors the dual capacity exception to exclusive liability.

Dissent: The state's courts have recognized an exception where there is a distinct, separate legal persona.

Lukeus Scott  v.  Key Energy Services, Inc.

Eighth Circuit: United States v. Jack Chappell

 

Evidence of witness' subsequent admission that she was under the influence of narcotics while testifying that she was not a drug user is not new evidence sufficient to revisit the conviction, since the disclosures do not rise to the level of addressing basic competency to testify, and would at most be in for impeachment.

Government concealment of witness' mental state would not rise to the level of a Brady claim.

No abuse of discretion in refusal to grant downward variance from sentencing guidelines.

Concur in J:

The disclosures about the witness are new evidence, but aren't material.

United States  v.  Jack Chappell

Seventh Circuit: Jesus Ruiz v. USA

 

Statutory Habeas is not available to challenge convictions for which a discrete sentence was imposed when that sentence runs consecutively with multiple terms of life imprisonment that are set to run concurrently and that would not change absent some extraordinary and unexpected change in the law, as the challenged conviction would be harmless error.

Jesus Ruiz v. USA

Seventh Circuit: Kevin Pack v. Middlebury Community Schools

 

The website statement preexisting the nondisparagement agreement that applied to prospective communication, statements, and conduct did not breach the agreement, since the statement was published to the website before the agreement.

Litigation affidavit enjoyed absolute immunity from the nondisparagement terms, since it was relevant and pertinent to the matter before the court.

Statements made to plaintiff's agents posing as prospective employers did not implicate the nondisparagement agreement's limitations on communications with potential employers.

Kevin Pack v. Middlebury Community Schools

Fifth Circuit: USA v. Baltazar-Sebastian

Court's order prohibiting a released detainee's subsequent detention, since it was enforcing an earlier magistrate's holding that the detainee be released, is not within the general immigration removal of jurisdiction.

The bail reform statute does not preclude the pre-removal detention of an alien subsequent to the alien's release under the statute.

Administrative regulations prohibiting a criminal defendant from leaving the country refer to voluntary departures.

The detention does not violate the separation of powers.

Court below did not make formal findings about how the distance that lawyers had to travel related to the Sixth Amendment rights of the deft.

USA v. Baltazar-Sebastian 

Fifth Circuit: Perry v. VHS San Antonio Partners

 

Although the hospital had the authority to order the physicians' group to terminate the services of one of its employees providing services at the hospital, that single fact is insufficient to present a genuine issue of material fact for trial on the question of whether the two enterprises were sufficiently integrated to create liability under the act.

The two entities also, as a matter of law, were not joint employers of the plaintiff, as the hospital did not have the power to hire, the plaintiff set his own schedule, and the two enterprises were not economically integrated.

Plaintiff did not have a contractual relationship with the hospital sufficient for a S1981 claim, and the two entities were sufficiently distinct to establish that he wasn't a contractor of the hospital.

Perry v. VHS San Antonio Partners

Fifth Circuit: Hall CA-NV v. Old Republic

 

Since the parties agreed to remove the provision of the standard form insurance contract relating to the priority of ex ante mechanics liens, the related-back ex ante mechanics liens are not covered by the general provisions of the form contract that protect claim priority generally.

Showing of costs and limited participation in negotiations insufficient to establish loss from dual representation under duty-to-defend.

Hall CA-NV v. Old Republic

Fifth Circuit: Sierra Club v. DOI

 

Species mortality limit was not arbitrary and capricious, since the additional discussions mentioned in the agreement are superfluous to the hard take limits.

Agency's determination of the several effects of other projects and the cumulative effects of all projects in the designated region was not arbitrary and capricious.

Sierra Club v. DOI

Fourth Circuit: Vernon Earle v. Shreves

 

Bivvens remedy not available for a prisoner's grievance retaliation claim under the First Amendment.

Vernon Earle v. Shreves

Fourth Circuit: Phillip Alig v. Quicken Loans Inc.

The class claim is sufficiently predominant, since all of the customers--even those who benefited--paid the fee; determining individual statute of limitations issues would be merely ministerial; defendant's general concealment underlay each instance of fraudulent inducement; appraisal variance would be merely ministerial; and the statutory damages are uniform.

Although the agreement's reference to a timely appraisal was insufficient guarantee to create a contract, the taking of a security deposit for the purposes of verifying identity and credit formed a binding contract.

Under the state's law, the covenant of good faith and fair dealing is relevant only to the analysis of actual breach of contract.

Concealment of potential improper contact with appraisers was sufficiently proximate to the formation of the agreement with the homeowners to qualify as unconscionable inducement under the state's statute.

Dissent:

Practice was customary in the industry; no actual inducement; communications with the appraiser did not breach the agreement to provide an appraisal.

Phillip Alig v. Quicken Loans Inc.

Second Circuit: Reynolds v. Quiros, et al.

 

Actual conditions of prisoner's solitary confinement present a genuine issue of material fact for trial.

State statute imposing conditions for the incarceration of prisoners whose death sentences have been commuted, passed after the legislative elimination of the death penalty and prior to the judicial determination that those already sentenced to death should have their sentences commuted, was an unconstitutional Bill of Attainder, imposing specific punishments on implicitly designated specific persons without the benefit of trial.

Classification of prisoner as a higher security threat than others similarly situated had no rational basis, and violated Equal Protection.

Concurrence:

Eighth Amendment claims of mistreatment of prisoners require an element of subjective intent.

Reynolds v. Quiros, et al.

Second Circuit: Cho et al. v. BlackBerry Ltd. et al.

 

Since the named members of a putative class didn't individually join the appeal, they can't participate in any action subsequent to the disposition of the appeal; they were not included in their capacity as others similarly situated, although they might have been included if the appeal had been filed by a putative representative et al.

Since the defendant added subsequent to the appeal was in privity with the original defendants and the cause of action arose from the same transaction or occurrence, res judicata prevents the named non-appellants from pursuing their claims against the new party.

Court did not abuse discretion in denying the motion to reconsider.

Cho et al. v. BlackBerry Ltd. et al.

Second Circuit: James Domen v. Vimeo, Inc.

 

Since the video streaming service's removal of the Plaintiff's account was a good faith effort to enforce an internal policy that was aimed at removing objectionable content, the federal statutory safe-harbor applies, preempting state antidiscrimination laws and state public forum content-neutrality laws.

James Domen v. Vimeo, Inc

Second Circuit: Tingling v. Educ. Credit Mgmt. Corp.

 

Docketing of hand-written documentation of pretrial conference report and stipulations prior to its being typed up meant that revisions other than the typing would require the modification of the order into which the report and stipulations were incorporated.

Plaintiff did not make sufficient showing of undue hardship to justify discharge of the statutorily protected debt. 

Tingling v. Educ. Credit Mgmt. Corp.

Federal Circuit: Edgewell v. Mnuchkin

 

Court erred in assigning the term the meaning it served in the description of the function of the device within an unclaimed surrounding mechanism.

The doctrine of equivalents is not a binary question of vitiation, but a reasoned inquiry that looks to the degree that the second device performs the same function, in the same way, and achieves the same result.

Again, perhaps.  Not really at all Patent-savvy in this quarter.

Edgewell v. Mnuchkin

Federal Circuit: Taylor v. Dept. of the Interior

 

Although the claim sounds in contract, the requested relief requires reversal of agency determinations under the APA; the proper forum is therefore District Court, not the Court of Federal Claims.

Taylor v. Dept. of the Interior

Federal Circuit: Uniloc v. Facebook

 

Judicial review of a decision on estoppel during the institution and pendency of an IPR is appropriate, because the estoppel statute applies to the duration of the action, not just the decision to institute proceedings.

Board correctly did not estop the party's claim, since there was no evidence of actual control and direction between the interested party and the litigating party, and the pre-existing relationship was not one that suggested coordinated action.

Given the plain language of the statute, the claim that the interested party was not estopped from raising was fair, as that specific claim had not arisen in the earlier action.

Substantial evidence for Board's obviousness and disclosure determinations.

(Perhaps.  We don't know many things, but we especially don't know Patents.  As always, entertainment value only.)

Uniloc v. Facebook

Federal Circuit: Brenner v. DVA

Administrative remedy for unfavorable employment action must consider the penalty imposed,  not because it has the power to mitigate it, but because it forms part of the substance of the decision.

Error for the agency to remove an employee under the non-retroactive statute for conduct occurring before the statute became law.

Brenner v. DVA

DC Circuit: Margaret Kwoka v. IRS

 

As the FOIA requestor's intention was to write a book published by an academic press, it was an abuse of discretion to hold that the motive for the request was commercial in nature.

Margaret Kwoka v. IRS

Eleventh Circuit: Michelle Lee Helm v. Greg Carroll, et al

 

Even if no circuit precedent clearly defined the right, applying a taser to a teenager having a seizure while being held down by several police officers falls within the "obvious clarity" exception; the denial of qualified immunity was therefore appropriate.

The lack of intervention from the officer's supervisors derivatively falls within the same exception.

Even if the officer had arguable probable cause for detaining the teenager having a seizure, the manner of detention also enters into the S1983 calculus.

Michelle Lee Helm v. Greg Carroll, et al

Tenth Circuit: Birhanu v. Wilkinson

 

By considering the information provided and holding a hearing on the matter, the immigration judge took care in determining the competency of the pro se alien defendant sufficient to assure fundamental rights of Due Process; although the alien reported that the voices that he was hearing in his head disturbed his thought processes, his demeanor appeared sufficiently lucid and responsive.

Right to counsel claim under the Rehabilitation Act required administrative exhaustion.

For immigration law purposes, recklessly threatening substantial property damage with actual intent to interrupt public access to a portion of the building is a crime of moral turpitude.  The specific intent of the state statute is a sufficiently aggravating factor under circuit precedent.

Although subjective ability to dissociate and reflect is relevant to determining whether two acts are divisible, a three day gap sufficed to establish the division as a matter of law.

Chevron deference to agency on the question of whether the agency should consider the insanity element of the criminal plea, as a prior apparently contradictory agency interpretation spoke to the evidentiary bounds of the agency's consideration, and the cited opinion addressed the appropriate substantive grounds for the agency's consideration.

Concur/dissent:

Agency shoudl have considered mental health element of plea in relevant conviction; arbitrary application of precedent dejustifies deference.

Birhanu v. Wilkinson

Tenth Circuit: United States v. Jefferson

 

Vacatur with instructions from the Supreme Court of the US presents a jurisdictional limit to the review on remand.

Unambiguously, the sentencing reform statute applied only to those sentences imposed after its effective date; cases pending on direct or collateral review where the sentence had already been imposed were not affected by the statute.

United States v. Jefferson

Ninth Circuit: Michael Kaiser v. Cascade Capital

 

Even if made in a good faith belief in the validity of the claim, lawsuits and communications made to collect time-barred debts (and that do not acknowledge the lapsed time limit) are both unfair and misleading, and incur strict liability under the federal debt collection law.  A mistake about the state law statute of limitations underlying the claim is a mistake of fact that might qualify as an exculpatory bona fide error under the federal law.

Michael Kaiser v. Cascade Capital

Eighth Circuit: Javier Gonzalez v. Monty Wilkinson

 

Where the meaning of the state statute is plain, categorical review of state criminal statute for purpose of immigration law does not require that the petitioner establish that there is a reasonable probability of prosecution for conduct falling within the state statute but not within the scope of its federal analogue.

Javier Gonzalez  v.  Monty Wilkinson

Eighth Circuit: United States v. Rene Johnson

 

The statute regulating time from indictment to trial cannot be tolled for general court congestion, even when the Judicial Conference has declared an emergency in that district.  Remand to decide whether dismissal is with prejudice.

Anxiety is insufficient prejudice upon which to base a Sixth Amendment speedy trial claim.

Concurrence:  Delay was due to counsel's last minute disclosures, not general congestion.

As there was no contemporaneous objection to the exclusion from statutory calculations, review should be for plain error.

(Not labelled a concurrence in judgment, but begins by explicitly agreeing with the relief and then setting forth different reasoning.)

United States  v.  Rene Johnson

Seventh Circuit: Medical Protective Company v. American International

 

Actionable refusal of settlement was within the terms of the policy as an act deemed wrongful by timely reporting, despite an earlier holding of the court that the act was ultimately not wrongful as defined by a separate exclusion within the policy.

As a claim is an assertion of an existing right, demands for damages and indemnification prior to the change in the law that created the right of recovery against the plaintiff were not considered claims under the policy.

Medical Protective Company  v.   American International

Seventh Circuit: Owner-Operator Independent Drivers v. Eric Holcomb

 

Rise in tolls ultimately directed to state treasury rather than maintenance does not unconstitutionally burden interstate commerce, because the state is acting as a marketplace participant; at the time of the Founding, roads were largely private, and the state has a right to its revenues.  

Disproportionate effect on interstate commerce was not established, and is irrelevant to the state's actions as market participant.

Owner-Operator Independent Drivers v.   Eric Holcomb

Seventh Circuit: USA v. Trent Slone

 

Given the proximity of the guns to the drugs in the deft's domain, sufficient evidence to establish a sentencing bump by a preponderance, despite acquittal on the drug trafficking charge.

USA v. Trent Slone

Sixth Circuit: United States v. John Tomes, Jr.

 

Although the denial of compassionate release during the pandemic looked to commentary in the guidelines that applies only to motions by the government, it also individually considered the other appropriate factors, and the denial can be upheld on those grounds.

United States v. John Tomes, Jr.

Sixth Circuit: Derrick Taylor v. Angela Owens

 

The modification to the Habeas statute requiring that the application be filed with the sentencing court is jurisdictional limit on the original statute.

Derrick Taylor v. Angela Owens 

Fifth Circuit: Aldridge, et al v. MS Dept of Corrections, et al

 

Given the savings clause, the federal statute doesn't create field preemption.

Although employees can seek relief under state or federal statutes, the federal statute preempts any state tort claims within its scope.

Aldridge, et al v. MS Dept of Corrections, et al.

Fifth Circuit: Byrd v. Lamb

 

Bivvens not extended to cover a federal agent's preventing the plaintiff from leaving a parking lot and then using excessive force to effect an unlawful seizure.  

Byrd v. Lamb

Fifth Circuit: USA v. Emakoji

 

Court's order requiring an in-person appearance at arraignment is not subject to interlocutory review under the criminal collateral order rule.

Court's requirement that the deft secure housing within the district of the court was a reasonable amendment to the release conditions, given the deft's reluctance to travel during a time of pandemic disease.  Due Process did not require a hearing, or a finding of a violation of the prior conditions.

Concur/dissent: a requirement to secure new housing four days before an arraignment with presumptive incarceration isn't ripe for review, as a subsequent release condition wouldn't be a modification but a new finding.

Dicta: Court did not sufficiently take into account administrative determination that in-person hearings presented a danger. 

USA v. Emakoji

Fifth Circuit: Williams, et al v. Lockheed Martin

 

Federal officer removal was appropriate, because at the time of removal, there was a colorable claim that the government was specific and complete, the contractor could not deviate from it, and it was implemented under the direct supervision of the government, and the government had more comprehensive knowledge of the risk at issue than did the contractor.

Challenges to discovery orders must identify the crucial evidence that would otherwise have been obtained.

As the expert testimony claiming exposure to the substance prior to the enactment of the statutory exclusive remedy was derived from factual assumptions rather than actual evidence, the statute provides the sole remedy.

Communication with an employee of a represented corporate party whose statements might be imputed to the corporate party wasn't an abuse of discretion, but as fee-shifting isn't in the state's rules, imposing a monetary sanction would require a finding of either bad faith or willful disobedience of a court's order.

Williams, et al v. Lockheed Martin

Second Circuit: People of the State of New York v. Griepp

Clear error to exclude evidence in preliminary injunction hearing as hearsay following finding that the situation lacked sufficient urgency to justify admitting hearsay; in a preliminary injunction hearing, the hearsay nature of the evidence always goes to the weight of the evidence.

Clear error to exclude a category of evidence in a preliminary injunction hearing after determining that two documents of the type were unreliable, and another after being unable to determine the reliability of that type of evidence (latter harmless error).  Everything in for appropriate weight. 

For purposes of the obstruction statutes, a minor delay is not per se a reasonable obstruction; the court must still determine if the delay was a reasonable one.

Placement of signs on a sidewalk in a manner that does not functionally exclude access can still be an attempt to intimidate or obstruct within the terms of the statute, even if no pedestrians appear.

When a protester's actions necessitate that an escort step in front of the protected person, the protester has caused the physical obstruction defined in the statute.

Regardless of the consensual nature of the conversation, speaking to someone inside a vehicle through an open door or placing hands on the car while speaking impeded the car from driving away, and could be considered obstruction.

When taken in the context of recent local violence, and given the subjective fear that the listeners felt, stating that death might come at any time would objectively be taken as a true threat not protected by the First Amendment; similar statements conjoined with an exhortation to repent, or referencing disasters distinct from recent local violence present a different question.

As the decision to have an abortion involves a formidable and poignant process, protesters' seeking to force their ideals on patients approaching a facility creates an inference of intent to harass, annoy or alarm.  An explicit or implicit request to be left alone dispels the legitimate intent of potential interlocutors.

Likely repetition of the violations of the statutes suffices to establish irreparable harm for the injunction.

In the interests of judicial economy, cross-appeal of non-movants' early motions not referenced in the memorandum denying the preliminary injunction are appropriately addressed in the appeal of the denial of the injunction under pendent jurisdiction.

Abortion facility speech limitations are content neutral, as they apply to every abortion facility in any context.

Statutes not void for vagueness, given general definitions in criminal code.

Municipal statute creating a cause of action for "any person" legitimizes a parens patriae action by the state in which the municipality is located; sufficient quasi-sovereign interest demonstrated here.

Concurrence:

Municipal statute is a state statute, since the municipality is a creation of the state; certifying the question to the state would be necessary to determine if the state could act parens patriae by its own statute.

Concur/Dissent:

General dissent as to not honoring the determinations of the finder of fact.

Since the cause of action doesn't list government bodies and the rest of the code generally does, and the statute designates a specific enforcement entity with power to seek an injunction, the state does not have parens patriae standing.

Courts are permitted to consider hearsay in a preliminary injunction hearing; they are not required to do so.

Statute's restriction on making access unreasonably difficult or dangerous explicitly excludes de minimis interference.  Concluding otherwise impermissibly burdens speech. 

Finder of fact held that a reasonable observer familiar with the speaker's preaching would not have interpreted the statements about impending death as true threats.

Irreparable harm finding requires ongoing plans and activities.

People of the State of New York v. Griepp

Federal Circuit: Meidinger v. US

 

Completing a form to report tax noncompliance under a statute that authorizes the payment to the reporter of the portion of the monies recovered does not create an enforceable contract with the government; a contract arises only if the reporter and the government specifically negotiate its terms.

Meidinger v. US

Ninth Circuit: Lee Rice II v. Dale Morehouse

 

Appeal sufficiently indicated its scope despite not mentioning the collateral order at issue; additionally, defts did not suffer prejudice by the omission.

Reasonable finder of fact could have determined that the use of force to trip up a suspect while holding his arms was a use of excessive force under the Fourth Amendment.

Circuit precedent on the right to be free of nontrivial force when engaging in passive resistance sufficiently clearly established.

Lee Rice II v. Dale Morehouse

Eighth Circuit: United States v. Jonas Ross, III

 

Sufficient evidence for a reasonable finder of fact to conclude that the deft sold the drugs that caused the death, although the trace amounts found afterward were of the mixture's component parts.

 United States  v.  Jonas Ross, III

Eighth Circuit: United States v. Timothy Burns

 

As the executive had access to the financials, exercised purchasing authority, and ran the day-to-day operations, evidence was sufficient for a finding of willful blindness as to the representations; also, the willful blindness instruction was appropriate.

Indictment alleging two codefts engaged in conspiracy and wire fraud was not constructively amended by a theory of the case that the offenses were committed with others as opposed to each other, since the text of the law refers to a single defendant.

No clear error in the court's refusal to give an explicit unanimity instruction, or in not explicitly defining the scienter alternatives to willful blindness.

Court's not polling the jury can't be raised on appeal when explicitly waived at trial.

United States  v.  Timothy Burns

Eighth Circuit: Nicole Smith v. Stewart, Zlimen & Jungers, Ltd

 

Requests for expenses in the current litigation did not amount to a false statement of monies owed under the federal debt collection act.

Lawsuit that didn't meet the evidentiary burden for establishing the assignment of claims didn't offend the federal debt collection act.

Nicole Smith  v.  Stewart, Zlimen & Jungers, Ltd

(8th continues its run on "Cleaned Up," with five uses in 12 pages.)

Eighth Circuit: Azarax, Inc. v. William Syverson

 

Where a past admission against interest can't be rebutted due to a discovery sanction against the speaker, the statement must be taken at face value.

As the validity of the assignment of the interest hinged on the application of foreign law, a motion to consider foreign law in the proceeding was untimely when made at the summary judgement stage.

Azarax, Inc.  v.  William Syverson

Eighth Circuit: United States v. Arlando Staten

 

Agent testimony sufficient to establish by a preponderance that the deft committed bank robberies during supervised release; within-guidelines sentence wasn't an abuse of discretion.

United States  v.  Arlando Staten

Seventh Circuit: James Sweeney v. Kwame Raoul

Although the union is compelled by state law to serve as the exclusive bargaining agent for the relevant unit, including its nonmembers, and the courts have recently held that it is unable to assess compulsory representation fees on nonmembers, an injury giving Article III standing for a First Amendment challenge to the state statute would require an actual instance of a nonmember requiring representation under the statute, and standing would also require that a named defendant threatened an imminent enforcement of the state law.

James Sweeney v.  Kwame Raoul

Seventh Circuit: Jason Gonzales v. Michael J. Madigan

Assuming, without extending the precedent, that political deceit can offend the Equal Protection Clause, the conduct alleged was sufficiently publicly known to allow the voters a free choice.

The District Court judge did not violate the First Amendment in holding that the plaintiff's campaign speech had sufficiently revealed the alleged deceit.

Jason Gonzales v. Michael J. Madigan

Fifth Circuit: Wright v. Un Pac RR

 

Although a plaintiff alleging a discriminatory retaliation need not provide evidence at the pleading stage, the facts described in the pleadings must allow an inference that the conduct alleged resulted from the protected conduct.

As the termination resulted from a situation that was a matter of past practice, the deviation from that practice concerned an implied term of the existing CBA, and was therefore appropriately categorized as a minor dispute subject to arbitration.

State law antidiscrimination provisions preempted by federal labor law requiring arbitration.

Wright v. Un Pac RR

Fifth Circuit: Le v. Exeter Fin, et al

 

As the vested equity valuation was contractually assigned to the Board of Directors, a motion for a discovery continuance to reach outside auditors' valuations of the vested equity was untimely; an appeal challenging the exclusion of evidence must specifically identify the evidence and the legal standard.

Non-zero determinations of vested equity at time of hiring and in subsequent audits did not make the Board's determination of nil value unreasonable.

An unenforceable agreement to later agree on a severance agreement did not create any obligation on either party when severance happened prior to the formation of the agreement.

Claim of fraudulent inducement under state law requires actual reliance.

Misrepresentations of prior employment foreclose equitable relief in quantum meruit.

Discovery stipulation between parties during discovery was inappropriate, as the unilateral declaration of secret materials prevents the court from conducting the necessary public interest balancing when deciding whether the record should be sealed.

Le v. Exeter Fin, et al

Fifth Circuit: USA v. Masha

 

Statute on the misuse of passports can't be extended to counterfeit passports.

No plain error in lay identification of deft in photos, since the photos were from a time at which the witness knew the defendant.

No clear error in sentencing determination that all of the funds in the deft's account were proceeds of fraud.

USA v. Masha

Fifth Circuit: Edwards Family Partnership, et al v. Johnson, et al

 

Under the bankruptcy statute, the Trustee's interest in litigation relating to the estate is not pecuniary, but rather the obligation to administer the estate, and is therefore not extinguished by an agreement between rival claimants.

The reasonableness of litigation expenses is determined by asking whether it was an abuse of discretion at the time of the expense, not by an after the fact determination of the merits of the claim.

Edwards Family Partnership, et al v. Johnson, et al

Fifth Circuit: St. Charles Hosp, et al v. LA Health Srv, et al

 

Pleadings categorically excluding any claims against a federal officer are generally to be honored, except where they are artful exercises in pleading designed to circumvent jurisdiction.

For purposes of federal officer removal from state court, the conduct that caused the harm need not be caused by the act performed at the federal officer's direction, but merely associated with an act performed at the direction of the federal officer.

St. Charles Hosp, et al v. LA Health Srv, et al

Fourth Circuit: Ruth Akers v. Maryland State Education Assoc

 

Assuming without deciding that the Supreme Court holding that public sector labor unions are not able to compel representation fee payments from nonmembers is retroactive, a claim to recoup these funds under S1983 is an action for damages, not disgorgement, as the funds are no longer traceable.

Private citizens who rely in good faith on a state law later found to be unconstitutional can interpose a defense of good faith to an action for damages under the federal statute.

Assuming without deciding that the common law tort defenses at the time of the adoption of the federal statute determine which defenses are available to the statutory tort claim, the closest analogue to a private citizen's reliance on an unconstitutional state law is abuse of process, not conversion.

Ruth Akers v. Maryland State Education Assoc

Second Circuit: DeSuze et al. v. Ammon et al.

 

Statutory notice and comment provision in affordable housing rent increase procedures that places local approval prior to federal consideration do not create a procedural interest under the APA where a subsequent rulemaking reverses that order.

Statute of limitations begins to run, at a minimum, when a reasonably prudent person would have been able to determine the nature of the claim, not when the precise mechanism is explicitly  identified. (Here, apparently, when one of two APA claims became apparent.)

Relevant statutory statute of limitations is a claims-processing rule, not a jurisdictional bar; the court can therefore consider a claim for equitable tolling.

As the agency actions were discrete instances, the continuing action doctrine does not save the claim against the S1983 statute of limitations.

DeSuze et al. v. Ammon et al.

Second Circuit: Cuthill v. Blinken

 

When a minor child of a newly naturalized alien takes their place in the visa queue, the legislative purpose of the statutory tolling of the child's age for the purpose of the pre-naturalization visa dictates that its tolled "statutory age" be applied within the statutory scheme for the post-naturalization visa.

The legislative intent is sufficiently clear to make Chevron deference inapplicable.

Cuthill v. Blinken

Second Circuit: Jin v. Shanghai Original, Inc., et al.

 

 A named class representative retains an interest similar to a private attorney general in vindicating a class claim where the class has been decertified, even if the class representative has subsequently prevailed on the merits as a private plaintiff.

A court retains the obligation throughout the litigation to sua sponte decertify a class that no longer meets the requirements of the rules; no finding of a significant intervening event is required.

The court has no sua sponte obligation to reform the class to meet the rules prior to decertification.

Jin v. Shanghai Original, Inc., et al.

Second Circuit: In Re: 650 Fifth Avenue Company & Related Properties

 

In determining probable cause for forfeiture, refusing to grant an adverse inference after discovery non-production is within the broad discretion afforded the court.

Deprivation of the commercial building's owners of the rights of management, including improvement, selection of and negotiation with tenants, and taking of rental revenues constituted a seizure.

Seizure of rental income is a form of taking the underlying property, not a taking of an interest in property, so the statute required appropriate procedures -- either a hearing or a finding of exigency.

Subsequent finding of probable cause doesn't retroactively justify the earlier taking of rents -- government must repay all rents seized prior to the court's finding.

In Re: 650 Fifth Avenue Company & Related Properties