Ninth Circuit: Willian Rauda v. David Jennings

 

Statute proibits Article III challenges to the removal of a foreign citizen even where that removal happens in advance of statutorily guaranteed motion to reopen the case, since that remedy can be pursued abroad; this is true even where there is a showing of risk to the petitioner from removal.

Habeas jurisdiciton is similarly foreclosed, as petitioner is not seeking relief from executive detention, and as an alien in the process of being removed, has no proceedural rights other than those guaranteed by statute.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/21-16062.pdf

Ninth Circuit: USA V. Steven Bachmeier

Finder of fact could rationally have decided that a request for a case to be assigned to another judge, and that contained a threat against that first judge was in fact addressed to the first judge even though the note was addressed to the courthouse.

Although the jury instruction didn't adequately convey the element of subjective intent to threaten, the error was harmless, since the deft's only argument against subjective intent was that the note had not been addressed to the judge, and the note, read plainly, was a true threat.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-30019.pdf

Ninth Circuit: Dennis Munden v. Stewart Title Guaranty Co.

Since the roadmaps were created under a state statute and designed, at least in part, to give owners in property notice of extant interests in their property, the road map is a public record for the purposes of the title insurance contract, and the insurers had a duty to defend the landowner against the otherwise unrecorded state road easement and right of way.

Policy exclusion for claims arising from public interests in roads applies to bar the claim, since the state is asserting such an interest, and the policy owner is opposing it.

One deft to pay the plaintiff's costs, and the plaintiff to pay the prevailing deft's costs.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-35336.pdf

Eighth Circuit: United States v. Ivan Espinoza

 

As those possessing abuse images tend to hoard them, the uploading of an image was sufficient probable cause for a search of the deft's electronic devices seven months later.   

Under-guidelines sentence not substantively unreasonable.

http://media.ca8.uscourts.gov/opndir/21/08/203049P.pdf

Eighth Circuit: United States v. Herbert Green

 As the officer removed the package containing contraband from where the delivery company had placed it in their facility, but in a manner consistent with the procedure agreed with the delivery company, the officer was working at the direction of the company in carrying it to the dog sniffing area, and the package was not seized until the dog's reaction had established reasonable suspicion.

The dog's reaction, combined with the suspicious appearance of the box, and the deft's demonstrated familiarity with the object provided sufficient probable cause for the arrest.

Scope of the search justified as a protective sweep exceeded Fourth Amendment bounds, since the sweep is permitted in order to determine whether there are othre people in the house, and the officers looked in cabinets and trash cans and opened a shoebox.  

Remand to determine whether a waarant would have been sought anyway and the evidence admitted by means of an independent source 

http://media.ca8.uscourts.gov/opndir/21/08/202796P.pdf

Eight Circuit: Craig Shipp v. Kevin Murphy

 While state law generally governs witness competency in a civil case, federal law controls on questions relating to the qualification of expert witnesses; harmless, as the exclusion was correct under federal law and the testimony cumulative.

A finding of good cause for the substitution of an expert witness after discovery does not compel the admission of substantively different testimony form the second expert.

Referring state prison imate to medical services for special shoes was not deliberate indifference on the part of the warden.

Doctor's lack of recognition of the need for orthopedic shoes, an omission that eventually resulted in an amputaition, did not rise the level criminal recklessness needed to present an issue of deliberate indifference.  Other employees similarly would not have had the requisite disregard.

CONCURRENCE/DISSENT

Nurse's testimony on the negligence of the doctor was admissible expert testimony, given her credentials and the need for a flexible, fact-specific inquiry.  Given the warden's habitual follow-up inquiry with medical services, the warden had sufficient knowledge to present a genuine issue of deliberate indifference.  Physician's and administrator's conduct presented a genuine issue for trial. 

http://media.ca8.uscourts.gov/opndir/21/08/202703P.pdf

Eighth Circuit: J.B. Hunt Transport, Inc. v. BNSF Railway Company

 

Arbitration party's pre-confirmation suit sought declatory judgment as to a specific finding and specific performance as to a specific term, rather than enforcement of the award generally, and therefore wasn't untimely.

Suit wasn't moot due to the expected confirmation of the award, since it would give the plaintiff something beyond the confirmation.

The request for specific performance, however, would constitute a modification of the award contrary to the arbitration statute.

Award's definition of certain terms was exclusive, given the clear decision and the lack of language indicating otherwise in the award.

Where the terms of the Award are ambiguous as to which rates the competitor must disclose to its JSA partner, a fair resolution looks to those rates that are most relevant to the substance of the JSA.

http://media.ca8.uscourts.gov/opndir/21/08/202679P.pdf

Eighth Circuit: Tom Magee v. Benjamin Harris

 

As the mail carrier's errand for a friend arose from a personal motive and wasn't fairly and naturally incident to his duties, the state law presumption of  acting within the scope of employment when driving a vehicle owned by the employer was sufficiently rebutted.  

Although there was no written policy forbidding it, the policies incorporate managerial directives, and the manager's testimony that such a break was forbidden sufficiently supports the court's determination that the detour was unauthorized.  

Driving to the store for a friend's dog food was of a sufficiently marked and decided character to take the mail carrier outside the scope of their employment.  Returning to the break place did not return the carrier to the scope of employment, as the employee must return to the point of deviation or to a place where he should be located inthe performance of his duties.  

Scope of employment is a threshold question under the act, and does not require jury determination as part of the merits.

https://ecf.ca8.uscourts.gov/opndir/21/08/202590P.pdf

Eight Circuit: Alvin Jackson v. Dexter Payne

 When assessing petitioner's mental capability, lack of detail on childhood tests is insufficient to establish that the childhood tests should not be relied upo, with the appropriate fixed margin of error.

Where the low end of the IQ scores is within the defined range, consideration of the second factor is the test is compulsory; a borderline test number can't be offset by other factors.

Court did not clearly err in considering childhood data, as petitioner has been incarcerated for most of his adult life.  Adaptive strengths, particularly within the controlled environent of prison, are not necessarily relevant to the consideration of adaptive deficits.

Supreme Court precedeent prohibits capital punishment where the intellectual disability exists at time of execution.

DISSENT

Adaptive strengths developed in prison are relevant to the inquiry.  Data insufficient to carry the petitioner's burden of proving disability; court shifted burden sub silentio.  State statute also has a presumption against petitioner, requiring him to prove unconstitutionality.

http://media.ca8.uscourts.gov/opndir/21/08/201830P.pdf

Eight Circuit: Awil Mohamed v. Merrick B. Garland

 

Where there is a thresold event necessary for the violence that petitioner claims would result from deportation, the court should consider the sequence of events, rather than the risk factors in the aggregate.

Board did not impermissably find facts when pointing out that, given the situation in the country, the probablility of the adverse events occuring was low.

For purposes of the statute, a government unable but not unwilling to stop the torture does not acquiesce in it.

DISSENT

Considering the risk factors in the aggregate is consistent with governing law.  Board found facts, and they don't necessarily establish that it isn't more likely than not that petitioner will be tortured.

http://media.ca8.uscourts.gov/opndir/21/08/201829P.pdf

Seventh Circuit: USA v. Jesus Beltran-Leon

For purposes of the sentencing factor, torture by arresting third-party state isn't sufficient basis to justify lack of cooperation with US investigations.

Proceedural explanation of sentence was sufficient; there is no need to march through all the different staturory factors and arguments.

Explanation of sentence was sufficiently comprehensive to dispel the suggestion that discussions of ethnicties shared with the judge impermissibly factored into sentencing.

Lack of contemporaneous objection forfeited claim that judge based sentence in part on a news report of country conditions that was outside the record and not made available to the parties.

Court's invitation to the deft to testify at sentencing as to the contents of an affidavit did not create a presumption of adverse inference when deft refused to take stand.

No plain error in judge's non-recusal after discussion of shared ethnicity.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-13/C:19-2615:J:Rovner:aut:T:fnOp:N:2747532:S:0

Seventh Circuit: USA v. Elijah Vines

Expert testimony of federal investigator on the recalcitrance of victims wasn't an abuse of discretion or beyond the rule, since it was from experience and did not directly address the credibility of any witness.

Identification of deft from Facebook photo after victim provided name and the information that deft had a Facebook account was not an unduly suggestive photo identificaiotn, given the lack of police arrangement.

Phone voluntarily provided by a third party without access to its passcode could lawfully be searched under a subsequent warrant, since the third party held a valid possessory interest in the phone seperate from the privay interest in the data inside the phone.  Analogy to a locked safe discussed in circuit precedent.

No clear error in denial of Franks hearing due to claimed misstatements supporting the warrant affidavit, as warrant had independent basis of probable cause apart from that testimony.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-13/C:19-2316:J:Rovner:aut:T:fnOp:N:2747530:S:0

Second Circuit: Sacerdote v. New York University

Fiduciary's purchase of retail class shares rather than institutional class shares in 63 of 103 funds states an ERISA claim under duty of prudence. The subsequent finding of prudent revenue sharing doesn't make the error harmless.  Deft has burden to establish that the losses didn't flow from the imprudent acts.

Refusal of discretionary leave to amend under Rule 16  was an abuse of discretion, since the scheduling order only listed the date beyond which amendments of right would not be timely.  Denial of leave to amend prejudiced post-trial motions.  

Lack of timely response to motion to strike jury trial demand was sufficient waiver.

Trial court's use of written direct testimony is not per se an abuse of discretion.

No clear error in rejeciton of claim that the Plan should have consolidated its record-keeping, given the testimony on IT difficulties.

No clear error in discrediting expert testimony on fund benchmarking.

Judge was not disqualified from presiding by the implicaitons of the fact that she left the bench six months later to re-join a law firm whose chairman, her mentor, is on the University's Board of Trustees.

DISSENT IN PART:

Since retail class share enable revenue sharing to offset recordkeeping costs, no error in dismissal of claim of breach of duty of prudence in opting for retail rather than institutional class shares; the fiduciary followed a sufficiently deliberative process.  Scheduling order setting date beyond which pleadings can;t be amended without leave is sufficient to indicate that in the normal course, no pleadings may be amended.

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/1/doc/18-2707_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/1/hilite/

Second Circuit: United States v. Weaver

 

Fourth Amendment, 161 pp. en banc.

Directive to stand in a place where a frisk would be possible doesn't commence a search, as there was no invasion of a private and constitutionally protected area due to physical trespass or a reasonable expectation of privacy.

Although the seizure in the the Fourth Amendment commenced when the deft reasonably believed that he was not free to leave, the subjective beliefs of the deft doesn't enter into the question of when a search commences.

Similarly, a police officer's subjective intentions do not enter into the determination of when a search has commenced.  There might have been many reasons for the police officer to tell the deft to stand in a certain place.

Deft's hitching of pants, combined with a statement that there was nothing in them that might be weighting them down, was sufficiently furtive; officer is not required to dispel the possibility that the weight was non-threatening contraband.  Deft's conduct, coupled with the behaviour of others in the car, deft's earlier actions, and the location of the stop were sufficient articulable bases for the Terry stop and pat-down.

CONCURRENCE IN THE JUDGMENT, joined by a PARTIAL CONCURRENCE:

Search did not commence until actual pat-down, rather than at the command to stand with feet widely apart.  Circuit precedent requiring a hypothetical test under th same facts, but changing the race of the deft remains good law.  Unless the characterization of "high crime area" is supported by recent and relevant hard data describing a circumscribed area, the characterization usually defers inappropriately to the judgment of the officer.  When's categorical removal of subjective intent from the suppression calculus in favor of a possible subsequent S1983 remedy risks allowing stops with clear evidence of racial discrimination.  Legislatures should directly regulate police conduct, rather than deferring to courts' Fourth Amendment scrutiny.

DISSENT

(Refers to police officers by first name throughout.)

The hitching of the pants was with one hand, and not in a distinctive manner; the officer must have the reasonable suspicion that the objct is dangerous.  Defts repeated compliance with positioning commands and the constant visibility of defts habnds meant that there was insufficient reasonable suspicion from the time after exiting the car, and that earlier suspicions hould have dissipated.  Supreme Court has never held that officers have no obligation to consider alternative explanations for potentially suspicios behaviour.  Reasonable suspicion is an individualized inquiry, placing th behaviour of the other passengers outside the calculus.  Looking at an unmarked car does not constitute counter-surveillance of police activity.  An officer's direction to assume a "spread eagle position" commences a search and requires a reasonable suspicion that the peson being searched is armed and dangerous; it is an order that allows the touching to take place.   Subjective belief of the person being searched as to the beginning of that search is relevant to the reasonable expectation of privacy that defines the search.  Whren risks pretextual and discriminatory stops.

DISSENT

Current Fourth Amendment law encourages deference to police, and then arbitrary distinctions between the deft and other members of society to justify the conclusions of the police.  Exclusionary rule has become a disaster, allows incremental erosion of the right throgh cognitive bias.  Whren encourages pretextual stops and leads to stereotyping.  Command to stand "spread eagled" exceeded permissible bounds of the traffic stop and direction to exit car; it was an additional seizure, and the additional seizure required an additional showing of reasonable suspicion of criminal activity afoot and that the person being seized was armed and dangerous.  Not considering this is contrary to Supreme Court and circuit precedent.  Whren doesn't foreclose considering the offier's discriminatory intent in making the stop where relevant to the officer's characterizations of the justifications for the stop.  Would remand to consider this.  

DISSENT

Stop was pretextual, search was unreasonable.  Officers repeately noted defts race in contemporaneous accounts.  

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/doc/18-1697_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/hilite/

Second Circuit: Div. 1181 Amalgamated Transit Union-New York Emps. Pension Fund v. New York Dept of Education

 

Municipality that contracts with outside corporations isn't liable under ERISA for fund contributions, as contributions aren't required in the contracts or in the Fund's governing documents.  Munciplaity's requirement that contractors hire according to municipality's seniority lists and follow municipality's wage and labor rules constituted neither an ERISA pension agreement or CBA, nor is the munipality a fiduciary or liable due to having participated in prohibited transactions.

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/3/doc/20-4012_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/3/hilite/

First Circuit: Sundaram v. Briry, LLC

 

Disbursements by the trustee of assets of the estate  prior to the confirmation of the plan and prior to the dismissal of the bankruptcy case cannot be revisited in a subsequent Article III challenge.  Since the claim attempts to revisit the organization of the estate, the claim is now moot, and statutes and common law rules allowing challenges to erroneous disbursements require that the funds be in the possession of the trustee at the time that the bankruptcy case is dismissed.

http://media.ca1.uscourts.gov/pdf.opinions/20-9008P-01A.pdf

First Circuit: Segarra Miranda v. Banco Popular de Puerto Rico

 

Erratum.

http://media.ca1.uscourts.gov/pdf.opinions/20-9006E-01A.pdf

First Circuit: US v. Martinez

 For safety-valve relief in sentencing after a conviction for conspiracy, the relevant conduct that must have been disclosed to authorities prior to sentencing includes all conduct in furtherance of the conspiracy, including that of all conspirators, charged and uncharged.

Threat of retribution insufficient to justify concealment of relevant knowledge of the crime.

http://media.ca1.uscourts.gov/pdf.opinions/19-1667P-01A.pdf

Hiatus now

 

Returning to the academic and job search dojo for a bit.  Good to get a couple weeks (234 decisions) of batting practice in.  Still a going concern, and my goal is to accomplish the summaries in one or two hours every weekday morning.  

But now, there's a large stack of books on the desk.  Cheers.

CB

Federal Circuit: In Re The Board of Trustees

 

Claim is ineligible for patent, because it recites abstract mathematical concepts without practical technological improvements beyond increasing statistical accuracy, and, taken as a whole, is embodied as well-known, routine and conventional actions of performing an algorithm on a computer.

(Perhaps.  We don't know many things, but we especially don't know Patents.)

 In Re The Board of Trustees

Federal Circuit: Vollono v. McDonough

 

As the statutory bar to receiving duplicate funding doesn't look to current eligibility status, a veteran who received funding through one program and therefore chose to forgo another funding source can't later seek to receive the second funding after the eligibility for the first was determined to be erroneous, though non-recoupable.

Vollono v. McDonough

Eleventh Circuit: Travis D. Turner v. Secretary, Department of Corrections, et al.

Habeas petitioner filing after the statutory cutoff on a form filing where the untimeliness was facially apparent had an opportunity to challenge the propriety of the court's taking judicial notice of the dates on the state's docket for their convictions by having leave to reopen at the district court level to argue error, equitable tolling, or actual innocence.  Court did not abuse its discretion in initially dismissing the petition as untimely without a reply brief or magistrate's review.

 

Travis D. Turner v. Secretary, Department of Corrections, et al.

Ninth Circuit: East Bay Sanctuary Covenant v. Joseph Biden

 

Amended opinion, Concurrences and Dissents from Denial of En Banc.

CONCURRING WITH DENIAL OF EN BANC:

Sufficient injury to the organization for standing.

Substance and revision of opinion congruent with usual en banc process.

DISSENT FROM DENIAL OF EN BANC:

Court is not a Platonic Guardian of the Constitution and laws.

The organizations did not sustain sufficient injury for standing, since the statute doesn't make it more difficult to provide legal services to immigrants.  Redirection of resources and diminished client pool are insufficient.

Generally, the statute holds that anyone can apply for asylum, but gives the Executive discretion as to whether to grant it.  Panel conflates the right to apply with the right to receive.

DISSENT FROM DENIAL OF EN BANC:

Published motions panel opinions are precedential, and make law of the case.  

East Bay Sanctuary Covenant v. Joseph Biden

Ninth Circuit: George Young, Jr. v. State of Hawaii

 

(En Banc, 215 pp.)

Pro se plaintiff's claim that never explicitly makes the as-applied challenge is correctly read as a facial challenge, since the briefing and argument was conducted with the assistance of counsel.

(Extensive list of English statutes and edicts made against the carrying of (fire)arms from the 14c. onward.)

Colonial history suggests early American acquiescence to firearms limitations outlined in the Statute of Northampton.

Early state enactments generally held that firearms small enough to be concealed could be kept from the public square.

State courts & treatises inconclusive, but generally recognize the government's power to regulate.

The government may regulate, and even prohibit, in public places the open carrying of small arms or arms capable of being concealed.  This does not impede the protection of homes or businesses.  It is peculiarly the duty of the state to defend the public square.  The states assumed primary responsibility for maintaining the king's peace.  

Exceptions to regulations were made for persons, places.  Surety operated not as a minor penalty but as a strong discincentive to carry arms.

That handguns may be used for defense does not change their threat to the king's peace.  The mere presence of such weapons creates terror in the public space.  Hawaii's statute makes provision for public officers, hunters and recreational users, and those with a legitimate cause for fear.

Single-officer approval regulatory scheme is not subject to challenge by prior restraint, as the regulations are not presumptively invalid.

Procedural due process claim is speculative, since no licence has yet been denied.

DISSENT: 

Unprecedented and extreme holding.  First circuit to hold that carrying a weapon in public falls outside of the protections of the Amendment.

Plain text of the Amendment requires right to carry arms.  19 c. State caselaw and federal legislation recognized the right to carry arms.

Statute of Northampton allowed carrying of common arms, not for the purpose of terror.  English law was more restrictive of the right to carry arms than was the American.  Surety was only actually invoked in extreme cases, implicitly legitimating the norm of peaceably carrying weapons. 

"Weapons capable of being concealed" is a novel standard.  Heller explicitly contemplates self-defense as a legitimate reason.  The responsibility for keeping the peace lies with the people, not with the states.

The right openly to carry arms is within the core of the Amendment.  As the regulation destroys the right, it is necessarily unconstitutional.

Pro se complaint should be construed as an as-applied challenge to the enforcement against the plaintiff.

DISSENT:

Should be either construed as as-applied, or allowed to amend. County regulations limiting licenses to working security guards are facially unconstitutional.

George Young, Jr. v. State of Hawaii

Ninth Circuit: USA v. Jane Boyd

 

Statute that allows for penalties for any violation of a certain section does not permit multiple penalties for multiple aspects of the violation of a single obligation, but rather establishes that any of the violations specified in the statute and associated regulations are subject to the penalty.

Materially similar provision for willful violations of the same obligation that allows for multiple penalties cuts against the idea that multiple penalties should be allowed in the section of the statute that doesn't explicitly mention them.

Tax statutes should be strictly constructed where they impose an obligation.

DISSENT:

The reporting requirement is a procedural element, but the substance of the statute is that each of the foreign bank accounts should be reported.

The use of "violation" as defined by its context in the similar provision establishes that the term should have that definition throughout the statute. 

Majority's reading is not strict, but strained.

USA v. Jane Boyd

Ninth Circuit: Wilber Acevedo Granado v. Merrick Garland

 

In ruling the proposed social group insufficiently particular, the IJ erred in not considering the clinical definition of people with intellectual disabilities; the common law definition does not necessarily control.

Although the proposed group of people with intellectual disabilities might commonly be mixed with people with mental illness generally, the relevant question for social distinctiveness is whether the difference can be discerned sufficiently for that subset to face increased persecution.  Discrimination based on the manifest symptoms is equivalent to discrimination against the group.

Proposed second social group was insufficiently responded to by the agency, and its rejection was insufficiently reasoned by the IJ.

Petitioner's claim of risk of torture insufficient under the Convention, since the attacks by police are cases of mistaken identity, and maltreatment by the medical workers because of overcrowding and lack of knowledge.

Wilber Acevedo Granado v. Merrick Garland

Eighth Circuit: United States v. Stacy Lyman

 

As the petitioner was sufficiently represented by counsel during the earlier criminal proceedings that resulted in the predicate convictions, claiming that the charging documents allege a mental state different from that of the offense charged is an impermissible collateral attack from a second forum.

Court did not plainly err in holding that no mental state was required for the predicate serious drug offenses under the statute.

 United States  v.  Stacy Lyman

Seventh Circuit: Tyler Kirk v. Clark Equipment Company

 

Concise Daubert analysis is distinct from conclusory Daubert analysis, and therefore is analyzed for abuse of discretion.

Merely establishing the qualifications of the expert is insufficient; the principles and methods used must be analyzed as well.  Expert testimony involving theories that had not been tested on that type of machine were within the discretion of the court to exclude, even given subsequent remedial measures by deft. Expert testimony as to causation legitimately excluded, since the expert was speculating as to the amount of weight that caused the machine to unbalance; there was no requirement to let the question of causation go to the finder of fact, since the court has a gatekeeper function with expert testimony.

Absent expert testimony, the strict liability defective design claim didn't present a genuine issue of material fact for trial, since consumer expectations are insufficient objective proof when it comes to industrial machines.

Tyler Kirk v.  Clark Equipment Company

Seventh Circuit: Kimberly Nelson v. City of Chicago

 

Loss of employment is insufficient harm to establish a claim under substantive due process, as employment is not a fundamental right.

Negligence in not listening to emergency radio dispatches doesn't state a substantive due process claim for a police officer later injured due to lack of assistance.  The state-created danger exception to the private danger exclusion in due process analysis can't be invoked here, since it only applies when the state disables people from protecting themselves.

Disregarding a known risk to a public employee or altering work records after the fact are insufficiently conscience-shocking to state a substantive due process claim, and the emotional injury from the latter is insufficient to support a S1983 claim.

Plaintiff did not identify procedural shortcomings in protections sufficient to state a claim under procedural due process.

Monell claim against the municipality wasn't supported by showing of pattern or practice beyond individual acts subject to respondeat superior, which is not a basis for liability in S1983.

Kimberly Nelson v.  City of Chicago

Seventh Circuit: USA v. Vickie Sanders

 

Court did not abuse its discretion in denying compassionate release petitioner a reply brief under Due Process after government brief with new medical evidence, since the motion was denied on other grounds.

Denial order did not need to recite basis for denial as to each medical susceptibility, or holding as to each sentencing and factual history element.

USA v.  Vickie Sanders

Seventh Circuit: Next Technologies, Inc. v. Beyond the Office Door LLC

 

Court might have exercised a bit more Constitutional avoidance.  Few Lanham Act disparagement claims would succeed if the manufacturers were considered limited purpose public figures.

Although the state's law doesn't distinguish personal libel from trade libel, since there are few examples of the latter in the caselaw, it is reasonable to follow the Restatement rule requiring injurious falsehood -- false statements of specific unfavorable facts --  for trade libel, a standard which requires reckless disregard of the truth.

Next Technologies, Inc. v.  Beyond the Office Door LLC

Seventh Circuit: USA v. Latrell Coe

 

Reference in sentencing colloquy to an ethnicity shared with the defendant was sufficiently counterbalanced by race-neutral reasoning on the subject, establishing that the court did not rely upon impermissible factors.

Incomplete brain development in the late teens and early twenties is a generic, stock argument, and not a valid mitigating factor.

USA v. Latrell Coe

Sixth Circuit: Brian Lyngaas v. Curaden AG

 

Because evidence establishes a business plan for eventual profitability undercapitalization is not per se proof of being a mere instrumentality of another corporation.

As there is no culpable conduct establishing that the foreign corporation used their control over the domestic corporation to effect a fraud or wrong on the complainant, there is insufficient basis to piece the corporate veil.

Jurisdiction is proper in the district under the FRCP, since the cause of action arises under federal law, the foreign entity is not within the jurisdiction of any other state, and the exercise of jurisdiction is consistent with the US constitution and laws.

Under Fifth Amendment due process, foreign company sufficiently purposefully availed itself of the American market generally by launching the domestic company and retaining a measure of control over it. The marketing faxes at issue sufficiently relate to the purpose of these minimum contacts, even though the foreign company might not be culpable for the sending of the faxes.  Asserting first US jurisdiction over the foreign company is reasonable, since there is a federal interest in the enforcement of the laws, and the plaintiff will not be able to find financial redress from the domestic corporation.

The regulation making culpable under the statute the person whose goods and services are advertised only applies to persons who have some level of knowledge that an unsolicited fax has been sent.

Consistent with agency findings, fax-to-computer transmissions are within the Act, as the receiving machine has the capacity of transcribing the image to paper.

Given proffer of eventual admissibility, the class was correctly certified using unauthenticated telephone logs, as nonexpert evidence may be sufficiently probative at the early stages of the litigation.

As the logs were generated by a machine, they were not hearsay -- hearsay requires the assertion of a person.  Court correctly excluded expert testimony.

List of affected phone numbers reasonably necessitated the claims administration procedure.

In a federal class action, the court need not have personal jurisdiction over the defendant as to each plaintiff.  The question of jurisdiction looks to the relationship between the defendant, the forum, and the litigation -- it does not depend on unnamed class members.  

CONCURRENCE/ DISSENT:

As state courts couldn't resolve the clams of out of state class members, neither can federal courts resolve the claims of those outside its jurisdiction. 

14A Determines the due process limits on federal jurisdiction under the 5A  in federal court.

The statute doesn't apply to faxes received on computers, since, on its own, a computer can't receive messages from a phone line or print the fax on paper; additionally, Congress listed computers as senders, but not receivers.  

Brian Lyngaas v. Curaden AG

Fifth Circuit: Nguhlefeh Njilefac v. Garland

 

Board did not abuse its discretion in discounting the value of affidavits with an attestation that didn't swear to the veracity of the affidavit, although the form used would be acceptable in an Article III court in the circuit.

Board's presumption of delivery is not so irrational as to become arbitrary, especially given the factual context, including lack of return to sender and previous successful deliveries to the address.

Nguhlefeh Njilefac v. Garland

End of Day

 Four cases out of the Ninth saved for tomorrow.

Might press pause on this, as it's a bit of a time-drain, and there's a large stack of books on the desk.  Basically just taking a few weeks of batting practice.  Stay tuned.  Or not, as the case may be.

CB

Eighth Circuit: Meierhenry Sargent LLP v. Bradley Williams

 

Appellate injunction limiting fee arbitrability resulting in an order form the district court on remand that further limited the arbitability to issues that had not been before the appellate court was not impermissibly modified by the order on remand.  The court was free to expand the scope of its initial order.

Appellate court has no jurisdiction over a stay no longer in effect, or matters not subject to interlocutory review.

CONCURRENCE:

Arbitration statute does not empower courts to remove areas from the scope of the arbitration by means of injunction, but the parties didn't raise this defense.

Meierhenry Sargent LLP  v.  Bradley Williams

Seventh Circuit: USA v. Shawn Bacon

 

A controlled buy of drugs does not become less credible in a search warrant affidavit when the agent transacts with an unrecorded intermediary, since the intermediary would have no motive to mislead the agent.  Sufficient probable cause for warrant with multiple intermediary/agent controlled buys and reports of illegal weapons.

Since the ambiguity in the controlled buys was facially evident in the affidavit, no error in the denial of a Franks hearing.

Sufficient evidence for possession of contraband, given possession of contraband.  Drug quantity calculation appropriately added the quantities found during multiple searches.

USA v.  Shawn Bacon

Seventh Circuit: USA v. Dwight Jackson

 

Since the provision in the Code authorizing appeal for discretionary release in "any case" doesn't apply to all cases, since it was added to the Code by the same law that provided for its own effective date and non-retroactivity.

Subsequent law reiterating the effective date and non-retroactivity of portions of the earlier law did not, by implication, amend the status of other parts of the earlier law.

USA v. Dwight Jackson

Seventh Circuit: UFT Commercial Finance, LLC v. Richard Fisher

 

Even with the assumption that the company's attorney was their own client when drafting the agreements, since the complaint doesn't state the necessary proximate cause and damages, the malpractice allegation doesn't state a claim.

Arbitrator's ruling on the inherent illegality of the attorney's conduct applies to the consideration of proximate cause, since, under the statute, if the conduct isn't inherently illegal, the plaintiff must establish that without the advice, the risk would not have been taken.

UFT Commercial Finance, LLC v. Richard Fisher

Seventh Circuit: USA v. Stanford Wylie

 

Declining the invitation to object to a sentence element during colloquy forfeits the challenge, resulting in plain error review; as the omission was accidental, the objection wasn't waived.

Plain error for the court to sentence to a fixed term of supervised release while stating that they believed it to be the minimum, as the duration of supervised release is a different consideration than any given condition of the release.

USA v.   Stanford Wylie

Sixth Circuit: Leslie Nolan v. Detroit Edison Co.

Claims were timely filed, as the statute of limitations did not start to run until, taking all favorable inferences,  the claimant had actual knowledge of the claim or with reasonable diligence should have discovered the claim.

Allegation that plan documents did not make the effects of annuity disbursement, changes in interest rates, and possible negative effects of switching plans sufficiently clear to the average plan participant states a claim.

Despite being insufficient notice under the statute, Plan documents were not in bad faith, since they attempted to explain, compare and caution, and were multi-modal in nature, making a sufficient good-faith effort to convey the information.

Leslie Nolan v. Detroit Edison Co.

Sixth Circuit: United States v. Ward Wesley Wright

 

Denial of compassionate release based on a single sentencing factor wasn't an abuse of discretion, since the arguments were considered, and there was a reasoned basis for the decisionmaking.

The sentence disparities referenced in the rules refer to national disparities, not disparities between sentences handed down for the same occurrences.  

United States v. Ward Wesley Wright 

Fifth Circuit: TX Education Agency v. US Dept. of Education

 

The investigation and fee award from the federal whistleblower retaliation proceeding invoked by the complainant are prohibited by sovereign immunity.  The statute associating the receipt of federal funds with the liability is invoked by the complaint, not by the US, and it doesn't specifically mention the waiver of sovereign immunity; the explicit waiver must be in the statute, not the implementing regulation, so not to infringe the spending power of Congress.

TX Education Agency v. US Dept. of Education

Fifth Circuit: Transverse v. IA Wireless Srv

 

Appellate holding that a party is a prevailing party under a statute with a compulsory fee award becomes law of the case; the district court can't then deny an award completely for lack of sufficient segregation, but must rather determine, based on the evidence at hand, the appropriate level of fees attributable to the relevant action.

Plain error for the district court to apply the law of the forum, where the choice of law provision was clear, aside from a single specific instance referencing mediation within the forum -- this instance supplies only a procedural law.  Since the chosen foreign law requires all fee awards to be authorized by statute or contract, and the foreign law has no parallel fee shifting statute, error for the court to have shifted fees under the statute.

Absent a damages award or equitable or injunctive relief, prevailing party status is unavailable for purposes of a fee award, even if the court explicitly recognized the breach of the relevant obligaiton.

Transverse v. IA Wireless Srv

Fourth Circuit: Raymond Benitez v. Charlotte-Mecklenburg Hospital

 

As it was established by the state, and has many powers that are typically characterized as government powers, such as eminent domain and bond sales, the hospital trust is within the local government antitrust immunity created by the statute.

Raymond Benitez v. Charlotte-Mecklenburg Hospital 

Second Circuit: Vega-Ruiz v. Northwell Health

 

Since, although the right was established by an earlier statute, the plaintiff's claim is made possible by a change in the defendant's obligations that was enacted by a subsequent statute; the relevant statute of limitations is therefore the statutory limit enacted after the second law, and before the second.

Vega-Ruiz v. Northwell Health

First Circuit: Capriole v. Uber Technologies, Inc.

 

The appeal of the denial of the preliminary injunction wasn't severed by the transfer of the case to another court, rather the denial was merged by operation of law into the final judgment in the second forum, making the appeal in the first forum moot.

 Capriole v. Uber Technologies, Inc.

DC Circuit: BCP Trading and Investments, LLC v. Cmsnr. IRS

 

Investigation of accountancy firm did not create a situation of undue contractual influence on the taxpayers, as some had multiple advisors, and some were sophisticated business professionals; the accountancy firm notified the taxpayers of the investigation in a manner that allowed for outside advice on at least some of the relevant transactions.

For purposes of determining whether the partnership was a sham, while the correct business purpose test is distinct from the court's intent-based test, the two are not mutually exclusive, since intent is necessary to prove business purpose.  The transaction had no practical economic effects other than the creation of intentional artificial tax losses.

Tax court's refusal to allow intervenor is reviewed for clear abuse of discretion, given the broad FRCP rule and the court's procedural discretion.  Denial of intervention of right or denial of permissive intervention would both have been appropriate, given the existing representation of interests.

BCP Trading and Investments, LLC v. Cmsnr. IRS

Seventh Circuit: Cedric Cal v. Jason Garnett

 

Claim of actual innocence after a witness recantation that resulted in a perjury conviction for the witness was not adjudicated by state courts unreasonably.  Since a thorough review of the facts and the state record establish that no relief is warranted, the question of whether a freestanding claim of actual innocence is cognizable in non-capital federal Habeas proceedings need not be answered.

Cedric Cal v. Jason Garnett

Fifth Circuit: Newbury v. City of Windcrest

 

Plaintiff's clam that rudeness was gender-based is unsubstantiated by the record.  Two confrontations and a hostile encounter do not suffice for a constructive discharge claim under the statute.  A record reflecting resignation from the position precludes a sufficient showing for retaliatory discharge or gender discrimination.  While a work assignment might have sufficed for retaliation, sufficient causation wasn't established. 

Insufficient proof for Monell claim against municipality arising from police bodycam appearing to remotely activate when inside the plaintiff's house, given technical evidence and lack of showing that there's a general policy to surreptitiously record off-duty officers.

Newbury v. City of Windcrest

Fifth Circuit: Atkins, et al v. CB&I

 

Company's plant to pay employees who stay until the end of a project a bonus is akin to a severance scheme, but does not have the administrative complexity characteristic of an ERISA plan, and is therefore outside the reach of the statute, and of the federal courts.

Atkins, et al v. CB&I

Fifth Circuit: Alejos-Perez v. Garland

 

The state drugs statute isn't divisible; where the state's double jeopadry caselaw ultimately looks to the factual differences between violations within the same statute, a holding that each item in a list is a separate violation doesn't answer the question of divisibility for immigration purposes.

State statute is broader than the generic definition; remand to agency to determine if there is a reasonable probability that the conduct outside the reach of the generic offense would be prosecuted, and to assess alternate grounds of removability.

Alejos-Perez v. Garland

Fifth Circuit: USA v. Brune

 

Jeopardy does not always attach at acceptance of a guilty plea; the relevant criteria for determining the point at which jeopardy attaches are the deft's finality interests and the risk of prosecutorial overreach.  Circuit split flagged on both the proposition and the criteria.

Finality interests look to preserving jury verdicts, the chance for the state to marshal its evidence, and the forseeability of the the second charge.  The relevant factors for overreach are whether the second charge was pending, and whether the government had a full and fair opportunity to convict.

As deft pleaded to conspiracy involving the statutory offense with a minimum quantity, but the plea, the magistrate's report and the acceptance of plea reflected  the statutory offense with no minimum quantity, jeopardy did not attach at the acceptance of the plea, and the court could amend the order to reflect the second statute.

Foreign name of cartel with which the deft had entirely domestic contacts suffices for the sentencing increase for foreign importation.

USA v. Brune

Second Circuit: New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.

 

Given the tolling orders issued by the agency, the sixty-day period for seeking judicial review of agency action wasn't a jurisdictional limit that commenced by operation of law at the point at which agency inaction might have been construed as a denial; the permissive "may" allows the challenger to wait for final action by the agency.

Statute is a mandatory time period for agency action, since it both defines the action and specifies the result of inaction.  Since this time limit is designed to protect the regulatory structure rather than individual private applicants, the agency cannot contract or coordinate with the applicants to extend the time-frame.

Federal agency review might have reached the question of waiver sua sponte or on motion of a third party, so the fact that the party challenging the waiver had been a party to the waiver agreement did not estop the federal agency review from reaching the question.

Agency's policy allowing them to construe a request for expedited action as a request for a waiver determination was a reasonable construction of their statutory powers.

New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.

First Circuit: Emmanuel v. Handy Technologies, Inc.

 

Independent contractor sufficiently manifested assent to clickwrap terms of service containing an arbitration provision, despite the fact that the button clicked to accept the agreement wasn't at the end of the document.

Claim of unconscionability arising from the terms' unilateral modification provision does not address the threshold question of scope of arbitration, and is reserved in the first instance to the  arbitration.

 Emmanuel v. Handy Technologies, Inc.

First Circuit: Marcano-Martinez v. Coop. de Seguros Multiples

 

Although prescription is an affirmative defense, once established, the burden shifts to the plaintiff to establish an interruption; phone calls with no verification mechanism were insufficient to establish an extrajudicial claim on the insurance policy that might stop the clock.

Marcano-Martinez v. Coop. de Seguros Multiples

Federal Circuit: Kimble v. US

 

Given that the taxpayer knew that they had a foreign bank account, the taxpayer didn't tell their accountant about the account, and the taxpayer signed the tax return, the court did not clearly err in finding a willful or reckless violation of the law.

The maximum penalty looks to the statute, rather than the regulation, since they contradict.

No error in mitigation, since the relevant mitigation guideline imposes the maximum penalty on accounts over a million dollars in value.

A foreign bank account is not in itself a property interest sufficient to establish a significant contact with the foreign country.

Plaintiff did not establish grounds for mitigation where the taxpayer is beneficiary of only part of the proceeds of the account.

Reference to an excess penalty in the filing did not preserve an Eighth Amendment claim.

Kimble v. US

Ninth Circuit: Academy of Country Music v. Continental Casualty Company

 

Since an order of remand deprives the nonmovant party of access to the federal courts, precedent dictates that the transmittal of the remand did not divest the court of jurisdiction or the appellate courts of the power to review the remand or any antecedent orders.  Since the sua sponte remand to state court rested upon the finding that the removing party must plausibly plead jurisdictional elements, and not upon the stated finding that there was no subject matter jurisdiction, the case falls outside the statute limiting jurisdiction and appeal after remand.

Academy of Country Music v. Continental Casualty Company

Ninth Circuit: Allied Premier Insurance v. United Financial Casualty

 

Question certified to California Supreme Court:  Under the statute, does a commercial vehicle insurance policy continue until notice of cancellation is delivered to the state, regardless of the expiration date of the policy?

Allied Premier Insurance v. United Financial Casualty

Eighth Circuit: Business Leaders In Christ v. The University of Iowa

 

Summary judgment based on qualified immunity for the defts was in error, since it was clearly established in both Supreme Court and Circuit precedent that university organizations were limited public forums not to be subjected to unreasonable or viewpoint-based discrimination.  The fact that the policy was unevenly enforced actually reinforces the suggestion of viewpoint discrimination.

As similar cases have been decided on Free Speech grounds, though, the relevant law on Free Exercise was not clearly established.

CONCURRENCE/DISSENT:

Unequal enforcement precludes a finding of facially neutral law of general applicability; the Free Exercise right was sufficiently clearly established.

Business Leaders In Christ  v.  The University of Iowa

Eighth Circuit: Brigido Lopez-Chavez v. Merrick B. Garland

 

Because the law asks whether the previous deportation was on the basis of a certain predicate crime, the court engages in the inquiry from the present time, and even where the non-retroactive determination that the crime was not a valid predicate came after the deportation, the inquiry, from the standpoint of the present time, properly determines that the earlier deportation was not on the basis of a valid predicate crime.

Brigido Lopez-Chavez  v.  Merrick B. Garland

Eighth Circuit: Jose Gutierrez-Gutierrez v. Merrick B. Garland

 

Although the immigration removal order signed at the end of the earlier proceedings was signed by the prosecuting authority at the direction of the IJ, there is sufficient evidence of a proper removal order, since both that version and a version later signed by the judge are in the administrative record.

Proper inspection and a procedurally regular admission at the border did not establish a lawful entry, since the statute prohibited entry for ten years after the earlier removal.

Board's correctly determined that, given the phrasing of the current statute, there is no miscarriage of justice exception to the prohibition on reopening a reinstated removal order.

Jose Gutierrez-Gutierrez  v.  Merrick B. Garland

Seventh Circuit: Apostolos Xanthopoulos v. LABR

 

Board's determination that, since the latter reports were not seeking precisely the same statutory remedy, earlier reports filed with the regulator did not equitably toll the statute of limitations for the second remedy, was sound and supported by adequate evidence.  

Apostolos Xanthopoulos v.  LABR

Sixth Circuit: United States v. Vladimir Manso-Zamora

 

There is no constitutional or statutory right to counsel in collateral statutory discretionary release proceedings.  Counsel engaged for proceedings in which the right to counsel attaches do not need to file an Anders brief before subsequently withdrawing from the representation.

United States v. Vladimir Manso-Zamora

Fifth Circuit: USA v. Kieffer, et al

 

Testimony of co-conspirator is sufficient evidence for conviction, unless the testimony is incredible or insubstantial on its face; it is for the finder of fact to weigh the credibility of the testimony.  De novo review, as both counsel recited the form of the motion for acquittal.

Proof of a phone call between the two at that time is sufficient evidence for having made a false material statement denying knowledge of a person's whereabouts.

Stipulation to felony status at trial is sufficient to establish contemporary knowledge of that status at the time of firearm possession.

Despite the fact that a large number of juror questions was allowed, deft has not identified, and the court has not found, any that indicate prejudice.

CONCURRENCE IN THE JUDGMENT:

The appeal of the felon in possession count shouldn't have been de novo, even arguendo.

USA v. Kieffer, et al

Fourth Circuit: US v. Hassan Ali

 

As the plain text of the witness sequestration rule only references exclusion from the courtroom, its presumption of prejudice does not extend to rulings that reach beyond that exclusion, where courts have more discretion.  Since deft's counsel could have consented to an alternate arrangement, and appropriate curative questioning was allowed, the fact that the codeft witnesses were in the same cells during the trial was not an abuse of discretion.

Denial of motion for new trial is not reviewed de novo when given without explanation where the grounds are apparent in the record.  Denial was appropriate where only new evidence was an affidavit from another prisoner that constitutes, at most, impeachment evidence.  Deft's own affidavit is not considered new evidence where it is duplicative of testimony at trial.

Aiding and abetting under the federal robbery statute is a valid predicate crime of violence due to the use of force.  It was error to instruct on an alternate theory of culpability, though, as conspiracy under the same statute is not a predicate crime of violence.  When one of two prongs might have served as the basis for conviction, the inquiry on appeal is a case-specific and fact-intensive one.

US v. Hassan Ali 

Third Circuit: Desmond Conboy v. SBA

 

As the appellant's brief was largely cut and pasted from a trial court filing,  appellee awarded damages under the Rules.  Award against client, but counsel ordered to pay.

Sanctions for making a frivolous argument at the District Court do not preclude sanctions for filing the same arguments on appeal.  Response to appellate sanctions motion needed to be more than a cut and paste from the trial level sanctions filing.

Desmond Conboy v. SBA

Second Circuit: Joseph Watley, Karin Hasemann v. Department of Children and Families

 

Under state's collateral preclusion principles, since the mental condition of the parents was sufficiently considered in the removal proceedings, the standard-specific question of sufficient accommodation can't be relitigated in federal court under the disabilities statute.

Joseph Watley, Karin Hasemann v. Department of Children and Families

Second Circuit: Joseph Watley, Karin Hasemann v. Department of Children and Families

 

Forging of clients' signatures on immigration petitions without the knowledge of the clients constitutes sufficient unauthorized use of their personal information under the aggravated identity theft statute.

Material falsity of the filing is sufficiently independent from the use of the forged signature to justify the independent sentencing increase.

Sufficient evidence for the relevant hundred-document threshold by a preponderance where it was established that 100 basically identical petitions of factual clams were filed.

CONCURRENCE:

While lawful, the indictment's additional charge of identity theft was possibly an unfair use of prosecutorial discretion.

Joseph Watley, Karin Hasemann v. Department of Children and Families

First Circuit: US v. Concepcion

 

Corrigendum.

 US v. Concepcion

First Circuit; Lopez-Rosario v. Programa Seasonal Head Start

 

Emendation.

Lopez-Rosario v. Programa Seasonal Head Start

First Circuit: Thile v. Garland

 

Agency's decision that petitioner had not established state of citizenship was supported by substantial evidence, given the small amount produced after continuance, and lack of explanation for the limited amount of proof.

IJ did not have to make a formal adverse credibility finding to justify rejection of the petitioner's claim as to country of citizenship and requirement of additional evidence.

Under firm resettlement principle, claim against deportation is heard based on the country from which the petitioner came to the US, and from which he held a valid passport, which, since logically possible, creates an inference of sufficient opportunity for permanent residence.

Thile v. Garland

First Circuit: US v. Ayala

 

Since the sentencing judge indicated that the eventual sentence was the correct sentence irrespective of the dispute over which sentencing guidelines should apply, the eventual application of the higher range was, at most, harmless error.

Sentencing judge's remark to witness was, at most, ill-advised attempt to put them at ease, insufficient for a determination of judicial bias.

US v. Ayala

DC Circuit: Gerald Hawkins v. Debra Haaland

 

Concurrent procedural regulation of waters reserved to the Tribe in a treaty with the Federal Government isn't an unlawful delegation constituting a procedural injury to those holding inferior rights to take the water, since the Tribe's treaty right to ensure sufficient water levels requires no concurrence from the Federal Government.  Even absent the concurrent regulation procedures, the Tribe's right to the water would remain, leaving the plaintiffs without a possibility for redress sufficient to justify Article III standing.

Gerald Hawkins v. Debra Haaland

DC Circuit: Christiana Tah v. Global Witness Publishing, Inc.

 

Although the district has recently clarified that the special motion to dismiss statute imposes a burden equivalent to summary judgment in the federal courts, the statute can't be applied in federal court, because the movant under the statute has no burden to make any showing on the merits and the statute limits the discovery process.

Nothing in the denials by the targets of the investigative reporting constituted readily verifiable evidence needed to support a plausible case that the publisher had a degree of awareness of probable falsity sufficient to establish reckless disregard for the truth.

DISSENT:

Even absent contradictory evidence, a story might be inherently implausible, and a publisher has an affirmative duty to reasonably dispel their own doubts.  First consider the inherent plausibility, then consider counterarguments.

The concession that there was no evidence that the counterparty to the transaction alleged to be the motive for the bribery knew of the payments, and the lack of motive for self-dealing bribery in the bonuses awarded make the story sufficiently inherently improbable.

The facts cited in the denials were sufficient to cast doubt on the story.

Circuit split suggested.

NYT v. Sullivan should be overruled.

Christiana Tah v. Global Witness Publishing, Inc.

Ninth Circuit: James O'Doan v. Joshua Sanford

 

Office entitled to qualified immunity for tripping body-throw maneuver used on naked gentleman making threatening gestures.

Given the ordinary and reasonable inference that people know what they are doing, the police offices had sufficient probable cause for the arrest, given the illegal conduct that they had witnessed, despite the claim by others at the scene that the plaintiff was experiencing a medical episode; the probable cause was not dissipated by the time the plaintiff was released from the hospital, since from the police officers' perspective, the conduct seems inconsistent with the asserted condition.

While the explanation for the plaintiff's actions was ambiguous, this did not mean that it was obvious that the story offered by the plaintiff and others at the scene.

Omission of claimed medical condition from report's supporting affidavit wasn't a deliberate fabrication, as precedent requires that the officer either knew or had cause to know of actual innocence, or used coercive and abusive investigatory techniques.

DISSENT:

Given the exculpatory asserted medical condition, the determination of probable cause required an assessment of the credibility of the varying claims, and reconstructing and judging the reasonableness of these determinations is a matter for the jury.  

(Samples of questions that the plaintiff's lawyer might ask on cross.)

James O'Doan v. Joshua Sanford 

Ninth Circuit: Rodney Green, Sr. v. Mercy Housing Inc.

 

Plaintiff bringing suit under the statute should not be assessed fees or costs unless the court makes a specific finding that the claim was frivolous, unreasonable, or groundless.

Rodney Green, Sr. v. Mercy Housing Inc. 

Eighth Circuit: United States v. John Fortenberry

 

Statute's description of judgment on the merits looks to actual adjudication of the substantive issues of the claim rather than looking to the procedural rules' definition of judgment on the merits.  A dismissal of a claim against an agent due to a limitations period does not require the dismissal of the claim against the alleged principal under the statute, or under normal principles of vicarious liability.

Abuse of discretion to admit evidence of past bad acts that were time-barred from the suit, as they were more prejudicial than probative.  As it became a theme of the case, limiting instruction was insufficient.

Evidence of retaliation and harassment by non-defendant agents of the municipality was also more prejudicial than probative, as it translated into the theme that the municipality was a bad actor.

Implying that the municipality had indemnified the defendant officers for punitive damages when in fact only compensatory damages were to be covered was an abuse of discretion.

Cumulative evidentiary errors and misleading jury instructions suffice for vacatur and new trial.

United States  v.  John Fortenberry

Eighth Circuit: United States v. Jay Gifford

 

420 Month below-guidelines sentence not unreasonable.  Seriousness of the offense outweighed the mitigating factors.

Absent a showing of reasonable probability that the sentence would have been different otherwise, no plain error in imposition of lifetime supervised release despite three year limit in statute, given imposition of lifetime supervised release under separate count.

United States  v.  Jay Gifford

Seventh Circuit: Vaun Monroe v. Columbia College Chicago

 

As a claim of discrimination under the federal statute is an attempt to remedy a personal injury to civil rights, the appropriate statute of limitations is taken from the appropriate state's personal injury tort law.

Vaun Monroe v.  Columbia College Chicago

Sixth Circuit: United States v. Lazelle Maxwell

 

Court did not abuse its discretion in revisiting the petitioner's sentence under the statute by first deciding that the petitioner was eligible; second calculating the revised sentencing range using only the changes described in the statute; third, calculating the new sentencing range accounting for all intervening changes in the law; and fourth, considering the facts of the offense and equitable factors from conduct while incarcerated.

United States v. Lazelle Maxwell 

Sixth Circuit: United States v. Jeffery Wills

 

Where the statute allows for resentencing for extraordinary and compelling reasons, the court has discretion to consider each case individually, rather than considering the manner in which other courts have handled similar petitions.

United States v. Jeffery Wills

Fifth Circuit: Franco v. Mabe Trucking, et al

 

Plain text of a federal statute permitting the transfer of an action where the court has a want of jurisdiction allows transfers for lack of personal jurisdiction, lack of subject matter jurisdiction, or both.

The provisions of the statute are compulsory, so they apply whether or not the court cites it when transferring an action.

State statute prescribing any suit after one year from the accrual of the claim but tolled by either filing a claim in a court of sufficient jurisdiction and venue or service looks to the federal courts to determine the date of filing of suit, so the federal law relating back the transferred suit to the date of filing in the first venue.  The state statute looks to the federal relation-back because the Rules of Decision Act privileges federal statutes over state laws, so the Erie analysis looks first to the federal statutory law.  The federal statute controls under the Supremacy Clause; the case is within the statute, and Congress had sufficient authority to pass the statute to regulate the federal courts.

DISSENT:

Federal statute wasn't intended to regulate state statutes of limitations.  State law is an integrated regulation of statute of limitations and service of process.  Majority's view leads to unequal results between state and federal court, and in federal courts handling transferred claims and federal courts serving as the initial forum

Franco v. Mabe Trucking, et al

Third Circuit: In re: Orexigen Therapeutics, Inc.

 

Under the Code, sufficient mutuality for offset of pre-petition monies mutually owed cannot be created by contract in a triangular offset; the claim on the funds is a personal one, and one tied to the identity of the claimant.

The second party also can't transform the contract into a claim.

(Perhaps.  We don't know many things, but we especially don't know Patent and Bankruptcy.  Entertainment value only, folks.)

In re: Orexigen Therapeutics, Inc.

First Circuit: US v. McCullock

 

Contemporaneous objection to the substance of a sentence condition does not preserve a procedural objection against the explanation of the sentence, which is then reviewed for plain error.

On plain error review, deft carries the burden to establish that the error was dispositive.

Court did not commit plain error in imposing a release condition broadly banning types of obscene content, given the history and characteristics of the offenses, including uncharged acts.

US v. McCullock

First Circuit: US v. De Jesus-Gomez

 

In a civil forfeiture proceeding in Admiralty, discovery sanctions are slightly more severe than in the civil analogue.  The Court must weigh severity, repetition, and deliberateness of the violation must be considered.  No prejudice need be shown.  The court did not abuse its discretion in striking the late response and issuing default judgment against a vessel whose claimants asserted a Fifth Amendment exception to civil interrogatories, having previously asserted the exception in a motion to stay that was denied without prejudice.  Although one of the claimants was being held in solitary confinement during the discovery period, the other claimant was not so encumbered.

US v. De Jesus-Gomez

Eleventh Circuit: Wendy St. Elien v. All County Environmental Services, Inc., et al

 

Three to five phone calls per week to out of state customers and vendors establishes sufficient interstate commerce for the jurisdiction of the federal labor standards statute, since the statute explicitly includes communication within its definition of commerce.

Wendy St. Elien v. All County Environmental Services, Inc., et al

Eleventh Circuit: PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC, et al

 

Assume without deciding that the District Court erred in holding that the document was not sufficiently authenticated in liminal proceedings because three of the signatures were not authenticated.

Foreign state's law treats champerty as an affirmative defense to formation; since the champerty claim implicated the merits determination, summary judgment standard would likely be appropriate, even in the context of a motion to dismiss.  

Appeal of champerty finding that doesn't mention the procedural posture of the determination below forfeits any challenge to the standard of review.  

Since the litigation trust created by the injured party as both grantor and beneficiary and to which the claim was assigned in an exchange for value would retain a fixed percentage of any recovery, the agreement was void for champerty under the state's law, and the litigation trust therefore did not have sufficient Article III standing.

PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC, et al

Ninth Circuit: Kennedy v. Bremerton School District

 

High school coach's demonstrative religious actions at the center of the field immediately following the game were performed as a public employee in the course of performing the responsibilities of the job.  

The actions cannot be considered personal and private because of the coach's prior attempts to publicize them.  The collective nature of the activity on almost every occasion establishes that an objective observer would conclude that the practice, coupled with the exclusion of others who might seek access, was an endorsement of a particular religion.

Regulation of coach's conduct was sufficiently narrowly tailored to survive strict scrutiny, given the need to avoid a violation of the Establishment Clause.

School district had no obligation under Title VII  to rehire, given the violation of policies.  Plaintiff can't establish a Title VII disparate treatment claim, as there were no comparators engaged in perceptible prayer.  As the coach's only request was public prayer at midfield after the game, school district was not compelled to accept it as a reasonable accommodation of a practice of bona fide religious belief conflicting with job responsibilities, and it was a sufficient basis for the adverse employment action.

CONCURRENCE:

Fact-driven holding.  (Analysis tracks majority opinion.)

Kennedy v. Bremerton School District

Eighth Circuit: L.G. v. Keisha Edwards

 

The right of a student in a school setting to be free of an unlawful seizure at the behest of police consisting of a brief detention and interrogation was not clearly established in circuit precedent, set forth in a robust consensus, or obviously clear, at least as asserted against a deft with a minor and ministerial role in the seizure.

L.G.  v.  Keisha Edwards

Eighth Circuit: Cory Sessler v. City of Davenport, Iowa

 

Permit scheme for city street fair staged by development commission is a content-neutral means of regulating competing use of the public forum; the permit allows for the permitted speech and allows the restriction of disruptions to the permitted speech.

Declared intent to, in the future, speak in public areas is insufficient to establish irreparable harm for an injunction affecting a specific street fair.

Cory Sessler  v.  City of Davenport, Iowa

Seventh Circuit: Jeffery Bridges v. USA

 

The statute is not a valid sentencing predicate, since it encompasses threats to property, and both the common law crime and the predicate option of extortion require threats against the person.

Since counsel had an obligation during plea negotiations to assess the potential sentence and communicate the potential sentence to the deft, impending challenges to sentencing practices, even if not generally being made at the time, can be sufficiently foreshadowed to require a hearing for a later Habeas petition for ineffective assistance.

Showing of prejudice not required, since the calculated sentence range serves as a lodestar for its subsequent modification.

Jeffery Bridges v.  USA

Seventh Circuit: USA v. Antoine Wallace

 

Since a sentence was pronounced and the state court record indicates that the deft was credited for time served, rather than simply released, a challenge to the duration of sentence for purposes of subsequent sentencing factors is determined by the state court record of judgment, which can only be altered by a collateral challenge to the earlier conviction.

Since the dictionary definition quoted in an earlier holding to exemplify the plain meaning of a term isn't itself binding in its terms, the activity proscribed under the state statute that reached beyond the bounds of the federal law before the term in the federal law was interpreted to merely have the plain meaning is still within the plain meaning of federal law, despite possibly being outside the dictionary definition quoted.

USA v. Antoine Wallace

Seventh Circuit: USA v. Crystal Lundberg

 

Objection to the disclosure of the deft's past occupation was waived when deft raised it several times during the trial.

Deft affirmatively agreed to the admission of the draft email at trial, waiving any subsequent objection.

Appellant carries burden on plain error review to show why forfeited objection at trial meets the standard for plain error.

Sufficient evidence to establish that deft had the requisite intent to defraud and was an active and knowing participant, since deft knew that the funds were illicit, and continued to spend them.

Alteration of another person's tax forms and pay records in order to secure a lease is sufficient for the sophisticated means sentencing bump.

USA v. Crystal Lundberg

Seventh Circuit: USA v. Anthony Jordan

 

Considering the situation under the supervisory powers of the appellate court over the proceedings in the District Court, rather than under Due Process: the District Court did not evaluate the defendant's defense, make a finding as to the willfulness of the violation, or sufficiently explain the sentence in light of the parsimony principle and the sentencing statute.

USA v. Anthony Jordan

Fourth Circuit: US v. Daniel Harris

 

Physical presence in the courtroom is sufficient to give a criminal court jurisdiction over a deft.

Habeas grounds not raised at trial or on direct appeal and then raised for the first time on a collateral challenge are subject to de novo review on matters of law if the government doesn't argue the procedural default at the District Court.

If the conduct relative to the statute's focus, the object of the statute's solicitude, occurred in the US, it is a permissible domestic application of the statute, even if related conduct occurred abroad.  Since the protected victim was in the US while being coerced into the activity by means of the Internet, the present case is a permissible domestic application of the statute, even though the deft was abroad.

US v. Daniel Harris

Fourth Circuit: US v. Bijan Rafiekian

 

Under the statute, an agent of a foreign government operates under foreign direction and control in something more than a one-sided agreement, but one that doesn't necessarily rise to the level of control suggested by employment.

The exclusion of foreign legal transactions from the statute's reach is an affirmative defense, not an element.  Affirmative defenses are not necessarily smaller in scope, and can be used to define the statute's scope.

Circumstantial evidence and rational inference may be used to establish that a person was acting as an agent of a foreign government.

Court erred in granting acquittal, since a rational juror might have determined that the organizational structure and contacts sufficiently established the possibility of foreign direction and control.

Court erred in granting acquittal on Conspiracy, given the agreements, intent to fly below the radar, and decision not to file a notification with the AG.

One-sentence explanation for the granting of a new trial due to the weight of the evidence was categorically insufficient.

Court abused its discretion in holding that the jurors would not honor the limiting instruction on hearsay materials, given the volume of the materials; the ability of the jury to respect their instructions is an almost invariable assumption of the law.

Restricting the reasons for granting a new trial to the ones recited in the motion, including noting the cumulative error, is a jurisdictional limit.

US v. Bijan Rafiekian 

Third Circuit: Paul O'Hanlon v. Uber Technologies Inc

 

In an interlocutory appeal over an arbitration provision, the court to which the appeal is taken must only assure itself of the appellant's right to appeal and the fact that the court from which the appeal comes would have subject matter jurisdiction over a suit arising from the conflict between the parties.

As answering the question of whether a non-customer plaintiff is equitably estopped from avoiding a mandatory arbitration clause within a terms of service necessary for the use of the service is neither necessary for nor inextricably interwined with the question of whether the plaintiffs have standing to sue, the latter can't be answered under pendent jurisdiction on an interlocutory appeal as to whether the non-signatory is equitably bound to the agreement.

Since the plaintiff's are complaining of discrimination that keeps them from using the service, they are not equitably bound to agreement that they have neither embraced nor benefitted from.

Paul O'Hanlon v. Uber Technologies Inc

Second Circuit: Tardif v. City of New York

 

Not providing timely and adequate medical services to detained individual prior to arraignment doesn't violate the disability act, since the disability requiring medication is the reason for the service, not the obstacle for which a reasonable accomodation would have to be provided.  Plaintiff was not denied medical services because of the disability.

At summary judgment, the defendant was not required to provide a nondiscriminatory theory for not providing the medication.

Limiting the testimony rebutting a claim of pecuniary motivation to the social justice motivations for participating in the protest rather than allowing testimony about past work for social justice was not an abuse of discretion.

State law permits a police officer to use an objectively reasonable amount of justifiable force in any non-arrest situation; the contact does not in itself give rise to a claim for assault, and the justification is not limited to the circumstances enumerated in state law.

Since the question of objective reasonableness of force looks to the Fourth Amendment, it was error to instruct the jury that the subjective mental state was at issue; where subjective mental state was potentially dispositive, the error is not harmless.

Tardif v. City of New York

First Circuit: In Re: Da Graca

 

In a Habeas class action seeking relief for immigration detainees in the current pandemic, supervisory Mandamus doesn't run because the lower court has not palpably erred; it has reduced the detainee population significantly.  Advisory Mandamus doesn't run, since the determination of pandemic severity is a factual question, not a legal question, and since the population has been lowered, the balance between extraordinary circumstances and likely success doesn't need to be corrected.

 In Re: Da Graca