Fifth Circuit: USA v. Abbott

 Given documentary evidence, treaty claims, and the fact that the Supreme Court has taken judicial notice of the fact, there was no clear error in holding that the Rio Grande is a navigable river in Texas.  Navigability can include ferry traffic across the river.

No clear error in the District Court's holding that the floating obstruction devices tended to interfere with or diminish the navigable aspects of the river.  Structures were sufficiently permanent to come with the scope of the Act.

The constitutional gravity of a state's declaration of invasion and decision to mount an independent defense is inapposite to a motion for a preliminary injunction.  Court appropriately considered policy considerations when balancing equities.

DISSENT:

No showing that this segment of the river was historically navigable. Statutes and treaties precautionary and precatory, respectively.  Use of the river must have been more than sporadic, ineffective, and exceptional.  Out of context quote from the Supreme Court doesn't outweigh Texas geography.  Injunction directs the moving of the barrier, so the diplomatic harms aren't redressable.  Balance of equities favors the state. Allowing certain newspaper articles in under judicial notice was error.

USA v. Abbott

Fifth Circuit: USA v. Croft

 Listing qualified staff members who never showed up to work for purposes of a certification by a state agency was a violation of the identity theft statute, as the misrepresentation was at the crux of the fraud.

CONCURRENCE:

("Dubitante") The fraudulent aspect wasn't in the identities of the staff members, but in their qualifications.

USA v. Croft

Fourth Circuit: US v. Brent Brewbaker

Motion to shift the ground from per se violation to rule of reason was properly construed as a motion to dismiss the indictment, as it would have been an impermissible constructive amendment of the indictment.

Where two parties are alleged to have engaged in bid-rigging, and also relate vertically as supplier and contractor for awarded bids, the alleged conduct isn't an inherently anticompetitive restraint on trade subject to per se analysis.  Precedent requires that the companies be considered in their totality, so the horizontal bid-rigging isn't separable from the supply relationship.

Expert testimony as to the anticompetitive effects of the business practices should not have been excluded when considering a (constructive) motion to dismiss.

By ensuring that their competitor/distributor won the bidding war, the bidder could increase the demand for the supplier's product.

Fraud convictions for submitting a noncompetitive bid were not infected by the Sherman Act instructions reversed here.

US v. Brent Brewbaker 

Third Circuit: PJM Power Providers Group v. FERC

 Sufficient injury for standing from the electric rate increases; as vacating the underlying order would revert the scheme to its prior arrangement, rather than make it subject to change on remand, the injury is sufficiently redressable.

As the statutory cause of action references the generic act, the standard of review is the generic test, rather than a specific threshold in the statute.

Where the vote of the commissioners is tied, and the individual statements of the commissioners therefore in no way constitute an order of the commission, judicial review properly incorporates the entire record, including the individual statements.

When an agency shifts position on an issue, it need not prove that its new approach is better than the previous one. Agency's constructive acceptance of the new policy was neither arbitrary nor capricious, and was supported by substantial evidence in the record.

PJM Power Providers Group v. FERC

Tenth Circuit: Watchous Enterprises v. Mournes, et al.

 Local rule that uncontroverted facts were to be used against the nonmovant at summary judgment did not limit the effects of nonresponse to summary judgment.  The nonmovant must either contest the facts or show that the facts should not be established at the summary judgment stage.  Absent that, the facts, if not contested later at trial, could be included in the court's instructions for the verdict or used as a basis for in limine exclusion orders (subject to challenge as to the uncontroverted facts).

On appellate review, there must be a showing as to each disputed fact, not just a list of facts claimed to have been disputed. Court did not abuse discretion in admitting the challenged facts, given the testimony.  

Watchous Enterprises v. Mournes, et al.

Ninth Circuit: Anthony Sanders, et al. v. County of Ventura

Where, under a voluntary flexible-benefits reimbursement scheme, an employer retains as healthcare-related administrative fees some portion of the funds disbursed to an employee who has opted out of the employer's health insurance scheme, although the deduction is listed as a deduction from earnings, it is not part of the base salary used to calculate overtime wages under the statute, because the statute specifically exempts funds paid to a third party for an employee-related health scheme.

As a rulemaking that purported to set a hard ceiling for the amount of the employer's reservation contradicted an earlier holding, made no textual changes to the rule, and was based on determinations considered in the earlier case, the earlier holding controls.

Anthony Sanders, et al. v. County of Ventura

Sixth Circuit: State of Ohio v. Xavier Becerra

The Supreme Court has held that the statute's mandate is sufficiently ambiguous to allow for agency construction.  The agency's reading isn't contrary to the law.  Agency adequately explained its decision to revise the rule.  

The claim that the agency looked to the policy views of professional associations and federal statutes rather than the policies of the states states a legitimate concern, but since the state regulating bodies concede that one could practice within the state while taking either view of the question, the agency's decision wasn't arbitrary and capricious. 

Where the agency states that it is changing its course on a certain issue, it need not address specific earlier conclusory determinations contrary to the new course.

Agency must offer a clearer definition of the nature of a program to ensure the mandated separation of programs. Panel takes judicial notice of the list of pending grant recipients, which is sufficient to establish irreparable harm to the states, given the loss of federal funding. Relief in the form of a preliminary injunction should be limited to the state plaintiff that established sufficient harm by affidavits.

CONCURRENCE/DISSENT: 

Agency's program separation requirements not manifestly against the statute. Statute itself defines the contested term.  Rulemaking wasn't arbitrary and capricious--there is no increased threshold for subsequent agency action relative to initial agency action. Attendant harms required where plaintiff claims injury from loss of federal funds.  Public interest calculation of the injunction calculus should consider the decision of Congress.

State of Ohio v. Xavier Becerra

Sixth Circuit: Inner City Contracting LLC v. Charter Twp. of Northville

 Despite being a disappointed bidder for a government contract, the plaintiff alleged a specific injury, and therefore the claim isn't presumptively disfavored for purposes of standing. The dignitary harm in racial discrimination and the lost profits from the contract suffice for Article III standing.

A corporation's claim of racial discrimination falls within the zone of interests of the statute prohibiting racial discrimination in contract awards. Supreme Court holding saying that a corporation has no racial identity referred to constitutional standing, not statutory standing.  

Claims against state government entities must be under the general statute (S1983), as there is no cause of action against states under the particular statute.  Under the general statute, establishing that a contract was awarded to a higher bidder of a certain race states a claim absent any proffer as to the racial identity of the plaintiff corporation.

Private company reviewing bids and making a recommendation wasn't a state actor for purposes of the statute. Lack of investigation of bidding process insufficient for municipal liability.  No equal protection or due process claim where alleged discrimination was by the private entity of a private-public collaboration. No property interest in a lost contract bid, where the state actor had discretion to accept the bid.

Inner City Contracting LLC v. Charter Twp. of Northville

 

Second Circuit: Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen

Sufficient injury for standing where an investor has progressively accumulated a position in a fund, and the administrators pass a measure limiting the voting rights by default above a certain imminent threshold; this is not a "someday intention," and the possibility that the terms could be renegotiated after a proffer would merely constitute another injury from the costs.

Diminishment of the value of the shares is an injury in law, as it violates the statute; as the loss in value is analogous to conversion or other tort claim, there is a sufficient historical analogue to establish the concrete nature of the harm.

Default restriction on the voting rights of the shares of some purchasers inherently violates the statutory requirement of present, equal voting rights in shares.  The share-shareholder distinction has only been recognized in limited terms, such as compliance with incorporation requirements, and other shareholder-based restrictions on voting are less fundamental than blocking the voting rights entirely.

Plain meaning of the statute controls, rather than interpretations of its stated purposes.

Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen

First Circuit: Milton, MA v. FAA

 Municipality's claimed injury to itself from revised airport flight-paths is insufficiently particularized to itself as a municipality to confer standing.  Similarly, the losses from litigation and challenge costs aren't injuries, since the function of a municipality is to spend money on things that might benefit the citizens.   Argument that the plans caused people to move away is legally and factually distinct, and therefore raised too late in the reply brief.

Milton, MA v. FAA

Eleventh Circuit: USA v. Kendrick Eugene Duldulao, et al.

 Although the conspiracy instruction might have been faulty, a prior panel held that it sufficiently conveyed the mens rea required for culpability, and circuit precedent can't be changed within the circuit absent en banc review. Circuit precedent to contrary was for general offense of conspiracy, rather than specific statute.

Although the other challenged instruction was suggested by the deft at trial (in accordance with longstanding precedent), subsequent changes in the caselaw are an exception to the invited-error doctrine, and sufficient under plain error review.

Sufficient evidence for conviction.  Expert medical testimony on appropriate standard of care, even when dispositive, wasn't plain error.

USA v. Kendrick Eugene Duldulao, et al.

Tenth Circuit: Team Industrial Services v. Zurich American Insurance Company, et al.

 Second company that assumed the obligations of a first company by a series of agreements consolidating and retiring the earlier agreements was not covered under the insurance of the counterparty, as the new agreements set such coverage at the discretion of the counterparty.  Use of the first company's credentials by the second company to file insurance paperwork insufficient to offset.  No cause for reformation absent evidence that the counterparty had any other intent.  If there was a fiduciary duty of the counterparty, it was owed only to the first company.  Promissory estoppel unjustified.

Team Industrial Services v. Zurich American Insurance Company, et al.

Ninth Circuit: Tellez-Ramirez v. Garland

Under modified categorical review, the state drug statute is a valid immigration predicate.  The list of drug classes doesn't establish several means of committing a single crime in itself, but is rather a list of  elements establishing distinct violations--this is due to the varying lengths of sentence, caselaw referencing the need to prove specific substances within a single class, and the fact that the specific illicit substance is named within the jury instructions.  

The overbreadth of the state statute relative to the federal crime doesn't import a similar overbreadth into the mens rea; a belief that the substance was proscribed under state law would suffice for a state conviction that could pass Immigration muster, as the state mens rea and federal mens rea requirements are identical.

State caselaw incorporating solicitation into aiding and abetting, and under which, by statute, the conduct is culpable as the conduct of a principal under the specific state statute doesn't make the specific state statute broader than the federal version, since solicitation alone would be an inchoate offense distinct from an accessory's conviction as a principal under the specific statute, which would require a completed offense--not mere solicitation.

Tellez-Ramirez v. Garland

Sixth Circuit: In re: Cal. Palms Addiction Recovery Campus, Inc.

Shifting the bankruptcy proceeding to another statutory title for purposes of liquidation finalized the rights of the parties with significant and irreparable consequences, so the order is sufficiently final for purposes of appeal.

Court did not abuse its discretion in moving to liquidation, despite the possibility that the order would diminish the party's ability to recover funds in pending lawsuits, given concerns about the management of the estate.

Party insufficiently prejudiced by two-day violation of notice requirement. Lack of counsel at hearing not prejudicial, as there was no objection to withdrawal or request for continuance.

Cal. Palms Addiction Recovery Campus, Inc.

Fifth Circuit: Sligh v. City of Conroe

Police dog's directed attack was a violation of pedestrian's constitutional rights, but not a clearly established violation of constitutional rights for liability purposes, since precedent cited was of a non-resisting suspect.  Similarly, claims against bystander officers and the municipality were not against clearly established law.  Police knowledge that pedestrian was a mental patient insufficient for a claim under the disability act.

Sligh v. City of Conroe

Fourth Circuit: US v. Dearnta Thomas

 The federal racketeering violence statute is a crime in itself, and satisfies the requirements for a crime of violence without looking through the statute to the underlying state-law predicates of the conviction.

US v. Dearnta Thomas

Eleventh Circuit: Robert Ponzio, et al v. Emily Pinon, et al

 Court, acting as a fiduciary for the class, didn't err in accepting a settlement of a class action as fair, reasonable, and adequate.  Plaintiffs couldn't substantiate number of affected customers who were categorically ineligible under the settlement. Order sufficiently reasoned, terms could have been acceptable to reasonable counsel.

Robert Ponzio, et al v. Emily Pinon, et al 

Ninth Circuit: Brandon Briskin v. Shopify, Inc., et al.

No specific jurisdiction over web payment service operator, as the harm doesn't arise out of conduct expressly aimed at the state; the company is a broadly accessible web platform indifferent to the location of its customers and the consumers affected.

Brandon Briskin v. Shopify, Inc., et al.

Eighth Circuit: United States v. Michael Goforth

 

Given another circuit's on-point precedent (with a novel definition of the generic crime), a state kidnapping statute is a valid predicate, as the state court decision that expanded the bounds of the statute beyond those of the generic crime did so in dicta, after first determining that the conduct satisfied the state statute.

United States  v.  Michael Goforth

Eighth Circuit: United States v. Aaron Broussard

 

Plain error review, as deft's pro se pretrial motion to exclude was denied with an invitation to object at trial, and later standby counsel didn't object or preserve the claim. Introduction of photographs of victims of mail-order pharmacy wasn't plain error.

United States  v.  Aaron Broussard

Seventh Circuit: Roy Sargeant v. Aracelie Barfield

 

Plaintiff's 8A claim appropriately preserved when 1A claim was screened out, as the screening operated as an interlocutory order, and the underlying facts of the claim established the 8A claim.

A Bivens remedy for not protecting a prisoner is unavailable, as the only Supreme Court precedent recognizing the claim was sub silento; it's therefore a novel claim, and the existing statutory and administrative scheme suffices to establish that Congress might think itself best placed to resolve the procedures. 

DISSENT:

Sub silento Supreme Court holding suffices, given the facts of the case and lower courts' recognition of it.  Even absent that, it's not a new context, and no special factors counsel against recognition of the judicial remedy.  Bivens grounded in constitutional necessity.

Roy Sargeant v. Aracelie Barfield

Sixth Circuit: United States v. Yun Zheng

 

Given the terms of the current statute, harboring an alien doesn't require specific intent; rather, it proscribes conduct that substantially facilitates remaining and avoiding detection, either knowingly or in reckless disregard of the risk.   Circuit precedent on the term doesn't bind, as the changes to the underlying statute have been significant. Error would be harmless anyway, as the aliens being in plain view wouldn't exculpate.  Instructions didn't invade 6A territory of the jury.

United States v. Yun Zheng

Sixth Circuit: United States v. Clarence Goodwin

No procedural error in review of sentence, as the retroactive element of the law only reduced the minimum term, not the guidelines range, and the court adequately recited that it had considered the petitioner's arguments. The reliance on the career-offender sentencing consideration to reach the guidelines range under the new calculation didn't offend Due Process.

Substantively, bootstrapping a challenge to the career-offender calculations to the retroactive changes would be unfair to those who were sentenced only under the former.  

DISSENT:

Career-offender guidelines are tied to the maximum sentence, which, although not made retroactive here, would be different under the new statute; court's explanations did not demonstrate that it understood the complexity of the deft's claims.

United States v. Clarence Goodwin

Fourth Circuit: In re: Caryn Strickland

 

Mandamus for trial scheduling neither justified nor prudent, as the statute only establishes that the court need give priority to the claim, and the court's offer of a trial prior to full discovery, as well as the petitioner's agreement to defer proceedings for arbitration, suffice to establish that the claim was being promptly addressed.

(Entire circuit recused, panel from outside.)

In re: Caryn Strickland

Fourth Circuit: US v. Gregory Brantley

 

The time limit for appealing un-pronounced elements of the sentence is a mandatory claims-processing rule, and since the govt timely requested dismissal, equitable waiver is unavailable. Deft's analogy to appeal waivers inapposite, since in that case, imposition of sentence happens after (otherwise appealable) judgment is issued.  Terms of a judgment are presumptively binding, and deft was put on notice of them when judgment issued.

US v. Gregory Brantley

Second Circuit: United States v. Calk

 Bank officer's approval of loans in hopes of a Presidential appointment was illegal, as, for purposes of the statute, corrupt conduct need only be motivated at least in part by improper motives, and commercial decisions that might offer legitimate benefits are not insulated from the inquiry.  The thing of value at issue need not have pecuniary value. The value of the intangible thing at issue can be determined to exceed the statutory minimum by establishing its value to the deft.

The grand jury subpoena of a third party wasn't improper; although the suspicious timing was enough to shift the burden, the subsequent superseding indictment, among other things, established its legitimacy.

United States v. Calk

Second Circuit: United States ex rel. Weiner et al. v. Siemens AG et al.

 As the qui tam statute references both the unsealing of the complaint and the court's direction to serve the defendant, the clock for serving the defendant did not begin to run until the court ordered service.  

United States ex rel. Weiner et al. v. Siemens AG et al.

First Circuit: Ciarametaro v. City of Gloucester

 

As city officials might reasonably have concluded that the value of the harbormaster's expert testimony was outweighed by the city's interests, the right to testify in the matter was not clearly established, and the officials are entitled to qualified immunity.

 Ciarametaro v. City of Gloucester

Eleventh Circuit: Joan Simring v. GreenSky, LLC

 District court remand to state court under the local controversy exception to the class action statute is reviewable despite the ouster clause of the statute, since the remand is neither for a lack of subject matter jurisdiction nor due to a procedural defect.  The appeal didn't require an authorization of permissive appeal, as the remand order is sufficiently final.

Despite the stipulated limit to the damages by the lead plaintiff, the deft's estimate of relief across the class prevails, since the lead plaintiff has no authority to bind the relief granted the class; the relief therefore exceeds the limit for the local controversy exception.

For purposes of determining residency of class members, only the explicit definition of the class can limit the class to a certain state, and the plaintiff has the burden of establishing the required fraction of in-state class members.

Joan Simring v. GreenSky, LLC

Eleventh Circuit: Southern Coal Corporation, et al v. Drummond Coal Sales, Inc.

 District court properly considered industry usage in determining whether a certain term was ambiguous, ultimately basing its judgment upon finding both the specific referent and the industry benchmark to be reasonable readings.

Agreement not susceptible of reformation, since the claimed error was the mutual mistake of sophisticated parties, so there's no basis for saying that the present agreement doesn't reflect the original intentions of the agreement.

District court abused its discretion in denying fees, as the movant prevailed on their central claim.

Counter-party's refusal to proceed under an industry benchmark once the specific rate-setting mechanism ceased to exist wasn't an anticipatory repudiation, since they were still performing their unaffected obligations under the contract. Since the dispute went to pricing and not the special purpose of the contract, neither was it a material breach of the contract.

CONCURRING IN PART, CONCURRING IN THE JUDGMENT:

The question on fees isn't whether a party was a prevailing party, but whether, under the contract, a party was a defaulting party.

Southern Coal Corporation, et al v. Drummond Coal Sales, Inc.

Ninth Circuit: USA v. Volodymyr Kvashuk

 Proof that an IP associated with the house was used to access relevant email and crypto-coin sites, combined with affidavit statement that financial and personal records are often kept at the home, was sufficient probable cause for a search of the house in an online fraud investigation.  The fact that the fraudulent transactions were committed before moving there isn't dispositive of whether there was likely to be evidence at the house.

A 15-20 month gap between the thefts and the affidavit didn't make the affidavit claims stale, given the nature of computer memory.

Discrepancy in URL TLD on the warrant affidavit was inconsequential.

Personally issued website development test accounts sufficiently identify their authorized users to be the basis for a charge of aggravated identity theft.

Deft's immigration status wasn't critical to establishing a defense for the use of crypto-coin; court did not abuse its discretion in excluding it.

Juror's work with the same large corporate division was insufficient for a claim of implied bias, since the fact patterns at issue in the trial weren't similar to the events of their employment.

USA v. Volodymyr Kvashuk

Eighth Circuit: Barry Segal v. Metropolitan Council

 Although a violation of the transit agency's regulations might not suffice to establish a claim under the discrimination statute, the violations here presented a genuine issue of material fact for trial.

Barry Segal  v.  Metropolitan Council

Eighth Circuit: Scott Gustafson v. Bi-State Development Agency

 Concession at the motion for judgment on the pleadings that the plaintiff wasn't seeking to enforce a private right of action under the statute judicially estops plaintiff from making such a claim at the motion for summary judgment.

 Frustrating but isolated incidents of inability to access services don't support a discrimination claim under the statute.

Earlier denial of motion to amend the complaint isn't automatically raised in an appeal of subsequent denial of summary judgment.

Scott Gustafson  v.  Bi-State Development Agency

Seventh Circuit: Indigo Old Corp., Inc. v. Thomas Guido

 Since the guarantor's obligation was part of an obligation subordinated to a second debt, the lender can't proceed against the guarantor until the second debt is retired and the subordinated obligation comes due.  Under state law, the fact that the debt was subordinated by a contemporaneous instrument means that the subordination didn't count as a modification of the guaranteed obligation that would trigger the guarantor's obligation.

Indigo Old Corp., Inc. v.   Thomas Guido

Seventh Circuit: Alhadji Bayon v. Marshall Berkebile

 As the facts still in dispute bear on the objective reasonableness of the force used by the police officers to arrest the plaintiff, the appellate court has no jurisdiction over an interlocutory claim arising from a denial of qualified immunity,

Alhadji Bayon v.  Marshall Berkebile

Seventh Circuit: USA v. Darrick Vallodolid

In that the political beliefs expressed about immigration policy and discriminatory law enforcement were not exclusively rooted in the venirepersons' ethnicity, their removal from the pool of jurors wasn't constitutionally impermissible.

Given the small size of the sample, statistical analysis and disparate impact analysis alone is insufficient to establish discriminatory nature of the strikes.

As the eyewitness testimony was riddled with inconsistencies beyond the exculpatory ones, it was for the finder of fact to determine its credibility.

Sufficient evidence to find that the crime was gang-related, even absent formal affiliation with the gang, in that it furthered the activities of the former gang.

Sufficient evidence of the conspiracy to admit the statement of the co-conspirator.  Statement indicating possession of drugs in the house admitted not for the truth of the matter asserted, but to establish that the robbers believed there to be drugs there.

Sufficient evidence for conspiracy, given the customary procedures of the gangs and the defts' involvement with them.  Sufficient circumstantial evidence to establish drug quantities.

Federal RICO proceeding wasn't required to incorporate state predicate offense's procedural requirement of bifurcated penalty phase.

USA v.  Darrick Vallodolid

Fifth Circuit: USA v. Singletary

Given that the deft conspired to supply firearms to drug dealers, the conspiracy among the drug dealers to sell drugs is distinct from the conspiracy to supply them with firearms, and therefore a valid predicate for the increased sentence.

The distinction between these conspiracies also serves to separate the two relevant sentencing factors, so that they're not double-counting the same offense.

USA v. Singletary

Second Circuit: Kakar v. USCIS

 Agency's ruling was arbitrary and capricious in that it didn't explain how petitioner's conduct would have been illegal in the United States, given that there is a genuine and reasonable dispute as to the context of the events, and also as to the affirmative defense of duress.  

(Although petitioner had challenged for lack of substantial evidence, vacated and remanded to agency as arbitrary and capricious.)

Kakar v. USCIS

First Circuit: Williams v. Kawasaki Motors Corp., U.S.A.

 Although the District Court excluded the expert testimony, a precise reading of the testimony establishes that the plaintiff hasn't met their burden on causation; the question is not if the fractured weld caused the accident, but whether the defect in the weld caused the accident.

Williams v. Kawasaki Motors Corp., U.S.A.

First Circuit: Puerto Rico Farm Credit, ACA v. Eco-Parque del Tanama Corp.

Statute requires that the lender attempt a restructuring of the loan obligations only where the restructuring ultimately proves less costly than foreclosure; borrower's inability to demonstrate means for a satisfactory repayment removed the requirement.

Under the statute, a lender must consider the restructuring plan's credibility and viability, and need not accept a plan that the counterparty can't perform.

Putting forward a credible plan for restructuring is a threshold requirement for challenging the lender's estimated foreclosure costs.

Puerto Rico Farm Credit, ACA v. Eco-Parque del Tanama Corp.

Federal Circuit: Veteran Warriors v. Secretary of Veterans Affairs

 Statutory term is sufficiently vague to justify deference to the agency, as it is silent as to whether certain services need to be delivered in person, as opposed to being provided remotely.  Parallel statute distinguishing the two speaks to the ambiguity of the first statute.  

Agency's position is justified by the need for a clear rule, and is a reasonable policy choice; prior silence on the question doesn't establish that this is a reversal by the agency.  

Although the statutory context clarifies the definition of "serious injury," the statute is still sufficiently ambiguous to require deference to the agency.

Although the agency's new definition was a change from prior interpretations, it was a reasoned change that accounted for settled expectations, and not the sort of sharp break with previous readings that would justify less deference to the agency's final interpretation.

Statute defining incapacity as being unable to accomplish certain daily tasks is sufficiently vague to justify deference to the agency's reading, since it doesn't distinguish occasional incapacity from total incapacity.  Prior fee schedule implying a gradation of capacity doesn't make for a change in policy, since it refers to the amount of assistance provided, not the beneficiary's abilities unaided.

Agency erred in imposing a single definition of "in need of supervision" where the law describes two degrees of necessary supervision; additionally, the medical requirements read into the term are not logically dictated by the statute's mandate.

Law's requirement that the compensation levels be tied to geographic areas and creation of a program for assisting veterans abroad did not define the eligibility of extraterritorial caregivers; the agency's interpretation barring such caregivers is reasonable.

Agency's tying of caregiver compensation to federal civil service pay levels was a reasonable one; nothing in the act required that the compensation be linked to private sector salaries.

Agency's definition of the inability to sustain life in the community was a reasonable one; it incorporated the statutory factors.

Veteran Warriors v. Secretary of Veterans Affairs

DC Circuit: Jane Doe v. SEC

 Although the list of examples in the statute isn't explicitly an exclusive one, deference to the authoritative, considered interpretation of the agency within its competency asserting the exclusivity of the list is warranted.  Expressio unius would require an exclusive list.  

CONCURRENCE:

When a statute lists three means for accomplishing something, there are three means of accomplishing something under the statute.  Expressio unius applies.

Jane Doe v. SEC

DC Circuit: USA v. Nizar Trabelsi

 Pretrial orders denying a double jeopardy claim arising from the circumstances of extradition are sufficiently final for the purposes of appeal.

By the terms of the treaty and the act of state doctrine, the courts should primarily defer to the actions of the foreign executive rather than the actions of the foreign judiciary.

Foreign court's determination of the limits of the foreign executive's power under the order did not interpret the executive's decision or say that he was compelled to follow the instructions of the order.

Foreign executive's transmission of letter outlining terms of the extradition was not an act of state where the transmission of the letter was mandated by the foreign judiciary, and the letter notes that it is not necessarily the position of the foreign state.

CONCURRENCE:

A private right arising from a treaty can be forfeited when not timely raised.

CONCURRENCE:

Although the plain text of the treaty imposes no double jeopardy obligations on the extraditing state, an earlier holding in the case established that it imposed reciprocal obligations as to its principles; making this determination should have been the first consideration, as it implicates US separation of powers, with the courts constrained from reading general principles of international law into the terms of a treaty.

USA v. Nizar Trabelsi

Ninth Circuit: Craig Ross v. Ronald Davis

 Felony murder constitutional challenge to sentence was appropriately exhausted in state habeas, since despite the state habeas holding to the contrary, petitioner's filings on direct appeal discussed the relevant standard and sought relief.

State jury instructions on aiding and abetting didn't preclude the subsequent capital sentence, because although they didn't require the specific intent necessary under federal law, the separate finding of special circumstances established the necessary intent.

Petitioner had sufficient involvement in the crimes and evinced sufficient reckless disregard of the risk of death.

State court's determinations on ineffective assistance of counsel were not contrary to or an unreasonable application of the federal standard; defense counsel's limited investigation of mitigation evidence wasn't dispositive, as it related entirely to early childhood, and defense closing contained many mitigating inferences from the evidence; the latter are appropriately considered in a Strickland claim.

Craig Ross v. Ronald Davis

Ninth Circuit: Laidlaw's Harley Davidson Sales v. Commisioner

Law requiring initial determination of tax assessment to be approved by a supervisor prior to enforcement of the penalty doesn't preclude pre-approval notice to the taxpayer that the government will enforce the penalty; the supervisor's approval must occur before the actual enforcement, but sufficiently in advance that the supervisor still has the discretion to withhold approval.

DISSENT:

By the plain language, the initial determination must be approved before it becomes the basis for agency action.

Laidlaw's Harley Davidson Sales v. Commisioner

Fifth Circuit: La Union del Pueblo Entero v. Harris Cty Repub.

 As the motion was timely and the impaired interest might not be sufficiently protected by the state's defense of the law, partisan political committees had a right to intervene in litigation challenging an election reform law.

La Union del Pueblo Entero v. Harris Cty Repub.

First Circuit: OK Resorts of Puerto Rico, Inc. v. Charles Taylor Consulting Mexico, S.A. de C.V.

 Court did not abuse its discretion in granting a motion to dismiss well after the scheduled close of discovery, given the absence of supplementary filings from the non-movant.  

OK Resorts of Puerto Rico, Inc. v. Charles Taylor Consulting Mexico, S.A. de C.V.

First Circuit: US v. Agramonte-Quezada

 Absent a showing of bad faith or prejudice, discovery delay in producing dog training records and logs did not require the trial judge to grant a continuance, as there were other discovery materials that might have opened the door to a challenging of the canine evidence.

Evidence of a prior canine indication was more probative than prejudicial, since the switching of vehicles in the interval and the deft's awareness of the narcotics traffic spoke to a continuing plan or scheme and rebutted the claim that he had been an unwitting courier.

Law enforcement testimony as to the usual trafficking operation wasn't impermissible overview testimony, as it came at the end of the trial, the witness was insulated from the particular case, and didn't reference any particulars.  Lay testimony of this nature gleaned from on-the-job experience is helpful to the finder of fact, and therefore permissible.

Court did not abuse its discretion in proceeding to sentencing rather than considering competency; the determination had been made earlier,and nothing in the colloquy prior to sentencing indicated sufficient incapacity. 

US v. Agramonte-Quezada

First Circuit: Cushing v. Packard

For claims arising from either of the federal statutes at issue, a suit against an officer of a state legislature in their official capacity, and in which the state is not named in the action, is against the legislator personally in their legislative capacity and doesn't implicate state sovereign immunity.

If Congress can abrogate conduct-based legislative immunity, as opposed to status-based sovereign immunity, a clear statement to that effect in the law is required.

State legislature did not waive its officers' legislative immunity from disability related discrimination  claims by accepting federal funds for the legislative session costs pursuant to a federal statute with an antidiscrimination clause.

Legislative immunity bars a suit against a state officer where the injunctive remedy would effect a change in the rules that was more than merely casually or incidentally related to legislative affairs.

Legislative immunity under the Speech and Debate clause can't be limited by the state's adoption of a less expansive standard in its own law.

Extraordinary exceptions to legislative immunity aren't available, since, among other reasons, the legislature was following independent procedural rules, rather than changing them.

DISSENT:

Purpose of the immunity is to prevent the disenfranchisement of the people.  Effective ouster and disenfranchisement of some can't therefore be immunized in the interests of protecting others. Only immunizing conduct that isn't facially discriminatory opens the door to facially neutral but discriminatory rulemaking.

Cushing v. Packard

Patent Cases in the Federal Circuit

 Sometimes I take a swing at these, but the time is running short today.

https://cafc.uscourts.gov/opinions-orders/20-2163.OPINION.3-24-2022_1926100.pdf

https://cafc.uscourts.gov/opinions-orders/21-1725.OPINION.3-24-2022_1926111.pdf

-CB

Eleventh Circuit: Fuad Fares Fuad Said v. U.S. Attorney General

 Given the plain language of the proscription, and the fact that the wider prohibition encompasses actual (as opposed to hypothetical) substances, the state crime isn't a valid immigration predicate, as the divergence is significant enough to constitute, as a matter of law, a reasonable probability of prosecution under the state law for acts that would exceed the reach of the federal law.

Fuad Fares Fuad Said v. U.S. Attorney General

Eleventh Circuit: John Doe v. Samford University, et al.

Errors in university investigation could be attributed to ineptitude, inexperience, and pro-complainant bias, and therefore don't raise a plausible inference sufficient to state a claim of discrimination on the basis of gender.

CONCURRENCE:

When resolving a motion to dismiss, a court must draw reasonable inferences in favor of the non-movant.

John Doe v. Samford University, et al.

Ninth Circuit: Estate of Clemente N. Aguirre v. County of Riverside

Issue of qualified immunity for a police officer is for trial, since the use of deadly force against an armed individual in a volatile situation is unconstitutional absent proof of threat to others.

Estate of Clemente N. Aguirre v. County of Riverside

Ninth Circuit: USA v. Edwin Mendez

Given the statutory right not to be tried as an adult for crimes committed as a juvenile, denial of the dismissal of a post-majority superseding indictment charging the deft with a different set of crimes is sufficiently final to be the basis of an interlocutory appeal.

Deft's post-majority acts of conspiracy ratified their juvenile acts, enabling them to be charged as an adult, despite the fact that the acts had already been the subject of juvenile proceedings.  The ratification both removed the statutory protections against the transfer to adult proceedings and converted the pre-majority conspiracy to a crime rather than an act of delinquency.

USA v. Edwin Mendez

Eighth Circuit: United States v. Gary Smith

 Discussion of rehabilitative treatment duration during sentencing doesn't justify an inference that the sentence was increased for that purpose, since other factors were recited at sentencing.

Sentence not substantively unreasonable given incorrigible behavior.

United States  v.  Gary Smith

Eighth Circuit: Colby Beal v. Outfield Brew House

 Telephonic communications device that stores a predefined list of numbers and then randomly or in a defined manner selects and dials certain numbers doesn't come within the statutory proscription of random dialing machines.

CONCURRENCE IN PART:

Footnote that recites Supreme Court GVR's and denials of certiorari is error, as they're not precedential.

Colby Beal  v.  Outfield Brew House

Seventh Circuit: K.F.C. v. Snap Inc.

 As, under state law, the voidable aspect of an infant's contract is a defense against performance, not a bar to formation, the arbitration waiver within the contract is therefore valid, and questions of whether enforcement would be against public policy is within the scope of arbitration.

 K.F.C. v.   Snap Inc.

Seventh Circuit: USA v. Arthur Robinson

 Since the state statute prohibiting the discharge of a firearm towards persons, occupied structures, and occupied vehicles requires a higher mens rea than recklessness, its status as a sentencing predicate wasn't changed by a Supreme Court holding that recklessness was an insufficient basis for a conviction involving the threatened or actual use of force against another person.

Issue was forfeited, not waived, when not raised on first appeal.

USA v.   Arthur Robinson

Seventh Circuit: Gorss Motels, Inc. v. Brigadoon Fitness Inc.

 Court did not err in denying certification of a class based on a statutory claim of sending unsolicited facsimile advertisements; although the unsolicited nature of the communications is an affirmative defense to be established by the defendant, the predominance inquiry looks to the actual management of the claim, and certification risked a multiplicity of mini-trials on the issue.

Court's handling of the implied consent issue was appropriate to the certification stage, as defendant's claim wan't speculative, vague, or unsupported.

Consent provided to third parties isn't considered transferred consent where the original consent included messages from affiliates and vendors.

Gorss Motels, Inc. v.  Brigadoon Fitness Inc.

Sixth Circuit: Bretton Westmoreland v. Butler Cnty.

For pretrial detainees, a Fourteenth Amendment deliberate indifference claim requires something like objective reckless indifference rather than the subjective possession of sufficient knowledge to infer a risk of harm.

DISSENT:

Circuit precedent compels a subjective element; civil law negligence standard is categorically beneath the threshold of a constitutional due process claim; requiring an intentional action begs the question of sufficient knowledge; these facts would satisfy even the majority's novel test.

Bretton Westmoreland v. Butler Cnty.

Fifth Circuit: USA v. Henderson

 Supervised release condition delegating to the parole officer the discretion to determine in which cases a certain condition applied wasn't plain error.

USA v. Henderson

Fifth Circuit: Woods v. Cantrell

 A single use of a racial epithet in the workplace can state a claim under Title VII.

Woods v. Cantrell

Fifth Circuit: Trafigura Trading v. USA

 As the fees assessed on the exported oil don't accrue any benefit to the exporters, but are rather directed to things generally useful to society, the assessment is an unconstitutional tax, rather than a permissible user fee.

DISSENT:

There are issues for trial, since the assessments aren't tied to the value of each barrel, and there is no explicit requirement in the precedent that the exporter be the sole beneficiary of the fees assessed.

Trafigura Trading v. USA

Fifth Circuit: USA v. Mesquias

 Where testimony objectively establishes fraudulent medical billing practices, there is no categorical requirement to establish actual falsity of diagnosis in particular cases.

When appealing a denial of a chance to speak at sentencing, the appellant must cite a basis for reversal or remand, or make a proffer of evidence that would have been offered.

Sufficient evidence of pervasive fraud to shift the burden of proof on the calculation of damages.

USA v. Mesquias

First Circuit: St. Paul's Foundation v. Ives

 Monastery's Free Exercise rights were not impermissibly burdened by regulation of building construction; in seeking to reinstate the earlier approval while recharacterizing the use of the space in a manner that would eventually require the installation of additional facilities, enough doubt was cast on the legitimacy of the reinstatement that there is no issue for trial as to whether the withholding of reinstatement was arbitrary and capricious.

St. Paul's Foundation v. Ives

First Circuit: Valentin-Marrero v. Commonwealth of Puerto Rico

 As the relief sought exceeds the bounds of the earlier favorable ruling by the ALJ, plaintiff was required to exhaust administrative remedies prior to seeking judicial relief for alleged noncompliance with the earlier ruling.

Valentin-Marrero v. Commonwealth of Puerto Rico

Ninth Circuit: Weston Family Partnership LLLP v. Twitter, Inc.

 Although the appeal was untimely since the district court had dismissed with leave to amend, the subsequent final order in the case cured the defect.

Absent earlier specific or unqualified statements about the ongoing project, the company had no duty to disclose the setbacks to investors.

Usual timeline between discovery of bug and disclosure of repair insufficient to establish that the company's statements on the matter were false.  Forward-looking statements would in any event be subject to the safe-harbor, as they were appropriately qualified.

Control-person liability is derivative of the claim against the company; these facts are insufficient to support such a claim.

Weston Family Partnership LLLP v. Twitter, Inc.

Sixth Circuit: Laborers' Int'l Union of N.A. v. Terease Neff

 The court whose employees have joined a union is a state, not county, entity for purposes of sovereign immunity, given its constitutional and statutory designation within the state.  The fact that the state has mandated that the county fund the operations of the court and that the county has discretion in setting the salary levels of the employees supports this, as the mandate is from the state.  As the elected state judge exercises ultimate authority in discharging and retaining employees and sets salaries in the first instance, the employment functions of the court are a state matter.  

The Contracts Clause is an insufficient basis for S1983 claims.  

A Takings Clause injunction would require that there was no remedy sounding in contract; mere breach of contract doesn't state a claim for damages under the Clause.  

CBA term in preamble holding that it remains in force until union is decertified or another agreement is reached insufficient to defeat as a matter of law a specific end date in the terms.

Laborers' Int'l Union of N.A. v. Terease Neff

Sixth Circuit: Frank Fisher v. Michelle Perron

Where a state intermediate appellate holding gives a statute a certain construction, the reading is determinative for a federal court attempting to ascertain the views of the state courts, absent persuasive data to the contrary.

State tort of disclosure of private information requires disclosures to be materially highly offensive.

Wiretap Act exemption to one-party consent requires that the interception or recording be for the purpose of committing a crime or tort; facts here insufficient to establish that.

Frank Fisher v. Michelle Perron

Fifth Circuit: Arnone v. County of Dallas

 A prosecutor elected within a county and acting within a county is, however, a state officer as opposed to a county officer when deciding questions of or setting policy relevant to the revocation of deferred adjudication in individual cases.  

Arnone v. County of Dallas

Fifth Circuit: Vitol v. USA

When a fuel is correctly categorized as taxable under the statute, it is ineligible also to be categorized as an alternative fuel, since the latter statute excludes fuels encompassed by the definition of taxable fuels.  The statutory scheme is clear enough to defeat a plain meaning argument to the contrary.  Any partial categorization of a blend as partially alternative would require a clear statement in the statute.

DISSENT:

The provision making the two categories mutually exclusive is in the excise tax portion of the Code, so the tax credit language in another area isn't bound by it, given plain meaning to the contrary.  The excise provisions define the wide swath of the tax categories, and the credit provisions define particular instances.  Ordinary meaning is the Star of Bethlehem.

Vitol v. USA

Fourth Circuit: US v. Lenair Moses

SUPPORTING DENIAL OF EN BANC:

 The question of whether a Supreme Court precedent has been overruled requires a clear statement from the Court.  

A panel decision validating the new standard isn't in irreconcilable conflict with a contemporaneous (yet subsequent) panel holding that the earlier (conflicting) precedent still controls to a degree.

DISSENTING FROM DENIAL OF EN BANC; VOTING FOR EN BANC:

First panel holding controls; this risks stoking confusion.

VOTING FOR EN BANC:

If the statements in the subsequent holding were dicta, the court would have said that clearly; public and Congressional confusion over the state of the circuit law on the question.

US v. Lenair Moses

Fourth Circuit: Evens Julmice v. Merrick Garland

 Silence of the immigration statute as to whether the citizen whose child is seeking to immigrate needs to be alive at the time of application isn't sufficient to justify deference to the agency's interpretation imposing the requirement.

Evens Julmice v. Merrick Garland

Second Circuit: Washington v. Napolitano

 

Police officers swearing to arrest warrant affidavit and effecting arrest were not performing functions closely tied to the judicial process in allegedly acting at the prosecutor's explicit instructions; a prosecutor providing testimony in support of a warrant would similarly not be shielded by absolute prosecutorial immunity.

Omission from affidavit testimony of factual details critical to the authorizing magistrate's assessment creates an issue for trial as to whether the totality of the omissions were material.

DISSENT: 

Arguable probable cause; officers' subjective belief in innocence would be immaterial.

Washington v. Napolitano

Second Circuit: JN Contemporary Art LLC v. Phillips Auctioneers LLC

 Force majeure clause could be invoked to cancel the contract; there was no obligation to reschedule or change the manner of performance.

The catch-all term of the force majeure clause justified the cancellation, even under strict construction; eusdem generis reading of the enumerated grounds implies that any societal disruption not due to fault or negligence and beyond the parties' control qualified.

Discretionary postponement of performance according to state advisory guidance was a de minimis breach, if at all, since by the time of scheduled performance, the state had issued compulsory guidance.

Absent explicit language of condition, courts can't look beyond integrated agreements to infer that one is conditional upon performance of the other.

Violation of the covenant of good faith and fair dealing doesn't state a claim where it is based on the same theory and facts as the breach claim.

JN Contemporary Art LLC v. Phillips Auctioneers LLC

The rest of the story

 

Tenth:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563811.pdf

DC:

https://www.cadc.uscourts.gov/internet/opinions.nsf/BC7CB0DD9CAE2B6285258734004E532E/$file/20-5032-1910440.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/6702971D442C34F285258734004E5347/$file/20-5079-1910446.pdf

Fed Circ

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-2344.OPINION.8-19-2021_1821952.pdf

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-2321.OPINION.8-18-2021_1821287.pdf

Tenth Circuit: Animal Legal Defense Fund, et al. v. Kelly, et al.

 

Since the Act prohibits making false statements in an attemp to gain consent to the control of property with the intent to damage the interests of the facility, its viewpoint discrimination requires strict scrutiny.

Not all attempts to damage the enterprise of an animal-processing facility are harms that would merit decreased First Amendment protections.

Under circuit precedent, the photographing of animals or taking notes about habitat is creating speech; the law's criminalization of this when done for the purpose of injuring the enterprise is similarly viewpoint discriminatory.  The state can't limit the scope of its prohiitions due to the favor or disfavor of the message.

The same holds for trespassing with the intent to harm the enterprise.  Although there is no right to trespass, false speech is an element of the offense through the requirement of effective consent.

DISSENT

Better remedy would be severence of deception from the intent requirement.

Regulating false statements of fact that cause harm is constitutional.

Right to choose who enters one's property is fundamental.

The law merely distinguishes harmful trespass from trespass without the intent to harm.

The actual speech here isn't implicated, but rather the intent behind the speech.

Private landowners generally have the right to restrict photography on their premises.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563866.pdf

Ninth Circuit: Ford v. Peery

 

DISSENT FROM DENIAL OF REHEARING EN BANC

Panel inappropriately hypothetically considered the law as misstated by the prosecutor under AEDPA deference, rather than considering the state court's judgment of the prejudice caused by the statement.

Dicta on questions that are germane to the case and resolved after reasoned determination in a published opinion are binding in the circuit.  This has proved problematic and some have said that it's in tension with Article III.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf

Ninth Circuit: Marroquin v. Garland

 

Given the identical punishments, the structure of the statute tends to suggest that the two proscribed acts are two means of committing the same offense, rather than two distinct offenses, and no caselaw or charging documents in the present case indicate a certainty to the contrary.  Intervening higher authority allows the present panel to overrule a circuit decision to the contrary that was based entirely on the statute's phasing in the disjunctive.  As the offense is more broad than the generic crime, the law is not a valid immigration predicate aggravated felony.

DISSENT:

Under the state's law, principals and accessories after the fact are mutually exclusive roles that inherently require different elements of proof.  Charging document establishes that petitioner was convicted as a principal.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-72922.pdf

Ninth Circuit: Stiudent A v. San Francisco Unified School District

 

Although the plaintiffs claim to be pursuing a systemic claim addressing widespread shortcomings, they aren't challenging a policy or practice of general applicability, but rather pointing out several instances in which the system didn't work correctly; administrative exhaustion is therefore required in order to develop the administrative record and give the state a chance to remedy the situation.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/20-15386.pdf

Ninth Circuit: Sura v. Garland

 

Evn absent evidence of their credibility, an Interpol Red Notice and a foreign arrest warrant for a serious nonpolitical crime can, in the light of concessions made by the petitioner, constitute serious reason to believe that the petitioner committed the crimes referenced, and therefore a basis for shifting the presumption when applying for cancellation of immigration removal.

 Even absent a formal adverse ccredibility decision, the suspicious timing of the petitioner's departure from El Salvador, and the IJ's determination of lack of specificity is sufficient evidence to establish that the petitioner did not prove by a preponderance that there wasn't serious reason to believe that he had committed the crimes.

Withholding of removal under the torture convention also sufficiently supported, given the unlikeliness of the foreign government's consent or acquiescence in any future torture.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-71839.pdf

Ninth Circuit: Herring Networks v. Maddow

 

As precedent compels that the state-law right to preemptive dismissal of spurious defamation claims be treated as a dismissal for not stating a claim if made on a matter of law and as a summary judgment if made on a fact-dependent determination, the court was powerless to look beyond the pleadings to the additional evidence provided by the non-movant when adjudicating it as a motion for preemptive dismissal on a matter of law.

A reasonable viewer would discern from the tenor of the show that the only fact being reported by the television host was the content of the news story being discussed, and that the rest was opinon and commentary.  By disclosing the specific factual basis of the statment, the host reveals the rest to be commentary and hyperbole.

No abuse of discretion in denying leave to amend, since it was never requested, and would have proved futile anyway.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-55579.pdf

Ninth Circuit: Allison v. Tinder

 (Rakoff of SDNY, J.)

 The court's assessment of the plaintiffs' case deprecated a holding in which the plaintiff class members were also putative members, and in which the holding favorable to their interests was law of the case, in which they would release their claims by the present settlement.

Given this diminishment of the plaintiffs' claim, the fact that the value of the injunctive relief to the class was unsupported, the fact that many class members were no longer site members or might not seek relief, the existence of a clear-sailing provision and the substantial amount of plaintiffs' attorneys' fees meant that the court abused its discretion in approving the settlement.

The approval of the attorneys fees was an independent abuse of discretion, since it was calculated as a percentage of the sum of the value of injunctive relief that should have formed no part of the calculation and an estimated cash payment that assumed a full claim of the award.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-55807.pdf

Ninth Circuit: Sharma v. Garland

 

As there was only one session of physical beatings, the single detention was only 18-19 hours, the threats were relatively few, and the instruction by the local police to his customers that they shouldn't repay their loans was offset by the fact that the petitioner wasn't killed and was free to seek other employment, there was substantial evidence for the Bureau's determination that past persecution was not proved.

Similarly, the Bureau's determination of insufficient evidence to show a reasonable fear of future persecution is supported by the decades since petitioner left the country, his family's continued residence there, and petitioner's past international travel after which he was able safely to return to his home country.

The determination that past harms didn't rise to the level of persecution necessarily entails the premise that the past harms didn't amount to torture.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-70238.pdf

Ninth Circuit: USA v. Amauje Jason Ferguson

 

Magistrate Judge's omission of query about compulsion from the plea acceptance colloqouy was insufficient plain  error for reversal, since, absent a claim that compliance with the rule would have resulted in a different plea, there was no effect on substantial rights, and the text of the rule deems errors that don't affect substantial rights to be harmless.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-10228.pdf

Eighth Circuit: Leroy Leftwich v. County of Dakota

 Absent a showing of delioberate indifference or subjective awareness of risk to the detained arrestee, there is no issue for trial on the S1983 claim.

Absent a policy of mental health screening, using personal assessment to answer the mental health questions on the intake form was a discretionary act, rather than ministerial in nature, as was the staff's personal meeting with the arrestee.  County's decision to have a formal mental health assessment 72 hours later was policymaking, not operational, and therefore incurred statutory public entity immunity.

Court did not abuse its discretion in denying aleave to amend to a party who did not notice the depositions witnesses who could provide the information that ws the basis of the motion to amend prior to the last date to amend the claim.

http://media.ca8.uscourts.gov/opndir/21/08/201821P.pdf

Eighth Circuit: Designworks Homes, Inc. v. Thomson Sailors Homes, L.L.C

 

Given the differences in their designs, triangular atria alone are insufficient to establish the identity of total concept and feel necessary for copyright infringement; no reasonable minds could differ on whether there was a substantial similarity of expression in the designs.

Although the court erred in saying that attorneys fees awards were the rule rather than the excpetion, it did not abuse its discretion in the actual award of fees in this case.

http://media.ca8.uscourts.gov/opndir/21/08/193458P.pdf

Seventh Circuit: Thomas Prose v. Molina Healthcare of Illinois,

 

Evidence as to where, how, and to whom allegedly false representations were made can state a claim under the statute for fraudulent claims against the government.

Evidence as to the who, what, where, when, and how can state a claim for fraudulent inducement in contractual negotiations; a relator who is not a party to the negotiations might be unable to provide details of the negotiations.

Implied false certification is a species of fraud, and therefore subject to heightened pleading.   

Continuing to bill the set capitation after ending the subcontracting that provided enhanced services states a claim for implied false certification under the Act, since the services were a material term of the deal.

DISSENT (CJ)

Mere request for payment from the government while not materially complying with a contractual term is insufficient to state a claim under the Act, given the Act's extreme remedies, including treble damages.

Contract was a contract to provide beneficiaries with access to needed services, not needed services themselves.

These circumstances wouldn't state a claim, even absent heightened pleading.  There was no express factual falsity; the omission was an implied falsity.  Precedent requires that a request for payment also make specific representations in order to be actionable.  Suggesting that noncompliance is material means that any noncompliance is material.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-19/C:20-2243:J:Wood:aut:T:fnOp:N:2749985:S:0

Seventh Circuit: Jerry Smith, Jr. v. Melvin Finkley

 

Given issues of material fact about whether plaintiff was surrendering to police or lunging for gun and whether plaintiff was an immediate threat to safety of officers or others, court has no jursdiction to decide either aspect of the issue of qualified immunity on interlocutory appeal.  The fact that the plaintiff wasn't combative or armed complicates the application of relevant precedent that asks if the right was clearly established

An appeal of the sufficiency of the evidence for the denial of quualified immunity can't be decided on interlocutory review.

DISSENT (CJ)

Some of the benefit of qualified immunity is lost if the case is allowed to go to trial; the question is conceptually separate from the underlying claim.  The evidence establishes the historical facts of this situation, and the appellate courts can resolve the issues of law arising from those facts.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-18/C:20-1754:J:Sykes:dis:T:fnOp:N:2749716:S:0

Seventh Circuit: Blake Conyers v. City of Chicago

 

Claim arising from the destruction of arrestees' property after a set period sounds in 14A Due Process or 5A Takings, not under the Fourth Amendment.

While the property was taken under the police power rather than eminent domain, federal constitutional limits remain on the disposal of the items.  In this context, a thirty day holding period with adequate notice suffices for the purposes of the Fifth Amendment.

Screenshot with evidentiary foundation from the head of department suffices to establish that the website was functioning during the relevant period.

Plaintiffs' burden to prove that they lacked access to the internet in order to discover the relevant notice requires that they establish why the specific procedures of mediated inmate internet reference access were insufficient.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-18/C:20-1934:J:Wood:aut:T:fnOp:N:2749668:S:0

Seventh Circuit: Marvin Carter v. Chris Buesgen

Where a federal court dismisses without prejudice in order to allow exhausion of pending direct and Habeas claims in the state system while determining that there has been inordinate delay in those claims, the futility of either amendment or recourse to the state system can make the dismissal without prejudice sufficiently final for appellate jurisdiction.

 Extreme delay in the state system can excuse the federal statutory requirement that state claims first be exhausted.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-18/C:20-3140:J:Scudder:aut:T:fnOp:N:2749770:S:0

Sixth Circuit: Henry Kaplan v. Univ. of Louisville

 

Ex Parte Young isn't available as an exception to the state university's sovereign immunity, as the university is not a state official, and administrators are being sued in their personal capacities here.

Absent statute or contract, there is no property interest in the appointment to department chair if  that chair does not itself lead to a form of tenure.

A dismissed professor can have received adequate due process even if the reviewing committee declined to recommend dismissal.

Placement on paid leave prior to dismissal proceedings was not a deprivaiton of due process, given the evidence in the record and the sufficiency of the proceedings.

Plaintiff must have exhausted 14A liberty interest claim in reputation by requesting a name-clearign hearing; the university was under no obligation to provide for it in its procedures, its refusal to toll the statute of limitations for the present suit did not preclude a paralell proceeding, and the present suit is not a sufficient proxy.

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0187p-06.pdf

Second Circuit: Jian Liang v. Garland

 Petitioner's omission of the manner in which he discovered that he was on a blacklist was not a minor or extraneous detail, and the nationalization of the persecution implied by the blacklist was central to the claim; the late disclosure cannot be excused by saying that the petitioner and witnesses considered it a minor detail.  

Agency was under no obligation to continue the proceedings to discover corroborating evidence. Adverse credibility determination based on the belief that the detail was a fabrication is well supported by the record.

Insufficient evidence of country-wide persecution of people of petitioner's faith.

https://www.ca2.uscourts.gov/decisions/isysquery/7a798798-c807-4d88-a568-c3ee0be346ec/1/doc/18-2257_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/7a798798-c807-4d88-a568-c3ee0be346ec/1/hilite/

First Circuit: US v. Saccoccia

 

Pandemic disease does not transform aggregated minor health concerns into the extraordinary and compelling justificaiton for early release required by statute.

Actual diagnosis, rather than the presence of diagnostic markers indicating likelihood but not certainty, is required in a petition for early release on compassionate grounds.

While material interference by prison administration or stonewalling of medical testing can be the basis of a claim of extraordinary and compelling justification, the record here does not support such a claim.

District Court's averral that it was exercising its broad discretion in denying early release given the balance of the factors was sufficient; there was no need to mechanically review each of the sentencing factors.

http://media.ca1.uscourts.gov/pdf.opinions/20-2045P-01A.pdf

First Circuit: Ass'n Hosp. del Maestro, Inc. v. Becerra

 

Agencies can exercise discretion only in places of ambiguity or silence; they are unable to amend a clear statutory mandate that seems at odds with the purposes of the legislation. Agency did not err, and the rulemaking did not run afoul of the APA.

Agency's implementation according to statute did not offend Equal Protection; proof of discriminatory of intent would also be needed.

Mandate requiring extension of policy in the same manner and to the extent that it applies to existing facilities mans that the same methodology should be implemented to the same extent, not that the facilities should be funded to the same extent.

http://media.ca1.uscourts.gov/pdf.opinions/19-1475P-01A.pdf

Eighth Circuit: Ascente Business Consulting v. DR myCommerce

 

Proof that a company had certain knowledge prior to its employees' contrary statements is insufficient to state a fraud or fraud-adjacent claim under the state's heightened pleading rules.  

Evidence that work stopped after a certain meeting can't speak to the mindset of statements made at that meeting.  Evidence of a contrary financial interest is at most only a factor, as is the amount of work that it would have taken to accomplish the task.

Expert testimony on ambiguity of contract terms is inadmissible, as ambiguity is a legal conclusion.

Given testimony that the overruns were paid to preserve the business relationship, there was no question for trial on the reliance on the underlying representations. Under state law, the counterparty's expectations of the plaintiff's reliance are insufficient to establish the plaintiff's reliance.

http://media.ca8.uscourts.gov/opndir/21/08/202474P.pdf

Eighth Circuit: Anthony Vines v. Welspun Pipes Inc.

 

Court did not clearly err in refusing to sanction a settlement under the statute due to the fact that the attorneys' fees had not been negotiated separately from the underlying claim, given the simultaneous negotiation in emails, calculation of fee on the basis of the the case proceeding without settlement, and implicit tying of the agreement on fees to the agreement on the underlying claim.

Award of de minimis attorneys' fees was an abuse of discretion, as the amount must be determined by determination of the lodestar value by multiplying the hours and the rate.

Given that the only rmaining matter is the calculation of attorneys' fees, no plain error sufficient to reassign on remand.

DISSENT:

Negotiating a wage claim simultaneously with the fees creates a significant conflict of interest.   Plaintiffs counsel, in fee negotiations, said that deft was getting a "pretty sweet deal."  Court below held that lodestar was inapplicable on this record.

http://media.ca8.uscourts.gov/opndir/21/08/202168P.pdf

Eighth Circuit: Ka'Torah Prowse v. Walter Washington

 

When an administrative appeal is filed under the statute, and the petitioner maintains that the papers were filed on certain dates and in a certain order, but this is contradicted by the receipt stamps on the documents, the issue presents a question for trial; the date stamps are not dispositive.

https://ecf.ca8.uscourts.gov/opndir/21/08/201995P.pdf

Eighth Circuit: United States v. Clarence Robinson

 

Existence of a second statutory basis, based on the drug quantity determinations made during sentencing, for the life sentence imposed at original sentencing does not make the petitioner ineligible for relief under the statute.  Since the statute looks to the offense of conviction and not the underlying facts, the sentence imposed for the offense of conviction should be modified.

DISSENT:

Given the findings, the petitioner would have been sentenced under the second statutory basis at the original sentencing, which makes him ineligible for relief.

http://media.ca8.uscourts.gov/opndir/21/08/201947P.pdf

Eighth Circuit: Scott McLaughlin v. Anne Precythe

 

Although a simple Google search would likely have revealed the impeachment evidence against the defense expert witness in a capital case, not investigating the witness beyond a reasoble reliance on the judgment of the professional commnity was not ineffective assistance of counsel.

Petitioner wasn't prejudiced by lack of replacement psychologist's testimony, a witness who would have provided evidence on an aggravating factor on which the jury ended up not being able to reach a decision, since from a legal point of view the testimony would have been duplicative of the overwhelming evidence on this point; there was therefore not a substantial likelihood of a different result.

AEDPA deference to state habeas finding to the contrary offers an independent ground for overruling the district court ruling that petitioner was prejudiced by the lack of testimony.

Since the ineffective assistance claim wasn't substantial, petitioner can't raise it in federal habeas after defaulting in state habeas, since excuse of default requires a substantial claim.

While jury instructions can't require that a jury be unanimous on any one mitigating factor, they can require that the jury be unanimous in its decision that the mitigating factors outweigh the aggravating factors.

District Court erred in holding that the weighing of mitigating and aggravating circumstances was a finding of fact upon which the legislature had conditioned an increased punishment and that therefore must be performed by the jury, since the supreme court of the state has held in this case that the same precedent referenced by the district court was inapplicable.

CONCURRENCE:

Although the investigation of the expert witness was insufficient, there was no prejudice, given the other evidence offered.  

State supreme court has held that only the existence of a single mitigating factor need be found by the jury under the statutue, as it constitutes eligibility for the increased sentence.

http://media.ca8.uscourts.gov/opndir/21/08/183510P.pdf