Where the contract encompasses both construction management and independent quality assurance, the question of whether the expert was functioning as a manager or an outside expert presents an issue for trial when determining the scope of an insurance policy.
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Sixth Circuit: Rudolph Betancourt v. Indian Hills Plaza LLC
No abuse of discretion in fees and costs award, given the quality and manner of representation and securing expert witnesses. Court appropriately reduced lodestar calculation based on unnecessary filings, despite claim that the early fees award motions were justified, since simultaneous remediations of the property might have left the plaintiff as the non-prevailing party.
Sixth Circuit: Bradley M. Peterson v. Kristina M. Johnson
For purposes of the property interest in law, emeritus status at a state university is not considered employment. Absent pay or benefits, the status does not create a property interest at law. Property interest in the status is analogous to a liberty interest in reputation, which procedurally would require a request for a name-clearing hearing to exhaust non-judicial remedies.
Fifth Circuit: USA v. Villarreal
Where a Habeas petition claims that a prior offense wasn't a valid predicate because it wasn't limited to crimes involving a use of force, and subsequent to vacatur and remand, a certificate of appealability issues challenging the predicate on the ground that it includes reckless conduct, the fact that pro se prisoner Habeas petitions should be construed liberally allows the original petition to be decided on the latter grounds.
DISSENT:
The distinction between the act and the mental state isn't sophistry; the petition didn't originally intend to raise the recklessness challenge.
Third Circuit: USA v. Jamar Hunter
Where there is more than one passenger in the car, it is not unreasonable for the police officer conducting a traffic stop to conduct an extended criminal history check on the occupants of the car for reasons of officer safety. The check was a negligibly burdensome precaution justified by officer safety concerns.
CONCURRENCE:
The record check was part of the stop itself, so no reasonable suspicion was required. Although required by precedent, reason to doubt that history checks improve officer safety. Racial profiling concerns.
Third Circuit: Maria Del Rosario Hernandez v. MicroBilt Corp
When the arbitration association designated in the consumer contract refuses to arbitrate due to the company's refusal to waive a damages limitation inconsistent with its charter, it isn't a matter of arbitrability that might have to be formally decided by an arbitrator, but a threshold requirement properly decided by the association itself. It speaks to how the agreement operates, rather than whether it applies.
Plaintiff's court claim is not prohibited by the Exclusive Resolution term of the contract, as the plaintiff complied with all arbitration provisions, and claimants can return to court after an arbitration concludes. The return to court is without consideration of the merits of the arbitration, and further arbitration can't be compelled under the contract.
Second Circuit: Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen
There was substantial evidence for agency's determination that petitioner could safely relocate to a politically less dangerous area within home country, and no abuse of discretion in holding that this determination precluded a finding of well-founded fear of future persecution. Determination of the possibility of safe relocation precludes a finding of an objectively reasonable fear of future harm.
Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen
Second Circuit: Vans, Inc. v. MSCHF Product Studio, Inc.
Where an alleged trademark infringer incorporates with distortion the characteristics of the original product that indicate its origin and source, the enhanced First Amendment protections for parodies are properly not considered in the preliminary injunction analysis under the statute.
Given the strength of the original marks, the intention to evoke the original marks by using the distorted design established a likelihood of confusion, especially since the original brand occasionally sold special forms of the shoe. Although it might be difficult to actually wear the shoe, enjoining court's determination to the contrary worthy of deference. No clear error in determination that the alleged infringement was of lower quality, but the court erred in holding that legally this worked in the favor of the party claiming infringement.
No abuse of discretion in ordering escrow of gross revenues, as party seeking injunction sought an accounting, and a damages award would include costs and fees. No error in not requiring bond from party seeking injunction, as non-movant didn't request it.
Federal Circuit: VLSI Technology LLC v. Intel Corporation
Substantial evidence for finding of infringement. In determining similar function under the doctrine of equivalents, schematic diagrams of functions are less important than actual function-location maps, in addition to the determination of whether the differences in the allocations of functionalities are substantial. Abuse of discretion to base the damages calculation on the results of a scientific test that considered both infringing and non-infringing functions.
Denial of motion to amend the answer was an abuse of discretion given diligent pursuit of claim, and given that the question of whether affiliates are bound by a contract under the state law identified in the contract is not a black-letter rule, and would require further development.
Federal Circuit: Saha Thai Steel Pipe Company Limited v. US
Amendment to the statute allowing for a corrective methodology in calculating the constructed value of an item given a particular market situation cannot be applied by the agency to the parallel calculation of the cost of production, which is used to determine if a product is being sold at less than cost.
Tenth Circuit: Hampton v. Utah Department of Corrections
A preexisting disability-neutral list of approved firearms for correctional peace officers cannot be the sole basis for denying a disability-related request to use another type of firearm. The request was plausible and facially reasonable.
Claim of instructions to delay accommodation requests until after initial probationary period does not present an issue for trial as to the existence of a discriminatory policy. A claim that accommodation requests "generally filter up" to the decisionmaker does not, standing alone, present a genuine issue for trial as to whether the decisionmaker was aware of the request.
Court did not abuse discretion in refusing to allow plaintiff to testify about the disability as an expert, given lack of proof of reliable scientific methodology.
Ninth Circuit: Center for Biological Diversity, et al. v. Deb Haaland et al.
A claim of actual water savings elsewhere to offset water taken from a river under the Act must be established with reasonable certainty. An effect is reasonably certain if it is established by clear and substantial information, rather than speculation and conjecture. Reserving certain lands is insufficient absent proof that those lands would otherwise be used for agriculture.
Scientific proof that the species is an opportunistic forager provides sufficient evidence for the determination that its members are likely to migrate after the reduction in water levels. The distance a snake might travel away from a river is fundamentally different than the distance that a snake might travel along a river. Agency's determination of minimal impact to species not arbitrary and capricious.
CONCURRENCE:
As the agency's determination doesn't meet the simple criterion of "likely," the standard of "reasonable certainty" is dicta.
Center for Biological Diversity, et al. v. Deb Haaland et al.
Ninth Circuit: Jaime Charboneau v. Tyrell Davis et al.
In a second or successive Habeas petition, the clear and convincing proof of actual innocence must have a direct nexus to the facts underlying the claim of the constitutional violation, and it examines all of the evidence in the record available to the reviewing court, without regard to admissibility.
The facts from the earlier findings that are to be taken to be true are not the ultimate determinations, but the evidentiary proffers underlying the claims; a presumption of correctness is attributed to findings of authenticity. A letter held to be a copy of an unavailable original is sufficiently established as to authorship, but may be questioned for probity and reliability.
Where the circumstances of the newly discovered evidence credibly suggest the petitioner's involvement in forgery, a rational factfinder might reasonably weigh the consciousness of guilt suggested by the events in determining the reliability and probity of the evidence.
Eighth Circuit: United States v. Juanita White Shield
Court did not abuse discretion in denying mistrial where a witness referred more than once to the deft being on probation. Evidence of guilt was more than ample, and a limiting instruction sufficed.
Where a court waives interest for a monetary penalty in the delivered judgment, but this term is omitted from the written judgment, the delivered version controls.
Eighth Circuit: Saul Aguilar-Sanchez v. Merrick Garland
Where the proposed generic federal definition of the crime includes a mens rea element of desire or gratification, a state statute requiring the intent to hire someone for those purposes has sufficiently similar scienter. State decision that an incidental harassing solicitation of passerby demonstrated sufficient intent for a parallel statute did not make the state statute's reach broader than that of the federal crime.
Sixth Circuit: Marlean Ames v. Ohio Dep't of Youth Servs
Plaintiff's own circumstances insufficient to establish a pattern of discrimination, and when combined with the fact that the decisionmakers for the allegedly discriminatory employment decision are members of the same majority classification, is insufficient to establish the background circumstances required to find that a member of a majority classification was discriminated against.
Sufficient evidence for the nondiscriminatory explanation. Having several nondiscriminatory reasons advanced for the decision after the fact is insufficient to establish pretext if the reasons don't contradict.
Sixth Circuit: Island Creek Coal Co. v. Elizabeth Maynard
Sufficient evidence for the ALJ to have discounted the medical opinions as conclusory and disagreeing with the specific disability criterion rather than refuting it.
Materials filed with the Board cannot be incorporated by reference in an Article III appeal. Sufficient evidence for the ALJ to find that the disability met the legal threshold, even absent proof that it met a clinical threshold.
Sixth Circuit: United States v. James Wilder, II
No plain error in admission of testimony on competence of police officer in identifying a firearm, where a prejudicial inference might have existed that firearms were common in the area.
Rational factfinder could have found that the deft's statements were a substantial step towards witness tampering, distinct from solicitation, in that they counseled, commanded, or induced someone to engage in the practice.
Represented deft's pro se motions by letter separate from attorney's filing not considered.
Fifth Circuit: USA v. Robinson
Sufficient evidence for the jury to have disbelieved the witness' recantation. Sufficient evidence for the federal obstruction charge where the prompting was procedurally about a separate state investigation, but dealt in substance with the set of events that became a federal matter.
Absent specific briefing, body camera footage outside of the portion agreed to be admissible as a prior statement of identification isn't coherent enough for appellate review as to specific statements. Admission not substantial injury and cumulative in nature with respect to admissible evidence. Portions of phone calls admitted for context with admissible portions of the call, but without a limiting instruction, were harmless error, as they were cumulative with admissible statements elsewhere. Deft did not identify portions of the record that would justify a prior-inconsistent-statements instruction. Closing remarks were not improper, as they accurately characterized the victims as vulnerable, the invocation of justice was not calculated to inflame, inferences were appropriately made from the evidence, and the court appropriately limited the influence of the lawyers' opinions in the closing instruction.
Plain error where the court indicated that it might be bound by the earlier sentencing judge's order that the sentence for revocation of supervised release run consecutively with the subsequent sentence for the second offense.
Fifth Circuit: Robinson v. Lopinto
Absent a showing as to an increased ability to afford the bail, Habeas is unavailable where at least one of the counts subject to retrial isn't affected by the claim seeking the writ; the pretrial detention would be justified under the single count.
Fifth Circuit: Marquette Trans v. Navigation Mrtm
Although the appellant LLC did not sufficiently establish diversity jurisdiction by pleading the citizenship of all of it members, the fact that its claims sound in admiralty is sufficient for appellate jurisdiction, and the pleading should be amended on remand.
As state harbor pilotage regulation is a statutory exception to the general preemption of admiralty, the higher burden of proof under state law is not preempted by the preponderance standard of admiralty.
The pretrial objection to the admission of the evidence sufficiently preserved the issue for appeal; the argument in a separate pretrial motion that the evidence was inadmissible as summary evidence did not. Challenge to the admission of the accident reconstruction was harmless, as there was ultimately no claim that it was inaccurate or unreliable,
Motion to strike the jury demand for lack of the amount in controversy and an implied consent to proceed in admiralty doesn't preserve for appeal a claim that the jury trial was error because of lack of diversity. Also no showing of harm or constitutional violation.
Challenge to jury finding of lack of negligence and award of damages was forfeited for lack of a post-judgment motion for judgment as a matter of law. Evidence was sufficient, even under the higher standard of proof.
Court appropriately limited expert testimony.
First Circuit: Gibson Foundation, Inc. v. Norris
As a reasonable finder of fact could determine that the agreement to keep the piano in the warehouse was a consensual agreement that ultimately benefitted both parties, and under state law, claims regarding bailments can be subject to either the contract-claim or tort-claim statute of limitations, there exists an issue for trial as to whether the shorter limitation term applies.
Possession is sufficient for rebuttable proof of ownership at the time of the creation of the bailment; ownership, and therefore the validity of the bailment, therefore presents a genuine issue of material fact for trial.
A reasonable juror could find that the acceptance of the piano created an enforceable contract, as the owner of the piano saved storage costs, making for sufficient consideration. The term of the contract need not have been definite; possessing it until it was requested by the owner would be sufficient.
Genuine issue for trial as to ownership, given corporate succession beforehand; employee's statement that the piano would be "all yours" if picked up states a claim for transfer of ownership.
DC Circuit: James Blassingame v. Donald Trump
An incumbent campaigning to retain their present office is not carrying out the duties of the office. A President's speech on matters of public concern is not invariably an official function. Motion to the contrary can be made at summary judgment after development of facts supporting the claim.
The President attempted to alter the declared election results by various means.
The President has official immunity for all acts within the outer perimeter of official presidential responsibility, including discretionary acts within a concept of duty associated with the office. An action's unlawful nature or inappropriate purpose does not move it past this outer perimeter.
Actions taken in a plainly and purely unofficial context could be included in a test identifying matters of public concern. Inquiry into public/private capacity is distinct from this. An incumbent seeks re-election in a private capacity. Inquiry into capacity is objective and context-specific; if the inquiry yields no clear answer, the conduct is immune.
Claim under the "Take Care" clause presumes official capacity rather than establishes it.
Structural separation of powers claim for lack of immunity actually establishes the contrary, as it's Executive action. E.g., Steel Seizure cases.
First Amendment/incitement is a distinct calculus -- would afford protection when least needed, and vice versa.
Deft. has a right to develop the record for purposes of immunity prior to merits stage, as the immunity is immunity from suit.
CONCURRENCE:
Motive inquiry is intrusive. Objective reading of content could mislead. Speech clothed in the trappings of the office generally immune.
PARTIAL CONCURRENCE:
Scope of the interlocutory analysis appropriately limited to the denial of absolute immunity as claimed, rather than setting out a calculus for the determination of context-specific immunity.
Ninth Circuit: Jigar Barabaria, et al. v. Antony Blinken et al.
Denial of the temporary restraining order was appealable, given notice to parties, the fact that it was tantamount to the denial of a preliminary injunction, and the fact that it essentially decided the merits of the action.
Where the statute governing adjudication of status refers to availability of visas at the time of filing, but is silent as to availability at the time of adjudication, administrative rule requiring availability at adjudication is a reasonable construction of the statute.
Eighth Circuit: Ind.-Alliance Party of Minn. v. Steve Simon
Associational burden of a petition oath swearing to the lack of present intent to vote in a primary election for the contest in question is an insubstantial, and there are policy arguments in favor. Those signing are presumed to know the law, and therefore that the lack of present intent to do so doesn't keep them from actually voting in the primary--the deterrent effect as to the associational burden on the petition signing isn't to be considered under per se/strict scrutiny.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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,
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.
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.
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.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Fifth Circuit: Woods v. Cantrell
A single use of a racial epithet in the workplace can state a claim under Title VII.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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