Ordered en banc.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/12-56829.pdf
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.
Eighth Circuit: United States v. Levon Dean, Jr.
Hobbs Act robbery.
Where a statute has an express nexus to interstate commerce, the actual connection can be small; in this case, it suffices that the robbery affected the victim's ability to participate in interstate drug purchases.
Sufficient connection between the crimes for a common conspiracy, but harmless error, as participants were principals in both actions.
Because victim was hit rather hard on the head, there was sufficient bodily injury for the carjacking statute - injury need not be in or near the car.
As codeft had a distinctive walk while carrying a gun, sufficient evidence for knowledge of the gun.
Intent to affect interstate drug commerce not a necessary jury instruction for conspiracy count.
Constructive possession / vehicle instruction upheld.
Hearsay evidence properly considered in sentencing.
Sentencing court's denial of de minimis sentence for counts not subject to mandatory minimums was proper, despite the fact that the court stated that it did not have the power to impose a de minimis sentence.
http://media.ca8.uscourts.gov/opndir/15/12/151263P.pdf
Where a statute has an express nexus to interstate commerce, the actual connection can be small; in this case, it suffices that the robbery affected the victim's ability to participate in interstate drug purchases.
Sufficient connection between the crimes for a common conspiracy, but harmless error, as participants were principals in both actions.
Because victim was hit rather hard on the head, there was sufficient bodily injury for the carjacking statute - injury need not be in or near the car.
As codeft had a distinctive walk while carrying a gun, sufficient evidence for knowledge of the gun.
Intent to affect interstate drug commerce not a necessary jury instruction for conspiracy count.
Constructive possession / vehicle instruction upheld.
Hearsay evidence properly considered in sentencing.
Sentencing court's denial of de minimis sentence for counts not subject to mandatory minimums was proper, despite the fact that the court stated that it did not have the power to impose a de minimis sentence.
http://media.ca8.uscourts.gov/opndir/15/12/151263P.pdf
Eighth Circuit: Bonnie Hasenwinkel v. Mosaic
FMLA.
Claim for denial of leave properly dismissed, as the maximum period of leave under the statute had already been exhausted.
As employee was incapable of returning to work, no basis for challenging ending of employment.
Although a suspension with later backpay can be the basis for an FMLA claim, plaintiff did not allege any monetary harm from the act, and it was therefore properly dismissed as a matter of law.
No material adverse action in workplace generally.
A federal statute with an express right of action cannot serve as the "public policy" basis for a state tort claim of wrongful discharge.
http://media.ca8.uscourts.gov/opndir/15/12/143786P.pdf
Claim for denial of leave properly dismissed, as the maximum period of leave under the statute had already been exhausted.
As employee was incapable of returning to work, no basis for challenging ending of employment.
Although a suspension with later backpay can be the basis for an FMLA claim, plaintiff did not allege any monetary harm from the act, and it was therefore properly dismissed as a matter of law.
No material adverse action in workplace generally.
A federal statute with an express right of action cannot serve as the "public policy" basis for a state tort claim of wrongful discharge.
http://media.ca8.uscourts.gov/opndir/15/12/143786P.pdf
Seventh Circuit: John Tate v. SCR Medical Transportation Inc
Pleading.
Court erred in dismissing a pro se complaint alleging discrimination because of gender and disability (that did not specify the disability in question) within the period of time in which a plaintiff can unilaterally amend the claim.
Court should have instructed plaintiff to amend claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-28/C:15-1447:J:Posner:aut:T:fnOp:N:1677902:S:0
Court erred in dismissing a pro se complaint alleging discrimination because of gender and disability (that did not specify the disability in question) within the period of time in which a plaintiff can unilaterally amend the claim.
Court should have instructed plaintiff to amend claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-28/C:15-1447:J:Posner:aut:T:fnOp:N:1677902:S:0
Seventh Circuit: Joshua Howard v. William Pollard
Prison overcrowding - class certification.
Denial of class certification and appointment of counsel upheld. Although presence of counsel would make the class representative a more adequate plaintiff, denial of counsel does not prejudice the consideration of class certification, as counsel is provided to prosecute the claim, not ensure the adequacy of the representative.
Per curiam.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-29/C:15-8025:J:PerCuriam:aut:T:fnOp:N:1678422:S:0
Denial of class certification and appointment of counsel upheld. Although presence of counsel would make the class representative a more adequate plaintiff, denial of counsel does not prejudice the consideration of class certification, as counsel is provided to prosecute the claim, not ensure the adequacy of the representative.
Per curiam.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-29/C:15-8025:J:PerCuriam:aut:T:fnOp:N:1678422:S:0
Fifth Circuit: Machete Productions, L.L.C. v. Heather Page, et al
S1983 - State film incentives program / First Amendment
Although removal from state to federal forum operated as a voluntary waiver of sovereign immunity, monetary damages against a state don't lie under S1983, and as the film franchise has no plans for another project, there is no basis for injunctive relief.
Qualified immunity - by requiring films to depict the state in a positive manner in order to qualify for funding, the state violated no clearly established constitutional law.
No due process violation, as the filmmaker did not have a right to the discretionary grants.
No prior restraint of speech under the Texas Constitution.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50120-CV0.pdf
Although removal from state to federal forum operated as a voluntary waiver of sovereign immunity, monetary damages against a state don't lie under S1983, and as the film franchise has no plans for another project, there is no basis for injunctive relief.
Qualified immunity - by requiring films to depict the state in a positive manner in order to qualify for funding, the state violated no clearly established constitutional law.
No due process violation, as the filmmaker did not have a right to the discretionary grants.
No prior restraint of speech under the Texas Constitution.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50120-CV0.pdf
Second Circuit: In Re: Coudert Bros. LLP
Appellate procedure, choice of law.
Where a court of appeals instructs that a lower court should apply a specific law on remand and does not mention alternative bases for judgment, the lower court is necessarily foreclosed from deciding the case on an alternative basis that makes the choice of law not dispositive.
http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/doc/14-3688_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/hilite/
Where a court of appeals instructs that a lower court should apply a specific law on remand and does not mention alternative bases for judgment, the lower court is necessarily foreclosed from deciding the case on an alternative basis that makes the choice of law not dispositive.
http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/doc/14-3688_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9e364f88-21ef-41ef-9e67-557990941445/1/hilite/
Eleventh Circuit: Miccosukee Tribe of Indians of Florida v. Billy Cypress, et al.
Tribe law - RICO, embezzlement.
No genuine issue of nonjusticibility, as the actions specified in the indictment appear to be outside of tribal law.
Itemization of fraudulent contacts is insufficient for 9(b) pleading specificity -- a theory of the specific fraud must also be outlined.
http://media.ca11.uscourts.gov/opinions/pub/files/201412115.pdf
No genuine issue of nonjusticibility, as the actions specified in the indictment appear to be outside of tribal law.
Itemization of fraudulent contacts is insufficient for 9(b) pleading specificity -- a theory of the specific fraud must also be outlined.
http://media.ca11.uscourts.gov/opinions/pub/files/201412115.pdf
Ninth Circuit: Gabriel Almanza-Arenas v. Loretta E. Lynch
Immigration - predicates. En banc.
A California vehicle theft statute describes an offense that may be committed with the specific intent to borrow the car or take the car permanently, not two offenses with distinct elements. It is therefore not categorically a crime of moral turpitude for the purposes of immigration enforcement.
Concurrence (4) - Correct according to the law, but the constant categorical/modified categorical rebalancing isn't intrinsically just.
Concurrence in J: The statute is divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/09-71415.pdf
A California vehicle theft statute describes an offense that may be committed with the specific intent to borrow the car or take the car permanently, not two offenses with distinct elements. It is therefore not categorically a crime of moral turpitude for the purposes of immigration enforcement.
Concurrence (4) - Correct according to the law, but the constant categorical/modified categorical rebalancing isn't intrinsically just.
Concurrence in J: The statute is divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/09-71415.pdf
Ninth Circuit: USA v. Samuel Navarette-Aguilar
Drugs - Sentencing, Conspiracy.
A jury cannot speculate that events outside scope of proof would have allowed the total amount of drugs to rise to the level contemplated by the statute.
Deft's witness opened the door for prior bad acts.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/14-30056.pdf
A jury cannot speculate that events outside scope of proof would have allowed the total amount of drugs to rise to the level contemplated by the statute.
Deft's witness opened the door for prior bad acts.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/14-30056.pdf
Ninth Circuit: Robert McDaniels v. Richard Kirkland
En Banc -- Habeas, Batson, scope of review
Clearly established constitutional law did not require an appeals court evaluating a collateral Batson challenge to engage in comparative juror analysis.
Court did not conflate the analysis of the prosecutors' justifications with the analysis of the trial court's acceptance of the justifications.
While the court evaluating the state writ was not compelled to engage in comparative juror analysis, comparative juror analysis in the Federal collateral challenge can reveal an unreasonable application of facts in the state proceeding.
Evidence before a state trial court not introduced at state collateral proceedings doesn't implicate Pinholster.
Remanded to panel to determine if unreasonable application of facts.
Concur (3):
No substantive change in the law in the interval requiring comparative juror analysis in state Habeas.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/24/09-17339.pdf
Clearly established constitutional law did not require an appeals court evaluating a collateral Batson challenge to engage in comparative juror analysis.
Court did not conflate the analysis of the prosecutors' justifications with the analysis of the trial court's acceptance of the justifications.
While the court evaluating the state writ was not compelled to engage in comparative juror analysis, comparative juror analysis in the Federal collateral challenge can reveal an unreasonable application of facts in the state proceeding.
Evidence before a state trial court not introduced at state collateral proceedings doesn't implicate Pinholster.
Remanded to panel to determine if unreasonable application of facts.
Concur (3):
No substantive change in the law in the interval requiring comparative juror analysis in state Habeas.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/24/09-17339.pdf
Ninth Circuit: USA v. Xochitl Cisneros-Rodriguez
Immigration, due process.
As an administrative officer can terminate an administrative proceeding in favor of a judicial proceeding, a waiver of legal representation to pursue a plausible claim of relief is invalidated by an affirmative misrepresentation by the administrative officer.
Dissent: District court made adverse credibility finding against the claim of misrepresentation. Petitioner might have otherwise obtained relief in interval.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/23/13-10645.pdf
As an administrative officer can terminate an administrative proceeding in favor of a judicial proceeding, a waiver of legal representation to pursue a plausible claim of relief is invalidated by an affirmative misrepresentation by the administrative officer.
Dissent: District court made adverse credibility finding against the claim of misrepresentation. Petitioner might have otherwise obtained relief in interval.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/23/13-10645.pdf
Sixth Circuit: In re: Windy Watkins
Sentencing -- Johnson's retroactivity on collateral review.
Second/successive Habeas petition challenging sentence imposed under ACCA residual clause permitted, as Supreme Court ruling holding the clause unconstitutionally vague was explicitly made retroactive for cases on collateral review.
http://www.ca6.uscourts.gov/opinions.pdf/15a0295p-06.pdf
Second/successive Habeas petition challenging sentence imposed under ACCA residual clause permitted, as Supreme Court ruling holding the clause unconstitutionally vague was explicitly made retroactive for cases on collateral review.
http://www.ca6.uscourts.gov/opinions.pdf/15a0295p-06.pdf
Fifth Circuit: Helen Allen, et al v. C & H Distributors, L.L.C.,
Judicial estoppel & tort.
A party is judicially estopped from bringing a post-petition injury claim if they do not notify the Trustee of the claim.
A subsequent filing of the suit by a Trustee is not governed by the statute of limitations.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30330-CV0.pdf
A party is judicially estopped from bringing a post-petition injury claim if they do not notify the Trustee of the claim.
A subsequent filing of the suit by a Trustee is not governed by the statute of limitations.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30330-CV0.pdf
Fifth Circuit: USA v. Mark Hebert
Sentencing, 5A, 6A, 8A.
92 year sentence for Bank Fraud under 70K upheld, due to murder established by preponderance in sentencing.
No clear error in the finding.
After plea deal, gov't filed second PSR, cross-referencing the murder.
Cross-reference to state law murder not substantively unreasonable, as the sentence could have been an independent upward variance in the primary offense.
No Fifth Amendment Due Process, Eighth Amendment, or Sixth Amendment violation, as sentence was within statutory limits of the primary offense.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31405-CR0.pdf
92 year sentence for Bank Fraud under 70K upheld, due to murder established by preponderance in sentencing.
No clear error in the finding.
After plea deal, gov't filed second PSR, cross-referencing the murder.
Cross-reference to state law murder not substantively unreasonable, as the sentence could have been an independent upward variance in the primary offense.
No Fifth Amendment Due Process, Eighth Amendment, or Sixth Amendment violation, as sentence was within statutory limits of the primary offense.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31405-CR0.pdf
Fourth Circuit: Samuel Calderon v. GEICO General Insurance Company
FLSA for insurance investigators.
An employee who provides investigative services for a class of employees who are considered exempt on a case by case basis is not him or herself necessarily exempt. Relevant precedent in the public sector applies to the private sector as well.
Executives decision to the contrary was not willful and reckless, as they acted in opposition to legal precedent that was, according to their predictions, subsequently reversed.
Court correctly construed the contract as straight-time for hours worked.
Error under statute not to award prejudgment interest.
http://www.ca4.uscourts.gov/Opinions/Published/142111.P.pdf
An employee who provides investigative services for a class of employees who are considered exempt on a case by case basis is not him or herself necessarily exempt. Relevant precedent in the public sector applies to the private sector as well.
Executives decision to the contrary was not willful and reckless, as they acted in opposition to legal precedent that was, according to their predictions, subsequently reversed.
Court correctly construed the contract as straight-time for hours worked.
Error under statute not to award prejudgment interest.
http://www.ca4.uscourts.gov/Opinions/Published/142111.P.pdf
First Circuit: Limoliner, Inc. v. Dattco, Inc.
Contract interpretation, consumer protection - bus repairs.
Give that the analogous regulation relied upon is in the consumer protection portion of the code and the law in question is in the motor vehicle portion of the code, question on applicability of the law to businesses to business transactions certified to Massachusetts SJC.
Party's spoken stipulation that the work should be done "as soon as possible" is not a binding contractual term of performance.
No clear error in magistrate's holding that that work was timely performed.
Damages affirmed.
http://media.ca1.uscourts.gov/pdf.opinions/14-2188P-01A.pdf
Give that the analogous regulation relied upon is in the consumer protection portion of the code and the law in question is in the motor vehicle portion of the code, question on applicability of the law to businesses to business transactions certified to Massachusetts SJC.
Party's spoken stipulation that the work should be done "as soon as possible" is not a binding contractual term of performance.
No clear error in magistrate's holding that that work was timely performed.
Damages affirmed.
http://media.ca1.uscourts.gov/pdf.opinions/14-2188P-01A.pdf
First Circuit: Castaneda v. Souza
Immigration - AG's detention mandate. Statutory interpretation, En banc, 107 pp.
3-1-3 split. District courts decision requiring bond hearings for aliens affirmed, in line with the first opinion, viz:
(3)
When an antecedent portion of a statute refers to an entity later described in the statute, it is assumed that the full modifier is incorporated in the later reference, i.e., a statute referring to an alien as described above refers to the type of alien described above, and not aliens generally, some of whom fall into the category described above, and some of whom don't.
Chevron analysis, TKO'd on step one - agency adjudication deserves no deference, as the statute isn't ambiguous.
Additionally, as agency only decided whether statute's requirements attach on release or after release, there is no agency guidance on relative duration of release.
Loss-of-authority canon.
(1)
Concurrence in J.
14A bars indefinite detention without access to bail or bond of anybody in the US. Yick Wo.
(3)
Dissent
Statutory interpretation - the adverbial modifier in the previous clause shouldn't attach to the second clause.
Circuit split flagged.
Legislative intent, surplussage.
Where a statutory mandate is not implemented, a second clause referring to the entities in the mandate continues to describe them as as an independent referent, though not acted upon by the terms of the previous mandate.
Constitutional avoidance.
http://media.ca1.uscourts.gov/pdf.opinions/13-1994P2-01A.pdf
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