4A - Search Warrants.
An affiant's testimony that obscene photos are often accompanied by suggestive photos is insufficient basis for a search warrant for obscene photos based on the presence of suggestive photos.
Good faith exception applies, as there was no need for the issuing magistrate to see the photos, the warrant wasn't impermissibly overbroad, and no affirmative misstatements.
https://www.ca10.uscourts.gov/opinions/14/14-5083.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.
Ninth Circuit: USA v. Lloyd Taylor
Statutory construction - Crim.
Federal crime of making false statements to a bank need not involve a risk of loss to the bank.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/14-50528.pdf
Federal crime of making false statements to a bank need not involve a risk of loss to the bank.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/14-50528.pdf
Ninth Circuit: Alaska Wilderness League v. Sally Jewell
Environment - Denial of En Banc
Dissent from denial:
There is no Chevron ambiguity in a statute where a fixed number of criteria are established for compliance, and findings of compliance are later accorded discretion.
ESA/CWA.
Court impermissibly allows agency to define its own scope of discretion when it allows it to define a finding of compliance as mandatory when the text does not explicitly so state.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-35866.pdf
Dissent from denial:
There is no Chevron ambiguity in a statute where a fixed number of criteria are established for compliance, and findings of compliance are later accorded discretion.
ESA/CWA.
Court impermissibly allows agency to define its own scope of discretion when it allows it to define a finding of compliance as mandatory when the text does not explicitly so state.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-35866.pdf
Ninth Circuit: Mark Oyama v. University of Hawaii
Where a university's imprimatur is a prerequisite for a specific professional certification, the university is allowed deference in matters of regulation of speech by the candidate.
A candidate in a university professional certification program is not necessarily protected under the public employee speech doctrine.
A student teacher may be removed for conduct that, in the reasonable professional judgment of the university, violates defined and established professional standards which are narrowly tailored to serve the foundational mission of the program.
Programs can look to speech as an indication of likely future conduct.
Academic dismissals do not trigger due process interests so long as they are careful and deliberate.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-16524.pdf
A candidate in a university professional certification program is not necessarily protected under the public employee speech doctrine.
A student teacher may be removed for conduct that, in the reasonable professional judgment of the university, violates defined and established professional standards which are narrowly tailored to serve the foundational mission of the program.
Programs can look to speech as an indication of likely future conduct.
Academic dismissals do not trigger due process interests so long as they are careful and deliberate.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-16524.pdf
Ninth Circuit: James McKinney v. Charles Ryan
Habeas - En banc
State courts (whether of the first instance or in final de novo review) cannot impose a causal nexus test for nonstatutory mitigating factors when deliberating a capital sentence.
On Federal collateral review, there need not be a clear indication that a state court disregarded a constitutional principle -- AEDPA language controls.
Error was not structural, but also not harmless.
Dissent:
Arizona Supreme Court review was "last instance," but not "de novo."
Presumption that state court followed law.
Court of first instance considered the mitigation.
Error did not prejudice the decision.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/09-99018.pdf
State courts (whether of the first instance or in final de novo review) cannot impose a causal nexus test for nonstatutory mitigating factors when deliberating a capital sentence.
On Federal collateral review, there need not be a clear indication that a state court disregarded a constitutional principle -- AEDPA language controls.
Error was not structural, but also not harmless.
Dissent:
Arizona Supreme Court review was "last instance," but not "de novo."
Presumption that state court followed law.
Court of first instance considered the mitigation.
Error did not prejudice the decision.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/09-99018.pdf
Ninth Circuit: Americans for Prosperity Found v. Kamala Harris
First Amendment - political contributions
Collection of donor information by state Attorney General does not risk chilling of speech, or harassment by the state or the public.
Temporary injunction barring the public disclosure of the information sustained, given the possibility that the information might be subject to mandatory statutory disclosure.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/15-55446.pdf
Collection of donor information by state Attorney General does not risk chilling of speech, or harassment by the state or the public.
Temporary injunction barring the public disclosure of the information sustained, given the possibility that the information might be subject to mandatory statutory disclosure.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/15-55446.pdf
Fifth Circuit: Yaroslav Lozovyy v. Richard Kurtz, et al
Civil procedure.
Court had discretion to accept motion to dismiss after the statutory deadline and to, without specific findings, schedule a hearing later than statute permits.
In assessing claims according to Louisiana's anti-defamation statute's summary judgment requirements, courts cannot weigh evidence, assess credibility, or determine disputed contentions of material fact.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30086-CV0.pdf
Court had discretion to accept motion to dismiss after the statutory deadline and to, without specific findings, schedule a hearing later than statute permits.
In assessing claims according to Louisiana's anti-defamation statute's summary judgment requirements, courts cannot weigh evidence, assess credibility, or determine disputed contentions of material fact.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30086-CV0.pdf
Fifth Circuit: Southwest Securities, FSB v. Milo Segner, Jr.
Bankruptcy.
Costs incurred by the Trustee in maintaining the property prior to the abandonment of the interest by the secured creditor can be surcharged to the secured creditor absent evidence of direct benefit.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41463-CV0.pdf
Costs incurred by the Trustee in maintaining the property prior to the abandonment of the interest by the secured creditor can be surcharged to the secured creditor absent evidence of direct benefit.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41463-CV0.pdf
Fourth Circuit: Joshua Rich v. US
Prisons, FTCA.
As the decision to separate certain prisoners from each other is discretionary, yet implicates considerations of public policy, suit against officials is barred under FTCA.
Claims of inadequate or omitted searches of assailants should be remanded for discovery, as they implicate claims outside of the discretionary exception.
http://www.ca4.uscourts.gov/Opinions/Published/147204.P.pdf
As the decision to separate certain prisoners from each other is discretionary, yet implicates considerations of public policy, suit against officials is barred under FTCA.
Claims of inadequate or omitted searches of assailants should be remanded for discovery, as they implicate claims outside of the discretionary exception.
http://www.ca4.uscourts.gov/Opinions/Published/147204.P.pdf
Third Circuit: Laurence Kaplan v. Saint Peter's Healthcare System
ERISA, Religion -- statutory construction.
While a church agency can maintain an exempt plan, only a church can establish one.
Plain meaning.
Surplussage, Expressio unius..., Remedial statute, Statutory context.
Other statements by same sources in legislative record undermine indications to the contrary.
IRS ruling was not a rulemaking, so only accorded persuasive deference. (Christiansen, not Skidmore)
In subsequent lawmaking that seemed to legislate against the background of a contrary interpretation, Congress never evinced a detailed knowledge of the statutory scheme.
First Amendment not implicated, as churches themselves are free to set up plans.
http://www2.ca3.uscourts.gov/opinarch/151172p.pdf
While a church agency can maintain an exempt plan, only a church can establish one.
Plain meaning.
Surplussage, Expressio unius..., Remedial statute, Statutory context.
Other statements by same sources in legislative record undermine indications to the contrary.
IRS ruling was not a rulemaking, so only accorded persuasive deference. (Christiansen, not Skidmore)
In subsequent lawmaking that seemed to legislate against the background of a contrary interpretation, Congress never evinced a detailed knowledge of the statutory scheme.
First Amendment not implicated, as churches themselves are free to set up plans.
http://www2.ca3.uscourts.gov/opinarch/151172p.pdf
Second Circuit: Mantena v. Johnson
Immigration, jurisdiction-stripping, standing.
The INA's jurisdiction-stripping provisions bar challenges to the substance of the decision, not procedural questions such as adequate notice.
When statute removes jurisdiction from a court, the correct procedure is to find subject matter jurisdiction and then determine that there is no judicially cognizable right.
When the notification of a third party is a prerequisite to the assertion of a right, a party has sufficient injury-in-fact for third-party standing upon the deprivation of notice.
Prudential standing is satisfied, as the party is asserting her own right.
Administrative definitions of standing do not touch Article III standing.
Subsequent statutory scheme altered the interest of parties, so prior administrative structure not a valid basis for deprivation of fair notice.
In the new "portability" scheme, providing notice to neither the petitioner nor the second employer violates the notice requirements.
http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/doc/14-2476_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/hilite/
The INA's jurisdiction-stripping provisions bar challenges to the substance of the decision, not procedural questions such as adequate notice.
When statute removes jurisdiction from a court, the correct procedure is to find subject matter jurisdiction and then determine that there is no judicially cognizable right.
When the notification of a third party is a prerequisite to the assertion of a right, a party has sufficient injury-in-fact for third-party standing upon the deprivation of notice.
Prudential standing is satisfied, as the party is asserting her own right.
Administrative definitions of standing do not touch Article III standing.
Subsequent statutory scheme altered the interest of parties, so prior administrative structure not a valid basis for deprivation of fair notice.
In the new "portability" scheme, providing notice to neither the petitioner nor the second employer violates the notice requirements.
http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/doc/14-2476_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/debf609a-5626-451b-b673-60ca2db5129b/1/hilite/
First Circuit: Buntin v. City of Boston
Discrimination.
There is no administrative exhaustion requirement for S1981 actions.
The statute of limitations began to run with the adverse personell actions, not the written warning, as the adverse etiology had yet to crystallize.
A name-clearing hearing is not constitutionally required where the speech is not broadcast to a larger public, there is no nexus with the end of employment, and the employee did not request one.
http://media.ca1.uscourts.gov/pdf.opinions/15-1667P-01A.pdf
There is no administrative exhaustion requirement for S1981 actions.
The statute of limitations began to run with the adverse personell actions, not the written warning, as the adverse etiology had yet to crystallize.
A name-clearing hearing is not constitutionally required where the speech is not broadcast to a larger public, there is no nexus with the end of employment, and the employee did not request one.
http://media.ca1.uscourts.gov/pdf.opinions/15-1667P-01A.pdf
First Circuit: Thompson v. Lynch
Immigration
A former common-law marriage does not establish a basis for naturalization, as the law requires custody at the time of legal separation, and the end of the marriage was not legally recognized.
http://media.ca1.uscourts.gov/pdf.opinions/14-1858P-01A.pdf
A former common-law marriage does not establish a basis for naturalization, as the law requires custody at the time of legal separation, and the end of the marriage was not legally recognized.
http://media.ca1.uscourts.gov/pdf.opinions/14-1858P-01A.pdf
Federal Circuit: Rogers v. US
Takings, Property conveyance
Where the language of the deed is clear, under Florida law, no statute, policy, or fact can operate to convert an interest in fee simple for the purpose of running a railway to an easement.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-5098.Opinion.12-22-2015.1.PDF
Where the language of the deed is clear, under Florida law, no statute, policy, or fact can operate to convert an interest in fee simple for the purpose of running a railway to an easement.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-5098.Opinion.12-22-2015.1.PDF
Federal Circuit: Commil USA, LLC v. Cisco Systems, Inc.
Patent, Appellate Procedure
Retained on remand after Supreme Court review of the question whether belief of non-infringement operates as a bar to inducement liability, the Court finds no infringement - either direct or inducement - as the processes are not identical.
[Standard patent caveat: None of this is legal advice, but Patent is one of the areas in which it's not merely likely that we're wrong about this stuff, but it's almost certain that we're ludicrously off-base. -CB]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/12-1042.Opinion.12-22-2015.1.PDF
Retained on remand after Supreme Court review of the question whether belief of non-infringement operates as a bar to inducement liability, the Court finds no infringement - either direct or inducement - as the processes are not identical.
[Standard patent caveat: None of this is legal advice, but Patent is one of the areas in which it's not merely likely that we're wrong about this stuff, but it's almost certain that we're ludicrously off-base. -CB]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/12-1042.Opinion.12-22-2015.1.PDF
DC Circuit: Ayanna Blue v. District of Columbia
S1983, Title IX
A municipality's retention of an employee after an offense does not establish that the municipality is liable under S1983 for similar offenses.
Allegation of insufficient screening is not enough to state a claim for S1983.
As there was no actual notice of improper relationship during the pendency of the relationship, no Title IX violation.
School investigation is not an adequate substitute for notice of claim requirement that requires, at minimum, a written police report.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A69B5A2CB744D2E485257F2A005480B2/$file/14-7189-1590902.pdf
A municipality's retention of an employee after an offense does not establish that the municipality is liable under S1983 for similar offenses.
Allegation of insufficient screening is not enough to state a claim for S1983.
As there was no actual notice of improper relationship during the pendency of the relationship, no Title IX violation.
School investigation is not an adequate substitute for notice of claim requirement that requires, at minimum, a written police report.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A69B5A2CB744D2E485257F2A005480B2/$file/14-7189-1590902.pdf
DC Circuit: Penelope Minter v. DC
ADA
No merit to claim based on denial of accommodation, as the agency initially engaged in an interactive process and the bona fides of the claim weren't established at the time of eventual denial.
Ending of employment not a valid basis for claim of retaliation, as plaintiff has burden to prove actual connection, and not just temporal proximity.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A307330F9F02514885257F2A0054809C/$file/14-7118-1590897.pdf
No merit to claim based on denial of accommodation, as the agency initially engaged in an interactive process and the bona fides of the claim weren't established at the time of eventual denial.
Ending of employment not a valid basis for claim of retaliation, as plaintiff has burden to prove actual connection, and not just temporal proximity.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A307330F9F02514885257F2A0054809C/$file/14-7118-1590897.pdf
DC Circuit: Washington Regional Medicorp v. Sylvia Burwell
Chevron, Auer deference, rulemaking.
Where the stated intent of Congress is to implement a change, an inability to transition certain elements within the desired timeframe permits agencies to devise rules for the intersticial elements; these rules are not per se impermissible because they incorporate lapsed statutory elements of past systems.
Rules that derive from the previous statutory mandate, however, may be modified at the discretion of the agency.
A rule establishing that a value be derived from a certain other value does not require the two to be equal (or vary equally).
A rulemaking is sometimes not retroactive when the organic statute of the superseded rule has lapsed.
https://www.cadc.uscourts.gov/internet/opinions.nsf/28EC0B9175C966AF85257F2A00548088/$file/14-5330-1590892.pdf
Where the stated intent of Congress is to implement a change, an inability to transition certain elements within the desired timeframe permits agencies to devise rules for the intersticial elements; these rules are not per se impermissible because they incorporate lapsed statutory elements of past systems.
Rules that derive from the previous statutory mandate, however, may be modified at the discretion of the agency.
A rule establishing that a value be derived from a certain other value does not require the two to be equal (or vary equally).
A rulemaking is sometimes not retroactive when the organic statute of the superseded rule has lapsed.
https://www.cadc.uscourts.gov/internet/opinions.nsf/28EC0B9175C966AF85257F2A00548088/$file/14-5330-1590892.pdf
DC Circuit: Walter Jackson, Jr. v. Raymond Mabus, Jr.
Denial of amendment to military record was not arbitrary & capricious; although the written decision was perfunctory, there was sufficient basis in the record for the decision.
Denial of reconsideration reasonable.
No Due Process violation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/EBB3DC0B4C7630ED85257F2A00548069/$file/14-5224-1590906.pdf
Denial of reconsideration reasonable.
No Due Process violation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/EBB3DC0B4C7630ED85257F2A00548069/$file/14-5224-1590906.pdf
Tenth Circuit: Henderson v. Glanz
S1983 - prisons.
Appellate court cannot re-evaluate sufficiency of evidence on interlocutory appeal of denial of qualified immunity - where the court's finding is not contradicted in the record, it is presumed to be adequate.
Undisputed facts in the record that blatantly contradict the factual findings of the court on qualified immunity can be reviewed on interlocutory appeal.
As prison employee had no knowledge of the unlocked door before leaving to attend to another emergency, no denial of clearly established right.
https://www.ca10.uscourts.gov/opinions/14/14-5077.pdf
Appellate court cannot re-evaluate sufficiency of evidence on interlocutory appeal of denial of qualified immunity - where the court's finding is not contradicted in the record, it is presumed to be adequate.
Undisputed facts in the record that blatantly contradict the factual findings of the court on qualified immunity can be reviewed on interlocutory appeal.
As prison employee had no knowledge of the unlocked door before leaving to attend to another emergency, no denial of clearly established right.
https://www.ca10.uscourts.gov/opinions/14/14-5077.pdf
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