First Amendment, S 1983
Qualified immunity for deft in police labor dispute, as:
Telling reporters to investigate the officer's civil rights complaints was an exercise of speech rights.
Unclear as to whether filing union grievance is a matter of public concern.
No showing of sufficient nexus on free association retaliation.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/doc/14-3751_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/hilite/
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.
Second Circuit: Zurich Am. Ins. Co. v. Team Tankers A.S.
Arbitration, fees
Arbitration did not disregard law.
Although arbitrator's nondisclosure if illness violated the rules of the arbitration, insufficient for vacatur.
Fee-shifting to prevailing party vacated, as consent to arbitration implies consent to challenge in court of competent jurisdiction and if it doesn't, it's unenforcable.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/doc/14-4036_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/hilite/
Arbitration did not disregard law.
Although arbitrator's nondisclosure if illness violated the rules of the arbitration, insufficient for vacatur.
Fee-shifting to prevailing party vacated, as consent to arbitration implies consent to challenge in court of competent jurisdiction and if it doesn't, it's unenforcable.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/doc/14-4036_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/hilite/
Second Circuit: Credit Suisse Secs. LLC v. Tracy, et al.
FINRA, Arbitration
FINRA arbitration code does not bar voluntary pre-dispute waiver of FINRA arbitral forum.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/doc/15-345_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/hilite/
FINRA arbitration code does not bar voluntary pre-dispute waiver of FINRA arbitral forum.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/doc/15-345_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/hilite/
First Circuit: Sena Silva v. Lynch
Immigration
No denial of Due Process when IJ denied continuance in present action to allow a challenge to an earlier action based on insufficiency of counsel.
http://media.ca1.uscourts.gov/pdf.opinions/15-1526U-01A.pdf
No denial of Due Process when IJ denied continuance in present action to allow a challenge to an earlier action based on insufficiency of counsel.
http://media.ca1.uscourts.gov/pdf.opinions/15-1526U-01A.pdf
First Circuit: US v. Peter, Jr.
Sentencing
Counsel's recitation of cooperation at sentencing establishes that judge considered it absent prosecution motion.
Insufficient proof for minor participant reduction.
Judge does not have to itemize mitigating factors at sentencing.
Substantively reasonable.
(Bit of an odd tone to this one. CB)
http://media.ca1.uscourts.gov/pdf.opinions/14-2126U-01A.pdf
Counsel's recitation of cooperation at sentencing establishes that judge considered it absent prosecution motion.
Insufficient proof for minor participant reduction.
Judge does not have to itemize mitigating factors at sentencing.
Substantively reasonable.
(Bit of an odd tone to this one. CB)
http://media.ca1.uscourts.gov/pdf.opinions/14-2126U-01A.pdf
First Circuit: Barbosa v. Mitchell
FRE
Habeas denied for Confrontation Clause challenge to the admission of expert testimony that incorporated research not subject to challenge.
Court declines to assess procedural default against petitioner for lack of contemporaneous objection that resulted in review standard of miscarriage of justice.
Admission of underlying research results themselves ruled harmless error, as the expert testimony referencing it was introduced.
http://media.ca1.uscourts.gov/pdf.opinions/14-1926P-01A.pdf
Habeas denied for Confrontation Clause challenge to the admission of expert testimony that incorporated research not subject to challenge.
Court declines to assess procedural default against petitioner for lack of contemporaneous objection that resulted in review standard of miscarriage of justice.
Admission of underlying research results themselves ruled harmless error, as the expert testimony referencing it was introduced.
http://media.ca1.uscourts.gov/pdf.opinions/14-1926P-01A.pdf
Eleventh Circuit: Johnny Overstreet, Jr. v. Warden
Ineffective assistance
Habeas for ineffective assistance on direct appeal that characterized an issue certain to require reversal as a substantial evidence challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201314995.pdf
Habeas for ineffective assistance on direct appeal that characterized an issue certain to require reversal as a substantial evidence challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201314995.pdf
Ninth Circuit: Randolph Wolfson v. Colleen Concannon
Elections, First Amendment, En banc
Strict scrutiny for judicial speech restrictions.
Compelling state interest in personal solicitations regulations for judges.
Recusal doesn't solve perception problems.
Everything upheld under strict scrutiny.
Concurrence - justifiable distinctions between sitting and nonsitting judges.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/11-17634.pdf
Strict scrutiny for judicial speech restrictions.
Compelling state interest in personal solicitations regulations for judges.
Recusal doesn't solve perception problems.
Everything upheld under strict scrutiny.
Concurrence - justifiable distinctions between sitting and nonsitting judges.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/11-17634.pdf
Ninth Circuit: Presidio Historical Assn v. Presidio Trust
Administrative, Deference
Agency's interpretation of ambiguous statute requiring equivalent rebuilding as "one up, one down" anywhere on the site is unreasonable.
Current plans for building, however, are congruent with statute.
Statute requiring agency consideration does not impose a substantive change in scrutiny on judicial review -- it merely requires that the agency demonstrate that it considered alternatives.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/13-16554.pdf
Agency's interpretation of ambiguous statute requiring equivalent rebuilding as "one up, one down" anywhere on the site is unreasonable.
Current plans for building, however, are congruent with statute.
Statute requiring agency consideration does not impose a substantive change in scrutiny on judicial review -- it merely requires that the agency demonstrate that it considered alternatives.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/13-16554.pdf
Ninth Circuit: USA v. Raul Cruz-Mendez
Sentencing
Pilot/captain enhancement upheld against fellow at tiller of small open craft.
Sentence generally not unreasonable.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/14-50154.pdf
Pilot/captain enhancement upheld against fellow at tiller of small open craft.
Sentence generally not unreasonable.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/14-50154.pdf
Ninth Circuit: Dale Bozzio v. EMI Group, LTD.
FRCP, Contracts, Corporations
Under state law, third party beneficiary might be able to state a claim for breach where the promisee is an interposed suspended corporation and the beneficiary has relinquished individual right of action against the counterparty.
Error to dismiss with prejudice, as legal uncertainty might have made amendment of claim worthwhile.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/26/13-15685.pdf
Under state law, third party beneficiary might be able to state a claim for breach where the promisee is an interposed suspended corporation and the beneficiary has relinquished individual right of action against the counterparty.
Error to dismiss with prejudice, as legal uncertainty might have made amendment of claim worthwhile.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/26/13-15685.pdf
Eighth Circuit: United States v. Brent Englehart
Fourth Amendment
When a police officer has a conversation that is at least partially consensual with a person asked to sit in the patrol car while a traffic citation is being written, if the person admits possession of contraband in he first three minutes after the ticket is written, the intrusion is de minimis.
http://media.ca8.uscourts.gov/opndir/16/01/152343P.pdf
When a police officer has a conversation that is at least partially consensual with a person asked to sit in the patrol car while a traffic citation is being written, if the person admits possession of contraband in he first three minutes after the ticket is written, the intrusion is de minimis.
http://media.ca8.uscourts.gov/opndir/16/01/152343P.pdf
Seventh Circuit: Window World of Chicagoland v. Window World, Inc.
FRCP
Where issues raised in a subsequent suit are compulsory counterclaims in a prior suit resulting in a default judgment, and the earlier decision is temporarily vacated for excusable neglect and then reinstated, claim preclusion bars the claims in the subsequent suit when the subsequent suit is administratively joined to the prior action and law of the case bars the claim if the caption numbers are joined.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-27/C:15-2224:J:Easterbrook:aut:T:fnOp:N:1693131:S:0
Where issues raised in a subsequent suit are compulsory counterclaims in a prior suit resulting in a default judgment, and the earlier decision is temporarily vacated for excusable neglect and then reinstated, claim preclusion bars the claims in the subsequent suit when the subsequent suit is administratively joined to the prior action and law of the case bars the claim if the caption numbers are joined.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-27/C:15-2224:J:Easterbrook:aut:T:fnOp:N:1693131:S:0
Seventh Circuit: Ratna Bagwe v. Sedgwick Claims Management Service
Employment, discrimination
Where rebuttal of nondiscriminatory motive includes both direct and indirect methods of proof, appellate review analyses both separately.
No direct evidence, insufficient comparators.
Small pay decision is timely, can be considered separately.
Employer response on compensation that only discussed raises suffices to challenge broad compensation argument.
Insufficient proof of retaliation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-26/C:14-3201:J:Ripple:aut:T:fnOp:N:1692303:S:0
Where rebuttal of nondiscriminatory motive includes both direct and indirect methods of proof, appellate review analyses both separately.
No direct evidence, insufficient comparators.
Small pay decision is timely, can be considered separately.
Employer response on compensation that only discussed raises suffices to challenge broad compensation argument.
Insufficient proof of retaliation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-26/C:14-3201:J:Ripple:aut:T:fnOp:N:1692303:S:0
Seventh Circuit: Estate of Harold Stuller v. USA
FRE, Tax
Barring of horse breeder's testimony under Daubert upheld, as offered to prove that the farm was intended to be run successfully, and the breeder had no knowledge of farm financing.
Poor record-keeping, extensive losses, and tax benefits accrued in horse breeding operation run by Steak & Shake franchisees sufficient for finding that the operation was not run for a profit.
Insufficient nexus of cause and timing to justify finding of untimely tax return.
Denial of corporate deduction for S corporation does not justify amendment of personal return to remove income. Or something like that.
Equitable adjustment claim forfeited.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-26/C:15-1545:J:Shah:aut:T:fnOp:N:1693035:S:0
Barring of horse breeder's testimony under Daubert upheld, as offered to prove that the farm was intended to be run successfully, and the breeder had no knowledge of farm financing.
Poor record-keeping, extensive losses, and tax benefits accrued in horse breeding operation run by Steak & Shake franchisees sufficient for finding that the operation was not run for a profit.
Insufficient nexus of cause and timing to justify finding of untimely tax return.
Denial of corporate deduction for S corporation does not justify amendment of personal return to remove income. Or something like that.
Equitable adjustment claim forfeited.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-26/C:15-1545:J:Shah:aut:T:fnOp:N:1693035:S:0
Sixth Circuit: Village Green I, GP v. Federal Nat'l Mortgage Assoc.
Bankruptcy
Bankruptcy plan is not proposed in good faith when it impairs a minor class of creditors consisting of its former legal representation by delaying payment two weeks when there is evidence of present means that make the minor debt insignificant.
http://www.ca6.uscourts.gov/opinions.pdf/16a0018p-06.pdf
Bankruptcy plan is not proposed in good faith when it impairs a minor class of creditors consisting of its former legal representation by delaying payment two weeks when there is evidence of present means that make the minor debt insignificant.
http://www.ca6.uscourts.gov/opinions.pdf/16a0018p-06.pdf
Fifth Circuit: Ambrea Fairchild v. All Amer Check Cashing, Inc.
Employment, FRE
FLSA requires actual knowledge by the employer that the emplyee is working overtime - possible discovery in computer usage records is insufficient to impute.
No abuse of discretion in barring party-opponent hearsay exception for non-workplace statement by supervisor not directly involved in the case's statement of improper reason for dismissal.
Sufficient showing of non-pretextual nondiscriminatory reason for action.
http://www.ca5.uscourts.gov/opinions/pub/15/15-60190-CV0.pdf
FLSA requires actual knowledge by the employer that the emplyee is working overtime - possible discovery in computer usage records is insufficient to impute.
No abuse of discretion in barring party-opponent hearsay exception for non-workplace statement by supervisor not directly involved in the case's statement of improper reason for dismissal.
Sufficient showing of non-pretextual nondiscriminatory reason for action.
http://www.ca5.uscourts.gov/opinions/pub/15/15-60190-CV0.pdf
Fourth Circuit: James Angell v. Stubbs & Perdue, P.A.
Bankruptcy, Retroactive application
As Bankruptcy petition changed from reorganization to liquidation subsequent to the change in the statute regulating subordination of secured debts in liquidation proceedings, administrative expenses incurred in reorganization phase cannot gain priority through the equitable subordination of secured debts.
http://www.ca4.uscourts.gov/Opinions/Published/151316.P.pdf
As Bankruptcy petition changed from reorganization to liquidation subsequent to the change in the statute regulating subordination of secured debts in liquidation proceedings, administrative expenses incurred in reorganization phase cannot gain priority through the equitable subordination of secured debts.
http://www.ca4.uscourts.gov/Opinions/Published/151316.P.pdf
Second Circuit: Friends of Animals v. Clay et al.
Administrative, environment
Statute's requirement of a specific permit for the taking of a member of a protected species is satisfied by specificity in the situation, not necessarily specificity in the species.
Employees of a multijurisdictional authority would be protected by the justification of necessity when taking animals outside the statute in order to prevent death or serious bodily harm.
Facepalm pun at peroration.
http://www.ca2.uscourts.gov/decisions/isysquery/8ff2d324-fcfa-460d-953a-74b3a3021a4f/2/doc/14-4071_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8ff2d324-fcfa-460d-953a-74b3a3021a4f/2/hilite/
Statute's requirement of a specific permit for the taking of a member of a protected species is satisfied by specificity in the situation, not necessarily specificity in the species.
Employees of a multijurisdictional authority would be protected by the justification of necessity when taking animals outside the statute in order to prevent death or serious bodily harm.
Facepalm pun at peroration.
http://www.ca2.uscourts.gov/decisions/isysquery/8ff2d324-fcfa-460d-953a-74b3a3021a4f/2/doc/14-4071_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8ff2d324-fcfa-460d-953a-74b3a3021a4f/2/hilite/
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