International law
(Srinivasan)
WWII treaty not a categorical bar to claims against Hungarian government, railroad under FSIA, as the treaty does not claim to be an exlusive remedy -- the Allied nations could not waive the rights of non-nationals.
Takings of property incident to the deportations are themselves genocide, and state a claim within the expropriation exception to the FSIA.
Plausible inference of commercial activity, as the funds were later commingled, but insufficient proof in pleadings of US nexus for Hungarian government activities.
Genocidal takings have no internal exhaustion requirements, as insufficient compensation is not the underlying harm.
Comity an open question.
Justiciable Article III claims. (Citing Zivitofsky)
Concurrence: Hungary's implementation of treaty insufficient to bar FSIA claim.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0CE6088155B448E285257F490054E55A/$file/14-7082-1596075.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
DC Circuit: In re: Idaho Conservation League, et al.
Administrative, environment
Plaintiff has standing, as he lives near a mine, and regulations would incentivize reduced emissions and mean quicker cleanups.
Other plaintiffs have standing due to living near rivers.
Putative intervenors do no have Article III standing, as the order merely sets a date for rulemaking, and there is no showing that notice and comment would be insufficient. No statutory standing, as there's no impairment of interests.
Putative intervenors' arguments construed as amici, rejected.
https://www.cadc.uscourts.gov/internet/opinions.nsf/1F012EA1238D7A3C85257F490054E52E/$file/14-1149-1596081.pdf
Order here:
https://www.cadc.uscourts.gov/internet/opinions.nsf/735DB53755E54B5085257F490054E579/$file/14-1149-1596091.pdf
Plaintiff has standing, as he lives near a mine, and regulations would incentivize reduced emissions and mean quicker cleanups.
Other plaintiffs have standing due to living near rivers.
Putative intervenors do no have Article III standing, as the order merely sets a date for rulemaking, and there is no showing that notice and comment would be insufficient. No statutory standing, as there's no impairment of interests.
Putative intervenors' arguments construed as amici, rejected.
https://www.cadc.uscourts.gov/internet/opinions.nsf/1F012EA1238D7A3C85257F490054E52E/$file/14-1149-1596081.pdf
Order here:
https://www.cadc.uscourts.gov/internet/opinions.nsf/735DB53755E54B5085257F490054E579/$file/14-1149-1596091.pdf
Ninth Circuit: MICHAEL NOZZI V. HACLA
Amended opinion, denial of en banc.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/13-56223.pdf
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/13-56223.pdf
Ninth Circuit: YUN LIAO V. MAURICE JUNIOUS
Habeas, Ineffective Assistance
Habeas for ineffective assistance based on defense counsel's acceptance of late-night, telephoned denial of permission for medical study, information that later proved to be incorrect. State habeas finding of lack of prejudice objectively unreasonable given centrality of issue.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/14-55897.pdf
Habeas for ineffective assistance based on defense counsel's acceptance of late-night, telephoned denial of permission for medical study, information that later proved to be incorrect. State habeas finding of lack of prejudice objectively unreasonable given centrality of issue.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/14-55897.pdf
Eighth Circuit: James Saylor v. Randy Kohl, M.D
S1983, Prisons
Qualified immunity for physicians treating inmate with PTSD, given lack of deliberate indifference.
No 1A, 14A retaliation claims based on ending of medication and transfer, as there were legitimate nondiscriminatory reasons for both.
Dissent: Genuine dispute.
http://media.ca8.uscourts.gov/opndir/16/01/143889P.pdf
Qualified immunity for physicians treating inmate with PTSD, given lack of deliberate indifference.
No 1A, 14A retaliation claims based on ending of medication and transfer, as there were legitimate nondiscriminatory reasons for both.
Dissent: Genuine dispute.
http://media.ca8.uscourts.gov/opndir/16/01/143889P.pdf
Eighth Circuit: Sriram Rajasekaran v. Mark Hazuda
Administrative, Immigration
No subject matter jurisdiction over challenge to the level of detail in the agency's notice, as it is fundamentally a statutory procedural rule designed to instruct the agency.
Petitioner not eligible for portability.
http://media.ca8.uscourts.gov/opndir/16/01/143623P.pdf
No subject matter jurisdiction over challenge to the level of detail in the agency's notice, as it is fundamentally a statutory procedural rule designed to instruct the agency.
Petitioner not eligible for portability.
http://media.ca8.uscourts.gov/opndir/16/01/143623P.pdf
Eighth Circuit: Theodore Ingram v. Terminal Railroad Association
ERISA
Where additional evidence is admitted during the proceedings, a court can retain the abuse of discretion standard by making its decision from the administrative record.
Administrator's characterization of relocation expenses was reasonable.
District court did not abuse discretion in finding that Administrator's offset of prior plan's benefits for full vesting -as opposed to the actual early retirement payments - was reasonable.
http://media.ca8.uscourts.gov/opndir/16/01/143589P.pdf
Where additional evidence is admitted during the proceedings, a court can retain the abuse of discretion standard by making its decision from the administrative record.
Administrator's characterization of relocation expenses was reasonable.
District court did not abuse discretion in finding that Administrator's offset of prior plan's benefits for full vesting -as opposed to the actual early retirement payments - was reasonable.
http://media.ca8.uscourts.gov/opndir/16/01/143589P.pdf
Eighth Circuit: Jose Refugio Gomez-Gutierrez v. Loretta E. Lynch
Immigration
State solicitation of prostitution statute categorically a crime of moral turpitude.
Sufficient consideration by board.
http://media.ca8.uscourts.gov/opndir/16/01/143374P.pdf
State solicitation of prostitution statute categorically a crime of moral turpitude.
Sufficient consideration by board.
http://media.ca8.uscourts.gov/opndir/16/01/143374P.pdf
Eighth Circuit: United States v. Brandon Lovell
Sentencing
Above-guidelines sentence not substantively unreasonable when additional counts were dismissed as part of the deal.
http://media.ca8.uscourts.gov/opndir/16/01/143277P.pdf
Above-guidelines sentence not substantively unreasonable when additional counts were dismissed as part of the deal.
http://media.ca8.uscourts.gov/opndir/16/01/143277P.pdf
Sixth Circuit: USA v. Shawn Bivens
Sentencing
No error in court's not grouping multiple crimes based on an ongoing relationship.
http://www.ca6.uscourts.gov/opinions.pdf/16a0021p-06.pdf
No error in court's not grouping multiple crimes based on an ongoing relationship.
http://www.ca6.uscourts.gov/opinions.pdf/16a0021p-06.pdf
Sixth Circuit: Ronald Miller v. Comm'r of Social Security
SSA
Insufficient evidence for ALJ finding, given medical facts in evidence.
http://www.ca6.uscourts.gov/opinions.pdf/16a0020p-06.pdf
Insufficient evidence for ALJ finding, given medical facts in evidence.
http://www.ca6.uscourts.gov/opinions.pdf/16a0020p-06.pdf
Fourth Circuit: Frederick Aikens v. William Ingram, Jr
S1983, Military
S1983 Fourth Amendment claim for monitoring national guardsman's email barred by military abstention, as the harm was incident to military service.
http://www.ca4.uscourts.gov/Opinions/Published/142419.P.pdf
S1983 Fourth Amendment claim for monitoring national guardsman's email barred by military abstention, as the harm was incident to military service.
http://www.ca4.uscourts.gov/Opinions/Published/142419.P.pdf
Fourth Circuit: United States ex rel. Steven May v. Purdue Pharma
FCA
FCA claim prevented by prior claim bar where counsel for qui tam plaintiff had knowledge of prior claims.
http://www.ca4.uscourts.gov/Opinions/Published/142299.P.pdf
FCA claim prevented by prior claim bar where counsel for qui tam plaintiff had knowledge of prior claims.
http://www.ca4.uscourts.gov/Opinions/Published/142299.P.pdf
Fourth Circuit: Central Radio Company Inc. v. City of Norfolk
First Amendment
Municipal sign ordinance was a content-based restriction on speech as it targeted commercial speech.
Aesthetics and traffic safety considerations don't satisfy strict scrutiny.
Insufficient bad intent for selective enforcement claim.
(Appendix: Sign was a protest against pending eminent domain action.)
http://www.ca4.uscourts.gov/Opinions/Published/131996A.P.pdf
Municipal sign ordinance was a content-based restriction on speech as it targeted commercial speech.
Aesthetics and traffic safety considerations don't satisfy strict scrutiny.
Insufficient bad intent for selective enforcement claim.
(Appendix: Sign was a protest against pending eminent domain action.)
http://www.ca4.uscourts.gov/Opinions/Published/131996A.P.pdf
Second Circuit: United States v. Allen
Fourth Amendment
Absent exigent circumstance, a warrantless arrest made across the threshold - where the police are outside and arrestee inside after being summoned to the door by the police - violates the Fourth Amendment.
Compelled by earlier circuit precedent.
http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/1/doc/13-3333_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/1/hilite/
Absent exigent circumstance, a warrantless arrest made across the threshold - where the police are outside and arrestee inside after being summoned to the door by the police - violates the Fourth Amendment.
Compelled by earlier circuit precedent.
http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/1/doc/13-3333_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/1/hilite/
Second Circuit: United States v. Liddon Young
Sentencing
No error in denial of downward departure.
Sentencing court erred in double counting trafficking and subsequent-use-in-felony enhancements, as there was insufficient connection between the trafficking and the eventual offense. Expressio unius.
Error in Obstruction enhancement, as specific intent is necessary for unsworn out of court statements.
http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/2/doc/14-2383_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/2/hilite/
No error in denial of downward departure.
Sentencing court erred in double counting trafficking and subsequent-use-in-felony enhancements, as there was insufficient connection between the trafficking and the eventual offense. Expressio unius.
Error in Obstruction enhancement, as specific intent is necessary for unsworn out of court statements.
http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/2/doc/14-2383_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d4b80e2f-29b7-4b35-941f-313aacb7b3f6/2/hilite/
Eleventh Circuit: Brandon Jones v. GDCP Warden
AEDPA, Habeas
Petition for recall of madate resulting from earlier Habeas is a second/successive petition.
No merit in stay pending upcoming en banc holding on whether summary/brief affirmance by highest state court is the final state decision for purposes of federal habeas review, as it would not alter the merits of the underlying Strickland claim.
Insufficient miscarriage of justice to justify recall of mandate sua sponte.
http://media.ca11.uscourts.gov/opinions/pub/files/201114774.ord.pdf
[CB Editorial: The death penalty is morally unjustifiable.]
Petition for recall of madate resulting from earlier Habeas is a second/successive petition.
No merit in stay pending upcoming en banc holding on whether summary/brief affirmance by highest state court is the final state decision for purposes of federal habeas review, as it would not alter the merits of the underlying Strickland claim.
Insufficient miscarriage of justice to justify recall of mandate sua sponte.
http://media.ca11.uscourts.gov/opinions/pub/files/201114774.ord.pdf
[CB Editorial: The death penalty is morally unjustifiable.]
Ninth Circuit: David Zachary v. California Bank and Trust
Bankruptcy
Petitioner can cram down plans over the objection of a dissenting class of unsecured creditors while retaining post-petition property but not while retaining pre-petition property .
(From summary)
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/28/13-16402.pdf
Petitioner can cram down plans over the objection of a dissenting class of unsecured creditors while retaining post-petition property but not while retaining pre-petition property .
(From summary)
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/28/13-16402.pdf
Eighth Circuit: United States v. Quincy Jackson
Immigration
Agency Violence Against Women Act finding that underlying marriage was bona fide did not compel the IJ to accept that finding when balancing deportation arguments (including VAWA) when the IJ had already issued an opinion that the marriage was fraudulent.
http://media.ca8.uscourts.gov/opndir/16/01/143671P.pdf
Agency Violence Against Women Act finding that underlying marriage was bona fide did not compel the IJ to accept that finding when balancing deportation arguments (including VAWA) when the IJ had already issued an opinion that the marriage was fraudulent.
http://media.ca8.uscourts.gov/opndir/16/01/143671P.pdf
Eighth Circuit: Judith Mutie-Timothy v. Loretta E. Lynch
Fourth Amendment
Probable cause for search of aircraft after drug dog alert.
http://media.ca8.uscourts.gov/opndir/16/01/143756P.pdf
Probable cause for search of aircraft after drug dog alert.
http://media.ca8.uscourts.gov/opndir/16/01/143756P.pdf
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