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.
Fourth Circuit: In re: John McFadden
Habeas/AEDPA
Newly discovered evidence that deft lost out on a favorable plea offer is not grounds for a second/successive petition.
In re: John McFadden
Second Circuit: N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
Labor Law, Arbitration
When an employer organization has an agreement with an International union, and that agreement contradicts elements of the Local's court-supervised contract, an arbitration award allowing the employers to follow the agreement with the International is within socpe, entitled to deference, and does not violate public policy.
The arbitrator's finding does present a question of whether the court-approved Local contract was approved with insufficient information.
N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
When an employer organization has an agreement with an International union, and that agreement contradicts elements of the Local's court-supervised contract, an arbitration award allowing the employers to follow the agreement with the International is within socpe, entitled to deference, and does not violate public policy.
The arbitrator's finding does present a question of whether the court-approved Local contract was approved with insufficient information.
N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
Second Circuit: Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.
FISA
When a foreign bank that is an instrument of the foreign sovereign freezes an account acting while acting in its governmental/regulatory capacity, the commercial exception to FISA isn't a basis for jurisdiction.
Freezing of account didn't happen in US, didn't have sufficient direct effects in US.
Routine law-enforcement freezing of funds doesn't rise to the level of a taking without compensation in violation of international law.
Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.
Second Circuit: Austin v. Town of Farmington
FHA does not impose a per se bar to a municipal requirement that accommodations constructed contrary to code be removed after the disabled person no longer lives there.
Whether the removal requirement violates the FHA is a question of reasonableness for the court; can't be made from pleadings.
Retaliation claim under the FHA must plead and prove animus.
Austin v. Town of Farmington
Federal Circuit: FORD MOTOR COMPANY v. US
Statute of Limitations
Filing time limit in statute is not jurisdictional, as there is no specific intent evident in the statute to make it one.
No error in CIT declining to issue declaratory relief, as there are other avenues for plaintiff to challenge.
Where a court dismisses claims on discretionary grounds and some similar claims under a statute of limitations that is later held not to be jurisdictional, the court of appeals can presume that the latter claims would similarly have been dismissed on discretionary grounds.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1726.Opinion.2-1-2016.1.PDF
Filing time limit in statute is not jurisdictional, as there is no specific intent evident in the statute to make it one.
No error in CIT declining to issue declaratory relief, as there are other avenues for plaintiff to challenge.
Where a court dismisses claims on discretionary grounds and some similar claims under a statute of limitations that is later held not to be jurisdictional, the court of appeals can presume that the latter claims would similarly have been dismissed on discretionary grounds.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1726.Opinion.2-1-2016.1.PDF
Eleventh Circuit: Crew One Productions, Inc. v. National Labor Relations Board
Labor, Employment, Agency
Given hiring agency's lack of control over stage hands on the job and several other factors, NRLB certification of an exclusive representative was not supported by substantial evidence.
http://media.ca11.uscourts.gov/opinions/pub/files/201510429.pdf
Given hiring agency's lack of control over stage hands on the job and several other factors, NRLB certification of an exclusive representative was not supported by substantial evidence.
http://media.ca11.uscourts.gov/opinions/pub/files/201510429.pdf
Eleventh Circuit: Ramon F. Danny, Jr. v. Secretary, Florida Department of Corrections, et al.
Habeas, AEDPA
Untimely state direct appeal captioned under the shared collateral/direct state procedural rule cannot be construed as a collateral challenge to toll the AEDPA clock, as it doesn't reach the merits of the collateral challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201415522.pdf
Untimely state direct appeal captioned under the shared collateral/direct state procedural rule cannot be construed as a collateral challenge to toll the AEDPA clock, as it doesn't reach the merits of the collateral challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201415522.pdf
Ninth Circuit: MARIO GARCIA V. COUNTY OF RIVERSIDE
S1983
Denials of state law quasi-judicial immunity can be appealed on an interlocutory basis, as the immunity is potentially absolute.
Arrest of a person with a a substantial difference in height from the person described on the warrant states a 14A S1983 claim.
State immunity statute shields only the arresting officer, and presumes reasonable belief.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/03/13-56857.pdf
Denials of state law quasi-judicial immunity can be appealed on an interlocutory basis, as the immunity is potentially absolute.
Arrest of a person with a a substantial difference in height from the person described on the warrant states a 14A S1983 claim.
State immunity statute shields only the arresting officer, and presumes reasonable belief.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/03/13-56857.pdf
Ninth Circuit: MANUEL VALENCIA V. LORETTA E. LYNCH
Immigration
Chevron deference to AG decision that grandfathering statute implicitly bars relief to later substituted applicants.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70414.pdf
Chevron deference to AG decision that grandfathering statute implicitly bars relief to later substituted applicants.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70414.pdf
Ninth Circuit: JERRY VILLAVICENCIO-ROJAS V. LORETTA E. LYNCH
Immigration
For immigration purposes, where there are two counts charged, but they are from a single event, case, and sentence, the petitioner remains a first-time offender.
Concurrence: Single case and sentence. The critical thing is that the petitioner has not previously been considered a first time offender.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70620.pdf
For immigration purposes, where there are two counts charged, but they are from a single event, case, and sentence, the petitioner remains a first-time offender.
Concurrence: Single case and sentence. The critical thing is that the petitioner has not previously been considered a first time offender.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/02/13-70620.pdf
Eighth Circuit: State of Nebraska v. EPA
Environment, Administrative
Agency's lack of deference to state findings on costs accrued by different methods of pollution abatement was per se not an abuse of discretion, given that the Act contemplates more than ministerial approval.
Federal agency's regional rule that incorporates a national standard is not barred from review as a national rule, since the agency has not found it to be a national rule. The expertise involved mandates deference to the agency's findings, which are not an abuse of its discretion.
http://media.ca8.uscourts.gov/opndir/16/02/123084P.pdf
Agency's lack of deference to state findings on costs accrued by different methods of pollution abatement was per se not an abuse of discretion, given that the Act contemplates more than ministerial approval.
Federal agency's regional rule that incorporates a national standard is not barred from review as a national rule, since the agency has not found it to be a national rule. The expertise involved mandates deference to the agency's findings, which are not an abuse of its discretion.
http://media.ca8.uscourts.gov/opndir/16/02/123084P.pdf
Eighth Circuit: Travis Chaney v. Carolyn W. Colvin
SSA
ALJ's less than fully credible conclusions are nonetheless supported by substantial evidence.
http://media.ca8.uscourts.gov/opndir/16/02/143433P.pdf
ALJ's less than fully credible conclusions are nonetheless supported by substantial evidence.
http://media.ca8.uscourts.gov/opndir/16/02/143433P.pdf
Eighth Circuit: Herman Hutton v. Danny Maynard, Sr.
Discrimination
Discriminatory language used by employer between an employee's promotion of a minority candidate and the subsequent dismissal of the employee is insufficient to prove direct causation, and where the language is not employment-related, it is insufficient to establish indirect causation.
http://media.ca8.uscourts.gov/opndir/16/02/151300P.pdf
Discriminatory language used by employer between an employee's promotion of a minority candidate and the subsequent dismissal of the employee is insufficient to prove direct causation, and where the language is not employment-related, it is insufficient to establish indirect causation.
http://media.ca8.uscourts.gov/opndir/16/02/151300P.pdf
Seventh Circuit: Garrett Fishwick v. City of Chicago
Discrimination
Claims of a lack of transparency in hiring insufficient to violate consent order barring political influence in hiring,also time-barred.
Res judicata bars claim previously dismissed in state court.
No evidence that gov't consented to claim splitting, as it asserted res judicata in all filings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:14-2977:J:Bauer:aut:T:fnOp:N:1697358:S:0
Claims of a lack of transparency in hiring insufficient to violate consent order barring political influence in hiring,also time-barred.
Res judicata bars claim previously dismissed in state court.
No evidence that gov't consented to claim splitting, as it asserted res judicata in all filings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:14-2977:J:Bauer:aut:T:fnOp:N:1697358:S:0
Seventh Circuit: Terry Deets v. Massman Construction Company
Employment, Discrimination
Statement by employer that percentage of minority employees was to low creates genuine issue of material fact as to whether the subsequent layoff of a worker who had recently lost seniority was discriminatory.
Mitigation as an affirmative defense for Title VII operates as a damages offset.
S1981 allows suits against corporate entities in joint venture, as it contemplates interference with contracts.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-1411:J:Williams:aut:T:fnOp:N:1697105:S:0
Statement by employer that percentage of minority employees was to low creates genuine issue of material fact as to whether the subsequent layoff of a worker who had recently lost seniority was discriminatory.
Mitigation as an affirmative defense for Title VII operates as a damages offset.
S1981 allows suits against corporate entities in joint venture, as it contemplates interference with contracts.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-1411:J:Williams:aut:T:fnOp:N:1697105:S:0
Seventh Circuit: USA v. Lawrence McCarroll
Sentencing
Where a change in the sentencing law would not affect the guidelines calculation, a reduction of the term of imprisonment is not authorized by the statute, despite the fact that the lower point total might allow for more discretion at resentencing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-2492:J:PerCuriam:aut:T:fnOp:N:1697080:S:0
Where a change in the sentencing law would not affect the guidelines calculation, a reduction of the term of imprisonment is not authorized by the statute, despite the fact that the lower point total might allow for more discretion at resentencing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-2492:J:PerCuriam:aut:T:fnOp:N:1697080:S:0
Seventh Circuit:Hans-Peter Baumeister v. Deutsche Lufthansa AG
International, Contracts
Foreign contract covering performance by a nonparty but assigning liability for complete nonperformance to the nonparty does not allow the party to the contract to be sued for breach in a US forum under a foreign statutory cause of action adopted by the contract. (Airline code-sharing, EU legislation)
(In a different matter:)
Domestic contract where the foreign nonparty generally incorporates the foreign statutory cause of action in its agreements is not modified to include the cause of action under apparent authority when the nonparty is the visible agent in the fulfillment of the contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:14-2633:J:Posner:aut:T:fnOp:N:1696487:S:0
Foreign contract covering performance by a nonparty but assigning liability for complete nonperformance to the nonparty does not allow the party to the contract to be sued for breach in a US forum under a foreign statutory cause of action adopted by the contract. (Airline code-sharing, EU legislation)
(In a different matter:)
Domestic contract where the foreign nonparty generally incorporates the foreign statutory cause of action in its agreements is not modified to include the cause of action under apparent authority when the nonparty is the visible agent in the fulfillment of the contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:14-2633:J:Posner:aut:T:fnOp:N:1696487:S:0
Fifth Circuit: USA v. Oscar Juarez
Sentencing
Where the court erroneously states at sentencing that there is no guidelines range, a sentence representing an upward departure is error - remanded.
Not harmless.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40191-CR0.pdf
Where the court erroneously states at sentencing that there is no guidelines range, a sentence representing an upward departure is error - remanded.
Not harmless.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40191-CR0.pdf
Fourth Circuit:James Hayes v. Delbert Services Corporation
Arbitration, Choice of Law, Tribe Law
Loan agreement arbitration clause electing the forum and law of the Sioux nation is invalid and unenforceable, as it operates as a waiver of all federal rights.
Not severable from arbitration provision.
No need to exhaust tribal remedies, as the controversy has nothing to do with the tribe.
http://www.ca4.uscourts.gov/Opinions/Published/151170.P.pdf
Loan agreement arbitration clause electing the forum and law of the Sioux nation is invalid and unenforceable, as it operates as a waiver of all federal rights.
Not severable from arbitration provision.
No need to exhaust tribal remedies, as the controversy has nothing to do with the tribe.
http://www.ca4.uscourts.gov/Opinions/Published/151170.P.pdf
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