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.
Seventh Circuit: Highway J Citizens Group UA v. TRAN
Deference to implicit agency view that road renovation project falls within NEPA exclusion, since agency approved the program.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-05/C:17-1036:J:Easterbrook:aut:T:fnOp:N:2165825:S:0
Seventh Circuit: John Crane, Incorporated v. Shein Law Center, Ltd.
Insufficient personal jurisdiction over out of state counsel under state long-arm statute where all contacts with forum state were incidental to the litigation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-04/C:17-1926:J:Kanne:aut:T:fnOp:N:2165287:S:0
Seventh Circuit: Cheryl Dalton v. Teva North America
Bare statement of diversity of citizenship does not suffice for jurisdiction.
State liability statute required expert testimony on causation; neither a claim of obviousness nor a strict liability theory of claim defeats this.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-04/C:17-1990:J:Barrett:aut:T:fnOp:N:2165052:S:0
Sixth Circuit: Sunrise Cooperative v. United States Dep't of Agric.
Agency's regulation of benefit plan foreclosed by Chevron step one: although there have been substantial changes in the business entity, the statute unambiguously qualifies the entity as a legitimate recipient.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0104p-06.pdf
Sixth Circuit: United States v. Alejandro Cota-Luna
Court's rejection of plea agreement was an abuse of discretion, as the stated reasons weren't relevant to the defts culpability. (Deft had no knowledge of the amount of drugs underneath the truck.)
Reassigned on remand.
Concur in J: legal error in safety valve relief sentencing consideration sufficed for remand.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0103p-06.pdf
Fourth Circuit: Kathy A. Netro v. GBMC
Portion of unpaid state court judgment that plaintiff would eventually have to reimburse to the federal government sufficed for Article III injury for the plaintiff.
Statute, although not formally a qui tam statute, effected a partial assignment of claim sufficient for standing.
Delay in payment of judgment not unreasonable, though.
http://www.ca4.uscourts.gov/opinions/171597.P.pdf
Second Circuit: US v. Castillo
Government's premature concession that advisory sentencing guidelines residual clause was void for vagueness did not forfeit the claim, as it's a question of law, and the court can decide on its own.
Offense can be defined for purposes of modified categorical review by combining common law, state codes, and MPC.
Recklessness suffices for the mental state when categorizing manslaughter as a crime of violence.
Under modified categorical review, state manslaughter statute is a crime of violence, as even an omission can(?) require recklessness.
http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/2/doc/16-4129_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/2/hilite/
Second Circuit: duPurton v. US
New evidence insufficient for coram nobis petition, as it doesn't conclusively establish earlier error.
http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/1/doc/17-151_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/1/hilite/
First Circuit: Potvin v. Speedway LLC
Property owner has no duty to warn where the danger is open and obvious.
Distracting effects of nearby gas pumps waived as not raised below.
Absent evidence of design defects in statutorily mandated safety devices, no duty to remedy any danger they present.
No abuse of discretion in District Court's substitution of one deft for another, given offer to indemnify.
"Longiloquent" apparently a word.
http://media.ca1.uscourts.gov/pdf.opinions/17-1993P-01A.pdf
First Circuit: Coskery v. Berryhill
Dicta: Deference to agency view that amendment of regulation didn't have retroactive effect.
ALJ's adverse credibility determination can be upheld on other grounds.
ALJ considered appropriately broad range of evidence.
http://media.ca1.uscourts.gov/pdf.opinions/17-1886P-01A.pdf
First Circuit: US v. Melendez-Gonzales
AUMF for the War of Terror sufficed for statutory tolling of the statute of limitations; the indictment might otherwise have been untimely.
Court's instruction that a group of visitors not attend in full military dress did not, for constitutional purposes, close the courtroom. Challenge to court's subsequent mention in jury instructions waived for not being raised below.
Prosc. witness description of "fraud" not unfairly prejudicial, possible hearsay harmless error.
Sentencing bumps, including uncharged conduct, established by preponderance; longer sentence for deft convicted of fewer counts not unreasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1084P-01A.pdf
First Circuit: US v. Lawson
SORNA -- remand for unexplained upward variance in period of supervised release.
http://media.ca1.uscourts.gov/pdf.opinions/17-1084P-01A.pdf
Signing off for the week.
Much reading to do about early modern law & drama. Back next week, if the crick don't rise. Decisions in the interval (including some from yesterday) are water under the dam. This site is basically an odd mix of work-in-progress, proof-of-concept, and going concern. In short, I post when I have the time. Kind of a batting practice, really. Cheers.
-CB
Fifth Circuit: Marc Veasey, et al v. Greg Abbott, et al
En Banc, Election Law
(Panel of 15)
(7 + 2 partial* & in the judgment)
*A claim of discriminatory purpose in the passage of a law cannot be based on statements from legislators opposed to the passage of the bill.* (This part not joined by the 2)
In assessing discriminatory effect under the Voting Rights Act, a multi-factor test should be used, as opposed to a bright-line nexus requirement.
No ruling on violations of the 1st and 14th Amendment burden of right to vote, as a finding of statutory violation results in the same remedy.
Voter ID requirement was not a poll tax before the law was changed to make the ID free, and is still not a poll tax.
Not an abuse of discretion for the District Court to fashion a remedy, as the legislature is out of session.
Concurrence (2, both joining plurality, one in part):
Multifactor test good, as 5th invented much of it.
Won't open the floodgates, as courts can closely weigh factors.
Concurrence / Dissent (5)
Not a poll tax. Opinion otherwise incorrect. (68pp, mostly findings and merits)
Dissent (3, all in c/d above)
ID requirement still in place, since those who now have the ID must show it.
Judge below made myriad errors.
Concur/Dissent, Concur in J (1, joining plurality in part)
Discriminatory motive analysis of the plurality re-weighed merits inappropriately.
Dissent (6, all non-plurality)
Record justifies reversal on discriminatory purpose.
Dissent (2, both in prior dissent)
Record justifies reversal on discriminatory effect.
Dissent (1, Partially joined plurality)
Record justifies affirming on discriminatory intent.
Takeaway (remember, this is quick work) 9 for Remand for multifactor test on discriminatory effect; 8 for affirming on discriminatory purpose (7 for remand); 14 for the lack of Poll Tax violation; 3 for egg salad; 2 for pastrami.
Marc Veasey, et al v. Greg Abbott, et al
Third Circuit: USA v. Raymond Napolitan
Habeas, Federal Jurisdiction
A federal court does not abuse its discretion in ordering a custodial sentence to be served consecutively with a state sentence despite the possibility that the state sentence was rendered unconstitutionally.
Procedurally, this means that a state custodial sentence cannot be challenged on constitutional grounds on federal direct appeal.
USA v. Raymond Napolitan
Second Circuit: United States v. Jones
Sentencing
Plain error to hold under categorical review that state statute is a valid predicate crime of violence for the purposes of the sentencing guidelines.
United States v. Jones
Second Circuit: Orchard Hill Master Fund v. SBAC Corp.
Contracts, Your guess is as good as mine
Where a contract for payment of interest on a note compels offsetting payments where the note is converted between the computation date and the payment date, the payment of final interest to the noteholder upon maturity is a contractually distinct mechanism, and the contract provision canceling the first mechanism is most appropriately read as enabling the second.
Perhaps.
Orchard Hill Master Fund v. SBAC Corp.
Second Circuit: Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties
International, FSIA
Error for court below to use the Executive Order implementing sanctions to define the scope of foreign state entities under the FSIA. Definition comes from established constructions.
US corporate entities cannot equitably be read as alter egos of foreign citizens in order to qualify for the protections of a statute requiring foreign nationality. An equitable alter ego construction can, however, be used to establish the merits of a claim against the entity on behalf of the state.
Insufficient day-to-day control and disregard of the corporate form to establish entity's liability on behalf of the foreign state.
Although second statute is codified proximate to the FSIA, an agency or instrumentality might qualify under one but not the other, since the reference in one statute is to foreign states, and the other refers to terrorist organizations.
Alter ego implies a more profound degree of control than does agency/instrumentality.
Government had a possessory interest in the seized assets because the assets met the terms of the executive order, not because the court trustee had actual possession.
Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties
Second Circuit: In re 650 Fifth Avenue and Related Properties
FRCP, Fourth Amendment
(Summary judgment rulings on merits.)
Sua sponte grant of summary judgment on affirmative defense of statute of limitations procedurally prejudiced the nonmovant, and is barred under FRCP.
Warrant in civil forfeiture action that did not explicitly incorporate the supporting affidavit was insufficiently particular. Error by the court below in holding that evidence preservation and discovery obligations meant that the evidence was admissible under inevitable discovery, since the action at the time of the service of warrant imposed limited production requirements.
Seven page caption.
In re 650 Fifth Avenue and Related Properties
First Circuit: Marrero-Mendez v. Calixto-Rodriguez
S1983, Religion, First Amendment, Establishment Clause
Even absent consideration of the on-point precedent, denial of qualified immunity for S1983 challenge to police group prayer would be upheld.
Marrero-Mendez v. Calixto-Rodriguez
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