The Circuit Barrister

Third Circuit: Delaware Riverkeeper Network v. Sec PA Dept Env Protection

Given the strong presumption of administrative unreviewability until final administrative action, the statute's silence eon the question, combined with a jurisdictional grant over state actions create an inference of unreviwability until after final administrative decision.

As the agency decision takes effect prior to administrative appeal and the administrative appeal happens within an entirely separate proceeding, the agency decision is sufficiently final for statutory exclusive jurisdiction.

Rulemaking notice was sufficient; there is no requirement that notice requirements be set forth in a regulation; notice allowed interested parties to participate meaningfully in a process that was actually pending.

Agency approval conditioned on subsequent permit grant was not intrinsically arbitrary and capricious.

Whether or not a Takings Clause claim can arise under the statute, there is sufficient remedy in the existing appeals process.

Statute and APA allow court to consider pendent claims arising from the state constitution.

http://www2.ca3.uscourts.gov/opinarch/162211p.pdf

Third Circuit: Marc Silver v. Omnicare Inc

Although the statute does not permit a relator to pursue a qui tam action where the fraud is public knowledge, where the relator uses privately available information to make sense of the public information and the public information, standing alone, would not reasonably or plausibly supported an inference of fraud under the heightened pleading requirements for the claim.

http://www2.ca3.uscourts.gov/opinarch/164418p.pdf

Third Circuit: Alex Taksir v. Vanguard Group

State action for breach of contract in reference to undisclosed transaction fees is not barred by the terms of the securities act, as the misrepresentation is not in connection to the sale of the security, and would not be material to the transaction. As the misrepresentation is outside of the act's scope, a fraud claim is similarly not forbidden.

http://www2.ca3.uscourts.gov/opinarch/173585p.pdf

Tenth Circuit: Grissom v. Carpenter

Trial counsel's arguments in mitigation phase at capital trial largely covered the ground that a closer examination of petitioner's undiagnosed brain damage would have led to, so state habeas ruling that representation was not constitutionally ineffective was not an unreasonable one.

Defense counsel's concession of the elements of the crime made instruction on lesser-included offenses redundant, and was apparently a legitimate strategic decision to focus the jury's attention on mitigation. As defendants cannot withdraw a defense, apparently stipulating to the elements shouldn't waive the instruction. Voluntary intoxication instruction was not prejudicial, given the high standard for relief under state law, and exists as a complete defense, not a mitigation. State habeas denial was therefore not unreasonable.

State habeas denial for cumulative error, presumably referencing ineffective assistance for the lack of lesser-included instruction and mitigation, was not unreasonable and contrary to law; de novo review of the total record in federal habeas can establish this.

https://www.ca10.uscourts.gov/opinions/16/16-6271.pdf

Ninth Circuit: Lucero v. Holland

Apparently incriminating gang writings insufficiently testimonial to trigger Confrontation Clause protections when introduced against a nontestifying codefendant.

Expert testimony that gang member was to have access to a weapon at all times and proximity to assault with a puncturing weapon insufficient to establish possession of a weapon.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/15-16111.pdf

Ninth Circuit: US v. Raygoza-Garcia

The vehicle's innocent conduct created sufficiently particularized and objective reasonable suspicion for the stop, given the experience of the officers.

Special Concur: True according to precedent, but problematic to use innocent conduct as basis for border stops.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/16-50490.pdf

Ninth Circuit: McCray v. Marriott

Where a labor right arises from a statute but is waived by a CBA, a challenge to the waiver is construed as a challenge to the statute, not to the CBA, making preemption removal inapposite and depriving the federal court of jurisdiction over the question of state law.

Dissent: It's about the CBA.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/17-15767.pdf

Eighth Circuit: Matthew Dickson v. Gospel for ASIA, Inc.

Arbitration agreement had sufficient mutuality in the counter-party's agreement to be bound.

Dissent: State law requires that, in order to create an enforceable agreement, both parties to an arbitration agreement must agree to arbitrate claims.

http://media.ca8.uscourts.gov/opndir/18/08/171191P.pdf

Seventh Circuit: Estate of Derek Williams, Jr. v. Jeffrey Cline

Remand of interlocutory review of denial of qualified immunity in order for the court below to make factual findings as to the defts' specific conduct.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-31/C:17-2603:J:Ripple:dis:T:fnOp:N:2211195:S:0

Seventh Circuit: USA v. Napoleon Foster

A conviction for using a firearm in the course of a robbery precludes increasing the underlying sentence for the robbery itself for explosive or weapons threats, even when those threats are unconnected to the firearm used in the robbery.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-31/C:17-3236:J:Scudder:aut:T:fnOp:N:2211361:S:0

Fifth Circuit: Joseph Zadeh, et al v. Mari Robinson, et al

While the medical profession generally is not a closely regulated industry for the purpose of determining the legitimate expectation of privacy of its members, pain management clinics might be a different case. Grant of qualified immunity upheld, as the scope of legitimate targets of administrative subpoenas was not clearly defined at the time.

Search not pretextual, as it was not conducted entirely to uncover criminality.

Court appropriately prudentially declined to hear application to stay state medical board's investigation, which can be considered a judicial proceeding.

Supervisor who acted according to the usual practices of the department was not deliberately indifferent to the potential harms of subdelegation.

Concur dubitante: @justicewillett -- QI problematic.

http://www.ca5.uscourts.gov/opinions/pub/17/17-50518%20-CV0.pdf

Fifth Circuit: Marcus Mote v. Debra Walthall

Employees' rights of expressive association and freedom of speech in forming association for mutual aid and support is protected under the First Amendment whether or not state law will permit the association to become an exclusive bargaining agent for the employees. Denial of qualified immunity upheld, as this was clearly established at the time.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40754-CV1.pdf

Third Circuit: Theodore Hayes v. Philip Harvey

Statute providing that a tenant receiving federal assistance may elect to remain in the housing under a different assistance program if the landlord opts out of the first assistance program creates a right to lease renewal absent good cause enforceable against any purchaser of a property currently rented to participants in the first assistance program.

Deference to agency's interpretation according to the power to persuade; remand to determine what constitutes good cause for nonrenewal.

http://www2.ca3.uscourts.gov/opinarch/162692p1.pdf

End of Day:

More:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:16-3430:J:Wood:dis:T:fnOp:N:2210484:S:0

http://media.ca8.uscourts.gov/opndir/18/08/171382P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171914P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172724P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172726P.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/16-71933.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/16-35991.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/15-73603.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201710944.pdf

-CB

Seventh Circuit: Milton v. Boughton

Although the evidence from the uncounseled lineup was not properly admissible, petitioner was not prejudiced from the admission, given the other eyewitness identifications.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:17-1910:J:PerCuriam:aut:T:fnOp:N:2210678:S:0

Seventh Circuit: Anthony Kaminski v. Nancy Berryhill

Panel rehearing order with request for edited opinion by agency head.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:17-3314:J:PerCuriam:aut:T:orCo:N:2210668:S:0

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