A relator under the Act can seek voluntary dismissal with prejudice for purely private interests without binding the non-intervening government side, whose interests in the claim are dismissed without prejudice.
Statute requiring written opinion and reason for decision presents two freestanding requirements which can be accomplished separately.
Relators' having shared counsel with second relator in another forum who intends to pursue the action does not establish bad faith.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20389-CV0.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.
Third Circuit: USA v. Amy Gonzalez
Sufficient evidence for conspiracy conviction where the deft claims a genuine belief in the inciting statements, but finder of fact holds them to be objectively false.
Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime. Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.
For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.
As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.
A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.
Possibly prejudicial prior family court records properly admitted with limiting instructions.
Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.
Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.
,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.
Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect. Vouching appropriately limited by instruction.
Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.
Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.
Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.
Injury to victim's children justified the increase of sentence for harming a vulnerable victim.
Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.
http://www2.ca3.uscourts.gov/opinarch/161540p.pdf
Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime. Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.
For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.
As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.
A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.
Possibly prejudicial prior family court records properly admitted with limiting instructions.
Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.
Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.
,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.
Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect. Vouching appropriately limited by instruction.
Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.
Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.
Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.
Injury to victim's children justified the increase of sentence for harming a vulnerable victim.
Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.
http://www2.ca3.uscourts.gov/opinarch/161540p.pdf
Third Circuit: Joseph Brown v. Sage
When determining whether a prisoner's petition to proceed as a poor person is barred under statute due to having already filed three complaints that did not state a valid claim, the procedural law of the present forum controls, not the law of the forum in which the previous claims were filed.
The number of previously filed complaints is determined by counting all claims resolved before the filing date of the present action.
Concur/dissent - the discretionary power of dismissal in the PLSRA is a more efficient mechanism, and the analysis mandated here seems to foreclose that flexibility.
http://www2.ca3.uscourts.gov/opinarch/171222p.pdf
The number of previously filed complaints is determined by counting all claims resolved before the filing date of the present action.
Concur/dissent - the discretionary power of dismissal in the PLSRA is a more efficient mechanism, and the analysis mandated here seems to foreclose that flexibility.
http://www2.ca3.uscourts.gov/opinarch/171222p.pdf
Second Circuit: United States v. Pereira-Gomez
State Robbery statute is a valid predicate crime of violence, as even the passive examples raised here implied the threatened use of force. Where the underlying offense is a crime of violence, the attempt is also a crime of violence.
http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/doc/17-952_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/doc/17-952_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/hilite/
End of day
The voices of the day murmur low and sink to rest. Also decided today:
http://media.ca8.uscourts.gov/opndir/18/09/164532P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172401P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172413P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172424P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172995P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/173202P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/186007P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/18-55911.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/17-55165.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-71380.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-15338.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/15-15143.pdf
https://www.ca10.uscourts.gov/opinions/17/17-3206.pdf
In other matters, diss continues apace, slings and arrows survived. Onward.
-CB
http://media.ca8.uscourts.gov/opndir/18/09/164532P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172401P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172413P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172424P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172995P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/173202P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/186007P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/18-55911.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/17-55165.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-71380.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-15338.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/15-15143.pdf
https://www.ca10.uscourts.gov/opinions/17/17-3206.pdf
In other matters, diss continues apace, slings and arrows survived. Onward.
-CB
Seventh Circuit: Supreme Auto Transport, LLC v. Arcelor Mittal USA, Inc.
Antitrust suit against producer of raw metal cannot relate back its revised claim, making it untimely; the shift from industrial plaintiffs to the end users of the products gave the defendants insufficient notice to preserve documents and prepare for trial.
State antitrust laws likely require closer proximancy than the end user of the products, as loss calculation becomes difficult.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-06/C:17-2910:J:Wood:aut:T:fnOp:N:2213421:S:0
State antitrust laws likely require closer proximancy than the end user of the products, as loss calculation becomes difficult.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-06/C:17-2910:J:Wood:aut:T:fnOp:N:2213421:S:0
Sixth Circuit: Neil Morgan v. Fairfield Cty., Ohio
Denial of qualified immunity for municipality policy authorizing police officers to surround a house, standing 5-7 feet from it before knocking on door to discuss a possible violation of the law, as the systematic invasion of the curtilage wasn't considered. Immunity upheld for individual officers upheld, given evolving caselaw.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0199p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0199p-06.pdf
Fifth Circuit: Consumer Financial Protection v. Source for Public Data
Agency administrative subpoena that does not identify the activity under investigation or the relevant provision of law does not allow for judicial review of the reasonableness of the request, making it statutorily infirm.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10732-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-10732-CV0.pdf
Fifth Circuit: David Hager v. Todd G. Rowan
Discharged employee retains ERISA standing to challenge COBRA notification.
Since the employee was no longer eligible for the plan, medical costs otherwise covered by the plan are not an appropriate remedy; as the remedy must be in equity, the medical costs are similarly an inappropriate award; the proper remedy is a penalty based on the seriousness o the violation, and it is entirely possible that the amount of the penalty is equal to the medical costs incurred.
Third Circuit: Gordon Tima v. Attorney General United States
Statute that allows discretionary waiver of certain bad acts that would otherwise result in deportation by its terms only refers to fraud affecting admissibility, so a conviction for making false statements during an investigation of the admissibility fraud is not subject to discretionary waiver.
Third Circuit: Mona Estrada v. Johnson & Johnson
A person who purchases a product later found to be unsafe but who suffers no harm from the use of the product and who did not forgo purchasing a cheaper version of the product does not suffer sufficient injury for Article III standing, as they have received the benefit of their bargain.
Dissent: Safety of the product is an element of the bargain.
http://www2.ca3.uscourts.gov/opinarch/172980p.pdf
Dissent: Safety of the product is an element of the bargain.
http://www2.ca3.uscourts.gov/opinarch/172980p.pdf
First Circuit: Rivera v. Sessions
Procedural error in immigration administrative appeal seeking discretionary relief cannot present a cognizable constitutional question for purposes of Article III review, as there is no cognizable, constitutionally guaranteed liberty interest.
http://media.ca1.uscourts.gov/pdf.opinions/18-1243P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/18-1243P-01A.pdf
First Circuit: US v. Freitas
No prejudice from admission of co-conspirator hearsay, given overwhelming evidence of guilt.
Challenges to instructions either waived for insufficient development or contradicted by record.
Challenge to sufficiency of the evidence waived,, as appeal did not state or argue the standard of review.
No prejudice from plain error in prosecution's closing that went beyond the facts established at trial.
First Circuit: Doe v. Harvard Pilgrim Health Care
The administrative record for the purpose of judicial review properly includes documentary evidence from the post-filing review process, where both parties consent to the addition of the record in the post-filing process.
ERISA appeals at summary judgment are governed by clear error; remand to allow the court to interpret the documents.
http://media.ca1.uscourts.gov/pdf.opinions/17-2078P-01A.pdf
ERISA appeals at summary judgment are governed by clear error; remand to allow the court to interpret the documents.
http://media.ca1.uscourts.gov/pdf.opinions/17-2078P-01A.pdf
End of Day
Should have been able to get through all of these. Citius, altius, etc. Brain-cloud, perhaps.
http://media.ca8.uscourts.gov/opndir/18/09/173242P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/163891P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172012P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/17-35355.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/16-35431.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/13-56061.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201714677.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201315258.pdf
-CB
http://media.ca8.uscourts.gov/opndir/18/09/173242P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/163891P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172012P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/17-35355.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/16-35431.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/13-56061.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201714677.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201315258.pdf
-CB
Seventh Circuit: USA v. Daniel Stewart
No plain error in prolongation of traffic stop, given the minimal length of traffic stop. Sufficient evidence for money laundering, given illicit source of funds.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-05/C:16-4105:J:Rovner:aut:T:fnOp:N:2212702:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-05/C:16-4105:J:Rovner:aut:T:fnOp:N:2212702:S:0
Sixth Circuit: Brittany Harris v. Kimberly Klare
Denial of qualified immunity as a matter of law for officer's search of minor during traffic stop, as there is a question of whether the officer knew that there were minimal grounds for suspicion and that a dog search had turned up nothing; denial of qualified immunity as a matter of law for consensual search, as minor plaintiff was hancuffed, surrounded by police, had been stopped for an hour, and the search was apparently a precondition to using the restroom.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0198p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0198p-06.pdf
Third Circuit: Damien Preston v. Superintendent Graterford SCI
Although counsel in the initial state collateral challenge was ineffective, excusing the waiver of the claim due to its omission, the underlying claim of ineffective assistance at trial due to the Confrontation Clause violation did not prejudice the petitioner, given the cumulative evidence of guilt.
http://www2.ca3.uscourts.gov/opinarch/163095p.pdf
http://www2.ca3.uscourts.gov/opinarch/163095p.pdf
Third Circuit: Township of Bordentown v. FERC
Issuance of a permit conditioned on obtaining of second state permit did not offend the Act, as the conditional permit did not allow any discharges into the waters of the United States.
As each project is viable without the other, agency was not arbitrary or capricious in considering them separately.
Deference to agency determination that nonjurisdictional utility project was not sufficiently connected to jurisdictional projects to warrant formal review.
Agency's determination of minimal impacts appropriately resolved claim of cumulative impacts.
etc, etc. ...
Original federal appellate jurisdiction for violations of the act does not displace state administrative remedies in the permitting process.
http://www2.ca3.uscourts.gov/opinarch/171047p.pdf
As each project is viable without the other, agency was not arbitrary or capricious in considering them separately.
Deference to agency determination that nonjurisdictional utility project was not sufficiently connected to jurisdictional projects to warrant formal review.
Agency's determination of minimal impacts appropriately resolved claim of cumulative impacts.
etc, etc. ...
Original federal appellate jurisdiction for violations of the act does not displace state administrative remedies in the permitting process.
http://www2.ca3.uscourts.gov/opinarch/171047p.pdf
Third Circuit: Carol Vorchheimer v. Philadelphian Owners Association
To state a claim for denial of necessary housing accommodation, plaintiff must establish the necessity of the accommodation beyond alternate solutions proposed by the landlord. Joint agency statement indicating that the tenant has a right to their suggested modification has little power to persuade, as it does not explicitly purport to interpret the statute.
http://www2.ca3.uscourts.gov/opinarch/171738p.pdf
http://www2.ca3.uscourts.gov/opinarch/171738p.pdf
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