Seventh Circuit: Rae McCann v. Badger Mining Corporation


Claim of factual error insufficient for finding of pretextual justification of employment decision where facts do not indicate that employer had knowledge of the facts.

Employer's agreement to transfer request does not raise material fact regarding veracity of employer's reservations.

Given breadth of workforce reduction insufficient showing of suspicious timing.

Emails evincing employer's knowledge of disability insufficient to establish animus.



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Sixth Circuit: S. Jones v. City of Detroit, Mich.


Qualified Immunity for S1983 claim alleging transportation of wheelchair-bound arrestee in cargo van with insufficient restraints and headroom.

Dissent: General right of nonviolent arrestee to be free from intentional acts causing pain and dangerous situations sufficient to establish the right -- granular precedent describing wheelchairs in cargo vans is not required.





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Sixth Circuit: United States v. Joseph Taylor, III


Probation Officers were not required to inform probationer of right to refuse consent to search of closed spaces.  Consent was valid, not a mere acquiescence to authority.

No clear error in District Court's finding that probation officers' testimony of spoken acquiescence was sufficient and credible as unequivocal, free and voluntary.

Later spoken permission to search house sufficient to encompass crawlspaces.

Consent to later police search was valid despite lack of proof that deft knew that he could refuse.











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SIxth Circuit: United States v. Michael Stephens



Vacate and remand, given recent circuit precedent holding that Attempt is not a valid predicate for ACCA sentencing bump.



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Sixth Circuit: United States v. Jonathan Shelton


Police testimony of confirming field test, and sufficient officer expertise establish the reasonableness of traffic stop for tinted windows in the process of investigating possible firearms violation -- photographs of the windows need not be introduced in evidence.





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Fifth Circuit: USA v. Robert Brandon

As deft took affirmative steps to conceal possession of firearm, court's acceptance of guilty plea without colloquy or finding on scienter to establish that deft knew that his previous conviction would prohibit possession was not plain error.

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Fifth Circuit: USA v. Chia Lee, et al


Sufficient evidence, given facts.

Where deft lives in a certain judicial district and has a bank in that district, jury might have legitimately found that venue was proper in conspiracy in prosecution; vicinage concerns are not implicated where deft lives in the district.

Jury sending note to judge during proceedings asking for clarification of charges is insufficient to establish improper deliberations where individually interviewed jurors claim that discussion of the merits had not occurred.

Govt experts general statements based on small fraction of files reviewed were harmless error.

Although instruction on deliberate ignorance was an abuse of discretion given lack of purposeful contrivance, inclusion was harmless error.

No clear error where sentencing report estimates drug quantities without a showing on the percentage of lawful prescriptions.

No plain error where conflicting findings would result from using the totality of either of the two versions of the Guidelines, rather than the combination of the two elected by the sentencing court.

Firearm in adjoining office sufficient for sentencing bump where prescriptions were written in an examination room.



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Fifth Circuit: USA v. James Perryman


Commerce Clause sufficient justification for law barring convicted felon's possession of weapon that at some point previous travelled in interstate commerce; present interstate travel need not be established.

PSR's unsworn statements describing previous proceeding are sufficient to establish perjury for the purpose of sentencing bump where the court also adopts an addendum that contains the relevant record excerpts.


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Fourth Circuit: Nathaniel Hicks v. Gerald Ferreyra


Claim that S1983 action against Park Service police for unlawfully detaining a Secret Service agent constitutes an impermissible extension of Bivvens is waived for not being raised below; District Court was not obliged to independently assure itself of the remedy's availability, and the scope of the Bivvens remedy is not a jurisdictional question.

Appeal citing deposition testimony contrary to the reading of the facts in the decision below is not a matter for interlocutory review.

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Fourth Circuit: US v. Daryl Bank


Explicit waiver of Double Jeopardy rights in agency civil proceeding does not bar current challenge, since agreement did not reference future or criminal proceedings, and agency's equitable remedy was not yet considered a criminal punishment.

Although disgorgement is meant as a punitive measure for behaviour that violates the public law, the determination that the criminal statutes of limitations apply is an insufficiently clear rule to establish that the penalty is sufficiently criminal in nature to justify a double jeopardy claim, in that the legislature clearly intended a civil equitable remedy when it empowered the agency to seek it.



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Third Circuit: Christina Williams v. Medley Opportunity Fund II, LP


Reference to delegation clause in challenge to validity of an arbitration agreement is sufficient to merit review of the validity of the clause, even where the agreement elsewhere specifies that the enforceability of the agreement is a matter for arbitration.

Where parties do not provide court with the substance of the Tribal law selected by the agreement's choice of law provision, the law of the forum is used to assess which statutory claims might be raised against the agreement.

Choice of law terms in an arbitration agreement do not necessarily expand the range of claims that can be raised under the arbitrability sections of the agreement.

Where an arbitration agreement clearly waives federal rights, it need not explicitly do so to be an impermissible prospective waiver for reasons of public policy.

Waiver sufficiently central to the arbitration process to strike the entire agreement.

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Second Circuit: United States v. Muzio


Insufficient substantive error in sentencing where mandatory minimum is imposed for acquisition and possession of abuse images where the contact with the victims was virtual rather than physical.

Insufficient procedural plain error in sentencing where a 200 year Guidelines maximum is calculated to be 500 years, where the sentence ultimately follows statutory minimums instead.

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Second Circuit: La Liberte v. Reid


Motion to strike pleading in Federal court based on state statute requiring an elevated pleading for defamation cases is not valid, as it conflicts with FRCP pleading and summary judgement rules.  As the statute awards fees only for its own process, dismissal under the Federal pleading rules does not automatically justify an award of fees.

Deft is not shielded by the CDA for independently authored social media posts that include information available elsewhere on social media.  Sole authorship of the post in question is sufficient material contribution to establish the poster as the sole information source for the purposes of a defamation claim.

Testifying at public meetings in addition to a lot of other public speech is insufficient to establish a person as a limited purpose public figure, since the designation was created to recognize that some figures had sufficient media clout to respond to attacks on their own.

A juxtaposition of an image of the plaintiff with an image of racist conduct was sufficiently clear, both in itself and within the frame of general knowledge, to establish libel per se by implication.










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Hiatus

Brief hiatus, as there are other demands on the attention.  Still a going concern.  Cheers.

CB
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http://www.ca5.uscourts.gov/opinions/pub/17/17-60774-CV0.pdf

http://www.ca5.uscourts.gov/opinions/pub/18/18-40270-CV0.pdf

 http://media.ca8.uscourts.gov/opndir/18/09/172759P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/181725P.pdf

 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/24/16-56633.pdf

https://www.ca10.uscourts.gov/opinions/17/17-1236.pdf

Quick work tonight, however slow -- travelling, distracted, what have you.  Just batting practice.

-CB
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Sixth Circuit: Tenn. Clean Water Network, et al. v. TVA

As the Act requires a point source, not seeping groundwater or permeable hydrological network, the pollution here is outside of its scope.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0214p-06.pdf
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Sixth Circuit: Ky. Waterways Alliance v. Kentucky Util. Co.

Act does not cover groundwater pollution or complex hydrological networks; the precedent suggesting this in fact discusses interconnected larger waters, and federalism and practical enforcement concerns dictate a narrower reading of the regulated bodies of water.

Prudential abstention is not available to the court where a citizen cause of action is directly created by a statute that makes use of factors that would suggest abstention.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0213p-06.pdf




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Third Circuit: Holly Judge v. Shikellamy School District


Presumptively valid and willful resignation forecloses any direct claim of discriminatory duress.  Multi-factor test from 9th governs.

http://www2.ca3.uscourts.gov/opinarch/172189p.pdf


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Third Circuit: Robert Schultz, Jr. v. Midland Credit Management


FDCPA Act boilerplate debt collector's letter threatening reporting to the IRS when the matter in question was less than the amount the IRS required be reported states a claim, and may later prevail,  as it only takes one juror.

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Third Circuit: USA v. Reynaldo Rivera-Cruz


When the statutory maximum or minimum sentence is outside of the guidelines range, the range drops out of the sentencing scheme.  Subsequent revisions to the guidelines therefore do not serve as the basis for an appeal of the sentence.

http://www2.ca3.uscourts.gov/opinarch/173448p.pdf


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