Fifth Circuit: Justin Atkins v. Timothy Hooper, Warden

State trial court's determination that detective's summary of statements of non-testifying witness was not inadmissible hearsay because it didn't recite the witness' words and the detective's purpose in describing the statements was to explain the course of the investigation was an unreasonable application of Supreme Court precedent.

State intermediate appeals citation referencing harmless error does not independently preserve the issue for the federal habeas claim, as the decision was looked through in favor of the reasoned decision of the lower court, and the issue was not presented in the federal collateral challenge.

Justin Atkins v. Timothy Hooper, Warden

Fifth Circuit: Six Dimensions, Incorporated v. Perficient, Inc.

 

District court "misapplied" its discretion by recognizing two contracts in its holding, but only reversing its holding as to one on the motion to reconsider due to the fact that the other party had not argued the second contract; the other party was not sufficiently put on notice by one sentence mentioning the agreement in a brief.

Statute's categorical bar on contractual restrictions on subsequent employment, followed by closely defined exceptions, creates a presumption that the statute ratifies the common law antipathy to such restrictions, rather than a rule of reason.

State consumer protection law in the state law elected in the contract doesn't apply, as there is a common law presumption against its extraterritorial exception, and no conduct harming consumers occurred in the state.

Continued possession of potential trade-secret materials from prior employer insufficient to establish acquisition under the law of the state.

Six Dimensions, Incorporated v. Perficient, Inc.

Fifth Circuit: ATOM Instrument Corporation, et al v. Petroleum Analyzer

 

District Court's interpretation of the terms of the arbitral agreement enjoining use of the technology and methods in a patent application is reviewed for plain error, as the reviewing court must make factual determinations as to whether the uses are sufficiently similar.

District court's restatement of the arbitral award did not substantially alter the law of the case.

Fees incurred prior to the filing of claim can be recovered under a fee-shifting statute where they are an attempt to resolve a threatened claim.

Court reasonably found fees to be nonsegregable as they generally advanced the litigation position.

State rules requiring party to seek contingent appellate fee award in the trial court are procedural, so the federal rule allowing award of fees by the reviewing court prevails.

ATOM Instrument Corporation, et al v. Petroleum Analyzer

Fifth Circuit: Green Valley Special Util Dist v. Donna Nelson, et al.

Dismissal with prejudice of a erroneous claim that an earlier decision of a regulatory body relied on a preempted state statute does not deprive the plaintiff of the right subsequently to assert the preemption of the statute as relied upon by another regulatory decision.

Dispute as to two of the parties is now moot, given private settlement of claims, and subsequent procedural steps and the possibility that an allegedly preempted statute might be relied upon in the future is insufficient to preserve a live case or controversy between the parties.

While the voiding of a past agency order is not obtainable under the Ex Parte Young exception to state sovereignty, subsequent enforcement actions in furtherance of such an order do state a claim.

As the suit is seeking a remedy in equity, the non-jurisdictional bar against S1983 claims against political subdivisions does not deprive the court of jurisdiction.

Statutory requirement of utility capability implies an inquiry into nearby infrastructure.

CJ, et al., Concur/Dissent: 

Federal statute defining utility service area applies to the degree that federal funds were used to construct the infrastructure.

Concur/Concur with Concur/Dissent:

Fact-bound decision on remand.

Concur:

Where a state law statute creating a private cause of action is preempted, the c/a can arise in equity, and where the claim presents a substantial question of federal law, there is federal jurisdiction.

Concur:

Although, by Bivvens analogy, S1983's exclusion of political subdivisions should extinguish a correlative implied cause of action in equity arising under Ex Parte Young, precedent sufficiently recognizes the validity of an equitable suit for prospective relief against state officials' actions that violate the federal constitution.

Green Valley Special Util Dist v. Donna Nelson, et

Fifth Circuit: Courtney Morgan v. Scott Freshour, et al

Execution of administrative warrant under the auspices of the state medical board and the subsequent preparation of a report is  entitled to the qualified immunity of law enforcement, not the absolute immunity of a prosecutor.

Claims of malicious prosecution and abuse of process are inherently tort claims, not constitutional violations, and do not sound in S1983 actions -- any underlying constitutional violation must be raised according to its own terms.

Remand for the district court to consider whether underlying plausible 4A claims were waived by the plaintiff's initial tort-based filing under notice pleading.

Courtney Morgan v. Scott Freshour, et al

Fifth Circuit: SA v. Noel Jones

 

Sufficient basis for plea to specific drug quantities, given duration of daily drug sales; sufficient basis for conspiracy plea as to buyer/seller relationship where the relationship goes on for long enough and sufficient mutual trust is established.

Court's instructions at plea colloquy did not rise to the level of plain error.

Ineffective assistance waived for not being raised below, preserved for collateral challenge.

SA v. Noel Jones

Fourth Circuit: Diana Mey v. DIRECTV, LLC

 Subsidiary user on a cell phone plan is bound by arbitration agreement referenced in electronic signature at time that the subsidiary purchased the extended service.

Contra proferentum notwithstanding, the arbitration agreement's incorporation of successors and assigns and the inherently durational nature of the contract mean that after-acquired subsidiaries are parties to the arbitration agreement.

Present dispute is within the scope of the arbitration agreement, given the statutory presumption for arbitration and the terms of the agreement compelling arbitration of all disputes and claims between the parties.

Diana Mey v. DIRECTV, LLC 

Second Circuit: Sprague v. Salisbury Bank & Tr. Co.

 

Consumer's right of action under the credit reporting statute arises through notification of the reporting agency, so a consumer's direct notification of a bank of an error in the report does not suffice to state a claim arising from the bank's statutory duty not to provide inaccurate information.

Sprague v. Salisbury Bank & Tr. Co.

Second Circuit: Osen LLC v. United States Central Command

Prior military FOIA disclosures about specific incidents did not generically waive withholding about similar incidents; the waiver doctrine requires that the waiving disclosure be identical in both specificity and matter, and different incidents are inherently different matters.

Although the military cannot, under a mosaic theory,  withhold disclosures of large amounts of data, but the disclosure is justified where the military contends that each element of the mosaic (each disclosure) might provide information about critical vulnerabilities.

Osen LLC v. United States Central Command

First Circuit: Common Cause Rhode Island v. RI Republic Party

As the state's attestation requirements for mailed-in votes is only imposed in a few states, and the state has not advanced any interest behind it, lower court's entry of consent judgement abrogating the requirement should not be stayed.  The elevated standard for stays close to an election is met, as the last election didn't have the requirement, and the state hasn't suggested that it would confuse voters.  Political party has standing to intervene for the purposes of the pending appeal.

Common Cause Rhode Island v. RI Republic Party

First Circuit: T-Mobile Northeast LLC v. The Town of Barnstable

 

"...a salmagundi of affirmative defenses."

Grounds for denial of intervention of right (or, in the alternative, permissive) did not have to be extensively described by the court -- the decision is reviewed for abuse of discretion in light of the record.

No abuse of discretion of denial of intervention of right by citizens attempting to stop cell-phone tower on church steeple where it is apparent that the existing parties will attempt to vindicate the specific statutory protections that the citizens intended to raise; the litigation strategy of the existing parties doesn't enter into the calculus.

No abuse of discretion in denial of permissive intervention, as existing parties would raise the smae issues, the putative intervenors had no cause of action under state law, and it's really important to build cell phone towers quickly.

 T-Mobile Northeast LLC v. The Town of Barnstable

Brief hiatus

Good to get back into the batting cage for a few days after finishing the dissertation.  As there are some other matters arising in the coming week, this will be, at minimum, the last update of the week.  Cheers.

-CB

Eleventh Circuit: Leon Carmichael, Sr. v. USA

Petitioner suffered no prejudice from ineffective assistance of counsel in handling a 10 year plea deal as opposed to the 40 years eventually imposed, since there was no guarantee that the deft would accept, given his desire for a firm offer, and the terms of "super cooperation" were vague enough that the parameters of deft's obligations were unclear, and the expectations of the govt could not be defined before entering into the material cooperation and determining the capacity of the deft to assist.  

Sufficient evidence in record that deft might not have accepted the offer of 20 years; consultations  with counsel were after the fact.  General post-trial and totality claims similarly insufficiently supported.

Leon Carmichael, Sr. v. USA

Tenth Circuit: Frappied v. Affinity Gaming Black Hawk

Mixed claims sounding in both gender and age are cognizable under Title VII.

Clam sufficiently states the age and gender claim by reciting the gender of the plaintiffs and that they are older than 40.

~96% chance of firings being non-random across age and gender suffices to create a plausible inference of discrimination.

Even given the statistical possibility of discrimination, no facts raising an inference of discrimination on the basis of gender were pleaded, so the non-random employment actions are susceptible of other explanations.

Given statistical analysis of terminations and the demographics of the new employees hired, the suit states a claim for disparate impact under the ADEA.

Median ages of terminated and new employees suffice to state a claim for disparate treatment under the ADEA, but employer met the burden of producing a nondiscriminatory basis.  Sufficient issue for trial on whether these post-hoc rationales were pretextual.

Frappied v. Affinity Gaming Black Hawk

Tenth Circuit: Zahourek Systems v. Balanced Body University

There is a genuine dispute for trial as to whether the anatomical model is a useful article under the copyright law, since the question is not the tactile uses to which it might be put in an educational context, but rather whether its usefulness arises from the fact that it correctly depicts the human frame.

Zahourek Systems v. Balanced Body University

Ninth Circuit: Gonzalo Dominguez v. William Barr

State drug statute criminalizing manufacture and delivery is divisible, as the two are different elements, not different means.

Under modified categorical review, the statute is a valid predicates, since the state's inclusion of "conversion" in the definition of drug manufacture overlaps the federal definition of "production."

Board's adjudication took sufficient consideration of the particulars of the case.

Issue of defective notice, promptly remedies, was not jurisdictional.

Gonzalo Dominguez v. William Barr

Ninth Circuit: Linda Larson v. Andrew Saul

Skidmore deference to agency determination that military employment in the civilian sector is not within a SSA exception for wages earned wholly through military service.  Circuit split flagged.

Linda Larson v. Andrew Saul

Ninth Circuit: Michael Peirce v. Douglas Ducey

State citizen has insufficient concrete or personal harm to challenge state constitutional reallocation of assets held in trust by the state, claiming that the constitutional amendments violate the terms of the trust as defined in the federal enabling legislation.

The voluntary cessation to mootness would not apply in such a case if Congress were to ratify the change, since the alleged transgressor is the state, not the federal government.

Although there is insufficient basis for a private right of action under the federal statute, the bar is not necessarily a jurisdictional one.

Michael Peirce v. Douglas Ducey

Ninth Circuit: Skyline Wesleyan Church v. Ca. Dept. of Managed Health Care

Amended Op.

Skyline Wesleyan Church v. Ca. Dept. of Managed Health Care

Seventh Circuit: Dawn Hanson v. Chris LeVan

Allegations of politically motivated dismissal state a claim where bias is credibly alleged, and according to statute and practice, the position involved access to neither policymaking deliberations nor the politically sensitive work of the elected official.

To state a claim of a clearly established right, there is an important distinction between a murky area of the law and a well-developed but complex area of the law -- the latter allows an easier inference at the pleading stage.

Dawn Hanson v. Chris LeVan