Ninth Circuit: Flores-Rodruigez v. Garland

 

Alien facing deportation was not sufficiently put on notice that his past claim of having been born in the US was to be the main issue in the final heaing on the merits, on a motion to sua sponte reconsider the earlier determination of time, place and manner into the country.  When a person is charged with a crime or charged with allegations waranting removal from the country, that person is fairly entitled to notice of the claims against him and an opportunity to be heard in opposition.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-70177.pdf

Ninth Circuit: Perez v. USA

 

Alleged violation of a jus cogens norm doesn't waive federal soveriegn immunity for purposes of a claim under the Alien Tort Statute under a theory of extra-constitutional wrongdoing.

Equitable tolling not available for second cause of action, which under the law at time of filing would bar recovery under any other cause of action, since this judgment bar would prohibit subsequent recoveries, but did not address claims filed in the same suit, either one of which might have prevailed.

Extension of Bivvens unavailable, as an action against the agency head would be an inappropriate attempt to change government policy, and the claim against the agent who actually shot the Mexican citizen on the border fence has national security implications.

CONCURRENCE IN THE JUDGMENT AND PARTIAL CONCURRENCE

No need to reach sovereign immunity, as the elements of the ATS claim aren't met.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/17-56610.pdf

Ninth Circuit: Michael Sackett v. U.S. Environmental Protection Agency

 

Case was not made moot by agency's withdrawal of an enforcement order, where the underlying determination of jurisdiction remained,  since it was not absolutely clear that the agency would not seek to reinstate the order.

Although the government enjoys a presumption of good faith in voluntary cessation, it must demonstrate that its change is entrenched or permanent.

Court did not abuse its discretion in admitting memo postdating the relevant decision, since the memo summarizes the same information that the agency relied upon, rather than being a post hoc justification.

Under Supreme Court precedent, EPA jurisdiction over wetlands requires a significant nexus with navigable waters, rather than the freer standard set out by the plurality in that case, since the first standard is a logical subset of the plurality's rule.

Agency's conculsion that painiffs' wetlands have a sufficient nexus to navigable waters wasn't arbitrary, and was supported by the record.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-35469.pdf

Ninth Circuit: United States of America v. Steven Ray Prigan

 

As it criminalizes violence or the threat of violence against property as well as persons, Hobbs Act Robbery is categorically not a crime of violence under the sentencing guideleines.  Similarly, the generic crime of Robbery enumerated elsewhere in the guidelines is narrower than Hobbs Act Robbery, since federal Robbery requires imminent danger to the person; the generic crime of Extortion is also narrower, as caselaw requires threats to be directed against the person.

Not harmless error, as the court didn't explain a basis for variance that would account for the resulting variance.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/18-30238.pdf

Eighth Circuit: Louis Gareis v. 3M Company

 

Plaintiff suffered no prejudice from the exclusion of evidence of knowledge of risks and effective alternatives on the part of the device manufacturer, since none of the evidence excluded addressed causation, an element of the claim.

If the admission of expert testimony on operating room airflow was error, it was harmless, given the many other avenues established for the bacteria to have entered the wound.

As causation is an element of a lack of warning claim under state law, if the court erred in holding that the deft had actual or constructive knowledge, the error was harmless, since causation was never established.

http://media.ca8.uscourts.gov/opndir/21/08/183553P.pdf

Seventh Circuit: Robert Bless v. Cook County Sheriff's Office

 

Court did not abuse discretion in quashing deposition of city sherriff, since the sherriff was not personally involved in the employment matters at issue, and the plaintiff did not describe the admissible evidence that might result from the deposition beyond the existence of a conversation at a political event.

Employment action was too attenuated from the employer's gaining knowledge of political activity to support a claim for political retaliation, and the nondiscriminatory bases offered by the employer for the action were insufficiently rebutted..  Claim of racial dicrimination doesn;t present a genine issue of material fact for trial, since there were decisionmakers outside of the protected class and the nondiscriminatory reasons for the action were insufficiently rebutted.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-17/C:20-2733:J:Kanne:aut:T:fnOp:N:2748733:S:0

Seventh Circuit: Brian Hope v. Commissioner

 

Unequal treatment of a state's residents under the 14th Amendment right to domestic travel only occurs when a law expressly differentiates between residents based on their length or timing of residency.

Absent a violation of the right to travel, the equal protection claim should be assessed under rational basis review.

State's offender registration law is insufficiently punitive to base an ex post facto claim upon it; the stated purpose of the legislature was civil and regulatory.  In practice, it's sufficiently different from parole, as the status can't be revoked; its restraints and disabilities aren't sufficiently severe to make the law punitive;  residency restrictions do not serve punitive aims, and there is sufficient connection to nonpunitive purposes; and the law is not excessive in relation to its aims.

CONCURRENCE:

The registration law is permissibly retroactive; it imposes obligations beyond those prescribed at the time of the offense.

CONCURRENCE/DISSENT:

Requiring registration of residents who are subject to registration in their prior state of residence puts those residents on unequal terms with residents of their present state who are shielded from registration requirments by a decision of the state's supreme court holding the registration requirment to be sufficiently punitive to trigger ex post facto scrutiny.

A resident of the instant state who then travelled to another state where they were subject to registration requirements would then have to register in the instant state upon their return, burdening the travel right.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-16/C:19-2523:J:St__Eve:aut:T:fnOp:N:2748072:S:0

Seventh Circuit: Stanley Boim v. American Muslims for Palestine

 

A federal court has sufficient independent jurisdiction over a claim to enforce an earlier federal judgment against a putative alter ego of the original deft when jurisdiction over the putative alter ego would arise under the statute that conferred the jurisdiction over the original action.  The question of whether the second organization is in fact an alter ego of the first is a merits question, not a jurisdictional threshold.

The ERISA framework is not compulsory when assessing alter ego under the antiterrorism laws.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-16/C:20-3233:J:Scudder:aut:T:fnOp:N:2748362:S:0

Seventh Circuit: Ronald Schmucker v. Johnson Controls, Incorporated

 

Under the statute, a citizen suit claiming that an agency is not following regulations can't look at documents not having legal force to supply missing terms in the regulations and standards.

Court appropriately held that, given existing remediation, there was insufficient imminent and substantial endangerment to the town for the citizen suit to prevail under the statute.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-16/C:20-3432:J:Easterbrook:aut:T:fnOp:N:2748372:S:0

Sixth Circuit: Carl Ward v. Nat'l Patient Account Servs

 

Plaintiff does not have standing under the statute to challenge the lack of sufficient identification of the debt collector, which resulted in the sending of correspondence to the wrong company, since the error does not bear a close relationship to traditional harms, and confusion is insufficient concrete injury.

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0182p-06.pdf

Sixth Circuit: Sharon Potter v. Comm'r of Soc. Sec.

 

Denial of class certification that doesn't reach merits but instead is a case managment order associated with a stay pendng a related appeal doesn't end the tolling of statutes of limitation for absent class members, as their reliance on the class remedy and the representatives is still objectively reasonable.  

As the stay put the parties on notice of pending claims and continued reliance by absent class members was reasonable, the continued tolling serves the purpose of the statute of limitaitons and the economy of litigation.

Circuit split with Fourth flagged.

Once an uncertified class action is dismissed, tolling ceases.

Claim for equitable tolling forfeited for not being distinguished from tolling of right claim before the District Court.

https://www.opn.ca6.uscourts.gov/opinions/opinions.php

Fifth Circuit: Lindsey v. Bio-Medical Applications

 

As employer never made working on leave a condition of employment or threatened employee with adverse consequences, lack of assignment of the employees duties to another in the interim did not interfere with the exercise of the statutorily guaranteed leave.

The distinction between actual due dates and horatory due dates presents a genuine issue for trial on the claim of pretextual basis for retaliatory action.

State law whistleblower claim would require an actual violation of state law, not merely discusion of an illegal practice.

https://www.ca5.uscourts.gov/opinions/pub/20/20-30289-CV0.pdf

Third Circuit: USA v. Jeffrey Boyd

 

Typical errata.

https://www2.ca3.uscourts.gov/opinarch/192989po.pdf

Third Circuit: William Drummond v. Robinson Township

 

The Township's proposed regulations on the firearms practice ground trigger stricter scrutiny, since although restricting the areas for firearm practice dates to the Founding, the town's specific regulations on firearm type and nonprofit ownership of the club are novel, and merit closer scrutiny.

 As the regulations steer clear of the core of the Amendment, intermediate scrutiny applies.  The limitation on firearm type is only conjectural in its claim to reduce the intensity of practice, and the nonprofit ownership rule is similarly conjectural in its claim to reduce commercial intensity. As the Township bears the burden to establish the reasonableness of the remedy, the challenge to the regulations states a claim

https://www2.ca3.uscourts.gov/opinarch/201722p.pdf

First Circuit: US v. Patch

 

At 11: "The sockdolager here..." 

Deft can't be denied the safe harbor of the sentencing reduction for lack of participation by mere evidence of accompanying others on supply trips; mere presence at prohibited transactions is insufficient.

http://media.ca1.uscourts.gov/pdf.opinions/20-2063P-01A.pdf

First Circuit: US v. Carrasquillo-Sanchez

 

Contemporaneous objection to the length of the sentence imposed preserves only a claim of substantive error, not one of procedural error.

Plain procedural error in sentencing for the court to base an upward variance upon the conditions in the city of the offense without associating the particular circumstances of the deft within this context.

http://media.ca1.uscourts.gov/pdf.opinions/19-2151P-01A.pdf

First Circuit: US v. Garcia-Perez

 

Court adequately recited mitigations, but did not sufficiently explain its upward variance.  As the relevant conduct is explicitly included in the guidelines calculation, court needed to specifically distinguish the deft's situation.

Court did not abuse its discretion by imposing a substantively unreasonable sentence -- the deft has the burden to establish that the comparators who received disparate sentences were sufficiently similar.

http://media.ca1.uscourts.gov/pdf.opinions/19-2054P-01A.pdf

Almost made it back to DC

 

Three in the DC Circuit from Friday, but too much multitasking today.  Perhaps tomorrow.  Cheers.

CB

Eleventh Circuit: Ridgewood Health Care Center, Inc., et al v. National Labor Relations Board, et al

 

Board's decision that the rehiring interviews by the allegedly successor organization were unduly coercive was insufficiently reasoned, as the legal standard wasn't identified and the relevant factors weren't reviewed.  Where both the Board and the ALJ issue unsupported decisions, but the facts are apparent in the record, the issues can be addressed on appellate review.  As the questions were answered truthfully, there was no systematic attempt to inquire as to union membership, and no interviewee suggested coercion, the second employer did not unduly coerce during rehiring.  

Second employer's statement that they might have to close the facility if it were to become unionized wasn't in itself a threat, and it was insufficient to demonstrate animus relevant to the refussal to hire members of the union. (The statement was also too attenuated in time and after the fact.)

Anumus of a lower-level supervisor can't be attributed to the decisionmakers who declined to hire the union members.

Absent the discriminatory hiring claim, the second business wan't a successor organization, as a moajority of its employees were not former employees of the first business.

https://media.ca11.uscourts.gov/opinions/pub/files/201911615.pdf

Tenth Circuit: United States v. Rollins

 

Motion to amend the judgment mailed prior to the formal entry of judgment, and that challenged the judgment under rule 59(e) tolled the time for appeal, making the appeal filing here timely.

In considering whether a pleading states a claim of conspiracy under S1983, only the content of the amended complaint should be considered.

Notice sent to the town's mayor wasn't sufficient according to the terms of the state notice act; actual notice is insufficient under the act.

Requesting default judgment from the appellate court is insufficient to challenge a denial of default judgment below.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110560714.pdf