The Circuit Barrister

Eleventh Circuit: Ace Patterson v. Secretary, Florida Department of Corrections

Habeas, AEDPA

Partial vacatur of sentence without formal resentencing resets the AEDPA clock, and subsequent collateral attacks are therefore not second/successive. Circuit split flagged relative to precedent.

Concurrence: Yep.

Dissent: Nope.

http://media.ca11.uscourts.gov/opinions/pub/files/201212653.pdf

Seventh Circuit: Michael Belleau v. Edward Wall

Release conditions - electronic monitoring

No Fourth Amendment violation for warrantless perpetual electronic monitoring, given the incremental loss of privacy and substantial social benefits.

Electronic monitoring isn't Ex post facto, as it's not a punishment.

Concurrence in J: Reasonable special needs search, but if tech was more ubiquitous, possibly a different calculus. Not punitive in purpose or effect.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:15-3225:J:Flaum:con:T:fnOp:N:1694901:S:0

Seventh Circuit: Stark Excavating, Incorporated v. Thomas Perez

Administrative

Although the ALJ was uniquely qualified to make credibility determinations on willfulness, the reviewing Commission's reversal was supported by substantial evidence, as the ALJ's finding was susceptible of multiple interpretations.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:14-3809:J:Rovner:aut:T:fnOp:N:1694913:S:0

Fifth Circuit: Jay Barrash v. Amer Assn of Neurl Surgns Inc.

Torts

Although the professional association did not provide the member under censure with sufficient due process under the rules of the organization, there was no inherent due process violation, as the member had sufficient advance notice of the materials in dispute.

As the association could have revoked the censure in full after the partial judicial rescission, there is no due process violation in the partial judicial rescission of the censure.

Under state law- judicial non-intervention bars relief for palintiff under contract theory in an alleged violation of bylaws.

http://www.ca5.uscourts.gov/opinions/pub/14/14-20764-CV0.pdf

Second Circuit: United States v. Pruitt

Sentencing

No plain error in within-guidelines sentence issued without explanation, as the sentencing judge adopted the findings of the PSR, which contains the justifications for the sentence.

Checkbox on sentencing form imposing a within-guidelines sentence risks legal error. Explicit request to Congress that it amend it.

http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/doc/14-1921_opn_and_attachment.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/hilite/

Second Circuit: Victory v. Pataki et al.

S1983 Due Process - Parole

Prison inmate with a parole release date has a cognizable liberty interest.

As challenge to tribunal's decision was only possible by contradicting prior unsworn testimony of its members, there was no impartial decisionmaker at the point of parole rescission.

Absolute immunity for quasijudicial officers of parole board does not extend to fabrication of evidence before the initiation of proceedings.

Genuine issues of material fact on merits - remand.

http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/doc/13-3592_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/hilite/

Federal Circuit: AVID TECHNOLOGY, INC. v. HARMONIC, INC.

Patent

Claim construction drawn from patent prosecution history and given as part of jury charge was not a clear and unambiguous disavowal of claim scope.

Or something like that.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1246.Opinion.1-27-2016.1.PDF

Federal Circuit: AKZO NOBEL COATINGS, INC. v. DOW CHEMICAL COMPANY

Patent

Correct construction of "collection" as place where things accumulate, no literal or equivalent infringement.

Decision not rewritten to match law.

[Again, we don't know many things, but we especially don't know Patent.]

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1331.Opinion.1-27-2016.1.PDF

DC Circuit: Rosalie Simon v. Republic of Hungary

International law

(Srinivasan)

WWII treaty not a categorical bar to claims against Hungarian government, railroad under FSIA, as the treaty does not claim to be an exlusive remedy -- the Allied nations could not waive the rights of non-nationals.

Takings of property incident to the deportations are themselves genocide, and state a claim within the expropriation exception to the FSIA.

Plausible inference of commercial activity, as the funds were later commingled, but insufficient proof in pleadings of US nexus for Hungarian government activities.

Genocidal takings have no internal exhaustion requirements, as insufficient compensation is not the underlying harm.

Comity an open question.

Justiciable Article III claims. (Citing Zivitofsky)

Concurrence: Hungary's implementation of treaty insufficient to bar FSIA claim.

https://www.cadc.uscourts.gov/internet/opinions.nsf/0CE6088155B448E285257F490054E55A/$file/14-7082-1596075.pdf

DC Circuit: In re: Idaho Conservation League, et al.

Administrative, environment

Plaintiff has standing, as he lives near a mine, and regulations would incentivize reduced emissions and mean quicker cleanups.

Other plaintiffs have standing due to living near rivers.

Putative intervenors do no have Article III standing, as the order merely sets a date for rulemaking, and there is no showing that notice and comment would be insufficient. No statutory standing, as there's no impairment of interests.

Putative intervenors' arguments construed as amici, rejected.

https://www.cadc.uscourts.gov/internet/opinions.nsf/1F012EA1238D7A3C85257F490054E52E/$file/14-1149-1596081.pdf

Order here:

https://www.cadc.uscourts.gov/internet/opinions.nsf/735DB53755E54B5085257F490054E579/$file/14-1149-1596091.pdf

Ninth Circuit: MICHAEL NOZZI V. HACLA

Amended opinion, denial of en banc.

https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/13-56223.pdf

Ninth Circuit: YUN LIAO V. MAURICE JUNIOUS

Habeas, Ineffective Assistance

Habeas for ineffective assistance based on defense counsel's acceptance of late-night, telephoned denial of permission for medical study, information that later proved to be incorrect. State habeas finding of lack of prejudice objectively unreasonable given centrality of issue.

https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/29/14-55897.pdf

Eighth Circuit: James Saylor v. Randy Kohl, M.D

S1983, Prisons

Qualified immunity for physicians treating inmate with PTSD, given lack of deliberate indifference.

No 1A, 14A retaliation claims based on ending of medication and transfer, as there were legitimate nondiscriminatory reasons for both.

Dissent: Genuine dispute.

http://media.ca8.uscourts.gov/opndir/16/01/143889P.pdf

Eighth Circuit: Sriram Rajasekaran v. Mark Hazuda

Administrative, Immigration

No subject matter jurisdiction over challenge to the level of detail in the agency's notice, as it is fundamentally a statutory procedural rule designed to instruct the agency.

Petitioner not eligible for portability.

http://media.ca8.uscourts.gov/opndir/16/01/143623P.pdf

Eighth Circuit: Theodore Ingram v. Terminal Railroad Association

ERISA

Where additional evidence is admitted during the proceedings, a court can retain the abuse of discretion standard by making its decision from the administrative record.

Administrator's characterization of relocation expenses was reasonable.

District court did not abuse discretion in finding that Administrator's offset of prior plan's benefits for full vesting -as opposed to the actual early retirement payments - was reasonable.

http://media.ca8.uscourts.gov/opndir/16/01/143589P.pdf