Seventh Circuit: USA v. Dennis Franklin

An only-apparently arcane and metaphysical question certified to Wisconsin's highest state court asking whether a certain offense is divisible, i.e., whether the jury must unanimously agree on the section of the law that was violated.  Bonus: thorough and courteous explanation of ACCA.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-17/C:16-1872:J:PerCuriam:aut:T:opGr:N:2188135:S:0

Sixth Circuit: United States v. Ramess Nakhleh

The loud and unusual noises in a post office that are prohibited by law are determined by the usual decorum and operation of the post office, as opposed to what might be loud or unusual for the person; sufficient evidence that the deft was loud and unusual; no plain error in refusal to consider an audio recording where that recording only covers part of the incident in question.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0143p-06.pdf

Sixth Circuit: Tyganda Gilmore v. David Ebbert

A prisoner seeking habeas relief from an unlawful detainer must seek habeas against the jurisdiction holding the detainer against his or her future release, not the jurisdiction of present incarceration.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0142p-06.pdf

Sixth Circuit: United States v. Malik Farrad

Sufficient evidence for the finder of fact to have determined that the gentleman in the Facebook photos with the gun was the deft.

Social media photos are not self-authenticating business records, but there is no need for the identity of the page to be established -- the identity of the subject of the photo is a matter for the finder of fact, and are admissible so long as there is sufficient evidence that they are what they appear to be.

Shaky qualifications for expert testimony on Facebook photo-posting habits of suspects ultimately harmless.

Predicate offenses properly counted for sentencing where each is defined as happening on or about a certain day, despite being connected by a common conspiracy.

No plain error in counting convictions in absentia as predicate convictions.

Sentence increase due to predicate offenses didn't need to be separately charged.

Warrant not defective when it identifies the Facebook data as present in the jurisdiction.

Year and a half delay after service of warrant on FB didn't invalidate the warrant.

Execution of warrant outside of district not plain error, cf. 2703(A). 

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0141p-06.pdf

Sixth Circuit: Heidi Hostettler v. College of Wooster

There is an issue for trial when a plaintiff claiming disability or gender discrimination claims that she can perform all required work within a shorter amount of time; absent a showing to the contrary, the task is not necessarily defined by the number of hours required.

Employer can be estopped from claiming that the amount of leave taken exceeds that protected by the Act when the employee relies to her detriment on an assertion to the contrary, presenting an issue for trial.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0140p-06.pdf

Fifth Circuit: Robert Furlough v. Lowell Cage

Amended opinion after motion for panel rehearing.

http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV1.pdf

Fifth Circuit: Patrick Collins, et al v. Steven Mnuchin, Secretary

Minority shareholders have standing to challenge the structure of the federal agency empowered to wind-down or place in conservatorship financial institutions when those voting shareholders lose economic rights due to the agency's policies.

The single-director structure of the agency, combined with the lack of a bipartisanship requirement and a funding procedure outside normal appropriations, unconstitutionally insulates the agency from Presidential control, as the President is unable to ensure the execution of the laws.

Most prudent remedy is the removal of the requirement that removal of the agency head only be for cause.

Dissent: Executive has a voice, Congress has oversight hearings.

Dissent (@judgewillett)   Valid delegation of Congressional power; obligations legally imposed on a conservator are the best protection for the economic rights of the shareholders

http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV0.pdf

Fifth Circuit: USA v. Christian Winchel

Appeals waiver did not bar appeal of restitution, as restitution in excess of proximately caused harms exceeds the statutory maximum punishment.  Sentencing court must establish statutory proximate causation for losses before imposing restitution, else, plain error.

http://www.ca5.uscourts.gov/opinions/pub/16/16-11208-CR0.pdf

Third Circuit: USA ex rel. Donald Palmer v. C&D Technologies Inc

District court did not err in reducing fee award below the level requested by another party; as it was opposed, the court did not act sua sponte, and courts frequently award fees according to prevailing rates as established by extrinsic evidence.

No abuse in limiting fees for deposition, given the interest in reducing the crowds of lawyers there.

Remanded for the District court to consider whether the Relator is owed fees for the present action for fees.

http://www2.ca3.uscourts.gov/opinarch/172350p.pdf

Ninth Circuit: Dutta v. State Farm

Plaintiff does not have a sufficiently concrete injury from the violation of the statute, since the declaration included in the Summary Judgment reply brief established that the violations were ultimately harmless, and plaintiff did not object or request a sur-reply.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-17216.pdf

Ninth Circuit: Barnes v. Berryhill

Although the SSA ALJ correctly determined that no finding of disability was compelled, the possibility of non-disablility required subsequent findings of transferrable skills prior to a finding of ability to work.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-35815.pdf

Ninth Circuit: Steven Morales v. USA

The government mapper's decision to omit the suspended cable from the map was sufficiently site-specific and informed by policy considerations to fall within the discretionary exception to the Act's waver of sovereign immunity; there is no exception to this exception in matters of public safety.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/17-15215.pdf

Eighth Circuit: David Coyne v. Messerli & Kramer P.A.

An unsophisticated party states a claim under the Act by alleging that a letter sent to collect a debt, on its face, includes amounts that are not authorized by state law.

http://media.ca8.uscourts.gov/opndir/18/07/172826P.pdf

Eighth Circuit: Jonathan Scarborough v. Federated Mutual Insurance Co.

Per curiam vacate and remand for a case decided after the relevant statutory amendment but before the court decision expounding it. 

http://media.ca8.uscourts.gov/opndir/18/07/172409P.pdf

Eighth Circuit: Bussen Quarries v. Alexander Acosta

ALJ did not have sufficient substantial evidence that the regulation was violated; the enforcer of the rule has the burden of proof, and while every violation need not be personally witnessed, a violation can't rest on speculation and conjecture where there are several possible scenarios.

http://media.ca8.uscourts.gov/opndir/18/07/172281P.pdf

Eighth Circuit: United States v. Allen Gaines

Under modified categorical review, state statute prohibiting harmful or offensive contact is a valid predicate crime of violence.

Second sentence procedurally reasonable, as speculative interpretations of the guidelines need not be addressed; also substantively reasonable.

http://media.ca8.uscourts.gov/opndir/18/07/171274P.pdf

Seventh Circuit: Pension Trust Fund v. Kohl's Corporation

Amended opinion.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-16/C:17-2697:J:Wood:aut:T:aOp:N:2186997:S:0

Seventh Circuit: Arjun Dhakal v. Jefferson Sessions III

Although there is no jurisdictional bar to general federal jurisdiction over an initial denial of asylum, the administrative record has not yet been sufficiently developed by the exhaustion of administrative remedies that would result from challenging a subsequent enforcement of the decision, so jurisdiction is not yet proper under the APA.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:17-3377:J:Ripple:aut:T:fnOp:N:2185998:S:0

Seventh Circuit: Karum Latin America S. de R.L. v. Lowe's Companies, Incorporated

Court did not abuse its discretion in striking expert testimony that had been disclosed as factual testimony, despite the fact that the sanction proved dispositive.

Other claims waived, harmless.  Loss from financial instruments subsequent to the plaintiff's withdrawal was correctly categorized as a permissive counterclaim, as the losses did not yet exist at the time of filing.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:18-1074:J:Bauer:aut:T:fnOp:N:2186752:S:0

Sixth Circuit: Terry Martin v. Behr Dayton Thermal Prods.

As requiring a preliminary determination of predominance would unduly narrow the remedy, courts can determine specific issues for a class action without requiring that those issues must predominate within a putative individual action.  Here, the issue classes predominate and are best addressed as a class.  Circuit split flagged.

Any Seventh Amendment harms from the Special Master process are presently speculative.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0139p-06.pdf