Should have been able to get through all of these. Citius, altius, etc. Brain-cloud, perhaps.
http://media.ca8.uscourts.gov/opndir/18/09/173242P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/163891P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172012P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/17-35355.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/16-35431.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/13-56061.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201714677.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201315258.pdf
-CB
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Seventh Circuit: USA v. Daniel Stewart
No plain error in prolongation of traffic stop, given the minimal length of traffic stop. Sufficient evidence for money laundering, given illicit source of funds.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-05/C:16-4105:J:Rovner:aut:T:fnOp:N:2212702:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-05/C:16-4105:J:Rovner:aut:T:fnOp:N:2212702:S:0
Sixth Circuit: Brittany Harris v. Kimberly Klare
Denial of qualified immunity as a matter of law for officer's search of minor during traffic stop, as there is a question of whether the officer knew that there were minimal grounds for suspicion and that a dog search had turned up nothing; denial of qualified immunity as a matter of law for consensual search, as minor plaintiff was hancuffed, surrounded by police, had been stopped for an hour, and the search was apparently a precondition to using the restroom.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0198p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0198p-06.pdf
Third Circuit: Damien Preston v. Superintendent Graterford SCI
Although counsel in the initial state collateral challenge was ineffective, excusing the waiver of the claim due to its omission, the underlying claim of ineffective assistance at trial due to the Confrontation Clause violation did not prejudice the petitioner, given the cumulative evidence of guilt.
http://www2.ca3.uscourts.gov/opinarch/163095p.pdf
http://www2.ca3.uscourts.gov/opinarch/163095p.pdf
Third Circuit: Township of Bordentown v. FERC
Issuance of a permit conditioned on obtaining of second state permit did not offend the Act, as the conditional permit did not allow any discharges into the waters of the United States.
As each project is viable without the other, agency was not arbitrary or capricious in considering them separately.
Deference to agency determination that nonjurisdictional utility project was not sufficiently connected to jurisdictional projects to warrant formal review.
Agency's determination of minimal impacts appropriately resolved claim of cumulative impacts.
etc, etc. ...
Original federal appellate jurisdiction for violations of the act does not displace state administrative remedies in the permitting process.
http://www2.ca3.uscourts.gov/opinarch/171047p.pdf
As each project is viable without the other, agency was not arbitrary or capricious in considering them separately.
Deference to agency determination that nonjurisdictional utility project was not sufficiently connected to jurisdictional projects to warrant formal review.
Agency's determination of minimal impacts appropriately resolved claim of cumulative impacts.
etc, etc. ...
Original federal appellate jurisdiction for violations of the act does not displace state administrative remedies in the permitting process.
http://www2.ca3.uscourts.gov/opinarch/171047p.pdf
Third Circuit: Carol Vorchheimer v. Philadelphian Owners Association
To state a claim for denial of necessary housing accommodation, plaintiff must establish the necessity of the accommodation beyond alternate solutions proposed by the landlord. Joint agency statement indicating that the tenant has a right to their suggested modification has little power to persuade, as it does not explicitly purport to interpret the statute.
http://www2.ca3.uscourts.gov/opinarch/171738p.pdf
http://www2.ca3.uscourts.gov/opinarch/171738p.pdf
Third Circuit: In re: Tribune Media Company
Bankruptcy Court had statutory jurisdiction to resolve discrimination claims against debtor as a matter of law, as plaintiff consented to jurisdiction, and the statutory carve-out that would usually move personal-injury tort claims to the District Court is not a jurisdictional provision.
Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns. Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.
As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.
Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.
Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.
Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.
http://www2.ca3.uscourts.gov/opinarch/172449p.pdf
Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns. Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.
As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.
Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.
Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.
Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.
http://www2.ca3.uscourts.gov/opinarch/172449p.pdf
Third Circuit: William Lee v. Sixth Mt Zion Baptist Church
Claims of minister whose contract with his church was terminated for cause due to lack of spiritual leadership do not present an issue for trial, as the question would impermissibly entangle the court in religious matters, and the church has a freestanding First Amendment right to select its ministers.
http://www2.ca3.uscourts.gov/opinarch/173086p.pdf
http://www2.ca3.uscourts.gov/opinarch/173086p.pdf
End of Day
Working much more slowly at these than before for some reason. This should have been a 100% coverage day. For the nonce, chalking it up to putting the task at the end of a long day. Or perhaps the Trollope over dinner. Reading rhythms.
More:
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0196p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0197p-06.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-04/C:17-2890:J:Sykes:aut:T:fnOp:N:2212102:S:0
http://media.ca8.uscourts.gov/opndir/18/09/171374P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/17-30084.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-50326.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-35684.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-15588.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/15-35845.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201512130.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C5C55E88E352419C852582FE004E7052/$file/16-5298.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C43C5F8C1F01517F852582FE004E4BCA/$file/17-1151.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2434.Opinion.9-4-2018.pdf
-CB
More:
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0196p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0197p-06.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-04/C:17-2890:J:Sykes:aut:T:fnOp:N:2212102:S:0
http://media.ca8.uscourts.gov/opndir/18/09/171374P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/17-30084.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-50326.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-35684.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/16-15588.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/15-35845.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201512130.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C5C55E88E352419C852582FE004E7052/$file/16-5298.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C43C5F8C1F01517F852582FE004E4BCA/$file/17-1151.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2434.Opinion.9-4-2018.pdf
-CB
Fifth Circuit: In Re: Alfred Bourgeois
Second or successive habeas petitions from prisoners in federal custody must meet the same statutory thresholds as do those from state prisoners.
http://www.ca5.uscourts.gov/opinions/pub/18/18-40270-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/18/18-40270-CV0.pdf
Fifth Circuit: Thomas Martone v. Walter Robb, III, et al
Plaintiff need not sell stock to establish loss causation for standing -- purchase at inflated price and holding at reduced value suffices for particular injury.
Where there was no alternative that would have avoided the fall in stock price, the allegedly harmful timing of the disclosure might have been a legitimate business decision. ANy hedging strategy would, as a matter of law, have required disclosure. Additionally, the board could no have been certain that the employee stock plan would be a net purchaser during the period under consideration.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50702-CV0.pdf
Where there was no alternative that would have avoided the fall in stock price, the allegedly harmful timing of the disclosure might have been a legitimate business decision. ANy hedging strategy would, as a matter of law, have required disclosure. Additionally, the board could no have been certain that the employee stock plan would be a net purchaser during the period under consideration.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50702-CV0.pdf
Fifth Circuit: Norman Bloom v. Aftermath Pub Adjusters, Inc., et
Absent state precedent to the contrary, in a federal forum, state procedural rules on tolling of claim are limited to the class of persons explicitly identified in the state precedent or statute. Federal forum cannot equitably modify, as it is a question of law.
http://www.ca5.uscourts.gov/opinions/pub/17/17-41087-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-41087-CV0.pdf
Third Circuit: Delaware Riverkeeper Network v. Sec PA Dept Env Protection
Given the strong presumption of administrative unreviewability until final administrative action, the statute's silence eon the question, combined with a jurisdictional grant over state actions create an inference of unreviwability until after final administrative decision.
As the agency decision takes effect prior to administrative appeal and the administrative appeal happens within an entirely separate proceeding, the agency decision is sufficiently final for statutory exclusive jurisdiction.
Rulemaking notice was sufficient; there is no requirement that notice requirements be set forth in a regulation; notice allowed interested parties to participate meaningfully in a process that was actually pending.
Agency approval conditioned on subsequent permit grant was not intrinsically arbitrary and capricious.
Whether or not a Takings Clause claim can arise under the statute, there is sufficient remedy in the existing appeals process.
Statute and APA allow court to consider pendent claims arising from the state constitution.
http://www2.ca3.uscourts.gov/opinarch/162211p.pdf
As the agency decision takes effect prior to administrative appeal and the administrative appeal happens within an entirely separate proceeding, the agency decision is sufficiently final for statutory exclusive jurisdiction.
Rulemaking notice was sufficient; there is no requirement that notice requirements be set forth in a regulation; notice allowed interested parties to participate meaningfully in a process that was actually pending.
Agency approval conditioned on subsequent permit grant was not intrinsically arbitrary and capricious.
Whether or not a Takings Clause claim can arise under the statute, there is sufficient remedy in the existing appeals process.
Statute and APA allow court to consider pendent claims arising from the state constitution.
http://www2.ca3.uscourts.gov/opinarch/162211p.pdf
Third Circuit: Marc Silver v. Omnicare Inc
Although the statute does not permit a relator to pursue a qui tam action where the fraud is public knowledge, where the relator uses privately available information to make sense of the public information and the public information, standing alone, would not reasonably or plausibly supported an inference of fraud under the heightened pleading requirements for the claim.
http://www2.ca3.uscourts.gov/opinarch/164418p.pdf
http://www2.ca3.uscourts.gov/opinarch/164418p.pdf
Third Circuit: Alex Taksir v. Vanguard Group
State action for breach of contract in reference to undisclosed transaction fees is not barred by the terms of the securities act, as the misrepresentation is not in connection to the sale of the security, and would not be material to the transaction. As the misrepresentation is outside of the act's scope, a fraud claim is similarly not forbidden.
Tenth Circuit: Grissom v. Carpenter
Trial counsel's arguments in mitigation phase at capital trial largely covered the ground that a closer examination of petitioner's undiagnosed brain damage would have led to, so state habeas ruling that representation was not constitutionally ineffective was not an unreasonable one.
Defense counsel's concession of the elements of the crime made instruction on lesser-included offenses redundant, and was apparently a legitimate strategic decision to focus the jury's attention on mitigation. As defendants cannot withdraw a defense, apparently stipulating to the elements shouldn't waive the instruction. Voluntary intoxication instruction was not prejudicial, given the high standard for relief under state law, and exists as a complete defense, not a mitigation. State habeas denial was therefore not unreasonable.
State habeas denial for cumulative error, presumably referencing ineffective assistance for the lack of lesser-included instruction and mitigation, was not unreasonable and contrary to law; de novo review of the total record in federal habeas can establish this.
https://www.ca10.uscourts.gov/opinions/16/16-6271.pdf
Defense counsel's concession of the elements of the crime made instruction on lesser-included offenses redundant, and was apparently a legitimate strategic decision to focus the jury's attention on mitigation. As defendants cannot withdraw a defense, apparently stipulating to the elements shouldn't waive the instruction. Voluntary intoxication instruction was not prejudicial, given the high standard for relief under state law, and exists as a complete defense, not a mitigation. State habeas denial was therefore not unreasonable.
State habeas denial for cumulative error, presumably referencing ineffective assistance for the lack of lesser-included instruction and mitigation, was not unreasonable and contrary to law; de novo review of the total record in federal habeas can establish this.
https://www.ca10.uscourts.gov/opinions/16/16-6271.pdf
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