DC Circuit: Blogger: ANR Storage Company v. FERC

Where two companies appear to have virtually identical shares in their relevant markets, it is an abuse of discretion for an agency to allow only one of the two to charge market rates without stating a reasonable justification for the distinction.

https://www.cadc.uscourts.gov/internet/opinions.nsf/9E0C54378AB5C5A18525830F004E9C61/$file/16-1285-1751902.pdf
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Eleventh Circuit: USA v. Jason Alexander Phifer

When a deft faces criminal or civil penalties, deference to an agency's interpretations of its own regulations is inapposite, as an agency has an obligation to clearly state the rule.

http://media.ca11.uscourts.gov/opinions/pub/files/201710397.pdf


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Tenth Circuit: Anderson Living Trust v. WPX Energy Production

Denial of class certification does not merge into a stipulated settlement for the purposes of appellate jurisdiction over a challenge to the denial of class certification as an element of the final judgement.

https://www.ca10.uscourts.gov/opinions/17/17-2029.pdf
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Ninth Circuit: Tin Cup LLC v. Corps of Engineers

Where a statutory directive occurs within an appropriations bill, the presumption is that it binds only for the period of the appropriation; this can be overcome by sufficient indications of futurity such as "hereafter."  Language in the imperative such as "will" and "shall" is insufficient.

Concur in J: In addition to the command in the imperative, the directive had a closing point, which meant that it wouldn't automatically sunset.





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Eighth Circuit: Deaton Oil Company, LLC v. United States

A claim that an agent did not pay taxes and make payments does not state a claim as a defense to nonpayment unless the nonperformance incapacitated the principal in that respect -- a high bar.

http://media.ca8.uscourts.gov/opndir/18/09/172326P.pdf
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Seventh Circuit: Kevin Czech v. Michael Melvin

Instructing the jury on Felony Murder theory of First Degree Murder arising from the use of the firearm, whether or not there was an independent felonious purpose to the use of the firearm, was an error of state law.  Precedent holds that this should be examined for harmless error, seemingly establishing a Due Process violation by implication, but one not clearly established for the purposes of Habeas petitions.  Here, though, the error of stare law was harmless, as the verdict would have been the same.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-21/C:17-1838:J:Griesbach:aut:T:fnOp:N:2222884:S:0

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Sixth Circuit: Ahmad Issa v. Margaret Bradshaw

When considering hearsay statements by a co-defendant that tend to implicate another defendant, the critical aspect that determines whether the truth of the matter asserted can be admitted despite the Confrontation Clause is not the indicia of reliability from some preconceived litmus such as the testimonial form of the statement, but rather the totality of the circumstances.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0212p-06.pdf
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Third Circuit: USA v. Keonna Thomas

Portions of plea hearing under seal in trial record are appropriately withheld given a sufficient showing of probable harm.  Although the First Amendment applies to records of plea proceedings, here the court provided sufficient specific reasoning under seal, considered alternatives, and labeled the sealed sections.  The common-law right of access is countered when it is the type of information that courts would normally protect, and there was sufficient risk of a clearly defined and serious injury.

http://www2.ca3.uscourts.gov/opinarch/172644p.pdf
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Third Circuit: Troy Reese v. Warden Philadelphia FDC

The Bail Reform Act system for contesting pretrial detention is the sole remedy for challenging federal pretrial detention; although Habeas theoretically runs, the prudential limits on the writ require the courts to deny any requests for relief not channeled through the Bail Reform Act processes.

http://www2.ca3.uscourts.gov/opinarch/181749p.pdf


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4th Circuit

New decisions haven't been appearing for several days on the 4th's site, and they appear to be replacing their web team.   Biglaw salmon-shirted minions, solos in Dinwiddie and other budding aristos are likely getting everything through PACER and the gossip down on Cary Street, but the People's Website will wait for the public feed to open up.  Unless, you know, we get bored or something. 

-CB
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    Other cases:

    (Serious brain-cloud setting in here -- punting the balance.)

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0210p-06.pdf

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0211p-06.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/161467P.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/16-56546.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/16-36072.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/14-56834.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/13-10637.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2691.Opinion.9-20-2018.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2256.Errata.9-20-2018.1.pdf


    -CB

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    Sixth Circuit: United States v. Erik McCoy

    The facts that the deft was regularly selling drugs, and that he was apprehended in possession of a large amount of drugs while at work provided sufficient explanation in the warrant's affidavit for a search of the apartment that he shared with another employee to be permissible under the good faith exception.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0209p-06.pdf

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    Third Circuit: In Re Hertz Global Holdings Inc.

    Executive resignations, poor results, cavalier tone, and insider trading during the turmoil raise an inference of scienter, but not a strong one, and therefore do not state a claim.

    http://www2.ca3.uscourts.gov/opinarch/172200p.pdf
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    Third Circuit: Carol Walker v. Brian Coffey

    Production of work emails by a public university in response to a facially infirm subpoena did not violate a clearly established constitutional right, as there was no legitimate expectation of privacy in emails which an employer could freely disclose.  Dismissal without prejudice to allow a refiling for statutory claims.

    http://www2.ca3.uscourts.gov/opinarch/172172p.pdf
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    Second Circuit: United States v. Lobo

    Witness assertion, when credited, suffices to establish that drugs made it to US markets.

    Aggravating role sentence increase upheld.

    "http://www.ca2.uscourts.gov/decisions/isysquery/1aad3dd4-e94a-4e4b-a3b1-6cd4b00c0df9/1/doc/17-2894_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1aad3dd4-e94a-4e4b-a3b1-6cd4b00c0df9/1/hilite/
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    First Circuit: US v. Vallellanes-Rosa

    As the court was not compelled to vary downward for the federal carjacking count, the sentence was substantively reasonable; as the relevant factors were mentioned during the sentencing, the sentence was procedurally reasonable.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1541P-01A.pdf
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    Other precedential cases from today

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0208p-06.pdf

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-19/C:17-1080:J:Sykes:aut:T:fnOp:N:2220907:S:0

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/14-71768.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/12-55911.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/16-73801.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201713611.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1101.Opinion.9-19-2018.pdf

    -CB
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    Sixth Circuit: Jesse Busk v. Integrity Staffing Solutions

    Door to door utility canvassers are subject to the travelling salesman exception to the statute, since although the utility has the final power to ratify the sale or not , gaining the consent of the customer is the work of the salesman.

    Although the portal-to-portal act puts some security screening time outside the Labor act's compensation mechanism, state law might cover the claim, since state law does not mimic the exception, and work need not involve exertion.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0207p-06.pdf
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    Second Circuit: Kevin Flood, et al. v. Just Energy Marketing Group, et al.

    To qualify for the Travelling Salesman exception to the Act, the  work of the employee must be closing sales.   The fact that the company could ultimately decline to ratify the deal and proceed with the transaction is irrelevant to this consideration, as the salesman's task is to get the customer's consent to the transaction.

    Court did not err or abuse discretion in refusing offensive collateral estoppel against the insurer for litigating the opposite view in another form, as the two contract interpretations are not precisely identical, and not all claims have yet been litigated to their conclusion. 

    http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/3/doc/17-546_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/3/hilite/                                                                                  
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    Second Circuit: Munoz-Gonzalez, et al. v. D.L.C. Limousine Serv.

    From the plain meaning of the statute, black cars are taxis.

     http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/2/doc/17-2438_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/2/hilite/
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