Ninth Circuit: Weston Family Partnership LLLP v. Twitter, Inc.

 Although the appeal was untimely since the district court had dismissed with leave to amend, the subsequent final order in the case cured the defect.

Absent earlier specific or unqualified statements about the ongoing project, the company had no duty to disclose the setbacks to investors.

Usual timeline between discovery of bug and disclosure of repair insufficient to establish that the company's statements on the matter were false.  Forward-looking statements would in any event be subject to the safe-harbor, as they were appropriately qualified.

Control-person liability is derivative of the claim against the company; these facts are insufficient to support such a claim.

Weston Family Partnership LLLP v. Twitter, Inc.

Sixth Circuit: Laborers' Int'l Union of N.A. v. Terease Neff

 The court whose employees have joined a union is a state, not county, entity for purposes of sovereign immunity, given its constitutional and statutory designation within the state.  The fact that the state has mandated that the county fund the operations of the court and that the county has discretion in setting the salary levels of the employees supports this, as the mandate is from the state.  As the elected state judge exercises ultimate authority in discharging and retaining employees and sets salaries in the first instance, the employment functions of the court are a state matter.  

The Contracts Clause is an insufficient basis for S1983 claims.  

A Takings Clause injunction would require that there was no remedy sounding in contract; mere breach of contract doesn't state a claim for damages under the Clause.  

CBA term in preamble holding that it remains in force until union is decertified or another agreement is reached insufficient to defeat as a matter of law a specific end date in the terms.

Laborers' Int'l Union of N.A. v. Terease Neff

Sixth Circuit: Frank Fisher v. Michelle Perron

Where a state intermediate appellate holding gives a statute a certain construction, the reading is determinative for a federal court attempting to ascertain the views of the state courts, absent persuasive data to the contrary.

State tort of disclosure of private information requires disclosures to be materially highly offensive.

Wiretap Act exemption to one-party consent requires that the interception or recording be for the purpose of committing a crime or tort; facts here insufficient to establish that.

Frank Fisher v. Michelle Perron

Fifth Circuit: Arnone v. County of Dallas

 A prosecutor elected within a county and acting within a county is, however, a state officer as opposed to a county officer when deciding questions of or setting policy relevant to the revocation of deferred adjudication in individual cases.  

Arnone v. County of Dallas

Fifth Circuit: Vitol v. USA

When a fuel is correctly categorized as taxable under the statute, it is ineligible also to be categorized as an alternative fuel, since the latter statute excludes fuels encompassed by the definition of taxable fuels.  The statutory scheme is clear enough to defeat a plain meaning argument to the contrary.  Any partial categorization of a blend as partially alternative would require a clear statement in the statute.

DISSENT:

The provision making the two categories mutually exclusive is in the excise tax portion of the Code, so the tax credit language in another area isn't bound by it, given plain meaning to the contrary.  The excise provisions define the wide swath of the tax categories, and the credit provisions define particular instances.  Ordinary meaning is the Star of Bethlehem.

Vitol v. USA

Fourth Circuit: US v. Lenair Moses

SUPPORTING DENIAL OF EN BANC:

 The question of whether a Supreme Court precedent has been overruled requires a clear statement from the Court.  

A panel decision validating the new standard isn't in irreconcilable conflict with a contemporaneous (yet subsequent) panel holding that the earlier (conflicting) precedent still controls to a degree.

DISSENTING FROM DENIAL OF EN BANC; VOTING FOR EN BANC:

First panel holding controls; this risks stoking confusion.

VOTING FOR EN BANC:

If the statements in the subsequent holding were dicta, the court would have said that clearly; public and Congressional confusion over the state of the circuit law on the question.

US v. Lenair Moses

Fourth Circuit: Evens Julmice v. Merrick Garland

 Silence of the immigration statute as to whether the citizen whose child is seeking to immigrate needs to be alive at the time of application isn't sufficient to justify deference to the agency's interpretation imposing the requirement.

Evens Julmice v. Merrick Garland

Second Circuit: Washington v. Napolitano

 

Police officers swearing to arrest warrant affidavit and effecting arrest were not performing functions closely tied to the judicial process in allegedly acting at the prosecutor's explicit instructions; a prosecutor providing testimony in support of a warrant would similarly not be shielded by absolute prosecutorial immunity.

Omission from affidavit testimony of factual details critical to the authorizing magistrate's assessment creates an issue for trial as to whether the totality of the omissions were material.

DISSENT: 

Arguable probable cause; officers' subjective belief in innocence would be immaterial.

Washington v. Napolitano

Second Circuit: JN Contemporary Art LLC v. Phillips Auctioneers LLC

 Force majeure clause could be invoked to cancel the contract; there was no obligation to reschedule or change the manner of performance.

The catch-all term of the force majeure clause justified the cancellation, even under strict construction; eusdem generis reading of the enumerated grounds implies that any societal disruption not due to fault or negligence and beyond the parties' control qualified.

Discretionary postponement of performance according to state advisory guidance was a de minimis breach, if at all, since by the time of scheduled performance, the state had issued compulsory guidance.

Absent explicit language of condition, courts can't look beyond integrated agreements to infer that one is conditional upon performance of the other.

Violation of the covenant of good faith and fair dealing doesn't state a claim where it is based on the same theory and facts as the breach claim.

JN Contemporary Art LLC v. Phillips Auctioneers LLC

The rest of the story

 

Tenth:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563811.pdf

DC:

https://www.cadc.uscourts.gov/internet/opinions.nsf/BC7CB0DD9CAE2B6285258734004E532E/$file/20-5032-1910440.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/6702971D442C34F285258734004E5347/$file/20-5079-1910446.pdf

Fed Circ

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-2344.OPINION.8-19-2021_1821952.pdf

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-2321.OPINION.8-18-2021_1821287.pdf

Tenth Circuit: Animal Legal Defense Fund, et al. v. Kelly, et al.

 

Since the Act prohibits making false statements in an attemp to gain consent to the control of property with the intent to damage the interests of the facility, its viewpoint discrimination requires strict scrutiny.

Not all attempts to damage the enterprise of an animal-processing facility are harms that would merit decreased First Amendment protections.

Under circuit precedent, the photographing of animals or taking notes about habitat is creating speech; the law's criminalization of this when done for the purpose of injuring the enterprise is similarly viewpoint discriminatory.  The state can't limit the scope of its prohiitions due to the favor or disfavor of the message.

The same holds for trespassing with the intent to harm the enterprise.  Although there is no right to trespass, false speech is an element of the offense through the requirement of effective consent.

DISSENT

Better remedy would be severence of deception from the intent requirement.

Regulating false statements of fact that cause harm is constitutional.

Right to choose who enters one's property is fundamental.

The law merely distinguishes harmful trespass from trespass without the intent to harm.

The actual speech here isn't implicated, but rather the intent behind the speech.

Private landowners generally have the right to restrict photography on their premises.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563866.pdf

Ninth Circuit: Ford v. Peery

 

DISSENT FROM DENIAL OF REHEARING EN BANC

Panel inappropriately hypothetically considered the law as misstated by the prosecutor under AEDPA deference, rather than considering the state court's judgment of the prejudice caused by the statement.

Dicta on questions that are germane to the case and resolved after reasoned determination in a published opinion are binding in the circuit.  This has proved problematic and some have said that it's in tension with Article III.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf

Ninth Circuit: Marroquin v. Garland

 

Given the identical punishments, the structure of the statute tends to suggest that the two proscribed acts are two means of committing the same offense, rather than two distinct offenses, and no caselaw or charging documents in the present case indicate a certainty to the contrary.  Intervening higher authority allows the present panel to overrule a circuit decision to the contrary that was based entirely on the statute's phasing in the disjunctive.  As the offense is more broad than the generic crime, the law is not a valid immigration predicate aggravated felony.

DISSENT:

Under the state's law, principals and accessories after the fact are mutually exclusive roles that inherently require different elements of proof.  Charging document establishes that petitioner was convicted as a principal.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-72922.pdf

Ninth Circuit: Stiudent A v. San Francisco Unified School District

 

Although the plaintiffs claim to be pursuing a systemic claim addressing widespread shortcomings, they aren't challenging a policy or practice of general applicability, but rather pointing out several instances in which the system didn't work correctly; administrative exhaustion is therefore required in order to develop the administrative record and give the state a chance to remedy the situation.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/20-15386.pdf

Ninth Circuit: Sura v. Garland

 

Evn absent evidence of their credibility, an Interpol Red Notice and a foreign arrest warrant for a serious nonpolitical crime can, in the light of concessions made by the petitioner, constitute serious reason to believe that the petitioner committed the crimes referenced, and therefore a basis for shifting the presumption when applying for cancellation of immigration removal.

 Even absent a formal adverse ccredibility decision, the suspicious timing of the petitioner's departure from El Salvador, and the IJ's determination of lack of specificity is sufficient evidence to establish that the petitioner did not prove by a preponderance that there wasn't serious reason to believe that he had committed the crimes.

Withholding of removal under the torture convention also sufficiently supported, given the unlikeliness of the foreign government's consent or acquiescence in any future torture.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-71839.pdf

Ninth Circuit: Herring Networks v. Maddow

 

As precedent compels that the state-law right to preemptive dismissal of spurious defamation claims be treated as a dismissal for not stating a claim if made on a matter of law and as a summary judgment if made on a fact-dependent determination, the court was powerless to look beyond the pleadings to the additional evidence provided by the non-movant when adjudicating it as a motion for preemptive dismissal on a matter of law.

A reasonable viewer would discern from the tenor of the show that the only fact being reported by the television host was the content of the news story being discussed, and that the rest was opinon and commentary.  By disclosing the specific factual basis of the statment, the host reveals the rest to be commentary and hyperbole.

No abuse of discretion in denying leave to amend, since it was never requested, and would have proved futile anyway.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-55579.pdf

Ninth Circuit: Allison v. Tinder

 (Rakoff of SDNY, J.)

 The court's assessment of the plaintiffs' case deprecated a holding in which the plaintiff class members were also putative members, and in which the holding favorable to their interests was law of the case, in which they would release their claims by the present settlement.

Given this diminishment of the plaintiffs' claim, the fact that the value of the injunctive relief to the class was unsupported, the fact that many class members were no longer site members or might not seek relief, the existence of a clear-sailing provision and the substantial amount of plaintiffs' attorneys' fees meant that the court abused its discretion in approving the settlement.

The approval of the attorneys fees was an independent abuse of discretion, since it was calculated as a percentage of the sum of the value of injunctive relief that should have formed no part of the calculation and an estimated cash payment that assumed a full claim of the award.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-55807.pdf

Ninth Circuit: Sharma v. Garland

 

As there was only one session of physical beatings, the single detention was only 18-19 hours, the threats were relatively few, and the instruction by the local police to his customers that they shouldn't repay their loans was offset by the fact that the petitioner wasn't killed and was free to seek other employment, there was substantial evidence for the Bureau's determination that past persecution was not proved.

Similarly, the Bureau's determination of insufficient evidence to show a reasonable fear of future persecution is supported by the decades since petitioner left the country, his family's continued residence there, and petitioner's past international travel after which he was able safely to return to his home country.

The determination that past harms didn't rise to the level of persecution necessarily entails the premise that the past harms didn't amount to torture.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-70238.pdf

Ninth Circuit: USA v. Amauje Jason Ferguson

 

Magistrate Judge's omission of query about compulsion from the plea acceptance colloqouy was insufficient plain  error for reversal, since, absent a claim that compliance with the rule would have resulted in a different plea, there was no effect on substantial rights, and the text of the rule deems errors that don't affect substantial rights to be harmless.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-10228.pdf

Eighth Circuit: Leroy Leftwich v. County of Dakota

 Absent a showing of delioberate indifference or subjective awareness of risk to the detained arrestee, there is no issue for trial on the S1983 claim.

Absent a policy of mental health screening, using personal assessment to answer the mental health questions on the intake form was a discretionary act, rather than ministerial in nature, as was the staff's personal meeting with the arrestee.  County's decision to have a formal mental health assessment 72 hours later was policymaking, not operational, and therefore incurred statutory public entity immunity.

Court did not abuse its discretion in denying aleave to amend to a party who did not notice the depositions witnesses who could provide the information that ws the basis of the motion to amend prior to the last date to amend the claim.

http://media.ca8.uscourts.gov/opndir/21/08/201821P.pdf