DC Circuit: James Blassingame v. Donald Trump

 An incumbent campaigning to retain their present office is not carrying out the duties of the office.  A President's speech on matters of public concern is not invariably an official function. Motion to the contrary can be made at summary judgment after development of facts supporting the claim.

The President attempted to alter the declared election results by various means.  

The President has official immunity for all acts within the outer perimeter of official presidential responsibility, including discretionary acts within a concept of duty associated with the office. An action's unlawful nature or inappropriate purpose does not move it past this outer perimeter.    

Actions taken in a plainly and purely unofficial context could be included in a test identifying matters of public concern. Inquiry into public/private capacity is distinct from this. An incumbent seeks re-election in a private capacity. Inquiry into capacity is objective and context-specific; if the inquiry yields no clear answer, the conduct is immune.

Claim under the "Take Care" clause presumes official capacity rather than establishes it. 

Structural separation of powers claim for lack of immunity actually establishes the contrary, as it's Executive action.  E.g., Steel Seizure cases.

First Amendment/incitement is a distinct calculus -- would afford protection when least needed, and vice versa.

Deft. has a right to develop the record for purposes of immunity prior to merits stage, as the immunity is immunity from suit.

CONCURRENCE:

Motive inquiry is intrusive.  Objective reading of content could mislead. Speech clothed in the trappings of the office generally immune.

PARTIAL CONCURRENCE:

Scope of the interlocutory analysis appropriately limited to the denial of absolute immunity as claimed, rather than setting out a calculus for the determination of context-specific immunity.  

James Blassingame v. Donald Trump

Ninth Circuit: Jigar Barabaria, et al. v. Antony Blinken et al.

 Denial of the temporary restraining order was appealable, given notice to parties, the fact that it was tantamount to the denial of a preliminary injunction, and the fact that it essentially decided the merits of the action.

Where the statute governing adjudication of status refers to availability of visas at the time of filing, but is silent as to availability at the time of adjudication, administrative rule requiring availability at adjudication is a reasonable construction of the statute. 

Jigar Barabaria, et al. v. Antony Blinken et al.

Eighth Circuit: Ind.-Alliance Party of Minn. v. Steve Simon

 Associational burden of a petition oath swearing to the lack of present intent to vote in a primary election for the contest in question is an insubstantial, and there are policy arguments in favor.  Those signing are presumed to know the law, and therefore that the lack of present intent to do so doesn't keep them from actually voting in the primary--the deterrent effect as to the associational burden on the petition signing isn't to be considered under per se/strict scrutiny.

Ind.-Alliance Party of Minn.  v.  Steve Simon

Fifth Circuit: USA v. Abbott

 Given documentary evidence, treaty claims, and the fact that the Supreme Court has taken judicial notice of the fact, there was no clear error in holding that the Rio Grande is a navigable river in Texas.  Navigability can include ferry traffic across the river.

No clear error in the District Court's holding that the floating obstruction devices tended to interfere with or diminish the navigable aspects of the river.  Structures were sufficiently permanent to come with the scope of the Act.

The constitutional gravity of a state's declaration of invasion and decision to mount an independent defense is inapposite to a motion for a preliminary injunction.  Court appropriately considered policy considerations when balancing equities.

DISSENT:

No showing that this segment of the river was historically navigable. Statutes and treaties precautionary and precatory, respectively.  Use of the river must have been more than sporadic, ineffective, and exceptional.  Out of context quote from the Supreme Court doesn't outweigh Texas geography.  Injunction directs the moving of the barrier, so the diplomatic harms aren't redressable.  Balance of equities favors the state. Allowing certain newspaper articles in under judicial notice was error.

USA v. Abbott

Fifth Circuit: USA v. Croft

 Listing qualified staff members who never showed up to work for purposes of a certification by a state agency was a violation of the identity theft statute, as the misrepresentation was at the crux of the fraud.

CONCURRENCE:

("Dubitante") The fraudulent aspect wasn't in the identities of the staff members, but in their qualifications.

USA v. Croft

Fourth Circuit: US v. Brent Brewbaker

Motion to shift the ground from per se violation to rule of reason was properly construed as a motion to dismiss the indictment, as it would have been an impermissible constructive amendment of the indictment.

Where two parties are alleged to have engaged in bid-rigging, and also relate vertically as supplier and contractor for awarded bids, the alleged conduct isn't an inherently anticompetitive restraint on trade subject to per se analysis.  Precedent requires that the companies be considered in their totality, so the horizontal bid-rigging isn't separable from the supply relationship.

Expert testimony as to the anticompetitive effects of the business practices should not have been excluded when considering a (constructive) motion to dismiss.

By ensuring that their competitor/distributor won the bidding war, the bidder could increase the demand for the supplier's product.

Fraud convictions for submitting a noncompetitive bid were not infected by the Sherman Act instructions reversed here.

US v. Brent Brewbaker 

Third Circuit: PJM Power Providers Group v. FERC

 Sufficient injury for standing from the electric rate increases; as vacating the underlying order would revert the scheme to its prior arrangement, rather than make it subject to change on remand, the injury is sufficiently redressable.

As the statutory cause of action references the generic act, the standard of review is the generic test, rather than a specific threshold in the statute.

Where the vote of the commissioners is tied, and the individual statements of the commissioners therefore in no way constitute an order of the commission, judicial review properly incorporates the entire record, including the individual statements.

When an agency shifts position on an issue, it need not prove that its new approach is better than the previous one. Agency's constructive acceptance of the new policy was neither arbitrary nor capricious, and was supported by substantial evidence in the record.

PJM Power Providers Group v. FERC

Tenth Circuit: Watchous Enterprises v. Mournes, et al.

 Local rule that uncontroverted facts were to be used against the nonmovant at summary judgment did not limit the effects of nonresponse to summary judgment.  The nonmovant must either contest the facts or show that the facts should not be established at the summary judgment stage.  Absent that, the facts, if not contested later at trial, could be included in the court's instructions for the verdict or used as a basis for in limine exclusion orders (subject to challenge as to the uncontroverted facts).

On appellate review, there must be a showing as to each disputed fact, not just a list of facts claimed to have been disputed. Court did not abuse discretion in admitting the challenged facts, given the testimony.  

Watchous Enterprises v. Mournes, et al.

Ninth Circuit: Anthony Sanders, et al. v. County of Ventura

Where, under a voluntary flexible-benefits reimbursement scheme, an employer retains as healthcare-related administrative fees some portion of the funds disbursed to an employee who has opted out of the employer's health insurance scheme, although the deduction is listed as a deduction from earnings, it is not part of the base salary used to calculate overtime wages under the statute, because the statute specifically exempts funds paid to a third party for an employee-related health scheme.

As a rulemaking that purported to set a hard ceiling for the amount of the employer's reservation contradicted an earlier holding, made no textual changes to the rule, and was based on determinations considered in the earlier case, the earlier holding controls.

Anthony Sanders, et al. v. County of Ventura

Sixth Circuit: State of Ohio v. Xavier Becerra

The Supreme Court has held that the statute's mandate is sufficiently ambiguous to allow for agency construction.  The agency's reading isn't contrary to the law.  Agency adequately explained its decision to revise the rule.  

The claim that the agency looked to the policy views of professional associations and federal statutes rather than the policies of the states states a legitimate concern, but since the state regulating bodies concede that one could practice within the state while taking either view of the question, the agency's decision wasn't arbitrary and capricious. 

Where the agency states that it is changing its course on a certain issue, it need not address specific earlier conclusory determinations contrary to the new course.

Agency must offer a clearer definition of the nature of a program to ensure the mandated separation of programs. Panel takes judicial notice of the list of pending grant recipients, which is sufficient to establish irreparable harm to the states, given the loss of federal funding. Relief in the form of a preliminary injunction should be limited to the state plaintiff that established sufficient harm by affidavits.

CONCURRENCE/DISSENT: 

Agency's program separation requirements not manifestly against the statute. Statute itself defines the contested term.  Rulemaking wasn't arbitrary and capricious--there is no increased threshold for subsequent agency action relative to initial agency action. Attendant harms required where plaintiff claims injury from loss of federal funds.  Public interest calculation of the injunction calculus should consider the decision of Congress.

State of Ohio v. Xavier Becerra

Sixth Circuit: Inner City Contracting LLC v. Charter Twp. of Northville

 Despite being a disappointed bidder for a government contract, the plaintiff alleged a specific injury, and therefore the claim isn't presumptively disfavored for purposes of standing. The dignitary harm in racial discrimination and the lost profits from the contract suffice for Article III standing.

A corporation's claim of racial discrimination falls within the zone of interests of the statute prohibiting racial discrimination in contract awards. Supreme Court holding saying that a corporation has no racial identity referred to constitutional standing, not statutory standing.  

Claims against state government entities must be under the general statute (S1983), as there is no cause of action against states under the particular statute.  Under the general statute, establishing that a contract was awarded to a higher bidder of a certain race states a claim absent any proffer as to the racial identity of the plaintiff corporation.

Private company reviewing bids and making a recommendation wasn't a state actor for purposes of the statute. Lack of investigation of bidding process insufficient for municipal liability.  No equal protection or due process claim where alleged discrimination was by the private entity of a private-public collaboration. No property interest in a lost contract bid, where the state actor had discretion to accept the bid.

Inner City Contracting LLC v. Charter Twp. of Northville

 

Second Circuit: Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen

Sufficient injury for standing where an investor has progressively accumulated a position in a fund, and the administrators pass a measure limiting the voting rights by default above a certain imminent threshold; this is not a "someday intention," and the possibility that the terms could be renegotiated after a proffer would merely constitute another injury from the costs.

Diminishment of the value of the shares is an injury in law, as it violates the statute; as the loss in value is analogous to conversion or other tort claim, there is a sufficient historical analogue to establish the concrete nature of the harm.

Default restriction on the voting rights of the shares of some purchasers inherently violates the statutory requirement of present, equal voting rights in shares.  The share-shareholder distinction has only been recognized in limited terms, such as compliance with incorporation requirements, and other shareholder-based restrictions on voting are less fundamental than blocking the voting rights entirely.

Plain meaning of the statute controls, rather than interpretations of its stated purposes.

Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen

First Circuit: Milton, MA v. FAA

 Municipality's claimed injury to itself from revised airport flight-paths is insufficiently particularized to itself as a municipality to confer standing.  Similarly, the losses from litigation and challenge costs aren't injuries, since the function of a municipality is to spend money on things that might benefit the citizens.   Argument that the plans caused people to move away is legally and factually distinct, and therefore raised too late in the reply brief.

Milton, MA v. FAA

Eleventh Circuit: USA v. Kendrick Eugene Duldulao, et al.

 Although the conspiracy instruction might have been faulty, a prior panel held that it sufficiently conveyed the mens rea required for culpability, and circuit precedent can't be changed within the circuit absent en banc review. Circuit precedent to contrary was for general offense of conspiracy, rather than specific statute.

Although the other challenged instruction was suggested by the deft at trial (in accordance with longstanding precedent), subsequent changes in the caselaw are an exception to the invited-error doctrine, and sufficient under plain error review.

Sufficient evidence for conviction.  Expert medical testimony on appropriate standard of care, even when dispositive, wasn't plain error.

USA v. Kendrick Eugene Duldulao, et al.

Tenth Circuit: Team Industrial Services v. Zurich American Insurance Company, et al.

 Second company that assumed the obligations of a first company by a series of agreements consolidating and retiring the earlier agreements was not covered under the insurance of the counterparty, as the new agreements set such coverage at the discretion of the counterparty.  Use of the first company's credentials by the second company to file insurance paperwork insufficient to offset.  No cause for reformation absent evidence that the counterparty had any other intent.  If there was a fiduciary duty of the counterparty, it was owed only to the first company.  Promissory estoppel unjustified.

Team Industrial Services v. Zurich American Insurance Company, et al.

Ninth Circuit: Tellez-Ramirez v. Garland

Under modified categorical review, the state drug statute is a valid immigration predicate.  The list of drug classes doesn't establish several means of committing a single crime in itself, but is rather a list of  elements establishing distinct violations--this is due to the varying lengths of sentence, caselaw referencing the need to prove specific substances within a single class, and the fact that the specific illicit substance is named within the jury instructions.  

The overbreadth of the state statute relative to the federal crime doesn't import a similar overbreadth into the mens rea; a belief that the substance was proscribed under state law would suffice for a state conviction that could pass Immigration muster, as the state mens rea and federal mens rea requirements are identical.

State caselaw incorporating solicitation into aiding and abetting, and under which, by statute, the conduct is culpable as the conduct of a principal under the specific state statute doesn't make the specific state statute broader than the federal version, since solicitation alone would be an inchoate offense distinct from an accessory's conviction as a principal under the specific statute, which would require a completed offense--not mere solicitation.

Tellez-Ramirez v. Garland

Sixth Circuit: In re: Cal. Palms Addiction Recovery Campus, Inc.

Shifting the bankruptcy proceeding to another statutory title for purposes of liquidation finalized the rights of the parties with significant and irreparable consequences, so the order is sufficiently final for purposes of appeal.

Court did not abuse its discretion in moving to liquidation, despite the possibility that the order would diminish the party's ability to recover funds in pending lawsuits, given concerns about the management of the estate.

Party insufficiently prejudiced by two-day violation of notice requirement. Lack of counsel at hearing not prejudicial, as there was no objection to withdrawal or request for continuance.

Cal. Palms Addiction Recovery Campus, Inc.

Fifth Circuit: Sligh v. City of Conroe

Police dog's directed attack was a violation of pedestrian's constitutional rights, but not a clearly established violation of constitutional rights for liability purposes, since precedent cited was of a non-resisting suspect.  Similarly, claims against bystander officers and the municipality were not against clearly established law.  Police knowledge that pedestrian was a mental patient insufficient for a claim under the disability act.

Sligh v. City of Conroe

Fourth Circuit: US v. Dearnta Thomas

 The federal racketeering violence statute is a crime in itself, and satisfies the requirements for a crime of violence without looking through the statute to the underlying state-law predicates of the conviction.

US v. Dearnta Thomas

Eleventh Circuit: Robert Ponzio, et al v. Emily Pinon, et al

 Court, acting as a fiduciary for the class, didn't err in accepting a settlement of a class action as fair, reasonable, and adequate.  Plaintiffs couldn't substantiate number of affected customers who were categorically ineligible under the settlement. Order sufficiently reasoned, terms could have been acceptable to reasonable counsel.

Robert Ponzio, et al v. Emily Pinon, et al