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August 24, 2016
  Andrea Constand v. William H. Cosby, Jr. - Third Circuit
Headline: Third Circuit Holds that Cosby's Request to Reseal Documents Containing Sexual Admissions is Moot

Area of Law: Civil Procedure, Mootness

Issue(s) Presented: Has William Cosby's appeal to reseal documents become moot due to the public disclosure of their contents?

Brief Summary:

William H. Cosby, Jr. made damaging admissions regarding his sexual conduct in a 2005 deposition. Documents from the deposition were sealed from public view by an interim order issued by the District Court. In 2015, the District Court issued an order that the documents be immediately unsealed. Wide dissemination of the documents by prominent news sources promptly followed, which made public that Cosby had engaged in extramarital affairs; acquired Quaaludes and engaged in sexual relations with a woman after she ingested the drug; and had given money to one woman and offered money to Constand. The Third Circuit rejected Cosby's argument that resealing the documents would at least slow the dissemination of their contents and might affect whether they could be used against him in other litigation. It held that the appeal had become moot due to the public disclosure of their contents so that resealing the documents would have no effect.

Extended Summary:
William H. Cosby, Jr. appealed to the Court the District Court order unsealing certain documents that revealed damaging admissions he made in a 2005 deposition regarding his sexual behavior. There was no stay of that order, and the contents of the documents received immediate and wide publicity. The unsealed documents result from a complaint filed by Andrea Constand against Cosby in the District Court in March 2005. Constand alleged that Cosby has drugged and sexually assaulted her at his home. As part of the discovery process, Constand's counsel took Cosby's deposition and questioned him regarding his relationships with other women, including whether any of these women had ingested Quaaludes prior to a sexual encounter. The documents thus reveal that Cosby made a number of damaging admissions during his deposition, including that he had: engaged in extramarital affairs; acquired Quaaludes and engaged in sexual relations with a woman after she ingested the drug; and given money to one woman and offered money to Constand. However, these documents were sealed under an interim order issued by the District Court in November 2005.

Before the District Court could rule on whether the documents should remain sealed permanently, Cosby and Constand reached a confidential settlement in October 2006, and the case was dismissed shortly thereafter. The interim sealing order continued in effect and the documents remained sealed. The District Court's Local Rules require that the Clerk of Court send a notice to the attorney for the party who submitted the sealed documents stating that the documents will be unsealed unless an objection is filed. Eight years passed without the Clerk taking any action. In December 2014, the AP requested that the Clerk issue such a notice. The Clerk then placed a notice on the District Court docket stating that the documents would be unsealed within 60 days unless an objection was filed. Cosby's counsel filed an objection and the District Court allowed the AP to intervene and argue for lifting the interim sealing order. Cosby did not request a stay at this time. On July 6, 2015, the District Court issued an order that the documents be immediately unsealed and accompanied the order with a 25-page opinion explaining its reasoning.

Without a stay and with the District Court's instruction that the Clerk unseal the documents "forthwith," an AP reporter discovered that the documents were publicly available and downloaded them within minutes of the online posting. Though Cosby's counsel emailed a stay request to the Court less than 20 minutes later, it was too late to prevent the media from publicizing Cosby's damaging admissions. The AP sent out a "news alert" reading "Documents: Cosby admitted in 2005 to getting Quaaludes to give to women he sought sex. Within hours, four more news organizations had published stories regarding the contents of the documents. In addition, The New York Times obtained a full transcript of the deposition and published excerpts on its website. In the wake of this publicity, the District Court did not rule on Cosby's stay request, and he filed a notice of appeal to the Court.

The Court held that Cosby's appeal has become moot due to the public disclosure of their contents. The Associated Press (the "AP") argued in favor of mootness because resealing the documents after they have already become public will have no effect. Cosby argued that this was not the case as resealing the documents would at least slow the dissemination of their contents and might affect whether they could be used against him in other litigation.

The Court noted that it has previously held that appeals seeking to restrain further dissemination of publicly disclosed information are moot. In light of the extensive publicity surrounding Cosby's admissions, the Court was without power to affect the dissemination of the unsealed documents' contents in any meaningful way. Five prominent news organizations published articles about the documents within hours of the District Court's order and the media has repeated his damaging admissions countless times since then. In addition, a Google Search for "Bill Cosby deposition testimony" yields some 81,200 results, some which include full copies of the documents. The Court noted that anyone with an Internet connection can easily obtain images of the original documents online, so it is not clear why anyone would bother filing an additional public records request.

The Court also held that any effect that resealing the documents might have on the numerous other legal proceedings that result from sexual assault allegations against Cosby are not enough to present a live controversy in the appeal. The Court rejected Cosby's argument that resealing the documents would leave him "better positioned" to persuade "the various courts in which he finds himself a party" to limit the use of the documents in the proceedings before them. The Court stated that this argument effectively requested an advisory opinion, and that Cosby failed to cite any authority to the effect that sealing documents in a civil case would render them inadmissible in another litigation. Sealed documents are often admitted into evidence. Thus resealing the documents would not provide Cosby with any meaningful relief and the appeal was moot.

Because the appeal was moot, the Court could not review the merits of the District Court's decision to unseal the document. However, it exercised its equitable discretion to vacate the District Court's order, which would prevent its decision from "spawning any legal consequences." The Court vacated the District Courts' order out of concern for procedural fairness, namely that parties should not remain bound by a decision that the court of appeals cannot review because it has become moot.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/152797p.pdf

Panel: Ambro, Smith, and Krause, Circuit Judges

Argument Date: April 13, 2016

Date of Issued Opinion: August 15, 2016

Docket Number: No. 15-2797

Decided: Vacated and Dismissed

Case Alert Author: Cynthia C. Pereira

Counsel: George M. Gowen, III, Patrick J. O'Connor, Counsel for Appellant; Gayle C. Sproul, Elizabeth Seidlin-Bernstein, Counsel for Intervenor-Appellee.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/24/2016 03:50 PM     3rd Circuit     Comments (0)  

  United States of America v. Everett C. Miller - Third Circuit
Headline: Sentencing Guidelines Investment Enhancement applied to defendant even though he was not registered as an investment advisor

Area of Law: Securities Law

Issue(s) Presented: Does a defendant have to be a registered investment advisor to be subject to the investment enhancement under the Sentencing Guidelines?

Brief Summary:

Appellant Everett C. Miller sold investors over $41 million in phony "promissory notes" and then squandered their money. Miller pled guilty to one count of securities fraud and one count of tax evasions. He was sentenced to 120 month's imprisonment. The Third Circuit rejected Miller's argument his sentence should not have included the Sentencing Guidelines investment enhancement, because he was not an "investment adviser," as defined by the Investment Advisers Act of 1940. The Court held that, based on the text of the investment adviser enhancement and at the definition of investment adviser under the Act, Miller was an "investment adviser" he was in the business of providing securities advice, which he provided for compensation. It was not necessary for him to be a registered investment adviser to be considered one under the Act.

Extended Summary:

Everett C. Miller was the founder, chief executive and sole owner of Carr Miller Capital LLL (Carr Miller), an investment and financial services firm. Carr Miller was based in New Jersey and had more than thirty affiliates and related entities. Between June 2006 and December 2010, Carr Miller received over $41.2 million in capital from more than 190 investors. Miller himself was a registered investment adviser representative under New Jersey securities law. While he only had a high school GED, he passed several securities industry examinations. Through Carr Miller, Miller sold investors "Carr Miller Capital promissory notes, which were securities under the Securities Act of 1933 and the Securities Exchange Act of 1934, and not exempt from federal or state registration requirements. Miller did not register the notes. The notes promised annual returns of between 7 and 20 percent, which varied by investor, plus the return of the principal after nine months. These promises were false.

Miller deceived his investors in various ways. For one, he operated Carr Miller as a Ponzi Scheme as he spent approximately $11.7 million of its investors' principal to repay earlier investors. He also invested in risky business ventures without informing investors. Carr Miller lost approximately $15.7 million of $22.9 million invested by the firm. Carr Miller also comingled investors' funds in seventy-five related bank accounts, which Miller then tapped like a "credit card" for Carr Miller overhead and his own expenses. Miller spent lavishly on luxury cars, home furnishings, electronics, vacations and tickets to entertainment and sporting events. The Arkansas Securities Department opened an investigation of a Carr Miller affiliate in August 2009. This investigation put Miller on notice that his promissory notes were unregistered securities. After becoming aware of the investigation, he knowingly sold almost $5 million in promissory notes to forty new investors. He did not return any of their principal. Instead, Miller used a portion of the funds to repay earlier investors and spent the balance of the money on Carr Miller overhead and his own expenses. This period from August 2009 to December 2010, formed the basis of Miller's securities fraud conviction and led to a stipulated loss amount of $2.5 to $7 million.

Miller pled guilty pursuant to a plea agreement and a cooperation agreement. The parties stipulated to a combined offense level of 29, followed by a 3-level reduction for acceptance of responsibility, resulting in a sentence within offense level 26. Under the cooperation agreement, Miller agreed to provide substantial assistance in exchange for the Government's downward departure motion, further reducing the stipulated offense level of 26 to offense level 23. At Miller's sentencing, the District Court applied the 4-level investment adviser enhancement, rejecting his argument that he did not meet the definition of an "investment adviser." Although the District Court did grant a 3-level downward departure, its having added 4 levels for the investment adviser enhancement, resulted in the downward departure being from offense level 30 to 27 rather than from 26 to 23. The plea agreement was silent as to this enhancement. When the District Court asked the Government for its sentencing recommendation the Government stated that it was requesting a sentence at "offense level 23." However, the District Court did not depart below level 27 and imposed an upward variance of 2 levels. This produced a final offense level of 29 and a Guidelines range of 97 to 121 months' imprisonment. It imposed a sentence of 120 months imprisonment on Miller.

The Court rejected Miller's challenge to the District Court's application of the Sentencing Guidelines investment adviser enhancement. The text of the investment adviser enhancement applies a 4 level enhancement for securities violations where the defendant was an investment advisor. The enhancement adopts the definition of "investment adviser" in the Investment Advisers Act of 1940 which states: "Investment adviser means any person who for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities." The Act enumerates exemptions from this definition, which the Court concluded did not apply to Miller. It also concluded that the structure of the act demonstrated Congressional intent to define "investment adviser" broadly while carving out exemptions.

The Court rejected Miller's argument that he was not an "investment adviser" as he was not in the business of providing securities advice, he did not provide securities advice for compensation and he was not a registered investment adviser. It found that Miller provided securities advice by personally advising individuals to invest in Carr Miller promissory notes. Under the SEC interpretive release, Miller was in "the business" of providing securities advice because he held himself out as a person who provides investment advice. Miller was a registered investment adviser representative, which may involve rendering securities advice.

The Court then looked to the SEC Release for the definition of compensation. The SEC defined compensation as "any economic benefit, whether in the form of an advisory fee or some other fee relating to the total services rendered, commissions, or some combination of the foregoing." Miller provided securities advice to Carr Miller investors for compensation, as based upon Miller's securities advice, investors bought Carr Miller promissory notes. The principal they provided became Miller's compensation when he commingled investors' accounts and spent the money for his own purposes. The Court also rejected his final argument that he was not an "investment adviser" because he was not registered as an investment adviser, but rather as an investment adviser representative. The Court held that registration is not necessary to be an "investment adviser" under the Act. Under the Act some rules apply to registered investment advisers, some to unregistered investment advisers and some to both. The Act prohibits fraud by "any" investment adviser, regardless of registration. As Miller was an "investment adviser" under the Act, despite his failure to register as such, the Court held that the District Court properly applied the investment adviser enhancement. The Court affirmed the District Court's sentence.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/152577p.pdf

Panel: Fuentes, Chagares, Restrepo, Circuit Judges

Argument Date:

Date of Issued Opinion: August 12, 2016

Docket Number: No. 15-2577

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

Counsel: Richard Sparaco, Counsel for Appellant; Mark E. Coyne, Norman Gross, Counsel for Appellee.

Author of Opinion: Circuit Judge Restrepo

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/24/2016 03:48 PM     3rd Circuit     Comments (0)  

August 22, 2016
  Freedom From Religion Foundation Inc. v. New Kensington Arnold School District - Third Circuit
Headline: Frequent contact not required for mother of student to challenge a Ten Commandments monument at local high school

Area of Law: Constitutional Law

Issue(s) Presented: Is frequent contact with a religious display required for plaintiff to have standing to challenge a school's Ten Commandments monument?

Brief Summary:

Marie Schaub along with her daughter Doe 1 and the Freedom From Religion Foundation (FFRF) brought suit against the New Kensington-Arnold School District, alleging the district had violated the Establishment Clause by maintaining a monument of the Ten Commandments at its public high school. Schaub saw the monument on occasion and sent her Doe 1 to a different high school to avoid the monument. The Third Circuit held that there is no requirement of frequent contact with a religious display for a person to have standing to challenge the display. It concluded that the issue was not moot because Doe 1 could return to the high school or its campus if the monument was removed.

Extended Summary:

Marie Schaub, her daughter Doe 1, and the Freedom From Religion Foundation (FFRF) sued the New Kensington-Arnold School District alleging that it had violated the Establishment Clause by maintaining a monument of the Ten Commandments at its public high school. In 1956, the New Kensington Fraternal Order of the Eagles, a non-profit charitable organization, donated a monument inscribed with the Ten Commandments to be placed on the grounds of Valley High School in New Kensington. The donation was part of a nationwide program through which local chapters of the organization donated over 140 such monuments. The organization believed that troubled teens would benefit from exposure to the Ten Commandments as a code of conduct. In addition to the text of the Ten Commandments, the monument is adorned with images of an eagle, an American flag, the Star of David, the Chi-Rho symbol, a Masonic eye, and tablets with Hebrew and Phoenician lettering. The monument is near the entrance of the school's gym. Anyone entering the school via this entrance passes within 15 feet of the monument. The parties disagreed about how closely one must approach the monument in order to read its text.

The FFRF, an organization dedicated to promoting separation of church and state, wrote a letter to the Superintendent of the District requesting that the monument be removed. The school board rejected the request. Schaub saw a news report about the letter and the school board's decision on television and contacted FFRF through its website. She maintained that she had been a member of FFRF since August 2012, when she contacted FFRF regarding the lawsuit. Schaub and Doe 1 live within the New Kensington-Arnold School District. Schaub had visited the high school and come into contact with the monument various times. In addition, Doe 1 was scheduled to attend the high school beginning in August 2014, and Schaub planned to drive her to school. Schaub estimated that from the curb, where she would drop someone off at the gym's entrance, she could make out the title of "The Ten Commandments" and the word "Lord" on the monument. The monument can also be seen from the road on which Schaub and Doe 1 frequently travel.

Schaub alleged that the monument brands her as "an outsider because [she] do[es] not follow the particular religion or god that the monument endorses." She wishes to bring up her daughter without religion and does not want her daughter to be influenced by the monument. Doe 1 identifies as non-religious. She had come into contact with the monument at a young age she had never read it. Doe 1 also stated that she "does not feel like she has to believe in god, but that since it's there in front of a school that they kind of want you to be that way." Appellants conceded that the record is silent as to whether Doe 1 had this view at the time the complaint was filed. Schaub decided to send Doe 1 to a different high school, which required her to leave her middle school classmates and attend a school farther from Schaub's home. Schaub claimed that if the monument were removed, she would permit Doe 1 to enroll at the school. Appellants filed suit in District Court seeking declaratory and injunctive relief, nominal damages, and attorney's fees. During the pendency of the lawsuit, Schaub and Doe 1's contact and possible contact with the monument continued. The District Court granted the District's summary judgment motion, concluding that the Appellants lacked standing and their request for injunctive relief was moot.

The Third Circuit reversed, holding that Schaub had standing to seek both nominal damages and injunctive relief, and that her request for injunctive relief is not moot. The Court concluded that a plaintiff must show direct and unwelcome personal contact with the alleged establishment of religion, but there is no requirement that the contact be frequent or that the challenger has altered her behavior to avoid contact. The Supreme Court has established that a single trifle is sufficient to establish standing. Frequent contact with a religious display may strengthen the case for standing but is not required to establish it. In addition, the Court expressed its view that a community member should not be forced to forgo a government service to preserve his or her ability to challenge an allegedly unconstitutional religious display or behavior. However, the Court stated that a passerby who is not a member of the community, and who faces no risk of future contact, may not have an injury in fact sufficient to confer standing. Standing requires that a plaintiff have a concrete grievance that is particularized to her; she cannot simply be expressing a generalized disagreement with activities in a place in which she has no connection. The Court held that Schaub had standing to pursue a nominal damages claim as she demonstrated that her contact with the monument was unwelcome.

The Court also held that Schaub had standing to seek injunctive relief, as Schaub would have contact with the monument while driving Doe 1 to school. In addition, as Doe 1's parent she has an interest in guiding her child's religious upbringing and has standing to challenge actions that seek to "establish a religious preference affecting" her child. The Court made clear that Schaub's decision not to send Doe 1 to the high school does not deprive Schaub of standing to seek injunctive relief. The Court still has the capacity to redress her grievances, as Doe 1 could return to the school if the monument is removed so her claim for injunctive relief is not moot. Schaub was not required to continue suffering the exact injury described in the complaint to maintain her entitlement to relief. The Court concluded that it need not address whether Doe 1 had standing to obtain an injunction, but concluded that the District Court correctly found that she lacked standing to seek nominal damages. The Court held that Doe 1 lacked standing to seek nominal damages, as it was not clear from the record that Doe 1 read or understood the monument until after the suit was filed.

Finally, the Court vacated the order dismissing FFRF's claims. The Court concluded that FFRF's standing was predicated wholly on the standing of Schaub. As the Court concluded that Schaub had standing, it remanded to the District Court to determine whether she was a member of FFRF at the time the complaint was filed, thereby giving FFRF organizational standing to pursue either injunctive relief or nominal damages.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153083p.pdf

Panel: Smith, Hardiman, and Shwartz, Circuit Judges

Argument Date: May 19, 2016

Date of Issued Opinion: August 9, 2016

Docket Number: No. 15-3083

Decided: Affirmed in part, reversed and remanded in part, vacated and remanded in part

Case Alert Author: Cynthia C. Pereira

Counsel: Patrick C. Elliott, Marcus B. Schneider, Counsel for Appellants; Christine Lane, Anthony G. Sanchez, Counsel for Appellee; Richard B. Katskee, Alexander J. Luchenitser, Stephen M. Shapiro, Charles M. Woodworth, Brian D. Netter, Steven M. Freeman, David L. Barkey, Jeffrey I. Pasek, Harsimran Kaur, Gurjot Kaur, Counsel for Amicus Curiae

Author of Opinion: Circuit Judge Shwartz

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/22/2016 02:40 PM     3rd Circuit     Comments (0)  

  Aref v. Lynch
Headline: D.C. Circuit allows suit by federal prisoners isolated in Communication Management Units to proceed.

Issue Presented: Whether federal prisoners who spent years housed in Communication Management Units (CMUs) with curtailed access to family and the outside world suffered "atypical and significant hardships in relation to the ordinary incidents of prison life" sufficient to assert a due process violation.

Brief Summary: CMUs represent an effort to keep federal prisoners incarcerated for terrorism-related convictions from communicating with extremist groups outside of prison. Inmates assigned to CMUs face restrictions on visits and monitoring of their letters and telephone calls. Several prisoners housed in CMUs in Indiana and Illinois for a period of years filed suit against the Bureau of Prisons challenging their CMU placement on various grounds, alleging procedural and substantive due process violations and an unlawful retaliatory transfer in violation of their First Amendment rights. The United States District Court for the District of Columbia dismissed most of the claims before discovery and granted summary judgment as to the remaining claims relating to procedural due process and First Amendment retaliation.

The U.S. Court of Appeals for the District of Columbia Circuit reversed in part. The court first determined that the issue was not moot despite plaintiffs' transfer out of CMU, noting that the government's voluntary cessation of challenged conduct can moot a controversy only where it is absolutely clear there is no chance that the conduct or situation will recur.

The court then examined whether plaintiffs had asserted a liberty interest under the standard set out by the Supreme Court in Sandin v. Conner, 515 U.S. 472 (1995), which examined whether the inmates suffered "atypical and significant hardship in relation to the ordinary incidents of prison life." Id. at 484. The court observed that circuits have split on what the appropriate baseline is by which to determine the "ordinary incidents" of prison life, with some comparing inmates' treatment to the general population, some to administrative confinement, and some to conditions that obtain in the harshest facilities in a state's most restrictive prisons. The court found itself bound on this question by Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir. 1999), in which the D.C. Circuit held that an inmate's treatment should be compared to the most restrictive treatment routinely imposed on inmates serving similar sentences, evaluating not merely conditions of treatment but also duration. The court also noted that the Sandin/Hatch framework applied even though the plaintiffs' assignment to CMUs was a non-punitive classification rather than a punitive, disciplinary measure.

Turning to the facts, the court indicated that, while the question of whether a liberty interest existed was a close call, the indefinite length and selectivity of assignment to CMU gave rise to "atypical and significant hardship" even though conditions, in the abstract, were no more severe than ordinary administrative confinement. Because the district court had not reached the question of whether plaintiffs received constitutionally adequate pre- or post-deprivation process, the D.C. Circuit remanded. In doing so, the court noted that prison administrators are given broad leeway and that only minimal process was likely due.

With respect to the retaliatory transfer claim, one plaintiff had claimed that his transfer from CMU was denied because of a sermon he gave as part of a Muslim prayer group meeting, in violation of the First Amendment. Invoking Turner v. Safley, 482 U.S. 78 (1987), the court found that the prison's denial of transfer was reasonably related to legitimate penological interests. The court agreed with the government that prison administrators could reasonably have construed plaintiff's sermon as an attempt to radicalize inmates, thereby constituting a security risk. The court found the inmate still had means to communicate his dissatisfaction, despite his assignment in CMU, and affirmed the district court's grant of summary judgment to the government.

Finally, the court examined plaintiffs' claims for damages against the prison warden in his individual capacity under Bivens. The court began with an issue of first impression for the circuit, whether the Prison Litigation Reform Act (PLRA) permitted damages for constitutional violations without a showing of underlying physical injury. The court observed that circuits had split on the question of whether constitutional violations are independently compensable absent a showing of physical harm and ultimately concluded that the statutory language at issue, which required a showing of physical injury in order to render mental and emotional damages compensable, negated the inference that physical injury was a required showing for other kinds of injuries. Ultimately, though the court permitted suit for compensatory, punitive, and nominal damages under the PLRA, it found the particular claims alleged by plaintiffs were foreclosed by qualified immunity because the prison warden could not have known his actions violated a clearly established constitutional right.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-5154-1631155.pdf.

Panel: Brown, Srinivasan, Edwards

Argument Date: March 15, 2016

Date of Issued Opinion: August 19, 2016

Docket Number: 15-5154

Decided: Reversed in part.

Counsel: Rachel Anne Meeropol, Pardiss Kebriaei, and Gregory Stewart Silbert for appellants.

Carleen M. Zubrzycki, Benjamin C. Mizer, and H. Thomas Byron III for appellees.

Author of Opinion: Brown

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/22/2016 08:13 AM     DC Circuit     Comments (0)  

August 12, 2016
  Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection - Third Circuit
Headline: Third Circuit rejects challenges to the expansion of the Transcontinental Pipeline

Area of Law: Environmental

Issue(s) Presented: Were the permits for the expansion of the Transcontinental Pipeline issued by state agencies appropriate?

Brief Summary:

The Court denied challenges by environmental groups to the Federal Energy Regulatory Commission's (FERC) approval of expansion of the transcontinental gas pipeline operated by Transco. The expansion involved construction of four new pipeline "loops" and the upgrade of turbines at four compressor stations in Pennsylvania and New Jersey. FERC completed an Environmental Assessment of the project and issued a Certificate of Public Convenience and Necessity. The certificate was conditioned on Transco's receipt of "all applicable authorizations under federal law" enumerated in the Environmental Assessment, some of which were to be obtained from New Jersey and some from Pennsylvania. The Pennsylvania and New Jersey Departments of Environmental Protection (PADEP and NJDEP) reviewed the expansion proposal for potential water quality impacts, and both issued the permits required by FERC's Environmental Assessment. Environmental groups challenged the underlying state agency decisions. The Court concluded that NJDEP and PADEP did not act arbitrarily or capriciously in issuing the permits and thus denied the petitions.

Extended Summary:

Transcontinental Gas Pipe Line Company, LLC (Transco), operates the Transcontinental pipeline, a 10,000-mile pipeline that extends from South Texas to New York City. Transco requested federal approval for the expansion of the Leidy Line, which connects gas wells in Central Pennsylvania with the main pipeline. The project consisted of the construction of four new pipeline "loops" and the upgrade of turbines at four compressor stations in New Jersey and Pennsylvania. Loops are sections of pipe connected to the main pipeline system that reduce the loss of gas pressure and increase the flow efficiency of the system. Compressor stations serve a similar function, using turbines to increase the pressure and rate of flow at given points along the pipeline's route. Transco proposed installing approximately thirty miles of loops. FERC completed the requisite Environmental Assessment in August 2014, and issued the certificate of public convenience and necessity. The certificate was conditioned on Transco's receipt of "all applicable authorizations under federal law" enumerated in the Environmental assessment, some of which were to be obtained from New Jersey and some from Pennsylvania.

Under the Clean Water Act, the Pennsylvania and New Jersey Departments of Environmental Protection (PADEP and NJDEP) reviewed the expansion proposal for potential water quality impacts. Both agencies issued the necessary permits. The New Jersey portion of the project is substantially complete. Several environmental groups challenged the state permits. The petitions were consolidated for review.

The Court first rejected PADEP and NJDEP's challenge that the Court lacked subject matter jurisdiction to review the petitions. The Riverkeeper and the Foundation, in petitioning the court for review, invoked Section 19(d) of the Natural Gas Act that confers original jurisdiction on Courts of Appeals over certain state and federal permitting actions for interstate natural gas pipelines. Both PADEP and NJDEP contested whether that provision applied, as they alleged that they did not act "pursuant to Federal law' in issuing Water Quality Certifications, permits, and Letters of Interpretation to Transco. The Court found that that although the Clean Water Act makes clear that states have the right to promulgate water quality standards as they see fit, the issuance of Water Quality Certification is not purely a matter of state law. Specifically, a Water Quality Certification confirms compliance with sections of the Clean Water Act, therefore it cannot exist without federal law. The Court also found that each of the permits issued by NJDEP were rooted in NJDEP's exercise of authority that it assumed pursuant to Sections 401 and 404 of the Clean Water Act.

The Court also dismissed NJDEP and Transco's argument that the petition for review was moot because construction was complete and Transco had been conducting mitigation and restoration. Thus, any procedural remedy would be ineffectual. Holding that the central question in a mootness analysis is "whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief, the Court concluded that the case was not moot, as NJDEP may monitor mitigation outcomes following completion of mitigation. Therefore, possible effectual relief remained because future environmental analysis might lead NJDEP to require additional mitigation from Transco.

The Court also rejected PADEP and NJDEP's assertions that the petitions were barred by the sovereign immunity provided by the Eleventh Amendment. The Court held that New Jersey and Pennsylvania's voluntary participation in the regulatory schemes of the Natural Gas Act and the Clean Water Act constituted a waiver of sovereign immunity, given the clear language in those statutes subjecting their actions to federal review. A state may waive its immunity by engaging in conduct that demonstrates the state's consent to suit in federal court. The Court concluded that Section 19(d) of the Natural Gas Act grants the Courts of Appeals jurisdiction to review "state agency action" and the language is unambiguous. New Jersey and Pennsylvania's participation in the regulatory scheme of the Clean Water Act with respect to interstate natural gas facilities, pursuant to Section 19(d), constituted a waiver of their immunity from suits brought under the Natural Gas Act. In effect, Section 19(d) of the Natural Gas Act created a small carve out from sovereign immunity. Under this limited carve out, federal judicial review is proper over those state actions regarding interstate natural gas facilities pursuant to the Clean Water Act and the Clean Air Act.

The Court ultimately held that the petitions lacked merit. The Court reviewed the state agencies' interpretation of federal law and reviewed under the arbitrary and capricious standard state actions take pursuant to federal law. Agency action is arbitrary and capricious when the agency fails to examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between facts found and the choice made. The Court concluded that NJDEP did not act arbitrarily or capriciously with respect to three errors alleged by the Foundation: NJDEP deprived the Foundation of sufficient opportunity to comment, NJDEP issued the Freshwater Wetlands Individual Permits based on unsupported conclusions, and NJDEP erred in determining that Transco met the requirements for the Flood Hazard Area Individual Permits and hardship exceptions for those permits. The Court also concluded that that PADEP did not act arbitrarily or capriciously in regards to the two challenges raised by the Riverkeeper: PADEP failed to review an environmental assessment prepared by Transco before issuing the Water Quality Certification, as required by state regulations; and the material that PADEP did review were substantially insufficient. The Court determined that the Riverkeeper had failed to demonstrate prejudice from the alleged errors.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/152122p.pdf

Panel: Greenaway, Jr., Scirica, and Roth, Circuit Judges

Argument Date: October 29, 2015

Date of Issued Opinion: August 8, 2016

Docket Number: No. 15-2122; 15-2158

Decided: Denied

Case Alert Author: Cynthia C. Pereira

Counsel: Aaron J. Stemplewicz (Argued) Counsel for Petitioners Delaware Riverkeeper Network and Maya Van Rossum; Katherine V. Dresdner, Aaron Kleinbaum, Susan J. Kraham Edward Lloyd (Argued), Counsel for Petitioners New Jersey Conservation Foundation Stony Brook Millstone Watershed Association and Friends of Princeton Open Space; Joseph S. Cigan, III (Argued), Kimberly Hummel Childe, Margaret O. Murphy, Curtis C. Sullivan, Counsel for Respondents Secretary Pennsylvania Department of Environmental Protection and Pennsylvania Department of Environmental Protection; Pamela S. Goodwin, Patrick F. Nugent, John F. Stoviak (Argued), Elizabeth U. Witmer, Counsel for Intervenor Respondent Transcontinental Gas Pipe Line Corp.; Mark A. Collier, John E. Doyle, Timothy P. Malone, Lewin J. Weyl (Argued), Counsel for Respondent New Jersey Department of Environmental Protection; Michael K. Rutter, Heather N. Oehlmann, Christine A. Roy (Argued), Richard G. Scott, Counsel for Respondent Transcontinental Gas Pipe Line Corp

Author of Opinion: Circuit Judge Roth

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/12/2016 01:35 PM     3rd Circuit     Comments (0)  

August 5, 2016
  Roy Langbord v. United States Department of the Treasury - Third Circuit en banc
Headline: Third Circuit affirms Government's ownership of stolen 1933 Double Eagle Coins

Area of Law: Property, civil forfeiture

Issue(s) Presented: Was the Mint required to file a forfeiture action under CAFRA to keep coins which were submitted to it solely for authentication by putative owners?

Brief Summary:

The dispute regarded the rightful ownership of ten pieces of gold, rare 1933 Double Eagles, which were supposed to be melted shortly after they were minted, when the US went off the gold standard. A few of the 1933 Double Eagles escaped this fate when they were stolen by the Philadelphia Mint's cashier and distributed by a Philadelphia merchant. Since 1944, the United States has attempted to locate and recover all extant 1933 Double Eagles. One was sold to King Farouk of Egypt in 1944 and acquired in 1995 by Stephen Fenton, an English coin dealer. When Fenton attempted to resell that coin to a collector in New York, the government seized it. The government agreed to resolve its dispute with Fenton by auctioning the coin and splitting the $7,590,020 proceeds. A year after the auction, Joan Langbord, daughter of the merchant, discovered ten 1933 Double Eagles in a family safe-deposit box. Her attorney, who had also represented Fenton in his dispute, contacted the Mint in an effort to resolve the Langbords' claim in the same manner. The Langbords agreed to turn the coins over for authentication only. The Mint took possession of the ten 1933 Doubles Eagles in 2004, authenticated them in 2005, but refused to return them to the Langbords.

The en banc decision reversed the panel and affirmed the District Court's declaratory judgment that, because the coins were not authorized to be removed from the Mint, they remained property of the United States. It also found that the Mint's refusal to return the coins was a seizure but not a forfeiture and thus the judicial forfeiture action by the United States, ordered by the District Court, was not time-barred under CAFRA.

Extended Summary:

This appeal dealt with a dispute over ten pieces of gold. The Langbords claimed to be the rightful owners of the gold pieces while the Government claimed that they were the property of the United States. The ten gold pieces, 1933 Double Eagles, had a face value of $20. The renowned sculptor August Saint-Gaudens designed these Double Eagles in 1907 at the request of President Theodore Roosevelt and millions were manufactured between 1907 and 1933 as legal tender. However, in 1933 President Franklin Delano Roosevelt signed a series of orders which prohibited the nation's banks from paying out gold.

That same year, the United States Mint in Philadelphia struck 445,500 Double Eagles, but they were never issued. Instead all but 500 of the Double Eagles were placed into the Mint's vault and the remaining coins were held by the Mint's cashier. By 1937, all of the 1933 Double Eagles held at the Philadelphia Mint were supposed to have been melted. This was not the case as some coins were transferred among collectors, which prompted an investigation by the Secret Service in 1944. The Secret Service recovered a small number of the 1933 Double Eagles and determined that they had been stolen from the Mint by George McCann, who was the Mint's cashier from 1934 to 1940. The Secret Service also concluded that the coins had been distributed by Israel Switt, a Philadelphia merchant, who was also Joan Langbord's father.

Since 1944, the United States has attempted to locate and recover all extant 1933 Double Eagles. The only exception has been a 1933 Double Eagle sold to King Farouk of Egypt on 1944 and later acquired in 1995 by Stephen Fenton, an English coin dealer. When Fenton attempted to resell that coin to a collector in New York, the government seized it and a protracted legal dispute ensued. The government agreed to resolve its dispute with Fenton because the Treasury Department had improvidently issued an export license for the coin when it was sold to King Farouk in 1944. The Fenton-Farouk coin was sold at auction in 2002 for $7,590,020 and the net proceeds were divided equally between Fenton and the Government pursuant to their settlement agreement. A year after the auction, Joan Langbord allegedly discovered ten 1933 Double Eagles in a family safe-deposit box. Her attorney, Barry Berke, who had also represented Fenton in his dispute, contacted the Mint in an effort to resolve the Langbords' claim in the same way. After a meeting with Mint officials, the Langbords agreed to turn the coins over for authentication but reserved "all rights and remedies." The Mint took possession of the ten 1933 Doubles Eagles in 2004 and authenticated them in 2005, but then refused to return them to the Langbords.

The Langbords then brought suit in the United States District Court for the Eastern District of Pennsylvania, alleging violations of the United States Constitution, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the Administrative Procedure Act, as well as common law torts. The District Court issued a split decision. It found that the Mint violated the Fourth and Fifth Amendments in refusing to return the coins. But it ruled in favor of the Government's declaratory judgment claim that the coins "were not authorized to be taken from the United States Mint and that therefore, as a matter or law, all of the 1933 Double Eagles remain property belonging to the United States." It ordered the Government to initiate judicial forfeiture proceedings to compensate for its Constitutional violations. A jury found in favor of the Government. The Langbords prevailed on appeal to the Third Circuit, but the Court vacated the panel opinion and agreed to hear the case en banc.

The en banc Court found that the Government's forfeiture action was not time-barred. Under CAFRA, any person claiming property seized in a nonjudicial forfeiture proceeding may file a claim with the appropriate official after the seizure. The government must then file a complaint for forfeiture no later than 90 days after a claim has been filed. If the government does not file a complaint for forfeiture, it must release the property and take no further action to effect the civil forfeiture of the property. The Court rejected the Langbords' argument that their seized asset claim started the ninety-day period for the government to file a complaint. It determined that property must be seized in a nonjudicial forfeiture proceeding before a seized asset claim triggers the ninety-day statutory period. The Mint's retention of the coins did not initiate a nonjudicial forfeiture proceeding because it was a seizure but not a forfeiture. A seizure is the act of taking possession of property by legal right or process and forfeiture involves a transfer of title from one party to another. Through a seizure the government obtains possession while through forfeiture it obtains ownership of property. As government actors regularly seize property with the intention of returning it, it follows that a seizure alone does not initiate a forfeiture proceeding because it does not implicate the transfer of legal title. In addition, the Court stated that the government had determined that it was not obligated to initiate forfeiture proceedings because it had merely repossessed its own property. As a result, neither the Mint nor any other federal agency took any steps to initiate a nonjudicial forfeiture. In fact, the government had explicitly disclaimed any intent to forfeit the coins, instead choosing to assert its ownership rights.

The Court also affirmed the District Court's declaratory judgment that the Government was the owner of the coins. The Court held that CAFRA only precludes declaratory judgments that affect forfeiture, and in this case the Government was attempting to regain possession of what it believed to be its own property. The Court also determined that the declaratory judgment action fit within the pattern of cases typically decided by a court sitting in equity, as it fits the equitable pattern of an action to quiet title.

The Court rejected the Langbords' arguments that evidentiary errors entitled them to a new trial. The Court found no error in admitting the evidence related to Switt's prior forfeiture, but that portions of both the Secret Service reports about the 1944 investigations and the expert's testimony should have been excluded. However, the Court concluded that those evidentiary errors were harmless. Finally, it rejected the Langbords' last argument that the District Court erroneously instructed the jury on the intent necessary to establish liability under 18 U.S.C. §641. The Court stated that the Supreme Court has held that a conviction under the statute requires a jury to find the criminal intent to wrongfully deprive another of possession of property. The Court determined that the District Court's instructions conveyed exactly this point of law as it instructed the jury that it was required to find that whoever stole or embezzled did so knowingly, defined as exercising a deliberate choice. The Court concluded that the District Court's definition of "knowingly" accorded with its model jury instructions, and was therefore proper.

Judge Rendell, joined by Judges McKee and Krause, dissented. The dissent argued that the Mint's refusal to return the coins was a forfeiture sufficient to start the clock under CAFRA, and that the Government's failure to file a forfeiture action within the 90-day time period barred the later action.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/124574p2.pdf

En Banc: McKee, Chief Judge; Ambro, Fuentes, Smith, Fisher, Chagares, Jordan, Hardiman, Vanaskie, Schwartz, Krause, and Rendell, Circuit Judges

Argument Date: October 14, 2015

Date of Issued Opinion: August 1, 2016

Docket Number: No. 12-4574

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

Counsel: Barry H. Berke, Eric A. Tirschwell, Counsel for Appellants; Zane David Memeger, Robert A. Zauzmer, Jacqueline C. Romero, Nancy Rue, Counsel for Appellees

Author of Opinion: Circuit Judge Hardiman

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/05/2016 01:50 PM     3rd Circuit     Comments (0)  

August 3, 2016
  Sixth Circuit: Google wins $19.2 trillion case -- internet search providers protected under the CDA
Case: O'Kroley v. Fastcase

Area of law: Internet law; Communications Decency Act

Issue: Can an internet search company be held liable for how it presents its search results when its practices caused a user to see his name tied to a child-indecency case that he was never involved in?

Brief summary: O'Kroley looked himself up on Google.com and found results seeming to tie him to a child-indecency case that he had no connection with. The objectionable information came from a third-party case-listing service: Fastcase, Inc. O'Kroley sued Fastcase and the search-engine giant Google for libel and invasion of privacy. The district court rejected O'Kroley's claims as a matter of law, holding that Google could not be held liable for how it displays search results. The Sixth Circuit affirmed, reasoning that the Communications Decency Act immunizes internet search-engine companies like Google from suits that try to treat them as publishers of third-party content.

Extended summary: Colin O'Kroley looked himself up on Google.com. The Google search-results page showed O'Kroley's name in a case caption just below a Texas Advance Sheet entry, published by Fastcase Inc., for an indecency-with-a-child case. O'Kroley had never been involved in a child-indecency case, yet anyone who viewed the Google results without clicking on the link would have seen the O'Kroley v. Pringle case listed immediately after a reference to indecency with a child.

Claiming he'd suffered severe mental anguish, O'Kroley sued for $19.2 trillion based on a number of legal theories, including libel and invasion of privacy. The district court held, as a matter of law, that the Communications Decency Act applied here. Under the Act, internet search providers like Google are immunized from claims that seek to treat them as publishers of third-party content.

O'Kroley, representing himself, appealed. The Sixth Circuit affirmed, holding that the district court was correct and that the Communications Decency Act applied. The Sixth Circuit reasoned that because Google's internet search engine gives multiple users access to computer servers, it did not publish or speak these allegedly defamatory statements on its website. Google could not be held liable for merely providing server access and reproducing a third party's allegedly defamatory text. As an internet search provider, Google was immune.

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/16a0172p-06.pdf

Panel: SUTTON and COOK, Circuit Judges; HOOD, District Judge. (The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.)

Date of issued opinion: July 22, 2016

Docket number: 15-6336

Decided: July 22, 2016


Counsel: ON BRIEF: Eric P. Schroeder, Jacquelyn N. Schell, BRYAN CAVE LLP, Atlanta, Georgia, Rob S. Harvey, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville, Tennessee, Brian M. Willen, Jason B. Mollick, WILSON SONSINI GOODRICH & ROSATI, P.C., New York, New York, for Appellee Google. Scot M. Graydon, OFFICE OF THE TEXAS ATTORNEY GENERAL, Austin, Texas, for Texas Court Appellees. Colin O'Kroley, Bon Aqua, Tennessee, pro se.

Author of opinion: SUTTON, Circuit Judge.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Edited: 08/03/2016 at 12:13 PM by Mark Cooney

    Posted By: Mark Cooney @ 08/03/2016 11:58 AM     6th Circuit     Comments (0)  

August 2, 2016
  Pursuing America's Greatness v. FEC
Headline: D.C. Circuit strikes FEC regulation restricting unauthorized political committees' use of candidates' names

Area of Law: First Amendment

Issue Presented: Whether an FEC regulation barring unauthorized political committees from using candidates' names in support of candidates but permitting unauthorized political committee use of candidates' names against candidates violates the First Amendment.

Brief Summary: Pursuing America's Greatness (PAG), an unauthorized political committee supportive of presidential candidate Mike Huckabee, sought to use Huckabee's name on its website and social media pages in apparent violation of an FEC regulation, 11 C.F.R. § 102.14(a), which allowed unauthorized political committees to use candidates' names against but not in support of, political campaign projects. PAG sought a preliminary injunction on APA and First Amendment grounds. The United States District Court for the District of Columbia denied PAG's motion, and PAG timely appealed.

The United States Court of Appeals for the District of Columbia Circuit reversed on First Amendment grounds and remanded with instructions that the district court enter the preliminary injunction. The court first decided that the challenged rule was a ban on speech, rather than a disclosure requirement, because it prevented PAG from conveying information to the public. The court next concluded that the rule was a content-based restriction because it drew distinctions on its face based on whether PAG sought to communicate support or lack of support for a candidate. Following the Supreme Court's decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the court concluded that where, as here, the rule by its terms discriminates based on content, a court must apply strict scrutiny even where the government articulates the benign motive of avoiding voter confusion. Assuming that preventing voter confusion was a compelling state interest, the court concluded that the FEC had not shown that its speech ban was the least restrictive means of achieving that interest. The court noted that the FEC had not demonstrated that use of disclaimers in place of the overall ban would be less effective at curing fraud or abuse and concluded that, where the record is silent as to the comparative ineffectiveness of a far less burdensome alternative, the burdensome restriction could not withstand strict scrutiny.

Having found a likely First Amendment violation, the court next concluded that PAG had demonstrated likely irreparable injury and that the public's interest in protecting First Amendment rights outweighed any interest in continued enforcement of the regulation.

For the full text of the opinion, please visit https://www.cadc.uscourts.gov/internet/opinions.nsf/BE823FAEEAD9111185258003005090F3/$file/15-5264-1628137.pdf.

Panel: Griffith, Kavanaugh, and Randolph

Author of Opinion: Circuit Judge Griffith

Argument Date: February 23, 2016

Date of Issued Opinion: August 2, 2016

Docket Number: No. 15-5264

Decided: Reversed and remanded.

Counsel: Jason Torchinsky for Appellant. Charles Kitcher, Daniel A. Petalas, Kevin Deeley, and Erin Chlopak for Appellee.

Circuit: D.C. Circuit

Case Alert Author: Elizabeth Earle Beske

    Posted By: Ripple Weistling @ 08/02/2016 02:49 PM     DC Circuit     Comments (0)  

  Weinstein v. Islamic Republic of Iran
Headline: D.C. Circuit rules courts may not compel a third party to transfer countries' IP addresses and Internet domain names to satisfy a judgment under FSIA

Area of Law: Foreign Sovereign Immunities Act

Issue(s) Presented: Whether the parties who hold unsatisfied money judgments against state sponsors of terrorism may attach those countries' IP addresses and top level Internet domain names as a means of satisfying those judgments.

Brief Summary: Appellants, victims of terrorist attacks and their family members, hold substantial unsatisfied money judgments against Iran, North Korea and Syria, arising out of suits brought against those nations under the Foreign Sovereign Immunities Act (FSIA). In an attempt to collect on these judgments, Appellants served writs of attachment on the Internet Corporation for Assigned Names and Numbers (ICANN), a third party entity, for those countries' country-coded top level Internet domain names (ccTLDs) and supporting IP addresses, as well as subpoenas duces tecum seeking additional information regarding those data. ccTLDs are the part of an Internet address following the "dot" that identifies the geographic association of the address. For example, in the web address of McGill University in Montreal, "mcgill.ca,".ca is the ccTLD for Canada. They are essential to accessing Internet addresses. ICANN is a California non-profit that performs several functions essential to the functioning of the Internet, including selecting and approving qualified entities to operate Internet top level domain names (TLDs). As relevant here, it manages Internet domain names. Put simply, Appellants sought to assume control of Internet domain names for Iran, North Korea, and Syria as a means to collect on the outstanding judgments.

ICANN moved to quash the writs, arguing that the data Appellants sought was not property subject to attachment, that the data were not owned by the defendant countries, and that ICANN lacked the unilateral authority to transfer that data. The U.S. District Court for the District of Columbia, applying D.C. law in accordance with Federal Rule of Civil Procedure 69(a)(1), held that ccTLDs were not "goods, chattels [or] credits" within the meaning of the D.C. Code, and Weinstein appealed.

The U.S. Court of Appeals for the District of Columbia Circuit affirmed the ruling on other grounds. As a preliminary matter, the court concluded that the terrorist activity exception to FSIA immunity allowed Appellants to pursue attachments of the ccJDs, finding that once a party obtains a judgment under section 150A of FSIA, which applies to state sponsored terrorism, section 1610(g) strips execution immunity from all of the defendant sovereign's property. However, the court found that there were enormous third party interests at stake in ordering ICANN to cede management of ccTLDs to Appellants and no way to execute on the judgment Appellants sought without impairing those interests. The court concluded that the management of Internet domain names relies on a complex network of interlinked technology and voluntary international agreements and that bypassing the normal process of registering domain names by forcing ICANN to transfer the ccTLDs at issue would not only jeopardize ICANN's role but also potentially undermine the stability and interoperability of the entire process.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...94AE/$file/14-7193.pdf.

Panel: Garland, Henderson, Randolph

Argument Date: January 21, 2016

Date of Issued Opinion: August 2, 2016

Docket Number: 14-7193

Decided: Affirmed on different grounds.

Counsel: Meir Katz, Robert J. Tolchin, Steven T. Gebelin, Scott M. Lesowitz, for appellants.

Noel J. Francisco, Tara Lynn R. Zurawski, and Ryan J. Watson for appellee.

Author of Opinion: Henderson

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/02/2016 02:38 PM     DC Circuit     Comments (0)  

  United States of America v. Robert Menendez - Third Circuit
Headline: District Court did nor err in refusing to dismiss Senator Menendez's indictment under the Speech or Debate Clause

Area of Law: Constitutional Law

Issue(s) Presented: Did the District Court err in refusing to dismiss Senator Menendez's indictment for soliciting and accepting gifts from Dr. Melgen and in exchange using the power of his office to influence enforcement actions against Dr. Melgen and to encourage the State Department and Customs and Border Patrol to intervene on his behalf in a contract dispute with the Dominican Republic?

Brief Summary:

In 2015, a federal grand jury indicted United States Senator Robert Menendez of New Jersey for soliciting and accepting numerous gifts from his friend Dr. Salomon Melgen. The indictment alleged than in exchange for the gifts, Senator Menendez used the power of his office to influence an enforcement action by the Centers for Medicare and Medicaid Services and to encourage the State Department and the U.S. Customs and Border Patrol to intervene on Dr. Melgen's behalf in a multi million contract dispute with the Dominican Republic. The Third Circuit affirmed the denial of his motion to dismiss the indictment. It held that the ruling that his efforts to intervene on behalf of Dr. Melgen were not legislative acts protected by the Speech and Debate clause, was not clearly erroneous. The Court also rejected Menendez's argument that the charges under the Federal Ethics Act violated the separation of powers doctrine.

Extended Summary:

The twenty-two count Indictment of Senator Menendez alleged that in 2009, the Centers for Medicare and Medicaid Services (CMS) suspected that Dr. Melgen, a Florida-based ophthalmologist, had overbilled Medicare for $8.9 million from 2007 to 2008 by engaging in a prohibited practice known as "multi-dosing." Medicare policy required that each patient who was taking the drug Lucentis be treated using a separate vial of the drug. However, Dr. Melgen routinely used the solution from a single vial to treat multiple patients. As he was reimbursed as if he used a separate vial for each patient, CMS believed Dr. Melgen was paid for more vials of the drug than he actually used.

The indictment avers that, before CMS began formal proceedings against Dr. Melgen, Senator Menendez instructed his Legislative Assistant to call the doctor about "a Medicare problem we need to help him with." Both Menendez's Legislative Assistant as well as his Deputy Chief of Staff called Dr. Melgen twice regarding the matter. Once CMS formally notified Dr. Melgen that it may seek reimbursement for the overbilled drugs, the Deputy Chief of Staff emailed the Legislative Assistant advising, "I think we have to weigh in on Dr. Melgen's behalf... to say they can't make him pay retroactively." Senator Menendez's staff continued to work with Dr. Melgen's lobbyist on the CMS dispute and arranged for the Senator to speak with the then-acting Principal Deputy Administrator and Director of CMS. The conversation did not resolve Dr. Melgen's dispute and the senator directed his Chief of Staff to "determine who has the best juice at CMS and the United States Department of Health and Human Services (HHS)."

In 2012, Senator Menendez discussed multi-dosing with Marilyn Tavenner, the then-acting Administrator of CMS. Evidence in the record suggests they met to discuss her nomination to become the permanent administrator of CMS. To prepare for the meeting, the Senator met with Dr. Melgen's lobbyist and during the meeting he pressed Ms. Tavenner about multi-dosing and advocated on behalf of the position favorable to Dr. Melgen. However, there is no evidence that there was mention of Dr. Melgen or his case during this meeting. A follow-up call between the Senator and Tavenner took place a few weeks later. Before the phone call, Dr. Melgen's lobbyist prepared a memorandum titled "Talking Points: CMS Policy," which was incorporated into a separate memorandum prepared for the Senator. The memorandum stated that the subject of the call was to discuss the issue of Medicare reimbursement when a physician multi-doses from a single dose vial, but also made several specific references to Dr. Melgen's case such as "we're talking about payments made in 2007-2008." However, there is no evidence that Senator Menendez mentioned Dr. Melgen by name to Ms. Tavenner. During the call, Ms. Tavenner stated that CMS would not alter its position on multi-dosing and Senator Menendez then threatened to raise the issue of multi-dosing directly with Kathleen Sebelius, the then-Secretary of HHS who oversaw CMS.

A week later, a meeting took place among Senators Reid and Menendez and Secretary Sebelius. The Senator met with Dr. Melgen's lobbyist before the meeting and received a summary of the latest developments in Dr. Melgen's case. During the meeting, Senator Menendez advocated on behalf of Dr. Melgen's position on the dispute, focusing on his specific case and asserting unfair treatment of it. An administrator who accompanied Secretary Sebelius to this meeting told the FBI he did not recall anyone mentioning Dr. Melgen by name, but said it was clear to him that the Senators were talking about Dr. Melgen as his case was an isolated issue as opposed to a general problem. Secretary Sebelius told Senator Menendez that because Dr. Melgen's case was in the administrative appeals process, she had no power to influence it.

In February 2012, Dr. Melgen obtained ownership of a contract held by a company in the Dominican Republic named ICSSI. The contract gave ICSSI the exclusive right to install and operate X-ray imaging equipment in Dominican ports for up to 20 years and required all shipping containers to be X-rayed at a tariff of up to $90 per container. ICSSI and the Dominican Republic disputed the validity of the contract and began to litigate this issue. A former Menendez staffer who worked for Dr. Melgen requested a phone call with Assistant Secretary of State William Brownfield to discuss the matter. A State Department official reported to the Assistant Secretary that the former staffer had "dropped the name of Sen. Menendez pretty squarely as having an interest in the case." The staffer later met with the Assistant Secretary and referenced New Jersey connections to the dispute. Senator Menendez also met with Assistant Secretary Brownfield about U.S. policy relating to Dominican port security. At the meeting, the Senator advocated for Dr. Melgen's interest in his foreign contract dispute, expressed dissatisfaction with the State Department's lack of initiative in the case and threatened to call a hearing if there was no solution.

In addition, the indictment alleged that under the Ethics Act, Senators are required to file with the Secretary of the United States' Senate, an annual financial disclosure form reporting income, gifts, and financial interests from the prior calendar year. Senator Menendez did not report gifts, which Dr. Melgen and his companies gave him, including private, chartered, and first-class commercial flights, a car service, and hotel stays in Paris and Punta Cana. The Indictment also claims that the Senator engaged in conduct "in the district of New Jersey and elsewhere" to falsify, conceal, and cover up those allegedly reportable gifts."

A federal grand jury charged Senator Menendez and Dr. Melgen in April 2015. The 22-count indictment charged that from 2006 to 2013 Menendez solicited and accepted numerous gifts from Melgen, and in exchange used the power of his office to influence the enforcement action against Dr. Melgen by CMS and to encourage the State Department and Customs to intervene on Melgen's behalf in the contract dispute with the Dominican Republic. The Senator moved to dismiss the indictment on several grounds, including the Speech or Debate privilege and with respect to count 22 alleging reporting violations under the Ethics Act, the separation of powers among the Branches of Government. The District Court denied the motions to dismiss and the case was then appealed to the Third Circuit, which affirmed.

The Third Circuit rejected Menendez's argument that his actions were protected by the Speech or Debate Clause, holding that the Clause protects legislative acts, and finding that the District Court's determination, that the facts alleged were not legislative, was not clearly erroneous. Although the Clause protects senators from criminal or civil liability based on their legislative acts and creates a privilege against the use of "evidence of a legislative act" in a prosecution or before a grand jury, it does not make them immune from criminal responsibility.

The Court stated that informal efforts to influence the Executive Branch were ambiguously legislative in nature. Senator Menendez's acts were not privileged under the Clause as the acts alleged were essentially lobbying on behalf of a particular party and outside of the constitutional safe harbor. The Court considered the preparations for the challenged acts as evidence that Dr. Melgen was the primary focus of the communications, as the Senator received preparatory memorandums from Melgen's lobbyist. The Court also took into account evidence suggesting that Dr. Melgen and his lobbyist were particularly interested in following up with Senator Menendez in all of the challenged acts.

Although Senator Menendez alleged that the acts were concerned with broader issues of policy and therefore constitutionally protected, the Court held that existence of evidence that supports an alternative finding does not mean that the District Court's findings were clearly erroneous. Here, the District Court's account of the evidence was plausible, as there was sufficient evidence that the focal point of Menendez's meetings with officials was Dr. Melgen and their predominant purpose was to pursue a political resolution to his dispute. That Senator Menendez framed those meetings using the language of policy does not entitle them unvaryingly to Speech or Debate protection. As a result, the Third Circuit affirmed the District Court's conclusion that the Speech or Debate Clause does not protect any of the challenged acts.

The Court also rejected Menendez's argument that Count 22 of his indictment violated the separation of powers. Menendez argued that the Ethics Act is unconstitutional as applied to the Senate because the Constitution's Rulemaking Clause commits the power to set and enforce ethical standards for Senators to the Senate alone. As a result, the executive branch may not punish any conduct regulated by the Ethics Act, because the Senate had incorporated it into Senate Rule 34. The Court held that Rule 34 allows the Senate to punish Ethics Act violations; it does not undermine the Executive Branch's authority to prosecute a Senator for those violations. Menendez also alleged that Count 22 was incapable of being decided by a court because it required the Judicial Branch to resolve ambiguities in the Senate Rules. However, the Court rejected said argument stating that Senator Menendez had not identified any particular Senate Rule that would necessarily be interpreted in the course of his prosecution, let alone one that is so vague as to be non-justiciable. Menendez also argued that his Ethics Act disclosures are protected legislative acts under the Speech or Debate Clause. The Third Circuit ruled that Ethics Act filings are not legislative acts protected by the Speech or Debate Clause as they are not "an integral part of the deliberate and communicative processes by which members participate in committee and Senate proceedings."

The Court also rejected Menendez's challenge to venue for Count 22, finding he had failed to pursue the argument in his brief and there was no abuse of discretion in rejecting the challenge below.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153459p.pdf

Panel: Ambro, Jordan and Scirica, Circuit Judges

Argument Date: February 29, 2016

Date of Issued Opinion: July 29, 2016

Docket Number: No. 15-3459

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

Counsel: Raymond M. Brown, Scott W. Coyle, Abbe David Lowell, Christopher D. Man, Jenny R. Kramer, Stephen M. Ryan, Counsel for Appellant; Joseph P. Cooney, Peter M. Koski, Monique Abrishami, Amanda R. Vaughn, Counsel for Appellee

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/02/2016 11:42 AM     3rd Circuit     Comments (0)  

  Jane Doe v. Alan Hesketh--Third Circuit
Headline: Child pornography victim entitled to pursue civil damages suit even though she had previously received restitution from her victimizer

Area of Law: Damages, Civil Procedure

Issue(s) Presented: Did the District Court err in dismissing a child pornography victim's civil suit for damages against her victimizer because she had previously received a restitution award for the criminal offense?

Brief Summary:

Plaintiff Jane Doe was sexually abused for five years by her adopted father, Mathew Mancuso. The sexual abuse was documented via photographs and videos that were then distributed through online chat rooms. Mancuso was eventually charged with sexual exploitation of a minor and possession of child pornography. Mancuso pled guilty to sexual exploitation and, as part of his plea agreement, paid $200,000 in mandatory restitution to Doe.

Doe later sued Mancuso under a federal statute that provides a civil right of action to victims of several federal crimes. She sought damages for his possession and distribution of child pornography depicting her. The District Court dismissed her complaint, asserting that her receipt of restitution barred her civil claim against Mancuso.

The Third Circuit reversed the District Court's dismissal, holding that the civil right of action provided by the statute is available to "any person" who, while a minor, was victim of a violation of a predicate statute resulting in personal injury. In addition, it concluded that the statute does not limit the availability of the civil right of action to cases where the victim has not been compensated by a restitution order. The Court also determined that collateral estoppel did not apply because Doe was not a party to Mancuso's prior criminal proceeding, not in privity with a party, and did not have a full and fair opportunity to litigate the question of her damages.


Extended Summary:

The plaintiff-appellant Jane Doe was adopted by defendant-appellee Mathew Mancuso when she was five years old. Over a period of five years, Mancuso sexually abused Doe and documented said abuse through photographs and videos. This material was then distributed through online chat rooms in exchange for media that the documented the sexual abuse of other children. Mancuso was eventually arrested after law enforcement investigations identified him as Doe's abuser. A federal grand jury indicted Mancuso on the charges of sexual exploitation of a minor and of possession of material depicting the sexual exploitation of a minor. Mancuso entered into a plea agreement, pleading guilty to sexual exploitation while the government dismissed the count of possession of child pornography. However, in the agreement Mancuso acknowledge his responsibility for possession of child pornography and agreed to pay mandatory restitution to Doe in the amount of $200,000.

Doe later filed a civil suit against fourteen purported class representative defendants in District Court, including Mancuso. She sought damages against Mancuso for his possession and distribution of child pornography depicting her, under a federal statute that provides a civil right of action in federal district court to victims of several federal crimes. In District Court, Mancuso argued that her prior receipt of restitution in his criminal case barred Doe's civil claim against him because the sentencing judge intended to fully compensate Doe for both the convicted and dismissed charges in his indictment. The District Court agreed with Mancuso and granted his motion to dismiss.

The Third Circuit reversed, holding that the text of the statute provides a civil right of action to "any person" who, while a minor, was victim of a violation of a predicate statute resulting in personal injury. It concluded that the text in no way limits the availability of the civil right of action to cases in which a victim has not been compensated in the past by a restitution order. This construction of the statute is consistent with Congress's remedial scheme for child victims of sex crimes, as procedures governing the award of mandatory restitution provide that "a conviction of a defendant for an offense involving the act giving rise to an order of restitution shall estop the defendant from denying the essential allegations of that offense in any subsequent Federal civil proceeding brought by the victim."

The Court stated that the legislative history and possible Congressional purposes for providing the civil action supported the plaintiff. Congress may have wanted to give victims a chance to prove a higher level of damages than that which a sentencing court found during the limited fact-finding proceedings of sentencing. During sentencing a victim's participation is limited, while a civil action allows victims to fully litigate the question of damages in front of a jury. By providing procedures for later civil suits, Congress may also have wanted to shield victims from participating in the criminal sentencing of their victimizers while the victims are so close in time to the damaging effects of the offense. Statements made by legislators suggest that the law's general purpose is to provide both compensation to child pornography victims and a measure of deterrence to possessors and distributors of child pornography. The Third Circuit stated that its construction of the statute to allow a victim who has received criminal restitution to bring a civil suit furthers these goals.

The Third Circuit rejected the argument that collateral estoppel barred Doe's claim. The Court concluded that Doe was neither a party to Mancuso's prior criminal proceeding nor in privity with a party, and did not have a full and fair opportunity to litigate the question of her damages. During sentencing, the government was the party that advocated for its desired level of restitution. As Doe was not a party to the prior criminal sentencing proceeding, she had limited opportunity to influence the process, and therefore to litigate the question of damages. As a result, collateral estoppel did not prevent Doe from litigating the question of her damages based on Mancuso's criminal conduct.


The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151381p.pdf

Panel: Greenaway, Jr., Scirica, and Roth, Circuit Judges

Argument Date: October 28, 2015

Date of Issued Opinion: July 5, 2016

Docket Number: No. 15-1381

Decided: Reversed and remanded

Case Alert Author: Cynthia C. Pereira

Counsel: Sidney L. Moore, III, Counsel for Appellant; Stanley W. Greenfield, Counsel for Appellee

Author of Opinion: Circuit Judge Greenaway

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/02/2016 09:25 AM     3rd Circuit     Comments (0)  

  In Re: Nickelodeon Consumer Privacy Litigation - Third Circuit
Headline: Class of children has claim of intrusion upon seclusion against Viacom and Google but dismissal of other wiretap and computer claims is upheld.

Area of Law: Cyber Law

Issue(s) Presented: Did the District Court err dismissing a class action suit against Viacom and Google under the Federal Wiretap Act, the California Invasion of Privacy Act, the Federal Stored Communications Act, the New Jersey Computer Related Offenses Act, the Video Privacy Protection Act, and Intrusion upon Seclusion?

Brief Summary:

In this multidistrict class action claim, children younger than 13 alleged that defendants, Viacom and Google, unlawfully collected their personal information on the Internet. Viacom owns the Children's television station Nickelodeon and also operates Nick.com, a website geared towards children that offers streaming videos and interactive games. The plaintiffs alleged that Viacom and Google unlawfully used cookies to track children's web browsing and video watching habits on Viacom's websites, with the purpose of selling targeted advertising based on users' web browsing.

The Third Circuit affirmed dismissal of most of the plaintiffs' claims, but vacated dismissal of the claim for intrusion upon seclusion against Viacom. Plaintiffs' wiretapping claim failed because, under the court's previous holding in Google, companies that place cookies on a computing device are parties to any communications that they acquire. Like the federal wiretapping statute, the California Invasion of Privacy Act does not apply where the alleged interceptor was a party to the communications. The Federal Stored Communications Act claim fails because, under Google, personal computing devices are not protected. The New Jersey Computer Related Offenses Act claim fails because the plaintiffs did not allege the kind of injury that the statute requires, which is damage to business or property. The Video Privacy Protection Act claim fails because the Act permits plaintiffs to sue only a person who discloses such information, not a person who receives such information. However, the Court held that in regards to Viacom, the plaintiffs adequately alleged a claim for intrusion upon seclusion. The plaintiffs successfully alleged an intentional intrusion, an invasion of their privacy by Viacom, and that the intrusion on their privacy was highly offensive to the ordinary reasonable person.

Extended Summary:

In this multidistrict consolidated class action, plaintiffs were children younger than 13 who alleged that the defendants, Viacom and Google, unlawfully collected personal information about them on the Internet, such as what webpages they visited and what videos they watched on Viacom's websites. Viacom owns the Children's television station Nickelodeon and also operates Nick.com, a website geared towards children that offers streaming videos and interactive games. When a child registers to use Nick.com, the child provides his or her birthday and gender to Viacom and chooses a username and password. However, the plaintiffs asserted that Viacom's registration form included a message stating: "Hey grown-ups: We don't collect any personal information about your kids. Which means we couldn't share it even if we wanted to."

The plaintiffs alleged that Viacom and Google unlawfully used cookies to track children's web browsing and video watching habits on Viacom's websites. They claimed that the defendants collected information about children through: Viacom placing its own first-party cookie on the computers of persons who visit its websites; Google placing third-party cookies on the computers of persons who visit Viacom's websites; and Viacom providing Google with access to the profile and other information contained within Viacom's first-party cookies. In the aggregate, the plaintiffs claimed that Viacom disclosed to Google, and Google collected and tracked children's usernames, genders, birthdates, IP addresses, browser settings, unique device identifiers, operating systems, screen resolution, browser versions, and web communications. The plaintiffs alleged that the purpose of gathering this information was to sell targeted advertising based on users' web browsing. Plaintiffs raised six claims of violations of the Wiretap Act, the Stored Communications Act, the California Invasion of Privacy Act, the Video Privacy Protection Act, the New Jersey Computer Related Offenses Act, and a claim under New Jersey common law for intrusion upon seclusion. The District Court dismissed all of the plaintiffs' claims.

A previous Third Circuit opinion, In re Google Inc. Cookie Placement Consumer Litigation, addressed various of the plaintiff's claims. The Wiretap Act does not make it unlawful for a person to intercept electronic communication if the person is a party to the communication. The District Court determined that Google was a party to all communications with the plaintiffs' computers or was permitted to communicate with the plaintiffs' computes by Viacom, which was itself a party to all such communications. The Third Circuit affirmed the District Court's dismissal of plaintiffs' federal Wiretap Act claim, concluding that under Google, companies that place cookies on a computing device are parties to any communications that they acquire.

The Third Circuit also affirmed the District Court's dismissal of plaintiffs' California Invasion of Privacy Act. This act prohibits the interception of wire communications and disclosure of the contents of such intercepted communications. The Court concluded that, as with the federal wiretapping statute, under Google the California act does not apply where the alleged interceptor was a party to the communications. The Third Circuit also affirmed the District Court's dismissal of the Federal Stored Communications Act, holding that, under Google, that Act does not protect personal computing devices. The Third Circuit also affirmed dismissal of claims under the New Jersey Computer Related Offenses Act because the plaintiffs failed to allege damage to business or property as required.

The Third Circuit also upheld dismissal of the claim under the Video Privacy Protection Act, which prohibits the disclosure of personally identifying information relating to viewers' consumption of video-related services. The Court held that the Video Privacy Protection Act permits plaintiffs to sue only a person who discloses such information, not a person who receives such information; and that the Act's prohibition on the disclosure of personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual's video-watching behavior. The Court concluded that the kind of disclosures at issue in the case, involving digital identifiers like IP addresses, fell outside the Act's protections.

The Third Circuit held that in regards to Viacom, the plaintiffs adequately alleged a claim for intrusion upon seclusion. The plaintiffs claimed that Viacom and Google invaded their privacy by committing the tort of intrusion upon seclusion. They alleged that Viacom explicitly promised not to collect any personal information about children who browsed its websites and then proceeded to do exactly that. The Court found that the plaintiffs successfully alleged an intentional intrusion, an invasion of their privacy by the defendant, and that the intrusion on their privacy was highly offensive to the ordinary reasonable person. These allegations were supported by the fact that Viacom tracked their online behavior without their explicit permission to do so and Viacom's promise to not collect any personal information created an expectation of privacy. In addition, the Court held that the Children's Online Privacy Protection Act, a federal statute that empowers the Federal Trade Commission to regulate websites that target children, does not preempt the plaintiffs' state-law privacy claim.


The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151441p.pdf


Panel: Fuentes, Shwartz, and Van Antwerpen, Circuit Judges

Argument Date: December 8, 2015

Date of Issued Opinion: June 27, 2016

Docket Number: No. 15-1441

Decided: Vacated in part, affirmed in part

Case Alert Author: Cynthia C. Pereira

Counsel: Jason O. Barnes, Douglas A. Campbell, Frederick D. Rapone, Barry R. Eichen, Evan J. Rosenberg, James P. Frickleton, Edward D. Robertson III, Edward D. Robertson, Jr., Mary D. Winter, Mark C. Goldenberg, Thomas Rosenfeld, Adam Q. Voyles, Counsel for Appellants; Alan J. Butler, Marc Rotenberg, Counsel for Amicus Curiae Electronic Privacy Information Center; Jeremy Feigelson, David A. O'Neil, Seth J. Lapidow, Stephen M. Orlofsky, Counsel for Appellee Viacom, Inc.; Colleen Bal, Michael H. Rubin, Tonia O. Klausner, Jeffrey J. Greenbaum, Joshua N. Howley, Counsel for Appellee Google, Inc.; Jeffrey B. Wall, Counsel for Amicus Curiae Chamber of Commerce of the United States of America.

Author of Opinion: Circuit Judge Fuentes

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/02/2016 09:20 AM     3rd Circuit     Comments (0)  

August 1, 2016
  Sixth Circuit overrules itself, denies Detroit Free Press's FOIA request for police officers' booking photos
Case: Detroit Free Press v. United States

Area of law: Freedom of Information Act

Issue: Are newspapers entitled to criminal defendants' booking photos under the Freedom of Information Act?

Brief summary: In 1996, the Sixth Circuit held that the Detroit Free Press was entitled to copies of a criminal defendant's booking photos under the Freedom of Information Act (FOIA), citing the lack of a privacy interest in the photos. Recently, the Free Press sought booking photos of four Michigan police officers who were arrested on bribery and drug-conspiracy charges. The U.S. Marshal Service denied the Free Press's request. The district court ordered disclosure. The Sixth Circuit reversed, overruling its 1996 decision and holding that a criminal defendant does have a privacy interest in his or her booking photos.

Extended summary: Relying on the Sixth Circuit's 1996 holding (Free Press I) that newspapers are entitled to copies of a criminal defendant's booking photos, the Detroit Free Press made a FOIA request to the U.S. Marshal Service seeking booking photos of four Michigan police officers accused of bribery and drug conspiracy.

Because of the Free Press I decision, the Marshal Service had a bifurcated policy for handling FOIA requests for booking photos. It honored requests coming from within the Sixth Circuit but denied requests coming from outside the Sixth Circuit. This continued until the Tenth and Eleventh Circuits disagreed with Free Press I. Those circuits held that booking-photo requests could be denied. So based on the Tenth and Eleventh Circuit decisions, the Marshal Service began denying all FOIA requests for booking photos, including the Free Press's request. The Free Press sued to compel the Marshal Service to release the officers' booking photos.

The district court granted summary judgment in the Free Press's favor. On appeal, the Sixth Circuit, sitting en banc, reversed, holding that individuals "enjoy a non-trivial privacy interest in their booking photos." Therefore, the Court "overrule[d] Free Press I."

The Sixth Circuit noted that under FOIA, the government must operate under the general philosophy that it will make full disclosure of its records. As such, federal agencies must make their records promptly available to any person who asks for them as long as no exemption applies. But an agency may withhold or redact information based on nine statutory exemptions. Here, the Sixth Circuit believed that an exemption did apply: exemption 7(C), which protects against disclosures of information "compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

Under exemption 7(C), the Court reasoned, booking photos were information that had been compiled for law enforcement, and disclosure of these photos could reasonably result in an unwarranted invasion of personal privacy. The Court observed that once released, booking photos would likely be widely circulated on the internet, "hampering the depicted individual's professional and personal prospects." Given the privacy interests at stake, the U.S. Marshal Service could lawfully deny the Free Press's request for booking photos.

Dissent: The dissent, authored by Judge Boggs, argued that in the 20 years since Free Press I was decided, neither the Supreme Court nor Congress chose to correct the Sixth Circuit's 1996 reading of FOIA. As such, the Sixth Circuit's interpretation was still valid. And the dissent feared that the majority's decision would obscure government's most coercive functions: the powers to detain and accuse a suspected criminal. It noted that police "mug shots" give the public insight into police conduct and practices, noting that the photos can even help the public discover cases of police misconduct. And the dissent believed that, at the cost of open government, the privacy offered by the majority's holding is minimal and illusory.

Link to the case: http://www.opn.ca6.uscourts.go...s.pdf/16a0164p-06.pdf

Panel: COLE, Chief Judge; GUY, BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.

Date of issued opinion: July 14, 2016

Docket number: 14-1670

Decided: July 14, 2016

Counsel: Steve Frank, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Robert M. Loeb, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C., for Appellee. ON BRIEF: Steve Frank, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Robert M. Loeb, Thomas M. Bondy, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C., Paul R. McAdoo, AARON & SANDERS PLLC, Nashville, Tennessee, Brian P. Goldman, Cynthia B. Stein, ORRICK, HERRINGTON & SUTCLIFFE LLP, San Francisco, California, Herschel P. Fink, DETROIT FREE PRESS, INC., Detroit, Michigan, for Appellee. Daniel J. Klau, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, Hartford, Connecticut, David Marburger, MARBURGER LAW LLC, Cleveland, Ohio, for Amici Curiae.
Author of opinion: COOK, J., delivered the opinion of the court in which COLE, C.J., and GUY, GIBBONS, ROGERS, SUTTON, McKEAGUE, KETHLEDGE, and WHITE, JJ., joined. COLE, C.J. (pp. 10 - 11), delivered a separate concurring opinion. BOGGS, J. (pp. 12 - 23), delivered a separate dissenting opinion in which BATCHELDER, MOORE, CLAY, GRIFFIN, STRANCH, and DONALD, JJ., joined.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Edited: 08/01/2016 at 11:14 AM by Mark Cooney

    Posted By: Mark Cooney @ 08/01/2016 11:07 AM     6th Circuit     Comments (0)  

July 29, 2016
  American Immigration Lawyers v. Exec. Office for Immigration Review
Headline: D.C. Circuit finds 1) FOIA's privacy protections do not support an across-the-board approach to removing names from disclosed records; 2) FOIA does not permit an agency to redact "non-responsive" information from otherwise responsive records

Area of Law: Freedom of Information Act

Issue(s) Presented:
Whether the Executive Office for Immigration Review may categorically redact the names of immigration judges from records of misconduct complaints before releasing those complaints pursuant to a FOIA request; whether FOIA permits redacting ostensibly non-responsive information from a record otherwise deemed responsive.

Brief Summary: The American Immigration Lawyers Association (AILA) submitted a request to the Department of Justice under the Freedom of Information Act (FOIA) seeking disclosure of records related to complaints against immigration judges. After hearing no response, AILA filed suit in the United States District Court for the District of Columbia. Over the next year, the government disclosed thousands of records but redacted judges' names on the basis that their privacy interests outweighed the public's interest in disclosure under FOIA Exemption 6. The government also selectively redacted information that it deemed non-responsive from records it had otherwise disclosed without citing to any of FOIA's enumerated exemptions. AILA challenged both redactions in court and additionally argued that FOIA's affirmative disclosure obligation required publication of complaint resolution decisions. The district court granted summary judgment to the government, and AILA appealed. The United States Court of Appeals for the District of Columbia Circuit reversed in part and affirmed in part.

The appeals court began with the proposition that FOIA's exemptions are exclusive and must be narrowly construed, with the burden on the agency to establish that requested documents are exempt from disclosure. Examining the government's Exemption 6 argument, the court rejected the district court's categorical approach. The court agreed that all immigration judges have a privacy interest in their names but found that there was no necessary or uniform answer to the question whether the incremental value of disclosing an immigration judge's name in the context of a particular situation outweighed the judge's privacy interest. Rather, the court concluded that the interests on either side of the balancing test would differ depending on context and remanded to the district court so that the government could make a more particularized showing.

Turning to the government's selective redactions, the court observed that the question whether the government could redact non-responsive yet non-exempt material from a record that otherwise responded to a valid request was one of first impression. The court noted that the only FOIA provision allowing the government to withhold responsive records is section 552(b), which sets forth nine statutory exemptions and explicitly allows for selective redaction of exempt information within records provided. The court determined that the redaction of non-exempt information within responsive records found "no home" in FOIA's scheme. The court noted that neither party had addressed the antecedent question of what constitutes a "record" but held that, once an agency itself defines a document or collection of material as a responsive "record," the only information it may redact from the record is that falling within an express statutory exemption.

Finally, the court considered the district court's rejection of AILA's argument that resolutions of complaints against immigration judges constituted "final opinions" made "in the adjudication of cases," which are subject to FOIA's affirmative disclosure requirement. The court concluded that complaint resolutions do not result from an adjudicatory process or reflect a final decision as to the rights of outside parties. The court additionally noted that the affirmative disclosure requirement mandates disclosure only of decisions making law or policy. Complaint resolution decisions, in contrast, set no precedent and have no binding force on the agency or any party other than the individual immigration judge subject to a particular complaint. As such, the court affirmed on this issue.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-5201-1627649.pdf.

Panel: Henderson, Srinivasan, Millett

Argument Date: February 16, 2016

Date of Issued Opinion: July 29, 2016

Docket Number: 15-5201

Decided: Reversed in part, affirmed in part.

Counsel: Julie A. Murray and Allison M. Zieve for appellant.

Javier M. Guzman, R. Craig Lawrence, and Jane M. Lyons for appellee.

Author of Opinion: Srinivasan

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/29/2016 03:22 PM     DC Circuit     Comments (0)  

July 27, 2016
  Sixth Circuit: song no longer controlled by author's son after siblings successfully terminate copyright assignment
Headline: Song "I'll Fly Away" no longer controlled by author's son after son's siblings successfully terminate copyright assignment in his favor.

Case: Brumley v. Albert R. Brumley & Sons, Inc.

Area of law: intellectual property, Copyright Act, contract law

Issue presented: Can descendants terminate a songwriter's copyright assignment to his son, so that royalties will be shared among all the songwriter's descendants, when the song was first assigned under the former Copyright Act but was later assigned again (to the same son) under the current Copyright Act?

Brief summary: A songwriter assigned his copyrights to his son. After he died, his widow signed a bill of sale purporting to re-memorialize the earlier assignment to the son. Because the song was a long-time religious favorite that was also covered by famous performers, the son's siblings tried to terminate the assignment so that all the children could share royalties. The Sixth Circuit held that the siblings complied with the current Copyright Act and thus effectively terminated the songwriter's earlier assignment to the son. The court reasoned that a majority of the songwriter's descendants had exercised their termination rights under the current Copyright Act's provision allowing one assignment termination. Thus, all six of the songwriter's children (or their spouses or children) will now share equally in the royalties.

Extended summary: Late in the 1920s, Albert Brumley composed "I'll Fly Away" while working in cotton fields in Oklahoma. He sold this song to a publishing firm that he later bought. Once acquired, he and his wife, Goldie, ran this publishing firm until they sold the firm and the firm's music catalog to two of their sons, Robert and William, in the mid-1970s. After the firm's sale and Albert's death, Goldie gave Robert and William a bill of sale that re-assigned and retransferred Albert's works, copyrights, and rights to future copyright renewals for one dollar and other consideration.

Twenty years after Goldie's death, the Brumley siblings fought over the royalties for "I'll Fly Away," which had recently been covered by Johnny Cash and Alison Kraus. In 2008, four Brumley siblings sent a termination notice to Robert intending to cut off his exclusive rights to royalties. The siblings wanted to share the royalties equally. The four siblings recorded their termination notice with the U.S. Copyright Office shortly after serving Robert with his notice.

When Robert challenged the assignment termination, the district court held that Albert had never exercised his termination rights, so they survived him and were transferred to his wife and his descendants. The district court concluded that upon Albert's death, Albert's widow owned a one-half interest in Albert's works, and their children shared the other half interest. Further, the district court concluded that during her ownership, Goldie lacked the power to terminate by herself. A majority of the interest-holders must authorize a transfer; Goldie was not a controlling majority, so her attempted assignment was ineffective.

The Sixth Circuit affirmed, holding that upon Goldie's death, each Brumley child, their spouse, or their child, then controlled a one-sixth share of Albert's interests in his work. The court reasoned that because four of the six children agreed to terminate Robert's exclusive interests in 2008, their termination was valid under the current Copyright Act. As such, Robert Brumley was no longer the sole assignee of his father's song "I'll Fly Away." Instead, all six of Albert Brumley's children - or their spouses or children - will share the royalties equally.

Panel: SILER, SUTTON, and STRANCH, Circuit Judges.

Date of issued opinion: May 16, 2016

Docket number: 15-5429

Decided: May 16, 2016

Decision: Affirmed.

Counsel: ARGUED: Barry I. Slotnick, LOEB & LOEB LLP, New York, New York, for Appellants. Larry L. Crain, CRAIN, SCHUETTE & ASSOCIATES, LLC., Brentwood, Tennessee, for Appellees. ON BRIEF: Barry I. Slotnick, Jonathan N. Strauss, Brittany Schaffer, LOEB & LOEB LLP, New York, New York, for Appellants. Larry L. Crain, CRAIN, SCHUETTE & ASSOCIATES, LLC., Brentwood, Tennessee, for Appellees.

Author of opinion: SUTTON, Circuit Judge.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0118p-06.pdf

    Posted By: Mark Cooney @ 07/27/2016 02:40 PM     6th Circuit     Comments (0)  

July 22, 2016
  Candice Staruh v. Superintendent Cambridge Springs SCI - Third Circuit
Headline: Refusal to admit hearsay confession did not violate defendant's due process right to present a defense to charges she murdered her son.

Area of Law: Due Process

Issue(s) Presented: Did Pennsylvania Courts' refusals to admit a hearsay confession did violate defendant's due process right to present her defense where defendant's mother refused to confess under oath?

Brief Summary:

The day before Candice Staruh's homicide trial, for the killing of her three-year-old son, her mother Lois confessed to the crime to a defense investigator. However, she confessed under circumstances that did not subject her to criminal liability. The Pennsylvania trial court refused to admit Lois's hearsay confession at Candice's trial, as it concluded that it lacked the indicia of trustworthiness that is required under Pennsylvania's Rules of Evidence. The Pennsylvania Superior Court concluded that the trial court's refusal to admit the confession was a proper application of Pennsylvania's Rules of Evidence.

The Third Circuit affirmed the denial of Staruh's subsequent habeas petition, which had asserted that she was denied her due process right to present her defense. The Third Circuit held that Lois's statements had no credibility and she was merely attempting to prevent her daughter from going to jail while at the same time avoid criminal liability for herself.

Extended Summary:

Candice Staruh was charged with the death of her three year old child, Jordan. On October 27, 2003 emergency medical services found Staruh's son Jordan without a pulse. He had bruises all over his body, along with vomit on the floor and in his mouth, face and neck. Staruh claimed that the bruising was caused by prior falls from a stool and horseplay with Jordan's four year old brother Kamden.

A forensic pathologist concluded in an autopsy that the bruises were a mix of older and more recent injuries, and were too severe to have been caused by Kamden. He also found material consistent with duct tape on Jordan's back, and the pattern of bruising on the victim's abdomen and back was consistent with being bound by duct tape. He determined that Jordan's death was caused by blunt force trauma to the head and deemed the manner of death to be a homicide. The police also noted the deplorable hygienic state of the house where Staruh resided with her mother and her three children.

Staruh was arrested and charged with first and third degree murder, aggravated assault, and endangering the welfare of a child. Lois, Candice's mother, was also arrested and pleaded guilty to endangering the welfare of children. At the plea agreement hearing, her attorney stated that Lois was not admit to causing any injury to Jordan, she had only violated her duty of care regarding the condition of her home.

On the eve of Candice's trial, her mother Lois confessed to the crime during an interview with a defense investigator. During this interview, Lois admitted to the investigator that she had abused Jordan by hitting him on the ribs with a metal sweeper pipe numerous times, throwing him against the wall where he would hit his head, and restraining him with duct tape to keep him from getting up during the night. Lois had denied responsibility for the crime for two and a half years. When she confessed she refused to do so under circumstances under which she would have been criminally liable, stating that if she was questioned in court, she intended to invoke her Fifth Amendment privilege. Lois was appointed counsel to represent her in her capacity as witness.

During trial Kamden and the three persons who he made statements to testified for the prosecution. Staruh's defense implied that it was Lois and not Candice who had killed Jordan. The defense elicited testimony from Kamden that he sometimes called Lois "mom" and from Candice's ex-sister-in-law who stated that Lois beat Jordan. Staruh also testified on her own behalf, claiming that Lois abused Jordan and had also abused her as a child. She claimed she was afraid of her mother and had recently been diagnosed with battered woman syndrome. Staruh also testified that on the day that Jordan died, he was on a stool watching cartoons; she laid down for a few seconds and got up when she head him fall. When she went to check on him, Jordan was throwing up and having trouble breathing. Although in her testimony Candice placed full blame for the bruises on her mother, she never identified her mother as the cause of Jordan's death. During trial, Lois stated that she was unwilling to testify and asserted her Fifth Amendment rights.

The trial court refused the defense's request for Lois to assert the Fifth Amendment in presence of the jury and to introduce the statements that Lois had made to the investigator as statements against her penal interests pursuant to Pennsylvania Rule of Evidence 804(b)(3). The trial court concluded that the statements lacked the indicia of trustworthiness required under the rule. The jury found Staruh guilty of third degree murder, aggravated assault, and endangering the welfare of a child and she was sentenced to 18 to 40 years imprisonment.

The Third Circuit upheld the denial of Staruh's habeas petition. It rejected Staruh's argument that hat the Supreme Court's decision in Chambers v. Mississippi, mandated reversal.
The Court compared the indicia in Chambers, which provided considerable assurance of reliability. Each confession in Chambers was made spontaneously to a close acquaintance shortly after the murder had occurred, each was corroborated by other evidence in the case, and each confession was self-incriminatory and against interest.

The Court found that there were no comparable assurances of reliability in Staruh's case. Lois never signed a written confession or indicated intent to be held liable for the murder. She also maintained her innocence for over two and a half years, including under oath at her guilty plea hearing.

It agreed with the Superior Court that Lois' statements had no indicia of credibility, as she was merely hoping to prevent that her daughter be convicted of murder while avoiding criminal liability herself. The Court therefore affirmed the denial of Staruh's habeas petition.



The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151650p.pdf

Panel: Smith, Hardiman, and Nygaard, Circuit Judges

Argument Date:

Date of Issued Opinion: June 30, 2016

Docket Number: No. 15-1650

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

Counsel: Frederick W. Ulrich, Counsel for Appellant; David J. Freed, Matthew P. Smith, Charles J. Volkert, Counsel for Appellee.

Author of Opinion: Circuit Judge Smith

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/22/2016 03:18 PM     3rd Circuit     Comments (0)  

  USA v. Ralph Dennis - Third Circuit
Headline: Defendant entitled to jury instruction on the entrapment defense in reverse sting operation.

Area of Law: Criminal Law

Issue(s) Presented: Was defendant entitled to a jury instruction on an entrapment defense, where he produced evidence that ATF agents induced him to participate in a reverse sting designed to incriminate him?

Brief Summary:


The Third Circuit reversed defendant's conviction for conspiracy to rob a drug stash house and for carrying a gun in the commission of a crime. Defendant argued that Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agents induced him, through a friend, to participate in a reverse sting that was designed to incriminate him and co-conspirators. Dennis's friend induced him to cooperate in the robbery by claiming that he needed to conduct the robbery in order to help his ailing mother. Dennis did not have any previous charges or convictions for robbery or violent crimes. The Court held that the District Court should have given an entrapment instruction on the robbery and gun possession charges, and thus vacated the judgment of conviction and sentence and remanded for a new trial.


Extended Summary:

Defendant Dennis asserted that the district court erred by denying his request to instruct the jury on an entrapment defense and by denying his motion for dismissal asserting outrageous prosecution. Dennis was convicted of conspiracy to rob a narcotics "stash house" and was also convicted of carrying a firearm during the commission of the crime.

Dennis alleged that agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), induced him through a friend, to participate in a reverse sting that was designed to incriminate him and co-conspirators. In June 2012, ATF agents in Camden, New Jersey met with Kevin Burk. Burk is a convicted felon who was facing forgery charges and who was cooperating with law enforcement as a confidential informant. Burk told the agents about the defendant and their long history of committing crimes together. Dennis had many prior arrests.

The ATF instructed Burk to enlist Dennis's help in carrying out a robbery and provided him with a backstory. Dennis initially declined Burk's repeated efforts to enlist Dennis but he finally agreed to help Burk rob a cocaine stash house when Burk told him that the job was necessary to help Burk's mother who had cancer. Burk advised Dennis that the robbery was planned by "Rock," a Mexican drug cartel courier, and that it would yield a street value of $2 million. Later on, Mitchell and Hardee, both acquaintances of Dennis, also agreed to assist in the robbery.

Burk set up the first meeting between the ATF agents, Mitchell and Dennis. Before the meeting Burk advised them that they needed to "play the role" to impress Rock, so that they would be able get the job. During the meeting, Dennis stated that they would have to put down the guards in the stash house and that he would bring two guns. Dennis later testified that he was saying these things solely to impress Rock. He also testified that he did not own a gun.
Rock offered Mitchell and Dennis a chance to back out, which they both declined. During two later meetings, Dennis suggested that they use stun guns to subdue the guards and made it clear that he would not enter the stash house. Rather, Dennis would stay parked outside and would be listening on a cell phone. During the last meeting before the robbery, Burke pressed that it was necessary for Dennis to have a gun in his role as lookout and then provided Dennis with a gun.

On the day of the robbery, the group traveled to a storage facility to prepare for and rehearse the robbery. Rock talked through the details of how the stash house is set up. The group then walked through the robbery and rehearsed how it would unfold. After they had completed the walk-though, ATF agents rushed into the scene and arrested Dennis, Mitchell, and Hardee.

At Dennis's trial, the District Court refused his request for a jury instruction on entrapment. Dennis appealed this denial after his conviction. The Third Circuit concluded that entrapment occurs when a defendant who is not predisposed to commit the crimes does so as a result of the government's inducement. The defendant has the burden of production on two elements: inducement by the government to commit the crime and the defendant's lack of predisposition to commit the crime.

The Court concluded that Dennis met his burden to raise a question about inducement based on the central role that Burk played in getting Dennis to participate in the scheme. Dennis had no known connections to the crimes that the ATF was investigating, and was only targeted after Burk produced his name. In addition, Burk's personal relationship to Dennis contributed to his involvement as it allowed Burk to appeal to Dennis's sympathies based on the story of Burk's sick mother. The Court thus concluded that Burk's efforts combined with the substantial financial payoff that was offered to Dennis exceeded a situation in which the government merely opened up an opportunity for committing a crime.

The Court also found Dennis met his burden of production for the second element, predisposition. Dennis argued that the record contained sufficient evidence to meet his burden that he lacked a predisposition to commit this crime. He focused on the absence of robbery or violent crimes in his criminal history, his testimony of turning away previous opportunities to join Burk in robberies, and expert testimony presented during his trial of his vulnerability to being persuaded due to his low IQ.

The Court held that the timing of the motion did not alter the need for the District Court to refrain from invading the jury's territory. The District Court erred by weighing evidence and by improperly drawing inferences against Dennis on the robbery and firearm charges and that Dennis had presented sufficient evidence to create reasonable doubt about his predisposition to commit these crimes.

The Court also reject the government's harmless error argument, hat because Dennis was still able to proffer all of his evidence on entrapment, the jury was able to weigh the evidence, and it still convicted Dennis. The Court rejected this argument, stating that if Dennis's motion for an entrapment instruction had been granted, the government would have had the burden of disapproving entrapment beyond a reasonable doubt. Therefore, the jury weighed the evidence without considering whether the government carried its burden of proving beyond a reasonable doubt that it did not entrap Dennis.

However, the Court affirmed Dennis's conviction for conspiracy to distribute and possess with intent to distribute. It concluded that his criminal history of convictions for possession and distribution of cocaine and marijuana contradicted Dennis's assertion that he was not predisposed to commit this crime.

The Court further rejected Dennis's argument that the indictment against him should be dismissed on the basis of outrageous prosecution that violated his right to due process. The Court stated that Dennis failed to meet the higher evidentiary burden of showing that the government essentially "created the crime for the sole purpose of obtaining a conviction."


The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/143561p.pdf


Panel: Ambro, Hardiman, and Nygaard, Circuit Judges

Argument Date: November 19, 2015

Date of Issued Opinion: June 24, 2016

Docket Number: No. 14-3561

Decided: Vacated in part, affirmed in part

Case Alert Author: Cynthia C. Pereira

Counsel: Lawrence S. Lustberg, Jillian T. Stein, Benjamin z. Yaster, Counsel for Appellant; Mark E. Coyne, Glenn J. Moramarco, Counsel for Appellee.

Author of Opinion: Circuit Judge Nygaard

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/22/2016 03:15 PM     3rd Circuit     Comments (0)  

July 7, 2016
  Ministry of Defense & Support for the Armed Forces of the Islamic Republic ex rel. Iran v. Frym - Ninth Circuit
Headline: Ninth Circuit rejects Iran's claim of foreign-state immunity from attachment of an Iranian judgment pursuant to exceptions under the Algiers Accords and confirmed the District court's ruling that the judgment qualifies as a "blocked asset" within the meaning of the Terrorism Risk Insurance Act.

Area of Law: National Security Law; Judgments and Liens

Significance: American citizens may collect on valid judgments they hold against the Islamic Republic of Iran ("Iran") for their injuries arising out of terrorism sponsored by Iran.

Issue Presented: Whether, under the Algiers Accords or President Obama's 2012 Executive Order No. 13359, a judgment granted in favor of Iran by a U.S. district court in 1999 qualifies as a "blocked asset" within the meaning of the Terrorism Risk Insurance Act and is therefore attachable for the purpose of enforcing default judgments obtained against Iran on terrorist-related claims.

Brief Summary: Under the Terrorism Risk Insurance Act ("TRIA"), an exception to a foreign state's immunity from attachment of a judgment pursuant to the Foreign Sovereign Immunities Act ("FSIA"), Lien Claimants moved to attach a judgment awarded to the Republic of Iran ("Iran") in 1999 by the U.S. District Court for the Southern District of California. Iran opposed the motion, arguing that a resolution to the Iranian Hostage Crisis (the Algiers Accords) protects the judgment from attachment and that the judgment did not fall within the meaning of a "blocked asset" as defined under TRIA.

The district court granted the attachment, concluding that the Algiers Accords served only to restore Iran's position prior to November of 1979, and as of 1979, Iran lacked an interest in the judgment at issue. The district court also ruled that the judgment constituted a blocked asset for purposes of TRIA pursuant to "President Obama's 2012 Executive Order No. 13359" and "President Bush's 2005 Executive Order No. 13382." The district court alternatively found that a sub-group of the Lien Claimants (the Rubin Claimants) could have attached the judgment pursuant to a terrorism-related judgment exception under 28 U.S.C. § 1610(g).

The Ninth Circuit panel affirmed although the panel declined to address the district court's decision regarding "President Bush's 2005 Executive Order No. 13382" and the terrorism-related judgment exception under 28 U.S.C. § 1610(g). According to the panel, Iran misidentified the asset at issue by arguing that the FISA exceptions applied to Iran's property interest in certain equipment that gave rise to the claim on which Iran procured its judgment. The panel held that the relevant asset at issue was not Iran's property interest in the equipment, but rather Iran's property interest in the judgment, which was not granted until twenty years after the date before which the Algiers Accords may have rendered the judgment immune from attachment. Because both of Iran's arguments premised on its property interest in the equipment rather than its property interest in the judgment, Iran failed to show that the judgment does not constitute a blocked asset within the meaning of TRIA and therefore is immune from attachment.

Extended Summary: The Foreign Sovereign Immunities Act ("FSIA") prohibits a suit against a foreign state and an attachment of its assets to satisfy a judgment. Under 28 U.S.C. § 1605, if state-sponsored-terrorism gives rise to a claim, there is an exception to FISA, which abrogates a foreign state's immunity from judgment. Although § 1605 nullified a foreign state's immunity from judgment, the FISA provision prohibiting the attachment of a foreign state's assets remained intact until 2002 when Congress enacted the Terrorism Risk Insurance Act ("TRIA"). The TRIA provides that when a judgment has been obtained under the FISA exception, "the blocked assets of [the] terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment . . . to satisfy such judgment to the extent any compensatory damages for which such terrorist party has been adjudged liable." "Blocked" assets comprise of assets the United States has "seized or frozen" pursuant to the International Emergency Powers Act ("IEEPA").

In 1977, the Republic of Iran ("Iran") entered into a contract to purchase an air combat maneuvering range system ("ACMR") from an American company, Cubic Defense Systems, Inc. ("Cubic"). In a separate contract, Cubic promised to provide maintenance for the ACMR. By October of 1978, Iran had expended more than $12 million on the $17 million purchase price in addition to payments pursuant to the service contract. By February of 1979, Cubic was prepared to export the equipment to Iran. However, complete performance under both contracts became frustrated after the Iranian revolution distressed the relationship between Iran and the United States. Pursuant to a modified agreement, Iran authorized Cubic to resell the ACMR, the result of which would have either gave Iran the right to partial reimbursement or Cubic entitlement to additional payment. However, when Cubic sold the ACMR to Canada in 1982, Cubic disregarded Iran's demand for an accounting. Consequently, pursuant to arbitration provisions in the contracts, Iran commenced arbitration proceedings with the International Chamber of Commerce (ICC). The ICC awarded Iran $2.8 million in damages, including interest and costs.

In 1991, Claimant France M. Rafi ("Rafi") brought an action against Iran under the state-sponsored-terrorism exception of the FSIA after Rafi's father, former Iran Prime Minister Dr. Shapoir Bakhtiar, was murdered because he opposed the Islamic government. Iran failed to appear, and the district court entered a default judgment against Iran for $5 million. Similarly, in 1997, the Rubin Claimants, a group of individuals who were either injured or whose relatives were injured by a suicide bombing in Jerusalem, brought an action against Iran under the state-sponsored-terrorism exception of the FSIA. Again, Iran failed to appear, and the district court entered a default judgment against Iran and ordered payment of damages that ranged from $2.5 million to $15 million.

In 1999, the U.S. District Court for the Southern District of California confirmed Iran's arbitration award and entered a judgment accordingly. When Cubic deposited the funds with the district court, Rafi and the Rubin Claimants ("Lien Claimants") moved for attachment of the judgment. In opposition to the attachment, Iran argued "(1) that the Algiers Accords, by which the United States and Iran resolved the Iranian Hostage Crisis, required the United States to protect the Cubic Judgment from attachment; and (2) that the Cubic Judgment was in any event not attachable under the TRIA or any other statute."

The district court granted the attachment, concluding that the Algiers Accords served only to restore Iran's position prior to November of 1979, and as of 1979, Iran lacked an interest in the confirmed arbitration award. The district court also ruled that the "Cubic Judgment" constituted a blocked asset under the TRIA because "the Cubic Judgment was blocked pursuant to 'President Obama's 2012 Executive Order No. 13359' and 'President Bush's 2005 Executive Order No. 13382.'" The district court therefore found that attachment of the Cubic Judgment was proper under the TRIA. The district court alternatively found that, pursuant to 28 U.S.C. § 1610(g), "the special attachment provision of the FSIA for creditors holding a Section 1605A terrorism-related judgment against a foreign state," the Rubin Claimants could have attached the Cubic Judgment.

On appeal to the Ninth Circuit, Iran argued that based on a variety of factors, including Iran's payments totaling more than $12 million on a $17 million contract entered in 1978, Iran acquired a property interest in the ACMR prior to November 14, 1979. Iran also argued that President Obama's 2012 Executive Order exempted the ACMR from constituting as a "blocked asset" under TRIA.

To address Iran's property-interest argument, the Ninth Circuit panel referenced the holding in Ministry of Defense & Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, where the Supreme Court distinguished a property interest in an ACMR from a property interest a similarly situated lien claimant had in a judgment enforcing an arbitration award. 556 U.S. 366, 376 (2009). Under Elahi, The panel concluded that Iran's interest in the Cubic Judgment, which arose after the district court confirmed Iran's arbitration award in 1998, was the relevant asset at issue. The panel further concluded that Iran's property interest relevant to the Cubic Judgment was not in the ACMR but rather Iran's demand for an accounting, which did not and could not arise until after Cubic resold the ACMR to Canada in 1982. The panel also rejected Iran's claim that the ACMR was not a blocked asset under TRIA because that argument relies on a faulty premise: that the ACMR, not the Cubic Judgment, was the relevant asset at issue. Accordingly, the panel concluded that the Cubic Judgment constituted a blocked asset under TRIA pursuant to President Obama's 2012 Executive Order.

The panel declined to address the district court's ruling that the Cubic Judgment is not a blocked asset under President Bush's 2005 Executive Order No. 13382. Nor did the panel address the district court's alternative holding that the Rubin Claimants may attach the Cubic judgment under 28 U.S.C § 1610(g). Addressing those issues were unnecessary because neither would have resolved Iran's burden of proving that the Cubic Judgment was not subject to attachment pursuant to TRIA and President Obama's 2012 Executive Order. Therefore, review de novo, the panel affirmed.

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/26/13-57182.pdf

Panel: Before: Dorothy W. Nelson, Consuelo M. Callahan, and N. Randy Smith, Circuit Judges.

Argument Date: February 2, 2016

Date of Issued Opinion: February 26, 2016

Docket Number: 13-57182

Decided: Affirmed

Counsel: Steven W. Keredes (argued), Pasadena, California, for Petitioner-Appellant.

Jonathan R. Mook (argued), DimuroGinsberg, P.C., Alexandria, Virginia; Philip J. Hirschkop, Hirschkop & Associates, Lorton, Virginia, for Claimant-Appellee France M. Rafi.

David J. Strachman (argued), McIntyre Tate LLP, Providence, Rhode Island, for Claimants-Appellees Jenny Rubin, Deborah Rubin, Daniel Miller, Abraham Mendelson, Stuart E. Hersh, Renay Frym, Noam Rozenman, Elena Rozenman, and Tzvi Rozenman.

Stuart F Delery, Assistant Attorney General; Laura E. Duffy, United States Attorney; Sharon Swingle and Benjamin M. Schultz (argued), Attorneys, Appellate Staff Civil Division, United States Department of Justice; Lisa J. Grosh, Assistant Legal Advisor, Department of State; Bradley T. Smith, Chief Counsel, Office of Foreign Assets Control, Department of the Treasury, Washington D.C., for Amicus Curiae United States.

Author of Opinion: Judge D.W. Nelson

Case Alert Author: Andre Clark

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 07/07/2016 07:51 PM     9th Circuit     Comments (0)  

  Miguel Galindo Sifuentes v. P.D. Brazelton - Ninth Circuit
Headline: Avoiding race specific and discriminatory language may help prosecutors survive a Batson motion, even when a prosecutor had a clear agenda to strike prospective black jurors from the jury.

Area of Law: Criminal Procedure, Habeas Corpus, Jury Selection Process

Issue Presented: Whether the California Court of Appeal was objectively unreasonable under "the doubly deferential standard" applied to collateral review of the Batson motions under the Antiterrorism and Effective Death Penalty Act (AEPDA) in affirming the trial court's determination that the prosecutor's reasons for striking the individual jurors were nondiscriminatory and whether the trial court's denial of defendant's request for rebuttal on the first two Batson motions in which five black jurors were excluded constituted an error that resulted in "actual prejudice" towards Sifuentes.

Brief Summary: Defendant Miguel Galindo Sifuentes was convicted of first degree murder. He made three objections during jury selection under Batson v. Kentucky, 476 U.S. 79 (1986). The trial court requested the prosecutor to explain the reasons for excusing the nine black prospective jurors. It determined that the reasons were race neutral and not discriminatory and denied the Sifuentes's request for rebuttal for the first two Batson motions, but granted the third. The California Court of Appeal affirmed the trial court's decision despite recognizing its error in denial of defendant's rebuttal on the motions. The California Supreme Court denied defendant's petition for review. Sifuentes then petitioned for a writ of habeas corpus in federal court. This request was partially granted by the district court. The United States Court of Appeals for the Ninth Circuit reversed the district court's grant of a writ of habeas corpus because after applying the AEDPA, 28 U.S.C. § 2254, doubly deferential standard to the Batson challenges on collateral review the panel found that the state appellate court's holding was not objectively unreasonable in upholding the trial court's determination.

Significance: Sifuentes v. P.D. Brazelton further exemplifies a defendant's uphill battle to prove discrimination in the jury trial selection process, especially on collateral review, because the standards are even higher, while Foster v. Chatman (14-8349) is on the Supreme Court docket for further guidance in dealing with cases involving Batson motions.

Extended Summary: Defendants Miguel Galindo Sifuentes, Ruben Vasquez, and Hai Minh Le were accused of robbing an Outback Steakhouse restaurant in Dublin, California on December 11, 1998. Defendant Vasquez fatally shot Sheriff Deputy, John Monego, after the sheriff arrived at the scene and entered the restaurant. All three defendants fled the scene, but were later apprehended and tried jointly. Sifuentes was charged with first degree murder.
During the jury selection process, the prosecutor used preemptory strikes to remove thirty-three jurors, including nine black prospective jurors. Sifuentes made three objections under Baston and Wheeler. The trial judge determined that Sifuentes made a prima facie case of discrimination and asked the prosecutor to explain his reasoning for excusing the nine black prospective jurors. The trial court concluded that the prosecutor's reasons were racially neutral and not discriminatory. However, the trial court denied defendant's request for rebuttal on the first and second Baston motions, and only allowed rebuttal of the prosecutor's explanations for the third motion. The prosecutor stated that he would have allowed a black female prospective juror, but the defense excused her, and another black male juror failed to appear in court.

Sifuentes and his co-defendants were each convicted of first degree murder. Sifuentes appealed the conviction to the California Court of Appeal. The appellate court affirmed Sifuentes' conviction in January 2006. Thereafter, the California Supreme Court denied review in May 2006. Sifuentes petitioned for a writ of habeas corpus in federal court on the grounds that the state court "unreasonably determined the facts in rejecting his Batson challenge" and on the grounds that the state court "unreasonably applied Supreme Court precedent in precluding him from rebutting the prosecutor's explanations for his strikes." The district court granted relief on Sifuentes' claim as to two jurors, Thompson and Gibson, and rejected the other claims. The state appealed.

The United States Court of Appeals for the Ninth Circuit explained the framework available for review. The panel stated that Batson subjects the State's privilege to strike individual jurors to the commands of the Equal Protection Clause and "forbids the prosecutor to challenge potential jurors solely on account of their race." Batson, 476 U.S. at 89.

Batson applied a burden-shifting approach where first, the defendant must make a prima facie case of purposeful discrimination. Second, the burden then shifts to the State to provide a race neutral explanation for striking individual jurors. Third, the trial court must determine, based on the submissions provided, if the prosecutor showed purposeful discrimination. See Id. at 90. However, this determination is based on evaluation of credibility and is difficult to assess because the court performing the direct review must rely on the trial court's evaluation of prosecutor's intent.

Under a comparative juror analysis if the reasons for striking a black panelist apply to a similar nonblack who is seated, then there is "evidence tending to prove purposeful discrimination." Miller-El v. Dretke, 545 U.S. 231, 241 (2005). However, the prosecutor's evaluation of a prospective juror that may be unfavorable to her side of the case is also a credibility determination, which takes into consideration the tone, demeanor, facial expression, and emphasis, inter alia, of prospective jurors during the voir dire process. See Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir. 1994).

Moreover, the U.S. Supreme Court did not create a bright line test to hold that there was a Batson violation where panelists of different races provided similar answers and only one was selected and the other was not. To reverse the trial court, the reviewing court must find that the trial court's credibility determination is clearly erroneous. Felkner v Jackson, 562 U.S. 594, 598 (2011). The U.S. Supreme Court held that "where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Hernandez v. New York, 500 U.S. 352, 369 (1991).

Nevertheless, in Felkner, the Supreme Court explained that on a federal habeas review, the standard is more deferential. 562 U.S. at 598. The collateral review follows the framework of the AEDPA, 28 U.S.C. § 2254. The AEDPA standard on a Batson claim is whether it is "doubly deferential." Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir. 2012). First, the statute requires determining whether the state court's decision was based on an unreasonable determination of the facts in light of the evidence when evaluating the prosecutor's race-neutral explanations. Mitleider v. Hall, 391 F.3d 1039, 1046-47 (9th Cir. 2004). Second, whether the state appellate court was objectively unreasonable in upholding the trial court's decision. However, even if the collateral review reaches a different conclusion on prosecutor's credibility, the reviewing court "must give the state appellate court the benefit of the doubt," Felkner, 562 U.S. at 598, and "may not grant the habeas petition unless the state court's decision was "not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004).

Under Davis v. Ayala, following the AEDPA standard of review, the "[s]tate-court factual findings, moreover, are presumed correct; the petitioner of the burden of rebutting the presumption by 'clear and convincing evidence.'" 135 S. Ct. 2187, 2199-2200 (2015). Ayala goes further to establish that even if "reasonable minds reviewing the record might disagree about the prosecutor's credibility, on habeas review that does not suffice to supersede the trial court's credibility determination." Id. at 2201. The doubly deferential standard of review to be conducted on federal habeas means "unless the state appellate court was objectively unreasonable in concluding that the trial court's credibility determination was supported by substantial evidence, we must uphold it." Briggs, 682 F.3d at 1170.

Here, the panel evaluated the dismissed jurors, Thompson and Gibson, for which the district court granted relief. Although Thompson and Gibson stated they were "moderately in favor" of the death penalty, they were established to be more in favor of the death penalty than seven of the seventeen selected jurors who answered that they were "neutral;" and the prosecutor dismissed them on other grounds. Thompson was questioned extensively on his religious beliefs and showed a certain level of equivocation in regards to imposing the death penalty. The panel, citing White v. Wheeler, stated that "[a]mbiguity as to whether a juror would be able to give appropriate consideration to imposing the death penalty is a legitimate and reasonable basis for striking a juror." 136 S. Ct. 456, 461 (2015).

Second, in evaluating Gibson's questionnaire, the prosecutor became concerned with Gibson because she also qualified her answers in regards to the death penalty. The prosecutor also commented on Gibson's marital status and profession, which Sifuentes argued was discriminatory. However, the court cited Rice v. Collins, stating that even if the prosecutor relies on one impermissible reason to excuse a juror, no violation will be found if "[t]he prosecutor provided a number of other permissible and plausible race-neutral reasons." 546 U.S. 333, 340-41 (2006). Therefore, applying the doubly deferential standard, the California Court of Appeal's decision that the trial court properly evaluated the credibility of the prosecutor's assertions about Thompson and Gibson were not objectively unreasonable.

The panel evaluated six other excused black jurors struck during the voir dire process. Sifuentes argued that the district court's grant of habeas petition was also supported by the state appellate court's unreasonable determination of the facts in regards to these prospective jurors. After conducting the doubly deferential standard, the panel concluded that the California Court of Appeal did not make an objectively unreasonable determination of facts and that the trial court did not err in concluding that the prosecutor was credible.

Sifuentes also argued that this court should uphold the district court's grant of the habeas corpus petition because the trial court erred when it precluded him from responding to the prosecutor's explanation to two of the Batson objections raised at voir dire. Following Ayala's standard in analyzing this issue, the panel considered the error identified by the California Court of Appeal in the trial court's denial of rebuttal, and "for the sake of argument" the panel recognized it as a federal constitutional error. Similar to Ayala, the question then was whether such error was prejudicial to the defendant. See Ayala, 135 S. Ct. at 2197. In order to overcome the prejudicial outcome, Sifuentes had to show that the evidence on the record raised "grave doubts about whether the trial judge would have ruled differently." Id. at 2203.

The Brecht standard applies to analysis on collateral review where "the court must find that the defendant was actually prejudiced by the error." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). A reasonable possibility that a different outcome would result would not be enough. Ayala, 135 S. Ct. at 2203. On direct appeal the Chapman standard applies which requires "harmless beyond a reasonable doubt." Id. at 2197. In a collateral proceeding, the test for prejudice is more forgiving to the prosecution. Id.

Under Ayala, applying the AEDPA, "a federal habeas court cannot grant relief unless the state court's rejection of his claim (1) was contrary to or involved an unreasonable application of clearly established federal law, or (2) was based on an unreasonable determination of the facts." Id. at 2198. Here, the panel applied the "highly deferential AEDPA standard" because the case required adjudication on the merits. Id. at 2197. The panel concluded that a reasonable jurist could arrive to the conclusion that the California Court of Appeal's decision was not objectively unreasonable. Moreover, Sifuentes was not able to articulate a way in which an opportunity for rebuttal would have made a substantial difference at trial, therefore Sifuentes was not actually prejudiced, and if the court allowed rebuttal, there is no reasonable possibility that the trial judge would have ruled differently. The decision of the district court was reversed and remanded with instructions to dismiss the petition.

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/18/13-17603.pdf

Panel: Before: Diarmuid F. O'Scannlain and Sandra S. Ikuta, Circuit Judges and James A. Teilborg, Senior District Judge.

Argument Date: May 12, 2015, Resubmitted February 10, 2016

Date of Issued Opinion: February 18, 2016

Docket Number:
13-17603

Decided: Reversed and remanded with instructions to dismiss the petition.

Counsel: Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Peggy S. Ruffra, Supervising Deputy Attorney General, John H. Deist (argued), Deputy Attorney General, San Francisco, California, for Respondent-Appellant.

Denis P. Riordan, Donald M. Horgan (argued), Riordan & Horgan, San Francisco, California, for Petitioner-Appellee.

Author of Opinion: Judge S. S. Ikuta

Case Alert Author: David Erghelegiu

Case Alert Supervisor: Professor Ryan T. Williams


    Posted By: Ryan Williams @ 07/07/2016 06:19 PM     9th Circuit     Comments (0)  

  Gonzalez v. U.S. - Ninth Circuit
Headline: Ninth Circuit held that Government is not liable under the Federal Tort Claims Act ("FTCA") when a Federal Agent fails to disclose information to law enforcement.

Area of Law:
Federal Tort Claims Act ("FTCA"); Tort Law

Issue Presented: Whether the discretionary function exception applies - immunizing the Government from liability under the FTCA - where the plaintiff alleges the FBI negligently failed to disclose information to local law enforcement under the Attorney General Guidelines, which provides that the FBI "shall promptly transmit" "serious criminal activity not within the FBI's investigation jurisdiction"?

Brief Summary:
Plaintiff brought a negligence claim, in the U.S. District Court, against the United States under the Federal Torts Claim Act ("FTCA") and sought damages for wrongful death, personal injuries, pain and suffering. Plaintiff alleges that an FBI Agent failed to disclose information to law enforcement that the Minutemen American Defense planned an attack to invade plaintiff's home. Three masked intruders (later identified as members of the Minutemen American Defense) entered plaintiff's home and fatally shot - execution style - the plaintiff's husband and nine-year-old daughter.

The defendant filed a Motion to Dismiss on the grounds that the court lacked subject matter jurisdiction over the FTCA claim because the discretionary function exception applied. The District Court granted the Motion to Dismiss and Plaintiff appealed.

The Ninth Circuit panel analyzed the discretionary function exception and applied the Berkowitz two-prong test - the "Discretionary Act" and the "Policy Judgment" - in holding that the FBI's decision on whether to disclose information to local law enforcement was discretionary and therefore shielded the government from liability under the FTCA. Affirmed.

Significance: The Ninth Circuit panel broadened the discretionary function exception to include negligence claims for the FBI's failure to inform local law enforcement, even though such actions violated the Attorney General Guidelines; and further held that the two-prong standard in Berkowitz was satisfied when the FBI made the decision of whether or not to disclose information to law enforcement, and the government was therefore immune from the plaintiff's tort claim

Extended Summary: Plaintiff-appellant Gina Gonzalez and her minor daughter, A.F. ("Plaintiff") allege the government was liable for negligence when FBI Agent Chris Anderson, failed to disclose information to law enforcement after he learned of a planned home invasion among members of the Minutemen American Defense ("Minutemen") - an activist group that advocates against illegal immigration - against the Plaintiff.

FBI Agent Anderson learned from his informant, Robert Copley, of a possible attack on the plaintiff's home. The informant, who attended a Minutemen meeting, learned of a plan to conduct an "operation" in which the Minutemen would invade plaintiff's home and "secure" the residents, meaning "hitting the house like a SWAT team," to steal drugs, weapons, and money. Copley reported the information to Agent Anderson and provided a map of the approximate area of the attack. Copley told Agent Anderson that he considered the threat imposed by the planned invasion to be "real and imminent." Agent Anderson provided the map to the Phoenix FBI office, but the map was subsequently lost. FBI never provided local law enforcement with any of this information. Fifteen days following the Minutemen meeting, three masked intruders (later identified as members of the Minutemen American Defense) entered plaintiff's home and fatally shot - execution style - the plaintiff's husband and nine-year-old daughter. Although she survived, the plaintiff was wounded in the shoulder and leg.

Plaintiff filed a negligence claim in the U.S. District Court for the District of Arizona claiming the government was liable under the FTCA and sought damages for wrongful death, personal injuries, pain and suffering. The FTCA authorizes private suits against the United States for "damages for loss of property, injury, or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment." The plaintiff applied the FTCA and claimed the FBI negligently failed to disclose the information regarding the impending home invasion to local law enforcement, in contravention of the Attorney General's Guidelines. These guidelines provided the FBI "shall promptly transmit" to local law enforcement information concerning "serious criminal activity not within the FBI's investigation jurisdiction."

Defendant filed a Motion to Dismiss on the grounds that the court lacked subject matter jurisdiction over the FTCA claim because the discretionary function exception applied. The discretionary function exception immunized the federal government from claims "based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of the government." The policy is that this exception "prevent[s] judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy." The discretion protected is the "discretion of the executive or the administrator to act according to one's judgment of the best course." The district court granted the motion to dismiss and plaintiff appealed.

In affirming the district court's decision, the Ninth Circuit panel cited the Supreme Court's prescribed two-prong test from Berkowitz. The first prong is called the "discretionary act" where the courts are to ask whether the challenged action was a discretionary one; "that is, it must involve an element of judgment or choice." The second is called the "policy judgment" prong where the focus is on the nature of the actions taken, and whether they are susceptible to policy analysis.

Under the first prong, the Discretionary Act, the Ninth Circuit panel concluded that the FBI's decision whether or not to disclose the information regarding potential threats was discretionary. The panel stated that in order to satisfy the Discretionary Act prong, it must look to see if there is some kind of "federal statute, regulation, or policy that specifically prescribes a course of action for an employee to follow," (i.e. duty).

Plaintiff argued that the Attorney General Guidelines served as a regulation for the FBI's duty to disclose information to local law enforcement. The Ninth Circuit panel held that in spite of the mandatory-sounding language in the guidelines, courts have consistently held, where a government agent's performance of an obligation requires an agent to make judgment calls, the discretionary function exception applies. The Ninth Circuit panel reasoned that FBI agents must decide whether the information is credible, whether the criminal activity is serious, and whether there is any other reason relating to the FBI's other operations that counsels against transmitting the information. Therefore, the Ninth Circuit panel held the district court properly concluded that the guidelines did not prescribe a regulation for a mandatory course of conduct and the FBI's actions were discretionary. The Ninth Circuit panel further held that "viewed in context, the mandatory-sounding language such as 'shall' does not overcome the discretionary character of the guidelines."

Under second prong, the Policy Judgment, the Ninth Circuit panel addressed whether the FBI's decisions made pursuant to the Attorney General Guidelines were susceptible to policy judgment. In determining if the conduct involves a policy judgment, the court does not look at the agent's subjective weighing of policy consideration, instead the court looks at the nature of the government's action, or omission, and decides whether it is 'susceptible' to policy analysis under an objective assessment. Here, the Ninth Circuit panel relied on Alfrey and concluded that the omission implicated social and public policy considerations and to decide what steps to take in response to a reported threat, an officer must set priorities among all extant risks. Here, the Ninth Circuit panel concluded the FBI's judgment on how to respond to a reported threat and how extensively to disclose information to other law enforcement implicated many risks, all of which must be weighed in accordance with the FBI's social and public policy judgments. Moreover, the Ninth Circuit panel held that the government is not required to provide proof that any decision actually involved the weighing of policy consideration, and the discretionary function exception applied so long as the challenged decision was one to which a policy analysis could apply.

Finally, the plaintiff argued that the FBI's failure to disclose information did not implicate policy concerns, to satisfy the second prong, due to the doctrine of "design-implementation distinction." This doctrine holds that "the design of a course of governmental action is shielded by the discretionary function exception, whereas the implementation of that course of action is not. Plaintiff argued the failure of the FBI to inform was part of the implementation and thus not shielded. The Ninth Circuit panel disagreed and relied on Weissich where the court held that even if the FBI negligently failed to carry out its own plan of disclosing information to local law enforcement, the focus for the discretionary function exception is on the discretionary and policy-based nature of the guidelines, not on its decisions and implementations.

Ultimately, the Ninth Circuit panel held the district court properly concluded that the government satisfied both prongs of the discretionary function exception. The panel also held the choices to disclose or not to disclose "are among the judgment-laden decisions the discretionary function exception was enacted to shield." Judgment affirmed.

Panel: Marsha S. Berzon, Jay S. Bybee, John B. Owens, Circuit Judges, and Jennifer G. Zipps, District Judge.

Argument Date: March 12, 2015

Date of Issued Opinion: February 24, 2016

Docket Number: 13-15218

Decided: Affirmed.

Case Alert Author: Kristina Coronado

Counsel: Thomas G. Cotter (argued) and Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C. Tucson, Arizona, for Plaintiffs-Appellants.

Steve Frank (argued) and Mark B. Stern, Appellate Staff Attorneys; Stuart F. Delery, Assistant Attorney General; John S. Leonardo, United States Attorney; United States Department of Justice, Civil Division, Washington, D.C., for Defendant-Appellee.

Author of Opinion: Jay S. Byzee, Circuit Judge

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 07/07/2016 06:15 PM     9th Circuit     Comments (0)  

July 6, 2016
  Independence Institute v. Williams - Tenth Circuit
Case Name: Independence Institute v. Williams

Headline: Tenth Circuit Expands Citizens United to Compel Disclosure of Donors to Policy Ad Incidentally Mentioning a Political Candidate

Area of Law: First Amendment, Elections

Issues Presented: (1) Whether a policy advertisement mentioning a political candidate is subject to Colorado Const. art. XXVII, § 6(1), which requires disclosure of donors to electioneering communications, and (2) if so, whether the disclosure requirements are consistent with the First Amendment as articulated in Citizens United.

Brief Summary:

A non-profit corporation sought to air an advertisement criticizing the state for failing to audit its health care exchange and asking viewers to urge the incumbent governor, a candidate in the forthcoming election, to support an audit. Seeking to prohibit the Secretary of Colorado from requiring it to disclose the donors to the ad, the corporation filed a motion for summary judgment arguing that its ad was not campaign-related and, even if it was, compelling disclosure would infringe on its members' First Amendment right to free association. The Secretary filed a cross motion. The district court, concluding that the disclosure requirements did not violate the First Amendment, entered summary judgment for the Secretary.

The corporation appealed. First, disclosure requirements could properly reach issue speech such as this ad mentioning a candidate shortly before an election, even if the ad did not take a position on a candidacy. Second, Colorado's disclosure requirements, as applied to the corporation's ad, survive First Amendment scrutiny. The Tenth Circuit affirmed.

Extended Summary:

A non-profit corporation engaged in research and education of the public on public policy sought to air an advertisement criticizing the state's failure to audit its health care exchange. The ad urged viewers to call upon the incumbent governor, a candidate in the forthcoming election, to support an audit. The corporation sought an injunction to prohibit the Secretary of Colorado from compelling it to disclose the donors to its ad. See Colorado Const. art. XXVII, § 6(1). In a motion for summary judgment, the corporation argued that, because its ad was issue speech and not campaign-related speech, it was not subject to disclosure requirements. And even if the ad was campaign-related, the corporation contended, requiring disclosure would infringe on its members' First Amendment right to free association.

The Secretary filed a cross-motion for summary judgment seeking to compel disclosure. The district court granted the Secretary's motion, holding that the disclosure requirements did not violate the First Amendment right to free association. The corporation appealed. The Tenth Circuit affirmed.

First, the Tenth Circuit held that ads purporting to discuss only an issue, while incidentally mentioning a candidate shortly before an election, are sufficiently campaign-related to implicate the government's interest in disclosure. While Buckley v. Valeo, 424 U.S. 1 (1976), initially limited application of disclosure requirements to express advocacy that was unambiguously campaign-related, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), expanded the reach of disclosure requirements beyond express advocacy to at least some forms of issue speech. Here, the ad's insinuation that the incumbent governor failed to take action on an issue could bear on his character or merits as a candidate.

Second, the Tenth Circuit held that Colorado's disclosure requirements, which were substantially similar to the requirements upheld in Citizens United, met the exacting scrutiny standard and was the least restrictive alternative. Exacting scrutiny "requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest." In this case, the requirements serve the public's legitimate interest in knowing who communicates about a candidate shortly before an election. Colorado's spending requirements were sufficiently tailored because smaller elections can be influenced by less expensive communications.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-1463.pdf

Panel: Tymkovich, Murphy, and Bacharach

Date of Issued Opinion: February 4, 2016

Docket Number: No. 14-1463

Decided: The Tenth Circuit affirmed summary judgment in favor of the Secretary of Colorado.

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

Allen Dickerson (Tyler Martinez, Center for Competitive Politics, and Shayne M. Madsen and John Stuart Zakhem, Jackson Kelly, PLLC-Denver, with him on the briefs), Center for Competitive Politics, Alexandria, Virginia, for Appellant.

Glenn E. Roper, Deputy Solicitor General (Cynthia H. Coffman, Attorney General, Sueanna P. Johnson, Assistant Attorney General, and Frederick R. Yarger, Assistant Solicitor General, with him on the brief) Office of the Attorney General, Denver, Colorado, for Appellee.

Margaret G. Perl and Luis A. Toro, Colorado Ethics Watch, and Benjamin J. Larson, Ireland Stapleton Pryor & Pascoe, PC, Denver, Colorado, on the brief for Amici Curiae Colorado Ethics Watch and Colorado Common Cause.

Fred Wertheimer, Democracy 21, J. Gerald Hebert, Tara Malloy, Lawrence M. Noble, and Megan McAllen, The Campaign Legal Center, Donald J. Simon, Sonosky, Chambers, Sachse Enderson & Perry, LLP, and Scott L. Nelson, Public Citizen Litigation Group, Washington, DC, on the brief for Amici Curiae The Campaign Legal Center, Democracy 21 and Public Citizen.

Author of Opinion: Hon. Tymkovich

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 07/06/2016 11:55 AM     10th Circuit     Comments (0)  

  United States v. Fager - Tenth Circuit
Case Name: United States v. Fager

Headline: Tenth Circuit Holds that Roadside Frisk for Weapons is Reasonable When Defendant's Passenger has Criminal History

Area of Law: Fourth Amendment, Search

Issue Presented: Whether the officers' concerns for their own safety gave them reasonable suspicion to frisk Defendant during a roadside frisk.

Brief Summary:

Defendant was stopped for failing to use a turn signal. The officer discovered that the passenger in the vehicle had multiple outstanding warrants for his arrest. Defendant consented to a search of his car while he waited in the back of the patrol car. The officer patted down Defendant to check for weapons and found a gun on his person. Defendant filed a motion to suppress the gun based on a lack of reasonable suspicion of dangerousness. The district court denied the motion to suppress.

Defendant appealed. The Tenth Circuit affirmed, holding that, based on a totality of the circumstances, the officers reasonably could have suspected that Defendant was armed and thus acted lawfully when they patted him down in concern for their own safety.

Extended Summary:

An officer initiated a traffic stop for a turn signal violation. The officer initially believed Defendant was impaired and found the passenger's behavior suspicious in that he was leaning forward, apparently to obstruct the officer's view of Defendant. The officer conducted a warrants check and learned that the passenger had several outstanding warrants for his arrest. A backup officer arrived and the two officers asked Defendant to step out of his car. They determined that Defendant was not impaired. Defendant then consented to a search of his car and, because it was cold outside, sat in the back of the patrol car.

The two officers, concerned that they were going to looking completely away from Defendant and the passenger during the vehicle search, patted down Defendant for weapons. The officers discovered the firearm at issue in Defendant's waistband and arrested Defendant for being a felon in possession of a firearm. Defendant filed a motion to suppress the firearm, arguing that the pat-down was unlawful. The district court denied the motion to suppress. Defendant entered a conditional guilty plea and exercised his right to appeal the denial.

First, Defendant argued that the two cases relied on by the district court, United States v. Manjarrez, 348 F.3d 881 (10th Cir.2003) and United States v. McRae, 81 F.3d 1528 (10th Cir.1996), were incorrectly decided. The Tenth Circuit disagreed, reestablishing the principle from these cases that when an officer must turn his or her back to a defendant, such as during a search of a vehicle, little beyond a concern for safety is necessary to support the officer's reasonable suspicion. In Manjarrez, the officer was similarly justified in frisking a driver before turning his back on him to search the vehicle given the dangerous nature of traffic stops to officers. A driver need not, as in the case of McRae, possess a violent criminal history for a search of the driver to justify when the driver turns his back on the driver prior to a search of the vehicle.

Second, the Tenth Circuit held that Defendant's case was not distinguishable from Manjarrez and McRae because of the presence of the second officer. In the context of a traffic stop, it was reasonable for the officers to be concerned that Defendant and the passenger could launch a coordinated attack, especially when the Defendant or passenger knew there were outstanding warrants. See United States v. Holt, 264 F.3d 1215, 1223 (10th Cir.2001) (en banc).

In addition, other circumstances justified reasonable suspicion. The officers could infer that the men would jointly try to conceal evidence of the passenger's outstanding warrants based on the suspicious behavior of the passenger. See United States v. Rice, 483 F.3d 1079, 1085 (10th Cir. 2007). And the traffic stop occurred in a high-crime area in nighttime darkness. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-3104.pdf

Panel: Holmes, Baldock, and Matheson

Date of Issued Opinion: January 21, 2016

Docket Number: No. 15-3104

Decided: The Tenth Circuit affirmed the district court's denial of Defendant's motion to suppress.

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

Andrew J. McGowan, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Topeka, KS, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United States Attorney, Topeka, KS, for Plaintiff-Appellee.

Author of Opinion: Hon. Baldock

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 07/06/2016 11:51 AM     10th Circuit     Comments (0)  

  United States v. Lilly
Case Name: U.S. v. Lilly

Headline: Tenth Circuit Holds Investigators' Promises of Immunity to Confidential Informant Could Not Prevent Federal Charges

Area of Law: Fourth Amendment, Public Contract

Issue Presented: Whether the Wyoming agents, acting independently or on behalf of the federal DEA, had actual authority to bind the United States to a non-prosecution agreement pursuant to the Constitution, federal statute, or duly promulgated regulation, or as integral part of their duties.

Brief Summary:

Investigative agents from the Wyoming Division of Criminal Investigation (DCI) interviewed Defendant in connection with her fiancé's arrest by the Drug Enforcement Agency (DEA) for distribution of methamphetamine. Defendant agreed to serve as a confidential informant and made several incriminating statements about her involvement. Defendant was subsequently indicted for conspiracy to distribute methamphetamine. Defendant filed a motion seeking to prevent the United States from prosecuting her, arguing that the investigative agents promised her federal immunity from prosecution. The district court denied the motion, finding that neither the DCI nor DEA had the authority to bind the United States to any such agreement.

Defendant appealed. The Tenth Circuit held that the state investigators, acting independently or on behalf of the DEA, did not have the authority to promise Defendant federal immunity. Because any agreement was therefore unenforceable against the United States, the Tenth Circuit affirmed the district court's denial of Defendant's motion.

Extended Summary:

First, the Tenth Circuit held that, assuming there was an enforceable non-prosecution agreement between Defendant and the DCI agents, the DCI agents were acting independently and did not have authority to bar federal prosecution, because state officials have no power to bind the federal government. See United States v. Vinson, 414 F.3d 924, 929 (8th Cir.2005).

Second, as to express actual authority, Defendant pointed to no federal statute or regulation expressly authorizing DEA agents to grant immunity to cooperating informants. See United States v. Flemmi, 225 F.3d 78, 85 (1st Cir. 2000).

Third, regarding implied actual authority, while granting immunity might be helpful to securing cooperation of informants, the connection between a promise of immunity and the DEA's duty to investigate crimes is far too attenuated to establish that the DEA had implied actual authority to grant Defendant immunity. See id. at 86. Further, Defendant could not identify any participation by a federal prosecutor - who actually did possess such authority - in making a non-prosecution promise to her. See id. at 87.

Fourth, Defendant did not explain why her general fairness considerations should trump the well-established principle that anyone entering into an arrangement with the Government takes the risk of having accurately ascertained the limits of an agent's authority. See Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383-84 (1947). Nor was this case so extraordinary as to invoke the fundamental fairness exception to the requirement of actual authority. See Flemmi, 225 F.3d at 88 n.4.

Fifth, the supervisory power of the Court did not apply because a failure to enforce promises, which were unauthorized in the first instance, would not implicate the integrity of the judiciary or violate Defendant's recognized rights; nor were the alleged promises tainted by any illegality. See United States v. Payner, 447 U.S. 727, 734 - 35 (1980). Finally, Defendant did not raise, and therefore waived, the argument that a federal prosecutor ratified the agreement or failed to repudiate it knowing of the grant of immunity. See Flemmi, 225 F.3d at 90.

Concluding that the DCI agents had no independent authority to bind the United States, and the DEA agents likewise lacked the authority to direct them to do so, the Tenth Circuit affirmed the district court's denial of Defendant's motion.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-8041.pdf

Panel: Briscoe, Holmes, and Bacharach

Date of Issued Opinion: January 19, 2016

Docket Number: No. 14-8014

Decided: The Tenth Circuit affirmed the district court's denial of Defendant's motion.

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

W. Keith Goody, Cougar, WA, for Defendant-Appellant.

Thomas Szott, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Office of the United States Attorney, District of Wyoming, Cheyenne, WY, for Plaintiff-Appellee.

Author of Opinion: Hon. Holmes

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 07/06/2016 11:46 AM     10th Circuit     Comments (0)  

July 5, 2016
  Sixth Circuit rejects new arguments raised in hate-crime defendants' second appeal
Headline: Sixth Circuit rejects new arguments first raised in hate-crime defendants' second appeal

Case: United States v. Mullet

Area of law: appellate procedure; criminal law - hate crimes, conspiracy, and obstructing justice

Issue presented: In a second appeal, can criminal defendants raise new grounds for appeal that were not raised during their first appeal?

Brief summary: In the district court, sixteen Ohio-Amish community members were found guilty of numerous criminal counts including hate crimes, concealing evidence, and lying to the F.B.I., all related to shaming incidents within their community. In their first appeal, the Sixth Circuit reversed their hate-crime convictions due to faulty jury instructions. The defendants later filed a second appeal raising issues that they could have raised in the first appeal but didn't. Noting that this aspect of appellate procedure is well settled, the Sixth Circuit rejected the second appeal, finding that the arguments raised in the second appeal were late and, therefore, had been waived.

Extended summary: A jury returned guilty verdicts against 16 Ohio Amish involved in shaming incidents within their community, resulting in convictions for hate crimes, concealing evidence, and obstructing justice by lying to the F.B.I. The defendants appealed their convictions, and the court reversed their hate-crimes convictions due to jury instructions that were inconsistent with an intervening Supreme Court decision. On remand, these charges were not retried, so the district court resentenced based on the remaining convictions.

The defendants then filed a second appeal of their criminal convictions. The Sixth Circuit rejected the appeal because they could have raised these issues in their first appeal but failed to. The court observed that in "criminal case after criminal case, we have declined to allow a criminal defendant who fails to challenge part of a conviction in an earlier appeal to raise it in a later appeal." The court noted that this "forfeiture" rule is well settled and prevents everlasting litigation. The rule also encourages compliance with court rules that foster efficiency.

The Sixth Circuit declined to consider the forfeited arguments based on plain-error grounds. It also refused to disturb the district court's new sentences, which were within (or below) the relevant guidelines, finding that the district court exercised its discretion and "made reasonable choices in balancing the relevant factors and setting the sentences."

Panel: SUTTON and GRIFFIN, Circuit Judges; SARGUS, District Judge. (The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern District of Ohio, sitting by designation.)

Date of issued opinion: May 4, 2016

Docket number(s): 15-3212/ 3231/ 3232/ 3237/ 3246/ 3247/ 3249/ 3250/ 3267/ 3268/ 3269/ 3270/ 3273/ 3275/ 3277

Decided: May 4, 2016

Decision: Judgment affirmed.

Counsel: ARGUED: Wendi L. Overmyer, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellants in 15-3212, et al. Joseph P. Morse, JOSEPH P. MORSE & ASSOCIATES, Cleveland, Ohio, for Appellant in 15-3232. Mark R. Butscha, Jr., THOMPSON HINE LLP, Cleveland, Ohio, for Appellant in 15-3237. Christine Ku, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Wendi L. Overmyer, Edward G. Bryan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, Nevin E. Johnson, Hudson, Ohio, for Appellants in 15-3212, et al. Joseph P. Morse, JOSEPH P. MORSE & ASSOCIATES, Cleveland, Ohio, for Appellant in 15-3232. Mark R. Butscha, Jr., John R. Mitchell, Matthew D. Ridings, Holly H. Little, THOMPSON HINE LLP, Cleveland, Ohio, Joseph B. Rose III, THE ROSE LAW FIRM, Cleveland, Ohio, for Appellant in 15-3237. Damian A. Billak, Canfield, Ohio, for Appellant in 15-3231. Robert E. Duffrin, WHALEN DUFFRIN LLC, Boardman, Ohio, for Appellant in 15-3246. Nathan A. Ray, Akron, Ohio, for Appellant in 15-3247. James S. Gentile, Youngstown, Ohio, for Appellant in 15-3267. Samuel G. Amendolara, AMENDOLARA & RAFIDI, LLC, Boardman, Ohio, for Appellant in 15-3268. J. Dean Carro, BAKER, DUBLIKAR, BECK, WILEY, & MATTHEWS, North Canton, Ohio, for Appellant in 15-3269. Joseph A. Dubyak, Cleveland, Ohio, for Appellant in 15-3270. David C. Jack, Wadsworth, Ohio, for Appellant in 15-3273. Bridget M. Brennan, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, Diana K. Flynn, Thomas E. Chandler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Author of opinion: SUTTON, Circuit Judge.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to opinion: http://www.opn.ca6.uscourts.go...ns.pdf/16a0105p-06.pdf

Edited: 07/06/2016 at 10:24 AM by Mark Cooney

    Posted By: Mark Cooney @ 07/05/2016 03:42 PM     6th Circuit     Comments (0)  

  Competitive Enterprise Institute v. Office of Science and Technology Policy
Headline: D.C. Circuit holds agency documents maintained on a private email server remain under agency control for FOIA purposes

Area of Law: Freedom of Information Act

Issue(s) Presented: Whether agency documents which might otherwise be government records for FOIA purposes may not be searched for or turned over to the requestor because the head of the agency maintained the documents on a private email account in his name on a private organization's email site.

Brief Summary: In October, 2013, appellant Competitive Enterprise Institute (CEI) sent a FOIA request to the Office of Science and Technology Policy (OSTP) seeking any agency-related emails sent to or from a nonofficial email account maintained by OSTP's director, John Holdren, at Woods Hole Research Center. CEI had learned from a Vaugh Index produced in earlier FOIA litigation that Holdren may have used his Woods Hole email address for OSTP correspondence. In February, 2014 OSTP responded to the request, refusing to provide records from that email address on the basis that such records were "beyond the reach of FOIA" because they were in an account that was "under the control of the Woods Hole Research Center, a private organization." CEI exhausted its administrative appeals and brought suit in the U.S. District Court for the District of Columbia, seeking to compel production of Holdren's work-related emails from that account. OSTP successfully argued that because the email account at issue was not under its control, its contents were not agency documents required to be produced under FOIA and that the agency was not capable of searching them. The court granted summary judgment to OSTP and CEI appealed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed. Acknowledging that FOIA does "not confer authority upon the courts to command agencies to acquire a possession or control of records they do not already have," the court concluded that the records at issue remained under OSTP's constructive control. Relying on Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), the court found that the fact that the emails were in the possession of the head of the agency who had, in effect, moved them off site did not negate their "agency character." The court further determined that "it is not apparent to us that the domain where an email account is maintained controls the emails therein to the exclusion of the user ... who maintains the account." Finally, the court that allowing department heads to exempt their correspondence from FOIA requirements "by the simple expedient of maintaining ... departmental emails on an account in another domain" is inconsistent with the purpose of FOIA.

Judge Srinivasan wrote separately to set out his understanding of why Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980) did not control.


For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-5128-1622973.pdf.

Panel: Srinivasan, Edwards, Sentelle

Argument Date: January 4, 2016

Date of Issued Opinion: July 5, 2016

Docket Number: 15-5128

Decided: Reversed and remanded

Counsel: Hans F. Bader, Sam Kazman for appellant.

Daniel Tenny, Benjamin C. Mizer, Vincent H. Cohen, Jr., Matthew M. Collette for appellee.

Author of Opinion: Sentelle

Concurrence: Srinivasan

Case Alert Author:
Ripple Weistling

Case Alert Circuit Supervisor:
Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/05/2016 01:13 PM     DC Circuit     Comments (0)  

July 1, 2016
  West Virginia v. HHS
Headline: D.C. Circuit finds West Virginia lacks standing to challenge ACA extensions

Area of Law: Affordable Care Act

Issue(s) Presented: Whether the state of West Virginia has standing to challenge the President's determination not to enforce certain controversial provisions of the Affordable Care Act for a transitional period.

Brief Summary: The Affordable Care Act (ACA), 42 U.S.C. § 300gg - 300gg-6, 300gg-8, mandates minimum coverage requirements for all health insurance plans offered in the individual market. Shortly after those requirements took effect in 2013, insurance companies began cancelling policies that did not comply with ACA mandates, creating significant upheaval in health insurance markets. Subsequently, the President announced that the federal government would delay enforcing the statutory requirements, and HHS sent a letter to the States announcing a "transitional policy" that would allow health insurers, subject to certain conditions, to continue to offer policies that did not conform to ACA requirements for one year (later extended for another three years). In the interim, states could decide to either enforce or delay the mandates.

West Virginia, which initially opted to enforce the mandates, and then changed its position after HHS extended the transitional period, filed suit for declaratory and injunctive relief, claiming that HHS's blanket decision not to enforce the mandates violated the plain language of the ACA, which mandated that the Secretary "shall" enforce the mandates if states do not. West Virginia also claimed that the policy violated the APA because it amounted to a substantive and binding rule that was issued without the required notice-and-comment, unlawfully delegated away federal executive authority, and violated the Tenth Amendment by forcing states to determine whether or not to enforce federal requirements. The U.S. District Court for the District of Columbia dismissed the case, concluding that West Virginia lacked standing because it had not suffered an injury-in-fact.

The U.S. Court of Appeals for the District of Columbia affirmed. The court determined that West Virginia was arguing, in essence, that the federal government was illegally enlisting states to bear the political responsibility of deciding whether or not to implement a federal statue. The court concluded that the only injury West Virginia had suffered was the "political discomfort in having the responsibility to determine whether to enforce or not - and thereby annoying some ... citizens whatever way it decides" and found that there was no support for treating such political discomfort as a cognizable legal injury.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-5309-1622669.pdf.

Panel: Kavanaugh, Wilkins, Silberman

Argument Date: April 15, 2016

Date of Issued Opinion: July 1, 2016

Docket Number: 15-5309

Decided: Affirmed

Counsel: Elbert Lin, Patrick J. Morrisey, and Julie Marie Blake for appellant.

Lindsey Powell, Benjamin C. Mizer, Alisa B. Klein and Mark B. Stern for appellee.

Author of Opinion: Silberman

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/01/2016 12:03 PM     DC Circuit     Comments (0)  

June 14, 2016
  U.S. Telecom. Association v. FCC
Case Name: U.S. Telecom. Association v. FCC

Headline: Headline: Split D.C. Circuit panel Upholds FCC's Net Neutrality Rules

Area of Law: Telecommunications Act

Issue(s) Presented: Whether the FCC's 2015 Open Internet Order, which reclassifies fixed and mobile broadband service as telecommunication service subject to common carrier regulation and requires providers to treat all internet traffic the same regardless of source, is consistent with the Telecommunications Act of 1996, the Administrative Procedure Act, the Due Process Clause, and the First Amendment.

Brief Summary: The Telecommunications Act of 1996 distinguishes between telecommunications services, which are subject to common carrier regulation, and information services, which are not. The Act also creates a hybrid category of information services that facilitate use of telecommunications services ("the telecommunications management exception"). This third category, like telecommunications services, is subject to common carrier regulation.

In 1998, the FCC classified the transmission component of DSL service - the phone lines - as telecommunication service but held that the internet access component was an information service. In 2002, in its Cable Broadband Order, the FCC classified broadband service provided over cable lines as solely an information service, treating it as a single integrated service rather than the sum of two discrete parts. The Supreme Court upheld this order in 2005 on Chevron grounds after finding the statutory definition of "telecommunications service" to be ambiguous. National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 986 (2005). Following Brand X, the FCC classified other types of broadband service, including DSL and mobile broadband, as an information service without a standalone telecommunications service component. As of 2005, therefore, neither DSL nor cable was subject to common carrier regulation.

The FCC nonetheless insisted that it would "seek to preserve principles of internet openness." In 2007, after Comcast voluntarily agreed to more open access in response to consumer complaints, the FCC ordered Comcast to make a series of disclosures documenting its progress. The D.C. Circuit subsequently vacated this order on the grounds that the FCC had not identified statutory authority for doing so given its classification of broadband as "information service."

In 2010, following the D.C. Circuit's decision, the FCC initiated notice and comment rulemaking on the question of whether it ought to reclassify broadband service as "telecommunications service" within the meaning of the Telecommunications Act. Instead of reclassifying broadband service, however, the FCC merely issued the 2010 Open Internet Order, which promulgated a transparency rule, requiring disclosure of network management and performance characteristics, an anti-blocking rule, barring providers from blocking lawful content, and an anti-discrimination rule, barring providers from unreasonably discriminating in the transmission of network traffic. The transparency rule applied to fixed and mobile broadband, but the anti-blocking and anti-discrimination rules applied only to fixed broadband. Upon challenge, the D.C. Circuit upheld the FCC's authority to promulgate open internet rules under Section 706 of the Telecommunications Act but vacated the anti-blocking and anti-discrimination rules because they subjected fixed broadband providers to per se common carrier treatment.

The FCC responded with the 2015 Open Internet Order at issue in the instant challenge. The Order reclassifies fixed and mobile broadband service as "telecommunications services." The FCC exempted broadband carriers from mandatory unbundling requirements that were triggered by the telecommunications service classification. Finally, the FCC promulgated five net neutrality rules, applied to both fixed and mobile broadband service. The first three, termed "bright-line rules," ban blocking, throttling, and paid prioritization. The fourth, termed a "general conduct rule," prohibits providers from unreasonably interfering with end users' ability to select the service or internet content of their choice. Finally, the fifth rule built upon the transparency rule upheld previously by the D.C. Circuit. Petitioners, several groups of service providers, edge providers, users, organizations, and investors challenged the Order. The D.C. Circuit denied the various petitions, thus upholding the Order.

The court first determined that reclassifying fixed and mobile broadband service as telecommunications service was permissible under the Telecommunications Act. Employing the familiar Chevron construct, the court began by concluding that the Act did not unambiguously require - either in its plain language, context, or legislative history - that broadband service be classified either as "information service" or as "telecommunications service." Turning to step two, the court found reasonable the FCC's conclusion that users rely on broadband service primarily to access information from other providers, like YouTube and Netflix, which they select, rather than independent content like email offered by broadband service providers. The court accepted the FCC's conclusion that DNS and caching services were adjuncts to telecommunications service that primarily facilitate use of the network.

Turning to the argument that the FCC failed adequately to explain its decision to reclassify broadband service and thus acted arbitrarily and capriciously, the D.C. Circuit found that the FCC had provided sufficient explanation for the reclassification and had properly taken into account appropriate factors, like the possibility that its decision might affect investment in broadband. The panel majority rejected the argument that the FCC's Order failed to make findings regarding market power or to consider competitive conditions, finding no such requirement in the statute. The court also rejected the argument that the FCC had to satisfy a "heightened" standard when it changed its classification, concluding that the FCC had provided reasoned explanation underlying its conclusion that a change was necessary from the prior policy. Finally, the court concluded that the FCC had adequately considered possible reliance interests and found reasonable the FCC's conclusion that factors other than the classification were the most important drivers of broadband investment.

The court next turned to challenges to the Commission's regulation of interconnection arrangements - agreements between broadband providers and other networks to ensure end user access to content. In its Order, the FCC had found regulation of these arrangements necessary to keep providers from disadvantaging content providers and concluded that this regulation was indispensable to and derivative of its regulation of service to end users. After concluding that the FCC had satisfied the requirements of notice and comment rulemaking, the D.C. Circuit upheld the FCC's regulation of interconnection arrangements as reasonable.

Turning to challenges specific to mobile broadband service, the court noted that under the Act, mobile services are subdivided into "commercial mobile services" and "private mobile services," only the former of which are subject to common carrier regulation. In 2007, the FCC had classified mobile broadband, then a nascent service, as "private." The court observed that mobile broadband is a "service" offered "for profit" to "a substantial portion of the public." The court found the changed landscape, with three-quarters of the age 13+ population in America now using smartphones, justified the FCC's conclusion that mobile broadband represented an "interconnected service" that enabled users to connect to the public switched network within the meaning of the statute and found no statutory impediment to the reclassification. Finally, the court rejected the argument that the FCC had insufficiently explained the change, observing that the FCC had engaged in reasoned decision-making and had considered all relevant criteria.

The court next rejected various procedural and substantive challenges to the FCC's decision to forebear from enforcing unbundling requirements on broadband providers. The Communications Act bars the FCC from applying regulatory requirements to a regulated entity when it is not necessary to ensure that the entity's practices are just and nondiscriminatory, when it is not necessary for the protection of consumers, and when it is consistent with the public interest. The court concluded that the FCC had acted neither arbitrarily nor capriciously and had demonstrated rational connections between facts found and choices made.

Next, the court rejected challenges to the promulgated rules on due process/vagueness grounds. Noting that petitioners brought a facial challenge, the court concluded that the rule would pass muster unless it is impermissibly vague in all its applications. The court found that the challenged general conduct rule, which operates only prospectively and imposes no criminal sanctions, provides adequate notice of proscribed conduct. The court noted, in this regard, that the advisory opinion procedure whereby companies could seek out the FCC's opinion on whether a given course of conduct would violate the rule cured it of any conceivable lingering vagueness concern.

Finally, the court found no First Amendment infirmity in the Order. One petitioner had argued that the open access rules would force it to transmit content with which it disagreed in violation of the First Amendment. Because the FCC can legally reclassify broadband service as telecommunications service, which entitles it to treatment as a common carrier, broadband service is subject to nondiscrimination and equal access rules that pass First Amendment muster. The court noted that conveying internet content did not involve any editorial discretion and that broadband providers, like telephone companies, were neutral, indiscriminate platforms for the conveyance of information.

Judge Williams concurred in part and dissented in part and would have vacated the Order.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-1063-1619173.pdf.

Panel: Tatel, Srinivasan, Williams

Argument Date: December 4, 2015

Date of Issued Opinion: June 14, 2016

Docket Number: 15-1063

Decided: Affirmed

Counsel (if known):

Author of Opinion: Tatel and Srinivasan

Concurring in part: Williams

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/14/2016 02:03 PM     DC Circuit     Comments (0)  

  DeCoursey v. American General Life Insurance Company - Eighth Circuit
Headline Eighth Circuit panel interprets Missouri law concerning whether insurance proceeds paid in error must be returned to the insurance company

Area of Law Insurance

Issue(s) Presented Whether the district court properly determined that plaintiff failed to bring suit within the limitations period, but was still entitled to keep insurance proceeds paid to her in error.

Brief Summary DeCoursey's husband died in a car accident in 1986 and she submitted a claim on his $250,000 life insurance policy with American General Life Insurance Company's (the Company) predecessor in interest. The claim was denied, because the Company determined that the policy had lapsed. In June 2011 as part of the Company's own review of its life insurance policies, it notified DeCoursey that she was entitled to benefits under the policy because it had not, in fact, lapsed at the time of her husband's death. In 2013, the Company paid DeCoursey the policy's face value, $250,000. DeCoursey sued, claiming that she was owed 9% interest from the time her claim was denied in 1986. Upon further investigation, the Company confirmed that the policy had indeed lapsed prior to the accident, notified DeCoursey that it had wrongfully paid her, and counterclaimed for unjust enrichment.

The Company moved for summary judgment, arguing that DeCoursey failed to file suit within the 10 year limitations period. The district court agreed. DeCoursey also moved for summary judgment on the Company's unjust enrichment claim. The court granted DeCoursey's motion, holding that the company had voluntarily paid DeCoursey the $250,000 and was not entitled to its return because the Company had presented no evidence that it did not have an opportunity to diligently investigate the policy before it paid out.

On appeal, a panel of the Eighth Circuit agreed with the district court that DeCoursey's claims were brought outside the 10 year limitations period, which began to run in 1986 when her claim was denied, not in 2013 when she received the payment. The panel reversed the district court's decision with respect to whether DeCoursey was entitled to keep the $250,000 payment. The Missouri Supreme Court has never ruled on whether an insurance company may recover proceeds it pays out in error when it had an opportunity to investigate the facts. In such a case, the Eighth Circuit must predict how the state's highest court would decide the issue. The panel noted that the Missouri Supreme Court typically treats the Restatement on Restitution as authoritative. It then looked to the relevant portions of the Restatement, and determined that the Missouri Supreme Court would decide that a payor's lack of care will not diminish its right to recover, or somehow justify retention of the windfall wrongly paid. As such, the Eighth Circuit panel concluded that the Company had a straightforward restitution claim, and reversed the district court's grant of summary judgment against the Company.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/05/151927P.pdf

Panel Circuit Judges Arnold, Shepherd, and Wollman

Date of Issued Opinion May 17, 2016

Decided Affirmed in part and reversed in part

Docket Number 15-1927; 15-1929

Counsel Antwuan Smith for Susan DeCoursey and John Cowles Neiman, Jr. for American General Life Insurance Company

Author Circuit Judge Arnold

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 06/14/2016 10:07 AM     8th Circuit     Comments (0)  

June 10, 2016
  United States v. Hill - Eighth Circuit
Headline Eighth Circuit panel affirms decision concerning meaning of "sex offense" for purposes of the Sex Offender Registration and Notification Act

Area of Law Criminal Law

Issue(s) Presented Whether the district court properly denied Defendant's motion to dismiss the indictment against him for failing to register as a sex offender.

Brief Summary Defendant pleaded guilty in South Carolina state court to "willfully, maliciously, and indecently expos[ing] his person in a public place, on the property of others, or in the view of any person on the street or highway." S.C. Code Ann. § 16-15-130(A)(1). As such, the court ordered him to register in both sex offender and child abuser registries in South Carolina, which he did. Afterward, Congress enacted the Sex Offender Registration and Notification Act (SORNA) to more uniformly protect the public from sex offenders throughout the U.S. SORNA criminalizes a sex offender's knowing failure to register or update certain information within three business days of changing residence. 18 U.S.C. § 2250(a); 42 U.S.C. § 16913(a), (c). Defendant moved from South Carolina to Arkansas after SORNA was enacted, but did not update his sex offender registry information for several months, resulting in his indictment.

The district court denied Defendant's motion to dismiss the indictment, and this appeal followed. Defendant primarily argued that the district court should have dismissed the indictment because his South Carolina conviction did not trigger SORNA's reporting requirements. Defendant contended that his conviction for indecent exposure did not make him a "sex offender" obligated to register because it was not a "sex offense" as defined by SORNA. SORNA defines a "sex offender" as "an individual who was convicted of a sex offense, " and in turn defines in relevant part a "sex offense" as "a criminal offence that is a specified offense against a minor," which includes "conduct that by its nature is a sex offense against a minor." 42 U.S.C. § 16911.

On appeal, a panel of the Eighth Circuit disagreed with Defendant. It rejected Defendant's argument that the court must only look at the crime's statutory definition, and not at the facts underlying the conviction, in determining whether it meets the definition of a "sex offense." Instead, the Eighth Circuit adopted the approach taken by three other federal circuits and held that when determining whether a prior offense constitutes "conduct that by its nature is a sex offense against a minor" under SORNA, a court should employ a circumstance-specific approach. Using this approach, a court should consider any reliable evidence about the circumstances under which the crime was committed. The court held that this approach is compelled by the text and purposes of SORNA.

Applying the circumstance-specific approach to this case, the court determined that Defendant committed a "sex offense" within the meaning of SORNA because his victim was an eleven-year-old girl. Therefore, the Eighth Circuit affirmed the district court's denial of the motion to dismiss the indictment.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/04/153193P.pdf

Panel Circuit Judges Arnold, Shepherd, and Wollman

Date of Issued Opinion April 29, 2016

Decided Affirmed

Docket Number 15-3193

Counsel Ashleigh Buckley for the United States and Chistopher Aaron Holt for Defendant

Author Circuit Judge Arnold

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 06/10/2016 03:34 PM     8th Circuit     Comments (0)  

June 6, 2016
  Nikki Bruni v. City of Pittsburgh - Third Circuit
Headline: District Court erred in dismissing pro-life sidewalk counselors' First Amendment challenge to Pittsburgh's 15-Foot buffer zone ordinance

Area of Law: First Amendment

Issue(s) Presented: Did the District Court err in dismissing plaintiffs' First Amendment facial challenge to the City of Pittsburgh buffer zone ordinance that prohibits protesting and demonstrating within 15 feet of health care facilities?

Brief Summary: Plaintiffs challenged an ordinance of the City of Pittsburgh that prohibits certain speech within 15 feet of health care facilities, particularly certain abortion clinics. The plaintiffs engage in "sidewalk counseling," a form of pro-life advocacy whereby the plaintiffs try, through close conversation, to persuade women to forgo abortion services. Plaintiffs claim the ordinance is facially unconstitutional under the Free Speech and Due Process Clauses, in that the "buffer zone" limits their ability to approach people near the clinics and that the City has unbridled discretion in establishing the buffer zones.

The Third Circuit vacated the dismissal of the free speech claims. Applying an intermediate scrutiny standard, the Third Circuit reasoned that the sidewalk counseling here is core political speech entitled to maximum protection. The City cannot burden it without first trying, or at least demonstrating that it has seriously considered, less restrictive measures. Thus, the Third Circuit reversed the District Court's dismissal so that the claims could be considered after appropriate development of a factual record. However, the Third Circuit affirmed the dismissal of the Due Process claim, noting that the First Amendment covers all of the plaintiffs' conventions.

Extended Summary: Plaintiffs, Nikki Bruni and several others, engage in "sidewalk counseling," a form of pro-life advocacy, outside of a Pittsburgh Planned Parenthood. Plaintiffs challenged a Pittsburgh ordinance that establishes a 15-foot buffer zone, which prohibits congregating, picketing, or demonstrating within 15 feet from any entrance to a hospital and/or health care facility. Although the ordinance applies to all hospital and health care facilities entrances, the City has only demarcated two actual zones, both around abortion clinics. Plaintiffs engage in their sidewalk counseling around one clinic in particular, which has a yellow marking of the 15-foot zone. The City interpreted the plaintiffs' form of expression as "demonstrating" and thus banned under the ordinance.

Plaintiffs claim that the zone is facially unconstitutional under the Free Speech Clause of the First Amendment, in that it makes it difficult for them to engage in their sidewalk counseling, which, unlike protesting, requires close, personal, interactions. They are unable to distinguish patients from passersby at the required 15-foot distance from the entrance. Plaintiffs also challenged the ordinance under the Due Process Clause of the Fourteenth Amendment due to the the ordinance's allegedly vesting unbridled discretion in City officials.

To analyze the free speech claim, the Court first considered whether the ordinance restricts speech based upon its content. If it does, the applicable standard is strict scrutiny - that is, the ordinance is presumptively unconstitutional and justified only if the government proves it is narrowly tailored to serve a compelling state interest. On the other hand, if the ordinance is content-neutral, it is evaluated with intermediate scrutiny - that is, whether the ordinance is narrowly tailored to serve a significant government interest.

Plaintiffs pointed to recent Supreme Court precedent holding that statutes regulate content by defining regulated speech by its function or purpose. Thus, by defining prohibited expression as that which involves "demonstrating" or "picketing," the Pittsburgh ordinance limits speech by its content and thus strict scrutiny should be applied. However, the Third Circuit held that the plaintiffs' complaint included a viable free speech challenge to the ordinance under the lower, intermediate scrutiny standard. Moreover, the Third Circuit had previously found a similar buffer zone ordinance to survive the heightened level of strict scrutiny and thus avoided overruling that precedent by evaluating the present ordinance under the lower standard instead.

Thus, the Third Circuit evaluated the present buffer zone under intermediate scrutiny. The Court surveyed the Supreme Court cases ruling on similar buffer zone and "floating bubble zone" ordinances. A 36-foot buffer zone was upheld after it was amended from a prior rule that enjoined specific protesters from blocking or interfering with public access to the clinic proved insufficient to serve the government's stated interests. A general floating bubble zone was struck down because it would be difficult for protesters to know how to remain in compliance with the rule and thus created a substantial risk that much more speech will be burdened than the injunction by its terms prohibit. However, an eight-foot floating bubble zone was upheld as it satisfied intermediate scrutiny's narrow tailoring requirement. Such a distance still allowed speech at a "normal conversational distance."

However, in McCullen, the Supreme Court struck down a Massachusetts 35-foot buffer zone as insufficiently narrowly tailored under intermediate scrutiny. Similar to the current plaintiffs, the petitioners in McCullen engaged in "sidewalk counseling" requiring personal, caring conversations as opposed to chanting slogans and displaying signs as a form of protest. The Supreme Court reasoned that, even if the counselors could be seen from the buffer zone's distance, if all the women could hear are the "vociferous opponents" of abortions, then the zones effectively stifled the counselors' message. Moreover, the speech was occurring on public streets and sidewalks - a quintessential public forum.

The McCullen Court then balanced what it found to be a significant burden on speech with the means chosen to effectuate the government's purpose, i.e., the buffer zone. The Supreme Court pointed to less speech-restrictive alternatives, such as existing local ordinances banning obstruction of public ways. Also, the Commonwealth could not demonstrate that it had attempted or seriously considered alternative measures. Thus, the Supreme Court struck down the buffer zone.

Applied here, the Third Circuit noted that like McCullen and the other Supreme Court buffer zone cases, the City's interest in protecting women's freedom to seek pregnancy-related services and ensuring public safety are significant. Still, the ordinance must be narrowly tailored to that interest. Although the 15-foot zone is indeed less than the 35-foot one in McCullen, the Third Circuit noted that none of the Supreme Court cases turned solely on size of the zones. The size not being dispositive, the Court looked to the allegations of the Complaint broadly. They allege that the zones make it difficult for the plaintiffs to engage in sidewalk counseling, prayer, and other activities and that their conversations with women are thus less frequent and less successful. In this way, the burden on the plaintiffs' speech is akin to that imposed on the petitioners in McCullen.

Having established that the zone creates a significant burden on speech, the Third Circuit next held that there are a variety of alternate approaches the City could have employed to serve its interest. Moreover, the City did not demonstrate that it seriously undertook to address the problem with less intrusive tools available to it, nor did it show that it considered different methods.

Plaintiffs also maintained that the ordinance violated the due process clause because it gives the City unbridled discretion to create buffer zones. The Third Circuit held that the District Court properly dismissed this claim, because where a particular Amendment provides an explicit source of protection against a particular government behavior, that Amendment and not the generalized notion of "substantive due process" must be the guide for analyzing the claims. Here, the First Amendment was the more explicit source for the plaintiffs' claims against the buffer zones.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151755p.pdf.

Panel: Fuentes, Jordan, and Vanaskie, Circuit Judges

Argument Date: November 6, 2015

Date of Issued Opinion: June 1, 2016

Docket Number: No. 15-1755

Decided: Vacated in part, affirmed in part

Case Alert Author: Elizabeth C. Dolce

Counsel: Matthew S. Bowman, David A. Cortman, Elissa M. Graves, and Lawrence G. Paladin, Jr., Counsel for Appellants; Michael E. Kennedy, Matthew S. McHale, and Lourdes Sanchez Ridge, Counsel for Appellees; Erek L. Barron, Counsel for Amicus Curiae.

Author of Opinion: Circuit Judge Jordan

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 06/06/2016 12:47 PM     3rd Circuit     Comments (0)  

June 5, 2016
  Sixth Circuit: No further reduction of amended-guideline sentence based on nonassistance factors
Headline: Sixth Circuit denies further reduction of amended-sentencing-guideline minimums based on nonassistance factors.

Case: USA v. Kimberly Taylor

Area of law: Criminal law; Sentence reductions; Assistance and Non-assistance Factors

Issue presented: May a district court further reduce a sentence to include a downward variance in amended sentences?

Brief summary: A meth-maker was eligible for a sentence reduction based on the new drug-offense levels established by the amended Sentencing Guidelines, and the district court reduced her sentence 19% below her amended guidelines range to account for the substantial-assistance departure she received as part of her original below-guidelines sentence. Because the meth-maker's original sentence also included a downward variance, she asked for a further reduction. The government agreed to the reduction, but the district court still denied the request, stating, "U.S.S.G. § 1B1.10(b)(2) restricts a district court's discretion to impose a new below-guidelines sentence based on any factor but a departure for substantial assistance." The Meth-maker appealed, but the Sixth Circuit affirmed based on § 1B1.10(b)(2)'s historical application and the decisions of other circuits.

Extended summary: A meth-maker was sentenced to 72 months' imprisonment after pleading guilty to "(1) conspiracy to manufacture 5 grams or more of methamphetamine, and (2) aiding and abetting in maintaining a place for the purpose of manufacturing methamphetamine." Her guideline range was 108 to 135 months, based on her total offense level and criminal history. The government moved for a sentence as low as 87 months, or 19% below the bottom of the guidelines range, based on her substantial assistance. She also separately moved for a downward variance. The district court granted both motions and imposed the 72-month sentence, but did not specify to what extent the reduction was attributable to each one. The final sentence reflected a 33% reduction from the bottom of the guideline range.

Years later, an amendment to the Sentencing Guidelines became effective, retroactively lowering the sentencing guidelines for drug offenses. The meth-maker once again moved for a sentence reduction. As amended, her new guideline range was 87 to 108 months. Because her original sentence was already 33% below the applicable guidelines range at the time of sentencing, she sought a sentence as low as 58 months, 33% below the amended guidelines range. The district court ruled that 19% of the original reduction was attributable to the meth-maker's substantial assistance and thus reduced her new sentence to 70 months, a 19% reduction from the bottom of her amended guideline range.

Two months later, the meth-maker and the government filed a joint motion for reconsideration arguing that she is "eligible for a 33-percent reduction below the amended guidelines range, i.e., for a term as low as 58 months' imprisonment." The district court denied the joint motion, concluding that because U.S.S.G. § 1B1.10(b)(2)(B) "is limited to departures awarded 'pursuant to' substantial assistance motions, and because variances and non-cooperation departures are not awarded 'pursuant to' such motions, courts lack authority under § 3582(c)(2) to grant the relief requested by the present motion." The meth-maker appealed, arguing that the district court erred when it held that it "could not reduce her sentence below her amended guideline range to account for the downward variance she received at her original sentencing."

Under § 3582(c)(2), a defendant may receive a reduced sentence when: (1) the defendant "has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission"; and (2) such reduction is "consistent with applicable policy statements issued by the Sentencing Commission." The Sixth Circuit noted that the relevant policy statement -- § 1B1.10 of the Sentencing Guidelines -- limits a district court's ability to sentence a defendant below the minimum of her amended guideline to the extent of a defendant's substantial assistance.

The Sixth Circuit noted that the caselaw on this issue in other circuits supports reading § 1B1.10 as limiting the scope of below-guidelines reductions to substantial assistance. For instance, the Second Circuit has held that "the provisions of § 1B1.10 . . . require a resentencing court to apply the amended Guidelines range that would have been applicable to a defendant, without applying any departures other than one . . . based on a defendant's substantial assistance." The First, Eighth, Tenth, and Eleventh Circuits have likewise issued published or unpublished opinions supporting the limitations on below-minimum sentences based on the amended Sentencing Guidelines. Therefore, the Sixth Circuit found that the district court properly determined that it lacked authority to reduce the meth-maker's sentence further below her amended guideline range to account for a non-assistance downward variance.

Dissent: The dissent, authored by Judge Merritt, argued that the percentages used in the original sentencing were not scientific, but rather "just a guess or speculation," and should not limit the court's discretion to issue an amended sentence based on current factors. In this case, both the government and the meth-maker had already agreed that the sentence should not be limited to a 19% reduction. Rather, they agreed to a 33% reduction, and there was "no indication that district judge would not agree that this would be a more just sentence." He opined that the court should be allowed to use their discretion in resentencing.

Panel: Circuit Judges Gilbert S. Merritt, Julie S. Gibbons, and David McKeague.

Date of issued opinion: March 7, 2016

Docket number: 15-5930

Decided: Affirmed

Counsel: ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Caryn L. Hebets, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Author of opinion: Circuit Judge Julie S. Gibbons.

Author of dissenting opinion: Circuit Judge Gilbert S. Merritt.

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0057p-06.pdf

    Posted By: Mark Cooney @ 06/05/2016 07:52 AM     6th Circuit     Comments (0)  

May 27, 2016
  United States of America v. Jean Robert Nerius - Third Circuit
Headline: No presumption of judicial vindictiveness arises where a revised sentence is shorter than the sentence originally imposed

Area of Law: Federal Sentencing

Issue(s) Presented: Is a revised sentence that is one month shorter than the sentence originally imposed sufficient to support a presumption of judicial vindictiveness?

Brief Summary: Jean Robert Nerius, while in custody at a Pennsylvania penitentiary, pled guilty to resisting or impeding correctional employees and damaging property. He was sentenced as a career offender to 37 months' imprisonment, at the lower end of career offender sentencing range. However, while his appeal was pending, the Supreme Court voided the clause that served the basis of his classification as a career offender. No longer deemed a career offender under the applicable rules, Nerius' qualified for the lower 30-to-37-month range. He was resentenced to 36 months.

Nerius claimed his new sentence was presumptively vindictive because it fell at the upper end of the non-career offender sentencing guideline range, while his original sentence was at the lower end of the career offender range. The Third Circuit held that, because his revised sentence was lower than the original sentence, there was no presumption of judicial vindictiveness, and that Nerius presented no evidence of actual vindictiveness. Thus, the Third Circuit affirmed the revised sentence.

Extended Summary: Nerius, while in custody at the United States Penitentiary in Lewisburg, Pennsylvania, committed several offenses, including biting a correctional employee's finger and breaking the sprinkler in his cell. He pled guilty to resisting correctional officers and damaging property within special maritime and territorial jurisdiction of the United States. Given the violent nature of the offenses and his criminal record, Nerius qualified as a career offender. Countering this with his acceptance of responsibility, sentencing guidelines resulted in an advised range of 37 to 46 months. Nerius sought a sentence below this range for his good behavior, which the District Court denied in the context of his violent actions and long criminal history. But acknowledging his recently improved behavior, the District Court sentenced at the bottom of the career offender range, with concurrent 37-month sentences for each count. Nerius appealed.

While his appeal was pending, the Supreme Court found the clause that served as the basis of Nerius' classification as a career offender void for vagueness. Thus, Nerius' case was vacated and remanded for resentencing. Because he no longer qualified as a career offender, his sentencing fell within the 30-to-37-month range. Based on good behavior, Nerius again sought a lower sentence or at least one towards the lower end of the range. However, the District Court sentenced at the top of the revised range, with concurrent 36-month sentences. Nerius appealed, claiming judicial vindictiveness and a violation of due process because at his initial sentencing, he was sentenced at the bottom of the then-applicable range, and at his resentencing, he was sentenced near the top of the revised range.

The Supreme Court has held that a presumption of judicial vindictiveness arises when a defendant receives a higher sentence after having successfully attacked his first conviction. This presumption focuses on the total length of the initial versus revised sentences. If the presumption does not apply - that is, the revised sentence is shorter - the appellant can succeed by showing actual vindictiveness in the sentencing judge. Under this framework, the Third Circuit affirmed Nerius' revised sentence. The Court acknowledged that Nerius' revised sentence fell at the top of the range, while his original sentence was at the bottom of the range. Still, he received a shorter sentence at resentencing, and thus the presumption of vindictiveness was not triggered. Moreover, Nerius showed no actual vindictiveness in the absence of the presumption.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153688p.pdf

Panel: Smith, Hardiman, and Shwartz, Circuit Judges

Argument Date: May 20, 2016

Date of Issued Opinion: May 25, 2016

Docket Number: No. 15-3688

Decided: Affirmed

Case Alert Author: Elizabeth C. Dolce

Counsel: Stephen R. Cerutti, II, Esquire and Eric Pfisterer, Esquire, Counsel for Appellee; D. Toni Byrd, Esquire and Ronald A. Krauss, Esquire, Counsel for Appellant.

Author of Opinion: Circuit Judge Shwartz

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt





Area of Law: Federal Sentencing

Issue(s) Presented: Is a revised sentence that is one month shorter than the sentence originally imposed sufficient to support a presumption of judicial vindictiveness?

Brief Summary: Jean Robert Nerius, while in custody at a Pennsylvania penitentiary, pled guilty to resisting or impeding correctional employees and damaging property. He was sentenced as a career offender to 37 months' imprisonment, at the lower end of career offender sentencing range. However, while his appeal was pending, the Supreme Court voided the clause that served the basis of his classification as a career offender. No longer deemed a career offender under the applicable rules, Nerius' qualified for the lower 30-to-37-month range. He was resentenced to 36 months.

Nerius claimed his new sentence was presumptively vindictive because it fell at the upper end of the non-career offender sentencing guideline range, while his original sentence was at the lower end of the career offender range. The Third Circuit held that, because his revised sentence was lower than the original sentence, there was no presumption of judicial vindictiveness, and that Nerius presented no evidence of actual vindictiveness. Thus, the Third Circuit affirmed the revised sentence.

Extended Summary: Nerius, while in custody at the United States Penitentiary in Lewisburg, Pennsylvania, committed several offenses, including biting a correctional employee's finger and breaking the sprinkler in his cell. He pled guilty to resisting correctional officers and damaging property within special maritime and territorial jurisdiction of the United States. Given the violent nature of the offenses and his criminal record, Nerius qualified as a career offender. Countering this with his acceptance of responsibility, sentencing guidelines resulted in an advised range of 37 to 46 months. Nerius sought a sentence below this range for his good behavior, which the District Court denied in the context of his violent actions and long criminal history. But acknowledging his recently improved behavior, the District Court sentenced at the bottom of the career offender range, with concurrent 37-month sentences for each count. Nerius appealed.

While his appeal was pending, the Supreme Court found the clause that served as the basis of Nerius' classification as a career offender void for vagueness. Thus, Nerius' case was vacated and remanded for resentencing. Because he no longer qualified as a career offender, his sentencing fell within the 30-to-37-month range. Based on good behavior, Nerius again sought a lower sentence or at least one towards the lower end of the range. However, the District Court sentenced at the top of the revised range, with concurrent 36-month sentences. Nerius appealed, claiming judicial vindictiveness and a violation of due process because at his initial sentencing, he was sentenced at the bottom of the then-applicable range, and at his resentencing, he was sentenced near the top of the revised range.

The Supreme Court has held that a presumption of judicial vindictiveness arises when a defendant receives a higher sentence after having successfully attacked his first conviction. This presumption focuses on the total length of the initial versus revised sentences. If the presumption does not apply - that is, the revised sentence is shorter - the appellant can succeed by showing actual vindictiveness in the sentencing judge. Under this framework, the Third Circuit affirmed Nerius' revised sentence. The Court acknowledged that Nerius' revised sentence fell at the top of the range, while his original sentence was at the bottom of the range. Still, he received a shorter sentence at resentencing, and thus the presumption of vindictiveness was not triggered. Moreover, Nerius showed no actual vindictiveness in the absence of the presumption.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153688p.pdf.

Panel: Smith, Hardiman, and Shwartz, Circuit Judges

Argument Date: May 20, 2016

Date of Issued Opinion: May 25, 2016

Docket Number: No. 15-3688

Decided: Affirmed

Case Alert Author: Elizabeth C. Dolce

Counsel: Stephen R. Cerutti, II, Esquire and Eric Pfisterer, Esquire, Counsel for Appellee; D. Toni Byrd, Esquire and Ronald A. Krauss, Esquire, Counsel for Appellant.

Author of Opinion: Circuit Judge Shwartz

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 05/27/2016 02:36 PM     3rd Circuit     Comments (0)  

  Prometheus Radio Project v. Federal Communications Commission - Third Circuit
Headline: In its Third Go-round with the FCC, the Third Circuit Holds the Agency Has Delayed in its Diversity Initiatives and Obligation to Examine its Broadcast Ownership Rules and Improperly Enacted a Television Joint Sales Agreement Rule

Area of Law: Administrative Law, Communications

Issue(s) Presented: Has the FCC unreasonably delayed in its obligations to consider new definitions for "eligible entities" under its diversity initiatives and to conduct its Quadrennial Review of broadcast ownership rules? Did the FCC improperly enact a television joint sales agreement rule?

Brief Summary: The Third Circuit held that the Federal Communications Commission's (FCC) nearly 10 year delay in meeting its court-ordered duty to redefine "eligible entities" for its preferences intended to promote minority and female broadcast ownership was unreasonable. The Court ordered the FCC to act promptly, specifically to gather adequate data on minority and female broadcast ownership and redefine "eligible entity" in a way that is more likely to promote diversity.

Second, the Third Circuit rejected broadcast owners' petition to wipe all the ownership rules off the books in response to the FCC's failure to make progress on meeting its statutory requirement to conduct Quadrennial Reviews of its common ownership rules, but warned that the FCC must carry out its legislative mandate or else face likely future litigation over the rules.

Last, the Third Circuit vacated a new FCC ownership rule designed to address the perceived problem of companies evading common ownership limits through influence exerted by advertising contracts known as joint sales agreements. Because the FCC enacted this rule without conducting the required analysis of its impact on the public interest, the Third Circuit vacated the rule and remanded the issue to the FCC.

Extended Summary: The FCC has a statutory obligation to promote minority and female broadcast ownership. To do so, the FCC has created license, construction permit, and other financing preferences to certain entities. Historically, FCC chose these entities based on race and gender of the ownership, but after the Supreme Court put significant limits on gender and race classifications, the FCC has enacted facially neutral means to support minorities. Specifically, the FCC defined an "eligible entity" as one that qualifies as a small business under the revenue-based definition used by the Small Business Administration. This measure has been criticized because there is no evidence that small businesses are more likely owned by minorities and females.

The FCC also has a statutory obligation to examine its broadcast ownership rules every four years. The broad purpose of the ownership rules is to limit consolidation in the industry and thus promote competition. From these Quadrennial Reviews, the FCC must determine whether any of its ownership rules are still necessary in the public interest as the result of competition and repeal or modify such rules as needed.

In 2004 and 2011, the Third Circuit heard challenges based on the FCC's delays in its diversity initiatives and Quadrennial Reviews. First, the FCC was held to have delayed meaningful consideration of its "eligible entity" definition. As noted, an eligible entity was a small business as measured by its revenues. In 2004, the Third Circuit instructed the FCC to evaluate definitions of "eligible entity" more likely to produce minority and female broadcast ownership, for example, by giving preferences for socially and economically disadvantaged businesses. However, by 2011, the FCC still had its revenue-based measure in place, citing poor data on existing minority and female ownership as its reason for failure to reevaluate. Thus, in 2011, the Third Circuit again ordered the FCC to consider the proposed alternate definitions.

In the present opinion, the Third Circuit noted that the FCC punted consideration of the new definitions again, similarly citing insufficient data. Although the FCC issued reports confirming the underrepresentation of minorities and women, it tentatively rejected alternate definitions and maintained the revenue-based one. For example, the FCC rejected the definition based on socially and economically disadvantaged businesses because it claimed that classification likely would not pass a strict scrutiny standard - not because of any information about whether it would increase minority or female ownership.

Here, the Third Circuit found that the FCC's failure to comply with the Court's previous orders were unreasonable. First, the agency had a duty to act since the first opinion in 2004. Second, the delay was considered unreasonable in relation to the importance of the particular statutory authority - an obligation to promote minority and women ownership. Third, due to the delay, several potentially workable definitions of "eligible entity" could not take effect. Lastly, the Third Circuit did not consider the FCC's lack of good data an administrative error, inconvenience, or practical difficulty justifying its delay.

Second, in 2011, Third Circuit held that the FCC Quadrennial Reviews were overdue - the last completed review was in 2006 and results released in 2008. As of the current opinion, two review cycles have passed without any action and the FCC has rolled the 2010 review into the 2014 review, which is still ongoing. The FCC did not provide any cogent explanation for why the Review has not been completed, but noted it would be complete by the end of 2016.

The Third Circuit listed costs from this delay, including five broadcast ownership rules in limbo. For example, in 1975, the FCC completely banned the common ownership of a daily newspaper and a television or radio station in the same market. Approximately a decade ago, the FCC determined this complete ban to be unnecessary and against the public interest, but that some restrictions were still necessary. However, due to the delay in the ownership rule review process, successful alternatives have not been found and thus the complete ban remains.

The broadcast company owners seeking deregulation argued that because of the FCC's failure to review, all five broadcast ownership rules in limbo should be vacated - in other words, the Court should "wipe the slate clean." The Third Circuit refused to vacate, noting that despite FCC's delay, it can probably justify some restrictions on broadcast ownerships and eliminating these rules would create a free-for-all in the industry. Moreover, the deregulation petitioners failed to first seek more appropriate relief, such as an Administrative Procedure Act order, and therefore waived those less-drastic options. In sum, the Third Circuit refused to vacate and warned that the FCC must meet its 2016 Review deadline or else face likely additional litigation regarding the potentially outdated ownership rules.

Lastly, in the present opinion, the Third Circuit discussed a challenge to FCC restrictions on common ownership of broadcast TV stations in the same market. To prevent companies from circumventing its ownership limits through clever contracting, the FCC has enacted "attribution" rules. For example, a joint sale agreement (JSA) allows one station to sell advertising spots but not programming to a second station. Under a JSA attribution rule, the sale of more than fifteen percent of the station's weekly advertising is attributed, or counted, towards its ownership cap.

In 2004, the Third Circuit upheld the FCC's same-market radio JSA attribution rule to be in the public interest in that it prevented common ownership rules from being undermined. The rule was not considered arbitrary nor capricious, but rather one that more accurately reflected the conditions of local markets. However, in 2014, the FCC extended this rationale to same-market television JSAs, meaning that sales of television advertising spots over the fifteen-percent threshold counted as common ownership subject to the FCC's limits. The FCC reasoned that holders of advertising interests confer a sufficient degree of control and ability to affect the programming decisions of the station. In other words, JSAs over the fifteen-percent threshold "look enough like ownership to count as such."

The Third Circuit vacated this expansion of attribution rules to television JSAs. As noted above, the FCC has obligations to conduct Quadrennial Reviews of its ownership rules and retain, repeal, or modify its rules based on a reasoned analysis. The Third Circuit agreed with the deregulation petitioners that the FCC did not fulfill this prerequisite obligation to review and determine whether the expansion of attribution rules to same-market television JSAs is in the public interest. The Third Circuit invited the FCC to replace the rule with a new one or evaluate whether the expansion is indeed in the public interest on remand.

In sum, the Third Circuit held that the FCC has delayed too long on the eligibility entity definition, as well as on its Quadrennial Review responsibilities. For the former, the Court ordered mediation to set appropriate deadlines. The Third Circuit also vacated the FCC's television JSA rule and remanded the matter to the FCC.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153863p.pdf.

Panel: Ambro, Fuentes, and Scirica, Circuit Judges

Argument Date: April 19, 2016

Date of Issued Opinion: May 25, 2016

Docket Number: Nos. 15-3863, 15-3864, 15-3865 & 15-3866

Decided: Vacated and remanded

Case Alert Author: Elizabeth C. Dolce

Counsel: Colby M. May, Esquire, Counsel for Petitioner, Howard Stirk Holdings, LLC;

Kim M. Keenan, Esquire and David Honig, Esquire, Counsel for Intervenor Petitioner Multicultural Media, Telecom and Internet Council;

Eve Klindera Reed, Esquire and Brett A. Shumate, Esquire, Counsel for Intervenor Petitioner Mission Broadcasting Inc.;

Jonathan B. Sallet, General Counsel, David M. Gossett, Deputy General Counsel, Jacob M. Lewis, Associate General Counsel, Clifford G. Pash, Jr., Esquire, James M. Carr, Esquire and Richard K. Welch, Esquire, Counsel for Respondent Federal Communications Commission;

William J. Baer, Assistant Attorney General, Kristen C. Limarzi, Esquire and Robert J. Wiggers, Esquire, Counsel for Respondent United States of America;

Helgi C. Walker, Esquire, Ashley S. Boizelle, Esquire, Lindsay S. See, Esquire, Rick Kaplan, Esquire and Jerianne Timmerman, Esquire, Counsel for Petitioner/Intervenor Respondent National Association of Broadcasters;

Patrick F. Philbin, Esquire, Counsel for Petitioner/Intervenor Respondent Nexstar Broadcasting, Inc.;

Angela J. Campbell, Esquire, Eric G. Null, Esquire, Andrew J. Schwartzman, Esquire and Drew T. Simshaw, Esquire, Counsel for Petitioner/Intervenor Respondent Prometheus Radio Project, Other Intervenor Respondents Benton Foundation, Common Cause, Media Alliance, Media Council Hawaii, National Organization for Women Foundation, Office of Communication, Inc. of the United Church of Christ, National Association of Broadcast Employees and Technicians - Communications Workers of America;

David E. Mills, Esquire, Jason E. Rademacher, Esquire and Barry J. Ohlson, Esquire, Counsel for Amicus Petitioner Cox Media Group, Inc.;

William J. Kolasky, Jr., Esquire, Kathleen M. Fones, Esquire, Katherine L. Steele, Esquire, Morgan J. Feder, Esquire, Justin Ben-Asher, Esquire, Sigrid Jernudd, Esquire, Geoffrey A. Manne, Esquire and R. Benjamin Sperry, Esquire, Counsel for Amicus Petitioner International Center for Law and Economics

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 05/27/2016 02:11 PM     3rd Circuit     Comments (0)  

May 23, 2016
  Fair Housing Rights Center v. Post Goldtex GP, LLC - Third Circuit
Headline: Fair Housing Act Accessibility Requirements Do Not Apply to Commercial Buildings Originally Constructed Before the Act's Effective Date but Converted into Residential Units After that Date

Area of Law: Housing Law

Issue(s) Presented: Do the design and accessibility requirements of the Fair Housing Act (FHA), apply to a commercial building that was originally constructed before the requirements' effective date, but converted into residential units after that date?

Brief Summary: A warehouse in Philadelphia, built in 1912 and originally used for manufacturing, was converted into an apartment building starting in 2010 by Post Goldtex and KlingStubbins. The Fair Housing Rights Center in Southeastern Pennsylvania (FHRC) conducted a site visit which revealed violations of the FHA design and construction accessibility requirements, e.g., units with kitchen counters too high for persons in wheelchairs. FHRC brought claims of housing discrimination. The District Court granted Goldtex's motion to dismiss based on the Department of Housing and Urban Development's (HUD) interpretation of the FHA, which exempts converted buildings built before March 13, 1991, the effective date of the design and construction requirements.

The Third Circuit agreed. The Court found that first, the design and construction provision was ambiguous on the issue of whether converted buildings are exempted; second, that the HUD interpretations on point were reasonable, not inconsistent with the statute, and reflected legitimate policy choices by the agency; and third, that those HUD interpretations consistently conclude that the accessibility requirements do not apply to buildings like the Goldtex apartments that are not newly constructed and not first occupied after the effective date of the requirements.

Extended Summary: In 2010, Post Goldtex bought what was originally the Smaltz Building, built in Philadelphia in 1912 and used as a factory and later for manufacturing and other business pursuits. By the end of the 1990s, the Smaltz Building had fallen into disrepair. After purchasing the building, Post Goldtex gutted it and converted it to a 163-unit apartment building, designed by KlingStubbins. The building began accepting tenants in 2013. FHRC, a non-profit corporation that investigates potentially discriminatory housing practices, conducted a site visit of the Goldtex Apartment Building in April 2014. The visit revealed numerous violations of FHA design and construction requirements, including entrance doors that were too heavy, door thresholds that were too high, and units with kitchen counters too high for persons in wheelchairs.

FHRC sued under the FHA, claiming housing discrimination against persons with disabilities. The District Court dismissed FHRC's action. The Court agreed with Goldtex's argument that the plain language of the FHA and the HUD's interpretive guidance clearly exempt converted buildings like the Goldtex Apartment Building built before March 13, 1991, the effective date of the design and construction requirements.

On appeal, FHRC argued that the HUD regulation exempting converted buildings should be found invalid because it is contrary to the unambiguous language of the FHA. The provision in question states that FHA requirements apply "in connection with the design and construction of covered multifamily dwellings for first occupancy after [March 13, 1991]." FHRC argued that this language clearly reveals Congress' intention that the accessibility requirements apply to any dwellings constructed and occupied after the provision's effective date, regardless of when the actual building was originally constructed. On the other hand, Goldtex argued that the FHA plain language clearly shows that Congress did not mean to limit "first occupancy" to a residential context, meaning that any kind of occupancy - residential, commercial, or otherwise - before the effective date would exempt the building from the requirements.

As evidenced by the parties' conflicting interpretations, the Third Circuit determined that the provision's plain language does not clearly answer whether Congress intended to limit access requirements to residential occupancy, commercial occupancy, or both. Nor does the language clearly show whether Congress intended to require buildings constructed before March 13, 1991 but remodeled after that date to comply with the accessibility requirements. Because the plain language of the statute is not clear, the Third Circuit turned to the HUD interpretations and the FHA's implementation regulations. The Court gave HUD's interpretation weight because it is not inconsistent with or forbidden by the FHA statutory requirements and the FHA's general policy of access for persons with disabilities.

HUD defines "first occupancy" as a building never before used for any purpose. This, the Third Circuit concluded, clearly exempts the Goldtex Apartment Building, which was used for several purposes since 1912, and thus "first occup[ied]" before March 13, 1991. The Court also looked to similar HUD guidance on conflicts between accessibility requirements and local historic preservation codes for support. HUD has clearly stated that in neighborhoods subject to historic codes, existing facilities converted to dwelling units are not subject to FHA's accessibility requirements, nor are alterations, rehabilitations, or repairs of covered multifamily dwellings. Lastly, the Court pointed to a U.S. Department of Justice and HUD joint statement noting that the FHA does not apply to alterations or renovations of nonresidential buildings into residential buildings.

In sum, based on clear HUD interpretative regulations and other guidance, the Third Circuit held that the FHA accessibility requirements do not apply to buildings like the Goldtex Apartment Building that are converted from existing buildings and first occupied, for residential or commercial purposes, before the effective date of the requirements.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151366p.pdf.

Panel: Fuentes, Smith, and Nygaard, Circuit Judges

Argument Date: October 6, 2015

Date of Issued Opinion: May 17, 2016

Docket Number: No. 15-1366

Decided: Affirmed

Case Alert Author: Elizabeth C. Dolce

Counsel: Stephen F. Gold, Esquire and Rocco J. Iacullo, Esquire, Counsel for Appellant; Walter S. Zimolong, III, Esquire, Counsel for Appellee Post Goldtex; Anthony W. Hinkle, Esquire, Kathryn E. Pettit, Esquire, Kevin B. Watson, Esquire, and Barbara W. Mather, Esquire, Counsel for Appellee KlingStubbins.

Author of Opinion: Circuit Judge Nygaard

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 05/23/2016 02:59 PM     3rd Circuit     Comments (0)  

  United States v. One Palmetto State Armory PA-15 Machinegun Receiver/Frame, Unknown Caliber Serial Number: LW001804; Wat
Headline: The Second Amendment Does Not Protect the Possession of Machine Guns

Area of Law: Second Amendment

Issue(s) Presented: Is the Gun Control Act's ban on machine gun possession facially unconstitutional under the Second Amendment? And does the ban apply to a trust despite "trusts" not being included in the statutory list of persons to which the ban applies?

Brief Summary: Ryan S. Watson, sole trustee of Watson Family Gun Trust, applied to make and register a machine gun. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) eventually disapproved Watson's application, and Watson was asked to surrender his machine gun. Watson claimed the ban on machine gun possession was facially unconstitutional under the Second Amendment. Watson alternatively claimed that ban did not apply to the Watson Family Gun Trust because the ban only speaks to "persons" and a trust is not a person under the statute.

The Third Circuit held that the Second Amendment does not protect the possession of machine guns and thus, the ban is not unconstitutional. The Second Amendment, the Court noted, only protects weapons "in common use" - not dangerous or unusual weapons, like machine guns. The Third Circuit also held that although "trust" is not one of the listed entities in the statutory definition of "person," machine guns held in trust are not exempt from the ban. Watson, the trustee, is the individual human being seeking to possess a gun on behalf of the trust and is therefore prohibited from any conduct forbidden to natural persons by the ban.

Extended Summary: Watson, sole trustee of Watson Family Gun Trust, applied to make and register an M-16-style machine gun. ATF mistakenly approved his request. After realizing the mistake, ATF disapproved Watson's application, and Watson was asked to surrender the gun he made. He did so under protest. That same day, Watson filed suit against the U.S. Attorney General and ATF Director, claiming the ban on machine gun possession, the Gun Control Act, was unconstitutional facially and as applied to him (although he did not assert any facts for the ban as applied to him, so the Third Circuit did not consider it). Watson alternatively claimed that the ban does not apply to the Watson Family Gun Trust because the ban only speaks to "persons" and a trust is not a person under the statute's definition.

The Gun Control Act prohibits private manufacture of machine guns by making it unlawful for any person to transfer or possess a machine gun. Narrow exceptions exist for certain government entities and machine guns lawfully possessed before 1986. The Act defines "person" as an individual, corporation, company, association, firm, partnership, society, or joint stock company.

The Third Circuit agreed with the District Court in holding that the ban does not violate the Second Amendment, and thus the Gun Control Act's ban of machine guns is not unconstitutional. The Court looked to the Second Amendment as interpreted in the Supreme Court case, District of Columbia v. Heller. There, the Supreme Court held that the Second Amendment only protects weapons "in common use," such as handguns used for self-defense in the home, and not dangerous or unusual weapons. Machine guns, according to the Third Circuit and other courts, are not commonly used for lawful purposes like sporting use or personal protection and, therefore, are outside the scope of Second Amendment protection. Moreover, Heller suggests machine guns and other arms most useful in military service may be banned without burdening Second Amendment rights.

The Third Circuit also rejected Watson's argument that the ban does not apply to a trust, as it is not a "person" under the statute. Although "trust" is not one of the listed entities in the statutory definition of "person," a trust is not an entity distinct from its trustees. Watson is the individual human being seeking to possess a gun on behalf of the trust; regardless of his status as trustee, he is also a natural person and therefore prohibited from any conduct forbidden to natural persons by the ban. Also, to interpret "persons" as Watson does would allow anyone to avoid liability by placing a machine gun in trust - an exception the Third Circuit noted would swallow the rule.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/152859p.pdf.

Panel: Ambro and Krause, Circuit Judges; Anne E. Thompson, District Judge

Argument Date: April 4, 2016

Date of Issued Opinion: May 18, 2016

Docket Number: No. 15-2859

Decided: Affirmed

Case Alert Author: Elizabeth C. Dolce

Counsel: Alan A. Beck, Esquire, David R. Scott, Esquire, and Stephen D. Stamboulieh, Esquire, Counsel for Appellant; Patrick Nemeroff, Esquire, Michael S. Raab, Esquire, Jacqueline C. Romero, Esquire, and J. Alvin Stout, III, Esquire, Counsel for Appellee; Robert J. Olson, Esquire, and William J. Olson, Esquire, Counsel for Amicus-Appellants; Joran Eth, Esquire, James R. McGuire, Esquire, and Adam M. Regoli, Esquire, Counsel for Amicus-Appellee.

Author of Opinion: District Judge Thompson

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 05/23/2016 02:38 PM     3rd Circuit     Comments (0)  

  United States v. Johnny Vasquez-Algarin - Third Circuit
Headline: Third Circuit Expands Definition of Probable Cause for Entry of Third Party Residences.

Area of Law: Criminal, Search and Arrest Warrants

Issues Presented: How certain must officers be that a suspect resides at and is present at a particular address before forcing entry into a private dwelling?

Brief Summary: Officers obtained an arrest warrant for a suspect and information that he was living at a residence in Harrisburg, Pennsylvania. Upon arriving and knocking on the door, there was no response but the officers had reason to believe someone was inside and entered forcibly. They did not find the suspect, but Defendant as well as evidence of drug related crimes was present, and they made an arrest. The Third Circuit determined that the entry was unlawful and the evidence must be suppressed. The Court reasoned that law enforcement with only an arrest warrant can force entry into a home only if they have probable cause to believe the arrestee resides at and is present within the residence.

Extended Summary: An arrest warrant for Edguardo Rivera was issued in 2010 for homicide. Deputy Marshal Duncan received information from another officer that Rivera was "staying" or "residing" at an address in Harrisburg, Pennsylvania. Upon arriving at the residence with other officers and knocking on the door, they received no response but heard movement inside to indicate there were people attempting to hide their presence. The officers then made a forcible entry. Rivera was not in the house at the time, but Defendant Vasquez-Algarin was present and also in plain view was paraphernalia indicating intent to distribute illicit substances. A protective sweep revealed additional drugs, weapons, and keys for a stolen car. The officers then arrested him, having no previous warrant up to that point.
Vasquez-Algarin and his two brothers, who also lived with him, were charged with federal distribution and possession with intent to distribute cocaine and conspiracy. He pled not guilty and moved to suppress the evidence found at the scene. The district court denied the motion, finding that the officers had probable cause to believe the fugitive was both a resident at the scene and present when they arrived. Vasquez-Algarin was convicted on both counts, and he appealed the decision on the grounds that the officers needed a search warrant to enter the home when the suspect did not in fact reside there.
The Court began by explaining that the entry was reasonable if the police had sufficient information to support a reasonable belief that the suspect was present and resided there at the time. To satisfy reasonable belief, the police needed probable cause to make entry. In order to determine reasonableness, the Court examined existing Supreme Court standards as they applied to the constitutionality of in-home arrests.
After reviewing Supreme Court precedent, the Court reasoned that law enforcement with only an arrest warrant can force entry into a home only if they have probable cause to believe the arrestee resides at and is present within the residence. In application to the present case, there was no such probable cause and as such the entry was unlawful as well as the subsequent finding of evidence and arrest. There was no adequate evidence that Rivera was a resident of the house in question and no knowledge of whether he was inside at the time as opposed to anyone else.
The Court concluded by addressing whether the good faith requirement should apply to such circumstances. Applying Supreme Court jurisprudence, the Court determined the good faith exception did not apply. Evidence that the officers were themselves concerned Rivera may not have lived there dispensed with this argument, as well as the fact that a reasonable officer may have concluded the search was illegal.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/151941p.pdf

Panel: Fuentes, Krause, Roth, Circuit Judges

Argument Date: February 11, 2016

Date of Issued Opinion: May 2, 2016

Docket Number: No. 1-11-cr-00200-001

Decided: Vacated and Remanded.

Case Alert Author: John Farrell

Counsel: Ronald A. Krauss, Esq., Frederick W. Ulrich, Esq. [Argued], counsel for Appellant; Daryl F. Bloom, Esq. [Argued], Stephen R. Cerutti, II, Esq., counsel for Appellee

Author of Opinion: Judge Krause

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 05/23/2016 11:20 AM     3rd Circuit     Comments (0)  

May 20, 2016
  Sack v. Department of Defense
Headline: D.C. Circuit finds students qualify for reduced fees for FOIA requests

Area of Law: Freedom of Information Act

Issue(s) Presented: Whether a Ph.D student making a FOIA request is eligible for reduced fees available to educational institutions..

Brief Summary: Appellant, a student at the University of Virginia, submitted Freedom of Information Act (FOIA) requests to the Department of Defense seeking reports about its use of polygraph examinations, as well as related documents about those examinations, as part of the research for her dissertation on polygraph bias. Sack informed DOD of the purpose of her requests and asked to be categorized as an educational-institution requester, which limits the fees DOD could charge for complying with her FOIA request. The Department of Defense refused to categorize Sack as an educational-institution requester and required her to pay about $900 to conduct the search. Sack filed suit challenging the handling of her request. The U.S. District Court for the District of Columbia granted summary judgment to DOD, concluding that Sack was not an educational-institution requester entitled to reduced fees, and Sack appealed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that Sack, as a student pursuing school-sponsored research, was an educational-institution requester within the meaning of FOIA. FOIA establishes three categories of document requests that are subject to different fee structures. As relevant here, fees for noncommercial requests made by educational institutions, noncommercial scientific institutions, and representatives of the news media are limited to photocopying costs. 5 U.S.C. 552 (a)(4)(A)(ii)(II).

The statute does not define the term "educational institution" but does direct agencies subject to FOIA to promulgate regulations specifying a fee schedule for processing requests and "establishing procedures and guidelines for determining when such fees should be waived or reduced." The statute further requires that the fee schedule must conform to guidelines promulgated by the Director of the Office of Management and Budget (OMB) and be uniform for all agencies. OMB guidelines, from which Department of Defense guidelines derive, define an educational institution in terms that encompass the University of Virginia, require that the documents sought be in furtherance of the institution's program of scholarly research and not for a commercial use, and impose a further requirement that the request serve a scholarly research goal of the institution, rather than an individual goal. In expanding on the institutional v. individual goal distinction, the OMB guidelines make clear that teachers may be eligible for reduced fees but conclude that "a student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify."

The D.C. Circuit found that excluding students from the definition of educational institution was inconsistent with the language of 5 U.S.C. 552 (a)(4)(A)(ii)(II), which referred to educational institutions without drawing a distinction between students and teachers. The court relied on dictionary definitions of educational institutions, which include students as well as teachers. The court also found unpersuasive DOD's argument that the inclusion of teachers, but not students, in discussions of the bill in the Senate signaled legislative intent to exclude. The court concluded that while agencies may request reasonable assurances that student requests further coursework or other school-sponsored activities, they may not categorically refuse them educational-institution treatment.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/14-5039-1614275.pdf

Panel: Tatel, Griffith, Kavanaugh

Argument Date: February 18, 2016

Date of Issued Opinion: May 20, 2016

Docket Number: 14-5039

Decided: Reversed

Case Alert Author: Ripple Weistling

Counsel: Kelly B. McClanahan for appellant.

Peter R. Maier and R. Craig Lawrence for appellee.

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/20/2016 05:16 PM     DC Circuit     Comments (0)  

May 4, 2016
  Sixth Circuit -- New guidelines didn't justify sentence reduction for career offender
Headline: Sentence reduction due to new guidelines is not appropriate when another relevant guideline supports original sentence.

Case: USA v. Smith -- Sixth Circuit

Area of law: Criminal Law; Sentencing; Changes in Sentencing Guidelines; Conflicting Guidelines

Issue presented: May a prisoner's sentence be reduced based on new sentencing guidelines for one offense if multiple offenses apply and another applicable guideline supports the original sentence?

Brief summary: A prisoner appealed the district court's denial of his motion to reduce his 360-month sentence under 18 U.S.C. § 3582(c)(2), which allows for a sentence reduction when the prisoner's sentencing range has been lowered by a future amendment. An amendment to the drug-trafficking sentencing guidelines reduced his offense to a range lower than the original 360 months to life, prompting him to move for sentence reduction. But § 3582(c)(2) does not permit a sentence reduction when the operation of another applicable guideline prevents the lower sentence. In the prisoner's case, even if the reduced, amended sentencing guidelines for drug-trafficking had applied at the time of his sentencing, his status as a career offender would have triggered a range of 360 months to life. Thus, the prisoner did not qualify for a reduction.

Extended summary: A prisoner was convicted for participating in a drug conspiracy and maintaining a drug house. Although his presentencing report noted that he qualified as a career offender, the district court sentenced him based on the sentencing guidelines for drug-trafficking offenses. At the prisoner's sentencing, the drug-trafficking provision produced a higher offense level than did the career-offender provision: a guidelines range of 360 months to life. The district court sentenced him to 360 months of imprisonment.

The prisoner moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) and an amendment to the drug-trafficking sentencing guidelines, which lowered the base-offense level for drug-related crimes. But § 3582(c)(2) does not permit a sentence reduction when the operation of another guideline applicable to the same prisoner prevents the lower sentence. The district court denied his motion, and he appealed.

The Sixth Circuit affirmed, concluding that the district court correctly denied the prisoner's motion because the amendment did not in effect lower all the guideline ranges applicable to his case. Section 3582(c)(2) permits a district court to reduce a defendant's sentence if the defendant "has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission" and if "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." In this prisoner's case, even if the reduced sentencing guidelines had been amended before his sentencing, he still would have been subject to a guidelines range of 360 months to life as a career offender. Because the career-offender offense level "shall apply" when it is greater than the otherwise applicable offense level, the prisoner was not eligible for a sentence reduction under § 3582(c)(2).

Panel: Circuit Judges Alice M. Batchelder, and John M. Rogers; District Judge James L. Graham.

Date of issued opinion: February 25, 2016

Docket number: 15-5853

Decided: Affirmed.

Counsel: ON BRIEF: Elizabeth Rogers, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee. Eric W. Prisoner, Forrest City, Arkansas, pro se.

Author of opinion: PER CURIAM

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0050p-06.pdf

    Posted By: Mark Cooney @ 05/04/2016 01:42 PM     6th Circuit     Comments (0)  

May 3, 2016
  United States v. Lundin
Headline: The Ninth Circuit panel held that the warrantless search of the defendant's home was not justified by exigent circumstances, explaining that the "knock and talk" exception to the Fourth Amendment's warrant requirement does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant.

Area of Law: Criminal Law, Warrantless Search, Motion to Suppress Evidence, Knock and Talk Exception

Issue Presented: Whether police officers were permitted to knock on Lundin's door under the so-called "knock and talk" exception to the warrant requirement, which permits law enforcement officers to "'encroach upon the curtilage of a home for the purpose of asking questions of the occupants,'" when the officers' purpose in knocking on Lundin's door was to find and arrest him.

Brief Summary: Humboldt County Sherriff's Office issued a "Be on the Look Out" ("BOLO") and request for arrest of defendant Eric "Whitey" Lundin ("Lundin") after Deputy Aponte interviewed Susan Hinds ("Hinds") at the local hospital. Hinds gave a statement in which she described Lundin breaking into her home, forcing her to ingest illegal substances, and driving her away against her will while threatening to kill her.
Police had probable cause to arrest Lundin but no warrant was issued for the search of his home. In response to the BOLO and request for arrest, law enforcement officers went to Lundin's residence and knocked on the door without identifying themselves. While standing on the front porch, they heard crashing noises coming from the back of Lundin's home. Officers ran to the back of the house and detained Lundin. While he was placed in the back of the patrol car, officers proceeded to search Lundin's residence and backyard. At the end of the search, officers recovered two firearms which corroborated Hinds' description of the prior incidents.
Lundin was charged with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Lundin moved to suppress the evidence of the firearms as fruit of the poisonous tree because officers illegally searched his home without a warrant. The district court suppressed evidence of the firearms, and the government appealed.
On appeal, the government argued its authority to conduct a warrantless search of the defendant's home was justified as an exigent circumstance. Since the exigency arose out of the crashing noises coming from the backyard which was caused by the officers' knock at Lundin's front door, the government was required to justify its presence on the defendant's porch in the first place. The government argued that under the knock and talk exception, officers lawfully approached the defendant's residence and knocked on his door. The Ninth Circuit panel held that the officers exceeded the scope of knock and talk exception because (1) they failed to act as an ordinary private citizen would as an uninvited guest and (2) they subjectively intended to arrest the defendant at the time they approached his residence.


Significance: Although law enforcement officers may conduct a warrantless search of a home when "the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment, exigent circumstances cannot justify a warrantless search when the police "create the exigency by engaging . . . in conduct that violates the Fourth Amendment."
Extended Summary: Deputy Aponte of the Humboldt County Sheriff's Office ("HCSO") interviewed 63 year old Susan Hinds ("Hinds") at a local hospital. She claimed she was the victim to kidnapping several hours earlier. Hinds told Deputy Aponte that the defendant Eric "Whitey" Lundin ("Lundin") knocked on the door of her mobile home and that, when she opened the door, Lundin grabbed her by the neck and forced his way inside.
Hinds told Deputy Aponte that once inside the mobile home, Lundin brandished a compact silver handgun and forced her into his truck where he forced her to ingest methadone pills and pointed out locations where he could safely dispose of her body. Lundin drove Hinds back to her mobile home, told her that he only meant to scare her, and warned her not to call the police.

Deputy Aponte then asked dispatch to issue a "Be On the Look Out" ("BOLO") for Lundin and a request for Lundin's arrest under California Penal Code § 836, which authorizes a warrantless arrest when there is probable cause to believe a suspect has committed a felony. Dispatch issued the BOLO and arrest request just before 2:00 a.m.

Upon receiving the BOLO and arrest request, police officers approached Lundin's front door without identifying themselves. They stood on the porch, knocked loudly, waited thirty seconds for an answer, and then knocked again. After the second knock, the officers heard several loud crashing noises coming from the back of the house. The officers ran to the back of the house and encountered Lundin. He was ordered to put his hands up and was then handcuffed and placed in a patrol car.

The officers then searched Lundin's backyard, patio and house, finding a clear plastic freezer bag containing a silver revolver and a black semiautomatic handgun. Deputy Aponte confirmed that the handguns matched Hinds' description of the guns used during the earlier incident.

Lundin was charged with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Lundin moved to suppress the evidence obtained from the patio as fruits of an unreasonable warrantless search. The district court granted the motion and suppressed the evidence of the two handguns seized on the patio. On appeal, the government argued that the warrantless search of Lundin's home was justified either due to an (1) exigent circumstance or (2) protective sweep. In the alternative, the government contended the handguns are admissible under the inevitable discovery exception to the exclusionary rule.

Exigent Circumstances

A warrantless search is presumptively invalid. However, law enforcement officers may conduct a warrantless search of a home in certain exigent circumstances. Because the officers in this case had no reason other than the crashing noises coming from the backyard to believe that there were exigent circumstances justifying a warrantless search of Lundin's home, and that the officers' knock at Lundin's front door caused Lundin to make the crashing noises, the government was required to show that the officers lawfully stood on Lundin's front porch and knocked on his door.
Knock and Talk Exception

The government argued that under the "knock and talk" exception an officer does not violate the Fourth Amendment by encroaching on the curtilage of a home and knocking on the door with the intent to ask the resident questions. The exception is similar to a consensual encounter in that the consent is implied from treating a knock on the door as an invitation.

Ruling that the application of the exception ultimately depends upon whether the officers have an implied license to enter the curtilage, the panel rejected application of the knock and talk exception for two reasons. First, the panel noted that "unexpected visitors are customarily expected to knock on the front door of a home only during normal waking hours. * * * Here, however, the officers knocked on Lundin's door around 4:00 a.m. without evidence that Lundin generally accepted visitors at that hour, and without a reason for knocking that a resident would ordinarily accept as sufficiently weighty to justify the disturbance." Second, "the scope of a license is often limited to a specific purpose, Jardines, 133 S. Ct. at 1416, and the customary license to approach a home and knock is generally limited to the "purpose of asking questions of the occupants." Here, however, the officers' purpose in knocking on Lundin's door was to arrest him. Accordingly, the Ninth Circuit held that officers violated Lundin's Fourth Amendment right to be free from unlawful searches when they stood on his porch and knocked on his front door. Thus, unconstitutional conduct caused the allegedly exigent circumstance - the crashing noises in the backyard - which cannot justify the search resulting in the seizure of the two handguns.

Protective Sweep

The protective sweep doctrine authorizes quick and limited warrantless inspections of spaces where a person may be found when there are articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbored an individual posing a danger to those on the arrest scene.
Officers had no reasonable, articulable suspicion that anyone other than Lundin was present at his residence. Thus, the only plausible threat to the safety of those on the scene was Lundin himself. But by the time the officers conducted the sweep of Lundin's home, he was already handcuffed in the patrol vehicle. Therefore, officers lacked a reasonable ground for believing that there was a danger that would have justified the sweep of Lundin's home.

Inevitable Discovery

Lastly, the court held that the inevitable discovery doctrine does not apply to warrantless searches where probable cause existed and a warrant could have been obtained but was not, because it would encourage officers never to bother to obtain a warrant.

The panel affirmed the Motion to Suppress evidence of the firearms.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/22/14-10365.pdf
Panel: William A. Fletcher, Marsha S. Berzon, and Carlos T. Bea
Argument Date: September 18, 2015
Date of Issued Opinion: March 22, 2016
Docket Number: 14-10365
Decided: Mar. 22, 2016
Case Alert Author: Mia Lomedico
Counsel:
Barbara J. Valliere (argued), Chief, Appellate Division, and Melinda Haag, United States Attorney, San Francisco, California, for Plaintiff-Appellant.
Geoffrey A. Hansen (argued), Chief Assistant Federal Public Defender, Steven G. Kalar, Federal Public Defender, and Steven J. Koeninger, Research and Writing Attorney, San Francisco, California, for Defendant-Appellee.
Author of Opinion: Judge W. Fletcher
Circuit: Ninth
Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 05/03/2016 03:24 PM     9th Circuit     Comments (0)  

  Radcliffe v. Experian Info. Sols. - Ninth Circuit
Area of Law: Civil Procedure, Class Actions

Headline: Ninth Circuit panel holds that California law, that requires per se disqualification when an attorney has been shown to possess a simultaneous conflict of interest in her representation of multiple clients, does not require automatic disqualification in class action cases.

Issues Presented: Whether California law applies its rule of automatic disqualification of class counsel for conflicts of simultaneous representation in a class action context.

Whether the district court abused its discretion in holding that class counsel remained adequate class representatives under Federal Rule of Civil Procedure 23(g)(1).

Brief Summary: Subsequent to consolidation of class action claims against three major credit bureaus, the parties entered into a settlement agreement, which included an incentive awarded to any "Named Plaintiff[] serving as class representatives . . . in support of the Settlement." After an initial approval of the settlement, some of the plaintiffs objected, arguing that the incentive award produced a conflict of interest between the absent class members and the class representatives. The Ninth Circuit panel agreed, finding that the incentive award "changed the motivation for the class representatives" and created a simultaneous conflict of interests. Accordingly, the panel reversed the settlement approval, and remanded with instructions for the district court to "determine when the conflict arose and if the conflict continues under any future settlement agreement."

On remand, the district court denied the objecting plaintiffs' motion for disqualification of lead counsel because the conflict at issue was short-term, produced by an inoperative settlement, and was governed by case law indicating a "willingness to use the disqualification rule flexibly." On second appeal, the Ninth Circuit panel agreed in light of an absence of California policy justifying application of the automatic disqualification rule to class action cases, Federal policy's reluctance toward disqualification of class action counsel, and the mootness of the conflict of interest that was cured when the Ninth Circuit panel reversed approval of the settlement agreement.

Significance: California law does not require automatic disqualification of counsel as class representative in a class action when the attorney is shown to possess a simultaneous conflict of interest.

Extended Summary: This case involves consolidated class action claims against Experian Information Systems, Inc., TransUnion LLC, and Equifax Information Services LLC for violation of the Fair Credit Reporting Act (FCRA) as well as California state law credit reporting regulations. After the district court consolidated a case known as the White lawsuit with a case known as the Hernandez lawsuit, counsel for the plaintiffs in the Hernandez lawsuit ("Hernandez Counsel") was appointed as lead counsel. Subsequent to consolidation of the actions, the parties entered into a $45 million settlement agreement, which included an incentive awarded to any "Named Plaintiff[] serving as class representatives . . . in support of the Settlement." After an initial approval of the settlement, the plaintiffs in the White Lawsuit ("White Plaintiffs") objected, arguing that the incentive award produced a conflict of interest between the absent class members and the class representatives.

On appeal of the settlement agreement to the Ninth Circuit, the panel agreed with the White Plaintiffs that the incentive award "changed the motivation for the class representatives" and thus "class counsel was simultaneously representing clients with conflicting interests." Accordingly, the panel reversed the settlement approval and remanded with instructions for the district court to "determine when the conflict arose and if the conflict continues under any future settlement agreement."

On remand, counsel for the plaintiffs in the White lawsuit ("White Counsel") moved for a disqualification of Hernandez Counsel and argued that California requires an automatic disqualification of counsel upon a finding of a "simultaneous conflict of interest in its representation of multiple clients." In its opposition, Hernandez Counsel cross-moved for re-appointment as interim class counsel. The district court denied White Counsel's motion for disqualification and granted Hernandez Counsel's cross-motion for re-appointment finding that the conflict at issue was short-term, produced by an inoperative settlement (reversed settlement approval), and was governed by case law indicating a "willingness to use the disqualification rule flexibly. White Counsel appealed.

The first issue addressed on appeal was whether "California law . . . require[s] automatic disqualification in class action cases." Hernandez Counsel argued that California's disqualification rule is inapplicable in the class action context while White Counsel contended that California's disqualification rule was applicable because California's case law description of the automatic disqualification rule is expressed in per se terms and does not expressly exclude class actions.


The Ninth Circuit panel first noted that the policy justifications for California's automatic disqualification rule do not apply to class actions. As explained by the California Supreme Court: "A client who learns that his or her lawyer is also representing a litigation adversary, even with respect to a matter wholly unrelated to the one for which counsel was retained, cannot long be expected to sustain the level of confidence and trust in counsel that is one of the foundations of the professional relationship" and that "[t]he most egregious conflict of interest is representation of clients whose interests are directly adverse in the same litigation." The panel concluded that neither circumstance fits the context "of the lawyer who represents a class of plaintiffs whose interests may in some ways be adverse to each other, but all of whose interests are adverse to the defendant." The panel further concluded that disqualification upon finding some adversity among plaintiffs is not in accord with federal case law that seeks to resolve conflicts of interest by considering the extent of the conflict, whether the conflict has been cured, and the consequence of disqualification of counsel who is most familiar with the lawsuit. The panel further ruled that "the district court could reasonably conclude that the conflict of interest was appropriately cured when we rejected the settlement agreement that contained the improper conditional incentive award."

Next, the panel addressed White Counsel's contention that the district court erred in holding that the Hernandez Counsel remained adequate counsel. According to White Counsel, the conflict of interest created by the placement of the incentive award in the settlement agreement potentially exposed Hernandez Counsel to civil liability for misconduct, which in turn may encourage Hernandez Counsel to seek an expedited settlement to advance its own interest in avoiding liability. The panel sided with the district court's conclusion "that neither precedent nor policy supports the proposition that potential civil liability renders attorneys inadequate to represent a class."

Lastly, the panel addressed White Counsel's argument that the district court abused its discretion by considering White Counsel's unrealistic damage calculations in determining that Hernandez Counsel is "best able" to represent the class. The panel concluded that consideration of White Counsel's unreasonably high damage valuation was not an abuse of discretion because the district court "carefully analyzed each factor under Rule 23(g)(1)" before ruling that Hernandez Counsel "possessed greater experience and knowledge relevant to [the] case."

For the foregoing reasons, the panel affirmed.

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/28/14-56101.pdf

Panel: Before: Mary M. Schroeder and Jay S. Bybee, Circuit Judges and Jon S. Tigar,* District Judge.

Argument Date: November 5, 2015

Date of Issued Opinion: March 28, 2016

Docket Number: 14-5601

Decided: Affirmed.

Case Alert Author: Andre Clark

Counsel: George F. Carpinello (argued) and Adam R. Shaw, Boies, Schiller & Flexner LLP, Albany, New York; Daniel Wolf, Law Offices of Daniel Wolf, Washington D.C.; Charles W. Juntikka, Charles Juntikka & Associates LLP, New York, New York, for Plaintiffs-Appellants.

F. Paul Bland, Jr. (argued), Public Justice, P.C., Washington, D.C.; James A. Francis and David A. Searles, Francis & Mailman, Philadelphia, Pennsylvania; Michael W. Sobol, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, California; Michael A. Caddell and Cynthia B. Chapman, Caddell & Chapman, Houston, Texas; Arthur H. Bryant, Public Justice, P.C., Oakland, California; Stuart T. Rossman and Charles M. Delbaum, National Consumer Law Center, Boston, Massachusetts; Leonard A. Bennet and Matthew Erausquin, Consumer Litigation Associates, P.C., Newport News, Virginia; Lee A. Sherman, Callahan, Thompson, Sherman & Caudill, Irvine, California, for Plaintiffs-Appellees Jose Hernandez, Robert Randall, Bertram Robison, and Kathryn Pike.

Daniel John McLoon, Jones Day, Los Angeles, California, for Defendant-Appellee Experian Information Solutions, Inc.

Stephen J. Newman, Stroock, Stroock & Lavan LLP, Los Angeles, California, for Defendant-Appellee Transunion, LLC.

Author of Opinion: Judge Tiger

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 05/03/2016 03:22 PM     9th Circuit     Comments (0)  

  Shirley v. Yates - Ninth Circuit
Headline: The Ninth Circuit panel elaborates on Batson's three-step burden-shifting framework for evaluating claims of discriminatory peremptory strikes and clarifies the requisite burdens that must be met for Step Two and Step Three in a narrow set of Batson cases in which the prosecutor cannot actually remember the reason why he struck the veniremembers..

Areas of Law: Criminal and Constitutional Law

Issues Presented: Whether the California Court of Appeal erred in applying the People v. Box, 23 Cal. 4th 1153, 1188 (2000) standard to Batson Step One.

In cases where the prosecutor cannot actually remember the reasons he struck veniremembers, when will circumstantial evidence consisting of the prosecutor's testimony both to his general jury selection approach and that he is confident one of these race-neutral preferences was the actual reason for the strike be sufficient to overcome a prima facie case of discrimination.

Brief Summary: Following convictions for first-degree burglary of an unoccupied residence and second-degree robbery of a sandwich shop, the Ninth Circuit panel reversed the district court's denial of defendant's habeas corpus petition made pursuant to Batson. The panel held that, because the California Court of Appeal acted contrary to clearly established law when it based its Batson Step One prima facie analysis on an erroneous standard, it was appropriate for the district court to determine de novo whether the defendant had raised an inference of racial bias. The Ninth Circuit panel agreed with the district court that the defendant raised an inference of discrimination sufficient to meet the defendant's burden at Batson Step One. The panel then turned to Steps Two and Three, addressing the narrow set of cases where the prosecutor cannot remember the reason why he struck veniremembers, and held that, if the prosecutor testifies both to his general jury selection approach and is confident that these race-neutral preferences were the actual reason for the strike, then the state met its burden under Batson Step Two. However, the panel also held that "this evidence alone will seldom be enough at Step Three to overcome a prima facie case unless the prosecutor has a regular practice of striking veniremembers who possess an objective characteristic that may be clearly defined. Accordingly, the panel found that the district court clearly erred in denying the defendant's claim because the district court did not determine whether the prosecutor had offered circumstantial evidence sufficient to support the inference that he actually struck R.O. for the reason proffered. In a case where the prosecutor does not recall his actual reason for striking the juror in question, a prosecutor's stated vague approach to jury selection provides little or no probative support for a conclusion at Batson Step Three that the peremptory strike was for the reason he proffered. The panel concluded that the defendant's prima facie case was sufficient to carry his burden of showing by a preponderance of the evidence that the strike of R.O. was motivated in substantial part by race.

Significance: The panel weighed in on the issue, hitherto unaddressed by the Ninth Circuit, whether a list of standard considerations, absent affirmative evidence that they were used in the particular case in question, is competent evidence of a prosecutor's actual reasons for striking certain jurors. The panel elaborates held that Batson's Step Two is met in the narrow set of cases where: (1) the prosecutor does not actually remember why a veniremember was peremptorily struck and (2) the prosecutor testifies both to his general jury selection approach and that he is confident that one of these race-neutral preferences was the actual reason for the peremptory strike. The panel further held that such evidence, while sufficient for Step Two, is ordinarily insufficient for Step Three, unless the prosecutor has a regular practice of striking veniremembers who possess a clearly defined objective characteristic.

Extended Summary: Darryl Shirley (Shirley) was indicted of the first-degree burglary of an unoccupied residence and the second-degree robbery of a sandwich shop; in both instances, nobody was harmed and no weapons were involved.

In California superior court, a sixty-person venire was empanelled and sworn; five of the veniremembers were black, as is Shirley. Of those five veniremembers, only one was seated on the jury. Of the four veniremembers who were dismissed, two were dismissed for cause and two, L.L. and R.O., were peremptorily struck by the state. After R.O. was peremptorily struck, Shirley made a motion pursuant to Batson, on grounds that the peremptory strikes of L.L. and R.O. were racially discriminatory.

Under Batson's three-step burden-shifting framework for evaluating claims of discriminatory peremptory strikes, (1) the defendant first bears the burden to "produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred (Johnson v. California, 545 U.S. 162, 170 (2005)); (2) once the defendant makes a prima facie case, "the burden shifts to the State to explain adequately the racial exclusion by offering a permissible race-neutral justification for the strikes"; and (3) "f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." The motion was denied on the ground that Shirley had failed to raise a prima facie case.

Following a conviction for both crimes, Shirley was sentenced to two consecutive twenty-five-years-to-life prison terms and four consecutive five-year sentence enhancements based on previous convictions. On appeal, the California court of appeal affirmed the California superior court citing Box, 23 Cal. 4th at 1188, on grounds that, "when the record 'suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm.'" The California court of appeal concluded that: (1) L.L.'s prior misdemeanor conviction for fraud and possible familiarity with Shirley and one of Shirley's relatives were two race-neutral reasons for dismissing L.L. and (2) R.O.'s "age and corresponding lack of experience" was a legitimate race-neutral reason for striking her.

Shirley then filed a federal habeas corpus petition in federal district court pursuant to Batson. The district court held that the California court of appeal acted contrary to clearly established Supreme Court precedent by finding, on the basis of speculation about possible race-neutral reasons for exercising peremptory strikes, that Shirley failed to raise an inference of discrimination and thereby failed to raise a prima facie case. On review de novo, the district court found that Shirley satisfied Batson Step One by showing that two out of three eligible black veniremembers were peremptorily struck and that R.O. was similar to a white veniremember who was seated and ordered an evidentiary hearing on the prosecutor's reasons for exercising the challenged peremptory strikes.

At the evidentiary hearing and upon review of the voir dire transcript, the prosecutor testified that he did not recall the specific reasons for the peremptory strikes as to L.L. and R.O. and that, although he took contemporaneous notes during voir dire, those notes were not kept and the prosecution's case file was no longer available. Although the prosecutor could not recall the exact reasons for the peremptory strikes as to L.L. and R.O., the prosecutor testified that he had a general set of criteria that he looked for in a prospective juror and that: (1) L.L. was peremptorily struck due to L.L.'s statement that Shirley looked familiar to her, L.L. had recently met and was considering doing business with an individual who may have been related to Shirley, and L.L. had been convicted of a crime as an adult and (2) R.O. was peremptorily struck because R.O. lacked the requisite "life experience."

After the evidentiary hearing, the district court found that the prosecutor's testimony was insufficient to satisfy the state's burden of production under Step Two because there must be proof of actual reasons and the court cannot infer those reasons from general practices and apply it to a particular case. Nevertheless, the district court judge concluded that: (1) L.L.'s removal from the venire was entirely reasonable because even without the misdemeanor conviction for a dishonesty-related offense, "a prosecutor would be very likely to strike somebody who might have recognized the defendant and might be doing business with a relative of his" and (2) R.O.'s removal from the venire was "very close," but he could "sort of see prosecutors wanting somebody who has got an education." On those grounds, the district court denied relief to Shirley and Shirley appealed.

On appeal, the Ninth Circuit panel agreed with the district court and held that Shirley satisfied Step One on grounds that under Johnson, 545 U.S. at 166-67, a defendant makes out a prima facie case if he produces evidence sufficient to support a "reasonable inference" of discrimination. Thus, not only was the California court of appeal's reliance on Box improper, since Box relied on the discredited pre-Johnson standard, but the fact that the prosecutor peremptorily struck all or most veniremembers of the defendant's race was sufficient to make a prima facie case at Step One. The panel also found support for Shirley's prima facie case in the fact that Juror Number 3 and R.O. were sufficiently similar, excluding race, to support an inference of discrimination at Step One.

As to Batson Step two, the panel ruled that the state must both: "(1) assert that specific, race-neutral reasons were the actual reasons for the challenged strikes, and (2) offer some evidence which, if credible, would support the conclusion that those reasons were the actual reasons for the strikes." However, to satisfy Step Two, the state's race-neutral reason need not be "persuasive, or even plausible," to suffice because whether the evidence in support of the reason is credible is to be determined at Batson Step Three.

After noting that voir dire transcripts may be relevant to the Batson Step Two inquiry in three different ways, the panel held that Shirley's case fell into the category where the prosecutor reviews the voir dire transcript but remains unable to remember the reasons for striking the particular veniremembers at issue. In such a situation, the prosecutor may infer reasons from the transcript and assert them, but any such assertions must be supported by circumstantial evidence, such as the prosecutor's jury selection notes or the prosecutor's usual practices or approach to jury selection, that tends to show that the asserted reasons were in fact the actual reasons for the peremptory strike. In Shirley's case, the prosecutor's testimony was sufficient to meet the state's burden of production at Step Two because the prosecutor credibly testified to a jury selection approach that supported his asserted reasons for the challenged peremptory strikes and nothing more was required at Step Two.

As to Batson Step Three, the panel held that the district court clearly erred in denying Shirley's Batson claim regarding R.O. largely on the basis of a comparative juror analysis of Juror Number 3. According to the panel, the ultimate question in Batson cases is "whether the defendant has proven purposeful discrimination."

In Shirley's case, the district court found that the prosecutor's testimony was not probative of the actual reasons for the peremptory strike of R.O. The district court concluded that, in light of the comparative juror analysis between R.O. and Juror Number 3, the purpose of which is to test for consistency, a challenge to R.O. could have been reasonable. Therefore, no Batson violation had occurred because it was plausible that prosecutors would want someone who had a college education. Thus, the district court did not find that the prosecutor actually peremptorily struck R.O. for R.O.'s lack of a college education.

The panel reversed the district court finding clear error in the court's failure to assess whether the prosecutor's proffered circumstantial evidence supported the conclusion that his asserted race-neutral reason was the actual reason for striking R.O. The panel reasoned that where the prosecutor's testimony established that he may have considered "life experience" in deciding whether to strike R.O. and not that he actually based his decision on that ground, provided scant support for the prosecutor's assertion that the lack of "life experience" was the actual reason for striking R.O. Based on the prosecutor's testimony, the panel found that the prosecutor's "vague, general preference - as opposed to a regular practice of striking veniremembers for a specific reason - constituted at most an inclination towards jurors with highly indefinite attributes or qualities." On these grounds, the panel held that, where the prosecutor does not recall the actual reason for peremptorily striking a challenged juror, a vague approach to jury selection provides little or no probative support for a conclusion at Batson Step Three that the peremptory strike was issued for the proffered reason. Therefore, without sufficient circumstantial evidence to support the peremptory strike, Shirley's evidence was sufficient to carry Shirley's burden of showing that the strike of R.O. was motivated in substantial part by race.

To read the full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/11/20/13-16273.pdf

Panel: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt and Morgan Christen, Circuit Judges.

Argument Date: November 20, 2014

Date of Issued Opinion: November 20, 2015; amended March 21, 2016.

Docket Number: 13-55484

Decided: Reversed the District Court's decision and remanded with instructions to grant the writ of habeas corpus, unless the State of California elects to retry Shirley within a reasonable amount of time.

Case Alert Author: Ryan Arakawa

Counsel:
Jennifer M. Sheetz (argued), Mill Valley, CA, for Petitioner-Appellant.

Barton Bowers (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Michael A. Canzoneri, Supervising Deputy Attorney General, Sacramento, CA, for Respondents-Appellees.

Author of Opinion: Judge Reinhardt

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 05/03/2016 03:21 PM     9th Circuit     Comments (0)  

  Case Name: Ledezma-Cosino v. Lynch
Headline: Ninth Circuit panel held 8 U.S.C. Section 1101(f)(1) as an unconstitutional violation of the Equal Protection clause of the Fourteenth Amendment because there is no rational basis to classify people afflicted by chronic alcoholism as innately lacking "good moral character."

Area of Law: Constitutional, Equal Protection Clause; 8 U.S.C. Section 1101(f)(1).

Issue Presented: Whether 8 U.S.C. Section 1101(f)(1) violates due process or equal protection on the ground that chronic alcoholism is a medical condition not rationally related to the presence of absence of good moral character.

Brief Summary: The petitioner, with a medical history of alcohol abuse, was detained by U.S. Immigration and Customs Enforcement (ICE), and denied eligibility for cancellation of removal or voluntary departure because he lacked "good moral character" on the grounds that he was a "habitual drunkard" under 8 U.S.C. section 1101(f)(1). In applying the Equal Protection Clause's rational basis test, the Ninth Circuit panel held it is not rational for the U.S. Government to find that people with chronic alcoholism are morally bad people because of this disease. Thus, the panel held that the statute was unconstitutional.

Significance: The Ninth Circuit panel held 8 U.S.C. Section 1101(f)(1) was an unconstitutional violation of the right to equal protection and broadened the scope for which an individual may be eligible for cancellation of removal or voluntary departure on the basis of "good moral character."

Extended Summary: The petitioner, Salomon Ledezma-Cosino (Petitioner), was a Mexican citizen who illegally entered the United States in 1997. Petitioner supported his family, including eight children, by working in the construction industry. According to Petitioner's medical records, he had a ten-year history of alcohol abuse, where he drank an average of one liter of tequila each day. His alcohol abuse led to at least one DUI. U.S. Immigration and Customs Enforcement (ICE) detained Petitioner in 2008 and pursued his removal from the United States. Petitioner conceded to removability but sought cancellation of removal or voluntary department. Congress limited to eligibility for cancellation of removal or voluntary departure to non-citizens of "good moral character;" any person deemed to lack good moral character may not be considered for discretionary relief.

The immigration judge (IJ) denied relief for several reasons, and the Board of Immigration Appeals affirmed solely on the ground that Petitioner was ineligible because he lacked good moral character as a "habitual drunkard."

First, the panel addressed the Government's claim that Petitioner, as a non-citizen, was unable to raise a due process or equal protection claim because he lacked a protectable liberty interest in discretionary relief. The panel agreed that non-citizens cannot challenge denials of discretionary relief under the due process clause. However, the panel noted that an equal protection claim does not require a liberty interest and the Supreme Court has long held that the constitutional promise of equal protection applies to non-citizens as well as citizens. Therefore, the panel held that Petitioner was barred from raising a due process claim, but could raise an equal protection challenge.

Next, under the Equal Protection Clause, the panel held that a classification between non-citizens who are otherwise similarly situated nevertheless violated equal protection unless it was rationally related to a legitimate government interest. Here, the government interest is in excluding persons of bad moral character. The issue therefore became whether the statute's disparate treatment of individuals with alcoholism was "rationally related to a legitimate state interest" in the denial of discretionary relief to individuals who lacked good moral character. In other words, was it rational for the Government to find that people with chronic alcoholism were morally bad people solely because of their disease? The panel held that: (1) alcoholism was a medical condition; (2) that was undeserving of punishment; and (3) should not be held to be morally offensive.

The Government argued that persons suffering from alcoholism are morally blameworthy because they simply lack the motivation to overcome their disease. The panel rejected the Government's argument observing that medical literature did not support such conclusions and that such a conclusion would characterize some veterans of war, a highly disproportionate number of Native Americans and a substantial portion of America's homeless to be people of bad moral character.

Next, the Government argued that individuals suffering from habitual alcoholism have bad moral character because they "are an increased risk of committing acts of violence or self-harm." The panel analyzed the studies presented in the Government's arguments and found that the studies did not show any link to moral culpability.

Lastly, the Government argued that "habitual drunkards have been the target of laws intending to protect society since the infancy of the legislation, and therefore such history proves the rationality of the legislations." The panel held that classifying alcoholics as evil people, rather than as individuals suffering from a disease, was neither rational nor consistent with our fundamental values. Vacated and Remanded.

To read full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/24/12-73289.pdf

Panel: Stephen Reinhardt, Richard R. Clifton, Circuit Judges, and Miranda M. Du, District Judge.

Argument Date: July 10, 2015

Date of Issued Opinion: March 24, 2016

Docket Number: 12-73289

Decided: Vacated and Remanded

Case Alert Author: Kristina Coronado

Counsel:

Nora E. Milner (argued) Milner & Markee, LLP, San Diego, California for Petitioner.

Lisa M. Damiano (argued), Stuart F. Delery, Benjamin C. Mizer, and Terri J. Scadron, United States Department of Justice, Office of Immigration Litigation, Washington D.C., for Respondent.

Author of Opinion: Stephen Reinhardt, Circuit Judge

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 05/03/2016 03:17 PM     9th Circuit     Comments (0)  

  Stop "Reid," et al. v. F.E.C. -- Fourth Circuit
Fourth Circuit Puts a Stop to Stop Reid

Areas of Law: Election law, Fifth Amendment

Issue Presented: Whether it violates the Fifth Amendment to impose different donation limits on non-connected political committees that have satisfied all criteria, except the waiting period, to become multi-candidate political committees.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court should have dismissed Stop Reid's first two claims for a lack of subject matter jurisdiction (rather than dismissing them on the merits in a motion for summary judgment), because the claims were moot after the plaintiff became a multi-candidate political committee. The court affirmed the district court's dismissal of the Tea Party Leadership Fund's claim that limits placed on multi-candidate political committee donations violated the Equal Protection clause of the Fifth Amendment because political committees that have satisfied all of the criteria except the waiting period were not subject to such limits.

Extended Summary: The Federal Election Campaign Act regulates the donation amount that groups can contribute to political campaigns. A political committee is a group of people that receive or spend at least $1,000 in a calendar year to influence the outcome of an election. A political committee may donate up to $2,600 per candidate, $34,400 to national party committees, and $10,000 combined to state party committees. The primaries and the general elections are considered separate elections for the purposes of calculating donation limits.

If a political committee meets certain criteria, it is eligible to become a multi-candidate political committee (MPC), with different donation limits. In order to be eligible for this classification, the political committee must: 1) have been registered with the Federal Election Committee for at least six months, 2) received donations from more than 50 people, and 3) made donations to at least five candidates for federal office. If these criteria are met, a political committee can become an MPC. The donation limits for a MPC are $5,000 to individual candidates, $15,000 to national party committees, and $5,000 to state party committees.

This case springs from the 2014 elections, during which a group named Stop Economic Instability Caused by Democrats (the opinion alternately refers to plaintiff as "Stop Reid" and "Stop Pac;" this alert will use "Stop Pac" for the sake of consistency), donated $2,600 to three political candidates and wished to donate additional funds totaling $5,000. Stop Pac met all the criteria in order to be classified as a MPC but had not fulfilled the necessary waiting period.

The Tea Party Leadership Fund ("the Fund"), which was already classified as an MPC, donated $5,000 to the Alexandria Republican City Committee ("ARCC"). The Fund wished to donate additional funds to the ARCC, totaling $10,000.

In the district court, the Plaintiffs brought three claims. First, Stop Pac alleged the donation limits set forth in the Federal Election Campaign Act violated the Equal Protection clause of the Fifth Amendment because MPCs are given a higher donation limit than those political committees who have satisfied all criteria except the waiting period. Second, Stop Pac argued the waiting period violated the First Amendment right to free speech and free association. Lastly, the Fund alleged the donation limits placed on MPCs violated the Equal Protection clause of the Fifth Amendment because political committees who have satisfied all criteria to become MPCs except the waiting period are similarly situated and have higher donation limits. The district court granted summary judgment to the Federal Election Committee on all counts.

The Fourth Circuit quickly disposed of the first two claims. Stop Pac became an MPC prior to the district court's ruling. The Fourth Circuit held that "capable of repetition yet evading review" in election law meant that a group might be subject to that same law in the future. The court held that since Stop Pac would not be held to the same donation limits in the future its claims were now moot and the district court had no authority to rule on the merits. The Fourth Circuit reversed and remanded the first two counts with instructions to the district court to dismiss them for lack of subject matter jurisdiction.

The Fourth Circuit further held the District Court had jurisdiction to hear the Fund's claim as the Fund would be subject to the same donation limitations in future. The court, however, ruled there was no discrimination regarding the donation limits. While MPCs have lower donation limits for national and state party committees, they have higher donation limits for individual candidates. The Fourth Circuit affirmed the district court's ruling.

To read the full opinion, click here.

Panel: Chief Judge Traxler, Judges Shedd and Dillon

Argument Date: 12/08/2015

Date of Issued Opinion: 02/23/2016

Docket Number: No. 15-1455

Decided: Affirmed in part; vacated and remanded in part with instructions by published opinion.

Case Alert Author:
Kathleen DeNobile, Univ. of Maryland Carey School of Law

Counsel: Michael T. Morley, COOLIDGE-REAGAN FOUNDATION, Washington, D.C., for Appellants. Kevin Paul Hancock, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellee. ON BRIEF: Dan Backer, DB CAPITOL STRATEGIES, Alexandria, Virginia, for Appellants Stop Reckless Economic Instability Caused by
Democrats, Tea Party Leadership Fund, and Alexandria Republican City Committee; Jerad Najvar, NAJVAR LAW FIRM, Houston, Texas, for Intervenor-Appellant American Future PAC. Lisa J. Stevenson, Deputy General Counsel-Law, Kevin Deeley, Acting Associate General Counsel, Harry J. Summers, Assistant General
Counsel, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellee.

Author of Opinion: Chief Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 05/03/2016 01:06 PM     4th Circuit     Comments (0)  

April 30, 2016
  Association of American Railroads v. U.S. Department of Transportation
Headline: D.C. Circuit circumscribes Amtrak powers, invalidating enabling statute on Due Process and Appointments Clause grounds

Area of Law: Due Process, Appointments Clause

Issues Presented: Whether the Passenger Rail Investment and Improvement Act of 2008 violates the Fifth Amendment Due Process Clause by vesting regulatory authority in a self-interested actor and violates the Appointments Clause by permitting appointment of an arbitrator by the Surface Transportation Board, rather than the President.

Summary: Freight operators challenged the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) as an unconstitutional delegation of regulatory power to a private entity and on due process and Appointments Clause grounds. A 2013 D.C. Circuit case, Association of American Railroads v. U.S. Department of Transportation, 721 F.3d 666, 677 (D.C. Cir. 2013), invalidated the statute as an unconstitutional delegation, and the Supreme Court reversed, 135 S. Ct. 1225 (2015), on the grounds that Amtrak was a governmental, rather than private, entity for purposes of the constitutional claims. On remand, the D.C. Circuit concluded that the PRIIA violates the Fifth Amendment Due Process Clause by authorizing an economically self-interested actor, Amtrak, to regulate its competition and violates the Appointments Clause by delegating regulatory power to an improperly appointed arbiter.

With respect to the due process claim, the court began by observing that Amtrak is a for-profit entity obliged by statute to maximize its revenues, 49 U.S.C. § 24301(a)(2), and at the same time is charged with developing standards for passenger train operations that directly affect freight train operations. Finding scant and somewhat contradictory precedent on point, the court examined the Federalist Papers and concern for abusive governmental power emanating from the Magna Carta to conclude that due process is offended when a statute vests a private entity with authority to regulate the business of its rivals. The court then found that, despite its hybrid private/governmental entity characteristics, Amtrak is statutorily charged with acting in its own economic self-interest and has authority to set metrics and standards that railroads face powerful incentives to obey, which it concluded was the essence of regulatory power. The court found that Amtrak did so without meaningful check and held the government's arguments that other entities working in tandem with Amtrak imposed such checks unpersuasive. Because Congress designed a scheme in which it delegated legislative power to a presumptively self-interested regulator, the court concluded that the scheme violated the Fifth Amendment Due Process Clause.

The court then turned to the Appointments Clause claim. Freight operators challenged the PRIIA scheme for appointment of arbitrators in the event that Amtrak and the Federal Railroad Association (FRA) are unable to agree on the issuance of metrics and standards. The statute provides that either party may petition the Surface Transportation Board (STB) for appointment of an arbitrator but does not specify whether the arbitrator is to be a private or public official. Freight operators argued that, on either basis, the provision was constitutionally infirm; either it vested a private individual with authority to issue binding regulations or conferred regulatory authority on a public official without providing for that official's appointment by the President with advice and consent of the Senate. The D.C. Circuit noted that it had previously held that vesting a private actor with regulatory authority violated the Constitution and that nothing in the Supreme Court's prior decision in the case had upset that conclusion.

Even if the statute were construed to vest authority only in public officials, however, the D.C. Circuit concluded that it violated the Constitution. The court found, first, that arbitrators are "Officers of the United States" because they have the power to issue final regulations that immediately affect the primary conduct of freight railroads. The court then concluded that, because an arbitrator's decision was binding and not subject to review by the STB, the arbitrator lacked supervision by other officers subject to appointment by the President with advice and consent of the Senate. As such, the arbitrator him/herself was a "principal officer" whose appointment could only be made by the President, and the PRIIA provisions violated the Appointments Clause.

To read the full opinion, please visit:
https://www.cadc.uscourts.gov/internet/opinions.nsf/7DB0A5319D2F70D385257FA4004FAB2B/$file/12-5204-1611061.pdf

Panel: Circuit Judge Brown and Senior Circuit Judges Williams and Sentelle

Argument Date: 11/10/2015

Date of Issued Opinion: 4/29/2016

Docket Number: No. 12-5204

Decided: Reversed

Case Alert Author: Elizabeth Earle Beske

Counsel: Thomas H. Dupree Jr., Amir C. Tayrani, Lucas C. Townsend, and Louis P. Warchot for Appellants. Michael S. Raab, Benjamin C. Mizer, Vincent H. Cohen, Jr., Mark B. Stern, Daniel Tenny, Patrick G. Nemeroff, Paul M. Geier, Peter J. Plocki, and Joy Park for Appellees

Author of Opinion: Judge Brown

Circuit: D.C. Circuit

Case Alert Circuit Supervisor: Elizabeth Earle Beske; Ripple Weistling

    Posted By: Ripple Weistling @ 04/30/2016 09:20 AM     DC Circuit     Comments (0)  

April 29, 2016
  United States v. Halloran - Second Circuit
Headline: Second Circuit Affirms Former City Council Member's Bribery Conviction and Jail Sentence

Area of Law
: Criminal Law; Fraud

Issue(s) Presented:
Whether there was sufficient evidence to find that a former member of the New York City Council acted with the requisite intent in accepting bribes.

Brief Summary: Daniel J. Halloran, a former member of the New York City Council, was found guilty by a jury of participating in two bribery schemes. In the first scheme, he was found to have accepted bribes in exchange for promising to funnel city funds to the bribe payers. In the second, Halloran was found to have paid to help his co-defendant, Malcolm A. Smith, bribe Republican Party officials to obtain what is known in New York as a Wilson-Pakula certificate or authorization, which would have enabled Smith, a Democrat, to compete for the nomination of the Republican Party in the New York mayoral election. The United States District Court for the Southern District of New York entered a conviction judgment on two counts of wire fraud, two counts of violating the Travel Act, and one count of conspiracy to commit both substantive offenses. Halloran was sentenced to 120 months' imprisonment. The Court of Appeals affirmed the judgment.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...93787/1/hilite/


Extended Summary: Daniel J. Halloran was a Republican member of the New York City Council representing the 19th District in Queens. The charges against him resulted from an investigation by an undercover FBI agent, who went by the name Raj, and a one-time aspiring real estate developer with ties to the Orthodox Jewish community, who was working with the FBI pursuant to a cooperation agreement. Under the first scheme, they bribed Halloran to divert $40,000 to $80,000 in member items (discretionary funding that is available to City Council members for distribution to nonprofit organizations in their districts) to a fictitious entity purportedly controlled by Raj.

The second scheme dealt with the New York mayoral election. Under New York's Wilson-Pakula law, a candidate seeking the nomination of a party of which he is not a member must obtain the consent of the appropriate party committee - an authorization known in the New York political world as a "Wilson-Pakula" - before filing a designating petition allowing him to compete in the primary election. Malcolm Smith, a Democratic state senator, was weighing a run for mayor of New York. Because the field of Democratic mayoral candidates was crowded, he was contemplating running as a Republican. Halloran was paid to help Smith bribe Republican Party officials to obtain the Wilson-Pakula authorization.

Halloran challenged the sufficiency of the evidence supporting his convictions for the first scheme arguing that there was insufficient evidence to support a finding that he acted with the requisite intent. The Court of Appeals found, however, that Halloran had not identified any evidence that conclusively rebutted the most natural inference to be drawn from his dealings with the FBI agent: that he intended to arrange for them to obtain discretionary funding. Rather, the court found the evidence adequately supported that inference and the jury was entitled to disbelieve evidence to the contrary.

Halloran also challenged his conviction of violating the Travel Act by participating in the Wilson Pakula Scheme. A Travel Act conviction based on bribery requires an underlying violation of a federal or state bribery statute. The Second Circuit rejected this second challenge because, it said, Halloran's actions violated the New York State bribery statute. Finally, the Second Circuit rejected challenges to the Travel Act conviction raised by Halloran based upon constitutional vagueness and First Amendment grounds and, thus, affirmed the judgment of the district court.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...93787/1/hilite/


Panel (if known): Circuit Judges Calabresi, Lynch and Lohier

Argument Date: 1/26/2016

Date of Issued Opinion:
4/28/2016

Docket Number:
No. 15-996-cr

Decided: Affirmed

Case Alert Author: Nigyar Alieva

Counsel: Jonathan I. Edelstein, Edelstein & Grossman, for Defendant Appellant; Daniel J. Halloran, pro se; Jessica Feinstein (Karl Metzner, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, for Appellee.

Author of Opinion: Judge Lynch

Circuit:
2nd Circuit

Case Alert Circuit Supervisor: Professor Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 04/29/2016 07:24 AM     2nd Circuit     Comments (0)  

April 27, 2016
  United States v. Robinson -- Fourth Circuit
Frisk No More: Person Carrying Weapon in 'Shall Issue' State Not Automatically Dangerous

Areas of Law: Criminal Procedure

Issue Presented: Whether a police officer had reasonable suspicion to believe a person carrying a concealed weapon in a 'shall issue' state was presently dangerous.

Brief Summary: The Ranson, West Virginia police department received an anonymous tip that a black man loaded a gun and then concealed it. The anonymous caller identified the car that the man got into. The officers later stopped the car and asked the suspect, Robinson, to exit the vehicle. An officer then frisked Robinson and discovered a gun in his pants pocket. The United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") held that although Robinson was armed, he was not dangerous simply because he was reported as carrying a concealed firearm. Carrying a concealed weapon is not itself illegal in West Virginia and the facts surrounding the stop and frisk did not provide the officers with an objective basis to infer danger. Therefore, the Fourth Circuit held the officer who frisked Robinson lacked reasonable suspicion to believe that Robinson was armed and dangerous.

Extended Summary: As explained in Terry v. Ohio, 392 U.S. 1 (1968), police officers "may conduct a limited pat-down for weapons when there is reasonable suspicion that a suspect is both armed and dangerous." Whether Robinson was armed was not an issue in this case. The Fourth Circuit based its holding on the second prong of the Terry analysis, whether Robinson was dangerous.

The moment officers approached Robinson in his vehicle they asked him to step out. Robinson complied. The officers then asked Robinson if he had any weapons and "Robinson gave [them] a 'weird look.'" The officers then proceeded to frisk him and discovered a firearm in Robinson's pants pocket. Robinson was cooperative throughout the entire encounter. Only after frisking him did one of the officers recognized "Robinson from prior criminal proceedings and confirmed that Robinson was a convicted felon." A grand jury indicted Robinson on one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Robinson moved to suppress the evidence challenging the unconstitutionality of the frisk. A magistrate judge assigned to the motion concluded that the frisk "was not supported by a 'reasonable belief that [Robinson] [was] armed and presently dangerous.'" The district court rejected the magistrate's holding and found that "a reasonable suspicion that Robinson was armed in a high-crime area, when combined with Robinson's failure to answer when asked by an officer if he was armed" gave the officer reasonable suspicion to believe Robinson was dangerous.

The Fourth Circuit reviewed the district court's factual findings for clear error and its legal conclusions de novo. According to the Fourth Circuit, "a valid [Terry] stop does not automatically entitle an officer to conduct a 'frisk.'" Instead, an officer "may frisk a person who has been legally stopped only if the officer has a reasonable and articulable suspicion that the person is 'armed and presently dangerous.'" In analyzing the justification for a frisk, the court must consider the totality of the circumstances "to determine if the officer had a 'particularized and objective basis' for believing that the detained suspect might be armed and dangerous."

The Fourth Circuit then analyzed whether Robinson was presently dangerous. First, the court noted that if "carrying a concealed firearm were prohibited by local law, then a suspect concealing a gun" would be considered presently dangerous. However, that is not the case in West Virginia. In 'shall issue' jurisdictions, such as West Virginia, where "it is legal to carry a gun in public ... and it is legal to carry a concealed firearm with a permit," the Fourth Circuit held that there is no reasonable suspicion to believe "that a person carrying or concealing a weapon during a traffic stop is anything but a law-abiding citizen who poses no danger to the authorities." The court noted that the United States Court of Appeals for the Sixth, Third, and Seventh Circuits have reached similar conclusions when open and concealed carry of a weapon is permitted by law. This, according to the court, is what the Supreme Court found "unacceptable in Gant." The court noted "it is no more acceptable here." The court also noted that a "frisk must be justified on the basis of 'what the officers knew before they conducted their search.'" See Florida v. J.L., 529 U.S. 266, 271 (2000).

The officer in this case did not discover that Robinson was a convicted felon until after the frisk took place. The court noted that officer safety is a "serious concern" under Terry, however West Virginia does not have a "'duty to inform' [law], which [requires] individuals carrying concealed weapons to disclose that fact to the police if they are stopped." In such cases, a "generalized risk to officer safety" is not enough to justify a frisk.

Next, the court analyzed whether Robinson's non-answer when asked if he was armed was a significant factor permitting the officers to infer that Robinson was dangerous. The court held that it did not.

In dictum, the Fourth Circuit noted that allowing officers to frisk a person carrying a gun in a 'shall issue' state would "'give police officers unbridled discretion...' implicating concerns about abuse" of police power. Further, the court noted that this could give "rise to 'the potential for intentional or unintentional discrimination based on neighborhood, class, race, or ethnicity.'" Lastly, the court noted that in a 'shall issue' state, a high crime area is exactly the place a law abiding citizen may feel the need to carry a weapon the most.

In dissent, Judge Niemeyer wrote that the majority's opinion contained "flaws of law and logic." Citing Pennsylvania v. Mimms, he noted that the Supreme Court has held "that a reasonable officer need have only a suspicion that the individual who has been lawfully stopped is armed and thus dangerous." According to Judge Niemeyer, "the dangerousness justifying the frisk arises from the combination of the police forcing an encounter with a person and that person's possession of a gun, whether the possession of a gun was legal or not." Lastly, Judge Niemeyer explained that the majority "has forgotten Terry's fundamental principle that the Fourth Amendment does not 'require...police officers [to] take unnecessary risks in the performance of their duties.'"

To read the full opinion, click here.

Panel: Judges Niemeyer, Harris, and Davis.

Argument Date: 10/29/2015

Date of Issued Opinion: 02/23/2016

Docket Number: No. 14-4902

Decided: Reversed and vacated by published opinion

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Jarod James Douglas, OFFICE OF THE UNITES STATES ATTORNEY, Wheeling, West Virginia, for Appelle. On Brief: Kristen M. Leddy, Research and Writing Specialist, Office of the Federal Public Defender, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/27/2016 03:04 PM     4th Circuit     Comments (0)  

  Kolbe et al. v. Hogan et al. -- Fourth Circuit
Fourth Circuit Creates Circuit Split on Gun Control Issue--Next Stop the Supreme Court?

Areas of Law: Constitutional Law, Second Amendment

Issue Presented: Whether the assault rifles and high capacity magazines banned under the Firearm Safety Act were protected under the Second Amendment and whether Maryland's Firearm Safety Act is constitutional under the Second Amendment.

Brief Summary: Plaintiffs challenged the district court's finding that the Firearm Safety Act (FSA) is constitutional. The United States Court of Appeals for the Fourth Circuit found that the district court incorrectly used intermediate rather than strict scrutiny to evaluate the FSA. The Fourth Circuit, however, upheld the lower court's finding that there was no equal protection challenge to the FSA and that the FSA was not void for vagueness.

Extended Summary: Maryland passed the Firearm Safety Act (FSA), which bans approximately sixty types of assault rifles, their "copies," and high capacity magazines. The FSA carved out an exception for retired law enforcement personnel, who retained their service weapons upon retirement. Plaintiffs challenged the constitutionality of the FSA, claiming that the statute violated their Second Amendment right to bear arms. Plaintiffs also alleged that the statute was void for vagueness for failing to define what constituted a "copy," and raised an equal protection claim because of the difference in treatment between the average citizen and retired law enforcement personnel.

The district court upheld the FSA's ban on assault rifles as constitutional using intermediate scrutiny. The district court also denied the plaintiffs' claim that the term "copies" was void for vagueness. Finally, the court found that the average citizen and a retired law enforcement officer were differently situated and thus could be afforded different treatment without violating the Constitution.

The Fourth Circuit reviewed the issues de novo. The court first looked at whether assault rifles and high capacity magazines were subject to the protections of the Second Amendment. In order for Second Amendment protections to apply, the firearm in question must be 1) in common use, 2) commonly possessed by law abiding citizens for lawful use and 3) not dangerous and unusual. The court held that assault rifles and large capacity magazines are in common use by law abiding citizens for lawful purposes such as home defense, hunting, and target practice. It also held that the terms "dangerous and unusual" must be read together because all firearms are dangerous. Thus, for a firearm to be excluded from Second Amendment protection a firearm must be both dangerous and unusual. In this context, "unusual" meant "rare." The court held that assault rifles and high capacity magazines are not "dangerous and unusual." They are therefore subject to Second Amendment protection. Because assault rifles and high capacity magazines are subject to Second Amendment protections, the Fourth Circuit held that the FSA should have been reviewed using strict scrutiny rather than intermediate scrutiny and remanded for the district court to apply the correct standard. This decision creates a circuit split between the Fourth Circuit and the Second and District of Columbia Circuits.

The court affirmed the district court on the Equal Protection challenge. The court held that retired law enforcement officers are sufficiently different (and thus could be treated differently) from ordinary citizens so as to warrant different treatment in three ways: that law enforcement have a unique combination of training and experience that an ordinary citizen does not have, that law enforcement has a "special degree of trust" and will likely act to protect citizens, and that law enforcement faces increased threats as a result of their employment that the average citizen does not.

The court also affirmed the district court's holding that the statute was not void for vagueness. The court held that the term "copies" was easily understood by the average citizen as a weapon which was a replica of another.

Judge King dissented from Part III of the opinion, regarding the level of scrutiny that the statute warranted. Judge King disagreed with the majority's reading of "dangerous and unusual." Judge King believed assault rifles to be military-like and unusually dangerous. In Judge King's view, such weapons therefore do not qualify for Second Amendment protection. Judge King would have affirmed the District Court's use of intermediate scrutiny.

Chief Judge Traxler dissented from Part IV of the opinion. Chief Judge Traxler wrote that retired law enforcement officers are no differently situated from the ordinary citizenry and would have remanded the equal protection challenge for further review.

To read the full opinion click here.

Panel: Chief Judge Traxler and Judges King and Agee

Argument Date: 04/25/15

Date of Issued Opinion: 02/04/16

Docket Number: Case Nos. 14-1945

Decided: Affirmed in part, vacated in part, and remanded by published opinion

Case Alert Author: Kathleen DeNobile, Univ. of Maryland Carey School of Law

Counsel: ARGUED: John Parker Sweeney, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants. Matthew John Fader, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: T. Sky Woodward, James W. Porter, III, Marc A. Nardone, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants. Douglas F. Gansler, Attorney General of Maryland, Jennifer L. Katz, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan; Jason Van Dyke, THE VAN DYKE LAW FIRM, PLLC, Plano, Texas, for Amicus Traditionalist Youth Network, LLC. Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie Marie Blake, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Luther Strange, Attorney General of Alabama, Montgomery, Alabama, for Amicus State of Alabama; Michael C. Geraghty, Attorney General of Alaska, Juneau, Alaska, for Amicus State of Alaska; Thomas C. Horne, Attorney General of Arizona, Phoenix, Arizona, for Amicus State of Arizona; Pam Bondi, Attorney General of Florida, Tallahassee, Florida, for Amicus State of Florida; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; James D. Caldwell, Attorney General of Louisiana, Baton Rouge, Louisiana, for Amicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing, Michigan, for Amicus State of Michigan; Chris Koster, Attorney General of Missouri, Jefferson City, Missouri, for Amicus State of Missouri; Timothy C. Fox, Attorney General of Montana, Helena, Montana, for Amicus State of Montana; Jon Bruning, Attorney General of Nebraska, Lincoln, Nebraska, for Amicus State of Nebraska; Gary King, Attorney General of New Mexico, Santa Fe, New Mexico, for Amicus State of New Mexico; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota; E. Scott Pruitt Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Amicus State of Oklahoma; Alan Wilson, Attorney General of South Carolina, Columbia, South Carolina, for Amicus State of South Carolina; Martin J. Jackley, Attorney 4 General of South Dakota, Pierre, South Dakota, for Amicus State of South Dakota; Greg Abbott, Attorney General of Texas, Austin, Texas, for Amicus State of Texas; Sean Reyes, Attorney General of Utah, Salt Lake City, Utah, for Amicus State of Utah; Peter K. Michael, Attorney General of Wyoming, Cheyenne, Wyoming, for Amicus State of Wyoming; Jack Conway, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus Commonwealth of Kentucky. Charles J. Cooper, David H. Thompson, Peter A. Patterson, COOPER & KIRK, PLLC, Washington, D.C., for Amicus National Rifle Association of America, Inc. C.D. Michel, Clinton B. Monfort, Anna M. Barvir, MICHEL & ASSOCIATES, P.C., Long Beach, California, for Amici CRPA Foundation, Gun Owners of California, Colorado State Shooting Association, Idaho State Rifle & Pistol Association, Illinois State Rifle Association, Kansas State Rifle Association, League of Kentucky Sportsmen, Inc., Nevada Firearms Coalition, Association of New Jersey Rifle & Pistol Clubs, New Mexico Shooting Sports Association, New York State Rifle & Pistol Association, Texas State Rifle Association, Vermont Federation of Sportsmen's Clubs, and Vermont Rifle & Pistol Association. Michael Connelly, U.S. JUSTICE FOUNDATION, Ramona, California, for Amicus U.S. Justice Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson, John S. Miles, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Conservative Legal Defense and Education Fund, and Institute on the Constitution. Brian S. Koukoutchos, Mandeville, Louisiana; James B. Astrachan, ASTRACHAN GUNST THOMAS, P.C., Baltimore, Maryland, for Amici Congress of Racial Equality, National Center for Public Policy Research, Project 21, Pink Pistols, Women Against Gun Control, and The Disabled Sportsmen of North America. Dan M. Peterson, DAN M. PETERSON, PLLC, Fairfax, Virginia, for Amici The Law Enforcement Legal Defense Fund, Law Enforcement Action Network, Law Enforcement Alliance of America, International Law Enforcement Educators and Trainers Association, and Western States Sheriffs' Association. Jonathan K. Baum, Chicago, Illinois, Mark T. Ciani, KATTEN MUCHIN ROSENMAN LLP, New York, New York, for Amici Law Center to Prevent Gun Violence and Marylanders to Prevent Gun Violence, Inc. Jonathan E. Lowy, Kelly Sampson, BRADY CENTER TO PREVENT GUN VIOLENCE, Washington, D.C.; Elliott Schulder, Suzan F. Charlton, Amit R. Vora, Catlin Meade, Stephen Kiehl, COVINGTON & BURLING LLP, Washington, D.C., for Amicus Brady Center To Prevent Gun Violence. Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Claude S. Platton, Assistant Solicitor General, Eric T. Schneiderman, Attorney 5 General of the State of New York, for Amicus State of New York; Kamala D. Harris, Attorney General of California, Sacramento, California, for Amicus State of California; George Jepsen, Attorney General of Connecticut, Hartford, Connecticut, for Amicus State of Connecticut; Russell A. Suzuki, Attorney General of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois, for Amicus State of Illinois; Thomas J. Miller, Attorney General of Iowa, Des Moines, Iowa, for Amicus State of Iowa; Martha Coakley, Attorney General of Massachusetts, Boston, Massachusetts, for Amicus Commonwealth of Massachusetts; Ellen F. Rosenblum, Attorney General of Oregon, Salem, Oregon, for Amicus State of Oregon; Karl A. Racine, Attorney General of The District of Columbia, Washington, D.C., for Amicus The District of Columbia.

Author of Opinion:
Chief Judge Traxler on Parts I, II, III, V, and VI. Judge Agee on Part III

Dissenting Opinion: Judge King on Part III, and Chief Judge Traxler on Part IV

Case Alert Supervisor: Professor Renée Hutchins

Edited: 05/03/2016 at 12:28 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 04/27/2016 02:51 PM     4th Circuit     Comments (0)  

  Legg et al. v. Ulster County et al.
Headline: Second Circuit, Applying New Supreme Court Precedent, Reinstates Pregnancy Discrimination Claim Against Ulster County

Area of Law: Labor and Employment

Issue Presented: Whether an employer's policy allowing "light duty" assignments only for employees injured on the job can qualify as pregnancy discrimination under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978

Brief Summary: Ann Marie Legg, a corrections officer at the Ulster County Jail, became pregnant. Her doctor deemed her pregnancy high-risk and recommended that she be in a "light duty" position that avoided direct contact with inmates. However, her supervisor refused to officially place her in a light-duty position, based on a workplace policy of only providing light-duty assignments for work-related injuries or illnesses. Ultimately, after a major health care due to a physical brush with an inmate, Legg was forced to take time off until after she gave birth. Legg then sued the County and several officials in the Northern District of New York, alleging that the denial of her request for an accommodation amounted to pregnancy discrimination in violation of Title VII. The district court ultimately rejected her claim, concluding that the policy of only providing light-duty work to employees injured on the job did not amount to pregnancy discrimination because it "applied across the board to everyone." Legg appealed, and before her case was decided, the Supreme Court of the United States decided Young v. United Parcel Service, Inc., in which it held that a facially neutral policy can indeed amount to pregnancy discrimination in certain circumstances. The Second Circuit applied this new precedent to Legg's case, and concluded that she had adduced enough evidence to satisfy this standard and have her claims heard by a jury. Accordingly, it vacated the dismissal of her case and remanded it for trial.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...b369a494985/2/hilite/

Extended Summary: Under Title VII of the Civil Rights Act of 1964, employment discrimination based on a person's sex is prohibited. The Pregnancy Discrimination Act of 1978 amended Title VII to make clear that sex discrimination includes pregnancy discrimination, and that "women affected by pregnancy, childbirth, or related medical conditions are to be treated the same as others not affected, but similar in their abilities to work." In 2015, the Supreme Court decided Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), which held that an employer's facially neutral accommodation policy can give rise to an inference of pregnancy discrimination if it imposes a significant burden on pregnant employees that is not justified by the employer's non-discriminatory explanation.

In Young, which had facts similar to Legg's case, UPS refused to accommodate a pregnant mail carrier's request for a "light-duty" position. There, the employee was responsible for moving packages weighing up to seventy pounds, but her doctor had recommended she lift nothing heavier than twenty pounds during her pregnancy. UPS refused to accommodate her, however, explaining that it only offered "light-duty" accommodations to employees who had been injured on the job, lost certification, or suffered from a disability. The Supreme Court ultimately rejected UPS's argument that this sort of facially neutral accommodations policy could never amount to pregnancy discrimination. Instead, the Supreme Court explained that such facially neutral policies can qualify as pregnancy discrimination if they impose a significant burden on pregnant employees that is not justified by the employer's non-discriminatory explanation.

The Supreme Court further articulated the framework that courts should use in analyzing these sorts of cases. First, the plaintiff must show that she was pregnant and sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others who were similar in their inability to work. Once the plaintiff makes this showing, the employer must articulate a legitimate, nondiscriminatory reason for its action--such as a facially neutral accommodations policy. At that point, the employee must show that the real reason for the policy is discrimination. The Court added that a pregnant employee can make this showing by presenting "sufficient evidence that the employer's policies impose a significant burden on pregnant employers, and that the employer's legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden." One way to prove that the policy imposes a significant burden on pregnant employees is to show that it accommodates a larger percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.

The Second Circuit applied this new framework to Legg's case, and concluded that under Young, she had enough evidence to go to a jury, and that judgment as a matter of law was inappropriate. First, Legg had proved that she sought a light duty accommodation while she was pregnant, and the County did not accommodate her, even though the county did provide light duty accommodations to other employees with a similar ability or inability to work. Next, the county had articulated a legitimate, non-discriminatory justification for its policy-- that under New York State law, municipalities are required to pay corrections officers injured on the job, but not other employees who are unable to work for other reasons. Thus, the burden shifted back to Legg to show pretext. Here, the Second Circuit concluded that a reasonable jury could find that Legg provided enough evidence to prove this justification was a pretext. The court noted that there were inconsistencies in the various officers' explanations of the accommodations policy, and had barely mentioned the above justification at trial. Moreover, the evidence clearly indicated that the policy accommodated a larger percentage of nonpregnant workers than pregnant workers, given that no pregnant employees were eligible for accommodation under the policy. The court noted that a jury would not have to rule for Legg on remand, but that she was certainly entitled to have these issues decided by a jury.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...b369a494985/2/hilite/

Panel: Circuit Judges Parker, Lynch, and Carney

Argument Date: 10/8/2016

Date of Issued Opinion: 4/26/2016

Docket Numbers: 14-3636 (L), 14-3638 (XAP), 14-4635 (CON)

Decided: Vacated and remanded.

Case Alert Author: Ryan Koleda

Counsel: Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, New York; Brendan Klaproth, Klaproth Law PLLC, Washington, D.C.; and Joseph Ranni, Ranni Law Offices, Florida, New York, for Plaintiff-Appellant and Plaintiff-Cross Appellee.
Matthew J. Kelly (Amanda Davis Twinam, on the brief), Roemer Wallens Gold & Mineaux LLP, Albany, New York, for Defendants-Appellees-Cross-Appellants.

Author of Opinion: Judge Parker

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 04/27/2016 02:06 PM     2nd Circuit     Comments (0)  

April 25, 2016
  National Football League Management Council et al. v. National Football League Players Association et al.
Headline: Second Circuit Reverses District Court and Upholds Arbitration Award Suspending Patriots Quarterback Tom Brady for Four Games as Within the Broad Arbitration Powers of the NFL Commissioner's Office Under the NFL Collective Bargaining Agreement

Area of Law: Labor/Collective Bargaining/Arbitration

Issue(s) Presented: Whether NFL Commissioner Roger Goodell's decision to suspend Tom Brady for four games was a proper exercise of the Commissioner's broad discretion under the collective bargaining agreement.

Brief Summary: Following the 2015 American Football Conference ("AFC") Championship playoff game between the New England Patriots and the Indianapolis Colts, it was alleged that the Patriot's quarterback, Tom Brady, was involved in a scheme, coined "Deflategate" in the media, to deflate footballs below the permissible range (ostensibly making them easier to throw and catch). After an investigation, the National Football League ("NFL") suspended Brady for four games. Brady then requested arbitration under the parties' collective bargaining agreement and NFL Commissioner, Roger Goodell, served as the arbitrator. Goodell entered an award confirming the discipline and the parties sought judicial review. The United States District Court for the Southern District of New York vacated the award, holding that Brady had insufficient notice that his conduct could result in a suspension and that the proceedings deprived Brady of fundamental fairness.

On appeal, the Second Circuit majority reversed the lower court's decision, holding that the Commissioner properly exercised his broad discretion under the parties' collective bargaining agreement. The court found that the arbitration proceedings and decision met the minimum legal standards established by the Labor Management Relations Act and remanded with instructions to confirm the arbitration award.

To read the full opinion, visit:
">http://www.ca2.uscourt.../de.....5/1/hilite/


Extended Summary: Following the January 18, 2015 AFC Championship Game between the Patriots and the Colts, during which officials found several of the Patriots game balls were inflated less than the permissible range, the NFL retained Theodore V. Wells, Jr. Esq. and the law firm of Paul, Weiss, Rifkin, Wharton & Garrison to conduct an investigation into possible impermissible ball tampering. A 139-page report (the "Wells Report), issued the following May, concluded that it was "more probable than not" that two members of the Patriot's equipment staff, Jim McNally and John Jastremski, had deliberately released air from Patriot game balls shortly after they were examined by game officials. On Patriots quarterback Tom Brady's role, the Wells Report concluded - based largely on text exchanges between the McNally and Jastremski referencing Brady and the fact that Brady and Jastremski spoke on the telephone for the first time in six months and met in the locker room on the day the investigation was announced - that it was "'more probable than not' that Brady was 'at least generally aware'" of McNally and Jastremski's actions" and found it unlikely the two men would have deflated the balls without Brady's "'knowledge, approval, awareness, and consent.'" The Wells Report also noted that Brady's failure to make electronic information (such as texts and emails) and documents available impaired their investigation.

Thereafter, on May 11, 2015, Brady was notified that Commissioner Goodell had authorized a four-game suspension under Article 46 of the collective bargaining agreement between the NFL and Player's Association (the "CBA") based upon the Wells Report. Article 46 authorizes the NFL commissioner to, "take disciplinary action against a player whom he 'reasonably judge[s]' to have engaged in 'conduct detrimental to the integrity of, or public confidence in, the game of professional football.'" Brady appealed his suspension and requested arbitration and Commissioner Goodell exercised his discretion under the CBA to serve as the arbitrator. The Players' Association, acting on behalf of Brady, filed multiple motions including seeking Goodell's recusal, requesting production of Paul, Weiss's internal investigation notes, and moving to compel NFL General Counsel to testify about his involvement in the Wells Report. Goodell denied the motions. Also about this time, it was revealed for the first time that Brady had instructed his assistant to destroy the cellphone he had used since early November 2014 on the same day Brady was to be interviewed by the Wells investigative team.

Following the arbitration hearing, Goodell issued a final ruling upholding the four-game suspension. In his ruling, Goodell drew an adverse inference that Brady's cellphone would have contained evidence inculpating Brady in the scheme, citing Brady's "deliberate effort" to prevent the investigators' access to information he had been asked to produce. The decision also likened Brady's conduct to that of a steroid user seeking a game advantage and concluded that a four-game suspension - the same penalty typically imposed for first-time steroid use - was, thus, an appropriate penalty.

Both parties then initiated actions in federal court; the NFL to confirm the arbitration award under the Labor Management Relations Act, and the Players' Association to vacate the award. The United States District Court for the Southern District of New York granted the Player's Association motion vacating the award. The district court based its decision on two grounds: (1) that Brady lacked adequate notice that deflation of footballs could lead to a four-game suspension because the applicable CBA provisions indicated fines would be imposed for misconduct; and (2) that Goodell deprived Brady of fundamental fairness by denying the motions to compel the NFL General Counsel to testify about his role in the investigation and to compel production of the investigative notes used to prepare the Wells Report.

The Second Circuit majority reversed the judgment of the district court and remanded with instructions that the arbitration award be confirmed. Describing the role of federal courts in reviewing arbitration awards as "narrowly circumscribed and highly deferential," the Second Circuit majority emphasized that it is not its role to determine if Brady participated in a scheme to deflate footballs or if he received the appropriate discipline. Rather, it is "simply [to] ensure that the arbitrator was 'even arguably construing or applying the contract and acting within the scope of his authority' and did not 'ignore the plain language'" of the CBA.

The Second Circuit majority rejected the district court's finding that Brady lacked notice that his conduct could result in a suspension, finding Article 46 gave Goodell broad authority to discipline Brady for conduct he believes "might undermine the integrity of the game" and that, at the very least, Goodell's interpretations of the governing provisions could easily withstand the standard on review that they be at least "barely colorable." The majority found Goodell was also within his discretion in drawing an analogy between Brady's conduct and steroid use. The majority further rejected the district court's finding that Brady was disciplined without notice for "general awareness of misconduct on the part of others," finding, instead, that the award made clear Brady was disciplined because he "participated" in the ball-tampering scheme and "obstructed the investigation" when he arranged for the destruction of his cellphone. Finally, the majority also found Goodell acted within his discretion in refusing to compel the NFL general counsel's testimony or production of the investigators' internal notes, because arbitrators do not need to follow strict evidentiary rules and the CBA mandated only that exhibits the parties will rely upon be exchanged.

In a dissenting opinion, Chief Judge Katzmann argued the district court's decision should be affirmed because Goodell changed the factual basis for the discipline by drawing an inverse inference from Brady arranging for destruction of his cellphone and, by setting out an unprecedented punishment, the Goodell acted beyond his authority and asserted his own 'brand' of justice, rather than that explicitly outlined in the CBA.

To read the full opinion please visit:
http://www.ca2.uscourts.gov/de...efe9a0c1da15/1/hilite/

Panel: Katzmann, Parker and Chin

Argument Date: 3/3/2016

Date of Issued Opinion: 4/25/2016

Docket Numbers: 15-2801 (L), 15-2805 (CON)

Decided: Reversed and remanded with instructions to confirm the arbitration award

Case Alert Author:
Gavin Michael Strube

Counsel: Paul D. Clement (Erin E. Murphy, Michael H. McGinley, on the brief), Bancroft PLLC, Washington, D.C.; Daniel L. Nash, Pratik A. Shah, Stacey R. Eisenstein, Gregory W. Knopp & James E. Tysse, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., on the brief, for Plaintiff‐Counter‐Defendant‐Appellant and Defendant‐Appellant.
Jeffrey L. Kessler (David L. Greenspan, on the brief), Winston & Strawn LLP, New York, NY; Steffen N. Johnson, Winston & Strawn LLP, Washington, D.C., on the brief; Andrew S. Tulumello, Gibson, Dunn & Crutcher, Washington, D.C., on the brief, for Defendant‐Counter‐Claimant‐Appellee and Counter‐Claimant‐Appellee.

Author of Opinion: Parker (for majority); Katzmann (for dissent)

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 04/25/2016 07:23 PM     2nd Circuit     Comments (0)  

  Schoenefeld v. Schneiderman
Headline: Second Circuit Upholds New York's Requirement That Nonresident Members of the Bar Maintain a Physical Office Within New York State

Area of Law: Constitutional

Issue Presented: Whether a New York law requiring nonresident members of the bar to maintain a New York State office for the "transaction of law business" violates the Privileges and Immunities Clause of the U.S. Constitution.

Brief Summary: Plaintiff-appellee Ekaterina Schoenefeld--a New Jersey resident who is licensed to practice law in New York but lacks a home or physical office in the state--argued that a New York state law requiring nonresident attorneys to maintain a physical office within the state violated the United States Constitution's Privileges and Immunities Clause. She pointed out that attorneys who are residents of New York can satisfy this requirement merely by practicing from their homes, while nonresidents are forced to incur the costs of a New York office. She prevailed in the Northern District of New York, but on appeal, the Second Circuit reversed. The court explained that the requirement did not violate the Privileges and Immunities Clause because it had not been enacted for the protectionist purpose of burdening out-of-state citizens, but instead for the nonprotectionist purpose of ensuring that all licensed New York attorneys had a physical presence in the state to receive process.

To read the full opinion, please visit http://www.ca2.uscourts.gov/de...c8428f-196f-4fb9-8ac2- a3fbe6bf14ce/1/ doc/11-4283_complete_opn.pdf#xml= http://www.ca2.uscourts.gov/de...3fbe6bf14ce/1/hilite/.

Extended Summary: The plaintiff-appellee, Ekaterina Schoenefeld, is a resident of New Jersey and is licensed to practice law in New Jersey, New York, and California. She maintains an office in New Jersey, but not in New York. Schoenefeld has declined requests to represent clients before New York state courts specifically to avoid violating New York Judiciary Law § 470. This statute provides that nonresident members of the New York bar are required to maintain a physical "office for the transaction of law business" within the state. Schoenefeld argued that the office requirement imposed by § 470 on nonresident members of the New York bar violates the Privileges and Immunities Clause of the United States Constitution, which states that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states," and is intended to place citizens of each state upon equal footing. Here, Schoenefeld argued, the New York requirement burdens nonresidents' right to practice law in New York, because resident attorneys of the state are not required to have offices distinct from their homes, but nonresident attorneys are.

Schoenefeld prevailed in the Northern District of New York, which declared § 470 unconstitutional. On appeal, New York State Attorney General Eric Schneiderman, on behalf of the defendants, initially argued that there was no Privileges and Immunities Clause concern because § 470's office requirement could be interpreted to only require an address in the state for accepting personal service. The Second Circuit certified the question of how to interpret the statute to the New York Court of Appeals, which held that a physical office was required, and that a mere mailing address was insufficient.

Given that conclusion, the Second Circuit proceeded to analyze whether the physical office requirement was, in fact, unconstitutional. The court explained that under the Supreme Court's most recent decision interpreting the Privileges and Immunities Clause, the key question is whether a challenged state law was enacted for the protectionist purpose of burdening out-of-state citizens. The Second Circuit concluded that § 470 was not enacted for the protectionist purpose of favoring New York residents in their ability to practice law, or, conversely, of burdening nonresident attorneys practicing in the state. Rather, the court explained, § 470 was initially enacted to avoid service of process concerns, by ensuring that all licensed attorneys in the state had a physical presence on which process could be served. The court acknowledged that the "requirement is now largely vestigial as a means for ensuring process," given further developments in New York procedure, but explained that "the fact remains that the law was enacted for [a] nonprotectionist purpose, and Schoenefeld has adduced no evidence of a protectionist intent to afford some economic advantage to resident New York lawyers."

The court added that the law was being applied equally to New Yorkers and non-New Yorkers: every attorney admitted to the New York bar needed a physical presence in the state. Moreover, there was no evidence that significant numbers of New York attorneys were practicing from their homes rather than their offices.

Judge Hall dissented, concluding that the majority had misinterpreted the Supreme Court as requiring evidence of a protectionist intent for purposes of a successful Privileges and Immunities challenge. He asserted that New York "has chosen to discriminate against nonresident attorneys with regard to their right to pursue a common calling, and it has failed to provide a substantial justification for that discrimination."

Panel: Judges Raggi, Hall, and Carney.

Argument: 06/04/2015

Date of Issued Opinion: 04/22/2016

Docket Number: 11‐4283‐cv

Decided: Reversed and Remanded

Case Alert Author: Steven Manganelli

Counsel: Schoenefeld Law Firm, LLC, Princeton, New Jersey, pro se, for the plaintiff-
appellee. Laura Etlinger, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, New York, for Defendants‐Appellants. David B. Rubin, Esq., Metuchen, New Jersey, for Amicus Curiae The New Jersey State Bar Association, in support of Plaintiff‐ Appellee. Leah M. Nicholls, Brian Wolfman, Institute for Public Representation, Washington, D.C., for Amici Curiae New York‐ Licensed Nonresident Attorneys, in support of Plaintiff‐Appellee.

Author of Opinion: Judge Raggi (majority); Judge Hall (dissent)

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 04/25/2016 02:10 PM     2nd Circuit     Comments (0)  

April 19, 2016
  United States v. Under Seal -- Fourth Amendment
Juvenile Cannot Be Tried as Adult Where No Constitutional Punishment for Conviction Would Exist

Areas of Law: Criminal Law

Issue Presented: Whether a juvenile can be tried as an adult under statute that mandates punishment upon conviction that is not constitutional for juveniles.

Brief Summary: A juvenile cannot be tried as an adult if the statute that the government seeks to try the juvenile under only provides mandatory life imprisonment or death as possible punishments because both are unconstitutional when imposed on juveniles.

Extended Summary: The defendant (whose name was withheld because he was a juvenile when the crime was committed) was alleged to have been involved in a gang-related murder shortly before his eighteenth birthday. The government sought to have him tried as an adult under 18 U.S.C §1959 (a)(1) for murder in the aid of racketeering. The defense opposed the motion to try the defendant as an adult on the basis that the punishments outlined by the statute, mandatory life imprisonment or death, were deemed by the Supreme Court to be unconstitutional when applied to juveniles. The District Court agreed and denied the transfer motion because the defendant could not be constitutionally sentenced if convicted. The government filed an interlocutory appeal based on the District Court's ruling.

The United States Court of Appeals for the Fourth Circuit affirmed the District Court's decision. The court held that the minimum penalty proscribed by the statute was mandatory life imprisonment, thus the District Court did not have discretion to sentence the defendant to a term less than life. This would have resulted in an unconstitutional sentence.

The court also held that the penalty clause of the statute could not be severed from the portion that defined the criminal act to cure its constitutional defect because the primary purpose of a criminal statute is to outline a penalty for criminal conduct. Without the penalty clause, the statute would not provide a penalty. Furthermore, severing the penalty clause would not provide adequate notice to the public about possible punishments a person might face if convicted under the statute. Therefore, severing the penalty clause would be unfair.

To read the full text of this opinion, click here.

Panel: Judges Agee, Harris, and Chuang

Argument Date: 12/8/2015

Date of Issued Opinion: 04/30/2016

Docket Number: Case Nos. 15-4265

Decided: Affirmed by published opinion

Case Alert Author: Kathleen DeNobile, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Julia K. Martinez, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Keva Jeannette McDonald, THE LAW OFFICE OF KEVA J. MCDONALD, Fairfax, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, Stephen M. Campbell, Tobias D. Tobler, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Frank Salvato, SALVATO LAW, Alexandria, Virginia, for Appellee.

Author of Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/19/2016 01:31 PM     4th Circuit     Comments (0)  

  Sixth Circuit: Inmate may skip administrative remedies if agency strays from its own procedures.
Headline: Sixth Circuit holds that an inmate may file civil-rights suit without exhausting administrative remedies when agency strays from its own procedures.

Case: Troche v. Crabtree

Area of law: Civil Rights, Administrative Law, Prison Litigation Reform Act

Issue: Must an inmate exhaust all steps in the administrative grievance process before suing if the agency fails to respond at each step?

Brief summary: An inmate appealed the district court's dismissal of his § 1983 civil suit against a corrections officer. The district court had found that the inmate failed to exhaust his administrative remedies, as required by Ohio law, before filing suit. The Sixth Circuit disagreed and reversed, concluding that the agency's failure to respond during grievance proceedings excused the inmate's supposed failure to exhaust administrative remedies.

Extended summary: An inmate alleged that he was severely beaten, without provocation, by a corrections offer. The inmate further alleged that after he was treated for his injuries, he was placed in isolation and deprived of food for two weeks.

In Ohio, prisoners must follow a three-step grievance procedure to complain about alleged misconduct. First, within 14 days, inmates must file an informal complaint to the staff member's direct supervisor or the responsible department. If the inmate gets no written response within a reasonable time, the inmate should contact an institutional inspector in writing or in person. If the inmate gets no response in four days, "the informal complaint step is automatically waived." Second, if the inmate has gotten no response or is dissatisfied with the response, he or she may file a notification of grievance within 14 days. The inspector must respond in writing within 14 days or get an extension. Third, if the inmate is dissatisfied with the outcome, he or she may appeal to the office of the chief inspector within 14 days.

Here, the inmate argued that on the same day as the assault, he submitted an informal complaint to the corrections officer's supervisor, which initiated the first step of the grievance process. The inmate never got a response. Thus, he moved to the second step and submitted a notification-of-grievance form to the inspector of institutional services. The inmate again got no response, so he sent, via internal prison mail, correspondence to prison personnel asking about the status of his grievance. After receiving no response for the third time, he filed a § 1983 civil suit alleging violations of his Eighth and Fourteenth Amendment rights.

The corrections officer moved for summary judgment, arguing that the inmate failed to satisfy the Prison Litigation Reform Act's requirement that he exhaust his available administrative remedies before suing in federal court. The officer supported his motion with declarations from the inspector stating that the inmate had not filed proper informal complaints or grievance forms, but rather improperly submitted two complaints to the wrong department and not to the officer's immediate supervisor. Further, the inspector claimed to have no record of receiving a request from the inmate asking for a status update. Finally, the inspector claimed to have investigated the incident and determined that the inmate's complaints were without merit.

The magistrate judge recommended that the district court grant the officer's motion for summary judgment, finding that the inmate failed to file an appeal under step three of the administrative process and thus had failed to exhaust his administrative remedies. The district court adopted the recommendation and granted summary judgment. The Sixth Circuit reversed.

To comply with the Act's exhaustion requirement, an inmate must "tak[e] advantage of each step the prison holds out for resolving the claim internally" and follow "the 'critical procedural rules' of the prison's grievance procedure to permit prison officials to review and, if necessary, correct the grievance 'on the merits.'" Here, both the Sixth Circuit and district court agreed that the inmate's declaration was sufficient to create a factual dispute on whether he satisfied the first two steps of the grievance procedure. But the Sixth Circuit disagreed with the district court's determination that he was required to file an appeal with the office of the chief inspector.

The Sixth Circuit noted that under the Ohio Administrative Code, "an inmate is statutorily authorized to proceed to step two of Ohio's grievance procedure if he does not receive a response to his informal complaint within a 'reasonable time.' However, such authorization is not granted to inmates who fail to receive a response to a notification of grievance form at step two of the grievance procedure." Although step two requires officials to "provide a written response to the grievance within fourteen calendar days of receipt," it does not authorize the inmate to proceed to step three if he does not receive a response. Because step one instructs inmates to proceed to step two after a "reasonable time," but step two does not, the inmate had no authority to move to step three, and in fact had nothing to appeal.

Since the inmate did not receive a response to his appeal, he did not have the required paperwork to file an appeal. Thus, absent language allowing the inmate to proceed, the court could not find that he was required to file a step-three appeal to exhaust his administrative remedies before filing his § 1983 suit. The Sixth Circuit added that "[w]hen pro se inmates are required to follow agency procedures to the letter in order to preserve their federal claims, we see no reason to exempt the agency from similar compliance with its own rules."

Panel: Circuit Judges Bernice B. Donald, Alice A. Batchelder, and Gilbert S. Merritt Jr.

Date of issued opinion: February 25, 2016

Docket number: 15-3258

Decided: Reversed and Remanded.

Counsel: ON BRIEF: Neal Shah, Steven T. McDevitt, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellant. Caitlyn A. Nestleroth, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Author of opinion: Circuit Judge Bernice B. Donald.

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0049p-06.pdf

    Posted By: Mark Cooney @ 04/19/2016 01:12 PM     6th Circuit     Comments (0)  

  In Re: National Football League Players Concussion Injury Litigation - Third Circuit
Headline: Third Circuit Affirms Class Certification for Massive NFL Concussion Settlement

Area of Law: Class Action, Entertainment

Issues Presented: Are retired NFL players a valid group for class certification if they file alleging damages related to head injuries?

Brief Summary: A number of suits from retired NFL players were aggregated into a class action against the organization for medical issues related to head injuries suffered during play. The class and defendant chose to settle at the District Court level, but certain members of the class objected to the validity of the settlement. The Third Circuit affirmed the District Court's class certification, and to the fairness of the proposed settlement, which resulted in over $1 billion being allocated to retired and deceased NFL players with certain Qualifying Diagnoses.

Extended Summary: In July 2011, former players in the National Football League sued in California Superior Court, alleging that the NFL failed to take reasonable action in protecting them from chronic risks of head injuries. The complaint claimed that the conduct inherent in a football game puts players at risk of repeated head trauma that can lead to severe mental disorders and brain injury. Additionally, the complaint alleged not only that the NFL was aware of the risk at which it was putting its players, but that it spread deliberate disinformation to keep them unaware of the true dangers of head injuries. The players also brought suit against Riddell for defective helmet design. This case concerned only the NFL.

The defense removed to federal court on the grounds that federal labor law preempted the claims, and moved to consolidate other such claims. In January 2012 the case was heard in the Eastern District of Pennsylvania as multidistrict litigation. Specifically, the NFL moved to dismiss claiming Collective Bargaining Agreements were the proper method of resolution, as per Int'l Bhd. of Elec. Workers v. Hechler 481 U.S. 851, 852 - 53 (1987). The players argued their negligence and fraud claims would not require federal interpretation of collective bargaining agreements.

In the midst of these arguments the parties agreed to a settlement of $765 million to compensate players and pay for medical exams. In January 2014 cases counsel filed a class action complaint and sought approval for class certification. After minor motions between the parties, they moved forward with a proposed settlement on April 22, 2015. It would uncap the compensation award, provide compensation for affected players, and provide funding for players about injury prevention. The awards to individual players would be modified depending on when the player retired, how long they played, and whether they suffered injuries unrelated to their NFL career.

The proposed class was all players who retired before July 7, 2014, creating subclasses of those who were or were not diagnosed with certain specific diseases identified as being connected to head trauma.

Certain members of the class objected to the proposed settlement, challenging its validity and the certification of the class.

Analyzing the factors for class certification, the court found that the retired player base was sufficiently numerous, as required by 23(a)(1). Their claims contained common critical factual questions, also satisfying commonality. While the defense argued there were differences in the way and periods of time over which the players were injured, the court dismissed this argument because the NFL displayed a consistent course of conduct for the entirety of the players. The objectives of the class were similarly typical, satisfying 23(a)(3).

As to adequacy of representation, the court disagreed that not appointing outside counsel removed adequacy, as such a measure was not required. They further disagreed that there was potential for conflict of interest, as the appointed counsel disclosed his status to all of the players involved in the action, and to the District Court. The incentives of the class members themselves, including both subclasses, were aligned such that there could be no fundamental conflict of interest.

The court further found that questions of fact predominated over the claims of the class, validating their certification under 23(b)(3). The conduct of the NFL and scientific questions regarding the class members' injuries were identical among the plaintiffs. The court especially distinguished Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997), which denied class certification in a nationwide asbestos suit but did leave room for mass tort actions to clear the hurdle of predominance.

Reviewing the settlement itself, the court applied an initial presumption of fairness, following its precedent to allow for such in cases of procedural equality. It also found that the District Court adequately applied precedent in examining whether the settlement was fair, specifically, the factors spelled out in In Re Prudential Insurance Company, 148 F.3d at 323. Going through these factors itself, the Court agreed with the District Court that the settlement was procedurally fair and would adequately represent the interests of the class.

Certain objectors argued that the settlement was unfair in that it excluded CTE as one of the qualifying diagnoses for players, thus making the settlement unfair. The court relied on earlier evidence showing that CTE was not well understood, the vast majority of players diagnosed with it would be compensated under another diagnosis, and the existing scientific knowledge does not justify compensation based on possible though unknown future effects. There were some post-litigation events that took place which the court felt did not affect the science or substance of the case at hand.

Objectors also argued the District Court erred in approving the procedure for attorney's fees, but the court believed they had adequate notice and objections were not raised in the adequate time.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/152206p.pdf

Panel (if known): Ambro, Hardiman, Nygaard

Argument Date: November 19, 2015

Date of Issued Opinion: April 18, 2016

Docket Number: 15-2206, 15-2217, 15-2230, 15-2234, 15-2272, 15-2273 15-2290, 15-2291, 15-2292, 15-2294, 15-2304 & 15-2305

Decided: Affirmed

Case Alert Author: John Farrell

Counsel: TerriAnne Benedetto Esq., David R. Buchanan Esq., Diogenes P. Kekatos Esq., Christopher A. Seeger Esq., Samuel Issacharoff Esq. [Argued], Gene Locks Esq., David D. Langfitt Esq., Dianne M. Nast Esq., Stephen F. Rosenthal Esq., Steven C. Marks, Arnold Levin Esq., Frederick S. Longer Esq., Brad S. Karp Esq., Theodore V. Wells Jr. Esq., Lynn B. Bayard Esq., Bruce A. Birenboim Esq., Walter R. Reiman Esq., Beth A. Wilkinson Esq., Paul D. Clement Esq., Andrew Ferguson Esq., David Zachary Hudson Esq., Robert M. Bernstein Esq., Robert C. Heim Esq., Sol H. Weiss Esq., Counsel for Appellees
Alan B. Morrison Esq., Scott L. Nelson Esq., Counsel for Amicus Appellant Public Citizen Inc.

Shana De Caro Esq., Michael V. Kaplen Esq., Counsel for Amicus Curiae Brain Injury Association of America

Christopher A. Bandas Esq., Howard J. Bashman Esq., [Argued] Gary P. Lightman Esq., Glenn A. Manochi Esq., Counsel for Appellants Craig and Dawn Heimburger

Edward W. Cochran Esq., John J. Pentz Esq., Counsel for Appellants Cleo Miller Judson Flint; Elmer Underwood; Vincent Clark, Sr.; Ken Jones; Fred Smerlas; Jim Rourke; Lou Piccone; James David Wilkins II

George W. Cochran Esq., Counsel for Appellant Curtis L. Anderson

Joseph Darrell Palmer Esq., Jan L. Westfall, Counsel for Appellant Darren R. Carrington

Richard L. Coffman Esq., Deepak Gupta Esq., [Argued] Matthew W.H. Wessler Esq., Jonathan E. Taylor, Esq. Mitchell A. Toups, Esq. Jason C. Webster, Esquire, Counsel for Appellants
Raymond Armstrong; Nathaniel Newton, Jr.; Larry Brown; Kenneth Davis; Michael McGruder; Clifton L. Odom; George Teague; Drew Coleman; Dennis DeVaughn; Alvin Harper; Ernest Jones; Michael Kiselak; Jeremy Loyd; Gary Wayne Lewis; Lorenzo Lynch; Hurles Scales, Jr.; Gregory Evans; David Mims; Evan Ogelsby; Phillip E. Epps; Charles L. Haley, Sr.; Kevin Rey Smith; Darryl Gerard Lewis; Curtis Bernard Wilson; Kelvin Mack Edwards, Sr.; Dwayne Levels; Solomon Page; Tim McKyer; Larry Barnes; James Garth Jax; William B. Duff; Mary
Hughes; Barbara Scheer; Willie T. Taylor

Lance H. Lubel, Esq., Adam Q. Voyles, Esq. Mickey L. Washington, Esq., Charles L. Becker, Esquire [Argued]; Counsel for Appellants Liyongo Patrise Alexander; Charlie Anderson; Charles
E. Arbuckle; Cassandra Bailey, as Representative of the Estate of Johnny Bailey; Ben Bronson; Curtis Ceaser, Jr.; Larry Centers; Darrell Colbert; Harry Colon; Christopher Crooms; Jerry W. Davis; Tim Denton; Michael Dumas; Corris Ervin; Doak Field; Baldwin Malcolm Frank; Derrick Frazier; Murray E. Garrett; Clyde P. Glosson; Roderick W. Harris; Wilmer K. Hicks, Jr.; Patrick Jackson; Gary Jones; Ryan McCoy; Jerry James Moses, Jr.; Anthony E. Newsom; Rance Olison; John Owens; Robert Pollard; Derrick Pope; Glenell Sanders: Thomas Sanders; Dwight A. Scales; Todd Scott; Frankie Smith; Jermaine Smith; Tyrone Smith; James A. Young, Sr.

Jared H. Beck, Esq., Elizabeth Lee Beck, Esq. Antonino G. Hernandez, Esq., Cullin A. O'Brien Esq. [Argued], Jeffrey J. Cairlanto, Esq. Counsel for Appellant Scott Gilchrist, individually and on behalf of the Estate of Carlton Chester "Cookie" Gilchrist

Dwight P. Bostwick, Esq., Cyril V. Smith, Esq., Ramya Kasturi, Esq., Counsel for Appellants
Jimmie H. Jones; Ricky Ray; Jesse Solomon

Stuart D. Lurie, Esq., Michael H. Rosenthal, Esq., Counsel for Appellant Andrew Stewart

Steven F. Molo, Esq. [Argued], Thomas J. Wiegand, Esq., Kaitlin R. O'Donnell, Esq., Eric R. Nitz, Esq. Rayiner I. Hashem, Esq., Jeffrey M. Klein, Esq., William T. Hangley, Esq., Michele
D. Hangley, Esq. Linda S. Mullenix, Esq., Counsel for Appellants Alan Faneca; Roderick "Rock" Cartwright; Jeff Rohrer; Sean Considine

David S. Coale, Esq., Edward J. Dennis, Esq., Kent D. Krabill, Esq., Counsel for Appellant James Mayberry

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 04/19/2016 09:41 AM     3rd Circuit     Comments (0)  

  Yates v. Terry et al. -- Fourth Circuit
Qualified Immunity No Guarantee for Police: Officer Faces Trial After Using Excessive Force on Iraq War Veteran

Areas of Law: Constitutional Law, Civil Law

Issue Presented: Whether denial of police officer's summary judgment motion in case alleging excessive force during a traffic stop (42 U.S.C. § 1983) should be reversed based on qualified immunity.

Brief Summary: In a published opinion written by Judge Biggs, the United States Court of Appeals for the Fourth Circuit ("the court") affirmed the district court's denial of Officer Christopher Terry's motion for summary judgment. The court held that Officer Terry did not have qualified immunity to protect him from liability for using excessive force on Brian Yates. More specifically, the court went through a two-step inquiry to determine whether Officer Terry was entitled to qualified immunity. First, the court was tasked with determining whether the facts established a constitutional violation. The court found that Officer Terry violated Yates' Fourth Amendment rights by using excessive force on him when he tased him three times during the traffic stop in question. Second, the court had to determine whether Yates' constitutional right to be free from such excessive force was clearly established. The court explained that any reasonable official in Officer Terry's position would have understood that his conduct of tasing a compliant arrestee three times during a non-threatening traffic stop was excessive force in violation of the arrestee's Fourth Amendment right to a reasonable seizure.

Extended Summary: On December 27, 2008, Brian Yates, a first sergeant and Iraq War Veteran, was driving on a highway in North Charleston, South Carolina. His mother and brother were in separate vehicles following closely behind him. While on the highway, Yates drove past two police cruisers, one being Officer Terry's. Officer Terry pulled onto the highway and was two vehicles behind Yates. When Officer Terry eventually activated his lights, Yates believed the officer was pulling over the car behind him. As a result, Yates switched lanes to allow Officer Terry to pass him. When Yates realized Officer Terry was attempting to pull him over, he compliantly stopped at a gas station.

At the gas station, Officer Terry approach Yates' vehicle and asked for his license. Yates indicated that he did not have his license on him but did have his military identification. Officer Terry then forced Yates out of his car and ordered him to put his hands on top of the car. Yates complied. Yates' mother and brother arrived at the scene during this time. Officer Terry then informed Yates that he was under arrest. When Yates asked why the officer did not provide an explanation. Yates kept both hands on the vehicle, but turned his head to the left. Officer Terry responded to Yate's movement by tasing him and Yates fell to the ground. Yates remained on the ground and did not make any attempts to get up, but Officer Terry proceeded to tase him a second time. After this second tase, Yates asked his brother to call his commanding officer and reached for his cell phone which was clipped to his waist. Officer Terry then tased Yates a third time. Following these events, other officers arrived on the scene and Yates was placed in handcuffs. He was charged with an excessive noise violation, no license in possession, and disorderly conduct. All of these charges were dropped.

On July 21, 2011, Yates filed this action in state court alleging multiple state and federal claims against Officer Terry, the City of North Charleston, the North Charleston Police Department, the Chief, and Unnamed John Does. The suit was removed to federal court and stayed while Yates was deployed to Germany and Kosovo. In May of 2014, Defendants moved for summary judgment and this motion was granted in all parts except with respect o the excessive force claim against Officer Terry in his individual capacity and various claims against the city. The claims against the city were eventually dropped after a subsequent motion, but Terry's excessive force claim was still at issue.

On April 28, 2015, the parties stipulated to all dismissals aside from Yates' 42 U.S.C. § 1983 claim for excessive force against Officer Terry. As a result, Officer Terry appealed this claim to the United States Court of Appeals for the Fourth Circuit, claiming that he was protected by qualified immunity. The court held that Officer Terry did not have qualified immunity to protect him from using excessive force on Yates. More specifically, the court went through a two-step inquiry to determine whether Officer Terry was entitled to qualified immunity.

First, the court was tasked with determining whether the facts established a constitutional violation. Here, Yates argued that Officer Terry used excessive force, which would be in violation his Fourth Amendment right to reasonable searches and seizures. As such, the court turned to the factors in Graham v. Conner to determine whether the amount of force used by Officer Terry was objectively reasonable. 490 U.S. 386 (1989). These factors included "the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396. The court found that all three factors weighed heavily in Yates' favor. First, his offense of driving without a license was a nonviolent minor traffic infraction and was only a misdemeanor. Second, Yates was unarmed and complied with all of the officer's orders, making the first two tases completely unreasonable. Moreover, even though Yates reached for his cell phone prior to being tased a third time, Yates' brother indicated at trial that the officer allowed Yates to slide him the phone and knew the reason Yates gave him the phone. Lastly, Yates never attempted to resist arrest or flee the scene.

Second, the court had to determine whether Yates' constitutional right was clearly established. The court explained that any reasonable official in Officer Terry's position would have understood that tasing a compliant arrestee three times during a non-threatening traffic stop was excessive force in violation of the arrestee's Fourth Amendment right to a reasonable seizure. As such, the court found that Officer Terry was not entitled to qualified immunity and thus affirmed the district court's denial of his motion for summary judgment.

To read the full opinion, click here.

Panel: Judges Wynn, Harris, and Biggs

Argument Date: 01/27/2016

Date of Issued Opinion: 03/31/2016

Docket Number: Case No. 15-1555

Decided: Affirmed by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Robin Lilley Jackson, SENN LEGAL, LLC, Charleston, South Carolina, for Appellant. Jason Scott Luck, SEIBELS LAW FIRM, P.A., Charleston, South Carolina, for Appellee. ON BRIEF: Gordon H. Garrett, GARRETT LAW OFFICES, North Charleston, South Carolina, for Appellee.

Author of Opinion: Judge Biggs

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/19/2016 07:32 AM     4th Circuit     Comments (0)  

April 13, 2016
  In re Pfizer Inc. Securities Litigation - Second Circuit
Headline: Second Circuit Vacates Summary Judgment Dismissal of Pfizer Securities Class Action Suit Back to District Court

Area of Law: Securities Law; Evidence

Issue(s) Presented: Whether the district court erred by excluding plaintiffs' expert on loss causation and damages from testifying at trial.

Brief Summary:
Plaintiffs-Appellants, Teachers' Retirement System of Louisiana and other investors, brought a class action against Pfizer, Inc. and several of its directors and officers, pursuant to the Securities Exchange Act, for making fraudulent misrepresentations and fraudulently omitting to disclose information regarding the safety of two of its drugs, Celebrex (celecoxib) and Bextra (valdecoxib). Plaintiffs allege that when the market eventually learned of the cardiovascular risks associated with these drugs, the value of Pfizer's shares fell, harming shareholders in the process.

The United States District Court for the Southern District of New York granted Pfizer's motion in limine to exclude Plaintiffs' expert on loss causation and damages from testifying at trial. Left with no testimony on these issues, Plaintiffs could not establish key elements of their claims, and the district court granted Pfizer's motion for summary judgment. The Second Circuit vacated summary judgment and remanded the case back to the district court, holding that the district court abused its discretion in precluding the expert's testimony about loss causation and damages in its entirety, rather than prohibiting only testimony about certain price adjustments made to calculate loss.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...ecff1c9cc6a/2/hilite/

Extended Summary: Celebrex and Bextra are part of a broad class of medicines known as non-steroidal anti-inflammatory drugs, which are used to treat chronic pain and inflammation. Before 1999, this class of drugs had a common problem; patients who used the drugs over a long period of time often developed stomach ulcers and other gastrointestinal problems. As a result, two pharmaceutical manufacturers - Merck & Co., Inc. and Searle - began researching a type of non-steroidal anti-inflammatory drug, known as a Cyclooxygenase 2 ("COX-2") inhibitor, which could reduce pain and inflammation without causing gastrointestinal distress. Both companies ultimately succeeded, with Merck creating a drug called Vioxx, and Searle creating Celebrex.

Pfizer, a research-based, global pharmaceutical company that develops, manufactures and markets prescription medicines first became involved with COX-2 inhibitors through Searle. In February 1998, Pfizer signed a series of agreements with Searle in which it agreed to, among other things, help market Celebrex. Searle later transferred control over Celebrex to Pharmacia through a merger in early 2000. Pfizer continued to fulfill its obligations until April 16, 2003, when it obtained the exclusive rights to manufacture, promote, and sell Celebrex and Bextra by purchasing Pharmacia.

Plaintiffs contend that, while Celebrex and Bextra eliminated the gastrointestinal issues associated with non-steroidal anti-inflammatory drugs, the drugs presented a different, dangerous side effect. As early as 1998, they claim, Pfizer and Searle knew about studies linking the COX-2 inhibitors to cardiovascular problems in patients, but because Celebrex was an enormous commercial success, Searle issued press releases and other public statements denying that the drugs presented such risks. When ownership of Celebrex passed to Pharmacia, and later to Pfizer, both companies continued to tout its safety, as well as the safety of Bextra, notwithstanding the discovery of additional medical evidence tying the drugs' use to heightened cardiovascular risks.

According to Plaintiffs, the press releases and public statements that Pharmacia and Pfizer issued during the class period had the effect of maintaining the public's misperception about the safety of Celebrex and Bextra. Plaintiffs claim that once information about studies linking the drugs to cardiovascular risks reached the public eye, Pfizer's share prices fell as investors reassessed the value of Celebrex and Bextra in light of the newly discovered risks. Plaintiffs brought a class action claiming Pfizer and several of its officers and directors misstatements concerning the cardiovascular risks associated with these drugs violated §§ 10(b), 20(a), and 20A of the Securities Act of 1934.

Plaintiffs retained Daniel R. Fischel, Professor Emeritus of Law and Business at the University of Chicago Law School and a former dean of that institution, to issue an expert report, based upon an "event study," regarding Pfizer's stock price change after the market learned about the cardiovascular risks associated with Celebrex and Bextra to establish loss causation and Plaintiffs' damages. Following discovery, the United States District Court for the Southern District of New York issued an order pursuant to Federal Rule of Evidence 702 excluding Fischel from testifying at trial. The district court reasoned that Fischel's failure to disaggregate the impact of Pfizer's alleged misrepresentations and those made by Searle and Pharmacia in his loss causation analysis rendered "his opinions unhelpful to the jury" in calculating damages caused by Pfizer alone. The court additionally rejected the methodology applied by Fischel in a supplement to his opinion adjusting his findings to account for the district court's determination in an earlier summary judgment ruling that stock-price declines on two particular dates could not reasonably be attributed to Pfizer's alleged misrepresentations. Plaintiffs could not establish essential elements of their claims without Fischel's testimony and, accordingly, the district court granted summary judgment in favor of Pfizer.

The Second Circuit vacated summary judgment, holding that the district court's rationale for excluding the testimony was inadequate to justify excluding it in its entirety. The Second Circuit held that, even assuming without deciding that Pfizer lacked authority over Searle and Pharmacia statements as Pfizer contends, Fischel's opinion did not need to account for the impact of the other companies' alleged misrepresentations to be helpful to the jury. The court reasoned that Fischel did not need to disaggregate the impact of the other companies' statements because Plaintiffs' "inflation maintenance theory" alleged that Pfizer concealed the same information as Searle and Pharmacia and, thus, is liable for the full extent of Plaintiffs' losses. The Second Circuit further held that, although the district court did not abuse its discretion in rejecting Fischel's methodology for adjusting his findings to account for stock-price fluctuation on two dates not attributable to alleged fraud, the court should have allowed Fischel to present his other findings. Holding that the district court abused its discretion in excluding the expert testimony in its entirety, the Second Circuit vacated the judgment and remanded to the district court for further proceedings.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...ecff1c9cc6a/2/hilite/

Panel (if known): Circuit Judges Kearse, Pooler, and Livingston

Argument Date: 5/26/2015

Date of Issued Opinion:
4/12/2016

Docket Number:
No. 14-2853-cv

Decided: Vacated and Remanded

Case Alert Author:
Nigyar Alieva

Counsel:
Gregory P. Joseph, Douglas J. Pepe, Sandra M. Lipsman, Joseph Hage Aaronson LLC, Jay W. Eisenhofer, James J. Sabella, Charles T. Caliendo, Grant & Eisenhofer P.A., Jonathan S. Massey, Massey & Gail LLP, David Kessler, Andrew L. Zivitz, Matthew L. Mustokoff, Kessler Topaz Meltzer & Check, LLP, for Plaintiff-Appellants; Miguel A. Estrada, Mark A. Perry, Gibson, Dunn & Crutcher LLP, Beth A. Wilkinson, Charles E. Davidow, Alexandra M. Walsh, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Andrew J. Ehrlich, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Lynn K. Neuner, George S. Wang, Simpson, Thacher & Bartlett LLP, John R. Wellschlager, DLA Piper LLP (US), Jennifer L. Spaziano, Skadden, Arps, Slate, Meagher & Flom LLP, George A. Stamboulidis, Baker & Hostetler LLP, Pamela R. Chepiga, Allen & Overy LLP, Michael L. Calhoon, Julie B. Rubenstein, Baker Botts LLP, for Defendant-Appellees

Author of Opinion:
Judge Livingston

Case Alert Circuit Supervisor:
Professor Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 04/13/2016 07:53 AM     2nd Circuit     Comments (0)  

April 11, 2016
  Gentry v. East West Partners Club Management, Inc. et al. -- Fourth Circuit
Finding the Right Standard: Court Upholds "But-For" Standard for Unlawful Termination Claim

Areas of Law: Employment Law, Disability Law, Americans with Disabilities Act

Issue Presented: (1) Whether the Americans with Disabilities Act requires proof that a plaintiff's disability was the "but-for" cause of termination. (2) Whether the district court's jury instruction on the definition of "disability" under the ADA was proper. (3) Whether the jury's award for damages was proper and adequate.

Brief Summary: In a unanimous decision, the United States Court of Appeals for the Fourth Circuit affirmed the district court's jury instruction on the proper causation standard under the Americans with Disabilities Act ("ADA") and the district court's jury instruction on the definition of disability under the ADA. The court also held that the jury's award for damages was adequate and proper.

Extended Summary: Judith Gentry was employed as an executive housekeeper at the Maggie Valley Club and Resort ("club"). In July 2007, Gentry fell at work and sustained a serious injury to her left foot and ankle. After surgery, she returned to work in January 2009; however, she continued to experience pain and difficulty walking. About a year later the club attempted to settle Gentry's workers' compensation claim, but Gentry declined out of fear that if she accepted, she might be terminated. Instead, she chose to mediate and her claim was ultimately settled in November 2010.

About a month later, Gentry was terminated. Gentry believed her termination was unlawfully connected to her disability and she sued the club on several state law grounds and under the ADA. At trial the jury found for Gentry on two of her state law theories, awarding her $20,000 in damages, but found for the club on all of her other claims. On appeal, Gentry challenged the jury instructions and the amount of damages awarded.

First, the Fourth Circuit determined that the district court's jury instruction on the termination standard for claims under the ADA was proper. The district court instructed the jury that to find for Gentry it must find that but-for Gentry's disability she would not have been terminated. On appeal, Gentry argued that the district court should have used the "motivating factor" standard instead - i.e., that the jury should find for her if her disability was a motivating factor in the decision to terminate her. The court analyzed the text of the ADA and held that its language required but-for causation. That conclusion, the court wrote, is also supported by the legislative history.

Next, the court addressed the definition of disability that the district court submitted in its instructions to the jury. Gentry argued that she was disabled under each of the three definitions of disability contained within the ADA. Under the ADA, if "a physical or mental impairment substantially limits one or more major life activities of [an] individual" then that individual is disabled. The district court instructed the jury that "substantially limits" means "restricts a person from performing [an] activity, compared to an average person in the general population." The court reviewed that instruction for plain error, and held that even assuming the instruction was erroneous Gentry's substantial rights were not affected. Accordingly, there was no reasonable probability that the court's instruction affected the outcome of her claim.

Under the ADA, an individual is also defined as "disabled" if that individual is "regarded as having such an impairment." The district court instructed the jury that it must decide if "a perception that [Gentry] was disabled, was the but-for reason" that she was terminated. The appellate court reviewed the instruction for abuse of discretion and found no such abuse.

Under the ADA, if an individual has "a record of...an impairment" then they are considered disabled. At trial, the district court omitted language from the instruction that would include even misclassified disabilities within that definition. However, because Gentry neither objected at trial, nor explained how the omission applied to her case, the court held that the district court did not abuse its discretion.

Finally, Gentry challenged the amount of damages the jury awarded. Gentry argued that because the club was permitted to explain its financial distress to the jury, she should have been able to introduce evidence that the club had liability insurance coverage. The court reviewed the district court's decision to not admit that evidence and held that it did not abuse it discretion in denying admission. Gentry also argued that she was entitled to a new trial because the jury's $20,000 award was inadequate. However, the court held that, in light of several mitigating factors that were submitted to the jury, it was reasonable for the district court to deny Gentry's motion for a new trial.

To read the full text of this opinion, please click here.

Panel: Judges Agee, Floyd, and Thacker

Argument Date: 12/10/2015

Date of Issued Opinion: 3/4/2016

Docket Number: 14-2382

Decided: Affirmed by published opinion

Case Alert Author:
Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: Glen Coile Shults, Jr., LAW OFFICE OF GLEN C. SHULTS, Asheville, North Carolina, for Appellant. Matthew J. Gilley, FORD HARRISON, LLP, Spartanburg, South Carolina; Jonathan Woodward Yarbrough, CONSTANGY, BROOKS, SMITH & PROPHETE, LLP, Asheville, North Carolina, for Appellees. ON BRIEF: Jule Seibels Northup, NORTHUP MCCONNELL & SIZEMORE, PLLC, Asheville, North Carolina, for Appellant.

Author of Opinion: Judge Floyd

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 12:25 PM     4th Circuit     Comments (0)  

  United States v. Adams -- Fourth Circuit
Justice Goes Full-Term: Court Reviews Claim of Actual Innocence After Right to Review Was Waived

Areas of Law: Plea agreements, Waiver of federal habeas review

Issue Presented: Whether waiver of the right to federal habeas review bars such review when the basis for relief is claim of actual innocence.

Brief Summary: In a unanimous decision, the United States Court of Appeals for the Fourth Circuit held that waiver will not bar federal habeas review when the petitioner asserts a cognizable claim of actual innocence.

In 2008, Richard Adams pled guilty to robbery, possessing a firearm during a crime of violence, and being a felon in possession of a firearm. Under the terms of the plea agreement, the prosecution dropped several other charges and Adams waived his right to challenge his convictions through federal habeas review. Adams was sentenced to concurrent 120-month sentences for robbery and being a felon in possession. In addition, Adams was sentenced to a consecutive 120 months for possession of a handgun during a crime of violence. His total sentence was thus 240 months. Adams appealed but his sentence and conviction were affirmed by the Fourth Circuit.

In 2012, Adams filed a petition for federal habeas review. Adams' basis for relief was that he was actually innocent of the felon in possession conviction because he was not, in fact, convicted of a prior felony. Adams' claim relied on a prior Fourth Circuit decision, which changed how convictions under North Carolina's Structured Sentencing Act are classified. The court held that felonies are crimes for which a defendant must have actually faced the possibility of more than a year in prison. Hypothetical enhancements can not convert a crime into a felony if that crime is punishable by less than one year in prison. Therefore, argued Adams, because his prior conviction was not a felony as a matter of law, he was actually innocent of being a felon in possession.

The district court dismissed Adams' federal habeas petition. The court found he waived his right to such relief, and alternatively that no actual prejudice was suffered because a ruling in his favor would result in Adams serving the same amount of time.

The Fourth Circuit vacated the district court's decision. First, the court discussed the district court's finding that no actual prejudice was suffered. Although the prosecution abandoned that argument on appeal, the court noted that Adams' appeal is not barred. Convictions carry collateral consequences, therefore even convictions which carry concurrent sentences can be challenged on appeal.

Next, the court held that Adams' waiver was valid because he received the benefit of a colloquy during which he was fully apprised of his rights. Waiver, however, will not bar review if to do so would be a miscarriage of justice. In order to avoid a miscarriage of justice, the court found that Adams' cognizable claim of actual innocence was not waived.

Next, the court addressed the merits of Adams' habeas petition. The court found that Adams was innocent "in fact," not merely innocent by operation of law because Adams was, in fact, not a prior convicted felon. Further, the court found that because Adams' dropped charges were not related to his felon in possession charge, he did not need to prove factual innocence of the dropped charges.

Finally, the court reminded the prosecution that seeking to reinstate the dropped charges in retaliation for Adams' successful appeal would be a violation of Adams' due process rights. Adams is actually innocent of his felon in possession conviction, therefore the court entered judgment in favor of Adams and vacated the district courts' decision.

To read the full text of this opinion, please click here.

Panel: Motz, Floyd, Circuit Judges, and Gibney, sitting by designation

Argument Date: 12/9/2015

Date of Issued Opinion: 2/19/2016

Docket Number: 13-7107

Decided: Vacated by published opinion

Case Alert Author: Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: Marianna F. Jackson, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant. Christopher Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert A. Long, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Seth M. Wood, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion:
Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 12:13 PM     4th Circuit     Comments (0)  

  Perdue Foods LLC v. BRF S.A. -- Fourth Circuit
Playing Chicken: Did Foreign Company Purposefully Avail Itself of Privilege of Conducting Business in State, Triggering Court's Jurisdiction?

Issue Presented: Whether the trial court had jurisdiction over a Brazilian chicken distributor whose only tie to the forum state was a business relationship with Perdue.

Brief Summary: Perdue Foods, LLC, sells chickens internationally and domestically under the trademark, Perdue. BRF is a Brazilian chicken producer that sells chicken in Brazil under the mark Perdix. BRF was also seeking to register that trademark in various foreign countries. In order to avoid product and consumer confusion, Perdue and BRF entered into an agreement by which BRF agreed not to pursue the trademark "Perdix" outside of Brazil and Perdue agreed not to pursue registration of "Perdue" in Brazil. Based on this agreement, the two companies began conducting a business relationship by which Perdue bought 700,000 pounds of chicken from BRF between 2012-2014. Pursuant to this contract, Perdue sent purchase orders to BRF in Brazil and BRF sent invoices to Perdue in Maryland. The chicken was shipped exclusively to Tanzania from Brazil.

Despite this business relationship, Perdue alleged that BRF had not honored the trademark agreement and continued to pursue registration of its mark "Perdix" in several foreign countries. As such, Perdue brought suit against BRF in the United States District Court for the District of Maryland. BRF moved to dismiss the action, arguing that the Maryland court had no personal jurisdiction over BRF. The District Court granted the motion, finding Perdue had not alleged sufficient facts to establish the requisite jurisdiction. Perdue appealed.

In examining whether the court had personal jurisdiction, the United States Court of Appeals for the Fourth Circuit first examined what kind of personal jurisdiction was alleged - specific or general. The Fourth Circuit determined that general jurisdiction would not apply as it requires continuous business relationships and contacts with Maryland. The court then examined the inquiry under specific personal jurisdiction - which requires that the defendant purposefully established minimum contacts within the forum state. In this inquiry, the court examined: (1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arose out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.

The Fourth Circuit ultimately held there were not sufficient facts under review to establish specific personal jurisdiction over BRF. Relying primarily on the first prong of the analysis, the court determined that BRF did not purposefully avail itself of the laws and privileges of the forum state (Maryland). The court was persuaded by the fact that BRF had no officers or offices in Maryland, never traveled to Maryland, never sent any products to Maryland, and never dealt with any company (other than Perdue) in Maryland. In fact, the only fact the court determined Perdue alleged that showed some connection to Maryland was the Maryland choice of law clause contained in the contract. Despite Perdue's efforts to equate this situation to Burger King, the court was unmoved. Burger King featured a more than twenty-year franchise relationship between the defendant and the forum state, and was thus distinguishable from this case. Unlike the prolonged business interaction between the franchise in Burger King and the forum state, BRF's contact with Maryland featured a very discrete contract between BRF and Perdue. Further, the court found it persuasive that BRF merely sent invoices to Maryland, but never anything further. Ultimately, the Fourth Circuit affirmed the District Court's ruling dismissing the action for lack of personal jurisdiction.

To read the full opinion, click here.

Panel: Judges Motz, Floyd, and Gibney, Jr.

Argument Date: 12/09/2015

Date of Issued Opinion: 02/19/2016

Docket Number: No. 14-2120

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Damon W.D. Wright, VENABLE LLP, Washington, D.C., for Appellant. Jeffrey Eric Ostrow, SIMPSON THACHER & BARTLETT LLP, Palo Alto, California, for Appellee. ON BRIEF: Brandon C. Martin, Palo Alto, California, Lori E. Lesser, SIMPSON THACHER & BARTLETT LLP, New York, New York; Geoffrey H. Genth, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Motz

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 11:29 AM     4th Circuit     Comments (0)  

  United States ex rel. May & Radcliffe -- Fourth Circuit
Qui Tam Fo Fum: I Smell the Blood of Narrow Construction of the Public Disclosure Bar of the False Claims Act

Issue Presented: Whether a suit brought by one qui tam relator based on information an attorney learned during the prior representation of a different qui tam relator qualified as being "based upon" under the Public Disclosure Bar of the False Claims Act?

Brief Summary: The False Claims Act ("FCA") gives the government the ability to fine individuals and companies who file for government reimbursement using false or fraudulent information. The FCA also allows private litigants to bring an action on behalf of the government. Should such an action prevail, the government will pay the individual a bounty. The public disclosure bar prevents a court from hearing any actions brought by a qui tam relator that are based on publicly disclosed information.

The instant false claims case arises out of litigation that has been before the United States Court of Appeals for the Fourth Circuit before. Approximately ten years ago, Mark Radcliffe (not a litigant in the current case) brought a qui tam action alleging the company he formerly worked for (Purdue Pharmaceuticals) falsely inflated the efficacy of OxyContin to get government reimbursement for a more expensive version of the drug. The court eventually dismissed that case, holding that an agreement Mr. Radcliffe signed as part of his severance barred his qui tam claim. Following that dismissal, his wife, Angela Radcliffe, took on the case as the plaintiff and filed an ultimately fruitless petition for cert.

The current case, filed by both Angela Radcliffe and another former Purdue employee, Steven May, alleges essentially the same claims made in Mr. Radcliffe's original qui tam action. Mrs. Radcliffe and Mr. May also used the same attorney Mr. Radcliffe used in the original action. The District Court ruled that the Public Disclosure Bar ("Bar") of the FCA meant that the court did not have jurisdiction over this claim.

Mr. May and Mrs. Radcliffe claimed that the Bar did not apply because they never reviewed the actual filings in Mr. Radcliffe's case, but instead relied on information that their attorney learned during his representation of Mr. Radcliffe in the prior case. The Fourth Circuit held that though the litigants may not have reviewed the actual filings, using information their attorney developed in the previous action was sufficiently "based upon" publicly disclosed information so as to bar the claim on jurisdictional grounds under the FCA. While noting that most other circuits actually use a substantially related standard - barring any claim that is substantially the same as or related to a publicly disclosed action - the Fourth Circuit determined that the purpose of the bar was to discourage "piggybacking" on information that was generally known to the public.

Panel: Judges Traxler, Diaz, and Agee

Argument Date: 10/29/2015

Date of Issued Opinion: 01/29/2015

Docket Number: No. 14-2299

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Mark Tucker Hurt, THE LAW OFFICES OF MARK T. HURT, Abingdon, Virginia, for Appellant. Daniel Stephen Volchok, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for 2 Appellees. ON BRIEF: Paul W. Roop, II, ROOP LAW OFFICE, LC, Beckley, West Virginia, for Appellant. Howard M. Shapiro, Christopher E. Babbitt, Charles C. Speth, Ariel Hopkins, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellees

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 11:20 AM     4th Circuit     Comments (0)  

April 7, 2016
  Eternal Word Television Network v. Alabama-11th Circuit
Headline: Eleventh Circuit holds that the accommodation for the Affordable Care Act's ("ACA") contraceptive mandate does not violate the Religious Freedom Restoration Act ("RFRA").

Area of Law: Constitutional Law

Issue: Whether the government imposes an undue burden on nonprofit organizations with a religious objection to providing contraceptive coverage by requiring them to opt out of ACA's contraceptive mandate.

Brief Summary: In three consolidated cases, Eternal Word Television Network, Inc. ("EWTN") and other nonprofit organizations with religious objections to providing contraceptive coverage to employees, challenged ACA's accommodations that required them to opt out of ACA's contraceptive mandate. The Eleventh Circuit found that ACA's accommodation does not substantially burden EWTN's rights because (1) the government has a compelling interest that justifies the accommodation, and (2) the accommodation is the least restrictive means of furthering those interests.

Extended Summary: EWTN and the Secretary of the United States Department of Health & Human Services ("HHS") filed cross-motions for summary judgment, with EWTN claiming that ACA's accommodation violated RFRA, the Free Exercise Clause, the Establishment Clause, and the Free Speech Clause of the First Amendment. The district court denied EWTN's motion, but granted the government's motion, and both parties filed appeals. In the other two cases, the district court granted a group of Catholic entities' summary judgment motions on the claim that the accommodation violated RFRA. The government appealed.

The Eleventh Circuit found that the mandate and accommodation did not violate RFRA because the accommodation survives strict scrutiny. This determination also disposed of the Free Speech claim. The court also rejected the Free Exercise claim, because the mandate was facially neutral and the government's legitimate interest was rationally related to the mandate. Additionally, the court determined that, since the accommodation distinguishes on the basis of tax status rather than religious denomination, it did not violate the Establishment Clause. The Eleventh Circuit stayed enforcement of the mandate, noting the presence of several cases currently pending before the United States Supreme Court on this issue.

Judge Tjoflat dissented based on his determinations that the regulatory scheme imposes a substantial burden on the religious exercise of the parties and that it does not survive strict scrutiny.

To view the full opinion please click here

Panel: Tjoflat, Jill Pryor and Anderson, Circuit Judges

Argument: February 4, 2015

Date of Issued Opinion: February 18, 2016

Docket Numbers: 14-12696, 14-12890, 14-13239

Decided: Affirmed in part, reversed in part, and remanded

Case Alert Author: Matthew Carcano, Kevin Coppin, Oscar Quintero, Kielan Saborit

Counsel:
Lori Halstead Windham for Appellant EWTN
Joshua Marc Salzman for Appellant/Appellee U.S. Dep't of Health et al.
Janine Cone Metcalf for Appellee The Roman Catholic Archdiocese

Author of Opinion: Circuit Judge Jill Pryor

    Posted By: Gary Kravitz @ 04/07/2016 03:24 PM     11th Circuit     Comments (0)  

  Quigg v. Thomas County School District-11th Circuit
Headline: The Eleventh Circuit holds the McDonnell Douglas framework is inapplicable to mixed-motive discrimination claims that are based on circumstantial evidence.

Area of Law: Employment Law

Issue: Whether the McDonnell Douglas framework is proper for evaluating mixed-motive employment discrimination claims that are based on circumstantial evidence.

Brief Summary: In a mixed-motive claim, the district court applied the framework set out in McDonnell Douglas v. Green, 411 U.S. 792 (1973). The Eleventh Circuit reversed the district court's use of the McDonnell Douglas framework and adopted a less burdensome standard used in other circuits.

Extended Summary: Linda Quigg, ("Quigg") claimed discriminatory and retaliatory practices when the Thomas County School District, and five members of the school board refused to renew her employment contract. The district court applied the McDonnell Douglas framework to Quigg's claim and found that no triable issue of discrimination existed based on the circumstantial evidence presented
On appeal, the Eleventh Circuit held the McDonnell Douglas summary judgment framework is "fatally inconsistent" with mixed-motive theory because the framework predicates on a single "true reason" for an adverse action. The Eleventh Circuit evaluated the framework applied in other circuits and held the proper analysis should only require a plaintiff to provide evidence sufficient to convince a jury that a defendant took adverse action and that a protected characteristic was a motivating factor in the action. Applying this framework, the Eleventh Circuit found Quigg's circumstantial evidence was sufficient to establish a jury issue. Additionally, the Eleventh Circuit affirmed the dismissal of some of Quigg's § 1983 claims and all her retaliation claims.

To view full opinion: Click Here

Panel: Wilson, William Pryor, and Gilman (United States Circuit Judge for the Sixth Circuit Court of Appeals, sitting by designation)

Argument: October 06, 2015

Date of Issued Opinion: February 22, 2016

Docket Number: 14-14530

Decided: Affirmed in part, reversed in part

Case Alert Authors: Matthew Carcano, Kevin Coppin, Oscar Quintero, Kielan Saborit.

Counsel: Harlan S. Miller, III for Appellant
Randall C. Farmer; Edward F. Preston for Appellee

Author of Opinion: Circuit Judge Wilson

    Posted By: Gary Kravitz @ 04/07/2016 02:28 PM     11th Circuit     Comments (0)  

April 5, 2016
  Balogh v. Lombardi - Eighth Circuit
Headline Eighth Circuit panel reverses district court order denying immunity to director of Missouri Department of Corrections

Area of Law Eleventh Amendment Immunity

Issue(s) Presented Whether a district court properly determined that the director of the Missouri Department of Corrections was not entitled to immunity from suit in an action by the American Civil Liberties Union.

Brief Summary A Missouri statute grants the director of the Missouri Department of Corrections (Department) the authority to selection an "execution team." The statute prohibits the disclosure of the identities of individuals who participate in executions. It further provides a private right of action to those individuals against anyone who "knowingly disclose[s] the identity of a current or former member of an execution team" without the Department director's approval. Mo. Rev. Stat. § 546.720.3.

The American Civil Liberties Union (ACLU) obtained documents related to executions under the Missouri Sunshine Law. It then posted the documents to its website, but later removed them when it learned of the statute prohibiting disclosure of the identities of execution team members. The ACLU sued the Department director, arguing that the statute was unconstitutional because it violated the ACLU's rights of free speech, free press, and due process under the First and Fourteenth Amendments. The director moved for summary judgment, claiming that he was immue from suit under the Eleventh Amendment, that the ACLU lacked standing, and that the claims failed as a matter of law.

The district court held that the director was not immune from suit, denied his motion in part on that basis, and deferred ruling on the other arguments. The district court found that because the director had a duty to enforce the statute by implementing an execution protocol and selecting the execution team, he was determining whose identities must be kept confidential, and therefore was not immune from suit.

On appeal, the Eighth Circuit disagreed. It first addressed the director's standing argument, and concluded that the ACLU did not having standing to bring this suit against the director. This conclusion was based on the fact that the director had no enforcement authority, because the statute only allowed for a private right of action by those whose identities were disclosed. The statute did not authorize the director to take any enforcement action against the ACLU for improper disclosure of execution team member identities. As such, the ACLU's claimed injury, chilled speech, was not "fairly traceable" to the director, and he had no ability to redress the alleged injury. The Eighth Circuit also found that because the director had no authority to enforce the challenged statute, he was also immune from suit under the Eleventh Amendment.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/03/143603P.pdf

Panel Chief Judge Riley, Circuit Judges Bye and Gruender

Date of Issued Opinion March 11, 2016

Decided Reversed

Docket Number 14-3603

Counsel Caroline Coulter for Appellant and Anthony Rothert for Appellees

Author Chief Judge Riley

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/05/2016 12:46 PM     8th Circuit     Comments (0)  

  Matherly v. Andrews -- Fourth Circuit
Forward Looking But Still Applicable: Fourth Circuit Holds Adam Walsh Act Not Impermissibly Retroactive

Areas of Law: Criminal Procedure, Criminal Law, Civil Procedure

Issues Presented: Whether the Adam Walsh Act ("the Act") was properly applied to a prisoner who was convicted of crimes and committed to Bureau of Prisons' ("BOP") custody before the Act became effective. Whether the BOP relinquished its legal authority over the prisoner before the government filed for certification of the prisoner as a "sexually dangerous person" under the Act.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the United States District Court for the Eastern District of North Carolina's ("district court") holding that the Adam Walsh Act was permissibly applied to a prisoner who was convicted and committed to the BOP's custody before the Act became effective. However, the Fourth Circuit reversed and remanded the district court's grant of summary judgment to the government on the issue of whether the BOP relinquished its legal authority over the prisoner before the government filed for certification of the prisoner as a sexually dangerous person.

Extended Summary: The Adam Walsh Act "authorizes the civil commitment of sexually dangerous persons who are in the custody of the BOP." A sexually dangerous person is a person who engaged in or "attempted to engage in sexually violent conduct or child molestation and" who "would have serious difficulty refraining from [such conduct] if released." Following completion of any criminal sentence the government or the BOP can ensure continued civil commitment by certifying to the district court that an individual is a sexually dangerous person. If such certification occurs, the inmate's release is stayed pending a hearing. "If after [the] hearing the district court finds by clear and convincing evidence that the person is" sexually dangerous, the court will commit the person to the Attorney General's custody "until it is determined that the person is no longer sexually dangerous to others."

Thomas Matherly pled guilty to one count of possessing child pornography. Following this conviction, his supervised release in an earlier case involving child sex charges was also revoked. He received a combined sentence in the two cases of 47 months imprisonment plus 3 years of supervised release. With time served and good time credits, Matherly was eligible for release on November 23, 2006. However, because November 23, 2006, was Thanksgiving Day, the BOP intended to release Matherly into supervised release on November 22, 2006. "On that same day, the government certified Matherly as a sexually dangerous person" under the Adam Walsh Act.

As required by the Act, the district court began civil commitment proceedings to determine whether Matherly was in fact sexually dangerous. Matherly conceded that he had previously molested children. He also conceded that he suffered from mental illness. In May 2012, after years of litigation by Matherly and others regarding the constitutionality of the Adam Walsh Act, the district court deemed Matherly to be sexually dangerous as defined by the Act. The court therefore ordered Matherly committed to the Attorney General's custody. In April 2013, Matherly filed a pro se petition for a writ of habeas corpus alleging that "the Act had been impermissibly applied retroactively to him." Matherly also contended he was not in BOP custody "within the meaning of [the Act]" when the government filed its certification. The district court rejected Matherly's claim, and Matherly appealed.

The Fourth Circuit affirmed the district court. The Fourth Circuit found that the Act does not operate retroactively and was therefore not impermissibly applied to Matherly. The Act addresses the potential for future harm posed by sexual predators and is not punishment for past crimes. The court explained that Congress expressed its intent that the Act apply to people "in the BOP's custody who would pose a current threat to the public if released," regardless of when the individual was convicted or was committed to the BOP's custody. Moreover, the court explained that the Act is not impermissibly retroactive as it "does not seek to affix culpability for prior acts" and only uses prior acts "for evidentiary purposes to support a finding of a person's mental abnormality, future dangerousness, or both."

However, the Fourth Circuit reversed the district court's grant of summary judgment to the government and remanded to allow the parties to further develop the record on when the government relinquished its legal authority over Matherly. In the court's view the records Matherly submitted were "insufficient to demonstrate that the BOP relinquished its legal authority over Matherly prior to the government's filing" for his certification as a sexually dangerous person.

To read the full text of this opinion, please click here.

Panel: Chief Judge Traxler, and Circuit Judges Agee and Wynn

Argument Date: 01/28/16

Date of Issued Opinion: 03/16/16

Docket Number: Case No. 14-7691

Decided: Affirmed in part; reversed and remanded in part by published opinion.

Case Alert Author: Simone Chukwuezi, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Joshua Robbins, Brian Remondino, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Michael Lockridge, BUREAU OF PRISONS, Butner, North Carolina, for Appellee. ON BRIEF: Stephen L. Braga, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Thomas G. Walker, United States Attorney, R.A. Renfer, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Chief Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/05/2016 08:52 AM     4th Circuit     Comments (0)  

April 4, 2016
  Tyree v. United States -- Fourth Circuit
Pro Se Appellant Prevails: Federal Inmate Granted Opportunity for Discovery Before Court Reviews Merits

Areas of Law: Civil Law (Torts), Civil Procedure

Issue Presented: Whether the district court abused its discretion in entering summary judgment prior to discovery.

Brief Summary: The United States Court of Appeals for the Fourth Circuit ("the court") vacated and remanded the district court's grant of summary judgment to the government because the court had not allowed the parties to engage in the discovery process. The court found that discovery might have created a genuine issue of material fact sufficient to defeat summary judgment.

Extended Summary: Scott Tyree ("Tyree"), a federal prison inmate, filed suit under the Federal Tort Claims Act ("FTCA"), alleging that prison officials failed to protect him from, and failed to respond promptly to, an attack by his cellmate. Based primarily on the Government's affidavits accompanying its motion for summary judgment, the district court ruled that the prison guards responded immediately to the altercation, and granted summary judgment for the Government.

Tyree appealed this determination to the United States Court of Appeals for the Fourth Circuit, contending that the district court abused its discretion in entering summary judgment prior to discovery. Tyree emphasized that there was a dispute over how quickly the prison officials responded and this could have been resolved by video surveillance in the prison and written reports. Additionally, he asserted that prison records might show whether his cellmate had an institutional record indicating he should not have been housed with Tyree. Lastly, Tyree argued that he could have discovered whether the emergency system, including the tone and light, at the prison, was operational. The Fourth Circuit agreed with Tyree and ultimately vacated and remanded the district court's granting of summary judgment to the government, finding that discovery would potentially have created a genuine issue of material fact sufficient to defeat summary judgment.

To read the full opinion, click here.

Panel: Judges Motz, Floyd, and Davis

Argument Date: 02/19/2016

Date of Issued Opinion: 03/23/2016

Docket Number: Case No. 15-7528

Decided: Vacated and remanded by unpublished per curiam opinion

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: Scott Tyree, Appellant Pro Se. Michael Bredenberg, SPECIAL ASSISTANT UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Per Curiam

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2016 02:35 PM     4th Circuit     Comments (0)  

  United States v. Cowley -- Fourth Circuit
Fourth Circuit Says 'No Way' to COA for IPA Appeal

Areas of Law: Criminal Procedure, Criminal Law, Appellate Procedure

Issues Presented: Whether a certificate of appealability is required for the denial of an Innocence Protection Act ("IPA") motion; and whether the district court abused its discretion when denying Cowley's IPA motion for untimeliness.

Brief Summary: In August 2000, Shane Cowley was convicted of crimes stemming from the attempted robbery and murder of Jeff Stone. He was sentenced to 45 years in prison. Both his conviction and sentence were affirmed on appeal. In 2004, Cowley's motion to vacate pursuant to 28 U.S.C. § 2255 was denied by the district court and the United States Court of Appeals for the Fourth Circuit. Also, in 2004, the Innocence Protection Act (IPA) became law allowing "federal prisoners to move for court-ordered DNA testing under certain specified conditions." Cowley's instant appeal centers on the denial of his IPA motion.

Before reviewing the denial of Cowley's IPA motion, the Fourth Circuit considered the government's argument that Cowley's appeal was not properly before the court because the district court denied a Certificate of Appealability (COA) and the Fourth Circuit did not grant one. The government further claimed that a COA was needed because the IPA motion presents itself as a successive habeas petition. The Fourth Circuit, citing both statutes, held that an appeal from the denial of an IPA motion is not subject to the COA requirement. First, the court explained the plain language of the IPA does not contain a COA requirement. Comparatively, the statute for a § 2255 motion expressly requires a COA. Next, the court found the text of the IPA makes clear that it is intended to provide different relief than habeas remedies. Therefore, the Fourth Circuit found that a COA is not needed for an appeal from the denial of an IPA motion.

After deciding that Cowley's appeal was properly before it because he did not need a COA, the Fourth Circuit examined the denial of Cowley's IPA motion for DNA testing for an abuse of discretion. A motion under the IPA must meet ten requirements including timeliness. There is a rebuttable presumption of timeliness on motions, "made within 60 months of enactment of the Justice for All Act of 2004 or within 36 months of conviction, whichever comes later." Cowley's motion was not subject to this rebuttable presumption because his 60-month period expired five years before his motion was filed.

Cowley argued that he could overcome a finding of untimeliness by demonstrating good cause and manifest injustice. First, Cowley stated he had shown "good cause" because he had been incarcerated for eight years between the IPA's passing and filing his motion and as such he had not been able to find an attorney or investigators to work on his case. The Fourth Circuit rejected this argument, explaining that incarceration and the inability to find an investigator are not good causes as all those bringing IPA motions will be incarcerated. The court further explained that ignorance of the law is also not enough for good cause. Next, Cowley argued that the denial of his motion would result in manifest injustice. Considering "all relevant facts and circumstances surrounding the motion," the Fourth Circuit rejected this argument as well.

The Fourth Circuit stated that both Cowley and his attorney were aware of the underlying DNA claims as early as trial but Cowley still waited 8 years to file the IPA motion. The court also pointed out that Cowley was appointed counsel during his § 2255 proceedings. Thus, for some time after the IPA was passed he did have counsel. Moreover, there was a minimal showing that the evidence would have DNA material available for testing and that the results of testing would "raise a reasonable probability" that Cowley didn't commit the crimes. Because Cowley was unable to rebut the presumption of untimeliness by showing good cause and manifest injustice, his motion was untimely. Thus, the Fourth Circuit found that the district court did not abuse its discretion and affirmed its denial of Cowley's IPA motion seeking DNA testing.

To read the full text of this opinion, please click http://www.ca4.uscourts.gov/Op...6067.P.pdf">here. [/L]

Panel: Judges Traxler, Shedd, and Dillon

Argument Date: 12/8/2015

Date of Issued Opinion: 2/29/16

Docket Number: No. 15-6067

Decided: Affirmed by published opinion

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: James Yash Moore, THE LAW OFFICE OF JAMES Y. MOORE, Ludlow, Kentucky, for Appellant. Erik S. Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: R. Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee

Author of Opinion: Judge Dillon

Case Alert Supervisor: Professor Reneé Hutchins

    Posted By: Renee Hutchins @ 04/04/2016 02:20 PM     4th Circuit     Comments (0)  

March 31, 2016
  Andrade-Zamora v. Lynch - Eighth Circuit
Headline Eighth Circuit panel denies petition for review of immigration judge decision regarding application for cancellation of removal

Area of Law Immigration Law

Issue(s) Presented Whether an immigration judge properly pretermitted an application for cancellation of removal where underlying theft conviction was vacated.

Brief Summary Petitioner Andrade-Zamora petitioned the Eighth Circuit for review of a decision by an immigration judge pretermitting his application for cancellation of removal. The underlying removal decision was based on petitioner's conviction for theft in the fourth degree, a crime involving moral turpitude. Petitioner conceded that he was removable, but argued that he was eligible to apply for cancellation despite his conviction on two grounds. First, because a state court vacated his conviction for theft. Second, because his conviction for a crime involving moral turpitude would preclude him from applying for cancellation of removal only if he was admitted to the United States within five years of committing the offense, which he was not, since he was never lawfully admitted to the United States.

With respect to the first issue, along with his motion for cancellation of removal, Petitioner submitted an order from an Iowa state court. The order made the conviction for theft in the fourth degree a "nullity" because the parties had discovered "material evidence" that could not be discovered before Petitioner pled guilty. In such cases, the person seeking cancellation of removal has the burden to prove that the conviction was vacated on the merits. If the conviction was vacated for a reason unrelated to the merits, such as to avoid immigration consequences, the conviction will still stand for immigration purposes despite its vacatur.

In this case, the Eighth Circuit found that Petitioner did not meet his burden of proof. The timing and effect of the order, just two weeks after the government filed its notice alleging that Petitioner was removable, was suspicious and suggested that the vacatur was for immigration purposes. Moreover, the order itself did not prove that the conviction was vacated for a substantive or procedural reason, and Petitioner could also point to no "material evidence" supporting the vacatur, nor could he provide any explanation for why the sentence was vacated.

With respect to the second issue, Petitioner argued for an interpretation of the removal statute that would only prohibit aliens who had been lawfully admitted into the United States within five years of being convicted of a crime involving moral turpitude from applying for cancellation of removal. Petitioner argued that since he was never lawfully admitted into the United States, the statute did not apply to him. Petitioner's interpretation was contrary to the interpretation of the Board of Immigration Appeals (BIA). This interpretation question was an issue of first impression for the Eighth Circuit.

The Eighth Circuit determined that the BIA's interpretation of the statute is entitled to Chevron deference. In keeping with the rulings of sister circuits, the Eighth Circuit held that the BIA's interpretation is supported by the structure of the statute, and also avoids illogical results. The Court therefore rejected Petitioner's interpretation of the statute and denied the petition for review.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/02/152004P.pdf

Panel Circuit Judges Bye, Loken, and Wollman

Date of Issued Opinion February 26, 2016

Decided Petition for review denied

Docket Number 15-2004

Counsel Gail E. Boliver for Petitioner and Aaron Nelson for Respondent

Author Circuit Judge Bye

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 03/31/2016 10:58 AM     8th Circuit     Comments (0)  

  Oxygene v. Lynch -- Fourth Circuit
To Stay or Not to Stay: Removal of Haitian Refugee under Convention Against Torture Act Contingent on Showing of Specific Intent to Torture

Areas of Law: Immigration Law

Issue Presented: Whether a Haitian refugee who committed four felonies in the United States should be granted deferral of removal under the Convention Against Torture ("CAT").

Brief Summary: In a published opinion written by Judge Motz, the United States Court of Appeals for the Fourth Circuit ("the court") held that Wilerms Oxygene ("Oxygene") failed to establish that Haitian authorities would detain him (if deported) with the specific intent to inflict torture--a showing required under CAT. As a result, the court denied Oxygene's application for deferral of removal under CAT.

Extended Summary:
In 1994, Oxygene and his family fled political violence in Haiti and were admitted to the United States as refugees. In 2001, five years after he became a Legal Permanent Resident, Oxygene was convicted in a Virginia court of burglary, grand larceny, robbery, and use of a firearm to commit a felony. In 2011, the Department of Homeland Security commenced a removal proceeding against him. Shortly thereafter, Oxygene applied for deferral of removal under the Convention Against Torture Act ("CAT"). His application was heard by an Immigration Judge ("IJ").

Relying on U.S. Department of State country reports, the IJ found that "on several occasions police 'allegedly beat or otherwise abused detainees and suspects' and 'corrections officers use[d] physical punishment and psychological abuse to mistreat prisoners.'" The IJ further found that "approximately seventy percent [of prisoners] 'suffered from a lack of basic hygiene, malnutrition, poor quality health care, and water-borne illness.'" Notwithstanding these findings, the IJ, relying heavily on In re J-E, 23 I. & N. Dec. 291 (BIA 2002), ultimately denied Oxygene's application. The IJ found that Oxygene had failed to demonstrate it was "more likely than not" that he would suffer torture upon removal to Haiti.

Oxygene timely appealed this denial to the BIA and included new medical evidence regarding his PTSD and depression that he alleged impacted his CAT claim. The BIA affirmed the removal order, indicating that Oxygene failed to show how the new evidence would change the result of the case.

Oxygene appealed to the United States Court of Appeals for the Fourth Circuit. First, the Fourth Circuit explained that it had limited jurisdiction over Oxygene's appeal due to his prior aggravated felony conviction. The sole issue considered by the court on appeal was whether In re J-E states the correct legal standard for intent in CAT claims.

The Fourth Circuit ultimately held that In re J-E's "specific intent" standard for CAT claims is correct and, as a result, denied Oxygene's application for deferral of removal under CAT. In reaching this conclusion, the court first looked to the specific language of the original CAT treaty, which defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The court explained that this is an express understanding of how the United States wished executive and judicial bodies to later interpret this treaty when it was implemented into domestic law. In 1998, Congress enacted the Foreign Affairs Reform and Restructuring Act ("Act") to implement CAT. In that Act, Congress defined torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The Act also said that "in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering." The court emphasized that this statutory language indicated specific intent was meant to be the standard under which CAT is assessed. Lastly, the court turned to In re J-E, explaining that the decision is consistent with the prior legislative history regarding the "specific intent" standard and is almost identical to Oxygene's. As a result, the court stated that In re J-E should be given deference and Oxygene's application for deferral of removal under CAT should be denied because he only offered evidence of general, rather than specific, intent that the Haitian government would torture him upon his deportation to Haiti.

To read the full opinion, click here.

Panel: Judges Motz, King, and Keenan.

Argument Date:
12/08/2015

Date of Issued Opinion: 02/22/2016

Docket Number: Case No. 14-2380

Decided: Denied in part and dismissed in part by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Tamara L. Jezic, YACUB LAW OFFICES, Woodbridge, Virginia, for Petitioner. Jeffrey R. Leist, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division; Ernesto H. Molina, Jr., Assistant Director; Gladys M. Steffens Guzman, Trial Attorney, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Judge Motz

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/31/2016 09:21 AM     4th Circuit     Comments (0)  

March 29, 2016
  Ojo v. Lynch -- Fourth Circuit
Board of Immigration Appeals Must Recognize State Adoption Decisions

Areas of Law: Immigration Law, Administrative Law

Issue Presented: Whether the Board of Immigration Appeals must recognize state court orders determining when an individual has been adopted.

Brief Summary: Adebowale O. Ojo, a native of Nigeria and the adopted son of a U.S. citizen ("USC"), petitioned the United States Court of Appeals for the Fourth Circuit for review of a decision by the Board of Immigration Appeals ("BIA") denying Ojo's motion to reopen his removal proceedings. In denying the motion, the BIA relied on its administrative interpretation of INA § 1101(b)(1)(E)(i), relating to the adoption of children by USCs. The Fourth Circuit vacated the BIA decision and remanded for further proceedings because, contrary to what the BIA asserted INA § 1101(b)(1)(E)(i) is not ambiguous and thus does not contain a gap that Congress left for the BIA to fill. Moreover, the BIA's interpretation, which summarily disregards valid state court orders, is contrary to law.

Extended Summary: Ojo was born in Nigeria on August 28, 1983, and lawfully entered the U.S. in August 1989. Two weeks later, when Ojo was six years old, his uncle, a USC, became Ojo's legal guardian. More than ten years later, when Ojo was sixteen years old, Ojo's uncle filed a petition to adopt Ojo. On January 24, 2001, after Ojo turned seventeen, the Circuit Court for Montgomery County, Maryland entered a judgment of adoption. Between 2009 and 2012, Ojo was convicted of two drug-related offenses. The offenses qualify as aggravated felonies under INA § 1101(a)(43)(B). In May 2013, the Department of Homeland Security ("DHS") charged Ojo with removability from the U.S. under INA § 1227(a)(2)(A)(iii) due to his aggravated felonies and the DHS' refusal to recognize his derivation of citizenship.

On May 5, 2014, an immigration judge determined that Ojo was removable from this country by clear and convincing evidence. The judge explained that because Ojo turned sixteen on August 28, 1999, and was not adopted by a USC until he was seventeen years old, he did not qualify as an adopted child under INA § 1101(b)(1)(E). On appeal to the BIA, Ojo advised the BIA that his adoptive father would seek a nunc pro tunc order (a court ruling that applies retroactively to correct an earlier ruling) from the Montgomery County Circuit Court specifying that Ojo's adoption became effective before he turned sixteen years old. The BIA ruled that Ojo was seventeen years old when adopted and did not qualify as an adopted child under INA § 1101(b)(1)(E) for the purposes of derivative citizenship under INA § 1431. In November 2014, Ojo filed a motion to reopen his removal proceedings, supported by a nunc pro tunc order entered on October 29, 2014, by the Montgomery County Circuit Court. That order made Ojo's adoption effective on August 27, 1999, the day before he turned sixteen years old. The BIA denied Ojo's motion to reopen, observing that it did not recognize nunc pro tunc adoption decrees after a child reaches the age limit for both the filing of the adoption petition and decree. This is the BIA's Cariaga/Drigo precedent. On July 8, 2015, as the Fourth Circuit's review was pending, the BIA modified the Cariaga/Drigo precedent in its Matter of Huang decision, 26 I&N Dec. 627 (BIA 2015). In Huang, the BIA stated that it would recognize a nunc pro tunc order relating to an adoption "where the adoption petition was filed before the beneficiary's 16th birthday."

Applying a Chevron analysis, the Fourth Circuit held that the plain meaning of the term "adoption" in the relevant sections of the INA was not ambiguous. Where Congress speaks clearly, the statutory language controls and the BIA is not entitled to deference. The Fourth Circuit found no indication in the text of § 1101(b)(1)(E)(i) that Congress intended to alter or displace the plain meaning of "adopted." Therefore, a child is "adopted" for purposes of § 1101(b)(1)(E)(i) on the date that a state court rules the adoption effective, without regard to the date on which the act of adoption occurred. The federal government has "deferred to state-law policy decisions with respect to domestic relations." United States v. Windsor, 133 S.Ct. 2675, 2691 (2013). Therefore, the date on which an individual has been "adopted" under § 1101(b)(1)(E)(i) will depend on the effective date of the adoption as set forth in the relevant state court instructions. Carachuri-Rosendo v. Holder, 560 U.S. 563, 576-78 (2010) (explaining that federal immigration court must look to state conviction itself to determine whether state offense is "aggravated felony" under the INA).

According to the Fourth Circuit, it was contrary to law for the BIA not to recognize the nunc pro tunc order in Ojo's case. As a result, the BIA abused its discretion in denying Ojo's motion to reopen his removal proceedings.

To read the full opinion, click here.

Panel: Judges Motz, King, and Keenan

Argument Date: 12/08/2015

Date of Issued Opinion: 02/16/2016

Docket Number: No. 15-1138

Decided: Vacated and remanded by published opinion

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Henry Caleb Griffin, GRIFFIN AND GRIFFIN, Annapolis, Maryland, for Petitioner. Sefanie A. Svoren-Jay, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent

Author of Opinion: Judge King

Case Alert Supervisor: Professor Renée Hutchins

Edited: 03/29/2016 at 11:50 AM by Renee Hutchins

    Posted By: Renee Hutchins @ 03/29/2016 09:09 AM     4th Circuit     Comments (0)  

March 21, 2016
  Sixth Circuit: Probation order may allow search without reasonable suspicion
Case: U.S. v. Tessier

Area of law: Fourth Amendment; Probation

Issue: May a probationer whose probation order contains a search condition be subjected to a search in the absence of reasonable suspicion?

Brief summary: A probationer who'd pleaded guilty to a federal child-pornography charge appealed the district court's denial of his motion to suppress evidence of child pornography. The evidence was found during a warrantless search of his residence, which police conducted without reasonable suspicion. Addressing a question "left open" by the Supreme Court's Knights decision, the Sixth Circuit affirmed, noting that the probationer had signed off on broad consensual language in his probation order: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time."

Extended summary: The probationer pleaded guilty to a federal child-pornography charge but reserved the right to challenge the denial of his motion to suppress evidence of child pornography, which was found during a search of his residence without reasonable suspicion. At the time of the search, the probationer was on probation for a felony conviction for sexual exploitation of a minor. The probationer's probation order contained the state's "standard" search condition: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time." The probationer appealed the district court's denial of his motion to suppress the evidence, arguing that the search violated his Fourth Amendment rights due to the lack of reasonable suspicion under the totality of the circumstances. He relied on the Supreme Court's decision in United States v. Knights.

As the Sixth Circuit observed, Knights held that reasonable suspicion is sufficient to uphold a search of a probationer who is subject to a search condition. But Knights left open the issue of "the constitutionality of a suspicionless search" because, in that case, the search "was supported by reasonable suspicion." In this case, however, there was no reasonable suspicion. The officers, as part of a general sweep, searched all residences of known sex offenders in the county. When they entered the probationer's residence, they found a laptop computer containing pornographic material and seized it.

Despite the lack of reasonable suspicion, the Sixth Circuit upheld the search. The court reasoned that under the standard search condition that applies to all probationers in Tennessee, the probationer agreed to a warrantless search of his property and residence "by any . . . law enforcement officer, at any time." The probationer signed the search permit as a condition of his probation. Just above his signature, the language provided: "I have read or have had read to me, the conditions of my Probation. I fully understand them and agree to comply with them." He also signed a specialized-conditions form below other language that stated, "I understand that if I do not agree with any condition, I have a right to petition the Sentencing Court for a modification. Any release from these instructions will be provided to me in writing." The probationer did not petition for modification, and thus his consent to be searched was valid when the search was made.

Panel: Circuit Judges Eugene Siler, Julia Gibbons, and John Rogers.

Date of issued opinion: February 18, 2016

Docket number: 15-5284

Decided: Affirmed.

Counsel: ARGUED: R. David Baker, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Gwendolyn Stamper, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: R. David Baker, Andrew Brandon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Gwendolyn Stamper, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Author of opinion: Circuit Judge John Rogers.

Case alert author
: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0042p-06.pdf

Edited: 03/21/2016 at 11:20 AM by Mark Cooney

    Posted By: Mark Cooney @ 03/21/2016 11:13 AM     6th Circuit     Comments (0)  

March 16, 2016
  Harris v. Fischer
Headline: Second Circuit Reiterates that Inmates Retain a Limited Right to Bodily Privacy Under the Fourth Amendment, and Vacates Dismissal of Female Prisoner's Challenge to a Male Guard's Inspection of Her Genitalia

Area of Law: Prisoners' Rights

Issue Presented: Whether the district court erred in granting the defendant prison officials' motion for summary judgment when there were claims that the defendants violated the plaintiff's Fourth and Eighth Amendment rights by holding her down so that a male officer could inspect her genitalia.

Brief Summary: The plaintiff, Audra Lynn Harris, was incarcerated at Bedford Hills Correctional Facility, located in Bedford Hills, New York, for burglary and criminal contempt. Representing herself, she brought suit in the United States District Court for the Southern District of New York, asserting multiple claims relating to her treatment in prison. The particular focus of this appeal was her claim that, after she ripped open a mattress and tried to use the mattress's cotton to block prison officials from watching her while she changed clothes, she was subjected to a strip search in which a male officer inspected her genitalia to see if she was hiding cotton there. Although the district court dismissed this claim on summary judgment, the Second Circuit vacated, holding that there were material factual disputes and that the district court's analysis rested on an incomplete assessment of law, particularly the Fourth Amendment's protection of an inmate's right to bodily privacy.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...c88880246e4/2/hilite/

Extended Summary: Plaintiff, Audra Lynn Harris, alleges that while she was an inmate at Bedford Hills Correctional Facility ("the facility"), four corrections officers violated the Fourth and Eighth amendments when they infringed upon her bodily privacy. When Harris was incarcerated at the facility, she received a designation indicating that she showed symptoms of major/serious mental illness and needed care, treatment, and support from the mental health staff. In addition to a plethora of other grievances and allegations, Harris alleged an incident in which she was ordered into an observation room and directed to change into a smock. When she attempted to put the smock on over her clothing to get undressed, the officers knocked her down and pulled off her clothing, injuring her in the process. After the officers threw the smock back at Harris, she requested medical assistance, but the officers refused. Because of this incident, Harris pulled cotton out of her mattress and used water to paste it onto the windows of the observation room.

When the defendants, Officers Ella Anderson, Valerie Bryant, Robin Trotter, and Michael Miller, entered her room to remove the cotton from the windows, Miller asked Harris if she had any more cotton. When Harris said no, the three female officers, Anderson, Bryant, and Trotter, threw Harris on the ground, lifted her smock, and forcibly opened her legs to allow the male officer, Miller, to visually inspect her genitalia for additional cotton. In her opposition to the defendants' summary judgment motion, Harris provided affidavits and sworn testimony regarding this incident. The defendants provided no such proof to dispute the incident, but merely asserted in their briefs that it did not occur. The district court dismissed Harris's complaint in full, and Harris appealed.

Under the Fourth Amendment of the United States Constitution, the prohibition of unreasonable searches does not apply within the confines of a prison cell. However, inmates do have a limited right to bodily privacy under the Fourth Amendment. When an inmate brings a Fourth Amendment claim challenging an isolated search (as opposed to a prison regulation or policy), courts apply the standard set forth in the Supreme Court's Bell v. Wolfish decision. Under this framework, courts must do a case-specific balancing of the need for the search against the invasion of personal rights that the search entails. This balancing test requires courts to consider "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted."

In applying this balancing test to these facts, the Second Circuit noted that a visual body cavity search, like the one conducted here, is particularly invasive, especially when conducted by the opposite sex. The court also noted that there was little evidence about the justification for the search, adding that there was no evidence that "possessing cotton, in one's genitalia or elsewhere, violates prison rules." The court emphasized that "inmates retain a limited right of bodily privacy under the Fourth Amendment," and vacated the district court's dismissal of this claim, remanding it for reconsideration in light of this discussion.

As to the plaintiff's Eighth Amendment claim that the search violated her right to be free from cruel and unusual punishment, the Second Circuit concluded that Harris' allegations could lead a factfinder to decide that the defendants used force maliciously and sadistically. Thus, it similarly vacated the district court's dismissal of this claim and remanded it for reconsideration. It also suggested that on remand, the district court consider appointing pro bono counsel for Harris - who had been representing herself - and permitting the parties to take further discovery.

Panel: Chief Judge Katzmann; Circuit Judge Kearse; District Judge Schofield, sitting by designation

Argument Date: 01/15/2016

Argument Location: New York, NY

Date of Issued Opinion: 03/15/2016

Docket Number: 14-2957

Decided: Vacated and Remanded

Case Alert Author: Ryan Koleda

Counsel: Arun S. Subramanian, Susman Godfrey L.L.P., New York, N.Y., for Plaintiff-Appellant; David Lawrence III, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Michael S. Belohlavek, Senior Counsel, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Defendants-Appellees

Author of Opinion: Per Curiam

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Emily Gold Waldman

    Posted By: Emily Waldman @ 03/16/2016 09:38 PM     2nd Circuit     Comments (0)  

  Steve Klein v. City of Laguna Beach
Area of Law: Civil Rights, Civil Procedure, Remedies

Headline: Ninth Circuit panel rejected the district court's application of the Farrar-exception in determining attorneys' fees under 42 U.S.C. § 1988(b) because (1) the plaintiff sought only nominal damages, (2) the extent of a plaintiff's success is the "most critical factor" in determining fees, and (3) the plaintiff achieved its primary goal of removing certain city regulations on speech.

Issues Presented: Under 42 U.S.C. § 1988(b), should the Farrar-exception apply when the plaintiff, the prevailing party, sought only nominal damages and achieved its primary objective of removing certain provisions in a city ordinance?

Does the Erie Doctrine require the Ninth Circuit to apply a state law permitting the award of attorneys' fees to plaintiffs prevailing in federal court on state law claims when a plaintiff has not prevailed on its state law claim and the remaining matters before the federal court are federal law claims?

Brief Summary: In 2008, Steve Klein ("Klein") brought an action under federal and state constitutions in district court after the city manager of Laguna Beach rejected Klein's application to use amplified speech to conduct religious activities along the public grounds bordering Laguna Beach High School. During the course of the litigation, the City of Laguna Beach ("City") altered its ordinances regulating the use of amplification devices during certain times in public locations. After a Ninth Circuit panel addressed issues in the case for the second time on appeal, Klein was awarded nominal damages on "three of his four as-applied challenges under federal law." When Klein, as the prevailing party, moved for attorneys' fees under 42 U.S.C. § 1988(b), the district court denied the motion, applying the Farrar-exception which prohibits an award of attorney's fees when a plaintiff seeks compensatory damages but nevertheless receives only nominal damages. The district court also denied Klein fees under California Civil Procedure Code section 1021.5, which permits plaintiffs who prevail on California state law claims in federal court to collect attorneys' fees. The district court rejected Kein's argument that, because he pled a California state law claim, he is entitled to fees under the California statute even though he lost on the claim. Klein appealed a third time to challenge the district court's denial of attorneys' fees on Klein's state and federal claims.

With respect to the denial of attorney's fees under 42 U.S.C. § 1988(b), the panel vacated and remanded because (1) a substantial monetary payout was not obtainable absent a compensatory damage request, and Klein's action did not seek to recover private damages; (2) Klein only sought nominal damages of $4,000 under California law; (3) a relief requested under state law does not bear on a determination as to what legal standard applies to motions under federal law; (4) comparing the damages awarded and the amount sought is a significant consideration; and (5) the extent of the success obtained is "'the most critical factor,'" Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436); and (6) Klein obtained the primary relief sought when "the City voluntarily repealed all challenged portions of the sound ordinance as a result of [Klein's] lawsuit." Klein II, 533 F. App'x at 755.

With respect to denial of attorney's fees under California Civil Procedure Code section 1021.5, the panel affirmed the district court's denial of attorneys' fees on the state claim on the grounds that the Erie doctrine does not require a federal court to apply state law when determining a federal law claim and, since Klein was only a prevailing party on his federal claims, and "since we address federal, not state claims, the federal common law of attorney's fees, and not [state] law, is the relevant authority." Citing Modzelewski v. Resolution Trust Corp., 14 F.3d 1375, 1379 (9th Cir. 1994).

Significance: The Ninth Circuit panel construed the Farrar-exception to 42 U.S.C. § 1988(b) narrowly, holding that Farrar only applies to plaintiffs seeking compensatory damages. The panel also held that the Erie doctrine, with respect to a state law regulating fees on state law claims brought in federal court, does not govern a federal court's determination of fees in connection with non-prevailing state law claims.

Extended Summary: On December 3, 2008, Steve Klein ("Klein") brought an action in district court seeking relief under the United States Constitution, the California Constitution, and the California Bane Act ("Bane Act"). Klein's claims arose out of a rejection of his application to use amplified speech to conduct religious activities along the public grounds bordering Laguna Beach High School. The rejection was pursuant to Laguna Beach Municipal Code section 5.40.010, which authorized the city manager to exercise unconditional discretion over the approval or denial of sound amplification permits.

During the course of the litigation, the Laguna Beach City Council repealed Chapter 5.40 of the Municipal Code and amended Code provision, section 7.25.120. Klein then amended his complaint to challenge the amended ordinance, which expressly precluded Klein's request to use sound amplification equipment within 300 feet of Laguna Beach High School and City Hall and in "the busy downtown commercial area of the City" between the hours of 5:00 p.m. and 6:00 p.m."

The case went before the Ninth Circuit three times on appeal. On the first appeal, a Ninth Circuit panel reversed the district court's ruling the ordinance was "a content neutral, reasonable restriction on time, place and manner of speech," holding that the regulation was not "narrowly tailored to the City's interests," that the "fundamental interest in the protection of all people's constitutional rights" favored a finding for Klein; and that the City had in place other regulations "prohibiting excessive and disruptive sounds."

Subsequent to the decision on the first appeal, the parties made cross-motions for summary judgment after the City made another amendment to Code provision, section 7.25.120 by eliminating the proximity limitations and extending the hours during which amplified speech could be performed. On the second appeal, a Ninth Circuit panel upheld the district court's ruling awarding nominal damages on Klein's assertions that the repealed permit requirements constituted impermissible prior restraint and that the speech restriction in the City's downtown area constituted a violation of the First Amendment. Although the Ninth Circuit panel upheld the district court's ruling that the City's proximity limitations on amplified speech near high schools was constitutional, the Court reversed the district court's denial of Klein's summary judgment motion concerning the restrictions on speech near City Hall. As a result, "Klein therefore won nominal damages on three of his four as-applied challenges under federal law."

The district court's denial of Klein's motion for attorney's fees was the basis for the third appeal. The district court concluded that under 42 U.S.C. § 1988(b), nominal damages made Klein a "prevailing party," but under Farrar, Klein's victory was "technical" and therefore he had no entitlement to attorney's fees. See Farrar, 506 U.S. at 115 (1992). Applying the Farrar factors, the district court concluded that Klein's nominal damage award achieved no "public goal," was a "de minimis" success, and Klein's rights under the First Amendment were "not so significant as to overcome the other two factors, which counsel strongly against an award of fees." Because Klein did not prevail on his state law claims, the district court could not grant Klein's motion for fees under California Civil Procedure Code section 1021.5.

On de novo review, at issue before the Ninth Circuit was whether the district court determined Klein's attorney's fees by applying the correct legal standard. Generally, in determining the reasonableness of fees, district courts apply the "lodestar method," which is a procedure by which courts multiply a reasonable hourly rate by "the number of hours the prevailing party reasonably expended on the litigation . . . ." Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013) (quoting Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006)). The result of the lodestar method may be adjusted according to factors identified in Hensley, 461 U.S. at 433 (1983). Because the extent of the success achieved is "the most critical factor" in determining whether fees are reasonable, Farrar, 506 U.S. at 114 (quoting Hensley, 461 U.S. a 436), without applying the lodestar method or the Hensley procedure, a court may award low or no fees when plaintiffs "seek[] compensatory damages but receive[] no more than nominal damages." Id. at 115.

Klein argued that the Farrar-exception does not apply when a plaintiff does not seek compensatory damages and only seeks to obtain nominal damages. The panel agreed because (1) a substantial monetary payout was not obtainable absent a compensatory damage request, and Klein's action did not seek to recover private damages," Farrar, 506 U.S. at 114 (quoting Riverside v. Rivera, 477 U.S. 561, 585 (1986) (Powell, J., concurring in the judgment)); (2) Klein only sought nominal damages of $4,000 under the Bane Act; and (3) a relief requested under state law does not bear on a determination as to what legal standard applies to 42 U.SC § 1988 motions.

The district court concluded that there was "no principled basis to treat differently a plaintiff who does not seek compensatory damages because he cannot prove actual injury from a plaintiff who seeks compensatory damages and fails to prove actual injury . . . ." The Court disagreed, holding that the Farrar exception does not control because:

"Klein's primary goal was to change the City's policy, not to secure compensatory damages. Although Klein did not receive a permanent injunction and declaratory relief, the district court appears to have denied such relief only because the City voluntarily eliminated the policies about which Klein complained. It is more accurate to think of Klein's request for an injunction as being mooted when the City changed the law to accommodate Klein's planned conduct, rather than denied on its merits. Klein achieved the outcome he sought when he filed this lawsuit, and Farrar 'does not control' in these circumstances."

The second issue before the paenl was whether California Civil Procedure Code section 1021.5, which permits plaintiffs who prevail on California claims in federal court to collect attorneys' fees, governed the Court's determination of fees for Klein's non-prevailing state law claims. The Court answered this question in the negative because (1) the Erie Doctrine does not require a federal court to apply state law when determining a federal law claim; (2) the issues before the Court involved federal law claims, not the claims on which Klein did not prevail; and (3) because the court was addressing federal law claims and not state law claims, "the federal common law of attorney's fees, and not [state] law, [was] the relevant authority." Modzelewshi v. Resolution Trust Corp., 14 F.3d 1375 (9th Cir, 1994). In other words, the Erie Doctrine does not govern a federal court's determination of fees in connection with non-prevailing state law claims.

The Court affirmed, with respect to the district court's denial of attorney's fees under California Civil Procedure Code section 1021.5, and vacated and reversed, with respect to the district's court application of the Farrar exception in determining Klein's fees under 42 U.S.C. § 1988(b).

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/14/13-56973.pdf

Panel: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Jack Zouhary, District Judge.

Argument Date: December 10, 2015

Date of Issued Opinion: January 14, 2016

Docket Number: 13-56973

Decided: AFFIRMED in part, VACATED in part, and REMANDED.

Case Alert Author: Andre Clark

Counsel: Michael J Kumeta, La Mesa, California; William G. Gillespie (argued), Bonsall, California, for Plaintiffs-Appellants. Philip D. Kohn, Michelle D. Molko (argued), Rutan & Tucker, LLP, Costa Mesa, California, for Defendant-Appellee.

Author of Opinion: Ronald M. Gould, Circuit Judge:

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/16/2016 06:23 PM     9th Circuit     Comments (0)  

  Sgt. Jeffrey S. Sarver v. Nicolas Chartier
Headline: California's Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute precluded a right-of-publicity claim arising out of the film The Hurt Locker on the grounds that the film involved an issue of public concern and the plaintiff failed to state and substantiate a legally sufficient claim.

Area of Law: California's anti-SLAPP statute, Right of Publicity

Issues Presented:
Did the act or acts of which the plaintiff complained of involve a matter of public concern under California's Anti-SLAPP statute?

Was the plaintiff able to demonstrate his right-of-privacy claim was legally sufficient with a reasonable probability of prevailing on his claim?

Brief Summary: A journalist wrote an article focusing on Sargent Sarver's life and experiences during the Iraq War and within his Army unit. The journalist later wrote the screenplay for the film that became The Hurt Locker. Sargent Sarver alleged he never consented to the use of his name and likeness in the article or film, that the way he was portrayed harmed his reputation, and thus filed various claims - including a right of publicity claim. The defendants filed a motion to strike Sarver's complaint under California's anti-SLAPP statute. The district court granted the motion on the grounds that (1) the defendants' speech was a matter of public concern and thus protected by the First Amendment, and (2) the film's use of Sarver's identity was transformative. Applying the anti-SLAPP statute's two-step approach, the Ninth Circuit panel affirmed, holding that (1) because the Iraq War was a matter of public concern and (2) Sarver could not state and substantiate a legally sufficient right of publicity claim, the lower court did not err in granting the defendants' anti-SLAPP motions.

Significance: In matters of public concern, journalists, screenplay writers, and other artists may transform the stories of real individuals into art - be it articles, movies, or plays - so long as the speech does not appropriate the economic value of a performance or persona, nor seek to capitalize from a celebrity's image in commercial advertisements.

Extended Summary: Plaintiff Sarver was a Sargent in the United States Army during the Iraq War. In December 2004, journalist Mark Boal was embedded in Sarver's unit, which was stationed in Iraq and whose principal duty was to dispose of improvised explosive devices (IEDs). Boal spent a significant amount of time following Sarver, observing him while on and off duty, taking pictures and video of Sarver, and interviewed Sarver once he was back in the States.

In August 2005, Boal wrote an article focusing on Sarver's life and experiences in Iraq and had it published in Playboy. A condensed version was published in Reader's Digest. Boal later wrote the screenplay for the film that became The Hurt Locker. Sarver alleges (1) he never consented to the use of his name or likeness in either of the articles, (2) he attempted to remove portions of the article before its publication in Reader's Digest, (3) the movie's main character mirrored his life story, and (4) that the portrayal of the movie's main character falsely portrayed him in a way that harmed his reputation.

In March 2010, Sarver filed suit in the District Court of New Jersey against Boal, the film's director, its producer(s), and other corporate defendants. The complaint alleged misappropriation of Sarver's likeness and right of publicity, false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and negligent misrepresentation. The case was transferred to the Central District of California pursuant to 28 U.S.C. § 1404(a).

On February 1, 2011, the defendants filed a motion to strike Sarver's complaint under California Civil Procedure Code § 425.15, California's Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute. For the defendants' anti-SLAPP motions to succeed, they must first show that "'the act or acts of which the plaintiff complains were taken in furtherance of [the defendants']right of petition or free speech under the United States or California Constitution in connection with a public issue."' Second, if defendants satisfy this initial burden, the burden shifts to the plaintiff to "establish a reasonable probability that the plaintiff will prevail on his or her . . . claim." Id. In other words, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" Hilton v. Hallmark Cards, 599 F.3d 18 SARVER V. CHARTIER 894, 903 (9th Cir. 2009) (quoting Wilson v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002)). The district court granted defendants' motion concluding that California's anti-SLAPP statute applied because the defendants were engaged in the exercise of free speech in connection with a public issue, and also that "[e]ven assuming that [Sarver] and Will James share similar physical characteristics and idiosyncrasies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie."

Sarver timely appealed to the U.S. Court of Appeals for the Ninth Circuit. Before addressing the merits of Sarver's claim, the Ninth Circuit panel had to determine (1) whether the district court properly applied California law instead of New Jersey law, and (2) whether the defendants' anti-SLAPP motion was timely filed.

The Ninth Circuit panel concluded that the district court did not err in applying California law under the Restatement (Second) of Conflict of Laws sections 6 and 145. The panel held that California had the most significant relationship to the current litigation, which would be sufficient to overcome any presumption of Sarver's domicile, whatever Sarver's domicile may have been. The panel also rejected Sarver's contention that defendants' anti-SLAPP motion was not timely filed, holding that the motion was timely filed under Federal Rule of Civil Procedure section 56(b). The panel explained that, when a procedural state law directly collides with a Federal Rule of Civil Procedure, district courts are not obligated to adhere to the procedural state law.

In determining the merits of the defendants' anti-SLAPP motions, the first issue was whether the act or acts, of which the plaintiff complained, involved a matter of public concern and thus qualified as protected speech under the United States Constitution or the California Constitution. Sarver attempted to narrow the issue by arguing that the acts were not of public concern since he was not personally in the public's eye before the film. The panel identified three categories of public issues - including topics that are of widespread, public interest - and held that the Iraq War and the use of IEDs was a matter of significant and sustained public attention. The court held that, because the focus was on Sarver's conduct and experiences during the Iraq War, California's standard for finding an issue of public concern was met.

The panel then considered whether Sarver was able to demonstrate that his right-of-privacy claim was legally sufficient with a reasonable probability of prevailing on his claim. After reviewing past decisions involving right of publicity claims, the panel held that Sarver was unable to state and substantiate a legally sufficient right of publicity claim on the grounds that the challenged speech (1) did not exploit the economic value of any performance or persona Sarver had worked to develop, (2) is not proposing a commercial transaction, and (3) took the raw materials gathered about Sarver's life and Iraq experiences and transformed them into an artistic movie.

The panel further ruled that, even if California's right of publicity law would apply in this case, it would be a content-based restriction and thus unconstitutional without a showing of a compelling state interest in preventing the defendants' speech.

To read full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/17/11-56986.pdf

Panel: Diarmuid F. O'Scannlain, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges.

Argument Date: May 9, 2013

Date of Issued Opinion: February 17, 2016

Docket Number: No. 11-56986

Decided: Affirmed.

Case Alert Author: Melissa A. Padilla

Counsel:

Michael R. Dezsi (argued), Law Office of Michael R. Dezsi, PLLC, Detroit, Michigan, for Plaintiff-Appellant.

Jon-Jamison Hill, Kahan & Gorry, Beverly Hills, California; and Jeremiah T. Reynolds, Kinsella Weitzman Iser Kump & Aldisert LLP, Santa Monica, California (argued), for Defendant-Appellee.

Author of Opinion: Hon. Diarmuid F. O'Scannlain

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/16/2016 06:21 PM     9th Circuit     Comments (0)  

  Sophia Daire v. Mary Lattimore, Warden - Ninth Circuit en banc
Headline: Ninth Circuit en banc overruled its own precedent and established that the standard for determining when a criminal defendant's Sixth Amendment right to counsel is violated by ineffective counsel is governed by Strickland v. Washington (1984) 466 U.S. 668 in non-capital sentencing proceedings.

Area of Law: Criminal Law; Claims for Ineffective Assistance of Counsel in Noncapital Sentencing Proceedings

Issue Presented: Notwithstanding preexisting Ninth Circuit precedent to the contrary, does Strickland v. Washington, 466 U.S. 668, 694 (1984), govern claims for ineffective assistance of counsel in noncapital sentencing proceedings?

Significance: It is clearly established that Strickland v. Washington governs claims for ineffective counsel, even in noncapital sentencing proceedings.

Brief Summary: While serving a 40 year "three strikes" prison sentence after a conviction for first degree burglary, defendant Daire filed a writ of habeas corpus. She claimed her attorney provided ineffective assistance of counsel during sentencing under the standard articulated in Strickland, 466 U.S. at 687.

On federal habeas review, the district court held, according to Ninth Circuit precedent, that the application of the Strickland standard to noncapital sentencing proceedings was not "clearly established Federal law" for purposes of 28 U.S.C. § 2254(d)(1). The statute provides that an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

The Ninth Circuit panel voted to rehear the case en banc to reconsider circuit precedent. It remanded the case back to the three-judge panel to apply the standard articulated in Strickland and overruled Cooper - Smith v. Palmateer, 397 F.3d 1236, Davis v. Grigas, 443 F.3d 1155 and other similar contrary decisions.

Extended Summary: After defendant was convicted by a California jury of first degree burglary, she claimed that her attorney, during sentencing, provided ineffective assistance of counsel under the standard articulated in Strickland, 466 U.S. at 687.

The Ninth Circuit voted to rehear this case en banc to reconsider Ninth Circuit precedent holding that there was no "clearly established" federal law on the question of whether Strickland v. Washington, 466 U.S. 668, 694 (1984), governs claims for ineffective assistance of counsel in noncapital sentencing proceedings. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005) and Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006).

The panel had held that it was bound by Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005), which held that, "[s]ince Strickland, the Supreme Court has not decided what standard should apply to ineffective assistance of counsel claims in the noncapital sentencing context. Consequently, there is no clearly established law in this context. Because the Supreme Court has not clearly established what constitutes ineffective assistance in this context, other courts are free to do so."

Before Cooper, the United States Supreme Court applied Strickland to a noncapital sentencing proceeding in Glover v. United States, (2001) 531 U.S. 198. Furthermore, in Lafler v. Cooper (2012) 132 S.Ct. 1376, 1388, the Supreme Court ruled that Glover established that there exists a right to counsel during sentencing in noncapital cases. Even though sentencing does not concern the defendant's guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because "any amount of additional jail time has Sixth Amendment significance."

Accordingly, the Ninth Circuit en banc overruled its prior precedent and remanded to the panel that heard the appeal.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/09/12-55667.pdf

Panel: Sidney R. Thomas, Chief Judge, Stephen Reinhardt, M. Margaret McKeown, Richard C. Tallman, Johnnie B. Rawlinson, Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea, N. Randy Smith, Mary H. Murguia and Paul J. Watford, Circuit Judges

Argument Date: The en banc court unanimously concluded the case was suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Date of Issued Opinion: February 9, 2016

Docket Number: 12-55667

Decided: January 12, 2016

Case Alert Author: Mia Lomedico

Counsel:
Sara J. O'Connell, Covington & Burling LLP, San Diego, California, for Petitioner-Appellant.

Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Lance E. Winters, Senior Assistant Attorney General; Kenneth C. Byrne, Supervising Deputy Attorney General; Xiomara Costello, Deputy Attorney General, Los Angeles, California, for Respondent-Appellee.

Author of Opinion: Per Curiam

Circuit: Ninth
Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/16/2016 06:19 PM     9th Circuit     Comments (0)  

  In re Grand Jury Investigation, United States of America v. Doe Corporations and Corporations
Area of Law: Civil Procedure and Evidence, Exception to Attorney-Client Privilege

Headline: A district court must review in camera individual subpoenaed documents before deciding whether they should be produced under the crime-fraud exception to the attorney-client privilege.

Issue Presented: Whether a district court must examine individually subpoenaed documents to determine that the specific attorney-client communications for which production is sought are "sufficiently related to" and were made "in furtherance of the intended, or present, continuing illegality" under the crime-fraud exception to the attorney-client privilege.

Brief Summary: Suspecting that the appellant Corporation's advertisements were "inadequately inform[ing] consumers of potential risks" of a surgical device allegedly in violation of the Food, Drug, and Cosmetic Act ("FDCA"), the Food and Drug Administration ("FDA") opened an investigation and sent warning letters to the Corporation and a few medical centers in California. In response to the FDA's warning letters, attorneys for the Corporation and several medical centers sent letters to the FDA. The government alleged that these responses contained false statements designed to obstruct the FDA investigation. Grand jury subpoenas were issued to the attorneys to produce all communications and retainer agreements in relation to the FDA investigation. All three attorneys failed to fully comply with this order and the government filed a motion to compel. The district court granted the motion, without conducting an in camera review of the individual documents, on the basis that the government had established a prima facie case of crime-fraud.

The Ninth Circuit panel agreed with the district court that "in camera review is not necessary during step one [of the crime-fraud inquiry] to establish a prima facie case that 'the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme'." However, the panel did not agree with the district court's order to produce all the subpoenaed documents without previously conducting an in camera review of the individual documents themselves to determine that the specific attorney-client communications that were sought is "'sufficiently related to' that were made 'in furtherance of the intended, or present, continuing illegality.'" In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090 (9th Cir. 2007).

Significance: This decision establishes a precedent in the Ninth Circuit to require in camera review of subpoenaed documents to determine which individual documents contain communications that are "sufficiently related to" and were made "in furtherance of the intended, or present, continuing illegality," which will allow the party to invoke the crime-fraud exception to the attorney-client privilege.

Extended Summary: The director and health officer for the Los Angeles County Public Health reported the Corporation to the Food and Drug Administration ("FDA") for inadequate marketing information with respect to a surgical devise for medical facilities. The Corporation contacted the FDA - through an attorney - with the intention to dissuade the FDA from further investigating the matter. Nevertheless, the FDA opened an investigation and sent letters to the Corporation informing it that the FDA believed its advertising violated the Food, Drug, and Cosmetic Act (FDCA). Another attorney for the Corporation and a third attorney on behalf of a few medical centers sent letters to the FDA in response to these warning letters. The government alleged that these letters provided "false statements designed to obstruct the FDA investigation."

Under the crime-fraud exception to attorney-client privilege, grand jury subpoenas were issued to the three lawyers to produce all communications and retainer contracts relating to the FDA investigation. The attorneys did not fully comply with the subpoenas. Finding that the Government had established a prima facie case of crime-fraud based on independent, non-privileged evidence, the district court rejected the Corporation's request for in camera review of the individual attorney-client communications and granted the government's motion to compel production of all the subpoenaed documents.

On appeal, the panel recognized that, while "the attorney-client privilege is 'arguably most fundamental of the common law privileges recognized under Federal Rule of Evidence 501,' it is 'not absolute.'" See In re Napster, 479 F.3d at 1090, abrogated in part on other grounds by Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).

The panel applied a two-part test to invoke the crime-fraud exception to attorney-client privilege: "First, the party must show that the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme. Second, it must demonstrate that the attorney-client communications for which production is sought are sufficiently related to and were made in furtherance of [the] intended, or present, continuing illegality." Citing In re Grand Jury Proceedings, 87 F.3d 377, 381-83 (9th Cir. 1996).
\
The panel ruled that the existence of a prima facie case satisfies only the first step of the crime-fraud inquiry. On the second step, the Government will have to also provide information to determine "whether the attorney-client communications for which production is sough are 'sufficiently related to' and were made 'in furtherance of the intended, or present, continuing illegality.'" In re Napster, 479 F.3d at 1090.

As to the first step, the panel agreed with the district court that district courts may find a prima facie case of crime-fraud either by examining privileged material in camera or by examining independent, nonprivileged evidence. As to the second step, the panel, noting an absence of Ninth Circuit published opinions on point, adopted the Sixth Circuit's approach: "While in camera review 'could . . . assist[ ] the court in determining whether a prima facie violation had been made' (step one), in camera review 'is mandated to determine the scope of the order,' i.e. 'to determine whether [the documents] reflect communications or work product made in furtherance of a contemplated or ongoing' crime-fraud (step two)." Citing In re Antitrust Grand Jury, 805 F.2d 155, 168 - 69 (6th Cir. 1986).

Accordingly, the panel concluded that an in camera review was not necessary to establish the prima facie case; however, on remand,"[the] district court must examine the individual documents themselves to determine that the specific attorney-client communications and documents for which production is sought are "'sufficiently related to' and were made 'in furtherance of the intended, or present, continuing illegality,'" by doing so, making the scope of production of documents more specific and possibly narrower. See In re Napster, 479 F.3d at 1090.

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/14/15-50450.pdf

Panel: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and George Caram Steeh III, Senior District Judge.

Argument Date: December 7, 2015

Date of Issued Opinion: January 14, 2016

Docket Number: 15-50450

Decided: Vacated and Remanded

Case Alert Author: David Erghelegiu

Counsel: Robert A. Kashfian, Ryan D. Kashfian (argued), Kashfian & Kashfian LLP, Century City, California, for Respondents Appellant. Robert J. Rice, Los Angeles, California, for Respondent Appellant.

Kristen A. Williams, Evan J. Davis, Assistant United States Attorneys, Major Frauds Section; Consuelo S. Woodhead (argued), Assistant United States Attorney, Criminal Appeals Section, Los Angeles, California, for Plaintiff-Appellee.

Author of Opinion: Judge Ronald M. Gould

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/16/2016 06:12 PM     9th Circuit     Comments (0)  

March 7, 2016
  Sixth Circuit -- Bad-faith Chapter 11 plan not rescued by "friendly" creditors' approval
Case: In re Village Green I -- Sixth Circuit

Area of law: Bankruptcy; Chapter 11 Reorganization

Issue presented: Can a Chapter 11 reorganization plan proposed in bad faith be confirmed based on votes of "friendly" creditors?

Brief summary: For a bankruptcy court to approve a reorganization plan under Chapter 11 of the Bankruptcy Code, the debtor must propose the plan in good faith, and at least one class of creditors whose interests are impaired by the plan must vote to accept it. Here, the only creditors who voted in favor of the bankruptcy debtor's plan were its own former lawyer and accountant, to whom the debtors owed less than $2,400, and whose interests were impaired only because they'd receive the unpaid balance over 60 days, rather than up front. The bankruptcy court approved the plan. The debtor's mortgagor appealed to the district court. The case bounced back and forth between the bankruptcy court and the district court, with the district court finding that this arrangement was merely a way to get around the Code's good-faith requirement. The bankruptcy court dismissed the case, and the debtor appealed. The Sixth Circuit affirmed.

Extended summary: The debtor, who owed a mortgagor $8.6 million for the purchase of an apartment building, filed for bankruptcy under Chapter 11 of the Bankruptcy Code. The bankruptcy court stayed any creditor action against the debtor and held up foreclosure proceedings. The building was the only asset in the bankruptcy. Apart from the mortgage, the debtor's only creditors were its former lawyer and accountant.

The debtor's proposed reorganization plan included paying down the mortgagor's claim relatively slowly, leaving a balance of $6.6 million after 10 years. If the mortgagor foreclosed, however, the balance would immediately drop to $3.2 million. The plan would also remove several protections found in the loan agreements, including the requirement that the debtor properly maintain the building and obtain adequate insurance for it. Finally, though the debtor would pay the minor claims of the accountant and lawyer in full, it would do so in two payments over 60 days.

That 60-day delay in paying the accountant and lawyer, the bankruptcy court held, meant that their minor claims were "impaired" under the plan. That qualification, in turn, meant that acceptance by the lawyer or accountant alone would satisfy the requirement that "at least one class of claims that is impaired under the plan has accepted the plan." The bankruptcy court thus confirmed the plan. The mortgagor appealed to the district court, which remanded the case to bankruptcy court on two occasions. Finally, the bankruptcy court dismissed the case and lifted the automatic stay.

The Sixth Circuit noted that two of the bankruptcy court's decisions were at issue. The first was whether the lawyer's and accountant's minor claims were "impaired" under the Bankruptcy Code. A claim is impaired under a plan if it alters "the legal, equitable, and contractual rights to which such claim or interest entitles the holder of such claim or interest." Here, the plan altered the minor claimants' rights because they were legally entitled to payment immediately rather than in two installments over 60 days. Although the alteration appeared trivial, the Sixth Circuit agreed that these claims technically did qualify as "impaired."

The Sixth Circuit then considered whether the debtor's plan was proposed in good faith. First, it found no reason for the 60-day payment plan on the minor claims given the debtor's monthly net income from apartment rentals. Second, it noted that the former lawyer and accountant were closely allied with the debtor. In fact, when the mortgagor sought to pay the minor claimants up front - by tendering each of them checks for full payment of their claims - they refused to accept payment. This compounded the appearance that the debtor was acting in bad faith by trying to circumvent the Code with the help of its former lawyer and accountant. Therefore, the Sixth Circuit held that the reorganization plan was not made in good faith, affirming the district court.

Panel: Circuit Judges Ralph B. Guy, Karen N. Moore, and Raymond M. Kethledge

Date of issued opinion: January 27, 2016

Docket number: 14-6521

Decided: Affirmed

Counsel: ARGUED: John L. Ryder, HARRIS SHELTON HANOVER WALSH, P.L.L.C., Memphis, Tennessee, for Appellant. Daniel H. Slate, BUCHALTER NEMER, Los Angeles, California, for Appellee. ON BRIEF: John L. Ryder, Michael F. Rafferty, HARRIS SHELTON HANOVER WALSH, P.L.L.C., Memphis, Tennessee, for Appellant. Daniel H. Slate, BUCHALTER NEMER, Los Angeles, California, Mark Warren Bailey, Jr., HUSCH BLACKWELL, LLP, Memphis, Tennessee, for Appellee.
Author of opinion: Circuit Judge, Raymond M. Kethledge

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0018p-06.pdf

    Posted By: Mark Cooney @ 03/07/2016 03:16 PM     6th Circuit     Comments (0)  

  United States v. Berry -- Fourth Circuit
Fourth Circuit Joins Tenth to Announce: No Need for Circumstance-Specific Evaluation when Categorical Evaluation Holds Up

Areas of Law: Criminal Procedure

Issue Presented: Whether the district court erred in using a circumstance-specific approach rather than a categorical approach to conclude that Berry's past convictions justified his Tier III designation.

Brief Summary: Defendant Berry was convicted of a sex offense and, therefore, was required to register under the federal Sex Offender Registration and Notification Act (SORNA). Berry failed to register and pled guilty to a violation of 18 U.S.C. § 2250(a), which is a failure to register statute. At sentencing, the district court calculated Berry's Sentencing Guidelines (Guidelines) range as if Berry were a Tier III sex offender. The United States Court of Appeals for the Fourth Circuit compared Berry's sex offense with what constitutes a Tier III offense and disagreed with the district court, vacating Berry's sentence and remanding the case to the district court to properly determine Berry's tier classification in order to impose a sentence.

Detailed Summary: In 2002, Defendant Brian Keith Berry pled guilty in New Jersey state court to endangering the welfare of a child. Berry was convicted of a sex offense and, therefore, was required to register under SORNA. After release from prison, Berry was told to register with the New Jersey police. He complied with the requirement and provided law enforcement with a New Brunswick address. However, in March 2013, police discovered that Berry no longer resided at the New Brunswick address and subsequently issued a warrant for his arrest for violating the conditions of his parole. Berry was found in North Carolina where he admitted to failing to register. At trial, Berry pled guilty to violating 18 U.S.C. § 2250(a) and the district court found Berry to be a Tier III sex offender with a corresponding base offense level of 16. The district court's finding was based on a description of the conduct underlying Berry's prior sex offense, which was "penetrating the vagina of a five-year-old victim with his hand." The district court found this conduct was comparable to the offense of abusive sexual conduct against a minor who has not yet attained 13 years of age, which falls under the Tier III definition. Based on the analysis and the Tier III designation, the district court sentenced Berry to 33 months in prison and 5 years of supervised release. This timely appeal stems from the district court's sentencing because Berry did not believe he should have been sentenced as a Tier III sex offender.

The Fourth Circuit began its analysis with the requirement for sex offenders to register and the penalties when offenders do not follow through with such requirement. SORNA classifies sex offenders into three tiers based on the sex offender's underlying sex offense. The court then explained that Tier II and Tier III designations are for more serious sex offenses and Tier I is a catch-all provision for all other sex offenses. To determine a defendant's tier classification, courts must compare the defendant's prior sex offense conviction with the offenses listed in the tier definitions. Courts have three analytical frameworks they can use to make this comparison: (1) the categorical approach; (2) the modified categorical approach; and (3) the circumstance-specific approach. The categorical approach focuses solely on the relevant offenses' elements by comparing the elements of the prior offense of conviction with the elements of the federal offense. If the elements of the prior offense are the same as or narrower than the offense listed in the federal statute, there is a categorical match. But, if the elements of the prior conviction sweep more broadly to the point that there is a realistic probability that the statute defining the offense of the prior conviction encompasses conduct outside the offense enumerated in the federal statute, the prior offense is not a match. The modified categorical approach serves as a tool for implementing the categorical approach where the defendant's prior conviction is for violating a statute that sets out one or more elements of the offense in the alternative. This approach allows the court to look through a limited number of documents to determine which alternative formed the basis of the defendant's prior conviction. Once the elements are identified, the court does not look at any other documents and continues with the categorical approach. Finally, the circumstance-specific approach focuses on the circumstances underlying the defendant's prior conviction, not the elements of the offense.

The Fourth Circuit acknowledged that the Tenth Circuit recently considered which approach is best for analyzing the Tier III definition. The Tenth Circuit held that the categorical approach is best and the Fourth Circuit agreed. The Fourth Circuit explained that when a federal statute refers to a generic offense, SORNA's definition demonstrates that Congress' intent is to have the categorical approach apply. On the other hand, when the federal statute refers to specific conduct or factual circumstances, SORNA's definition demonstrates that Congress' intent is to have the circumstance-specific approach apply.

Here, a Tier III sex offender is defined under 42 U.S.C. 16911(4) as "a sex offender whose offense is punishable by imprisonment for more than 1 year and - (A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense: (i) aggravated sexual abuse or sexual abuse (as describe in sections 2241 and 2242 of this title 18); or (ii) abusive sexual contact (as described in section 2244 of title 18) against a minor who has not attained the age of 13 years." The Fourth Circuit applied the Tenth Circuit's analysis and explained that a reference to a specific Criminal Code section suggests a generic offense with a straightforward element test, requiring the categorical approach. In the instant case, the references to "aggravated sexual abuse" or "sexual abuse" are examples of straightforward element tests where the categorical approach applies.

However, the court explained when there is a reference to an act that has a number of alternative elements or a reference to a description rather than an element, the courts need to consider the specific circumstances encompassing the criminal conduct because there is not a straightforward element test or analysis to classify the act. For example, here, the statute referring to "more severe than abusive sexual conduct" and "a minor who has not attained the age of 13 years" are examples where the circumstance-specific approach applies.

The Fourth Circuit agreed with the Tenth Circuit and explained that language in 42 U.S.C. 16911(4) instructs courts to apply the categorical approach when comparing prior convictions with the generic offenses listed. However, the Fourth Circuit and the Tenth Circuit, made an exception to this standard when it comes to the specific circumstance of a victim's age. The Fourth Circuit also held that a similar approach should be taken with Tier II designations.

Next, the Fourth Circuit mentioned the Supreme Court's avoidance of the circumstance-specific approach because it leads to various difficulties and requires examining evidence to discover the specific circumstances of past convictions. This re-evaluation of various pieces of evidence may lead to several "mini-trials" and the United States Supreme Court frowns upon this approach. The Fourth Circuit mentioned that evaluating a victim's age is straightforward and requires inquiry into only one fact. Therefore, the Fourth Circuit explained, the categorical approach is the proper approach to review the SORNA Tier III definition and looking into the victim's age would be an exception.

The Fourth Circuit applied its decision to use the categorical approach in considering whether a defendant's prior conviction is a Tier III sex offense under 42 U.S.C. 16911(4)(A) and to look at the specific circumstances for the victim's age to Berry's particular issues. Here, in 2002, Berry violated the New Jersey Statute § 2C:24 - 4(a). At the time of conviction, the statute held "[a]ny person...who engaged in sexual conduct...or who causes the child harm... is guilty of a crime of the third degree." The New Jersey Supreme Court has ruled, in a multitude of cases, that an offender may violate the New Jersey Statute § 2C:24 - 4(a) by both physical and non-physical means such as deprivation of sufficient food or repeatedly appearing nude in front of a window; whereas, a Tier III designation requires a defendant to have engaged in or attempted physical contact with the victim. Therefore, because the New Jersey statute encompasses a much broader interpretation of sexual conduct than the Tier III definition, the Fourth Circuit believed Berry's Tier III designation was improper. The Fourth Circuit vacated Berry's sentenced and remanded the case for the district court to apply the proper tier classification, calculate the corresponding Guideline, and impose a proper sentence.

To read the full text of this opinion, please click here.

Panel: Judges Wilkinson, King, and Wynn

Argument Date: 12/10/2015

Date of Issued Opinion: 02/19/2016

Docket Number: No. 14-4934

Decided: Vacated and remanded by published opinion.

Case Alert Author:
Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Thomas P. McNamara, Federal Public Defender, Jennifer C. Leisten, Research & Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Amicus Curiae.

Author of Opinion:
Judge Wynn

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/07/2016 01:01 PM     4th Circuit     Comments (0)  

March 5, 2016
  In re Sanofi Sec. Litig., AG Funds, L.P. v. Sanofi - Second Circuit
Headline: Second Circuit Holds Pharmaceutical Companies' Opinions About Drug's Likely FDA Approval Are Not Actionable Under New Federal Securities Laws Standards Laid Out By Supreme Court's Recent Omnicare Decision.

Area of Law: Securities Law

Issue(s) Presented: Whether the district court correctly dismissed plaintiffs' securities claims for failure to plead a material misstatement or omission under the standard recently articulated by the Supreme Court in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund.

Brief Summary: The defendants, pharmaceutical company Sanofi, along with its predecessor and three company executives, were sued for allegedly issuing materially false or misleading statements regarding the breakthrough drug, Lemtrada, designed to treat multiple sclerosis ("MS"). The consolidated plaintiffs, individual and corporate stockholders that invested and purchased contingent value rights ("CVRs"), were entitled to cash payouts upon achievement of certain "milestones" connected to the success of Lemtrada. One important milestone, that was not met, was obtaining U.S. Food and Drug Administration ("FDA") approval for Lemtrada by March 31, 2014. The plaintiffs alleged that because the defendants failed to disclose the FDA's concerned feedback regarding the use of only single-blind studies to test Lemtrada, the defendants misled investors as to the likelihood of meeting the "milestones," upon which the CVRs value partially depended, thereby artificially inflating the value of the CVRs. The plaintiffs argued defendants false or misleading statements violated several provisions of the Securities Exchange Act of 1934, the Securities Act of 1933, and state blue sky laws. The defendants moved to dismiss the consolidated complaints for failure to state a claim and the United States District Court for the Southern District of New York granted the defendants' motion.

On appeal, the Second Circuit affirmed, examining the allegations under the recent United States Supreme Court decision, Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, which refined the standard for analyzing whether a statement of opinion is materially misleading. Recognizing that the new U.S. Supreme Court precedent disturbed previous Second Circuit precedent, the Second Circuit still found that plaintiffs failed to allege that defendants made materially misleading statements of opinion and affirmed dismissal of plaintiffs' complaints for failure to state a claim.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...e3deaf9f0f0/2/hilite/

Extended Summary:
Lemtrada, a drug currently owned by the pharmaceutical company Sanofi, has long shown great potential as a treatment for victims of multiple sclerosis ("MS"). Lemtrada has a unique treatment cycle that requires only two annual treatment courses rather than traditional MS treatments which require a daily or weekly dosing regimen. In part, because of Lemtrada's unique treatment design, it was only clinically tested with a single‐blind study, rather than a double-blind study. During a single‐blind study, either the researcher or the patient does not know which drug was administered. By contrast, during a double‐blind study, neither the patient nor the researcher knows which drug was administered. At least as far back as 2002, when Lemtrada was then-owned by the pharmaceutical company Genzyme, the FDA expressed concern about the use of only single‐blind studies for the drug. However, the FDA also stated in various opinions that single-blind studies might be adequate to support approval for the drug if the effect is large.

In 2010 when Sanofi began to acquire Genzyme, the two companies could not agree on a value for Lemtrada. Sanofi ultimately issue contingent value rights ("CVRs") to Genzyme shareholders as part of the acquisition. The CVRs entitled investors and holders to cash payments upon the achievement of certain "milestones" connected to the success of Lemtrada, such as obtaining FDA approval for the drug by March 31, 2014. Following its acquisition of Genzyme, Sanofi continued to speak optimistically about, and make statements endorsing the effectiveness of, Lemtrada. However, the FDA rejected Lemtrada's initial application in 2013, and the value of the CVRs significantly decreased. The drug was ultimately approved by the FDA, but not until November, 2014, well after the "milestone" deadline. The plaintiffs, individuals and corporations that invested and purchased CVRs, subsequently sued for violations of §§ 10(b), 18, and 20(1) of the Securities Exchange Act of 1934, §§ 11 and 12 of the Securities Act of 1933 and state blue sky laws, alleging defendants' issued materially false or misleading statements or omissions regarding Lemtrada.

In its opinion, the Second Circuit affirmed the conclusions of the district court, and its dismissal of the plaintiffs' complaints for failure to state a claim. However, the Second Circuit wrote to principally examine the impact of the U.S. Supreme Court's recent intervening decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 135 S. Ct. 1318 (2015), which was decided after the district court rendered its decision and refined the Second Circuit's own standard for analyzing whether a statement of opinion is materially misleading under Fait v. Regions Financial Corp., 655 F.3d 105 (2d Cir. 2011). The new standard under Omnicare requires that opinions, though sincerely held and otherwise true as a matter of fact, may nonetheless be actionable if the speaker omits information whose omission makes the statement misleading to a reasonable investor. Under this new standard, the core inquiry is whether the omitted facts would conflict with what a reasonable investor would take from the statement itself.

Applying Omnicare to three specific groups of statements of opinion made by defendants, that the district court originally reviewed, the Second Circuit found that the plaintiffs still failed to allege that defendants made materially misleading statements of opinion. The first set of statements related to Sanofi's expectation that the FDA would approve Lemtrada before the "milestone" deadline. The second and third set of statements related to Sonofi's statements optimistically speaking about, and endorsing the effectiveness of, Lemtrada.

As to the first statement of opinion, the Second Circuit firstly found that defendant's optimism about the approval of Lemtrada was not in conflict with the FDA's concerned comments, which indeed indicated that Lemtrada could be approved if it demonstrated an extremely large effect. The record reflected that Lemtrada's treatment was, in fact, large. Secondly, the Second Circuit found Omnicare does not impose liability for a failure to disclose information that runs counter to an expressed opinion, and stated the defendants were not required to disclose all FDA information cutting against their studies.

As to the remaining statements, the Second Circuit found that generalized statements of subjective optimism do not convey facts about how the issuer has formed an opinion and are not actionable. The court reasoned that no reasonable investor would have inferred that the defendants' issued statements of confidence would suggest that the FDA had not engaged in industry‐standard dialogue about potential deficiencies in either the testing methodology or the drug itself. The Second Circuit concluded that, at bottom, there was an absence of plausible allegations showing a conflict between defendants' statements and the FDA's concerned feedback. Rather, the plaintiffs' allegations regarding defendants' opinions about the Lemtrada results were little more than an argument about the proper interpretation of data, something that the Second Circuit has rejected as a basis for liability. The Second Circuit thus affirmed the decision of the district court under the new standards of Omnicare, finding that not only does securities law not impose an obligation to disclose every piece of information in defendants' possession, but that the plaintiffs' in this case were sophisticated investors who could not claim they were misled by optimistic issued statements regarding the approval and launch of Lemtrada.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...e3deaf9f0f0/2/hilite/

Panel: Circuit Judges Parker, Lohier, and Carney

Argument Date: October 7, 2015

Date of Issued Opinion: March 4, 2016

Docket Number:
15‐588‐cv; 15‐623‐cv

Decided: Affirmed

Case Alert Author: Brad Landau

Counsel: Christopher L. Nelson (James M. Ficaro, Brett D. Stecker, on the brief), The Weiser Law Firm, P.C., Berwyn, PA, Daniella Quitt, Harwood Feffer LLP, New York, NY, on the brief, for Plaintiffs‐Appellants Gen. Partner Glenn Tongue, Deerhaven Capital Management; John B. Orenstein (Harry N. Niska, on the brief), Ross Orenstein & Baudry LLC, Minneapolis, MN, for Plaintiffs‐Appellants AG Funds, L.P. et al.; John Neuwirth (Joshua S. Amsel, Caroline Hickey Zalka, Justin D. D'Aloia, on the brief), Weil, Gotshal & Manges LLP, New York, NY, for Defendants‐Appellees.

Author of Opinion: Circuit Judge Parker

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 03/05/2016 05:40 PM     2nd Circuit     Comments (0)  

  American Freedom v. Metropolitan Transportation Authority
Headline: Second Circuit Affirms That American Freedom Defense Initiative Must File New Complaint to Challenge Metropolitan Transportation Authority's Advertising Standards for New York City Subways and Buses

Area of Law:
Constitutional

Issue(s) Presented: Whether the MTA's adoption of new advertising standards for subways and buses rendered the plaintiffs-appellants' previous First Amendment challenge moot.

Brief Summary: American Freedom Defense Initiative (AFDI), a pro-Israel advocacy organization known for its criticism of Islam, sought to purchase an advertisement for display on the back of MTA buses. The advertisement depicted a "menacing-looking man" whose face and head were largely covered by a head scarf; it included a quotation stating that "Killing Jews is Worship that draws us close to Allah" and then said "That's His Jihad. What's yours?" The MTA refused to display it, citing its policy barring the display of any advertisement reasonably likely to incite violence. AFDI filed suit in the United States District Court for the Southern District of New York, alleging a First Amendment violation. The district court granted AFDI's motion for a preliminary injunction, explaining that although it was not striking down the entire policy, the policy could not be enforced against the ad in question. The MTA subsequently amended its advertising standards, stating that it would no longer allow advertisements that were "political in nature." It then informed AFDI that, under this new policy, it would not display the ad. The district court dissolved the prior injunction, on grounds that it was now moot in light of the policy change, and AFDI appealed. The Second Circuit affirmed, explaining that the MTA's conduct had changed the basis of what the AFDI was now disputing. If AFDI wants to challenge these new advertising standards, it must file an amended complaint.

Extended Summary (if applicable): The Metropolitan Transportation Authority (MTA) accepts paid advertisements to be displayed on its subways and buses. In the past, the MTA had accepted both commercial and non-commercial advertisements, excluding only those advertisements that fall within certain discrete categories, such as, for example, misleading advertisements, advertisements promoting unlawful activity, obscene advertisements, and advertisements expected to incite violence. American Freedom Defense Initiative (AFDI), a pro-Israel advocacy organization known for its criticism of Islam, submitted an advertisement for display on the back of MTA buses. According to the district court, the advertisement portrayed a "menacing-looking man whose head and face are mostly covered by a head scarf. The advertisement included a quote from 'Hamas MTV': 'Killing Jews is Worship that draws us close to Allah.' Underneath the quote, the ad stated: 'That's His Jihad. What's yours?' The bottom of the advertisement included a disclaimer that it was sponsored by [ADFI], and did not imply the MTA's endorsement of the views expressed by the ad." The MTA refused to display the advertisement by using its provision against displaying any advertisements reasonably likely to incite violence.

AFDI filed suit against the MTA in the United States District Court for the Southern District of New York, claiming that the application of the incitement prohibition to the advertisement violated the First Amendment, and moved for a preliminary injunction. The district court granted the motion, enjoining the enforcement of the incitement prohibition as to the advertisement in question, rather than striking down the whole standard. The court stayed the effectiveness of the injunction for 30 days. While the stay was in effect, the MTA's Board of Directors voted to amend the MTA's advertising standards to include a prohibition on any advertisement that is "political in nature." After the new standards were approved, the MTA informed AFDI that it would not display the advertisement because it violated this new prohibition. The MTA then moved to dissolve the preliminary injunction, arguing that the claim on which it rested was moot in light of the change to the MTA's advertising standards. The district court granted the motion.

AFDI appealed, and the Second Circuit reviewed whether the district court abused its discretion in granting the motion. AFDI argued that the MTA had failed to satisfy the test for mootness because the new advertising policy was just as unconstitutional as the one already enjoined. However, the Second Circuit affirmed the district court's judgment because the MTA had altered its conduct in a manner sufficient to present a fundamentally different controversy, and AFDI was not suffering an ongoing harm from the MTA's initial rejection of the advertisement under the old standard. The AFDI may challenge the MTA's new advertising standards, but it must do so by filing an amended complaint. To read the full opinion, please visit: http://www.ca2.uscourts.gov/de.../1/doc/15-1997_opn.pdf

Panel: Circuit Judges Katzmann and Kearse; District Judge Schofield, sitting by designation

Argument Date: 1/15/2016

Argument Location: New York, NY

Date of Issued Opinion: 3/3/2016

Docket Number: No. 15-1997

Decided: Affirmed

Case Alert Author: Nigyar Alieva

Counsel: David Yerushalmi, American Freedom Law Center, for Plaintiff-Appellants; Victor A. Kovner, Davis Wright Tremaine LLP for Defendant-Appellees

Author of Opinion: Per Curiam

Circuit: Second Circuit

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 03/05/2016 04:13 PM     2nd Circuit     Comments (0)  

March 3, 2016
  National Parks Conservation Association v. U.S. Environmental Protection Agency - Eighth Circuit
Headline Eighth Circuit panel denies petition for review of EPA approval of Minnesota haze plan

Area of Law Environmental Law

Issue(s) Presented Whether the Environmental Protection Agency (EPA) properly approved the Minnesota Regional Haze State Implementation Plan.

Brief Summary Six environmental conservation organizations petitioned the Eighth Circuit for review of the EPA's decision to approve the Minnesota Regional Haze State Implementation Plan (the Minnesota Plan). The Plan is designed to improve natural visibility in the Boundary Waters Canoe Area Wilderness and Voyageurs National Park, both in Minnesota.

In keeping with the national goal of improving natural visibility in certain areas, such as national parks, states must revise their environmental plans to include measures necessary to achieve reasonable progress towards the visibility goal. One way states may do this is by requiring major stationary air pollutant emitters to install and operate best available retrofit technology (BART) to reduce their emissions. This requires a determination of what constitutes BART for each stationary pollution source. Another way states may revise their environmental plans is by adopting the EPA's alternative to BART, commonly called the Transport Rule. The EPA has generally determined that the Transport Rule is "better than BART" because it achieves greater reasonable progress towards achieving natural visibility conditions in national parks and other covered areas. 77 Fed. Reg. 33,642, 33,648 (June 7, 2012). The Transport Rule allows states it covers to use an emissions trading program instead of BART.

The Minnesota Plan relied on participation in the Transport Rule emissions trading programs instead of adopting source-specific BART. The EPA approved the plan. Six conversation groups petitioned for review, arguing that source-specific BART may achieve better results in Minnesota, and also questioning Minnesota's reasonable progress goals. After determining that it had jurisdiction over the matter, the Eighth Circuit noted that the EPA's approval of the plan can only be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Sierra Club v. EPA, 252 F.3d 943, 947 (8th Cir. 2001). In this case, the EPA conducted a technical analysis to determine the effectiveness of the Transport Rule, and relied on that analysis and two national rulings on the subject in approving the Minnesota Plan. The EPA also determined that Minnesota had adequately demonstrated that its progress goals were reasonable. The Eighth Circuit panel held that the EPA's decision to approve the Minnesota Plan was rational, followed a defensible approval process, and was not arbitrary and capricious.

Circuit Judge Bye concurred in the result, concluding that the Eighth Circuit lacked jurisdiction to the extent the conservation organizations claim that source-specific BART is better than the Transport Rule as applied to the Minnesota Plan.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/01/122910P.pdf

Panel Chief Judge Riley, Circuit Judges Benton and Bye

Date of Issued Opinion January 21, 2016

Decided Petition for review denied

Docket Number 12-2910, 12-3481

Counsel Janette K. Brimmer for the Petitioners and Norman Louis Rave, Jr. for the Respondents

Author Circuit Judge Benton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 03/03/2016 09:57 AM     8th Circuit     Comments (0)  

March 1, 2016
  Sixth Circuit -- Eviction Notice Need Not Advise Tenant of Appeals Process
Case: Gardner v. Evans -- Sixth Circuit

Headline: Sixth Circuit holds that eviction notices need not contain language advising tenants of appeals process to be constitutional.

Area of law: Landlord-Tenant Law; Eviction; Constitutional Law

Issue presented: Are city inspectors immune from a suit alleging constitutionally unsound eviction notices when the notices did not tell tenants how to pursue a timely appeal?

Brief summary: Eight tenants received notices of eviction for alleged violations to the Lansing Housing and Premises Code. The notices were left at each home on a "red-tag," which did not include any information about the tenant's right to appeal the inspector's decision and obtain an administrative hearing. Unaware of this option, none of the tenants filed an appeal within the 20-day period. Thus, they all waived their right to an administrative review. The tenants sued, alleging that the lack of appeal-process information on the eviction notices was unconstitutional. The inspectors claimed qualified immunity, but the district court rejected their defense. The Sixth Circuit reversed, holding that there is no established requirement to notify tenants of the appeals process.

Extended summary: Eight tenants were evicted from their homes for alleged violations of the Lansing Housing and Premises Code. In each instance, after the inspector had gone through the home, he summarized his findings in an eviction "red-tag" notice form, which he gave to the tenant. Each red-tag form was filled out as specified by the Code, but none indicated that if an evicted tenant failed to appeal within 20 days after receiving the red-tag, the tenant waived the right to administrative review. Unaware of these appeal requirements, none of the tenants filed an appeal within the 20-day period. Thus, they inadvertently waived their right to an administrative review. The tenants sued, claiming that the lack of notice of the appeals process made their evictions unconstitutional. The inspectors claimed qualified immunity. The district court denied the inspectors' motion for summary judgment based on qualified immunity, and the inspectors appealed.

In determining whether the inspectors were entitled to qualified immunity, the Sixth Circuit considered two questions: First, did the inspectors violate a constitutional right? And second, were the contours of that right clearly established? The Sixth Circuit decided that it didn't need to decide the question of whether a constitutional right was violated because the tenants could not show a clearly established right. The court noted that while the requirement of who is to be given notice has been clearly established by previous caselaw, there is no clarity on the requirement for providing notice of the appeals process. The court noted that both the Supreme Court and other circuits have specifically found that no such requirement exists, finding that tenants have other ways to obtain this information, including the phone numbers found on the eviction notices and readily available public codes. The Sixth Circuit reasoned that based on the availability of this information, it was not unreasonable for the inspectors to believe that their actions were constitutional. Accordingly, the court reversed, holding that the inspectors enjoyed qualified immunity.

Panel: Circuit Judges, Alice M. Batchelder, and Richard A. Griffin; and District Judge, James G. Carr.

Date of issued opinion: February 4, 2016


Docket number: 15-1200

Decided: Reversed and Remanded.

Counsel: ARGUED: F. Joseph Abood, OFFICE OF THE CITY ATTORNEY, Lansing, Michigan, for Appellants. J. Nicholas Bostic, Lansing, Michigan, for Appellees. ON BRIEF: Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellants. J. Nicholas Bostic, Lansing, Michigan, for Appellees.

Author of opinion: ALICE M. BATCHELDER, Circuit Judge

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0023p-06.pdf

Edited: 03/07/2016 at 02:43 PM by Mark Cooney

    Posted By: Mark Cooney @ 03/01/2016 02:36 PM     6th Circuit     Comments (0)  

  I.R. v. Los Angeles Unified School District - Ninth District
Headline: When a parent does not consent to a component of a special education program, school districts must expeditiously initiate a due process hearing.

Area of Law: Individuals with Disabilities Education Act

Issues Presented: Is a school district's duty to initiate a due process hearing triggered when a parent does not consent to a component of a special education program that is deemed necessary to provide a Free Appropriate Public Education ("FAPE") if the school district continues to work with the parents on an Individualized Education Program ("IEP")?

How long is too long for a school district to determine a component's necessity and initiate a due process hearing?

Significance: This case is binding precedent and applicable to all California educational agencies required to offer and provide a Fair PE. It may be prudent for School Districts to internally review IEP's with contested components and assess whether it must initiate a due process hearing.

Brief Summary: A mother consented to some components of an IEP and objected to other components. Over a course of two years, while the child remained in an inappropriate placement, LAUSD continued to meet with the child's mother in an effort to find a solution both parties could agree to. LAUSD contended that because of its continued efforts, its duty to initiate a due process hearing had not yet been triggered. The Administrative Law Judge (ALJ) that conducted the due process hearing agreed and then the District Court affirmed. The Ninth Circuit panel carefully reviewed the statutory schemes which the lower courts relied and held that the lower courts acted in error by failing to initiate a due process hearing.

Extended Summary: In 2006, at the request of the child's mother, the Los Angeles Unified School District ("LAUSD") found a child to be eligible for a special education because of "autistic-like" behaviors and an initial Individualized Education Program (IEP) meeting was held. However, the mother opted to place the child in private preschool, where the child remained through first grade.

In 2010, the mother sought to enroll the child into a public elementary school within the LAUSD. It was at this time that the Mother consented to some components of the August 2006 IEP, but not to others. In November 2010, LAUSD prepared another IEP recommending the child's placement in a special education environment at the public school. Mother objected in writing and notified LAUSD that she wanted a general education placement for the child with a one-on-one aide. LAUSD implemented only those components the Mother consented to. Between November 2010 and February 2012, several IEP meetings were held and all recommended the child's placement in a special education placement.

On May 29, 2012, Mother filed a request for a due process hearing. The Administrative Law Judge ("ALJ") conducting the hearing concluded that LAUSD did offer an appropriate program for the child and thus offered the child a FAPE. Although LAUSD acknowledged it failed to provide a FAPE and the ALJ acknowledged that California Education Code § 56346(f) required a school district to initiate a due process hearing when a parent did not consent to a component necessary to provide a FAPE, the ALJ did not hold the LAUSED liable. The ALJ concluded that the Mother's refusal to consent to the contested components precluded LAUSD from implementing and providing a FAPE.

Mother appealed to the district court. District Court affirmed the ALJ's decision on the grounds that (1) LAUSD acknowledged that the child had not been provided with a FAPE during the second and third grade, and (2) the Mother acknowledged that LAUSD had offered an appropriate program. In response to the LAUSD's failure to initiate a due process hearing, the district court held that 20 U.S.C. § 1414 precluded LAUSD from (1) initiating a due process hearing, and (2) being held liable for its failure to provide a FAPE.

Mother appealed to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit concluded the district court erred in its interpretation of the applicable statutes. The district court had relied on 20 U.S.C. § 1414(a)(1)(D)(ii)(II), which provides that if a parent refuses to consent to services under clause (i)(II), before a district provides special education and related services to a child, a local educational agency shall not provide the services by utilizing the procedures described in 20 U.S.C. § 1415. Section 1415 grants school districts the power to initiate a due process hearing. After a close examination of the statutory scheme, the Ninth Circuit held that the school district was prevented from initiating a due process hearing only where a parent has refused consent before the initial provision of special education and related services. The court held that the statute did not apply in situations where a parent consented to the program, but only objected to specific components of the IEP.

The next issue before the Ninth Circuit was whether LAUSD's duty to initiate a due process hearing had been triggered. LAUSD argued that because it was holding IEP meetings in an effort to work with the child's parents, the duty had not been triggered. The Ninth Circuit panel held under California Education Code § 56346(f), the duty is immediately triggered at the moment a school district determines a disputed component is necessary to provide a FAPE. Thus, LAUSD's duty to initiate a due process hearing had been triggered.

The last issue the Ninth Circuit addressed was the length of time a school district has to initiate the due process hearing after making its determination. The Court held the due process hearing should be initiated expeditiously, but with some flexibility to give parents an opportunity to weigh the pros and cons of the proposed program. The court explained that it is ultimately up to a fact finder to decide what a reasonable amount of time is.

The Ninth Circuit found because LAUSD failed to initiate a due process hearing, as required under California law, it could be held liable for denying the child a FAPE for an unreasonably prolonged period that resulted in the child's two-year loss of an educational opportunity and deprivation of educational benefits.

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/17/13-56211.pdf

Panel: Miranda Du, District Judge sitting by designation, Stephen Reinhardt and Richard R. Clifton, Circuit Judges.

Argument Date: July 10, 2015

Date of Issued Opinion: November 17, 2015

Docket Number: No. 13-56211

Decided: Reversed and remanded.

Case Alert Author: Melissa A. Padilla

Counsel: Jennifer Guze Campbell, Vanessa Jarvis (argued), Special Education Law Firm, APC, Lakewood, California, for Plaintiff-Appellant.

David Holmquist, Diane H. Pappas, Patrick J. Balucan (argued), Office of General Counsel, Los Angeles, California, for Defendant-Appellee.

Author of Opinion: Hon. Miranda M. Du

Circuit: Ninth

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 03/01/2016 01:06 PM     9th Circuit     Comments (0)  

  Carlos Alberto Bringas-Rodriguez, aka Patricio Iron - Rodriguez, Petitioner, v. Loretta E. Lynch, Atty Gen - 9th Circuit
Headline: Ninth Circuit affirms denial of Petitioner's application for asylum, withholding of removal and protection under the Covenant Against Torture, despite his recent HIV diagnosis due to years of physical and sexual abuse as a child in Mexico.

Area of Law: Immigration Law

Issue Presented: Whether an alien, who was subjected to child abuse and was recently diagnosed with HIV, can meet the evidentiary standards of proof required for asylum and withholding of removal and protection under the Covenant Against Torture.

Brief Summary: Petitioner, a gay man, was subject to years of physical and sexual abuse at the hands of his family members and a neighbor. In February 2012, he filed an application for asylum, withholding of removal and relief under the Covenant Against Torture. He sought review of the Board of Immigration Appeals' previous denial of his applications as well as his motion to remand in light of a recent HIV diagnosis.
The court found that Petitioner was unable to establish either past persecution, a well-founded fear of future persecution in Mexico based on his homosexuality, or that the government was unwilling or unable to protect him. Since he never reported these issues to authorities, the production of State Department country reports to demonstrate how the government would have responded were insufficient. The reports described only one instance of discrimination against or persecution of homosexuals in the country.

In fact, the reports highlighted gay pride marches in cities across the country, described the expansion of marriage equality in Mexico City, and detailed a Mexican Supreme Court ruling which required states to recognize legally performed marriages performed elsewhere. Petitioner's testimony about his friends who relayed their negative experience with police when they reported physical abuse on the basis of their sexual orientation was too vague and failed to connect the general police practices in the state with those of police where Petitioner resided.

Extended Summary: Petitioner, Bringas-Rodrigues was born and raised in Tres Valles, Veracruz, Mexico. Bringas found himself attracted to men by age six and identified himself as homosexual by age ten. As a child his father physically abused him and told him things like "Act like a boy, you're not a woman!" and "Do things a man does." Bringas was later sexually abused by his uncle. The sexual abuse by his uncle began at age four and continued until he was about twelve years old. At age twelve, he moved to the state of Kansas with his mother and stepfather.

Five months later, Bringas returned to Mexico to live with his grandmother because he was troubled over hiding his sexuality and sexual abuse. However, once he returned to Mexico, the abuse continued. This time, his uncle, cousins, and a neighbor raped him. The incidents were never reported to police because Bringas believed any complaint would be futile. He also neglected to tell his family until years later out of fear his abusers would harm his mother or grandmother.

In 2004 when he was fourteen, Bringas returned to Kansas to live with his mother and stepfather in escape of his abusers. In August 2010, he was convicted of "Contributing to the Delinquency of a Minor" in Colorado. Because of this, he spent 90 days in jail where he attempted suicide. DHS filed a Notice to Appear in September 2010.

Procedural History
In February 2012, Bringas filed an application for asylum, withholding of removal, and relief under the Covenant against Torture. He explained that he feared persecution if he returned to Mexico because of his sexual orientation and that police would overlook his complaints. The Immigration Judge denied all applications for relief.

The asylum claim was denied because Bringas did not file within the one-year deadline. His withholding claim was denied because he did not establish that the past persecution was on account of a protected status and never reported. There was also no evidence that the Mexican authorities were unwilling to offer protection. Further, Bringas did not establish the requisite risk of future persecution because he could not demonstrate a more likely than not possibility of persecution on account of his membership in a particular social group of male homosexuals. Lastly, his CAT claim was denied due to insufficient evidence that the government turns a blind eye to allegations of sexual abuse by children. As a result, Bringas could not prove that torture in the future by the government or acquiescence of the government was likely.

The Board of Immigration Appeals ("BIA") affirmed. It denied his asylum claim on the merits and assumed it was timely filed. The BIA concluded that Bringas failed to establish past persecution because (1) he could not show that he was abused on account of a protected ground, and (2) he had not demonstrated that the government was unwilling or unable to control his abusers. The BIA also found that Bringas did not have a well-founded fear of future persecution because he failed to show a pattern or practice of persecution against gays in Mexico. Additionally, it rejected his withholding of removal and CAT claims because Bringas failed to establish the lower burden of proof required for asylum. It followed that he also failed to satisfy the higher standard of proof required for eligibility of withholding removal.

Lastly, the BIA rejected Bringas' argument that his case should be remanded in light of his recent HIV diagnosis because it placed him in an even more vulnerable position should he be returned to Mexico. Bringas failed to establish that he would be unable to obtain treatment for HIV in Mexico, or that lack of access was a problem experienced by homosexuals in particular. He filed a timely Petition for Review of the BIA's dismissal and sought a stay pending review. The Court of Appeals granted the stay and denied the petition for review.

Discussion
On appeal, Bringas argued that the court erred in denying his asylum and withholding of removal claims. The court used a two part approach to determine whether Bringas was eligible for asylum. In order to be eligible an alien must demonstrate either (1) that he is unable or unwilling to return to his home country because of past persecution or (2) a well-founded fear or future persecution on account of his race, religion, nationality, membership in a particular social group or a political opinion. Castro - Martinez v. Holder, 674 F.3d 1073, 1080. The requirements of a withholding claim are similar but require a higher evidentiary standard of proof. For example, an illegal alien must prove a "clear probability" of persecution on account of a protected characteristic. 8 U.S.C. Section 1231 (b)(3)(A). Thus, if a petitioner is unable to establish his eligibility for asylum, his withholding claim also fails.

Past Persecution
The first issue on appeal was whether Bringas established sufficient evidence that the government was unwilling or unable to prevent the abuse he suffered as a child. In order to establish past persecution, Bringas was required to show (1) that he suffered harm on the basis of a protected ground and (2)(a) that the harm was inflicted either by the government or (2)(b) by individuals or groups the government is unable or unwilling to control. Castro - Martinez, 674 F.3d at 1080. The court only addressed the second prong.

Bringas was required to meet 2(b) and provide evidence that the government was unable or unwilling to control his attackers because the people who abused him were not government actors. Courts consider whether the victim reported the abuse to the police in order to show the government's inability to control the actors, but it is not a requirement. Bringas-Rodriguez v. Lynch (9th Cir. 2015) 805 F.3d 1171, 1178. However, where a victim does not report the abuse to the authorities, there lies a gap in proof about how the government would have responded, and the victim bears the burden to fill in the gaps by showing how the government would have responded had he reported the abuse. Id. at 1081

As 'gap filling' evidence, Bringas offered country reports and testimony about his friends experiences with police in Veracruz. The country reports from 2009 and 2010 from U.S. Department surveyed the state of sexual orientation discrimination across Mexico. He also testified that a couple of his gay friends told him that when they reported to the police that they were raped and beaten, they laughed in their faces and did nothing.
The court held that the evidence was insufficient. As for the country reports, the court found them unpersuasive because they noted only one specific example of government persecution on the basis of sexual orientation in the whole country of Mexico. The reports actually indicated positive sentiments toward the homosexual population. For example, they highlighted gay pride marches in cities across the country, described the expansion of marriage equality in Mexico City, and detailed a ruling from the Mexican Supreme Court requiring Mexico's states to recognize legally performed marriages performed elsewhere. The court pointed out that the ruling was made five years before the United States Supreme Court reached a similar conclusion. Regarding Bringas's testimony, he did not offer enough details or any evidence that the abuse was actually reported. Additionally, there was no evidence connecting general police practices in the state or city of Veracruz with the specific police practices in Bringas's town of Tres Valles.

Future Persecution
Since he was unable to establish past persecution, Bringas was not entitled to a presumption of future persecution. Therefore, he was required to provide evidence of a well-founded fear of future persecution by demonstrating that his fear was subjectively genuine and objectively reasonable. Bringas' credibility was not at issue, which allowed the court to proceed to determine whether his fear was objectively reasonable.
To show that his fear was objectively reasonable, Bringas could establish either (1) he was a member of a disfavored group against which there was a systematic pattern or practice of persecution or (2) he belongs to a disfavored group and has an individualized risk of being singled out for persecution.

Bringas failed to raise the argument that he was singled out as a member of a disfavored group when he failed to raise it to the BIA. Bringas argued that there was a pattern or practice of prosecution of gay men in Mexico. To confute his argument, the court cited Castro v. Martinez where the court rejected the petitioner's similar argument. In Castro, the country reports indicated that the Mexican government made efforts to prevent violence and discrimination against homosexuals in recent years. Further, Mexican law actually prohibited discrimination on the basis of bias on sexuality and required federal agencies to promote tolerance. Bringas produced no evidence that conditions in Mexico have changed since Castro was decided.

Covenant Against Torture
The second issue was whether Bringas met the evidentiary standard of proof required for a CAT claim such that he would "more likely than not" be tortured by or with the acquiescence of the Mexican government if he is removed to Mexico. Garcia-Milian v. Holder, 755 F.3d 1026, 1031.

The court affirmed the BIA's decision and further stated that even if his past experiences of abuse as a child were considered torture, the BIA is not required to presume that he would be tortured again especially now that he is a self-sufficient adult.

Motion to Remand - HIV Diagnosis
Lastly, the court affirmed the BIA's decision not to remand the case back to the Immigration Judge. The BIA rejected Bringas's argument that due to his diagnosis, he was in an even more vulnerable class because he did not provide any additional evidence or arguments demonstrating how this was certain. The lack of access to HIV drugs in Mexico is a widespread problem suffered not only by homosexuals, but also by the population as a whole.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/19/13-72682.pdf

Panel: William A. Fletcher and Jay S. Bybee, Circuit Judges and Benjamin H. Settle, District Judge for the U.S. District Court for the Western District of Washington

Argument Date: November 18, 2014

Date of Issued Opinion: November 19, 2015

Docket Number: 13 - 72682

Decided: Affirmed Board of Immigration Appeals decision to deny application for asylum, withholding of removal, protection under the Covenant Against Torture and motion to remand

Case Alert Author: Mia Lomedico

Counsel: Andrea Ringer (argued) and Marco Pulido Marques (argued), Certified Law Students, University of California, Irvine School of Law, Appellate Litigation Clinic, Irvine, CA; Mary - Christine Sungaila, Pro Bono Attorney, Snell & Wilmer LLP, Costa Mesa, CA, for Petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division, Kohsei Ugumori and John W. Blakeley (argued), Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Peter E. Perkowski, Winston & Strawn LLP, Los Angeles, CA, for Amici Curiae The Public Law Center, Lambda Legal Defense and Education Fund, the National Immigrant Justice Center, the Center for HIV Law and Policy; HIV Law Project; Immigration Equality; Disability Rights Legal Center; and the Asian & Pacific Islander Wellness Center

Author of Opinion: Jay S. Bybee

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 03/01/2016 12:55 PM     9th Circuit     Comments (0)  

  Transbay Auto Service, Inc. v. Chevron USA Inc. - Ninth Circuit
Headline: Ninth Circuit panel holds when a party acts in accordance with the contents of a document, that party adopts the contents enclosed in the document, even if the party never reviewed the statements contained in the document.

Area of Law: Evidence

Issue Presented: Should a document be admitted as an adoptive statement if, despite not reviewing the document, a party did in fact act in accordance with the contents of the document.

Significance: This case involves a matter of first impression because the court had not yet reviewed a case where a party, who has not reviewed a document, acted in accord with the document's contents. This case presented an opportunity for the Ninth Circuit to adopt the First Circuit's construction of the "possession plus" standard as it applies to documents, a standard the Ninth Circuit first articulated in United States v. Ospina, 739 F .2d 448 (9th Cir. 1984).

Brief Summary: In an action against a franchisor for failing to make a "bona fide offer" pursuant to the Petroleum Marketing Practices Act ("PMPA"), the district court ruled that a third-party appraisal that plaintiff used to successfully secure a loan was inadmissible as an adoptive statement because the record did not establish that the plaintiff or the lender actually read the appraisal. The Ninth Circuit reversed, holding that the "district court applied the wrong standard" by failing to apply the "possession plus" standard and "limiting the scope of Federal Rule of Evidence 801(d)(2)(B) to whether the evidence established that the plaintiff did 'actually hear, understand, and accede to the [statements contained in the appraisal].'" Because the plaintiff knowingly brought the appraisal to the lender, used the appraisal with a desire to induce the lender to fund the purchase, and understood that the lender might rely on the appraisal in determining whether to finance the transaction, the panel held that the appraisal's contents were adopted and admissible pursuant to Rule 801(d)(2)(B).

Extended Summary: In 2001, Chevron and Transbay entered into a service station franchise agreement. In 2008, Chevron informed Transbay of their intent to sell the property. Transbay submitted a bid to purchase the land for $1.8 million. Chevron rejected the bid and subsequently made an alleged "bona fide offer" as required under the Petroleum Marketing Practices Act ("PMPA"), the law governing the cancelation of service station franchise agreements. See 15 U.S.C. § 2802(b)(3)(D)(iii). Under PMPA, a "bona fide offer" is an objectively reasonable offer made at fair market value. Ellis v. Mobil Oil, 969 F .2d 784, 787 (9th Cir. 1992).

In preparation for submitting their "bona fide offer," Chevron obtained an appraisal, which indicated a value of $2.386 million based on the property's "highest and best use" and $1.5 million if continued as a gas station (a going concern valuation). Subsequently, Chevron offered the property for purchase to Transbay for $2.375 million as an unbranded station (the alleged "bona fide offer"). The sole owner of Transbay, Tsachres, agreed to purchase the property under protest for $2.375 million as an unbranded station.

In an effort to locate funding for the transaction, Transbay obtained an appraisal conducted by Property Service Group ("PSG"), which indicated a going concern value of $2.5 million ("PSG Appraisal"). Whether Tsachres actually reviewed the PSG Appraisal, and whether the bank that funded the deal relied on the PSG Appraisal are disputed matters of fact. However, that Tsachres personally delivered the appraisal to the lender from which Transbay obtained financing is undisputed.

In 2009, Transbay brought an action against Chevron in district court, alleging that Chevron failed to make a "bona fide offer" and therefore violated PMPA. At issue was the admissibility of the PSG Appraisal because the going concern valuation of $2.5 million, produced by an entity unaffiliated with Chevron, favored a finding that Chevron's offer was in fact bona fide.

Initially, the district court ruled that the evidence was sufficient as an adoptive admission under the Federal Rule of Evidence 801(d)(2)(B). However, after a mid-trial voir dire of Tsachres outside the presence of the jury, during which Tsachres testified that he never reviewed the PSG Appraisal, the district court reversed its ruling as to the admissibility of the PSG Appraisal, concluding that the state of the record did not establish a basis for an 801(d)(2)(B) adoptive admission. After the trial, the jury awarded Transbay $495,000 in damages. Upon denial of Chevron's post-verdict motion for a new trial, the district court restated its finding that there was "no indication that Mr. Tsachres actually read the contents of the PSG Appraisal." Chevron appealed to the Ninth Circuit.

The Ninth Circuit panel first reviewed the district court's ruling as to the admissibility of the PSG Appraisal. After examining prior decisions, including the opinions of sister circuits and parities drawn from criminal cases, the panel "embrace[d] the First Circuits formulation of [the Ninth Circuit's] 'possession plus' standard as it pertains to documents - we do not look to whether the party has affirmatively reviewed the document, but whether 'the surrounding circumstances tie the possessor and the document together in some meaningful way.'" In other words, if a party acts in accordance with the statements contained in a document, the statements therein may be adopted even if the party has not reviewed the document's contents.

On de novo review, the panel held that the "district court applied the wrong standard" by failing to apply the "possession plus" standard and "limiting the scope of Rule 801(d)(2)(B) to whether the evidence established that Tsachers did 'actually hear, understand, and accede to the [statements in the PSG Appraisal].'" Because Tsachers knowingly brought the PSG Appraisal to the lender, used the PSG Appraisal with a desire to induce the lender to fund the purchase, and understood that the lender might rely on the PSG Appraisal in determining whether to finance the transaction, the panel held that Tsachers acted in accordance with the statements contained in the document. Therefore, the panel held, Tsachers adopted the statement in the PSG Appraisal and the district court erred in holding that the PSG Appraisal was inadmissible pursuant to Rule 801(d)(2)(B). The judgment of the district court was therefore vacated and the case was reversed and remanded for a new trial.

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/11/30/13-15439.pdf

Panel: Alex Kozinski and Richard C. Tallman, Circuit Judges, and Lawrence L. Piersol, Senior Judge.

Argument Date: August 10, 2015

Date of Issued Opinion: November 30, 2015

Docket Number: 14-15297

Decided: Reverse and remand for a new trial

Case Alert Author: Andre Clark

Counsel: David S. Ettinger (argued) and Michell C. Tilner, Horvitz & Levy LLP, Encino, California; Robert C. Phelps, Glynn & Finely, LLP, Walnut Creek, California, for Defendant-Appellant. Samuel T. Rees (argued) and Martin R. Fox, Bleau Fox, Los Angeles, California, for Plaintiff-Appellee.

Author of Opinion: Judge Tallman

Circuit: Ninth

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 03/01/2016 12:46 PM     9th Circuit     Comments (0)  

February 29, 2016
  Garcia v. Fuenmayor-11th Circuit
Headline: Eleventh Circuit holds serious threats to parent can constitute a grave risk of harm to the child and provide exception to return of child under the Hague Convention on the Civil Aspects of International Child Abduction ("Convention").

Area of Law: International Law; Children

Issue: Whether threats and violence directed against a parent satisfies the "grave risk of harm" exception to the return remedy of the Convention.

Extended Summary: Hayet Naser Gomez ("Naser"), the mother of M.N., petitioned under the Convention for return of M.N. when the child's father, Alfredo Jose Salvi Fuenmayor ("Salvi") wrongfully removed M.N. from Venezuela. The district court denied the petition, finding that the acts of violence towards Salvi presented evidence that there was a grave risk that the child's return would expose M.N. to physical or psychological harm. As such, it satisfied the grave risk of harm exception to the Convention.

The Eleventh Circuit noted that the district court's factual findings showed that Salvi's family was shot at, had property vandalized and that drugs were planted in Salvi's mother's car. Naser did not contest the district court's findings of fact. In affirming the district court, the Eleventh Circuit found that the facts in this case showed sufficiently serious threats and violence against a parent which posed a grave risk of harm to the child. Accordingly, the court determined the grave risk of harm exception to the return remedy of the Convention was present and that M.N. would not be required to return to Venezuela.
To view the full opinion click here:


Panel: Marcus, Jordan, and Black, Circuit Judges

Argument: January 12, 2016

Date of Issued Opinion: February 5, 2016

Docket Number: 15-12075

Decided: Affirmed

Case Alert Author: Matthew Carcano, Kevin Coppin, Oscar Quintero, Kielan Saborit

Counsel: Paul Morris, et al. for Appellant
Brett Alan Barfield, et al. for Appellee

Author of Opinion: Circuit Judge Stanley Marcus

    Posted By: Gary Kravitz @ 02/29/2016 01:17 PM     11th Circuit     Comments (0)  

  Grueninger v. Virginia Dep't. of Corrections -- Fourth Circuit
Attorney's Failure to Challenge Uncounseled Confession Justifies Reversal of Sex Abuse Conviction

Areas of Law: Criminal Law, Constitutional Law, Criminal Procedure

Issues Presented: (1) Whether defense counsel's failure to move to suppress client's uncounseled confession constituted ineffective assistance of counsel. (2) If so, whether counsel's ineffectiveness established cause and prejudice excusing Grueninger's procedural default of the claim.

Brief Summary: The Fourth Circuit found that but for counsel's deficient performance in failing to file the suppression motion or objecting to the use of Grueninger's confession during trial, the result of the proceeding would have been different. Therefore, with respect to the convictions on sexual abuse charges, the Fourth Circuit reversed and remanded the district court's dismissal of Grueninger's habeas petition.

Extended Summary:
On March 13, 2009, Virginia police arrested Eric Adam Grueninger for sexually abusing his fourteen-year-old daughter. An officer met with Grueninger in jail and administered Miranda warnings to which Grueninger responded, "These are felonies, I need an attorney." The officer immediately ceased all questions. Later that day, an officer searched Grueninger's home and found thumb drives in Grueninger's top dresser drawer containing pictures and videos of child pornography. Three days later, a new arrest warrant with additional charges was issued, and an officer visited Grueninger again to administer Miranda warnings and ask questions about the new charges. Grueninger admitted to various sexual acts with his daughter in addition to storing and accessing child pornography on his laptop.

A grand jury charged Grueninger with two counts of indecent liberties with a child under the age of fifteen, two counts of aggravated sexual battery by a parent, one count of rape by force or threat, three counts of forcible sodomy, and two counts of sexual object penetration (hereinafter collectively "the sexual abuse charges"). Grueninger was also charged with nine counts of possession and one count of distribution of child pornography (hereinafter "the child pornography charges"). Grueninger's attorney did not file a motion to suppress Grueninger's confession under Edwards v. Arizona, 451 U.S. 477 (1981), in writing before trial as local rules required. Counsel also failed to object to the introduction of the confession at trial. At the close of evidence, the trial court noted the importance of the confession, pointing out how the confession shifted the case to a different perspective. Grueninger was convicted on all counts and sentenced to a total term of 235 years, all but 88 suspended.

Grueninger appealed his convictions, arguing insufficient evidence and ineffective counsel. The Court of Appeals of Virginia affirmed, and the Supreme Court of Virginia denied his request for review. On July 25, 2011, Grueninger filed a pro se petition for writ of habeas corpus in the Hanover Circuit Court before the same judge who presided over his case. The Circuit Court held that Grueninger was not entitled to relief on any of his claims. In particular, the judge dismissed the petition due to procedural default on the substantive Edwards claim and found no prejudice caused by ineffective counsel. The Supreme Court of Virginia agreed. On June 12, 2013, Grueninger filed a federal habeas petition under 28 U.S.C. § 2254 in the Eastern District of Virginia (hereinafter "the district court"), largely alleging the same claims. The district court agreed with the circuit court. Grueninger later appealed to the United States Court of Appeals for the Fourth Circuit (hereinafter "Fourth Circuit"), which granted partial relief.

The Fourth Circuit reviewed the district court's denial of the habeas petition de novo and found its determination objectively unreasonable. As to the Edwards issue, the Fourth Circuit believed Grueninger unambiguously invoked his right to counsel after being given Miranda warnings in jail the first time and was subsequently interrogated by the visiting officer. Grueninger was also able to show ineffective counsel through deficient performance and prejudice under Strickland v. Washington, 466 U.S. 668 (1984). The Fourth Circuit noted that the unfiled suppression motion was substantive and but for counsel's deficient performance in filing the Edwards motion or objecting to the use of Grueninger's confession during trial, the result of the proceeding would have been different. Therefore, with respect to the convictions on the sexual abuse charges, the Fourth Circuit reversed and remanded the district court's dismissal of the habeas petition. The court, however, affirmed the child pornography convictions because the Commonwealth presented overwhelming evidence tying Grueninger to the thumb drive and laptop file containing child pornography with his name on it, and Grueninger could not show a reasonable probability that the confession altered the outcome of the trial as to those charges.

To read the full opinion, click here.

Panel: Judges Motz, Gregory, and Harris

Argument Date: 10/27/2015

Date of Issued Opinion: 02/09/2016

Docket Number: Case No. 14-7072

Decided: Affirmed in part, reversed in part, and remanded by published opinion.

Case Alert Author: Nakisha Small, Univ. of Maryland Carey School of Law

Counsel: Michael Allen McIntosh, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, Washington, D.C., for Appellant. Steven Andrew Witmer, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Author of Opinion: Judge Harris

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/29/2016 12:44 PM     4th Circuit     Comments (0)  

February 25, 2016
  Nat'l. Fed. of the Blind v. Lamone -- Fourth Circuit
Absentee Voting For All: Tool To Be Implemented That Will Assist Voters With Disabilities

Areas of Law: Disability Law

Issue Presented: Whether individuals with various disabilities were denied meaningful access to Maryland's absentee voting program in violation of Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act (collectively "the Acts") because the state's absentee voting program requires voters to hand mark their ballots

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit upheld the United States District Court for the District of Maryland's holding that Maryland's absentee voting program which requires voters to mark their ballots by hand, denies individuals with disabilities who cannot hand mark their ballots, meaningful access to absentee voting in violation of the ADA and the Rehabilitation Act

Extended Summary: In Maryland, absentee voters can obtain their absentee ballots by mail, fax or by electronically downloading them. Voters who electronically download their absentee ballots must print out the hardcopy of the ballot, mark their selections by hand, sign the hardcopy and return the completed ballot to their local election board. For years, Maryland has been in the process of developing software, an online ballot marking tool ("the tool") that would allow absentee voters who electronically download their ballots to mark their choices electronically. The tool is compatible with various personal assistive devices that are used by people with various disabilities and would eliminate the need for people who are not able to hand mark their own ballots to find individuals to mark their ballots for them. The tool was used in a limited capacity in Maryland's 2012 primary and general elections. Although improvements continued to be made to the tool, it was not certified for general use by Maryland's State Board of Elections.

In 2014, the National Federation of the Blind and three individual Maryland voters with disabilities ("Plaintiffs") filed suit against the State Administrator of Elections and the five Board members ("Board") in their official capacities. The suit alleged that Maryland's absentee voting program violated the Acts as hand marking a hardcopy of a ballot without the assistance of another individual is impossible for voters who have various disabilities. Therefore, Plaintiffs alleged that the program deprived these individuals of meaningful access to absentee voting. Plaintiffs sought declaratory judgment and an injunction requiring the Board to make the tool available for use in the 2014 general election.

Prior to trial, several similarly situated individuals who were asserting similar claims though seeking an injunction to bar the tool's certification, filed a motion to intervene in the case. The district court permitted the putative intervenors to participate in the trial but denied their motion that would have allowed them to assert independent claims against the Board. In a bench trial, the district court held that because Maryland's absentee voting program did not allow Plaintiffs to mark their ballots without assistance, Plaintiffs had been denied meaningful access to absentee voting in violation of the Acts. The district court entered a permanent injunction prohibiting the Board from violating the Plaintiffs' rights and required the Board to make the tool available for use by the 2014 general election. The Board appealed.

The Fourth Circuit affirmed the district court's finding that the proper way to define the scope of the relevant public program was as Maryland's absentee voting program and not as Maryland's general voting program. The court based this finding on the fact that the Acts prohibit public entities from denying the benefits of public programs based on disability. The court also explained that the Supreme Court has suggested that courts should proceed cautiously when defining a public program as a definition that is too general may overlook the difficulties that people with disabilities may have in terms of accessing specific government services.

The Fourth Circuit also affirmed the district court's three core legal conclusions. The Fourth Circuit upheld the district court's conclusion that Plaintiffs were denied meaningful access to absentee voting by being required to rely on the assistance of others. The court explained that requiring individuals to vote with the assistance of others provides these individuals with a voting experience that is inferior and unequal to that afforded to everyone else. The Fourth Circuit also upheld the district court's conclusion that the tool is a reasonable accommodation that would give individuals with disabilities access to absentee voting. The court explained that the tool is reasonably secure, private, accessible to voters with disabilities and would likely not be a substantial cost or implementation burden as it has already been developed and implemented without apparent incident. The Fourth Circuit also upheld the district court's conclusion that the tool would not fundamentally alter Maryland's absentee voting program as use of the tool is not unreasonably at odds with the state's voting apparatus certification procedure.

The Fourth Circuit concluded its analysis by articulating that there is no evidence that the Board acted with discriminatory intent in implementing its absentee voting program. Moreover, Maryland's decision to allow all of its voters to vote absentee, provides voters with a unique and uncommon benefit.

To read the full text of this opinion, please click here.

Panel: Judges Gregory, Duncan, and Floyd

Argument Date: 10/28/15

Date of Issued Opinion: 02/09/16

Docket Number: Case No. 14-2001

Decided:
Affirmed by published opinion.

Case Alert Author: Simone Chukwuezi, Univ. of Maryland Carey School of Law

Counsel:
ARGUED: Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellants. Jessica Paulie Weber, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellees. Thomas Evans Chandler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of America. ON BRIEF: Brian E. Frosh, Attorney General of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellants. Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellees. Amy F. Robertson, CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, Denver, Colorado; Alyssa R. Fieo, MARYLAND DISABILITY LAW CENTER, Baltimore, Maryland, for Amici Civil Rights Education and Enforcement Center, Maryland Disability Law Center, ADAPT Maryland, American Civil Liberties Union, Arc Maryland, Arc of the United States, Association of Assistive Technology Act Programs, disAbility Law Center for Virginia, Disability Rights Advocates, Disability Rights Bar Association, Disability Rights Education & Defense Fund, Disability Rights North Carolina, Freedom Center, IMAGE Center for People with Disabilities, Independence Now, Judge 3 David L. Bazelon Center for Mental Health Law, League for People with Disabilities, Maryland Developmental Disabilities Council, Maryland Disabilities Forum, National Association of the Deaf, National Disability Rights Network, On Our Own of Maryland, Paralyzed Veterans of America, People on the Go, Protection and Advocacy for People with Disabilities, Southern Maryland Center for Independent Living, United Spinal Association, and West Virginia Advocates. Vanita Gupta, Principal Deputy Assistant Attorney General, Mark L. Gross, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of America.

Author of Opinion:
Judge Floyd

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/25/2016 04:23 PM     4th Circuit     Comments (0)  

  Warfaa v. Ali -- Fourth Circuit
Alien Tort Explained: Fourth Circuit Limits International Application of Alien Tort Statute

Areas of Law: Civil Procedure, International Law

Issues Presented: Whether the District Court has subject matter jurisdiction under the Alien Tort Statute or the Torture Victim Protection Act when acts of torture occur outside the United States.

Brief Summary: In the 1980s, Yusuf Ali was part of a military unit in Somalia that kidnapped and tortured Farhan Warfaa. Warfaa sought to bring claims against Ali for these actions. Ali now resides in the United States, while Warfaa still resides in Somalia. In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the District Court for the Eastern District of Virginia did not have subject matter jurisdiction under the Alien Tort Statute to hear Warfaa's claims against Ali because Warfaa's claims do not "touch and concern" the United States. The Fourth Circuit also held that two of Warfaa's claims could move forward under the Torture Victim Protection Act.

Extended Summary:
Throughout the 1980s, Somalia experienced a period of political upheaval. The country was ruled by military dictatorship, and the government persecuted opposition political organizations. Appellant Farhan Warfaa lived in Somalia during that time period and was a member of a clan that opposed the government. Yusuf Ali supported the dictatorship and was the commander of the Fifth Battalion of the Somali National Army.

In December of 1987, soldiers from Ali's unit kidnapped Warfaa from his home and took him to a military base. While in captivity, Warfaa was tortured by Ali and his soldiers, including severe beatings on more than nine occasions. In 1988, as the military regime was collapsing, Ali shot Warfaa in the wrist and leg, and left him for dead. Warfaa was able to bribe one of the remaining guards and escaped. He still lives in Somalia today.

Ali fled Somali in advance of the government's fall, and immigrated to Canada. He was eventually deported from Canada and traveled to the United States, where he was subsequently put in removal proceedings and deported. Ali returned to the United States on a spousal visa in 1996 and was permitted to remain after initially being placed in removal proceedings. He currently resides in the United States.

In 2005, Warfaa filed six claims against Ali in the District Court for the Eastern District of Virginia. Warfaa's claims include (1) attempted extrajudicial killing, (2) torture, (3) cruel, inhumane, or degrading treatment or punishment, (4) arbitrary detention, (5) crimes against humanity, and (6) war crimes. Warfaa alleged that the District Court had jurisdiction over all six claims based on the Alien Tort Statute. Warfaa also maintained the court had jurisdiction over the first two claims under the Torture Victim Protection Act of 1991.

While Warfaa's claims were initially filed in 2005, the District Court stayed the case until 2012 until either party could provide assurance from the U.S. State Department that the case would not interfere with U.S. foreign policy. The State Department ultimately chose not to comment, and the District Court allowed the case to move forward. The court also enforced a stay from 2012 to 2014 pending the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013). Once the State Department declined to comment and the Supreme Court addressed the Alien Tort Statute in Kiobel, the District Court allowed Warfaa's case to move forward.

Warfaa claimed the District Court had subject matter jurisdiction over all six claims under the Alien Tort Statute ("ATS"). The ATS is a brief, one-sentence provision passed within the Judiciary Act of 1789, which provides that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." From its passage to 1980, the ATS was essentially never invoked. From 1980 onward, however, several courts interpreted the statute to permit claims of torture committed abroad where all claims involved foreign nations.

In Kiobel, however, the Supreme Court placed limitations on this application of the ATS. The Kiobel Court held that claims involving conduct that occurred in a foreign country are ordinarily not covered by the ATS, and that a "presumption against extraterritorial application" exists when applying the ATS to foreign cases. Kiobel did not categorically prohibit application of the ATS to foreign cases, but rather established a requirement that the actions in question must "touch and concern" the United States with sufficient force to displace the presumption against extraterritorial application.

Based on the Supreme Court's decision in Kiobel, the District Court granted summary judgment for Ali on the Alien Tort Statute claims. However, the District Court did allow Warfaa's first two claims to proceed under the Torture Victim Protection Act, finding that Ali could not claim "official act" immunity because his actions violated jus cogens norms and were so universally against international law that they could not be protected by governmental immunity.

Both parties appealed to the Fourth Circuit. On appeal, the Fourth Circuit upheld the judgment of the District Court and found that Warfaa's ATS claims were properly dismissed, but the two claims under the Torture Victim Protection Act ("TVPA") could go forward.

The Fourth Circuit applied the newly formed Kiobel test to Warfaa's case and found that Ali's actions did not sufficiently touch and concern the United States. While the court acknowledged that Ali did immigrate to the U.S. and has lived here for nearly 20 years, the court did not find sufficient facts to demonstrate a "strong and direct connection" to the United States to overcome the Kiobel presumption. The Fourth Circuit noted that Ali's residence in the United States was mere "happenstance" and did not demonstrate any compelling reason for U.S. courts to exercise jurisdiction over his actions in Somalia.

The court also upheld the District Court's decision to allow the claims under the TVPA to move forward. The court found that Ali's actions violated jus cogens norms, and Ali did not dispute this fact. Instead, Ali sought to have the Fourth Circuit overturn Yousuf v. Samatar, 699 F.3d 763 (4th Cir. 2012), which held that foreign officials cannot claim official act immunity for jus cogens violations. The court declined to overturn this precedent.

Judge Gregory dissented from the majority's opinion with regard to the ATS issue. In his dissent, Judge Gregory wrote that Ali's conduct did in fact "touch and concern" the United States. He noted that Ali is a lawful permanent resident of the U.S., has resided in the U.S. for 20 years, and received specialized military training at U.S. military institutions on three separate occasions, including once after his actions in Somalia against Warfaa. Judge Gregory also argued that the Alien Tort Statute is meant to give individuals a remedy against those living in the U.S. who have committed human rights atrocities.


To read the full text of this opinion, please click here.

Panel: Agee, Diaz, and Gregory (dissenting as to Part III)

Argument Date: 09/16/2015

Date of Issued Opinion: 02/01/2016

Docket Number: 14-1810, 14-1934

Decided: Affirmed by published opinion.

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Joseph Peter Drennan, Alexandria, Virginia, for Appellant/Cross-Appellee. Tara Melissa Lee, DLA PIPER LLP (US), Reston, Virginia, for Appellee/Cross-Appellant. ON BRIEF: Joseph C. Davis, Reston, Virginia, Paul D. Schmitt, Mason Hubbard, DLA PIPER LLP (US), Washington, D.C.; Laura Kathleen Roberts, Nushin Sarkarati, Scott A. Gilmore, CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California, for Appellee/Cross-Appellant.

Author of Opinion: Agee, J.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/25/2016 08:37 AM     4th Circuit     Comments (0)  

  United States of America v. Prado - Second Circuit
Headline: Second Circuit Holds General Jury Instructions for Aiding and Abetting Knowing and Intentional Use of a Firearm Charge are Insufficient and Plainly Erroneous.

Area of Law: Criminal Law

Issue(s) Presented: Whether the jury should have been instructed that it was required to find the defendants joined a criminal venture with full knowledge of its scope, including advance knowledge of a gun at a time the defendant could have withdrawn from the scheme.

Brief Summary: Heriberto Martinez was convicted of fourteen counts related to racketeering activity and three murders and Carlos Ortega was convicted of twelve counts related to racketeering activity and two murders (collectively the "defendants"). In particular, both defendants were convicted of aiding and abetting a violation of 18 U.S.C. § 924(c), using or carrying a firearm in relation to a crime of violence or possessing a firearm in furtherance of that crime, in connection with a murder. At trial, the United States District Court for the Eastern District of New York gave the jury general instructions on aiding and abetting liability and both defendants were found guilty.

The Second Circuit held that in the wake of the 2014 United States Supreme Court decision in Rosemond v. United States, general instructions on aiding and abetting liability that do not require the jury to find that the defendant had advance knowledge that a confederate would be armed are insufficient and plainly erroneous. In addition, the Second Circuit held that this error affected Ortega's, but not Martinez's, substantial rights, and therefore vacated Ortega's aiding and abetting conviction.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...183b70cdb87/1/hilite/

Extended Summary: In March 2010, Martinez and Ortega, members of the gang La Mara Salvatrucha, also known as MS-13, met at the home of Jeremias Amaya, to discuss Quijada, another member of MS-13. The group discussed that Quijada "wasn't running properly," that he "was not good for the Mara because he only caused problems," and that "he only caused problems and never sold a thing." Because of these problems, the MS-13 members present decided that they would require Quijada to kill a rival gang member to prove himself. The group picked up Quijada and drove around looking for rival gang members for Quijada to kill, but were unable to find any. Quijada was dropped off at home and the rest of the group returned to Amaya's home where they unanimously voted to pick Quijada up and kill him.

Following the meeting, the group called Quijada and told him they were coming to pick him up because they had found a rival gang member. The group went to get Quijada, and brought him to the beach. Prior to leaving for the beach, Martinez grabbed a machete. At the beach, Amaya took out a gun to shoot Quijada, but the gun jammed. Martinez gave Amaya the machete, which Amaya then used to stab Quijada. Another MS-13 member then stabbed Quijada with a kitchen knife. Quijada was ultimately stabbed to death. There was no evidence that Ortega participated in the assault on and murder of Quijada after the gun appeared, however, he was present the entire time.

Count 21 of the indictment charged Martinez and Ortega with brandishing a firearm during a crime of violence in connection with the murder of Quijada. The indictment charged them with 18 U.S.C. §924(c)(1)(A)(ii), (c)(1)(C) and 18 U.S.C. §2. For both charges, the United States District Court for the Eastern District of New York gave the jury general instructions on aiding and abetting liability that, in pertinent part, required the jury to find that "the defendants intended to commit the charged crime, not only the predicate offense," but did not ask the jury to find that defendants "consciously shared the knowledge of the principal." and both defendants were found guilty.

The Second Circuit reviewed the appeal of count 21 under the "plain error standard" and concluded that the instructions were erroneous in light of the Supreme Court's 2014 decision in Rosemond v. United States. In Rosemond, the Supreme Court concluded, that "[w]hat matters for purposes of gauging intent, and so what jury instructions should convey, is that the defendant has chosen, with full knowledge, to participate in the illegal scheme." There, the Supreme Court explained that the jury in that case had been improperly charged because the instructions did not explain that the defendant "needed advance knowledge of a firearm's presence."

The Second Circuit noted that, subsequent to Rosemond, both the Sixth and Tenth Circuits have considered whether general umbrella aiding and abetting instructions are plainly erroneous and reached different conclusions. The Sixth Circuit found instructions that did not require only that the defendant have advance knowledge that a firearm would be used but only intent to further the predicate crime, not the use if the gun. The Tenth Circuit, however, found instructions that required the government to prove the defendant "consciously shared the other person's knowledge of the underlying criminal act and intended to help him or her" were not clearly erroneous. Finding that the instructions given in this case "fall somewhere between those rejected by the Sixth Circuit and those accepted by the Tenth Circuit," the Second Circuit held that the jury instructions given to Martinez and Ortega were plainly erroneous because they failed to require the jury to find the "defendants had advance knowledge of the gun at a time that they could have chosen not to participate in the crime."

The Second Circuit next addressed whether the error affected Martinez's and Ortega's substantial rights. The Second Circuit found that there was no direct evidence that Ortega knew, upon leaving to pick up Quijada, that someone had brought a gun, very little evidence of advanced knowledge of the gun, and a reasonable probability of a different trial outcome had the jury been properly instructed. In contrast, the court concluded there was direct evidence of Martinez's participation in the murder because Amaya handed the jammed gun to Martinez and Martinez handed the machete to Amaya and, accordingly, the Second Circuit could not say that there was a reasonable probability of a different outcome at trial for Martinez had the jury been properly instructed.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...183b70cdb87/1/hilite/

Panel: Circuit Judges Calabresi, Pooler, and Lynch

Argument Date: 12/9/2015

Date of Issued Opinion: 2/24/2016

Docket Number: No. 13-2894-cr (L)

Decided: Affirmed, Vacated and Remanded

Case Alert Author: Daniel Plaia

Counsel: Robert A. Soloway, Rothman, Schneider, Soloway & Stern, LLP, New York, NY, for Defendant-Appellant Mario Alphonso Herrera-Umanzor, John Frederick Carman, Garden City, for Defendant-Appellant Vidal Espinal, Randall D. Unger, Bayside, NY (Elizabeth E. Macedonio, New York, NY, on the brief), for Defendant-Appellant Heriberto Martinez, Elizabeth Johnson (Ira D. Johnson and Avrom Robin on the brief), Law Offices of London & Robin, New York, NY, for Defendant-Appellant Carlos Ortega, John J. Durham, Assistant United States Attorney (Carrie N. Capwell, Peter A. Norling, and Raymond A. Tierney, Assistant United States Attorneys, on the brief), for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Author of Opinion: Judge Pooler

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 02/25/2016 08:18 AM     2nd Circuit     Comments (0)  

February 24, 2016
  United States v. Williams et al. -- Fourth Circuit
Stick to the Sentencing Guidelines for Best Chance of Review

Areas of Law: Criminal Procedure

Issues Presented: Whether the district court complied with Federal Rule of Criminal Procedure 11 when accepting the defendants guilty pleas; and whether one of the sentences was reasonable.

Brief Summary: Defendants David James Williams and Kristin Deantanetta Williams each pled guilty to one count of conspiracy to possess and distribute cocaine and cocaine base. Both stipulated to a sentence of 120 months of imprisonment under Federal Rule of Criminal Procedure Rule 11 (c)(1)(c) in their plea agreements. The district court sentenced them accordingly. The defendants appealed their convictions to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit found no error with the convictions and affirmed. Appellant Kristin Williams also challenged her sentence on appeal.

Before accepting a plea, the district court is required to engage in a colloquy with the defendant to make sure the defendant understands the nature of the charges for which the plea is offered, any mandatory minimum and maximum penalties, and the rights the defendant is giving up by pleading guilty. A plea colloquy is reviewed for plain error, as opposed to harmless error, if the defendant does not ask to withdraw her guilty plea in the district court. Applying these rules to the cases before it, the United States Court of Appeals for the Fourth Circuit concluded that the district court complied with Rule 11's requirements and rejected the challenges.

With respect to Kristin Williams sentencing challenges, an appellate court may only review a defendant's sentence if: (1) it was imposed in violation of law; (2) it was imposed as a result of an incorrect application of the sentencing guidelines; (3) it is greater than the sentence specified in the applicable guideline range; or (4) it was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. However, a defendant who is sentenced pursuant to a stipulated plea agreement cannot appeal under (3) or (4) above unless the sentence imposed is greater than the sentence in the agreement.

In the instant case, the 120-month sentence Kristin Williams received was exactly what she stipulated to in the plea agreement. Therefore, the sentence did not run afoul of appellate review options (1), (3), or (4), described above. The only option the Fourth Circuit had for reviewing Williams' sentence was if her sentence had been imposed as a result of an incorrect application of the sentencing guidelines.

In previous opinions the Fourth Circuit has suggested that a sentence imposed pursuant to a Rule 11(c)(1)(c) plea agreement is not imposed as a result of an incorrect application of the Sentencing Guidelines because it is based on the parties' agreement--not on the district court's calculation of the Guidelines. Other circuits treat sentences imposed pursuant to Rule 11(c)(1)(c) differently. The court looked to the Supreme Court case Freeman v. United States to clarify its position. In Freeman, the Supreme Court held that a sentence imposed pursuant to a Rule 11(c)(1)(c) plea agreement is generally based on the agreement and not the Sentencing Guidelines. An exception exists where the "...agreement uses a Guideline sentencing range applicable to the charged offense to establish the term of imprisonment." Thus the Fourth Circuit clarified that a sentence imposed pursuant to a Rule 11(c)(1)(c) plea agreement may be reviewed only if the "agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment."

This clarification of the rule allows appeals of sentences that are imposed as a result of incorrect application of the Sentencing Guidelines. It also will allow review of some stipulated plea sentences. Appellant Kristin Williams, however, was not helped by the clarified rule because her plea agreement did not use the Sentencing Guidelines to calculate her sentence. Her sentence was not imposed as a result of an incorrect application of the Sentencing Guidelines and the Fourth Circuit could not review the reasonableness of the sentence. Therefore, the Fourth Circuit dismissed Williams' appeal of her sentence.

Panel: Judges Wilkinson, Shedd, and Wynn

Argument Date: 10/29/2015

Date of Issued Opinion: 1/28/2016

Docket Number: No. 14-4680, No. 14-4689

Decided: Affirmed in part, dismissed in part by published opinion.

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: Melvin Wayne Cockrell, III, THE COCKRELL LAW FIRM, PC, Chesterfield, South Carolina; Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South Carolina, for Appellants. Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/24/2016 11:22 AM     4th Circuit     Comments (0)  

  United States v. Ramirez-Alaniz -- Fourth Circuit
Foreign Nationals Held in U.S. Indefinitely Under Civil Commitment

Areas of Law: Immigration Law

Issue Presented: Whether an undocumented person can be held in civil commitment if a district court finds that release creates a substantial risk of bodily injury to another person or serious damage to property.

Brief Summary: Ramirez-Alaniz entered the United States without inspection. In January 2011, Ramirez-Alaniz was sentenced to 30 months imprisonment after pleading guilty to criminal charges against him. After serving his sentence he was deported to Mexico. Two weeks later, he was detained by Customs and Border Patrol ("CPB") agents in Arizona and charged with illegal reentry following deportation. While under CPB detention, Ramirez-Alaniz "exhibited poor institutional adjustment, sexually inappropriate behavior, and noncompliance with the administration of medication." Due to this behavior the district court ordered that Ramirez-Alaniz undergo a dangerousness evaluation under 18 U.S.C. §§ 4246 and 4248. Ramirez-Alaniz was thereafter transferred to Federal Medical Center ("FMC") Butner. Mental health evaluators at FMC Butner found Ramirez-Alaniz incapable of proceeding with his criminal case and that his competency would not be restored in the near future.

The district court then conducted a commitment hearing. A psychiatrist and a psychologist testified that Ramirez-Alaniz responded well to medication and would not be a risk to the community so long as he was medicated. They also testified that there would be no way to ensure continued medication if Ramirez-Alaniz were released. The district court ordered Ramirez-Alaniz committed under § 4246, "given his psychotic disorder and cognitive defects." The district court in Arizona, following the commitment hearing, dismissed the criminal charges against him. On appeal, Ramirez-Alaniz contends that § 4246 is not applicable to his case since, upon release, he would be deported to Mexico, and § 4246 applies only to persons and property in the United States.

According to the United States Court of Appeals for the Fourth Circuit, Ramirez-Alaniz' argument "overlooks the fact that if released, Ramirez-Alaniz would...be released into the United States" as there is not currently a criminal action against him nor an action by the Department of Justice to commence removal proceedings in immigration court. Therefore, because he would be released into the United States, the district court's finding that he would pose a risk to persons or property in the U.S. in violation of § 4246 will stand. The court did not reach the extraterritorial argument raised by Ramirez-Alaniz. Ramirez-Alaniz also argued that American taxpayers should not be forced to cover the expense for foreign nationals, but the Fourth Circuit dismissed the claim as pure "speculation and hyperbole."

To read the full opinion, click here.

Panel: Judges Niemeyer, Duncan, Agee.

Argument Date: 12/09/2015

Date of Issued Opinion: 01/26/2016

Docket Number: No. 15-6003

Decided: Affirmed by unpublished opinion.

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Joseph Bart Gilbert, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Dodson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Jennifer F. Dannels, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Judge Niemeyer

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/24/2016 11:05 AM     4th Circuit     Comments (0)  

February 23, 2016
  Colon Health Centers of America, LLC v. Hazel -- Fourth Circuit
The Long CON and the Dormant Commerce Clause

Areas of Law: Constitutional Law, Health Law

Issue Presented: Does Virginia's Certificate of Need Program unconstitutionally violate the Dormant Commerce Clause by either a) discriminating against interstate commerce in both purpose and effect or b) by placing an undue burden on interstate commerce?

Brief Summary: Virginia's Certificate of Need (hereinafter "CON") program does not unconstitutionally discriminate against interstate commerce in violation of the Dormant Commerce Clause or place an undue burden on interstate commerce. Appellants Colon Health Centers and Progressive Radiology argue that the primary goal of the CON requirement is discriminatory in purpose and effect. The United States Court of Appeals for the Fourth Circuit (hereinafter "the court" or "the Fourth Circuit") rejected both of these arguments, pointing to the array of legitimate purposes the CON program serves, as well as the lack of appreciable difference in the approval/rejection rate for in-state and out-of-state applicants. Finally, the court engaged in Pike's balancing test and determined there is no undue burden on interstate commerce, as the appellants' asserted arguments do not outweigh the purpose of the CON program.

Extended Summary: Appellants, Colon Health Centers and Progressive Radiology, are out-of-state medical imaging service providers who applied for a certificate of need to operate in Virginia. The Virginia CON Program governs establishment and expansion of certain medical facilities inside the state and requires applicants to prove that there is public need for their proposed medical venture to prevent redundant accretion of medical facilities, protect the economic viability of existing providers, promote indigent care, and assist cost-effective health care spending.

When appellants' CON applications were rejected, they challenged the constitutionality of the program, claiming that it violates the Dormant Commerce Clause, and the Fourteenth Amendment's Equal Protection, Due Process, and Privileges and Immunities Clauses. The United States District Court for the Eastern District of Virginia dismissed the suit for failure to state a claim upon which relief could be granted. The Fourth Circuit affirmed the dismissal of the Fourteenth Amendment claims on appeal, but reversed and remanded the Commerce Clause issue for further factual development. The district court ultimately granted summary judgment in favor of the Commonwealth. Appellants urged the Fourth Circuit to reverse the decision, arguing that the CON program unconstitutionally violates the Dormant Commerce Clause by either a) discriminating against interstate commerce in both purpose and effect or b) placing and undue burden on interstate commerce.

While the Commerce Clause grants Congress the power to regulate commerce among the states, implicit in that grant is Congress' dormant ability to limit the power of a state to erect barriers against interstate trade by discriminating against and burdening out-of-state competitors. A state discriminates against interstate commerce in three ways: facially, in practical effect, and in its purpose. The parties agreed there was no facial discrimination in this case. The appellants instead argued the CON program discriminated in purpose because the goal of the program is to shelter in-state providers from competition at the expense of out-of-state businesses seeking entry into the market. The Fourth Circuit rejected this argument because CON programs serve an array of legitimate purposes. Alternatively, appellants argued that the CON program was discriminatory in effect because the different stages of approval in the process enabled local firms to thwart and stymie the applications of out-of-state firms. The court rejected this argument as well because the Commonwealth's expert pointed out that in 2014 both the application process and its results showed no appreciable difference in the treatment of in-state and out-of-state medical firms in Virginia.

Finally, the court engaged in Pike's balancing test to determine whether Virginia's CON program places an undue burden on interstate commerce. The Pike balancing test weighs the putative local benefits against incidental burdens on interstate commerce under a rational basis standard of review. The court rejected appellants' arguments that the CON program creates anticompetitive risks and is unsuccessful at containing healthcare costs, finding instead that Virginia had weighty interests in taking regulatory steps to counter perceived gaps and inefficiencies in the healthcare market. While the court noted that appellants' arguments were reasonable, it concluded the Virginia General Assembly would be a more appropriate forum for airing them.

To read the full opinion, click here.

Panel: Wilkinson, King, and Wynn, Circuit Judges

Argument Date: December 10, 2015

Date of Issued Opinion: January 21, 2016

Docket Number: Case No. 14-2283

Decided: Affirmed by published opinion

Case Alert Author: Nakisha Small, Univ. of Maryland Carey School of Law

Counsel: Darpana Sheth, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants. Stuart Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Robert J. McNamara, William H. Mellor, Mahesha P. Subbaraman, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants. Mark R. Herring, Attorney General, Cynthia V. Bailey, Deputy Attorney General, Christy W. Monolo, Assistant Attorney General, Carly L. Rush, Assistant Attorney General, Farnaz F. Thompson, Assistant Attorney General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. Milad Emam, WILEY REIN LLP, Washington, D.C., for Amici Shenandoah Independent Practice Association and Shenandoah Surgeons LLC. Jared M. Bona, Aaron R. Gott, BONA LAW P.C., La Jolla, California, for Amici Scholars of Economics and Scholars of Law and Economics. Robert W. Ferguson, Attorney General, Alan D. Copsey, Deputy Solicitor General, Richard A. McCartan, Senior Counsel, OFFICE OF THE ATTORNEY GENERAL OF WASHINGTON, Olympia, Washington; Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona; Douglas S. Chin, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF HAWAII, Honolulu, Hawaii; Jim Hood, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MISSISSIPPI, Jackson, Mississippi; William H. Sorrell, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VERMONT, Montpelier, Vermont, for Amici States of Washington, Arizona, Hawaii, Mississippi and Vermont. James J. O'Keeffe, IV, JOHNSON, ROSEN & O'KEEFFE, LLC, Roanoke, Virginia; Jamie Baskerville Martin, Jeremy A. Ball, Jennifer L. Ligon, MCCANDLISH HOLTON, Richmond, Virginia, for Amici Virginia Hospital & Healthcare Association and Virginia Health Care Association.

Author of Opinion: Judge Wilkinson

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 07:26 PM     4th Circuit     Comments (0)  

  Askew v. HRFC, LLC -- Fourth Circuit
1000% Interest Rate Listed in Your Loan Agreement? No Problem! - Fourth Circuit Says No Violation As Long As Creditor Charges Less than Statutory Maximum

Areas of Law: Consumer Protection

Issues Presented: Whether the lower court erred in holding that Hampton Roads Finance Company was not liable for (1) violating the Maryland Credit Grantor Closed End Provisions, (2) breach of contract, and (3) violating the Maryland Consumer Debt Collection Act.

Brief Summary: The Fourth Circuit affirmed the district court's order granting Hampton Roads Finance Company (HRFC) summary judgment on the Maryland Credit Grantor Closed End Provisions (CLEC) and breach of contract claims, but reversed and remanded the district court's order granting HRFC summary judgment on the Maryland Consumer Debt Collection Act (MCDCA) claim.

Detailed Summary: Dante Askew entered into a retail installment sales contract with a car dealership to finance Askew's purchase of a used car in 2008. Eventually, the car dealership transferred the contract to HRFC. The contract charged a 26.99% interest rate, which was over the CLEC maximum interest rate of 24%. HRFC realized the error in August 2010, and within a month sent a letter notifying Askew that the applied interest rate was an error and that HRFC had credited Askew's account $845.40. Subsequently, Askew fell behind on his payments and HRFC took action to collect on his account. HRFC contacted Askew five times between July 2011 and December 2012, and Askew alleged that HRFC threatened him in order to induce payment of the debt. In a law suit challenging HRFC's conduct, Askew specifically alleged that HRFC threatened that (1) it would report him to authorities for fraud, (2) a replevin warrant had been prepared, and (3) his current complaint in this case had been dismissed. HRFC moved for summary judgment, which the district court granted on all three of the claims. The United States Court of Appeals for the Fourth Circuit reviewed each claim independently and ruled on each.

The Fourth Circuit explained that under CLEC provisions creditors in Maryland may choose to make a loan governed under the CLEC if the creditor provides written notice. If CLEC applies, §12-1003(a) sets a maximum interest rate of 24% and requires that "[t]he rate of interest chargeable on a loan must be expressed in the agreement as a simple interest rate or rates." CLEC § 12-1018(a)(2) states that a violating creditor may collect on the principal of the loan, and not any other charges. Additionally, CLEC § 12-1018(b) states that a creditor who knowingly violates CLEC must forfeit to the debtor 3 times the amount of interest, fees, and other charges that were collected in excess. Although CLEC provides ample protection for the unknowing lender, CLEC also includes two safe-harbor provisions, one of which is crucial to the instant case. CLEC § 12-1020 allows a creditor to avoid liability "if, within 60 days after discovering an error and prior to institution of an action under [CLEC] or the receipt of written notice from the borrower, the credit grantor notifies the borrower of the error and makes whatever adjustments are necessary to correct the error." CLEC § 12-1020.

First, Askew claimed that under CLEC § 12-1003(a) HRFC needed to expressly provide in the contract that the interest rate was less than 24% and the number itself must be written on the contract. However, the Fourth Circuit interpreted CLEC § 12-1003(a) to require only that creditors charge less than a 24% interest rate and provide text that explains the interest rate is a simple interest rate. The Fourth Circuit found that even if an agreement states a 1000% interest rate, if in actuality the creditor charges the debtor less than 24% there is not a viable reason to impose liability on that creditor because a debtor "would be pleased to pay a rate 976 percentage points lower than what they agreed to in a contract."

Second, Askew argued that the safe harbor provision ought to begin at the time he entered the contract with HRFC, which would mean the discovery of the error was well past the 60-day period provided to fix the error. The Fourth Circuit delved into the meaning of "discovery" of an error and concluded that the phrase meant when the Defendant actually knew about a mistake. In the instant case, therefore, the 60-day period began to run from the point where HRFC actually knew about charging an interest rate above CLEC's maximum limit.

Askew next argued that HRFC's notice was cryptic and vague because the September 2010 letter did not explicitly identify the CLEC violation and HRFC's cure did not cover the amount CLEC mandates. The Fourth Circuit disagreed and explained the letter was sufficient and HRFC properly re-credited Askew the excess interest rate that amounted to $845.40.

Askew also argued that HRFC violated the MCDCA provisions, and the district court improperly granted HRFC summary judgment without Askew having an opportunity for proper discovery regarding the claim. The Fourth Circuit found that MCDCA § 14-202(6) provides a debtor protection from a debt collector who contacts the debtor in frequency, at unusual hours, or other manners that can be seen as abuse or harassment. Askew identified three particular circumstances in which he alleged HRFC violated MCDCA. The Fourth Circuit agreed with Askew and explained there is a line between truthful or future threats of legal action and false representations that legal action has already been taken against a debtor. Here, the Fourth Circuit ruled that HRFC had informed Askew that it had already taken legal action when in fact it had not. The Fourth Circuit also explained that a reasonable jury could find HRFC liable under MCDCA for abuse or harassment and therefore reversed the district court's order granting summary judgment to HRFC on the MCDCA claim.

Finally, the Fourth Circuit affirmed the district court's grant of summary judgment to HRFC on the breach of contract claim.

To read the full text of this opinion, please click here.

For further information regarding filing a MCDCA claim, please click here.

Panel: Judges Wynn, Diaz, and Davis

Argument Date: 09/15/2015

Date of Issued Opinion: 01/11/2016

Docket Number: No. 14-1384

Decided: Affirmed in part, reversed in part, and remanded by published opinion

Case Alert Author: Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: Cory Lev Zajdel, Z LAW, LLC, Reisterstown, Maryland for Appellant. Kelly Marie Lippincott, CARR MALONEY P.C., Washington, D.C., for Appellee.

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 06:54 PM     4th Circuit     Comments (0)  

  Aikens v. Ingram et al. -- Fourth Circuit
Rights Without Remedies: Suit For Damages For Alleged Constitutional Violations Found Nonjusticiable

Areas of Law: Federal Jurisdiction, Justiciability, Enforcement Act of 1871

Issue Presented: Whether a member of the North Carolina National Guard can sue other members of the North Carolina National Guard in federal court for alleged constitutional rights violations that occurred while the service member was deployed on active duty.

Brief Summary: The United States Court of Appeals for the Fourth Circuit found that a section 1983 civil action for damages initiated by one service member against another for alleged constitutional violations that occurred while the service member was deployed on active duty is not justiciable in federal court.

Extended Summary: In 2003, Aikens, a member of the North Carolina National Guard ("NCNG"), was deployed on active duty to Kuwait. While there, his emails were illegally intercepted by other service members and relayed to NCNG executive officer von Jess, appellee. Von Jess, who was not deployed at the time, referenced the emails in a memorandum addressed to the North Carolina Governor's chief of staff and forwarded the emails to the Department of the Army Inspector General ("DAIG"). The DAIG concluded that, although the emails were obtained improperly, the information within the emails constituted instances of active duty misconduct, which ultimately lead to Aikens losing his federal recognition and his termination from the NCNG.

In 2006, Aikens sued both Ingram and von Jess under 42 U.S.C. section 1983 for an alleged violation of his Fourth Amendment rights. Aikens claimed that Ingram and von Jess encouraged the unconstitutional search and seizure of his emails while he was deployed in Kuwait. At trial, the district court found Aikens' claims nonjusticiable using a four-factor test described in Mindes v. Seaman and granted summary judgment for Ingram and von Jess. The Fourth Circuit affirmed the district court's decision, although under the "incident to service" test in Feres v. United States. The court declined to apply Mindes because, according to the court, Mindes applies to actions seeking equitable relief, not actions seeking damages.

By applying Feres, the Fourth Circuit joined nine other circuits in concluding that the "incident to service" test articulated in that case may bar section 1983 actions. The court explained that, although the Supreme Court has not yet applied Feres to section 1983 actions, the Court has used the "incident to service" test to bar Bivens claims between military personnel. Both Bivens claims and section 1983 claims allege constitutional violations. Also, relief under either claim would interfere with military discipline and decision-making. Citing those similarities, the court extended Feres and found that it may bar section 1983 actions.

Applying Feres, the court found that the alleged Fourth Amendment violation arose out of activity that was incident to service. Recognizing that the test is broad and amorphous, the court explained that because Aikens was deployed on active duty in a war zone and using a military computer to send his emails, the alleged violation was incident to his service in the military. In reaching its conclusion, the court was undeterred by the fact that Aikens was a member of the NCNG and neither in Ingram nor von Jess' chain of command.

Although he fully agreed with the majority opinion, Judge Shedd wrote separately to explain that Aikens' claim was insufficient on other grounds. Aikens failed to present evidence that either Ingram or von Jess were personally involved in the email monitoring. Aikens' case, therefore, was premised on conclusory allegations and summary judgment was proper as a matter of law.

To read the full text of this opinion, please click here.

Panel: Judges Thacker, King, and Shedd

Argument Date: 12/9/2015

Date of Issued Opinion: 01/29/2016; amended on 02/1/2016

Docket Number: 14-2419

Decided: Affirmed by published opinion

Case Alert Author: Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: ARGUED: William Woodward Webb, Sr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant. Gerald Kevin Robbins, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: William Woodward Webb, Jr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Author of Opinion: Judge Thacker

Concurring Opinion:
Judge Shedd

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 06:36 PM     4th Circuit     Comments (0)  

  Central Radio Company, Inc. v. City of Norfolk -- Fourth Circuit
Where There's a Sign, There's a Way: Company to Obtain Nominal Damages from City Due to Unconstitutional Sign Code

Areas of Law: Zoning law

Issue Presented: Whether a former sign code in Norfolk, Virginia, was a content-neutral restriction on speech reviewed under intermediate scrutiny or a content-based restriction subject to strict scrutiny.

Brief Summary: In a published opinion written by Judge Keenan, the United States Court of Appeals for the Fourth Circuit ("the court") held that the former sign code in Norfolk, Virginia, was a content-based restriction subject to strict scrutiny. Further, the court found that the sign code did not meet strict scrutiny because aesthetics and traffic safety are not compelling government interests. Thus, the former sign code was held unconstitutional under the First Amendment and the case was remanded to the district court for a determination of nominal damages.

Extended Summary: In Norfolk, Virginia, a former sign code applied to "any sign within the city which is visible from any street, sidewalk or public or private common open space." The term "sign" excluded any "flag or emblem of any nation, organization of nations, state, city, or any religious organizations," or any "works of art which in no way identify or specifically relate to a product or service." The sign code also implemented sizing restrictions, requiring that temporary signs be no more than 60 feet, and freestanding signs be no more than 75 feet. The city also required citizens to apply for a sign certificate prior to putting up a sign so the city could ensure their sign was in compliance with the sign code prior to display.

There arose an eminent domain dispute between Central Radio Company, Inc. ("Central Radio"), the Plaintiffs in this case, and Norfolk Redevelopment and Housing Authority ("NRHA"). The NRHA was trying to take property from Central Radio to transfer to Old Dominion University. NRHA was unsuccessful in court and subsequently appealed.

While this matter was on appeal, Central Radio put up a sign without applying for a sign certificate that was noncompliant with the sign code. The sign was a 375 square foot banner that had an American flag, Central Radio's logo, and a red circle with a slash across the words "eminent domain abuse." The sign further stated:

"50 years on this street; 78 years in Norfolk; 100 workers; threatened by eminent domain!"

An employee of Old Dominion University observed this sign and complained to a city official. Thereafter, the city's zoning enforcement staff got involved and informed Central Radio that its banner violated the sign code and that it should either take the sign down or adjust it. Central Radio never changed their banner after this warning so the City subsequently issued them citations for displaying an oversized sign and for failing to obtain a sign certificate before installing the sign.

Central Radio filed a civil action to enjoin the city from enforcing the sign code and made three allegations: (1) the sign code was unconstitutional because it subjected Central Radio's display to size and location restrictions but exempted certain "flags or emblems" and "works of art" from any similar limitations and thus, the code constituted content-based restriction that failed to satisfy strict, and even intermediate, scrutiny; (2) the sign code's requirement that citizens obtain a sign certificate prior to putting the sign up is an impermissible prior restraint on speech; and (3) the city selectively applied the sign code to Central Radio in a discriminatory manner.

The district court granted summary judgment to the City, explaining that the sign code was content neutral and thus should be evaluated using intermediate scrutiny. The district court further explained that the sign code was a constitutional exercise of the city's regulatory authority because it was reasonably related to the city's interests in promoting traffic safety and aesthetics. The United States Court of Appeals for the Fourth Circuit initially affirmed this holding, explaining that it was consistent with prior Fourth Circuit precedent. Central Radio then sought review in the United States Supreme Court. On review, the Supreme Court vacated the Fourth Circuit's opinion and remanded the case for reconsideration in light of the Supreme Court's 2015 case Reed v. Town of Gilbert.

On remand, the Fourth Circuit recognized that Reed was a complete departure from prior Fourth Circuit precedent. Using Reed as guidance, the court applied the Reed test to determine whether the former sign code was content-neutral or content-based. The Reed test specifies that "government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Using this test, the Fourth Circuit found the Norfolk sign code applied to particular speech because it exempted government, religious flags, emblems and certain works of art from its prohibition, while disallowing other flags. Because the former sign code is a content-based restriction, strict scrutiny applies and the government must show that the regulation furthered a compelling interest and was narrowly tailored to achieve that interest.

The court held that the government failed to meet strict scrutiny because aesthetics and travel safety are not compelling interests. Moreover, even if the government did meet strict scrutiny, the restriction was not narrowly tailored, but instead was under-inclusive. The court emphasized that the flag of an organization is no greater an eyesore than the flag of a government or religion. Moreover, the city failed to explain how limiting the size of the sign would eliminate threats to traffic safety. As a result, the former sign code was held unconstitutional under the First Amendment. The case was remanded to the district court for a determination of nominal damages to Central Radio.

To read the full opinion, click here.

Panel: Judges Gregory, Agee, and Keenan.

Argument Date: 09/17/2014

Date of Issued Opinion:
01/29/2016

Docket Number: Case No. 13-1997

Decided: Dismissed in part, affirmed in part, reversed in part, and remanded by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Michael Eugene Bindas, INSTITUTE FOR JUSTICE, Bellevue, Washington, for Appellants/Cross-Appellees. Adam Daniel Melita, CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross- Appellant. ON BRIEF: Robert P. Frommer, Erica Smith, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants/Cross- Appellees. Melvin W. Ringer, CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross-Appellant.

Author of Opinion: Judge Keenan

Dissenting Opinion: None

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 12:58 PM     4th Circuit     Comments (0)  

  United States v. Moore and United States v. Latham -- Fourth Circuit
"Let's Kill My Wife:" Ex-husband and Mistress Convicted in Murder-For-Hire Plot

Areas of Law: Criminal Procedure; Constitutional Law; Evidence

Issue Presented: Whether the district court constructively amended the indictment through erroneous jury instructions in violation of the Fifth Amendment and improperly admitted hearsay and character evidence.

Brief Summary: Mr. Latham, a banking executive, divorced his wife. Latham was dating his assistant at the bank, Ms. Moore. Latham and Moore hired two ex-cons, Mr. Wilkinson and Mr. Yenawine to murder Latham's ex-wife. Both Latham and Moore were convicted in district court. Latham was sentenced to 120 months and Moore received 180 months incarceration. At issue here were the following charges for Latham and Moore: (Count 1) conspiracy to travel in interstate commerce "with the intent that a murder be committed for compensation;" and (Count 3) unlawful and wilful travel in interstate commerce "'with intent that a murder be committed' for compensation," both in violation of 18 USC § 1958(a).

Latham and Moore argued the trial judge improperly amended the indictment during jury instructions by making references to interstate commerce "facilities" on multiple occasions. Applying the fatal variance test, the United States Court of Appeals for the Fourth Circuit Court held the district court did not constructively amend the indictment in violation of the Fifth Amendment.

The key question in a fatal variance analysis is whether "a defendant has been tried on charges other than those listed in the indictment." United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994). The Fourth Circuit held that the district court's two references to the "use of facilities" did not constitute a constructive amendment because the bulk of the jury instructions properly tracked the indictment and omitted any mention of the use prong. The court also noted the parties' arguments focused solely on the travel prong.

In addition to the fatal variance claim, Latham and Moore also argued that (1) the district court improperly admitted out-of-court statements made by Yenawine to his ex-cellmate; and (2) the district court erroneously admitted "character evidence" as to Moore. The Fourth Circuit held the statements made by Yenawine to his ex-cellmate were properly admitted under Federal Rule of Evidence 804 in the discretion of the district court. As the to the admission of "character evidence," the Fourth Circuit held that none of the testimony was admitted in error.

Thus, the Fourth Circuit affirmed the district court's findings.

To read the full opinion, click here.

Panel: Chief Judge Traxler, and Judges Motz and Harris.

Argument Date: 12/10/2015

Date of Issued Opinion: 01/20/2016

Docket Number: No. 14-4645

Decided: Affirmed by published opinion.

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Andrew Mackenzie, BARRETT-MACKENZIE, LLC, Greenville, South Carolina; James Arthur Brown, Jr., LAW OFFICES OF JIM BROWN, PA, Beaufort, South Carolina for Appellants. Rhett DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, Nathan S. Williams, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 12:52 PM     4th Circuit     Comments (0)  

February 22, 2016
  Bauer v. Lynch -- Fourth Circuit
So Close Yet So Far: One Failed Push Up Has Potential to Change FBI's Fitness Test

Areas of Law: Employment Discrimination, Civil Action

Issue Presented: Whether the gender-normalized requirements of the FBI's physical fitness test is discriminatory?

Brief Summary: In a published opinion before Judges King and Harris, as well as specially designated United States District Judge Hazel for the District of Maryland, the United States Court of Appeals for the Fourth Circuit ("the court") found the district court did not apply the proper legal rule to determine whether the FBI's physical fitness test is discriminatory. The panel of judges vacated the district court's decision and remanded, stipulating that the question to consider on remand is whether the gender-normalized requirements of the physical fitness test treat men in a different manner than women.

Extended Summary:
In 2008, Jay Bauer applied to the FBI. After satisfying background checks, he was able to gain admission to the academy. In order to become an official FBI agent, however, Jay was subject to a 22-week program in Quantico, Virginia, which consisted of four main components, one being physical fitness. The FBI's physical fitness test, which is also referred to as the PFT, was developed by the FBI in 2003 because unfit trainees were getting injured and impeding the recruitment process. The FBI resolved this issue by making trainees pass the PFT twice, once to gain admission to the academy and again to graduate from the academy.

The FBI had a thorough development process for the PFT. It conducted two pilot studies to make sure the PFT was gender neutral. Several statistical analyses were conducted and the FBI determined that there were differences in physical capabilities between the equally fit sexes, so women should be required to pass lower PFT requirements in each of the four categories. After these collective considerations, the final test became the following: Sit-ups: 38 for men, 35 for women; 300-meter sprint: 52.4 seconds men, 64.9 seconds women; Push-ups: 30 men, 14 women; and 1.5 mile run: 12 min. 42 seconds men, 13 min. 59 seconds women.

Jay Bauer was able to successfully complete the PFT to gain admission to the academy. However, he failed to complete the PFT for graduation. More specifically, Jay was able to pass all portions of the PFT other than the push-up requirement. After five failed attempts at the PFT, the last of which he failed by a single push-up, Bauer was forced to resign. The FBI did give him a choice of how he would like to leave: (1) resign with the possibility of future employment; (2) resign permanently; or (3) be fired. Bauer chose the first option and just two weeks later was offered an FBI position as an Intelligence Analyst in Chicago, which he accepted.

On April 2, 2012, Bauer filed a Title VII action against the Attorney General claiming the gender-normed standards of the PFT were facially discriminatory under two Title VII provisions: (1) 42 U.S.C. 2000e-16(a) (prohibits sex discrimination by federal employers); and (2) 42 U.S.C. 2000e-2(1) (prohibits the use of different cutoff scores on employment tests on the basis of sex). This action was ultimately in front of the Eastern District of Virginia. Both parties filed cross-motions for summary judgment and Bauer prevailed. The district court agreed that the PFT was facially discriminatory because if Bauer was a woman, he would have completed the lesser amount of push-ups and passed the test.

The attorney general appealed this decision to the United States Court of Appeals for the Fourth Circuit, arguing that the district court applied an incorrect legal rule when it assessed the FBI's gender-normalized test standards. More specifically, the attorney general argued that the PFT is not facially discriminatory because it took into account the physiological differences that lead to different performance outcomes in men and women and that the gender-normed standards require the same level of fitness for all trainees. As a result, the attorney general argued that the test does not treat the sexes differently and, therefore, does not violate the two Title VII provisions in question.

This court agreed with the attorney general's contention about the difference in physiology of men and women and that the lower court applied the wrong standard. The court explained that "accommodations addressing physiological differences between the sexes are not necessarily unlawful" and that "equally fit men and women demonstrate their fitness differently." As a result, the court vacated and remanded the district court's decision and articulated that the question to be considered on remand is whether the gender-normalized requirements of the physical fitness test treat men in a different manner than women.

To read the full opinion, click here.

Panel: Judges King, Harris, and Hazel

Argument Date: 09/15/2015

Date of Issued Opinion: 01/11/2016

Docket Number: Case No. 14-2323

Decided: Vacated and remanded by published opinion

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Charles W. Scarborough, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Michelle Reese Andrew, ANDREW LAW GROUP LLC, Wilmette, Illinois, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Marleigh D. Dover, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Paul K. Vickrey, NIRO, HALLER & NIRO, Chicago, Illinois; Craig C. Reilly, Alexandria, Virginia, for Appellee.

Author of Opinion: Judge King

Dissenting Opinion:
None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/22/2016 03:46 PM     4th Circuit     Comments (0)  

  United States v. Vinson -- Fourth Circuit
Domestic Violence Requires Intent: A Misdemeanor Crime of Domestic Violence Cannot Be Committed Through Negligent or Reckless Conduct

Areas of Law: Criminal Law

Issue Presented: Whether a conviction for assault in North Carolina under Gen. Stat. § 14-33 qualifies as a "misdemeanor crime of domestic violence (MCDV)" for the purpose of charging an individual under 18 U.S.C. § 922(g), which prohibits individuals convicted of a MCDV from owning a firearm.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held on rehearing that Rodney Marshall Vinson could not properly be charged with a violation of 18 U.S.C. § 922(g) because his North Carolina conviction for assault did not qualify as a "misdemeanor crime of domestic violence (MCDV)." Because a MCDV must involve the "use or attempted use of physical force," the Fourth Circuit found that a MCDV must involve intentional action. Because at least one interpretation of the North Carolina statute under which Vinson was convicted could result in a conviction based on negligent or reckless conduct without intent, the Fourth Circuit vacated its initial ruling and affirmed the lower court's dismissal of Vinson's indictment.

Extended Summary: Rodney Marshall Vinson was arrested and charged with possession of a firearm by a prohibited person under 18 U.S.C. § 922(g). Because Vinson had been convicted previously of assault in North Carolina, upon his arrest and based on the circumstances of that assault, the government alleged he was prohibited from owning a firearm because his prior assault conviction was a "misdemeanor crime of domestic violence (MCDV)." Vinson was convicted under North Carolina Gen. Stat. § 14-33, which requires that an individual commit an assault "upon a female person by a male person who is at least 18 years old." A misdemeanor crime of domestic violence by definition must have "the use or attempted use of physical force."

The United States District Court for the Eastern District of North Carolina analyzed whether North Carolina Gen. Stat. § 14-33 should be examined using the categorical approach or the modified categorical approach. The section under which Vinson was convicted states that the act may be an "assault, assault and battery, or affray." The categorical approach would treat each of these as different methods of committing the same crime, while the modified categorical approach would treat each as a distinct crime. The district court utilized the categorical approach and found that the "physical force" requirement of 18 U.S.C. § 921(a) meant "violent force." The district court noted that physical force or violent force was not an element of assault as defined by § 14-33. Because the definition of an MCDV was not met in Vinson's case, the district court dismissed the indictment.

The Fourth Circuit initially reversed after the United States Supreme Court's 2014 decision in United States v. Castleman (134 S.Ct. 1405). That decision broadened the definition of physical force and clarified that it was not necessary for "violent force" be present for a state conviction to qualify under the federal law. Vinson petitioned for rehearing on new grounds, arguing that intent was inherent in an MCDV and the North Carolina statute did not always require intent. The Fourth Circuit granted rehearing and permitted Vinson to raise the new issue of law for the first time on appeal.

In this rehearing, the Fourth Circuit considered Leocal v. Ashcroft (543 U.S. 1), a 2004 Supreme Court case that interpreted the "crime of violence" portion of 18 U.S.C. § 16. Specifically, the Court in Leocal looked at the word "use" in that statute and held that "use" in that context involved the intentional availment of force and not any sort of accidental or negligent conduct. The Fourth Circuit reasoned that because this language is largely identical to the language of 18 U.S.C. § 922(g), the logic in Leocal is applicable to Vinson's case.

Based on this, the Fourth Circuit held that it was irrelevant whether the categorical or modified categorical approach was applicable. While North Carolina case law establishes that a defendant must act intentionally to be guilty of assault, that intent can be established by a showing of "culpable negligence." The court found that because North Carolina case law defines culpable negligence to involve "thoughtless disregard," North Carolina Gen. Stat. § 14-33 is not a statute that requires an affirmative "use" of force in every potential conviction. Because each form of assault allows for this conviction absent intentional force, even under the modified categorical approach Vinson's conviction could not qualify as a MCDV.

As a result, the Fourth Circuit reversed its initial holding and upheld the district court's decision to dismiss Vinson's indictment.

To read the full text of this opinion, please click here.

Panel: Traxler, C.J., Gregory, and Agee

Argument Date: 01/27/2015

Date of Issued Opinion: 11/03/15

Docket Number: Case No. 14-4078

Decided: Vacated on rehearing and upheld district court's dismissal of indictment

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Robert Earl Waters, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.

Author of Opinion: Traxler, C.J.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/22/2016 02:12 PM     4th Circuit     Comments (0)  

February 14, 2016
  McFarland v. Wells Fargo Bank -- Fourth Circuit
Homeowners Take Note: Mortgage Loan Contracts May Be Unenforceable Under West Virginia Statute, If Unconscionably Induced

Areas of Law: Business Law, Contracts Law

Issue Presented: Whether under the West Virginia Consumer Credit and Protection Act ("WVCCPA"), a loan can be found to be substantively unconscionable, unconscionably induced, or both, solely on the ground that the loan amount exceeds the property value.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit upheld the United States District Court for the Southern District of West Virginia's holding that a mortgage loan exceeding the home's value cannot be deemed substantively unconscionable on that ground alone. However, the Fourth Circuit also found that the district court erred when it dismissed the loan recipient's separate unconscionable inducement claim on the ground that the recipient had not made a proper showing of substantive unconscionability.

Extended Summary: In 2004, Philip McFarland purchased his home in Hedgesville, West Virginia, for approximately $110,000. In 2006, seeking to combine his $40,000 student and vehicle debt with his mortgage, McFarland entered into two secured loan agreements. The first, the subject of this dispute, was a mortgage agreement with Wells Fargo Bank ("Wells Fargo"), with a principal amount of $181,800 and an adjustable interest rate between 7.75% and 13.75%. The second loan, which is not directly at issue here as the parties reached a settlement, was with Greentree Mortgage Corporation ("Greentree"), a third party mortgage lender, for an interest-only home equity line of credit of $20,000. Prior to the agreements, Greentree appraised McFarland's property at $202,000. However, a 2012 retroactive appraisal showed that McFarland's home was worth just $120,000 in 2006.

In 2012, after several failed mortgage restructure attempts, a 2010 loan modification and years of McFarland falling behind on his payments, Wells Fargo initiated foreclosure proceedings on his home. In order to stop the proceedings, McFarland filed suit against Greentree, Wells Fargo, and U.S. Bank National Association ("U.S. Bank"), a loan trustee, alleging that the Wells Fargo loan was unconscionable under the WVCCPA. McFarland asserted a traditional substantive unconscionability argument - arguing that because the Wells Fargo loan exceeded the property value and did not provide him with a "net tangible benefit," the loan was substantively unconscionable. McFarland also raised a novel unconscionable inducement argument asserting that the loan was induced by misrepresentation as evidenced by the inflated 2006 home appraisal.

The district court granted the lenders' motion for summary judgment and dismissed McFarland's unconscionability claims on the ground that a loan's size alone without unfairness in the specific loan terms does not amount to substantive unconscionability. Moreover, the district court concluded that since McFarland was not able to make a showing of substantive unconscionability, which is required under West Virginia's unconscionability doctrine, there was no need to even consider his unconscionable inducement argument regarding the process that led to the loan contract's formation. McFarland appealed.

The Fourth Circuit affirmed the district court's decision on McFarland's substantive unconscionability claim finding that the loan was not one-sided because it benefited McFarland by providing him with the money that he requested, and the loan exposed all parties to risk (not just McFarland). The court also affirmed the lower court's conclusion that cancelling the debt altogether, thereby relieving McFarland of his debt, was not a permissible remedy under West Virginia law and the "net tangible benefit" test was not relevant as that test would have applied to fees that McFarland had not challenged.

However, the Fourth Circuit remanded the district court's ruling on McFarland's unconscionable inducement claim, ordering the lower court to consider McFarland's unconscionable inducement evidence and to determine if it allowed him to proceed against the lenders. The Fourth Circuit found that although the matter had not yet been fully settled under West Virginia law, the West Virginia Supreme Court of Appeals might rule that the WVCCPA authorized a stand-alone unconscionable inducement claim that did not require a showing of substantive unconscionability.

The Fourth Circuit based its finding on a prior West Virginia Supreme Court of Appeals case that strongly indicated the WVCCPA allows for unconscionable inducement claims separate and apart from substantive unconscionability. The Fourth Circuit also concluded that the comments to the Uniform Consumer Credit Code (UCCC), which are highly relevant to construction of the WVCCPA, indicate that a stand-alone unconscionable inducement claim does exist.

The Fourth Circuit also vacated and remanded the district court's order on a separate count of McFarland's complaint that sought to hold the lenders' liable for unconscionable contracting under agency and joint venture theories.

To read the full text of this opinion, please click here.

Panel: Judges Shedd, Diaz, and Harris

Argument Date: 10/28/15

Date of Issued Opinion: 01/15/16

Docket Number: Case No. 14-2126

Decided: Affirmed in part, vacated in part, and remanded by published opinion.

Case Alert Author: Simone Chukwuezi, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Jennifer S. Wagner, MOUNTAIN STATE JUSTICE, INC., Clarksburg, West Virginia, for Appellant. John Curtis Lynch, TROUTMAN SANDERS LLP, Virginia Beach, Virginia, for Appellees. ON BRIEF: Bren J. Pomponio, MOUNTAIN STATE JUSTICE, INC., Charleston, West Virginia, for Appellant. Jason Manning, Megan Burns, TROUTMAN SANDERS LLP, Virginia Beach, Virginia, for Appellees. Jason E. Causey, BORDAS & BORDAS, PLLC, St. Clairsville, Ohio; Jonathan Marshall, Patricia M. Kipnis, BAILEY & GLASSER, LLP, Charleston, West Virginia, for Amici The National Consumer Law Center, AARP, The National Association of Consumer Advocates, and The Center for Responsible Lending. Floyd E. Boone, Jr., Stuart A. McMillan, Sandra M. Murphy, James E. Scott, BOWLES RICE LLP, Charleston, West Virginia, for Amici Community Bankers of West Virginia, Inc. and The West Virginia Bankers Association, Inc.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/14/2016 02:52 PM     1st Circuit     Comments (0)  

February 12, 2016
  J.H. v. Bernalillo County - Tenth Circuit
Case Name: J.H. v. Bernalillo County

Headline: Tenth Circuit Holds Schoolhouse Arrest of Special Education Student Did not Violate Fourth Amendment or ADA

Area of Law: Fourth Amendment, Americans With Disabilities Act

Issue Presented: Whether a school officer: 1) had probable cause to arrest a special needs child who kicked a teacher; 2) used excessive force in handcuffing the child and transporting her to the juvenile detention center; 3) discriminated against the child on the basis of disability; and 4) failed to reasonably accommodate the child during an arrest and transport.

Brief Summary:

After observing 11 year-old special needs student (Child) kick a teacher, a school resource officer handcuffed and transported Child to a juvenile detention center. Child's Mother sued the officer and his employer, Bernalillo County, for violations of the Fourth and Fourteenth Amendments and Americans with Disabilities Act (ADA) via 42 U.S.C. § 1983. The district court dismissed the due process claim and granted summary judgment to Defendants on the remaining claims.

Mother appealed. The Tenth Circuit affirmed, holding with respect to the constitutional arguments that the officer had probable cause to arrest Child after she committed a crime and did not use excessive force. The Tenth Circuit also rejected the ADA arguments because there was no reason for the officer to believe Child lacked the necessary scienter and Child never asked for an accommodation.

Extended Summary:

A school officer observed an 11 year-old special needs student (Child) kick a teacher. Since battery of a school official is a crime, the officer handcuffed and transported Child to a juvenile detention center. Child's Mother sued the officer and his employer, Bernalillo County, under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment, Due Process Clause of the Fourteenth Amendment, and Americans with Disabilities Act (ADA). She asserted that the officer arrested Child without probable cause and used excessive force in handcuffing and transporting Child to a juvenile detention center. And the officer discriminated against Child for having a disability and failed to reasonably accommodate Child's disability.

The district court dismissed the due process claim because the factual allegations did not implicate the Fourteenth Amendment. The district court also granted summary judgment to Defendants on the Fourth Amendment and ADA claims on qualified immunity grounds. Mother appealed.

First, the Tenth Circuit held that once Child committed a crime by kicking the teacher, the officer had probable cause to arrest her. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Second, the Tenth Circuit held that the officer did not apply excessive force because the officer could restrict Child's freedom of movement by handcuffing her. See Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1156 (D.C.Cir.2004). Also, state law authorized the officer to take her to a detention center as opposed to taking her to her parents. See NMSA 1978, §§ 32A-210(A)(1), (A)(3).

Third, the Tenth Circuit agreed that the officer did not violate the ADA, as the officer properly arrested Child on the basis that she committed a crime, not on the basis of her disability. See Roberts v. City of Omaha, 723 F.3d 966, 973-74 (8th Cir.2013); see also 42 U.S.C. § 12132.

Fourth, the Tenth Circuit held that the officer did not fail to reasonably accommodate Child's learning disability because he did not know, or have reason to know, that Child was an individual with a disability needing accommodations. See Robertson v. Las Animas Cty. Sheriff's Dep't, 500 F.3d 1185, 1996 (10th Cir.2007); see also 42 U.S.C. § 12112(b)(5)(A).

Additionally, the Tenth Circuit affirmed dismissal of the Due Process claim because actions for excessive force and unlawful arrest are governed by the Fourth Amendment, not the Fourteenth. See Estate of Booker v. Gomez, 745 F.3d 405 (10th Cir.2014). The Tenth Circuit also rejected claims against Bernalillo County for inadequate training because an employer is not liable unless the employee commits a constitutional or statutory violation. See Estate of Ellis v. Odgen City, 589 F.3d 1099, 1104-05 (10th Cir.2009). There was no such violation here.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-2068.pdf

Panel: Bacharach, Ebel, and McHugh

Date of Issued Opinion: November 27, 2015

Docket Number: No. 14-2068

Decided: The Tenth Circuit affirmed the district court's dismissal and grant of summary judgment in favor of defendants.

Case Alert Author: Veronica C. Gonzales

Counsel:

Joseph P. Kennedy, Kennedy Kennedy & Ives, Albuquerque, New Mexico (Shannon L. Kennedy and Michael L. Timm, Jr., Kennedy Kennedy & Ives, Albuquerque, New Mexico, with him on the briefs), for Plaintiff-Appellant.

Luis Robles, Robles, Rael & Anaya, Albuquerque, New Mexico (Taylor S. Rahn, Robles, Rael & Anaya, Albuquerque, New Mexico, with him on the briefs), for Defendants-Appellees.

Author of Opinion: Hon. Robert E. Bacharach

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/12/2016 12:14 AM     10th Circuit     Comments (0)  

  U.S. v. Snowden - Tenth Circuit
Case Name: U.S. v. Snowden

Headline: Tenth Circuit Holds Possible $1.5 million Error in Sentencing Calculations Was Harmless

Area of Law: Criminal Procedure, Sentencing

Issue Presented: Whether the district court erred in calculating the sentencing enhancement based on a calculation of loss that was the sum of the pecuniary costs and the costs to develop a proprietary database. And if so, whether the error was harmless.

Brief Summary:

Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails. The district court found that because these crimes caused over one million dollars in losses, a 16-level sentencing enhancement was appropriate. The resulting guideline range was 41-51 months in prison, though the court varied downward and imposed a 30-month sentence.

Defendant appealed, arguing that the loss amount mistakenly included the $1.5 million cost to develop the proprietary database he hacked into and, consequently, the sentencing range was too high. The Tenth Circuit, without determining whether the loss calculation was improper, held that any perceived error was harmless because the district court unequivocally stated it would still impose a 30-month sentence even under a lower guideline range. The Tenth Circuit affirmed.

Extended Summary:

Since 2005, Onyx, M.D., Inc., a physician-staffing agency, developed a proprietary database. Defendant was a former employee who, a year after being terminated, obtained an executive's password and copied information out of the database to help him compete with Onyx. Defendant also intercepted over 20,000 emails to and from four Onyx executives. Onyx eventually noticed the hack, which the FBI traced to Defendant's address. Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails.

At sentencing, the district court determined that Onyx's losses were 1) $25,000 monetary harm in responding to the hack, and 2) $1.5 million in costs to develop the database. This resulted in a 16-level increase and guideline range of 41-51 months.

Defendant argued that the proper loss amount was $25,000, which would call for a 4-level increase and guideline range of 8-14 months. The district court disagreed and varied downward to impose a 30-month sentence, stating that even under a lower range it would impose a 30-month sentence with an upward variance. Defendant appealed.

First, the Tenth Circuit considered whether the district court properly calculated Onyx's losses. The Tenth Circuit looked to the guidelines commentary, which defined actual loss as the reasonably foreseeable pecuniary harm (meaning monetary harm) resulting from the offense. See USSG § 2B1.1 cmt. n.3(A)(i), (iii).

The Tenth Circuit held that the $1.5 million development cost was not adequately tied to any actual loss suffered by Onyx. Interpreting the commentary to require a district court to not only take into account the cost of developing trade secrets, but to substitute the development cost for the loss calculation contradicts the guideline's emphasis on actual losses. Without explicitly reversing, the Tenth Circuit stated its reluctance to affirm the offense level and corresponding guideline range.

Second, the Tenth Circuit held that any alleged error in the loss calculation was harmless. In the rare situation where there is harmless error in the loss calculation, it is because the error did not affect the sentence imposed by the district court. See U.S. v. Glover, 413 F.3d 1206, 1210 (10th Cir.2005). Here, the sentence was not affected because the district court clearly expressed that it would impose a 30-month sentence as an upward variance even if the correct range was lower.

Moreover, the Tenth Circuit held that the district court properly gave more than a boiler plate or perfunctory explanation for why it would exercise an upward variance. See U.S. v. Pena-Hermosillo, 522 F.3d 1108, 1117-18 (10th Cir.2008). The court relied on specific factors from 18 U.S.C. § 3553(a). Since the district court is not otherwise required to sentence within the guideline range, see U.S. v. Booker, 543 U.S. 220 (2005), a remand was inappropriate. The Tenth Circuit held that any error was harmless and affirmed the district court's sentence.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-1107.pdf

Panel: Tymkovich, Hartz, and Baldock

Date of Issued Opinion: November 27, 2015

Docket Number: No. 15-1107

Decided: The Tenth Circuit affirmed the sentence imposed by the district court.

Case Alert Author: Veronica C. Gonzales

Counsel:

O. Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.

Paul Farley, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff - Appellee.

Author of Opinion: Hon. Harris L. Hartz

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/12/2016 12:08 AM     10th Circuit     Comments (0)  

  U.S. v. Snowden - Tenth Circuit
Case Name: U.S. v. Snowden

Headline: Tenth Circuit Holds Possible $1.5 million Error in Sentencing Calculations Was Harmless

Area of Law: Criminal Procedure, Sentencing

Issue Presented: Whether the district court erred in calculating the sentencing enhancement based on a calculation of loss that was the sum of the pecuniary costs and the costs to develop a proprietary database. And if so, whether the error was harmless.

Brief Summary:

Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails. The district court found that because these crimes caused over one million dollars in losses, a 16-level sentencing enhancement was appropriate. The resulting guideline range was 41-51 months in prison, though the court varied downward and imposed a 30-month sentence.

Defendant appealed, arguing that the loss amount mistakenly included the $1.5 million cost to develop the proprietary database he hacked into and, consequently, the sentencing range was too high. The Tenth Circuit, without determining whether the loss calculation was improper, held that any perceived error was harmless because the district court unequivocally stated it would still impose a 30-month sentence even under a lower guideline range. The Tenth Circuit affirmed.

Extended Summary:

Since 2005, Onyx, M.D., Inc., a physician-staffing agency, developed a proprietary database. Defendant was a former employee who, a year after being terminated, obtained an executive's password and copied information out of the database to help him compete with Onyx. Defendant also intercepted over 20,000 emails to and from four Onyx executives. Onyx eventually noticed the hack, which the FBI traced to Defendant's address. Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails.

At sentencing, the district court determined that Onyx's losses were 1) $25,000 monetary harm in responding to the hack, and 2) $1.5 million in costs to develop the database. This resulted in a 16-level increase and guideline range of 41-51 months.

Defendant argued that the proper loss amount was $25,000, which would call for a 4-level increase and guideline range of 8-14 months. The district court disagreed and varied downward to impose a 30-month sentence, stating that even under a lower range it would impose a 30-month sentence with an upward variance. Defendant appealed.

First, the Tenth Circuit considered whether the district court properly calculated Onyx's losses. The Tenth Circuit looked to the guidelines commentary, which defined actual loss as the reasonably foreseeable pecuniary harm (meaning monetary harm) resulting from the offense. See USSG § 2B1.1 cmt. n.3(A)(i), (iii).

The Tenth Circuit held that the $1.5 million development cost was not adequately tied to any actual loss suffered by Onyx. Interpreting the commentary to require a district court to not only take into account the cost of developing trade secrets, but to substitute the development cost for the loss calculation contradicts the guideline's emphasis on actual losses. Without explicitly reversing, the Tenth Circuit stated its reluctance to affirm the offense level and corresponding guideline range.

Second, the Tenth Circuit held that any alleged error in the loss calculation was harmless. In the rare situation where there is harmless error in the loss calculation, it is because the error did not affect the sentence imposed by the district court. See U.S. v. Glover, 413 F.3d 1206, 1210 (10th Cir.2005). Here, the sentence was not affected because the district court clearly expressed that it would impose a 30-month sentence as an upward variance even if the correct range was lower.

Moreover, the Tenth Circuit held that the district court properly gave more than a boiler plate or perfunctory explanation for why it would exercise an upward variance. See U.S. v. Pena-Hermosillo, 522 F.3d 1108, 1117-18 (10th Cir.2008). The court relied on specific factors from 18 U.S.C. § 3553(a). Since the district court is not otherwise required to sentence within the guideline range, see U.S. v. Booker, 543 U.S. 220 (2005), a remand was inappropriate. The Tenth Circuit held that any error was harmless and affirmed the district court's sentence.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-1107.pdf

Panel: Tymkovich, Hartz, and Baldock

Date of Issued Opinion: November 27, 2015

Docket Number: No. 15-1107

Decided: The Tenth Circuit affirmed the sentence imposed by the district court.

Case Alert Author: Veronica C. Gonzales

Counsel:

O. Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.

Paul Farley, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff - Appellee.

Author of Opinion: Hon. Harris L. Hartz

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/12/2016 12:02 AM     1st Circuit     Comments (0)  

February 11, 2016
  U.S. v. Cunningham - Tenth Circuit
Case Name: U.S. v. Cunningham (non-precedential)

Headline: Tenth Circuit Applies New Supreme Court Case Holding That Officer's Mistake of Law Excuses Improper Stop

Area of Law: Criminal Procedure, Fourth Amendment

Issue Presented: Whether the officer made an objectively reasonable mistake of law that would justify an otherwise invalid traffic stop.

Brief Summary:

An officer stopped a vehicle because of the driver's failure to signal prior to turning onto a public street. The front seat passenger, Defendant, was indicted for being a felon in possession of a firearm. Defendant filed a motion to suppress on the grounds that the driver's conduct was not prohibited by the Colorado statute. The district court denied the motion to suppress, holding that the stop was justified based on a traffic violation.

Defendant appealed. Following the district court's judgment, the Supreme Court of the United States ruled in Helen v. North Carolina, 135 S.Ct. 530, 539 (2014) that an officer's mistake of law can justify a traffic stop as long as the mistake is objectively reasonable. Relying on Helen, the Tenth Circuit affirmed, holding that the officer's mistake was objectively reasonable because the statute was ambiguous.

Extended Summary:

An officer stopped a vehicle as it was exiting a motel parking lot because the driver failed to signal her intention to turn onto a public street, contra Colo. Rev. Stat. § 42-4-903(1). The front seat passenger, Defendant, was indicted for being a felon in possession of a firearm. He filed a motion to suppress, arguing that the statute did not prohibit the driver's conduct, the traffic stop was thereby invalid, and as a result the firearm and statements were obtained in violation of the Fourth Amendment. Defendant argued that the officer's mistake of law, even if reasonable, invalidated the stop.

The district court found that the driver committed a traffic violation under Colorado law and that the stop was not based on a mistake of law. The court denied Defendant's motion to suppress. Defendant appealed.

The issue before the Tenth Circuit was whether the traffic stop and seizure were permissible under the Fourth Amendment. After the district court's ruling, the Supreme Court of the United States decided Helen v. North Carolina, 135 S.Ct. 530, 539 (2014). There, the Supreme Court held that an officer's mistake of law does not invalidate a traffic stop so long as the mistake is objectively reasonable.

The Tenth Circuit held that the officer's interpretation of Colorado law as requiring a turn signal was objectively reasonable and so then was the stop. First, the statute is genuinely ambiguous and the highest court in Colorado has not interpreted it. Second, like Sigrist v. Love, 510 P.2d 456, 457 (Colo.App.1973), the Tenth Circuit can apply a state traffic law to a driver entering a public street. Third, the divide among Colorado district courts in interpreting this law provided further evidence of the ambiguity in the statute.

The Tenth Circuit also interpreted the statute to require the driver to signal her intent to turn. Though the statute only expressly requires a signal when entering a private road, but not exiting, a residual clause requires a signal when turning from a direct course, roadway or not. Additionally, even though the statute ordinarily does not apply to a private road or driveway, the conduct here did not occur exclusively on a private road. It involved the use of a street governed by state law. Accordingly, the Tenth Circuit affirmed the district court's denial of Defendant's motion to suppress.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-1042.pdfhttps://www.ca10.uscourts.gov/opinions/15/15-1042.pdf

Panel: Gorsuch, O'Brien, and Bacharach

Date of Issued Opinion: November 24, 2015

Docket Number: No. 15-1042

Decided: The Tenth Circuit affirmed the district court's denial of Defendant's motion to suppress.

Case Alert Author: Veronica C. Gonzales

Counsel:

Robert Mark Russel, David A. Tonini, Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.

Antony Mark Noble, Noble Law Firm, LLC, Lakewood, CO, for Defendant - Appellant.

Author of Opinion: Hon. Terrence L. O'Brien

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/11/2016 11:50 PM     10th Circuit     Comments (0)  

February 9, 2016
  Center For Auto Safety v. Chrysler Group, LLC. -
Headnote: Ninth Circuit panel held that, in light of the strong presumption for public access to court records, defendant Chrysler Group ("Chrysler") must demonstrate "compelling reasons" to keep sealed documents that were attached to class action plaintiffs' preliminary injunction motion, finding that the preliminary injunction motion, while not technically "dispositive," is nevertheless "more than tangentially related to the merits of a case."

Areas of Law: Civil Procedure; Documents Under Seal

Issue Presented: In ruling on a motion to unseal documents, what is the appropriate test to be applied to determine when documents that were produced under seal during discovery, and subsequently attached to a preliminary injunction motion, can be unsealed and made available to the public?

Significance: Ninth Circuit panel's holding makes it more difficult for corporations sued for selling defective products to conceal those defects from the public by settling those lawsuits before the court reaches a final determination on the merits and then having the court seal the records.

Brief Summary:

Plaintiffs filed a class action against Chrysler for alleged defects in some of its vehicles and filed a motion for a preliminary injunction to require Chrysler to notify its customers of the threat presented by its defective vehicles. Plaintiffs and Chrysler attached "confidential" discovery documents to their memoranda supporting and opposing the motion. These documents were then filed under seal. Shortly before the district court denied plaintiffs' motion for a preliminary injunction, plaintiff-intervenor, the Center for Auto Safety ("CAS"), filed a motion to unseal the documents that were attached to the class action plaintiffs' preliminary injunction motion. The district court denied the motion to unseal, finding that the preliminary injunction motion was "nondispositive" and, therefore, Chrysler only needed to show "good cause" to keep the records sealed. The Ninth Circuit panel vacated the district court's denial, rejecting the dispositive/nondispositive test under which a party seeking to keep documents sealed must demonstrate "compelling reasons" only in those cases where the motion at issue is literally "dispositive" meaning that it brings about a "final determination." The panel found that even technically nondispositive motions may nevertheless be more than tangentially related to the merits of the case and, therefore, a party seeking to keep sealed documents attached to such motions demonstrate compelling reasons therefor . The panel also found that the class action plaintiffs' preliminary injunction motion, while not technically dispositive, was "more than tangentially related to the merits of the case." On remand, Chrysler must demonstrate to the district court compelling reasons for keeping the records under seal.

Extended Summary:

Plaintiffs filed a putative class action alleging defects in certain Chrysler vehicles. During discovery, the parties stipulated to a protective order that permitted each party to designate certain documents as confidential and required any party that later wished to attach a "confidential" document to a court pleading to apply to do so under seal. Plaintiffs later moved for a preliminary injunction to require Chrysler to notify its customers of the alleged risks its vehicles presented. Both parties attached confidential documents to their memoranda supporting and opposing the motion and moved the district court to file the documents under seal. The court granted the motions. Before the district court ruled on the preliminary injunction motion, CAS moved to intervene and unseal the confidential documents attached to support and oppose the preliminary injunction motion. CAS argued the documents could not be kept under seal unless Chrysler met the "compelling reason" standard, while Chrysler contended it need only show "good cause." The district court applied the less exacting "good cause" standard and ultimately found Chrysler met this lower bar.

To support its ruling, the district court relied on past Ninth Circuit cases that stated a party attempting to keep records attached to a "nondispositive motion" under seal need only show good cause. The district court defined a dispositive motion as one that could lead to a final determination on some issue. Applying the dispositive test, the district court held the preliminary injunction to inform Chrysler's customers of the potential dangers would not lead to a final determination on an issue and thus applied the less exacting good cause standard.

On appeal, the Ninth Circuit panel rejected the mechanical dispositive/nondispositive test applied by the district court. The panel ruled that "public access will turn on whether the motion is more than tangentially related to the merits of a case." The panel noted that, while some nondispositive motions are unrelated, or merely tangentially related, to the merits of a case, "plenty [of] other non-dispositive motions - including routine motions in limine - are strongly correlative to the merits of a case." Limiting the compelling reasons test to the narrow category of "dispositive motions" goes against the long held and strong presumption in favor of public access to court records. A party seeking to seal judicial records bears the heavy burden of overcoming the strong presumption of public access by demonstrating compelling reasons. When deciding whether documents should be kept under seal, the court must balance the competing interest of the public and the party seeking to keep certain records secret.

The panel held that plaintiffs' preliminary injunction was more than tangentially related to the merits of the case. Plaintiffs had demanded in their complaint, inter alia, injunctive relief including an order requiring Chrysler to notify and repair the vehicle defect. The preliminary injunction requested Chrysler disclose the pending litigation to their customers. The panel observed: "If plaintiffs had succeeded in their motion for preliminary injunction, they would have won a portion of the injunctive they requested in the underlying complaint, and that portion of their claims would have been resolved." For that reason, the preliminary injunction motion was more than tangentially related to the merits of the case and, therefore, on remand, Chrysler must demonstrate compelling reasons for keeping the documents sealed.

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/15-55084.pdf

Panel: Sandra S. Ikuta and John B. Owens, Circuit Judges and William K. Sessions, District Judge.

Argument Date: October 20, 2015

Date of Issued Opinion: January 11, 2016

Docket Number: 15-55084

Decided: Vacated and Remanded

Case Alert Author: Brian D. Shapiro

Counsel:
Jennifer D. Bennett (argued) and Leslie A. Bailey, Public Justice PC, Oakland, California, for Intervenor-Appellant.

Thomas H. Dupree, Jr. (argued) and Sarah G. Boyce, Gibson, Dunn & Crutcher LLP, Washington, D.C.; Kathy A. Wisniewski, John W. Rogers, and Stephen A. D'Aunoy, Thompson Coburn LLP, St. Louis, Missouri; Rowena Santos, Thompson Coburn LLP, Los Angeles, California, for Defendant-Appellee.

Author of Opinion: Judge Owens

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 02/09/2016 03:00 PM     9th Circuit     Comments (0)  

February 8, 2016
  Hall v. Greystar Management Services, L.P., et al. -- Fourth Circuit
Versailles Is Not Your Palace: Conversion Claim Survives After Apartment Complex Destroys 15,000 Pounds of Ex-Tenant's Belongings

Areas of Law: Civil Procedure

Issue Presented: Whether the district court abused its discretion when it dismissed Hall's complaint and denied her motions to reconsider and amend.

Brief Summary: Hall was notified by Greystar Management Services, the owner of her apartment complex, that she could no longer use a storage unit to store items for her service dog because the items created a fire code violation. She also eventually learned that her lease would not be renewed. Hall was subsequently evicted. Hall filed suit against Greystar Management, PSN Landscaping and Lieutenant Richard Kelly but the district court granted the defendants' motion to dismiss. Hall then filed a motion to amend her complaint. This was also denied. She then appealed to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit found that the district court did not abuse its discretion when it denied Hall's amended retaliation claim but the district court did abuse its discretion when it denied Hall's amended conversion claim.

Extended Summary:
Hall and her service dog lived in the Versailles apartments in Towson, Maryland from 2005 until 2011. During this time Hall used a storage unit to store things for her service dog. In 2009, Greystar Management Services (GMS) acquired Versailles and in August 2010, GMS told Hall her use of the storage unit created a fire code violation. Hall then asked for a three-bedroom apartment so she would have space to keep her dog's things.

While Hall was waiting on the requested three-bedroom, in December 2010, GMS removed Hall's property from the storage unit and placed it in dumpsters. GMS also informed Hall that her lease would not be renewed. She was instructed to vacate her apartment by April 30, 2011. In February 2011, Hall filed complaints with the Department of Housing and Urban Development (HUD), the U.S. Department of Justice, and the Maryland Commission on Civil Rights. After the complaints were filed, GMS told Hall there were no three-bedroom units available. After the April 30, 2011 deadline, Hall continued to rent her apartment on a month-to-month basis while looking for a new apartment.

GMS won a tenant holding over action against Hall and obtained an eviction order in Baltimore County District Court. On November 10, 2011, Hall's appeal was denied so she filed for a stay of enforcement pending a review of the decision by another judge. In the meantime, the movers Hall had hired told her they would not be able to move her things until December. Hall paid the rent for December 2011 and GMS accepted the payment. On or about November 30, 2011, the Circuit Court for Baltimore County denied Hall's motion for stay of enforcement. The next day, GMS had workers remove approximately 15,000 pounds of Hall's belongings. Some of the items were taken to a landfill.

In November 2013, Hall filed suit against GMS, the PSN Landscaping workers who removed her belongings, and Baltimore County Sheriff Lieutenant Richard Kelly, who supervised the eviction. The district court granted the defendants' motions to dismiss. In July 2014, Hall filed motions to alter or amend judgment and for leave to file an amended complaint. The motions were denied by the district court and the amended complaint was found to be "futile on all counts." Specifically, Hall's amended complaint failed to allege a causal connection between the protected activity (filing discrimination complaints) and the adverse action. The court found the amended complaint also failed to allege discriminatory intent. The district court also dismissed Hall's amended conversion claim as futile finding that it failed to "include a plausible claim for damages" and failed to identify the damages for the property removed prior to eviction. Hall appealed this decision.

First, the United States Court of Appeals for the Fourth Circuit found that the district court did not abuse its discretion in denying Hall's motion to amend her retaliation claim. For a retaliation claim, Hall needed to establish that 1) she was engaged in protected activity, 2) GMS was aware of that activity, 3) GMS took adverse action against her, and 4) a causal connection existed between the protected activity and the asserted adverse action. The Fourth Circuit found that Hall satisfied three of these prongs (she was engaged in a protected activity, GMS was aware of that activity, and GMS "acted with malice" when disposing of Hall's property). However, Hall's amended complaint failed to show that GMS took action because of her protected activity; there was no causal connection. Instead the complaint left open for speculation the cause for GMS's decision to destroy her property. Hall's complaint asked the court to infer retaliation, in response to Hall filing the complaints, as the cause for GMS's decision to destroy her property. The court could not infer retaliation from the destruction of the property in the storage unit because it occurred before Hall's protected activity. The court was also unable to infer retaliation from the destruction of the property removed from her apartment because there was a ten-month lapse between Hall's protected activity (filing the HUD complaint in February 2011) and GMS's adverse action (destroying her property from the apartment in December 2011).

Next, the Fourth Circuit considered the district court's denial of Hall's motion to amend the conversion claim. The Fourth Circuit found the issue identified by the district court--that Hall pleaded the same amount of damages in her original and amended complaint despite the court's finding that some property was abandoned--raised an issue of fact on the question of damages. This issue of fact could not be resolved on a motion to dismiss. The Fourth Circuit then examined whether Hall's complaint contained sufficient facts to state a claim of conversion against each defendant. Hall alleged that PSN, directed by GMS's attorney, removed file boxes from in and around Hall's vehicle, her housekeeper's vehicle and her attorney's vehicle. This property was placed on PSN's trucks and taken to a landfill where it was destroyed. The Fourth Circuit found that these facts "nudge Hall's conversion claim against GMS and PSN across the line from conceivable to plausible." The court thus found that the district court did abuse its discretion in denying the motion to amend the conversion claim against GMS and PSN. However, nothing in Hall's complaint alleged that Lieutenant Richard Kelly exerted ownership over her property so she failed to state a claim against Kelly. Hall's final claim was not considered because she failed to raise the issue in the lower court.

To read the full text of this opinion, please click here.

Panel: Judges Motz, Gregory, and Harris

Argument Date: 10/27/15

Date of Issued Opinion: 01/21/16

Docket Number: No. 14-2145

Decided: Affirmed in part, reversed in part, and remanded by unpublished opinion.

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Leslie Robert Stellman, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellant. Michael William Skojec, BALLARD SPAHR LLP, Baltimore, Maryland; Andrew Martin Battista, ANDREW M. BATTISTA, P.A., Towson, Maryland; Michele J. McDonald, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Adam E. Konstas, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellant. Michelle M. McGeogh, BALLARD SPAHR LLP, Baltimore, Maryland, for Appellee Greystar Management Services, L.P. Brian E. Frosh, Attorney General of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee Richard Kelly.

Author of Opinion: Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/08/2016 10:42 AM     4th Circuit     Comments (0)  

February 2, 2016
  United States v. Vernace - Second Circuit
Headline: Second Circuit Affirms the RICO Conviction of Gambino Crime Family Boss

Area of Law: Criminal

Issue Presented: Whether the evidence presented at trial regarding defendant's role in 30-year-old murders and drug trafficking for Gambino crime family was sufficient to sustain the defendant's conviction under the Racketeering Influenced and Corrupt Organizations Act ("RICO").

Brief Summary: Defendant Bartolomeo Vernace was convicted following a jury trial of: (1) conspiring to engage in a racketeering enterprise, in violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c)-(d); 2) using, carrying and possessing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), and 3) operating an illegal gambling business, in violation of 18 U.S.C. § 1955, based upon his role in the 30-year old murders of the owners of Shamrock Bar in Queens, New York (the "Shamrock Murders"). During his trial in the United States District Court for the Eastern District of New York, evidence was presented that Vernace was a member of the Gambino crime family, one of five organized crime families operating at that time in New York City, and that the Gambino crime family engaged in a pattern of criminal enterprises in order to generate money for its members. The trial also established that, at the time of his arrest in 2011, Vernace was a member of the Gambino crime family's three person ruling panel, which placed him in charge of the operations of the organization.

The District Court entered judgment against Vernace and Vernace appealed, claiming that the evidence was insufficient for the jury to find that the predicate Shamrock Murders and additional heroin distribution offenses were related to the RICO conspiracy and that he was convicted under the wrong firearms statute. He also argued that newly discovered evidence mandated a new trial. The United States Court of Appeals for the Second Circuit rejected each of Vernace's arguments and affirmed.

To read the full opinion, please visit http://www.ca2.uscourts.gov/de...7bb3e7ad327/1/hilite/

Extended Summary:
RICO laws are designed to combat organized crime by making it unlawful to engage in a "pattern of racketeering activity." To prove a RICO violation, the government must establish a pattern of at least two predicate racketeering acts, such as murder or drug trafficking, that occur within ten years of each other. In order to prove that the predicate acts constitute a pattern of criminal activity, they must have the "same or similar purposes, results, participants, victims, or methods of commission." However, the government is not required to prove that the predicate offenses were committed in furtherance of the of the organization's activities. At trial, the jury found that Vernace's involvement in the Shamrock Murders and his drug distribution in early 1981 served as the two predicate racketeering acts to convict him of the RICO charge.

On appeal, Vernace argued that there was insufficient evidence to support a RICO violation, since the Shamrock Murders were not related to the activities of the Gambino crime family. The Second Circuit rejected this argument and found that the evidence was sufficient for the jury to infer that the Vernace's participation in the Shamrock Murders was related to the Gambino family's organized crime activities. The Court noted that the Shamrock Murders had occurred as a result of a perceived insult to Gambino associate, Frank Riccardi. Riccardi then contacted Vernace and another Gambino member. All three men then proceeded to the Shamrock Bar and killed the two victims. The Court found that the jury could reasonably
conclude from this evidence that Vernace participated in the Shamrock Murders in order to preserve the Gambino family's reputation as well as his own.

Vernace also argued that the government failed to establish that his alleged heroin distribution in early 1981 had been related to the Gambino crime family. However, the Court rejected this argument, finding that members of the Gambino family were known to distribute drugs in order to increase the profit of their criminal enterprise. As such, it was reasonable for the jury to conclude that the defendant's alleged heroin distribution related to the Gambino crime family.

Vernace next argued that he was convicted and sentenced under an incorrect version of § 924(c), which makes it a crime to use or unlawfully carry a firearm in relation to a felony. Specifically, he argued that the district court erred in applying the recently amended version of § 924(c), which carries a mandatory consecutive sentence, rather than the version that had been in effect in 1981. The Second Circuit concluded that even if the district court erred, the error was harmless as Vernace was sentenced to life imprisonment on the RICO count alone.

Finally, the Second Circuit found that Vernace was not entitled to a new trial on the basis of newly discovered evidence. After the trial, the government had informed the defense that one of the government's witnesses had violated his cooperation agreement. Vernace claimed that this revelation warranted a new trial since the defense could have used this information to impeach the cooperating witness' testimony. The Second Circuit rejected this argument, pointing out that the witness was impeached on a number of prior crimes, and this revelation would not have impacted the outcome of the trial. As such, the district court did not abuse its discretion in refusing to grant Vernace a new trial.

To read the full opinion, please visit http://www.ca2.uscourts.gov/de...7bb3e7ad327/1/hilite/

Panel: Judges Sack, Chin, and Droney

Argument Date: 9/18/2015

Argument Location: New York, New York

Date of Issued Opinion: 2/2/2016

Docket Number: 14-2197-cr

Decided: Affirmed

Case Alert Author: Brian Byrne

Counsel: M. Kristin Mace, Assistant United States Attorney (David C. James, Amy Busa, Evan M. Norris, Amir H. Toossi, Assistant United States Attorneys, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee. Seth Ginsberg, Law Office of Seth Ginsberg, New York, New York, for Defendant‐Appellant.

Author of the Opinion: Judge Chin

Circuit: Second Circuit

Case Alert Circuit Supervisor:
Professor Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 02/02/2016 07:39 PM     2nd Circuit     Comments (0)  

  Simon v. Republic of Hungary
Headline: D.C. Circuit allows suit by Hungarian Holocaust victims to proceed

Area of Law: Foreign Sovereign Immunities Act

Issue(s) Presented: Whether Hungarian nationals can bring claims against the Hungarian government under the Foreign Sovereign Immunities Act for injuries and expropriation of property suffered during World War II.

Brief Summary: Plaintiffs, fourteen survivors of the Hungarian Holocaust, sued the Hungarian government and the state-owned Hungarian railroad alleging that the defendants collaborated with the Nazis to exterminate Hungarian Jews and expropriate their property near the end of World War II. The complaint asserted a variety of causes of action ranging from conversion and unjust enrichment to false imprisonment, torture, and violations of international law. Plaintiffs sought class certification and compensatory and punitive damages, as well as various forms of equitable relief. Defendants moved for dismissal, arguing that the treaty exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1603 et seq., barred plaintiffs' claims because the 1947 Peace Treaty between Hungary and the Allied Powers (including the United States) created a mechanism for Hungarian nationals to seek restitution from the Hungarian government for property rights and interests taken from Holocaust victims, and that any action in U.S. courts seeking recovery for confiscated property necessarily amounted to a challenge to the adequacy of Hungary's compliance with its treaty obligations, a challenge that could only be pursued through the dispute resolution process provided for in the treaty. The U.S. District Court for the District of Columbia agreed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that the treaty exception did not apply and that some of plaintiffs' claims could proceed under FSIA's expropriation exception, 28 U.S.C. § 1605(a)(3), which creates an exception to foreign sovereign immunity for claims involving property "taken in violation of international law." The court concluded that the treaty exception did not bar plaintiffs' claims in this instance because, while the 1947 Peace Treaty imposed an obligation on Hungary to provide a means for its own citizens to seek recovery for wartime wrongs, it did not include language designating the dispute resolution process set out in the treaty as the exclusive means of resolving war-related claims. In the absence of such language, the court determined that the treaty could not be read to prevent Hungarian citizens from bringing claims outside the treaty.

The court further held that claims directly implicating plaintiffs' rights in property could proceed under the expropriation exception. Remanding to the district court to determine "precisely which of the plaintiffs' claims directly implicate property interests or rights to possession," the court determined that the "systematic, wholesale plunder of Jewish property" to which the plaintiffs, along with nearly half a million other Hungarian Jews, had been subjected, amounted to genocide, a clear violation of international law under article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide 78 U.N.T.S. 277 (Dec. 9, 1948). The court rejected defendant's contention that the expropriations of property fell within the "domestic takings rule," under which a foreign sovereign's expropriation of the property of its own nationals does not violate international law, finding the rule wholly inapplicable to the unique circumstances of this case, in which genocide constituted the relevant international law violation.

Judge Henderson concurred, writing separately to "emphasize the baselessness of Hungary's invocation of the Foreign Sovereign Immunities Act."

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/14-7082-1596075.pdf.

Panel: Henderson, Srinivasan, Wilkins

Argument Date: March 10, 2015

Date of Issued Opinion: January 29, 2016

Docket Number: 14-7082

Decided: Reversed

Case Alert Author:
Ripple Weistling

Counsel: Paul G. Gaston, Charles S. Fax, Liesel Schopler, L. Marc Zell, and David H. Weinstein.for appellants.

Konrad L. Cailteux and Gregory Silbert for appellees.

Author of Opinion: Srinivasan

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 02/02/2016 08:27 AM     DC Circuit     Comments (0)  

February 1, 2016
  W. Scott Harkonen, M.D., v. United States Department of Justice and United States Office of Management and Budget - Ninth
Headline: 9th Cir. affirms district court's 12(b)(6) dismissal of action seeking the correction of allegedly false statements the United States Justice Department made about plaintiff in a press release.

Area of Law: Constitutional Law; Information Quality Act
Issues Presented: Whether the Information Quality Act confers the right to judicial review of the Department of Justice's refusal to correct allegedly false and misleading information published by the agency in a press release.

Brief Summary:
Plaintiff, a doctor, was convicted of mail fraud for issuing a press release which promoted a new drug with allegedly false and misleading statements. On the day of plaintiff's conviction, the Department of Justice ("DOJ") issued its own press release that plaintiff alleged to contain false and misleading information. Plaintiff filed suit in district court claiming he was entitled to a redaction of the allegedly false information and removal of the press release from all official government websites under the Information Quality Act ("IQA"). The IQA required government agencies to create guidelines for ensuring that information disseminated is reliable and procedures for correcting previously disseminated false or misleading information. The district court granted the government's 12(b)(6) motion.

The Ninth Circuit panel affirmed the district court's dismissal because the DOJ had excluded all press releases from its guidelines for complying with the IQA. This exclusion was found a proper exercise of the agency's power to interpret the IQA. First, Congress did not unambiguously intend that press releases must be included in their definition of "dissemination". Second, DOJ guidelines closely mirrored the guidelines established by the Office of Management and Budget ("OMB"), which took careful consideration and used input from several sources when making its decision to exclude press releases.

Significance: This holding limits the scope of the Information Quality Act by allowing government-agencies to completely exclude press releases and related communications, and those agencies therefore have no obligation to correct false information released in such a manner.

Extended Summary:

Plaintiff W. Scott Harkonen is a medical doctor who served as the Chief Executive Officer for InterMune, Inc., which developed, marketed and sold drugs. One of these drugs, Actimmune, was approved by the FDA for the treatment of two rare disorders. InterMune then sought to determine whether Actimmune would be effective treating patients with idiopathic pulmonary fibrosis ("IPF"), a different disorder which is more common. After a Phase III clinical trial with 330 patients, the FDA staff told Harkonen that the data was insufficient to grant approval for the use of Actimmune in the treatment of IPF. The data was insufficient because the study did not meet its primary endpoint, as Actimmune had failed to reduce death or disease progression in the entire group of treated subjects.

Harkonen thereafter distributed a press release titled, "InterMune Announces Phase III Data Demonstrating Survival Benefit of Actimmune in IPF." The first paragraph stated that the study, "demonstrate[d] a significant survival benefit in patients with mild to moderate disease randomly assigned to Actimmune versus control treatment" and concluded, "[t]here was also approximately a 10% relative reduction in the rate of progression-free survival associated with Actimmune versus placebo, the trial's primary endpoint, but this was not a statistically significant difference." The third paragraph of the press release quoted Harkonen as stating, "Actimmune may extend the lives of patients suffering from [IPF]." The fourth paragraph quoted a study investigator as stating, "Actimmune should be used early in the course of [IPF] in order to realize the most favorable long-term survival benefit." In the sixth paragraph the press release finally again addressed the failure of the study to reach its primary endpoint when it described the failure as demonstrating "a strong positive trend in increased survival in the overall patient population." Finally, in the tenth paragraph the release quoted an InterMune officer as stating, "[W]e believe [there] is compelling rationale for consideration of Actimmune for the treatment of patients with [IPF]".

Harkonen was indicted on one count of wire fraud for allegedly false statements contained in the press release, and one count of felony misbranding related to alleged off-label marketing and sale of Actimmune for IPF. He was convicted of wire fraud and acquitted for the misbranding count. His conviction was affirmed upon appeal.

On the day Harkonen was convicted, the DOJ issued a press release titled, "W. Scott Harkonen, Former Biotech CEO, Convicted of Wire Fraud." The DOJ press release stated, "Mr. Harkonen lied to the public about the results of a clinical trial and offered false hope to the people stricken with a deadly disease," and also stated, "[t]he actions of this defendant served to divert precious financial resources from the VA's critical mission of providing healthcare to this nation's military veterans." The press release was posted on the DOJ website.

The IQA required the OMB to draft guidelines "that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information . . . disseminated by Federal agencies . . . ." The IQA also required each agency set up its own agency-specific guidelines and to "establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines . . . ." OMB published a set of guidelines which, after receiving input from sources including several Federal Agencies, excluded information distributed through press releases from its definition of "dissemination".

DOJ then issued its own agency-specific guidelines, which closely mirrored the OMB guidelines, and do "not apply to information disseminated in . . . press releases [sic] fact sheets, press conferences or similar communications (in any medium) that announce, support or give public notice of information in DOJ." DOJ expressly stated that their agency-specific guidelines are not regulations and are not legally enforceable.

During the appeal of his conviction for wire fraud, Harkonen filed multiple requests with DOJ requesting a retraction of the statements that he falsified test results and he diverted financial resources, and removal of the press release from official government websites. DOJ denied all of the requests, maintaining that the statements were either true or outside the scope of the guidelines.

Harkonen filed a complaint in the U.S. District Court for the Northern District of California, seeking a declaratory judgment and permanent injunction requiring retraction and removal of the press release from official government websites. The district court granted the government's motion to dismiss under Rule 12(b)(6) and Harkonen appealed.

The panel only decided whether the exclusion of press release from the coverage of the IQA guidelines were within the DOJ's and OMB's authority.

The panel analyzed the authority of the government agencies using the two-step framework established by Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). First, if Congress "has directly spoken to the precise question at issue . . . the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Second, if a statute is ambiguous with respect to a specific issue, the question is whether the agency's answer is based on a permissible construction of the statute. This means the administrative regulation will be upheld "unless it is arbitrary, capricious, or manifestly contrary to the statute." Defenders of Wildlife v. Browner, 191 F.3d 1159, 1162 (9th Cir. 1999).

In deciding whether Congress intended to include press releases in the guidelines, the panel started with the plain meaning of the statute. The IQA does not define the word "disseminated", and there is no relevant discussion in the legislative history. The structure of the IQA shows that Congress was concerned with information shared by government agencies and access to information possessed by government agencies. These concerns do not express an intent for the guidelines to apply to all information released by the government. The D.C. circuit is the only other circuit to hear the issue and it held that the definition of "disseminated" was left to the discretion of the OMB. Prime Time Int'l Co. v. Vilsack, 599 F.3d 678, 685 (D.C.C. 2010). The panel here agreed, found that the statute was not unambiguous as to the definition of "disseminated" and proceeded to the second step of the analysis.

In deciding whether the OMB and DOJ's exclusion of press releases from the coverage of the IQA was arbitrary or capricious, the panel noted that government agencies make extensive use of press releases. OMB balanced concerns that the "nternet enables agencies to communicate information quickly and easily to a wide audience . . . [which] increases the potential harm that can result from the dissemination of information that does not meet basic information quality guidelines" with the costs of information quality, and considered input from various sources, before making the exclusion. Given the deference provided to agencies in the interpretation of ambiguous statutes and the careful consideration taken by OMB, the panel found that excluding press releases from the IQA guidelines was a "permissible interpretation of the statute".

Lastly, the panel acknowledged that the DOJ's determination that the 2009 press release fell within its exclusion is neither erroneous not inconsistent with the department guidelines, and therefore is entitled to judicial deference. Auer v. Robbins, 519 U.S. 452, 461 (1997). The panel affirmed the district court decision to grant the government's 12(b)(6) motion and dismiss the matter.

To read the full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/09/08/13-15197.pdf

Panel: John T. Noonan, William A. Fletcher, and Andre M. Davis (sitting by designation), Circuit Judges.

Argument Date: March 9, 2015

Date of Issued Opinion: September 8, 2015

Docket Number: 13-15197 (D.C. No. 4:12-cv-00629-CW)

Decided: Affirmed district court decision to dismiss on 12(b)(6) grounds.

Case Alert Author: Matthew J. Gustin

Counsel:
For plaintiff-appellant: Mark E. Haddad (argued), Sidley Austin LLP, San Francisco, California; Coleen Klasmeier and Kathleen M. Mueller, Sidley Austin LLP, Washington D.C.

For defendants-appellees: Melissa N. Patterson (argued) and Alisa B. Klein, Appellate Staff Attorneys, Melinda Haag, United States Attorney, and Stuart F. Delery, Assistant Attorney General, United States Department of Justice, Civil Division, Washington D.C.

Author of Opinion: John T. Noonan, Circuit Judge

Circuit: Ninth

Case Alert Circuit Supervisor:
Ryan T. Williams

    Posted By: Ryan Williams @ 02/01/2016 08:36 PM     9th Circuit     Comments (0)  

  United States v. Allen
Case Name: United States v. Allen

Headline: Second Circuit Weighs in on Circuit Split, Ruling That Officers Must Obtain a Warrant Before Summoning a Suspect to the Door of his Home and Arresting Him

Area of Law:
Criminal Procedure - Fourth Amendment

Issue(s) Presented: Whether the Fourth Amendment permits warrantless "across the threshold" arrests in which law enforcement officers, while remaining outside a suspect's home, summon the suspect to the doorway and then arrest him.

Brief Summary: Dennis B. Allen Jr., was arrested after police officers - following up on an assault complaint - went to his apartment with the intention of arresting him for assault. They never sought a warrant for his arrest. Instead, the officers simply knocked on his door, and requested that Allen speak with them. Allen spoke with them for several minutes, remaining inside his house while the officers stood on the sidewalk. The officers then told Allen that he would need to come down to the police station to be processed for the assault. He asked them if he could go upstairs to put on shoes and advise his daughter that he was leaving; the officers said that he could only do so if accompanied by them. Upon accompanying him upstairs, they saw drug paraphernalia on his person and in the house, and then applied for and obtained a search warrant. While executing that warrant, the officers found a hand gun and more drug paraphernalia. He was ultimately charged with being a felon in possession of a firearm, and entered a conditional guilty plea to the charge in the United States District Court for the District of Vermont. On appeal, Allen challenged the district court's refusal to suppress the firearm as well as the statements he had made, arguing that both were fruits of a warrantless in-home arrest. The Second Circuit agreed, reversing the denial of the suppression motion, vacating the conviction, and remanding for further proceedings. "[W]hen officers approach the door of the resident, announce their presence, and place the occupant under arrest when he or she, remaining inside the premises, opens the door in response to the police request, the arrest occurs inside the home, and therefore requires a warrant," explained the court. To read the whole decision, please visit http://www.ca2.uscourts.gov/de...1ec0d2f218c/3/hilite/

Extended Summary: On July 25 or 26, 2012, the Springfield, Vermont Police Department received a written complaint that on July 23, Dennis Allen had assaulted John Johnston. On July 27, four Springfield police officers went to Allen's apartment with a pre-formed plan to arrest him for the alleged assault. Despite having probable cause, and two days, the officers did not seek a warrant for Allen's arrest. The officers knocked on Allen's door, and Allen came down to speak to the officers, but remained "inside the threshold" while the officers stood on the sidewalk. Allen said he did not assault Johnston, but he had received numerous phone calls from him. Allen then showed the officers his call log. The officers then told Allen he needed to come down to the police station to be processed for assault. Allen said he needed to get his shoes and tell his 12-year-old daughter he would be leaving. The officers followed him inside, where they asked him if he had anything in his pockets. Allen took out several items, including seven bags of marijuana. Officers also saw various drug paraphernalia. Based on the drug paraphernalia that they saw inside the apartment the officers obtained and executed a warrant. While executing the warrant, the officers found a handgun and various drug paraphernalia. Allen was then rearrested on the federal charge of being a felon in possession of a firearm.

After Allen was indicted by a federal grand jury, he moved to suppress the firearm, and the statements he made, contending that both were fruits of a warrantless in-home arrest in violation of the Fourth Amendment. The district court denied Allen's motion. The district court concluded that while Allen was arrested inside the threshold of his apartment, the officers were outside on the sidewalk. The court further reasoned that because Allen submitted to the officer's authority once he asked permission to receive his shoes and say goodbye to his daughter. The court then found that the police summoning Allen to his threshold did not trigger the rule announced by the Supreme Court in Payton v. New York. There, the Court held that police violated the Fourth Amendment by physically entering a home without a warrant to effect an arrest. The Payton Court went on to explain that officers can violate Payton when, in the absence of exigent circumstances or consent, they physically enter protected premises to effect a warrantless search or arrest.

The Second Circuit concluded that the underlying reasoning of Payton applied here. "If the rule of Payton, and the fundamental Fourth Amendment protection of the home on which it is based, are to retain their vitality, the rule must turn on the location of the defendant, not the officers, at the time of the rest," the court explained. Here, Allen never left his house, and the offices "asserted their power over him inside his home." In so holding, the Second Circuit rejected the conclusion of several other circuits - including the Eleventh, Seventh, and Fifth Circuits - that unless the police themselves cross the threshold of the home before arresting a suspect, a warrant is not required.

Panel (if known): Circuit Judges Sack, Lynch, and Lohier

Argument Date: December 5, 2013

Argument Location: New York, NY

Date of Issued Opinion: January 29, 2016

Docket Number: No. 13-3333-cr

Decided: Vacated and Remanded

Case Alert Author: Elizabeth Perreca

Counsel: David L. McColgin, Assistant Federal Public Defender, for Michael L. Desautels, Federal Public Defender for the District of Vermont, Burlington, Vermont, for Defendant-Appellant
William B. Darrow, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, Vermont, for Appellee.

Author of Opinion:
Judge Gerard E. Lynch

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 02/01/2016 03:05 PM     2nd Circuit     Comments (0)  

January 28, 2016
  Citizens in Charge v. Husted -- Sixth Circuit
Case name: Citizens in Charge, Inc. v. Jon Husted

Headline: Secretary of State Maintains Qualified Immunity for Enforcing Law Despite Unconstitutionality

Area of law: Qualified Immunity; Enforcement

Issue presented: Does a Secretary of State's enforcement of a properly enacted and presumptively constitutional statute expose him to personal liability when the law is held to be unconstitutional?

Brief summary: Ohio, like many states, adopted an initiative process that permitted individuals or groups to propose new legislation and constitutional amendments to be placed on the ballot. But the law required that all signature gatherers be Ohio residents. A group of citizens challenged the residency requirement on First and Fourteenth Amendment grounds. The citizens also sought to enjoin enforcement of the new law and to hold Ohio's Secretary of State personally liable (for several thousand dollars) for enforcing it. The district court declared the law unconstitutional, enjoined enforcement of it, and denied the Secretary's qualified-immunity defense. The Secretary appealed, challenging the qualified-immunity ruling but not the injunction. The Sixth Circuit reversed, holding that the Secretary of State was entitled to qualified immunity because the Ohio Legislature made several changes to the statute's signature-gathering requirements since it was last addressed by the court and because the Secretary had no clearly established duty to decline enforcement of this properly enacted and presumptively constitutional statute.

Extended summary: The Ohio General Assembly enacted a provision in 2013 that said: "Except for a nominating petition for presidential electors, no person shall be entitled to circulate any petition unless the person is a resident of this state and is at least eighteen years of age." Ohio Rev. Code § 3503.06(C)(1)(a). Shortly after the provision took effect, counsel for three nonprofit organizations wrote to the Secretary of State, asking whether he planned to enforce the statute. The Secretary responded that although "a court may ultimately find this law unconstitutional, that determination is a decision for the judicial branch, not the Secretary of State. As a result, this office and county boards of election will implement this law like any other until such time as the legislature acts to make a statutory change or a court directs otherwise."

At that point, one of the nonprofit groups hired a firm to help gather signatures for an initiative petition, paying a higher-than-usual fee to ensure that the firm hired in-state signature gatherers. Then all three nonprofit organizations, along with one of their members, sued the Secretary of State in federal court. They sought a declaration that the petition-circulator residency requirement was unconstitutional, an injunction prohibiting its enforcement, and damages against the Secretary of State "as compensation for extra petition circulation charges." The Ohio Attorney General intervened to defend the law's constitutionality on behalf of the State, and the Secretary of State argued that qualified immunity protected him from the damages claim. The district court disagreed, granting the permanent injunction and denying the qualified-immunity motion. On appeal, the Secretary of State challenged the qualified-immunity ruling but not the injunction.

The Sixth Circuit explained that qualified immunity protects public officials from liability for money damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Public officials are eligible for qualified immunity if (1) they did not violate any constitutional guarantees or (2) the guarantee, even if violated, was not "clearly established" at the time of the alleged misconduct. Both inquiries, the court noted, are "objective," as they turn on what the law is today and whether it was clearly established at the time of the challenged action.

Looking to Supreme Court precedent, the Sixth Circuit pointed out that public officials should generally receive qualified immunity when enforcing properly enacted laws. Generally, "[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality - with the possible exception of a law so grossly and fragrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." In fact, the Supreme Court has never denied qualified immunity to a public official who enforced a properly enacted statute that no court had invalidated. The Sixth Circuit observed that it is not good practice to have public officials second-guess legislative decisions and that this particular election statute was not a "grossly and flagrantly unconstitutional" law.

The court also noted conflicting judicial opinions on the matter of residency requirements in the Tenth Circuit and the Eighth Circuit. The Sixth Circuit thus reasoned that since judges can reasonably disagree about the meaning of the Constitution, courts should not punish public officials for reasonably taking a position.

The citizens argued that the Sixth Circuit's decision in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008) was sufficient to place the Secretary of State on notice of the unconstitutionality of the Ohio statute because that decision invalidated residency and registration requirements of the same statute. But the Ohio General Assembly had amended those provisions in response to the Nader decision and passed the new version of the law in 2013. Thus, the Nader decision did not give the Secretary notice of the new statute's constitutional shortcomings.

While the citizens cited other out-of-circuit cases that had struck down petition-circulator residency requirements, these cases engaged in fact-intensive analyses to determine that the specific residency requirements at issue were unconstitutional. So they also did not put the Secretary of State on notice that Ohio's revised law was clearly invalid, especially when the Eighth and Tenth Circuits had issued conflicting decisions on the same issue.

Ultimately, at the time the Secretary of State acted, no court had declared this residency requirement unconstitutional, and he acted reasonably in saying he would enforce it. When public officials implement validly enacted state laws that no court has invalidated, their conduct typically is considered reasonable. Because the Secretary of State acted in the face of a duly enacted, presumptively constitutional law and had no on-point decision declaring it unconstitutional, he did not violate clearly established law or otherwise act unreasonably. Therefore, the Sixth Circuit reversed the district court's decision and remanded the case so that summary judgment could be granted to the Secretary of State based on qualified immunity.

Panel: Chief Judge R. Guy Cole; Circuit Judge, Jeffrey Sutton; and District Judge Robert Bell.

Date of issued opinion: 1/19/2016

Docket number: 15-3447

Decided: Reversed and remanded.

Counsel: ARGUED: Ryan L. Richardson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Maurice A. Thompson, 1851 CENTER FOR CONSTITUTIONAL LAW, Columbus, Ohio, for Appellees. ON BRIEF: Ryan L. Richardson, Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Maurice A. Thompson, 1851 CENTER FOR CONSTITUTIONAL LAW, Columbus, Ohio, for Appellees.

Author of opinion: Circuit Judge Jeffrey Sutton

Case alert author: Luciana Viramontes

Case Alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0013p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 04:25 PM     6th Circuit     Comments (0)  

  The Estate of Ronald Armstrong v. Village of Pinehurst -- Fourth Circuit
Tread Carefully with Taser: Court Limits Officers' Use of Tasers in Non-Violent Situations

Areas of Law: Civil Rights, Criminal Procedure

Issues Presented: Whether Pinehurst police officers used excessive force in their encounter with Ronald Armstrong, and if so, whether their actions are protected by qualified immunity.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that Pinehurst officers were protected by qualified immunity for their actions that led to the death of Ronald Armstrong. While the court did hold that the officers used excessive force when they "tased" Armstrong five times and pushed him to the ground, the Court found that the right to not be "subjected to tasing while offering stationary and non-violent resistance" was not sufficiently settled at the time such that every reasonable officer would have understood the right to exist. Because the right was not settled at the time, the Fourth Circuit upheld the District Court's grant of summary judgment for the officers.

Extended Summary: Ronald H. Armstrong suffered from paranoid schizophrenia and bipolar disorder. On April 23, 2011, Armstrong stopped taking his prescribed medication and began harming himself. Fearing for his safety, Armstrong's sister convinced Armstrong to check in to a local hospital. Armstrong eventually left the hospital and the examining doctor issued an involuntary commitment order, deeming Armstrong "mentally ill and dangerous to self" but not dangerous to others, on the commitment form.

Pinehurst police officers Gatling, McDonald, and Sheppard responded to the scene and found Armstrong wandering in an intersection near the hospital. The officers, along with two hospital security guards and Armstrong's sister, convinced Armstrong to leave the roadway and engaged him in conversation until the commitment order was finalized. Under North Carolina law, the officers were required to wait until the commitment order was finalized before taking action. Once the order was completed, the officers advanced on Armstrong and he wrapped his arms and legs around a nearby stop sign post. Officers attempted to pull Mr. Armstrong off the post for approximately 30 seconds, but were unsuccessful.

After this initial attempt, the officers began to utilize other methods to remove Mr. Armstrong from the pole. Officer Gatling utilized his taser - set to "drive stun mode" - five times "over a period of approximately two minutes." Drive stun mode is designed to be "used as a pain compliance tool" and not one that overrides the central nervous system. The tasing was unsuccessful and actually increased Armstrong's resistance, so all five officers pulled Armstrong off the post. Officers subdued Armstrong "by placing a knee on his back and standing on his back," and handcuffed both his arms and legs.

When officers began to collect Mr. Armstrong to return him to the hospital, his sister observed that he had become unresponsive. The officers turned Armstrong over and, saw that his "skin had turned a bluish color and he did not appear to be breathing." Officers radioed for Emergency Medical Services personnel and Armstrong was taken to the hospital's emergency department, but he was pronounced dead shortly after arriving at the hospital. Approximately 6 1/2 minutes passed between the finalization of Armstrong's commitment papers and the call for Emergency Services.

Armstrong's estate filed a complaint against each officer in the Superior Court of Moore County, North Carolina, alleging excessive force in violation of Armstrong's Fourth and Fourteenth Amendment rights. The officers removed the case to the United States District Court for the Middle District of North Carolina. The District Court subsequently held that the officers' use of force was reasonable and granted summary judgment for the officers on those grounds.

Armstrong's estate appealed to the Fourth Circuit, alleging that the officers used excessive force and were not protected by qualified immunity. The Fourth Circuit reversed the District Court on the issue of excessive force and held that the officers' use of force was not reasonable under the totality of the circumstances. However, the court upheld the grant of summary judgment on the grounds of qualified immunity, holding that Armstrong's right not to be tased in those circumstances was not sufficiently established at the time of his death.

The Fourth Circuit considered three factors in weighing the use of force; the factors were listed in Graham v. Connor, 490 U.S. 386, 396 (1989). Those factors were (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting or attempting to evade arrest by flight. The court concluded that these factors, specifically the second and third factors, permitted a limited use of force because of Armstrong's erratic behavior and potential danger to himself, but the level of force used was not objectively reasonable and thus violated Armstrong's Fourth Amendment rights. The court specifically pointed to the use of a taser in a situation that "does not raise a risk of immediate danger" as justification for concluding the officers used unreasonable force.

Nonetheless, the court ultimately upheld the District Court's grant of summary judgment. While the District Court held the officers did not use excessive force, the Forth Circuit concluded that the officers were protected by qualified immunity. In making that decision, the Fourth Circuit considered whether (1) the officers violated Armstrong's constitutional protections, and (2) if so, whether the violated protections were "clearly established" and "within the knowledge of a reasonable person." The court defined the precise right at issue in Armstrong's case to be "Armstrong's right not to be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure."

The Fourth Circuit noted that "substantial case law indicated that [the officers] were treading close to the constitutional line." However, the court drew a distinction between existing case law on non-violent resistance and Mr. Armstrong's case, noting that "[it] would not necessarily have been clear to every reasonable officer that [cases which prohibit using force without first warning an individual who was non-compliant] applied to force inflicted after warning an individual exhibiting non-violent resistance to desist and discontinued before that individual was secured." Because the court found sufficient ambivalence in case law for how to respond to non-violent resistance from a mentally ill patient, the court held that Armstrong's right was not sufficiently established such to deprive the officers of qualified immunity.

Even with this holding, the Fourth Circuit sought to provide clarity in similar situations going forward. The court conducted a lengthy discussion on the use of tasers in varying circumstances, and ultimately concluded that a taser is analogous to a gun or baton and thus "may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser." The court concluded by noting that the officers in Armstrong's case would no longer be protected by qualified immunity if they or other officers use a taser in similar circumstances in the future.

Judge Wilkinson wrote a concurring opinion that joined the decision of the majority but differed in its underlying logic. Judge Wilkinson noted he was "happy" to join the majority in its judgment because the officers' conduct in causing the death of Mr. Armstrong was not the kind "that merited an award of monetary judgment." Judge Wilkinson criticized the majority for "opin[ing] on the merits of the excessive force claim" because the majority's standard "will be of less than limited help to officers wondering what exactly they may and may not do." Ultimately, the judge concluded that Armstrong did in fact pose some danger to himself and others, as shown by the possibility that he could have "bolt[ed] into the street" and caused a fatal accident. He ultimately wrote that the District Court was correct in granting summary judgment on the grounds that the officers did not use excessive force.

To read the full text of this opinion, please click here.

Panel: Thaker, Keenan, and Wilkinson (concurring)

Argument Date: 10/28/2015

Date of Issued Opinion: 01/11/2016

Docket Number: 15-1191

Decided: Affirmed by published opinion.

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Karonnie R. Truzy, CRUMLEY ROBERTS, LLP, Greensboro, North Carolina, for Appellant. Dan McCord Hartzog, CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: David J. Ventura, CRUMLEY ROBERTS, LLP, Charlotte, North Carolina, for Appellant. Dan M. Hartzog, Jr., CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina; Michael J. Newman, VAN CAMP, MEACHAM & NEWMAN PLLC, Pinehurst, North Carolina, for Appellees.

    Posted By: Renee Hutchins @ 01/28/2016 04:07 PM     4th Circuit     Comments (0)  

  Burniac v. Wells Fargo Bank -- Sixth Circuit
Case name: Donald Burniac v. Wells Fargo Bank, N.A.

Headline: State-Court Injunctions May Not Withstand Removal.

Area of law: foreclosures; enjoinment; assignment of mortgage

Issue(s) presented: May a federal district court issue summary judgment after a state court has issued an injunction? Will an invalid assignment void foreclosure proceedings?

Brief summary: Due to unpaid monthly mortgage payments, a homeowner's home became subject to foreclosure. The homeowner sued Wells Fargo Bank in state court to prevent the foreclosure sale. His complaint alleged, in part, that the assignment of his mortgage from Washington Mutual Bank to Wells Fargo was invalid. The state court purportedly entered a default judgment against Wells Fargo and preliminarily enjoined the foreclosure sale. Wells Fargo removed the case to the federal district court, which later denied the homeowner's motion to remand and granted Wells Fargo's motion for summary judgment. The homeowner appealed, arguing that the district court committed procedural errors and misapplied state substantive law. The Sixth Circuit affirmed, finding no procedural errors or misapplication of state law.

Extended summary: A homeowner and his wife executed a mortgage to secure a loan from Washington Mutual Bank. Wells Fargo Bank acted as servicer of the mortgage and sent the homeowner his monthly mortgage statements. Washington Mutual eventually assigned ownership of homeowner's mortgage to Wells Fargo, although the homeowner disputed the validity of that assignment. After the assignment, the homeowner continued to receive his monthly mortgage statements from Wells Fargo. He sent his mortgage payments to Wells Fargo for several years, until he experienced hardship and stopped making payments. Wells Fargo began foreclosure proceedings on his property, and a foreclosure sale was scheduled.

To prevent the foreclosure sale, the homeowner sued Wells Fargo in state court. The homeowner's complaint asserted, among other claims, that the signatures on the assignment were forged by "robo-signers" or that the signers had no authority to execute the assignment. The next day, the homeowner sought a temporary restraining order, which the state court granted immediately. The state court also set a hearing on the homeowner's request for a preliminary injunction. The parties stipulated to adjourn the hearing, but Wells Fargo did not attend the rescheduled hearing. The state court issued a preliminary injunction in the homeowner's favor.

Later, the homeowner filed a "DEFAULT REQUEST, AFFIDAVIT, AND ENTRY" form asking the court clerk to enter a default against Wells Fargo for its "failure to plead or otherwise defend" the case. Beneath that text were two lines with "Date" and "Court Clerk" captions that were left blank. The state-court docket displayed no other entries concerning a default judgment. Wells Fargo removed the case to federal court on the same day that the homeowner requested the default judgment. No default was ever entered.

The homeowner moved in federal court to remand the case back to state court, but the district court concluded that subject-matter jurisdiction was proper based on diversity of citizenship and denied the motion. The district court later granted Wells Fargo's motion for summary judgment. The homeowner appealed, challenging: (1) procedural errors allegedly committed by the district court, and (2) the district court's substantive-law rulings on summary judgment.

The Sixth Circuit rejected the homeowner's procedural challenges because a default judgment was never entered against Wells Fargo, and the state court's preliminary injunction neither prevented the district court from issuing a summary-judgment order nor required remand of the case to the state court. The Sixth Circuit added that a final order on the merits extinguishes a preliminary injunction.

Likewise, the court held that the homeowner's challenges based on the district court's application of Michigan law failed because, even assuming that Wells Fargo violated Michigan law by way of an invalid assignment, the homeowner had not demonstrated that he was prejudiced by those violations. Specifically, the homeowner could not demonstrate that the alleged assignment irregularities (1) would subject him to double liability, (2) placed him in a worse position to keep his property, or (3) prejudiced him in any other way. Indeed, the purported assignment deficiencies did not cause the homeowner confusion about whom he should pay because, both before and after the assignment, the homeowner received his monthly mortgage statements from the same bank: Wells Fargo. Therefore, the Sixth Circuit affirmed the district court's decision.

Panel: Circuit Judges Richard Moore, Eric Clay, and Ronald Gilman.

Date of issued opinion: January 13, 2016

Docket number: 15-1230

Decided: Affirmed.

Counsel: ARGUED: Carson J. Tucker, THE LAW OFFICES OF CARSON J. TUCKER, Ann Arbor, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees. ON BRIEF: Carson J. Tucker, THE LAW OFFICES OF CARSON J. TUCKER, Ann Arbor, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees.

Author of opinion: Ronald Lee Gilman, Circuit Judge

Case alert author: Luciana Viramontes

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0009p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 03:52 PM     6th Circuit     Comments (0)  

  Kelsey v. Pope -- Sixth Circuit
Case name: Norbert Kelsey v. Melissa Pope

Headline: Off-reservation Offenses Remain Under the Jurisdiction of Tribal Courts.

Area of law: Indian Civil Rights Act; Tribal law

Issue presented: Does a tribal reservation maintain criminal jurisdiction over its members if the offense occurs off the tribal reservation?

Brief summary: A tribal member of the Ottawa Indians (Band) was convicted in tribal court of misdemeanor sexual assault for inappropriately touching a tribal employee at the Band's Community Center. The Community Center is located on land owned by the Band but is not located within the tribal reservation. He appealed his sentence in tribal court, arguing that the tribal court lacked jurisdiction over his off-reservation conduct. When his sentence was affirmed, he filed a petition for habeas relief in United States District Court, arguing lack of jurisdiction and a violation of due-process protections under the Indian Civil Rights Act. The district court granted habeas relief, holding that the Band lacked criminal jurisdiction to try and punish the tribal member's off-reservation conduct, but the district court did not rule on his due-process challenge. The Band appealed, and the Sixth Circuit reversed and held that the Band has jurisdiction because it has the inherent sovereign authority to prosecute members when necessary to protect tribal self-government or control internal relations.

Extended summary: The Band is a federally recognized Indian tribe located in northwest Michigan's Manistee and Mason Counties. Under federal law, Indian tribes "shall retain inherent sovereign power," with "the inherent authority to establish their own form of government, including tribal justice systems." The Band has also implemented a Tribal Constitution. Within the constitution, the Tribal Court is vested with the authority "[t]o adjudicate all civil and criminal matters arising within the jurisdiction of the Tribe or to which the Tribe or an enrolled member of the Tribe is a party."

The Community Center, located just across the street from the reservation, is constructed on land purchased by the Band in fee simple in 1997 but is not within "Indian country" as defined by 18 U.S.C. § 1151. In 2005, the tribal member, then an elected member of the Band's nine-person Tribal Council, made inappropriate physical contact of a sexual nature with an employee of the Band's medical clinic during a meeting at the Community Center. The tribal member was later charged with misdemeanor sexual assault and harassment under its internal criminal laws. In 2008, the Tribal Court convicted the tribal member of sexual assault and sentenced him to six months in jail.

On appeal, the tribal member challenged the Tribal Court's jurisdiction, arguing that the Band lacked authority to exercise criminal jurisdiction over his specific conduct because it occurred outside the Band's Indian country. The Tribal Court of Appeals affirmed tribal criminal jurisdiction over his offense based on the Band's inherent sovereign authority to prosecute its members. It also found that a jurisdictional mandate in the Tribal Constitution required extending jurisdiction to his off-reservation conduct.

The tribal member filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Michigan, making two principal arguments: (1) the Band lacked inherent sovereign authority to assert criminal jurisdiction over his conduct because it occurred outside of the Band's Indian country, and (2) the Tribal Court of Appeals' decision violated his due-process rights under the Indian Civil Rights Act. The district court held that Indian tribes were implicitly divested of criminal jurisdiction over off-reservation member conduct. The Band appealed.

Both parties accepted that, as dependent sovereigns, Indian tribes exercise inherent sovereign authority. The Sixth Circuit therefore assessed the question of extra-territorial criminal jurisdiction by breaking this governing framework into three separate inquiries: (1) Do Indian tribes have inherent sovereign authority to exercise extra-territorial criminal jurisdiction? (2) If so, has that authority been expressly limited by Congress or treaty? (3) If not, have the tribes been implicitly divested of that authority by virtue of their domestic dependent status?

First, the Sixth Circuit observed that a tribe's sovereign authority to punish its members is "a power that this Court has called inherent." The court agreed with the Band's view that tribes have "inherent authority to prosecute tribal members for offenses substantially affecting [tribal] self-governance interests," even when those offenses take place outside Indian country. Furthermore, Indian tribes have the inherent sovereign authority to try and punish members on the basis of their tribal membership.

Second, the court concluded that there is no statute or treaty that expressly divests the Band of its inherent authority to try and punish its members for off-reservation conduct.

Third, while courts have repeatedly restricted tribal criminal jurisdiction over nontribal members, the Supreme Court has consistently affirmed that the "power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status."

Accordingly, the Sixth Circuit held that because prosecuting this tribal member's conduct was "necessary to protect tribal self-government or control internal relations," the Band retained authority to assert criminal jurisdiction over his off-reservation conduct. The Sixth Circuit thus reversed the district court's grant of habeas relief for lack of tribal jurisdiction.

Panel: Circuit Judges John M. Rogers and David W. McKeague, and District Judge Edmund A. Sargus, Jr.

Date of issued opinion: January 5, 2016

Docket number: 14-1537

Decided: Vacated and reversed.

Counsel: ARGUED: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, for Appellant. Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellee. ON BRIEF: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, Dan Himmelfarb, MAYER BROWN LLP, Washington, D.C., for Appellant. Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellee. Eugene R. Fidell, New Haven, Connecticut, John L. Smeltzer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Ruthanne M. Deutsch, GEORGETOWN UNIVERSITY LAW CENTER APPELLATE LITIGATION PROGRAM, Washington, D.C., for Amici Curiae.

Author of opinion: Circuit Judge McKEAGUE

Case alert author: Luciana Viramontes

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0001p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 03:05 PM     6th Circuit     Comments (0)  

  ABA Test 5
Headline: This is a test

Areas of Law: Freedom of Information Act; Administrative Law

Issue(s) Presented: Whether the National Security Council ("NSC") is an "agency" for Freedom of Information Act purposes under 5 U.S.C. § 552(f)(1), either due to its own function or due to the functions of the broader NSC System.

Brief Summary: Plaintiffs-Appellants, a non-profit law firm within the City University of New York School of Law, brought suit against Defendant-Appellee, the National Security Council (the "NSC") following the NSC's rejection of Plaintiffs-Appellants' Freedom of Information Act ("FOIA") requests. Plaintiffs-Appellants had requested "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "[a]ll National Security Council meeting minutes taken in the year 2011." The NSC moved to dismiss the complaint for failure to state a claim on the grounds that it is not an agency subject to FOIA requests.

The United States District Court for the Eastern District of New York agreed with the NSC and dismissed the case on the merits. The Second Circuit affirmed, holding that the NSC, created by Congress and presided over by the President, "is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive." The Second Circuit adopted D.C. Circuit jurisprudence and predicated its holding upon the functions of both the Council and the NSC System, which it held were advisory only and entailed no authority independent of the President.

    Posted By: Kevin Borek @ 01/28/2016 08:51 AM     8th Circuit     Comments (0)  

January 27, 2016
  Main Street Legal Services v. National Security - Second Circuit
Headline: Second Circuit Holds National Security Council Is Not an "Agency" and Thus Not Subject Freedom of Information Act Disclosure Requirements.

Areas of Law: Freedom of Information Act; Administrative Law

Issue(s) Presented: Whether the National Security Council ("NSC") is an "agency" for Freedom of Information Act purposes under 5 U.S.C. § 552(f)(1), either due to its own function or due to the functions of the broader NSC System.

Brief Summary:
Plaintiffs-Appellants, a non-profit law firm within the City University of New York School of Law, brought suit against Defendant-Appellee, the National Security Council (the "NSC") following the NSC's rejection of Plaintiffs-Appellants' Freedom of Information Act ("FOIA") requests. Plaintiffs-Appellants had requested "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "[a]ll National Security Council meeting minutes taken in the year 2011." The NSC moved to dismiss the complaint for failure to state a claim on the grounds that it is not an agency subject to FOIA requests.

The United States District Court for the Eastern District of New York agreed with the NSC and dismissed the case on the merits. The Second Circuit affirmed, holding that the NSC, created by Congress and presided over by the President, "is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive." The Second Circuit adopted D.C. Circuit jurisprudence and predicated its holding upon the functions of both the Council and the NSC System, which it held were advisory only and entailed no authority independent of the President.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...d4993/1/hilite/


Extended Summary: Plaintiffs-Appellants brought suit against Defendant-Appellee, the National Security Council (the "NSC"), following the NSC's rejection of Plaintiffs-Appellants' Freedom of Information Act ("FOIA") requests. FOIA "establishes record retention and disclosure requirements for federal agencies" and mandates that, barring certain exemptions, agencies disclose records not already publically available upon request. Plaintiffs-Appellants had moved to compel the NSC to disclose "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "[a]ll National Security Council meeting minutes taken in the year 2011." The NSC moved to dismiss the complaint for failure to state a claim on the grounds that it is not an agency subject to FOIA requests.

The United States District Court for the Eastern District of New York agreed with the NSC and dismissed the case on the merits. The Second Circuit affirmed, holding that the NSC, created by Congress and presided over by the President, "is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive." The Second Circuit adopted D.C. Circuit jurisprudence and predicated its holding upon the functions of both the Council and the broader NSC System, which it held were advisory only and entailed no authority independent of the President.

In affirming the district court's ruling, the Second Circuit first noted that the FOIA's plain language defining "agency" as any "other establishment in the executive branch of the Government (including the Executive Office of the President)" under 5 U.S.C. § 552(f)(1) had not been strictly construed by the Supreme Court. It then relied upon FOIA's legislative history and the two-prong test enumerated by the Court of Appeals for the District of Columbia (the "D.C. Circuit") in Soucie v. David. Soucie construed the "agency" definition to apply to executive branch entities with "substantial independent authority," but not to those whose "sole function" is to "advise and assist the President."

The Second Circuit noted that the D.C. Circuit, which frequently hears appeals from FOIA request denials, had held on more than one occasion that NSC is not an "agency." The Court went on to accept guidance from the D.C. Circuit's decision in Meyer v. Bush, when that circuit concluded the NSC was not an agency, but conducted its own thorough analysis of the functions of the NSC and the broader NSC System - which includes staff and subcommittees and boards - before concluding that the NSC's sole statutory function is to advise and assist the President and has no independent authority conferred upon it.

In rejecting a series of specific arguments raised by the Plaintiffs to demonstrate NSC's alleged independent authority, the Court noted that, although the NSC formerly directed the Central Intelligence Agency, Congress partially withdrew that authority in 1992, and withdrew the rest of that authority in 2004. The Court also found legislative support for its position that the core function of the broader NSC System was to assist the President through "coordination," by serving as "the means by which the President can secure both the collective national security recommendations of department heads and their cooperation in integrating his policies across various parts of government."

Judge Wesley concurred, writing that, while the conclusion that the NSC is not subject to FOIA requests has implicitly been accepted by Congress in its FOIA amendments and, accordingly, the question of that position's wisdom "is best
considered a political issue for Congress and the President, not for this Court."

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...d4993/1/hilite/


Panel: Circuit Judges Raggi, Wesley, and Lynch

Argument Date: 03/02/2015

Date of Issued Opinion: 01/26/2016

Docket Number: 13‐3792‐cv

Decided: Affirmed

Case Alert Author: Jake B. Sher

Counsel: Ramzi Kassem, Main Street Legal Services, Inc., Long Island City, N.Y., for Plaintiff-Appellee; Jayne Randall Linney, Civil Division, United States Department of Justice, Washington, D.C., for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Defendant‐Appellee.

Author of Opinion: Judge Raggi for majority; Judge Wesley concurring.

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 01/27/2016 07:45 AM     2nd Circuit     Comments (0)  

January 20, 2016
  Trump Entertainment Resorts v. USDC for the District of Delaware - Third Circuit
Headline: Third Circuit Holds Debtors Can Reject Expired Collective Bargaining Agreements Under Bankruptcy Code §1113

Area of Law: Bankruptcy

Issues Presented: Whether a Chapter 11 debtor-employer is able to reject the continuing terms and conditions of a Collective Bargaining Agreement (CBA) under § 1113 of the Bankruptcy Code after the CBA has expired?

Brief Summary: The appellee, Trump Entertainment Resorts (the debtor), filed for Chapter 11 bankruptcy and moved to reject its Collective Bargaining Agreement (CBA) with Unite Here Local 54 (the Union) under 11 U.S.C. § 1113. The bankruptcy court granted the debtor's motion to reject the CBA, finding that the debtor had made good faith efforts to renegotiate the expired CBA and to hold the debtor to the conditions of the CBA would prevent it from reorganizing. The bankruptcy court balanced the equities and held that the equities balanced in favor of rejecting the CBA. The union appealed the bankruptcy court's decision, arguing that its expired CBA is protected under the National Labor Relations Act and the bankruptcy court did not have authority to grant the debtor's motion to reject the CBA. The Third Circuit found that § 1113 applies to both current and expired CBAs. The court further found that the debtor had complied with its obligations under § 1113 in order to reject the CBA to reorganize in light of the bankruptcy. The debtor made a good faith effort to renegotiate the CBA and the Union stonewalled the debtor's efforts throughout the process. The Third Circuit affirmed the bankruptcy court's ruling granting the motion to reject the CBA.

Extended Summary: The appellee, Trump Entertainment Resorts (the debtor), filed for Chapter 11 bankruptcy. Prior to filing for bankruptcy, the debtor attempted to renegotiate its CBA with the appellant, Unite Here Local 54 (the Union). The Union was initially unresponsive and then delayed negotiations with the debtor. Unable to reach an agreement with the Union, and facing the risk of the casino going under which would result in all jobs lost and liquidating the assets, the debtor moved to reject the expired CBA under 11 U.S.C. §1113. The bankruptcy court granted the motion to reject the expired CBA, finding that the balance of equities favored rejecting the CBA.

The Union first challenged whether a bankruptcy court could grant a motion to reject an expired CBA under §1113. The Union argued that expired CBAs are protected under the National Labor Relations Act (NLRA) and the bankruptcy court erred in its interpretation of §1113 because it directly conflicted with the protections under NLRA. The Third Circuit reviewed the bankruptcy court's decision de novo. The court determined that the NLRA yields to §1113 only for reasons that permit the debtor to stay in business. Additionally, the Third Circuit concluded that § 1113 does apply to expired CBAs. Therefore, the bankruptcy court correctly applied the statute in granting the debtor's motion to reject the expired CBA.

In its argument, the Union compared a CBA to an executory contract, contending that under 11 U.S.C. § 365 a debtor cannot reject an executory contract and, therefore, a debtor cannot reject an expired CBA under § 1113. The court disagreed with the Union's argument, noting the important distinction between an executory contract and a CBA. Unlike with an executory contract, a debtor is still bound by the terms and conditions of a CBA even after it has ex