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March 23, 2015
  Werkheiser v. Pocono Township - Third Circuit
Headline: Elected officials entitled to qualified immunity on claim that they violated the First Amendment by retaliating against a fellow official for speech made in his official capacity

Area of Law: First Amendment and Qualified Immunity

Issues Presented: Are elected officials entitled to qualified immunity where they are alleged to have retaliated against a fellow official for comments he made in his official capacity?

Brief Summary: The case centers on the Board of Supervisors in Pocono Township. Werkheiser was one member of the three member elected board and he objected to the actions of the other two members, including hiring a person to perform duties that another supervisor was supposed to do and paying both for it. Due to his objections, Werkheiser was not reappointed to the position of Roadmaster to which the Board had earlier appointed him. Werkheiser claimed these actions constituted First Amendment retaliation because he was denied a position as a result of speech he expressed in his capacity as an elected official. The Court decided that the defendant officials were entitled to qualified immunity from Werkhiser's claim because the right at issue was not clearly established at the time of the misconduct.

Significance (if any):

Extended Summary: Pocono Township has a three-member Board of Supervisors which is elected for a six-year term. Members of the Board of Supervisors can also hold positions of employment with the Township. Werkheiser was elected in 2008 and appointed Roadmaster by the Board of Supervisors the same year. The appellants joined the board in 2009 and 2011. Administrative duties were performed by one of the other supervisors but he soon became ill and the duties were given to a man who was appointed by a consultant to take over the duties. When the supervisor was again able to perform his duties the other man was not dismissed and both men were pulling in salary from the township. Werkheiser objected to this use of funds and in January 2013 the Board of Supervisors did not reappoint him to Roadmaster. Werkheiser claimed this action was First Amendment retaliation because he was denied his reappointment as a result of speech expressed in his capacity as an elected official.

The Court first looked to the two-step analysis that governs whether an official is entitled to qualified immunity that was established by the Supreme Court. The Court, starting with the second step, determined that the right at issue was not clearly established at the time of the alleged misconduct. It determined that Werkheiser's First Amendment rights, as an elected official, were not sufficiently defined and thus it could not deny appellants qualified immunity. The Court made it clear that it was determining only that the law on retaliation against elected officials was not clearly established. The Court did note that speech by elected officials may be treated differently than speech by public employees in their official capacities but again reiterated that this was not clearly established at the time of the alleged misconduct. The Court noted that the Circuits and District Courts are split as to whether elected official's speech made in his capacity as an elected official is entitled to First Amendment protection.

The Court also held that it was not clearly established that the kind of retaliation that was engaged in violated Werkheiser's First Amendment rights. The Court noted that not all retaliation violates the First Amendment nor does prior case law support the finding that the First Amendment should guard against every form of political backlash that might arise out of everyday squabbles and hardball of politics. The Court follows the other Circuits concluding that the First Amendment prohibits retaliation against elected officials for speech pursuant to their official duties only when the retaliation interferes with their ability to adequately perform their official duties. Here the Court found that Werkheiser's removal as Roadmaster in no way interfered with his Supervisor duties and thus the appellants were entitled to qualified immunity.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133646p.pdf

Panel (if known): Vanaskie, Greenberg, and Cowen, Circuit Judges

Argument Date: December 8, 2014

Argument Location:

Date of Issued Opinion: March 6, 2015

Docket Number: 13-3646

Decided: Vacated and Remanded

Case Alert Author: Cheri Snook

Counsel: Edward J. Easterly, Esq., Steven E. Hoffman, Esq., for appellants; Michael S. Fettner, Esq., Cletus P. Lyman, Esq., Michael T. Sweeney, Esq., for appellees

Author of Opinion: Judge Cowen

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 03/23/2015 03:42 PM     3rd Circuit     Comments (0)  

  USA v. Christopher Erwin - Third Circuit
Headline: Third Circuit Denies Rehearing of Its Decision That the Government Is Excused From Its Plea Agreement Obligations When a Criminal Defendant Violates His Plea Agreement by Filing an Appeal

Areas of Law: Criminal Law

Issues Presented: Should the Third Circuit Court grant a rehearing for this case, in which the Court vacated the defendant's sentence upon finding that he violated his plea agreement by filing an appeal, and that the Government was thereby excused from its plea agreement obligations?

Brief Summary:
When deciding this case in August 2014, the Third Circuit Court addressed the question of what remedy is available to the Government when a criminal defendant violates his plea agreement, which included a waiver of the right to appeal, by filing an appeal. In that opinion, the Court found that Erwin's appeal was within the scope of his appellate waiver, to which he knowingly and voluntarily agreed; therefore, Erwin breached his plea agreement by appealing. Applying contract law, the applicable law for plea agreements, the Court determined that the appropriate remedy for this breach was de novo resentencing in which the Government no longer had the obligation to request downward departure from the Sentencing Guidelines. Accordingly, the Court vacated Erwin's sentence and remanded for de novo sentencing.
In this opinion, the Third Circuit Court, sitting en banc, denies the defendant's petition for rehearing. Judges Ambro, joined by Judges Rendell, Greenaway, and Vanaskie, dissents, stating that when only a waived argument is brought on appeal, the proper remedy is to nullify the appeal and affirm the sentence. He further states that granting de novo resentencing runs counter to contract law, by allowing the Government to get more than it bargained for, and by punishing the defendant with a harsher sentence, and counter to prior cases.

Extended Summary:

Erwin managed a large-scale oxycodone distribution ring that operated throughout the State of New Jersey as well as other locations. Erwin executed a written plea agreement with the Government. In the plea agreement, Erwin agreed to plead guilty to conspiracy, and to voluntarily waive the right to appeal, in return for the Government's agreement not to bring further criminal charges against Erwin in connection with the conspiracy. The parties agreed that the Sentencing Guidelines offense level applicable to Erwin was 39, and that a sentence with that Guideline range would be reasonable. The agreement dictated that if Erwin violated any provision of the plea agreement, the Government would be released from its obligations under the plea agreement. The Court imposed a within-Guidelines sentence of 188 months.

Erwin timely appealed, arguing that the District Court's use of offense level 39, rather than level 38, as its starting point for downward departure was in error. Erwin averred that this deprived him of the benefit of his plea bargain. The Government did not cross-appeal but did contend that the Court should vacate and remand for resentencing where it would modestly increase Erwin's sentence in light of his breach of the appellate waiver.

The Court found that the issues raised in Erwin's appeal fell within the scope of the appellate waiver; that Erwin knowingly and voluntarily agreed to the appellate waiver; and therefore, that Erwin's appeal was barred by the appellate waiver.

Most notably, the Court then determined the appropriate remedy. Citing contract law, which governs plea agreements because they are bargained-for exchanges, the Court noted that a party should be prevented from benefitting from its own breach. The Court stated that while Erwin received the full benefit of the bargain, the Government was forced to devote valuable resources to litigating an appeal that should never have been filed. The Court added that the possibility of de novo resentencing was not barred by the cross-appeal rule, because there was no sentencing error for the Government to challenge. Further, the Court stated that Erwin should have anticipated the possibility that he breached the plea agreement by appealing and would trigger the possibility of relief for his adversary.

Accordingly, the Court concluded that de novo resentencing was just and consistent with basic principles of contract law and the plain language of the plea agreement. Therefore, it vacated and remanded Erwin's case for resentencing with the Government relieved of its obligation to seek a downward departure.

In this opinion, the majority of the Third Circuit Court, sitting en banc, denied Erwin's petition for rehearing. Judge Ambro, joined by Judges Rendell, Greenaway, and Vanaskie, dissented from the denial of the petition for rehearing.

In his dissenting opinion, Judge Ambro states that this was not even a novel question when decided, because the appropriate remedy when a waived argument is brought on appeal is to enforce the waiver by not considering the argument. Accordingly, in the case at hand, the Court should have affirmed Erwin's sentence. Judge Ambro points out that the cases the majority relied on all involved presentence breaches that relieved the non-breaching party to restore the parties to the status quo before the breach. In Erwin's case, the breach came after sentencing; therefore, to restore the parties to their pre-breach positions, the Court should have nullified Erwin's appeal and affirmed his sentence. Judge Ambro adds that the majority's decision gives the Government more than it bargained for; that contrary to the typically restorative purpose of contract law, this decision is punitive; and that the majority provides no sound reason for its new remedy. To this last point, Judge Ambro cites a number of scathing reviews from commentators regarding the majority's decision.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133407po.pdf

Panel (if known): McKee, Chief Judge, and Rendell, Ambro, Fuentes, Smith, Fisher, Chagares, Jordan, Hardiman, Greenaway, Vanaskie, Krause, and Nygaard, Circuit Judges

Argument Date: December 31, 2014

Date of Issued Opinion: March 10, 2015

Docket Number: No. 13-3407

Decided: Petition for rehearing denied

Case Alert Author: Jaclyn Poulton

Counsel:
David R. Fine, Esq., Jeffrey M. Brandt, Esq., Norman Gross, Esq., Mark E. Coyne, Esq.

Author of Opinion: Judge Chagares

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 03/23/2015 03:06 PM     3rd Circuit     Comments (0)  

  John Cottillion et al. v. United Refining Company et al.―Third Circuit
Headline: Third Circuit holds that United violated ERISA's anti-cutback rule when it attempted to reduce or eliminate pension payments for former employees who received benefits between ages 60 and 65.

Area of Law: ERISA

Issues Presented: Whether the recalculation of retirement benefits that the United Refining Company and co-defendants provided in a pension plan to a specific class of former employees violated ERISA's anti-cutback rule?

Brief Summary: United provided pension plans to its employees under several different plans. After some employees began receiving payments under these pensions, United attempted to alter the payment scale for those who were receiving benefits between ages 60-65. This alteration led to some payments being reduced or eliminated for that group of former employees.

The Third Circuit found that the pension plans clearly explained how to calculate payments owed to those who, like the plaintiffs here, earned accrued benefits and left United before they were eligible to receive them. The Plans' method of calculation did not include a reduction for participants who took benefits before turning 65. The Third Circuit held that ERISA forbids United from drafting reductions into the Plans. The Third Circuit affirmed the district court, holding that United must pay the employees what it originally promised.

Extended Summary: In this class action, the plaintiff class consists of former employees of United whose pension plans vested but left the company too young to receive the benefits. These employees are called "terminated vested participants." The named plaintiff, John Cottillion had a pension plan with United in effect since 1980. Cottillion worked at United for 29 years, during which time his pension vested. However, Cottillion left United when he was 54, 6 years too early to receive benefits. Upon his departure from United, Cottillion received a letter stating that he would begin to receive benefits when he turned 60.

In 2002, United amended its pension plan and backdated it to 1995 to comply with ERISA. In 2005, a United representative found that it mistakenly did not reduce payments to employees who began receiving pension benefits when they were 60, under their plan, and not 65, which was the appropriate age under ERISA. Operational deviations from the terms of ERISA-governed plans can jeopardize their favorable tax treatment. Thus, United notified its terminated vested participants that their pension amounts would be reduced by a specific percentage if they elected to receive payments prior to age 65. United also notified terminated vested participants who were already receiving payments and were under age 65 that they would begin receiving lower payments to reflect the overages until the excess payments were recovered in accordance with the under 65 calculations.

In Cottillion's case, his pension of $506.58 per month was eliminated, and he was told he should repay the Plan $14,475. After these reductions, Plaintiffs sued, alleging that United's actions deprived them of a benefit to which they were entitled under the plan, in violation the U.S. Code, and that they violated ERISA's "anti-cutback" rule, which prohibits employers from amending a plan in a way that reduces benefits accrued under a defined benefit plan, such as the plans at issue here.

First, the Third Circuit found that the employees were not required to exhaust administrative remedies on their anti-cutback rule claim because exhaustion would have proved futile. Further, the Third Circuit found that the applicable plans, those created in 1980 and 1987, were unambiguous and afforded the terminated vested participants retirement benefits without any reduction for receiving benefits between ages 60 and 65. Finding clear language that allowed for early retirement starting at age 60, the Third Circuit held that United violated the anti-cutback rule by eliminating and/or reducing the benefit to plaintiffs because the benefit had already accrued.

Next, the Third Circuit found that United could not object to the 7.5% interest rate the district court mandated United pay to employees in the class to whom it had reduced or eliminated benefits. United raised this objection for the first time on appeal. Thus, the Third Circuit held that this argument was waived.

Finally, the Third Circuit held that the employees were not entitled to further relief. Class members who had not previously elected to receive benefits before age 65 could not receive damages if they were over 60 but had not already elected to receive the benefits.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/134633p.pdf

Panel (if known): Ambro, Chagares, and Vanaskie, Circuit Judges

Argument Date: October 1, 2014

Date of Issued Opinion: March 18, 2015

Docket Number: Nos. 13-4633 & 13-4743

Decided: Affirmed.

Case Alert Author: Antoinette Snodgrass

Counsel: Eugene D. Fowler, Christopher J. Rillo, Diane M. Soubly, Counsel for Appellants/Cross Appellees. Tybe A. Brett, Ellen M. Doyle, Joel R. Hurt, Counsel for Appellees/Cross Appellants. Jessica R. Amunson, Craig C. Martin, Matthew J. Renaud, Amanda S. Amert, Janet M. Jacobson, Scott J. Macey, Debra Davis, Kat Comerford Todd, Steven P. Lehotsky, Warren Postman, Counsel for Amicus Appellants/Cross-Appellees. Mary E. Signorille, Anita Khushalani, Counsel for Amicus Appellees/Cross-Appellants.

Author of Opinion: Ambro, Circuit Judge.

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 03/23/2015 02:50 PM     3rd Circuit     Comments (0)  

March 12, 2015
  United States v. Kaluza - Fifth Circuit
Headline: Fifth Circuit Affirms Dismissal of Some Manslaughter Charges Against BP Employees Stemming from the Deepwater Horizon Disaster.

Area of Law: criminal law; maritime law.

Issue Presented: Whether under 18 U.S.C. § 1115 (seaman's manslaughter) "[e]very . . . other person employed on any . . . vessel" includes only those persons responsible for the "marine operations, maintenance, or navigation of the vessel."

Brief Summary: On April 20, 2010, a blowout of oil, natural gas, and mud occurred during deepwater drilling operations at the Macondo well, located on the Outer Continental Shelf in the waters of the Gulf of Mexico. At the time of the blowout, the Deepwater Horizon, a drilling rig chartered by BP plc. (BP) from Transocean Ltd. (Transocean), was attached to the Macondo well. Eleven men died from the resulting explosions and fires on the Deepwater Horizon. Robert Kaluza and Donald Vidrine (Defendants) were "well site leaders," the highest-ranking BP employees working on the rig, and their duties were to direct the drill crew and contractors in their work while maintaining regular contact with the BP engineers on shore. The Defendants were indicted by a federal grand jury in the U.S. District Court for the Eastern District of Louisiana on twenty-three counts, including eleven counts of seaman's manslaughter in violation of 18 U.S.C. § 1115 (Counts 12-22). That statute imposes liability on "[e]very captain, engineer, pilot, or other person employed on any steamboat or vessel" who causes a death through misconduct or negligence. The district court granted Defendants' motion to dismiss counts 12-22 for failure to charge an offense because the Defendants did not fit within the category of persons potentially liable under the statute. The government appealed to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit agreed that the Defendants did not fall within the meaning of the phrase "[e]very . . . other person employed on any . . . vessel," and it accordingly affirmed the district court.

Extended Summary: On April 20, 2010, a blowout of oil, natural gas, and mud occurred during deepwater drilling operations at the Macondo well, located on the Outer Continental Shelf in the waters of the Gulf of Mexico. At the time of the blowout, the Deepwater Horizon, a drilling rig chartered by BP plc. (BP) from Transocean Ltd. (Transocean), was attached to the Macondo well. Eleven men died from the resulting explosions and fires on the Deepwater Horizon. Robert Kaluza and Donald Vidrine (Defendants) were "well site leaders," the highest-ranking BP employees working on the rig, and their duties were to direct the drill crew and contractors in their work while maintaining regular contact with the BP engineers on shore. The Defendants were indicted by a federal grand jury in the U.S. District Court for the Eastern District of Louisiana on twenty-three counts: eleven counts of involuntary manslaughter in violation of 18 U.S.C. § 1112 (Counts 1-11); eleven counts of seaman's manslaughter in violation of 18 U.S.C. § 1115 (Counts 12-22); and one count of negligent discharge under the Clean Water Act in violation of 33 U.S.C. §§ 1319(c)(1)(A) and 1321(b)(3) (Count 23).

18 U.S.C. § 1115, seaman's manslaughter, holds liable "[e]very captain, engineer, pilot, or other person employed on any steamboat or vessel" who causes a death through misconduct or negligence. The Defendants filed a motion to dismiss counts 12-22 for failure to charge an offense because neither defendant fell within the meaning of "[e]very . . . other person employed on any . . . vessel." The district court granted the Defendants' motion. It concluded that the seaman's manslaughter statute was ambiguous and applied the principle of ejusdem generis to define the key phrase. Ejusdem generis instructs that where general words follow an enumeration of specific terms, the general words are read to apply only to other items like those specifically enumerated. The district court concluded that in the context of the phrase, the terms "captain," "engineer," and "pilot" suggested a class of persons dealing with the operation and navigation of the vessel. Thus "every . . . other person" includes only those persons responsible for the "marine operations, maintenance, or navigation of the vessel." Since Defendants were not such persons, they did not fall within the ambit of the statute. The government appealed this determination to the U.S. Court of Appeals for the Fifth Circuit. (The other criminal counts were not at issue in the appeal.)

The Fifth Circuit affirmed the district court's dismissal of counts 12-22. The Court held that the plain text of the seaman's manslaughter statute is ambiguous, and, based on the canons of statutory interpretation, the text and context of § 1115, legislative history and purpose, case law, and the doctrine of lenity, the statute includes only those persons responsible for the "marine operations, maintenance, or navigation of the vessel." The Fifth Circuit held that the Defendants were engineers solely responsible for drilling and were not persons responsible for the "marine operations, maintenance, or navigation of the vessel." Therefore the Defendants were not included in "[e]very . . . other person employed on any . . . vessel."

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/14/14-30122-CR0.pdf.

Panel: Circuit Judges Higginbotham, Jones, and Prado

Argument Date: 7/8/2014

Date of Issued Opinion: 3/11/2015

Docket Number: No. 14-30122

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Sangita Katikineni Rao, Department of Justice, for Plaintiff-Appellant United States of America; Shaun G. Clarke, Smyser Kaplan & Veselka, L.L.P., for Defendant-Appellee Kaluza; Robert N. Habans, Jr., Habans & Carriere, for Defendant-Appellee Vidrine.

Author of Opinion: Judge Higginbotham

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 03/12/2015 10:31 PM     5th Circuit     Comments (0)  

March 11, 2015
  Seifert v. Unified Government -- Tenth Circuit
Case Name: Seifert v. Unified Government -- Tenth Circuit

Headline: Tenth Circuit holds that sworn testimony of law enforcement officers in civil lawsuits about matters observed while on duty is protected speech under the First Amendment.

Areas of Law: Constitutional Law

Issues Presented:

1. Is sworn testimony by a law enforcement officer in a civil lawsuit about matters observed while on duty protected by the First Amendment to the United States Constitution?

2. Did the Wyandotte County Sheriff's Department, through the Sheriff and Undersheriff, unlawfully retaliate against the Plaintiff for testifying against other law enforcement officers in a civil lawsuit?

Brief Summary:

The Plaintiff, a former officer of the Kansas City, Kansas Police Department and former Reserve Deputy of the Wyandotte County Sheriff's Department, provided sworn testimony in a civil lawsuit against several Drug Enforcement Administration agents. The testimony centered on the Plaintiff's investigation of the agents' use of excessive force against a criminal suspect. During the course of this civil trial, several of the Defendants removed the Plaintiff from investigations and revoked his reserve commission, effectively terminating his employment. The Plaintiff filed a lawsuit against the Sheriff, Undersheriff, and the Unified Government representing the Wyandotte County Sheriff's Department (WCSD), arguing that they retaliated against him because of his testimony and that this retaliation violated his First Amendment rights. The district court granted summary judgment for the Defendants, holding that the Plaintiff's testimony in the civil trial against the DEA agents was not legally protected speech and, therefore, the Defendants' actions were not unconstitutional.

The Tenth Circuit reversed the district court's award of summary judgment, holding that such testimony of a law enforcement officer can be (and was in this case) protected speech and that a reasonable finder of fact could find that the Defendants improperly retaliated against the Plaintiff because of his testimony.

Extended Summary:

The Plaintiff, Max Seifert, was a detective with the Kansas City, Kansas Police Department (KCKPD). He investigated a car accident in which a federal Drug Enforcement Administration (DEA) agent, Timothy McCue, illegally attempted to pass another vehicle driven by Barron Bowling. McCue sideswiped Bowling's vehicle, but Bowling did not stop. McCue called another agent for assistance and followed Bowling, who stopped his car once McCue turned on his sirens. McCue and the other agent pulled Bowling from the car, pinned him against the pavement, and "pummeled, kicked, insulted, and arrested" him. Despite calls from his colleagues and superiors to engage in a cover-up, the Plaintiff investigated McCue's conduct and testified as to Bowling's injuries during the trial against him. The Plaintiff was shunned by his colleagues and, ultimately, forced to retire from the KCKPD. He obtained a reserve commission from the WCSD that allowed him to work as a security guard. The commission required Plaintiff to volunteer 16 hours per month with the WCSD, which he did by assisting with criminal investigations.

The Plaintiff continued in his reserve capacity for three and a half years, until Defendant Donald Ash, who had previously served with the KCKPD for 34 years, was elected Sheriff. Ash appointed Defendant Larry Roland as Undersheriff. Shortly thereafter, Ash and Roland removed the Plaintiff from investigations, citing issues with the Plaintiff's credibility. Assistant U.S. Attorney Morehead and/or District Attorney Gorman allegedly told the Sheriff that, several years ago, the Plaintiff had provided testimony in federal court that the judge believed to be false. The judge expressed that belief in an order suppressing evidence.

Meanwhile, Bowling brought a civil lawsuit against the DEA agents involved in his arrest, various KCKPD members, and several other governmental entities. The Plaintiff in this case, Max Seifert, testified for Bowling. Five days after the Bowling trial concluded, the WCSD revoked the Plaintiff's reserve commission. Its stated reason for doing so shifted between arguments that the Plaintiff's commission violated "the Fair Standards Labor [sic] Act", that it was a purely administrative decision, and that it was in response to the Plaintiff's refusal to work at the short-staffed county jail.

The Plaintiff filed his lawsuit in the United States District Court for the District of Kansas, arguing that the acts of removing him from investigations and revoking his reserve commission were in retaliation against him for his Bowling testimony. His 42 U.S.C. § 1983 claim was that this retaliation violated his First Amendment rights, and his 42 U.S.C. § 1985 claim was that these actions were an unlawful conspiracy to deter him from testifying or injure him because of his testimony. The District Court dismissed part of the Plaintiff's claims, holding that the two-year statute of limitations precluded his 42 U.S.C. §§ 1983 and 1985 claims for any retaliatory actions preceding June 9, 2009. The district court granted Defendants' summary judgment motion on any remaining claims.

The Tenth Circuit reviewed the district court's award of summary judgment using a de novo standard of review. It began by considering the Plaintiff's 42 U.S.C. § 1983 claim. Under § 1983, a plaintiff is entitled to recover damages from a person who, while acting under the color of state law, violates the plaintiff's constitutional rights. The court noted that, as a reserve deputy, the Plaintiff did not enjoy First Amendment rights to the same extent that private citizens do. Citing the recent Supreme Court case of Lane v. Franks, 134 S. Ct. 2369 (2014), the court explained that the First Amendment protections for a government employee must balance that person's interest as a citizen in engaging in free speech against the government's interest, as an employer, in "promoting the efficiency of the public services it performs through its employees."

The court applied the Garcetti/Pickering test, which has five elements, to determine if the Plaintiff had a valid First Amendment retaliation claim. The Defendants only disputed three of the five elements, arguing that the speech was made pursuant to the Plaintiff's official duties (and was, therefore, not the protected speech of a private citizen), that the protected speech was not a motivating factor in the actions taken against the Plaintiff, and that the Defendants would have taken the same actions against the Plaintiff absent his testimony in the Bowling case.

The court first sought to determine whether the Plaintiff's testimony was speech made pursuant to his official duties. The court reviewed the holding in Lane, in which the Supreme Court held that "the First Amendment . . . protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities." The court noted that this protection might not be extended to law enforcement officers who are regularly called to testify in court as a part of their job duties, but concluded that the Plaintiff's testimony was not compelled by the WCSD as a part of his duties as a reserve officer. Though the Defendants argued otherwise, the court noted that they cited no evidence to suggest that the Plaintiff regularly provided court testimony as part of his official duties. The court also noted that, even if he were to regularly testify against criminal suspects in court proceedings, the testimony provided in the Bowling civil trial was not of the kind of testimony he would otherwise provide in his official capacity. The court held that the Plaintiff satisfied this element of the Garcetti/Pickering test. It further held that, as per Lane, the testimony was protected speech under the First Amendment.

The Defendants also argued that the Plaintiff's testimony in the Bowling trial was not a motivating factor in their decision to remove him from investigations and revoke his commission. The court considered each of these issues in turn, focusing its analysis on whether there was a sufficient evidentiary basis for a reasonable finder of fact to conclude that the Defendants' actions were in retaliation for the Plaintiff's Bowling testimony.

The court quickly dispatched the Defendants' argument that the Plaintiff was removed from investigations solely because he had a veracity issue that, as per the Supreme Court's holding in Giglio v. United States, 405 U.S. 150 (1972), precluded the Plaintiff from serving on investigations or testifying in either state or federal court. The court began its analysis by explaining the holding and implications of Giglio. That case involved a prosecutor who promised immunity from prosecution to a state witness but failed to disclose that promise to the defense. As the defense would almost certainly have used that information to impeach the witness, the Supreme Court ordered a new trial. The Supreme Court further held that "'[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility' will require a new trial." The Defendants argued that the Plaintiff had a Giglio issue because of the federal court order suppressing evidence, arguing that prosecutors would need to disclose that to the defense in any case the Plaintiff were to investigate. The court dispelled this notion and observed that, even if the prosecutors felt compelled to disclose the 1998 federal order to the defense counsel, there are evidentiary limits to what any defense counsel could do with such a disclosure. It reasoned that the order and any testimony about the judge's comments would be inadmissible in both federal court because of Fed. R. Evid. 608(b) and Kansas state court because of Kansas' own evidentiary rules. The court also noted that Undersheriff Roland had a similar Giglio issue arising from an opinion by the same federal judge who questioned the Plaintiff's credibility. The disparate treatment of Undersheriff Roland and the Plaintiff, as well as the other issues discussed, could allow a reasonably jury to find that the removal of Plaintiff from investigations was motivated by the Bowling testimony and not by any Giglio issue.

The court then considered the revocation of the Plaintiff's reserve commission. The Defendants had argued in the district court that the Plaintiff did not even have a commission to be revoked, as all such commissions are automatically revoked upon the election of a new Sheriff under Kan. Stat. Ann. § 19-805a (West 2008). The court quickly dismissed this argument because the Defendants waived the issue by failing to properly raise it on appeal. The court further explained that, even if it were to consider the issue, it would affirm the district court's rejection of the argument because it could well be inferred that the Sheriff reappointed those with reserve commissions by continuing to utilize them as reserve deputies indefinitely after taking office. Sheriff Ash's own testimony supported that inference.

Assuming that the Plaintiff had a commission that could be revoked, the court considered whether its revocation was motivated by the Plaintiff's Bowling testimony. The Defendants argued that their motive for revocation was purely based on the Plaintiff's refusal to work in a short-staffed county jail. The court noted the evolution of gross inconsistencies in the Defendants' explanations for why Plaintiff's commission was revoked and determined that a reasonable jury could find that the Defendants' explanations were mere pretext. The court held that the Plaintiff's evidence was sufficient to satisfy the motive element of the Garcetti/Pickering test for both his removal from investigations and the revocation of his reserve commission.

The court then considered whether the Plaintiff satisfied or could satisfy the but-for element of the Garcetti/Pickering test by proving that, but for his protected speech, he would have remained on investigations and retained his commission. The Defendants argued that the Plaintiff would have been removed from investigations in any event because prosecutors refused to take cases he had been involved in. The court found this argument to be without merit, noting that neither the Sheriff nor the Undersheriff could recall any reserve deputies ever testifying in a federal proceeding. It further noted that the only district attorney to raise the Giglio issue with the Sheriff did so months after the Plaintiff was removed from investigations and, even then, only said that he would consider the issue on a case-by-case basis. The court concluded that a reasonable jury could find but-for causation for the Plaintiff's removal from investigations.

Similarly, evidence provided by several witnesses demonstrated that the Defendants only asked the Plaintiff to volunteer in the county jail and the Plaintiff only refused to do so months after his commission had already been revoked. Even if this request was accompanied by an offer to reinstate his commission, his refusal at that time could not negate his cause of action for the prior revocation of his commission. The court held that the plaintiff provided sufficient evidence to allow a reasonable finder of fact to determine that his removal from investigations and the revocation of his commission was retaliation against him for his Bowling testimony.

The court turned its focus to the potential qualified immunity enjoyed by each of the Defendants. Turning first to the Unified Government, the court reviewed its prior decision in Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281 (10th Cir. 2007). In Simmons, the court held that "a municipality is responsible for both actions taken by subordinate employees in conformance with preexisting official policies or customs and actions taken by final policymakers, whose conduct can be no less described as the 'official policy' of a municipality." The Plaintiff argued that the Sheriff served as a final policymaker for the WCSD and that his conduct represented the official policy of that Department and, consequently, the Unified Government. In support of this argument, the Plaintiff cited several Kansas statutes that provide for the authority enjoyed by the Sheriff, impose upon him responsibility for the Undersheriff's conduct, and make his power coextensive with the county board. The Unified Government offered no argument in response to the Plaintiff's contentions, and so the court reversed the district court's award of summary judgment in favor of the Unified Government.

The court then considered the potential qualified immunity of Sheriff Ash and Undersheriff Roland. Citing the Supreme Court case of Pearson v. Callahan, 555 U.S. 223, 231 (2009), the court explained that "[t]he doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The court noted that the Lane opinion was not handed down until June 2014 and, prior to that, the Tenth Circuit had not considered whether testimony such as the Plaintiff's Bowling testimony was protected speech under the First Amendment. Because the law was not clearly established when the Plaintiff was removed from investigations and his commission revoked, Sheriff Ash and Undersheriff Roland were entitled to qualified immunity. The court affirmed the district court's award of summary judgment on the Plaintiff's 42 U.S.C. § 1983 claims as they applied to Defendants Ash and Roland.

The court reviewed the district court's award of summary judgment in favor of the Defendants as to the Plaintiff's 42 U.S.C. § 1985 conspiracy claims. The court swiftly reversed this decision. It explained that the evidence considered in the 42 U.S.C. § 1983 claims could be enough to demonstrate a conspiracy to prevent the Plaintiff from testifying in the Bowling case or otherwise injure him for doing so. The court did not consider any sovereign immunity or qualified immunity defenses to the Plaintiff's conspiracy claims because the Defendants did not raise any. The court reversed the award of summary judgment relating to the Plaintiff's 42 U.S.C. § 1985 claim as to all Defendants.

Finally, the court affirmed the district court's dismissal of the Plaintiff's state common-law claim for retaliatory employment action. Under Kansas state law, that cause of action is suspended if there is an adequate alternative remedy under state or federal law. In this case, 42 U.S.C. § 1983 provided an adequate alternative remedy to the Plaintiff.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3153.pdf

Panel: Kelly, Lucero, Hartz

Date of Issued Opinion: February 27, 2015

Docket Number: No. 13-3153

Decided: Affirmed in part, reversed in part, and remanded for further proceedings.

Counsel:
Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, Missouri, for Plaintiff - Appellant.

Carl A. Gallagher (Teresa A. Mata with him on the brief), of McAnany, Van Cleave &
Phillips, P.A., Kansas City, Kansas, for Defendants - Appellees.

Author: Hartz

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 03/11/2015 09:37 PM     10th Circuit     Comments (0)  

  Rivas v. Fischer - Second Circuit
Headline: After Serving 22 Years in Prison, Defendant Convicted of 1987 Murder Granted Writ of Habeas Corpus, citing Ineffective Counsel

Area of Law: Criminal Procedure; Habeas Corpus; Constitutional Law

Issue(s) Presented: Whether a writ of habeas corpus should be granted following the state court's denial of defendant's ineffective-assistance claim when the defense presented unchallenged expert testimony persuasively demonstrating that the victim could not have died on the day relied on by the prosecution.

Brief Summary: Petitioner Hector Rivas was convicted in 1993 of second degree murder for the 1987 killing of his ex-girlfriend Valerie Hill. The prosecution's case relied primarily on tying the murder to Rivas in a three-hour window on Friday, March 27, 1987 during which Rivas had no corroborated alibi. In 1999, Rivas petitioned for NYCPL § 440.10 relief, raising a claim of ineffective assistance and presenting unchallenged expert testimony persuasively demonstrating that Hill could not have died on March 27. The state court denied the claim.

In 2002, Rivas filed an amended petition for a writ of habeas corpus in the United States District Court for the Northern District of New York. After a lengthy battle, the petition was found by the Second Circuit not to be time-barred and was remanded to the District Court for Review. On review on the merits, the district court denied the petition in its entirety. The Second Circuit reversed and remanded, directing the district court to issue the writ. It concluded that the state court denial of Rivas's ineffective counsel claim was a rare "unreasonable application" of the United States Supreme Court's 1984 decision, Strickland v. Washington, because the defense demonstrated that Rivas's original defense counsel failed to satisfy his obligation to make reasonable investigations and that failure prejudiced Rivas's defense.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...4b8a68d87ff/3/hilite/

Extended Summary: Rivas was convicted in Onondaga County of second-degree murder for the killing of his ex-girlfriend Valerie Hill. At trial, the prosecution argued that Rivas killed Hill on the night of March 27, 1987. Rivas's counsel primarily relied on an alibi strategy, though there was a three-and-a-half hour window on that night during which Rivas had no corroborated alibi. The prosecution argued that Rivas killed hill during that time frame.

The prosecution's case primarily relied on the testimony of medical examiner Dr. Erik Mitchell, who at the time of the murder had estimated that Hill's death occurred sometime between Saturday, March 28 and Sunday, March 29, and that death on Friday was highly unlikely. However, at trial six years later, Dr. Mitchell testified that Hill likely died on Friday evening, during Rivas's alibi-less window. Dr. Mitchell claimed that this new finding came after reviewing his notes and brain slides. Despite its critical importance to the defense, Rivas's counsel failed to investigate the basis for Dr. Mitchell's revised findings regarding time of death.

In 1999, with new counsel, Rivas filed a motion to vacate the judgment of conviction pursuant to NYCPL § 440.10. The defense suggested that Dr. Mitchell had been under investigation by the District Attorney's office at the time, and had altered his original estimate to satisfy the District Attorney in hopes of avoiding criminal prosecution. Rivas also claimed that the autopsy slides on which Dr. Mitchell purportedly relied did not actually exist in the medical examiner's file. He also produced an uncontested affidavit of an independent expert in forensic pathology attesting that Hill most likely died between 3:30 p.m. on Saturday and 3:30 a.m. on Sunday. The state court denied the motion.

On June 19, 2002, Rivas filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern of New York raising substantially the same claims. After several rulings and remands on timeliness, the Second Circuit held that a credible and compelling showing of actual innocence warrants an equitable exception to the limitations period under the Antiterrorism and Effective Death Penalty Act (AEDPA) and, therefore, remanded to the District Court to hear Rivas' petition. After hearing oral argument on the merits of the petition, the District Court denied the petition. It held that the state court's determination was a reasonable application of the United States Supreme Court's holding in Washington v. Strickland that a defendant must show both that a counsel's performance was so deficient as not to constitute counsel guaranteed by the Sixth Amendment, and that the deficient performance prejudiced the defense.

In its de novo review, the Second Circuit found that the state court had unreasonably applied "Federal law, as determined by the Supreme Court of the United States," and that a writ of habeas corpus should be granted pursuant to 28 U.S.C. § 2254(d)(1). Given the importance of time of death to Rivas's alibi defense, Dr. Mitchell's revised findings placing the murder during the gap in Revis's alibi would have driven any reasonable attorney to further investigate those findings. According to the Second Circuit, Rivas's counsel "relied on an alibi defense when, in fact, Rivas did not have an alibi for the precise time that the prosecution claimed Rivas had murdered Hill. In effect, [counsel]'s alibi defense amounted to no defense at all." The state court's conclusion to the contrary was thus objectively unreasonable.

Further, in earlier finding that Rivas had presented a credible and compelling claim of actual innocence entitling him to an equitable exception to the AEDPA's limitation period, the Second Circuit determined that "a reasonable juror, apprised of all the evidence in the record, would more likely than not vote to acquit." For those same reasons, counsel's failure prejudiced the defense.

The Second Circuit remanded to the District Court and directed it to issue the writ of habeas corpus some twenty-two years after Rivas's conviction, unless the state has taken substantial and concrete steps within sixty days to retry him.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...4b8a68d87ff/3/hilite/

Panel: Circuit Judges Cabranes, Pooler, and Sack.

Argument Date: 12/09/2014

Date of Issued Opinion: 03/11/2015

Docket Number: No. 13-2974-pr

Decided: Reversed and Remanded, with direction to issue Writ of Habeas Corpus

Case Alert Author: Justin J. Fung

Counsel: Richard M. Langone, Langone & Associates , PLLC, Levittown, NY, for Petitioner-appellant. Priscilla Stewart, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor General, on the brief) for Eric T. Schneiderman, Attorney General for the State of New York, for Respondent-appellee.

Author of Opinion: Judge Cabranes

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 03/11/2015 06:49 PM     2nd Circuit     Comments (0)  

March 4, 2015
  United States v. McElmurry - Ninth Circuit
Headline: Ninth Circuit vacated and remanded defendant's criminal conviction for possessing and distributing child pornography, even though defendant was not subjected to double jeopardy.

Area(s) of Law: Constitutional Law; Evidence

Issue(s) Presented: 1) Whether charges of possession of child pornography and distribution of child pornography constitute double jeopardy when the charges are based on the same images. 2) Whether there is sufficient evidence to convict for distribution of child pornography without showing defendant had an active role in the distribution. 3) Whether the government violated Rule 403 of the Federal Rules of Evidence when the prosecution introduced highly prejudicial evidence at trial showing McElmurry bragged to another inmate that prosecutors would never find the vast majority of child pornography images McElmurry had in his possession as well as evidence McElmurry had been looking at child pornography since he was fifteen years old. 4) Whether McElmurry waived his objection to this evidence when his in limine objection was not renewed at trial.

Brief Summary: Circumstantial evidence linked McElmurry to a computer, which was used to share child pornography on an online service. Although the computer files were encrypted, it was inferred that the images used to convict McElmurry for possession and distribution of child pornography were located on this computer.

McElmurry argued that possession of child pornography is a lesser-included offense of distribution, so the prosecution, by using the same images to convict him of both charges, subjected McElmurry to double jeopardy. The court disagreed, finding that decisions, which held possession and receiving child pornography to be double jeopardy, were distinguishable from this case, for while it is impossible to receive something without possessing it, it is possible to both possess and distribute independently of each other. Since the proof of one charge is separate from the proof of the other, it was not double jeopardy to find McElmurry guilty of both charges based on the same images.

McElmurry also argued the sufficiency of the evidence was not enough to support a conviction for distribution, since he did not actively distribute the pornographic images. Instead, on-line users downloaded the images themselves. The court found McElmurry had already conceded that file sharing constitutes distribution, when the owner of the file can allow or deny access to others of the images in the file.

The court did find that McElmurry preserved his Rule 403 objection to unduly prejudicial evidence the prosecution had succeeded in introducing at trial. This was because even though the defenses' objections were not specific, it was because the prosecution did not proffer specific evidence before the judge changed his tentative ruling allowing the evidence into a definitive ruling. Therefore, the objection was preserved under Rule 103(b).

The court also found the judge erroneously allowed the evidence into trial, since the judge balanced the evidence under Rule 403 based on the prosecutions' representation of the character of the evidence, without an actual review of the evidence, prior to making the ruling. Lastly, the prosecution did not even attempt to fulfill its burden of showing harmless error in admitting this evidence. Instead, the prosecution emphasized the importance of the evidence to their case at trial.

Extended Summary: FBI agents used the identity of a member of an online file-sharing group known as "GigaTribe" to track down possessors and sharers of child pornography. They downloaded many images and videos from a "GigaTribe" user known as "TeenTrade." The agents were able to track the IP address to McElmurry's grandmother's house, which McElmurry often frequented. They obtained a search warrant, which the agents executed while McElmurry was at the home.

"TeenTrade" was online and active when the agents first entered the home, but the minute one of the three computers present at the residence was unplugged, extensive downloads from "TeenTrade" stopped. From this, the government inferred that this computer had extensive amounts of child pornography on it, even though the files were fully encrypted and not accessible by forensic analysis.

Further, circumstantial evidence suggested that McElmurry was Teentrade, as McElmurry's soft drink can was right by the computer in question, and the screen saver on this computer had the name "Super Dave" on it (McElmurry's first name is David). Based on these inferences, the government was able to convict McElmurry of one charge of possession of child pornography and one charge of distribution of child pornography.

McElmurry appealed on the grounds that (1) his two convictions were based on the same evidence which subjected him to double-jeopardy; (2) there was insufficient evidence to support his conviction for distribution; (3) the trial judge should have excluded some evidence under Federal Rules of Evidence 403, as the probative value of this evidence was substantially outweighed by the danger of substantial prejudice; and lastly (4) the defense did not waive their objection to this evidence by not renewing it at trial.

McElmurry argued that his convictions for possession and distribution of child pornography stemmed from the same images. Therefore this amounted to double jeopardy. He further argued the charge of possession is a lesser-included offense of distribution.

The panel reviewed this using the standard of "plain error," as this issue was not raised at trial. However, this standard did not affect their analysis, and did not save the convictions on that basis. This was because the court had controlling precedent in which convictions for receiving and for possessing child pornography stemming from the same images had been held to constitute double jeopardy. The court reasoned that if the defenses' theory were held to be correct, double jeopardy would require at least one conviction to be vacated on remand without the possibility of re-trial.

McElmurry relied on Blockberger v. United States, (under the "same-elements test" receiving necessarily involves possessing), and Davenport, (it is impossible to receive something without, at least for an instant, possessing it). In the cases on which McElmurry relied, possession was found to be a lesser-included offense of receiving child pornography. The Blockberger test of whether the same act constitutes a violation of two separate provisions is "whether each provision requires a proof which the other does not." However, the court distinguished these cases, as McElmurry's convictions were for possession and distribution, not possession and receiving. Unlike receiving, which requires possession at least at the moment of receipt, distribution does not. A distributor can act as a middle-man, and put two parties together so as to arrange distribution of contraband from one to another without ever being physically in possession of the material himself. A possessor of child pornography may choose not to share, and a distributor does not need to possess these images. Each count requires separate proof and therefore one charge is not a lesser-included charge of the other.

McElmurry also argued for a judgment of acquittal on the distribution charge since he did not actively do anything to cause the distribution of these images. The images were on a file-sharing program, and it was the FBI agent's actions (in pushing a button) that caused the download, and hence the image transfer. However, McElmurry conceded the court had already held in Budziak that maintaining child pornographic images in a shared folder so as to enable others to download, which others in fact do download, constitutes sufficient evidence of distribution. Testimony at trial showed McElmurry shared images in a GigaTribe folder, which was only accessible if the owner of the folder gave another user permission to access images in this folder. The court held this was sufficient to prove distribution.

The Rule 403 issue was more troubling to the panel. The prosecution did not merely attempt to prove the acts for which McElmurry was charged. Instead, the prosecution used statements McElmurry made to investigators four years earlier in an interview they conducted in connection with a state conviction for child pornography. In the interview, McElmurry admitted he had been looking at child pornography daily since he was fifteen years old, and that he traded images with others. The prosecution also presented a letter McElmurry had sent to an inmate that he knew from an earlier incarceration, which was written just prior to McElmurry being charged for the current offenses. In the letter, McElmurry called police, investigators, prosecutors, etc., a variety of derogatory names, and bragged that they would never find the vast majority of pornographic images he possessed.

Although McElmurry strenuously argued against admission of this evidence in limine, the prosecution argued for its admissibility as proof of "knowledge," and "lack of mistake." The prosecution argued this evidence was necessary to show that McElmurry knew the images were on the computer, he knew how to encrypt, and this evidence was necessary to counter a reasonable doubt McElmurry might raise that the images actually belonged to his mother or grandmother. The prosecution, as appellee, also made an argument in its brief that the evidence was admissible under Rule 414, Similar Crimes in Sexual-Assault Cases. However, the court chose not to address this argument since it had not been raised at trial, and the evidence still would have been weighed under Rule 403 anyway.

McElmurry, on the other hand, argued this evidence would be used to show a propensity to commit crimes involving child pornography, forbidden under Rule 404(a), and the probative value of this evidence was substantially outweighed by the danger of unfair prejudice under Rule 403.

The prosecution argued that McElmurry did not preserve his objection to admission of this evidence in limine, so it was waived. The court explained that the purpose of in limine resolutions was to enable planning and prevent interruptions at trial, and that arguing and losing in limine sufficed to preserve it. "[A]n objection to what the court had already ruled unobjectionable would have amounted to taking exception to an evidentiary ruling already made which, which Federal Rule of Evidence 103 says is unneccesary."

The partial dissenting opinion complained that the defenses' objection was not definitive, as it was not specific enough. The trial judge in limine tentatively allowed the evidence in question to be used at trial, subject to the prosecution providing a foundation later. But the Judge then interrupted himself in a discussion of another matter to make the ruling definitive before this occurred. Under United States v. Varela-Rivera, it was held that when the government fails to state clearly and precisely what evidence it will offer, it is not necessary for the defense to state clearly and precisely what evidence it is objecting to. Therefore, in light of the fact the trial judge interrupted himself in another matter to change his tentative ruling to a definitive ruling, the defenses' objection was as clear as it could be, and was therefore preserved on appeal.

The court held that evidence which the prosecution seeks to be used for a proper 404(b) reason such as to demonstrate knowledge, or lack of mistake must still be weighed using the 403 test, where the probative value must substantially outweigh the danger of unfair prejudice in order for the evidence to be admissible. In order properly analyze evidence, the trial judge must look at the specific reason the evidence is proffered, and then determine whether this reason is an element of the crime or crimes being charged. Then the evidence itself must be weighed under Rule 403, reliance on the characterization of the evidence by others is not enough. Every word must be read and analyzed, as a trial court cannot adequately judge whether words it has not heard or read will be unduly prejudicial. Here, the court found the trial judge had not read or heard the words offered as evidence before he made his ruling, which allowed them to be introduced at trial. The judge did not say he read them, the record did not show he read them, and the government confirmed the judge had not read them.

The court also held that the government did not bear its burden of proof that the error was harmless, which is ordinarily the next step in the analysis. This would have been hard to prove, as the first thing the prosecutor said at trial was "n his own words, the defendant, David McElmurry, is addicted to child pornography." Rather, the government attempted to prove the importance rather than the marginality of the evidence. This is irrelevant in a 403 determination.

For the full opinion: http://cdn.ca9.uscourts.gov/da...15/01/26/12-50183.pdf

Panel: Stephen Reinhardt, Andrew J. Kleinfeld, and Morgan Christen, Circuit Judges.

Date of Issued Opinion: January 26, 2015

Docket Number: 12-50183

Decided: Vacated and remanded

Case Alert Author: Michael Zatlin

Counsel: John Balazs, Sacramento, California, for Defendant - Appellant, Alessandra P. Serano, Assistant United States Attorney, San Diego, California, for Plaintiff - Appellee

Author of Opinion: Judge Kleinfeld, partial concurrence and partial dissent by Judge Christen

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 03/04/2015 01:49 PM     9th Circuit     Comments (0)  

  Omega S.A. v. Costco Wholesale Corporation - Ninth Circuit
Headline: Ninth Circuit affirms district court's grant of Defendant's motion summary judgment and attorneys' fees in a copyright infringement action.

Area of Law: Copyright

Issue Presented: Whether the first sale doctrine protects a buyer of a copyrighted work lawfully manufactured abroad when the buyer purchased gray market goods from an intermediary that acquired the watches from a buyer that purchased the goods in an authorized first sale in a foreign jurisdiction.

Brief Summary: The Ninth circuit affirmed the district court's grant of summary judgment to Costco because the first sale doctrine protects a buyer or other lawful owner of a copyrighted work lawfully manufactured abroad. The buyer/owner may lawfully import the copyrighted work without obtaining permission from the copyright order.

The court further held that Omega has no infringement cause of action because its right to control importation and distribution of the Omega Globe expired after the authorized first sale.

The Ninth Circuit court also affirmed the district court's grant of attorney's fees as being within its discretion because Omega sought to exert control over its watches instead of providing creative works to the general public, copyright law did not condone nor protect Omega's actions.

Concurring Opinion: Preliminarily, Judge Wardlaw disagreed with the majority's reliance on the first sale doctrine because the 9th Circuit court held it inapplicable on the first appeal and the parties did not brief or argue on appeal. Instead, the concurrence relied on the district court's copyright misuse rationale.

The concurrence explained that copyright misuse forbids the use of the copyright in a manner that violates the public policy embodied in the grant of copyright.

Identifying the defense of copyright misuse has been applied sparingly, it is available where a defendant can prove either 1) a violation of antitrust laws; 2) the copyright owner illegally extend its monopoly; or 3) the copyright owner violated the public policies underlying the copyright laws.

Based on Omega's attempt to control importation and distribution of watches with copyright law and Omega's communications with distributors stating it sought to stem the tide of unauthorized importation, the concurrence would affirm the judgment based on copyright misuse.

Extended Summary: Omega is a Swiss manufacturer of luxury watches, including the Seamaster, which sometimes bears an engraving of the Omega Globe Design. Omega copyrighted the design in 2003. Omega uses authorized distributors to sell its watches throughout the world.

Costco is an American discount warehouse corporation.

Although Omega and Costco discussed a possibly distributorship arrangement, the parties did not come to an agreement.

In 2004 Costco purchased 117 Seamaster watches bearing the Omega Globe from ENE Limited, who purchased the watches from an unidentified third party, who, in turn purchased the watches from an authorized foreign distributor. Omega approved the initial sale of the watches but not the importation nor Costco's sale of them.

The district court granted Costco's motion for summary judgment based on the first sale doctrine. The Ninth Circuit Court reversed and remanded based on precedent holding that the first sale doctrine did not apply to copyrighted works produced abroad. The Supreme Court summarily affirmed the Ninth Circuit decision. On remand the district court granted summary judgment based on Omega's misuse of copyright. The district court also granted attorney's fees in the amount of $396,844.17.

Reviewing the district court's grant of summary judgment de novo, the Ninth Circuit court held that the first sale doctrine protects a buyer or other lawful owner of a copyrighted work lawfully manufactured abroad. The buyer/owner may lawfully import the copyrighted work without obtaining permission from the copyright order.

The court further held that Omega has no infringement cause of action because its right to control importation and distribution of the Omega Globe expired after the authorized first sale.

The Ninth Circuit court affirmed the attorney's fees award because the District court weighed factors including 1) the degree of success obtained; 2) frivolousness; 3) motivation; 4) objective unreasonableness of losing party's factual and legal arguments; and 5) the need to advance considerations of compensation and deterrence, it was within its discretion to award attorney's fees. Additionally, the district court held that because Omega sought to exert control over its watches instead of providing creative works to the general public, copyright law did not condone nor protect Omega's actions.

Concurring Opinion: Preliminarily, Judge Wardlaw disagreed with the majority's reliance on the first sale doctrine because the 9th Circuit court held it inapplicable on the first appeal and the parties did not brief or argue on appeal. Instead, the concurrence relied on the district court's copyright misuse rationale.

Omega sued Costco for copyright infringement for selling forty-three Omega watches bearing the Globe Design, which Costco did not have permission to use. However, according to the district court, because Omega used the Globe Design to control the importation and sale of Omega watches, Omega misused its copyright.

To stem the tide of unauthorized dealers circumventing Omega's exclusive distributorship model through arbitrage, Swatch U.S.A. (Omega's parent corporation) devised a strategy to register its Globe Design for U.S. copyright protection to strengthen Omega's control over importation of Omega watches into the United States.

Omega sued Costco for copyright infringement related to the sale of forty-three Seamaster watches. The Ninth circuit reversed the district court's grant of summary judgment holding that the first sale doctrine was inapplicable to foreign-made goods first sold abroad.

On remand the district court granted Costco's motion for summary judgment based on the equitable defense of copyright misuse. Omega conceded it affixed the copyrighted Globe Design to use section 602 of the Copyright act, which makes importation of copyrighted goods without the copyright owner's authorization a violation of the copyright owner's exclusive right to distribute.

The concurrence examined the policy of copyright protection to incentivize artistic creativity for the public good. Absent the public benefit, copyright protection is unjustified.

Additionally, the concurrence examined the scope of copyright protection, stating that items with intrinsic utility apart from their expression or appearance are not copyrightable. The concurrence posited that Omega's watches were not copyrightable but only the Globe Design engraved on the watches sold by Costco.

The concurrence further explained that copyright misuse forbids the use of the copyright in a manner that violates the public policy embodied in the grant of copyright.

Identifying the defense of copyright misuse has been applied sparingly, it is available where a defendant can prove either 1) a violation of antitrust laws; 2) the copyright owner illegally extend its monopoly; or 3) the copyright owner violated the public policies underlying the copyright laws.

Based on Omega's attempt to control importation and distribution of watches with copyright law and Omega's communications with distributors stating it sought to stem the tide of unauthorized importation, the concurrence would affirm the judgment based on copyright misuse.

Additionally, equitable principles support the district court's refusal to enforce Omega's copyright as contrary to public policy.

The concurrence then distinguished a number of cases relied upon by Omega and ultimately made its decision based on the copyright misuse theory relied upon by the district court.

For the full opinion: http://cdn.ca9.uscourts.gov/da...15/01/20/11-57137.pdf

Panel: Dorothy W. Nelson, Kim McLane Wardlaw, and Johnnie B. Rawlinson, Circuit Judges.

Date of Issued Opinion: January 20, 2015

Docket Number: 12-56342

Decided: Affirmed

Case Alert Author: Brandon Powell

Counsel: Barry R. Levy (argued), Horvitz & Levy LLP, Encino, California; Jess M. Collen and Thomas P. Gulick, Collen IP, Ossining, New York, for Plaintiff-Appellant. Bruce P. Keller (argued), Debevoise & Plimpton LLP, Washington, D.C.; Norman H. Levine and Aaron J. Moss, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, California, for Defendant-Appellee.

Author of Opinion: Nelson, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 03/04/2015 01:33 PM     9th Circuit     Comments (0)  

  U.S. v. Zamudio - Ninth Circuit
Headline: Only one felony conviction supporting removal is needed to support deportation

Area of Law: Criminal law; Criminal Procedure; Immigration Law

Issue Presented: What is required to successfully collaterally attack deportation proceedings underlying a conviction for illegally re-entering the US

Brief Summary: Defendant was convicted of two felonies supporting deportation; one for kidnapping in 1994 and one for possession of methamphetamine in 2000. After the 2000 conviction Defendant was deported. After being deported Defendant re-entered the US and presented his now void legal permanent resident card to get past the border checkpoint. Defendant later found in the US by INS agents and arrested for violation of 8 U.S.C. § 1326 (being a deported alien "found in" the US after reentering without permission).

Defendant appealed his conviction on the basis that he was not advised that he could challenge the removal proceedings, that had ineffective assistance of counsel, that he was prejudiced by the lack of a constructive knowledge jury instruction, and that he had met his burden of proving a statute of limitations defense and as such a motion for acquittal should have been granted.

The 9th Circuit rejected all of Defendant's claims. They found that even had Defendant challenged his removal proceedings, this would have only have fixed one of the two underlying felonies and would still have left him eligible for deportation. Furthermore, Defendant's defense attorney made all the arguments he could reasonably have been expected to make given the law at the time. The panel also reasoned that given Defendant's successful efforts to prevent border agents from learning he was not allowed to reenter the US there was no justification for imputing constructive knowledge of his illegal status. Since the statute of limitations tolls if defendants use false travel documents to gain readmission, defendant could not have met the burden to put on a statute of limitations defense here.

For these reasons, the panel affirmed Defendant's conviction.

Extended Summary: Defendant, Zamudio, was born in Mexico and eventually came to the United States where he married a US citizen and became a legal permanent resident. In Defendant was convicted of kidnapping and was sentenced to three years in prison. In 2000, Defendant was convicted of felony possession of methamphetamine and served 100 days in jail. After completing his second sentence, Defendant was informed by the US Immigration and Naturalization Service (INS) that he was removable due to both his 1994 and 2000 convictions. At that time Defendant retained an attorney to represent him and a removal hearing followed.

Defendant was present at the removal hearing, along with a Spanish interpreter; Defendant's attorney was not physically present at the hearing but participated in the hearing by telephone. Defendant's attorney admitted that Defendant had no claim to US citizenship, that Defendant was convicted for possession of methamphetamine in 2000 and kidnapping in 1994. Defendant's attorney further admitted that each conviction made Defendant subject to deportation and that no relief was available. The immigration judge then ordered Defendant to be removed to Mexico.

Defendant later travelled with his then current wife from Mexico back into California. To accomplish this Defendant had his wife bring his now-void legal permanent resident card and had her drive to a US port of entry, both of which were given to the border agent. After examining the documents provided t, the agent allowed Defendant's vehicle to pass.

A few years later, in 2012, Defendant was again in jail and came to the attention of INS agents. Defendant was quickly indicted for that offense. Defendant brought a motion to dismiss the indictment based on two main points: 1) that the immigration judge failed to advise Defendant that he could apply for relief from removal; and (2) that Defendant's attorney provided ineffective assistance of counsel when he conceded that Defendant's drug problem was for cocaine. The motion to dismiss was denied; the court reasoned that 1) Defendant was removable under the 1994 kidnapping conviction given that it was a crime of violence, and (2) that the 2000 conviction was also a removable offense since it was for possession of methamphetamine. Additionally, the court concluded that even had Defendant been granted relief from removal in 1994, that would only have made Defendant ineligible for relief from removal of the 2000 conviction.

The case went to trial and the jury was unable to reach a verdict. Defendant claimed that the statute of limitations had begun to run in 2001 when he presented his ID card to a border agent and as such had already expired. However, the court denied this motion since the statute of limitations tolls if a defendant gains readmission to the US by providing false travel documents. Based on these findings, the court found Defendant guilty and he was sentenced to 37 months in prison Defendant appeals on the grounds that the district court erred by: (1) denying Defendant's motion to dismiss due to underlying deportation proceedings; (2) omitting a jury instruction on constructive knowledge; and (3) denying Defendant's motion for acquittal at the close of evidence.

The 9th Circuit ("the panel") reviewed de novo the district court's denial of a motion to dismiss an indictment. Reviewing the underlying deportation proceedings, the panel held Defendant failed to successfully attack the proceedings. In order to successfully challenge the validity of the underlying deportation order, the Defendant must show that (1) he exhausted any available administrative remedies for relief against the order; (2) the deportation proceedings denied him the opportunity for judicial review; and (3) the entry of the order was "fundamentally unfair." The order is "fundamentally unfair" only if Defendant shows both that his due process rights were violated and that he was prejudiced as a result.

Here, both of Defendant's convictions made him removable. The fact that his attorney admitted that Defendant's 2000 conviction was for methamphetamine only served to relieve the government from any obligation of presenting evidence on the facts surrounding the drug offense. Even if the immigration judge then erred by failing to advise Defendant that he could apply for relief from removal, Defendant was not prejudiced here since obtaining relief for the 1994 conviction would have made him ineligible for the same relief in 2000. In other words, even if Defendant had obtained relief in 1994 he would still have been removable after his 2000 conviction.

While Defendant also claimed that he was ineffectively assisted by counsel, the standard for such claims under the Fifth Amendment in immigration cases is higher than the Sixth Amendment standard set forth in other caselaw. Here, the panel found that Defendant failed to meet even the lesser Sixth Amendment standard and as such would necessarily fail the Sixth Amendment requirements. Defendant's counsel could not have been expected to make legal arguments that had yet to be established at the time of Defendant's removal proceeding. Additionally, Defendant failed to demonstrate prejudice here since he fails to allege that the admission by his attorney was factually inaccurate here. Given this, the panel held that Defendant's counsel did not perform below an objective standard of reasonableness here.

The panel next turned to Defendant's challenge of the jury instructions given. The instructions were reviewed de novo for their accuracy and for abuse of discretion as to their formulation. The statute of limitations begins to run when an alien is discovered and identified by the immigration authorities. This rule is justified by the fact that states do not wish to reward deception by allowing such deception to toll the statute of limitations. Here the only facts available to the border patrol agents was that they were presented with a seemingly valid travel document and even the exercise of due diligence would not have allowed the agents to discover that Defendant's entry was illegal. As such, the panel declined to allow Defendant's status to be imputed through constructive knowledge.

Lastly, the panel rejected Defendant's argument that no reasonable jury could have found he failed to meet his burden of proving his statute of limitations defense and as such that his motion for acquittal should have been granted. Given the panel's above analysis regarding the statute of limitations defense, the panel found this final argument unpersuasive.

For the reasons listed above, the 9th Circuit affirmed the Defendant's conviction for being found in the US after reentering without permission.

Panel: Judges Wallace, Schroeder, and Owens

Date of Issued Opinion: January 14, 2015

For the Full Opinion: http://cdn.ca9.uscourts.gov/da...15/01/14/13-10322.pdf

Docket Number: 3:12-cr-00532-WHA-1

Decided: Affirmed

Case Alert Author: Seth DuMouchel

Author of Opinion: Judge Wallace

Case Alert Circuit Supervisor: Professor Ryan T. Williams

Edited: 03/06/2015 at 02:13 PM by Ryan Williams

    Posted By: Ryan Williams @ 03/04/2015 01:30 PM     9th Circuit     Comments (0)  

  City of San Jose v. Bud Selig; Commissioner of Baseball - Ninth Circuit
Headline: Ninth Circuit Declares Baseball Exemption Bars Antitrust Claims Regarding Franchise Relocations

Areas of Law: Antitrust Law, Unfair Competition Law

Issue Presented: Whether the Major League Baseball's delay in granting approval of the Oakland Athletics' franchise relocation to San Jose violated state and federal antitrust laws, California's consumer protection statute, and California tort law.

Brief Summary: Having believed that a several-year delay of approval of relocating the Oakland Athletics' franchise was actually an attempt to halt its relocation to San Jose, the city ("Plaintiff") filed suit against the Major League Baseball and its commissioner, Bud Selig ("Defendants"). Plaintiff alleged violations of state and federal antitrust laws, California's consumer protection statute, and California tort law. Applying the baseball exemption, the district court granted Defendants' motion to dismiss all but the tort claims.

The Ninth Circuit, under the authority of both case law and Congressional acquiescence, maintained that the baseball exemption barred antitrust claims against "the business of providing public baseball games for profit." Because designation of franchises to particular geographic territories interferes with the public exhibition of professional baseball, the Court determined that franchise relocation falls within the scope of the baseball exemption and affirmed the holding of the district court.

Extended Summary: In an attempt to increase profits, the Oakland Athletics entered into an option agreement with the City of San Jose ("Plaintiff") to build a stadium and relocate the franchise. However, because San Jose falls within the exclusive operating territory of the San Francisco Giants, three-quarters of the Major League Baseball's clubs were required to approve the relocation. In 2009, a "special Relocation Committee" was established to investigate the implications of the move for the league. Four years later, the committee had not yet approved the move, leaving the land to sit unused.

Having believed the delay was an attempt to halt relocation and preserve the Giants' local monopoly, Plaintiff filed suit against the MLB and its commissioner, Bud Selig ("Defendants"), alleging violations of state and federal antitrust laws, California's consumer protection statute, and California tort law. The district court, applying the baseball exemption, granted Defendants' motion to dismiss all but the tort claims. The court declined to retain supplemental jurisdiction over the tort claims and dismissed them without prejudice.

In its discussion, the Ninth Circuit provided the scope of baseball's exemption from antitrust laws through three cases: Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, Toolson v. New York Yankees, Inc, and Flood v. Kuhn. In Federal Baseball, the US Supreme Court held that the Sherman Antitrust Act did not apply to the business of "giving exhibitions of base ball [sic.]" because such "exhibitions" were a state affair. Toolson affirmed Federal Baseball, recognizing that Congress had considered bringing baseball under federal antitrust laws by legislation, but chose not to. Flood also upheld the baseball exemption under the principle of stare decisis and the understanding that Congress accepted the holdings in Federal Baseball and Toolson.

Plaintiff argued that the holding in Flood should have been limited to its facts and applied only to baseball's reserve clause rather than to franchise relocation. In the alternative, Plaintiff argued that if the baseball exemption did extend beyond the reserve clause, the case must be remanded to the district court to determine whether franchise relocation was sufficiently related to "baseball's unique characteristics and needs" as stated in Flood and warranted exemption.

The Ninth Circuit rejected Plaintiff's argument by referencing Portland Baseball Club, Inc. v. Kuhn, in which that court cited to Flood even though the antitrust claim had nothing to do with the reserve clause. With respect to Plaintiff's alternative argument, the Ninth Circuit pointed out that other than the isolated language quoted by Plaintiff, nothing else in Flood suggested that the reserve clause was exempted based on some fact-sensitive analysis of its role within the baseball industry. Instead, the exemption extended to the entire "business of providing public baseball games for profit between clubs of professional baseball players." Although the Court noted that the baseball industry is not completely immune from antitrust suits, it identified that the designation of franchises to particular geographic territories fell within the ambit of providing public baseball games for profit, and thus resulted in its exemption. The Court also added that Congress' enactment of the Curt Flood Act of 1998 withdrew baseball's antitrust exemption with respect to the reserve clause but explicitly maintained it for franchise relocation.

As with the federal claims, Plaintiff's state antitrust claims were equally unpersuasive according to the Court. The Court noted that state antitrust claims constituted an impermissible end run around the baseball exemption. Furthermore, the Court found no violation of California's unfair competition law because Defendants' conduct was not found to be an unreasonable restraint of trade.

Accordingly, the Court affirmed the holding by the district court.

For the full opinion: http://cdn.ca9.uscourts.gov/da...9%20Opinion.pdf


Panel: Alex Kozinski, Barry G. Silverman, and Richard R. Clifton, Circuit Judges

Date of Issued Opinion: January 15, 2015

Docket Number: 14-15139

Decided: Affirmed.

Case Alert Author: Daniel S. Seu

Counsel: Joseph W. Cotchett (argued), Philip L. Gregory (argued), Frank C. Damrell, Jr., Anne Marie Murphy, Camilo Artiga-Purcell of Cotchett, Pitre & McCarthy, LLP, Burlingame, California, and Richard Doyle, Nora Frimann, of the Office of the City Attorney, San Jose, California for Appellants; John W. Keker (argued), Paula L. Blizzard, R. Adam Lauridsen, Thomas E. Gormanof Keker & Van Nest LLP, San Francisco, California, and Bradley I. Ruskin of Proskauer Rose LLP, New York, New York, and Scott P. Cooper, Sarah Kroll-Rosenbaum, Jennifer L. Roche, Shawn S. Ledingham, Jr. of Proskauer Rose LLP, Los Angeles, California for Appellees.

Author of Opinion: A. Kozinski, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

Edited: 03/04/2015 at 01:34 PM by Ryan Williams

    Posted By: Ryan Williams @ 03/04/2015 01:26 PM     9th Circuit     Comments (0)  

February 27, 2015
  Marcel Fashions Group, Inc. v. Lucky Brand Dungarees, Inc., et. al.--Second Circuit
Headline: Second Circuit Lets Trademark Claim Against Lucky Brands Go Forward

Area of Law:
Trademark Infringement

Issue Presented: Whether the plaintiff's trademark infringement claim was barred by the doctrine of res judicata.

Brief Summary: Plaintiff-Appellant Marcel Fashions, owner of the trademark "Get Lucky," has been selling jeans under that mark since 1986. In 1990, defendant-appellee Lucky Brand Dungarees began selling jeans under the mark "Lucky Brand" as well as other marks with the word "Lucky." Marcel Fashions has brought two previous actions against Defendants, each time asserting trademark infringement. In the first action, a settlement was reached where Lucky Brand would stop using "Get Lucky." In the second action, the Final Order and Judgment stated that Lucky Brand and affiliated parties (the "Defendants") had committed trademark infringement by using the "Get Lucky" and "Lucky Brand" trademarks; it further enjoined Lucky from using the "Get Lucky" mark. In the instant action, Marcel asserts that Defendants infringed on Marcel's "Get Lucky" trademark by using the mark in an identical manner for which the Defendants were found liable in a previous action. The District Court granted summary judgment for Defendants, holding that Marcel's claims were precluded by res judicata because the claims were similar to a previous action. The Second Circuit reversed, stating that "winning a judgment based on the defendant's violation of the plaintiff's rights does not deprive the plaintiff of the right to sue the same defendant against for the defendant's further subsequent similar violations." The court added, however, that the injunction from the earlier lawsuit had not clearly prohibited Lucky from using the "Lucky Brand" mark - it had only explicitly forbade use of the "Get Lucky" mark. It therefore affirmed the district court's refusal to hold Defendants in contempt, and remanded the case to go forward. The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...12c33/2/hilite/


Extended Summary: Plaintiff-Appellant Marcel Fashions holds a federal trademark for "Get Lucky" and has sold jeans under that mark. Defendants-Appellees own its own trademarks including "Lucky Brand" and "Lucky Brand Dungarees." Plaintiff has previously brought suit against Defendants alleging unfair competition and trademark infringement. The parties settled in the first action. The settlement provided that Lucky Brand "shall desist henceforth from use of 'Get Lucky' as a trademark," while acknowledging the Defendant's right "to use, license and/or register the trademark LUCKY BRAND and/or any other trademarks...." In the second action, Plaintiff alleged inter alia, that Defendants breached their previous settlement agreement. At the conclusion of the second action, the jury found that Defendants did indeed infringe upon Plaintiff's "Get Lucky" mark after the date of their first settlement and thus awarded Plaintiff compensatory and punitive damages. The lower court's Final Order and Judgment in the second action enjoined Defendants from using the "Get Lucky" mark and also found that Defendant had infringed Marcel Fashion's "Get Lucky" trademark by using "Get Lucky, "Lucky Brand" and other marks with the word "Lucky."

In the instant action, Plaintiff asserts that that Defendants infringed Plaintiff's "Get Lucky" trademarks in the "identical manner and form and on the same goods for which they were found liable for infringement" in the second action. The lower court granted Defendant's motion for summary judgment under the doctrine of res judicata and further denied Plaintiff's motion for leave to file an amended complaint based on claim preclusion. Lastly, the district court also denied plaintiff's motion to hold Defendants in contempt for violating the terms of the second action.
The Second Circuit determined that Plaintiff's complaint and leave to file an amended complaint was not barred by the doctrine of res judicata and therefore vacated the lower court's ruling. The court explained that "[w]inning a judgment based on the defendant's violation of the plaintiff's rights does not deprive the plaintiff the right to sue the same defendant again for the defendant's further subsequent similar violations." The Second Circuit further noted that claim preclusion does not bar a claim arising out a "continuance of the same course of conduct." If this were the case, the court reasoned, Lucky Brand would be free to infringe on Marcel's trademark in perpetuity.

The Second Circuit did, however, affirm the lower court's denial of Marcel's motion to hold Lucky Brand in contempt for violating the injunction issued in the second action by its subsequent use of the "Lucky Brand" marks. The Court found that the order in question was unclear, as it did not clearly forbid Lucky Brand from using the "Lucky Brand" marks. Therefore, the Second Circuit found no error in the lower court's denial of the contempt motion.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...12c33/2/hilite/


Panel: Circuit Judges Leval, Calabresi, and Lynch

Argument Date:
February 5, 2014

Date of Issued Opinion: February 25, 2015

Docket Number: 12-4341-cv

Decided: Affirmed in Part and Vacated in Part

Case Alert Author: Eddie Chang

Counsel: Matthew A. Pek, Law Offices of Matthew A. Pek, Esq., for Plaintiff-Appellant; Leslie Gordon Fagen, Paul, Weiss, Rifkind, Wharton & Garrison LLP (Darren W. Johnson, on the brief), for Defendant-Appellees

Author of Opinion:
Judge Leval

Circuit: 2nd Circuit

Case Alert Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 02/27/2015 12:52 PM     2nd Circuit     Comments (0)  

February 26, 2015
  Matthews v. City of New York - Second Circuit
Headline: Second Circuit Reinstates NYPD Officer's Suit Against New York City Alleging Retaliation for Complaints He Made About Precinct Arrest Quotas

Area of Law: First Amendment

Issue(s) Presented: Whether a New York City police officer's complaints about arrest quota policies within his precinct were made within his official capacity as a public employee and, therefore, were not protected speech under the First Amendment.

Brief Summary: Plaintiff-appellant, Craig Matthews, a New York Police Department officer, sued various New York City police department officials (the NYPD) alleging he faced retaliation in violation of the First Amendment for comments he made to his commanding officers about an arrest quota policy at his precinct. The United States District Court for the Southern District of New York granted the NYPD's motion for summary judgment, holding that Matthews' complaints were made as a public employee, not as a private citizen and, therefore, his speech was not protected by the First Amendment. The Second Circuit disagreed, holding that Matthew's comments were not made as part of his official duties but, instead, as a private citizen. Accordingly, the Second Circuit vacated the district court's grant of New York City's motion for summary judgment and remanded for further proceedings.

The full text of the opinion can be found at: http://www.ca2.uscourts.gov/de...05800/1/hilite/


Extended Summary (if applicable): Plaintiff-appellant Craig Matthews, an officer in the of the New York Police Department's (NYPD) 42nd Precinct, was unhappy about a precinct quota system, mandating arrests and stop-and-frisks and, in 2009, reported his concerns to his then-Captain. Thereafter, in 2011, Matthews met with his commanding officers to voice his concerns with the quota system.

In 2012, Matthews sued under 42 U.S.C. §1983, alleging that the NYPD violated his First Amendment rights by retaliating against him for his outspoken opinions in the form of punitive assignments, denial of overtime and leave, separation from his career-long partner, humiliating treatment by supervisors, and negative performance reviews. The NYPD moved to dismiss, arguing that Matthews' speech was made pursuant to his official employment duties and therefore was not protected speech under the First Amendment. The district court, addressing just this narrow issue, granted the NYPD's motion to dismiss, agreeing that Matthews' speech was made as an employee of the NYPD, not as a private citizen.

The Second Circuit disagreed with the district court, concluding instead that Matthews' was speaking as a private citizen, vacated the district court's grant of summary judgment and remanded the case for further proceedings. The court reasoned that Matthews' opinions about the quota policy were concerns about broad policy issues not related to his actual or functional job responsibilities. Additionally, the court noted that NYPD commanding officers are required to hold community council meetings at which the public is invited to raise concerns about policing practices. Accordingly, the court held that when a public employee, whose duties do not involve formulating, implementing, or providing feedback on a policy that implicates a matter of public concern, engages in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as a public employee.

The full text of the opinion can be found at: http://www.ca2.uscourts.gov/de...05800/1/hilite/


Panel (if known): Circuit Judges Walker and Hall; District Judge Murtha

Argument Date: 04/24/2014

Date of Issued Opinion: 02/25/2015

Docket Number: No. 13-2915-cv

Decided: Vacated and Remanded

Case Alert Author: Jesse M. Kantor

Counsel: Christopher Dunn, (Erin Harrist, Arthur Eisenberg, Alexis Karterton, on the brief), New York Civil Liberties Union Foundation, New York, N.Y., for plaintiff-appellant.

Marta Ross, (Edward F.X. Hart, William S.J. Fraenkel, on the brief) for Zachary W. Carter, Corporation Counsel for the City of New York, New York, N.Y., for defendant-appellee.

Author of Opinion: Judge Walker, Jr.

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 02/26/2015 09:05 PM     2nd Circuit     Comments (0)  

February 24, 2015
  Garcia v. Jane & John Does - Second Circuit
Headline: In Amended Opinion, Second Circuit Dismisses Occupy Wall Street Protesters' False Arrest Suit Against New York City Police Officers

Area of Law: Qualified Immunity, False Arrest, Probable Cause

Issue(s) Presented: Whether the district court erred in denying defendant New York City police officers' motion to dismiss false arrest suit on grounds of qualified immunity.

Brief Summary: Plaintiffs-appellees were arrested on October 1, 2011 during a march in support of the Occupy Wall Street movement, for blocking the Manhattan roadway entrance to the Brooklyn Bridge. They sued the defendants-appellants, New York City Police Department (NYPD) officers, for false arrest in violation of their First, Fourth and Fourteenth Amendment rights. The United States District Court for the Southern District of New York denied the officers' motion to dismiss the complaint and the NYPD officers' appealed.

On August 21, 2014, the Second Circuit affirmed the district court's judgment by a divided vote. However, on December 17, 2014, the Court entered an order withdrawing the earlier opinion and granting appellants' petition for rehearing en banc. In its amended opinion, the Second Circuit reversed the judgment of the district court denying the motion to dismiss, and remanded with instructions to dismiss the complaint. Because the amended opinion reflects the outcome sought by appellants in their petition for rehearing, the court further ruled that the case no longer warrants en banc consideration.

The full text of the opinion can be found at: http://www.ca2.uscourts.gov/de...57bce/1/hilite/


Extended Summary: Plaintiffs-appellees were arrested on October 1, 2011 during a march in support of the Occupy Wall Street movement. Based upon the complaint and video and picture exhibits submitted by plaintiffs, thousands of Occupy Wall Street demonstrators participated in the planned, but unpermitted, march from downtown Manhattan to the Brooklyn Bridge. The New York Police Department (NYPD) was aware of the intended event and had police officers on hand, escorting and, at times, directing marchers across certain streets against traffic signals and other traffic rules.

When the marchers arrived at the Manhattan entrance to the Brooklyn Bridge, a bottleneck developed, creating a large crowd at the entrance to the Bridge's pedestrian walkway. While one group of demonstrators remained on the pedestrian walkway, another large group moved onto the roadway, blocking traffic, where they were met and blocked by a line of police officers. Video footage revealed that NYPD officers made announcements to the crowd to stop obstructing traffic and step back onto the sidewalk or be subject to arrest for disorderly conduct. The plaintiffs asserted, however, they did not hear any warnings and it is unclear whether most demonstrators could hear the officers' warnings over the significant crowd noise. Officers arrested over 700 people who remained on the Bridge roadway, including the plaintiffs-appellees.

Plaintiffs sued the defendant-appellant NYPD officers in the United States District Court for the Southern District of New York or false arrest in violation of their First, Fourth and Fourteenth Amendment rights. Plaintiffs alleged that, by leading the march toward the bridge, and then moving into the roadway at the entrance to the Brooklyn Bridge, the NYPD officers effectively granted marchers an actual and apparent grant of permission to follow. They claimed they were led to believe the NYPD was escorting the protest. The NYPD officers moved to dismiss the claims on the grounds of qualified immunity. The district court denied the motion, holding that the allegations established that a reasonable officer would have known that he lacked probable cause to arrest plaintiffs and, although plaintiffs had clearly violated the law by entering the roadway and blocking vehicular traffic, no reasonable police officer could have believed that plaintiffs had received fair warning that their behavior was illegal.

The NYPD officers appealed and, on August 21, 2014, the Second Circuit affirmed the district court's judgment by a divided vote. However, on December 17, 2014, the court entered an order withdrawing the earlier opinion and granting appellants' petition for rehearing en banc. In its amended opinion, issued today, the Second Circuit reversed the district court and remanded with instructions to dismiss the complaint. Additionally, because the amended decision reflects the outcome sought by appellants in their petition for rehearing, the court found that the case no longer warrants en banc consideration.

The Second Circuit held that there was sufficient evidence to establish probable cause for plaintiffs' arrests for disorderly conduct, because the officers could have reasonably inferred that the plaintiffs were either intentionally obstructing traffic, or were aware there was a substantial and unjustifiable risk they were doing so. The court further concluded that plaintiffs' asserted belief that the officers gave them implied permission to violate traffic laws might provide a defense in a criminal charge, but was not relevant to establishing probable cause for the arrest. Instead, the Court evaluated whether any such defense was so clearly established as a matter of law, and whether the facts establishing that defense were so clearly apparent to the officers on the scene as a matter of fact, that any reasonable officer would have appreciated that there was no legal basis for arresting plaintiffs.

The court rejected plaintiffs' contention that it could not dismiss the complaint so long as any arresting officer might reasonably have anticipated that some protestors would reasonably interpret the police behavior as implied permission, reasoning that police officers could not be required to engage in a speculative inquiry into the potential state of mind of the demonstrators.

The full text of the opinions can be found at: http://www.ca2.uscourts.gov/de...57bce/1/hilite/

Panel: Judges Calabresi, Livingston, and Lynch

Argument Date: 04/22/2013

Date of Issued Opinion: 02/23/2015

Docket Number: 12-2634-cv

Decided: Reversed

Case Alert Author: Jesse M. Kantor

Counsel: Mara Verheyden-Hilliard (Andrea Hope Costello and Carl Messineo, on the brief), Partnership for Civil Justice Fund, Washington, D.C., for Plaintiffs-Appellees.
Ronald E. Sternberg, Assistance Corporation Counsel (Leonard Koerner and Arthur G. Larkin, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, for Defendants-Appellants.

Author of Opinion: Judge Lynch

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 02/24/2015 08:08 PM     2nd Circuit     Comments (0)  

  Eddie McBride; Leonard Riley, Jr.; Eddie Knight; Charles S. Miller-Bey v. International Longshoremen's Association - Thir
Headline: Third Circuit Court of Appeals rules a party suing under the Labor-Management Relations Act does not have to win monetary damages to be a prevailing party and motive of the lawsuit does not matter in determining whether the lawsuit serves a common benefit for the members of the union.

Area of Law: Prevailing Party under the Labor-Management Relations Act.

Issues Presented: Whether a party can be a prevailing party under the Labor-Management Relations At if the party does not win any monetary damages.

Brief Summary: Eddie Knight ("Knight") brought an action against the International Longshoremen's Association ("the Union") based on a hearing where the Union decided to discipline Knight. Knight claimed the Union had violated certain rights, and eventually the District Court ordered the Union to change certain procedures. After the second hearing, Knight sued for damages, which were denied by the District Court and Third Circuit Court of Appeals. The District Court eventually awarded Knight attorney's fees and costs in excess of $200,000, which the Union appeals in this lawsuit.

The Union claimed Knight was not eligible for attorney's fees as a prevailing party under the Labor-Management Relations Act because he did not win any monetary damages. The Third Circuit disagreed and reasoned that Knight had prevailed in the earlier proceedings, which required the Union to change certain procedures. The Court further explained that Knight's motive for bringing the lawsuit was immaterial in determining whether the lawsuit conferred a common benefit to all union members.

Significance (if any):

Extended Summary: Eddie Knight ("Knight") brought an action against the International Longshoremen's Association ("the Union") after the Union concluded Knight committed three violations of the Union's constitution. Knight claimed the Union violated his freedom of speech, wrongly disallowed recording of the disciplinary hearing, had a biased union member serve on the board that adjudicated the dispute against Knight, and failed to give proper notice to union members about the Labor-Management Relations Act ("the Act"). After several years of litigation, the district court ordered the Union to amend its constitution and further ordered it to provide Knight with a new hearing before an impartial tribunal and to allow Knight to record the hearing. In the second hearing, the impartial tribunal sided with the Union. Knight appealed the judgment to the District Court and sought compensatory and punitive damages, along with attorney's fees and costs. The District Court did not award damages even though it ruled for Knight, but it did grant his request for attorney's fees. The Third Circuit then overturned the District Court's decision regarding liability and decided Knight was not entitled to any damages, but did not reach the issue of Knight's entitlement to fees. After remand, the District Court awarded Knight attorney's fees, costs, and post-judgment interest. The Union appealed the grant of fees and costs under the theory that Knight was no longer a prevailing party under the Act.

The Third Circuit first determined the District Court had jurisdiction to enter an award for fees and costs as the prior remands from the Third Circuit had not addressed the issues. As to Knight's status, the Court explained that a party need not receive monetary damages to be a prevailing party as an award of performance or injunction (here the Union was ordered to modify its procedures) was sufficient for a party to be able to have a common benefit for all union members. Further, the Third Circuit determined attorney's fees could be granted as an interim award, although the Court concluded that the judgment at issue was a final judgment. Lastly, the Third Circuit determined Knight's lawsuit conferred a common benefit to all union members as it led to changes in procedures that were significant. Finally, the Court explained that Knight's motive for bringing the lawsuit did not affect whether the benefit was given to the whole union membership.

To read the full opinion, please visit
http://www2.ca3.uscourts.gov/opinarch/134260p.pdf

Panel (if known): Fuentes, Greenaway, Jr., and Nygaard, Circuit Judges

Argument Date: June 23, 2014

Argument Location: Philadelphia, PA

Date of Issued Opinion: February 19, 2015

Docket Number: No. 13-4260

Decided: Affirmed

Case Alert Author: Ilya Gomelsky

Counsel: Stephen B. Potter, Esq. and John P. Sheridan, Esq. for Appellant; Michael J. Goldberg, Esq. and Perry F. Goldlust, Esq. for Appellees

Author of Opinion: Nygaard, Circuit Judge

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 02/24/2015 10:44 AM     3rd Circuit     Comments (0)  

  Phillip Lee Fantone v. Fred Lantini, Joe Burger, and Ron Mackey - Third Circuit
Headline: Third Circuit Holds No Due Process Claim in Pennsylvania for the Combination of Revocation of Parole and Harsh Conditions of Confinement

Area of Law: Due Process, Conditions of Confinement, Retaliation

Issues Presented: Whether a state has interfered unlawfully with an inmate's protected liberty interests with respect to the conditions of his confinement and the possibility of his parole and whether a state officer may have unlawfully retaliated against the inmate for exercising his constitutional rights.

Brief Summary: The Third Circuit held that the inmate did not have a liberty interest in the pre-execution grant of parole. Thus, he could not make a due process claim for the revocation of his parole before it was given to him. However, the Third Circuit reversed and remanded the case on the inmate's retaliation claim. The Court found that the inmate sufficiently alleged that he engaged in protected activities which caused the guards to retaliate against him by placing him in solitary confinement.

Extended Summary: Fantone was incarcerated at a State Correctional Institution (SCI). Two years into his sentence, the Parole Board exercised its discretion to grant him parole. Before his parole hearing, prison officials charged Fantone with several prison violations. Fantone asserted that he was threatened by a guard after these incidents which caused him to file a grievance against the guard. After these charges, Fantone appeared before an examiner for a hearing on the charges and was found guilty. The examiner sanctioned Fantone to 35 days in a Restrictive Housing Unit (RHU), which was time that he had already served. As a condition of release from the RHU, the guards required Fantone to write a statement revoking his grievance. Under duress from the guards, Fantone wrote the statement.

A few days after being released into the general population, prison officers transferred Fantone back into the RHU while they were investigating another charge against him. He remained in the RHU for approximately a month. On administrative appeal, Fantone obtained dismissals of both misconduct charges due to a lack of reliable evidence. Fantone avers that these disciplinary actions caused the Parole Board to rescind his parole. Regardless of the fact that he obtained dismissals of both charges, the Parole Board did not reinstate his parole. In fact, Fantone remained in the RHU for about 7 months until he was transferred to another SCI.
Fantone argued that his due process rights were violated because of the combination of his long stays in the RHU and his revocation of parole. Second, he argued that the defendants conspired to deprive him of his due process rights. Fantone's third and final argument was that the prison officials retaliated against him by placing him in the RHU for several months because Fantone would not confess to the charges and because he filed a grievance against one of the guards.
The Third Circuit first considered the legal principle that a liberty interest may only arise from the Due Process Clause itself or from the laws of the states. There are special rules that govern inmates' liberty interests because lawful incarceration brings with it necessary withdrawals from liberty. An inmate's liberty interests are generally limited only to those restrictions that are atypical and a significant hardship on the inmate in relation to the ordinary incidents of prison life. Where state law provides parole authorities with complete discretion to rescind a grant of parole prior to an inmate's release, as Pennsylvania law does, the inmate does not have a constitutionally protected liberty interest in being paroled before his actual release. The Third Circuit found that even with Fantone's combination argument, the circumstances did not rise to a level atypical to normal prison occurrences or a significant hardship. Thus, the Third Circuit held that Fantone did not have a liberty interest in the grant of parole prior to the completion of his sentence. Similarly, without a finding of a due process violation, Fantone could not succeed on his conspiracy claim.

Unlike his due process claims, the Third Circuit found that Fantone had alleged facts for a claim of retaliation sufficient to overcome a motion to dismiss. Reversing the District Court, the Third Circuit found that Fantone met the three factors for pleading a claim of retaliation. First, Fantone engaged in constitutionally protected activity when he filed a grievance and when he refused to make a statement asserting his guilt of the misconduct charges. Second, Fantone suffered at the hands of a state actor, the prison officials, and had adverse actions against him sufficient to deter a person from exercising his constitutional rights, placing him in the RHU. Third, the protected activity was a substantial or motivating factor in the state actor's decision to take adverse action. The Third Circuit found that Fantone sufficiently pled that the prison officials were motivated to place him in the RHU because of Fantone's exercise of his rights.

Thus, the Third Circuit affirmed the District Court's dismissal of the actions based on Due Process but reversed the dismissal of Fantone's retaliation claims and remanded for further proceedings.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133611p.pdf

Panel (if known): Vanaskie, Greenberg, and Cowen, Circuit Judges

Argument Date: December 9, 2014

Date of Issued Opinion: February 18, 2015

Docket Number: No. 13-3611

Decided: Affirmed in Part, Reversed in Part

Case Alert Author: Antoinette Snodgrass

Counsel: Tarah E. Ackerman, Thomas S. Jones, and Peter D. Laun, Counsel for Appellant; Kathleen G. Kane, John G. Knorr, III, Kemal A. Mericli, and Robert A. Willig, Counsel for Appellee

Author of Opinion: Judge Greenberg

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 02/24/2015 10:40 AM     3rd Circuit     Comments (0)  

February 18, 2015
  EEOC v. Allstate Insurance Co. - Third Circuit
Headline: Third Circuit Holds Waiver of Legal Claims As Condition for Continued Employment Not Illegal Retaliation

Area of Law: Employment Discrimination

Issues Presented:

Does requiring employees to sign a blanket waiver of legal claims for continued employment violate employment discrimination anti-retaliation statutes.

Brief Summary:

Allstate Insurance Company fired at-will employees and conditioned their return as independent contractors on waiving existing legal claims against Allstate. The Equal Employment Opportunity Commission sued Allstate alleging the company had illegally retaliated against employees by only allowed them to continue their employment if they waived all discrimination claims. The Third Circuit affirmed the District Court, holding that (1) continued employment can validly be exchanged for a waiver of anti-discrimination claims; (2) refusing to sign the waiver was not a protected activity; and that (3) the actions of Allstate did not comprise an adverse employment action.

Extended Summary:

Allstate Insurance Company fired at-will employees as part of a restructuring program with the goal of converting over to a sales program based on independent contracting. Employees were given four options: (1) conversion to independent contractor; (2) $5000 and an economic interest in their accounts; (3) one-year's severance; or (4) 13-week severance. Each option required the individual at-will employee to waive all legal claims, but not future claims, against Allstate Insurance Company.
The Equal Employment Opportunity Commission brought a lawsuit alleging illegal retaliation against the at-will employees by requiring waiver of discrimination claims as a term of future employment. The District Court rejected all theories of retaliation presented by EEOC and granted summary judgment for Allstate.
The Third Circuit first noted that waiver of claims under anti-discrimination statutes is valid generally and held that continued employment was sufficient consideration. The Third Circuit noted the enhanced benefits of the conversion option compared to new independent contractors and the at-will employee's lack of rights to continued employment or severance.
The Third Circuit held that Allstate did not retaliate against the at-will employees because refusing to sign the release was not a protected activity. The Third Circuit reasoned that the waiver was for all legal claims and so refusal to sign it could be for reasons unrelated to discrimination. The Third Circuit then held that there was no adverse employment action because the at-will employees were not entitled to any benefits denied if they refused to sign the waiver.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/142700p.pdf

Panel: Hardiman, Scirica, Barry, Circuit Judges

Argument Date: January 14, 2015

Date of Issued Opinion: February 13, 2015

Docket Number: No. 14-2700

Decided: Affirmed

Case Alert Author: Philip Jones

Counsel:

Paul D. Ramshaw (argued), C. Felix Miller, Iris A. Santiago-Flores, John V. Gorman, Coleen M. Meehan for Plaintiff-Appellant

Donald R. Livingston (argued), Katherine M. Katchen, Richard C. Godfrey, Jordan M. Heinz, Sallie G. Smylie, Erica Zolner for Defendant-Appellee

Rae T. Vann amicus for Defendant-Appellee

Author of Opinion: Hardiman

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 02/18/2015 11:01 AM     3rd Circuit     Comments (0)  

  Geneva College v. Secretary Department of Health - Third Circuit
Headline: ACA accommodation for contraceptive services does not substantially burden under RFRA

Area of Law: Issues Presented: Affordable Care Act and Religious Freedom Restoration Act- First Amendment

Brief Summary: The case centers on three district court cases ruling on the preventive services requirements of the Patient Protection and Affordable Care Act (ACA) and the Religious Freedom Restoration Act (RFRA). The appellees object to the ACA's requirement that contraceptives coverage must be provided to their plan participants and beneficiaries. There is an accommodation for the contraceptive coverage requirement that the nonprofit appellees are eligible for which allows them to advise that they will not pay for the contraceptive services. The services are then provided by a third-party administrator or an insurance issuer. The appellees contend that this accommodation forces them to "facilitate" or "trigger" the provision of insurance coverage for contraceptive services which they are opposed to on religious grounds. The Court disagrees with the District Courts that the accommodation places a substantial burden on the appellees and thus it reverses.

Significance (if any): The accommodation, provided for in the ACA, for health group plan established or maintained by nonprofit organizations that hold themselves out as a religious organization and opposes providing coverage for some or all of any contraceptives services to be covered on account of religious objections does not place a substantial burden on the organizations and thus does not violate RFRA.

Extended Summary: The Patient Protection Affordable Care Act (ACA) requires that group health plans and health insurance issuers offering health insurance coverage to cover for women, among other things, all contraceptive methods approved by the Food and Drug Administration. The ACA allows an exemption from the contraceptive coverage for the group health plan of a "religious employer" as defined by the IRS Code. The ACA also provides an accommodation for organizations that are not "religious employers" but oppose coverage based on religious objections. All of the appellees are nonprofit organizations that hold themselves out as religious organizations and oppose providing coverage for some or all of the contraceptives to be covered due to religious objections. The accommodation requires that the organization complete a self-certification form indicating that it has a religious objection to providing the coverage for the contraceptive services. The health insurance issuer or a third-party administrator is then required by the ACA to provide the contraceptive services without cost to the organization or to the plan participants or beneficiaries. The information on contraceptives is then provided to the plan participant or beneficiary separate from the information given out about the group health plans and the information specifies that the organization does not administer or fund the contraceptive services as well as providing a separate contact number for questions and complaints.
The Court determined that it was not the act of filing out the form and submitting it that the appellees found burdensome. Instead, their claim was that by providing the form to the insurance issuer or third party administrator it "triggers" the provision of contraceptive coverage thus requiring the organizations to be complicit in sin. The Court rejected the argument that the form itself gives rise to contraceptive coverage, noting that it is federal law that requires third parties to provide coverage after the organizations refuse to do so. The Court held, as did the Sixth Circuit, Seventh Circuit, and the Court of Appeals for the D.C. Circuit, that the submission of the form does not facilitate the contraceptive coverage by third parties but rather that the third parties providing coverage do so as a result of a legal obligation. The submitting of the form only relieves the organization of any obligation to provide the contraceptives and from any penalties that would otherwise have been levied.
The Court also rejected the argument that there was a causal connection between signing and submitting the form and coverage by third-party administrators. The form does not authorize the third-party administrators to serve as the plan administrator. It is the government that treats and designates the third-party administrator as the plan administrator. The form only communicates the organization's decision to opt out; it does not authorize anyone to do anything on the organization's behalf. The Court also rejected the argument that the submission of the self-certification form made the appellees complicit in the provision of contraceptive coverage. On the form, the organizations specifically state that they object on religious grounds to providing contraceptive coverage. What happens after the form is submitted does not demonstrate a substantial burden on the organizations.
The Court held that because the self-certification procedure did not cause or trigger the provision of contraceptive coverage, the organizations are unable to show that their religious exercise is burdened. The Court noted that even if the procedure was burdensome, it would not be substantially so because there is no governmental pressure nor is the organization forced to choose between following its religious beliefs or forfeiting benefits otherwise generally available. The Court also rejected the argument that contraceptive coverage process was a substantial burden because it split the Catholic Church by making the Dioceses eligible for the exemption while Catholic nonprofits only qualify for the accommodation.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133536p.pdf

Panel (if known): Rendell, Sloviter, Circuit Judges, and McKee, Chief Judge

Argument Date: November 19, 2014

Argument Location:

Date of Issued Opinion: February 11, 2015

Docket Number: No. 13-3536, 14-1374, 14-1376, 14-1377

Decided: Reversed

Case Alert Author: Cheri Snook

Counsel: Stuart F. Delery, Esq., David J. Hickton, Esq., Beth S. Brinkmann, Esq., Mark B. Stern, Esq., Michael A. Comber, Esq., Bradley P. Humphreys, Esq., Adam C. Jed, Esq., Alisa B. Klein, Esq., Patrick Nemeroff, Esq., Eric R. Womack, Esq., for appellants Secretary United States Department of Health and Human Services; Secretary United States Department of Labor; Secretary United States Department of Treasury; United States Department of Health and Human Services; United States Department of Labor; United States Department of the Treasury; Steven H. Aden, Esq., Gregory S. Baylor, Esq., Matthew S. Bowman, Esq., Erik W. Stanley, Esq., Kevin H. Theriot, Esq., David A. Cortman, Esq., David J. Mongillo, Esq., for appellees Geneva College; Seneca Hardwood Lumber Company, Inc.; Carrie E. Kolesar; Wayne Hepler; Paul M. Pohl, Esq., John D. Goetz, Esq., Leon F. DeJulius, Jr., Esq., Ira M. Karoll, Esq., Alison M. Kilmartin, Esq., Mary Pat Stahler, Esq., for appellees Most Reverand Lawrence T. Persico, Bishop of The Roman Catholic Dioceses of Erie, as Trustee of the Roman Catholic Diocese Of Erie, a Charitable Trust; The Roman Catholic Dioceses of Erie; ST. Martin Center, Inc., an affiliate Nonprofit Corporation of Catholic Charities of the Diocese of Erie; Prince of Peace Center, Inc., an Affiliate Nonprofit Corporation Of Catholic Preparatory School, an Affiliate Nonprofit Corporation Of The Roman Catholic Diocese of Erie; Most Reverand David A. Zubik, Bishop of Roman Catholic Diocese of Pittsburgh, as Trustee of the Roman Catholic Diocese of Pittsburgh, a Charitable Trust, Roman Catholic Diocese of Pittsburgh, Catholic Charities Dioceses of Pittsburgh; Deborah J. Dewart, Esq., for Amicus Liberty, Life and Law Foundation; Witold J. Walczak, Esq., Sara J. Rose, Esq., Brigitte Amiri, Esq., Jennifer Lee, Esq., Daniel Mach, Esq., for Amicus Julian Bond, The American Civil Liberties Union and the American Civil Liberties Union of Pennsylvania; Charles E. Davidow, Esq., Andree J, Goldsmith, Esq., Karin Dryhurst, Esq., Marcia D. Greenberger, Esq., Judith G. Waxman, Esq., Emily J. Martin, Esq., Gretchen Borchelt, Esq., Leila Abolfazli, Esq., for Amicus National Women's Law Center and Twenty Other National, State and Local Organizations; Ayesha N. Khan, Esq., for Amicus American United for Separation of Church and State; Sarah Somers, Esq., Martha Jane Perkins, Esq., Dipti Singh, Esq., Counsel for National Health Law Program, American Public Health Association, National Family Planning & Reproductive Health Association, National Women's Health Network, National Latina Institute For Reproductive Health, National Asian Pacific American Women's Forum, Asian Americans Advancing Justice, Los Angeles, Asian & Pacific Islander American Health Forum, National Hispanic Medical Association, Forward Together, IPAS, Sexuality Information and Education Council of the U.S. (Siecus), HIV Law Projuct, and California Women's Law Center as Amici Curiae; Kimberlee Wood Colby, Esq., The Association of Gospel Rescue Missions, Prison Fellowship Ministries, Association of Christian Schools International, National Association of Evangelicals, Ethics & Religious Liberty Commissions of the Southern Baptist Convention, American Bible Society, The Lutheran Church-Missouri Synod, Institutional Religious Freedom Alliance, and Christian Legal Society in Support of Appellees and Urging Affirmance

Author of Opinion: Chief Justice Rendell

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 02/18/2015 10:59 AM     3rd Circuit     Comments (0)  

February 17, 2015
  Conlon v. InterVarsity Christian Fellowship/USA -- Sixth Circuit
Headline: Sixth Circuit applies First Amendment's ministerial exception in upholding religious organization's firing of employee contemplating divorce

Areas of Law: Employment Law; U.S. Constitution.

Issue Presented: Did the First Amendment's ministerial exception bar state and federal employment-law claims against a religious organization and its individual supervisors?

Brief Summary: A religious organization fired the plaintiff after she disclosed that she and her husband were contemplating a divorce. After her firing, the plaintiff sued the organization and her former supervisors in the United States District Court for the Western District of Michigan, alleging illegal gender discrimination under state and federal civil-rights laws. The defendants moved to dismiss, asserting the First Amendment's ministerial exception. The district court granted the motion, and the Sixth Circuit affirmed, finding that the defendants were entitled to the ministerial exception.

Extended Summary: From 2004 to 2011, the plaintiff worked as a "spiritual director" for InterVarsity Christian Fellowship. In March 2011, the plaintiff told her supervisor that she and her spouse were considering a divorce. This notification was required under InterVarsity's employment policy. InterVarsity placed the plaintiff on leave to repair her marriage but eventually fired her on December 20, 2011. The plaintiff sued InterVarsity and her former supervisors, alleging that her firing was based on gender discrimination and violated Michigan's civil-rights laws and Title VII of the Civil Rights Act of 1964. The defendants moved to dismiss, asserting the First Amendment's ministerial exception. The district court granted the motion.

The Sixth Circuit affirmed. It relied on its decision in Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th Cir. 2007), where it held that for the ministerial exception to bar an employment-discrimination claim, "the employer must be a religious institution and the employee must have been a ministerial employee." The court determined that InterVarsity was a religious group because its purpose was to "advance the understanding and practice of Christianity." The Sixth Circuit also relied on the Supreme Court's decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012), which identified four factors that can establish an employee's "minister" status: "[1] the formal title given by the church, [2] the substance reflected in that title, [3] her own use of that title, and [4] the important religious functions she performed for the church." The Sixth Circuit found that factors one and four existed in the present case and that the ministerial exception "clearly" applied.

In rejecting the plaintiff's argument that the defendants waived the ministerial exception, the Sixth Circuit held that the "ministerial exception is a structural limitation imposed on the government by the Religion Clauses," a limitation that prohibits state and federal governments from interfering with religious leadership matters. Thus, it can never be waived. The Sixth Circuit also noted that even if the ministerial exception was not recognized under Michigan law, because the First Amendment's Religion Clauses apply to states through the Fourteenth Amendment, a violation of the First Amendment by any Michigan statute, as applied, will be defeated by this federal right.

Finally, the Sixth Circuit held that individual supervisors could not be held liable under Michigan law because "holding the individual decision maker liable for the very employment decision for which the organization cannot be held liable would vitiate both the purpose and the effect of the ministerial exception."

For all these reasons, the Sixth Circuit held that the ministerial exception barred both state and federal employment-law claims against all the defendants and affirmed the district court's ruling.

Concurrence: Judge Rogers wrote a concurrence suggesting that InterVarsity could "no more 'agree' to have Title VII extend to claims by the ministerial exception than an employer can 'agree' to have Title VII apply to a new kind of discrimination." He believed that this inability to expand the scope of statutory causes was enough to reject the plaintiff's waiver argument. Judge Rogers also noted that the decision in the present case did not require the Sixth Circuit to decide whether a religious employer could enter into a "judicially-enforceable employment contract with a ministerial employee not to fire that employee on certain grounds (such as pregnancy)." His belief was that enforcing such an employment contract may interfere with a religious organization's independence from employment laws. Yet if the courts decline to enforce these contracts, religious organizations may not be able to hire the candidates they desire.

Panel: Batchfelder and Rogers, Circuit Judges; Beckwith, District Judge

Date of Issued Opinion: February 5, 2015

Docket Number: 14-1549

Counsel: ARGUED: Katherine Smith Kennedy, PINSKY, SMITH, FAYETTE & Kennedy, LLP, Grand Rapids, Michigan for Appellant. Michelle K. Terry, AMERICAN CENTER FOR LAW & JUSTICE, Franklin, Tennessee, for Appellees. ON BRIEF: Katherine Smith Kennedy, PINSKY, SMITH, FAYETTE & Kennedy, LLP, Grand Rapids, Michigan for Appellant. Michelle K. Terry, David A. French, Abigail A. Southerland, AMERICAN CENTER FOR LAW & JUSTICE, Franklin, Tennessee, Edward L. White III, AMERICAN CENTER FOR LAW & JUSTICE , Ann Arbor, Michigan, for Appellees. David A. Cortman, Kevin H. Theriot, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia, David J. Hacker, ALLIANCE DEFENDING FREEDOM, Folsom, California, Kimberlee Wood Colby, CENTER FOR LAW & RELIGIOUS FREEDOM OF THE CHRISTIAN LEGAL SOCIETY, Springfield, Virginia, for Amici Curiae.

Link to full opinion: http://www.ca6.uscourts.gov/op...s.pdf/15a0021p-06.pdf

Case Alert Author: Daron J. Berman

Case Alert Circuit Supervisor: Professor Mark Cooney

Edited: 02/17/2015 at 12:18 PM by Mark Cooney

    Posted By: Mark Cooney @ 02/17/2015 11:42 AM     6th Circuit     Comments (0)  

  Dennis v. Secretary, PA Dep't of Corrections - Third Circuit
Headline: Third Circuit vacates conditional writ of habeas corpus for defendant in 22 year old murder case, calling the Pennsylvania Supreme Court "reasonable."

Area(s) of Law: Habeas Corpus, Brady violation

Issue(s) Presented:
Did the prosecution, in its case against James Dennis, suppress three key pieces of evidence in violation of Brady v. Maryland?

Brief Summary: James Dennis was convicted of the murder of Chedell Williams and sentenced to death. Over the course of several appeals and Post-Conviction Relief Act claims, he alleged that the prosecution suppressed three key pieces of exculpatory evidence in violation of Brady v. Maryland. The PA Supreme Court disagreed and affirmed his conviction. The District Court found that the prosecution had violated Brady and that the PA Supreme Court had based its decisions on unreasonable applications of federal law and unreasonable determinations of fact, granting a conditional writ of habeas corpus. The Third Circuit vacated this decision agreeing with the PA Supreme Court that: 1) requiring admissibility is not an unreasonable application of Brady and it progeny; 2) that Brady does not require the prosecution to turn over evidence that is also available to the defense with reasonable diligence; and 3) that certain possible impeachment evidence provided no reasonable probability of a different result because "impeachment evidence, if cumulative of similar impeachment evidence used at trial . . . is superfluous and therefore has little, if any, probative value." Accordingly, the Third Circuit vacated the District Court's order granting Dennis a conditional writ of habeas corpus and remanded the case for consideration of Dennis's remaining claims in a manner consistent with this opinion.

Extended Summary: On October 22, 1991 Chedell Williams and her friend, Zahra Howard, were approached by two men at a subway station in Philadelphia. One of the men shot Williams in the neck with a silver handgun. In late 1992, James Dennis was convicted of first-degree murder, robbery, conspiracy, carrying a weapon without a license, and possessing the instruments of a crime, and was sentenced to death. In a series of decisions over thirteen years, the PA Supreme Court affirmed Dennis's conviction and sentence and denied his petition for post-conviction relief. Dennis then filed for a writ of habeas corpus. The petition turned on three pieces of evidence from the initial investigation which Dennis contends were withheld from him in violation of Brady v. Maryland and its progeny.

Dennis alleged that on the day of the murder, he took a bus for approximately 30 minutes to the intersection of Henry and Midvale Avenues. There he saw a woman he knew named Latanya Cason between 2:00 and 2:30, and "[w]hen we got off the bus I waved to her." He then walked about a half of a mile to Abbottsford Homes, a public housing complex, and spent the rest of the day with his friends there. When officers interviewed Cason, she said that she had seen Dennis that day, but at a different time. She said that she got off work at 2:00 p.m., collected her public-assistance funds, and ran a few errands before taking the bus to the Henry and Midvale Avenues intersection. Therefore, she estimated that she saw Dennis that day between 4:00 and 4:30 p.m.

Dennis's appellate counsel later went to the regional Department of Public Welfare and found the receipt from when Cason picked up her public-assistance funds which showed that she had picked them up at 13:03 (1:03 p.m.), rather than after 2:00 p.m. as she initially remembered. Cason informed him that officers had already had a copy of that receipt when they interviewed her the first time during the initial investigation, that she had reviewed it then, and had likely been confused because it listed the military time.

Officers also interviewed Chedell Williams's aunt, Diane Pugh. Pugh told them that Howard recognized the suspects from the high school she and Williams attended. Dennis did not attend the same school as Howard and Williams, and the report indicates that the officers intended to follow up with Howard about this comment, but they never did.

Finally, an inmate at Montgomery County, William Frazier, provided a tip about Williams's murder, saying that his friend Tony Brown, who had a history of armed robbery, admitted to him to killing Williams, and had implicated two other men, Ricky Walker and Skeet. Frazier then went on a ride-along with the officers and identified a pawn shop where he believed Brown, Walker, and Skeet would have sold the earrings stolen from Williams; Brown's home; Brown's girlfriend's home; Walker's home; and Skeet's home. Upon interview, Walker admitted that he knew Williams from high school, but denied having anything to do with her murder, denied knowing Brown or Skeet, and said that his mother could confirm that he was sleeping at the time of William's murder. The police went to what they thought was the address Frazier gave them for Skeet and found no one who knew of him; however, they went to the wrong address. They never confirmed Walker's alibi, investigated the pawn shop Frazier identified, located Tony Brown, or contacted Frazier's aunt, who had set up Frazier's call with Brown.

Over the course of his appeals and Post-Conviction Relief Act claims, Dennis argued that he had received ineffective assistance of counsel, and that the prosecution had violated Brady by not turning over the public-assistance receipt, the police report of Diane Pugh's interview, or any of the reports and other documents relating to Frazier's tip at trial.

The PA Supreme Court first concluded that Dennis could not succeed on his ineffective assistance of counsel claim because "[Cason's] testimony would not support [Dennis's] alibi, because the murder occurred . . . forty minutes earlier than Cason's earliest estimate" and because her testimony "would have been cumulative" of other testimony that Dennis arrived at Abbottsford Homes between 2:15 and 2:30 p.m. The court also rejected the Brady claim, holding that the receipt was not exculpatory and there was no evidence that the Commonwealth withheld the receipt from the defense.

The PA Supreme Court found no Brady violation with respect to the Frazier lead documents, because they were inadmissible and not material because "Howard was extensively cross-examined . . . includ[ing] Howard's identification of the shooter" and because "there were two eyewitnesses other than Howard who observed the shooting at close range . . . [and who] positively identified [Dennis] as the shooter in a photo array, in a line up, and at trial." Therefore, the court found that a different result was not reasonably probable.

Dennis then filed an application under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania that raised approximately twenty claims. The District Court held that the PA Supreme Court unreasonably applied Brady v. Maryland and its progeny in rejecting Dennis's claims that the prosecution had withheld the three pieces of exculpatory and material information. The District Court granted a conditional writ of habeas corpus and directed the Commonwealth to retry Dennis or release him. The Commonwealth filed a timely notice of appeal.
The Third Circuit first noted that under the Antiterrorism and Effective Death Penalty Act, federal courts reviewing a state prisoner's application for a writ of habeas corpus may not grant relief "with respect to any claim that was adjudicated on the merits in State court proceedings" unless the claim 1) "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" or 2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A decision is "contrary to" federal law if "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." A decision is an "unreasonable application" of federal law if the state court identified the correct governing legal rule but applied the rule to the facts of the case in an objectively unreasonable manner. A decision is based on an "unreasonable determination of the facts" if the state court's factual findings are objectively unreasonable in light of the evidence presented to the state court.
The Third Circuit then noted that it would follow the same course for reviewing each of Dennis's claims: ) determine what arguments or theories supported or could have supported the state court's decision; 2) ask "whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court"; and 3) ask whether the state court's decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."

With regard to the Frazier lead documents, the Third Circuit agreed with the PA Supreme Court that the admissibility requirement is not an unreasonable application of Supreme Court precedent because in Wood v. Bartholomew, the US Supreme Court noted that Brady governs the disclosure of "evidence." Thus, the PA Supreme Court could reasonably read that precedent as holding that because the withheld document was not admissible under state law, it was not "evidence" that triggered Brady, and "a state court's interpretation of state law [on admissibility] ...binds a federal court sitting in habeas corpus."

The Third Circuit agreed with the PA Supreme Court that the prosecution did not "withhold" Cason's welfare funds receipt, and thus did not violate Brady. The Court deemed that it had to give the state court decision about whether the police had the receipt the "benefit of the doubt." Further, because Brady prohibits the "suppression" of exculpatory evidence, it does not require the prosecution to turn over evidence that is also available to the defense with reasonable diligence. As to Dennis's ineffective assistance of counsel claim on this matter, the Third Circuit declined to address it at this time as that was one of the claims on which the District Court reserved judgment.

Finally, the Third Circuit agreed with the PA Supreme Court that, though the Pugh interview could have been used to impeach Zahra Howard's identification of Dennis, no reasonable probability of a different result existed because Dennis cross-examined Howard about her identification of the shooter and two other eyewitnesses identified Dennis as the shooter. While it is true that state courts act unreasonably when holding that merely because a witness "is impeached in one manner, any other impeachment becomes immaterial," the US Supreme Court has also recognized that "impeachment evidence, if cumulative of similar impeachment evidence used at trial . . . is superfluous and therefore has little, if any, probative value." Further, the PA Supreme Court acted reasonably when it relied on US Supreme Court precedent which "observed that evidence impeaching an eyewitness may not be material if the State's other evidence is strong enough to sustain confidence in the verdict."

Finally, the Third Circuit denied the Commonwealth's request to remand the case to a different District Court judge, stating that Judge Anita B. Brody is "an experienced, learned, and fair jurist [who] will be able to apply the proper legal standards to the remaining claims."

Accordingly, the Third Circuit vacated the District Court's order granting Dennis a conditional writ of habeas corpus and remanded the case for consideration of Dennis's remaining claims in a manner consistent with this opinion.
To read the full opinion, please visit: http://www2.ca3.uscourts.gov/opinarch/139003p.pdf

Panel (if known): Smith, Fisher, and Chagares

Argument Date: November 5, 2014

Date of Issued Opinion: February 9, 2015

Docket Number: 13-9003

Decided: The District Court's order granting Dennis a conditional writ of habeas corpus was vacated and the case remanded for consideration of Dennis's remaining claims in a manner consistent with this opinion.

Case Alert Author: Aaron Spencer

Counsel: Counsel for the Appellant: Thomas W. Dolgenos (Argued) and Ryan Dunlavey; Counsel for the Appellee: Stuart B. Lev (Argued), James W. Cooper, Rebecca L.D. Gordon, Ryan D. Guilds, Meghan Martin, Amy L. Rohe, and Melanie Gavisk.

Author of Opinion: Judge Fisher

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 02/17/2015 10:59 AM     3rd Circuit     Comments (0)  

February 13, 2015
  Prasad v. Holder -- Fourth Circuit
Headline: Fourth Circuit Lying in Repose - Court Refuses to Equitably Toll Immigration Deadline

Area of Law: Immigration, Civil Procedure

Issue Presented: Whether § 1255(i) of the Immigration and Naturalization Act, which allows unlawful residents to adjust their status if, inter alia, they are the beneficiary of a labor-certification application filed on or before April 30, 2001, is a statute of limitations or a statute of repose.

Brief Summary: Petitioner Prasad is an unlawful Indian immigrant. 8 U.S.C. § 1255(i) permits the readjustment of status for certain eligible unlawful immigrants. To qualify for this readjustment, one of the statutory requirements is that the petitioner must show that his employer filed a labor-certification application on his behalf by April 30, 2001. Prasad's employer, through its attorney Earl Davis, filed a labor-certification application for Prasad two months late. Mr. Davis was later permanently disbarred and convicted for immigration fraud. In 2007, with different counsel, Mr. Prasad formally filed for readjustment of his status. His petition was denied because his labor-certification application was filed late, and therefore Mr. Prasad could not qualify under the § 1255(i) exception. Removal proceedings against him began. Mr. Prasad renewed his application for readjustment at the removal proceeding. The immigration judge ("IJ") denied the application. Mr. Prasad filed a motion to reopen and reconsider, arguing that the statutory deadline should be equitably tolled due Mr. Davis' ineffective assistance. The IJ denied this motion, as did the Board of Immigration Appeals ("BIA"). The BIA stated that the deadline operates as a statute of repose rather than a statute of limitations, and therefore cannot be equitably tolled. Mr. Prasad appealed to the United States Court of Appeals for the Fourth Circuit. He argued that the BIA misinterpreted the nature of § 1255(i).

The Fourth Circuit found that § 1255(i) has all the hallmarks of a statute of repose and therefore is not subject to equitable tolling. A statute of repose is part of a statutory scheme that creates and frames a substantive right. To avoid interference with legislative intent, statutes of repose are not equitably tolled for any reason. On the other hand, a statute of limitations is merely a procedural defense that is not considered when determining whether a substantive right exists. The time limit a statute of limitations imposes varies from plaintiff to plaintiff based on when the claim accrued. In contrast, a statute of repose mandates the same deadline for everyone. Congress could have allowed certain petitioners to file their applications late, but specifically chose not to. Therefore, as § 8 U.S.C. 1255(i) is a statute of repose, it cannot be equitably tolled, and the Fourth Circuit denied Mr. Prasad's claim.

To read the full opinion please click here.

Panel: Judges Duncan, Agee, and Harris

Argument Date: 12/10/2014

Date of Issued Opinion: 01/12/2015

Docket Number: No. 14-1034

Decided: Denied in part and dismissed in part.

Case Alert Author: Roy Lyford-Pike, Univ. of Maryland Carey School of Law

Counsel: Mark A. Mancini, WASSERMAN, MANCINI & CHANG, Washington, D.C., for Petitioner. Walter Bocchini, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney General, LindaS. Wernery, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author: Judge Harris

Case Alert Circuit Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 02/13/2015 03:36 PM     4th Circuit     Comments (0)  

  United States ex rel. Badr v. Triple Canopy Inc. -- Fourth Circuit
Headline: Missing the Mark: The Fourth Circuit Embraces the False Claims Act Theory of Implied Certification

Area of Law: False Claims Act, Contract

Issue Presented: Whether a contractor knowingly and falsely implied that it was entitled to payment by submitting a claim, thus facing False Claims Act liability?

Brief Summary: In 2009, the U.S. government awarded a military contract, TO-11, to Triple Canopy to provide security services to Al Asad Airbase in Iraq. The contract specified that Triple Canopy was to ensure all personnel had achieved a qualifying score on the U.S. Army Marksmanship skills tests, though the contract did not condition payment on compliance with this responsibility. Triple Canopy hired 332 Ugandan guards to serve for the contract, most of whom were unable to score the required score on the marksmanship test. Accordingly, Triple Canopy asked one of their staff, Omar Badr, to falsify personnel records to indicate the guards received the required training and score. Although the invoice Triple Canopy submitted to the government for payment did not falsely represent the guards' capabilities, the government argued that the claim was a false misrepresentation because it implied compliance with a material obligation of the agreement that it knowingly did not comply with. The government alleged that Triple Canopy knowingly presented false claims in violation of 31 U.S.C. § 3729(a)(1)(A) (Count I); and that Triple Canopy caused the creation of false records material to a false claim in violation of 31 U.S.C. § 3729(a)(1)(B) (Count II). The district court dismissed both Counts I and II for failure to plead that Triple Canopy submitted a demand for payment that contained a false statement.

The United States Court of Appeals for the Fourth Circuit rejected the district court's reasoning holding that the government adequately pled a false claim where Triple Canopy withheld information about its noncompliance with material contract requirements when requesting payment from the government. In order to distinguish this case from routine contractual disputes where the FCA has been found inapplicable, the court focused its opinion on the materiality of the misrepresentation and the high degree of Triple Canopy's alleged knowledge. In discussing the materiality of the marksmanship clause, the court focused on the commonsensical notion that the government would not pay for guards in a combat zone who did not know how to use their weapons, as well as Triple Canopy's efforts to conceal the guards' failings. Although it acknowledged the potential risks of an implied certification theory, the court concluded that it could not support an application of the FCA that would allow the defendant to "avoid liability because nothing on the 'face' of the invoice was objectively false." In addition, the court found that Triple Canopy could not avoid FCA liability simply because a government employee failed to discover the false statement. The falsified marksmanship score cards were material to the invoices, supporting a falsified records claim under Count II.

To read the full opinion, please click here.

Panel: Judge SHEDD, AGEE, and WYNN.

Argument Date: 10/30/2014

Date of Issued Opinion: 01/08/2015

Docket Number: Case No. 13-2191

Decided: Affirmed in part; reversed in part; and remanded by published opinion.

Case Alert Author: Michele Hayes, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Charles W. Scarborough, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Earl N. Mayfield, III, DAY & JOHNS,
PLLC, Fairfax, Virginia, for Appellants. Tara Melissa Lee, DLA
PIPER LLP (US), Reston, Virginia, for Appellee. ON BRIEF:
Stuart F. Delery, Assistant Attorney General, Joyce Branda,
Acting Assistant Attorney General, Michael S. Raab, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Dana J. Boente, Acting United States Attorney, Richard W.
Sponseller, Assistant United States Attorney, Peter S. Hyun,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellant United States of
America. Paul A. Prados, Milt C. Johns, Christopher M. Day, DAY
& JOHNS, PLLC, Fairfax, Virginia, for Appellant Omar Badr.
Joseph C. Davis, Reston, Virginia, Paul D. Schmitt, DLA PIPER
LLP (US), Washington, D.C., for Appellee.

Author of Opinion: Judge Shedd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/13/2015 03:24 PM     4th Circuit     Comments (0)  

February 11, 2015
  Monique Sykes, et al. v. Mel S. Harris & Associates, LLC, et al. - Second Circuit
Headline: Second Circuit Affirms Class Certification in Debt Collection "Default Judgment Mill" Action

Area of Law: Civil Procedure, Class Action, Fair Debt Collection Practice Act, RICO

Issue(s) Presented: Whether two classes were properly certified in an action brought by thousands of debtors against corporation affiliates that purchased consumer debt, service process company, and law firm specializing in debt collection litigation, for abusive debt collection practices in violation of federal and state law.

Brief Summary: Plaintiffs are New York City residents who were sued by defendants in debt collection actions in New York City Civil Court between 2006 and 2010. Defendants include affiliates of Leucadia National Corporation, a large purchaser of consumer debt, Mel S. Harris & Associates (Mel Harris), a law firm that initiated debt collection litigation as counsel for Leucadia, and a process service company. Plaintiffs initiated an action in the United States District Court for the Southern District of New York for damages and injunctive relief on behalf of themselves and others, alleging that defendants effectively operated a massive illegal debt collection "default judgment mill" in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Fair Debt Collection Practices Act (FDCPA), New York General Business Law (GBL) § 349, and New York Judiciary Law § 487.

The district court certified two classes under FRCP 23, one comprising all those who had or would be sued by Mel Harris as counsel for Leucadia, and one comprising all those sued by Mel Harris as counsel for Leucadia who had a default judgment entered against them. Defendants appealed the class certification orders. In this consolidated appeal, a divided Second Circuit affirm, holding the district court did not abuse its discretion in certifying the two classes.

The full text of the opinion may be found at:
http://www.ca2.uscourts.gov/de...9b275/1/hilite/


Extended Summary: Plaintiffs are New York City residents who were sued by defendants in debt collection actions in New York City Civil Court between 2006 and 2010. Defendants include subsidiaries of Leucadia National Corporation, a large purchaser of consumer debt, Mel S. Harris & Associates (Mel Harris), a law firm that initiated debt collection litigation as counsel for Leucadia, and Samserv, Inc., a process service company. Plaintiffs sued on behalf of themselves and others in the United States District Court for the Southern District of New York alleging that defendants effectively operated an illegal debt collection "default judgment mill" in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Fair Debt Collection Practices Act (FDCPA), New York General Business Law (GBL) § 349, and New York Judiciary Law § 487.

According to plaintiffs, the defendants engaged in a scheme to purchase large amounts of consumer debt in order to initiate debt collection actions and collected millions of dollars by generating fraudulent defaults judgments. Plaintiffs alleged more specifically that, after purchasing large amounts of computer debt, defendants electronically generated thousands of complaints and summonses to initiate collection proceedings, engaged a process server for "sewer service" whereby plaintiffs were not actually served, but proof of service was filed with the court, and, ultimately, electronically generated motions for default judgment when plaintiffs failed to appeal. The evidence presented indicated that from 2006 to 2010, "'Leucadia entities filed 124,838 cases' and Mel Harris represented Leucadia in 99.63 percent of those cases." Plaintiffs sought damages and injunctive relief.

After the lower court denied defendants' motion to dismiss, plaintiffs moved for class certification under Federal Rule of Civil Procedure (FRCP) 23(a) and the district court ultimately certified two classes. One class, certified under FRCP 23(b)(2) comprises all those who have been or will be sued by Mel Harris as counsel for Leucadia in violation of RICO and state law and sought injunctive relief directing defendants to, in essence conform their debt collection practices to governing law and notify plaintiffs of their right to re-open cases in which a default had been entered against them. The second class, certified under FRCP 23(b)(3) comprises all those sued by Mel Harris as counsel for Leucadia who have had a default judgment entered against them and seeks damages under RICO, the FDCPA and New York state law.
Defendants appealed, arguing that the district court abused its discretion in certifying the two classes.

The Second Circuit majority disagrees with defendants, finding the district court did not abuse its discretion in certifying one class under 23(b)(2) and the second under 23(b)(3). The majority concludes that, as to the first class certified under 23(b)(s), plaintiffs' evidence satisfied the "commonality" requirement of FRCP 23(a) and that individual issues predominate over issues shared by the class, and met the requirement under 23(b)(2) that the injunctive relief would provide relief to each class.

The majority also finds that the district court did not abuse its discretion in finding that plaintiffs' satisfied the requirements for the second class certification under Rule 23(b)(3). The majority rejects the defendants' argument that individual issues related to damages, timeliness and service predominated over issues shared by the class, making certification inappropriate under Rule 23(a). The court concludes instead that the common issue of whether defendants' actions violated RICO, FDCPA and state law predominated. Referring to the 2013 United States Supreme Court decision in Comcast Corp. v. Behrend, relied on by defendants, the majority holds that Comcast "did not rewrite the standards governing individualized damage considerations: it is still clear that individualized monetary claims belong in Rule 23(b)(3)" where, as here, the damages stem from the same common liability.
The majority further finds no abuse of discretion in the district court's finding that the evidence supported a conclusion that a class action is "superior to other available methods for fairly and efficiently adjudicating" the issues. The Second Circuit explains that, few plaintiffs would have the incentive to proceed in state court, where they would have to bring their claims individually, because the amounts at stake for individual plaintiffs is relatively small, and many of them have limited means to pursue individual claims.

Judge Jacobs filed a dissent in which he maintains that "[t]his is class litigation for the sake of nothing but class litigation." He writes that the majority's superiority ruling is error because there is a statutory remedy available in state court, en masse vacatur, which is more efficient and speedy than a federal class action. He further argues that in finding common issues predominate over individual ones, the district court erred by failing to rigorously weighing the common and distinct issues. The dissent also agrees with defendants that the injunctive relief class was certified in error because, the named plaintiffs have already had their default judgments vacated.

The full text of the opinion may be found at:
http://www.ca2.uscourts.gov/de...dec05/1/hilite/


Panel: Circuit Judges Jacobs, Calabresi, and Pooler

Argument Date: 02/07/2014

Date of Issued Opinion: 02/10/2015

Docket Number: 132742cv

Decided: Affirmed

Case Alert Author: Joan O'Connor Archer

Counsel: PAUL D. CLEMENT, Bancroft PLLC, Washington, DC (Candice Chiu, Bancroft PLLC, Washington, DC; James R. Asperger and Maria Ginzburg, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY; Marc A. Becker, London, UK; Brett A. Scher, Kaufman Dolowich & Voluck LLP, Woodbury, NY, on the brief), for Defendants‐Appellants Mel S. Harris LLC, Mel S. Harris, Michael Young, David Waldman, Kerry Lutz, and Todd Fabacher.

MIGUEL A. ESTRADA, Gibson, Dunn & Crutcher LLP, Washington, DC (Scott P. Martin, Gibson, Dunn & Crutcher LLP, Washington, DC; Michael Zimmerman, Zimmerman Jones Booher LLC, Salt Lake City, UT; Lewis H. Goldfarb and Adam R. Schwartz, McElroy, Deutsch, Mulvaney & Carpetner LLP, Morristown, NJ; Mark D. Harris, Proskauer Rose LLP, New York, NY, on the brief), for Defendants‐Appellants Leucadia National Corporation, L‐Credit, LLC, LR Credit, LLC, LR Credit 10, LLC, LR Credit 14, LLC, LR Credit 18, LLC, LR Credit 21, LLC, Joseph A. Orlando, and Philip M. Cannella.

JACK BABCHIK, Babchik & Young LLP, White Plains, NY, for Defendants‐Appellants Samserv, Inc., William Mlotok, Benjamin Lamb, Michael Mosquera, and John Andino.

MATTHEW D. BRINCKERHOFF, Emery Celli Brinckerhoff & Abady LLP, New York, NY (Jonathan S. Abady, Debra L. Greenberger and Vasudha Talla, Emery Celli Brinckerhoff & Abady LLP, New York, NY; Josh Zinner, Susan Shin and Claudia Wilner, New Economy Project, New York, NY; Carolyn E. Coffey and Ariana Lindermayer, of counsel to Jeanette Zelhoff, MFY Legal Services, New York, NY; Charles J. Ogletree, Jr., Harvard Law School, Boston, MA, on the brief), for Plaintiffs‐Appellees.

JEAN CONSTANTINE‐DAVIS, AARP Foundation Litigation, Washington, DC, on behalf of Amici Curiae AARP, National Association of Consumer Advocates, and National Consumer Law Center, in support of Plaintiffs‐Appellees. DANIELLE F. TARANTOLO, New York Legal Assistance Group, New York, NY, on behalf of Amicus Curiae Consumer Advocates, in support of Plaintiffs‐Appellees. SARANG VIJAY DAMLE, Senior Counsel, Consumer Financial Protection Bureau, Washington, DC (Meredith Fuchs, General Counsel, To Queen Truong, Deputy General Counsel, David M. Gossett, Assistant General Counsel, Jessica Rank Divine, Attorney, Consumer Financial Protection Bureau, Washington, DC; Jonathan E. Nuechterlein, General Counsel, John F. Daly, Deputy General Counsel for Litigation, Theodore (Jack) Metzler, Attorney, Federal Trade Commission, Washington, DC, on the brief), on behalf of Amici Curiae The Consumer Financial Protection Bureau and Federal Trade Commission, in support of Plaintiffs‐Appellees.

Author of Opinion: Judge Pooler for majority; Judge Jacobs dissenting

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 02/11/2015 08:35 AM     2nd Circuit     Comments (0)  

February 9, 2015
  Davila v. Gladden
Headline: Eleventh Circuit holds the Religious Freedom Restoration Act (RFRA) does not authorize money damages against government officers in their official capacity and even if the act authorized liability in their individual capacity, the officers in this case would be entitled to qualified immunity.

Area of Law: Constitutional

Issue(s) Presented: Whether RFRA authorizes money damages against officers in either their official or individual capacities.

Brief Summary: Appellant, Anthony Davila ("Davila"), filed a pro se complaint against a number of prison officials in their official and individual capacities, seeking money damages and injunctive relief. Davila alleged the prison officials violated his rights under RFRA. The district court dismissed all Davila's claims for money damages, and granted summary judgment as to the remaining claims for injunctive relief. The Eleventh Circuit reversed the district court's grant of summary judgment on the injunctive relief claim and affirmed the remainder of the district court's rulings.

Extended Summary: Davila, a federal prisoner and Santeria priest, was denied multiple requests for his personal set of beads and shells, which he claimed were infused with the spiritual force "Ache." The prison officials justified their denial based on a prison policy that requires all religious items to be brought in through approved vendors. Davila claimed the denial by prison officials violated his rights under the First Amendment and RFRA. The district court dismissed Davila's claims for money damages under RFRA and the First Amendment, and granted summary judgment in favor of the prison officials on all other claims.

The Eleventh Circuit, in addressing two issues of first impression, determined that Davila could not recover money damages under RFRA from prison officials in either their official or individual capacities. The court reasoned that Congress did not unambiguously waive sovereign immunity to authorize suits for money damages against officers in their official capacity when enacting RFRA. The court declined to address whether RFRA authorizes money damages against government officials in their individual capacity because the officers in this case would be entitled to qualified immunity. The Eleventh Circuit affirmed the dismissal of Davila's remaining claims, including its denial of monetary damages under RFRA. However, the Eleventh Circuit reversed the district court's grant of summary judgment on Davila's RFRA claim for injunctive relief.

To view full opinion: http://media.ca11.uscourts.gov...b/files/201310739.pdf

Panel: Martin, Julie Carnes and Anderson, Circuit Judges

Argument: October 17, 2014

Date of Issued Opinion: January 9, 2015

Docket Number: 13-10739

Decided: Affirmed in Part, Reversed in Part and Remanded

Case Alert Author: Astrid Lopez, Maria Catala, David Schnobrick, Khristopher Salado

Counsel (if known): John Christopher Amabile for Appellant
Sanjay S. Karnik for Appellees


Author of Opinion: Martin, Circuit Judge

    Posted By: Gary Kravitz @ 02/09/2015 01:38 PM     11th Circuit     Comments (0)  

February 7, 2015
  United States v. Rentz-- Tenth Circuit
Case Name: United States v. Rentz -- Tenth Circuit

Headline: Tenth Circuit Rules Government Must Prove Multiple Instances of Use, Carry or Possession to Bring Separate Charges under 18 U.S.C. § 924(c)(1)(A)

Areas of Law: Criminal Law, Statutory Construction

Issue Presented:

Does 18 U.S.C. § 924(c)(1)(A) allow multiple charges to be brought against the defendant when it is agreed that there is only one single use, carry, or possession?

Brief Summary:

The Tenth Circuit held an en banc rehearing of the case to determine whether the government may bring multiple charges under 18 U.S.C. § 924(c)(1)(A), when a firearm is used only one time, but results in two crimes of violence. After engaging in a textual analysis of the statute and applying the rule of lenity, the majority held that the government would have to prove a separate "use, carry, or possession" of a firearm for each charge it brings. Judges Hartz and Matheson wrote concurring opinions, and Judge Kelly wrote a dissenting opinion.


Extended Summary:

Defendant Philbert Rentz used a gun one time, but after firing one shot, he hit and injured one victim and then hit and killed another victim. Thus, the use of the gun was "during and in relation to" two separate "crimes of violence" contrary to 18 U.S.C. § 924(c)(1)(A). Section 924(c)(1)(A) requires that five years be added on to the sentence imposed for the commission of the crime of violence if a gun is used "during and in relation to" a crime of violence or a drug trafficking crime.

Judge Gorsuch authored the majority opinion, and was joined by Judges Lucero, Tymkovich, Holmes, Bacharach and Moritz. The majority noted that federal courts have found this statute difficult to interpret, noting that Bailey v. United States, 516 U.S. 137 (1995), United States v. Castleman, 134 S. Ct. 1405 (2014), and United States v. Serafin, 562 F.3d 1105 (10th Cir. 2009), addressed questions related to the statute's interpretation, but had not yet addressed the issue presented in this case - what is the unit of prosecution? The court was presented with the question of whether Defendant Rentz may be charged with two violations of § 924(c)(1)(A) because he hit two victims, even though he only fired one shot.

The majority stated that the Second, Fifth, Seventh, and D.C. Circuits have stated that the government does need to prove a separate crime of using, carrying, or possessing a gun in order to bring separate charges under § 924(c)(1)(A). The Eighth Circuit, on the other hand, appears to have said no. The majority emphasized the importance of this decision, because it means the difference between Mr. Rentz receiving between 5 and 10 years for the § 924(c)(1)(A) charge, or a mandatory sentence of 25 years to life for the second charge in addition to the time he was sentenced for the first § 924(c)(1)(A) conviction. Further, all of this time is to be served consecutive to his sentences for the underlying assault and murder of the victims.

The court began by stating that there are a number of dilemmas presented by the variety of federal criminal offenses that are similar to Mr. Rentz's situation, citing to other federal cases with fact patterns that pose a § 924(c)(1)(A) question, and noted that the court has not clearly decided whether a separate "use, carry, or possession" is needed for each individual count under § 924(c)(1)(A).

The majority then discussed issues related to this case, stating that in Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court determined that the double jeopardy clause prohibited punishing a defendant under two different statutes for the same conduct unless the statutes each "requires proof of a fact with the other does not." The court noted that in previous cases, Tenth Circuit panels have rejected appeals arguing that double jeopardy also prohibits multiple punishments under a single statutory provision like § 924(c)(1)(A) when the single use of a gun results in two crimes. Previous panels have decided that if each underlying offense charged required proof of a fact that the other did not, the use of enhancement for the underlying gun crime was permissible.

The majority stated that this case is a unit of prosecution case, which discusses the "minimum amount of activity for which criminal liability attaches" for each charge under a single criminal statute. United States v. Cureton, 739 F.3d 1032, 1041 (7th Cir. 2014). This type of inquiry, the court explained, requires a thoughtful analysis of the verbs used in the statute. Because the statute requires that a person use, carry, or possess a firearm during the commission of certain offenses, the language suggests that each new conviction requires a new act that falls under using, carrying, or possessing. Further, the statute does not prohibit using, carrying, or possessing a firearm generally, which supports the idea that each new conviction requires a new act of using, carrying, or possessing. The majority also noted that the structure of the statute shows that you cannot have a number of charges that exceeds the number of uses, carries, or possessions.

The majority explained that the government's position is that it only has the burden to show using, carrying, or possessing as part of the first conviction. The majority stated that this view would require them to ignore language that is present in the statute for all charges except for the first one.

Next, the majority considered taking a broader view of the statute, but stated that doing so does not change the outcome. Section 924(c)(1)(C) provides specific instructions for cases involving multiple convictions, but it also does not appear to change the government's burden for convictions other than the first. Further, § 924(c)(1)(C) calls for a much greater sentence upon a second conviction than it does for a first. If Congress did not intend for the government to have to prove a second use, carry, or possession, then the leap in the mandatory sentence does not make sense.

The government stated that the legislative history of the statute is favorable to its position. It cited a paragraph in a 1984 committee report from when Congress amended the statute, which explicitly states that the sentences for violation of § 924(c)(1) are to be served consecutively with the underlying offense. The majority found this argument unpersuasive because it did not address the proper unit of prosecution or the language of the statute. The majority speculated that perhaps the government pointed to this to show that Congress meant for harsh sentences to result from violations of § 924(c)(1)(A), but the majority found no basis for that argument in the statute. In fact, the majority stated that one could make the argument that Congress intended to run sentences consecutive to the underlying offense because of the seriousness of making a conscious choice to use, carry, or possess a gun while committing specific crimes.

Further, the majority relied on the rule of lenity to resolve any ambiguities that remain in interpreting § 924(c)(1)(A), meaning that if the directions from the statute are unclear, the presumption is resolved in favor of the citizen, not the government. This keeps the power in the hands of the legislature as opposed to prosecutors, and also gives citizens fair warning of what types of conduct are against the law. The majority noted that the Supreme Court has applied the rule of lenity in similar situations, citing to Bell v. United States, 349 U.S. 81 (1955), addressing whether the transportation of multiple women for prostitution constituted multiple violations of federal law, or just one. It also cited to Ladner v. United States, 358 U.S. 169 (1958), where the court held that the single discharge of a weapon which injured two police officers should result in only one violation of law.

The majority also noted that in United States v. Anderson, 59 F.3d 1323, 1325 (D.C. Cir. 1995) (en banc), the government argued that the number of uses alone, not the number of predicate crimes limited the number of charges available - this argument is the exact opposite of what it argues here. The majority stated that if a statute is so obscure that even the government has been unable to maintain a consistent position, it is likely that citizens may lack notice about what conduct it prohibits.

Next the majority addressed the Eighth Circuit's holding in Sandstrom, where the Eighth Circuit did allow multiple charges after one gun use. However, the Eighth Circuit relied on reasoning from a Tenth Circuit panel which rejected a Blockburger challenge to multiple § 924(c)(1)(A) convictions. The majority explained that if the Eighth Circuit were presented with the same question that the Tenth Circuit addresses now, the Eighth Circuit would likely agree with the majority's reasoning in this case.

The majority acknowledged that a number of other questions regarding the statute's interpretation remain, but saves those questions for another day. Both sides concede that this case involves only one use, carry, or possession, so it is not necessary for the court to determine when one use, carry, or possession begins and another ends. The majority affirmed the ruling of the district court and vacated the previous opinion given by the panel.

Judge Hartz wrote a concurring opinion, and joined the concurrence of Judge Matheson. In the Hartz concurrence, Judge Hartz writes to express his belief that the government maintains a compelling position, but that it simply does not overcome the rule of lenity. Judge Hartz states that the language of § 924(c)(1)(A) in isolation is favorable to the government's position, but that this interpretation leads to very harsh consequences for a defendant, and that as a result, it should not be assumed that Congress intended the harshest possible consequence.

Judge Matheson also wrote a concurring opinion joined by Chief Judge Briscoe, and Judges Hartz and Phillips. His concurrence first discusses the difference between the elements of an offense and the unit of prosecution, the overlap between double jeopardy and unit of prosecution, the ambiguity of the statute regarding the unit of prosecution, the application of the rule of lenity, and the relationship between this case and Tenth Circuit precedent. Judge Matheson stated that charging two offenses based on one unit of prosecution is a violation of double jeopardy. The ambiguity of § 924(c) and the rule of lenity suggest that only one violation of the statute should be charged. Further, Judge Matheson stated that the court is less restricted by previous Tenth Circuit case law than the panel was, because it is an en banc hearing.

Judge Kelly issued a dissenting opinion in the case. Judge Kelly suggested that the unit of prosecution should be determined by the combination of the conduct specified in the statute. He stated that § 924(c) is a combination crime, because neither the underlying crime, nor the use of a gun is sufficient for a conviction. Judge Kelly stated that this fact is significant, and that the majority and concurring opinions should have given that fact greater weight. Further, Judge Kelly stated that the majority's concern that the government will overcharge is groundless, because the government's desire to bring multiple charges under § 924(c) is reasonable given the severity of the underlying offenses.

To read the full opinion, please visit:

http://www.ca10.uscourts.gov/opinions/12/12-4169.pdf

Panel: Briscoe, Chief Judge, Kelly, Lucero, Hartz, Tymkovich, Gorsuch, Holmes, Matheson, Bacharach, Phillips and Moritz.

Date of Issued Opinion: February 3, 2015

Docket Number: No. 12-4169

Decided: Previous panel decision was vacated and the ruling of the district court was affirmed.

Counsel:

Diana Hagen, Assistant United States Attorney (Carlie Christensen, Acting United
States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-
Appellant.

Jeremy M. Delicino, Delicino Lorenzo, LLC (Elizabeth A. Lorenzo, Delicino
Lorenzo, LLC, Salt Lake City, Utah, and Stephen R. McCaughey of Salt Lake
City, Utah, with him on the brief), for Defendant-Appellee.

Author: Gorsuch

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 02/07/2015 05:40 PM     10th Circuit     Comments (0)  

February 6, 2015
  United States v. Conrad -- Fourth Circuit
Headline: Not-Guilty-by-Reason-of-Insanity Acquittee Cannot Delay Dangerousness Assessment by Committing New Crimes

Area of Law: Criminal Law, Commitment Proceedings

Issues Presented: Whether 18 U.S.C. § 4243 applies to someone adjudicated not guilty by reason of insanity yet incarcerated on other charges before their commitment hearing. Whether 18 U.S.C. § 4243 authorizes a trial court to delay the commitment hearing until the acquittee is released from the subsequent incarceration.

Brief Summary: The commitment statute at issue in this appeal, 18 U.S.C. § 4243, provides for the evaluation and commitment of defendants found not guilty by reason of insanity ("NGI"). The statute's procedural framework mandates a psychological evaluation followed by a hearing to determine an acquittee's commitment status within forty days of the NGI determination. At the hearing, § 4243 gives the court two options: indefinite commitment or unconditional release. The choice between the two options is based on the acquitted person's perceived "dangerousness." Dangerousness is measured by the acquittee's potential to pose a substantial risk to the public.

Conrad, the appellant in this case, was adjudicated NGI in 2006. He received his psychological evaluation in 2007. At the subsequent hearing, the court determined Conrad would not pose a substantial risk to the public. However, instead of releasing him unconditionally, as contemplated by the commitment statute, the court released Conrad subject to various conditions. In 2010, Conrad was charged with murder. At Conrad's murder trial, the district court revoked his conditional release. In 2012, the United States Court of Appeals of the Fourth Circuit vacated both the revocation and the conditional release. The Fourth Circuit's decision invalidated Conrad's previous § 4243 proceeding, and as a result, required him to undergo a new dangerousness hearing.

Later that same year, before the new dangerousness hearing could be held, Conrad was charged with and convicted of additional offenses. The trial court denied Conrad's motion to dismiss his pending commitment proceeding and ordered that the dangerousness hearing be delayed until the end of Conrad's prison term. Conrad appealed.

The Fourth Circuit affirmed. The court held that no statutory provision rendered the commitment procedures inapplicable to Conrad simply because he had committed subsequent offenses. In addition, the court affirmed the decision to delay the commitment hearing until the end of his current prison term. In the court's view, the decision to delay was consistent with the framework of 18 U.S.C. § 4243 because it delayed the dangerousness hearing until Conrad regained the potential to pose a substantial risk to the public.

To read the full opinion, please click here.

Panel: DUNCAN, KEENAN, and DIAZ, Circuit Judges

Argument Date: 10/30/2014

Date of Issued Opinion: 01/13/2015

Docket Number: Case No. 13-7384

Case Alert Author: Bethany Henneman, Univ. of Maryland Carey School of Law

Counsel: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Abingdon, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Roanoke, Virginia, Zachary T. Lee, Assistant United States Attorney, Anne H. Lippitt, Third Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.

Author of Opinion: Judge Duncan

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/06/2015 03:53 PM     4th Circuit     Comments (0)  

  Central Radio Company, Inc., et al. v. City of Norfolk, Virginia -- Fourth Circuit
Headline: Bigger Not Always Better--Local Ordinance Limiting Size of Protest Signs But Exempting Other Displays Found Constitutional

Areas of Law: Constitutional Law, First Amendment

Issue Presented: Whether local sign ordinance which limits size of signs visible to the public, but exempts governmental and religious flags and emblems and noncommercial works of art from regulation violates the First Amendment.

Extended Summary: In April 2010, the Norfolk Redevelopment and Housing Authority ("NRHA") initiated condemnation proceedings against Central Radio, Inc., a radio manufacturing and repair business. The NRHA intended to transfer the property to Old Dominion University. In March 2012, while Central Radio was challenging the taking in state court (Central Radio eventually won), Central Radio placed a 375-square-foot banner on the side of its building facing a major, six-lane highway reading "50 YEARS ON THIS STREET / 78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT DOMAIN." The banner also depicted an American flag, Central Radio's logo, and a red circle with a slash across "Eminent Domain Abuse." Under a zoning ordinance that limited the size of signs ("sign code"), the City issued citations to Central Radio for displaying an over-sized sign and for failing to obtain a sign certificate prior to installation.

The sign code regulations were an attempt to enhance the City's aesthetic appeal and reduce distractions and obstructions to pedestrian and auto traffic. The sign code applied to any sign visible to the public, but did not apply to governmental or religious "flags or emblems" or noncommercial "works of art." In May 2012, Central Radio initiated a civil action to enjoin the City from enforcing the sign code, arguing that the exemptions made it unconstitutional. The district court granted summary judgment to the City, and Central Radio appealed.

In a split decision, the United States Court of Appeals for the Fourth Circuit affirmed the district court's decision and found that the City's sign ordinance was a content-neutral restriction on speech that satisfied intermediate scrutiny. The court held that the sign code was not a content-based regulation on speech because, despite its exception for governmental and religious flags and emblems and non-commercial works of art, the City had demonstrated a "reasonable relationship" between these exemptions and its legitimate interests in traffic safety and aesthetics.

Content-neutral regulations of speech are valid if they further a substantial government interest, are narrowly tailored to further that interest, and leave open ample alternative channels of communication. Here, the court found that (1) the City's desire to promote its physical appearance and reduce distractions was a substantial government interest; (2) the sign code was narrowly tailored to further that interest because the City had carefully calculated the costs and benefits associated with the burden on speech and the sign code did not burden speech more than necessary; and (3) unlike an outright ban on speech, the City's sign code left open ample alternative channels of communication because it only limited the size of signs. The court also concluded that the City did not selectively enforce the sign code and that Central Radio had not identified a "pattern of unlawful favoritism."

In a dissenting opinion, Judge Gregory argued that the sign code was a content-based regulation on speech subject to evaluation under strict scrutiny because the City did not demonstrate a "reasonable fit" between its exemptions for government and religious emblems and flags and its interest in improving aesthetics and traffic safety. Judge Gregory found that here, in a case that "implicates some of the most important values at the heart of our democracy: political speech challenging the government's seizure of private property," stopping short of subjecting the sign code to a more rigorous examination under heightened scrutiny "does a disservice to our cherished constitutional right to freedom of speech."

To read the full opinion, please click here.

Panel: Judges Gregory, Agee, and Keenan

Argument Date: 09/17/2014

Date of Issued Opinion: 01/13/2015

Docket Number: Case Nos. 13-1996, 13-1997

Decided: Affirmed by published opinion

Case Alert Author: Laura Koman, Univ. of Maryland Carey School of Law

Counsel: 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: Judge Gregory

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 02/13/2015 at 03:41 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 02/06/2015 03:06 PM     4th Circuit     Comments (0)  

  Nemphos v. Nestle Waters North America, Inc. - Fourth Circuit
Headline: Food for Thought - FDA Regulations Can Preempt State Law Claims

Area of Law: Federal Agency Law, State Tort Law

Issue Presented: Whether federal law, which provides uniform labeling standards for certain food products, preempts the plaintiff's state-law claims.

Brief Summary: Michelle Nemphos filed various tort and fraud claims under Maryland state law against the manufacturers of bottled water, infant formula, and baby food that her minor daughter consumed before developing a condition known as dental fluorosis. Dental fluorosis is a condition that produces discoloration of tooth enamel, and is caused by excessive ingestion of fluoride. Nemphos alleged that Nestle USA, Inc., The Dannon Company, Inc., and Gerber Products Co. failed to warn about the risks of dental fluorosis for children who consume large amounts of fluoride, and that they had misleadingly marketed their fluoride-containing products as especially beneficial to children.

The United States Court of Appeals for the Fourth Circuit held that federal law preempted Nemphos' state law claims. At issue was the Food and Drug Administration's ("FDA") power to regulate the ingredients of a food through FDA labeling requirements. Specifically, the labeling requirements protect a product's "standard of identity" across the country. The "standard of identity" ensures that a consumer buying a company's food product in New York receives the same product that a consumer buys from that company in California or Alaska.

The Fourth Circuit held that because the FDA's labeling requirements mandate a certain level of fluoride in the products, Nemphos could not hold those companies liable under state law for complying with the federal regulation. In addition, the court held that Nemphos could not maintain a failure to warn claim because the FDA does not require fluoride warnings on labels.

The court held that a litigant cannot impose a duty under state law that is inconsistent with existing federal requirements. Under 21 U.S.C. § 341, federal regulations such as a food's "standard of identity" prevail over, and preempt, certain non-identical state requirements.

To read the full opinion, please click here.

Panel: Judges Wilkinson, Motz, and Floyd

Argument Date: 10/30/2014

Date of Issued Opinion: 01/08/2015

Docket Number: Case No. 12-2718

Case Alert Author: Douglas Sampson, Univ. of Maryland Carey School of Law

Counsel: Leah Marie Nicholls, PUBLIC JUSTICE, P.C., Washington, D.C., for Appellant. Catherine Emily Stetson, HOGAN LOVELLS US LLP, Washington, D.C.; Peter Buscemi, MORGAN LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees. ON BRIEF: Leslie A. Brueckner, PUBLIC JUSTICE, P.C., Oakland, California; Christopher T. Nidel, NIDEL LAW, PLLC, Washington, D.C.; Christopher T. Nace, PAULSON & NACE, Washington, D.C., for Appellant. Victoria J. Miller, Kristin M. Hadgis, MORGAN, LEWIS & BOCKIUS LLP, Philadelphia, Pennsylvania, for Appellee TheDannon Company, Inc. Lauren S. Colton, Baltimore, Maryland, Michael L. Kidney, HOGAN LOVELLS US LLP, Washington, D.C., for Appellees Nestle USA, Inc., Nestle Waters North America, Inc., and Gerber Products Company.

Author of Opinion: Judge Wilkinson

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/06/2015 02:15 PM     4th Circuit     Comments (0)  

February 3, 2015
  United States v. Wray
Case Name: United States v. Wray -- Tenth Circuit

Headline: Tenth Circuit holds that age-related sexual offenses are not per se crimes of violence under the federal Career Offender sentencing guidelines.

Areas of Law: Criminal Law

Issues Presented:

1. Is age-related statutory rape a per se forcible sex offense under Application Note 1 of the Career Offender sentencing guidelines?

2. Is age-related statutory rape a per se crime of violence under the residual clause of the Career Offender sentencing guidelines?

Brief Summary:

The defendant pleaded guilty to being a felon in possession of a firearm. During sentencing, his previous conviction for "Sexual Assault - 10 Years Age Difference" under Colorado state law was cited as a prior "crime of violence" and used as a predicate for increasing his sentence under the federal Career Offenders sentencing guidelines. The defendant objected to this use, arguing that the district court erred in concluding that violation of the Colorado statute was a per se crime of violence.

The Tenth Circuit held that violation of Colorado's statutory rape law was not a forcible sex offense under the federal Career Offenders sentencing guidelines, nor was it a crime of violence under the residual clause. The court remanded the case to the district court for resentencing.

Extended Summary:

The defendant, Mr. Wray, pleaded guilty to being a felon in possession of a firearm. He was sentenced to 77 months imprisonment and three years' supervised release. His presentence investigation report (PSR) contained a prior conviction under Colo. Rev. Stat. § 18-3-402(1)(e) for "Sexual Assault - 10 Years Age Difference". This was cited as a prior "crime of violence" and used as a predicate for increasing his base offense level from a 20 to 24. This resulted in an increased term of imprisonment. The defendant objected to this use of his prior conviction, but the district court found that it constituted a crime of violence. The defendant appealed to the Tenth Circuit Court of Appeals.

The court applied a de novo standard of review. It began its analysis by reviewing the sentencing guidelines at issue. Under U.S.S.G. § 2K2.1(a)(2), a defendant is assigned a base offense level of 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." The commentary to that statute points to the career-offender guideline, U.S.S.G. § 4B1.2, for the definition of a "crime of violence". That definition of a "crime of violence" includes "(a) any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Application Note 1 to U.S.S.G. § 4B1.2 provides that "forcible sex offenses" constitute crimes of violence but does not define forcible sex offenses.

All parties agreed that the defendant's prior conviction did not satisfy the elements of § 4B1.2(a)(1). Rather, the government contended that Colorado's statutory rape law under which the defendant was convicted addressed "forcible sex offenses" such that the defendant's conviction fell within the ambit of Application Note 1 to U.S.S.G. § 4B1.2. Alternatively, the government argued that the statutory rape law addressed conduct that fell within the residual clause of § 4B1.2(a)(2).

The court noted that the crime of violence definition contained within § 4B1.2 is virtually identical to the definition of a "violent felony" contained in the Armed Career Criminal Act (ACCA). In James v. United States, 550 U.S. 192, 206 (2007), the Supreme Court crafted an analysis to determine if crimes constitute a violent felony under the ACCA. The Tenth Circuit and several other circuit courts adopted the James analysis to determine if criminal offenses constitute "crimes of violence" under § 4B1.2. That analysis utilizes a categorical approach, looking at the fact of conviction and the statutory definition of that prior offense without considering the facts unique to the defendant's own conviction. In James, the Court considered whether the defendant's prior conviction for attempted burglary "otherwise involv[ed] conduct that presents a serious risk of physical injury to another" under a provision of the ACCA that closely mirrors the residual clause of § 4B1.2(a)(2). The Court concluded that the attempted burglary was a violent felony because it posed the "same kind of risk" as completed burglary, such as the potential for violent confrontation between the burglar and an innocent bystander. The Court focused on the potential risk contemplated by the statute instead of the actual or factual risk in the defendant's particular situation.

A year after the James decision, the Supreme Court decided Begay v. United States, 553 U.S. 137 (2008). In Begay, the Court held that Driving Under the Influence (DUI) convictions were not violent felonies under the ACCA. The Court concluded that the Sentencing Commission's use of enumerated offenses in the ACCA's "violent felony" definition showed an intent that the residual clause only encompass crimes "roughly similar, in kind as well as in degree of risk posed" to the enumerated offenses. The Court held that the risk posed by DUI offenses was not similar in nature to those considered by the enumerated offenses. It noted that the enumerated crimes "all typically involve purposeful, violent, and aggressive conduct" whereas DUI statutes impose strict liability without concern for criminal intent or the aggressive nature of the conduct. Prior convictions under such statutes would therefore provide little (if any) indication that the defendant would engage in the kind of violent criminal behavior contemplated by the sentencing guidelines.

The Tenth Circuit then considered the most recent Supreme Court case to address the ACCA residual clause. In Sykes v. United States, 131 S. Ct. 2267 (2011), the Court held that the crime of vehicle flight from law enforcement fell within the residual clause because risk of violence is inherent in vehicle flight and that risk is similar to that of the ACCA's enumerated crimes. The Court distanced itself somewhat from the qualitative risk analysis it employed in Begay, noting that "in general, levels of risk divide crimes that qualify from those that do not." The strict liability DUI statutes in Begay involved a level of risk clearly distinct from the enumerated crimes in the ACCA, whereas the vehicle flight crime involved a level of risk similar to that seen in the ACCA.

The Tenth Circuit began its analysis within the framework of the Supreme Court precedent by first considering whether the defendant's prior conviction was a "forcible sex offense". The government argued that, because Colorado's statutory rape statute at issue presupposes any possible consent from the victim, any sexual conduct covered by the statute is inherently forcible. The court disagreed, citing to the Fourth Circuit's reasoning in United States v. Leshen, 453 F. App'x 408, 415 (4th Cir. 2011) (unpublished). In Leshen, the Fourth Circuit noted that the use of the term "forcible" demonstrates that the Sentencing Commission contemplated some sex offenses as nonforcible. It also suggested that all other criminal offenses listed in commentary to § 4B1.2 entail the use of physical force, are repetitions of the enumerated offenses, or "present a serious potential risk of physical injury that is similar in kind and degree to the listed offenses". In the present case, the court noted the absence of legal consent does not preclude the possibility of factual consent in statutory rape cases. As such, the act prohibited by the statutory rape law will not always be inherently "forcible" in the sense that is more generally contemplated by § 4B1.2. The court further noted that Colorado has a separate statute for sex offenses it deems to be forcible, indicating a legislative belief that the statutory rape was not "forcible" per se.

The government also argued that the statutory rape was a forcible sex offense because statutory rape and sex offenses "where consent is not legally valid" are included in the definition of forcible sex offenses provided by commentary to U.S.S.G. § 2L1.2. This particular sentencing guideline pertains to the unlawful entry into or unlawful remaining in the United States. The court was unconvinced by this argument, noting that the Sentencing Commission could have easily pointed the Career Offenders sentencing guidelines to § 2L1.2 for the definition of a crime of violence, but instead referred to § 4B1.2 and its less inclusive definition. It further noted that the Commission's explicit inclusion of statutory rape as a forcible sex offense under § 2L1.2 but not under § 4B1.2 demonstrated a clear intent for statutory rape to not be considered a per se forcible sex offense.

In dismissing the government's two arguments that the defendant's statutory rape conviction was a per se forcible sex offense, the court cited to its decision in United States v. Dennis, 551 F.3d 986 (10th Cir. 2008). In Dennis, the court held that the defendant's violation of Wyoming's "indecent liberties with a minor" statute was not a crime of violence under § 4B1.2 because that statute "lack[ed] force or assault as an element, let alone lack of consent." In accordance with this decision and other guiding precedent, the court held that violation of age-based sexual contact statutes are not per se "forcible sex offenses" under Application Note 1 to U.S.S.G. § 4B1.2.

The court then considered whether the defendant's prior conviction fell within the residual clause of § 4B1.2(a)(2) because it "otherwise involves conduct that presents a serious potential risk of physical injury to another." It further explained the effects of Begay and Sykes on its analysis, observing that Sykes limited the Begay "purposeful, violent, and aggressive" test to strict liability, negligence, and recklessness crimes. It explained that "[t]he commission of a strict liability offense, while potentially posing a serious risk of physical injury, does not involve purposeful, violent, or aggressive conduct."

The court turned its analysis to determining whether the statute under which the defendant was previously convicted, Colo. Rev. Stat. § 18-3-402(1)(e), is a strict liability statute. Under that statute, a person is guilty of sexual assault if they "knowingly inflict sexual intrusion or sexual penetration on a victim [and] . . . (e) [a]t the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age." The parties agreed that the phrase "knowingly" does not apply to the age of the victim, the statutory element that makes the conduct illegal. However, the government argued that the absence of a mens rea regarding the victim's age does not render the statute one of strict liability because the sexual act itself requires a mens rea. The court disagreed because the only element of the statute that distinguishes unlawful consensual sex from consensual sex is the age of the victim and that element does not have a mens rea requirement. The court also pointed to People v. Salazar, 920 P.2d 893, 895 (Colo. App. 1996), in which the Colorado Court of Appeals held that the sexual assault of a child statute, similar in nature to the statute at issue here, provided for strict liability even though it contained the word "knowingly". Here, the court found that Colorado's statute was one of strict liability. It held that the Begay exception applied and precluded a conviction under that statute from falling within the residual clause of the crime of violence definition.

The court held that the defendant's prior conviction was not a crime of violence and remanded to the district court for resentencing.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-1086.pdf

Panel: Kelly, Hartz, Matheson

Date of Issued Opinion: January 27, 2014

Docket Number: No. 14-1086

Decided: Remanded for resentencing.

Counsel:
Matthew Belcher, Assistant Federal Public Defender, (and Virginia L. Grady,
Federal Public Defender, on the briefs), Denver, Colorado, for Defendant -
Appellant.

Paul Farley, Assistant United States Attorney, (and John F. Walsh, United States
Attorney, on the brief), Denver, Colorado, for Plaintiff - Appellee.

Author: Kelly

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 02/03/2015 10:32 PM     10th Circuit     Comments (0)  

February 2, 2015
  Fezzani v. Bear, Sterns & Co., Inc
Headline: Second Circuit Denies Rehearing Petition in Case Alleging Securities Fraud by Bear Stearns, Clarifying Standard for Liability in Market Manipulation Cases

Area of Law: Securities

Issue Presented: Whether a victim's reliance on a defendant's direct communications is a required showing in every market manipulation case.

Brief Summary: After the Second Circuit affirmed the dismissal of their securities fraud claim against Bear Stearns (the clearing broker in their transactions), the plaintiffs-appellants petitioned for a rehearing or rehearing en banc. The SEC filed an amicus brief supporting them, arguing that the Second Circuit's opinion had incorrectly held that in market manipulation cases, liability could only attach to persons who actually communicated a misrepresentation to a victim. The Second Circuit rejected the petition, but clarified that its earlier opinion had "not require[d] that reliance by a victim on direct oral or written communications by a defendant...be shown in every manipulation case." Rather, a showing of reliance can instead be based on market activity that is designed to send a false pricing signal to the market. Here, however, there was no showing of such market activity, and thus the case was properly dismissed. To read the whole opinion, please visit http://www.ca2.uscourts.gov/de...95b784e475d/3/hilite/

Extended Summary: The plaintiffs-appellants petitioned for rehearing from the Second Circuit's related summary order and opinion, which had affirmed the dismissal by the United States District Court for the Southern District of New York of their dismissal of federal securities law fraud claims against a clearing broker (Bear Stearns) and individual investors. They argued that the Second Circuit's affirmance conflicted with another Second Circuit decision, Levitt v. J.P. Morgan, that had been filed just before its ruling in their case. Specifically, they asserted that their case presented very similar factual allegations to those in Levitt, and since the Second Circuit held that a class was properly certified in that case, their case should proceed as well.

The Second Circuit denied their petition. The court first explained that there was no inconsistency, because Levitt had dealt with whether a class was properly certified, rather than the issue here: whether the allegations were sufficient to state a claim for relief.

The Second Circuit also addressed the argument, made by the SEC in an amicus brief, that its earlier dismissal of this case had erroneously conveyed that, in any and all manipulation cases, liability attaches only to persons who communicate a misrepresentation to a victim. Quoting ATSI Commc'ns, Inv. V. Shaar Fund, Ltd., the SEC argued that "the essence of manipulation is not a misrepresentation, but market activity ... that itself creates a 'false pricing signal." The court clarified that "we agree with the propositions of law asserted by the SEC that, in a manipulation claim, a showing of reliance may be based on 'market activity' intended to mislead investors by sending 'a false pricing signal to the market,' upon which victims of the manipulation rely." In this case, however, the plaintiffs-appellants' complaint failed to so plead.

In order to succeed in a private action for damages stemming from false pricing signals to a market, it must involve: (i) particular securities; (ii) manipulated by particular defendants; which (iii) caused the losses to particular buyers. Here, there was no market that existed for the shares that the defendants sold to the appellants. In fact, the court found that the shares in question were not traded in any structure that could be deemed an independent, arms-length transaction. Therefore, the court concluded, there was no plausible claim that the prices paid by appellants were based on "false pricing signal[s]."

Date of Issued Opinion:
01/30/2015

Docket Number: 14-3983, 09-4414

Case Alert Author: Eddie Chang

Counsel: Max Folkenflik, Folkenflik & McGerity, for Plaintiffs-Appellants; Kerry A. Dziubek and Michael D. Schissel, Arnold & Porter LLP for Appellees Bear, Stearns & Co. Inc. and Bear, Stearns Securities Corp.; Howard Wilson and Scott A. Eggers, Proskauer Rose LLP for Defendant-Appellee Richard Harriton; Anne K. Small, Michael A. Coley, Jacob H. Stillman, John W. Avery, and Jeffrey A. Berger, for amicus curiae The Securities and Exchange Commission

Author of Opinion: Judge Winter (majority); Judge Lohier (concurring in part, dissenting in part)

Case Alert Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 02/02/2015 10:57 AM     2nd Circuit     Comments (0)  

January 31, 2015
  Felder's Collision Parts, Inc. v. All Star Advertising Agency, Inc. - Fifth Circuit
Headline: Fifth Circuit Affirms Dismissal of Antitrust Suit Targeting GM's Parts Rebates.

Area of Law: Antitrust.

Issue Presented: Whether, in a predatory-pricing antitrust suit, the effect of a manufacturer's rebate to its dealer is considered in deciding whether the dealer is selling its product at a price below its average variable cost.

Brief Summary: Felder's Collision Parts, a dealer of aftermarket General Motors ("GM") parts, sued GM and All Star, a dealer of original GM parts, for violating state and federal antitrust laws by engaging in predatory pricing. The U.S. District Court for the Middle District of Louisiana dismissed the antitrust claims because Felder's failed to plead facts indicating All Star was selling GM parts for less than All Star's average variable cost. Although at the point of sale All Star sold the parts for a price below its average variable cost, GM offered rebates following sale that, if considered, effectively decreased the average variable cost below the sales price. The Fifth Circuit affirmed the dismissal, reasoning that "[t]he price versus cost comparison focuses on whether the money flowing in for a particular transaction exceeds the money flowing out." In this case, when the rebate was considered, the money flowing in exceeded the amount flowing out; therefore, Felder's did not make a prima facie showing of price predation and the district court's dismissal of Felder's antitrust claims was affirmed.

Extended Summary: This case concerns competitors in the automobile parts market. There are two types of automobile parts: aftermarket parts, which are produced by a supplier other than the vehicle manufacturer, and original equipment manufacturer ("OEM") parts, which are produced by the vehicle manufacturer. Historically, an aftermarket part has been less expensive than the equivalent OEM part. In order to better compete with dealers of aftermarket parts for GM vehicles, GM began a "Bump the Competition" program. Under this program, when there is a matching aftermarket part, GM allows its dealers to sell the OEM part for 33% less than the prevailing market price for the aftermarket equivalent. Due to the size of this discount, OEM parts dealers, such as All Star, sold parts below the price they paid to GM for the part. After the sale, GM rebated the dealer the difference between the sales price and the price the dealer paid GM for the part. Additionally, GM paid the dealer a 14% profit. Felder's Collision Parts, an aftermarket parts dealer, brought suit under state and federal antitrust laws alleging that the sale of parts by All Star and other GM OEM dealers below the price paid to GM constituted predatory pricing.

To make out a prima facie case of price predation in the Fifth Circuit, one must allege that a predator is selling a good or service below the average variable cost of that good or service. Average variable cost is the sum cost of variable inputs such as manufacturing materials, labor, and electricity divided by the total amount of output. While calculating average variable cost is often arduous, in this case the average variable cost was simply the price the dealer paid to GM for the part. If GM's rebates were not considered, All Star sold parts to consumers below the amount they paid to GM, which would satisfy one essential element of predatory pricing. However, if GM's rebates were considered, All Star sold parts to consumers above the effective price they paid to GM, which would quash a price predation claim.

The Fifth Circuit concluded that GM's rebates should be included within the predatory pricing analysis because a time lapse between sale and rebate did not modify All Star's profitability. Contrary to Felder's "freeze frame" theory, the court did not agree that price and cost should be fixed at the time of sale because such a theory disregarded the economic reality that All Star's sales under Bump the Competition were profitable. The relevant inquiry for the price-versus-cost comparison is whether the alleged predator's sales are profitable, which generally means money flowing in exceeds money flowing out. Time lapse between a dealer's sale and a manufacturer's rebate for that sale does not exclude the rebate from the profitability calculus. Because All Star was selling OEM parts for more than they paid for them when the rebates were considered, these sales could not constitute predatory pricing. Therefore, the district court's dismissal was affirmed. It is important to note that Felder's did not allege GM was selling to its dealers below its average variable cost; instead, its complaint only alleged GM's dealers were selling to consumers below their average variable cost.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/14/14-30410-CV0.pdf.

Panel: Circuit Judges King, Jolly, and Costa

Argument Date: 12/3/2014

Date of Issued Opinion: 1/27/2015

Docket Number: No. 14-30410

Decided: Affirmed

Case Alert Author: Matthew Cameron

Counsel: James M. Garner, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., for Plaintiff-Appellant Felder's Collision Parts, Inc.; Michael W. McKay, Stone, Pigman, Walter & Wittman, for Defendant-Appellee All Star Advertising Agency, Inc.; Mark Aaron Cunningham, Jones Walker LLP, for Defendant-Appellee General Motors, L.L.C.

Author of Opinion: Judge Costa

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 01/31/2015 05:42 PM     5th Circuit     Comments (0)  

January 30, 2015
  Saldana v. Occidental Petroleum - Ninth Circuit
Headline: Ninth Circuit panel affirms the dismissal by the district court of an action in which family members of three union leaders killed in Columbia sued Occidental Petroleum under the Alien Tort Statute and California tort law, as the action raised nonjusticiable political questions.

Area of Law: Political Question Doctrine

Issue Presented: Whether the district court had subject matter jurisdiction over a claim when Plaintiffs "advanced no theory of liability . . . that would not apply with equal force to the foreign policy and national security determinations made by the political branches."

Brief Summary: Plaintiffs were family members of three union workers killed by several soldiers who belonged to the 18th Brigade of the Colombian National Army ("CNA"). The murders occurred in 2004. After a hearing by Colombian courts, the soldiers were found guilty; however the 18th Brigade was absolved of any responsibility for the soldier's actions. A further hearing by the United Nations Office of the High Commissioner for Human Rights also concluded the soldiers acted alone and not part of any general government policy.

Seven years later, Plaintiffs sued Occidental Petroleum in the Central District of California under the Alien Tort Statute and California tort law, claiming Occidental bore responsibility for the murders. Their theory was that, since Occidental's Colombian subsidiary, OxiCol, had provided funding to the 18th Brigade in return for protecting a pipeline under OxiCol's control, Occidental had control of the18th Brigade and was therefore ultimately responsible for these murders.

The district court dismissed the complaint, finding that, since both Occidental and the United States government provided funding to the 18th Brigade, Plaintiffs had established no separate cause of action that would not implicate United States foreign policy. Therefore, the court held the claims advanced were nonjusticiable due to the political question doctrine. Plaintiffs appealed to the Ninth Circuit.

The Ninth Circuit panel reviewed the issue de novo. The panel applied the six-factor test elucidated in Baker v. Carr, 369 U.S. 186 (1962), and determined there was no way to sever Plaintiffs' claims from the political question doctrine. Since Plaintiffs advanced no theory explaining Occidental's control over the 18th Brigade that did not involve Occidental's partial funding of the Brigade, and the United States was also involved in funding the 18th Brigade, any adjudication involving this issue would necessarily involve second guessing U.S. Foreign policy.


Extended Summary: Occidental Petroleum ("Occidental") is a Houston based oil and gas exploration and production company. Occidental is a Delaware corporation, and has headquarters in Los Angeles, where it was founded in 1920. In 2004, Occidental was engaged in exploration for oil and natural gas in Colombia. At that time, the Colombian government, often with the assistance of the U.S. government, was involved in a conflict with leftist guerrilla groups, most notably the Revolutionary Armed Forces of Colombia ("FARC") and the National Liberation Army ("ELN").

Occidental's Colombian subsidiary, Occidental de Colombia ("OxyCol"), together with Ecopetrol, Colombia's state-owned oil company, had previously discovered a large oil field. OxyCol and Ecopetrol built a pipeline to transport the oil from the oil field to the coast, to be transported by tanker. OxyCol operated the pipeline while Ecopetrol, OxyCol, and a Spanish oil company called Repsol, controlled the oilfield. The pipeline cut through guerrilla territory, and was subjected to increasing attacks from guerrilla forces in the early 2000's as the guerrillas attempted to disrupt the Colombian economy.

In response, the United States, through a $99 million aid program, attempted to help secure the pipeline from guerrilla attacks. Part of this aid went to funding, training, and equipping the 18th Brigade, part of the Colombian army. U.S. Special Forces were involved in training the 18th Brigade. In May 2004, Ecopetrol agreed to provide the Colombian Ministry of National Defense with financial support in exchange for increased protection of the pipeline. Neither Oxycol nor Occidental were signatories to the agreement, but along with the United States government, also began to provide funding.

In August 2004, four members of the 18th Brigade assisted by a civilian murdered three union leaders. They claimed the leaders were guerrillas who had attacked the soldiers. The families of the union members claimed the soldiers executed the union leaders. The union leaders were part of a larger protest movement. This movement claimed the pipeline was responsible for environmental destruction, and also claimed the Columbian National Army ("CNA") was committing "acts of barbarity" in connection with protecting the pipeline. Furthermore, the movement protested OxyCol's plan to drill on land belonging to the indigenous U'Wa people.

Proceedings in Colombia regarding the incident determined that the soldiers were guilty of executing the union leaders, but that they acted alone, without the involvement of the CNA. The United Nations Office of the High Commissioner for Human Rights also concluded the killings were not "committed as part of an official policy or that they were ordered by senior government officials. The United States State Department has asserted since then "that the Colombian Government and Armed Forces are meeting statutory criteria related to human rights and severing ties to paramilitary groups."

Plaintiffs filed suit against Occidental in 2011 in the Central District of California. Three causes of action were alleged under 28 U.S.C. § 1350, known as the Alien Tort Statute, and seven were alleged under California tort law. Plaintiffs claimed Occidental was responsible for the actions of its subsidiary, OxiCol. Plaintiffs claimed the financial support given the 18th Brigade by OxiCol made the 18th Brigade OxiCol's personal security force, with operational control over the 18th Brigade's activities. The complaint alleged that "Occidental knew or should have known" of "widespread human rights violations" committed by the CNA, in particular, the 18th Brigade. Plaintiffs alleged this knowledge and control of the 18th Brigade by Occidental's Colombian subsidiary made Occidental responsible for war crimes committed by the 18th Brigade against Colombian civilians.

The district court granted Occidental's 12(b)(1) motion to dismiss on political question grounds. The court relied on Baker v. Carr, 369 U.S. 186 (1962), and Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007). The District Court held "that Plaintiffs 'advanced no theory of liability that would not apply with equal force to the foreign policy and national security determinations made by the political branches . . .'" and therefore the political question doctrine could not be avoided. Since Plaintiffs had not requested additional time for discovery, the suit was dismissed with prejudice.

The Ninth Circuit panel reviewed the district court's dismissal for lack of jurisdiction de novo. The panel determined they may "look beyond the compliant to facts properly in the record, id. at 982, and 'need not presume the truthfulness of the plaintiffs' allegations,' White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)."

The Court stated that, as held in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803), the judicial branch has no jurisdiction over political questions due to the separation of powers between the branches of government. The determinative factor is whether or not "Plaintiff's claims implicate a nonjusticiable political question." Baker, supra, provides a six factor test with which to weigh each claim in the complaint. These factors include (1) whether a political department has a constitutional commitment to the issue; (2) no judicially discoverable or manageable standards to resolve the issue; (3) the impossibility of deciding whether the issue is fit for judicial review without first considering the policy non-judicially; (4) whether a judicial resolution would express lack of respect for the other branches of government; (5) a requirement for adherence to previously made political decisions; or (6) the potential of embarrassment to other branches of the government.

Applying these factors, the Ninth Circuit panel determined the district court's analysis was correct. The panel concluded that, once the complaint was "stripped of implausible allegations," each of the Plaintiff's claims of Occidental's "control" of the 18th Brigade rested on nothing more than Occidental's partial funding of the 18th Brigade. The court could find no "principled way to sever Occidental's funding from that of the United States . . . ."

Therefore, the allegations in the complaint were "inextricably bound" with the political question of "the propriety of the United States' decision to provide $99 million worth of training and equipment at the same time and for the same purpose as Occidental allegedly providing $6.3 million - and thus beyond the jurisdiction of our courts."

This holding was supported by Corrie v. Caterpillar, supra, in which Plaintiffs sued Caterpillar for supplying bulldozers to the Israeli Defense Forces, one of which crushed Rachel Corrie, a protestor of Israel's practice of demolishing homes that belonged to the families of terrorists. Since the sales of Caterpillar tractors to the Israeli military was financed by the United States government, the court dismissed the complaint, as "the action 'would necessarily require the judicial branch . . . to question the political branches' decision to grant extensive military aid to Israel.'"

The Court went on to explain that Plaintiffs were wrong in asserting the Court need only consider Occidental without looking to the United States government's role since United States foreign policy would have to be considered in a resolution of the case. Plaintiff's cited cases in support of this argument that Occidental's role could be considered separately from that of the United States government, but the cases Plaintiffs cited dealt with execution of military-related operations, and not the policy behind them, and so were therefore distinguishable from this case. Plaintiff's might have been able to sever their claims under their agency theory of liability and negligent hiring, but they failed to "plausibly plead those claims, because they have not pleaded 'factual content that allows the court to draw the reasonable inference that' Occidental had operational control of the 18th Brigade."

Lastly, Plaintiff's asserted the failure of the State Department to submit a statement of interest "indicates a lack of conflict." However, precedence "clearly state[d] that the State Department's silence on this issue [was] a neutral factor. Alperin, 410 F.3d at 556." And since Plaintiff's did not pursue discovery on the political question issue below, the Ninth Circuit panel declined to consider this issue.

Judge Trott, in his concurring opinion provided more background information which supported the finding that the complaint raised nonjusticiable political questions.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/12/15/12-55484.pdf

Panel: Alex Kozinski, Stephen S. Trott, and Consuelo M. Callahan, Circuit Judges

Date of Issued Opinion: December 15, 2014

Docket Number: 12-55484

Decided: Affirmed

Case Alert Author: Michael Zatlin

Counsel: Terrence P. Collingsworth (argued), Conrad & Scherer, LLP,
Washington, D.C., for Plaintiffs-Appellants. Matthew T. Kline (argued) and Dimitri D. Portnoi,
O'Melveny & Myers LLP, Los Angeles, California; Jonathan
Hacker and Anton Metlitsky, O'Melveny & Myers LLP,
Washington, D.C., for Defendant-Appellee.

Author of Opinion: Per Curiam. Concurrence by Judge Trott.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 01/30/2015 05:38 PM     9th Circuit     Comments (0)  

  Campion v. Old Republic Protection Company, Inc. - Ninth Circuit
Headline: Ninth Circuit Dismisses Appeal in Class Action as Moot after Class Representative Voluntarily Settled Individual Claims

Areas of Law: Civil Procedure

Issue Presented: Whether an appeal in a class action becomes moot after the putative class representative voluntarily settled his individual claims and no longer had a financial interest in the outcome of the case, even though he expressly retained his right to appeal.

Brief Summary: After the district court denied class certification and granted partial summary judgment in favor of Old Republic Protection Company, Inc. ("Old Republic"), Douglas Campion ("Campion") reached a settlement agreement in which he agreed to dismiss the putative class claims without prejudice but reserved whatever right to appeal that he had.

In a concise per curium opinion, the Ninth Circuit panel ruled that an appeal in a class action suit requires that the class representative retain a personal stake in the case. Without such appropriate interest, Campion lacked standing, ultimately resulting in mootness of the class action.

Extended Summary: Campion brought a class action against Old Republic, a company that sells home warranty plans, alleging that it arbitrarily denied claims made by him and similarly situated policyholders and cheated them out of benefits owed under their policies.

After the district court denied class certification and granted partial summary judgment in favor of Old Republic, Campion reached a settlement agreement in which he agreed to dismiss the putative class claims without prejudice but reserved whatever right to appeal that he had.

The panel cited to Narouz v. Charter Commc'ns, LLC and explained that the test for whether an appeal is moot after the putative class representative voluntarily settles his individual claims is whether the class representative retains a personal stake in the class claim. A personal stake in the class claim, according to the Court, turned on the language of the settlement agreement. The panel further explained that a personal stake must also be concrete or financial in nature if the putative class representative voluntarily settles his or her claims. When his or her claims expire involuntarily the class representative's personal stake may, in some circumstances, include theoretical interests such as those akin to a private attorney general.

Within the framework of Narouz, the facts that Campion voluntarily settled all his claims and would not receive a penny more no matter what would happen on appeal led the panel to conclude that Campion, as the class representative, lacked any concrete or financial interest in the class claim. Without the possibility of gaining any more compensation for his claims, attorney's fees, costs, or damages, Campion fell short of the standing requirements, and the appeal was therefore dismissed as moot.

Though in agreement with the outcome, Circuit Judge Owens dissented from the majority's holding that the appeal is moot, specifically disagreeing with the majority's interpretation of the "financial-in-nature" limitation in Narouz. Judge Owens opined that nothing in Narouz or any other Ninth Circuit case required the personal stake to be financial. Judge Owens reminded the majority that courts have recognized non-financial personal stakes such as vindication of the class's interests, the procedural right to represent a class, and the right to pursue class-wide injunctive relief. In addition, Judge Owens referred to Pitts v. Terrible Herbst, Inc. and stated that "a plaintiff whose individual claims become moot may appeal the denial of class certification so long as he retains 'either an individual economic interest... or a private-attorney-general-like interest in having a class certified if the requirements of rule 23 are met.'"

Nevertheless, Judge Owens concluded his dissent by predicting that the Supreme Court will someday rule in accordance with the majority in this case. Until then, he "read[s Ninth Circuit] precedent differently than [his] colleagues do."]

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/12/31/12-56784.pdf

Panel: Andrew J. Kleinfeld, Susan P. Graber, and John B. Owens, Circuit Judges.

Date of Issued Opinion: December 31, 2014.

Docket Number: 12-56784

Decided: Dismissed as moot.

Case Alert Author: Daniel S. Seu

Counsel: Yury A Kolesnikov (argued) and Francis A. Bottini, Jr. (briefed), Bottini & Bottini, Inc., La Jolla, California, for Plaintiff-Appellant; Jay N. Varon (argued), Foley & Lardner LLP, Washington, D.C., Tammy H. Boggs (briefed), Foley & Lardner LLP, San Diego, California, for Defendant-Appellee.

Author of Opinion: Per Curiam.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 01/30/2015 05:37 PM     9th Circuit     Comments (0)  

  U.S. v. Camou - Ninth Circuit
Headline: 9th Circuit reversed district court's denial of motion to suppress images of child pornography due to warrantless search by police.

Area of Law: Criminal law

Issue Presented: Whether defendant's motion to suppress images of child pornography found on his cell phone during a warrantless search should have been granted.

Brief Summary: Camou, the defendant, and a co-defendant were arrested while smuggling an undocumented immigrant. Camou's truck was seized, as well as a cell phone found inside the cab of the truck. Approximately one hour and twenty minutes after Camou's arrest and after interviewing the co-defendant, a Border Patrol agent conducted a warrantless search of Camou's cell phone and found numerous images of child pornography. Several days later the United States Attorney's Office executed a federal search warrant for Camou's cell phone and found hundreds of images of child pornography.

During criminal proceedings, Camou made a motion to suppress the images found on his cell phone but the district court denied the motion as being a lawful search incident to arrest as well as being covered by the good faith and inevitable discovery exceptions to the exclusionary rule. Camou the entered a conditional guilty plea and now appeals the denial of his motion to suppress.

The Ninth Circuit panel held that the search was not a lawful search incident to arrest given the one hour and twenty minute time delay between the arrest and the search combined with the number of intervening events between the arrest and the search. Furthermore, given the lack of evidence suggesting any imminent destruction of evidence or danger to the Border Patrol agents, there were no exigent circumstances justifying the warrantless search. The panel also declined to find cell phones to be "containers" within the vehicle exception given the qualitative difference between cell phones and anything precedent has been found to be a container in the vehicle context. In addition, the panel refused to allow the inevitable discovery exception to excuse a failure to obtain a search where police had probable cause yet made no attempts to obtain a warrant. Lastly, the good faith exception was found to be inapplicable here as it was the agent's own negligence that led to the violation of Camou's rights.

Given the reasoning above, the panel reversed the district court's denial of Camou's motion to suppress.

Extended Summary: In 2009, while attempting to smuggle an undocumented immigrant, Camou, a co-defendant and the undocumented immigrant were arrested and Border Patrol agents seized Camou's truck and a cell phone found in the cab of the truck. Camou was moved to the checkpoint's security office for booking and the cell phone was inventoried as "'seized property and evidence'." During the interview process co-defendant said that Camou received a phone call from a specific number prior to picking up the undocumented immigrant. Camou's cell phone rang several times during the interview, all from the number the co defendant had previously identified. Camou admitted that the cell phone belonged to him but then invoked his right to remain silent.

Later, approximately one hour and twenty minutes after Camou's initial arrest, an agent searched the cell phone's call logs, videos, and pictures in an attempt to find evidence of "'known smuggling organizations and information related to the case.'" The search, which the agent did not claim was necessary to prevent the destruction of evidence or for anyone's safety, revealed 30-40 pictures of child pornography. Four days later, based on the agent's findings, the United States Attorney's Office executed a federal search warrant for Camou's cell phone and found several hundred images of child pornography.

Camou was indicted for possession of child pornography and moved to suppress the child pornography images found on his cell phone. The district court denied the motion, reasoning that the images were found during a lawful search incident to arrest. The district court further reasoned that even if the search was unconstitutional, that the good faith and inevitable discovery exceptions to the exclusionary rule were satisfied. Camou then entered a conditional guilty plea to possession of child pornography and was sentenced to thirty-seven months in prison and five years of supervised release. Camou is still incarcerated and appeals the denial of his motion to suppress.

The Ninth Circuit panel reviewed de novo the district court's denial of Camou's motion to suppress as well as the application of the good faith and inevitable discovery exceptions to the exclusionary rule and reviewed the district court's factual findings for clear error.

The purpose behind the search incident to lawful arrest exception is to protect arresting officers and to prevent the destruction of evidence. As such, any such search must 1) be limited to the arrestee's person or areas within the arrestee's immediate control at the time of arrest, and 2) be spatially and temporally incident to the arrest. The Ninth Circuit interprets the second requirement to require the search to be more or less at the same time to the arrest and panel ruled that the search of the cell phone did not meet this requirement. Precedent established that searches can be found not to be incident to arrest due the time between the search and arrest and/or intervening events between the two.

Here, the time delay was longer than in either of the cited cases where searches were not sufficiently contemporaneous with arrest. In addition, there were numerous intervening events between the arrest and the search: 1) Camou was handcuffed; 2) Camou was moved from the checkpoint to the security offices; 3) Camou was processed; 4) the cell phone was moved from the truck to the security offices, processed, and moved into the interview rooms; 5) Camou was booked and interviewed; 6) the undocumented immigrant and the co-defendant were interviewed; and 7) agents interviewed co-defendant again and tried to interview Camou at which point he invoked his right to remain silent. Based on the passage of time and the number of intervening events, the panel held that the search of the phone was not contemporaneous with arrest and as such did not qualify as a search incident to arrest.

Regarding the government's exigency exception argument, the panel held that the government failed to prove exigent circumstances that required immediate police action. A recent Supreme Court case, Riley v. California, 134 S. Ct. 2473, 2493 (2014), held that " 'a warrant is generally required before . . . a search [of a cell phone], even when a cell phone is seized incident to arrest.'" This does not preclude "'other case specific exceptions [to] still justify a warrantless search of a particular phone.' Id. at 2494."

Here, however, there was no evidence to suggest that there was any " 'now or never situation' " that would cause such an exigency exception to apply. This is supported by the Border Patrol agent's belief that the call logs were not volatile and that searching Camou's phone was not necessary to prevent a loss of evidence. Even if the facts had supported a search of Camou's phone, the search's scope was overbroad by including photos and videos in addition to the contacts and call logs. As such, the panel held that the search of Camou's phone was not excused by the exigency exception here.

Addressing the vehicle exception argument, the panel held that cell phones are not containers for purposes of the vehicle exception. In Riley, the Supreme Court rejected the idea that cell phones be treated as "container[s]" as it would apply to the search incident to arrest exception. 134 S. Ct. 2473, 2491 (2014). The Riley Court also rejected analyzing cell phone searches under a vehicle search context due to the "'unbridled discretion'" it would give officers to search a person's private effects. Id. at 2492. Based on this extensive analysis, the panel extended he reasoning in Riley from the search incident to arrest exception to the vehicle exception." This is justified by the fact that cell phones are so different from anything that has been found to be a container in the vehicle context as well as having far broader privacy implications. Based on this reasoning, the panel held "cell phones are non-containers for purposes of the vehicle exception to the warrant requirement" and the search of Camou's phone was not justified under that exception.

Lastly the panel addressed the government's arguments that inevitable discovery and good faith exceptions to the exclusionary rule apply here. Inevitable discovery was not found to apply here since the evidence does not support that the government sought to search Camou's phone for evidence of alien smuggling given that the agents were informed the same day as Camou's arrest that prosecution was declined in the smuggling case. More importantly, it is impermissible to excuse a failure to obtain a search where police had probable cause yet made no attempts to obtain a warrant. Similarly, the good faith exception fails to apply here because at the time of the search the law required that a search incident to arrest be made contemporaneously to the arrest. Given that nothing indicates the well trained agent here could have believed that a search one hour and twenty minutes after the arrest was lawful, the panel held that the agent's personal negligence led to the violation of Camou's rights and as such the good faith exception would not apply.

For the reasons listed above, the Ninth Circuit panel reversed the district court's denial of Camou's motion to suppress.

Panel: Judges Pregerson, Fisher, and District Judge J.S. Gwin by designation

Date of Issued Opinion: December 11, 2014

Docket Number: 3:11-cr-05027-H-1

Decided: Reversed

Case Alert Author: Seth DuMouchel

Author of Opinion: Judge Pregerson

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 01/30/2015 05:30 PM     9th Circuit     Comments (0)  

  LaCross v. Knight Transportation, Inc. - Ninth Circuit
Headline: Ninth Circuit reversed the district court's remand order, holding that, unlike the labor law class action complaint in Ibarra, the class action complaint alleging labor law violations clearly defined the class to include only the truck drivers, all of whom allegedly should have been classified as employees rather than as independent contractors, thereby meeting the requisite $5 million amount in controversy for removal under CAFA.

Area of Law: Civil Procedure, Class Action

Issue Presented: Under CAFA, 28 U.S.C. § 1332(d), does a defendant meet its burden to prove the requisite $5 million amount in controversy by a preponderance of the evidence by extrapolating from quarterly fuel costs invoiced on the company's fuel cards provided to its drivers to estimate the amount over the four-year class period when the complaint describes the class to include all of the company's drivers?

Brief Summary: The district court erred in concluding that defendant relied on a flawed assumption that all its drivers worked the entire year and thus failed to meet its burden to prove by a preponderance of the evidence the requisite $5 million amount in controversy.

In Ibarra v. Manheim Investments, Inc., __F.3d__, No. 14-56779 (9th Cir. Jan. 8, 2015), filed simultaneously with the Ninth Circuit's opinion in LaCross, the Ninth Circuit panel held that, when the defendant relies upon a chain of reasoning that includes assumptions to satisfy its burden to prove that the amount in controversy exceeds $5 million, the chain of reasoning and underlying assumptions relied upon by a defendant to remove a case to federal court must be reasonable.

Applying the framework articulated in Ibarra, the Ninth Circuit panel held that, "unlike the complaint in Ibarra, which alleged a 'pattern and practice' of labor law violations but not universal violations, the complaint here clearly defined the class to include only the truck drivers, all of whom allegedly should have been classified as employees rather than as independent contractors."

Reversed and Remanded.

Extended Summary: The Ninth Circuit panel simultaneously issued its opinion in Ibarra v. Manheim Investments, Inc. addressing the evidence necessary for a defendant to prove the amount in controversy under CAFA to qualify for removal to federal court. When an amount in controversy is not facially apparent or is understated, a defendant may rely on a chain of reasoning and assumptions to satisfy its burden of proof that the amount in controversy exceeds $5 million provided the chain of reasoning and assumptions are reasonable.

The named plaintiffs were "Owner Operators" who performed work for Knight Transportation, Inc. and Knight Truck and Trailer Sales, LLC ("Knight"). The Plaintiffs filed a class action in California state court alleging labor law violations including misclassification as independent contractors.

Knight removed the case to federal court estimating the amount in controversy as at least $44 million based on potential liability for employee expenditures under California Labor Code § 2802. The district court granted Plaintiffs' motion to remand, concluding Knight failed to meet its burden of proof establishing the amount in controversy because all Knight's calculations relied on a flawed assumption that all drivers worked 50 weeks per year.

Preliminarily, the removing party must file a notice of removal including a "plausible allegation that the amount in controversy exceeds the jurisdictional threshold." When a defendant's assertion of the amount in controversy is challenged, the court decides on a preponderance of the evidence whether the amount in controversy requirement is satisfied. Under the holding in Ibarra, any chain of reasoning and underlying assumptions relied upon by a defendant to remove a case to federal court must be reasonable.

The Ninth Circuit panel analyzed Knight's method for calculating its potential liability for the driver's fuel cost. The costs were estimated by multiplying $2.3 million in quarterly invoiced fuel costs by 16 quarters for a total of $36.8 million.

Knight further extrapolated a more conservative estimate by creating a ratio, the numerator of which was its lowest number of drivers for the class period and the denominator of which was its greatest number of drivers and multiplying the ratio by the $2.3 million quarterly invoiced fuel cost ($2,369,628 x 116/207) and then multiplying the adjusted value by the 16 quarters for a total of $21 million in estimated fuel costs.

The panel held that the district court erred in concluding Knight's calculations relied on the assumption that the class worked for the whole year because the method used relied on actual fuel invoices rather than driver time.

The Ninth Circuit panel reversed the district court's judgment remanding the case to state court, concluding that sufficient evidence was presented by Knight to establish the amount in controversy by a preponderance of the evidence.

For the full opinion: http://cdn.ca9.uscourts.gov/da...15/01/08/14-56780.pdf

Panel: Stephen S. Trott, Consuelo M. Callahan, Circuit Judges and Mark W. Bennet, District Judge.

Date of Issued Opinion: January 8, 2015

Docket Number: 14-56780

Decided: Reversed and Remanded

Case Alert Author: Brandon Powell

Counsel: Richard H. Rahm (argued), James E. Hart, Carly Nese, and Thomas J. Whiteside, Littler Mendelson, P.C., San Francisco, California, for Defendants-Appellants. James M. Trush (argued), Trush Law Office, Costa Mesa, California; Ellen R. Serbin, Todd H. Harrison, and Brennan S. Kahn, Perona, Langer, Beck, Serbin, Mendoza &Harrison, APC, Long Beach, California, for Plaintiffs-Appellees.

Author of Opinion: Gould, Circuit Judge.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 01/30/2015 05:29 PM     1st Circuit     Comments (0)  

  Jose Ibarra v. Manheim Investments, Inc. - Ninth Circuit
Headline: Ninth Circuit holds that, where defendant seeks removal under the Class Action Fairness Act (CAFA) and the complaint does not state, or understates, the amount in controversy, the defendant can rely on reasonable assumptions to prove that the amount in controversy exceeds $5 million, but "cannot establish removal jurisdiction by mere speculation and conjecture, with unreasonable assumptions."

Area of Law: Civil Procedure, Class Action

Issue Presented: Under CAFA, 28 U.S.C. § 1332(d), does a defendant meet its burden of proof to establish an amount in controversy in excess of $5 million by using calculations based on the assumption that each employee was denied one meal break per five hour shift and one rest break per 3.5 hour shift where the complaint alleged, first, that the amount in controversy was less than $5 million and, second, that the defendant had a "pattern and practice" of denying breaks, but did not allege that this "pattern and practice" is universally followed every time the wage and hour violation could arise?

Brief Summary: A plaintiff's precertification stipulation that the plaintiff and the class will not seek damages over $5 million is not dispositive of the amount in controversy under CAFA.

When the amount in controversy is contested, the court must find whether the case meets the $5 million jurisdictional threshold by a preponderance of the evidence and, when a line of reasoning requires assumptions, those assumptions must be reasonable and "cannot be pulled from thin air."

Because the complaint only alleged a pattern of denying breaks, but did "not allege that [defendant] universally, on each and every shift, violates labor laws by not giving rest and meal breaks," defendant's line of reasoning, requiring an assumption that each and every employee was always denied at least one meal break per five hour shift and one rest break per 3.5 hour shift, was not reasonable.

However, because the district court failed to consider any evidence before remanding the case to state court, the Ninth Circuit panel reversed and remanded the case for further proceedings to consider the amount in controversy under the preponderance of the evidence standard. On remand, the defendant bears the burden to show that its estimated amount in controversy relied on reasonable assumptions.

Extended Summary: Jose Ibarra filed a putative class action against his former employer, Manheim, for wage and hour claims. The complaint alleged the aggregate claims of individual class members was less than $5 million.

The case was removed to federal district court twice and remanded back to state court twice. After the first remand, the United States Supreme Court decided Standard Fire Insurance Co. v. Knowles, holding that a "plaintiff's precertification stipulation that the plaintiff and the class will not seek damages over $5 million does not preclude a defendant's ability to remove a case under CAFA."

After the second remand, the Ninth Circuit decided Rodriguez v. AT&T Mobility Services, LLC, establishing the burden of proof for the amount in controversy as the preponderance of the evidence standard. On remand, the district court granted plaintiffs' renewed motion to remand to state court finding that that defendant "had not satisfied its burden of proving that the amount in controversy exceeded $5 million, because Mannheim did 'not provide a basis in the complaint or in evidence for [its] assumption that plaintiffs were never provided breaks.'"

On appeal of the remand order, the Ninth Circuit panel noted that, initially courts are to look to the complaint for the amount in controversy, although an affirmative allegation that damages do not exceed $5 million is not dispositive. The panel further observed that, "when the defendant's assertion of the amount in controversy is challenged by plaintiffs in a motion to remand, the Supreme Court has said [in Dart Basin Operating Co. v. Owens, No. 13-719, 2014 WL 7010692, at *6 (U.S. Dec. 15, 2014)] that both sides submit proof and the court then decides where the preponderance lies [and that] CAFA's requirements are to be tested by consideration of real evidence and the reality of what is at stake in the litigation, using reasonable assumptions underlying the defendant's theory of damages exposure."

Manheim's method of calculating the amount in controversy assumed that each class member was denied one meal break in every one of their five hour shifts and one rest break in every one of their 3.5 hour shifts, basing its violation-rate assumption on the allegations in the complaint that Manheim has a "pattern and practice of failing to pay their Non-Exempt employees for working off-the-clock," and that Manheim "hide[s] behind written policies that purport to forbid these unlawful labor practices while at the same time maintaining an institutionalized unwritten policy that mandates these unlawful practices."

The panel held that, when a damages assessment requires a chain of reasoning that includes assumptions, the assumptions must be reasonable. Manheim's alleged pattern and practice of denying breaks does not necessarily equate to always denying breaks"on each and every shift." Furthermore, the violation rate was not grounded in real evidence.

The panel vacated the district court's judgment and remanded the case for a determination on the preponderance of the evidence to determine the amount in controversy. On remand, "ecause the complaint does not allege that Manheim universally, on each and every shift, violates labor laws by not giving rest and meal breaks, Manheim bears the burden to show that its estimated amount in controversy relied on reasonable assumptions."

For the full opinion: http://cdn.ca9.uscourts.gov/da...15/01/08/14-56779.pdf

Panel: Susan P. Graber, Ronald M. Gould, and Consuelo M. Callahan, Circuit Judges.

Date of Issued Opinion: January 8, 2015

Docket Number: 14-56779

Decided: Reversed and Remanded

Case Alert Author: Brandon Powell

Counsel: Thomas R. Kaufman (argued), and Paul Berkowitz, Sheppard, Mullin, Richter & Hampton LLP, Los Angeles, California, for Defendants-Appellants. Raul Cadena (argued), Cadena Churchill, LLP, San Diego, California; Paul D. Jackson, Jackson Law, LLP, San Diego, California, for Plaintiff-Appellee.

Author of Opinion: Gould, Circuit Judge.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 01/30/2015 05:27 PM     9th Circuit     Comments (0)  

January 28, 2015
  Martin v. Hearst Corporation - Second Circuit
Headline: Second Circuit Affirms Dismissal of Defamation Claims Against Media Outlets that Published and Refused to Remove Reports of Petitioner's Arrest, Although Charges Were Later Nolled and the Arrest Erased Under Connecticut Criminal Records Erasure Statute.

Area of Law: Torts

Issue(s) Presented: Whether an individual who's arrest is erased under Connecticut's Criminal Records Erasure Statute may assert libel and related publication-related tort claims against media outlets that published contemporaneous news accounts of her arrest, on the ground that those accounts had become false or misleading.

Brief Summary: Plaintiff-appellant Martin was arrested in 2010 for various drug-related offenses. Three newspapers owned by defendant-appellee Hearst Corporation, and another media outlet, published accurate online reports of the arrest. More than one year after the published reports, the criminal case against Martin was nolled and her arrest warrant was erased pursuant to Connecticut's Criminal Records Erasure Statute. After the defendant-appellees refused her request to remove the stories from their website, Martin sued, asserting libel and other publication-related tort claims. The United States District Court for the District of Connecticut awarded summary judgment to the defendants on all claims and plaintiff appealed. The Second Circuit affirmed.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...8eefbc8a0898/1/hilite/

Extended Summary (if applicable): Plaintiff-appellant Lorraine Martin was arrested on August 20, 2010 and charged with various offenses related to the possession of narcotics and drug paraphernalia. Within the week, three newspapers owned by defendant-appellee Heart Corporation, as well as defendant-appellee News 12 Interactive LLC, accurately published articles online reporting Martin's arrest.

More than one year after the defendants published the reports, the State of Connecticut decided not to pursue its case against Martin. The charges against Martin were "nolled" under the statute and her arrest records were erased under Connecticut's Criminal Law Erasure Statute. That statute provides that "[a]ny person who shall have been the subject of such an erasure shall be deemed to have never been arrested." Thereafter, Martin requested that the defendants remove the articles reporting her arrest from their websites; the Defendants refused. The articles remain available online.

Martin brought suit in the United States District Court for the District of Connecticut asserting libel, placing another in a false light before the public, negligent infliction of emotional distress, and invasion of privacy by appropriation claims. Despite conceding that the report of her arrest were accurate when first published, Martin claimed that publishing the statements became false and defamatory once the charges against her were nolled. Reasoning that the truth of the reports of Martin's arrest remained the same, and the Erasure Statute did not change the historical fact that Martin was arrested, the District Court granted summary judgment for the defendants on all claims.

On appeal, the Second Circuit affirmed the District Court's grant of summary judgment for defendants. The court interpreted the Criminal Records Erasure Statute as providing to applicable parties, as a matter of "legal fiction," the legal status of someone who has never been arrested. The court concluded that, although this bars government and courts from relying on a defendant's erased record, and allows a defendant to swear under oath that she has never been arrested, it was not intended to provide a basis for defamation suits. Erasure, the court found, while effective in the context of the judicial and law enforcement systems, does not undo historical facts or convert facts into falsehoods. Additionally, the court found that the news organizations' failure to report an update to the Martin arrest could not constitute defamation by implication, because the news reports at issue did not imply any fact that was not true.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...eefbc8a0898/1/hilite/

Panel (if known): Judges Walker, Jacobs, Wesley

Argument Date: 08/18/2014

Date of Issued Opinion: 01/28/2015

Docket Number: 13-3315

Decided: Affirmed

Case Alert Author: Samantha Kopf

Counsel: Ryan O'Neill (Mark Sherman, on the brief), The Law Offices of Mark Sherman, LLC, Stamford, CT, for Plaintiff-Appellant; Jonathan R. Donnellan (Courtenay O'Connor, on the brief), Hearst Corporation, New York, NY, for Defendant-Appellee Hearst Corporation, David A. Schulz (Cameron Stracher, on the brief), Levin Sullivan Kock & Schulz, New York, NY, for Defendant-Appellee News 12 Interactive.

Author of Opinion: Judge Wesley

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 01/28/2015 06:58 PM     2nd Circuit     Comments (0)  

January 27, 2015
  Norman Shelton v. Bryan A. Bledsoe, et al. - Third Circuit
Headline: Third Circuit Holds Ascertainability is Not a Prerequisite for Rule 23(b)(2) Class Actions.

Area of Law: Class Action, Summary Judgment

Issues Presented: Whether ascertainability is a requirement for certification of a Rule 23(b)(2) class that seeks only injunctive and declaratory relief?
Brief Summary: Prisoner brought a class action for those housed in a special unit of the prison. The Third Circuit held that Federal Rule of Civil Procedure 23(b)(2) does not require ascertainability of the class. Further, an informal request for discovery in response to a motion for summary judgment is sufficient to amount to a response to that motion. Finally, the prisoner did not exhaust his Federal Tort Claims Act claim and thus the district court properly dismissed this count.

Extended Summary: Prisoner Shelton filed this class action for himself and other inmates that have been house in a Special Management Unit, "SMU." The SMU is for prisoners who are especially violent or who have a history of gang involvement while in prison. Prisoners in the SMU are housed with another inmate and are in their cells for 23 hours a day. An interview is conducted before going into the SMU to ensure inmates are not housed with those that could be hostile toward each other.

Shelton claimed that the defendants had a pattern, practice, or policy of housing inmates that are hostile toward each other in the same cell and that they do not intervene when the inevitable violence between inmates interrupts. Shelton advanced Eighth Amendment and Federal Tort Claims Act claims regarding an incident where he was housed in the SMU with an inmate, Carr, that he asserts told officers that he would attack Shelton if they were housed together. They were placed together in the SMU. The day after they were put together Carr attacked Shelton and the guards did not intervene.

Shelton sought compensatory relief only for himself and sought injunctive and declaratory relief for the rest of the class. The Third Circuit determined whether such a class must be ascertainable as a prerequisite to Rule 23(b)(2). The Court found that the nature of 23(b)(2) actions are more focused on the remedy sought than the identities of the individual class members. The Third Circuit thus held as a matter of first impression that ascertainability was not necessary for 23(b)(2) actions.
Second, the Court discussed the proposed class definition. The Third Circuit found that the district court erred by narrowing the definition of the proposed class and remanded it for a determination of whether the putative class meets the remaining Rule 23 requirements for class certification.

Third, the Court addressed whether more discovery was needed to decide a motion for summary judgment. The Third Circuit held that a formal motion was not required to request discovery under Rule 56. The Court found that the district court abused its discretion when it granted summary judgment without considering the declaration that Shelton filed seeking further discovery.

Finally, the Court held that regardless of the discovery, Shelton could not establish a claim for negligence because he did not exhaust his administrative remedies under the FTCA. Thus, the Court affirmed the district court's dismissal of the FTCA claims.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/124226p.pdf

Panel (if known): McKee, Chief Judge, Smith and Sloviter, Circuit Judges

Argument Date: September 11, 2013

Date of Issued Opinion: January 7, 2015

Docket Number: No. 12-4226

Decided: Reversed in part, Affirmed in part.

Case Alert Author: Antoinette Snodgrass

Counsel: Stephen D. Brown, Esq., Christine C. Levin, Esq., Jennifer L. Burdick, Esq., Francis J. Demody, Esq., and Sean P. McConnell, Esq., for Appellant. Michael J. Butler, Esq., for Appellee.

Author of Opinion: Chief Judge McKee

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 01/27/2015 11:30 AM     3rd Circuit     Comments (0)  

  Antonio Pearson v. Secretary Dept. of Corrections et al. - Third Circuit
Headline: Third Circuit Holds that § 1983 Actions are Tolled for Statute of Limitations Purposes where a Prisoner files an action through administrative proceedings under Pennsylvania's Prison Litigation Reform Act.

Area of Law: Section 1983 and Statute of Limitations

Issues Presented: Whether Pennsylvania's statute of limitations is tolled while a prisoner exhausts administrative remedies prior to filing a civil rights lawsuit as required by 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act ("PLRA"), or in the alternative, whether federal equitable tolling principles are applicable.

Brief Summary: A prisoner filed a § 1983 action where the underlying actions all occurred more than two years prior to the complaint, seemingly barring the action by Pennsylvania's two-year statute of limitations for civil actions. The Third Circuit held that because Pennsylvania's Prison Litigation Reform Act requires exhaustion of administrative remedies prior to the filing of a § 1983 complaint in federal court, the statute of limitations is tolled during this period.

Extended Summary: In addition to the case at bar, Pearson filed a state civil lawsuit and at least seven grievances during his prison sentence. He alleged that because of these complaints, Department of Corrections employees engaged in a two-year campaign of harassment against him. Pearson filed his § 1983 action on February 28, 2009 and defendants sought to dismiss the case based on Pennsylvania's two year statute of limitations because all events occurred prior to March 1, 2007. The magistrate judge found that only one claim could be considered timely, that Pearson had been removed from a prison work position because of the grievances he had filed. However, the magistrate judge found that there were no facts that allowed a plausible inference that the termination was caused by any of plaintiff's protected activity. The district court adopted the magistrate judge's report and recommendation.

Pearson objected to these findings and averred that the statute of limitations should have been tolled while he exhausted his administrative remedies pursuant to the PLRA. The magistrate issued a second report and recommendation that rejected this argument and found that Pearson made no showing that prison officials had prevented Pearson from completing the grievance process to run out the statute of limitations. Again, the district court adopted the report and recommendation.

The Third Circuit looked to its own non-precedential opinions, opinions of other circuits, and opinions of district courts within the Third Circuit. The panel held that there is no ambiguity in the PLRA and that it is a clear statutory prohibition that prevents prisoners from filing § 1983 actions until all administrative remedies are exhausted. Proceeding through PLRA administrative remedies thus tolls the statute of limitations for § 1983 actions. The case was remanded to the district court for findings on whether Pearson exhausted his administrative remedies.
The Third Circuit next found that for the only claim the district court found to be timely, the retaliatory discharge claim, all administrative remedies were exhausted and the claim should continue to discovery. Further, it was a plausible complaint because it could be considered a pattern of antagonism.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/131412p.pdf

Panel (if known): McKee, Chief Judge, Rendell and Sloviter, Circuit Judges

Argument Date: November 20, 2014

Date of Issued Opinion: January 7, 2015

Docket Number: No. 13-1412

Decided: Vacated and Remanded

Case Alert Author: Antoinette Snodgrass

Counsel: Jessica C. Collins, Esq., for Appellant. Kemal A. Mericili, Esq., for Appellee.

Author of Opinion: Judge Sloviter

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 01/27/2015 11:27 AM     3rd Circuit     Comments (0)  

  United States of America v. Ashokkumar Babaria - Third Circuit
Headline: Third Circuit rules a two-level upward adjustment for abuse of a position of trust is warranted when relating to Medicare and Medicaid.

Area of Law: Federal sentencing guidelines

Issues Presented: Whether a director of a medical company who provided kickbacks to physicians for referrals and took payments from Medicare and Medicaid is in a position of trust under the sentencing guidelines.

Brief Summary: Dr. Ashokkumar R. Babaria ("Babaria") was a licensed radiologist and the medical director and manager of Orange Community MRI, LLC ("Orange"), an authorized Medicare and Medicaid provider. In 2012, Babaria pled guilty to one count of making illegal payments in violation of a federal anti-kickback statute. At sentencing, Barbaria objected to a report which recommended that he receive a two-level adjustment for abuse of a position of trust pursuant to § 3B1.3 of the U.S. sentencing guidelines. The district court granted the adjustment. Babaria appealed on the grounds he neither occupied nor abused a position of public or private trust.
The Third Circuit Court of Appeals first determined Babaria did indeed occupy a position of trust vis-à-vis Medicare and Medicaid as a medical director and manager of Orange and an authorized provider. Since on behalf of Orange he certified compliance with the anti-kickback statute, the Third Circuit determined Babaria abused his position of trust by paying kickbacks and the upward adjustment was proper.


Significance (if any):

Extended Summary: Babaria was a licensed radiologist and the medical director and manager of Orange Community MRI, LLC. Orange was an authorized Medicare and Medicaid provider. In 2012, Babaria pled guilty to one count of making illegal payments, kickbacks, in violation of a federal anti-kickback statute. Babaria paid kickbacks to physicians for referrals, and then charged Medicare and/or Medicaid for procedures performed for qualifying patients. At sentencing, Barbaria objected to a report that recommended that he receive a two-level adjustment for abuse of a position of trust pursuant to § 3B1.3 of the U.S. sentencing guidelines. The district court granted the adjustment. Babaria appealed on the grounds he neither occupied nor abused a position of public or private trust.
The Third Circuit Court of Appeals first determined Babaria did indeed occupy a position of trust in a ruling that adopted reasoning of the Fourth and Eleventh Circuits. The Third Circuit concluded Babaria occupied a position of trust vis-à-vis Medicare and Medicaid as a medical director and manager of Orange and an authorized provider. Since, on behalf of Orange, he certified compliance with the anti-kickback statute, the Third Circuit determined Babaria abused his position of trust and that the district court did not err by granting the upward adjustment. The Court concluded by noting it may be relevant for district courts to consider status of licensing when dealing with activities related to Medicare and Medicaid.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/142694p.pdf.

Panel (if known): Smith, Hardiman, and Barry, Circuit Judges.

Argument Date: November 18, 2014

Argument Location: Philadelphia, PA

Date of Issued Opinion: December 31, 2014

Docket Number: No. 14-2694

Decided: Affirmed.

Case Alert Author: Ilya Gomelsky

Counsel: Joseph D. Mancano, Esq. for Appellant; Mark. E. Coyne, Esq. and Glenn J. Moramarco, Esq. for Appellee.

Author of Opinion: Barry, Circuit Judge

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 01/27/2015 11:24 AM     3rd Circuit     Comments (0)  

  Heffernan v. City of Paterson - Third Circuit
Headline: Third Circuit Finds Paterson Police Detective Can't Sue for Being Demoted for Political Activity

Area of Law: Constitutional Law

Issue Presented: Whether a public employee can be disciplined for perceived exercise of first amendment rights as opposed to actual exercise of such rights.

Brief Summary: In April 2006, Jeffery Heffernan, was a police officer in Paterson, New Jersey. He was observed obtaining a campaign sign for a candidate running against the incumbent mayor of Paterson, Jose Torres. He was actually getting the sign for his mother. Despite his explanations that he was not working in the campaign, that he was not politically involved, and that he couldn't even vote in the election because he didn't live in the city, Heffernan was subsequently demoted for being involved in political activities. Heffernan then sued the City in the District Court of New Jersey for unconstitutional retaliation for exercising his First Amendment rights. The District Judge granted summary judgment against Heffernan, which he appealed. The Third Circuit Court of Appeals affirmed the District Court's dismissal of the case. As the Court explained, Heffernan failed to produce any evidence that he was actually exercising his First Amendment rights, and claims of retaliation based only on the perceived exercise of those rights were foreclosed by existing Third Circuit precedent.

Extended Summary: In April 2006, Lawrence Spagnola, a former Paterson, New Jersey police chief, was running for mayor of Paterson against the incumbent, Jose Torres. Spagnola was a close friend of the appellant, Jeffery Heffernan. Despite personally hoping that Spagnola would win the election, Heffernan was unable to vote for Spagnola because he didn't live in Paterson, didn't work on Spagnola's campaign, and didn't consider himself politically involved with the campaign. On April 13, 2006, Heffernan's bedridden mother asked Heffernan to drive into town to pick up a large Spagnola campaign sign. Ever the dutiful son, Heffernan did as his mother asked, and brought the sign back to his mother's house, where another family member put it up in her yard. Another Patterson police officer, who was working a security detail for Mayor Torres, happened to see Heffernan's encounter with Spagnola's campaign office. Word got around, and the next day, Heffernan was confronted by a supervisor. Although Heffernan explained that he was not politically involved, he was demoted to a walking detail for overt involvement in a political election. In August 2006, Heffernan brought a 42 U.S.C. § 1983 action against the City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Administrator Michael Walker for (1) retaliatory demotion based on Heffernan's exercise of the right to freedom of speech, and (2) retaliatory demotion based on his exercise of the right to freedom of association.

The case followed a rather unusual course. In his initial trial, Heffernan won a $105,000 jury verdict. After the verdict, however, the trial judge in the case recused himself for conflict of interest and vacated the jury's decision. The case was then reassigned to a second judge, who granted the defendants summary judgment. In so doing, however, the judge only addressed Heffernan's free-speech claim but forgot to address the free-association claim. On appeal, the Third Circuit reversed the trial judge, and remanded the case for a full consideration of all claims. On remand, the case was assigned to yet another judge. This judge granted summary judgment to the defendants on both counts, explaining that Heffernan failed to produce evidence that he actually exercised his First Amendment rights, and that Heffernan was foreclosed from seeking compensation for retaliation based only on the perceived exercise of his rights. Once again, Heffernan appealed the decision to the Third Circuit.

On appeal, Heffernan first argued that he was entitled to relief because he actually did engage in speech or conduct protected under the First Amendment. The Third Circuit disagreed. With respect to his free speech claim, the Court found that the only element in dispute was whether the jury could find that Heffernan actually spoke about or acted in support of an issue of public concern. Heffernan argued that his actions had the effect of supporting Spagnola's campaign. The Third Circuit noted, however, that Heffernan had stated that he had no intention of conveying a particular message when he picked up the campaign sign and that he was just doing it for his mother. Accordingly, the Court held that a jury would have no room to find Heffernan intended to convey a political message when he picked up the sign.

With respect to his free-association claim, the Court focused on the second required element, which was whether the employee maintained an affiliation with a political party. The Third Circuit noted that Heffernan himself confirmed that regardless of what others may have perceived, he did not have any affiliation with the campaign other than the contact necessary for him to pick up the sign for his mother. Once again, the evidence was insufficient to show that he was actually affiliated with the campaign, meaning no jury could return a verdict in his favor.

Finally, Heffernan argued he was entitled to proceed to trial for his free-speech and free-association claims under a "perceived-support" theory. Under this theory, an employee could file suit if he or she were disciplined for political activity even if the alleged political activity didn't actually take place. The Third Circuit, however, explained that its own binding precedent did not allow such an argument to be made. A free-speech retaliation claim is actionable only where the adverse action at issue was prompted by an employee's actual, rather than perceived, exercise of constitutional rights. Accordingly, the Third Circuit affirmed the decision of the lower court to grant summary judgment in favor of the defendants.

For the full text of the opinion, see http://www2.ca3.uscourts.gov/opinarch/141610p.pdf.

Panel (if known): Vanaskie, Greenberg, and Cowen, Circuit Judges

Argument Date: December 12, 2014 (submitted on briefs)

Date of Issued Opinion: January 22, 2015

Docket Number: No. 14-1610

Decided: Affirmed.

Case Alert Author: Katie Cooper Davis

Counsel: Alexandra M. Antoniou, Esq. for the Appellant; Victor A. Afanador, Esq., Susana Cruz-Hodge, Esq., Albert C. Lisbona, Esq., Gary Potters, Esq., Anthony V. D'Elia, Esq., and Thomas P. Scrivo, Esq. for the Appellees.

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 01/27/2015 11:18 AM     3rd Circuit     Comments (0)  

January 22, 2015
  Barrows v. Burwell--Second Circuit
Headline: Second Circuit Vacates the Dismissal of Medicare Beneficiaries' Claim Regarding the Use of "Observation Status" in Hospital Admissions

Area of Law: Civil Procedure, Constitutional, Medicare

Issue(s) Presented: Whether Medicare Beneficiaries have a property interest in their hospital admission status under the Due Process Clause.

Brief Summary: Medicare beneficiaries filed a putative class action suit on behalf of themselves and other Medicare beneficiaries against the Secretary of Health and Human Services alleging that the Secretary's use of "observation status" deprives plaintiffs of Medicare Part A coverage to which they are entitled. Plaintiffs claim Medicare billing rules incentivize hospitals to admit patients under "observation status," which is covered by Medicare Part B, rather than "inpatient status," which is covered more comprehensively by Medicare Part A. Plaintiffs claim they were admitted to hospitals under "observation status" and as a result incurred hundreds of dollars in copays and thousands of dollars in post hospitalization nursing care bills. Plaintiffs claim these costs would have been covered under Medicare Part A to which they are entitled if they had been admitted as inpatients. The district court dismissed the complaint in its entirety and Plaintiffs appealed. The Second Circuit affirmed the dismissal of the Medicare Act claim, but vacated the dismissal of the Due Process Clause claim, remanding the case for limited discovery as to whether plaintiffs have a property interest in their hospital admission status.
The full text of the opinion may be found at http://www.ca2.uscourts.gov/de...ced1b/1/hilite/


Extended Summary: Plaintiffs bring this suit on behalf of themselves and Medicare beneficiaries. Plaintiffs claim they were admitted under observation status rather than as inpatients and as a result incurred thousands of dollars in health care costs. As inpatients, Medicare beneficiaries are entitled to Medicare Part A coverage. Medicare Part A is titled "Hospital Insurance Benefits for Aged and Disabled" and creates an entitlement to inpatient hospital services and post hospitalization extended care. Under Part A, beneficiaries pay a one-time deductible for the first sixty days in the hospital. As observation patients, Medicare beneficiaries are entitled to Part B coverage. Medicare Part B is titled "Supplementary Medical Insurance Benefits for Aged and Disabled" and covers visits to doctors and other outpatient treatments. Under Part B, patients owe a co-pay for each service received and post hospitalization nursing care is not covered.

Plaintiffs allege the Secretary's use of "observation" status deprives them of Medicare Part A coverage to which they are entitled. Plaintiffs claim that the use of observation status and the average length of stay for a patient admitted under observation status has increased dramatically in recent years. Plaintiffs attribute that increase to a Medicare billing rule, which states that "f a beneficiary is admitted but that admission is later found to be improper, the hospital must refund the Part A payment to Medicare but cannot rebill under Part B." Plaintiffs claim the rule incentivizes hospitals to admit patients under observation status because that ensures that the hospital will receive payment.

Plaintiffs' complaint pled nine causes of action including violations of the Medicare Act, the Administrative Procedure Act, the Freedom of Information Act, and the Due Process Clause. Plaintiffs sought a permanent injunction (1) prohibiting the Secretary to allow Medicare beneficiaries to be placed on observation status, (2) directing the Secretary to provide written notification to any Medicare beneficiary who is placed on observation status of the nature of the action and the consequences for coverage and the right to review the action, and (3) directing the Secretary to establish a procedure for administrative review of a decision to place a beneficiary on observation status. The district court dismissed the complaint in its entirety and Plaintiffs appealed two claims.

The issue on appeal is whether the Secretary's failure to provide expedited written notice and administrative review of Medicare beneficiaries' placement into "observation status" violates the Medicare Act and the Due Process Clause. The Second Circuit affirmed the dismissal of the Medicare Act claim holding, first, that Plaintiffs lack standing to challenge the adequacy of the notice they received and, second, nothing in the Act entitles Plaintiffs to the process changes they seek. The Circuit held the district court erroneously relied on the Secretary's assertion that the decision to place a patient into "observation" or "inpatient" status is a complex medical decision left to the discretion of the doctor, rather than accepting Plaintiffs' assertion that, in practice, the decision is based on fixed Medicare criteria, and not left to the discretion of doctors. The impermissible finding of fact led the court to conclude that Plaintiffs lacked a property interest in their hospital admission status. This determination was the sole ground for dismissing the Due Process claim. The Second Circuit remanded the case for limited discovery on the issue of whether Plaintiffs possess a property interest in their hospital admission status.

Panel (if known): Circuit Judges Winter, Walker, and Cabranes

Argument Date: 10/23/2014

Date of Issued Opinion: 01/22/2015

Docket Number: No. 13‐4179‐cv

Decided:
Affirmed in part and vacated in part.

Case Alert Author
: Joan O'Connor Archer

Counsel: Alice Bers (Gill Deford, Center for Medicare Advocacy, Inc., Willimantic, CT; Anna Rich, National Senior Citizens Law Center, Oakland, CA, on the brief), Center for Medicare Advocacy, Inc., Willimantic, CT, for Plaintiffs‐Appellants.

Jeffery A. Clair (Stuart F. Delery, Assistant Attorney General, Adam C. Jed, Michael S. Raab, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC; Deirdre M. Daly, United States Attorney for the District of Connecticut, on the brief), United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendant‐Appellee.

Mark G. Arnold, Husch Blackwell LLP, Clayton, MO, for Amicus Curiae American Health Care Association.
Edith M. Kalls, Whatley Kallas, LLP, New York, NY, for Amici Curiae American Medical Association, et al.
Catherine E. Stetson, Hogan Lovells US LLP, Washington, DC, for Amicus Curiae American Hospital Association.

Author of Opinion: Judge Cabranes

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 01/22/2015 05:57 PM     2nd Circuit     Comments (0)  

January 18, 2015
  Warner v. Gross- Tenth Circuit
Case Name: Warner v. Gross -- Tenth Circuit

Headline: Tenth Circuit Rules Oklahoma Death Penalty Procedures Not Cruel and Unusual Punishment

Areas of Law: Constitutional Law

Issue Presented:

Is the use of midazolam as part of a three-drug lethal injection procedure violative of the Eighth Amendment's ban on cruel and unusual punishment?

Brief Summary:

The plaintiffs filed a Section 1983 lawsuit challenging the constitutionality of Oklahoma's lethal injection procedures. Plaintiffs sought a preliminary injunction to stay their executions until the district court was able to issue a ruling on the merits of their claims. The district court denied the injunction, and plaintiffs appealed. The Tenth Circuit affirmed the district court's ruling, stating that the plaintiffs were unable to show a likelihood of success on the merits of their claims sufficient for the court to issue a preliminary injunction.

Extended Summary:

Plaintiffs Charles Warner, Richard Glossip, John Grant, and Benjamin Cole are Oklahoma state prisoners that were convicted of first-degree murder and sentenced to death. Plaintiffs filed a 42 U.S.C. § 1983 lawsuit challenging Oklahoma's lethal injection procedures as part of a group of twenty-one inmates. The plaintiffs sought a preliminary injunction to stop the State of Oklahoma from carrying out their executions pending a ruling from the district court on the merits of their claims. After the district court denied their request for preliminary injunction, the plaintiffs appealed. The Tenth Circuit affirmed the ruling of the district court, holding that plaintiffs had not demonstrated a likelihood of success on the merits of their claims.

The majority began by stating the factual basis for the plaintiffs' murder convictions. Warner was convicted of the first degree rape and first degree murder of the eleven-month-old daughter of his girlfriend. Glossip was convicted of first degree malice murder for hiring a coworker to kill the owner of the hotel where he worked. Grant was convicted of first degree murder for stabbing a food service supervisor with a shank at the correctional facility where he was incarcerated. Cole was convicted of first-degree murder for causing the death of his nine-month-old daughter.

The State of Oklahoma has scheduled execution dates for each of the plaintiffs over the course of the next few months (Plaintiff Warner was executed on January 15, 2015). All of the plaintiffs have exhausted their state and federal remedies.

The State of Oklahoma used to use three drugs for its lethal injection procedure, including sodium thiopental, pancuronium bromide, and potassium chloride. Sodium thiopental was used to induce unconsciousness, panucronium bromide was used as a paralyzing agent, and potassium chloride was used to induce cardiac arrest. However, in 2010, the State of Oklahoma had been unable to obtain sodium thiopental for use in its executions, and has since implemented the use of midazolam hydrochloride to render an inmate unconscious for the lethal injection procedure.

The first inmate to be executed using midazolam was Clayton Lockett on April 29, 2014. Although Lockett's execution was successful, the execution team ran into a variety of issues when attempting to complete the execution procedure. In addition to a number of errors regarding the IV access, Lockett appeared to regain consciousness during the administration of the potassium chloride and began to move and speak during the procedure.

After discovering that the IV had not properly entered Lockett's blood stream, and noting that there were no viable veins left in Mr. Lockett's body to administer the drugs through, the execution team stopped the procedure. Ten minutes later, Mr. Lockett was pronounced dead. An autopsy revealed later that the amount of midazolam in Mr. Lockett's body should have been more than enough to render an individual unconscious.

After the complications surrounding Mr. Lockett's execution, the State of Oklahoma provided for alternative execution procedures designed to prevent similar situations from happening in future executions. The new procedures, in particular require primary and backup IV catheters, and allow for postponement of an execution if the execution team encounters trouble regarding the establishment of an IV line within one hour. The new procedures also allow for four different drug combinations for the lethal injection process: (1) 5,000 milligrams of pentobarbital; (2) 5,000 milligrams of sodium pentothal; (3) 500 milligrams of midazolam and 500 milligrams of hydromorphone or (4) 100 milligrams of vecoronium bromide, and 240 milliequivalents of potassium chloride. Officials must notify inmates of the method to be used in their execution in writing, ten days before the scheduled execution. The plaintiffs have been notified that the fourth alternative has been selected for their executions.

Plaintiffs alleged eight counts in their Section 1983 suit, two of which are at issue in this appeal. In Count 2, plaintiffs allege that the use of midazolam in the lethal injection protocol violates the Eighth Amendment, because the "ceiling effect" and risk of paradoxical reactions make it an unsuitable anesthetic, thus exposing inmates to the risk of pain, suffering, and lingering death. Further, plaintiffs allege the risk that the drug will be negligently administered. In Count 7, the plaintiffs allege that the changes in the drug combinations amount to biological experimentation on unwilling human subjects.

The Tenth Circuit started its analysis by stating that the standard of review for the denial of a preliminary injunction is abuse of discretion. It also noted that a preliminary injunction is a drastic remedy, and explained that a plaintiff must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm without the injunction, that the "balance of equities tips in his favor," and that the injunction is in the public interest in order to succeed. Winter v. Natural Res. Def. Council., 555 U.S. 7, 20 (2008).
The court then stated the rules on which it relies in addressing constitutional challenges to State execution methods. First, that capital punishment in and of itself is not cruel and unusual punishment under Baze v. Rees, 533 U.S. 35, 47 (2008). Next the court noted that the Supreme Court has never ruled that a State's execution procedure is cruel and unusual punishment. Id. at 48. Finally, the Supreme Court has explained that the risk of some pain is inherent in any method of execution. Id. at 47.

The court explained that subjecting individuals to a risk of future harm might qualify as cruel and unusual punishment. Baze, 533 U.S. at 49. The harm must be sure or very likely to cause needless suffering and imminent danger. Id. at 49-50. It then reviewed the district court's analysis of plaintiff's claims regarding midazolam. The district court found that midazolam, in the dosage recommended by the lethal injection protocol, was highly likely to render the individual unconscious and to keep him unconscious during the administration of the second and third drugs. The district court made findings of fact after hearing the testimony of the defendant's expert witnesses that 500 milligrams of midazolam can paralyze the brain by shutting down respiration and making the individual unaware of pain. It also found that there is only a "speculative" risk that midazolam could cause a paradoxical reaction. Finally, with respect to the negligent administration claim, the district court concluded that the revised lethal injection protocol is facially constitutional.

Next, the court recounted the district court's findings regarding sodium thiopental. Plaintiffs stated that using sodium thiopental as a single-drug procedure would be possible. The district court noted that the defendants showed that sodium thiopental and pentobarbital are not available to the state for use in lethal injection procedures.

The court then addressed the plaintiffs' allegations in Count 7. The district court noted that successful executions with midazolam in a three-drug combination has occurred 12 times in the United States. Thus, plaintiffs' claim that the lethal injection protocol involves human experimentation fails. Further, the district court stated that the plaintiffs failed to establish that Oklahoma's lethal injection protocol involves a risk of severe pain that is substantial compared to available alternatives.

The plaintiffs argued that the district court misapplied Baze. Plaintiffs stated that they did not need to provide an alternative remedy to succeed under Baze; that the grounds asserted in this case were not similar to Baze; that the district court erred in finding that the potential risk was cured by the three factors built in to the revised lethal injection protocol; and that the court did not consider evolving standards of decency. The court noted that the difference in Baze is that the petitioners agreed that the drugs used in their executions would result in a humane death if properly administered.

The court responded to plaintiffs' assertion that the requirement that proof of known and available alternatives is irrelevant when challenging the characteristics of a drug used in lethal injection by stating that it had already decided the opposite in Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010), where the plaintiff challenged the use of pentobarbital as a replacement for sodium thiopental.

The court noted that they were bound by Pavatt, but that even if they were not, the plaintiffs had failed to establish that the use of midazolam in a lethal injection procedure caused a risk of severe pain. Additionally, the court disagreed with plaintiffs' assertion that the principles from Baze do not apply to the present case. The court also found no error with the district court's reliance on the three factors in the revised lethal injection protocol. Such a finding, it held, was not contrary to Baze.

Next, the court addressed the plaintiffs' "evolving standards of decency" argument. Plaintiffs stated that Florida was the only other state that uses a three-drug procedure using midazolam, which makes the revised lethal injection protocol "objectively intolerable." The court responded by stating that this was not a requirement from Baze, and that if it were, no state would ever be able to revise its execution protocol.

The plaintiffs also challenged the district court's reliance on Dr. Evans, an expert witness provided by the defendants, stating that the findings based on his testimony were clearly erroneous. The majority found no issue with the district court's reliance on Dr. Evans' testimony or the gatekeeping procedure in which it engaged in allowing him to testify as an expert witness.

Finally, the court rejected the plaintiffs' argument that the district court erred in analyzing count 7 by using the risk-analysis test in Baze as opposed to the "evolving standards of decency" analysis. The court stated that it rejected the same argument earlier, and stated that it rejected the plaintiffs' argument.

Thus, because the plaintiffs did not demonstrate to the panel a likelihood of success on the merits, the decision of the district court was affirmed. The court found it unnecessary to engage in an analysis of the other factors needed to obtain a preliminary injunction.

The plaintiffs also made an emergency motion for a stay of execution pending appeal. That motion was denied because the argument for the stay of execution was the same as those for the preliminary injunction.


To read the full opinion, please visit:


http://www.ca10.uscourts.gov/opinions/14/14-6244.pdf

Panel: Briscoe, Gorsuch, Matheson

Date of Issued Opinion: January 12. 2015

Docket Number: No. 14-6244

Decided: The holding of the district court was affirmed.

Counsel:
Patti Palmer Ghezzi and Randy A. Bauman, Assistant Federal Public Defenders, Western District of Oklahoma, Oklahoma City, Oklahoma, and Mark Henricksen and Lanita Henricksen, Henricksen & Henricksen, Oklahoma City, Oklahoma, and Dale A. Baich and Robin C. Konrad, Assistant Federal Public Defenders, Phoenix, Arizona, for Plaintiffs-Appellants.

John D. Hadden, Jeb E. Joseph, and Aaron J. Stewart, Assistant Attorneys General, Oklahoma Attorney General's Office, Oklahoma City, Oklahoma, for Defendants-Appellees.

Author: Briscoe

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 01/18/2015 06:09 PM     10th Circuit     Comments (0)  

January 14, 2015
  United States v. Briley - Fourth Circuit
Headline: Introduction of Subsequent Bad Act Was "Harmless"

Area of Law: Evidence

Issues Presented: Whether assault is required element to prove the "physical contact" provision of 8 U.S.C. § 111; and whether evidence of subsequent bad act required reversal.

Brief Summary: On January 12, 2012, two plainclothes police officers were patrolling Dangerfield National Park when they observed Defendant Jay Briley and another man in a car preparing to engage in sexual relations. The officers, along with two other Park Police Officers asked the men to exit the vehicle. Briley refused. The police were forced to physically remove Briley from the car, which resulted in significant injuries to the officers, including for one a damaged pancreas and removal of a gallbladder. In March of 2012, Briley was arrested again for the same crime in the same park, but this time without resistance.

In connection with the January incident, the district court convicted Briley of four counts, including assault and disorderly conduct. Briley appealed. The statute provides for enhanced punishment if there is physical contact with the victim. The U.S. Court of Appeals for the Fourth Circuit held that equating the "physical contact" provision with an assault requirement would stray from the congressional intent of protecting police officers and would render five out of the six words within the statute inoperative.

On appeal, Briley also complained about the admission of certain prior bad acts evidence. In particular, at the trial, evidence of Briley's March arrest was introduced. The Fourth Circuit decided that introduction of evidence of this subsequent bad act was improper; but, the court further concluded that its admission was harmless. The court felt that the March incident did not fit into the 404(b) exceptions for "intent" or "plan" because the March incident did not involve an assault. The court also found that the evidence was unnecessary because the State had several officers testify to the defendant's actions in January. Regardless, the Fourth Circuit affirmed the holding of the lower court and found that even though the 404(b) evidence should have been excluded, the other evidence against the defendant was substantial enough to render the admission of the improper evidence a harmless error.

To read the full opinion, please click here.

Panel: WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

Argument Date: 09/19/2014

Date of Issued Opinion:
10/22/2014

Docket Number:
Case No. 13-4831

Case Alert Author: Michele Hayes, Univ. of Maryland Carey School of Law

Counsel: Cara Viglucci Lopez, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. David Sang Hak Lee, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia; Gordon D. Todd, Sean R. Dickson, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Author of Opinion: Judge Wilkinson

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 01/14/2015 at 01:59 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 01/14/2015 01:51 PM     4th Circuit     Comments (0)  

  Gestamp South Carolina LLC v. NLRB - Fourth Circuit
Headline: Gestamp Gone: NLRB Fails to Establish Prima Facie Case of Unfair Labor Practices for Discharge Claims but Succeeds with Threat Claim

Area of Law: Administrative Law, Labor Law

Issues Presented: Whether Gestamp South Carolina LLC committed unfair labor practices by (1) suspending and discharging two employees due to their unionization efforts ("the discharge claims") and (2) warning an employee he would be fired if a supervisor found out he was trying to unionize the facility ("the threat claim").

Brief Summary:
As a preliminary matter, the United States Court of Appeals for the Fourth Circuit had to determine whether the recess appointment of National Labor Relations Board ("NLRB") Member Craig Becker deprived the NLRB of a valid quorum to act when it initially issued its order in this matter. Board Member Becker was appointed during a two-week intra-session recess exceeding two weeks. After his appointment, Becker participated in resolution of the instant matter, which was resolved unfavorably to Gestamp. The Fourth Circuit granted Gestamp's petition for review, denied the NLRB's cross-application for enforcement, vacated the NLRB's decision, and remanded the case for further proceedings; based on the determination that Board Member Craig Becker deprived the NLRB of a valid quorum to act when it originally enacted the order.

Thereafter, the Supreme Court granted the NLRB's petition for certiorari, vacated the Fourth Circuit's judgment, and remanded the case for further consideration in light of the Court's decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).

On remand, the Fourth Circuit held that Becker had been validly appointed to the NLRB at the time the agency issued its order in this case. Relying on NLRB v. Noel Canning, the Fourth Circuit found it was clear that the Recess Appointments Clause applied to both inter-session and intra-session recesses of substantial length. Recesses more than three days but less than ten days long were presumptively too short to fall within the Clause. However, Board Member Becker's appointment in an intra-session recess exceeding two weeks removed any doubt about the validity of his appointment. The Fourth Circuit then considered the merits of the case.

Two employees of Gestamp, a plant that manufactured metal body parts for BMW vehicles, were terminated from their respective positions after contacting the United Steelworkers ("the Union") regarding the possible organization of the facility's hourly employees. Before being terminated, one employee was warned by a supervisor that if the general manager discovered the unionization efforts, he would be "gone." The other employee was terminated after his supervisor noticed a 38-minute discrepancy on his employee-submitted electronic timesheets. Both terminations were made pursuant to the employee handbook, which provided that "misleading or false statements...made during an interview" or "[f]alse..entries...in any books or records of the Company" could result in Gestamp withdrawing any employment offer or in termination.

The NLRB filed an unfair labor practices complaint against Gestamp. Following the hearing, the ALJ found Gestamp committed the alleged violations. With regard to the discharge claims, the ALJ concluded that both employees participated in a protected activity and that knowledge of the union activity could be imputed to Gestamp by virtue of its supervisors' awareness of their participation. The ALJ also found that the warning an employee would be "gone" if it was known he was participating in unionization efforts constituted a threat. On appeal, a three-member panel of the NLRB affirmed the ALJ's decision and adopted the order. Gestamp petitioned the Fourth Circuit for review of the NLRB order and the NLRB cross-petitioned for enforcement of the order.

The Fourth Circuit concluded that the General Counsel failed to establish a prima facie case as to the discharge claims. The court concluded that the ALJ never found evidence that the officials making the discharge decisions were aware of the employees' union activity, but rather only imputed the supervisor's knowledge to Gestamp at large. With regard to the threat claim, the Fourth Circuit affirmed the ALJ's holding, as it is proper to impute liability to an employer for statements of a supervisor.

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

Panel: Chief Judge Traxler; Judges Keenan and Harwell.

Date of Issued Opinion: 10/8/14

Docket Number: 11-236

Decided: Petition for review granted in part and denied in part; cross-application for enforcement granted in part and denied in part.

Case Alert Author: Alexandra A. Stulpin, Univ. of Maryland Carey School of Law

Counsel:
John J. Coleman, III, Marcel L. Debruge, BURR & FORMAN LLP, Birmingham, Alabama, for Gestamp South Carolina, L.L.C. Stuart F. Delery, Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, Douglas N. Letter, Scott R. McIntosh, Melissa N. Patterson, Benjamin M. Shultz, Dara S. Smith, Attorneys, Appellate Staff, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Usha Dheenan, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.

Author of Opinion: Chief Judge Traxler

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 01/14/2015 12:51 PM     4th Circuit     Comments (0)  

  Yang v. Holder - Fourth Circuit
Headline: Adverse Credibility Finding Does Not Equal Fraud or Willful Misrepresentation

Areas of Law: Immigration

Issue Presented: Whether the BIA erred in affirming the IJ's denial of petitioner's various applications for relief from deportation.

Brief Summary: Xing Yang Yang, a Chinese native, entered the United States in 1993 without inspection but applied for asylum and withholding of removal shortly after his arrival. Subsequently, the Immigration and Naturalization Service (INS) initiated removal proceedings against him. Lin Yang, Yang's mother and a lawful permanent resident, petitioned for an immigration visa on Yang's behalf, and Yang then filed for adjustment of his status under 8 U.S.C. § 1255. The petitions together qualified Yang for adjustment of his status to that of a lawful permanent resident. While his adjustment of status was pending, Yang filed an additional application for relief seeking asylum, withholding of removal, and protection under the Convention Against Torture. At Yang's evidentiary hearing, the immigration judge ("IJ") disposed of his adjustment application because an immigration visa was not available, and disposed of his application for relief after making an adverse credibility ruling based on testimonial inconsistencies.

Yang appealed to the Board of Immigration Appeals ("BIA"), but the BIA remanded Yang's case because his mother's petition had become effective. Before his merits hearing on the adjustment of status application, the IJ strongly encouraged Yang to file an application for a waiver (under § 1182(a)(6)(C)(i)), which would allow Yang to overcome a bar to undocumented persons who seek to procure an immigration benefit by fraud or by willfully misrepresenting a material fact if the individual shows that deportation would cause sufficient hardship to a qualifying relative. After Yang's testimony as the sole witness, the IJ denied his adjustment and waiver applications The IJ found that Yang was not subject to admission due to the initial IJ's adverse credibility ruling and found that Yang failed to show a qualifying relative would suffer extreme hardship. The BIA affirmed the IJ's decision.

The U.S. Court of Appeals for the Fourth Circuit granted Yang's petition for review of the BIA's decision. The Fourth Circuit held the second IJ utilized an erroneous legal standard in rendering its fraudulent or willful misrepresentation ruling because the ruling was predicated solely on the initial IJ's credibility ruling. Concluding that a negative credibility finding alone does not necessarily lead to a fraud or willful misrepresentation finding, the Fourth Circuit vacated and remanded the case to the BIA for further proceedings as appropriate.

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

Panel:
Senior Judge Davis, and Judges King and Motz

Argument Date:
09/16/14

Date of Issued Opinion: 10/29/14 (amended 11/05/2014)

Docket Number: No. 13-1682

Decided: Vacated and remanded by published opinion

Case Alert Author:
Emily Bolyard, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Joshua E. Bardavid, BARDAVID LAW, New York, New York, for Petitioner. Kerry Ann Monaco, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Eric Y. Zheng, New York, New York, for Petitioner. Stuart F. Delery, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion:
Judge King

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 01/14/2015 11:01 AM     4th Circuit     Comments (0)  

  United States v. Pineda - Fourth Circuit
Headline: Probation Officer's Report on Hearsay Statement Justifies Sentence Enhancements for Drug and Gun Transactions

Area of Law: Criminal Law, Sentencing

Issues Presented: Whether the district court erred when it: 1) applied a four-level sentencing enhancement based on the defendant's trafficking of arms during a transaction he was not convicted for at trial; and 2) applied a two-level sentencing enhancement for committing an offense involving 3 or 4 more firearms. Whether the evidence was sufficient to support Pineda's conviction for possession of a firearm in furtherance a drug trafficking crime.

Brief Summary: A Confidential Informant ("CI") purchased a stolen assault rifle, a handgun, and cocaine in two separate transactions with Jose Pineda. Pineda was subsequently convicted on two separate counts of cocaine distribution and possession of a firearm in furtherance of drug distribution. At sentencing, the district court applied sentence enhancements based upon information contained in a probation officer's pre-sentence report. The report focused on a hearsay statement from a witness involved in the first gun sale. This witness alleged that a prior drug and gun transaction occurred between the CI and Pineda. Pineda appealed the judgment on the basis of double counting during sentencing; alleging that because he only sold one firearm at a time, it did not amount to firearms trafficking.
Specifically, Pineda challenged: 1) the sufficiency of the evidence supporting his conviction for possession of a firearm in furtherance of the first transaction; 2) the district court's application of sentence enhancements based upon hearsay evidence; 3) the enhancement of his sentence for committing an offense involving three or more firearms; and 4) the enhancement of his sentence for firearms trafficking.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's ruling. The court concluded that any reasonable trier of fact could determine there was sufficient evidence for a conviction and that the district court could consider the witness' hearsay statement as relevant information, so long as it was reliable. The court further concluded that the prior firearm transaction was sufficiently relevant for sentence enhancement purposes because it was conduct similar to the other transactions. Furthermore, because the enhancements punished different types of conduct, they did not amount to double-counting. The court finally determined that Pineda's multiple transactions each involving a single firearm were sufficient.

To read the full opinion, please click here.

Panel: Judges Niemeyer, Wynn, and Floyd

Date of Issued Opinion: 10/29/2014

Docket Number: No. 13-4555

Decided: Affirmed

Case Alert Author: Katherine C. Parris, Univ. of Maryland Carey School of Law

Counsel: Terry F. Rose, Smithfield, 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.

Author of Opinion: Judge Niemeyer

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 01/14/2015 10:55 AM     4th Circuit     Comments (0)  

  United States v. Spinks - Fourth Circuit
Headline: What a Difference a Motion Makes: Requests to Reduce Mandatory Minimum Sentences Based on Factors Other than Assistance to Prosecution Lead to Conflicting Results under 18 U.S.C. § 3553(e) and FRCP 35(b).

Area of Law: Criminal Law, Sentencing

Issue Presented: Whether factors, other than substantial assistance to the prosecution, can be considered when reducing a sentence below the mandatory minimum under 18 U.S.C § 3553(e).

Brief Summary: Quinton Michael Spinks was sentenced to a 240-month mandatory minimum sentence for conspiracy to distribute cocaine and cocaine base. The government filed a motion under 18 U.S.C. § 3553(e) to reduce Spinks' sentence by thirty percent because Spinks provided substantial assistance in the prosecution of a codefendant. The court granted the motion and imposed a 168-month sentence. For reasons unrelated to the government's § 3553(e) motion, Spinks was later re-sentenced following habeas review to 120 months. At re-sentencing, the Government renewed its original § 3553(e) motion, but Spinks requested an additional reduction based on his rehabilitation. The district court granted the Government's motion, reducing Spinks' sentence to 84 months, but denied Spinks' request. On appeal, Spinks argued that he was eligible for further reduction because the decisions in Pepper v. United States (U.S.) and United States v. Davis (4th Cir.) permitted consideration of other factors.

The U.S. Court of Appeals for the Fourth Circuit found that Spinks was not eligible for a reduction that considered factors other than his assistance to the government. The court based this conclusion on its decision in United States v. Hood and the plain language of § 3553(e), which expressly limits the court's consideration to substantial assistance. According to the court, Davis did not apply because that case involved a motion for sentence reduction under FRCP 35(b), a broader rule that allows for consideration of other factors. The court also found that Pepper did not apply because the defendant in that case requested variance from the U.S. Sentencing Guidelines, rather than departure from a mandatory minimum.

Judge Davis concurred in the judgment but disagreed with the majority's reasoning, arguing that § 3553(e) and FRCP 35(b) should be treated the same. Judge Davis relied on the comments under FRCP 35(b), which expressly stated that the deletion of language from FRCP 35(b) in 2002 was intended to be stylistic only. He also cited to the First and Sixth Circuits, which have relied on FRCP 35(b)'s comments to read § 3553(e) and FRCP 35(b) as being limited in the same manner.

To read the full opinion, please click here.

Panel: Judges Motz and King; Senior Judge Davis

Argument Date: 09/16/2014

Date of Issued Opinion: 10/28/2014

Docket Number: No. 13-4771

Decided: Affirmed

Case Alert Author: Jamie Lee, Univ. of Maryland Carey School of Law

Counsel: John Arthur Duberstein, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Harry L. Hobgood, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Author of Opinion: Judge Motz; Senior Judge Davis, concurring.

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 01/14/2015 10:49 AM     4th Circuit     Comments (0)  

  Duke v. North Carolina - Fourth Circuit
Headline: Fourth Circuit Issues Ruling on North Carolina's Controversial Voting Reforms

Area of Law: Voting Rights

Issue Presented: Whether the district court abused its discretion by denying a preliminary injunction with respect to seven provisions of North Carolina's voting reform bill.

Brief Summary: After the Supreme Court's decision in Shelby County v. Holder, North Carolina passed a bill to reform the state's voting procedures. Several lawsuits were filed seeking a preliminary injunction to prevent the state from implementing these provisions before the upcoming 2014 election. The lawsuits were eventually joined into a single action. The district court denied the request for an injunction as to all seven provisions. On appeal, the United States Court of Appeals for the Fourth Circuit held the district court was correct on five of the seven provisions but "got the law plainly wrong" with respect to the same day voter registration and out-of-precinct voting provisions. The Fourth Circuit, with Judge Motz in dissent, remanded with instructions to grant a preliminary injunction for those two provisions.

Full Summary: After the Supreme Court's decision in Shelby County v. Holder, the North Carolina legislature passed House Bill 589, which was signed into law. House Bill 589 is an electoral reform bill which contains seven key provisions. It provides for a soft roll out of stricter voter identification laws, eliminates same day voter registration, prohibits out-of-precinct vote counting, reduces early voting days, expands the number of allowable observers and voter challenges, eliminates a precinct's discretion to keep polls open an hour longer, and eliminates the pre-registration of 16- and 17-year-olds. After the bill was passed, three lawsuits were filed, alleging violations of Section 2 of the Voting Rights Act. The lawsuits asked for a preliminary injunction to stop the provisions from being used prior to the 2014 elections. The district court denied the injunctions, and the plaintiffs appealed.

In order for a preliminary injunction to be granted, the plaintiffs must show they are likely to succeed at trial; will suffer irreparable harm; the balance of hardships favor the plaintiffs; and the injunction is in the public interest. The United States Court of Appeals for the Fourth Circuit found the plaintiffs failed to meet their burden on five claims. As to the question of early voting, the court found it would create a greater hardship on the state that outweighed the plaintiffs' hardship. The court also found the plaintiffs could not show irreparable harm on the issues of the pre-registration of 16- and 17-year-olds, and extended hours at the polls. The court found the district court did not clearly err in its determination that extra observers and voter challenges might abuse their statutory powers. While the Fourth Circuit was skeptical that stricter voter identification requirements wouldn't cause voters to be rejected at the polls, it did not find clear error in the district court's determination that the harm alleged was merely speculative.

Nonetheless, the Fourth Circuit found the district court misunderstood and misapplied the law with regard to the same date voter registration provision and the out-of-precinct vote counting provision. The court joined the Sixth Circuit in enunciating a two-element test for a violation of Section 2. Concluding that under the proper test the plaintiffs were likely to succeed on the merits, the Fourth Circuit then applied the final three factors of a preliminary injunction analysis. The court found that any minority voter being denied the right to vote based on these practices was enough to constitute irreparable harm. The court also found the public interest is best served by allowing the most eligible voters to vote. The court reversed the district court's denial of a preliminary injunction, and remanded the case to the district court with instructions to issue a preliminary injunction for these two provisions.

Judge Motz authored a dissent in which she argued the district court's ultimate decision to deny the preliminary injunction was not given enough deference by the majority, and the majority failed to give sufficient deference to the district court's factual finding that the evidence presented was insufficient to establish a likelihood of success on the merits. Judge Motz also echoed the Supreme Court's guidance with regard to preliminary injunctions in election cases; as the election draws nearer, courts must use greater caution in granting preliminary injunctions to reduce the risk of voter confusion. Judge Motz emphasized the burden on North Carolina in resurrecting its prior electoral practices, believing the majority underestimated the costs in evaluating the balance of hardships.

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


Panel: Circuit Judges Motz, Wynn, and Floyd

Argument Date: 9/25/14

Date of Issued Opinion: 10/1/14

Docket Number: 14-1845, 14-1856, 14-1859

Decided: Affirmed in part, reversed in part, remanded with instructions to enter a preliminary injunction

Case Alert Author: Steven Roy, Univ. of Maryland Carey Sch. of Law

Counsel: ARGUED: Allison Jean Riggs, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina; Penda Denise Hair, ADVANCEMENT PROJECT, Washington, D.C.; Marc Erik Elias, PERKINS COIE LLP, Washington, D.C., for Appellants. Alexander McClure Peters, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Thomas A. Farr, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Raleigh, North Caroli-na, for Appellees. Holly Aiyisha Thomas, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of America. ON BRIEF: Anita S. Earls, George E. Eppsteiner, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina; Dale Ho, Julie A. Ebenstein, Sean Young, New York, New York, Laughlin McDonald, ACLU VOTING RIGHTS PROJECT, Atlanta, Georgia; Christopher Brook, ACLU OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina, for Appellant League of Women Voters of North Carolina. Elisabeth C. Frost, Washington, D.C., Joshua L. Kaul, PERKINS COIE LLP, Madison, Wisconsin; Edwin M. Speas, Jr., John W. O'Hale, Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina, for Appellant Louis M. Duke. Edward A. Hailes, Jr., Denise D. Lieberman, Donita Judge, Caitlin Swain, ADVANCEMENT PROJECT, Washington, D.C.; Irving Joyner, Cary, North Carolina; Adam Stein, TIN FULTON WALKER & OWEN, PLLC, Chapel Hill, North Carolina; Daniel T. Donovan, Susan M. Davies, Bridget K. O'Connor, K. Winn Allen, Kim Knudson, Jodi Wu, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant North Carolina State Conference of Branches of the NAACP. Robert C. Stephens, OFFICE OF THE GOVERNOR OF NORTH CAROLINA, Raleigh, North Carolina; Karl S. Bowers, Jr., BOWERS LAW OFFICE LLC, Columbia, South Carolina, for Appellee Governor Patrick L. McCrory. Katherine A. Murphy, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Phillip J. Strach, Michael D. McKnight, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Raleigh, North Carolina, for Appellees State of North Carolina and North Carolina State Board of Election. Molly J. Moran, Acting Assistant Attorney General, Diana K. Flynn, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand, United States Attorney, Greensboro, North Carolina, Gill P. Beck, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Amicus United States of America. Samuel Brooke, SOUTHERN POVERTY LAW CENTER, Montgomery, Alabama; Michael C. Li, Jennifer L. Clark, Tomas Lopez, THE BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW, New York, New York, for Amicus The Brennan Center for Justice at N.Y.U School of Law. Chris Fedeli, JUDICIAL WATCH, INC., Washington, D.C.; H. Christopher Coates, LAW OFFICE OF H. CHRISTOPHER COATES, Charleston, South Carolina; Bradley J. Schlozman, HINKLE LAW FIRM LLC, Wichita, Kansas; Gene B. Johnson, JOHNSON LAW FIRM, P.A., Arden, North Carolina, for Amici Judicial Watch, Incorporated, Allied Educational Foundation, and Christina Kelley Gallegos-Merrill.

Author of Opinion: Judge Wynn; Judge Motz in dissent

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 01/14/2015 10:34 AM     4th Circuit     Comments (0)  

  Davis v. City of Greensboro -- Fourth Circuit
Headline: First Responders' Claims of Underpayment Will See Their Day in Court

Areas of Law: Civil Procedure, Governmental Immunity, Contracts

Issues Presented: (1) Whether the court had jurisdiction to review the district court's interlocutory orders; and (2) if so, whether the district court erred in rejecting the City's claims of governmental immunity.

Brief Summary: In a consolidated action brought by four groups of current and retired Greensboro, NC police officers and firefighters, the officers claimed that the City of Greensboro failed to pay wages and benefits owed under the City's "longevity payment program." Among other causes of action, the officers alleged that the City breached a contract for longevity pay, and some of the officers claimed they were entitled to the payments under the doctrines of equitable and quasi-equitable estoppel. The City moved to dismiss every cause of action from each of the four groups on the basis that there was no valid contract and thus immunity from suit. The U.S. District Court for the Middle District of North Carolina rejected the City's governmental immunity claim and denied in part the motions to dismiss. The City appealed on both grounds. The City argued that the officers failed to allege that their contracts were pre-audited and reduced to writing, as required by North Carolina statute.

The United States Court of Appeals for the Fourth Circuit first addressed the threshold question of whether jurisdiction over the appeals was appropriate. Relying on the collateral order doctrine, the court concluded that it had jurisdiction over appeals of orders rejecting governmental immunity. Turning to the substantive issues presented on appeal, the Fourth Circuit affirmed the district court's rulings on the motions to dismiss. First, the statutory requirement for a pre-audit applies only if the obligations in the contract come due the same year the contract is formed. Furthermore, because the officers properly pled that there was a written contract for longevity pay, governmental immunity was an insufficient defense. The Fourth Circuit concluded that at this stage in the litigation the officers had sufficiently alleged they had valid contracts for longevity pay, and thus, dismissal on the basis of governmental immunity was not warranted.

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

Panel: Judges Motz and King and Senior Judge Davis

Argument Date: 09/16/2014

Date of Issued Opinion: 10/22/2014

Docket Number: No. 13-1820

Decided: Affirmed by published opinion

Case Alert Author: Megan Raker, Univ. of Maryland Carey Sch. of Law

Counsel: ARGUED: Kenneth Kyre, Jr., PINTO, COATES, KYRE & BROWN, PLLC, Greensboro, North Carolina, for Appellant. Torin L. Fury, FRAZIER HILL & FURY, RLLP, Greensboro, North Carolina, for Appellees. ON BRIEF: William L. Hill, James Demarest Secor, III, FRAZIER HILL & FURY, RLLP, Greensboro, North Carolina, for Appellees.

Author of Opinion:
Judge Motz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 01/14/2015 10:21 AM     4th Circuit     Comments (0)  

January 6, 2015
  Wooten v. McDonald Transit Associates, Inc. - Fifth Circuit
Headline: Fifth Circuit Bolsters Protections for Defaulting Defendants.

Area of Law: Federal Rules of Civil Procedure; Age Discrimination in Employment Act.

Issue Presented: Whether evidence adduced at a default-judgment "prove-up" hearing can cure a deficient complaint.

Brief Summary: Wooten filed suit against McDonald Transit Associates, Inc. (McDonald) under the Age Discrimination in Employment Act (ADEA) alleging discrimination and retaliation. McDonald never answered or defended the suit. The U.S. District Court for the Northern District of Texas entered default against McDonald, and, after holding a hearing on damages at which Wooten provided live testimony that elaborated on his allegations, the district court entered default judgment for Wooten. McDonald later filed a motion to set aside the default judgment, which the district court denied. McDonald appealed to the U.S. Court of Appeals for the Fifth Circuit, which held that evidence adduced at a default-judgment "prove-up" hearing cannot cure a deficient complaint. The Fifth Circuit vacated the judgment and remanded with instructions to dismiss the complaint with leave to amend.

Extended Summary: Wooten filed suit against McDonald Transit Associates, Inc. (McDonald) under the Age Discrimination in Employment Act (ADEA) alleging discrimination and retaliation. Wooten's complaint alleged the following facts: Wooten worked for McDonald from 1999 to 2011 as a Class B Mechanic; he made a claim to the Equal Employment Opportunity Commission (EEOC) for age discrimination; after the claim was made McDonald, in violation of the ADEA, retaliated against Wooten and created a hostile work environment, until such time that Plaintiff was constructively discharged; and the unlawful conduct caused Wooten harm, including damages in the form of lost wages and benefits, mental anguish, and non-economic damages. McDonald never answered or defended the suit.

The U.S. District Court for the Northern District of Texas held a hearing, which the court expressly designated "a hearing to prove up damages for a default judgment." Wooten elaborated on his factual allegations. He testified that he was fifty-four years old at the time he made his claim to the EEOC; he explained that during his tenure he had been promoted from the position of Class B Mechanic to the position of Shop Foreman; he described his retaliation claim in greater detail: he stated that he was demoted from Shop Foreman, lowering his pay by $2 an hour; he was given menial work, and his hours were changed; he was denied opportunities for additional job-related certification; he stated that he was never reprimanded. The district court entered default judgment for Wooten. McDonald later filed a motion to set aside the default judgment, which the district court denied.

McDonald appealed to the U.S. Court of Appeals for the Fifth Circuit. McDonald asserted that Wooten's complaint insufficiently alleged the essential elements of his prima facie claim under the ADEA. The Fifth Circuit concluded that Wooten's complaint was impermissibly bare, but if viewed in combination with his live testimony, it provided a sufficient basis to support the default judgment. Therefore, the Fifth Circuit had to address the question on which they reserved judgment in Nishimatsu Construction Co., Ltd. v. Houston National Bank (5th Cir. 1976): May defective pleadings be corrected by proof taken at a default-judgment hearing?

The Fifth Circuit held, based on the Federal Rules of Civil Procedure, precedent, and policy and practical considerations, that evidence adduced at a default-judgment "prove-up" hearing cannot cure a deficient complaint. Rather, a district court in these circumstances has three options: (1) dismiss the complaint sua sponte without prejudice, allowing the plaintiff to amend and refile, (2) grant leave to amend the complaint to include the facts presented at the hearing, or (3) treat the hearing evidence as constituting a de facto amendment to the complaint and then allow the defendant to answer the complaint as amended.

Therefore, while the Fifth Circuit did not condone McDonald's conduct in the district court, the district court abused its discretion in entering default judgment against McDonald. The Fifth Circuit vacated the judgment and remanded with instructions to dismiss the complaint with leave to amend.

Judge Wiener wrote a dissent stating that the holding will eviscerate the role of default judgment. When district courts are asked to grant default judgments based on pleadings that are anything short of absolute perfection, they will almost certainly refuse to do so without first affording the recalcitrant defendants yet another bite at the apple.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/13/13-11035-CV0.pdf.

Panel: Circuit Judges Smith, Wiener, and Prado

Argument Date: 6/3/2014

Date of Issued Opinion: 1/2/2015

Docket Number: No. 13-11035

Decided: Vacated and remanded

Case Alert Author: Kirsty Davis

Counsel: Joseph Craig Johnston, Johnston & Miller, for Plaintiff-Appellee Wooten; David B. Dowell, Cantey Hanger, L.L.P., for Defendant-Appellant McDonald Transit Associates, Inc.

Author of Opinion: Judge Prado (Dissent by Judge Wiener)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 01/06/2015 11:24 AM     5th Circuit     Comments (0)  

January 5, 2015
  United States v. Lorenzo-Lucas - 8th Circuit
Case Name United States v. Lorenzo-Lucas

Headline Eighth Circuit panel affirms trial court evidentiary ruling that a warrant of deportation does not implicate a criminal defendant's Confrontation Clause rights

Area of Law Evidence, Criminal Procedure

Issue(s) Presented Whether a signed warrant of deportation is testimonial evidence that implicates the Confrontation Clause of the Sixth Amendment to the Constitution

Brief Summary The individual Defendant was convicted of illegal reentry into the United States after a prior deportation. At trial in the reentry proceeding, the government introduced a form I-205 against the Defendant. This was a signed warrant, evidencing that in the prior matter an immigration official took custody of the Defendant as a deportee, and observed the Defendant leaving the country. The Defendant objected to the evidence of the warrant, on the ground that it was testimonial in nature. The Defendant argued that the government had to produce the individual(s) who signed the warrant, or had to establish that the Defendant had a prior opportunity to cross-examine the now unavailable individual(s).

The trial court overruled the Defendant's objection, and the Eighth Circuit panel affirmed. The purpose of the I-205 form, said the panel, is to track movements of aliens and to enforce deportation. The purpose is not to create testimony for future criminal litigation.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/14/12/142758P.pdf

Panel Circuit Judges Loken, Bright, and Kelly

Date of Issued Opinion December 30, 2014

Decided Affirmed

Docket Number 14-2758

Counsel Frederick D. Franklin for the United States and Richard Haile McWilliams for Defendant

Author Judge Bright

TextCase Alert Circuit Supervisor Bradley Clary, University of Minnesota Law School

    Posted By: Bradley Clary @ 01/05/2015 01:47 PM     8th Circuit     Comments (0)  

December 31, 2014
  iMatter Utah v. Njord - Tenth Circuit
Case Name: iMatter Utah v. Njord - Tenth Circuit

Headline: Tenth Circuit holds that insurance and indemnification requirements of Utah's parade permit scheme violate the First Amendment of the United States Constitution.

Areas of Law: Constitutional Law

Issues Presented:

1. Does the First Amendment require that an exception to costly permit requirements be given to indigent applicants?

2. Did Utah's insurance requirements for the issuance of parade permits violate the First Amendment?

3. Did Utah's indemnification requirements for the issuance of parade permits violate the First Amendment?

Brief Summary:

Two environmental groups applied for permits to hold parades on State Street, a public state highway in Utah. Utah requires such applicants to obtain insurance naming Utah, the Department of Transportation, and its employees as additional insured parties. It also requires applicants to indemnify, hold harmless, and promise to defend Utah, its agencies, and its employees. The permit applications were denied because the environmental groups could not afford to purchase the necessary insurance.

The environmental groups filed suit against the Utah Department of Transportation and several officials challenging the insurance and indemnification provisions of the permit scheme as unconstitutional. The district court awarded summary judgment in favor of the plaintiffs, holding that both provisions were facially invalid restrictions in violation of the First Amendment. The Tenth Circuit affirmed the judgment of the district court, holding that both provisions were invalid time, place, and manner restrictions because they were not narrowly tailored to a significant governmental interest.

Extended Summary:

The State of Utah requires that the organizers of parades taking place on state highways first obtain a permit from the Utah Department of Transportation. As part of the application process, an applicant must "obtain and provide proof of liability insurance at time of application naming the 'State of Utah, the Department and its employees' as additional insured under the certificate, with a minimum of $1,000,000 coverage per occurrence and $2,000,000 in aggregate." Additionally, the applicant must sign an agreement to indemnify, hold harmless, and defend the State of Utah, its agencies, and its employees against various claims resulting from the event or the conduct of the organizers.

Two environmental groups, iMatter Utah and Positive Change Utah, applied separately for permits to hold parades on State Street, a state highway in Salt Lake City, Utah. Both groups were unable to afford the necessary insurance policies, and their applications were later denied. They each filed suit against the Utah Department of Transportation and several of its officials (collectively "Utah"), challenging the insurance and indemnification provisions of the permit scheme as unconstitutional. Their cases were consolidated in the district court, which granted summary judgment in favor of the plaintiffs and held that both requirements were facially invalid under the First Amendment because neither was narrowly tailored to any significant governmental interest espoused by the state. Utah appealed to the Tenth Circuit Court of Appeals.

The court used a de novo standard of review. It began by explaining some of the well-established First Amendment jurisprudence that would form the basis of its analysis. It explained that a law's proponent has the burden of establishing its constitutionality when that law infringes on the exercise of First Amendment rights, citing Ass'n of Cmty. Orgs. for Reform Now (ACORN) v. Municipality of Golden, Colo., 744 F.2d 739, 746 (10th Cir. 1984). It further explained that, as per Supreme Court precedent, the government is allowed to establish reasonable time, place, and manner restrictions on the use of government property considered a traditional public forum. The court did not address whether State Street was a traditional public forum because both parties agreed that it was.

The court first addressed the plaintiffs' argument that the insurance and indemnification provisions were unconstitutional as applied to them because they were unable to afford the insurance coverage necessary for a permit. The court noted that the Supreme Court itself has yet to address whether the First Amendment requires that an exception to costly permit requirements be given to indigent applicants. It highlighted a circuit split in which the Third and Eleventh Circuits have held that such an exception is required while the First and Sixth Circuits have not, particularly when there are "ample alternative forums" for the protected speech. The court adopted the position of the Third and Eleventh Circuits, holding that there is no broad indigency exception required by the First Amendment. While it acknowledged that there may be instances when the First Amendment requires accommodation of indigent people whose "rights are infringed upon by fees they are not capable of paying", the facts of this case did not render Utah's permit scheme unconstitutional.

Turning to the facial challenge to Utah's insurance and indemnification requirements, the Tenth Circuit applied the four-prong test adopted by the Supreme Court in Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992) and McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014). The Supreme Court had held that time, place, and manner restrictions must be justified without reference to the content of the regulated speech, be narrowly tailored to serve a significant governmental interest, leave open ample alternative channels for communication of the information, and not delegate overly broad licensing discretion to a government official. The Tenth Circuit did not address the requirement of content neutrality in this case because the district court had concluded (and the parties agreed) that the permit requirements were content neutral.

The court then turned to the question of whether the insurance and indemnification requirements of the permit scheme were narrowly tailored to serve a substantial governmental interest. Utah argued that it had several significant interests to which the requirements were narrowly tailored: the interest in maintaining public order, preventing traffic and sidewalk obstructions, and promoting safety, and the interest in recovering expenses it incurs as a result of the parade and protecting itself from liability resulting from the use of its property.

The court quickly addressed the first set of interests espoused by Utah. The district court previously concluded that neither the insurance nor the indemnification requirement would have any effect on the likelihood that an accident would occur during an event. Utah did not present any evidence to demonstrate otherwise, and so the Tenth Circuit held that the insurance and indemnification requirements were not narrowly tailored to the government's interest in maintaining public order, preventing traffic and sidewalk obstructions, and promoting safety.

The court also quickly addressed Utah's interest in recovering expenses incurred in the production of parades, summarizing it as an interest in "protecting the fisc". The court found that Utah had not presented any evidence to show that the insurance and indemnification requirements are tailored to address that interest, noting that neither requirement forces the permittee to reimburse the state for the various costs it incurs.

The court turned its analysis to whether the requirements were narrowly tailored to Utah's last identified interest: protecting itself from liability. The parties agreed that such an interest is a significant one. The court began its analysis with Utah's insurance requirement. Utah argued that the requirement was narrowly tailored because the sidewalk was "an available, worthy alternative to the street" and the use of it does not require a permit. It also argued, more generally, that requiring the permittee to have insurance and name the state agencies as additionally insured was an "exact fit" to the state's interest of protecting itself from liability. The court rejected both of these arguments.

The court rejected the first argument because satisfaction of the requirement that a valid time, place, and manner restriction "leave open ample alternative channels for communication of the information" does not automatically satisfy the requirement that the restriction be narrowly tailored to a significant governmental interest, nor does it eliminate that requirement. The two requirements are distinct and both must be satisfied for such a restriction to be constitutional.

The court rejected the second argument because Utah had not provided any evidence to support its assertion that the insurance requirement was an "exact fit" to the state's interest in protecting itself from liability. The court explored various hypothetical scenarios in which restricting parades to sidewalks would actually result in greater liability for the state than if it allowed the permit to take place on the street with proper precautions in place. The court then explored the case law cited by Utah as grounds to uphold its insurance requirement. Those cases saw various courts uphold permit fees as constitutional, but those same cases all advanced the proposition that those fees must be demonstrably related to the costs or liability incurred by the state. Utah cited Sullivan v. City of Augusta, 511 F.3d 16 (1st Cir. 2007), where the court held that "it [was] a violation of the First Amendment to have charged [the plaintiff] more than the actual administrative expenses of the license". Id. at 38. Because the insurance premiums to be paid by the permittee would vary based on the policy amounts, Utah was required to demonstrate that its requirement of $1,000,000/$2,000,000 in insurance coverage was aligned to its potential liability. The Tenth Circuit found that Utah had failed to do so.

The court further addressed Utah's potential liability by noting how improbable it was that Utah would incur liability for damages arising from parades. Under the Governmental Immunity Act of Utah (GIAU), Utah Code §§ 63G-7-101 to 63G-7-904, the state waived sovereign immunity for injuries "proximately caused by a negligent act or omission of an employee committed within the scope of employment" and for injuries caused by defective, unsafe, or dangerous conditions of highways, roadways, and streets unless the injury was caused by a "latent" condition. In short, Utah's only potential parade liability would be for its own negligence. The court further explained that "Utah cannot require the permittee to bear the cost of insuring Utah against Utah's own negligence."

Finally, the court reasoned that the insurance requirement was not narrowly tailored because it forced permittees to bear the cost of insuring against conduct that the permittees could not be held liable for, such as reactions of third-party bystanders and the actions of police officers or employees of the state. In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 931 (1982), the Supreme Court held that such liability cannot be imposed on organizations exercising their First Amendment rights to free speech unless those organizations actually or apparently authorized or afterwards ratified unlawful conduct. The court held that Utah's insurance requirement was not narrowly tailored to its interest in protecting itself from financial liability and that it violated the First Amendment.

The court then shifted its analysis to determine whether the indemnification requirements were narrowly tailored to the significant governmental interest of protecting the state from liability. It acknowledged that Utah's indemnification provision was narrower in scope than the insurance provision. The court then recalled that, because Utah would avoid liability in most situations because of sovereign immunity, the only real duty imposed by the indemnification clause would be for the permittee to defend Utah against frivolous or meritless lawsuits. The court noted that this duty could easily result in a "heckler's veto" through which third parties who disagree with the reason for or content of a demonstration could punish the demonstrators after the fact through meritless lawsuits against the state.

Utah argued that its indemnification requirement should be upheld because of its similarity to Hawaii's, which was recently upheld by the Ninth Circuit in Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012). That provision required permit applicants to indemnify, defend, and hold harmless the state, but it only extended to claims arising from the applicant's conduct. The Tenth Circuit noted that Hawaii's indemnification provision did not, on its face, regulate core expressive conduct as Utah's provision does. Utah's indemnification provision was part of a permit scheme designed to regulate parades which, by their very nature, involve expressive conduct. Hawaii's indemnification provision, by contrast, regulated people engaging in "commercial activities of any kind" on a public beach. This core distinction rendered Kaahumanu inapplicable to the present case.

The court held that Utah's indemnification requirement was not narrowly tailored to its interest in protecting itself from liability and so violated the First Amendment.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-4173.pdf

Panel: Briscoe, Hartz, Holmes

Date of Issued Opinion: December 22, 2014

Docket Number: No. 13-4173

Decided: Affirmed district court's award of summary judgment in favor of plaintiffs.

Counsel:
J. Clifford Petersen, Assistant Attorney General (Joni J. Jones and Kyle J. Kaiser,
Assistant Utah Attorneys General, with him on the briefs), Salt Lake City, Utah,
for Defendants-Appellants.

Stewart Gollan, of the Utah Legal Clinic, (John Mejia and Leah Farrel, ACLU of
Utah, with him on the brief), Cooperating Attorney for the Utah Civil Rights &
Liberties Foundation, Salt Lake City, Utah, for Plaintiffs-Appellees.

Author: Briscoe

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 12/31/2014 06:24 PM     10th Circuit     Comments (0)  

  United States v. Sellner - Eighth Circuit
Headline Eighth Circuit panel holds that pro se petitioner's filing of second motion challenging sentence while first motion remains pending should be treated as a motion to amend

Area of Law Sentencing

Issue(s) Presented Whether the district court properly denied defendant's two pro se motions to vacate her conviction, where no evidentiary hearing was conducted and the second motion was dismissed as "second or successive."

Brief Summary Defendant pleaded guilty to conspiracy to distribute and possess with intent to distribute methamphetamine. Following entry of judgment, Defendant filed a pro se motion to vacate her conviction pursuant to 28 U.S.C. § 2255, arguing that her counsel failed to file a notice of appeal even though she requested he do so. While that motion was pending, Defendant filed a second § 2255 motion raising a different issue. The district court dismissed Defendant's first motion on the merits, without first holding an evidentiary hearing. It also dismissed her second motion as "second or successive" under the Antiterrorism and Effective Death Penalty Act (AEDPA). Defendant appealed the denial of her § 2255 motions.

With respect to denial of her first § 2255, the Eight Circuit followed existing precedent and held that an evidentiary hearing should have been held before denial of the motion on the merits. Competing statements by Defendant and Defendant's counsel regarding whether a notice of appeal was requested created a factual dispute necessitating an evidentiary hearing.

Defendant argued that her second § 2255 motion should have been construed as a motion to amend, and should not have been denied as "second or successive." Motions to amend are not considered "second or successive" under AEDPA. The Eighth Circuit agreed with Defendant. Though the Eighth Circuit had not previously addressed this issue, it followed the lead of other circuits and held that when a pro se defendant files a second § 2255 motion before the first has been ruled on, the second motion should be construed as a motion to amend. In support, the Eighth Circuit noted that pro se filings are to be liberally construed, and no adjudication on the merits of the prior motion have yet occurred in such cases.

The full text of the opinion may be found at Text

Panel Chief Judge Riley and Circuit Judges Bye and Wollman

Date of Issued Opinion December 15, 2014

Decided Reversed and remanded

Docket Number 13-3794

Counsel Kimberly Bunjer for the United States and Michael David Gooch for Defendant

Author Circuit Judge Wollman

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

    Posted By: Joelle Larson @ 12/31/2014 10:46 AM     8th Circuit     Comments (0)  

December 29, 2014
  In Re: National Football League Players Concussion Injury Litigation - Third Circuit
Headline: Third Circuit

Area of Law: Complex Litigation, Class Actions

Issues Presented: Whether the Third Circuit has jurisdiction under Federal Rule of Civil Procedure 23(f) over the district court's conditional grant of class action certification?

Brief Summary: The Third Circuit denied a petition by objectors who sought for a reversal of the district court's conditional class action certification. The Court declined to use its discretionary power to hear the case and concluded that it did not have jurisdiction under Rule 23.

Extended Summary: As part of the Multidistrict Litigation (MDL) on concussion, the district court conditionally grated certification of the settlement class. Objectors sought reversal of this conditional grant. The Third Circuit first had to determine whether it had jurisdiction to hear the interlocutory appeal. It ultimately decided that it did not. The Third Circuit did not reach the merits of the objectors' arguments.

As an interlocutory appeal, the Third Circuit had to determine if this appeal was in accord with an exception to the general rule that the court of appeals only has jurisdiction to hear appeals from final orders. Rule 23(f) allows parties to petition the court for a permission of appeal from an order granting or denying class-action certification under Rule 23. The grant of the petition is discretionary for the court of appeals.

In an issue of first impression, the Third Circuit had to determine what type of order the Court may review, including conditional certification. The Court held that the only type of Rule 23 order that the circuit courts have broad discretion over in granting interlocutory review is an order for class-action certification used pursuant to 23(c)(1). However, it is under Rule 23(e) that courts are allowed to conditionally certify the settlement class. The Third Circuit held that any such order that conditionally, or as the Third Circuit prefers to refer to it, "preliminarily" address class certification under Rule 23(e) does not fall under Rule 23(f)'s broad grant of discretionary jurisdiction.

The Third Circuit then found that the district court's order which is the basis for this appeal was not issued pursuant to Rule 23(c)(1). Rather, the district court used its power under Rule 23(e). The Court found that in fact the district court did not certify the class. Instead, it reserved that analysis for after a "fairness hearing," The objectors made various arguments that the Court did not find meritorious.

Judge Ambro dissented. He would have instead denied the petition for review because granting it would result in inefficient piecemeal litigation that would interfere with the formal fairness hearing on the settlement.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/148103p.pdf

Panel (if known): Ambro, Smith and Jordan, Circuit Judges

Argument Date: September 10, 2014

Date of Issued Opinion: December 24, 2014

Docket Number: No. 14-8103

Decided: Petition denied.

Case Alert Author: Antoinette Snodgrass

Counsel: Michele D. Hangley, William T. Hangley, Steven F. Molo, Thomas J. Wiegand, Eric R. Nitz, Linda S. Mullenix, Counsel for Petitioners; Bruce A. Birenboim, Brad S. Karp, Theodore V. Wells, Jr., Beth A. Wilkinson, Dana B. Klinges, David R. Buchanan, Diogenes P. Kekatos, Chistopher A. Seeger, Samuel Issacharoff, David D. Langfitt, Gene Locks, Arnold Levin, Steven M. Marks, Dianne M. Nast, Stephen F. Rosenthal, Sol H. Weiss, Anapol Schwartz, Counsel for Respondents; Alan B. Morrison, Scott L. Nelson, Allison M. Zieve, Amicus Counsel for Petitioners

Author of Opinion: Judge Smith

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 12/29/2014 04:20 PM     3rd Circuit     Comments (0)  

December 28, 2014
  United States v. Cruz- Tenth Circuit
Case Name: United States v. Cruz -- Tenth Circuit

Headline: Tenth Circuit Holds that Lack of Signature Does Not Make Warrant Invalid

Areas of Law: Criminal Procedure, Constitutional Law

Issue Presented:

1. Must a search warrant be signed and dated by the issuing judge in order to be valid?

Brief Summary:

The Tenth Circuit held that a warrant is not invalid under the Fourth Amendment simply because it lacked the signature of a judge on the face of the warrant. After losing on direct appeal, Defendant Cruz filed a motion to vacate, set aside, or correct his sentence on the basis of ineffective assistance of counsel. Cruz alleged that his trial counsel failed to adequately advise him about the immigration consequences of going to trial and about various plea agreements offered by the state. Further, he argued that his trial counsel failed to file a motion to suppress evidence found based on the search warrant, and argued that the warrant was invalid because it lacked a signature and date. The Tenth Circuit affirmed the district court's decision that the warrant was valid, and affirmed the district court's determination on resentencing.

Extended Summary:

Defendant Raul Cruz was convicted of knowingly and intentionally possessing with intent to distribute methamphetamine and was sentenced to 63 months in prison. After a failed direct appeal, Cruz filed a motion to vacate, set aside, or correct his sentence on the grounds of ineffective assistance of counsel because his trial attorney did not make a motion to suppress evidence based on the warrant not being signed or dated by the issuing judge. The district court denied relief on that basis, and Cruz appealed.
A search warrant for Cruz's residence was issued on the affidavit of a law enforcement officer who swore that he had reason to believe that methamphetamine, other controlled substances, drug paraphernalia, and money from narcotics transactions was present in the residence. The affidavit referenced information gathered from a confidential source and stated that the officer had conducted a controlled purchase of methamphetamine.
The warrant was signed and dated by an assistant district attorney on March 26, 2010, and presented to District Judge Kenneth Martinez. Judge Martinez signed the last page of the affidavit, and the date line provided was also filled in by either Judge Martinez or the officer. The warrant form itself was not signed, but the affidavit that Judge Martinez had signed and dated was incorporated by reference.
Nearly one month after the search warrant was executed, Judge Martinez signed and dated the search warrant, indicating that the warrant was dated on the 26th of March, 2010 at 10:00. Judge Martinez also hand-wrote "Nunc Pro Tunc on this April 23, 2010."
Cruz was convicted in September 2010, sentenced in June 2011, and was found subject to removal proceedings because he was born in Mexico and granted permanent residency. The conviction and sentence were affirmed on appeal.
In 2012, Cruz filed the motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 alleging two claims of ineffective assistance of counsel. The first claim stated that the warrant was invalid because Judge Martinez did not sign or date the warrant, and his trial attorney did not move to suppress the evidence or statements gathered as a result of the execution of the warrant. Cruz also alleged that he was not adequately advised concerning plea offers. These claims were both found by a magistrate judge to have merit, and a district court order amended and adopted in part the magistrate judge's proposed findings and recommended disposition. The district court found that the signature on the affidavit and the nunc pro tunc signature on the warrant was sufficient to show that Judge Martiinez had found probable cause and authorized the search. Further, the district court found that the warrant would have been entitled to the good faith exception to the exclusionary rule. Thus, the failure to file a motion to suppress did not prejudice Cruz because the evidence would not have been suppressed even if the motion were filed. The district court also noted that vacating the conviction would not be the proper remedy for the failure to properly advise about the plea agreement, but rather setting aside the sentence. Thus, the district court resentenced Cruz to 46 months followed by 3-years of supervised release and still noted he was subject to removal.
The Tenth Circuit noted that the appeal was timely, and that the appeal was an appeal of the § 2255 proceeding. It applied a de novo standard of review.
With respect to the motion to suppress, Cruz argued that the search warrant was invalid because it had not been signed or dated by the judge, and thus had not been "issued" by the judge. He argued that a motion to suppress would have resulted in the suppression of the evidence seized at his residence and the suppression of his statements, which would have led to dismissal of the charges or an acquittal.
The majority agreed with the First Circuit, which stated in United States v. Lyons, 740 F.3d 724 (1st Cir.), cert. denied, 134 S. Ct. 2743 (2014), that there is nothing in the Fourth Amendment that states that the lack of a signature makes a warrant invalid. Rather, only probable cause and a description of the place to be searched are required by the Fourth Amendment. It also noted that the federal and state rules of criminal procedure that refer to search warrants do not require a signature.
The majority explained that Lyons had very similar facts to the present case, with a state judge reviewing the application for the warrant, determining that probable cause existed, signing the application and the affidavit, but forgetting to sign the warrant itself. The day after the execution of the warrant, law enforcement noticed the omission. The prosecutor returned to the judge, who signed the warrant and wrote a note explaining the mistake. The First Circuit rejected the argument that the lack of signature before the execution of the warrant made it invalid, finding that there was no reason to find implicit in the Fourth Amendment that the magistrate must sign the warrant. Further, the First Circuit noted that federal appellate courts in other situations rejected "formalistic approaches to signatures in warrants." United States v. Lyons, 740 F.3d at 725. The First Circuit stated that it would not find a constitutional violation because the express mandates of the Constitution were satisfied. The Tenth Circuit agreed, but gave special attention to language in Lyons that stated that law enforcement still has ample reason to acquire signatures, and that the signature of the warrant provides easy and certain proof that the warrant was in fact issued.
Cruz responded to Lyons by arguing that it did not address whether the warrant was facially valid under Groh v. Ramirez, 540 U.S. 551 (2004). Under Groh, a warrant must contain (1) a finding of probable cause; (2) be supported by oath; (3) describe what is to be searched and (4) describe what is to be seized. Cruz argued that the lack of signature showed no indication that a magistrate had made a determination of probable cause. 540 U.S. at 557.
The majority stated that Groh did not impose a facial requirement under the Fourth Amendment, but rather a substantive requirement of probable cause. It also noted that Groh dealt with the requirement that the warrant describe the items or individuals to be seized.
The majority then addressed Cruz's argument that the reasoning in United States v. Evans, 469 F. Supp. 2d 893 (D. Mont. 2007), should be followed. In Evans, a law enforcement agent requested a warrant, and presented the magistrate judge with an affidavit summarizing his investigation. The judge then placed the agent under oath and had the agent sign the application and the affidavit. The judge then signed the application and affidavit, in two places, but did not indicate the date before which the warrant must be executed. The magistrate judge later testified that it was an oversight, and that his usual practice was to sign an application and an affidavit only when he intended to issue a warrant.
In Evans, law enforcement did not notice until after the warrant was executed that the search warrant was unsigned. The U.S. Attorney's Office advised law enforcement to do nothing about it because the damage was already done. The defendants moved to suppress the evidence and statements obtained arising from the execution of the search warrant, and the motions were granted by the district court, which held that an unsigned warrant was not a warrant under the Fourth Amendment. The district court in Evans relied on Groh, and stated that the search warrant contained no indication that it was an officially authorized warrant.
The majority explained that the court in Evans rejected the idea that the search warrant was officially authorized because the magistrate judge signed the warrant application and affidavit. Further, the court in Evans rejected the idea that the warrant was valid because the magistrate judge intended to sign it. The Evans court also rejected the government's argument that the good faith exception to the exclusionary rule should apply. However, the majority stated that the decision in Evans was erroneous, and declined to follow its reasoning. Further, the majority analyzed the meaning of the term "issue" and hesitated to follow Evans. "Issue" is defined by the Oxford English Dictionary Online as "[t]he action of going, passing, or flowing out." By replacing the word "issue" with its definition, the majority found that this definition matches up with Groh's interpretation of the Fourth Amendment, which does not have any particular technical requirements.
Finally, the majority noted that even if the warrant were deficient, the good faith exception set forth in United States v. Leon, 468 U.S. 897 (1984), would apply. In Leon, the court explained that suppression is appropriate if "(1) the magistrate or judge was misled by information that the affiant was false or would have known was false except for reckless disregard for the truth; (2) where the issuing magistrate abandoned his judicial role; (3) when the warrant was based on an affidavit that lacked indicia of probable cause so as to make belief in its existence unreasonable and (4) when the warrant is so facially deficient that the executing officers cannot reasonably assume that it is a valid warrant. Leon, 468 U.S. at 922. The majority explained that none of these factors applied to the warrant issued by Judge Martinez, and stated that the only unusual thing was the lack of the judge's signature on the face of the warrant. Thus, the Leon good faith exception applied.
The majority affirmed the district court's decision to deny the motion with respect to the ineffective assistance of counsel claim.

To read the full opinion, please visit:

http://www.ca10.uscourts.gov/opinions/14/14-2017.pdf

Panel: Briscoe, Holmes, Bacharach

Date of Issued Opinion: December 22, 2014

Docket Number: No. 14-2017

Decided: The Defendant's sentence and conviction were affirmed.

Counsel:

Todd A. Coberly of Coberly & Attrep, Santa Fe, New Mexico, for Defendant-Appellant.

Damon P. Martinez, United States Attorney; Laura Fashing, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Author: Briscoe

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 12/28/2014 05:38 PM     10th Circuit     Comments (0)  

December 15, 2014
  United States v. Black - Tenth Circuit
Case Name: United States v. Black - Tenth Circuit

Headline: Tenth Circuit holds that, under SORNA, sex offenders are "more than 4 years" older than their victims if they are more than 48 months or 1,461 days older.

Areas of Law: Criminal Law

Issues Presented:

1. What does it mean for a sex offender to be "no more than 4 years older" than a victim for the purposes of the Sex Offender Registration and Notification Act?

Brief Summary:

The defendant pleaded guilty to one count of sexual abuse of a minor in Indian Country. At sentencing, the defendant argued that the Sex Offender Registration and Notification Act ("SORNA") did not require him to register as a sex offender because SORNA excludes consensual sexual acts if the victim was at least 13 years old and the offender was not more than 4 years older than the victim. At the time of the incident, the defendant was 18 years old, the victim was 14 years old, and the defendant was 55 months older than the victim. The defendant argued that he was not more than four years older than the victim; subtracting the victim's 14 years of completed life from his 18 years of completed life yielded only four years. The district court disagreed and concluded that SORNA requires a comparison of the defendant's and victim's birth dates to determine the difference in age.

The Tenth Circuit upheld the district court's interpretation of the statute. Following the Third Circuit's approach to this issue, it held that "not more than 4 years older than the victim" means that no more than 1461 days or 48 months can separate the birthdays of the sex offender and the victim. The court affirmed the district court's order requiring the defendant to comply with SORNA's registration requirements.

Extended Summary:

SORNA provides a national database in which sex offenders are generally required to register. In defining a "sex offender" for this purpose, SORNA excludes those who committed offenses involving consensual sexual contact between individuals of certain ages. This case centers on a provision of SORNA's registration statute that states: "An offense involving consensual sexual conduct is not a sex offense for the purposes of [SORNA] if the victim . . . was at least 13 years old and the offender was not more than 4 years older than the victim." 42 U.S.C. § 16911(5)(C).

The defendant in this case pleaded guilty to one count of sexual abuse of a minor in Indian Country. At sentencing, the defendant argued that SORNA did not require him to register as a sex offender because, as an 18-year old, he was not more than four years older than his 14-year old victim even though he was 55 months older than her. The district court disagreed and concluded that SORNA requires a comparison of the defendant's and victim's birth dates to determine the difference in age.

The defendant argued that the district court's interpretation of SORNA's registration requirement was erroneous and suggested that the Tenth Circuit measure the age difference by subtracting the victim's completed years of life from the offender's completed years of life. Alternatively, the defendant argued that SORNA's registration requirement is ambiguous enough to warrant application of the rule of lenity. The Tenth Circuit reviewed both the question of statutory interpretation and applicability of the rule of lenity using a de novo standard of review.

In United States v. Brown, 740 F.3d 145 (3d Cir. 2013), the Third Circuit became the first circuit court to consider this issue. The district court in that case decided that the SORNA's registration provision in 42 U.S.C. § 16911(5)(C) was "susceptible to more than one reasonable interpretation". The Third Circuit disagreed. It began its process of statutory interpretation by looking at the plain language of the statute. It explained that words not otherwise defined in the legislative act would be construed as per their "ordinary or natural meaning". It also explained the need to consider the legislative act as a whole to determine if the legislature intended such an interpretation.

The Third Circuit turned its focus toward the common use of the term "year", finding it to mean 365 consecutive days (or 366 in leap years). This was supported by Black's Law Dictionary 1754 (9th ed. 2009), which defines a year as "[a] consecutive 365-day period beginning at any point." The court applied that definition and held that "no more than 4 years" in the statute means no more than 1,461 days or 48 months.

The Third Circuit also noted that applying the defendant's proposed interpretation of the statute would yield inconsistent results. It provided such an example: if an offender were 18 years old while the victim 14 years old, registration would not be required. If that offender became 19 years old while the victim remained 14, registration would then become required until the victim became 15 years of age (at which time, registration would no longer be required). The court concluded that Congress could not have intended for SORNA to be interpreted in a way that would lead to such inconsistency.

The Tenth Circuit wholly adopted the Third Circuit's analysis as grounds for rejecting the defendant's interpretation of the SORNA registration provision. It provided a further justification for doing so by reasoning that such an interpretation would have an "untoward collateral impact on the interpretation of substantive federal criminal provisions." The court noted that the statute under which the defendant pleaded guilty to statutory rape had a very similar age requirement. The statute only applies if the victim is between the ages of 12 and 16 and "at least four years younger" than the offender. Applying the defendant's interpretation to that statute would yield an opposite but equally undesirable result; using the colloquial understanding of "whole years of aging" would mean that the statute could reach defendants who are no more than three years and one day older than a sexual partner. It joined the Third Circuit in concluding that Congress could not possibly have intended for the random and inconsistent results that would follow such statutory interpretation.

The court then addressed the defendant's argument that the rule of lenity should apply. For the rule of lenity to be applicable, there must be a "grievous ambiguity or uncertainty in the statute". The court concluded that the term "4 years" in SORNA's registration provision is not ambiguous and, therefore, found the rule of lenity inapplicable.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-1000.pdf

Panel: Gorsuch, Sentelle, Murphy

Date of Issued Opinion: December 9, 2014

Docket Number: No. 14-1000

Decided: Affirmed the order of the district court.

Counsel:
Dean A. Strang, StrangBradley, LLC, Madison, Wisconsin (Robin Shellow, The
Shellow Group, Milwaukee, Wisconsin, on the brief), for Defendant - Appellant.

Catherine M. Gleeson, Office of the United States Attorney, Denver, Colorado
(John F. Walsh, United States Attorney, and Stephanie N. Gaddy, Special
Assistant United States Attorney, Denver, Colorado, on the brief), for Plaintiff -
Appellee.

Author: Murphy

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 12/15/2014 08:26 PM     10th Circuit     Comments (0)  

December 11, 2014
  Doe v. Harris - Ninth Circuit
Headline: Ninth Circuit affirms the district court's preliminarily injunction against enforcement of the Californians Against Sexual Exploitation Act.

Area of Law: Constitutional Law, First Amendment right to free speech for registered sex offenders.

Issue Presented: Whether the Californians Against Sexual Exploitation ("CASE") Act infringes the First Amendment freedom of speech of sex offenders when it requires them to provide a "list of any and all Internet identifiers established or used by the person . . . [and a] . . . list of any and all Internet service providers used by the person."

Brief Summary: Appellees ("John Doe, Jack Roe") represent a class of registered sex offenders.

Appellees asserted the CASE Act violates their First Amendment rights to freedom of speech and association and the provisions of the act are void for vagueness in violation of the Fourteenth Amendment. The district court concluded the Act is content neutral and applied a level of intermediate scrutiny to its review.

The district court determined the Act was not narrowly tailored to serve the government's important interest in combating human trafficking and sexual exploitation because the "challenged provisions . . . create too great a chilling effect to pass constitutional muster."

The Ninth Circuit Court of Appeals, upon review, applied an abuse of discretion standard when it reviewed the district court's decision. It agreed with the district court's finding the Act is content neutral. It also found the Act did not make speaker based distinctions since the Act does not target political speech. Therefore, the Ninth Circuit also applied intermediate scrutiny in its analysis.

The Ninth Circuit concluded "the CASE Act unnecessarily chills protected speech in at least three ways: the Act does not make clear what sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad."

In order to receive a preliminary injunction, a plaintiff must show a demonstrated likelihood of success on the merits of their claim. In addition, they must show it is likely they will (1) suffer irreparable injury in the absence of a preliminary injunction, (2) a balance of equities favor the injunction, and (3) an injunction favors the public interest.

The Ninth Circuit concluded "the district court did not abuse its discretion in deciding that all the necessary elements for obtaining a preliminary injunction [were] satisfied . . . ," and affirmed the district court's judgment.

Extended Summary: Appellees ("John Doe, Jack Roe") represent a class of registered sex offenders who are Internet users. They use the Internet to advocate anonymously on behalf of sex offenders and to comment on news articles, forums, and blogs. After the CASE Act was passed, Appellees filed suit against its enforcement.

The district court granted Appellees' motion for a preliminary injunction. The district court used an intermediate level of scrutiny in its analysis, after determining the Act was content neutral.

The court first considered whether a "narrowing construction" of the Act would clarify ambiguities in the Act. Both parties agreed to the narrower construction. First, the court construed the requirement for registered sex offenders to provide a "list of any and all internet providers used by the person" as meaning only ISP's with which they had open accounts at the time of registration, rather than all ISP's accessed by the registrant. The district court also interpreted the Act as requiring registrants to report only identifiers they used to engage in "interactive communication" and not those used solely to purchase products or read online content.

Even narrowed this way, the district court concluded the CASE Act is not narrowly tailored to serve the government's important interest in combatting human trafficking and sexual exploitation. "[T]he challenged provisions, when combined with the lack of protection on the information's disclosure and the serious penalty registrants face if they fail to comply with the reporting requirements, create too great a chilling effect to pass constitutional muster."

The district court further concluded the loss of First Amendment freedoms is an irreparable injury. It therefore granted Appellees' motion for a preliminary injunction and enjoined the State from enforcing provisions of the Act.

The State and Intervenors appealed.

The Ninth Circuit stated for a plaintiff to succeed in seeking a preliminary injunction, it must establish (1) the likelihood of success on the merits, (2) the likelihood of irreparable harm if the injunction is not granted, (3) the balance of equities tips in favor of an injunction, and (4) the injunction is in the public interest.

The Ninth Circuit further stated for a First Amendment claim, once the plaintiff establishes likely success on the merits, the burden shifts to the government to justify its speech-restrictive law. The standard of review for the district court's decision to grant a preliminary injunction is abuse of discretion. The district court's legal conclusion is reviewed de novo, and the district court's findings are reviewed for clear error.

The Ninth Circuit applied intermediate scrutiny, as did the district court, and concluded Appellees were likely to succeed on the merits of their First Amendment challenge.

The Ninth explained the reasoning for its conclusion First Amendment scrutiny was warranted.

First, the Ninth Circuit reasoned there is a continuum of possible punishments which "bring[] about the necessary withdrawal or limitation of many privileges and rights." Prison is at one end of this continuum, while parole is in the middle and probation is at the other end. Sex offenders who have completed the terms of their probation and parole are no longer even on this continuum and are therefore entitled to full First Amendment protection, even though they are still subject to reporting requirements. These requirements must be viewed as a collateral consequence of conviction rather than as a restraint.

Then, the Ninth Circuit applied the facts in Minneapolis Star & Tribune v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) (a tax on ink and paper which burdened specific publishers' ability to engage in free speech), and distinguished the facts of Arcara v. Cloud Books, Inc., 470 U.S. 697 (1986) (a raid on a house of prostitution which happened to be located in the back of an adult bookstore had nothing to do with books). Based on this analysis, the court concluded the CASE Act implicated the First Amendment, as it significantly burdens a narrow class of individuals for precisely one purpose - communicating on the internet.

Finally, the Ninth Circuit compared McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (where the court held a statute which required campaign literature to include the names of the distributers impeded First Amendment activity) to the present case, and concluded the CASE Act disclosure requirement similarly burdened sex offender's ability to engage in anonymous online speech.

The Ninth Circuit then looked to the level of scrutiny warranted by the case. Since the Act made no reference to specific subject matter or viewpoints, the Ninth Circuit determined the Act was content neutral and should be reviewed using intermediate scrutiny.

The Ninth Circuit further reasoned although the CASE Act does make speaker-based distinctions, these distinctions are unrelated to the content or to the expression of ideas. The Act does not target political speech, or make a ban on speech. The Act's purpose is not to target speech but to "combat the crime of human trafficking," and to "strengthen laws regarding sexual exploitation."

The Ninth Circuit then applied the intermediate scrutiny test to the CASE Act. They concluded the Act is clearly intended to serve a legitimate interest. Protecting Californians from sexual exploitation is of paramount importance. Predatory use of the Internet is a new means for offenders to entice and prey upon vulnerable individuals. Lastly, there is a strong link between child pornography and the Internet, so there is demonstrably a need to protect the public from sex offenders.

But, as the Court noted, "the question is whether the means California has chosen 'burden[s] substantially more speech than is necessary to further the government's legitimate interests.'" The Ninth Circuit concluded the Act unnecessarily chills free speech in at least three ways.

First, the Ninth Circuit noted the Act is ambiguous. "One provision requires registered sex offenders to report only ISP's with which they have an open account." "One provision requires registered sex offenders to report when they add or change an 'account with an Internet service provider." "ut another provision requires them to disclose 'any and all Internet service providers used by the person." These ambiguities may lead registered sex offenders to either over-report their activity or underuse the Internet in an effort to avoid these uncertainties. In conclusion, this undermines the likelihood the Act was narrowly tailored, and results in citizens significantly curtailing lawful activity to avoid running afoul of the Act.

Secondly, the Act burdens sex offenders' ability to engage in anonymous speech. Any designated law enforcement organization may provide information to the public by whatever means it deems appropriate, whenever it determines it is necessary to do so, in order to ensure public safety. The concept of "Public safety" is much too broad a concept to serve as an effective constraint on law enforcements' decisions to disclose. In turn, this creates unbridled discretion on the part of public officials to make these disclosures. The Supreme Court found this unfettered discretion unconstitutional in City of Lakewood v. Plain Dealer Publ'g, 486 U.S. 750 (1988) (explicit limits are required on an official's discretion, saying it's a matter of 'Public safety' is not enough). The fear of disclosure caused by the Act would chill the speech of sex offenders due to their fear of harassment, retaliation or intimidation.

Lastly, the 24-hour reporting requirement was found to be too burdensome by the Ninth Circuit. The Court stated that every time offenders "want to communicate with a new identifier, they must assess whether the message they intend to communicate is worth the hassle of filling out a form, purchasing stamps, and locating a post office or a mailbox." The Ninth Circuit concluded the requirement is psychologically chilling, and physically inconvenient. It is onerous, and applied in an across-the-board fashion.

The Ninth Circuit then examined the irreparable harm, balance of equities and the Public Interest. It concluded the district court did not abuse its discretion in finding all elements were met. They stated the loss of First Amendment rights "unquestionably constitutes irreparable injury." The Ninth Circuit held regarding the balance of equities, while the suit is pending, the State will experience some hardship, but the hardship pales in comparison to Appellees' interests. Compared to some State hardship, Appellees' First Amendment rights are chilled and they are subject to criminal sanctions. Lastly, "the public interest favors the exercise of First Amendment rights."

For these reasons, the Ninth Circuit held "the district court did not abuse its discretion by granting Appellees' motion to preliminarily enjoin provisions of the CASE act.

For the full opinion:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/18/13-15263.pdf

Panel: Mary M. Schroeder and Jay S. Bybee, Circuit Judges, and Robert J. Timlin, Senior District Judge.

Date of Issued Opinion: November 18, 2014

Docket Number(s): 13-15263 and 13-15267

Decided: Affirmed

Case Alert Author: Michael Zatlin

Counsel: Kamala D. Harris, Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Peter K. Southworth, Supervising Deputy Attorney General; Robert D. Wilson (argued), Deputy Attorney General, Office of the Attorney General of the State of California, Sacramento, California, for Defendant-Appellant. James C. Harrison (argued), Margaret R. Prinzing, Remcho, Johansen & Purcell, LLP, San Leandro, California, for Intervenors-Appellants. Michael T. Risher (argued), Linda Lye, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, California; Hanni Fakhoury, Lee Tien, Electronic
Frontier Foundation, San Francisco, California, for Plaintiffs-Appellees.

Author of Opinion: Bybee, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 12/11/2014 08:48 PM     9th Circuit     Comments (0)  

December 6, 2014
  USA v. Gamez Reyes - Ninth Circuit
Headline: Ninth Circuit Affirms Eight-Year Sentence of Participant in Smuggling Operation of Illegal Aliens and Unaccompanied Alien Minors.

Area of Law: Criminal Law & Procedure

Issue Presented: Whether the district court erroneously added two enhancements to a defendant's sentence when both the defense and government recommended a shorter sentence.

Brief Summary: Defendant-Appellant, Fredy Oswaldo Gamez Reyes ("Reyes"), appealed from the district court's determination that two enhancements be added during his sentencing pursuant to U.S.S.G. section 2L1.1(b)(4), harboring unaccompanied minor aliens, and pursuant to U.S.S.G. section 2L1.1(b)(8)(A), involuntary detainment of aliens through coercion or threat or in connection with a demand for payment.

First, the Ninth Circuit repeated the district court's application of U.S.S.G. section 1B1.3(a)(1)(B), which provides that "in the case of a jointly undertaken criminal activity, whether or not it is charged as conspiracy, a particular special offense characteristic should be determined based on 'all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.'"

The Court then analyzed whether it was reasonably foreseeable to Reyes that the smuggling operation involved unaccompanied minor aliens and the involuntary detainment of aliens through coercion or threat or in connection with a demand for payment. The Court concluded in the affirmative, referencing the size of the smuggling operation as well as Reyes' frequent visits to the stash houses in which the aliens and minors were imprisoned.

Extended Summary: Between May 2008 and March 2011, Reyes participated in a smuggling operation in which he was responsible for obtaining, renting, maintaining, and operating stash houses, in addition to collecting smuggling fees from family members in exchange for the release of aliens. Through this operation, approximately two thousand aliens were smuggled annually into the United States.

On July 27, 2009, two female aliens in a Compton stash house handed a note to children outside the house's barred window. The note was written on toilet paper and read, "Don't call the police... We are immigrants and we cannot leave." The children gave the note to a neighbor, and eventually the owner of the house and police were notified. When the Immigration and Customs Enforcement ("ICE") agents arrived, they arrested eighteen aliens, two of which were later determined to be thirteen and fifteen years old. Between January 2010 and March 2011, ICE agents executed search warrants on three houses in Southern California and discovered a total of seventy-nine smuggled aliens.

At trial, Reyes pleaded guilty to six counts of statutory violation of harboring and concealing illegal aliens for financial gain. In negotiating Reyes' plea, the government agreed not to recommend a term of imprisonment higher than the low end of the applicable Sentencing Guidelines range. However, the district court was not bound by such recommendation.

The United States Probation Office submitted a presentence report recommending a two-level enhancement for smuggling, transporting, or harboring an unaccompanied minor, and a second two-level enhancement for the involuntary detainment an alien through coercion or threat, or in connection with a demand for payment.

Over the objections of Reyes and the government, both recommending a shorter sentence, the district court imposed the two enhancements and added a third for an aggravated role in the offense. Reyes was sentenced to eight years' imprisonment - the top of the Sentencing Guidelines range. Reyes appealed.

The Ninth Circuit reviewed de novo the district court's interpretation of the Sentencing Guidelines and reviewed its factual findings for clear error. The Court echoed the district court's application of U.S.S.G. section 1B1.3(a)(1)(B), that "in the case of a jointly criminal activity, whether or not it is charged as conspiracy, a particular special offense characteristic should be determined based on 'all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.'"

In its discussion of the unaccompanied minor enhancement, the Court stated that the district court correctly applied the "reasonably foreseeable" standard, against Reyes' argument that the district court applied a "strict liability" standard. The Court clarified that the inclusion of minor aliens need not be an "obvious fact" but need only be "reasonably foreseeable."

The Court then repeated that because the smuggling ring was large in size and had no system to ensure that minor aliens were accompanied, it was reasonably foreseeable for Reyes to have known that minors were among the smuggled aliens. The Court also noted that the minors' last name did not match any others at the stash house. The Court opined that Reyes' familiarity with and frequent visits to the stash houses, in addition to his numerous encounters with the guards stationed there, his overseeing the maintenance and operation of the stash houses, and his personally collecting smuggling fees further indicated Reyes' reasonable foreseeability that unaccompanied minors were among the smuggled aliens.

In its discussion of the involuntary detention enhancement, the Court agreed with the district court that the aliens were confined in "coercive and threatening conditions." The Court stressed that the Compton stash house had bars on the windows, guards next to doors, an aggressive pitbull, and guns in plain sight. Furthermore, one witness claimed that guards beat and sexually assaulted other aliens. The Court inferred that these conditions were easily observable to Reyes and therefore reasonably foreseeable.

Finding no errors by the district court, the Ninth Circuit succinctly concluded its opinion by affirming the two disputed sentencing enhancements.

For the full opinion:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/21/13-50086.pdf

Panel: Stephen Reinhardt, Raymond C. Fisher, and Mary H. Murguia, Circuit Judges.

Date of Issued Opinion: November 21, 2014.

Docket Number: 13-50086

Decided: Affirmed.

Case Alert Author: Daniel S. Seu

Counsel: Marisa Conroy (argued), Law Office of Marisa L.D. Conroy, Encinitas California; Michelle Anderson Barth, Burlington, Vermont, for Defendant-Appellant; Kerry C. O'Neill (argued) and David M. Herzog, Assistant United States Attorneys; Robert E. Dugdale, Assistant United States Attorney, Los Angeles, California, for Plaintiff-Appellee.

Author of Opinion: M. Murguia, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 12/06/2014 04:26 PM     9th Circuit     Comments (0)  

  Edward Peruta, et al v. County of San Diego - Ninth Circuit
Headline: Ninth Circuit denies motion to intervene from a judgment holding that responsible law-abiding citizens have a right under the Second Amendment to carry a firearm in public for self-defense

Areas of Law: Constitutional Law, Civil Procedure

Issues Presented:
. Whether by challenging a county's exercise of regulatory authority that is based on a state's statute the statute itself is also challenged?
. When must an interested party move to intervene?
. What is required to justify granting motions to intervene?

Brief Summary: After the San Diego Sheriff declined to file a petition for rehearing en banc from an opinion and judgment holding that a responsible law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self defense, the State of California and the Brady Campaign to Prevent Gun Violence moved to intervene under Federal Rule of Civil Procedure 24 (FRCP 24). The California Police Chiefs' Association (CPCA_ and the California Peace Officers' Association (CPOA) also submitted a petition for rehearing en banc as amici in this case. The Ct, noting that amici cannot file petitions for rehearing en banc, interpreted their petition as a motion to intervene.

Intervention both of right and by permission, under FRCP 24, can only occur " '[o]n timely motion.' " Three factors are considered to determine timeliness: (1) the stage of the proceedings when intervene is sought; (2) prejudice to other parties; and (3) reasons for the length of the delay."

Regarding the stage of the proceedings, the court believed the motions were untimely based on the age of the case and when intervention was sought. More than four years had passed between when the case began and when the motions to intervene were filed. Furthermore, intervention was sought when the case was on appeal, bringing into play precedent that intervention at the appellate stage should be limited to rare cases. Thus, this court reasoned that allowing intervention after the publication of an appellate opinion should be extremely rare.

The second factor, prejudice to other parties, would weigh in favor of timeliness given that no reasons were given as to why or how the parties would face prejudice as a result of delayed intervention here.

The reasons for the length of the delay also weigh against the motions being timely. Parties have a duty to seek intervention as soon as they know or should know that their interests may be adversely affected by the outcome of litigation. Both California and the Brady Campaign originally thought that Sheriff Gore would adequately protect their interests, thus they knew at that point that their interests might be adversely affected by the litigation. The fact that the two movants wanted to avoid inconvenience was not a sufficient reason to justify delay.

California and the Brady Campaign attempted to rely on a prior case where the State of Hawaii was allowed to intervene after a panel's opinion was published; however, in that case the State of Hawaii had petitioned for amicus status and participated at the district court level. Here, neither California nor the Brady Campaign participated as an amicus in the lower court and thus the prior case is distinguishable. While CPCA and CPOA are amici, they cannot rely on the prior case since their participation was not comparable to Hawaii's.

Based on the evaluation of the three relevant factors, the court ruled the motions for intervention were untimely. In the absence of a timely motion, the court held that none of the three movants met their burden of demonstrating " 'imperative reasons' " justifying intervention on appeal. As such, all three motions for leave to intervene were denied.

Dissent:
Judge Thomas dissented on the basis that circuit precedent conflicts with the majority's decision and that the majority's decision deprives the State of California from present an argument on an important constitutional issue.

While the case began with the question of whether the Second Amendment extended to concealed carry of handguns in public, on appeal the case morphed into a challenge of the constitutionality of California's firearm regulatory framework. Judge Thomas argued specific language from the original opinion directly brought the constitutionality of a state statute into question, thereby giving the opportunity to intervene under 28 U.S.C. section 2403(b), Federal Rule of Civil Procedure 24(a) and Federal Rule of Civil Procedure 24(a)(2).

Judge Thomas further argued that the motions to intervene were timely because the State of California moved to intervene as soon as it learned that San Diego County would not be defending the case. Since the opinion broadened the issue from merely the San Diego policy to the entire California handgun regulation scheme, California had no need to intervene until the appellate opinion was published.

Even if California does not have a right to intervene under Rule 24(a), Judge Thomas argues that the State's request for permissive intervention under Rule 24(b) should be granted given that federal question jurisdiction exists, there are common issues of fact and law, and neither the plaintiffs nor the defendants oppose permissive intervention here.

Lastly, Judge Thomas argues that since the constitutionality of a state statute was raised and the attorney general was not properly served, the appropriate remedy under Federal Rule of Civil Procedure 5.1 is to allow intervention on appeal.

Extended Summary: Sheriff William D. Gore declined to file a petition for rehearing en banc from an opinion and judgment holding that a responsible law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self defense. When the Sheriff refused to file the petition, the State of California and the Brady Campaign to Prevent Gun Violence moved to intervene under Federal Rule of Civil Procedure 24 (FRCP 24). The California Police Chiefs' Association (CPCA_ and the California Peace Officers' Association (CPOA) also submitted a petition for rehearing en banc as amici in this case. The Ct, noting that amici cannot file petitions for rehearing en banc, interpreted their petition as a motion to intervene.

Intervention both of right and by permission, under FRCP 24, can only occur " '[o]n timely motion.' " Three factors are considered to determine timeliness: (1) the stage of the proceedings when intervene is sought; (2) prejudice to other parties; and (3) reasons for the length of the delay."

In examining the first factor, the stage of the proceedings, the court believed the motions were untimely based on the age of the case and when intervention was sought. More than four years had passed between when the case began and when the motions to intervene were filed. Furthermore, the fact that intervention was sought when the case was on appeal rather than in the district court further supported that the motions were untimely. Since precedent established that intervention at the appellate stage should be limited to rare cases, this court reasoned that allowing intervention after the publication of an appellate opinion should be extremely rare. Based on all of these reasons, the ct held that the first factor weighed against timeliness.

The second factor, prejudice to other parties, would weigh in favor of timeliness given that no reasons were given as to why or how the parties would face prejudice as a result of delayed intervention here.

The third factor, reasons for the length of the delay, weighs against the motions being timely. Precedent has established that parties have a duty to seek intervention as soon as they know or should know that their interests may be adversely affected by the outcome of litigation. The State of California and the Brady Campaign argue that their delay was reasonable given that they moved to intervene as soon as they became aware that Sheriff Gore would not be filing a petition for rehearing. The court, however, points out that since the two movants originally thought that Sheriff Gore would adequately protect their interests that they also knew at that point that their interests might be adversely affected by the litigation. Furthermore, the court explained that avoiding inconvenience to yourself is not a sufficient reason to justify delay, otherwise interested parties would be encourage to wait to intervene until the final stages of cases.

California and the Brady Campaign attempted to rely on a prior case where the State of Hawaii was allowed to intervene after a panel's opinion was published; however, in that case the State of Hawaii had petitioned for amicus status and participated at the district court level. Here, neither California nor the Brady Campaign participated as an amicus in the lower court and thus the prior case is distinguishable. While CPCA and CPOA are amici, they cannot rely on the prior case since their participation was not comparable to Hawaii's.

Based on the evaluation of the three relevant factors, the court ruled the motions for intervention were untimely. In the absence of a timely motion, the court held that none of the three movants met their burden of demonstrating " 'imperative reasons' " justifying intervention on appeal. As such, all three motions for leave to intervene were denied.

Lastly, the court addressed the dissent's position that constitutionality was drawn into question here and as such that other statutes would allow the State of California to intervene here. Contrary to the dissent's statements, the court explained that there was only one possible legal question on appeal since the only thing challenged was the San Diego County policy that asserting self-defense is insufficient to demonstrate " 'good cause' " under California law. Given that the opinion specifically stated that the challenge was not to the state-wide ban on open carry, it was narrowly construed to apply to the San Diego County policy only and not to any California statute. Furthermore, the opinion never questioned the constitutionality of any California statute, only San Diego County's exercise of regulatory authority. Given this, the statutes relied on by the dissent were inapplicable here.

Dissent:
Judge Thomas dissented on the basis that circuit precedent conflicts with the majority's decision and that the majority's decision deprives the State of California from present an argument on an important constitutional issue.

Judge Thomas explained that while the case began with the question of whether the Second Amendment extended to concealed carry of handguns in public, that on appeal the case morphed into a challenge of the constitutionality of California's firearm regulatory framework. Thomas based this position on language from the original opinion that stated "in order to resolve the plaintiffs' claims, 'we must assess whether the California scheme deprive[d] any individual of his constitutional rights.' " Judge Thomas argued that this language directly brought the constitutionality of a state statute into question, thereby giving the opportunity to intervene under 28 U.S.C. section 2403(b), Federal Rule of Civil Procedure 24(a) and Federal Rule of Civil Procedure 24(a)(2).

Judge Thomas further argued that the motions to intervene were timely because the State of California moved to intervene as soon as it learned that San Diego County would not be defending the case. That it was the opinion itself that broadened the issue from merely the San Diego policy to the entire California handgun regulation scheme. Therefore, Judge Thomas argues that California had no need to intervene in this case prior to the appellate opinion and as such this case falls within the Hawaii case relied on by California and the Brady Campaign. Since it was only after the filing of the opinion that there remained no party who could adequately defend California's interests, Judge Thomas argues that California's motion to intervene was timely and had a right to intervene.

Even if California does not have a right to intervene under Rule 24(a), Judge Thomas argues that the State's request for permissive intervention under Rule 24(b) should be granted given that federal question jurisdiction exists and there are common issues of fact and law. To bolster this argument, Judge Thomas points out that neither the plaintiffs nor the defendants oppose permissive intervention here.

Lastly, Judge Thomas argues that since the constitutionality of a state statute was raised and the attorney general was not properly served with notice of the pleading that the appropriate remedy under Federal Rule of Civil Procedure 5.1 is to either allow intervention on appeal or vacate the decision and remand to the district court to allow intervention. Rather than remand the case, Judge Thomas argued that the proper remedy is to allow California to intervene.

For the full opinion:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/12/10-56971.pdf

Panel: Diarmuid F. O'Scannlain, Sidney R. Thomas, Consuelo M. Callahan, Circuit Judges.

Date of Issued Opinion:
November 12, 2014

Docket Number: 10-56971

Decided: Denied motions to intervene.

Case Alert Author: Seth DuMouchel

Counsel: Not listed.

Author of Opinion:
Not listed.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 12/06/2014 04:24 PM     9th Circuit     Comments (0)  

December 5, 2014
  United States v. Wheelock - Eighth Circuit
Headline Eighth Circuit panel affirms use of administrative subpoena to procure internet subscriber information and mandatory minimum sentence for receipt of child pornography

Area of Law Fourth Amendment; Sentencing

Issue(s) Presented Whether use of an administrative subpoena to procure internet service subscriber information violates the Fourth Amendment and federal and state statutes, as well as whether the mandatory minimum sentence for receipt of child pornography arbitrarily punishes receipt more harshly than possession.

Brief Summary Using an administrative subpoena to Comcast, Minneapolis police connected Defendant to a computer downloading child pornography. Based on this data, police received and executed a search warrant on Defendant's home, and found several hard drives, DVDs, and CDs containing child pornography, as well as a computer actively downloading it. Ultimately, Defendant pled guilty to receipt of child pornography and was sentenced as a repeat offender to a minimum mandatory sentence of fifteen years in prison.

On appeal, Defendant challenged the use of an administrative subpoena to obtain information from Comcast, claiming it was a violation of his Fourth Amendment privacy rights. He also challenged the constitutionality of his mandatory minimum sentence, because by statute the mandatory minimum for receipt of child pornography is fifteen years, whereas for possession it is only ten years. Defendant argued that the mandatory minimum sentence arbitrarily punishes receipt more harshly than possession.

A panel of the Eight Circuit summarily rejected the administrative subpoena challenge. There is clear, binding Eighth Circuit precedent holding that the Fourth Amendment does not protect information revealed to a third party, and later conveyed by the third party to the government. Because Comcast, a third party, was in possession of Defendant's subscriber data, Defendant had no reasonable expectation of privacy in it. The panel noted that every federal court to address this issue has found that subscriber information provided to an internet provider is not protected by the Fourth Amendment.

Defendant further claimed that Minnesota's internet privacy statute prevented the disclosure, but the language of the statute itself requires the disclosure of information "to an investigative or law enforcement officer" where the information is requested through an administrative subpoena. The subpoena was properly applied for and issued in this case, and therefore suppression was not warranted.

As to the mandatory minimum sentence challenge, Congress established the minimums for receipt and possession of child pornography, and decided to punish receipt more harshly. To succeed in his challenge, Defendant needed to demonstrate that Congress's line drawing between these offenses was "totally arbitrary" under a "rational basis" inquiry.

Defendant contended that possession necessarily requires receipt, and conversely, that receipt necessarily requires possession. As such, they should be punished the same. However, the panel held that Congress's line drawing was not arbitrary. Intentional receipt of child pornography contributes to and furthers the market for child pornography, whether or not the person retains possession. Possession, conversely, does not necessarily further the market or spread the harm beyond the possessor. For example, someone could come to possess child pornography by accident, such as someone who was trying to access or purchase adult pornography. The Eight Circuit held that because the harms flowing from possession and knowing receipt differ, it is not irrational to punish them differently.

The full text of the opinion may be found at Text

Panel Chief Judge Riley and Circuit Judges Bye and Wollman

Date of Issued Opinion November 20, 2014

Decided Affirmed

Docket Number 14-1504

Counsel Laura Provinzino for Plaintiff and Alan Margoles for Defendant

Author Chief Judge Riley

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

    Posted By: Joelle Larson @ 12/05/2014 03:52 PM     8th Circuit     Comments (0)  

December 4, 2014
  Second Circuit - United States v. Sanchez
Headline: Second Circuit Holds that Erroneous Consideration of Prior State Narcotics Conviction in Calculating Mandatory Minimum Sentence Constituted Plain Error

Area of Law: Criminal

Issue(s) Presented: Whether the district court's miscalculation of defendant's mandatory minimum sentence based upon erroneous consideration of a prior state narcotics conviction constituted plain error.

Brief Summary: Appellant Sanchez pled guilty to conspiring to possess, with intent to distribute, over 1,000 grams of heroin and was sentenced based on his guilty plea and his status as a second-offender. Taking into considering Sanchez's prior Connecticut conviction for narcotics possession, the United States District Court for the District of Connecticut found that Sanchez's mandatory minimums sentences increased from 10 years' imprisonment and 5 years' supervised release to 20 years' imprisonment and 10 years' supervised release. Sanchez was ultimately sentenced to 288 months' imprisonment and 10 years' supervised release. The Second Circuit held that the lower court erred in considering Sanchez's prior conviction and therefore miscalculated Sanchez's mandatory minimum sentences. Finding the calculation constituted plain error, the Court vacated and remanded for resentencing.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...c8d329f53e03/2/hilite/

Extended Summary: Appellant Sanchez pled guilty to one count of conspiring to possess, with intent to distribute, over 1,000 grams of heroin. In sentencing Sanchez, the United States District Court for the District of Connecticut found Sanchez was subject to enhanced penalties because of a prior Connecticut conviction for possession of narcotics. Based on Sanchez's prior-conviction, the District Court found that mandatory minimum sentences for Sanchez's crime increased from 10 years' imprisonment and 5 years' supervised release to 20 years' (360 months) imprisonment and 10 years' supervised release. Sanchez was ultimately sentenced to 288 months' imprisonment and 10 years' supervised release.

Sanchez failed to object at his sentencing hearing but, on appeal, argued that the District Court's imposition of a prior-conviction enhancement, which raised the mandatory minimum sentence, constituted plain error. The Second Circuit agreed with Sanchez and vacated and remanded for resentencing.

Plain error exists where (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings. The government did not dispute that prongs one and two were satisfied because considering Sanchez's prior Connecticut conviction as a prior drug felony for sentencing was a clear error, not subject to reasonable dispute, because the Government could not prove Sanchez was convicted under a qualifying federal narcotics laws. Accordingly, the mandatory minimum should have been a shorter term of imprisonment and supervised release. The Government likewise did not dispute that the remaining prongs were satisfied with regard to Sanchez's sentence to supervised release of 10 years, the mandatory minimum considering the prior conviction, and that that portion of the sentence constituted plain error.

The Government did argue, however, that the imprisonment term should stand and did not constitute plain error. The Second Circuit disagreed, holding that the erroneous calculation substantially affected Sanchez's rights and reflected a lack of fairness and integrity of the judicial proceedings. Adopting a narrower reading of the holding in its prior decision in United States v. Deandrade than either the Government or defense, the Court found no bright-line test existed and that, evaluating the case record as a whole as Deandrade dictated, the erroneously calculated mandatory minimum did affect Sanchez's sentence. The Court found that, unlike in Deandrade, the assumption of a higher mandatory minimum permeated the record in this case and both sides relied on the erroneous mandatory minimum throughout Sanchez's sentencing hearing, affecting his substantial rights.

As to whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings, the Court found that the District Court relied on the erroneous mandatory minimum and, if this error were to stand uncorrected, Sanchez would face a longer sentence than he otherwise would, seriously affecting the fairness and integrity of the judicial proceedings. Accordingly, the Court vacated and remanded for resentencing.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...c8d329f53e03/2/hilite/
Panel: Circuit Judges Cabranes, Straub, and Livingston.

Argument Date: 08/19/2014

Date of Issued Opinion: 12/04/2014

Docket Number: 11-2429-cr

Decided: Vacated and Remanded.

Case Alert Author: Sam Kopf

Counsel: Devin McLaughlin, Langrock Sperry & Wool, LLP, Middlebury, VT, for Appellant Edwin Sanchez; Alina P. Reynolds, Assistant United States Attorney (Edward Chang, Assistant United States Attorney, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, Bridgeport, CT, for Appellee United States of America.

Author of Opinion: Judge Cabranes

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 12/04/2014 01:23 PM     2nd Circuit     Comments (0)  

December 3, 2014
  United States v. Aleff - 8th Circuit
Headline Eighth Circuit panel affirms summary judgment and penalty in favor of the United States in False Claims Act case

Area of Law False Claims Act

Issue(s) Presented Whether the district court properly granted summary judgment to the United States in a False Claims Act case when the individual defendants previously pled guilty to a fraud conspiracy in violation of 18 U.S.C. § 286, and whether a $1.3 million penalty in the False Claims Act case violated the Double Jeopardy or Excessive Fines Clauses of the Constitution

Brief Summary The individual defendants pled guilty to a conspiracy to defraud the United States in violation of 18 U.S.C. § 286. The court in the § 286 case ordered the defendants to pay just over $300,000 in restitution.

The United States then additionally filed a False Claims Act case under 31 U.S.C. §§ 3729-33. In that matter, the district court ordered the defendants to pay a $1.3 million penalty.

In the Eighth Circuit, the defendants first objected to the use of their guilty pleas from the § 286 proceeding to preclude them from litigating liability in the False Claims Act case on the ground that no issues were actually litigated in the first proceeding. The Eighth Circuit panel concluded, however, that the plea of guilty in the § 286 proceeding necessarily admitted a conspiracy to knowingly present a false claim to the government under the False Claims Act.

The defendants next objected to the assessment of the $1.3 million penalty in the False Claims Act case on the ground that it violated the U.S. Constitution Double Jeopardy Clause prohibition against multiple criminal punishments for the same offense. But the Eighth Circuit panel concluded that treble damages and fixed penalties under the False Claims Act are compensatory, not punitive.

The defendants finally objected to the assessment of the $1.3 million penalty in the False Claims Act case on the ground that it violated the U.S. Constitution Excessive Fines Clause. The Eighth Circuit panel concluded that the penalty could be punitive in nature under that Clause, but then ruled that the penalty was not in fact excessive in the circumstances of the case.

The full text of the opinion may be found at nullhttp://media.ca8.uscourts.gov/opndir/14/11/141527P.pdf

Panel Circuit Judges Murphy, Melloy, and Benton

Date of Issued Opinion November 20, 2014

Decided Affirmed

Docket Number 14-1527

Counsel Cheryl Schrempp Dupris for the United States and Jason Chandler Farrington for Defendants

Author Judge Benton

Case Alert Circuit Supervisor Bradley Clary, University of Minnesota Law School

    Posted By: Bradley Clary @ 12/03/2014 09:53 AM     8th Circuit     Comments (0)  

December 1, 2014
  Deboer v. Snyder -- Sixth Circuit
Headline: The Sixth Circuit denies application of the Fourteenth Amendment to same-sex marriage and upholds a rational basis for constitutional amendments that define marriage as between a man and a woman.

Area of Law: Due Process and Equal Protection Clause of the Fourteenth Amendment; Michigan Constitution; Ohio Constitution; Kentucky Constitution; Tennessee Constitution

Issues Presented: Does the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment require States to recognize same-sex marriage?

Brief Summary: The Sixth Circuit consolidated cases from Michigan, Kentucky, Ohio, and Tennessee in which plaintiffs challenged state constitutional amendments that defined marriage as between a man and a woman. The Sixth Circuit upheld the state laws on the grounds that the Due Process and Equal Protection Clauses of the Fourteenth Amendment do not require states to recognize same-sex marriages.

The Court based its decision on federalism principles, relying on a Supreme Court decision from 1972, Baker v. Nelson, 409 U.S. 810. The Court further held that there was no constitutional requirement to expand the definition of marriage after analyzing arguments based on originalism, rational-basis review, animus, interference with fundamental rights, evolving moral and policy considerations, and whether or not homosexuals as a group are a discrete and insular class without political power. In the end, the Court rejected all of the plaintiffs' arguments and upheld the state constitutional amendments.

Extended Summary: The entire holding was grounded on federalism principles since the Sixth Circuit determined that state governments have traditionally been given broad authority to regulate domestic-relationship issues. Judge Sutton began the opinion by framing the question as "how best to handle [change] under the United States Constitution." The Judge reinforced the broad framing of the question by pointing out that, practically speaking, this opinion will decide "whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples."

Judge Sutton further pointed out that all the states covered by the Sixth Circuit approved of constitutionalizing the definition of marriage through citizen initiatives that won by large majorities. In Michigan, 59% of the voters opted to constitutionalize the state's definition of marriage; in Kentucky, 74% of the voters approved; in Ohio, 62%; and in Tennessee, 80%. Therefore, the effect of affirming the district courts would be to overrule these citizen initiatives by judicial mandate.

Finally, Judge Sutton anchored the federalism argument on a one-line order from the United States Supreme Court's Baker decision, which held that a case with the same issue as the one presented here did not raise "a substantial federal question." The Sixth Circuit pointed to only two scenarios in which it may ignore a Supreme Court mandate: first, when the Supreme Court overrules the decision expressly by name; and second, when the Supreme Court overrules a decision by outcome.

As to the first, since none of the decisions cited by the plaintiffs mention Baker by name, an express overruling has not occurred. As to the second method, the Court held that no Supreme Court case has actually addressed the federalism issue since Baker. Therefore, the Sixth Circuit is still bound by it. The various plaintiffs made a variety of arguments that doctrinal developments have overruled Baker and that the Sixth Circuit should ignore the case. The plaintiffs rooted all of their arguments in the Due Process and the Equal Protection Clauses of the Fourteenth Amendment and sought various forms of equitable relief. All of the plaintiffs succeeded in their respective district courts, and the district courts applied a variety of reasons for striking down the marriage laws. But the Sixth Circuit rejected all the district courts' rationales and overturned their decisions. The Sixth Circuit held that none of the plaintiffs' arguments make "the case for constitutionalizing the definition of marriage" and "removing the issue from ... the hands of the state voters."

The Court pointed out that no plaintiff in this case argued that the adopters of the Fourteenth Amendment understood it to require the States to change the definition of marriage. Relying on recent Supreme Court decisions, the Sixth Circuit held that tradition and long-accepted practices only reinforce a State's ability to define marriage as between a man and a woman. Thus, the original meaning of the Fourteenth Amendment permits, but does not require, States to define marriage in any particular way.

The Court recognized that all laws are subject to rational-basis review. However, the Court noted that this standard should be applied with a "light touch" and great deference to legislators or, as in this case, the voters. The Court held that under rational-basis review, if the judge can find "any plausible reason, even one that did not motivate the legislators who enacted it - the law must stand, no matter how unfair, unjust, or unwise." The Court found two plausible reasons to justify defining marriage as between a man and a woman: (1) the regulation of sex and the intended and unintended effects of male-female intercourse; and (2) the "wait and see" approach, where States may legitimately wish to wait before changing a norm that has existed for centuries.

As for the first rationale, the Court pointed out that couples of the same sex do not run the risk of unintended offspring. The Court further argued that while people may not need the government's encouragement to have sex or procreate, they may need the government's encouragement to maintain stable relationships. The Court further stated that "it is not society's laws or for that matter any one religion's laws, but nature's laws (that men and women complement each other biologically), that created the policy imperative." Thus, marriage definitions based on gender are rational and help to stabilize society.

As to the second rationale, the "wait-and-see" approach, the Court held that a "sense of caution does not violate the Fourteenth Amendment." The Court found that the trend to adopt gay marriage was a new one, and the Court posed the question: "How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of . . . a new definition of marriage?"

The Court held further that if defining marriage as between a man and a woman could not withstand rational-basis review, then neither could laws enforcing monogamy. The Court stated that "[n]o State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable - if the claimants' theory of rational basis review prevails."

The Court went on to address the argument that these laws were born of animosity. The Court acknowledged that, in rare cases, judges must strike down a law -- even under rational-basis review -- if it is (1) a novel law that (2) targets a single group for disfavored treatment. But the Court held that none of these statewide initiatives met the elements of animus since they merely "codified a long-existing, widely held social norm already reflected in state law." The Court stated that the concern which motivated the enactment of these initiatives was not malice or unthinking prejudice, but "fear that the courts would seize control over an issue that people of good faith care deeply about." The Court stated that to accept such a motivation as animus would make the term useless.

Furthermore, the Court stated that assessing the motives of all voters in a state-wide initiative "strains judicial competence" because analyzing the motivations behind millions of voters is unwieldy. The Court also found that, should it conclude that the initiative was motivated by animus, it would be labeling traditional marriage proponents "as a monolithic group of hate-mongers." But the Court pointed out that the question of animus does not turn on the motivations of the people enacting the law, but whether anything but "prejudice to the affected class could explain the law." The Court hinged the answer to that question on its rational-basis arguments explained above and cited a string of other cases that found many reasons to justify defining marriage between a man and a woman other than anti-gay sentiments.

The Court then moved on to address whether defining marriage as between a man and a woman affects a fundamental right and thus deserves a more "unforgiving" scrutiny. The Court noted that just because something is fundamentally important, does not mean that it is a fundamental right under the precedence of substantive due process.

The test of substantive due process is defined as whether the right is "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist" without the right. The Court stated that this test requires the judge to ask two questions: (1) does the right appear expressly in the Constitution? And (2) does it turn on a bedrock assumption about liberty?

To the first question, the Court held that because neither the right to marry in general nor the right to same-sex marriage appear in the Constitution, "[t]hat route for recognizing a fundamental right to same-sex marriage does not exist." To the second question, the Court held that same-sex marriage does not implicate bedrock assumptions of liberty since the definition of marriage did not include gay couples until 2003; therefore, a bedrock assumption of liberty is not contingent on same-sex marriage.

The Court finished its discussion of fundamental rights by pointing to four examples of laws relating to marriage that have never been subjected to heightened scrutiny. First, States have changed the duration of marriage by enacting no-fault divorce statutes. Second, States have limited the number of people eligible to marry by outlawing polygamy. Third, States have enacted age-of-consent laws requiring a minimum age for marriage. Fourth, some States allow cousins to marry while others do not. The Court concluded that since strict scrutiny has not been applied to any of these types of laws, it cannot apply to sexual-orientation-based distinctions of marriage.

The next argument that the Court considered was whether homosexuals as a group are a discrete and insular class without political power. This argument rests on another line of Equal Protection cases that call for strict scrutiny when laws target groups that legislators have singled out for unequal treatment in the past. The Court held that since the institution of marriage between a man and a woman arose separately from American laws that have targeted same-sex couples, it is impossible to infer that prejudice against gays led to the traditional definition of marriage. The Court then cited the defeat of "Don't Ask, Don't Tell"; the striking down of a discriminatory city charter in Cincinnati; numerous victories in states that have expanded the definition of marriage; and finally, victories in federal courts. According to the Court, all of this supports the proposition that same-sex couples are not politically powerless but, instead, are an "influential, indeed eminently successful" interest group.

The Court finished its discrete-and-insular-minority discussion with a hypothetical question: "If federal preeminence in foreign relations requires lenient review of federal immigration classifications, why doesn't state preeminence in domestic relations call for equally lenient review of state marriage definitions?" The Court held that strict scrutiny does not apply to sexual-orientation-based classifications.

Finally, the Court addressed whether evolving moral and policy considerations should force the Court to strike down these marriage laws. The Court stated that the theory of the living constitution rests on the premise that every generation has the right to govern itself. Therefore, federal judges must appreciate the pace of democratic majorities when voters attempt to decide whether to embrace an evolving societal norm, as long as that pace is within reasonable bounds. The Court found that the current pace of democratic majoritarian rule was reasonable because (1) the laws in question came about from 2004 to 2006; (2) no Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment; and (3) even the European courts have not yet recognized the right to same-sex marriage. Furthermore, the Court stated that it would be "dangerous and demeaning to the citizenry" for Courts to interject themselves into contentious and evolving issues such as this one. Therefore, since the issue was still a moving target, it would be too soon for a Court to intervene on the grounds of the evolving-meanings doctrine.

Dissent: The dissent, authored by Judge Daughtrey, criticized the majority's framing of the question on federalism grounds as an "introductory lecture in Political Philosophy." Judge Daughtrey argued that the broad framing of the question ignored the facts and plaintiffs before the Court, and dodged the specific question of whether a State's prohibition of same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment.

The dissent asserted that these laws fail the rational-basis test because they (1) do not actually further any the legitimate interest, and (2) are motivated by animus and based on irrational distrust of a particular group. The dissent argued that the animus standard applies here since the Supreme Court has instructed that "an exclusionary law violates the Equal Protection Clause when it is based not upon relevant facts, but instead upon only a general, ephemeral distrust of, or discomfort with, a particular group." Pointing to both the expert testimony offered in the Michigan case and the "irresponsible procreation theory," the dissent concluded that the basis of these laws was, in fact, merely a distrust or discomfort with the idea of same-sex couples getting married. The dissent noted the majority's concession that "we as a country have such a long history of prejudice based on sexual orientation." Therefore, the dissent noted, it would be hypocritical to deny the existence of unconstitutional animus in the rational-basis analysis of these cases.

Link to full opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0275p-06.pdf

Panel: Circuit Judges Daughtrey, Sutton, Cook

Argument Date: August 6, 2014

Date of Issued Opinion: November 6, 2014

Docket Number: 14-1341; 14-3057; 14-3464; 14-5291; 14-5297; 14-5818

Decided: November 6, 2014

Case Alert Author: Jerrod D. Simpson

Counsel: ARGUED: Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant in 14-1341. Carole M. Stanyar, Ann Arbor, Michigan, for Appellees in 14-1341.

Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 14-3057 and 14-3464. Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees in 14-3057 and 14- 3464.

Leigh Gross Latherow, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant in 14-5291 and 14-5818. Laura E. Landenwich, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees in 14-5291 and 14- 5818.

Joseph F. Whalen, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants in 14-5297. William L. Harbison, SHERRARD & ROE, PLC, Nashville, Tennessee, for Appellees in 14-5297.

ON BRIEF: 14-1341: Aaron D. Lindstrom, Kristin M. Heyse, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, Ann Arbor, Michigan, Dana M. Nessel, Detroit, Michigan, Robert A. Sedler, WAYNE STATE UNIVERSITY LAW SCHOOL, Detroit, Michigan, Kenneth M. Mogill, MOGILL, POSNER & COHEN, Lake Orion, Michigan, for Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan, Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Paul Benjamin Linton, Northbrook, Illinois, James R. Wierenga, DAVID & WIERENGA, P.C., Grand Rapids, Michigan, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., James J. Walsh, Thomas J. Rheaume, Jr., BODMAN PLC, Detroit, Michigan, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Lawrence J. Joseph, Washington, D.C., Thomas M. Fisher, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, LIBERTY COUNSEL, Orlando, Florida, Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F. Moses, U.S. CONFERENCE OF CATHOLIC BISHOPS, Washington, D.C., Alexander Dushku, R. Shawn Gunnarson, KIRTON MCCONKIE, Salt Lake City, Utah, Erin Elizabeth Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Jason Walta, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., Diana Raimi, JAFFE RAITT HEUER & WEISS, P.C., Ann Arbor, Michigan, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Alan M. Gershel, THOMAS M. COOLEY LAW SCHOOL, Auburn Hills, Michigan, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Nicholas M. O'Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Jonathan B. Miller, OFFICE OF THE MASSACHUSETTS ATTORNEY GENERAL, Boston, Massachusetts, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., for Amici Curiae.

14-3057: Bridget E. Coontz, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Chase B. Strangio, James D. Esseks, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Drew Dennis, ACLU OF OHIO, INC., Cleveland, Ohio, for Appellees. Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Lawrence J. Joseph, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, Georgia, Susan L. Sommer, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., New York, New York, Camilla B. Taylor, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Roberta A. Kaplan, Jaren Janghorbani, Joshua D. Kaye, Jacob H. Hupart, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, Thomas D. Warren, BAKER & HOSTETLER LLP, Cleveland, Ohio, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Shannon P. Minter, Christopher F. Stoll, NATIONAL CENTER FOR LESBIAN RIGHTS, Washington, D.C., for Amici Curiae.

14-3464: Eric E. Murphy, Bridget E. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Susan L. Sommer, M. Currey Cook, Keith Hammeran, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., New York, New York, Paul D. Castillo, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., Dallas, Texas, for Appellees. Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Nicholas M. O'Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Paul D. Ritter, Jr., Christopher J. Weber, Robert G. Schuler, KEGLER, BROWN, HILL & RITTER CO., L.P.A., Columbus, Ohio, Lawrence J. Joseph, Washington, D.C., Harlan D. Karp, Tina R. Haddad, Cleveland, Ohio, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Joseph R. Guerra, SIDLEY AUSTIN LLP, Washington, D.C., Emma L. Dill, BRYAN CAVE LLP, San Francisco, California, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, G. David Carter, Joseph P. Bowser, Hunter T. Carter, ARENT FOX LLP, Washington, D.C., Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Harlan D. Karp, Cleveland, Ohio, for Amici Curiae.

14-5291: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, Shannon R. Fauver, Dawn R. Elliott, FAUVER LAW OFFICE, PLLC, Louisville, Kentucky, for Appellees. David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Stanton L. Cave, LAW OFFICE OF STAN CAVE, Lexington, Kentucky, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER, LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP , San Francisco, California, Nicholas M. O'Donnell, SULLIV AN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Joshua A. Block, Chase Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., for Amici Curiae.

14-5297: Joseph F. Whalen, Martha A. Campbell, Kevin G. Steiling, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. William L. Harbison, Phillip F. Cramer, J. Scott Hickman, John L. Farringer, SHERRARD & ROE, PLC, Nashville, Tennessee, Abby R. Rubenfeld, RUBENFELD LAW OFFICE, PC, Nashville, Tennessee, Maureen T. Holland, HOLLAND AND ASSOCIATES, PLLC, Memphis, Tennessee, Regina M. Lambert, Knoxville, Tennessee, Shannon P. Minter, Christopher F. Stoll, Amy Whelan, Asaf Orr, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Appellees. Deborah J. Dewart, Swansboro, North Carolina, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Nicholas M. O'Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Barbara J. Chisholm, P. Casey Pitts, ALTSHULER BERZON LLP, San Francisco, California, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Joshua A. Block, Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, for Amici Curiae. 14-5818: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees. Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, for Amicus Curiae.

Author of Opinion: Judge Sutton joined by Judge Cook

Author of Dissent: Judge Daughtrey

Case Alert Supervisor: Prof. Mark Cooney

    Posted By: Mark Cooney @ 12/01/2014 03:38 PM     6th Circuit     Comments (0)  

November 24, 2014
  Dougherty v. School District of Philadelphia - Third Circuit
Headline: Third Circuit Adopts Broadened View of First Amendment Rights for Government Whistleblowers

Area of Law: First Amendment; Qualified Immunity

Issues Presented:

Does a public employee whistleblower have First Amendment protections when his speech concerns information gained during the course of his employment?

Does a violation of First Amendment rights of a public employee by a public official destroy qualified immunity?

Brief Summary:

Dougherty, a public employee of the Philadelphia School District, was fired after reporting to the Philadelphia Inquirer that the District Superintendent had improperly given a contract for installing security cameras to a company in violation of District procedures. The Third Circuit affirmed the district court in denying the School District and its' officials qualified immunity for their retaliation against Dougherty. The Third Circuit held that Dougherty's speech was entitled to First Amendment protections because the speech was not made pursuant to his duties as a public employee.

The Third Circuit also held that Dougherty had spoken as a citizen with regard to his allegations of impropriety. The Third Circuit reasoned that recent Supreme Court cases had clearly reinforced protection for employees to speak out on matters about which they learn on the job. The Third Circuit, balancing between the disruptive effects of Dougherty's speech and the value of whistleblowing, found in favor of Dougherty and refused to extend qualified immunity on the grounds that First Amendment protections were a clearly established right that School District officials could not violate and be entitled to immunity as public officials.

Extended Summary:

Francis Dougherty, an employee of the Philadelphia School District, was suspended and fired after revealing to the Philadelphia Inquirer that he believed the School District Superintendent had improperly steered a contract for security cameras to a minority-owned business. Dougherty was not involved in the final process for approving the assignment of the contract. After he reported the issue to the Philadelphia Inquirer, School District officials sought to determine the source of the leak. Their activities included hiring counsel, suspending six people including Dougherty, and ultimately firing him. The School District and various named defendant school district officials were denied qualified immunity by the district court. The Third Circuit affirmed the denial of qualified immunity and held both that Dougherty's speech was protected by the First Amendment and that his rights to free speech were clearly established.
The Third Circuit focused on whether Dougherty's whistleblowing was protected speech. The Third Circuit held that Dougherty had not been speaking pursuant to his public duties when he revealed the alleged misconduct of the Superintendent. The Third Circuit distinguished cases where a public employee was obligated to report information up the chain of command or where the speech related to the public employee's job. The Third Circuit refused to apply a "owes its existence to" test and instead adopted a fact intensive practical inquiry. Dougherty, the Third Circuit concluded, had no obligations or responsibilities in fact or under the law and therefore was entitled to First Amendment protection. The Third Circuit further held that the U.S. Supreme Court's recent decision in Lane v. Franks reinforces the holding of previous case law that a public employee may speak as a citizen even when the speech involves the subject matter of his or her employment.
After balancing the interests of the employee and those of the State, the Third Circuit then held that the legitimate interest in protecting whistleblowing was greater than the State's professed interest in promoting an efficient and harmonious workplace. The Third Circuit specifically distinguished cases where an employee was a proxy or alter ego for another, finding that Dougherty was removed enough from the District Superintendent so as to not tip the balance against him. The Third Circuit rejected the argument that Dougherty's actions were disruptive enough to tip the balance against him because the disruptions were minimal until the School District hired counsel, suspended multiple administrators, and subsequently fired Dougherty. Disruption, the Third Circuit held, cannot simply be the result of attempts to suppress the speech at issue.
Lastly the Third Circuit found that First Amendment protections are a clearly established right for public employees and that therefore the School District and its' officials were not entitled to qualified immunity because they had fair notice that retaliation against Dougherty for his speech would not be protected.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/133868p.pdf

Panel: Fisher, Jordan, Hardiman, Circuit Judges

Argument Date: September 9, 2014

Date of Issued Opinion: November 21, 2014

Docket Number: No. 13-3868

Decided: Affirmed

Case Alert Author: Philip Jones

Counsel:

Bacardi L. Jackson, Esq., Carl E. Jones, Jr., Esq., Joe H. Tucker, Jr., Esq., Corey M. Osborn, Esq., Christopher A. Lewis, Esq., Will J. Rosenzweig, Esq. (argued) for Appellants

Alice W. Ballard, Esq., Lisa A. Mathewson, Esq. (argued) for Appellees

Author of Opinion: Fisher, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 11/24/2014 10:35 AM     3rd Circuit     Comments (0)  

  United States of America v. Dwayne Thompson - Third Circuit
Headline: Delay in presenting a criminal defendant to a magistrate judge is unreasonable where the government exceeds the six-hour window if the government is in the pursuit of cooperation.

Area of Law: Federal Rules of Criminal Procedure

Issues Presented: Whether a law enforcement officer during a traffic stop had reasonable, articulable suspicion to extend a traffic search if the defendant was acting suspicious according to an officer's previous experience? Whether the government can exceed the statutory six-hour period of presenting a criminal defendant in front of a magisterial judge if the government is in pursuit of cooperation with the defendant?

Brief Summary: On June 29, 2007, Dwayne Thompson ("Thompson") was stopped by an officer of the Texas Department of Public Safety for exceesive speed limit on I-40, known to the law enforcement community as a corridor for narcotics, weapons, and money. The officer, Livermore, believed Thompson to be nervous during the traffic stop, and called a K-9 detection team. The K-9 alerted the officers at first pass. The officer found a large amount of marijuana in the bed of Thompson's truck and later six-kilograms of cocaine and arrested Thompson. Thompson was charged locally for the drugs, posted bond, and was released.
A few weeks later, Drug Enforcement Administration ("DEA") agents executed a search warrant at Thompson's residence, where the DEA agents found two kilograms of cocaine. The DEA agents arrested Thompson. Nearly 12 hours after his arrest, the DEA agent presented Thompson with a written waiver of his right to prompt presentment in front of a magisterial federal judge, which Thompson signed. Thompson was delivered for presentment nearly 48 hours after his initial arrest. Thompson pled guilty but retained his right to appeal the denial of the motion to suppress evidence seized at the Texas traffic stop and the denial of the motion to suppress statements obtained following the execution of search warrants at his home due to the delay to in presentment.
The Third Circuit affirmed the district court's ruling denying the motion to suppress the evidence from the Texas traffic stop. The Court reasoned that the officer had a reasonable and articulable suspicion to believe that Thompson was engaged in an illegal activity to extend Thompson's traffic stop due to the totality of the circumstances and the officer's previous experience with traffic stops. The Third Circuit vacated the district court's ruling denying the motion to suppress the confession. The Court explained that the government had plenty of time to give Thompson a waiver or present him in front of a magisterial judge after his arrest before the statutory limit of six hours, and the government seeking a criminal defendant to cooperate is an unreasonable delay according to the statute and the constitution.

Significance (if any):

Extended Summary: On June 29, 2007, Thompson was stopped by Trooper Livermore of the Texas Department of Public Safety for going over the speed limit on I-40, known to the law enforcement community as a corridor for narcotics, weapons, and money. Livermore believed Thompson to be nervous during the traffic stop, noticing lack of eye contact and a shaky voice, and asked to search the car. After Thompson refused, Livermore called a K-9 detection team. The K-9 alerted the officers at first pass. Livermore found a large amount of marijuana in the bed of Thompson's truck. Livermore arrested Thompson and later discovered six kilograms of cocaine in Thompson's truck. Thompson was charged locally for the drugs, posted bond, and was released.
A few weeks later, Drug Enforcement Administration ("DEA") agents executed a search warrant at Thompson's residence, where the DEA agents found two kilograms of cocaine. The DEA agents arrested Thompson, read him his Miranda rights, but did not have a separate Miranda waiver. At the end of the search, the DEA agents drove Thompson to the DEA field office in Los Angeles, which took approximately an hour and half. After processing, Thompson informed a DEA agent he was willing to cooperate. This was over six hours after his arrest. At this point, two DEA agents began interviewing Thompson about various cocaine sources and additionally tried to set up a reverse-buy-bust with Thompson's cooperation. Some 12 hours after his arrest, the DEA agent presented Thompson with a written waiver of his right to prompt presentment in front of a magisterial federal judge, which Thompson signed. Thompson was delivered for presentment nearly 48 hours after his initial arrest. Thompson pled guilty but retained his right to appeal the denial of the motion to suppress evidence seized at the Texas traffic stop and the denial of the motion to suppress statements obtained following the execution of search warrants at his home due to the delay to in presentment.
With respect to the motion to suppress the evidence at the Texas traffic stop, the Third Circuit determined that, in the light of Livermore's previous experience and the totality of the circumstances, he had a reasonable and articulable suspicion to believe that Thompson was engaged in an illegal activity to extend Thompson's traffic stop. In affirming the district court, the Third Circuit factored in the location of the stop in the Texas Drug Corridor and the nervous manner in which Thompson was acting.
The Third Circuit than examined whether the DEA's hold of Thompson for 12 hours before presenting him with a waiver of presentment, or in the alternative with presenting him in front of a magisterial judge after his arrest, was reasonable. The government argued it could not present Thompson to a judge because of the amount of time it took to search his residence, transport him to the DEA field office, and because the judge had a full docket. Additionally, the government maintained the delay in presentment was reasonable because it was for Thompson's cooperation in the reverse-buy-bust. The Third Circuit disagreed. The Third Circuit explained that the government could have put Thompson in front of a magisterial judge near his home, before processing him at the DEA field office, or shortly after the processing, or in the alternative had Thompson sign a waiver much earlier than 48 hours after his arrest. In addition, the Court declined to accept the government's argument with respect to the pursuit of cooperation, because there is almost no difference than the government in pursuit of cooperation and the government interrogating a suspect, and the difference would be solely the subjective intent of the officers. The Third Circuit vacated and remanded the district court's denial of the motion to suppress Thompson's confession.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/131874p.pdf.

Panel (if known): McKee, Chief Judge, Fuentes, and Greenaway, Jr., Circuit Judges.

Argument Date: June 25, 2014

Argument Location: Philadelphia, PA

Date of Issued Opinion: November 19, 2014

Docket Number: No. 13-1874

Decided: Affirmed in part and Vacated and remanded in part.

Case Alert Author: Ilya Gomelsky

Counsel: Michael L. Ivory, Esq., Rebecca R. Haywood, Esq., and David J. Hickton, Esq. for Appellee; Sarah S. Gannett, Esq., Brett G. Sweitzer, Esq. and Leigh M. Skipper, Esq. for Appellant.

Author of Opinion: Greenway, Jr., Circuit Judge.

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 11/24/2014 10:32 AM     3rd Circuit     Comments (0)  

November 18, 2014
  Patricia Franza v. Royal Carribbean-11th Circuit
Headline: Eleventh Circuit holds that a passenger may use actual or apparent agency principles to hold a cruise line vicariously liable for onboard medical negligence.

Area of law: Maritime

Issue: Whether a passenger may use apparent or actual agency principles to impute liability to a cruise line for onboard medical negligence.

Brief Summary: Appellant filed suit for medical negligence by a doctor and nurse on a cruise ship. The district court, finding no basis for either the actual agency or apparent agency claim, dismissed the complaint. The Eleventh Circuit reversed and remanded for further proceedings after finding that the claim could be brought under either basis.

Extended Summary: Pasquale F. Vaglio ("Vaglio"), an elderly cruise ship passenger, fell and suffered head injuries while a passenger on the vessel "Explorer of the Seas" which was docked in Bermuda. Vaglio sought medical attention from the ship's onboard nurse and doctor. He was ultimately transported to a hospital in Bermuda where he died. Patricia Franza ("Franza"), Vaglio's daughter filed a complaint alleging Royal Caribbean Cruise, Ltd. was vicariously liable for the purported negligence of the ship's doctor and its nurse, under actual or apparent agency theories. The district court applied the actual agency rule set forth in Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988) as a basis to dismiss the actual agency claim. The court also dismissed the apparent agency claim as inadequately pled.

The Eleventh Circuit, in a case of first impression, reversed. The appellate court found the complaint set out a basis for holding the cruise line liable under actual authority and rejected the line of authority relied on by the district court. In doing so, the court found the reasons for the Barbetta rule are no longer valid. Specifically, the court noted that passengers were regularly permitted to invoke vicarious liability in other maritime tort cases. Additionally, the court pointed to the widespread application of vicarious liability in medical negligence cases. Accordingly, the Eleventh Circuit found that the allegations of the complaint were sufficient to withstand the Rule 12(b)(6) motion to dismiss. The court also reversed as to apparent authority since the factual allegations supported a finding that the elements were adequately pled. Thus, the cause was reversed and remanded for further proceedings.

To view full opinion:

Text

Panel:Marcus and Anderson, Circuit Judges, and Goldberg (United States Court of International Trade Judge, sitting by designation).

Argument: May 22, 2014

Date of Issued Opinion: November 10, 2014

Docket Number: 13-13067

Decided: Reversed and Remanded

Case Alert Author: Arlene Marie Hernandez, Alain Enrique Roman, Greg Light, and Asheley Yvette Figueroa

Counsel: Phillip D. Parrish for Appellant Patricia Franza
Rodolfo Sorondo, Jr. for Appellee Royal Caribbean Cruises Ltd.

Author of Opinion: Judge Marcus

    Posted By: Gary Kravitz @ 11/18/2014 01:18 PM     11th Circuit     Comments (0)  

November 17, 2014
  Citizens United v. Gessler- Tenth Circuit
Headline: Tenth Circuit issues preliminary injunction against Colorado campaign disclosure laws, rules nonprofit group Citizens United qualifies for exemption from disclosure for film

Areas of Law: Constitutional Law

Issues Presented:

1. Does barring Citizens United from qualifying for an exemption from campaign disclosure laws as a media entity for its film, Rocky Mountain Heist, and its advertisements violate Citizens United's First Amendment rights?

Brief Summary:

Citizens United sought review of the district court's denial of a preliminary injunction barring the Colorado Secretary of State from enforcing its disclosure laws against its film, Rocky Mountain Heist, and its advertisements. Citizens United asserted that the Colorado disclosure provisions violated the First Amendment both on its face and as applied to Citizens United because it is treated differently from exempted media. The court held that the disclosure laws were likely to be found unconstitutional as applied to the film, and that a preliminary injunction should have been granted. The case was reversed and remanded. Judge Phillips issued an opinion concurring in part and dissenting in part, agreeing with the majority that the advertisements were not exempted from disclosure laws, but disagreeing with the majority's determination that the film was exempted from disclosure laws.

Extended Summary:

Non-profit organization Citizens United brought suit against the Colorado Secretary of State, challenging Colorado disclosure provisions as contrary to the First Amendment both on their face and as applied to Citizens United because it is treated differently from various media that are exempted from the disclosure provisions. The suit arises out of a film titled Rocky Mountain Heist, which is to be distributed through DVD, television, online streaming and downloading. Some of the advertising for the film mentions Colorado officials running for office, and shows footage of events in favor of, or against, specific candidates. The film falls under what Colorado's campaign-practices laws term "electioneering communications" and "independent expenditures." Citizens United also asked for a preliminary injunction against enforcing the provisions that do not apply to exempted media. The district court denied that injunction, giving rise to this appeal.

The majority reversed the district court without addressing Citizens United's facial challenge to the laws. The majority explained that because Citizens United was likely to succeed on the merits of the case, that it was entitled to the injunction. The court noted three things in particular in support of its decision that the Secretary had not shown a substantial relation between the government's interest in the disclosure requirements and treating Rocky Mountain Heist as an "electioneering communication" or "independent expenditure": "(1) the Colorado disclosure exemptions for printed periodicals, cable and over-the-air broadcasters, and Internet periodicals and blogs, (2) the rationale presented for these exemptions, and (3) Citizen United's history of producing and distributing two dozen documentary films over the course of a decade." Citizens United failed to show, however, that its advertisements should be exempted, because it failed to show how it would be treated differently from exempted media.

The majority began by noting that "electioneering communications are statements about candidates made shortly before an election," while expenditures are "money spent to endorse or oppose a candidate." It also quoted from the Colorado Constitution and Colorado's Fair Campaign Practices Act for the definition of independent expenditure as "an expenditure that is not controlled by or coordinated with any candidate or agent of such candidate." It also noted that the term "candidate" only means candidates for office in Colorado. Under the Colorado Constitution, any person who spends $1000 or more in one year on electioneering communications must make a report to the Secretary that includes the amounts spent, the name of the candidate in the communication, and the name, address, occupation and employer of anyone who donates more than $250 per year for the communication. The reports are due every two weeks in the two months before a general election, and a final report must be submitted 30 days after the election.

The court noted that the Secretary admitted an oversight of this section of the disclosure requirements at oral argument, explaining that he does not require disclosure because there is no communicative aspect to the production. Further, the disclosure requirements only require disclosure of amounts that are donated specifically for electioneering communications.

With respect to independent expenditures, the Colorado Constitution states that any person who makes an independent expenditure of $1000 or more in one year must give notice to the Secretary describing the use of the independent expenditure, stating the amount and the candidate the expenditure is intended to support or oppose. Anyone who wishes to make an independent expenditure or accept a donation to make an independent expenditure must create a committee and register with the secretary. If the person is a corporation, it must also report details about its corporate form and ownership structure. Finally, the person must maintain a separate bank account for independent expenditure purposes.

Any person that makes more than $1000 of independent expenditures in one year must report the amounts spent and the name, address, occupation, and employer of anyone who donated more than $250 for the making of an independent expenditure. Additionally, any donation over $20 for the making of an independent expenditure during the reporting period must be disclosed. The same timeline for electioneering communications applies, except that expenditures made within 30 days of a general or primary election must be reported 48 hours after obligating the money for an independent expenditure.

The majority explained that the expenditure laws would require disclosure of production costs if Rocky Mountain Heist attacked or supported a candidate, but did not require donations to be disclosed if they were not specifically earmarked for the purpose of supporting or attacking Colorado candidates.

Next the majority noted that any person who feels there has been a violation of the disclosure laws may seek enforcement by filing a complaint with the Secretary, who then refers it to an administrative law judge. If the judge finds a violation and the Secretary does not file an enforcement action within 30 days, the complainant may file suit in state district court. The penalty for violating the disclosure requirements is $50 per day for every day that the information is not filed. If the party fails to file three or more reports in a row, it is subject to a penalty of $500 per day for each day the report is not filed.

The court then set forth the exceptions excluded from the definition of expenditure listed in the Colorado Constitution and the statutes. It also noted that there are four exemptions from the definition of electioneering communication, three of which are practically the same as the expenditures exemption. The court noted that the Secretary has interpreted the first two exemptions broadly - for printed periodicals and broadcast facilities. Although there is a question as to whether something like a blog is a periodical, the Secretary stated that he uses court decisions as guidance for his decisions. The court noted that not all campaign-related activity by exempted media qualifies for an exemption. For example, an advertisement that expressly states support for a candidate, or opposes one may be treated as an electioneering communication or expenditure.

Citizens United filed for a Declaratory Order with the Secretary asserting that Rocky Mountain Heist and related advertisements were not electioneering communications or expenditures, arguing that the Federal Election Commission granted it an exemption from disclosure, and noting that the Federal Election Campaign Act of 1971 had definitions of electioneering communications and expenditures similar to Colorado's. The Secretary denied the order, holding that the film and advertising did not qualify for an exemption as print media, and that Citizens United is not a broadcast facility. Further, it stated that the regular-business exemption did not apply because the exemption only applied to persons who distribute content as a service, relying on Colorado Citizens for Ethics in Government v. Committee for the American Dream, 187 P.3d 1207 (Colo. Ct. App. 2008). Additionally, the Secretary stated that it could not read a "press exemption" similar to the FEC's exemption for Citizen United's films into the plain language of Colorado law. The Secretary determined it was an electioneering communication, but did not determine whether it was an independent expenditure. Rather than having the Order reviewed by a Colorado Court, Citizens United filed suit in federal court and requested an injunction.

Citizens United attacked the exemptions for print and broadcast media arguing that the exemptions are facially invalid because they discriminate based on the identity of the speaker and alternatively that Citizens United should qualify for the same exemptions as print and broadcast media.

The majority stated that the court must consider "(1) the likelihood that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the relative weight of the harm alleged by the movant and the harm to the non-moving party; and (4) the public interest" in deciding whether to grant a preliminary injunction. The standard of review of a court denying a preliminary injunction is abuse of discretion.

The majority did not address Citizens United's facial challenge, but stated that it did agree with Citizens United's position on the as-applied challenge. The majority began by stating that the laws had to reach the standard of exacting scrutiny.

The majority considered the government's interest in disclosure, which the Secretary stated were to ensure that electors can discern who is attempting to influence their votes and to discourage corruption by making independent expenditures public record. The majority recognized that the Supreme Court had already recognized that disclosures is helpful to keep voting citizens informed. Citizens United v.Fed. Election Comm'n , 558 U.S. 310 368 (2010), but did not accept the Secretary's assertion of the need for disclosure laws to prevent corruption. The Secretary relied on McCutcheon v. Federal Election Commission, 134 S. Ct. 1434, 1459 (2014) and Buckley v. Valeo, 424 U.S. 1 at 67 (1976), but the court explained that these cases were distinguishable because the disclosure requirements applied to more than independent expenditures. Further, the majority pointed to the Supreme Court's decision in Citizens United, where the Court determined that independent expenditures are not tied to corruption. Under Citizens United, the majority stated that the Secretary failed to show how disclosures of independent expenditures would deter quid pro quo corruption.

Next the majority explained the rationale for exempting the media. No reporting is required for news or opinion pieces in periodicals, or for letters to the editor or op-eds. Additionally, newspapers and blogs are considered "printed" even if they have an ideological bias. Further, opinions stated in broadcasts are exempt. News reports by broadcast media are treated the same as news reports in print media by the Secretary even though there is not a stated exemption for them.

The Secretary offered a number of explanations for the media exemptions. The first -- that corporations which are part of the media industry are different than those that are not in the news business -- the court determined was not valid after the Supreme Court's decision in Citizens United, and that such a distinction cannot be the basis for disparate treatment under the First Amendment. The second, that political advertisements disrupt the transparent, balanced, and accountable manner of journalism, the court stated was invalid because newspapers and broadcast station are not all transparent, balanced and accountable. The third justification, that the electorate can properly assess a statement by exempted media because it is familiar with the source, the court stated does have some merit, and stated that it was at least reasonable to allow a media exemption on this ground. The length of time and frequency of communications with the electorate gives the electorate the ability to evaluate the source. The Secretary, however, has not explained why Citizens United does not qualify for this same exemption.

Although the Secretary analogized Citizens United to "drop-in" advocates, the majority analogized Citizens United to exempted blogs and opinion shows because of their history of producing works similar to TV reports or magazines than to advertising clips. The length of time and variety of topics provide information about the organization that the public may use for evaluation.

The majority then addressed the dissent's critique that it should not focus on the disclosure but on the substantial relation between the State's interest and the disclosure scheme as a whole. It responded by explaining that this approach precludes review of as-applied challenges, and noted that courts often uphold laws while eliminating them in specific instances. Further, the dissent argued that a statutory imposition can withstand constitutional scrutiny when it recognizes exemptions because statutes can be constitutionally sound when there are no exemptions. The majority responded that exemptions call the validity of a governmental interest into question because it suggests that the governmental interest may be narrower than it asserts. The majority explained that in Greater New Orleans Broadcasting Ass'n v. U.S., 527 U.S. 173 (1999), the Supreme Court struck down a ban on broadcasting advertisements for casino gaming because the statute allowed for exemptions for other forms of legal gaming that undermined the asserted governmental interests. Finally, the majority stated that the dissent's concerns about figuring out who qualifies for a media exemption was not a sufficient reason to avoid deciding a constitutional question, and noted that this is an issue that the Secretary has already had to deal with.

The majority stated that its holding does not apply to advertisements for Rocky Mountain Heist. The advertisements do not come within the media exemption and Citizens United has not shown that it should be treated differently from exempted media.

Finally, the court held that the other issues regarding the preliminary injunction were easily resolved. Citizens United would suffer irreparable injury if it were forced to comply with the disclosure provisions. Additionally, because the challenge includes issues of constitutional law, the government's interests do not outweigh Citizens United's interest in protecting its constitutional rights. Further, the public interest is always protected in preventing the violation of constitutional rights. Thus, the preliminary injunction factors weight in favor of Citizens United.

Judge Phillips issued an opinion concurring in part and dissenting in part. He agreed with the majority that Citizens United should comply with the disclosure requirements for the advertisements related to Rocky Mountain Heist, but dissented from the majority opinion that the disclosure requirements violated Citizens United's First Amendment rights.

Judge Phillips agreed that exacting scrutiny was the proper standard of review, and that the government interest in ensuring that electors are able to evaluate who is trying to influence their votes is a sufficient reason to uphold the disclosure requirements against a First Amendment challenge. Judge Phillips, however, agreed with the reasoning of the district court that the governmental interest and the disclosure scheme should be evaluated as a whole as opposed to as a "single hypothetical."

Judge Phillips criticized the majority's approach to the case because he believes it is essentially a First Amendment/Equal Protection legal theory, for which the court cites no cases. Additionally, Judge Phillips asserts that the Denver Post is distinguishable from Citizens United because unlike subscribers, advertisers or lenders from the Post, voters may wish to know who is contributing to the making of Citizens United's films. Furthermore, Judge Phillips believes that the assumption that Citizens United is being treated differently from exempted media is an error. Judge Phillips also pointed out that traditional news organizations do not do fundraising for advocacy pieces in the same way that Citizens United does.

Judge Philips also criticized the majority's remedy upon finding that the disclosure scheme is contrary to the First Amendment, because it should either sever the media exemption or strike the disclosure scheme altogether. Judge Phillips stated that the majority's approach of essentially adding in a category of entities that have a right to an exemption is very close to lawmaking.

Finally, Judge Phillips states that although the majority does not adopt this reasoning explicitly, he disagrees with Citizens United's argument that the FEC advisory opinions supports its position. The advisory opinions grant the exemption under the federal disclosure provisions, not under the First Amendment.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-1387.pdf

Panel: Hartz, Tymkovich, Phillips

Date of Issued Opinion: November 12, 2014

Docket Number: No. 14-1387

Decided: Decision by the district court to deny a preliminary injunction was reversed and remanded.

Counsel:

Theodore B. Olson, Gibson, Dunn & Crutcher LLP, (Matthew D. McGill, Amir C.
Tayrani, Lucas C. Townsend, Gibson, Dunn & Crutcher LLP, and Michael Boos,
Citizens United, with him on the brief), Washington, D.C., for Plaintiff -Appellant.

Matthew D. Grove, Assistant Solicitor General, (Daniel D. Domenico, Solicitor General; Leeann Morrill, First Assistant Attorney General; Kathryn A. Starnella, Assistant Attorney General; with him on the brief), Public Official Unit, State Services Section, Denver, Colorado, for Defendants - Appellees.

Martha M. Tierney and Edward T. Ramey, Heizer Paul LLP, Denver, Colorado, filed an Intervenor-Defendants' Brief for Colorado Democratic Party, Garold A. Fornander, Lucía Guzmán, and Dickey Lee Hullinghorst.

David R. Fine and Lino S. Lipinsky de Orlov, McKenna Long & Aldridge LLP, Denver, Colorado; Luis A. Toro and Margaret G. Perl, Colorado Ethics Watch, Denver, Colorado, filed an amicus curiae brief for Citizens for Responsibility and Ethics in Washington, Colorado Common Cause, Colorado Ethics Watch, and Progressive United.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 11/17/2014 09:22 AM     10th Circuit     Comments (0)  

November 14, 2014
  Priests for Life et al. v. HHS
Headline: D.C. Circuit joins other circuits in concluding that opt-out provision for Affordable Care Act's contraceptive coverage requirement does not itself violate RFRA.

Area of Law: Religious Freedom Restoration Act; First Amendment

Issue(s) Presented: Whether the procedure allowing religious nonprofit organizations to opt out of providing contraceptive coverage itself burdens free exercise of religion in violation of RFRA.

Brief Summary:

Plaintiffs, eleven Catholic nonprofit organizations, including Priests for Life, the Archdiocese of Washington, Thomas Aquinas College, and Catholic University of America, employ both Catholics and non-Catholics and provide health insurance to their employees and students through a variety of self-insured and third-party health plans. Plaintiffs filed two actions in August and September 2013 objecting to the contraceptive coverage mandate of the Patient Protection and Affordable Care Act ("ACA") and the accommodation mechanism that allows nonprofit religious organizations to opt out of the contraceptive coverage requirement. They contended that the contraceptive coverage requirement and accommodation fail adequately to dissociate them from the provision of contraceptive coverage, thus substantially burdening their religious exercise in violation of the Religious Freedom Restoration Act ("RFRA"). They also claimed that the ACA, by requiring the insurance providers with whom Plaintiffs contract to provide contraceptive coverage, effectively requires Plaintiffs to facilitate access to contraception, again in violation of RFRA.

The U.S. District Court for the District of Columbia granted the government's motion for summary judgment as to all Plaintiffs except Thomas Aquinas College, finding that the accommodation effectively severed organizations that offer their employees or students an insured group health plan from participation in the provision of the contraceptive coverage. However, the court granted summary judgment in favor of Thomas Aquinas College on its RFRA claim, finding that, because it was self-insured, the contraceptive requirement could require it to provide contraceptive coverage if it could not find a third-party insurer to administer that coverage. All Plaintiffs appealed, and the government cross-appealed the ruling for Thomas Aquinas College. The United States Court of Appeals for the District of Columbia Circuit upheld the challenged regulations.

The D.C. Circuit began by noting that the accommodation under challenge was precisely the middle-ground alternative the Supreme Court considered in Hobby Lobby and assumed would not impinge on for-profit corporations' religious beliefs. The D.C. Circuit observed, moreover, that the Hobby Lobby Court had noted that such an accommodation would further the government's interest in providing contraceptive coverage without hindering the corporations' religious beliefs.

Looking at the specifics, the D.C. Circuit concluded that it, not Plaintiffs, was the proper entity to evaluate the substantiality of the burden on Plaintiffs' religious beliefs. The court then found that the regulatory accommodation imposed only de minimis burden on eligible organizations, requiring only that they submit a single-page form communicating their eligibility in order to fully extricate themselves from the burden of providing contraceptive coverage to employees. Because the opt-out mechanism relieves Plaintiffs of any obligation to contract, arrange, or pay for access to contraception, the court concluded that it did not constitute a substantial burden on their religious exercise under RFRA and thus was not subject to strict scrutiny. In doing so, the court agreed with the Seventh Circuit in University of Notre Dame v. Sebelius, 743 F.3d 547, 559 (7th Cir. 2014), and the Sixth Circuit in Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014).

Turning to Thomas Aquinas College, the self-insured Plaintiff, the court rejected as premature the argument that the regulations obligated Plaintiff to find new third-party administrators (TPAs) in the event their existing TPAs declined to assume responsibility for contraceptive coverage. Moreover, the court noted that the government had clarified on appeal that, if an organization's TPA declined to provide contraceptive coverage, the regulations would not require the organization to identify and contract with a new one.

The court next concluded that, even if the requirement were subject to strict scrutiny under RFRA, it would survive. The court found that the contraceptive requirement and accommodation furthered compelling government interests in improving public health and furthering gender equality, assuring women equal access to the benefits of preventive health care coverage by providing contraceptive services seamlessly together with other health services. The court also concluded that the accommodation was the least restrictive means of furthering this interest, allowing the government to pursue its objectives while imposing only a minimal burden on religious nonprofit organizations.

Finally, the court rejected Plaintiffs' Free Exercise and other First Amendment arguments on the basis that the contraceptive coverage requirement was a religiously neutral part of a law of general application that did not target religious organizations and that the notice requirement did not constitute compelled speech.

For the full text of the opinion, see http://www.cadc.uscourts.gov/i...le/13-5368-1522271.pdf

Panel: Rogers, Pillard, and Wilkins

Argument Date: May 8, 2014

Date of Issued Opinion: November 14, 2014

Docket Number: 13-5368

Decided: affirmed in part

Case Alert Author: Ripple Weistling

Counsel: Robert J. Muise, Noel J. Francisco, Eric Dreiband, and David Yerushalmi for appellants. Mark B. Stern, Stuart F. Delery, Ronald C. Mahen Jr., Beth S. Brinkmann, Alisa B. Klein, and Adam C. Jed for Appellees.

Author of Opinion: Pillard

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 11/14/2014 02:59 PM     DC Circuit     Comments (0)  

November 12, 2014
  USA v. Robert Franz - Third Circuit
Headline: The Exclusionary Rule of the Fourth Amendment Does Not Apply When an Agent Executing an Otherwise-Valid Search Warrant Fails to Provide the Homeowner a List of Items Sought, If That Agent Does Not Do So Deliberately, Recklessly, or With Gross Negligence.

Area of Law: Criminal Law

Issue Presented: Whether the exclusionary rule applies when agents executing an otherwise-valid search warrant fail to provide to the homeowner a list of items sought.

Brief Summary:
Robert Franz appeals from his conviction on one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). The primary issue on appeal is whether the exclusionary rule applies when an agent executing an otherwise-valid search warrant fails to provide the homeowner a list of items sought. The Court holds that when that agent does not act deliberately, recklessly, or with gross negligence, the exclusionary rule does not apply.

Franz also challenged a separate warrant for the search of his computer. The Court denied this challenge, finding that Franz waived his right to appeal this issue by failing to timely appeal. The Court also rejected Franz's argument that evidence shown to the jury but later stricken from the case was unfairly prejudicial because the court sufficiently instructed the jury not to consider it and the jury found Franz not guilty on the charge related to that evidence. Finally, the Court denied Franz's arguments that the evidence was insufficient to send the case to the jury. Accordingly, the Third Circuit affirms Franz's conviction.

Extended Summary:

In 2009, the Bureau of Land Management (BLM) was investigating Robert Franz on the possibility that he had stolen a wooly mammoth tusk and other paleontological items from BLM-managed land in Alaska and smuggled them to his house in Pennsylvania. Based on evidence obtained from an undercover investigation, the BLM sought and obtained a search warrant ("The Nardinger Warrant") for Franz's house with the assistance of federal prosecutors. Where the face sheet of the warrant asked for a description of the property that the agents expected to seize, it read, "See attached sheet," referring to Attachment B which listed a series of items to be seized. The search warrant, affidavit, and accompanying papers were sealed.

When BLM agents executed the warrant, Franz was present. Agent Nardinger provided Franz with a copy of the face sheet of the warrant but did not give him copies of the warrant attachments. Nardinger mistakenly believed that because the warrant and affidavit had been sealed, he could not reveal those attachments. Nardinger nonetheless explained to Franz the circumstances giving rise to the warrant and thoroughly described the items the warrant authorized him to seize. During the search, agents noticed several framed photographs of young, nude girls on the walls of Franz's house, and they came across pamphlets containing several images of nude minors engaged in sexually explicit conduct. An agent also noticed a file thumbnail depicting a partially nude girl and saw another file name that suggested the presence of child pornography. After consulting federal prosecutors, the agents collected the contraband that was in plain view. They referred the child pornography case to the FBI.

The second warrant in question ("The Herrick Warrant") was obtained to search the digital storage devices and other items that BLM had seized. This warrant was sealed, and the government did not provide a copy to Franz until thirty-one months after issuance and over two months after Franz's indictment. This warrant produced two digital images found on Franz's external hard drive that, along with the pamphlets, served as the basis for the charges filed against Franz. A grand jury indicted Franz for two child pornography crimes: receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Following a jury trial, he was convicted of the first charge and acquitted of the second.

The Third Circuit Court first addressed and rejected Franz's challenge of the Nardinger Warrant. The Court agreed with the District Court that the warrant was facially valid when issued but that the execution of it violated Franz's Fourth Amendment rights because when it was presented to Franz, it did not contain a particularized list of items to be seized. The Court determined that the important question was whether that violation necessitated the suppression of the evidence obtained pursuant to the Nardinger Warrant. Franz argued that the exclusionary rule applies without exception to facially invalid warrants, and therefore, that no analysis into the agent's conduct is allowed. The Court disagreed, holding that there is no need to exclude evidence based on Nardinger's mistake in failing to present the list of items to be seized. Further, the Court rejected Franz's argument that a good-faith analysis was unnecessary.

The Court noted that while Third Circuit case law has not always been clear on the need to consider good faith in regards to the exclusionary rule, the Supreme Court's and Third Circuit's precedents have been consistent in requiring case-specific analysis of whether the exclusionary rule applies. The purpose of the Fourth Amendment exclusionary rule is to deter law enforcement from unreasonable searches and seizures by preventing the government from relying at trial on evidence obtained in violation of the Constitution. However, because of the high cost of hiding crucial evidence from a fact-finder, suppression of evidence has always been a last resort. Therefore, it is only used when law enforcement exhibits deliberately, recklessly, or grossly negligent disregard for Fourth Amendment rights. When the police act with an objectively reasonable, good-faith belief that their conduct is lawful, or when their conduct involved only simple, isolated negligence, the exclusionary rule is not applied. Accordingly, the Court considers not only any defects in the warrant but also the officer's conduct in obtaining and executing the warrant and what the officer knew or should have known.

The Third Circuit agreed with the District Court that Nardinger's conduct was objectively reasonable in seeking and obtaining a valid warrant, acting in consultation with federal prosecutors, and explaining to Franz what items the warrant authorized him to search for and seize. Further, Franz presented no evidence that the constitutional violation in question was recurring or systematic, as Nardinger was an inexperienced agent who made an isolated mistake because of the unclear language of the order sealing the attachment. Nardinger did not act deliberately, recklessly, or with gross negligence in executing the warrant in violation of Franz's Fourth Amendment rights. Therefore, excluding the resulting evidence would provide little deterrent effect. Accordingly, the Third Circuit affirmed the denial of Franz's motion to suppress the Nardinger Warrant.

The Court next rejected Franz's challenge to the Herrick Warrant based on the argument that Franz did not receive a copy of it or its supporting documents until thirty-one months after it was executed. He averred that this failure to serve the warrant at the time of the search violated Rule 41 of the Federal Rules of Criminal Procedure and his right to due process. The Court agreed with the government's response that Franz waived his challenge to the Herrick Warrant by failing to timely raise it before the District Court. Raising this challenge in his motion for reconsideration following the District Court's denial of his motion to suppress the aforementioned evidence was not sufficient to preserve the issue for appeal.

Next, the Court turned to the pamphlets and Franz's remaining motions. Franz argued that the District Court abused its discretion when it initially admitted but later excluded the pamphlets from evidence. The Third Circuit Court disagreed for two reasons. The first was that the District Court's curative instructions were clear, comprehensive, and direct, and they were sufficient to address the withdrawal of the pamphlets. The second reason was that the jury acquitted Franz of the possession charge, the only charge the pamphlets were used to support. Therefore, any error in the admission of the pamphlets did not contribute to Franz's conviction on the charge for receipt of child pornography.

Finally, the Court found that the evidence to support his conviction was sufficient. Franz contended that the government failed to establish the jurisdictional nexus, mens rea, and sexually explicit nature of the digital image required for the charge of which he was convicted. The Court found that a rational juror could have concluded that the government had proven the jurisdictional element of the crime beyond a reasonable doubt by providing evidence that the image was downloaded from the internet, a channel and instrumentality of interstate commerce. There was also sufficient evidence to show that Franz's receipt of the image was "knowing." Finally, there was sufficient evidence to establish that the image was of a sexually explicit nature according to both common sense and the six Dost factors. Specifically, the focal point of the image is the child's genitals; the image depicts a child in a bedroom, on a bed, a sexually suggestive setting; the child's legs are spread and her genitals are exposed; the child is only not wearing any sexually suggestive clothing because she is wearing nothing at all; the child's pose can be understood as suggesting a willingness to engage in sexual activity; and all of these facts suggest that the image was intended to elicit a sexual response in the viewer.

Because the District Court did not err in denying Franz's motions to suppress; the admission of the pamphlets did not contribute to Franz's conviction; and the evidence was sufficient to support the conviction, the Third Circuit Court affirmed Franz's conviction for receipt of child pornography.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/132406p.pdf.

Panel (if known): Fisher, Jordan, and Hardiman, Circuit Judges

Argument Date: September 9, 2014

Date of Issued Opinion: November 4, 2014

Docket Number: No. 13-2406

Decided: Affirmed

Case Alert Author: Jaclyn Poulton

Counsel:
Counsel for Appellant: Richard Q. Hark
Counsel for Appellee: Alicia M. Freind (Office of United States Attorney)

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 11/12/2014 03:16 PM     3rd Circuit     Comments (0)  

November 4, 2014
  Mohamed v. Holder -- Fourth Circuit
Headline: Failure to Register as a Sex Offender Is Not a Crime of Moral Turpitude

Area of Law: Immigration, Criminal Law

Issue Presented: Whether failure to register as a sex offender is a crime "involving moral turpitude" as the term is used in 8 U.S.C. § 1227(a)(2)(a)(ii).

Brief Summary: Khalid Mohamed has been a lawful permanent resident of the U.S. since 2003. In 2010, Mohamed pled guilty to sexual battery in Virginia. The following year Mohamed was convicted of failing to register as a sex offender. Thereafter, the government initiated removal proceedings based on 8 U.S.C. § 1227(a)(2)(a)(ii) of the Immigration and Naturalization Act, which authorizes the deportation of any alien "convicted of two or more crimes of moral turpitude."

Mohamed contested his removal claiming his failure to register as a sex offender was not a crime of moral turpitude. The Board of Immigration Appeals (BIA) rejected Mohamed's appeal, relying on precedent set in Matter of Tobar-Lobo. In that case, the BIA held that failure to register did indeed involve moral turpitude. Mohamed then petitioned the U.S. Court of Appeals for the Fourth Circuit for relief.

The Fourth Circuit stated that although the term is somewhat ambiguous, violation of a statute alone will not satisfy the moral turpitude requirement. In addition, the criminal conduct must be so vile or depraved that it violates a social norm. The Fourth Circuit found that the BIA's reasoning in Tobar-Lobo was flawed. When questioning whether failure to register involved moral turpitude the BIA considered the public policy underlying the registration statute rather than considering whether the defendant's actual conduct was so vile and depraved that it violated a social norm. The Fourth Circuit stated that failure to register does not rise to the level of moral turpitude because it is merely the failure to comply with an administrative regulation - which is not depraved or vile conduct. Accordingly, the Fourth Circuit granted Mohamed's petition for review, reversed the BIA's decision, and remanded with instructions to vacate Mohamed's order of removal.

Unlike this case, the Fourth Circuit chose not to question the BIA's interpretation of another ambiguous immigration statute in Regis v. Holder, decided later the same week.

To read the full opinion please click here.

Panel: Judges Traxler, Niemeyer, and Davis.

Argument Date: 9/19/2014

Date of Issued Opinion: 10/17/2014

Docket Number: No. 13-2027

Decided: Petition for review granted; reversed and remanded with instructions.

Case Alert Author: Roy Lyford-Pike

Counsel: ARGUED: Steven Harris Goldblatt, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner. Bernard Arthur Joseph, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rita K. Lomio, Supervising Attorney, Lola A. Kingo, Supervising Attorney, Tiffany L. Ho, Student Counsel, David A. Kronig, Student Counsel, Philip Young, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner. Stuart F. Delery, Assistant Attorney General, Civil Division, Jamie M. Dowd, 2Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author: Judge Niemeyer

Case Alert Circuit Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 11/04/2014 04:43 PM     4th Circuit     Comments (0)  

November 3, 2014
  Reid v. Comm'r Soc. Sec. -- Fourth Circuit
Headline: More than Satisfactory--Record Shows ALJ Completely Reviewed Evidence When Denying Social Security Benefits

Area of Law: Social Security

Issue Presented: Whether the ALJ failed to sufficiently consider all evidence and evaluate the cumulative effect of Reid's injuries before denying a social security claim.

Brief Summary: In 2006, Brian Reid filed for disability benefits claiming a fall from a roof in 2004 left him unable to work. He appealed the initial denial and a hearing was conducted before an administrative law judge (ALJ) who affirmed the denial. The United States Court of Appeals for the Fourth Circuit found that Reid failed to point to evidence that, if considered, would have changed the outcome of his application. Consequently, the court took the ALJ at its words when it declared it considered all the evidence before it. The Fourth Circuit also found evidence in the record where the ALJ explicitly considered the cumulative effects of Reid's injuries and concluded that those injuries combined did not meet or medically equal one of the listed statutory impairments. The court held that the ALJ had exceeded the statutory requirements.

To read the full opinion, please click here.

Panel: Before Chief Judge Traxler, and Judges Niemeyer and Duncan

Argument Date: 05/15/2014

Date of Issued Opinion: 07/2/2014

Docket Number: No. 13-1480

Decided: Affirmed by published opinion

Case Alert Author: Casandra Mejias

Counsel: Beatrice E. Whitten, Mt. Pleasant, South Carolina, for Appellant. Sarah Van Arsdale Berry, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Barbara M. Bowens, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina; John Jay Lee, Regional Chief Counsel, Kirsten A. Westerland, Assistant Regional Counsel, Dorrelyn K. Dietrich, Special Assistant United States Attorney, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for Appellee.

Author of Opinion: Judge Niemeyer

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 01:24 PM     4th Circuit     Comments (0)  

  United States v. Mavroudis -- Fourth Circuit
Headline: District Court Runs Sentence Consecutively with Any Future Sentences

Areas of Law: Criminal Procedure

Issue Presented: Whether the district court abused its discretion in sentencing the defendant to a term of imprisonment that ran consecutive to any future state or federal sentences that might be imposed, followed by a lifetime of supervised released.

Brief Summary: Theofanis Mavroudis, a sex offender who pled guilty to failing to register as such under 18 U.S.C. § 2250(a), was sentenced in federal district court to sixty-three months in prison. This sentence was to run consecutive to any future state or federal sentence and was to be followed by a lifetime of supervised release. Mavroudis challenged his sentence in an appeal to the United States Court of Appeals for the Fourth Circuit.

Reviewing the sentence for an abuse of discretion, the Fourth Circuit affirmed the sentence. The court explained that the sentence was both procedurally and substantively reasonable, based on ample sentencing testimony and the district court's explanation of its reasoning. Thus, the court held that Mavroudis failed to rebut the presumption of reasonableness accorded to his sentence. The Fourth Circuit also rejected Mavroudis' argument that the district court lacked discretion to run his sentence consecutive with any future sentence, explaining that in Setser v. United States the United States Supreme Court held that federal district courts have the discretion to order that a single sentence run consecutive to or concurrent with an anticipated state sentence not yet imposed.

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

Panel: Judges Keenan and Wynn, and Senior Circuit Judge Hamilton

Argument Date: Oral argument dispensed with

Date of Issued Opinion: 10/09/2014

Docket Number:
No. 14-4201

Decided: Affirmed by unpublished opinion

Case Alert Author: Emily Bolyard

Counsel:
ARGUED: Nicholas J. Compton, Assistant Federal Public Defender, Kristen M. Leddy, Research and Writing Specialist, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Jarod J. Douglas, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 01:14 PM     4th Circuit     Comments (0)  

  Owens v. Baltimore City State's Attorneys Office, et al. -- Fourth Circuit
Headline: One Step Closer to Redemption--Exonerated Felon's Brady Claim Lives to See Another Day

Areas of Law: Criminal, Criminal Procedure, Sovereign Immunity, Qualified Immunity

Issues Presented: (1) Whether plaintiff's § 1983 claim was barred on statute-of-limitations-grounds; (2) whether the Baltimore City State's Attorney's Office enjoys sovereign immunity; (3) whether individual police officers established a qualified immunity defense for the alleged 1988 Brady violation; and (4) whether the plaintiff failed to state a claim on which relief could be granted as to his claim against the Baltimore City Police Department.

Extended Summary: In 1988, James Owens was tried and convicted for rape and murder. After twenty years in prison, Owens was released in 2008 following a successful post-conviction challenge and the entry of a nolle prosequi by the Baltimore City State's Attorney's Office. During the course of several post-conviction challenges, Owens learned that the prosecution's star witness in his 1988 trial had changed his story at least eight times after first identifying Owens as the suspect, and even continued to change his story throughout the course of the trial. The prosecutors never disclosed these variations in the witness' testimony to the defense.

In 2011, just under three years after his release from prison, Owens brought an action under 42 U.S.C. § 1983 against the Baltimore City State's Attorney's Office, an Assistant State's Attorney, the Baltimore City Police Department, and several Baltimore City police officers. Owens claimed these offices and individuals violated his constitutional rights by intentionally withholding exculpatory and impeachment evidence during his 1988 trial. The U.S. District Court for the District of Maryland dismissed the complaint against all the defendants. First, the court held the claims were barred by the statute of limitations. In the alternative, the court held Owens' claim against the Baltimore City State's Attorney's Office was barred on sovereign immunity grounds, and against the individual police officers and the Baltimore City Police Department on qualified immunity grounds. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment with respect to the dismissal of Owens' claims against the Baltimore City State's Attorney's Office but vacated and remanded the judgment in all other respects.

The Fourth Circuit first held that Owens' claims were timely filed within the statute of limitations period. Neither party disagreed that Owens had three years to file his § 1983 claim; they disagreed, however, as to when this three-year limitation period began to run. Because § 1983 does not provide a statute of limitations, the Fourth Circuit compared Owens' § 1983 claims to the most analogous common law tort claim - in this case, malicious prosecution. The limitations period for a malicious prosecution claim commences when the proceedings against the plaintiff "are resolved in his favor." The Fourth Circuit determined that to be the date the government entered the nolle prosequi, not the date on which the state court granted Owens' post-conviction petition and granted him a new trial.

Although timely filed, the Fourth Circuit held that the Baltimore City State's Attorney's Office enjoyed sovereign immunity from Owens' claims. Recognizing that the Maryland courts have not considered the issue of whether this entity may be sued, the court held that absent a statutory or constitutional provision giving an entity a unique legal identity, it cannot be sued under Maryland law. Following the analysis of the Maryland Court of Appeals in Boyer v. State, the court found that Maryland constitutional and statutory law establishes only the "State's Attorney," or the person occupying the position of State's Attorney, as an entity amendable to suit. The court found the one "passing reference" to the "office of the State's Attorney" in the Maryland constitution was only a shorthand for the position of State's Attorney, and therefore did not establish the State's Attorney's Office as an entity amendable to suit.

Next, the court addressed Owens' claims against the individual police officers. In order to establish a qualified-immunity defense, a public official must demonstrate (1) that the plaintiff has not alleged a violation of a constitutional right, or (2) that such constitutional right was not clearly established at the time of its alleged violation. The court found that Owens pled enough facts to show he had a more-than-conceivable chance of success on the merits. First, the court found that Owens' allegations stated a plausible § 1983 claim, because Owens alleged enough facts to demonstrate police officers withheld material exculpatory or impeachment evidence in bad faith in violation of Fourth Circuit precedent following Brady v. Maryland. Second, the court held that Fourth Circuit precedent was clearly established at the time of Owens' trial in 1988 and therefore the officers had notice that their bad faith failure to disclose exculpatory evidence was a violation of Owens' constitutional rights.

Moving from the individual officers to the department, the court held that the Baltimore City Police Department did not enjoy the benefits of qualified immunity. Recognizing this, the BCPD instead argued on appeal that Owens failed to state a claim for which relief can be granted. Considering the claim from this procedural posture, the Fourth Circuit considered whether the BCPD followed a custom, policy, or practice by which the officials violated the plaintiff's constitutional rights. Owens' complaint alleged a theory of custom "by condonation." The court held that this was sufficient to survive the motion to dismiss. The fact that the police officers withheld information on multiple occasions (the variations in the star witness' statements) could establish the necessary pattern or practice.

Chief Judge Traxler, concurring in part and dissenting in part, dissented on the basis that Owens' claims were untimely and that the individual officers had established a qualified immunity defense. First, the Chief Judge would have begun the tolling of the statute of limitations when the state court granted Owens a new trial on the basis that that was the most final and favorable termination of the proceedings giving rise to the Brady violation. In the alternative, the Chief Judge would have held that the claims against the officers were barred because a police officer's duty to disclose under Brady was not clearly established at the time of Owens' 1988 trial.

Judge Wynn, also concurring in part and dissenting in part, dissented on the grounds that the Baltimore City State's Attorney's Office is an entity amenable to suit. Judge Wynn relied on the language the majority considered to be only a "passing reference" to the office in the Maryland Constitution.

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


Panel: Chief Judge Traxler, and Judges Motz and Wynn

Argument Date: 01/28/2014

Date of Issued Opinion: 09/24/14

Docket Number: No. 12-2173

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

Case Alert Author: Megan Raker

Counsel: ARGUED: Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore, Maryland; Laura Ginsberg Abelson, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellant. Daniel C. Beck, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland; Michele J. McDonald, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Joshua R. Treem, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellant. Douglas F. Gansler, Attorney General, H. Scott Curtis, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; George A. Nilson, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.

Author of Opinion: Judge Motz

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 12:54 PM     4th Circuit     Comments (0)  

  United States v. Catone -- Fourth Circuit
Headline: Loss Amount Recount--Worker's Comp Fraud Conviction Vacated and Remanded for Lesser Sentence and Restitution

Area of Law: Criminal Law, Constitutional Law (Sixth Amendment)

Issues Presented: (1) Whether a felony conviction under 18 U.S.C § 1920 requires a jury finding that the offense led to more than $1,000 in "falsely obtained" benefits; (2) whether absence of such a jury finding was harmless error; and (3) whether the district court erred in its determination of the loss amount when applying a loss-amount sentencing enhancement to defendant's base offense level and restitution order.

Brief Summary: Joseph Catone, a former U.S. Postal Service Worker, received payments under the Federal Employees Compensation Act for injuries he incurred while driving for extended periods of time. Each year, Mr. Catone had to verify his eligibility for the worker's comp benefits by disclosing any payments he received for work he performed. During the 2008-2009 term, Mr. Catone did not disclose that he received $635 for custodial services. A jury convicted Mr. Catone of violating 18 U.S.C. § 1920 by making a fraudulent statement (failing to disclose the $635) in connection with the application for receipt of compensation under a federal program. The district court sentenced Mr. Catone to sixteen months' imprisonment, and imposed a restitution order for $106,411.83.

On appeal to the U.S. Court of Appeals for the Fourth Circuit, Mr. Catone challenged his conviction, sentence, and restitution. First, the court held that Mr. Catone's felony conviction violated his Sixth Amendment right to trial by jury because the jury made no finding that the amount Mr. Catone fraudulently obtained exceeded $1,000. Following the Supreme Court's reasoning in Apprendi v. New Jersey and Alleyne v. United States, the court explained that the loss amount is an element of the offense requiring jury determination because the specific amount of loss increases the statutory maximum offense from a misdemeanor (punishable by one year in prison) to a felony (punishable by a five-year maximum sentence). In so holding, the Fourth Circuit adopted the Eleventh Circuit's interpretation of § 1920, and rejected alternative interpretations advanced by the Second, Seventh, and Tenth Circuits.

Second, the court held that the absence of the jury finding was not harmless because there was not "overwhelming evidence" establishing that Mr. Catone fraudulently obtained over $1,000. The court therefore vacated his conviction and directed the district court to impose a misdemeanor conviction on remand. The court finally found that the district court applied an improper analysis when calculating the loss amount for purposes of sentence enhancements and restitution. The Fourth Circuit directed the district court on remand to resentence Mr. Catone without any offense level enhancements for loss amount, and vacated and remanded the restitution order to be recalculated using the correct loss-amount formula.

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

Panel: Chief Judge Traxler, and Judges Keenan and Floyd

Argument Date: 5/14/2014

Date of Issued Opinion: 10/15/2014

Docket Number: No. 13-4663

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

Case Alert Author: Rebecca Berger

Counsel: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson, Acting Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Author of Opinion: Judge Floyd

Case Alert Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 12:35 PM     4th Circuit     Comments (0)  

  Hentosh v. Old Dominion University -- Fourth Circuit
Headline: Title VII Retaliation Claims Are Legitimate Even If Related EEOC Charges Are Dismissed

Area of Law: Administrative, Employment

Issue Presented: Whether the lower court committed reversible error when it granted defendant's motion for summary judgment on plaintiff's retaliation claim after having dismissed the underlying discrimination charges due to lack of subject matter jurisdiction.

Brief Summary: Professor Patricia Hentosh filed suit against her employer, Old Dominion University ("ODU"), alleging that ODU had an "unwritten but widespread" policy of discriminating against whites. Hentosh claimed that ODU discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 when it denied her tenure after she filed an EEOC complaint against the school. The district court granted ODU's motion to dismiss most of the discrimination claims, finding that the court did not have subject matter jurisdiction either because the EEOC complaints were not timely filed or because her legal claims were not within the scope of the EEOC charges and therefore had not been administratively exhausted. The district court denied ODU's motion to dismiss the retaliation claim because a retaliation claim may be properly raised for the first time in federal court. Nevertheless, the district court granted ODU's motion for summary judgment on that claim, finding that Hentosh failed to establish the elements of retaliation.

On appeal, Hentosh argued that the district court should have dismissed her retaliation claim instead of granting ODU's motion for summary judgment under Mezu v. Morgan State University, an unpublished opinion. The U.S. Court of Appeals for the Fourth Circuit disagreed. The Fourth Circuit found that Hentosh's understanding of Mezu directly conflicted with Nealon v. Stone, a published opinion establishing that the district court has original jurisdiction over retaliation claims so long as the claim is "reasonably related" to an administrative charge. Furthermore, the Fourth Circuit stated that failing to timely file an EEOC charge does not alone deprive the district court of subject matter jurisdiction. Therefore, the district court had subject matter jurisdiction over Hentosh's retaliation claim because it was reasonably related to her administratively exhausted Title VII claims. Consequently, the district court properly granted summary judgment in favor of ODU.

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

Panel: Judges Duncan, Wynn, and Childs

Argument Date: 05/13/2014

Date of Issued Opinion: 09/24/14

Docket Number: No. 13-2037

Decided: Affirmed

Case Alert Author: Roy Lyford-Pike

Counsel: Raymond Lee Hogge, Jr., HOGGE LAW, Norfolk, Virginia, for Appellant. George William Norris, Jr., OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Kenneth Michael Golski, HOGGE LAW, Norfolk, Virginia, for Appellant. Kenneth T. Cuccinelli, II, Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, Peter R. Messitt, Senior Assistant Attorney General, Ronald N. Regnery, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Author: Judge Childs

Case Alert Circuit Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 12:16 PM     4th Circuit     Comments (0)  

  United States v. Taylor -- Fourth Circuit
Headline: Passenger's Hesitation Allows for Warrantless Search at Airport Jet Way

Area of Law: Criminal Law

Issue Presented: Whether the district court's denial of a motion to suppress $102,000 that had been seized on an airport jet way as well as statements made by the defendant during a subsequent booking violated the Fourth Amendment protection against unreasonable searches and seizures.

Brief Summary: Homeland Security Investigations received a tip that Yvonne Taylor would attempt to smuggle a large amount of currency while traveling from Baltimore, Maryland, to Montego Bay, Jamaica. Officers stationed themselves inside the jet way gate and began interviewing passengers as they were boarding the Montego Bay-bound flight. When Taylor was questioned, she hesitated and gave a response that was seemingly different when compared to the other previously-questioned passengers. Taylor also gave inconsistent statements after officers asked her additional questions. Taylor ultimately admitted she was carrying over $100,000 on her person. Officers escorted Taylor to a secondary area where a pat-down search yielded $102,000 in cash hidden around her midsection. While the officer was filling out the booking form, Taylor volunteered that she had carried bulk sums of currency on two prior trips. She also volunteered that the money would have been deposited in a bank had she not been caught. On appeal, Taylor challenged the trial court's refusal to suppress the money and statements.

The U.S. Court of Appeals for the Fourth Circuit held that the Ramsey border search exception extends to all routine searches at the nation's borders. The initial stop and questioning of Taylor on the jet way therefore comported with the Fourth Amendment. Furthermore, the panel concluded that the officers had probable cause to arrest Taylor and conduct a warrantless search incident to that lawful arrest. Taylor's hesitation, awkward response when initially questioned, aversion to eye contact during questioning, and inconsistent answers regarding the amount of currency she was carrying all factored into the officer's reasonable belief that Taylor was or would be involved in criminal activity.

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


Panel: Judges Wynn and Diaz; Judge Hamilton, Senior Circuit Judge.

Date of Issued Opinion: September 24, 2014

Docket Number: 13-4507

Decided: Affirmed

Case Alert Author: Alexandra A. Stulpin

Counsel: Lance C. Hamm, Houston, Texas, for Appellant. Rod J. Rosenstein, United States Attorney, Evan T. Shea, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 12:10 PM     4th Circuit     Comments (0)  

  Occupy Nashville v. Haslam -- Sixth Circuit
Headline: Sixth Circuit rules that state officials are entitled to qualified immunity for alleged violations of protesters' First Amendment rights

Area of Law: The U.S. Constitution

Issue presented: Are state officials entitled to qualified immunity for alleged violations of protesters' constitutional rights?

Brief Summary: Six protesters sued various state officials after being arrested for violating a curfew that those officials had imposed. The protesters alleged, in relevant part, violations of rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. The district court found that the state officials were not entitled to qualified immunity and were personally liable for damages. The officials appealed. The Sixth Circuit reversed, holding that the state officials were entitled to qualified immunity.

Significance: Government officials may restrict activity that is conducted on state grounds, especially when that activity threatens the health and safety of the people on those grounds.

Extended Summary: A group of protesters calling themselves "Occupy Nashville" established an around-the-clock presence on the Nashville War Memorial Plaza in Nashville, Tennessee. After several weeks of occupying the Plaza, representatives of the protesters sought a meeting with state officials to discuss safety and health concerns that had developed in the course of the lengthy demonstration. The State agreed that the concerns had to be addressed and adopted a new policy that, in relevant part, imposed a curfew for the Plaza. Six people associated with the demonstration were later arrested for violating the curfew.

The protesters who'd been arrested sued various state officials under 42 U.S.C. § 1983, alleging, in relevant part, violations of rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. The state officials countered that the protesters had no First Amendment right to "occupy" the Plaza indefinitely. Absent this right, the officials argued, there could be no constitutional violation, and qualified immunity applied. The Sixth Circuit agreed.

The Court acknowledged that the qualified immunity that ordinarily protects government officials is forfeited when an official's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." The Court applied a well-settled two-part test to decide whether a government official is entitled to qualified immunity: (1) whether a constitutional right would have been violated on the facts alleged and, if so, (2) whether the right was clearly established. The Court focused on the second part of the test.

In applying the "clearly established right" prong, the Court stressed the importance of accurately defining the claimed constitutional right. The state officials defined the right claimed by the protesters as a right to "24-hour occupation" of the public square. The protesters, on the other hand, asserted a broad "clearly established First Amendment right to be present on the Plaza to air their grievances against the government." The Court concluded that the state officials' framing of the issue was more accurate. Thus, even though the protesters claimed that they had a right under the First Amendment to air their grievances against the government, their activities, as their name suggests, were fundamentally about occupation.

Relying heavily on precedent, the Court addressed whether the indefinite occupation of the Plaza was an established right. The Court stated that for a right to be clearly established, it must be clear enough that a reasonable official would understand that what he or she is doing violates that right. It was undisputed that the State may restrict sleeping and camping on state grounds, and may restrict the times that state grounds are open to the public. Thus, the Court determined that there was no right to indefinite occupation of the Plaza.

Further, the First Amendment does not grant a right to expression that threatens the health and safety of others. Representatives of the "Occupy Nashville" group approached the state officials to discuss sanitation problems, violent assaults, damage to state property, and the generally unsafe and deteriorating conditions in the Plaza. This discussion prompted the state officials to create the curfew. The Court concluded that because the officials had a legitimate basis for creating the curfew, their conduct was objectively reasonable under the circumstances.

For these reasons, the Court reversed the district court's order denying qualified immunity and granting partial judgment of liability.

Panel: SENTELLE, BENTON, and JORDAN, Circuit Judges

Date of issued opinion: October 8, 2014

Docket Number: No. 13-5882

Link to full opinion: ">"><br ">&l......./op...253p-06.pdf


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Counsel: ARGUED: Dawn M. Jordan, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashviller, Tennessee, for Appellees. ON BRIEF: Dawn M. Jordan, Heather C. Ross, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. C. David Briley, BONE MCALLESTER NORTON, PLLC, Nashville, Tennessee, Thomas H. Castelli, ACLU FOUNDATION OF TENNESSEE, Nashville, Tennessee, Tricia Herzfeld, OZMENT LAW, Nashville, Tennessee, for Appellees.

Author of Opinion: KENT A. JORDAN, Circuit Judge

Case Alert author: Candis Najor

Case Alert circuit supervisor: Professor Mark Cooney

Edited: 11/04/2014 at 01:25 PM by Mark Cooney

    Posted By: Mark Cooney @ 11/03/2014 11:54 AM     6th Circuit     Comments (0)  

November 2, 2014
  WildEarth Guardians v. EPA - Tenth Circuit
Case Name: WildEarth Guardians v. EPA - Tenth Circuit

Headline: Tenth Circuit upholds EPA's decision allowing New Mexico, Utah, and Wyoming to use a regional cap-and-trade program instead of the Best Available Retrofit Technology ("BART") regulations.

Areas of Law: Environmental Law, Administrative Law

Issues Presented:

1. Did the EPA use proper standards of analysis when determining that the regional cap-and-trade program will achieve greater reasonable progress than BART regulations?

2. Could the EPA have reasonably concluded that the cap-and-trade program would be effective with only three states participating?

3. Was the EPA required to consider emissions from New Mexico's Escalante coal plant when approving the state's implementation plan?

Brief Summary:

Three states adopted a regional cap-and-trade program that would allow them to remain compliant with the Clean Air Act. They convinced the Environmental Protection Agency that this program would yield better results than the standard BART regulations, and the EPA approved its use and implementation. Several environmental groups filed petitions for review, arguing that the EPA should not have approved the program.

The Tenth Circuit considered each of the petitioners' arguments and held that the EPA had not acted arbitrarily or capriciously in finding that the regional cap-and-trade program would achieve greater reasonable progress than BART and that it would achieve reasonable progress towards eliminating visibility impairment, even though it did not consider emissions from New Mexico's Escalante coal plant in its analysis. The court denied the petitions for review.

Extended Summary:

The Clean Air Act requires the Environmental Protection Agency to establish regulations requiring states to develop implementation plans to improve visibility and adopt, maintain, and enforce air quality standards. The EPA then monitors the states' implementation plans to ensure compliance. Once approved, those implementation plans become enforceable as federal law under 42 U.S.C. §§ 7413, 7604.

Congress also tasked the EPA with establishing a visibility transport commission to study regional haze in the Grand Canyon area and recommend solutions to reduce it. The EPA went a step further by establishing a commission to consider visibility in the greater Colorado Plateau area. This commission's role was passed onto the Western Regional Air Partnership, which made recommendations that resulted in the Regional Haze Rule. Under this rule, the nine states contributing to the regional haze were required to submit an implementation plan for reducing emissions. States could either apply the Best Available Retrofit Technology ("BART") approach under 40 C.F.R. § 51.308 or, alternatively, use a cap-and-trade program recommended by the transport commission if the states would expect better results than they would under BART regulations. This approach is authorized by 40 C.F.R. § 51.309, and is therefore referred to as a "309 program".

The states of New Mexico, Utah, and Wyoming, the County of Bernalillo, and the City of Albuquerque (collectively referred to as "participants") opted to participate in the 309 program. They convinced the Environmental Protection Agency that this program would yield better results than they would achieve under BART regulations, and the EPA approved their use of the 309 program in lieu of BART. WildEarth Guardians, Heal Utah, National Parks Conservation Association, Powder River Basin Resource Council, and Sierra Club (collectively referred to as "petitioners") filed petitions for review, arguing that the EPA should not have approved the 309 program.

The Clean Air Act authorizes judicial review of the EPA's approval of state implementation plans. The court noted that its standard of review was governed by the Administrative Procedure Act, which allows the court to reverse agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). If the EPA considered the relevant data and rationally explained its decision, its decision would not be overturned. The court further noted that administrative agencies are given great deference when operating under an "unwieldy and science-driven statutory scheme", citing Nat'l Ass'n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1229 (D.C. Cir. 2007).

The petitioners made three arguments against the EPA's approval of the 309 program. The first argument was that the 309 program was not better than the standard BART rules. The Regional Haze Rule, 40 C.F.R. § 51.308(e)(2), outlines a three-step process for determining if an alternative program is better than BART. It requires establishing a BART benchmark and predicting emission reductions if BART were implemented, predicting the emission reductions if the alternative program were implemented, and comparing the two. The petitioners argued that this process was not followed because the BART benchmark inappropriately adopted the presumptive emission rate in Appendix Y of the BART guidelines, the 309 program participants misapplied the "clear weight of the evidence" standard, and the participants overstated the effectiveness of the 309 program through inappropriate use of qualitative factors. The court considered each of these sub-arguments in turn and held that the better-than-BART determination was not arbitrary or capricious.

In 2006, the EPA amended the Regional Haze rule and recognized that "the [Appendix Y] presumptions represent[ed] a reasonable estimate of a stringent case BART." 71 Fed. Reg. at 60,619. The EPA decided that states could rely on them when attempting to meet requirements other than BART and avoid the need to perform a source-by-source emissions prediction. The Appendix Y presumptive emission rate was 0.15 pound per million British thermal units.

The petitioners argued that the participants should have determined a BART benchmark by performing a source-by-source analysis of each BART-regulated source, rather than relying on the Appendix Y presumptive rate. The court declined to consider this argument because it was untimely. It explained that, under 42 U.S.C. § 7607(b)(1), a petitioner only has 60 days to bring a lawsuit after an agency acts. In this instance, the petitioners had 60 days from the EPA's publication of the amended Regional Haze Rule. It was published to the Federal Register on October 13th, 2006. The petitions for review were not filed until December 2012 and January 2013, more than six years later. The court therefore lacked jurisdiction over the petitioners' challenge to the EPA regulation authorizing Appendix Y's use in lieu of a source-by-source determination, and so declined to consider it.

The petitioners also argued that the EPA should have considered whether the use of category-wide information was appropriate under 40 C.F.R. § 51.308(e)(2)(i)(C), which mandates the use of source-specific and category-wide information "as appropriate". According to petitioners, certain source-specific and category-wide information demonstrated that the BART benchmark grossly underestimated the sulfur dioxide reductions possible through use of the BART system. This information was provided by Ms. Stamper, the petitioners' expert witness. The court disagreed with the petitioner's contentions because, when the Western Regional Air Partnership submitted its better-than-BART determination in 2010 and the 309 program participants relied on the determination in their 2011 implementation plans, the data cited by the petitioners was not available. The EPA could reasonably conclude that inclusion of this data was infeasible because the determination resulted from years of coordinated efforts that took place before much of the petitioners' data existed. The court concluded that this determination was not arbitrary or capricious, comparing the circumstances to those in San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 620-21 (9th Cir. 2014) (holding that use of an imperfect analysis is not arbitrary or capricious when removal of those imperfections would not be feasible). The court further reasoned that reliance on Ms. Stamper's data would have been invalid under EPA regulations allowing for the use of the presumptive benchmark, noting that imprecision is inherent in simplifying assumptions such as those used to establish that benchmark.

The petitioners' next sub-argument was that the method used to compare the 309 program's effectiveness to the effectiveness of the BART program was improper. They reasoned that the EPA should not have compared the 309 program as a whole to BART but, rather, should have compared the 309 program's "milestones" to the effectiveness of BART. The court declined to entertain the argument because it was only raised in the petitioners' reply brief and was not mentioned in their opening brief. The court also declined to hear the argument because it was "unexhausted". Only "an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review." 42 U.S.C. § 7607(d)(7)(B). The petitioners failed to raise the issue in the EPA proceedings. As such, the issue was unexhausted and could not be heard.

The petitioners further argued that the consideration of qualitative factors when determining its effectiveness was improper, contending that a fully quantitative approach was required by 40 C.F.R. § 51.308(e)(3). The court rejected this argument. In 2006, the EPA amended 40 C.F.R. § 51.308(e)(2)(i) to provide a "clear weight of the evidence" standard as an alternative to the quantitative approach. The EPA clarified this standard as one that "attempt[s] to make use of all available information and data which can inform a decision while recognizing the relative strengths and weaknesses of that information in arriving at the soundest decision possible." Even though the EPA used quantitative examples in crafting that rule, the court held that this did not preclude the use of qualitative factors.

The court then considered each of the four factors the petitioners argued was qualitative to determine the reasonableness of the EPA's decision to utilize them. When comparing the effectiveness of BART to the 309 program, the EPA included "all sources with emissions greater than 100 tons/year of [sulfur dioxide]." This included sources not otherwise subject to BART regulation. The petitioners argued that the EPA should have only considered BART-eligible emission sources. The court disagreed, holding that the EPA could reasonably have interpreted 40 C.F.R § 51.308(e)(2)(i)(D) and (E) as allowing the use of all sources regulated by the 309 program.

The petitioners also argued that the EPA should not have considered emissions reductions from new sources of emissions, as those already would not have been subject to BART; they are regulated separately under the Clean Air Act. The court disagreed, reasoning that the EPA could reasonably conclude that the 309 program would "go beyond the existing regulatory process" in reducing emissions from new sources. It recognizes the EPA's two-fold strategy of regulating emissions for new sources while also encouraging voluntary reductions in emissions through the 309 program. In light of that strategy, it held that the EPA's decision to include emissions from new sources was not arbitrary or capricious.

The petitioners then argued that the EPA should not have relied on the purported benefits of a mass-based cap on emissions because it could not outperform BART. The mass-based cap was designed to allow for an increase in production of emissions-producing sources to accommodate an increased demand for electricity. It assumed that current sources were producing at 85% of their capacity, and estimated potential future emission levels using that assumption. The petitioners argued that many such sources were operating at far less than 85% capacity and, as such, those sources could ultimately exceed those estimated emission levels. The court noted that the EPA had a "reasonable foundation" for disagreeing with the petitioners' conclusion that this made the 309 program less effective than BART, and held that the EPA's decision was not arbitrary or capricious.

The petitioners' final sub-argument was that the EPA should not have considered early reductions in emissions when comparing the 309 program to BART. These were emission reductions that were achieved prior to formal implementation of the 309 program. It reasoned that the early reductions that had already been achieved could not have been causally linked to the 309 program, so they were impermissibly considered when comparing the program's effectiveness to that of BART regulation. The court sided with the EPA, noting that it was not required to show a causal relationship between the already achieved emissions reductions and the 309 program. The already-achieved reductions "tended to support the soundness of a strategy encouraging early reductions through the 309 program" and the EPA's decision to consider them was not arbitrary or capricious.

The second of the petitioners' three main arguments was that the 309 program should not have been approved because only three of the nine eligible states opted to participate in it, while the other six chose BART regulation. The petitioners reasoned that the 309 program could not be effective if only three states implemented it. The EPA opposed the argument as an untimely attack on the Regional Haze Rule. The court disagreed, considering it a timely challenge to the EPA's approval of the states' implementation plans. The court then concluded that the argument was invalid because neither the Clean Air Act nor the EPA's own regulations required participation by a certain number of states or tribes. It examined the EPA's rulemaking process and found that the EPA had not imposed any requirement that a minimum number of states participate.

The court considered the petitioners' argument that the 309 program will be ineffective with so few states participating. Petitioners argued that, even if the EPA wasn't precluded from allowing only three states to participate, it should not have allowed the program to go forward for lack of effectiveness. The court noted that states not participating in the 309 program would still be regulated under BART and held that the EPA could have reasonably concluded that the two different means of regulation would, together, be effective. The petitioners challenged the factual basis for that conclusion, noting that the three states generating the most emissions (California, Nevada, and Arizona) opted not to participate in the program, while the states that did choose to participate only contribute 36% of the emissions over the Colorado Plateau. The program also excluded dozens of coal-fired power plants while only including 15. The court held that, these arguments notwithstanding, the EPA could still have reasonably concluded that the 309 program would achieve the stated purpose of making "'reasonable progress' toward improvement of visibility over the Colorado Plateau."

The petitioners also argued that the exclusions from the 309 program prevented it from qualifying as a regional program, and that the program must be a regional program to satisfy statutory and regulatory purposes. The court disagreed with the assertion that the 309 program was not a regional program, noting that 42 U.S.C. § 7492(c)(1) does not require a minimum number of state participants for a program to qualify as a "regional program".

The petitioner's next sub-argument was that the EPA changed its position on the "critical mass" issue without sufficient explanation, making its decision arbitrary and capricious. The court agreed that unexplained deviations from past practices can indicate an arbitrary and capricious decision, but noted that such an inconsistency first requires analyzing the agency's interpretation. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). In this instance, the court found that the EPA never made a definitive statement that the 309 program required a "critical mass of participating states" to succeed. Since there was no prior policy, there was no inconsistency and the approval of the 309 program was not arbitrary or capricious.

The petitioners' third main argument was that approval of the implementation plans was inappropriate because the EPA failed to consider emissions from the Escalante Coal Plant, New Mexico's second-largest non-BART coal plant. In considering this argument, the court examined the "regulatory and factual setting" for New Mexico's implementation plan. 40 C.F.R. § 51.308(d)(1) requires states to establish reasonable progress goals that would improve visibility on the most impaired days while not reducing visibility on the least impaired days. States must first consider the cost of compliance, the amount of time needed for compliance, the energy and non-air quality environmental impacts of compliance, and remaining useful life of potentially affected sources. Id. § 51.308(d)(1)(i)(A). States must then determine the rate of required progress by comparing the baseline visibility with natural visibility conditions expected by 2064. Id. § 51.308(d)(1)(i)(B). If a state cannot achieve the uniform rate of progress, "it must demonstrate that a slower rate of progress is reasonable and that a greater rate of progress is unreasonable". Id. § 51.308(d)(1)(ii).

New Mexico determined that the uniform rate of progress would not be "reasonably achievable". It used a source-specific study by the Western Regional Air Partnership to argue that it could not achieve natural visibility conditions by 2064. It proposed a less ambitious reduction in emissions. When that proposal came under fire, the state offered to consider additional emission reductions in its analysis for 2013. It did so, but did not consider emissions from the Escalante Coal Plant.

The EPA argued that petitioners had not exhausted the argument and so could not bring it before the court. The court disagreed, holding that the petitioners had properly exhausted the argument because of prior comments to the EPA that had put them on notice. The form of the comments was imperfect. The petitioners did not initially argue that the EPA was required to analyze the Escalante plant, nor did they cite to 40 C.F.R. § 51.308(d). The court still held that the comments were "adequate notification of the general substance of the complaint", citing the standard adopted by S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 891 (D.C. Cir. 2006).

The crux of the petitioners' argument was that New Mexico should have included the Escalante plant in its reasonable-progress analysis, and that the EPA's approval of the state's implementation plan was unreasonable without that inclusion. The court disagreed. It noted that the regulations outlining the four-factor reasonable-progress analysis did not include the source-specific analysis that petitioners insisted was necessary. Rather, that language was a part of the better-than-BART analysis, a distinct and unrelated analysis. Likewise, nothing in the Clean Air Act or the Regional Haze Rule required a source-specific analysis in this instance.

Having rejected all of the petitioner's arguments, the court held that the Environmental Protection Agency did not act arbitrarily or capriciously when it approved the participants' implementation plans. It denied the petitions for review.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/12/12-9596.pdf

Panel: Bacharach, Seymour, Murphy

Date of Issued Opinion: October 21, 2014

Docket Number: No. 12-9596

Decided: Petition for review of final decisions issued by the United States Environmental Protection Agency was denied.

Counsel:
Jenny K. Harbine, Earthjustice, Bozeman, Montana (John Barth, Hygiene, Colorado, and Ashley D. Wilmes, WildEarth Guardians, Boulder, Colorado, with her on the briefs), for Petitioners.

Chloe H. Kolman, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C. (Stephanie J. Talbert, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., Robert G. Dreher, Acting Assistant Attorney General, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; M. Lea Anderson, Of Counsel, United States Environmental Protection Agency, Washington, D.C.;
Matthew C. Marks, Of Counsel, United States Environmental Protection Agency, Washington, D.C.; Brian Tomasovic, Of Counsel, United States Environmental Protection Agency, Dallas, Texas; Sara L. Laumann, Of Counsel, United States Environmental Protection Agency, Denver, Colorado, with her on the brief), for Respondent.

E. Blain Rawson, Ray Quinney & Nebeker, P.C., Salt Lake City, Utah (Emily Smith Loeffler, Quinney & Nebeker, P.C., Salt Lake City, Utah, Michael G. Jenkins, Assistant General Counsel, PacifiCorp Energy with him on the brief), for Intervenor PacifiCorp Energy.

Matthias L. Sayer, Assistant Attorney General, Wyoming Office of Attorney General, Cheyenne, Wyoming (Jay A. Jerde, Deputy Attorney General, Wyoming Office of Attorney General, Cheyenne, Wyoming, with him on the brief), for Intervenor State of Wyoming.

Christopher L. Colclasure, Holland & Hart LLP, Denver, Colorado, for Intervenor Basin Electric Power Cooperative;

Richard L. Alvidrez and Robert H. Clark, Miller Stratvert P.A., Albuquerque, New Mexico; Kallie H. Kuehl, Corporate Counsel, Albuquerque, New Mexico, on the brief for Intervenor Public Service Company of New Mexico.

Jeffrey M. Kendall, General Counsel and William G. Grantham, Assistant General Counsel, for New Mexico Environment Department, on the brief for Intervenor New Mexico Environment Department.

Carol Parker, Assistant City Attorney and Adelia W. Kearny, Deputy City Attorney, Albuquerque, New Mexico, on the brief for Intervenor City of Albuquerque.

H. Michael Keller and Mary Jane E. Galvin-Wagg, Van Cott, Salt Lake City, Utah; Mason Baker, General Counsel, Salt Lake City, Utah, on the brief for Intervenor Utah Associated Municipal Power Systems.

John E. Swallow, Utah Attorney General and Christian C. Stephens, Assistant Attorney General, Salt Lake City, Utah; Craig W. Anderson, Division Chief and Assistant Attorney General, Environment Division, Utah Attorney General's Office, Salt Lake City, Utah, on the brief for Intervenor Utah Division of Air Quality.

Paul M. Seby and Marian C. Larsen, Seby Larsen LLP, Denver, Colorado, on the brief for Amicus Curiae American Coalition for Clean Coal Electricity.

Author: Bacharach

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 11/02/2014 01:52 PM     10th Circuit     Comments (0)  

November 1, 2014
  Butler v. National Community Renaissance of California - Ninth Circuit
Headline: Ninth Circuit panel affirms the district court's grant of a motion to dismiss for the running of the statute of limitations on a 42 U.S.C. § 1983 action for an alleged warrantless search of a tenant's apartment holding that the amended complaints did not relate back under Cal. Civ. P. Code § 474 because plaintiff was not ignorant of the appellees' names or identities at the time the original complaint was filed, that the amended complaints did not relate back under Fed. R. Civ. P.15(c)(1)(C) because plaintiff did not establish that any of the appellees knew or should have known that her lawsuit would have been brought against them but for her mistake, and that the district court did not err in rejecting, at the pleading stage, plaintiff's claim of equitable tolling under California law.
Area of Law: Civil Procedure

Issue(s) Presented: Under Federal Rule of Civil Procedure 15(c)(1) and California Code of Civil Procedure section 473(a)(1), does a plaintiff's amended complaint containing names of defendants relate back to the original complaint when the original complaint did not contain the names of the defendants, the location of the alleged violation, or any fictitious names?

Whether equitable tolling under California law relieves a plaintiff from the statute of limitations when the plaintiff's tort claims were pending against some of the defendants for ten days?

Brief Summary: The only defendant listed in the caption of Butler's original complaint was National Community Renaissance Corporation ("NCORE"). The complaint alleged:

On April 18th 2007 apartment manager in absence of a search warrant gave Section 8 investigator and City employee and Sheriff deputies the keys to my apartment who then entered without search warrant or consent And began searching my apartment. Sheriff deputies removed me from My home and issued me a citation and then released me at that point. And in that situation they violated my 4th amendment right.

Subsequently, Butler filed four amendments to her complaint. Following the fourth amended complaint, all defendants except for NCORE filed motions to dismiss alleging Butler's claims in the amended complaint were barred by the statute of limitations and did not relate back to the original complaint. The trial court granted the motions with prejudice.

Interpreting Rule 15(c) as amended, the appellate court reviewed Butler's amendments under both Rule 15(c) and California law to apply the more permissive relation back standard.

The appellate court recognized that California Code of Civil Procedure section 473(a)(1) does not contain an express provision for relation back of amendments. Case law recognizes an exception to the general rule of no relation back where a plaintiff who is genuinely ignorant of a defendant's identity at the time of the original complaint, commits an excusable mistake attributable to dual entities with strikingly similar business names or the use of fictitious names.

The appellate court held that the record supported the trial court's finding that Butler was not genuinely ignorant of the identities of the defendants at the time of the original complaint because Butler contacted and complained about each of the defendants before the original complaint was filed.

Under Rule 15(c), the appellate court held that Butler failed to establish any of the defendants knew or should have known they would have been named as defendants, but for Butler's mistake because the original complaint did not contain any names of the individuals or organizations involved in the search of Butler's apartment. Further, Butler failed to identify the location of her apartment and only listed "City employee" and "Section 8 investigator" as the persons involved. Because the city employee and section 8 investigator could be in any county where the named defendant, NCORE maintains an apartment, there was no way for the defendants to have ascertained they would be the subject of a lawsuit. Therefore, the amended complaints did not relate back under Rule 15(c).

The trial court properly tolled Butler's claims against Palmdale and Barraza for 10 days. Nevertheless, even with the additional 10 days, Butler's claims were untimely. Lastly, the trial court properly found that equitable tolling did not apply against HACoLA and D'Errico.

Extended Summary: The 9th Circuit panel reviewed both the application of the statute of limitations and the relation back doctrine de novo.

The original complaint only named NCORE as a defendant. The complaint was one page, requested to proceed in forma pauperis and requested an attorney. The complaint alleged:

On April 18th 2007 apartment manager in absence of a search warrant gave Section 8 investigator and City employee and Sheriff deputies the keys to my apartment who then entered without search warrant or consent And began searching my apartment. Sheriff deputies removed me from My home and issued me a citation and then released me at that point. And in that situation they violated my 4th amendment right.

Butler filed a First Amended Complaint on April 22, 2009 adding the Housing Authority of the County of Los Angeles ("HACoLA"). The trial court, sua sponte dismissed the first amended complaint and through a series of amendments and sua sponte dismissals, Butler filed a third amended complaint on August 12, 2009. The third amended complaint named NCORE, HACoLA, the City of Palmdale ("Palmdale"), Oscar Barraza, in his individual capacity, and "Mr. D'Errico", in his individual capacity.

Oscar Barraza was alleged in the third amended complaint to be a manager and employee of NCORE and Mr. D'Errico was alleged to be the Section 8 investigator.

Proofs of service were filed and on September 8, 2009, Palmdale and Barraza filed a motion to dismiss the third amended complaint. On September 10, 2009 NCORE also filed a motion to dismiss. The trial court granted Palmdale and Barraza's motion with leave to amend concluding Butler's claims against Palmdale and Barraza were untimely and did not relate back to any of Butler's prior pleadings.

On March 15, 2010 Butler filed a fourth amended complaint naming the same defendants as the third amended complaint and setting forth in greater detail the relationships between the defendants, Butler's rental history with HACoLA, and an allegation that Butler filed a claim with Palmdale on June 11, 2007 that was denied on June 28, 2007.

Palmdale, Barraza, HACoLA, and D'Errico filed motions to dismiss asserting Butler's claims were barred by the statute of limitations.

The trial court granted the motions with prejudice, finding that the original complaint did not sufficiently identify HACoLA, D'Errico, Palmdale, or Barraza as defendants. The court found that because Butler knew of defendants' existence, status, and roles at the time, Butler did not make a mistake concerning the identity and therefore claims did not relate back under Federal Rule of Civil Procedure 15(c)(1). Additionally the court found that Butler did not name any fictitious defendants in her original complaint and therefore her claims did not relate back under California Law.

The trial court also found that Butler's claim with Palmdale tolled the statute of limitations for only ten days while it was pending but did not toll the statute as to Palmdale, Barraza, or D'Errico because they were not named until the second and third amended complaints. Additionally, because HACoLA was never named as a defendant in a tort claim, there was no tolling against it.

The trial court also rejected Butler's argument that the policy of deciding civil rights cases on the merits outweighed the policy underlying the statute of limitations, finding that both policies were of equal merit.

The court concluded that Butler's case would proceed against NCORE as the sole defendant.

On appeal, Butler contended that she sufficiently identified all the defendants in her original complaint. The 9th Circuit panel rejected Butler's contention because the body of the original complaint did not contain any names of any individuals or organizations involved in the search of her apartment.

Next, the appellate court determined the governing law on the relation back of claims, holding that both Rule 15(c) and California law had to be considered because the 1991 amendment to Rule 15(c) superseded Cabreles and Merrit to the extent they held that state law exclusively governs the relation back of amendments in § 1983 cases.

Interpreting Rule 15(c) as amended, the appellate court reviewed Butler's amendments under both Rule 15(c) and California law to apply the more permissive relation back standard.

The appellate court recognized that California Code of Civil Procedure section 473(a)(1) does not contain an express provision for relation back of amendments. Case law recognizes an exception to the general rule of no relation back where a plaintiff, who is genuinely ignorant of a defendant's identity at the time of the original complaint, commits an excusable mistake attributable to dual entities with strikingly similar business names or the use of fictitious names.

The appellate court held that the record supported the trial court's finding that Butler was not genuinely ignorant of the identities of the defendants at the time of the original complaint because Butler contacted and complained about each of the defendants before the original complaint was filed.

Under Rule 15(c), an amendment relates back to the date of the original pleading when 1) the basic claim arises out of the conduct set forth in the original pleading; 2) the party to be brought in received such notice that it will not be prejudiced in maintaining its defense; 3) the party knew or should have known that, but for mistake concerning identity, the action would have been brought against it. The second and third requirements must be fulfilled within 120 days for the filing of the original complaint.

The only dispute in the instant case was whether the defendants knew or should have known they would have been named as defendants but for an error.

The appellate court held that Butler failed to establish any of the defendants knew or should have known they would have been named as defendants, but for Butler's mistake, because the original complaint did not contain any names of the individuals or organizations involved in the search of Butler's apartment. Further, Butler failed to identify the location of her apartment and only listed "City employee" and "Section 8 investigator" as the persons involved. Because the city employee and section 8 investigator could be in any county where the named defendant NCORE maintains an apartment, there was no way for the defendants to have ascertained they would be the subject of a lawsuit. Therefore, the amended complaints did not relate back under Rule 15(c).

The appellate court also held that a trial court is free to address equitable tolling at the pleading stage and that the trial court properly tolled Butler's claims against Palmdale and Barraza for 10 days. Nevertheless, even with the additional 10 days, Butler's claims were untimely. Lastly, the trial court properly found that equitable tolling did not apply against HACoLA and D'Errico.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/09/12/11-55806.pdf

Panel: Stephen S. Trott, Consuelo M. Callahan, Circuit Judges and Mark W. Bennet, District Judge.

Date of Issued Opinion: September 12, 2014

Docket Number: 11-55806

Decided: Affirmed

Case Alert Author: Brandon Powell

Counsel: Jeremy B. Rosen (argued), Horvitz & Levy, L.L.P., Encino, California; Andrew Wilhelm and Ashley Cook, certified law students, Ninth Circuit Appellate Advocacy Clinic, Pepperdine University School of Law, Malibu, California, for Plaintiff-Appellant Zina Butler. Toussaint S. Bailey (argued), Steven R. Orr, and Aaron C. O'Dell, Richards, Watson & Gershon, P.C., Los Angeles, California, for Defendants-Appellees City of Palmdale and Oscar Barraza. Nicole A. Davis Tinkham and Christian E. Foy Nagy, Collins Collins Muir & Stewart, L.L.P., South Pasadena, California, for Defendants-Appellees Housing Authority of the County of Los Angeles and Lee D'Errico.

Author of Opinion: Bennett, District Judge.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2014 04:41 PM     9th Circuit     Comments (0)  

  Tio Dinero Sessoms v Randy Grounds, Warden - Ninth Circuit
Headline: Ninth Circuit reverses the denial of a habeas corpus petition based on the California Court of Appeal's unreasonable application of U.S. Supreme Court precedent in finding that a defendant's request for an attorney was not unequivocal or unambiguous.

Area of Law: Constitutional Law, Criminal Procedure

Issue(s) Presented: Whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether a defendant was asking for an attorney based on the following statements when looked at together:
. "There wouldn't be any possible way that I could have a-a lawyer present while we do this?"
. "Yeah, that's what my dad asked me to ask you guys...uh, give me a lawyer."

Brief Summary: Tio Sessoms, the defendant, stabbed and killed a Sheriff while burglarizing his home. Sessoms then fled from California but later surrendered to police. Sessoms was in custody awaiting interrogation for approximately four days before detectives from California arrived. Within 40 seconds of the detectives entering the interrogation room Sessoms said "There wouldn't be any possible way that I could have a-a lawyer present while we do this?" and "Yeah, that's what my dad asked me to ask you guys...uh, give me a lawyer." The interrogation continued, the detectives cautioned Sessoms against speaking to an attorney and then read the Miranda warning. Sessoms then agreed to speak with the detectives and made incriminating statements.

Sessoms filed a motion to suppress the incriminating statements and then after being convicted moved for a new trial based on prejudicial Miranda warning. The trial court denied both motions and sentenced Sessoms to life without parole.

The California Court of Appeal ruled that Sessoms's statements did not qualify as an unequivocal or unambiguous request for counsel and as such neither statement was sufficiently clear that a reasonable officer would understand the statements to be a request for an attorney.

Sessoms then filed a federal habeas petition arguing that he had invoked his right to counsel, but the district court denied the petition.

The case eventually warranted an en banc review in light of new caselaw that suggests that Davis's requirement of an unambiguous invocation of a right to counsel applies to pre-Miranda statements.

Setting the framework for review here, the 9th Circuit went over the evolution of Miranda and the subsequent cases. Based on the totality of circumstances, the 9th Circuit held that while the Court of Appeal correctly identified the governing cases and the facts of the case that the Court of Appeal inappropriately applied that caselaw to the facts of this case. The Court of Appeal erred by considering the two statements completely separate from each other and without any context to the rest of the interrogation.

Sessoms's first request that "[t]here wouldn't be any possible way that I could have a-a lawyer present while we do this?" was deemed to be a request coached in a deferential tone rather than an ambiguous request. Similarly, Sessoms's second request of "Give me a lawyer" was determined to have only one reasonable interpretation: that he was asking for a lawyer.

Ultimately Sessoms's statements, when taken together, were far from being ambiguous and the case was remanded for further proceedings.

Extended Summary: In 1999 Tio Sessoms, the defendant, repeatedly stabbed and killed a Sheriff while burglarizing his home. Sessoms then fled from California to Oklahoma where he surrendered to police approximately 3 weeks later upon learning there was a warrant for his arrest. Sessoms was then in custody for four days while waiting for detectives from California to fly out to question him. When the detectives did arrive there was a very brief exchange of pleasantries and, approximately 40 seconds after detectives entered the room, Sessoms said "There wouldn't be any possible way that I could have a-a lawyer present while we do this?" and "Yeah, that's what my dad asked me to ask you guys...uh, give me a lawyer." Rather than stopping the interrogation, the detectives warned Sessoms about the "risks" of speaking with an attorney and told him they already had all the evidence against him. It was only after all of this occurred that the detectives read Sessoms his Miranda rights, at which point Sessoms agreed to talk and made incriminating statements.

The trial court denied Sessoms's motion to suppress the incriminating statements and Sessoms was convicted at trial of first-degree murder, robbery, and burglary. Sessoms moved for a new trial based on prejudicial Miranda error, but the trial court denied the motion and Sessoms was sentenced to life without parole.

Upon appeal, the Court of Appeal ruled that, while Sessoms's statements explicitly referred to an attorney, neither statement was an unequivocal or unambiguous request for counsel and as such neither statement was sufficiently clear that a reasonable officer would understand the statements to be a request for an attorney.

Sessoms then filed a federal habeas petition arguing that he had invoked his right to counsel, but the district court denied the petition.

A divided three-judge 9th Circuit panel upheld the district court's denial of Sessoms's habeas petition on the grounds that Sessoms's statements were made prior to his Miranda waiver. In a rehearing en banc, the 9th Circuit reasoned that Davis's requirement that a request for counsel be unambiguous only applied after a suspect had been informed of his Miranda rights and reversed the district court's denial based of habeas relief.

The Supreme Court then granted the state's petition for a writ of certiorari and remanded the case in light of new caselaw that suggested that Davis's requirement of an unambiguous invocation of a right to counsel applied to pre-Miranda statements. The case once again went before the 9th Circuit for rehearing en banc.

Setting the framework for review here, the 9th Circuit reviewed the evolution of Miranda and the subsequent cases. Miranda set a clear bright-line rule that a person must be warned that he has the right to remain silent and has the right to the presence of an attorney in order to protect his 5th Amendment's right against self-incrimination. This was particularly important given that modern in-custody interrogations have become largely psychologically oriented. Later, in Edwards v. Arizona, the Court explained that, once the right to counsel is asserted, the interrogation must immediately stop. In doing so, the Court hoped to ensure that officers would not badger defendants into waiving Miranda rights. Three years later, in Smith, the Court ruled that questioning must cease after the first request for counsel and that courts should not examine subsequent responses to questions to determine whether initial requests were ambiguous. In Davis, however, the Court held that a suspect must unambiguously request counsel. The Court has also held in two subsequent cases that merely remaining mute is not sufficient to invoke the privilege.

The Court then applied the above mentioned caselaw to the facts here and determined that Sessoms unequivocally claimed the privilege.

The 9th Circuit held that while the Court of Appeal correctly identified the governing cases, it inappropriately applied that caselaw to the facts of this case by considering Sessoms's two statements completely separate from each other and without any context to the rest of the interrogation.

Beginning with the circumstances leading up to Sessoms's requests, the detectives used many of the tactics that Miranda was designed to prevent: no warning was provided up front and the detectives immediately delved into the heart of their questions. This type of situation presents the danger that people like Sessoms could feel compelled to speak despite their constitutional rights. Despite these initial pressures, however, Sessoms still managed to request counsel not once, but twice.

Sessoms's first request that "[t]here wouldn't be any possible way that I could have a-a lawyer present while we do this?" was not simply a question about if he should speak to an attorney; it was a request coached in a deferential tone. There is also little doubt that the detectives understood the question given that, when Sessoms later asked in paralleled phrasing if it would be possible for him to speak with his father, the detectives immediately responded "Well no...." Consequently, the only appropriate response to Sessoms's first request would have been to read him his Miranda rights at that time.

Sessoms then followed up this first request with a second request with even plainer language: "give me a lawyer." The Court of Appeal reasoned that this was merely Sessoms stating his father's advice to him, yet the only reasonable interpretation of those words is that Sessoms was requesting an attorney. While it can be argued, inappropriately in the court's opinion, that the first request may have been ambiguous, when taken in conjunction with the second request there was no room for doubt that Sessoms wanted a lawyer. This point is driven home by the fact that, after Sessoms made his requests, the detective felt the need to caution Sessoms against speaking to a lawyer prior to speaking with the detectives; after all, "[w]hy would [the detective] need to talk Sessoms out of an attorney if he hadn't understood that Sessoms wanted an attorney?"

Given the importance of these circumstances and the context they shed on Sessoms's requests, the Court held that California Court of Appeal's finding that Sessoms's request for counsel was ambiguous to be unreasonable and reversed the district court's judgment and remanded the case for further proceedings.

Dissents:
Chief Judge Kozinski reluctantly dissented, explaining that there was no doubt that the detectives were aware that Sessoms was asking for counsel and used their leverage to redirect him, but that the correct question is simply whether it was unreasonable for the state courts to conclude that a reasonable officer would have been confused as to whether Sessoms was asking for an attorney. Despite this, however, Chief Judge Kozinski also stated a certain joy that the majority did not share the same view given the relatively dirty tactics used to obtain Sessoms's statements here.

Circuit Judge Callahan dissented separately to state that the Supreme Court's decision should have precluded the majority opinion from finding that Sessoms's statements were so unambiguous as to render the Court of Appeal's opinion unreasonable.

Circuit Judge Murguia, with whom Kozinski, Chief Judge and Silverman, Callahan, Ikuta, Circuit Judges join, also dissented on the grounds that the correct standard of review for reversing the district court was whether "any fairminded jurist could determine" that Sessoms's reference to an attorney might have made a reasonable officer believe only that Sessoms might be invoking the right to counsel. Ultimately, the dissenting judges believed such a fairminded jurist could reach such a decision here and thus it was inappropriate to reverse the trial court's ruling.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/09/22/08-17790.pdf

Panel: Alex Kozinski, Chief Judge and Mary Schroeder, Barry Silverman, M. Margaret McKeown, Kim Wardlaw, Raymond Fisher, Richard Paez, Conseulo Callahan, Milan Smith, Jr., Sandra Ikuta, and Mary Murguia, Circuit Judges.

Date of Issued Opinion: September 22, 2014

Docket Number: 08-17790

Decided: Reversed.

Case Alert Author: Seth DuMouchel

Counsel: Eric Weaver (argued) for Petitioner-Appellant.

Jeffrey Firestone (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Michael P. Farrell, Senior Assistant Attorney General; and Charles A. French, Supervising Deputy Attorney General, Sacramento, California for Respondent-Appellee.

Peter C. Pfaffenroth, HL Rogers and Brian A. Fox, Sidley Austin LLP, Washington D.C.; Mark E. Haddad and Douglas A. Axel, Sidley Austin LLP, Los Angeles, California; and David M. Porter, Office of the Federal Defender, Sacramento, California, for Amicus Curiae National Association of Criminal Defense Lawyers.

Author of Opinion: McKeown, Circuit Judge.

Case Alert Circuit Supervisor: Professor

    Posted By: Glenn Koppel @ 11/01/2014 04:39 PM     9th Circuit     Comments (0)  

  United States of America v. Johnson - Ninth Circuit
Headline: Ninth Circuit panel affirms the convictions of Antoine Lamont Johnson and Michael Dennis Williams for armed robbery and murder.

Area of Law: Constitutional Law, Sixth Amendment right to confront witnesses, Fifth Amendment right to silence.

Issue(s) Presented: Does the "forfeiture exception" to the Confrontation Clause of the Sixth Amendment require that proof of the defendant's responsibility for the witness's absence be shown by only a preponderance of the evidence as provided by Federal Rule of Evidence 804(b)(6), or, in light of Crawford and its progeny, by clear and convincing evidence?

Was it proper for the trial court to simply give the jury limiting instructions for hearsay testimony admitted under the "forfeiture exception" to the Confrontation Clause, which was used against Johnson, instead of granting Williams's request for a separate trial?

Is mentioning a defendant's failure to present exculpatory evidence the same as commenting on a decision not to testify, thereby violating the Fifth Amendment's right to silence?

Brief Summary: On March 1, 2004, four assailants robbed an armored truck in South Central Los Angeles, killing one of the security guards. On June 19, 2007, appellants Antoine Johnson and Michael Williams were indicted by a grand jury for their involvement in the robbery and murder.

Several out-of-court statements made by an informant, Veronica Burgess, were introduced at trial. These statements positively identified Johnson as one of the assailants; however Burgess was less sure about Williams's involvement. Burgess was unavailable to testify as she had disappeared shortly before trial.

The Government presented evidence at the pretrial hearing that Johnson was responsible for Burgess's intimidation and disappearance. The court found there was sufficient evidence to support this inference and allowed Burgess's testimony to be introduced.

Johnson argued the trial court erred in admitting Burgess's testimony. The Confrontation Clause allows "testimonial" hearsay testimony by an unavailable witness to be admitted in evidence only when the defendant has had a prior opportunity to confront and cross-examine the witness. However, under the forfeiture exception, a defendant forfeits his right under the Confrontation Clause if it can be shown he intentionally acted to prevent the witness's availability. Johnson argued that under Thevis, a defendant only forfeits his right to confront a witness if this intentional misconduct can be proven by "clear and convincing evidence."

The panel held that, after Crawford, the Confrontation Clause no longer requires a reliability analysis in order to determine whether testimonial hearsay testimony against a defendant from an unavailable witness will be admissible. Since reliability of this hearsay testimony is no longer an issue, the clear and convincing evidence standard no longer applies. Further, when the Federal Rules of Evidence were amended in 1997 to include the forfeiture exception, the Advisory Committee adopted the preponderance of the evidence standard, noting "[t]he usual Rule 104(a) preponderance of the evidence standard has been adopted in light of the behavior the new Rule 804(b)(6) seeks to discourage."

Johnson further argued the Government violated his Fifth Amendment right to silence when, in closing, the prosecution commented that Johnson had failed to explain presence of his DNA on a wig that was purportedly worn by one of the assailants. The Court ruled that the prosecution's comments focused on Johnson's failure to present evidence, not his failure to testify..

Williams also argued that statements made by an unindicted co-conspirator were improperly admitted. The Court held they were properly admitted under the "statement against interest" exception to the Federal Rules of Evidence, Fed. R. Evid. 804(b)(3).

The court found no trial court errors, and affirmed the convictions of both Johnson and Williams.


Extended Summary: On March 1, 2004, four assailants ambushed an armored truck that was making a cash delivery to a Bank of America in South Central Los Angeles. During the robbery, one of the security guards was shot and killed. On June 19, 2007, appellants Antoine Johnson and Michael Williams, both of whom were affiliated with a group known as the Hoover Street Gang, were indicted by a grand jury for their involvement in the robbery and murder. The charges carried a possible penalty of death.

At trial, the government introduced several out-of-court statements made by an informant, Veronica Burgess. These statements form the basis for the Sixth Amendment issues on appeal.

Burgess claimed to the police she overheard several Hoover Street Gang members planning the heist. She identified Johnson from a photo spread as one of the participants. She later repeated this accusation in front of the grand jury. Burgess also identified Williams from the photo spread, but later confused him with a different individual. Burgess was to be an important witness but shortly before trial the Government could no longer locate her.

At the pretrial hearing, the Government presented evidence showing Burgess had received death threats starting the day after defense attorneys were permitted to disclose the identity of the witnesses to the defendants. On that same day, Johnson's counsel had visited him in prison. Burgess's live-in boyfriend, Patrick Smith, told police the Hoovers had placed a "hit" on Burgess for "snitching on a boy fighting death." Smith also told police the "mother of one of the guys in jail looking at death" had contacted Smith, and was trying to find Burgess. Burgess then disappeared.

The Government claimed at the pretrial hearing that there was sufficient evidence to infer the "boy fighting death" was Johnson, and Johnson had informed members of the Hoover gang that Burgess was set to testify against him. The Government presented testimony from a prison guard that inmates in the "Special Housing Unit," where Johnson was confined, routinely communicated with other inmates by speaking through the air vents and passing written messages through the plumbing system. The Government contended Johnson had both the means and the motive to threaten Burgess. Although Burgess had consistently identified Johnson, she had failed to do so with Williams. While Burgess had identified other individuals besides Johnson, only Johnson was facing the death penalty. Finally, at the pretrial hearing, the Government was able to establish Johnson's mother was involved with a known Hoover gang member, suggesting not only that Johnson had close ties to the gang, but also that Johnson's mother was the woman looking for Burgess.

Johnson denied that he threatened Burgess. His counsel insisted Johnson had no way of communicating with Burgess or anyone on the outside, and other suspects could have learned of Burgess's identity. Johnson's private investigator testified that Burgess had recanted her identification of Johnson and claimed Burgess told the investigator she only implicated Johnson to collect reward money.

At the hearing, it was found the Government had presented sufficient evidence to establish Johnson was responsible for Burgess's absence. Johnson argued that this fact had not been established by clear and convincing evidence and Burgess's prior testimony should therefore not be admitted. But the judge at the hearing ruled that the preponderance standard of Fed. R. Evid. Rule 804 applied and admitted Burgess's prior testimony.

The evidence presented at trial was substantial. Testimony was presented from Jamal Dunagan, another Hoover gang member, to the effect that both Johnson and Williams had confessed to the crime. Dunagan also testified about statements made to Dunagan by Derrick Maddox, an uncharged co-conspirator. Maddox gave Dunagan a detailed account of the crime, including the extensive involvement of Johnson and Williams. DNA evidence was introduced placing both Johnson and Williams at the crime scene. Both defendants were convicted for conspiracy, robbery, and discharging a firearm causing death. They each received a life sentence.

The Confrontation Clause of the Sixth Amendment bars the admissibility of testimonial hearsay when the defendant has not had an opportunity to confront and cross-examine the declarant, subject to certain limited exceptions. Crawford, 541 U.S. 36, 59 (2004). Burgess's statements were testimonial because they were given in front of a grand jury and to the police. But a defendant may forfeit his confrontation right if the defendant is responsible for the witness's unavailability.

On appeal, Johnson argued that introduction of Burgess's out-of-court statements violated his confrontation rights because the government failed to prove by clear and convincing evidence that he intentionally caused Burgess's absence. Johnson relied upon United States v. Thevis, which held that the clear and convincing standard generally applies whenever the reliability of evidence is at issue and should therefore apply in the forfeiture context as well.

The Ninth Circuit panel ruled that, after Crawford, the clear and convincing standard is no longer applicable because "reliability is no longer the touchstone of confrontation analysis." The panel noted that "the forfeiture exception is consistent with the Confrontation Clause, not because it is a means for determining whether hearsay is reliable, but because it is an equitable doctrine designed to prevent defendants from profiting from their own wrongdoing."

Therefore, the trial court did not err in concluding the Government had produced sufficient evidence to demonstrate Johnson had intentionally prevented Burgess from testifying.

Johnson also claimed the prosecution infringed his right to silence by commenting, in its closing argument, on Johnson's failure to explain the presence of his DNA on a wig purportedly worn by one of the assailants. Notwithstanding that "it is well established that a defendant's right to silence prohibits the Government from commenting on his or her decision not to testify," the panel held the Government is permitted to "call attention to the defendant's failure to present exculpatory evidence more generally." The Court reasoned that the government had focused on Johnson's failure to present evidence, not on his failure to testify, observing that Johnson could have rebutted the Government's DNA evidence in other ways besides his own testimony, such as by presenting expert witness testimony.

Williams also argued the district court improperly admitted inculpatory hearsay statements of Derrick Maddox, who was involved in this crime but uncharged. However, the court found the statements were properly admitted under the "statement against interest" exception to the hearsay rule. Fed. R. Evid. 804(b)(3).

The convictions of Johnson and Williams were affirmed.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/09/12/10-50401.pdf

Panel: Mary M. Schroeder and Richard R. Clifton, Circuit Judges, and John R. Tunheim, District Judge.

Date of Issued Opinion: September 12, 2014

Docket Number: 10-50401

Decided: Affirmed

Case Alert Author: Michael Zatlin

Counsel: Benjamin L. Coleman, Coleman & Balogh, LLP, San Diego, California; Ethan A. Balogh (argued), Coleman & Balogh LLP, San Francisco, California, for Defendant-Appellant Antoine Lamont Johnson. John C. Lemon (argued), San Diego, California, for Defendant-Appellant Michael Dennis Williams. Andre Birotte, United States Attorney, Robert E. Dugdale, Karen I. Meyer, and Elizabeth Yang, (argued), Assistant United States Attorneys, Los Angeles, California, for Plaintiff-Appellee United States of America

Author of Opinion: Schroeder, Circuit Judge.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2014 04:37 PM     1st Circuit     Comments (0)  

October 31, 2014
  Lightfoot v. Cendant Mortgage Corp.
Headline: Ninth Circuit Affirms the Dismissal of Claims Against Fannie Mae and Affirms the Holding that Fannie Mae's Federal Corporate Charter Confers Federal Question Jurisdiction Over Claims.

Area of Law: Civil Procedure; Federal Question Jurisdiction

Issue(s) Presented: Whether the sue-and-be-sued clause in Fannie Mae's federal corporate charter confers federal question jurisdiction over claims brought by or against Fannie Mae.

Brief Summary:

The Ninth Circuit panel held that the sue-and-be-sued clause in Fannie Mae's federal charter conferred federal question jurisdiction over suits in which Fannie Mae is a party and that the district court had subject matter jurisdiction over plaintiffs' claims. The Court thus affirmed the district court's dismissal of plaintiffs' claims against Fannie Mae.

First, the majority opinion discussed the language of the sue-and-be sued clause in Fannie Mae's charter, which authorizes Fannie Mae "to sue and be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal." The Court held that this language confers federal question jurisdiction over claims brought by and against Fannie Mae, based on the clear rule for construing sue-and-be sued clauses for federally chartered corporations set forth in Red Cross which held that "a congressional charter's 'sue and be sued' provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts.".

Second, the majority opinion addressed the phrase "court of competent jurisdiction" contained in Fannie Mae's sue-and-be sued clause, and opined that Congress was simply modernizing Fannie Mae's charter. The opinion reasoned that the Fannie Mae's sue-and-be-sued clause (1) retained specific reference to federal courts sufficient to confer federal question jurisdiction and (2) could be read to emphasize that the clause did not authorize or require the exercise of subject matter jurisdiction by a state court with narrow specialized jurisdiction.

Third, the majority opinion discussed the legislative history of the 1954 and 1974 amendments to the Fannie Mae charter, and found no evidence that the change to Fannie Mae's sue-and-be sued clause was part of the move toward privatization of Fannie Mae.

Lastly, the majority opinion addressed the language regarding Fannie Mae's principal place of business in the 1974 amendment and opined that the referenced "jurisdiction" is almost certainly a reference to personal jurisdiction.


Dissent: District Judge Stein dissented from the majority opinion and opined that the phrase "of competent jurisdiction" does not confer automatic federal subject matter jurisdiction over any action to which Fannie Mae is a party and, thus, jurisdiction must arise from some other source.


Extended Summary: Following foreclosure proceedings initiated by the Federal National Mortgage Association ("Fannie Mae"), Plaintiffs Beverly Ann Hollis-Arlington and Crystal Monique Lightfoot filed two suits in the United States District Court for the Central District of California, alleging numerous state- and federal-law claims against Fannie Mae and other defendants. The district court dismissed both suits and this Court affirmed on appeal. Plaintiffs then filed the present suit in California state court, and Fannie Mae removed to federal court. Plaintiffs' motion to remand was denied, and the district court dismissed all of Plaintiffs' claims as barred by res judicata and collateral estoppel. Plaintiffs appealed the district court's judgment, arguing that the district court lacked subject matter jurisdiction over their claims. This Court initially affirmed in an unpublished opinion and later withdrew that disposition, ordering the parties brief whether Fannie Mae's federal charter granted the district court subject matter jurisdiction.

First, the majority opinion discussed the language of the sue-and-be sued clause in Fannie Mae's charter, which authorizes Fannie Mae "to sue and be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal." The opinion held that this language confers federal question jurisdiction over claims brought by and against Fannie Mae, based on the clear rule for construing sue-and-be sued clauses for federally chartered corporations set forth in American Red Cross v. S.G., 505 U.S. 247 (1992).

The majority opinion walked through the reasoning in Red Cross, summarizing the line of cases that established the "rule" that when federal charters "expressly authoriz[e] the organization to sue and be sued in federal courts . . . the provision extends beyond a mere grant of general corporate capacity to sue, and suffices to confer federal jurisdiction." See Osborn v. Bank of the United States, Bank of the United States v. Deveaux, Bankers Trust Co. v. Texas & Pacific Railway, and D'Oench, Duhme & Co. v. FDIC.

Second, the majority opinion addressed the phrase "court of competent jurisdiction" contained in Fannie Mae's sue-and-be sued clause. The opinion disagreed with the dissent's argument that Congress eliminated federal question jurisdiction by replacing the phrase "court of law or equity" with "court of competent jurisdiction." The opinion reasoned that such elimination would impose a severe new restraint on Fannie Mae's ability to litigate in federal court and, since neither the House nor the Senate commented on a change of that sort, there was no indication that Congress intended to eliminate federal question jurisdiction.

The opinion also reasoned that the most likely explanation for replacing the phrase "court of law or equity" with "court of competent jurisdiction" is that Congress was simply modernizing Fannie Mae's charter, since the federal courts and almost every state had abandoned the law/equity division, and since Congress had removed a number of references to "law or equity" in the statutes that defined federal district court jurisdiction.

The opinion then reiterated that cases from Deveaux to D'Oench put Congress on notice that a specific reference to federal courts was sufficient to confer jurisdiction. Here, the 1954 amendment of Fannie Mae's sue-and-be-sued clause retained "the very words the Court had recently held sufficient to confer such jurisdiction in D'Oench." Further, the opinion emphasized that Congress knew how to eliminate federal question jurisdiction because it did so by deleting the reference to federal courts in the Federal Savings and Loan Insurance Corporation ("FSLIC") charter that same year.

The majority opinion next disagreed with the dissent's argument that this majority holding rendered superfluous the phrase "court of competent jurisdiction." The opinion found that Fannie Mae's sue-and-be-sued clause could be read to emphasize that the clause did not authorize or require the exercise of subject matter jurisdiction by state courts with narrow specialized jurisdiction (citing Osborn), reasoniing that Congress added the phrase "court of competent jurisdiction" to Fannie Mae's charter in the 1950's in response to a general concern about the extent of federal authority to require state courts to hear cases brought pursuant to federal statutes.

Third, reviewing the legislative history of the 1954 and 1974 amendments to the Fannie Mae charter, the majority found no evidence that the change to Fannie Mae's sue-and-be sued clause was part of the move toward privatization of Fannie Mae. The majority opinion reasoned that Congress used the phrase "court of competent jurisdiction" in contexts that had nothing to do with either Fannie Mae or privatization; that the House Report never mentioned the change to Fannie Mae's sue-and-be-sued clause despite going into great detail on other provisions designed to privatize Fannie Mae; that Congress eliminated federal question jurisdiction from the FSLIC charter; and that Congress changed the Home Loan Bank Board's sue-and-be-sued clause without relation to privatization.

The opinion further noted that in 1968 Congress split Fannie Mae into two corporations - Fannie Mae and the Government National Mortgage Association ("Ginnie Mae") - and both corporations kept the same sue-and-be-sued clause, despite the fact that Fannie Mae was entirely privately owned and Ginnie Mae was entirely federally owned. The majority thus concluded that, if the phrase "court of competent jurisdiction" had been used in 1954 as part of an overall plan to privatize Fannie Mae and to limit its access to federal courts, then Congress would not have used the same phrase in Ginnie Mae's charter.

Lastly, the majority opinion addressed the language regarding Fannie Mae's principal place of business in the 1974 amendment, which was changed to read as: "Fannie Mae shall maintain its principal office in the District of Columbia or the metropolitan area thereof and shall be deemed, for purposes of jurisdiction and venue in civil actions, to be a District of Columbia corporation." The majority disagreed with the dissent's argument that this change showed that Congress sought to authorize diversity jurisdiction over suits in which Fannie Mae was a party. The majority opined the 1974 amendment reference to "jurisdiction" is almost certainly a reference to personal jurisdiction, and reasoned that legislative history was consistent with Congress' intent to move its principle place of business to the suburbs without effecting any change to the place where it would be subject to general jurisdiction. The majority further reasoned that, unlike other statutes that expressly refer to the corporation as a "citizen" so as to authorize diversity jurisdiction, Fannie Mae's 1974 amendment does not use the word "citizen" and provides only that Fannie Mae is a "District of Columbia corporation."

Based on the above discussion, the Ninth Circuit panel concluded that the sue-and-be-sued clause in Fannie Mae's federal charter conferred federal question jurisdiction over suits in which Fannie Mae is a party and that the district court had subject matter jurisdiction over plaintiffs' claims. The Court thus affirmed the district court's dismissal of plaintiffs' claims against Fannie Mae.

Dissent: District Judge Stein dissented from the majority opinion and opined that the phrase "of competent jurisdiction" does not confer automatic federal subject matter jurisdiction over any action to which Fannie Mae is a party and, thus, jurisdiction must arise from some other source.

First, the dissent looked to the plain language of Fannie Mae's sue-and-be-sued clause and argued that Red Cross did not announce a new rule of law but, rather, simply restated the rule established in Osborn and Deveaux to assist Congress and courts in writing and interpreting sue-and-be-sued clauses.

The dissent did not agree with the majority's alternative readings of the "of competent jurisdiction" provision. With respect to Congress' drive to modernize the U.S. Code, the dissent argued that Congress simply deleted references to courts of law and equity and did not replace phrases with new references to "courts of competent jurisdiction." With respect to state and federal courts of specialized jurisdictions not being required to hear cases involving Fannie Mae, the dissent argued that this is an unduly narrow reading of the clause.

The dissent then argued that the majority's reading of the proviso would render it entirely superfluous and that the historical backdrop for the majority's interpretation of the clause was irrelevant to the issue presented. In sum, the dissent argued that the only natural reading of the phrase requires the Court to look for a source outside of Fannie Mae's sue-and-be-sued clause for federal subject matter jurisdiction.

Second, the dissent looked to the history of Congress' amendments to reinforce its conclusion that the clause does not confer federal subject matter jurisdiction. The dissent emphasized that, when Congress acts to amend a statute, courts presume it intends its amendment to have real and substantial effect. The dissent reasoned that the 1954 amendment to Fannie Mae's sue-and-be-sued clause was part and parcel of Congress' overall intention to eventually take the federal government out of the secondary mortgage market, and that Congress elected the default option for federally chartered corporations, i.e., no automatic access to the federal courts unless the government owns more than half of the corporation's capital stock.

Lastly, the dissent opined that, by the adding the word "jurisdiction" in the 1974 amendment, Congress intended to allow Fannie Mae to access the federal courts via diversity jurisdiction, reasoning that if Fannie Mae's sue-and-be-sued clause conferred subject matter jurisdiction, then Congress amended the company's charter in 1974 for no reason whatsoever.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/10/02/10-56068.pdf

Panel: Stephen S. Trott and William A. Fletcher, Circuit Judges, and Sidney H. Stein, District Judge

Date of Issued Opinion: October 2, 2014

Docket Number: 10-56068

Decided: Affirmed

Case Alert Author: Beverly E. Bashor

Counsel: Thomas Ogden (argued), Law Offices of Thomas Ogden, Alhambra, California; Crystal Monique Lightfoot, West Hills, California, for Plaintiffs-Appellants; Jonathan Hacker (argued), O'Melveny & Myers LLP, Washington, D.C., Jan T. Chilton, Severson & Werson, San Francisco, California, for Defendants-Appellees.

Author of Opinion: W. Fletcher, Circuit Judge

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/31/2014 06:21 PM     9th Circuit     Comments (0)  

October 30, 2014
  Regis v. Holder -- Fourth Circuit
Headline: Chevron Doctrine Puts Limits on "Minors" Seeking Permanent Resident Status

Area of Law: Immigration; Administrative Law

Issue Presented: Whether a K-2 visa holder's eligibility for permanent resident status is determined by the date of entry into the United States or instead by the date on which the K-2 visa application is filed.

Brief Summary: Noel Joseph Menor Regis, a native of the Philippines, was approved to enter the United States on a K-2 visa with his mother (as a minor child who was unmarried and under the age of twenty-one). However, Regis did not actually enter the U.S. until a few weeks after his mother married a U.S. citizen. At the time he entered, Regis was twenty-one years old. Upon entry, Regis applied to become a permanent resident, but the United States Citizenship and Immigration Services denied his application because under the Immigration Nationality Act ("INA"), he was not a minor child when he entered at the age of twenty-one. The Board of Immigration Appeals ("BIA") affirmed the decision, and Regis appealed. Regis argued that he was eligible for permanent resident status because the INA is ambiguous as to when during the immigration process a K-2 visa holder must be a minor child. Because he was younger than twenty-one years old when he applied for and received his K-2 visa, Regis argued he was eligible for relief.

After a Chevron analysis, the U.S. Court of Appeals for the Fourth Circuit deferred to the BIA and concluded that a K-2 visa holder's permanent resident status is determined by the date of entry because a visa can be extinguished at any time prior to admission into the U.S.

In a case decided the same week as this one, Mohamed v. Holder, the Fourth Circuit did not afford the same deference to the agency and reversed the BIA's ruling.

To read the full opinion, please click here.

Panel: Judges Duncan, Agee, and Diaz

Argument Date: 09/16/2014

Date of Issued Opinion: 10/16/2014

Docket Number: No. 13-1988

Decided: Petition Denied

Case Alert Author: Jamie Lee

Counsel: Alfred Castro Tecson, TECSON LAW OFFICE, Annandale, Virginia, for Petitioner. Colin James Tucker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney General, Civil Division, Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2014 03:23 PM     4th Circuit     Comments (0)  

  Chevron Corp. v. Page -- Fourth Circuit
Headline: Lawyers Accused of Extortion Scheme Must Hand Over Documents to Chevron

Area of Law: Discovery, Privilege, Comity Doctrine

Issue Presented: Whether decisions on applications for discovery filed under 28 U.S.C. § 1782 are immediately appealable.

Brief Summary: In 2011, Ecuadorian plaintiffs obtained a multi-billion dollar judgment against Chevron in an Ecuadorian court. The plaintiffs' claim was that Chevron caused damage to the environment during oil drilling operations in Ecuador. Chevron alleged that the court proceedings were fraudulent. Specifically, Chevron alleged that Steven Donziger, the plaintiff's lead attorney, bribed and ghost wrote the judge's opinion. To help establish its fraud claim, Chevron sought discovery in the United States under 28 U.S.C. § 1782, which authorizes federal district courts to order persons to give testimony or produce documents to use in a foreign proceeding. The Second Circuit held that Donziger made an unsubstantiated privilege claim, and ordered him to produce the documents Chevron subpoenaed.

In conjunction with the Donziger discovery request, Chevron also issued subpoenas to Aaron and Daria Page, lawyers in Maryland who allegedly helped to ghost write the Ecuadorian judgment against Chevron. When the Pages provided inadequate responses, Chevron asked the District Court of Maryland to compel discover.

For the first time, the U.S. Court of Appeals for the Fourth Circuit ruled that decisions on applications for discovery filed under 28 U.S.C. § 1782 are immediately appealable. The Fourth Circuit found the Pages' claim of privilege failed on the merits. Further, the court found that the doctrine of comity required the court to apply the Second Circuit's decision ordering discovery to the current action in Maryland. Under the doctrine of comity, federal courts are not allowed to "step on each other's toes" and make rulings that would impact ongoing litigation of the matter in a different federal court. The Fourth Circuit affirmed the district court's order requiring the Pages to produce the requested documents.

To read the full opinion, please click here.

Panel: Judge Niemeyer, King, and Agee

Argument Date: 03/18/2014

Date of Issued Opinion: 09/24/2014

Docket Number: Case No. 13-1382

Decided: No. 13-1382 Dismissed; 13-2028 affirmed by published opinion

Case Alert Author: Michele Hayes

Counsel: ARGUED: James Edward Tyrrell, Jr., PATTON BOGGS LLP, Newark, New Jersey, for Appellants. Thomas Henderson Dupree, Jr., GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellee. ON BRIEF: Christopher J. Gowen, THE GOWEN GROUP LAW OFFICE, PLLC, Washington, D.C., for Appellants Aaron Marr Page and Daria Fisher Page. Richard D. Carter, CARTER & COLEMAN, PLC, Alexandria, Virginia, for Appellants Hugo Gerardo Camacho Naranjo, Javier Piaguaje Payaguaje, Aaron Marr Page, Daria Fisher Page, and Parties-in-Interest - Appellants Ecuadorian Plaintiffs. Peter E. Seley, Claudia M. Barrett, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellee.

Author of Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2014 02:47 PM     4th Circuit     Comments (0)  

  Colony Insurance Co. v. Petersen, et al. -- Fourth Circuit
Headline: Waiver and Estoppel Cause Insurance Company's Material Misrepresentation Claim to Go Up in Smoke

Area of Law: Insurance, Contracts

Issue Presented: Whether, under North Carolina law, waiver and estoppel issues were properly before a jury when the defendants made material misrepresentations to the insurance company on their application for insurance, the company was aware of the misrepresentations, and the company nevertheless granted insurance.

Brief Summary: On May 6, 2010, Colony Insurance Company insured the defendants' headquarters (the 501 building) against loss due to fire damage. The policy included a fire protection safeguard clause requiring the defendants to, among other things, maintain "functioning utilities at the 501 building." The clause explained that Colony would not pay for fire damage if, prior to a fire, the defendants "failed to maintain any protective safeguard" or failed to notify Colony of any failure in a protective safeguard. Colony hired a third party to inspect the 501 building for any issues "related only to insurability" of the premises. Colony received a written inspection report on April 13, 2010 noting that there was no heat at the 501 building, which conflicted with information on Petersen's insurance application stating that heat would remain continuously powered. However, Colony never notified the defendants of any problems that needed to be remedied. On May 18, 2010, the building suffered fire damage. Colony denied coverage after reviewing the inspection report in July.

Colony sought a declaratory judgment regarding its indemnity obligations under the policy. Colony moved for summary judgment, arguing the insured's material misrepresentations on their application rendered the policy void, and the breach of fire protective safeguards endorsement precluded coverage. The case proceeded to trial and a jury found that although a material misrepresentation as to the functioning utilities appeared on the insurance application, and that a condition of fire protective safeguards endorsement requiring functioning utilities to remain on had been breached, Colony waived its right to rescind the policy and was estopped from denying coverage. Following the jury's verdict the district court denied Colony's motion for judgment as a matter of law and entered final judgment against Colony.

On appeal, Colony argued that the district court erred in denying Colony's motion for judgment as a matter of law. The United States Court of Appeals for the Fourth Circuit affirmed. Applying North Carolina law, the Fourth Circuit held that a reasonable jury could have found that Colony waived its fire safeguard provision, or that Colony was estopped from enforcing the conditions of the agreement because it never notified the defendants that they were not in compliance with the policy. Additionally, the court found that while a material misrepresentation on an insurance application may forfeit coverage, waiver and estoppel may overcome a material misrepresentation claim, and such a question is for a jury to resolve.

To read the full opinion please click here.

Panel: Judges King, Wynn, and Floyd.

Argument Date: 05/15/2014

Date of Issued Opinion: 08/25/2014

Docket Number: No. 13-1033

Decided: Affirmed

Case Alert Author: Roy Lyford-Pike

Counsel: Reid C. Adams, Jr., WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Winston-Salem, North Carolina, for Appellant. Patrick Michael Kane, SMITH MOORE LEATHERWOOD LLP, Greensboro, North Carolina; James W. Bryan, NEXSEN PRUET, PLLC, Greensboro, North Carolina; Stephen G. Teague, TEAGUE, ROTENSTREICH, STANALAND, FOX & HOLT, PLLC, Greensboro, North Carolina, for Appellees. ON BRIEF: LT, PLLC, Greensboro, North Carolina, for Appellees. ON BRIEF: James R. Morgan, Jr., Jonathan R. Reich, WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Winston-Salem, North Carolina, for Appellant. M. Jay Devaney, NEXSEN PRUET, PLLC, Greensboro, North Carolina, for Appellee Randolph Bank and Trust Company. Manning A. Connors, SMITH MOORE LEATHERWOOD LLP, Greensboro, North Carolina, for Appellees Evergreen Composite Technology, LLC and Charles A. Peterson. Lyn K. Broom, TEAGUE, ROTENSTREICH, STANALAND, FOX & HOLT, PLLC, Greensboro, North Carolina, for Appellees Edward L. Clayton, Jr. and HPB Insurance Group, Incorporated.

Author: Judge Wynn

Case Alert Circuit Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 10/30/2014 10:59 AM     4th Circuit     Comments (0)  

October 29, 2014
  United States v. Baker- Tenth Circuit
Case Name: U.S. v. Baker - Tenth Circuit

Headline: Tenth Circuit Construes Rule 35(b) Narrowly; Denies Government's Motion to Reduce Defendant's Sentence as Out of Time

Area of Law: Criminal Procedure

Issue Presented: Does a district court have jurisdiction to grant a reduction in a defendant's previously imposed sentence under Fed. R. Crim. P. 35(b) for providing substantial assistance to the Government in the prosecution of another individual when the information provided to the government was useful both before and after the one-year anniversary of his sentencing?

Brief Summary:

Rule 35(b) authorizes the district court, upon the Government's motion, to reduce a previously imposed sentence if the defendant, after sentencing, provided substantial assistance to the Government in investigating or prosecuting another person. Generally, the Government must file a motion for a sentence reduction within the year following sentencing, but Rule 35(b)(2)(B ) permits the Government to file a motion more than one year after the sentencing if the information provided by the defendant did not become useful to the government until more than one year after sentencing In this case, the government conceded that the defendant's information was useful both before and after the one-year mark. As a result, the Tenth Circuit held that the plain language of Rule 35(b) precluded the district court from reducing the defendant's sentence since the government filed the motion more than one year after the defendant's sentencing.

Extended Summary:

Defendant Baker was indicted on eighty offenses arising out of a fraudulent investment scheme. Baker pled guilty to two of the offenses and was sentenced to the bottom range of the sentencing guidelines, to forty-one months in prison. After sentencing, Baker provided information about his co-defendant Akins' role in the fraud and offered to testify against Akins. As a result of his cooperation, the Assistant United States Attorney told Baker that he would recommend a reduction in sentence.

Akins pled guilty to two of the charged offenses and was sentenced to 27 months. The plea and sentencing happened within one year of Baker's sentencing, and during this time Baker twice requested that the government file the Rule 35(b) motion to have his sentence reduced. The government delayed filing the motion in case it needed Baker to testify at a restitution hearing, and the one-year time period lapsed before the restitution hearing took place. The government did not file the Rule 35(b) motion until January 28, 2013 - over fifteen months after Baker's sentencing.

The district court held that it had limited jurisdiction because the motion was filed more than a year after the sentencing. The government then filed the motion under Rule 35(b)(2)(B), giving the court jurisdiction to reduce a defendant's sentence if the information provided within one year of sentencing did not become useful to the government until more than one year after sentencing. The district court ruled that it did not have jurisdiction because the government conceded that the information was useful both before and after the one year. The court reviewed the district court's determination on jurisdiction de novo.

The court noted that a district court's ability to modify a sentence is limited, and it may only do so when expressly authorized by Congress. The ability to modify sentences is granted in 18 U.S.C. § 3582(c). That section refers the reader to Rule 35 of the Federal Rules of Criminal Procedure for the rule on when a district court may modify a sentence.

Rule 35(b)(1) requires the government file its motion to reduce a sentence within one year of the defendant's sentencing. Rule 35(b)(2) extends that time period in some circumstances, including when information provided during the year after sentencing does not become useful until more than a year after sentencing. The court held that the language of Rule 35(b)(2)(B) did not include times when information is valuable to the government both before and after the one-year mark.

The court noted that the purpose of Rule 35 is to promote finality and encourage defendants to quickly disclose information to the government. The limited circumstances in 35(b)(2) that extend past the one-year deadline are reserved from times when the defendant does not know the information within one year, or could not reasonably have known that the information would be useful to the government, or the information itself was not useful until more than a year after sentencing. Under the circumstances in Baker's case, the court concluded that the district court did not have jurisdiction to reduce the sentence. The parties argued that the full extent of Baker's assistance was unknown until more than one year after the sentencing, but the court concluded that Congress intended the word "until" to mean specifically that the information could not become useful before the one-year mark.

The government conceded that it could have filed the 35(b) motion to preserve the court's jurisdiction over the matter and then ask the court to wait to make a ruling until after the restitution hearing. Further, the government conceded that it did not realize the need to do so until it was too late.

The court then addressed the defendant's reliance on United States v. Morales, 52 F.3d 7 (1st Cir. 1995). In Morales, the First Circuit interpreted an earlier version of Rule 35, construing it broadly. The First Circuit stated that a defendant cannot be said to know useful information until she knows the value of that information, or is specifically asked. The court noted that other circuits have declined to follow this reasoning, and that in the present case, it would decline to do so as well. The court stated that it did not have the authority to interpret Rule 35(b) in any way that is not the clear and explicit language stated in the rule.

The court affirmed the district court's decision, noting that the requirements of Rule 35(b) are jurisdictional. It sympathized with Baker's plight, noting that it was unfortunate for Baker that the government did not file the motion in a timely manner. Finally, it noted that the government only sought a six-month reduction of his forty-one month sentence.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-1042.pdf

Panel: Kelly, Ebel, and Phillips

Date of Issued Opinion: October 28, 2014

Docket Number: No. 13-1042

Decided: Decision of the district court was affirmed

Counsel: Warren R. Williamson, Federal Public Defender and Jill M. Wichlens, Assistant Federal Public Defender, Denver Colorado, for Defendant-Appellant Frederick H.K. Baker.

John F. Walsh, United States Attorney and Robert Mark Russel, Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee United States of America.

Author: Ebel

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 10/29/2014 05:14 PM     10th Circuit     Comments (0)  

  United States v. McCabe -- Fourth Circuit
Headline: Plead the Deaths Away: Meth Maker Not Responsible for Funeral Costs

Area of Law: Sentencing

Issue Presented: Whether a defendant can be ordered to pay half of the funeral costs for a death that the government did not prove the defendant caused.

Brief Summary: Gerald McCabe manufactured methamphetamine in his apartment. An explosion and fire at the apartment caused the death of three people, including his neighbor Joseph Raeth. Following the explosion, McCabe pled guilty to conspiring to manufacture fifty or more grams of methamphetamine and to manufacturing methamphetamine where a minor was present. As part of his sentence, McCabe was ordered to pay half of Raeth's funeral costs. McCabe appealed.

McCabe argued, among other things, that the district court erred in ordering him to pay the funeral costs. The United States Court of Appeals for the Fourth Circuit held that since the prosecution failed to show at sentencing by a preponderance of the evidence that McCabe's drug conspiracy caused the fire that killed Raeth, Raeth was not a victim of the offense of conviction. As such, the Fourth Circuit found that the district court had erred in ordering McCabe to pay for half of Raeth's funeral costs and vacated that part of the order.
To read the full opinion, please click here.

Panel: Judges Gregory, Agee, and Thacker

Date of Issued Opinion: 09/11/2014

Docket Number: No. 13-4730

Decided: Dismissed in part, vacated in part, and remanded

Case Alert Author: Casandra Mejias

Counsel: William L. Runyon, Jr., WILLIAM L. RUNYON, JR. LAW OFFICE, Charleston, South Carolina, for Appellant. William Nettles, United States Attorney, Peter T. Phillips, Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 10/29/2014 at 02:23 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/29/2014 02:14 PM     4th Circuit     Comments (0)  

  United States v. Young -- Sixth Circuit
Headline: Sixth Circuit upholds the 15-year mandatory minimum sentence of a man charged with possession of seven shotgun shells in violation of the Armed Career Criminal Act.

Areas of Law: Criminal Law; U.S. Constitution

Issues Presented: (1) Did the mandatory minimum sentence of 15 years for the possession of seven shotgun shells violate the proportionality principle of the Eighth Amendment? (2) Did the lower court's failure to notify the defendant of his legal impediment violate the defendant's right to due process under the Fifth Amendment?

Brief Summary: The defendant, a convicted felon, received a 15-year prison sentence under the Armed Career Criminal Act for the possession of seven shotgun shells. He appealed, arguing that this sentence violated the Eighth Amendment's ban on cruel and unusual punishment and that the lower court had also violated his due-process rights by failing to notify him of his legal impediment. The Sixth Circuit disagreed and affirmed the sentence, noting that the defendant's past criminal record was an important factor.

Extended Summary: Edward Young came into possession of seven shotgun shells while helping a widowed neighbor sell off her late husband's belongings. The record showed that there was no "risk of harm or violence" from his mere possession of the shells because he did not possess a compatible gun; there was no evidence that he used the shells in a crime or intended to use them in a future crime; and there was no evidence that he planned to give them to someone else who would use them in a crime. The court further found that Young's innocent acquisition of the shotgun shells was of "the lowest level of culpability that could have rendered him guilty." Nevertheless, the lower court imposed a 15-year mandatory minimum sentence for this possession crime under the Armed Career Criminal Act (ACCA).

Young appealed his sentence, first arguing that the sentence violated the Eighth Amendment's ban on cruel and unusual punishment because it was grossly disproportionate to the offense he committed. Second, he argued that the lower court's failure to notify him of his legal impediment in the lower court's sentencing colloquy and other sentencing-related documents violated his right to due process under the Fifth Amendment.

The Sixth Circuit affirmed. In rejecting Young's Eighth Amendment argument, the court relied on the Supreme Court's three "objective criteria" for assessing proportionality: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed on others in the same jurisdiction; and (3) the sentences imposed for the same offense in other jurisdictions. The court noted that the gravity-versus-harshness test typically answers the question without a need for further inquiry. Unless a court finds that there is a gross disproportionality between the gravity of the crime and the harshness of the penalty, there is no need to look at other sentences for similar crimes.

The court acknowledged that a 15-year sentence for the possession of seven shotgun shells was "harsh and severe," but it noted that "[f]or recidivist offenders, the line is different." Gross disproportionality is rarely met and is especially hard to meet in non-capital-punishment cases, the court observed. But the court relied heavily on Young's recidivism, describing his prior burglaries as his "Achilles heel." His prior offenses included four counts of burglary and seven counts of aggravated burglary. These past crimes involved theft of weapons and ammunition, and also qualified as violent felonies under the ACCA. The court also found it relevant that, while no burglary charges were made in the present case, the ammunition was found during a search for stolen tools, and several other stolen items were found in Young's house during that investigation.

As to Young's Fifth Amendment due-process argument, the Sixth Circuit noted that "unless the statute is so vague, technical, or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct, [the court applies] the centuries-old maxim that ignorance of the law is no excuse." The language in § 922(g) of the ACCA plainly states that it is "unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess . . . ammunition." Therefore, even though the lower court didn't specifically inform Young of his legal disabilities, he was put on notice by the statute itself.

Concurrence: Judge Stranch wrote a concurrence suggesting possible changes to the ACCA, such as allowing for safety valves or graduated sentences based on the kind of weapon or ammunition possessed, the indicia of risk, or how remote the prior crimes. He added that district-court judges are in a much better position than Congress to decide what risk a defendant poses to society and should therefore have discretion in sentencing. Finally, Judge Stranch stated that although he believes that "mandatory minimum laws are ineffective in achieving their purpose and damaging to our federal criminal justice system and our nation," he was bound by precedent to uphold the sentence.

Panel: Judge Griffin, White, and Stranch

Date of Issued Opinion: September 11, 2014

Docket Number: 13-5714

Counsel: ARGUED: Douglas A. Berman, THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW, Columbus, Ohio, for Amicus Curiae. Christopher T. Varner, EVANS HARRISON HACKETT PLLC, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee. ON BRIEF: Christopher T. Varner, EVANS HARRISON HACKETT PLLC, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee. Douglas A. Berman, THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW, Columbus, Ohio, Candace C. Crouse, PINALES STACHLER YOUNG BURRELL & CROUSE CO., L.P.A., Cincinnati, Ohio for Amicus Curiae.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0234p-06.pdf

Case Alert Author: Jerrod Simpson

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor: Professor Mark Cooney

Edited: 10/29/2014 at 12:27 PM by Mark Cooney

    Posted By: Mark Cooney @ 10/29/2014 12:15 PM     6th Circuit     Comments (0)  

October 27, 2014
  John Thorpe v. Borough of Jim Thorpe - Third Circuit
Headline: Third Circuit Rules that Jim Thorpe's Body Will Stay in Jim Thorpe

Area of Law: Trusts & Estates, Administrative Law

Issues Presented: Does the NAGPRA allow Jim Thorpe's descendants to remove his remains from their current resting place in Jim Thorpe, Pennsylvania to Sac and Fox tribal land in Oklahoma?

Brief Summary: John Thorpe, the son of the legendary American athlete Jim Thorpe, sued the Borough of Jim Thorpe in Pennsylvania for failing to comply with the Native American Grave Protection and Repatriations Act ("NAGPRA"). According to NAGPRA, museums and federal agencies in possession of Native American remains and funerary artifacts must notify the affected tribe, and any known lineal descendant may request the return of the remains or artifacts. The District Court determined that the Borough of Jim Thorpe qualified as a museum under NAGPRA and the remains of Jim Thorpe must be disinterred and returned to his son for burial on Sac and Fox lands. The Third Circuit Court of Appeals, however, held that the Borough should not be considered a museum under NAGPRA, reasoning that although the Borough receives federal money, it was not Congress's intent to extend the meaning of museum beyond the plain meaning of the word. The Circuit Court reversed the previous decision, thereby allowing Jim Thorpe's body to remain in the borough named for him.

Extended Summary: Jim Thorpe was an American athlete, considered by some to be the greatest of all time. He was also a Native American of the Sac and Fox tribe in Oklahoma. Despite his fame in his younger days, he died in poverty and, most importantly for this case, without a will. It was left to his widow, Patsy Thorpe, to determine what should be done with his remains. Although Jim Thorpe himself had expressed a desire to be buried in Oklahoma and some plans were made to do just that, Patsy Thorpe ultimately decided that two small municipalities in Pennsylvania should become his final resting place. As a tribute to her husband, these two communities then combined to become one, using the name of the Borough of Jim Thorpe. Patsy's decision was in direct opposition to the wishes of some of his children from previous marriages. She has since died.

The appellees do not dispute that Patsy Thorpe had the legal authority to decide where to bury Jim Thorpe. However, the appellees filed a complaint in 2010 alleging that the Borough of Jim Thorpe was in violation of the Native American Grave Protection and Repatriations Act ("NAGPRA") and that the body should be disinterred and returned to Oklahoma for burial on Sac and Fox grounds. The District Court ruled in favor of the appellees, reasoning that the Borough of Jim Thorpe fell under the definition of "museum" in NAGPRA because the town receives federal money and is therefore subject to repatriation request.

On appeal, the Third Circuit looked closely at the wording of the statute and legislative history to determine whether the Borough could be considered a museum under NAGPRA. This law was originally made necessary by the rampant looting of Native American burial sites in previous decades, which led to museums having large collections of funerary objects and remains in their collections. Congress understood the need for a repatriation process to begin in order to restore the objects and remains to the tribes to which they rightfully belonged. NAGPRA was modeled on the National Museum of the American Indian Act, which authorized repatriation of funerary objects and remains from the Smithsonian collection back to their respective tribes. NAGPRA extended the Act to include all "Federal agencies and museums receiving Federal funds."

NAGPRA has a broad definition of museum, which includes "any institution or State or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American cultural items." While the Borough of Jim Thorpe does have control over Jim Thorpe's remains and it does receive federal funds, the Circuit Court was unwilling to extend the definition of museum to the Borough. The Court looked at the plain meaning of the text and reasoned that the Court should use the ordinary meaning of the word "museum" and not interpret it so as to lead to absurd results. The Court found that such an approach was also in accord with the intent of Congress. Finally, the Court determined that if the definition of "museum" were expanded in the manner favored by plaintiffs, it would allow any Native American to disinter remains of his or her tribe members and remove them to tribal lands despite the wishes of the deceased. The Court did not believe that Congress intended this to happen, although it would be an inevitable consequence if the District Court's interpretation were allowed to stand. Accordingly, the Third Circuit reversed the judgment of the District Court and remanded the case for entry of judgment in favor of the Borough of Jim Thorpe.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/132446p.pdf

Panel (if known): McKee, Chief Judge and Chagares and Schwartz, Circuit Judges

Argument Date: February 14, 2014

Date of Issued Opinion: October 23, 2014

Docket Number: No. 13-2446

Decided: Reversed and remanded

Case Alert Author: Shanna Lafferty

Counsel: William J. Schwab, Esq., Vincent R. Garvey, Esq., Counsel for Appellants; Christopher G. Fusco, Attorney for Cross-Appellees; Charles L. Riddle, Esq., Stephen R. Ward, Esq., Daniel E. Gomez, Esq., Attorneys for Appellees; Daniel H. Wheeler, Esq., Attorney for Amicus Curiae Michael Koehler and John Thorpe; Michael Campbell, Esq., Attorney for Amicus Curia The National Congress of the American Indians

Author of Opinion: Judge McKee

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 10/27/2014 10:52 AM     3rd Circuit     Comments (0)  

October 26, 2014
  Citizen Center v. Gessler- Tenth Circuit
Headline: Tenth Circuit holds that non-profit organization may bring suit against Colorado Secretary of State for violation of members' constitutional rights arising from use of traceable ballots

Areas of Law: Constitutional Law

Issues Presented:

1. Should Citizen Center's claims that traceable ballots violated members' constitutional rights be dismissed for mootness after the voting procedures in Colorado were changed?
2. Should Citizen Center's claims that traceable ballots violated members' constitutional rights be dismissed for lack of standing?
3. Did Citizen Center sufficiently state a claim against the clerks when they failed to allege that the clerks discriminated against voters because voting procedures varied by county?

Brief Summary:

Colorado non-profit Citizen Center brought suit against the Secretary of State and clerks from five Colorado counties, alleging that the use of traceable ballots violated their rights to voting, free speech and association, substantive due process, procedural due process and equal protection. After addressing the mootness and standing challenges raised by the defendants, the court held that the first amended complaint failed to state a valid claim against the clerks, but that a valid claim remained against the Secretary of State for federal equal protection and procedural due process claims.

Extended Summary:

Election officials in six Colorado counties had the ability to potentially learn how individuals voted because ballots were traceable in May, 2012. Colorado non-profit organization Citizen Center sued the Secretary of State and the clerks from five of the six counties, stating that the use of traceable ballots violated the constitutional rights of members. Citizen Center alleged that the ballots violated members' constitutional rights involving voting, free speech and association, substantive due process, equal protection and procedural due process. Citizen Center also alleged violations of the Colorado Constitution.

Defendants moved to dismiss for lack of standing, and alternatively, for failure to state a claim. The district court dismissed the complaint on standing grounds, and Citizen Center appealed. On appeal, three issues were considered: (1) mootness, (2) standing, and (3) sufficiency of the allegations against the clerks under Federal Rule of Civil Procedure 12(b)(6). The majority ruled that (1) the claims were partially moot due to new regulations banning some of the challenged regulations; (2) Citizen Center had standing on the equal protection and procedural due process claims, but that the injury is too speculative for standing on the other claims; and (3) The first amended complaint failed to state a valid claim against the clerks for denial of equal protection or procedural due process. Thus, the only claim that remained was the claim against the Secretary of State for denial of equal protection and procedural due process.

The ballots at issue had unique barcodes, and some of them may be unique among those cast on an electronic voting machine, and some were unique within a batch of ballots. Unique barcodes were used in three of the counties and could identify the ballot as belonging to a specific voter. For those that were unique among those cast on an electronic-voting machine, officials could record the date of voting, the machine's identifier, and the precinct number or type of ballot used by the voter. If compared with other data, election officials could trace a ballot when it was unique among the ballots cast on a specific voting machine. These ballots were used in all six counties. Finally, for the ballots that could be unique within a single batch, a batch sheet listing names, voter identification numbers, precinct numbers, ballot styles and other information were included. Due to the small size of the batches, some of the ballots could have been unique, and election officials may have been able to trace a ballot by comparing it to information on the batch sheet on some occasions. Four of the counties used this method.

Citizen Center alleged that the ballots' traceability subjected members to fear that they might be identified by government officials and thus limited their ability to freely exercise their fundamental right to vote. Further, Citizen Center alleged that the election procedures "substantially burden, infringe and chill" the members' constitutional rights to vote, engage in free speech and association, enjoy substantive and procedural due process and equal protection.

Colorado election officials are banned from disclosing how any elector voted, and all mail ballots have secrecy envelopes to prevent officials from learning how a citizen voted. Citizen Center argued that the election officials in three counties traced the ballots or failed to safeguard the secrecy of the voters' ballots. In Mesa and Larimer Counties, the ballots of public officials were traced and publicized, and in Jefferson County, the electoral choices of 30 voters were published for 1.5 years.

The court noted that the Secretary of State changed its voting regulations, which now prohibit counties from printing ballots with unique numbers or barcodes; require counties that use rotating numbers to print at least ten ballots of each ballot style for each number; and direct county clerks to "dissociate any batch number that could trace a ballot back to the specific voter who cast it from the counted ballots not later than the final certification of the abstract of votes cast." Defendants argued that the action was moot because (1) only the 2012 procedures were challenged and that election had passed; (2) the Secretary of State adopted new regulations and; (3) the action was prudentially moot (the court explained that a case is prudentially moot if "circumstances [have] changes since the beginning of the litigation that forestall any occasion for meaningful relief." S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997)).

The court began by addressing the mootness issue over standing issues. It noted that a live controversy was required in order to establish federal jurisdiction. The court held that the passing of the 2012 election did not render Citizen Center's claim moot because it was not trying to enjoin the use of traceable ballots for just the 2012 election, but for all future elections as well.

The court stated that the new regulations moot only Citizen Center's challenges to the use of unique numbers and barcodes and the use of a unique ballot within a batch after final certification of a vote. The court noted that even if ten copies of every ballot style are used, some ballots may remain traceable because they could still be unique when cast on a voting machine or within a batch before final certification.

The court rejected Citizen Center's argument that the voluntary-cessation exception to the mootness doctrine should apply. The court explained that voluntary cessation rarely works because a party should not be allowed to temporarily change behavior in order to avoid judicial review. In the present case, however, the government has not openly expressed the intent to reenact the repealed regulation, and the clerks have not threatened to ignore the new regulations.

The court then stated that the doctrine of prudential mootness does not apply to the part of the case that otherwise survives. The regulatory changes did not completely eliminate the threat of traceable ballots when voters use unique numbers or barcodes and they are unique in a batch prior to certification. Thus, because a judgment for Citizen Center could give meaningful relief, the prudential mootness doctrine did not apply.

The majority then addressed the issue of standing, reviewing the district court's decision de novo. In order to have constitutional standing there must be (1) injury in fact; (2) causation; and (3) redressability. Citizen Center's members must have standing to sue in their own right for Citizen Center to be able to pursue its claims.

The Secretary of State argued that Citizen Center failed to proffer any members who were harmed, but the court stated that it would conclude that Citizen Center satisfied its burden of identifying members who were harmed by providing affidavits from eleven individuals who were harmed by the traceable ballots.

The court then addressed injury in fact, rejecting the district court's rationale that there was no injury in fact because absolute anonymity is not a "legally protected federal interest." The court noted that for standing purposes, it must assume that each claim is legally valid and must not address the merits of the claim with standing. The plaintiffs must, however, have a legal right to do what they claim is being infringed. The court addressed Citizen Center's theories of injury and determined that they did not support standing.

First, the risk that election officials could determine how a member voted did not constitute an injury in fact because the risk was speculative. The majority noted that safeguards in the Colorado Constitution prevented this from happening and noted that Citizen Center did not allege that its members were among those whose ballots were actually traced and did not allege that election officials were likely to trace members' ballots. The court stated that the two cases relied upon by Citizen Center, Gredinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), and Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), were distinguishable. Greidinger was distinguishable because the plaintiff in that case was denied the right to vote, whereas in the present case, the argument was that the use of traceable ballots discouraged voting. Stewart was distinguishable because in that case, it was inevitable that mistakes in voting would be made, whereas here, Citizen Center cannot say that the votes of members would inevitably be traced.

The court also rejected Citizen Center's argument that injury in fact arises from the chilling effect that the traceable ballots may have on its members. The court noted that the Supreme Court has held that a chilling effect does not create an injury in fact, citing Laird v. Tatum, 408 U.S. 1, 13-14 (1972). It also cited Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc), in which the court required the plaintiffs to present evidence that they actually intended to refrain from the activity in question. In the present case, Citizen Center has not provided evidence that members intend to refrain from voting because their ballots might be traced. In fact, members stated that they do intend to continue voting in spite of this possibility. The court held that the chill was too speculative to constitute an injury in fact.

With respect to the equal protection claims, the court held that Citizen Center sufficiently pled an injury in fact that there was an unequal imposition of the risk that a traceable ballot could reveal how a member voted, based on where the voter lives. The court referred to American Civil Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313 (10th Cir. 2008), where the court held that in-person voters could challenge the requirement that in person voters had to present a photo identification to vote, but absentee voters did not. Citizen Center alleged an injury in fact based on the difference in treatment similar to the in person voters in Santillanes.

The majority concluded that the procedural due process claims sufficiently alleged an additional injury in fact that there were inadequate safeguards protecting the member's interest in the secrecy of the ballot guaranteed by the Colorado Constitution. The court stated that Citizen Center sufficiently alleged causation and redressability.

The clerks argued that Citizen Center could not show redressability on the procedural due process claim because it was asking for an injunction on practices that had been reformed, and had not shown that the clerks could satisfy their constitutional and statutory obligations without the practices at issue. The court rejected both of these arguments - the first for mootness and the second because Citizen Center alleges that another Colorado county uses untraceable ballots and is able to comply with the Colorado Constitution. The court concluded that the proposed injunction would redress the injury.

The court disagreed with the clerks' contention that they lacked the power to redress the injury alleged for the equal protection claim. The court stated that a judicial order enjoining the clerks from using traceable ballots would eliminate the alleged inequality, and, as such, the equal protection claims were redressable.

The court then rejected the Secretary of State's argument that it lacked the authority to remedy the issues raised. The court noted that Colorado law requires the Secretary of State's approval for ballot plans set forth by clerks. This approval makes the claims redressable against the Secretary of State.

The court rejected the clerks' argument that Citizen Center's request for secret ballots is too vague or generalized for constitutional standing. It first noted the inadequacy of the argument in the brief itself, and then noted that Citizen Center did identify the right being invoked, which made the claim specific enough for constitutional standing.

Next, the court addressed the clerks' motion to dismiss for failure to state a claim. With respect to the procedural due process claim the court found that the complaint was facially deficient because Citizen Center lacks a liberty interest in an untraceable ballot. Traceability alone is not a violation of the Colorado Constitution's guarantee of ballot secrecy, because Colorado courts have ruled that voter secrecy is preserved when officials do not actually learn how an individual voted. The court cited to Jones v. Samora, 318 P.3d 462 (Colo. 2014), where the Colorado Supreme Court held that election officials' use of traceable ballots did not violate the Colorado Constitution, because nobody actually took advantage of the opportunity to learn how an individual voted. There was no protected liberty interest alleged by Citizen Center, because the Colorado Constitution dd not protect against traceable ballots themselves. Without establishing a protected liberty interest, the procedural due process claims must fail.

The equal protection claims failed because Citizen Center did not allege that a county clerk discriminated between voters who resided in the same county, so there was no equal protection violation by any of the clerks. The court cited to Dunn v. Blumstein, 405 U.S. 330, 336 (1972), which stated that in the context of voting, citizens have a constitutional right to participate in elections on an equal basis with others in the same jurisdiction. In the present case, each voter in the same county was treated alike. Citizen Center's allegation that the equal protection right extends to voters in different counties went beyond the right set forth in Dunn. Further, there was no basis for holding the clerks responsible for inter-county differences. Each clerk only had power in his or her county and could not have violated the Equal Protection Clause by acting differently than a clerk in a different county.

The court concluded that Citizen Center did not have standing on its substantive due process claims and the rights to vote and to free speech, but that it did have standing on the federal claims against the Secretary of State and the clerks for denial of procedural due process and equal protection, as well as against the clerks for state claims involving denial of procedural due process and equal protection. It affirmed the dismissal of the claims involving denial of substantive due process, the right to vote, and the right to free speech. The court also agreed with the clerks' alternative argument for dismissal for failure to state a valid claim under Rule 12(b)(6). The claims against the Secretary of State, however, were valid because the Secretary of State did not move for dismissal under 12(b)(6). Thus, the court reversed and remanded on the dismissal of the federal claims against the Secretary of State for denial of procedural due process and equal protection.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/12/12-1414.pdf

Panel: Holmes, McKay, Bacharach

Date of Issued Opinion: October 21, 2014

Docket Number: No. 12-1414

Decided: Dismissal of the federal claims against the Secretary of State was reversed and remanded; all other claims were affirmed.

Counsel: Robert A. McGuire, III, McGuire Bains LLC, Lone Tree, CO (Jeffrey David Baines, McGuire Baines LLC, Denver, CO, on the briefs), for Plaintiff-Appellant.

David Hughes, Boulder County Attorney, Boulder CO, and LeeAnn Morrill, First Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, CO (Writer Mott and David Wunderlich, Assistant Jefferson County Attorneys, Golden, CO, David Ayraud and William G. Ressue, Larimer County Attorney's Office, Fort Collins, CO, Gillian Dale and Tom Lyons, Hall & Evans, Denver, CO, Bryan Treu, Eagle County Attorney, Eagle, CO and Jennifer Davis, Chaffee County Attorney, Salida, CO, and John W. Suthers, Attorney General, with them on the briefs) for Defendants-Appellees.

Author: Bacharach

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 10/26/2014 09:17 AM     10th Circuit     Comments (0)  

October 24, 2014
  Mastafa v. Chevron Corp.
Headline: Second Circuit Affirms the Dismissal of Five Iraqi Nationals' Claims Against Corporations for Illicitly Funding Saddam Hussein's Regime

Area of Law: International Law

Issue(s) Presented: Whether Iraqi nationals, tortured and abused during the Saddam Hussein regime, can recover damages from corporations who allegedly paid kickbacks to the regime.

Brief Summary:
Five Iraqi nationals filed a complaint against Chevron and Banque Nationale de Paris Paribas claiming that they or their relatives were tortured, imprisoned, and in some cases executed by agents of Saddam Hussein and that the defendant corporations had aided and abetted by paying Hussein's regime illegal kickbacks. The district court dismissed the complaint. The Second Circuit affirmed, holding that a recent Supreme Court decision forecloses recovery under the Torture Victim Protection Act because the Act imposes liability on individuals, not corporations. The Circuit also held it lacked jurisdiction on the Alien Tort Statute claim because the plaintiffs' complaint lacked a plausible allegation that the defendants had purposefully aided and abetted alleged violations of customary international law.

The full text of the opinion may be found at http://www.ca2.uscourts.gov/de...44726f2ed6e/1/hilite/

Extended Summary: Five Iraqi nationals brought suit against Chevron Corporation and Banque Nationale de Paris Paribas, claiming that they or their family members were tortured, imprisoned, and in some cases executed by agents of Saddam Hussein and that defendants were liable for illicitly funding the regime. Plaintiffs brought their claims under the Alien Tort Statute of 1789 (ATS) and the Torture Victim Protection Act of 1991 (TVPA). The district court dismissed the claims under Federal Rules of Civil Procedure 12(b)(1) and (6). Plaintiffs appealed and the Second Circuit stayed the appeal pending the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. During the stay, the Supreme Court issued another decision relevant to this case, Mohamad v. Palestinian Authority. After the Supreme Court issued the Kiobel decision, the Second Circuit lifted the stay and affirmed the dismissal of the case in full.

The Torture Victim Protection Act imposes liability on "[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation" subjects another individual to torture or extrajudicial killing. In Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012), the Supreme Court held that the TVPA "authorizes liability solely against natural persons," and "does not impose liability against organizations," including corporations. The parties agreed that this decision foreclosed plaintiffs' claims under the TVPA.

The Alien Tort Statute establishes district court 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". In Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), the Supreme Court held "the presumption against extraterritoriality applies to claims under the ATS . . . and case[s] seeking relief for violations of the law of nations occurring outside the United States [are] barred." The Second Circuit held that when faced with ATS claims, courts should focus on the particular conduct alleged in the complaint, and then follow a two-step jurisdictional analysis of that conduct. The first step is to determine whether the complained-of conduct - i.e., the "conduct which constitutes a violation of the law of nations or aiding and abetting such a violation" - sufficiently touches and concerns the United States so as to displace the presumption against extraterritoriality. The second step is to "glimps[e] at the merits" and determine whether the complaint plausibly alleges a violation under the ATS.

Applying this standard to the instant complaint, the Second Circuit concluded that it satisfied the first step because of its allegations about financial transactions that occurred in the United States. The complaint failed on the second step, however, because it failed to plausibly plead that the defendants had the mens rea required to establish a violation of the law of nations. The complaint lacked a plausible allegation that the defendants had acted with the purpose of facilitating human rights abuses.

Panel: Circuit Judges Cabranes, Straub, and Livingston

Argument Date: 05/28/2014

Date of Issued Opinion: 10/23/2014

Docket Number: No. 10‐5258‐cv

Decided: Affirmed

Case Alert Author: Joan O'Connor Archer

Counsel: John T. Murray, Murray & Murray Co., L.P.A., Sandusky, Ohio, for Plaintiffs‐Appellants.

Meir Feder, Thomas E. Lynch, Jones Day, New York, NY; Gregory G. Katsas, Michael A. Carvin, Jones Day, Washington, D.C., for Defendant‐ Appellee Chevron Corp.

Robert S. Bennett, Ellen Kennedy, Hogan Lovells US LLP, Washington, D.C.; Jennifer L. Spaziano, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C., for Defendant‐Appellee Banque Nationale de Paris Paribas.

Terrence Patrick Collingsworth, Conrad & Scherer, LLP, Washington, D.C., for amicus curiae Human Rights Watch and Labor Organizations.

Author of Opinion: Judge Cabranes

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/24/2014 11:01 AM     2nd Circuit     Comments (0)  

October 23, 2014
  Estate of Frank P. Lagano v. Bergen County Prosecutor's Office - Third Circuit
Headline: Third Circuit vacates district court's rulings that BCPO and its officers are not "persons" under civil rights statutes and remands to lower court for further findings.

Area of Law: Due Process and Civil Rights

Issues Presented: Whether the plaintiff stated a claim for relief by alleging that the State violated the decedent's due process and civil rights by allegedly disclosing his identity as a confidential informant and conducting a search and seizure of his home?

Brief Summary: The Third Circuit affirmed in part the district court's ruling granting the State's motion to dismiss but ultimately vacated many of the district court's findings and allowed the Plaintiff to file a second amended complaint. The Plaintiff, Estate of Lagano (Estate) alleges in its complaint that the Bergen County Prosecutor's Office (BCPO) and its Chief Detective, Michael Mordaga, unlawfully searched Lagano's house and seized items from it as well as put him in harm that led to his death by revealing that he was a confidential informant. The Third Circuit vacated the district court's rulings that the defendants cannot be sued under 42 U.S.C. §§ 1983 and 1985 and the New Jersey Civil Rights Act. Next, the Third Circuit found that the district court did not use the correct standards or case law to determine the claims of sovereign immunity and qualified immunity. Finally, the Third Circuit found the claim of unlawful search and seizure from 2005 to be barred by the statute of limitations.

Extended Summary: Frank Lagano was the subject of an organized crime investigation by the BCPO where Michael Mordaga was Chief of Detectives. On December 1, 2004, BCPO detectives executed a search warrant at Lagano's home and safe deposit boxes and seized cash and other items. He was charged with racketeering and other crimes. The Estate alleges that Lagano agreed to serve as a confidential informant for James Sweeney and that Mordaga and Lagano did not have a good relationship.

The Estate alleges that sometime later BCPO personnel disclosed to members of "traditional Organized Crime families" that Lagano had been an informant. On April 12, 2007, Lagano was shot and killed. The Estate asserts that Mordaga and BCPO are responsible for Lagano's death and that they conspired to illegally arrest and steal from Lagano. In 2010, James Sweeney, a Sergeant State Investigator filed a complaint alleging widespread corruption within the BCPO, including allegations related to Mordaga's relationship with Lagano and the circumstances surrounding Lagano's murder. On August 29, 2012, the Estate filed a complaint based primarily on Sweeney's complaint. The District Court dismissed all claims against all defendants, finding the State had Eleventh Amendment sovereign immunity because neither the BCPO nor Mordaga were "persons," Mordaga had qualified immunity as to two of the three counts, and the third count was time barred.

The Third Circuit first found that the district court erred when it found that the BCPO and Mordaga could not be sued under 42 U.S.C. §§ 1983 and 1985 because they are not "persons" under the statutes. First finding that "person" has the same meaning under both statutes §§ 1983 and 1985, the Third Circuit then found that the complaint did not merely allege that Mordaga and other BCPO officials were performing "classic functions of law enforcement." Rather, the district court erred by granting sovereign immunity because the complaint alleged a relationship beyond the defendants' official roles within the BCPO. The Third Circuit reasoned that Mordaga was amenable to suit because he was sued in his personal capacity. For the same reason, the Third Circuit vacated the ruling that the defendants cannot be sued under the New Jersey Civil Rights Act.

Next, The Third Circuit found that the district court erroneously used inapplicable case law to find that the BCPO had Eleventh Amendment sovereign immunity. The panel remanded the case on this issue so that the district court could apply the correct case law. Furthermore, the Third Circuit also found that the district court used an unduly narrow construction to define the rights of confidential informants. The Estate can allege a state-created danger theory despite the fact that there had been no previous reported cases extending it to confidential informants. Without reaching the merits, the Third Circuit found that the district court did not use the correct standard and vacated its decision finding in favor of Mordaga's qualified immunity.

Finally, the Third Circuit rejected the Estate's argument that the statute of limitations regarding the search and seizure should be determined from the Sweeney complaint in lieu of from the date of the search in 2005. Finding the record demonstrated that Lagano knew about the allegedly unlawful search and seizure when it occurred in 2005, the Third Circuit held that the search and seizure claim expired in 2007 and was time barred. The Third Circuit allowed the Estate to file a second amended complaint upon remand.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133232p.pdf

Panel (if known): Chagares, Greenaway, Jr. and Vanaskie, Circuit Judges

Argument Date: March 19, 2013

Date of Issued Opinion: October 15, 2014

Docket Number: No. 13-3232

Decided: Affirmed in part, vacated in part, remanded for further proceedings

Case Alert Author: Antoinette Snodgrass

Counsel: William H. Buckman, Esq., Edward M. Koch, Esq., and David M. Ragonese, Esq. for Plaintiff/Appellant Estate of Frank P. Lagano; John J Hoffman, Esq., Lisa A. Puglisi, Esq., Brian G. Flanagan, Esq., and Eric S. Pasternack, Esq. for Defendants/Appellees Office of Attorney General of New Jersey

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/23/2014 09:50 AM     3rd Circuit     Comments (0)  

October 15, 2014
  Veasey v. Perry - Fifth Circuit
Headline: Fifth Circuit Reinstates Texas Voter ID Law for Upcoming Election.

Area of Law: Election law.

Issue Presented: Whether, in light of the importance of maintaining the status quo on the eve of an election, the District Court's judgment holding the Texas voter identification law unconstitutional should be stayed pending appeal.

Brief Summary: The U.S. District Court for the Southern District of Texas enjoined Texas's voter identification law on October 11, nine days before early voting begins and twenty-four days before Election Day. The district court's decision was based on its determination that the ID requirements, which had been enacted by the state legislature in 2011, abridged the right to vote, discriminated against minority voters, and amounted to an unconstitutional poll tax. The State of Texas filed an emergency motion for stay pending appeal in the U.S. Court of Appeals for the Fifth Circuit. Based primarily on the extremely fast-approaching election date, the Fifth Circuit stayed the district court's judgment pending appeal. As a result, the challenged requirements will apply in the upcoming November 2014 election, unless the Supreme Court intervenes to vacate the Fifth Circuit's stay.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/14/14-41127-CV0.pdf.

Panel: Circuit Judges Clement, Haynes, and Costa

Argument Date: N/A

Date of Issued Opinion: 10/14/2014

Docket Number: No. 14-41127

Decided: The State's motion for a stay of the district court's judgment pending appeal is granted.

Case Alert Author: Kirsty Davis

Counsel: Chad Dunn, Brazil & Dunn, for Plaintiffs-Appellees Veasey, Hamilton, Deleon, Carrier, Burns, Montez, Pope, Ortiz, Ozias, League of United Latin American Citizens, Mellor-Crumley, and Dallas County, TX; Anna Baldwin, U.S. Dept. of Justice, for Plaintiff-Appellee United States of America; Leah Aden, NAACP Legal Defense & Educational Fund, Inc., for Intervenor Plaintiffs-Appellees Imani Clark, and Texas League of Young Voters Education Fund; Rolando Rios for Intervenor Plaintiff-Appellee Texas Association of Hispanic County Judges and County Commissioners; Preston Henrichson for Intervenor Plaintiff-Appellee Mexican American Legislative Caucus-Texas House of Representatives; Vishal Agraharkar, New York University, Brennan Center for Justice, for Plaintiff-Appellee Texas State Conference of NAACP Branches; Jose Garza for Plaintiff-Appellees Espinosa, Estrada, La Union Del Pueblo Entero, Incorporated, Martinez Lara, Medez, and Taylor; Jonathan Mitchell, Solicitor General, for Defendant-Appellants Perry, in his Official Capacity as Governor of Texas, Berry, in her Official capacity as Texas Secretary of State, the State of Texas, and Mcgraw, in his Official Capacity as Director of the Texas Dept. of Public Safety.

Author of Opinion: Judge Clement (Judge Costa concurring in the judgment)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 10/15/2014 09:35 PM     5th Circuit     Comments (0)  

October 13, 2014
  United States of America v. Robert Paladino - Third Circuit
Case Name: United States of America v. Robert Paladino - Third Circuit

Headline: Third Circuit rules denial of allocution during sentencing proceedings are reversible plain error even if the defense and prosecution reached a plea agreement.

Area of Law: Criminal Sentencing

Issues Presented: Whether a District Court commits plain error at a sentencing hearing when it fails to address the defendant even though the defense and prosecution had reached a plea agreement?

Brief Summary: Robert Paladino ("Paladino") pled guilty in November 21, 2006. On April 24, 2013, Paladino was released from custody and began the supervised release portion of his sentence. Between July and August of 2013, Paladino's probation officer filed two petitions reporting three violations of his supervised release conditions. During Paladino's revocation hearing on August 12, 2013, the only time the District Court addressed Paladino was when the District Court asked whether he understood the plea agreement. The Third Circuit vacated the District Court's sentence and remanded the proceedings for new sentencing. The Third Circuit concluded that the District Court committed reversible plain error because it did not afford Defendant the opportunity to speak during the sentencing hearing. The Third Circuit also concluded that a defendant must be provided with an opportunity for allocution even when there is a plea deal as the District Court has discretion to accept or deny the plea agreement.

Significance (if any):

Extended Summary: Robert Paladino pled guilty in November 21, 2006 to one count of distributing material depicting the sexual exploitation of a minor. On April 20, 2007, The District Court sentenced Paladino to 120 months imprisonment followed by a ten-year term of supervised release. On April 24, 2013, Paladino was released from custody and began the supervised release portion of his sentence. Between July and August of 2013, Paladino's probation officer filed two petitions reporting three violations of his supervised release conditions. During Paladino's revocation hearing on August 12, 2013, the District Court asked Paladino's counsel whether they contested any of the alleged violations. Paladino's counsel stated objections. The Government and Paladino's defense counsel reached an agreement for a period of imprisonment of eight months followed by the remaining supervised release. For the first time, the District Court addressed Paladino and asked whether he understood the deal, to which Paladino's reply was "Yes." The District Court sentenced Paladino pursuant to the agreement and modified the terms of the supervised release conditions. Paladino appealed, arguing the District Court committed plain error by not allowing Paladino the opportunity of allocution.

The Third Circuit vacated the District Court's sentence and remanded the proceedings for new sentencing. The Third Circuit concluded the denial of allocution rights of a criminal defendant was reversible plain error. Since the Supreme Court has previously ruled that district courts must unambiguously address themselves to the defendant, the Third Circuit determined there was a plain error by the District Court in denying Paladino the right to speak. Second, the Third Circuit concluded the right of allocution is a substantial right that could play a role in sentencing decisions, especially as the District Court had discretion during sentencing. Lastly, the Third Circuit concluded that even in the case of plea agreements, the District Court still has the discretion to approve or deny the agreements, and therefore allocution is a substantial right even when an agreement is reached.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133689p.pdf.

Panel (if known): Fuentes, Nygaard, and Greenaway, Jr., Circuit Judges.

Argument Date: June 24, 2014

Argument Location: Philadelphia, PA

Date of Issued Opinion: October 8, 2014

Docket Number: No. 13-3689

Decided: Vacated and remanded to the District Court for resentencing.

Case Alert Author: Ilya Gomelsky

Counsel: Sarah S. Gannett, Esq. for Appellant; Rebecca Ross Haywood, Esq. and Michael L. Ivory, Esq. for Appellee.

Author of Opinion: Greenway, Jr., Circuit Judge.

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/13/2014 02:54 PM     3rd Circuit     Comments (0)  

  Courtney Douglass v. Convergent Outsourcing - Third Circuit
Headline: Third Circuit Holds Visible Debt Collection Account Number on Envelope a Violation of FDCPA

Area of Law: Federal Debt Collection Practices Act

Issues Presented: Is the FDCPA violated where a debt collector sends a letter to a debtor in which the debtor's account number is visible through the cellophane window on the envelope?

Brief Summary:

Douglass received a debt collection letter from Convergent Outsourcing. The letter had a debt collection account number visible through the cellophane window on the envelope. The Third Circuit held, without deciding if a benign language exception existed to 15 U.S.C. § 1692f(8), that an account number capable of revealing that a recipient was a debtor was a violation within the scope of the plain language of the Fair Debt Collection Practices Act. The Third Circuit vacated and remanded to the District Court for further proceedings.

Extended Summary:

Douglass, an alleged debtor, received a mailing from Convergent Outsourcing (Convergent), a debt collector. Through the cellophane window on the envelope, a portion of the debt collection letter was visible. Convergent argued that a plain reading of 15 U.S.C. § 1692f(8) - prohibiting all markings on debt collection envelops except for the name and address of the debt collection and a limited form of the collectors' name - would produce absurd results. Convergent argued that the account number was "benign language" and urged the Third Circuit to adopt an exception for benign language.
The Third Circuit first held that language visible through a window into the envelope fell under §1692(f)(8). Further the Court held that it was unnecessary for the Court to reach the question of whether there is a benign language exception because the account number was not benign. The Third Circuit held that an account number on a debt collection envelope is a violation of § 1692f(8). The Third Circuit distinguished cases in other Circuits that found benign language exceptions by noting that benign language was incapable of violating the privacy of alleged debtors. The Third Circuit reasoned, however, that an account number for a debt collection account could reveal that the named person was a debtor. For these reasons, the Third Circuit reversed the grant of summary judgment in favor of Convergent and remanded for further proceedings.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/133588pa.pdf

Panel: Fisher and Scirica, Circuit Judges, Mariani, District Judge

Argument Date: April 8, 2014

Date of Issued Opinion: October 10, 2014

Docket Number: No. 13-3588

Decided: Vacated and Remanded

Case Alert Author: Philip Jones

Counsel:

Cary L. Flitter, Esq. (argued), Andrew M. Milz, Esq., Sara Ellen M. Hutchison, Esq. for Appellant

Richard J. Perr, Esq. (argued), Ed W. Walton, Esq. for Appellee

Author of Opinion: Scirica, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/13/2014 02:52 PM     3rd Circuit     Comments (0)  

  A.S. v. SmithKline Beecham Corp. - Third Circuit
Headline: Third Circuit Holds Re-Removal Based on Diversity Jurisdiction One Year After Case Commenced was Untimely: Orders Remand Back to State Court

Area of Law: Civil Procedure

Issue Presented: Whether a defendant may remove a case a second time based on diversity jurisdiction more than one year after the commencement of the case.

Brief Summary: A.S. and Sallee Miller ("Plaintiffs") filed suit in Pennsylvania state court against GlaxoSmithKline LLC ("GSK") claiming that its drug, Paxil, caused birth defects. GSK removed the case to the United States District Court for the Eastern District of Pennsylvania. The District Court remanded the case, finding that GSK was a citizen of Pennsylvania and therefore ineligible to remove the case. After remand, the Third Circuit decided Johnson v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir. 2013), in which the Third Circuit held that GSK was a citizen of Delaware. Within thirty days of Johnson, GSK re-removed the case. This time, the District Court denied Plaintiffs' motion to remand and certified its order for interlocutory review pursuant to 28 U.S.C. § 1292(b) to allow this Court to determine the propriety of re-removal. The Third Circuit held the second removal was untimely, reversed the order denying Plaintiffs' remand, and directed the District Court to remand this case back to state court.

Extended Summary: On September 30, 2011, A.S., who suffers from a congenital birth defect, and his mother, Sallee Miller, who ingested Paxil while pregnant, filed suit in Philadelphia County Court of Common Pleas against SmithKline Beecham Corp. d/b/a GlaxoSmithKline LLC ("GSK") claiming that its drug, Paxil, caused birth defects. The complaint alleged that all parties were citizens of Pennsylvania. GSK removed the case within thirty days of receipt of the complaint based upon diversity. On Plaintiffs' motion, the case was consolidated with a number of other Paxil cases before a district court judge who had previously held that GSK was a citizen of Pennsylvania. Consistent with that holding, the District Court remanded this case along with the other consolidated cases to state court, holding that GSK was a citizen of Pennsylvania and could not remove a case from Pennsylvania state court to federal court. Patton ex rel. Daniels-Patton v. SmithKline Beecham Corp. The same judge also issued an opinion identical to Patton in Maldonado ex rel. Maldonado v. SmithKline Beecham Corp., which remanded twenty-one other Paxil cases to state court. This case returned to state court on January 4, 2012.

On June 7, 2013, the Third Circuit issued Johnson, which held that GSK was a citizen of Delaware. In reaching that holding, this Court explicitly rejected the reasoning in Patton and Maldonado. Less than thirty days after the Johnson decision, GSK filed a second notice of removal in this case and in eight other cases with the same procedural posture. Guddeck v. SmithKline Beecham Corp. was the first case holding that removal to federal court was proper. In Guddeck, the District Court noted that there was "no dispute that the parties are of diverse citizenship" after Johnson, that the amount-in-controversy requirement was satisfied, and that GSK was not an in-state defendant. Guddeck also held that Johnson established that the case was "erroneously remanded" after the first removal, Johnson "provided a new and different ground for a second notice of removal," and GSK's second "removal notice [was] simply effectuating what was a timely and proper first removal." The District Court in this present case adopted Guddeck's reasoning and denied Plaintiffs' motion to remand.

After the District Court denied remand to state court, this case was transferred to the Middle District of Pennsylvania, where Plaintiffs filed a motion to certify for interlocutory appeal the following question: whether a defendant may remove a case a second time based on diversity jurisdiction more than one year after the commencement of the case? The District Court certified the question for appeal, which the Third Circuit accepted pursuant to 28 U.S.C. § 1292(b). The Third Circuit held that GSK's re-removal to federal court was prohibited by § 1446(b) and remand to the state court was required. The Third Circuit explained the second removal was untimely, and reversed the order denying remand, directing the District Court remand this case to state court.

First, the Third Circuit ruled that GSK did not comply with the first paragraph of § 1446(b) because GSK's second removal occurred more than thirty days after its receipt of the initial pleading. GSK argued that § 1446(b)'s first paragraph does not bar its second removal because it does "not impose any time limits on successive removals." However, the Third Circuit noted that while the first paragraph does not explicitly mention successive removals, it does expressly forbid untimely removals. Here, the relevant notice of removal was untimely: it was filed over a year and a half after GSK was served with the initial pleading, namely the state court complaint. Therefore, GSK could not remove under the first paragraph of § 1446(b).

Next, the Third Circuit ruled that the second paragraph did not relieve GSK of the first paragraph's bar. The Third Circuit explained that the second paragraph is an exception to the thirty-day time limit in the first paragraph and sets a separate thirty-day time limit that applies when: (1) "the case stated by the initial pleading is not removable" and (2) the defendant receives "an amended pleading, motion, order or other paper" (3) from which "it may first be ascertained that the case is one which is or has become removable." In diversity cases, the second paragraph has a fourth requirement: removal may not occur "more than 1 year after the commencement of the action."

The Third Circuit ruled GSK could not rely on the second paragraph because there was no "amended pleading, motion, order or other paper" to trigger its thirty-day time limit. In general, the terms "amended pleading, motion, order or other paper" only "address[] developments within a case" and, therefore, court decisions in different cases do not count as an "order." The Third Circuit also ruled that GSK was not entitled to equitable tolling.

Lastly, the Third Circuit ruled GSK's second notice of removal could not relate back to the first notice of removal. The Third Circuit explained that any relation back in this case must be justified under a court's equitable powers. The Third Circuit explained that neither the fact that a particular judge was assigned to the case or the error in remanding the case provided a basis for equitable relief. The Third Circuit also explained that the second notice of removal does not relate back to the first notice of removal because nothing was pending in the federal court to which the second notice could relate. A copy of the Court's opinion can be found here: http://www2.ca3.uscourts.gov/opinarch/141229p.pdf

Panel (if known): Smith, Shwartz, Roth Circuit Judges

Argument Date: September 10, 2014

Date of Issued Opinion: October 9, 2014

Docket Number: No. 14-1229

Decided: Reversed and directed District Court to remand to state court

Case Alert Author: Katie Cooper Davis

Counsel: Howard J. Bashman, Esq. for the Appellants, A.S., a Minor, by Sallie Miller, Guardian, and Sallie Miller, Individually; and for Appellee SmithKline Beecham Corp d/b/a GlaxoSmithKline, Lisa S. Blatt, Esq., Andrew T. Bayman, Esq., Jeffrey S. Bucholtz, Esq., Joseph E. O'Neil, Esq.

Author of Opinion: Judge Shwartz

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/13/2014 02:49 PM     3rd Circuit     Comments (0)  

October 12, 2014
  United States v. Lewis - Tenth Circuit
Case Name: United States v. Lewis - Tenth Circuit

Headline: Tenth Circuit holds that sex offenders who relocate and fail to register under SORNA in their new state of residence can be prosecuted in the state they departed from.

Areas of Law: Criminal Law, Criminal Procedure

Issues Presented:

1. Can a sex offender who moves to a new state but fails to register under the Sex Offender Registration and Notification Act ("SORNA") be prosecuted under 18 U.S.C. § 2250 in the state from which he departed?

Brief Summary:

Defendant was convicted of statutory rape in Missouri and required to register as a sex offender. He registered in his residential state of Kansas, but afterwards relocated and failed to register in Missouri and Georgia. He was charged and convicted in Kansas for violations of SORNA and sentenced to two years in prison.

He appealed his conviction, arguing that Kansas was an improper venue because his failure to register occurred in Missouri and Georgia. The 10th Circuit affirmed the defendant's conviction, holding that venue for prosecuting 18 U.S.C. § 2250 violations is appropriate in multiple jurisdictions which include the departure jurisdiction.

Extended Summary:

In 1996, the defendant pleaded guilty to statutory rape in Missouri. He was required by the federal Sex Offender Registration and Notification Act ("SORNA") to register as a sex offender in his state of residence. He registered in 2011 in Kansas, but then abandoned his residence and left the state. Law enforcement officers in Kansas were unable to locate him in connection with an unrelated warrant and turned the matter over to U.S. Marshals, who tracked the defendant as far as Missouri but did not find him. The defendant was ultimately arrested in July 2012 in Atlanta, GA, where he had not registered as a sex offender. He was indicted in the District of Kansas for one count of failing to register under 18 U.S.C. § 2250(a).

The defendant first filed a motion to dismiss for improper venue because the alleged violations had not occurred in Kansas, arguing that he had registered appropriately in Kansas and only failed to register after he left the state. The district court denied the motion. After trial, he filed a motion for judgment of acquittal, again raising the improper venue issue and challenging the sufficiency of the evidence of venue.

The 10th Circuit reviewed the district court's legal finding of sufficient evidence to support venue using a de novo standard of review. The court described its role as deciding whether, when "viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the finder of fact, the Government proved by preponderance of direct or circumstantial evidence that the crimes charged occurred within the district." United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985).

The court began its analysis by describing the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. The first relevant provision in SORNA is the civil registration requirement, 42 U.S.C. § 16913, which requires a convicted sex offender to register and keep that registration current "in each jurisdiction where the offender resides". The court interpreted SORNA's § 16913(c) reporting obligation to require that an offender update his registration within three days of abandoning his residence. In the defendant's case, this required him to update his registration with Missouri after leaving Kansas and again with Georgia after settling there. The second relevant provision, 18 U.S.C. § 2250, is the criminal enforcement mechanism that prescribes fines or imprisonment for knowingly failing to comply with the registration provision of SORNA. To prove that the defendant violated 18 U.S.C. § 2250, the government was required to show that Lewis had an obligation to register under SORNA, that he travelled in interstate commerce, and that he knowingly failed to register or update his registration during the time period specified in the indictment.

The defendant did not dispute that the government properly established a § 2250 violation, but challenged its choice of venue. He argued that Kansas was an inappropriate venue because his reporting obligation only arose when he was in Missouri and Georgia, and so his SORNA violations only occurred in those two states. The court described the venue requirements of the United States Constitution and the Federal Rules of Criminal Procedure as requiring that prosecution take place in the district where the offense occurred unless the criminal statute or other procedure requires a different venue. 18 U.S.C. § 2250 does not have a specific venue provision, so the court was required to ascertain "the nature of the crime alleged and the location of the act or acts constituting it." United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir. 1987).

The court considered its prior holding in United States v. Murphy, 664 F.3d 798, 803 (10th Cir. 2011). In Murphy, the defendant relocated from Utah to Belize. The government prosecuted that defendant in the departure state of Utah and the 10th Circuit affirmed the conviction. The court in Murphy did not directly address the question of whether a § 2250 offense occurs in the departure district. It held that, when traveling abroad, a sex offender is required to update his registration in his departure district because of the plain language of § 16913. The requirement to update his registration "triggered" when the defendant left his permanent residence in Utah and, because SORNA does not apply extraterritorially, his departure state was the only appropriate state with which to update his registration. The court reasoned that this necessarily permitted venue to lie in the departure state.

Murphy also held that the departure district remains a "jurisdiction involved" for purposes of § 16913 even after the sex offender has left the state. The reporting obligation to that state does not end simply because the defendant leaves it. It noted that this view is shared by the National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030-01 (July 2, 2008), which requires that a sex offender's updated registration in a new district be provided to the departure district. This allows for an "interconnected web of state registries."

The defendant argued that Murphy was wrongly decided, citing the 8th Circuit's decision in United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013). Lunsford held that "an offender who leaves a domestic jurisdiction for a foreign jurisdiction" need not "necessarily . . . update his registration in the domestic jurisdiction where he formerly resided" depending on the circumstances. The 10th Circuit disagreed with the defendant, finding Lunsford unpersuasive because that case did not contemplate the issue of venue existing in the departure district when the defendant fails to register in any subsequent domestic jurisdiction. Lunsford was critical of the argument that a sex offender is required by federal law to notify the departure jurisdiction of their relocation. The 10th Circuit noted that neither Murphy nor the present case imposed such a requirement; they only require that a sex offender update his registration after relocating, but provide that an offender can be prosecuted in the departure jurisdiction if they fail to do so.

The 10th Circuit held that Murphy was the controlling case because it established that a violation of § 2250 occurs in the departure district. Murphy relied on cases from other circuits that also found venue to be proper. Those cases relied on 18 U.S.C. § 3237, the Federal Venue Statute that allows offenses begun in one district and completed in another to be "inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). The 10th Circuit previously held that a § 2250 violation is a continuing offense. In United States v. Hinckley, 550 F.3d 926, 936 (10th Cir. 2008), the court held that "[a]n interpretation of the sex offender registration requirement that defines it in any way other than as a continuing offense would result in absurdity." The court held that a SORNA violation extends from the moment a sex offender abandons his residence in the departure jurisdiction until the moment he either registers or is arrested, and that this creates multiple venues in which the sex offender can be prosecuted under § 2250.

The court noted that its decision was consistent with those of other circuits that have also considered the matter of venue in a § 2250 prosecution. It also noted that other district courts within the 10th Circuit have reached the same conclusion. The court held that Murphy and § 3237 both provide that venue for a § 2250 violation is appropriate in the departure district.

The defendant's next argument challenged Murphy's applicability to the case. The defendant alleged that he left Kansas before the dates specified in the government's indictment. He argued that, because Murphy involved a defendant who was in Utah in the temporal time frame alleged by the government, Murphy is inapplicable when a defendant's abandonment of his residence does not fall within the indictment's prescribed timeframe. The court disagreed with this contention.

The defendant then argued that the limited factual record allowed for an inference that he had not violated the registration requirements of SORNA prior to October 1, 2011 because he had not abandoned his Kansas residence. The court disagreed, noting that the government proved by a preponderance of the evidence that the defendant had abandoned his Kansas residence.

The defendant's final argument was that the government's theory of the case relied on the premise that a sex offender has an affirmative duty to notify the state from which he departs that he is moving to another state. His challenge relies on the 9th Circuit's decision in United States v. DeJarnette, 741 F.3d 971, 984 (9th Cir. 2013), in which the defendant was convicted of sex crimes before SORNA's enactment. The defendant in DeJarnette ignored existing state and federal registration laws and moved from California to Georgia in March of 2008. SORNA became retroactively applicable to pre-Act offenders in August 2008, but the 9th Circuit held that pre-Act offenders were not required to register in the jurisdiction of their conviction if it differed from their residence when SORNA's retroactivity came into effect. The 10th Circuit disagreed with the defendant's interpretation of this case, noting that it merely established the reach of SORNA's retroactivity and was inapplicable to the defendant's case. The court held that venue for a § 2250 violation can lie in the departure district and affirmed the defendant's conviction.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3173.pdf

Panel: Tymkovich, Baldock, Bacharach

Date of Issued Opinion: September 30, 2014

Docket Number: No. 13-3173

Decided: Affirmed the district court's decision to deny Lewis's motion for a judgment of acquittal based on insufficient evidence of proper venue.

Counsel:

John K. Henderson, Jr., Assistant Federal Public Defender, Federal Public
Defender's Office, Wichita, Kansas, for Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United
States Attorney, with him on the brief), United States Attorney's Office, Topeka,
Kansas, for Appellee.

Author: Tymkovich

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 10/12/2014 03:10 PM     10th Circuit     Comments (0)  

October 9, 2014
  In re Urethane Antitrust Litigation - Tenth Circuit
Case Name: In re Urethane Antitrust Litigation - Tenth Circuit

Headline: Tenth Circuit affirms $1.06 billion judgment against Dow Chemical Company under Sherman Antitrust Act for its role in price-fixing conspiracy.

Areas of Law: Antitrust Law, Civil Procedure

Issues Presented:

1. Do individualized issues relating to damages preclude Fed. R. Civ. P. 23(b)(3) class certification?

2. Did the District Court err in admitting the testimony of the plaintiffs' expert witness on statistics?

3. Is there sufficient evidence to support a price-fixing conspiracy claim without a causal connection between parallel price-increase announcements and increased prices?

4. Does distribution of damages through a pro rata reduction of the plaintiffs' damages model violate the Seventh Amendment to the United States Constitution?

Brief Summary:

The defendant (Dow Chemical Company) appealed the district court judgment against it, arguing that the plaintiffs class should not have been certified under Fed. R. Civ. P. 23(b)(3) or that certification should have been revoked on its motion because the class members had individualized issues relating to damages. It also argued that the testimony of expert witness Dr. McClave was unreliable and should not have been admitted into evidence, that evidence presented against it was insufficient to establish its liability, and that the manner in which the damages award was distributed violated the Seventh Amendment to the United States Constitution.

The Tenth Circuit held that the district court did not abuse its discretion in certifying and subsequently refusing to decertify the class because the existence and impact of a conspiracy raises common liability-related questions that predominate over the individualized questions of each class member's damages. It held that the district court did not err in admitting the expert witness' testimony because the defendant's criticism of the expert's use of statistical models spoke to the weight of the evidence and not its admissibility. It held that the evidence presented at trial was sufficient to allow the jury to find liability. Finally, the court held that allocating damages based on a pro rata reduction of the expert witness' damages model did not violate the defendant's Seventh Amendment rights because the defendant has no legal interest in the method of distribution for aggregate damages amongst class members.

Extended Summary:

A group of industrial purchasers of polyurethane products (collectively plaintiffs) sued Bayer AG, Bayer Corporation, Bayer Material Science, BASF Corporation, Huntsman International LLC, Lyondell Chemical Company, and Dow Chemical Company under the Sherman Antitrust Act, alleging a conspiracy to fix prices and allocate customers and markets. Every defendant but Dow Chemical Company settled prior to the trial. Plaintiffs subsequently dropped their allocation theory and focused solely on the price-fixing conspiracy. The jury found that the defendant participated in a price-fixing conspiracy, that the conspiracy caused plaintiffs to pay more for polyurethane products than they would have in a competitive market, and that plaintiffs suffered damages of $400,049,039. After trebling (tripling) damages under antitrust law and deducting settlements paid by the other defendants, the district court entered a judgment against the defendant for $1,060,847,117. The court allowed the plaintiffs to distribute the damages based on their expert witness' damages model with a pro rata reduction to reflect the jury's award of a lesser damages amount than the expert proposed.

The defendant challenged the district court's certification of the plaintiffs as a class under Fed. R. Civ. P. 23(b)(3), arguing that individualized questions relating to the damages suffered by different plaintiffs predominated over questions common to all members of the plaintiffs class. The defendant further argued that certification of the class in this instance was contrary to the Supreme Court's holdings in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).

The court addressed the defendant's challenge to the class certification by first evaluating, using a de novo standard of review, whether the district court applied the proper legal standard by requiring "that the questions of law or fact common to class members predominate over any questions affecting only individual members." Holding that the correct legal standard was applied, the court reviewed the district court's decision to certify and refusal to decertify the class for abuse of discretion.

The court summarized Wal-Mart, in which the plaintiffs were female employees who had alleged discrimination by their supervisors in decisions of pay and promotions. The district court in Wal-Mart certified a class of female employees, and the Ninth Circuit Court of Appeals upheld that certification. The Supreme Court disagreed with the Ninth Circuit and reversed. It reasoned that the evidence did not show a company-wide policy of discrimination or "common mode of exercising discretion that pervade[d] the entire company". Emphasizing the need for a class action to be capable of yielding common answers that would drive the resolution of litigation, the Supreme Court decertified the class because there was no common answer to the cause of the individual plaintiffs' pay and promotion disparities. The Court further held that the district court's method of deciding class-wide liability based on a sampling of class members, or "trial by formula", violated Wal-Mart's right to individual proceedings to present and litigate statutory defenses to individual claims.

The defendant here argued that it was entitled to individual proceedings to show that some plaintiffs could have escaped or mitigated their damages through price negotiations. The 10th Circuit disagreed because the defendant failed to show that the district court abused its discretion in finding that there were class-wide issues that predominated over those individualized issues. The district court held that the existence of a conspiracy and impact raised common questions capable of class-wide proof. Citing other courts that have addressed the matter, the court held that price-fixing affects all market participants and results in an inference of class-wide impact even if the prices are individually negotiated, especially when the conspiracy artificially inflates the baseline for price negotiations. The court noted that courts often tend to treat proof of a conspiracy as a common question that predominates over other issues. The district court did not abuse its discretion when it weighed the evidence and found that these common issues predominated over the individualized damages issues.

The defendant also argued that the district court ran afoul of Wal-Mart by allowing the use of extrapolations provided by Dr. McClave to prove class-wide impact and damages. It compared these extrapolations to the "trial by formula" prohibited by Wal-Mart. The 10th Circuit disagreed, holding that liability was not established using extrapolation; extrapolation was only used to approximate damages, while liability was established through common evidence. Dow also argued that class certification was inappropriate because Dr. McClave's models for extrapolation were defective, but Dow did not attempt to explain how this may have caused individualized questions to predominate over common questions or how it related to an abuse of discretion by the district court. The court declined to consider the issues because Dow failed to raise them at the district court level.

The court similarly declined to adopt the defendant's Comcast arguments. Comcast involved a class action lawsuit based on four theories of antitrust impact. The district court rejected three of the four theories as being incapable of class-wide proof. The only evidence used to support class-wide damages was the testimony of Dr. McClave, who, in that case, based his models on all four of the theories of antitrust impact. Because three of those four theories were rejected by the district court, the Supreme Court held that the models Dr. McClave used were defective and that the class did not satisfy its burden of proving damages on a class-wide basis. Without the models, the plaintiffs had no proof of class-wide damages and, as the Court reasoned, individualized questions would "inevitably overwhelm questions common to the class." Therefore, class certification could not survive.

The Tenth Circuit distinguished the present case from Comcast. It noted that Dr. McClave's benchmarks in the present case differed from those used in Comcast and were not necessarily defective. It also noted that the class certification in Comcast required proving class-wide damages, whereas class certification in the present case did not. Finally, the court noted that the individual issues that could have predominated in Comcast were not present in this case.

The defendant also challenged the admission of Dr. McClave's testimony into evidence. The 10th Circuit applied a de novo standard of review to whether the correct legal standard for admissibility was applied, citing the "relevant and reliable" standard of Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Finding that it was, the court reviewed the decisions of the district court for abuse of discretion.

The defendant argued against the reliability of Dr. McClave's multiple-regression analysis models, claiming that he engaged in "variable shopping" and "benchmark shopping" by choosing variables that would yield the supra-competitive prices he believed to exist. The court disagreed. The court referred to Bazemore v. Friday, 478 U.S. 385 (1986), as the standard for regression analysis models, which allows for admissibility as long as the models consider all of the major factors and variables.

The defendant argued that the use of toluene diisocyanate (TDI) without also including domestic demand variables violated the Bazemore standard. In his own testimony, Dr. McClave explained that he did so because domestic demand variables had no statistically significant relationship to price. The court held that allowing this was not an abuse of discretion by the district court.

The defendant also argued that Dr. McClave's use of domestic MDI and polyols variables without also using export variables constituted the omission of major variables. The defendant did not raise this objection in his Motion to Exclude Dr. McClave's testimony, however, and the court opted to apply a plain-error standard of review. Finding that there was no obvious error in Dr. McClave's choice of variables, the court declined to reverse on these grounds.

Similarly, the defendant argued that Dr. McClave engaged in "benchmark shopping" by moving the year 2004 from the "conspiracy period" to the competitive market "benchmark" period to produce more favorable results for the plaintiffs. The court held that this argument was without merit. Expert testimony must be reliable to be admitted into evidence. The court cited Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013), which held that reliability "is primarily a question of the validity of the methodology employed by an expert, not the quality of the data used in applying the methodology or conclusions produced." The district court considered the defendant's arguments but determined that they went to the reliability of Dr. McClave's underlying data and not his methodology. The 10th Circuit held that this was not an abuse of the district court's discretion and declined to reverse on these grounds.

The defendant also challenged the sufficiency of the evidence used to demonstrate its liability, arguing that the district court erred in denying its motion for judgment as a matter of law. The 10th Circuit engaged in a de novo review of that decision. In the 10th Circuit, judgment as a matter of law is inappropriate "unless the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion." (citing Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996)).

The court reviewed each of the defendant's three component arguments of this challenge. The defendant first argued that there was insufficient evidence that a price-fixing agreement was effectively implemented. It did not dispute the existence of an agreement to coordinate price increases and make them stick, nor did it dispute the existence of evidence involving coordination of those price increase announcements. Rather, it argued a lack of evidence of follow-through by the alleged conspirators to make the price increases stick. It further argued that this lack of evidence meant that the plaintiffs could not prove that there was an evidentiary connection between the parallel price-increase announcements and the increased prices plaintiffs were alleging.

The court considered this argument by first examining the evidence presented against the defendant at trial. This evidence included the testimony of insiders privy to knowledge of the conspiracy, including employees of the defendant Dow Chemical Company and executives from several of the defendant companies that settled prior to trial. It also included instances of collusive behavior, evidence of the susceptibility of the particular market to collusion, and the setting of prices at supra-competitive levels. Ultimately, the court determined that this evidence went beyond parallel announcements of price increases.

The court further held that the plaintiffs did not need to establish a causal connection between the price-increase announcements and actual price increases. Rather, both the announcements and the actual price increases were caused by the conspiratorial agreement. Upon reviewing the evidence presented to support a jury's inference of the success of those announcements, the court held that the jury could have reasonably made those inferences.

The defendant then argued that there was insufficient evidence of a conspiracy involving Lyondell, who was one of the defendants who settled prior to trial. The court found this argument to be without legal or factual merit. Establishing liability under Section 1 of the Sherman Antitrust Act, 15 U.S.C. §1, only requires that the defendant not act unilaterally. Even without Lyondell's participation in the conspiracy, there was sufficient evidence of a conspiracy between Dow and the other defendant companies to withstand Dow's motion for judgment as a matter of law. Furthermore, the evidence presented was sufficient to allow a reasonable jury to infer Lyondell's participation in the conspiracy.

The defendant also argued that the jury necessarily rejected Dr. McClave's models, which therefore left insufficient evidence of impact and damages. This was based on the jury's finding that there was no injury for the 23-month period preceding November 24th, 2000. The defendant reasoned that the jury partially rejected Dr. McClave's models and that this rejection invalidated the models in their entirety. It further reasoned that, without these models, the plaintiffs lacked sufficient evidence of impact and damages.

The defendant's argument primarily relied on the D.C. Circuit Court of Appeals' decision in In re Rail Freight Fuel Surcharge Antitrust Litigation, 725 F.3d 244, 252 (D.C. Cir. 2013). In In re Rail Freight, the expert witness' damages model yielded damages for a time period in which prices were freely set, which meant finding damages for plaintiffs who could not have possibly been injured. The defendant in that case challenged class certification through an interlocutory appeal to the D.C. Circuit, arguing that the expert's testimony and flawed damages model were inadmissible and, without them, individualized questions would predominate in trial. The D.C. Circuit Court agreed.

The 10th Circuit held that In re Rail Freight did not apply to this case. The court did not share the D.C. Circuit's concern that individualized questions might possibly predominate because the trial had already occurred. Furthermore, although the jury found no damages for a specific period of time, the defendant did not demonstrate that any plaintiff in the class could not possibly have suffered injuries. The court reasoned that the jury could have limited the conspiracy period based on the defendant's explanation of prices before November 24th, 2000 while agreeing with Dr. McClave's analysis for the conspiracy period afterwards. The court declined to disturb the jury's unequivocal findings on impact and damages.

The defendant argued that the damages award violated its rights provided by the Seventh Amendment to the United States Constitution. Because of the implication of a constitutional question, the 10th Circuit reviewed this challenge using a de novo standard of review. Defendant argued that the apportionment of damages based on a pro-rata reduction of Dr. McClave's damages model was problematic because the reason for the jury's reduction in damages was unknown, and so applying Dr. McClave's model took from the jury "the question of liability and the extent of the injury by an assessment of damages", citing Dimick v. Schiedt, 293 U.S. 474, 486 (1935). The court disagreed.

It began its analysis by noting that the defendant had no legally recognizable interest in the apportionment of an aggregate damages award, particularly because it never requested individualized findings on damages. The defendant claimed an interest because it wanted to ensure that all of the plaintiffs were bound by the judgment, but it did not identify any threat to the binding effect of that judgment. The three cases the defendant cited to support its position involved issues pertaining to jurisdiction, a decertified class, and additur. The facts were so far removed from the present case as to render them inapplicable. The court held that the defendant had not properly established a Seventh Amendment violation, and so declined to reverse on those grounds.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3215.pdf

Panel: Lucero, Murphy, Bacharach

Date of Issued Opinion: September 29, 2014

Docket Number: No. 13-3215

Decided: Affirmed the district court. Rejected the defendant's challenges to the order for class certification, the refusal to decertify the class, the admission of Dr. McClave's testimony, the sufficiency of the evidence, and the award of damages.

Counsel:

Carter G. Phillips, Sidley Austin LLP, Washington, D.C. (Joseph R. Guerra, C. Frederick Beckner III, Kathleen Moriarty Mueller, Jeffrey S. Beelaert, Sidley Austin LLP, Washington, D.C.; and Charles J. Kalil, General Counsel, the Dow Chemical Company, Duncan A. Stuart, Associate General Counsel, the Dow Chemical Company, Midland, MI, on the briefs) for Defendant-Appellant.

Paul D. Clement, Bancroft PLLC, Washington, D.C. (Zachary D. Tripp, Candice Chiu, William R. Levi, Bancroft PLLC, Washington, D.C.; Roberta D. Liebenberg, Donald L. Perelman, Gerard A. Dever, Matthew Duncan, Fine, Kaplan, & Black, RPC, Philadelphia, PA; Richard A. Koffman, Kit A. Pierson, Christopher J. Cormier, Sharon K. Robertson, Laura A. Alexander, Cohen Milstein Sellers & Toll, PLLC, Washington, D.C.; Joseph Goldberg, Freedman Boyd Hollander Goldberg Urias & Ward, P.A., Albuquerque, N.M.; Michael J. Guzman, Rebecca A. Beynon, Michael N. Nemelka, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, D.C.; and Robert W. Coykendall, Roger N. Walter, Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, KS, on the briefs) for Plaintiffs-Appellees.

Kathryn Comerford Todd, Tyler R. Green, National Chamber Litigation Center, Inc., Washington, D.C.; Jeffrey L. Kessler, George E. Mastoris, Winston & Strawn LLP, New York, NY; and Gene C. Schaerr, Robert F. Ruyak, William A. Roach, Jr., Winston & Strawn LLP, Washington, D.C., filed an Amicus Curiae brief for the Chamber of Commerce of the United States.

Jonathan D. Selbin, Jason L. Lichtman, Lief Cabraser Heimann & Bernstein, LLP, New York, NY; Jordan Elias, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA; and Ian J. McLoughlin, Rachel M. Brown, Shapiro Haber & Urmy, LLP, Boston, MA, filed an Amicus Curiae brief for the American Independent Business Alliance.

Author: Bacharach

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

Edited: 10/09/2014 at 03:22 PM by Barbara Bergman

    Posted By: Barbara Bergman @ 10/09/2014 03:16 PM     10th Circuit     Comments (0)  

  United States v. Stephens - Fourth Circuit
Headline: The Exception Slowly Becomes the Rule: Expanding the "Good Faith" Exception

Area of Law: Evidence, Fourth Amendment, Criminal Procedure

Issue Presented: Whether the district court correctly declined to exclude evidence where a warrantless GPS search (pre-Jones) was conducted in "good faith."

Brief Summary: While investigating Henry Stephens, an officer attached a GPS tracker to Stephens' car without a warrant. Stephens was indicted using evidence found with the help of the GPS tracker. Applying the Supreme Court's ruling in United States v. Jones, the district court found that attachment of the tracker to Stephens' car violated the Fourth Amendment. However the district court refused to exclude the evidence because the police officer relied in good faith on the state of the law prior to Jones. Stephens later entered a guilty plea, reserving the right to appeal the district court's suppression order.

On appeal, the United States Court of Appeals for the Fourth Circuit upheld the district court's ruling that the good faith exception to the exclusionary rule should apply. The court held that the Supreme Court's beeper cases and other circuits' rulings on GPS tracking devices constituted binding precedent, and therefore the officer acted in good faith when relying on those decisions pre-Jones. In reaching this result, the court expanded the "good faith exception" that had been applied in United States v. Davis.

In the dissent, Judge Thacker argued that under the proper application of Davis, the good faith exception applies only "when binding appellate precedent specifically authorizes a particular police practice."

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

Panel: Judges Shedd, Thacker and Hamilton.

Argument Date: 10/30/2013

Date of Issued Opinion: 08/19/2014

Docket Number: No. 12-4625

Decided: Affirmed

Case Alert Author: Rebecca Berger

Counsel: ARGUED: Christopher Ford Cowan, LAW OFFICE OF CHRIS F. COWAN, Columbus, Ohio, for Appellant. Albert David Copperthite, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Shedd

Case Alert Supervisor:
Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 10/09/2014 02:04 PM     4th Circuit     Comments (0)  

  Chen v. Holder - Fourth Circuit
Headline: Fourth Circuit Remands After Determining the Immigration Court Cannot Hand-Pick Credibility Findings

Area of Law: Immigration Law

Issue Presented: Whether the Board of Immigration Appeals appropriately affirmed the Immigration Judge's denial of the petitioner's asylum petition on adverse credibility grounds.

Brief Summary: Chinese National Pin Zuang Chen sought asylum in the United States on the ground of religious persecution. An Immigration Judge (IJ) denied Chen's asylum application. In particular, the IJ found that Chen was not credible because several facts regarding his alleged persecution were implausible. Chen appealed to the Board of Immigration Appeals (BIA). The BIA dismissed the appeal on the grounds that the IJ's decision was not clearly erroneous. Chen then appealed to the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit concluded that the IJ's decision was speculative and unsupported by substantial evidence. The court therefore vacated the BIA's order and remanded for further proceedings.

To read the full opinion, please click here.

Panel: Judges King, Thacker, and Hamilton

Date of Issued Opinion: 09/10/2014

Docket Number: No. 14-1080

Decided: Vacated and remanded

Case Alert Author: Katherine C. Parris

Counsel: Troy Nader Moslemi, MOSLEMI & ASSOCIATES, New York, New York, for Petitioner. Stuart F. Delery, Assistant Attorney General, Linda S. Wernery, Assistant Director, Susan Bennett Green, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/09/2014 10:36 AM     4th Circuit     Comments (0)  

October 8, 2014
  Danser v. Stansberry - Fourth Circuit
Headline: Sex Offender's § 1983 Claim Denied

Areas of Law: Civil Litigation; 42 U.S.C. § 1983

Issue Presented: Whether the district court erred in holding that certain prison officials were not entitled to qualified immunity for injuries a federal prisoner suffered at the hands of another inmate.

Brief Summary: David K. Danser, a federal prisoner serving a 370-month sentence for various sexual offenses against children, filed a Bivens complaint against a number of prison officials after being attacked by another inmate during outdoor recreational time.

Prior to the attack, Danser was moved into a protective housing unit following a verbal altercation with another inmate and prison gang member. On the day of the attack, Danser was placed in an outdoor 10' x10' cage with three different inmates for his allotted recreational time. One of these inmates, a member of the violent prison gang La Nuestra Familia, brutally attacked Danser after the official on duty broke protocol and left his post. Danser suffered a ruptured spleen, a punctured lung, and broken ribs. He filed a complaint against the officer on duty and a number of the officer's supervisors under 42 U.S.C. § 1983. Danser alleged that the officials violated his constitutional rights by acting with deliberate indifference towards his safety.

The prison officials filed a motion for summary judgment asserting qualified immunity, which the district court denied. On appeal, the officials argued that they did not violate Danser's constitutional rights because they did not have the culpable state of mind necessary to establish a deliberate indifference claim. The U.S. Court of Appeals for the Fourth Circuit agreed with the officials, holding that Danser had not established anything more than the officials' mere negligence, a degree of culpability insufficient to satisfy 42 U.S.C. § 1983's high standard. Emphasizing the undisputed fact that Danser and his assailant had no separation orders between themselves, the Fourth Circuit held that the officials were entitled to qualified immunity, and remanded the case with instructions that the district court grant judgment for the defendants.

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

Panel: Judges Wilkinson, Keenan, and Diaz

Argument Date: 05/13/2014

Date of Issued Opinion: 09/12/2014

Docket Number: No. 13-1828

Decided: Vacated and remanded with instructions by published opinion

Case Alert Author: Emily Bolyard

Counsel: ARGUED: Michael Gordon James, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellants. Elizabeth Guild Simpson, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, R.A. Renfer, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellants.

Author of Opinion: Judge Keenan

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/08/2014 11:03 AM     4th Circuit     Comments (0)  

  United States v. Jameal Gould - Fourth Circuit
Headline: Pro Se Inmate Convinces Fourth Circuit to Re-examine Sentence

Area of Law: Sentencing

Issues Presented: Whether there was sufficient evidence to support the district court's finding that there was an intervening arrest that affected the computation of the criminal history score.

Brief Summary: Jameal Gould contended that his criminal history score was incorrectly computed. Specifically, Gould maintained that his two Maryland convictions should not have been counted separately because there was no intervening arrest between the commission of the two offenses. The Fourth Circuit found the sentencing record to be inconclusive on this issue and remanded the case to the district court to resolve this factual discrepancy.

To read the full text of the opinion, please click here

Panel: Circuit Judges Duncan, Thacker, and Davis, Senior Circuit Judge

Argument Date: 08/26/14

Date of Issued Opinion: 09/04/14

Docket Number: No. 13-7339

Decided: Vacated and Remanded

Case Alert Author: Steven Roy

Counsel: Jameal Gould, Appellant Pro Se. Christine Marie Celeste, OFFICE OF THE UNITED STATES ATTORNEY, Peter Jeffrey Martinez, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Author of Opinion: Per curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/08/2014 09:28 AM     4th Circuit     Comments (0)  

October 6, 2014
  EQT Production Co. v. Adair - Fourth Circuit
Headline: Unpaid Gas Owners Need More Than Just Sympathy

Areas of Law: Class Action Lawsuits; Property

Issue Presented: Whether the district court abused its discretion when it certified the claims of five classes under Fed. R. Civ. P. 23.

Brief Summary: Owners of subsurface gas estates brought five lawsuits against two coalbed methane producers. The suits alleged the producers had not paid royalties owed to plaintiffs. After a federal district court granted the plaintiffs' motions for class certification, the United States Court of Appeals for the Fourth Circuit granted review. Holding that the district court abused its discretion in certifying the classes by materially misapplying the requirements of Rule 23 in multiple ways, the Fourth Circuit vacated the district court's grant of the motions and remanded the case for reconsideration.

Extended Summary: Between June 2010 and April 2011, lead plaintiffs of five separate cases filed various federal complaints against two Virginia coalbed methane gas ("CBM") producers, EQT Production Co. ("EQT") and CNX Gas Co. ("CNX"). Four of the lawsuits alleged that EQT and CNX completely deprived plaintiffs of royalty payments from the production of CBM, and all five suits alleged that EQT and CNX had underpaid royalties.

Producers have captured CBM since the 1970s for use as a commercial energy source. However, issues have persisted regarding the ownership rights to CBM as different individuals often own the subsurface gas and coal mining rights. In 1990, Virginia enacted the Virginia Gas and Oil Act to enable CBM production on adjoining tracts of land and to overcome continuing ownership disputes. Under the Act, producers and alleged gas estate owners enter into lease agreements to facilitate the distribution of royalty payments.

EQT and CNX together operated between 750 and 900 CBM wells in Virginia. The plaintiffs - gas estate owners identified in the defendants' ownership schedules as holding conflicting interests in CBM - sought declaratory judgment that (1) the ownership conflicts that EQT and CNX had identified were illusory; (2) as gas estate owners, they were entitled to the withheld CBM royalties; and (3) any royalties held in escrow or suspended by defendants as a result of the illusory ownership conflicts must be paid. In addition to declaratory judgment relief, plaintiffs sought a complete accounting of the royalties, alleged various tort, property, and contract theories of recovery, and sought punitive damages.

Plaintiffs moved for class certification, and the district judge certified a total of five classes. EQT and CNX appealed the five certification orders to the U.S. Court of Appeals for the Fourth Circuit.

In a consolidated action, the Fourth Circuit first held that the district court failed to rigorously analyze the administrative burden of identifying the classes' members, and improperly lowered those plaintiffs' burden of proof in establishing commonality under Rule 23(a). Next, the Fourth Circuit held that the district court abused its discretion in certifying the class claims alleging EQT's and CNX's underpayment of royalties. Concluding that sympathy alone towards the numerous CBM holders who had not received a penny in royalties or had been underpaid could not justify certification under Rule 23, the Fourth Circuit vacated the district court's grant of plaintiffs' motions for class certification, and remanded the case for reconsideration of the motions consistent with its opinion.

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

Panel: Judges Wilkinson, Keenan, and Diaz

Argument Date: 05/13/2014

Date of Issued Opinion: 08/19/2014

Docket Number: No. 13-414

Decided: Vacated and remanded by published opinion

Case Alert Author: Emily Bolyard

Counsel: ARGUED: Jonathan Todd Blank, MCGUIREWOODS LLP, Charlottesville, Virginia; Michael Willis Smith, CHRISTIAN & BARTON, Richmond, Virginia, for Appellants. Elizabeth Joan Cabraser, LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP, San Francisco, California, for Appellees. ON BRIEF: Stephen M. Hodges, Wade W. Massie, Mark E. Frye, PENN, STUART & ESKRIDGE, Abingdon, Virginia; R. Braxton Hill, IV, CHRISTIAN & BARTON, Richmond, Virginia, for Appellant EQT Production Company. Lisa M. Lorish, Tennille J. Checkovich, John Tracy Walker, IV, MCGUIREWOODS LLP, Charlottesville, Virginia; James R. Creekmore, Blair Nivia Wood, CREEKMORE LAW FIRM PC, Blacksburg, Virginia, for Appellant CNX Gas Company, LLC. Blair M. Gardner, Lee Adair Floyd, JACKSON KELLY PLLC, Charleston, West Virginia; Eric D. Whitesell, GILLESPIE, HART, ALTIZER & WHITESELL, Tazewell, Virginia, for Appellants Buckhorn Coal Company LLLP, Commonwealth Coal Corporation, and Harrison-Wyatt LLC. David S. Stellings, Daniel E. Seltz, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, New York, New York; Jackson S. White, Jr., THE WHITE LAW OFFICE, Abingdon, Virginia, for Appellees.

Author of Opinion: Judge Diaz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/06/2014 01:15 PM     4th Circuit     Comments (0)  

  Wood v. Crane Company - Fourth Circuit
Headline: Asbestos Defendant Headed Back to State Court - Failed to Raise Timely Basis for Federal Jurisdiction

Area of Law: Civil Procedure

Issue Presented: Whether the district court erred when it allowed the plaintiff to amend his complaint to abandon federal claims related to the defendant's defense and remanded the case to state court.

Brief Summary: Former Coast Guard electrician James Joyner was diagnosed with mesothelioma. After his death, Joyner's estate brought state law claims against Crane Company, and other defendants, for allegedly supplying the U.S. Government with asbestos-filled gaskets and valves. Crane removed the case to federal court based on federal officer jurisdiction. Joyner then amended his complaint. He abandoned the valve claim; and requested a remand to state court for trial on the remaining gasket claim. The district court remanded the case. Crane appealed, asserting that all the claims should have remained in federal court. The United States Court of Appeals for the Fourth Circuit affirmed. The Fourth Circuit concluded that Crane failed to timely assert a new basis for federal jurisdiction over the gasket claim within the 30-day time period allotted by statute.

To read the full opinion, please click here

Panel: Judges Diaz, Wynn, and Duncan.

Argument Date: 03/19/2014

Date of Issued Opinion: 08/15/2014

Docket Number: No. 13-1868

Decided: Affirmed

Case Alert Author: Katherine C. Parris

Counsel: Michael James Ross, K&L GATES LLP, Pittsburgh, Pennsylvania, for Appellant. Jacqueline Gagne Badders, RUCKDESCHEL LAW FIRM, LLC, Ellicott City, Maryland, for Appellee. ON BRIEF: Nicholas P. Vari, Syed D. Ali, K&L GATES LLP, Pittsburgh, Pennsylvania; Neil J. MacDonald, MACDONALD LAW GROUP, LLC, Beltsville, Maryland, for Appellant. Jonathan Ruckdeschel, Z. Stephen Horvat, RUCKDESCHEL LAW FIRM, LLC, Ellicott City, Maryland, for Appellee.

Author of Opinion: Judge Diaz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/06/2014 12:42 PM     4th Circuit     Comments (0)  

  Russell v. Absolute Collection Services, Inc. - Fourth Circuit
Headline: You Don't Need to Dispute Debt to File Suit Against "Dunning" Debt Collectors

Area of Law: Consumer Protection

Issue Presented: Whether a debtor is required to dispute her debt prior to filing suit against a debt collector under the Fair Debt Collection Practices Act ("FDCPA").

Brief Summary: "Dunning" is a debt collection practice where debt collectors issue several notices to a debtor requesting payment for overdue bills. Diane Russell was a target of a "dunning" campaign waged by Absolute Collection Services, Inc., for medical services rendered to her husband. Russell notified Absolute Collection that she had already paid the debt directly to the service provider. Despite this notification, Absolute Collection continued to "dun" Russell with more collection calls and letters requesting payment. Absolute Collection also threatened to report Russell to national credit bureaus. The trial court ruled in favor of Russell, and Absolute Collection appealed. Absolute Collection argued that since Russell had not followed the debt verification procedures outlined in the FDCPA, Absolute Collection was permitted to assume the debt was valid and continue its collection attempts.

The U.S. Court of Appeals for the Fourth Circuit held that a debtor can bring suit against a debt collector even if he or she did not follow the debt verification procedures because the language of the Act clearly indicates that disputing a debt is optional and requiring a consumer to undertake such an action would "undermine the FDCPA's protection of unsophisticated debtors, who would have no reason to suspect that they would be prevented from filing suit."

To read the full opinion, please click here

Panel: Judges Diaz, Motz, and Floyd.

Argument Date: 04/11/2014

Date of Issued Opinion: 08/15/2014

Docket Number: No. 12-2357

Decided: Affirmed

Case Alert Author: Jamie Lee

Counsel: Sean T. Partrick, YATES, MCLAMB & WEYHER, LLP, Raleigh, North Carolina, for Appellant. Deepak Gupta, GUPTA BECK PLLC, Washington, D.C., for Appellee. ON BRIEF: Allison J. Becker, Jennifer D. Maldonado, YATES, MCLAMB & WEYHER, LLP, Raleigh, North Carolina, for Appellant. Joanne Faulkner, New Haven, Connecticut; Suzanne R. Begnoche, Chapel Hill, North Carolina, for Appellee.

Author of Opinion: Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 10/06/2014 at 12:43 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/06/2014 12:26 PM     4th Circuit     Comments (0)  

October 2, 2014
  United States v. Trent- Tenth Circuit
Headline: Tenth Circuit Rules Modified Categorical Approach Applies to Oklahoma Conspiracy Conviction

Areas of Law: Criminal Law, Statutory Construction

Issue Presented:

1. Should the modified categorical approach apply to conspiracy convictions to determine whether a prior felony is a "serious drug offense" under the Armed Career Criminal Act (ACCA)?

Brief Summary:

Defendant was convicted of being a felon in possession of a firearm. He raised several issues on appeal, but the court focused primarily on the issue of whether his prior conspiracy conviction is considered a "serious drug offense" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The court held that the modified categorical approach should be applied to his prior conviction under the general Oklahoma conspiracy statute, and that as a result, the conviction qualified as a serious drug offense. The court affirmed his conviction. Judge Seymour concurred in the judgment.

Extended Summary:

Defendant was arrested after being pulled over in a car with two other individuals after officers found a handgun wedged in the back seat, behind an armrest. Defendant was arrested because he had a prior felony conviction. At trial, the main issue was whether the gun was the Defendant's. The jury convicted the Defendant. At sentencing, Defendant argued that the mandatory minimum sentence under the Armed Career Criminal Act (ACCA) did not apply, because his conviction under the Oklahoma general conspiracy statute did not qualify as the third conviction that would give rise to the ACCA enhancement. The district court disagreed and sentenced Defendant to 196 months in prison with five years of supervised release.

The majority first addressed Defendant's challenges for sufficiency of the evidence, improper admission of his prior conviction for being a felon in possession of a firearm, improper jury instructions, and that his sentence was substantively unreasonable. The majority disagreed with the Defendant on each of these arguments, quickly dismissing them before turning to the ACCA issue.

The majority first explained that the ACCA increased the penalty for being a felon in possession of a firearm if the defendant has three prior convictions for a "violent felony" or a "serious drug offense." The Defendant conceded that he had two prior convictions for serious drug offenses under the ACCA but argued that his 2007 conviction under the Oklahoma general conspiracy statute could not be characterized as a serious drug offense. The majority conducted a de novo review on this issue.

The majority noted that the categorical approach is generally used to determine whether a conviction qualifies as a violent felony or a serious drug offense under the ACCA. Under the categorical approach, the court looks only at the elements of the statute under which the Defendant was convicted. In order for the conviction to fall under the ACCA, the court must find that all violations of the statute would qualify, regardless of the actual conduct of the Defendant. The majority stated that under the categorical approach, the defendant's conspiracy conviction would not be considered a serious drug offense, because the statute could be violated in a number of ways that do not involve drugs.

The majority then addressed the applicability of the modified categorical approach, which is to be used when a statute is divisible - meaning that one or more of the elements are set out in the alternative. When using the modified categorical approach, a court may turn to certain documents, including charging documents, plea agreements, plea colloquy transcripts, findings of fact and conclusions of law from bench trials, jury instructions, and verdict forms. In the Tenth Circuit, admissions from defense counsel may also be considered.

The majority then summarized Descamps v. United States, 133 S. Ct. 2276 (2013), in which the defendant was convicted of being a felon in possession of a firearm and had a previous conviction for burglary under a California Statute. The government argued that the burglary conviction was a violent felony, but the defendant argued that the California offense of burglary was broader than generic burglary. Thus, the offense did not qualify as a violent felony under the ACCA because some crimes punishable under the California statute did not fit the generic definition of burglary.

On appeal, the Ninth Circuit in Descamps relied on its en banc decision in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011), and held that the modified categorical approach applied to "missing element" crimes, which are crimes that are "missing an element of the generic crime." In Aguila-Montes, the Ninth Circuit stated that divisible statutes are subject to the modified categorical approach, and then stated why it believed that "missing element" statutes should also be subject to the modified categorical approach, because they are not "meaningfully different" from divisible statutes. A "missing element" statute, according to Aguila-Montes, was merely a list of hypothetical alternatives as opposed to an explicit list. Using Aguila-Montes, the Ninth Circuit held that the inquiry is whether "the factfinder [was] actually required to find the facts satisfying the elements of the generic offense" (emphasis removed). Using this test, the Ninth Circuit found that the defendant had been convicted of generic burglary.

The Supreme Court in Descamps disagreed with the Ninth Circuit and reversed. The Supreme Court held that the modified categorical approach is inapplicable when the statute contains a single, indivisible set of elements. The modified categorical approach applies only when the multiple, alternative elements are present, effectively creating several different crimes within the same statute.

The Supreme Court specified three reasons for adopting an elements-based focus. First, the focus on convictions indicated that Congress intended for the sentencing court to look at the fact there are prior convictions, without looking at the facts underlying those prior convictions. Second, the categorical approach steers clear of any Sixth Amendment issues that could arise from sentencing a defendant without a jury making a finding of fact beyond a reasonable doubt. Third, it is unfair for a court to look at the facts underlying the prior convictions, particularly when litigating collateral facts were irrelevant to guilt under the statute.

The majority then held that a statute which cross-references other statutes is divisible. It noted that in United States v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012), the court had previously held that a statute that cross-references another statute is divisible. Further, the Ninth Circuit in Coronodo v. Holder, 759 F.3d 977 (9th Cir. 2014), found that a California drug statute was divisible because it identified a number od controlled substances by reference to other California drug schedules and statutes. Additionally, the Sixth Circuit, relying on Descamps, held that the Ohio incitement-to-violence statute was divisible because it turned on the violence underlying the incitement. The majority noted that before Descamps was decided, the Third Circuit found that the modified categorical approach applied to the Delaware statute prohibiting body armor because it incorporates by reference "the disjunctive list of all felonies." The Seventh Circuit also decided, pre-Descamps, that an Illinois armed violence statute was divisible.

The majority then addressed pre-Descamps Supreme Court precedent. In James v. United States, 550 U.S. 192 (2007), the Supreme Court considered whether the defendant's previous conviction under a Florida statute for attempted burglary qualified as a violent felony under the ACCA. Although the attempt statute was not divisible on its face, the Supreme Court looked at the burglary statute, because burglary was the specific offense stated in the charging document. Thus, the Court held that the offense was a violent felony. The Court did not mention, however, that the attempt statute was divisible.

Next, the majority analyzed the Oklahoma general conspiracy statute and held that it was divisible because it cross-references all state criminal offenses. The majority stated that the Oklahoma legislature could have elected to write out a list of all Oklahoma crimes within the conspiracy statute, but that doing so would have been redundant. The majority reasoned that although this statute made the list lengthy, it did not make the list hypothetical.

After finding that the statute is divisible, the majority looked at the defendant's conviction in order to determine if his conviction fell within the purview of the ACCA. The amended information in the plea agreement stated that he was pleading guilty to "conspiracy to manufacture a controlled dangerous substance", and specifically mentioned methamphetamines. Further, at his plea colloquy, the defendant stated "I conspired to manufacture methamphetamines."

The majority stated that the conspiracy to manufacture methamphetamines is a serious drug offense under the ACCA. The ACCA offense includes the manufacturing of a controlled substance, and the majority agreed with other circuits that have held that manufacturing also includes attempts and conspiracy.

The majority then had to determine if the statutes cross-referenced in the conspiracy statute were alternative elements. If the specific object of the offense is not an element of the offense, then the modified categorical approach would not apply. The majority stated that simply because alternatives are listed does not mean that they are elements. Several alternatives may be presented to a jury without all jurors having to decide which alternative act was committed. In such a case, the alternative is not an element.

To demonstrate this principle, the majority discussed Schad v. Arizona, 501 U.S. 624 (1991), where the defendant was convicted of first-degree murder and sentenced to death. In Schad, the defendant argued that the jury instructions should have required the jury to agree unanimously on a single theory of first-degree murder. The Supreme Court, however, stated that the Arizona statute did treat the alternative theories as alternative elements. Thus, defendant's conviction was affirmed because the jury simply had to agree unanimously that first-degree murder had been committed.

The majority explained that Descamps did not adopt this view of elements, because that would mean that the court could never use the modified categorical approach without determining if the alternatives are means or elements. The court pointed to Justice Alito's dissent in Descamps to show that it would be difficult to engage in this analysis because the amount of case law regarding means versus elements is staggering. The majority pointed again to Coronado, where the jury did not need to agree on which controlled substance the defendant possessed, but the modified categorical approach was still used. It also cited to California case law demonstrating that the actual drug possessed is not an element of the crime. Regardless, the majority agreed with the Ninth Circuit's holding and stated that the Ninth Circuit approach satisfies the three reasons that the Supreme Court applied the categorical approach in Descamps.

The majority noted that the alternative statutory phrases are not always elements. Further, the charging document will typically reflect the relevant element, which can easily be examined in order to determine whether the defendant committed an ACCA crime.

The majority then conceded that it may be incorrect. Thus, it determined whether the general conspiracy statute is divisible even if it misunderstood the holding of Descamps. The majority held that the jury must unanimously agree on the crime that the conspirators agreed to commit. It noted that some jurisdictions may have determined that the jury does not need to determine the target crime unanimously. It then reviewed Oklahoma state law and Oklahoma Uniform Jury Instructions to make the determination that the jury likely would have to agree on the target offense. The majority agreed with the Fourth Circuit that the court should look to how state courts instruct juries n order to determine the elements of an offense. The majority also found support for its position in Richardson v. United States, 526 U.S. 813 (1999), where the court held that for conviction under the federal continuing-criminal-enterprise statute, the continuing series of violations of a federal drug law was an element of the statute, as opposed to alternative means.

The majority noted that Supreme Court interpretation of federal statutes is not binding, but that it is helpful. Further, it noted that allowing an Oklahoma jury to convict someone without deciding what the object of the conspiracy was, might result in unfairness. The majority concluded that even under the traditional use of the word elements allows for the application of the modified categorical approach.

Defendant argued that the modified categorical approach should not be applied because the parties treated the charge as lying outside the purview of the drug statutes. The state could have charged Defendant under the conspiracy statutes related to drug offenses. The majority, however, stated that regardless, the offense he pleaded guilty to satisfied the requirement of the ACCA.

Judge Seymour concurred in the judgment, noting that he did not join Section II(F)(4) of the opinion, in which the majority explains the meaning of the term "element."

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/12/12-6283.pdf

Panel: Hartz, Seymour, Tymkovich

Date of Issued Opinion: September 25,2014

Docket Number: No. 12-6283

Decided: Defendant's conviction and sentence were affirmed.

Counsel:

Julia C. Summers, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Mark R. Stoneman, Special Assistant United States Attorney, (Sanford C. Coats, United States Attorney, and Robert D. Gifford, II, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 10/02/2014 08:33 PM     10th Circuit     Comments (0)  

  USA v. Harry Katzin et al. - Third Circuit
Headline: Third Circuit holds the good faith exception to the exclusionary rule applies where the FBI used GPS trackers without a warrant before the Supreme Court held that such conduct was a "search" under Fourth Amendment law.

Area of Law: Criminal Procedure - Exclusionary Rule

Issues Presented: Whether the good faith exception to the exclusionary rule applies where FBI agents used GPS tracker to obtain evidence without a warrant and the Supreme Court held that such conduct was a Fourth Amendment "search" over a year later?

Brief Summary: The Third Circuit, en banc, reversed a ruling excluding the use of GPS evidence that led to the arrest and indictment of several people charged with pharmacy burglaries in the greater Philadelphia area. When the FBI agents placed the GPS on the suspect's vehicle, there was no explicit precedent that authorized use of a GPS without a warrant but they did not obtain one. The GPS provided the only evidence of the van's proximity to the pharmacy and, without it, the government's case would fail.

Approximately a year after the warrantless use of the GPS, the Supreme Court decided, in United States v. Jones, 132 S. Ct. 945 (2012), that the use of a GPS to track a suspect's vehicle constitutes a "search" under the Fourth Amendment. The question for the Third Circuit was whether the good faith exception to the exclusionary rule applied to the agents' conduct. The Third Circuit held that the good faith exception did apply because the agents reasonably believed that they did not need a warrant and a well-trained officer would not have known otherwise.

The court reversed the district court, holding that the evidence gathered against the defendants from the GPS should not be suppressed.

Extended Summary: In 2010, the FBI was investigating the burglarizing of several Rite Aid pharmacies in the Philadelphia area. In connection with the investigation, the FBI magnetically attached a battery-operated GPS to the undercarriage of a suspect's vehicle and tracked the vehicle's movement for two days. The vehicle was on public roads for the entire time of surveillance. Information gathered from the GPS led to an arrest and indictment of the suspect and several other people. When the FBI agents placed the GPS on the suspect's vehicle, they were informed by the Assistant United States Attorney that they were not legally required to obtain a warrant. The GPS provided the only evidence of the van's proximity to the Rite Aid and without it the government's case against would fail.
Approximately a year after the warrantless use of GPS, the Supreme Court decided United States v. Jones, 132 S. Ct. 945 (2012). In Jones, the Court held that the use of a GPS to track a suspect's vehicle constitutes a "search" under the Fourth Amendment.

The Third Circuit found that the exclusionary rule should be a last resort when it must be used to deter governmental violations of the Fourth Amendment. Additionally, the court found that it must consider the "substantial social costs" of excluding reliable evidence. With this in mind, it found that the question was whether a reasonably well trained officer would have known that the search was illegal in light of all the circumstances. The court concluded that, at the time of the GPS use, there was binding appellate precedent that was sufficiently analogous to the GPS issue upon which the FBI agents could reasonably have relied. Moreover, the Third Circuit held that the general good faith test applied to the agents because they acted with a good faith belief that the lawfulness of their conduct was objectively reasonable.

The Third Circuit found that all of these circumstances met the good faith exception to the exclusionary rule because "[t]he constellation of circumstances that appeared to authorize their conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a near-unanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA pursuant to a DOJ-wide policy." The Third Circuit found that there would be no deterrence if the evidence was suppressed because of the overwhelming support for the FBI agents' belief that their conduct did not require a warrant.

Judge Greenaway, Jr. dissented and was joined by four other judges. The dissent would have held that the defendants' constitutional rights were violated and no good faith exception should override the exclusionary rule. Finding no neutral authorization for the FBI agents' actions, the dissent asserts that this ruling allows the exclusionary rule to be eroded too far. The dissent emphasized that no then-binding precedent explicitly authorized the warrantless use of the GPS.

Judge Smith also dissented and was joined by four judges. Judge Smith joined Judge Greenaway's dissent and added that the majority's view would allow law enforcement to rely not only on holdings but also on rationales of precedent, leaving the good faith exception with no limiting principle.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/122548p1.pdf

Panel (if known): En Banc

Argument Date: March 19, 2013; Rehearing En Banc Ordered December 12, 2013; Argued En Banc May 28, 2014

Date of Issued Opinion: October 1, 2014

Docket Number: No. 12-2548

Decided: Reversed and Remanded

Case Alert Author: Antoinette Snodgrass

Counsel: Robert A. Zauzmer, Esq., Emily McKillip, Esq., Zane D. Memeger, Esq., and Thomas M. Zaleski, Esq. for the Appellant United States of America; Catherine N. Crump, Esq. for the American Civil Liberties Union; Thomas A. Dreyer, Esq. for the Appellee Harry Katzin; William A. DeStefano, Esq. for Appellee Michael Katzin; Rocco C. Cipparone, Jr., Esq. for Appellee Mark Louis Katzin, Sr.; Brett G. Sweitzer, Esq. for Amicus Appellee Federal Public & Community Defender Organization of the Third Circuit; Benjamin E. Wizner, Esq. for Amicus Appellee American Civil Liberties Union; Sara J. Rose, Esq., Witold J. Walczak, Esq. for Amicus Appellee American Civil Liberties Union Foundation of Pennsylvania; Hanni M. Fakhoury, Esq., Marcia Hoffman, Esq. for Amicus Appellee Electronic Frontier Foundation; Peter Goldberger, Esq. for Appellee National Associate of Criminal Defense Lawyers

Author of Opinion: Judge Van Antwerpen

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/02/2014 02:46 PM     3rd Circuit     Comments (0)  

  Urgen v. Holder - Second Circuit
Headline: Second Circuit Holds Asylum Applicant May Prove Nationality through Credibility Testimony.

Area of Law: Immigration

Issue(s) Presented: Whether an applicant for asylum can prove nationality through credibility testimony alone or must provide documentary evidence of nationality.

Brief Summary: Petitioner Urgen applied for asylum and relief under the Convention Against Torture Act, asserting that he is a stateless Tibetan born in Nepal. Finding that Urgen failed to credibly establish his nationality as a stateless Tibetan born in Nepal, an Immigration Judge ("IJ") denied asylum and ordered Urgen removed to Nepal. The Board of Immigration Appeals ("BIA") affirmed, finding that Urgen's documentary evidence failed to establish his Tibetan nationality, necessary for determining his eligibility for asylum. Neither the IJ nor the BIA made a finding as to Urgen's nationality or citizenship. The Second Circuit vacated the BIA's decision, holding that the BIA erroneously required Urgen to establish his nationality through documentary evidence. The Second Circuit remanded the matter to the BIA, instructing the agency to make an explicit determination of Urgen's country of nationality and citizenship, to determine whether he should be removed and, if so, to what country.

The full text of the opinion may be found at: ">http://www.ca2.uscourt.../de.....9/1/hilite/


Extended Summary: Petitioner Urgen applied for asylum in the United States, withholding of removal, and relief under the Convention Against Torture, asserting that he is a stateless Tibetan born in Nepal. His application for asylum asserted that Urgen was born in Nepal to Tibetan parents who fled to Nepal in the 1970s to escape persecution in China, and that neither Urgen nor his parents obtained citizenship in Nepal. The application stated that, years later, having joined the Tibetan Freedom Movement Group and paid contributions to the Tibetan government in exile, Urgen was severely beaten by Nepalese Maoists, was forced to relocate his family, and was arrested by Nepalese police for wearing anti-Chinese clothing in Nepal. The application further asserted that upon learning that Urgen did not have legal status, the police threatened to deport him to China and Urgen fled to the United States using, what he claimed was a fraudulent Nepalese passport and a United States worker's visa obtained for him by his father.

Urgen's asylum application, supported by the passport, visa, a Tibetan identity certificate, various school records, and a letter from his parents, was referred to the Immigration Court. He was placed in removal proceedings through service of a Notice to Appear that asserted that he was a native and citizen of an unknown country and was removable under the Immigration and Nationality Act ("INA") as an alien who entered the United States without a valid immigrant visa. The Immigration Judge ("IJ") ordered Urgen removed to Nepal, finding that Urgen had failed to establish that he is a stateless Tibetan born in Nepal. In so ruling, the IJ noted that aspects of his account were implausible and noted inconsistencies in Urgen's testimony about his name as compared to the name listed on his school papers. She further found that his documentary evidence did not support his identity as a stateless Tibetan, because the Tibetan certificate and letters were inadequate to establish nationality, and the passport, which could not be wholly verified as valid or fraudulent, was either valid, making him a Nepalese national or, if fraudulent, inconclusive as to his nationality.

Urgen's subsequent appeal to the Board of Immigration Appeals ("BIA") was dismissed. The BIA found that Urgen had failed to meet the threshold burden of establishing his identity and nationality, needed to obtain a determination of asylum eligibility. The BIA concluded that Urgen's documentary evidence "at best ... created a question about his name, nationality, and citizenship."

The Second Circuit agreed with the BIA that "'nationality, or lack of nationality, is a threshold question in determining eligibility for asylum, but held that an applicant can meet this threshold on credibility testimony alone. The Court stated that Urgen's country of nationality and originality was fundamental to analyzing whether he had a "well-founded fear of prosecution" and to determining where he could be removed. The Second Circuit therefore remanded the matter, instructing the BIA to review the IJ's credibility finding and to make an explicit determination with respect to Urgen's country of nationality and citizenship.

The full text of the opinion may be found at: ">http://www.ca2.uscourt.../de.....9/1/hilite/

Panel: Circuit Judges Winter, Parker, and Hall

Argument Date: 04/23/2014

Date of Issued Opinion: 10/02/2014

Docket Number: 12-809

Decided: Vacated and Remanded

Case Alert Author:
Sam Kopf

Counsel: Urgen, Pro Se, for Petitioner; Yanal H. Yousef, Office of Immigration Litigation, Civil Division (Stuart F. Delery, Principal Deputy Assistant Attorney General, Jamie M. Dowd, Senior Litigation Counsel, on the brief), United States Department of Justice, for Respondent

Author of Opinion: Per Curiam

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 10/02/2014 01:22 PM     2nd Circuit     Comments (0)  

  Castellanos v. Small
Headline: Ninth Circuit Reverses Denial of Habeas Relief after Finding Prosecutor's Purposeful Discrimination during Voir Dire.

Areas of Law: Criminal Law & Procedure, Constitutional Law

Issue Presented: Whether any purposeful discrimination had occurred during voir dire, possibly violating Petitioner-Appellant's constitutional rights under the Fourteenth Amendment.

Brief Summary: Petitioner-Appellant, Anthony Castellanos ("Castellanos") appealed from the district court's denial of his application for Habeas relief. The Ninth Circuit granted collateral review to determine whether Castellanos' constitutional rights under the Fourteenth Amendment were violated as a result of purposeful discrimination that may have occurred during voir dire.

The Court explained that under Batson v. Kentucky and People v. Wheeler, a defendant must first present a prima facie showing of purposeful discrimination. Then, the prosecution must offer a race-neutral justification so that the court may weigh the persuasiveness of the prosecution's reasons in light of the evidence.

The Court then assessed the reasonableness of the district court's factual determinations and conducted a formal comparative juror analysis using limited evidence presented only in the state court proceeding. Describing the prosecutor's reasons for striking particular venirepersons as pretextual, the Court held that the prosecution failed to meet its burden to make a race-neutral justification.

The Court concluded that purposeful discrimination during the voir dire examination had occurred, and that Castellanos' constitutional rights under the Fourteenth Amendment were violated. Thus, the Court remanded the case with instructions to grant Castellanos' application for Habeas relief.

Extended Summary:
Castellanos was 17 years old when he pointed a gun at 12-year-old Nicky and shot him in the head. Having tried to recruit Nicky and 11-year-old Joey to join his gang, Castellanos was charged in Los Angeles County Superior Court with murder, assault with a firearm, and street gang solicitation. Castellanos pleaded not guilty to all charges and proceeded to a jury trial.

During voir dire, twenty-nine venirepersons were questioned. Twelve venirepersons occupied the main jury box at any given time, and as a new venireperson entered the jury box, another was excused. A