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May 11, 2015
  Templin v. Independence Blue Cross - Third Circuit
Headline: Litigation Activity a Catalyst for Attorney's Fees Under ERISA, Third Circuit Holds

Area of Law: ERISA, Attorneys' Fees

Issues Presented:

Under ERISA, does litigation activity that produces a settlement suffice to establish "some degree of success on the merits" for purposes of awarding attorney's fees under that statute?

Brief Summary:

Plaintiffs sought pre-settlement interest on insurance claims arising under ERISA and obtained a second settlement for that interest. Subsequently, Plaintiffs sought to obtain attorney's fees. The district court denied the request on the ground that no judicial action had taken place which was required for to show the requisite degree of success to be eligible for attorney's fees. The Third Circuit held that litigation activity generally, and not merely judicial action, is sufficient to justify the "success" necessary to be eligible for attorney's fees. Further, the Third Circuit held that the district court had improperly applied mandatory factors for granting or denying attorney's fees and remanded on that basis.

Extended Summary:
Plaintiffs sought attorney's fees after settling ERISA denial of benefits litigation with Defendant insurance companies and their request was denied. The Third Circuit had previously affirmed the denial of attorney's fees and remanded for a determination of whether Plaintiffs were owed interest on the delayed payment of benefits. The insurance companies ultimately settled on the interest claims and Plaintiffs again sought attorney's fees and costs of $349,385.15. The district court denied attorney's fees on the grounds that Plaintiffs had failed to show the required "degree of success on the merits" largely because the case had settled before liability was determined and because the amount settled for was far smaller than the amount originally sought. The district court rejected the applicability of the "catalyst" theory - where litigation produces a settlement - when there was no judicial action taken to produce it.

The Third Circuit first examined the general applicability of the catalyst theory under ERISA. The Third Circuit noted that a claimant does not have to be a prevailing party in a judicial proceeding to recover attorney's fees under ERISA. The Third Circuit held that the catalyst theory is therefore available and district courts are granted broad discretion in awarding attorney's fees based on whether plaintiff achieved some degree of success on the merits. The Third Circuit then held it was error to exclude litigation activity as a potential catalyst for settlement. Where the settlement award is non-trivial on a non-procedural matter, the Third Circuit held that litigation activity is sufficient to establish the required degree of success for attorney's fees under ERISA and judicial action is not required.
Finally the Third Circuit examined the district court's application of the mandatory "Ursic factors" for determining whether to grant attorney's fees. The Third Circuit held that the district court had misapplied the factors and reversed and remanded the district court's decision for reapplication of the Ursic factors.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/134493p.pdf

Panel: Ambro, Fuentes, and Nygaard, Circuit Judges

Argument Date: October 21, 2014

Date of Issued Opinion: May 8, 2015

Docket Number: No. 13-4493

Decided: Reversed and Remanded

Case Alert Author: Philip Jones

Counsel:

Timothy S. Cole, Esq., Anthony J. Pauduano, Esq. (argued) for Plaintiffs

David L. Comerford, Esq., Katherine M. Katchen, Esq. (argued), Matthew R. Varzally, Esq. for Appellees Independence Blue Cross and QCC Insurance Co.

John P. Kahn, Esq., Jeffrey M. Kolansky, Esq., Mark J. Oberstaedt, Esq. (argued) for Appellee Carefirst Inc.

Author of Opinion: Nygaard, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 05/11/2015 02:25 PM     3rd Circuit     Comments (0)  

May 8, 2015
  USA v. Joseph Merlino - Third Circuit
Headline: Third Circuit Holds That a District Court Lacks Subject Matter Jurisdiction to Revoke Supervised Release When No Warrant or Summons Issues Before the Expiration of Supervised Release.

Area of Law: Criminal Law

Issue Presented: Does a district court have jurisdiction to revoke supervised release when neither an arrest warrant nor a summons concerning an alleged violation of supervised release was issued before the term of supervised release expired?

Brief Summary:
The district court revoked Joseph Merlino's supervised release for conversing with his co-defendants during the period of supervision. Merlino challenged this revocation, asserting that the district court did not have subject matter jurisdiction because no warrant or summons was issued prior to the expiration of his term of supervised release. In opposition, the Government argued that the district court had jurisdiction because the statute was subject to equitable tolling.
The Third Circuit Court agreed with the defendant, holding that 18 U.S.C. § 3583(i) was a jurisdictional statute that requires a warrant or summons to be issued before the expiration of supervised release in order for a district court to conduct revocation proceedings. Further, the Court held that the jurisdictional deadline described in § 3583(i) is not subject to equitable tolling. Because the summons in this matter was issued after the termination of supervised release, the Court concluded that the district court lacked subject matter jurisdiction to revoke supervised release. Accordingly, it vacated the district court's order revoking supervised release and imposing a prison term on Defendant Joseph Merlino.

Extended Summary:
Joseph Merlino, the reputed former head of the Philadelphia La Cosa Nostra, began a three-year term of supervised release on September 7, 2011. On June 18, 2014, law enforcement observed Merlino at a cigar bar in Boca Raton, Florida, conversing with several convicted felons, including John Ciancaglini, one of Merlino's former co-defendants. The probation office concluded that this violated the terms of Merlino's supervised release. On August 26th, over two months later, Merlino's probation officer presented a revocation petition to the district court.
On September 2nd, the district court ordered the issuance of a summons directing Merlino to appear for a revocation hearing. Merlino's counsel stated that he would be unavailable for this hearing until December. Due to the Government's reluctance to accommodate the substantial delay, defense counsel asked the deputy clerk to wait until the end of the following week to set a date so that he could clear his schedule, and the district court judge agreed. On September 16th, after determining an agreed upon date five days earlier, the clerk issued a "notice of hearing" summoning Merlino for a revocation hearing on October 10th.
On October 6th, defense counsel notified the district court of his belief that the Court lacked jurisdiction over the revocation proceedings because no warrant or summons had issued before the expiration of Merlino's supervised release term on September 6th. On the basis of the deputy clerk's testimony that absent defense counsel's request for a delay the notice of hearing would have issued prior to the expiration of Merlino's term, the Court concluded that the deadline had been equitably tolled, such that the notice filed on September 16th was timely. On October 24th, the district court conducted a revocation hearing, found that Merlino had violated the terms of his release, and sentenced Merlino to four additional months of imprisonment. Merlino timely appealed.
The issue on appeal required interpretation of 18 U.S.C. § 3583(i), the jurisdictional statute requiring that a warrant or summons must issue before the expiration of supervised release in order for a district court to conduct revocation proceedings. The district court claimed jurisdiction to revoke supervised release under this statute, citing the "delayed revocation" section. The "delayed revocation" section of § 3583(i) provides that the power of the court to revoke a term of supervised release extends beyond the expiration of the term of supervised release "for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation."
The Third Circuit Court found that the language of the statute was clear and unequivocal, in that a warrant or summons must issue before a term of supervised release expires in order for the district court to exercise its authority to revoke supervised release. The district court recognized this condition, but nevertheless issued revocation on its finding that § 3583(i) was subject to "equitable tolling."
The Court rejected the argument that § 3583(i) was subject to equitable tolling because it is not a jurisdictional statute. The Court found that the plain language of the statute makes clear that the deadline is jurisdictional. It reasoned that § 3583(i) does not merely set a deadline, but also expressly authorizes a grant of power to the district court and conditions the existence of that power on a specific event.
The Court also rejected the Government's argument that the district court's order directing the issuance of a summons, taken in combination with notice to Merlino's counsel, satisfied § 3583(i)'s requirement that "a warrant or summons [be] issued." The Court explained that while "summons" is not defined for purposes of § 3583, the term is defined elsewhere in the context of federal criminal proceedings as requiring a summons on a criminal complaint to be in the same form as a warrant except that it must require the defendant to appear before a magistrate judge at a stated time and place. The Court explained that the district court's order directing the issuance of a summons failed to meet this definition because it did not require the defendant to appear and answer. Additionally, the deputy clerk's informal communication with defense counsel was not the functional equivalent of the "issuance" of a "summons." The Court emphasized that the statute requires "issuance," not notice. Therefore, anything other than formal issuance of a warrant or summons does not satisfy the mandate of § 3583(i). Accordingly, the Court vacated the district court's order.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/144341p.pdf.
Panel (if known): Ambro, Vanaskie, and Shwartz, Circuit Judges

Argument Date: April 14, 2015

Date of Issued Opinion: May 5, 2015

Docket Number: No. 14-4341

Decided: Vacated the district court's order of October 24, 2014

Case Alert Author: Jaclyn Poulton

Counsel:
Counsel for Appellant: Edwin J. Jacobs, Jr., Esq. and Michael F. Myers, Esq. (Jacobs & Barbone); Gary S. Silver, Esq. (Silver Legal Services)
Counsel for Appellee: Zane D. Memeger, Esq.; David E. Fritchey, Esq.; Joseph F. Minni, Esq.; David E. Troyer, Esq. (Office of the United States Attorney)

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 05/08/2015 08:05 PM     3rd Circuit     Comments (0)  

May 7, 2015
  Munns v. Kerry - Ninth Circuit
Headline: The Ninth Circuit Holds Plaintiffs Lacked Standing To Challenge The State Department's Policies Governing The Handling Of Kidnappings and Security Contractors In Iraq.

Areas of Law: Constitutional Law

Issues Presented: Do family members of kidnapped and murdered contractors in Iraq, and a former contractor in Iraq, have standing to challenge U.S. Government policies that regulated contractors in Iraq and prevented the families of kidnapping victims from communication aimed at saving them?

Brief Summary:
This case addresses standing to bring a claim against the U.S. government in district court. Family members of three Americans who were kidnapped and murdered while working as contractors in Iraq, as well as a former contractor who seeks to return to Iraq, sued to enjoin policies governing (1) supervision of private contractors and (2) the response to kidnappings in Iraq.

The first policy challenged was CPA Order 17, which allegedly gave "blanket immunity" to contractors from prosecution for their actions in Iraq. It was argued that Order 17 exceeded the executive branch's constitutional authority. The Ninth Circuit found that the plaintiffs lacked sufficient continuing injury to support standing for injunctive relief. The injury asserted was that Order 17 led to lawless behavior which may have been the motivation behind the kidnappings, and plaintiff feared that this would happen to him if he went back to Iraq to work again. The Ninth Circuit said this was too speculative and attenuated in affirming the dismissal for lack of standing.

The other policy challenged was that of the State Department, which prevented the family members from negotiating for the release of the victims and passing out flyers inquiring if anybody had any information related to the kidnappings. Plaintiffs alleged this policy violated their First Amendment rights. Like the first claim, the Ninth Circuit held these claims lacked continuing personal injury because plaintiffs' family members were already dead, and it could not be shown how these policies would adversely affect plaintiffs in the future.

Extended Summary:
Joshua Munns, John Young and John Cote were kidnapped and brutally murdered in 2008 while providing contract security services during the United States military occupation of Iraq. Family members of the victims alleged they were prevented from negotiating their release. Specifically, the State Department allegedly told them they could not meet a person who had information about the victims and their whereabouts. The State Department also allegedly blocked distribution of 90,000 flyers that offered a reward for information. The family members claimed this violated their First Amendment rights to free speech and free assembly, and sought injunctive relief from the government policies.

Gary Bjorlin was formerly employed as a contractor in Iraq and wishes to return, but feared he would be kidnapped and murdered because his family would not be able to aid his relief. He joined the victims' family members' First Amendment claims, and also asserted that Coalition Provisional Authority (CPA) Order 17 exceeded the executive branch's constitutional authority. This order was in place during the occupation of Iraq, and allegedly granted "blanket immunity" to contractors from U.S. prosecution for their actions in Iraq. It was also alleged that this policy led to lawless behavior by some security contractors and may have motivated the kidnappings. He sought an injunction preventing the government from implementing CPA Order 17 or a similar policy in the future.

The plaintiffs appealed from a district court judgment that dismissed their claims due to lack of standing and because they were nonjusticiable political questions. The dismissal with prejudice was reviewed de novo by the Ninth Circuit. The Court agreed that the plaintiffs lacked Article III standing to seek declaratory and injunctive relief, and did not address the political question issue.

The main issue was whether the plaintiffs had alleged an "injury in fact" that was sufficiently "concrete and particularized." The threat to Bjorlin from CPA Order 17 was too speculative to constitute an injury in fact. Even if it was presumed the government order actually caused lawless behavior and motivated the kidnappings, the order was no longer in effect. For the injury to occur Bjorlin would have to seek employment, be hired and sent to Iraq again, and CPA Order 17 or a similar order would have to be reinstated. The alleged injury was far too attenuated to be considered impending or to present a substantial risk of its occurrence.

Bjorlin's risk of injury was no less speculative than that of the plaintiff in City of Los Angeles v. Lyons, which did not satisfy standing for injunctive relief. 461 U.S. 95, 108 (1983) (Lyons was subject to an illegal police chokehold and feared he would be stopped again and subject to the same chokehold). Therefore Bjorlin's claims regarding CPA Order 17 were properly dismissed for lack of standing. Bjorlin's claims regarding the hostage response policies were based on the same type of injury, and were properly dismissed for the same reasons.

The family members did not allege that they are likely to be reinjured by the hostage response policies, only that the policies should be declared unlawful and prevented from being implemented in the future. Although they might have sought further communication with Iraq to determine who killed the victims, this was too speculative, especially because it was uncertain the government would apply the same policies. The Ninth Circuit affirmed the dismissal of the family members' claims for lack of standing.

Judge Reinhardt wrote a concurrence, which stated in part that the Ninth Circuit in no way opined on the proper policies for the government to follow regarding contractors in Iraq or terrorism.

To read the full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...015/03/20/12-15969.pdf

Panel: Reinhardt, Fisher, and Berzon

Argument Date:
September 11, 2014

Date of Issued Opinion: March 20, 2015

Docket Number: No. 12-15969

Decided: Affirmed

Case Alert Author: Matthew J. Gustin

Counsel:
William W. Palmer of the Law Offices of William W. Palmer, Sacramento, California for Plaintiffs - Appellants.

H. Thomas Byron, III, Michael Raab, Stuart F. Delery, Assistant Attorney General, Joyce R. Branda, Acting Assistant Attorney General, and Benjamin B. Wagner, United States Attorney, United States Department of Justice, Civil Division, Appellate Staff, Washington D.C., for Defendants - Appellees.

Author of Opinion: Judge Fisher

Circuit: Ninth

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 05/07/2015 11:42 PM     9th Circuit     Comments (0)  

  John Doe v. Robert L. Ayers, Jr., Warden, of California State Prison at San Quentin
Headline: Ninth Circuit Vacates Defendant's Capital Sentence After His Counsel Failed To Present Available Mitigating Evidence During The Penalty Phase Of Trial

Area of Law: Criminal Procedure, Capital Punishment, Antiterrorism and Effective Death Penalty Act (AEDPA)

Issue Presented:
Under pre-AEDPA standard of review, can a criminal defendant who was sentenced to death have his sentence vacated when his appointed counsel failed to present available mitigating evidence such as past sexual abuse, mental illness, neglect and illness during childhood, and substance abuse.

Brief Summary:
Defendant was convicted of felony-murder. At a separate sentencing proceeding, the jury returned a sentence of death. Defendant challenged his sentence prior to the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) claiming his appointed counsel provided ineffective assistance of counsel by failing to investigate and present mitigating evidence at his sentencing phase of trial. To reverse his sentence, defendant must prove his appointed counsel performed deficiently, and as a result, defendant was prejudiced. After his conviction, defendant hired habeas counsel who thoroughly investigated the case. The investigation revealed multiple levels of mitigating evidence that was never presented at the defendants sentencing phase. The Ninth Circuit panel granted defendants petition to vacate his capital punishment due to the appointed counsel failure to effectively investigate and present mitigating evidence at the penalty phase of trial.

Significance:
Under a pre-AEDPA standard of review, a defendant may receive a "second bite of the apple" at the sentencing phase of trial if he can prove his government appointed counsel failed to meet constitutional requirements of effective counsel.

Extended Summary:
In 1984, defendant was charged with one count of murder and two counts burglarizing a home after a female body was found naked from the waist down. The women was murdered having been beaten, stabbed and strangled. The court appointed counsel to represent defendant in his murder trial. The appointed counsel had never worked on a death penalty case nor had he ever observed the death penalty phase of trial. After pleading not guilty, the jury returned a verdict finding defendant guilty of both the murder and burglary charges and he was sentenced to death.

In California, capital trials consist of two phases: the guilt phase and the sentencing phase. During the sentencing phase of trial, "the jury weighs aggravating and mitigating evidence to determine whether the death penalty is appropriate." Defendant appealed his death sentence claiming his appointed counsel failed to provide effective assistance of counsel. Using a pre-AEDPA standard of review, defendant must prove he was provided counsel that fell below the objective standard of reasonableness and that he was prejudiced as a result. He claimed his appointed counsel failed to present relevant mitigating evidence that was readily available if competent investigation was performed.

The California Supreme Court denied the defendants direct appeal, his petition for certiorari, and multiple habeas petitions. Defendant then filed a habeas petition in federal court challenging the effectiveness of his counsel at both phases of trial. While the district court rejected his guilt phase challenge, the court did find defendant had received ineffective assistance of counsel at the penalty phase of his trial. However, the district court concluded defendant was not prejudiced as a result of the deficient representation. The Ninth Circuit agreed defendant had received ineffective counsel, and disagreed with the district court by holding defendant was prejudiced as a result. The Ninth Circuit vacated defendants sentence and ordered the federal district court to grant defendants habeas writ.

In determining whether defendant's counsel fell below the objective standard of reasonableness, the Ninth Circuit compared the appointed counsels investigation to the evidence presented by defendant's habeas attorney. The entirety of the sentencing phase comprised just five witnesses whose testimony produced only thirty-five pages of transcript. Of which, defendants mother provided mitigating evidence, but the court stated it was presented in a "bland" and non-compelling manner. Defendant's ex-girlfriend testified that he was compassionate but sometimes angry or crushed. The three other witnesses did not know defendant prior to adulthood, including defendants father whom he had no relationship with prior to the murder charge, defendants aunt who temporarily took him in when he moved to California, and a prison friend who shared bible study with defendant.

Defendant's habeas attorney presented an overwhelming amount of compelling mitigating evidence. The habeas attorney presented prison records which showed defendant was "brutally and repeatedly raped" on several occasions. Evidence showed the rapes occurred during defendants first time in prison while he was just 17. The habeas attorney had a prison guard testify who he saw defendant raped first hand in the back of a garbage truck by a large inmate who was much larger than defendant. Also, a fellow inmate testified that defendant was forced into prostitution for the benefit of another inmate who "owned" defendant. A psychotherapist provided analysis from sessions with defendant where she learned he was raped by a close friend in prison which left him feeling powerless and in constant state of shame.

The psychotherapist also disclosed to the court defendants serious mental illness that arose out of his prison experience and childhood neglect/abuse. The doctor stated defendant provided signs of posttraumatic stress disorder after his first experience in prison. This experience apparently left defendant a "broken man" in major depression that self medicated with drugs and alcohol. The Ninth Circuit was convinced defendant received ineffective counsel after hearing the mitigating evidence presented by defendant's habeas attorney.

The court was unsatisfied with the appointed counsel's the lack of investigation once presented with the findings of the habeas attorney. Appointed counsel did not listen to any available interview tapes nor did he read any transcripts of any interviews with defendant. He read just one interview summary but concluded there was no material evidence for the sentencing phase of trial. There were obvious leads available that defendants appointed counsel did not follow regarding defendants prison files and psychological history. He was satisfied with defendants nine-page prison "rap sheet" that provided basic procedural information and missed all available rape evidence. The appointed attorney only interviewed defendant once. He hired one psychological expert but only asked her to determine whether any mental state defenses could be mounted based on "obvious signs of mental impairment" and nothing more.

The Ninth Circuit held the district court erred in deciding defendant was not prejudiced by his appointed counsel's ineffective counsel. A "but for" standard is used to determine prejudice. The Ninth Circuit determined "but for" appointed counsels unprofessional errors, the result of defendants sentencing phase would have been different. The Ninth Circuit found a substantial probability existed that a different result would have occurred if defendant had received effective counsel.

To read the full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/03/31/15-99006.pdf

Panel: Harry Pregerson, Stephen Reinhardt, and Kim McLane Wardlaw, Circuit Judges.

Docket Number: No. 15-99006

Decided: Murder conviction affirmed but capital sentence was vacated and remanded.

Case Alert Author: Brian D. Shapiro

Counsel: John R. Grele (argued), Tiburon, California; and David W. Fermino, Sideman & Bancroft, San Francisco, California, for Petitioner-Appellant.
Barry J. Carlton (argued), Supervising Deputy Attorney General, San Diego, California, for Respondent-Appellee.

Author of Opinion: Judge Stephen Reinhardt

Circuit: Ninth

Case Alert Circuit Supervisor: Ryan T. Williams

    Posted By: Ryan Williams @ 05/07/2015 11:33 PM     9th Circuit     Comments (0)  

May 5, 2015
  Morgan Drexen v. Consumer Financial Protection Bureau
Headline: Split panel rules that regulated party lacks standing to bring a facial constitutional challenge to the composition of a the Consumer Financial Protection Bureau in absence of an enforcement action.

Area of Law: Standing, Declaratory Judgment, Consumer Protection

Issue(s) Presented: Whether a lawyer who contracts with a legal software firm has standing to challenge the constitutionality of the CFPB in the absence of an enforcement action against her directly; whether a declaratory judgment regarding the constitutionality of the CFPB is appropriate when an enforcement action is pending in another forum.

Brief Summary: In April 2013, the Consumer Financial Protection Bureau ("CFPB") notified Appellant Morgan Drexen, a Nevada corporation headquartered in California that provides software and legal support services to law firms, that CFPB was considering an enforcement action against it and its CEO. The CFPB, established under Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act, enforces federal consumer financial laws. It has rulemaking, supervisory, investigatory, adjudicatory, and enforcement authority. In July 2013 Morgan Drexen and Appellant Kimberley Pisinski, a lawyer who contracted with it for support services, sued the CFPB in federal court in the District of Columbia challenging the constitutionality of the CFPB on separation of powers grounds. Appellants sought declaratory and injunctive relief.

In August 2013, CFPB filed an enforcement action against Morgan Drexen only in federal court in California. That action alleged that Morgan Drexen violated the Telemarketing Sales Rule and made misleading representations to consumers. Two days later, Morgan Drexen and Pisinski moved in the D.C. court for a temporary restraining order and a preliminary injunction to enjoin the California enforcement action.

In October 2013, the U.S. District Court for the District of Columbia granted CFPB's motion to dismiss Morgan Drexen and Pisinski's suit. Without reaching the merits of the constitutional challenge, the court found that Morgan Drexen would have an adequate remedy for its constitutional claims in the California enforcement action and that Pisinski lacked Article III standing to assert a claim.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed the decision. The D.C. Circuit agreed with the district court that Morgan Drexen could raise its constitutional challenges to the composition and authority of the CFPB as defenses in the enforcement action and that doing so would have the advantage of avoiding piecemeal litigation and resolving all issues in a single case. Further, emphasizing that the California enforcement action had been filed fewer than thirty days after Appellants filed their suit in the District of Columbia, the court concluded that Morgan Drexen had not been subject to a an extended period of uncertainty about the legality of its actions and thus had suffered no irreparable injury from the denial of its request for declaratory judgment. Finally, the court determined that the district court's action had relieved Morgan Drexen of the inconvenience of litigating overlapping issues in two federal forums.

The majority was unpersuaded by Pisinski's argument that she had Article III standing to pursue the constitutional challenge on the theory that the enforcement action against Morgan Drexen was inherently an enforcement action against her because it could disrupt her law practice or injure her professional reputation by implying that she was responsible for, or participated in, the alleged illegal conduct. The court determined that Pisinski had failed to proffer sufficient evidence in support of her theory. She was not the subject of the enforcement action, and the court found no evidence in the record that CFPB had ever threatened action against Pisinski or any other lawyers with whom Morgan Drexen contracted. Further, the court found that Pisinski had not shown that the services for which she contracted with Morgan Drexen were targeted in the enforcement action and that any economic or reputational injury to her practice as a result of the action were speculative. Rather, the court held that she had a consumer-services contractual relationship with Morgan Drexen that, without more, did not suffice to confer standing.

In dissent, Judge Kavanaugh argued that Pisinski had standing. He reasoned that CFPB regulates a business in which Pisinski engages, which is enough to confer standing.

The full text of this opinion may be found at http://www.cadc.uscourts.gov/i...0C4B/$file/13-5342.pdf

Panel: Rogers, Kavanaugh, Pillard

Argument Date: 11/19/2014

Date of Issued Opinion: 5/1/ 2015

Docket Number: 13-5342

Decided: Affirmed

Counsel (if known): Randall K. Miller, Nicholas M. DePalma, and Randal M.
Shaheen for Appellants.

John R. Coleman and Meredith Fuchs for Appellee.

Author of Opinion: Rogers

Dissent: Kavanaugh

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/05/2015 08:24 AM     DC Circuit     Comments (0)  

May 1, 2015
  Helmerich & Payne International Drilling Co. v. Bolivarian Rep. of Venezuela -- D.C. Circuit
Headline: Split D.C. Circuit panel permits suit against Venezuela for 2010 seizure of deep-water oil rigs.

Area of Law: Foreign Sovereign Immunities Act

Issue: Whether an American-based company and its Venezuela-based subsidiary can pursue claims against Venezuela for expropriation and breach of contract under the expropriation and commercial activities exceptions of the Foreign Sovereign Immunities Act.

Brief Summary: Helmerich & Payne (H&P), an Oklahoma-based company with a Venezuela-based subsidiary (H&P-V), operated deep-water drilling rigs off of Venezuela, contracting its business with state-owned Petroleos de Venezuela (PDVSA). By 2009, PDVSA had defaulted on ten contracts and was $100 million in arrears. H&P-V announced its intention not to renew the contracts and disassembled its rigs, stacking its equipment in preparation for leaving Venezuela. On June 2010, PDVSA and armed soldiers seized the disassembled rigs, and the government announced it had "[taken] control over the company" by "forcible possession." H&P and H&P-V brought suit in the U.S. District Court for the District of Columbia against PDVSA and Venezuela for taking the rigs in violation of international law and against PDVSA for breach of contract. PDVSA and Venezuela claimed that the Foreign Sovereign Immunities Act (FSIA) and the act-of-state doctrine barred both claims.

The district court determined that, while H&P-V was a "national" of Venezuela and could not itself pursue a claim for a violation of international law, H&P had standing to assert a taking in violation of international law on behalf of its property interest in its subsidiary under FSIA's expropriation exception. Moreover, the court found that H&P had alleged sufficient "direct effects" within the United States to qualify for the FSIA's "commercial activity" exception. This appeal followed.

The U.S. Court of Appeals for the District of Columbia Circuit affirmed in part and reversed in part. The court started from the premise that it would permit a suit to proceed under the expropriation exception unless plaintiff's claims were "wholly insubstantial or frivolous." The court noted that all parties agreed that a corporation has the nationality of the state under which it is organized and that a foreign state's expropriation of its own property (a so-called "domestic taking") does not violate international law. However, guided by a 1962 Second Circuit precedent, the court found an exception to the domestic takings rule where the state expropriated property of a company because its shareholders were predominantly foreign. The court found that the Venezuelan government's anti-American statements supported the "discriminatory takings" exception, and, at this stage of the proceedings, such a claim was neither "wholly insubstantial" nor "frivolous." The court thus permitted H&P-V's claim to proceed in its own right.

Turning to the claim that H&P, a shareholder, lacked sufficient interest in H&P-V to assert claims, the court determined that under the FSIA, H&P's ownership interest in H&P-V's property sufficed to confer standing. In so doing, the court declined to import the "shareholder standing rule" into the FSIA.

Because the district court had not ruled on Venezuela's act-of-state claim below, the court declined to do so, reasoning that the claim might be mooted by subsequent adjudication of the expropriation issue.

Finally, the court determined that PDVSA's breach of contract lacked sufficient "direct effect" in the United States to fall under the FSIA's commercial activity exception. The court concluded that PDVSA's breach did not require H&P-V to breach any existing contracts with U.S. subcontractors and that the contract did not require PDVSA to make payments to Oklahoma banks. The court also rejected the argument that PDVSA's breach stopped a flow of resources between Venezuela and the United States, as the court concluded that any such interruption was the result of H&P-V's decision not to renew the fixed-period contract.

Judge Sentelle dissented as to the applicability of the expropriation exception. He concluded that the domestic takings rule precluded H&P-V's claim and that H&P, as a shareholder, lacked standing under ordinary corporate law principles to assert a claim on H&P-V's behalf.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...e/13-7169-1550133.pdf

Panel: Judges Garland, Tatel, and Sentelle

Argument Date: 01/16/2015

Date of Issued Opinion: 05/01/2015

Docket Number: No. 13-7169

Decided: Affirmed in part, reversed in part.

Opinion Author: Judge Tatel

Case Alert Author: Elizabeth Earle Beske/Ripple Weistling

Counsel: Mary H. Wimberly, Joseph D. Pizzurro, Robert B. Garcia, George E. Spencer, William L. Monts III, and Bruce D. Oakley for Appellants.

David W. Ogden, David W. Bowker, Catherine M. Carroll, Elisebeth C. Cook, and Francesco Valentini for Appellees

    Posted By: Ripple Weistling @ 05/01/2015 01:38 PM     DC Circuit     Comments (0)  

April 30, 2015
  West Virginia CWP Fund v. Bender -- Fourth Circuit
Headline: Don't Presume the Worst - Fourth Circuit Upholds Standard Benefitting Coal Miners with Black Lung

Areas of Law: Administrative Law, Health Care

Issue Presented: Whether a "rule-out" standard for determining a connection between a coal miner's pneumoconiosis and his disability, as promulgated by the Department of Labor, is valid.

Brief Summary: Page Bender worked as an underground coal miner for twenty-one years. He also had a heavy smoking habit for over forty years. In 2007, he was diagnosed with lung cancer, and he has since undergone extensive related treatment. In 2009, he applied for benefits made available pursuant to the Black Lung Benefits Act. All of the medical experts involved agreed that he suffers from a totally disabling respiratory condition.

The administrative law judge (ALJ) reviewing the claim applied a statutory presumption that Bender's disability was due to black lung (pneumoconiosis). This presumption is available when the claimant worked as an underground coal miner for more than fifteen years, suffers a totally disabling respiratory or pulmonary impairment, and the presence of pneumoconiosis cannot be disproved. This operates as a "rule-out" standard, whereby a claimant entitled to the presumption can only be denied benefits if pneumoconiosis can be entirely ruled out. Upon review of the testimony of the involved experts, the ALJ determined that the coal mine operator had not presented evidence sufficient to rebut the presumption, and awarded benefits to Bender. The operator petitioned for review, and argued that the ALJ erred in applying the "rule-out" standard.

In its analysis, the United States Court of Appeals for the Fourth Circuit traced the history of the presumption. It was created by Congress in 1972, but the Supreme Court in 1976 in Usery v. Turner Elkhorn Mining Co. held it does not apply to coal mine operators opposing a miner's claim for benefits. The Department of Labor clarified the statute by regulation in 1980; but in 1981, Congress eliminated the presumption for all claims filed after 1981. With that, the presumption remained entombed until the Patient Protection and Affordable Care Act revived it in 2010, when Congress used language identical to that from the original in the new statutory presumption.

In analyzing the validity of the "rule-out" standard, the Fourth Circuit first determined that Congress has not directly spoken on the issue, in spite of the coal mine operator's argument that the Usery decision precludes any application of the rule out standard to operators. The Fourth Circuit concluded that the Usery decision applied only to the specific statutory rebuttal standard applied in that case, and not to regulations promulgated under the statute.

With that question answered, the Fourth Circuit asked only whether application of the standard is "a reasonable choice within the gap left open by Congress." Here, the court noted that the same regulation was promulgated in 1980, and that Congress must have been aware of that when it reenacted the presumption in 2010, but did not make any changes.

The court noted that the presumption with a "rule-out" standard places a high burden on coal mine operators, but it decreases the burden of claimants seeking benefits, which was Congress' goal in creating the presumption. In upholding the standard, the Fourth Circuit mirrored a recent decision by the Sixth Circuit. The Fourth Circuit denied the petition for review and affirmed the decision of the ALJ.

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

Panel: Judges Keenan, Floyd, and Harris

Argument Date: 12/29/2015

Date of Issued Opinion: 04/02/15

Docket Number: No. 13-2034

Decided: Petition for review denied by published Opinion.

Case Alert Author: David Arnold, Univ. of Maryland Carey School of Law

Counsel: ARGUED: William Steele Mattingly, JACKSON KELLY PLLC, Morgantown, West Virginia, for Petitioner. Sean Gregory Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Roger Daniel Forman, LAW OFFICE OF ROGER D. FORMAN, Buckeye, West Virginia, for Respondents. ON BRIEF: M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Maia S. Fisher, Deputy Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs, United States Department of Labor.

Author of Opinion:
Judge Keenan

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 11:39 AM     4th Circuit     Comments (0)  

  VonRosenberg v. Lawrence -- Fourth Circuit
Headline: Battle of the Bishops -- Determining Federal Court Abstention for Declaratory and Non-Declaratory Claims

Area of Law: Civil Procedure

Issue Presented: Whether the district court properly abstained from hearing an action seeking both declaratory and non-declaratory relief while a concurrent state proceeding was underway.

Brief Summary: Bishop Charles vonRosenberg and Bishop Mark Lawrence are clergymen who each believe they are the leader of the Protestant Episcopal Church in the Diocese of South Carolina. Bishop vonRosenberg alleged that the Disciplinary Board of the Protestant Episcopal Church ousted Bishop Lawrence from his position but Bishop Lawrence improperly continued to use the Church's service marks and falsely advertised himself as the leader of the church. Bishop Lawrence maintains that he was not removed from office and that Bishop vonRosenberg serves only as leader of an unincorporated Episcopal association. Prior to Bishop vonRosenberg's district court lawsuit, some of Bishop Lawrence's supporters filed a suit in South Carolina state court against the church, alleging violations of service mark infringement and improper use of names, styles, and emblems. Bishop vonRosenberg then filed suit against Bishop Lawrence in federal district court seeking declaratory and non-declaratory relief for Bishop Lawrence's unauthorized use of the church's service marks and for falsely advertising himself as the leader, in violation of the Lanham Act. In response, Bishop Lawrence asked the district court to abstain due to the pending state court proceedings. The district court stayed the action because Brillhart v. Excess Insurance Co. of America and Wilton v. Seven Falls Co. afford federal courts broad discretion to abstain from deciding declaratory judgment actions when concurrent state proceedings are underway. Bishop vonRosenberg appealed, arguing the district court should have followed Colorado River Conservation District v. United States, wherein the Supreme Court held a federal court may only abstain from deciding non-declaratory claims if exceptional circumstances exist.

Prior to this case the United States Court of Appeals for the Fourth Circuit had never addressed which abstention standard applies to both declaratory and non-declaratory claims, but it joined other circuits and held that Colorado River should govern. According to the court, permitting courts broad discretion under Brillhart and Wilton would deprive a plaintiff from accessing a federal forum simply because he sought declaratory relief and an injunction or money damages. Since the district court did not apply the Colorado River standard, the Fourth Circuit vacated the stay and remanded for a determination of whether exceptional circumstances exist.

To read the full opinion, please click here.

Panel: Judges Motz, Gregory, and Wynn

Argument Date: 01/28/2015

Date of Issued Opinion: 03/31/2015

Docket Number: No. 14-1122

Decided: Vacated and remanded by published opinion
Case Alert Author: Jamie Lee

Counsel: ARGUED: Richard C. Weidman, Great Falls, Virginia, Appellant Pro Se. Thomas Patrick Murphy, HUNTON & WILLIAMS, LLP, McLean, Virginia, for Appellees. ON BRIEF: Arthur E. Schmalz, Ryan M. Bates, HUNTON & WILLIAMS LLP, McLean, Virginia, for Appellees.

Author of Opinion:
Judge Motz

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 11:11 AM     4th Circuit     Comments (0)  

  Covert et al. v. LVNV Funding et al. -- Fourth Circuit
Headline: A Thing Decided - Fourth Circuit Applies Res Judicata to Lawsuits Spawned from Bankruptcy Proceedings

Area of Law: Bankruptcy

Issue Presented: Whether the doctrine of res judicata precludes litigation over the validity of a creditor's proof of claim filed in a concluded Chapter 13 bankruptcy proceeding.

Brief Summary: Several individuals filed for bankruptcy under Chapter 13 in 2008. In bankruptcy, creditors must file a "proof of claim" describing the debts owed. LVNV and its affiliates owned a default debt against each individual debtor and therefore filed proofs of claim in each proceeding. After the Bankruptcy Court approved the debtors' Chapter 13 plans, the debtors began making payments to LVNV. In March 2013, however, the plaintiff debtors filed a class action claim against LVNV alleging violation of the federal Fair Debt Collection Practices Act (FDCPA) and related Maryland statutory and common law. The plaintiffs argued that LVNV was not a licensed debt collector under the FDCPA and related law and therefore should not have been allowed to file a proof of claim in their now-concluded bankruptcy actions. The U.S. District Court for the District of Maryland granted LVNV's motion to dismiss, stating that res judicata barred the plaintiffs' common law claims. The court also held the plaintiffs failed to state an FDCPA claim because filing a proof of claim is not a debt collection act. The plaintiffs appealed to the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit held that the doctrine of res judicata barred all of the appellants' claims, not just those at common law. Under res judicata, a prior judgment between parties precludes subsequent litigation on those issues "actually and necessarily resolved in the first adjudication." The court employed a three-part test and determined that res judicata applied because 1) the confirmation of a Chapter 13 plan is a final judgment on the merits; 2) the parties in the 2013 lawsuit were the same parties as in the 2008 proceedings; and 3) each of the appellants' claims flowed from the same "core of operative facts" as the bankruptcy proceeding (in other words, the appellants could point to no new information to support their claims that was not available to them during the 2008 proceedings). The court stressed that the appellants could have raised all of their claims during the bankruptcy proceedings, but chose not to. Allowing debtors to raise these claims after the conclusion of proceedings would frustrate a fundamental aim of bankruptcy, which is to provide a final binding plan to which all parties must adhere. Therefore, the Fourth Circuit affirmed the district court's dismissal of the plaintiffs' claims.

To read the full opinion please click here.

Panel: Judges Niemeyer, Shedd, and Keenan

Argument Date: 12/11/2014

Date of Issued Opinion: 03/03/2015

Docket Number: No. 14-1016

Decided: Affirmed

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

Counsel: ARGUED: Laura J. Margulies, LAURA MARGULIES & ASSOCIATES, LLC, Rockville, Maryland, for Appellants. Ronald S. Canter, LAW OFFICES OF RONALD S. CANTER, LLC, Rockville, Maryland, for Appellees. ON BRIEF: Lawrence P. Block, Janet M. Nesse, STINSON LEONARD STREET LLP, Washington, D.C., for Appellants.

Author: Judge Shedd

Case Alert Circuit Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 10:39 AM     4th Circuit     Comments (0)  

  Arthur v. Pet Dairy, et al. -- Fourth Circuit
Headline: Fourth Circuit Spoils Milkman's Age Discrimination Suit

Area of Law: Employment Discrimination

Issue Presented: Whether the district court erred by granting summary judgment to an employer in an employee's suit over improper termination under the Age Discrimination in Employment Act ("ADEA").

Brief Summary: Appellant Arthur was formerly employed as a milkman for defendant Pet Dairy. From 2003 to 2009, Arthur was responsible for Pet Dairy's most lucrative delivery route, which included the local Lynchburg School Division ("School Division") and Barnes & Noble. During his employment with Pet Dairy, Arthur received several disparaging comments about his age. For example, in 2005, Reynolds was assigned to supervise Arthur. Reynolds immediately suggested that Arthur quit due to his old age.

Reynolds also warned Arthur repeatedly about his unsatisfactory work performance. Shortly after being hired, Arthur crashed a company SUV with such force that it rolled three times. Arthur also regularly failed to supply customers with adequate supplies of milk and failed to keep a proper inventory of his deliveries. All parties agree that Reynolds threatened to fire Arthur roughly once every two weeks. Indeed, Reynolds left Mr. Arthur at least 17 sticky notes threatening termination. Arthur conceded that all of these notes concerned his work performance.
Arthur's poor work was also reflected in myriad customer complaints. Barnes & Noble demanded that Pet Dairy assign another deliveryman to supply its milk. Arthur once spilled a gallon of milk on the floor of the bookstore. The School Division was not satisfied either. Not only did Arthur fail to supply the School Division with enough milk, he also would leave milk outside on the loading docks to spoil, deliver milk in jugs covered with rust, verbally assault School Division staff, speed through the school parking lot, and behave rudely. Arthur's conduct was so poor that the School Division held an in-service staff training day solely to decide what to do about him. Reynolds attended this event and heard the complaints firsthand. The School Division later sent Reynolds a written memo stating that the School Division would not renew its contract with Pet Dairy unless Pet Dairy replaced Arthur. Furthermore, Pet Dairy's corporate headquarters told Reynolds he needed to increase deliveries per driver, something he could only accomplish by eliminating a driver and dividing the route among the remaining deliverymen. Arthur was terminated shortly thereafter. Arthur challenged his termination as a violation of the ADEA. The district court granted summary judgment for Pet Dairy, and the United States Court of Appeals for the Fourth Circuit affirmed.

To prevail on an ADEA claim, the plaintiff must either 1) raise a presumption of discrimination or 2) offer direct or circumstantial evidence of the employer's discriminatory animus. The burden remains the same regardless of the method employed; the plaintiff must prove that age was the but-for cause of termination. To raise a presumption of discrimination the plaintiff must show, by a preponderance of the evidence, that the plaintiff was satisfactorily performing his duties at the time of termination. The district court held that Arthur failed to make this showing given the numerous complaints about his work. Arthur also could not establish that discriminatory animus was the but-for cause of his termination. The threat of losing its most lucrative customers and the order from headquarters to increase sales per driver provided independent legal bases to justify Arthur's termination.

To read the full opinion please click here.

Panel: Judges Wilkinson, Shedd, and Thacker

Argument Date: 12/09/2014

Date of Issued Opinion: 02/09/2015

Docket Number: No. 13-2530

Decided: Affirmed

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

Counsel: ARGUED: Terry Neill Grimes, TERRY N. GRIMES, ESQ., P.C., Roanoke, Virginia, for Appellant. Victor O'Neil Cardwell, WOODS ROGERS PLC, Roanoke, Virginia, for Appellees. ON BRIEF: Frank K. Friedman, J. Benjamin Rottenborn, WOODS ROGERS PLC, Roanoke, Virginia, for Appellees.

Author: Per curiam

Case Alert Circuit Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 10:34 AM     4th Circuit     Comments (0)  

  Fraternal Order of Police v. Washington Metropolitan Area Transit Auth. -- Fourth Circuit
Headline: Employers May Fire Employees Twice So Long as There Is New Justification

Area of Law:
Arbitration

Issue Presented:
Whether firing two police officers, reinstating them pursuant to an arbitration award, and then terminating them again for a different reason was a violation of the arbitration award.

Brief Summary: In 2011, the Washington Metropolitan Area Transit Authority ("WMATA") fired two of its police officers for misconduct. WMATA's collective bargaining agreement establishes a grievance procedure for resolving labor disputes, which are ultimately decided by the Board of Arbitration. The Fraternal Order of Police ("FOP") filed grievances for both officers. The cases reached arbitration where the Board decided that although WMATA had legitimate grounds for disciplining the officers, a lengthy suspension was more appropriate. The Board ordered WMATA to reinstate the officers. WMATA did as instructed. However, because of their initial termination, both officers had lost their Maryland law enforcement officer certification. This certification was required of all WMATA officers. The two officers were therefore disqualified to serve as WMATA police officers until they were recertified. WMATA placed the officers on paid administrative leave while they sought their recertification. Maryland declined to recertify the officers, in part due to a scathing WMATA report. WMATA then fired the officers again - this time for failing to regain certification. The FOP filed suit alleging that by terminating the officers a second time WMATA failed to adhere to the arbitration award in violation of the collective bargaining agreement. The District Court granted the FOP's motion for summary judgment. WMATA appealed to the United States Court of Appeals for the Fourth Circuit.

On appeal, WMATA argued that it abided by the arbitration award when it re-hired the officers and placed them on administrative leave pending their application for recertification. WMATA argued that the FOP, thus, could not use the arbitration award as a basis for challenging the second termination. Whether an employee has any recourse after he has been terminated, ordered reinstated by an arbitrator, and then terminated again for an independent reason was an issue of first impression in the Fourth Circuit. The Fourth Circuit agreed with two other circuits that "arbitration awards do not prevent an employer from taking future disciplinary action when confronted with new facts." The court found that Maryland's denial of certification provided a new, independent basis for termination - one that the Board of Arbitration had not considered when issuing its award. Therefore, the award was irrelevant to the second termination. Accordingly the Fourth Circuit reversed the district court's grant of summary judgment for the FOP.

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

Panel: Chief Judge Traxler, Judges Niemeyer and Motz

Argument Date: 01/29/2015

Date of Issued Opinion: 03/10/15

Docket Number:
No. 14-1332

Decided: Reversed by published opinion.

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

Counsel: ARGUED: Gerard J. Stief, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Washington, D.C., for Appellant. Jonathan G. Axelrod, BEINS, AXELROD, P.C., Washington, D.C., for Appellee. ON BRIEF: Robert G. Ames, Maggie T. Grace, VENABLE LLP, Washington, D.C.; Kathryn Pett, General Counsel, Janice L. Cole, Chief Counsel, Metro Transit Police, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Washington, D.C., for Appellant. Justin P. Keating, BEINS, AXELROD, P.C., Washington, D.C., for Appellee.

Author of Opinion: Judge Motz

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 10:28 AM     4th Circuit     Comments (0)  

  United States v. Price -- Fourth Circuit
Headline: What Do Words Have To Do With It? Circumstance-Specific Analysis and Sentencing under the Sex Offender Registration and Notification Act

Area of Law: Criminal Law, Statutory Interpretation

Issues Presented: (1) Whether the district court erred when it applied a circumstance-specific approach in determining whether a prior conviction is a sex offense under SORNA; and (2) whether failing to register as a sex offender is a sex offense under the Sentencing Guidelines.

Brief Summary: In 2010, Antwain Guanterio Price was convicted of committing assault and aggravated battery against his twelve year-old stepdaughter in South Carolina. Price served time and agreed to register with South Carolina's central child abuse and sex offender registry. After his release, Price moved to Ohio and failed to register as a sex offender, so the City of Akron issued a warrant for his arrest. In 2012, Price moved back to South Carolina and was arrested based on the Ohio warrant. Due to his prior conviction, he was indicted for knowingly failing to register as a sex offender, as required by the Sex Offender Registration and Notification Act ("SORNA"). Price sought dismissal of the indictment arguing that his prior conviction was not a sex offense under SORNA. After conducting a circumstance-specific review of the facts underlying his prior conviction, the district court denied his motion and held he was subject to SORNA's registration requirement. Price pleaded guilty and was sentenced to two years in prison and a life term of supervised release. However, Price appealed his sentence claiming the district court should have dismissed his indictment. Price also alleged the court miscalculated the term of his supervised release. The United States Court of the Appeals for the Fourth Circuit affirmed the district court's denial of the dismissal motion, but vacated the supervised release determination.

The Fourth Circuit affirmed the district court's denial of Price's dismissal motion after reviewing three analytical frameworks defining the scope of materials that may be reviewed when determining whether an underlying offense satisfies a statutory definition. The court concluded that the district court correctly applied the circumstance-specific approach because SORNA's purpose is to protect the general public and the statute's language refers to specific circumstances or conduct, which suggests that Congress intended for reviewing courts to utilize a more searching factual inquiry concerning a prior offense. Furthermore, the court acknowledged that although the Sixth Amendment compels courts to apply a much narrower, element-based "categorical" approach, the court concluded that it did not apply in this case because Price gave up his Sixth Amendment right when he pleaded guilty.

The court, however, vacated the supervised release determination based on its recent decision in United States v. Collins and the Seventh Circuit's decision in United States v. Goodwin. According to the court, Collins recognized a clarifying amendment to the Guidelines that makes clear that failing to register as a sex offender under SORNA is not a "sex offense." Under Goodwin, the Seventh Circuit issued a second clarifying amendment establishing that where the statutory minimum term of supervised release is greater than the Guidelines, the Guidelines creates a "single point" at the statutory minimum. As a result, the court concluded the Guidelines recommend that Price receive a five-year term of supervised release rather than a life term. Therefore, the court determined the district court's calculation of Price's supervised release was plain error and remanded for resentencing.

To read the full opinion, please click here.

Panel: Judges King and Motz, and Arenda L. Wright Allen, United States District Judge (E.D. Va.), sitting by designation

Argument Date: 12/09/2014

Date of Issued Opinion: 02/03/2015

Docket Number: No. 13-4216

Decided:
Affirmed in Part; vacated in Part; remanded by published opinion
Case Alert Author: Jamie Lee, Univ. of Maryland Carey School of Law

Counsel: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Tommie DeWayne Pearson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Bradley Nelson Garcia, O'MELVENY & MYERS, LLP, Washington, D.C., as Court-Assigned Amicus Counsel. ON BRIEF: John H. Hare, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Gregory F. Jacob, Rakesh Kilaru, O'MELVENY & MYERS, LLP, Washington, D.C., for Court-Assigned Amicus Counsel

Author of Opinion: Judge King

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 10:23 AM     4th Circuit     Comments (0)  

  Lord & Taylor v. White Flint -- Fourth Circuit
Headline: Death of the Suburban Shopping Mall: Largely Vacant White Flint Mall Can Be Demolished for Town Center Redevelopment in Violation of Agreement with Lord & Taylor

Area of Law:
Contract Law, Injunctive Relief

Issue Presented: Whether the district court erred when it denied Lord & Taylor's request for a permanent injunction that would prohibit White Flint from replacing the existing mall with a town center.

Brief Summary:
All across the country, more than two dozen shopping malls have closed and another 60 are on the brink of elimination. The "death of the suburban shopping mall" is attributed to increased consumer preference for online shopping and upscale town centers in place of traditional malls with anchor retailers, such as Macy's or Lord & Taylor. White Flint Mall was no exception.

For many years, Lord & Taylor operated an anchor retail store in the White Flint Shopping Center (the "Mall"). In October 2012, the Montgomery County Council approved plans to tear down the Mall and redevelop the site into a mixed-use, town-center-style development as part of a revitalization plan for the area. Lord & Taylor filed a complaint seeking a permanent injunction that would prohibit White Flint from replacing the Mall with the proposed town center, arguing that White Flint had violated the terms of its Reciprocal Easement Agreement ("REA"), which obligated White Flint to continually operate a "first class high fashion regional shopping center." The district court denied the preliminary injunction explaining that maintaining the Mall was no longer feasible, given the advanced stages of the project and the reality that the Mall is almost completely vacant and partially demolished. Lord & Taylor appealed, claiming the district court erred: (1) by applying federal law instead of Maryland law, which strongly favors injunctive relief for breaches of restrictive covenants and (2) because injunctive relief is entirely feasible.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision. According to the court, the district court expressly clarified that it applied Maryland law and the Fourth Circuit concluded that under Maryland law, injunctive relief is not automatic. Rather, the law makes "perfectly clear that trial courts may take account of feasibility concerns." The court also determined that injunctive relief was not feasible because it would either require the court to supervise the repopulation and restoration of the largely vacant Mall potentially for as long as 40 years or the effect of the order would be to suspend the site in its current unusable state.

To read the full opinion, please click here.

Panel: Judges Harris, Wilkinson, and Agee

Argument Date:
01/28/2015

Date of Issued Opinion: 03/04/2015

Docket Number: No. 13-2548

Decided: Affirmed by published opinion

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

Counsel:
ARGUED: Michelle DeFinnis Gambino, GREENBERG TRAURIG LLP, McLean, Virginia, for Appellant. Stuart Scott Morrison, KATTEN MUCHIN ROSENMAN LLP, Washington, D.C., for Appellee. ON BRIEF: Kevin B. Bedell, David G. Barger, GREENBERG TRAURIG LLP, McLean, Virginia, for Appellant

Author of Opinion:
Judge Harris

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 10:15 AM     4th Circuit     Comments (0)  

  Consolidation Coal v. Georgia Power -- Fourth Circuit
Headline: CERCLA Liability for 400,000 Tons of Contaminated Soil Requires More than Eventual Contamination

Area of Law: Environmental Law

Issue Presented: Whether the district court erred in granting summary judgment in favor of a utility supplier by denying arranger liability under CERCLA for the sale of a product that led to severe environmental contamination.

Brief Summary: In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") in response to the environmental and health risks posed by industrial pollution. The Act was designed to promote timely cleanup of hazardous waste sites and to ensure that cleanup costs were borne by those responsible for the contamination. Therefore, CERCLA imposes liability upon various potentially responsible parties, including those persons who arrange for the disposal or treatment of hazardous substances ("arranger liability").

In the early 1980s, Georgia Power Company ("Georgia Power") and Savannah Electric and Power Company (who later merged with Georgia Power), sold many of their used electrical transformers to Ward Transformer Company ("Ward") and Electric Equipment Company of New York. These transformers contained insulating oil and polychlorinated biphenyls ("PCBs"), which are toxic carcinogens that have been banned since 1979. Ward rebuilt and reconditioned some of these transformers at a site in Raleigh, North Carolina, resulting in 400,000 tons of contaminated soil. As a part of an administrative settlement with the EPA, PCS Phosphate Company and Consolidation Coal Company ("Appellants") have each paid more than $17 million in cleanup costs. Appellants filed a CERCLA complaint against Georgia Power, claiming Georgia Power intended to dispose of the PCBs when it sold the transformers to Ward and thus, should be subject to arranger liability and responsible for a portion of the cleanup costs. The United States District Court for the Eastern District of North Carolina granted summary judgment in favor of Georgia Power. The district court found that Georgia Power did not have the necessary intent for arranger liability. On appeal Appellants argued that the district court improperly focused on the overall value of the used transformers and Ward's ability to profit from their resale.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision. An entity is subject to arranger liability under CERCLA if the entity enters into a transaction "for the sole purpose of discarding a used and no longer useful hazardous substance." However, between a clear "sole purpose" and the sale of a product with no knowledge of its future potential for contamination, courts must undergo a fact-intensive inquiry and look beyond the entity's own characterization of the transaction. The Fourth Circuit first found there was no genuine issue of material fact as to whether the Georgia Power intended to dispose of PCBs by selling the transformers. As the court explained, arranger liability requires more than "selling a product to a buyer who at some point down the line disposes of a hazardous substance that was within the product." Here, the record did not contain any evidence of "intentional steps" on the part of Georgia Power to dispose of the hazardous waste. The evidence that was introduced, the court concluded, supported a reasonable motive of Georgia Power: to recover revenue. There was no evidence that the contamination took place in conjunction with the sale of the transformers, and Appellants acknowledged that the transformers were not leaking at the time of the sale. Therefore, absent any direct or circumstantial evidence indicating Georgia Power intended to dispose of PCBs when they sold the transformers, the Fourth Circuit affirmed the entry of summary judgment.

In dissent, Judge Wynn found that intent giving rise to arranger liability is generally a question for the finder of fact. He further stated that a reasonable fact finder could decide that Georgia Power intended, at least in part, to dispose of hazardous waste when it sold its "used, broken, and obsolete transformers laden with carcinogen-ridden oil" to Ward. This analysis of Georgia Powers' state of mind, concluded Judge Wynn, is rarely appropriate for summary judgment.

To read the full opinion, please click here.

Panel: Judges Shedd, Agee, and Wynn

Argument Date:
10/30/2014

Date of Issued Opinion:
3/20/2015

Docket Number:
No. 13-1603

Decided: Affirmed by published opinion

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

Counsel: ARGUED: Daniel M. Darragh, COHEN & GRIGSBY, P.C., Pittsburgh, Pennsylvania; Michael Howard Ginsberg, JONES DAY, Pittsburgh, Pennsylvania, for Appellants. Daniel S. Reinhardt, TROUTMAN SANDERS LLP, Atlanta, Georgia, for Appellee. ON BRIEF: Julie W. Vanneman, COHEN & GRIGSBY, P.C., Pittsburgh, Pennsylvania, for Appellant Consolidation Coal Company. Brian J. Murray, Chicago, Illinois, Mary Beth Deemer, JONES DAY, Pittsburgh, Pennsylvania, for Appellant PCS Phosphate Company, Incorporated. Hollister A. Hill, Jaime L. Theriot, Atlanta, Georgia, Whitney S. Waldenberg, TROUTMAN SANDERS LLP, Raleigh, North Carolina, for Appellee.

Author of Opinion: Judge Agee; Judge Wynn, dissenting

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 10:10 AM     4th Circuit     Comments (0)  

  United States v. Helton -- Fourth Circuit
Headline: Measured Humanity in Sentencing: Fourth Circuit Praises District Court's Downward Departure from Sentencing Guidelines for Child Pornography Possessor

Areas of Law: Criminal Law; Sentencing Guidelines

Issue Presented: Whether, considering the sensitive facts of this case, a lifetime term of supervised release was procedurally and substantively reasonable for a possession of child pornography conviction.

Brief Summary: In 2010, a member of the West Virginia Internet Crimes Against Children Task Force, determined a computer near Buckley, West Virginia contained several videos of child pornography. With assistance from the FBI, the task force identified the subscriber's IP address and executed a search warrant on Barbie Helton's residence, which she shared with her nineteen-year-old son Stephen. Several files containing child pornography were found on Stephen Helton's personal computer. Helton was taken into custody and advised of his rights before making a statement to law enforcement. He explained that he regularly viewed adult and child pornography, which was confirmed when forensic investigators found a total of 961 individual images of child pornography; only 42 were actively accessible for viewing at the time of the search. Helton pled guilty to one count of "knowing possession of child pornography" and proceeded to sentencing. The Presentence Investigation Report recommended a Guidelines range of 78 to 97 months imprisonment based on the total offense level of 28. After listening to argument and the defendant's own statement, the district court sentenced Helton to a term of 60 months imprisonment, a significant downward departure from the Guidelines range, and a lifetime term of supervised release. The district judge made clear that when considering sentencing, the length of the prison term and length of the supervised released were linked; she was only comfortable with the downward sentencing departure because she knew the defendant would be subjected to lifetime supervised release. Helton appealed, arguing the term of lifetime supervised release imposed in his case was unreasonable.

The Unites Stated Court of Appeals for the Fourth Circuit affirmed and lauded the district court's sentencing determination. The appellate court reviews a district court's sentencing determination for reasonableness, which includes both substantive and procedural components. The court noted that the scope of sentencing discretion is broad and is largely unlimited in terms of the types and sources of information considered. In this case, the district judge weighed Helton's lengthy history of viewing child pornography, his admittedly repetitive pattern of downloading material, deleting it and seeking more. The sentencing court also considered the fact the defendant admitted to being physically and sexually abused; admitted to sexually abusing a three-year-old child while he was thirteen-years old and in foster care; and unsuccessfully sought help for his compulsion. Finally, the facts that the defendant suffered from drug and alcohol abuse and had no prior criminal record were also noted.

In a separate concurring opinion, Judge Gregory commended the district court's exercise of discretion but criticized the Child Pornography Sentencing guideline. Judge Gregory noted, "we measure humanity by the justice we mete to those thought least deserving." He pointed out that the Child Pornography Guideline was fashioned by Congress, and not by the Sentencing Commission using its expertise and discretion. In fact, the Sentencing Commission has repeatedly asked for authority to change the guideline, because over time, it has become an "eccentric Guideline . . . which, unless carefully applied, can easily generate unreasonable results." The provided enhancements do very little to distinguish between offenders, thereby sentencing less culpable offenders as severely as the most egregious offenders. Judge Gregory cautioned that in light of those facts, the Child Pornography Guideline should not serve as a starting point for determining a reasonable sentence. Although he disapproved of Helton's lifetime supervision, Judge Gregory did state that the district judge in this matter did an admirable job when crafting Helton's individualized sentence.

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

Panel: Judges Wilkinson, Gregory and Duncan

Argument Date: 12/11/2014

Date of Issued Opinion: 04/2/2015

Docket Number: No. 13-4412

Decided: Affirmed by published opinion.

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

Counsel:
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Lisa Grimes Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, William B. King, II, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Author of Opinion: Judge Wilkinson; Judge Gregory wrote a separate concurring opinion.

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 10:01 AM     4th Circuit     Comments (0)  

  Kane v. Lewis -- Fourth Circuit
Headline: Fourth Circuit Knocks Out Wrongful Death Verdict Even After Police Officers Who Failed to "Knock-and-Announce" Kill Suspect

Areas of Law: Tort, Constitutional (4th Amendment)

Issue Presented: Whether police officers were responsible for shooting and killing a drug raid suspect when they failed to knock-and-announce their presence.

Brief Summary: On May 6, 2005, two SWAT teams executed a search warrant in Cambridge, Maryland. One minute later, Andrew Cornish was dead.

Police officers were investigating an anonymous tip of drug activity at 408 High Street in Cambridge, Maryland. As part of their investigation, police inspected trash bags in front of the residence and found trace amounts of marijuana and associated drug paraphernalia; officers then obtained a search warrant. Police officers who executed the search maintained they knocked and announced their presence twice before breaking down the door; however, neighbors stated they never heard the police knock or announce.

Once police were inside the home, they stated they yelled "Cambridge Police, search warrant." Officers attempted to kick in the door to the master bedroom, but failed. A moment later Andrew Cornish opened the door and came charging out, brandishing a knife. When he was three feet from Detective Lewis, the detective fired two shots, killing Cornish. Officers recovered the 15-inch knife, still in its sheath, and found two bags of marijuana on Cornish's person.

Cornish's father, Andrew Kane, sued on behalf of his son's estate alleging that police officers used excessive force and failed to knock-and-announce in violation of Cornish's constitutional rights. The jury found that Detective Lewis did not use excessive force in killing Cornish but that officers did fail to knock-and-announce; violating Cornish's constitutional rights. The jury awarded nominal damages and $250,000 in non-economic damages to Cornish's estate.

The officers appealed to the United States Court of Appeals for the Fourth Circuit, arguing that the noneconomic damages were inappropriate because Cornish's conduct was a superseding cause of his own death. In response, Kane argued that the jury had sufficient evidence to conclude that the absence of a knock and announcement made it reasonably foreseeable that a surprised Cornish would take self-defense action not knowing it was police officers who had entered his home.

The Fourth Circuit held that no reasonable jury could have found that the officers' knock-and-announce violation proximately caused Cornish's death. The court vacated the award of $250,000 in noneconomic damages and held that only nominal damages were appropriate for the knock-and-announce constitutional violation. The court found the evidence at trial was insufficient to establish that Cornish did not recognize the men as police officers, when the officers were wearing SWAT gear and shouting their identities. The court also held that Cornish must have known the men were police officers, and therefore, the illegal entry was not what caused Cornish's death. The court finally held the officers were not protected by qualified immunity for the knock-and-announce violation.

Judge Pamela Harris dissented. She agreed that a superseding cause would break the causal link between the knock-and-announce violation and Cornish's death. She also found that if Cornish knew the men were police officers and he attacked them, his conduct would be a superseding cause and the officers would have no liability for his death. However, Judge Harris found ample evidence from which a jury could conclude Cornish never realized that the men in his apartment were police. In Judge Harris' view, the facts demonstrated that Cornish had no reason to know the police were coming into his apartment at 4:30 in the morning; that the situation was so quick and confusing that Cornish never had an opportunity to identify the men as police; and that at trial the jury found the officers' testimony to be unreliable. This situation, Judge Harris wrote, "is exactly what the knock-and-announce rule is intended to prevent." Judge Harris would have affirmed the verdict of the trial court.

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

Panel: Judges Duncan, Agee and Harris

Argument Date: 12/10/2014

Date of Issued Opinion:
03/13/2015

Docket Number:
Case No. 14-1027

Decided: Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Harris filed an opinion concurring in part, and dissenting in part.

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

Counsel: ARGUED: Victoria M. Shearer, KARPINSKI, COLARESI & KARP, P.A., Baltimore, Maryland, for Appellants. Terrell Roberts, ROBERTS & WOOD, Riverdale, Maryland, for Appellee. ON BRIEF: Daniel Karp,KARPINSKI, COLARESI & KARP, P.A., Baltimore, Maryland, for Appellants.

Author of Opinion:
Judge Duncan.

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 09:51 AM     4th Circuit     Comments (0)  

  Georgia-Pacific v. Von Drehle Corp. -- Fourth Circuit
Headline: Paper Towel Manufacturer Georgia-Pacific Absorbs Another Setback

Area of Law: Trademark Infringement

Issues Presented: (1) Whether a permanent, nationwide injunction was unduly broad given conflicting rulings in other circuits; (2) Whether the district court applied the wrong legal standard for trebling the jury award and for awarding attorneys fees and pre-judgment interest.

Extended Summary: Georgia-Pacific Consumer Products LP ("Georgia-Pacific") owns the trademark "enMotion" and uses it to brand paper towel dispensers designed to dispense only paper towels manufactured by Georgia-Pacific. Von Drehle, a competitor company, designed a less expensive paper towel called 810-B and sold it specifically for use in Georgia-Pacific's enMotion towel dispensers. In response, Georgia-Pacific commenced three separate actions in separate jurisdictions against von Drehle and von Drehle distributors Meyers Supply and Four-U-Packaging. The Georgia Pacific suit alleged that putting 810-B paper towels into Georgia-Pacific towel dispensers constituted contributory trademark infringement of Georgia-Pacific's enMotion trademark in violation of the Lanham Act.

In Georgia-Pacific's case against Meyers Supply, the Western District of Arkansas ruled against Georgia-Pacific finding no trademark infringement. Specifically, the court reasoned that the trademark on a dispenser did not create a likelihood of confusion as to the source of the paper towels inside. The Eighth Circuit affirmed.

In a parallel action against Four-U-Packaging in the Northern District of Ohio, the district court held the Arkansas judgment precluded Georgia-Pacific from re-litigating its trademark infringement claim. The Sixth Circuit affirmed.

Similarly, in Georgia-Pacific's case against von Drehle in the Eastern District of North Carolina, von Drehle filed a motion seeking judgment as a matter of law due to the Arkansas court's decision rejecting Georgia-Pacific's trademark infringement claims. Unlike in Ohio, however, the district court denied the motion finding von Drehle had inordinately delayed raising its preclusion argument. Trial ensued, and a jury awarded Georgia-Pacific $791,431 - 100% of the profits von Drehle made from trading on the enMotion trademark between 2005-2011.

Following trial, von Drehle renewed its motion for judgment as a matter of law based on claim and issue preclusion. The district court granted the motion, entering judgment for von Drehle and vacating the jury verdict. The United States Court of Appeals for the Fourth Circuit reversed, finding von Drehle waived its preclusion defense and remanded the case to the district court with instructions to reinstate the jury verdict and consider the other forms of relief requested by Georgia-Pacific. On remand, the district court entered a permanent, nationwide injunction prohibiting von Drehle from directly or indirectly infringing on Georgia-Pacific's trademark rights. In addition, the district court found von Drehle's infringement was willful and intentional, so the court (1) trebled the jury's award from $791,431 to $2,374,293; (2) awarded Georgia-Pacific attorneys' fees in the amount of $2,225,782; and (3) awarded prejudgment interest in the amount of $204,450. Finally, the court awarded Georgia-Pacific $82,758 in court costs. The total award was just shy of five million dollars.

Von Drehle responded with this appeal, challenging the geographic scope of the injunction and each monetary award except court costs. On appeal, the Fourth Circuit found the district court's injunction could not prohibit the use of 810-B paper towels in Georgia-Pacific dispensers in the Eighth and Sixth Circuits as a matter of comity, and that the injunction should not extend to the remaining circuits because those circuits should be free to resolve the trademark infringement question. The Fourth Circuit vacated the district court's injunction and remanded with instructions to limit the injunction to the Fourth Circuit only.

The Fourth Circuit also remanded each of the district court's monetary awards except court costs. First, the Fourth Circuit reversed the district court's treble damage award, finding the district court applied the wrong standard. On remand, the court directed the district court to enter judgment in the amount awarded by the jury, $791,431, unless it deemed the jury's award to be "inadequate or excessive" under § 1117(a) of the Lanham Act. Second, as to attorneys fees, the Fourth Circuit remanded to the district court with instructions to consider the recently decided Supreme Court case Octane Fitness, LLC v. ICON Health & Fitness, which interpreted a standard similar to that in the Lanham Act for awarding reasonable attorney fees to prevailing parties in "exceptional cases." Finally, the Fourth Circuit reversed the district court's award of prejudgment interest, finding § 1117(a) of the Lanham Act made no specific provision for prejudgment interest in cases involving a recovery of a defendant's profits. The court did not foreclose an award of prejudgment interest under § 1117(a), but instead held that because Georgia-Pacific did not undertake to prove its own damages, the award of prejudgment interest could not stand.

In a separate opinion, concurring in part and dissenting in part, Judge Shedd found the district court did not abuse its broad equitable discretion by entering a nationwide injunction. He explained that the majority opinion misapplied the discretionary doctrine of comity, failed to accord proper respect to the Fourth Circuit's 2013 opinion in this case, and ran counter to a fundamental purpose of the Lanham Act "to provide national protection for trademarks used in interstate and foreign commerce." In addition, because von Drehle is a North Carolina Corporation, Judge Shedd noted that unless von Drehle moved its manufacturing operations elsewhere, manufacturing paper towels in the Fourth Circuit would violate the majority's limited injunction even if the paper towels were not being distributed within the Fourth Circuit.

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


Panel: Judges Niemeyer, Shedd, and Keenan

Argument Date: 12/11/2014

Date of Issued Opinion: 03/30/2015

Docket Number: No. 13-2003

Decided: Vacated, reversed in part, and remanded in part, with instructions, by published opinion.

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

Counsel:
ARGUED: Carter Glasgow Phillips, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. Miguel A. Estrada, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellee. ON BRIEF: Michael P. Thomas, PATRICK HARPER & DIXON, LLP, Hickory, North Carolina; Richard Klingler, Jacqueline G. Cooper, Nicolas W. Thompson, John Paul Schnapper-Casteras, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. Stephen P. Demm, John Gary Maynard, III, HUNTON & WILLIAMS LLP, Richmond, Virginia; Jonathan C. Bond, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C.; W. Kyle Carpenter, WOOLF, MCCLANE, BRIGHT, ALLEN & CARPENTER, PLLC, Knoxville, Tennessee, for Appellee.

Author of Opinion: Judge Niemeyer

Separate Opinion, Concurring in Part and Dissenting in Part: Judge Shedd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 09:36 AM     4th Circuit     Comments (0)  

  Zak v. Chelsea Therapeutics Intl. Ltd. -- Fourth Circuit
Headline: Worst Kept Secret -- Fourth Circuit Finds Drug Company's Failure to Disclose Information to Investors Demonstrated Intent to Defraud at Pleadings Stage of Lawsuit

Areas of Law: Civil Procedure, Securities Fraud

Issues Presented: Whether investors adequately demonstrated in heightened pleadings stage of securities fraud lawsuit that company intended to defraud them by making misleading and incomplete statements.

Brief Summary: Chelsea Therapeutics is the manufacturer of Northera, a drug treatment for symptomatic neurogenic orthostatic hypotension. Before submitting its initial "new drug application" to the Food and Drug Administration (FDA), Chelsea conducted numerous clinical trials to demonstrate Nothera's efficacy and safety. Unfortunately, all but one study found the drug to be unsafe or ineffective. In a meeting with FDA officials, the FDA warned Chelsea that a single successful study typically was not sufficient to support approval of a new drug. Despite this, Chelsea announced to its investors that the FDA "agreed" that Chelsea could submit its new drug application based upon existing data and "that additional efficacy studies were not required." After submitting its new drug application, Chelsea released numerous press releases to investors that mentioned the FDA's concerns, but failed to disclose that the FDA recommended voting against the drug's approval. Ultimately, the FDA denied Northera's application. In response, plaintiff investors filed suit asserting that Chelsea and several of its corporate officers violated Section 10(b) of the Securities Exchange Act by making materially misleading statements and omissions about Northera's development and the FDA's pending approval. The district court granted the defendants' motion to dismiss, holding that the plaintiffs' allegations were insufficient to meet the heightened pleading standard of the Private Securities Litigation Reform Act and failed to establish the defendants acted with the required scienter, or "intent to deceive, manipulate, or defraud."

On appeal, the United States Court of Appeals for the Fourth Circuit held the plaintiffs pleaded sufficient facts. The court therefore vacated the district court's judgment and remanded for further proceedings. Specifically, the Fourth Circuit held that the district court erred in considering documents allegedly indicating that no Chelsea officer sold stock while Northera's application was pending because the documents failed to establish such fact and because they did not relate to the contents of the complaint. According to the court, consideration of extrinsic documents is permitted only when the documents are integral to and explicitly relied upon in the complaint. The Fourth Circuit also found that the district court's error was not harmless because the district court relied on these documents in finding that the plaintiffs' allegations of scienter were insufficient. The Fourth Circuit found that here, the plaintiffs met their pleading burden by demonstrating that the defendants knowingly or recklessly misled investors by failing to disclose material, non-public information known to the defendants and by making conflicting, incomplete public statements about the status of the application.

Judge Thacker dissented, arguing that plaintiffs needed to more clearly demonstrate Chelsea acted with the required scienter to survive the heightened pleading requirement. Plaintiffs failed to meet their burden here, in Judge Thacker's view, because there was evidence suggesting that Chelsea believed the FDA would be receptive to its application, and Chelsea consistently acknowledged obstacles in its path to approval during the review process.

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

Panel: Chief Judge Traxler, and Judges Keenan and Thacker

Argument Date: 12/10/2014

Date of Issued Opinion: 03/16/2015

Docket Number: No. 13-2370

Decided: Vacated and remanded by published opinion.

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

Counsel: ARGUED: Richard William Gonnello, FARUQI & FARUQI, LLP, New York, New York, for Appellant. Barry M. Kaplan, WILSON SONSINI GOODRICH & ROSATI, Seattle, Washington, for Appellees. ON BRIEF: Lee M. Whitman, Tobias S. Hampson, WYRICK ROBBINS YATES & PONTON LLP, Raleigh, North Carolina; Gregory L. Watts, Seattle, Washington, Ignacio E. Salceda, Cheryl W. Foung, WILSON SONSINI GOODRICH & ROASATI, Palo Alto, California, for Appellees Chelsea Therapeutics International, Ltd., Simon Pedder, and William D. Schwieterman.

Author of Opinion: Judge Keenan

Dissenting Opinion:
Judge Thacker

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 07:49 AM     4th Circuit     Comments (0)  

April 29, 2015
  Ege v. U.S. Dept. of Homeland Security
Headline: D.C. Circuit rejects pilot's challenge to TSA order barring him from flying to, from, or over the United States for want of Article III standing.

Area of Law: National Security

Issue(s) Presented: Whether Petitioner, a commercial pilot, may challenge a TSA order barring him from flying to, from, or over the United States.

Brief Summary: Petitioner, an Emirates Airlines pilot, sought review of a Transportation Security Administration (TSA) order barring him from flying to, from, or over the United States, which he took as evidence that he is on a "No-Fly List," a subset of the "Terrorist Screening Database" (TSDB).

After Petitioner experience unspecified travel problems in 2009, he sought remedy with the TSA and indicated his belief that he was on a "No-Fly List." On January 22, 2013, the TSA issued a final order upholding its initial order and indicating that Petitioner had the right to appeal to a U.S. Court of Appeals pursuant to 49 U.S.C. § 46110. Petitioner filed a timely appeal to the U.S. Court of Appeals for the District of Columbia Circuit, which ordered supplemental briefing on the question of its subject matter jurisdiction to adjudicate Petitioner's claim.

The D.C. Circuit concluded that Petitioner lacked Article III standing to bring the action. The court observed that 49 U.S.C. § 46110 gave it authority to entertain appeals only from orders of the TSA, DHS, and FAA. Because the TSA's order rested on Petitioner's presumed inclusion on the "No-Fly list," and the sole entity with power to remove individuals from the "No-Fly List" is the Terrorist Screening Center (TSC), not the TSA or DHS, the court found it lacked power to redress Petitioner's asserted injury. The court rejected Petitioner's and the TSA's argument that it could redress Petitioner's injury by ordering the TSA to permit Petitioner to board a plane because his ability actually to enter or fly over the United States would remain speculative so long as he remained on the TSC's lists.

Judge Kavanaugh concurred in the judgment. He believed that Petitioner had standing, having challenged the TSA's order prohibiting him from boarding the plane, rather than his underlying inclusion on the TSC's lists. However, Judge Kavanaugh concluded that Petitioner's challenge to the 2009 action was untimely.

The full text of the opinion may be found at http://www.cadc.uscourts.gov/i...le/13-1110-1549403.pdf

Panel: Henderson, Rogers, Kavanaugh

Argument Date: 9/19/2014

Date of Issued Opinion: 4/28/2015

Docket Number: 13-1110

Decided: Dismissed

Counsel: Charles A. Zdebski for Petitioner; Sharon Swingle, Stuart F. Delery, Ronald C. Machen, Jr., Mark B. Stern for Respondents.

Author of Opinion: Henderson

Concurrence: Kavanaugh

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/29/2015 11:13 AM     DC Circuit     Comments (0)  

April 24, 2015
  United States v. Huff - Tenth Circuit
Case Name: United States v. Huff -- Tenth Circuit

Headline: Tenth Circuit holds that district courts may reconsider motions to suppress evidence without requiring the government to justify why it failed to present evidence or raise a legal argument at the first hearing.

Areas of Law: Criminal Law

Issues Presented:

1. Can the district court reconsider a motion to suppress based on new evidence or a new legal argument advanced by the government without requiring the government to justify its failure to present it during the earlier motion hearing?

Brief Summary:

Kansas City, Kansas police offers arrested the appellant who was later indicted on counts of being a felon in possession of a firearm and possession of an unregistered, short-barreled rifle. The appellant moved to suppress evidence of the firearms found in his vehicle because the police lacked probable cause to arrest him. The district court granted the motion to suppress. The government then moved to reconsider, offering a new legal argument for why the appellant was arrested without justifying why it failed to raise those arguments in the initial suppression hearing. The district court granted the motion to reconsider and denied the appellant's motion to suppress. The appellant was later found guilty of being a felon in possession of a firearm. He appealed the district court's grant of the government's motion to reconsider.

The Tenth Circuit observed that the exclusionary rule does not automatically apply when the government fails to raise a legal argument during a suppression hearing, as prosecutorial oversight differs from the police misconduct that the exclusionary rule is designed to deter. It held that discretion lies with the district court to decide if the government must justify its earlier failure to raise a legal argument. The court affirmed the district court's decision to grant the motion to reconsider. It found that the police officers had probable cause to arrest the appellant and affirmed the district court's decision not to suppress evidence of the firearms.

Extended Summary:

In June 2011, two Kansas police officers initiated a traffic stop after observing a vehicle veer into another lane before correcting itself. While approaching the vehicle, one officer spotted a handgun beneath the driver's seat. The officers had the driver and passenger place their hands on the dash. An officer reached into the vehicle to remove the keys and noticed a rifle by the passenger seat. The officers had the two occupants exit the vehicle, handcuffed them, and placed them in the back of the patrol car.

The driver, Mr. Huff, was indicted on one count of being a felon in possession of a firearm and one count of possession of an unregistered, short-barreled rifle. Acting pro se, Mr. Huff moved to suppress any evidence of the two firearms found in his vehicle. The district court found that the officers had not asked Mr. Huff any questions about the firearms before arresting him, concluded that the officers had no evidence of any legal violation by Mr. Huff at the time of the arrest, and granted the motion to suppress. The government provided no evidence of probable cause for the arrest during the motion hearing.

Two days after the motion to suppress was granted, the government filed a motion to reconsider the suppression. It admitted that it failed to identify the statute Mr. Huff had violated during the initial hearing. The government argued that the arrest was actually based on Kansas City Municipal Ordinance § 22-177(a)(5), which prohibits the transporting of any firearm that is not unloaded and completely encased in a container. The district court granted the motion for reconsideration, found that the officers had probable cause to arrest Mr. Huff, and un-suppressed evidence of the firearm. Mr. Huff was later convicted of being a felon in possession of a firearm.

The Tenth Circuit reviewed the district court's decision to reconsider a prior ruling for abuse of discretion. The court explained that motions to reconsider should "not be used to revisit issues already addressed or advance arguments that could have been raised earlier", citing its earlier decision in United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014). The court noted that the government offered no excuse for failing to mention the Kansas City, Kansas ordinance during the initial suppression hearing even though it had ample opportunity to do so.

The court considered its Christy decision in the context of suppression hearings. It observed that, when the government seeks reconsideration based on a new legal argument, the Eleventh and the D.C. Circuits require the government to justify its failure to raise the argument during the initial hearing. However, the Second, Fifth, Seventh, and Ninth Circuits do not. The court observed that, in those circuits, "[a] defendant is entitled to have evidence suppressed only if it was obtained unconstitutionally. If matters appearing later indicated that no constitutional violation occurred, society's interest in admitting all relevant evidence militates strongly in favor of permitting reconsideration. . . . [A] criminal defendant acquires no personal right of redress in suppressed evidence because the rationale for suppressing unlawfully obtained evidence is to deter official misconduct, not to compensate criminal defendants for the violation." In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 196-97 (2d Cir. 2008).

The court also considered the Supreme Court's stated rationale for the existence of the exclusionary rule. In Herring v. United States, 555 U.S. 135 (2009), the Court explained that the exclusionary rule exists to deter police misconduct. That misconduct must be "sufficiently deliberate that exclusion can meaningfully deter it". The Tenth Circuit reasoned that the exclusionary rule was meant to deter police misconduct and not prosecutorial oversight and that it was inappropriate to apply it to the prosecutor's failure to raise legal arguments during the first suppression hearing. The court therefore held that discretion lies with the district court to decide if the government must justify its failure to raise legal arguments during an initial suppression hearing and that the district court did not abuse its discretion by not requiring the government to provide such justification.

The court then turned to the appellant's argument that the district court erred in denying his motion to suppress evidence after the motion to reconsider was granted. It reviewed this denial using a totality of the circumstances standard of review. The appellant argued that, regardless of the motion to reconsider, the police still lacked probable cause to arrest him and that the reason for his arrest given by the government after the motion to reconsider was mere pretext. He argued that the police officer did not intend to arrest him for violation of Kansas City Municipal Ordinance § 22-177(a)(5) because, at the motion to reconsider, the officer testified that he knew of the ordinance but did not testify that he arrested the appellant for a violation of that ordinance.

The court highlighted the Supreme Court's decision in Devenpeck v. Alford, 543 U.S. 146, 153 (2004), in which the Court held that the subjective state of mind of the officer during an arrest was irrelevant to the existence of probable cause. As per Whren v. United States, 517 U.S. 806, 814 (1996), the officers need only have specific factual knowledge to justify a search or arrest. They do not need to believe that a person has violated a specific ordinance or statute for there to be probable cause. The officers in this case clearly saw the uncased firearm in the appellant's car prior to removing the keys and arresting the appellant and his passenger. The court held that the initial search and subsequent arrest were both lawful. It affirmed the district court's ruling denying the appellant's motion to suppress.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3216.pdf

Panel: McHugh, McKay, Baldock

Date of Issued Opinion: April 14, 2015

Docket Number: No. 13-3216

Decided: Affirmed the ruling of the district court.

Counsel:
James L. Spies of the law office of James L. Spies, P.A., Kansas City, Kansas for Defendant - Appellant.

Barry R. Grissom, United States Attorney, and Terra D. Morehead, Assistant United States Attorney, District of Kansas, Kansas City, Kansas, for Plaintiff - Appellee.

Author: McKay

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 04/24/2015 05:23 PM     10th Circuit     Comments (0)  

April 22, 2015
  Roy Langbord v. United States Department of the Treasury, et al. - Third Circuit
Headline: Government required to return 1933 Double Eagle coins to putative owners because it failed to file a civil forfeiture complaint within 90 days of owners' seized asset claim.

Area of Law: Property, Civil Forfeiture

Issues Presented: Whether CAFRA required the Government to file a complaint for judicial forfeiture within 90 days of the filing of a seized asset claim?

Brief Summary: Putative owners of ten 1933 Double Eagle coins delivered the coins to the Government for purposes of authentication only, seeking an agreement with the Mint to to sell the coins at an auction, and divide the proceeds.
After the coins were authenticated, and the owners requested return of the coins, the Mint stated that it had no intention of seeking forfeiture because the coins were property of the United States. The Mint asserted that the coins had been smuggled out of the Mint. The owners submitted a seized asset claim and demanded return of the coins or filing of a civil forfeiture proceeding. The Third Circuit reversed the District Court denial of the owners' request for summary judgment, holding that the Government was required to have either returned the coins or filed a civil forfeiture proceeding within 90 days of the owners' seized asset claim. The Court vacated all orders that followed that denial, including a jury verdict and subsequent declaratory judgment in favor of the Government, and ordered the Government to return the coins to the owners.

Extended Summary: This case concerns ownership of 10 Double Eagle gold coins minted in 1933 and discovered by the putative owners, the Langbords, in 2002 in a safe that belonged to Joan Langbord's late father. Few of the original Double Eagle coins were ever legally released into circulation due to a 1933 Executive Order removing them from circulation and forbidding the Mint from releasing them. The Government suspected that Langbord's father had smuggled the coins out of the Mint but that was never proved in his lifetime. After the Langbords' discovery, the family tried to reach an agreement with the Mint to sell the coins and split the profits of the sale. They gave the coins to the Mint solely to authenticate them. However, once the coins were authenticated, the Mint refused to return them or to seek forfeiture under the Civil Asset Forfeiture Reform Act (CAFRA), asserting that forfeiture was unnecessary because the coins had always been the property of the United States.

The Langbords then filed a "seized asset claim," demanding that the Government return the coins or file a forfeiture proceeding. The Government refused to take either step and the Langbords sued, claiming violations of the Administrative Procedure Act and CAFRA, which requires the Government to either return the property or file a forfeiture proceeding within 90 days of a seized asset claim. The District Court denied the Langbords' motion for summary judgment on the CAFRA claim, holding that the 90 day deadline did not apply because there had been no non-judicial forfeiture because the Government never sent notice to the Langbords that would institute a forfeiture proceeding. However, it also found that the Government had violated the Langbords' Fourth and Fifth Amendment rights by seizing the coins in contravention of the original agreement. It allowed the Government to file a civil forfeiture complaint which resulted in a jury verdict in favor of the Government. The District Court then granted the Government's request for declaratory relief, holding that the coins were property of the Government because they were not lawfully removed from the Mint.

The Third Circuit reversed the District Court's denial of the Langbords' Motion for Summary Judgment. It held that CAFRA required the Government to return the property or to file a forfeiture proceeding within 90 days of the Langbords' seized asset claim. Because the Government did neither, it was required to return the coins to the Langbords. The Third Circuit analyzed the text of CAFRA and found it applies to property that is claimed to have been stolen or embezzled. The Government did not appeal the District Court's ruling that the Government's seizure of the coins was unconstitutional.

The Third Circuit rejected the Government's argument that it could preclude the running of the 90 day period by stating to the property owner that it was not seeking forfeiture, as it did here. The Court held that interpretation was inconsistent with the language of CAFRA which triggers the 90 day deadline once the property owner files a seized asset claim. It further held that the good cause exception allowing an extension of time applies only if the Government seeks the extension before the 90 days expires.

The Third Circuit vacated all orders that followed the denial of the summary judgment motion, including the entry of the jury verdict in favor of the Government, and ordered that the coins be returned to the Langbords. It further reversed the District Court's declaratory judgment in favor of the Government which declared that the coins were and remained the property of the Government. The Third Circuit held that the Government could not use the declaratory judgment process to circumvent the 90 deadline and that declaratory judgment was not available because of the special statutory procedures required under CAFRA.

Judge Sloviter dissented on the grounds that the Government's failure to comply with the 90 day deadline did not require return of the coins. Judge Sloviter noted that the Langbords had the opportunity to participate in a 10 day jury trial to determine whether forfeiture was appropriate, that the evidence at trial showed that the coins were stolen from the Mint, that Langbord's father was complicit in the theft, and that the Langbords knew that of the illegal acquisition and concealed it, thus justifying forfeiture. Judge Sloviter also disputed the majority's interpretation that the special procedures available under CAFRA precluded declaratory relief.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/124574p.pdf

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

Argument Date: November 19, 2014

Date of Issued Opinion: April 17, 2015

Docket Number: No. 12-4574

Decided: Vacated and remanded

Case Alert Author: Joe Mathew

Counsel: Barry H. Berke, Esq., Eric A. Tirschwell, Esq., Kevin J. Kotch, Esq., and Walter M. Phillips, Jr., Esq., for the Appellants Roy Langbord, David Langbord, and Joan Langbord; and Jacqueline C. Romero, Esq., Nancy Rue, Esq., and Robert Zauzmer, Esq., for the Appellees United States Department of the Treasury, United States Bureau of the Mint, Secretary of the United States Department of the Treasury, Acting General Counsel of the United States Department of the Treasury, Director of the United States Mint, Chief Counsel United States Mint, Deputy Director of the United States Mint, John Doe Nos. 1 to 10 "John Doe" Being Fiction First and Last Names, and United states of America

Author of Opinion: Judge Rendell

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 04/22/2015 03:28 PM     3rd Circuit     Comments (0)  

  Lizette Vargas v. City of Philadelphia, et al. - Third Circuit
Headline: Officers acted reasonably when they blocked a car and ordered the occupants out in response to 911 call but had no initial knowledge the call was about a medical emergency.

Area of Law: Constitutional Law; Unlawful Seizures

Issues Presented: Whether officers responding to a 911 call, unaware initially that the call was regarding a medical emergency, unlawfully seized a mother and daughter in violation of their Fourth Amendment rights?

Brief Summary:
Lizette Vargas called 911 when her 15-year-old daughter, Tabitha, suffered a severe asthma attack. As she called 911, she placed her unconscious daughter in the backseat of a cousin's vehicle. When the officers responded to the call, they stopped the vehicle from moving, unaware of the medical emergency, and ordered Vargas and the driver out of the car. After seeing Tabitha and hearing ambulance sirens, the officers instructed Vargas to wait until paramedics arrived. The paramedics rushed Tabitha to the hospital, but she ultimately died from an anoxic brain injury. The Third Circuit affirmed the District Court's grant of summary judgment, holding that any seizure was reasonable because the officers were initially unaware of the medical emergency.

Extended Summary:
Lizette Vargas appealed the District Court's grant of summary judgment to the City on her constitutional and state-law claims of unlawful seizure, violation of her right to make decisions about the medical care of her daughter, and false imprisonment.
On August 19, 2009, Vargas called 911 after her 15-year-old daughter, Tabitha, began suffering from an asthma attack. Vargas and a relative both dialed 911, placing five separate, frantic calls within a few minutes. In response to a report of "a person screaming," the Police Communications Center dispatched police officers Keith White and Matthew Blaszczyk but neither officer was made aware that the call was regarding a medical emergency.

Vargas testified that Tabitha was in the backseat of her cousin's car while Vargas was in the front passenger seat. The cousin had pulled the car partly out of its parking spot when the police arrived, blocking the car. As an officer approached, Vargas banged on her door to let the officer know that she could not open her door, while the driver rolled down her window and told the officer that they had Tabitha in the car and had to leave immediately. The officer shouted at the driver to turn the engine off and get out of the car.

Vargas could not open her passenger-side door so she climbed over the center console and got out of the car through the driver-side door. Vargas testified that the police officer then pulled open one of the back doors, causing Tabitha to tumble partway out of the car and onto the ground. Vargas immediately attempted to move towards her daughter but was blocked by one of the officers.

Officers White and Blaszczyk testified that they did not block the when they pulled to a stop in front of the Vargas residence. They also claimed that Tabitha was already on the sidewalk upon their arrival. Officer White then heard the siren of an ambulance coming, so he recommended that they wait for the ambulance to arrive because he could see it coming down Fifth Street. Both officers testified that they did not prevent anyone from taking Tabitha to the hospital. The police dispatch records showed that just over a minute elapsed from the time the officers noted their arrival at the scene to the time the ambulance arrived.

The paramedics gave Tabitha emergency care at the scene and on the way to the hospital but she suffered brain death and died two weeks later on August 26, 2009. Tabitha arrived at the hospital about 20 minutes after the first 911 call.
Vargas sued the officers and the City, asserting that that the officers violated her and Tabitha's Fourteenth Amendment rights to be free from unlawful seizure and physical restraint and Vargas's right to seek medical care on Tabitha's behalf, in violation of 42 U.S.C. § 1983. Vargas also included claims against the City for failing to properly train the police, and state-law false imprisonment claims on her own behalf and for Tabitha.

The City moved for summary judgment, arguing that Vargas could not demonstrate a constitutional violation and, in the alternative, that the officers' conduct was shielded by qualified immunity. Vargas relied on an expert witness, who said that, had Vargas been able to take Tabitha to the hospital without interruption from the police, Tabitha would have arrived at the hospital 6 to 8 minutes earlier and that the delay prevented Tabitha from receiving life-saving medical care, causing her anoxic brain injury and leading to her death. The District Court granted summary judgment against Vargas on all of her claims, including granting judgment sua sponte on the false imprisonment claims. Vargas then appealed to the Third Circuit

The Third Circuit affirmed, holding that, even if there was a seizure, the undisputed facts showed that the officers' actions were reasonable. The Court found that the "community caretaking doctrine" of Cady v. Dombrowski, applicable where, as here, a person outside of a home was seized for a non-investigatory purpose to protect the community at large. The officers were unaware of the medical emergency, pulled up to a volatile situation with people screaming at them, and, once they realized Tabitha needed medical attention, they reasonably waited for the ambulance whose arrival was imminent. Even if the officers seized Vargas by ordering her out of the car and making her wait for the ambulance, the seizure was reasonable.

Third Circuit also rejected Vargas' argument that the officers violated her Fourteenth Amendment right to make medical decisions for Tabitha. The Court noted that the officers answered a 911 call noted simply as "person screaming," encountered a group of screaming, frantic adults and an unconscious child, and made everyone wait for the ambulance once they realized the nature of the emergency. The facts did not show deliberate indifference or an intent to harm, even if the police used vulgar language on their arrival. The Court also rejected Vargas' claim of that the police department failed to adequately train its police officers and adopt appropriate policies to prevent Fourth and Fourteenth Amendment violations, given no violation of those rights occurred. Finally, the Third Circuit found no error in the sua sponte dismissal of Vargas' false imprisonment claim; because the undisputed facts failed to show the necessary willful misconduct, any error in dismissing sua sponte was harmless.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/134590p.pdf

Panel (if known): Fisher, Jordan, and Greenaway, Jr., Circuit Judges

Argument Date: January 21, 2015

Date of Issued Opinion: April 17, 2015

Docket Number: No. 13-4590

Decided: Affirmed

Case Alert Author: Joe Mathew

Counsel: James E. Hockenberry, Esq., for the Appellant Lizette Vargas; and Jane L. Istvan, Esq., Mark Maguire, Esq., and Amanda C. Shoffel, Esq., for the Appellees City of Philadelphia, Police Officer Matthew Blaszczyk, Police Officer Keith White, and John Does 1-10

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 04/22/2015 11:33 AM     3rd Circuit     Comments (0)  

April 20, 2015
  Zelaya v. United States- 11th Circuit
Headline: Eleventh Circuit finds the discretionary function and the misrepresentation exceptions apply to the general waiver of sovereign immunity under the Federal Tort Claim Act ("FTCA").

Area of Law: Government; Torts

Issue: Whether the discretionary function or misrepresentation exceptions to the sovereign immunity doctrine apply where the United States Securities and Exchange Commission ("SEC"), having information of a possible Ponzi scheme, failed to take action that may have prevented future losses.

Brief Summary: Carlos Zelaya and George Glantz ("Plaintiffs") sought to hold the SEC liable under the FTCA, alleging the SEC had breached two statutory duties through its inaction. The district court granted the Government's motion to dismiss, finding the SEC had sovereign immunity and was shielded from liability for its alleged negligence. The Eleventh Circuit affirmed the dismissal of both claims, finding the misrepresentation and the discretionary function exceptions applied to the SEC's general waiver of sovereign immunity under the FTCA.

Extended Summary: Plaintiffs invested into an Antiguan based company, Stanford Bank Ltd., as well as a series of entities operated by the bank, which turned out to be one of the biggest Ponzi schemes in American history. Despite four different investigations, the SEC failed to take any action against Stanford. The Plaintiffs filed two claims against the SEC under the FTCA. First, Plaintiffs argued the SEC had acted negligently in failing to notify the Securities Investor Protection Corporation ("SIPC"), pursuant to 15 U.S.C. § 78eee(a)(1), that Stanford Bank was running a Ponzi scheme. Second, Plaintiffs argued the SEC failed to revoke the bank's registration according to 15 U.S.C. § 80b-3(c). The district court initially granted the Government's motion to dismiss the registration claim, finding the discretionary function exception applied, but denied the motion as to the notification claim. Plaintiffs filed an amended complaint alleging only the notification claim. The district court granted the Government's motion to dismiss the claim based on the misrepresentation exception.

The Eleventh Circuit affirmed, finding the two exceptions to the general waiver of sovereign immunity applied. As to the registration claim, the court initially noted the SEC was not required to revoke a bank's registration under 15 U.S.C. § 80b-3(c), because that provision applied to granting or denying, rather than revoking, registration. The court further explained even if a duty existed, the SEC had discretionary authority to pursue violations of securities law, therefore the discretionary function exception under 28 U.S.C. § 2680(a) would apply. As to the notification claim, the court held the misrepresentation exception under 28 U.S.C. § 2680(h) applied to both miscommunication and non-communication by the Government. The court noted in order to overcome the application of the misrepresentation exception, Plaintiffs were required to show the Government breached an additional duty, distinct from the duty not to make a misrepresentation. Since Plaintiffs could not point to any separate "operational" duty the SEC had breached, the Eleventh Circuit affirmed the district court's dismissal of the Plaintiff's notification claim.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201314780.pdf

Panel: Tjoflat, Julie Carnes, and Gilman (United States Circuit Judge for the Sixth Circuit, sitting by designation)

Argument: September 11, 2014

Date of Issued Opinion: March 30, 2015

Docket Number: 13-14780

Decided: Affirmed

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

Counsel: Gaytri Kachroo, et al. for Appellants
Steve Frank, et al. for Appellee, USA

Author of Opinion: Circuit Judge Julie Carnes

    Posted By: Gary Kravitz @ 04/20/2015 10:50 AM     11th Circuit     Comments (0)  

April 15, 2015
  United States v. Hollingsworth - Fifth Circuit
Headline: Fifth Circuit Rules that Defendants Tried for Petty Offenses Committed on Federal Enclaves Are Not Entitled to a Trial Before an Article III Judge.

Area of Law: Article III of the United States Constitution.

Issue Presented: Whether a defendant charged with a petty offense on a federal enclave acquired by Congress pursuant to Article I, Section 8, Clause 17 of the United States Constitution is entitled to a trial before an Article III judge.

Brief Summary: A federal magistrate judge tried David Hollingsworth for a petty offense committed on a federal enclave, namely a military base located in Louisiana. The magistrate judge conducted a bench trial, entered a verdict of guilty, and sentenced Hollingsworth to six months in federal prison. Hollingsworth objected to trial before the federal magistrate judge, but the magistrate judge held that she had jurisdiction to try Hollingsworth without his consent. Hollingsworth appealed to the U.S. District Court for the Eastern District of Louisiana, arguing that he had the right to a jury trial. The district court affirmed the judgment and sentence entered by the magistrate judge. Hollingsworth then appealed to the U.S. Court of Appeals for the Fifth Circuit, arguing that he had a constitutional right to trial before an Article III judge. The Fifth Circuit affirmed, holding that there is no right to trial before an Article III judge for a petty offense committed on a federal enclave. The court reasoned that Article I, Section 8, Clause 17 of the United States Constitution provides Congress with extensive regulatory authority over land acquired for federal use and that this authority permits Congress to endow magistrate judges with the power to try, at a minimum, petty offenses committed there.

Judge Higginbotham's concurrence noted the importance of the fact that a petty offense was at issue.

Judge Higginson's dissent focused on the incremental reassignment of federal judicial power away from Article III judges.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/13/13-31265-CR0.pdf.

Panel: Circuit Judges Higginbotham, Clement, and Higginson.

Argument Date: 12/2/2014

Date of Issued Opinion: 4/14/2015

Docket Number: No. 13-31265

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: John Rivera, U.S. Attorney's Office, for Plaintiff-Appellee United States; Jordan Mark Siverd, Federal Public Defender's Office for the Eastern District of Louisiana, for Defendant-Appellant Hollingsworth.

Author of Opinion: Judge Clement (Judge Higginbotham concurring and Judge Higginson dissenting)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 04/15/2015 09:31 PM     5th Circuit     Comments (0)  

  United States v. Paetsch - Tenth Circuit
Case Name: United States v. Christian Paetsch

Headline: Tenth Circuit Holds the Detaining of 29 people and 20 Cars Was Not an Unreasonable Search and Seizure When the Danger Posed by a Bank Robber Was High

Area of Law: Criminal Procedure, Fourth Amendment

Issue Presented: Is it a violation of the Fourth Amendment when police officers barricaded off 20 cars on a street after they tracked stolen money containing a GPS tracking device to the location?

Brief Summary:

Police officers tracked a bank robber to within a 60-foot radius utilizing a tracking device in the stolen money. The police officers barricaded off the area and stopped 20 cars. The 29 individuals in these cars were detained for 30 minutes while police waited for a homing beacon to arrive so that the money could be tracked at a decreased radius. Once the homing beacon arrived the Defendant was detained and the money was found in his car. The majority concluded that this was not a Fourth Amendment violation and utilized a three prong test from Brown v. Texas. The court weighed the gravity of public concern and the public interest against the interference with private liberty. The majority concluded that the public concern and public interest was significant while the interference with private liberty was limited. Therefore, there was no Fourth Amendment violation.

Extended Summary:

On June 2, 2012, the Defendant robbed a bank in Aurora, Colorado. The Defendant did not know that one of the stacks of money he was stealing contained a GPS tracking device. The tracker transmitted a signal to the Aurora Police Department which allowed them to follow the money to the general area of the Defendant. The tracking device could only be pinpointed to within a 60-foot diameter. Police officers blocked off an entire intersection, keeping 20 cars carrying 29 passengers immobilized in their vehicles.

The police officers then waited for an FBI agent to arrive on the scene with a homing beacon which would allow them to track the signal of the money to within 10 feet. Before the homing beacon arrived, officers removed two drivers, including the Defendant, from their vehicles because they were acting suspiciously. Both drivers were handcuffed and placed on a curb. One officer did a visual check from outside the Defendant's vehicle and saw a band used to wrap stacks of money.

At this point, police officers were able to use a properly calibrated homing beach to track the money to the Defendant's car. Inside they discovered the stolen money, two hand guns, two fake license plates, and the clothing used during the robbery.

The Defendant was convicted of armed robbery and a firearm charge. On appeal the Defendant argued that the procedure utilized by police officers during the stop was a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Specifically, the Defendant argued that the group seizure was not appropriately tailored. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). Further, the Defendant argued that the seizure failed the balancing test in Brown v. Texas, 443 U.S. 47 (1979), because it did not advance the public interest to a sufficient degree when weighed against its resulting interference with individual liberty.

The majority disagreed and reaffirmed the district court's ruling that this was not a Fourth Amendment violation.

The court began its analysis by conceding that a search and seizure without individualized suspicion is considered unreasonable. When the police initially set up the barricade, they did not have individualized suspicion of the particular Defendant in this case.

However, the majority indicated that this concept is a general rule which contains several exceptions. The court emphasized that the Fourth Amendment is about reasonableness, not individualized suspicion. The majority pointed to two major exceptions the United States Supreme Court has carved out of this general rule for group seizures that go beyond policing ordinary crime. The first occurred in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), which upheld the use of roadblocks by border patrol agents to intercept illegal immigrants.. The second was case involved roadblocks designed to stop drunk drivers. Mich. Dep't of State Police v. Sitz, 496 U.S. 444 (1990). The majority noted that in those cases the Supreme Court utilized a balancing test instead of individualized suspicion. Therefore, it reasoned that individualized suspicion was not necessary in this circumstance.

The majority continued by analyzing whether or not the group seizure was a violation of the Fourth Amendment when the public interest justifying the seizure is weighed against the intrusion on individual liberty. The majority used a three factor test from Brown to do this. The test requires a court to weigh the gravity of the public concern served by the seizure and the degree to which the seizure advances the public interest against the severity of the interference with individual liberty.

The majority considered the gravity of the public concern significant. It focused on the fact that the Defendant was fleeing a bank robbery and the fact that he was armed.

The court looked at the next prong statistically. It considered the fact that police officers detained 20 cars to catch one bank robber to be significant. The court considered this 5% "hit rate" to be significant when weighed against other Supreme Court precedent which upheld checkpoints that only had a 1.6% "hit rate". However, the court stressed that this precedent did not implicate an emergency situation which was the situation in this case. Further, the police officers had reliable information the bank robber was present within the 20 cars because of the tracking beacon. The majority indicated these factors reasonably advanced the public interest while stressing that police do not have to utilize the least intrusive means for a group seizure, but rather one choice among reasonable alternatives.

The majority then proceeded to the last prong of the test and indicated that the interference with individual liberty was the detaining of 29 innocent people in their cars for close to 30 minutes. It found that this was not an unreasonable interference with individual liberty. The majority noted three major criteria that factored into their conclusion. First, the Fourth Amendment has afforded less protection in automobiles than it has in domiciles. Second, police officers limited the search to the radius of the tracking device. Third, the police officers acted with diligence and did not take longer than reasonably necessary to identify the Defendant. This factor, when weighed against the other two, lead the majority to its conclusion that the procedure utilized by the police was not a violation of the Fourth Amendment.

Having concluded that the group seizure as a whole was not a Fourth Amendment violation, the majority turned to whether or not it was a violation once police officers had developed individualized suspicion of the Defendant. The court analyzed the individual seizure as an investigatory stop and utilized a two prong test. First, the majority asked if the means used to detain the Defendant were not unreasonably intrusive. The court concluded that handcuffing and detaining the Defendant on a curb was not unreasonable, particularly after he started acting suspiciously. Second, the court asked if the duration the Defendant was detained was unreasonably long. It concluded that the Defendant was only detained an hour and a half while the police waited for the homing beacon to arrive and that this was not unreasonably long.

The majority concluded by reiterating that this was not a Fourth Amendment violation because the public interest outweighed the intrusion on private liberty. The district court's ruling was affirmed.

Judge Briscoe issued a concurring opinion. The concurrence disagreed with the majority stating that police officers had not developed individualized suspicion before detaining the Defendant. However, Judge Briscoe indicated that the conduct of the police officers was in good faith and the delay in identifying the Defendant at the group seizure did not amount to the level that would constitute a Fourth Amendment violation.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-1169.pdf

Panel: Phillips, Briscoe, Tymkovich

Date of Issued Opinion: April 8, 2015

Docket Number: No. 11-1169

Decided: Affirmed the order of the district court denying Defendant's motion to suppress

Case Alert Author: Leland Churan

Counsel:

John T. Carlson, Assistant Federal Public Defender (Warren R. Williamson, Federal
Public Defender, Interim, and Virginia L. Grady, Federal Public Defender, Interim, with
him on the briefs), Denver, Colorado, for Defendant - Appellant.

Robert M. Russel, Assistant United States Attorney (John F. Walsh, United States
Attorney, and W. Aaron Vandiver, Special Assistant United States Attorney, with him on
the brief), Denver, Colorado, for Plaintiff - Appellee.
Author of Opinion: Hon. Gregory A. Phillips
Case Alert Circuit Supervisor: Barbara Bergman

Edited: 04/15/2015 at 01:39 PM by Barbara Bergman

    Posted By: Barbara Bergman @ 04/15/2015 01:25 PM     10th Circuit     Comments (0)  

April 14, 2015
  Siluk v. Merwin - Third Circuit
Headline: Third Circuit Holds Inmates' Repayment of Filing Fees Capped

Area of Law: Prison Litigation Reform Act, Civil Procedure

Issues Presented: Does the Prison Litigation Reform Act require - where an inmate has proceeded in forma pauperis in multiple courts - that statutorily mandated payments be capped at 20%?

Brief Summary:

Michael Siluk, an indigent inmate, filed a lawsuit in the United States District Court for the Middle District of Pennsylvania alleging that he had been wrongfully deprived of his federal tax refund while in prison. When the District Court ruled against him, he filed an appeal with the Third Circuit. When Siluk filed both the original case and his appeal, he was charged court costs of $350 and $505 respectively. However, because he was indigent, he was not required to pre-pay these costs, as is the case with most other litigants. However, the Prison Litigation Reform Act (PLRA) does require that he make a down payment on the fees and then pay off the balance with a 20% monthly charge to his prison income (currently $40 per month). On appeal, however, Siluk asked the Third Circuit to consolidate the filing fees for both cases into one and to cap the total monthly charge at 20% of his income, thereby allowing him to pay off the two fees sequentially and not at the same time. The government, on the other hand, asked the Third Circuit to require simultaneous payment of both fees, meaning that a 20% charge would be made against his monthly income for each fee, thereby creating a total assessment equal to 40% of his income. On the basis of the statutory language, the statutory purpose, and Constitutional concerns, the Court found for Siluk, holding that the filing fees should be paid sequentially in the order incurred, subject to the 20% income cap. This result agreed with that reached by two other Circuit Courts - the Second and the Fourth - and rejected that reached by the Fifth, Seventh, Eighth, Tenth, and D.C. Circuits. There was a dissenting opinion.

Extended Summary:

The Prison Litigation Reform Act (PLRA) provides that inmates who file lawsuits, if unable to fully pay court filing fees, will have up to 20% of the previous months' income debited each month to satisfy the fee. Michael Siluk, a prisoner who filed an appeal to a district court judgment on another matter, was denied his motion to combine the filing fees for his initial lawsuit and subsequent appeal. Siluk argued that separating the filing fees in this manner would violate the PLRA's 20% limit on by allowing anywhere from 40% to 100% of the inmate's monthly income to be garnished to pay court costs, if enough cases (from 2 to 5 or more) were filed.

The Third Circuit examined the text, structure, and purpose of the Prison Litigation Reform Act to determine whether sequential, as argued by Siluk, or simultaneous, as argued by the government, repayment of the filing fees was required by the PLRA. The Third Circuit held that, taken together, repayments were intended by Congress to be limited to 20% no matter how many filing fees were involved. In doing so, the Third Circuit rejected the simultaneous approach adopted by the Fifth, Seventh, Eighth, Tenth, and D.C. Circuits.

First the Third Circuit examined the language of Subsection b(1) - providing for initial payment of filing fees on a case by case basis - and b(2) - providing for payments on any deficit in the b(1) payment capped at 20% of the preceding months income. The Third Circuit held that the language of the statute was not inconsistent with requiring sequential payment of filing fees capped at 20% of the previous month's income.

Turning to Congressional intent, the Third Circuit balanced between Congress's intent to prevent the filing of frivolous lawsuits and the desire to not punish inmates for filing valid claims. Noting that the statute is more concerned with ensuring payment than with when the fee is paid, the Third Circuit held that sequential payments are sufficient to deter inmates from filing frivolous lawsuits - and also noting the stronger "three strikes" rule that bars claimants from obtaining indigent filing status (known as in forma pauperis) if they file three or more frivolous claims. The Third Circuit rejected the view adopted by Seventh Circuit on the grounds that the burden of owing additional filing fees is sufficient to create deterrence.

Lastly the Third Circuit agreed that requiring an inmate to pay up to 100% of his income could have 8th Amendment implications. Where an inmate must purchase basic hygiene supplies with his own income, the Third Circuit held, statutory provisions significantly garnishing that prisoner's income would impermissibly restrict access to the judicial system.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/113996p.pdf

Panel: Mckee, Chief Judge and Chagares, Garth, Circuit Judges

Argument Date: May 21, 2014

Date of Issued Opinion: April 10, 2015

Docket Number: No. 11-3996

Decided: Denial of Motion reversed

Case Alert Author: Philip Jones

Counsel:

Paige H. Forster (argued), Patrick M. Emery, Esq., Gregory B. Jordan, Esq. for Appellant

Jeffrey E. Sandberg (argued) for Amicus Curiae

Author of Opinion: McKee, Chief Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mark Anderson

    Posted By: Susan DeJarnatt @ 04/14/2015 09:16 AM     3rd Circuit     Comments (0)  

  Shalom Pentecostal Church v. Secretary U.S. Dept. of Homeland Security - Third Circuit
Shalom Pentecostal Church v. Secretary U.S. Dept. of Homeland Security - Third Circuit

Headline: Third Circuit Vacates Regulation Requiring That Immigrants Applying for a Religious Worker Visa Must Already Have Lawful Immigration Status

Area of Law: Immigration Law

Issue Presented: Whether a regulation under the Immigration and Nationality Act (INA) that to qualify for a visa as a "special immigrant religious worker," the immigrant must have been carrying on religious work "in lawful immigration status" crosses the line from permissible statutory interpretation by the responsible agency to ultra vires regulation contrary to the clear intent of Congress.

Brief Summary:

The Immigration and Nationality Act (INA) enables an immigrant to obtain a visa as a "special immigrant religious worker" if the immigrant meets certain statutory criteria, including that he has been "carrying on" religious work for at least the two years preceding the filing of the visa petition. This case presents the question whether a requirement imposed by the Citizenship and Immigration Service (CIS) that this religious work have been carried on "in lawful immigration status" crosses the line from permissible statutory interpretation by a federal agency charged with implementing the law to an illegal regulation contrary to the clear intent of Congress. The District Court concluded that the regulation is illegal because it contradicts the plain language of the INA. The Third Circuit Court agreed, in part because this regulation would render superfluous another provision of the INA which specifically allows a person who has received a special immigrant religious worker visa to apply for permanent residence status even if they have worked for as many as 180 days in the United States without authorization. The Court concluded that the plain terms of the "special immigrant religious worker" section of the INA are clear and unambiguous, and they do not require that the applicant have been carrying on his religious work in lawful immigration status. However, the Third Circuit disagreed with the District Court on the remedy. Rather than require that the visa be granted, the Court remanded the case to the District Court with instructions that it be returned to CIS so that it could determine whether the petitioner Alencar met the other requirements for the granting of a special immigrant religious worker visa.

Extended Summary:

In June 1995, Carlos Alencar, a Brazilian national, travelled with his family to the United States on a B-2 nonimmigrant tourist visa, which expired in December 1995. After the visa expired, he remained in this country unlawfully. In 1997l he petitioned the CIS for an I-360 visa, which would give him legal immigration status as a "special immigrant religious worker." That petition was denied, as was a subsequent one he filed in 2001. Despite this, Alencar began working as a senior pastor for the Shalom Pentecostal Church ("the Church") in 1998 and continued in that capacity through the filing of his appeal.

"Special immigrant religious worker" is one of the five categories granted preference for issuance of visas in the INA. This category requires membership in a religious denomination with a bona fide nonprofit religious organization in the United States; intent to enter the United States for the purpose of working as a minister or in another religious vocation; and the "carrying on" of such religious work continuously for at least the two years before applying. This would eventually qualify Alencar to seek permanent residency status.

A third I-360 petition was filed by the Church on Alencar's behalf in 2009. CIS denied the petition. CIS did so solely on the ground that the Church had failed to establish that Alencar had been "performing full-time work in lawful immigration status as a religious worker for at least the two-year period immediately preceding the filing of the petition," a newly promulgated regulation added under 8 C.F.R. 204.5(m)(4) and (11) ("the Regulation") by CIS in 2008. Consistent with the Regulation, the CIS Administrative Appeals Office, an appellant in this case, dismissed the Church's appeal because Alencar's religious employment was not authorized under United States immigration law.

In 2011, Alencar and the Church filed a complaint in the United States District Court for the District of New Jersey to challenge the denial of Alencar's I-360 petition on several grounds, including that the Regulation was ultra vires to the INA. The District Court granted the plaintiffs' motion for summary judgement and invalidated the Regulation on the grounds that the Regulation's added requirement that the religious work be performed under "lawful immigration status" was inconsistent with the unambiguous language and statutory scheme of the INA. Further, the District Court found that any remand would be futile and ordered CIS to grant Alencar's I-360 petition.

The Government appealed to the Third Circuit Court the District Court's decision that the Regulation was illegal. Applying the two-step Chevron analysis, the Court dismissed the Government's argument, finding that Congress has directly and clearly spoken to the question at issue in the plain text of the statute. The Court first noted that the definition of "immigrant" in the INA includes aliens in both legal and illegal immigration status. Next, the Court looked to the ordinary meaning of "carrying on," as it is not defined in the INA, and found that it does not include a requirement of lawfulness. Finally, the Court found that the Regulation's requirements of "lawful immigration status" would render another section of the INA superfluous. This is the section that provides that a specified number of days (180) of unauthorized work will not disqualify special immigrant religious workers from applying for permanent residence status, thereby necessarily assuming that some workers will have engaged in unauthorized employment. This is directly counter to the Regulation, which would not allow a special immigrant religious worker to obtain an I-360 visa, a prerequisite for adjustment of status, if that worker had engaged in even a single day of unauthorized work during the two years preceding the visa petition.

Accordingly the Court struck down the Regulation, but it disagreed with the District Judge's decision to order CIS to grant Alencar his visa. The Court reasoned that CIS had no occasion to consider whether Alencar met the other requirements for the special immigrant religious worker program given the outcome that had been dictated by the Regulation. Therefore, the Court reversed the order granting the petition and remand the case to the District Court with instructions to remand to CIS for further fact-finding on whether Alencar satisfies the remaining criteria.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/134434p.pdf.

Panel (if known): Rendell, Greenaway, Jr., and Krause, Circuit Judges

Argument Date: September 8, 2014

Date of Issued Opinion: April 7, 2015

Docket Number: No. 13-4434

Decided: Affirmed District Court's order granting summary judgment and striking portion of INA as ultra vires; Reversed grant of Alencar's petition; Remanded to District Court for further fact-finding and proceedings consistent with this opinion

Case Alert Author: Jaclyn Poulton

Counsel:
Counsel for Appellants: Geoffrey Forney, Esq.; Melissa S. Leibman, Esq. (U.S. Dept of Justice, Office of Immigration Litigation)
Counsel for Appellees: William A. Stock, Esq.
Counsel for Amicus Appellee: Scott D. Pollock, Esq.

Author of Opinion: Judge Krause

Circuit: Third Circuit

Case Alert Supervisor: Professor Mark Anderson

    Posted By: Susan DeJarnatt @ 04/14/2015 09:13 AM     3rd Circuit     Comments (0)  

April 13, 2015
  European Community v. RJR Nabisco Inc. - Second Circuit
Headline: Second Circuit Denies Petition to Rehear Case in Which Panel Held that the Racketeer Influenced Corrupt Organizations Act (RICO) Applies to Extraterritorial Conduct

Area of Law: Racketeer Influenced Corrupt Organizations Act (RICO)

Issue Presented: Whether the Second Circuit should rehear a case addressing whether the Racketeer Influenced Corrupt Organizations Act (RICO) applies to extraterritorial conduct in civil actions in which RICO liability is based upon predicate racketeering acts that expressly apply to foreign conduct.

Brief Summary: The Second Circuit issued an order denying a rehearing en banc. The petition for rehearing challenged the ruling by a panel consisting of Circuit Judge Hall and Senior Judges Leval and Sack, that the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq., applies extraterritorially when liability is based on "racketeering acts" consisting of violations of predicate statutes which Congress expressly made applicable to foreign conduct. In considering the petition for panel rehearing, the court reexamined the panel decision and its compatibility with the Supreme Court's decision in Morrison v. Nat'l Australia Bank, Ltd., 561 U.S. 247 (2010), and the Second Circuit decision in Norex Petroleum Ltd. v. Access Industries, Inc., 631 F.3d 29 (2d Cir.12 2010).

Judge Hall wrote a concurring opinion, in which he supports the original panel ruling and the denial for rehearing. Judges Jacobs, Cabranes, Raggi, and Lynch each authored a dissenting opinion opposing the denial of the petition for rehearing.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...f6fb19e800f/1/hilite/

Extended Summary: By its petition for rehearing en banc, RJR Nabisco Inc. sought review of a panel decision, issued by Circuit Judge Hall and Senior Judges Leval and Sack, that the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq., applies extraterritorially when liability is based on "racketeering acts" consisting of violations of predicate statutes which Congress expressly made applicable to foreign conduct. Specifically, the underlying civil action alleged that RJR Nabisco was engaged in a complex multi-step racketeering scheme involving the extraterritorial sale of RJR Nabisco cigarettes. The complaint charges RJR Nabisco with the predicate acts of extraterritorial proscribed money laundering and the extraterritorial crime of providing material support for terrorism. The panel concluded that "by incorporating these statutes into RICO's predicate racketeering acts, Congress clearly communicated its intention that RICO apply to extraterritorial conduct to the extent that extraterritorial violations of those statutes serve as the basis for RICO liability." The majority did not vote in favor of en banc review, and the petition for rehearing en banc was denied, but four judges wrote individual dissenting opinions in favor of rehearing.

In his concurrence supporting the denial of the rehearing, Judge Hall reaffirmed the panel's decision as "sound," supported by Congressional intent, and consistent with the Supreme Court's decision in Morrison v. Nat'l Australia Bank, Ltd., 561 U.S. 247 (2010), and the Second Circuit's decision in Norex Petroleum Ltd. v. Access Industries, Inc., 631 F.3d 29 (2d Cir.12 2010).

In his dissent, joined by Judges Cabranes, Raggi, Livingston and Lynch, Chief Judge Jacobs, argues that the panel opinion "is in taut tension" with Norex Petroleum and will lead to "vexing questions" absent review reconciling the precedents. In a separate dissenting opinion, Circuit Judge Cabranes, joined by Judges Jacobs, Raggi and Livingston, argues strongly that the panel's holding that "RICO itself has extraterritorial reach if and when one of RICO's predicate statutes has extraterritorial reach" is "flatly inconsistent" with existing precedent. Judge Cabranes calls the panel ruling "a new and potentially far-reaching, judicial interpretation" of RICO that portends "a significant and long-term adverse impact on activities abroad" by "exposing business activities to civil claims of 'racketeering' grounded on extraterritorial activities anywhere in the world."

Judge Raggi, joined by Judges Jacobs, Cabranes, and Livingston, similarly contends that the panel's ruling on RICO's extraterritorial application conflicts with the Supreme Court's holding in Morrison, mandating a presumption against the extraterritorial application of United States statutes barring clear affirmative legislative intent, and Norex Petroleum, which she contends held RICO does not apply extraterritorially even if some predicate acts may be prosecuted extraterritorially. She argues that clarification is needed both on RICO's extraterritorial application and, additionally, to establish criteria for determining whether a RICO claim is domestic or extraterritorial. Finally, Judge Lynch joins in dissent over the denial of the rehearing en banc, arguing that the tension between the panel's holding in this case and Norex Petroleum should be resolved, but does not join the other dissenters in criticizing the panel's ultimate ruling as unsupported.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...f6fb19e800f/1/hilite/

Panel: En Banc

Panel Decision: European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129 (2d Cir. 2014).

Date of Issued Opinion: 4/13/2015

Docket Number: 11-2475

Decided: Petition for rehearing en banc denied.

Case Alert Author: Marley Strauss

Counsel: For Plaintiffs-Appellants: John J. Halloran, Jr., John J. Halloran, Jr., P.C., White Plains, NY, Kevin A. Malone, Carlos A. Acevedo, Krupnick, Campbell, Malone, Buser Slama, Hancock, Liberman P.A., Fort Lauderdale, FL. For Defendants-Appellees: Gregory G. Katsas, John M. Gore, Jones Day, Washington, D.C., Mark R. Seiden, Jones Day, New York, NY.

Author of Opinion: Judge Hall concurs; Chief Judge Jacobs dissents, joined by Circuit Judge Cabranes, Circuit Judge Raggi, Circuit Judge Livingston and Circuit Lynch; Judge Cabranes dissents, joined by Judge Jacobs, Judge Raggi and Judge Livingston; Judge Raggi dissents, joined by Judge Jacobs, Judge Cabranes and Judge Livingston; and Judge Lynch dissents.

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 04/13/2015 08:42 PM     2nd Circuit     Comments (0)  

April 10, 2015
  United States v. White-- Tenth Circuit
Case Name: United States v. White

Headline: Tenth Circuit Holds Categorical Approach Applies to Tier Classification under the Sex Offender Registration and Notification Act ("SORNA").

Areas of Law: Criminal Procedure, Sentencing

Issues Presented:

1. Does the North Carolina offense of taking indecent liberties with a child qualify the defendant for classification as a tier III sex offender?

2. Does the categorical approach apply to tier classification of sex offenders under the SORNA?

3. Does the SORNA violate the Commerce Clause, Tenth Amendment, or Ex Post Facto Clause?

4. Were the defendant's special conditions of release improper for delegating authority to the probation office to approve contact with defendant's grandchildren and nieces?

Brief Summary:

Defendant was convicted of failing to register as a sex offender under the SORNA after moving from Oklahoma to Texas. Defendant unsuccessfully argued that his conviction under the SORNA violated the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. Defendant then challenged his sentence because the district court classified him as a tier III sex offender as opposed to a tier I sex offender. The Tenth Circuit reversed the district court's finding that defendant was a tier III sex offender after determining that the categorical approach applied to tier classification under the SORNA, and that defendant's crime did not satisfy the elements of the federal crimes necessary for tier III classification. The Tenth Circuit then vacated defendant's special conditions of release and provided guidance for the district court in the event that defendant challenged the conditions of release on remand.


Extended Summary:

Defendant White is a convicted sex offender who was charged with failing to update his sex offender registration after moving from Oklahoma to Texas. Although he pleaded guilty to the offense, he reserved five issues for appeal - constitutional challenges to the Sex Offender Registration and Notification Act (SORNA) under the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause, and two challenges to his sentence for calculating his sentence as a tier III sex offender and for imposing conditions of supervised release that limited his contact with his grandchildren and nieces. The Tenth Circuit affirmed the conviction, but held that the district court erred in classifying White as a tier III sex offender and thus remanded for resentencing.

Mr. White was convicted of being a sex offender in North Carolina in 2007. In 2013, he moved to Texas from Oklahoma without registering in Texas or updating his Oklahoma registration. Thus, he was indicted in Oklahoma for failing to register as a sex offender.

Mr. White's Presentence Investigation Report (PSR) treated Mr. White as a tier III sex offender, but then gave him credit for acceptance of personal responsibility and determined a three-level reduction in sentence for a total offense level of 13. Due to Mr. White's prior criminal history and the offense level, the PSR determined that Mr. White's Sentencing Guidelines range was 18-24 months of imprisonment. Although Mr. White argued that he was a tier I sex offender, the district court relied on documents from Mr. White's initial conviction that the victim was the seven-year-old daughter of his girlfriend and that the incident involved contact with her. The district court then compared the offense to the federal crime of abusive sexual contact of a minor under thirteen, which would make him a tier III sex offender. As a result, Mr. White received an 18-month sentence with special conditions of supervised release that prevented Mr. White from being at a residence where children under the age of 18 reside without prior written permission from the U.S. Probation Office. Further, Mr. White was prohibited from associating with children under age 18 without the presence of a "responsible adult" who was aware of the defendant's background and current offense and had been approved by probation.

After dismissing Mr. White's constitutional claims and affirming his sentence, the Tenth Circuit addressed Mr. White's sentencing challenges. The court noted an abuse of discretion standard was the appropriate standard of review for a sentence imposed by the district court. The court explained that it is necessary to address procedural and substantive reasonableness when determining if the sentence is reasonable. It began by explaining the importance of the tier that Mr. White qualifies under as a sex offender. If Mr. White should actually have been considered a tier I sex offender, his base level for sentencing under the Guidelines should have been only 10 to 16 months' imprisonment.

The court then explained the way that tier classification works under the SORNA. Tier III sex offenders are offenders who have committed a crime that is comparable to the federal crime of aggravated sexual abuse, sexual abuse, or abusive sexual contact against a minor under age 13. A tier II offender is an offender who has committed a crime comparable to the crime of abusive sexual contact. All other offenders are classified as tier I offenders.

Next the court noted that the use of the word "offense" in 42 U.S.C. § 16911 -- the statute that lays out tier classifications-- is ambiguous. As a result, the court stated that there are two approaches that may be taken when comparing a conviction with a federal statute - the categorical approach and the circumstance-specific approach.

The court explained that when a statute refers to a generic crime, the categorical approach should be used. This compares the elements of the statute that the individual was convicted of, and the elements of the predicate crime. Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). If a statute is divisible, the court will look beyond the elements of the offense to the actual conduct of the defendant. A statute is divisible when several types of activity can satisfy the elements of the statute in the alternative. See id. When a statute is divisible, under the modified categorical approach the court may look at documents such as plea colloquies, indictments, and jury instructions to determine which type of conduct the defendant's conviction was based on.

The court then noted that where Congress uses the terms "offense," "crime," or "felony" in reference to specific prior acts, the circumstance-specific approach applies. This allows the court to look beyond the elements and examine the underlying facts of the defendant's conviction.

The court then explained that when the elements of statutory construction are used, it is apparent that Congress intended for a categorical approach because of Congress' reference to a general intent section of the criminal code. However, because subsection (4)(A)(ii) refers to the abusive sexual contact of a minor under age 13, the court must use a circumstance-specific approach to consider the age of the victim. In all other respects, the traditional categorical approach will apply.

The court also found the legislative history of § 16911 informative because a House report on the Act stated that one of the primary purposes of the bill was to protect children. Congress intended sex offenses against children to be punished more severely than sex offenses against others.

With that analysis in mind, the court reviewed the actions of the district court in determining that Mr. White was a tier III sex offender. It looked at his North Carolina indictment, which specified that the victim was less than sixteen years old, and that Mr. White was at least five years older than the victim, and older than sixteen. It also stated that he took "immoral, improper, and indecent liberties with the victim for the purpose of arousing and gratifying his sexual desire." The district court also reviewed police reports which listed the victim's age and stated that physical contact was involved. The court held that it was proper for the district court to review the documents in reference to the victim's age, but not for comparing the offense with the federal crime.

The court then engaged in a categorical approach analysis for Mr. White's state crime. It noted that the statute is divisible, so it then reviewed the North Carolina indictment to determine under which section of the North Carolina statute Mr. White was indicted. It determined that he was indicted for the first alternative listed in the statute - "willfully taking and attempting to take immoral, improper, and indecent liberties with a victim under the age of sixteen for the purpose of arousing and gratifying sexual desire."

Next, it compared the crime with the elements of the federal crime, listed in
§ 16911(4)(A) AND (3)(A). It noted that the elements necessary to commit the North Carolina crime involved that Mr. White (1) willfully, (2) took or attempted to take indecent liberties, (3) with a minor, (4) for the purpose of arousing and gratifying sexual desire. Physical contact is not listed as an element of the North Carolina crime.

The court determined that when the crime is compared with comparable federal statutes, he cannot be considered a tier II or tier III sex offender. Tier III classifications are reserved only for convictions similar to aggravated sexual abuse, sexual abuse, or abusive sexual contact against a minor under age thirteen. The only one that potentially applies in this case is abusive sexual contact against a minor under age thirteen. The court explained that aggravated sexual abuse and sexual abuse require a sexual act, which in turn requires a physical act. Further, abusive sexual contact also requires physical contact, though it is broader than the sexual act required to satisfy the elements of aggravated sexual abuse or sexual abuse. As a result, Mr. White had to be considered a tier I sex offender because his state crime did not require physical contact as an element of the statute.
The court determined that the sentence was procedurally unreasonable and remanded Mr. White's case for resentencing.

Finally, the court addressed Mr. White's conditions of supervised release, and vacated the conditions of supervised release because it vacated Mr. White's sentence. It briefly engaged in a discussion of Mr. White's claims to provide guidance to the district court, addressing the right to familial association and the delegation of judicial authority to a probation officer. It instructed the district court to consider the nature of Mr. White's relationship with his grandchildren to determine if a parent-like right is impacted, and if there is, then the conditions of release must be supported by compelling circumstances. The court also noted that the district court did not improperly delegate authority to the probation office to preapprove Mr. White's contact with his grandchildren and nieces.


To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-7031.pdf

Panel: Kelly, Lucero, McHugh

Date of Issued Opinion: April 6, 2015

Docket Numbers: 14-7031

Decided: Conviction was affirmed but sentence and conditions of supervised release were vacated and remanded.

Counsel:

Carl Folsom, III, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, with him on the brief), Muskogee, Oklahoma, for Appellant.

Edward Snow, Assistant United States Attorney (Mark F. Green, United States Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the brief), Muskogee, Oklahoma, for Appellee.

Author: McHugh

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 04/10/2015 05:58 PM     10th Circuit     Comments (0)  

  Bucklew v. Lombardi - Eighth Circuit
Headline Eighth Circuit reverses dismissal of prisoner lawsuit challenging the lethal-injection protocol of the Missouri Department of Corrections as applied to him in light of his pre-existing medical condition

Area of Law Eighth Amendment

Issue(s) Presented Whether the district court properly dismissed sua sponte a § 1983 action alleging that Missouri's lethal-injection method of execution would violate the prisoner's Eighth Amendment rights due to a serious medical condition that increased the likelihood of the execution method causing extreme pain.

Brief Summary This is a companion opinion to that issued on March 6, 2015 in Zink v. Lombardi, the full text of which can be found at http://media.ca8.uscourts.gov/opndir/15/03/142220P.pdf. In addition to being a plaintiff in that action, which challenged Missoui's lethal-injection protocol on a number of grounds, Bucklew filed this separate action under 42 USC § 1983. He alleged that the protocol violates his Eighth Amendment right to be free from cruel and unusual punishment because he suffers from a serious medical condition that creates a significant risk that the execution will cause him excruciating pain. The district court dismissed plaintiff's claim sua sponte before an answer was filed, finding that plaintiff had not adequately alleged facts to support the elements of an Eighth Amendment challenge to Missouri's method of execution.

On appeal, Bucklew raised several issues that were duplicative of the arguments made on appeal in Zink v. Lombardi. The Eighth Circuit resolved those issues in its opinion in Zink. Bucklew also argued that he adequately alleged that Missouri's lethal-injection protocol, as applied to him, would violate the Eighth Amendment standard because of his unique medical condition. There are two essential elements of an Eighth Amendment claim challenging a state's method of execution. First, the complaint must adequately allege that the protocol creates a substantial risk of severe pain. Second, the complaint must allege that a feasible alternative method of execution exists that would substantially reduce the risk of harm.

In addressing the as-applied argument, the Eighth Circuit examined the allegations of Bucklew's complaint and the affidavits of medical experts attached thereto concerning his medical condition, congenital cavernous hemangioma. Among other things, the facts and opinions alleged that, due to this condition, possible hemorrhaging or abnormal circulation of the lethal drug created a substantial risk that the execution would be prolonged, extremely painful, and might result in suffocation. The complaint did not specifically allege a feasible alternative method of execution that would substantially reduce these risks. Though an answer was not filed, in its papers opposing Bucklew's motions for preliminary injunction and a stay of execution, the Missouri Department of Corrections acknowledged Bucklew's medical condition, and determined that it would change its lethal-injection procedure to lessen the alleged risk. The Eighth Circuit found that this concession bolstered the detailed allegations of the complaint alleging substantial risk of serious harm, and also supported Bucklew's allegations that Missouri had unreasonably refused to change its regular method of execution to a "feasible, readily implemented" alternative that would significantly reduce the substantial risks alleged.

The Eighth Circuit noted that a district court only has the power to dismiss a claim sua sponte where the plaintiff cannot possibly prevail and amendment of the claim would be futile. After reviewing the complaint and the record, the Eighth Circuit held that the district court prematurely exercised this limited authority because it was not "patently obvious the plaintiff could not prevail." The Eighth Circuit further noted that the district court should not have assumed that Bucklew would have declined an invitation to amend the complaint to include more detailed allegations of a feasible alternative method of execution.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/03/142163P.pdf

Panel En Banc

Date of Issued Opinion March 6, 2015

Decided Reversed and remanded

Docket Number 14-2163

Counsel Cheryl Ann Pilate for Appellant and James B. Farnsworth for Appellees

Author Circuit Judge Loken

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

    Posted By: Joelle Larson @ 04/10/2015 03:37 PM     8th Circuit     Comments (0)  

  Zink v. Lombardi - Eighth Circuit
Headline Eighth Circuit affirms dismissal of prisoner lawsuit challenging the lethal-injection protocol of the Missouri Department of Corrections

Area of Law Eighth Amendment

Issue(s) Presented Whether the district court properly dismissed an action for declaratory judgment and injunctive relief alleging that Missouri's lethal-injection protocol violates the U.S. Constitution, the Missouri Constitution, and various federal and state laws.

Brief Summary In 2012, Missouri changed its lethal-injection protocol from administration of three drugs to only one, propofol. In response to the protocol change, a group of prisoners filed suit challenging the new single drug protocol. In 2013, while the lawsuit was pending, Missouri altered it protocol yet again, replacing propofol with pentobarbital. Plaintiffs subsequently amended their complaint to allege 10 separate claims challenging the legality of the revised protocol. Missouri moved to dismiss all of the claims. The district court granted the motion, dismissing the amended complaint in its entirety. Plaintiffs appealed the ruling with respect to seven of the claims.

On appeal, the prisoner appellants primarily argued that Missouri's lethal-injection protocol violates the right to be free from cruel and unusual punishment contained in the Eighth Amendment of the U.S. Constitution. The Eighth Circuit, sitting en banc, held that appellants had not adequately pled that the protocol violates the cruel and unusual punishment prohibition. There are two essential elements of a claim challenging a state's method of execution. First, the complaint must adequately allege that the protocol creates a substantial risk of severe pain. Second, the complaint must allege that a feasible alternative method of execution exists that would substantially reduce the risk of harm.

In this case, the Eighth Circuit held that the complaint did not adequately allege facts sufficient to show that Missouri's protocol creates a substantial risk of severe pain. The facts alleged were limited to hypothetical situations and speculation, and did not rise to the level of showing that the challenged protocol was "sure or very likely to cause . . . needless suffering." Moreover, the Eighth Circuit also held that the complaint did not adequately plead the second element of a cruel and unusual punishment claim - the existence of an alternative method of execution. The complaint merely conceded that other methods of lethal injection would be constitutional. The Eighth Circuit found that this concession alone with no additional factual support was not sufficient to state a claim under the Eighth Amendment.

The Eighth Circuit also rejected appellants' additional claims that Missouri's lethal-injection protocol violates other Eighth Amendment rights, deprives them of due process and equal protection, violates their First Amendment rights, and breaks a number of other federal laws. Notable among these additional holdings was the Eighth Circuit's ruling that the First Amendment does not grant a prisoner a right "to know where, how, and by whom the lethal injection drugs will be manufactured." The Court held that appellants failed to state a claim of qualified right of public access to such information, because they could not plausibly allege a history of openness to the general public.

The full text of the opinion may be found at Text

Panel En Banc

Date of Issued Opinion March 6, 2015

Decided Affirmed

Docket Number 14-2220

Counsel Joseph Luby for Appellants and Shaun Mackelprang for Appellees

Author Per Curiam

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

    Posted By: Joelle Larson @ 04/10/2015 03:31 PM     8th Circuit     Comments (0)  

April 9, 2015
  United States ex rel. Wilson v. Graham County -- Fourth Circuit
Headline: Fourth Circuit Rejects Application of Public Disclosure Bar in Relator's Qui Tam Action

Area of Law: Civil Procedure

Issue Presented: Whether information contained in reports issued to county, state, and federal government officials should be considered "publicly disclosed" for purposes of the False Claims Act.

Extended Summary: The qui tam provisions of the False Claims Act ("FCA") authorize private citizens, known as "relators," to recover from persons who make false or fraudulent claims for payment to the United States government. When Relator Karen Wilson filed suit in 2001, the FCA contained a jurisdiction stripping provision know as the public disclosure bar. The public disclosure bar mandated that claims based on information that was publicly disclosed "in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation" would be dismissed unless the action was brought by the U.S. Attorney General or the person bringing the action was the original source of the information. The public disclosure bar was amended in 2010, however, those amendments were not retroactive for the purpose of this litigation.

Karen Wilson worked at the Graham County Soil and Water Conservation District ("SWCD") as a part-time secretary from 1993-1997. In 1995, a storm caused significant flooding and erosion in parts of western North Carolina. North Carolina's Graham and Cherokee Counties applied for relief and the United States Department of Agriculture ("USDA") agreed to provide funding to cover the costs of cleanup through its Emergency Watershed Protection Program ("recovery program") administered by the Natural Resources Conservation Service ("NRCS") and the U.S. Forest Service. The counties entered into cooperative agreements with the USDA, agreeing to perform or contract out the necessary recovery work in order to remediate areas damaged by flooding. The responsibility for the administration of the recovery programs fell to each county's SWCD. Both SWCDs hired independent contractors to complete the required recovery tasks.

When the recovery program commenced, Karen Wilson began to suspect fraud in its implementation by her colleagues at the SWCD and employees of the NRCS. Wilson wrote a letter to a USDA Special Agent outlining her concern that two NRCS employees had agreed with independent contractors to front the cost of supplies in exchange for a share of the ultimate profits. She additionally informed the agent that the SWCD had chosen an independent contractor who was a salaried SWCD employee and therefore ineligible to work under the contract. Finally, she informed the agent that county auditors were auditing the SWCD. The ensuing county audit report issued to state and county government officials exposed potential irregularities in the SWCD's hiring and documentation. The report was distributed to county and state agencies, and the Graham County SWCD was given a copy to distribute to the USDA if so required.

The county audit report failed to put an end to Karen Wilson's suspicions of ongoing fraud. In 1996, Wilson wrote to another USDA special agent, reiterating and expanding on her earlier allegations. In 1997, that special agent issued a federal audit report confirming Wilson's allegations against her colleague Richard Green. The federal report was not to be distributed outside of state and federal law enforcement agencies.

In 2001, Wilson filed a qui tam action alleging that fraudulent invoices were submitted to the federal government under the recovery program in both Graham and Cherokee Counties. In 2006, after two trips to the U.S. Supreme Court, Wilson filed her third amended complaint in which she named as defendants Graham County, the Graham County SWCD, the Cherokee County SWCD, and several individuals.

The issue presented by the operative pleading for this appeal was whether the information contained in internal government reports (whether federal, state, or local) was publicly disclosed for purposes of the FCA. The district court dismissed the case for lack of subject matter jurisdiction pursuant to the FCA's public disclosure bar. The court concluded that all reports had been publicly disclosed because they were distributed to public officials, which put the government on notice of possible fraud. On appeal, the United States Court of Appeals for the Fourth Circuit held that the district court applied the incorrect legal standard in reaching its conclusion. The Fourth Circuit agreed with the majority of other circuits, finding public disclosure requires that there be some act of disclosure outside of the government to the public domain.

The Fourth Circuit found that neither of the reports at issue was publicly disclosed prior to the time Wilson filed suit. Because the FCA's public disclosure bar does not apply to Wilson's suit, the court remanded the case to the district court, which has subject matter jurisdiction.

To read the full opinion, please click here.

Panel: Circuit Judges Motz and King, and District Judge Allen.

Argument Date: 12/09/2014

Date of Issued Opinion: 02/03/2015

Docket Number: Case No. 13-2345

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

Counsel: Mark Tucker Hurt, Abingdon, Virginia, for Appellant. Sean Francis Perrin, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Charlotte, North Carolina, for Appellees Raymond Williams, Dale Wiggins, Lynn Cody, and Graham County. Martin McCracken, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees Graham County Soil & Water Conservation District, Cherokee County Soil & Water Conservation District, Gerald Phillips, Allen Dehart, Lloyd Millsaps, Bill Tipton, C.B. Newton, and Eddie Wood.

Author of Opinion: Judge Motz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 03:22 PM     4th Circuit     Comments (0)  

  Johnson v. American Towers LLC, et al. -- Fourth Circuit
Headline: No Glimmer of Hope for Assaulted Corrections Officer in Choice of Law Pleading

Area(s) of Law: Civil Procedure; Conflict of Laws

Issues Presented: Whether the district court properly exercised federal jurisdiction over Johnson's state-law claims; and if so, whether the district court properly dismissed those claims on the merits.

Brief Summary: In March 2010, a group of inmates ordered an in-home attack on corrections officer Captain Robert Johnson, in retaliation for Capt. Johnson confiscating contraband cell phones and other contraband goods. Johnson was shot six times in the chest and stomach. After eight surgeries and months of rehabilitation, in February 2013, Capt. Johnson and his wife brought suit for the attack. The Johnsons elected not to sue the typical defendant, i.e., the shooter; and instead sued several cell phone service providers for facilitating the illegal use of cellphones by the inmates and failing to take steps to curb that use.
The defendants timely removed the case to federal court asserting both a federal question and complete diversity. The Johnsons' motion to remand the case back to state court was denied. In June of 2013, the district court consolidated and granted the defendants' 12(b)(6) motions to dismiss for three reasons: (1) the Johnsons' claims were barred by express and conflict preemption; (2) South Carolina law did not impose a duty on defendants to prevent inmates from illegally using their cell phone services; and (3) the Johnsons' claims were implausible and so did not meet pleading standards. The Johnsons appealed.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's ruling. The court reviews questions of subject matter jurisdiction de novo. The district court improperly found the existence of federal question jurisdiction under the express preemption doctrine because the Communications Act did not completely preempt the Johnsons' claims. The district court did however properly exercise diversity jurisdiction because the only non-diverse parties were fraudently joined (based on the fraudulent joinder doctrine) and the amount in controversy exceeded $75,000. As the defendants succeeded in proving the plaintiffs would not be able to show a "glimmer of hope" of establishing a cause of action against the in-state defendant, the denial of the Johnsons' motion was proper.

After the Fourth Circuit determined the district court properly exercised jurisdiction, the court then turned to examine whether the Johnsons failed to state a claim as a matter of law. The court reviewed the district court's grant of the defendant's motion to dismiss de novo and affirmed the district court on three separate grounds. First, the court found the Johnsons' common law tort claim would obstruct or burden the wireless providers' ability to provide coverage, which is directly in conflict with the Communications Act's federal scheme to ensure wireless telecommunications services and develop the infrastructure necessary to support them. Furthermore, the state-law obligation to block calls from contraband cellphones inside prisons would also be preempted by the Communications Act since the FCC repeatedly interprets their regulations to prohibit any form of "jamming" wireless signals, even by prison officials. Meaning, it would be impossible for the defendants to simultaneously comply with the federal regulations that prohibit blocking wireless signals and the putative state-law duty to block certain phone calls emanating to and from prisons; this is the very definition of conflict preemption according to the court. Finally, the court concurred with the district court in viewing the Johnsons' speculative claims as a fishing expedition to determine whether the factual basis for their argument existed. Rather than provide further factual development to support the claim that an inmate ordered a co-conspirator to kill Capt. Johnson on a contraband cell phone, such as identifying the wireless service provider that carried the alleged call or identifying when the alleged call occurred, the Johnsons' complaint merely contained a bare assertion. This sort of pleading fails to set forth a plausible claim for relief. Therefore, the Fourth Circuit affirmed the district court's ruling.

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

Panel: Judges Shedd, and Floyd, and Senior Judge Davis

Argument Date: 10/29/14

Date of Issued Opinion: 03/25/15

Docket Number: No. 13-1872

Decided: Affirmed by published opinion.

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

Counsel: ARGUED: John E. Parker, PETERS, MURDAUGH, PARKER, ELTZROTH & DETRICK, PA, Hampton, South Carolina, for Appellants. Scott H. Angstreich, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C.; Jeremy Cook Hodges, NELSON MULLINS RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for Appellees. ON BRIEF: William F. Barnes, III, PETERS, MURDAUGH, PARKER, ELTZROTH & DETRICK, PA, Hampton, South Carolina, for Appellants. John M.S. Hoefer, WILLOUGHBY & HOEFER, P.A., Columbia, South Carolina; Andrew E. Goldsmith, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Appellees Cellco Partnership, Sprint Cellular Company of South Carolina, Alltel Communications, LLC, Verizon Wireless, Verizon Wireless Service LLC, and Verizon Wireless of the East LP. Robert W. Foster, Jr., NELSON MULLINS RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for Appellee Farmers Telephone Cooperative, Inc. Daniel R. Settana, Jr., Janet Brooks Holmes, MCKAY, CAUTHEN, SETTANA & STUBLEY, P.A., Columbia, South Carolina, for Appellees AT&T Inc., AT&T Mobility LLC, and AT&T Mobility Services, LLC. Eric G. Fosmire, THE FOSMIRE LAW FIRM, LLC, Columbia, South Carolina, for Appellees T-Mobile USA Tower LLC and T-Mobile USA, Incorporated. Elbert S. Dorn, Myrtle Beach, South Carolina, Burl F. Williams, NEXSEN PRUET, LLC, Greenville, South Carolina, for Appellee American Towers, LLC. David S. Cox, Matthew E. Tillman, WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Charleston, South Carolina, for Appellee Sprint Communications Company L.P. Daniel B. White, GALLIVAN, WHITE & BOYD, P.A., Greenville, South Carolina, for Appellee TracFone Wireless, Inc.

Author of Opinion: Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 03:09 PM     4th Circuit     Comments (0)  

  Mascio v. Colvin -- Fourth Circuit
Headline: When a Decision Is Not Enough: Determining Disability Status for Social Security Benefits Requires Explanation

Area of Law: Social Security

Issue Presented: Whether the Social Security Administration erred in denying an application for supplemental social security income benefits when the administrative law judge failed to explain why the claimant was not disabled.

Brief Summary: Bonnilyn Mascio claimed that she was disabled due to a severe degenerative disc disease, carpal tunnel syndrome, and adjustment disorder and sought social security benefits. In 2009, an ALJ concluded that Mascio was not disabled because although she could not perform her past work based on her residual functional capacity, she could perform other work. Mascio filed a complaint in district court, which granted the Commissioner's motion for judgment and upheld the denial of benefits. Mascio appealed, arguing the ALJ erred by: (1) not conducting a function-by-function analysis when assessing her residual functional capacity; (2) not including Mascio's concentration, persistence, or pace limitation in his hypothetical to the vocational expert; (3) determining Mascio's residual functional capacity before assessing the credibility of her pain claims; and (4) not applying "great weight" to her subjective claims of pain.

The United States Court of Appeals for the Fourth Circuit agreed with Mascio's first three claims and reversed the district court's decision, with instructions to vacate the denial of benefits and remand for further administrative proceedings. The Fourth Circuit stated that the Social Security Administration's disability determination can stand only if "the ALJ's factual findings are supported by substantial evidence." Here, the court found the ALJ's findings were not so supported, and concluded that remand was necessary because the court was "left to guess about how the ALJ arrived at his conclusions . . . [and] remain[ed] uncertain as to what the ALJ intended." With respect to Mascio's first claim, the Fourth Circuit found the ALJ failed to conduct a function-by-function analysis because the administrative record included two conflicting residual functional capacity assessments and the ALJ did not explain how he reconciled the conflict to arrive at his final determination. As for Mascio's second claim, the court noted the ALJ failed to take into account Mascio's limitation in concentration, persistence, or pace in his hypothetical to the vocational expert when evaluating residual functional capacity, and did not explain the exclusion. The court also found the ALJ's determination of Mascio's residual functional capacity was incorrect because he determined Mascio's ability to work before assessing the credibility of her claims. According to the court, Social Security Ruling 96-8p requires the ALJ to consider Mascio's claims, as part of his analysis of residual functional capacity, and not as a separate assessment. The court did not accept Mascio's final claim to apply the "great weight" rule, which states that the ALJ must afford "great weight" to subjective evidence regarding a claimant's allegation that she suffers from debilitating pain whenever it is supported by substantial evidence, because no such rule exists in the circuit and its adoption would conflict with the Administration's rule to take into account all of the available evidence.

To read the full opinion, please click here.

Panel: Judges Agee, Diaz, and Floyd

Argument Date: 12/11/2014

Date of Issued Opinion: 03/18/2015

Docket Number: No. 13-2088

Decided: Reversed and Remanded with instructions by published opinion

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

Counsel: ARGUED: David J. Cortes, ROBERTI, WITTENBERG, LAUFFER, WICKER & CINSKI, P.A., Durham, North Carolina, for Appellant. Mark J. Goldenberg, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland, 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 Appellee.

Author of Opinion: Judge Diaz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 02:55 PM     4th Circuit     Comments (0)  

  United States v. Lymas -- Fourth Circuit
Headline: Fourth Circuit Rejects One Size Fits All Sentencing for Defendants Involved in Chain of Robberies

Area of Law: Sentencing Guidelines

Issue Presented: Whether a district judge's failure to give individualized rationales for each sentence imposed on three separate defendants was procedural error requiring resentencing.

Brief Summary: This action was the consolidation of three criminal appeals all resulting from the same set of convenience store robberies. The appellants, Xavier DeShawn Lymas, Lionel Bernard Newman, and Jesse Gomez, all pleaded guilty to using and carrying a firearm during and in relation to a crime of violence and to conspiracy to commit a Hobbs Act robbery. The Hobbs Act prohibits actual or attempted robbery or extortion that affects interstate commerce.

In the fall of 2011, the three defendants, with the help of a fourth man and a teenager, robbed three convenience stores in Fayetteville, N.C. Each of the three defendants participated in two of the three robberies and each had different roles in the conspiracy. Gomez was the leader of the conspiracy, was armed during two robberies, had a criminal history, and pistol-whipped a store clerk. The pre-sentence report recommended an advisory sentencing range of 160-185 months for Gomez. Newman was armed during two robberies, pointed his gun at a store clerk, recruited a juvenile as an accomplice for one robbery, had a criminal history, and was a known member of a local gang. Newman's advisory sentencing range was 170-197 months. Lyman was not armed for either of the robberies he participated in, and had no criminal history. Lyman's advisory sentencing range for the two charges was 123-138 months.

At sentencing, the district court judge stated "this is one of the fallacies of guideline sentencing that in reality, in justice, in fairness and in truth, these four people should receive the same sentence and should be punished equally across the board for what they did." The district judge imposed a sentence of 200 months on each of the defendants, calling the result "fair, just and necessary." The defendants appealed, arguing that a lack of individualized justification for each sentence was a procedural error.

The United States Court of Appeals for the Fourth Circuit vacated the sentences and remanded for resentencing. The Fourth Circuit held that the district judge failed to sufficiently explain why he rejected each man's relevant sentencing guidelines range. The court found that the "wholesale rejection of the Guidelines might be permissible" but "it would require a significantly more detailed explanation."

The Fourth Circuit also held that a court commits procedural error when it fails to justify a defendant's sentence with an individualized rationale. The Fourth Circuit wrote, "except for offering its view of the seriousness of the offense, the district court ignored every other statutory factor and essentially sentenced the crime itself rather than the individual defendants." The Fourth Circuit called the district court's sentencing "a cookie-cutter approach that is the antithesis of our individualized sentencing process."

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

Panel: Chief Judge Traxler, Judges Wynn and Harris

Argument Date: 12/11/2014

Date of Issued Opinion: 03/18/2015

Docket Number: Case Nos. 13-4635, 13-4636, & 13-4650 (Consolidated)

Decided: Vacated and remanded by published opinion.

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

Counsel: ARGUED: Terry F. Rose, Smithfield, North Carolina; G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellants. Shailika S. Kotiya, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant Lymas. Brett Wentz, WENTZ LAW, PLLC, Wilmington, North Carolina, for Appellant Gomez. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Chief Judge Traxler

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 02:47 PM     4th Circuit     Comments (0)  

  United States v. Cornell -- Fourth Circuit
Headline: No Relief for Latin King Gang Members and Associate

Areas of Law: Criminal Law, Criminal Procedure

Issues Presented: Whether there was sufficient evidence; and whether the district court's jury instructions constituted reversible error for the defendants' RICO convictions.

Brief Summary: Defendants Jorge Cornell, Russell Kilfoil, and Ernesto Wilson, along with three other co-defendants, were charged with conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). Specifically, Defendants were charged with "knowingly and intentionally conspir[ing] to conduct and participate, directly and indirectly, in the conduct of the affairs of [a criminal] enterprise through a pattern of racketeering activity." The men were alleged to be involved with a North Carolina chapter of the violent street gang the Latin Kings. The gang's alleged illegal activities included attempted murder, armed robbery, and bank fraud. The jury convicted Cornell, Kilfoil, and Wilson, but acquitted the other co-defendants.

The Defendants appealed to the United States Court of Appeals for the Fourth Circuit, which found there was no reversible error and affirmed the convictions. The first issue raised on appeal was whether there was sufficient evidence to convict defendants of the RICO conspiracy charge. To satisfy a RICO charge under § 1962(d), the government must prove that an enterprise affecting interstate commerce existed; "that each defendant knowingly and intentionally agreed with another person to conduct or participate in the affairs of the enterprise; and . . . that each defendant knowingly and willfully agreed that he or some other member of the conspiracy would commit at least two racketeering acts." Focusing on the interstate commerce aspect, the Defendants contested the district court's instruction that "[t]he Government must prove . . . the enterprise activity affected interstate or foreign commerce in any way, no matter how minimal." (Emphasis added.) The Fourth Circuit concluded that the de minimis instruction was appropriate in light of the 2005 Supreme Court decision in Gonzales v. Raich. The court further concluded there was more than sufficient evidence to meet the minimal threshold required.

The Defendants also argued that the district court gave an inappropriate Allen charge - a supplemental instruction given by the court when the jury has reached an impasse in its deliberations and is unable to reach a consensus. An Allen charge must not coerce the jury, and it must be fair, neutral and balanced. The district court gave two Allen charges to the jury--the first was on the second day of deliberations, and neither party objected. Then, on the fourth day of deliberations, the day before Thanksgiving, the jury sent a note indicating another impasse. The district court told the jury that certain time, money and resources had been put into the trial, and that it was "unlikely a jury of twelve men and women could be assembled [for a retrial] who are more conscientious as you have been or impartial as you have exhibited and more competent than the twelve of you." After three more hours of deliberations, the jury convicted Cornell, Kilfoil, and Wilson, but acquitted three other co-defendants. On appeal, Defendants argued that the second Allen charge was improperly coercive. The Fourth Circuit held there was no coercion because the jury continued deliberation for over three hours after the Allen charge and issued a split verdict convicting three Defendants and acquitting the others, demonstrating conscientious deliberations.

Cornell individually raised two issues regarding the evidence admitted at trial: the court's striking of a defense witness' testimony and the admission of a letter purportedly written to him by a former gang member. The Fourth Circuit concluded that any error resulting from the evidentiary rulings was harmless.

Finally, Wilson raised two separate issues on appeal. First, he argued there was insufficient evidence to conclude he joined the RICO conspiracy because he never actually joined the gang. While the Fourth Circuit agreed that "mere association" with a criminal enterprise is not sufficient to sustain a RICO conspiracy charge, the court held there was more than sufficient evidence to conclude that Wilson "knowingly and intentionally agreed . . . to conduct or participate in the affairs of the enterprise." Wilson had helped plan the robberies, participated in at least five of them, and split the proceeds with gang leaders. Wilson also challenged the sufficiency of the evidence supporting his conviction because he was convicted of acts dating as late as August, 2011, though he left North Carolina in May, 2007. The Fourth Circuit rejected this argument because a defendant who joins a conspiracy is responsible for the acts of the conspiracy "through every moment of [the conspiracy's] existence." An exception to this rule exists if a defendant takes an affirmative act to remove himself from the conspiracy. However, in the absence of such an act in the instant case, Wilson remained liable for the acts of the conspiracy, even after leaving the state. The court did note that Wilson's defense did not raise a withdrawal defense and never requested such a jury instruction. Therefore, the Fourth Circuit affirmed the judgment of the district court and the conviction and sentence of the three Defendants.

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

Panel: Judges King and Agee, and Senior Judge Davis

Argument Date: 01/29/2015

Date of Issued Opinion: 03/16/15

Docket Number: No. 13-4630

Decided: Affirmed by published opinion.

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

Counsel: ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel Hill, North Carolina; Brian Michael Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North Carolina; Curtis Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham, North Carolina, for Appellants. Sonja M. Ralston, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Leslie R. Caldwell, Assistant Attorney General, David A. O'Neil, Acting Deputy Assistant Attorney General, Leshia M. Lee-Dixon, Organized Crime and Gang Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand, United States Attorney, Greensboro, North Carolina, Robert A.J. Lang, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellees.

Author of Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 02:19 PM     4th Circuit     Comments (0)  

  United States v. Sonmez -- Fourth Circuit
Headline: For Some, Marriage is a Word - For Others, a Sentence: Expansive Marriage Fraud Jury Instructions Rejected

Areas of Law: Immigration

Issues Presented: Whether it was an abuse of discretion for the district court to reject jury instructions related to a charge of marriage fraud that instructed the jury the government had to prove (1) the sole reason the defendant entered into the marriage was to obtain immigration benefits, and (2) the defendant had no intent to establish a life with his spouse.

Brief Summary: Fatih Sonmez is a Turkish national who came to the United States on a tourist visa in November 2000, but remained in the country beyond the date permitted. In November 2008, Sonmez married U.S. citizen Tina Eckloff, and quickly submitted an application for a green card.

While that application was pending, an investigation into alleged marriage fraud conducted by the Department of Homeland Security led officials to Eckloff, and her marriage to Sonmez. At Sonmez's trial, Eckloff testified that a friend introduced her to Sonmez at a restaurant. That friend also had married a foreign national so that he could obtain a green card. Eckloff testified she agreed to marry Sonmez in exchange for $2000. She also said the two were married about two weeks after their initial meeting. They moved into the same residence after the marriage in case anyone "came looking." Sonmez's story was markedly different from Eckloff's. He claimed the two had been dating for more than six months before their marriage. He also said they had a sexual relationship, frequently discussed marriage, and even attempted to have a child together - all of which Eckloff denied.
At the close of trial, Sonmez proposed jury instructions that described four elements as necessary for a conviction of marriage fraud. Two of these elements were that "the only reason the marriage was entered into was to obtain an immigration benefit," and that "the defendant and his US citizen spouse had no intent to establish a life together." The district court rejected these instructions, and Sonmez was convicted of marriage fraud. He appealed, arguing that his proposed instructions should have been accepted.

The United States Court of Appeals for the Fourth Circuit affirmed the district court decision. The marriage fraud statute applies whenever an individual knowingly enters into a marriage "for the purpose of evading any provision of the immigration laws." In accord with the majority of other circuits, the Fourth Circuit refused to read into the statute a requirement that evasion of immigration laws be the "sole" purpose for the marriage, as Sonmez's requested instructions would do.

To read the full opinion, please click here.

Panel: Judges Niemeyer, Shedd, and Keenan

Argument Date: 12/11/2014

Date of Issued Opinion: 02/02/2015

Docket Number: No. 13-4577

Decided: Affirmed by Published Opinion

Case Alert Author: David Arnold, Univ. of Maryland Carey School of Law

Counsel: Hassan Minhaj Ahmad, HMA LAW FIRM, PLLC, Herndon, Virginia, for Appellant. Paul Michael Cunningham, 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 Keenan

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 01:40 PM     4th Circuit     Comments (0)  

  United States v. Westbrooks -- Fourth Circuit
Headline: If Your Lawyer Made You Do It, Be Sure You Can "Prove" It

Area of Law: Evidence, Criminal Procedure

Issue Presented: Whether the burden of an advice-of-counsel defense was properly placed on the government, or improperly shifted to the defendant.

Brief Summary: Tamny Westbrooks managed JATS Tax Service, a tax preparation business in North Carolina. In 2008, the IRS issued summonses to Westbrooks and another JATS employee as part of an investigation, but Westbrooks declined to provide the requested tax records. As a result, the IRS obtained a warrant and seized general business records and clients' tax returns. The warrant did not authorize seizure of tax-related employment forms. Since the documents the government sought were not uncovered during the execution of the warrant, the IRS converted its administrative investigation into a grand jury investigation, and issued a subpoena requiring Westbrooks to produce further documentation. Westbrooks maintained she was not the owner of the business, and was merely an employee herself.

Westbrooks appeared before the grand jury and produced a packet of materials containing unopened mail related to the business, as well as refund checks for clients. The government moved to show cause as to why Westbrooks should not be held in contempt for failing to comply with the subpoena because most of the documents Westbrooks provided were not responsive to the subpoena.

During the show-cause hearing, Westbrooks testified that she did not respond to the subpoena because her attorney, Frederic Williams, told her the government "had everything," and she should just bring whatever mail may have arrived at the office. The district court found Westbrooks guilty of criminal contempt. Westbrooks moved for a new trial arguing that she was unexpectedly assigned the burden of her advice-of-counsel defense. Her motion was denied because she failed to present all evidence related to her advice-of-counsel defense during her initial hearing.

On appeal, Westbrooks argued that the district court improperly assigned her the burden of proving her advice-of-counsel defense. The United States Court of Appeals for the Fourth Circuit disagreed, holding that the burden was not improperly shifted. The court explained that a court may require the defendant to produce evidence supporting an advice-of-counsel defense, while the ultimate burden of proving the elements of criminal contempt remained with the government.

The Fourth Circuit reviewed the record and determined that although there was evidence Westbrooks had relied upon the advice of her attorney, Westbrooks failed to produce sufficient evidence to establish the other necessary element of an advice-of-counsel defense -- "full disclosure of all pertinent facts to an attorney." Therefore, Westbrooks' evidence was insufficient to establish a prima facie advice-of-counsel defense.

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

Panel: Chief Judge Traxler, Judges Gregory and Agee.

Argument Date: 12/09/2014

Date of Issued Opinion: 03/13/15

Docket Number: No. 13-4764

Decided: Affirmed by published opinion.

Case Alert Author: David Arnold, Univ. of Maryland Carey School of Law

Counsel: Brian D. Boone, ALSTON & BIRD LLP, Charlotte, 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, Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina; E. Bowen Reichert Shoemaker, ALSTON & BIRD LLP, Atlanta, Georgia, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Author of Opinion: Judge Gregory

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 01:35 PM     4th Circuit     Comments (0)  

  Professional Massage Training Center, Inc. v. Accreditation Alliance of Career Schools and Colleges -- Fourth Circuit
Headline: Where Credit Is Due: Quasi-Public Accreditation Agencies Must Be Given Deference

Area of Law: Administrative Law, Civil Procedure

Issue Presented: Whether the district court applied the proper standard of review when it overturned AACSC's decision not to renew PMTC's accreditation.

Brief Summary: Professional Massage Training Center, Incorporated ("PMTC") is a for-profit massage therapy school. Accreditation Alliance of Career Schools and Colleges ("AACSC") is a non-profit organization that accredits over 750 private institutions of higher learning that offer career-oriented programs. A school must be accredited to access federal student aid funding. AACSC accredited PMTC in 2000, but refused to re-accredit the school in 2011. PMTC sued in federal district court claiming, inter alia, that AACSC violated PMTC's common law due process rights. The district court agreed. After a four-day bench trial, the court awarded PMTC $400,000 in damages and ordered AACSC to accredit PMTC. AACSC appealed to the United States Court of Appeals for the Fourth Circuit.

On appeal, AACSC argued that the district court applied an improper standard of review of its decision not to re-accredit PMTC. The Fourth Circuit agreed, finding the district court improperly applied a de novo standard of review. The court stated that accreditation agencies function in a "quasi-public" capacity on behalf of the Secretary of Education. Accreditation agencies have wide-ranging expertise in highly specialized fields, which federal courts lack. Therefore courts must give deference to accreditation agencies in the same way they would an administrative agency. A federal court must not conduct a de novo review or substitute its judgment for that of the agency when examining an agency's decision. Nevertheless, accreditation agencies have a common law due process duty to employ "fair procedures when making decisions affecting their members." When hearing a common law due process claim against an accreditation agency, federal courts should focus on whether the agency's "internal rules provided a fair and impartial procedure" and whether the agency followed those rules when making its decision.

The Fourth Circuit found the district court went beyond examining procedural fairness and instead conducted a de novo review, supplanting AACSC's judgment and discretion with its own. When examined under the appropriate deferential standard, AACSC's decision did not violate PMTC's common law due process rights. AACSC's standards for accreditation were sufficiently clear for PMTC to understand the standards with which it must comply. Furthermore, AACSC repeatedly told PMTC how to become compliant and gave PMTC almost two years to do so before deciding to revoke accreditation.

Accordingly, the Fourth Circuit reversed the district court and remanded with instructions to find for AACSC and dismiss the case. The Fourth Circuit also affirmed the district court's dismissal of PMTC's other, non-common law due process claims.

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

Panel: Judges Wilkinson, Agee, and Harris.

Argument Date: 01/28/2015

Date of Issued Opinion: 03/24/15

Docket Number: Nos. 14-1086 and 14-1136

Decided: Affirmed in part, reversed in part, and remanded with instructions by published opinion.

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

Counsel: ARGUED: Craig C. Martin, Michael Anthony Scodro, JENNER & BLOCK, LLP, Chicago, Illinois, for Appellant/Cross-Appellee. Matthew Lorn Hoppock, DUNN & DAVISON LLC, Kansas City, Missouri, for Appellee/Cross-Appellant. ON BRIEF: Sarah A. Palmer, JENNER & BLOCK, LLP, Chicago, Illinois, for Appellant/Cross-Appellee. Ronald L. Holt, Julie G. Gibson, DUNN & DAVISON LLC, Kansas City, Missouri, for Appellee/Cross-Appellant. Mary E. Kohart, Dean R. Phillips, Gregory S. Voshell, Michelle L. Modery, ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C., Blue Bell, Pennsylvania; Kenneth J. Ingram, Thomas Mugavero, WHITEFORD TAYLOR PRESTON, LLP, Washington, D.C.; Ada Meloy, AMERICAN COUNCIL ON EDUCATION, Washington, D.C., for Amici Accreditation Review Commission on Education for the Physician Assistant, Accreditation Commission for Acupuncture and Oriental Medicine, Accreditation Council for Pharmacy Education, Accrediting Bureau of Health Education Schools, Incorporated, Accrediting Commission for Community and Junior Colleges-Western Association of Schools and Colleges, Accrediting Council for Continuing Education & Training, Accrediting Council for Independent Schools and Colleges, American Council on Education, Association of Specialized and Professional Accreditors, Association of Technology, Management, and Applied Engineering, Commission on Institutions of Higher Education of the New England Association of Schools and Colleges, Council for Accreditation of Counseling and Related
Educational Programs, Council for Higher Education Accreditation, Council for Podiatric Medication Education, Council on Education for Public Health, Council on Occupational Education, Distance Education and Training Council, Higher Learning Commission, The Middle States Commission on Higher Education, National Architectural Accrediting Board, Southern Association of Colleges and Schools Commission on Colleges, and Western Association of Schools and Colleges Senior College Commission. Shannen W. Coffin, Jeffrey M. Theodore, STEPTOE & JOHNSON LLP, Washington, D.C., for Amici American Council of Trustees and Alumni, Judicial Education Project, and The John William Pope Center for Higher Education Policy.

Author of Opinion: Judge Wilkinson

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 01:05 PM     4th Circuit     Comments (0)  

  United States v. Flores-Alvarado -- Fourth Circuit
Headline: Sentencing Based on Drug Quantity Requires Particularized Fact-Finding

Area of Law: Sentencing

Issue Presented: Whether the district court made sufficient factual findings on the drug quantity attributed to the defendant in calculating his sentence.

Brief Summary: Marco Antonio Flores-Alvarado and co-defendant Enrique Mendoza-Figueroa ran two related drug-trafficking organizations in North Carolina that bought and sold large amounts of marijuana and cocaine. Law enforcement officers investigating Flores-Alvarado conducted two raids at homes in North Carolina and Kentucky, neither of which was owned or controlled by Flores-Alvarado. Nearly 5,000 pounds of marijuana and over $1.8 million in drug proceeds were seized. Flores-Alvarado pled guilty to conspiracy to distribute and to possession with intent to distribute cocaine and marijuana.

Flores-Alvarado was held responsible for 3886.3 kilograms of marijuana and 136.125 kilograms of cocaine, which was converted to a grand total marijuana equivalent of 31,111.16 kilograms. These totals included the entire amount of drugs seized in the two house raids. The district court sentenced Flores-Alvarado to life imprisonment and a concurrent term of 480 months. He appealed, claiming the district court improperly considered the full amount of drugs seized in the raids when deciding his sentence.

Under the U.S. Sentencing Guidelines, the drug quantity attributed to a defendant is calculated by determining the quantities associated with the specific offense along with any relevant conduct, including criminal activity jointly undertaken by the defendant. The United States Court of Appeals for the Fourth Circuit held that in order to attribute to a defendant the acts of others in jointly-undertaken criminal activity, the acts must have been within the scope of the defendant's agreement and reasonably foreseeable to the defendant. A sentencing court must make particularized factual findings with respect to both.

In this case, the Fourth Circuit held that while the district court made particularized findings about foreseeability, it failed to make particularized findings about the scope of the criminal activity Flores-Alvarado agreed to jointly undertake. Therefore, the Fourth Circuit reversed and remanded for re-sentencing.

To read the full opinion, please click http://www.ca4.uscourts.gov/Op...34464.P.pdf">here.[/L]

Panel: Chief Judge Traxler, Judges Wynn and Harris

Argument Date: 12/11/2014

Date of Issued Opinion: 03/03/2015 (Amended 03/11/2015)

Docket Number: Case No. 13-4464

Decided: Reversed and remanded for re-sentencing by published opinion.

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

Counsel: Wayne Buchanan Eads, Raleigh, North Carolina, for Appellant. Yvonne Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Chief Judge Traxler

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 11:59 AM     4th Circuit     Comments (0)  

April 8, 2015
  Crane v. Johnson - Fifth Circuit
Headline: Fifth Circuit Dismisses Challenge to "Deferred Action for Childhood Arrivals" Immigration Policy.

Area of Law: Immigration; Federal Subject Matter Jurisdiction.

Issue Presented: Whether the plaintiffs - several immigration officers and the State of Mississippi - alleged injuries that were concrete and particularized enough to establish standing under Article III of the United States Constitution.

Brief Summary: Several Immigration and Customs Enforcement agents and deportation officers ("Agents") and the State of Mississippi filed this suit against the Secretary of the Department of Homeland Security and the directors of divisions within that agency in order to challenge a 2012 DHS directive setting forth a program of "Deferred Action for Childhood Arrivals." The Agents alleged that exercising deferred action violates federal law because the law requires them to detain all unauthorized aliens for the purpose of placing the aliens in removal proceedings. The State of Mississippi alleged that the deferred action has caused additional aliens to remain in the state and thereby causes the state to spend money on providing social services. The U.S. District Court for the Northern District of Texas dismissed Plaintiffs' claims for lack of subject matter jurisdiction. The U.S. Court of Appeals for the Fifth Circuit concluded that neither the Agents nor the State of Mississippi had demonstrated the concrete and particularized injury required to give them standing to maintain the suit, and it accordingly affirmed the district court's dismissal.

Extended Summary: Plaintiffs are several Immigration and Customs Enforcement agents and deportation officers ("Agents") and the State of Mississippi. They filed suit against the Secretary of the Department of Homeland Security and the directors of divisions within that agency, in their official capacities, challenging DHS's 2012 directive providing for the deferral of removal proceedings against certain categories of aliens brought to the United States as children. The program is known as "Deferred Action for Childhood Arrivals," or DACA. The Agents alleged that exercising deferred action violates federal law because the law requires them to detain all unauthorized aliens for the purpose of placing the aliens in removal proceedings. The State of Mississippi alleged that the deferred action has caused additional aliens to remain in the state and thereby causes the state to spend money on providing social services.

Defendants filed a motion to dismiss asserting that Plaintiffs had not alleged an adequate injury-in-fact that can be redressed by a favorable ruling and therefore did not have standing to bring the suit. The Agents asserted three distinct injuries: (1) a violation of their oaths of office; (2) the burden of compliance with the Directive; and (3) "being compelled to violate a federal statute . . ., on pain of adverse employment action if they do not." The district court found that violating one's oath is not a sufficient injury-in-fact to confer standing, nor is the burden of complying with the Directive. However, the district court found that the threat of an adverse employment action if the Agents refuse to follow the Directive is a sufficient injury to support standing. Mississippi asserted that the cost to the state in providing services to DACA beneficiaries is an adequate injury to support standing. The district court held that Mississippi's allegation of a fiscal burden was too speculative because the only support the state provided for this burden was a 2006 report which estimated the annual cost of immigration six years before the DACA program was instituted. There was no concrete evidence that Mississippi's costs had increased or will increase as a result of DACA.

The district court ultimately held that the Agents had not pursued their remedies under the Civil Service Reform Act, and, thus, the district court lacked subject matter jurisdiction over their claims.

On appeal, the U.S. Court of Appeals for the Fifth Circuit agreed with the district court that Mississippi had failed to allege a sufficiently concrete and particularized injury that would give it standing to challenge DACA. The Fifth Circuit also agreed with the district court and held that the first two injuries listed by the Agents had failed to allege a sufficiently concrete and particularized injury that would give standing to challenge DACA.

However, with regard to the third injury asserted by the Agents, the Fifth Circuit disagreed with the district court that these allegations were sufficient to support the Agents' claims of injury-in-fact. The unlikelihood of an agency sanction against an agent for exercising discretion expressly granted under the directives, together with the fact that no sanctions or warning of sanctions had been issued for that exercise, persuaded the Fifth Circuit that the Agents are not under a "certainly impending" threat of an adverse personnel action that is sufficiently concrete and particularized to qualify as an injury-in-fact that gives the Agents standing. As such, the Fifth Circuit affirmed the district court's dismissal of all of Plaintiffs' claims.

Judge Owen wrote in concurrence only to note that in order to establish standing with respect to some claims, it is not always necessary to present concrete evidence that an injury has occurred or will, beyond question, occur.

Note that a separate challenge to a more recently announced expansion of deferred action is also pending before the Fifth Circuit, but the appeal summarized here concerned only the 2012 DACA program.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/14/14-10049-CV0.pdf.

Panel: Circuit Judges King, Davis, and Owen

Argument Date: 2/3/2015

Date of Issued Opinion: 4/7/2015

Docket Number: No. 14-10049

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Kris Kobach, Immigration Reform Law Institute, for Plaintiffs-Appellants Cross-Appellees Crane, Engle, Carroll, Diaz, Garza, Luciano, Rebstock, Silva, Martin, Doebler, and the State of Mississippi. Jeffrey Clair, U.S. Department of Justice, for Defendants-Appellees Cross-Appellants Johnson, Secretary, Department of Homeland Security; Sandweg, in His Official Capacity as Director of Immigration and Customs Enforcement; Scialabba, in Her Official Capacity as Acting Director of United States Citizenship and Immigration Services.

Author of Opinion: Judge Davis (Judge Owen concurring)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 04/08/2015 09:26 PM     5th Circuit     Comments (0)  

  Beyond Systems v. Kraft Foods, Inc. -- Fourth Circuit
Headline: Intentional Exposure to Spam E-Mail Does Not Give Right to Sue

Areas of Law: Internet, Tort, Volenti Non Fit Injuria

Issues Presented: (1) Whether Beyond Systems was an internet service provider, and thus had standing to sue under the California and Maryland anti-spam legislation; (2) whether Beyond Systems was a "bona fide" internet service provider, or rather had invited its own purported injury and thus could not recover for it.

Brief Summary: Beyond Systems, Inc. is a Maryland corporation that provides email and internet service access to a limited number of customers. In 2008, it sued Kraft Foods, Inc. in Maryland, under California's and Maryland's anti-spam statutes based upon several hundred e-mails which it alleged were unlawful spam. After granting partial summary judgment to Kraft Foods based on a number of e-mails that were the subject of prior litigation, the district held that Beyond Systems was an internet service provider and had standing to sue, but that it was barred from recovery under the common law doctrine of volenti non fit injuria ("to a willing person it is not a wrong").

On appeal, the United States Court of Appeals for the Fourth Circuit agreed that Beyond Systems' had standing to sue as an internet service provider. The Fourth Circuit then considered whether the company's history of litigation activities and litigation strategy precluded it from recovery. As both the Maryland and California anti-spam statutes sounded in tort, the court looked to common law tort principles as part of the causes of action these statutes create. It is a general maxim of tort law that "no wrong is done to one who consents." Thus, one who invites injury is barred from later recovering for the injurious conduct or the harm resulting from it.

Here, the Fourth Circuit held that Beyond Systems had developed hidden web pages and embedded e-mail addresses solely for the purpose of attracting spam e-mail. It also increased its server storage capacity to archive large volumes of spam messages, and retained them specifically to provide grounds for litigation. Indeed, the court found that in recent years, spam-trap-based litigation accounted for 90% of Beyond Systems' income. The court found the evidence was "overwhelming" that Beyond Systems had consented to the harm by collecting large amounts of spam for the specific purpose of suing the sender, and thus, was barred from recovering under the Maryland and California anti-spam statutes.

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

Panel: Judges Niemeyer, Wynn, and Thacker

Argument Date: 10/29/2014

Date of Issued Opinion: 02/04/15

Docket Number: No. 13-2137

Decided: Affirmed by published opinion.

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

Counsel: Richard Kennon Willard, STEPTOE & JOHNSON LLP, Washington, D.C., for Appellant. Darrell J. Graham, ROESER BUCHEIT & GRAHAM LLC, Chicago, Illinois; Ari Nicholas Rothman, VENABLE LLP, Washington, D.C., for Appellees. ON BRIEF: Stephen H. Ring, LAW OFFICES OF STEPHEN H. RING, P.C., Gaithersburg, Maryland; Michael S. Rothman, LAW OFFICE OF MICHAEL S. ROTHMAN, Rockville, Maryland; Jill C. Maguire, Benjamin B. Watson, STEPTOE & JOHNSON LLP, Washington, D.C., for Appellant. John K. Roche, PERKINS COIE LLP, Washington, D.C.; John E. Bucheit, ROESER BUCHEIT & GRAHAM LLC, Chicago, Illinois, for Appellees Kraft Foods, Incorporated, Vict. Th. Engwall & Co., and Kraft Foods Global, Incorporated. J. Douglas Baldridge, Lisa Jose Fales, VENABLE LLP, Washington, D.C., for Appellee Connexus Corporation.

Author of Opinion: Judge Wynn

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/08/2015 08:15 PM     4th Circuit     Comments (0)  

  Makdessi v. Fields -- Fourth Circuit
Headline: Fourth Circuit Rules Deliberate Indifference Can Be Established with Only Circumstantial Evidence

Areas of Law: Constitutional Law, Criminal Law

Issues Presented: Whether Makdessi actually preserved his appeal. Whether prison officials, who were the subjects of the appeal, were deliberately indifferent to the substantial risk of harm Makdessi faced while incarcerated.

Brief Summary: Adib Makedessi is serving a life sentence for murdering his wife and lover; then fleeing to Russia with the $700,000 insurance payout he collected after their deaths. Makdessi brought suit, alleging that prison officials at the Virginia Department of Corrections were deliberately indifferent to the numerous complaints he lodged regarding the physical and sexual abuse he was suffering while imprisoned. Makdessi was repeatedly raped and assaulted by his cellmate and was not transferred to a new cell despite frequent requests to the officers on duty. The U.S. District Court adopted the magistrate judge's recommendation that because the prison officials did not actually know of the substantial risk of harm Makdessi faced, his deliberate indifference claim could not succeed.

On appeal, the United States Court of Appeals for the Fourth Circuit first ruled that Makdessi failed to preserve his appeal against the prison officers because he failed to object to the magistrate judge's ruling that they should be dismissed from the case. The court then reviewed Makdessi's contention that the district court's opinion failed to consider whether the degree of subjective knowledge necessary to prove deliberated indifference could be shown through circumstantial evidence instead of just by direct knowledge of the risk. The court cited Farmer v. Brennan in support of its ruling that failure to give formal notice of the substantial risk is not dispositive if it can be shown through circumstantial evidence that the defendants knew about the risk and failed to do anything to protect the inmate. The Fourth Circuit then listed various facts from the record that could have sufficed to show there was enough circumstantial evidence for the court to reasonably believe the officers knew about the serious risk Makdessi faced but failed to protect him.

Finding that the district court failed to appreciate that Makdessi could have proven his case based on the provided circumstantial evidence, the court vacated the dismissal of the deliberate indifference claims against the remaining defendants and remanded for further review.

Judge Shedd wrote a dissenting opinion arguing that the magistrate and district court judges properly analyzed Makdessi's Eighth Amendment claim. Judge Shedd disagreed with the majority on the standard of review. In his opinion, the standard applied by the majority was more like a summary judgment review than the proper standard of accepting the trial judge's factual findings unless they are clearly erroneous. Judge Shedd argued that the majority failed to take into account the factual findings determined by the lower court, and the burden Makdessi held in proving his Eighth Amendment claim. Judge Shedd further found that the fact that the district court opinion noted that deliberate indifference can be shown through circumstantial evidence demonstrates that the lower court applied the correct standard. Judge Shedd also disagreed with the majority's decision to remand, stating that the record shows the judge below already considered the evidence under the proper legal standard and made the appropriate factual findings in concluding Makdessi did not meet his burden.

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

Panel: Judges Wynn, Motz, and Shedd

Argument Date: 10/28/2014

Date of Issued Opinion: 03/12/2015

Docket Number: No. 13-7606

Decided: Vacated and remanded by published opinion.

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

Counsel: ARGUED: Stephen William Kiehl, COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Trevor Stephen Cox, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Daniel Suleiman, COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Mark R. Herring, Attorney General of Virginia, Cynthia E. Hudson, Chief Deputy Attorney General, Stuart A. Raphael, Solicitor General of Virginia, Linda L. Bryant, Deputy Attorney General, Richard C. Vorhis, Senior Assistant Attorney General, Kate E. Dwyre, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

Author of Opinion: Judge Wynn

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/08/2015 08:11 PM     4th Circuit     Comments (0)  

  Prieto v. Clarke -- Fourth Circuit
Headline: Capital Prisoner Lacks Procedural Due Process Rights Because Virginia Statute Expressly Disclaims Liberty Expectation

Area of Law: Procedural Due Process

Issues Presented: Whether a capital prisoner was provided with adequate process under Virginia law, when he was indefinitely assigned to death row with its highly restrictive, unreviewable conditions of confinement. Whether the application of Virginia prison regulations and polices imposed an atypical and significant hardship on capital prisoners in relation to ordinary prison life.

Extended Summary: Alfredo Prieto was confined to Virginia's death row following his conviction for two capital murders. For six years, Prieto has been deprived of almost all human contact - he receives minimal visitation and remains in a small single cell for all but five hours a week. An operating procedure of the Virginia Department of Corrections states, "Any offender sentenced to Death will be assigned directly to Death Row . . . . No reclassification will be completed." This policy essentially mandates indefinite placement on the Row, with no process for review of the offender's classification or living conditions.

Prieto brought this action pro se, alleging that his indefinite confinement on death row violated his procedural due process rights and that the conditions themselves violate his Eighth Amendment rights. The District Court dismissed Prieto's Eighth Amendment claim, but found the procedural due process claim plausible and appointed Prieto counsel. The District Court granted Prieto's motion for summary judgment and issued an injunction, noting that the conditions on Virginia's death row were uniquely severe and that Prieto had established a due process liberty interest in avoiding them. The court also found Prieto was not provided adequate process based on his automatic and permanent assignment.

Virginia prison officials appealed the issuance of the injunction. The United States Court of Appeals for the Fourth Circuit held that Prieto had not established a protected liberty interest.

The Fourth Circuit rejected Prieto's contention that harsh and atypical confinement conditions alone give rise to a liberty interest. Instead, the Fourth Circuit undertook the two-part analysis established by the U.S. Supreme Court in Wilkinson v. Austin. In determining if a prisoner has established a liberty interest in certain conditions of confinement, the Fourth Circuit said first, the "threshold question" is whether such an interest "arise[s] from the constitution, state policies, or regulations." The court found that Prieto had no state-created liberty interest because Virginia policy expressly and unambiguously disclaimed a due process expectation or right on the part of Virginia capital offenders.

The Fourth Circuit then chose to address the second prong of the test from Wilkinson despite the fact that any procedural due process violation was foreclosed by Prieto's lack of a liberty interest. The second prong of the Wilkinson rule says that an inmate must establish that the nature of his prison conditions impose an atypical and significant hardship in relation to the ordinary incidents of prison life. The Fourth Circuit found that Prieto could only be deprived of that to which he was entitled. Here, he was entitled to the conditions of confinement based on his conviction and sentence. Therefore, the court stated that the ordinary incidents of prison life for Prieto were the incidents provided for capital offenders in Virginia.

In dissent, Judge Wynn would have affirmed the District Court's judgment because he believed the language from Wilkinson meant the written regulations and policies governing the conditions of confinement are not the linchpins for finding a liberty interest. He found that Wilkinson stands for the premise that prisoners have a liberty interest in avoiding indefinite, highly restrictive imprisonment such as the conditions imposed on Prieto. Therefore, Judge Wynn found that Prieto's automatic, permanent, and unreviewable placement with highly restrictive conditions on Virginia's death row violated his procedural due process rights.

To read the full text of this opinion, please click here. ">http://www.ca4.uscourts.gov/Op...Published/138021.P.pdf

Panel: Judges Motz, Shedd, and Wynn.

Argument Date: 10/28/2014

Date of Issued Opinion: 03/10/2015

Docket Number: No. 13-8021

Decided: Reversed by published opinion. Judge Motz wrote the majority opinion, in which Judge Shedd joined. Judge Wynn wrote a dissenting opinion.

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

Counsel: ARGUED: Stuart Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Michael E. Bern, LATHAM & WATKINS LLP, Washington, D.C., for Appellee. ON BRIEF: Mark R. Herring, Attorney General of Virginia, Cynthia E. Hudson, Chief Deputy Attorney General, Linda L. Bryant, Deputy Attorney General, Public Safety & Enforcement, Richard C. Vorhis, Senior Assistant Attorney General, Kate E. Dwyre, Assistant Attorney General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Abid R. Qureshi, Katherine M. Gigliotti, Daniel I. Levy, LATHAM & WATKINS LLP, Washington, D.C., for Appellee. Rebecca K. Glenberg, Hope R. Amezquita, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia; Amy Fettig, Helen Vera, AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISON PROJECT, Washington, D.C., for Amici Curiae.

Author of Opinion: Judge Motz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/08/2015 08:00 PM     4th Circuit     Comments (0)  

  Nezirovic v. Holt -- Fourth Circuit
Headline: War Refugee Can't Escape International Prosecution Through Habeas Corpus

Area of Law: International Law, Habeas Corpus, Extradition

Issue Presented: Is Nezirovic's extradition time-barred or precluded by the political offense exception under the Treaty for the Mutual Extradition of Fugitives from Justice?

Brief Summary: Almaz Nezirovic came to the United States in 1997 as a war refugee from Bosnia and Herzegovina. In 2012, Bosnian authorities requested his extradition to answer allegations of inhumane treatment and torture against civilians during the Bosnian War. A magistrate judge conducted an extradition proceeding and found there was sufficient evidence a crime had been committed and therefore Nezirovic should be extradited under the Treaty between the United States and Serbia for the Mutual Extradition of Fugitives from Justice ("the Treaty"). Nezirovic's petition for a writ of habeas corpus was denied and he appealed two issues to the United States Court of Appeals for the Fourth Circuit.

First, Nezirovic argued the Treaty prohibits extradition for offenses that would be time-barred by the statute of limitations applied to the equivalent U.S. law. Nezirovic argued that since the alleged crimes were committed two years before the Torture Act was enacted, the most analogous U.S. law would be assault. Since the statute of limitations for assault is only five years, Nezirovic argued that his extradition was time-barred. The court rejected his claim, finding that the law applied is the most analogous law at the time the extradition claim is made, not the law in effect at the time the offense occurred. The court also stated Ex Post Facto principles were not violated because U.S. constitutional protections do not apply to international prosecutions. The Torture Act has an indefinite limitation and thus the extradition was proper.

Nezirovic next argued that his actions were "political offenses" that are exempt from extradition under the Treaty. The Fourth Circuit considered whether Nezirovic's actions were "relative" political offenses incidental to or in furtherance of a violent uprising. Considering the totality of the circumstances, the Fourth Circuit found that Nezirovic's actions were not political offenses because his alleged victims were civilians.

The Fourth Circuit affirmed the district court's decision to deny Nezirovic's extradition challenge.

To read the full opinion, please click here.

Panel: Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit Judges.

Argument Date: December 10, 2014

Date of Issued Opinion: February 25, 2015

Docket Number: No. 14-6468

Decided: Affirmed by published opinion.

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

Counsel: Andrew Wagner Childress, PAFFORD, LAWRENCE & CHILDRESS, PLLC, Lynchburg, Virginia, for Appellant. Elizabeth G. Wright, OFFICE OF THE UNITED STATES ATTORNEY, Harrisonburg, Virginia, for Appellees. ON BRIEF: Timothy J. Heaphy, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellees

Author of Opinion: Judge Keenan

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/08/2015 07:39 PM     4th Circuit     Comments (0)  

April 7, 2015
  Survivors Network of Those Abused by Priests, Inc. v. Joyce - Eighth Circuit
Headline Eighth Circuit panel holds that Missouri's House of Worship Protection Act violates the First Amendment right to free speech

Area of Law First Amendment

Issue(s) Presented Whether the district court properly upheld a Missouri statute prohibiting certain types of speech within or near a house of worship.

Brief Summary Appellant non-profit organizations and individuals regularly gather outside of Catholic churches to address sexual abuse by priests and other issues of public concern. They raised a facial First Amendment challenge to Missouri's House of Worship Protection Act (the "Act"), alleging that as written, the Act infringes on freedom of speech. The Act provides that a person commits a crime when he or she "intentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services." The district court upheld the Act and granted summary judgment to the defendants, and the plaintiffs appealed.

Appellants argued on appeal that the Act's prohibition on using "profane discourse, rude or indecent behavior" chilled their expression and interfered with their ability to speak in public locations where their intended audience - church officials and parishioners - could be reached. The Eighth Circuit noted that the government's ability to regulate speech in traditionally public spaces, as the Act attempts to do by regulating speech "near" houses of worship, is very limited. In examining the constitutionality of the Act, the Eighth Circuit focused on whether the restriction on speech was content based, and thus subject to strict scrutiny, or content neutral (with only time, place, and manner restrictions), and thus subject to intermediate scrutiny. The Court held that on its face, the Act's prohibition was content based. To enforce the Act, officials would need to decide whether a protester was intentionally and unreasonably disturbing a house of worship, and also whether the message was profane, rude or indecent. Because these distinctions would be based on the nature of the message, the Act was a content based regulation.

The Eighth Circuit further found that, assuming the government interest in protecting free exercise of religion is compelling, the Act's content based prohibition on profane or rude speech was not necessary to protect that freedom. The Act could not survive strict scrutiny because it did not merely seek to protect houses of worship from disruption, but also attempted to limit the content of certain messages. Content neutral alternatives, such as noise regulations, were a less intrusive alternative.

The full text of the opinion may be found at Text

Panel Circuit Judges Loken, Murphy, and Wollman

Date of Issued Opinion March 9, 2015

Decided Reversed and remanded

Docket Number 13-3036

Counsel Anthony Rothert for Appellants and John Andrew Hirth for Appellees

Author Circuit Judge Murphy

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

    Posted By: Joelle Larson @ 04/07/2015 10:21 AM     8th Circuit     Comments (0)  

April 4, 2015
  E.E.O.C. v. Freeman, et al. -- Fourth Circuit
Headline: Fourth Circuit Scolds EEOC for Relying on a Not-So-Expert Witness

Areas of Law: Evidence

Issue Presented: Whether an expert report containing numerous errors is admissible under Federal Rule of Evidence 702.

Brief Summary: In 2008, the Equal Employment Opportunity Commission (EEOC) began investigating the Freeman Company's credit check and criminal history employment policies after a rejected applicant filed a charge of discrimination with the EEOC. The EEOC ultimately found that Freeman's background check policies violated Sections 706 and 707 of Title VII and filed suit against Freeman, alleging that the background checks had an unlawful disparate impact on black and male applicants. When the case moved into the discovery phase, the EEOC produced an expert report by industrial/organizational psychologist Kevin Murphy. After the expert disclosure deadline passed, the EEOC attempted to produce amended reports from Murphy on three separate occasions, and moved to file a sur-reply. The district court denied the EEOC's motion, and granted summary judgment to Freeman after excluding Murphy's testimony as unreliable under Federal Rule of Evidence 702 (a rule governing the admissibility of expert evidence).

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision. While not ruling on the merits of the EEOC's claims, the court found that the "alarming number of errors and analytical fallacies" identified in Murphy's report made it impossible to rely on the report's conclusions. While some errors were fixed in the subsequently filed supplemental reports, Murphy still did not make corrections to his database despite claims of doing so, and introduced new errors into the report. Errors in Murphy's report included omitted information, double-counted results, and incorrect data. In addition, Murphy failed to include much of the raw data provided by Freeman in his report, despite the fact that Murphy purported to analyze all background checks with verified outcomes. Accordingly, the court found the district court did not abuse its discretion in excluding Murphy's analysis as unreliable, noting that the number of mistakes and omissions rendered Murphy's analysis "outside the range where experts may reasonable differ."

In a concurring opinion, Judge Agee reiterated the majority's concerns and stressed that the EEOC's work of serving the public interested was jeopardized by Murphy's missteps. Judge Agee was also troubled by the fact that the EEOC used Murphy after his work had been roundly rejected in other circuits for similar deficiencies, including in other EEOC cases. Judge Agee noted that the EEOC owes a duty to the public and a duty to employers, and concluded that the EEOC's behavior in this case failed its duty to employers - its duty to reasonably investigate charges, conciliate in good faith, and cease enforcement attempts after learning an action lacks merit.

To read the full opinion, please click here.

Panel: Judges Gregory, Agee, and Diaz

Argument Date: 10/29/2014

Date of Issued Opinion: 02/20/2015

Docket Number: Case No. 13-2365

Decided: Affirmed by published opinion.

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

Counsel: Anne Noel Occhialino, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Donald R. Livingston, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellee. ON BRIEF: P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Jennifer S. Goldstein, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. W. Randolph Teslik, Hyland Hunt, John T. Koerner, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellee. Meriem L. Hubbard, Joshua P. Thompson, Jonathan W. Williams, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amicus Pacific Legal Foundation. Karen R. Harned, Elizabeth Milito, NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, Washington, D.C., for Amicus National Federal of Independent Business Small Business Legal Center. Rae T. Vann, NORRIS, TYSSE, LAMPLEY & LAKIS, LLP, Washington, D.C., for Amicus Equal Employment Advisory Council. Deborah R. White, RETAIL LITIGATION CENTER, INC., Arlington, Virginia, for Amicus Retail Litigation Center. Rachel L. Brand, Steven P. Lehotsky, NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C.; Eric S. Dreiband, Emily J. Kennedy, JONES DAY, Washington, D.C., for Amicus Chamber of Commerce of the United States of America.

Author of Opinion: Judge Gregory

Concurring Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 04:26 PM     4th Circuit     Comments (0)  

  United States v. Burns -- Fourth Circuit
Headline: Fourth Circuit Fires Warning Shot to Defendants Accepting Responsibility at Sentencing

Area of Law: Criminal Law

Issue Presented: Whether the district court improperly denied an acceptance of responsibility sentencing reduction for a defendant who argued the requisite mens rea for the relevant conduct of attempted murder, rather than aggravated assault, was lacking.

Brief Summary: On February 1, 2013, Otis Eugene Burns and Eric Poole were involved in an altercation at a convenience store. Later that same evening, Burns went to Poole's ex-girlfriend's apartment looking for Poole, and fired a shot into the air with his handgun before leaving. The next day, Burns told his ex-fiance he wanted "to kill" Poole for "jumping him at the store." A few hours later, Burns spotted Poole in the driver's seat of a parked vehicle with four other passengers. Burns approached Poole and said, "You thought that was funny from last night, what happened, what you did at the store. I told you I was going to kill you." Burns returned to his own car to retrieve his gun and told his ex-fiancé, "I'm going to shoot him." The front seat passenger exited Poole's vehicle, but Poole remained in the driver's seat. Burns approached the open passenger door and fired one shot into the car, hitting the now empty front passenger's seat. Poole fled his vehicle on foot, and Burns chased him in his own car. Burns fired another shot into the air, before he stopped chasing Poole.

Burns pled guilty to being a felon in possession of a firearm. The Presentence Investigation Report recommended a base offense level of 27. This base offense level was calculated by cross-referencing the offense guideline for attempted murder based on the events of the shooting. Burns objected to the cross-reference and argued the appropriate cross-reference was to aggravated assault instead. If calculated as Burns suggested, his sentencing guideline range would have been reduced from 92-115 months imprisonment to 70-87 months imprisonment. At sentencing, Burns argued that he did not intend to cause Poole bodily harm, and the shot was just "a warning shot." The district court disagreed due to the government's overwhelming evidence and denied Burns the downward sentence adjustment to aggravated assault.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's ruling. After examining the relevant Guidelines sections and the district court's application of those sections, the majority considered whether Burns could receive a downward adjustment (from his base offense level of 27) for his acceptance of responsibility. Section 3E1.1 cmt. n.1 of the U.S. Sentencing Guidelines provides that a defendant is entitled to an acceptance-of-responsibility reduction for, "truthfully admitting or not falsely denying any relevant conduct." Relevant conduct is not specifically defined by the Guidelines, but is instead determined by considering factors like the "acts and omissions committed." While Burns opined that his relevant conduct only encompassed his physical acts, the Fourth Circuit disagreed and found the relevant "acts" must include more than just physical movement. To hold otherwise, the court found would make it difficult to cross-reference crimes of attempt. Therefore, when Burns denied that his acts and omissions included shooting with the intent to kill, he denied relevant conduct attributable to his actions. Falsely denying said conduct was inconsistent with his acceptance of responsibility and therefore the sentence reduction would be inappropriate.

To read the full opinion, please clickhttp://www.ca4.uscourts.gov/Op...34662.P.pdf">here.[/L]

Panel: Judges Wilkinson, Gregory, and Duncan

Argument Date: 12/11/2014

Date of Issued Opinion: 02/13/2015

Docket Number: Case No. 13-4662

Decided: Affirmed by published opinion.

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

Counsel: ARGUED: Sophia L. Harvey, LIAO HARVEY PC, Winston-Salem, North Carolina, for Appellant. Graham Tod Green, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Author of Opinion: Judge Duncan

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 04:23 PM     4th Circuit     Comments (0)  

  Covol Fuels No. 4 LLC v. Pinnacle Mining Co. LLC -- Fourth Circuit
Headline: The "Right Way" for Courts to Interpret the "Right of Way Reasonably Needed"

Areas of Law: Contract, Tort

Issues Presented: Whether the terms of a contract were sufficiently ambiguous to establish a genuine issue of material fact. Whether the gist of the action doctrine barred tort claims because the claims were simply breach of contract claims masquerading as tort.

Extended Summary: Covol Fuels No. 4 ("Covol") and Pinnacle Mining Company ("Pinnacle") were parties to a five-year business agreement whereby Covol was to take over coal fine recovery operations at the Pinnacle mine in West Virginia. Under the terms of the agreement Pinnacle disclaimed any representation or warranty as to the character or quality of the coal fines and was required to provide Covol with "any right-of-way reasonably needed" for Covol to transport the refuse material. Covol was authorized to unilaterally terminate the contract if recovery operations became economically unfeasible.

After coal is mined, it is refined through a wash process. This wash process strips the extracted coal from any waste material. Small quantities of coal are left in the waste material that is separated out. These quantities, known as coal fines, have commercial value. At the Pinnacle mine in West Virginia, after the wash process, waste material was pumped through a slurry line into an impoundment pond. Covol would then use a dredge machine to collect the coal fines from the pond. Covol paid $14 million upfront and an additional $4 million in renovations for the facilities and equipment used for coal fines extraction. However, the dredging machine used by Covol could only reach down 25 feet into the 200-foot impoundment. Therefore, the water level of the impoundment was pertinent to Covol's success in extracting and selling coal fines.

While the initial Mine Safety and Health Administration plan required that any dredging of the impoundment be performed concomitant with an incremental lowering of the water level, Pinnacle adopted a protocol (to comply with West Virginia regulations for management of selenium pollution) that prevented Pinnacle from lowering the water level of the impoundment two years into the agreement. Also, in 2011, Pinnacle upgraded its wash plant, causing the quality of coal fines left after the wash to be significantly lowered. That year, due to the stagnant water level and low quality coal fines, it became economically unfeasible for Covol to continue coal fines recovery operations at the Pinnacle mine.

Covol filed suit against Pinnacle in 2012, alleging claims for 1) breach of contract based on both the terms of the agreement and the implied covenant of good faith and fair dealing; 2) a tort claim for fraudulent concealment; 3) a tort claim for negligent misrepresentation; and 4) a claim for unjust enrichment. Pinnacle was awarded summary judgment on all counts. The District Court found the contract unambiguous. Because the contract's natural meaning did not give Covol the right to access material through a lowering of the water level in the impoundment, the claim for breach of the implied covenant of good faith and fair dealing could not stand. With regard to the two torts claims, the court held that both claims were barred by the gist of the action doctrine. Finally, the court determined that the agreement was an express contract that could not be the basis of an unjust enrichment claim.

Covol appealed its breach of contract claim and both tort claims to the United States Court of Appeals for the Fourth Circuit. As to Covol's breach of contract claim, the Fourth Circuit held that the language in the agreement that Pinnacle must "provide... any right of way reasonably needed by Covol to transport the Refuse Material from the impoundment" could be interpreted in at least three ways. Because the language was ambiguous, the Fourth Circuit found extrinsic evidence should have been considered to determine Pinnacle's duties, and therefore, there was a genuine issue of material fact to be resolved by the trier of fact on remand. The Fourth Circuit held that since Covol had raised a genuine issue of material fact as to the terms of the agreement, summary judgment should not have been granted on the claim for breach of the implied covenant of good faith and fair dealing.

Finally, as to Covol's tort claims of negligent misrepresentation and fraudulent concealment, the Fourth Circuit agreed with the lower court that those claims were barred by the gist of the action doctrine. This doctrine prevents a litigant from bringing tort claims when the conduct complained of is based in contract. The court found that both tort claims simply recast Covol's claim for breach of contract. Therefore, the court affirmed the award of summary judgment on the tort claims and vacated the award for summary judgment with respect to Covol's claim for breach of contract.

In dissent, Judge Floyd found that nothing in the contract, including the right-of-way provision, required Pinnacle to lower the level of the impoundment. Judge Floyd found the majority's interpretation of the term right-of-way to be anything but ordinary, and therefore, would have affirmed the lower court's determination in full.

To read the full opinion, please click here.

Panel: Judges King and Floyd, and Senior Judge Davis

Argument Date: 01/28/2015

Date of Issued Opinion: 03/03/2015

Docket Number: Case No. 14-1395

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

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

Counsel: ARGUED: Thomas Vincent Flaherty, FLAHERTY SENSABAUGH BONASSO PLLC, Charleston, West Virginia, for Appellant. Timothy J. Downing, ULMER & BERNE LLP, Cleveland, Ohio, for Appellee. ON BRIEF: Alan L. Sullivan, James D. Gardner, SNELL & WILMER L.L.P., Salt Lake City, Utah, for Appellant. Wm. Scott Wickline, Christopher D. Pence, HARDY PENCE PLLC, Charleston, West Virginia; Joseph A. Castrodale, Paul R. Harris, Matthew T. Wholey, ULMER & BERNE LLP, Cleveland, Ohio, for Appellee.

Author of Opinion: Judge King

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 04:17 PM     4th Circuit     Comments (0)  

  United States v. Bran -- Fourth Circuit
Headline: Fourth Circuit's Consecutive Statutory Sentencing Scheme Leaves MS-13 Leader Coming Up Short

Area of Law: Criminal Law

Issue Presented: Whether the district court erred by denying the appellant's motion for judgment of acquittal on Count 3 -- use of a firearm during a crime of violence causing death to another -- and by imposing a mandatory consecutive sentence for the same Count 3 conviction.

Brief Summary: José Armando Bran, i.e. "Pantro," was convicted of five criminal counts relating to his involvement and leadership in the Richmond Sailors Set, a violent clique of La Mara Salvatrucha ("MS-13"). At trial, the government presented evidence that in July of 2011, Bran ordered the murder of a fellow gang member who was believed to be an informant for a rival gang. Bran also provided the firearm used in the murder and instructed another individual to ensure the order was carried out.

Regarding Count 3, the government charged Bran with violating three criminal statutes: 18 U.S.C. §924(c)(1)(A), 18 U.S.C. §924(j)(1), and 18 U.S.C. §2. Section 924(c)(1)(A), which "prohibits the use or carrying of a firearm in relation to a crime of violence . . . or the possession of a firearm in furtherance of such crimes" (violation of the statute "carries a mandatory minimum term of five years imprisonment," which must run consecutively to any other sentence). Furthermore, section 924(j)(1) provides that a person who causes the murder of another by firearm shall be punished by death, imprisoned for life, or a term of years. The verdict forms instructed that if the jury returned a general verdict for Count 3, it had to then answer a three-part special interrogatory. The jury returned guilty verdicts on all five counts, however, in the special interrogatories, the jury merely found that Bran aided or abetted another to cause a firearm to be discharged in relation to a crime of violence, not that Bran aided or abetted another to use or carry a firearm in relation to a crime of violence. Thereafter, Bran moved for judgment of acquittal, which the district court denied. At sentencing the court imposed a life sentence for violation of §924(j) that was set to run consecutively to the sentences imposed for the remaining four counts. Bran appealed, arguing that the district court erred in denying his motion for judgment of acquittal and that the court erred in interpreting §924(j) to require a mandatory consecutive sentence.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's ruling. The majority quickly dismissed Bran's sufficiency claim, noting the jury was presented with substantial evidence to sustain a conviction under §924(j). The court also noted that Bran's argument ignored the fact the jury returned a general verdict of guilt for Count 3, which was sufficient to uphold the 924(j) conviction. The special finding in the interrogatory merely supported this conviction. With regard to the mandatory consecutive sentencing issue, all circuit courts except the Eleventh Circuit have held that a sentence imposed for a violation of §924(j) must run consecutively to other sentences due to Congressional intent. United States v. Berrios, 676 F.3d 118, 143 (3d Cir. 2012). The court determined that reading 924(j) in any other way than to suggest consecutive sentencing would be absurd as "the central reason for Congress's choice of language in writing [§924(j)] - 'during the course of a violation of [§924(c)]' - was to ensure that separating out subsection (j) from subsection (c) did not deprive the law of a coherent sentencing scheme." Moreover, the majority noted that because a §924(j) violation includes language from a §924(c) violation, the defendant could be placed in a more lenient sentencing scheme; allowing for an absurd result.

Judge King dissented in part, stating that nothing in either §924(c) or §924(j) mandates a consecutive sentencing scheme; accordingly, the Eleventh Circuit's reasoning should be applied instead.

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

Panel: Judges King, Shedd and Agee.

Date of Issued Opinion: 01/ 22/2015 (amended 01/ 23/2015)

Docket Number: Case No. 13-4634

Decided: Affirmed by published opinion.

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

Counsel: ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, Roderick C. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Author of Opinion: Judge Shedd; Judge King, dissenting in part.

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 04:11 PM     4th Circuit     Comments (0)  

  Jacobs v. N.C. Admin. Office of the Courts, et al. -- Fourth Circuit
Headline: Face the Facts--Disability Discrimination Case Remanded for Trial After Lower Court Misapplies Summary Judgment Standard

Areas of Law: Civil Procedure, Employment Law

Issues Presented: Whether district court erred in granting summary judgment to employer in a disability discrimination lawsuit when parties disagreed on numerous factual issues.

Brief Summary: Christina Jacobs was a deputy clerk at the New Hanover County Court in North Carolina. Jacobs has suffered from mental illness since childhood, including a recent social anxiety disorder diagnosis. After Jacobs began working at the County Court's front counter, she began to experience extreme stress, nervousness, and panic attacks. In May 2009, Jacobs approached her supervisor Debra Excell and told Excell that she suffered from social anxiety disorder and did not feel healthy working at the front counter. Excell encouraged Jacobs to seek treatment from a doctor and also told Brenda Tucker, the elected clerk of the court, about the meeting. Tucker took handwritten notes and placed them in Jacob's personnel file. Four months later, Jacobs emailed her three immediate supervisors (including Excell) and again disclosed her disability and requested an accommodation. She asked to be trained to fill a different role and work at the front counter only one day a week. When one of the supervisors informed Jacobs that only Tucker could act on her request, Jacobs forwarded her email to Tucker. Tucker was on vacation at the time.

When Tucker returned to the office, she called Jacobs into her office for a meeting with the three supervisors. Tucker told Jacobs that she was being fired because she was not "getting it" and that there was no place Tucker could use Jacobs' services. During her employment with the County Clerk, Jacobs was never written up for any disciplinary infraction or performance issue, and there were no negative notes in her personnel file. After her termination, Jacobs filed suit against the County Clerk's Office and the Clerk of the Court under the Americans with Disabilities Act ("ADA"), alleging disability discrimination, failure to provide a reasonable accommodation, and retaliation. In a brief opinion, the district court granted the County Clerk's motion for summary judgment, finding, among other things, that Jacobs was not disabled as a matter of law, and that there was no evidence in the record that Tucker knew of Jacobs' request for an accommodation at the time she decided to fire Jacobs.

On appeal, the United States Court of Appeals for the Fourth Circuit reversed the district court's finding of summary judgment and remanded for trial on the discrimination, accommodation, and retaliation claims. The court found that the district court's opinion reflected "a clear misapprehension of summary judgment standards" and explained that the standard requires a court to view the evidence in the light most favorable to the non-moving party. Here, the district court improperly resolved numerous factual issues in favor of the County Clerk's Office, the moving party, despite Jacobs' competent evidence to the contrary. The court concluded that several factual issues were in dispute and needed to be resolved at trial.

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

Panel: Judges Keenan, Floyd, and Harris

Argument Date: 12/09/2014

Date of Issued Opinion: 03/12/2015

Docket Number: No. 13-2212

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

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

Counsel: ARGUED: Vanessa Katherine Lucas, EDELSTEIN & PAYNE, Raleigh, North Carolina, for Appellant. Kathryn Hicks Shields, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Lisa Grafstein, Mercedes Restucha-Klem, DISABILITY RIGHTS NORTH CAROLINA, Raleigh, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, Grady L. Balentine, Jr., Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. Brian East, DISABILITY RIGHTS TEXAS, Austin, Texas, for Amici Curiae.

Author of Opinion: Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 03:29 PM     4th Circuit     Comments (0)  

  Demetres v. East West Construction, Inc. -- Fourth Circuit
Headline: Fourth Circuit Declines to Reconsider Restrictive Workers' Compensation Decision

Areas of Law: Conflicts of Law, Workers' Compensation

Issues Presented: Whether Virginia was required by the Full Faith and Credit Clause to apply the workers' compensation laws of North Carolina, where an employee of a North Carolina general contractor was injured while performing work in Virginia.

Brief Summary: James Thomas Demetres is a resident and citizen of North Carolina. He was also an employee of North Carolina general contractor, Ashland Construction Co. ("Ashland"). Ashland hired East West Construction, Inc. ("East West") as a subcontractor for a project in Virginia and sent Demetres to Virginia to supervise that project. During his time in Virginia, Demetres was severely injured in an accident when an employee of East West backed over him with a bulldozer.

Demetres returned home, and received workers' compensation benefits in North Carolina through his employment with Ashland. Subsequently, he filed a $100,000,000 personal injury suit against East West in the Eastern District of Virginia. East West moved for dismissal arguing that the Virginia Workers' Compensation Act barred Demetres from bringing a tort suit against them. The district court agreed.

On appeal, Demetres argued, among other things, that the Full Faith and Credit Clause dictated that the court should apply North Carolina law (which did not prevent the suit), because North Carolina was the state in which Demetres received workers' compensation benefits.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision. The Fourth Circuit confirmed that Virginia law controls claims arising out of employment or accidents in Virginia. Although under North Carolina workers' compensation law Demetres would not be barred from bringing suit, the Fourth Circuit denied Demetres' position, following its decision in Garcia v. Pittsylvania County Service Authority, 845 F.2d 465 (4th Cir. 1988). The Garcia court interpreted the Supreme Court's decision in Carroll v. Lanza, 349 U.S. 408 (1955), to mean that full faith and credit principles did not require Virginia to relax its more restrictive laws in all workers' compensation cases involving differing state compensation statutes.

Demetres argued that Garcia was wrongly decided, and the Fourth Circuit noted the presence of express limiting language in Carroll. However, the panel found that it was bound to follow Garcia because only the full court siting en banc can overrule a panel decision. For the time being, the court concluded Demetres' personal injury action was barred under Virginia law because his injury occurred in Virginia while he was working for a Virginia employer.

To read the full opinion, please click here.

Panel: Judges Niemeyer and Gregory, and Senior Judge Davis

Argument Date: 10/30/2014

Date of Issued Opinion: 01/15/2015

Docket Number: Case No. 14-1180

Case Alert Author: David Arnold, Univ. of Maryland Carey School of Law

Counsel: Earl Stanley Murphy, MOODY LAW FIRM, Portsmouth, Virginia, for Appellant. Danielle D. Giroux, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, Richmond, Virginia, for Appellee. ON BRIEF: Stanley P. Wellman, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, Richmond, Virginia, for Appellee.

Author of Opinion: Judge Gregory

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 03:03 PM     4th Circuit     Comments (0)  

  Espinal-Andrades v. Holder --Fourth Circuit
Headline: State Arson Conviction Lands Immigrant in Deportation Hot Water

Area of Law: Federal Agency Law, Immigration Law (Deportation)

Issue Presented: Whether a state arson conviction qualifies as an aggravated felony under the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii).

Brief Summary: Sandra Yamileth Espinal-Andrades emigrated to the U.S. from El Salvador and became a lawful permanent resident in 1999. In 2009, Ms. Espinal-Andrades was charged with four counts of arson and reckless endangerment in Maryland state court. She entered a plea of guilty to first-degree arson and served nearly a year in prison.

In 2013, the U.S. Department of Homeland Security (DHS) began deportation proceedings against Ms. Espinal-Andrades, arguing that her conviction qualified as an aggravated felony under the Immigration and Nationality Act (INA). An immigration judge agreed with DHS, and allowed the deportation proceedings to move forward. The Board of Immigration Appeals (BIA) affirmed the decision.

The United States Court of Appeals for the Fourth Circuit agreed, and held that a state arson conviction qualified as an aggravated felony under the INA. The court used the two-step Chevron analysis to reach its decision. First, the court found the federal law to be unambiguous. The court held that Congress clearly intended for aggravated crimes described in federal statutes to include substantively identical state and foreign crimes that lack only the federal jurisdictional element. Second, the court held that even if the federal law was ambiguous, the BIA's interpretation of the law was reasonable under traditional statutory interpretation.

The Fourth Circuit's decision in this case expressly disagrees with a recent decision from the Third Circuit, Bautista v. Attorney General of the United States, which held that a Pennsylvania man's third-degree arson conviction, under New York state law, did not qualify as an aggravated felony under the INA.

To read the full opinion, please click here.

Panel: Judges Shedd, Agee, and Wynn

Argument Date: 10/30/2014

Date of Issued Opinion: 01/22/2015

Docket Number: Case No. 13-2418

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

Counsel: Jorge Enrique Artieda, JORGE E. ARTIEDA LAW OFFICE PC, Falls Church, 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 Wynn

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 02:47 PM     4th Circuit     Comments (0)  

  Marks v. Dann -- Fourth Circuit
Headline: Pleading Based on Economic Injury Failed to Plausibly Plead Malice or Scope of Employment Exceptions under MTCA

Area of Law: Maryland Torts Claims Act

Issue Presented: Whether the actions of a state official who entered into a sweetheart deal with a Maryland-based manufacturer fell within the "malice" or "scope-of-employment" exceptions to the Maryland Tort Claims Act ("MTCA").

Brief Summary: Jeremy Marks, a co-founder of Maryland- based manufacturer Maxtena, was sued by Maxtena on allegations that he founded a competing venture during his employment. Marks agreed to mediation with Maxtena's board of directors and during the discovery process he became aware that Maxtena's board sold interest in Maxtena to Maryland Venture Fund ("MVF"). Marks brought suit alleging that Maxtena entered into the deal with MVF (which he described as a "sweetheart deal") to dilute Marks' stake in the company. In particular, Marks alleged that the board breached its fiduciary duties to the company when it accepted a low valuation for the company's stock. In addition to naming the Maxtena board of directors, Marks alleged that Thomas Dann colluded with the board, breaching his fiduciary duties. Thomas Dann was the Managing Director of MVF and MVF's representation on the Maxtena board. Dann, acting as a representative for MVF, entered into the alleged sweetheart deal with Maxtena.

The District Court held that Dann was entitled to immunity from personal liability under the Maryland Torts Claims Act, and dismissed Marks' claim against Dann. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of the tort claim against Dann. The Fourth Circuit found that Marks failed to plausibly allege that Dann acted with malice or acted outside the scope of his official duties when making the deal. The court noted that proving a state official acted maliciously is a high bar in a commercial context, because there must be more than the suffering of economic injury as a result of a state official's actions for the court to infer malice. In addition, the court found that Marks was unable to show Dann was acting in his own self-interest instead of in the interests of MVF. The Fourth Circuit found that Marks was unable to plausibly plead either of the two exceptions to personal immunity under the MTCA, and affirmed the dismissal of the claim against him.

To read the full opinion, please click here.

Panel: Judges Keenan, Floyd, and Harris.

Argument Date: 12/09/2014

Date of Issued Opinion: 01/21/2015

Docket Number: Case No. 13-2491

Decided: Affirmed by unpublished opinion.

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

Counsel: ARGUED: John Da Grosa Smith, SMITH HORVATH LLC, Atlanta,
Georgia, for Appellant. Julia Doyle Bernhardt, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee.
ON BRIEF: Matthew A. Horvath, SMITH HORVATH LLC, Atlanta,

Author of Opinion: Judge Harris

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 02:41 PM     4th Circuit     Comments (0)  

  Castillo v. Holder -- Fourth Circuit
Headline: State Offense of "Glorified Borrowing" Did Not Authorize Removal of Lawful Permanent Resident

Areas of Law: Immigration, Criminal

Issue Presented: Whether Castillo's "unauthorized use conviction" under the Virginia Code qualified as a "theft offense" under 8 U.S.C. § 1101(a)(42)(G), and thus was an "aggravated felony" qualifying him for removal under the Immigration and Nationality Act.

Brief Summary: Julio Castillo, a citizen of Honduras, came to the United States as a lawful permanent resident in 1982. In 1995, Castillo was convicted in Virginia of unauthorized use of a motor vehicle under Va. Code § 18.2-102 and sentenced to serve a term of eighteen months' imprisonment. In January, 2012, the Department of Homeland Security (DHS) initiated removal proceedings against Castillo under 8 U.S.C. § 1227(a)(2)(A)(iii), which authorizes the removal of "[a]ny alien who is convicted of an aggravated felony at any time after admission." Included in the definition of "aggravated felony" is a "theft offense . . . for which the term of imprisonment [was] at least one year." § 1101(a)(43)(G) ("Subsection G"). DHS argued, and the Immigration Judge (IJ) agreed, that the Virginia offense of unauthorized use qualified as a "theft offense" under Subsection G. The Board of Immigration Appeals (BIA) agreed with the IJ and Castillo filed a petition for review of the BIA's decision with the United States Court of Appeals for the Fourth Circuit

On appeal, Castillo argued that the Virginia unauthorized use offense was distinguishable from the theft offense under Subsection (G) because in Virginia, unauthorized use includes de minimis deprivations of ownership interests and such de minimis deprivations are expressly excluded from the BIA's definition of a theft offense. As the Immigration and Nationality Act does not define the term "theft offense," the Fourth Circuit granted "substantial deference" to the BIA's statutory interpretation of the term. The definition of "theft offense" that the BIA applied to the present case was "the taking of, or exercise of control over, property without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent." Turning to the Virginia unauthorized use offense, the Fourth Circuit considered the minimum conduct necessary for a violation of the state statute, and considered whether that conduct would satisfy the BIA's definition of "theft offense." In Virginia, the state's appellate courts have upheld convictions for unauthorized use for conduct ranging from a taking with clear intent to deprive to a taking where the defendant initially had consent from the owner to use the property to other minimal, but overextended, uses beyond the owner's authorization. The Fourth Circuit concluded that the offense for unauthorized use included conduct typically viewed as "glorified borrowing" and such conduct was specifically excluded from the BIA's definition of theft offense. Accordingly, the Fourth Circuit vacated the order for Castillo's removal.

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

Panel: Judges Duncan, Keenan, and Diaz

Argument Date: 10/30/2014

Date of Issued Opinion: 01/14/15

Docket Number: No. 14-1085

Decided: Petition for review granted and order of removal vacated by published opinion.

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

Counsel: ARGUED: Ellis Charles Baggs, BAGGS LAW GROUP, PLC, Mechanicsville, Virginia, for Petitioner. Nicole J. Thomas-Dorris, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel, Aimee J. Carmichael, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Judge Keenan

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 02:34 PM     4th Circuit     Comments (0)  

  Lee Graham Shopping Center LLC, et al. v. Estate of Diane Z. Kirsch, et al. -- Fourth Circuit
Headline: Partners in Life, But No Partnership Interest After Death

Areas of Law: Federal Jurisdiction, Contract

Issue Presented: (1) Whether the probate exception to federal diversity jurisdiction prohibited the district court from interpreting the terms of a Partnership Agreement that affected the disposition of a decedent's partnership interest; and (2) Whether the Partnership Agreement did in fact forbid a gift transfer of the decedent's partnership interest to a non-family member.

Brief Summary: After being diagnosed with terminal cancer, Diane Kirsch began estate planning for her loved ones. Specifically, Ms. Kirsch assigned her limited interest in the Lee Graham Shopping Center Partnership ("Partnership"), a business closely held by the members of two families, to the Kirsch Trust. In turn, the Kirsch Trust provided that upon her death, Ms. Kirsch's Partnership interest would pass to the Cullen Trust, a trust established for the benefit of her long-term companion Wayne Cullen. When Ms. Kirsch died in 2012, her Partnership interest passed to the Cullen Trust as provided. In 2013, the Partnership filed a diversity suit opposing the transfer and arguing that the Partnership Agreement forbid gift transfers to non-family members. The district court agreed and granted summary judgment to the Partnership on all claims.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision. First, the court found the district court had jurisdiction to hear the case. Specifically, the court held that the narrow probate exception to federal diversity jurisdiction only bars federal courts from adjudicating matters that require the court to (1) probate a will, (2) annul a will, (3) administer a decedent's estate, or (4) dispose of property in the custody of a state probate court. Here, the probate exception did not apply because the case required the court to interpret the terms of the Partnership Agreement and the two Trusts, but not Ms. Kirsch's will; the court's judgment did not order the distribution of property from Ms. Kirsch's estate, but could only affect future distributions; and finally, the Cullen Trust, not the state probate court, held the property at issue.

The court then applied basic contract interpretation principles to find that the Partnership Agreement unambiguously prohibited gift transfers to non-family members. In reaching this decision, the court noted the Agreement's narrowly defined process for assigning partnership interests and the general favored treatment of family throughout.

To read the full opinion, please click here.

Panel: Judges Wilkinson, Shedd, and Thacker

Argument Date: 12/09/2014

Date of Issued Opinion: 02/02/2015

Docket Number: Case No. 13-2348

Decided: Affirmed by published opinion

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

Counsel: Roger Alexander Hayden, II, PASTERNAK & FIDIS, P.C., Bethesda, Maryland, for Appellants. Kerr Stewart Evans, Jr., EVANSSTARETT PLC, Fairfax, Virginia, for Appellees. ON BRIEF: Nathan S. Brill, PASTERNAK & FIDIS, P.C., for Appellants.

Author of Opinion: Judge Shedd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 02:13 PM     4th Circuit     Comments (0)  

  Gordon v. Braxton -- Fourth Circuit
Headline: Defendant's Inquiry about Appeal Triggers Separate Burdens for Counsel and Court

Area of Law: Criminal Procedure; Post-Conviction; Habeas

Issue Presented: Whether trial counsel was ineffective for failing to file an appeal, after being instructed to do so, and for not consulting with the client about the appeal.

Brief Summary: In 2009, Jerome Gordon entered into a plea agreement that did not include a waiver of appellate or post-conviction rights. Mufeed W. Said, who represented Gordon at the plea and sentencing hearings, did not timely file a direct appeal. Gordon subsequently elected to pursue collateral relief. Gordon filed a pro se state habeas petition that alleged ineffective assistance of counsel. In the petition, Gordon alleged his attorney failed to consult with Gordon and failed to file an appeal, even after Gordon asked Said what his options were and wrote to Said "asking for an appeal, but never got any response." The warden, Daniel Braxton, moved to dismiss the petition and attached an affidavit from Said in support of his motion. The state court granted the warden's motion without an evidentiary hearing, and dismissed Gordon's petition.

After the Supreme Court of Virginia affirmed the lower court's denial of Gordon's petition, Gordon filed a pro se habeas petition in federal court. The district court, assumed deference to the state court was required, and dismissed Gordon's petition without a hearing based upon the state court rulings. Gordon appealed and the United States Court of Appeals for the Fourth Circuit granted a certificate of appealability.

The Fourth Circuit reversed the district court's dismissal of Gordon's petition and remanded for further proceedings. The court held that Gordon properly exhausted his state remedies because he fairly presented the failure-to-consult issue in state court. Because Gordon inquired about what would be done after sentencing, he triggered counsel's separate duty to inquire into Gordon's interest in appealing. Furthermore, the Fourth Circuit held that the district court should have applied a de novo standard of review rather than afford deference to the state court because the state court failed to adjudicate Gordon's claim on the merits. This treatment unreasonably prevented factual development of the ineffective assistance claim by only considering Said's affidavit; ignoring several of Gordon's submissions solely because they were not administered under oath; and failing to hold an evidentiary hearing. Therefore, the district court should have reviewed the state court's decision de novo before denying a hearing. The Fourth Circuit remanded to the district court to exercise its discretion in the first instance on this question.

To read the full opinion, please click here.

Panel: Judge Niemeyer, Judge Wynn, and Judge Diaz, Circuit Judges

Argument Date: 12/9/14

Date of Issued Opinion: 03/03/15

Docket Number: 13-7040

Decided: Reversed and remanded by published opinion.

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

Counsel: ARGUED: Christopher Ryan Ford, MAYER BROWN, LLP, Washington, D.C., for Appellant. Donald Eldridge Jeffrey, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Author of Opinion: Judge Diaz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 11:06 AM     4th Circuit     Comments (0)  

April 2, 2015
  Central Hudson Gas & Electric Corp. v. FERC
Headline: Second Circuit Allows New Electrical Capacity Zone in the Lower Hudson Valley To Go Forward

Area of Law: Administrative Law

Issue(s) Presented: Whether the Federal Energy Regulatory Commission (FERC)'s orders approving a new electric power "capacity zone" in the Lower Hudson Valley, along with a new "demand curve" to set capacity prices, were arbitrary and capricious, unsupported by substantial evidence, or would result in unreasonable rates for electricity.

Brief Summary: Two groups of petitioners challenged four orders of the Federal Energy Regulatory Commission (FERC) approving the New York Independent System Operator's (NYISO) creation of a new capacity zone comprising certain areas of Southeastern New York (including the Lower Hudson Valley) and ordering the implementation of a demand curve for that capacity zone. Petitioners argued that the orders were arbitrary and capricious, unsupported by substantial evidence, and would result in unreasonable rates. The Second Circuit disagreed with petitioners on all grounds and denied the petitions for review. The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de.../1/doc/14-1786_opn.pdf - xml=http://www.ca2.uscourts.gov/decisions/isysquery/c052b24f-5e53-42d2-adb5-1042655e3142/1/hilite/

Extended Summary: The orders challenged by petitioners approved a proposal by the NYISO to create a new wholesale electric power capacity zone. The orders represented the culmination of a multi-year process, and served to provide more accurate price signals in the electrical grids of the Hudson Valley. Petitioners claimed the FERC failed adequately to justify the higher prices expected to result from the creation of the new zone, particularly without a "phase-in" of the new zone and its demand curve to soften the impact. Accordingly, petitioners claimed the challenged orders are arbitrary and capricious, unsupported by substantial evidence, and disregard FERC's statutory mandate to ensure that rates are "just and reasonable."

Petitioners made five principal arguments against FERC's orders, each of which were rejected by the court: (1) FERC did not adequately justify its conclusion that consumers would benefit from the creation of the new Lower Hudson Valley Zone and the implementation of its associated demand curve; (2) FERC failed to adequately support its conclusion that implementing the new zone without a phase-in of its demand curve would result in just and reasonable rates; (3) in creating the new zone, FERC improperly ignored evidence regarding New York's transmission upgrade initiatives; (4) FERC improperly failed to set forth criteria for the potential elimination of the Lower Hudson Valley Zone after the transmission constraint no longer exists; and (5) FERC did not demonstrate that the increases in rates arising from the new zone would reflect to some degree the costs actually caused by the customer who must pay them.

The court reviewed the final FERC orders with great deference under the Administrative Procedure Act's arbitrary and capricious standard. The court found FERC adequately supported its decision to approve the creation of the Lower Hudson Valley Zone by relying on economic theory, which is a permissible basis to support conclusions so long as the theoretic principles are applied in a reasonable manner and are adequately explained. The court concluded the FERC articulated sound economic principles to support the zone creation and satisfactorily explained how those principles justified its conclusion. Accordingly, FERC's determinations were not arbitrary and capricious.

Petitioners also objected to FERC's decision to reject a phase-in of the rate increases, but the court found FERC had sufficient evidence to reject the phase-in and that FERC's reliance on reliability concerns was wholly appropriate. Given the deference that FERC is owed in such a highly technical area, the court concluded that its economic predictions about the effects of immediately implementing the Lower Hudson Valley Zone and its demand curve, combined with the evidence presented, were sufficient to support FERC's decision to reject the phase-in.
The court also rejected the argument that it was arbitrary and capricious for FERC to decide to proceed despite claims that New York's planned transmission upgrades would eliminate the transmission constraint on which the new zone was premised. Finally, the court rejected petitioners' argument that the Zone unfairly apportions charges arising from the transmission constraint because it was outside the scope of the Zone Proceeding.

The Second Circuit ultimately denied the petitions for review, ruling the FERC adequately justified its decision to authorize NYISO to create the Lower Hudson Valley Electrical Zone as well as its decision not phase in the new zone and its demand curve, notwithstanding New York's transmission upgrade initiatives.
The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de.../1/doc/14-1786_opn.pdf - xml=http://www.ca2.uscourts.gov/decisions/isysquery/c052b24f-5e53-42d2-adb5-1042655e3142/1/hilite/

Panel:
Circuit Judges Livingston and Droney; District Judge Nathan

Argument Date: September 12, 2014

Date of Issued Opinion: April 2, 2015

Docket Number: No. 14-1786 (L)

Decided:
Petitions Denied

Case Alert Author: Jesse M. Kantor

Counsel: Raymond B. Wuslich, Winston & Strawn LLP, Washington, DC, for Petitioners Central Hudson Gas & Electric Corp., New York Power Authority, New York State Electric and Gas Corporation, and Rochester Gas and Electric Corporation.
Paul Colbert, Associate General Counsel‐ Regulatory Affairs, Central Hudson Gas & Electric Corp., Poughkeepsie, NY, for Petitioner Central Hudson Gas & Electric Corp.
Glenn D. Haake, Principal Attorney, New York Power Authority, Albany, NY, for Petitioner New York Power Authority.
R. Scott Mahoney, General Counsel, Iberdrola USA, Inc., Binghamton, NY, for Petitioners New York State Electric and Gas Corporation, and Rochester Gas and Electric Corporation.
Jonathan D. Feinberg, Solicitor, Public Service Commission of the State of New York (Kimberly A. Harriman, General Counsel, John C. Graham, Assistant Counsel, and Nelli Doroshkin, Assistant Counsel, on the brief), for Petitioners Public Service Commission of the State of New York and People of the State of New York.
Robert H. Solomon, Solicitor, Federal Energy Regulatory Commission, Washington DC (David L. Morenoff, Acting General Counsel, Lisa B. Luftig and Karin L. Larson, Attorneys, on the brief), for Respondent Federal Energy Regulatory Commission.
John S. Moot, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC (Karis Anne Gong, on the brief), for Intervenor Entergy Nuclear Power Marketing, LLC.
David B. Johnson, Read and Laniado, LLP, Albany, NY, for Intervenor Independent Power Producers of New York, Inc.
Victoria L. Smith, Stinson Leonard Street LLP, Kansas City, MO (Abraham Silverman and Cortney Madea, NRG Energy, Inc., Princeton, NJ, on the brief), for Intervenors NRG Power Marketing LLC, GenOn Energy Management, LLC, Arthur Kill Power LLC, Astoria Gas Turbine Power LLC, Dunkirk Power LLC, NRG Bowline LLC, Huntley Power LLC, and Oswego Harbor Power LLC.

Author of Opinion: Judge Livingston

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 04/02/2015 04:25 PM     2nd Circuit     Comments (0)  

  Ortiz-Franco v. Holder
Headline: Second Circuit Announces that Jurisdictional Limitations Apply When a Removable Alien Is Denied Deferral of Removal Under the CAT

Area of Law: Immigration Law

Issue(s) Presented: Whether federal circuit courts have jurisdiction to consider the Board of Immigration Appeals' denial of an alien's petition under the Convention Against Torture, when the alien raises no constitutional claims or questions of law.

Brief Summary: Enelison Ortiz-Franco, currently residing in the United States, a native and citizen of El Salvador. He is removable as an alien present in the United States without being admitted or paroled, and also as an alien convicted of a controlled substance violation and a crime of moral turpitude. He applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT), contending that if he were removed to El Salvador, he would be tortured and killed by a street gang. The Immigration Judge ruled that his previous convictions rendered him ineligible for asylum and withholding of removal, and that he was not entitled to relief under the CAT. The Board of Immigration Appeals affirmed, and he sought the Second Circuit's review of the CAT denial. The Second Circuit held, however, that it lacked jurisdiction to hear his CAT claim, explaining that when an otherwise removable alien seeks review of his CAT claim, the court's review is limited to questions of law and constitutional claims. The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...84ff9c21c5e/2/hilite/.

Extended Summary:

Ortiz-Franco entered the United States illegally in 1987. He was subsequently convicted of criminal possession of a weapon in the third degree, attempted petit larceny, and possession of a controlled substance. In front of the Department of Homeland Security, Ortiz-Franco conceded that he was removable as an alien present in the United States illegally and that, in addition, he was subject to removal as an alien convicted of violating a law related to a federally controlled substance and convicted of a crime involving moral turpitude.

Years later, after joining a MS-13 (a gang) and being indicted on federal charges in connection with a fight with a rival gang, in an unsuccessful effort to enter into a cooperation agreement, Ortiz-Franco made incriminating statements about his co-conspirators. The government gave copies of Ortiz-Franco's statements to his co-defendants. Afterwards, Ortiz-Franco contended that he had concerns about being deported to his native country because of MS-13's perception that he had cooperated with the government.

In his removal hearing, Ortiz-Franco applied for deferral of removal under CAT. The Immigration Judge denied the application, which permitted Ortiz-Franco to be removed, and the Bureau of Immigration Appeals ("BIA") affirmed. In his petition for review to the Second Circuit, Ortiz-Franco argued that the BIA erred in concluding that he did not show the requisite likelihood of torture or that any torture by gang members would occur with the acquiescence of El Salvador.

In analyzing Ortiz-Franco's petition, the Second Circuit noted that, in similar situations, it has assumed that its review is limited to questions of law and constitutional claims and, in the narrowest of circumstances, has relied on "hypothetical" jurisdiction. In this case, for the first time, the Second Circuit considered the issue and, joining the Fifth, Third, Eighth, Fourth, Eleventh, and Sixth Circuits, held that when an alien who is otherwise removable due to the commission of a covered criminal offense seeks deferral of removal under the CAT, appellate jurisdiction is limited to review of constitutional claims and questions of law. The court recognized that, in the exact situation, the Seventh and Ninth Circuits would find jurisdiction.

The court rooted its analysis in a statutory discussion. Beginning with the CAT itself, the court noted that, because the CAT is not self-executing, it confers no judicially enforceable right on individuals. Instead, Congress implemented the CAT by passing the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA") and directing the executive to promulgate regulations. In addition, CAT has nothing to say about the scope of judicial review of a right defined by statute or the implementing regulations. Instead, Congress has said courts may consider or review claims under the CAT only when they are part of the review of a final order of removal.

As a further limitation, when the petitioner is removable by reason of having committed a covered criminal offense, courts may only review constitutional claims or questions of law. Because review of deferral claims is part of the review of a final order of removal, the scope of deferral review is limited as well. Acknowledging Ortiz-Franco's arguments, and the Fifth and Seventh Circuits position regarding the finality of deferral decisions, the Second Circuit remained unpersuaded. According to its analysis, the court does not have unlimited jurisdiction over CAT claims and Congress intended to limit the courts' ability to review CAT decision. Agreeing with the majority of circuit courts that have considered the issue, the Second Circuit concluded that the denial of deferral should be treated as final and reviewable. Denial of deferral means that a removal order may be immediately carried out and this conclusion accords with the presumption of judicial review of administrative action.

In conclusion, "once [the court is] satisfied that a given alien has been found 'removable by reason of' conviction of a crime covered [by the CAT]..., [it] lack jurisdiction to conduct further review of the 'final order of removal,' whether relating to asylum, withholding of removal, or CAT relief," except to the extent the alien raises constitutional claims or questions of law. [Citations omitted]. Here, because Ortiz-Franco did not raise any constitutional claims or questions of law, and instead disputed the correctness of the IJ's fact-finding, the court dismissed the petition for review for lack of jurisdiction. Concurring, in the interests of uniformity, Judge Lohier prompted Congress or the Supreme Court to decide the circuit split.

Panel (if known): Judges Jacobs, Lohier, and Droney

Argument Date: 10/09/2014

Date of Issued Opinion: 04/01/2015

Docket Number: 13-3610

Decided: Petition Denied.

Case Alert Author: Samantha Kopf

Counsel: Lee P. Gelernt, American Civil Liberties Foundation, Immigrants' Rights Project (with Dror Ladin, American Civil Liberties Foundation, Immigrants' Rights Project and Genet Getachew, Law Office of Genet Getachew), New York, N.Y., for Petitioner; Jesse M. Bless, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation (with David B. Bernal, Director, Stuart F. Delery, Acting Associate Attorney General and Anthony C. Payne, Senior Litigation Counsel), Washington, D.C., for Respondent.

Author of Opinion: Judge Jacobs

Circuit:
2nd Circuit

Case Alert Circuit Supervisor:
Emily Waldman

    Posted By: Emily Waldman @ 04/02/2015 04:12 PM     2nd Circuit     Comments (0)  

April 1, 2015
  Blackston v. Rapelje -- Sixth Circuit
Headline: Sixth Amendment right to confrontation guarantees accused more than in-person confrontation.

Areas of Law: Criminal Law; Evidence; Confrontation Clause

Issues Presented: Did the state court properly exclude the recantations of two key witnesses, reasoning that the Confrontation Clause only guarantees a defendant's right to in-person cross-examination? If not, was the exclusion of the recanted statements harmless error?

Brief Summary:

The defendant was charged with murder, and the state's case depended on the testimony of five witnesses. After the defendant's first trial, two of the key witnesses recanted their prior inculpatory statements and were declared unavailable to testify at the retrial. The state court allowed the witnesses' testimony from the first trial to be read into the record but refused to allow evidence of the witnesses' recantations. The defendant sought federal habeas relief, arguing that the state unreasonably abridged his right to confrontation under the Sixth Amendment. The Sixth Circuit held that denying the defendant the opportunity to impeach the witnesses' testimony with proof of their recantations violated his Sixth Amendment right to confrontation, and this constitutional error was not harmless.

Extended Summary:

The state charged the defendant with first-degree murder. No physical evidence linked the defendant to the crime. The state's case depended entirely on the testimony of five witnesses. At trial, the defendant's ex-girlfriend and an associate testified against him. The jury convicted the defendant, but the trial judge reversed the conviction and granted a retrial because he had misinformed the jury about the extent of the associate's immunity deal.

Before the defendant's retrial, two of the five witnesses (the associate and the ex-girlfriend) prepared written statements recanting their testimony from the first trial. At the second trial, the state called both witnesses to testify, but due to their erratic behavior on the stand, they were declared unavailable for testifying. Instead, the court ordered that the witnesses' testimony from the first trial be read into the record. The court denied the defendant's request to impeach this testimony by presenting evidence of the witnesses' recantations. The second jury convicted the defendant of first-degree murder.

The defendant appealed in the state appellate system. After exhausting his state remedies, he petitioned for federal habeas relief, arguing that the state trial court violated his Sixth Amendment right of confrontation and his Fourteenth Amendment right to due process by refusing to allow him to impeach the unavailable witnesses' testimony with evidence of their recantations. The district court granted a conditional habeas writ.

The Sixth Circuit affirmed, holding that the state trial court improperly excluded the recantations of both witnesses in violation of the defendant's Sixth Amendment right. The Sixth Circuit stated that a defendant has a right to confront all witnesses that bear testimony against him or her, regardless of the manner in which the state presents its witnesses' testimony to the jury. As such, the defendant had the right to confront and impeach all witnesses who testified against him, whether through live cross-examination or by reading the written recantations into the record.

The Sixth Circuit further concluded that trial court's exclusion of the recantations was not harmless error considering the remaining testimony.
In reaching these conclusions, the Sixth Circuit first rejected the state's argument that there is no clearly established right to confrontation other than by live cross-examination. The state's argument relied, in part, on the Supreme Court's 1895 decision in Mattox v. U.S., which held that "admission of a witness's inconsistent statements required that the offering party lay a foundation by calling the witness to explain the inconsistency."

The Sixth Circuit found two faults with the state's Mattox argument. First, the court noted that the requirement allowing a witness to testify about an inconsistency was rooted in a rule of evidence. Therefore, the Mattox decision merely interpreted a rule of evidence and had no relevance to the constitutional issue presented in the defendant's case. Moreover, the court noted that the comments to Federal Rule of Evidence 806 singled out the Mattox case for express disapproval.

The state also relied on the Supreme Court's 2013 decision in Nevada v. Jackson, which involved a rape conviction and a similar recantation scenario. The Sixth Circuit distinguished Jackson because it concerned a local evidentiary rule that barred admission of extrinsic evidence. And the defendant in Jackson was also able to extensively cross-examine the witness during trial.

Thus, the Sixth Circuit reasoned that Jackson would only be relevant to the state's argument if the unavailable witnesses' recantations were considered extrinsic evidence. But the court found that the witnesses' recantations were not extrinsic evidence because they were not being offered to prove inconsistencies in another witness's testimony; instead, the defense wanted to introduce the witnesses' own written statements to impeach their own testimony. Since the recantations did not address the witnesses' credibility on collateral matters, but rather material issues in dispute, they were admissible at trial.


Panel: Judge Daughtrey, Judge Kethledge, and Judge Donald.

Counsel (Argued and On Brief): B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Kimberly A. Jolson, JONES DAY, Columbus, Ohio, for Appellee.

Date of Issued Opinion: February 17, 2005

Docket Number: 12-2668

Decided: Affirmed

Author of Opinion: Judge Daughtrey

Case Alert Author: Cristina D. Solis

Link to Full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/14a0251p-06.pdf

    Posted By: Mark Cooney @ 04/01/2015 11:13 AM     6th Circuit     Comments (0)  

March 31, 2015
  Rush v. Sport Chalet, Inc. - Ninth Circuit
Headline: Ninth Circuit panel holds that before district courts dismiss, rather than sever, claims against co-defendants for improper joinder, they must first conduct a "prejudice analysis" to determine whether such a dismissal will prejudice the plaintiff's otherwise viable claims against each co-defendant, including whether new suits will be blocked by the statute of limitations.

Area(s) of Law: The Federal Rules of Civil Procedure: Rule 20(a)(2) Permissive Joinder of Parties, Rule 21 Misjoinder and Nonjoinder of Parties.

Issue Presented: Whether two defendants share the "same transaction [or] occurrence," when they are in a landlord-tenant relationship and, therefore, can be permissibly joined as co-defendants in a lawsuit. Whether it is appropriate for a court to dismiss lawsuits against improperly joined co-defendants, rather than severing the claims and allowing separate suits to proceed, when this will cause prejudice to the plaintiff.

Brief Summary: Plaintiff Sandi Rush sued three stores, Babies "R" Us, Petsmart, and Sport Chalet; as well as their collective landlord, Foothill Ranch LLC; for violations of the Americans with Disabilities Act ("ADA"). Prior to the hearing, one of the stores, Babies "R" Us, settled with Rush, and Rush filed a notice of dismissal as to that defendant..

The district court subsequently issued an order sua sponte that held that the remaining defendants were improperly joined under the Federal Rules of Civil Procedure Rule 20, Permissive Joinder of Parties, as Rush's claims against the landlord and the other stores did not arise out of the same transaction or occurrence or series of transactions or occurrences as her claims against Babies "R" Us. Pursuant to its discretion under Rule 21 (Misjoinder and Nonjoinder of Parties), the district court dismissed all claims against the remaining co-defendants.

Reviewing the district court's misjoinder decision de novo, the panel reversed the district court's holding that the landlord, Foothill Ranch, was properly joined under Rule 20. Reviewing for abuse of discretion the district court's dismissal of the remaining co-defendants under Rule 21, the panel ruled that the district court's dismissal was improper and vacated it's decision to dismiss rather than sever the remaining defendants.

The panel held that, since Foothill Ranch and Babies "R" Us were in a landlord-tenant relationship, this would satisfy the "common transaction or occurrence" requirement under Rule 20. The panel also decided that the district court may have correctly decided that Sports Chalet and Petsmart were misjoined because the plaintiff's injuries injuries at each store are "distinct and independent from one another, and she has not alleged any legal relationship between them." Nevertheless, the panel determined that the court abused its discretion by severing and dismissing plaintiff's claims against them.

In taking this action, the panel adopted the rule many fellow circuits follow. Rather than sever and dismiss, a district court must first conduct a "prejudice analysis" to determine whether a dismissal will harm the plaintiff by, for instance, causing "loss of otherwise timely claims if new suits are blocked by statutes of limitations."

The panel reversed and remanded with instructions that the district court should examine whether allowing two separate severed complaints to proceed would be necessary to avoid prejudice to Rush.

Extended Summary: Plaintiff Sandi Rush qualifies as physically disabled under applicable federal and California Law. Rush alleged she encountered physical barriers at three retail stores; Sport Chalet, Inc., Petsmart, Inc., and Babies "R" Us, which are all located in the same shopping mall, at 26532 Towne Center Drive, in Foothill Ranch, CA. These physical barriers allegedly limited her access to these stores in violation of the Americans with Disabilities Act ("ADA").

Rush filed an ADA complaint against the stores, as well as the landlord of the shopping center, Foothill Ranch, LLC, on May 14 2012.

Rush settled her claims against Babies "R" Us and filed a notice of dismissal under Rule 41(a)(1) on October 3, 2012. Six days later, October 9, 2012, the district court held sua sponte "the various Defendants are improperly joined," as Rush's complaint did not allege her injuries arose "out of the same transaction, occurrence, or series of transactions or occurrences," as required for permissive joinder under Rule 20. Therefore, the district court severed and dismissed without prejudice Rush's claims against the remaining defendants pursuant to its discretion under Rule 21..

The court reviewed de novo the district court's ruling that defendants were improperly joined, and the district court's decision to sever and dismiss Rush's claims against the remaining defendants for abuse of discretion.

The court found that Foothill Ranch, and Babies "R" Us were properly joined. The court reasoned that, under Rule 20, defendants are permissively joined when the claim or claims arise out of the same transaction or occurrence and if there is a question of law or fact common to the defendants. Here, the common transaction or occurrence was the landlord-tenant relationship between Foothill Ranch and Babies "R" Us. The panel cited to Botosan v. Paul McNally Reality, 216 F.3d 827, 834 (9th Cir. 2000), which held "the landlord is a necessary party in an ADA action, regardless of what the lease provides." The panel held that, since Foothill Ranch was properly joined to Rush's claim against Babies "R" Us, Rush's claims against Foothill Ranch remained viable even after Babies "R" Us' dismissal from the suit. Therefore, the court held Foothill Ranch was improperly dismissed from her suit by the district court.

Regarding Sport Chalet and Petsmart, the court conceded the district court may have been correct in holding they were not properly joined, as any injuries encountered at each establishment would have been distinct and peculiar to that establishment, and Rush did not allege any legal relationship between the three stores. However, the court found the district court abused its discretion in dismissing Rush's complaints against Sport Chalet and against Petsmart, as the district court did not evaluate any prejudice this dismissal might cause Rush.

The court adopted the rule favored by many circuits "that district courts who dismiss rather than sever must conduct a prejudice analysis, including 'loss of otherwise timely claims if new suits are blocked by statutes of limitations.'"

The court therefore vacated and remanded, directing the district court to evaluate whether allowing two severed complaints to remain Sport Chalet and Petsmart, each with Foothill Ranch as co-defendant, would be necessary to avoid prejudice to Rush.

For the full opinion: http://cdn.ca9.uscourts.gov/da...15/03/03/12-57253.pdf

Panel: Stephen Reinhardt, Ronald M. Gould, Circuit Judges, and J. Frederick Motz, Senior District Judge.

Date of Issued Opinion: March 3, 2015

Docket Number: 12-57253\

Decided: Reversed and remanded with instructions.

Case Alert Author: Michael Zatlin.

Counsel: Scottlynn J. Hubbard, IV (argued), Law Offices of Lynee Hubbard, Chico, California; Anthony M. Bettencourt (argued), Disabled Advocacy Group, Chico, California, for Plaintiff - Appellant, Henry A. Platt and Robert L. Duston, Saul Ewing LLP, Washington, D.C., for Defendant - Appellee Foothill Ranch.

Author of Opinion: Motz, Senior District Judge.

Case Alert Circuit Supervisor: Professor Glenn Koppel.

    Posted By: Glenn Koppel @ 03/31/2015 02:00 PM     9th Circuit     Comments (0)  

  Theodore Frank v. Netflix, Inc; Wal-Mart Stores, Inc.; Walmart.com USA LLC - Ninth Circuit
Headline: Ninth Circuit affirms class action settlement agreement including certification, method of distribution, and calculation of attorneys' fees, rejecting a challenge by class members that "the gift card portion of the settlement constituted a coupon settlement within the meaning of the Class Action Fairness Act."

Areas of Law: Civil Procedure, Class Actions

Issue Presented: Whether the district court clearly abused its discretion in its approval of the class action settlement agreement.

Brief Summary: After the district court approved a class action settlement between a class of Netflix subscribers and both Wal-Mart Stores, Inc. and Walmart.com USA LLC ("Wal-Mart"), thirty class members opposed the settlement. Class members opposed the certification of the settlement class, the settlement, and the calculation of attorneys' fees.

The Ninth Circuit panel found that certification was proper because there were no conflicts between class representatives and unnamed class members. Furthermore, the panel also approved the district court's "claimant-fund-sharing" distribution method, the amount disbursed as incentive awards, and the fee award. Lastly, the Court concluded that notice was adequate and that the district court sufficiently explained its calculations and rationale.

Accordingly, the Court affirmed the judgment of the district court.

Extended Summary: Andrea Resnick and seven other class representatives filed a class action lawsuit against Netflix and both Wal-Mart Stores, Inc. and Walmart.com USA LLC. Plaintiffs alleged that they were unfairly charged a high monthly subscription price as a result of an agreement between Netflix and Wal-Mart to divide the online DVD market. Netflix agreed to stop selling DVDs and focus on DVD rentals, and Wal-Mart agreed to turn away from renting DVDs and focus instead on selling them.

A class of just Netflix subscribers eventually reached a settlement agreement with Wal-Mart whereby Wal-Mart agreed to pay $27,250,000.00 comprising both a "Cash Component" and a "Gift Card Component" in exchange for dismissal with prejudice of all claims asserted in the complaint. The Cash Component funded attorney's fees and expenses, costs of notice and administration, and incentive payments to class representatives. The Gift Card Component funded the remaining disbursement to class members. Each claimant received an equal share of the Gift Card Component regardless of the specific damages of each individual. Class counsel was granted attorneys' fees in the amount of 25% of the overall settlement fund. However, of the 1,183,444 claims that were submitted by class members, thirty of them lodged objections to the settlement.

At the fairness hearing, the judge rejected all objections and determined that the Class Action Fairness Act's coupon-settlement provisions did not apply because the gift cards were sufficiently different from coupons given the facts that claimants could choose between gift cards and cash, the gift cards were freely transferrable, and they had no expiration date. The court also determined that attorneys' fees were properly calculated and approved administration costs as well as both the reimbursement amounts for litigation expenses and incentive awards of $5,000.00 for each class representative. After all calculations, each of the almost 1.2 million claimants received roughly $12.00. Theodore Frank, Tracey Cox, Maria Cope, Edmund Bandas, John Sullivan, and Jon Zimmerman ("Objectors") appealed from the court's approval of the settlement, objecting to the certification of the settlement class, the settlement, and the calculation of attorneys' fees.

Objectors first argued that the class representatives did not adequately represent the class because each of the class representatives was awarded $5,000.00, whereas each unnamed class member received only $12.00.

The panel ruled that legal adequacy of the class representatives is determined by whether the representatives and their counsel have any conflicts of interest with other class members and whether the representatives and their counsel maintain a sufficient interest in and nexus with the class so as to ensure vigorous representation. The panel stated that incentive payments alone do not create an impermissible conflict between class representatives and unnamed members. Because there were no structural differences in the claims of the class representatives and other class members, no ex ante incentive agreements between the class representatives and counsel, no conditional incentive awards, and no guarantees that class representatives would receive incentive payments, the Ninth Circuit panel found that the district court did not abuse its discretion in certifying the settlement class.

Objectors next argued that the district court erred in approving the settlement. Specifically, they argued that the district court erred because it used a type of fluid recovery (a disfavored distribution scheme), notice violated both Rule 23 and class members' due process rights, the incentive awards were unreasonably large and unfair, both a reverter and confidential opt-out provision in the settlement agreement made it unfair, and the district court did not fully explain its decision to approve the settlement.

The panel rejected the labeling of the claimant-fund-sharing distribution method employed by the district court as a type of fluid recovery disfavored by state and federal courts The panel explained that, unlike fluid recovery which confers an indirect benefit on class members, the claimant fund approach provides direct compensation to class members.

In addressing Objectors' argument that notice of the settlement violated Rule 23 or due process, the panel found that notice was adequate and sufficiently specific, holding that "[t]he e-mail and mail notices, which did not need to and could not provide an exact forecast of how much each class member would receive, gave class members enough information so that those with 'adverse viewpoints' could investigate and 'come forward and be heard.'"

The panel also rejected the objection that the incentive awards to the class representatives were too large. Rather than simply comparing $5,000.00 incentive award to the $12.00 individual award, the panel focused on the number of class representatives receiving incentive awards, the average incentive award amount, and the proportion of the total settlement that was spent on incentive awards and determined that the district court did not abuse its discretion. The panel also rejected the class members' argument that "two provisions in the settlement agreement, a reverter provision that she alleges allows Walmart to keep excess settlement funds and a confidential opt-out provision that allows Walmart to leave the settlement agreement at any time, make the agreement unfair." The panel held that "The district court did not abuse its discretion in deciding that these provisions do not allow for any improper reversion of allocated settlement funds to Walmart."

Objectors also argued that the district court abused its discretion in approving the fee award. More specifically, they argued that the attorneys' fee award violated provisions of the Class Action Fairness Act (CAFA) governing coupon settlements and were unreasonable, class counsel failed to provide adequate notice of their attorney's fee petition to class members, and the district court failed to adequately explain its attorneys' fee award.

The panel concluded that the district court properly determined that the portion of the settlement paid in Wal-Mart gift cards was not a "coupon settlement" within the meaning of CAFA because the settlement differs from all the twenty-nine examples of problematic coupon settlements defined by the Senate Judiciary Committee's Report for CAFA. Unlike coupons which require a class member to hand over more of their own money before they can take advantage of the coupon, the gift cards do not require class members to spend any of their own money. The gift cards in this settlement could be used for any products on Walmart.com, are freely transferrable, do not expire, and do not require consumers to spend their own money. Furthermore, the gift cards offer class members a choice of a large number of products from a large retailer. Therefore, the attorneys' fees were properly calculated as a percentage of the overall settlement fund, including the value of the gift cards.

In determining the reasonableness of the attorneys' fees, the panel emphasized that reasonableness is not measured by the entire common fund from which a percentage is awarded but, rather, by the end result. Hence the application of the 25% benchmark percentage to the entire common fund was reasonable because the resulting fees were reasonable.

With respect to notice, the panel found that it was adequate and sufficiently satisfied the requirements of In re Mercury because the notice was both mailed and emailed, stated the percentage that counsel would be seeking in fees, and clearly set a fourteen-day deadline to file an objection.

Finally, the panel held that the district court provided an adequate explanation of its rationale in approving the attorneys fees because the court compared the 25% benchmark award to the summary lodestar numbers provided by class counsel and the judge provided a reasoned explanation, applying some of the Vizcaino v. Microsoft Corp. factors.

In sum, the Ninth Circuit panel affirmed the district court's decision to approve all aspects of the settlement between the class of Netflix subscribers and Wal-Mart.

For the full opinion: http://cdn.ca9.uscourts.gov/da...15/02/27/12-15705.pdf

Panel: Sidney R. Thomas, Chief Judge, Stephen Reinhardt, Circuit Judge, and Lloyd D. George, Senior District Judge

Date of Issued Opinion: February 27, 2015

Docket Number: 12-15705

Decided: Affirmed.

Case Alert Author: Daniel S. Seu

Counsel: Theodore H. Frank (argued), Center for Class Action Fairness, Washington, D.C.; Gary Sibley, Dallas Texas; Joseph Darrell Palmer, Law Offices of Darrell Palmer PC, Solana Beach, California; Christopher A. Bandas, Bandas Law Firm, P.C., Corpus Christi, Texas; Christopher V. Langone and Grenville Pridham, Law Office of Christopher Langone, Ithaca, New York; Joshua R. Furman (argued), Joshua R. Furman Law Corp., Los Angeles, California, for Objector-Appellants Frank, Cope, Cox, Bandas, Sullivan, and Zimmerman.

Todd A. Seaver (argued), Joseph J. Tabacco, Jr., and Christopher T. Heffelfinger, Berman DeValerio, San Francisco, California, for Plaintiffs-Appellees.

Author of Opinion: S. Thomas, Chief Judge.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/31/2015 01:59 PM     9th Circuit     Comments (0)  

  Resnick v. Netflix - Ninth Circuit
Headline: The panel held that Netflix online DVD-rental subscribers "did not raise a triable issue of fact as to whether they suffered antitrust injury-in-fact on a theory that they paid supracompetitive prices for one of Netflix's subscription plans because Netflix would have reduced the price of that plan but for its allegedly anticompetitive conduct. The panel further "affirmed in part and reversed in part the district court's taxable cost award" holding "that certain charges for "data upload" and "keywording" were not recoverable as costs for making copies under § 1920(4)."

Area of Law: Antitrust

Issues Presented: (1) Whether Netflix's promotion agreement with Walmart violated antitrust laws; (2) Whether the district court's award of taxable costs was proper

Brief Summary: Defendant Netflix, founded in 1997, was the first internet-based DVD rental service and faced no serious competition until Walmart entered the market in 2003, followed by Blockbuster in 2004. Despite the emergence of serious competitors, Netflix did not change its monthly subscription plan for a full year, and then actually increased its monthly fee. In October 2004, due to fears of Amazon entering the market, Netflix reduced its price. By this time, however, it was clear to Netflix and its competitors that Walmart was not doing well in the market and Netflix's CEO approached Walmart in an attempt to form a partnership. While initially unsuccessful, a verbal agreement was reached by March 17, 2005 whereby Walmart's subscribers could transfer to Netflix free of charge and maintain the same monthly rate and Walmart would receive both a bounty and revenue for any referrals that came from Walmart's transferred customers. The terms, however, did not include a covenant not to compete.

Plaintiffs (the "Subscribers"), representing a class of people who subscribed to Netflix over a five year period, alleged antitrust violations by Netflix and Walmart centering around a theory that the Subscribers paid a higher monthly fee for Netflix's service than they would have but for Netflix's allegedly anticompetitive conduct. The district court granted Netflix's motion for summary judgment on the basis that the Subscribers had failed to raise a triable issue as to antitrust injury-in-fact since Netflix never reduced its prices in response to Walmart. Furthermore, at the time of the agreement all competitors, including Walmart itself, knew that Walmart was no longer a serious competitor in the online-DVD rental market.

The district court then awarded Netflix $710,194.23 in costs; $317,616.69 for electronic discovery costs and $245,471.31 in consulting fees, file conversions, and copying costs. The Subscribers appealed this award and Netflix cross appealed for the denial of $21,000 of requested costs. These matters were reviewed under an abuse of discretion standard.

Generally, costs and fees should be awarded to the prevailing party, but such costs are limited to those listed in 28 U.S.C. section 1920. In making its initial costs award, the district court relied on a broad interpretation of § 1920; however, the Supreme Court has since ruled that § 1920 should be narrowly interpreted. With this in mind the 9th Circuit ("the panel") reviewed five categories of charges challenged by the Subscribers and found that while some of the charges were taxable, many were not. The panel ultimately held that of the $317,616.69 challenged by the Subscribers, only costs attributable to optical character recognition, conversion to TIFF, and "endorsing" activities were taxable since these activities were explicitly required by the Subscribers. Therefore, the panel affirmed the cost award in part, vacated it in part, and remanded for taxing of costs in accordance with the opinion. The panel then ruled that the district court did not abuse its discretion when awarding $245,471.31 for consulting fees, TIFF images, and copying costs, as the evidence was sufficient to justify the court's rulings and insufficiently persuasive to overcome the presumption in favor of an award.

Lastly, the panel found that the district court did not abuse its discretion in denying to award Netflix $21,000 for producing black and white PowerPoint documents as they were not in compliance with the Subscribers' specific request and Netflix was to blame for the duplicative work that followed.

In conclusion, the panel affirmed the district court's grant of summary judgment on the antitrust claims due to a lack of antitrust injury in fact and affirmed the cost award in part and reversed it in part and remanded to the district court for further proceedings consistent with the opinion.

Extended Summary: Defendant, Netflix, was founded in 1997 as the first internet-based DVD rental service and offered customers to rent or buy DVDs by mail. In 2000, Netflix discontinued its DVD sales business and focused on DVD rentals instead. While initially DVD rentals were offered on a pay-per rental basis, Netflix quickly switched to a monthly subscription model where customers could rent three DVDs ("3U" plan) at once for $19.95 per month or four DVDs ("4U" plan) at a time for $24.95 per month. Netflix thrived under this business model and by 2005 controlled 77.8% of the online DVD-rental market and 92.3% by 2010.

While initially Netflix faced no serious competition, in 2003 Walmart launched its own online DVD-rental service where it offered a 3U plan for $18.76 a month. Netflix did not change its pricing for a full year, and then the price change was to increase Netflix's 3U plan to $21.99 per month. Two months later, in August 2004, Blockbuster launched its own online DVD rental service with a 3U plan for $19.99 a month. In October 2004, in response to rumors that Amazon was planning to enter the online DVD-rental market, Netflix announced that it would reduce its 3U plan from $21.99 to $17.99 per month. The next day Blockbuster reduced its price to $17.49 per month. In November 2004, Walmart reduced its price to $17.36 per month. In December 2004 Blockbuster announced another price reduction, down to $14.99 per month. Netflix maintained its $17.99 price until August 2007, at which point it lowered the price to $16.99. In the interim, Walmart's online-DVD rental business did very poorly. Walmart peaked at 60,000 subscribers whereas in 2004 Netflix had over 2 million subscribers and Blockbuster had 400,000. Walmart gained an average of 4,000 subscribers per quarter whereas Netflix gained 250,000 subscribers per quarter. By February 2005, Walmart only had a 1.4% market share and Netflix had a 77.8% market share.

In October 2004, Netflix's CEO requested a meeting with Walmart's CEO in hopes to form a partnership to strengthen Netflix's position before Amazon entered the market. Walmart's CEO was uninterested at the time and no agreement was reached at the meeting. During this time, however, Walmart was considering alternatives to its online DVD-rental business, including potential partnerships with Yahoo! or Microsoft, but ultimately decided that none of its options would be profitable and would likely all lead to multi-million dollar losses. As such, in January 2005, Walmart decided to exit the market, began making preparations to cover losses incurred from the closure, and stopped accepting new subscribers. By March 2005, Netflix had 3 million subscribers and Walmart only had 52,000. At this time Netflix's CEO was aware of Walmart's declining market share, but not of Walmart's plan to exit the market, and Netflix's CEO made additional attempts to form a partnership. The two CEOs met on February 9, 2005, and while no agreement was reached at the meeting the two CEOs had reached a verbal agreement by March 17, 2005. The key terms of the agreement were: (1) Walmart's subscribers who so chose would be transferred to Netflix free of charge and would keep their monthly rate for one year, (2) Walmart would promote on its website Netflix's DVD rentals, (3) Walmart would receive a 10% revenue share for each subscriber who transferred plus a $36 bounty for each new Netflix subscriber gained from Walmart's referrals, and (4) Netflix would promote Walmart's DVD sales business. These terms were incorporated into a Promotion Agreement; however, the Promotion agreement did not include a covenant not to compete, nor did it prohibit Netflix from selling DVDs and explicitly permitted Walmart to offer an online DVD rental service.

Amazon never entered the online DVD-rental market, resulting in Blockbuster being Netflix's only major competitor until Blockbuster filed for bankruptcy in 2010. Netflix was then left as the sole major competitor with over 90% of the online DVD-rental market. Netflix's 3U price stayed at $17.99 from November 2004 to August 2007, was then reduced to $16.99, and remained at that price through the end of the class action period.

The Subscribers alleged antitrust violations by Netflix and Walmart and sought to represent a class of Netflix subscribers. The Subscribers asserted four cases of action that essentially allege that the Promotion Agreement illegally allocated the online DVD-rental market: (1) a §1 Sherman Act violation for unlawful market allocation of the online DVD-rental market (against all defendants); (2) a §2 Sherman Act claim for monopolization of the online DVD-rental market (against Netflix); (3) a §2 Sherman Act claim for attempted monopolization of the online DVD-rental market (against Netflix); and (4) a §2 Sherman Act claim for conspiracy to monopolize the online DVD-rental market (against all defendants).

The district court granted the Subscriber's motion for certification of a litigation class, defining the class as those who subscribed to Netflix between May 19, 2005 through December 23, 2010, and subsequently approved Walmart's settlement with the class. Netflix moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56, which the district court granted on the basis that there was no per se antitrust violation and that the Subscribers had failed to raise a triable issue as to antitrust injury-in-fact. Netflix filed a bill of costs seeking $744,740.11 in discovery costs, of which the district court awarded Netflix $710,194.23 in costs. The Subscribers filed a timely notice of appeal and Netflix cross-appealed.

The panel reviewed de novo the district court's ruling. Summary judgment is appropriate if there is no genuine dispute as to any material fact. A genuine issue of material facts exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. While until recently summary judgment was disfavored in antitrust cases, that presumption has now disappeared.

Under Article III, antitrust plaintiffs establish injury-in-fact when they suffer an injury which bears a causal connection to the alleged antitrust violation. In addition, private antitrust plaintiffs must also demonstrate antitrust injury, which is defined as (1) injury of the type the antitrust laws were intended to prevent that (2) flow from that which makes defendants' acts unlawful. One way this can be proven is by showing that consumers paid higher prices for a product due to the anticompetitive actions of a defendant. The Subscribers alleged Netflix would have reduced its 3U subscription price to $15.99 per month if Netflix's efforts had not freed the company from Walmart's competitive threat, thereby forcing the Subscribers to pay a higher monthly fee than they would absent Netflix's allegedly anticompetitive conduct.

However, there was no evidence that Netflix would have raised its prices if Walmart had remained in the market. When Walmart initially entered the market as a competitor, Netflix not only failed to reduce its prices but actually raised them. Even when Blockbuster, who controlled a larger market share than Walmart, entered the market Netflix did not reduce its prices. The Subscribers' evidence consisted of a number of documents that referenced the potential impact of Walmart entering the market as a competitor to Netflix; however, these documents predated Walmart's actual entry and subsequent poor performance. While some of Netflix's internal documents did refer to a potential price cut to $15.99 they were in response to Blockbuster, not Walmart, and were merely a potential that never occurred. Ultimately, the Subscribers' evidence supported that neither Walmart nor its competitors viewed Walmart as a threat in late 2004. Furthermore, the expert testimony offered by the Subscribers was contrary to the market facts. As such, no reasonable juror could conclude that Netflix would have lowered its 3U price to $15.99 in response to Walmart and the panel affirmed the district court's summary judgment as to the four Sherman Act claims.

The panel then reviewed the district court's cost award under an abuse of discretion standard.

During discovery the Subscribers sought electronically stored information and required it to be provided in a specific file type, searchable, numbered sequentially, and include identifying information. Netflix in turn employed electronic discovery vendors to assist and produced nearly 15 million pages of discovery, resulting in their claim of $744,740.11 as discovery costs of which $710,194.23 was awarded. The Subscribers argue the district court erred by broadly construing § 1920(4) in its taxing of electronic discovery costs for $317,616.69 and abused its discretion in taxing consulting fees, file conversions, and copying costs of $245,471.31. Netflix cross appealed arguing the district court abused its discretion in disallowing $21,000 in costs to copy various PowerPoint files.

Regarding electronic discovery production costs, the district court relied on a broad reading of section 1920 founded in a prior circuit opinion. However, the Supreme Court has since ruled that § 1920 should be more narrowly interpreted to limit taxable costs to relatively minor incidental expenses. While costs and fees should generally be awarded to the prevailing party, a district court's discretion to do so is limited to the specific types of costs listed in 28 U.S.C. § 1920. Analyzing the phrase "costs of making copies...obtained for use in the case," the panel noted that narrow construction of the statute requires that any tasks and services for which an award of costs is being determined must be described and proven with sufficient specificity, particularity, and clarity to permit a determination that said costs are being awarded for making copies. As such, invoices for general statements like "document production" are unhelpful in determining whether the invoices are taxable.

The panel reviewed five categories of charges challenged by the Subscribers: (1) data upload, (2) endorsing, (3) keyword, (4) professional services, and (5) electronic data discovery.

"Data upload" refers to the reproduction of documents for potential production into a database for review after all the processes necessary to prepare the documents in the required formats and labeling are completed. The Subscribers challenge these costs on the basis that uploading information is merely transmitting it from one location to another, which is analogous to moving boxes from one room to another in a law firm for review. Netflix argues that the transmission necessarily involves making copies from the original location to the new location. The panel examined the issue by making a comparison with the paper-document analogue. The transmissions taking place here were similar to faxing a document to a law firm, causing both data to be transferred and a facsimile copy to be created. Such costs are not un-taxable simply because it was a fax machine making the copy and not a photocopier. However, taxable costs under § 1920(4) are not determined by merely whether a copy was made, but whether the copy was necessarily obtained for use in the case.

What is deemed to have "necessarily obtained" for use in a case is extremely limited. If the copy was made to be produced in discovery then it would be taxable, but if made merely for convenience of counsel it would not be. Here, testimony indicated that the copies were made as a step in the production process in order to allow a selection of documents for production from the documents for potential production. The panel ruled that this was similar to copies being made for a lawyer to review on his own computer instead of the original file, and not necessarily for use in the case, and as such the charges were not taxable.

"Endorsing" activities referred to Netflix's branding of image files with unique sequential production numbers and confidentiality designations. While the Subscribers technically challenged the taxing of such activities, they did so only via a cursory mention in their statement of facts and did not specifically and distinctly argue them in the open briefing. As a result, the panel did not consider this challenge.

"Keywording" refers to automated software used to filter what documents needed to be copied based on a set of supplied criteria. While Netflix argues that this is a mechanical process of making copies of all documents that fit the criteria, the panel held this charge was for two separate tasks: (a) identifying what documents fit the criteria and (b) making copies of those documents. The act of identifying the documents is similar to having a person review the documents based on supplied criteria and sorting them into the appropriate pile to copy or not copy. Since this filtering process was applied both to copied documents and documents that were not to be copied, this charge was not taxable.

"Professional services" as referenced by the Subscribers, includes a broad range of activities including processing, native review, data analysis, project management, and production services. Netflix's response was essentially a mere claim that all referenced activities were similar to those performed by copy center employees and as such should be recoverable. Lacking more detailed information on such activities, the panel was unable to determine which specific charges were taxable and remanded the issue to the district court.

The "electronic discovery task" challenged by the Subscribers was for one specific item of an invoice in which Netflix was charged a $10,000 flat rate for a variety of tasks such as native review processing, optical character recognition, exporting document, converting documents to TIFF, populating custom fields, and prepping for further processing. While some of those tasks are taxable, not all of them are, and the panel limited recovery to those charges associated with taxable costs.

In sum, the panel ruled that of the $317,616.69 challenged by the Subscribers as nontaxable, only costs attributable to optical character recognition, conversion to TIFF, and "endorsing" activities were taxable since these activities were explicitly required by Subscribers. Therefore, the panel affirmed the cost award in part, vacated it in part, and remanded for taxing of costs in accordance with the opinion.

Regarding the Subscribers' challenge of the $245,471.31 awarded by the district court for consulting fees, TIFF images, and copying costs, the panel ruled that there was not an abuse of discretion.

While the Subscribers complained that the district court failed to give affirmative reasons for awarding costs, the district court was only required to find the reasons for denying costs were insufficiently persuasive to overcome the presumption in favor of an award. Given the combination of the deferential standard for review, that the court explained that it had read the parties' papers and considered their arguments, and that the district court specifically identified the Subscribers' arguments on these costs, the district court's explanation was sufficient. Similarly, the Subscribers challenged costs claimed for preparing visual aids but did so based on invoice descriptions of the title of the person performing the work. In light of the evidence that the vendors were only paid for production costs, and not for creating the substantive content, the district court did not abuse its discretion in awarding $14,355.50 for preparing visual aids.

Regarding the $167,399.70 for TIFF conversions, plus an additional $46,773.71 for alleged unnecessarily produced documents, the district court heard testimony from experts on both sides prior to making the award. Given the deferential standard of review, there is no reason for the panel to overrule the district court's award on that matter. Lastly, the Subscribers challenged an award of $16,942.40 for copying paper documents. The panel, however, upheld the award given that the bill contained the purpose of each charge, the dates the work was done, and a declaration from one of Netflix's attorneys that various documents were produced as exhibits to depositions and as part of formal discovery documents. Since there was sufficient information to determine which costs were taxable, the district court did not abuse its discretion in awarding these costs.

Finally, the panel found that the district court did not abuse its discretion in declining to award Netflix $21,000 for producing various black and white PowerPoint documents. The Subscribers had requested specific files and specified that they be produced in the same manner they were kept in the ordinary course of business. Despite that Netflix ordinarily kept the slides in color, it proceeded to only provide black and white slides to the Subscribers until ordered to comply with the discovery request by the court. Although production of the color slides was duplicative of the black and white slides, Netflix could have avoided the problem by producing the color documents as per the original request. Based on this, the district court's denial of Netflix's cost award was not an abuse of discretion.

In conclusion, the panel affirmed the district court's grant of summary judgment on the antitrust claims due to a lack of antitrust injury in fact and affirmed the cost award in part and reversed it in part and remanded to the district court for further proceedings consistent with the opinion.

Panel: Judges Thomas, Reinhardt, and Senior District Judge L.D. George by designation

Date of Issued Opinion: February 27, 2015

Docket Number: 4:09-md-02029-PJH

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

Case Alert Author: Seth DuMouchel

Author of Opinion: Judge Thomas

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/31/2015 01:57 PM     9th Circuit     Comments (0)  

March 27, 2015
  United States v. Figueroa-Labrada -- Tenth Circuit
Case Name: United States v. Figueroa-Labrada

Headline: Tenth Circuit Holds Defendants Eligible for Reduced Sentences After Providing Helpful Information Upon Remand of Proceedings

Areas of Law: Criminal Procedure, Sentencing

Issue Presented:

1. Does the "safety valve" sentence reduction apply when a defendant provides information to the government for the first time on remand, but before a resentencing hearing?

Brief Summary:

The majority determined that when a defendant provides information to the government for the first time on remand but before resentencing, the district court must consider the information provided in determining whether the defendant qualifies for a reduced sentence under the "safety-valve" provision of 18 U.S.C. § 3553(f).

Judge Phillips issued a dissenting opinion. He stated that although he agreed that a defendant may first request safety-valve relief for the first time at resentencing, a defendant could not rely on information provided after the initial sentencing hearing as the basis for the request.

Extended Summary:

The defendant was convicted of conspiracy to possess methamphetamine with intent to distribute and was sentenced to 120 months in prison. The court attributed to Figueroa the entire 746.19 grams of a substance containing a detectable amount of methamphetamine that was involved in the incident, without making a particularized finding as to why this amount was attributed to him. On appeal, the court noted that 56.7 grams was a reasonably probable amount of the substance to attribute to Figueroa, and that amount is what the district court attributed to Figueroa on remand.

Before the re-sentencing hearing, Figueroa asserted that he was entitled to a lower sentencing range than the district court's determination that the range should be 63 to 78 months, because he had provided the government with all of the information that he had about his offenses. This information, he alleged, entitled him to a sentencing range of 51 to 63 months. The government supported Figueroa's safety valve request due to the nature of the information he provided. The court denied the request, however, because he did not provide the information before his initial sentencing hearing. Figueroa was sentenced to 63 months.

The majority held that the plain language of the statute directed that a defendant is eligible for a safety-valve reduction when information is provided before a resentencing hearing.

The court noted that there are five requirements for a reduced sentence using the safety-valve provision of § 3553(f). The only requirement that was at issue is the last one, which says the court is to impose a sentence within the sentencing guidelines "without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation that" not later than the time of the sentencing hearing that the defendant provided all information or evidence he has about an offense. 18 U.S.C. § 3553(f). The defendant has complied with the requirement, even if the government is already aware of all of the information the defendant has shared, or does not find the information useful. Id.

The district court stated that the language in § 3553(f) precluded information provided before a resentencing hearing, because the statute says "not later than the time of the sentencing hearing." On appeal, Figueroa argued that the word "sentencing" also included "resentencing" hearings.

The majority noted that a district court's legal interpretation of the safety-valve provision is subject to de novo review. It began by looking to the plain language of the statute. It explained that the words "the sentencing hearing" referred to whichever sentencing hearing was at issue - not just the initial sentencing hearing. The government conceded that point and did not give a reason for why the word should be interpreted differently in § 3553(f)(5).

The majority stated that there was nothing in the text to suggest that the phrase "sentencing hearing" should be construed as the initial sentencing hearing, and that doing so ignores the statutory context. It explained that the phrase "not later than the time of the sentencing hearing" refers back to the generic phrase "at sentencing," which, as the court stated above, is a generic phrase that can refer to any sentencing hearing.

The majority also explained that reading § 3553(f) as a whole supports their position that the information simply needs to be provided before a resentencing hearing. Section 3553(c) provides that the reasons for imposing a particular sentence shall be given in open court. Thus, if resentencing hearings were supposed to be excluded, a court could impose a sentence without providing reasons for doing so, as long as it was a resentencing hearing.

The majority stated that the government conceded that § 3553 generally applies at resentencing hearings. However, the government argued that 18 U.S.C. § 3742(f)(1) should guide the meaning of "the sentencing hearing." This interpretation would essentially make a resentencing hearing simply a continuation of the initial sentencing hearing. The majority responded by noting that § 3742(g) actually directs the court to resentence the defendant in accordance with § 3553.

The majority stated that its interpretation of the statute means that the defendant must make disclosures before the hearing so that the government has the opportunity to make the recommendation. Thus, the disclosures cannot be made at the sentencing hearing.

The majority noted that precedential opinions from this circuit and others do not directly address the question presented here. The government attempted to rely on United States v. Galvon-Manzo, 642 F.3d 1260 (10th Cir. 2011) and United States v. Acosta-Olivas, 71 F.3d 375 (10th Cir. 1995). Galvon-Manzo involved defendants who tried to make disclosures during the sentencing hearings to alter untruthful statements they had previously made, thus failing to satisfy the requirements for the safety-valve reduction. In Acosta-Olivas, the district court stated that § 3553(f) only required a defendant to reveal information about his own crime, not that of participants. The Tenth Circuit panel reversed and remanded the case, giving the defendant the opportunity to provide all of the information he had. The court stated that in several opinions of sister circuits, courts have assumed without deciding that the safety-valve exception applies at resentencing hearings.

The majority also stated that a Ninth Circuit opinion relied on by the government, United States v. Ferret-Castellanos, 108 F.3d 339, 1996 WL 733198 (9th Cir. 1996) (Table) (unpublished) was distinguishable. In that case, the court's primary concern was the truthfulness of the information, rather than the timeliness.

Finally, the majority made a finding that the district court's error was not harmless. After reviewing the transcript, the majority disagreed with the government that the district court would have denied the safety-valve reduction based on the merits of the request. The case was remanded for resentencing, including a determination on Figueroa's eligibility for safety-valve relief.

Judge Phillips issued a dissenting opinion. He stated that although a defendant was entitled to request a safety-valve reduction for the first time at a resentencing hearing, he disagreed with the majority that the defendant could rely on information provided to the government for the first time after the initial sentencing.

To read the full opinion, please visit:
https://www.ca10.uscourts.gov/opinions/13/13-6278.pdf

Panel: Matheson, Phillips, Moritz

Date of Issued Opinion: March 24, 2015

Docket Numbers: 13-6278

Decided: Remanded to district court for resentencing.

Counsel:

Virginia L. Grady, Federal Public Defender, Interim, and O. Dean Sanderford, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant Jesus Figueroa-Labrada, a/k/a Chuy.

Sanford C. Coats, United States Attorney, Steven W. Creager, Special Assistant U.S. Attorney, and David P. Petermann, Assistant U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee United States of America.

Author: Moritz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 03/27/2015 06:59 PM     10th Circuit     Comments (0)  

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...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

Edited: 04/08/2015 at 09:12 AM by Media Alerts Moderator

    Posted By: Glenn Koppel @ 01/30/2015 05:29 PM     9th 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.

Las