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September 26, 2016
  American Farm Bureau Federation v. U.S. Environmental Protection Agency - Eighth Circuit
Headline Eighth Circuit panel reverses district court and holds that the EPA abused its discretion in disclosing personal information of animal feeding operation owners

Area of Law Standing; Privacy

Issue(s) Presented Whether associations had standing to bring suit on behalf of their members, and whether the Environmental Protection Agency (EPA) properly released personal information of concentrated animal feeding operation owners in response to a Freedom of Information Act (FOIA) request.

Brief Summary The Clean Water Act regulates the discharge of pollutants into U.S. waters by numerous sources, including concentrated animal feeding operations (CAFOs). As part of its responsibilities under the Clean Water Act, the EPA compiled a national inventory of CAFOs. The EPA obtained the information for the inventory by requesting publically available information from a number of states, by retrieving information from state websites, and by gathering information from federal data systems and its regional offices. The information included the legal name of CAFO owners, along with the owner's mailing address, email address, primary telephone number, and other information about the CAFO and its owner.

As the EPA was compiling this inventory, three organizations submitted a FOIA request for the EPAs records with information about CAFOs. In response, the EPA released the information it had then compiled to the requesters. The information released included personal contact information for the CAFO owners. The American Farm Bureau Federation (Farm Bureau) and National Pork Producers Council (Producers Council) filed a "reverse" FOIA suit, alleging that the records should have been withheld under Exception 6 of FOIA, which excludes from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. § 522(b)(6). The district court granted summary judgment for the EPA, holding that the Farm Bureau and Producers Council lacked standing to bring the suit because the personal information of their members was already publicly available when released.

On appeal, a panel of the Eighth Circuit reversed. It held that the district court improperly conflated the requirements of standing with the merits for the claims raised. Whether the information was publically available pertained to the merits of the claim, not the question of standing. Because the individual members of the associations would have standing to challenge the EPAs release of their personal information, regardless of whether that information was publically available, the Farm Bureau and Producers Council also had standing to bring the suit.

Although the district court's decision was ostensibly a ruling on lack of standing, its decision in substance addressed the merits of whether the EPA's disclosure constituted an unwarranted invasion of personal privacy subject to Exception 6 of FOIA. As such, the Eighth Circuit found no reason to remand to the district court for a determination on that question, and considered the merits of the claim as part of this appeal.

The Eighth Circuit disagreed with the district court, and held that the EPA's release of the CAFO owners' personal information was an abuse of discretion. It held that the CAFO owners had a substantial privacy interest in the personal information that was disclosed. It also noted that, even if the information was publically available through state websites and state records requests, there is a vast difference between public records that might be found after a diligent search through various files and a single, compiled set of information from a government agency. Finally, the court held that the substantial privacy interest of the CAFO owners was not outweighed by the public's interest in disclosure.

The Eighth Circuit remanded the case for further proceedings on the plaintiffs' request for injunctive relief.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/09/151234P.pdf

Panel Circuit Judges Colloton, Loken, and Murphy

Date of Issued Opinion September 9, 2016

Decided Reversed and remanded

Docket Number 15-1234

Counsel Michael B. Kimberly for Appellants and Tarah Elizabeth Heinzen and Pamela A. Marentette the Appellees

Author Circuit Judge Colloton

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

    Posted By: Joelle Larson @ 09/26/2016 10:51 AM     8th Circuit     Comments (0)  

September 25, 2016
  Harrison v. Republic of Sudan
Case Name: Harrison v. Republic of Sudan

Headline: Second Circuit Denies Sudan's Request for Rehearing in U.S.S. Cole Bombing Case, Despite United States' Amicus Brief in Support

Area of Law: International

Issue(s) Presented: Whether service of process to a foreign state's embassy in Washington D.C. is consistent with the Federal Sovereign Immunities Act and Vienna Convention.

Brief Summary: In 2000, the bombing of the U.S.S. Cole in the Port of Yemen injured and killed numerous American sailors. Sailors and spouses of sailors harmed or killed in the explosion sued Sudan under the Federal Sovereign Immunities Act (FSIA), alleging that Al Qaeda was responsible for the attack and that Sudan had provided material support to Al Qaeda. The suit was brought in the D.C. District Court and, at plaintiffs' request, the Clerk of the D.C. District Court served the summons and complaint on Sudan by mailing the papers to the Minister of Foreign Affairs of Sudan via the Sudanese Embassy in Washington, D.C. Return receipt came back to the Clerk of Court six days later, but Sudan did not substantively respond to the complaint. After the requisite time had elapsed without an answer or other responsive pleading, the Clerk of Court entered a default judgment against Sudan in the amount of $314,705,896. The judgment was later registered in the Southern District of New York, which issued three turnover orders, directing certain banks to turnover assets of Sudan to plaintiffs. Sudan then filed a notice of appearance and appealed the turnover orders to the Second Circuit, which affirmed them. Sudan filed a petition for panel rehearing or rehearing en banc, and the United States filed an amicus brief in support of Sudan's petition. The request for panel rehearing was denied, on grounds that although it was a "close call," the better reading of the FSIA favored the plaintiffs. To read the whole opinion, please visit http://www.ca2.uscourts.gov/de...5d3f5/1/hilite/


Extended Summary: The Federal Sovereign Immunities Act ("FSIA" or "the Act") contains specific provisions to maintain the integrity of foreign relations. One of those provisions dealing with sufficient service of process is at issue in this case. This provision states that service shall be made upon a foreign state "by sending a copy of the summons and complaint and a notice of suit...to the head of the ministry of foreign affairs of the foreign state concerned." The statute does not specify a particular location to which the papers must be sent.

In its amicus brief supporting Sudan, the United States argued that mailing the papers to "the foreign minister at a place other than the foreign ministry" is not authorized by FSIA. The court disagreed, explaining that "a mailing addressed to the minister of foreign affairs via Sudan's embassy in Washington, D.C. was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person."

The court further disagreed with Sudan's and the United States' contention that this interpretation placed the United States in violation of the Vienna Convention. In particular, the United States had argued that this interpretation would "complicate international relations by subjecting the United States (and other countries) to service of process via any of its diplomatic missions throughout the world." The court explained that here, process was served to the Minister of Foreign Affairs at the foreign mission, and not on the foreign mission itself or the ambassador. "The papers were specifically addressed to the Minister of Foreign Affairs via the embassy, and the embassy sent back a return receipt acknowledging receipt of the papers," the court explained. "We do not preclude the United States (or any other country) from enforcing a policy of refusing to accept service via its embassies." Sudan's acceptance of the service papers, however, constituted consent to this form of service.

The court also rejected Sudan's factual argument that the mailing was never accepted because the signatures on the return receipt were illegible. The court stated that this argument had been raised too late for consideration at this stage of the case.

Finally, the Second Circuit addressed the argument that the district court had erred in issuing the turnover orders without first obtaining a license from the Treasury Department's Office of Foreign Assets Control ("OFAC"). The Court explained that, although a OFAC license is normally required before attaching assets from a foreign state that have been frozen under certain sanction regimes, here a license was not required because the funds at issue in all three turnover orders were already subject to turnover pursuant to the Terrorism Risk Insurance Act. Accordingly, the court denied the petition to the extent it sought panel rehearing. (It did not address the request for rehearing en banc.)

Panel: Circuit Judges Lynch and Chin; District Judge Korman, sitting by designation

Argument Date: 03/11/2016

Date of Issued Opinion: 09/22/2016

Docket Number: No. 14-121-cv

Decided: Petition for panel rehearing denied

Case Alert Author: Hannah Bartges

Counsel: Andrew C. Hall, Lamb and Hall, P.A., for Plaintiffs-Appellees Harrison, et al., Christopher M. Curran, White & Case, LLP, for Defendant-Appellant Republic of Sudan, and David S. Jones (Assistant U.S. Attorney) for the United States of America as Amicus Curiae.

Author of Opinion:
Judge Chin

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 09/25/2016 09:44 PM     2nd Circuit     Comments (0)  

  U.S. v. Sheehan - Second Circuit
Headline: Second Circuit Affirms Conviction for Use of Destructive Device to Commit Extortion, Finding Jury Reasonably Concluded Partially Constructed Pipe Bomb was a Destructive Device

Area of Law: Criminal Law

Issue(s) Presented: Whether there was sufficient evidence to establish that a partially constructed pipe bomb planted by defendant constituted an explosive device and whether instructions provided to the jury, or the prosecutor's statements during summation, were improper.

Brief Summary: Following a jury trial, the defendant, Daniel Sheehan, was convicted in the United States District Court for the Eastern District of New York for extortion and use of a destructive device to commit extortion when he sought to extort payment from Home Depot stores by placing a device, that he contended was an inert pipe bomb, in one Home Depot store and threatened to plant similar devices in other stores if he were not paid. On appeal, Sheehan challenged his conviction for use of a destructive device to commit extortion, contenting the device he planted lacked an igniter and therefore was incomplete. The Second Circuit rejected his challenge, holding that the government had to show only that the device was capable of exploding. The Second Circuit also rejected Sheehan's claim that the jury was improperly instructed that it could convict if the planted device constituted a "combination of parts" designed to "convert[] a device into an explosive bomb and from which an explosive bomb could be readily assembled" and found that the government's comments in summation did not deprive him of a fair trial.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...d69f94b46b9/2/hilite/


Extended Summary:
Defendant Daniel Sheehan was tried before a jury in the United States District Court for the Eastern District of New York for extortion, in violation of 18 U.S.C. § 1951, and use of a destructive device to commit extortion in violation of 18 U.S.C. § 924(c)(1)(B)(ii). The evidence presented at trial, including a confession made by Sheehan, established that after practicing assembling and detonating a pipe bomb in his shed, Sheehan assembled another device and placed it in a cardboard light fixture box previously purchased from a Home Depot. Later, Sheehan placed the cardboard box containing the device in a Home Depot store but did not initially connect the pull string (a triggering mechanism used to detonate the device when box is picked up) to the shelf, but returned to the Home Depot a week later and affixed the string. He subsequently messaged the store manager stating there was a bomb in the lighting department, that the manager was in no danger, and that he was seeking payment of 2 million dollars. The store manager called the bomb squad which used a robot to unscrew the bomb cap in an attempt to disassemble the device and the device exploded, damaging parts of the store. Sheehan was convicted and appealed, challenging only his conviction for use of a destructive device to commit extortion.

A destructive device is defined for purposes of the applicable criminal statute as either an explosive bomb, or "any combination of parts either designed or intended for use in converting any device into any destructive device [listed in the statute] and from which a destructive device may be readily assembled." On appeal, Sheehan argued the evidence was insufficient to establish his guilt on the enhanced charge of using a destructive device to commit extortion because the device he left in Home Depot was not a "destructive device" and could not be readily converted into such a device. The evidence presented at trial indicated that, although Sheehan's statement had indicated he had placed one in the device, none was found at the scene, and Sheehan argued that the evidence was insufficient to establish that an igniter was present. The government argued that the explosion could have destroyed the igniter. On appeal, the Second Circuit rejected Sheehan's sufficiency challenge, holding that a reasonable jury could have found that a device that is incapable of detonating in its intended manner, but still capable of detonating, is an explosive bomb within the meaning of the statute.

Sheehan also argued that the jury should not have been instructed that he could be convicted on the theory that the device constituted a "combination of parts" designed to convert a device into a bomb and "from which an explosive bomb may be readily assembled," because such a combination‐of‐ parts theory is inapplicable to completed devices. Moreover, he contended that the court was required to instruct the jury that subjective intent is required on such a charge. The court rejected these arguments, finding that the phrase "any combination of parts" extends to both fully disassembled and partially completed devices and, therefore, a combination‐of‐parts instruction is appropriate as long as a rational jury could find a device was at least partially disassembled and, further held that subjective intent was not required. Lastly, Sheehan argued, for the first time on appeal, that the government's summation deprived him of a fair trial because various statements mischaracterized the evidence, reflected the prosecutor's personal beliefs about defense counsel, or denigrated the defense expert. The court determined that most of the comments made were permissible and, even if some of the comments were improper, they did not amount to flagrant abuse, the standard required because the objection was not preserved at trial.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...d69f94b46b9/2/hilite/

Panel (if known): Circuit Judges Winter, Wesley, and Lynch.

Argument Date: 04/21/2016

Date of Issued Opinion: 09/23/2016

Docket Number:
No. 15-1028

Decided: Affirmed

Case Alert Author: Robyn Downing

Counsel: Jonathan I. Edelstein, Edelstein & Grossman, for Defendant‐Appellant Daniel Patrick Sheehan. Jo Ann M. Navickas and Lara Treinis Gatz, Assistant United States Attorneys (of counsel), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York.

Author of Opinion: Judge Lynch

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Professor Elyse Diamond

    Posted By: Elyse Moskowitz @ 09/25/2016 07:33 PM     2nd Circuit     Comments (0)  

September 23, 2016
  Johnson v. City of Philadelphia - Third Circuit
Headline: Third Circuit Finds that Police Officer's Use of Deadly Force to Protect against Potentially Fatal Attack was Justified Even if Initial Contact with Mentally Disturbed Individual Did Not Follow Department Protocol

Area of Law: Fourth Amendment, Excessive Force

Issue(s) Presented: Whether police officer's use of force was objectively reasonable in the circumstances?

Brief Summary: The plaintiff, as administrator of Kenyado Newsuan's estate, sued Officer Thomas Dempsey and the Philadelphia Police Department for using excessive force while attempting to arrest Mr. Newsuan, which force ended in Newsuan's death. Newsuan was high on PCP and standing naked in the street when Dempsey first confronted him. Philadelphia Police Department policy called for employing a more cautious and less confrontational approach than that pursued by Dempsey when dealing with severely mentally disturbed individuals. The plaintiff argued that, if Dempsey had followed department policy, Newsuan would never have attacked Dempsey and attempted to grab his gun, and therefore would never have been shot by Dempsey in self-defense. While agreeing that Dempsey should have behaved differently, the Third Circuit found that Newsuan's sudden and violent attack interrupted the chain of causation and was a superseding cause of Newsuan's death, thereby relieving Dempsey of any responsibility for Newsuan's demise.

Extended Summary: Philadelphia Police Officer Thomas Dempsey arrived at the 5800 block of North Mascher Street in response to several reports that a naked man was standing in the street yelling and flailing his arms. There he encountered Kenyado Newsuan, who was indeed naked, yelling and flailing his arms. He was also high on PCP, which fact Dempsey probably knew. The Philadelphia Police Department instructs officers who encounter a severely mentally disturbed individual to, among other things, request adequate backup, maintain a zone of safety, attempt to deescalate the situation through communication, and avoid taking immediate aggressive actions. Officer Dempsey did not follow these directives. Instead he exited his patrol car with taser in hand and ordered Newsuan to come to where Dempsey was standing. After initially ignoring Dempsey's order, Newsuan eventually approached Dempsey. When he got too close, Dempsey tasered him. Subsequently, there was a violent confrontation between the two, with Newsuan hitting Dempsey, choking him, and banging him against the squad car. Ultimately, Newsuan tried to get Dempsey's gun from his holster. At that point, Dempsey shot and killed Newsuan.

Plaintiff, as administrator of Newsuan's estate, sued Officer Dempsey and the City of Philadelphia for using unconstitutionally excessive force. The District Court granted summary judgment in favor of the defendants, holding that there was no genuine material dispute that Officer Dempsey reasonably used deadly force to defend himself from Newsuan's attack. Plaintiff appealed.

The Third Circuit analyzed the case from the perspective of a reasonable officer in light of the totality of circumstances. It found that Dempsey was justified in using deadly force to defend himself once Newsuan began reaching for his gun. The plaintiff argued that even if the use of lethal force was justified after Newsuan's attack, the seizure as a whole was unreasonable because Dempsey did not comply with the Police Department directive regarding encounters with severely mentally disabled persons. Had Dempsey followed police department policy, the violent confrontation would have never occurred and Dempsey would never have been required to use deadly force to protect his own life. The Court, however, found that the plaintiff's argument failed on the fundamental tort principle of proximate cause, specifically the principle that a superseding cause breaks the chain of proximate causation. The Court concluded as a matter of law that Newsuan's violent, precipitate, and illegal attack on Officer Dempsey severed any causal connection between Dempsey's initial actions and his subsequent use of deadly force. Newsuan's assault coupled with his attempt to gain control of Dempsey's gun was the direct cause of his death.

The Court emphasized a note of caution regarding the straightforward analysis of the proximate cause issue. It noted that the opinion should not be misread to broadly immunize police officers from Fourth Amendment liability whenever a mentally disturbed person threatens an officer's physical safety. This case presented exceptional circumstances, namely the sudden and unexpected attack, that forced the officer into a position to defend himself. In other situations, particularly when plaintiffs can show that mentally ill individuals are likely to react in certain ways to certain provocations, it may be that the chain of causation will not be broken.

The Court affirmed the lower court's granting of summary judgment to the defendants.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/152346p.pdf

Panel: Fuentes, Krause, and Roth

Argument Date: February 11, 2016

Date of Issued Opinion: September 20, 2016

Docket Number: 15-2346

Decided: Affirmed

Case Alert Author: Jasmine M.Williams

Counsel: Armando A. Pandola, Jr., Esq. and Alan E. Denenberg, Esq. of Abramson & Denenberg, P.C., Attorneys for Appellants; Craig R. Gottlieb, Esq., of the City of Philadelphia Law Department, Attorneys for Appellees

Author of Opinion: Circuit Judge Fuentes

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 09/23/2016 01:37 PM     3rd Circuit     Comments (0)  

  Lane v. Anderson, et al. -- Fourth Circuit
Speak Up! Wounded Officer May Bring First Amendment Claim Arising From Police-Related Shooting

Areas of Law: First Amendment; Constitutional Law; Civil Procedure; Employment

Issues Presented: Whether the district court lacked subject matter jurisdiction under the Rooker-Feldman doctrine in a First Amendment retaliatory discharge case when the plaintiff's claim previously failed in state court. Whether the Baltimore City Sheriff was entitled to qualified immunity in a 42 U.S.C. § 1983 claim by a police officer who was terminated after giving media interviews about potential police misconduct and corruption. Whether the Baltimore City Sheriff was entitled to Eleventh Amendment immunity in a 42 U.S.C. § 1983 First Amendment retaliation claim. Whether Baltimore City was liable for the Baltimore City Sheriff's termination of a police officer.

Brief Summary: In an unpublished per curiam opinion, the United States Court of Appeals for the Fourth Circuit held the District Court had subject matter jurisdiction under the Rooker-Feldman doctrine in a 42 U.S.C. § 1983 action for retaliatory discharge though the claim previously failed in Maryland state court. Moreover, the Fourth Circuit denied qualified immunity to the Baltimore City Sheriff on the basis that the First Amendment protects against the termination of a police officer for speaking out against misconduct and corruption in a media interview. The Fourth Circuit also reversed the District Court's judgment granting Eleventh Amendment immunity to the Baltimore City Sheriff and remanded the case for full consideration of the four-factor Ram Ditta analysis. Finally, the Fourth Circuit affirmed the District Court's holding that Baltimore City could not be held liable for the Baltimore City Sheriff's termination of a deputy sheriff.

Extended Summary: On September 15, 2008, appellant James Lane ("Lane"), a former deputy sheriff, suffered a gunshot wound to the face while attempting to execute an arrest warrant with fellow officers at a home in the Sandtown-Winchester neighborhood in West Baltimore. During the incident, another officer shot and killed 25-year-old Emory Lamont Lewis ("Lewis"), who was wanted under a different warrant for the first-degree murder of his former girlfriend. After the incident, the Baltimore City Sheriff's Office ("BCSO") conducted an internal investigation and concluded it was Lewis who shot Lane in the face. Skeptical of the investigation's conclusions, Lane informed his superiors that he believed another officer accidentally shot him during the incident. Lane's superiors dismissed his concerns and transferred Lane out of the Warrant Apprehension Task Force.

In December 2010, Lane gave interviews to multiple media outlets, during which he expressed doubt about the internal investigation and concern that the BCSO was attempting to cover up misconduct. In response to Lane's interviews, the BCSO administratively charged Lane with two counts of engaging in conduct that reflected unfavorably upon the BCSO, two counts of representing the BCSO publicly without permission, one count of publicly criticizing the BCSO, and one count of making false statements. The hearing board found Lane guilty of five out of the six counts, but concluded that Lane was not guilty of making false statements. Despite the hearing board's recommendation of a five-day suspension without pay, Baltimore City Sheriff John W. Anderson ("Sheriff Anderson") terminated Lane on the basis that his actions brought "disrepute" to the agency.

After unsuccessfully appealing his termination through Maryland state court, Lane filed in federal court a 42 U.S.C. § 1983 action against Sheriff Anderson, in his official and individual capacities, and against Baltimore City, alleging retaliatory discharge in violation of his First Amendment right to free speech and in violation of the Maryland Declaration of Rights. Dismissing his complaint, the District Court concluded (1) it lacked subject matter jurisdiction under the Rooker-Feldman doctrine; (2) Sheriff Anderson was entitled to qualified immunity and Eleventh Amendment immunity; and (3) Baltimore City was not liable for Sheriff Anderson's actions as a Maryland official.

The Rooker-Feldman doctrine bars federal district courts from directly reviewing state-court decisions. As a threshold matter, the Fourth Circuit held that the Rooker-Feldman doctrine did not apply in the instant case, because Lane's claim sought relief from the injury caused by his termination and not by the state-court decision.

Turning to the issues of immunity, the Fourth Circuit engaged in the two-prong analysis set forth in Smith v. Gilchrist, 749 F.3d 302 (4th Cir. 2014), and concluded that Sheriff Anderson was not entitled to qualified immunity. This two-factor analysis requires an examination of whether the allegations substantiate a violation of a federal statutory or constitutional right, and whether the violation was of a clearly established right of which a reasonable person would have known. First, the Fourth Circuit determined that the First Amendment protected Lane's speech on the basis that (1) he spoke on a matter of public concern when he discussed potential police misconduct and corruption to the media; (2) Sheriff Anderson failed to justify Lane's termination by asserting only generalized concerns about the speech's polarizing effects; and (3) Lane's speech was a substantial factor in his termination. Turning to the second prong in the analysis, the Fourth Circuit found that, at the time of Lane's discharge, it was clearly established in the circuit that the First Amendment protects against the termination of a law enforcement officer for speaking out against misconduct and corruption surrounding a police-involved shooting. On the issue of Eleventh Amendment immunity, the Fourth Circuit remanded the case for full consideration, reasoning that the District Court erroneously failed to employ the four-factor test described in Ram Ditta v. Maryland National Capital Park and Planning Commission, 822 F.2d 456 (4th Cir. 1987).

Finally, the Fourth Circuit affirmed the District Court's holding that Baltimore City could not be held liable for Lane's termination on the basis that Sheriff Anderson did not act as a Baltimore City policymaker when making employment decisions. Citing Monell v. Department of Social Services of New York, 436 U.S. 658 (1978), the Fourth Circuit recognized that a municipality may be liable in a § 1983 claim if an official municipal policy resulted in the alleged constitutional violation. Although he had final policy-making authority for employment decisions within the BCSO, Sheriff Anderson derived his authority from state law and therefore did not act as a Baltimore City policymaker when he terminated Lane.

To read the full opinion, click here.

Panel: Judges King, Diaz, and Thacker

Argument Date: 05/12/2016

Date of Issued Opinion: 08/17/2016

Docket Number: 15-2153

Decided: Affirmed in part; reversed and remanded in part by unpublished per curiam opinion

Case Alert Author: Linda Morris, Univ. of Maryland Carey School of Law

Counsel: Howard Benjamin Hoffman, Rockville, Maryland, for Appellant. Jason L. Levine, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Annapolis, Maryland; Jason Robert Foltin, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Steven H. Goldblatt, Director, Shon Hopwood, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Brian E. Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee Anderson. George A. Nilson, City Solicitor, William R. Phelan, Jr., Chief Solicitor, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellee Mayor and City Council of Baltimore. Deborah A. Jeon, Sonia Kumar, Nicholas Steiner, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, Baltimore, Maryland; Debra Gardner, Tassity Johnson, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici American Civil Liberties Union Foundation of Maryland and Public Justice Center.

Author of Opinion: Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 09/23/2016 08:35 AM     4th Circuit     Comments (0)  

September 22, 2016
  Watson v. Rozum - Third Circuit
Headline: Court Finds Prisoner's Retaliation Claim Can Survive if Evidence of Prisoner Misconduct is not Clear and Overt

Area of Law: Retaliation - Deprivation of Rights

Issue(s) Presented: Under what circumstances can a prisoner's claim for retaliation survive attempts to show that the prisoner would have been disciplined even if he had not complained about his treatment?

Brief Summary: Prisoner Joseph Watson filed a claim against prison officials for illegal retaliation. He claimed that prison officials wrote him up for misconduct for having contraband in his cell (a radio with a taped-on antenna) only because he filed a grievance claiming a guard had broken off the antenna to his radio (which had only been loose before) during a routine cell search. The prison moved for summary judgment on his claim under the "other decision" doctrine, which holds that prison officials cannot be charge with retaliation if they can demonstrate that the prisoner would have been punished for his actions even if he had not engaged in protected activity, in this case even if he had not filed a grievance about the radio. While the District Court granted the prison's motion, the Third Circuit reversed, finding that summary judgment was only appropriate if the rules violation by the prisoner was "clear and overt." That was not true here. The Court noted that the prisoner had kept the same radio in his cell for over a year without any problems, that other inmates had broken radios and had not had misconduct charges brought against them, and that the decision to file a misconduct charge against Watson appears to have been made only after Watson said he was going to file a grievance.

Extended Summary: Joseph Watson is an inmate at the state prison in Somerset, Pennsylvania. Watson filed a claim against prison officials for retaliating against him for exercising his First Amendment rights. Watson's claim arose from the alleged mishandling and confiscation of his radio during a routine cell search. Watson alleged that while inspecting his radio, Officer Kline pulled the antenna so hard that it broke off of the radio. Officer Kline claimed the antenna was already broken, but secured with tape. Watson claimed it was merely loose. After Kline failed to take responsibility for breaking the antenna, Watson requested a grievance form from Captain Simosko, who refused to provide one. Later that day, Watson was summoned to a meeting with Officer Coutts about the broken radio, at which meeting Officer Coutts supposedly admonished Watson for giving Kline and Simosko a "hard time" by asking for a grievance form and by requesting that the radio be fixed. Coutts allegedly told Watson that he should have simply dropped the matter, and because he didn't, Coutts would be filing a misconduct charge against Watson. Watson was eventually able to file his grievance after he secured the proper form from another prisoner, but before he could do that, he was officially charged with a Class I misconduct for having a broken radio in his cell. (Broken radios are considered contraband under prison regulations.) The misconduct form was issued about 6 hours after the initial search of Watson's cell.

Watson filed his retaliation lawsuit against several individuals, including Officers Coutts. The District Court granted summary judgment on this claim, ruling that the officials would have issued the misconduct against Watson even if he hadn't filed a grievance (the "same decision" defense), because the radio was contraband, and keeping contraband in one's cell is a punishable offense. The same decision defense requires the prison officials to establish that "they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest."

The Court of Appeals found that summary judgment in favor of Officer Coutts was not appropriate, because the record supported conflicting inferences regarding Coutts' motive in issuing Watson's misconduct. Although an inference of improver motive can be rebutted if the evidence of a violation of prison regulations is "clear and overt," in this case the Court found this not to be true. The Court noted evidence in the record that Watson's radio had been broken for at least a year, as well as evidence that there were other inmates who had broken radios that had not been confiscated and for which they had not been issued misconduct citations. The evidence also showed that Officer Kline did not issue a misconduct citation to Watson at the time he confiscated the radio, but rather that the misconduct was issued only after Watson announced he was going to file a grievance.

Accordingly, the Third Circuit found that granting summary judgment for the claim against Officer Coutts was not appropriate. The decision of the lower court was affirmed in all respects except with respect to the summary judgment for Officer Coutts, which judgment was reversed and remanded for further proceedings.

Judge Ambro filed a concurring opinion in which he expressed a concern about what to do in future situations where, unlike in the instant case, prison officials can prove that punishment would normally be imposed for the conduct at issue but there is still a strong indication that the punishment was actually imposed in retaliation for exercising protected activities. He suggested a hypothetical in which a prison official admits that the prisoner would never have been charged with misconduct had he not filed a complaint against prison officials.

Judge Hardiman filed a dissenting opinion.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/133510p.pdf

Panel: McKee, Ambro, and Hardiman

Argument Date: October 8, 2015

Date of Issued Opinion: August 23, 2016

Docket Number: 13-3510

Decided: Affirmed in part, Reversed in part

Case Alert Author: Jasmine M.Williams

Counsel: Kathleen G. Kane Attorney General of Pennsylvania Kemal A. Mericli, Counsel for Appellees; Benjamin R. Barnett, Ellen L. Mossman, Counsel for Appellant

Author of Opinion: Chief Judge McKee

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 09/22/2016 10:47 AM     3rd Circuit     Comments (0)  

  Reed Dempsey v. Bucknell University - Third Circuit
Headline: Third Circuit Finds Bucknell Police Not Liable for Damages as a Result of Bringing Assault Charges against Bucknell University Student

Area of Law: False Arrest, Malicious Prosecution

Issues Presented: Did recklessly omitted facts from a charging affidavit lead to the issuance of a faulty warrant against a Bucknell University student?

Brief Summary:

The Third Circuit affirmed the District Court's grant of summary judgment for the malicious prosecution claim of Bucknell student Reed Dempsey, because the court determined that, even taking into account certain facts recklessly omitted from the charging affidavit, a reasonable jury could still not find a lack of probable cause for the original charges filed against Dempsey. Dempsey had been accused of assaulting a fellow Bucknell University student, Kelly Stefanowicz, in their residence hall. After a couple of months, the charges against Dempsey were dropped by the District Attorney. A year later Dempsey filed a civil rights suit against Bucknell University and Bucknell University Public Safety (BUPS) Officers (the Bucknell Defendants") alleging a violation of his Fourth Amendment right to be free from unlawful search and seizure. To analyze Dempsey's claim, the Third Circuit first identified those material facts describing the alleged assault that were omitted from the sworn affidavit Bucknell police used to obtain the original arrest warrants against Dempsey. The Court then reconstructed the affidavit with the omitted facts included, and ultimately decided that no reasonable jury could conclude that this revised affidavit lacked probable cause for issuing an arrest warrant. The summary judgment dismissal of Dempsey's claims by the trial court was affirmed.

Extended Summary:

On September 7, 2010, Reed Dempsey was charged with assaulting fellow Bucknell University student Kelly Stefanowicz in their residence hall. Two days later, additional charges of indecent assault and false imprisonment were brought against Dempsey. In the course of investigating the alleged crime, BUPS Officers interviewed Stefanowicz, Dempsey, and ten other undergraduate students and also obtained a written statement from Stefanowicz. They also reviewd text messages from Dempsey to Stefanowicz that were sent after the events in question and which demonstrated remorse for his actions. Not surprisingly, not all of the witnesses agreed on all the details of the alleged crimes. It was on the basis of this evidence that BUPS Officers charged Dempsey with wrongdoing.

Less than two months later, the District Attorney of Union County, Peter Johnson, withdrew all charges against Dempsey, explaining that "the nature of the alleged crime and the surrounding circumstances make it difficult to prove what happened beyond a reasonable doubt." A year after that, Dempsey brought suit against the Bucknell Defendants claiming false arrest, malicious prosecution, and false imprisonment, among other claims. The District Court dismissed some of the claims and, after discovery, granted summary judgment as to the rest. Dempsey appealed and argued that the District Court incorrectly concluded that information omitted from the charging affidavit by Officer Julie Holtzapple was not material to the probable cause determination. Dempsey contended that Officer Holtzapple's affidavit reflected a false version of events and that an accurate affidavit would not have established probable cause to charge him with any crime.

In analyzing Dempsey's appeal, the Third Circuit noted that a plaintiff alleging malicious prosecution must show two things - first, that the charging officer's affidavit recklessly made false statements or omissions, and second, that those false statements or omissions were necessary to the finding of probable cause for violation of the law. The Court also made clear that once a determination is made that false information was included or that important information was omitted in an affidavit of probable cause, the court must then create a reconstructed affidavit which includes essential omitted facts and which corrects material falsehoods. In this case, because the District Court did not perform the necessary reconstruction, the Third Circuit undertook the task on its own.

After a close examination of the record, the Court agreed with Dempsey that a number of material facts had been omitted from the affidavit. But even after adding those facts to the affidavit - including the contradictory eyewitness testimony and the disagreement over how much time Dempsey and Stefanowicz had spent in his room alone together - the Court concluded that no reasonable jury could have found that probable cause for the charges did not still exist, especially given the extent of Stefanowicz's injuries, the strength of her allegations, and Dempsey's subsequent text messages expressing remorse. Accordingly the Third Circuit affirmed the District Court's grant of summary judgment in favor of the Bucknell Defendants.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/151328p.pdf

Panel: Vanaskie, Shwartz and Krause, Circuit Judges

Argument Date: January 26, 2016

Date of Issued Opinion: August 22, 2016

Docket Number: No. 15-1328

Decided: Affirmed

Case Alert Author: Jessica Wood

Counsel: Dennis E. Boyle, Esq., Kenneth E. Raleigh, Esq., Counsel for Appellants

Amy C. Foerster, Esq., James A. Keller, Esq., Cory S. Winter, Esq., Counsel for Appellee

Author of Opinion: Krause, Circuit Judge

Circuit: Third

Case Alert Supervisor: Professor Mark Anderson

    Posted By: Susan DeJarnatt @ 09/22/2016 08:53 AM     3rd Circuit     Comments (0)  

September 20, 2016
  Sergeeva v. Tripleton Intl. Ltd., et al. - 11th Circuit
Headline: Eleventh Circuit holds that discovery pursuant to 28 U.S.C. § 1782 reaches documents located outside of the United States sought in conformity with the Federal Rules of Civil Procedure ("FRCP").

Area of Law: Civil Procedure/International Judicial Assistance

Issue: Whether discovery pursuant to 28 U.S.C. § 1782 reaches documents located outside of the United States sought in conformity with the FRCP.

Brief Summary: Anna Sergeeva ("Sergeeva") sought to obtain information from Trident Corporate Services, Inc. ("Trident") through an ex parte application for judicial assistance demonstrating her ex - husband's beneficial ownership of a Bahamian corporation that was an affiliate of Trident. Trident objected to production of documents located outside of the United States arguing that the court lacked authority under section 1782. The Eleventh Circuit affirmed the district court's ruling denying Trident's motion to vacate the order granting judicial assistance and quash the subpoena. The court also affirmed the contempt order and sanctions imposed.

Extended Summary: In a proceeding in Russia to divide marital assets, Sergeeva claimed her former husband was concealing and dissipating marital assets held outside of Russia. The district court granted an application for judicial assistance and ordered the issuance of a subpoena directed to Trident. The court denied Trident's motion to vacate and compelled production of all the documents responsive to the subpoena. After Trident appealed these orders, the district court held Trident in contempt and imposed sanctions for failing to produce responsive documents.
The Eleventh Circuit affirmed the district court, finding the court properly concluded it was authorized to order production of documents located outside of the United States provided they were in the possession, custody, and control of Trident. The court noted that the applicable federal rule relates to the location of the act of production and not the location of the documents. The Eleventh Circuit also affirmed the district court's finding that Trident had control over the responsive documents and the sanctions order.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201513008.pdf

Panel: Jordan and Anderson Circuit Judges, and Dalton (United States District Judge for the Middle District of Florida, sitting by designation).

Argument: N/A

Date of Issued Opinion: August 23, 2016

Docket Numbers: 15 - 13008 & 15 - 15066

Decided: Affirmed

Case Alert Author: Marina Gonzalez, Martha Ferral

Counsel:
Philip Whitworth Engle for Appellant Trident Corporate Services, Inc.
Fredric J. Bold for Appellee Anna Aleksandrovna Sergeeva

Author of Opinion: Dalton, District Judge

    Posted By: Gary Kravitz @ 09/20/2016 01:27 PM     11th Circuit     Comments (0)  

  United States v. Phillips - 11th Circuit
Headline: Eleventh Circuit finds a civil writ of bodily attachment is a warrant within the meaning of the Fourth Amendment.

Area of Law: Constitutional Law/Criminal Procedure

Issue: Whether a civil writ of bodily attachment is a warrant within the meaning of the Fourth Amendment.

Extended Summary: Ted Phillips ("Phillips") had an outstanding writ of bodily attachment against him for unpaid child support and was also wanted by police for questioning on an unrelated matter. As an officer approached Phillips to arrest him, Phillips reached for his waistband and the officer grabbed his hand and removed a loaded firearm from Phillips' waistband. Phillips was subsequently indicted on one count of being a felon in possession of a firearm and an armed career criminal. Phillips moved to suppress the firearm arguing that the civil writ of bodily attachment was insufficient as a basis to arrest him. After the district court denied Phillips' motion to suppress, he conditionally pleaded guilty and was sentenced to the 15 - year mandatory minimum as a career criminal. In affirming, the Eleventh Circuit determined that a writ of bodily attachment for a civil offense, similar to a bench warrant, satisfies the Fourth Amendment. Additionally, the court found that Phillips waived his right to raise the sentencing issue on appeal.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201414660.pdf

Panel: William Pryor and Jill Pryor, Circuit Judges, and Richard W. Story (United States District Judge for the Northern District of Georgia, sitting by designation).

Argument: July 14, 2016

Date of Issued Opinion: August 23, 2016

Docket Number: 14 - 14660

Decided: Affirmed

Case Alert Author: Marina Gonzalez, Martha Ferral

Counsel:
Christine Carr O'Connor for Appellant Ted Phillips
Francisco Raul Maderal for Appellee United States of America

Author of Opinion: Circuit Judge William Pryor

    Posted By: Gary Kravitz @ 09/20/2016 10:33 AM     11th Circuit     Comments (0)  

  B.C. et. al. v. Mount Vernon School District
Headline: Second Circuit Holds that an Individual with a Disability under the IDEA Does Not Categorically Qualify as an Individual with a Disability under the ADA and Section 504

Areas of Law: Education

Issue Presented: Whether an individual with a "disability" under the IDEA categorically qualifies as an individual with a "disability" under the ADA and Section 504.

Brief Summary: Two former students in the Mount Vernon School District sued the District and other defendants under the Americans with Disabilities Act (the "ADA") and Section 504 of the Rehabilitation Act ("Section 504"). Each of these two students had previously been classified as a child with a disability under the Individuals with Disabilities Education Act ("IDEA"), and had received special education services on that basis. In the instant lawsuit, they claimed that the way the school district provided academic intervention services violated the ADA and Rehabilitation Act by having a disparate impact on students with disabilities. The plaintiffs' only evidence that they were in fact covered by the ADA and the Rehabilitation Act was their previous classification as having a disability under the IDEA. In a case of first impression, the Second Circuit held that an IDEA disability does not necessarily constitute a disability under the ADA and Section 504, noting that the statutes defined "disability" differently. "The ADA [and, by incorporation, Section 504] asks whether an impairment 'substantially limits' a major life activity, while the IDEA trains on whether an impairment necessitates 'special education and related services,'" the court explained. The court noted that although "many, if not most, IDEA-eligible individuals" will also fall under the ADA definition, that showing must be supported by evidence. Here, because the plaintiffs had failed to present such evidence, the Second Circuit affirmed the dismissal of their claim.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...7bca30a4136/1/hilite/

Extended Summary: Two parents, individually and on behalf of their two minor children (former students in the Mount Vernon School District), brought this action in the United States District Court for the Southern District of New York against the Mount Vernon School District, the Board of Trustees, the District Superintendent, the Assistant Superintendent, the NYSED, and the Title I Director. In their lawsuit alleging discrimination under ADA and Section 504, plaintiffs-appellants relied on statistical data showing that the school district offered Academic Intervention Services ("AIS," which referred to noncredit bearing courses intended for students at risk of not meeting state performance standards) to children with disabilities under the IDEA at a higher rate than to children without same. Plaintiffs-appellants claim that the district's policy of offering these noncredit bearing AIS courses during school hours prevented them from earning the number of credits necessary to advance to a higher grade. Consequently, they argue, such policy disparately impacted students with disabilities in violation of ADA and Section 504.

The lawsuit presented a question of first impression to the Circuit: whether a "disability" under the IDEA categorically qualifies as a "disability" under the ADA and Section 504, such that data regarding "children with a disability" under IDEA suffices to establish a prima facie case in a claim predicated on the plaintiff having a "disability" under ADA and Section 504. The Second Circuit held it does not.

In its de novo review of the district court's decision, the Second Circuit outlined the almost identical standards adopted by ADA and Section 504 for the protection of individuals with a disability. The ADA and Section 504 require the showing that the plaintiff (1) is a qualified individual with a disability; (2) was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by the public entity; and that (3) such exclusion or discrimination was due to plaintiffs' disability. Additionally, the Court explained that exclusion or discrimination may take the form of inter alia, disparate impact, and that to establish a prima facie case under a disparate impact theory, a plaintiff is required to demonstrate (1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices. The showing of the latter requirement, the Court explained, ordinarily requires that plaintiffs include statistical evidence showing the alleged outcome disparity between groups. In this case, the statistical data relied on by plaintiffs-appellants compared (1) the percentage rate at which high school students classified as having a disability under the IDEA received AIS courses with (2) the percentage rate at which high schools students not classified as having a disability received AIS instruction. The data showed that, in the Mount Vernon City School District, the ratio between the two groups was 3:1 (23.02% vs. 8.62%) during the 2008-2009 school year; and 1.5:1 (20.37% vs. 12.56%) during the 2009-2010 school year.

Notwithstanding the foregoing, the Court found that plaintiffs-appellants had failed to provide any evidence that the group of students included in their data classified as having a disability under the IDEA, also satisfied the ADA and Section 504 definitions of "disability." In this regard, the Court explained that although these statutes all provide relief for persons with disabilities, they define disability differently. Under the ADA, a "disability" constitutes a "physical or mental impairment that substantially limits one or more major life activities," whereas under the IDEA, a "child with a disability" has one or more of an enumerated list of impairments requiring "special education or related services." The Court further explained that only if, as a matter of law, a child with a disability under the IDEA necessarily qualifies as an individual with a disability under the ADA and Section 504, plaintiffs-appellants' statistical evidence would suffice to show the disparate impact under the alleged ADA and Section 504. However, based on the distinct legal standards set forth by these statutes, the Court concluded that an individual may qualify as disabled under the IDEA without demonstrating the "substantially limiting impairment" required to qualify as such under the ADA.

This mandatory showing of a substantially limiting impairment to seek redress under the ADA, the Court concluded, had not been made by the plaintiffs-appellants, because the statistical data relied on in this case at most showed that the District's AIS policy affected children with a disability under the IDEA at a higher percentage than it affected children without such disability, but fell short of satisfying the statutory standards of the ADA and Section 504. Therefore, since an IDEA disability is not equivalent as a matter of law to a disability cognizable under the ADA and Section 504, the district court's grant of summary judgment in favor of defendants was proper.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...7bca30a4136/1/hilite/

Panel: Circuit Judges Walker, Jacobs, and Livingston

Argument Date: 08/26/2015

Date of Issued Opinion: 09/16/2016

Docket Number: 14-3603-cv

Decided: Affirmed

Case Alert Author: Gloria Mejia-Repp

Counsel: Michael H. Sussman, Sussman & Watkins, Goshen, N.Y., for Plaintiffs-Appellants; Lewis R. Silverman, Rutherford & Christie, LLP, N.Y., for Defendants-Appellees Mount Vernon City School District, Mount Vernon City School District Board of Trustees, Dr. Welton Sawyer, and Shelly Jallow; Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Philip V. Tisne, Assistant Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Defendants-Appellees New York State Education Department and Roberto Reyes.

Author of Opinion: Judge Debra Ann Livingston

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 09/20/2016 10:16 AM     2nd Circuit     Comments (0)  

September 18, 2016
  Paul Betances, et al. v. Brian Fischer, et al. - Second Circuit
Headline: Second Circuit Holds NYS Correctional and Parole Officials' Delay in Implementing Earlier Ruling that Held Administratively Imposed Post-Release Supervision Terms to Criminal Sentences Are Unconstitutional, Was Not Objectively Reasonable

Area of Law: Criminal Law

Issue(s) Presented: Whether defendant NYS Correctional Service and Parole Division officials may be liable for failing to comply with the Court's holding in Early I that their offices' administratively imposed post-release supervision terms to criminal sentences were unconstitutional.

Brief Summary: This case concerns plaintiffs who were convicted of violent felonies and had administratively imposed post-release supervision ("PRS") terms administratively added to their sentences when the sentencing judges had failed to impose them. In 2006, in a case known as Early I, the Second Circuit held that, despite a New York statute requiring that PRS terms were required to be imposed in certain cases, only the judge could impose PRS terms, and PRS terms imposed and enforced administratively by New York State Department Of Correctional Services (DOC) and the Division of Parole (DOP) when the sentencing judge failed to do so were unconstitutional. Although defendants acknowledged that they fully understood the requirements of Early I, they refused to enforce it or take action until the New York Court of Appeals subsequently issued a decision in 2008 that state law did not permit an administratively imposed post-release supervision term. In the current suit, plaintiffs sued individually DOC and DOP officials responsible for implementing Early I for failing to do so until the later 2008 decision. The Second Circuit held that defendants' delay was not objectively reasonable and thus they were not protected by qualified immunity and affirmed the district court's decision to grant plaintiffs' motion for summary judgment seeking to hold the officials personally liable.

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...ba3d9/2/hilite/


Extended Summary: Under New York law, an individual convicted of a violent felony must serve a mandatory post-release supervision ("PRS") term in addition to their imprisonment. N.Y. Penal Law § 70.45(1). Here, the Second Circuit revisits the issue of PRS terms administratively imposed and enforced by New York State Department of Correctional Services (DOS) and the Division of Parole (DOP) in cases when the sentencing judge failed to impose this statutory requirement. On June 9, 2006, the Second Circuit first addressed the constitutionality of administratively adding a term of post-release supervision when it decided Early v. Murray, ("Early I"), reh'g denied, ("Early II"). In Early I, the Court held that only the sentencing court may impose a PRS, and that administratively imposed PRS terms were unconstitutional. Defendants, individual DOS and DOP officials, however, refused to implement this decision, claiming it violated New York State law. On April 29, 2008, the New York Court of Appeals followed suit with the Second Circuit, holding that state law allowed only the sentencing judge to impose the terms of PRS. After these decisions, the defendants finally took steps to address obtain resentencing for individuals subject to administratively imposed PRS terms.

The plaintiffs in this case are offenders subjected to continued or newly imposed PRS terms, set forth by DOCS, from the date that Early I was decided. Previously, the Second Circuit affirmed the district court's decision to deny defendants' motion to dismiss. The Court's remand instructed the district court to develop a record as to the objective reasonableness of the time it took defendants to implement Early I. Defendants now appeal the district court's decision to grant plaintiffs' motion for summary judgment on holding the defendants personal liable and to deny defendants' motion for summary judgment on the basis of qualified immunity.

Defendants, Anthony J. Annucci and Brian Fisher, DOCS officials, and Terence Tracy, a DOP official, who were responsible with implementation of Early I, argued that they believed that their only responsibility was to prepare individual resentencing. The Second Circuit found this argument unpersuasive. For prospective PRS terms, the court found defendants' duty was not to impose a PRS term, and then prepare a resentencing if and when requested. For retrospective PRS terms, the court found that the fact that they took action after the 2008 Court of Appeals decision demonstrated that their responsibility was not to passively wait for individuals to file suits.

Although the Second Circuit accepted the difficulties with resentencing all of the violent felons with unpronounced PRS terms, the Court found this argument unpersuasive because Early I did not impose this requirement, and that these difficulties did not cause the delay of 14-19 months. Finally, while the Second Circuit accepted the argument that other state actors were resistant to Early I, the failure of those parties to act did not, the court said, impact defendants' ability to act and defendants had no reason to wait until after the Court of Appeals weighed in. For these reason, the Second Circuit affirmed the district court's decision.

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...ba3d9/2/hilite/

Panel: Circuit Judges John M. Walker, Jr., Reena Raggi, and Christopher F. Droney.

Argument Date: 3/28/2016

Date of Issued Opinion: 9/16/2016

Docket Number:
No. 15-2836-cv

Decided: Affirmed

Case Alert Author: Vito J. Marzano

Counsel: Hayley Horowitz, Emery Celli, Brinckerhoff & Abady LLP for Plaintiffs-Appellees; Steven C. Wu, Deputy Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, for Defendants-Appellants.
Author of Opinion: Judge Walker

Circuit: Second Circuit

Case Alert Circuit Supervisor:
Professor Elyse Diamond

    Posted By: Elyse Moskowitz @ 09/18/2016 11:21 AM     2nd Circuit     Comments (0)  

September 16, 2016
  Church & Dwight Co., Inc., v. SPD Swiss Precision Diagnostics, GmbH - Second Circuit
Headline: Second Circuit Affirms False Advertising Ruling Against Maker of Clearblue "Weeks Estimator" Pregnancy Test

Area of Law: Advertising Law

Issue(s) Presented: Whether, given that the Clearblue "Weeks Estimator" pregnancy test used a different measurement metric than the metric used by doctors, its packaging and advertising were implicitly false.

Brief Summary: In 2013, the manufacturer of the Clearblue pregnancy tests launched a new product: the Clearblue Pregnancy Test with Weeks Estimator. This was the first pregnancy test that not only measured whether or not a woman was pregnant (based on the presence of a hormone in her urine), but also indicated how many weeks she had been pregnant (based on the amount of that hormone). However, the way in which the test dated the pregnancy differed from the commonly-used metric used by doctors. The medical profession dates a pregnancy based on the number of weeks since a woman's last menstrual period. The Clearblue Weeks Estimator test, by contrast, dates it based on weeks since ovulation. Accordingly, the Clearblue Weeks Estimator test generally produces a "weeks pregnant" number that is approximately two weeks less than the number a doctor would provide (since ovulation, on average, occurs two weeks after the start of a menstrual period).

The makers of First Response pregnancy tests (Clearblue's main competitor) brought suit in the United States District Court for the Southern District of New York, alleging that the manufacturer of the Clearblue "Weeks Estimator" test had engaged in false advertising because its materials implied that Clearblue was using the same metric as that used by doctors, boosting its sales. The district court found the defendant liable for false advertising, enjoined defendant from distributing the misleading materials and from using specified phrases, and ordered it to take corrective measures. The Second Circuit affirmed, explaining that the product's "Launch Package, TV Commercial, and other advertising all unambiguously implied the false message that the Product provides a measurement of weeks-pregnant that is consistent with the measurement a doctor would provide."

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...0b7c5cd707e/5/hilite/
[
B]Extended Summary: The Second Circuit affirmed a decision of the United States District Court for the Southern District of New York which found Defendant-Appellant liable for false advertising and issued a permanent injunction regarding its advertising and packaging of one of their pregnancy tests.

For historical and practical reasons, doctors have always dated a woman's pregnancy from her last menstrual period. This method - despite the fact that a woman's egg is not actually fertilized until she ovulates approximately two weeks later - is widely used and remains the standard convention for expressing pregnancy duration. In 2013, the manufacturer of Clearblue pregnancy tests launched a product using an alternate pregnancy-dating method. This product, named the "Clearblue Pregnancy Test with Weeks Estimator," measures how many weeks a woman has been pregnant since ovulation. The test calculates this by measuring the amount of hCG (the hormone human chorionic gonadotropin) in a woman's urine; this hormone is released once the fertilized egg implants in the uterine lining.

Plaintiff-Appellee, Church & Dwight Co., Inc., is the manufacturer of a different test, the "First Response Pregnancy Test," which is Clearblue's direct competitor in the home-pregnancy test market. Plaintiff brought a false advertising suit against the defendant, alleging that defendant's product "communicated the false impression that it uses the same metric and gives the same number of weeks of pregnancy as a medical professional would do," and that this false impression boosted the product's sales, at the expense of plaintiff's competing product.

The defendant lost in the district court, and appealed. First, defendant raised the argument that since it had obtained FDA approval on their packaging and satisfied the requirements of the Federal Food, Drug and Cosmetic Act, it should be protected from liability under a false advertising claim based on the Lanham Act.. The Second Circuit, however, explained that the Lanham Act and the FDCA actually complement each other because the Lanham Act's mission is to protect the concerns of a competitor harmed by false advertising while the FDCA protects public health and safety.

On the substance of the false advertising claim, the Second Circuit affirmed the ruling that the advertising and packaging for the "Weeks Estimator" product was impliedly false. The court held that "if an advertising message means something different from what reasonable consumers would understand it to mean, that message can be considered false." Here, the court concluded that reasonable consumers would have assumed from the various advertising materials that the product was not giving a different number than a medical professional would give - when, in fact, it was. The initial launch package "did not indicate in any visible or clear way that the Product provides a different measurement from a doctor's." Even after the defendant revised its original packaging and advertising because the FDA had expressed concerns over the use of "weeks" language, confusion to a reasonable consumer still existed. The revised version of the "Weeks Estimator" test specifically included the language "Weeks Since Ovulation," but that did not resolve confusion, because "many women are not aware that the medical profession measures pregnancy as starting approximately two weeks prior to ovulation and fertilization." The court stated that even if the confusion were attributable to widespread consumer ignorance on how a doctor measures pregnancy, the defendant still should have "adequately communicat[d] that its measurement was not consistent with the metric used by doctors."

Finally, because Defendant's product advertised such a unique characteristic, this misrepresentation influenced consumers' purchasing decisions. This false advertising was found to have a direct causal connection with Plaintiff's lost sales.
The broad injunction entered by the district court was also affirmed by the Second Circuit. The terms of the injunction, among other things, direct the Defendant to remove all current products from points of sale within forty-five days, deliver within seven days to all retailers and distributors a specified written notice with a copy of the injunction, set up and maintain for a year a page on its website with a message about the lawsuit, publish internet advertising prominently displaying its logo and stating that a federal court has determined they engaged in false advertising, among other severe punishments.

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...0b7c5cd707e/5/hilite/

Panel: Circuit Judges Leval and Wesley; District Judge Sannes, sitting by designation

Argument Date:
03/11/2016

Date of Issued Opinion: 09/09/2016

Docket Number: No. 15-2411

Decided: Affirmed

Case Alert Author: Eve I. Lincoln

Counsel: Paul D. Clement, Bancroft PLLC, for Plaintiff-Appellee and Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, for Defendant-Appellant

Author of Opinion: Judge Leval

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Elyse Moskowitz @ 09/16/2016 09:39 AM     2nd Circuit     Comments (0)  

September 13, 2016
  Montesa, et al. v. Schwartz, et al. - Second Circuit
Headline: Second Circuit Rejects Students' Claim Under the First Amendment's Establishment Clause Against East Ramapo School Board

Area of Law:
Constitutional Law, First Amendment, Establishment Clause

Issue(s) Presented: Whether East Ramapo public school students have standing to challenge the district's use of funds that benefit Hasidic children and institutions.

Brief Summary: Current students in Rockland County's East Ramapo School District sued the school board and the board's lawyer under the Establishment Clause of the First Amendment for an alleged unconstitutional use of public district funds to benefit Hasidic students and institutions. Plaintiff-appellees claim that the re-apportioning of funds from the public school to benefit private religious schools and students deprived them of educational opportunities causing them direct damage. They sought an injunction, monetary damages, and attorneys' fees. The Second Circuit held that plaintiff-appellees lacked standing in the case because they did not demonstrate a concrete, specific injury.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...ede8fa0c01/1/hilite/

Extended Summary:
Students in the East Ramapo School District, both current and former, along with district taxpayers, brought the current action in the United States District Court for the Southern District of New York against East Ramapo school board members and board lawyer, Albert D'Agostino. Plaintiffs-appellees alleged violations of state and federal law, as well as the United States Constitution, stemming from defendants-appellants' alleged unconstitutional use of funds that supported Hasidic children and institutions in the school district. Plaintiff-appellees specifically alleged that defendant-appellants manipulated the Individuals with Disabilities Act (IDEA) settlement process to take children who were eligible for IEPs out of the public school and paid for their placement in private Hasidic schools, despite the public school's ability to accommodate the children's needs. Plaintiff-appellees also described other instances where defendant-appellants allegedly gave preferential treatment to the Hasidic community when they attempted to sell district property and purchased religious books for use by Hasidic children in the district with public money. Plaintiff-appellees claimed a causal link between the defendant-appellants' acts and a loss of educational services at the public school and asserted they were directly affected by these actions and that public students' test scores decreased.

At the outset, the district court dismissed all claims except the claim brought under the Establishment Clause of the First Amendment. The lower court also dismissed the former students for lack of standing and found the taxpayers could not seek damages (that appeal is now pending separately in district court), leaving current students as the only remaining plaintiffs in this case. The district court then held that the current students had standing to proceed with their claim under 42 U.S.C. § 1983 and found defendant-appellants were not protected by qualified immunity. Defendant-appellants then petitioned for an interlocutory appeal to address whether the current students had standing in the case and whether they were entitled to immunity. The Second Circuit reversed the district court, holding the current students lacked standing to proceed on their claim and, accordingly did not need to reach the issue of immunity.

The Second Circuit began its de novo review by outlining the requirements for standing as a concrete and actual injury, causation, and a likelihood of redress. The Court then narrowed its scope, outlining that standing for purposes of an Establishment Clause claim may exist only for: (a) taxpayers; (b) a direct harm; or (c) a denial of benefits. Finding that the plaintiff-appellees proceeded under a theory of direct hard, a "novel theory of liability," given the facts in this case, the court held that plaintiffs-appellees needed to demonstrate a concrete injury stemming from a religious message or a causal link between the alleged IDEA scheme and their injuries. The Court reasoned that the allegations that defendant-appellants' shifted funds from the public school to Hasidic children and institutions caused only indirect, incidental effects on the plaintiff-appellees' education. According to the Second Circuit majority, such allegations of academic harm resulting from funneling public funds to religious children and institutions in this way, without more, did not demonstrate a direct injury by religious expression. Thus, the Second Circuit reversed and remanded the lower court's decision, holding that plaintiff-appellees lacked standing to bring this Establishment Clause First Amendment claim against defendant-appellants.

In the dissent, Judge Reiss argued that the majority viewed the plaintiff-appellees' claim through too narrow a lens, and that an Establishment Clause claim is broader than the direct exposure theory asserted by the court. Judge Reiss contended that plaintiff-appellees' allegations should be held to withstand the pleading requirement because plaintiff-appellees alleged a causal link between the lack of funding to their school and their decreased test scores, which Judge Reiss viewed as a specific injury.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...ede8fa0c01/1/hilite/

Panel: Circuit Judges Hall and Lohier; District Judge Reiss

Argument Date:
11/02/2015

Date of Issued Opinion:
09/12/2016

Docket Number:
14-3721-cv(L)

Decided:
Reversed and Remanded

Case Alert Author: Samantha Hazen

Counsel:
Laura D. Barbieri, Arthur Zachary Schwartz, Advocates for Justice Legal Foundation, New York, NY for Plaintiffs-Appellees; David J. Butler, Bryan M. Killian, Randall M. Levine, David B. Salmons, Stephanie Schuster, Morgan, Lewis & Bockius, LLP, Washington, DC for Defendants-Appellants Daniel Schwartz, Yehuda Weissmandl, Moses Friedman, Moshe Hopstein, Eliyahu Solomon, Aron Wieder, Morris Kohn, Richard Stone, Joel Klein, and Eliezer Wizman; Mark D. Harris, Adam W. Deitch, Jessica Zietz, Proskauer Rose LLP, New York, NY for Defendant-Appellant Nathan Rothschild; Meredith D. Belkin, Marian C. Rice, L'Abbate, Balk, Colavita & Contini, LLP, Garden City, NY for Defendant-Appellant Albert D'Agostino

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

Case Alert Circuit Supervisor:
Professor Elyse Diamond

    Posted By: Elyse Moskowitz @ 09/13/2016 08:34 AM     2nd Circuit     Comments (0)  

September 12, 2016
  Leonard v. Stemtech International Inc. - Third Circuit
Headline: District court did not abuse its discretion allowing a $1.6 million jury award for the infringed use of copyrighted stem cell photographs

Area of Law: Copyright Infringement

Issue(s) Presented: Did the district court abuse its discretion in concluding the jury's findings as to vicarious and contributory infringement were supported by substantial evidence and awarding a $1.6 million award for copyright infringement?

Brief Summary: Andrew Leonard, a stem cell photographer, licensed one of his photographs to Stemtech International Inc., a nutritional supplement provider, to be used in one of Stemtech's publications. Stemtech then used Leonard's images without a license in other materials, including its distributors' websites, marketing materials, and informational PDFs. Leonard sought damages for direct, vicarious, and contributory infringement and was awarded a $1.6 million jury award on these counts.
The Third Circuit held that the district court did not abuse its discretion in finding the jury's verdict on direct, vicarious, and contributory infringement was supported by substantial evidence. Leonard first established direct infringement, which is required to prove contributory and vicarious infringement, by showing the use of his copyrighted images in Stemtech's distributors' materials. He also demonstrated that Stemtech required its distributors to use the copyrighted images in order to add legitimacy to its products and attract customers. This evidence was sufficient to prove vicarious and contributory liability.
Due to expert testimony supporting the rarity of stem cell photographs and using the Copyright Act's fair market value approach for calculating actual damages, the Third Circuit did not find the jury's $1.6 million award to be excessive or the district court to have abused its discretion in upholding the verdict. The Third Circuit vacated the district court's denial of prejudgment interest, as the district court erroneously refused to grant it to Leonard because it believed the jury award to be sufficient compensation for the use of the infringed photographs.

Extended Summary: Leonard, a stem cell photographer, licensed one of his photographs to Stemtech International Inc., a nutritional supplement provider, to be used in two places in Stemtech's Healthspan magazine. Stemtech then used Leonard's images without a license ninety-two additional times in other materials, including its distributors' websites, marketing materials, and informational PDFs. Stemtech creates and requires its distributors to use certain marketing and advertising materials, only allows the use of self-replicated websites, and owns the domains to some of its distributor's websites. Leonard discovered the unauthorized use of his copyrighted images by conducting an internet search for his photographs. After a fruitless effort to contact Stemtech and receive compensation for the use of his photographs, Leonard sought damages for direct, vicarious, and contributory infringement. He was awarded a $1.6 million jury verdict.

The Third Circuit held that the district court did not abuse its discretion in finding the jury's verdict on vicarious and contributory infringement conclusions were supported by substantial evidence. Leonard established direct infringement on behalf of Stemtech's distributors, which is required to prove vicarious and contributory infringement, by showing he owned the copyright to the photographs and did not authorize the use of his images in those materials by Stemtech or Stemtech's distributors.

Leonard then established contributory infringement, which requires a plaintiff to prove that a third party directly infringed on the copyright, that the defendant knew the third party was directly infringing, and that the defendant contributed to the infringement. The Third Circuit reasoned that Stemtech created the materials containing the copyrighted images and required its distributors to use them, proving that it knew of the third party's infringed use. Also, Stemtech knew the images were copyrighted, as it had previously licensed one image from Leonard. Therefore, sufficient evidence to prove contributory infringement was established.

Sufficient evidence to prove vicarious infringement was also established by Leonard. Vicarious infringement requires that the infringer had the right and ability to supervise or control infringing activity and had a direct financial interest in the activity. The Third Circuit looked to other case law to analogize Stemtech's control over its distributors, comparing Stemtech's required use of its created materials by its distributors to that of the products a chain store is required to sell by its controlling corporation. Since Stemtech had contracts with its distributors and required them to use certain advertising materials, it had control over their infringing activities. The Third Circuit found Stemtech officials' testimony that the use of the photographs in their materials added legitimacy to their products and attracted customers constituted a direct financial interest in the infringed use of the photographs. Therefore, vicarious infringement was established.

Second, the Third Circuit did not find the jury's $1.6 million award excessive. The award was calculated using the fair market value approach for actual damages that is authorized by the Copyright Act. Leonard presented an expert to testify to the fair market value of his images, who then multiplied that amount due to the "scarcity and rarity" of stem cell photographs. In applying this approach for the use of 92 images, the Third Circuit did not find the award excessive. The Third Circuit also noted that the expert produced an estimate of the fair market value for the use of the images to be between $1.4 and $3 million. The jury awarded an amount at the lower end of this proposed spectrum. Therefore, the Third Circuit concluded that the award did not shock the judicial conscience.

The Third Circuit vacated the district court's finding that Leonard was not entitled to prejudgment interest since he was justly compensated by the damages he received on his infringement claims. Prejudgment interest in copyright cases is awarded to prevent unjust enrichment and compensate for the time and value of income that is lost by the use of the images.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153198p.pdf

Panel: Fuentes, Shwartz, and Restrepo, Circuit Judges

Argument Date: July 12, 2016

Date of Issued Opinion: August 24, 2016

Docket Number: No. 15-3198

Decided: Affirmed in part, vacated in part

Case Alert Author: Katherine A. Osevala

Counsel: Kathleen M. Kushi Carter, Christine R. Arnold, and Thomas P. Leff, Counsel for Appellants; Jan I. Berlage, James S. Green, Sr., and Jared Green, Counsel for Appellee.

Author of Opinion: Circuit Judge Shwartz

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/12/2016 09:30 AM     3rd Circuit     Comments (0)  

  John Harnish v. Widener University School of Law - Third Circuit
Headline: Third Circuit finds law students did not sufficiently comprise a class in misrepresentation suit against their law school.

Area of Law: Consumer Fraud

Issue(s) Presented: Did the district court err in denying class certification to the plaintiff law students?

Brief Summary: Plaintiff law students sued Widener University School of Law for alleged misrepresentation of employment statistics for recent graduates. The students alleged that this misrepresentation caused a price inflation in tuition, resulting in the students paying more in tuition than the degree was actually worth at the time. Students sought certification as a class, including all Widener University School of Law students from 2005-2011, alleging that all these students were victims of the inflated tuition.

The district court denied certification to the class, finding that the evidence did not support predominately class-wide questions but rather called for individual analysis. Students appealed this decision, arguing that the district court: (1) improperly viewed the limited evidence against a burdensome standard; (2) improperly considered the different employment outcomes of the students, ignoring the theory that the damages were unrelated to actual outcomes; and (3) improperly found that the evidence did not support a class-wide theory for relief. The Third Circuit affirmed the decision of the district court, finding that the court properly viewed the evidence against the required standard and that the students failed to present evidence to support a cognizable theory that would show that the students suffered the same injury similarly as a whole.

Extended Summary:[/B Plaintiff law students brought suit against Widener University School of Law, alleging fraud and misrepresentation. The students alleged that between 2005 and 2011, Widener misrepresented their graduate employment statistics in print, online publications, and oral presentations targeting potential students. The students alleged that Widener published statistics depicting graduate employment rates of 90-97%, when in reality only 50-70% of graduates held full-time legal positions. The students argued that Widener improperly reflected part-time and non-legal employment in their published statistics and credited unreliable student employment reports, while ignoring reports of unemployment. The students alleged that this misrepresentation allowed the school to charge higher tuition than it would have received if it had published the correct information. The students argued that this tuition price inflation violated the New Jersey Consumer Fraud Act (NJCFA) and the Delaware Consumer Fraud Act (DCFA). The students sought to sue the school as class, including all students who attended Widener during the 2005-2011 period and were subjected to the higher tuition rates.

The district court denied certification, finding that the evidence did not support the students' suit against Widener because they could not show that they were all similarly affected by the inaccurate information, citing to the different employment outcomes and the students enrolling at different times. The students filed an appeal, alleging that the district court (1) improperly viewed the limited evidence against a burdensome standard; (2) improperly considered the different employment outcomes of the students, ignoring the theory that the damages were unrelated to actual outcomes; and (3) improperly found that the evidence did not support a class-wide theory for relief.

The Third Circuit affirmed the decision of the district court, finding that based on the evidence presented, the common questions in this case were not predominate over the individual questions. On the students' first claim, the Court found that the district court properly reviewed the evidence in this case under a rigorous standard. In determining whether the students were similarly impacted by this inaccurate information, the court must examine the evidence to evaluate whether the group can present the same evidence or whether each student would have to present his or her own evidence on an individual basis in order to prove each issue. Under the NJCFA and DCFA, the issues the students would have to prove included an unlawful practice resulting in an ascertainable loss and a causal relationship between the two. The Court noted that the district court had to carefully consider how each issue would be presented and was required to take more than a threshold look on a plausible theory. The Court found that this inquiry may overlap with the merits of the case, and ultimately agreed with the district court's finding that the students would not be able to show ascertainable loss or causation class-wide because of the differences in experiences of all the students over the six-year period. For example, some of the students were enrolled after Widener made changes to their reporting practices and others had varying tuition obligations.

The Third Circuit also rejected the argument that the district court improperly considered the different employment outcomes of the students in accessing the theory for damages. The students argued that the different employment outcomes were irrelevant under their theory of damages, which focused solely on the difference between what they paid in tuition and what the education was actually worth. The Third Circuit agreed with the students, finding that the actual value of the education was based on the probability of full-time employment rather than the actual outcome. The Court noted, however, that this mischaracterization of the damages theory was harmless as the evidence still did not support a class-wide theory for relief.

On the final claim, the Third Circuit found that students failed to raise a cognizable theory of relief. The students argued that Widener charged more for tuition than the accurate information would have allowed (price inflation), therefore empowering Widener to charge more across the whole market regardless of the students' actual reliance on the inaccurate information. The Third Circuit rejected this as both New Jersey and Delaware have stated that the ascertainable loss and causation elements are not met by the price inflation theory outside of a federal securities fraud context. Therefore, state law removes the theory as a common question entirely and leaves only individual questions in how diverse members of the class reacted to the alleged fraud.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151692p.pdf

Panel: Chagares, Krause, and Barry, Circuit Judges 

Argument Date: June 6, 2016

Date of Issued Opinion: August 16, 2016

Docket Number: No. 15-3888

Decided: Affirmed

Case Alert Author: James Shygelski

Counsel: Danielle F. Moriber, Esq., Rachel E. Simon, Esq., David S. Stone, Esq., (Argued), Counsel for Appellants; Suna Lee, I, Esq., Thomas F. Quinn, Esq., (Argued), Dennis J. Drasco, Esq., Counsel for Appellees

Author of Opinion: Circuit Judge Chagares

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/12/2016 09:27 AM     3rd Circuit     Comments (0)  

  Michele Black v. Montgomery County - Third Circuit
Headline: Third Circuit Holds Pre-trial Restrictions Constitute a "Seizure" for Fourth Amendment Purposes, and a Stand-Alone Fabrication of Evidence Claim Under the Due Process Clause of the Fourteenth Amendment Can Proceed Even if There Is No Conviction

Area of Law: Civil Rights

Issues Presented: Whether a person released pre-trial, but ordered to appear in court at the state's command, is "seized," as is required for a Fourth Amendment malicious prosecution claim? Whether a conviction is a prerequisite to a stand-alone due process claim under the Fourteenth Amendment against a state actor for fabrication of evidence?

Brief Summary: Michele Black was interrogated and accused by police of committing arson, despite a Fire Chief's report that the fire was electrical and the fact that electricians were at the scene repairing wiring at the time the fire started. Shortly thereafter, Black flew from her home in California to Pennsylvania for her arraignment because Pennsylvania authorities issued an arrest warrant and directed her return. Black was required to post unsecured bail of $50,000. She was told the bond would be forfeited if she did not attend all court proceedings, compelling her to travel across the United States to attend a dozen pre-trial hearings in a year. At trial, Black was found not guilty after a jury deliberated for less than forty minutes.

Black filed a lawsuit under 42 U.S.C. § 1983 and state law, alleging that various law enforcement officers and fire department officials violated her constitutional rights in connection with criminal proceedings that ended in her acquittal. The district court dismissed the case, finding that Black was not "seized" as required for a Fourth Amendment malicious prosecution claim, and that a Fourteenth Amendment due process claim for fabricated evidence required that Black be convicted at trial. On appeal, the Third Circuit first held that Black was seized for purposes of her Fourth Amendment malicious prosecution claim even though she was never incarcerated. Second, that a conviction is not a prerequisite to a stand-alone fabricated evidence claim against state actors under the Fourteenth Amendment. Thus, the Third Circuit reversed the district court's judgment and remanded the matter for further proceedings consistent with the opinion.

Extended Summary: On November 21, 2012, a fire started at Michele Black's childhood home in Lower Merion Township while electricians were upgrading the home's wiring. The electricians extinguished the fire before they called the fire department. After arriving at the home, the Fire Chief reported the fire was electrical. However, despite the Fire Chief's report and fire damage on the electrical outlet where the fire began, a Deputy Fire Marshal concluded the fire was started intentionally. Subsequently, Black was interrogated and accused by police of committing arson. Less than one month later, Black flew from her home in California to Pennsylvania for her arraignment because an arrest warrant had been issued and she had been directed to return. Black was required to post unsecured bail of $50,000. A condition of her bail was that Black was required to appear at all court proceedings otherwise a bench warrant would be issued for her arrest. This compelled Black to travel across the United States to attend twelve pre-trial hearings in just a year. On April 23, 2014, Black's trial began. On April 24, 2014, Black was found not guilty after a jury deliberated for less than forty minutes.

Black filed a lawsuit under 42 U.S.C. § 1983, alleging, inter alia, malicious prosecution in violation of the Fourth Amendment and violation of her Fourteenth Amendment due process rights due to the alleged fabrication, suppression and destruction of evidence by various law enforcement officers and fire department officials. The district court dismissed the case, finding that Black was not "seized" as required for a Fourth Amendment malicious prosecution claim, and that a Fourteenth Amendment due process claim for fabricated evidence required that Black be convicted at trial. On appeal, the Third Circuit reversed the district court's judgment and remanded the matter for further proceedings consistent with the opinion.

First, the Third Circuit held that Black was "seized," thus supporting her Fourth Amendment malicious prosecution claim, even though she was never incarcerated. The Court adopted the Supreme Court's concept of "continuing seizure" discussed in a concurrence, and after citing relevant case law, concluded that an individual under pretrial restrictions and ordered to appear in court is "seized" for Fourth Amendment purposes. The Court, thus, found that Black's circumstances demonstrated she experienced "constitutionally significant restrictions on [her] freedom of movement by the defendants for the purpose of obtaining h[er] presence at a judicial proceeding" and she was "seized within the meaning of the Fourth Amendment." Accordingly, the Court vacated and remanded the district court's dismissal of Black's malicious prosecution claim.

Second, the Third Circuit held that a conviction is not a prerequisite to a stand-alone fabricated evidence claim against state actors under the due process clause of the Fourteenth Amendment. The Court explained that such a claim only requires a reasonable likelihood that, absent fabricated evidence, the plaintiff would not have been criminally charged. The Court explained "reasonable likelihood" requires that a plaintiff draw a "meaningful connection" between her particular due process injury and the use of fabricated evidence against her. The Court reasoned that a plaintiff must demonstrate the fabricated evidence "was so significant that it could have affected the outcome of the criminal case." Finally, there must be "persuasive evidence supporting a conclusion that the proponents of the evidence" are aware that the evidence is incorrect or that is being offered in bad faith. Under this framework, the Court found that Black's "acquittal does not preclude her claim that the defendants intentionally fabricated evidence in violation of the due process clause of the Fourteenth Amendment." Accordingly, the Court vacated and remanded the district court's dismissal of the fabrication of evidence claim.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153399p.pdf

Panel: Chagares, Krause, and Scirica, Circuit Judges

Argument Date: June 8, 2016

Date of Issued Opinion: August 30, 2016

Docket Number: No. 15-3399

Decided: Vacated and remanded

Case Alert Author: Brooke A. Hutchins

Counsel: Michael C. Schwartz, Counsel for Appellant; Carol A. Vanderwoude, Counsel for Appellees Township of Lower Merion, Detective Gregory Henry, Bryan A. Garner, Chief Fire Off. Charles McGarvey and Deputy Fire Marshal Frank Hand; Philip W. Newcomer, Counsel for Appellees Montgomery County and Detective John T. Fallon; and Claudia M. Tesoro, Counsel for Appellee State Trooper Robert Pomponio

Author of Opinion: Circuit Judge Chagares

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/12/2016 09:24 AM     3rd Circuit     Comments (0)  

  Terry Brown a/k/a Antonio Lambert v. Superintendent Greene SCI - Third Circuit
Headline: Third Circuit Holds Defendant's Sixth Amendment Rights Violated When Co-Defendant Declined to Testify During Trial and Prosecutor Revealed Redacted Identity of Defendant in Co-Defendant's Incriminating Confession.

Area of Law: Civil Rights

Issue(s) Presented: Was a defendant's Sixth Amendment rights violated when the confession of a co-defendant, who had asserted his Fifth Amendment rights and declined to testify, was redacted to protect the identity of the defendant, and the prosecutor subsequently revealed the defendant's identity during his closing argument?

Brief Summary: Defendant Lambert and his co-defendant, Garcia, were tried jointly in Pennsylvania state court for the murder of Mary Edmond. In his confession, Garcia stated that Lambert was involved in the shooting and he was just a bystander who remained in the car during the robbery and shooting. Lambert was charged with, and convicted of, first-degree murder among other charges. During trial, Garcia asserted his Fifth Amendment right against self-incrimination and declined to testify. Lambert argued that the combination of Garcia's confession implicating Lambert and Garcia's refusal to testify violated his Sixth Amendment Confrontation Clause right. The trial court agreed and ordered the statement to be redacted of any mention of Lambert's name and replaced with phrases like "the other guy." The jury was instructed that it may only use the confession against Garcia, not Lambert. During closing arguments, however, the prosecutor revealed that "the other guy" who accompanied Garcia to his house after the shooting was Lambert, implicating Lambert as the shooter in Garcia's confession. Lambert objected and moved for a mistrial, but his request was denied and he was convicted on all counts. Lambert's appeal was unsuccessful, as was his habeas petition to the district court. The Third Circuit Court of Appeals granted a certificate of appealability. The Third Circuit found that the prosecutor's reveal of Lambert's identity violated the Supreme Court standard that reading a confession to a jury, and instructing them to use the confession against one defendant but not another, violated the Confrontation Clause and that limiting instructions could not cure that violation. The Court further held that because of the significance of Garcia's confession, and the absence of any other evidence identifying Lambert as the shooter, the error had a "substantial and injurious effect" on the outcome of the case and relief was warranted. The Third Circuit Court of Appeals remanded the case to the district court, with instructions to either release or retry Defendant.

Extended Summary:

Defendant Lambert and his co-defendant, Garcia, were tried jointly in Pennsylvania state court for the murder of Mary Edmond. On February 23, 2001, Lambert, Garcia and their friend, Cheatham, were driving around North Philadelphia, smoking marijuana and obtaining Xanax pills, when the trio pulled over at a gas station and robbed, shot, and killed Mary Edmond. In his confession, Garcia claimed that Cheatham and Lambert were involved in the shooting and he was just a bystander who remained in the car.

During the criminal trial, Lambert's motion to sever was denied and he and Garcia were tried jointly. The Commonwealth planned to use Garcia's confession during the trial. Garcia asserted his Fifth Amendment rights against self-incrimination and declined to testify at trial. Lambert argued that the combination of the confession implicating Lambert, and Garcia's refusal to testify, violated his Sixth Amendment Confrontation Clause rights. The trial court agreed, and ordered the statement to be redacted of any mention of Lambert or Cheatham's names, replacing them with phrases like "the other guy," "one of the guys," and "the guy with the gun." The jury was told at the time the confession was introduced, and again before deliberation, that it may only use the confession against Garcia and not against Lambert. During the Commonwealth's closing arguments, the prosecutor revealed that "the other guy" who accompanied Garcia to his house after the shooting was Lambert, implicating Lambert as the shooter. Lambert objected, but the judge overruled the objection and allowed the prosecutor to proceed with closing arguments. Lambert then moved for a mistrial, but his request was denied and he was convicted on all counts. Lambert's direct appeals were unsuccessful. His habeas petition in the district court was then denied, but the Third Circuit Court of Appeals granted a certificate of appealability.

The Third Circuit reasoned that United States Supreme Court precedent holds that cognitive dissonance results from asking jurors to consider a confession only against one defendant and not another. In some of these cases, an extreme risk exists that a jury cannot follow these instructions, the consequences of which are vital to the defendant. In these cases, after the jury is exposed to an incriminating confession, no limiting instructions are sufficient to cure the harm that results to the defendant. Here, the Third Circuit found that the prosecutor's reveal of Lambert's identity violated Supreme Court standards that reading a confession to a jury, and instructing them to use the confession against one defendant but not another, violated the Confrontation Clause and limiting instructions could not cure the violation.

Following clearly established Supreme Court law, the Third Circuit held that the prosecutor's reveal of Lambert's identity violated his Sixth Amendment rights under the Confrontation Clause. Further, the Court concluded that this error was not harmless to Lambert, and that the Pennsylvania Supreme Court misapplied this clearly established precedent by not requiring a mistrial. The Third Circuit Court of Appeals remanded the case to the district court, with instructions to either release or retry the Defendant.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/142655p.pdf

Panel: Ambro, Krause, and Nygaard, Circuit Judges

Argument Date: June 16, 2016

Date of Issued Opinion: August 22, 2016

Docket Number: No. 14-2655

Decided: Remanded.

Case Alert Author: Rachel N. Costello

Counsel: Leigh M. Skipper, Esquire, Brett G. Sweitzer, Esquire, Arianna J. Freeman, Esquire, Counsel for Appellant; and Susan E. Affronti, Esquire, Ronald Eisenberg, Esquire, George D. Mosee, Jr., Esquire, R. Seth Williams, Esquire, Counsel for Appellees.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/12/2016 09:21 AM     3rd Circuit     Comments (0)  

  James A. Dennis v. Secretary, Pennsylvania Department of Corrections - Third Circuit En Banc
Headline: Third Circuit Affirms District Court's Grant of Habeas Corpus to James Dennis

Area of Law: Habeas Corpus

Issue(s) Presented: Did the prosecutor's failure to disclose evidence that corroborated the defendant's alibi and undercut the eyewitness identification deprive defendant of a fair trial?

Brief Summary:

James Dennis was convicted for the murder of Chedell Williams. He spent almost twenty-four years unsuccessfully challenging his conviction. The Pennsylvania Supreme Court repeatedly affirmed Dennis's first-degree murder conviction and sentence and denied his applications for post-conviction relief. Thereafter, the United States District Court for the Eastern District of Pennsylvania granted Dennis habeas corpus relief. The District Court concluded that the Pennsylvania Supreme Court had unreasonably applied Brady v. Maryland to three material pieces of evidence. The evidence suppressed by the Commonwealth included a receipt corroborating Dennis's alibi, an inconsistent statement by the Commonwealth's key eyewitness, and documents indicating that another individual committed the murder. The Third Circuit concluded that the withholding of this evidence denied Dennis a fair trial in state court and affirmed the District Court's grant of habeas relief.

Extended Summary:

On October 22, 1991, Chedell Williams and Zahra Howard were climbing the steps of the Fern Rock SEPTA Station in North Philadelphia. Two men approached the girls and demanded their earrings. The girls fled down the steps with Williams then running into an intersection. The men followed Williams; they tore her gold earrings from her earlobes and one then shot her in the neck. After shooting the victim, the men ran up the street to a waiting car and fled the scene. The investigation into Williams' murder focused on determining the identity of the shooter. The police pursued rumors that "Jimmy" Dennis had committed the crime, though they were unable to identify the source of the rumors. Resting on tips by Dennis' neighbors, the police proceeded with Dennis as the primary suspect.

Dennis was arrested on November 22, 1991. His signed statement indicated that he stayed at his father's house until about 1:30 p.m. on the day of the murder. His father then drove him to the bus stop and watched him get on the "K" bus toward Abbottsford Homes to attend singing practice that evening. Dennis rode the "K" bus for approximately thirty minutes and during the trip Dennis saw Latanya Cason, a woman he knew from Abbottsford Homes. Dennis asserted that when he and Cason disembarked the bus, he waved to her. After getting off the bus, Dennis walked to Abbotsford Homes, where he spent the rest of the day with his friends. Dennis' father, James Murray, corroborated Dennis's story. He stated that they spent the morning together, and that he drove Dennis to the bus stop shortly before 2:00 p.m. to catch the K bus to Abbottsford Homes. Murray testified that he knew for a fact that Dennis was on the K bus at the time of William's murder because he drove Dennis to the stop and watched from his car as Dennis boarded the bus.

The Commonwealth obtained eyewitness reports and identifications, few of which aligned with Dennis's appearance. The witnesses, including Howard, described the shooter at tall and stocky. Dennis, on the other hand, is 5'5" tall and weighed between 125 and 132 pounds at the time of trial. Before trial, three eyewitnesses identified Dennis in a photo array, at an in-person lineup, and at a preliminary hearing. However, during the pre-trial stage two of the witnesses were not absolutely sure that Dennis was the shooter. The Commonwealth's case rested primarily on the eyewitness testimony. It had no physical evidence, as the handgun and the earrings were never recovered. All three testified that the shooter was wearing red and black clothing.

Latanya Cason, testified she saw Dennis between 4:00 and 4:30 p.m. Her estimate that she saw him in that time period was strictly a guess, but there was no question that she saw him that day. Before seeing Dennis, Cason had picked up her public assistance check, signing a document to confirm pick up. She then filled her daughter's prescription, got some fish, and went home via the K bus. Nothing was introduced at trial to show the precise time of day she retrieved her check.

Three members of Dennis's singing group, who had known him for ten years or more, testified on Dennis's behalf about rehearsal on the day of the murder. Their testimony aligned with Dennis's account. One testified that Dennis was dressed in dark sweats and a dark hooded shirt at rehearsal that night - he was not wearing any red. Each testified that they had not seen a handgun in Dennis's possession. Dennis himself testified that when he left his father's house, he was wearing a dark blue jeans set; he changed into black sweats before rehearsal.

The prosecution failed to disclose to Dennis's counsel three pieces of exculpatory and impeachment evidence: (1) a receipt revealing the time that Cason had picked up her welfare benefits, several hours before the time she had testified to at trial, thus corroborating Dennis's alibi (the "Cason receipt"); (2) a police activity sheet memorializing that Howard had given a previous statement inconsistent with her testimony at trial, which provided both invaluable material to discredit the Commonwealth's key eyewitness and evidence that someone else committed the murder (the "Howard police activity sheet"); and (3) documents regarding a tip from an inmate detailing his conversation with a man other than Dennis who identified himself as the victim's killer (the "Frazier documents").

The jury found Dennis guilty of first-degree murder and sentenced him to death. In 1998, the Pennsylvania Supreme Court affirmed Dennis's conviction and death sentence on direct appeal by a vote of four to three. Dennis then filed a timely pro se petition pursuant to the PCRA. The Howard police activity sheet and the Frazier documents were disclosed during the PCRA discovery. The PCRA court denied Dennis's claims that the prosecution violated Brady by failing to disclose the Howard statement and the Frazier documents. The Pennsylvania Supreme Court agreed with the PCRA court, finding that the Commonwealth's failure to disclose the Frazier documents did not violate Brady because the prosecution was not required to disclose "every fruitless lead" and that "inadmissible evidence cannot be the basis for a Brady violation."

Dennis then filed a habeas corpus petition in the United States District Court for the Eastern District of Pennsylvania for review of his conviction and death sentence. The District Court granted Dennis habeas relief based on Dennis's Brady claims as to the Commonwealth's failure to disclose the Cason receipt, the Frazier documents, and the police activity sheet containing Howard's inconsistent statement. The Third Circuit concluded that the Pennsylvania Supreme Court's decisions regarding Dennis's Brady claims rested on unreasonable conclusions of fact and unreasonable applications of clearly established law, or were contrary to United States Supreme Court precedent. The Court affirmed the District Court and granted habeas relief on Dennis's Brady claims based on the Cason receipt, the Howard police activity sheet, the Frazier documents, and their cumulative prejudice.

The Court determined that the Pennsylvania Supreme Court erred by failing to recognize the impeachment value of the Cason receipt, which would have provided documentary evidence that Cason testified falsely at trial. The United States Supreme Court has made plain that impeachment evidence may be considered favorable under Brady even if the jury might not afford it significant weight. The Third Circuit also stated that the Pennsylvania Supreme Court erroneously concluded that the receipt was not exculpatory because it did not affect Dennis's alibi. The conclusion failed to recognize how Cason's corrected testimony corroborated testimony provided by Dennis and other witnesses, namely, his father.

Regarding the Howard Police Activity Sheet, the Court stated that the Pennsylvania Supreme Court denied Dennis's Brady claim regarding the Howard statement on materiality grounds. The Third Circuit concluded that although the court articulated the proper standard for materiality, whether a "reasonable probability" of a different outcome has been established, it applied it in a manner inconsistent with Supreme Court precedent. Defense counsel could have used Howard's inconsistent statement as an effective means of impeachment during trial. Impeachment evidence unquestionably falls under Brady's purview and cannot be suppressed by the prosecution. The Third Circuit rejected the Commonwealth's argument that evidence is not necessarily material under Brady simply because it may open up avenues for impeachment - the focus of the inquiry is on the "reasonable probability of a different result." Such a probability existed as the type of impeachment evidence provided by the activity sheet would have undercut the credibility of a key prosecution witness in a manner not duplicated by other challenges the defense was able to level at trial. Consequently, the impeachment material provided by the suppressed activity sheet is material under Brady, and it was unreasonable for the Pennsylvania Supreme Court to hold otherwise.

Finally, the Third Circuit held that the Pennsylvania Supreme Court's justification that the Frazier documents were a "fruitless lead" was unreasonable. There is no requirement that leads be fruitful to trigger disclosure under Brady, and it cannot be that if the Commonwealth fails to pursue a lead, or deems it fruitless, that it is absolved of its responsibility to turn over to defense counsel Brady material. The Third Circuit also held that the lead was not fruitless; it was simply not rigorously pursued.

Judge Jordan concurred as to the Cason receipt. Judges Fisher, Smith, Chagares, and Hardiman dissented.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/139003p1.pdf

Panel: McKee, Chief Judge; Ambro, Fuentes, Smith, Fisher, Chagares, Jordan, Hardiman, Greenaway, Jr., Vanaskie, Shwartz, Krause and Rendell, Circuit Judges

Argument Date: October 14, 2015

Date of Issued Opinion: August 23, 2016

Docket Number: No. 13-9003

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

Counsel: Ronald Eisenberg, Susan E. Affronti, Ryan Dunlavey, Counsel for Appellants; Amy L. Rohe, Stuart B. Lev, Counsel for Appellee; Catherine M.A. Carroll, Counsel for Amicus Appellees.

Author of Opinion: Circuit Judge Rendell

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 09/12/2016 09:17 AM     3rd Circuit     Comments (0)  

September 9, 2016
  Rosa Elida Castro v. US Department of Homeland Security - Third Circuit
Headline: Third Circuit Affirms Dismissal of Habeas Corpus Petition For Lack Of Subject Matter Jurisdiction

Area of Law: Immigration

Issue(s) Presented: Does the district court have subject matter jurisdiction to adjudicate alien-petitioners' claims that an asylum officer and immigration judge violated their Fifth Amendment procedural due process rights under 8 U.S.C. § 1252 and 8 U.S.C §1225?

Brief Summary:

Twenty-eight families entered the United States illegally and were apprehended by authorities. Because they had no immigration papers and did not claim to have been previously admitted to the United States, they were ordered to be expeditiously removed. Upon apprehension, they expressed a fear of persecution if they were to be returned to their home countries. In accordance with the law, an asylum officer interviewed each individual and determined no credible threat existed. They were granted a de novo review of this determination by an immigration judge who concurred with the findings.

Petitioners submitted petitions for habeas corpus relief, claiming that the officers and immigration judge violated their Fifth Amendment procedural due process rights. The Third Circuit affirmed the district court's findings that the court lacked subject matter jurisdiction, concluding that statutes unambiguously foreclose judicial review of all claims. Further, the Court determined that the Suspension Clause did not require that judicial review be available to address any of Petitioners' claims and therefore §1252(e) does not violate the suspension clause.


Extended Summary:

This case concerns 28 families who were natives and citizens of El Salvador, Honduras, and Guatemala who entered the United States seeking refuge. These individuals claimed to have been in fear of becoming victims of violence from gangs or domestic partners. United States Customs and Border Protection agents apprehended them within one to six hours of entering the country. Under the controlling statute, 8 U.S.C § 1252, and because these individuals had no immigration papers and none claimed to have been previously admitted to the country, they fell within the class of aliens to whom expedited removal applies. Upon apprehension, each individual expressed a fear of persecution if returned to their native country. In accordance with the law, each was referred to an asylum officer to determine if a credible fear existed, which was not found. The officers' supervisors reviewed and approved this determination.

Petitioners then requested and were granted de novo review of this determination by an immigration judge who concurred with the asylum officers' conclusions. The petitioners were referred back to the Department of Homeland Security for removal. Each family then submitted a separate habeas petition, claiming that the asylum officer and the immigration judge violated their Fifth Amendment procedural due process rights as well as a variety of other statutes.

Petitioners argued that the district court should construe §1252 to allow review of their claims in order to avoid "the serious constitutional concerns that would arise" otherwise. This argument was rejected by the district court, which concluded that the statute unambiguously foreclosed judicial review of all claims. Further, the Court determined that the Suspension Clause did not require that judicial review be available to address any of Petitioners' claims and therefore §1252(e) does not violate the Suspension Clause. The Court dismissed with prejudice the consolidated petitions for lack of subject matter jurisdiction. Petitioners then filed an appeal with this Court, challenging the district court's holding that it lacked subject matter jurisdiction as well as the conclusion that §1252(e) does not violate the Suspension Clause.

Petitioners argued that the district court has jurisdiction to entertain "whether [they have been] ordered removed" under §1252(e)(2)(B). The Court rejected this argument, pointing to §1252(a)(2)(A)(iii), which states that "No court shall have jurisdiction to review . . . the application of §1225(b)(1) to individual aliens, including the [credible fear] determination made under [§1252(b)(1)(B)]." The Court concluded that the district court lacked jurisdiction under §1252 to review Petitioners' claims and then evaluated the constitutionality of the statute under the Suspension Clause.

Petitioners argued that under the Supreme Court's Suspension Clause jurisprudence, courts must, at a minimum, be able to review the legal conclusions underlying the Executive branch's credible fear determinations, including the Executive's interpretation and application of a statute to undisputed facts. They argued that because §1252(e)(2) does not provide for at least this level of review, it constitutes an inadequate substitute for habeas relief in violation of the Suspension Clause. Finally, they argued that regardless of the extent of their constitutional or statutory due process rights, habeas relief stands as a constitutional check against illegal detention by the Executive that is separate and apart from the protections afforded by the Due Process Clause. The Government argued that the plenary power doctrine forecloses Petitioners' Suspension Clause challenge. Further, the Government argued that because Petitioners have no underlying procedural due process rights to vindicate, the scope of habeas review is irrelevant.

The Court agreed with the Government that §1252 is a constitutional and permissible suspension of the writ. The Court first pointed to the Supreme Court's holding that a statute modifying the scope of habeas review is constitutional under the Suspension Clause so long as the modified scope of review is neither inadequate nor ineffective to test the legality of a person's detention. The Court relied on a two-step inquiry where courts must first determine whether a given habeas petitioner is prohibited from invoking the Suspension Clause due to some attribute of the petitioner or to the circumstances surrounding his arrest or detention. Once it is confirmed that the petitioner is not so prohibited, the court must then turn to the question of whether the substitute for habeas is adequate and effective to test the legality of the petitioner's detention.

The Court determined that the Petitioners could not satisfy the first part of the inquiry. The Supreme Court has concluded that an alien seeking initial admission the the United States requests a privilege and has no constitutional rights regarding his application. Because the Petitioners were apprehended within hours of entering the United States, the Court concluded it was appropriate to treat them as "aliens seeking initial admission to the United States." Because the issues that the Petitioners seek to challenge all stem from the Executive branch's decision to remove them from the country, they cannot invoke the Constitution, including the Suspension Clause, in an effort to force judicial review beyond what Congress has already granted them. The Court therefore concluded that Congress may deny habeas review in federal court of claims relating to an alien's application for admission to the country, at least as to aliens who have been denied initial entry or who were apprehended very near the border and immediately after surreptitious entry into the country.

The Court acknowledged that its decision to treat Petitioners as "aliens seeking initial admission the the United States" appears to conflict with precedent suggesting that an alien's physical presence in the country alone allows for some constitutional protections. The Court reasoned that past cases involving arriving aliens rejected the aliens' efforts to invoke additional protections based merely on their presence in the territorial jurisdiction of the United States. Further, the Supreme Court has suggested that entrants like Petitioners do not qualify for constitutional protections based merely on physical presence alone. The Court affirmed the district court's order dismissing Petitioners' habeas petitions for lack of subject matter jurisdiction.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/161339p.pdf .

Panel: Smith, Hardiman, and Shwartz, Circuit Judges 

Argument Date: May 19, 2016

Date of Issued Opinion: August 29, 2016

Docket Number: 16-1339

Decided: Affirmed.

Case Alert Author: Megan Knoll

Counsel: Lee Gelernt, Jennifer Newell, Mary Catherine Roper, and Witold Walczak, Counsel for Appellants; Joseph Darrow, Erez Reuveni, Counsel for Appellees.

Author of Opinion: Circuit Judge Smith

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/09/2016 01:24 PM     3rd Circuit     Comments (0)  

  Rosa Elida Castro v. US Department of Homeland Security - Third Circuit
Headline: Third Circuit Affirms Dismissal of Habeas Corpus Petition For Lack Of Subject Matter Jurisdiction

Area of Law: Immigration

Issue(s) Presented: Does the district court have subject matter jurisdiction to adjudicate alien-petitioners' claims that an asylum officer and immigration judge violated their Fifth Amendment procedural due process rights under 8 U.S.C. § 1252 and 8 U.S.C §1225?

Brief Summary:

Twenty-eight families entered the United States illegally and were apprehended by authorities. Because they had no immigration papers and did not claim to have been previously admitted to the United States, they were ordered to be expeditiously removed. Upon apprehension, they expressed a fear of persecution if they were to be returned to their home countries. In accordance with the law, an asylum officer interviewed each individual and determined no credible threat existed. They were granted a de novo review of this determination by an immigration judge who concurred with the findings.

Petitioners submitted petitions for habeas corpus relief, claiming that the officers and immigration judge violated their Fifth Amendment procedural due process rights. The Third Circuit affirmed the district court's findings that the court lacked subject matter jurisdiction, concluding that statutes unambiguously foreclose judicial review of all claims. Further, the Court determined that the Suspension Clause did not require that judicial review be available to address any of Petitioners' claims and therefore §1252(e) does not violate the suspension clause.


Extended Summary:

This case concerns 28 families who were natives and citizens of El Salvador, Honduras, and Guatemala who entered the United States seeking refuge. These individuals claimed to have been in fear of becoming victims of violence from gangs or domestic partners. United States Customs and Border Protection agents apprehended them within one to six hours of entering the country. Under the controlling statute, 8 U.S.C § 1252, and because these individuals had no immigration papers and none claimed to have been previously admitted to the country, they fell within the class of aliens to whom expedited removal applies. Upon apprehension, each individual expressed a fear of persecution if returned to their native country. In accordance with the law, each was referred to an asylum officer to determine if a credible fear existed, which was not found. The officers' supervisors reviewed and approved this determination.

Petitioners then requested and were granted de novo review of this determination by an immigration judge who concurred with the asylum officers' conclusions. The petitioners were referred back to the Department of Homeland Security for removal. Each family then submitted a separate habeas petition, claiming that the asylum officer and the immigration judge violated their Fifth Amendment procedural due process rights as well as a variety of other statutes.

Petitioners argued that the district court should construe §1252 to allow review of their claims in order to avoid "the serious constitutional concerns that would arise" otherwise. This argument was rejected by the district court, which concluded that the statute unambiguously foreclosed judicial review of all claims. Further, the Court determined that the Suspension Clause did not require that judicial review be available to address any of Petitioners' claims and therefore §1252(e) does not violate the Suspension Clause. The Court dismissed with prejudice the consolidated petitions for lack of subject matter jurisdiction. Petitioners then filed an appeal with this Court, challenging the district court's holding that it lacked subject matter jurisdiction as well as the conclusion that §1252(e) does not violate the Suspension Clause.

Petitioners argued that the district court has jurisdiction to entertain "whether [they have been] ordered removed" under §1252(e)(2)(B). The Court rejected this argument, pointing to §1252(a)(2)(A)(iii), which states that "No court shall have jurisdiction to review . . . the application of §1225(b)(1) to individual aliens, including the [credible fear] determination made under [§1252(b)(1)(B)]." The Court concluded that the district court lacked jurisdiction under §1252 to review Petitioners' claims and then evaluated the constitutionality of the statute under the Suspension Clause.

Petitioners argued that under the Supreme Court's Suspension Clause jurisprudence, courts must, at a minimum, be able to review the legal conclusions underlying the Executive branch's credible fear determinations, including the Executive's interpretation and application of a statute to undisputed facts. They argued that because §1252(e)(2) does not provide for at least this level of review, it constitutes an inadequate substitute for habeas relief in violation of the Suspension Clause. Finally, they argued that regardless of the extent of their constitutional or statutory due process rights, habeas relief stands as a constitutional check against illegal detention by the Executive that is separate and apart from the protections afforded by the Due Process Clause. The Government argued that the plenary power doctrine forecloses Petitioners' Suspension Clause challenge. Further, the Government argued that because Petitioners have no underlying procedural due process rights to vindicate, the scope of habeas review is irrelevant.

The Court agreed with the Government that §1252 is a constitutional and permissible suspension of the writ. The Court first pointed to the Supreme Court's holding that a statute modifying the scope of habeas review is constitutional under the Suspension Clause so long as the modified scope of review is neither inadequate nor ineffective to test the legality of a person's detention. The Court relied on a two-step inquiry where courts must first determine whether a given habeas petitioner is prohibited from invoking the Suspension Clause due to some attribute of the petitioner or to the circumstances surrounding his arrest or detention. Once it is confirmed that the petitioner is not so prohibited, the court must then turn to the question of whether the substitute for habeas is adequate and effective to test the legality of the petitioner's detention.

The Court determined that the Petitioners could not satisfy the first part of the inquiry. The Supreme Court has concluded that an alien seeking initial admission the the United States requests a privilege and has no constitutional rights regarding his application. Because the Petitioners were apprehended within hours of entering the United States, the Court concluded it was appropriate to treat them as "aliens seeking initial admission to the United States." Because the issues that the Petitioners seek to challenge all stem from the Executive branch's decision to remove them from the country, they cannot invoke the Constitution, including the Suspension Clause, in an effort to force judicial review beyond what Congress has already granted them. The Court therefore concluded that Congress may deny habeas review in federal court of claims relating to an alien's application for admission to the country, at least as to aliens who have been denied initial entry or who were apprehended very near the border and immediately after surreptitious entry into the country.

The Court acknowledged that its decision to treat Petitioners as "aliens seeking initial admission the the United States" appears to conflict with precedent suggesting that an alien's physical presence in the country alone allows for some constitutional protections. The Court reasoned that past cases involving arriving aliens rejected the aliens' efforts to invoke additional protections based merely on their presence in the territorial jurisdiction of the United States. Further, the Supreme Court has suggested that entrants like Petitioners do not qualify for constitutional protections based merely on physical presence alone. The Court affirmed the district court's order dismissing Petitioners' habeas petitions for lack of subject matter jurisdiction.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/161339p.pdf .

Panel: Smith, Hardiman, and Shwartz, Circuit Judges 

Argument Date: May 19, 2016

Date of Issued Opinion: August 29, 2016

Docket Number: 16-1339

Decided: Affirmed.

Case Alert Author: Megan Knoll

Counsel: Lee Gelernt, Jennifer Newell, Mary Catherine Roper, and Witold Walczak, Counsel for Appellants; Joseph Darrow, Erez Reuveni, Counsel for Appellees.

Author of Opinion: Circuit Judge Smith

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/09/2016 01:24 PM     3rd Circuit     Comments (0)  

  Daniel Binderup v. Attorney General United States of America - Third Circuit
Headline: Third Circuit Panel Restores Second Amendment Rights to Challengers

Area of Law: Constitutional Law, Criminal Law

Issue(s) Presented: Whether 18 U.S.C. § 922(g)(1) applies to convictions for which it is possible to receive an imprisonment sentence of one year or less and, if it does, whether 18 U.S.C. § 922(g)(1), as applied to challengers, violates their Second Amendment rights.

Brief Summary: This decision failed to accumulate a majority of circuit judges for most of the analysis. However, a unanimous Court held that 18 U.S.C. § 922(g)(1) applies to convictions eligible for a sentence of imprisonment for more than one year even if the conviction is also eligible for a shorter sentence. A majority of the Court also held that, as applied to the two challengers in this case, 18 U.S.C. § 922(g)(1) unconstitutionally infringed on their Second Amendment rights.

Extended Summary: Sitting en banc, the Third Circuit Court of Appeals heard two challenges to a major federal firearms statute in a consolidated oral argument. The federal statute in question was the Gun Control Act, 18 U.S.C. § 922(g)(1). This statute generally prohibits the possession of firearms by those convicted, in any court, of a "crime punishable by imprisonment for a term exceeding one year."

The first challenger was Daniel Binderup, who had been in a consensual sexual relationship with a 17-year-old female when he was 41 years old. Although the teen was a minor, she was over Pennsylvania's legal age of consent. Binderup pled guilty to corruption of a minor in connection with this relationship - a misdemeanor offense punishable by up to five years in prison. His actual sentence was probation for three years and a fine, plus court costs and restitution. Binderup had no further criminal history.

Julio Suarez was the second challenger. Police noticed a handgun and two "speed loaders" in Suarez's vehicle after stopping him on suspicion of driving while intoxicated. Suarez did not have a permit for the gun and ultimately pled guilty to unlawfully carrying a handgun without a license - a misdemeanor offense punishable by imprisonment for "not less than 30 days and not [more than] three years or a fine of not less than $250 and not [more than] $2,500 or both." His actual punishment was a suspended sentence of 180 days' imprisonment and a fine, followed by probation for one year.

Binderup and Suarez (the "Challengers") wanted to obtain guns but § 922(g)(1) barred them from possessing firearms because their situations did not fall within any of the statutory exceptions. A unanimous Court quickly rejected the Challengers' first argument that § 922(g)(1) did not apply to their convictions. The Challengers argued that, because their convictions were eligible for sentences less than two years' imprisonment, the convictions fell within an exception to § 922(g)(1) exempting state misdemeanors "punishable by a term of imprisonment of two years or less." The Third Circuit interpreted "punishable by" to mean that the crime in question could not be punished by a sentence of more than two years.

The second argument was an "as-applied" challenge to the constitutionality of the statute, that is, the law's "application to a particular person under particular circumstances deprived that person of a constitutional right." The Court utilized a framework for as-applied challenges to gun laws. First, the "challenger must prove...that a presumptively lawful regulation burdens his Second Amendment rights." To do this, he must "(1) identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member, and then (2) present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class." The challenger holds the burden of rebutting the presumptive lawfulness of the exclusion with a strong showing. If the challenger succeeds, "the burden shifts to the Government to demonstrate that the regulation satisfies some form of heightened scrutiny."

Using this framework, the Court began with the presumption that § 922(g)(1) was valid. Prior Supreme Court precedent affirmed that "prohibitions on the possession of firearms by felons" are presumptively valid. For its part, § 922(g)(1) described convictions that, though classified as misdemeanors in a state court, met the traditional definition of a felony. Both Challengers' crimes fell within that traditional definition, even though their ultimate sentences did not.

The Court ultimately concluded that the Challengers' convictions "were not serious enough to strip them of their Second Amendment rights." In particular, the classification a state legislature gives to an offense "is a powerful expression of its belief that the offense is not serious enough to be disqualifying," though the maximum possible punishment remains probative on the issue. That the Challengers received lenient sentences as measured against the guidelines further supported their arguments.

Finally, the Court determined that the law did not survive heightened scrutiny as applied to the Challengers. While the law was intended to further a governmental interest of promoting public safety, applying either intermediate or strict scrutiny, the Government did not meet its burden to prove the appropriateness of the means to further this interest.

Judge Fuentes, joined by six other judges, wrote the concurring and dissenting opinion dissenting in the judgment. Its view was that § 922(g)(1) could never be successfully attacked in an as-applied challenge because felons and felon-equivalents affected by the law lack Second Amendment rights and, therefore, their rights could not be burdened. The concurring and dissenting opinion also argued that the approach adopted by the plurality opinion was unworkable and "place[d] an extraordinary administrative burden on district courts."

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/144549p.pdf.

Panel: McKee, Chief Judge and Ambro, Fuentes, Smith, Fisher, Chagares, Jordan, Hardiman, Greenaway, Jr., Vanaskie, Shwartz, Krause, Restrepo, Nygaard, and Roth, Circuit Judges

Argument Date: June 1, 2016

Date of Issued Opinion: September 7, 2016

Docket Number: Nos. 14-4549, 14-4550, 15-1975, 15-1976

Decided: Affirmed

Case Alert Author: Sarah Kalman

Counsel: Benjamin C. Mizer, Esquire, Principal Deputy Assistant Attorney General, Zane D. Memeger, Esquire, United States Attorney, Mark B. Stern, Esquire, Michael S. Raab, Esquire,
Patrick Nemeroff, Esquire, and Abby C. Wright, Esquire, Counsel for Appellants/Cross-Appellees; Alan Gura, Esquire and Douglas Gould, Esquire, Counsel for Appellees/Cross-Appellants; Stefan B. Tahmassebi, Esquire, Amicus Curiae Counsel on behalf of the NRA.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/09/2016 01:20 PM     3rd Circuit     Comments (0)  

  L.R. v. School District of Philadelphia - Third Circuit
Headline: Kindergarten student deprived of her Fourteenth Amendment substantive due process rights under a state-created danger theory when her teacher allowed her to leave school premises with a stranger who sexually assaulted her later that day

Area of Law: Fourteenth Amendment, Qualified Immunity

Issue(s) Presented: Is a teacher entitled to qualified immunity or does the state-created danger exception to the Fourteenth Amendment apply when he allows a minor student, against school policy, to leave school premises with a stranger, resulting in the student's sexual assault?

Brief Summary: In January 2013, Defendant Reginald Littlejohn, a teacher at W.C. Bryant Elementary School in Philadelphia, allowed his kindergarten student, "Jane," to leave school premises with Christina Regusters. Regusters did not present identification or evidence that Jane was permitted to leave with her, which is required by school district policy. After leaving the classroom and school premises, Regusters sexually assaulted Jane, who suffered significant physical and emotional injuries.
L.R., Jane's parent and guardian, alleged Jane's Fourteenth Amendment substantive due process rights were violated under a state-created danger theory when Littlejohn allowed her to leave school with a stranger. In his capacity as a teacher, Littlejohn asserted a defense of qualified immunity, which protects public officials from unlimited liability when serving as state actors. However, a qualified immunity defense will not prevail when state actors violate constitutional rights that they should have been or were aware existed at the time. Qualified immunity claims consist of two-prongs: "(1) whether the plaintiff sufficiently alleged the violation of the constitutional right, and (2) whether the right was 'clearly established' at the time of the official's conduct." The Third Circuit found that Littlejohn was not entitled to qualified immunity as to L.R.'s fourteenth amendment substantive due process claim.

Extended Summary: In January 2013, Defendant Reginald Littlejohn, a teacher at W.C. Bryant Elementary School in Philadelphia, allowed his kindergarten student, "Jane," to leave school premises with Christina Regusters. Regusters did not present identification or evidence that Jane was permitted to leave with her, which is required by school district policy. After leaving the classroom and school premises, Regusters sexually assaulted Jane, who suffered significant physical and emotional injuries.
Jane's parent and guardian, L.R., filed a civil rights lawsuit under 42 U.S.C. §1983 against Littlejohn, alleging Jane's Fourteenth Amendment substantive due process rights were violated under a state-created danger theory. L.R. alleges that Littlejohn caused the danger that "resulted in Jane's physical and emotional harm" by allowing Jane to leave school with an unidentified adult. Littlejohn moved to dismiss, claiming qualified immunity in his capacity as a teacher. Qualified immunity protects state actors from unlimited liability when acting in their official capacity. However, a qualified immunity defense can be refuted when state actors violate constitutional rights that they should have been or were aware existed at the time. The Third Circuit evaluated L.R.'s allegations and Littlejohn's qualified immunity defense using the two-pronged test for qualified immunity: "(1) whether the plaintiff sufficiently alleged the violation of a constitutional right, and (2) whether the right was 'clearly established' at the time of the official's conduct."
In evaluating the first prong, the Third Circuit used a prior Supreme Court decision to clarify that the Due Process Clause of the Fourteenth Amendment does not require the State to protect private individuals from private actors, but instead protects private individuals from State-created or enhanced dangers.
The Third Circuit analyzed the four elements of the state-created danger exception, as alleged by L.R., finding that a substantive due process violation was sufficiently asserted. Focusing on the fourth state-created danger element initially, "affirmative use of authority creating or increasing danger," the Third Circuit found that Littlejohn did not maintain the status quo of a safe kindergarten classroom for Jane by allowing her to leave with Regusters. The Third Circuit stated that permitting Jane to leave with Regusters without proper identification or verification constituted an affirmative misuse of his state authority in his capacity as a kindergarten teacher and the "gatekeeper" of the safety of his students in his classroom.
Second, the Third Circuit found that L.R. proved that "the harm ultimately caused was a foreseeable and fairly direct result of the state's actions." The Third Circuit reasoned that the possible harm that could result from allowing a kindergartener to leave school premises with a stranger was "obvious" and that experience and common sense made this risk foreseeable. Also, the Third Circuit stated that the harm was a "fairly direct result" of Littlejohn's decision to allow Jane to leave with Regusters.
Next, the Third Circuit concluded that L.R. satisfied the second prong of state-created danger in proving that Littlejohn's release of Jane to a complete stranger shocked the conscience. The Third Circuit found that Littlejohn was deliberately indifferent as he consciously disregarded "a substantial risk of serious harm" by allowing Jane to leave with Regusters. According to the Third Circuit, Littlejohn's behavior shocked the conscience since he was aware of the obvious risk of allowing a kindergartener to leave school with a stranger due to his knowledge of the school policies and his own attempt to abide by them by asking Regusters for her identification.
Lastly, the Third Circuit established that Jane was a "foreseeable victim," because a teacher-student relationship existed between Littlejohn, the state actor, and Jane, the "foreseeable victim of the state actor's conduct." Having satisfied this final element, the Third Circuit concluded that L.R. had successfully alleged Jane's substantive due process rights had been violated, thus satisfying the first prong of the qualified immunity test.
The Third Circuit also concluded that the second prong of the qualified immunity test was satisfied. The Third Circuit stated that Jane, especially since she was a vulnerable five-year old child, had a right to be protected in the safe environment of her classroom and not to be removed into an environment that clearly produced harm. Looking to Supreme Court precedent and other recent judicial decisions, the Third Circuit held that at the time Littlejohn authorized Jane to leave the classroom, this right was clearly established.
In sum, L.R. sufficiently proved a state-created danger exception. By allowing her to leave school with a stranger, Littlejohn clearly deprived Jane of her substantive due process rights, which he knew to exist at the time, precluding his qualified immunity defense.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/144640p.pdf.

Panel: Fuentes, Krause, and Roth, Circuit Judges

Argument Date: February 11, 2016

Date of Issued Opinion: September 6, 2016

Docket Number: No. 14-4640

Decided: Affirmed

Counsel: Kerri E. Chewning and Jeffrey M. Scott, Counsel for Appellants; Charles L. Becker, Dominic C. Guerrini, Thomas R. Kline, Tracie L. Palmer, and David C. Williams, Counsel for Appellee.

Author of Opinion: Circuit Judge Fuentes

Circuit: Third Circuit

Case Alert Author: Katherine A. Osevala

Case Alert Circuit Supervisor: Prof. Mary E. Lev

    Posted By: Susan DeJarnatt @ 09/09/2016 01:17 PM     3rd Circuit     Comments (0)  

  North Jersey Media Group, Inc. v. U.S. - Third Circuit
Headline: Third Circuit Protects Unindicted "Bridgegate" Co-Conspirator's Identity from Media Requests

Area of Law: Criminal Law, Constitutional Law, Rights of Public Access

Issue(s) Presented: Whether a prosecutor's letter naming an unindicted co-conspirator is more like a bill of particulars, subject to a right of public access, or a discovery disclosure in a criminal case protected from public view.

Brief Summary: The Third Circuit vacated the District Court's order requiring the government to disclose a prosecutor's letter naming an unidentified, unindicted co-conspirator in the Bridgegate case. It held that the letter was not subject to disclosure as a matter historically open to the press and was not akin to a judicial record

Extended Summary: Federal prosecutors brought charges against certain New Jersey government officials involved in a widely reported incident involving allegedly orchestrated lane closures on the George Washington Bridge as an act of political revenge. This scandal is frequently referred to as "Bridgegate."

At the center of the dispute was a prosecutor's letter naming this unidentified, unindicted co-conspirator in the infamous Bridgegate scandal. The unidentified "John Doe" intervened for an appeal after a consortium of media groups obtained a district court order requiring the government to disclose the letter. The central question was whether this letter was an integral part of the criminal discovery process that is protected from public view, or a bill of particulars ("a formal written statement by the prosecutor providing details of the charges against the defendant"), which is publicly accessible. Ultimately, the Court ruled that the letter was not subject to public disclosure.

The Media asserted a right of access to the letter under the First Amendment and common law. To determine the right of access under the First Amendment, the Court used a two-pronged evaluation. First, the "experience prong" evaluates if the place and process was historically open to the press. Second, the "logic prong" evaluates "whether public access plays a significant positive role in the functioning of the particular process in question."

The letter in question was not treated by the parties to the litigation as having the same legal effect of a bill of particulars, nor did it serve the same purpose. Because the Court agreed with John Doe and the government that the letter in question was not akin to a bill of particulars, the first prong of the test was not satisfied. The Court noted in dicta that the second prong would have also weighed in Doe's favor.

As for any common law right of access to the letter, the pertinent question was "whether [the document at issue] was considered to be a 'judicial record.'" Here, the letter was not formally filed with the court. Sending the letter directly to the trial judge also did not bring the letter within the scope of the common law right because the document lacks "adjudicatory significance." As the government describes it, "[t]he court was merely the passive repository of the letter and needed to do nothing with it." Therefore, the letter was not a judicial record subject to the common law right of access.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/162431p.pdf.

Panel: Ambro, Jordan, and Scirica, Circuit Judges

Argument Date: June 6, 2016

Date of Issued Opinion: September 8, 2016

Docket Number: No. 16-2431

Decided: Vacated


Counsel: Jenny R. Kramer, Esq., for Intervenor-Appellant, John Doe; Bruce S. Rosen, Esq., for Media Consortium Appellees; Lee M. Cortes, Jr., Esq., Mark E. Coyne, Esq., David W. Feder, Esq., Paul J. Fishman, Esq., J. Fortier Imbert, Esq., and Vikas Khanna, Esq., for Appellee United States of America; Michael A. Baldassare, Esq., Dillon H. Malar, Esq., Jennifer Mara, Esq., for Defendant William E. Baroni, Jr.; Michael D. Critchley, Esq., for Defendant Bridget Anne Kelly; David R. Kromm, Esq., for Defendant Port Authority of New York and New Jersey.

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Author: Sarah Kalman

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/09/2016 01:13 PM     3rd Circuit     Comments (0)  

September 7, 2016
  Peruta v. County of San Diego - Ninth Circuit
Headline: The Ninth Circuit concludes that the protection of the Second Amendment - whatever the scope of that protection may be - does not extend to the carrying of concealed firearms in public by members of the general public.

Areas of Law: Constitutional Law, Second Amendment

Issues Presented: Whether the Second Amendment protects the ability to carry concealed firearms in public.

Brief Summary: The Ninth Circuit, sitting en banc, affirmed the findings of the district courts that the policies of San Diego County and Yolo County did not violate the Second Amendment. On appeal, the plaintiffs, who were denied licenses to carry a concealed firearm for failing to establish sufficient good cause under county policy, argued that the counties' good cause requirements for concealed carry violate the Second Amendment. Following the decisions of Dist. of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010), the Ninth Circuit engaged in a four-part historical inquiry of the Second Amendment and Fourteenth Amendment and found that based upon the historical materials, from English law in 1299 to Robertson v. Baldwin, 165 U.S. 275 (1897), that the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.

Significance: The Ninth Circuit, sitting en banc, concluded that the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public. As such, the Ninth Circuit held that the Second Amendment necessarily allows a state to choose to impose any prohibition or restriction on concealed carry, including a requirement of "good cause," however defined.

Extended Summary: Under California law, carrying concealed firearms in public, whether loaded or unloaded, is generally prohibited. Cal. Penal Code § 25400. However, Cal. Penal Code § 2655 provides that the prohibition of § 25400 does not apply to those who have been issued licenses to carry concealed weapons. Cal. Penal. Code § 26150(a), authorizes the sheriff of a county to issue a concealed carry license to a person upon proof of the following: (1) the applicant is of good moral character; (2) good cause exists for issuance of the license; (3) the applicant is a resident of the county or a city within the county, or the applicant's principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business; and (4) the applicant has completed a course of training as described in Cal. Penal Code § 26165. Cal. Penal Code § 26160 also requires sheriffs and municipal police chiefs to "publish and make available a written policy summarizing the provisions" of Cal. Penal Code §§ 26150(a) and 26155(a).

Pursuant to Cal. Penal Code § 26160, the San Diego County Sheriff's Department defined "good cause" to mean, inter alia:

a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way. Simply fearing for one's personal safety alone is not considered good cause. This criterion can be applied to situations related to personal protection as well as those related to individual businesses or occupations.

Unlike San Diego County, the published policy of Yolo County does not define "good cause;" instead, Yolo County provides examples in which "good cause" exists, such as: (1) victims of violent crime and/or documented threats of violence; (2) business owners who carry large sums of cash or valuable items; and (3) business owners who work all hours in remote areas and are likely to encounter dangerous people and situations. Yolo County similarly provides examples where "good cause" does not exist, such as: (1) recreation in remote areas; (2) hunting or fishing; (3) self-protection and protection of family without credible threats of violence; (4) employment in the security field; and (5) personal safety due to job conditions or duties placed on the applicant by the employer.

Plaintiffs, Edward Peruta ("Peruta") and Adam Richards ("Richards") (collectively, "Plaintiffs"), residents of San Diego County and Yolo County, respectively, sought to obtain a license to carry a concealed firearm, but were denied for failing to establish good cause under county policy. Plaintiffs brought separate suits on Second Amendment grounds, challenging the two counties' interpretation and application of the statutory good cause requirement under California law.

The district courts granted summary judgment in each case on grounds that the counties' policies did not violate the Second Amendment; however a divided Ninth Circuit panel reversed both decisions. As to Peruta, the Ninth Circuit panel held that San Diego County's policy violated the Second Amendment because the Second Amendment required that "the states permit some form of carry for self-defense outside the home." Peruta v. Cty. Of San Diego, 742 F.3d 1144, 1172 (9th Cir. 2014). As to Richards, the Ninth Circuit panel held that in light of its holding in Peruta, the Yolo County policy also violated the Second Amendment. Richards v. Prieto, 560 Fed. Appx. 681 (9th Cir. 2014).

On appeal to the Ninth Circuit, sitting en banc, faced the issue of whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public.

The Ninth Circuit was primarily guided by two Supreme Court decisions, Dist. of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010).

In Heller, the plaintiff challenged a District of Columbia statute that completely banned the possessions of handguns in the home and required that any lawful firearm in the home be rendered inoperable by either being disassembled or bound by a trigger lock at all times. 554 U.S. at 628. The Supreme Court interpreted the phrase "shall not be infringed" to mean that the Second Amendment was a codified pre-existing individual right to keep and bear arms for self-defense and struck down the challenged statute. Id. At 635. Notably however, the Supreme Court stated that the rights secured by the Second Amendment were not unlimited. Id. at 626-27.

In McDonald, the plaintiffs challenged laws of the City of Chicago and the Village of Oak Park, a Chicago suburb, which effectively banned handgun possession by almost all public citizens. 561 U.S. at 742. The Supreme Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and that it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system or ordered liberty. Id. at 777-78. As such, the Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States, and therefore to handguns. Id. at 744-45.

Following Heller and McDonald, the Ninth Circuit engaged in the same four-part historical inquiry followed by the Supreme Court and the Ninth Circuit began its historical analysis by finding that by the end of the eighteenth century, when the Second Amendment was ratified, English law had for centuries, from Edward I in 1299 through the English Bill of Rights in 1689, consistently prohibited carrying concealed arms in public. The Ninth Circuit also found that in Colonial America, the law with respect to concealed weapons did not significantly differ from the law in England and that some colonies, such as Massachusetts Bay, adopted English law verbatim.

In the second part of its historical analysis, the Ninth Circuit then turned to precedent of state courts to determine the scope of the Second Amendment as it was understood by the adopters of the Fourteenth Amendment and found that pre-adoption, state courts before the Civil War unanimously, with one short-lived exception (see Bliss v. Commonwealth, 12 Ky. 90 (1822) (holding that "in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise")) concluded that members of the general public could be prohibited from carrying concealed weapons (see State v. Reid, 1 Ala. 612 (1840) (holding that the English Bill of Rights did not protect a right to carry concealed weapons); Aymette v. State, 21 Tenn. 154 (1840) (holding that concealable weapons did not come within the scope of either the English Bill of Rights or the state constitution); State v. Buzzard, 4 Ark. 18, 19 (1842) (holding that a state statute that provided that "every person who shall wear any pistol, dirk, butcher or large knife, or a sword in a cane, concealed as a weapon, unless upon a journey, shall be adjudged guilty of a misdemeanor" violated neither the federal nor the state constitution); Nunn v. State, 1 Ga. 243 (1846) (holding that a state statute that prohibited the carrying of concealed weapons was constitutional); State v. Chandler, 5 La. Ann. 489 (1850) (holding that a law prohibiting concealed weapons did not violate the Second Amendment)).

In the third part of its historical analysis, which focused on the years following adoption of the Fourteenth Amendment and the Ninth Circuit found that the post-Civil War constitutions of several states either explicitly stated that the right to carry concealed weapons could be prohibited by the legislature (see N.C. Cost. Of 1868, art. I, § 24 (1875); Colo. Const. art. II, § 13 (1876); La. Const. of 1879, art. III; Mont. Const. of 1889, art. II, § 12; Miss. Const. art. III, § 12 (1890)) or (2) gave state legislatures broad power to regulate the manner in which arms could be carried (see Ga. Const. of 1868, art. I, § 14; Tex. Const. of 1868, art. I, § 13; Tenn. Const. art. I, § 26 (1870); Fla. Const. of 1885, art. I, § 20; Idaho Const. of 1889, art. I, § 11; Utah Const. of 1896, art. I, § 6).

Finally, and in the fourth part of its historical analysis, the Ninth Circuit cited to Robertson v. Baldwin, 165 U.S. 275 (1897) for the proposition that, as far back as 1897, the Supreme Court understood that the Second Amendment did not protect the right to carry a concealed weapon. In Robertson, the Supreme Court held that "the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons. Id. at 281-82.

Based upon the historical materials such as: (1) the acknowledged predecessor to the Second Amendment, the 1689 English Bill of Rights, which specifically prohibited the carrying of concealed weapons); (2) nearly unanimous state court decisions in the years after the adoption of the Second Amendment and before the adoption of the Fourteenth Amendment (concluding that laws forbidding concealed weapons were consistent with both the Second Amendment and their state constitutions); (3) the unanimous state court decisions in the decades immediately after the adoption of the Fourteenth Amendment (upholding the ability of state legislatures to prohibit concealed weapons); and (4) Robertson (holding that the protection of the Second Amendment does not extend to the carrying of concealed weapons), the Ninth Circuit concluded that the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.

To read the full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/09/10-56971.pdf

Panel: Sidney R. Thomas, Chief Judge and Harry Pregerson, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, William A. Fletcher, Richard A. Paez, Consuelo M. Callahan, Carlos T. Bea, N. Randy Smith and John B. Owens, Circuit Judges.

Argument Date: June 16, 2015

Date of Issued Opinion:
June 9, 2016

Docket Number: 10-56971

Decided: Affirm the judgments of the district courts in both cases, which held that the policies of San Diego County and Yolo County did not violate the Second Amendment.

Case Alert Author: Ryan Arakawa

Counsel:

In No. 10 - 56971: Paul D. Clement (argued), Bancroft PLLC, Washington, D.C.; Paul Henry Neuharth, Jr., Paul Neuharth, Jr., APC, San Diego, California; Carl D. Michel, Glenn S. McRoberts, Sean A. Brady, and Bobbie K. Ross, Michel & Associates, P.C., Long Beach, California, for Plaintiffs - Appellants.

Edward C. DuMont (argued), Solicitor General; Gregory David Brown, Deputy Solicitor General; Douglas J. Woods, Senior Assistant Attorney General; Anthony R. Hakl, Deputy Attorney General; Mark Beckington, Supervising Deputy Attorney General; Kamala D. Harris, Attorney General of California; Office of the California Attorney General, San Francisco, California; for Intervenor.

James Chapin, County Counsel, Office of County Counsel, San Diego, California, for Defendants - Appellees.

In No. 11 - 16255: Alan Gura (argued), Gura & Possessky, PLLC, Alexandria, Virginia; Donald Kilmer, Jr., Law Offices of Donald Kilmer, San Jose, California; for Plaintiffs - Appellants.

John A. Whitesides (argued), Peter D. Halloran, and Serena M. Warner, Angelo, Kilday & Kilduff, Sacramento, California, for Defendants - Appellees Ed Prieto and County of Yolo.

Stefan B. Tahmassebi, Fairfax, Virginia; Stephen Porter Halbrook, Fairfax, Virginia; for Amicus Curiae Congress of Racial Equality, Inc.

John D. Ohlendorf, Peter A. Patterson, David H. Thompson, and Charles J. Cooper, Cooper & Kirk, PLLC, Washington, D.C., for Amicus Curiae National Rifle Association of America, Inc.

Dan M. Peterson, Dan M. Peterson PLLC, Fairfax, Virginia; David B. Kopel, Independence Institute, Denver, Colorado, for Amici Curiae International Law Enforcement Educators and Trainers Association, Law Enforcement Legal Defense Fund, Law Enforcement Action Network, and Law Enforcement Alliance of America.

Simon Frankel, Samantha J. Choe, Steven D. Sassman, and Ryan M. Buschell, Covington & Burling, LLP, San Francisco, California, for Amici Curiae Legal Community Against Violence, Major Cities Chiefs Association, Association of Prosecuting Attorneys, George Gascón, San Francisco District Attorney, and Law Center to Prevent Gun Violence.

Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia, for Amici Curiae Second Amendment Foundation, Inc., Calguns Foundation, Inc., Adam Richards, and Brett Stewart.

John C. Eastman, Anthony T. Caso, and Karen J. Lugo, Center for Constitutional Jurisprudence, Orange, California, for Amici Curiae Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, and Law Enforcement Alliance of America.

Don Kates, Michel & Associates, P.C., Battle Ground, Washington, for Amici Curiae The Gun Owners of California and H.L. Richardson.

Neil R. O'Hanlon, Hogan Lovells US LLP, Los Angeles, California; Jonathan L. Diesenhaus, Adam K. Levin, James W. Clayton, and Kathryn Linde Marshall, Hogan Lovells US LLP, Washington, D.C., for Amici Curiae Brady Center to Prevent Gun Violence, The International Brotherhood of Police Officers, and The Police Foundation.

John A. Whitesides and Serena M. Warner, Angelo, Kilday & Kilduff, Sacramento, California, for Amici Curiae Edward G. Prieto and County of Yolo.

Girard D. Lau, Solicitor General of Hawaii; Kimberly Tsumoto Guidry, First Deputy Solicitor General; Robert T. Takatsuji, Deputy Solicitor General; Department of the Attorney General, Honolulu, Hawaii; for Amicus Curiae State of Hawaii.

Paul R. Coble, Krista MacNevin Jee, James R. Touchstone, and Martin Joel Mayer, Jones & Mayer, Fullerton, California, for Amici Curiae California Police Chiefs' Association, California Peace Officers' Association, and California Sheriffs' Association.

Stephen M. Duvernay and Bradley A. Benbrook, Benbrook Law Group, PC, Sacramento, California, for Amici Curiae Firearms Policy Coalition, Inc., Firearms Policy Foundation, Inc., California Association of Federal Firearms Licensees, Inc., Pink Pistols, Gun Rights Across America, Liberal Gun Owners Association, Madison Society, Inc., Hawaii Defense Foundation, Florida Carry, Inc., Illinois Carry, Knife Rights Foundation, Inc., and Second Amendment Plaintiffs.

Charles Nichols, Redondo Beach, California, for Amicus Curiae California Right to Carry.

Brian S. Koukoutchos, Mandeville, Louisiana, for Amici Curiae Pink Pistols, Women Against Gun Control, Inc., and Second Amendment Sisters.

Thomas Peter Pierce and Stephen D. Lee, Richards, Watson & Gershon, Los Angeles, California, for Amicus Curiae League of California Cities.

Andrew S. Oldham, Deputy General Counsel; James D. Blacklock, General Counsel; Office of the Governor, Austin, Texas; for Amici Curiae Governors of Texas, Louisiana, Maine, Mississippi, Oklahoma, and South Dakota.

Brett J. Talley, Deputy Solicitor General; Andrew L. Brasher, Solicitor General; Luther Strange, Attorney General; Office of the Attorney General of Alabama, Montgomery, Alabama; for Amici Curiae Alabama, Alaska, Arkansas, Florida, Idaho, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wisconsin.

Robert J. Olson, Jeremiah L. Morgan, John S. Miles, William J. Olson, and Herbert W. Titus, William J. Olson, P.C., Vienna, Virginia; for Amici Curiae Gun Owners of America, Inc.; Gun Owners Foundation; U.S. Justice Foundation; The Lincoln Institute for Research and Education; The Abraham Lincoln Foundation for Public Policy Research, Inc.; Policy Analysis Center; Institute on the Constitution; and Conservative Legal Defense and Education Fund.

Michael Connelly, Ramona, California, for Amicus Curiae U.S. Justice Foundation.

Jonathan E. Taylor and Deepak Gupta, Gupta Beck PLLC, Washington, D.C., for Amicus Curiae Everytown for Gun Safety.

David D. Jensen, David Jensen PLLC, New York, New York, for Amici Curiae New York State Rifle & Pistol Association, Association of New Jersey Rifle & Pistol Clubs, Commonwealth Second Amendment, Gun Owners' Action League, and Maryland State Rifle & Pistol Association.

Jonathan S. Goldstein, McNelly & Goldstein, LLC, Hatfield, Pennsylvania, for Amici Curiae Western States Sheriffs' Association, Sheriff Adam Christianson, Sheriff Jon Lopey, Sheriff Margaret Mims, Sheriff Tom Bosenko, David Hencratt, Sheriff Steven Durfor, Sheriff Thomas Allman, Sheriff David Robinson, Sheriff Scott Jones, Sheriff Bruce Haney, Sheriff John D'Agostini, and Retired Sheriff Larry Jones.

Brandon M. Kilian, La Grange, California, for Amicus Curiae The Madison Society, Inc.
Michael John Vogler, Vogler Law Offices, Pasadena, California, pro se Amicus Curiae.

Author of Opinion: Judge William A. Fletcher

Circuit: Ninth Circuit

Case Alert Supervisor:
Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/07/2016 01:18 PM     9th Circuit     Comments (0)  

  TEIXEIRA, et. al. v. COUNTY OF ALAMEDA, et. al. - 9th Circuit
Headline: Ninth Circuit panel held that a county ordinance regulating the location of a retail firearm store was an unconstitutional violation of the Second Amendment right to keep and bear arms.

Area of Law: Constitutional Law; Second Amendment; Fourteenth Amendment; Equal Protection Clause

Issue Presented: Whether the County of Alameda violated the plaintiff-appellant's fundamental rights under the Fourteenth Amendment's Equal Protection Clause and the Second Amendment's right to keep and bear arms when the County denied a "conditional use permit" to a prospective gun store operator.

Brief Summary:

Plaintiff-Appellant decided to open a retail firearm business selling firearms, ammunition and gun-related equipment in Alameda County. The plaintiff-appellant was granted and then denied a "conditional use permit" after the County held that the plaintiff-appellant had not satisfied a 500-foot requirement found in its Ordinance. The Ordinance required that the proposed location of the business not be within 500 feet of a "residentially zoned district" and found the proposed retail firearm business was approximately 446 feet from the nearest disqualifying property. The plaintiff-appellant claimed that as a result of the Ordinance, there were no parcels in Alameda County which would have been available for firearm retail stores, and thus amounted to an unconstitutional ban.
The plaintiff-appellant filed a claim under the Fourteenth Amendment Equal Protection clause and the Second Amendment right to keep and bear arms. The district court granted a motion to dismiss and the plaintiff-appellant appealed the decision.
The Ninth Circuit panel concluded that since the right to keep and bear arms is an enumerated fundamental right, the matter was more appropriately analyzed under the Second Amendment and not under the Equal Protection Clause. Thus, the Ninth Circuit panel affirmed the dismissal of the Equal Protection claims.
As for the Second Amendment claims, the Ninth Circuit panel applied a two-step inquiry to determine whether there was an unconstitutional violation. The two-step inquiry first required the determination as to whether the challenged law burdened conduct protected by the Second Amendment; and the second step was to identify and apply the proper standard of review. The Ninth Circuit panel held that "one cannot keep arms when the state prevents him from purchasing them" and therefore, concluded the Ordinance burdened conduct protected by the Second Amendment when it prohibited the sale of firearms. The Ninth Circuit panel applied another two-step analysis to determine the appropriate standard of review and concluded intermediate scrutiny was proper.
In applying the intermediate scrutiny analysis the Ninth Circuit panel held that although the district court properly identified some interests that were "significant, substantial or important," the County had failed to meet its burden of demonstrating that there was "a reasonable fit between the challenged regulation and the asserted objective." Thus, the Ninth Circuit panel held that the County had not satisfied the intermediate scrutiny standard of review.

Significance: The Ninth Circuit panel established manner in which to ascertain the appropriate standard of scrutiny for Second Amendment challenges and upheld the right to own a gun retail store.

Extended Summary:
Plaintiff-Appellant, John Teixeira ("Teixeira") and his business partners decided to open a retail firearm business selling firearms, ammunition and gun-related equipment in Alameda County ("County").
In order to obtain "Conditional Use Permits" the County issued an Ordinance that required the County to determine whether there was (1) a "public need" for the business and (2) whether the business will "adversely affect the health or safety of persons residing or working in the vicinity," and (3) whether the business would be detrimental to the public welfare. Additionally, the County specifically required that a retail firearm applicant also prove (1) it possessed the requisite state and federal licenses, (2) it would store firearms and ammunition lawfully, and (3) the proposed location of the business was not within 500 feet of a "residentially zoned district; elementary, middle, or high school; pre-school or daycare center; other firearm sales businesses or liquor stores." The 500-foot distance was "to be measured from the closest door of the proposed business location to the front door of any disqualifying property." Teixeira measured the distance and found the nearest disqualifying property was 532 feet away.
The County Planning Department issued a report stating that Teixeira had satisfied the requirements, but concluded that a "zoning variance" would be required because the proposed location was within 500 feet of a residential property, and therefore failed to qualify for a permit. The report recommended denying the "zoning variance" because the measured distance between the exterior wall of the new business and the property line of the nearest residential property was 446 feet apart.
The West County Board of Zoning Adjustment scheduled a public hearing and voted to grant the variance and issued the permit. The San Lorenzo Village Homes Association challenged the decision and the Alameda County Board of Supervisors revoked the permit.
Teixeira challenged the revocation in the district court arguing that the Ordinance violated his right to due process; denied him equal protection and was impermissible under the Second Amendment both facially and as applied. The County moved to dismiss arguing the Equal Protection claims failed to state sufficient facts and the regulations governing the sale of firearms were presumptively valid under the Second Amendment. The district court granted the motion to dismiss and Teixeira appealed.
In order to succeed under the Equal Protection Clause claims, the Ninth Circuit panel held that Teixeira must allege he was "denied a fundamental right while others were permitted to exercise such right." The Ninth Circuit panel held that this is not a situation where one group is being denied a right while another is not. The Ninth Circuit panel then concluded that since the right to keep and bear arms is an enumerated fundamental right, the matter was more appropriately analyzed under the Second Amendment. Thus, the Ninth Circuit panel affirmed the dismissal of the Equal Protection claims.
As for the Second Amendment claims, the Ninth Circuit panel upheld the fundamental understanding that "the right of the people to keep and bear arms, shall not be infringed." To determine whether the Ordinance violated the Second Amendment right, the Ninth Circuit panel employed a two-step inquiry. The first step was determining whether the challenged law burdened conduct protected by the Second Amendment. The second step was to identify and apply the appropriate standard of review.
Regarding the first step, the Ninth Circuit panel determined the only way to establish whether the challenged law burdened conduct protected by the Second Amendment was by reviewing the historical understanding of the scope of the right. The Ninth Circuit panel held that the historical record shows, and that American have continued to believe, that the right to keep and bear arms includes the freedom to purchase and sell weapons. The Ninth Circuit panel concluded that "[o]ne cannot truly enjoy a constitutionally protected right when the State is permitted to snuff out the means by which he exercises it; one cannot keep arms when the state prevents him from purchasing them." Therefore, the Ninth Circuit panel held that the law burdened conduct protected by the Second Amendment by prohibiting the sale of firearms.
The second step in the inquiry was to identify and apply the proper standard of review. The County argued that the standard of review was the rational basis review. However, the Ninth Circuit panel held a heightened standard of review was more appropriate and identified another two-step analysis in ascertaining the appropriate level of scrutiny in Second Amendment claims. The two-step analysis considered "(1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law's burden on the right." The Ninth Circuit panel held "there is no question that an ordinance restricting the commercial sale of firearms would burden 'the right of a law-abiding, responsible citizen to possess and carry a weapon'" and therefore concluded that "such a regulation comes close to the core of the Second Amendment right." As for the severity of the law's burden, the district court had found that the Ordinance merely regulated the gun stores and did not ban them. However, Teixeira alleged that as a result of the 500-foot rule, there were no parcels in Alameda County which would have been available for firearm retail stores, and thus amounted to a complete ban. The Ninth Circuit panel suggested that if Teixeira had been given a chance to prove the ordinance was a total ban, it would have warranted a "strict scrutiny" standard of review. However, because Teixeira alleged that the Ordinance's 500-foot requirement was unconstitutional on its face, the Ninth Circuit panel applied "intermediate scrutiny" standard of review.
The Ninth Circuit panel then applied the intermediate scrutiny standard of review and held that the district court properly identified some interests that were "significant, substantial or important." However, the panel concluded the County had the burden to demonstrate that there was "a reasonable fit between the challenged regulation and the asserted objective" and the district court failed to explain how a gun store would increase crime in the vicinity and how a gun store might negatively impact the aesthetics of the neighborhood. Therefore, the Ninth Circuit panel held that the County failed to carry such burden and the intermediate scrutiny standard was not satisfied. Therefore, the Ninth Circuit panel reversed the motion to dismiss as to the Second Amendment claims and remanded the matter to the district court.

Panel: Diarmuid F. O'Scannlain, Barry G. Silverman, Carlos T. Bea, Circuit Judges, and William Horsley Orrick III, District Judge.

Argument Date: December 8, 2015

Date of Issued Opinion: May 16, 2016

Docket Number: 13-17132

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

Case Alert Author: Kristina Coronado

Counsel: Donald E. J. Kilmer, Jr. (argued) and Charles W. Hokanson, for Plaintiffs-Appellants.

Scott J. Feudale, County Counsel, Alameda County, California (argued), Donna R. Zeigler, County Counsel, and Mary Ellyn Gormley, Assistant County Counsel for Defendants-Appellees.

Alan Gura, Gura & Possessky, PLLC, on behalf of the Citizens Committee for the Right to Kepp and Bear Arms in support of Plaintiffs-Appellants.

Arent Fox LLP, on behalf of Law Center to Prevent Gun Violence and Youth Alive! in support of the Defendant-Appellees.

Author of Opinion:
Diarmuid F. O'Scannlain, Circuit Judge

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/07/2016 01:15 PM     9th Circuit     Comments (0)  

  Facebook v. Vachani - Ninth Circuit
Headline: Computer Fraud and Abuse Act of 1986 ("CFAA") was not violated when Power accessed Facebook, Inc.'s ("Facebook") computers, knowing that Power was not authorized to do so.

Areas of Law:[/B] Privacy Law, Electronic Communication Law, Evidence, Torts

Issues Presented:

Whether the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM Act"), 15 U.S.C. §§ 7701-7713, was violated by either: (1) external emails sent when Power Ventures, Inc. ("Power") caused a Facebook event to be created or (2) internal Facebook messages authored by Power that Power users transmitted to their Facebook friends.

Whether the Computer Fraud and Abuse Act of 1986 ("CFAA"), 18 U.S.C. § 1030 et. seq., was violated when Power accessed Facebook, Inc.'s ("Facebook") computers, knowing that Power was not authorized to do so.

Whether Cal. Penal Code § 502 was violated when Power accessed Facebook's computers, knowing that Power was not authorized to do so.

Brief Summary: Now defunct social networking company, Power Ventures, Inc. ("Power"), engaged in a promotional campaign wherein Power accessed Facebook, Inc.'s ("Facebook") user data and initiated electronic messages promoting Power's website. While Power initially had implied permission to do so from Facebook through Facebook's users, Facebook later expressly revoked said permission via a cease and desist letter to Power. Notwithstanding Facebook's cease and desist letter, Power continued its unauthorized promotional campaign, thereby resulting in Facebook bringing suit for violations of the CAN-SPAM Act, the CFAA, and Cal. Penal Code § 502.

Following entry of summary judgment against Power on all three claims, Power appealed on three issues: (1) whether the CAN-SPAM Act, was violated by either (a) external emails sent when Power caused a Facebook event to be created or (b) internal Facebook messages authored by Power that Power users transmitted to their Facebook friends; (2) whether the CFAA was violated when Power accessed Facebook's computers, knowing that Power was not authorized to do so; and (3) whether Cal. Penal Code § 502 was violated when Power accessed Facebook's computers, knowing that Power was not authorized to do so.

The Ninth Circuit panel thereafter found that: (1) the CAN-SPAM Act was not violated by external emails sent when Power caused a Facebook event to be created because multiple parties initiated the disputed messages and the "from" line accurately identified a person who initiated the disputed messages and a Power user consented to share Power's promotion through an event invitation; (2) the CAN-SPAM Act was not violated by internal Facebook messages by power that Power users transmitted to their Facebook friends because the body of the messages included Power's identity and a link to Power's website and Facebook users who were identified as the senders authorized the sending of the messages; (3) the CFAA and Cal. Penal Code § 502 were violated when a party accesses a computer where there is no permission to do so or where such permission has been explicitly revoked; and (4) the CFAA is not violated merely by violating a website's terms of use alone.

Significance: The Ninth Circuit panel establishes that: (1) the CAN-SPAM Act was not violated by external emails sent when Power caused a Facebook event to be created because multiple parties initiated the disputed messages and the "from" line accurately identified a person who initiated the disputed messages and a Power user consented to share Power's promotion through an event invitation; (2) the CAN-SPAM Act was not violated by internal Facebook messages by Power that Power users transmitted to their Facebook friends because the body of the messages included Power's identity and a link to Power's website and Facebook users who were identified as the senders authorized the sending of the messages; (3) the CFAA and Cal. Penal Code § 502 were violated when a party accesses a computer where there is no permission to do so or where such permission has been explicitly revoked; and (4) the CFAA is not violated merely by violating a website's terms of use alone.

Extended Summary: Power was a social networking website where individuals who already used other social networking websites could log on to Power.com and create an account. Power would thereafter aggregate the user's social networking information from various social networking websites on a single page thereby enabling the user to keep track of a variety of social networking friends through a single program. Facebook also operates a social networking website, Facebook.com, where users must register and agree to Facebook's terms of use before website access is granted. Once registered, a Facebook user can create and customize their profile by adding personal information, photographs, or other content.

In general, a non-Facebook user is not allowed to use Facebook.com to send messages, post photographs, or otherwise contact Facebook users through their profiles. Rather, Facebook requires non-Facebook users that want to contact Facebook users through Facebook.com to enroll in a program called "Facebook Connect," whereby these third parties are required to register with Facebook and agree to a separate Developer Terms of Use Agreement.

In December 2008, Power initiated a promotional campaign to attract more traffic to Power.com. In hopes of attracting Facebook users, Power placed an icon on Power.com that read, "[f]irst 100 people who bring 100 new friends to Power.com win $100." A button in the icon included the words, "[y]es I do!" and if a user clicked the button, then Power would create an entry on the user's Facebook profile in the form of an event, photo, or status. In many instances, Power either caused a message to be transmitted to the user's "friends" within Facebook's system or, depending on the user's Facebook settings, caused Facebook itself to generate an email message.

Facebook became aware of Power's promotional campaign on December 1, 2008, and on that same date, Facebook sent a cease and desist letter to Power, thereby instructing Power to cease its promotional campaign. Power also declined to sign Facebook's Developer Terms of Use Agreement and enroll in Facebook Connect. In an attempt to prevent Power from continuing its promotional campaign, Facebook instituted an Internet Protocol ("IP") block, but Power circumvented Facebook's efforts by switching IP addresses. Through this period, Power continued its promotional campaign, notwithstanding that Power knew that it took, copied, or made use of Facebook.com data without Facebook's permission to do so.

Facebook thereafter sued Power in district court, alleging violations of the CAN-SPAM Act, the CFAA, and Cal. Penal Code § 502 and moved for summary judgment. The district court found in favor of Facebook on all three claims and similarly denied Power's motion for reconsideration.

Power thereafter raised three issues on appeal: (1) whether the CAN-SPAM Act, was violated by either (a) external emails sent when Power caused a Facebook event to be created or (b) internal Facebook messages authored by Power that Power users transmitted to their Facebook friends; (2) whether the CFAA was violated when Power accessed Facebook's computers, knowing that Power was not authorized to do so; and (3) whether Cal. Penal Code § 502 was violated when Power accessed Facebook's computers, knowing that Power was not authorized to do so.

On the first issue, the Ninth Circuit panel first noted that for a message to violate the CAN-SPAM Act, it must be "materially misleading" or "materially false." 15 U.S.C. § 7704(a)(1). Under 15 U.S.C. § 7704(a)(6), "materially," when used in the context of false or misleading header information, includes the:

alteration or concealment of header information that would impair the ability of an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation, or the ability of a recipient of the message to respond to a person who initiated the electronic message.

Moreover, a "from" line that "accurately identifies any person who initiated the message shall not be considered materially false or materially misleading." 15 U.S.C. § 7704(a)(1)(B). In addition, "header information that is technically accurate but includes an originating electronic mail address, domain name, or Internet Protocol address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses or representations" is considered to be "materially misleading." 15 U.S.C. § 7704(a)(1)(A).

The Ninth Circuit panel then identified two types of message that could rise to the level of "materially misleading" under the CAN-SPAM Act: (1) external emails sent when Power Ventures, Inc. ("Power") caused a Facebook event to be created and (2) internal Facebook messages authored by Power that Power users transmitted to their Facebook friends.

As to the external emails, the Ninth Circuit panel took note of the fact that the "from" line of the emails identified Facebook as the sender, that the body of the email was signed "Thanks, The Facebook Team," and that the header stated that a friend of the recipient invited the user to an event entitled "Bring 100 friends and win 100 bucks." Because the CAN-SPAM Act provides that a "from" line that accurately identifies a person who initiated the message is not "misleading" (see 15 U.S.C. § 7704(a)(1)(B)), the Ninth Circuit panel found it relevant whether Facebook "initiated" the messages. The CAN-SPAM Act defines "initiate" to mean "to originate or transmit such message or to procure the origination or transmission of such message, but shall not include actions that constitute routine conveyance of such message.," and importantly, more than one person may be considered to have initiated the message. 15 U.S.C. § 7702(9).

The Ninth Circuit panel then reasoned that because: (1) a Power user granted Power permission to share the promotion, (2) Power accessed that user's Facebook data after receiving such permission, (3) Facebook created and caused form emails to be sent to recipients, that these actions all required some affirmative consent or some creative license, and (4) the CAN-SPAM Act expressly provides that more than one person may be considered to have initiated the message, Power's users, Power, and Facebook all initiated the disputed messages and the "from" line was therefore not misleading within the meaning of the CAN-SPAM Act.

On balance, the Ninth Circuit panel acknowledged that although the CAN-SPAM Act includes as materially misleading, a technically accurate header that includes information accessed through false or fraudulent pretenses or representations, Power users consented to Power's access of their Facebook data and permitted Power to share its promotional campaign through event invitations. As such, the Ninth Circuit panel held that Power did not use false pretenses or fraudulent representations to obtain consent from users and that the external messages were therefore not "materially misleading" within meaning of the CAN-SPAM Act.

In regards to the internal messages sent within Facebook's system, the Ninth Circuit panel noted that the messages could only be deemed "misleading" if they impaired the ability of the recipient to "respond to a person who initiated the electronic mail message" or the ability of Facebook to locate the initiator of the message. 15 U.S.C. § 7704(a)(6). Under this standard, the Ninth Circuit panel held that the disputed messages were not misleading because: (1) the body of the messages included Power's identity and a link to Power.com and (2) Facebook users who were identified as the senders did in fact authorize the sending of the messages.

As such, on the issue of whether the external emails or internal emails violated the CAN-SPAM Act, the Ninth Circuit panel held that Power did not violate the CAN-SPAM Act, reversed the district court's entry of summary judgment, and remanded for entry of judgment in favor of Power.

On the second issue of whether the CFAA was violated when Power accessed Facebook's computers knowing that Power was not authorized to do so, the Ninth Circuit panel noted that under the CFAA there are two ways of committing a crime of improperly accessing a protected computer: "(1) obtaining access without authorization; and (2) obtaining access with authorization, but then using that access improperly." Musaccio v. United States, 136 S.Ct. 709, 713 (2016). Following the precedent of LVRC Holdings LCC v. Brekka, 581 F.3d 1127 (9th Cir. 2009) and United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), respectively, the Ninth Circuit panel further distilled two general rules in analyzing authorization under the CFAA: (1) a defendant can violate the CFAA when he or she lacks permission to access a computer or where permission has been explicitly revoked and (2) merely violating a website's terms of use alone cannot be the basis for liability under the CFAA.

Under these standards, the Ninth Circuit panel reasoned that initially, Power users impliedly gave Power permission to use Facebook's computers to distribute messages because it was reasonable that Power could have construed that consent from Facebook's users to share Power's promotional campaign was permission for Power to access Facebook's computers. However, once Facebook issued its cease and desist letter to Power, Facebook expressly revoked any such permission. Moreover, Facebook further solidified its revocation of any implied permission to access its computers by imposing IP blocks in an effort to prevent Power from accessing Facebook's computers.

Equally important to the Ninth Circuit panel was the fact that Power admitted during discovery that it had continued to take, copy, and make use of data from Facebook's website notwithstanding clearly and unequivocally knowing that Power was expressly forbidden from using or accessing Facebook's data. Internal Power emails similarly showed that Power's officers and executives acknowledge engaging in various prohibited activities without Facebook's permission.

Based on these facts, the Ninth Circuit panel held that Power's admissions showed that: (1) Power deliberately disregarded the case and desist letter; (2) Power accessed Facebook's computers without authorization to do so; and (3) Power circumvented IP barriers to access Facebook's computers notwithstanding lacking authorization to do so. As such, the Ninth Circuit panel affirmed the district court's finding that Power had violated the CFAA because Power accessed Facebook's computers "without authorization" and was thereby liable under the CFAA.

On the third and final issue of whether Cal. Penal Code § 502 was violated when Power accessed Facebook's computers knowing that Power was not authorized to do so, the Ninth Circuit panel noted liability exists under Cal. Penal Code § 502 merely by knowingly accessing a computer system or computer network. United States v. Christensen, 801 F.3d 970, 994 (2015).

As in its CFAA analysis, the Ninth Circuit panel noted that Power had implied authorization to access Facebook's computers and that no violation of Cal. Penal Code § 502 occurred until Facebook sent its cease and desist letter to Power, at which time Power - concededly - knew that it no longer had any permission whatsoever to access Facebook's computers. By continuing to knowingly accessing Facebook's computers and taking, copying, and making use of Facebook's date, the Ninth Circuit panel held that Power violated Cal. Penal Code § 502 and thereby affirmed the district court's finding.

To read the full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/12/13-17102.pdf

Panel: Susan P. Graber, Kim McLane Wardlaw, and Mary H. Murguia, Circuit Judges

Argument Date: December 9, 2015

Date of Issued Opinion: July 12, 2016

Docket Number: 13-17102

Decided: Reversed in part, vacated in part, affirmed in part, and remanded

Case Alert Author: Ryan Arakawa

Counsel:
Amy Sommer Anderson (argued), Aroplex Law, San Francisco, California; Steven Vachani (argued pro se), Berkeley, California, for Defendants-Appellants.

Eric A. Shumsky (argued), Orrick, Herrington & Stucliffe LLP, Washington, D.C.; I. Neel Chatterjee, Monte Cooper, Brian P. Goldman, and Robert L. Uriarte, Orrick, Herrington & Sutcliffe LLP, Menlo Park, California, for Plaintiff-Appellee.

Jamie L. Williams (argued), Hanni M. Fakhoury, and Cindy A. Cohn, Electronic Frontier Foundation, San Francisco, California, as and for Amicus Curiae.

Author of Opinion: Judge Susan P. Graber

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/07/2016 01:12 PM     9th Circuit     Comments (0)  

September 2, 2016
  National Collegiate Athletic Association v. Governor of the State of New Jersey - Third Circuit
Headline: New Jersey Law Repealing Sports Gambling Prohibitions in Casinos and Racetracks Violates the Professional and Amateur Sports Protection Act of 1992

Area of Law: Constitutional Law, Gaming

Issue(s) Presented: Whether SB 2460, enacted by the New Jersey Legislature to partially repeal certain prohibitions on sports gambling, violates PASPA? Whether PASPA unconstitutionally commandeers the states?

Brief Summary: In 1992 Congress passed the Professional and Amateur Sports Protection Act of 1992 ("PASPA") to prohibit state authorized sports gambling. Congress included in the law an exception for New Jersey, but only if the State enacted a sports gambling scheme within one year of PASPA's enactment. New Jersey failed to do so. In 2014, the New Jersey Legislature passed SB 2460, repealing any existing prohibitions on sports gambling in casinos and racetracks. The NCAA and various professional sports leagues filed suit to enjoin New Jersey from enacting the law. New Jersey argued that SB 2460 did not violate PASPA because it was a repeal of existing prohibitions of sports gambling, not an authorization of such. The State further argued that PASPA was unconstitutionally commandeering the states by forcing states into a binary choice between a complete repeal of existing laws or a complete ban on sports gambling. The Third Circuit rejected New Jersey's arguments, concluding that despite New Jersey's use of "repeal" the law selectively authorizes sports gambling in casinos and racetracks across the state. Additionally, PASPA does not unconstitutionally commandeer the states because it does not create a coerced binary choice between a total repeal or total ban. The fact that New Jersey's partial repeal was ruled to violate PASPA does not exclude the chance that other partial repeals may be deemed satisfactory under the federal law.

Extended Summary: In 1992 Congress passed the Professional and Amateur Sports Protection Act of 1992 ("PASPA") to prohibit state authorized sports gambling. Congress included in the law an exception for New Jersey, but only if the State enacted a sports gambling scheme within one year of PASPA's enactment. New Jersey failed to do so. In 2011, after a statewide referendum, the New Jersey Legislature amended the state constitution to permit sports gambling. In 2012, after voters approved the constitutional amendment, the New Jersey Legislature enacted the Sports Wagering Act, which provided for state authorized and regulated sports wagering in casinos and racetracks. In response, the NCAA, NFL, NBA, NHL, and MLB ("the Leagues") sued to enjoin the 2012 law. Before the Third Circuit, New Jersey challenged PASPA as unconstitutional under the anti-commandeering doctrine because it prohibited the repeal of New Jersey's sports gambling prohibitions. The Court rejected this argument, reasoning that PASPA did not require that the states keep any law in place, but it only prohibited affirmative authorization of gambling schemes by states.

Undeterred, the New Jersey Legislature passed SB 2460 in 2014. The law did not affirmatively authorize sports wagering, but repealed any existing prohibitions on the practice insofar as they apply to casinos, gambling houses, or horse racetracks in the state. SB 2460 also limited sports gambling to those over the age of 21 and prohibited placing bets on New Jersey collegiate teams or collegiate competitions taking place in the state. The Leagues again filed suit, this time to enjoin SB 2460. New Jersey argued that SB 2460 does not violate PASPA and is consistent with the ruling in Christie I because the law is a repeal and not an affirmative authorization. The Leagues argued in opposition that SB2460 is actually an authorization of sports gambling cleverly disguised as a repeal. The Third Circuit agreed.

In reviewing the relevant arguments and laws, the Third Circuit provided three distinct reasons that SB 2460 violated PASPA. First, SB 2460 effectively authorized sports gambling at casinos and racetracks, while other laws prohibit such a practice at other establishments. New Jersey has numerous laws in place that prohibit sports gambling throughout the state including at casinos and racetracks. Since sports gambling is undoubtedly illegal throughout the State, the enactment of SB 2460 allows an activity that would otherwise be prohibited and, thus, is an authorization in violation of PASPA.

Second, the Third Circuit reasoned that SB 2460 violated PASPA by selectively dictating where sports gambling may occur, who can place those bets, and which contests are permissible to bet on. Under SB 2460, New Jersey removed sports gambling prohibitions from casinos, gambling houses, and horse racetracks provided the bettors are over the age of 21 and no wagers are placed on New Jersey collegiate teams or collegiate competitions to take place in New Jersey. Using the Black's Law Dictionary definition of authorize, "to empower; to give a right or authority to act," the Third Circuit concluded that SB 2460 empowers casinos, racetracks and persons to conduct practices that other businesses and people cannot. This constitutes permission or authorization in violation of PASPA. New Jersey argued that SB 2460 is simply a repeal not an authorization, which the Third Circuit rejected by reasoning that merely because the state law is couched as a repeal does not stop the Court from examining what the law actually does - selectively authorize sports gambling at casinos and racetracks for certain persons.

Third, the exception in PASPA for New Jersey, which the State did not take advantage of, indicates that Congress perceived sports gambling in New Jersey to violate PASPA. The Third Circuit emphasized that statutory provisions will not be read as surplusage. Thus, if Congress did not believe sports gambling in New Jersey would violate PASPA then it would not have needed to include the New Jersey exception in the federal law.

Finally, the Third Circuit addressed New Jersey's contention that PASPA unconstitutionally commandeers the states. New Jersey claimed that Christie I held that PASPA is constitutional because it allows States to choose not to prohibit sports wagering, even if authorizing it is prohibited. The Third Circuit explained that despite its determination that SB 2460's selective repeal of certain prohibitions amounts to authorization under PASPA, it does not mean that states cannot create their own partial repeals that are acceptable under PASPA. The Court did not state where the line should be drawn for when partial repeals amount to authorization, but simply concluded that SB 2460 crossed it. Thus, since PASPA does not force a coercive binary choice or an affirmative adoption of federal law, it does not unconstitutionally commandeer the states.

A copy of the court's decision can be found here: http://www2.ca3.uscourts.gov/opinarch/144546p1.pdf


Panel: Ambro, Fuentes, Smith, Fisher, Jordan, Hardiman, Greenaway Jr., Vanaskie, Krause, Restrepo, Rendell, and Barry, Circuit Judges

Argument Date: February 17, 2016

Date of Issued Opinion: August 9, 2016

Docket Number:14-4546, 14-4568, 14-4569

Decided: Affirmed.

Case Alert Author: David A. Rosenfeld

Counsel: John J. Hoffman, Esq., Jeffrey S. Jacobson, Esq., Stuart M. Feinblatt, Esq., Peter M. Slocum, Esq., Matthew M. Hoffman, Esq., Ashley E. Johnson, Esq., Theodore B. Olson, Esq., Matthew D. McGill, Esq., Counsel for Appellants Governor of the State of New Jersey; Elliott M. Berman, Esq., Ronald J. Riccio, Esq., Edward A. Harnett, Esq., Counsel for Appellant New Jersey Thoroughbred Horsemen's Association; Michael R. Griffenger, Esq., Counsel for Appellants Stephen M. Sweeney and Vincent Prieto; Paul D. Clement, Esq., Erin Murphy, Esq., Jeffrey A. Mishkin, Esq., Anthony J. Dreyer, Esq., William J. O'Shaunghnessy, Esq., Richard Hernandez, Esq., Counsel for Appellees NCAA, NBA, NFL, NHL, and MLB.

Author of Opinion: Circuit Judge Rendell

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/02/2016 12:18 PM     3rd Circuit     Comments (0)  

  NAACP v. City of Phila - Third Circuit
Headline: Third Circuit Holds City of Philadelphia's Policy, Which Blocked NAACP's Non-Commercial Ad at Airport, Is Unreasonable under First Amendment

Area of Law: First Amendment

Issue(s) Presented: Is a city's policy, preventing private advertisers from displaying non-commercial content at an airport owned by the city, a permissible use of governmental power under the First Amendment? 

Brief Summary:
In January 2011, the NAACP submitted an ad for display at city-owned Philadelphia airport that read: "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners." The City, in line with a policy of banning non-commercial ads at the Airport, rejected the submission. The NAACP filed a lawsuit and claimed the policy violated the First Amendment.
Though the City cited revenue maximization and controversy avoidance as purposes behind the ban, the Third Circuit found that neither of these purposes could render the ban on non-commercial speech in a limited public forum constitutionally reasonable. Particularly fatal to the City's case was the deposition testimony of an airport deputy director, who testified that the ban could in fact cause the airport to lose money and that it did not have anything to do with maintaining neutrality. Thus, the Third Circuit found the ban on non-commercial ads at the Airport unreasonable under the First Amendment.

Extended Summary:
In January 2011, the NAACP submitted an ad for display at the Philadelphia International Airport (PHL), which read: "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners. Let's build a better America together. NAACP.org/smartandsafe." The City of Philadelphia, which owns PHL, rejected the submission based on an informal practice of only accepting ads that promoted commercial transactions. In October 2011, the NAACP filed a lawsuit and claimed the City's rejection of its ad violated the First Amendment. In March 2012, while the lawsuit was pending, the City adopted a written policy, which provides that ads that do not "propose a commercial transaction" cannot be approved.
The City argued that its ban on non-commercial content maximized revenue and avoided controversy. The City cited commercial advertisers not wanting their content next to divisive messages about social issues, and exposing travelers to content they may find offensive, as reasons behind the ban.
Though the City pointed to revenue maximization as one of the reasons behind the written policy, an airport director testified that he believed that the NAACP's ad would not cost PHL revenue and that the written policy had nothing to do with revenue. He even suggested that the policy could cost the city money if it forced PHL to turn away advertisers. As to the City's controversy-avoidance rationale, he testified he had no reason to believe the policy related to maintaining neutral positions for the City on issues of non-commercial speech. He further testified that the policy did not involve the City avoiding picking favorites or imposing on captive audiences. He conceded the policy "may" have something to do with avoiding offending travelers. The director testified that PHL management strives to create in the airport a soothing and pleasing environment for often-stressed travelers.
Because the City's policy affected fundamental First Amendment rights, the Third Circuit shifted the burden of proof onto the City. To satisfy the burden, the City had to show its ban on non-commercial content in the limited public forum of PHL advertising was reasonable either through evidence in the record or by commonsense inferences.
The Third Circuit found the City could not meet its burden. Emphasizing that the record clearly contrasted with inferences the City wished the Court to draw, the Court stated that it could not even make a commonsense inference in favor of the City on revenue maximization. As to controversy avoidance, the Court again found the record lacking in supporting evidence. The Third Circuit further pointed to the Supreme Court's caution against inferring controversy avoidance as a legitimate purpose for restricting First Amendment rights when such a purpose can be used to conceal bias against certain viewpoints. The Court ultimately concluded that the City's ban on non-commercial ads at PHL was unreasonable under the First Amendment.


The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151002p.pdf .

Panel: McKee, Chief Judge, Ambro, and Hardiman, Circuit Judges 

Argument Date: October 8, 2015

Date of Issued Opinion: August 23, 2016

Docket Number: No. 15-1002

Decided: Affirmed

Case Alert Author: Rebecca Daily

Counsel: Shelley R. Smith, Elise M. Bruhl, Craig R. Gottlieb, Counsel for Appellant; Laura Kessler, Fred T. Magaziner, Catherine V. Wigglesworth, Mary Catherine Roper, Seth F. Kreimer, Counsel for Appellee. 

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/02/2016 12:14 PM     3rd Circuit     Comments (0)  

September 1, 2016
  Alberts v. Royal Caribbean Cruises, Ltd.- 11th Circuit
Headline: Eleventh Circuit finds that a seaman's work traveling to or from a foreign country constitutes "performance . . . abroad" under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("Convention").

Area of Law: Arbitration/Maritime Law.

Issue: Whether a seaman's work traveling to or from foreign countries constitutes "performance . . . abroad" under the Convention.

Extended Summary: Robert Alberts ("Alberts"), a United States citizen, worked as the lead trumpeter on a Royal Caribbean, Ltd. ("Royal Caribbean") passenger cruise ship. His two employment agreements with Royal Caribbean contained the same arbitration clause, requiring all disputes to be resolved exclusively through binding arbitration pursuant to the Convention. After becoming ill, Alberts sued Royal Caribbean under various causes of action based on the alleged failure to provide him with an adequate medical exam and attend to his complaints. The district court granted Royal Caribbean's motion to compel arbitration. In affirming, the Eleventh Circuit initially found that Albert's employment agreements satisfied three of the four jurisdictional requirements to compel arbitration under the Convention. The court's opinion focused on the fourth requirement, whether the contract "envisage[d] performance . . . abroad." Deciding an issue of first impression, the Eleventh Circuit concluded that performance abroad included a seaman's work traveling to or from a foreign country. The court also found that based on this definition, "performance . . . abroad" had a reasonable relation with a foreign state and the arbitration clause was enforceable.

To view the full opinion: Text

Panel: William Pryor, Jill Pryor, and Richard L. Voorhees (United States District Judge for the Western District of North Carolina, sitting by designation).

Argument: July 13, 2016

Date of Issued Opinion: August 23, 2016

Docket Number: 15-14775

Decided: Affirmed

Case Alert Author: Marina Gonzalez and Martha Ferral

Counsel:
Phillip Parrish for Appellant Robert Alberts
James Norford Hurley for Appellee Royal Caribbean Cruises, Ltd.

Author of Opinion: Circuit Judge William Pryor

    Posted By: Gary Kravitz @ 09/01/2016 02:06 PM     11th Circuit     Comments (0)  

  In Re: Al-Nashiri
Headline: Divided D.C. Circuit allows military commission trial of U.S.S. Cole mastermind to proceed.

Area of Law: Military Commissions Act

Issue Presented: Whether a Guantanamo detainee can make a pre-trial challenge to a military commission's authority to hear his case under the Military Commissions Act (MCA) on the basis that his crimes were not associated with hostilities.

Brief Summary: Abd Al-Rahim Hussein Muhammed Al-Nashiri, a Saudi national, is accused of orchestrating the bombing of the U.S.S. Cole in 2000, the attempted bombing of the U.S.S. The Sullivans in 2000, and the bombing of French supertanker M/V Limburg in 2002. Al-Nashiri has been in U.S. custody since 2002 and detained at the Guantanamo Bay, Cuba naval base since 2006. He has brought several challenges to his detention and the military commission proceedings against him. See In re Al-Nashiri, 791 F.3d 71 (2015).

In the present case, Al-Nashiri challenged the authority of the commission to hear his case. The MCA provides that military commissions have jurisdiction to try "alien unprivileged enemy belligerent[s]," id. § 948c, for "any offense made punishable" by the MCA, "whether such offense was committed before, on, or after September 11, 2001." Id. § 948d. The statute then lists 32 offenses that are "triable by military commission," id. § 950t, and provides that "[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities." Id. § 950p(c). Al-Nashiri asserted that the military commission had no jurisdiction over him because his offenses were not "committed in the context of or associated with hostilities." He raised that argument unsuccessfully in a motion to dismiss before the commission in 2012. In 2014, he sought a habeas corpus petition asking the U.S. District Court for the District of Columbia to enjoin his military commission trial and enter a declaratory judgment that his conduct did not occur in the context of hostilities. He also sought a preliminary injunction staying the commission trial pending the outcome of the habeas petition. The district court, relying on the abstention principles established in Schlesinger v. Councilman, 420 U.S. 738 (1975), denied the petition, finding that ruling on Al-Nashiri's claim would unduly interfere with the proceedings of the military commission. Al-Nashiri appealed and also petitioned the U.S. Court of Appeals for the District of Columbia Circuit for a writ of mandamus to dissolve the military commission.

A divided panel of the D.C. Circuit denied both petitions, concluding that Councilman was the appropriate abstention standard. That case extended the doctrine of abstention - that federal courts should not enjoin state criminal proceedings as long as the defendant has an adequate legal remedy in the form of a trial and a direct appeal - to courts-martial, holding that although the "peculiar demands of federalism" that underpin the careful balance between the power of state and federal courts were not applicable to courts-martial, "factors equally compelling" justified allowing courts-martial to run their course without interference from federal courts. Applying Councilman, the D.C. Circuit concluded that the military commission trial should proceed as long as 1) the system enacted by the MCA to adjudicate Al-Nashiri's guilt would adequately protect his rights and 2) an "important countervailing interest" justified the decision to avoid the district court adjudicating a pretrial challenge to the military commission's subject matter jurisdiction.

The panel rejected Al-Nashiri's argument, based on Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the Councilman standard was inapplicable to military commissions. In Hamdan, the U.S. Supreme Court concluded that Ex parte Quirin, 317 U.S. 1 (1942), rather than Councilman, was the appropriate abstention standard for a pre-MCA military commission, citing concerns about the fairness of the commission process, which was neither part of the integrated system of military courts nor sufficiently similar to state courts to justify abstention on comity principles. The Hamdan court also found that the "important countervailing interest" in military discipline and the efficient operation of the armed forces was not present, as Hamdan was not a member of the U.S. military and no other such interest had been identified.

The majority, while acknowledging that Al-Nashiri, like Hamdan, was indisputably not a member of the armed forces, determined that "much has changed since Hamdan" and that both Councilman criteria had been met in the present case. It concluded that the review process established by the MCA, enacted by Congress explicitly to address the fairness concerns identified in Hamdan, would adequately protect Al-Nashiri's rights because it was virtually identical to the review system for courts-martial at issue in Councilman. While the majority conceded that the evidentiary and procedural rules for military commission trials differed from those for courts-martial, it determined that they still included a number of significant safeguards, and it noted that Al-Nashiri would ultimately have the right to appeal to an Article III court, a protection not afforded in a court-martial.

Turning to the countervailing interest, the majority found that in creating the MCA process, Congress and the President had made a judgment that national security concerns were not served by using ordinary federal court processes to try certain "enemy belligerents." The majority concluded further that by providing for direct review by an Article III court of any conviction in a military commission, Congress had implicitly instructed that judicial review should not take place before the commission process was complete. The majority concluded that national security is an arena in which the political branches receive wide deference and that comity prevents federal courts from interfering in such judgments, just as it prevents interfering with the functions of state and military courts.

Finally, the majority determined that nothing in the particular circumstances of Al-Nashiri's case made abstention inappropriate. Although noting that it found his allegations that he had been tortured while in custody "deeply troubling," the majority concluded that those claims did not provide any reason to fear that he would not be given a fair hearing in the military commission.

Judge Tatel dissented, arguing that while the question of whether Councilman's abstention doctrine should be extended to military commissions was a difficult one, significant differences between military commissions and courts-martial undermined the case for abstention, particularly in the circumstances of the present case.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-1023-1632743.pdf.

Panel: Tatel, Griffith, Sentelle

Argument Date: February 17, 2016

Date of Issued Opinion: August 30, 2016

Docket Number: 15-1023

Decided: Affirmed.

Counsel: Michel D. Paradis and Richard Kammen for appellant.


Joseph F. Palmer, Benjamin C. Mizer, Matthew M. Collette, Sonia K. McNeil, Michael Shih, and John F. De Pue for appellee.

Author of Opinion: Griffith

Dissent by: Tatel

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 09/01/2016 12:13 PM     DC Circuit     Comments (0)  

  Sara Rosenberg v. DVI Receivables XVII, LLC - Third Circuit
Headline: Third Circuit Finds State Law Claim for Damages Not Preempted by Federal Bankruptcy Law

Area of Law: Bankruptcy, Federal Preemption

Issues Presented: Does the federal Bankruptcy Code preempt the state law claim of non-debtors, which was based on the wrongful filing of an involuntary bankruptcy petition?

Brief Summary: Following a successful suit for damages based on a claim of bad faith involuntary bankruptcy proceedings, plaintiffs filed suit for damages against the parties who had initiated the involuntary bankruptcy proceedings for tortious interference with contracts and business relationships. Defendants sought dismissal of that suit on the ground that it was preempted by federal bankruptcy law on which the involuntary petitions had originally been filed. The Court found that the state law claims were not preempted by the involuntary bankruptcy provisions of the Bankruptcy Code.

Extended Summary:
Maury Rosenberg established several medical imaging companies that were initially financed by DVI Financial Services, Inc. who later transferred them to DVI Funding LLC. DVI Financial entered bankruptcy in 2004, resulting in US Bank's acquisition of the servicing contracts. DVI Funding and DVI Receivables filed involuntary bankruptcy petitions over money Rosenberg's companies owed to DVI. The district court dismissed these actions because DVI Funding and DVI Receivables were not the creditors to those debts.

Mr. Rosenberg then filed an adversary action under 1 U.S.C §303(i) against those two entities as well as U.S. Bank and its subsidiary Lyon Financial. Following a trial, the court awarded attorney's fees, damages, and costs to plaintiff for the bad faith filing of the involuntary bankruptcy filings.

In 2013 Sara Rosenberg together with several other entities owned by her husband filed suit to recover damages that resulted from the involuntary bankruptcy filings ("the Rosenberg affiliates"). The Rosenberg affiliates were not named in the involuntary bankruptcy proceedings, but claimed tortious interference with contracts and business relationships resulted from the bankruptcy filings because of their relationship to the named parties. Defendants moved to dismiss on the grounds that state law tortious interference claims were preempted by the involuntary provisions of the Bankruptcy Code.

The relevant section of the Code, 11 U.S.C. §303(i), provides that if an involuntary bankruptcy petition is dismissed, debtors may recover attorney's fees, costs, and damages from the creditors. The Rosenberg affiliates, not technically debtors, were unable to recover under the Code so then filed the state law claim.

In holding that the district court erred by finding the state law claims preempted by the involuntary bankruptcy provisions of the Bankruptcy Code, the Third Circuit began by explaining that there are three types of federal preemption: express, conflict, and field preemption. This case falls into the latter category, in which federal law preempts state law only if congressional intent to supersede state laws is clear and manifest and the federal regulation leaves no room for state regulation. The Court further explained that there is a strong preference to avoid preemption if possible. In order to find preemption, § 303 must indicate a clear intent to preempt state law.

The Court noted that the law refers only to debtors and does not lay out remedies available to non-debtors. Thus, the court held that field preemption was not applicable. The Court was not convinced by Defendants' argument that the Bankruptcy Code was intended to exclude a remedy for non-debtors when it created one for debtors. Rather, the Court interpreted the Code as a means of deterring abuse by holders of debt and that it would be inconsistent with the purposes of the law to deny a remedy to others, including non-debtors aggrieved by an abusive involuntary petition.

The Court emphasized that field preemption requires a clear and manifest intent, which was not present in the Code. The Court also distinguished a contradictory opinion from the Ninth Circuit, which it found inconsistent with its own previous decisions and the presumption against preemption.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/152622p.pdf

Panel (if known): Ambro, Jordan, Scirica

Argument Date: March 1, 2016

Date of Issued Opinion: August 29, 2016

Docket Number: 2-14-cv-05608

Decided: Reversed and Remanded

Case Alert Author: John Farrell

Counsel: Lewis J. Pepperman, Esq. (Argued), Tucker H. Byrd, Esq., Scottie N. McPherson, Esq., Counsel for Appellants; Craig A. Hirneisen, Esq., Stacey A. Scrivani, Esq., Peter H. Levitt, Esq. (Argued), Jack C. McElroy, Esq., Counsel for Appellees

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/01/2016 09:59 AM     3rd Circuit     Comments (0)  

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

Area of Law: Civil Procedure, Mootness

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

Brief Summary:

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

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

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

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

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

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

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

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

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

Panel: Ambro, Smith, and Krause, Circuit Judges

Argument Date: April 13, 2016

Date of Issued Opinion: August 15, 2016

Docket Number: No. 15-2797

Decided: Vacated and Dismissed

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Securities Law

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

Brief Summary:

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

Extended Summary:

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

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

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

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

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

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

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

Panel: Fuentes, Chagares, Restrepo, Circuit Judges

Argument Date:

Date of Issued Opinion: August 12, 2016

Docket Number: No. 15-2577

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Restrepo

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Constitutional Law

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

Brief Summary:

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

Extended Summary:

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

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

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

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

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

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

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

Panel: Smith, Hardiman, and Shwartz, Circuit Judges

Argument Date: May 19, 2016

Date of Issued Opinion: August 9, 2016

Docket Number: No. 15-3083

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

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Shwartz

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

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

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

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

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

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

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

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

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

Panel: Brown, Srinivasan, Edwards

Argument Date: March 15, 2016

Date of Issued Opinion: August 19, 2016

Docket Number: 15-5154

Decided: Reversed in part.

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

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

Author of Opinion: Brown

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

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

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

Area of Law: Environmental

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

Brief Summary:

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

Extended Summary:

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

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

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

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

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

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

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

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

Argument Date: October 29, 2015

Date of Issued Opinion: August 8, 2016

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

Decided: Denied

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Roth

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Property, civil forfeiture

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

Brief Summary:

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

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

Extended Summary:

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

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

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

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

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

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

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

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

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

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

Argument Date: October 14, 2015

Date of Issued Opinion: August 1, 2016

Docket Number: No. 12-4574

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Hardiman

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of law: Internet law; Communications Decency Act

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

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

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

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

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

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

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

Date of issued opinion: July 22, 2016

Docket number: 15-6336

Decided: July 22, 2016


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

Author of opinion: SUTTON, Circuit Judge.

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

Case alert circuit supervisor: Professor Mark Cooney

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

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

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

Area of Law: First Amendment

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

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

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

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

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

Panel: Griffith, Kavanaugh, and Randolph

Author of Opinion: Circuit Judge Griffith

Argument Date: February 23, 2016

Date of Issued Opinion: August 2, 2016

Docket Number: No. 15-5264

Decided: Reversed and remanded.

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

Circuit: D.C. Circuit

Case Alert Author: Elizabeth Earle Beske

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

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

Area of Law: Foreign Sovereign Immunities Act

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

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

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

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

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

Panel: Garland, Henderson, Randolph

Argument Date: January 21, 2016

Date of Issued Opinion: August 2, 2016

Docket Number: 14-7193

Decided: Affirmed on different grounds.

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

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

Author of Opinion: Henderson

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

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

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

Area of Law: Constitutional Law

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

Brief Summary:

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

Extended Summary:

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

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

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

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

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

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

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

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

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

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

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

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

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

Panel: Ambro, Jordan and Scirica, Circuit Judges

Argument Date: February 29, 2016

Date of Issued Opinion: July 29, 2016

Docket Number: No. 15-3459

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Damages, Civil Procedure

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

Brief Summary:

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

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

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


Extended Summary:

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

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

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

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

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


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

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

Argument Date: October 28, 2015

Date of Issued Opinion: July 5, 2016

Docket Number: No. 15-1381

Decided: Reversed and remanded

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Greenaway

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Cyber Law

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

Brief Summary:

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

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

Extended Summary:

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

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

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

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

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

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


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


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

Argument Date: December 8, 2015

Date of Issued Opinion: June 27, 2016

Docket Number: No. 15-1441

Decided: Vacated in part, affirmed in part

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Fuentes

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of law: Freedom of Information Act

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

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

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

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

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

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

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

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

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

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

Date of issued opinion: July 14, 2016

Docket number: 14-1670

Decided: July 14, 2016

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

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

Case alert circuit supervisor: Professor Mark Cooney

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

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

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

Area of Law: Freedom of Information Act

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

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

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

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

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

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

Panel: Henderson, Srinivasan, Millett

Argument Date: February 16, 2016

Date of Issued Opinion: July 29, 2016

Docket Number: 15-5201

Decided: Reversed in part, affirmed in part.

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

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

Author of Opinion: Srinivasan

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

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

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

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

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

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

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

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

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

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

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

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

Date of issued opinion: May 16, 2016

Docket number: 15-5429

Decided: May 16, 2016

Decision: Affirmed.

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

Author of opinion: SUTTON, Circuit Judge.

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

Case alert circuit supervisor: Professor Mark Cooney

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

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

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

Area of Law: Due Process

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

Brief Summary:

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

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

Extended Summary:

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

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

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

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

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

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

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

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

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



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

Panel: Smith, Hardiman, and Nygaard, Circuit Judges

Argument Date:

Date of Issued Opinion: June 30, 2016

Docket Number: No. 15-1650

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Smith

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Criminal Law

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

Brief Summary:


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


Extended Summary:

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

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

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

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

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

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

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

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

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

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

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

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


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


Panel: Ambro, Hardiman, and Nygaard, Circuit Judges

Argument Date: November 19, 2015

Date of Issued Opinion: June 24, 2016

Docket Number: No. 14-3561

Decided: Vacated in part, affirmed in part

Case Alert Author: Cynthia C. Pereira

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

Author of Opinion: Circuit Judge Nygaard

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: National Security Law; Judgments and Liens

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

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

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

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

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

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

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

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

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

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

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

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

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

To read full opinion, please visit:

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

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

Argument Date: February 2, 2016

Date of Issued Opinion: February 26, 2016

Docket Number: 13-57182

Decided: Affirmed

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

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

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

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

Author of Opinion: Judge D.W. Nelson

Case Alert Author: Andre Clark

Case Alert Supervisor: Professor Ryan T. Williams

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To read full opinion, please visit:

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

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

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

Date of Issued Opinion: February 18, 2016

Docket Number:
13-17603

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

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

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

Author of Opinion: Judge S. S. Ikuta

Case Alert Author: David Erghelegiu

Case Alert Supervisor: Professor Ryan T. Williams


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Argument Date: March 12, 2015

Date of Issued Opinion: February 24, 2016

Docket Number: 13-15218

Decided: Affirmed.

Case Alert Author: Kristina Coronado

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

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

Author of Opinion: Jay S. Byzee, Circuit Judge

Case Alert Supervisor: Professor Ryan T. Williams

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

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

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

Area of Law: First Amendment, Elections

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

Brief Summary:

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

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

Extended Summary:

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

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

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

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

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

Panel: Tymkovich, Murphy, and Bacharach

Date of Issued Opinion: February 4, 2016

Docket Number: No. 14-1463

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

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

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

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

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

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

Author of Opinion: Hon. Tymkovich

Case Alert Circuit Supervisor: Dawinder S. Sidhu

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

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

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

Area of Law: Fourth Amendment, Search

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

Brief Summary:

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

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

Extended Summary:

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

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

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

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

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

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

Panel: Holmes, Baldock, and Matheson

Date of Issued Opinion: January 21, 2016

Docket Number: No. 15-3104

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

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

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

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

Author of Opinion: Hon. Baldock

Case Alert Circuit Supervisor: Dawinder S. Sidhu

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

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

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

Area of Law: Fourth Amendment, Public Contract

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

Brief Summary:

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

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

Extended Summary:

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

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

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

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

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

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

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

Panel: Briscoe, Holmes, and Bacharach

Date of Issued Opinion: January 19, 2016

Docket Number: No. 14-8014

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

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

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

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

Author of Opinion: Hon. Holmes

Case Alert Circuit Supervisor: Dawinder S. Sidhu

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

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

Case: United States v. Mullet

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

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

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

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

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

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

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

Date of issued opinion: May 4, 2016

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

Decided: May 4, 2016

Decision: Judgment affirmed.

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

Author of opinion: SUTTON, Circuit Judge.

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

Case alert circuit supervisor: Professor Mark Cooney

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

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

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

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

Area of Law: Freedom of Information Act

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

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

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

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


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

Panel: Srinivasan, Edwards, Sentelle

Argument Date: January 4, 2016

Date of Issued Opinion: July 5, 2016

Docket Number: 15-5128

Decided: Reversed and remanded

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

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

Author of Opinion: Sentelle

Concurrence: Srinivasan

Case Alert Author:
Ripple Weistling

Case Alert Circuit Supervisor:
Elizabeth Beske, Ripple Weistling

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

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

Area of Law: Affordable Care Act

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

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

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

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

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

Panel: Kavanaugh, Wilkins, Silberman

Argument Date: April 15, 2016

Date of Issued Opinion: July 1, 2016

Docket Number: 15-5309

Decided: Affirmed

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

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

Author of Opinion: Silberman

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

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

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

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

Area of Law: Telecommunications Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Panel: Tatel, Srinivasan, Williams

Argument Date: December 4, 2015

Date of Issued Opinion: June 14, 2016

Docket Number: 15-1063

Decided: Affirmed

Counsel (if known):

Author of Opinion: Tatel and Srinivasan

Concurring in part: Williams

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

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

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

Area of Law Insurance

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

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

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

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

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

Panel Circuit Judges Arnold, Shepherd, and Wollman

Date of Issued Opinion May 17, 2016

Decided Affirmed in part and reversed in part

Docket Number 15-1927; 15-1929

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

Author Circuit Judge Arnold

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

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

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

Area of Law Criminal Law

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

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

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

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

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

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

Panel Circuit Judges Arnold, Shepherd, and Wollman

Date of Issued Opinion April 29, 2016

Decided Affirmed

Docket Number 15-3193

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

Author Circuit Judge Arnold

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

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

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

Area of Law: First Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Panel: Fuentes, Jordan, and Vanaskie, Circuit Judges

Argument Date: November 6, 2015

Date of Issued Opinion: June 1, 2016

Docket Number: No. 15-1755

Decided: Vacated in part, affirmed in part

Case Alert Author: Elizabeth C. Dolce

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

Author of Opinion: Circuit Judge Jordan

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Case: USA v. Kimberly Taylor

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

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

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

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

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

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

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

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

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

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

Date of issued opinion: March 7, 2016

Docket number: 15-5930

Decided: Affirmed

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

Author of opinion: Circuit Judge Julie S. Gibbons.

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

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

Case alert circuit supervisor: Professor Mark Cooney

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

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

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

Area of Law: Federal Sentencing

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

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

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

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

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

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

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

Panel: Smith, Hardiman, and Shwartz, Circuit Judges

Argument Date: May 20, 2016

Date of Issued Opinion: May 25, 2016

Docket Number: No. 15-3688

Decided: Affirmed

Case Alert Author: Elizabeth C. Dolce

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

Author of Opinion: Circuit Judge Shwartz

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt





Area of Law: Federal Sentencing

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

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

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

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

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

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

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

Panel: Smith, Hardiman, and Shwartz, Circuit Judges

Argument Date: May 20, 2016

Date of Issued Opinion: May 25, 2016

Docket Number: No. 15-3688

Decided: Affirmed

Case Alert Author: Elizabeth C. Dolce

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

Author of Opinion: Circuit Judge Shwartz

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Administrative Law, Communications

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Panel: Ambro, Fuentes, and Scirica, Circuit Judges

Argument Date: April 19, 2016

Date of Issued Opinion: May 25, 2016

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

Decided: Vacated and remanded

Case Alert Author: Elizabeth C. Dolce

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

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

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

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

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

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

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

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

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

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

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Housing Law

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

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

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

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

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

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

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

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

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

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

Panel: Fuentes, Smith, and Nygaard, Circuit Judges

Argument Date: October 6, 2015

Date of Issued Opinion: May 17, 2016

Docket Number: No. 15-1366

Decided: Affirmed

Case Alert Author: Elizabeth C. Dolce

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

Author of Opinion: Circuit Judge Nygaard

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Second Amendment

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

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

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

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

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

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

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

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

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

Argument Date: April 4, 2016

Date of Issued Opinion: May 18, 2016

Docket Number: No. 15-2859

Decided: Affirmed

Case Alert Author: Elizabeth C. Dolce

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

Author of Opinion: District Judge Thompson

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

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

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

Area of Law: Criminal, Search and Arrest Warrants

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

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

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

Panel: Fuentes, Krause, Roth, Circuit Judges

Argument Date: February 11, 2016

Date of Issued Opinion: May 2, 2016

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

Decided: Vacated and Remanded.

Case Alert Author: John Farrell

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

Author of Opinion: Judge Krause

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

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

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

Area of Law: Freedom of Information Act

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

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

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

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

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

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

Panel: Tatel, Griffith, Kavanaugh

Argument Date: February 18, 2016

Date of Issued Opinion: May 20, 2016

Docket Number: 14-5039

Decided: Reversed

Case Alert Author: Ripple Weistling

Counsel: Kelly B. McClanahan for appellant.

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

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

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

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

Case: USA v. Smith -- Sixth Circuit

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

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

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

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

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

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

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

Date of issued opinion: February 25, 2016

Docket number: 15-5853

Decided: Affirmed.

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

Author of opinion: PER CURIAM

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

Case alert circuit supervisor: Professor Mark Cooney

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

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

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

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

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

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


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

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

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

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

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

Exigent Circumstances

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

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

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

Protective Sweep

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

Inevitable Discovery

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

For the foregoing reasons, the panel affirmed.

To read full opinion, please visit:

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

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

Argument Date: November 5, 2015

Date of Issued Opinion: March 28, 2016

Docket Number: 14-5601

Decided: Affirmed.

Case Alert Author: Andre Clark

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

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

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

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

Author of Opinion: Judge Tiger

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

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

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

Areas of Law: Criminal and Constitutional Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To read the full opinion, please visit:

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

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

Argument Date: November 20, 2014

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

Docket Number: 13-55484

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

Case Alert Author: Ryan Arakawa

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

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

Author of Opinion: Judge Reinhardt

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Argument Date: July 10, 2015

Date of Issued Opinion: March 24, 2016

Docket Number: 12-73289

Decided: Vacated and Remanded

Case Alert Author: Kristina Coronado

Counsel:

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

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

Author of Opinion: Stephen Reinhardt, Circuit Judge

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

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

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

Areas of Law: Election law, Fifth Amendment

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

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

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

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

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

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

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

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

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

To read the full opinion, click here.

Panel: Chief Judge Traxler, Judges Shedd and Dillon

Argument Date: 12/08/2015

Date of Issued Opinion: 02/23/2016

Docket Number: No. 15-1455

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

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

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

Author of Opinion: Chief Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

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

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

Area of Law: Due Process, Appointments Clause

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

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

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

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

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

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

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

Argument Date: 11/10/2015

Date of Issued Opinion: 4/29/2016

Docket Number: No. 12-5204

Decided: Reversed

Case Alert Author: Elizabeth Earle Beske

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

Author of Opinion: Judge Brown

Circuit: D.C. Circuit

Case Alert Circuit Supervisor: Elizabeth Earle Beske; Ripple Weistling

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

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

Area of Law
: Criminal Law; Fraud

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

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

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


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

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

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

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

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


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

Argument Date: 1/26/2016

Date of Issued Opinion:
4/28/2016

Docket Number:
No. 15-996-cr

Decided: Affirmed

Case Alert Author: Nigyar Alieva

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

Author of Opinion: Judge Lynch

Circuit:
2nd Circuit

Case Alert Circuit Supervisor: Professor Elyse Diamond Moskowitz

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

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

Areas of Law: Criminal Procedure

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

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

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

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

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

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

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

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

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

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

To read the full opinion, click here.

Panel: Judges Niemeyer, Harris, and Davis.

Argument Date: 10/29/2015

Date of Issued Opinion: 02/23/2016

Docket Number: No. 14-4902

Decided: Reversed and vacated by published opinion

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

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

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

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

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

Areas of Law: Constitutional Law, Second Amendment

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

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

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

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

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

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

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

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

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

To read the full opinion click here.

Panel: Chief Judge Traxler and Judges King and Agee

Argument Date: 04/25/15

Date of Issued Opinion: 02/04/16

Docket Number: Case Nos. 14-1945

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

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

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

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

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

Case Alert Supervisor: Professor Renée Hutchins

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

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

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

Area of Law: Labor and Employment

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

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

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

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

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

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

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

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

Panel: Circuit Judges Parker, Lynch, and Carney

Argument Date: 10/8/2016

Date of Issued Opinion: 4/26/2016

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

Decided: Vacated and remanded.

Case Alert Author: Ryan Koleda

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

Author of Opinion: Judge Parker

Case Alert Circuit Supervisor: Emily Gold Waldman

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

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

Area of Law: Labor/Collective Bargaining/Arbitration

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

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

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

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


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

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

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

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

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

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

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

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

Panel: Katzmann, Parker and Chin

Argument Date: 3/3/2016

Date of Issued Opinion: 4/25/2016

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

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

Case Alert Author:
Gavin Michael Strube

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

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

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

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

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

Area of Law: Constitutional

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

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

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

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

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

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

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

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

Panel: Judges Raggi, Hall, and Carney.

Argument: 06/04/2015

Date of Issued Opinion: 04/22/2016

Docket Number: 11‐4283‐cv

Decided: Reversed and Remanded

Case Alert Author: Steven Manganelli

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

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

Case Alert Circuit Supervisor: Emily Gold Waldman

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

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

Areas of Law: Criminal Law

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

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

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

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

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

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

Panel: Judges Agee, Harris, and Chuang

Argument Date: 12/8/2015

Date of Issued Opinion: 04/30/2016

Docket Number: Case Nos. 15-4265

Decided: Affirmed by published opinion

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

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

Author of Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

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

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

Case: Troche v. Crabtree

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

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

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

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

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

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

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

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

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

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

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

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

Date of issued opinion: February 25, 2016

Docket number: 15-3258

Decided: Reversed and Remanded.

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

Author of opinion: Circuit Judge Bernice B. Donald.

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

Case alert circuit supervisor: Professor Mark Cooney

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

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

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

Area of Law: Class Action, Entertainment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Panel (if known): Ambro, Hardiman, Nygaard

Argument Date: November 19, 2015

Date of Issued Opinion: April 18, 2016

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

Decided: Affirmed

Case Alert Author: John Farrell

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

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

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

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

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

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

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

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

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

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

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

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

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

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

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

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

Areas of Law: Constitutional Law, Civil Law

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

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

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

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

On July 21, 2011, Yates filed this action in state court alleging multiple state and federal claims against Officer Terry, the City of North Charleston, the North Charleston Police Department, the Chief, and Unnamed John Does. The suit was removed to federal court and stayed while Yates was deployed to Germany and Kosovo. In May of 2014, Defendants moved for summary judgment and this motion was granted in all parts except with respect o the excessive force claim against Officer Terry in his individual capacity and various claims against the city. The claims against the city were eventually dropped after a subsequent motion, but Terry's excessive force claim was still at issue.

On April 28, 2015, the parties stipulated to all dismissals aside from Yates' 42 U.S.C. § 1983 claim for excessive force against Officer Terry. As a result, Officer Terry appealed this claim to the United States Court of Appeals for the Fourth Circuit, claiming that he was protected by qualified immunity. The court held that Officer Terry did not have qualified immunity to protect him from using excessive force on Yates. More specifically, the court went through a two-step inquiry to determine whether Officer Terry was entitled to qualified immunity.

First, the court was tasked with determining whether the facts established a constitutional violation. Here, Yates argued that Officer Terry used excessive force, which would be in violation his Fourth Amendment right to reasonable searches and seizures. As such, the court turned to the factors in Graham v. Conner to determine whether the amount of force used by Officer Terry was objectively reasonable. 490 U.S. 386 (1989). These factors included "the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396. The court found that all three factors weighed heavily in Yates' favor. First, his offense of driving without a license was a nonviolent minor traffic infraction and was only a misdemeanor. Second, Yates was unarmed and complied with all of the officer's orders, making the first two tases completely unreasonable. Moreover, even though Yates reached for his cell phone prior to being tased a third time, Yates' brother indicated at trial that the officer allowed Yates to slide him the phone and knew the reason Yates gave him the phone. Lastly, Yates never attempted to resist arrest or flee the scene.

Second, the court had to determine whether Yates' constitutional right was clearly established. The court explained that any reasonable official in Officer Terry's position would have understood that tasing a compliant arrestee three times during a non-threatening traffic stop was excessive force in violation of the arrestee's Fourth Amendment right to a reasonable seizure. As such, the court found that Officer Terry was not entitled to qualified immunity and thus affirmed the district court's denial of his motion for summary judgment.

To read the full opinion, click here.

Panel: Judges Wynn, Harris, and Biggs

Argument Date: 01/27/2016

Date of Issued Opinion: 03/31/2016

Docket Number: Case No. 15-1555

Decided: Affirmed by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Robin Lilley Jackson, SENN LEGAL, LLC, Charleston, South Carolina, for Appellant. Jason Scott Luck, SEIBELS LAW FIRM, P.A., Charleston, South Carolina, for Appellee. ON BRIEF: Gordon H. Garrett, GARRETT LAW OFFICES, North Charleston, South Carolina, for Appellee.

Author of Opinion: Judge Biggs

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/19/2016 07:32 AM     4th Circuit     Comments (0)  

April 13, 2016
  In re Pfizer Inc. Securities Litigation - Second Circuit
Headline: Second Circuit Vacates Summary Judgment Dismissal of Pfizer Securities Class Action Suit Back to District Court

Area of Law: Securities Law; Evidence

Issue(s) Presented: Whether the district court erred by excluding plaintiffs' expert on loss causation and damages from testifying at trial.

Brief Summary:
Plaintiffs-Appellants, Teachers' Retirement System of Louisiana and other investors, brought a class action against Pfizer, Inc. and several of its directors and officers, pursuant to the Securities Exchange Act, for making fraudulent misrepresentations and fraudulently omitting to disclose information regarding the safety of two of its drugs, Celebrex (celecoxib) and Bextra (valdecoxib). Plaintiffs allege that when the market eventually learned of the cardiovascular risks associated with these drugs, the value of Pfizer's shares fell, harming shareholders in the process.

The United States District Court for the Southern District of New York granted Pfizer's motion in limine to exclude Plaintiffs' expert on loss causation and damages from testifying at trial. Left with no testimony on these issues, Plaintiffs could not establish key elements of their claims, and the district court granted Pfizer's motion for summary judgment. The Second Circuit vacated summary judgment and remanded the case back to the district court, holding that the district court abused its discretion in precluding the expert's testimony about loss causation and damages in its entirety, rather than prohibiting only testimony about certain price adjustments made to calculate loss.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...ecff1c9cc6a/2/hilite/

Extended Summary: Celebrex and Bextra are part of a broad class of medicines known as non-steroidal anti-inflammatory drugs, which are used to treat chronic pain and inflammation. Before 1999, this class of drugs had a common problem; patients who used the drugs over a long period of time often developed stomach ulcers and other gastrointestinal problems. As a result, two pharmaceutical manufacturers - Merck & Co., Inc. and Searle - began researching a type of non-steroidal anti-inflammatory drug, known as a Cyclooxygenase 2 ("COX-2") inhibitor, which could reduce pain and inflammation without causing gastrointestinal distress. Both companies ultimately succeeded, with Merck creating a drug called Vioxx, and Searle creating Celebrex.

Pfizer, a research-based, global pharmaceutical company that develops, manufactures and markets prescription medicines first became involved with COX-2 inhibitors through Searle. In February 1998, Pfizer signed a series of agreements with Searle in which it agreed to, among other things, help market Celebrex. Searle later transferred control over Celebrex to Pharmacia through a merger in early 2000. Pfizer continued to fulfill its obligations until April 16, 2003, when it obtained the exclusive rights to manufacture, promote, and sell Celebrex and Bextra by purchasing Pharmacia.

Plaintiffs contend that, while Celebrex and Bextra eliminated the gastrointestinal issues associated with non-steroidal anti-inflammatory drugs, the drugs presented a different, dangerous side effect. As early as 1998, they claim, Pfizer and Searle knew about studies linking the COX-2 inhibitors to cardiovascular problems in patients, but because Celebrex was an enormous commercial success, Searle issued press releases and other public statements denying that the drugs presented such risks. When ownership of Celebrex passed to Pharmacia, and later to Pfizer, both companies continued to tout its safety, as well as the safety of Bextra, notwithstanding the discovery of additional medical evidence tying the drugs' use to heightened cardiovascular risks.

According to Plaintiffs, the press releases and public statements that Pharmacia and Pfizer issued during the class period had the effect of maintaining the public's misperception about the safety of Celebrex and Bextra. Plaintiffs claim that once information about studies linking the drugs to cardiovascular risks reached the public eye, Pfizer's share prices fell as investors reassessed the value of Celebrex and Bextra in light of the newly discovered risks. Plaintiffs brought a class action claiming Pfizer and several of its officers and directors misstatements concerning the cardiovascular risks associated with these drugs violated §§ 10(b), 20(a), and 20A of the Securities Act of 1934.

Plaintiffs retained Daniel R. Fischel, Professor Emeritus of Law and Business at the University of Chicago Law School and a former dean of that institution, to issue an expert report, based upon an "event study," regarding Pfizer's stock price change after the market learned about the cardiovascular risks associated with Celebrex and Bextra to establish loss causation and Plaintiffs' damages. Following discovery, the United States District Court for the Southern District of New York issued an order pursuant to Federal Rule of Evidence 702 excluding Fischel from testifying at trial. The district court reasoned that Fischel's failure to disaggregate the impact of Pfizer's alleged misrepresentations and those made by Searle and Pharmacia in his loss causation analysis rendered "his opinions unhelpful to the jury" in calculating damages caused by Pfizer alone. The court additionally rejected the methodology applied by Fischel in a supplement to his opinion adjusting his findings to account for the district court's determination in an earlier summary judgment ruling that stock-price declines on two particular dates could not reasonably be attributed to Pfizer's alleged misrepresentations. Plaintiffs could not establish essential elements of their claims without Fischel's testimony and, accordingly, the district court granted summary judgment in favor of Pfizer.

The Second Circuit vacated summary judgment, holding that the district court's rationale for excluding the testimony was inadequate to justify excluding it in its entirety. The Second Circuit held that, even assuming without deciding that Pfizer lacked authority over Searle and Pharmacia statements as Pfizer contends, Fischel's opinion did not need to account for the impact of the other companies' alleged misrepresentations to be helpful to the jury. The court reasoned that Fischel did not need to disaggregate the impact of the other companies' statements because Plaintiffs' "inflation maintenance theory" alleged that Pfizer concealed the same information as Searle and Pharmacia and, thus, is liable for the full extent of Plaintiffs' losses. The Second Circuit further held that, although the district court did not abuse its discretion in rejecting Fischel's methodology for adjusting his findings to account for stock-price fluctuation on two dates not attributable to alleged fraud, the court should have allowed Fischel to present his other findings. Holding that the district court abused its discretion in excluding the expert testimony in its entirety, the Second Circuit vacated the judgment and remanded to the district court for further proceedings.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...ecff1c9cc6a/2/hilite/

Panel (if known): Circuit Judges Kearse, Pooler, and Livingston

Argument Date: 5/26/2015

Date of Issued Opinion:
4/12/2016

Docket Number:
No. 14-2853-cv

Decided: Vacated and Remanded

Case Alert Author:
Nigyar Alieva

Counsel:
Gregory P. Joseph, Douglas J. Pepe, Sandra M. Lipsman, Joseph Hage Aaronson LLC, Jay W. Eisenhofer, James J. Sabella, Charles T. Caliendo, Grant & Eisenhofer P.A., Jonathan S. Massey, Massey & Gail LLP, David Kessler, Andrew L. Zivitz, Matthew L. Mustokoff, Kessler Topaz Meltzer & Check, LLP, for Plaintiff-Appellants; Miguel A. Estrada, Mark A. Perry, Gibson, Dunn & Crutcher LLP, Beth A. Wilkinson, Charles E. Davidow, Alexandra M. Walsh, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Andrew J. Ehrlich, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Lynn K. Neuner, George S. Wang, Simpson, Thacher & Bartlett LLP, John R. Wellschlager, DLA Piper LLP (US), Jennifer L. Spaziano, Skadden, Arps, Slate, Meagher & Flom LLP, George A. Stamboulidis, Baker & Hostetler LLP, Pamela R. Chepiga, Allen & Overy LLP, Michael L. Calhoon, Julie B. Rubenstein, Baker Botts LLP, for Defendant-Appellees

Author of Opinion:
Judge Livingston

Case Alert Circuit Supervisor:
Professor Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 04/13/2016 07:53 AM     2nd Circuit     Comments (0)  

April 11, 2016
  Gentry v. East West Partners Club Management, Inc. et al. -- Fourth Circuit
Finding the Right Standard: Court Upholds "But-For" Standard for Unlawful Termination Claim

Areas of Law: Employment Law, Disability Law, Americans with Disabilities Act

Issue Presented: (1) Whether the Americans with Disabilities Act requires proof that a plaintiff's disability was the "but-for" cause of termination. (2) Whether the district court's jury instruction on the definition of "disability" under the ADA was proper. (3) Whether the jury's award for damages was proper and adequate.

Brief Summary: In a unanimous decision, the United States Court of Appeals for the Fourth Circuit affirmed the district court's jury instruction on the proper causation standard under the Americans with Disabilities Act ("ADA") and the district court's jury instruction on the definition of disability under the ADA. The court also held that the jury's award for damages was adequate and proper.

Extended Summary: Judith Gentry was employed as an executive housekeeper at the Maggie Valley Club and Resort ("club"). In July 2007, Gentry fell at work and sustained a serious injury to her left foot and ankle. After surgery, she returned to work in January 2009; however, she continued to experience pain and difficulty walking. About a year later the club attempted to settle Gentry's workers' compensation claim, but Gentry declined out of fear that if she accepted, she might be terminated. Instead, she chose to mediate and her claim was ultimately settled in November 2010.

About a month later, Gentry was terminated. Gentry believed her termination was unlawfully connected to her disability and she sued the club on several state law grounds and under the ADA. At trial the jury found for Gentry on two of her state law theories, awarding her $20,000 in damages, but found for the club on all of her other claims. On appeal, Gentry challenged the jury instructions and the amount of damages awarded.

First, the Fourth Circuit determined that the district court's jury instruction on the termination standard for claims under the ADA was proper. The district court instructed the jury that to find for Gentry it must find that but-for Gentry's disability she would not have been terminated. On appeal, Gentry argued that the district court should have used the "motivating factor" standard instead - i.e., that the jury should find for her if her disability was a motivating factor in the decision to terminate her. The court analyzed the text of the ADA and held that its language required but-for causation. That conclusion, the court wrote, is also supported by the legislative history.

Next, the court addressed the definition of disability that the district court submitted in its instructions to the jury. Gentry argued that she was disabled under each of the three definitions of disability contained within the ADA. Under the ADA, if "a physical or mental impairment substantially limits one or more major life activities of [an] individual" then that individual is disabled. The district court instructed the jury that "substantially limits" means "restricts a person from performing [an] activity, compared to an average person in the general population." The court reviewed that instruction for plain error, and held that even assuming the instruction was erroneous Gentry's substantial rights were not affected. Accordingly, there was no reasonable probability that the court's instruction affected the outcome of her claim.

Under the ADA, an individual is also defined as "disabled" if that individual is "regarded as having such an impairment." The district court instructed the jury that it must decide if "a perception that [Gentry] was disabled, was the but-for reason" that she was terminated. The appellate court reviewed the instruction for abuse of discretion and found no such abuse.

Under the ADA, if an individual has "a record of...an impairment" then they are considered disabled. At trial, the district court omitted language from the instruction that would include even misclassified disabilities within that definition. However, because Gentry neither objected at trial, nor explained how the omission applied to her case, the court held that the district court did not abuse its discretion.

Finally, Gentry challenged the amount of damages the jury awarded. Gentry argued that because the club was permitted to explain its financial distress to the jury, she should have been able to introduce evidence that the club had liability insurance coverage. The court reviewed the district court's decision to not admit that evidence and held that it did not abuse it discretion in denying admission. Gentry also argued that she was entitled to a new trial because the jury's $20,000 award was inadequate. However, the court held that, in light of several mitigating factors that were submitted to the jury, it was reasonable for the district court to deny Gentry's motion for a new trial.

To read the full text of this opinion, please click here.

Panel: Judges Agee, Floyd, and Thacker

Argument Date: 12/10/2015

Date of Issued Opinion: 3/4/2016

Docket Number: 14-2382

Decided: Affirmed by published opinion

Case Alert Author:
Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: Glen Coile Shults, Jr., LAW OFFICE OF GLEN C. SHULTS, Asheville, North Carolina, for Appellant. Matthew J. Gilley, FORD HARRISON, LLP, Spartanburg, South Carolina; Jonathan Woodward Yarbrough, CONSTANGY, BROOKS, SMITH & PROPHETE, LLP, Asheville, North Carolina, for Appellees. ON BRIEF: Jule Seibels Northup, NORTHUP MCCONNELL & SIZEMORE, PLLC, Asheville, North Carolina, for Appellant.

Author of Opinion: Judge Floyd

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 12:25 PM     4th Circuit     Comments (0)  

  United States v. Adams -- Fourth Circuit
Justice Goes Full-Term: Court Reviews Claim of Actual Innocence After Right to Review Was Waived

Areas of Law: Plea agreements, Waiver of federal habeas review

Issue Presented: Whether waiver of the right to federal habeas review bars such review when the basis for relief is claim of actual innocence.

Brief Summary: In a unanimous decision, the United States Court of Appeals for the Fourth Circuit held that waiver will not bar federal habeas review when the petitioner asserts a cognizable claim of actual innocence.

In 2008, Richard Adams pled guilty to robbery, possessing a firearm during a crime of violence, and being a felon in possession of a firearm. Under the terms of the plea agreement, the prosecution dropped several other charges and Adams waived his right to challenge his convictions through federal habeas review. Adams was sentenced to concurrent 120-month sentences for robbery and being a felon in possession. In addition, Adams was sentenced to a consecutive 120 months for possession of a handgun during a crime of violence. His total sentence was thus 240 months. Adams appealed but his sentence and conviction were affirmed by the Fourth Circuit.

In 2012, Adams filed a petition for federal habeas review. Adams' basis for relief was that he was actually innocent of the felon in possession conviction because he was not, in fact, convicted of a prior felony. Adams' claim relied on a prior Fourth Circuit decision, which changed how convictions under North Carolina's Structured Sentencing Act are classified. The court held that felonies are crimes for which a defendant must have actually faced the possibility of more than a year in prison. Hypothetical enhancements can not convert a crime into a felony if that crime is punishable by less than one year in prison. Therefore, argued Adams, because his prior conviction was not a felony as a matter of law, he was actually innocent of being a felon in possession.

The district court dismissed Adams' federal habeas petition. The court found he waived his right to such relief, and alternatively that no actual prejudice was suffered because a ruling in his favor would result in Adams serving the same amount of time.

The Fourth Circuit vacated the district court's decision. First, the court discussed the district court's finding that no actual prejudice was suffered. Although the prosecution abandoned that argument on appeal, the court noted that Adams' appeal is not barred. Convictions carry collateral consequences, therefore even convictions which carry concurrent sentences can be challenged on appeal.

Next, the court held that Adams' waiver was valid because he received the benefit of a colloquy during which he was fully apprised of his rights. Waiver, however, will not bar review if to do so would be a miscarriage of justice. In order to avoid a miscarriage of justice, the court found that Adams' cognizable claim of actual innocence was not waived.

Next, the court addressed the merits of Adams' habeas petition. The court found that Adams was innocent "in fact," not merely innocent by operation of law because Adams was, in fact, not a prior convicted felon. Further, the court found that because Adams' dropped charges were not related to his felon in possession charge, he did not need to prove factual innocence of the dropped charges.

Finally, the court reminded the prosecution that seeking to reinstate the dropped charges in retaliation for Adams' successful appeal would be a violation of Adams' due process rights. Adams is actually innocent of his felon in possession conviction, therefore the court entered judgment in favor of Adams and vacated the district courts' decision.

To read the full text of this opinion, please click here.

Panel: Motz, Floyd, Circuit Judges, and Gibney, sitting by designation

Argument Date: 12/9/2015

Date of Issued Opinion: 2/19/2016

Docket Number: 13-7107

Decided: Vacated by published opinion

Case Alert Author: Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: Marianna F. Jackson, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant. Christopher Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert A. Long, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Seth M. Wood, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion:
Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 12:13 PM     4th Circuit     Comments (0)  

  Perdue Foods LLC v. BRF S.A. -- Fourth Circuit
Playing Chicken: Did Foreign Company Purposefully Avail Itself of Privilege of Conducting Business in State, Triggering Court's Jurisdiction?

Issue Presented: Whether the trial court had jurisdiction over a Brazilian chicken distributor whose only tie to the forum state was a business relationship with Perdue.

Brief Summary: Perdue Foods, LLC, sells chickens internationally and domestically under the trademark, Perdue. BRF is a Brazilian chicken producer that sells chicken in Brazil under the mark Perdix. BRF was also seeking to register that trademark in various foreign countries. In order to avoid product and consumer confusion, Perdue and BRF entered into an agreement by which BRF agreed not to pursue the trademark "Perdix" outside of Brazil and Perdue agreed not to pursue registration of "Perdue" in Brazil. Based on this agreement, the two companies began conducting a business relationship by which Perdue bought 700,000 pounds of chicken from BRF between 2012-2014. Pursuant to this contract, Perdue sent purchase orders to BRF in Brazil and BRF sent invoices to Perdue in Maryland. The chicken was shipped exclusively to Tanzania from Brazil.

Despite this business relationship, Perdue alleged that BRF had not honored the trademark agreement and continued to pursue registration of its mark "Perdix" in several foreign countries. As such, Perdue brought suit against BRF in the United States District Court for the District of Maryland. BRF moved to dismiss the action, arguing that the Maryland court had no personal jurisdiction over BRF. The District Court granted the motion, finding Perdue had not alleged sufficient facts to establish the requisite jurisdiction. Perdue appealed.

In examining whether the court had personal jurisdiction, the United States Court of Appeals for the Fourth Circuit first examined what kind of personal jurisdiction was alleged - specific or general. The Fourth Circuit determined that general jurisdiction would not apply as it requires continuous business relationships and contacts with Maryland. The court then examined the inquiry under specific personal jurisdiction - which requires that the defendant purposefully established minimum contacts within the forum state. In this inquiry, the court examined: (1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arose out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.

The Fourth Circuit ultimately held there were not sufficient facts under review to establish specific personal jurisdiction over BRF. Relying primarily on the first prong of the analysis, the court determined that BRF did not purposefully avail itself of the laws and privileges of the forum state (Maryland). The court was persuaded by the fact that BRF had no officers or offices in Maryland, never traveled to Maryland, never sent any products to Maryland, and never dealt with any company (other than Perdue) in Maryland. In fact, the only fact the court determined Perdue alleged that showed some connection to Maryland was the Maryland choice of law clause contained in the contract. Despite Perdue's efforts to equate this situation to Burger King, the court was unmoved. Burger King featured a more than twenty-year franchise relationship between the defendant and the forum state, and was thus distinguishable from this case. Unlike the prolonged business interaction between the franchise in Burger King and the forum state, BRF's contact with Maryland featured a very discrete contract between BRF and Perdue. Further, the court found it persuasive that BRF merely sent invoices to Maryland, but never anything further. Ultimately, the Fourth Circuit affirmed the District Court's ruling dismissing the action for lack of personal jurisdiction.

To read the full opinion, click here.

Panel: Judges Motz, Floyd, and Gibney, Jr.

Argument Date: 12/09/2015

Date of Issued Opinion: 02/19/2016

Docket Number: No. 14-2120

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Damon W.D. Wright, VENABLE LLP, Washington, D.C., for Appellant. Jeffrey Eric Ostrow, SIMPSON THACHER & BARTLETT LLP, Palo Alto, California, for Appellee. ON BRIEF: Brandon C. Martin, Palo Alto, California, Lori E. Lesser, SIMPSON THACHER & BARTLETT LLP, New York, New York; Geoffrey H. Genth, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Motz

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 11:29 AM     4th Circuit     Comments (0)  

  United States ex rel. May & Radcliffe -- Fourth Circuit
Qui Tam Fo Fum: I Smell the Blood of Narrow Construction of the Public Disclosure Bar of the False Claims Act

Issue Presented: Whether a suit brought by one qui tam relator based on information an attorney learned during the prior representation of a different qui tam relator qualified as being "based upon" under the Public Disclosure Bar of the False Claims Act?

Brief Summary: The False Claims Act ("FCA") gives the government the ability to fine individuals and companies who file for government reimbursement using false or fraudulent information. The FCA also allows private litigants to bring an action on behalf of the government. Should such an action prevail, the government will pay the individual a bounty. The public disclosure bar prevents a court from hearing any actions brought by a qui tam relator that are based on publicly disclosed information.

The instant false claims case arises out of litigation that has been before the United States Court of Appeals for the Fourth Circuit before. Approximately ten years ago, Mark Radcliffe (not a litigant in the current case) brought a qui tam action alleging the company he formerly worked for (Purdue Pharmaceuticals) falsely inflated the efficacy of OxyContin to get government reimbursement for a more expensive version of the drug. The court eventually dismissed that case, holding that an agreement Mr. Radcliffe signed as part of his severance barred his qui tam claim. Following that dismissal, his wife, Angela Radcliffe, took on the case as the plaintiff and filed an ultimately fruitless petition for cert.

The current case, filed by both Angela Radcliffe and another former Purdue employee, Steven May, alleges essentially the same claims made in Mr. Radcliffe's original qui tam action. Mrs. Radcliffe and Mr. May also used the same attorney Mr. Radcliffe used in the original action. The District Court ruled that the Public Disclosure Bar ("Bar") of the FCA meant that the court did not have jurisdiction over this claim.

Mr. May and Mrs. Radcliffe claimed that the Bar did not apply because they never reviewed the actual filings in Mr. Radcliffe's case, but instead relied on information that their attorney learned during his representation of Mr. Radcliffe in the prior case. The Fourth Circuit held that though the litigants may not have reviewed the actual filings, using information their attorney developed in the previous action was sufficiently "based upon" publicly disclosed information so as to bar the claim on jurisdictional grounds under the FCA. While noting that most other circuits actually use a substantially related standard - barring any claim that is substantially the same as or related to a publicly disclosed action - the Fourth Circuit determined that the purpose of the bar was to discourage "piggybacking" on information that was generally known to the public.

Panel: Judges Traxler, Diaz, and Agee

Argument Date: 10/29/2015

Date of Issued Opinion: 01/29/2015

Docket Number: No. 14-2299

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Mark Tucker Hurt, THE LAW OFFICES OF MARK T. HURT, Abingdon, Virginia, for Appellant. Daniel Stephen Volchok, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for 2 Appellees. ON BRIEF: Paul W. Roop, II, ROOP LAW OFFICE, LC, Beckley, West Virginia, for Appellant. Howard M. Shapiro, Christopher E. Babbitt, Charles C. Speth, Ariel Hopkins, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellees

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 11:20 AM     4th Circuit     Comments (0)  

April 7, 2016
  Eternal Word Television Network v. Alabama-11th Circuit
Headline: Eleventh Circuit holds that the accommodation for the Affordable Care Act's ("ACA") contraceptive mandate does not violate the Religious Freedom Restoration Act ("RFRA").

Area of Law: Constitutional Law

Issue: Whether the government imposes an undue burden on nonprofit organizations with a religious objection to providing contraceptive coverage by requiring them to opt out of ACA's contraceptive mandate.

Brief Summary: In three consolidated cases, Eternal Word Television Network, Inc. ("EWTN") and other nonprofit organizations with religious objections to providing contraceptive coverage to employees, challenged ACA's accommodations that required them to opt out of ACA's contraceptive mandate. The Eleventh Circuit found that ACA's accommodation does not substantially burden EWTN's rights because (1) the government has a compelling interest that justifies the accommodation, and (2) the accommodation is the least restrictive means of furthering those interests.

Extended Summary: EWTN and the Secretary of the United States Department of Health & Human Services ("HHS") filed cross-motions for summary judgment, with EWTN claiming that ACA's accommodation violated RFRA, the Free Exercise Clause, the Establishment Clause, and the Free Speech Clause of the First Amendment. The district court denied EWTN's motion, but granted the government's motion, and both parties filed appeals. In the other two cases, the district court granted a group of Catholic entities' summary judgment motions on the claim that the accommodation violated RFRA. The government appealed.

The Eleventh Circuit found that the mandate and accommodation did not violate RFRA because the accommodation survives strict scrutiny. This determination also disposed of the Free Speech claim. The court also rejected the Free Exercise claim, because the mandate was facially neutral and the government's legitimate interest was rationally related to the mandate. Additionally, the court determined that, since the accommodation distinguishes on the basis of tax status rather than religious denomination, it did not violate the Establishment Clause. The Eleventh Circuit stayed enforcement of the mandate, noting the presence of several cases currently pending before the United States Supreme Court on this issue.

Judge Tjoflat dissented based on his determinations that the regulatory scheme imposes a substantial burden on the religious exercise of the parties and that it does not survive strict scrutiny.

To view the full opinion please click here

Panel: Tjoflat, Jill Pryor and Anderson, Circuit Judges

Argument: February 4, 2015

Date of Issued Opinion: February 18, 2016

Docket Numbers: 14-12696, 14-12890, 14-13239

Decided: Affirmed in part, reversed in part, and remanded

Case Alert Author: Matthew Carcano, Kevin Coppin, Oscar Quintero, Kielan Saborit

Counsel:
Lori Halstead Windham for Appellant EWTN
Joshua Marc Salzman for Appellant/Appellee U.S. Dep't of Health et al.
Janine Cone Metcalf for Appellee The Roman Catholic Archdiocese

Author of Opinion: Circuit Judge Jill Pryor

    Posted By: Gary Kravitz @ 04/07/2016 03:24 PM     11th Circuit     Comments (0)  

  Quigg v. Thomas County School District-11th Circuit
Headline: The Eleventh Circuit holds the McDonnell Douglas framework is inapplicable to mixed-motive discrimination claims that are based on circumstantial evidence.

Area of Law: Employment Law

Issue: Whether the McDonnell Douglas framework is proper for evaluating mixed-motive employment discrimination claims that are based on circumstantial evidence.

Brief Summary: In a mixed-motive claim, the district court applied the framework set out in McDonnell Douglas v. Green, 411 U.S. 792 (1973). The Eleventh Circuit reversed the district court's use of the McDonnell Douglas framework and adopted a less burdensome standard used in other circuits.

Extended Summary: Linda Quigg, ("Quigg") claimed discriminatory and retaliatory practices when the Thomas County School District, and five members of the school board refused to renew her employment contract. The district court applied the McDonnell Douglas framework to Quigg's claim and found that no triable issue of discrimination existed based on the circumstantial evidence presented
On appeal, the Eleventh Circuit held the McDonnell Douglas summary judgment framework is "fatally inconsistent" with mixed-motive theory because the framework predicates on a single "true reason" for an adverse action. The Eleventh Circuit evaluated the framework applied in other circuits and held the proper analysis should only require a plaintiff to provide evidence sufficient to convince a jury that a defendant took adverse action and that a protected characteristic was a motivating factor in the action. Applying this framework, the Eleventh Circuit found Quigg's circumstantial evidence was sufficient to establish a jury issue. Additionally, the Eleventh Circuit affirmed the dismissal of some of Quigg's § 1983 claims and all her retaliation claims.

To view full opinion: Click Here

Panel: Wilson, William Pryor, and Gilman (United States Circuit Judge for the Sixth Circuit Court of Appeals, sitting by designation)

Argument: October 06, 2015

Date of Issued Opinion: February 22, 2016

Docket Number: 14-14530

Decided: Affirmed in part, reversed in part

Case Alert Authors: Matthew Carcano, Kevin Coppin, Oscar Quintero, Kielan Saborit.

Counsel: Harlan S. Miller, III for Appellant
Randall C. Farmer; Edward F. Preston for Appellee

Author of Opinion: Circuit Judge Wilson

    Posted By: Gary Kravitz @ 04/07/2016 02:28 PM     11th Circuit     Comments (0)  

April 5, 2016
  Balogh v. Lombardi - Eighth Circuit
Headline Eighth Circuit panel reverses district court order denying immunity to director of Missouri Department of Corrections

Area of Law Eleventh Amendment Immunity

Issue(s) Presented Whether a district court properly determined that the director of the Missouri Department of Corrections was not entitled to immunity from suit in an action by the American Civil Liberties Union.

Brief Summary A Missouri statute grants the director of the Missouri Department of Corrections (Department) the authority to selection an "execution team." The statute prohibits the disclosure of the identities of individuals who participate in executions. It further provides a private right of action to those individuals against anyone who "knowingly disclose[s] the identity of a current or former member of an execution team" without the Department director's approval. Mo. Rev. Stat. § 546.720.3.

The American Civil Liberties Union (ACLU) obtained documents related to executions under the Missouri Sunshine Law. It then posted the documents to its website, but later removed them when it learned of the statute prohibiting disclosure of the identities of execution team members. The ACLU sued the Department director, arguing that the statute was unconstitutional because it violated the ACLU's rights of free speech, free press, and due process under the First and Fourteenth Amendments. The director moved for summary judgment, claiming that he was immue from suit under the Eleventh Amendment, that the ACLU lacked standing, and that the claims failed as a matter of law.

The district court held that the director was not immune from suit, denied his motion in part on that basis, and deferred ruling on the other arguments. The district court found that because the director had a duty to enforce the statute by implementing an execution protocol and selecting the execution team, he was determining whose identities must be kept confidential, and therefore was not immune from suit.

On appeal, the Eighth Circuit disagreed. It first addressed the director's standing argument, and concluded that the ACLU did not having standing to bring this suit against the director. This conclusion was based on the fact that the director had no enforcement authority, because the statute only allowed for a private right of action by those whose identities were disclosed. The statute did not authorize the director to take any enforcement action against the ACLU for improper disclosure of execution team member identities. As such, the ACLU's claimed injury, chilled speech, was not "fairly traceable" to the director, and he had no ability to redress the alleged injury. The Eighth Circuit also found that because the director had no authority to enforce the challenged statute, he was also immune from suit under the Eleventh Amendment.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/03/143603P.pdf

Panel Chief Judge Riley, Circuit Judges Bye and Gruender

Date of Issued Opinion March 11, 2016

Decided Reversed

Docket Number 14-3603

Counsel Caroline Coulter for Appellant and Anthony Rothert for Appellees

Author Chief Judge Riley

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/05/2016 12:46 PM     8th Circuit     Comments (0)  

  Matherly v. Andrews -- Fourth Circuit
Forward Looking But Still Applicable: Fourth Circuit Holds Adam Walsh Act Not Impermissibly Retroactive

Areas of Law: Criminal Procedure, Criminal Law, Civil Procedure

Issues Presented: Whether the Adam Walsh Act ("the Act") was properly applied to a prisoner who was convicted of crimes and committed to Bureau of Prisons' ("BOP") custody before the Act became effective. Whether the BOP relinquished its legal authority over the prisoner before the government filed for certification of the prisoner as a "sexually dangerous person" under the Act.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the United States District Court for the Eastern District of North Carolina's ("district court") holding that the Adam Walsh Act was permissibly applied to a prisoner who was convicted and committed to the BOP's custody before the Act became effective. However, the Fourth Circuit reversed and remanded the district court's grant of summary judgment to the government on the issue of whether the BOP relinquished its legal authority over the prisoner before the government filed for certification of the prisoner as a sexually dangerous person.

Extended Summary: The Adam Walsh Act "authorizes the civil commitment of sexually dangerous persons who are in the custody of the BOP." A sexually dangerous person is a person who engaged in or "attempted to engage in sexually violent conduct or child molestation and" who "would have serious difficulty refraining from [such conduct] if released." Following completion of any criminal sentence the government or the BOP can ensure continued civil commitment by certifying to the district court that an individual is a sexually dangerous person. If such certification occurs, the inmate's release is stayed pending a hearing. "If after [the] hearing the district court finds by clear and convincing evidence that the person is" sexually dangerous, the court will commit the person to the Attorney General's custody "until it is determined that the person is no longer sexually dangerous to others."

Thomas Matherly pled guilty to one count of possessing child pornography. Following this conviction, his supervised release in an earlier case involving child sex charges was also revoked. He received a combined sentence in the two cases of 47 months imprisonment plus 3 years of supervised release. With time served and good time credits, Matherly was eligible for release on November 23, 2006. However, because November 23, 2006, was Thanksgiving Day, the BOP intended to release Matherly into supervised release on November 22, 2006. "On that same day, the government certified Matherly as a sexually dangerous person" under the Adam Walsh Act.

As required by the Act, the district court began civil commitment proceedings to determine whether Matherly was in fact sexually dangerous. Matherly conceded that he had previously molested children. He also conceded that he suffered from mental illness. In May 2012, after years of litigation by Matherly and others regarding the constitutionality of the Adam Walsh Act, the district court deemed Matherly to be sexually dangerous as defined by the Act. The court therefore ordered Matherly committed to the Attorney General's custody. In April 2013, Matherly filed a pro se petition for a writ of habeas corpus alleging that "the Act had been impermissibly applied retroactively to him." Matherly also contended he was not in BOP custody "within the meaning of [the Act]" when the government filed its certification. The district court rejected Matherly's claim, and Matherly appealed.

The Fourth Circuit affirmed the district court. The Fourth Circuit found that the Act does not operate retroactively and was therefore not impermissibly applied to Matherly. The Act addresses the potential for future harm posed by sexual predators and is not punishment for past crimes. The court explained that Congress expressed its intent that the Act apply to people "in the BOP's custody who would pose a current threat to the public if released," regardless of when the individual was convicted or was committed to the BOP's custody. Moreover, the court explained that the Act is not impermissibly retroactive as it "does not seek to affix culpability for prior acts" and only uses prior acts "for evidentiary purposes to support a finding of a person's mental abnormality, future dangerousness, or both."

However, the Fourth Circuit reversed the district court's grant of summary judgment to the government and remanded to allow the parties to further develop the record on when the government relinquished its legal authority over Matherly. In the court's view the records Matherly submitted were "insufficient to demonstrate that the BOP relinquished its legal authority over Matherly prior to the government's filing" for his certification as a sexually dangerous person.

To read the full text of this opinion, please click here.

Panel: Chief Judge Traxler, and Circuit Judges Agee and Wynn

Argument Date: 01/28/16

Date of Issued Opinion: 03/16/16

Docket Number: Case No. 14-7691

Decided: Affirmed in part; reversed and remanded in part by published opinion.

Case Alert Author: Simone Chukwuezi, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Joshua Robbins, Brian Remondino, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Michael Lockridge, BUREAU OF PRISONS, Butner, North Carolina, for Appellee. ON BRIEF: Stephen L. Braga, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Thomas G. Walker, United States Attorney, R.A. Renfer, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Chief Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/05/2016 08:52 AM     4th Circuit     Comments (0)  

April 4, 2016
  Tyree v. United States -- Fourth Circuit
Pro Se Appellant Prevails: Federal Inmate Granted Opportunity for Discovery Before Court Reviews Merits

Areas of Law: Civil Law (Torts), Civil Procedure

Issue Presented: Whether the district court abused its discretion in entering summary judgment prior to discovery.

Brief Summary: The United States Court of Appeals for the Fourth Circuit ("the court") vacated and remanded the district court's grant of summary judgment to the government because the court had not allowed the parties to engage in the discovery process. The court found that discovery might have created a genuine issue of material fact sufficient to defeat summary judgment.

Extended Summary: Scott Tyree ("Tyree"), a federal prison inmate, filed suit under the Federal Tort Claims Act ("FTCA"), alleging that prison officials failed to protect him from, and failed to respond promptly to, an attack by his cellmate. Based primarily on the Government's affidavits accompanying its motion for summary judgment, the district court ruled that the prison guards responded immediately to the altercation, and granted summary judgment for the Government.

Tyree appealed this determination to the United States Court of Appeals for the Fourth Circuit, contending that the district court abused its discretion in entering summary judgment prior to discovery. Tyree emphasized that there was a dispute over how quickly the prison officials responded and this could have been resolved by video surveillance in the prison and written reports. Additionally, he asserted that prison records might show whether his cellmate had an institutional record indicating he should not have been housed with Tyree. Lastly, Tyree argued that he could have discovered whether the emergency system, including the tone and light, at the prison, was operational. The Fourth Circuit agreed with Tyree and ultimately vacated and remanded the district court's granting of summary judgment to the government, finding that discovery would potentially have created a genuine issue of material fact sufficient to defeat summary judgment.

To read the full opinion, click here.

Panel: Judges Motz, Floyd, and Davis

Argument Date: 02/19/2016

Date of Issued Opinion: 03/23/2016

Docket Number: Case No. 15-7528

Decided: Vacated and remanded by unpublished per curiam opinion

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: Scott Tyree, Appellant Pro Se. Michael Bredenberg, SPECIAL ASSISTANT UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Per Curiam

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2016 02:35 PM     4th Circuit     Comments (0)  

  United States v. Cowley -- Fourth Circuit
Fourth Circuit Says 'No Way' to COA for IPA Appeal

Areas of Law: Criminal Procedure, Criminal Law, Appellate Procedure

Issues Presented: Whether a certificate of appealability is required for the denial of an Innocence Protection Act ("IPA") motion; and whether the district court abused its discretion when denying Cowley's IPA motion for untimeliness.

Brief Summary: In August 2000, Shane Cowley was convicted of crimes stemming from the attempted robbery and murder of Jeff Stone. He was sentenced to 45 years in prison. Both his conviction and sentence were affirmed on appeal. In 2004, Cowley's motion to vacate pursuant to 28 U.S.C. § 2255 was denied by the district court and the United States Court of Appeals for the Fourth Circuit. Also, in 2004, the Innocence Protection Act (IPA) became law allowing "federal prisoners to move for court-ordered DNA testing under certain specified conditions." Cowley's instant appeal centers on the denial of his IPA motion.

Before reviewing the denial of Cowley's IPA motion, the Fourth Circuit considered the government's argument that Cowley's appeal was not properly before the court because the district court denied a Certificate of Appealability (COA) and the Fourth Circuit did not grant one. The government further claimed that a COA was needed because the IPA motion presents itself as a successive habeas petition. The Fourth Circuit, citing both statutes, held that an appeal from the denial of an IPA motion is not subject to the COA requirement. First, the court explained the plain language of the IPA does not contain a COA requirement. Comparatively, the statute for a § 2255 motion expressly requires a COA. Next, the court found the text of the IPA makes clear that it is intended to provide different relief than habeas remedies. Therefore, the Fourth Circuit found that a COA is not needed for an appeal from the denial of an IPA motion.

After deciding that Cowley's appeal was properly before it because he did not need a COA, the Fourth Circuit examined the denial of Cowley's IPA motion for DNA testing for an abuse of discretion. A motion under the IPA must meet ten requirements including timeliness. There is a rebuttable presumption of timeliness on motions, "made within 60 months of enactment of the Justice for All Act of 2004 or within 36 months of conviction, whichever comes later." Cowley's motion was not subject to this rebuttable presumption because his 60-month period expired five years before his motion was filed.

Cowley argued that he could overcome a finding of untimeliness by demonstrating good cause and manifest injustice. First, Cowley stated he had shown "good cause" because he had been incarcerated for eight years between the IPA's passing and filing his motion and as such he had not been able to find an attorney or investigators to work on his case. The Fourth Circuit rejected this argument, explaining that incarceration and the inability to find an investigator are not good causes as all those bringing IPA motions will be incarcerated. The court further explained that ignorance of the law is also not enough for good cause. Next, Cowley argued that the denial of his motion would result in manifest injustice. Considering "all relevant facts and circumstances surrounding the motion," the Fourth Circuit rejected this argument as well.

The Fourth Circuit stated that both Cowley and his attorney were aware of the underlying DNA claims as early as trial but Cowley still waited 8 years to file the IPA motion. The court also pointed out that Cowley was appointed counsel during his § 2255 proceedings. Thus, for some time after the IPA was passed he did have counsel. Moreover, there was a minimal showing that the evidence would have DNA material available for testing and that the results of testing would "raise a reasonable probability" that Cowley didn't commit the crimes. Because Cowley was unable to rebut the presumption of untimeliness by showing good cause and manifest injustice, his motion was untimely. Thus, the Fourth Circuit found that the district court did not abuse its discretion and affirmed its denial of Cowley's IPA motion seeking DNA testing.

To read the full text of this opinion, please click http://www.ca4.uscourts.gov/Op...6067.P.pdf">here. [/L]

Panel: Judges Traxler, Shedd, and Dillon

Argument Date: 12/8/2015

Date of Issued Opinion: 2/29/16

Docket Number: No. 15-6067

Decided: Affirmed by published opinion

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: James Yash Moore, THE LAW OFFICE OF JAMES Y. MOORE, Ludlow, Kentucky, for Appellant. Erik S. Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: R. Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee

Author of Opinion: Judge Dillon

Case Alert Supervisor: Professor Reneé Hutchins

    Posted By: Renee Hutchins @ 04/04/2016 02:20 PM     4th Circuit     Comments (0)  

March 31, 2016
  Andrade-Zamora v. Lynch - Eighth Circuit
Headline Eighth Circuit panel denies petition for review of immigration judge decision regarding application for cancellation of removal

Area of Law Immigration Law

Issue(s) Presented Whether an immigration judge properly pretermitted an application for cancellation of removal where underlying theft conviction was vacated.

Brief Summary Petitioner Andrade-Zamora petitioned the Eighth Circuit for review of a decision by an immigration judge pretermitting his application for cancellation of removal. The underlying removal decision was based on petitioner's conviction for theft in the fourth degree, a crime involving moral turpitude. Petitioner conceded that he was removable, but argued that he was eligible to apply for cancellation despite his conviction on two grounds. First, because a state court vacated his conviction for theft. Second, because his conviction for a crime involving moral turpitude would preclude him from applying for cancellation of removal only if he was admitted to the United States within five years of committing the offense, which he was not, since he was never lawfully admitted to the United States.

With respect to the first issue, along with his motion for cancellation of removal, Petitioner submitted an order from an Iowa state court. The order made the conviction for theft in the fourth degree a "nullity" because the parties had discovered "material evidence" that could not be discovered before Petitioner pled guilty. In such cases, the person seeking cancellation of removal has the burden to prove that the conviction was vacated on the merits. If the conviction was vacated for a reason unrelated to the merits, such as to avoid immigration consequences, the conviction will still stand for immigration purposes despite its vacatur.

In this case, the Eighth Circuit found that Petitioner did not meet his burden of proof. The timing and effect of the order, just two weeks after the government filed its notice alleging that Petitioner was removable, was suspicious and suggested that the vacatur was for immigration purposes. Moreover, the order itself did not prove that the conviction was vacated for a substantive or procedural reason, and Petitioner could also point to no "material evidence" supporting the vacatur, nor could he provide any explanation for why the sentence was vacated.

With respect to the second issue, Petitioner argued for an interpretation of the removal statute that would only prohibit aliens who had been lawfully admitted into the United States within five years of being convicted of a crime involving moral turpitude from applying for cancellation of removal. Petitioner argued that since he was never lawfully admitted into the United States, the statute did not apply to him. Petitioner's interpretation was contrary to the interpretation of the Board of Immigration Appeals (BIA). This interpretation question was an issue of first impression for the Eighth Circuit.

The Eighth Circuit determined that the BIA's interpretation of the statute is entitled to Chevron deference. In keeping with the rulings of sister circuits, the Eighth Circuit held that the BIA's interpretation is supported by the structure of the statute, and also avoids illogical results. The Court therefore rejected Petitioner's interpretation of the statute and denied the petition for review.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/02/152004P.pdf

Panel Circuit Judges Bye, Loken, and Wollman

Date of Issued Opinion February 26, 2016

Decided Petition for review denied

Docket Number 15-2004

Counsel Gail E. Boliver for Petitioner and Aaron Nelson for Respondent

Author Circuit Judge Bye

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 03/31/2016 10:58 AM     8th Circuit     Comments (0)  

  Oxygene v. Lynch -- Fourth Circuit
To Stay or Not to Stay: Removal of Haitian Refugee under Convention Against Torture Act Contingent on Showing of Specific Intent to Torture

Areas of Law: Immigration Law

Issue Presented: Whether a Haitian refugee who committed four felonies in the United States should be granted deferral of removal under the Convention Against Torture ("CAT").

Brief Summary: In a published opinion written by Judge Motz, the United States Court of Appeals for the Fourth Circuit ("the court") held that Wilerms Oxygene ("Oxygene") failed to establish that Haitian authorities would detain him (if deported) with the specific intent to inflict torture--a showing required under CAT. As a result, the court denied Oxygene's application for deferral of removal under CAT.

Extended Summary:
In 1994, Oxygene and his family fled political violence in Haiti and were admitted to the United States as refugees. In 2001, five years after he became a Legal Permanent Resident, Oxygene was convicted in a Virginia court of burglary, grand larceny, robbery, and use of a firearm to commit a felony. In 2011, the Department of Homeland Security commenced a removal proceeding against him. Shortly thereafter, Oxygene applied for deferral of removal under the Convention Against Torture Act ("CAT"). His application was heard by an Immigration Judge ("IJ").

Relying on U.S. Department of State country reports, the IJ found that "on several occasions police 'allegedly beat or otherwise abused detainees and suspects' and 'corrections officers use[d] physical punishment and psychological abuse to mistreat prisoners.'" The IJ further found that "approximately seventy percent [of prisoners] 'suffered from a lack of basic hygiene, malnutrition, poor quality health care, and water-borne illness.'" Notwithstanding these findings, the IJ, relying heavily on In re J-E, 23 I. & N. Dec. 291 (BIA 2002), ultimately denied Oxygene's application. The IJ found that Oxygene had failed to demonstrate it was "more likely than not" that he would suffer torture upon removal to Haiti.

Oxygene timely appealed this denial to the BIA and included new medical evidence regarding his PTSD and depression that he alleged impacted his CAT claim. The BIA affirmed the removal order, indicating that Oxygene failed to show how the new evidence would change the result of the case.

Oxygene appealed to the United States Court of Appeals for the Fourth Circuit. First, the Fourth Circuit explained that it had limited jurisdiction over Oxygene's appeal due to his prior aggravated felony conviction. The sole issue considered by the court on appeal was whether In re J-E states the correct legal standard for intent in CAT claims.

The Fourth Circuit ultimately held that In re J-E's "specific intent" standard for CAT claims is correct and, as a result, denied Oxygene's application for deferral of removal under CAT. In reaching this conclusion, the court first looked to the specific language of the original CAT treaty, which defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The court explained that this is an express understanding of how the United States wished executive and judicial bodies to later interpret this treaty when it was implemented into domestic law. In 1998, Congress enacted the Foreign Affairs Reform and Restructuring Act ("Act") to implement CAT. In that Act, Congress defined torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The Act also said that "in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering." The court emphasized that this statutory language indicated specific intent was meant to be the standard under which CAT is assessed. Lastly, the court turned to In re J-E, explaining that the decision is consistent with the prior legislative history regarding the "specific intent" standard and is almost identical to Oxygene's. As a result, the court stated that In re J-E should be given deference and Oxygene's application for deferral of removal under CAT should be denied because he only offered evidence of general, rather than specific, intent that the Haitian government would torture him upon his deportation to Haiti.

To read the full opinion, click here.

Panel: Judges Motz, King, and Keenan.

Argument Date:
12/08/2015

Date of Issued Opinion: 02/22/2016

Docket Number: Case No. 14-2380

Decided: Denied in part and dismissed in part by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Tamara L. Jezic, YACUB LAW OFFICES, Woodbridge, Virginia, for Petitioner. Jeffrey R. Leist, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division; Ernesto H. Molina, Jr., Assistant Director; Gladys M. Steffens Guzman, Trial Attorney, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Judge Motz

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/31/2016 09:21 AM     4th Circuit     Comments (0)  

March 29, 2016
  Ojo v. Lynch -- Fourth Circuit
Board of Immigration Appeals Must Recognize State Adoption Decisions

Areas of Law: Immigration Law, Administrative Law

Issue Presented: Whether the Board of Immigration Appeals must recognize state court orders determining when an individual has been adopted.

Brief Summary: Adebowale O. Ojo, a native of Nigeria and the adopted son of a U.S. citizen ("USC"), petitioned the United States Court of Appeals for the Fourth Circuit for review of a decision by the Board of Immigration Appeals ("BIA") denying Ojo's motion to reopen his removal proceedings. In denying the motion, the BIA relied on its administrative interpretation of INA § 1101(b)(1)(E)(i), relating to the adoption of children by USCs. The Fourth Circuit vacated the BIA decision and remanded for further proceedings because, contrary to what the BIA asserted INA § 1101(b)(1)(E)(i) is not ambiguous and thus does not contain a gap that Congress left for the BIA to fill. Moreover, the BIA's interpretation, which summarily disregards valid state court orders, is contrary to law.

Extended Summary: Ojo was born in Nigeria on August 28, 1983, and lawfully entered the U.S. in August 1989. Two weeks later, when Ojo was six years old, his uncle, a USC, became Ojo's legal guardian. More than ten years later, when Ojo was sixteen years old, Ojo's uncle filed a petition to adopt Ojo. On January 24, 2001, after Ojo turned seventeen, the Circuit Court for Montgomery County, Maryland entered a judgment of adoption. Between 2009 and 2012, Ojo was convicted of two drug-related offenses. The offenses qualify as aggravated felonies under INA § 1101(a)(43)(B). In May 2013, the Department of Homeland Security ("DHS") charged Ojo with removability from the U.S. under INA § 1227(a)(2)(A)(iii) due to his aggravated felonies and the DHS' refusal to recognize his derivation of citizenship.

On May 5, 2014, an immigration judge determined that Ojo was removable from this country by clear and convincing evidence. The judge explained that because Ojo turned sixteen on August 28, 1999, and was not adopted by a USC until he was seventeen years old, he did not qualify as an adopted child under INA § 1101(b)(1)(E). On appeal to the BIA, Ojo advised the BIA that his adoptive father would seek a nunc pro tunc order (a court ruling that applies retroactively to correct an earlier ruling) from the Montgomery County Circuit Court specifying that Ojo's adoption became effective before he turned sixteen years old. The BIA ruled that Ojo was seventeen years old when adopted and did not qualify as an adopted child under INA § 1101(b)(1)(E) for the purposes of derivative citizenship under INA § 1431. In November 2014, Ojo filed a motion to reopen his removal proceedings, supported by a nunc pro tunc order entered on October 29, 2014, by the Montgomery County Circuit Court. That order made Ojo's adoption effective on August 27, 1999, the day before he turned sixteen years old. The BIA denied Ojo's motion to reopen, observing that it did not recognize nunc pro tunc adoption decrees after a child reaches the age limit for both the filing of the adoption petition and decree. This is the BIA's Cariaga/Drigo precedent. On July 8, 2015, as the Fourth Circuit's review was pending, the BIA modified the Cariaga/Drigo precedent in its Matter of Huang decision, 26 I&N Dec. 627 (BIA 2015). In Huang, the BIA stated that it would recognize a nunc pro tunc order relating to an adoption "where the adoption petition was filed before the beneficiary's 16th birthday."

Applying a Chevron analysis, the Fourth Circuit held that the plain meaning of the term "adoption" in the relevant sections of the INA was not ambiguous. Where Congress speaks clearly, the statutory language controls and the BIA is not entitled to deference. The Fourth Circuit found no indication in the text of § 1101(b)(1)(E)(i) that Congress intended to alter or displace the plain meaning of "adopted." Therefore, a child is "adopted" for purposes of § 1101(b)(1)(E)(i) on the date that a state court rules the adoption effective, without regard to the date on which the act of adoption occurred. The federal government has "deferred to state-law policy decisions with respect to domestic relations." United States v. Windsor, 133 S.Ct. 2675, 2691 (2013). Therefore, the date on which an individual has been "adopted" under § 1101(b)(1)(E)(i) will depend on the effective date of the adoption as set forth in the relevant state court instructions. Carachuri-Rosendo v. Holder, 560 U.S. 563, 576-78 (2010) (explaining that federal immigration court must look to state conviction itself to determine whether state offense is "aggravated felony" under the INA).

According to the Fourth Circuit, it was contrary to law for the BIA not to recognize the nunc pro tunc order in Ojo's case. As a result, the BIA abused its discretion in denying Ojo's motion to reopen his removal proceedings.

To read the full opinion, click here.

Panel: Judges Motz, King, and Keenan

Argument Date: 12/08/2015

Date of Issued Opinion: 02/16/2016

Docket Number: No. 15-1138

Decided: Vacated and remanded by published opinion

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Henry Caleb Griffin, GRIFFIN AND GRIFFIN, Annapolis, Maryland, for Petitioner. Sefanie A. Svoren-Jay, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent

Author of Opinion: Judge King

Case Alert Supervisor: Professor Renée Hutchins

Edited: 03/29/2016 at 11:50 AM by Renee Hutchins

    Posted By: Renee Hutchins @ 03/29/2016 09:09 AM     4th Circuit     Comments (0)  

March 21, 2016
  Sixth Circuit: Probation order may allow search without reasonable suspicion
Case: U.S. v. Tessier

Area of law: Fourth Amendment; Probation

Issue: May a probationer whose probation order contains a search condition be subjected to a search in the absence of reasonable suspicion?

Brief summary: A probationer who'd pleaded guilty to a federal child-pornography charge appealed the district court's denial of his motion to suppress evidence of child pornography. The evidence was found during a warrantless search of his residence, which police conducted without reasonable suspicion. Addressing a question "left open" by the Supreme Court's Knights decision, the Sixth Circuit affirmed, noting that the probationer had signed off on broad consensual language in his probation order: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time."

Extended summary: The probationer pleaded guilty to a federal child-pornography charge but reserved the right to challenge the denial of his motion to suppress evidence of child pornography, which was found during a search of his residence without reasonable suspicion. At the time of the search, the probationer was on probation for a felony conviction for sexual exploitation of a minor. The probationer's probation order contained the state's "standard" search condition: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time." The probationer appealed the district court's denial of his motion to suppress the evidence, arguing that the search violated his Fourth Amendment rights due to the lack of reasonable suspicion under the totality of the circumstances. He relied on the Supreme Court's decision in United States v. Knights.

As the Sixth Circuit observed, Knights held that reasonable suspicion is sufficient to uphold a search of a probationer who is subject to a search condition. But Knights left open the issue of "the constitutionality of a suspicionless search" because, in that case, the search "was supported by reasonable suspicion." In this case, however, there was no reasonable suspicion. The officers, as part of a general sweep, searched all residences of known sex offenders in the county. When they entered the probationer's residence, they found a laptop computer containing pornographic material and seized it.

Despite the lack of reasonable suspicion, the Sixth Circuit upheld the search. The court reasoned that under the standard search condition that applies to all probationers in Tennessee, the probationer agreed to a warrantless search of his property and residence "by any . . . law enforcement officer, at any time." The probationer signed the search permit as a condition of his probation. Just above his signature, the language provided: "I have read or have had read to me, the conditions of my Probation. I fully understand them and agree to comply with them." He also signed a specialized-conditions form below other language that stated, "I understand that if I do not agree with any condition, I have a right to petition the Sentencing Court for a modification. Any release from these instructions will be provided to me in writing." The probationer did not petition for modification, and thus his consent to be searched was valid when the search was made.

Panel: Circuit Judges Eugene Siler, Julia Gibbons, and John Rogers.

Date of issued opinion: February 18, 2016

Docket number: 15-5284

Decided: Affirmed.

Counsel: ARGUED: R. David Baker, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Gwendolyn Stamper, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: R. David Baker, Andrew Brandon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Gwendolyn Stamper, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Author of opinion: Circuit Judge John Rogers.

Case alert author
: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0042p-06.pdf

Edited: 03/21/2016 at 11:20 AM by Mark Cooney

    Posted By: Mark Cooney @ 03/21/2016 11:13 AM     6th Circuit     Comments (0)  

March 16, 2016
  Harris v. Fischer
Headline: Second Circuit Reiterates that Inmates Retain a Limited Right to Bodily Privacy Under the Fourth Amendment, and Vacates Dismissal of Female Prisoner's Challenge to a Male Guard's Inspection of Her Genitalia

Area of Law: Prisoners' Rights

Issue Presented: Whether the district court erred in granting the defendant prison officials' motion for summary judgment when there were claims that the defendants violated the plaintiff's Fourth and Eighth Amendment rights by holding her down so that a male officer could inspect her genitalia.

Brief Summary: The plaintiff, Audra Lynn Harris, was incarcerated at Bedford Hills Correctional Facility, located in Bedford Hills, New York, for burglary and criminal contempt. Representing herself, she brought suit in the United States District Court for the Southern District of New York, asserting multiple claims relating to her treatment in prison. The particular focus of this appeal was her claim that, after she ripped open a mattress and tried to use the mattress's cotton to block prison officials from watching her while she changed clothes, she was subjected to a strip search in which a male officer inspected her genitalia to see if she was hiding cotton there. Although the district court dismissed this claim on summary judgment, the Second Circuit vacated, holding that there were material factual disputes and that the district court's analysis rested on an incomplete assessment of law, particularly the Fourth Amendment's protection of an inmate's right to bodily privacy.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...c88880246e4/2/hilite/

Extended Summary: Plaintiff, Audra Lynn Harris, alleges that while she was an inmate at Bedford Hills Correctional Facility ("the facility"), four corrections officers violated the Fourth and Eighth amendments when they infringed upon her bodily privacy. When Harris was incarcerated at the facility, she received a designation indicating that she showed symptoms of major/serious mental illness and needed care, treatment, and support from the mental health staff. In addition to a plethora of other grievances and allegations, Harris alleged an incident in which she was ordered into an observation room and directed to change into a smock. When she attempted to put the smock on over her clothing to get undressed, the officers knocked her down and pulled off her clothing, injuring her in the process. After the officers threw the smock back at Harris, she requested medical assistance, but the officers refused. Because of this incident, Harris pulled cotton out of her mattress and used water to paste it onto the windows of the observation room.

When the defendants, Officers Ella Anderson, Valerie Bryant, Robin Trotter, and Michael Miller, entered her room to remove the cotton from the windows, Miller asked Harris if she had any more cotton. When Harris said no, the three female officers, Anderson, Bryant, and Trotter, threw Harris on the ground, lifted her smock, and forcibly opened her legs to allow the male officer, Miller, to visually inspect her genitalia for additional cotton. In her opposition to the defendants' summary judgment motion, Harris provided affidavits and sworn testimony regarding this incident. The defendants provided no such proof to dispute the incident, but merely asserted in their briefs that it did not occur. The district court dismissed Harris's complaint in full, and Harris appealed.

Under the Fourth Amendment of the United States Constitution, the prohibition of unreasonable searches does not apply within the confines of a prison cell. However, inmates do have a limited right to bodily privacy under the Fourth Amendment. When an inmate brings a Fourth Amendment claim challenging an isolated search (as opposed to a prison regulation or policy), courts apply the standard set forth in the Supreme Court's Bell v. Wolfish decision. Under this framework, courts must do a case-specific balancing of the need for the search against the invasion of personal rights that the search entails. This balancing test requires courts to consider "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted."

In applying this balancing test to these facts, the Second Circuit noted that a visual body cavity search, like the one conducted here, is particularly invasive, especially when conducted by the opposite sex. The court also noted that there was little evidence about the justification for the search, adding that there was no evidence that "possessing cotton, in one's genitalia or elsewhere, violates prison rules." The court emphasized that "inmates retain a limited right of bodily privacy under the Fourth Amendment," and vacated the district court's dismissal of this claim, remanding it for reconsideration in light of this discussion.

As to the plaintiff's Eighth Amendment claim that the search violated her right to be free from cruel and unusual punishment, the Second Circuit concluded that Harris' allegations could lead a factfinder to decide that the defendants used force maliciously and sadistically. Thus, it similarly vacated the district court's dismissal of this claim and remanded it for reconsideration. It also suggested that on remand, the district court consider appointing pro bono counsel for Harris - who had been representing herself - and permitting the parties to take further discovery.

Panel: Chief Judge Katzmann; Circuit Judge Kearse; District Judge Schofield, sitting by designation

Argument Date: 01/15/2016

Argument Location: New York, NY

Date of Issued Opinion: 03/15/2016

Docket Number: 14-2957

Decided: Vacated and Remanded

Case Alert Author: Ryan Koleda

Counsel: Arun S. Subramanian, Susman Godfrey L.L.P., New York, N.Y., for Plaintiff-Appellant; David Lawrence III, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Michael S. Belohlavek, Senior Counsel, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Defendants-Appellees

Author of Opinion: Per Curiam

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Emily Gold Waldman

    Posted By: Emily Waldman @ 03/16/2016 09:38 PM     2nd Circuit     Comments (0)  

  Steve Klein v. City of Laguna Beach
Area of Law: Civil Rights, Civil Procedure, Remedies

Headline: Ninth Circuit panel rejected the district court's application of the Farrar-exception in determining attorneys' fees under 42 U.S.C. § 1988(b) because (1) the plaintiff sought only nominal damages, (2) the extent of a plaintiff's success is the "most critical factor" in determining fees, and (3) the plaintiff achieved its primary goal of removing certain city regulations on speech.

Issues Presented: Under 42 U.S.C. § 1988(b), should the Farrar-exception apply when the plaintiff, the prevailing party, sought only nominal damages and achieved its primary objective of removing certain provisions in a city ordinance?

Does the Erie Doctrine require the Ninth Circuit to apply a state law permitting the award of attorneys' fees to plaintiffs prevailing in federal court on state law claims when a plaintiff has not prevailed on its state law claim and the remaining matters before the federal court are federal law claims?

Brief Summary: In 2008, Steve Klein ("Klein") brought an action under federal and state constitutions in district court after the city manager of Laguna Beach rejected Klein's application to use amplified speech to conduct religious activities along the public grounds bordering Laguna Beach High School. During the course of the litigation, the City of Laguna Beach ("City") altered its ordinances regulating the use of amplification devices during certain times in public locations. After a Ninth Circuit panel addressed issues in the case for the second time on appeal, Klein was awarded nominal damages on "three of his four as-applied challenges under federal law." When Klein, as the prevailing party, moved for attorneys' fees under 42 U.S.C. § 1988(b), the district court denied the motion, applying the Farrar-exception which prohibits an award of attorney's fees when a plaintiff seeks compensatory damages but nevertheless receives only nominal damages. The district court also denied Klein fees under California Civil Procedure Code section 1021.5, which permits plaintiffs who prevail on California state law claims in federal court to collect attorneys' fees. The district court rejected Kein's argument that, because he pled a California state law claim, he is entitled to fees under the California statute even though he lost on the claim. Klein appealed a third time to challenge the district court's denial of attorneys' fees on Klein's state and federal claims.

With respect to the denial of attorney's fees under 42 U.S.C. § 1988(b), the panel vacated and remanded because (1) a substantial monetary payout was not obtainable absent a compensatory damage request, and Klein's action did not seek to recover private damages; (2) Klein only sought nominal damages of $4,000 under California law; (3) a relief requested under state law does not bear on a determination as to what legal standard applies to motions under federal law; (4) comparing the damages awarded and the amount sought is a significant consideration; and (5) the extent of the success obtained is "'the most critical factor,'" Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436); and (6) Klein obtained the primary relief sought when "the City voluntarily repealed all challenged portions of the sound ordinance as a result of [Klein's] lawsuit." Klein II, 533 F. App'x at 755.

With respect to denial of attorney's fees under California Civil Procedure Code section 1021.5, the panel affirmed the district court's denial of attorneys' fees on the state claim on the grounds that the Erie doctrine does not require a federal court to apply state law when determining a federal law claim and, since Klein was only a prevailing party on his federal claims, and "since we address federal, not state claims, the federal common law of attorney's fees, and not [state] law, is the relevant authority." Citing Modzelewski v. Resolution Trust Corp., 14 F.3d 1375, 1379 (9th Cir. 1994).

Significance: The Ninth Circuit panel construed the Farrar-exception to 42 U.S.C. § 1988(b) narrowly, holding that Farrar only applies to plaintiffs seeking compensatory damages. The panel also held that the Erie doctrine, with respect to a state law regulating fees on state law claims brought in federal court, does not govern a federal court's determination of fees in connection with non-prevailing state law claims.

Extended Summary: On December 3, 2008, Steve Klein ("Klein") brought an action in district court seeking relief under the United States Constitution, the California Constitution, and the California Bane Act ("Bane Act"). Klein's claims arose out of a rejection of his application to use amplified speech to conduct religious activities along the public grounds bordering Laguna Beach High School. The rejection was pursuant to Laguna Beach Municipal Code section 5.40.010, which authorized the city manager to exercise unconditional discretion over the approval or denial of sound amplification permits.

During the course of the litigation, the Laguna Beach City Council repealed Chapter 5.40 of the Municipal Code and amended Code provision, section 7.25.120. Klein then amended his complaint to challenge the amended ordinance, which expressly precluded Klein's request to use sound amplification equipment within 300 feet of Laguna Beach High School and City Hall and in "the busy downtown commercial area of the City" between the hours of 5:00 p.m. and 6:00 p.m."

The case went before the Ninth Circuit three times on appeal. On the first appeal, a Ninth Circuit panel reversed the district court's ruling the ordinance was "a content neutral, reasonable restriction on time, place and manner of speech," holding that the regulation was not "narrowly tailored to the City's interests," that the "fundamental interest in the protection of all people's constitutional rights" favored a finding for Klein; and that the City had in place other regulations "prohibiting excessive and disruptive sounds."

Subsequent to the decision on the first appeal, the parties made cross-motions for summary judgment after the City made another amendment to Code provision, section 7.25.120 by eliminating the proximity limitations and extending the hours during which amplified speech could be performed. On the second appeal, a Ninth Circuit panel upheld the district court's ruling awarding nominal damages on Klein's assertions that the repealed permit requirements constituted impermissible prior restraint and that the speech restriction in the City's downtown area constituted a violation of the First Amendment. Although the Ninth Circuit panel upheld the district court's ruling that the City's proximity limitations on amplified speech near high schools was constitutional, the Court reversed the district court's denial of Klein's summary judgment motion concerning the restrictions on speech near City Hall. As a result, "Klein therefore won nominal damages on three of his four as-applied challenges under federal law."

The district court's denial of Klein's motion for attorney's fees was the basis for the third appeal. The district court concluded that under 42 U.S.C. § 1988(b), nominal damages made Klein a "prevailing party," but under Farrar, Klein's victory was "technical" and therefore he had no entitlement to attorney's fees. See Farrar, 506 U.S. at 115 (1992). Applying the Farrar factors, the district court concluded that Klein's nominal damage award achieved no "public goal," was a "de minimis" success, and Klein's rights under the First Amendment were "not so significant as to overcome the other two factors, which counsel strongly against an award of fees." Because Klein did not prevail on his state law claims, the district court could not grant Klein's motion for fees under California Civil Procedure Code section 1021.5.

On de novo review, at issue before the Ninth Circuit was whether the district court determined Klein's attorney's fees by applying the correct legal standard. Generally, in determining the reasonableness of fees, district courts apply the "lodestar method," which is a procedure by which courts multiply a reasonable hourly rate by "the number of hours the prevailing party reasonably expended on the litigation . . . ." Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013) (quoting Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006)). The result of the lodestar method may be adjusted according to factors identified in Hensley, 461 U.S. at 433 (1983). Because the extent of the success achieved is "the most critical factor" in determining whether fees are reasonable, Farrar, 506 U.S. at 114 (quoting Hensley, 461 U.S. a 436), without applying the lodestar method or the Hensley procedure, a court may award low or no fees when plaintiffs "seek[] compensatory damages but receive[] no more than nominal damages." Id. at 115.

Klein argued that the Farrar-exception does not apply when a plaintiff does not seek compensatory damages and only seeks to obtain nominal damages. The panel agreed because (1) a substantial monetary payout was not obtainable absent a compensatory damage request, and Klein's action did not seek to recover private damages," Farrar, 506 U.S. at 114 (quoting Riverside v. Rivera, 477 U.S. 561, 585 (1986) (Powell, J., concurring in the judgment)); (2) Klein only sought nominal damages of $4,000 under the Bane Act; and (3) a relief requested under state law does not bear on a determination as to what legal standard applies to 42 U.SC § 1988 motions.

The district court concluded that there was "no principled basis to treat differently a plaintiff who does not seek compensatory damages because he cannot prove actual injury from a plaintiff who seeks compensatory damages and fails to prove actual injury . . . ." The Court disagreed, holding that the Farrar exception does not control because:

"Klein's primary goal was to change the City's policy, not to secure compensatory damages. Although Klein did not receive a permanent injunction and declaratory relief, the district court appears to have denied such relief only because the City voluntarily eliminated the policies about which Klein complained. It is more accurate to think of Klein's request for an injunction as being mooted when the City changed the law to accommodate Klein's planned conduct, rather than denied on its merits. Klein achieved the outcome he sought when he filed this lawsuit, and Farrar 'does not control' in these circumstances."

The second issue before the paenl was whether California Civil Procedure Code section 1021.5, which permits plaintiffs who prevail on California claims in federal court to collect attorneys' fees, governed the Court's determination of fees for Klein's non-prevailing state law claims. The Court answered this question in the negative because (1) the Erie Doctrine does not require a federal court to apply state law when determining a federal law claim; (2) the issues before the Court involved federal law claims, not the claims on which Klein did not prevail; and (3) because the court was addressing federal law claims and not state law claims, "the federal common law of attorney's fees, and not [state] law, [was] the relevant authority." Modzelewshi v. Resolution Trust Corp., 14 F.3d 1375 (9th Cir, 1994). In other words, the Erie Doctrine does not govern a federal court's determination of fees in connection with non-prevailing state law claims.

The Court affirmed, with respect to the district court's denial of attorney's fees under California Civil Procedure Code section 1021.5, and vacated and reversed, with respect to the district's court application of the Farrar exception in determining Klein's fees under 42 U.S.C. § 1988(b).

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/14/13-56973.pdf

Panel: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Jack Zouhary, District Judge.

Argument Date: December 10, 2015

Date of Issued Opinion: January 14, 2016

Docket Number: 13-56973

Decided: AFFIRMED in part, VACATED in part, and REMANDED.

Case Alert Author: Andre Clark

Counsel: Michael J Kumeta, La Mesa, California; William G. Gillespie (argued), Bonsall, California, for Plaintiffs-Appellants. Philip D. Kohn, Michelle D. Molko (argued), Rutan & Tucker, LLP, Costa Mesa, California, for Defendant-Appellee.

Author of Opinion: Ronald M. Gould, Circuit Judge:

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/16/2016 06:23 PM     9th Circuit     Comments (0)  

  Sgt. Jeffrey S. Sarver v. Nicolas Chartier
Headline: California's Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute precluded a right-of-publicity claim arising out of the film The Hurt Locker on the grounds that the film involved an issue of public concern and the plaintiff failed to state and substantiate a legally sufficient claim.

Area of Law: California's anti-SLAPP statute, Right of Publicity

Issues Presented:
Did the act or acts of which the plaintiff complained of involve a matter of public concern under California's Anti-SLAPP statute?

Was the plaintiff able to demonstrate his right-of-privacy claim was legally sufficient with a reasonable probability of prevailing on his claim?

Brief Summary: A journalist wrote an article focusing on Sargent Sarver's life and experiences during the Iraq War and within his Army unit. The journalist later wrote the screenplay for the film that became The Hurt Locker. Sargent Sarver alleged he never consented to the use of his name and likeness in the article or film, that the way he was portrayed harmed his reputation, and thus filed various claims - including a right of publicity claim. The defendants filed a motion to strike Sarver's complaint under California's anti-SLAPP statute. The district court granted the motion on the grounds that (1) the defendants' speech was a matter of public concern and thus protected by the First Amendment, and (2) the film's use of Sarver's identity was transformative. Applying the anti-SLAPP statute's two-step approach, the Ninth Circuit panel affirmed, holding that (1) because the Iraq War was a matter of public concern and (2) Sarver could not state and substantiate a legally sufficient right of publicity claim, the lower court did not err in granting the defendants' anti-SLAPP motions.

Significance: In matters of public concern, journalists, screenplay writers, and other artists may transform the stories of real individuals into art - be it articles, movies, or plays - so long as the speech does not appropriate the economic value of a performance or persona, nor seek to capitalize from a celebrity's image in commercial advertisements.

Extended Summary: Plaintiff Sarver was a Sargent in the United States Army during the Iraq War. In December 2004, journalist Mark Boal was embedded in Sarver's unit, which was stationed in Iraq and whose principal duty was to dispose of improvised explosive devices (IEDs). Boal spent a significant amount of time following Sarver, observing him while on and off duty, taking pictures and video of Sarver, and interviewed Sarver once he was back in the States.

In August 2005, Boal wrote an article focusing on Sarver's life and experiences in Iraq and had it published in Playboy. A condensed version was published in Reader's Digest. Boal later wrote the screenplay for the film that became The Hurt Locker. Sarver alleges (1) he never consented to the use of his name or likeness in either of the articles, (2) he attempted to remove portions of the article before its publication in Reader's Digest, (3) the movie's main character mirrored his life story, and (4) that the portrayal of the movie's main character falsely portrayed him in a way that harmed his reputation.

In March 2010, Sarver filed suit in the District Court of New Jersey against Boal, the film's director, its producer(s), and other corporate defendants. The complaint alleged misappropriation of Sarver's likeness and right of publicity, false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and negligent misrepresentation. The case was transferred to the Central District of California pursuant to 28 U.S.C. § 1404(a).

On February 1, 2011, the defendants filed a motion to strike Sarver's complaint under California Civil Procedure Code § 425.15, California's Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute. For the defendants' anti-SLAPP motions to succeed, they must first show that "'the act or acts of which the plaintiff complains were taken in furtherance of [the defendants']right of petition or free speech under the United States or California Constitution in connection with a public issue."' Second, if defendants satisfy this initial burden, the burden shifts to the plaintiff to "establish a reasonable probability that the plaintiff will prevail on his or her . . . claim." Id. In other words, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" Hilton v. Hallmark Cards, 599 F.3d 18 SARVER V. CHARTIER 894, 903 (9th Cir. 2009) (quoting Wilson v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002)). The district court granted defendants' motion concluding that California's anti-SLAPP statute applied because the defendants were engaged in the exercise of free speech in connection with a public issue, and also that "[e]ven assuming that [Sarver] and Will James share similar physical characteristics and idiosyncrasies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie."

Sarver timely appealed to the U.S. Court of Appeals for the Ninth Circuit. Before addressing the merits of Sarver's claim, the Ninth Circuit panel had to determine (1) whether the district court properly applied California law instead of New Jersey law, and (2) whether the defendants' anti-SLAPP motion was timely filed.

The Ninth Circuit panel concluded that the district court did not err in applying California law under the Restatement (Second) of Conflict of Laws sections 6 and 145. The panel held that California had the most significant relationship to the current litigation, which would be sufficient to overcome any presumption of Sarver's domicile, whatever Sarver's domicile may have been. The panel also rejected Sarver's contention that defendants' anti-SLAPP motion was not timely filed, holding that the motion was timely filed under Federal Rule of Civil Procedure section 56(b). The panel explained that, when a procedural state law directly collides with a Federal Rule of Civil Procedure, district courts are not obligated to adhere to the procedural state law.

In determining the merits of the defendants' anti-SLAPP motions, the first issue was whether the act or acts, of which the plaintiff complained, involved a matter of public concern and thus qualified as protected speech under the United States Constitution or the California Constitution. Sarver attempted to narrow the issue by arguing that the acts were not of public concern since he was not personally in the public's eye before the film. The panel identified three categories of public issues - including topics that are of widespread, public interest - and held that the Iraq War and the use of IEDs was a matter of significant and sustained public attention. The court held that, because the focus was on Sarver's conduct and experiences during the Iraq War, California's standard for finding an issue of public concern was met.

The panel then considered whether Sarver was able to demonstrate that his right-of-privacy claim was legally sufficient with a reasonable probability of prevailing on his claim. After reviewing past decisions involving right of publicity claims, the panel held that Sarver was unable to state and substantiate a legally sufficient right of publicity claim on the grounds that the challenged speech (1) did not exploit the economic value of any performance or persona Sarver had worked to develop, (2) is not proposing a commercial transaction, and (3) took the raw materials gathered about Sarver's life and Iraq experiences and transformed them into an artistic movie.

The panel further ruled that, even if California's right of publicity law would apply in this case, it would be a content-based restriction and thus unconstitutional without a showing of a compelling state interest in preventing the defendants' speech.

To read full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/17/11-56986.pdf

Panel: Diarmuid F. O'Scannlain, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges.

Argument Date: May 9, 2013

Date of Issued Opinion: February 17, 2016

Docket Number: No. 11-56986

Decided: Affirmed.

Case Alert Author: Melissa A. Padilla

Counsel:

Michael R. Dezsi (argued), Law Office of Michael R. Dezsi, PLLC, Detroit, Michigan, for Plaintiff-Appellant.

Jon-Jamison Hill, Kahan & Gorry, Beverly Hills, California; and Jeremiah T. Reynolds, Kinsella Weitzman Iser Kump & Aldisert LLP, Santa Monica, California (argued), for Defendant-Appellee.

Author of Opinion: Hon. Diarmuid F. O'Scannlain

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/16/2016 06:21 PM     9th Circuit     Comments (0)  

  Sophia Daire v. Mary Lattimore, Warden - Ninth Circuit en banc
Headline: Ninth Circuit en banc overruled its own precedent and established that the standard for determining when a criminal defendant's Sixth Amendment right to counsel is violated by ineffective counsel is governed by Strickland v. Washington (1984) 466 U.S. 668 in non-capital sentencing proceedings.

Area of Law: Criminal Law; Claims for Ineffective Assistance of Counsel in Noncapital Sentencing Proceedings

Issue Presented: Notwithstanding preexisting Ninth Circuit precedent to the contrary, does Strickland v. Washington, 466 U.S. 668, 694 (1984), govern claims for ineffective assistance of counsel in noncapital sentencing proceedings?

Significance: It is clearly established that Strickland v. Washington governs claims for ineffective counsel, even in noncapital sentencing proceedings.

Brief Summary: While serving a 40 year "three strikes" prison sentence after a conviction for first degree burglary, defendant Daire filed a writ of habeas corpus. She claimed her attorney provided ineffective assistance of counsel during sentencing under the standard articulated in Strickland, 466 U.S. at 687.

On federal habeas review, the district court held, according to Ninth Circuit precedent, that the application of the Strickland standard to noncapital sentencing proceedings was not "clearly established Federal law" for purposes of 28 U.S.C. § 2254(d)(1). The statute provides that an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

The Ninth Circuit panel voted to rehear the case en banc to reconsider circuit precedent. It remanded the case back to the three-judge panel to apply the standard articulated in Strickland and overruled Cooper - Smith v. Palmateer, 397 F.3d 1236, Davis v. Grigas, 443 F.3d 1155 and other similar contrary decisions.

Extended Summary: After defendant was convicted by a California jury of first degree burglary, she claimed that her attorney, during sentencing, provided ineffective assistance of counsel under the standard articulated in Strickland, 466 U.S. at 687.

The Ninth Circuit voted to rehear this case en banc to reconsider Ninth Circuit precedent holding that there was no "clearly established" federal law on the question of whether Strickland v. Washington, 466 U.S. 668, 694 (1984), governs claims for ineffective assistance of counsel in noncapital sentencing proceedings. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005) and Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006).

The panel had held that it was bound by Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005), which held that, "[s]ince Strickland, the Supreme Court has not decided what standard should apply to ineffective assistance of counsel claims in the noncapital sentencing context. Consequently, there is no clearly established law in this context. Because the Supreme Court has not clearly established what constitutes ineffective assistance in this context, other courts are free to do so."

Before Cooper, the United States Supreme Court applied Strickland to a noncapital sentencing proceeding in Glover v. United States, (2001) 531 U.S. 198. Furthermore, in Lafler v. Cooper (2012) 132 S.Ct. 1376, 1388, the Supreme Court ruled that Glover established that there exists a right to counsel during sentencing in noncapital cases. Even though sentencing does not concern the defendant's guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because "any amount of additional jail time has Sixth Amendment significance."

Accordingly, the Ninth Circuit en banc overruled its prior precedent and remanded to the panel that heard the appeal.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/09/12-55667.pdf

Panel: Sidney R. Thomas, Chief Judge, Stephen Reinhardt, M. Margaret McKeown, Richard C. Tallman, Johnnie B. Rawlinson, Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea, N. Randy Smith, Mary H. Murguia and Paul J. Watford, Circuit Judges

Argument Date: The en banc court unanimously concluded the case was suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Date of Issued Opinion: February 9, 2016

Docket Number: 12-55667

Decided: January 12, 2016

Case Alert Author: Mia Lomedico

Counsel:
Sara J. O'Connell, Covington & Burling LLP, San Diego, California, for Petitioner-Appellant.

Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Lance E. Winters, Senior Assistant Attorney General; Kenneth C. Byrne, Supervising Deputy Attorney General; Xiomara Costello, Deputy Attorney General, Los Angeles, California, for Respondent-Appellee.

Author of Opinion: Per Curiam

Circuit: Ninth
Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/16/2016 06:19 PM     9th Circuit     Comments (0)  

  In re Grand Jury Investigation, United States of America v. Doe Corporations and Corporations
Area of Law: Civil Procedure and Evidence, Exception to Attorney-Client Privilege

Headline: A district court must review in camera individual subpoenaed documents before deciding whether they should be produced under the crime-fraud exception to the attorney-client privilege.

Issue Presented: Whether a district court must examine individually subpoenaed documents to determine that the specific attorney-client communications for which production is sought are "sufficiently related to" and were made "in furtherance of the intended, or present, continuing illegality" under the crime-fraud exception to the attorney-client privilege.

Brief Summary: Suspecting that the appellant Corporation's advertisements were "inadequately inform[ing] consumers of potential risks" of a surgical device allegedly in violation of the Food, Drug, and Cosmetic Act ("FDCA"), the Food and Drug Administration ("FDA") opened an investigation and sent warning letters to the Corporation and a few medical centers in California. In response to the FDA's warning letters, attorneys for the Corporation and several medical centers sent letters to the FDA. The government alleged that these responses contained false statements designed to obstruct the FDA investigation. Grand jury subpoenas were issued to the attorneys to produce all communications and retainer agreements in relation to the FDA investigation. All three attorneys failed to fully comply with this order and the government filed a motion to compel. The district court granted the motion, without conducting an in camera review of the individual documents, on the basis that the government had established a prima facie case of crime-fraud.

The Ninth Circuit panel agreed with the district court that "in camera review is not necessary during step one [of the crime-fraud inquiry] to establish a prima facie case that 'the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme'." However, the panel did not agree with the district court's order to produce all the subpoenaed documents without previously conducting an in camera review of the individual documents themselves to determine that the specific attorney-client communications that were sought is "'sufficiently related to' that were made 'in furtherance of the intended, or present, continuing illegality.'" In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090 (9th Cir. 2007).

Significance: This decision establishes a precedent in the Ninth Circuit to require in camera review of subpoenaed documents to determine which individual documents contain communications that are "sufficiently related to" and were made "in furtherance of the intended, or present, continuing illegality," which will allow the party to invoke the crime-fraud exception to the attorney-client privilege.

Extended Summary: The director and health officer for the Los Angeles County Public Health reported the Corporation to the Food and Drug Administration ("FDA") for inadequate marketing information with respect to a surgical devise for medical facilities. The Corporation contacted the FDA - through an attorney - with the intention to dissuade the FDA from further investigating the matter. Nevertheless, the FDA opened an investigation and sent letters to the Corporation informing it that the FDA believed its advertising violated the Food, Drug, and Cosmetic Act (FDCA). Another attorney for the Corporation and a third attorney on behalf of a few medical centers sent letters to the FDA in response to these warning letters. The government alleged that these letters provided "false statements designed to obstruct the FDA investigation."

Under the crime-fraud exception to attorney-client privilege, grand jury subpoenas were issued to the three lawyers to produce all communications and retainer contracts relating to the FDA investigation. The attorneys did not fully comply with the subpoenas. Finding that the Government had established a prima facie case of crime-fraud based on independent, non-privileged evidence, the district court rejected the Corporation's request for in camera review of the individual attorney-client communications and granted the government's motion to compel production of all the subpoenaed documents.

On appeal, the panel recognized that, while "the attorney-client privilege is 'arguably most fundamental of the common law privileges recognized under Federal Rule of Evidence 501,' it is 'not absolute.'" See In re Napster, 479 F.3d at 1090, abrogated in part on other grounds by Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).

The panel applied a two-part test to invoke the crime-fraud exception to attorney-client privilege: "First, the party must show that the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme. Second, it must demonstrate that the attorney-client communications for which production is sought are sufficiently related to and were made in furtherance of [the] intended, or present, continuing illegality." Citing In re Grand Jury Proceedings, 87 F.3d 377, 381-83 (9th Cir. 1996).
\
The panel ruled that the existence of a prima facie case satisfies only the first step of the crime-fraud inquiry. On the second step, the Government will have to also provide information to determine "whether the attorney-client communications for which production is sough are 'sufficiently related to' and were made 'in furtherance of the intended, or present, continuing illegality.'" In re Napster, 479 F.3d at 1090.

As to the first step, the panel agreed with the district court that district courts may find a prima facie case of crime-fraud either by examining privileged material in camera or by examining independent, nonprivileged evidence. As to the second step, the panel, noting an absence of Ninth Circuit published opinions on point, adopted the Sixth Circuit's approach: "While in camera review 'could . . . assist[ ] the court in determining whether a prima facie violation had been made' (step one), in camera review 'is mandated to determine the scope of the order,' i.e. 'to determine whether [the documents] reflect communications or work product made in furtherance of a contemplated or ongoing' crime-fraud (step two)." Citing In re Antitrust Grand Jury, 805 F.2d 155, 168 - 69 (6th Cir. 1986).

Accordingly, the panel concluded that an in camera review was not necessary to establish the prima facie case; however, on remand,"[the] district court must examine the individual documents themselves to determine that the specific attorney-client communications and documents for which production is sought are "'sufficiently related to' and were made 'in furtherance of the intended, or present, continuing illegality,'" by doing so, making the scope of production of documents more specific and possibly narrower. See In re Napster, 479 F.3d at 1090.

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/14/15-50450.pdf

Panel: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and George Caram Steeh III, Senior District Judge.

Argument Date: December 7, 2015

Date of Issued Opinion: January 14, 2016

Docket Number: 15-50450

Decided: Vacated and Remanded

Case Alert Author: David Erghelegiu

Counsel: Robert A. Kashfian, Ryan D. Kashfian (argued), Kashfian & Kashfian LLP, Century City, California, for Respondents Appellant. Robert J. Rice, Los Angeles, California, for Respondent Appellant.

Kristen A. Williams, Evan J. Davis, Assistant United States Attorneys, Major Frauds Section; Consuelo S. Woodhead (argued), Assistant United States Attorney, Criminal Appeals Section, Los Angeles, California, for Plaintiff-Appellee.

Author of Opinion: Judge Ronald M. Gould

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/16/2016 06:12 PM     9th Circuit     Comments (0)  

March 7, 2016
  Sixth Circuit -- Bad-faith Chapter 11 plan not rescued by "friendly" creditors' approval
Case: In re Village Green I -- Sixth Circuit

Area of law: Bankruptcy; Chapter 11 Reorganization

Issue presented: Can a Chapter 11 reorganization plan proposed in bad faith be confirmed based on votes of "friendly" creditors?

Brief summary: For a bankruptcy court to approve a reorganization plan under Chapter 11 of the Bankruptcy Code, the debtor must propose the plan in good faith, and at least one class of creditors whose interests are impaired by the plan must vote to accept it. Here, the only creditors who voted in favor of the bankruptcy debtor's plan were its own former lawyer and accountant, to whom the debtors owed less than $2,400, and whose interests were impaired only because they'd receive the unpaid balance over 60 days, rather than up front. The bankruptcy court approved the plan. The debtor's mortgagor appealed to the district court. The case bounced back and forth between the bankruptcy court and the district court, with the district court finding that this arrangement was merely a way to get around the Code's good-faith requirement. The bankruptcy court dismissed the case, and the debtor appealed. The Sixth Circuit affirmed.

Extended summary: The debtor, who owed a mortgagor $8.6 million for the purchase of an apartment building, filed for bankruptcy under Chapter 11 of the Bankruptcy Code. The bankruptcy court stayed any creditor action against the debtor and held up foreclosure proceedings. The building was the only asset in the bankruptcy. Apart from the mortgage, the debtor's only creditors were its former lawyer and accountant.

The debtor's proposed reorganization plan included paying down the mortgagor's claim relatively slowly, leaving a balance of $6.6 million after 10 years. If the mortgagor foreclosed, however, the balance would immediately drop to $3.2 million. The plan would also remove several protections found in the loan agreements, including the requirement that the debtor properly maintain the building and obtain adequate insurance for it. Finally, though the debtor would pay the minor claims of the accountant and lawyer in full, it would do so in two payments over 60 days.

That 60-day delay in paying the accountant and lawyer, the bankruptcy court held, meant that their minor claims were "impaired" under the plan. That qualification, in turn, meant that acceptance by the lawyer or accountant alone would satisfy the requirement that "at least one class of claims that is impaired under the plan has accepted the plan." The bankruptcy court thus confirmed the plan. The mortgagor appealed to the district court, which remanded the case to bankruptcy court on two occasions. Finally, the bankruptcy court dismissed the case and lifted the automatic stay.

The Sixth Circuit noted that two of the bankruptcy court's decisions were at issue. The first was whether the lawyer's and accountant's minor claims were "impaired" under the Bankruptcy Code. A claim is impaired under a plan if it alters "the legal, equitable, and contractual rights to which such claim or interest entitles the holder of such claim or interest." Here, the plan altered the minor claimants' rights because they were legally entitled to payment immediately rather than in two installments over 60 days. Although the alteration appeared trivial, the Sixth Circuit agreed that these claims technically did qualify as "impaired."

The Sixth Circuit then considered whether the debtor's plan was proposed in good faith. First, it found no reason for the 60-day payment plan on the minor claims given the debtor's monthly net income from apartment rentals. Second, it noted that the former lawyer and accountant were closely allied with the debtor. In fact, when the mortgagor sought to pay the minor claimants up front - by tendering each of them checks for full payment of their claims - they refused to accept payment. This compounded the appearance that the debtor was acting in bad faith by trying to circumvent the Code with the help of its former lawyer and accountant. Therefore, the Sixth Circuit held that the reorganization plan was not made in good faith, affirming the district court.

Panel: Circuit Judges Ralph B. Guy, Karen N. Moore, and Raymond M. Kethledge

Date of issued opinion: January 27, 2016

Docket number: 14-6521

Decided: Affirmed

Counsel: ARGUED: John L. Ryder, HARRIS SHELTON HANOVER WALSH, P.L.L.C., Memphis, Tennessee, for Appellant. Daniel H. Slate, BUCHALTER NEMER, Los Angeles, California, for Appellee. ON BRIEF: John L. Ryder, Michael F. Rafferty, HARRIS SHELTON HANOVER WALSH, P.L.L.C., Memphis, Tennessee, for Appellant. Daniel H. Slate, BUCHALTER NEMER, Los Angeles, California, Mark Warren Bailey, Jr., HUSCH BLACKWELL, LLP, Memphis, Tennessee, for Appellee.
Author of opinion: Circuit Judge, Raymond M. Kethledge

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0018p-06.pdf

    Posted By: Mark Cooney @ 03/07/2016 03:16 PM     6th Circuit     Comments (0)  

  United States v. Berry -- Fourth Circuit
Fourth Circuit Joins Tenth to Announce: No Need for Circumstance-Specific Evaluation when Categorical Evaluation Holds Up

Areas of Law: Criminal Procedure

Issue Presented: Whether the district court erred in using a circumstance-specific approach rather than a categorical approach to conclude that Berry's past convictions justified his Tier III designation.

Brief Summary: Defendant Berry was convicted of a sex offense and, therefore, was required to register under the federal Sex Offender Registration and Notification Act (SORNA). Berry failed to register and pled guilty to a violation of 18 U.S.C. § 2250(a), which is a failure to register statute. At sentencing, the district court calculated Berry's Sentencing Guidelines (Guidelines) range as if Berry were a Tier III sex offender. The United States Court of Appeals for the Fourth Circuit compared Berry's sex offense with what constitutes a Tier III offense and disagreed with the district court, vacating Berry's sentence and remanding the case to the district court to properly determine Berry's tier classification in order to impose a sentence.

Detailed Summary: In 2002, Defendant Brian Keith Berry pled guilty in New Jersey state court to endangering the welfare of a child. Berry was convicted of a sex offense and, therefore, was required to register under SORNA. After release from prison, Berry was told to register with the New Jersey police. He complied with the requirement and provided law enforcement with a New Brunswick address. However, in March 2013, police discovered that Berry no longer resided at the New Brunswick address and subsequently issued a warrant for his arrest for violating the conditions of his parole. Berry was found in North Carolina where he admitted to failing to register. At trial, Berry pled guilty to violating 18 U.S.C. § 2250(a) and the district court found Berry to be a Tier III sex offender with a corresponding base offense level of 16. The district court's finding was based on a description of the conduct underlying Berry's prior sex offense, which was "penetrating the vagina of a five-year-old victim with his hand." The district court found this conduct was comparable to the offense of abusive sexual conduct against a minor who has not yet attained 13 years of age, which falls under the Tier III definition. Based on the analysis and the Tier III designation, the district court sentenced Berry to 33 months in prison and 5 years of supervised release. This timely appeal stems from the district court's sentencing because Berry did not believe he should have been sentenced as a Tier III sex offender.

The Fourth Circuit began its analysis with the requirement for sex offenders to register and the penalties when offenders do not follow through with such requirement. SORNA classifies sex offenders into three tiers based on the sex offender's underlying sex offense. The court then explained that Tier II and Tier III designations are for more serious sex offenses and Tier I is a catch-all provision for all other sex offenses. To determine a defendant's tier classification, courts must compare the defendant's prior sex offense conviction with the offenses listed in the tier definitions. Courts have three analytical frameworks they can use to make this comparison: (1) the categorical approach; (2) the modified categorical approach; and (3) the circumstance-specific approach. The categorical approach focuses solely on the relevant offenses' elements by comparing the elements of the prior offense of conviction with the elements of the federal offense. If the elements of the prior offense are the same as or narrower than the offense listed in the federal statute, there is a categorical match. But, if the elements of the prior conviction sweep more broadly to the point that there is a realistic probability that the statute defining the offense of the prior conviction encompasses conduct outside the offense enumerated in the federal statute, the prior offense is not a match. The modified categorical approach serves as a tool for implementing the categorical approach where the defendant's prior conviction is for violating a statute that sets out one or more elements of the offense in the alternative. This approach allows the court to look through a limited number of documents to determine which alternative formed the basis of the defendant's prior conviction. Once the elements are identified, the court does not look at any other documents and continues with the categorical approach. Finally, the circumstance-specific approach focuses on the circumstances underlying the defendant's prior conviction, not the elements of the offense.

The Fourth Circuit acknowledged that the Tenth Circuit recently considered which approach is best for analyzing the Tier III definition. The Tenth Circuit held that the categorical approach is best and the Fourth Circuit agreed. The Fourth Circuit explained that when a federal statute refers to a generic offense, SORNA's definition demonstrates that Congress' intent is to have the categorical approach apply. On the other hand, when the federal statute refers to specific conduct or factual circumstances, SORNA's definition demonstrates that Congress' intent is to have the circumstance-specific approach apply.

Here, a Tier III sex offender is defined under 42 U.S.C. 16911(4) as "a sex offender whose offense is punishable by imprisonment for more than 1 year and - (A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense: (i) aggravated sexual abuse or sexual abuse (as describe in sections 2241 and 2242 of this title 18); or (ii) abusive sexual contact (as described in section 2244 of title 18) against a minor who has not attained the age of 13 years." The Fourth Circuit applied the Tenth Circuit's analysis and explained that a reference to a specific Criminal Code section suggests a generic offense with a straightforward element test, requiring the categorical approach. In the instant case, the references to "aggravated sexual abuse" or "sexual abuse" are examples of straightforward element tests where the categorical approach applies.

However, the court explained when there is a reference to an act that has a number of alternative elements or a reference to a description rather than an element, the courts need to consider the specific circumstances encompassing the criminal conduct because there is not a straightforward element test or analysis to classify the act. For example, here, the statute referring to "more severe than abusive sexual conduct" and "a minor who has not attained the age of 13 years" are examples where the circumstance-specific approach applies.

The Fourth Circuit agreed with the Tenth Circuit and explained that language in 42 U.S.C. 16911(4) instructs courts to apply the categorical approach when comparing prior convictions with the generic offenses listed. However, the Fourth Circuit and the Tenth Circuit, made an exception to this standard when it comes to the specific circumstance of a victim's age. The Fourth Circuit also held that a similar approach should be taken with Tier II designations.

Next, the Fourth Circuit mentioned the Supreme Court's avoidance of the circumstance-specific approach because it leads to various difficulties and requires examining evidence to discover the specific circumstances of past convictions. This re-evaluation of various pieces of evidence may lead to several "mini-trials" and the United States Supreme Court frowns upon this approach. The Fourth Circuit mentioned that evaluating a victim's age is straightforward and requires inquiry into only one fact. Therefore, the Fourth Circuit explained, the categorical approach is the proper approach to review the SORNA Tier III definition and looking into the victim's age would be an exception.

The Fourth Circuit applied its decision to use the categorical approach in considering whether a defendant's prior conviction is a Tier III sex offense under 42 U.S.C. 16911(4)(A) and to look at the specific circumstances for the victim's age to Berry's particular issues. Here, in 2002, Berry violated the New Jersey Statute § 2C:24 - 4(a). At the time of conviction, the statute held "[a]ny person...who engaged in sexual conduct...or who causes the child harm... is guilty of a crime of the third degree." The New Jersey Supreme Court has ruled, in a multitude of cases, that an offender may violate the New Jersey Statute § 2C:24 - 4(a) by both physical and non-physical means such as deprivation of sufficient food or repeatedly appearing nude in front of a window; whereas, a Tier III designation requires a defendant to have engaged in or attempted physical contact with the victim. Therefore, because the New Jersey statute encompasses a much broader interpretation of sexual conduct than the Tier III definition, the Fourth Circuit believed Berry's Tier III designation was improper. The Fourth Circuit vacated Berry's sentenced and remanded the case for the district court to apply the proper tier classification, calculate the corresponding Guideline, and impose a proper sentence.

To read the full text of this opinion, please click here.

Panel: Judges Wilkinson, King, and Wynn

Argument Date: 12/10/2015

Date of Issued Opinion: 02/19/2016

Docket Number: No. 14-4934

Decided: Vacated and remanded by published opinion.

Case Alert Author:
Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Thomas P. McNamara, Federal Public Defender, Jennifer C. Leisten, Research & Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Amicus Curiae.

Author of Opinion:
Judge Wynn

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/07/2016 01:01 PM     4th Circuit     Comments (0)  

March 5, 2016
  In re Sanofi Sec. Litig., AG Funds, L.P. v. Sanofi - Second Circuit
Headline: Second Circuit Holds Pharmaceutical Companies' Opinions About Drug's Likely FDA Approval Are Not Actionable Under New Federal Securities Laws Standards Laid Out By Supreme Court's Recent Omnicare Decision.

Area of Law: Securities Law

Issue(s) Presented: Whether the district court correctly dismissed plaintiffs' securities claims for failure to plead a material misstatement or omission under the standard recently articulated by the Supreme Court in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund.

Brief Summary: The defendants, pharmaceutical company Sanofi, along with its predecessor and three company executives, were sued for allegedly issuing materially false or misleading statements regarding the breakthrough drug, Lemtrada, designed to treat multiple sclerosis ("MS"). The consolidated plaintiffs, individual and corporate stockholders that invested and purchased contingent value rights ("CVRs"), were entitled to cash payouts upon achievement of certain "milestones" connected to the success of Lemtrada. One important milestone, that was not met, was obtaining U.S. Food and Drug Administration ("FDA") approval for Lemtrada by March 31, 2014. The plaintiffs alleged that because the defendants failed to disclose the FDA's concerned feedback regarding the use of only single-blind studies to test Lemtrada, the defendants misled investors as to the likelihood of meeting the "milestones," upon which the CVRs value partially depended, thereby artificially inflating the value of the CVRs. The plaintiffs argued defendants false or misleading statements violated several provisions of the Securities Exchange Act of 1934, the Securities Act of 1933, and state blue sky laws. The defendants moved to dismiss the consolidated complaints for failure to state a claim and the United States District Court for the Southern District of New York granted the defendants' motion.

On appeal, the Second Circuit affirmed, examining the allegations under the recent United States Supreme Court decision, Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, which refined the standard for analyzing whether a statement of opinion is materially misleading. Recognizing that the new U.S. Supreme Court precedent disturbed previous Second Circuit precedent, the Second Circuit still found that plaintiffs failed to allege that defendants made materially misleading statements of opinion and affirmed dismissal of plaintiffs' complaints for failure to state a claim.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...e3deaf9f0f0/2/hilite/

Extended Summary:
Lemtrada, a drug currently owned by the pharmaceutical company Sanofi, has long shown great potential as a treatment for victims of multiple sclerosis ("MS"). Lemtrada has a unique treatment cycle that requires only two annual treatment courses rather than traditional MS treatments which require a daily or weekly dosing regimen. In part, because of Lemtrada's unique treatment design, it was only clinically tested with a single‐blind study, rather than a double-blind study. During a single‐blind study, either the researcher or the patient does not know which drug was administered. By contrast, during a double‐blind study, neither the patient nor the researcher knows which drug was administered. At least as far back as 2002, when Lemtrada was then-owned by the pharmaceutical company Genzyme, the FDA expressed concern about the use of only single‐blind studies for the drug. However, the FDA also stated in various opinions that single-blind studies might be adequate to support approval for the drug if the effect is large.

In 2010 when Sanofi began to acquire Genzyme, the two companies could not agree on a value for Lemtrada. Sanofi ultimately issue contingent value rights ("CVRs") to Genzyme shareholders as part of the acquisition. The CVRs entitled investors and holders to cash payments upon the achievement of certain "milestones" connected to the success of Lemtrada, such as obtaining FDA approval for the drug by March 31, 2014. Following its acquisition of Genzyme, Sanofi continued to speak optimistically about, and make statements endorsing the effectiveness of, Lemtrada. However, the FDA rejected Lemtrada's initial application in 2013, and the value of the CVRs significantly decreased. The drug was ultimately approved by the FDA, but not until November, 2014, well after the "milestone" deadline. The plaintiffs, individuals and corporations that invested and purchased CVRs, subsequently sued for violations of §§ 10(b), 18, and 20(1) of the Securities Exchange Act of 1934, §§ 11 and 12 of the Securities Act of 1933 and state blue sky laws, alleging defendants' issued materially false or misleading statements or omissions regarding Lemtrada.

In its opinion, the Second Circuit affirmed the conclusions of the district court, and its dismissal of the plaintiffs' complaints for failure to state a claim. However, the Second Circuit wrote to principally examine the impact of the U.S. Supreme Court's recent intervening decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 135 S. Ct. 1318 (2015), which was decided after the district court rendered its decision and refined the Second Circuit's own standard for analyzing whether a statement of opinion is materially misleading under Fait v. Regions Financial Corp., 655 F.3d 105 (2d Cir. 2011). The new standard under Omnicare requires that opinions, though sincerely held and otherwise true as a matter of fact, may nonetheless be actionable if the speaker omits information whose omission makes the statement misleading to a reasonable investor. Under this new standard, the core inquiry is whether the omitted facts would conflict with what a reasonable investor would take from the statement itself.

Applying Omnicare to three specific groups of statements of opinion made by defendants, that the district court originally reviewed, the Second Circuit found that the plaintiffs still failed to allege that defendants made materially misleading statements of opinion. The first set of statements related to Sanofi's expectation that the FDA would approve Lemtrada before the "milestone" deadline. The second and third set of statements related to Sonofi's statements optimistically speaking about, and endorsing the effectiveness of, Lemtrada.

As to the first statement of opinion, the Second Circuit firstly found that defendant's optimism about the approval of Lemtrada was not in conflict with the FDA's concerned comments, which indeed indicated that Lemtrada could be approved if it demonstrated an extremely large effect. The record reflected that Lemtrada's treatment was, in fact, large. Secondly, the Second Circuit found Omnicare does not impose liability for a failure to disclose information that runs counter to an expressed opinion, and stated the defendants were not required to disclose all FDA information cutting against their studies.

As to the remaining statements, the Second Circuit found that generalized statements of subjective optimism do not convey facts about how the issuer has formed an opinion and are not actionable. The court reasoned that no reasonable investor would have inferred that the defendants' issued statements of confidence would suggest that the FDA had not engaged in industry‐standard dialogue about potential deficiencies in either the testing methodology or the drug itself. The Second Circuit concluded that, at bottom, there was an absence of plausible allegations showing a conflict between defendants' statements and the FDA's concerned feedback. Rather, the plaintiffs' allegations regarding defendants' opinions about the Lemtrada results were little more than an argument about the proper interpretation of data, something that the Second Circuit has rejected as a basis for liability. The Second Circuit thus affirmed the decision of the district court under the new standards of Omnicare, finding that not only does securities law not impose an obligation to disclose every piece of information in defendants' possession, but that the plaintiffs' in this case were sophisticated investors who could not claim they were misled by optimistic issued statements regarding the approval and launch of Lemtrada.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...e3deaf9f0f0/2/hilite/

Panel: Circuit Judges Parker, Lohier, and Carney

Argument Date: October 7, 2015

Date of Issued Opinion: March 4, 2016

Docket Number:
15‐588‐cv; 15‐623‐cv

Decided: Affirmed

Case Alert Author: Brad Landau

Counsel: Christopher L. Nelson (James M. Ficaro, Brett D. Stecker, on the brief), The Weiser Law Firm, P.C., Berwyn, PA, Daniella Quitt, Harwood Feffer LLP, New York, NY, on the brief, for Plaintiffs‐Appellants Gen. Partner Glenn Tongue, Deerhaven Capital Management; John B. Orenstein (Harry N. Niska, on the brief), Ross Orenstein & Baudry LLC, Minneapolis, MN, for Plaintiffs‐Appellants AG Funds, L.P. et al.; John Neuwirth (Joshua S. Amsel, Caroline Hickey Zalka, Justin D. D'Aloia, on the brief), Weil, Gotshal & Manges LLP, New York, NY, for Defendants‐Appellees.

Author of Opinion: Circuit Judge Parker

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 03/05/2016 05:40 PM     2nd Circuit     Comments (0)  

  American Freedom v. Metropolitan Transportation Authority
Headline: Second Circuit Affirms That American Freedom Defense Initiative Must File New Complaint to Challenge Metropolitan Transportation Authority's Advertising Standards for New York City Subways and Buses

Area of Law:
Constitutional

Issue(s) Presented: Whether the MTA's adoption of new advertising standards for subways and buses rendered the plaintiffs-appellants' previous First Amendment challenge moot.

Brief Summary: American Freedom Defense Initiative (AFDI), a pro-Israel advocacy organization known for its criticism of Islam, sought to purchase an advertisement for display on the back of MTA buses. The advertisement depicted a "menacing-looking man" whose face and head were largely covered by a head scarf; it included a quotation stating that "Killing Jews is Worship that draws us close to Allah" and then said "That's His Jihad. What's yours?" The MTA refused to display it, citing its policy barring the display of any advertisement reasonably likely to incite violence. AFDI filed suit in the United States District Court for the Southern District of New York, alleging a First Amendment violation. The district court granted AFDI's motion for a preliminary injunction, explaining that although it was not striking down the entire policy, the policy could not be enforced against the ad in question. The MTA subsequently amended its advertising standards, stating that it would no longer allow advertisements that were "political in nature." It then informed AFDI that, under this new policy, it would not display the ad. The district court dissolved the prior injunction, on grounds that it was now moot in light of the policy change, and AFDI appealed. The Second Circuit affirmed, explaining that the MTA's conduct had changed the basis of what the AFDI was now disputing. If AFDI wants to challenge these new advertising standards, it must file an amended complaint.

Extended Summary (if applicable): The Metropolitan Transportation Authority (MTA) accepts paid advertisements to be displayed on its subways and buses. In the past, the MTA had accepted both commercial and non-commercial advertisements, excluding only those advertisements that fall within certain discrete categories, such as, for example, misleading advertisements, advertisements promoting unlawful activity, obscene advertisements, and advertisements expected to incite violence. American Freedom Defense Initiative (AFDI), a pro-Israel advocacy organization known for its criticism of Islam, submitted an advertisement for display on the back of MTA buses. According to the district court, the advertisement portrayed a "menacing-looking man whose head and face are mostly covered by a head scarf. The advertisement included a quote from 'Hamas MTV': 'Killing Jews is Worship that draws us close to Allah.' Underneath the quote, the ad stated: 'That's His Jihad. What's yours?' The bottom of the advertisement included a disclaimer that it was sponsored by [ADFI], and did not imply the MTA's endorsement of the views expressed by the ad." The MTA refused to display the advertisement by using its provision against displaying any advertisements reasonably likely to incite violence.

AFDI filed suit against the MTA in the United States District Court for the Southern District of New York, claiming that the application of the incitement prohibition to the advertisement violated the First Amendment, and moved for a preliminary injunction. The district court granted the motion, enjoining the enforcement of the incitement prohibition as to the advertisement in question, rather than striking down the whole standard. The court stayed the effectiveness of the injunction for 30 days. While the stay was in effect, the MTA's Board of Directors voted to amend the MTA's advertising standards to include a prohibition on any advertisement that is "political in nature." After the new standards were approved, the MTA informed AFDI that it would not display the advertisement because it violated this new prohibition. The MTA then moved to dissolve the preliminary injunction, arguing that the claim on which it rested was moot in light of the change to the MTA's advertising standards. The district court granted the motion.

AFDI appealed, and the Second Circuit reviewed whether the district court abused its discretion in granting the motion. AFDI argued that the MTA had failed to satisfy the test for mootness because the new advertising policy was just as unconstitutional as the one already enjoined. However, the Second Circuit affirmed the district court's judgment because the MTA had altered its conduct in a manner sufficient to present a fundamentally different controversy, and AFDI was not suffering an ongoing harm from the MTA's initial rejection of the advertisement under the old standard. The AFDI may challenge the MTA's new advertising standards, but it must do so by filing an amended complaint. To read the full opinion, please visit: http://www.ca2.uscourts.gov/de.../1/doc/15-1997_opn.pdf

Panel: Circuit Judges Katzmann and Kearse; District Judge Schofield, sitting by designation

Argument Date: 1/15/2016

Argument Location: New York, NY

Date of Issued Opinion: 3/3/2016

Docket Number: No. 15-1997

Decided: Affirmed

Case Alert Author: Nigyar Alieva

Counsel: David Yerushalmi, American Freedom Law Center, for Plaintiff-Appellants; Victor A. Kovner, Davis Wright Tremaine LLP for Defendant-Appellees

Author of Opinion: Per Curiam

Circuit: Second Circuit

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 03/05/2016 04:13 PM     2nd Circuit     Comments (0)  

March 3, 2016
  National Parks Conservation Association v. U.S. Environmental Protection Agency - Eighth Circuit
Headline Eighth Circuit panel denies petition for review of EPA approval of Minnesota haze plan

Area of Law Environmental Law

Issue(s) Presented Whether the Environmental Protection Agency (EPA) properly approved the Minnesota Regional Haze State Implementation Plan.

Brief Summary Six environmental conservation organizations petitioned the Eighth Circuit for review of the EPA's decision to approve the Minnesota Regional Haze State Implementation Plan (the Minnesota Plan). The Plan is designed to improve natural visibility in the Boundary Waters Canoe Area Wilderness and Voyageurs National Park, both in Minnesota.

In keeping with the national goal of improving natural visibility in certain areas, such as national parks, states must revise their environmental plans to include measures necessary to achieve reasonable progress towards the visibility goal. One way states may do this is by requiring major stationary air pollutant emitters to install and operate best available retrofit technology (BART) to reduce their emissions. This requires a determination of what constitutes BART for each stationary pollution source. Another way states may revise their environmental plans is by adopting the EPA's alternative to BART, commonly called the Transport Rule. The EPA has generally determined that the Transport Rule is "better than BART" because it achieves greater reasonable progress towards achieving natural visibility conditions in national parks and other covered areas. 77 Fed. Reg. 33,642, 33,648 (June 7, 2012). The Transport Rule allows states it covers to use an emissions trading program instead of BART.

The Minnesota Plan relied on participation in the Transport Rule emissions trading programs instead of adopting source-specific BART. The EPA approved the plan. Six conversation groups petitioned for review, arguing that source-specific BART may achieve better results in Minnesota, and also questioning Minnesota's reasonable progress goals. After determining that it had jurisdiction over the matter, the Eighth Circuit noted that the EPA's approval of the plan can only be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Sierra Club v. EPA, 252 F.3d 943, 947 (8th Cir. 2001). In this case, the EPA conducted a technical analysis to determine the effectiveness of the Transport Rule, and relied on that analysis and two national rulings on the subject in approving the Minnesota Plan. The EPA also determined that Minnesota had adequately demonstrated that its progress goals were reasonable. The Eighth Circuit panel held that the EPA's decision to approve the Minnesota Plan was rational, followed a defensible approval process, and was not arbitrary and capricious.

Circuit Judge Bye concurred in the result, concluding that the Eighth Circuit lacked jurisdiction to the extent the conservation organizations claim that source-specific BART is better than the Transport Rule as applied to the Minnesota Plan.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/01/122910P.pdf

Panel Chief Judge Riley, Circuit Judges Benton and Bye

Date of Issued Opinion January 21, 2016

Decided Petition for review denied

Docket Number 12-2910, 12-3481

Counsel Janette K. Brimmer for the Petitioners and Norman Louis Rave, Jr. for the Respondents

Author Circuit Judge Benton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 03/03/2016 09:57 AM     8th Circuit     Comments (0)  

March 1, 2016
  Sixth Circuit -- Eviction Notice Need Not Advise Tenant of Appeals Process
Case: Gardner v. Evans -- Sixth Circuit

Headline: Sixth Circuit holds that eviction notices need not contain language advising tenants of appeals process to be constitutional.

Area of law: Landlord-Tenant Law; Eviction; Constitutional Law

Issue presented: Are city inspectors immune from a suit alleging constitutionally unsound eviction notices when the notices did not tell tenants how to pursue a timely appeal?

Brief summary: Eight tenants received notices of eviction for alleged violations to the Lansing Housing and Premises Code. The notices were left at each home on a "red-tag," which did not include any information about the tenant's right to appeal the inspector's decision and obtain an administrative hearing. Unaware of this option, none of the tenants filed an appeal within the 20-day period. Thus, they all waived their right to an administrative review. The tenants sued, alleging that the lack of appeal-process information on the eviction notices was unconstitutional. The inspectors claimed qualified immunity, but the district court rejected their defense. The Sixth Circuit reversed, holding that there is no established requirement to notify tenants of the appeals process.

Extended summary: Eight tenants were evicted from their homes for alleged violations of the Lansing Housing and Premises Code. In each instance, after the inspector had gone through the home, he summarized his findings in an eviction "red-tag" notice form, which he gave to the tenant. Each red-tag form was filled out as specified by the Code, but none indicated that if an evicted tenant failed to appeal within 20 days after receiving the red-tag, the tenant waived the right to administrative review. Unaware of these appeal requirements, none of the tenants filed an appeal within the 20-day period. Thus, they inadvertently waived their right to an administrative review. The tenants sued, claiming that the lack of notice of the appeals process made their evictions unconstitutional. The inspectors claimed qualified immunity. The district court denied the inspectors' motion for summary judgment based on qualified immunity, and the inspectors appealed.

In determining whether the inspectors were entitled to qualified immunity, the Sixth Circuit considered two questions: First, did the inspectors violate a constitutional right? And second, were the contours of that right clearly established? The Sixth Circuit decided that it didn't need to decide the question of whether a constitutional right was violated because the tenants could not show a clearly established right. The court noted that while the requirement of who is to be given notice has been clearly established by previous caselaw, there is no clarity on the requirement for providing notice of the appeals process. The court noted that both the Supreme Court and other circuits have specifically found that no such requirement exists, finding that tenants have other ways to obtain this information, including the phone numbers found on the eviction notices and readily available public codes. The Sixth Circuit reasoned that based on the availability of this information, it was not unreasonable for the inspectors to believe that their actions were constitutional. Accordingly, the court reversed, holding that the inspectors enjoyed qualified immunity.

Panel: Circuit Judges, Alice M. Batchelder, and Richard A. Griffin; and District Judge, James G. Carr.

Date of issued opinion: February 4, 2016


Docket number: 15-1200

Decided: Reversed and Remanded.

Counsel: ARGUED: F. Joseph Abood, OFFICE OF THE CITY ATTORNEY, Lansing, Michigan, for Appellants. J. Nicholas Bostic, Lansing, Michigan, for Appellees. ON BRIEF: Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellants. J. Nicholas Bostic, Lansing, Michigan, for Appellees.

Author of opinion: ALICE M. BATCHELDER, Circuit Judge

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0023p-06.pdf

Edited: 03/07/2016 at 02:43 PM by Mark Cooney

    Posted By: Mark Cooney @ 03/01/2016 02:36 PM     6th Circuit