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November 22, 2016
  Fraternal Order of Police, Lodge 1 v. City of Camden - Third Circuit
Headline: "Directed patrols" that required police officers to engage with community members did not violate New Jersey Anti-Quota law, prohibiting quotas for arrests and citations; 1st Amendment did not protect officers' objections to the patrol policy; officers are entitled to trial on their retaliation claims under New Jersey state law.

Area of Law: Evidence, Qualified Immunity, NJ Anti-Quota Law, Conscientious Employee Protection Act, First Amendment, Family and Medical Leave Act

Issues Presented: Does a city's "directed patrols" policy implemented by its police department constitute an illegal quota system in violation of New Jersey's anti-quota law? When does a city's conduct amount to illegal retaliation in violation of New Jersey's Conscientious Employee Protection Act, the First Amendment, and the Family and Medical Leave Act?

Brief Summary: In April 2009, the Fraternal Order of Police filed a complaint against the City of Camden Police Department and the Attorney General of New Jersey ("Defendants"), claiming Camden had imposed an unlawful quota policy by requiring the officers to perform "directed patrols," which required them to engage with community members. The individual plaintiff Officers also accused Defendants of illegal retaliation in violation of NJ's Conscientious Employee Protection Act ("CEPA"), the First Amendment, and the Family and Medical Leave Act ("FMLA"). The Third Circuit concluded that NJ's anti-quota statute is inapplicable to the patrols policy and thus could not support Plaintiffs' allegations of a quota. It affirmed summary judgment on the First Amendment claims because the plaintiffs were speaking as employees, not citizens. But the Court reversed summary judgment on plaintiffs' retaliation claims under the New Jersey Conscientious Employee Protection Act, holding that plaintiffs' reasonable belief that the policy was illegal, the evidence of adverse actions taken against them, and evidence of a causal connection showed material facts in dispute. Plaintiffs were entitled to rely on hearsay evidence to oppose summary judgment because the evidence was capable of being admissible at trial.

Extended Summary: This case arises from a dispute between the Fraternal Order of Police, Lodge 1 as well as certain police officers ("Plaintiffs") on one side, and the City of Camden, NJ and certain supervisory police personnel ("Defendants") on the other. In 2008, Camden implemented a policy known as "directed patrols" requiring police officers to engage with city residents even though the residents are not suspected of any wrongdoing. The announced purpose of the program was to obtain information about the community while making the police presence more visible. In April 2009, Fraternal Order of Police, Lodge 1 filed a complaint against the Camden Police Department and the NJ Attorney General, claiming that the directed controls policy constituted an illegal quota system in violation of NJ's anti-quota law. The individual plaintiff Officers further alleged that Defendants violated NJ's Conscientious Employee Protection Act ("CEPA"), the First Amendment and the Family Medical Leave Act ("FMLA") by retaliating against them because they expressed their disagreement with the policy. The district court granted summary judgment to Defendants on all of Plaintiffs' claims.

On appeal, Plaintiffs contended that the district court erred in dismissing their claims under (1) New Jersey's anti-quota law; (2) CEPA; (3) the First Amendment; and (4) FMLA. In addition, they asserted that the district court erred when it ignored hearsay evidence and concluded that Defendants were entitled to judgment as a matter of law. The Third Circuit discussed each claim of error in turn.

First, the Third Circuit discussed the district court's concern over statements by the individual plaintiffs about statements other officers purportedly made concerning the alleged retaliation and the nature of the patrols constituted hearsay. According to the Third Circuit, this evidence was hearsay, but the court erred in refusing to consider it at the summary judgment stage. The Third Circuit explained "the rule in this circuit is that hearsay statements can be considered on a motion for summary judgment if they are capable of being admissible at trial." Thus, in ruling on Defendants' motion for summary judgment, the district court should have limited its inquiry to determining if the out-of- court statements Plaintiffs were relying on were admissible at trial, "and they clearly were." Accordingly, The Third Circuit reversed the district court's exclusion of hearsay in determining if the record allowed Plaintiffs to survive a motion for summary judgment.

Second, the Third Circuit discussed Plaintiffs assertion that Camden's patrols policy violates NJ's anti-quota statute even though the statute's text only addresses arrests and citations. The Third Circuit found that the district court correctly relied on the limited scope of the statute's text - which does apply only to arrests and citations, and not to the civilian "encounters" that are at the center of this dispute. Accordingly, the Third Circuit affirmed the court's grant of summary judgment in favor of Camden on Plaintiffs' claims under the anti-quota law.

Third, the Third Circuit discussed CEPA, which protects employees against retaliation by employers for whistleblowing activities. The Court made clear that NJ courts have created a four-pronged test for adjudicating CEPA claims that largely replicates the three- part burden-shifting test that is used to decide federal retaliation claims. To establish a CEPA violation, a plaintiff must prove that: (1) she reasonably believed her employer was violating a law or rule; (2) she performed a protected whistleblowing activity; (3) an adverse employment action was taken against her; and (4) there is a causal connection between the whistleblowing activity and the adverse action. According to the Third Circuit, Plaintiffs satisfied each prong, and summary judgment was therefore inappropriate. Accordingly, the Third Circuit reversed the district court's dismissal of the plaintiff-officers' retaliatory transfer claims under CEPA.

Fourth, the Third Circuit addressed plaintiff-officers claim that Defendants violated their First Amendment rights by retaliating against them for objecting to the patrols policy. According to the Third Circuit, a public employee's statement is protected by the First Amendment when "(1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have 'an adequate justification for treating the employee differently from any other member of the general public' as a result of the statement he made." While the Third Circuit noted that the plaintiff-officers provided compelling arguments to support their claim that their speech involved a matter of public concern, it agreed with the district court that their First Amendment claims could not proceed. The Court explained, the First Amendment "provides robust protection to statements pertaining to matters of public concern," but it does not "empower public employees to constitutionalize the employee grievance when they are acting in their official capacities."' Accordingly, the Third Circuit affirmed the dismissal of the plaintiff-officers' First Amendment claims.

Fifth, the Third Circuit discussed the FMLA, which affords eligible employees leave to tend to a serious health condition, and to care for a family member with a serious health condition. A claim that these rights have been breached is referred to as "interference." Officer Holland alleged that Camden interfered with his protected FMLA leave, while Camden contended that any "interference" was in part an internal miscommunication. The Third Circuit found that without more, Camden's conduct was not actionable under FMLA. Accordingly, because FMLA "provides no relief unless the employee has been prejudiced by the violation," the district court was correct in granting summary judgment against Officer Holland.

Finally, the Third Circuit discussed qualified immunity, since in addition to suing the City of Camden, Plaintiffs also sued several officers in their individual capacities. Those officers objected to the suits on the ground that they are protected by qualified immunity. In assessing the qualified immunity claims, the Third Circuit conducted its two-part inquiry by first, determining whether the facts demonstrate the violation of a right; and second, deciding if the right at issue was clearly established at the time of the alleged misconduct. Ultimately, the Third Circuit agreed with the district court that qualified immunity depends, in part, on whether a legal violation occurred, and since Plaintiffs did not show a violation of federal law, it did not need to reach the issue of qualified immunity.

Overall, the Third Circuit reversed the district court's order granting summary judgment to Defendants on Plaintiffs' CEPA claims, and remanded for proceedings consistent with this opinion. In addition, the Third Circuit affirmed the district court's dismissal of Plaintiffs' New Jersey Anti-Quota law, First Amendment claims, and Officer Holland's FMLA claim.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151963p.pdf

Panel: McKee, Ambro, and Scirica Circuit Judges

Argument Date: January 12, 2016

Date of Issued Opinion: November 17, 2016

Docket Number: No. 15-1963

Decided: Reversed and remanded

Case Alert Author: Brooke Hutchins

Counsel: Gregg L. Zeff, Esq., Counsel for Appellants; John C. Eastlack, Jr., Esq., Daniel E. Rybeck, Esq., Counsel for Appellees

Author of Opinion: Circuit Judge McKee

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 11/22/2016 03:00 PM     3rd Circuit     Comments (0)  

November 21, 2016
  Delaware Trust Co. v. Energy Future Intermediate Holding Co. - Third Circuit
Headline: Third Circuit holds that the redemption premium in a loan indenture is not cancelled by acceleration due to the borrower's voluntary bankruptcy filing, undertaken in order to refinance the indenture at a lower rate.

Area of Law: Bankruptcy

Issues Presented: What happens when one provision of an indenture for money loaned provides that the debt is accelerated if the debtor files for bankruptcy and while in bankruptcy it opts to redeem that debt, while another indenture provision provides for a redemption premium?

Brief Summary: The Energy Future Intermediate Holding Company LLC and EFIH Finance Inc. (collectively, "EFIH") redeemed Notes after their maturity had accelerated due to EFIH's voluntary bankruptcy filing. It did not pay the redemption premium called for in the Notes. The Third Circuit reversed the courts below which had held that the acceleration due to the bankruptcy cancelled the obligation to pay the redemption premium. The Third Circuit made clear that its "primary objective . . . is to give effect to the intent of the parties as revealed by the language of their agreement." Accordingly, it found that the language of the First Lien Indenture required EFIH to pay a make-whole if it redeemed the First Lien Notes at its option before December 1, 2015, and the Second Lien Indenture required the same for redemptions of Second Lien Notes before May 15, 2016 or March 1, 2017. EFIH redeemed the First Lien Notes at its option on June 19, 2014 and redeemed a portion of the Second Lien Notes on March 10, 2015. Thus, the Third Circuit held that EFIH must pay the make-whole per the indenture language.

Extended Summary: First and Second Lien Trustees brought appeals on behalf of their respective Noteholders, which the Third Circuit consolidated. They argued that the Bankruptcy Court and District Court for the District of Delaware erred by holding that Indentures did not require payment of the make-whole when the Energy Future Intermediate Holding Company LLC and EFIH Finance Inc. (collectively, "EFIH") redeemed the Notes after their maturity had accelerated due to EFIH's voluntary filing for bankruptcy. The issue presented to the Third Circuit was what happens when one provision of an indenture for money loaned provides that the debt is accelerated if the debtor files for bankruptcy and while in bankruptcy it opts to redeem that debt, and another indenture provision provides for a redemption premium.

Section 3.07, titled "Optional Redemption," stated when the make-whole is due: "At any time prior to December 1, 2015, the Issuer may redeem all or a part of the Notes at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium [i.e., the make-whole] . . . and accrued and unpaid interest." Section 6.02 provided that on the filing of a bankruptcy petition by EFIH "all outstanding Notes shall be due and payable immediately without further action or notice."

The Third Circuit began by discussing the First Lien Indenture. It stated that any duty to pay the make-whole came from § 3.07. Next, the Court next explored whether there was a redemption, if the redemption was optional, and if it occurred before December 1, 2015. Since § 3.07 did not define "redemption," the Court looked to New York and federal courts, which deemed "redemption" to include both pre- and post- maturity repayments of debt. Accordingly, the Court held that EFIH's June 19, 2014 refinancing was a "redemption" within the meaning of § 3.07. The Court then explained that EFIH's contention that any redemption was mandatory rather than optional did not match the facts. Instead, events leading up to the post-petition financing on June 19, 2014 demonstrated that the redemption was at EFIH's option under § 3.07. Finally, the Court explained that since these occurred before December 1, 2015, § 3.07 required that EFIH pay the Noteholders the yield-protection payment.

Second, the Third Circuit found that any conflict between §§ 3.07 and 6.02 was illusory: "We know no reason why we should choose between §§ 3.07 and 6.02 when both plainly apply." According to the Court, § 3.07 governs the optional redemption embedded in the refinancing and requires payment of the make-whole, while § 6.02 is silent. Thus, "it surpasses strange to hold that silence in § 6.02 supersedes § 3.07's simple script."

Third, the Third Circuit discussed the Second Lien Indenture's additional language, not present in the First Lien Indenture. According to the Court, these additions made explicit the link between acceleration under §6.02 and the make-whole for an optional redemption per § 3.07. Unlike the First Lien Indenture, where these concepts are without cross- reference and separate, in the Second Lien Indenture they are tied together: "Sections 3.07 and 6.02 are not merely compatible but complementary." Even still, the Court made clear that the result is the same no matter the Indenture - there were optional redemptions before a date certain, thereby triggering make-whole premiums.

When EFIH filed its bankruptcy petition, Second Lien Indenture § 6.02 caused "all principal of and premium, if any, interest . . . [,] and any other monetary obligations on the outstanding [Second Lien] Notes [to] be[come] due and payable immediately." The words "premium, if any," are most naturally read to reference §3.07's "Applicable Premium" - that is, the make-whole. By including the words "premium, if any," in its acceleration provision, the Second Lien Indenture left no doubt that §§3.07 and 6.02 work together. Thus, both remained applicable following bankruptcy, and, pursuant to the agreement struck with the Second Lien Noteholders, they were entitled to the make-whole.

Fourth, the Third Circuit discussed the effect of acceleration on make-whole provisions. The Court adopted the New York Court of Appeals' holding that contract terms like § 3.07 that are applicable before acceleration remain so afterward. Put differently, § 3.07 applies no less following acceleration of the Notes' maturity than it would to a pre-acceleration redemption. The Third Circuit explained that if parties want a "prepayment" premium to survive acceleration and maturity, they must clearly state it. Accordingly, the Court found nothing in § 6.02 negates the premium § 3.07 requires if an optional redemption occurs before a stated date. Thus, acceleration here had no bearing on whether and when the make-whole is due.

The Court subsequently emphasized that it must give effect to the "words and phrases" the parties chose. It explained that by avoiding the word "prepayment" and using the term "redemption," here, the parties decided that the make-whole would apply without regard to the Notes' maturity. Still, however, the Court found that if EFIH wanted its duty to pay the make-whole on optional redemption to terminate on acceleration of its debt, it needed to make clear that § 6.02 trumps § 3.07. The burden to make that showing was with EFIH. "To place it on the Noteholders for EFIH's decision to redeem the Notes, [would be] a bridge too far."

The Third Circuit concluded by reiterating its primary objective, "to give effect to the intent of the parties as revealed by the language of their agreement." It restated that the language of the First Lien Indenture required EFIH to pay a make-whole if it redeemed the First Lien Notes at its option before December 1, 2015, and the Second Lien Indenture requires the same for redemptions of Second Lien Notes before May 15, 2016 or March 1, 2017. EFIH redeemed the First Lien Notes at its option on June 19, 2014 and redeemed a portion of the Second Lien Notes on March 10, 2015 - before the respective dates noted. Thus, in accordance with statements of New York law by its highest Court and the federal Circuit Court in New York, the Third Circuit held that EFIH must pay the make-whole. The Court reversed the District Court's judgment with instructions to remand to the Bankruptcy Court for further proceedings consistent with this opinion.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/161351p.pdf

Panel: Ambro, Smith, and Fisher, Circuit Judges

Argument Date: September 27, 2016

Date of Issued Opinion: November 17, 2016

Docket Number: Nos. 16-1351, 16-1926, 16-1927 & 16-1928

Decided: Reversed and remanded

Case Alert Author: Brooke Hutchins

Counsel: Philip D. Anker, Esq. [Argued], Danielle Spinelli, Esq., Joel Millar, David Gringer, Isley Gostin, James H. Millar, Esq., Todd C. Shiltz, Esq., Norman L. Pernick, Esq., Counsel for Appellant DE Trust Co; Daniel J. DeFranceschi, Esq., Jason M. Madron, Esq., Mark D. Collins, Esq., Andrew R. McGaan, Esq. [Argued], James H.M. Sprayregen, Esq., Marc Kieselstein, Esq., Chad J. Husnick, Esq., Steven N. Serajeddini, Esq., Edward O. Sassower, Esq., Michael A. Petrino, Esq., Counsel for Appellees EFIH; Joshua K. Brody, Esq., Gregory A. Horowitz, Esq. [Argued], Thomas M. Mayer, Esq., Jeffrey S. Trachtman, Esq., Laura D. Jones, Esq., James E. O'Neill, III, Esq., Robert J. Feinstein, Esq., Stephanie Wickouski, Esq., Counsel for Appellant Computershare Trust Co.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 11/21/2016 01:35 PM     3rd Circuit     Comments (0)  

November 18, 2016
  Carlton Baptiste v. Attorney General United States of America - Third Circuit
Headline: 18 U.S.C. §16(b) is void as unconstitutionally vague under the Due Process Clause of the Fifth Amendment due to its failure to clearly define "crime of violence"

Area of Law: Due Process Clause of Fifth Amendment, Statutory Interpretation

Issue(s) Presented: Does the definition of a "crime of violence" provided in 18 U.S.C. §16(b) render the statute void for vagueness under the Due Process Clause of the Fifth Amendment?

Brief Summary: The Third Circuit reviewed petitioner Carlton Baptiste's order to be removed as an alien issued by the Board of Immigration Appeals due to a conviction defined as a "crime of violence" and at least two convictions for crimes involving moral turpitude, or an extreme indifference to the value of human life. Baptiste, a native of Trinidad and Tobago, was convicted in 2009 for an aggravated felony, which is defined as a "crime of violence" pursuant to 18 U.S.C. §16(b). According to federal statute, aliens who are convicted of aggravated felonies after admission to the United States are removable.
Mirroring a recent decision by the Supreme Court which held that the definition of "violent felony" was unconstitutionally vague, the Third Circuit similarly held in the case at bar that the definition of a "crime of violence" in 18 U.S.C. §16(b) was unconstitutionally vague under the Due Process Clause of the 5th Amendment. Using the categorical approach of first defining "crime of violence" and then comparing the definition to the conviction statute of an aggravated felony, the Third Circuit did not find the definitions of "ordinary case" or "substantial risk" required to establish a crime of violence under §16(b) to be clear and give "fair notice of the conduct it punishes." Therefore, the Third Circuit found §16(b) to be subject to arbitrary enforcement and rendered it void.
However, the Third Circuit affirmed that Baptiste was still subject to removal due to his multiple convictions involving crimes of moral turpitude.

Extended Summary: Carlton Baptiste, a native of Trinidad and Tobago, sought review of a decision by the Board of Immigration Appeals ordering his removal as an alien due to his convictions of an aggravated felony and at least two convictions involving moral turpitude. In 2009, Baptiste was convicted of second-degree aggravated assault pursuant to New Jersey law. The Department of Homeland Security began removal proceedings against Baptiste in 2013 due to the classification of his 2009 conviction as a "crime of violence" pursuant to 18 U.S.C. §16 and therefore, was convicted of an aggravated felony pursuant to 8 U.S.C. §1227(a)(2)(A)(ii).
According to federal law, an alien who is convicted of an aggravated felony after admission to the United States is removable. 18 U.S.C. §16 defines an aggravated felony as a "crime of violence" imposing a prison sentence of at least one year. The Third Circuit used the categorical approach to determine if Baptiste's 2009 conviction was indeed an aggravated felony. To employ the categorical approach, the Third Circuit first examined the definition of a "crime of violence" and then compared that definition to the statute of conviction to determine if "aggravated felony" as defined in the statute of conviction was categorically a crime of violence.
The Third Circuit noted that 18 U.S.C. §16(b) defines a "crime of violence" as a "felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Further, the categorical approach required the Third Circuit to apply the definition of a crime of violence to the statute of conviction, which stated that an aggravated assault occurs if the perpetrator "attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." Therefore, the Third Circuit inquired whether recklessly causing serious bodily injury to another was categorically a crime of violence under §16(b).
The Third Circuit adopted the "ordinary case inquiry" to determine if a crime presents a "substantial risk" of the use of force, thus categorizing it as a crime of violence under §16(b). To define the "ordinary case" of reckless second-degree assault, the Third Circuit evaluated the conduct that is usually or normally used in the commission of the crime. However, the Third Circuit concluded that a variety of conduct can usually or normally be employed to commit reckless second-degree assault, noting specifically conduct that (1) "constitutes an intentional use of force;" (2) "presents a substantial risk of the intentional use of force; and" (3) presents no risk of the intentional use of force."
The Third Circuit contended that only judicial experience and "common sense" led it to the definition of the "ordinary case" of reckless second-degree assault to be conduct that "presents a substantial risk of the intentional use of force" and thus, categorically a crime of violence under §16(b). Because this reasoning invited arbitrary evaluation of the "ordinary case" of the commission of the crime, the Third Circuit determined that the definition of "ordinary case" was vague. Also, the Third Circuit noted that §16(b) provided no example offenses of a crime of violence and thus, failed to provide any guidance to the courts. Because the "ordinary case" and "substantial risk" analysis required by §16(b) were unconstitutionally vague, as it did not provide "fair notice of the conduct it punishes" required by the Due Process Clause of the Fifth Amendment, the Third Circuit invalidated the statute. Therefore, the invalidation of §16(b) rendered Baptiste's 2009 conviction of an aggravated felony void, as it could not be categorically defined as a crime of violence.
Regardless, the Third Circuit found that Baptiste was still removable as he was convicted of at least two crimes, his 2009 conviction and a conviction in 1978 for assault and battery, involving moral turpitude. Ultimately, the Third Circuit remanded Baptiste's petition to the Board of Immigration Appeals to determine if he was eligible for relief from removal due to his 2009 conviction no longer being categorized as an aggravated felony.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/144476p.pdf

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

Argument Date: April 5, 2016

Date of Issued Opinion: November 8, 2016

Docket Number: No. 14-4476

Decided: Granted in part, denied in part, remanded in part

Case Alert Author: Katherine A. Osevala

Counsel: Michael L. Foreman and Penelope A. Scudder, counsel for Petitioner; Jennifer J. Keeney, Jesse M. Bless, Anthony C. Payne and Colette J. Winston, counsel for Respondent.

Author of Opinion: Circuit Judge Greenaway, Jr.

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 11/18/2016 01:15 PM     3rd Circuit     Comments (0)  

November 17, 2016
  Sharif v. United Airlines, Inc. and United Continental Holdings, Inc.
FMLA Leave Fraud Does Not Pay for Globetrotting United Airlines Worker

Areas of Law: Labor and Employment, Family and Medical Leave Act (FMLA)

Issue Presented: Whether an employee, who fraudulently took FMLA leave, has sufficient evidence to show that the employer's reasons for disciplining him were pre-textual and the true reason for the discipline was retaliatory.

Brief Summary:
Masoud Sharif took FMLA leave in the middle of an extensive trip to South Africa. His employer, United Airlines, investigated him and found that he had taken the leave fraudulently. When questioned about the leave, Mr. Sharif presented inconsistent narratives. United placed him on leave without pay for dishonesty and fraudulently taking leave. Mr. Sharif retired and sued United for retaliation under the FMLA. The United States Court of Appeals for the Fourth Circuit upheld a grant of summary judgment for United. The court held that Mr. Sharif did not have sufficient evidence to show that United's reasons for disciplining him were a pretext for retaliation. It further admonished that those who fraudulently take FMLA leave cannot take advantage of FMLA's protective provisions.

Extended Summary: On March 16th 2015, Masoud Sharif and his wife embarked on an extended vacation in South Africa. The two took approximately twenty days of leave from their employer, United Airlines. There was just one bump in the plan. Mr. Sharif could not get a co-worker to cover his March 30th shift. Nonetheless, the couple departed for South Africa without reserving return flights.

On March 30th at 7:00 a.m. Cape Town time, Mr. Sharif called United Airlines and left a message informing his employer that he would be taking medical leave under the Family Medical Leave Act (FMLA). Mr. Sharif suffers from panic attacks and was entitled to intermittent leave under the FMLA.

On March 31st, the Sharifs had still not made any reservations to return to Washington. Instead, they flew to Milan to visit Mr. Sharif's niece. Finally, on April 3rd, the Sharifs returned to Washington in time for Mrs. Sharif's next shift.

The United Airlines Employee Resource Center noted that Mr. Sharif had taken just one day of FMLA leave during his long vacation. When they discovered that he had done the same in September 2013, they informed a supervisor, who commenced an investigation. In the course of the investigation, Mr. Sharif was given the opportunity to explain himself to supervisors with a union representative present. Mr. Sharif first said that he was not scheduled to work that day. Then, he said that he did not remember calling out. Finally, he claimed he had started looking for a flight home on March 28th so that he could return for his shift and celebrate Persian New Year in Pittsburgh. He told the investigators that when he could not find a flight back to Washington for his shift he had a panic attack and called United to take leave under the FMLA.

United did not find Mr. Sharif's shifting narrative compelling and suspended him without pay for dishonesty and fraudulently taking FMLA leave - violations of the United Airlines Working Together Guidelines. United made it clear that Mr. Sharif would soon be terminated. The Union suggested that Mr. Sharif retire. Fearing termination, Mr. Sharif retired.

Mr. Sharif filed suit under 29 U.S.C § 2615 (a)(1), which makes it unlawful for an employer to "interfere with, restrain, or deny the exercise or attempt to exercise, any right guaranteed under the" FMLA. United Airlines moved for summary judgment, which the District Court granted. On appeal, Mr. Sharif sought to show he had sufficient evidence that the reasons given for his suspension were pre-textual and that United had actually disciplined him for taking FMLA leave.

The Fourth Circuit explained that the purpose of the FMLA is to provide job security to individuals with serious health conditions who need to take extensive leave. These individuals must provide documentation of their condition to the employer and then may take leave "when medically necessary." The provision of the FMLA under which Mr. Sharif sued bolsters the Act's purpose by preventing retaliation.

In order to prove an employer's action was retaliatory, the employee must show that 1) he engaged in a protected activity; 2) the employer took an adverse action against him; and 3) a causal connection between the protected activity and the adverse action exists. To do this, the employee may submit direct evidence of retaliation or utilize the McDonnell Douglas burden-shifting scheme. Under McDonnell Douglas, if the employee makes a prima facie showing of retaliation, the employer must show a nondiscriminatory reason for the adverse action. Then the employee may show that this reason is pre-textual by showing that a) the reason is not credible; or b) the decision was more likely than not retaliatory.

Mr. Sharif mounted a series of attacks attempting to show United's reasons for disciplining him were pretext. The Fourth Circuit rejected all of these.

First, Mr. Sharif attempted to rehabilitate his own narrative. He claimed he had a panic attack after not being able to find a flight home in time for his shift and then called out of work. He also explained that he gave inconsistent accounts in the interview because he had another panic attack during the interview. The court did not find this explanation convincing in light of other facts. First, Mr. Sharif had called to take the FMLA leave twelve hours after the last flight that would have returned him to Washington in time for his shift. Second, the Sharifs flew to Milan from Cape Town and then returned to Washington in time for the wife's shift. Third, his narrative of these events constantly shifted. Finally, Mr. Sharif was unable to provide receipts for the standby seats he claimed he purchased when asked by United. Based on this information, the court found it reasonable for United Airlines to conclude that Mr. Sharif simply did not want to return from his vacation. The court also recounted United Airlines' history with FMLA leave. It found that United had approved every FMLA leave request Mr. Sharif had submitted over two years - a total of fifty-six days. The court concluded that "this is not the record of a Company that is historically hostile to FMLA leave."

Second, Mr. Sharif claimed that the Employee Resources Center's notice to a supervisor that triggered the investigation was direct evidence of retaliation. But, the notice was purely factual. It stated that Mr. Sharif had taken FMLA leave during vacation and that he had done so before in 2013. Mr. Sharif argued that it showed he would not have been disciplined but for his taking of FMLA leave. The court disagreed and determined that the notice actually suggested a nondiscriminatory reason for United's actions.

Mr. Sharif next argued that United had only conducted a cursory investigation and had not complied with procedure. He said this showed pretext. Contrarily, the court explained, United had taken the appropriate steps in its investigation and had even given Mr. Sharif the opportunity to explain himself and provide proof of his version of the events. United had reviewed Mr. Sharif's work calendar, flight records, Mr. Sharif's phone call from South Africa, and Mr. Sharif's seat reservation history. But, Mr. Sharif stated that more was required - verification of his anxiety disorder, an independent check of seats on flights, and more opportunity to consult with the union. The court found United's actions sufficient. All that is required on the part of the employer is a "reasonably informed and considered decision." Mere failure to comply with procedure is insufficient to show pretext.

Finally, Mr. Sharif claimed that if he had skipped the shift rather than taking FMLA leave, he would not have received such sever discipline. So, the severity of the consequence for taking FMLA leave showed pretext. The court stated that addressing severity would make it a "super-personnel department." The consequences, however, seemed reasonable for fraud and dishonesty.

The court admonished that the FMLA serves the purpose of protecting employees who need intermittent leave. Thus, it cannot be fraudulently invoked. And, the court explained, the Department of Labor has issued regulations that disallow employees who fraudulently obtain FMLA leave from invoking FMLA protections.

Dishonest employees, the court remarked, pose a special risk to airlines that are charged with providing transportation services to the public. The court upheld summary judgment for United.

To read the full opinion, click here.

Panel: WILKINSON and FLOYD, Circuit Judges, and IRENE M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

Argument Date: 09/21/2016

Date of Issued Opinion:
10/31/2016

Docket Number: No. 15-1747

Decided: Affirmed by published opinion

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

Counsel: ARGUED: Robert Scott Oswald, THE EMPLOYMENT LAW GROUP, P.C., Washington, D.C., for Appellant. Hugh Scott Johnson, Jr., PCT LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Stephen Z. Chertkof, HELLER, HURON, CHERTKOF & SALZMAN, PLLC, Washington, D.C., for Amici Curiae. ON BRIEF: Andrea M. Downing, THE EMPLOYMENT LAW GROUP, P.C., Washington, D.C.; Richard T. Seymour, LAW OFFICE OF RICHARD T. SEYMOUR, P.L.L.C., Washington, D.C., for Appellant. Angela H. France, PCT LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Erik D. Snyder, LAW OFFICES OF ERIK D. SNYDER, Washington, D.C.; Alan R. Kabat, BERNABEI & WACHTEL, PLLC, Washington, D.C.; Matthew C. Koski, NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, Oakland, California, for Amici Curiae.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/17/2016 09:15 AM     4th Circuit     Comments (0)  

  Ripley v. Foster Wheeler LLC -- Fourth Circuit
Scope of "Government Contractor Defense" Expanded to Apply in Failure to Warn Cases

Areas of Law: Products Liability, Federal Jurisdiction

Issue presented: Whether the "government contractor defense" is available to defendants in failure to warn cases.

Brief Summary: The United States Court of Appeals for the Fourth Circuit rejected Eastern District of Virginia guidance which limited the "government contractor defense" to design defect cases. The same rationales that the Supreme Court offered for the defense in design defect cases apply equally to failure to warn claims. Therefore, the Fourth Circuit held that the government contractor defense is available in failure to warn cases.

Extended Summary: Bernard W. Ripley was diagnosed with malignant mesothelioma twenty-five years after he stopped working as a boilermaker at Norfolk Naval Shipyard. Mr. Ripley and his wife brought suit in Virginia state court against multiple defendants including Foster Wheeler LLC and Foster Wheeler Energy Corporation ("Foster"). The complaint alleged that Mr. Ripley was exposed to asbestos contained in products that Foster manufactured for the Navy. The complaint further alleged that Foster failed to warn of the asbestos hazards.

Foster filed a notice of removal in the United States District Court for the Eastern District of Virginia. Foster claimed removal was appropriate under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). To remove a case under this statute, a defendant must establish: "(1) that it is a federal officer or 'a person acting under that officer,'" "(2) a 'colorable federal defense'; and (3) that the suit is 'for an act under color of office.'" Foster asserted a government contractor defense to satisfy the colorable federal defense element. The district court, however, remanded the case to state court, reiterating its "decades-old practice" of denying the government contractor defense in failure to warn cases. Without the defense, the district court did not have federal subject matter jurisdiction.

Foster appealed, asking the Fourth Circuit to reverse the remand order. The Fourth Circuit reversed and remanded the case to the federal trial court, holding that the government contractor defense is available in failure to warn cases and instructing the district court to determine whether Foster presented sufficient proof to warrant removal under the federal officer removal statute.

The Fourth Circuit began by reviewing the United States Supreme Court case Boyle v. United Technologies Corp., 487 U.S. 500 (1988). In Boyle, the Court announced that "design defects in military equipment do not give rise to state-law tort claims if" the three elements of the government contractor defense are satisfied. The Court offered two rationales for the defense. First, separation of powers suggests that the judiciary should be hesitant to interfere with complex military decision-making made by the branches constitutionally delegated with the war powers. Second, if government contractors are required to take on a higher risk of liability, they will pass those costs on to the government; meaning that the supply of contractors, as well as research and development in military equipment, will decrease.

After the Fourth Circuit reviewed both of these rationales, it held that the government contractor defense may apply in failure to warn cases for two reasons. First, the Eastern District of Virginia was an "outlier" in failing to recognize the government contractor defense in failure to warn cases. The Second, Fifth, Sixth, Seventh, Ninth and Eleventh Circuits have all applied the defense to failure to warn cases. Second, the rationales articulated by the Supreme Court for applying the defense in design defect cases apply with equal force to failure to warn cases. The judiciary should be hesitant to interfere with the complex warning and labeling requirements particular to military procurement contracts and specifications. Furthermore, the effect on government contractors is the same regardless of whether they are forced to take on a higher risk of liability for design defect or failure to warn claims.

To read the full opinion, click here.

Panel: Judges Traxler, Diaz, and Thacker

Argument Date: 09/22/2016

Date of Issued Opinion: 11/1/2016

Docket Number: No. 15-1918

Decided: Reversed and remanded by published opinion.

Case Alert Author: Annie McGuire, Univ. of Maryland Carey School of Law

Counsel:
ARGUED: Erik David Nadolink, WHEELER TRIGG O'DONNELL, LLP, Denver, Colorado, for Appellants. William Harty, PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for Appellee. ON BRIEF: Anthony B. Taddeo, Jr., David M. Sturm, Matthew D. Joss, TADDEOSTURM PLC, Richmond, Virginia, for Appellants. Robert R. Hatten, Hugh B. McCormick, III, PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for Appellee.

Author of Opinion: Judge Thacker

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/17/2016 08:35 AM     4th Circuit     Comments (0)  

November 10, 2016
  Dingle v. Stevenson -- Fourth Circuit
Roper v. Simmons Does Not Retroactively Invalidate a Guilty Plea

Areas of Law: Criminal Law, Habeas Corpus

Issue Presented: Whether Roper v. Simmons, the United States Supreme Court's decision that invalidated the death penalty for juvenile offenders, may be applied retroactively to invalidate a defendant's guilty plea, where the dependent pled guilty to avoid the death penalty.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that Roper, a substantive rule, did not apply retroactively to invalidate Dingle's guilty plea for three reasons. First, Roper applies only to sentences of capital punishment, while Dingle received a life sentence with the possibility of parole. Second, the Supreme Court has not suggested that a substantive rule stretches beyond the proscribed sentence to reopen guilty pleas with a different sentence. Third, Roper does not undermine the voluntariness of Dingle's guilty plea. Therefore, the Fourth Circuit affirmed the district court's dismissal of Dingle's habeas corpus petition.

Extended Summary: In 1993, Ronald Donald Dingle ("Dingle"), a 17-year-old juvenile at the time of his offense, was charged by the state of South Carolina with murder and a number of other crimes. The state intended to seek the death penalty against Dingle. Dingle pled guilty to all the charges in exchange for life imprisonment with the possibility of parole.

In 2005, the Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), which held that imposing capital punishment on juvenile offenders violated the Eighth Amendment. In 2013, Dingle filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of South Carolina. Dingle argued that Roper articulated a substantive rule that applied retroactively to his case and, therefore, his guilty plea should be abrogated. The district court found that Roper did not apply to situations where a defendant pled guilty to a non-capital sentence to avoid the possibility of a capital sentence. The district court denied Dingle's petition in its entirety.

Dingle appealed to the Fourth Circuit. The Fourth Circuit granted a certificate of appealability on one issue: "whether Roper v. Simmons, 543 U.S. 551 (2005), may be applied retroactively to invalidate Dingle's guilty plea where, pre-Roper, he allegedly pled guilty to avoid the death penalty."

The Fourth Circuit acknowledged that Roper was a substantive rule. However, in Roper, the Supreme Court made clear that its holding should be construed to apply only to capital punishment. As Dingle did not receive the death penalty, the Fourth Circuit held that Roper did not apply to Dingle's case.

The Fourth Circuit observed that the death penalty operated only as part of the calculus in Dingle's plea negotiations. In the court's view, acknowledging that Roper might have altered the calculus was "a far cry from finding that its substantive rule applie[d]." Citing Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Fourth Circuit explained that the Supreme Court has not yet suggested that a substantive rule stretches beyond the proscribed sentence to reopen guilty pleas with a different sentence. Pleading guilty typically entails a deliberate choice to accept the risks and rewards of a deal, and that decision may "not be casually set aside on the basis of buyer's remorse."

The Fourth Circuit explained that this principle was applied in Brady v. United States, 397 U.S. 742 (1970), a case similar to Dingle's case. In Brady, a criminal defendant was death penalty eligible and pled guilty to avoid capital punishment. When a subsequent Supreme Court decision would have made the defendant ineligible for the death penalty, the defendant urged that he be permitted to withdraw his plea. The Supreme Court rejected this argument, reasoning that "[t]he fact that Brady did not anticipate United States v. Jackson does not impugn the truth or reliability of his plea."

The Fourth Circuit held that although Roper altered the calculus underlying Dingle's decision to accept a plea agreement, it did "not undermine the voluntariness of his plea." Therefore, the Fourth Circuit affirmed the district court's dismissal of Dingle's petition.

To read the full opinion, clickhere.

Panel: Judges Wilkinson, Motz, and Harris

Argument Date: 09/20/2016

Date of Issued Opinion: 10/25/2016

Docket Number: No. 15-6832

Decided: Affirmed by published opinion

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids, Michigan, for Appellant. Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON BRIEF: Alan Wilson, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/10/2016 04:37 PM     4th Circuit     Comments (0)  

  Carlson v. Dyncorp Int'l LLC -- Fourth Circuit
Whistleblower Friendly: Fourth Circuit Introduces "Objectively Reasonable Belief" Standard

Areas of Law: Whistleblower Law, Civil Procedure

Issue Presented: Whether a court should apply an "objectively reasonable belief" standard in determining if an employee made efforts to stop a False Claims Act violation under the whistleblower provision of that statute.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court should have applied an "objectively reasonable belief" standard, instead of a "distinct possibility" standard, in determining whether the plaintiff engaged in a protected activity by making efforts to stop an FCA violation. Nevertheless, the Fourth Circuit affirmed the district court's dismissal of the plaintiff's claim. The Fourth Circuit noted that the plaintiff's belief that his employer (the defendant) was violating the FCA was not objectively reasonable, because the defendant's under-billing of the government was not an FCA violation.

Extended Summary: The False Claims Act (FCA)'s whistleblower provision, 31 U.S.C 3730(h)(1), protects a government contractor's employee from the contractor's retaliatory conduct as a result of "lawful acts done by the employee . . . in furtherance of an action under this section" (the first prong) or "other efforts to stop [one] or more violations of this subchapter" (the second prong). In other words, the two kinds of protected activity are: 1) activity that supports an FCA action against the employer alleging a fraud on the government, and (2) activity that is part of an effort to stop an FCA violation. To establish a prima facie case under this provision (and thus survive a motion to dismiss), the employee must plausibly allege that he engaged in one of these two kinds of protected activity.

Carlson, a Director of Stabilization and Governance at government contractor DynCorp International, LLC (DynCorp), raised concerns with his supervisors about lower-than - average indirect costs that DynCorp included in its bid for a government contract. Carlson also informed his supervisors about DynCorp's other irregular accounting and billing practices. The supervisors did not address his concerns. Carlson was soon fired by DynCorp and was told his termination was due to a reorganization.

In the district court, Carlson filed a lawsuit against DynCorp under the FCA whistleblower provision for retaliatory termination. Carlson claimed that his questioning DynCorp's accounting and billing practices constituted an effort to stop an FCA violation, the second prong of the whistleblower provision. He also claimed that he was terminated by DynCorp in retaliation for engaging in his protected activity. The U.S. District Court for the Eastern District of Virginia dismissed Carlson's complaint without prejudice under Rule 12(b)(6) for failure to state a claim. Carlson re-filed, and the district court dismissed his amended complaint with prejudice for the same reason. In reaching its decision, the district court applied a "distinct possibility" standard established by Eberhardt v. Integrated Design & Const., Inc. Under this standard, an employee engages in protected activity "when the conduct reasonably could lead to a viable FCA action." 167 F.3d 861 (4th Cir. 1999).

The Fourth Circuit held that the "distinct possibility" standard did not apply to the second prong for three reasons. First, because the second prong specifically states "other efforts," applying the "distinct possibility" standard renders the second prong "nonsensical." Second, the "distinct possibility" standard no longer existed once Congress excised the relevant language from the provision in 2009. Third, applying the "distinct possibility" standard to both the old and the new language would render the latter a nullity, in contradiction to a canon that courts engaged in statutory interpretation must "give each word some operative effect."

The Fourth Circuit then "assume[d], without deciding," that Carlson's proposed "objectively reasonable belief" standard applied. Under this standard, efforts to stop an FCA violation constitute protected activity where "those efforts are motivated by an objectively reasonable belief that the employer is violating, or soon will violate, the FCA." In adopting the "objectively reasonable belief standard," the court noted that the 6th, 7th, 8th, and 9th Circuits have already adopted this standard. Second, the "objectively reasonable belief" standard aligns with the Fourth Circuit's treatment of similarly structured whistleblower provisions in Title VII, the Age Discrimination in Employment Act, and the Americans with Disability Act.

Applying the "objectively reasonable belief" standard, the Fourth Circuit held that Carlson failed to show that his belief that DynCorp was violating the FCA was objectively reasonable. The court found that all Carlson accused DynCorp of doing was under-billing the government on existing contracts. Noting that the intent of the FCA was to "reach all types of fraud . . . that might result in financial loss to the Government," the court held that under-billing would not cause such loss and was, thus, not an FCA violation.

To read the full opinion, click here.

Panel: Chief Judge Gregory, Circuit Judges Motz and Thacker

Argument Date: 03/01/2016

Date of Issued Opinion: 08/22/2016

Docket Number: No. 14-1281

Decided: Affirmed by unpublished opinion.

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: Jacob Madison Small, J. MADISON PLC, McLean, Virginia, for Appellant. Edward T. Ellis, LITTLER MENDELSON, P.C., Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Andrew B. Rogers, LITTLER MENDELSON, P.C., McLean, Virginia, for Appellee.

Author of Opinion: Chief Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/10/2016 01:04 PM     4th Circuit     Comments (0)  

  Upstate Citizens for Equality v. United States of America - Second Circuit
Headline: Second Circuit Affirms District Court's Finding that Entrustment of New York Oneida Indian Nation Land to Federal Government for Tribe's Benefit and Use was Constitutional

Area of Law: Constitutional

Issue Presented: Was the entrustment of Indian land under the Indian Reorganization Act of 1934 permissible if neither the Indian tribe nor the government continuously held or supervised the land?

Brief Summary: The Oneida Indian Nation Tribe ("the Tribe") sought to have a portion of central New York land held in trust for the Tribe's benefit by the federal government pursuant to § 5 of the Indian Reorganization Act of 1934 to, among other things, allow the Tribe to continue operating its Turning Stone Casino on part of that land. In May of 2008, the Department of the Interior accepted 13,000 acres of central New York land into trust for the Tribe. Plaintiffs, local New York towns and residents, filed suit claiming that the entrustment process was unconstitutional and infringed on New York State's sovereignty. The United States District Court for the Northern District of New York granted the federal government's motion for summary judgment. On the plaintiffs' appeal, the Second Circuit affirmed. The Second Circuit held that the federal government has broad authority in dealing with Indian affairs and the entrustment for the Tribe's benefit was proper even if all of the land sat within a single state and the federal supervision of the land was not continuous, and the entrustment did not violate the United States Constitution's Enclave Clause - which requires state consent for certain federal assertions of jurisdiction over state land - because the federal government does not have "exclusive" jurisdiction over the land in question.

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...1d2b862d310/1/hilite/

Extended Summary: The Oneida Nation Tribe ("the Tribe") is a federally recognized Indian tribe situated in central New York. Under the 1788 Treaty of Fort Schuyler, the Tribe sold all but 300,000 acres of their land to New York. In 1794, the federal government entered into the Treaty of Canandiagua, which acknowledged the Treaty of Fort Schuyler, and guaranteed the free use and enjoyment of the reservation for the Tribe. The Tribe continued, however, to sell portions of their land leaving only 32 acres remaining by 1920.

In the 1990s, the Tribe began acquiring parcels of land that were originally party of the Tribe's reservation, eventually opening the Turning Stone Resort Casino on their land. In an earlier action by the town where the casino is located to evict the Tribe from the land for nonpayment of property taxes, the Second Circuit held that because the land was originally part of the earlier treaties, the Tribe was exempt from state property taxes. The United States Supreme Court disagreed, but suggested that the Tribe utilize § 5 of the Indian Reorganization Act of 1934 ("IRA"), which would allow the Tribe to reestablish sovereign authority over the territory by allowing the land to be "taken in the name of the United States in trust for the [] Tribe." 25 U.S.C. § 465. In May 2008, upon the Tribe's request, the Department of the Interior announced its decision to accept approximately 13,000 acres of the land into trust.

Plaintiffs, two New York towns, select residents, and a civic organization, challenged the Secretary of the Interior's decision in federal district court. The United States District Court for the Northern District of New York granted the government's motion for summary judgment on the plaintiffs' claims that the land-into-trust mechanism was unconstitutional and infringed on state sovereignty in addition to asserting the Department of the Interior did not have the authority to take lands in trust for the Tribe.

Plaintiffs argued that the Indian Commerce Clause did not permit the federal government to take action when the action would take place entirely within a single state. The Second Circuit rejected this argument, noting the exceptionally broad power of the federal government in the context of Indian affairs and, citing Supreme Court's 1989 decision in Cotton Petroleum Corp. v. New Mexico, distinguished between the Commerce Clause and the Indian Commerce Clause - finding the latter not containing an implicit "interstate" limitation.

Additionally, Plaintiffs asserted that the federal entrustment, by requiring the state to cede some of its authority to the federal and tribal governments, unconstitutionally infringed on New York's sovereign rights. The Second Circuit held that even though the federal supervision of the Tribe's land was not continuous, it did not preclude Congress from acquiring the land on behalf of the Tribe, even if New York lost some of its governmental power over the land, citing another Supreme Court decision that highlighted the broad federal power to deal with Indian affairs.

The Plaintiffs also argued that the Enclave Clause required Congress to obtain the state legislature's express consent before taking land into trust for Indians. The rarely invoked Enclave Clause ensures that "places on which the security of the entire Union may depend [are not] in any degree dependent on a particular member of it." The Second Circuit found the Enclave Clause inapplicable, however, because it requires that the federal government have "exclusive" jurisdiction for the clause to apply and states still maintain some jurisdiction over the land in trust.

Finally, the Second Circuit found the Plaintiffs assertions that the Tribe was not eligible to be the beneficiary of land entrustment based on the interpretation of "Indians" and "tribe" unpersuasive. The Second Circuit affirmed the district court's judgment that the entrustment of the Tribe's land was proper.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...1d2b862d310/1/hilite/

Panel: Circuit Judges Livingston, Chin, and Carney

Argument Date: 5/3/2016

Date of Issued Opinion: 11/9/2016

Docket Numbers:
15-1688, 15-1726

Decided: Affirmed.

Case Alert Author: Scott L. Wenzel

Counsel: David Brown Vickers, for Upstate Citizens for Equality, Inc.; Cornelius D. Murray, O'Connell and Aronowitz, for Town of Vernon, Town of Verona, Abraham Acee, and Arthur Strife; J. David Gunter, United Sates Department of Justice, for the United States of America, Sally M.R. Jewell, Micahel L. Conner, and Elizabeth J. Klein.

Author of Opinion: Judge Carney

Circuit: Second Circuit

Case Alert Circuit Supervisor:
Elyse Diamond

    Posted By: Elyse Diamond @ 11/10/2016 11:07 AM     2nd Circuit     Comments (0)  

November 8, 2016
  Al Shimari, et al. v. CACI Premier Technology, Inc., et al. -- Fourth Circuit
Fourth Time's the Charm? Fourth Circuit Decides Applicability of Political Question Doctrine to Abuse at Abu Ghraib Prison

Areas of Law: Constitutional Law

Issue Presented: Whether the district court erred in dismissing appellant's complaint as non-justiciable under the political question doctrine, where that complaint alleged abuses suffered at the hands of a government contractor at the Abu Ghraib prison in Iraq.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit vacated the dismissal of the appellant's complaint by the United States District Court for the Eastern District of Virginia, in the fourth appearance of this case before the court. The district court had held that the complaint presented a non-justiciable political question because a judicial decision on the complaint (by former detainees of the Abu Ghraib prison in Iraq against a military contractor) would question sensitive military judgments. However, the Fourth Circuit found the district court erred by conducting an incomplete analysis into whether the military had direct control over the actions of the defendant and therefore outlined new rules as to when government contractors are shielded from judicial review under the political question doctrine. The case was remanded for the district court to reexamine its subject matter jurisdiction over the case based on the new rules.

Extended Summary: In 2008, four Iraqi nationals filed suit against CACI Premier Technology, Inc. (CACI), alleging repeated and systemic abuse by the defendant's employees, while they were detained by the United States at the Abu Ghraib prison in Iraq in 2003 and 2004. CACI is a government contractor that performed interrogation services for the military at Abu Ghraib during the period of the appellants' detention. The appellants were ultimately released from Abu Ghraib without charges, but allege in the complaint that CACI employees committed acts involving torture, war crimes, and cruel, inhuman, or degrading treatment during the period of their incarceration and all in violation of the Alien Tort Statute. The appellants also filed common law tort claims, including assault and battery, sexual assault and battery, and intentional infliction of emotional distress. The appellants assert that the alleged acts of abuse occurred because there was a command vacuum at the prison, in that military leaders failed to exercise control over the actions of the CACI interrogators and low-level military officers.

The instant appeal is the fourth time this case has been before the Fourth Circuit. The last time the case was before the court, the Fourth Circuit remanded the case back to the district court to conduct jurisdictional discovery on the issue of whether the political question doctrine barred the plaintiffs' claims. In that decision, the court declined to decide the political question issue because of a limited appellate record, but instructed the district court to undertake a factual inquiry as to the extent of the military's actual control over CACI interrogators and then to decide whether the claims implicated the political question doctrine.

On remand, the district court dismissed the complaint finding the claim presented a non-justiciable political question; more specifically, the district court found the military exercised direct control over interrogations at the prison, which would require an improper inquiry into sensitive military judgments under the political question doctrine. The district court also held that it lacked any judicially manageable standards to resolve the claims.

The appellants filed this appeal to the Fourth Circuit, asserting that the district court erred in finding the military had direct control over interrogations and in failing to evaluate whether the military had actually exercised such control over the actions of CACI interrogators. The appellants also argued that their claims would not require an evaluation of sensitive military judgments because the claims challenged the legality, not the reasonableness, of CACI's conduct. Finally, the appellants argued that the district court did indeed have manageable standards to resolve the claims.

The court first noted that a claim is not shielded from judicial review merely because it arises from action taken under orders of the military. In re KBR, Inc., Burn Pit Litigation, 744 F.3d 326, 333 (4th Cir. 2014). In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court established a six-factor test to aid courts in determining whether a case presents a political question barred from judicial review. Then, in Taylor v. Kellogg Brown & Root Services, Inc., 658 F.3d 402 (4th Cir. 2011), the Fourth Circuit distilled the six Baker factors into two factors to determine whether a court has subject-matter jurisdiction in a civil liability suit against a government contractor: (1) whether the government contractor was under the direct control of the military, and (2) whether a decision on the merits of the claim would require the court to question actual and sensitive military judgments. An affirmative response to either factor will generally trigger the political question doctrine.

Discussing the first factor from Taylor, the court in the instant case found that the district court failed to properly examine the level of direct control the military had over the actions of CACI. The district court found evidence that the military had formal control over the actions of CACI interrogators in the form of a command structure, outlined procedures, and various memoranda establishing the rules of interrogation. That court concluded such evidence was enough to satisfy the first Taylor prong, and dismissed the complaint without inquiring into the level of actual control. The Fourth Circuit, however, rejected the district court's conclusion and found there was evidence that the district court had ignored of the military's failure to exercise actual control. For example, the district court failed to evaluate a government report concluding that the higher ranking officers at the prison failed to supervise their subordinates.

The court laid out two new rules to aid the district court on remand in deciding this first Taylor factor. First, the Fourth Circuit instructed that when a contractor engages in a lawful action under the actual control of the military, the contractor's action will be considered a de facto military decision shielded from judicial review under the political question doctrine. Second the Fourth Circuit instructed that when a contractor engages in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine because the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity. In other words, the actions of a contractor can only be shielded from judicial review under the first Taylor factor if they both were committed under actual control of the military and were lawful.

The court then turned to the second Taylor factor, which considers whether judicial review will require the district court to question military judgments. The court concluded that the district court analysis was incomplete because it failed to draw the distinction between lawful and unlawful conduct as related to the military. The court stated that unlawful actions cannot be based on military expertise and judgment, so claims alleging unlawful conduct applicable to the CACI employees will fall outside the political question doctrine. As a result, the court ordered that the district court must, on remand, separate justiciable claims based on unlawful actions from those that actually question military decisions and are therefore shielded from judicial review. The court also noted that statutory allegations against a government contractor, such as the one in this case involving the Alien Tort Statute, are generally justiciable because adjudication of those claims only requires a court to state the law and apply the facts to it, a traditional judicial function that does not require a judgment on military decisions. According to the court, some of the alleged conduct will undoubtedly be subject to judicial review as clearly unlawful, such as sexual assaults and beatings, while others may be shielded, but the court declined to make a comprehensive determination on those decisions.

The court also ruled that the district court does indeed have manageable standards to resolve the issues herein on remand. The court stated that although the substantive international law at issue in the complaint may be unfamiliar and complicated, it is the function of the judiciary to decide such issues via interpretation of statutory terms and established international norms, as other federal courts have done before. The court ruled that the district court cannot abdicate the normal judicial role just because of the complexity of the issues presented.

Panel: Judges Keenan, Floyd, and Thacker

Argument Date: 05/12/2016

Date of Issued Opinion: 10/21/2016

Docket Number: No. 15-1831

Decided: Vacated and remanded by published opinion

Case Alert Author: Patrick J.L. Dillon, University of Maryland Carey School of Law

Counsel: ARGUED: Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York, for Appellants. John Frederick O'Connor, Jr., STEPTOE & JOHNSON, LLP, Washington, D.C., for Appellee. ON BRIEF: Katherine Gallagher, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York; Robert P. LoBue, PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York; Shereef Hadi Akeel, AKEEL & VALENTINE, P.C., Troy, Michigan; Jeena Shah, CONSTITUTIONAL RIGHTS & INTERNATIONAL HUMAN RIGHTS CLINIC, Newark, New Jersey, for Appellants. Stephen I. Vladeck, Washington, D.C.; Charles S. Barquist, Los Angeles, California, Betre M. Gizaw, MORRISON & FOERSTER LLP, Washington, D.C., for Amici Professors of Constitutional Law and Federal Courts. Eric L. Lewis, A. Katherine Toomey, James P. Davenport, Waleed Nassar, LEWIS BAACH PLLC, Washington, D.C.; Melissa Hooper, HUMAN RIGHTS FIRST, New York, New York, for Amici Retired Military Officers. Dror Ladin, Hina Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Amici American Civil Liberties Union Foundation, Amnesty International, and Human Rights Watch. George M. Clarke, III, BAKER & MCKENZIE LLP, Washington, D.C.; Alberto Mora, Carr Center For Human Rights Policy, HARVARD KENNEDY SCHOOL, Cambridge, Massachusetts, for Amicus Alberto Mora. William J. Aceves, CALIFORNIA WESTERN SCHOOL OF LAW, San Diego, California; Deena R. Hurwitz, International Human Rights Law Clinic, AMERICAN UNIVERSITY, Washington, D.C., for Amicus Juan E. Mendez. L. Kathleen Roberts, Nushin Sarkarati, THE CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California; Michael E. Tigar, Oriental, North Carolina; Ali A. Beydoun, UNROW HUMAN RIGHTS IMPACT LITIGATION CLINIC, Washington, D.C., for Amici Abukar Hassan Ahmed, Dr. Juan Romagoza Arce, Zita Cabello, Aziz Mohamed Deria, Carlos Mauricio, Gloria Reyes, Oscar Reyes, Cecilia Santos Moran, Zenaida Velasquez, and Bashe Abdi Yousuf. Lawrence S. Ebner, Lisa N. Himes, Tami Lyn Azorsky, Jessica C. Abrahams, DENTONS US LLP, Washington, D.C., for Amici Professional Services Council-The Voice of the Government Services Industry, and Coalition for Government Procurement. Raymond B. Biagini, Daniel L. Russell Jr., Herbert L. Fenster, COVINGTON & BURLING LLP, Washington, D.C., for Amicus KBR, Incorporated.

Author of Opinion: Judge Keenan

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 02:48 PM     4th Circuit     Comments (0)  

  Simms v. United States - Fourth Circuit
Collateral Source Rule Permits Plaintiff's Recovery Despite Medicaid Payments

Areas of Law: Medical Malpractice, Federal Tort Claims Act

Issues Presented: 1) Whether the district court erred in calculating damages awarded to plaintiff for her son's past and future medical expenses; 2) whether the district court erred in measuring plaintiff's damages using the amount medical providers billed, rather than the amount the Medicaid program paid to providers; and 3) whether the district court erred in failing to hold a post-verdict prejudgment collateral source hearing.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court 1) properly awarded plaintiff damages attributable to her child's past medical expenses pursuant to West Virginia's "collateral source rule"; 2) correctly measured plaintiff's damages using the amount medical providers billed for her son's care, rather than the amount the West Virginia Medicaid program paid to providers; and 3) erred in failing to hold a post-verdict prejudgment collateral source hearing. However, the court vacated the district court's judgment with respect to damages awarded for past and future medical expenses and remanded the case to the district court for failure to hold a collateral source hearing.

Extended Summary: Misty Simms received prenatal care at a federally-supported health care center in West Virginia. In February 2008, Simms' physician detected potential fetal abnormalities during a routine ultrasound while Simms was eighteen weeks pregnant. The physician did not inform Simms of the concerns. Three months later, after a series of follow-up appointments, Simms learned that her fetus' brain was extremely underdeveloped, her child would never walk or talk, and would be severely mentally disabled. By then, Simms was in her third trimester and West Virginia law prohibited her from terminating her pregnancy. Simms gave birth to a son who was severely disabled and in an ongoing "vegetative state." He is now eight-years-old and has required twenty-four-hour care and monitoring throughout his life. To date, his care has cost over two million dollars in medical expenses. In 2011, Ms. Simms brought a wrongful birth action against the federal government under the Federal Tort Claims Act (FTCA). The district court found the government liable and awarded her over twelve million dollars in damages, including past billed medical expenses and future medical expenses for her son's care over a twenty-one-year life expectancy. The government appealed, challenging only the court's award of damages for past and future medical expenses.

First, the government argued that Simms did not have a right to recover past medical expenses because Medicaid paid those expenses. Under West Virginia law, a parent who brings a wrongful birth suit is entitled to recover the costs of raising a child with birth defects. The Fourth Circuit determined that such damages include medical costs attributable to the birth defects before and after the child reaches age 18. Further, parents are entitled to such recovery because of their legal obligation to support their child. The court found that Simms was entitled to recovery because she had a legal obligation to support her child and the health care center's negligence increased the weight of that obligation. Moreover, citing Kenney v. Liston, 760 S.E.2d 434, 440 (W. Va. 2014), the court reasoned that the collateral source rule protects payments made to or on behalf of an injured party from a third party such as insurance including Medicaid. Thus, the court held, the collateral source rule protected Simms' Medicaid payments and prohibited the government from offsetting Simms' damages based on Medicaid payment of her son's medical expenses.

Second, the government argued that even if the collateral source rule applied, the district court erred by calculating Simms' damages based on the amount her son's medical providers billed, rather than the amount the Medicaid program actually paid. The Fourth Circuit rejected this argument as well, noting that under West Virginia law, the proper measure of damages for medical expenses is the reasonable value of necessary medical services regardless of the amount actually paid. Citing Kenney, the court determined that benefits conferred by public payers, such as the West Virginia Medicaid program, do not alter the collateral source rule analysis. Thus, the court concluded, proof of the original medical bill is prima facie evidence that the expense was necessary and reasonable regardless of the amount paid and held that the district court did not err in calculating Simms' damages.

Finally, the government argued that the district court erred in refusing to reduce the damages award pursuant to West Virginia's Medical Professional Liability Act. That statute entitles a defendant to a post-verdict prejudgment hearing regarding a plaintiff's payments received from collateral sources. The court noted that the district court did not hold a collateral source hearing pursuant to the Act before it entered judgment. The court reasoned that a hearing was necessary for the district court to determine whether the statute entitled the government to a damages reduction and whether the Medicaid program may recover from Simms by subrogation, lien or reimbursement. Accordingly, the court vacated the district court's judgment with respect to damages awarded for past and future medical expenses and remanded the case to the district court to hold the requisite collateral source hearing.

To read the full opinion, click here.

Panel: Wynn and Harris, Circuit Judges, and Biggs, District Judge

Argument Date: 01/27/2016

Date of Issued Opinion: 10/07/2016

Docket Number: No. 15-2161

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

Case Alert Author: Yvette Pappoe, Univ. of Md. Carey School of Law

Counsel: Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Mark Davis Moreland, MORELAND & MORELAND, Lewisburg, West Virginia, for Appellees. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; R. Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellant. Rachel Hanna, LAW OFFICE OF RACHEL HANNA, Lewisburg, West Virginia, for Appellees.

Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

Edited: 11/10/2016 at 12:11 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 11:57 AM     4th Circuit     Comments (0)  

  Holloman v. Markowski et al. -- Fourth Circuit
Pro Se Litigant Cannot Overcome Heavy Burden of Proof After Officer Fatally Shoots Her Son

Areas of Law: Fourth Amendment

Issues Presented: Whether a litigant who fails to prove widespread or flagrant violations of one's constitutional rights meets the Monell requirements to establish municipal liability under 42 U.S.C. § 1983. Whether a litigant overcome qualified immunity and establish officer liability for use of unreasonable and excessive force without precedent that the force used was unreasonable and excessive.

Brief Summary: In an unpublished per curiam decision, the United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of Plaintiff-Appellant's municipal liability and excessive force claims in this 42 U.S.C. § 1983 action. Plaintiff-Appellant Marcella Holloman brought this case against Baltimore City and two individual police officers in the United States District Court for the District Court of Maryland. The District Court granted the City's motion to dismiss and the officers' motion for summary judgment. The Fourth Circuit affirmed the District Court's decision, relying on the United States Supreme Court decision in Monell v. Dept. of Social Servs. of City of New York, 436 U.S. 658 (1978). Monell established that a Plaintiff "must point to a persistent and widespread practice of municipal officials" where the duration and frequency of such practice demonstrate that the policymakers (1) "had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their deliberate indifference." The Fourth Circuit found that Holloman's claims were too speculative to plausibly claim municipal liability. Additionally, using the Fourth Amendment's "objective reasonableness standard," the Fourth Circuit found the officers' use of force was not excessive. The Fourth Circuit affirmed the District Court's decision.

Extended Summary: Marcella Holloman was hosting a children's birthday party at her home when her son Maurice Donald Johnson, who suffered from bipolar disorder, came home and began breaking pieces of furniture in his bedroom. Hearing the sound of breaking glass, Holloman went up to Johnson's room and told him that she would take him to the hospital for psychiatric treatment after the party. Johnson replied that she would have to call the police to take him because he would not go voluntarily. Holloman and her daughter then removed the children from the home while Johnson continued to destroy personal property around the home. Johnson threw his mattress onto the front lawn and began tearing it apart. Holloman locked him out of the home and called for the police. Johnson kicked the front door, and ripped the back screen door off its hinges. Officers Paul Markowski and Gregory Bragg arrived at Holloman's home in response to the 911 call. Holloman notified the officers of Johnson's psychiatric issues, and explained that he would not stop his destructive behavior. She suggested that the officers use a Taser to bring her son under control, but asked them to not shoot Johnson.

The officers went to the back door and asked Johnson to calm down. Johnson responded by lunging at Officer Markowski, pinning him on the ground with his knees, and fighting him. Officer Bragg's efforts to pull Johnson off of Officer Markowski were unsuccessful. Officer Bragg then fired at least two gunshots, wounding and later killing Johnson.

Filing pro se, Holloman brought this 42 U.S.C. § 1983 action before the United States District Court for the District Court of Maryland against Baltimore City (Mayor Stephanie Rawlings-Blake), the Baltimore City Police Commissioner, Baltimore City Council and Officers Markowski and Bragg, individually. The District Court granted both the City's motion to dismiss and the Officers' motions for summary judgment. Holloman appealed to the Fourth Circuit. The two claims before the court were: the municipal liability claim and the excessive force claim.

The Fourth Circuit first addressed the municipal liability claim, relying on the Supreme Court's decision in Monell v. Dept. of Social Servs. of City of New York, 436 U.S. 658 (1978). There, the Supreme Court "held that municipalities face liability under § 1983 if a municipal policy or custom itself causes a deprivation of constitutional rights." Holloman claimed that the City failed to supervise and train its employees on how to interact with the mentally ill and that it had a general policy, pattern, and/or practice of failing to discipline its officers' conduct.

Monell established two requirements necessary to prevail on a §1983 claim against municipalities. First, a plaintiff needs to "point to a persistent and widespread practice of municipal officials" where the duration and frequency of such practice demonstrated that the policymakers (1) "had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their deliberate indifference." The Fourth Circuit continued that "sporadic or isolated violations of rights" were not sufficient to give "rise to Monell liability." Only evidence of "widespread or flagrant violations" will create such culpability.

Holloman presented four specific instances of on-duty officers in Baltimore City killing citizens. She also presented a Baltimore Sun newspaper article that reported City officers having shot ten individuals, eight of them fatally, and that some of those individuals suffered from a mental illness. The Fourth Circuit held that Holloman failed to present any facts to indicate that the officer shootings she presented involved constitutional violations or that the City failed to properly train or discipline its officers. In the court's view this deficiency meant that Holloman failed to meet the Monell requirements. Finding Holloman's claim too speculative to impose municipal liability, the Fourth Circuit affirmed the District Court's decision, and granted the City's motion to dismiss.

Next, the Fourth Circuit addressed Holloman's excessive force claim against Officers Markowski and Bragg. Using the Fourth Amendment's "objective reasonableness standard" the court analyzed the excessive force claim "from the perspective of a reasonable officer on the scene." The Fourth Circuit noted that government officials sued under §1983 are protected under "qualified immunity unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." A plaintiff may overcome an officer's qualified immunity only if she can demonstrate that (1) "with the facts viewed in the light most favorable to the Plaintiff, the officer's conduct violated a federal right, and" (2) that the "right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional." The Fourth Circuit reasoned that there was no precedent establishing that an officer's use of lethal force is objectively unreasonable and thus, constitutionally excessive when such force is used on an unarmed, yet physically resistant suspect, after the suspect has destroyed property, attacked an officer, and showed no signs of stopping such behavior. The Fourth Circuit concluded that the officers did not use constitutionally excessive force and affirmed the District Court's decision, granting the officers motion for summary judgment.

To read the full opinion, click here.

Panel: Judge Wilkinson, Motz, and Harris

Argument Date: 09/20/2016

Date of Issued Opinion: 10/07/2016

Docket Number: No. 15-1878

Decided: Affirmed by unpublished per curiam opinion.

Case Alert Author: Vanessa Destime, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Stephen Louis Braga, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Frederic Nelson Smalkin, Jr., William Rowe Phelan, Jr., BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Hardev Chhokar, Brian Remondino, Josh Robbins, Andrew Selman, Third Year Law Students, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. George Nilson, City Solicitor, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.

Author of Opinion: Per curiam

Case Alert Supervisor: Professor Renée Hutchins

Edited: 11/08/2016 at 12:44 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 11:26 AM     4th Circuit     Comments (0)  

  McCray v. Fed. Home Loan Mortg. Corp., et al. -- Fourth Circuit
Foreclosure Attorneys Can Be Considered Debt Collectors under the FDCPA

Areas of Law: Fair Debt Collection Practices Act

Issue Presented: Whether a law firm and its members are "debt collectors" as defined under the Fair Debt Collection Practices Act, when they, on behalf of creditors, pursue foreclosure against a debtor.

Brief Summary: The United States Court of Appeals for the Fourth Circuit reversed the district court's dismissal of the plaintiff's claim under the Fair Debt Collection Practices Act ("FDCPA") against a law firm and its members, because the district court erroneously found they were not "debt collectors" as defined under the FDCPA. The Fourth Circuit held that, as mandated by Powell, to constitute a "debt collector," a person must use a prohibited practice "in connection with the collection of any debt" or in an "attempt to collect any debt." The Fourth Circuit concluded that the defendants' actions surrounding the foreclosure proceeding, including sending a notice of intent to foreclose to the plaintiff, were "attempts to collect [a] debt" and, thus, the defendants were "debt collectors."

Extended Summary: The FDCPA, 15 U.S.C. § 1692a(6), defines the term "debt collector" to include "any person . . . who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." The definition, however, excludes such a person if his debt collection is "incidental to a bona fide fiduciary obligation." 15 U.S.C. § 1692a(6)(F)(i).

In 2005, Renee McCray ("McCray") took a loan from American Home Mortgage Corporation ("American Home") to refinance her house, giving American Home a 30-year note and a deed of trust on her house to secure repayment of the note. American Home subsequently sold the loan to the Federal Home Loan Mortgage Corporation ("Freddie Mac"), and Wells Fargo was retained to service the loan. In 2011, McCray, disputing a monthly billing statement, sent Wells Fargo a written request for information about the fees and costs that it was charging but received no response. After April 2012, McCray stopped making payments and went into default.

Wells Fargo retained Samuel I. White, P.C. ("the White Firm") to pursue foreclosure. In October 2012, the White Firm sent McCray a notice of intent to foreclose stating the nature of her default and the amount necessary to cure the default. The notice also stated that if McCray did not "bring the loan current . . . such as [by] repayment . . . , a foreclosure action may be filed in court." The notice concluded that the communication was "an attempt to collect a debt." Thereafter, several members of the White Firm were substituted as trustees ("the Substitute Trustees") on the deed of trust and filed for foreclosure in the Circuit Court for Baltimore City in February 2013.

Shortly after the Substitute Trustees commenced the foreclosure proceeding, McCray filed a lawsuit against Freddie Mac, Wells Fargo, the White Firm, and the Substitute Trustees in the United States District Court for the District of Maryland. McCray challenged the amount of her debt and the manner in which the defendants administered the loan. In particular, McCray alleged that the defendants failed to provide McCray with notices and requested information in violation of the FDCPA, the Truth in Lending Act ("TILA"), and the Real Estate Settlement Procedures Act ("RESPA").

The district court dismissed the FDCPA and TILA claims, and granted summary judgment to the defendants for the RESPA claim. With respect to the FDCPA claim against the White Firm and the Substitute Trustees, the only contested issue was whether these defendants were "debt collectors" as defined under the FDCPA. The district court found that the notice of intent to foreclose did not contain an "express demand for payment or specific information about her debt," and thus, was not an attempt to collect the debt. Accordingly, the district court concluded these defendants were not "debt collectors."

The Fourth Circuit affirmed the district court's dismissal of the TILA claim. However, the Fourth Circuit reversed the district court's dismissal of McCray's FDCPA claim against the White Firm and the Substitute Trustees. Citing Powell v. Palisades Acquisitions XVI, LLC, 782 F.3d 119 (4th Cir. 2014), the Fourth Circuit held that to be a "debt collector" under the FDCPA, a person needs only to have used a prohibited practice "in connection with the collection of any debt" or in an "attempt to collect any debt."

The Fourth Circuit found that the White Firm and the Substitute Trustees' activities were taken in connection with the collection of a debt or in an attempt to collect a debt for three reasons. First, citing Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373 (4th Cir. 2006), the Fourth Circuit explained that the plaintiff's "'debt' remained a 'debt' even after foreclosure proceedings commenced" and that the "[defendants'] actions surrounding the foreclosure proceeding were attempts to collect that debt." Second, the notice of intent to foreclose stated that these defendants were pursuing foreclosure because McCray had "missed one or more payments." Further, the notice stated that if McCray did not "bring the loan current . . . such as [by] repayment . . . , a foreclosure action may be filed in court." The notice also provided McCray with the nature of the default (such as the name of the lender and the date of default) and the amount necessary to cure the default. Third, the Fourth Circuit held that the defendants' actions in foreclosing on the property did not fall within the exception under 15 U.S.C. § 1692a(6)(F)(i) because the defendants' actions were not "incidental to their fiduciary obligation." Citing Wilson, the court held that foreclosure was "central" to the trustee's fiduciary obligation under the deed of trust. These factors led the court to conclude the defendants were "attempt[ing] to collect a debt."

Therefore, the Fourth Circuit concluded that the White Firm and the Substitute Trustees were "debt collectors" under the FDCPA. The Fourth Circuit remanded the case to the district court to determine whether the White Firm and Substitute Trustees, as debt collectors, violated the FDCPA.

To read the full opinion, click here.

Panel: Circuit Judges Niemeyer and Wynn, and District Judge Johnston

Argument Date: 05/10/2016

Date of Issued Opinion: 10/07/2016

Docket Number: No. 15-1444

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

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: Kenzie Marie Rakes, MEYNARDIE & NANNEY, PLLC, Raleigh, North Carolina, for Appellant. Robert Harvey Hillman, SAMUEL I. WHITE, PC, Rockville, Maryland; Michael S. Barranco, TREANOR POPE & HUGHES, P.A., Towson, Maryland, for Appellees.

Author of Opinion: Circuit Judge Niemeyer

Dissenting Opinion: District Judge Johnston on Part IV

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 10:05 AM     4th Circuit     Comments (0)  

  United States v. Barnett/United States v. Williams -- Fourth Circuit
Gang's "First Lady" Not Guilty by Association

Areas of Law: Criminal Law, Evidence, Criminal Procedure

Issues Presented: Whether the government provided sufficient evidence to support the defendant's conviction for conspiring to commit murder in aid of racketeering activity. Whether the District Court improperly admitted lay witness testimony related to the meaning of slang words. Whether the District Court erroneously instructed the jury regarding the "pattern of racketeering activity" required for conspiracy to violate RICO. Whether the District Court improperly sentenced the defendant as a career offender in light of the Supreme Court's holding in Johnson v. United States,135 S. Ct. 2551 (2015). Whether the government provided insufficient evidence to prove that a gang leader's girlfriend conspired to violate RICO.

Brief Summary: In an unpublished opinion, the United States Court of Appeals for the Fourth Circuit found no reversible error pertaining to Alan Barnett and affirmed his convictions and sentence. However, the Fourth Circuit concluded the government failed to provide sufficient evidence in Samantha Williams's case and reversed her conviction for conspiring to violate the Racketeer Influenced and Corrupt Organization Act ("RICO").

Extended Summary: This case arose out of a 134-count indictment charging twenty-eight individuals involved with the United Blood Nation gang ("UBN"). Formed at Riker's Island Prison in New York City, UBN operates through a hierarchical structure and consists of several sub-groups along the East Coast. Alan "Big Al" Barnett and Samantha "Lady Sam" Williams were both affiliated with a UBN sub-group called Gangster Killer Bloods, commonly known as "G-Shine." Barnett was the second highest-ranking member of the G-Shine division in North Carolina. Williams was the girlfriend of G-Shine's leader, and hence the organization's "first lady," serving as the "mouthpiece" for the leader during his incarceration.

In a joint trial, the jury convicted both Barnett and Williams of conspiring to violate the Racketeer Influenced and Corrupt Organization Act ("RICO"). The jury also convicted Barnett of conspiracy to commit murder in aid of racketeering activity, two counts of conspiring to commit Hobbs Act robbery, conspiracy to distribute and possession with intent to distribute cocaine base, illegal use of a communication device, and distribution of cocaine. The United States District Court for the Western District of North Carolina sentenced Barnett to 360 months in prison, and sentenced Williams to 72 months in prison.

On appeal, Williams challenged the sufficiency of the evidence supporting her RICO conspiracy conviction. To prove a RICO conspiracy, the government must show (1) that an enterprise affecting interstate commerce existed; (2) that the defendant knowingly and intentionally agreed with another person to participate in the enterprise's affairs; and (3) that the defendant knowingly and willfully agreed that she or another member would commit at least two racketeering acts. Rejecting the government's argument that Williams's role as "first lady" proved the second element, the Fourth Circuit held that it would not broaden RICO's scope to presume that any individual affiliated with a gang knows about and agrees to the commission of racketeering acts. The Fourth Circuit reversed Williams's conviction for RICO conspiracy for insufficiency of evidence.

Additionally, Barnett raised various challenges to his sentence and convictions for RICO conspiracy and conspiracy to commit murder in aid of racketeering activity, all of which the Fourth Circuit rejected. Regarding his convictions, Barnett argued that (1) there was insufficient evidence to prove that Barnett conspired to murder another inmate for the purpose of maintaining or increasing his position in UBN; (2) the District Court erroneously admitted lay witness testimony related to the meaning of slang words; and (3) the District Court erroneously instructed the jury on the standard required for RICO conspiracy. The Fourth Circuit rejected each of Barnett's contentions.

Regarding his sentence, Barnett argued that the District Court improperly sentenced him as a career offender. Citing the Supreme Court's recent invalidation of the residual clause in the Armed Career Criminal Act in Johnson v. United States, 135 S. Ct. 2551 (2015), Barnett argued that the District Court improperly designated him as a career offender under the United States Sentencing Guidelines. The Fourth Circuit held that any error was harmless, emphasizing that the District Court indicated that it would have issued a 360-month sentence without consideration of the sentencing guidelines. The Fourth Circuit therefore upheld Barnett's sentence and convictions.

To read the full opinion, click here.

Panel: Judges Agee and Wynn, and Judge Thomas D. Schroeder of the United States District Court for the Middle District of North Carolina, sitting by designation

Argument Date: 03/24/2016

Date of Issued Opinion: 10/12/2016

Docket Numbers: 14-4866 and 14-4885

Decided: Affirmed in part and reversed in part by unpublished opinion

Case Alert Author: Linda Morris, Univ. of Maryland Carey School of Law
Counsel: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina; Jeffrey William Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North Carolina, for Appellants. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant Williams. Jill Westmoreland Rose, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 09:47 AM     4th Circuit     Comments (0)  

November 7, 2016
  Tankersley v. Almand, et al. -- Fourth Circuit
Fourth Circuit Upholds Maryland Court of Appeals Suspension of Attorney for Refusal to Disclose Social Security Number

Areas of Law: Privacy Act, Attorney Discipline

Issue Presented: Whether the Maryland Court of Appeals' suspension of an attorney's law license for refusal to provide his social security number to the Client Protection Fund of the Bar of Maryland violates Section 7(a)(1) of the Privacy Act.

Brief Summary: The Maryland Court of Appeals suspended an attorney for refusing to submit his social security number to the Client Protection Fund. The attorney sued claiming the suspension was a violation of Section 7(a)(1) of the federal Privacy Act. The Maryland defendants claimed they had the power to compel the attorney to disclose his social security number under two federal acts, the Welfare Reform Act or the Tax Reform Act. The Fourth Circuit agreed. It held the Tax Reform Act gives states and their agents, including Maryland's Client Protection Fund, the power to collect social security numbers in order to administer taxes. As such, suspending the attorney for his refusal to submit his social security number was not a violation of Section 7(a)(1) of the Privacy act.

Extended Summary: The Maryland Court of Appeals is required by state statute, Md. Code Ann., Bus. Occ. & Prof. § 10-311, to set up a Client Protection Fund (the Fund). The Fund is used to "maintain the integrity of the legal profession" and "to reimburse losses caused by defalcations of lawyers." The Fund must provide to the Maryland Comptroller a list of all lawyers who have paid the annual fee to the Fund. This allows the Comptroller to determine if each lawyer has paid taxes. The Maryland Court of Appeals promulgated rules to comply and cited Section 405 of the federal Tax Reform Act in doing so. The Maryland General Assembly also enacted statutes to comply with the federal Welfare Reform Act. One of these, Md. Code Ann., Fam. Law § 10-119.3(e)(1), requires Maryland licensing authorities to collect applicant's social security numbers.

In accordance with the above laws and regulations, in 2009, then-Chief Judge Robert M. Bell of the Maryland Court of Appeals requested that all members of the Maryland Bar disclose their social security numbers to the Fund. About nine thousand attorneys did not comply and the Maryland General Assembly threatened the court with a large budget cut if it did not take action against the nine thousand. As a result, the Maryland Court of Appeals promulgated Maryland Rule 16-811.5(a)(1) (now rule 19-605(a)(1)), which requires Maryland attorneys to provide their social security numbers to the Fund or face suspension of their law licenses.

Michael Tankersley is a Virginia resident practicing law in the District of Columbia. He has maintained District of Columbia and Maryland bar memberships since 1986 and 1987, respectively. In 2013, the Fund asked Mr. Tankersley to provide his social security number. Mr. Tankersley declined citing identity theft concerns. Thereafter, the Maryland Court of Appeals suspended his law license. He had no prior disciplinary incidents.

Mr. Tankersley filed a lawsuit against James Almand (the Chair of the Fund), the other trustees of the Fund, and the judges and clerk of the Maryland Court of Appeals under Section 7(a)(1) of the Privacy Act. He claimed that Maryland Rule 16-811.5(a)(1) violates Section 7(a)(1) of the Privacy Act. Section 7(a)(1) of the Privacy Act provides that: "t shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number" except when required by other federal statute. Mr. Tankersley moved for summary judgment and the defendants cross-moved to dismiss or for summary judgment. The United States District Court for the District of Maryland dismissed Mr. Tankersley's complaint finding that the Welfare Reform Act and the Tax Reform Act supersede the Privacy Act. Mr. Tankersley appealed. The Fourth Circuit affirmed.

On appeal, the Fourth Circuit was tasked with answering the following questions: First, does either the Welfare Reform Act or the Tax Reform Act allow the Fund to compel Tankersley to disclose his social security number? Second, if neither act does so, does the Privacy Act create a Section 1983 private right of action? The second question would have been a question of first impression. However, the majority did not reach that question because it found the Tax Reform Act supersedes the Privacy Act.

The majority first found the Welfare Reform Act could not be used as the basis for compelling Tankersley's social security number. It explained that Section 666 of the Welfare Reform Act requires states to collect social security numbers from applicants for professional licenses and not those already licensed. Tankersley was a licensed attorney and not an applicant.

The majority next found the Tax Reform Act was expansive enough to empower the Fund to collect social security numbers. Section 405 of the Tax Reform Act allows any state, political subdivision or agency responsible for tax administration to collect social security numbers if it is done: 1) for administration of a tax; and 2) from individuals who appear to be affected by the state's tax laws. Mr. Tankersley argued that Section 405 of the Tax Reform Act did not allow the Fund to collect his social security number for three reasons: 1) the statutory requirement that the Fund provide the social security numbers to the Maryland Comptroller does not constitute the administration of a tax; 2) the Fund is not an entity responsible for administrating taxes; and 3) he did not appear to be affected by Maryland tax laws. The majority disagreed.

First, the Fund was collecting the social security numbers for the administration of a tax. That the Fund passed the numbers to the Comptroller was enough. Because Congress had not defined "administration of a tax," the court used the ordinary meaning of the words - "manag[ing] the operation" of something or putting something "into effect." The Court further stated that this expansive plain meaning definition was consistent with how "tax administration" was applied elsewhere in the comprehensive act as well as the meaning of these same words in the Internal Revenue Code.

Second, the Fund is "an entity that has administrative responsibility for taxes." The majority explained that the statute gave states the power to collect the social security numbers, but the states could only act through their agents. The Maryland Court of Appeals, an agent of Maryland, delegated authority to the Fund to collect the social security numbers.

Finally, the court found that Mr. Tankersley appeared to be affected by Maryland tax law. Although he lived in Virginia and worked in the District of Columbia, Mr. Tankersley appeared to be affected by Maryland tax law because his Maryland bar license gave him the ability to earn income in Maryland.

Judge Davis, in his partial dissent, disagreed with the majority's interpretation of the Tax Reform Act. He also reached the issue of whether the Privacy Act created a Section 1983 right.

Judge Davis explained that Section 405 of the Tax Reform Act should not be interpreted so expansively as to include the Fund's collection of attorney's social security numbers. First, Judge Davis explained that the Fund's collection of social security numbers was not for the purpose of administering a tax, as the Fund was not created for the purpose of administering tax law. Second, the Fund is not an entity that can collect social security numbers because it is not "an agency having administrative responsibility of the law involved." Judge Davis interpreted this language as referring to tax related agencies. Judge Davis also rejected the majority's agency argument stating that the Fund is an agent of the Maryland Court of Appeals not the state. Finally, Judge Davis found that Mr. Tankersley did not appear to be affected by Maryland tax law because he lives in Virginia and practices law in the District of Columbia.

Thus, Judge Davis reached the question of first impression: whether Section 7 of the Privacy Act creates a Section 1983 private right of action. He noted that the Ninth and Eleventh Circuits are split on this issue. Judge Davis found that Tankersley could bring a Section 1983 claim under the Privacy Act. Though the Act does not explicitly confer a private right of action and focuses on what states may not do, it states that individuals have the right not to disclose their social security numbers to government entities. This shows that the Act was intended to benefit people like Mr. Tankersley. Judge Davis found that this right was not too "vague and amorphous" for courts to enforce. Finally, he wrote that nowhere in the Act did Congress foreclose a Section 1983 suit. Thus, Mr. Tankersley had the right to bring a Section 1983 action under the Privacy Act.

The tension between the majority and dissent reflects competing concerns - the government's ability to administer its tax laws against citizen's concerns over the ability of the government to secure their data.

To read the full opinion click here.

Panel:
Circuit Judges Diaz and King, and Senior Circuit Judge Davis

Argument Date:
05/12/2016

Date of Issued Opinion: 09/13/2016

Docket Number: No. 15-1081

Decided:
Affirmed by published opinion

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

Counsel: ARGUED: Scott Matthew Michelman, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., for Appellant. Michele J. McDonald, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Julie A. Murray, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., for Appellant. Brian E. Frosh, Attorney General, Alexis Rohde, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

Author of Opinion:
Circuit Judge Diaz (Majority), Senior Circuit Judge Davis (Concurring in Part, Dissenting in Part)

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 04:22 PM     4th Circuit     Comments (0)  

  United States v. White -- Fourth Circuit
Fourth Circuit Vacates Sentence After Supreme Court's Landmark Decision in Johnson v. United States

Areas of Law: Criminal Law; Constitutional Law; Civil Procedure; ACCA; Sentencing

Issues Presented: Whether the district court erred in denying a defendant's motion to suppress evidence when an officer extended a traffic stop after noticing the smell of marijuana while conducting the traffic stop. Whether the district court erred in classifying appellant as a career criminal after the Supreme Court invalidated the residual clause of the Armed Career Criminal Act ("ACCA").

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the District Court did not err in denying a motion to suppress evidence because the arresting officer had reasonable suspicion to initiate and extend a traffic stop. However, the Court of Appeals held the District Court did err in sentencing appellant to enhanced punishment as a career criminal under the ACCA after the Supreme Court's decision in Johnson v. United States.

Extended Summary:
On July 9, 2013, Corporal Justin Doughty of the Charleston Police Department was on patrol in Charleston, West Virginia, when he observed a car veer out of its lane. Corporal Doughty pulled over the car to determine whether the driver was impaired. When Corporal Doughty approached the vehicle, he smelled an odor of burned marijuana emanating from the car. Corporal Doughty asked the driver to step out of the car and asked her several questions to determine whether she was impaired and why there was a marijuana odor. Then Corporal Doughty ordered the passengers out of the car to question them about the marijuana odor. During questioning, Corporal Doughty saw a firearm tucked in the side passenger seat where one of the passengers, Desmond Ra'Keesh White, had been sitting. Corporal Doughty placed White under arrest and called for back-up. White admitted the firearm belonged to him.

White was indicted in the United States District Court for the Southern District of West Virginia for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). White filed a motion to suppress evidence obtained from the traffic stop. The District Court denied the motion after finding reasonable suspicion supported the initial traffic stop because Corporal Doughty witnessed the car veer out of its lane. Additionally, the odor of marijuana provided reasonable suspicion for the extension of the traffic stop and probable cause to search the car where the firearm was recovered. After the denial of the motion, White entered a conditional plea. The agreement allowed White to plead guilty to being a felon in possession of a firearm while retaining his right to appeal the denial of the motion to suppress. During sentencing, White was classified as an armed career criminal under the Armed Career Criminal Act ("ACCA") based on his prior West Virginia state robbery conviction and three prior West Virginia state burglary convictions. White did not object to his classification as a career criminal. The District Court found that White was subject to the ACCA sentence enhancement and sentenced White to the mandatory minimum of 15 years imprisonment. White appealed his sentence and challenged the district court's denial of his motion to suppress.

The Fourth Circuit held that the district court properly denied the motion to suppress, but vacated White's sentence as a result of the Supreme Court's decision in Johnson v. United States.

As to the sentencing issue, White argued that his West Virginia burglary convictions were no longer violent felonies after the Supreme Court invalidated the residual clause of the ACCA. The government contended that White could not challenge his sentence because he had abandoned his claim. The government also maintained on the merits that the West Virginia burglaries qualified as violent felonies under the ACCA's enumerated burglary definition.

Resolving the preservation issue first, the court held that White had not abandoned the right to challenging his sentence by failing to include the claim in his initial brief to the court. As the Fourth Circuit explained, "when an intervening decision of [the] court or the Supreme Court affects precedent relevant to a case pending on direct appeal, an appellant may timely raise a new argument, case theory, or claim based on that decision while his appeal is pending without triggering the abandonment rule." White did not abandon his claim because he did not have the opportunity to bring it up before the Supreme Court's decision in Johnson v. United States, which was issued during the pendency of White's appeal.

The court then turned to consider whether White's prior burglary convictions qualified as violent felonies despite the invalidation of the residual clause of the ACCA. Reviewing the lower court's decision for plain error, the Fourth Circuit found that White needed to show: (1) there was an error; (2) the error was plain; and (3) the error affected substantial rights. In determining whether an error occurred, the Fourth Circuit turned to the Supreme Court's decision in Johnson v. United States. In that case, the Supreme Court held the residual clause of the ACCA is unconstitutionally vague and violates the due process clause. After invalidation of the residual clause, White's prior West Virginia burglary convictions did not qualify as predicate violent felonies under the ACCA. To be considered violent felonies, the West Virginia burglary convictions therefore needed to match the definition of burglary in the ACCA.

The court used the categorical approach to interpret the ACCA and found the West Virginia definition of burglary needed to be the same or narrower than the ACCA-enumerated generic burglary definition to qualify under the definition of burglary in the ACCA. The court found the West Virginia definition of burglary was broader than the generic ACCA definition of burglary, so the burglary convictions did not meet the ACCA definition of burglary. Consequently, White's burglary convictions were not violent felonies under the ACCA and White should not have been considered a career criminal under the ACCA. This error in determining whether White was a career criminal was plain error because the established law clearly determined there was an error. Additionally, the court found this error affected White's substantial rights because he would have received a maximum of 10 years in prison instead of a minimum of 15 years in prison had he been correctly sentenced. The Fourth Circuit vacated White's sentence and remanding the case to the district court for re-sentencing without the enhancement.

To read the full opinion, click here.

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In a second case, United States v. Harper, appellant challenged the district court's application of the ACCA based on a finding that his February 1997 offenses constituted multiple ACCA predicate crimes. The Fourth Circuit affirmed the district court's finding, reasoning that the defendant's offenses occurred at different times and in at least three different locations. Notably, the appellant there also argued that the ACCA's requirement that predicates be "committed on occasions different than one another" was unconstitutionally vague under Johnson v. United States, 135 S.Ct. 2551 (2015). The Fourth Circuit rejected this argument, holding that, unlike the ACCA's residual clause in Johnson, the ACCA requirement at issue had a workable standard and thus was not questionable.

To read the full opinion, click here.

Panel: Judges Agee, Wynn, and Schroeder

Argument Date: 03/24/2016

Date of Issued Opinion:
09/09/2016

Docket Number:
15-4096

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

Case Alert Author: Lauren Harrison, Univ. of Maryland Carey School of Law
Counsel: ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Jennifer Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Christian M. Capece, Federal Public Defender, Lex A. Coleman, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 04:13 PM     4th Circuit     Comments (0)  

  United States v. Garcia-Lagunas -- Fourth Circuit
Headline: Fourth Circuit Panel Disagrees Over Harm of Ethnically-Charged Evidence

Areas of Law: Evidence, Criminal Law

Issue Presented: Whether the government's use of ethnically-charged evidence to rebut appellant's assertion that he was too poor to have dealt in large quantities of drugs was harmless beyond a reasonable doubt.

Brief Summary: In a published opinion from a panel rehearing, the United States Court of Appeals for the Fourth Circuit affirmed the appellant's conviction for conspiracy to distribute or possess with intent to distribute cocaine, despite finding that the government committed non-constitutional error by using ethnically-charged evidence to rebut the appellant's defense that he was too poor to have dealt drugs in the amounts alleged by the government. The majority found the trial court erred in allowing expert testimony that all "Hispanic drug traffickers" send money they earn in the trade back to their native countries. Nonetheless, the court found the error harmless due to the strength of the government's case against the appellant. The court also remanded the case back to the United States District Court for the Eastern District of North Carolina after vacating the appellant's sentence because of a miscalculation of his Guidelines range. In dissent, Judge Davis vehemently disagreed with the majority's finding of harmless error.

Extended Summary: In 2012, the police arrested Alejandro Garcia-Lagunas in a trailer in rural Robeson County, North Carolina during execution of a search warrant. Police found the appellant inside the trailer with white powder under his nose appearing impaired. The appellant produced $600 in cash from his pocket upon police request, as well as a cell phone which matched a phone number given by the informant as one he used to communicate with his supplier. Later analysis of that phone's records connected it with hundreds of phone calls to multiple known drug dealers, several of whom testified against the appellant pursuant to plea agreements. During their search, in addition to the phone and cash, officers recovered a handgun, small baggies, body armor, digital scales, a small baggie of crack cocaine, and a bag containing 800 grams of a white powdery substance later found to be cocaine.

The appellant was charged with conspiring to distribute or possess with the intent to distribute 500 grams of cocaine and unlawfully reentering the United States after having previously been deported. He pleaded guilty to the charge of unlawful reentry, but proceeded to trial by jury on the drug conspiracy charge. At the trial, the defense elicited testimony on cross-examination as to the poor conditions of the trailer. This testimony was offered in support of the defense theory that the appellant was not a drug trafficker but rather a drug user. On redirect, the detective stated that "he had extensive experience investigating 'Hispanic drug traffickers,' and that 'they're very modest living' because 'they send the majority if not all of the proceeds back to their native countries.'" In response to a defense objection, the government argued that the testimony was relevant to rebut evidence about the poor conditions of the trailer. At the bench, the District Court stated, "I'm not quite sure what the relevance of all of this is, but I do know, based on my experience, that most Latins send money home whether they're drug dealers or not." The District Court then overruled the objection and the detective repeated his testimony to the jury, stating, "It is consistent with Hispanic drug traffickers not to misuse the drug proceeds and to send or get rid of the proceeds, send them to their native countries or their next over them in the drug trafficking organization." This line of testimony was referenced by the government in closing argument to counter the defense's theory of the case. The jury found the appellant guilty.

A pre-sentence investigation report (PSR) added three two-level enhancements to the appellant's criminal responsibility for possession of a dangerous weapon, threatening or directing the use of violence, and obstruction of justice. The defense objected to all the enhancements, but the court only sustained two of those objections. Those two rulings lowered the appellant's offense level to 36, which in turn yielded a Guidelines range of 188 to 235 months' imprisonment. Then, pursuant to an agreement between the appellant and the government relating to a proposed amendment to the Guidelines, the offense level was lowered again to 34, with a Guidelines range of 151 to 188 month's imprisonment. The District Court then sentenced the appellant to 188 months' imprisonment, but stated that it was "impos[ing] a sentence at the low end of the range because this constitutes the defendant's first felony conviction." The District Court also sentenced the appellant to 24 months' imprisonment on the unlawful reentry conviction, to be served consecutively to the sentence on the conspiracy charge.

In holding that the District Court did err, the Fourth Circuit cited the rule that "injection of a defendant's ethnicity into a trial as evidence of criminal behavior is self-evidently improper and prejudicial." United States v. Cruz, 981 F.2d 659, 664 (2nd Cir. 1992). Proceeding then to the harmless error analysis, the court outlined the standard for this inquiry: whether beyond a reasonable doubt a rational jury would have found the defendant guilty absent the error. Neder v. United States, 527 U.S. 1, 18 (1999).

The court found that a rational jury would have arrived at the guilty verdict even absent the error beyond a reasonable doubt because of the strength of the evidence introduced by the government at trial: the quantity of the drugs involved in the conspiracy, the voluminous phone records, circumstantial physical evidence found at the scene, and the testimony of multiple corroborative drug dealers. Unlike cases in which courts ruled that evidentiary errors were not harmless, the Fourth Circuit found that "what [the appellant] did with his earnings from the drug trade was not an element of the prosecution's case against him." The court also stated that "although the government repeated the offensive stereotype in its closing argument, the improper evidence did not pervade the trial." Finally, the court held that "the challenged testimony did not open the door to the admission of further damaging evidence that would otherwise not have come in."

Regarding the appellant's challenge to his sentence, the court reviewed the contentions for plain error. The court found that the District Court had committed such error by miscalculating his offense level. Although the District Court stated it would impose a sentence at the low end of the range, it did so from the wrong range by failing to take into account one of the sustained objections. Furthermore, the Fourth Circuit found this error affected the appellant's substantial rights because it added roughly three years of imprisonment to his sentence.

Judge Davis dissented from the majority opinion as to the harmless error holding. In Judge Davis' view, the Government failed to prove beyond a reasonable doubt that the ethnically charged generalization did not contribute to the jury's verdict. Judge Davis found merit in the evidence put forth by the defense that the defendant was too poor to have committed this large-scale conspiracy and stated that there were two compelling narratives in front of the jury. He found such competing narratives were the natural course for many trials and the government should not have the benefit of "blatantly foul blows...abetted by the trial judge, in the use of racial or ethnic entreaties aimed at undermining or dismissing outright the defense theory of the case." Judge Davis found this evidence to be quite persuasively used by the government in closing argument, as evidenced by the persuasive effect it had on the trial judge. Judge Davis wrote, "At a moment in our country's history when uncommon attention is being paid to issues of racial and ethnic stereotyping and consequent mistreatment, actual or threatened, this Court chooses to privilege the Government to employ, without consequence, irrelevant, prejudicial, and factually unwarranted evidence of blatant racial stereotyping to obtain a criminal conviction. In this moment, not even the ethnic heritage of distinguished federal judges is beyond trashing in the public sphere, and by a prominent candidate for the most powerful office on the planet, no less."

To read the full opinion, click here.

Panel: Judges Duncan and Diaz, and Senior Judge Davis

Argument Date: 09/17/2015

Date of Issued Opinion: 09/01/2016

Docket Number: No. 14-4370

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

Case Alert Author: Patrick J.L. Dillon, University of Maryland Carey School of Law

Counsel: ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Kelly Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 03:38 PM     4th Circuit     Comments (0)  

  Lund v. Rowan County, North Carolina -- Fourth Circuit
Headline: Lawmaker-Led Prayer at Public Board of Commissioners Meeting Constitutionally Permissible

Areas of Law: Constitutional Law

Issue Presented: Whether lawmaker-led invocations at a town Board of Commissioner's meeting violated the First Amendment.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held the lawmaker-led opening prayer at every Board of Commissioner meeting was permissible under the First Amendment because it was not coercive and lawmaker-led prayer has a rich history and tradition in both Congress and state legislatures.

Extended Summary: Rowan County, North Carolina opens their Board of Commissioners public meetings with Christian, lawmaker-led invocations. Appellees, a group of non-secular and non-Christian community members, challenged the Board's practice as a violation of the Establishment Clause of the First Amendment. They filed suit in the U.S. District Court for the Middle District of North Carolina because the prayer practice 1) unconstitutionally affiliated the Board with one particular faith - Christianity, and 2) coerced appellees into participating in the invocation as a condition of attendance. The District Court held that given then-controlling precedent, the lawmaker-led prayer made legislators impermissible "supervisors of prayer." The District Court acknowledged that the Supreme Court's Town of Greece decision, which upheld the introductory prayer at issue in that case, "dismantled" the Fourth Circuit's legislative prayer doctrine. Nonetheless, the District Court found a number of factual distinctions justified a result different from Town of Greece. In particular, the court emphasized that in the instant case the commissioners delivered the prayers, as opposed to clergy, deviating from the long-standing tradition of using a chaplain. Further, the District Court stressed that the Board's practice created a "closed universe of prayer-givers" that "inherently discriminates and disfavors religious minorities."

The Fourth Circuit reversed the judgment of the District Court and remanded with directions. The court analyzed the Supreme Court's 2014 decision in Town of Greece v. Galloway and held that lawmaker-led prayer is a historical practice that the country accepts and that the Board's practices did not implicate the concerns articulated in Town of Greece for finding invocations coercive. Further, the Fourth Circuit concluded that the lawmaker-led prayer was similar to that of the clergy-led prayer at issue in Town of Greece.

In a dissent, Judge Wilkinson discussed the conceptual differences between Town of Greece and the instant case. He noted that legislator-led prayer is the very embodiment of the state. Judge Wilkinson also highlighted several concerns with the Board of Commissioners in Rowan County, most importantly the fact that from November 2007 to the beginning of the lawsuit in March 2013, 139 out of 143 meetings began with legislators delivering prayers that explicitly referenced Christianity.

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

Panel: Judges Agee, Wilkinson, and Shedd

Argument Date: 01/27/2016

Date of Issued Opinion:
09/19/2016

Docket Number:
No. 15-1591

Decided: Reversed and Remanded by Published Opinion

Case Alert Author: Dena Robinson, Univ. of Maryland Carey School of Law

Counsel: Allyson Newton Ho, MORGAN, LEWIS & BOCKIUS LLP, Dallas, Texas, for Appellant. Christopher Anderson Brook, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, Raleigh, North Carolina, for Appellees.

Author of Opinion: Judge Agee

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 03:25 PM     4th Circuit     Comments (0)  

  Ghazzaoui v. Anne Arundel County, et al. -- Fourth Circuit
Headline: The Little Pro Se Litigant that Could: Fourth Circuit Rules that District Court Should Resolve Claims of Excessive Force and False Arrest

Areas of Law: Constitutional Law, Civil Procedure, Civil Law

Issue Presented: Whether the district court erred in granting the defense motion for summary judgment or erred in denying the plaintiff's motion for recusal.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held the district court improperly dismissed Ramez Ghazzaoui's excessive force and false arrest claims against Officer Dwayne Raiford because the parties disputed material issues of fact. The Fourth Circuit found the competing account of events, photographs, and video evidence was sufficient to send the case to a jury. The Fourth Circuit also remanded the case back to the district court because the court failed to rule on Ghazzaoui's claim that police unreasonably searched his bedroom. The court upheld the summary judgment motion again Corporal Doyle Holquist because he was not present at the start of the altercation and only assisted Raiford with the arrest. The court also dismissed Ghazzaoui's motion for recusal and request for a different judge, finding the request was unfounded.

Extended Summary:
Ramez Ghazzaoui filed a complaint alleging that police used excessive force and falsely arrested him after an altercation in Ghazzaoui's home. In the original complaint, Ghazzaoui claimed that on April 26, 2013, Officer Dwayne Raiford and Corporal Doyle Holquist entered his home shortly before midnight, after a community security guard notified the police, that Ghazzaoui's garage door was open. Ghazzaoui alleges that while he was sleep, police officers searched the first floor of his home before going to the second floor of the home where police found Ghazzaoui sleeping. In the complaint, Ghazzaoui says the officers requested to see his identification. However, once he produced his Maryland Driver's License the officers did not leave the home.

After an altercation with police, Ghazzaoui was arrested, and charged with: obstructing a police officer in the performance of his lawful duties, resisting arrest, failing to obey orders, and injuring a law enforcement officer engaged in the performance of his duties. All the charges were resolved in Ghazzaoui's favor. Ghazzaoui's complaint alleged he was falsely arrested, and police used excessive force in violation of 42 U.S.C § 1983, the Maryland Declaration of Rights, and Maryland tort law. The district court granted the defense motion for summary judgment and dismissed all of Ghazzaoui's claims.

The United States Court of Appeals for the Fourth Circuit, reviewing Ghazzaoui's excessive force claims de novo, found the district court correctly dismissed some claims on summary judgment, but improperly dismissed the entire suit. The Fourth Circuit analyzed the force a police officer uses under the Fourth Amendment's objective reasonableness standard to determine if the force was excessive. The Fourth Circuit ruled that the excessive force claim against Holquist could not survive summary judgment because Holquist only assisted Raiford with the arrest and did not see the initial altercation.

However, the court held that Ghazzaoui's excessive force claims against Raiford should proceed to a jury. Ghazzaoui contended that he complied with the officer's command to sit down, but was still thrown against a wall and then to the floor smashing his head on the ground, before he was arrested. Raiford contended that Ghazzaoui poked him with a pen, disobeyed orders to sit down, and fell to the ground while resisting arrest. The Fourth Circuit found the competing accounts of what happened, paired with photographs supporting Ghazzaoui's version of events, meant the disputed facts at issue should be resolved by a jury, not on summary judgment.

The Fourth Circuit also concluded that the district court improperly dismissed Ghazzaoui's false arrest claim on summary judgment. Under Maryland law, a false arrest claim can only survive summary judgment if the plaintiff can prove there was no probable cause for the arrest. Under Maryland law, a conviction is sufficient to prove probable cause, even if the judgment is reversed. However, Maryland law also recognizes that a conviction does not demonstrate probable cause if it was obtained by fraud, perjury, or other corrupt means. Similarly, under federal law, a § 1983 false arrest claim requires the plaintiff to establish the defendant caused the arrest without probable cause and that all the criminal charges were resolved in the plaintiff's favor. The Fourth Circuit noted that Ghazzaoui had photographs, and video footage that may suggest he was falsely arrested and that Raiford may have perjured himself in state court. Therefore, the Fourth Circuit ruled that Ghazzaoui's claim should proceed to a jury.

Finally, the Fourth Circuit found the district court ruling on the summary judgment motion did not address Ghazzaoui's claim that police conducted an unreasonable search of his bedroom. While Ghazzaoui won most of his claims on appeal regarding his summary judgment, the Fourth Circuit quickly dismissed his motion for a new judge, finding that Ghazzaoui's request for recusal based on claims of bias and corruption were unfounded.

To read the full opinion, click here.

Panel: Judges Niemeyer, Shedd, and Harris

Argument Date: 8/26/2016

Date of Issued Opinion: 9/8/16

Docket Number:
No. 15-2581

Decided: Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Case Alert Author: Fernando Kirkman, Univ. of Maryland Carey School of Law

Counsel:
Ramez Ghazzaoui, Appellant Pro Se. Hamilton F. Tyler, ANNE ARUNDEL COUNTY OFFICE OF LAW, Annapolis, Maryland, for Appellees.

Author of Opinion:
Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 02:05 PM     4th Circuit     Comments (0)  

  Calobrisi v. Booz Allen Hamilton, Inc. -- Fourth Circuit
Headline: Age or Gender Discrimination at Work? Me Too. Fourth Circuit Joins Six Circuit in Considering "Me-Too" Evidence with Griffin Factors

Areas of Law: Employment Law, Anti-Discrimination Law, Evidence

Issue Presented: Whether a court should analyze the admissibility of each piece of "other employee" evidence pursuant to Griffin factors when determining whether an employer's stated reason for demotion is a pretext for discrimination.

Brief Summary: The United States Court of Appeals for the Fourth Circuit reversed the District Court's grant of summary judgment to the defendant on discrimination and constructive discharge claims because the District Court failed to consider the plaintiff's proffered "other employee" evidence. The Fourth Circuit held that, to determine whether the defendant's stated reason for the plaintiff's demotion was a pretext for discrimination, the district court should have analyzed the admissibility of each piece of the "other employee" evidence pursuant to Griffin factors, and should have examined how closely related the "other employee" evidence was to the plaintiff's circumstances and theory of the case, as mandated by Sprint.

Extended Summary: If a plaintiff brings an employment discrimination claim under the McDonnell Douglas burden-shifting framework, the analysis proceeds in three steps. First, the plaintiff has the burden of establishing a prima facie employment discrimination case. Second, the employer must articulate a legitimate, non-discriminatory reason for taking the adverse employment action at issue. Third, the burden shifts back to the plaintiff to show that the stated reason for the adverse employment action is pretext for a discriminatory purpose. At the third step of the analysis, the plaintiff may help to establish pretext by offering "other employee" evidence. "Other employee" evidence is evidence that other similarly situated employees have allegedly encountered adverse employment actions similar to those that the plaintiff experienced.

As explained in Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008), a court must examine the admissibility of each piece of the "other employee" evidence - if the evidence is relevant under Rule 401, and, if so, whether it should nevertheless be excluded under Rule 403. The question of whether the "other employee" evidence is relevant is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.

Carla Calobrisi ("Carlobrisi"), a 55 year-old female Principal of Booz Allen Hamilton, Inc. ("Booz Allen"), was demoted to Senior Associate "due to workload," and many of her responsibilities were transferred to two younger women. After Calobrisi raised concerns that her demotion was the result of age and gender discrimination, her supervisor suggested that she leave Booz Allen. Calobrisi soon left Booz Allen, and her position was filled by a 31-year-old male.

Calobrisi filed a lawsuit against Booz Allen in the District of Columbia Superior Court, alleging sex-based discrimination under Title VII of the Civil Rights Act, aged-based discrimination under the Age Discrimination in Employment Act, and retaliation claims. Booz Allen removed the case to the United States District Court for the District of Columbia, and the case was then transferred to the United States District Court for the Eastern District of Virginia. The District Court granted summary judgment to Booz Allen on the retaliation and discrimination claims. With respect to the discrimination claims, the only contested issue was the third step under the McDonnell Douglas framework, i.e., whether Calobrisi produced sufficient evidence for a jury to conclude that the stated reason for her demotion was a pretext for a discriminatory purpose. Calobrisi alleged that Booz Allen maintained a glass ceiling that prevented female employees, particularly those who were older or in higher ranking positions, from advancing. To support this theory, Calobrisi offered "other employee" evidence, which included the testimony of seven middle-aged female former Booz Allen employees. The employees contended that they had been targeted for adverse employment actions similar to those that Calobrisi experienced. The District Court, however, summarily concluded this evidence would not be admissible at trial and refused to consider it when ruling on summary judgment.

The Fourth Circuit reversed the grant of summary judgment on the discrimination claims. Citing a Sixth Circuit case, Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012), the Fourth Circuit held that a court should consider the Griffin factors in determining the admissibility of "other employee" evidence. The Griffin factors include: (1) whether the other discriminatory behavior described is close in time to the events at issue in the case; (2) whether the same decision-makers were involved; (3) whether the witness and plaintiff were treated in a similar manner; and (4) whether the witness and plaintiff were otherwise similarly situated. The Fourth Circuit found the District Court did not individually analyze the admissibility of each piece of the "other employee" evidence pursuant to these Griffin factors. Moreover, the Fourth Circuit reasoned that the District Court's one-sentence admissibility analysis ignored both the similar treatment experienced by Calobrisi and other employee witnesses, and the overlap of several decision-makers at Booz Allen. Thus, the Fourth Circuit found the District Court failed to determine how closely related the "other employee" evidence was to Calobrisi's circumstances and theory of the case, as mandated by Sprint.

The Fourth Circuit remanded the case to the District Court to determine the admissibility of Calobrisi's proffered "other employee" evidence. In particular, the Fourth Circuit suggested that some of the other employees' testimony "appear[ed] relevant" based on the common decisionmakers involved in the witnesses' departures and the similarities of the departures' circumstances. For example, members of Booz Allen's all-male leadership team triggered several of the departures, and each departure featured an abrupt demotion or revocation of responsibilities after years of positive reviews.

To read the full opinion, click here.

Panel: Chief Judge Gregory, Judges Motz and Keenan

Argument Date: 03/24/2016

Date of Issued Opinion: 08/23/2016

Docket Number: No. 15-1331 and No. 15-1399

Decided: Affirmed in part; vacated and remanded in part with instructions by unpublished per curiam opinion.

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law
Counsel: Linda Marie Correia, CORREIA & PUTH, PLLC, Washington, D.C., for Appellant/Cross-Appellee. Stephen William Robinson, MCGUIREWOODS LLP, Tysons Corner, Virginia, for Appellee/Cross- Appellant. ON BRIEF: Amber C. Trzinski Fox, Jonathan C. Puth, CORREIA & PUTH, PLLC, Washington, D.C.; John R. Ates, ATES LAW FIRM, Alexandria, Virginia, for Appellant/Cross-Appellee. Melissa L. Taylormoore, Sarah A. Belger, MCGUIREWOODS LLP,Tysons Corner, Virginia, for Appellee/Cross-Appellant. Daniel B. Kohrman, Laurie A. McCann, Dara S. Smith, AARP FOUNDATION LITIGATION, Washington, D.C., for Amicus Curiae.
Author of Opinion: Per curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 11:48 AM     4th Circuit     Comments (0)  

  United States v. Alfaro - Fourth Circuit
Headline: Fourth Circuit Broadly Defines "Forcible Sex Offense" Under Sentencing Guideline 2L1.2

Area(s) of Law: Criminal Law, Immigration Law, Sentencing Guidelines

Issue Presented: Whether appellant's previous conviction of third degree sexual offense under § 3-307 of the Maryland Code constitutes a crime of violence under § 2L1.2 of the U.S. Sentencing Guidelines.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court properly found appellant's prior conviction of third degree sexual offense qualified as a crime of violence under the Sentencing Guidelines.

Extended Summary: Osmin Alfaro entered the United States illegally from El Salvador when he was a teenager. In 2003, Alfaro was convicted of third-degree sexual offense under § 3-307(a)(1) of the Maryland Code for sexually assaulting his then-estranged wife. Alfaro was deported in 2008 after failing to register as a sex offender in Maryland. He illegally re-entered the country in 2010. In 2014, he came to the attention of federal authorities and pled guilty to failing to register as a sex offender and illegal re-entry. The district court applied a 16-level sentencing enhancement after concluding that Alfaro's prior felony conviction of third-degree sexual assault qualified as a crime of violence - forcible sex offense - and sentenced him to 46 months' imprisonment.

On appeal, Alfaro challenged the district court's decision, arguing that while his offense was "forcible," it did not amount to a crime of violence because it did not qualify as a sex offense. Alfaro argued that for his conviction to qualify as a forcible sex offense under the Guidelines, the statute must require that the prohibited conduct be committed with an intent to gratify sexual urges. Because § 3-307(a)(1) can be violated with an intent to abuse, his conviction was not a crime of violence as defined by the Guidelines, Alfaro argued.

The court disagreed and determined that an intent to abuse was sufficient for a "forcible sex offense" and defined "sex offense" as an offense involving sexual conduct with another person. Applying a modified categorical approach, the court looked to the plain, ordinary meaning of the language used in the Guidelines to determine whether Alfaro's conviction qualified as a "forcible sex offense." The court reasoned that because "forcible sex offense" is not a traditional common-law crime, it would be "difficult, if not impossible" to employ the categorical approach of surveying the states' criminal codes to determine if Alfaro's prior conviction met the criteria of a crime of violence.

The court determined that "sex offense" simply refers to criminal offenses involving sexual conduct and reasoned that the Sentencing Commission purposefully did not limit crimes of violence to rape, but rather included all sexual offenses that are forcibly committed. Further, the court argued, the Commission's decision to resolve a circuit split and amend the Guideline to clarify that a sex offense may be forcible in the absence of physical force supports an expansive definition of "sexual offense" instead of the restrictive one Alfaro sought to apply. The court joined other circuits in defining the "sex offense" portion of "forcible sex offense" very broadly. Ultimately, the court held the district court did not err by treating Alfaro's prior conviction as a "forcible sex offense" under the Guidelines and affirmed his sentence.

To read the full opinion, click here.

Panel: Judges Traxler, Shedd, and Floyd

Argument Date: 03/24/2016

Date of Issued Opinion: 08/29/2016

Docket Number: No. 15-4102

Decided: Affirmed by published opinion

Case Alert Author:
Yvette Pappoe

Counsel: ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. James I. Pearce, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Leslie Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Sujit Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Author of Opinion:
Judge Traxler

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 11:20 AM     4th Circuit     Comments (0)  

  Friends of The East Hampton Airport, Inc. v. Town of East Hampton
Headline: Second Circuit Enjoins Three East Hampton Airport Noise-Control Laws

Area of Law: Aviation Law

Issue(s) Presented: Whether a town must comply with the procedural requirements of the Airport Noise and Capacity Act when enacting new laws for its airport, even if it is willing to forgo future federal funding for the airport.

Brief Summary: In order to reduce airport noise at its local public airport, the Town of East Hampton passed three laws: (1) a mandatory curfew on airport use from 11:00 p.m. to 7:00 a.m.; (2) an extended curfew on noisy aircrafts from 8:00 p.m. through 9:00 a.m.; and (3) a one round-trip limit-per- week on noisy aircrafts' airport use during a particular season. A group of plaintiffs, consisting of aviation businesses that use the East Hampton Airport, filed suit in the United States District Court for the Eastern District of New York, seeking an injunction against the enforcement of these laws. The district court enjoined one of the three laws, and both sides appealed. The Second Circuit ruled that all three laws should be enjoined because East Hampton had enacted them without complying with the procedural requirements of the Airport Noise and Capacity Act of 1990. The court rejected East Hampton's argument that it could avoid those requirements by disavowing future federal funding. To read the whole opinion, please visit http://www.ca2.uscourts.gov/de...a5bc5a7cdb6/2/hilite/

Extended Summary: The Town of East Hampton owns and operates the East Hampton Airport, which has both domestic and international flights. Aside from public use, the airport also serves thousands of private aircraft flights. Over the years, town residents complained about the noise emanating from the airport.

In 2014, the Town held public meetings and conducted a three-phase study, focusing on the main sources of the airport noise and determining which times of the year generated the most noise complaints from town citizens. As a result, the Town enacted three new laws: (1) a mandatory curfew on airport use from 11:00 p.m. to 7:00 a.m. (2) an extended curfew on noisy aircrafts from 8:00 p.m. through 9:00 a.m. (3) a one round-trip limit-per- week on noisy aircrafts' airport use during a particular season. In so doing, the Town did not comply with the procedural requirements of the Airport Noise and Capacity Act of 1990 ("ANCA"), which established a "national aviation noise policy" that applied to aircraft noise restrictions.

On April 21, 2015, five days after the Town enacted the laws, various aviation businesses filed suit in the U.S. District Court for the Eastern District of New York against the Town for declaratory and injunctive relief. Specifically, the businesses sought to prevent enforcement of the laws, arguing that the laws violated the ANCA's procedural requirements. The district court enjoined enforcement of one of the laws, and both sides appealed.

At the outset, the Second Circuit found that the aviation businesses had equitable jurisdiction to challenge the Town's laws. The court then concluded that all three laws should be enjoined, because the ANCA's procedural requirements - which the Town acknowledged had not been followed--applied to any public airports, regardless of federal funding status. The Town's disavowal of future federal funding for the airport was thus irrelevant. The court also looked outside of the statute's text, finding that legislative history and other regulations also mandated the same result. Congress was concerned with the uncoordinated response to airport noise complaints, which led Congress to regulate noise control at the national level. Thus, since the laws did not comply with ANCA's procedures, they were federally preempted and subject to the preliminary injunction sought by the plaintiffs.

Panel: Circuit Judges Jacobs, Calabresi, and Raggi

Argument Date: 06/20/16

Date of Issued Opinion: 11/04/16

Docket Number: Nos. 15-2334-cv(L), 15-2465-cv(XAP)

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

Case Alert Author: Samantha Hazen

Counsel: Kathleen M. Sullivan, W. Eric Pilsk, Kaplan, Kirsch & Rockwell, LLP, David M. Cooper, Quinn Emanuel Urquhart & Sullivan, LLP, for Defendant-Appellant-Cross Appellee, Lisa R. Zornberg, Helen A. Gredd, Jonathan D. Lamberti, Lankler Siffert & Wohl LLP, for Plaintiffs-Appellees-Cross-Appellants, Lauren L. Haertlein, General Aviation Manufacturers Association, Amicus Curiae in support of Plaintiffs-Appellees-Cross-Appellants

Author of Opinion: Circuit Judge Raggi

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 11/07/2016 09:57 AM     2nd Circuit     Comments (0)  

November 4, 2016
  United States v. Hector Soto-Zuniga - Ninth Circuit
Headline: The Ninth Circuit panel held that the district court abused its discretion by denying defendant pretrial discovery of the arrest and search statistics of the San Clemente Border Patrol checkpoint to prove that the checkpoint is unconstitutional because its primary purpose is to detect evidence of drug trafficking, rather than to control immigration, and

Areas of Law: Criminal Law, Fourth Amendment, Criminal Procedure, Pre-Trial Discovery

Issues Presented: Whether the district court abused its discretion in denying defendant's discovery motion for San Clemente's checkpoint search and arrest statistics in order to determine the constitutionality of the checkpoint which turns on whether its "primary purpose" is to control immigration or rather to interdict drug trafficking and other "ordinary criminal wrongdoing."

Whether the district court erred in its finding that defendant's discovery request for the government's investigation into Christian Rios Campos' drug smuggling operation was not material to his defense and was therefore not discoverable.

Whether the district court erred in denying defendant's motion to suppress the drug evidence on the basis that the Border Patrol agents lacked probable cause to search defendant's car.

Whether the district court erred in instructing the jury, using the Ninth Circuit pattern jury instructions, that "[a] reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation" because this phrasing interferes with the presumption of innocence.

Whether defendant's knowledge of drug type and quantity is an element of possession with intent to distribute in violation of 21 U.S.C § 841.

Significance: Border Patrol checkpoints have long been a clear exception to the Fourth Amendment prohibition of unreasonable searches and seizures. However, the Supreme Court emphasized, in City of Indianapolis v. Edmond, that it had never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing as opposed to policing the border or ensuring roadway safety. Here, the Ninth Circuit panel affirmed that the primary purpose of border patrol checkpoints should be to control immigration and not to interdict drug trafficking and, therefore, defendant has the right to discover the checkpoint's arrest statistics.

Brief Summary: Hector Soto-Zuniga ("Soto-Zuniga") was arrested at a Border Control checkpoint in San Clemente, California after Border Patrol agents found 2.9 kilograms of methamphetamine on the floor of Soto-Zuniga's car during a search. On a defense motion to suppress drug evidence seized from defendant's car at the checkpoint, Soto-Zuniga argued that the San Clemente checkpoint was unconstitutional and requested discovery of the checkpoint's arrest and search statistics. The district court denied Soto-Zuniga's motions to suppress.

Soto-Zuniga testified that, prior to being stopped at the San Clemente checkpoint, he gave a ride to three teenagers whom he did not know as a favor to his cousin's husband, Christian Rios Campos ("Rios"). The government stipulated that Rios was a drug smuggler who was known to recruit juveniles to smuggle drugs into the United States, which was significant to Soto-Zuniga's defense that the teenagers had planted the drugs in his car without Soto-Zuniga's knowledge. Soto-Zuniga moved to discover the government's investigation into Rios's drug smuggling operation on grounds that such discovery might identify the three teenagers. The district court denied Soto-Zuniga's motion and Soto-Zuniga was convicted and sentenced to six years in prison.

On appeal, the Ninth Circuit panel held that: (1) the district court abused its discretion by denying Soto-Zuniga's discovery request for the search and arrest statistics of the San Clemente border checkpoint, concluding that discovery of the checkpoint's search and arrest statistics was pertinent to the issue whether the checkpoint was unconstitutional under the Fourth Amendment because its primary purpose was to advance the general interest in crime control rather than to control immigration; and (2) the district court abused its discretion by finding that the documents gathered during the government's investigation into Rios's drug smuggling operation were not material to the defense and were, therefore, not discoverable because they were inadmissible evidence. The panel concluded that there exists a likelihood that discovery of these documents would have identified the teenagers and changed the outcome of the trial.

Extended Summary: Appellant Hector Soto-Zuniga ("Soto-Zuniga") was arrested at a Border Control checkpoint in San Clemente, California after Border Patrol agents found 2.9 kilograms of methamphetamine on the floor of Soto-Zuniga's car during a search. Soto-Zuniga was charged with possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

Before trial, Soto-Zuniga filed a motion to suppress the drugs seized from his car on grounds that they were the fruits of an unlawful search and seizure because the Border Patrol agents at the San Clemente checkpoint lacked probable cause to detain him and search his car. In an unsuccessful attempt to support his motion to suppress, Soto-Zuniga also filed a motion which sought discovery of statistics relating to the number and types of arrests and vehicle searches at the San Clemente checkpoint.

The district court held an evidentiary hearing on Soto-Zuniga's pretrial motions during which Border Patrol Agent Rabreau ("Rabreau") testified that the primary purpose of the San Clemente checkpoint was immigration inspection and that ninety percent of the arrests made were related to immigration. Rabreau further testified as to the events that led to Soto-Zuniga's arrest including that the smell of marijuana coming from Soto-Zuniga's car was the reason Border Patrol Agent Favela ("Favela") initially sent Soto-Zuniga to secondary inspection at the San Clemente checkpoint.

Notwithstanding Soto-Zuniga's sworn declaration and testimony that Soto-Zuniga had not smoked marijuana in more than five years, the district court denied defendant's motions to suppress and compel discovery on grounds that: (1) the sequence of events in the Border Patrol Agents' reports were consistent; (2) there was probable cause based on several factors, including the smell of marijuana, Soto-Zuniga's reported nervousness, the air fresheners, the loose tobacco, the cigarillo wrappers, and Agent Rodgers's report that Soto-Zuniga admitted to him that he had smoked marijuana in the car; (3) while Agent Rabreau was the only agent who claimed to smell the marijuana, other agents reported that Agent Rabreau had told them he smelled marijuana at the scene so it was not "a post-arrest revelation; and (4) Rabreau's testimony was sufficient to lead the district court conclude that the San Clemente checkpoint's primary purpose was immigration.

During the first trial, Soto-Zuniga sought specific jury instructions that differed from the Ninth Circuit pattern jury instructions on reasonable doubt. The district court rejected defendant's jury instructions in favor of the pattern jury instructions. Soto-Zuniga's first trial resulted in a mistrial because the jury was unable to reach a unanimous verdict.

Before the second trial, Soto-Zuniga requested discovery of the government's investigation of Rios and Marisol Diaz ("Diaz"), including any relevant information regarding the three teenagers who were arrested for trafficking drugs at Rios's command. The district court denied defendant's motion to compel discovery on grounds that the evidence was: (1) collateral, (2) irrelevant, and (3) predominately inadmissible in their current form. The district court further ruled that the requested discovery would extend the litigation and present a Fed. R. Civ. P. 403 problem as well. Following the end of the second trial, the jury was instructed with the same jury instructions used in the first trial and the jury returned a guilty verdict.

The Ninth Circuit panel reviewed the district court's discovery rulings for abuse of discretion. To reverse Soto-Zuniga's conviction, the panel must find that the district court abused its discretion in denying Soto-Zuniga's discovery motions and that the error resulted in prejudice to Soto-Zuniga's substantial rights (i.e., that there was "a likelihood that the verdict would have been different had the government complied with the discovery rules").

The first issue on appeal was whether the district court abused its discretion by denying defendant's motion for discovery of the San Clemente checkpoint's search and arrest statistics. The panel held that the district court abused its discretion because this information could have revealed an unconstitutional seizure and lead to the suppression of the evidence of illicit drugs that were found in appellant's car.

The panel acknowledged that, while a search or seizure is unreasonable unless it rests on individualized suspicion of wrongdoing, there is an exception for checkpoint seizures that serve "special needs beyond the normal need for law enforcement" (see City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2006), provided that the purpose of the checkpoint was actually immigration control; (see United States v. Martinez-Fuerte, 428 U.S. 543, 556-64 (1976) (holding that immigration control is a valid purpose for stopping cars and posing questions without individualized suspicion)).

Because the primary purpose of checkpoints should not be to advance the general interest in crime control, the constitutionality of the San Clemente checkpoint turns on whether its "primary purpose" is either to control immigration or to interdict drug trafficking and other "ordinary criminal wrongdoing." Edmond, 531 U.S. at 41. If the checkpoint's primary purpose is to further the general interest in crime control, the checkpoint is per se invalid under the Fourth Amendment and evidence recovered from the illegal search must be excluded as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

Accordingly, the Ninth Circuit panel held that, "[w]hether the primary purpose of the checkpoint has evolved from controlling immigration to detecting 'ordinary criminal wrongdoing,' is a question that is subject to discovery under Rule 16" and Soto-Zuniga should not have to rely solely on the government's word that further discovery is unnecessary. Therefore, defendant has a right to discover the statistics of the number and type of arrests and vehicle searches at the San Clemente checkpoint on grounds that such evidence would have provided Soto-Zuniga with the opportunity to support his declaration that the checkpoint was used as a pretext to search for controlled substances rather than to control illegal immigration.

Since the records in question were not available to the Ninth Circuit panel, it could not determine the likelihood whether Soto-Zuniga's case would have had a different outcome had discovery been permitted. Thus, the panel reversed the district court's denial of the motion to compel discovery of the San Clemente checkpoint's arrest statistics and remanded to the district court to assess the constitutionality of the San Clemente checkpoint in further proceedings.

The second issue on appeal was whether the district court abused its discretion by denying Soto-Zuniga's motion requesting discovery of the government's investigation into Rios's drug smuggling operation. The panel held that the district court abused its discretion in concluding that the documents were irrelevant, inadmissible because they relied on hearsay, and that the requested discovery would unnecessarily extend the litigation in violation of Fed. R. Evid. 403. Adopting a broad interpretation of Rule 16(a) (1) (E) that entitled Soto-Zuniga to discover documents that are "material to preparing the defense," the panel explained that "[t]he test is not whether the discovery is admissible at trial, but whether the discovery may assist Soto-Zuniga in formulating a defense, including leading to admissible evidence." The panel concluded that the district court erred by finding that the documents were not material to the defense because they were not admissible since they would either corroborate or contradict Soto-Zuniga's defense that one or more of the teenagers placed the drugs in Soto-Zuniga's car without his knowledge. The panel therefore reversed the district court's denial of Soto-Zuniga's discovery motion, vacated the conviction and remanded with instructions to grant the motion.

The third issue on appeal was whether the district court erred in denying Soto-Zuniga's motion to suppress the drug evidence on the basis that the Border Patrol Agents lacked probable cause to search the car. The panel asserted that certainty is not required to support a search or seizure, but only probable cause based on a totality of the circumstances that a search may yield evidence of a crime: "Probable cause exists if there is a fair probability that contraband or evidence of a crime will be found in a particular place based on a totality of the circumstances." The panel held that, based on Soto-Zuniga's nervousness, agitation, and at least one agent's report that Soto-Zuniga had been smoking marijuana and saw marijuana paraphernalia in the car, "the district court's account of the evidence is plausible and that the totality of the circumstances supported probable cause for the search."

The fourth issue on appeal was whether the district court erred by instructing the jury using the Ninth Circuit pattern jury instructions, which stated that "[a] reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation." Soto-Zuniga contended that this phrasing interfered with the presumption of innocence. Finding that the Ninth Circuit has repeatedly upheld the use of the Ninth Circuit model jury instruction on reasonable doubt, the panel affirmed the district court's use of the Ninth Circuit's pattern jury instructions.

The fifth and final issue on appeal was Soto-Zuniga's contention that knowledge of the drug type and quantity is an element of possession with intent to distribute in violation of 21 U.S.C § 841. Rejecting this argument, the panel, citing United States v. Jefferson, 791 F.3d 1013, 1016 (9th Cir. 2015), held that the intent element only requires that Soto-Zuniga acted knowingly or intentionally, not that the he knew exactly the quantity and type of drugs he was transporting.

The panel vacated Soto-Zuniga's conviction and remanded the case for a new trial.

To read full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/16/14-50529.pdf

Panel: Before: Alex Kozinski, William A. Fletcher, and Ronald M. Gould, Circuit Judges.

Argument Date: Argued and Submitted May 5, 2016

Date of Issued Opinion: September 16, 2016

Docket Number: 14-50529

Decided: Conviction vacated, discovery rulings reversed, and remanded with instructions.

Counsel: Paul Allen Barr (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Appellant-Appellant.

Kyle B. Martin (argued), Assistant United States Attorney; Peter Ko, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Author of Opinion: Judge Ronald M. Gould

Case Alert Author: Prianca Murthi

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/04/2016 02:55 PM     9th Circuit     Comments (0)  

November 2, 2016
  Chauca v. Abraham - Second Circuit
Headline: Second Circuit Certifies Question of Punitive Damages Standard for Discrimination Suits Under New York City Human Rights Law to Court of Appeals

Area of Law: Employment Discrimination

Issue(s) Presented: What is the standard for a punitive damages award for unlawful discriminatory acts in violation of the NYCHRL.

Brief Summary: Plaintiff-Appellant Chauca took maternity leave from her job as a physical therapy aid in 2009. Upon her scheduled return, her employer informed her that her services were no longer needed. Chauca filed a charge with the Equal Employment Opportunity Commission ("EEOC") and ultimately brought suit in the United States District Court for the Eastern District of New York alleging sex and pregnancy discrimination under federal and state law as well as under the New York City Human Rights Law (NYCHRL). She prevailed at trial with a jury award of $10,500 in lost compensation and $50,000 for pain and suffering. Chauca now appeals the denial of a jury instruction on punitive damages, arguing that the district court failed to construe the NYCHRL's standard for punitive damages "liberally." This court analyzes her question, and certifies this question to the New York Court of Appeals for more guidance.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...9c9bb380976/1/hilite/

Extended Summary: Plaintiff-Appellant Veronika Chauca began working for Defendant-Appellee Park Management Systems in 2006 as a physical therapy aid. In July 2009, she informed her supervisors that she was pregnant and would be taking maternity leave with a scheduled return in late November, which they approved. During her time away, another aide handled Chauca's duties. Shortly before her scheduled return, she contacted the office to remind them and got the runaround. She was ultimately told by the Office Supervisor, Ann Marie Garriques, that "we no longer need your services." Later, Chauca's supervisors, Dr. Jamil Abraham and Garriques, claimed that Chauca was not brought back because of a business slowdown despite evidence that most other employees maintained a steady work schedule.

In December 2009, Chauca filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging pregnancy discrimination and, after receiving an EEOC notice of right to sue, brought an action against her employer, and her supervisors individually, in the United States District Court for the Eastern District of New York alleging sex and pregnancy discrimination in violation of the federal Pregnancy Discrimination Act, part of Title VII of the Civil Rights Act of 1964, as well as under New York State and New York City Human Rights Law (NYCHRL). Chauca sought compensatory and punitive damages, the latter of which is the focus of this current dispute.

At trial, the district court declined to provide a punitive damages instruction to the jury over plaintiff's objection. While recognizing that the NYCHRL calls for a liberal construction of its provisions, the district court found that Chauca did not put forward any evidence that her employer had intentionally discriminated with "malice" or with "reckless indifference" to her protected rights. The jury returned a verdict in Chauca's favor, awarding $10,500 in lost compensation and $50,000 for pain and suffering. Chauca now appeals the denial of a jury instruction on punitive damages, arguing that the district court improperly construed the NYCHRL standard for punitive damages by requiring a showing of malice or reckless indifference as required by federal law.

Under Title VII, "[p]unitive damages are limited . . . to cases in which the employer has engaged in intentional discrimination and has done so 'with malice or with reckless indifference to the federally protected rights of an aggrieved individual.'" In a 2001 decision, the Second Circuit applied the federal standard to claims for punitive damages arising under the NYCHRL. However, in 2005, the New York City Council amended the City's Administrative Code by passing the Restoration Act which sought to clarify the "uniquely broad and remedial purposes of the NYCHRL, and expressly provides that the NYCHRL "be construed liberally, . . . regardless of whether federal or New York State civil and human rights laws, including those with provisions comparably-worded to the provisions of [the NYCHRL] have been so construed." Since then, New York courts have repeatedly determined that NYCHRL claims must be analyzed separately and independently from any federal and state law claims, but no decision has specifically addressed the proper standard for awarding punitive damages under the NYCHRL and the Restoration Act does not make any specific reference to punitive damages.

The Second Circuit concluded that the question should be certified to the New York Court of Appeals, finding that existing New York case law does not "provide definitive guidance" on the appropriate standard for a punitive damages award for unlawful discriminatory acts in violation of the NYCHRL, that this is an issue of importance to the state, and that certification was proper because the answer to the question would resolve the litigation.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...9c9bb380976/1/hilite/

Panel:
Chief Judge Katzmann, Circuit Judges Sack and Hall.

Argument Date: 09/09/2016

Date of Issued Opinion: 11/1/2016

Docket Number: No. 15-1777

Decided: Certified Appeal

Case Alert Author: Robyn Downing

Counsel: Stephen Bergstein, Bergstein & Ullrich, LLP, for Plaintiff-Appellant
Arthur H. Forman, for the Defendants-Appellees

Author of Opinion: Chief Judge Katzmann

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Professor Elyse Diamond

    Posted By: Elyse Diamond @ 11/02/2016 08:51 AM     2nd Circuit     Comments (0)  

November 1, 2016
  United States v. Diaz - Ninth Circuit
Headline: In a case of first impression, Ninth Circuit panel concludes that California's Proposition 47, which allows certain felony convictions to be reclassified as misdemeanor convictions, does not undermine a prior conviction's felony-status for purposes of 21 U.S.C. § 841.

Areas of Law: Criminal Law

Issues Presented: Whether a criminal defendant, previously convicted and sentenced in accordance with 21 U.S.C. § 841, is eligible to have his federal sentence reduced pursuant to California's Proposition 47, which permits certain state law felony convictions to be reclassified as misdemeanor convictions.

Brief Summary:
The named defendant and appellant, Jesse Vasquez ("Vasquez"), was convicted of his third drug trafficking related felony in 2009 and was sentenced in 2010 to life in prison, in accordance with sentencing guidelines of The Controlled Substance Act, 21 U.S.C. § 841, which mandates a sentence of life imprisonment because of Vasquez's "prior [California] convictions for a felony drug offense."

In 2014, California voters passed and enacted Proposition 47, "The Safe Neighborhoods and Schools Act," codified at Cal. Penal Code § 1170.18. Among other things, Proposition 47 reduced future convictions under Cal. Health & Safety Code § 11350(a) from a felony to a misdemeanor. Additionally, Proposition 47 permitted previously convicted felons the opportunity to petition the court for a "recall of sentence," which, if granted, would reclassify existing felony convictions as misdemeanor convictions. In 2015 Vasquez petitioned the court and was granted a reclassification of a 1996 felony conviction under § 11350(a) to a misdemeanor conviction.

Upon reclassification, Vasquez filed this appeal to challenge his sentence of life in prison, arguing that he is no longer convicted of three drug related felonies because his 1996 conviction no longer counts for purposes of § 841. The Ninth Circuit panel disagreed and affirmed his original sentence of life in prison on grounds that reclassification of a felony conviction to a misdemeanor conviction pursuant to Proposition 47 did not change or affect prior sentencing enhancements mandated by § 841.

Significance: The Ninth Circuit panel concluded that California's Proposition 47 does not apply retroactively to undermine a prior conviction's felony status for purposes of sentencing enhancements under 21 U.S.C. § 841.

Extended Summary:
Jesse Vasquez ("Vasquez") was a mid-level leader in the Florencia Trece gang who was convicted of drug-related crimes for his part in the gang's drug trafficking operations. In 2009, the district court sentenced Vasquez to life imprisonment due to Vasquez's two prior California felony convictions, one of which was under Cal. Health & Safety Code § 11350(a). Due to Vasquez's two prior California felony convictions, Vasquez qualified for a mandatory sentence enhancement pursuant to 21 U.S.C. § 841.

Section 841 imposes a mandatory life sentence if a defendant "commits [a violation of § 841] after two or more prior convictions for a felony drug offense have become final. 21 U.S.C. § 841(b)(1)(A). A "felony drug offense" is "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country." 21 U.S.C. § 802(44).

Four years after Vasquez received his life sentence, California passed and enacted Proposition 47, The Safe Neighborhoods and Schools Act, codified at Cal. Penal Code § 1170.18, which, inter alia, reduced future convictions under § 11350(a) from a felony to a misdemeanor. The statute allows certain felony convictions to be reclassified as misdemeanor convictions and Cal. Penal Code § 1170.18(b) provides that "[a]ny felony conviction that is recalled and resentenced . . . or designated as a misdemeanor . . . shall be considered a misdemeanor for all purposes." Cal. Penal Code § 1170.18(n) also provides that "[n]othing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act."

Upon the enactment of § 1170.18, Vasquez petitioned for and was granted the reclassification of his 1996 conviction under § 11350(a) from a felony conviction to a misdemeanor conviction. Upon receiving this reclassification, Vasquez appealed his 2010 sentence of life imprisonment arguing that because he successfully petitioned in 2014 to have his 1996 conviction re-designated as a misdemeanor, that conviction no longer counts as a prior felony conviction for purposes of § 841..

The Ninth Circuit panel disagreed with Vasquez and held that § 1170.18 did not alter the prior felony conviction status as it pertains to § 841. The panel noted that federal law, not state law, controlled the interpretation of federal law (see United States v. Norbury, 492 F.3d 1012, 1014 (9th Cir. 2007) and that "[a]lthough the [state's] statute [can] determine the status of the conviction for purposes of state law, it [can]not rewrite history for the purposes of the administration of the federal criminal law or the interpretation of federal criminal statutes." United States v. Bergeman, 592 F.2d 533, 536 (9th Cir. 1979); United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir. 1997) (quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988). Following this precedent, the Ninth Circuit panel held that federal law, not California law, determines the effect of California's reclassification of Vasquez's federal sentence enhancement pursuant to § 841.

The panel relied primarily on the Supreme Court's ruling in McNeill v. United States, 563 U.S. 816 (2011). In McNeill, the defendant had been convicted in the early 1990's of violating North Carolina drug laws, for which the maximum sentence was at least ten years. In 1994, North Carolina reduced the maximum sentence such that the North Carolina convictions no longer qualified for the sentencing enhancement prescribed under 18 U.S.C. §§ 924(e)(1) and 924(e)(2)(A)(ii). McNeil, 563 U.S. at 818. McNeill argued that because North Carolina had changed its laws, his prior conviction did not qualify as a "serious drug offense," but the Court disagreed and held that North Carolina's changes to McNeill's state conviction had no effect on his federal sentence. Id. at 819. The Court explained that the Armed Career Criminal Act asked a "backward-looking question" and that the "only way to answer [this question] is to consult the law that applied at the time of that conviction" because this "avoids the absurd results that would follow from consulting current state law to define a previous offense." Id. at 819-20.

The Ninth Circuit panel acknowledged that the issue of whether a state that permits reclassifying particular felony convictions as misdemeanors requires a federal court to revisit a federal sentence enhancement imposed under § 841 was a matter of first impression. However, the panel analogized Vasquez's appeal to cases that addressed whether dismissing or expunging a predicate state conviction invalidates a federal enhancement under § 841. Norbury, 492 F.3d 1012, 1015 (holding that a state's later dismissal or expungement of a predicate state conviction had no bearing on whether § 841's requirements were met). Accordingly, the Ninth Circuit panel reasoned that other than the circumstance "where the dismissal or expungement alters the legality of the original state conviction - such as where there was a trial error or it appears the defendant was actually innocent of the underlying crime," a federal enhancement "does not depend upon the mechanics of state post-conviction procedures, but rather involves the [state] conviction's underlying lawfulness."

The panel determined that, like the provision at issue in McNeill, § 841 is also a "backward-looking," inquiry which only requires that the defendant have committed his federal crime "after two or more prior convictions for a felony drug offense have become final." § 841(b)(1)(A). Thus, it is immaterial whether a state makes a change to a state conviction after it has become final because it "does not alter the historical fact of the [prior state] conviction" becoming final, which is what § 841 requires. United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013), cert. denied, 134 S.Ct. 365 (2013).

In Vasquez's case, there was no doubt that Vasquez committed a federal drug offense after having been convicted of two prior drug felonies and that those prior convictions had become final. These convictions were felony convictions at the time of his final sentence-enhancement qualifying conviction and thus any change to the state law after the fact has no bearing on the felony-status for purposes of § 841.

The Ninth Circuit panel therefore held that (1) § 1170.18 did not undermine a prior conviction's felony-status for purposes of § 841 and (2) California's later actions cannot change the fact that Vasquez committed his federal offense after 'two or more convictions for a felony drug offense [had] become final" and affirmed the district court.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/21/10-50029.pdf

Panel: Jerome Farris, Jay S. Bybee, and N. Randy Smith, Circuit Judges.

Argument Date: November 2, 2015

Date of Issued Opinion: September 21, 2016

Docket Number: 10-50029; 10-50052; 10-50058; 10-50059; 10-50062; 10-50064; 10-50072; 10-50076; 10-50113; 10-50115

Decided: Affirmed the district court's sentencing of Jesse Vasquez, asserting that (1) § 1170.18 did not undermine a prior conviction's felony-status for purposes of § 841 and (2) California's later actions cannot change the fact that Vasquez committed his federal offense after 'two or more convictions for a felony drug offense [had] become final.".

Case Alert Author: Ryan Schley

Counsel:
Karen Landau (argued), Oakland, California, for Defendant-Appellant Manuel Hernandez.

Ethan Balogh (argued) and Jay Nelson, Coleman, Balogh & Scott LLP, San Francisco, California, for Defendant-Appellant Jesse Vasquez.

Kenneth Reed, Santa Ana, California, for Defendant-Appellant Gilbert Oliva Diaz.

Verna Wefald, Pasadena, California, for Defendant-Appellant Arturo Cruz.

Wayne Young, Santa Monica, California, for Defendant-Appellant Alberto Hernandez.

David Phillips, Riverside, California, for Defendant-Appellant Noe Gonzalez.

Holly Sullivan, San Diego, California, for Defendant-Appellant Francisco Flores.

Michael Khouri, Khouri Law Firm, Irvine, California, for Defendant-Appellant Luis A. Aguilar.

Robinson Harley, Santa Ana, California, for Defendant-Appellant Cesar Dela Cruz.

Elana Shavit Artson (argued), Allison Westfahl Kong, and Robert Dugdale, Assistant United States Attorneys; Stephanie Yonekura, Acting United States Attorney; United States Attorney's Office, Los Angeles, California, For Plaintiff-Appellee.

Donald M. Falk, Mayer Brown LLP, Palo Alto, California; Travis Crum, Mayer Brown LLP, Washington, D.C.; Michael Romano, Stanford Law School Justice Advocacy Project, Stanford, California; David M. Porter, Co-Chair, NACDL Amicus Curiae Committee, Sacramento, California; for Amici Curie National Association of Criminal Defense Lawyers and Stanford Law School Justice Advocacy Project.

Author of Opinion: Judge Jay S. Bybee

Circuit: Ninth Circuit panel

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2016 05:29 PM     9th Circuit     Comments (0)  

  A.K.H. v. City of Tustin - Ninth Circuit
Headline: The Ninth Circuit panel affirmed the district court's denial of qualified immunity to a Tustin police officer in an action brought under 42 U.S.C. § 1983 alleging that the officer used excessive force when he shot and killed an unarmed man suspected of a domestic violence dispute during an investigatory stop.

Area of Law: Constitutional Law; 42 U.S.C. § 1983

Issue Presented: Whether a Tustin Police officer is entitled to summary judgment based on qualified immunity pursuant to 42 U.S.C. § 1983 applying the Graham factors when he shot and killed an unarmed man during an investigatory stop.

Brief Summary: After a theft and domestic violence report from Benny Herrera's ("Herrera") ex-girlfriend Hilda Ramirez ("Ramirez"), police were dispatched to where Herrera was walking to take a bus to his home. Dispatch initially informed the officers that Herrera was not known to carry weapons, but that Herrera was "shown in house" to be a member of the Southside Gang, that Herrera was on parole for a state drug possession crime, and Herrera possibly had a $35,000 traffic warrant out for his arrest.

Officer Miali ("Miali") was the first to spot Herrera. As Miali drove up to Herrera, Miali turned on the red lights of his vehicle. Herrera then put his right hand in his sweatshirt pocket and refused three orders from Miali to "get down," opting to stay on his feet and continue to move down the road at about the same speed as Miali's vehicle. Officer Villarreal ("Villarreal") was second at the scene and did not hear Miali's commands. Villarreal positioned his car so as to "box" Herrera in and immediately shouted, "[g]et your hand out of your pocket." Within less than a second of ordering Herrera to take his hand out of his pocket and without warning, Villarreal fired two shots in rapid succession killing Herrera as Herrera moved to comply with Villarreal's command.

Herrera's relatives filed suit against Villarreal and the City of Tustin under 42 U.S.C. § 1983 claiming that excessive force was used in the incident. Claiming qualified immunity, Villarreal moved for summary judgment, which the district court denied. Villarreal took an interlocutory appeal of the denial of his summary judgment motion.

The Ninth Circuit panel used the two-prong analysis from Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010), which asks: (1) viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment and (2) if Villarreal used excessive force, did he violate a clearly established right. As to the first prong, the Ninth Circuit panel held that, based on the totality of the circumstances and viewing the evidence in the light most favorable to the plaintiffs, Herrera's interests substantially outweighed the government's interest in using deadly force. Thus, Villarreal's fatal shooting of Herrera violated Herrera's Fourth Amendment rights. As to the second prong, the Ninth Circuit panel held that, viewing the evidence in the light most favorable to the plaintiffs, Villarreal violated clearly established Fourth Amendment law when he killed Herrera because Villarreal had no articulable basis to believe that Herrera was armed, except to say that Herrera had one hand "concealed."

The Ninth Circuit panel therefore affirmed the district court's denial of summary judgment in Villarreal's favor based on qualified immunity and remanded to the district court.

Significance: A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.

Extended Summary:
Benny Herrera's ("Herrera") ex-girlfriend Hilda Ramirez ("Ramirez") called 911 and reported that Herrera had stolen her phone. Ramirez told police that Herrera did not carry any weapons and that it was his first time using violence against her. Ramierz also informed dispatch that Herrera had left the scene and was "walking down El Camino Real...towards Red Hill" likely trying to take a bus home as he had neither a car nor friends in the area. Ramirez later modified her story to include that Herrera hit her in the head while Ramierz and Herrera were arguing about Ramirez's phone.

The dispatcher's general call to Tustin Police reported that Herrera stole Ramirez's phone, left the scene, was trying to catch the bus, had no access to a vehicle, did not have friends in the area, and was not known to carry weapons. After Ramirez modified her story to the dispatcher, the dispatcher reported that Ramirez claimed that Herrera had struck Ramirez's head. The dispatcher also reported that Herrera was "shown in-house to be a member of the Southside Gang," was on parole for a state drug possession crime, and possibly had a $35,000 traffic warrant out for his arrest.

Officer Miali ("Miali") encountered Herrera first. As Miali turned on the red lights of his police vehicle, Herrera put his right hand in his shirt pocket and began to skip, walk, and run backwards facing the Miali. Miali told Herrera to "get down" three times, but Herrera did not comply.

Officer Villarreal ("Villarreal") was second on the scene and did not hear Miali's commands to Herrera. Using his patrol car, Villarreal "boxed in" Herrera and told Herrera to, "[g]et your hand out of your pocket." While Herrera was taking his hand out of his pocket, Villarreal fired two shots in quick succession without warning, killing Herrera.

At a deposition, Miali testified, "there was something in [Herrera's sweatshirt] that appeared to be heavy." Villarreal testified in his deposition that Herrera "charged [him]" and that probably "three to five seconds" passed between the time Villarreal commanded Herrera to remove his hands from his pocket and when he shot. However, Miali's dashboard camera showed Villarreal's command and his shots were almost simultaneous and that the entire encounter from the time that Miali initially made contact with Herrera to when Villarreal killed Herrera was less than one minute.

Herrera's relatives filed a claim under 42 U.S.C. § 1983 alleging that Villarreal used excessive force against Herrera when Villarreal shot Herrera two times, killing him during an attempted investigatory stop. Villarreal moved for summary judgment on grounds of qualified immunity which was denied. Villarreal filed an interlocutory appeal.

On the preliminary issue of whether the interlocutory appeal was proper, the Ninth Circuit panel noted that while summary judgment motions are not normally appealable as they are not final judgments, there is an exception for appeals based on a denial of a motion for summary judgment based on qualified immunity (Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). The Ninth Circuit panel held that Villarreal had properly brought an interlocutory appeal over which the Ninth Circuit panel had jurisdiction because "[a] defendant who appeals a denial of qualified immunity on the ground that his 'conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law" has "raise[d] legal issues" that may be properly heard in an interlocutory appeal. Plumhoff, 134 S.Ct. at 2019.

Moving to the merits of the appeal, the Ninth Circuit panel used a two-pronged approach to determine whether Villarreal was entitled to summary judgment based on qualified immunity under § 1983. "First, viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment?" Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). "Second, if Villarreal used excessive force, did he violate a clearly established right?" Id.

Excessive Use of Force

In analyzing excessive force claims under the Fourth Amendment, the question is whether the actions of the officers were "objectively reasonable." Graham v. Connor, 490 U.S. 386, 388 (1989). The nature and quality of the intrusion of individual's Fourth Amendment right is balanced against the interest the government alleges justifies the intrusion. Tennessee v. Garner, 471 U.S. 1, 7 (1985). Courts must evaluate the "totality of the circumstances" (Id. at 8), paying close attention to factors such as "the severity of the crime at issue, whether the suspect poses 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" (Graham, 490 U.S. at 396). The "most important" of these factors is "whether the suspect posed an 'immediate threat to the safety of the officers or others.'" Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (quoting Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)). Moreover, deadly force is permissible only "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm" Garner, 471 U.S. at 11.

The Ninth Circuit panel noted that under Garner, the "nature and quality of the intrusion" by Villarreal on Herrera's Fourth Amendment interests was extreme because the use of deadly force implicates the highest level of Fourth Amendment interests. As such, the panel held that the government's interests were insufficient to justify the use of deadly force because: (1) the "crime at issue" was a domestic dispute that ended before police became involved; (2) domestic disputes do not necessarily justify the use of even intermediate let alone deadly; and (3) the use of force is especially difficult to justify when "the domestic dispute is seemingly over by the time the officers begin their investigation.

The Ninth Circuit panel further held that Villarreal could not have reasonably believed Herrera was a threat to the safety of officers or others because: (1) the domestic altercation was over; (2) Herrera posed no threat to the safety of the officers as he had no weapon; (3) officers had little, if any, reason to believe that Herrera was armed; (4) the dispatcher told the officers that Herrera was "not known to carry weapons;" (5) Herrera never displayed a weapon and Villarreal admitted that he never saw a weapon; and (6) the traffic warrant and drug possession conviction were relatively minor crimes, neither of which entailed violence or gun possession.
The panel thereafter held that, even it was accepted that (1) Herrera was "actively resisting" or "attempting to evade" an investigatory stop and (2) an arrest and an investigatory stop were equal, this factor only slightly favored the government because Herrera never attempted to flee from the officers. Moreover, Villarreal did not hear Miali's commands for Herrera to "get down." Therefore, when viewing the evidence in the light most favorable to Herrera, this factor did not weigh heavily in the government's favor to determine whether the use of deadly force was justified.

Finally, the Ninth Circuit panel noted that Villarreal had escalated to deadly force very quickly. Less than one second elapsed from Villarreal's command for Herrera to remove his hand from his pocket and the shots fired. There was no warning and insufficient time for Villarreal to make a determination whether Herrera had a weapon. Moreover, Villarreal conceded that he never saw a weapon in Herrera's hand, Herrera never threatened the officers, and Villarreal had other reasonable options. As such, and based on the totality of the circumstances and the balancing of both sides, the panel concluded that the intrusion on Herrera's interests substantially outweighed any governmental interest in using deadly force and held that Villarreal's fatal shooting of Herrera violated Herrera's Fourth Amendment rights.

Clearly Established Right

After holding that Villarreal's actions violated the Fourth Amendment, the Ninth Circuit panel considered whether Villarreal violated a right that was clearly established at the time of the violation. Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 532 (9th Cir. 2010). To determine whether such a right was violated, the panel looked to "cases relevant to the situation [Villareal] confronted" (see Brosseau v. Haugen, 543 U.S. 194, 200 (2004)), mindful that there need not be a case "directly on point" (see Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013).

The panel found the Court's decision in Garner to be instructive because, as in Herrera's case: (1) the crime at issue did not involve the use of deadly force; (2) Garner fled from police after an officer told him to "halt"; and (3) the officer in Garner had no reason to suspect that the suspect was armed.

Viewing the evidence in the light most favorable to the non-moving party, the panel held that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera because Villarreal had no reason to suspect that Herrera was armed since: (1) the dispatcher expressly told the officers that Herrera was "not known to carry weapons;" (2) Villarreal never saw a gun; and (3) Villarreal could provide no basis for his belief that Herrera was armed except to say that Herrera had one hand "concealed."

Viewing the evidence in the light most favorable to the plaintiffs, the panel held that Villarreal clearly violated clearly established Fourth Amendment law when he"seize[d] an unarmed, nondangerous suspect by shooting him dead" and affirmed the district court's denial of qualified immunity.

To read full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/16/14-55184.pdf

Panel: William A. Fletcher, Mary H. Murguia, and John B. Owens, Circuit Judges.

Argument Date: Argued and Submitted March, 7, 2016

Date of Issued Opinion: September 16, 2016

Docket Number: 14-55184

Decided: Affirmed and Remanded.

Counsel: M. Lois Bobak (argued), Robert L Kaufman, and Daniel K. Spradlin, Woodruff Spradlin & Smart, APC, Costa Mesa, California, for Defendant-Appellant Officer Villarreal.

No appearance by Defendant-Appellant City of Tustin.

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiffs-Appellees.

Author of Opinion: Judge W. Fletcher, Circuit Judge.

Case Alert Author: Krysta Maigue

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2016 04:42 PM     9th Circuit     Comments (0)  

  United States v. Carey - Ninth Circuit
Headline: Ninth Circuit panel expands the "plain view" doctrine and adopts the "plain hearing" doctrine, whereby police may use evidence of conversations of speakers unrelated to a target conspiracy overheard during execution of a valid wiretap for the target conspiracy only until such time that the police know or should reasonably know that the speakers are unrelated to the target conspiracy.

Area of Law: Criminal Procedure; Fourth Amendment, Exceptions to the Warrant or Probable Cause Requirements

Issue Presented: Whether the government may lawfully use evidence obtained from conversations overheard during the execution of a wiretap order for a phone number used in a drug conspiracy where the overheard conversations are those by persons unrelated to the drug conspiracy using the authorized phone number.

Brief Summary: The Appellant-Defendant, Michael Carey ("Carey"), was charged with conspiracy to distribute cocaine after federal officers overheard Carey in conversations during the execution of a wiretap order for an unrelated drug target conspiracy. The district court denied Carey's motion to suppress evidence and Carey appealed. The Ninth Circuit panel expanded the "plain view" doctrine and adopted the "plain hearing" doctrine, holding that: (1) the government may use evidence obtained from a valid wiretap "[p]rior to the officers' discovery of [a] factual mistake" that causes or should cause them to realize that they are listening to phone calls "erroneously within the terms of the "wiretap order and (2) once the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible.

Significance: The Ninth Circuit panel, addressing an issue of first impression in this Circuit - whether the Wiretap Act can be used to authorize the government to listen to people who were unaffiliated with the initial wiretap subjects - expanded the "plain view" doctrine and adopted the "plain hearing" doctrine as an exception to the Fourth Amendment. The "plain hearing" doctrine allows the government to use evidence obtained from listening to conversations of speakers who are unrelated to the target of a valid wiretap, with the limitation that the government must discontinue listening once it knows or should know the conversations are unrelated to the target of the wiretap.

Extended Summary: FBI Special Agent Christopher Meltzer ("Meltzer") obtained a wiretap order for a phone number, T-14, based on evidence that the target of a drug conspiracy, Ignacio Escamilla Estrada ("Escamilla"), used T-14 to conduct the conspiracy. Several days into the execution of the wiretap order, agents overheard "drug-related" calls. At some point thereafter, the agents realized that the person using T-14 was not Escamilla, but did not know who the people speaking on T-14 were. Melzer initially believed that the callers and calls may still be affiliated with the known targets or part of the criminal activity that he was monitoring. Melzer consulted with federal prosecutors and agents continued to monitor the calls.

Agents subsequently intercepted a call indicating that someone would be traveling with "invoices" (believed to be code for drug money), and the agents coordinated with local police officers to conduct a traffic stop. During the traffic, officers searched the vehicle, finding cash and a cell phone tied to the T-14 number and identified the driver as Adrian Madrid ("Madrid"). Officers later obtained a search warrant for a related residence and found cocaine.

After identifying Madrid, Melzer learned that there was an ongoing DEA/ICE investigation into Madrid and his associates. After Meltzer met with ICE and DEA agents, they learned that there was no "overlap" between the Madrid and Escamilla conspiracies. Agents thereafter identified defendant-appellant, Michael Carey ("Carey") as a member of Madrid's conspiracy and Carey was indicted in February 2011 for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Carey filed a motion to suppress "any and all evidence derived from the use of wiretaps" on grounds that the government failed to comply with the Wiretap Act, 18 U.S.C. §§ 2510-22, with respect to Carey and his coconspirators. The district court denied the motion on grounds that (1) the government had complied with the statute to obtain the wiretap order against Escamilla and (2) "[t]here was no requirement for a separate showing of necessity once the agents concluded that T-14 was not primarily used by Escamilla" because "the agents reasonably believed that the callers might be affiliated with Escamilla or other offenses." Carey then pled guilty in an agreement with Carey that preserved Carey's right to appeal the denial of his motion to suppress.

On appeal, Carey raised the issue whether government agents could lawfully use the Escamilla wiretap to listen to Carey's conversations. The Ninth Circuit panel noted that there was a lack of Ninth Circuit precedent squarely on point in a situation where 18 U.S.C. § 2517(5) was used to authorize law enforcement to listen to people who were unaffiliated with the original wiretap subjects. The Ninth Circuit panel also noted that while the government showed necessity and probable cause for a wiretap of the Escamilla conspiracy, the novel question raised in Carey's appeal was "what happens when a wiretap that is valid at its inception is later used to listen to someone who is not involved in the conspiracy under surveillance?"

Looking to dicta from the Seventh Circuit, the Ninth Circuit panel found United States v. Ramirez, 112 F.3d 849 (7th Cir. 1997) to be persuasive. In Ramirez, the Seventh Circuit explained in dicta that, "t is true that if government agents execute a valid wiretap order and in the course of executing it discover that it was procured by a mistake and at the same time overhear incriminating conversations, the record of the conversations is admissible in evidence. It is just the 'plain view' doctrine translated from the visual to the oral dimension." Id. at 851. But, "once the mistake is discovered, the government cannot use the authority of the warrant, or of the [wiretap] order, to conduct a search or interception that they know is unsupported by probable cause or is otherwise outside the scope of the statute or the Constitution." Id. at 852 (citing Maryland v. Garrison, 480 U.S. 79, 87-88 (1987) (holding that the search "[p]rior to the officers' discovery of the factual mistake" did not violate the Fourth Amendment so long as the officers' failure to realize the mistake "was objectively understandable and reasonable")).

On the one hand, Carey argued that Garrison "has limited application to wiretaps" because of the Wiretap Act's procedural requirements; however, the Ninth Circuit panel found Carey's argument to be unavailing because (1) the government complied with the Wiretap Act to obtain a valid wiretap on T-14 and (2) the issue on appeal was whether the government could use the valid wiretap of T-14 to listen to unrelated people's phone calls, which was a concern that mirrored the question in Garrison of whether officers could rely on a valid warrant for entry into an unrelated person's apartment.

On the other hand, the government argued that (1) the agents could continue listening to the conversations after the agents realized the speakers were not involved in the target conspiracy because the wiretap order authorized agents to listen to conversations of "others yet unknown" and (2) under 18 U.S.C. § 2517(5), the federal officers could continue listening to the conversations because the Wiretap Act authorized listening for evidence of other crimes.

As to the government's first argument, the Ninth Circuit panel concluded that (1) the wiretap order, when read in context, did not extend to unknown people not involved in the Escamilla Conspiracy and, therefore, did not authorize the wiretap of "others yet unknown" participating in a conspiracy "yet unknown"; and (2) the wiretap order could not authorize surveillance of a yet unknown conspiracy because the statute expressly requires agents to demonstrate probable cause and necessity to procure a wiretap order (see 18 U.S.C. § 2518(b)-(c)). Essentially, the Ninth Circuit panel interpreted "others yet unknown" as referring to others yet unknown who are participating in the target conspiracy and held that Melzer's affidavit contained no information about unknown people engaged in drug trafficking outside the Escamilla conspiracy.

As for the government's second argument, the Ninth Circuit panel reasoned that § 2517(5) only allows the government to use "communications relating to offenses other than those specified in the authorization or approval" when officers are "engaged in intercepting wire, oral, or electronic communications in the manner authorized [by the statute]." As such, the Ninth Circuit panel reasoned that the wiretap order did not authorize agents to listen to conversations outside the Escamilla conspiracy and § 2517(5) did not aid the government.

The panel therefore held that (1) "[t]he government may use evidence obtained from a valid wiretap '[p]rior to the officers' discovery of [a] factual mistake' that causes or should cause them to realize that they are listening to phone calls 'erroneously included within the terms of the' wiretap order (Garrison, 480 U.S. at 87-88) and (2) "once the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible (id. at 87).

Applying this two-pronged rule to Carey's case, the panel noted that the government could only use evidence obtained in accordance with the "plain hearing" doctrine. On the record presented, the panel was unable to discern: (1) what evidence was obtained before the agents knew or should have known that they were listening to calls outside the Escamilla conspiracy; (2) the identities of the persons who called T-14; and (3) how much of the government's wiretap evidence may be outside of the "plain hearing" doctrine. The panel also found that the record lacked the factual findings necessary to determine what evidence was admissible against Carey. As such, the Ninth Circuit panel vacated the district court's order denying Carey's motion to suppress and remanded on an open record to determine what evidence is admissible against Carey under the "plain hearing" doctrine's framework.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/07/14-50222.pdf

Panel: Alex Kozinski, William A. Fletcher, and Ronald M. Gould, Circuit Judges

Argument Date: May 6, 2016

Date of Issued Opinion: September 7, 2016

Docket Number: 14-50222

Decided: District Court ruling vacated and case remanded to determine what evidence was admissible under the "plain hearing" doctrine.

Case Alert Author: Camille Hooper

Counsel: Knut Sveinbjorn Johnson (argued) and Emerson Wheat, San Diego, California, for Defendant-Appellant.

Peter Ko (argued), Assistant United States Attorney, Chief Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Author of Opinion: Ronald M. Gould, Circuit Judge

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2016 04:39 PM     9th Circuit     Comments (0)  

  NewGen, LLC v. Safe Cig, LLC
Headline: After plaintiff's complaint failed to properly allege the citizenship of the defendant LLC to invoke diversity jurisdiction and a $1.5 million default judgment entered, the district court properly granted plaintiff leave to amend its complaint to correct the defective jurisdictional allegation and denied defendant's 60(b) motion to set aside the default judgment.

Areas of Law: Federal Civil Procedure: Diversity Jurisdiction

Issues Presented: (1) Whether the district court erred in permitting the plaintiff to amend its original complaint to cure the defective allegations of diversity jurisdiction under 28 U.S.C. § 1653, without reopening the default judgment. (2) Whether Safe Cig challenged the factual basis for diversity jurisdiction, triggering an obligation on the part of NewGen to offer supplemental evidence proving jurisdiction. (3) Whether the district court abused its discretion in the denial of relief from the default judgment.

Brief Summary: The Ninth Circuit panel affirmed the district court's grant of an approximately $1.5 million default judgment against Safe Cig, LLC ("Safe Cig") and in favor of NewGen, LLC ("NewGen") after accepting NewGen's amended allegations of diversity citizenship as true.

The Ninth Circuit panel held that the district court properly allowed NewGen to amend its original complaint pursuant to 28 U.S.C. § 1653 to properly allege diversity jurisdiction under 28 U.S.C. § 1332 after entry of the default judgment, finding that the operative statute, § 1653, applies to both judgments on the merits and default judgments.

Next, the Ninth Circuit panel held that the district court had subject matter jurisdiction, reasoning that Safe Cig's initial appeal and its Fed. R. Civ. P. 60(b) motion raised only facial, not factual, challenges to the district court's subject matter jurisdiction. Because a facial attack that challenges the legal sufficiency of the jurisdictional allegations warrants only leave to amend the allegations of diversity jurisdiction, not wholesale revival of a defaulted defense and an obligation to supplement the record, the panel held that "the amended allegations - which were undoubtedly legally sufficient - resolved the only question ever raised regarding the district court's subject matter jurisdiction."

Finally, after weighing the factors set forth in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986), the panel that the district court's decision to enter default judgment was not an abuse of discretion.

Significance: Ninth Circuit panel holds that 28 U.S.C. § 1653 allows a plaintiff to amend its original complaint to cure defective allegations of diversity jurisdiction after default judgment has been entered where the defendant's 60(b) motion and appeal raises only facial challenges to the court's subject matter jurisdiction. Defendant's assertion that it is "without knowledge or information sufficient to form a belief" as to the domiciles of its members does not controvert the complaint's jurisdictional allegations and, therefore, does not impose a burden on the plaintiff to come forward with evidence to prove subject matter jurisdiction.

Extended Summary: NewGen, LLC ("NewGen"), a Wisconsin limited liability company, is an online marketing agency that contracted with the Safe Cig, LLC ("Safe Cig"), a California limited liability company, to promote the sale of Safe Cig's electronic cigarettes. The terms of the relationship were set out in two separate agreements - an Affiliate Agreement and a Consulting Agreement - under which NewGen agreed to attract online customers to Safe Cig's website.

NewGen alleged that Safe Cig breached both agreements by failing to: (1) pay NewGen its lifetime 20% commission on all sales resulting from NewGen's referrals, (2) grant NewGen access to its sales records to verify those commissions, (3) pay NewGen in exchange for not launching a competitor, and (4) pay NewGen for general marketing and business consultant services.

Three days after NewGen filed this complaint, NewGen properly served Safe Cig with process by serving Safe Cig's registered agent, notwithstanding resistance on the agent's part. Safe Cig thereafter failed to respond to the complaint on ground that service of process had been effective.

NewGen filed an application for default judgment, which the district court entered.
On the same day that the default judgment was entered, Safe Cig contacted NewGen and offered a deal: it would not contest service in exchange for a 60-day extension to respond to the complaint. NewGen rejected Safe Cig's offer, and the default judgment was entered. The district court found that service was effective and that it had diversity jurisdiction.

In response to the default judgment, Safe Cig launched a two-pronged attack: (1) Safe Cig appealed to the Ninth Circuit, claiming relief from judgment because the entry of default was an abuse of discretion under Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986) and (2) Safe Cig filed in the district court a Rule 60(b) motion for relief from the judgment, requesting the district court to declare the default judgment void for lack of subject matter jurisdiction.

Both parties and the district court agreed that the original complaint failed to properly plead diversity jurisdiction. Instead of alleging the citizenship of the members of the limited liability companies, the complaint improperly alleged that NewGen was a Wisconsin limited liability company with its principal place of business in Wisconsin, and that Safe Cig was California limited liability company with its principal place of business in California The district court granted NewGen leave to amend the complaint to cure the defective allegations because: (1) the record established that "none of the members of Safe Cig were domiciliaries of Wisconsin when the case was filed, "and thus, "ecause NewGen and Safe Cig were not citizens of the same state when the case was filed, the [district court] had jurisdiction over the matter;" (2) NewGen did not have affirmative duty to prove diversity with affidavits because Safe Cig had not denied NewGen's factual allegations of diversity; and (3) NewGen "could have met [Safe Cig's] facial challenge simply by amending the jurisdictional allegations of the complaint." Thus, the district court denied the Rule 60(b) motion on condition that NewGen amend its complaint to cure the original, "defective" allegations of jurisdiction pursuant to 28 U.S.C. § 1653.

NewGen thereafter filed its amended complaint properly alleging diverse citizenship. Safe Cig filed an answer challenging the allegations based on Safe Cig's purported lack of knowledge and information about the citizenship of its members. Because the district court found that Safe Cig had not challenged the veracity of NewGen's allegations of citizenship, it likewise found that the answer did not upset "the Court's previous finding that the judgment in this case was not void for want of subject matter jurisdiction."
The Ninth Circuit panel first held that the district court acted within its statutory authority under 28 U.S.C.§ 1653 to permit NewGen to amend its complaint to correct its jurisdictional allegations, interpreting the text of section 1653 to be a "liberal amendment rule" that "permits a party who has not proved, or even alleged, that diversity exists to amend his pleadings even as late as on appeal." Furthermore, the panel interpreted the intent of section 1653 to avoid the needless expenditure of judicial resources where a court can instead "permit the action to be maintained if it is at all possible to determine from the record that jurisdiction does in fact exist."

The panel rejected Safe Cig's assertion that section 1653 applies only to judgments on the merits and not default judgments, finding nothing in the text of section 1653 to not justify exempting default judgments from § 1653.

The panel next considered whether Safe Cig successfully challenged the factual basis of NewGen's complaint alleging diversity jurisdiction thereby triggering an obligation on the part of NewGen to offer supplemental evidence proving jurisdiction. Noting that a "Rule 60(b) motion may encompass a claim that the district court acted in excess of its jurisdiction," the panel reasoned that only upon a factual attack does a plaintiff have an affirmative obligation to support jurisdictional allegations with proof. Letite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2004). Conversely, a facial attack is easily remedied by leave to amend jurisdictional allegations pursuant to § 1653.

The panel rejected Safe Cig's argument that its lack of knowledge about the citizenship of its own members raised a jurisdictional challenge that shifted the burden to Safe Cig to come forward with evidence that jurisdiction was wanting, finding that: (1) at no point did Safe Cig assert that any of its members were citizens of Wisconsin, or argue that NewGen's sole member was not a citizen of Wisconsin; (2) Safe Cig never challenged or questioned any of the factual predicates to diversity jurisdiction: and (3) most importantly, Safe Cig never asked for discovery to clarify the issue.

Accordingly, the panel held that, "because the only real challenge to jurisdiction concerned the sufficiency of the pleadings, the amended allegations - which were undoubtedly legally sufficient - resolved the only question ever raised regarding the district court's subject matter jurisdiction." Satisfied that the district court had subject matter jurisdiction and that the amended complaint corrected any defect in the pleadings, the panel then reviewed whether the district court abused its discretion in denying the defendants request for relief from the default judgment.

Finally, the panel rejected the Safe Cig's contention that the district court abused its discretion in denying Safe Cig's motion to vacate the default judgment. The panel considered the following factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471-72.

In weighing the Eitel factors, the Ninth Circuit panel found that numerous factors weighed in favor of entry of default judgment, such as: (1) Safe Cig's blatant attempt to resist service, despite being properly served; (2) Safe Cig's failure respond to the complaint; (3) Safe Cig's failure to give any "credible, good faith explanation" for its apparent bad faith "intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process; (4) Safe Cig's failure to "present specific facts that would constitute a defense" or that would substantially alter the liability at stake; and (5) the fact that Safe Cig's counsel waited until default was entered to finally contact NewGen's attorneys..

Observing that that it was not the appellate court's role to second-guess the district court's weighing of the Eitel factors, the panel held that the district court's decision to enter default judgment was not an abuse of discretion.

To read the full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/07/13-56157.pdf

Panel: M. Margaret McKeown and Sandra S. Ikuta, Circuit Judges, and Robert W. Pratt, District Judge.

Argument Date: February 11, 2016

Date of Issued Opinion: September 7, 2016

Docket Number: 13-56157; 14-57015; 13-56225

Decided: Affirmed the district court's grant of default judgment against Safe Cig, LLC and in favor of NewGen, LLC, holding that the district court had subject matter jurisdiction to enter the judgment because both Safe Cig's initial appeal and its Fed. R. Civ. P. 60(b) motion were facial and not factual attacks on the district court's subject matter jurisdiction, and that Safe Cig never called into question the factual predicates to establish diversity jurisdiction, nor did the district court abuse its discretion is denying Safe Cig's request for relief from default judgment.

Case Alert Author: Sean Kurdoglu

Counsel:
Ricardo P. Cestero (argued) and Daniel G. Stone, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, California; for Appellant/Cross-Appellee.

Harry E. Van Camp (argued) and Deborah C. Meiners, DeWitt Ross & Stevens S.C., Madison, Wisconsin, for Appelle/Cross-Appellant.

Author of Opinion: Judge M. Margaret McKeown

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2016 04:35 PM     9th Circuit     Comments (0)  

October 31, 2016
  Teutscher v. Riverside Sheriff's Association
Headline: The Ninth Circuit holds the district court erred in awarding ERISA front pay and reinstatement after the jury already had awarded front pay for state employment law violations.

Areas of Law: Seventh Amendment, ERISA, Remedies

Issues Presented: (1) Whether an award of the equitable remedies of front pay and reinstatement pursuant to ERISA violates the Seventh Amendment after the jury already awarded front pay as damages for state employment law violations; and (2) whether an employee who elected the remedy of front pay would have an unlawful double recovery if also awarded the equitable remedy of reinstatement pursuant to ERISA.

Brief Summary: Plaintiff-Appellee Scott Teutscher ("Teutscher") sued his former employer, Riverside Sheriffs' Association ("RSA") for retaliatory discharge, alleging violations of California law and the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461 ("ERISA"). The jury, using a general verdict form to which neither party objected, awarded Teutscher compensatory damages and punitive damages. Implicit in the jury's award, were amounts for back pay, front pay, and pain, suffering, and emotional distress. Thereafter, the district court ordered Teutscher's reinstatement plus $98,235 per year until reinstatement as ERISA equitable remedies. On appeal, the Ninth Circuit panel reversed the district court's equitable award of front pay on the ERISA claim as violating the Seventh Amendment and the court's reinstatement order because it was duplicative of the front pay remedy.

Significance: When a discharged employee alleges violations of state employment law and ERISA, and the jury's verdict on the state claims includes front pay, it is a violation of the Seventh Amendment for a district court to award additional front pay pursuant to ERISA. Additionally, if the employee elects the remedy of front pay, he may not receive the remedy of reinstatement to cover the same period of time as this would be an unlawful double recovery.

Extended Summary: Riverside Sheriffs' Association ("RSA") is an organization representing law enforcement employees in various collective bargaining agreements. It also administers a Legal Defense Trust ("Trust") governed by ERISA. Teutscher, at-will employee, was the Trust's Legal Operations Manager. He became suspicious that RSA was providing legal services for a criminal defense that was not permitted under the plan. When he informed RSA that he had expressed his concerns to local law enforcement, he was terminated. Teutscher then filed a lawsuit alleging wrongful termination. His complaint included claims for violations of Section 510 of ERISA, 29 U.S.C. § 1140, California Labor Code §§ 98.6 and 1102.5, and California common law.

At trial, a jury decided the state claims. The district court instructed the jury to calculate any damages based on what Teutscher would have earned up to the trial, the value of any future wages and benefits he would have accrued for as long as the jury found he would have been employed by RSA, and punitive damages if they found RSA's conduct was a substantial factor in causing his harm. Using a general verdict form to which neither party objected, the jury awarded Teutscher $457,250 in compensatory damages and $357,500 in punitive damages. Subsequently, the district court held a bench trial on the ERISA claim. The court awarded the equitable remedies of reinstatement and front pay of $98,235 per year until Teutscher was reinstated. RSA appealed on the grounds that the district court violated the Seventh Amendment by awarding additional front pay and the prohibition against double recovery by awarding front pay and reinstatement to cover the same period of time.

On appeal, the Ninth Circuit panel reversed the district court's equitable awards of front pay and reinstatement. As to the first issue, the court recognized that Seventh Amendment provides the right to trial by jury is to be preserved in suits at common law and that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." In this case, the state law claims and the remedy of damages were legal remedies, while the relevant ERISA remedies were exclusively equitable. Thus, Teutscher had a right to a jury trial on the state claims, but not for the ERISA remedies. The court also cited Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479 (1962). In Dairy Queen the United States Supreme Court held that where legal and equitable claims turn on common issues of fact, any legal issues must be determined by the jury, and the jury's determination of the issues must occur prior to any final court determination of the equitable claims.

The Ninth Circuit found that the district court contravened these constitutional restraints. Although the district court's ERISA remedies shared common questions of fact with the jury's damages calculation, the court's findings conflicted with the jury's on front pay. Teutscher's California damages claims included front pay for salary and benefits he would have earned from employment after the trial. Thus, a legal front pay award under the state's law turned on the same issues of facts as an equitable front pay award under ERISA. The jury decided the front pay issue, and the Seventh Amendment does not permit the jury's findings to be cast aside in this matter. For this reason, the district judge erred in awarding additional front pay.

The court rejected Teutscher's argument that the jury did not actually award him front pay. First, the Ninth Circuit found that the lump-sum format of the jury verdict form prevented it from ascertaining the relative amounts of back pay and front pay that the jury awarded. Teutscher asked the jury to award him front pay and did not object to the lump-sum verdict form, thereby waiving any argument that the jury's verdict should or could be parsed between its compensatory components. It is possible the damages award included front pay. Moreover, even if the court could parse the jury award and find the jury awarded zero front pay, this would be a jury finding of fact. For these reasons, the district court had no authority to disregard the jury's findings and award additional front pay.

Next, the Ninth Circuit considered whether the district court erred in ordering Teutscher's reinstatement because of the potential overlap with his damages award and because Teutscher waived reinstatement when he elected to seek front pay from the jury. The court discussed how the doctrine of double recovery dictates that a plaintiff can recover no more than the loss actually suffered. A plaintiff is unjustly enriched when he receives damages in excess of his injuries. The ERISA equitable remedies of reinstatement and front pay are alternative remedies which cannot be awarded to cover the same period of time.

In this case, Teutscher waived his right to reinstatement when he affirmatively elected to seek front pay from the jury. Under the election of remedies doctrine, a party is bound by his election of remedies if three conditions are met: "(1) two or more remedies ... existed at the time of the election, (2) these remedies [are] repugnant and inconsistent with each other, and (3) the party to be bound ... affirmatively chose[], or elected, between the available remedies." Because all of these conditions are met in the instant case, Teutscher was foreclosed from seeking the reinstatement remedy.

For these reasons, the Ninth Circuit reversed the district court's equitable awards of front pay and reinstatement.

To read the full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/26/13-56411.pdf

Panel: Milan D. Smith, Jr., Paul J. Watford, and Michelle T. Friedland, Circuit Judges

Argument Date: January 5, 2016

Date of Issued Opinion: August 26, 2016

Docket Number: 13-56411

Decided: Reversed the district court's ERISA equitable awards of reinstatement and front pay

Case Alert Author: Amanda Cline

Counsel: Daniel P. Stevens (argued) and Heather K. McMillian, Stevens & McMillian, Tustin, California, for Plaintiff-Appellee

Jon R. Williams (argued), Williams Iagmin LLP, San Diego, California, for Defendant-Appelle.
William N. Woodson, III (argued), Law Offices of Wm. N. Woodson, III APC, Fallbrook, California, pro se Intervenor-Appellant

Author of Opinion: Judge Friedland

Concurrence: Judge Smith

Circuit: Ninth Circuit

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 10/31/2016 12:41 PM     9th Circuit     Comments (0)  

October 27, 2016
  Diaz v. City of Anaheim
Headline: The Ninth Circuit held that the district court erred by not bifurcating the liability and damages phases of a trial involving allegations of excessive force by police and by admitting inflammatory gang affiliation evidence on the question of liability.

Areas of Law: Civil Rights, Civil Procedure, Evidence

Issues Presented: Whether the district court erred in not bifurcating the liability and damages phases of a trial involving alleged excessive force by the police and allowing the jury to hear prejudicial gang affiliation evidence on the question of liability.

Brief Summary: The Ninth Circuit panel reversed the decision of the district court and remanded the case for a new trial. Inflammatory evidence of gang membership was irrelevant to the question of whether the police used excessive force. The district court erred by not bifurcating the liability and damages phases of the trial and admitting gang membership evidence on the question of liability. As to the excessive force claim, the Ninth Circuit panel affirmed the district court's decision to deny Plaintiffs' motion for judgment as a matter of law.

Extended Summary: City of Anaheim Police Officer Nicholas Bennallack ("Bennallack") shot and killed Manuel Diaz ("Diaz") after a foot pursuit in gang territory in the city. Bennallack testified he shot Diaz because he believed Diaz had a gun and was ready to fire. Other witnesses disagreed about Diaz's movements. Although officers found a cell phone and narcotics pipe nearby Diaz, no firearm was recovered at the scene. Diaz died a short time later.

Diaz's estate and his mother ("Plaintiffs") sued the City of Anaheim and Bennallack for non-economic damages under 42 U.S.C. § 1983, claiming for excessive force, unlawful detention under the Fourteenth Amendment, and battery.

Before the trial, the district court ruled on a number of motions in limine relating to Diaz's gang affiliation as to the issue of liability. The court excluded photographs of Diaz's gang tattoos, but noted that it would revisit the admissibility issue if Diaz's mother testified that she had no knowledge of his gang affiliation. The court also decided a gang expert could testify as to Diaz's gang membership, but only relevant as to damages. It excluded unduly prejudicial testimony about gang activities in general and Diaz's specific gang activities.

Plaintiffs moved to bifurcate the liability phase from the damages phase to keep prejudicial information unknown to Bennallack at the time of the shooting from the jury. The district court agreed to sever punitive damages from liability and compensatory damages, but refused to bifurcate liability from compensatory damages, explaining that limiting instructions would cure any potential prejudice.

During the trial, and over Plaintiffs' attorney's repeated objections, the district court's evidentiary rulings failed to comport with its pretrial rulings so that the jury was exposed to "copious amounts of inflammatory and prejudicial evidence with little (if any) relevance." The most prejudicial evidence related to Diaz's gang membership, including testimony from the gang expert, photographs featuring Diaz's gang tattoos, and Diaz posing with guns and throwing gang signs, none of which Bennallack knew about when he shot Diaz. Although the court at times ordered the gang expert's testimony stricken, the jury was exposed to testimony wholly irrelevant to liability and of limited relevance even as to damages. Other inflammatory evidence admitted over Plaintiffs' objections concerned Diaz's drug use, the amount of methamphetamine in Diaz's system at the time of the shooting, and whether Diaz was under the influence of methamphetamine when shot.

After hearing the evidence, the jury returned a verdict for Defendants, finding Bennallack did not use excessive or unreasonable force. Plaintiffs moved for a new trial, but the court denied the motion. This appeal followed.

The Ninth Circuit panel began its opinion by stating that Federal Rule of Civil Procedure 42(b) permits a trial court to order a separate trial of separate claims or issues for convenience, to avoid prejudice, or to economize. This includes the authority to separate trials into liability and damages phases. De Anda v. City of Long Beach, 7 F.3d 1418, 1421 (9th Cir. 1993). The court held that the district court abused its discretion by refusing to bifurcate the compensatory damages phase, thereby allowing unduly prejudicial evidence on the question of liability. As a result, despite the trial court's pre-trial evidentiary rulings, the jury was exposed to "copious amounts of inflammatory and prejudicial evidence" relating to Diaz's alleged gang activity and drug use. Gang evidence has the potential to be particularly prejudicial. Kennedy v. Lockyear, 379 F.3d 104,1055 (9th Cir. 2004). The court described the gang evidence here as "simply overkill."

The Ninth Circuit panel cautioned that it was not announcing a rule that requires district courts to "always, usually, or frequently" bifurcate damages from liability, as trial courts have broad discretion. But where graphic and prejudicial evidence about the victim has little or in large part no relevance on the liability issue, courts should bifurcate.

To assist the district court in the retrial of this case, the court provided the following "guidance." First, evidence of Diaz's drug use and gang affiliation has marginal, if any, probative value as to damages, and none as to liability. Second, if Plaintiffs will stipulate Diaz was a gang member, no expert testimony about gangs should be admitted. Third, the district court should recognize that a limiting instruction may not sufficiently mitigate the prejudicial impact of evidence in all cases. Fourth, if the trial court is going to strike testimony, the court should clearly identify what testimony was improperly given and instruct the jury that it may not be considered. Further, the court should warn witnesses and attorneys that further attempts to "push the envelope" could lead to greater sanctions as "lawyers and witnesses, like misbehaving children or rattled basketball players, sometimes need a timeout."

Finally, the Ninth Circuit panel considered the Plaintiff's cross-appeal, claiming the district court erred in denying their motion for judgment as a matter of law on the excessive force issue. The court affirmed the denial of the motion because there were factual issues for the jury to resolve.

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...16/08/24/14-55644.pdf

Panel: Marsha S. Berzon and John B. Owens, Circuit Judges, and Alegnon L. Marbley, District Judge

Argument Date: July 7, 2016

Date of Issued Opinion: August 24, 2016

Docket Number: No. 14-55644

Decided: Reverse and Remanded

Case Alert Author: Kimberly Dang

Counsel: Dale K. Galipo (argued) and Melanie T. Partow, Law Offices of Dale K. Galipo, Woodland Hills, California; Angel Carrazco, Kr., Carrazco Law, A.P.C., Tustin, California; Paul L. Hoffman, Schonbrum Desimone Seplow Harris & Hoffman, LLP, Venice, California; Humberto Guizar, Humberto Guizar Law Offices, Montebello, California; for Plaintiffs-Appellants

Moses W. Johnson, IV (argued), Assistant City Attorney, Anaheim, California; Steven J. Rothans and Jill Williams, Carpenter, Rothans & Dumont, Los Angeles, California; for Defendants-Appellants

Author of Opinion: Judge Owens

Circuit: Ninth Circuit

Case Alert Supervisor: Philip Merkel

    Posted By: Glenn Koppel @ 10/27/2016 03:42 PM     9th Circuit     Comments (0)  

  Castro v. County of Los Angeles
Headline: The Ninth Circuit, sitting en banc, upholds a jury verdict under 42 U.S.C. § 1983 finding individual and municipal entity defendants liable for violating pretrial detainee's fundamental due process right to be protected from harm at the hands of another inmate.

Areas of Law: Civil Rights, Constitutional Law, Fourteenth Amendment, Due Process Clause, Pretrial Detainees

Issues Presented: (1)Whether the evidence supported the jury finding that defendant jail employees knew of the substantial risk of serious harm and thus were liable for plaintiff's injuries resulting from a beating by another inmate; and (2) whether the evidence supported the jury finding that the entity defendants had notice that their customs and policies posed a substantial risk to persons detained in a sobering cell and were deliberately indifferent to that risk.

Brief Summary: The Ninth Circuit affirmed the district court's judgment in an action brought against individual defendants Christopher Solomon and David Valentine and entity defendants County of Los Angeles and Los Angeles Sheriff's Department under 42 U.S.C. § 1983 by Plaintiff Jonathan Michael Castro. Castro, a pretrial detainee, alleged his due process right to be protected from harm was violated when he was severely beaten and injured in his cell by another inmate. The jury returned a verdict for Castro and the district court denied defendants' motion for judgment as a matter of law. A three-judge panel of the Ninth Circuit affirmed the judgment as to Solomon and Valentine but reversed as to the County and the Sheriff's Department. A majority of active non-recused judges voted to rehear the case en banc.

Relying on Kingsley v. Henrickson, 135 S. Ct. 2466 (2015), the Ninth Circuit concluded that the evidence supported the jury's findings that Solomon and Valentine were responsible for Castro's injuries. It held that a pretrial detainee must prove the following in a Fourteenth Amendment failure-to-protect claim against an individual officer: (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) those conditions put the plaintiff at substantial risk of suffering serious harm; (3) the defendant did not take reasonable available measures to abate that risk, even though a reasonable officer under the circumstances would have appreciated the high degree of risk involved - making the consequences of the defendant's conduct obvious; and (4) by not taking such measures the defendant caused plaintiff's injuries.

The Ninth Circuit also held that the entity defendants had notice that their customs or policies posed a substantial risk of serious harm to persons detained in the sobering cell and were deliberately indifferent to that risk. The Court found that the custom or policy to use a sobering cell that lacked adequate surveillance caused Castro's injury, and that substantial evidence supported the jury's finding that the entity defendants knew the customs and policies could lead to a constitutional violation.
Significance: The Ninth Circuit announced the standards to analyze Fourteenth Amendment failure-to-protect claims brought by pretrial detainees against individual and entity defendants.
Extended Summary: Plaintiff-Appellee Castro ("Castro") was detained by the Los Angeles Sheriff's Department and put in a sobering cell in the West Hollywood police station. Several hours later, authorities placed John Gonzales ("Gonzales") in the same cell. Gonzales had been arrested on a felony charge and was enraged and combative. Castro banged on the cell's window to try and attract attention but no officials responded. An unpaid community volunteer walked by the cell about 20 minutes after Castro had sought help and noticed that Gonzales was inappropriately touching Castro's thigh while Castro appeared to be asleep. The volunteer did not enter the cell to investigate. Six minutes later Solomon, the station's supervising officer, arrived at the cell and discovered Gonzales stomping on Castro's head and found Castro lying unconscious in a pool of blood. Castro was hospitalized for four days and transferred to a long-term care facility where he remained for four years.

Castro filed a complaint against Solomon and Solomon's supervisor, Valentine ("individual defendants"), and the County of Los Angeles and the Los Angeles County Sheriff's Department ("entity defendants") claiming that Castro's constitutional rights were violated as a result of being housed in the sobering cell with Gonzales without appropriate supervision.

After Castro presented his case at trial, defendants moved for judgment as a matter of law on the grounds that: (1) there was insufficient evidence that the design of a jail cell constitutes a policy, practice, or custom by the County of Los Angeles that resulted in a constitutional violation; (2) there was insufficient evidence that a reasonable officer would have known that housing Castro and Gonzales together was a violation of Castro's constitutional rights; and (3) there was insufficient evidence for the jury to award punitive damages. The district court denied the motion. The jury returned a verdict for Castro and awarded him over $2 million in damages. Defendants renewed their motion for judgment as a matter of law, but the district court denied it. Defendants timely appealed.

A three-judge panel of the Ninth Circuit affirmed the judgment of the district court as to the individual defendants, but reversed as to the entity defendants. Castro v. County of Los Angeles, 797 F.3d 654 (9th Cir. 2015). A majority of active non-recused judges thereafter voted to rehear the case en banc. Castro v. County of Los Angeles, 809 F.3d 536 (9th Cir. 2015).

Claim against the individual defendants: The first issue addressed in the en banc opinion is the claim against the individual defendants. They maintained that they are entitled to qualified immunity and that Castro failed to show that they were deliberately indifferent to a substantial risk of serious harm. In determining whether an officer is entitled to qualified immunity, a court must evaluate two independent questions: (1) whether the officer's conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the incident. See Pearson v. Callahan, 555 U.S. 223, 232 (2009).

Here, the Ninth Circuit recognized Castro's due process right, as a pretrial detainee who had not been convicted of any crime, to be free from violence from other inmates. The Ninth Circuit noted that a right is clearly established when the "contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). The "contours" of Castro's rights were his right to be free from violence at the hands of other inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994). The Ninth Circuit determined that these "contours" are clearly established. They require only that individual defendants take reasonable measures to mitigate the substantial risk to Castro. Thus, qualified immunity does not bar the claim against the individual defendants.

In order for a pretrial detainee to sue prison officials under the Fourteenth Amendment's Due Process Clause for failure to protect or for the use of excessive force, the plaintiff must show that the prison officials acted with "deliberate indifference." Bell v. Wolfish, 441 U.S. 520, 535 (1979). The standard to prove "deliberate indifference" under the Eighth Amendment is well established. An "official must demonstrate a subjective awareness of the risk of harm" in order to find an individual deliberately indifferent under the Eighth Amendment. Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010).

The standard for deliberate indifference under the Fourteenth Amendment is less clear. In Clouthier v. County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010), the Ninth Circuit held the subjective test applied in Fourteenth Amendment cases. The Supreme Court, however, cast doubt on that holding in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). Kingsley involved the use of excessive force against a pretrial detainee. The Supreme Court held the detainee must show only that the forced used against him was objectively unreasonable. Id. at 2473-74.

In the instant case, the Ninth Circuit applied the Kingsley objective standard to failure-to-protect claims and overruled the portions of Clouthier requiring a plaintiff to prove subjective intent to punish. The court recognized that an excessive force claim requires an affirmative act while a failure-to-protect claim usually involves inaction. The first question in a failure-to-act case is whether the officer's conduct was intentional. The second question involves the objective standard: whether a substantial risk of harm could have been eliminated through reasonable and available measures that the officer did not take.

Putting these principles together, the Ninth Circuit held the elements of a pretrial detainee's Fourteenth Amendment failure-to-protect claim against an individual officer are: (1) that the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) that those conditions put the plaintiff at substantial risk of suffering serious harm; (3) that the defendant did not take reasonable measures to abate the risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved; and (4) that by not taking such measures, the defendant caused the plaintiff's injuries.

Here, the individual defendants did not argue that their conduct was unintentional. The Ninth Circuit held there was sufficient evidence for the jury to find the individual defendants knew of the substantial risk of serious harm to Castro and that a reasonable officer would have appreciated the risk. On that basis, the Ninth Circuit found the evidence sufficient to sustain the judgment in favor of Castro.

Claim against the entity defendants: The second issue addressed on appeal was the claim against the entity defendants. Pursuant to the Supreme Court holding in Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), in order to establish municipal entity liability, a plaintiff must show that a "policy or custom" led to the plaintiff's injury. In City of Canton v. Harris, 489 U.S. 378, 392 (1989), the Court further held that the plaintiff must demonstrate that the policy "reflects deliberate indifference to the constitutional rights of its inhabitants."

The Ninth Circuit addressed whether the entity defendants had a policy or custom that caused Castro's injury. The entity defendants argued that the architecture of the West Hollywood police station's sobering cell cannot be a policy, custom, or practice. The Ninth Circuit avoided deciding this question by holding that inadequate audio monitoring of the sobering cell and the policy to check on inmates only every 30 minutes amounted to a "custom or policy" under the standard. Had the entity defendants provided consistent monitoring or had they required Castro and Gonzales to be housed in different cells, the attack could have been averted. Therefore, the entity defendants' custom or policy caused Castro's injury.

Next, the court addressed whether the custom or policy reflected deliberate indifference on the part of the entity defendants. In City of Canton, the Supreme Court articulated a standard for permitting liability on a showing of "actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens." 489 U.S. at 396. In determining whether a policy or custom is adhered to with deliberate indifference, the Court established that an objective standard applies. See Gibson v. County of Washoe, 290 F.3d 1175, 1195 (9th Cir. 2002). The Ninth Circuit found that the West Hollywood police station's manual mandates that a sobering cell allow for maximum visual supervision of prisoner by staff, but the cell was non-compliant in this regard. The manual provision was aimed at mitigating the risk of serious injury to individuals housed in sobering cells. This conclusively showed that the entity defendants knew of the risk of the very type of harm that befell Castro. For these reasons, judgment against the entity defendants was affirmed.


To read the full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/15/12-56829.pdf
Panel (en banc): Sidney R. Thomas, Chief Judge, and Susan P. Graber, Ronald M. Gould, Richard A. Paez, Consuelo M. Callahan, Carlos T. Bea, Milan D. Smith, Jr., Sandra S. Ikuta, Paul J. Watford, John B. Owens, and Michelle T. Friedland, Circuit Judges
Argument Date: March 22, 2016

Date of Issued Opinion: August 15, 2016

Docket Number: 12-56829

Decided: Affirmed.

Case Alert Author: Brandon Homan
Counsel: Melinda Cantrall (argued) and Thomas C. Hurrell, Hurrell Cantrall LLP, Los Angeles, California, for Defendants-Appellants
John Burton (argued), Law Offices of John Burton, Pasadena, California; Maria Cavalluzzi, Cavalluzzi & Cavalluzzi, Los Angeles, California; and M. Lawrence Lallande, Lallande Law PLC, Long Beach, California, for Plaintiff-Appellee
David M. Shapiro (argued), Roderick and Solange MacArthur Justice Center, Northwestern University School of Law, Chicago, Illinois; Paul W. Hughes, Mayer Brown LLP, Washington, D.C.; David C. Fathi, ACLU National Prison Project, Washington, D.C.; Peter Eliasberg, ACLU Foundation of Southern California, Los Angeles, California; for Amici Curiae ACLU of Southern California, American Civil Liberties Union, Human Rights Defense Center, National Police Accountability Project, and Roderick and Solange MacArthur Justice Center
Author of Opinion: Circuit Judge Susan P. Graber

Dissent: Circuit Judge Consuelo M. Callahan dissented in part, joined by Judges Carlos T. Bea and Sandra S. Ikuta. Judge Callahan agreed with the judgment against the individual defendants but disagreed as to the entity defendants.

Dissent: Circuit Judge Sandra S. Ikuta dissented, joined by Judges Consuelo M. Callahan and Carlos T. Bea, to express disagreement with in the majority's interpretation of Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015).

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 10/27/2016 03:36 PM     9th Circuit     Comments (0)  

  Dugard v. United States
Dugard v. United States - Ninth Circuit

Headline: A Ninth Circuit panel references California law in holding that the Federal Tort Claims Act ("FTCA") does not impose a duty on the U.S. government to protect the general public from injuries caused by convicts released on parole.

Areas of Law: Federal Tort Claims Act, Sovereign Immunity

Issue Presented: Whether the United States is liable for negligence under the FTCA for its probation officers' failure to control a dangerous parolee where a private individual would not be liable in like circumstances under California law.

Brief Summary: The Ninth Circuit considered the district court's grant of summary judgment finding that federal parole officers are not liable for the actions of parolees under the FTCA. Appellant Jaycee Dugard ("Dugard"), who was kidnapped and imprisoned for 18 years by parolee Phillip Garrido's ("Garrido"), sued the United States on behalf of herself and her minor children claiming that federal parole officers' failure to report Garrido's parole violations caused them injury. The district court granted summary judgment on the grounds that the United States waived sovereign immunity under the FTCA, 28 U.S.C. § 2674, only in cases where a private individual would be liable in like circumstances under applicable state law. The district court found the parole officers would not have been liable under California law.

The Ninth Circuit affirmed. It relied on the language of the FTCA and LeBarge v. Mariposa City, 798 F.2d 364, 367 (9th Cir. 1986), where the Ninth Circuit found a court's job was to apply the "most reasonable analogy" under state law. The court found that federal parole officers are most analogous to private rehabilitation centers, and because such centers would not be liable in similar circumstances under California law, the United States was not liable under the FTCA for the parole officers' conduct.

Significance: The United States is not liable under the FTCA for the negligence of its parole officers in monitoring parolees where there would not be liability in analogous circumstances under applicable state law.

Extended Summary: Garrido served 11 years of a 50-year prison sentence for the kidnapping and rape of two women in 1976. Medical professionals determined that Garrido's sexual violence was exacerbated by abuse of methamphetamines. When Garrido was released on parole in 1988, his parole terms included mandatory drug testing.

In the first 30 months after his release, Garrido's parole officers failed to report approximately 70 drug-related parole violations. While on parole in 1991, Garrido kidnapped Dugard who was age 11. For the next 18 years, Garrido imprisoned Dugard in his backyard where he repeatedly raped and drugged her. Dugard gave birth to two of Garrido's children without any medical treatment. She and her children remained captive until their discovery in 2009.

In September 2011, Dugard sued the United States under the FTCA on her own behalf and as guardian of her children. She alleged that federal parole officers negligently supervised Garrido, including failure to report his numerous parole violations. She alleged that, but for the parole officers' negligence, Garrido's parole would have been revoked and he would have been unable to kidnap Dugard in 1991.

Following discovery, the United States moved for summary judgment on grounds that the FTCA barred Dugard's claims because there is no liability for private individuals in like circumstances under California law, as required to sustain a FTCA claim under 28 U.S.C. § 2674. The district court found private parties providing criminal rehabilitative services to be the reasonable analogy to parole officers under California law. California law holds that such private parties do not owe a duty of reasonable care to control others generally, but only to a very small group of specifically identifiable and foreseeable victims. Since Dugard did not allege she was a specifically identifiable victim, the United States owed no duty of care to Dugard and her children.

On appeal, the Ninth Circuit affirmed the judgment. The court discussed the FTCA by which the United States has waived sovereign immunity in limited cases. The statute provides the United States is liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The Court cited LeBarge v. Mariposa City, 798 F.2d 364, 367 (9th Cir. 1986), a Ninth Circuit precedent in which the court held that FTCA claims require courts to adopt a "reasonable analogy" standard when determining if immunity is waived.

The Ninth Circuit panel reasoned that the California cases most analogous to Dugard's situation involved the liability of private criminal rehabilitation facilities. Under California law, such private companies do not owe a duty of care to the public at large for the actions of inmates or parolees under their supervision. Cardenas v. Eggleston Youth Ctr., 238 Cal. Rptr. 251, 252-53 (Ct. App. 1987) (holding that a private rehabilitation facility owes no duty of care to "members of the community in which it is located for the criminal conduct of its residents"); Beauchene v. Synanon Found, Inc., 151 Cal. Rptr. 796, 798-99 (Ct. App. 1979) (holding that a private rehabilitation center owed no duty to the plaintiff to control the behavior of a convict who escaped the facility and shot the plaintiff). Rather, privately owned criminal rehabilitation facilities only owe a duty to individuals who are foreseeable and specifically identifiable victims of their wards' conduct. Vu v. Singer Co., 706 F.2d 1027, 1029 (9th Cir. 1983) (discussing the duty to warn under California law and concluding that it "clearly" requires a "foreseeable and specifically identifiable" victim); Rice v. Ctr. Point, Inc., 65 Cal. Rptr. 3d 312, 316 (Ct. App. 2007) (explaining that a duty exists only where the "injury is foreseeable and the intended victim is identifiable").

The Ninth Circuit panel stated that Dugard neither argued nor submitted facts to suggest that she was a specifically identifiable victim who would have a viable claim against an analogous private party under California law. Because the extent of the federal government's liability under the FTCA is described with reference to state law, when California limited the liability of private rehabilitative institutions, the federal government's liability under the FTCA shrunk as well. The Ninth Circuit panel also noted how limiting liability for officials involved in the release and rehabilitation of criminal offenders is consistent with California's public policies that encourage criminal rehabilitation. To hold otherwise would force the range of goals to shift from rehabilitation to protecting the public, thereby disrupting the ability of probation officers to develop flexible and appropriately tailored approaches suited for each offender. This would be a disservice to both the offenders and society.

To read the full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/26/13-17596.pdf

Panel: William E. Smith, Chief District Judge of Rhode Island sitting by designation, and Richard R. Clifton, John B. Owens, Carlos T. Bea, Circuit Judges

Argument Date: January 12, 2016

Date of Issued Opinion: August 26, 2016

Docket Number: 13-17596

Decided: Affirmed

Case Alert Author: Devin Bruen

Counsel:
In No. 13 - 17596: Jonathan P. Steinsapir (argued), Dale F. Kinsella, Amber Holley Melius, and David W. Swift, Kinsella Weitzman Iser Kump & Aldisert, LLP, Santa Monica, California, for Plaintiff-Appellant

Patrick G. Nemeroff (argued) and Mark B. Stern, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for Defendant-Appellee

Author of Opinion: Judge Owens

Dissent: Judge Smith

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 10/27/2016 03:35 PM     9th Circuit     Comments (0)  

  Preap v. Johnson
Headline: Ninth Circuit holds immigration authorities may detain criminal aliens without a bond hearing only when aliens are detained promptly after their release from criminal custody.

Area of Law: Immigration Law

Issue Presented: Whether the phrase "when the alien is released" in the mandatory detention provision of 8 U.S.C. § 1226(c)(1) permits the government to detain individuals without a bond hearing long after they were released and resettled in the community.

Brief Summary: The Ninth Circuit panel affirmed the district court's finding that the phrase "when...released" in the mandatory detention provision without a bond hearing applies only when immigration detention takes place promptly after release, as opposed to sometime long after. The plaintiffs in the class action were convicted of crimes, served their sentences, and had been released and returned to the community for years before they were arrested and detained by immigration authorities under the mandatory detention provision. The plaintiffs argued that the phrase "when...released" allowed for detention without a bond hearing only when promptly detained after release from criminal custody. The government countered that the statute gave immigration authorities the power to detain without a bond hearing at any time after release. The Ninth Circuit panel considered the text of the statute, the context, and the legislative intent, and held that the legislature intended for the provision to apply only to those criminal aliens who were promptly detained after release from criminal custody. However, the Ninth Circuit panel avoided defining the parameters of what "promptly" would entail, as it was not an issue before the court.

Significance: Criminal aliens who have been released after serving their sentences and long since reentered society may not be detained without a bond hearing. Mandatory detention without a bond hearing as provided under 8 U.S.C. § 1226(c) only applies when the government promptly detains a criminal alien after the individual's release from custody.

Extended Summary: The named plaintiffs in this class action, Mony Preap ("Preap"), Eduardo Vega Padilla ("Padilla"), and Juan Lozano Magdaleno ("Magdaleno") are lawful permanent residents who committed crimes that may lead to their removal from the United States. Upon serving their criminal sentences, plaintiffs returned to their communities where they remained for years. Immigration authorities later took plaintiffs into custody and held them without bond hearings under the mandatory detention provision.

Preap is a lawful resident of the United States since 1981. In 2006 he was twice convicted of possession of marijuana and served both sentences. Years after being released, Preap served a sentence for simple battery, a crime not enumerated in the mandatory detention statute. Upon release, he was held without a bond hearing in immigration detention. Padilla has also been a lawful resident for 30 years. He has convictions for drug possession and owning a firearm with a prior felony conviction. Eleven years after finishing his last criminal sentence, he was placed in mandatory detention. Magdaleno, a lawful resident since 1974, has convictions for owning a firearm with a prior felony conviction and possession of a controlled substance. Magdaleno served his sentence and was released. Over five years later, immigration authorities took him into custody and held him without a bond hearing.

Plaintiffs filed a class action petition for habeas relief in the United States District Court for the Northern District of California. The motion for class certification was granted, and a preliminary injunction was issued requiring all class members to be provided a bond hearing under § 1226(a). The class extended to all "ndividuals in the state of California who are or will be subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a § 1226(c)(1) offense." Preap v. Johnson, 303 F.R.D. 566, 571, 584 (N.D. Cal. 2014).

The Immigration and Naturalization Act's ("INA") mandatory detention provision, 8 U.S.C. § 1266(c), requires immigration authorities to detain aliens who have committed an offense enumerated in the INA, and to do so "when the alien is released" from criminal custody, without bond. Enumerated offenses range from serious felonies to simple possession of a controlled substance.

The mandatory detention provision has survived several challenges over the years, and has even gone to the Supreme Court of the United States to test its constitutionality. Here the Ninth Circuit panel considered whether the phrase "when [they are] released" in the mandatory detention provision requires that the government detain even those aliens that have resettled into the community. If it does not, then the alien may still be detained, but subject to a bond hearing wherein the alien must show he poses neither a risk of flight nor a danger to the community.

In considering this issue, the Ninth Circuit panel looked to the text of the two relevant statutory provisions. 8 U.S.C. § 1226(a) requires the Attorney General to detain any alien upon the initiation of removal proceedings, and choose to keep the individual in detention or release on conditional parole or bond. The alien may seek review of the Attorney General's decision by an immigration judge, but the immigration judge must consider whether the alien "is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk." Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006); see also 8 § C.F.R. 1236.1(c)(8). The second relevant provision is 8 U.S.C. § 1226(c). Section 1226(c)(1) requires the Attorney General to "take into custody" any alien who has committed an enumerated offense "when the alien is released" from criminal custody. Section 1226(c)(2) prohibits the Attorney General from releasing an alien described in § 1226(c)(1) except for certain aliens in the Federal Witness Protection Program.

Plaintiffs argued that the text "when...released" in § 1226(c)(1) also applies to § 1226(c)(2), thereby allowing aliens to be detained without bond only if they are taken into immigration custody promptly after release from criminal custody. The government, on the other hand, argued that the phrase "when...released" meant that an alien may be held without bond regardless of how much time has passed between criminal custody and immigration custody.

The Ninth Circuit noted a split in authority among United States Circuit Courts of Appeals on this issue. Of the five circuits that have considered the issue, four circuits (the Second, Third, Fourth, and Tenth) sided with the government, while the First Circuit sided with the plaintiffs' position.

The Ninth Circuit panel agreed with the First Circuit's conclusion in Castañeda v. Souza, 810 F.3d 15 (1st Cir. 2015) that the statutory context and legislative history make it clear that the provision allows for a criminal alien to be held without bond only if detained "when...released" from criminal custody, not after a lengthy gap in time. In its opinion, the Ninth Circuit considered and rejected three arguments the government advanced in support of its position: (1) that the court should give Chevron deference to the Board of Immigration Appeals' ("BIA") interpretation; (2) that the phrase "when...released" triggers a duty, rather than a time limit; and (3) even if Congress intended that immigrations promptly detain criminal aliens when they are released, it did not intend that they would lose the authority to do so in the event of delay.

The first issue is whether courts should defer to the BIA's interpretation of § 1226(c)(2) to include any alien described in § 1226(c)(1) as subject to detention without bond, regardless of when the alien was taken into immigration custody. (The Second and Tenth Circuits based their decisions on Chevron deference.) See Lora v. Shanahan, 804 F.3d 601, 612 (2d Cir. 2015); Olmos v. Holder, 780 F.3d 1313, 1322 (10th Cir. 2015). In addressing this issue, the Ninth Circuit panel looked to the text of the statute and the legislative intent and noted that § 1226(c)(2) refers to "an alien described in paragraph (1)" rather than the select subsections within it, and that the legislature must have deliberately selected this language to include the phrase "when...released." Because Congress did not choose to qualify the description of an alien to be those in §§ 1226(c)(1)(A) through 1226(c)(1) (D), the Court included the breadth of § 1226(c)(1) in its interpretation, thus holding that the plain meaning is for the provision to apply to criminal aliens "when...released."

The context of the statute supported this decision, as § 1226(a) provides authority for the detention of any alien in removal proceedings and § 1226(c) provides for the mandatory detention in limited circumstances. Sections 1226(a) and 1226(c) each have their own provisions for both the detention and release of aliens. Thus if the government fails to detain an alien "when...released" under § 1226(c)(2), then the government's authority to do so under § 1226(c) is lost, and the government must proceed under § 1226(a) with a bond hearing provided.

The Ninth Circuit also addressed the BIA's interpretation that authorities may detain on the authority of § 1226(a) while applying the release conditions of § 1226(c)(2). The Board's interpretation was dismissed by looking at the structure of the statute and how § 1226(c) as a whole is entitled "Detention of criminal aliens." The Ninth Circuit panel found this wording as creating an exception to the general rule in § 1226(a). As such, the Ninth Circuit panel found that the provisions in § 1226(c)(2) go into effect only where § 1226(c)(1) is satisfied. The Board's interpretation was further dismissed because following the interpretation would render the "when...released" clause inoperative, and would thereby eliminate any requirement that the alien ever be in custody.

The second issue was whether the phrase "when...released" triggered a duty, rather than a time limit, as the Fourth Circuit held in Hosh v. Lucero, 680 F.3d 375, 380 - 81 (4th Cir. 2012). Plaintiffs argued that there is a time limit under which the government must take criminal aliens into immigration custody promptly after release, as opposed to many years later as was done with Plaintiffs. The government argued that the phrase was ambiguous and allowed for both Plaintiffs' interpretation and for the detention at any time after release from criminal custody.

The Ninth Circuit looked to the plain language of the statute and noted that Congress chose the word "when," which suggests a degree of immediacy as opposed to a condition; it did not use phrases such as "in the event of" or "any time after." Congress's purpose in choosing the words "when...released" sets forth a requirement of promptness because the mandatory detention provision's purpose is to address criminal aliens that present an immediate danger or pose a flight risk. It could not have been Congress's intent to allow the delayed detention of such aliens. Those not detained promptly after release are entitled to a bond hearing.

The third issue was whether the delay in prompt detention deprived immigration authorities of the authority to do so. The government argued that the failure to act as required in § 1226(c)(1) does not preclude them to act under § 1226(c)(2). The Second, Third, and Tenth Circuits have also previously held that it does not. See Sylvain v. Atty Gen. of United States, 714 F.3d 150, 157 (3d Cir. 2013); Lora, 804 F.3d at 612; Olmos, 780 F.3d at 1325 - 26. These circuits relied on United States v. Montalvo-Murillo, 495 U.S. 711 (1990). In Montalvo-Murillo, the Supreme Court considered whether a defendant who did not receive a timely hearing immediately upon the first appearance as required by the Bail Reform Act may be released from custody. The Supreme Court held that "a failure to comply with the first appearance requirement does not defeat the government's authority to seek detention of the person charged." 495 U.S. at 717.

The Ninth Circuit panel distinguished Montalvo-Murrillo from the instant case, finding that the sole practical effect of the district court's decision was to reinstate the government's authority under § 1226(a) as to those not timely detained under § 1226(c), and thus there was no loss of authority. Further, while there was no remedy to a delayed hearing in Montalvo-Murrillo, here the statutory structure makes clear exactly what occurs if a prompt detention under § 1226(c) does not occur - the general detention provision of § 1226(a) applies.

The Ninth Circuit panel rejected the argument that not applying the loss-of-authority doctrine would cause dangerous aliens to be eligible for hearings because the design of the mandatory detention provision is aimed towards the detention of criminal aliens who are recently released and are a risk. According to the court, the more time such individuals have spent in the community leading free and productive lives, the less likely they are to be dangerous and enough of a flight risk to warrant the application of the loss-of-authority doctrine.

In conclusion, the Ninth Circuit panel held that the mandatory detention provision of § 1226(c) applies only to those criminal aliens who are detained promptly after their release from criminal custody. However, the Ninth Circuit panel left undefined, the determination of what period of time is sufficient to meet the requirement that such detainment is "promptly" done, as that was not at issue before the court.

To read the full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/04/14-16326.pdf

Panel: Andrew J. Kleinfeld, Jacqueline H. Nguyen, and Michelle T. Friedland, Circuit Judges

Argument Date: July 8, 2015

Date of Issued Opinion: August 4, 2016

Docket Number: 14-16326; 14-16779

Decided: Affirmed

Case Alert Author: Edwin Hong

Counsel:
Hans Harris Chen (argued) and Troy D. Liggett, Trial Attorneys; Elizabeth J. Stevens, Assistant Director; William C. Peachey, Director, District Court Section; Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellants

Theresa H. Nguyen (argued) and Ashok Ramani, Keker & Van Nest LLP, San Francisco, California; Michael K.T. Tan, ACLU Immigrants' Rights Project, New York, New York; Julia Harumi Mass, ACLU Foundation of Northern California, San Francisco, California; Anoop Prasad, Asian Law Caucus, San Francisco, California; for Plaintiffs- Appellees

Author of Opinion: Judge Jacqueline H. Nguyen

Circuit: Ninth Circuit

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 10/27/2016 03:32 PM     9th Circuit     Comments (0)  

  Tompkins v. 23andME, Inc.
Headline: Ninth Circuit panel holds pursuant to the Federal Arbitration Act, 9 U.S.C. § 2 ("FAA") and California's unconscionability rules that provisions in a mandatory arbitration clause in an online consumer contract of adhesion are valid and enforceable.

Areas of Law: Arbitration; Unconscionability; Federal Arbitration Act.

Issues Presented: (1)Whether provisions in an online mandatory arbitration clause authorizing an award of attorney fees and costs to the prevailing party, designating the forum for arbitrations, and excluding intellectual property disputes from arbitration are unconscionable. (2) Whether other provisions of the online agreement establishing a one-year statute of limitations and giving 23andMe a unilateral right to modify the contract render the arbitration provision unconscionable.

Brief Summary: Plaintiffs are customers of 23andMe, Inc., who purchased DNA test kits on-line. They filed a class action lawsuit claiming that provisions of their agreement with 23andMe relating to mandatory arbitration are unconscionable in the following respects: authorizing attorney fees and costs to the prevailing party; establishing San Francisco as the forum for arbitration proceedings; and exempting from mandatory arbitration any disputes relating to intellectual property rights, obligations, or any infringement claims. Plaintiffs also claimed that other contract provisions establishing a one-year statute of limitations period and giving 23andMe a unilateral right to modify the agreement rendered the arbitration clause unconscionable. 23andMe responded with a motion to compel arbitration. The district court granted 23andMe's motion and plaintiffs appealed.

The Ninth Circuit panel recognized that the Federal Arbitration Act, 9 U.S.C. § 2, establishes a strong national policy favoring arbitration. A court may invalidate an arbitration agreement under the "savings clause" of § 2 only in cases where generally applicable contract defenses such as fraud, duress, or unconscionability are present. The court then examined California law to determine whether the provisions would be held unconscionable under that state's law.

The Ninth Circuit concluded that the provision awarding attorney fees and costs to the prevailing party is not unconscionable under California law. Although California appellate courts have held unilateral cost shifting clauses in the arbitration context to be unconscionable, the plaintiffs failed to show the unconscionability doctrine's application in bilateral provision cases. The court also rejected plaintiffs' claim that the fees and costs to the losing party would be too great for plaintiffs to bear as they failed to provide evidence on this point. Second, the Court held that plaintiffs did not prove that the cost and inconvenience of having arbitrations in San Francisco was unreasonable. Third, plaintiffs failed to identify or raise any intellectual property claims that 23andMe might bring against them.

The court next addressed the contract provisions creating the one-year statute of limitations and giving 23andMe the unilateral right to modify the contract. The Ninth Circuit noted that, as a general rule, where the arbitration agreement itself is not unconscionable, provisions outside the arbitration agreement will not make it so. The court relied on California case precedents in finding the one-year statute of limitations was not unconscionable. It also held that plaintiffs could challenge the enforceability of the modification clause in the arbitration proceeding.

Significance: Consumer contracts formed online between individuals and corporations often include mandatory arbitration clauses. The Federal Arbitration Act established a strong national policy favoring arbitration. Federal courts will enforce a mandatory arbitration clause unless an aggrieved party can prove the provision is procedurally and substantively unconscionable under relevant state law.

Extended Summary: 23andMe sold DNA testing kits to customers online through its website. It claimed its service could assist customers in managing health risks as well as preventing or mitigating certain diseases. Before a customer could purchase the kit, the individual was required to click on a link to the company's terms of service and check a box that acknowledged the buyer's assent to the terms. The agreement included a mandatory arbitration provision. The provision authorized an award of fees and costs to the prevailing party and required that arbitration proceedings be governed by California law and held in San Francisco, California. The arbitration clause specifically excluded from arbitration "disputes relating to intellectual property rights, obligations, or any infringement claims." Other contract provisions established a one-year statute of limitations and gave 23andMe a unilateral right to modify the agreement.

In November 2013, the Food and Drug Administration ordered 23andMe to discontinue marketing its services for health purposes until it obtained government approval. Plaintiffs are customers who had purchased DNA test kits online. They brought a number of class action suits against 23andMe, alleging unfair business practices, breach of warranty, and misrepresentation. By agreement, all claims were consolidated in the United States District Court for the Northern District of California.

23andMe filed a motion to compel all plaintiffs to arbitrate their claims. Plaintiffs responded that the mandatory arbitration provision and other clauses of the agreement were unconscionable. The district court found for 23andMe and granted its motion to compel arbitration. Plaintiffs filed a timely appeal.

The Ninth Circuit affirmed the district court decision. The court began its opinion by recognizing that § 2 of the FAA "is a congressional declaration of a liberal federal policy favoring arbitration agreements." Any doubts about the scope of arbitrable issues, including applicable contract defenses, are to be resolved in favor of arbitration. Moses H Cone Memorial Hospital v. Mercury Construction Co., 460 U.S. 1, 24-25 (1983). The court noted that the "savings clause" of § 2 authorizes a court to strike or limit an arbitration provision only in instances involving generally applicable contract defenses, such as fraud, duress, or unconscionability. It held that a federal court must look to relevant state law in deciding whether an arbitration provision is unconscionable. For this reason, the Ninth Circuit examined California authorities to decide whether provisions of the arbitration clause in the instant case were unconscionable.

Under California law, the doctrine of unconscionability is applicable if the written contract is both procedurally and substantively unconscionable, though they need not be present to the same degree. Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power while substantive unconscionability relates to overly harsh or one-sided results. Sanchez v. Valencia Holding Co., 61 Cal. 4th 899, 910 (2015).

The Ninth Circuit first examined the provision in the arbitration clause stating "arbitration costs and reasonable documented attorneys' costs of both parties will be borne by the party that ultimately loses." Plaintiffs contended that if they lost, the arbitrators' charge of $1,500 per day and 23andMe's "top tier" lawyers' fees would be unreasonable, overly burdensome, and unfair. The Ninth Circuit panel reviewed relevant California authorities and found that a number of courts had enforced prevailing party clauses in the non-arbitration context. In cases involving arbitration, several California appellate courts held cost shifting clauses unconscionable where they were unilateral, thus available to only one side. But plaintiffs were unable to produce any case where a bilateral clause awarding attorney fees and costs to the prevailing party was unconscionable. Indeed, Cal. Civil Code § 1717 appears to approve bilateral prevailing party clauses. For these reasons, the Ninth Circuit concluded that the bilateral prevailing party clause in this case was not unconscionable. The court also held that plaintiffs did not offer evidence to show that the arbitration costs and attorney fees would be unaffordable or thwart their ability to arbitrate the dispute.

Next, the Ninth Circuit addressed plaintiffs claim that the designation of San Francisco as the forum for arbitration was unconscionable. It discussed the California Supreme Court's decision in Valentino & Smith, Inc. v. Superior Court, 17 Cal. 3d 491 (1976), which rejected plaintiff's claim that a venue clause was unenforceable because of inconvenience and expense of the forum. In the absence of a showing that such a clause is unreasonable, a forum selection clause is generally valid and enforceable. Further case analysis indicates that the plaintiff has a heavy burden of proof to show a forum-selection clause is unconscionable. This is so even if the clause appears in an adhesion contract. Mere inconvenience or additional expense is not the test. So long as the party had adequate notice as to the forum's location, the clause is enforceable. Here, the Ninth Circuit panel concluded that San Francisco was not an unreasonable choice. San Francisco has a proper connection to the contract as it is 23andMe's principal place of business, seven of the plaintiffs reside in California, and six of the nine actions were filed in California. In addition, the two affidavits claiming financial hardship did not explain why the expense of travelling to the San Francisco venue would be burdensome.

The final arbitration clause provision discussed by the Ninth Circuit exempted "any disputes relating to intellectual property rights, obligations, or any infringement claims" from mandatory arbitration. The court cited California authority stating that substituting arbitration for litigation resulted in no inherent disadvantage. Sonic-Calabasas A, Inc. v. Moreno, 57 Cal. 4th 1109,1152 (2013). Moreover, a one-sided contract is not necessarily unconscionable. The Ninth Circuit also found that the plaintiffs did not identify any intellectual property right that 23andMe was likely to bring against its customers. The rights that were included in arbitration are ones that the plaintiffs are likely to sue on and there was therefore a bilateral aspect to the clause. 23andMe demonstrated the need for the clause since it provided its business with a "margin of safety," which in itself, was not unconscionable. For these reasons, the court held the arbitration clause was enforceable.

The plaintiffs also challenged contract terms creating the one-year statute of limitations and the unilateral right of 23andMe to modify the agreement. The plaintiffs contended that these two provisions rendered the arbitration clause unconscionable. The Ninth Circuit reviewed these issues and ruled that both were enforceable. The court cited Rent-A-Center, W, Inc. v. Jackson, 561 U.S. 63, 70-71 (2010), where the Supreme Court held that a party's challenge to a contract provision or to the contract as a whole does not prevent a court from enforcing an agreement to arbitrate. It cited California authority showing that it was not unconscionable for parties in contractual relations do modify a statute of limitations. The one-year statute of limitations in this case was bilateral; it applied to both parties and both parties had adequate notice and agreed to the provision. As for the provision granting 23andMe the unilateral right to modify the contract, even if this clause is unconscionable, it would not make the arbitration provision or the contract as a whole unenforceable. The Ninth Circuit decided that the plaintiffs are free to argue during arbitration that the unilateral modification clause itself is unenforceable and did not reach that claim in the appeal.

For these reasons, the Ninth Circuit affirmed the district court's decision to grant the motion to compel arbitration.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/23/14-16405.pdf

Panel: Stephen S. Trott, Sandra S. Ikuta, and Paul J. Watford, Circuit Judges.

Argument Date: May 12, 2016

Date of Issued Opinion: August 23, 2016

Docket Number: 14-16405

Decided: Affirmed.

Case Alert Author: David Griego

Counsel: Jeremy Robinson (argued), Jason C. Evans, and Gayle M. Blatt; Casey, Gerry, Schenk, Francavilla, Blatt &Penfield, LLP, San Diego, California; Mark Ankcorn, Ankcorn Law Firm, PC, San Diego, California; for Plaintiff-Appellant

Robert P. Varian (argued), James N. Kramer, M. Todd Scott, and Alexander K. Talarides; Orrick Herrington & Sutcliffe, LLP, San Francisco, California, for Defendant-Appellee

Author of Opinion: Judge Ikuta

Concurrence: Judge Watford

Circuit: Ninth

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 10/27/2016 03:28 PM     9th Circuit     Comments (0)  

October 26, 2016
  Zaloga v. Borough of Moosic - Third Circuit
Headline: Third Circuit rules that retaliation for free speech does not alone overcome qualified immunity doctrine.

Area of Law: Qualified Immunity, Constitutional Law

Issues Presented: Does qualified immunity extend to a government actor's retaliation against a plaintiff for use of free speech?

Brief Summary: The owner of a medical company that serviced Lackawanna County prison engaged in a political dispute with members of Moosic Borough's government. In retaliation, those parties attempted to end his contract with the prison, and he sued for violation of his First Amendment rights. The Third Circuit ruled that the nature of the constitutional principles at play did not create a right clear enough to overcome the reasonableness standard created by the qualified immunity doctrine.

Extended Summary: Plaintiff Dr. Edward Zaloga is the owner of Correctional Care, Inc., a company that services the medical needs of correctional facilities. While living in Moosic Borough in Lackawanna County, his company contracted with Lackawanna County prison. Plaintiff became involved in a dispute with a tire company whose facility was immediately adjacent to his home. He was dissatisfied with the Borough's handling of the situation and began political attacks against the president of the borough council and the mayor.

A month later Plaintiff was informed by the county solicitor that Lackawanna County would not continue its contract with his company upon its expiration. He was also told that he could bid for the contract against other similar companies, but learned from a prison board member that his political opponents were working to block his contract renewal by contacting members of the board and gaining their support. The contract was ultimately renewed in 2009 and again in 2015.

Plaintiff filed a complaint in 2010 for alleged violations of his First and Fourteenth Amendment rights. Defendants moved for summary judgment. That motion was granted in part and denied in part, with the court ruling that the jury should decide whether one defendant was entitled to qualified immunity from suit.

The Third Circuit began by explaining that qualified immunity only shields government agents from suit insofar as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine qualified immunity, the court first examines whether the facts show a violation of the plaintiff's constitutional rights. Second, the court evaluates whether those rights were clearly established in the specific context of the case.

The Court held that because the district court's analysis was mistaken as to the second part of the analysis there was no need to analyze the first. The Court explained that qualified immunity is meant to protect government workers who make mistakes but not those who are plainly incompetent or who knowingly violating the law. Thus, the constitutional right must be clearly established. "[T]he contours of that right must be clear to a reasonable official" so that such officials can be expected not to violate that right. Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012). It is not enough that there is a well-established right against retaliation by a state actor for free speech; this right must be understood by a reasonable state actor.

Turning to Third Circuit precedent, the Court concluded that retaliation for free speech must be of a particularly virulent character to violate a constitutional right. That actor must coerce or threaten a third party to act in order for that conduct to be actionable. McLaughlin v. Watson, 271 F.3d 566 (3d. Cir. 2001). The case at hand involved no such coercion or threats. Furthermore, it has never been established that a governmental official who takes no direct action beyond pressuring others to act can be held personally liable.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/152723p.pdf

Panel (if known): Smith, Jordan, Rendell

Argument Date: July 12, 2016

Date of Issued Opinion: October 24, 2016

Docket Number: 15-2723

Decided: Reversed and Remanded

Case Alert Author: John Farrell

Counsel: Joshua M. Autry, Esq. [Argued], Counsel for Appellants; Bruce L. Coyer, Esq., Joseph T. Healy, Esq. [Argued], Counsel for Appellees

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/26/2016 12:34 PM     3rd Circuit     Comments (0)  

  EMI Christian Music Grp., Inc. et al. v. MP3tunes, LLC et al.
Headline: Second Circuit Vacates District Court's Interpretation of "Repeat Infringer" Under the Digital Millennium Copyright Act

Area of Law: Copyright

Issues Presented: Are internet users who download or copy songs for personal entertainment purposes "repeat infringers" under the safe harbor provision of the DMCA?

Brief Summary: MP3tunes operated two websites: MP3tunes.com and sideload.com. MP3tunes.com was primarily a "locker storage" service, which allowed users to store their music on the MP3tunes server and access it from internet-connected devices. Sideload.com provided a search function to users, allowing them to locate free music on the internet. Sideload.com contained a plug-in allowing users to upload music they found to their MP3tunes.com "locker." Music located in MP3tunes.com users' lockers was also searchable by Sideload.com. A group of record companies and music publishers filed a copyright infringement lawsuit against MP3tunes and its CEO, Michael Robertson. On cross motions for summary judgment, a district court for the Southern District of New York granted the motion in part, finding that MP3tunes qualified for safe harbor protection under the Digital Millennium Copyright Act ("DMCA") because MP3tunes reasonably implemented a "repeat infringer" policy. The Second Circuit found the District Court had construed too narrowly the definition of "repeat infringer" and vacated the District Court's grant of partial summary judgment. To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...33068d9fd4f/1/hilite/


Extended Summary: MP3tunes was founded in 2005 by Michael Robertson. MP3tunes operated two websites. The first, MP3tunes.com, evolved into a "locker storage" service for its users. MP3tunes.com users could upload their songs to the MP3tunes.com server and access them from any internet-connected device. Sideload.com, however, provided a search function for free music to its users. Embedded in the sideload.com website was a feature that enabled users to upload music they found to their MP3tunes.com "locker." The addition of songs to individual users' lockers added to the number of searchable songs in sideload.com's index. Songs uploaded to MP3tunes.com lockers from sideload.com also had the benefit of not being counted towards storage allotments for the user. Since sideload.com was the primary driver of traffic to MP3tunes.com, MP3tunes encouraged users to upload songs from their own accounts.

The District Court found that MP3tunes was afforded the safe harbor protection under the DMCA, which the plaintiffs challenged on appeal. The DMCA provides a safe harbor for internet service providers that "adopt[] and reasonably implement[] . . . a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers." 17 U.S.C. § 512(i)(1)(A). Plaintiffs asserted that MP3tunes failed to satisfy the safe harbor requirements relating to users who created links to infringing content in the sideload.com index.

The District Court found that users who downloaded or copied "songs from third-party sites for their personal entertainment" could not be "repeat infringer[s]." Furthermore, the District Court found that only users who uploaded content are "blatant infringers that internet service providers are obligated to ban from their websites."

The Second Circuit rejected the District Court's definition of "repeat infringer." The DMCA does not define "repeat infringers." Accordingly, the Second Circuit analyzed the term given its ordinary meaning, finding that repeatedly uploading or downloading copyrighted material for personal use does suffice to be found a "repeat infringer." The broader reading of "repeat infringer" is also supported by the structure and context of the DMCA, which relieves service providers from needing to ascertain the users' knowledge to qualify for the safe harbor provision. The Second Circuit also found the legislative history to be in accord with the broader reading of "repeat infringer," while no other circuit had constrained the definition of "repeat infringer" to encompass only willful infringers.

On the motion for summary judgment, MP3tunes offered evidence that they had terminated 153 users who shared their MP3tunes.com passwords. Plaintiffs, however, showed that MP3tunes took no action to try and connect infringing activity (which MP3tunes learned about through various takedown notices) and users who created links to that content. Therefore, a jury could reasonably infer that MP3tunes knew - or consciously avoided knowing - of specific repeat infringers and failed to take action. Accordingly, the Second Circuit vacated the District Court's finding and remanded the case for further proceedings.

Panel: Circuit Judges Cabranes, Straub, and Lohier

Argument Date: May 11, 2016

Date of Issued Opinion: October 25, 2016

Docket Numbers: 12-4369-cv(L), 14-4509-cv(XAP)

Decided: Affirmed in part, Vacated in part, Reversed in part, and Remanded in part.

Case Alert Author: Scott L. Wenzel

Counsel: Andrew H. Bart, Jenner & Block LLP for Plaintiffs-Appellees-Cross-Appellants; Ira S. Sacks, Ackerman LLP for Defendant-Appellant-Cross-Appellee.

Author of Opinion: Judge Lohier

Circuit: Second Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/26/2016 08:14 AM     2nd Circuit     Comments (0)  

October 25, 2016
  Sixth Circuit strikes down canons limiting judicial campaign speech
Case: Winter v. Wolnitzek

Area of law: First Amendment, judicial campaign speech, ethics

Issue presented: Can a state lawfully bar a judicial candidate or judge from endorsing or openly affiliating with a political candidate or party, contributing to political organizations, committing to case rulings, or making misleading or false statements?

Brief summary: In Kentucky, an appointed judge sought to be "re-elected." During her campaign, she promised to work with the legislature to ensure stiff penalties for drug dealers. Similarly, two aspiring judges wanted to hold fund raisers, receive political endorsements, and give speeches in support of their political party. They also wanted to hold leadership positions in their political party. The Kentucky Commissioner notified all three that their actions violated ethics canons. The three candidates challenged the canons on free-speech grounds.

The Sixth Circuit held that clauses restricting campaigning, speeches, false statements, misleading statements, and case "commits" were unconstitutional. But the contributions clause, the endorsements clause, and the leadership clause were narrowly tailored to protect Kentucky's compelling interests and, therefore, were constitutional.

Extended summary: A first-term appointed judge, who was asking voters to "re-elect" her, and two aspiring judges, who wanted their party affiliations known, challenged Kentucky's judicial canons. The canons bar partisan campaigning, partisan endorsements, partisan political contributions, making commitments on cases, and making false or misleading statements.

The appointed judge was advertising her "re-election" campaign, through which she was committing to ensuring that drug dealer received stiff penalties. In a letter from her state's Commissioner, however, she was told that seeking re-election was misleading because she had been initially appointed to her judgeship, not elected. The Commissioner also said that her drug-sentencing commitments were impermissible because her stiff-penalties comment addressed an issue that was likely to come before her in her court.

The two aspiring judges wanted to hold fundraisers, receive endorsements, give speeches to support their political parties, and hold leadership positions within their political parties. Citing bans on these actions in the Kentucky canons, the Commissioner also sent the aspiring judges reprimand letters.

The three candidates sued, arguing that the Kentucky canons violated of their free-speech rights. Because each issue involved free speech, the Sixth Circuit applied a strict-scrutiny analysis.

The Sixth Circuit held that the campaigning clause, which bars political affiliation, and the commits clause, which bans comments on issues likely to come before a court, were both vague, making them unconstitutionally overbroad. And the court found that the speeches clause, which the court believed did both too much and too little to bar judges from making political speeches, was facially invalid.

On the other hand, the contributions clause that bars judges and judicial candidates from seeking election contributions was upheld by the Sixth Circuit because it takes a narrow approach to resolve the state's compelling interest in preventing judicial races as being seen as part of partisan politics and maintaining impartiality. Likewise, the endorsements clause was upheld because it narrowly addresses the state's compelling interest to keep judges from trading political favors, which could lead to the appearance of quid-pro-quo politics.

The leadership clause that prohibits a judge from acting as a political leader was also upheld because a judge or a judicial candidate does not have the fundamental right to lead campaign-donation solicitations, which allows the judge or judicial candidate to assume a powerbroker roll.

The false-statements clause that prohibits a judge from knowingly or recklessly making false statements during a campaign was upheld because the state's compelling interest in preserving public confidence was narrowly met by this canon. Yet the Sixth Circuit did not believe that the appointed judge violated this clause because a common dictionary meaning of "re-elect" supported her word choice.

As for the misleading-statements clause, the Sixth Circuit determined that only a ban on conscious, intentional falsehoods could satisfy strict scrutiny.

Panel: COLE, Chief Judge; SUTTON and COOK, Circuit Judges.

Date of issued opinion: August 24, 2016

Docket numbers: 15-5836/5839/5841

Decided: August 24, 2016

Decision: Affirmed in part, reversed in part, and vacated in part with a remand to the district court for further consideration in part.

Counsel: Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC,
Covington, Kentucky, for Appellants/Cross-Appellees. Mark R. Overstreet, STITES &
HARBISON, PLLC, Frankfort, Kentucky, for Appellants/Cross-Appellees as to all claims except
those asserted by Judge Jones. Christopher Wiest, CHRIS WIEST, AAL, PLLC, Crestview
Hills, Kentucky, for Appellees/Cross-Appellants. ON BRIEF: Jeffrey C. Mando, ADAMS,
STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants/Cross-
Appellees. Mark R. Overstreet, STITES & HARBISON, PLLC, Frankfort, Kentucky, Bethany
A. Breetz, STITES & HARBISON, PLLC, Louisville, Kentucky, for Appellants/Cross-
Appellees as to all claims except those asserted by Judge Jones. Christopher Wiest, CHRIS WIEST, AAL, PLLC, Crestview Hills, Kentucky, Jack S. Gatlin, GATLIN VOELKER, PLLC,
Ft. Mitchell, Kentucky, for Appellees/Cross-Appellants.

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.opn.ca6.uscourts.go...ns.pdf/16a0206p-06.pdf

    Posted By: Mark Cooney @ 10/25/2016 04:48 PM     6th Circuit     Comments (0)  

October 24, 2016
  Sixth Circuit strikes down Memphis's "Beale Street Sweep" policy
Case: Cole v. City of Memphis

Area of law: Constitutional law, fundamental rights, strict scrutiny, intermediate scrutiny, and intrastate travel.

Issue presented: Can a city implement a policy to clear streets after 3 a.m., even when there is no threat to public safety and regardless of why citizens are there?

Brief summary: Cole, an off-duty police officer, was arrested sometime after 3:30 a.m. on Beale Street in Memphis, Tennessee, under a standing police policy to sweep Beale Street of all "after hours" pedestrians regardless of whether there was any threat to public safety. Although all charges were eventually dropped, Cole sued because the police had violated his fundamental right to travel within the state. At trial, the City failed to show a connection between sweeping Beale Street and public safety. On appeal, the Sixth Circuit affirmed, holding that there was no connection between public safety and the arbitrary early-morning sweeps of Beale Street on weekends.

Extended summary: The Beale Street area of Memphis, Tennessee, is a popular entertainment district made up of restaurants, bars, clubs, and other venues. This area is a pedestrian-only zone: no vehicles are permitted on the street, so most traffic is on foot. Under state and local ordinances, pedestrians may carry and drink alcohol on the street and sidewalks when the street is closed to traffic.

Officer Cole, who was not on duty, was on Beale Street and left a dance club at around 3:30 a.m. Based on witness testimony, Cole was drunk and behaving erratically. Fellow Memphis police officers arrested and charged Cole with disorderly conduct, resisting arrest, and vandalism based on a standing policy: the "Beale Street Sweep." Under this policy, Memphis police were to order all "after hours" pedestrians off Beale Street - or arrest them - even if there were no circumstances posing a threat to public safety.

All charges against Cole were later dropped, but not before they caused Cole to lose his second job and be demoted through reassignment from the organized-crime unit to traffic patrol.

Cole and another plaintiff sued in the district court and formed a class action for those who were also arrested under this policy. In their complaint, they alleged that the "Beale Street Sweep" incited violence because the Memphis police became highly aggressive, agitated, and confrontational towards lawful pedestrians. The City admitted to having had this policy in place, but it claimed that it had abandoned the policy some time before Cole was arrested.

The jury found that the "Beale Street Sweep" was the cause for Cole's arrest because the conditions on Beale Street did not pose an imminent threat to public safety when Cole was arrested. Cole was awarded $35,000 in compensatory damages. The district court also granted Cole's motion for injunctive relief: the City of Memphis was enjoined from "engaging in the Beale Street Sweep."

On appeal, the City of Memphis argued that the district court erred when it found that the "Beale Street Sweep" infringed on a fundamental right: intrastate travel. Thus, the City argued, the district court had improperly applied strict scrutiny.

The Sixth Circuit reaffirmed its precedent recognizing that, in general, intrastate travel is a fundamental right. It explained that intrastate travel is so deeply rooted in the nation's history and traditions that it is an implicit liberty. Thus, local travel through public places continues to be a fundamental right, warranting heightened scrutiny. Nevertheless, the Sixth Circuit concluded that intermediate scrutiny, and not strict scrutiny, was the more appropriate standard in this case given the Beale Street Sweep's limited two-block scope and limited two-hour timing on weekends and after special events.

Under intermediate scrutiny, the Sixth Circuit required the City of Memphis to show that the Beale Street Sweep was a narrowly tailored practice to meet the City's significant objectives. The City identified public safety as its significant objective. The Sixth Circuit agreed that public safety is a significant - in fact, a compelling - objective.

Yet the City's argument failed because it couldn't show that the Beale Street Sweep was connected to its stated goal of ensuring public safety. The Sixth Circuit observed that in the district court, the jury found that the sweep occurred without regard to whether there was an imminent or immediate threat to public safety. Instead, the sweep was set at an arbitrary time and had no connection to then-existing conditions on Beale Street. Without the required connection to public safety, the City's policy failed under intermediate scrutiny.

Panel: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.

Date of issued opinion: October 17, 2016

Docket numbers: October 17, 2016

Decided: October 17, 2016

Decision: Affirmed the district-court judgment.

Counsel: ARGUED: J. Michael Fletcher, CITY OF MEMPHIS, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., THE SPENCE LAW FIRM, Memphis, Tennessee, for Appellees. ON BRIEF: J. Michael Fletcher, Zayid A. Saleem, Barbaralette G. Davis, CITY OF MEMPHIS, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., Bryan M. Meredith, E. Lee
Whitwell, THE SPENCE LAW FIRM, Memphis, Tennessee, for Appellees.

Author of opinion: GIBBONS, J., delivered the opinion of the court in which DONALD, J., joined, and GRIFFIN, J., joined in part. GRIFFIN, J. (pp. 16 - 19), delivered a separate opinion concurring in part and dissenting in part.

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

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: www.opn.ca6.uscourts.gov/opinions.pdf/16a0258p-06.pdf

Edited: 10/24/2016 at 02:27 PM by Mark Cooney

    Posted By: Mark Cooney @ 10/24/2016 02:05 PM     6th Circuit     Comments (0)  

  Greg Hargus v. Ferocious and Impetuous, LLC - Third Circuit
Headline: Tortious act of throwing an object from land at an individual on an anchored vessel does not threaten a disruptive effect on maritime commerce and does not invoke federal admiralty law

Area of Law: Federal Admiralty and Maritime Jurisdiction

Issue(s) Presented: Whether throwing a coffee cup from land at an individual's head, who is standing on an anchored vessel, threatens a disruptive effect on maritime commerce and, thus, invokes maritime jurisdiction?

Brief Summary: Plaintiff filed a personal injury suit in District Court when he was hit in the head by a coffee cup while standing on an anchored vessel. Defendant threw the coffee cup from land. The Third Circuit concluded that plaintiff's negligence claim did not invoke maritime jurisdiction because the act did not potentially disrupt maritime commerce.
As established by the United States Constitution and 28 U.S.C §1333(1), "federal district courts have original jurisdiction over any civil case of admiralty or maritime jurisdiction" for the purpose of protecting maritime commerce. These cases must satisfy conditions of both location and of connection with maritime activity in order to be asserted.
The Third Circuit held that the first prong of the admiralty jurisdiction connection test was not met. Analyzing the "potential disruptive effects" the tortious act could have had on maritime commerce, the Third Circuit concluded that throwing an object from land at a person on an anchored vessel did not disrupt the waterway, obstruct free passage of commercial ships, or damage nearby commercial ships. Therefore, the incident did not have a disruptive effect on maritime commerce and failed to satisfy the first prong of the connection test, rendering federal admiralty jurisdiction inappropriate.

Extended Summary: Plaintiff Greg Hargus filed a negligence claim in district court when he was hit in the head by a coffee cup while he was standing on an anchored vessel. The coffee cup was thrown by Defendant Kyle Coleman while he was on land. The Third Circuit found that this tortious incident did not invoke maritime jurisdiction because it did not "potentially disrupt maritime commerce."
As established by the United States Constitution and 28 U.S.C §1333(1), "federal district courts have original jurisdiction over any civil case of admiralty or maritime jurisdiction." The purpose of having maritime jurisdiction is to protect maritime commerce. "To invoke federal admiralty jurisdiction over a tort claim, the claim must satisfy conditions of both location and of connection with maritime commerce."
The Third Circuit focused on the connection aspect of the test. Connection is satisfied by fulfilling a two-part test, requiring the court to first establish that "the general features of the type of incident involved have a potentially disruptive impact on maritime commerce." Referencing other cases, the Third Circuit noted that a disagreement or "physical altercation" between individuals on or around navigable water did not disrupt navigation, because it did not impede the "free passage of commercial ships in navigable waterways." Also, because the injurious event occurred while the vessel was docked, the vessel's crew was not distracted, which could have posed a danger to colliding with other vessels.
The Third Circuit held that the activity did not pose a threat to potentially disrupting maritime commerce since it did not obstruct the free passage of commercial ships, create a risk of collision of vessels, or damage a nearby vessel. Therefore, the first prong of the connection test was not satisfied, barring the application of federal admiralty jurisdiction. The Third Circuit vacated the judgment and remanded with instructions for the District Court to dismiss the case.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153635p.pdf

Panel: Fuentes, Vanaskie, and Restrepo, Circuit Judges

Argument Date: May 19, 2016

Date of Issued Opinion: October 18, 2016

Docket Number: No. 15-3635

Decided: Vacated and remanded

Case Alert Author: Katherine A. Osevala

Counsel: Matthew J. Duensing, Counsel for Appellants.

Author of Opinion: Circuit Judge Vanaskie

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/24/2016 12:50 PM     3rd Circuit     Comments (0)  

  USA v. Kareem Bailey - Third Circuit
Headline: Admission of highly prejudicial video evidence of a murder in connection with drug conspiracy convictions ruled harmless error due to overwhelming amount of other evidence

Area of Law: Federal Rules of Evidence Rule 403, Harmless Error

Issue(s) Presented: Did the district court commit harmful error in admitting highly prejudicial video evidence of a murder, not committed by defendants, to prove defendants' participation in a drug-trafficking organization?

Brief Summary: The four defendants were convicted for conspiracy and involvement in a heroin trafficking organization in Atlantic City, New Jersey. Video and non-video evidence of a murder committed by an individual other than the four defendants were admitted at trial. This evidence was used to prove the firearm and drug trafficking conspiracy charges of the defendants. The Third Circuit applied Federal Rule of Evidence 403, balancing the probative versus prejudicial effect of the evidence and found the non-video evidence of the murder to be admissible. Invoking the Rule 403 balancing for the video evidence of the murder, the Third Circuit concluded the unfair prejudice substantially outweighed the probative value of the video. The Third Circuit concluded the government had sufficiently proven the murder and its connection to the drug conspiracy through wiretapped phone calls and testimony, and therefore, was using the video only to elicit emotion. However, the Third Circuit found the error to be harmless. The Third Circuit reasoned that due to abundant other evidence that established defendants' guilt, it was not highly probable that the admission of the video altered their convictions. The Third Circuit affirmed the defendants' convictions.

Extended Summary: The four defendants were convicted of a number of charges relating to their involvement and conspiracy to participate in a violent heroin trafficking organization in Atlantic City, New Jersey. Defendants made four main arguments on appeal regarding the District Court's admission of evidence during trial and its refusal to grant a mistrial, which the Third Circuit dismissed with hardly any discussion. The Third Circuit only found their argument regarding the erroneous admission of video evidence of a drug-trafficking related murder to be of merit. However, the Third Circuit ruled that due to the abundance of other evidence available to establish the defendants' guilt, the admission of the video evidence was harmless.
Defendants argued that the prejudicial effect of the admission of evidence of a drug-trafficking related murder substantially outweighed the probative value, thus violating Rule 403 of the Federal Rules of Evidence. Rule 403 allows courts to "exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice." The court uses a balancing test to evaluate the need for evidence "against the risk of prejudice to the defendant."
Video and non-video evidence of the murder was admitted at trial. The non-video evidence included testimony and recorded conversations regarding the murder. Because both the murder and the conspiracy charges were related to drug trafficking, the Third Circuit concluded the non-video evidence of the murder was more highly probative than prejudicial.
However, the Third Circuit found the admission of the video evidence of the murder to be highly prejudicial, outweighing its probative value. The video depicted an individual shooting the victim directly in the head outside of a crowded restaurant. The Third Circuit stated that the only value the murder video served was to play on the emotions of the jury. Also, the Third Circuit noted that there was an abundance of other evidence that was used to prove the conspiracy and firearm charges against the defendants. Therefore, video evidence of a murder not committed by the defendants was unnecessary. The Third Circuit concluded the prejudicial value of the video evidence of the murder substantially outweighed its probative value and was erroneously admitted.
Regardless of this error, the Third Circuit found the admission to be a harmless error. "An evidentiary error is harmless if it is highly probable that the error did not contribute to the judgment." The Third Circuit ruled the admission of the video to be harmless error due to the amount of other evidence available to prove the defendants' involvement in the drug-trafficking conspiracy and the firearm charges. Therefore, it was not probable that the admission of the video evidence altered the outcome of defendants' case, making the erroneous admission harmless. Defendants' convictions were affirmed.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/152128p.pdf

Panel: McKee, Chief Judge, Jordan, and Roth, Circuit Judges

Argument Date: April 28, 2016

Date of Issued Opinion: October 18, 2016

Docket Number: No. 15-2276

Decided: Affirmed

Case Alert Author: Katherine A. Osevala

Counsel: John M. Holliday, Gina A. Capuano, William R. Spade, Jr., and James R. Murphy, Counsel for Appellants; Mark E. Coyne and Norman Gross, Counsel for Appellees.

Author of Opinion: Chief Judge McKee

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/24/2016 12:43 PM     3rd Circuit     Comments (0)  

  Sixth Circuit says states, not FCC, control scope of telecommunications services offered by municipality-owned utilities
Case: Tennessee v. FCC

Area of law: Telecommunications and internet services

Issue presented: Is an FCC preemption order valid when it allows a municipality-owned utility to expand telecommunications services beyond what state law permits?

Brief summary: Both Tennessee and North Carolina enacted laws permitting municipality-owned utilities to offer telecommunications services, including internet, to customers within their respective service areas. Two municipally owned utilities petitioned the Federal Communications Commission (FCC) for preemptions allowing them to offer internet services outside their service area. After the FCC granted preemptions, Tennessee and North Carolina sought judicial review of the FCC's orders. The Sixth Circuit reversed both FCC orders, holding that the FCC does not have the authority to stop states from limiting the expansion of services offered by its municipalities. Only the municipality's state has that authority.

Extended summary: Tennessee enacted a law in 1999 that permitted municipality-owned power plants (utilities) to also offer telecommunication services - cable, video, and internet services - to customers within their service areas. This law's geographic limitation, however, bars a municipality from offering telecommunication services outside its service area to surrounding areas.

Chattanooga, Tennessee, operates a power provider, the Electric Power Board (EPB), which offers high-speed broadband internet service to 170,000 residential and commercial customers in Tennessee and Georgia.

Likewise, North Carolina enacted a law in 1971 that permits its municipalities, or their utilities, to provide broadband internet services. And North Carolina also prohibits municipalities from offering these internet services to anyone beyond their municipal boundaries too. The City of Wilson, North Carolina, constructed a fiber-optic internet-backbone network connecting all City-owned facilities. City residents, businesses, as well as educational and medical facilities sought access to this network, and the City responded by expanding its network for these customers by giving them access for fees. The City's services included phone, internet, and cable, and its customers are paying less for these services when compared to the competition.

EPB and the City of Wilson sought preemptions from the FCC; they wanted to offer their services to customers outside their respective service areas. The FCC granted both petitions for preemption. In the FCC's order, the FCC required Tennessee and North Carolina to give their municipalities a choice in undertaking these discretionary actions.

Tennessee petitioned the Sixth Circuit to review the FCC's decision, and North Carolina filed a similar petition in the Fourth Circuit. The cases were consolidated in the Sixth Circuit.

After a thorough analysis of the Telecommunications Act of 1996, the Sixth Circuit reversed the FCC order. The Sixth Circuit reasoned that federal law cannot limit a state's ability "to trump a municipality's exercise of discretion [that is] otherwise permitted by FCC regulations . . . [and federal law] cannot be read to authorize such preemption." As such, the FCC did not have the authority to permit the service-area expansion being sought by EPB and the City of Wilson. The Sixth Circuit concluded that only Tennessee and North Carolina held the authority to expand services within an area.

Panel: ROGERS and WHITE, 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: August 10, 2016

Docket numbers: 15-3291/3555

Decided: August 10, 2016

Decision: FCC order reversed.

Counsel: Joshua S. Turner, WILEY REIN LLP, Washington, D.C., for Petitioner in 15-3291. John F. Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Petitioner in 15-3555. Matthew J. Dunne, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents. ON BRIEF: Joshua S. Turner, Megan L. Brown, WILEY REIN LLP, Washington, D.C., for Petitioner in 15-3291. John F. Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Petitioner in 15-3555. Matthew J. Dunne, Richard K. Welch, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents. James Bradford Ramsay, NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Washington, D.C., for Intervenor National Association of Regulatory Utility Commissioners. James Baller, Sean A. Stokes, Ashley Stelfox, BALLER HERBST STOKES & LIDE, PC, Washington, D.C., James P. Cauley III, Gabriel Du Sablon, CAULEY PRIDGEN, P.A., Wilson, North Carolina, for Intervenor City of Wilson. Frederick L. Hitchcock, Willa B. Kalaidjian, CHAMBLISS, BAHNER & STOPHEL, P.C., Chattanooga, Tennessee, for Intervenor Electric Power Board of Chattanooga. William J. Kirsch, Arlington, Virginia, Andrew L. Brasher, OFFICE OF THE ALABAMA ATTORNEY GENERAL, Montgomery, Alabama, Conor B. Dugan, WARNER NORCROSS & JUDD LLP, Grand Rapids, Michigan, Richard A. Samp, WASHINGTON LEGAL FOUNDATION, Washington, D.C., David Parkhurst, NATIONAL GOVERNORS ASSOCIATION, Washington, D.C., Bartlett Cleland, Jonathan Hauenschild, AMERICAN LEGISLATIVE EXCHANGE COUNCIL, Arlington, Virginia, Ashley Stelfox, BALLER HERBST STOKES & LIDE, PC, Washington, D.C., Mark C. Del Bianco, LAW OFFICE OF MARK C. DEL BIANCO, Kensington, Maryland, Andrew Jay Schwartzman, Eric G. Null, INSTITUTE FOR PUBLIC REPRESENTATION, Washington, D.C., Lani L. Williams, LOCAL GOVERNMENT LAWYER'S ROUNDTABLE, INC., Oconomowoc, Wisconsin, Kimberly Hibbard, NORTH CAROLINA LEAGUE OF MUNICIPALITIES, Raleigh, North Carolina, Markham C. Erickson, STEPTOE & JOHNSON LLP, Washington, D.C., for Amici Curiae.

Author of opinion: ROGERS, J., delivered the opinion of the court in which HOOD, D.J., joined, and WHITE, J., joined in part. WHITE, J., delivered a separate opinion concurring in part and dissenting in part.

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

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: www.opn.ca6.uscourts.gov/opinions.pdf/16a0189p-06.pdf

    Posted By: Mark Cooney @ 10/24/2016 11:59 AM     6th Circuit     Comments (0)  

  Chaille Dubois, et al. v. Atlas Acquisitions LLC -- Fourth Circuit
Buyer Beware When Scheduling Debts in Chapter 13 Bankruptcies

Areas of Law: Bankruptcy Law

Issue Presented: Whether a debt collection agency violates the Fair Debt Collective Practices Act (FDCPA) by filing proofs of claim based on time-barred debts in a Chapter 13 bankruptcy.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that Atlas Acquisitions, LLC, a debt collection agency, did not violate the FDCPA and affirmed the bankruptcy court's dismissal of Appellant's FDCPA claims because although the debt was time-barred, the statute of limitations did not extinguish the debt and the debtor failed to schedule a time-barred debt.

Extended Summary: The Fair Debt Collections Practices Act (FDCPA) was enacted by Congress to eliminate abusive debt collection practices. The statute prohibits debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt," or from using "unfair or unconscionable" methods to collect a debt. When debt collectors are found to be in violation of the FDCPA they are liable for actual damages, statutory damages up to $1,000, and attorney's fees and costs.

This case concerns two debtors, Chaille Dubois and Kimberly Adkins, who secured loans from payday lenders that were eventually sold to a third party debt collector, Atlas Acquisitions, LLC. Adkins owed two debts to Atlas, one for $184.62 and another for $390.00. Dubois owed $135.00 to Atlas based upon a loan that originated with payday lender Iadvance.

In the bankruptcy court, Atlas brought a proof of claim against both Dubois and Adkins for the unpaid debts. A proof of claim is the mechanism by which a creditor can register its interest against the assets of the bankruptcy estate. In bankruptcy court, Adkins and Dubois filed complaints against Atlas alleging that Atlas' claims were essentially stale and violated the FDCPA. The bankruptcy court quickly determined that filing a proof of claim was not a form of debt collection activity under the FDCPA and dismissed all of Dubois' and Adkins' claims.

The United States Court of Appeals for the Fourth Circuit first found that filing a proof of claim was a debt collection activity that could be regulated by the FDCPA because filing a proof of claim is an attempt to collect a debt. Next, the Fourth Circuit held that when the statute of limitations does not extinguish a debt, a time-barred debt falls within the Bankruptcy Code's broad definition of a claim because a time-barred debt still constitutes a "right to payment." The Fourth Circuit held that filing a proof of claim in a Chapter 13 bankruptcy based on a time-barred debt does not violate the FDCPA when the statute of limitations has not extinguished the debt. The Fourth Circuit affirmed the Bankruptcy Court for the District of Maryland's dismissal of Dubois and Adkins' FDCPA claims.

To read the full opinion, click here.

Panel: Judges Diaz, Floyd, and Thacker

Argument Date: May 10, 2016

Date of Issue:
August 25, 2016

Docket Number: No. 15-1945

Decided: August 25, 2016

Case Alert Author: Dena Robinson, Univ. of Maryland Carey School of Law

Counsel: Morgan William Fisher, LAW OFFICES OF MORGAN FISHER LLC,
Annapolis, Maryland, for Appellants. Donald S. Maurice, Jr.,
MAURICE WUTSCHER, LLP, Flemington, New Jersey, for Appellee.
ON BRIEF: Courtney L. Weiner, LAW OFFICES OF MORGAN FISHER LLC,
Washington, D.C., for Appellants. Alan C. Hochheiser, BUCKLEY
KING, LPA, Cleveland, Ohio, for Appellee.

Author of Opinion:
Judge Floyd

Case Alert Supervisor:
Professor Renee Hutchins

    Posted By: Renee Hutchins @ 10/24/2016 10:40 AM     4th Circuit     Comments (0)  

  Amaya v. Power Design, Inc. -- Fourth Circuit
Fourth Circuit Confirms Private Right of Action Under FLSA

Areas of Law: Labor & Employment law

Issue Presented: Whether workers employed under federal contracts expressly incorporating two federal labor statutes (the Davis-Bacon Act and Contract Work Hours and Safety Standards Act) can bring claims for unpaid hourly and overtime wages under the Fair Labor Standards Act.

Brief Summary: The United States Court of Appeals for the Fourth Circuit vacated and remanded the district court's grant of summary judgment of plaintiffs' FLSA claims in favor of defendant Power Design, Inc. The subcontracts at issue were governed by the Davis-Bacon Act (DBA) and the Contract Work Hours and Safety Standards Act (CWHSSA). While neither of those two statutes provided for a private right of action, they also did not bar the plaintiffs' FLSA claims. The Fourth Circuit explained that Congress enacted FLSA knowing it would apply broadly despite overlap with other labor statutes. Because there are no conflicts between the three statutes, plaintiffs were entitled to bring unpaid hourly and overtime wages under FLSA.

Extended Summary: Twenty electrical construction workers sought unpaid hourly and overtime wages for work completed under federally-funded subcontracts. The relevant subcontracts expressly incorporated the DBA and CWHSSA. These two federal statutes regulate different aspects of federal construction contracts. However, the workers sought relief under the FLSA because, unlike the DBA and CWHSSA, the FLSA provides a private right of action in state or federal court. The United States District Court for the District of Maryland held the workers could not "circumvent" the DBA and CWHSSA's lack of private rights of action by bringing a FLSA claim. The trial court therefore granted summary judgment in favor of the defendant.

The Fourth Circuit reviewed the issue de novo. The court began by comparing the justifications for the three statutes and their enforcement mechanisms. The DBA and CWHSSA regulate only certain aspects of federal construction contracts. The U.S. Department of Labor can address violations of the two statutes by withholding contract funds or banning awards of federal contracts for up to three years. In contrast, the FLSA has a broader purpose to "to eliminate, as rapidly as practicable, substandard labor conditions throughout the nation" and "to raise living standards without substantially curtailing employment or earning power." To enforce this statute, individuals can bring suit for FLSA violations directly in state or federal court.

Next, the court reviewed precedent from the United States Supreme Court and the Fourth Circuit that explained the interaction between the FLSA and other labor statutes. This precedent instructed that such statutes are not mutually exclusive. Consequently, the applicable provisions of all statutes can apply insofar as they do not conflict.

Turning to the case before it, the Fourth Circuit held that because Congress intended the FLSA to apply broadly regardless of overlap with other labor statutes and because the three statutes do not conflict, the workers' FLSA claims were not barred by the subcontracts' inclusion of the DBA and CWHSSA. Before examining potential conflicts among the three statutes, the court noted that the language of both the FLSA and the DBA and CWHSSA envisioned that they could all be applied concurrently with one another and other federal labor statutes. For example, when Congress passed the CWHSSA it acknowledged that the FLSA already applied to a lot of the construction industry and therefore many contractors would be subject to "several different legislative standards and enforcement procedures applicable to the same conduct."

Next, the court rejected the defendant's proposed conflicts among the three statutes. First, the Fourth Circuit explained that the DBA and CWHSSA's failure to provide an implied private right of action does not amount to a conflict with the FLSA. The court also found the DBA's wage requirements, which may impose higher payments than the FLSA's federal minimum wage, did not create a conflict. Next, the court concluded that calculating overtime under each statute does not create a statutory inconsistency or conflict. Lastly, the court found there is no conflict between the DBA and FLSA when calculating overtime under the FLSA. The court also rejected the defendant's argument that the actual amount of overtime compensation sought by the workers created a conflict between the DBA and FLSA. This was in part because the purported conflict did not arise from the statutes themselves but from a Department of Labor regulation, and the court would not defer to a regulation that causes a conflict with the FLSA. Finally, determining the overtime compensation the workers are properly owed is an issue of proof for the district court, not a legislative conflict.

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

Panel: Judges Diaz, Floyd, and Thacker

Argument Date: 05/10/2016

Date of Issued Opinion:
8/15/2016

Docket Number: No. 15-1691

Decided: Vacated and remanded by published opinion

Case Alert Author: Annie McGuire, Univ. of Maryland Carey School of Law

Counsel:
Argued: Daniel Adlai Katz, THE LAW OFFICES OF GARY M. GILBERT &
ASSOCIATES, P.C., Silver Spring, Maryland, for Appellants. Leslie A. Stout-Tabackman, JACKSON LEWIS P.C., Reston, Virginia, for Appellee. Erin Michelle Mohan, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. On Brief: Lucy Brierly Bansal, THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, Maryland; Virginia Rae Diamond, ASHCRAFT & GEREL, LLP, Alexandria, Virginia, for Appellants. Paul DeCamp, Jeremy S. Schneider, JACKSON LEWIS P.C., Reston, Virginia, for Appellee. M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, William C. Lesser, Deputy Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. Maurice Baskin, LITTLER MENDELSON, P.C., Washington, D.C., for Amicus Associated Builders and Contractors, Inc.

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/24/2016 10:14 AM     4th Circuit     Comments (0)  

October 17, 2016
  Mack v. Warden Loretto FCI - Third Circuit
Headline: Third Circuit Finds That Inmate's Oral Grievance Of Anti-Muslim Harassment Is Constitutionally Protected Under First Amendment and Indirect Pressure May Constitute a Substantial Burden on Religious Expression under Religious Freedom and Restoration Act

Area of Law: First Amendment Retaliation, Religious Freedom and Restoration Act

Issue(s) Presented: (1) Whether an inmate's oral grievance to prison officials can constitute protected activity under the Constitution; (2) Whether RFRA prohibits individual conduct that substantially burdens religious exercise; and (3) Whether RFRA provides for monetary relief from an official sued in his individual capacity.

Brief Summary: Plaintiff, an inmate and practicing Muslim at a federal correctional institution in Pennsylvania, filed a pro se lawsuit against various correctional officers for First Amendment retaliation and for violations of the Religious Freedom and Restoration Act. Plaintiff argued that he was fired from his commissary work assignment after he complained about officers' anti-Muslim conduct. He also claimed that one officer's anti-Muslim comments and conduct created a hostile work environment such that he was afraid to pray at work. He complained orally and in writing after the harassment, after the termination, and after receiving an unsatisfactory explanation for the termination. The Third Circuit found that Plaintiff's oral complaint was constitutionally protected and certain Defendants were not entitled to qualified immunity. The Court also found that the RFRA was the appropriate vehicle for relief to challenge a government official's individual conduct that indirectly coerced Plaintiff to betray his religious exercise.

Extended Summary: Plaintiff worked for pay in the prison commissary. Plaintiff was a practicing Muslim and was provided certain religious accommodations at work. Defendants were assigned to supervise the commissary. One officer slapped Plaintiff hard on the back, tagging him with an "I love bacon" sticker. He also made offensives comments about Muslims and told Plaintiff, "he'd be looking for a new job soon." Another officer stood by and laughed. Plaintiff claimed that the officers' conduct created a tense working environment, and that as a result Plaintiff was afraid to pray at work.

Plaintiff spoke to the officers' supervisor to complain about the anti-Muslim conduct and statements. Plaintiff was fired one week later for "bringing other inmates' commissary slips in," which Plaintiff denied. He eventually filed an inmate request-to-staff form seeking explanation in writing for why he was terminated. He orally complained to the Warden and then filed a formal grievance with the Deputy Warden. This federal lawsuit followed after his grievance was rejected.

With regard to the First Amendment retaliation claim, the Third Circuit affirmed dismissal of claims against certain Defendants because they were not involved until after Plaintiff was terminated. The Court vacated the dismissal and remanded for further proceeding with regard to the remaining Defendants. The Court found that Plaintiff properly exhausted his administrative remedies, alerting prison officials to his principal allegation, as required by the Prison Litigation Reform Act. The Court also found that Plaintiff's oral complaint was constitutionally protected because it sufficiently and timely put prison officials on notice that he sought redress, was conveyed in a reasonable manner, and concerned conduct that the prison itself prohibited. The Court additionally noted that the facility encouraged inmates to communicate their concerns orally and informally before filing a grievance. Lastly, the Court found that Defendants were not entitled to qualified immunity because a reasonable official in the officers' position should have known that retaliating against Plaintiff for exercising his right to petition was unlawful, especially if the prison encouraged its inmates to communicate their concerns orally.

With regard to the Religious Freedom and Restoration Act ("RFRA") claim, the Third Circuit vacated dismissal and remanded for further proceedings. The Court held that RFRA is the appropriate vehicle for relief to challenge a government official's individual conduct, regardless of whether that conduct was undertaken pursuant to an official rule or policy. The Court also held that RFRA provides for monetary relief when officers act unlawfully because monetary damages would be consistent with the purpose of RFRA to provide "appropriate relief" when religious liberty is substantially burden by government officials. Lastly, the Court held that a burden could be substantial even if it does not involved direct coercion to betray one's religious beliefs. Allegations of indirect pressure substantially burdening religious exercise are sufficient to survive a motion to dismiss.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/142738p.pdf

Panel: McKee, Fuentes, and Roth, Circuit Judges

Argument Date: April 18, 2016

Date of Issued Opinion: October 11, 2016

Docket Number: 14-2738

Decided: Affirmed in part, vacated in part and remanded

Case Alert Author: Jasmine M.Williams

Counsel: Sean E. Andrussier, Esq. and Duke University Law Students, John Bailey, Anne Showalter, Russell Taylor, Attorneys for Appellant; Jennifer R. Andrade, Esq., Jane M. Dattilo, Esq., and Rebecca R. Haywood, Esq., Office of United States Attorney, Attorneys for Appellees

Author of Opinion: Circuit Judge Fuentes

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/17/2016 09:49 AM     3rd Circuit     Comments (0)  

October 13, 2016
  TCA Television Corp. v. McCollum - Second Circuit
Headline: Second Circuit Holds that Broadway's "Hand of God" Appropriation of "Who's on First?" Routine Was Not Fair Use, But Affirms Dismissal of Copyright Infringement Action on Alternative Invalidity Ground.

Areas of Law: Intellectual Property; Copyright Law

Issue(s) Presented: Whether the defendants' verbatim use of a portion of Abbot and Costello's iconic comedy routine "Who's on First?" in the Broadway produced play "Hand of God" qualified as a non-infringing fair use. Whether plaintiffs' had a valid copyright on "Who's on First?"

Brief Summary: In light of the unauthorized use by defendants, the playwright and producers of the dark comedic Broadway play "Hand of God" of a verbatim portion of the iconic comedy sketch "Who's on First?," the successors in interest to the estates of William "Bud" Abbott and Lou Costello - plaintiffs herein - commenced an action for copyright infringement in the Southern District of New York, claiming both federal and common law copyright infringement. Upon defendants' Rule 12(b)(6) motion, the district court dismissed the complaint determining that, as a matter of law, defendants' use of the routine constituted a non-infringing fair use of the material. On plaintiffs appeal from this ruling, the Second Circuit concluded that defendants' unauthorized appropriation of "Who's on First?" was not fair use, but, nevertheless, affirmed the judgment below finding that plaintiffs had failed to plead a valid copyright interest. Judgment of dismissal in favor of defendants affirmed.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...2f0f4973f6a/1/hilite/

Extended Summary:
Plaintiffs, successors-in-interest to the estates of William "Bud" Abbott and Lou Costello (the "Artists"), claim to be owners of the copyright to the comedy routine in issue here, "Who's on First?" (also the "Routine") - a treasured piece of American entertainment history, derived from the humorous misunderstandings which take place when a roster of a baseball team is filled with oddly named players such as "Who," "What," and "I Don't Know." "Who's on First?" was first performed in the late 1930s on a live radio broadcast, and was published, for purposes of federal copyright law, when Abbott and Costello performed a version of it in their first motion picture, "One Night in the Tropics ("Tropics") produced by Universal Pictures Company, Inc. ("UPC"). Abbott's and Costello's work with UPC was pursuant to contractual agreements including one executed in November 1940 (the "November Agreement,") days before the release of Tropics which encompassed a multi-year/multi-picture bargain. The contract gave UPC the right to use Abbott's and Costello's materials and routines in connection with any photoplay in which the Artists appeared. However, the Artists expressly reserved the right to use materials and routines created by them, without the assistance of UPC writers, on the radio and in personal appearances. Additionally, in November 1940, UPC registered a copyright for Tropics with the United States Copyright Office, which it timely renewed in December 1967.

Thereafter, in 1945, Abbott and Costello performed an expanded version of "Who's on First?" in another UPC movie, "The Naughty Nineties." That expanded version, while maintaining the core of the Routine - with "Who" on first base, "What" on second, and "I Don't Know" on third - , further included several new players. Here too, UPC registered a copyright for "The Naughty Nineties," and timely renewed it in 1972. Independently, in April 1944, Abbott and Costello also registered with the Copyright Office a work entitled "Abbott and Costello Baseball Routine," indicating that it had been published in March 1944 in "Soldier Shows." This work, however, was never renewed, and entered the public domain in 1972. Finally, in March 1984, a quitclaim agreement (the "Quitclaim") was entered into between Universal Pictures ("Universal") - successor-in-interest of UPC - and Abbott & Costello Enterprises ("A&C), a partnership formed by the heirs of Abbott and Costello, under which all of Universal's rights, title and interest in the Routine were granted by Universal to A&C. Thereafter, A&C dissolved in 1992, with 50% of its assets being transferred to TCA Television Corporation, a California entity owned by Lou Costello's heirs; and the remaining 50% evenly to Bud Abbot's heirs and later transferred to the remaining plaintiffs in the present action.

The defendants include the author and producers of the successful off-Broadway play "Hand to God," a dark comedy set in small-town Texas, in which the main character, a young man, communicates through a hand puppet, which becomes his evil persona. After success off-Broadway, in the spring of 2015 the play opened for previews on Broadway, incorporating, without license or permission, part of the Routine in one of its key scenes. In that scene, which takes place approximately 15 minutes into the play, "Jason," the lead character, in an attempt to impress "Jessica," his romantic interest, performs almost verbatim, a little over a minute of "Who's on First?" At the end of Jason's performance, Jessica asks whether Jason had come up with the routine by himself. Jason's dishonest answer in the affirmative inevitably induces audience laughter, given the familiarity of this iconic routine.

After learning about the unauthorized use of the Routine through press coverage and online promotional materials, and receiving no response to a letter to cease and desist, plaintiffs filed the underlying action in June 2015 in the United States District Court for the Southern District of New York, claiming federal and common law copyright infringement. Defendants moved to dismiss advancing that: plaintiffs did not hold a valid copyright; or, in any event the Routine was in the public domain; and "Hand to God's incorporation of the Routine was sufficiently transformative to qualify as a permissible fair use, not prohibited infringement. The district court granted defendants' motion to dismiss concluding that defendants' use of the Routine in "Hand to God" was a highly transformative and non-infringing fair use. The instant appeal followed.

The Second Circuit's de novo review of the dismissal found error in the district court's finding of fair use as a matter of law. Citing earlier decisions, the court recognized the well-established principle that some opportunity for fair use of copyrighted materials is necessary to promote the Constitutional purpose of progress in science and art. The nonexclusive factors for a clearly established fair use defense, the court noted, have been codified under 17 U.S.C. §107, as follows: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work. These factors, the court noted, must be viewed collectively, with their results weighed together.

The Second Circuit found that all four statutory factors weighed in favor of plaintiffs and against a defense of fair use. First, the court found that the defendants' use of the Routine did not appear to fit within any of the statutory categories identified as "most appropriate" for a purpose or character finding indicative of fair use - criticism, comment, news reporting, teaching, scholarship, and research. The court concluded that the district court's reasoning was flawed by identifying only a general artistic and critical purpose and character of the play as a "darkly comedic critique" of the social norms in a small religious town, but failing to explain how defendants' extensive copying was necessary to accomplish such purpose, or how the character of the Routine was transformed by defendants' use. The court noted that challenged works which satisfied the transformative purpose standard are those where a defendant's use of a work has so "heavily obscured and altered" the original work as to make it "barely recognizable" within the new work. In this case, the court found defendants' use of the Routine fell short of this standard, as the used portion was included unaltered. Therefore, the court concluded, such use could not be held to be transformative.

Even when such unaltered uses could be considered fair use when they bore no relationship to the original work, a justification is, the court noted, nevertheless necessary to qualify for a fair use defense. In this case, defendants used the original work for the same central purpose for which it was created - a comedy. Thus, the court found that defendants fell short of satisfying the justification threshold inasmuch as more than the Routine's ability to capture audience attention was necessary to provide a proper justification for defendants' extensive copying of it. Additionally, the court found that defendants' extensive use of the Routine further qualified as commercial exploitation weighing strongly against fair use.

As to the nature of the copyrighted work, the court also found it weighed in favor of plaintiffs herein, inasmuch as the Routine, being an original comedy sketch created for public entertainment, lay at the heart of copyright's intended protection. Moreover, the court rejected defendants' justification that they needed to use an instantly recognizable "cultural" touchstone in the relevant scene. Likewise, looking to the amount and substantiality of the portion of the appropriated material used, the court found that it weighed strongly in favor of plaintiffs because, although it took less than two minutes to perform, it nevertheless constituted the heart of the original work, by revealing the singular joke underlying the entire Routine. Finally, the court found that the district court had erred in concluding that the play's use of the Routine could not reasonably be expected to usurp the market for Abbott and Costello's original performance because the district court had failed to consider the challenged use's "impact on potential licensing revenues for traditional, reasonable, or likely to be developed markets." Since plaintiffs had alleged the existence of a traditional and active derivative market for licensing the Routine, the court also found this factor weighed in plaintiffs' favor.

Notwithstanding the foregoing analysis, the court concluded that the complaint must nevertheless be dismissed because plaintiffs plausibly failed to plead ownership of a valid copyright in the Routine. The court found that contractual agreements with UPC clearly expressed the parties' intent for Abbott and Costello to merely license the use of, and not to assign copyrights in, their existing comedy routines for use in UPC movies in which the Artists appeared. The court found the contract language to be clear and unambiguous, and concluded that Abbott and Costello furnished UPC with their routines for a limited purpose, their use in any movies in which the Artists appeared under the respective agreements. The court also rejected plaintiffs' argument that the Routine was a work made for hire and, thus, should survive by virtue of UPC's timely renewal of the registration of Tropics, finding that the Routine was prepared several years prior to the contracts, and therefore it could not be said to have been made at UPC's instance and expense.

Finally, the Court was not persuaded by plaintiffs' alternative argument under the merger doctrine that, because so much of the Routine was used in the movies, the material "merged" with them making part of the whole protected by UPC's statutory registration and the timely renewal of the copyrights for movies using the Routine. The Court noted that the Routine had been prepared and existed on its own for some years before it was performed in Tropics, and that it had been performed independently from the films thousands of times on the radio and elsewhere. Therefore, the Court concluded that this merger argument must fail.

In conclusion, although rejecting the defendants' fair use defense, the Court nevertheless affirmed the dismissal of the complaint finding it warranted by plaintiffs' failure plausibly to plead ownership of a valid copyright.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...2f0f4973f6a/1/hilite/

Panel: Circuit Judges Jacobs, Calabresi and Raggi

Argument Date: 06/23/2016


Date of Issued Opinion: 10/11/2016

Docket Number: 16-134-cv

Decided: Affirmed

Case Alert Author: Gloria Mejia-Repp

Counsel:
Jonathan D. Reichman, Kenyon & Kenyon LLP, New York, New York, for Plaintiffs-Appellants; Mark J. Lawless, Law Office of Mark J. Lawless, New York, New York, for Defendants-Appellees.

Author of Opinion:
Judge Reena Raggi

Case Alert Circuit Supervisor: Professor Elyse S. Diamond

    Posted By: Elyse Diamond @ 10/13/2016 07:32 AM     2nd Circuit     Comments (0)  

October 11, 2016
  PHH Corp. v. Consumer Finance Protection Bureau
Headline: D.C. Circuit says single-director structure of independent Consumer Finance Protection Bureau violates Article II of the Constitution.

Area of Law: Separation of Powers; Article II; Constitutional Law

Issue Presented: Whether, under Article II of the Constitution, Congress can create an independent agency headed by a single director, removable by the President only for cause.

Summary: The Consumer Finance Protection Bureau (CFPB), an independent agency with a single director created by the Dodd-Frank Act, is charged with unilateral enforcement of nineteen federal consumer protection statutes. The single director decides what rules to issue and how, when, and against whom to enforce the laws and is by statute removable by the President only for cause. Petitioner PHH Corp., a mortgage lender subject to CFPB enforcement action, challenged CFPB's status as an independent agency governed by a single director under Article II of the Constitution. PHH Corp. argued that either the agency's director must be removable at will by the President, or, if structured as an independent agency, the CFPB must be restructured as a multi-director commission.

The D.C. Circuit agreed with PHH Corp. that the CFPB's structure is unconstitutional. The court noted that independent agencies have a tenuous position in our separation of powers structure and represent a departure from the fundamental understanding that Article II grants the President power to supervise, direct, and remove executive officers. The court noted that Humphrey's Executor v. United States, 295 U.S. 602 (1935), which upheld independent agencies against constitutional challenge, did so on the understanding that they were comprised of nonpartisan bodies of experts. At that time and ever since, with only "anomalous" exceptions, independent agencies have operated with multi-member governance structures. Looking to this consistent history and settled practice, as well as the massive unilateral power possessed by the CFPB director to administer and oversee enforcement of nineteen laws, the court found great risk of arbitrary decision-making and abuse of power in the CFPB as presently constituted. The court was not persuaded that the director's advisory board mitigated any risk because the director is free to disregard the advisory board's advice. The court acknowledged that, in extreme circumstances, a supermajority of the Financial Stability Oversight Council has veto power over CFPB regulations but found that the Council's limited role did not suffice to make the CFPB the functional equivalent of a multi-member agency.

Turning to remedy, the D.C. Circuit followed the Supreme Court's lead in severing the provision permitting removal of the director only for cause from the rest of the statute. With the for-cause provision thus excised, the court held that the President has authority to remove the director at will and to supervise and give direction to the director, thus bringing the CFPB in line with regular executive agencies within the executive chain of command. The court observed that, while another potential cure for the constitutional infirmity might be to turn an independent CFPB into a multi-member commission, the "editorial freedom" making such a change would require was for Congress, not the judicial branch.

Because its severability determination left the CFPB intact, the court then proceeded to address and resolve PHH Corp.'s statutory arguments, ultimately agreeing with PHH Corp., vacating the CFPB's order, and remanding for reconsideration.

Judge Randolph concurred to raise an additional constitutional infirmity, noting that the ALJ who presided over PHH Corp.'s initial hearing was an "inferior officer" under Article II who had to be appointed by the President, courts of law, or heads of departments and was not so appointed.

Judge Henderson concurred in part and dissented in part on the basis that the success of PHH Corp.'s statutory arguments made resolution of the underlying constitutional question unnecessary.

For the full text of this decision, please visit https://www.cadc.uscourts.gov/internet/opinions.nsf/AAC6BFFC4C42614C852580490053C38B/$file/15-1177-1640101.pdf.


Panel: Circuit Judges Henderson and Kavanaugh and Senior Circuit Judge Randolph

Argument Date: April 12, 2016

Date of Issued Opinion: October 11, 2016

Docket Number: No. 15-1177

Decided: Vacated and remanded

Case Alert Author: Elizabeth Earle Beske

Counsel: Theodore B. Olson, Helgi C. Walter, Mitchel H. Kider, David M. Souders, Thomas M. Hefferon, and William M. Jay for Petitioners. Lawrence DeMille-Wagman, Meredith Fuchs, and John R. Coleman for Respondent.

Author of Opinion: Circuit Judge Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske & Ripple Weistling

    Posted By: Ripple Weistling @ 10/11/2016 01:54 PM     DC Circuit     Comments (0)  

October 10, 2016
  United States of America v. Michael Free - Third Circuit
Headline: Sentencing guidelines allow harm enhancement only for economic harm inflicted or intended by bankruptcy fraudster

Area of Law: Federal Sentencing

Issues Presented: How is "loss" calculated under the Federal Sentencing Guidelines when a defendant commits bankruptcy fraud, but all of his creditors receive payment in full?

Brief Summary: Michael Free filed for bankruptcy, despite having more than sufficient assets to pay his debts. Thereafter, Free hid assets worth hundreds of thousands of dollars from the Bankruptcy Court. Free's actions eventually led to criminal charges and convictions for four counts of bankruptcy fraud. The Third Circuit upheld his conviction even though the creditors were paid in full because of overwhelming evidence that Free concealed assets and lied repeatedly to the trustee and the court. The Third Circuit vacated his sentence because it was enhanced based on the estimated value of the assets Free concealed and the amount of debt he sought to discharge, rather than on any economic loss he inflicted or intended to inflict on his creditors. It remanded for resentencing and directed the lower court to consider sentencing under this standard but noted that Free's manifest disrespect for the judicial system could merit an upward departure from the Guidelines.

Extended Summary: In 2010, Michael Free filed for bankruptcy, despite having more than sufficient assets to pay his debts. Thereafter, Free hid assets, mostly rare WW II-era guns, worth hundreds of thousands of dollars from the Bankruptcy Court. Free's actions eventually led to criminal charges and convictions for multiple counts of bankruptcy fraud. The Court noted that "[t]he oddity of this entire situation is best summarized by the fact that, despite all of Free's prevarications, his creditors received 100 cents on the dollar from Free's bankruptcy estate."

The Federal Sentencing Guidelines increase a bankruptcy fraudster's recommended sentence based on the amount of loss he causes, or intends to cause, to his victims. At Free's sentencing hearing, the District Court therefore needed to make a determination as to the amount of loss caused or intended to be caused by Free's crimes. Instead, the District Court chose to treat the estimated value of the assets that Free concealed from the Bankruptcy Court and the amount of debt sought to be discharged as the relevant "loss" under the Guidelines. This resulted in a Guidelines range of 21 - 27 months' imprisonment. The District Court ultimately sentenced Free to 24 months' incarceration on each count, to run concurrently, and to a term of supervised release of three years.

The Third Circuit found the evidence of Free's guilt indisputable and rejected his argument that he did not commit fraud because his creditors received full payment. Free was properly convicted of four counts under 18 U.S.C. § 157. "One commits bankruptcy fraud under § 157 by (1) devising a scheme to defraud, and (2) filing a document in a bankruptcy proceeding or making [a] false or fraudulent statement in relation to the bankruptcy proceeding for the purpose of executing or concealing the fraudulent scheme," and there was ample evidence from which a reasonable jury could have concluded that Free did precisely that. Moreover, the Court clarified that no fraudulent losses need to occur for a debtor to violate § 157; "[f]iling itself is the forbidden act." Thus, the Court found the evidence that Free filed fraudulent documents with the Bankruptcy Court to be overwhelming. Finally, the Court stated counts V and VI involved violations of 18 U.S.C. §§ 152(1) and 152(2), noting that "[a] debtor violates § 152(1) by failing to "reveal the existence of his assets to the United States Trustee,"' and § 152(2) outlaws "knowingly and fraudulently mak[ing] a false oath" in relation to a bankruptcy case. The Court again found the evidence of Free's guilt to be irrefutable.

Second, the Third Circuit vacated the sentence, holding that the District Court erred in its calculation of "loss" under the Sentencing Guidelines. The Court concluded that treating the value of Free's concealed assets as "loss," was out-of-step with the structure of the Guidelines and inconsistent with its own precedent. Because the District Court did not clearly find whether Free intended to deprive his creditors of this, or of any amount, the enhancement was not warranted. Instead, the Third Circuit instructed the District Court to determine whether Free intended to cause a loss to his creditors, or what he sought to gain from committing the crime.

The Third Circuit acknowledged the District Court's view that it is "sensible to punish fraudsters who conceal assets of greater value more harshly than defendants who conceal assets of lesser value." In fact, the Court explained that in the vast majority of cases, the loss calculation will have precisely this effect because, "generally speaking, the reason defendants conceal assets in bankruptcy is to benefit themselves at the expense of their creditors." Nonetheless, the Third Circuit found that the District Court failed to make explicit factual findings as to whether Free had such an intent: "While we are sympathetic with the District Court's desire to punish Free in a manner commensurate with his disrespect for the judiciary, we nonetheless conclude that inflating Free's loss figure based on a theory of abstract harm to the judiciary is not an appropriate way to calibrate his sentence under the Guidelines."

In conclusion, the Third Circuit added that even if the District Court finds no such intended loss, Free may not receive a lower sentence on remand. The Court explained Free's repeated lying to the Bankruptcy Court and his manifest disrespect for the judicial system could merit an upward departure or variance from the Guidelines, urging the District Court to examine these issues to determine an appropriate sentence consistent with the statutory sentencing factors and the applicable Sentencing Guidelines. Accordingly, the Third Circuit vacated the District Court's judgment and remanded the case for resentencing.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/152939p.pdf

Panel: Fuentes, Shwartz, and Restrepo, Circuit Judges

Argument Date: July 12, 2016

Date of Issued Opinion: October 6, 2016

Docket Number: No. 15-2939

Decided: Vacated and remanded

Case Alert Author: Brooke Hutchins

Counsel: Martin A. Dietz, Esquire, for Appellant; Rebecca R. Haywood, Esquire, for Appellee.

Author of Opinion: Circuit Judge Fuentes

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/10/2016 12:56 PM     3rd Circuit     Comments (0)  

  Bobbi-Jo Smiley; Amber Blow; Kelsey Turner v. E.I. DuPont de Nemours and Company; Adecco USA, Inc. - Third Circuit
Headline: Third Circuit Holds Regular Paid Lunch Does Not Offset Required Overtime Pay

Area of Law: Fair Labor Standards Act

Issues Presented: Can DuPont offset overtime pay for employees by using the paid lunch time DuPont voluntarily provides to employees?

Brief Summary:

Employees working at DuPont's manufacturing plant in Towanda, PA bring a putative collective action and class action against DuPont seeking overtime compensation for before and after their shifts. DuPont voluntary provided these employees a thirty minute paid break and argued that break could offset the work employees were doing before and after their shifts. The Third Circuit reviewed the FLSA and determined that the lunch break could not offset overtime work because the employees were receiving it at their regular pay and not at a premium rate. The Third Circuit reversed and remanded the District Court's grant of summary judgment in favor of DuPont.

Extended Summary:

Bobbi-Jo Smiley, Amber Blow, and Kelsey Turner filed a putative collective action and class action against DuPont seeking overtime compensation for time before and after their shifts. 160 workers opted in to the class action. Appellants worked twelve-hour shifts at DuPont's manufacturing plant in Towanda, PA. DuPont directly employed Smiley and Blow, while Adecco employed Turner as an hourly contract employee. Employees were required to be onsite before and after their shifts to "don and doff" uniforms and protective gear. They were also required to participate in "shift relief" which involved sharing of information and status updates. The time spent on these two activities ranged from thirty to sixty minutes a day.

Although the FLSA does not require compensation for meal breaks, DuPont chose to compensate employees for one thirty minute paid lunch break, in addition to two non-consecutive thirty minute breaks. The paid break time always exceeded the amount of time Plaintiffs spent pre and post shift. Plaintiffs sought to recover overtime compensation for time spent donning and doffing their uniforms and protective gear and performing shift relief. DuPont argued that it could offset the overtime compensation with the paid breaks which they voluntarily provided. The District Court agreed holding that the FLSA allowed DuPont to use paid non-work time to offset the required overtime and dismissed the lawsuit entirely.

The Third Circuit first reviewed the statutory language of the FLSA. First, the Court determined that the voluntary paid lunch that DuPont provided is considered regular pay because the employees are compensated at a regular rate and not a premium rate. The Court looked to the definition of "hours worked" and permissible offsetting under the FLSA and determined that nothing in the FLSA authorizes the type of offsetting where an employer seeks to credit compensation that is included in calculating an employee's regular rate of pay against its overtime liability. The FLSA only provides for an offset of an employer's overtime liability using other compensation not already included in the regular rate and paid at a premium rate.

The FLSA does not require employers to treat meal breaks as hours worked, but it does not prohibit them from doing so. In this case, DuPont voluntary provided paid breaks and compensated employees with regular pay which can not offset overtime pay under the FLSA. The Third Circuit reversed and remanded.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/144583p.pdf

Panel: Vanaskie, Krause and Rendell, Circuit Judges

Argument Date: July 14, 2016

Date of Issued Opinion: October 7, 2016

Docket Number: No. 14-4583

Decided: Reversed and Remanded

Case Alert Author: Jessica Wood

Counsel:

Thomas M. Marrone, Esq., Patricia V. Pierce, Esq., Counsel for Appellants Bobbi-Jo Smiley, Amber Blow, and Kelsey Turner

David S. Fryman, Esq., Amy L. Bashore, Esq., Counsel for Appellee E.I. du Pont de Nemours and Company

A. Patricia Diulus-Myers, Eric R. Magnus, Counsel for Appellee Adecco USA, Inc.

Rachel Goldberg, Esq., Counsel for Amicus Curiae, Secretary, United States Department of Labor

Author of Opinion: Rendell, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/10/2016 11:15 AM     3rd Circuit     Comments (0)  

  Sixth Circuit: WebWatcher software may violate Wiretap Act and unlawfully invade privacy
Case: Luis v. Zang

Area of law: Wiretap acts and privacy law

Issue presented: Does a software manufacturer violate privacy rights or federal/Ohio wiretap laws, which ban the monitoring and contemporaneous interception of communications, when the manufacturer's surreptitiously installed software transmits a home computer's electronic communications to the manufacturer's servers, where it is stored until the software user retrieves the communications later?

Brief summary: Joseph Zang, concerned about his wife's online chatroom participation, installed WebWatcher on his wife's computer without her knowledge or consent. He used this software to monitor her correspondences with a man she'd never met but contacted daily. He then used the WebWatcher contact records as leverage to secure more favorable divorce terms a year later. Javier Luis, who had regularly corresponded with Zang's wife through chatrooms, sued Zang and WebWatcher's manufacturer, Awareness Technologies, after learning of the disclosure of his private, personal communications with Zang's wife. Luis alleged that Awareness and Zang, through the use of WebWatcher, violated his privacy rights and also wiretap laws when WebWatcher intercepted his computer's electronic communications meant for Zang's wife and sent them to Awareness's servers for Zang to retrieve and read later.

The Sixth Circuit held that Luis had properly pleaded his claims - federal Wiretap Act violations, Ohio Wiretap Act violations, and Ohio common-law violations including privacy violations - against Awareness Technologies, and that the trial court's dismissal of the case was improper.

Extended summary: During Catherine Zang's marriage to Joseph Zang, she participated in an online chatroom where she "met" Javier Luis. They developed a platonic relationship and contacted each other at least daily, but they never met in person. Concerned with his wife's online relationship with Luis, Zang purchased and installed Webwatcher on Catherine's computer without her knowledge or consent. Webwatcher, manufactured by Awareness Technologies, intercepts electronic communications, such as emails or instant messages, and in near real time forwards them to Awareness's servers for storage and later retrieval. After collecting his wife's communications with Javier for months, Zang used them as leverage to get better divorce terms from his wife.

Luis sued Zang, Awareness, and others after learning of this. Luis settled with all but Awareness. In his complaint against Awareness, Luis alleged that Awareness knew or should have known that purchasers of its software, WebWatcher, would use it for illegal purposes. Thus, he asserted that Awareness violated his privacy as well as the federal Wiretap Act, the Ohio Wiretap Act, and Ohio common law.

During the case, a magistrate judge was directed to prepare a Report and Recommendation evaluating Awareness's arguments that it had not intercepted Catherine's communications and that it could not be held liable simply for manufacturing software that a purchaser used to violate federal and state laws. The district court adopted the Report and Recommendations and dismissed the claims against Awareness.

The Sixth Circuit reversed, holding that Luis had properly pleaded his claims against Awareness. The Sixth Circuit found that WebWatcher does intercept communications, as defined under the federal Wiretap Act, and acquires communications in a manner that is contemporaneous with their transmissions. Consequently, the allegations could support an eventual finding that Awareness violated the federal Wiretap Act. And the Sixth Circuit found that Luis sufficiently pleaded and argued that Awareness manufactured and sold wiretapping equipment in violation of federal law. Luis could establish that there was an intentional interception of wire, oral, or electronic communications by WebWatcher and Awareness. As such, Luis could potentially show that Awareness violated the Ohio Wiretap Act and Ohio common law. Last, Luis had properly pleaded that the WebWatcher software invaded his privacy when Zang installed it on his wife's computer and used the software's output to monitor his personal, private communications with Catherine.

Thus, the Sixth Circuit held that the trial court's dismissal of all claims was erroneous, and it remanded the case to the district court for reconsideration. The Sixth Circuit added, however, that no conclusions should be drawn on the ultimate outcome of this case, noting that Awareness might still prevail on a motion for summary judgment or at trial.

Panel: MERRITT, BATCHELDER, and GILMAN, Circuit Judges.

Date of issued opinion: August 16, 2016

Docket numbers: 14-3601

Decided: August 16, 2016

Decision: The judgment of the district court is therefore REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

Counsel: Clayton L. Wiggins, VANDERBILT APPELLATE LITIGATION CLINIC,
Nashville, Tennessee, for Appellant. Bernard W. Wharton, MCCASLIN, IMBUS &
MCCASLIN, Cincinnati, Ohio, for Appellee. ON BRIEF: Clayton L. Wiggins, Alistair E.
Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for
Appellant. Bernard W. Wharton, MCCASLIN, IMBUS & MCCASLIN, Cincinnati, Ohio, for
Appellee. Javier Luis, Tampa, Florida, pro se.

Author of opinion: GILMAN, J., delivered the opinion of the court in which MERRITT, J., joined. BATCHELDER, J. (pp. 33 - 37), delivered a separate dissenting opinion.

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.opn.ca6.uscourts.go...ns.pdf/16a0196p-06.pdf

    Posted By: Mark Cooney @ 10/10/2016 10:30 AM     6th Circuit     Comments (0)  

October 7, 2016
  Elliott J. Schuchardt v. President of the United States - Third Circuit
Headline: Lawyer has standing to challenge National Security Administration program he claimed collected full user communication content from several large U.S. internet providers

Area of Law: National Security

Issue(s) Presented: Does an individual have standing to challenge surveillance authorized under Section 702 of the Foreign Intelligence Surveillance Act?

Brief Summary: Elliott Schuchardt is an attorney who uses email services provided by Google and Yahoo as well as other services on the world wide web. In 2013, confidential documents were leaked that showed the National Security Administration operated an electronic surveillance program called PRISM. The program purportedly collected directly from the servers the full content of user communications exchanged using services provided by several large U.S. companies. The Third Circuit reversed the District Court's ruling that Schuchardt lacked standing under Article III to challenge the surveillance. The Third Circuit found that Schuchardt's allegations stated a particularized injury and that the allegations plead in his second amended complaint were entitled to a presumption of truth.

Extended Summary: The former secretary of the National Security Administration (NSA), Eric Snowden, leaked classified documents to journalists writing for the Washington Post and the Guardian. The documents noted the existence of an electronic surveillance program operated under Section 702 of the Foreign Intelligence Surveillance Act called PRISM. The program collected from U.S. company servers, including but not limited to, Google, Yahoo, and Apple full user communications content. The Appellant, Elliott Schuchardt, filed a complaint in District Court alleging the Government violated his Fourth Amendment right to be free from unreasonable searches and seizures of property by storing his confidential communications.

The Government filed successive motions to dismiss and Schuchardt in response amended his complaint twice. In his second amendment, he alleged that because the Government was intercepting, monitoring, and storing the content of all or substantially all of the email sent by American citizens, his own online communications had been seized in the dragnet. However, the District Court granted the Government's motion to dismiss the second amended complaint. The Court reasoned that Schuchardt lacked standing under Article III and had identified no facts supporting an inference that his own communications had been targeted, seized, or stored. Schuchardt appealed.

The Third Circuit noted that the lower court's analysis focused solely on the plaintiff's second amended complaint, which is a facial and not a factual attack on jurisdiction. In a facial attack, all of the allegations and documents referenced in the complaint are reviewed in the light most favorable to the plaintiff. In its review of the lower court's order, the Third Circuit accepted all of Schuchardt's plausible allegations as true and drew all reasonable inferences in his favor.

A plaintiff seeking to invoke federal jurisdiction, must have suffered an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent. In addition, there must be a causal connection between the injury and the conduct complained of. Moreover, it must be likely that the injury will be redressed by a favorable decision. In this case, Schuchardt's standing turned on whether his allegations were sufficiently particularized and whether his well-pleaded allegations were entitled to a presumption of truth. A particularized injury is one that affects a plaintiff in a personal and individual way. The collection of all or substantially all of the email sent by American citizens by means of the large internet providers allegedly encompasses Schuchardt's personal communications and data influenced by his personal circumstances. This includes information such as bank account numbers and passwords for financial data, and in the case of Schuchardt privileged and confidential communications with clients of his law firm. The Third Circuit held that Schuchardt's allegations stated a particularized injury under Article III.

The presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face. The Third Circuit has cautioned that the plausibility standard does not impose a heightened pleading requirement and plaintiffs need not plead specific facts. Schuchardt relied on media reports and other publicly-available information to state his claim that the Government was intercepting, monitoring, and storing the content of all or substantially all of the email sent by American citizens. The Government raised three arguments challenging the sufficiency of Schuchardt's allegations. In addressing each of the arguments in turn, the Third Circuit stated that the Government's reliance on two prior cases was misplaced as one involved only prospective injury, and the other involved the summary judgment standard, not dismissal. In addition, Schuchardt's pleaded factual matter supports the inference that PRISM collects all or substantially all of the email sent. Finally, the Government's arguments disagreeing with the factual premises of the plaintiff's claims cannot be considered in a facial jurisdictional challenge. Thus, the Third Circuit held that Schuchardt's second amended complaint sufficiently pleaded his standing to sue for a violation of his Fourth Amendment right.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153491p.pdf

Panel: Smith, Hardiman, and Nygaard, Circuit Judges

Argument Date: May 17, 2016

Date of Issued Opinion: October 05, 2016

Docket Number: No. 15-3491

Decided: Vacated and Remanded

Case Alert Author: Geminesse Dorsey

Counsel: Elliott J. Schuchardt, Esquire, Counsel for Appellant; Andrew G. Crocker, Esquire, Counsel for Amicus Appellant; Benjamin C. Mizer, Esquire, David J. Hickton, Esquire, H. Thomas Byron III, Esquire, and Henry C. Whitaker, Esquire, Counsel for Appellee.

Author of Opinion: Circuit Judge Hardiman

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/07/2016 12:22 PM     3rd Circuit     Comments (0)  

October 4, 2016
  Federal Trade Commission v. Penn State Hershey Medical Center - Third Circuit
Headline: FTC and Commonwealth of Pennsylvania granted a preliminary injunction to prevent merger of Penn State Hershey Medical Center and PinnacleHealth System

Area of Law: Antitrust Law, Mergers and Acquisitions

Issue(s) Presented: Should the Third Circuit grant a preliminary injunction precluding the merger of Penn State Hershey Medical Center and PinnacleHealth System because the proposed merger will have a "presumptively anticompetitive" effect on the Harrisburg area?

Brief Summary: Penn State Hershey Medical Center and PinnacleHealth System, both located in the Harrisburg, Pennsylvania area, proposed their plan to merge to the Federal Trade Commission (FTC) in May 2015. The FTC concluded that the proposed merger violated Section 7 of the Clayton Act. Joined by the Commonwealth of Pennsylvania, the FTC sought a preliminary injunction, alleging that the merger would "substantially lessen competition." The Third Circuit agreed.

The Third Circuit determined the effect on the Harrisburg area, which was discerned as the relevant geographic market the merger would affect, would be "presumptively anticompetitive." Due to this conclusion, the Third Circuit proceeded to weigh the equities of granting the preliminary injunction to decide if it would be done in the "public interest." Reasoning that the public's interest in enforcing antitrust laws outweighed the possible positive effects of the two hospitals merging, the Third Circuit granted the FTC's preliminary injunction.

Extended Summary: Penn State Hershey Medical Center and PinnacleHealth System (the "Hospitals"), both located in the Harrisburg area, signed a letter of intent for a proposed merger in June 2014. After approval from both of their boards in March 2015, the Hospitals revealed their plans to merge to the FTC in May 2015. After conducting an extensive investigation, the FTC alleged the merger violates Section 7 of the Clayton ACT in an administrative complaint filed on December 7, 2015. Two days later, joined by the Commonwealth of Pennsylvania, the FTC filed suit in the Middle District of Pennsylvania.
The FTC and Commonwealth (the "Government") sought a preliminary injunction alleging that the merge of the two hospitals would "substantially lessen competition in the market for general acute care services sold to commercial insurers in the Harrisburg, Pennsylvania market." The District Court denied the preliminary injunction, stating that the Government had not properly defined the relevant geographic market, which left the District Court no basis for determining if the merger would negatively impact competition.
The Third Circuit found that the District Court had applied the incorrect legal standard for determining the facts that establish a relevant geographic market. Determining a relevant geographic market is imperative in deciding whether a merger is likely to be anticompetitive and warrants injunctive relief under Section 13(b) of the FTC Act. While the District Court stated that it would use the hypothetical monopolist test, the appropriate test agreed by both parties, the Court incorrectly applied the test, instead using an economic test the FTC no longer accepts.
According to section 13(b) of the FTC Act, the FTC can seek a preliminary injunction in federal district court to prevent a merger if the FTC has reason to believe the corporation is violating or will violate Section 7 of the Clayton Act. The District Court may grant a preliminary injunction if there is a sufficient showing, once weighing the equities and considering the likelihood of the success of the FTC claim, granting this action will be in the public interest.
The Third Circuit first considered the likelihood of the success of the FTC's claim on its merits. Section 7 of the Clayton Act precludes mergers that may substantially "lessen competition" or "tend to create a monopoly." Section 7 claims are also assessed by a burden-shifting framework. Therefore, the Government needed to establish a prima facie case that the merger of the Hospitals had a high probability of being anticompetitive. The Government needed to establish this prima facie case by "(1) propos[ing] the proper relevant market and (2) show[ing] that the effect of the merger in that market is likely to be anticompetitive.
In assessing the first prong of the prima facie case, the Third Circuit found that the relevant product market was "general acute care ('GAC') services sold to commercial payors." GAC services require patients to stay overnight in the hospital for surgery or other medical procedures. Both parties agreed this was the appropriate relevant product market.
Next, the Third Circuit established that the relevant geographic market, the "area in which a potential buyer may rationally look for the goods or services he seeks," as the four-county "Harrisburg area," including Dauphin, Cumberland, Lebanon and Perry counties. In establishing the relevant geographic market, the Court had to consider the "commercial realities of the industry" and if those were "economically significant." The Third Circuit used the hypothetical monopolist test to determine the relevant geographic market, which questions "if a hypothetical monopolist could impose a small but significant non-transitory increase in price in the proposed market, the market is properly defined." If consumers would respond to an increase in prices by seeking the product outside the proposed market, then the market definition is too narrow.
The Third Circuit found that the District Court misapplied the hypothetical monopolist test, instead using a test that focused primarily on patient inflow statistics. The Third Circuit stated that patient flow data was not helpful in this case, because Hershey is a prominent hospital that attracts patients from outside of the Harrisburg area. Therefore, it is likely patients will still choose to go to Hershey due to its exceptional reputation for patient care without affecting the decisions of those patients who choose hospitals located closer to them. Explicitly, the Third Circuit stated that relying on patient flow data did not satisfy the hypothetical monopolist test. The District Court also failed to consider patient outflow which was very low for the GAC services.
Also, the Third Circuit stated the District Court did not consider the insurance companies' responses to a slight increase in pricing, which showed that the District Court failed to recognize the "commercial realities" of the geographic area. The Third Circuit clarified that in applying the hypothetical monopolist test, the view of the insurers is taken into account. Considerations such as a price increase forcing the insurers to take on hospitals outside the proposed geographic market proves that the market is too narrow.
Lastly regarding the relevant geographic market, the Third Circuit established that private contracts should not be considered for the hypothetical monopolist test, because it is a hypothetical test. The Third Circuit reasoned that if its analysis could be swayed by private contracts, any merger could try to expand its relevant geographic market by giving evidence of private agreements and escaping antitrust laws.
Having evaluated the District Court's legal error in applying the hypothetical monopolist test, the Third Circuit found that the Government had successfully defined the relevant geographic market. Noting the Government's extensive evidence regarding the bargaining power Hershey possesses due to its exceptional reputation and insurance company testimony that hospitals in York or Lancaster counties were not "suitable alternatives," the Third Circuit held the "four-county Harrisburg area" to be the relevant geographic market.
For the second prong of the prima facie case, the Third Circuit evaluated whether the Government proved the merger was likely to have a negative impact on competition in the area. Using a market concentration measurement index, the Third Circuit determined that the Government presented an excessively concentrated market which translated into demonstrating that the merger would be "presumptively anticompetitive."
While the Hospitals did have an opportunity to rebut the Government's prima facie case, The Third Circuit found that the Hospitals failed to prove that the merger would not inhibit competition or that any anticompetitive effects brought about by the merger would be "offset by extraordinary efficiencies resulting from the merger." To rebut a prima facie case of this nature, the Hospitals had to prove either of these options. The Hospitals presented two efficiencies defenses, but both failed, as the Third Circuit found that the Hospitals only presented speculative and ambiguous evidence, not clear evidence that the merger will create efficiencies which will offset the effect it will have on competition. Also, the Hospitals alleged that repositioning, "the response by competitors to offer close substitutes offered by the merging firms," would deter prices from significantly rising. However, the Third Circuit disputed this argument, reasoning that Hershey had too much power and attracted too many patients for repositioning to be successful.
Lastly before granting the preliminary injunction, the Third Circuit weighed the equities to decide whether granting the motion "would be in the public interest." This caused the Third Circuit to question if the harm suffered by the Hospitals in delaying the merger outweighed the harm the public might experience if the injunction were denied. Because Section 13(b) of the FTC Act does not specify which equities to weigh, the Third Circuit balanced the public's interest in enforcing antitrust laws with the private equities of the Hospitals seeking to merge. Reasoning that allowing the Hospitals to merge and then finding that it violates Section 7 of the Clayton would be more detrimental and costly than delaying the merge and granting the injunction, the Third Circuit concluded granting the preliminary injunction was appropriate. The Third Circuit clarified that it was weighing the equities of the injunction, as required by Section 13(b) of the FTC Act, not the merger, and found that the injunction would not deprive the public of any benefits. While recognizing the possibility for advantages to the public could result because of the merger, the Third Circuit reasoned that those advantages will still exist even though the merger is delayed by this preliminary injunction.
In conclusion, the Third Circuit concluded that a preliminary injunction precluding the merger of the Hospitals would be in the public interest after determining the Government's likelihood of success in proving the anticompetitive effects of the merger and weighing the equities.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/162365p.pdf

Panel: Fisher, Greenaway, Jr., and Krause, Circuit Judges

Argument Date: July 26, 2016

Date of Issued Opinion: September 27, 2016

Docket Number: No. 16-2365

Decided: Reversed and remanded

Case Alert Author: Katherine A. Osevala

Counsel: David C. Shonka, Sr., Joel R. Marcus, Deborah L. Feinstein, Michele Arington, William H. Efron, Ryan F. Harsch, Jared P. Nagley, Jonathan W. Platt, Geralyn J. Trujillo, Counsel for the Appellant FTC; Bruce L. Castor, Jr., Bruce Beemer, James A. Donahue, III, Tracy W. Wertz, Jennifer Thomson, Aaron L. Schwartz, Counsel for Appellant Commonwealth of Pennsylvania; Charles I. Artz, Counsel for Amicus Association of Independent Doctors; Richard P. Rouco, Counsel for Amicus Economics Professors; Lawrence G. Wasden, Brett DeLange, Robert W. Ferguson, Darwin P. Roberts, Jonathan A. Mark, Kamala D. Harris, George Jepsen, Lisa Madigan, Thomas J. Miller, Janet T. Mills, Maura Healey, Lori Swanson, Jim Hood, Tim Fox, Ellen F. Rosenblum, Counsel for Amici States; William D. Coglianese, Louis K. Fisher, Julie E. McEvoy, Christopher N. Thatch, Adrian Wager-Zito, Alisha M. Crovetto, Jon G. Heintz, James P. DeAngelo, and Kimberly A. Selemba, Counsel for Appellees.

Author of Opinion: Circuit Judge Fisher

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/04/2016 12:48 PM     3rd Circuit     Comments (0)  

October 3, 2016
  Garnett v. Undercover Officer C0039, et al.
Headline: Second Circuit Holds that Officer's False Account of the Details Surrounding an Arrest--Even When There Was Probable Cause for the Arrest--is Sufficient Basis for a Denial of Fair Trial Claim

Area of Law: Criminal Procedure

Issues Presented: Whether the fair trial right is violated when an officer, after having had probable cause to make an arrest, then fabricates his or her own observations of what occurred and conveys that false account to a prosecutor.

Brief Summary: Kwame Garnett was arrested during an undercover drug "buy and bust" based on Undercover Officer C0039's ("UC 39") personal observations, which included an incriminating statement Garnett allegedly made. Garnett, however, consistently denied making the statement. Garnett was subsequently acquitted in state court. He then filed a Section 1983 action in the Southern District of New York, alleging various claims against UC 39 and others. In particular, he argued that UC 39 had fabricated his account and therefore violated his right to a fair trial. After a jury trial, UC 39 was held liable on that basis, and Garnett was awarded $1 in nominal damages and $20,000 in punitive damages. Both sides appealed: UC 39 argued that the district court erred in denying his motion for judgment as a matter of law; and Garnett argued that the jury instructions were inaccurate. The Second Circuit affirmed the judgment, explaining that its prior precedents about the right to a fair trial meant that even if an officer had probable cause to arrest a defendant, that defendant could later sue for denial of the right to a fair trial based on a "police officer's fabrication of information...[including] when the information fabricated is the officer's own account of his or her observations of alleged criminal activity." To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...e7d40/1/hilite/


Extended Summary: On November 19, 2011, Undercover Officer C0039 ("UC 39") and Undercover Officer C0243 ("UC 243") were involved in a drug "buy and bust" operation in East Harlem. UC 243 was the officer attempting to purchase the drugs while UC 39 was there to provide security for UC 243. UC 243 entered a bodega with two thought-to-be drug dealers, Naquan Cintron and Naim Roper, and purchased small amounts of crack cocaine and marijuana from them. Cintron and Roper were subsequently arrested.

Garnett was also arrested in connection with the drug sale by Cintron and Roper. UC 39 scanned the area while UC 243 was talking with Cintron and Roper and saw Garnett standing outside the bodega. Based on UC 39's experience, he believed Garnett was keeping lookout for police while Cintron and Roper made the drug sale. UC 39, in addition to writing in a "DD-5" complaint follow-up form, told the arresting officer and prosecutor that Garnett entered the bodega during the sale and told Cintron and Roper, "Yo, hurry up.... I'm not looking to get locked up tonight. Let's go." UC 243 testified that he only heard Garnett speak -- not what he said.

Roper and Cintron eventually both pled guilty criminal charges related to the drug sale. Cintron, in his plea allocution, stated that he acted "in concert with" Garnett in selling "a narcotic drug to a police officer." Garnett proceeded to his state criminal trial. In preparation for trial, UC 39 provided the Assistant District Attorney with the information in in UC 39's DD-5 report. UC 39 also disclosed that Garnett had previously attempted to rob UC 39 during an investigation -- a fact that UC 39 did not realize until after the arrest because he did not recognize Garnett since the attempted robbery took place three years earlier.

Garnett denied having any involvement with the drug sale and was free of any drugs or contraband when searched. Garnett was subsequently charged. Unable to post bail, he was held for eight months until his trial. Garnett was ultimately acquitted of criminal sale of a controlled substance in the third degree and criminal sale of marijuana in the fourth degree.

On October 4, 2013, Garnett then filed a lawsuit against officers involved in his arrest alleging various claims. After summary judgment, the only claims remaining were false arrest, malicious prosecution, a fair trial claim against UC 39, and a failure to intervene claim against UC 243. At trial, UC 39 gave testimony relating to whether Garnett went inside the bodega that was inconsistent with his grand jury testimony. UC 243 testified that he saw Garnett enter the store and say something that caught Cintron and Roper's attention, but did not actually hear what Garnett said.

Garnett testified that he was in the same apartment earlier in the day with Cintron and Roper, but did not speak with them, and that he left alone. Garnett testified that after he left, he went to a restaurant near the bodega. While waiting for his food, he went to get a soda at the bodega, but decided not to because it was crowded. Garnett was later arrested in a video game store near the bodega. Roper also testified at Garnett's trial stating that although Garnett, Cintron, and Roper left the apartment together, Garnett was "a little bit separated from us" and that Garnett was not in the store and did not say anything in the store to Cintron and Roper.

After the jury was charged, the district court received a note from the jury asking for clarification on probable cause. The district court then distributed a supplemental instruction stating: "[if] a reasonable person in the officer's shoes looking at the totality of the circumstances would not believe that there was a probability that the plaintiff had committed a crime or was committing a crime, there would not be probable cause for his arrest." The jury only found for Garnett on his right to a fair trial claim, awarding him $20,000 punitive damages and $1 in nominal damages.

UC 39 moved for judgment as a matter of law, arguing that the fabricated evidence did not cause Garnett's deprivation of liberty because UC 39 had probable cause to arrest Garnett. Relying on Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 129 (2d Cir. 1997), the district court denied UC 39's motion. Garnett, meanwhile, moved for a new trial on his false arrest, malicious prosecution, and failure to intervene claims asserting the district court erred in its response to the jury's question.

The Second Circuit held that Ricciuti is as applicable when an officer falsifies information contained in his own account, conveyed to prosecutors, of what he heard the defendant say or do during the alleged offense, as it is when an officer falsifies information about a defendant's confession (the situation in Ricciuti).

UC 39 asserted that Ricciuti was distinguishable on two grounds: (1) that Ricciuti is limited to whether qualified immunity was available to officers who willfully fabricate evidence and (2) that falsification of evidence has always been addressed under the auspices of false arrest and malicious prosecution claims under the Fourth Amendment. The Second Circuit rejected UC 39's view and interpretation of a summary order, Jovanovic v. City of New York, 486 F. App'x 149, 152 (2d Cir. 2012), holding that a "Section 1983 claim for the denial of a right to a fair trial based on an officer's provision of false information to prosecutors can stand even if the officer had probable cause to arrest the Section 1983 plaintiff." The Second Circuit also rejected UC 39's second theory that fabrication of evidence can only implicate one constitutional provision and that a Fourth Amendment concept like probable cause should not immunize an officer who violates an arrestee's non-Fourth Amendment rights.

Garnett's appeal relating to the jury issue was also denied by the district court, which the Second Circuit affirmed after finding that "the charge, taken as a whole made clear that for UC 39 to have probable cause to believe that Garnett was aiding and abetting a drug sale, the officer would have to have had a reasonable belief that Garnett not only knew that an illegal transaction was occurring, but was also 'intentionally aiding' that sale of narcotics."

Panel: Circuit Judges Pooler, Sack, and Lynch

Argument Date: June 7, 2016

Date of Issued Opinion: September 30, 2016

Docket Number: 15-1489(L)

Decided: Affirmed

Case Alert Author: Scott L. Wenzel

Counsel:
Robert T. Perry for Plaintiff-Appellee-Cross-Appellant Kwame Garnett and Richard Dearing for Zachary W. Carter, Corporation Counsel of the City of New York for Defendant-Appellant-Cross Appellee.

Author of Opinion:
Judge Pooler

Circuit: Second Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/03/2016 08:12 PM     2nd Circuit     Comments (0)  

September 29, 2016
  Gelin v. U.S. Attorney General - 11th Circuit
Headline: Eleventh Circuit holds that a conviction for abuse of an elderly person or disabled adult under Fla. Stat. § 825.102(1) is a crime involving moral turpitude, making an alien ineligible for relief from removal under 8 U.S.C. § 1229b(b)(1)(C).

Area of Law: Immigration, Criminal

Issue: Whether a conviction for abuse of an elderly person or disabled adult under Florida Statute § 825.102(1) is a crime involving moral turpitude, making an alien ineligible for relief from removal.

Extended Summary: On January 22, 2014, an immigration judge ordered Jean Bernard Gelin ("Gelin"), a native and citizen of Haiti, be removed from the United States based upon his conviction of the crime of abuse of an elderly person or disabled adult, in violation of Fla. Stat. § 825.102(1). The IJ also found that the conviction was a crime involving moral turpitude. The Board of Immigration Appeals affirmed the order of removal. In a case of first impression, the Eleventh Circuit found that the abuse of an elderly person or disabled adult, in violation of § 825.102, is a crime involving moral turpitude. In making this determination, the court noted the culpable state of mind required by the statute and the particularly vulnerable nature of the victims. The court also rejected Gelin's argument that § 825.102 was unconstitutionally void for vagueness. Judge Martin dissented, finding that a person could be convicted under the statute without committing a crime involving moral turpitude.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201512497.pdf

Panel: Hull and Martin, Circuit Judges, and Wright (United States District Judge for the Eastern District of Arkansas, sitting by designation).

Argument: September 14, 2016

Date of Issued Opinion: September 22, 2016

Docket Number: 15-12497

Decided: Petition Dismissed

Case Alert Author: Martha Ferral and Marina Gonzalez

Counsel:
Michael S. Vastine for Petitioner Jean Bernard Gelin
Stefanie N. Hennes for Respondent U.S. Attorney General

Author of Opinion: Hull, Circuit Judge

    Posted By: Gary Kravitz @ 09/29/2016 05:06 PM     11th Circuit     Comments (0)  

September 28, 2016
  United States v. American Express Company - Second Circuit
Headline: Second Circuit Reverses, Holding Amex's Non-Discriminatory Provisions in Merchant Contacts Do Not Violate Sherman Anti-Trust Act.

Area of Law: Antitrust

Issue(s) Presented: Whether American Express' anti-steering clauses, inserted as part of the non-discriminatory provisions in their agreements with merchants, violate §1 of the Sherman Antitrust Act.

Brief Summary
: The Second Circuit reversed the United States District Court for the Eastern District of New York's decision that had found American Express (Amex) violated §1 of the Sherman Antitrust Act by imposing and monitoring non-compliance with contractual provisions preventing merchants from indicating a preference for particular credit cards and related prohibitions. The district court found that these restraints had an actual anticompetitive effect on interbrand competition. The Second Circuit disagreed, finding plaintiffs failed to meet their burden of demonstrating an anticompetitive effect on the whole market because the district court erred in excluding cardholders from, and counting only merchants in, its definition of the relevant market.

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...0f8de2298e8/4/hilite/

Extended Summary:
In 2010, the United States Government and seventeen states (collectively "Plaintiffs") sued American Express ("Amex), Visa, and MasterCard for unreasonably restraining trade in violation of the Sherman Act § 1.40. The complaint alleged, in essence, that certain anti‐steering provisions contained in each credit card networks' agreements with merchants suppress interbrand competition by blocking competition and removing incentives for networks to reduce card fees. In 2011, Visa and MasterCard entered consent judgments voluntarily rescinding their anti-steering provisions, but Amex proceeded to trial in the United States District Court for the Eastern District of New York. The district court found for Plaintiffs, holding that Amex's anti-steering provisions violate United States. antitrust laws and permanently enjoined Amex from enforcing the provisions for ten years. Amex appealed.

Section 1 of the Sherman Antitrust Act prohibits contracts that restrain trade or commerce among the States. To constitute a violation, plaintiffs must prove two elements: (1) a combination or some form of concerted action between at least two legally distinct economic entities that (2) unreasonably restrains trade. Amex's contracts with merchants include specific standard non-discrimination provisions (NDPs) that prohibit merchants from trying to dissuade consumers from using Amex cards or indicating a preference for other credit cards, among a few other related restrictions. Amex's NDPs at issue are classified as a vertical restraint on merchants. For vertical restraints, courts use a three-step burden shifting framework to analyze an anti-trust claim. Plaintiffs bear the initial burden of demonstrating a defendant's challenged behavior had "an actual adverse effect on competition as a whole in the relevant market." A plaintiff who cannot establish anticompetitive effects directly by showing an actual adverse effect on competition, may do so indirectly by showing that the defendant "has sufficient market power to cause an adverse effect on competition." Once the initial burden is satisfied, the burden shifts to the defendant to offer evidence of any pro-competitive effects of the restraint at issue. Finally, if the defendant meets its burden, plaintiff must prove that any legitimate competitive benefits offered could have been achieved through less restrictive means.

In finding an anti-trust violation, the district court found Amex's NDPs denied merchants the opportunity to influence their customers' payment decisions and thereby shift spending to less expensive cards. On appeal, the Second Circuit disagreed. In analyzing whether Plaintiffs satisfied their initial burden, the district court improperly defined the relevant market and that error was "fatal" to its finding a Sherman Act violation. Specifically, the Second Circuit found the district court erred in excluding the market for cardholders from its relevant market definition and analysis. The Second Circuit found that the district court erred in only accounting for the merchant side when it came to increasing merchant fees because those may be a result of offsetting the increase in cardholder rewards in an effort to not lose cardholders or to attract new ones. The Second Circuit reasoned that prices charged to merchants affect cardholder demands which in turn affect merchant demand. Accordingly, to retain cardholders, a network may need to increase cardholder benefits, by perhaps decreasing prices to cardholders, and this may lead to an increase in merchant fees to fund increased cardholder rewards. If merchant fees are increased such that merchant fees are unprofitable for the network, then they will not be raised and cardholder rewards will also not be raised. This may cause the network to lose cardholders. Thus, the court concluded, merchant pricing is only one half of the equation and the two sides cannot be considered in isolation.

The Second Circuit also concluded that Amex's 26.4% market share was not sufficiently indicative of it creating a barrier to entry for other competitors to demonstrate an indirect adverse effect on competition. It thus found that it was an error for the district court to have relied on cardholder insistence as support for its finding of market power. Although an increase in the value of cardholder rewards attracts customer loyalty, the court determined it is also equivalent to a price decrease to the cardholder which brings down the net price across the entire platform. Accordingly, the court reasoned, cardholder insistence has the opposite effect in that it makes it worthwhile for merchants to accept Amex cards. Ultimately, the court concluded that Amex's market power is a result of its rewards programs and perceived prestige due to Amex cardholders regarding the card as cheaper than competing Visa and MasterCard cards. The court found that the NDPs simply protect the program and that prestige, and outlawing the NDPs would appear to reduce this protection and likely result in increasing competitor market shares. As a result, the Second Circuit concluded plaintiffs did not meet their burden of showing that Amex harmed consumerism as a whole, both to cardholders and merchants.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...0f8de2298e8/4/hilite/

Panel: Judge Winter, Judge Wesley, and Judge Droney

Argument Date: 12/17/2015

Date of Issued Opinion: 9/26/2016

Docket Number:
15-1672

Decided: Reversed and remanded to enter judgment in favor of Amex.

Case Alert Author: Belino Voshtina

Counsel: Evan R. Chesler, Cravath, Swaine & Moore LLP, New York, NY (Peter T. Barbur, Kevin J. Orsini, Cravath, Swaine & Moore LLP; Donald L. Flexner, Philip C. Korogolos, Eric J. Brenner, Boies, Schiller & Flexner, LLP on the brief) for Defendants-Appellants American Express Company and American Express Travel Related Service Company, Inc. Nickolai G. Levin, Attorney, U.S. Department of Justice, Antitrust Division, Washington, D.C. (Sonia K. Pffaffenroth, Deputy Assistant Attorney General, Craig W. Conrath, Mark H, Hamer, Andrew J. Ewalt, Kristen C. Limarzi, Robert B. Nicholson, James J. Fredericks, Daniel E. Haar, Attorneys, U.S. Department of Justice, Antitrust Division; Mike DeWine, Ohio Attorney General, Mitchell L. Gentile, Assistant Ohio Attorney General, on the brief) for Plaintiffs-Appellees the United States, et al.

Author of Opinion:
Judge Wesley

Circuit:
Second Circuit

Case Alert Circuit Supervisor: Professor Elyse Diamond

    Posted By: Elyse Diamond @ 09/28/2016 09:04 AM     2nd Circuit     Comments (0)  

September 27, 2016
  GAMCO v. Vivendi - Second Circuit
Headline: Second Circuit Affirms Summary Judgment, Finding No Clear Error in District Court Ruling that Defendant Rebutted Plaintiff Value Investors' Fraud-On-The-Market Presumption of Reliance

Area of Law: Securities

Issue(s) Presented: Whether the defendant corporations successfully rebutted plaintiff value investors' fraud-on-the-market presumption of reliance supporting dismissal of plaintiffs' securities fraud claim.

Brief Summary: Plaintiff-Appellants GAMCO, a group of investors, filed a securities fraud claim against Vivendi Universal, S.A. and Vivendi S.A. (collectively, "Vivendi") under § 10(b) of the Securities Exchange Act of 1934 and the Securities Exchange Commission's ("SEC") Rule 10b-5 for materially misrepresenting their liquidity. Although reliance on a material omission or misrepresentation is an element of such a claim, plaintiffs are afforded a presumption of reliance in circumstances where they rely on the integrity of the market price of the security at issue. This theory of reliance, known as the "fraud-on-the market theory," is, however, rebuttable by a defendant. The United States District Court for the Southern District of New York granted summary judgment for Vivendi, finding Vivendi successfully rebutted GAMCO's fraud-on-the-market theory of reliance by showing that GAMCO used its own value calculation to determine whether to purchase a security, rather than basing the decision on the market price alone. Furthermore, the district court found the facts demonstrated that even had GAMCO had known about Vivendi's alleged concealed liquidity problems, GAMCO still would have completed the purchase transaction. On Plaintiffs' appeal, the Second Circuit, finding no clear error, affirmed the district court's entry of judgment for Vivendi.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...25730/1/hilite/


Extended Summary: To succeed on a securities fraud claim brought under § 10(b) of the Securities Exchange Act of 1934 and the Securities Exchange Commission's ("SEC") Rule 10b-5, one element the plaintiff must prove is "reliance upon [a material] misrepresentation or omission." Although in most cases reliance is proven directly by demonstrating the investor was aware of the defendant's misstatement and engaged in the transaction based upon the misrepresentation, investors in certain circumstances, are afforded a presumption of reliance by showing they relied on the integrity of the market price of the security in choosing to purchase or sell. This presumption of reliance is known as the "fraud-on-the market theory" and is rebuttable by the defendant by a showing that "severs the link between the alleged misrepresentation and the price received or paid by the plaintiff, or [their] decision to trade at a fair market price."

Plaintiff-Appellants GAMCO are value investors. Value investors make an independent estimation of the value of a publicly-traded company's securities and attempt to buy the securities when the market price is lower than its own valuation, betting that the market price will rise over time. GAMCO invested in Defendants-Appellees Vivendi Universal, S.A. and Vivendi S.A. (collectively, "Vivendi") between 2000 and 2002. As the basis of their securities fraud claim, GAMCO alleged in its complaint that Vivendi misrepresented the amount of liquidity it had and, once their actual liquidity came to light, the value of the securities dropped dramatically. Vivendi moved for summary judgment and the United States District Court for the Southern District of New York granted its motion, holding the facts demonstrated that Vivendi successfully rebutted the fraud-on-the-market theory of reliance.

On GAMCO's appeal, the Second Circuit examined the factual findings made by the district court. The district court found that GAMCO's purchasing decisions were largely based on its own "Private Market Value, (PMV)," an independent calculation of the worth of the securities, that approximated the price that an informed industrialist would be willing to pay for the company, if each of its segments were valued independently in a private market sale. GAMCO then compared the PMV to the public market price. If there was a sufficiently large spread between these two numbers, as well as a type of catalyst or dynamic which it believed would cause the securities' value to move toward the PMV over time, GAMCO would purchase the security. The evidence, including testimony from GAMCO employees indicated that Vivendi's liquidity had no impact on the PMV calculation and the district court concluded that, even if GAMCO was aware of Vivendi's liquidity problems and its concealment of those problems, GAMCO's PMV would still have been materially higher than the public market price, making the purchase a good investment in GAMCO's view.

The Second Circuit found no clear error in the district court's factual findings and affirmed summary judgment for Vivendi. It concluded that the district court had a reasonable basis to hold that GAMCO did not believe that the market price necessarily equals, at any given time, the efficient value of a security and, accordingly, that Vivendi had rebutted the fraud-on-the-market presumption of reliance relied upon by GAMCO.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...25730/1/hilite/


Panel: Circuit Judges Carbranes, Livingston, and Lynch

Argument Date: 03/03/2016

Date of Issued Opinion: 09/27/2016

Docket Number: No. 13-1194(L), 13-1377(XAP)

Decided: Affirmed

Case Alert Author: Leigh Wellington

Counsel: Andrew J. Entwistle, Entwistle & Cappucci LLP, New York, N.Y. (Vincent R. Cappucci, Arthur V. Nealon, Jordan A. Cortez, Entwistle & Cappucci LLP, New York, N.Y., on the brief), for Plaintiffs-Appellants-Cross-Appellees; Mark A. Perry, Gibson, Dunn & Crutcher LLP, Washington, D.C. (Miguel A. Estrada, Lucas C. Townsend, Gibson Dunn & Crutcher LLP, Washington, D.C.; Caitlin J. Halligan, Gabriel K. Gillett, Gibson, Dunn & Crutcher LLP, New York, N.Y.; James W. Quinn, Gregory Silbert, Weil, Gotshal & Manges LLP, New York, N.Y.; Daniel Slifkin, Timothy G. Cameron, Cravath, Swaine & Moore LLP, New York, N.Y., on the brief), for Defendants-Appellees-Cross-Appellants.

Author of Opinion:
Per Curiam

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Professor Elyse Diamond

    Posted By: Elyse Diamond @ 09/27/2016 07:12 PM     2nd Circuit     Comments (0)  

  Maurice Marie Didon v. Alicia Dominguez Castillo - Third Circuit
Headline: The Hague Convention does not Allow for Concurrent Residence in Multiple Countries

Area of Law: International Law, Custody Law

Issues Presented: May a child have two countries of habitual residence at the same time under the Hague Convention?

Brief Summary: The children in this custody dispute lived on the island of Saint Martin which comprises two countries, French Saint Martin and Dutch Sint Maarten. The children lived on the Dutch side and went to school on the French side. The father filed for custody in the French court, and, when the mother took them to the United States, he sought their return under the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention only allows enforcement of orders from countries where children are habitually residing. The Third Circuit rejected the lower court ruling that the children were residents of both countries. It found that, based on the text of the Hague Convention a child could only habitually reside in a single country. Because residence is decided by where the child has lived, and Sint Maarten has not recognized the Convention, it did not apply.

Extended Summary: This case concerns two children, A.D. and J.D., from Saint Martin. This island is split into French Saint Martin, where the children went to school, and Dutch Sint Maarten, where the children lived. French Saint Martin recognizes the Hague Convention on the Civil Aspects of International Child Abduction but Sint Maarten does not. The Convention allows a parent to petition for the return of a child removed from his or her "habitual residence," in violation of a custody order.

A.D. was the son of both parties and J.D. the daughter of the respondent Dominguez Castillo, referred to by the Court as Dominguez. The parties sought and obtained in French court a change to J.D.'s birth certificate naming Didon as the father but completed no other adoption procedures. The family lived in Dutch Sint Maarten but Didon worked and the children went to school in French Saint Martin. In July 2014 Didon filed for full custody in French civil court, resulting in no notice to Dominguez. Before these procedures were complete, she took the children to New York with no clear intention to return. The French court granted Didon full custody and a private investigator he hired found them in Hazleton, Pennsylvania.

In August, 2015 Didon filed a Hague Convention Petition in the Middle District of Pennsylvania to return his children and enforce the French custody order. The District Court approved the petition as to A.D. but denied it as to J.D. The court found that due to the family's contacts it was resident in both parts of the island and added that: "The parties' testimony reveals that the border [between Dutch Sint Maarten and French Saint Martin] is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike. . . . [F]or most purposes of its residents' daily life, the island is essentially undivided." The District court distinguished cases denying multiple habitual residences previously as deciding the issue of whether the child had abandoned a previous residence. It granted Didon custody of A.D. due to the biological relationship. However, the adoption of J.D. did not satisfy French law such that it could grant him custody.

The Third Circuit reversed, holding that a child can have only a single country of habitual residence, and because the children lived in Sint Maarten, it was their habitual residence. Because Sint Maarten did not recognize the Convention, Didon could not rely on the Convention to enforce his French custody order. The Court cautioned that determining an individual's place of residence is a mixed question of law and fact. The purpose of the Hague Convention is to prevent forum shopping during custody cases; it seeks to restore the status quo by returning children to their homes. The Court set forth distinct questions to be evaluated in such a custody battle: (1) where the removal or retention took place; (2) where the child was habitually resident immediately prior to the removal or retention; (3) whether the removal or retention violated the petitioning parent's custody rights under the law of the country of habitual residence; (4) whether the petitioning parent was actually exercising those custody rights at the time of the removal or retention, or would have but for the removal or retention.

The Court found the second question dispositive. The Court examined the text of the Hague Convention and found that it unambiguously contemplated only a single place of residence in referring only to a single "State" of habitual residence at multiple points. Moreover case law from multiple circuits has reiterated this point. While there was a case from the Ninth Circuit which the District Court used to justify its reasoning which found it could be possible to find multiple residences where a child split their time, the case was unclear if it was referring to alternating or concurrent habitual residence. The Third Circuit went on to explain that even if the case was referring to concurrent habitual residence it would not override the text of the convention.

The Court then found that Dutch Sint Maarten was the children's place of habitual residence based on the concept that residence cannot be established where a child has not lived. This interpretation honors the choice of law rule provided by the drafters of the Convention. A child must have lived in a country for that country to be her place of habitual residence under the Hague Convention. Thus the French custody order could not be enforced through the Convention as the habitual residence was Sint Maarten which did not recognize the Convention.



To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/153350p.pdf

Panel (if known): McKee, Fisher, Greenaway, Circuit Judges

Argument Date: June 22, 2016

Date of Issued Opinion: September 26, 2016

Docket Number: 15-3350 and 15-3579

Decided: Vacated

Case Alert Author: John Farrell

Counsel: Anthony J. Vetrano, Esq., Counsel for Didon; Michelle Pokrifka, Esq., Counsel for Dominguez

Author of Opinion: Judge Greenaway

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 09/27/2016 03:36 PM     3rd Circuit     Comments (0)  

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 Diamond @ 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 Diamond @ 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 Diamond @ 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 Diamond @ 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.

Brie