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February 12, 2016
  J.H. v. Bernalillo County - Tenth Circuit
Case Name: J.H. v. Bernalillo County

Headline: Tenth Circuit Holds Schoolhouse Arrest of Special Education Student Did not Violate Fourth Amendment or ADA

Area of Law: Fourth Amendment, Americans With Disabilities Act

Issue Presented: Whether a school officer: 1) had probable cause to arrest a special needs child who kicked a teacher; 2) used excessive force in handcuffing the child and transporting her to the juvenile detention center; 3) discriminated against the child on the basis of disability; and 4) failed to reasonably accommodate the child during an arrest and transport.

Brief Summary:

After observing 11 year-old special needs student (Child) kick a teacher, a school resource officer handcuffed and transported Child to a juvenile detention center. Child's Mother sued the officer and his employer, Bernalillo County, for violations of the Fourth and Fourteenth Amendments and Americans with Disabilities Act (ADA) via 42 U.S.C. § 1983. The district court dismissed the due process claim and granted summary judgment to Defendants on the remaining claims.

Mother appealed. The Tenth Circuit affirmed, holding with respect to the constitutional arguments that the officer had probable cause to arrest Child after she committed a crime and did not use excessive force. The Tenth Circuit also rejected the ADA arguments because there was no reason for the officer to believe Child lacked the necessary scienter and Child never asked for an accommodation.

Extended Summary:

A school officer observed an 11 year-old special needs student (Child) kick a teacher. Since battery of a school official is a crime, the officer handcuffed and transported Child to a juvenile detention center. Child's Mother sued the officer and his employer, Bernalillo County, under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment, Due Process Clause of the Fourteenth Amendment, and Americans with Disabilities Act (ADA). She asserted that the officer arrested Child without probable cause and used excessive force in handcuffing and transporting Child to a juvenile detention center. And the officer discriminated against Child for having a disability and failed to reasonably accommodate Child's disability.

The district court dismissed the due process claim because the factual allegations did not implicate the Fourteenth Amendment. The district court also granted summary judgment to Defendants on the Fourth Amendment and ADA claims on qualified immunity grounds. Mother appealed.

First, the Tenth Circuit held that once Child committed a crime by kicking the teacher, the officer had probable cause to arrest her. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Second, the Tenth Circuit held that the officer did not apply excessive force because the officer could restrict Child's freedom of movement by handcuffing her. See Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1156 (D.C.Cir.2004). Also, state law authorized the officer to take her to a detention center as opposed to taking her to her parents. See NMSA 1978, §§ 32A-210(A)(1), (A)(3).

Third, the Tenth Circuit agreed that the officer did not violate the ADA, as the officer properly arrested Child on the basis that she committed a crime, not on the basis of her disability. See Roberts v. City of Omaha, 723 F.3d 966, 973-74 (8th Cir.2013); see also 42 U.S.C. § 12132.

Fourth, the Tenth Circuit held that the officer did not fail to reasonably accommodate Child's learning disability because he did not know, or have reason to know, that Child was an individual with a disability needing accommodations. See Robertson v. Las Animas Cty. Sheriff's Dep't, 500 F.3d 1185, 1996 (10th Cir.2007); see also 42 U.S.C. § 12112(b)(5)(A).

Additionally, the Tenth Circuit affirmed dismissal of the Due Process claim because actions for excessive force and unlawful arrest are governed by the Fourth Amendment, not the Fourteenth. See Estate of Booker v. Gomez, 745 F.3d 405 (10th Cir.2014). The Tenth Circuit also rejected claims against Bernalillo County for inadequate training because an employer is not liable unless the employee commits a constitutional or statutory violation. See Estate of Ellis v. Odgen City, 589 F.3d 1099, 1104-05 (10th Cir.2009). There was no such violation here.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-2068.pdf

Panel: Bacharach, Ebel, and McHugh

Date of Issued Opinion: November 27, 2015

Docket Number: No. 14-2068

Decided: The Tenth Circuit affirmed the district court's dismissal and grant of summary judgment in favor of defendants.

Case Alert Author: Veronica C. Gonzales

Counsel:

Joseph P. Kennedy, Kennedy Kennedy & Ives, Albuquerque, New Mexico (Shannon L. Kennedy and Michael L. Timm, Jr., Kennedy Kennedy & Ives, Albuquerque, New Mexico, with him on the briefs), for Plaintiff-Appellant.

Luis Robles, Robles, Rael & Anaya, Albuquerque, New Mexico (Taylor S. Rahn, Robles, Rael & Anaya, Albuquerque, New Mexico, with him on the briefs), for Defendants-Appellees.

Author of Opinion: Hon. Robert E. Bacharach

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/12/2016 12:14 AM     10th Circuit     Comments (0)  

  U.S. v. Snowden - Tenth Circuit
Case Name: U.S. v. Snowden

Headline: Tenth Circuit Holds Possible $1.5 million Error in Sentencing Calculations Was Harmless

Area of Law: Criminal Procedure, Sentencing

Issue Presented: Whether the district court erred in calculating the sentencing enhancement based on a calculation of loss that was the sum of the pecuniary costs and the costs to develop a proprietary database. And if so, whether the error was harmless.

Brief Summary:

Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails. The district court found that because these crimes caused over one million dollars in losses, a 16-level sentencing enhancement was appropriate. The resulting guideline range was 41-51 months in prison, though the court varied downward and imposed a 30-month sentence.

Defendant appealed, arguing that the loss amount mistakenly included the $1.5 million cost to develop the proprietary database he hacked into and, consequently, the sentencing range was too high. The Tenth Circuit, without determining whether the loss calculation was improper, held that any perceived error was harmless because the district court unequivocally stated it would still impose a 30-month sentence even under a lower guideline range. The Tenth Circuit affirmed.

Extended Summary:

Since 2005, Onyx, M.D., Inc., a physician-staffing agency, developed a proprietary database. Defendant was a former employee who, a year after being terminated, obtained an executive's password and copied information out of the database to help him compete with Onyx. Defendant also intercepted over 20,000 emails to and from four Onyx executives. Onyx eventually noticed the hack, which the FBI traced to Defendant's address. Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails.

At sentencing, the district court determined that Onyx's losses were 1) $25,000 monetary harm in responding to the hack, and 2) $1.5 million in costs to develop the database. This resulted in a 16-level increase and guideline range of 41-51 months.

Defendant argued that the proper loss amount was $25,000, which would call for a 4-level increase and guideline range of 8-14 months. The district court disagreed and varied downward to impose a 30-month sentence, stating that even under a lower range it would impose a 30-month sentence with an upward variance. Defendant appealed.

First, the Tenth Circuit considered whether the district court properly calculated Onyx's losses. The Tenth Circuit looked to the guidelines commentary, which defined actual loss as the reasonably foreseeable pecuniary harm (meaning monetary harm) resulting from the offense. See USSG § 2B1.1 cmt. n.3(A)(i), (iii).

The Tenth Circuit held that the $1.5 million development cost was not adequately tied to any actual loss suffered by Onyx. Interpreting the commentary to require a district court to not only take into account the cost of developing trade secrets, but to substitute the development cost for the loss calculation contradicts the guideline's emphasis on actual losses. Without explicitly reversing, the Tenth Circuit stated its reluctance to affirm the offense level and corresponding guideline range.

Second, the Tenth Circuit held that any alleged error in the loss calculation was harmless. In the rare situation where there is harmless error in the loss calculation, it is because the error did not affect the sentence imposed by the district court. See U.S. v. Glover, 413 F.3d 1206, 1210 (10th Cir.2005). Here, the sentence was not affected because the district court clearly expressed that it would impose a 30-month sentence as an upward variance even if the correct range was lower.

Moreover, the Tenth Circuit held that the district court properly gave more than a boiler plate or perfunctory explanation for why it would exercise an upward variance. See U.S. v. Pena-Hermosillo, 522 F.3d 1108, 1117-18 (10th Cir.2008). The court relied on specific factors from 18 U.S.C. § 3553(a). Since the district court is not otherwise required to sentence within the guideline range, see U.S. v. Booker, 543 U.S. 220 (2005), a remand was inappropriate. The Tenth Circuit held that any error was harmless and affirmed the district court's sentence.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-1107.pdf

Panel: Tymkovich, Hartz, and Baldock

Date of Issued Opinion: November 27, 2015

Docket Number: No. 15-1107

Decided: The Tenth Circuit affirmed the sentence imposed by the district court.

Case Alert Author: Veronica C. Gonzales

Counsel:

O. Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.

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

Author of Opinion: Hon. Harris L. Hartz

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/12/2016 12:08 AM     10th Circuit     Comments (0)  

  U.S. v. Snowden - Tenth Circuit
Case Name: U.S. v. Snowden

Headline: Tenth Circuit Holds Possible $1.5 million Error in Sentencing Calculations Was Harmless

Area of Law: Criminal Procedure, Sentencing

Issue Presented: Whether the district court erred in calculating the sentencing enhancement based on a calculation of loss that was the sum of the pecuniary costs and the costs to develop a proprietary database. And if so, whether the error was harmless.

Brief Summary:

Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails. The district court found that because these crimes caused over one million dollars in losses, a 16-level sentencing enhancement was appropriate. The resulting guideline range was 41-51 months in prison, though the court varied downward and imposed a 30-month sentence.

Defendant appealed, arguing that the loss amount mistakenly included the $1.5 million cost to develop the proprietary database he hacked into and, consequently, the sentencing range was too high. The Tenth Circuit, without determining whether the loss calculation was improper, held that any perceived error was harmless because the district court unequivocally stated it would still impose a 30-month sentence even under a lower guideline range. The Tenth Circuit affirmed.

Extended Summary:

Since 2005, Onyx, M.D., Inc., a physician-staffing agency, developed a proprietary database. Defendant was a former employee who, a year after being terminated, obtained an executive's password and copied information out of the database to help him compete with Onyx. Defendant also intercepted over 20,000 emails to and from four Onyx executives. Onyx eventually noticed the hack, which the FBI traced to Defendant's address. Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails.

At sentencing, the district court determined that Onyx's losses were 1) $25,000 monetary harm in responding to the hack, and 2) $1.5 million in costs to develop the database. This resulted in a 16-level increase and guideline range of 41-51 months.

Defendant argued that the proper loss amount was $25,000, which would call for a 4-level increase and guideline range of 8-14 months. The district court disagreed and varied downward to impose a 30-month sentence, stating that even under a lower range it would impose a 30-month sentence with an upward variance. Defendant appealed.

First, the Tenth Circuit considered whether the district court properly calculated Onyx's losses. The Tenth Circuit looked to the guidelines commentary, which defined actual loss as the reasonably foreseeable pecuniary harm (meaning monetary harm) resulting from the offense. See USSG § 2B1.1 cmt. n.3(A)(i), (iii).

The Tenth Circuit held that the $1.5 million development cost was not adequately tied to any actual loss suffered by Onyx. Interpreting the commentary to require a district court to not only take into account the cost of developing trade secrets, but to substitute the development cost for the loss calculation contradicts the guideline's emphasis on actual losses. Without explicitly reversing, the Tenth Circuit stated its reluctance to affirm the offense level and corresponding guideline range.

Second, the Tenth Circuit held that any alleged error in the loss calculation was harmless. In the rare situation where there is harmless error in the loss calculation, it is because the error did not affect the sentence imposed by the district court. See U.S. v. Glover, 413 F.3d 1206, 1210 (10th Cir.2005). Here, the sentence was not affected because the district court clearly expressed that it would impose a 30-month sentence as an upward variance even if the correct range was lower.

Moreover, the Tenth Circuit held that the district court properly gave more than a boiler plate or perfunctory explanation for why it would exercise an upward variance. See U.S. v. Pena-Hermosillo, 522 F.3d 1108, 1117-18 (10th Cir.2008). The court relied on specific factors from 18 U.S.C. § 3553(a). Since the district court is not otherwise required to sentence within the guideline range, see U.S. v. Booker, 543 U.S. 220 (2005), a remand was inappropriate. The Tenth Circuit held that any error was harmless and affirmed the district court's sentence.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-1107.pdf

Panel: Tymkovich, Hartz, and Baldock

Date of Issued Opinion: November 27, 2015

Docket Number: No. 15-1107

Decided: The Tenth Circuit affirmed the sentence imposed by the district court.

Case Alert Author: Veronica C. Gonzales

Counsel:

O. Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.

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

Author of Opinion: Hon. Harris L. Hartz

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/12/2016 12:02 AM     1st Circuit     Comments (0)  

February 11, 2016
  U.S. v. Cunningham - Tenth Circuit
Case Name: U.S. v. Cunningham (non-precedential)

Headline: Tenth Circuit Applies New Supreme Court Case Holding That Officer's Mistake of Law Excuses Improper Stop

Area of Law: Criminal Procedure, Fourth Amendment

Issue Presented: Whether the officer made an objectively reasonable mistake of law that would justify an otherwise invalid traffic stop.

Brief Summary:

An officer stopped a vehicle because of the driver's failure to signal prior to turning onto a public street. The front seat passenger, Defendant, was indicted for being a felon in possession of a firearm. Defendant filed a motion to suppress on the grounds that the driver's conduct was not prohibited by the Colorado statute. The district court denied the motion to suppress, holding that the stop was justified based on a traffic violation.

Defendant appealed. Following the district court's judgment, the Supreme Court of the United States ruled in Helen v. North Carolina, 135 S.Ct. 530, 539 (2014) that an officer's mistake of law can justify a traffic stop as long as the mistake is objectively reasonable. Relying on Helen, the Tenth Circuit affirmed, holding that the officer's mistake was objectively reasonable because the statute was ambiguous.

Extended Summary:

An officer stopped a vehicle as it was exiting a motel parking lot because the driver failed to signal her intention to turn onto a public street, contra Colo. Rev. Stat. § 42-4-903(1). The front seat passenger, Defendant, was indicted for being a felon in possession of a firearm. He filed a motion to suppress, arguing that the statute did not prohibit the driver's conduct, the traffic stop was thereby invalid, and as a result the firearm and statements were obtained in violation of the Fourth Amendment. Defendant argued that the officer's mistake of law, even if reasonable, invalidated the stop.

The district court found that the driver committed a traffic violation under Colorado law and that the stop was not based on a mistake of law. The court denied Defendant's motion to suppress. Defendant appealed.

The issue before the Tenth Circuit was whether the traffic stop and seizure were permissible under the Fourth Amendment. After the district court's ruling, the Supreme Court of the United States decided Helen v. North Carolina, 135 S.Ct. 530, 539 (2014). There, the Supreme Court held that an officer's mistake of law does not invalidate a traffic stop so long as the mistake is objectively reasonable.

The Tenth Circuit held that the officer's interpretation of Colorado law as requiring a turn signal was objectively reasonable and so then was the stop. First, the statute is genuinely ambiguous and the highest court in Colorado has not interpreted it. Second, like Sigrist v. Love, 510 P.2d 456, 457 (Colo.App.1973), the Tenth Circuit can apply a state traffic law to a driver entering a public street. Third, the divide among Colorado district courts in interpreting this law provided further evidence of the ambiguity in the statute.

The Tenth Circuit also interpreted the statute to require the driver to signal her intent to turn. Though the statute only expressly requires a signal when entering a private road, but not exiting, a residual clause requires a signal when turning from a direct course, roadway or not. Additionally, even though the statute ordinarily does not apply to a private road or driveway, the conduct here did not occur exclusively on a private road. It involved the use of a street governed by state law. Accordingly, the Tenth Circuit affirmed the district court's denial of Defendant's motion to suppress.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-1042.pdfhttps://www.ca10.uscourts.gov/opinions/15/15-1042.pdf

Panel: Gorsuch, O'Brien, and Bacharach

Date of Issued Opinion: November 24, 2015

Docket Number: No. 15-1042

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

Case Alert Author: Veronica C. Gonzales

Counsel:

Robert Mark Russel, David A. Tonini, Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.

Antony Mark Noble, Noble Law Firm, LLC, Lakewood, CO, for Defendant - Appellant.

Author of Opinion: Hon. Terrence L. O'Brien

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/11/2016 11:50 PM     10th Circuit     Comments (0)  

February 9, 2016
  Center For Auto Safety v. Chrysler Group, LLC. -
Headnote: Ninth Circuit panel held that, in light of the strong presumption for public access to court records, defendant Chrysler Group ("Chrysler") must demonstrate "compelling reasons" to keep sealed documents that were attached to class action plaintiffs' preliminary injunction motion, finding that the preliminary injunction motion, while not technically "dispositive," is nevertheless "more than tangentially related to the merits of a case."

Areas of Law: Civil Procedure; Documents Under Seal

Issue Presented: In ruling on a motion to unseal documents, what is the appropriate test to be applied to determine when documents that were produced under seal during discovery, and subsequently attached to a preliminary injunction motion, can be unsealed and made available to the public?

Significance: Ninth Circuit panel's holding makes it more difficult for corporations sued for selling defective products to conceal those defects from the public by settling those lawsuits before the court reaches a final determination on the merits and then having the court seal the records.

Brief Summary:

Plaintiffs filed a class action against Chrysler for alleged defects in some of its vehicles and filed a motion for a preliminary injunction to require Chrysler to notify its customers of the threat presented by its defective vehicles. Plaintiffs and Chrysler attached "confidential" discovery documents to their memoranda supporting and opposing the motion. These documents were then filed under seal. Shortly before the district court denied plaintiffs' motion for a preliminary injunction, plaintiff-intervenor, the Center for Auto Safety ("CAS"), filed a motion to unseal the documents that were attached to the class action plaintiffs' preliminary injunction motion. The district court denied the motion to unseal, finding that the preliminary injunction motion was "nondispositive" and, therefore, Chrysler only needed to show "good cause" to keep the records sealed. The Ninth Circuit panel vacated the district court's denial, rejecting the dispositive/nondispositive test under which a party seeking to keep documents sealed must demonstrate "compelling reasons" only in those cases where the motion at issue is literally "dispositive" meaning that it brings about a "final determination." The panel found that even technically nondispositive motions may nevertheless be more than tangentially related to the merits of the case and, therefore, a party seeking to keep sealed documents attached to such motions demonstrate compelling reasons therefor . The panel also found that the class action plaintiffs' preliminary injunction motion, while not technically dispositive, was "more than tangentially related to the merits of the case." On remand, Chrysler must demonstrate to the district court compelling reasons for keeping the records under seal.

Extended Summary:

Plaintiffs filed a putative class action alleging defects in certain Chrysler vehicles. During discovery, the parties stipulated to a protective order that permitted each party to designate certain documents as confidential and required any party that later wished to attach a "confidential" document to a court pleading to apply to do so under seal. Plaintiffs later moved for a preliminary injunction to require Chrysler to notify its customers of the alleged risks its vehicles presented. Both parties attached confidential documents to their memoranda supporting and opposing the motion and moved the district court to file the documents under seal. The court granted the motions. Before the district court ruled on the preliminary injunction motion, CAS moved to intervene and unseal the confidential documents attached to support and oppose the preliminary injunction motion. CAS argued the documents could not be kept under seal unless Chrysler met the "compelling reason" standard, while Chrysler contended it need only show "good cause." The district court applied the less exacting "good cause" standard and ultimately found Chrysler met this lower bar.

To support its ruling, the district court relied on past Ninth Circuit cases that stated a party attempting to keep records attached to a "nondispositive motion" under seal need only show good cause. The district court defined a dispositive motion as one that could lead to a final determination on some issue. Applying the dispositive test, the district court held the preliminary injunction to inform Chrysler's customers of the potential dangers would not lead to a final determination on an issue and thus applied the less exacting good cause standard.

On appeal, the Ninth Circuit panel rejected the mechanical dispositive/nondispositive test applied by the district court. The panel ruled that "public access will turn on whether the motion is more than tangentially related to the merits of a case." The panel noted that, while some nondispositive motions are unrelated, or merely tangentially related, to the merits of a case, "plenty [of] other non-dispositive motions - including routine motions in limine - are strongly correlative to the merits of a case." Limiting the compelling reasons test to the narrow category of "dispositive motions" goes against the long held and strong presumption in favor of public access to court records. A party seeking to seal judicial records bears the heavy burden of overcoming the strong presumption of public access by demonstrating compelling reasons. When deciding whether documents should be kept under seal, the court must balance the competing interest of the public and the party seeking to keep certain records secret.

The panel held that plaintiffs' preliminary injunction was more than tangentially related to the merits of the case. Plaintiffs had demanded in their complaint, inter alia, injunctive relief including an order requiring Chrysler to notify and repair the vehicle defect. The preliminary injunction requested Chrysler disclose the pending litigation to their customers. The panel observed: "If plaintiffs had succeeded in their motion for preliminary injunction, they would have won a portion of the injunctive they requested in the underlying complaint, and that portion of their claims would have been resolved." For that reason, the preliminary injunction motion was more than tangentially related to the merits of the case and, therefore, on remand, Chrysler must demonstrate compelling reasons for keeping the documents sealed.

To read full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/15-55084.pdf

Panel: Sandra S. Ikuta and John B. Owens, Circuit Judges and William K. Sessions, District Judge.

Argument Date: October 20, 2015

Date of Issued Opinion: January 11, 2016

Docket Number: 15-55084

Decided: Vacated and Remanded

Case Alert Author: Brian D. Shapiro

Counsel:
Jennifer D. Bennett (argued) and Leslie A. Bailey, Public Justice PC, Oakland, California, for Intervenor-Appellant.

Thomas H. Dupree, Jr. (argued) and Sarah G. Boyce, Gibson, Dunn & Crutcher LLP, Washington, D.C.; Kathy A. Wisniewski, John W. Rogers, and Stephen A. D'Aunoy, Thompson Coburn LLP, St. Louis, Missouri; Rowena Santos, Thompson Coburn LLP, Los Angeles, California, for Defendant-Appellee.

Author of Opinion: Judge Owens

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 02/09/2016 03:00 PM     9th Circuit     Comments (0)  

February 8, 2016
  Hall v. Greystar Management Services, L.P., et al. -- Fourth Circuit
Versailles Is Not Your Palace: Conversion Claim Survives After Apartment Complex Destroys 15,000 Pounds of Ex-Tenant's Belongings

Areas of Law: Civil Procedure

Issue Presented: Whether the district court abused its discretion when it dismissed Hall's complaint and denied her motions to reconsider and amend.

Brief Summary: Hall was notified by Greystar Management Services, the owner of her apartment complex, that she could no longer use a storage unit to store items for her service dog because the items created a fire code violation. She also eventually learned that her lease would not be renewed. Hall was subsequently evicted. Hall filed suit against Greystar Management, PSN Landscaping and Lieutenant Richard Kelly but the district court granted the defendants' motion to dismiss. Hall then filed a motion to amend her complaint. This was also denied. She then appealed to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit found that the district court did not abuse its discretion when it denied Hall's amended retaliation claim but the district court did abuse its discretion when it denied Hall's amended conversion claim.

Extended Summary:
Hall and her service dog lived in the Versailles apartments in Towson, Maryland from 2005 until 2011. During this time Hall used a storage unit to store things for her service dog. In 2009, Greystar Management Services (GMS) acquired Versailles and in August 2010, GMS told Hall her use of the storage unit created a fire code violation. Hall then asked for a three-bedroom apartment so she would have space to keep her dog's things.

While Hall was waiting on the requested three-bedroom, in December 2010, GMS removed Hall's property from the storage unit and placed it in dumpsters. GMS also informed Hall that her lease would not be renewed. She was instructed to vacate her apartment by April 30, 2011. In February 2011, Hall filed complaints with the Department of Housing and Urban Development (HUD), the U.S. Department of Justice, and the Maryland Commission on Civil Rights. After the complaints were filed, GMS told Hall there were no three-bedroom units available. After the April 30, 2011 deadline, Hall continued to rent her apartment on a month-to-month basis while looking for a new apartment.

GMS won a tenant holding over action against Hall and obtained an eviction order in Baltimore County District Court. On November 10, 2011, Hall's appeal was denied so she filed for a stay of enforcement pending a review of the decision by another judge. In the meantime, the movers Hall had hired told her they would not be able to move her things until December. Hall paid the rent for December 2011 and GMS accepted the payment. On or about November 30, 2011, the Circuit Court for Baltimore County denied Hall's motion for stay of enforcement. The next day, GMS had workers remove approximately 15,000 pounds of Hall's belongings. Some of the items were taken to a landfill.

In November 2013, Hall filed suit against GMS, the PSN Landscaping workers who removed her belongings, and Baltimore County Sheriff Lieutenant Richard Kelly, who supervised the eviction. The district court granted the defendants' motions to dismiss. In July 2014, Hall filed motions to alter or amend judgment and for leave to file an amended complaint. The motions were denied by the district court and the amended complaint was found to be "futile on all counts." Specifically, Hall's amended complaint failed to allege a causal connection between the protected activity (filing discrimination complaints) and the adverse action. The court found the amended complaint also failed to allege discriminatory intent. The district court also dismissed Hall's amended conversion claim as futile finding that it failed to "include a plausible claim for damages" and failed to identify the damages for the property removed prior to eviction. Hall appealed this decision.

First, the United States Court of Appeals for the Fourth Circuit found that the district court did not abuse its discretion in denying Hall's motion to amend her retaliation claim. For a retaliation claim, Hall needed to establish that 1) she was engaged in protected activity, 2) GMS was aware of that activity, 3) GMS took adverse action against her, and 4) a causal connection existed between the protected activity and the asserted adverse action. The Fourth Circuit found that Hall satisfied three of these prongs (she was engaged in a protected activity, GMS was aware of that activity, and GMS "acted with malice" when disposing of Hall's property). However, Hall's amended complaint failed to show that GMS took action because of her protected activity; there was no causal connection. Instead the complaint left open for speculation the cause for GMS's decision to destroy her property. Hall's complaint asked the court to infer retaliation, in response to Hall filing the complaints, as the cause for GMS's decision to destroy her property. The court could not infer retaliation from the destruction of the property in the storage unit because it occurred before Hall's protected activity. The court was also unable to infer retaliation from the destruction of the property removed from her apartment because there was a ten-month lapse between Hall's protected activity (filing the HUD complaint in February 2011) and GMS's adverse action (destroying her property from the apartment in December 2011).

Next, the Fourth Circuit considered the district court's denial of Hall's motion to amend the conversion claim. The Fourth Circuit found the issue identified by the district court--that Hall pleaded the same amount of damages in her original and amended complaint despite the court's finding that some property was abandoned--raised an issue of fact on the question of damages. This issue of fact could not be resolved on a motion to dismiss. The Fourth Circuit then examined whether Hall's complaint contained sufficient facts to state a claim of conversion against each defendant. Hall alleged that PSN, directed by GMS's attorney, removed file boxes from in and around Hall's vehicle, her housekeeper's vehicle and her attorney's vehicle. This property was placed on PSN's trucks and taken to a landfill where it was destroyed. The Fourth Circuit found that these facts "nudge Hall's conversion claim against GMS and PSN across the line from conceivable to plausible." The court thus found that the district court did abuse its discretion in denying the motion to amend the conversion claim against GMS and PSN. However, nothing in Hall's complaint alleged that Lieutenant Richard Kelly exerted ownership over her property so she failed to state a claim against Kelly. Hall's final claim was not considered because she failed to raise the issue in the lower court.

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

Panel: Judges Motz, Gregory, and Harris

Argument Date: 10/27/15

Date of Issued Opinion: 01/21/16

Docket Number: No. 14-2145

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

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Leslie Robert Stellman, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellant. Michael William Skojec, BALLARD SPAHR LLP, Baltimore, Maryland; Andrew Martin Battista, ANDREW M. BATTISTA, P.A., Towson, Maryland; Michele J. McDonald, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Adam E. Konstas, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellant. Michelle M. McGeogh, BALLARD SPAHR LLP, Baltimore, Maryland, for Appellee Greystar Management Services, L.P. Brian E. Frosh, Attorney General of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee Richard Kelly.

Author of Opinion: Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/08/2016 10:42 AM     4th Circuit     Comments (0)  

February 2, 2016
  United States v. Vernace - Second Circuit
Headline: Second Circuit Affirms the RICO Conviction of Gambino Crime Family Boss

Area of Law: Criminal

Issue Presented: Whether the evidence presented at trial regarding defendant's role in 30-year-old murders and drug trafficking for Gambino crime family was sufficient to sustain the defendant's conviction under the Racketeering Influenced and Corrupt Organizations Act ("RICO").

Brief Summary: Defendant Bartolomeo Vernace was convicted following a jury trial of: (1) conspiring to engage in a racketeering enterprise, in violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c)-(d); 2) using, carrying and possessing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), and 3) operating an illegal gambling business, in violation of 18 U.S.C. § 1955, based upon his role in the 30-year old murders of the owners of Shamrock Bar in Queens, New York (the "Shamrock Murders"). During his trial in the United States District Court for the Eastern District of New York, evidence was presented that Vernace was a member of the Gambino crime family, one of five organized crime families operating at that time in New York City, and that the Gambino crime family engaged in a pattern of criminal enterprises in order to generate money for its members. The trial also established that, at the time of his arrest in 2011, Vernace was a member of the Gambino crime family's three person ruling panel, which placed him in charge of the operations of the organization.

The District Court entered judgment against Vernace and Vernace appealed, claiming that the evidence was insufficient for the jury to find that the predicate Shamrock Murders and additional heroin distribution offenses were related to the RICO conspiracy and that he was convicted under the wrong firearms statute. He also argued that newly discovered evidence mandated a new trial. The United States Court of Appeals for the Second Circuit rejected each of Vernace's arguments and affirmed.

To read the full opinion, please visit http://www.ca2.uscourts.gov/de...7bb3e7ad327/1/hilite/

Extended Summary:
RICO laws are designed to combat organized crime by making it unlawful to engage in a "pattern of racketeering activity." To prove a RICO violation, the government must establish a pattern of at least two predicate racketeering acts, such as murder or drug trafficking, that occur within ten years of each other. In order to prove that the predicate acts constitute a pattern of criminal activity, they must have the "same or similar purposes, results, participants, victims, or methods of commission." However, the government is not required to prove that the predicate offenses were committed in furtherance of the of the organization's activities. At trial, the jury found that Vernace's involvement in the Shamrock Murders and his drug distribution in early 1981 served as the two predicate racketeering acts to convict him of the RICO charge.

On appeal, Vernace argued that there was insufficient evidence to support a RICO violation, since the Shamrock Murders were not related to the activities of the Gambino crime family. The Second Circuit rejected this argument and found that the evidence was sufficient for the jury to infer that the Vernace's participation in the Shamrock Murders was related to the Gambino family's organized crime activities. The Court noted that the Shamrock Murders had occurred as a result of a perceived insult to Gambino associate, Frank Riccardi. Riccardi then contacted Vernace and another Gambino member. All three men then proceeded to the Shamrock Bar and killed the two victims. The Court found that the jury could reasonably
conclude from this evidence that Vernace participated in the Shamrock Murders in order to preserve the Gambino family's reputation as well as his own.

Vernace also argued that the government failed to establish that his alleged heroin distribution in early 1981 had been related to the Gambino crime family. However, the Court rejected this argument, finding that members of the Gambino family were known to distribute drugs in order to increase the profit of their criminal enterprise. As such, it was reasonable for the jury to conclude that the defendant's alleged heroin distribution related to the Gambino crime family.

Vernace next argued that he was convicted and sentenced under an incorrect version of § 924(c), which makes it a crime to use or unlawfully carry a firearm in relation to a felony. Specifically, he argued that the district court erred in applying the recently amended version of § 924(c), which carries a mandatory consecutive sentence, rather than the version that had been in effect in 1981. The Second Circuit concluded that even if the district court erred, the error was harmless as Vernace was sentenced to life imprisonment on the RICO count alone.

Finally, the Second Circuit found that Vernace was not entitled to a new trial on the basis of newly discovered evidence. After the trial, the government had informed the defense that one of the government's witnesses had violated his cooperation agreement. Vernace claimed that this revelation warranted a new trial since the defense could have used this information to impeach the cooperating witness' testimony. The Second Circuit rejected this argument, pointing out that the witness was impeached on a number of prior crimes, and this revelation would not have impacted the outcome of the trial. As such, the district court did not abuse its discretion in refusing to grant Vernace a new trial.

To read the full opinion, please visit http://www.ca2.uscourts.gov/de...7bb3e7ad327/1/hilite/

Panel: Judges Sack, Chin, and Droney

Argument Date: 9/18/2015

Argument Location: New York, New York

Date of Issued Opinion: 2/2/2016

Docket Number: 14-2197-cr

Decided: Affirmed

Case Alert Author: Brian Byrne

Counsel: M. Kristin Mace, Assistant United States Attorney (David C. James, Amy Busa, Evan M. Norris, Amir H. Toossi, Assistant United States Attorneys, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee. Seth Ginsberg, Law Office of Seth Ginsberg, New York, New York, for Defendant‐Appellant.

Author of the Opinion: Judge Chin

Circuit: Second Circuit

Case Alert Circuit Supervisor:
Professor Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 02/02/2016 07:39 PM     2nd Circuit     Comments (0)  

  Simon v. Republic of Hungary
Headline: D.C. Circuit allows suit by Hungarian Holocaust victims to proceed

Area of Law: Foreign Sovereign Immunities Act

Issue(s) Presented: Whether Hungarian nationals can bring claims against the Hungarian government under the Foreign Sovereign Immunities Act for injuries and expropriation of property suffered during World War II.

Brief Summary: Plaintiffs, fourteen survivors of the Hungarian Holocaust, sued the Hungarian government and the state-owned Hungarian railroad alleging that the defendants collaborated with the Nazis to exterminate Hungarian Jews and expropriate their property near the end of World War II. The complaint asserted a variety of causes of action ranging from conversion and unjust enrichment to false imprisonment, torture, and violations of international law. Plaintiffs sought class certification and compensatory and punitive damages, as well as various forms of equitable relief. Defendants moved for dismissal, arguing that the treaty exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1603 et seq., barred plaintiffs' claims because the 1947 Peace Treaty between Hungary and the Allied Powers (including the United States) created a mechanism for Hungarian nationals to seek restitution from the Hungarian government for property rights and interests taken from Holocaust victims, and that any action in U.S. courts seeking recovery for confiscated property necessarily amounted to a challenge to the adequacy of Hungary's compliance with its treaty obligations, a challenge that could only be pursued through the dispute resolution process provided for in the treaty. The U.S. District Court for the District of Columbia agreed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that the treaty exception did not apply and that some of plaintiffs' claims could proceed under FSIA's expropriation exception, 28 U.S.C. § 1605(a)(3), which creates an exception to foreign sovereign immunity for claims involving property "taken in violation of international law." The court concluded that the treaty exception did not bar plaintiffs' claims in this instance because, while the 1947 Peace Treaty imposed an obligation on Hungary to provide a means for its own citizens to seek recovery for wartime wrongs, it did not include language designating the dispute resolution process set out in the treaty as the exclusive means of resolving war-related claims. In the absence of such language, the court determined that the treaty could not be read to prevent Hungarian citizens from bringing claims outside the treaty.

The court further held that claims directly implicating plaintiffs' rights in property could proceed under the expropriation exception. Remanding to the district court to determine "precisely which of the plaintiffs' claims directly implicate property interests or rights to possession," the court determined that the "systematic, wholesale plunder of Jewish property" to which the plaintiffs, along with nearly half a million other Hungarian Jews, had been subjected, amounted to genocide, a clear violation of international law under article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide 78 U.N.T.S. 277 (Dec. 9, 1948). The court rejected defendant's contention that the expropriations of property fell within the "domestic takings rule," under which a foreign sovereign's expropriation of the property of its own nationals does not violate international law, finding the rule wholly inapplicable to the unique circumstances of this case, in which genocide constituted the relevant international law violation.

Judge Henderson concurred, writing separately to "emphasize the baselessness of Hungary's invocation of the Foreign Sovereign Immunities Act."

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/14-7082-1596075.pdf.

Panel: Henderson, Srinivasan, Wilkins

Argument Date: March 10, 2015

Date of Issued Opinion: January 29, 2016

Docket Number: 14-7082

Decided: Reversed

Case Alert Author:
Ripple Weistling

Counsel: Paul G. Gaston, Charles S. Fax, Liesel Schopler, L. Marc Zell, and David H. Weinstein.for appellants.

Konrad L. Cailteux and Gregory Silbert for appellees.

Author of Opinion: Srinivasan

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 02/02/2016 08:27 AM     DC Circuit     Comments (0)  

February 1, 2016
  W. Scott Harkonen, M.D., v. United States Department of Justice and United States Office of Management and Budget - Ninth
Headline: 9th Cir. affirms district court's 12(b)(6) dismissal of action seeking the correction of allegedly false statements the United States Justice Department made about plaintiff in a press release.

Area of Law: Constitutional Law; Information Quality Act
Issues Presented: Whether the Information Quality Act confers the right to judicial review of the Department of Justice's refusal to correct allegedly false and misleading information published by the agency in a press release.

Brief Summary:
Plaintiff, a doctor, was convicted of mail fraud for issuing a press release which promoted a new drug with allegedly false and misleading statements. On the day of plaintiff's conviction, the Department of Justice ("DOJ") issued its own press release that plaintiff alleged to contain false and misleading information. Plaintiff filed suit in district court claiming he was entitled to a redaction of the allegedly false information and removal of the press release from all official government websites under the Information Quality Act ("IQA"). The IQA required government agencies to create guidelines for ensuring that information disseminated is reliable and procedures for correcting previously disseminated false or misleading information. The district court granted the government's 12(b)(6) motion.

The Ninth Circuit panel affirmed the district court's dismissal because the DOJ had excluded all press releases from its guidelines for complying with the IQA. This exclusion was found a proper exercise of the agency's power to interpret the IQA. First, Congress did not unambiguously intend that press releases must be included in their definition of "dissemination". Second, DOJ guidelines closely mirrored the guidelines established by the Office of Management and Budget ("OMB"), which took careful consideration and used input from several sources when making its decision to exclude press releases.

Significance: This holding limits the scope of the Information Quality Act by allowing government-agencies to completely exclude press releases and related communications, and those agencies therefore have no obligation to correct false information released in such a manner.

Extended Summary:

Plaintiff W. Scott Harkonen is a medical doctor who served as the Chief Executive Officer for InterMune, Inc., which developed, marketed and sold drugs. One of these drugs, Actimmune, was approved by the FDA for the treatment of two rare disorders. InterMune then sought to determine whether Actimmune would be effective treating patients with idiopathic pulmonary fibrosis ("IPF"), a different disorder which is more common. After a Phase III clinical trial with 330 patients, the FDA staff told Harkonen that the data was insufficient to grant approval for the use of Actimmune in the treatment of IPF. The data was insufficient because the study did not meet its primary endpoint, as Actimmune had failed to reduce death or disease progression in the entire group of treated subjects.

Harkonen thereafter distributed a press release titled, "InterMune Announces Phase III Data Demonstrating Survival Benefit of Actimmune in IPF." The first paragraph stated that the study, "demonstrate[d] a significant survival benefit in patients with mild to moderate disease randomly assigned to Actimmune versus control treatment" and concluded, "[t]here was also approximately a 10% relative reduction in the rate of progression-free survival associated with Actimmune versus placebo, the trial's primary endpoint, but this was not a statistically significant difference." The third paragraph of the press release quoted Harkonen as stating, "Actimmune may extend the lives of patients suffering from [IPF]." The fourth paragraph quoted a study investigator as stating, "Actimmune should be used early in the course of [IPF] in order to realize the most favorable long-term survival benefit." In the sixth paragraph the press release finally again addressed the failure of the study to reach its primary endpoint when it described the failure as demonstrating "a strong positive trend in increased survival in the overall patient population." Finally, in the tenth paragraph the release quoted an InterMune officer as stating, "[W]e believe [there] is compelling rationale for consideration of Actimmune for the treatment of patients with [IPF]".

Harkonen was indicted on one count of wire fraud for allegedly false statements contained in the press release, and one count of felony misbranding related to alleged off-label marketing and sale of Actimmune for IPF. He was convicted of wire fraud and acquitted for the misbranding count. His conviction was affirmed upon appeal.

On the day Harkonen was convicted, the DOJ issued a press release titled, "W. Scott Harkonen, Former Biotech CEO, Convicted of Wire Fraud." The DOJ press release stated, "Mr. Harkonen lied to the public about the results of a clinical trial and offered false hope to the people stricken with a deadly disease," and also stated, "[t]he actions of this defendant served to divert precious financial resources from the VA's critical mission of providing healthcare to this nation's military veterans." The press release was posted on the DOJ website.

The IQA required the OMB to draft guidelines "that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information . . . disseminated by Federal agencies . . . ." The IQA also required each agency set up its own agency-specific guidelines and to "establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines . . . ." OMB published a set of guidelines which, after receiving input from sources including several Federal Agencies, excluded information distributed through press releases from its definition of "dissemination".

DOJ then issued its own agency-specific guidelines, which closely mirrored the OMB guidelines, and do "not apply to information disseminated in . . . press releases [sic] fact sheets, press conferences or similar communications (in any medium) that announce, support or give public notice of information in DOJ." DOJ expressly stated that their agency-specific guidelines are not regulations and are not legally enforceable.

During the appeal of his conviction for wire fraud, Harkonen filed multiple requests with DOJ requesting a retraction of the statements that he falsified test results and he diverted financial resources, and removal of the press release from official government websites. DOJ denied all of the requests, maintaining that the statements were either true or outside the scope of the guidelines.

Harkonen filed a complaint in the U.S. District Court for the Northern District of California, seeking a declaratory judgment and permanent injunction requiring retraction and removal of the press release from official government websites. The district court granted the government's motion to dismiss under Rule 12(b)(6) and Harkonen appealed.

The panel only decided whether the exclusion of press release from the coverage of the IQA guidelines were within the DOJ's and OMB's authority.

The panel analyzed the authority of the government agencies using the two-step framework established by Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). First, if Congress "has directly spoken to the precise question at issue . . . the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Second, if a statute is ambiguous with respect to a specific issue, the question is whether the agency's answer is based on a permissible construction of the statute. This means the administrative regulation will be upheld "unless it is arbitrary, capricious, or manifestly contrary to the statute." Defenders of Wildlife v. Browner, 191 F.3d 1159, 1162 (9th Cir. 1999).

In deciding whether Congress intended to include press releases in the guidelines, the panel started with the plain meaning of the statute. The IQA does not define the word "disseminated", and there is no relevant discussion in the legislative history. The structure of the IQA shows that Congress was concerned with information shared by government agencies and access to information possessed by government agencies. These concerns do not express an intent for the guidelines to apply to all information released by the government. The D.C. circuit is the only other circuit to hear the issue and it held that the definition of "disseminated" was left to the discretion of the OMB. Prime Time Int'l Co. v. Vilsack, 599 F.3d 678, 685 (D.C.C. 2010). The panel here agreed, found that the statute was not unambiguous as to the definition of "disseminated" and proceeded to the second step of the analysis.

In deciding whether the OMB and DOJ's exclusion of press releases from the coverage of the IQA was arbitrary or capricious, the panel noted that government agencies make extensive use of press releases. OMB balanced concerns that the "nternet enables agencies to communicate information quickly and easily to a wide audience . . . [which] increases the potential harm that can result from the dissemination of information that does not meet basic information quality guidelines" with the costs of information quality, and considered input from various sources, before making the exclusion. Given the deference provided to agencies in the interpretation of ambiguous statutes and the careful consideration taken by OMB, the panel found that excluding press releases from the IQA guidelines was a "permissible interpretation of the statute".

Lastly, the panel acknowledged that the DOJ's determination that the 2009 press release fell within its exclusion is neither erroneous not inconsistent with the department guidelines, and therefore is entitled to judicial deference. Auer v. Robbins, 519 U.S. 452, 461 (1997). The panel affirmed the district court decision to grant the government's 12(b)(6) motion and dismiss the matter.

To read the full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/09/08/13-15197.pdf

Panel: John T. Noonan, William A. Fletcher, and Andre M. Davis (sitting by designation), Circuit Judges.

Argument Date: March 9, 2015

Date of Issued Opinion: September 8, 2015

Docket Number: 13-15197 (D.C. No. 4:12-cv-00629-CW)

Decided: Affirmed district court decision to dismiss on 12(b)(6) grounds.

Case Alert Author: Matthew J. Gustin

Counsel:
For plaintiff-appellant: Mark E. Haddad (argued), Sidley Austin LLP, San Francisco, California; Coleen Klasmeier and Kathleen M. Mueller, Sidley Austin LLP, Washington D.C.

For defendants-appellees: Melissa N. Patterson (argued) and Alisa B. Klein, Appellate Staff Attorneys, Melinda Haag, United States Attorney, and Stuart F. Delery, Assistant Attorney General, United States Department of Justice, Civil Division, Washington D.C.

Author of Opinion: John T. Noonan, Circuit Judge

Circuit: Ninth

Case Alert Circuit Supervisor:
Ryan T. Williams

    Posted By: Ryan Williams @ 02/01/2016 08:36 PM     9th Circuit     Comments (0)  

  United States v. Allen
Case Name: United States v. Allen

Headline: Second Circuit Weighs in on Circuit Split, Ruling That Officers Must Obtain a Warrant Before Summoning a Suspect to the Door of his Home and Arresting Him

Area of Law:
Criminal Procedure - Fourth Amendment

Issue(s) Presented: Whether the Fourth Amendment permits warrantless "across the threshold" arrests in which law enforcement officers, while remaining outside a suspect's home, summon the suspect to the doorway and then arrest him.

Brief Summary: Dennis B. Allen Jr., was arrested after police officers - following up on an assault complaint - went to his apartment with the intention of arresting him for assault. They never sought a warrant for his arrest. Instead, the officers simply knocked on his door, and requested that Allen speak with them. Allen spoke with them for several minutes, remaining inside his house while the officers stood on the sidewalk. The officers then told Allen that he would need to come down to the police station to be processed for the assault. He asked them if he could go upstairs to put on shoes and advise his daughter that he was leaving; the officers said that he could only do so if accompanied by them. Upon accompanying him upstairs, they saw drug paraphernalia on his person and in the house, and then applied for and obtained a search warrant. While executing that warrant, the officers found a hand gun and more drug paraphernalia. He was ultimately charged with being a felon in possession of a firearm, and entered a conditional guilty plea to the charge in the United States District Court for the District of Vermont. On appeal, Allen challenged the district court's refusal to suppress the firearm as well as the statements he had made, arguing that both were fruits of a warrantless in-home arrest. The Second Circuit agreed, reversing the denial of the suppression motion, vacating the conviction, and remanding for further proceedings. "[W]hen officers approach the door of the resident, announce their presence, and place the occupant under arrest when he or she, remaining inside the premises, opens the door in response to the police request, the arrest occurs inside the home, and therefore requires a warrant," explained the court. To read the whole decision, please visit http://www.ca2.uscourts.gov/de...1ec0d2f218c/3/hilite/

Extended Summary: On July 25 or 26, 2012, the Springfield, Vermont Police Department received a written complaint that on July 23, Dennis Allen had assaulted John Johnston. On July 27, four Springfield police officers went to Allen's apartment with a pre-formed plan to arrest him for the alleged assault. Despite having probable cause, and two days, the officers did not seek a warrant for Allen's arrest. The officers knocked on Allen's door, and Allen came down to speak to the officers, but remained "inside the threshold" while the officers stood on the sidewalk. Allen said he did not assault Johnston, but he had received numerous phone calls from him. Allen then showed the officers his call log. The officers then told Allen he needed to come down to the police station to be processed for assault. Allen said he needed to get his shoes and tell his 12-year-old daughter he would be leaving. The officers followed him inside, where they asked him if he had anything in his pockets. Allen took out several items, including seven bags of marijuana. Officers also saw various drug paraphernalia. Based on the drug paraphernalia that they saw inside the apartment the officers obtained and executed a warrant. While executing the warrant, the officers found a handgun and various drug paraphernalia. Allen was then rearrested on the federal charge of being a felon in possession of a firearm.

After Allen was indicted by a federal grand jury, he moved to suppress the firearm, and the statements he made, contending that both were fruits of a warrantless in-home arrest in violation of the Fourth Amendment. The district court denied Allen's motion. The district court concluded that while Allen was arrested inside the threshold of his apartment, the officers were outside on the sidewalk. The court further reasoned that because Allen submitted to the officer's authority once he asked permission to receive his shoes and say goodbye to his daughter. The court then found that the police summoning Allen to his threshold did not trigger the rule announced by the Supreme Court in Payton v. New York. There, the Court held that police violated the Fourth Amendment by physically entering a home without a warrant to effect an arrest. The Payton Court went on to explain that officers can violate Payton when, in the absence of exigent circumstances or consent, they physically enter protected premises to effect a warrantless search or arrest.

The Second Circuit concluded that the underlying reasoning of Payton applied here. "If the rule of Payton, and the fundamental Fourth Amendment protection of the home on which it is based, are to retain their vitality, the rule must turn on the location of the defendant, not the officers, at the time of the rest," the court explained. Here, Allen never left his house, and the offices "asserted their power over him inside his home." In so holding, the Second Circuit rejected the conclusion of several other circuits - including the Eleventh, Seventh, and Fifth Circuits - that unless the police themselves cross the threshold of the home before arresting a suspect, a warrant is not required.

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

Argument Date: December 5, 2013

Argument Location: New York, NY

Date of Issued Opinion: January 29, 2016

Docket Number: No. 13-3333-cr

Decided: Vacated and Remanded

Case Alert Author: Elizabeth Perreca

Counsel: David L. McColgin, Assistant Federal Public Defender, for Michael L. Desautels, Federal Public Defender for the District of Vermont, Burlington, Vermont, for Defendant-Appellant
William B. Darrow, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, Vermont, for Appellee.

Author of Opinion:
Judge Gerard E. Lynch

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 02/01/2016 03:05 PM     2nd Circuit     Comments (0)  

January 28, 2016
  Citizens in Charge v. Husted -- Sixth Circuit
Case name: Citizens in Charge, Inc. v. Jon Husted

Headline: Secretary of State Maintains Qualified Immunity for Enforcing Law Despite Unconstitutionality

Area of law: Qualified Immunity; Enforcement

Issue presented: Does a Secretary of State's enforcement of a properly enacted and presumptively constitutional statute expose him to personal liability when the law is held to be unconstitutional?

Brief summary: Ohio, like many states, adopted an initiative process that permitted individuals or groups to propose new legislation and constitutional amendments to be placed on the ballot. But the law required that all signature gatherers be Ohio residents. A group of citizens challenged the residency requirement on First and Fourteenth Amendment grounds. The citizens also sought to enjoin enforcement of the new law and to hold Ohio's Secretary of State personally liable (for several thousand dollars) for enforcing it. The district court declared the law unconstitutional, enjoined enforcement of it, and denied the Secretary's qualified-immunity defense. The Secretary appealed, challenging the qualified-immunity ruling but not the injunction. The Sixth Circuit reversed, holding that the Secretary of State was entitled to qualified immunity because the Ohio Legislature made several changes to the statute's signature-gathering requirements since it was last addressed by the court and because the Secretary had no clearly established duty to decline enforcement of this properly enacted and presumptively constitutional statute.

Extended summary: The Ohio General Assembly enacted a provision in 2013 that said: "Except for a nominating petition for presidential electors, no person shall be entitled to circulate any petition unless the person is a resident of this state and is at least eighteen years of age." Ohio Rev. Code § 3503.06(C)(1)(a). Shortly after the provision took effect, counsel for three nonprofit organizations wrote to the Secretary of State, asking whether he planned to enforce the statute. The Secretary responded that although "a court may ultimately find this law unconstitutional, that determination is a decision for the judicial branch, not the Secretary of State. As a result, this office and county boards of election will implement this law like any other until such time as the legislature acts to make a statutory change or a court directs otherwise."

At that point, one of the nonprofit groups hired a firm to help gather signatures for an initiative petition, paying a higher-than-usual fee to ensure that the firm hired in-state signature gatherers. Then all three nonprofit organizations, along with one of their members, sued the Secretary of State in federal court. They sought a declaration that the petition-circulator residency requirement was unconstitutional, an injunction prohibiting its enforcement, and damages against the Secretary of State "as compensation for extra petition circulation charges." The Ohio Attorney General intervened to defend the law's constitutionality on behalf of the State, and the Secretary of State argued that qualified immunity protected him from the damages claim. The district court disagreed, granting the permanent injunction and denying the qualified-immunity motion. On appeal, the Secretary of State challenged the qualified-immunity ruling but not the injunction.

The Sixth Circuit explained that qualified immunity protects public officials from liability for money damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Public officials are eligible for qualified immunity if (1) they did not violate any constitutional guarantees or (2) the guarantee, even if violated, was not "clearly established" at the time of the alleged misconduct. Both inquiries, the court noted, are "objective," as they turn on what the law is today and whether it was clearly established at the time of the challenged action.

Looking to Supreme Court precedent, the Sixth Circuit pointed out that public officials should generally receive qualified immunity when enforcing properly enacted laws. Generally, "[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality - with the possible exception of a law so grossly and fragrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." In fact, the Supreme Court has never denied qualified immunity to a public official who enforced a properly enacted statute that no court had invalidated. The Sixth Circuit observed that it is not good practice to have public officials second-guess legislative decisions and that this particular election statute was not a "grossly and flagrantly unconstitutional" law.

The court also noted conflicting judicial opinions on the matter of residency requirements in the Tenth Circuit and the Eighth Circuit. The Sixth Circuit thus reasoned that since judges can reasonably disagree about the meaning of the Constitution, courts should not punish public officials for reasonably taking a position.

The citizens argued that the Sixth Circuit's decision in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008) was sufficient to place the Secretary of State on notice of the unconstitutionality of the Ohio statute because that decision invalidated residency and registration requirements of the same statute. But the Ohio General Assembly had amended those provisions in response to the Nader decision and passed the new version of the law in 2013. Thus, the Nader decision did not give the Secretary notice of the new statute's constitutional shortcomings.

While the citizens cited other out-of-circuit cases that had struck down petition-circulator residency requirements, these cases engaged in fact-intensive analyses to determine that the specific residency requirements at issue were unconstitutional. So they also did not put the Secretary of State on notice that Ohio's revised law was clearly invalid, especially when the Eighth and Tenth Circuits had issued conflicting decisions on the same issue.

Ultimately, at the time the Secretary of State acted, no court had declared this residency requirement unconstitutional, and he acted reasonably in saying he would enforce it. When public officials implement validly enacted state laws that no court has invalidated, their conduct typically is considered reasonable. Because the Secretary of State acted in the face of a duly enacted, presumptively constitutional law and had no on-point decision declaring it unconstitutional, he did not violate clearly established law or otherwise act unreasonably. Therefore, the Sixth Circuit reversed the district court's decision and remanded the case so that summary judgment could be granted to the Secretary of State based on qualified immunity.

Panel: Chief Judge R. Guy Cole; Circuit Judge, Jeffrey Sutton; and District Judge Robert Bell.

Date of issued opinion: 1/19/2016

Docket number: 15-3447

Decided: Reversed and remanded.

Counsel: ARGUED: Ryan L. Richardson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Maurice A. Thompson, 1851 CENTER FOR CONSTITUTIONAL LAW, Columbus, Ohio, for Appellees. ON BRIEF: Ryan L. Richardson, Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Maurice A. Thompson, 1851 CENTER FOR CONSTITUTIONAL LAW, Columbus, Ohio, for Appellees.

Author of opinion: Circuit Judge Jeffrey Sutton

Case alert author: Luciana Viramontes

Case Alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0013p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 04:25 PM     6th Circuit     Comments (0)  

  The Estate of Ronald Armstrong v. Village of Pinehurst -- Fourth Circuit
Tread Carefully with Taser: Court Limits Officers' Use of Tasers in Non-Violent Situations

Areas of Law: Civil Rights, Criminal Procedure

Issues Presented: Whether Pinehurst police officers used excessive force in their encounter with Ronald Armstrong, and if so, whether their actions are protected by qualified immunity.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that Pinehurst officers were protected by qualified immunity for their actions that led to the death of Ronald Armstrong. While the court did hold that the officers used excessive force when they "tased" Armstrong five times and pushed him to the ground, the Court found that the right to not be "subjected to tasing while offering stationary and non-violent resistance" was not sufficiently settled at the time such that every reasonable officer would have understood the right to exist. Because the right was not settled at the time, the Fourth Circuit upheld the District Court's grant of summary judgment for the officers.

Extended Summary: Ronald H. Armstrong suffered from paranoid schizophrenia and bipolar disorder. On April 23, 2011, Armstrong stopped taking his prescribed medication and began harming himself. Fearing for his safety, Armstrong's sister convinced Armstrong to check in to a local hospital. Armstrong eventually left the hospital and the examining doctor issued an involuntary commitment order, deeming Armstrong "mentally ill and dangerous to self" but not dangerous to others, on the commitment form.

Pinehurst police officers Gatling, McDonald, and Sheppard responded to the scene and found Armstrong wandering in an intersection near the hospital. The officers, along with two hospital security guards and Armstrong's sister, convinced Armstrong to leave the roadway and engaged him in conversation until the commitment order was finalized. Under North Carolina law, the officers were required to wait until the commitment order was finalized before taking action. Once the order was completed, the officers advanced on Armstrong and he wrapped his arms and legs around a nearby stop sign post. Officers attempted to pull Mr. Armstrong off the post for approximately 30 seconds, but were unsuccessful.

After this initial attempt, the officers began to utilize other methods to remove Mr. Armstrong from the pole. Officer Gatling utilized his taser - set to "drive stun mode" - five times "over a period of approximately two minutes." Drive stun mode is designed to be "used as a pain compliance tool" and not one that overrides the central nervous system. The tasing was unsuccessful and actually increased Armstrong's resistance, so all five officers pulled Armstrong off the post. Officers subdued Armstrong "by placing a knee on his back and standing on his back," and handcuffed both his arms and legs.

When officers began to collect Mr. Armstrong to return him to the hospital, his sister observed that he had become unresponsive. The officers turned Armstrong over and, saw that his "skin had turned a bluish color and he did not appear to be breathing." Officers radioed for Emergency Medical Services personnel and Armstrong was taken to the hospital's emergency department, but he was pronounced dead shortly after arriving at the hospital. Approximately 6 1/2 minutes passed between the finalization of Armstrong's commitment papers and the call for Emergency Services.

Armstrong's estate filed a complaint against each officer in the Superior Court of Moore County, North Carolina, alleging excessive force in violation of Armstrong's Fourth and Fourteenth Amendment rights. The officers removed the case to the United States District Court for the Middle District of North Carolina. The District Court subsequently held that the officers' use of force was reasonable and granted summary judgment for the officers on those grounds.

Armstrong's estate appealed to the Fourth Circuit, alleging that the officers used excessive force and were not protected by qualified immunity. The Fourth Circuit reversed the District Court on the issue of excessive force and held that the officers' use of force was not reasonable under the totality of the circumstances. However, the court upheld the grant of summary judgment on the grounds of qualified immunity, holding that Armstrong's right not to be tased in those circumstances was not sufficiently established at the time of his death.

The Fourth Circuit considered three factors in weighing the use of force; the factors were listed in Graham v. Connor, 490 U.S. 386, 396 (1989). Those factors were (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting or attempting to evade arrest by flight. The court concluded that these factors, specifically the second and third factors, permitted a limited use of force because of Armstrong's erratic behavior and potential danger to himself, but the level of force used was not objectively reasonable and thus violated Armstrong's Fourth Amendment rights. The court specifically pointed to the use of a taser in a situation that "does not raise a risk of immediate danger" as justification for concluding the officers used unreasonable force.

Nonetheless, the court ultimately upheld the District Court's grant of summary judgment. While the District Court held the officers did not use excessive force, the Forth Circuit concluded that the officers were protected by qualified immunity. In making that decision, the Fourth Circuit considered whether (1) the officers violated Armstrong's constitutional protections, and (2) if so, whether the violated protections were "clearly established" and "within the knowledge of a reasonable person." The court defined the precise right at issue in Armstrong's case to be "Armstrong's right not to be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure."

The Fourth Circuit noted that "substantial case law indicated that [the officers] were treading close to the constitutional line." However, the court drew a distinction between existing case law on non-violent resistance and Mr. Armstrong's case, noting that "[it] would not necessarily have been clear to every reasonable officer that [cases which prohibit using force without first warning an individual who was non-compliant] applied to force inflicted after warning an individual exhibiting non-violent resistance to desist and discontinued before that individual was secured." Because the court found sufficient ambivalence in case law for how to respond to non-violent resistance from a mentally ill patient, the court held that Armstrong's right was not sufficiently established such to deprive the officers of qualified immunity.

Even with this holding, the Fourth Circuit sought to provide clarity in similar situations going forward. The court conducted a lengthy discussion on the use of tasers in varying circumstances, and ultimately concluded that a taser is analogous to a gun or baton and thus "may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser." The court concluded by noting that the officers in Armstrong's case would no longer be protected by qualified immunity if they or other officers use a taser in similar circumstances in the future.

Judge Wilkinson wrote a concurring opinion that joined the decision of the majority but differed in its underlying logic. Judge Wilkinson noted he was "happy" to join the majority in its judgment because the officers' conduct in causing the death of Mr. Armstrong was not the kind "that merited an award of monetary judgment." Judge Wilkinson criticized the majority for "opin[ing] on the merits of the excessive force claim" because the majority's standard "will be of less than limited help to officers wondering what exactly they may and may not do." Ultimately, the judge concluded that Armstrong did in fact pose some danger to himself and others, as shown by the possibility that he could have "bolt[ed] into the street" and caused a fatal accident. He ultimately wrote that the District Court was correct in granting summary judgment on the grounds that the officers did not use excessive force.

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

Panel: Thaker, Keenan, and Wilkinson (concurring)

Argument Date: 10/28/2015

Date of Issued Opinion: 01/11/2016

Docket Number: 15-1191

Decided: Affirmed by published opinion.

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Karonnie R. Truzy, CRUMLEY ROBERTS, LLP, Greensboro, North Carolina, for Appellant. Dan McCord Hartzog, CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: David J. Ventura, CRUMLEY ROBERTS, LLP, Charlotte, North Carolina, for Appellant. Dan M. Hartzog, Jr., CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina; Michael J. Newman, VAN CAMP, MEACHAM & NEWMAN PLLC, Pinehurst, North Carolina, for Appellees.

    Posted By: Renee Hutchins @ 01/28/2016 04:07 PM     4th Circuit     Comments (0)  

  Burniac v. Wells Fargo Bank -- Sixth Circuit
Case name: Donald Burniac v. Wells Fargo Bank, N.A.

Headline: State-Court Injunctions May Not Withstand Removal.

Area of law: foreclosures; enjoinment; assignment of mortgage

Issue(s) presented: May a federal district court issue summary judgment after a state court has issued an injunction? Will an invalid assignment void foreclosure proceedings?

Brief summary: Due to unpaid monthly mortgage payments, a homeowner's home became subject to foreclosure. The homeowner sued Wells Fargo Bank in state court to prevent the foreclosure sale. His complaint alleged, in part, that the assignment of his mortgage from Washington Mutual Bank to Wells Fargo was invalid. The state court purportedly entered a default judgment against Wells Fargo and preliminarily enjoined the foreclosure sale. Wells Fargo removed the case to the federal district court, which later denied the homeowner's motion to remand and granted Wells Fargo's motion for summary judgment. The homeowner appealed, arguing that the district court committed procedural errors and misapplied state substantive law. The Sixth Circuit affirmed, finding no procedural errors or misapplication of state law.

Extended summary: A homeowner and his wife executed a mortgage to secure a loan from Washington Mutual Bank. Wells Fargo Bank acted as servicer of the mortgage and sent the homeowner his monthly mortgage statements. Washington Mutual eventually assigned ownership of homeowner's mortgage to Wells Fargo, although the homeowner disputed the validity of that assignment. After the assignment, the homeowner continued to receive his monthly mortgage statements from Wells Fargo. He sent his mortgage payments to Wells Fargo for several years, until he experienced hardship and stopped making payments. Wells Fargo began foreclosure proceedings on his property, and a foreclosure sale was scheduled.

To prevent the foreclosure sale, the homeowner sued Wells Fargo in state court. The homeowner's complaint asserted, among other claims, that the signatures on the assignment were forged by "robo-signers" or that the signers had no authority to execute the assignment. The next day, the homeowner sought a temporary restraining order, which the state court granted immediately. The state court also set a hearing on the homeowner's request for a preliminary injunction. The parties stipulated to adjourn the hearing, but Wells Fargo did not attend the rescheduled hearing. The state court issued a preliminary injunction in the homeowner's favor.

Later, the homeowner filed a "DEFAULT REQUEST, AFFIDAVIT, AND ENTRY" form asking the court clerk to enter a default against Wells Fargo for its "failure to plead or otherwise defend" the case. Beneath that text were two lines with "Date" and "Court Clerk" captions that were left blank. The state-court docket displayed no other entries concerning a default judgment. Wells Fargo removed the case to federal court on the same day that the homeowner requested the default judgment. No default was ever entered.

The homeowner moved in federal court to remand the case back to state court, but the district court concluded that subject-matter jurisdiction was proper based on diversity of citizenship and denied the motion. The district court later granted Wells Fargo's motion for summary judgment. The homeowner appealed, challenging: (1) procedural errors allegedly committed by the district court, and (2) the district court's substantive-law rulings on summary judgment.

The Sixth Circuit rejected the homeowner's procedural challenges because a default judgment was never entered against Wells Fargo, and the state court's preliminary injunction neither prevented the district court from issuing a summary-judgment order nor required remand of the case to the state court. The Sixth Circuit added that a final order on the merits extinguishes a preliminary injunction.

Likewise, the court held that the homeowner's challenges based on the district court's application of Michigan law failed because, even assuming that Wells Fargo violated Michigan law by way of an invalid assignment, the homeowner had not demonstrated that he was prejudiced by those violations. Specifically, the homeowner could not demonstrate that the alleged assignment irregularities (1) would subject him to double liability, (2) placed him in a worse position to keep his property, or (3) prejudiced him in any other way. Indeed, the purported assignment deficiencies did not cause the homeowner confusion about whom he should pay because, both before and after the assignment, the homeowner received his monthly mortgage statements from the same bank: Wells Fargo. Therefore, the Sixth Circuit affirmed the district court's decision.

Panel: Circuit Judges Richard Moore, Eric Clay, and Ronald Gilman.

Date of issued opinion: January 13, 2016

Docket number: 15-1230

Decided: Affirmed.

Counsel: ARGUED: Carson J. Tucker, THE LAW OFFICES OF CARSON J. TUCKER, Ann Arbor, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees. ON BRIEF: Carson J. Tucker, THE LAW OFFICES OF CARSON J. TUCKER, Ann Arbor, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees.

Author of opinion: Ronald Lee Gilman, Circuit Judge

Case alert author: Luciana Viramontes

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0009p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 03:52 PM     6th Circuit     Comments (0)  

  Kelsey v. Pope -- Sixth Circuit
Case name: Norbert Kelsey v. Melissa Pope

Headline: Off-reservation Offenses Remain Under the Jurisdiction of Tribal Courts.

Area of law: Indian Civil Rights Act; Tribal law

Issue presented: Does a tribal reservation maintain criminal jurisdiction over its members if the offense occurs off the tribal reservation?

Brief summary: A tribal member of the Ottawa Indians (Band) was convicted in tribal court of misdemeanor sexual assault for inappropriately touching a tribal employee at the Band's Community Center. The Community Center is located on land owned by the Band but is not located within the tribal reservation. He appealed his sentence in tribal court, arguing that the tribal court lacked jurisdiction over his off-reservation conduct. When his sentence was affirmed, he filed a petition for habeas relief in United States District Court, arguing lack of jurisdiction and a violation of due-process protections under the Indian Civil Rights Act. The district court granted habeas relief, holding that the Band lacked criminal jurisdiction to try and punish the tribal member's off-reservation conduct, but the district court did not rule on his due-process challenge. The Band appealed, and the Sixth Circuit reversed and held that the Band has jurisdiction because it has the inherent sovereign authority to prosecute members when necessary to protect tribal self-government or control internal relations.

Extended summary: The Band is a federally recognized Indian tribe located in northwest Michigan's Manistee and Mason Counties. Under federal law, Indian tribes "shall retain inherent sovereign power," with "the inherent authority to establish their own form of government, including tribal justice systems." The Band has also implemented a Tribal Constitution. Within the constitution, the Tribal Court is vested with the authority "[t]o adjudicate all civil and criminal matters arising within the jurisdiction of the Tribe or to which the Tribe or an enrolled member of the Tribe is a party."

The Community Center, located just across the street from the reservation, is constructed on land purchased by the Band in fee simple in 1997 but is not within "Indian country" as defined by 18 U.S.C. § 1151. In 2005, the tribal member, then an elected member of the Band's nine-person Tribal Council, made inappropriate physical contact of a sexual nature with an employee of the Band's medical clinic during a meeting at the Community Center. The tribal member was later charged with misdemeanor sexual assault and harassment under its internal criminal laws. In 2008, the Tribal Court convicted the tribal member of sexual assault and sentenced him to six months in jail.

On appeal, the tribal member challenged the Tribal Court's jurisdiction, arguing that the Band lacked authority to exercise criminal jurisdiction over his specific conduct because it occurred outside the Band's Indian country. The Tribal Court of Appeals affirmed tribal criminal jurisdiction over his offense based on the Band's inherent sovereign authority to prosecute its members. It also found that a jurisdictional mandate in the Tribal Constitution required extending jurisdiction to his off-reservation conduct.

The tribal member filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Michigan, making two principal arguments: (1) the Band lacked inherent sovereign authority to assert criminal jurisdiction over his conduct because it occurred outside of the Band's Indian country, and (2) the Tribal Court of Appeals' decision violated his due-process rights under the Indian Civil Rights Act. The district court held that Indian tribes were implicitly divested of criminal jurisdiction over off-reservation member conduct. The Band appealed.

Both parties accepted that, as dependent sovereigns, Indian tribes exercise inherent sovereign authority. The Sixth Circuit therefore assessed the question of extra-territorial criminal jurisdiction by breaking this governing framework into three separate inquiries: (1) Do Indian tribes have inherent sovereign authority to exercise extra-territorial criminal jurisdiction? (2) If so, has that authority been expressly limited by Congress or treaty? (3) If not, have the tribes been implicitly divested of that authority by virtue of their domestic dependent status?

First, the Sixth Circuit observed that a tribe's sovereign authority to punish its members is "a power that this Court has called inherent." The court agreed with the Band's view that tribes have "inherent authority to prosecute tribal members for offenses substantially affecting [tribal] self-governance interests," even when those offenses take place outside Indian country. Furthermore, Indian tribes have the inherent sovereign authority to try and punish members on the basis of their tribal membership.

Second, the court concluded that there is no statute or treaty that expressly divests the Band of its inherent authority to try and punish its members for off-reservation conduct.

Third, while courts have repeatedly restricted tribal criminal jurisdiction over nontribal members, the Supreme Court has consistently affirmed that the "power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status."

Accordingly, the Sixth Circuit held that because prosecuting this tribal member's conduct was "necessary to protect tribal self-government or control internal relations," the Band retained authority to assert criminal jurisdiction over his off-reservation conduct. The Sixth Circuit thus reversed the district court's grant of habeas relief for lack of tribal jurisdiction.

Panel: Circuit Judges John M. Rogers and David W. McKeague, and District Judge Edmund A. Sargus, Jr.

Date of issued opinion: January 5, 2016

Docket number: 14-1537

Decided: Vacated and reversed.

Counsel: ARGUED: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, for Appellant. Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellee. ON BRIEF: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, Dan Himmelfarb, MAYER BROWN LLP, Washington, D.C., for Appellant. Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellee. Eugene R. Fidell, New Haven, Connecticut, John L. Smeltzer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Ruthanne M. Deutsch, GEORGETOWN UNIVERSITY LAW CENTER APPELLATE LITIGATION PROGRAM, Washington, D.C., for Amici Curiae.

Author of opinion: Circuit Judge McKEAGUE

Case alert author: Luciana Viramontes

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0001p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 03:05 PM     6th Circuit     Comments (0)  

  ABA Test 5
Headline: This is a test

Areas of Law: Freedom of Information Act; Administrative Law

Issue(s) Presented: Whether the National Security Council ("NSC") is an "agency" for Freedom of Information Act purposes under 5 U.S.C. § 552(f)(1), either due to its own function or due to the functions of the broader NSC System.

Brief Summary: Plaintiffs-Appellants, a non-profit law firm within the City University of New York School of Law, brought suit against Defendant-Appellee, the National Security Council (the "NSC") following the NSC's rejection of Plaintiffs-Appellants' Freedom of Information Act ("FOIA") requests. Plaintiffs-Appellants had requested "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "[a]ll National Security Council meeting minutes taken in the year 2011." The NSC moved to dismiss the complaint for failure to state a claim on the grounds that it is not an agency subject to FOIA requests.

The United States District Court for the Eastern District of New York agreed with the NSC and dismissed the case on the merits. The Second Circuit affirmed, holding that the NSC, created by Congress and presided over by the President, "is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive." The Second Circuit adopted D.C. Circuit jurisprudence and predicated its holding upon the functions of both the Council and the NSC System, which it held were advisory only and entailed no authority independent of the President.

    Posted By: Kevin Borek @ 01/28/2016 08:51 AM     8th Circuit     Comments (0)  

January 27, 2016
  Main Street Legal Services v. National Security - Second Circuit
Headline: Second Circuit Holds National Security Council Is Not an "Agency" and Thus Not Subject Freedom of Information Act Disclosure Requirements.

Areas of Law: Freedom of Information Act; Administrative Law

Issue(s) Presented: Whether the National Security Council ("NSC") is an "agency" for Freedom of Information Act purposes under 5 U.S.C. § 552(f)(1), either due to its own function or due to the functions of the broader NSC System.

Brief Summary:
Plaintiffs-Appellants, a non-profit law firm within the City University of New York School of Law, brought suit against Defendant-Appellee, the National Security Council (the "NSC") following the NSC's rejection of Plaintiffs-Appellants' Freedom of Information Act ("FOIA") requests. Plaintiffs-Appellants had requested "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "[a]ll National Security Council meeting minutes taken in the year 2011." The NSC moved to dismiss the complaint for failure to state a claim on the grounds that it is not an agency subject to FOIA requests.

The United States District Court for the Eastern District of New York agreed with the NSC and dismissed the case on the merits. The Second Circuit affirmed, holding that the NSC, created by Congress and presided over by the President, "is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive." The Second Circuit adopted D.C. Circuit jurisprudence and predicated its holding upon the functions of both the Council and the NSC System, which it held were advisory only and entailed no authority independent of the President.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...d4993/1/hilite/


Extended Summary: Plaintiffs-Appellants brought suit against Defendant-Appellee, the National Security Council (the "NSC"), following the NSC's rejection of Plaintiffs-Appellants' Freedom of Information Act ("FOIA") requests. FOIA "establishes record retention and disclosure requirements for federal agencies" and mandates that, barring certain exemptions, agencies disclose records not already publically available upon request. Plaintiffs-Appellants had moved to compel the NSC to disclose "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "[a]ll National Security Council meeting minutes taken in the year 2011." The NSC moved to dismiss the complaint for failure to state a claim on the grounds that it is not an agency subject to FOIA requests.

The United States District Court for the Eastern District of New York agreed with the NSC and dismissed the case on the merits. The Second Circuit affirmed, holding that the NSC, created by Congress and presided over by the President, "is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive." The Second Circuit adopted D.C. Circuit jurisprudence and predicated its holding upon the functions of both the Council and the broader NSC System, which it held were advisory only and entailed no authority independent of the President.

In affirming the district court's ruling, the Second Circuit first noted that the FOIA's plain language defining "agency" as any "other establishment in the executive branch of the Government (including the Executive Office of the President)" under 5 U.S.C. § 552(f)(1) had not been strictly construed by the Supreme Court. It then relied upon FOIA's legislative history and the two-prong test enumerated by the Court of Appeals for the District of Columbia (the "D.C. Circuit") in Soucie v. David. Soucie construed the "agency" definition to apply to executive branch entities with "substantial independent authority," but not to those whose "sole function" is to "advise and assist the President."

The Second Circuit noted that the D.C. Circuit, which frequently hears appeals from FOIA request denials, had held on more than one occasion that NSC is not an "agency." The Court went on to accept guidance from the D.C. Circuit's decision in Meyer v. Bush, when that circuit concluded the NSC was not an agency, but conducted its own thorough analysis of the functions of the NSC and the broader NSC System - which includes staff and subcommittees and boards - before concluding that the NSC's sole statutory function is to advise and assist the President and has no independent authority conferred upon it.

In rejecting a series of specific arguments raised by the Plaintiffs to demonstrate NSC's alleged independent authority, the Court noted that, although the NSC formerly directed the Central Intelligence Agency, Congress partially withdrew that authority in 1992, and withdrew the rest of that authority in 2004. The Court also found legislative support for its position that the core function of the broader NSC System was to assist the President through "coordination," by serving as "the means by which the President can secure both the collective national security recommendations of department heads and their cooperation in integrating his policies across various parts of government."

Judge Wesley concurred, writing that, while the conclusion that the NSC is not subject to FOIA requests has implicitly been accepted by Congress in its FOIA amendments and, accordingly, the question of that position's wisdom "is best
considered a political issue for Congress and the President, not for this Court."

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...d4993/1/hilite/


Panel: Circuit Judges Raggi, Wesley, and Lynch

Argument Date: 03/02/2015

Date of Issued Opinion: 01/26/2016

Docket Number: 13‐3792‐cv

Decided: Affirmed

Case Alert Author: Jake B. Sher

Counsel: Ramzi Kassem, Main Street Legal Services, Inc., Long Island City, N.Y., for Plaintiff-Appellee; Jayne Randall Linney, Civil Division, United States Department of Justice, Washington, D.C., for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Defendant‐Appellee.

Author of Opinion: Judge Raggi for majority; Judge Wesley concurring.

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 01/27/2016 07:45 AM     2nd Circuit     Comments (0)  

January 20, 2016
  Trump Entertainment Resorts v. USDC for the District of Delaware - Third Circuit
Headline: Third Circuit Holds Debtors Can Reject Expired Collective Bargaining Agreements Under Bankruptcy Code §1113

Area of Law: Bankruptcy

Issues Presented: Whether a Chapter 11 debtor-employer is able to reject the continuing terms and conditions of a Collective Bargaining Agreement (CBA) under § 1113 of the Bankruptcy Code after the CBA has expired?

Brief Summary: The appellee, Trump Entertainment Resorts (the debtor), filed for Chapter 11 bankruptcy and moved to reject its Collective Bargaining Agreement (CBA) with Unite Here Local 54 (the Union) under 11 U.S.C. § 1113. The bankruptcy court granted the debtor's motion to reject the CBA, finding that the debtor had made good faith efforts to renegotiate the expired CBA and to hold the debtor to the conditions of the CBA would prevent it from reorganizing. The bankruptcy court balanced the equities and held that the equities balanced in favor of rejecting the CBA. The union appealed the bankruptcy court's decision, arguing that its expired CBA is protected under the National Labor Relations Act and the bankruptcy court did not have authority to grant the debtor's motion to reject the CBA. The Third Circuit found that § 1113 applies to both current and expired CBAs. The court further found that the debtor had complied with its obligations under § 1113 in order to reject the CBA to reorganize in light of the bankruptcy. The debtor made a good faith effort to renegotiate the CBA and the Union stonewalled the debtor's efforts throughout the process. The Third Circuit affirmed the bankruptcy court's ruling granting the motion to reject the CBA.

Extended Summary: The appellee, Trump Entertainment Resorts (the debtor), filed for Chapter 11 bankruptcy. Prior to filing for bankruptcy, the debtor attempted to renegotiate its CBA with the appellant, Unite Here Local 54 (the Union). The Union was initially unresponsive and then delayed negotiations with the debtor. Unable to reach an agreement with the Union, and facing the risk of the casino going under which would result in all jobs lost and liquidating the assets, the debtor moved to reject the expired CBA under 11 U.S.C. §1113. The bankruptcy court granted the motion to reject the expired CBA, finding that the balance of equities favored rejecting the CBA.

The Union first challenged whether a bankruptcy court could grant a motion to reject an expired CBA under §1113. The Union argued that expired CBAs are protected under the National Labor Relations Act (NLRA) and the bankruptcy court erred in its interpretation of §1113 because it directly conflicted with the protections under NLRA. The Third Circuit reviewed the bankruptcy court's decision de novo. The court determined that the NLRA yields to §1113 only for reasons that permit the debtor to stay in business. Additionally, the Third Circuit concluded that § 1113 does apply to expired CBAs. Therefore, the bankruptcy court correctly applied the statute in granting the debtor's motion to reject the expired CBA.

In its argument, the Union compared a CBA to an executory contract, contending that under 11 U.S.C. § 365 a debtor cannot reject an executory contract and, therefore, a debtor cannot reject an expired CBA under § 1113. The court disagreed with the Union's argument, noting the important distinction between an executory contract and a CBA. Unlike with an executory contract, a debtor is still bound by the terms and conditions of a CBA even after it has expired. The court stated that under bankruptcy law it is preferable for a debtor to preserve jobs by rejecting a CBA than to lose jobs entirely because it had to comply with an expired CBA. The Third Circuit affirmed the judgment of the bankruptcy court, granting the debtor's motion to reject the CBA.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/144807p.pdf


Panel (if known): Schwartz, Scirica, and Roth, Circuit Judges

Argument Date: March 4, 2015

Date of Issued Opinion: January 15, 2016

Docket Number: No. 14-4807

Decided: The Third Circuit affirmed the judgment of the bankruptcy court holding that a debtor can reject an expired CBA under §1113.

Case Alert Author: Sarah Kiewlicz

Counsel: Kathy L. Krieger, Esquire, Darin M. Dalmat, Esquire, Evin F. Isaacson, Esquire, William T. Josem, Esquire, for appellant; Roy T. Englert, Jr., Esquire, Joshua S. Bolian, Esquire, for appellees Trump Entertainment Resorts; Mark B. Conlan, Esquire, for appellee Official Committee of Unsecured Creditors of Trump Entertainment Resorts; James T. Bentley, Esquire, Lawrence V. Gelber, Esquire, for appellee National Retirement Fund; Allan S. Brilliant, Esquire, G. Eric Brunstand Jr., Esquire, for appellee First Lien Lenders; Diana O. Embree, Esquire, Barbara A. O'Neill, Esquire, Paul A. Thomas, Esquire, for amicus appellant National Labor Relations Board; David M. Bass, Esquire, Michael D. Sirota, Esquire, for amicus appellee 710 Long Ridge Road Operating Company II, LLC, 240 Church Street Operating Company II, LLC, 1 Burr Road Operating Company II, LLC, 245 Orange Avenue Operating Company II, LLC and 107 Osbourne Street Operating Company II, LLC


Author of Opinion: Roth, J.

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 01/20/2016 08:55 AM     3rd Circuit     Comments (0)  

  Josh Finkelman v. National Football League - Third Circuit
Headline: Football Fans Lack Article III Standing to Sue NFL For Alleged Super Bowl Ticketing Violations

Area of Law: Constitutional Law, Article III Standing

Issue Presented: Whether plaintiffs alleged facts that were sufficient to establish constitutional standing for the NFL's alleged ticketing violations when they did not purchase tickets for the Super Bowl through NFL's lottery system or at all?

Brief Summary: Plaintiff/Appellants Josh Finkelman and Ben Hoch-Parker wanted to purchase tickets to Super Bowl XLVIII. Finkelman chose not to enter the NFL lottery for tickets and, instead, purchased two tickets on the resale market for a price higher than face value. Hoch-Parker did not purchase tickets at all. Plaintiffs then brought a class action against the National Football League ("NFL") in the District of New Jersey, alleging that the NFL's ticketing practices violated New Jersey's Ticket Law and resulted in unjust enrichment. The District Court dismissed the case for failure to state a claim. The Third Circuit affirmed the District Court's dismissal of Hoch-Parker's claim for lack of standing. The Third Circuit found that by not purchasing tickets at all, the amount of damages he allegedly suffered was indeterminate and, thus, he lacked standing. The Third Circuit also concluded that Finkelman failed to allege facts sufficient to establish standing under two theories. First, Finkelman failed to establish that but for the NFL's alleged withholding of tickets, he would have been able to purchase a face-price ticket. Additionally, Finkelman failed to establish that he paid a higher price in the resale market due to the NFL's alleged withholding of tickets. Both of these theories rested on speculation, which is insufficient to establish Article III standing. Therefore, because the District Court lacked subject matter jurisdiction to reach Finkelman's claims, the Third Circuit vacated its dismissal on the merits of the Ticket Law and unjust enrichment claims.

Extended Summary: Plaintiffs Josh Finkelman and Ben Hoch-Parker wanted to purchase tickets to Super Bowl XLVIII. Finkelman purchased two tickets on the resale market for a price higher than face value while Hoch-Parker did not purchase tickets at all. Plaintiffs then brought a class action against the National Football League ("NFL") and affiliated entities in the District of New Jersey, alleging that the NFL's ticketing practices violated New Jersey law. Plaintiffs claimed that the NFL's method of selling tickets violated New Jersey's Ticket Law and resulted in unjust enrichment.

New Jersey's Ticket Law limits the number of tickets that can be held back from sale to the general public to five percent of the available seating in any venue or performance. Only one percent of tickets sold were available to the public and the only way to obtain a ticket was to participate in a lottery. However, neither Finkelman nor Hock-Parker ended up entering the lottery and instead Finkelman purchased two tickets for $2,000 per ticket on the resale market.

The District Court dismissed the case for failure to state a claim and Plaintiffs appealed. The District Court concluded that the Ticket Law's five percent limitation on withholding tickets applies solely to tickets that are intended for release to the general public. Here, none of the tickets sold through the lottery were withheld and therefore the NFL did not violate the Ticket Law. The District Court also concluded that Finkelman could not prove causation because he could not demonstrate that he suffered any injuries resulting from the NFL's alleged misconduct since he did not enter the lottery. Additionally, the Court found that Hoch-Parker lacked standing because by not purchasing tickets, or entering the lottery, he could not have suffered any harm. Lastly, the District Court dismissed the unjust enrichment claim because the relationship between Plaintiffs and the NFL was too remote to be viable.

The Third Circuit focused on whether either Plaintiff had standing to sue for the alleged violations. To establish Article III standing, a plaintiff must demonstrate injury-in-fact, causation, and redressability. The Third Circuit concluded that neither Plaintiff had standing to bring the case in federal court because otherwise anyone who purchased a ticket on the resale market would have standing on nothing more than speculative assertions of causation and injury.

Hoch-Parker did not have standing because by not purchasing tickets, the amount of damages he allegedly suffered was indeterminate. Hoch-Parker argued that his injury was the "lost opportunity" he suffered by not being able to attend the Super Bowl, but the Third Circuit rejected that argument. The Third Circuit found that there was an insufficient connection between Hoch-Parker's claimed injury and the challenged conduct of withholding tickets.

Additionally, the Third Circuit concluded that Finkelman failed to allege facts sufficient to establish standing. The Court reasoned that if Plaintiff's theory was accepted, everyone who bought a ticket could sue the NFL for any costs above face price whether they participated in the ticket lottery or not. The Third Circuit also rejected Finkelman's argument that he paid a higher price in the resale market due to the NFL's alleged withholding of tickets. However, there was no way of knowing whether the withholding of tickets had the effect of increasing or decreasing prices on the resale market. Because Finkelman only presented speculation, he failed to establish Article III standing. The Third Circuit then dismissed the appeal for lack of jurisdiction. To view the full opinion, click here: http://www2.ca3.uscourts.gov/opinarch/151435p.pdf

Panel: Fuentes, Smith, and Barry, Circuit Judges

Argument Date: Oct. 8, 2015

Issued Opinion: Jan. 14, 2016

Docket Number: 15-1435

Decided: Affirmed in part, vacated in part.

Case Alert Author: Morgan Haas

Counsel: Bruce H. Nagel, Esq., Robert H. Solomon, Esq., Greg M. Kohn, Esq., and Andrew Pepper, Esq., Attorneys for Appellants; Jonathan D. Pressment, Esq., William Feldman, Esq., Karen A. Confoy Esq., and Steven J. Daroci, Esq., Attorneys for Appellees.

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 01/20/2016 08:52 AM     3rd Circuit     Comments (0)  

January 13, 2016
  Laurence Kaplan v. Saint Peter's Healthcare System - Third Circuit
Headline: Under ERISA, only a church can establish a plan that qualifies for an exemption under the church plan exemption.

Area of Law: ERISA: Employee Retirement Income Security Act

Issue Presented: Does a plan maintained and established by a church agency qualify for the church plan exemption?

Brief Summary: St. Peter's, a non-profit healthcare entity, established a non-contributory retirement benefit plan and filed an application with the IRS seeking a church plan exemption. Laurence Kaplan filed a class action suit against St. Peter's claiming it failed to comply with ERISA. The IRS affirmed St. Peter's retirement plan as a exempt church plan for tax purposes in August 2013 and St. Peter's moved to dismiss Kaplan's suit arguing it did not need to comply with the ERISA provisions because it was exempt.
The District Court found that because St. Peter's was not a church it could not establish an exempt church plan. The Third Circuit affirmed the District Court's findings by relying on the language in subsection 3(33)(A), which requires that all exempt plans be established by a church and maintained by a church or church agency. While the IRS affirmed St. Peter's plan as exempt, the Third Circuit found that ruling was at odds with the statutory text of subsection 3(33)(A) and therefore not entitled to deference. The Third Circuit concluded that ERISA only exempts plans established by a church. Because St. Peter's is not a church and therefore a church did not establish its retirement plan, the plan does not qualify for the church plan exemption. Thus, the Third Circuit affirmed the District Court's denial of St. Peter's motion to dismiss.

Extended Summary: St. Peter's is a non-profit healthcare entity that runs various facilities, including a hospital and employs over 2.800 people and has ties to the Roman Catholic Diocese of Metuchen, New Jersey. In 1974, St. Peter's established a non-contributory retirement benefit plan. In 2006, St. Peter's filed an application with the IRS seeking a church plan exemption. In March 2013, Laurence Kaplan filed a class action suit against St. Peter's claiming it failed to comply with ERISA requirements. In August 2013, the IRS affirmed St. Peter's retirement plan as an exempt church plan for tax purposes. St. Peter's moved to dismiss Kaplan's suit, arguing that, because it was exempt under ERISA, it was not required to comply with the provisions and hence there was no claim.
The District Court concluded that St. Peter's was not a church and therefore could not establish an exempt church plan. Subsection 3(33)(A) requires that all exempt plans be established by a church and the 1980 amendments allows those plans maintained by church agencies to also be exempt. However, St. Peter's argued that the language of subsection 3(33)(C)(i) allows a plan to be exempt if it is maintained by a church agency even if it wasn't established by a church. However, this is incorrect as Congress specifically chose to limit the church plan exemption to only plans established by a church. Additionally, the language of the 1980 amendments, which excluded the second "established" to avoid ambiguities in its interpretation, supports this. Because St. Peter's is not a church, the exemption is unavailable.
Limiting the exemption to plans established by churches is supported by the legislative history of subsection 3(33). The court refused to give deference to the 1983 decision of the IRS to issue exemptions to plans not established by churches because this position of the IRS was in the form of a general counsel memorandum. Such an interpretation is only entitled to deference to the extent that it has the power to persuade. This interpretation lacks the power to persuade because it does not consider the church establishment requirement of subsection 3(33)(A) and is therefore at odds with the statutory text.
In 1974, pension plans established by a church had been exempted from ERISA. St. Peter's argument for dismissal was based on the ground that its plan qualifies for the church plan exemption. Because that exemption is unavailable as a church did not establish the plan, the Third Circuit affirmed the District Court's denial of the motion to dismiss.

The full opinion is available at http://www2.ca3.uscourts.gov/opinarch/151172p.pdf


Panel (if known): Chief Judge McKee, Circuit Judges Ambro, and Hardiman

Argument Date: October 8, 2015

Date of Issued Opinion: December 29, 2015

Docket Number: No. 15-1172

Decided: Affirm District Court's denial of St. Peter's motion to dismiss.

Case Alert Author: Morgan Haas

Counsel: Jeffrey J. Greenbaum, Esq., James M. Hirschhorn, Esq., and Katherine M. Lieb, Esq., Counsel for Appellants. Monya M. Bunch, Esq., Karen L. Handorf, Esq., Matthew A. Smith, Esq., Michelle C. Yau, Esq., Ron Kilgard, Esq., Lynn L. Sarko, Esq., Counsel for Appellee. Jeremy P. Blumenfeld, Esq., Counsel for Amicus Appellant. Mark E. Chopko, Esq., Marissa Parker, Esq., Brandon Riley Esq., and Lisa Gilden, Esq., Counsel for Amicus Appellant. Jared M. Haynie, Esq., and James A. Sonne, Esq., Counsel for Amicus Appellant. Mary E. Signorille, Esq. and Roberta L. Steele, Esq., Counsel for Amicus Appellees. Laurence A. Hansen, Esq., G. Daniel Miller, Esq., Counsel for Amicus Appellant. Richard H. Frankel, Esq., Karen W. Ferguson, Esq., and Norman P. Stein, Esq., Counsel for Amicus Appellee. Patrick C. Elliott, Esq., and Andrew L. Seidel, Esq., Counsel for Amicus Appellee. Gregory M. Lipper, Esq., Ayesha N. Kahn, Esq. and Daniel Mach, Esq., Counsel for Amicus Appellees.

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 01/13/2016 01:23 PM     3rd Circuit     Comments (0)  

January 12, 2016
  Sandra Connelly v. Lane Construction Co. - Third Circuit
Headline: Third Circuit Clarifies Pleading Standard to Survive Rule 12(b)(6) Motion to Dismiss

Area of Law: Employment Law, Civil Procedure

Issues Presented: What level of specificity do Title VII disparate treatment and retaliation claims require to meet Twombly/Iqbal standard of pleading?

Brief Summary: Plaintiff Sandra Connelly sued her former employer, Lane Construction Co., for sexual harassment and wrongful termination. She alleged that she had made regular formal complaints to the company for sexual harassment, which the company failed to address or rectify. She further alleged that she was eventually laid off, and not rehired, as a result of her complaints about the harassment. Plaintiff's case was dismissed for failure to state a claim upon which relief could be granted. She appealed to the Third Circuit which found the district court had misapplied the Twombly/Iqbal standard, and that her factual allegations were sufficient to survive a motion to dismiss.

Extended Summary: Defendant is a multistate construction company which hired Plaintiff as a truck driver in 2006. She was fifth in seniority and was the only female employee. According to her complaint, Plaintiff began being cursed at and belittled on a daily basis by her male co-workers after ending a romantic relationship with one of those co-workers.

In early 2009, Plaintiff learned that Defendant employees could make job-related complaints through the company's "Ethics Line," which she eventually called multiple times to report harassment by her co-workers. Later another employee made an unwanted sexual advance towards Plaintiff and she requested transfer to another facility. The supervisor responded with disbelief that the coworker would act that way and although he promised Plaintiff a transfer, she did not receive one. The harassment, and Plaintiff's complaints to the Ethics Line, continued throughout 2010. At some point during 2011, Plaintiff refused to drive a truck with a flat tire and steering problems, and she was berated and later laid off well before the typical season had ended. She alleged that she was never recalled to work even though other male co-workers with less seniority were recalled.

Plaintiff filed a lawsuit in the Western District of Pennsylvania, alleging gender-based disparate treatment, sexual harassment, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Pennsylvania Human Relations Act, 43 P.S. § 951. After filing an amended complaint, Defendant filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), which the district court granted. The district court held that Plaintiff failed to sufficiently plead that she was not rehired due to gender and also failed to allege sufficient facts to establish a plausible claim for retaliation. Plaintiff then appealed to the Third Circuit, which vacated the decision of the district court.

In so holding, the Court reasoned that the district court incorrectly evaluated the amended complaint as if Plaintiff was required to establish a prima facie case of disparate treatment and retaliation in order to survive a motion to dismiss. Instead, the correct pleading standard, post-Twombly, is whether the complaint contains enough factual allegations "to raise a reasonable expectation that discovery will reveal evidence of the necessary elements." The Court then disregarded the legal conclusions of the amended complaint and determined that the remaining factual allegations raised a reasonable expectation that discovery would reveal evidence that Plaintiff was a member of a protected class who was fired for discriminatory reasons and that the firing was a result of retaliation for protected Title VII activity. Given the extensive history of her alleged harassment by male employees, her repeated complaints concerning that treatment, and the lack of clear justification for Defendant's failure to rehire her, the amended complaint set forth claims that were plausible on its face.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/143792p.pdf

Panel (if known): Fisher, Chagares, Jordan

Argument Date: September 15, 2016

Date of Issued Opinion: January 11 2016

Docket Number: 2:13-cv-1402

Decided: Reversed and Remanded

Case Alert Author: John Farrell

Counsel: John E. Stember, Esq., and Emily E. Town, Esq. [Argued] for Plaintiff; Samantha M. Clancy, Esq. [Argued] an Maria Greco Danaher, Esq. for Defendant; Christine J. Back, Esq. [Argued] for Amicus Appellant

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 01/12/2016 02:02 PM     3rd Circuit     Comments (0)  

December 17, 2015
  Ramirez v. County of San Bernardino - Ninth Circuit
Headline: Ninth Circuit panel holds that Plaintiff was not required to seek leave of court before filing his Second Amended Complaint because rule 15 (a) does not impose any particular timing mechanism controlling the order in which amendments must be made.

Areas of Law: Civil Procedure

Issue: Whether Federal Rule of Civil Procedure 15(a) required the Plaintiff, who filed his first Amended Complaint with consent of the opposing party, to seek leave of court before filing his Second Amended Complaint.

Brief Summary: In a federal civil rights suit, Plaintiff-Appellant's claims were dismissed in district court after Plaintiff's First Amended Complaint was dismissed. The district court rejected Plaintiff's Second Amended Complaint because Plaintiff had not sought leave of court. On appeal, the Ninth Circuit held that Rule 15 does not require an order of performance or timing provision. Thus, Plaintiff's First Amended Complaint, executed by means of stipulation of the parties, complied with Rule 15(a)(2) as an "other amendment." Because the timely filed Second Amended Complaint mooted the pending motion to dismiss, the panel reversed the district court's grant of defendants' motion to dismiss the First Amended Complaint and the resulting dismissal of Plaintiff's case.

Significance: There is no requirement that a plaintiff exhaust the matter of course amendment under 15(a)(1) before an amendment is made under 15(a)(2), nor does it state the ability to amend under 15(a)(1) is exhausted or waived once a 15(a)(2) amendment is made. A plaintiff may amend in whatever order he sees fit, provided that he or she complies with the requirements of 15(a)(1) and 15(a)(2), respectively.

Extended Summary: Plaintiff-Appellant, Sergio Ramirez was stopped in his driveway by Defendant-Appellee, a police officer, at which point Plaintiff was allegedly beaten, tased and detained. Plaintiff filed suit in December 2012 against the County of San Bernardino and other individuals, claiming various civil rights violations. On April 29, 2013, after removal of the case to federal court, Plaintiff and Defendant stipulated to dismissal of various Defendants and the parties agreed that Plaintiff could amend his complaint within twenty days. The district court shortened this period to ten days, but signed the order. Plaintiff filed his First Amended Complaint within ten days.

On May 22, 2013, the Defendants filed a motion to dismiss the First Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion was calendared for hearing. Pursuant to Central District of California Local Rule 7-9, Plaintiff was required to file an opposition, or notice of intention not to oppose, Defendants motion no later than twenty-one days before the hearing date.

Plaintiff failed to submit any response to the motion by the deadline of June 3, 2013. Instead, on June 12, 2013, Plaintiff attempted to file a Second Amended Complaint. This filing was rejected on June 14, 2013 because leave of court had neither been sought nor granted.

By June 19, the Defendants' motion to dismiss was still unopposed. Relying on Local Rule 7-12, the district court deemed Plaintiff's failure to file any documents as his consent to the granting of the motion to dismiss. The district court dismissed the First Amended Complaint, without leave to amend, and dismissed the action entirely.

Plaintiff's chief complaint on appeal was that Federal Rule of Civil Procedure 15(a) was ambiguous and that under the Rule, it was not clear whether he was required to seek leave of court to file his Second Amended Complaint. While the panel agreed with the Plaintiff "the district court impermissibly rejected the Second Amended Complaint," it did not agree that Rule 15(a) is ambiguous.

The panel held "that Rule 15 provides different ways to amend a complaint, and these ways are not mutually exclusive. Rule 15 is organized substantively, not chronologically. It does not prescribe any particular sequence for the exercise of its provisions. That is, it does not mandate that the matter of course amendment under 15(a)(1) be exhausted before an amendment may be made under 15(a)(2), nor does it state that the ability to amend under 15(a)(1) is exhausted or waived once a 15(a)(2) amendment is made." Because Plaintiff's first amendment was accomplished pursuant to a stipulation between the parties, Rule 15(a)(2) was satisfied because it was filed with "the opposing party's written consent." The panel then ruled that amendment under Rule 15(a)(2) did not preclude Plaintiff from amending his complaint under Rule 15(a)(1). Plaintiff could amend in whatever order he saw fit, provided that he complied with the respective requirements found within 15(a)(1) and 15 (a)(2). The panel further ruled that the Plaintiff's Second Amended Complaint superseded the First Amended Complaint, which therefore ceased to exist, and, "ecause the Defendants' motion to dismiss targeted the Plaintiff's First Amended Complaint, which was no longer in effect," the panel concluded "that the motion to dismiss should have been deemed moot before the district court granted it." Reversed and Remanded.

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/11/23/13-56602.pdf

Panel: Elizabeth E. Foote, United States District Judge for the Western District of Louisiana, sitting by designation, Jay S. Bybee and Carlos T. Bea, Circuit Judges

Argument Date: June 5, 2015

Date of Issued Opinion: November 23, 2015

Docket Number: 13-56602

Case Alert Author: Andrew Mckeown

Counsel: Moises A. Aviles (argued), Aviles & Associates, San Bernardino, California, for Plaintiff-Appellant; Dawn M. Flores-Oster (argued), Lewis Brisbois Bisgaard & Smith, Los Angeles, California, for Defendants-Appellees.

Author of Majority Opinion: Judge Foote

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 12/17/2015 07:38 PM     9th Circuit     Comments (0)  

  Michtavi v. Scism - Third Circuit
Headline: Third Circuit Holds That Prison Officials Have Qualified Immunity Because an Inmate Did Not Have a Clearly Established Constitutional Right Under the Eight Amendment to Treatment for Retrograde Ejaculation Condition.

Area of Law: Constitutional law

Issues Presented: Were prison officials entitled to qualified immunity on an inmate's claim under the Eighth Amendment of a right to treatment for his retrograde ejaculation condition.

Brief Summary: Shemtov Michtavi filed a claim against various prison officials for the failure to give him medication to treat his retrograde ejaculation condition. Michtavi filed an Eighth Amendment claim for the failure, asserting that the condition was a serious medical need. The Third Circuit found that the District Court's definition of the right at issue as either the right to treatment of a serious medical condition or the right to procreation was too broad. Here the specific conduct at issue was the failure to treat retrograde ejaculation, which could lead to impotence and infertility. Thus, the question was whether the prison officials were obligated to treat conditions that have the result of impotence or infertility. The Third Circuit then determined that the officials were entitled to qualified immunity on the claim because the right was not clearly established. Because there was neither Supreme Court nor appellate precedent holding that there was a constitutional right to medical treatment for retrograde ejaculation, infertility, or erectile dysfunction, the court found there was no authority establishing this right.

Extended Summary: This case concerns the issue of whether Shemtov Michtavi had a constitutional right under the Eight Amendment to receive treatment for his retrograde ejaculation condition. Michtavi was incarcerated at Allenwood and received an operation to treat his prostate. After the surgery, Michtavi noticed that the quantity of his ejaculation had decreased. Michtavi was diagnosed with retrograde ejaculation and asked the Federal Bureau of Prisons ("BOP") to treat him. Michtavi contended that the BOP should treat him because the condition could cause him to become impotent. Michtavi met with Dr. Chopra, the doctor who performed the prostate surgery, and was told about a possible medication that would help close the hole that was opened during the surgery, so as to prevent the ejaculate from leaking into the bladder. The BOP did not provide the medication because it stated that it did not treat impotence and sexual dysfunction was not medically necessary. Michtavi then filed a lawsuit against the BOP and prison officials, claiming an Eighth Amendment violation for deliberate indifference to his serious medical need. The officials moved for summary judgment based on qualified immunity. The District Court denied their motion because there was a question as to whether retrograde ejaculation was a serious medical need requiring treatment under the Eighth Amendment.

The Third Circuit first looked to the definition of the right at issue. The court determined that the District Court's definition of the right at issue, as either the Eighth Amendment right to treatment of a serious medical condition or as a fundamental right to procreate, was too broad. The right at issue must pertain to the specific conduct at issue. The Third Circuit stated that the District Court's broad definition did not account for the particular conduct at issue in this case. The Third Circuit stated that the particular conduct at issue in this case was the failure to treat retrograde ejaculation, which could lead to impotence and infertility. Therefore the question was whether the BOP is obligated to treat conditions that can result in impotence and/or infertility.

Next, the Third Circuit analyzed whether this right of issue is clearly established. Specifically, the court stated that there must be precedent indicating that the specific right at issue was clearly established beyond debate. The Third Circuit found that there was no Supreme Court or appellate precedent to support a claim that prison officials must treat retrograde ejaculation, infertility, or erectile dysfunction. Therefore, there was no authority that clearly established a right for prison inmates to receive treatment for conditions that result impotence and/or infertility. The Third Circuit held that because there was no clearly established right, the officials were entitled to qualified immunity. The Third Circuit reversed and remanded the case to the District Court with instruction to enter summary judgment in favor of the appellants.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/144104p.pdf

Panel (if known): Vanaskie, Sloviter, and Rendell, Circuit Judges

Argument Date: September 11, 2015

Date of Issued Opinion: December 14, 2015

Docket Number: 14-4104

Decided: Reversed and remanded

Case Alert Author: Trisha Stein

Counsel: Barbara L. Herwig, Esq., Lowell V. Sturgill, Jr., Esq, Melissa A. Swauger, Esq., Counsel for Appellants; Shemtov Michtavi, Pro Se Appellee.

Author of Opinion: Judge Rendell

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 12/17/2015 03:53 PM     3rd Circuit     Comments (0)  

December 11, 2015
  United States v. Burston - Eighth Circuit
Headline Eighth Circuit panel reverses denial of motion to suppress evidence gathered by police in connection with unconstitutional dog sniff

Area of Law Fourth Amendment

Issue(s) Presented Whether the district court properly denied defendant's motion to suppress evidence gathered in connection with drug-detection dog sniff performed on the curtilage of his home.

Brief Summary Defendant was convicted of violating 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. The conviction relied on evidence gathered by police in connection with a drug-detection dog sniff of an area immediately outside of Defendant's home. The district court denied Defendant's motion to suppress this evidence as a violation of this Fourth Amendment rights, finding that the exclusionary rule did not apply because the police officers acted in objectively reasonable reliance on binding Eighth Circuit precedent at the time of the dog sniff.

Defendant lived in an eight unit apartment building. Defendant's unit was on street level, and had a private entrance and a window. To access the unit, Defendant had his own walkway leading from the public sidewalk to his door, which was about six feet from his window. A bush covered Defendant's window, and he had a grill in the space between the walkway and his window. Based on information about potential drug use in the apartment building, officers let a drug-detection dog off-leash to sniff the air alongside the exterior wall of the apartment building. The dog left the sidewalk and walkway leading to Defendant's apartment, and sniffed the area around Defendant's window. The dog alerted to the presence of drugs six to ten inches from Defendant's window. Based on the dog's alert, the officers obtained a warrant to search Defendant's home and found the rifles and ammunition which led to his conviction. In his motion to suppress, Defendant argued that the dog sniffing near his window constituted an illegal warrantless search on the curtilage of his home.

On appeal of the denial of the motion to suppress, a panel of the Eighth Circuit agreed with Defendant, and reversed the District Court's ruling. The Court relied on a prior US Supreme Court ruling holding that an officer's use of a drug sniffing dog to investigate a home and its immediate surroundings, also called "curtilage," constitutes a search for purposes of the Fourth Amendment. To determine whether an area is considered "curtilage" the proximity to the home, whether the area is in an enclosure, the use put to the area, and the steps taken by the resident to protect the area from observation by people passing by are all considered. The Eighth Circuit held that, based on these factors, the area near Defendant's window constituted curtilage, and as such, the warrantless drug dog sniff was an illegal search which violated Defendant's Fourth Amendment rights. The Court further held that the officers did not reasonably rely on binding Eighth Circuit precedent in conducting the search because the area sniffed was not a common area, so good faith exceptions to the general rule did not apply.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/11/143213P.pdf

Panel Circuit Judges Melloy, Murphy, and Smith

Date of Issued Opinion November 23, 2015

Decided Reversed and remanded

Docket Number 14-3213

Counsel Mark Tremmel for the United States and Raphael Scheetz for Defendant

Author Circuit Judge Melloy

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

    Posted By: Joelle Larson @ 12/11/2015 01:49 PM     8th Circuit     Comments (0)  

December 10, 2015
  United States v. Newman -- Fourth Circuit
K-Kutta Must Hit Pause on Rick Ross Label Deal While Serving Ten-Year Prison Term After Fourth Circuit Finds No Reversible Error

Areas of Law: Criminal Procedure

Issues Presented: Whether the district court erred in denying Kenneth Dewitt Newman's motion to withdraw an initial plea. Whether the judgment contained a clerical error. Whether incorrect grand jury testimony prejudiced Newman.

Brief Summary: Kenneth Dewitt Newman, also known as K-Kutta, appealed his convictions and sentences pursuant to two guilty pleas. The Government set aside his first guilty plea because of Newman's failure to cooperate. No longer restrained by the first guilty plea, the Government acquired a second indictment against Newman. In order to persuade the Government to dismiss the charges in the second indictment, Newman pled guilty to another charge. On appeal, Newman alleged that (1) the district court erred in denying his motion to withdraw his first guilty plea, (2) following his second guilty plea, the court's judgment contained a clerical error, and (3) incorrect grand jury testimony prejudiced him.

Regarding Newman's assertion that he should have been permitted to withdraw his first guilty plea, the Fourth Circuit explained the need to follow Federal Rule of Criminal Procedure 11(d). Rule 11(d) states that after a district court accepts a guilty plea but before sentencing, a defendant may withdraw his guilty plea if he can show a fair and just reason for requesting withdrawal. Rule 11(d) places the burden on the defendant to demonstrate that withdrawal should be granted. The Fourth Circuit echoed United States v. Moore and enumerated a non-exhaustive list of factors which provide guidance in determining whether a defendant has met his burden: "(1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether the defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether withdrawal will inconvenience the court and waste judicial resources." 931 F.2d 245, 248 (4th Cir. 1991).

In this instance, the Fourth Circuit determined that Newman failed to establish his plea was unknowing and involuntary under Moore's first factor; he did not pursue a claim that he was innocent under Moore's second factor; and he did not pursue a claim that counsel was ineffective under Moore's fourth factor. Instead, Newman made bare assertions of fair and just reasons to withdraw his plea but failed to provide any evidence to support his assertions. For example, Newman asserted that he did not understand his obligations under the plea agreement required him to provide information about people other than himself who might be involved in criminal activity. He also maintained that he was unaware he could not dispute the drug weight allegations after the lab reported new evidence. Nevertheless, the Government asserted it set aside the first plea agreement based on Newman's refusal to provide any further cooperation. The Fourth Circuit found the district court did not abuse its discretion in granting the Government's motion to set aside the agreement and denying Newman's motion to withdraw his plea because Newman did not dispute the lack of cooperation claim.

Regarding the clerical error, a discrepancy existed between the judgment, which indicated distribution of drugs, and the indictment, which charged possession with intent to distribute the same drugs. Newman and the Government agreed that Newman possessed all the drugs and had intent to distribute only cocaine, but the Government claimed Newman failed to establish any prejudice because of this discrepancy. The Fourth Circuit ruled that judicial economy weighed in favor of remand for correction of judgment to conform to Newman's plea.

Regarding prejudiced grand jury testimony, the Fourth Circuit emphasized that after a defendant admits guilt of the offense in open court, he cannot then raise independent claims relating to the deprivation of constitutional rights that happened prior to the guilty plea entry. In this instance, the alleged error took place prior to both of Newman's pleas and the error concerned a dismissed count. Therefore, the Fourth Circuit affirmed the district court's decision.

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

Panel: Judges Duncan, Diaz, and Floyd

Argument Date: 09/29/2015

Date of Issued Opinion: 10/28/2015

Docket Number: No. 15-4100

Decided:
Affirmed and remanded by unpublished Opinion.

Case Alert Author: Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: John R. McGhee, Jr., KAY CASTO & CHANEY, PLLC, Charleston, West Virginia, for Appellant. R. Booth Goodwin, II, United States Attorney, R. Gregory McVey, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

Author of Opinion: Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/10/2015 01:31 PM     4th Circuit     Comments (0)  

December 7, 2015
  Espinoza v. Dimon
Headline: Second Circuit Dismisses Derivative Suit Accusing JPMorgan Chase Directors of Insufficiently Investigating the "London Whale" Trading Incident

Area of Law: Corporate

Issue Presented: When a shareholder demands that a board of directors investigate both an underlying wrongdoing and subsequent misstatements by corporate officers about that wrongdoing, what factors should a court consider in deciding whether the board acted in a grossly negligent fashion by focusing its investigation solely on the underlying wrongdoing?

Brief Summary: This shareholder derivative action arose out of the "London Whale" trading incident. Ernesto Espinoza, a shareholder of JPMorgan Chase & Co. ("JPMorgan"), sent a letter to JPMorgan demanding that the board investigate the London Whale incident. The board rejected Espinoza's demand letter, but pursued its own investigation into the incident. Espinoza, however, alleged that JPMorgan's investigation was improperly executed because it focused only on the underlying incident and not the alleged misstatements later made by its executives. Espinoza's derivative suit alleged that his demand letter had been wrongfully refused. The United States District Court for the Southern District of New York dismissed the complaint, finding that Espinoza had not pleaded sufficient facts to rebut the strong presumption that the board's decision reflected a valid exercise of its business judgment. On appeal, the Second Circuit certified the following question of law to the Delaware Supreme Court: "If a shareholder demands that a board of directors investigate both an underlying wrongdoing and subsequent misstatements by corporate officers about that wrongdoing, what factors should a court consider in deciding whether the board acted in a grossly negligent fashion by focusing its investigation solely on the underlying wrongdoing?" Based on the Delaware Supreme Court's answer, the Second Circuit explained that to survive a motion to dismiss, a plaintiff alleging wrongful refusal of a demand must plead facts supporting a plausible inference that the board's decision not to take further action was the result of gross negligence. Here, the Second Circuit concluded that the plaintiff had not done so, and affirmed the dismissal of the complaint. To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...2d5c1fed9b4/1/hilite/

Extended Summary: This decision reflected the Second Circuit's third writing on Ernesto Espinoza's derivative suit, which alleges that the board of JPMorgan improperly failed to investigate alleged misstatements made by JPMorgan executives regarding the "London Whale" incident. In earlier opinions, the Second Circuit concluded that the dismissal of Espinoza's complaint should be reviewed de novo, and that it was appropriate to certify the above-described question to the Delaware Supreme Court.

In this opinion, the court noted that the Delaware Supreme Court had provided helpful guidance. "As the Delaware Supreme Court emphasized in its response, our review of a wrongful refusal suit starts from the premise that the decision to initiate a lawsuit is an internal corporate matter within the board's discretion," the Second Circuit wrote. Accordingly, a plaintiff bringing this sort of derivative suit bears a difficult burden.

Here, the Second Circuit noted that JPMorgan's board, in response to the London Whale trading incident, engaged in an extensive review. The board created a Review Committee consisting of three outside board members, who in turn used independent counsel and an expert advisor. The Review Committee also oversaw a management Task Force. These efforts resulted in the publication of two extensive written reports, and led to many of the changes sought by Espinoza in his demand letter, including clawbacks of payments, reductions in compensation, and reformed internal guidelines and controls. The court distinguished this response from other derivative suits that were allowed to go forward based on insufficient board responses.

Moreover, the Second Circuit explained that JPMorgan was not legally required to submit a detailed point-by-point response to Espinoza's demand letter. The court identified two practical considerations here. First, to require boards to reply in full detail to a plaintiff's demand letter might incentivize plaintiffs to include a laundry list of potential claims. Second, providing too much detail in a refusal letter might expose the corporation to regulatory or other legal risks, which would be at odds with the board's obligation to mitigate such risks. Here, JPMorgan's board made clear in its response that they did not want to pursue litigation because of the potential harm to JPMorgan's long-term strategic interests. Accordingly, the Second Circuit affirmed the dismissal of this lawsuit.

Panel: Chief Circuit Judge Katzmann, Circuit Judges Pooler and Carney

Argument Date: April 1, 2015

Date of Issued Opinion:
December 3, 2015

Docket Number: 14-1754

Decided: Affirmed

Case Alert Author: Brad Landau

Counsel: George C. Aguilar (Jay N. Razzouk, on the brief), Robbins Arroyo LLP, San Diego, California; Thomas G. Amon, Law Offices of Thomas G. Amon, New York, New York, for Plaintiff‐Appellant; Richard C. Pepperman, II, Sullivan & Cromwell LLP, New York, New York (Daryl A. Libow, Christopher Michael Viapiano, Sullivan & Cromwell LLP, Washington, D.C., on the brief), for Defendants‐Appellees James Dimon, Douglas L. Braunstein, Michael J. Cavanagh, Ina R. Drew, and Nominal Defendant‐Appellee JPMorgan Chase & Co; Jonathan C. Dickey, Gibson, Dunn & Crutcher LLP, New York, New York, for Defendants‐Appellees Ellen V. Futter, James S. Crown, David M. Cote, Laban P. Jackson, Jr., Crandall C. Bowles, James A. Bell, Lee R. Raymond, Stephen B. Burke, William C. Weldon, and David C. Novak.

Author of Opinion: Chief Judge Katzmann

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 12/07/2015 05:32 PM     2nd Circuit     Comments (0)  

December 4, 2015
  United States v. Gilberto Valle
Headline: Second Circuit, Finding That "Cannibal Cop" Lacked the Specific Intent to Engage in Kidnapping Conspiracy, Affirms His Acquittal.

Area of Law: Criminal

Issues Presented: Whether the District Court appropriately concluded that the Defendant lacked the specific intent to form a kidnapping conspiracy. Whether the District Court properly concluded that the Defendant's use of a government computer to obtain information that was not related to his duties as a police officer violated the Computer Fraud and Abuse Act.

Brief Summary: Gilberto Valle, a New York City Police Officer, was an active member of an internet community known as as the "Dark Fetish Network." ("DFN"). Valle and other members of this community would regularly communicate their desire to satisfy their sexual fetishes by "kidnapping, torturing, cooking, raping, murdering, and cannibalizing various women." Valle was arrested and charged with conspiracy to kidnap a number of the women mentioned in his online conversations. Additionally, Valle was charged with using his position as a New York City Police Officer to improperly access a government computer, in violation of Section 1030(a)(2)(B) of the Computer Fraud and Abuse Act. ("CFAA"). Following a jury trial in the United States District Court for the Southern District of New York, Valle was convicted on both counts. Following the trial, District Judge Gardephe granted Valle's motion for judgment of acquittal on the conspiracy charge, and denied Valle's motion on the CFAA charge. On appeal, the Second Circuit affirmed the acquittal on the conspiracy count, concluding that there was insufficient evidence of a genuine agreement to kidnap and of Valle's specific intent to commit a kidnapping. Additionally, the Second Circuit reversed the conviction on the CFAA count, ruling that the statute only criminalizes situations where a person accesses a computer to obtain information that he is not entitled to view for any purpose. To read the full opinion, please visit ">http://www.ca2.uscourt.../de.....b/2/hilite/


Significance: Second Circuit adds to circuit split over the interpretation of "exceeds authorized access" in the Computer Fraud and Abuse Act.

Extended Summary: To prove the existence of a conspiracy, the government must prove beyond a reasonable doubt that the defendant knew of the conspiracy, and participated in it. Moreover, the defendant must have specific intent to commit the underlying offense (here, kidnapping). During his involvement with the Dark Fetish Network ("DFN"), Valle communicated with twenty-four different individuals on DFN; in those messages, he expressed a desire to kidnap, rape, torture, and cannibalize various women.

On appeal, in a 2-1 split, the Second Circuit rejected the government's contention that Valle had shown a specific intent to engage in a kidnapping conspiracy through any of his communications on the DFN. The Court found it significant that at Valle's trial, the government had pointed to Valle's communications with only three other DFN members as evidence of his intent to engage in a kidnapping conspiracy. In doing so, the government apparently acknowledged that Valle's other communications were fantastical. The government attempted to distance itself from this theory on appeal by arguing that it had never drawn a firm distinction between Valle's communications. However, the Court noted that "[o]nce the Government constructs its case around the theory that a certain group of chats permits the inference of conspiratorial intent while another group of essentially similar chats is consistent with non-criminal behavior, some adequate explanation must be forthcoming."

Valle's most specific actions involved chats with another DFN user, "Moody Blues," in which the two expressed a desire to kidnap, torture, and cannibalize Valle's friend, Kimberly Sauer. During the course of his communications, Valle sent a document to Moody Blues detailing how the kidnapping would unfold. The document included Sauer's photograph and some other accurate information about her (such as her age); it also included false information about her, such as her last name, date of birth, birthplace, and educational history. The document also identified a specific date when the kidnapping would be carried out. The government claimed that these actions demonstrated Valle's intent to engage in a conspiracy to kidnap Sauer. Moreover, Valle used his friendship with Sauer to arrange a lunch meeting, which the government claimed was an act of surveillance in anticipation of the kidnapping. The majority of the Second Circuit rejected these arguments, finding that these acts were not fundamentally different from the fantasies that Valle expressed in his other communications. The Court expressed doubt that Valle ever intended to follow through on the plan to kidnap Sauer, pointing out that Valle had deliberately concealed Sauer's full name and address from Moody Blues. Moreover, the communications between Valle and Moody Blues about Sauer stopped over a month before the proposed kidnapping date of September 2, 2012. As a result, the Court affirmed the District Court's judgment of acquittal on the conspiracy charge.

The majority also concluded that Valle's conduct did not fall under the CFAA. 18 USC § 1030(a)(2)(B) makes it a crime to "intentionally access a computer without authorization or exceeds authorized access and thereby obtains information . . . from any department or agency of the United States. It was undisputed that Valle had used his position as a police officer to access the National Crime Information Center ("NCIC") in order to access information about Maureen Hartigan, one of the women that he had fantasized about kidnapping.

Whether or not Valle conduct violated the statute hinged on the interpretation of the phrase "exceeds authorized access." The Second Circuit noted that this issue has dived the Courts of Appeals, with the Fourth and Ninth Circuits adopting a narrow interpretation of "exceeds authorized access," while the First, Fifth, Seventh, and Eleventh Circuits have adopted a broader interpretation. The broader interpretation is that the term "exceeds authorized access" applies when an individual accessed a computer, with an improper purpose, in order "to obtain or alter information that he is otherwise authorized to access." The narrower interpretation is the user only "exceeds authorized access" by obtaining or altering "information that he does not have authorization to access for any purpose which is located on a computer that he is otherwise authorized to access." In other words, Valle's contention was that he did not violate the statute because he was allowed to access the NCIC as a police officer, even though the reason why he accessed the site was not for a legitimate law enforcement purpose. Finding that both the government and Valle had proposed plausible interpretations of the statute, the Court applied the rule of lenity, and interpreted the statute in Valle's favor. As a result, the Court vacated Valle's conviction under the CFAA.

Dissent: Judge Straub argued that the District Court erred by granting Valle's judgment of acquittal, and should have been reversed. Additionally, the dissent argued that Valle's use of the NCIC database violated 18 USC S 1030 (a)(2)(B), and thus that conviction should have been affirmed. The dissent focused largely on Valle's expressed intent to kidnap Sauer as evidence of his guilt on the conspiracy charge. Judge Straub noted that the communications between Valle and Moody Blues expressed an intent to engage in a conspiracy to kidnap Sauer, and that Valle took acts in furtherance of the conspiracy by meeting Sauer for lunch and compiling a "blueprint" for how the abduction would take place. Viewed in a light most favorable to the jury verdict - conviction - Judge Straub reasoned that there was enough evidence for a reasonable jury to find Valle guilty of conspiracy to kidnap Sauer, even though he ultimately did not go through with it.

Judge Straub also argued that Valle's action of accessing the NCIC in order to obtain information about Hartigan violated the plain language of 18 USC S 1030 (a)(2)(B). Unlike the majority, the dissent found that the term "exceeds authorized access" was plain and unambiguous. Valle was only authorized to access the NCIC database in furtherance of his duties as a police officer and there was no dispute that Valle's purpose of accessing the NCIC was not in furtherance of his duties. As such, it was beyond the scope of his authorized access.

Panel: Judges Straub, Parker, and Carney.

Argument Date: May 12, 2015

Argument Location: New York, NY

Date of Issued Opinion: December 3, 2015

Docket Number: No. 14‐2710‐cr and No. 14‐4396‐cr

Decided: Affirmed in Part and Reversed in Part.

Case Alert Author: Brian Byrne

Counsel: JUSTIN ANDERSON AND RANDALL W. JACKSON (Hadassa Waxman and Brooke Cucinella, of counsel), Assistant United States Attorneys for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellant/Appellee.
EDWARD S. ZAS (Robert M. Baum and Julia L. Gatto, of counsel), Federal Defenders of New York, Inc., New York, New York, for Defendant‐ Appellee/Defendant‐Appellant Gilberto Valle.
Eugene Volokh (Hanni Fakhoury and Jamie Williams, Electronic Frontier Foundation, San Francisco, California, on the brief), Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California, for Amici Curiae Electronic Frontier Foundation, Center for Democracy & Technology, Marion B. Brechner First Amendment Project, National Coalition Against Censorship, Pennsylvania Center for the First Amendment, and Law Professors.
Stephen L. Braga, Appellate Litigation Clinic, University of Virginia School of Law, Charlottesville, Virginia, for Amici Curiae Frederick S. Berlin, M.D., Ph.D., and Chris Kraft, Ph.D.
Hanni Fakhoury and Jamie Williams (Richard D. Willstatter, National Association of Criminal Defense Lawyers, White Plains, New York, and Harley Geiger, Center for Democracy & Technology, Washington, D.C., on the brief), Electronic Frontier Foundation, San Francisco, California, for Amici Curiae Electronic Frontier Foundation, Center for Democracy & Technology, National Association of Criminal Defense Lawyers, and Scholars.

Author of Opinion: Judge Parker (majority); Judge Straub (dissent)

Circuit: Second Circuit

    Posted By: Emily Waldman @ 12/04/2015 10:32 AM     2nd Circuit     Comments (0)  

December 3, 2015
  United States v. Palomino-Coronado -- Fourth Circuit
After Defendant Has Sex with Minor Is One Picture Enough to Prove Intent Under §2251(a)?

Areas of Law: Criminal Law

Issues Presented: Whether there was sufficient evidence to convict Anthony Palomino-Coronado under §2251(a); and whether the district court improperly denied Palomino-Coronado's motion for judgment of acquittal under Federal Rule of Civil Procedure ("FRCP") 29.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit ("the court") held that the facts presented did not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. in order to take a picture. The court stated, "all the record shows is that [Palomino-Coronado] had engaged in sexual activity with B.H. on more than one occasion; that he had taken several non-sexually explicit pictures of her with his [cellphone] in his basement; and that one sexually explicit picture was taken." Finally, the court attempted to narrow its holding by stating that a situation can present itself where "only one photograph was taken but where there was other evidence of purpose, and we do not hold that a sufficiency challenge would necessarily fall in that instance." However, the court felt that was not the case here, and as a result, reversed and vacated.

Extended Summary: On May 3, 2012, Prince George's County police officers responded to a home in Laurel, Maryland based on a report of a missing seven-year-old child, B.H. Officers found B.H. at the fence that separated her house and her neighbor's house. Her neighbor was Anthony Palomino-Coronado, a nineteen-year-old male. Police officers took B.H. to the hospital and a sexual assault exam was performed. The exam found there had been vaginal penetration and that B.H. had a vaginal infection, most likely the result of continued sexual activity. The nurse at the hospital interviewed B.H. and she told the nurse that she had been at Palomino-Coronado's house the night before, and that she had been there at least 10 times previously.

The detective for the case reported that in an unrecorded interview with B.H. and her caregiver, B.H. said that while at Palomino-Coronado's house he kissed her and they had sex. Detectives got a search warrant and seized Palomino-Coronado's cell phone, where they found a deleted picture of a man penetrating a female child. On May 15, 2012, an FBI child forensic specialist interviewed B.H. During this interview B.H identified the people in the picture recovered from Palomino-Coronado's phone as "B," referring to her, and "A," referring to Palomino-Coronado.

At trial, B.H. testified that Palomino-Coronado had touched her private parts on more than one occasion and also testified that she was scared during her initial interview with the detective because the detective told her that she wouldn't get to go home if she didn't say that she and Palomino-Coronado had had sex. However, B.H. again identified the people in the picture recovered from Palomino-Coronado's phone as "B.H." and "Anthony." The FBI child forensic specialist testified that, in her professional opinion, the interview that the detective conducted with B.H. was coercive and did not follow protocol. However, the specialist also testified about her own interview with B.H., in which B.H. identified the picture and also said that she and Palomino-Coronado had engaged in sexual conduct. After the state presented its case, Palomino-Coronado made a motion for judgment of acquittal based on insufficient evidence pursuant to FRCP 29. The motion was denied and Palomino-Coronado was convicted of knowingly employing, using, persuading, inducing, enticing, or coercing a minor in sexually explicit conduct, for the purpose of producing a visual depiction of that conduct, in violation of 18 USC §2251(a). He was sentenced to 30 years imprisonment.

The United States Court of Appeals for the Fourth Circuit reviewed the case de novo. The court noted that evidence sufficient to sustain the conviction is "evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). A defendant bringing a sufficiency challenge "must overcome a heavy burden," (United States v. Hotye, 51 F.3d 1239, 1245 (4th Cir. 1995)), and reversal for insufficiency must "be confined to cases where the prosecution's failure is clear." Burks v. United States, 437 U.S. 1, 17(1978). This was an issue of first impression for the Fourth Circuit, as it had not previously considered a challenge to the sufficiency of the evidence in a conviction under §2251(a).

Palomino-Coronado contended that the government failed to prove one of the elements of a § 2251(a) charge - specifically that he acted for the purpose of producing a visual depiction. Citing the First, Third and Eleventh Circuits, the Fourth Circuit found that § 2251(a) contains a specific intent element. In other words, under the statute, the government is required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct. (United States v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir. 2012)). The government cannot just say "the photo speaks for itself." (United States v. Crandon, 173 F.3d 122, 129 (3rd Cir. 1999)).

Applying the law to the facts of this case, the court held that the evidence at trial did not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. for the purpose of producing a picture. The government did not offer direct evidence or statements indicating intent and there was no testimony that Palomino-Coronado gave any instruction or direction to B.H. as part o their sexual encounter that would indicate purpose. The court stated, "all the record shows is that [Palomino-Coronado] had engaged in sexual activity with B.H. on more than one occasion; that he had taken several non-sexually explicit pictures of her with his [cellphone] in his basement; and that one sexually explicit picture was taken." These facts, according to the court, did not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. in order to take a picture, and "to hold otherwise would eliminate the specific intent requirement under § 2251(a) into a strict liability offense."

Finally, the court attempted to narrow its holding by stating that a situation can present itself where "only one photograph was taken but where there was other evidence of purpose, and we do not hold that a sufficiency challenge would necessarily fall in that instance." However, the court felt that was not the case here, and as a result, reversed and vacated.

To read the full opinion, click here.

Panel: Judges Motz, King, and Gregory.

Argument Date: 09/17/2015

Date of Issued Opinion: 11/5/2015

Docket Number: No. 14-4416

Decided: Reversed and vacated by published opinion.

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

Counsel: Argued: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Kristi Noel O'Malley, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. On brief: James Wyda, Federal Public Defender, OFFICE OF THE PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 03:55 PM     4th Circuit     Comments (0)  

  Watkins v. Rubenstein, et al. -- Fourth Circuit
Habeas Relief Reversed After Court Finds No Brady Violation

Areas of Law: Criminal Procedure; Habeas

Issue Presented: Whether the district court assumed new facts and failed to give due deference to the state court's findings of fact when it ruled that the prosecutor committed a Brady violation which warranted a grant of habeas relief.

Brief Summary: In a split decision, the United States Court of Appeals for the Fourth Circuit reversed the district court's grant of a writ of habeas corpus to Steven Watkins. The petition for a writ of habeas corpus was before the district court after Watkins was denied relief in West Virginia state court. The Fourth Circuit reversed, finding the district court improperly found new facts and did not give adequate deference to the state court's rulings.

Extended Summary: In 2007, Steven Watkins was convicted of attempted robbery in the second degree and received a sentence of five to eighteen years. Whether the victim was placed in fear at the time of the attempted robbery, a required element of the offense was hotly contested at trial. Watkins claimed that after the trial concluded the prosecutor told Watkin's trial counsel the victim was not in fear at the time of the attempted robbery. Watkins brought a petition for writ of habeas corpus at the state court level claiming the prosecutor knew the victim was not afraid at the time of trial and this violated Brady v. Maryland. The prosecutor admitted to having at least two conversations with the victim regarding the fear element and what the prosecution needed to prove to sustain a conviction. The prosecutor, however, denied the victim claimed to have never been afraid. Instead, the prosecutor suggested the victim had some hesitation about admitting fear of another man.

In order to grant habeas relief based on a Brady violation, the defense must show the prosecution had information that was favorable to the defense prior to trial; that this information was material to the defense; and was requested prior to trial.
The state court concluded that Watkins' trial attorney was told after the trial that the victim was not afraid during the attempted robbery. The state court also found the prosecutor and victim discussed the fear element but that there was no impropriety and thus no Brady violation. The state court denied Watkins' petition.

When Watkins filed his petition in the District court, the court granted the petition finding that the State admitted the victim stated he was not afraid. The District court deemed the State to have been in possession of Brady material.

The Fourth Circuit reversed finding the District Court assumed facts when it reached its conclusion. The Fourth Circuit found the record showed the prosecutor made a post-trial statement to Watkins' attorney that the victim may not have been afraid, but this could not be imputed to mean that the prosecutor had knowledge of the fact prior to trial. Moreover, the court held that the conversations which did take place were "no more than routine trial preparation."

In a concurring opinion, Chief Judge Traxler criticized the evidence presented by Watkins. The Chief Judge underscored that the only witness presented by Watkins was his original trial counsel, whose recollection of the conversation which took place with the prosecutor was vague. Watkins failed to call either the victim or the prosecutor. The Chief Judge accused Watkins of misrepresenting the strength of this testimony to the District Court.

In a dissenting opinion, Judge Motz wrote that the District Court correctly concluded that the state court unreasonably applied Brady v. Maryland to the facts at hand. Judge Motz believed that the state court's opinion found that the prosecution had knowledge of the lack of fear of the victim prior to trial. Moreover, Judge Motz wrote that the only possible conclusion to draw from the state court's findings was that the prosecutor was the individual to tell Watkins' trial attorney about the statement. Judge Motz criticized the state for its failure to put the prosecutor on the stand to deny the allegations.

To read the full opinion click here.

Panel: Chief Judge Traxler, Judges Niemeyer and Motz

Argument Date: 01/29/2015

Date of Issued Opinion: 09/23/2015

Docket Number: 14-6513

Decided: Reversed by published opinion.

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

Counsel: ARGUED: Elbert Lin, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellants. Michael Brian Hissam, BAILEY & GLASSER, LLP, Charleston, West Virginia, for Appellee. ON BRIEF: Patrick Morrisey, Attorney General, Christopher S. Dodrill, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellants.

Author of Opinion: Judge Niemeyer

Concurring Opinion: Chief Judge Traxler

Dissenting Opinion: Judge Motz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 03:20 PM     4th Circuit     Comments (0)  

  Griffin v. Baltimore City Police Deparment -- Fourth Circuit
When Process Matters: Former State-Prison Inmate's Civil Action for Damages Barred by Court Precedent and Federalism Concerns

Areas of Law: Civil Procedure, Habeas Corpus, Enforcement Act of 1871

Issue Presented: Whether a civil action for damages under 42 U.S.C. § 1983 based on an alleged violation of a constitutional right may lie when the plaintiff is no longer in custody and the underlying state conviction has not been invalidated through either a state remedy or federal habeas corpus.

Brief Summary: In a published opinion with a separate concurrence, the United States Court of Appeals for the Fourth Circuit found that a civil lawsuit filed under 42 U.S.C. § 1983 (hereinafter section 1983) is barred when the plaintiff's allegedly unconstitutional conviction or incarceration has not been invalidated through either state or federal review.

Extended Summary: On March 8, 1982, in Baltimore City Circuit Court, Wendell Griffin was convicted and sentenced to life in prison for murder and a related weapons charge. During the first twenty-eight years of his incarceration, Griffin made several attempts to appeal his conviction and challenge his incarceration, including a petition for federal habeas relief. None were successful.

In 2010, almost 30 years later, Griffin filed a pro se petition seeking post-conviction DNA testing of certain evidence, authorized by state law. In response, the circuit court appointed Griffin counsel. With assistance from counsel, Griffin uncovered potentially exculpatory evidence. At an initial evidentiary hearing, the circuit court found that the state's search for evidence related to Griffin's case was reasonable and the court declined to address the issue of whether the evidence was intentionally withheld until a later hearing. In February 2012, Griffin filed an unopposed motion to modify his life sentence to time served, which the circuit court granted. Griffin received three years of unsupervised probation. The probation was terminated early in December 2012.

No longer in custody, Griffin sued the Baltimore City Police Department and three of its former detectives under section 1983 in the United States District Court for the District of Maryland for their alleged role in concealing potentially exculpatory evidence. The district court dismissed Griffin's claim.

In a unanimous decision, the United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of Griffin's claim. The court found that section 1983 claims alleging an unlawful withholding of exculpatory evidence may not lie when the underlying conviction has neither been invalidated nor compromised through state or federal means.

Section 1983 claims are barred when, if successful, the claim would undermine the validity of a still-valid, prior conviction. As the Supreme Court explained in Heck v. Humphrey, there are two concerns that support such foreclosure. First, a successful section 1983 plaintiff could win damages premised on the wrongfulness of a still-valid conviction, resulting in "two conflicting resolutions" to the same controversy. Second, a section 1983 claim is, in effect, a collateral attack on a conviction, yet Congress has designated habeas corpus as the exclusive federal remedy for state prisoners seeking release from confinement.

The court recognized some exceptions to the bar articulated in Heck. First, section 1983 claims that do not necessarily compromise a still-valid conviction may still proceed. Second, if a section 1983 plaintiff could not have practically sought habeas relief while in custody, then a post-release 1983 complaint will not be barred by Heck.

The court held that Griffin's section 1983 claim was barred because he alleged an unlawful withholding of exculpatory evidence, which, if successful, would necessarily compromise the underlying conviction. Therefore, because Griffin's state conviction is still-valid, Heck barred Griffin's section 1983 claim. The court also explained that Griffin's release from custody did not alter this result because to do so would impermissibly turn section 1983 into a new front for federal post-conviction review.

The court further held that Griffin's section 1983 claim was barred because he had ample opportunity to seek federal habeas relief while in custody. The court explained that Griffin had the right to file the state authorized petition which ultimately led to the discovery of the exculpatory evidence during his three decades of incarceration. Moreover, even after the exculpatory evidence was found, Griffin was incarcerated for sixteen additional months - during which time he could have petitioned for habeas review. Therefore, the court concluded, Griffin's section 1983 claim ran square into the Heck bar again.

In dicta, the court made clear that its opinion did not foreclose Griffin from all recourse related to his alleged unlawful incarceration. Griffin may employ state remedies to either recover damages or to invalidate his conviction. Using section 1983 to mount a collateral attack on a still-valid state conviction, however, would intrude on long-settled principles of federalism and dual-sovereignty. Instead, habeas corpus is the appropriate means to mount such an attack.

In her concurrence, Judge Harris agreed with the majority on all points, but she highlighted the fact that the decision is in no way a judgment on the merits of Griffin's section 1983 claim. Rather, to be consistent with Heck, Griffin must invalidate his state conviction through state procedure before seeking federal relief through section 1983.

To read the full opinion click here.

Panel: Judges Wilkinson, Agee, and Harris

Argument Date: 09/17/2015

Date of Issued Opinion: 10/27/2015

Docket Number: Case No. 14-1494

Decided: Affirmed by Published Opinion

Case Alert Author: Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore, Maryland, for Appellant. Daniel C. Beck, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Sarah F. Lacey, LEVIN & CURLETT LLC, Baltimore, Maryland, for Appellant. George A. Nilson, City Solicitor of Baltimore City, Suzanne Sangree, Chief, Glenn Marrow, Deputy Chief, Police Legal Affairs Division, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.

Author of Opinion: Judge Wilkinson

Concurring Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 03:04 PM     4th Circuit     Comments (0)  

  United States v. Patiutka -- Fourth Circuit
No Warrant? No Probable Cause? No Exception to the Fourth Amendment Says the Fourth Circuit

Areas of Law: Criminal Procedure

Issue Presented: Whether the warrantless search of Patiutka's car was incident to his arrest or fell within the automobile exception to the Fourth Amendment's warrant requirement.

Brief Summary: Following a warrantless search of Dmytro Patiutka's car, Virginia State Troopers discovered a credit card reader, credit card embosser, credit card re-encoder, and four new iPads. The officers arrested and questioned Patiutka. He was later charged with access device fraud and aggravated identity theft. Mr. Patiutka moved to suppress the evidence found during the search and any statements he made when arrested. The district court granted the motion to suppress because the search was not incident to Patiutka's arrest and it did not fall within the automobile exception to the Fourth Amendment.

Extended Summary: In 2013, Virginia State Trooper G.S. Cox pulled over Dmytro Patiutka for traffic violations. Although Patiutka's driver's license contained a different name and birth date from what Cox thought he had been given, the trooper told Patiutka that he was, "free to go." In his mind, however, Trooper Cox did not think Patiutka was free to leave, so he asked Patiutka for consent to search his car. It is unclear whether consent was actually given when Trooper Cox, with the assistance of Trooper Moore and other officers who had arrived, began to search Patiutka's car. They found a bag with a credit card reader and a suitcase with 4 new iPads. At this time, Patitutka asked why the officers were searching his car, and Cox responded, "I asked you could I search your car." Patiutka then told Cox to close the car, and Trooper Cox told the other officers to stop searching the car. Trooper Moore stopped searching the car and announced he was placing Patiutka into "investigative detention." With Patiutka in investigative detention, the officers continued to search Patiutka's car for 50 minutes, finding a credit card embosser, a credit card re-encoder, and blank credit cards. Following the search, Patiutka was taken to the police station and questioned by Trooper Moore and Secret Service agents. Patiutka made incriminating statements during this interview and was later charged with access device fraud and aggravated identity theft. Patiutka moved to suppress the physical evidence and statements resulting from the search of the car.

The United States District Court for the Western District of Virginia granted the motion to suppress and rejected the government's arguments that the search was incident to Patiutka's arrest or fell within other Fourth Amendment exceptions to the warrant requirement. The Fourth Circuit reviewed the grant of the motion to suppress de novo and reviewed the factual findings by the district court for clear error.

On appeal, the government argued that the search of Patituka's car was incident to his arrest. Police officers are allowed to search a vehicle incident to arrest when the arrestee is unsecured and close to the passenger compartment or it is reasonable to believe the vehicle contains evidence relating to the offense of arrest. The government argued that Trooper Cox had probable cause to arrest Patiutka for providing a false identity, and the car search was incident to the arrest for providing false identity information.

The district court found there was not probable cause to arrest Patiutka. The district court viewed the dashboard video of the stop and found that (1) Trooper Cox did not ask Patiutka any follow-up questions about the differing birthdates; (2) the Trooper asked for and believed he received consent to search the car, and the Trooper called off the search when consent was revoked; and (3) it is unclear what Patiutka said about his birthdate because of highway traffic, a barking police dog and Patiutka's foreign accent. The United States Court of Appeals for the Fourth Circuit found that probable cause to arrest Patiutka only arose after the officers discovered the credit card materials, so the search was not incident to Patiutka's arrest.

The government also argued the search fell under the automobile exception to the warrant requirement. Police officers may search a car without a warrant if they have probable cause to believe the car contains evidence of criminal activity. The district court found there was not an objective basis for probable cause to search because there are harmless reasons why one would be in possession of a credit card reader and four new iPads, and Officer Cox failed to question Patiutka after discovering these objects. The Fourth Circuit agreed with the district court, stating that the automobile exception did not apply because it requires police to have probable case and there was none.

Finally, the government argued the officers had probable cause to arrest due to the collective knowledge doctrine. The collective knowledge doctrine directs the court to "substitute the knowledge of the instructing officer or officers for the knowledge of the acting officer." Collective knowledge does not, however, allow a court to aggregate disparate pieces of information from many officers to create probable cause. The district court and Fourth Circuit agreed that the collective knowledge doctrine did not apply because, as instructing officer, Trooper Cox did not have probable cause to conduct the search and, when Patiutka revoked consent, the search was called off.

The district court's grant of the motion to suppress was affirmed.

To read the full opinion click here.

Panel: Judges Motz, Wilkinson, and Agee

Argument Date: 9/15/2015

Date of Issued Opinion: 10/23/15

Docket Number: No. 14-4932

Decided: Affirmed by published opinion.

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellant. Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellee. ON BRIEF: Anthony P. Giorno, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellant. Larry W. Shelton, Federal Public Defender, Christine Madeleine Lee, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellee.

Author of Opinion: Judge Motz

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 02:49 PM     4th Circuit     Comments (0)  

  United States v. Andrews -- Fourth Circuit
Honesty Is the Best Policy: Fourth Circuit Upholds Sentence Enhancement of Man Who Allowed Alibi Witnesses to Falsely Testify on His Behalf

Areas of Law: Criminal Law, Criminal Procedure

Issue Presented: Whether a defendant's sentence enhancement level should be raised for obstruction of justice when the defendant knowingly allows his alibi witnesses to falsely testify on his behalf.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit found no clear error in the United States District Court for the Middle District of North Carolina's imposition of a two-level sentence enhancement on a man whose alibi witnesses falsely claimed he was at their home during the time of a reported robbery.

Extended Summary: On March 27, 2011, a man believed to be Albert Lee Andrews III ("Andrews"), entered a Domino's Pizza in Kannapolis, North Carolina, armed with a handgun. He ordered an employee at gunpoint into the store's office and demanded that the manager who was working in the office, open the safe. When he was told the safe was empty, Andrews stole money from the cash registers and from two employees. He also stole the manager's wallet.

The store manager immediately reported the robbery to the police. While searching for Andrews, a police officer found an abandoned vehicle that had hit two other vehicles before running off of the road. From that vehicle, the police officer recovered two wallets, one belonging to Andrews and the other to the Domino's Pizza store manager. The officer also recovered a cell phone that had pictures of Andrews' family as well as listed calls made and received in Kannapolis at the time of the robbery, a traffic citation that was issued to Andrews, a bill of sale for the vehicle showing that Andrews owned it, and a baseball cap that was later proven by DNA analysis to belong to Andrews.

Andrews was charged with interfering with commerce by robbery under 18 U.S.C § 1951, and carrying and using a firearm during and in relation to a crime of violence under 18 U.S.C § 924 (c) (1) (A) (ii). Andrews pled not guilty and invoked his right to a jury trial. Andrews also filed several pro se motions, one of which accused prosecutors of intimidating potential witnesses and blocking their testimony as well as submitted a notice of alibi and a brief describing the alibi testimony.

In the opening statements at trial, Andrews' attorney identified two alibi witnesses, Jerrika Hunter ("Hunter"), Andrews' girlfriend, and Hunter's mother, Monica Moffet ("Moffet"). Hunter and Moffet testified that Andrews was at their home in Charlotte at the time of the robbery. This testimony was found to be false. Another witness, Brandi Lark, the mother of one of Andrews' children, testified that Andrews visited her home during the night in question and told her that he robbed the Domino's. Andrews chose not to testify and the jury found him guilty on all counts.

In 2013, the Fourth Circuit reviewed Andrews' sentence and ruled that he no longer qualified for sentencing as a career offender. As a result, the court vacated Andrews' sentence and remanded the case for resentencing. On remand, the United States Probation Office calculated Andrews' total offense level as 22. However, the government requested a two-level enhancement for obstruction of justice under U.S.S.G § 3C1.1 on the grounds that Andrews knowingly allowed the witnesses to be called and give false testimony.

The requested enhancement was granted and Andrews objected. However, the District Court found that Andrews' knowledge that his attorney was going to present Hunter and Moffet as alibi witnesses, his watching and listening to the false testimony, and his subsequent silence during trial amounted to obstruction of justice. The court resentenced Andrews to 115 months imprisonment on one count, 84 months consecutive on the other, and five years of supervised release.

U.S.S.G § 3C1.1 states that a sentence enhancement level may be increased by two levels if the defendant willfully obstructs or impedes or attempts to obstruct or impede the administration of justice with respect to the investigation, prosecution or sentencing of the offense of conviction. Moreover, the commentary of §3C1.1 lists subornation of perjury as an example of a covered conduct and states that a defendant can obstruct justice through his own conduct and through the conduct of others that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.

The Fourth Circuit noted that in U.S. v. Dunnigan, the Supreme Court instructed district courts to establish all of the factual predicates of perjury when finding obstruction of justice on that basis. 507 U.S. 87, 95 (1993). However, the Fourth Circuit also explained that the district court's obligation is to find facts on the critical component of § 3C1.1, which is a willful obstruction or impediment of the administration of justice. Further, a sentence enhancement is warranted if the court below made a proper finding of obstruction even if it did not find subornation of perjury. The court also explained that for deterrent and efficiency purposes, the district court must be afforded adequate discretion in its fact finding capacity as it holds a special advantage in fact finding when the sentence enhancement is based on testimony or trial proceedings that it previously observed.

The Fourth Circuit found no clear error in the district court's imposition of the sentence enhancement due to the overwhelming evidence that placed Andrews at the scene of the crime. This fortified the district court's conviction that the testimony of Andrews' alibi witnesses was patently false. Moreover, the Fourth Circuit agreed that Andrews was aware in advance of the trial that his alibi witnesses were planning to present false testimony, as he was put on notice through the notice of alibi, opening statements, the trial brief, and his pro se motion. The Fourth Circuit also agreed that although Andrews did not take the stand and personally perjure himself, the evidence showed that Andrews knowingly presented and actively orchestrated the presentation of false testimony, making him guilty of obstructing justice.

Andrews suggested that the imposition of the sentence enhancement penalized him from exercising his Fifth Amendment right to remain silent. However, the Fourth Circuit found that Andrews suffered no such penalty as the fact that the dynamics of a trial may present a defendant with difficult tactical choices such as taking the stand to rebut evidence, has never been held to infringe on the defendant's right to remain silent. The court also found that Andrews was not deprived of his right to present a vigorous defense as this right has never included the right to present false testimony. Lastly, the Fourth Circuit found that Andrews' right to counsel was also not violated as he was represented by counsel throughout the proceedings and there was no attempt to probe the content of his counsel's communication with him.

In concluding its analysis, the Fourth Circuit cautioned that not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice and that an obstruction of justice sentence enhancement should only be used in situations like the present where it is needed to safeguard the integrity of the proceeding.

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

Panel: Judges Wilkinson, Motz, and Keenan

Argument Date: 9/15/15

Date of Issued Opinion: 10/30/15

Docket Number: Case No. 14-4422

Decided: Affirmed by published opinion.

Case Alert Author: Simone Chukwuezi, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Kearns Davis, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina, for Appellant. Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee. ON BRIEF: W. Michael Dowling, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 12:44 PM     4th Circuit     Comments (0)  

  Oberg v. Pennsylvania Higher Education Assistance Agency -- Fourth Circuit
Whistleblower Suit Gets Go-Ahead from Fourth Circuit

Areas of Law: Constitutional Law, 11th Amendment

Issue Presented: Whether Pennsylvania Higher Education Assistance Agency is an arm of the Pennsylvania state government and thus immune from civil suit.

Brief Summary: In the third installment in a series of cases stemming from the same litigation, the Fourth Circuit held that the Pennsylvania Higher Education Assistance Agency (PHEAA) was not an arm of the Pennsylvania state government and reversed the grant of summary judgment for PHEAA.

Extended Summary:
This case is the third case that has come before the Fourth Circuit stemming from a whistleblower suit brought by Jon Oberg against several student loan servicers and providers. Oberg brought suit under the False Claims Act, alleging that the defendants inappropriately claimed federal student loan interest subsidy payments.

In Oberg II, the court reversed the District Court's ruling that PHEAA was an arm of the Pennsylvania state government and thus immune from suit, and remanded for further discovery on PHEAA's status as a state agency. After discovery, the District Court ruled that PHEAA was an arm of Pennsylvania government and granted summary judgment for PHEAA which resulted in this opinion.

The Fourth Circuit considered four factors when evaluating whether PHEAA was an arm of the state for the purposes of immunity from suit. These factors are whether any judgment would be paid by the State; how much autonomy is exercised by the organization; whether the organization involves itself with State concerns; and how the organization is treated under State law.

The court held that the first factor, whether a judgment would be paid by the State, weighed against PHEAA being held to be an arm of the State. PHEAA controls substantial revenue and assets. In the past, when PHEAA has settled other legal disputes, PHEAA paid the agreed upon settlements from its own funds rather than from State assets. Turning to the second factor, the court held that PHEAA was autonomous from the State government, citing its control over its substantial revenues and testimony from officers regarding the lack of legislative oversight. The Fourth Circuit next held that the third factor, whether the organization was involved with State concerns, weighed in favor of PHEAA being a state entity. The court found that PHEAA was primarily concerned with accessibility of higher education and that this was a state concern. Finally, as to the fourth factor, the court held that the PHEAA was treated as a State entity under State law. Balancing all four factors, the court ultimately held that PHEAA was not an arm of the state and that summary judgment was improperly granted.

The instant ruling - that PHEAA was not protected by Eleventh Amendment immunity - was applied by the Fourth Circuit in Pele v. Penn. Higher Educ. Assistance Agency, No. 14-2202, 2015 WL 6162942 (4th Cir. Oct. 21, 2015). In Pele, the court vacated and remanded the district court's grant of summary judgment in favor of PHEAA. Plaintiff Pele is now able to proceed with his suit against PHEAA under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., for refusing to remove information he claims was erroneous from his credit reports.

To read the full opinion in Oberg click here. To read the full opinion in Pele click here.

Panel: Chief Judge Traxler and Judges Gregory and Keenan

Argument Date: 05/12/2015

Date of Issued Opinion: 10/21/2015

Docket Number: 15-1093

Decided: Reversed and remanded.

Case Alert Authors: Kathleen DeNobile and J'Naia Boyd, Univ. of Maryland Carey School of Law

Counsel: Bert Walter Rein, WILEY REIN LLP, Washington, D.C., for Appellant. Paul D. Clement, BANCROFT PLLC, Washington, D.C., for Appellee. ON BRIEF: Michael L. Sturm, Brendan J. Morrissey, Stephen J. Obermeier, WILEY REIN LLP, Washington, D.C., for Appellant. John S. West, Megan C. Rahman, Richmond, Virginia, Christopher G. Browning, Jr., TROUTMAN SANDERS LLP, Raleigh, North Carolina, for Appellee Vermont Student Assistance Corporation; George W. Hicks, Jr., Raymond P. Tolentino,
BANCROFT PLLC, Washington, D.C., Joseph P. Esposito, Jill M. deGraffenreid, HUNTON & WILLIAMS LLP, Washington, D.C., Daniel B. Huyett, Neil C. Scur, STEVENS & LEE P.C., Reading, Pennsylvania, for Appellee Pennsylvania Higher Education Assistance Agency.

Author of Opinion:
Chief Judge Traxler

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 12:07 PM     4th Circuit     Comments (0)  

  Porter v. Zook -- Fourth Circuit
It's All About Who You Know: Fourth Circuit Remands Case Where Law Student Discovers Juror Relationship that Could Lead to Finding of Actual Bias in Murder Trial

Areas of Law: Criminal Law, Criminal Procedure, Federal Appellate Jurisdiction

Issue Presented: Whether the Fourth Circuit has jurisdiction over a habeas corpus petition when the District Court did not consider all of the appellant's claims, particularly one of actual juror bias.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit dismissed and remanded a challenge to the dismissal of a habeas corpus petition for lack of jurisdiction where the District Court's failed to consider Thomas Porter's claim of actual juror bias.

Extended Summary: In 2007, following a month-long manhunt, a jury in Arlington County, Virginia, convicted Thomas Porter of capital murder, grand larceny, and use of a firearm in commission of a felony for shooting a Norfolk police officer. The jury sentenced Porter to death, and a lengthy appeals process followed in the state and federal courts.

In the most recent decision in the Porter saga, the Fourth Circuit considered the District Court for the Eastern District of Virginia's dismissal of Porter's petition for writ of habeas corpus. The Fourth Circuit, however, never reached the merits of Porter's case because it determined it did not have jurisdiction. Specifically, the court held that the lower court did not make a final decision on Porter's claim of actual juror bias.

During the jury selection process at Porter's trial, the judge asked potential jurors whether they were related to law enforcement officers. One juror, Mr. Treakle, revealed that he had a nephew who was an officer in Arlington, but assured the judge that he could remain impartial. Mr. Treakle failed to tell counsel about his brother, who was a deputy sheriff in the town that borders Norfolk, where the crime took place.

While conducting an investigation for Porter's appeal, a law student interviewed the jurors who decided Porter's guilt, including Mr. Treakle. In an affidavit, Mr. Treakle admitted that he was very moved by the testimony of the officer's widow because he had a brother who was a deputy sheriff. Based on this new information, Porter raised two distinct, but related, juror bias claims in his federal habeas petition in District Court. On appeal, the Fourth Circuit determined that the District Court considered only the first claim, but not the second.

First, Porter raised a claim based on Mr. Treakle's conduct during voir dire, which the District Court analyzed under the standard identified in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). McDonough allows for a new trial if a juror fails to honestly answer a material question. The District Court ruled that although Mr. Treakle did not reveal all of his connections to law enforcement, he technically did not give false information during voir dire. Counsel was responsible for asking follow-up questions, which they failed to do.

Second, Porter claimed that Treakle was actually biased, or "biased in fact" because of his close relationship with his brother, who was an officer in a jurisdiction that participated in the manhunt for Porter. See Smith v. Phillips, 455 U.S. 209 (1982). The Fourth Circuit pointed out that the actual bias claim could succeed, even though the corresponding McDonough claim failed below. The Fourth Circuit cited a Fifth Circuit case, United States v. Scott, 854 F.2d 697, 698 - 700 (5th Cir. 1988), where a new trial was granted based, similarly, on a juror's undisclosed relationship to a deputy sheriff. According to the Fourth Circuit, the District Court failed to analyze this separate claim. Therefore, the Fourth Circuit panel remanded the case without comment on the merits so that the lower court could make a final decision on the actual bias claim.

To read the full opinion, click here.

Panel: Judges Shedd, Thacker, and Harris.

Argument Date:
September 16, 2015

Date of Issued Opinion: October 20, 2015

Docket Number: No. 14-5

Decided: Dismissed and remanded by published opinion

Case Alert Author: Natalie Bilbrough, Univ. of Maryland Carey School of Law

Counsel: Dawn Michele Davison, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Robert Lee, Lindsey Layer, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia; Brian K. French, NIXON PEABODY, LLP, Boston, Massachusetts; Trey Kelleter, VANDEVENTER BLACK, LLP, Norfolk, Virginia, for Appellant. Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 11:50 AM     4th Circuit     Comments (0)  

  United States v. Spencer -- Fourth Circuit
Rinse and Resentence: Court Demands New Sentence for Fluoride-Wielding Defendant

Areas of Law: Criminal Law, Sentencing

Issue Presented: Whether a defendant's sentence enhancement for evidence of intent to commit a crime was proper when the defendant sent dried toothpaste in a threatening letter.

Brief Summary: Todd Allen Spencer pled guilty to one count of threat to injure by communication under 18 U.S.C. § 876(c). Spencer sent a letter to the Clerk of the United States District Court for the Eastern District of Virginia that contained written threats and dried, powdery toothpaste. Spencer was sentenced to 46 months incarceration and was subject to a six-level sentencing enhancement under U.S. Sentencing Guidelines Manual § 2A6.1(b)(1). This enhancement was for "conduct evidencing an intent to carry out such threat." The Fourth Circuit held that Spencer's conduct in including the dried toothpaste did not demonstrate intent to carry out his threats, vacated his original sentence, and remanded for resentencing.

Extended Summary: Defendant Todd Allen Spencer mailed a letter to the Clerk of the United States District Court for the Eastern District of Virginia. In that letter, Spencer included a threat to kill or injure the letter's recipient, and also included in the envelope what the court describes as "dried, powdery toothpaste." Spencer subsequently pled guilty to one count of threat to injure by communication under 18 U.S.C. § 876(c).

At sentencing, the Government sought a six-level enhancement under U.S. Sentencing Guidelines Manual § 2A6.1(b)(1), on the grounds that "the offense involved . . . conduct evidencing an intent to carry out such threat." The district court found that Spencer's inclusion of the dried toothpaste was evidence of his intent to kill or harm the Clerk and applied the six-level enhancement. Spencer was sentenced to 46 months of incarceration.

On appeal to the United States Court of Appeals for the Fourth Circuit, Spencer argued that the district court erred in applying this enhancement. The application of this enhancement turns on "the defendant's intent and the likelihood that the defendant would carry out the threat." United States v. Worrell, 313 F.3d 867, 876 (4th Cir. 2002). As such, threats alone are not sufficient to justify inclusion of the § 2A6.1(b)(1) enhancement.

While the application notes for § 2A6.1(b)(1) do not include any example of applicable conduct, the Fourth Circuit looked at Sentence Guideline Manual § 2M6.1, which pertains to biological agents and toxins. This section is cross-referenced by the "intent to commit" section that was used to lengthen Spencer's sentence. The notes to the "biological agents and toxins" section state that "a defendant does not engage in conduct evidencing an intent to carry out a threat to use a biological agent or toxin by dispersing a substance that appears to be an agent or toxin but is not, and the defendant knows is not, an actual biological agent or toxin."

Based on this language, the Fourth Circuit concluded that Spencer did not have the necessary intent to kill or injure the letter's recipient that is required to qualify for the six-level enhancement under § 2A6.1(b)(1). The court found that inclusion of the dried toothpaste did not show Spencer's subjective intent to actually harm another individual or make his threats any more dangerous.

The court did consider whether the error committed by the district court was harmless, but concluded that it was not. The court noted that nothing in the record indicated that the district court would have been inclined to sentence above the guidelines had this enhancement not been applied, and that clearly the application of the enhancement lengthened Spencer's eventual sentence. Because the district court erred in applying the sentence and the error was not harmless, the Fourth Circuit vacated Spencer's original sentence and remanded his case to the district court for resentencing.

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

Panel: Judges Shedd, Duncan and Davis

Argument Date: N/A

Date of Issued Opinion: October 20, 2015

Docket Number: 15-4060

Decided: Sentence vacated and remanded to the district court for resentencing

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: Geremy C. Kamens, Acting Federal Public Defender, Frances H. Pratt, Rodolfo Cejas, II, Assistant Federal Public Defenders, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, William D. Muhr, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Author of Opinion:
Per curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 11:40 AM     4th Circuit     Comments (0)  

  O.S. v. Fairfax County School Board -- Fourth Circuit
The ABCs of IDEA: What Does it Mean to Get a Free and Appropriate Public Education

Areas of Law: Education, Administrative

Issue Presented: Whether the Individuals with Disabilities Education Act ("IDEA") requires the school board's Individualized Education Programs ("IEP") to give each student a meaningful educational benefit.

Extended Summary: This case arises from a couple's challenge to the IEP that Fairfax County Public Schools implemented for their child, O.S., in the second grade. An IEP is required under IDEA to ensure that students with disabilities are given a "free and appropriate public education." It is also intended to give the student meaningful access to an educational benefit.

In this case, the student, O.S., had significant physical handicaps including a seizure disorder, a speech impediment, and a congenital heart condition. These conditions qualified O.S. as disabled under IDEA and thus required the school, in collaboration with O.S.'s parents, to develop IEPs for the student on a yearly basis. The first IEPs were developed for kindergarten and first grade and included speech therapy and in-class education, as well as special education and physical education. The parents agreed to these IEPs. However, when the second grade was approaching, the school made small revisions to the previous IEPs that the parents did not agree with.

IDEA allows parents to challenge an IEP in an administrative process if they do not agree with the school's assessment. The parents raised such a challenge because they felt O.S. should have access to both a one-on-one personal aide and a full-time nurse. In the administrative proceeding, the school presented fourteen witnesses and over two hundred exhibits detailing the progress that O.S. had been making under the current IEPs. The parents presented no witnesses and introduced only two tests suggesting that O.S. had regressed in his educational process due to the lack of one-on-one aide and full-time nursing services. The hearing was decided in favor of the school, and the parents appealed to the U.S. District Court for the Northern District of Virginia.

On appeal, the district court gave the requisite deference to the administrative process and determined that the school's IEPs were appropriate under the current law without the nurse and one-on-one aide. The parents argued that IDEA required that a student be given the tools necessary for meaningful educational benefit, which had not been achieved. The district disagreed and affirmed the administrative decision.

Since this was a statutory interpretation challenge to IDEA, the U.S. Circuit Court for the Fourth Circuit reviewed the District Court's decision de novo. In determining whether IDEA requires a meaningful education benefit to the student, the court held that the controlling law was decided in United States v. Rowley. In that case, the Supreme Court found that while IDEA requires meaningful access to a "free and appropriate public education," it only requires that the access be tailored to give the student some educational benefit. Despite this precedent, O.S. argued that 1997 and 2004 amendments to IDEA changed this standard. Relying on the restructured preamble indicating that Congress wanted to focus on providing higher expectations for students with special needs, as well as a decision by the 9th Circuit, O.S. argued that Congress changed the standard to require meaningful benefit to the student, not just meaningful access. The Fourth Circuit was not persuaded and held if Congress meant to derogate Supreme Court precedent it would have done so expressly. The court further stated that the educational benefit required was already determined to be meaningful under the current Rowley standard and that the school need only meet this standard when tailoring a student's access to a free and appropriate public education.

Panel: Judges Motz, Wynn, and Davis

Argument Date: 09/16/2015

Date of Issued Opinion: 10/19/2015

Docket Number:
No. 14-1994

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Dennis Craig McAndrews, MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellants. John Francis Cafferky, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: Michael Edward Gehring, Caitlin Elizabeth McAndrews, MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellants. Patricia A. Minson, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellee.

Author of Opinion: Alexander H. Kelly, Univ. of Maryland Carey School of Law.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 11:20 AM     4th Circuit     Comments (0)  

  United States v. Slocumb -- Fourth Circuit
Just a Hunch: Fourth Circuit Vacates Conviction of Virginia Man in the Wrong Place, at the Wrong Time, for the Right Reasons

Areas of Law: Constitutional Law, Criminal Procedure

Issue Presented: Whether Culpeper, Virginia police obtained evidence and statements from the appellant in violation of the Fourth Amendment when they detained and arrested him after encountering him around midnight in the parking lot of a closed commercial business located in a known drug-trafficking area, then searched a car he had borrowed after his girlfriend, who was also present, consented to its search?

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit reversed, vacated, and remanded Andre Slocumb's case for further proceedings because the court concluded the Culpeper police did not have reasonable suspicion to detain him. In reaching its conclusion, the court found the Culpeper police had not articulated reasons why Slocumb's presence in the business's parking lot after hours, his behavior, and reason for being there - his girlfriend's car had broken down - added up to suspicion of criminal activity.

Extended Summary: On March 18, 2013, the Culpeper Police Department was preparing to execute a drug warrant on a target house. As part of its operation, the police used the parking lot of a salvage yard located across the street from the target house. The police arrived at the salvage yard around midnight, after the business was closed. Upon their arrival they encountered the appellant, Andre Slocumb, and his girlfriend, Sierra Lewis, with a baby. Slocumb and Lewis were in the process of transferring a car seat from a Cadillac to a Honda. One of the police officers, Lieutenant Timothy Chilton, approached the couple to inquire why they were in the salvage yard's parking lot. Slocumb explained that his girlfriend's car had broken down and he had come to pick her up. Although their conversation lasted less than a minute, Chilton thought Slocumb was "acting evasively" because he did not make eye contact and mumbled his answers to the officer's questions. Chilton then called Officer Grant over to stay with Slocumb and Lewis while he went to help the other officers execute the search warrant. Slocumb overheard Chilton tell Grant that he and Lewis "were not allowed to leave."

While waiting for Chilton to return, Slocumb told Grant he was in the salvage yard's parking lot to help his girlfriend whose car had broken down, and that he had borrowed his landlord's car, the Honda, to come pick her up. The explanation Slocumb gave Grant was consistent with what he told Chilton. Grant asked Slocumb for identification; he did not have any, but he told the officer his name was "Anthony Francis." Grant ran the name through dispatch, which returned a person with the same name whose description matched Slocumb's physical appearance. Grant asked Slocumb whether he was carrying anything illegal; Slocumb said no. Grant then asked Slocumb for consent to search him; Slocumb declined to consent to a search. Grant also explained why he and the other officers were in the area and asked Slocumb if he was aware of drug trafficking in the area; Grant thought that Slocumb became increasingly nervous over the course of questioning.

After about ten minutes, Chilton returned and Grant reported to him that Slocumb had given the name "Anthony Francis," which was consistent with the information Grant had received from dispatch. Chilton asked Slocumb additional questions regarding his identity to which he thought Slocumb provided inconsistent responses. Grant then asked Lewis for Slocumb's name, which she said was "Hakeem." Chilton and Grant recognized the name as that of an individual who was under investigation for drug trafficking. The officers then placed Slocumb under arrest for providing a false name and searched him. The search revealed almost $6,000.

After Chilton and Grant searched Slocumb, Officer Richard McKnight, who had helped execute the search warrant on the target house, came over to the salvage yard parking lot. McKnight questioned Lewis about Slocumb and asked her for consent to search the Honda; she consented. Upon searching the car, the police found methamphetamine, cocaine powder, and cocaine base under the passenger's seat. They also found Slocumb's landlord's purse, which contained a small amount of marijuana, in the trunk. Slocumb admitted the drugs were his, and the police took him to a magistrate's office where he made additional incriminating statements. Based on Slocumb's statements, the police obtained a warrant to search Slocumb's house. Their search uncovered marijuana smoking devices, a small amount of white powder, and other items.

Prior to trial, Slocumb filed a motion to suppress evidence and statements he made to the police. The district court denied Slocumb's motion, finding that the officers had reasonable suspicion to detain him and probable cause to arrest him. The district court also concluded that Lewis had apparent authority to consent to the search of the Honda. Slocumb pleaded guilty, but retained his ability to appeal the motion to suppress.

On appeal, Slocumb first argued that Chilton did not have reasonable suspicion to detain him. Because the parties agreed that Slocumb had been "seized," the court began its analysis by examining the totality of the circumstances to determine whether Chilton had reasonable suspicion to detain Slocumb. The Fourth Circuit examined the factors the district court considered when it denied Slocumb's motion to suppress: (1) the area around the salvage yard was a high-crime area; (2) it was after midnight; (3) Slocumb was in the parking lot of a business that had closed several hours earlier; (4) Slocumb's "evasive" behavior; and (5) that Slocumb's behavior was "inconsistent" with his explanation for why he was in the salvage yard parking lot. The court considered the first three factors together and noted that they support a finding of reasonable suspicion in general, but not as to a specific person. Next, the court considered Slocumb's behavior. Although the district court found that Slocumb had acted evasively because most people in Slocumb's situation would have welcomed a police officer, the Fourth Circuit rejected this rationale. The court found the fact that Slocumb did not attempt to flee or even leave the area weighed against finding reasonable suspicion because in other cases much more evasive behavior, such as walking away at a fast pace, did not support a finding of reasonable suspicion. Moreover, in cases where a defendant did not flee the scene, the Fourth Circuit has required more extreme signs of nervousness to find reasonable suspicion. Slocumb's mumbled responses, avoiding eye contact, and seemingly hurrying Lewis did not rise to the level of nervousness required to find reasonable suspicion. In concluding its analysis, the court noted that Chilton's suspicions should have been dispelled when Slocumb gave answers to Chilton's questions that were consistent with his actions.

The court rounded out its analysis with a reminder that the government cannot simply list factors and label them as suspicious; it must explain why those factors are indicative of criminal activity and therefore should support a finding of reasonable suspicion. The court did not reach Slocumb's probable cause and consent claims because it concluded that the police did not have reasonable suspicion to detain him.

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

Panel: Judges Gregory, Agee, and Diaz

Argument Date: 9/16/2015

Date of Issued Opinion: 10/22/2015

Docket Number: Case No. 14-4733

Decided: Reversed, vacated, and remanded for proceedings consistent with this opinion by published opinion.

Case Alert Author: Monica Basche, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, Christine Madeleine Lee, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Author of Opinion: Judge Gregory

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 10:59 AM     4th Circuit     Comments (0)  

November 29, 2015
  DC Comics v. Towle - Ninth Circuit
Headline: The Ninth Circuit creates a new three-prong test for determining whether a character in a comic book is entitled to copyright protection.

Areas of Law: Copyright and Trademark Law

Issues Presented: Whether an automobile, as it appeared in the comic books, television series, and motion picture is a character entitled to copyright protection where: (1) the automobile has physical and conceptual qualities; (2) is recognizable as the same character whenever it appears due to its consistent identifiable character traits and attributes, but does not have the same physical appearance in every context; and (3) the character is especially distinctive and is not a stock character.

Whether a manufacturer of replica automobiles violated exclusive copyrights when: (1) the material copied was of an authorized derivative work rather than the underlying work; (2) the allegedly infringing replicas look substantially different from any incarnation in the underlying work; and (3) the derivative work was created by third parties rather than the copyright owner.

Whether the doctrine of laches is available in cases of willful trademark infringement.

Brief Summary: Defendant-Appellant in a copyright and trademark infringement matter challenged the district court's entry of summary judgment on grounds that: (1) the Batmobile as it appeared in comic books, television series, and motion pictures was not entitled to copyright protection; (2) Defendant-Appellant's replicas of the Batmobile as it appeared in the 1966 television series and 1989 motion picture did not infringe any copyrights; and (3) Defendant-Appellant was entitled to assert a laches defense. Relying on precedent, including Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213 (9th Cir. 2008), the panel created a new three-prong test to determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection; application of the new test led the panel to conclude that the Batmobile was a character entitled to copyright protection. The panel, guided by its prior decision in Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994) and the First Circuit's decision in Gamma Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106 (1st Cir. 1993), then determined that Defendant-Appellant's replicas of the Batmobile as it appeared in the 1966 television series and 1989 motion picture infringed DC's copyrights notwithstanding that Defendant-Appellant's replicas were copies of derivative works because the author of an original underlying work has standing to sue a third party who makes an unauthorized copy of an unauthorized derivative work to the extent that the material copied derived from the underlying work. Finally, the panel, applying Evergreen Safety Council v. RSA Network, Inc., 697 F.3d 1221, 1228 (9th Cir. 2012) and Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1406 (9th Cir. 1993), determined that the doctrine of laches cannot be raised in cases of willful infringement.

Significance: The Ninth Circuit created a new three-prong test for determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection. First, the character must generally have "physical as well as conceptual qualities." Second, the character must be "sufficiently delineated" so as to be recognizable as the same character whenever it appears by displaying consistent identifiable character traits and attributes, but it need not have a consistent appearance. Third, the character must be "especially distinctive" and "contain some unique elements of expression," but cannot be a stock character. The Ninth Circuit also reaffirmed that the author of an original underlying work has standing to sue a third party who makes an unauthorized copy of an unauthorized derivative work to the extent that the material copied derived from the underlying work and that the doctrine of laches cannot be raised in cases of willful infringement.

Extended Summary:

Plaintiff-Appellee, DC Comics (DC) is the publisher and copyright owner of the Batman character and Batman's personal crime-fighting vehicle, the Batmobile. Defendant-Appellant, Mark Towle, an individual, DBA Garage Gotham (Towle) manufactured and sold replicas of the Batmobile as it appeared in the 1966 television series and the 1989 motion picture and kits that allowed customers to modify their own cars to look like the Batmobile as it appeared in the 1966 television series and the 1989 motion picture. Towle also advertised each replica as the "Batmobile" and used the domain name batmobilereplicas.com to market his business.

DC sued Towle for, inter alia, copyright infringement, trademark infringement, and unfair competition arising from Towle's business of manufacturing and selling Batmobile replicas. The parties thereafter filed cross motions for partial summary judgment as to DC's infringement and unfair competition claims and Towle's laches defense.

In a published order, the District Court granted in part and denied in part, DC's motion for summary judgment and denied Towle's cross motion for summary judgment. Specifically, the District Court held that: (1) the Batmobile was a character entitled to copyright protection; (2) DC maintained a copyright in the Batmobile as it appeared in both the 1966 television show and the 1989 motion picture based on DC's ownership of the merchandising rights; (3) DC owned a copyright in the Batmobile as it appeared in the 1966 television show and the 1989 motion picture because each was derived from the Batmobile depicted in DC's comics; (4) Towle infringed upon DC's copyright because his replicas copied the Batmobile as it appeared in the 1966 television show and the 1989 motion picture; (5) Towle acted in bad faith and intentionally copied DC's trademarks to associate his replicas with the Batman franchise; and (6) DC was not entitled to summary judgment on Towle's laches defense as to the copyright infringement claim because there was a genuine issue of material fact as to whether Towle was aware that copying the Batmobile as depicted in the 1966 television show and the 1989 motion picture constituted copyright infringement.

The first issue raised on appeal was whether the Batmobile, as it appeared in the comic books, television series, and motion picture was entitled to copyright protection. Towle argued that the Batmobile was not a character that qualified for copyright protection because in previous incarnations, the Batmobile appeared without its signature "sleek 'bat-like' features," the panel noted that copyright protection extends to "sufficiently distinctive" elements like comic book characters, contained within an original work.

To determine whether an automotive character that appeared in comic books, on television, and in a motion picture was entitled to copyright protection, despite changes in appearance, the panel was guided by its prior decision in Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213 (9th Cir. 2008).
The Halicki court stated that a character may be afforded copyright protection if it has distinctive character traits and attributes, even if the character's physical appearance is not the same in every context and that Eleanor: (1) was more like a comic book character than a literary character because of Eleanor's physical and conceptual qualities and (2) displayed "widely identifiable" traits and was "especially distinctive." Id. at 1225.

Relying on Halicki and other precedents, the panel established a three-prong test for determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection. First, the character must generally have "physical as well as conceptual qualities." Air Pirates, 581 F.2d at 755. Second, the character must be "sufficiently delineated" so as to be recognizable as the same character whenever it appears by displaying consistent identifiable character traits and attributes, but it need not have a consistent appearance. Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1175 (9th Cir. 2003); and Halicki, 547 F.3d at 1224. Third, the character must be "especially distinctive" and "contain some unique elements of expression" (id.), but cannot be a stock character (Rice, 330 F.3d at 1175).

Applying this three-prong test to the present matter, the panel held that: (1) the Batmobile is not a mere literary character because by appearing graphically in comic books and three-dimensionally on television and in motion pictures, the Batmobile has both physical and conceptual qualities; (2) the Batmobile is "sufficiently delineated" to be recognizable as the same character whenever it appears and has consistent character traits and attributes, such as its bat-like appearance with sleek and powerful crime-fighting characteristics and up-to-date weapons and technology; and (3) the Batmobile is "especially distinctive" and is not a mere stock character because it contains unique elements of expression due to its status as Batman's "loyal bat-themed sidekick," unique character traits and physical elements, and unique and highly recognizable name. Thus, the panel concluded that the Batmobile was entitled to copyright protection.

As to Towle's second and third arguments that he did not infringe on DC's underlying work because the Batmobile as it appeared in the 1966 television series and the 1989 motion picture look substantially different from any particular depiction of the Batmobile in the comic books and the Batmobile as it appeared in the 1966 television series and the 1989 motion picture were produced by third parties pursuant to sub-licensing agreements with ABC and BPI, respectively, the panel dismissed both arguments on grounds that: (1) as a copyrightable character, the Batmobile need not have a consistent appearance in every context, so long as it has distinctive character traits and attributes; (2) since Towle produced an entire three-dimensional expression of the entire Batmobile character as it appeared in the 1966 television series and the 1989 motion picture, Towle necessarily copied some aspects of DC's underlying works; (3) DC retained its rights to the underlying Batmobile character; and (4) DC's licensing agreements with ABC and BPI cannot deprive DC of its rights to the underlying Batmobile character.

Having established that: (1) the Batmobile character is entitled to copyright protection and (2) DC owns a copyright to the Batmobile character as it appeared in the 1966 television series and the 1989 motion picture, the panel concluded that Towle's replicas infringed upon DC's copyrights and that the two-prong "substantial similarity" test used to determine whether a plaintiff has established "copying of constituent elements of the work that are original" was unnecessary where Towle admitted to the copying of the entire work. Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989) (holding that a substantial similarity analysis was unnecessary because the copying of the substance of the entire work was admitted). The panel thereby affirmed the District Court because there was no genuine issue of material fact as to whether Towle infringed DC's copyright and DC was entitled to summary judgment as a matter of law.

The final issue on appeal was whether the District Court's ruling that Towle could not assert a laches defense as a matter of law was proper when Towle willfully infringed on DC's trademarks. The panel noted that while the doctrine of laches is a valid defense to trademark infringement claims, it is inapposite in cases of "willful infringement." Evergreen Safety Council v. RSA Network, Inc., 697 F.3d 1221, 1228 (9th Cir. 2012). Furthermore, "willful infringement" occurs when the defendant's actions are "willfully calculated to exploit the advantage of an established mark. Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1406 (9th Cir. 1993), superseded by statute on other grounds, Trademark Amendments Act of 1999, Pub. L. No. 106 - 43, 113 Stat. 218.

Applying Evergreen Safety Council and Lindy Pen Co. to the present matter, the panel found that the undisputed facts establish that Towle availed himself of DC's trademarks to exploit them to his benefit because Towle's advertisements recognized the value of the Batmobile's fame and his website intentionally advertised his products as replica Batmobiles to attract his customer base, which was comprised of Batman fans. The panel thereby held that no reasonable juror could find that Towle's use of DC's trademarks was for any reason other than to exploit them and the District Court was correct in its conclusion that Towle was barred from asserting a laches defense because Towle willfully infringed DC's trademarks.

To read the full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/09/23/13-55484.pdf

Panel: Michael J. Melloy, Senior Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation, Jay S. Bybee and Sandra S. Ikuta, Circuit Judges.

Argument Date: February 5, 2015

Date of Issued Opinion: September 23, 2015

Docket Number: 13-55484

Decided: Affirmed the District Court's summary judgment in a copyright and infringement action brought by DC Comics against a manufacturer of Batmobile replicas on grounds that: (1) the Batmobile was entitled to copyright protection because it embodies sufficiently distinctive elements of the Batman comic books, television series, and motion pictures; (2) DC Comics owned a copyright interest in the Batmobile as depicted in the 1966 television series and the 1989 motion picture because DC Comics did not waive its rights to the Batmobile when DC Comics licensed rights to produce derivative works; (3) the manufacturer of Batmobile replicas infringed on DC Comics' copyrights; and (4) the manufacturer of Batmobile replicas was not entitled to raise a laches defense because the doctrine of laches is inapposite in cases of willful infringement.

Case Alert Author: Ryan Arakawa

Counsel:
Larry Zerner (argued), law offices of Larry Zerner, Los Angeles, California; Edwin F. McPherson and Tracy B. Rane, McPherson Rane LLP, Los Angeles, California, for Defendant-Appellant.

James D. Weinberger (argued), Roger L. Zissu and Leo Kittay, Fross, Zelnick Lehrman & Zissu, P.C., New York, New York; J Andrew Coombs, J Andrew Coombs, A Professional Corporation, Glendale, California, for Plaintiff-Appellee.

Author of Opinion: Judge Ikuta

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 11/29/2015 12:04 AM     9th Circuit     Comments (0)  

November 28, 2015
  Singh v. Lynch, Attorney General - Ninth Circuit
Headline: An Immigration Judge may rely on background documentary evidence as the sole basis to make an adverse credibility determination under the REAL ID Act.

Areas of Law: Immigration; Asylum Law - Convention Against Torture

Issue: Whether the Immigration Judge's adverse credibility determination was supported by substantial evidence when the IJ relied solely on background documentary evidence to determine that the petitioner's argument was implausible.

Brief Summary:
Pavittar Singh sought asylum under the Convention Against Torture (CAT). At an asylum hearing, Singh testified that in 1998, 2005 and 2006 while living in India, he was subjected to intimidation. The Immigration Judge (IJ) reviewed the evidence which consisted of reports submitted by the government and Singh as well as Singh's own testimony and determined that Singh's claims of attack in 2005 and 2006 were not plausible and denied Singh's request for asylum. The Board of Immigration Appeals (BIA) dismissed Singh's appeal in agreement with the IJ that the claims Singh made were not plausible because the reports showed there were no active militants in India after the 1990's. The Ninth Circuit held this was a case of first impression and that it could easily be solved by the language of the REAL ID Act, which explicitly allows the BIA and the IJ to base their credibility determinations on background evidence in the record.

Chief Judge Thomas concurred in part and dissented in part. Thomas found that the IJ and the BIA mischaracterized the background evidence and would have granted the petition for review.

Significance: Background evidence of record can be used as the sole basis for discrediting the claims of an asylum petitioner under the REAL ID Act.

Extended Summary:
Petitioner Pavittar Singh sought asylum under the Convention Against Torture (CAT) after being authorized to enter the United States as a nonimmigrant visitor in January 2007. After getting a job here in the U.S., the Department of Homeland Security sent Singh a notice to appear because he failed to get authorization for his employment from Immigration and Customs Enforcement.

At his asylum hearing, Singh testified before the Immigration Judge (IJ) that while living in India he was subjected to intimidation by terrorists in 1998 and reported his troubles to officials who refused to investigate the matter and instead accused him of harboring Sikh separatists. Additionally, Singh testified that he was harassed and beaten in 2005 while in police custody, then accosted and threated to death by terrorists again in 2006, which he again reported to police who arrested him and again beaten him while in police custody.

The Immigration Judge reviewed the reports and noted the "armed militants" were not active in the India during the years Singh claimed to be injured, and hadn't been since 1990's. Thus, the IJ determined that Singh's claims of attack in 2005 and 2006 were not plausible and denied Singh's request for asylum. The Board of Immigration Appeals (BIA) dismissed Singh's appeal agreeing with the IJ that the claims Singh made were not plausible since the reports stated that there were no active militants after the 1990's.

Singh appealed based on lack of substantial evidence claiming under the REAL ID Act, his specific testimony could not be discredited solely based on background documents. The Ninth Circuit stated that this was a case of first impression but could be easily resolved by the clear language of the Act itself.

The Ninth Circuit held that the IJ and the BIA could consider the totality of the circumstances, and base a credibility determination on the inherent plausibility of Singh's testimony and the consistency of that testimony with other evidence of record, namely the reports of the Department of State on country conditions. Thus, the IJ and the BIA permissibly relied on record evidence to determine the implausibility of Singh's account.

Dissent: Chief Judge Thomas concurred in part and dissented in part. Thomas felt that the IJ and the BIA mischaracterized the background evidence and should have granted the petition for review.

Judge Thomas agreed that the REAL ID Act does allow the IJ to discredit the petitioner's testimony solely based on background evidence, however believes the IJ is required to consider the totality of the circumstance and make individualized determinations that rest on "specific and cogent reasons" as required by 8 U.S.C. § 1158(b)(1)(B)(iii). In Thomas' opinion, even if the presence of armed militants ended in the 1990's, it does not foreclose the plausibility that militants could have harmed Signh in 2005 and 2006 as he claimed.

To read full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...15/09/21/08-74212.pdf

Panel: Sidney R. Thomas, Chief Judge, and Diarmuid F. O'Scannlain and M. Margaret McKeown, Circuit Judges.

Date of Issued Opinion: September 21, 2015

Docket Number: 08-74212

Decided: Affirmed the Immigration Judge's decision to deny the applicants asylum request.

Case Alert Author: Lawrence J. Hudack

Counsel: Monica Ganjoo, Ganjoo Law Offices, San Francisco, CA, filed the brief for petitioner.

Tony West, Assistant Attorney General, U.S. Department of Justice, Civil Division, Washington, DC, filed the brief for the respondent. With him on the brief were Stephen J. Flynn, Assistant Director, and Janette L. Allen, Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

Author of Majority Opinion: Judge O'Scannlain

Author of Dissenting Opinion: Partial Dissent by Chief Judge Thomas

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 11/28/2015 11:56 PM     9th Circuit     Comments (0)  

  Miles v. Wesley - Ninth Circuit
Headline: Ninth Circuit decides district court should abstain from interfering with Los Angeles County's administration and management of its judicial system.

Area of Law: Federal Abstention, Class Action

Issue Presented: Whether the district court properly dismissed a class action suit on federal abstention grounds where plaintiffs sought federal review of a County's administration and management of its own court system.

Brief Summary: After years of budget cuts, Los Angeles ("L.A.") County abandoned its "a court in every neighborhood" model because the high operating costs of maintaining its 58 courthouses became unsustainable. The L.A. County court system set up "hub" courts across the county that heard specific legal matters, instead of all courts hearing all cases. Brenda Miles, representing the plaintiff class, challenged the new "hub" court model claiming the consolidation of all unlawful detainer cases (tenant eviction) into seven "hub" courts disproportionately impacted poor, disabled, and minority residents. The federal district dismissed the case on abstention grounds, under O'Shea v. Littleton, holding federal intervention of the County judicial system would violate the longstanding public policy against federal court interference with state court proceedings.

Extended Summary: Los Angeles County instituted its "neighborhood court" model in the late 1990s to provide easy access to courts for all L.A. residents. As of 2000, L.A. County operated 58 different courthouses, making up the largest trial court in the nation. After multiple legislative budget cuts over a number of years, the L.A. County court system initiated significant changes; by 2015, the County had shut down 20 of its 58 courthouses and consolidated all unlawful detainer (tenant eviction) cases into 7 "hub" courts.

Plaintiffs filed this class action in federal court alleging the new L.A. County "hub" court model violated numerous constitutional and statutory rights because it disproportionately impacted poor, disabled, and minority L.A. residents. But the district court dismissed the case on federal abstention grounds under O'Shea v. Littleton, 414 U.S. 488 (1974).

O'Shea v. Littleton is the controlling authority for abstention matters. The Supreme Court in O'Shea determined federal courts should generally abstain from interfering with state court matters where principles of federalism, comity, and institutional competence are implicated. The O'Shea opinion proscribes any ongoing federal audit of state criminal court proceedings; the same policy was later extended to civil suits in Rizzo v. Goode, 423 U.S. 362 (1976). Federal courts should determine whether abstention is proper on a case-by-case basis and be very reluctant to grant relief in sensitive state activities such as administrating the judicial system. Younger v. Harris, 401 U.S. 37 (1971).

The Ninth Circuit panel reviewed plaintiff's requested relief in determining whether it should abstain the matter. Plaintiffs were requesting an injunction preventing the county from shutting down even a single courthouse or adopting the "hub" court model for tenant eviction cases. The panel unanimously held that if the federal court were to stop L.A. County from making its own administrative decisions regarding its court system, it would be engaging in the exact sort of "heavy federal intervention" that O'Shea and Younger sought to prevent.

The O'Shea decision illustrates the longstanding public policy against federal court interference with the administration of state judicial systems. The Ninth Circuit confirmed the O'Shea policy by affirming the District Court's decision to dismiss the case on federal abstention grounds.

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/09/08/13-55620.pdf

Panel: Ferdinand F. Fernandez, Barrington D. Parker, Jr., and Jacqueline H. Nguyen, Circuit Judges.

Date of Argument: March 4, 2015 - Pasadena, California

Date of Issued Opinion: September 8, 2015

Docket Number: No. 13-55620

Decided: Dismissal of the class action for federal abstention grounds under O'Shea v. Littleton is affirmed.

Case Alert Author: Brian D. Shapiro

Counsel: Richard A. Rothschild (argued), Sue L. Himmelrich, and Navneet Grewal, Western Center on Law & Poverty, Los Angeles, California; Maria Palomares, Alexander Prieto, Brian Bilford and David Pallack, Neighborhood Legal Services of Los Angeles County, Pacoima, California; Paula D. Pearlman and Michelle Uzeta, Disability Rights Legal Center, Los Angeles, California; Barbara Schultz, Paul J. Estuar, and Fernando Gaytan, Legal Aid Foundation of Los Angeles, Los Angeles, California, for Plaintiffs-Appellants.

Robert A. Naeve (argued) and Nathaniel P. Garrett, Jones Day, Irvine, California, for Defendants-Appellees the Honorable David S. Wesley and Sherri R. Carter.

Susan K. Smith, Deputy Attorney General, Office of the Attorney General, Los Angeles, California, for Defendants- Appellees State of California and Edmund G. Brown, Jr.

Author of Opinion: Judge Nguyen

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 11/28/2015 11:49 PM     9th Circuit     Comments (0)  

November 23, 2015
  The New York Times Company v. United States Department of Justice
Headline: Second Circuit Issues Mixed Ruling in FOIA Request for Information About Targeted Drone Strikes, Ordering Disclosure of Small Amount of New Material

Area of Law: National Security

Issue Presented: Whether information currently under seal in the United States District Court should be disclosed under the Freedom of Information request submitted by plaintiffs.

Brief Summary: In 2014, in response to a FOIA request by the New York Times, the ACLU, and other plaintiffs, the Second Circuit ordered disclosure of a 41-page legal opinion prepared by the Department of Justice's Office of Legal Counsel ("OLC") regarding the legality of targeted drone attacks. In that decision, the Second Circuit remanded the remainder of the case back to the district court for the Southern District of New York, for analysis of whether other related OLC documents that had been withheld should also be disclosed. The district court ruled, in a partially redacted opinion, that most of those documents should not be disclosed, except for one document (itself a redacted version of another document that the court ruled should be kept secret). On appeal, the Second Circuit affirmed all of the district court's conclusions. It ruled that the one redacted document should be disclosed, and that three redacted paragraphs in the district court's opinion could also be disclosed (as the district court itself had urged). All of the remaining documents, however, will remain undisclosed. To read the full opinion, please visit http://www.ca2.uscourts.gov/de...f7093b0b40a/1/hilite/

Extended Summary: There are various exemptions to the Freedom of Information Act (FOIA) that permit government agencies to withhold certain information. One such exemption allows an agency to withhold information pursuant to an Executive order to keep it secret in the interest of national defense or foreign policy. Another such exemption allows an agency to withhold information that describes intelligence sources in methods. Here, the Second Circuit agreed with the district court that most of the documents in question - which, again, related to the legality of drone strikes - fell into the various FOIA exemptions. Most of the opinion's discussion related to a document referred to as "Exhibit E," which reflected "the provision of legal advice in 2002 provided to the President's close legal advisor about the Executive Order 12333 [a 1981 document entitled "United States Intelligence Activities"]. Exhibit E dealt with some topics that were later publicly discussed by the government, but also included other information that has never been disclosed. The court concluded that "these differences suffice to preclude a ruling that waiver has occurred, and we therefore affirm the District Court's decision not to disclose Exhibit E."

The Second Circuit also agreed with the district court that three redacted paragraphs of the court's opinion could be disclosed. The district judge, Colleen McMahon, had herself urged disclosure of these paragraphs, but had maintained them under seal pending appellate review. Although the government had argued that those three paragraphs could be "understood to imply a fact that should not be disclosed," namely, "the nationality of a person who has been considered as a possible target of a drone attack," the Second Circuit was unconvinced. "The three paragraphs neither say nor imply anything about such a nationality," the court explained. The Second Circuit did agree that a handful of words that might be used to identify the nationality of potential targets of drone strikes should remain redacted.

Additionally, the court also declined to disclose the redacted portion of the oral arguments conducted in a closed hearing about these issues. As such, that redacted information would not be disclosed. The Second Circuit noted, however, that "[w]e have substantial reservations about the Government's decision to bring to a closed ex parte hearing personnel whose identity and affiliation it will not disclose to opposing counsel, who were excluded from the hearing." It cautioned that should the need for such a closed ex parte hearing arise again, "the Government should either not bring personnel whose identities may not be disclosed, or present, prior to the hearing, a substantial justification for including such personnel."

Panel:
Newman, Cabranes and Pooler

Argument Date:
6/23/15

Date of Issued Opinion: 11/23/15

Docket Numbers:
14-4432-cv, 14-4764-cv

Decided: Judgment AFFIRMED; redacted portions of District Court opinion to remain UNDISCLOSED, except for three paragraphs (as redacted pursuant to Part IV of this opinion) that the District Court wishes to disclose; and redacted portions of transcript of June 23, 2015, oral argument to remain UNDISCLOSED; case REMANDED.

Case Alert Author: Gavin Michael Strube

Counsel: David E. McCraw, The New York Times Company, New York, N.Y. (Jeremy A. Kutner, New York, N.Y., on the brief), for Plaintiffs-Appellants The New York Times Company,Charlie Savage, and Scott Shane; Jameel Jaffer, American Civil Liberties Union Foundation, New York, N.Y. (Hina Shamsi, Dror Ladin, American Civil Liberties Union Foundation, New York, N.Y., Eric Ruzicka, Colin Wicker, Michael Weinbeck, Dorsey & Whitney LLP, Minneapolis, Minn., on the brief), for Plaintiffs-Appellants American Civil Liberties Union and American Civil Liberties Union Foundation. Sarah S. Normand, Asst. U.S. Atty., New York, N.Y. (Preet Bharara, U.S. Atty., New York, NY, Benjamin C. Mizer, Acting Asst. U.S. Atty. General, Matthew M. Collette, Sharon Swingle, Thomas Pulham, Civil Division, U.S. Dep't of Justice, Washington, D.C., on the brief), for Defendants-Appellees. (Lawrence S. Lustberg, Joseph A. Pace, Gibbons P.C., Newark NJ, for amici curiae Senators Ron Wyden, Rand Paul, Jeff Merkley, and Martin Heinrich, in support of Plaintiffs-Appellants)

Author of Opinion: Jon O. Newman

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 11/23/2015 09:27 PM     2nd Circuit     Comments (0)  

November 11, 2015
  United States v. Puentes
Headline: Eleventh Circuit holds the district court lacks the authority pursuant to a Rule 35(b) motion to eliminate restitution imposed by the Mandatory Victims Restitution Act.

Area of Law: Sentencing and Restitution

Issue: Whether the district court erred in eliminating, pursuant to a Rule 35(b) motion, a mandatory restitution obligation.

Brief Summary: The Government challenges the district court's elimination, pursuant to a Rule 35(b) motion, of a mandatory restitution obligation imposed on Appellee, Angel Puentes ("Puentes") by the Mandatory Victims Restitution Act ("MVRA"). The Eleventh Circuit reversed in part and remanded.

Extended Summary: Puentes pled guilty to a charge of conspiracy to commit wire and bank fraud. Puentes was held jointly and severally liable with co-conspirators to pay $4,445,305.94 in restitution. While incarcerated, Puentes assisted federal law enforcement authorities with the investigation of another inmate in an unrelated case. The Government filed a Rule 35(b) motion to reduce his term of incarceration based on his assistance. The district court granted the motion and reduced Puentes' prison sentence from 97 months to 42 months. Additionally, the court, without application from the parties, eliminated Puentes' obligation to pay restitution.

Reversing in part, the Eleventh Circuit found: (1) the court had jurisdiction to hear the case; (2) the Government properly preserved the restitution claim by making several objections; (3) the invited error doctrine did not apply and (4) section 3664(o) of the MVRA does not permit a district court to modify an order of restitution pursuant to a Rule 35(b) motion.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201510532.pdf

Panel: Marcus, William Pryor, and Jill Pryor, Circuit Judges

Argument: October 1, 2015

Date of Issued Opinion: October 5, 2015

Docket Number: 14-13587

Decided: Reversed in part and remanded with instructions

Case Alert Author: Lizbell Lucero, Evelin Mac Clay, Evan Phoenix, and Daniel Villavisanis

Counsel: Madeleine R. Shirley, et al. for Appellant
Jan Christopher Smith, II, et al. for Appellee

Author of Opinion: Marcus, Circuit Judge

    Posted By: Gary Kravitz @ 11/11/2015 02:37 PM     11th Circuit     Comments (0)  

  United States v. Hernandez-11th Circuit
Headline: The Eleventh Circuit holds the imposition of both restitution and forfeiture does not implicate double jeopardy.

Area of Law: Restitution

Issue: Whether the imposition of both restitution and forfeiture judgments for a single offense implicates double jeopardy.

Extended Summary: Appellee Noel Hernandez ("Hernandez") pled guilty to theft of government funds, and the government moved for entry of a forfeiture judgment of $117,659.00. The district court denied the government's motion for forfeiture, but ordered Hernandez to pay restitution in the same amount. On appeal, the government contended that the forfeiture money judgment was required by law. In response, the Appellee argued that the imposition of both forfeiture and restitution violated double jeopardy. The Eleventh Circuit rejected Appellee's double jeopardy argument, stating that both restitution and forfeiture money judgment served different purposes. Additionally, the court noted the parties recovering the forfeiture and restitution were different entities. The Eleventh Circuit vacated and remanded to re-impose Hernandez's sentence to include both a forfeiture money judgment and a restitution order, each in the amount of $117,659.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201511202.pdf

Panel: Hull, Marcus and William Pryor, Circuit Judges

Date of Issued Opinion: October 19, 2015

Docket Number: 15-11202

Decided: Vacated and Remanded

Case Alert Author: Lizbell Lucero, Evelin Mac Clay, Evan Phoenix, and Daniel Villavisanis

Counsel for Appellant: Nicole M. Andrejko, et al.

Counsel for Appellee: Rosemary Cakmis, et al.

Author of Opinion: Per Curiam

    Posted By: Gary Kravitz @ 11/11/2015 02:30 PM     11th Circuit     Comments (0)  

  In re: Google Inc. Cookie Placement Consumer Privacy Litigation - Third Circuit
Headline: Tracking Cookies Placed on Browsers Even After Internet Users Employ Cookie Blockers Do Not Violate Federal Surveillance Law

Area of Law: Wiretap Act, Cyberspace

Issue Presented: Do tracking cookies placed on users' web browsers by internet advertising businesses violate federal law when the businesses placed the cookies on the browsers in contravention of the browsers' cookie blockers and the businesses' own public statements?

Brief Summary: Defendants placed tracking cookies on Plaintiffs' web browsers by exploiting loopholes in the cookie blockers on Plaintiffs' browsers while publicly assuring that the cookie blockers were blocking their tracking cookies. Plaintiffs brought three federal claims against Defendants pursuant to the Wiretap Act, Stored Communications Act, and Computer Fraud and Abuse Act. Plaintiffs' claim that Defendants violated the Wiretap Act failed because Defendants were parties to the communication. Plaintiffs' claim that Defendants violated the Stored Communications Act failed because the Act did not apply to private computing devices. Plaintiffs' claim that Defendants violated the Computer Fraud and Abuse Act also failed because Plaintiffs failed to allege that they suffered a loss. Plaintiffs also brought several claims under the California Constitution and California tort law.

Extended Summary: Plaintiffs brought a class action against Defendants, who run internet advertising businesses, alleging that Defendants placed tracking cookies on Plaintiffs' web browsers by exploiting loopholes in the cookie blockers on Plaintiffs' browsers. Defendants exploited loopholes in Plaintiffs' cookie blockers while publicly assuring that the cookie blockers were blocking the very third-party tracking cookies the Defendants placed on Plaintiffs' browsers.

When a user, such as one of the Plaintiffs, types a Universal Resource Locator ("URL") into a web browser, the server for that webpage instructs the browser to request advertisements from the third party internet advertiser responsible for serving the advertisements, such as one of the Defendants, for the particular requested webpage. Defendants deliver their advertisements directly to users from their own servers and serve different advertisements to different visitors. Internet advertisers are able to tailor advertisements to their audience by placing third party cookies on user's computing devices. These cookies keep track of and monitor an individual user's web activity over every website on which the internet advertisers inject ads. The internet advertiser then uses the internet histories of users to create detailed profiles on individuals.

Some web browsers, including Safari and Internet Explorer, designed built-in features called cookie blockers to prevent third party internet advertisers from installing cookies on a user's browser. The Defendants knew about the existence, functionality, and purpose of these cookie blockers. Defendant Google assured users that the cookie blockers were in place, making specific assurances about the existence, functionality, and purpose of the Safari browser cookie blocker. However, Defendant Google and other Defendants discovered loopholes in the cookie blockers and placed cookies on browsers with activated blockers, including those of Plaintiffs.

Plaintiffs brought three federal claims against Defendants pursuant to the Wiretap Act, Stored Communications Act, and Computer Fraud and Abuse Act. Beginning with the Federal Wiretap Act, Plaintiffs demonstrated that the contents of an electronic communication were intentionally intercepted by Defendants' servers. While URLs may function as location identifiers that route information and, as such, may be permissible under Federal surveillance law, URLs may also be part of or contain the substantive information conveyed to a recipient. Interception of content is impermissible under Federal surveillance law.

Congress contemplated the overlap of information that serves a routing function and content function. URLs can contain both content and routing information because they often produce the words of a search engine query or identify the website that a user views. Whether a URL involves content depends on how much information would be revealed by disclosure of the URL. However, consistent with cases holding that numbers dialed from a telephone after a call has already been set-up constitute content even where the original dialed numbers do not, post-domain name portions of the URL were designed to communicate to the visited website which webpage content to send to the user.

However, Defendants did not violate the Wiretap Act because section 2511(2)(d)'s exception applied. Section 2511(2)(d) provides that no cause of action will lie against a private person where such person is a party to the communication unless such communication is intercepted to commit a criminal or tortious act. Plaintiffs' browsers directly communicated with Defendants about the webpages they sought to visit. The Defendants placed tracking cookies on web browsers in the process of injecting their advertisements, which were served directly from Defendants as third party internet advertisers. Defendants' cookies would not be able to associate a browser's web activity with a unique person as Plaintiffs alleged unless Defendants directly received advertisement requests for webpages that Plaintiffs visited. Thus, Defendants were parties to the communication because they acquired Plaintiffs' internet history information when Plaintiffs' browsers sent that information directly to Defendants in the course of requesting webpage advertising content. Plaintiffs failed to point to any criminal or tortious acts that were secondary to Defendants' acquisition of the communication and involved tortious or criminal use of the interception's fruits.

Next, Plaintiffs' claim under the Stored Communications Act failed. The Act requires Defendants to have intentionally accessed a facility through which an electronic communication service is provided without authorization. Alternatively, the Act requires Defendants to have intentionally exceeded authorization to access that facility thereby obtaining, altering, or preventing authorized access to an electronic communication while in electronic storage. However, Defendants accessed Plaintiffs' personal computing device, and an individual's personal computing device is not protected by this Act. Congress meant for the Act to protect information held by centralized communication providers; home computers were already protected by the Fourth Amendment. Thus, the Act did not apply to Plaintiffs' personal computing devices.

Plaintiffs' final federal claim that Defendants violated the Computer Fraud and Abuse Act also failed. The Act applies where persons suffered damage or loss because a third party intentionally accessed a computer without authorization or exceeded authorized access and obtained information from a protected computer. However, Plaintiffs failed to allege that they suffered a loss because they failed to show that they would have made economic use of the information collected by Defendants themselves or Defendants prevented them from capturing the full value of their internet usage. Furthermore, they did not show that they incurred costs, lost opportunities to sell their information, or lost the value of the data that was collected by others.

Plaintiffs stated several claims under the California Constitution and California tort law. Plaintiffs adequately plead their freestanding privacy claims against Google, but their claims against Google under the California Invasion of Privacy Act, California Unfair Competition Law, and California Consumers Legal Remedies Act failed.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/134300p.pdf

Panel (if known): Fuentes, Fisher, and Krause, Circuit Judges

Date of Argument: December 11, 2014

Date of Issued Opinion: November 10, 2015

Docket Number: No. 13-4300

Decided: Dismissal of the three federal law claims brought against all Defendants is affirmed, dismissal of the freestanding privacy claims against Google under the California Constitution and California tort law vacated, and dismissal of other California state law claims affirmed

Case Alert Author: Sarah Adams

Counsel: Jason O. Barnes, Esq., James P. Frickleton, Esq., Edward D. Robertson, Jr., Esq., Brain R. Strange, Esq., counsel for Appellants; Colleen Bal, Esq., Michael H. Rubin, Esq., Anthony J. Weibell, Esq., counsel for Appellee Google Inc.; Edward P. Boyle, Esq., David N. Cinotti, Esq., Travis S. Hunter, Esq., Rudolf Koch, Esq., counsel for Appellee Vibrant Media Inc.; Lisa M. Coyle, Esq., Douglas H. Meal, Esq., counsel for Appellees Media Innovation Group LLC and WPP PLC.

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 11/11/2015 01:09 PM     3rd Circuit     Comments (0)  

November 1, 2015
  ACLU v. Clapper
Headline: Second Circuit Allows the NSA's Bulk Telephone Metadata Collection to Continue During the 180-Day Transition Period Between the Now-Expired Patriot Act and the Newly-Passed USA Freedom Act

Areas of Law: National Security

Issue(s) Presented: Whether, given that the Second Circuit previously held that the Patriot Act did not authorize the NSA's bulk telephone metadata collection program, the court should enjoin this program from continuing during the 180-Day transition between the Patriot Act and the new USA Freedom Act.

Brief Summary: In May of 2015, in response to a lawsuit brought by the ACLU, the Second Circuit held that the National Security Agency's (NSA) bulk telephone metadata collection program was not authorized by the Patriot Act of 2001. Under this program, which Edward Snowden publicized in 2013, the NSA had been collecting metadata about telephone calls made by and to Americans, and then placing that metadata (which included information about the length of the call and phone numbers involved, but not about the content of the call) in a repository for later use. After the Second Circuit's 2015 ruling, Congress allowed the Patriot Act to expire and immediately replaced it with the USA Freedom Act of 2015, passed on June 2, 2015, which allows the government to collect call detail records only if certain requirements are met. The Freedom Act also stated that these rules would take effect 180 days after the date of enactment of the Act (i.e., on November 29. 2015). Upon passage of the Freedom Act, the federal government asked the Foreign Intelligence Surveillance Court to permit it to continue the original telephone metadata program during the 180-day transition period. The ACLU then moved for a preliminary injunction to halt continuation of the telephone metadata program, and also reiterated its underlying constitutional challenges to bulk telephone metadata collection. The Second Circuit, however, denied the injunction - concluding that Congress had intended to authorize the continuation of the program for the 180-day transition period - and declined to reach the ACLU's underlying constitutional challenges at this time, given Congress's conclusion "that this type of data collection shall not be authorized in the future."

To read the full opinion, please visit http://www.ca2.uscourts.gov/de...e21aee80a08/4/hilite/

Panel: Circuit Judges Sack and Lynch; District Judge Broderick (S.D.N.Y.), by designation

Argument Date: September 2, 2015

Date of Issued Opinion: October 29, 2015

Docket Number: 14-42-cv

Decided: October 29, 2015

Case Alert Author: Jake B. Sher

Counsel: Alexander Abdo, American Civil Liberties Union, for Plaintiff-Appellants; Henry C. Whitaker, United States Department of Justice, for Defendant-Appellee.

Author of Opinion: Judge Lynch

Circuit:
2nd Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 11/01/2015 08:29 PM     2nd Circuit     Comments (0)  

October 31, 2015
  Keeling v. Hars et al. - Second Circuit
Headline: Second Circuit holds derivative stage production parody of film Point Break is eligible for independent copyright protection.

Area of Law: Copyright

Issue(s) Presented: Whether a derivative work that satisfies the fair use exception under copyright law can be independently copyrighted.

Brief Summary: Jaime Keeling is the author of Point Break Live!, a stage production that parodies the film Point Break. The play relies almost exclusively on the dialogue from the film and juxtaposes that dialogue with sight gags and aspects such as having a member of the audience play the part of Keanu Reeves' character, reading from cue cards as a commentary on Reeves' supposedly wooden performance in the film.

In 2007, Keeling executed a contract with Eve Hars, the owner of a production company, New Rock Theater Productions, LLC. The contract allowed for a two month production run of Point Break Live!. At the conclusion of that run, Hars, who had become convinced that Keeling owned no rights to the play, attempted to renegotiate the contract and continued producing the play. Keeling registered a copyright in the play that became effective on January 4, 2008, and Hars continued producing the play for four years without paying anything to Keeling.

The underlying suit followed, and the United States District Court for the Southern District of New York denied Hars' motion for summary judgment. The district court judge instructed the jury that if they found the play constituted a "proper parody," they could find it to be a "fair use" derivative work that was independently copyrightable. The judge did not explicitly instruct the jury on all four of the fair‐use factors listed in 17 U.S.C. § 107, referencing them indirectly but stating that the list was "without much content or meaning." At trial, the jury found for Keeling in the amount of $250,000.

Hars appealed, arguing that a fair use of copyrighted material could not be the subject of an independent copyright in the new material. In essence, because the play borrowed so heavily from the film Point Break, even if it was a fair use it could not be copyrighted. Hars also argued that the district court judge should have instructed the jury on all four of the fair-use factors. The Second Circuit held that Keeling could claim independent copyright protection for her work, and that the parody exhibited the minimal degree of originality required for copyright protection to extend to it. It also held that the district court judge's instructions on originality and fair use were proper.

To read the full opinion, please visit:
">http://www.ca2.uscourt.../de.....f/2/hilite/


Panel: Judges Cabranes, Livingston and Droney

Argument Date: 6/26/2015 (decided on submission)

Date of Issued Opinion: 10/30/2015

Docket Numbers: 13-694-cv

Decided: Affirmed

Case Alert Author: Gavin Michael Strube & Jacob Sher

Counsel: Steven Paradise, Vinson & Elkins LLP, New York, NY, for Plaintiff-Counter-Defendant-Appellee. Eve Hars, pro se, Los Angeles, CA, for Defendant-Appellant

Author of Opinion: Judge Cabranes

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 10/31/2015 09:59 AM     2nd Circuit     Comments (0)  

October 30, 2015
  Coastal Coal-West Virginia, LLC v. Dept. of Labor -- Fourth Circuit
Headline: Error by ALJ Disrupts Trend of Black Lung Benefits Affirmances

Areas of Law: Administrative Law, Employment Law

Issue Presented: Whether the Administrative Law Judge erred in awarding benefits to Richard L. Miller under the Black Lung Benefits Act.

Brief Summary: This case stems from an award of benefits to Richard L. Miller by an Administrative Law Judge (ALJ) and the Benefits Review Board. Miller is a former coal miner suffering from black lung disease. Coastal Coal, opposing the award, filed an appeal for review of the decision. On May 12, 2015, the Fourth Circuit dismissed the appeal as untimely. The current decision is in response to Coastal Coal's petition for a rehearing of the May 12, 2015 decision.

Before reviewing the ALJ's decision, the Fourth Circuit examined the issue of timeliness. The court determined that Coastal Coal filed a timely motion for reconsideration and the earlier panel erred when it ruled the petition untimely. The court cited to 20 CFR § 802.221(b), to support its reasoning, stating that the correct date for a filing is the date of postmark as opposed to the date of receipt.

Because the motion was timely, the Fourth Circuit turned to consider whether the ALJ erred in awarding benefits to Richard L. Miller. The court reviewed the decision de novo to determine whether the ALJ's decision was supported by substantial evidence. Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion."

To receive benefits under the Black Lung Benefits Act, , miners must prove four elements: (1) they have pneumoconiosis, (2) the pneumoconiosis came from employment in a coal mine, (3) they have a disabling respiratory or pulmonary condition, and (4) pneumoconiosis is a contributing cause to their respiratory disability. Additionally, an irrebuttable presumption of total disability due to pneumoconiosis attaches when a miner is suffering from lung disease that is diagnosed by a chest x-ray, biopsy or any other means reasonably expected to yield similar results. Although this presumption attaches, the miner still bears the burden of proving he or she has complicated pneumoconiosis.

Coastal Coal argued that the ALJ erred because the ALJ failed to consider conflicting interpretations of Miller's x-rays that had been provided by the doctors. The Fourth Circuit agreed with Coastal Coal. The court found the ALJ erred by not considering the doctors comments because the comments had a direct bearing on whether what was seen on the x-ray was chronic dust disease (pneumoconiosis) or some other disease. The court found substantial evidence did not support the award of benefits because the ALJ relied primarily on the x-rays without considering the comments. The Fourth Circuit granted Coastal Coal's petition for review, vacated the ALJ's award of benefits, and remanded the case for reconsideration of the x-ray evidence of complicated pneumoconiosis.

This decision, along with West Virginia CWP Fund v. Mullins, ends a year-long streak of the Fourth Circuit affirming benefit awards of the Benefits Review Board.

To read the full opinion, click here.

Panel: Judges Shedd, Duncan, and Hamilton

Argument Date: 9/29/2015

Date of Issued Opinion: 10/5/2015

Docket Number: No. 14-2012

Decided: Petition for rehearing and review granted, vacated and remanded by unpublished per curiam opinion

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: Jeffrey R. Soukup, JACKSON KELLY PLLC, Lexington, Kentucky, for Petitioner. Otis R. Mann, Jr., Charleston, West Virginia; Sean Gregory Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Helen Hart Cox, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Washington, D.C., for Respondents.

Author of Opinion: Per Curiam

Case Alert Supervisor: Professor Reneé Hutchins

Edited: 10/30/2015 at 01:59 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/30/2015 01:47 PM     4th Circuit     Comments (0)  

October 29, 2015
  United States v. Jones -- Fourth Circuit
Headline: Fourth Time's the Charm - The Fourth Circuit's Repeated Reminder to Consider 28 U.S.C. § 2255 and Federal Rule of Civil Procedure 60(b) Motions Separately

Areas of Law: Civil Procedure, Criminal Procedure

Issue Presented: Whether a post-judgment motion should be classified as a 28 U.S.C. § 2255 motion, a true Federal Rule of Civil Procedure 60(b) motion, or a hybrid of both.

Brief Summary: Dominique Alexander Jones filed a request for post-conviction relief in the United States District Court for the Eastern District of North Carolina. The district court dismissed Jones' 28 U.S.C. § 2255 motion as successive but unauthorized, and dismissed Jones' separately filed Federal Rule of Civil Procedure 60(b) motion on the same basis. The Fourth Circuit briefly reviewed the filing process for each motion. The Fourth Circuit then dismissed in part and affirmed in part, finding the district court correctly classified Jones' claim as a § 2255 motion.

Extended Summary: A 28 U.S.C. § 2255 motion is a pleading filed by a federal prisoner seeking to be released upon the ground that his or her sentence was either imposed in violation of the Constitution or some other law, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack. Once an initial § 2255 motion has been filed, the law requires a federal prisoner to seek preauthorization from a federal circuit court before filing additional collateral attacks on his conviction or sentence. In order to be granted such authorization, a movant must prove either: (1) newly discovered evidence that would prevent a reasonable fact finder from concluding the movant is guilty, or (2) a new rule of constitutional law, made retroactive to cases on collateral review.

Federal Rule of Civil Procedure 60(b) establishes another form of post-judgment relief. Rule 60(b) motions afford a movant relief from a final judgment for six specific reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that could not have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) a void judgment; (5) a satisfied, released, discharged, reversed, or vacated judgment or a no-longer-equitable judgment; or (6) any other reason that justifies relief. A Rule 60(b) motion does not require preauthorization prior to filing.

When a movant presents a motion that has not been preauthorized, and that includes claims subject to both the requirements of a § 2255 successive habeas petition and a Rule 60(b) motion, it is considered a "mixed motion." Consistent with Fourth Circuit precedent, when a movant files a mixed motion, the district court must allow the movant the opportunity to elect between deleting the improper claims or having the entire motion treated as a successive application. In a series of cases, the United States Court of Appeals for the Fourth Circuit found the lower court had not allowed for such an election by the federal inmate, and consequently remanded the cases for such action to be permitted. See, e.g., U.S. v. Ethridge, _Fed.Appx._, 2015 WL 4910487 (4th Cir. August 18, 2015); U.S. v. Coleman, 2015 WL 5472569 (4th Cir. September 18, 2015); U.S. v. Adionser, 2015 WL 5947659 (4th Cir. October 14, 2015).

The Fourth Circuit will not issue a certificate of appealability without a substantial showing of the denial of a constitutional right. In the instant case, the Fourth Circuit explained that when a district court denies relief on procedural grounds, the federal prisoner must demonstrate that: (1) the dispositive procedural ruling is debatable and, (2) the motion states a debatable claim of the denial of a constitutional right. The Fourth Circuit denied Jones' certificate of appealability because Jones did not demonstrate that the procedural ruling in his case was debatable and therefore dismissed this portion of Jones' appeal.

However, the Fourth Circuit did note that it was in a position to decide whether Jones' post-judgment motion was a § 2255 motion, a Rule 60(b) motion, or a hybrid of the two. A district court must treat a Rule 60(b) motion as a successive collateral review application when failing to do so would create an excess or evasion of re-litigation. The Fourth Circuit distinguishes between a proper motion for reconsideration and a successive application by explaining " a motion directly attacking the prisoner's conviction or sentence will usually amount to a successive application, while a motion seeking a remedy for some defect in the collateral review process will generally be deemed a proper motion to reconsider." United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (quoting Calderon v. Thompson, 523 U.S. 538 (1998)). Unlike the above-mentioned prior cases, the Fourth Circuit in Jones' case determined that the district court was correct in deciding Jones' motion as a proper and successive § 2255 motion because Jones attacked his conviction without attempting to remedy some defect in the collateral review process.

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

To read the full text of the cited opinions, please click Ethridge; Coleman; and Dixon.

Panel: Judges Neimeyer, King, and Gregory

Argument Date: 09/10/2015

Date of Issued Opinion: 09/23/2015

Docket Number: No. 15-6478

Decided: Dismissed in part; affirmed in part by unpublished Opinion.

Case Alert Author: Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: Dominique Alexander Jones, Appellant Pro Se. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Author of Opinion: Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

Edited: 10/29/2015 at 01:48 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/29/2015 01:33 PM     4th Circuit     Comments (0)  

October 28, 2015
  Lora v. Shanahan - Second Circuit
Headline: Second Circuit Holds that Indefinite Detention Under §1226(c) of the Immigration and Nationality Act is Unconstitutional and Adopts a Bright Line Test Limiting Mandatory Detention to No More Than Six Months Prior to Permitting a Bail Application.

Area of Law: Immigration/Constitutional

Issue(s) Presented: Whether mandatory detention of non-citizens convicted of certain crimes under the Immigration and Nationality Act §1226(c) must be "immediate" upon their release to be mandatory. Whether §1226(c) applies if a non-citizen is not released from a custodial sentence. Whether indefinite detention under §1226(c) violates the Due Process Clause of the Fifth Amendment to the United States Constitution.

Brief Summary: Under section 1226(c) of the Immigration and Nationality Act, the Department of Homeland Security is required to detain non-citizens who are convicted of certain crimes pending removal and deportation proceedings. Non-citizens who contest their removal regularly spend months or years in detention, which includes dangerous criminals alongside those with significant family ties who pose no risk to the community. Alexander Lora was one of these later detainees. Mr. Lora was taken into custody by Immigration and Customs Enforcement agents after being convicted of a drug related offense and detained without bail for four months. Mr. Lora petitioned for a writ of habeas corpus and argued that he was eligible for bail because he had never served jail time and so had not "been released" as required under §1226(c). He also argued that indefinite detention without the opportunity for bail violated his right to due process.

The United States District Court for the Southern District of New York granted his petition on the statutory grounds and did not decide the constitutional issue. The government appealed, and the Second Circuit held that the district court should have deferred to the Board of Immigration Authority's interpretation of the statute, but also that indefinite detention violates the Due Process Clause of the Firth Amendment. Following the Ninth Circuit, the Second Circuit adopted a bright line test mandating that detentions be no longer than six months before a bail application is allowed. The court further held that, "the detainee must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community."

To read the full opinion please visit:
http://www.ca2.uscourts.gov/de...556e40deb01/1/hilite/

Significance: With this decision, the Second Circuit joins several circuits in holding that an implicit time limit must be read into §1226(c) to comply with the Fifth Amendment right to Due Process. The Second Circuit futrther adopts the standard articulated by the Ninth Circuit, that a six-month limit on detention before a bail hearing is presumptively reasonable but anything beyond six months is unreasonable and rejects a fact specific case-by-case approach followed by the Third and Sixth Circuits.

Extended Summary: Alexander Lora entered the United States from the Dominican Republic in 1990 as a lawful permanent resident. He attended school, built a family and created significant ties to the community. In 2009, while working at a grocery store, Lora and a co-worker were arrested and charged with numerous offenses related to cocaine possession. In July 2010, Lora plead guilty to criminal possession of cocaine with intent to sell, criminal possession of cocaine with an aggregate weight of one ounce or more, and criminal use of drug paraphernalia. Lora's conviction for these crimes rendered him removable under INA §237(a)(2)(B) and INA §237(a)(2)(A)(iii). Lora was sentenced to five years probation and did not violate and conditions of his probation.

On November 22, 2013, Lora was arrested by ICE agents and transferred to Hudson County Correctional Facility without bond, and Homeland Security maintained that under §1226(c) he was subject to mandatory detention and was not eligible for a bail hearing. During this time, Lora moved in New York state court to set aside his conviction. This motion was granted, and Lora then plead guilty to a lesser charge, a single count of third degree possession of a controlled substance and was resentenced to conditional discharge dating back to July 21, 2010. This new sentence gave Lora a strong argument for cancellation of removal, as the new crime he plead guilty to did not qualify as an aggravated felony. As a drug offense, however, it still rendered Lora subject to mandatory detention under 1226(c). In March, 2014, Lora requested permission to file an application for cancellation of removal and that he be granted a bail hearing. His request to file the application was granted, but Lora was denied a bail hearing.

At the same time, Lora filed a petition for a writ of habeas corpus. He argued, first, that §1226(c) requires that an alien be taken into custody "when the alien is released," and ICE did not take Lora into custody until several years after his conviction, and since he was never imprisoned, he was never "released" and thus could not be detained under the section. Second, Lora argued that continued and/or indefinite detention without a bail hearing is unconstitutional under the Due Process Clause of the Fifth Amendment, particularly in light of his defenses against removal. Finally, he argued that his continued detention was not in the public interest.

The United States District Court for the Southern District of New York granted Lora's petition, finding Lora was not detained immediately upon his release from criminal custody and that since he served no custodial sentence (he was never imprisoned as a result of his conviction), he was never released from custody. A bail hearing was granted, and it was determined that Lora was neither a flight risk nor a danger to the community. Lora was released after posting $5000 bail. The district court did not consider or opine on the constitutional argument. The government appealed, arguing that the district court erred in interpreting §1226(c) to require that an alien be detained immediately after release from custody, as well as requiring a term of imprisonment as a condition to be subject to §1226(c). The government notably did not take the position that it should be permitted to detain immigrants indefinitely, but rather argued that a "fact-dependent inquiry" should be conducted in each and every case as to the allowable length of detention.

The Second Circuit agreed that the statute was interpreted improperly. Finding that, at best, the wording of the statute was ambiguous, the court explained that deference should be given to the government agency tasked with enforcing the law, providing the agency decisions are not arbitrary or capricious. The Second Circuit pointed to other sections of the INA where Congress explicitly required individuals to be incarcerated post-conviction to show that Congress did not intend to require an alien serve a term of imprisonment before §1226(c) applies. The Second Circuit also held the language in the statute that states "when...released" is a "duty-triggering" provision, not a "time-limiting" provision. In other words, when an alien is released is when ICE acquires the duty to detain them. However, it does not mean that they must be detained immediately upon release.

The Second Circuit then moved on to the constitutional argument. The Second Circuit stated that it is well-settled law that the Fifth Amendment grants due process rights to aliens during removal proceedings, and indefinite detention without a bail hearing so violates these rights that it is agreed upon by all parties that such conduct is unconstitutional. The court reasoned that earlier constitutional attacks on the statute had failed simply because at the time the average length of detention was brief but noted that this is no longer the case, with detention lasting months or even years in some cases due to heavy backlog, with thousands of non-citizens detained awaiting removal proceedings. Accordingly, the Second Circuit held that §1226(c) must be read to include a requirement that the detention only last a "reasonable" amount of time before a bail hearing should be granted.

The remaining question before the Second Circuit was what approach to utilize in analyzing what constitutes a "reasonable" time. The Second Circuit rejected the government's push to adopt the fact-specific case-by-case analysis applied by Third and Sixth Circuits. The court reasoned that such a case-by-case analysis of what is "reasonable" would lead to confusion and inconsistent rulings among the various district courts in the circuit and questioned the feasibility of such an approach given the Second Circuit's immense immigration docket. Instead, the Second Circuit adopted the bright-line rule followed by the Ninth Circuit that a six-month detention is reasonable, but anything over that time period is not. The court further announced that, after such time, a bail hearing must be held for the detainee, and if the detainee is not a flight risk or a danger to the community, bail must be granted.

To read the full opinion please visit:
http://www.ca2.uscourts.gov/de...556e40deb01/1/hilite/

Panel: Judges Kearse, Parker and Wesley

Argument Date: 4/20/2015

Date of Issued Opinion: 10/28/2015

Docket Number: 14-2343-pr

Decided: Affirmed

Case Alert Author: Gavin Michael Strube

Counsel: Christopher Connolly (Sarah S. Normand, on the brief), Assistant United States Attorneys for Preet Bharara, United States Attorney for the Southern District of New York, for Respondents-Appellants Rebecca A. Hufstader, Legal Intern, Luis Angel Reyes Savalza, Legal Intern, (Alina Das and Nancy Morawetz, on the brief), Washington Square Legal Services, Inc., NYU Law School, New York, NY; Bridget Kessler, Brooklyn Defender Services, Brooklyn, NY, on the brief, for Petitioner‐Appellee. Ahilan Arulanantham, ACLU Immigrants' Rights Project, Los Angeles, CA; Judy Rabinovitz and Anand Balakrishnan, ACLU Immigrants' Rights Project, New York, NY; Alexis Karteron and Jordan Wells, New York Civil Liberties Union Foundation, New York, NY, on the brief, for Amici Curiae American Civil Liberties Union; New York Civil Liberties Union. Andrea Saenz, Immigration Justice Clinic, Benjamin N. Cardozo School of Law, New York, NY, for Amici Curiae the Bronx Defenders; Detention Watch Network; Families for Freedom; Immigrant Defense Project; Immigrant Legal Resource Center; Kathryn O. Greenberg Immigration Justice Clinic; Make the Road New York; National Immigrant Justice Center; National Immigration Project of the National Lawyers Guild; Neighborhood Defender Service of Harlem; New Sanctuary Coalition of New York City; Northern Manhattan Coalition for Immigrant Rights. Farrin R. Anello, Immigrants' Rights/International Human Rights Clinic, Seton Hall University School of Law, Newark, NJ, for Amici Curiae Professors of Immigration and Constitutional Law.

Author of Opinion: Judge Parker

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 10/28/2015 08:06 PM     2nd Circuit     Comments (0)  

  United States v. McCoy -- Fourth Circuit
Headline: If You Do the [Past] Crime, the Court Can Add on Time: Fourth Circuit Declines to Extend Howard and Affirms Upward Departure in Sentence Based on Stale Convictions

Areas of Law: Criminal Law, Criminal Procedure, Sentencing

Issues Presented: Whether the district court abuses its discretion by considering stale convictions from the defendant's youth when making an upward departure from the sentencing guidelines. Whether it is substantively unreasonable for the court to apply a higher criminal history category than the Government requested in sentencing. Whether a sentence is rendered substantively unreasonable by a post-sentence retroactive amendment to the Sentencing Guidelines.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's decision to apply an upward departure to Dilade McCoy's sentence based on his prior criminal history. While affirming McCoy's 188-month sentence, the Fourth Circuit also distinguished this case from its holding in the 2014 case United States v. Howard.

Extended Summary: When he was fifteen years old, Dilade McCoy was convicted of two robberies. At age seventeen, he pled guilty to assault with a deadly weapon with intent to cause serious injury. In all three of these cases, McCoy was tried as an adult. In 2005, five years after he was discharged from the assault sentence, he was convicted for possession of cocaine. Most recently, in 2014, a jury convicted McCoy of conspiracy to distribute and possession with intent to distribute more than 500 grams but less than 5 kilograms of cocaine. This was McCoy's fifth criminal conviction since 1986.

McCoy's probation officer considered only the 2005 conviction when making his Presentencing Investigation Report ("PSR") for McCoy's 2014 conviction. The PSR set McCoy's base offense level at 32 and his criminal history category at II. The Sentencing Guidelines prescribed a sentencing range of 135 - 168 months.

The Government requested that the District Court allow an upward departure under section 4A1.3 of the Guidelines because of McCoy's serious criminal history. Section 4AI.3 allows for an upward departure when reliable information indicates that the defendant's criminal history category substantially underrepresents the defendant's criminal history or likelihood to commit another crime. The Government asked for the criminal history category to be raised to level IV and for a 192-month sentence. The United States District Court for the Eastern District of Virginia noted that McCoy's criminal history was "quite serious" and considered all three of McCoy's stale convictions to find a criminal history category of V. The court sentenced McCoy to 188 months in prison.

Dilade McCoy appealed his sentence and asked the Fourth Circuit to apply its reasoning from United States v. Howard, 773 F.3d 519 (4th Cir. 2014), to find that the upward departure was unreasonable. McCoy argued that the District Court (1) improperly considered his stale juvenile convictions from twenty-five years ago, and (2) unreasonably applied a higher criminal history category than the one the Government requested.

In Howard, the Fourth Circuit found substantively unreasonable an upward-departure life sentence imposed on a man convicted of drug-related crimes. In its reasoning, the Howard court faulted the sentencing court for treating the defendant, then age forty-one, as a de facto career criminal because of non-violent crimes he committed when he was under eighteen. The Howard court also found it significant that the Government had requested a 360-month sentence, yet the court sentenced Howard to life.

The Fourth Circuit panel distinguished McCoy's case from the one in Howard. McCoy's stale convictions were for serious, violent offenses, unlike the non-violent ones involved in Howard. Moreover, McCoy reoffended five years after his second jail sentence, showing a greater likelihood of recidivism. Most notably, the Fourth Circuit found the upward departure here, only twenty months difference, was much more modest that the one in Howard, which increased a 121-month sentence to life. The Fourth Circuit also found it insignificant that the District Court applied a higher criminal history category than the one the Government requested because the District Court still sentenced McCoy to less time than the 192-month sentence the Government suggested.

Lastly, McCoy claimed that his sentence was substantively unreasonable because Amendment 782 to the Guidelines went into effect after he was sentenced. Amendment 782 is a retroactive amendment that lowers the base offense levels for certain applicable drug-related crimes. The Fourth Circuit panel clarified that post-sentencing amendments do not make a pre-amendment sentence unreasonable and advised McCoy that he can request application of Amendment 782 by making a motion under 18 U.S.C. § 3582(c)(2) in District Court.

To read the full opinion, click here.


Panel: Judges Motz, King, and Gregory

Argument Date: September 17, 2015

Date of Issued Opinion: October 15, 2015

Docket Number:
No. 14-4745

Decided: Affirmed by published opinion

Case Alert Author: Natalie Bilbrough, Univ. of Maryland Carey School of Law

Counsel: Gregory Bruce English, ENGLISH LAW FIRM, PLLC, Alexandria, Virginia, for Appellant. Angela Mastandrea-Miller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Case Alert Circuit Supervisor: Renée Hutchins

    Posted By: Renee Hutchins @ 10/28/2015 04:12 PM     4th Circuit     Comments (0)  

  Pronin v. Johnson, et al. -- Fourth Circuit
Headline: ". . . And Access for All" - Fourth Circuit Vacates District Court's Grant of Summary Judgment on Russian National's Denial of Access to Courts Claim

Areas of Law: Prisoners' Civil Rights

Issue Presented: Whether the district court erred in granting summary judgment in favor of defendants on appellant-inmate's claims under 42 U.S.C. § 1983 of denial of access to courts, inadequate medical treatment, and an equal protection violation based on a corrections officer's alleged discriminatory conduct.

Brief Summary: In a per curiam opinion, the United States Court of Appeals for the Fourth Circuit vacated and remanded the district court's grant of summary judgment in favor of the defendants on the inmate-appellant's denial of access to courts claim under 42 U.S.C. § 1983. The court affirmed the grant of summary judgment as to the rest of appellant's claims, including his assertions of inadequate medical treatment and violation of his equal protection rights.

Extended Summary: Dmitry Pronin arrived in the United States in 2008 and resided in Catonsville, Maryland. On March 5, 2011, Pronin robbed a bank in Delaware, and was arrested about a week later in Baltimore, Maryland. He was subsequently convicted in federal court. A short time before Pronin robbed the bank, his mother, Yulia Pogrebenko, arrived in the United States from Russia. In June 2011, a fisherman found Pronin's mother's torso floating in the Chesapeake Bay, and in July 2011, a man found Pogrebenko's skull on Tolchester Beach in Kent County, Maryland. Pronin pleaded guilty to his mother's murder in state court on June 11, 2015, and was sentenced to twenty-five years in state prison. Pronin's murder sentence will be served after he completes his federal sentence for the armed robbery.

In connection with his federal incarceration Pronin filed a § 1983 civil action in the United States District Court for the District of South Carolina. He alleged various constitutional violations against prison employees, including certain guards, officials, and a doctor. The district court granted summary judgment in favor of the defendants on all of Pronin's claims. On appeal, Pronin argued that the trial court erred in granting summary judgment. The Fourth Circuit addressed three of Pronin's claims: (1) the corrections officers violated the First and Fourteenth Amendments by destroying his legal papers, which denied him access to the court; (2) he received constitutionally inadequate medical care in violation of the Eighth Amendment; and (3) a corrections officer violated his equal protection rights under the Fourteenth Amendment when, after Pronin had an altercation with his cellmate, the officer removed Pronin, who is Jewish, from his cell but allowed his cellmate, who is Hispanic, to remain.

The court reviewed the trial court's grant of summary judgment de novo, examining the facts in the light most favorable to the defendants. First, the court examined Pronin's denial of access to courts claim. This claim arose from an alleged incident in which a corrections officer left Pronin's medical records from Russia in his cell with his cellmate and they were partially destroyed; another corrections officer then threw away the remaining records. The medical records reportedly documented that Pronin has developmental disabilities, was diagnosed with bipolar and borderline personality disorders, and suffers from epilepsy and a nervous tick.

The Fourth Circuit found that Pronin's allegations about the destruction of the documents were clearly in conflict with affidavits that the two corrections officers submitted. This conflict created a dispute of material fact. Therefore, the district court erred when it concluded the corrections officers' affidavits were uncontested.

Next, the court examined whether Pronin suffered any actual injury as a result of the alleged destruction of his medical records. Quoting the Ninth Circuit, the court noted that although Pronin remained able to file a § 2255 claim, denial of access to courts encompasses "the opportunity to prepare, serve, and file whatever pleadings or other documents are necessary or appropriate in order to commence or prosecute court proceedings affecting one's personal liberty, or to assert or sustain a defense therein." Upon reviewing Pronin's § 2255 filings, the court found that Pronin alleged ineffective assistance of counsel because his attorney failed to seek a psychiatric evaluation for him and did not attach any medical documentation in support of his arguments for receiving a shorter sentence. Pronin also contended that he should receive a downward departure based on his mental condition. Due to the alleged destruction of his medical records, Pronin was only able to attach two 2015 psychiatric evaluations in support of his § 2255 claims - both occurring after his convictions. The court found that Pronin suffered an actual injury because he is now unable to show he was diagnosed with mental illnesses prior to his criminal convictions. This failing affects his ability to succeed on his § 2255 motion. Therefore, the court found the district court erred when it concluded Pronin had not alleged an actual injury.

Turning to Pronin's other contentions, the court first affirmed the district court's grant of summary judgment as to Pronin's claims of inadequate medical treatment and violation of his equal protection rights. The court noted that to prevail on a claim of constitutionally inadequate medical treatment, a prisoner must show the doctor "knew of and disregarded a substantial risk of serious injury or knew of and ignored serious need for medical care." The court concluded that the district court's grant of summary judgment was proper where Pronin presented no evidence of any medical condition the doctor should have been aware of, and failed to establish the doctor was even on duty during the relevant time period.

The court also noted that to prevail on his equal protection claim, Pronin must show that he was "treated differently from others with whom he is similarly situated and the unequal treatment was the result of intentional or purposeful discrimination." Pronin alleged that a Hispanic corrections officer violated his equal protection rights when she removed Pronin, who is Jewish, from his cell after an altercation with his cellmate but allowed the cellmate, who is Hispanic, to remain in the cell. Because Pronin failed to present any evidence of the officer's discriminatory intent or evidence that he and his cellmate are similarly situated, the court affirmed the district court's grant of summary judgment. The court found no other basis for reversal.

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

Panel: Judges Motz, Floyd, and Harris

Argument Date: 8/20/2015

Date of Issued Opinion: 10/7/2015

Docket Number: Case No. 15-6534

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

Case Alert Author: Monica Basche, Univ. of Maryland Carey School of Law

Counsel: Dmitry Pronin, Appellant Pro Se. Barbara Murcier Bowens, Assistant United States Attorney, Columbia, South Carolina, for Appellees.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/28/2015 04:02 PM     4th Circuit     Comments (0)  

October 26, 2015
  The Hanover Insurance Company v. Urban Outfitters, Inc.; U.O.Com, LLC; Urban Outfitters Wholesales, Inc.; Anthropologie,
Headline: Third Circuit Holds "Prior Publication" Exclusion Applies When Advertisements are Sufficiently Similar

Area of Law: Liability Insurance; "Prior Publication" Exclusion

Issues Presented: Did the District Court err in determining that the "prior publication" exclusion applies if the information shows the advertisements are not "fresh wrongs" because they are sufficiently similar?

Brief Summary:

The Navajo Nation sued Urban Outfitters for trademark infringement. Urban Outfitters tendered the complaint to OneBeacon and Hanover Insurance companies. In 2010, OneBeacon issued a fronting policy to Hanover, making Hanover the reinsurer. Hanover issued a separate commercial general liability and umbrella policy which excluded coverage for "personal and advertising injury" liability arising from oral or written publication material which took place before the beginning of the policy. The Third Circuit first looked to the timeline and determined that the complaint does not list a date with complete certainty, but mentions March 16, 2009, multiple times. This date is sixteen months before Hanover took over the insurance responsibilities. The Third Circuit then looked to the exception for "fresh wrongs" finding that in order to qualify the act must be filed as a separate tort or substantially different. The Third Circuit found that the advertisements that were issued by Urban Outfitters were within a common theme and therefore not "fresh wrongs." Ultimately, the Court found that the "prior publication" exclusion applies because the advertisements at issue were originally placed before Hanover was responsible for Urban Outfitter's liability insurance.

Extended Summary:

The "prior publication" exclusion of liability insurance contracts prevents a company from obtaining ongoing insurance coverage for a continuing course of tortious conduct. The Third Circuit considered the scope of the "prior publication" exclusion. In 2012, the Navajo Nation sued Urban Outfitters and its affiliates for trademark infringement. Navajo Nation alleged that Urban Outfitters advertised, promoted, and sold its goods under the 'Navaho' and 'Navajo' names and marks on the internet and in stores. Urban Outfitters tendered the complaint to OneBeacon America Insurance Company and Hanover Insurance Company. OneBeacon provided commercial general liability and umbrella liability coverage to Urban Outfitters prior to 2010. In 2010, OneBeacon issued a fronting policy to Urban Outfitters providing identical coverage with Hanover as the responsible insurer. A fronting policy is a risk management technique in which an insurer underwrites a policy to cover a specific risk but then cedes the risk to a reinsurer. In this case, the fronting company is OneBeacon and the reinsurer is Hanover. Hanover issued separate commercial general liability and umbrella policies to Urban Outfitters. Hanover issued policies that excluded coverage for "personal and advertising injury" liability arising from oral or written publication material which took place before the beginning of the policy. Hanover sought a judicial declaration that is was not responsible for Urban Outfitters' defense or indemnification and the District Court granted the motion in 2013. The District Court held that Hanover had no duty to defend or indemnify since Hanover did not begin insurance coverage until sixteen months after the alleged infringement began. Urban Outfitters and OneBeacon appealed the District Court's judgment for Hanover.

Both sides acknowledge an absence of binding authority. In interpreting an insurance contract, the Third Circuit looked first to the terms of the policy which are a manifestation of the intent of the parties. Second, the Third Circuit looked to the the terms and compared those terms to the allegations in the claim. Hanover contends that it has no duty to defend since its policies specifically excluded coverage for personal and advertising injury liability arising from oral or written publication of material whose first publication took place before the policy period. Thus, the Third Circuit must determine whether Urban Outfitters' liability-triggering conduct preceded or postdated that policy period's inception. The complaint does not specifically state when the offensive conduct occurred. It uses phrases like, "as early as" and "at least since." Urban Outfitters urged the Third Circuit to use extrinsic evidence to determine whether Hanover owes a duty to defend. The Third Circuit declined because Pennsylvania law provides that the determination of a duty to defend depends on the language of the policy and allegations of complaint. Additionally, the advocacy of extrinsic evidence is misguided. To abandon a complaint because the plaintiff neglects to provide a date-certain timeline would undermine disputes by eroding the predictability of reliance that a single pleading ensures.

Based on the contents of the complaint, Navajo Nation's description of Urban Outfitter's conduct is remarkedly consistent. Thus, Urban Outfitters advertised goods in a manner in violation of its trademark with the fixed date of at least March 16, 2009. Hanover was not responsible for Urban Outfitters' liability insurance coverage until sixteen months later, unless the underlying complaint contains allegations of "fresh wrongs" that occurred during Hanover's policy periods. There is no binding authority in this Court as to what constitutes a "fresh wrong." The Ninth Circuit recently defined "fresh wrongs" as new matter which is not substantially similar to the material published before the coverage period. In the Ninth Circuit case, the insurer was excused of its duty to defend, even with differences in pre and post coverage advertisements. Additionally, the Court found that post coverage ads were not "fresh wrongs" because the plaintiff did not allege that the advertisements were separate torts and they arose out of similarity of the advertising idea of the plaintiff.

In Pennsylvania, an insurer's duty to defend is broader than its duty to indemnify, although there may be reasonable limits imposed. Variations occurring within a common, clearly identifiable advertising objective do not give rise to "fresh wrongs," unless there is a substantive difference between the advertisements. The "prior publication" exclusion applies to an insurer from its duty to defend if that insurer has assumed coverage responsibility after the liability-triggered conduct. In order to determine if the two or more sets of advertisements share a common objective, courts may look to whether the plaintiff charged the insured with separate torts. Other determinative factors include whether there is a lull between pre and post coverage advertising initiatives and whether there is a common theme relating to the violation. In this case, Urban Outfitters is accused of an apparently continuous string of trademark infringement and related violations. In the complaint, Navajo Nation listed the dates accompanied by a qualifier denoting continuity, such as "since" and "at least." Navajo Nation did not charge Urban Outfitters with committing separate torts before and during Hanover's coverage period. In fact, Navajo Nation alleged that Urban Outfitters started using the Navajo name with all relevant instrumentalities of infringement well before Hanover's coverage period commenced.

The Third Circuit determined that the latter ads were not "fresh wrongs" and therefore the "prior publication" exclusions apply. Hanover has no duty to defend Urban Outfitters in this action. The purpose of insurance is to disperse the risk but an insurer cannot insure against something that has already begun. The "prior publication" exclusion prevents a continuing tortfeasor from passing the risk for its misconduct on to an unwriting insurer. Urban Outfitters engaged in similar liability-triggering behavior both before and during Hanover's coverage period and therefore the exclusion applies. The Third Circuit affirmed the District Court's judgment granting Hanover's motion.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/143705p.pdf

Panel: Ambro, Scirica, and Roth, Circuit Judges

Argument Date: March 3, 2015

Date of Issued Opinion: October 23, 2015

Docket Number: No. 14-3705

Decided: Affirmed

Case Alert Author: Jessica Wood

Counsel:

Ilan Rosenberg, Esq., Jacob C. Cohn, Esq., Dorothy A. Hickok, Esq. Counsel for Appellants

Andrew J. Gallogly, Esq. Counsel for Appellee

Author of Opinion: Roth, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mary Levy

    Posted By: Susan DeJarnatt @ 10/26/2015 01:51 PM     3rd Circuit     Comments (0)  

  Meshal v. Higgenbotham - D.C. Circuit
Headline: Split D.C. Circuit panel holds Bivens action unavailable where underlying conduct occurred outside the United States.

Area of Law: National Security Law; Bivens; Fourth and Fifth Amendments

Issue(s) Presented: Whether a U.S. citizen may file a Bivens action against U.S. agents for alleged detention, interrogation, and torture occurring in three African countries.

Brief Summary: Appellant Amir Meshal, a U.S. citizen and resident, traveled to Somalia in 2006 and fled to Kenya after violence erupted. Kenyan authorities detained him in 2007, and U.S. officials subsequently began a four-month interrogation of Meshal in Somalia, Kenya, and Ethiopia during which agents allegedly tortured him and deprived him of access to counsel. Upon his release without charges, Meshal filed an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), seeking damages for violation of his Fourth and Fifth Amendment rights. The U.S. District Court for the District of Columbia granted the government's motion to dismiss, concluding that a Bivens action was not available for U.S. citizens alleging maltreatment in the name of "intelligence gathering, national security, or military affairs." Meshal appealed.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed. The D.C. Circuit first noted that, since the 1971 issuance of Bivens, the Supreme Court had declined to extend Bivens in several contexts, concluding either that Congress had provided an alternative remedy or that "special factors counseled hesitation." The D.C. Circuit observed that the national security context counseled just such hesitation and cited its own precedents and cases from the Second, Fourth, and Seventh Circuits that declined to recognize a Bivens action where there was a perceived danger of obstructing U.S. national security policy.

The D.C. Circuit concluded that Meshal's claim - involving a potential damages remedy for actions occurring in a terrorism investigation conducted overseas - involved a new application of Bivens and implicated the extraterritorial application of constitutional protections, both of which dictated restraint in the absence of clear congressional action. The court rejected arguments of amici that the absence of any alternative remedy required recognition of a Bivens claim. Because recognition of any remedy would raise sensitive separation of powers concerns and might jeopardize U.S. antiterrorism interests abroad, the court left the determination to Congress and refused to imply a right of action. The court was not swayed by Meshal's U.S. citizenship, reasoning that "special factors counseling hesitation" did not turn on the identity of the plaintiff. Finally, the court rejected arguments of amici that congressional actions in 1973 and 1988 had served to ratify the Bivens action, reasoning that Congress could merely have thought Bivens was a constitutionally required decision it was not free to legislate away. The court concluded that Congress was best situated to provide a remedy if warranted and that, if the court was misconstruing Bivens, a course correction could come from the Supreme Court.

Judge Kavanaugh concurred separately, underscoring that it would anomalous to apply Bivens extraterritorially when the courts had not applied statutory causes of action for constitutional torts extraterritorially. He urged that Congress, not judges, had to decide whether to enact a cause of action covering Meshal's circumstances.

Judge Pillard dissented. She noted that Meshal was a U.S. citizen suing ordinary Bivens defendants, FBI agents. She believed that, because national security concerns were overstated, there were no "special factors" counseling hesitation in this case. Finally, she concluded that congressional action subsequent to 1971 had recognized Bivens and signified acquiescence in Bivens actions for cases like Meshal's.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...2D02/$file/14-5194.pdf

Panel: Brown, Kavanaugh, and Pillard

Argument Date: May 1, 2015

Date of Issued Opinion: October 23, 2015

[B}Docket Number: 14-5194

Decided: Affirmed.

Case Alert Author: Elizabeth Earle Beske

Counsel: Jonathan Hafetz, Arthur B. Spitzer, and Hina Shamsi for appellant. Henry C. Whitaker, Ronald C. Machen Jr., Matthew M. Collette, and Mary H. Mason for appellees.

Patricia A. Heffernan, Ronald C. Machen, Jr., Elizabeth Trosman, Elizabeth H. Danello, and John P. Dominguez for Appellee.

Author of Opinion: Brown

Concurrence: Kavanaugh

Dissent: Pillard

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 10/26/2015 12:13 PM     DC Circuit     Comments (0)  

October 23, 2015
  Kaass Law v. Wells Fargo Bank, N.A. - Ninth Circuit
Kaass Law v. Wells Fargo Bank, N.A. - Ninth Circuit

Headline: Law Firms are not sanctionable under 28 U.S.C. § 1927.

Areas of Law: Civil Procedure, 28 U.S.C. § 1927 Sanctions

Issue Presented: Whether 28 U.S.C. § 1927 can apply to a law firm rather then an individual as the statute reads.

Brief Summary:
An attorney with Kaass Law filed a complaint on behalf of a client against 10 different defendants, including Wells Fargo Bank, claiming the banks reported certain adverse information to credit agencies who then reflected the adverse information in Plaintiff's credit report. After the district court dismissed the complaint against Wells Fargo, the bank filed a motion to recover $11,236.50 in attorneys' fees and costs from Kaass Law and the client (the named Plaintiff), pursuant to 28 U.S.C. § 1927. Wells Fargo contended that Kaass Law's "litigation conduct undoubtedly 'multipl[ied] the proceedings in any case unreasonably and vexatiously' thereby constituting bad faith." The district court then awarded sanctions pursuant to 28 U.S.C. § 1927. The Ninth Circuit panel reversed the award, holding that law firms cannot be sanctioned based on the plain language of the statute which only specifies "individuals."

Extended Summary:
Armen Kiramijyan, an attorney with Kaass Law, filed a complaint on behalf of Plaintiff Izabell Manukyan against 10 different defendants, including Wells Fargo Bank, claiming the banks reported certain adverse information to credit agencies who then reflected the adverse information in Plaintiff's credit report. The district court granted Wells Fargo's motion to dismiss.

After the judgment dismissing Wells Fargo from the action, Wells Fargo filed a motion to recover $11,233.50 in attorney's fees and costs from Kaass Law pursuant to 28 U.S.C. § 1927 contending that that Kaass Law's "litigation conduct undoubtedly 'multipl[ied] the proceedings in any case unreasonably and vexatiously' thereby constituting bad faith." Wells Fargo specifically argued that Kaass Law acted in bad faith by: 1) filing a complaint and amended complaint that failed to differentiate Wells Fargo from the other defendants, and failed to provide factual allegations identifying the inaccurate
information; 2) failing to communicate its intent to file a motion for leave to amend, and then filing a motion for leave to amend the day after Wells Fargo filed a motion to dismiss; 3) failing to oppose Wells Fargo's motion to dismiss; 4) and engaging in a pattern and practice of filing similar "canned" and "boilerplate" complaints, in the same manner as Kaass Law's "predecessor," attorney Arshak Bartoumian, had done.

While the district court declined to award fees against the Plaintiff (the client, Izabell Manukyan), it ruled that "Kaass Law acted in bad faith by knowingly raising frivolous arguments against Wells Fargo and other defendants," and granted the motion against Kaass Law. The district court found that "Wells Fargo provides sufficient evidence that Kaass Law acted in bad faith," including "its failure to plead specific allegations or
differentiate between defendants in the Complaint; its failure to oppose defendants' motions to dismiss; and its failure to meet and confer or communicate with opposing counsel." Additionally, the district court found that, in attempting to file a first amended complaint, Kaass Law had "failed to correct the glaring pleading and legal errors identified by defendants, thereby recklessly and knowingly multiplying the
proceedings in this action." In addition, they failed to correct the glaring legal errors identified by the defendants, thereby recklessly and knowingly multiplying the proceedings in this action. The district court awarded Wells Fargo a total of $8,480.00 in attorneys' fees.

On appeal, Kaass Law argued that, because it "is not an attorney, nor is it a person admitted to conduct cases in courts, the district court erred in imposing sanctions against it pursuant to Section 1927." The statutory language of 28 U.S.C. § 1927 authorizes
sanctions against "[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory." The panel noted that whether a law firm may be considered an "attorney or other person admitted to conduct cases" is an issue of first impression in the Ninth Circuit. Upon reviewing the opinions of sister circuits, the panel rejected the reasoning of the Second and Eleventh Circuits that have upheld sanctions against law firms under 28 U.S.C. § 1927. Persuaded by the reasoning of the Seventh and Sixth Circuits, and based on the "plain language of the statute," the panel vacated the district court's order imposing sanctions against Kaass Law.

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/08/27/13-56099.pdf

Panel: Andrew J. Kleinfeld, M. Margaret McKeown, and Milan D. Smith, Jr.

Date of Issued Opinion: August 27, 2015

Docket Number: No. 13-56099

Decided: Reversed and Remanded

Case Alert Author: Robert J. Dagmy

Counsel:
Appellant: Vahag Matevosian (argued), Armen Kiramijyan, Kaass Law, Glendale California.

Appellee Kerry W. Franich (argued), Severson & Werson, Irvine, California; Jan T. Chilton.

Author of Opinion: Judge Milan D. Smith, Jr.

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/23/2015 05:33 PM     9th Circuit     Comments (0)  

October 22, 2015
  Briggs v. Merck Sharp & Dohme, Corp. - Ninth Circuit
Headline: Ninth Circuit panel reversed district court judge's denial of plaintiffs' remand motion, holding that the actions of plaintiffs in filing separate suits in San Diego Superior Court when a similar, but not identical, set of cases was pending in a coordinated state proceeding in Los Angeles Superior Court did not trigger removal as a mass action under CAFA.

Areas of Law: Civil Procedure, Class Action Fairness Act, Removal

Issues Presented:

Whether the five separately filed cases filed in superior court in one county, when a similar, but not identical, set of cases was pending in a coordinated state proceeding in superior court in a neighboring county, constitutes a "mass action" under CAFA which defendant may remove to federal court. Whether the plaintiffs in these five suits "proposed" to try their claims jointly within the meaning of CAFA's removal provision 28 U.S.C. § 1332(d)(11)(B)(i).

Brief Summary:

Five different groups of plaintiffs filed five separate lawsuits against the same defendant claiming defendant developed a drug that caused them, or deceased individuals that they represented, to contract pancreatic cancer. Defendant sought to remove the five different tort cases to federal court based on the Class Action Fairness Act (CAFA). Pursuant to CAFA, federal courts have jurisdiction of "mass actions" which are defined as "monetary relief claims of 100 or more persons which are 'proposed to be tried jointly' on the ground that plaintiff's claims involve common questions of law or fact." CAFA requires the proposal for a joint trial be made by the plaintiff and not the result of a case consolidation or joinder as a result of a defendant motion.

Defendant had originally sought removal based on complete diversity. In response to the original removal proceedings, plaintiffs represented to the federal district court that the five cases should be remanded back to state court and that they may be joined with an already existing coordinated proceeding in state court lawsuit in a neighboring county where similar claims were being litigated. Defendants then removed the case based on CAFA, alleging the plaintiffs had 'proposed a joint trial' with the preexisting state court case. The trial court agreed but the panel reversed remanding the case back to state court because plaintiff's conduct did not amount to "proposing a joint trial," as required by CAFA. In doing so, the panel rejected defendants' tactic to remove case under CAFA as a mass action finding that the plaintiffs, as masters of their complaints, must be the ones to propose a joint trial, not the defendants.

Extended Summary:

Plaintiffs are individuals who alleged that they, or deceased individuals that they represented, contracted pancreatic cancer after using incretion-based therapies for diabetes that were developed by defendant Merck Sharp & Dohme Corp (Merck). Five distinct groups of plaintiffs filed five different tort suits in California state court against Merck all with similar claims. Each of the five tort actions had fewer than 100 plaintiffs. At the time plaintiffs filed these five cases, a coordinated proceeding covering similar claims was pending in a California state court in a different county. Merck removed four of the five cases based on conventional federal diversity jurisdiction, but the district court granted plaintiffs' motions to remand. Merck then removed all five cases based on CAFA, contending that plaintiffs' statements to the court during the earlier remand proceedings - that they may join the coordinated state proceeding - converted four of the five cases into a mass action, and that the filing of the fifth case in the same state court as the other four had the same consequence. Plaintiffs moved to remand the five cases. The district court denied the motions for remand and subsequent motions for reconsideration.

Congress passed the Class Action Fairness Act (CAFA) in 2005 which extends removal jurisdiction to mass civil actions in which the monetary relief claims of 100 or more persons are proposed to be tried jointly. CAFA explicitly excludes removal jurisdiction from mass actions where claims by different plaintiffs are joined upon motion of a defendant or where claims have been consolidated or coordinated solely for pretrial proceedings. Relevant here is whether the plaintiffs 'proposed a joint trial' when stating to the federal court that they may join the earlier coordinated state proceeding if remanded back to state court.

Plaintiffs challenged the removal claiming CAFA does not apply because none of the five plaintiffs ever "proposed" to "try jointly" the claims of one hundred or more persons. Merck contended CAFA removal was proper because the plaintiffs represented to the federal court that plaintiffs may join the coordinated state proceeding in the Los Angeles Superior Court. In reversing the lower courts decision, the Ninth Circuit court ultimately held that plaintiffs did not propose a joint trial and remanded each of the five cases back to state court.

The Ninth Circuit panel commenced its analysis by interpreting the meaning of a "proposal for joint trial" as stated in the language of CAFA. According to the panel, a "proposal" can either be expressed by the parties or implied by their conduct, but it must be the plaintiff who makes the proposal. The lower court found that plaintiffs did propose a joint trial for two reasons. First, in his opinion, the trial judge believed that four of the five plaintiffs represented to him that they intended their cases to be joined with the coordinated proceeding. And second, all five cases were filed in San Diego Superior Court which is a neighboring court to the Los Angeles Superior Court. The Ninth Circuit panel held these two acts by the five plaintiffs did not constitute a proposal for a joint trial. The plaintiffs merely represented to the federal district court what might happen if they were remanded back to state court; that their cases may be joined to the coordinated state proceeding. This representation of what may have happened was not sufficient to constitute a proposal by plaintiffs to join the coordinated proceeding in the Los Angeles Superior Court. The Ninth Circuit panel also ruled that filing their five cases in San Diego County while the defendant-initiated coordinated proceeding was pending in neighboring Los Angles County constituted an implicit proposal to join their cases with the coordinated proceeding. The mere likelihood alone that the five cases would be joined in the coordinated proceeding "cannot to trigger CAFA's mass action jurisdiction, for some entity - either one of the parties or the state court - would have to take some action to effectuate the joinder." The panel concluded: "[T]here is no indication that Congress' purpose in enacting AFA was to strip plaintiffs of their ordinary role as masters of their complaint and allow defendants to treat separately filed actions as one action regardless of plaintiffs' choice."

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/08/14/13-56415.pdf

Panel: William A. Fletcher, Richard A. Paez, and Marsha S. Berzon, Circuit Judges.

Date Argued: July 10, 2015

Date of Issued Opinion: August 6, 2015

Docket Number: No. 15-55873

Decided: Reversed and remanded back to state court.

Case Alert Author: Brian D. Shapiro

Counsel:
Louis M. Bograd (argued), Center for Constitutional Litigation, P.C., Washington, D.C.; John M. Restaino, Jr., Restaino Siler, LLD, Denver, Colorado; Ryan L. Thompson (argued), Watts Guerra LLP, San Antonio, Texas; John R. Lytle, Napoli Bern Ripka Shkolnik, LLP, Ladera Ranch, California; Hunter J. Shkolnik, Napoli Bern Ripka Shkolnik, LLP, New York, New York, for Plaintiffs-Appellants.
Maurita Elaine Horn, Douglas R. Marvin, and Kristin Ann Shapiro (argued), Williams & Connolly LLP, Washington, D.C., for Defendants-Appellees.
Author of Opinion: Judge W. Fletcher

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/22/2015 05:48 PM     9th Circuit     Comments (0)  

October 20, 2015
  Sixth Circuit stays EPA's new Clean Water Act regulations
State of Ohio v. U.S. Army Corps of Eng'rs -- Sixth Circuit

Headline: Sixth Circuit pulls the plug on EPA's new Clean Water Act regulations

Area of the Law: Clean Water Act jurisdiction; environmental protection

Issue Presented: Whether the Sixth Circuit should stay enforcement of the EPA's new Clean Water Rule and restore the status quo as it existed before the Rule went into effect.

Brief Summary: Various states sued to challenge the validity of the EPA's new Clean Water Rule, 80 Fed. Reg. 37,054. The states alleged that the rule's definitional changes negatively altered the existing federal-state balance on matters concerning the integrity of the nation's waters. The states also argued that the rule violated the law as defined by the Supreme Court and that the Rule's adoption violated the requirements of the Administration Procedures Act. The states sought to stay the execution of the Rule pending judicial review of their claims. Although the court did not confirm its jurisdictional authority, it ruled that it did have the authority to make orders that preserved the subject of the petition. The Court found that the states showed a substantial likelihood of success on the merits of their case. And because the Court recognized the burden that government bodies - both state and federal--and private parties would experience if the Rule went into effect, it granted the states' motion for a stay.

Extended Summary: Eighteen states sued the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency to challenge the validity of the Clean Water Rule that went into effect on August 28, 2015. The Clean Water Rule clarifies the definition of protected waters, within the United States, as used in the Clean Water Act, 33 U.S.C. §1251. The states' multi-circuit cases were transferred and consolidated before the Sixth Circuit. The states argued that the new definitions change the Corps' and the EPA's regulatory jurisdiction and alter the federal-state balance on restoring and maintaining the integrity of the nation's waters. The states also argued that the Rule violates the law as defined by the Supreme Court and that the Rule's adoption violates the requirements of the Administration Procedures Act. The states moved to stay enforcement of the Clean Water Rule pending judicial review of their claim and to restore the status quo as it existed before the Rule went into effect.

The Court considered four factors in reaching its decision to grant the states' stay motion: (1) the likelihood that the party seeking the stay would prevail on the merits of the appeal; (2) the likelihood that the moving party would be irreparably harmed absent a stay; (3) the prospect that others would be harmed if the stay was granted; and (4) the public interest in granting the stay. The Court noted that these factors were not prerequisites to be met, but interrelated considerations to be balanced as long as the states, through sound legal principles, could show that the circumstances of their case justified the Court's using its discretion.

The Court found that there was a substantial possibility that the states would succeed on the merits because the states had a plausible argument that the Rule's new definition of navigable waters conflicts with the Supreme Court's opinion in Rapanos v. United States, 547 U.S. 715 (2006). Moreover, the Corps and the EPA lacked proof to rebut the states' argument that the Rule violates the Administrative Procedures Act because it was not a product of reasoned decision-making and because the Corps and EPA failed to include the Rule's details when it was published for comment.

Although the Sixth Circuit found that there was no compelling showing that any of the states would suffer irreparable harm, the court also determined that the integrity of the nation's waters would not suffer if the Rule was not immediately enforced. In balancing the harm, the Court instead focused on the Rule's redrawing of jurisdictional lines and the potential burden that governmental bodies - state, federal--and private parties might experience from uncertainty over the Rule's requirements.

Based on these findings, the Court held that it had discretion to rule on the states' stay motion to preserve the status quo pending further proceedings. It also held that regardless of the states' challenge to subject matter jurisdiction - a matter currently pending before the Court - the Court had the authority to make orders that preserved the subject of the petition.

Thus, the Court ruled that enforcement of Clean Water Rule was stayed until further order of the Court.

Dissent: The dissent, authored by Judge Keith, argued that the Court needed to first determine subject-matter jurisdiction before granting the stay. Because this threshold determination was still being decided, Judge Keith argued that enjoining implementation of the rule could only occur after the Court determined that they had jurisdiction to review the Rule.

Panel: Circuit Judges Damon J. Keith, David W. McKeague, and Richard A. Griffin

Date of Issued Opinion: October 9, 2015

Docket Number: Nos. 15-3799/3822/3853/3887

Decided: Petitioners' Motion for stay GRANTED.

Author of Opinion: Circuit Judge David W. McKeague

Author of Dissenting Opinion: Circuit Judge Damon J. Keith

Case Alert Author: Karen Wentz

Case Alert Circuit Supervisor: Professor Mark Cooney

Link to Full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/15a0246p-06.pdf

    Posted By: Mark Cooney @ 10/20/2015 12:50 PM     6th Circuit     Comments (0)  

October 19, 2015
  New York State Rifle & Pistol Ass'n, Inc., et al. v. Cuomo, et. al.; Connecticut Citizens' Defense League v. Malloy
Headline: Second Circuit Upholds Bulk of Gun Control Legislation Enacted by New York and Connecticut Post-Sandy Hook

Area of Law: Constitutional Law

Issue Presented:Whether the New York and Connecticut gun control laws prohibiting possession of semiautomatic assault weapons and large-capacity magazines violate the Second Amendment and provide constitutionally sufficient notice of the conduct proscribed.

Brief Summary: Motivated by the horrific Sandy Hook Elementary School mass murder in Newtown, Connecticut, as well as by other mass shootings, New York and Connecticut amended their state assault-weapons bans in 2013. Both states' gun control legislation broadened the definition of prohibited "assault weapons" and banned large-capacity-magazines that could hold more than ten rounds of ammunition. New York's law also prohibited possession of a magazine loaded with more than seven rounds of ammunition (a "load limit"). Connecticut's law did not include a "load limit," but did include a list of 183 particular assault weapons that were banned. Plaintiffs - a combination of advocacy groups, businesses, and individual gun owners - filed suit in the Western District of New York and in the District of Connecticut against the governors of New York and Connecticut and other state officials, seeking declaratory and injunctive relief for alleged infringement of their Second Amendment rights. Plaintiffs also claimed that numerous provisions of each statute were unconstitutionally vague. The Second Circuit held that the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large-capacity magazines did not violate the Second Amendment, and that none of the challenged provisions were void for vagueness, although it did reject New York's "load limit" and Connecticut's ban of one particular weapon.

Extended Summary: In January 2013, shortly after the mass murders at Sandy Hook Elementary School in Newtown, Connecticut, New York Legislature enacted the Secure Ammunition and Firearms Enforcement Act (SAFE Act), which expanded the definition of prohibited "assault weapons" by defining, as a prohibited weapon, any semiautomatic firearm that contained at least one feature from an enumerated list of military features, such as a battle shroud. Under this definition, the weapon used by the Sandy Hook shooter would have been prohibited. The SAFE Act also made the possession, manufacture, transport, or disposal of an "assault weapon" a felony. Finally, the SAFE Act banned magazines with a capacity to hold more than ten rounds of ammunition and also prohibited possession of a magazine loaded with more than seven rounds of ammunition (a "load limit").

Similarly, in April 2013, Connecticut adopted, and in June 2013, amended "An Act Concerning Gun Violence Prevention and Children's Safety." Much like New York's SAFE Act, the Connecticut statute substituted the two-feature definition of prohibited "assault weapons" with a stricter one-feature test. It also made it a felony to transport, import, sell, or possess semiautomatic "assault weapons." Additionally, the Connecticut legislation banned 183 particular assault weapons listed by make and model, including "copies or duplicates" of most of the listed firearms. Magazines with a capacity to hold more than ten rounds of ammunition were also banned, but unlike in New York, there was no seven-round load limit rule in the Connecticut statute. Both the New York and Connecticut legislation contained grandfather clauses permitting pre-existing owners of assault weapons to continue to possess their firearms if properly registered with the state.

Plaintiffs - a combination of advocacy groups, businesses, and individual gun owners - filed suit in the Western District of New York and in the District of Connecticut against the governors of New York and Connecticut and other state officials, seeking declaratory and injunctive relief for alleged infringement of their Second Amendment rights. Plaintiffs also claimed that numerous provisions of each statute were unconstitutionally vague. Both the United States District Court for the Western District of New York and the United States District Court for the District of Connecticut largely rejected their claims. On summary judgment, each court held that each state's legislation burdened plaintiffs' Second Amendment rights, that intermediate scrutiny should apply, and concluded that the laws' major provisions did not violate the Second Amendment. In the New York action, however, the district court did strike down limited aspects of the act, holding that the load limit did not pass intermediate scrutiny and that three specific provisions were unconstitutionally vague.

The Second Circuit largely affirmed. "The core prohibitions by New York and Connecticut of assault weapons and large-capacity magazines do not violate the Second Amendment," the court wrote. The court explained that both district courts had correctly evaluated the legislation under the constitutional standard of "intermediate scrutiny" - specifically, whether the statutes are "substantially related to the achievement of an important governmental interest" - and that here, the statutes passed intermediate scrutiny because they were substantially related to the important governmental interests of public safety and crime reduction, and because the record indicated that defendants tailored the legislation at issue to address these particularly dangerous weapons.

The Second Circuit further held, however, that neither New York's seven-round load limit nor Connecticut's ban on the Remington 7615 survived intermediate scrutiny. The Court found that because the seven-round load limit would not decrease the availability nor access of those who intend to use ten-round magazines for mass shootings or other crimes, the provision was "entirely untethered" from the governmental interest of reducing the amount of assault weapons and large-capacity magazines in circulation. The Remington 7615 ban did not survive intermediate scrutiny because Connecticut failed to set forth its rationale for banning the pump-action weapon, the single non-semiautomatic weapon on the list.

Finally, the Second Circuit held that no challenged provision in either statute was unconstitutionally vague. Generally, the court found that similar statutory language existed in both federal and New York statutes since 1994 and did not cause confusion at any time in the past two decades.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...d84df8c4dfee/3/hilite/

Panel: Circuit Judges Cabranes, Lohier, and Droney

Argument: 12/09/2014

Date of Issued Opinion: 10/19/2015

Docket Number: 14-36-cv(L); 14-319-cv

Decided: Affirmed in Part and Reversed in Part

Case Alert Author: Maria Ouzlian

Counsel: David Thompson, Charles J. Cooper, Peter A. Patterson, Cooper & Kirk, PLLC, Washington DC, and Brian T. Stapleton, Matthew S. Lerner, Goldberg Segalla LLP, White Plains, NY, Stephen P. Halbrook, Fairfax, VA, for Plaintiffs‐Appellants. Barbara D. Underwood, Solicitor General of the State of New York (Anisha S. Dasgupta, Claude S. Platton, Office of the Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General for the State of New York, New York, NY, for Defendants‐Appellees‐Cross‐Appellants Andrew M. Cuomo, et al. Maura B. Murphy Osborne, Assistant Attorney General of the State of Connecticut (Perry Zinn Rowthorn, Michael K. Skold, Gregory T. D'Auria, Office of the Attorney General, on the brief), for George Jepsen, Attorney General of the State of Connecticut, Hartford, CT, for Defendants‐Appellees Dannel P. Malloy, et al.

Author of Opinion: Judge Cabranes

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/19/2015 07:27 PM     2nd Circuit     Comments (0)  

  United States v. Hunt -- Fourth Circuit
Headline: Hypothetical Isn't Helpful: Fourth Circuit Remands Hunt's Case to Ensure Sentencing Enhancements Were Supported By Facts

Areas of Law: Criminal Law

Issue Presented: Whether a defendant's prior convictions should be re-examined to determine if the trial court impermissibly considered hypothetical sentence enhancements.

Brief Summary: Bobby Ray Hunt was subjected to a sentence enhancement under the Armed Career Criminal Act (ACCA) based on the district court's assessment of his prior criminal conduct. In an unpublished per curiam opinion, the United States Court of Appeals for the Fourth Circuit found that Hunt's sentence should be reconsidered because of the court's decision in United States v. Newbold. Hunt had two prior convictions in 1987 that were used by the government to justify giving him a longer sentence for his 2012 conviction. The Fourth Circuit held Hunt's sentence should be reconsidered to determine whether these 1987 convictions were serious drug offenses under the ACCA.

Extended Summary: In 1987, Bobby Ray Hunt was convicted of possession with intent to distribute and delivery of controlled substances. Hunt was also convicted of burning a house, and has two 1988 convictions for possession of marijuana with intent to deliver. These prior convictions became relevant in 2012, when Hunt pled guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). In the 2012 case, the district court found Hunt's three previous convictions qualified him for increased sentencing penalties under the Armed Career Criminal Act (ACCA). As such, the district court sentenced Hunt to 180 months of incarceration.

The ACCA mandates that an individual who is convicted of violating § 922(g) and has three prior convictions for either "violent felonies" or "serious drug offenses" must be given the statutory minimum sentence of 180 months in prison. The test for whether a conviction qualifies as a violent felony or a serious drug offense turns on the maximum potential penalty that an individual could have received at sentencing. In the present case, Hunt challenged the sentencing court's decision to consider his 1987 convictions for possession with intent to deliver and delivery of controlled substances, arguing that neither qualified as a serious drug offense under the ACCA.

In 2012 the Fourth Circuit decided United States v. Simmons. Simmons held that a man's first-time conviction for non-aggravated possession of marijuana should not have been considered when sentencing him under the Controlled Substances Act. This was because the trial court considered hypothetical sentencing enhancements to determine the maximum penalty for the aforementioned offense. Simmons established that when considering whether a prior conviction qualifies an individual for sentencing enhancement in a subsequent incident, the court must consider the actual penalties sought by prosecutors and not hypothetical enhancements that could have been pursued but were not.

Hunt filed a challenge to his sentence based on Simmons that was denied by the district court. However, while his appeal of that denial was pending before the Fourth Circuit, the court decided United States v. Newbold. The Fourth Circuit in Newbold recognized that the principle of Simmons applied to prior offense schemes under the ACCA, and that in Newbold's case the original offense did not qualify the defendant for an enhanced sentence. The sentencing court in Newbold did not articulate sufficient aggravating factors to prove the conviction was punishable by more than the default three-year tem. Because of this, the Fourth Circuit vacated the sentence and returned Newbold's case to the district court.

Based on the reasoning from Newbold, the Fourth Circuit in this case vacated Hunt's sentence, holding that "in light of [the holding in Newbold] we conclude that the district court should reconsider its determinations that Hunt's 1981 convictions were not serious drug offenses under the ACCA and that Hunt's 1987 convictions were serious drug offenses." Hunt's case will now return to the district court to examine whether the original convictions were properly considered in his current sentence.

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

Panel: Judges Shedd, Agee and Davis

Argument Date: N/A

Date of Issued Opinion: 09/10/2015

Docket Number: Case No. 14-6703

Decided: Vacated and remanded to the district court

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: Thomas P. McNamara, Federal Public Defender, Halerie F. Mahan, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Shalika S. Kotiya, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/19/2015 11:07 AM     4th Circuit     Comments (0)  

October 17, 2015
  Yocupicio v. PAE Group, LLC; Arch Resources Group, LLC - Ninth Circuit
Headline: Where a plaintiff files an action containing class claims as well as non-class claims, and the class claims do not meet the CAFA amount-in-controversy requirement while the non-class claims, standing alone, do not meet diversity of citizenship jurisdiction requirements,
the amount involved in the non-class claims cannot be used to satisfy the CAFA jurisdictional amount, and the CAFA diversity provisions cannot be invoked to give the district court jurisdiction over the non-class claims.

Issue Presented: Can non-class claims joined with class action claims be used to satisfy the jurisdictional amount under the Class Action Fairness Act (CAFA), and the CAFA minimal diversity provisions be invoked to give the district court jurisdiction over the non-class claims?

Brief Summary:
Yocupicio filed suit in California superior court against PAE Group, LLC and Arch Resources Group, LLC (Arch) claiming violations of the California Labor Code. The suit contained ten causes of action, the first nine of which were brought under the California Labor Code as class actions on behalf of employees of Arch. The tenth was not brought as a class action but as a representative action under the California Labor Code Private Attorney Act (PAGA). The amount sought pursuant to the class claims was $1,654,874 and the amount sought pursuant to the PAGA claim was $3,247,950. The PAGA claim did not meet the diversity of citizenship jurisdiction requirements and the CAFA claims did not meet the amount in controversy. Arch removed the action to federal district court which denied Arch's motion to remand. Reversing the denial, the panel held that, even if one included attorneys fees to boost the amount of the class action claims to exceed $5 million, it was error for the district court to allow the PAGA representative claim to be aggregated with CAFA claim to meet the $5,000,000 CAFA requirement and to use the (minimal) diversity of the CAFA claim to meet the PAGA requirement for removal.

Significance: Where class action claims and non-class action claims are joined in one suit, the amount involved in non-class claims cannot be used to satisfy the CAFA jurisdictional amount, and the CAFA diversity provisions cannot be invoked to give the district court jurisdiction over the non-class claims.

Extended Summary:
Plaintiff, Porfiria Yocupicio (Yocupicio) filed suit in California superior court against PAE Group, LLC and Arch Resources Group, LLC (Arch) claiming violations of the California Labor Code. The suit contained nine (9) causes of action under the California Labor Code and one cause of action under Private Attorneys General Act of 2004 (PAGA). The aggregate damages of the nine class action amounted to $1,654,874. The PAGA claim totaled $3,247,950 but did not meet the complete diversity jurisdictional requirements. Arch removed the case to federal district court pursuant to the Class Action Fairness Act removal provisions which require an aggregate damage amount in excess of $5 million but requires only minimal diversity.

Yocupicio moved to remand the case on the grounds that the class action claims alone did not meet the $5 million amount in controversy requirement and the PAGA claims, alone, did not meet the complete diversity requirement. The district court denied the motion to remand determining that it had diversity jurisdiction over the action because it was a class action that came within the CAFA provisions. Plaintiff Yocupicio appealed.

Applying the plain meaning of the text of the Class Action Fairness, the panel determined that "Congress was focused on class actions rather than on all representative actions" and that "all class claims are representative in nature but not all representative claims are class claims." The panel noted that CAFA states that a "'class action'" is "any civil action filed under" class action rules "as a class action;" thus, CAFA's aggregation provision applies only to damages of individual members of a class action in determining the amount in controversy, thereby excluding claims that are not part of the class action.

The panel also rejected the argument that the district court could exercise supplemental jurisdiction over the claims, noting that "it would not have had jurisdiction over the class claims because taken together they did not exceed the $5,000,000 threshold; it would not have had jurisdiction over the PAGA claim because of a lack of complete diversity." The panel found no statutory or case law support for Arch's argument that the district court had removal jurisdiction over the class claims by using the amounts sought in the PAGA claim and jurisdiction over the PAGA claim because the court would have jurisdiction over the class claims.

The panel also held that the representative claim did not meet the requirements of diversity and thus the district court lacked removal jurisdiction over that claim as well.

The panel concluded that it was error for the district court to allow the PAGA representative claim to be aggregated with CAFA claim to meet the $5 million amount in controversy requirement or to use the minimal diversity of the CAFA claim to meet the PAGA requirement for removal.

The panel reversed the decision of the district court and remanded the case with instruction to remand to state court.

To read full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...5/07/30/15-55878.pdf)

Panel: Ferdinand F. Fernandez and Richard R. Clifton, Circuit Judges and Kimberly J. Mueller, District Judge

Argument Date: July 6, 2015

Date of Issued Opinion: July 30, 2015

Docket Number: 15-55878

Decided: Reversed the district court's denial of a motion to remand the action to state court.

Case Alert Author: Lawrence J. Hudack

Counsel:
Thomas Stephen Campbell and Justin F. Marquez (argued), Rastegar Law Group, APC, Torrance, California, for Plaintiff-Appellant.

Michael E. Chase (argued) and Bruce Michael Timm, Boutin Jones Inc., Sacramento, California, for Defendants-Appellees.

Author of Majority Opinion: Ferdinand F. Fernandez, Circuit Judge

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/17/2015 07:31 PM     9th Circuit     Comments (0)  

  United States v. Leung - Ninth Circuit
Headline: In a proceeding to set aside a verdict, Fed. R. Evid. 606(b) bars juror testimony that other jurors engaged in premature deliberations or made up their minds about the case before deliberations began when such testimony is offered to demonstrate that the jury engaged in flawed processing of the evidence.

Areas of Law: Criminal Procedure; FRE 606(b).

Issues Presented: Whether, in a proceeding to set aside a verdict, Fed. R. Evid. 606(b) permits juror testimony that other jurors engaged in premature deliberations or made up their minds about the case before deliberations began when: (1) the testimony is offered to demonstrate that the jury engaged in flawed processing of the evidence; (2) the juror who overheard the conversations failed to bring the issue to the trial judge during the trial; (3) the trial court had no notice of the conversations prior to verdict being rendered; and (4) nothing in the juror's affidavit contained any evidence of juror deceit or bias.

Brief Summary: Defendant-Appellant in a criminal proceeding challenged the district court's denial of its motion for a new trial on grounds that Fed. R. Evid. 606(b) did not bar admission of the affidavit of a single juror, which alleged that several jurors violated the court's instructions not to discuss the case before final deliberations by regularly talking about the evidence during breaks in the trial. The panel, relying on Tanner v. United States, 483 U.S. 107 (1987) and Warger v. Shauers, 135 S.Ct. 521 (2014), noted that several key principles emerged from the Supreme Court's interpretation of Fed. R. Evid. 606(b); specifically, Fed. R. Evid. 606(b): (1) applies in any proceeding that involves an inquiry into "the validity of the verdict;" (2) bars juror testimony about the jury's "internal processes," regardless whether the claimed irregularity took place inside or outside of the jury room; and (3) imposes a nearly categorical bar on juror testimony about statements or events "during the jury's deliberations." The panel then found that Leung's affidavit was analogous to the testimony presented in Tanner insofar that it attempted to parse how jurors considered evidence, which was exactly what Fed. R. Evid. 606(b) sought to prevent. As a policy matter, the panel also declined to open the door to a motion for a new trial at every instance of minor juror misconduct. The panel ultimately held that during a proceeding to set aside a verdict, juror testimony that other jurors engaged in premature deliberations or made up their minds about the case prior to beginning deliberations is inadmissible if offered to demonstrate that the jury engaged in flawed processing of the evidence because such testimony improperly implicates the internal affairs of the jury during an inquiry into the "validity of the verdict." Warger, 133 S.Ct. at 528.

Significance: Fed. R. Crim. P. 33(b)(2)'s fourteen-day period to file a motion for a new trial on grounds other than newly discovered evidence is "nonjurisdictional" and may be extended under Fed. R. Crim. P. 45(b)(2). In a proceeding to set aside a verdict, Fed. R. Evid. 606(b) bars admission of juror testimony that other jurors engaged in premature deliberations or made up their minds about the case before deliberations where such testimony is offered to demonstrate that the jury engaged in flawed processing of the evidence because such testimony improperly implicates the internal affairs of the jury during an inquiry into the propriety of the verdict.

Extended Summary:
Shiu Lung Leung (Leung), an executive at the Taiwanese company, AU Optronics Corporation, was charged in 2010 with violating the Sherman Antitrust Act, 15 U.S.C. § 1, for his role in fixing the prices of Thin Film Transistor, Liquid Crystal Display panels. Following a conviction after a second trial, Leung filed a motion for a new trial and a request for an evidentiary hearing.

Leung's motion was based solely on the affidavit of a single juror; the affidavit alleged that several jurors violated the court's instructions not to discuss the case before final deliberations by regularly talking about the evidence during breaks in the trial. The affidavit further alleged that prior to the beginning of jury deliberations, at least three other jurors "had already made up their minds that the defendant was guilty."

The district court found that the juror's affidavit was inadmissible under Fed. R. Evid. 606(b) and denied Leung's motion for a new trial without an evidentiary hearing. Leung was thereafter sentenced to twenty-four months' imprisonment.

On appeal, Leung argued that the juror's affidavit was admissible under Fed. R. Evid. 606(b) because juror testimony about the discussion of evidence before charging does not intrude on the internal affairs of the jury, but instead demonstrated juror dishonesty and bias during voir dire. The government opposed on grounds that: (1) Leung's motion for a new trial should have been rejected as untimely under Fed. R. Crim. P. 33(b)(2) and (2) even if Leung's motion for a new trial was timely, that the juror's affidavit was nevertheless inadmissible.

In regard to the government's argument that Leung's motion for a new trial was untimely under Fed. R. Crim. P. 33(b)(2), the panel found that the government's position did not mesh with the Supreme Court's clarification in Eberhard v. United States, 546 U.S. 12, 19 (2005), which stated that Fed. R. Crim. P. 33(b)(2) is "nonjurisdictional." As a result, Fed. R. Crim. P. 33(b)(2)'s fourteen-day deadline was subject to extension under Fed. R. Crim. P. 45(b) (2) and the district court was permitted to grant an extension to file a motion for a new trial.

The panel then turned to the issue of whether the juror's affidavit entitled Leung to a new trial or an evidentiary hearing under Fed. R. Evid. 606(b), which states:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury's attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.

In reaching its decision, the panel was guided by two Supreme Court cases: (1) Tanner v. United States, 483 U.S. 107 (1987) and (2) Warger v. Shauers, 135 S.Ct. 521 (2014).

In Tanner, the appellants were convicted of conspiring to defraud the United States in violation of 18 U.S.C. § 371, and of committing mail fraud in violation of 18 U.S.C. § 1341. 483 U.S. at 109. The Eleventh Circuit affirmed the convictions and appellants appealed to the Supreme Court on grounds that, inter alia, the district court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during the trial. Specifically, the Tanner court addressed the admissibility of a juror affidavit, which asserted that various jurors drank alcohol, smoked marijuana, ingested cocaine, sold controlled substances, and took periodic naps throughout a complex criminal trial. The Supreme Court ultimately held that the district court's refusal to admit, at a post-verdict hearing, juror testimony as to alleged juror drug and alcohol intoxication during trial was proper because the most reasonable reading of Fed. R. Evid. 606(b) did not include juror intoxication as an outside influence about which jurors may testify to impeach their verdict.

The Tanner court first looked to the "near-universal and firmly established common-law rule in the United States [that] flatly [prohibits] the admission of juror testimony to impeach a jury verdict." Id. at 117. The Tanner court then noted that, while an exception to Fed. R. Evid. 606(b) permits inquiry into whether "extraneous influences" tainted the verdict, juror testimony regarding the jury's "internal processes" is categorically barred. Id. at 120-21. Thus the critical inquiry was the "nature of the allegation" as opposed to where the alleged irregularity took place.

In Warger, the Supreme Court considered a juror's allegations that, during deliberations, another juror admitted to harboring bias against one of the parties. Warger was a personal injury matter where the appellant, Gregory Warger (Warger), was involved in a motorcycle accident on a highway with Randy Shauers (Shauers) that ultimately resulted in Warger sustaining serious injuries that resulted in the amputation of his left leg.

After a jury trial that resulted in a judgment in Shauers' favor, a juror contacted Warger's counsel over concerns that the jury foreperson admitted to harboring bias against Warger. Warger then sought a new trial pursuant to Fed. R. Evid. 606(b) on the grounds that the jury foreperson deliberately lied during voir dire regarding her ability to be impartial. The district court denied Warger's motion and the Eighth Circuit affirmed on grounds that Fed R. Evid. 606(b) applied and Warger's proffered evidence did not fall within the "extraneous prejudicial evidence" exception set forth in Fed. R. Evid. 606(b)(2)(A).

The Supreme Court affirmed the district court and the Eleventh Circuit and held that Fed. R. Evid. 606(b) applies in any proceeding in which a party seeks to set aside a jury verdict and does not permit an exception for testimony about juror bias or dishonestly during voir dire.

Relying on Tanner and Warger, the panel noted that several key principles emerged from the Supreme Court's interpretation of Fed. R. Evid. 606(b); specifically, Fed. R. Evid. 606(b): (1) applies in any proceeding that involves an inquiry into "the validity of the verdict;" (2) bars juror testimony about the jury's "internal processes," regardless of whether the claimed irregularity took place inside or outside of the jury room; and (3) imposes a nearly categorical bar on juror testimony about statements or events "during the jury's deliberations."

The panel also noted that, while the proposition that egregious juror misconduct will not necessarily result in relief from the verdict may seem antithetical to notions of due process, Fed. R. Evid. 606(b) exists to protect jurors from harassment and maintain the integrity and finality of jury verdicts. Thus, while persistent inquiry into the internal jury process may lead to the invalidation of some verdicts reached as the result of improper jury behavior, the trial by jury system may not survive efforts to perfect it.

The panel then analogized Leung's proffered affidavit to the juror's testimony in Tanner on the ground that, in both instances, the testimony attempted to shed light on the jury's internal affairs and sought a new trial on the ground that jurors prematurely made up their minds and discussed evidence before deliberations began. Since parsing how jurors considered evidence is exactly what Fed. R. Evid. 606(b) plainly sought to prevent, the panel declined to intrude upon the jury's mental processes concerning the verdict.

Leung then argued that the affidavit supports the inference that jurors deliberately lied during voir dire when the jurors represented that they could promise not to communicate about the case until it was over. However, the panel found Leung's argument meritless on grounds that: (1) it was nothing more than a revival of the sentiment in the now-abrogated case of Hard v. Burlington Northern Railroad, 812 F.2d 482 (9th Cir. 1987) (holding that "statements" made during deliberations "which tend to show deceit during voir dire are not barred by [Fed. R. Evid. 606(b)]) and (2) the affidavit contained no evidence of bias or deception. The panel found that nothing in the affidavit supported the inference that any of the jurors lied or concealed bias; rather, the affidavit, at most, suggested that some jurors might not have complied with each instruction.

Furthermore, the panel stated that, as a policy matter, Leung's insistence that every instance of juror misconduct should be admissible evidence of dishonesty or bias would be untenable because even trivial missteps would become fair game for a motion for a new trial. There would, therefore, be staggering consequences on the finality of jury verdicts because common, trivial mistakes of mere human fallibility would leave jury verdicts open to a motion for a new trial.

The panel held that, during a proceeding to set aside a verdict, juror testimony that other jurors engaged in premature deliberations or made up their minds about the case prior to beginning deliberations is inadmissible if offered to demonstrate that the jury engaged in flawed processing of the evidence because such testimony improperly implicates the internal affairs of the jury during an inquiry into the "validity of the verdict."

The panel concluded that a trial court has many remedies available within its broad discretion to correct jury misconduct when that misconduct is brought to the trial court's attention during trial and that, even when evidence of misconduct comes to light after the trial, a party may nevertheless attempt to produce non-juror testimony about alleged irregularities. However, once a jury pronounces its judgment, Fed. R. Evid. 606(b) protects jurors and, in light of Fed. R. Evid. 606(b)'s prohibition on juror testimony regarding the internal affairs of the jury, Leung was not entitled to a new trial or evidentiary hearing on the basis of the post-verdict juror affidavit. Leung's post-verdict affidavit was "too little, too late."

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/08/06/13-10242.pdf


Panel: Sidney R. Thomas, Chief Judge, M. Margaret McKeown, Circuit Judge, and Virginia M. Kendall, District Judge, sitting by designation.

Argument Date: February 11, 2015

Date of Issued Opinion: August 6, 2015

Docket Number: 13-10242

Decided: Affirmed the District Court's denial of Defendant-Appellant's motion for a new trial and evidentiary hearing on ground that Fed. R. Evid. 606(b) barred admission of a juror's affidavit, which alleged that: (1) several jurors violated the District Court's instructions not to discuss the case before final deliberations by regularly talking about the evidence during breaks in the trial and (2) before the jury began deliberations, at least three other jurors "had already made up their minds that the defendant was guilty."

Case Alert Author: Ryan Arakawa

Counsel:

Dennis P. Riordan (argued) and Donald M. Horgan, Riordan & Hogan, San Francisco, California, for Defendant-Appellant.

Adam D. Chandler (argued), James J. Fredericks, and Kristen C. Limarzi, Attorneys; Brent Snyder, Deputy Assistant Attorney General; William Baer, Assistant Attorney General; Peter K. Huston and Micah L. Wyatt, Attorneys, United States Department of Justice, Washington, D.C., for Plaintiff-Appellee.

Author of Opinion: Judge McKeown

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/17/2015 06:04 PM     9th Circuit     Comments (0)  

  Name Space, Inc. v. Internet Corp. for Assigned Names & Numbers - Ninth Circuit
Headline:
When bringing Sherman Antitrust claims Twombly's "plausibility" standard for pleading sufficiency calls for alleging enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.

Areas of Law: Civil Procedure, Antitrust, & Trade Law

Issues Presented:
Whether the plaintiff in an antitrust action sufficiently alleged sufficient facts to make a conspiracy plausible.

Brief Summary:
Plaintiff filed suit against ICANN, a government contracted non-profit to manage the assignment of TLD domain names, alleging a Sherman Act Section 1 claim for conspiracy in restraint of trade and a Sherman Act Section 2 for monopolization. ICANN did not grant the plaintiff the names it requested in 2000. Subsequently, plaintiffs could not afford to file again in 2012 because the application fee had more than tippled.

The panel held that the complaint did not state a claim for conspiracy in restraint of trade or commerce under § 1 of the Sherman Act because it did not sufficiently allege an anticompetitive agreement. Applying the plausibility standard in Bell Atlantic Corp. v. Twombly, under which a complaint must allege facts not merely consistent with, but plausibly suggesting, a conspiracy, the panel held that the complaint's factual allegations relating to ICANN's decision-making were fully consistent with the terms of its agreement with the Department of Commerce granting the plaintiff authority to manage the assignment of TLD domain names. The panel also held that the complaint did not state a claim for monopolization in violation of § 2 of the Sherman Act because ICANN is not a competitor in the market to act as a top level domain registry, the international market for domain names, or the market for blocking or defensive registration services.

Extended Summary:
In order to understand this case some foundational technology information is required. The Internet Corporation for Assigned Names and Numbers (ICANN) creates and assigns Top Level Domains (TLDs), which are the information that appears after the"." in a domain name, such as ".Gov" ".Com" ".edu" etc. The portion before the dot is called the second level domain. A Domain Name System (DNS) links each of these unique names with a corresponding IP address.

Originally the DNS was managed by the National Science Foundation and subsequently, in 1997, by the Department of Commerce (DOC). However, in 1998 the DOC contracted with ICANN a non profit corporation to run the system. Under their agreement ICANN has full control to decide how and what new TLDs will be registered. ICANN is controlled by a board of directors, including many directors who are industry leaders.

name.space is a company that specializes in "expressive" TLDs, such as .art, .food, .magic, .music, .now and .sucks. Their business model is to run these TLDs and sell hosting to their unique names. However none of their TLDs are currently available on the Root. The Root is where ICANN hosts new TLDs.

In 2000, ICANN accepted applications for new TLDs. The application instructions were seven pages, the fee was $50,000, and a single application could seek multiple TLDs. An application was 7 pages and the fee was $50,000.00. During that application period name.space applied for 118 TLDs. ICANN approved only seven new TLDs, none of which was awarded to name.space. The next application period was 2012. This time, the application guidebook was 349 pages, the fee was $185,000, and each application could seek only one TLD. Plaintiffs did not reapply in 2012 because the financial and procedural costs were too high. As in 2000, applications for new TLDs in 2012 came largely from industry insiders. The list of TLDs applied for by others in 2012 included 189 TLDs currently in use by name.space.

name.space filed suit in 2012 alleging violations of the sections 1 and 2 of the Sherman Act, the Lanham Act, the California Cartwright Act, and the California Business and Professions code, relating to the 2012 application round. In addition, name.space alleged common law trademark, unfair competition and tortious interference. In 2013, the district court granted ICANN's motion to dismiss the complaint, holding that the trademark and unfair competition claims failed to present a justiciable case or controversy, and that the other claims failed to state a claim upon which relief could be granted.

Under the Sherman Act section 1, plaintiffs need to prove a "contract, combination or conspiracy among two or more persons or distinct business entities." A complaint asserting this violation must allege facts "plausibly suggesting (not merely consistent) with a conspiracy. This plausibility standard does not impose a "probability requirement," but simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. The complaint alleged that the rules and procedures governing the 2012 Application Round were the result of a conspiracy between ICANN, its board members, and industry insiders. The complaint alleged only circumstantial evidence of an agreement among the alleged co-conspirators: (a) some of ICANN's board members have "known, vested interests in the economic performance of the TLD registries"; (b) ICANN and its board designed the rules for the 2012 Application Round; (c) the 2012 application price was significantly higher than the 2000 price, and the rules more complex; (d) the 2012 Application Round's price and rules conflicted with name.space's business model; (e) the majority of 2012 applicants were industry insiders and large technology companies; and (f) some potential applicants, including name.space, were deterred from applying in 2012 by the price and rules. The panel held that these allegations do not permit the inference of an anticompetitive agreement because they just as easily suggest rational, legal business behavior: "Here, ICANN's decision-making was fully consistent with its agreement with the DOC to operate the DNS and the Root." The complaint's section 1 claim fails because the factual allegations merely permit the inference that a conspiracy is possible rather than plausible.

Under Section 2 of the Sherman Act prohibits monopolization of the relevant market. Because ICANN is not a competitor in any of the three alleged markets, the panel held that it cannot serve as the basis for a § 2 monopoly claim. The panel further held that ICANN's authority was lawfully obtained through a contract with the DOC and that barring predatory behavior, which the complaint did not allege, ICANN is "free to choose the parties with whom [it] will deal, as well as the prices, terms, and conditions of that dealing."

The complaint also asserted Lanham Act, common law trademark, and common law unfair competition claims because ICANN accepted applications for TLDs in use by name.space. The panel held that these claims were not ripe for adjudication, finding that name.space has not alleged that ICANN has delegated or intends to delegate any of the TLDs that name.space uses.

To read full opinion, please visit:

https://www.icann.org/en/system/files/files/namespace-ninth-circuit-affirming-dismissal-31jul15-en.pdf

Panel: Percy Anderson, District Judge Presiding, Stephen Reinhardt, N. Randy Smith, Andrew D. Hurwitz, Circuit Judges.

Date of Issued Opinion: July 31, 2015

Docket Number: No. 13-55553

Decided: Affirmed

Case Alert Author: Robert J. Dagmy
Counsel:
Plaintiff - Appellant - Michael B. Miller (argued), Craig B. Whitney, Adam J. Hunt, Morrison & Foerster LLP, New York, New York.
Defendant - Appellee Jeffrey A. LeVee (argued), Eric P. Enson, Kathleen P. Wallace, Jones Day, Los Angeles, California,
Author of Opinion: Judge Hurwitz

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/17/2015 05:35 PM     9th Circuit     Comments (0)  

  Authors Guild v. Google, Inc. - Second Circuit
Headline: A "Snippet" in Time is Perfectly Fine: Second Circuit Holds Google's Online Searchable Libraries of Copyrighted Books is '"Fair Use" and Does Not Infringe Book Authors' Copyrights

Areas of Law: Copyright, Class Action

Issues Presented: Whether Google's digital copying of plaintiffs' copyright protected works, submitted to Google by libraries without the authors' authorization, to make them publically searchable by internet users for display of limited 'snippets' from those works, was sufficiently transformative to constitute fair use and, therefore, did not infringe authors' copyrights.

Whether Google's provision of complete digitized copies of plaintiffs' works to libraries that supplied the copyrighted works in hard copy, on the understanding that the libraries would use the copies in a manner consistent with copyright law, constituted copyright infringement.

Brief Summary: Plaintiffs are authors of published and copyrighted books. Under an agreement with participating libraries, and without the authorization or consent from plaintiffs, defendant Google, Inc. ("Google") received and scanned complete copies of plaintiffs' works to create a searchable database for research purposes. Plaintiffs brought a class action suit in the United States District Court for the Southern District of New York alleging copyright infringement.

The district court rejected an early proposed settlement and, following the district court's certification of plaintiffs' fourth amended class action complaint, Google appealed from the certification and moved for summary judgment, asserting their use of the works met the "fair use" defense under copyright law 17 U.S.C. § 107. The Second Circuit provisionally vacated the class certification without addressing the merits and remanded the case for purposes of resolving Google's fair use defense. On remand, the district court granted summary judgment, dismissing plaintiffs' claims with prejudice. Plaintiffs timely appealed and the United States Court of Appeals for the Second Circuit affirmed, holding that Google's use of the works was fair use under copyright law because its use of the works was transformative, its display of copyrighted material was properly limited, and Google Books did not serve as a market substitute for the original works.

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


Extended Summary: Plaintiffs are authors of published and copyrighted books. Defendant Google, Inc. ("Google") received and scanned complete copies of plaintiffs' works to create a searchable database for research purposes for its Google Library Project and Google Books search tool. The Google Library Project involved bilateral agreements between defendant and several of the world's major research libraries. These agreements permitted participating libraries to submit books form their collections to Google, which Google would scan, digitize, and index. Google retained the original scanned image of each work and stored it on servers protected by the same security systems used by Google to shield its own confidential information. Google then used these works - more than 20 million in all - to create a searchable database for research purposes. The agreements, even in their least restrictive form, required the libraries to employ digital copies of the scanned works in conformity with federal copyright law.

For its Google Books search tool, Google exhibited samples of plaintiffs' works through a publicly available search function, displaying a "snippet view" that contained three lines of sample text containing the searched-for terms in addition to telling the number of times the word or term selected by the searcher appeared in the text of the book. In launching the search tool, Google displayed no advertising to the user of the search function, nor did it receive direct payment from a user's activities. Google allowed only the first usage of the term searched for on a given page, limited to a maximum of three snippets. Google also "blacklisted" one snippet on each page and one complete page out of every ten, making those portions of the work unavailable for snippet view. This amounted to approximately 22% of the total text of a given work.

Plaintiffs brought a class action suit in the United States District Court for the Southern District of New York under 17 U.S.C. § 107 alleging copyright infringement. The district court rejected an early proposed settlement and, following the district court's certification of plaintiffs' fourth amended class action complaint, Google appealed from the certification and moved for summary judgment, asserting their use of the works met the "fair use" defense under copyright law. The Second Circuit provisionally vacated the class certification without addressing the merits and remanded the case for purposes of resolving Google's fair use defense. On remand, the district court granted summary judgment, dismissing plaintiffs' claims with prejudice. Plaintiffs timely appealed and the United States Court of Appeals for the Second Circuit.

On appeal, plaintiffs presented four arguments challenging the district court's ruling. First, they argued that digital copying entire books, and allowing internet users a window into small snippets, was not a "transformative use," and instead provided a substitute for the work. Second, they contended that, although Google made the works publically accessible without direct monetary gain, its revenue from its dominance of the internet search market precluded a fair-use finding. Third, plaintiffs suggested that Google's activities infringed upon their derivative rights by depriving them of revenues or other benefits they would gain from licensed search markets. Finally, plaintiffs contended that the digitized storage of the copyrighted works created a vulnerability that hackers could exploit to disseminate the full texts in contravention of plaintiffs' rights.

The Second Court began by discussing the common law origins of fair use, "which permits unauthorized copying in some circumstances, so as to further copyright's very purpose, to promote the Progress of Science and useful Arts" and was codified in 17 U.S.C. § 107 by Congress in a four factor test to determine fair use. The statute provides that "[t]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (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."

The Second Circuit highlighted the Supreme Court's historical grant of greater weight to the first factor, the "purpose and character of the secondary use," and to the fourth factor, "the effect of the use upon the potential market for or value of the copyrighted work," with the fourth factor having the greatest importance. In its analysis, the Court relied significantly on its 2014 decision in Authors Guild, Inc. v. HathiTrust, in which authors brought claims of copyright infringement against an entity formed by libraries participating in the Google Library Project to pool digital copies of books provided to them by Google. In HathiTrust, the Second Circuit held that the making of digital copies and the indexing of those copies via a search tool were fair uses, because "the creation of a full-text searchable database is a quintessentially transformative use." While the Court recognized distinctions between HathiTrust and the case before it, such as Google's display of a "snippet view" and the fact that defendant Google, unlike the defendant in HathiTrust, was a for-profit commercial corporation, it did not find those distinctions destructive to a fair use defense. Instead, the Court examined the nature of the snippets in detail. While the Court recognized that the snippet function could cause some loss of sales for plaintiffs, the fact that a study conducted by plaintiffs could reveal no more than 16% of a book, and because of the snippets' "brief . . . cumbersome, disjointed, and incomplete nature," the Court held that the Google Books search tool constituted a "fair use" did not provide a "significant substitute" for the purchase of plaintiffs' works.

The Court also rejected plaintiffs' argument that Google's use deprived them of derivative rights to revenue from licensed searches finding Google's use simply enabled members of the public to obtain information about whether those works were relevant to their research projects or other interests. Given the surgical manner in which Google restricted the snippets to provide a minimum of contextual background to members of the public, the court held such restriction did not infringe upon plaintiffs' derivative rights. The Court also rejected plaintiffs' argument that Google's storage of digitized copies of their works might expose plaintiffs' works to hackers, holding the argument "theoretically sound," but ineffectual in the absence of any evidence of an "impending" threat. The Court also noted plaintiffs' own security expert had praised Google's security systems, which it used to protect its own proprietary data in addition to plaintiffs' books. Finally, the Court held that defendant's agreements with libraries under the Google Library Project sufficient to protect against plaintiffs' copyright infringement claims because those libraries had agreed to adhere to federal copyright law in their use of Google Library Project texts.

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


Panel: Circuit Judges Leval, Cabranes, and Parker

Argument Date: 12/03/2014

Argument Location: New York, NY

Date of Issued Opinion: 10/16/2015

Docket Number: 13-4829-cv

Decided: Affirmed

Case Alert Author: Jake B. Sher

Counsel: Paul M. Smith, Jenner & Block LLP, Washington, DC, for Plaintiff-Appellants; Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Defendant-Appellee.

Author of Opinion: Judge Leval

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

Edited: 10/19/2015 at 06:11 AM by Elyse Moskowitz

    Posted By: Elyse Moskowitz @ 10/17/2015 10:17 AM     2nd Circuit     Comments (0)  

October 16, 2015
  In re Musical Instruments - Ninth Circuit
Headline: Plaintiff-class failed to plead sufficient plus factors, in conjunction with parallel conduct, to infer the plausible existence of an illegal horizontal agreement between business competitors.

Area of Law: Antitrust, Sherman Act § 1, Illegal Horizontal Agreements, Civil Procedure and pleading requirements under Bell Atlantic Corp. v. Twombly.

Issue Presented:
Whether plaintiffs have alleged sufficient circumstantial "plus factors," in addition to their allegations of "parallel conduct" between competing businesses, to provide a plausible basis from which to infer the existence of an illegal horizontal agreement consistent with the Supreme Court's decision in Bell Atlantic Corp. v. Twombly.

Brief Summary:
Plaintiffs filed this putative class action against five manufacturer defendants claiming the competitor manufacturers entered into agreements with one another which resulted in illegal price fixing. The United States Supreme Court has held it is a per se violation of the Sherman Antitrust Act for competitors to enter into "horizontal" agreements with one another. While plaintiffs did not have any direct evidence of such agreements, they relied on parallel business conduct, in conjunction with six "plus factors" which they claimed showed defendants colluded with one another. The Ninth Circuit panel, with Judge Pregerson dissenting, held that plaintiffs' allegations of parallel conduct, in conjunction with several "plus" factors, were insufficient to provide a plausible basis from which to infer the existence of these alleged horizontal agreements.

Significance:
Under Bell Atlantic Corp. v. Twombly, an antitrust complaint must allege sufficient 'plus factors' in addition to showing parallel conduct to support a plausible inference of a price-fixing conspiracy. Two of the three panel judges rejected plaintiffs' claim that it is plausible to infer a price-fixing conspiracy based only on their allegations that certain guitar manufacturers each adopted similar advertising policies ("parallel conduct") under circumstances that suggest the manufacturers agreed among themselves to adopt those policies ("plus factors").

Extended Summary:
In this federal class action suit, plaintiffs claimed the National Association of Music Merchants (NAMM) and the large music retail store Guitar Center conspired with five major guitar manufacturers (Fender, Gibson, Yamaha, Hoshino and Kaman hereafter "manufacturer defendants") to implement minimum-advertising price policies ("MAP policies"). The MAP policies effectively set a minimum dollar figure that each manufacturer defendant had to spend on marketing, which as a result, raised the cost of guitars. It was the plaintiff's position that each of the five manufacturer defendants agreed with one another to implement the MAP policies, while defendants maintained they did not agree with one another, but that each of them independently agreed with retailer, Guitar Center, to enact the policies.

According to the Sherman Act, retailers can enter into agreements with manufacturers but competing manufacturers cannot enter agreements with one another. These "horizontal agreements" between competing manufacturers are per se banned because they give competing market participants the ability to fix prices instead of letting the market dictate the cost of goods.

Plaintiffs claim Guitar Center pressured each of the manufacturer defendants to adopt the MAP policies and that the defendant manufactures in turn agreed amongst themselves to adopt the policies. Plaintiffs did not provide any direct evidence supporting their claims, but instead relied solely on the circumstantial fact that all manufacturer defendants did in fact initiate the MAP policies.

When a plaintiff uses circumstantial evidence of parallel conduct to bring a claim under section 1 of the Sherman Act, he must "plead enough non-conclusory facts to place that parallel conduct in a context that raises a suggestion of a preceding agreement." To meet its burden, plaintiff must plead sufficient facts to prove the companies engaged in economic actions that are mostly consistent with some coordinated action, rather than independent conduct in an interdependent economy. Put another way, whether there exists sufficient 'plus factors' that suggest the defendants entered into illegal agreements. Plaintiffs claimed there were six (6) different 'plus factors' that suggested manufacturer defendants had illegally agreed with one another to initiate the MAP policies.

Plaintiffs first claimed that each of the defendants had a common motive. The court quickly dismissed this factor as all businesses have a common motive: to increase profits and make money. The common motive of making money does not itself indicate collusion.

Next, plaintiffs claimed each of the manufacturer defendants acted against their own self-interest when they agreed to increase their minimum marketing costs by adopting MAP policies. The panel rejected this claim, finding that plaintiffs' own allegations of pressure by Guitar Center, an important customer, to adopt MAP policies provide "ample independent business reasons why each of the manufacturers adopted and enforced MAP policies even absent an agreement among the defendant manufacturers."

The plaintiff's third alleged plus factor was that each manufacturer defendant simultaneously adopted the MAP policies. However in their complaint, plaintiffs claimed the defendants adopted the policies over a number of years. The panel found that "[a]llegations of such slow adoption of similar policies does not raise the specter of collusion."

Plaintiffs' fourth plus factor suggesting an agreement among defendants was an FTC investigation of NAMM. Prior to the filing of this lawsuit, the FTC had conducted an investigation on NAMM where it held there was no purpose for NAMM members to exchange certain information (each manufacturer defendant is a member of NAMM). The panel rejected plaintiff's contention because the FTC Act, unlike the Sherman Act, does not require allegation and proof of a combination or conspiracy and, further, neither the FTC complaint nor consent decree alleged that "any group or company actually conspired or agreed to adopt MAP policies . . . ".

The fifth alleged plus factor was the mere fact that each manufacturer defendant participated in NAMM meetings. Like the first plus factor alleged, the court quickly disposed of this argument stating the mere participation in trade organizations meetings where information is exchanged does not amount to illegal agreement or conspiracy.

Lastly, plaintiffs cite as evidence of collusion the complaint's allegations that the price of guitars and guitar amplifiers rose at the same time the total number of units fell at the same time that the manufacturer defendants initiated the MAP policies. The court rejected this reasoning since the price of all guitars increased, not just guitars of the named defendants. Further, the panel's majority found that plaintiffs "did not allege any facts connecting the purported price increase to an illegal agreement among competitors. And without such a connection, there is simply no basis from which we can infer an agreement."

Rejecting the dissent's position that, "'when analyzed together,' plaintiffs' purported plus factors provide a context that plausibly suggests that 'an illicit horizontal agreement was made between the manufacturer defendants,'" the panel found that "[p]laintiffs have indeed provided a context for the manufacturers' adoption of MAP policies, but not one that plausibly suggests they entered into illegal horizontal agreements. Instead, the complaint tells a different story, one in which Guitar Center used its substantial market power to pressure each manufacturer to adopt similar policies, and each manufacturer adopted those policies as in its own interest." The panel affirmed the district courts 12(b)(6) dismissal.

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/08/25/12-56674.pdf

Panel: Harry Pregerson, Richard C. Tallman, and Carlos T. Bea, Circuit Judges.

Argument Date: October 6, 2014

Date of Issued Opinion: August 25, 2015

Docket Number: No. 12-56674

Decided: Affirmed the District Court granting defendant's 12(b)(6) dismissal.

Case Alert Author: Brian D. Shapiro

Counsel:
Daniel C. Girard, Elizabeth C. Pritzker, Amanda Steiner, Scott M. Grzenczyk (argued), Girard Gibbs LLP, San Francisco, California, for Plaintiffs-Appellants.
Margaret M. Zwisler (argued), J. Scott Ballenger, Latham & Watkins LLP, Washington, D.C.; Christopher S. Yates, Latham & Watkins LLP, San Francisco, California, for Defendant-
Author of Majority Opinion: Judge Bea
Circuit: Ninth Circuit
Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/16/2015 07:06 PM     9th Circuit     Comments (0)  

  First Intercontinental Bank v. Christina Ahn, Ninth Circuit
Headline: The Ninth Circuit panel, applying California's choice-of-law doctrine, affirmed the district court's ruling that California law - which prohibits the enforcement of unilateral attorney's fees clauses in contracts - governs the enforceability of the contract's unilateral attorney's fees clause, where the contract contains a choice-of-law provision calling for the application of Georgia law which permits non-reciprocal attorney's fees clauses.

Area of Law: Civil Procedure, Choice of Law
Issues Presented: Whether California or Georgia law governs a dispute over the enforcement of a contract's unilateral attorneys' fees clause when California law prohibits the use of non-reciprocal attorney's fees but the contract contained a choice-of-law provision specifying the application of Georgia law which permits such non-reciprocal clauses.

Brief Summary:
The district court awarded defendant summary judgment, releasing her from any obligations under a loan agreement she had signed with plaintiff Bank, and filed a Motion for Attorneys' Fees. The loan contract provided for attorneys' fees only to the Bank in case of a dispute, and also provided that Georgia law governed the contract. California Civil Code section 1717(a) makes reciprocal otherwise unilateral attorneys' fees clauses in contracts, so the panel had to decide whether to apply Georgia or California law to determine whether defendant should prevail.

Since the action was brought in California, California's choice-of-law rules govern the dispute. The panel followed the approach outlined in California Restatement (Second) of Conflict of Laws § 187. Although the panel found the that there was a reasonable basis for the choice-of-law provision contained in the loan agreement , the panel also found that California law would be applied in the absence of the choice-of-law provision, and that California a fundamental public policy against unilateral attorneys' fees provisions. Since the Bank chose to bring the action in California, and the defendant is a California resident, the panel ruled that California has a materially-greater interest than Georgia in seeing its own public policy applied.

The decision of the panel affirmed the district court's award of attorney's fees to defendant.

Extended Summary:
Plaintiff Bank brought suit in federal district court for repayment of a loan. The Bank added Christina Ahn as a defendant although it had previously released her from the loan in her individual capacity. The district court granted summary judgment to Christina, who then filed a Motion for Attorneys' Fees and Costs. The district court granted Christina's motion and awarded attorneys' fees to her.

The loan contract only provided for attorneys' fees to the lender in case of successful litigation. It also included a choice-of-law provision specifying that Georgia law governs the contract. However, California Civil Code section 1717(a) makes reciprocal otherwise unilateral attorney's fees clauses in contracts, so the panel had to decide whether to apply Georgia or California law to determine whether Christina should prevail.

Since the action was brought in California, the district court correctly applied California's choice-of-law rules. The panel determined that California choice-of-law doctrine follows the Restatement (Second) of Conflict of Laws § 187 which provides a four-step approach to determine the law to apply when a contract has a choice-of-law provision:

(1) The first question is "whether the chosen state has a substantial relationship to the parties or their transaction, or . . . whether there is any other reasonable basis for the parties' choice of law."
(2) If yes, the court next determines whether California law would be applicable in the absence of effective choice-of-law by the parties.
(3) If yes, the court then determines whether the relevant portion of the chosen state's law is contrary to a fundamental policy in California law.
(4) If yes, the court finally determines whether California has a "materially greater interest than the chosen state in the determination of the particular issue." If yes, California law is applied. If the answer to any of these questions is no the court applies the law of the forum selected in the contract.

Since the Bank is located in Georgia, and the contract and related documents were drafted in Georgia, there is a reasonable basis for the choice-of-law provision contained in the contract.

To decide whether California would apply its own law in the absence of the choice-of-law provision, the Court looked to Restatement (Second) of Conflict of Laws section 188. The restatement provides five factors to consider: (a) the place of contracting; (b) the place of negotiation of the contract; (c) the place of performance; (d) the location of the subject matter of the contract; and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. The contract was made and negotiated in both California and Georgia. The payments were due in Georgia but it is unclear where Christina made payments from. The loan contract was for a hotel in Louisiana, and Christina is a citizen of California while the Bank's principal place of business is in Georgia. Therefore none of the factors favor either state. The panel adopted the approach used by the California District Court of Appeals in ABF Capital Corp. v. Grove Properties Co. which applied California law where the factors do not lead to a clear conclusion. Accordingly, the panel determined that California would apply its own law to the dispute in the absence of the choice-of-law provision selecting Georgia law.

Next, the panel found that California Civil Code section 1717(a) embodied a fundamental public policy against non-reciprocal attorney's fees clauses. The legislature's purpose behind section 1717(a) is to enable consumers and others who may be in a disadvantageous contractual bargaining position to protect their rights through the judicial process by permitting recovery of attorneys' fees incurred in litigation in the event they prevail. The panel ruled that applying Georgia law would be contrary to California's fundamental public policy.

Finally, the panel focused on two factors to determine whether California has a materially-greater interest than another state in an attorneys' fees dispute: (1) whether the parties chose to bring litigation in a California state court; and (2) the citizenship of the parties. Here, the Bank chose to file the lawsuit in federal district court in California rather than another state. Also, since Christina is a California citizen and would be on the losing end of a non-reciprocal attorneys' fees provision, California has a substantial interest in applying its own law in this case.

The panel held that section 1717(a) governs the outcome of this case and affirmed the district court's decision to award attorneys' fees to the defendant.

To read the full opinion, please visit:

http://www.thompsoncoburn.com/...m_Documents/ahn_1.pdf

Panel: Milan D. Smith, Jr. and N. Randy Smith, Circuit Judges, and Joan H. Lefkow, Senior District Judge

Argument Date: June 5, 2015
Date of Issued Opinion: August 18, 2015
Docket Number: 13-56097
Decided: Affirmed
Case Alert Author: Matthew J. Gustin

Counsel:
S. Young Kim (argued), Park & Lim, Los Angeles, California, for Plaintiff-Appellant.

Natalie Ikhlassi (argued) and Helen B. Kim, Thompson Coburn LLP, Los Angeles, California, for Defendants-Appellees.

Author of Opinion: Judge Milan D. Smith, Jr.
Circuit: Ninth
Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/16/2015 05:46 PM     9th Circuit     Comments (0)  

October 15, 2015
  Syed Farhaj Hassan v. City of New York - Third Circuit
Headline: Third Circuit Says Muslim Groups Can Bring Lawsuit Against City of New York for Targeting Them With Special Police Surveillance Because of Their Religious Affiliation

Area of Law: Civil Rights

Issue Presented: Do allegations that a police department has targeted Muslim individuals and institutions for special surveillance based solely on their religious affiliation state valid claims of discrimination under the United States Constitution?

Brief Summary: This case involves the constitutionality of police surveillance on members of a particular religious group based solely on their membership in the religion and not on any specific conduct of particular members that raised concerns of criminality. Plaintiffs were individuals and entities associated with the Islamic faith. They alleged that that the City of New York targeted them in a wide-ranging surveillance program conducted by the New York City Police Department because Plaintiffs were Muslim or believed to be Muslim. The Third Circuit Court of Appeals found that Plaintiffs claims of unconstitutional behavior should not have been dismissed without a trial on the merits by the District Court. Plaintiffs plausibly alleged that the surveillance was discrimination based on religious affiliation. The Court found religious affiliation to be a suspect classification and was therefore subject to a heightened degree of scrutiny under the Equal Protection Clause of the US Constitution. The City of New York had the burden of justifying its surveillance program as necessary to further an important, perhaps even compelling, government interest. Because the City had failed to do so in its motion to dismiss, it was appropriate to remand the case to the District Court for further determination of the merits.

Extended Summary:
Plaintiffs were individuals and other entities associated with the Islamic faith. They alleged that the City of New York (the "City") targeted them in a wide-ranging surveillance program (the "Program") conducted by the New York City Police Department ("NYPD") beginning after the September 11 terrorist attacks. Plaintiffs alleged that they were targeted because they were Muslim or believed to be Muslim. In their complaint, Plaintiffs alleged that the Program was based on the false and stigmatizing premise that the Muslim religious identity was a permissible proxy for criminality. Thus, the Program endorsed pervasive surveillance of Muslim individuals, businesses, and institutions not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.

The NYPD executed the Program by monitoring the lives of Muslims, their businesses, houses of worship, organizations, and schools in the City and surrounding states, particularly New Jersey, through such means as snapping pictures, taking videos, recording conversations, and infiltrating Muslim-affiliated locations. The Plaintiffs also alleged that the Program intentionally targeted Muslims by using ethnicity as a proxy for faith because the NYPD expressly chose to exclude people and establishments that had ancestries of interest under the Program if they were not Muslim. The reports that resulted from this surveillance provided names and other identifying information about individuals, businesses, and organizations. According to Plaintiffs, however, none of the information collected showed any indication of criminal activity. The Program was initially conducted in secret, but the Program was disclosed to the public by various news media and has become public knowledge in New Jersey and elsewhere.
The District Court granted the City's motion to dismiss, and Plaintiffs appealed the District Court's decision to the Third Circuit Court of Appeals.

In its opinion, the Third Circuit found that plaintiffs had plausibly alleged intentional discrimination under the Equal Protection Clause of the Fourteenth Amendment. To plausibly allege intentional discrimination, Plaintiffs' religious affiliation must have been a substantial factor in their being surveilled more than members of any other religion. Plaintiffs plausibly alleged that the Program was facially discriminatory against Muslims because they alleged that the Program relied on an express classification of Muslims for disfavored treatment. To support their allegations, Plaintiffs alleged ample factual content about the Program above and beyond what the Federal pleading rules required, allowing the Court to draw the reasonable inference that the City is liable for the misconduct alleged. Plaintiffs also alleged that all these persons and entities were surveilled without any reasonable suspicion of wrongdoing to explain the NYPD's investigation. Therefore, Plaintiffs plausibly alleged that the Program was facially discriminatory.
Furthermore, the City intentionally discriminated against Plaintiffs. The City meant to single out Plaintiffs because they were Muslim or believed to be Muslim. Even if the NYPD was subjectively motivated by a legitimate law-enforcement purpose, such as public safety, they intentionally discriminated against Plaintiffs if they wouldn't have surveilled them had they not been Muslim.
The Third Circuit went on to find that the City's alleged intentional discrimination against Plaintiffs was not legally justified. According to the Court, classifications based on religious affiliation should trigger heightened scrutiny under the Equal Protection Clause, because religion is a suspect classification. Although this was an issue of first impression in the Third Circuit, the Court noted that a number of its sister courts - the Second, the Eighth, the Ninth and the Tenth Circuits - has reached the same conclusion. The Court found that discrimination based on religion is suspect because it is based on a characteristic that people should not be compelled to change because it is fundamental to their identities. Additionally, religious discrimination was suspect because it had a long a history of being used as a tool for the oppression and subordination of minority groups and has been intertwined with discrimination based on other protected characteristics like national origin and race in the past. Finally, Congress and the Executive Branch forbade religious discrimination in statutes, such as Title VII and the Patriot Act, and executive pronouncements. However, the Court did not determine which level of heightened scrutiny the Program should be subject to - either intermediate scrutiny or strict scrutiny - because the City bore the burden of proof with respect to both standards, and because it believed it was more appropriate for the District Court to make that determination in the first instance on remand.

Because heightened scrutiny applied to the City's conduct, the City needed to demonstrate a much stronger justification for its conduct and a much tighter relationship between the means employed and the ends served by the conduct. The City bore the burden of proof of justifying the means and ends of its conduct. The City could not have simply asserted that the Program was justified by national security and public safety. The City did not meet its burden on its motion to dismiss. The relationship between the City's justification and discriminatory means employed must have been sustained by objective evidence and not merely by the potential threat to national security and public safety. Moreover, even if the City were justified in employing a discriminatory classification to further a compelling state interest, it was constrained in how it could have pursued that end.

Accordingly, the Third Circuit reversed the District Court's decision to grant the defendant's motion to dismiss and remanded the case to the District Court for further proceedings consistent with the opinion.

For the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/141688p.pdf

Panel (if known): Ambro, Fuentes, and Roth, Circuit Judges

Date of Argument: January 13, 2015

Date of Issued Opinion: October 13, 2015

Docket Number: No. 14-1688

Decided: Reversed

Case Alert Author: Sarah Adams

Counsel: Baher A. Azmy, Esq., Ghita Schwarz, Esq., Omar Farah, Esq., Glenn Katon, Esq., Farhana Khera, Esq., Adil Haq, Esq., Lawrence S. Lustberg, Esq., Joseph A. Pace, Esq., Partia Dolores Pedro, Esq., counsel for Appellants; Zachary W. Carter, Corporation Counsel of the City of New York, Richard P. Dearing, Esq., Peter G. Farrell, Esq., Celeste Koeleveld, Esq., Alexis Leist, Esq., Anthony DiSenso, Esq., William Oates, Esq., Cheryl Shammas, Esq., Odile Farrell, Esq., counsel for Appellee; Ayesha N. Khan, Esq., Gregory M. Lipper, Esq., Alexander J. Luchenitser, Esq., counsel for Amicus Appellant Americans United for Separation of Church and State; Benjamin C. Block, Esq., William Murray, Esq., Stephen J. Schulhofer, Esq., Robert L. Rusky, Esq., counsel for Amicus Appellants Karen Korematsu, Jay Hirabayashi, and Holly Yasui; Brian D. Boyle, Esq., Walter E. Dellinger, III, Esq., Deanna M. Rice, Esq., Nausheen Hassan, Esq., counsel for Amicus Appellants 100 Blacks in Law Enforcement Who Care, Chris Burbank, and Eric Adams; Gregory J. Wallance, Esq., W. Stewart Wallace, Esq. Michael Robertson, Esq., counsel for Amicus Appellants Asian American Legal Defense and Education Fund, American Arab Anti-Discrimination Committee, Universal Muslim Association of America Advocacy, South Asian Americans Leading Together, Shia Rights Watch, New Jersey Muslim Lawyers Association, National Network for Arab American Communities, National Lawyers Guild New York City Chapter, Muslim Public Affairs Council, Muslim Legal Fund of America, Muslim Consultative Network, Muslim Bar Association of New York, Muslim American Civil Liberties Coalition, Creating Law Enforcement Accountability and Responsibility, Arab American Association of New York, Asian Americans Advancing Justice - Asian Law Caucus, and South Asian Organization, Project SALAM; Ronald K. Chen, Esq., Edward Barocas, Esq., Jeanne LoCicero, Esq., Alexander Shalom, Esq., counsel for Amicus Appellants American Civil Liberties Union of New Jersey, LatinoJustice PRLDEF, Mexican American Legal Defense and Educational Fund, Bill of Rights Defense Committee, Garden State Bar, Association, Hispanic Bar Association of New Jersey, and Association of Black Women Lawyers of New Jersey; Bruce D. Brown, Esq., Gregg P. Leslie, Esq., Jamie T. Schuman, Esq., Jennifer A. Borg, Esq., counsel for Amicus Appellants Reporters Committee for Freedom of the Press and North Jersey Media Group Inc.; Michael W. Price, Esq., Faiza Patel, Esq., counsel for Amicus Appellant Brennan Center for Justice at New York University School of Law; Allen P. Pegg, Esq., counsel for Amicus Appellants Sikh Coalition, Interfaith Alliance Foundation, National Council of the Churches of Christ in the USA, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, Islamic Society of North America, Bend the Arc: A Jewish Partnership for Justice, Hindu Temple Society of North America, Auburn Theological Seminary, National Council of Jewish Women, Universal Muslim Association of America, American Humanist Association, Sikh American Legal Defense and Education Fund, Muslim Alliance in North America National Religious Campaign Against Torture, Reconstructionist Rabbinical Association, Imam Mahdi Association of Marjaeya, Muslims for Peace, T'ruah: The Rabbinic Call for Human Rights, Ta'leef Collective, Muslim Congress, Unitarian Universalist Legislative Ministry of New Jersey, Queens Federation of Churches, Inc., Northern California Islamic Council, Council of Islamic Organization of Greater Chicago, and Islamic Shura Council of Southern California.

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 10/15/2015 01:31 PM     3rd Circuit     Comments (0)  

  Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services - Eighth Circuit
Headline Eighth Circuit panel upholds preliminary injunction enjoining the government from enforcing certain provisions of the Patient Protection and Affordable Care Act against certain nonprofit religious organizations

Area of Law Affordable Care Act

Issue(s) Presented Whether the district court properly entered a preliminary injunction enjoining the government from enforcing certain provisions of the Patient Protection and Affordable Care Act against nonprofit religious organizations that object to some forms of contraceptive coverage.

Brief Summary Plaintiffs CNS International Ministries, Inc. ("CNS") and Heartland Christian College ("HCC") are Missouri nonprofit corporations that provide residential and educational services, respectively. Both CNS and HCC offer healthcare coverage to employees through self-insured group plans. Christian belief and practice are integral to their identities. As such, CNS and HCC object to providing healthcare coverage for certain forms of contraceptives they view as akin to abortion.

The Patient Protection and Affordable Care Act (the "ACA"), requires that all group health plans and health insurers must provide coverage for all Food and Drug Administration approved contraceptive methods. Employers that fail to comply with the contraceptive mandate face monetary penalties. The ACA does provide an exemption for health plans that existed at the time of its passage, and for group health plans sponsored by narrowly defined religious employers, such as churches. The statute also provides an "accommodation" for religious organizations that have religious objections to the contraceptive mandate but do not qualify for the religious-employers exemption. After self-certifying that it meets the criteria for the accommodation, the organization's third-party administrator ("TPA") must provide or arrange payments for contraceptive services for the employees covered by the organization's healthcare plans. As such, women employed by organizations which seek the accommodation are still provided with contraceptives coverage. CNS and HCC meet the criteria to be eligible for this accommodation.

CNS and HCC filed suit against the U.S. Departments of Health and Human Services, Treasury, and Labor, along with their respective Secretaries (collectively "HHS"), challenging certain provisions of the ACA. They argue that both the contraceptive mandate and the accommodation process impose a substantial burden on their exercise of religion in violation of the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment. Specifically, CNS and HCC argue that through the contraceptive mandate the government is coercing them to violate their religious beliefs by threatening monetary penalties unless they either directly provide contraceptive coverage, or indirectly provide the same coverage through the accommodation process. With respect to the accommodation process, CNS and HCC claim that by submitting a document to self-certify that they are eligible for an accommodation, they trigger contraceptive coverage by a TPA. Thus, CNS and HCC argue, their actions lead to the provision of contraceptives they object to on religious grounds.

The District Court granted injunctive relief, relying on an earlier order enjoining enforcement of ACA contraceptive mandate regulations against certain for-profit plaintiffs. HHS appealed, arguing that the TPAs have a separate and independent obligation under the ACA to provide contraceptive coverage to CNS and HCC's employees. HHS further argued that, even assuming there was a substantial burden on the exercise of religion, the accommodation process is the least restrictive means possible to accomplish its compelling interest in ensuring access to no-cost contraceptive coverage.

The Eighth Circuit rejected HHS's arguments, and affirmed the District Court's order granting a preliminary injunction. It did not address the First Amendment claims because it concluded that CNS and HCC were entitled to relief based on the RFRA claims. The Eighth Circuit found that by imposing monetary penalties should CNS and HCC adhere to their religious beliefs and refuse to comply with the contraceptive mandate or the accommodation process, the government placed a substantial burden on the organizations' exercise of religion. The Court rejected precedent from other courts that sided with the government in concluding that, as a matter of law, the accommodation process did not trigger or otherwise make religious organizations complicit in the provision of contraceptive coverage. Instead, the Eighth Circuit stressed that, in light of Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), it must accept CNS and HCC's assertions that self-certification under the accommodation process would violate their sincerely held religious beliefs by facilitating provision of a form of abortion. The Eighth Circuit stated that "[t]he question here is not whether CNS and HCC have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage. Their affirmative answer to that question is not for us to dispute." As such, the Eighth Circuit concluded that in light of these sincerely held religious beliefs, compelling participation in the accommodation process under threat of monetary penalties substantially burdened CNS and HCC's exercise of religion.

Finally, the Eighth Circuit assumed for purposes of its analysis that the government had a compelling interest in guaranteeing cost-free contraceptive coverage in examining whether the accommodation process is the least restrictive means possible for achieving that compelling interest. It determined that the accommodation process is not the least restrictive means, and provided a number of examples of less restrictive options through which the government could provide free contraceptive coverage.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/09/141507P.pdf

Panel Circuit Judges Benton, Colloton, and Wollman

Date of Issued Opinion September 17, 2015

Decided Affirmed

Docket Number 14-1507

Counsel Patrick Nemeroff for Appellants and Timothy Belz for Appellees

Author Circuit Judge Wollman

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

    Posted By: Joelle Larson @ 10/15/2015 10:41 AM     8th Circuit     Comments (0)  

October 13, 2015
  McDonough v. Anoka County - Eighth Circuit
Headline Eighth Circuit panel rules on consolidated appeal challenging dismissal of four separate actions alleging data privacy violations against numerous Minnesota cities, counties, government entities, law enforcement personnel, and Department of Public Safety commissioners and employees

Area of Law Statute of Limitations; Privacy

Issues Presented Whether district courts properly dismissed Plaintiffs' actions alleging violation of the Driver's Privacy Protection Act on statute of limitations and failure to meet pleading standard grounds.

Brief Summary Plaintiffs are four individuals who allege that various law enforcement officers accessed their drivers' license data without a permissible basis, in violation of the Drivers Privacy Protection Act ("DPPA"). 18 U.S.C. §§ 2721-2725.

Defendant cities and counties moved to dismiss on statute of limitation grounds, arguing that claims based on accesses occurring more than four years prior to the date of complaint were barred by the applicable statute of limitations. Plaintiffs argued that the statute of limitation for each allegedly improper lookup did not begin to run until the lookup was discovered, or with due diligence should have been discovered, rendering their claims timely.

Defendant cities and counties also moved to dismiss on the basis that Plaintiffs failed to plead a plausible claim under the Twombly/Iqbal standard that the accesses were for an improper purpose. Defendant Department of Public Safety ("DPS") commissioners and employees moved to dismiss on the basis that the DPPA does not make them liable for permitting allegedly unlawful access by others.

In separate decisions, the district courts in each case dismissed the complaints, holding: (1) that claims based on lookups occurring more than four years prior to the filing of the complaint are barred by the applicable statute of limitations, declining to apply the discovery rule; (2) that Plaintiffs failed to meet the Twombly/Iqbal standard requiring them to plead a plausible claim that the lookups at issue lacked a valid law enforcement purpose; and (3) that Plaintiffs failed to state a claim against the DPS commissioners and employees. Plaintiffs appealed.

The Eighth Circuit affirmed the district courts on the statute of limitations issue, holding that the discovery rule does not apply to DPPA claims. In so holding, the Eighth Circuit called into question its prior precedent on the discovery rule, based upon its reading of the Supreme Court's ruling in Gabelli v. SEC, 133 S. Ct. 1216 (2013). The Eighth Circuit observed that while it has generally "applied the discovery rule as the default statute-of-limitations rule in the absence of a contrary directive from Congress," the Supreme Court "has never adopted that position as its own."

Based upon its reading of Gabelli and TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001), the Eighth Circuit held that where the text, structure, and purpose of a limitations provision suggest that Congress may not have intended for the discovery rule to apply, courts in the Eighth Circuit should "take into account the general policy underlying the statute of limitation, as well as equitable considerations relevant to the cause of action at hand, when determining whether to apply the discovery or occurrence rule." Applying these considerations to the DPPA, the Eighth Circuit held that the statute of limitations for DPPA claims runs from the date of the allegedly improper access, irrespective of when it was discovered.

With respect to the non-time barred claims, the Eighth Circuit conducted a fact intensive analysis of the non-time barred lookups to determine whether the facts pled were sufficient to state a plausible claim for relief. The Eighth Circuit reversed three of the four cases, finding that the facts alleged by those Plaintiffs met the Twombly/Iqbal pleading standard, and remanded for further proceedings.

The Eighth Circuit also applied qualified immunity to affirm the dismissal of claims against DPS commissioners and employees.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/08/141754P.pdf

Panel Circuit Judges Beam, Colloton, and Wollman

Date of Issued Opinion August 20, 2015

Decided Affirmed in part and reversed in part

Docket Number 14-1754, 14-1756, 14-1765, 14-1974

Author Circuit Judge Wollman

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

    Posted By: Joelle Larson @ 10/13/2015 02:02 PM     8th Circuit     Comments (0)  

October 9, 2015
  Baldwin v. EMI Feist Catalog
Case Name: Baldwin v. EMI Feist Catalog, Inc.

Headline: Rights To "Santa Claus is Comin' to Town" Will Return to Songwriter's Family in 2016

Area of Law: Copyright

Issue(s) Presented: Whether the notice of termination that the statutory heirs of the songwriters served on the defendant validly terminated the defendant's copyright.

Brief Summary: The plaintiffs - the statutory heirs of J. Fred Coots, who co-wrote "Santa Claus is Comin' To Town" - began trying in 2004 to terminate rights in the song held by defendant EMI Feist Catalog, to whom Coots and his co-writer had sold the song and copyright in 1934. In 2007 and again in 2012, they served copyright termination notices on the defendant. They subsequently sought a declaratory judgment that these termination notices were effective and that the defendant's rights in the song would terminate as of 2016. Although the United States District Court for the Southern District of New York ruled against them, the United States Court of Appeals for the Second Circuit reversed that decision and ruled in their favor.

Extended Summary: J. Fred Coots and Haven Gillespie, the authors of "Santa Claus is Comin' to Town," ("the Song") first sold their rights to the Song to EMI Feist Catalog, the defendant, in 1934. In 1951, the authors then granted all renewal rights and extensions of all copyrights to the Song for all renewal periods to EMI. EMI later renewed their copyright in the Song, setting an expiration date of 1990. However, in 1976 Congress enacted a statutory scheme that gave authors and their statutory heirs the right to terminate previously made grants of copyright, and to recapture some of the value associated with the authors' work. The 1976 statutory scheme also extended EMI's renewal term until 2009.

According to the statutory scheme, which created two classes of copyright grants, pre-1978 and post-1978, the 1951 Agreement was subject to termination starting on September 27, 2009 and termination could be served as early as ten years before that date. In 1981, Coots heirs served the first termination notice on EMI, naming October 23, 1990, as the termination date for the 1951 Agreement. Following the 1981 Termination Notice, EMI and the heirs negotiated an Agreement, the 1981 Agreement. The 1981 Agreement recited that Coots had transferred the Song's renewal term to EMI in 1951, that EMI had renewed the copyright, and that Congress extended the renewal term, and that EMI possessed all of the copyright interest for the balance of the period. The 1981 Termination Notice was returned to the heirs, and unrecorded. In 1998 Congress enacted the Sonny Bono Copyright Term and added a new termination right that could be effected at any time during a period of 5 years beginning at the end of 74 years from the date copyright was originally secured. This meant that in the case of the Song, termination could start on September 27, 2009.

In 2004, the author's heirs served EMI a termination notice with an effective date of September 27, 2009. EMI responded that the heirs had already exercised their termination rights. The heirs served EMI again in 2007 and 2011, with similar responses from EMI. EMI continually argued that the heirs already exercised their termination right and that they owned the copyright pursuant to the 1951 Agreement and termination was unavailable. According to the 1978 Statutory Scheme, if EMI owned copyright under the 1951 Agreement, the heirs were powerless to termination, but if EMI owned the copyright under the 1981 Agreement, the heirs could effectively terminate. In 2011 the heirs sued EMI seeking declaration that termination was effective. The district court granted summary judgment to EMI, holding that its rights in the song were pursuant to the 1951 Agreement, and termination was unavailable.

The United States Court of Appeals for the Second Circuit reversed, and entered a declaratory judgment in the Plaintiff's. The Second Circuit found that EMI owned the copyright pursuant to the 1981 Agreement, as it was sufficiently clear the parties intended it to replace the 1951 Agreement. The Second Circuit then found that because EMI owned the copyright pursuant to the 1981 agreement, which was a post-1978 agreement, the heirs were entitled to terminate. Therefore, the 2007 Termination Notice will terminate the 1981 Agreement in 2016 and the Song's copyright will be owned by the author's heirs. To read the full decision please visit: http://www.ca2.uscourts.gov/de...e9cbbea3e97a/1/hilite/

Panel: Circuit Judges Pooler, Livingston, and Droney

Argument Date: December 11, 2014

Argument Location: New York

Date of Issued Opinion: October 8, 2015

Docket Number: No. 14-182-cv

Decided:
Reversed and Remanded

Case Alert Author: Elizabeth Perreca

Counsel: Thomas K. Landry, Carey Rodriquez O'Keefe Milian Gonya, LLP, for Plaintiffs-Appellants.
Donald S. Zakarin (Frank P. Scibilia, Ross M. Bagley, on the brie), Pryor Cashman LLP, for Defendant-Appellee.

Author of Opinion: Judge Debra Ann Livingston

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman
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    Posted By: Emily Waldman @ 10/09/2015 01:03 PM     2nd Circuit     Comments (0)  

October 7, 2015
  Parker v. Stevenson, et al. -- Fourth Circuit
Headline: Individual Without Attorney Presents Viable Claim: Excessive Force Claim Reconsidered Where Lower Court's Sole Focus Was Severity of Injury

Areas of Law: Civil Procedure, Eighth Amendment

Issue Presented: Whether the district court erred in dismissing appellant's excessive force, cruel and unusual punishment, and deliberate indifference claims.

Brief Summary: In a per curiam opinion, the United States Court of Appeals for the Fourth Circuit vacated and remanded for further proceedings appellant Rodney Parker's excessive force claim within his civil complaint for deprivation of rights filed under 42 U.S.C. §1983.

Extended Summary: In 2012, in the U.S. District Court for the District of South Carolina, Rodney Parker filed a § 1983 civil action for deprivation of rights. The complaint raised Eighth Amendment excessive force, cruel and unusual punishment, and deliberate indifference claims against individuals at his prison, including the Warden, as well as several sergeants, officers, and a nurse. Specifically, Parker alleged (1) that an extraction team of correctional officers beat him and used excessive force when removing him from his cell and placing him in a restraint chair; (2) that his placement in a control cell without clothing, utensils, bedding, or a mattress for an extended period of time constituted cruel and unusual punishment and deliberate indifference; and (3) that the prison officials were deliberately indifferent for not providing adequate medical care for swelling in his lower extremities.

The district court granted summary judgment for the Defendants, and in doing so, drew the following conclusions: (1) the extraction team used reasonable force to remove Parker; (2) the record did not show that the extraction team beat Parker, (3) putting Parker in a control cell was reasonable given his prior conduct and prison violations, (4) the medical records showed Parker had been evaluated repeatedly for his condition, and (5) Eleventh Amendment immunity barred Parker's claims against Defendants in their official capacities.

On review, the United States Court of Appeals for the Fourth Circuit affirmed the grant of summary judgment on Parker's cruel and unusual punishment claim, as well as his deliberate indifference claim. However, the court vacated and remanded Parker's excessive force claim, finding significant error by the magistrate judge.

First, the court held there were several errors in the magistrate judge's report with regard to Parker's excessive force claim. The court highlighted that the magistrate judge used a standard that incorrectly considered "the extent of the injury inflicted." The court explained there was no "significant injury" threshold to be met in the instant case. Even where there is only a minor injury, an excessive force claim may proceed if there is a showing of malicious and sadistic use of force. As a result, the court vacated and remanded Parker's claim for further consideration.

On remand, the lower court should consider (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) any efforts made to temper the severity of a forceful response. The court went on to emphasize that the extent of Parker's injury is just one, rather than the sole factor, to consider in analyzing his excessive force claim. The court additionally stressed that the district court should view the facts and inferences from the record in the light most favorable to Parker, as he is the non-moving party.

To read the full opinion, click here.

Panel: Judges Agee, Diaz, and Davis

Argument Date: 08/31/2015

Date of Issued Opinion: 09/23/2015

Docket Number: Case No. 15-6613

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

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: Rodney Parker, PRO SE, for Appellant. Drew Hamilton Butler, RICHARDSON PLOWDEN & ROBINSON, P.A., Charleston, South Carolina, for Appellees. Carmen Vaughn Ganjehsani, RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina, for Appellees. Caleb Martin Riser, RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina, for Appellees.

Author of Opinion:
Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/07/2015 09:41 AM     4th Circuit     Comments (0)  

October 6, 2015
  United States v. Ductan -- Fourth Circuit
Headline: The Ductan Rule: Counsel, Whether You Want It or Not?

Issue Presented: Whether the district court violated the applicant's Sixth Amendment right to counsel when it (1) required him to proceed pro se after finding he forfeited his right to counsel, and (2) subsequently removed him from the courtroom and chose a jury in his absence.

Brief Summary: In April 2004, a confidential informant told the Charlotte Police ("CMPD") that Phillip Ductan had offered to sell him 100 pounds of marijuana. CMPD set up a controlled buy at a Cracker Barrel in Charlotte. On the day of the controlled buy, as CMPD officers approached the vehicle, Ductan threw his firearm on the ground and attempted to flee. In September 2004, a federal grand jury indicted Ductan on 3 counts: (1) conspiracy to possess with intent to distribute marijuana (in violation of 21 USC §846); (2) possession with intent to distribute marijuana and aiding and abetting the same (21 USC §§ 841 and 18 USC § 2); and (3) carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 USC § 924(c)(1)).

Ductan initially obtained private counsel to represent him on the charges, but counsel filed a motion to withdraw, citing Ductan's lack of cooperation and communication. At a hearing on counsel's motion, the magistrate judge asked Ductan whether he wished to hire a new attorney or instead wanted the court to appoint counsel. Ductan complained about the difficulties of finding counsel while incarcerated, but stated he didn't want to represent himself. When the magistrate judge pressed Ductan to choose whether to hire private counsel, have a court appointed counsel, or proceed pro se, Ductan began to make "nonsense statements," including "nonsense responses" to the judge when the judge asked Ductan if he was under the influence of drugs or alcohol. The judge explained to Ductan that "by making nonsensical statements [you're] found to have waived the right to counsel." The judge also directed the federal public defender to appoint standby counsel.

The case thereafter proceeded to trial. During voir dire, Ductan interrupted the court and kept making statements that made no sense. The magistrate judge had Ductan removed from the courtroom. Ductan was placed in a holding cell where he could watch and hear what was going on, but could not participate. Standby counsel was introduced to the jury, but not as counsel for Ductan. Standby counsel also did not move to strike jurors or otherwise participate in the jury selection process. After Ductan's conviction, the U.S. Court of Appeals for the Fourth Circuit heard the case on review.

Adopting the Ninth Circuit's reasoning in United States v. Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004), the court first found that when a district court determines a defendant has validly waived his right to counsel and fails to object to a district court's finding of forfeiture, the appellate court should review the case de novo. In its per curiam opinion, the Fourth Circuit, focused solely on whether the district court violated the applicant's Sixth Amendment right to counsel when it required him to proceed pro se after finding he forfeited his right to counsel. The court held that the magistrate judge erred in concluding that Ductan forfeited his right to counsel.

The Sixth Amendment guarantees to criminal defendants the "assistance of counsel for [their] defense." That right "cannot be waived by his conduct." Instead, for a defendant to assert his or her right to self-representation, the defendant must do so by knowingly, intelligently, and clearly and unequivocally forgoing counsel after "being made aware of the dangers and disadvantages of self-representation." In light of these rules, the Fourth Circuit instructed district courts to proceed with appointed counsel "absent an unmistakable expression by the defendant that so to proceed is contrary to his wishes."

Applying the test to Ductan, the court found that he had not clearly and unequivocally chosen to proceed as a pro se litigant and that even if he did, the district court did not warn him about the dangers and disadvantages of proceeding pro se.

In his concurring opinion, Judge Diaz wrote separately to discuss whether the district court violated the applicant's Sixth Amendment right to counsel when it subsequently removed him from the courtroom and chose a jury in his absence. While Judge Diaz determined that the magistrate judge was right in removing Ductan from the courtroom, he further determined the magistrate erred in not appointing counsel in Ductan's absence. Judge Diaz found such an appointment imperative considering the importance of voir dire. As Judge Diaz wrote, "if a pro se litigant is not in the courtroom, no critical stage of the trial may be conducted in his absence without the appointment of counsel." Agreeing with the majority that the right to counsel cannot be waived by misconduct, Judge Diaz found that a pro se litigant might lose his right to be present by misconduct, so long as the court appointed counsel in his absence. Judge Diaz found this to be lacking in Ductan's case because nothing on the record indicated that standby counsel was "representing Ductan."

To read the full opinion, click here.

Panel: Judges Motz, Shedd, and Diaz

Argument Date: 05/13/2015

Date of Issued Opinion: 09/2/2015

Docket Number: No. 14-4220

Decided: Vacated and remanded by published opinion

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

Counsel: ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Erin E. Comerford, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee

Author of Opinion: Per Curiam; Judge Diaz (concurrence)

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 10/07/2015 at 09:34 AM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/06/2015 04:50 PM     4th Circuit     Comments (0)  

  Charles Lee v. Norfolk Southern Railway Co. -- Fourth Circuit
Headline: Railroaded? The Federal Railroad Safety Act's Election of Remedies Provision

Issue Presented: Whether the Federal Railroad Safety Act's Election of Remedies Provision bars a plaintiff from seeking protection for alleged wrongful suspension under employment discrimination law and the Federal Railroad Safety Act's whistleblower protection provision for the same suspension.

Brief Summary: This case arises out of two lawsuits brought by Charles Lee against the Norfolk Southern Railway Company. Lee was employed by Norfolk Southern as a carman. As a carman, Lee was responsible for examining railcars for safety defects while in the rail yard. Lee's two lawsuits both involve Norfolk Southern suspending him for six months without pay. The company alleged that it did so because Mr. Lee drank while on duty and operated the company vehicle without authorization. Lee asserted in one lawsuit that his suspension was racially motivated and in the other that he was suspended in retaliation for refusing to violate a federal law. The District Court granted summary judgment to Norfolk Southern as to both lawsuits and the Fourth Circuit reversed.

Extended Summary: Charles Lee was formerly employed by Norfolk Southern as a carman. He brought two lawsuits against the company due to his six-month suspension without pay. He first brought an action in the Federal District Court for the District of North Carolina against Norfolk Southern under 42 U.S.C. § 1981 claiming his suspension was racially motivated. Specifically, Lee - who is African-American - alleged that his white counterparts were promoted and/or given opportunities that he was not; that his white supervisor also drank on the job but was not punished; and that his co-workers made racially charged and intimidating threats (including placing a noose in his locker). This case was dismissed by the District Court because Lee did not follow the arbitration procedure required by the collective bargaining agreement nor was Norfolk Southern Railway liable for the independent actions of its employees (pertaining to the racially-charged threats).

Shortly thereafter, Lee brought a second suit in which he alleged his suspension was in retaliation for refusing to comply with company orders not to follow a federal law. Specifically, Lee claimed that as a carman, he was required to report each instance a railcar had a safety defect. He stated that Norfolk Southern limited the amount of cars he could designate as defective, a violation of the Federal Railroad Safety Act ("FRSA"), and his refusal to comply with the caps was the reason he was suspended. He initially filed this complaint with the Occupational Safety and Health Administration ("OSHA") Board, claiming whistleblower protection violations. That complaint was dismissed by the OSHA Board and he then filed it in Federal District Court under a "kick-out" provision. He filed this suit entirely separately from the § 1981 racial discrimination claim. The Federal District Court for the District of North Carolina granted summary judgment to Norfolk Southern because a specific provision, the Election of Remedies Provision, of the FRSA barred the suit. That provision bars employees from seeking protection under this section and another provision of law for the same allegedly unlawful act. The District Court interpreted that to mean that because he sought protection under § 1981 for the allegedly unlawful suspension, the Election of Remedies Provision barred his suit under the FRSA whistleblower protection provision.

Upon review, the U.S. Court of Appeals for the Fourth Circuit endeavored to interpret the meaning of the Election of Remedies Provision to determine if the trial court was correct in its ruling. Using basic principles of statutory interpretation, the Fourth Circuit concluded that the District Court erred in granting summary judgment to Norfolk Southern. Specifically, the court agreed with Lee's assertion that the Election of Remedies Provision did not apply because being suspended due to race and being suspended as retaliation for complying with federal law constituted different unlawful acts.

This was the first time the Fourth Circuit interpreted this provision of the FRSA. Going forward, employees suspended or terminated may not be barred by the Election of Remedies Provision from bringing suits based on the same act that is rendered different due to violation of two or more federal laws. The Fourth Circuit ultimately reversed the District Court and remanded for further proceedings.

To read the full opinion, click here.

Panel: Judges Niemeyer, Diaz, and Floyd

Argument Date: 05/12/2015

Date of Issued Opinion: 09/18/2015

Docket Number: No. 14-1585

Decided: Reversed and Remanded by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: William Cox Tucker, Jr., MAPLES TUCKER & JACOBS, Birmingham, Alabama, for Appellant. John Bruce Lewis, BAKER & HOSTETLER LLP, Cleveland, Ohio, for Appellee. Donald J. Munro, JONES DAY, Washington, D.C., for Amicus Association of American Railroads. Rachel Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. ON BRIEF: Rachel S. Decker, CARRUTHERS & ROTH P.A., Greensboro, North Carolina, for Appellant. M. Daniel McGinn, Nicole A. Crawford, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina; Dustin M. Dow, BAKER & HOSTETLER LLP, Cleveland, Ohio, for Appellee. M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, William C. Lesser, Deputy Associate Solicitor, Megan E. Guenther, Counsel for Whistleblower Programs, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. Louis P. Warchot, Daniel Saphire, ASSOCIATION OF AMERICAN RAILROADS, Washington, D.C.; Ronald M. Johnson, M. Carter DeLorme, JONES DAY, Washington, D.C., for Amicus Association of American Railroads.

Author of Opinion: Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/06/2015 03:08 PM     4th Circuit     Comments (0)  

October 5, 2015
  SD3, LLC v. Black & Decker (U.S.) Inc. -- Fourth Circuit
Headline: Twombly's "Parallel Plus More" Rule Does Not Require a Heightened Standard of Review at the Motion to Dismiss Stage in Antitrust Cases

Areas of Law: Business Law, Antitrust Law

Question Presented: Whether the Twombly requirement to plead parallel conduct plus something more in a §1 Sherman antitrust conspiracy claim imposes a heightened probability standard at the motion-to-dismiss stage.

Brief Summary: This antitrust case hinges on the Fourth Circuit's reading of the 12(b)(6) motion to dismiss standard announced in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The majority found that a plaintiff need only plausibly allege parallel conduct by defendant companies in addition to specific details of conduct in furtherance of the conspiracy to survive a motion to dismiss.

The district court's decision to dismiss SawStop's group boycotting claim was vacated and remanded for further proceeding against only the companies that were specifically accused of participating in the boycott. Additionally, the district court's decision to dismiss all other defendants and all other claims was affirmed. The dissent countered that Twombly imposed a heightened plausibility standard (more akin to a probability inquiry) in antitrust cases. According to the dissent's reading of Twombly, SawStop was rightly dismissed by the district court because there was an obvious alternate explanation for means-based parallel conduct, and SawStop was unable to provide the level of detail necessary to satisfy the "plus more" requirement.

Extended Summary: In the 1990s, plaintiff-appellant SawStop's founder, Stephen Gass, created active injury mitigation technology ("AIMT") that stops and retracts the blade of a table-saw when it detects fingers. Gass and his co-inventors took their prototype to a trade show to pursue licensing agreements. SawStop attracted the interest of a number of table-saw manufacturers and soon began negotiations with four well-known companies. After negotiations fell apart, SawStop sued.

In a complaint filed in the district court, SawStop first alleged a "group boycott conspiracy." SawStop contended that the table-saw manufacturers made an agreement in October 2001 that either all of them would adopt the AIMT or none of them would in order to protect against product liability exposure. By 2002, manufacturers who were already negotiating with SawStop ended discussions for a variety of different reasons or no reason at all.

SawStop next alleged a "standard rejection conspiracy." Under this claim, SawStop argued that its failed attempts to change table-saw safety standards was due to table-saw manufacturers convincing members to vote as a block and prevent the AIMT proposal from being adopted.

Finally, SawStop alleged a "contrived standard conspiracy." Under this theory, SawStop maintained that the defendants conspired to develop safety standards that would impose unnecessary costs on SawStop and further prevent adoption of the AIMT.

Based on the above three conspiracies, SawStop filed a complaint in February 2014 in the U.S. District Court for Eastern District of Virginia against twenty-two separate table-saw manufacturer defendants, alleging violation of §1 of the Sherman Act. Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion due to SawStop's lack of direct evidence to support its claims.

Reviewing the motion to dismiss de novo, the United States Court of Appeals for the Fourth Circuit panel accepted as true all well-pled facts in the complaint and construed them in the light most favorable to SawStop. The court found that SawStop did not make a factual showing that each defendant conspired in violation of the antitrust laws. Due to SawStop's failure to specify the ways in which particular defendants were involved in each of the alleged conspiracies, the court affirmed the dismissal on all counts against seven of the twenty-two defendants. Although separately alleged, both standard-setting conspiracies failed because the facts of SawStop's complaint did not demonstrate anything other than ordinary participation in lawful standard-setting processes.

As to the group boycotting conspiracy, SawStop was required, under Twombly, to (1) show parallel action and something "more" that indicates agreement and (2) anticompetitive harm. The court held that the district court erred in using a probability-focused standard to conclude that SawStop had not provided enough evidence to support its claim. The court explained that Twombly's requirement to plead something more than parallel conduct does not impose a probability standard at the motion to dismiss stage. While the law did require the plaintiff to surmount a "plausibly suggesting" threshold at the pleading stage, that hurdle is considerably less than the "tends to rule out possibility" standard for summary judgment. Thus, by alleging that each manufacturer eventually ended negotiations (or reached the same end goal) after the secret meeting, and providing details regarding the participants of the boycott, time, place, manner of boycott, and motive to boycott - the court found that the group boycott, when construed in the light most favorably for SawStop, was plausibly alleged.

The court remanded the case, however, on the issue of anti-competitive harm because it was inadequately briefed and the district court's opinion offered no guidance.

Judge Wynn, in a concurring opinion, praised the majority for exercising judicial restraint by addressing SawStop's complaint as written instead of dismissing SawStop's case for policy reasons. Pointing to specific facts in SawStop's complaint regarding secret meetings and other details, Judge Wynn reaffirmed the plausibility of SawStop's group boycotting claim while pointing out the ways in which he believed Judge Wilkinson's reading of Twombly to be incorrect.

In his dissent, Judge Wilkinson presented his position that an ends-based approach instead of a means-based approach to finding parallel action undermines Twombly. Here, the many companies that ended negotiations with SawStop did so at different times and provided a variety of practical and legal explanations for their actions. Reading Twombly to require a heightened plausibility standard in antitrust cases, Wilkinson wrote that a plaintiff alleging a §1 violation of the Sherman Act fails to adequately plead his claim if there is an obvious, unrebutted alternative explanation for the defendant's conduct. Judge Wilkinson asserted that the majority, in his view, made mere communication the touchstone of liability in antitrust cases - creating a chilling effect amongst companies and rewarding the least marketable products with the greatest possibility of litigation success.

To read the full opinion click here.

Panel: Judges Agee, Wynn, and Wilkinson

Argument Date: 05/12/2015

Date of Issued Opinion: 09/15/2015

Docket Number: No. 14-1746

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

Case Alert Author: Nakisha Small, Univ. of Maryland Carey School of Law

Counsel: Joel Davidow, CUNEO GILBERT & LADUCA, LLP, Washington, D.C., for Appellants. James Scott Ballenger, LATHAM & WATKINS, LLP, Washington, D.C., for Appellees. ON BRIEF: Jonathan W. Cuneo, Matthew E. Miller, CUNEO GILBERT & LADUCA, LLP, Washington, D.C., for Appellants. John D. Harkrider, Richard B. Dagen, AXINN, VELTROP & HARKRIDER LLP, Washington, D.C., Bernard J. DiMuro, DIMURO GINSBERG PC, Alexandria, Virginia, for Appellees Stanley Black & Decker, Incorporated, Black & Decker (U.S.) Incorporated, and Black & Decker Corporation; Christopher S. Yates, Christopher B. Campbell, Aaron T. Chiu, LATHAM & WATKINS LLP, San Francisco, California, for Appellee Emerson Electric Company; Paul Devinsky, Stefan M. Meisner, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Appellees Hitachi Koki USA Ltd. and Hitachi Koki Co., Ltd.; Lee H. Simowitz, Elizabeth A. Scully, Katherine L. McKnight, BAKER & HOSTETLER LLP, Washington, D.C., for Appellees Makita USA Incorporated and Makita Corporation; David M. Foster, Washington, D.C., Layne E. Kruse, Eliot Fielding Turner, FULBRIGHT & JAWORSKI LLP, Houston, Texas, for Appellees Robert Bosch Tool Corporation and Robert Bosch GmbH; James G. Kress, BAKER BOTTS L.L.P., Washington, D.C., Scott W. Hansen, Steven P. Bogart, James N. Law, REINHART BOERNER VAN DEUREN S.C., Milwaukee, Wisconsin, for Appellees Milwaukee Electric Tool Corporation, One World Technologies, Incorporated, OWT Industries, Incorporated, Ryobi Technologies, Incorporated, Techtronics Industries Co., Ltd., and Techtronic Industries North America, Incorporated. Seth D. Greenstein, David D. Golden, CONSTANTINE CANNON LLP, Washington, D.C., for Amici Curiae.

Author of Opinion: Judge Agee

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/05/2015 04:17 PM     4th Circuit     Comments (0)  

  Dixon v. Foot Locker et al. -- Fourth Circuit
Headline: Hoop Dreams Broken as Pro Se Litigant Fails to Score Against Foot Locker and Nike

Areas of Law: Torts, Products Liability

Issue Presented: Whether the district court erred in denying Mr. Dixon's motions to compel discovery and in granting summary judgment in favor of Foot Locker and Nike.

Brief Summary: Carl J. Dixon bought a pair of Nike sneakers from Foot Locker believing they were suitable for playing basketball. While playing basketball in the shoes, he slipped, injuring his knee and leg. Dixon brought these actions against Nike and Foot Locker as a pro se litigant. In federal district court, Dixon's motions to compel discovery were denied and summary judgment was granted in favor of Foot Locker and Nike. The U.S. Court of Appeals for the Fourth Circuit affirmed the district court.

First, the Fourth Circuit reviewed the lower court's denial of Dixon's motions to compel. Dixon sought to depose the CEOs of Foot Locker and Nike. The Fourth Circuit, affording the district court considerable discretion in managing discovery, found it was appropriate to deny the motion to compel. Looking to Federal Rule of Civil Procedure 30(b)(6), the court found a corporation, not the opposing party, chooses the representative who will testify on its behalf at a deposition. Furthermore, the "Apex Deposition Rule" prevented Dixon from compelling the depositions of the CEOs simply as a function of their title. This Rule prevents the deposing of a high level official, like a CEO, if that official does not have any knowledge of the issue at hand. The court affirmed the denial of another motion to compel that was filed outside the discovery period without justification for its delay.

Next, the Fourth Circuit reviewed the district court's grant of summary judgment. Dixon's claims against Foot Locker and Nike were based on the premise that the shoes he bought were unsafe for playing basketball and wearing the shoes while playing basketball led to his injury. Dixon did not provide expert testimony to support his claim. Summary judgment is granted when there is no genuine dispute as to the material facts. In order to survive the summary judgment motion Dixon had to provide evidence sufficient to establish all the elements of his claim. Dixon's claim was decided under Maryland state law even though the case was in federal court on diversity jurisdiction. Maryland courts have adopted a products liability rule that requires expert testimony when knowledge of a defective product is related to scientific or professional knowledge that is beyond that of the average person. Because of this rule, Dixon needed an expert to state there was something wrong with the shoe that caused his injury. The Fourth Circuit found the district court properly granted summary judgment because Dixon failed to provide expert testimony to support his claim.

Dixon also challenged other miscellaneous claims on appeal. For example, he challenged the combining of his claims and the denial of the motion to amend his claims. The Fourth Circuit refused to consider his first argument because he had not raised the issue in district court. The Fourth Circuit also did not consider the denial of his motion to amend because Dixon had not filed a notice of appeal for this claim.

Finally, Dixon claimed he had not received Foot Locker's summary judgment motion. The court found Nike's summary judgment motion provided the notice Dixon would need to produce an expert witness. As a result, not receiving Foot Locker's summary judgment motion did not constitute reversible error.

Panel: Judges Keenan, Harris and Davis

Argument Date: 07/31/2015

Date of Issued Opinion: 09/03/2015

Docket Number: No. 15-1125

Decided: Affirmed by unpublished per curiam opinion.

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: Carl J. Dixon, Appellant Pro Se. Brian S. Goodman, Justin Akihiko Redd, KRAMON & GRAHAM, PA, Baltimore, Maryland; Paul McDermott Finamore, NILES, BARTON & WILMER, LLP, Baltimore, Maryland; Michael A. Joseph, Howard F. Strongin, STRONGIN ROTHMAN & ABRAMS LLP, New York, New York, for Appellees.

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/05/2015 04:03 PM     4th Circuit     Comments (0)  

  Naizghi v. Lynch -- Fourth Circuit
Headline: Asylum Seeker Faces Challenge Proving a House Is Not a Home: Evidence of Firm Resettlement Is a High Bar to Clear

Areas of Law: Immigration Law, Administrative Law

Issue Presented: Whether substantial evidence supported the Board of Immigration Appeals' conclusion that the asylum applicant was firmly resettled in another country before coming to the United States.

Brief Summary: The United States Court of Appeals for the Fourth Circuit affirmed the Board of Immigration Appeals' denial of Petitioner's application for asylum because it found she had firmly resettled in Italy prior to coming to the United States. The court found that substantial evidence in the record, although circumstantial, supported the Board of Immigration Appeals' decision that the Petitioner failed to rebut the government's prima facie case of her firm resettlement.

Extended Summary: Petitioner, Ghenet Debesai Naizghi, a Pentecostal Christian, fled Eritrea for Italy in 1994 after government soldiers abducted her father and brother from their family home. Upon arrival in Italy, Naizghi applied for and obtained a temporary work permit, which she renewed annually at first, then semi-annually over the course of twelve years. In 2006, Naizghi applied for Italian citizenship, but failed to include a document that she needed translated and authenticated by the Italian Embassy in Eritrea. Italy rejected Naizghi's application, although it is unclear why. Naizghi continued to reside in Italy on a temporary work permit after the government rejected her citizenship application.

In 2008, customers of a restaurant at which Naizghi worked sexually assaulted her. Naizghi sought treatment for her injuries, and the Italian government covered the cost of her treatment. Shortly thereafter, the petitioner returned to Eritrea to be with her mother with no intention to return to Italy at that time.

After being back in Eritrea for only twelve days, Naizghi was abducted by government soldiers during a prayer service in her mother's home. The soldiers held Naizghi captive and beat, starved, and sexually assaulted her for eight days. The petitioner's mother was eventually able to bribe the soldiers to secure her daughter's release. Thirteen days later, on September 8, 2008, Naizghi again fled to Italy with the intention of travelling to the United States. Naizghi secured a B-2 travel visa for seven months in February 2009, and arrived in the United States in June 2009. By the time she applied for asylum in March 2010, Naizghi had already overstayed her visa, and on April 20, 2010, Naizghi received a Notice to Appear in front of an Immigration Judge ("IJ").

Two years later, on April 30, 2012, Naizghi appeared in front of an IJ. At the hearing, she agreed she could be deported because she had overstayed her travel visa, but nevertheless requested asylum and withholding of removal. The government argued that under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. § 1158(b)(2)(A)(vi), Naizghi was barred from seeking asylum in the United States because she had firmly resettled in Italy. The IJ ultimately granted Naizghi's withholding of removal, but denied her request for asylum because she had firmly resettled in Italy before coming to the U.S. A withholding of removal prevents asylum seekers from being removed to a country where their life or freedom would be threatened based on their membership in a particular racial, ethnic, religious, political, or social group, but it does not lead to resident status. Asylum seekers with this status may be removed to another country in which they would not be persecuted. On November 25, 2013, the Board of Immigration Appeals ("BIA") wrote a separate opinion affirming the IJ's decision. Naizghi appealed.

The United States Court of Appeals for the Fourth Circuit affirmed the IJ's and BIA's decisions, finding that the government established through indirect evidence that Naizghi was firmly resettled in Italy. In reviewing the decisions, the court applied the four-step burden-shifting framework from Matter of A-G-G-, 25 I. & N. Dec. 500-03 (B.I.A.). Under the A-G-G- framework, the government must provide prima facie evidence of an undocumented person's offer of permanent citizenship in another country. If the government provides such evidence, then the burden shifts to the asylum seeker to show by a preponderance of the evidence that he or she did not receive an offer of citizenship. The IJ then examines all of the evidence to determine whether the asylum seeker has rebutted the government's evidence. If the asylum seeker successfully shows that he or she did not receive or qualify for an offer of citizenship, then the applicant is granted asylum. If not, the asylum seeker must show that he or she meets an exception to the firm resettlement law.

The Fourth Circuit found that substantial evidence supported the BIA's conclusion that Naizghi had firmly resettled in Italy. The court noted that, although direct evidence of resettlement is preferred, indirect evidence could also establish firm resettlement. In Naizghi's case, under the first step of the A-G-G- framework, the government presented her testimony that she was eligible for Italian citizenship combined with her ten-year stay, multiple temporary work permits, the ability to travel using those permits, the fact that the government paid the medical expenses related to her sexual assault, and her ability to obtain housing, which the court concluded was sufficient prima facie evidence that she was firmly resettled in Italy. Moving to the second and third steps of A-G-G-, the court found that Naizghi had presented "scant evidence that she did not receive an offer of citizenship from Italy or that she would not qualify for citizenship." The court specifically took issue with Naizghi's assertion that she could not complete the Italian citizenship process because she could have obtained the necessary document from the Italian Embassy in Eritrea when she returned there after her 2008 sexual assault.

In a brief dissent, Judge Traxler found that Naizghi had produced enough evidence to rebut the government's evidence of an Italian offer of citizenship. He concluded that Italy had not offered Naizghi citizenship because she had to return to Eritrea to obtain specific documents in order to complete the process. Judge Traxler also noted that it was "unreasonable to expect her to remain in Eritrea to obtain the required documentation" given that she was abducted, held captive, and assaulted shortly after her return to the country.

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

Panel: Judges Traxler, King, and Thacker

Argument Date: 10/30/2014

Date of Issued Opinion: 09/10/2015

Docket Number: Case Nos. 13-2511 & 14-1530

Decided:
Affirmed by unpublished opinion

Case Alert Author:
Monica Basche, Univ. of Maryland Carey School of Law

Counsel:
ARGUED: Monalisa Dugue, Geoffrey James Heeren, VALPARAISO UNIVERSITY LAW CLINIC, Valparaiso, Indiana, for Petitioner. Corey Leigh Farrell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Sara Dietrich, Cecilia Lopez, Michelle Prasad, VALPARAISO UNIVERSITY LAW CLINIC, Valparaiso, Indiana, for Petitioner. Joyce R. Branda, Acting Assistant Attorney General, Terri J. Scadron, Assistant Director, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Per curiam

Dissenting Opinion:
Judge Traxler

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 10/06/2015 at 03:25 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/05/2015 03:31 PM     4th Circuit     Comments (0)  

  In re: Revel AC Inc. - Third Circuit
Headline: Third Circuit Grants Stay Pending Appeal, Preserving IDEA's Lease Agreement in Revel's Sale of its Casino

Area of Law: Bankruptcy, Appellate Procedure

Issues Presented: Whether a putative leaseholder is entitled to a stay pending its appeal of a Bankruptcy Court order allowing Revel to sell its casino free and clear of IDEA's lease under §363(f)(4).

Brief Summary: Appellant, IDEA, appealed the district court's denial of a stay to prevent Revel AC, appellee, from selling its casino free and clear of IDEA's lease. The Third Circuit reviewed the appeal de novo as to the irreparable harm factor, instead of applying abuse of discretion because the case involved a purely legal determination. The court analyzed the appeal by balancing the four stay factors using a "sliding-scale" approach. The Third Circuit first found that IDEA would suffer irreparable harm if the stay was not granted. The court noted that the harm IDEA would suffer was greater than the speculative harm Revel would suffer if the stay was granted. Additionally, the court balanced the public interest and its analysis tilted toward Revel. Finally, the court determined that IDEA was assured to succeed on the merits because Revel had provided no factual or legal basis that it did not have a lease with IDEA. The Third Circuit reversed the district court and stayed the portion of the sale order that allowed Revel to sell the casino free and clear of IDEA's lease.

Extended Summary: Appellant, IDEA, operated a night club within the Revel AC Casino in Atlantic City. Revel AC declared bankruptcy and decided to sell the casino; however, Revel intended to sell the casino free and clear of the lease it had with IDEA. IDEA filed two declaratory actions with the Bankruptcy Court which were denied. Additionally, IDEA requested a stay pending appeal from the District Court which was also denied. IDEA appealed to the Third Circuit, and the court reviewed the appeal de novo, as to the irreparable harm factor, because the case involved a purely legal determination. The Court also found the denial of a stay to be appealable as a final order because letting the sale proceed would moot IDEA's claim entirely.

The court used a four-factor stay analysis to determine whether the District Court erred in denying the stay. The test analyzes (1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. The Third Circuit noted that if the movant does not meet the requirements of the first two factors then it is unnecessary to analyze the second two factors and the stay should be denied. If it does meet the first two factors, then the court will balance the relative harms and consider all four factors under a sliding scale approach, balancing the harms to the parties and the public and requiring a stronger showing of success on the merits where the party seeking the stay faces less harm and a lesser showing if the harm is greater.

The Third Circuit began its four-factor stay analysis with the last two factors, balancing the harms to Revel and IDEA, as well as the public interest. The Third Circuit found that IDEA would not only lose its multi-million dollar investment, but also the opportunity to operate its once profitable business. Thus, IDEA showed sufficient irreparable harm to it should a stay be denied. Revel argued on appeal that granting the stay would potentially jeopardize the entire sale of the casino to Polo North, not only substantially harming Revel, but also harming the public interest since a failure to sell would result in 4,000 jobs lost. The court found that the potential harm a stay would cause to Revel was at best speculative. Thus, the court stated that the balance of harms tilted, at least moderately, in favor of IDEA. The court next looked to balance the harms and benefits to the public interest. It compared the potential loss of 4,000 jobs in Atlantic City to the interest in properly applying the Bankruptcy Code and protecting the rights of tenants in commercial properties. Ultimately, the court found that the public interest balancing test slightly favored Revel.

After balancing all the harms, the court next looked to see if IDEA had made a strong showing of the likelihood of success on the merits. The Third Circuit only addressed one of IDEA's three arguments, whether the Bankruptcy and District Courts erred in holding that Revel met one of § 363(f)'s statutorily enumerated conditions to sell its assets free and clear. Revel denied that IDEA had a lease and argued there was a bona fide dispute under § 363(f)(4) because IDEA had filed declaratory judgment actions. The Third Circuit disagreed, finding that the mere filing of a declaratory judgment action does not create a bona fide dispute under § 363(f)(4). The court further noted that Revel did not present any factual or legal basis to deny that IDEA had a lease. Thus IDEA's success on the merits was assured which tilted the entire balancing scale ultimately in favor of granting the stay. The Third Circuit reversed the district court and stayed only the part of the sale order that allowed Revel to sell the casino free and clear of IDEA's lease.

Judge Shwartz filed a dissenting opinion.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/151253p.pdf

Panel (if known): Ambro, Shwartz, and Krause, Circuit Judges

Argument Date: February 6, 2015

Date of Issued Opinion: September 30, 2015

Docket Number: No. 15-1253

Decided: Reversed the District Court and stayed the portion of the sale order that allowed Revel to sell the casino free and clear of IDEA's lease.

Case Alert Author: Sarah Kiewlicz

Counsel: Jeffrey A. Cooper, Esquire, Jonathan I. Rabinowitz, Esquire, Barry J. Roy, Esquire, counsel for appellant IDEA; Michael Viscount, Jr., Esquire, John H. Strock, Esquire, Jason N. Zakia, Esquire, John K. Cunningham, Esquire, counsel for appellees Revel AC; Stuart J. Moskovitz, Esquire, counsel for appellee Polo North; Richard W. Riley, Esquire,
Sommer L. Ross, Esquire, counsel for appellees Wells Fargo

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/05/2015 10:41 AM     3rd Circuit     Comments (0)  

  In re: Revel AC Inc. - Third Circuit
Headline: Third Circuit Grants Stay Pending Appeal, Preserving IDEA's Lease Agreement in Revel's Sale of its Casino

Area of Law: Bankruptcy, Appellate Procedure

Issues Presented: Whether a putative leaseholder is entitled to a stay pending its appeal of a Bankruptcy Court order allowing Revel to sell its casino free and clear of IDEA's lease under §363(f)(4).

Brief Summary: Appellant, IDEA, appealed the district court's denial of a stay to prevent Revel AC, appellee, from selling its casino free and clear of IDEA's lease. The Third Circuit reviewed the appeal de novo as to the irreparable harm factor, instead of applying abuse of discretion because the case involved a purely legal determination. The court analyzed the appeal by balancing the four stay factors using a "sliding-scale" approach. The Third Circuit first found that IDEA would suffer irreparable harm if the stay was not granted. The court noted that the harm IDEA would suffer was greater than the speculative harm Revel would suffer if the stay was granted. Additionally, the court balanced the public interest and its analysis tilted toward Revel. Finally, the court determined that IDEA was assured to succeed on the merits because Revel had provided no factual or legal basis that it did not have a lease with IDEA. The Third Circuit reversed the district court and stayed the portion of the sale order that allowed Revel to sell the casino free and clear of IDEA's lease.

Extended Summary: Appellant, IDEA, operated a night club within the Revel AC Casino in Atlantic City. Revel AC declared bankruptcy and decided to sell the casino; however, Revel intended to sell the casino free and clear of the lease it had with IDEA. IDEA filed two declaratory actions with the Bankruptcy Court which were denied. Additionally, IDEA requested a stay pending appeal from the District Court which was also denied. IDEA appealed to the Third Circuit, and the court reviewed the appeal de novo, as to the irreparable harm factor, because the case involved a purely legal determination. The Court also found the denial of a stay to be appealable as a final order because letting the sale proceed would moot IDEA's claim entirely.

The court used a four-factor stay analysis to determine whether the District Court erred in denying the stay. The test analyzes (1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. The Third Circuit noted that if the movant does not meet the requirements of the first two factors then it is unnecessary to analyze the second two factors and the stay should be denied. If it does meet the first two factors, then the court will balance the relative harms and consider all four factors under a sliding scale approach, balancing the harms to the parties and the public and requiring a stronger showing of success on the merits where the party seeking the stay faces less harm and a lesser showing if the harm is greater.

The Third Circuit began its four-factor stay analysis with the last two factors, balancing the harms to Revel and IDEA, as well as the public interest. The Third Circuit found that IDEA would not only lose its multi-million dollar investment, but also the opportunity to operate its once profitable business. Thus, IDEA showed sufficient irreparable harm to it should a stay be denied. Revel argued on appeal that granting the stay would potentially jeopardize the entire sale of the casino to Polo North, not only substantially harming Revel, but also harming the public interest since a failure to sell would result in 4,000 jobs lost. The court found that the potential harm a stay would cause to Revel was at best speculative. Thus, the court stated that the balance of harms tilted, at least moderately, in favor of IDEA. The court next looked to balance the harms and benefits to the public interest. It compared the potential loss of 4,000 jobs in Atlantic City to the interest in properly applying the Bankruptcy Code and protecting the rights of tenants in commercial properties. Ultimately, the court found that the public interest balancing test slightly favored Revel.

After balancing all the harms, the court next looked to see if IDEA had made a strong showing of the likelihood of success on the merits. The Third Circuit only addressed one of IDEA's three arguments, whether the Bankruptcy and District Courts erred in holding that Revel met one of § 363(f)'s statutorily enumerated conditions to sell its assets free and clear. Revel denied that IDEA had a lease and argued there was a bona fide dispute under § 363(f)(4) because IDEA had filed declaratory judgment actions. The Third Circuit disagreed, finding that the mere filing of a declaratory judgment action does not create a bona fide dispute under § 363(f)(4). The court further noted that Revel did not present any factual or legal basis to deny that IDEA had a lease. Thus IDEA's success on the merits was assured which tilted the entire balancing scale ultimately in favor of granting the stay. The Third Circuit reversed the district court and stayed only the part of the sale order that allowed Revel to sell the casino free and clear of IDEA's lease.

Judge Shwartz filed a dissenting opinion.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/151253p.pdf

Panel (if known): Ambro, Shwartz, and Krause, Circuit Judges

Argument Date: February 6, 2015

Date of Issued Opinion: September 30, 2015

Docket Number: No. 15-1253

Decided: Reversed the District Court and stayed the portion of the sale order that allowed Revel to sell the casino free and clear of IDEA's lease.

Case Alert Author: Sarah Kiewlicz

Counsel: Jeffrey A. Cooper, Esquire, Jonathan I. Rabinowitz, Esquire, Barry J. Roy, Esquire, counsel for appellant IDEA; Michael Viscount, Jr., Esquire, John H. Strock, Esquire, Jason N. Zakia, Esquire, John K. Cunningham, Esquire, counsel for appellees Revel AC; Stuart J. Moskovitz, Esquire, counsel for appellee Polo North; Richard W. Riley, Esquire,
Sommer L. Ross, Esquire, counsel for appellees Wells Fargo

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/05/2015 10:41 AM     3rd Circuit     Comments (0)  

October 2, 2015
  Mollett v. Netflix, Inc. - Ninth Circuit
Headline: Netflix does not violate the Video Privacy Protection Act when it exposes its customers to their own 'viewing history' on a mandatory basis.

Area of Law: Video Privacy Protect Act, Cal. Civ. Code § 1799.3

Issue Presented:
Whether Netflix violates the Video Privacy Protection Act and Cal. Civ. Code § 1799.3 by permitting certain disclosures about subscribers' viewing history to third parties - specifically subscribers' family, friends, and guests.

Brief Summary:

Plaintiff brought this federal class action lawsuit against Netflix claiming that the online movie service provider violates the Video Privacy Protection Act (VPPA) and Cal. Civ. Code section 1799.3 by disclosing "personally identifiable information" to third parties by automatically displaying on a subscriber's account home page a list of "recently watched" video titles, the subscriber's queue, and lists of video titles recommended by Netflix which are visible to family members, friends, or guests of Netflix subscribers who use a subscriber's account to stream videos, or are in the presence of a subscriber when she is accessing her account through a Netflix-ready device. Netflix subscribers often share their accounts with family and friends because Netflix allows multiple devises to link up with one Netflix account. Anyone with access to that account is exposed to the 'viewing history' on the account's home page. Put another way, the shows and movies that the subscriber had previously watched automatically show up upon signing in to the account. Plaintiff claimed Netflix violates the VPPA and 1799.3 by "knowingly" and "willfully" giving out personally identifiable information" to third parties. The district court and Ninth Circuit disagreed, stating Netflix is not providing the information to the third parties but, rather, to the individual subscriber himself who gave his friends and family access to his own Netflix account.

Significance:
A Netflix subscriber is not afforded VPPA privacy protections when they let other people use their account.

Extended Summary:

Netflix provides individual customers with a personal list of recommended videos based on the past movies the individual streamed from the site. Netflix software uses the individual subscriber's past movie queue to suggest similar movies or television shows that the customer may be interested in. The Netflix display will automatically recommend a movie and say something along the lines of "we recommend Movie X because you liked Movie Y." Each subscriber has a list of 'recently watched' movies that cannot be deleted, and are open and visible to all family members and friends who use that particular subscription. (Netflix allows multiple devises access to one account so many people share their Netflix service with family and friends).

Plaintiffs claim Netflix is violating the VPPA and California Civil Code section 1799.3 by controlling the 'recently watched' movies and exposing all users (of that particular subscription) to the individual subscriber's recently watched content. Netflix moved to dismiss the case for failure to state a claim based on two theories: (1) the disclosures of personal information are made to subscribers themselves causing no injury, and (2) any disclosures made to a third party are not done knowingly as required by the VPPA, or in willful violation of the law as required by California Civil Code section 1799.3. The district court granted Netflix's 12(b)(6) motion and the Ninth Circuit panel affirmed.

The Video Privacy Protection Act ("VPPA") prohibits movie service providers such as Netflix from "knowingly disclosing personally identifiable information" about one of its consumers to third parties unless the provider received prior written consent. Under the VPPA, Netflix can, however, knowingly provide personal information to that individual consumer himself. The panel held that "the disclosure alleged by Plaintiffs is a disclosure 'to the consumer' that is permitted by the Act": "When Netflix displays a subscriber's queue, viewing history, or recommendation lists in her online account, that is a disclosure directly to the consumer. The nature of that disclosure does not change when subscribers choose to display the same content on their television screens. The subscriber's choice to do so does not trigger some new statutory duty on the part of Netflix."

California Civil Code section 1799.3 provides that "no person providing video recording sales or rental services shall disclose any personal information or the consents of any record, including sales or rental information . . . to any person, other than the individual who is the subject of the record, without the written consent of that individual.: Cal. Civ. Code § 1799.3(a). The panel held that Plaintiffs fail to plead a violation of 1799.3 for the same reason they fail to plead a successful VPPA violation.

To read full opinion, please visit:
http://www.hollywoodreporter.c...tflix%20appellate.pdf
Panel: Richard C. Tallman and Johnnie B Raylingson, Circuit Judges, and Raymond J. Dearie, Senior District Judge

Argument Date: February 6, 2015

Date of Issued Opinion: July 31, 2015
Docket Number: 12-17045
Decided: Affirmed the district court in granting Netflix's 12(b)(6) motion
Case Alert Author: Brian D. Shapiro
Counsel:
Rachele R. Rickert (argued), Francis M. Gregorek, Betsy C. Manifold, and Marisa C. Livesay, Wolf Haldenstein Adler Freeman & Herz LLC, San Diego, California; Mary Jane Fait and Theodore B. Bell, Wolf Haldenstein Adler Freeman & Herz LLC, Chicago, Illinois, for Plaintiffs-Appellants.
Keith E. Eggleton (argued), Rodney G. Strickland, Jr., Brian M. Willen, and Jessica L. Snorgrass, Wilson Sonsini Goodrich & Rosati, Palo Alto, California, for Defendant- Appellee.
Author of Majority Opinion: Judge Dearie
Circuit: Ninth Circuit
Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/02/2015 07:08 PM     9th Circuit     Comments (0)  

October 1, 2015
  United States v. Alvarado -- Fourth Circuit
Headline: Additional Deterrence Not Required: Supervised Release for Non-U.S. Citizen Facing Post-Incarceration Removal Only Warranted Where Additional Deterrence Needed.

Areas of Law: Immigration Law, Criminal Law

Issue Presented: Whether the district court's sentence of three years supervised release following Alvarado's 41-month prison sentence is procedurally and substantively reasonable.

Brief Summary: In a per curiam opinion, the United States Court of Appeals for the Fourth Circuit ("the court") found the district court did not give proper consideration to Jose Adolfo Benitez Alvarado's specific circumstances before sentencing him to a term of imprisonment and supervised release. Alvarado pled guilty to illegal reentry into the United States and was sentenced to three years of supervised release following his 41-month prison sentence. The Fourth Circuit vacated the three-year term of supervised release and remanded for resentencing. In reaching its decision, the court adopted the 3-part test from United States v. Aplicano-Oyuela, _F.3d_, 2015 WL 4081258 (4th Cir. July 7, 2015), which had previously been established by the Second Circuit in United States v. Alvarado, 720 F.3d 153, 155 (2d Cir. 2013).

Extended Summary: Jose Alvarado is a native and citizen of El Salvador who was residing illegally in the U.S. In 2002, following a robbery conviction, Alvarado was deported. Alvarado returned to the United States and was removed again in 2011. Most recently, in 2013, Alvarado was arrested for and convicted of reckless endangerment. Because the 2002 order of removal had never been rescinded, Alvarado also pled guilty to illegal reentry into the United States.

Prior to sentencing, the district court told Alvarado he could receive a sentence that included a period of supervised release. Supervised release is a post-incarceration condition. If a person reenters the country while on supervised release, the court can immediately return the person to prison without starting a separate prosecution. Supervised release is generally imposed when a sentencing court believes additional deterrence is needed to prevent an individual from returning to the country illegally. At sentencing, the government requested 52 months and Alvarado asked for 27-33 months. He was ultimately sentenced to 41 months imprisonment followed by three years of supervised release. Alvarado did not object to the term of supervised release at the time of sentencing. However, he later appealed the supervised release portion of his sentence, on the
basis that it was procedurally and substantively unreasonable.

The United States Court of Appeals for the Fourth Circuit first found that Alvarado failed to raise this issue during sentencing, and as a result, did not preserve the issue. The court nonetheless agreed to use plain error review to assess his claim. Plain error review, as applied in this case, is a three-part test under which the appellant is tasked with establishing there is a sentencing error, that was plain, and that affected his substantial rights. If the appellant satisfies these elements, the court has the discretion to cure the error but will not do so unless the error "seriously affects the fairness, integrity or public reputation of judicial proceedings."

Turning to the facts before it, the court explained that its review for procedural reasonableness of the imposition of supervised release for an illegal reentry case includes: whether the district court is aware of the sentencing guidelines; whether the district court considered the defendant's specific circumstances and the section 3553(a) factors (including the nature and circumstances of the offense; the defendant's history and characteristics; the need to deter criminal conduct; the need to protect the community and policy reasons); and the need for additional deterrence. The court adopted this test recently in United States v. Aplicano-Oyuela, _F.3d_, 2015 WL 4081258 (4th Cir. July 7, 2015). In Aplicano, similar to the case at hand, the appellant illegally reentered the United States, was sentenced to supervised release following his incarceration and appealed his supervised release. The court affirmed Aplicano's supervised release, explaining that his propensity to reenter the United States illegally and commit further crime was so great that he needed additional deterrence.

In the case at hand, however, the outcome was very different because the lower court failed to justify the need for additional deterrence to prevent Alvarado from illegally reentering the United States. During sentencing, Alvarado explained that the only reason he returned to the United States was because his family had been here. Alvarado went on to state that his family had since moved back to El Salvador and as a result, he had no reason to come back to the United States. The lower court failed to take these circumstances into account, and as a result, the Fourth Circuit held that sentencing Alvarado to supervised release was plain error that substantially affected his rights. The court therefore vacated and remanded the supervised release portion of his sentence.

To read the full opinion, click here.

Panel: Judges Thacker, Harris, and Davis

Argument Date: 07/23/2015

Date of Issued Opinion: 08/27/2015

Docket Number: Case No. 14-4784

Decided: Vacated in part and remanded by unpublished per curiam opinion

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: James Wyda, FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Meghan Skelton, FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, UNITED STATES ATTORNEY, Baltimore Maryland, for Appellee. Zachary A. Myers, ASSISTANT UNITED STATES ATTORNEY, Baltimore Maryland, for Appellee.

Author of Opinion: Per curiam

Dissenting Opinion: None

Case Alert Circuit Supervisor:
Professor Renée Hutchins

Edited: 10/05/2015 at 03:33 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/01/2015 02:05 PM     4th Circuit     Comments (0)  

  National Parks Conservation Association v. Environmental Protection Agency - Third Circuit
Headline: EPA Failed to Explain How It Reached Conclusions Regarding Pennsylvania's SIP Where Pennsylvania's SIP Was Flawed in Several Respects

Area of Law: Environmental law

Issue Presented: Under the Clean Air Act, should the EPA disapprove of a State Implementation Plan where it failed to identify all available retrofit control technologies, improperly concluded what the baseline level for certain emissions should be, used an improper metric in calculating the cost-effectiveness of additional pollution controls, and underestimated the visibility impact of each source of pollution by not considering the cumulative visibility impact?

Brief Summary: Pennsylvania submitted its regional haze State Implementation Plan ("SIP") to the United States Environmental Protection Agency ("EPA") pursuant to the Clean Air Act in December 2010. On July 13, 2012, the EPA finalized its limited approval of Pennsylvania's SIP after promulgating a Federal Implementation Plan ("FIP") for multiple states, including Pennsylvania, and replacing the "cap and trade" program with the Cross-State Air Pollution Rule ("Transportation Rule"). The Court found that the EPA failed to explain how it reached many of its conclusions regarding Pennsylvania's SIP, which itself failed to explain many of its conclusions. However, the Court agreed with Pennsylvania's alternative pollution control limits and evaluation of the cost-effectiveness of the pollution controls that were available for each BART-eligible source in its SIP.

Extended Summary: In December 2010, Pennsylvania submitted its regional haze State Implementation Plan ("SIP") to the United States Environmental Protection Agency ("EPA") pursuant to the Clean Air Act. The Clean Air Act aims to repair and prevent impairment of visibility in Class I areas, such as certain national parks and wilderness areas. Pennsylvania elected to treat thirty-four pollution sources as sources that are eligible for an emission limitation based on the degree of reduction that can be achieved through the best available retrofit technology ("BART"). These sources were BART-eligible. Pennsylvania also chose to follow the better-than-BART approach with respect to the eight fossil fuel electric generating stations that have a capacity of 750 megawatts or more because these stations participated in the "cap and trade" program, which Pennsylvania reasoned was better than BART at reducing emissions.

Pennsylvania could identify BART-eligible sources in its SIP in compliance with the Clean Air Act and the Regional Haze Rule. After Pennsylvania's SIP determined which sources were BART-eligible, it needed to determine which of these sources were subject to BART. A source was subject to BART if it emitted any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area. If a source was subject to BART, Pennsylvania must have weighed five factors to determine the appropriate emission limitations. The EPA issued BART Guidelines to help states determine BART-eligible sources and the appropriate emission limitations. Use of the Guidelines was required for any fossil-fueled power plant with a total electricity generating capacity of 750 megawatts or more and advisory for smaller sources.

Furthermore, Pennsylvania could implement another program if it demonstrated that the other program was better-than-BART at reducing emissions. However, whichever approach Pennsylvania chose, it was required to submit a SIP to the EPA. The EPA was then obligated to determine whether the SIP met the requirements of the Clean Air Act. If Pennsylvania's SIP was insufficient, the EPA needed to enact its own Federal Implementation Plan ("FIP").

The EPA approved of Pennsylvania's SIP to the extent its BART analysis was compliant with the Clean Air Act and the regional haze regulations and disapproved of Pennsylvania's SIP to the extent that it relied on the "cap and trade" program. On June 7, 2012, the EPA promulgated an FIP for multiple states including Pennsylvania that replaced the "cap and trade" program with the Cross-State Air Pollution Rule ("Transportation Rule"). On July 13, 2012, the EPA finalized its limited approval of Pennsylvania's SIP. The EPA upheld its final rule on April 30, 2014 (the "Final Rule") after being challenged by the National Parks Conservation Association, Sierra Club, and Clean Air Council (collectively the "Conservation Groups").

The Conservation Groups sought the Court's review of the EPA's Final Rule on the basis that the EPA arbitrarily and capriciously approved Pennsylvania's SIP.

First, the Conservation Groups argued that the EPA should not have allowed Pennsylvania to rely on the Transport Rule for the sources with an electricity generating capacity of 750 megawatts or more in lieu of conducting a source-specific BART analysis. However, the Conservation Groups were attempting to use this appeal from the administrative proceedings that lead to the Final Rule under review to challenge decisions that the EPA reached in separate proceedings; the merits of the Transport Rule and Pennsylvania's reliance on it were addressed in the rule the EPA issued to many states prior to the Final Rule under review here. The Conservation Groups could not take this approach, and even if they could, the Clean Air Act mandates that the proper court to hear this sort of challenge would be the United States Court of Appeals for the District of Columbia Circuit.

Next, the Conservation Groups argued that Pennsylvania's source-specific BART analysis failed to comply with the Guidelines in many respects. By approving Pennsylvania's SIP despite these deficiencies, the EPA violated the Clean Air Act. In response to several of the Conservation Groups' arguments, the Court found that the EPA failed to explain how it reached many of its conclusions regarding Pennsylvania's SIP, and Pennsylvania's SIP itself failed to explain many of its conclusions. The Conservation Groups' arguments with which the Court agreed focused on the SIP's failure to identify all available retrofit control technologies, Pennsylvania's improper conclusion of what the baseline level for certain emissions should be, Pennsylvania's improper metric used in calculating the cost-effectiveness of additional pollution controls, and Pennsylvania's underestimated visibility impact of each source of pollution.

The Court found that Pennsylvania's SIP failed to identify or describe all the upgrades considered for BART-eligible sources or explain why these controls were rejected, thus the SIP failed to identify all available retrofit control technologies. The EPA also failed to explain how it evaluated Pennsylvania's analysis with so little information provided in the SIP.

The Court agreed that Pennsylvania improperly concluded what the baseline level for certain emissions should be because Pennsylvania did not express a reason for selecting the emission limit that it did. Further, the EPA arbitrarily approved Pennsylvania's BART analysis. The EPA argued that its approval of Pennsylvania's SIP was harmless error, but the EPA failed to justify its position in light of its obligation to disapprove of a SIP that does not comply with the Clean Air Act.
The Court also agreed that Pennsylvania used an improper metric to calculate the cost-effectiveness of additional pollution controls. The EPA concluded in its Final Rule that Pennsylvania's chosen metric was flawed but did not provide any meaningful explanation as to why the EPA ignored these flaws, which it conceded were present.

Lastly, the Court found that Pennsylvania underestimated the visibility impact of each source of pollution. Namely, Pennsylvania did not consider the cumulative visibility impact where its source-specific BART analysis required it to calculate the visibility improvement that could be achieved through the implementation of additional pollution controls. The EPA failed to articulate a satisfactory explanation for its decision to approve Pennsylvania's SIP despite the recognized flaws in its BART analysis and cost-effectiveness calculations.

However, the Court agreed with the EPA's arguments regarding alternative pollution control limits and Pennsylvania's evaluation of the cost-effectiveness of the pollution controls available for each BART-eligible source.

With regard to the issue of alternative pollution control limits, the Court found that the Guidelines did not require states to consider exact emission limits determined to be the best available control technology ("BACT") or lowest achievable emission rate ("LAER") but to consider the technologies used to achieve BACT and LAER. Furthermore, the Guidelines created a presumption that if a state relied on the maximum achievable control technology ("MACT"), its SIP satisfied the BART. However, the Guidelines did not require a state to rely on the MACT.

The Court also agreed that Pennsylvania's evaluation of the cost-effectiveness of the pollution controls available for each BART-eligible source was proper because nothing in the Clean Air Act required Pennsylvania to set a fixed threshold of cost-effectiveness.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/143147p.pdf

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

Date of Argument: April 14, 2015

Date of Issued Opinion: September 29, 2015

Docket Number: No. 14-3147

Decided: 2014 Final Rule vacated to the extent it approved Pennsylvania's source-specific BART analysis and remanded to the EPA for further proceedings.

Case Alert Author: Sarah Adams

Counsel: David S. Baron, Esq., Charles McPhedran, Esq., counsel for Petitioners; Kate R. Bowers, Esq., Regina McCarthy, Esq., counsel for Respondent; Robert A. Reiley, Esq., Kristen M. Furlan, Esq., counsel for Intervenor Pennsylvania Department of Environmental Protection; Chet M. Thompson, Esq., Kristen L. Nathanson, Esq., counsel for Intervenor Homer City Generation LP.

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/01/2015 10:37 AM     3rd Circuit     Comments (0)  

  Goldman, Sachs & Co. v. Athena Venture Partners, L.P. - Third Circuit
Headline: Third Circuit Adopts Constructive Knowledge Standard for Waiver in the Arbitration Context

Area of Law: Arbitration, Waiver

Issue Presented: In the arbitration context, does a party waive a claim based on the conduct of an arbitrator if the party had constructive knowledge of facts indicating partiality or other misconduct of the arbitrator but failed to raise those concerns before or during the arbitration?

Brief Summary: Athena Venture Partners submitted a legal dispute with Goldman Sachs to arbitration as per a prior agreement between the parties, and two separate arbitration sessions were heard by a three-member panel. After the first session, the Financial Industry Regulatory Authority ("FINRA") disclosed that one of the panel members was charged with the unauthorized practice of law. Athena did not object to the panel member's continued participation on the panel and did not conduct further investigation on the panel member. After the panel found in favor of Goldman, Athena conducted further investigation on the panel member and found that the panel member failed to disclose additional legal issues. The Court held that Athena could not challenge the arbitration award on the grounds that the panel member's conduct and failure to disclose violated both FINRA's rules and the parties' agreement to arbitrate. Athena waived its right to challenge the award on those grounds under the constructive knowledge standard.

Extended Summary: This case concerns how waiver applies in the arbitration context. Athena Venture Partners submitted a legal dispute with Goldman Sachs to arbitration as per a prior agreement between the parties. A three-member panel of arbitrators conducted two separate arbitration hearings in November 2011 and October 2012 under Financial Industry Regulatory Authority ("FINRA") rules. After the first panel session, FINRA disclosed that one of the panel members was charged with the unauthorized practice of law. Neither Goldman nor Athena objected to the panel member's continued participation on the panel, and neither Goldman nor Athena conducted further investigation on the panel member. The panel found in favor of Goldman Sachs.

After the award, Athena conducted further investigation on the panel member and found that the panel member failed to disclose additional legal issues. Athena filed a motion to vacate the arbitration award on the grounds that the panel member's conduct and failure to disclose violated both FINRA's rules and the parties' agreement to arbitrate. The District Court agreed and vacated the arbitration award, remanding the case for rehearing before a new arbitration panel. Goldman appealed.

On appeal, Goldman argued that Athena waived its right to challenge the arbitration award because Athena failed to challenge the panel member's participation on the panel until after the award. Further, Goldman argued that the District Court erred in vacating the award.

The Court adopted the constructive knowledge standard for waiver in the arbitration context and held that Athena waived its right to challenge the panel member's fitness to serve as an arbitrator. Athena waived its right to challenge the panel member's participation because it had constructive knowledge of the panel member's malfeasance.

The constructive knowledge standard requires that a complaining party either knew or should have known of facts indicating partiality or other misconduct of an arbitrator. When a party knew or should have known of facts indicating a panel member's malfeasance but chose not to spend time and money investigating the issue further, that party waives the right to challenge the arbitration decision on the ground that the arbitrator was unfit to serve. The constructive knowledge standard encourages investigation of an arbitrator's malfeasance by holding parties responsible for information they knew or should have known. The standard prevents a losing party from having a second bite at the apple and promotes the arbitration goals of efficiency and finality. Moreover, it would allow a party to challenge the award if it had no way of discovering the panel member's malfeasance beforehand.

Here, Athena had constructive knowledge of the panel member's additional legal issues because the initial disclosure did or should have provoked alarm. Athena should have investigated the panel member's background further while the arbitration was ongoing. If Athena had investigated the panel member's background further once the initial disclosure was made, it likely would have discovered the panel member's additional legal issues.

As the Court found that Athena waived its right to seek vacatur of the award, it did not reach consideration of Goldman's second argument.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133461p.pdf

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

Date of Argument: October 21, 2014

Date of Issued Opinion: September 29, 2015

Docket Number: No. 13-3461

Decided: District Court's order vacating the arbitration award is reversed and Goldman's motion to confirm the arbitration award remanded for further proceedings.

Case Alert Author: Sarah Adams

Counsel: Kathryn E. Deal, Esq., Edward M. Posner, Esq., counsel for Appellants; David R. Moffit, Esq., counsel for Appellee.

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/01/2015 09:55 AM     3rd Circuit     Comments (0)  

September 29, 2015
  Expressions Hair Design v. Schneiderman - Second Circuit
Headline: Second Circuit Holds New York's Consumer Protection Statute Prohibiting Merchants from Charging Credit-Card Surcharge Does Not Violate the First Or Fourteenth Amendments

Area of Law: Business; Consumer Protection

Issue(s) Presented: Whether New York's consumer protection statute that prohibits imposing a credit-card surcharge on consumers violates the First Amendment and is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.

Brief Summary: Five New York businesses ("Plaintiffs") challenged New York's General Business Law § 518 ("Section 518"), which prohibits sellers from imposing a credit-card surcharge over the regular product purchase price, as unconstitutional, and sought a permanent injunction enjoining New York State from enforcing the law against them. Plaintiffs argued the law is an impermissible content-based free speech restriction in violation of the First Amendment and is impermissibly vague, and therefore void, under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

The United States District Court for the Southern District of New York agreed, declaring Section 518 unconstitutional and enjoining New York from enforcing it against the Plaintiffs. The United States Court of Appeals for the Second Circuit reversed and remanded the district court's decision, holding that Section 518 regulates prices, not speech, and has a core meaning that can reasonably be understood and applied.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...758de/1/hilite/


Extended Summary: New York State enacted General Business Law § 518 ("Section 518") in 1984 to prohibit businesses from collecting surcharges from customers who purchase goods or services with credit cards instead of cash, check or other alternative payment. New York's enactment of Section 518 was motivated by the expiration of an almost identical federal law. While prohibiting a credit card "surcharge," both the federal law, by its express statutory language, and New York State law, in its summary, permit sellers to offer a "discount" to customers paying in cash. Unlike the expired federal law, Section 518 does not incorporate explicit definitions of "surcharge," "discount," and "regular price."

Five New York businesses, Expressions Hair Design, The Brooklyn Farmacy & Soda Fountain, Inc., Bunda Starr Corp., Five Points Academy, and Patio.Com LLC, along with their owners and officers (collectively the "Plaintiffs"), sued the Attorney General of the State of New York and the District Attorneys of New York County and Kings County (collectively "New York") in the United States District Court for the Southern District of New York, claiming that Section 518 violates the First Amendment's Free Speech Clause and is void for vagueness under the Fourteenth Amendment's Due Process Clause. The district court agreed and entered a judgment declaring Section 518 unconstitutional and permanently enjoining New York from enforcing the law against Plaintiffs. The Defendants appealed. The United States Court of Appeals for the Second Circuit reversed, holding Section 518 does not violate either the First Amendment or Fourteenth Amendment of the United States Constitution.

At the time of suit, only one Plaintiff charged different amounts for credit and cash. That Plaintiff alleged its speech was impermissibly burdened because describing the pricing difference as a "surcharge" or telling customers they would be "charged more" for credit might violate Section 518. The remaining Plaintiffs contended the statute impermissibly restricted their ability to post a single price for goods and services and charge "a surcharge" to credit‐card customers, rather than offering a "discount" to those paying cash. They also contended the statute was impermissibly vague because its applicability depends upon the particular language a seller uses to describe its pricing.

In reversing the district court's finding that the statute violated the First Amendment, the Second Circuit found that Section 518 is a restriction not on speech, but merely on pricing. Citing extensive Supreme Court precedent, the court found it well-established that regulations of economic conduct, including price controls and other price regulations, do not implicate the First Amendment. The Court stated that Plaintiffs mistakenly sought to equate the restriction on the actual imposition of a credit card surcharge with a restriction on the words of the English language used to describe the pricing scheme. It further noted that not only have price-control laws have never been linked to the First Amendment, but prices, although inherently communicated through language, are not considered speech.

The Court also concluded that the district court erred in holding Section 518 unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. Relying on Supreme Court cases emphasizing that a law is facially unconstitutional only if it is impermissibly vague in all of its applications, the Second Circuit found that Section 518 is constitutional because it has a core meaning that can reasonably understood as applying to sellers who post a single price for goods and services. The Court expressed confidence that sellers of ordinary intelligence could readily understand how to avoid imposing a credit card surcharge, and that New York authorities have sufficient guidance in determining whether sellers are in violation of the law.

Accordingly, the Second Circuit concluded that Section 518 violates neither the First nor the Fourteenth Amendments, and vacated the judgment of the district court and remanded for dismissal of Plaintiffs' claims.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...5590f0758de/1/hilite/

Panel: Circuit Judges Wesley, Livingston, and Carney

Argument Date: 3/5/2015

Date of Issued Opinion: 9/29/2015

Docket Number: 13-4533(L)

Decided: Vacated and Remanded

Case Alert Author: Brad Landau

Counsel: Deepak Gupta, Gupta Beck PLLC, Washington, DC (Gary Friedman, Friedman Law Group, LLP, New York, NY, on the brief), for Plaintiffs‐Appellees; Judith Vale, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, on the brief), for Defendant‐Appellant Eric T. Schneiderman, in his official capacity as Attorney General of the State of New York; Larry A. Sonnenschein, Ronald E. Sternberg, for Zachary W. Carter, Corporation Counsel of the City of New York, for Defendants‐Appellants Cyrus R. Vance, Jr., in his official capacity as District Attorney of New York County, and Charles J. Hynes, in his official capacity as District Attorney of Kings County; Linda P. Nussbaum, Grant & Eisenhofer, P.A., New York, NY, for Amici Curiae The Kroger Company, Safeway Inc., Walgreen Co., Food Lion, LLC, Hy‐Vee Inc., H.E. Butt Grocery Co., The Great Atlantic & Pacific Tea Co., Inc., Albertson's LLC, and Rite Aid Corp., in support of Plaintiffs‐Appellees; J. Douglas Richards, Cohen Milstein Sellers & Toll PLLC, New York, NY, for Amici Curiae Consumer Action, National Association of Consumer Advocates, National Consumers League, and U.S. Public Interest Research Group, in support of Plaintiffs‐Appellees; Henry C. Meier, Associate General Counsel, for Amicus Curiae Credit Union Association of New York in support of Defendants‐Appellants.

Author of Opinion: Judge Livingston

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz.

    Posted By: Elyse Moskowitz @ 09/29/2015 07:52 PM     2nd Circuit     Comments (0)  

September 28, 2015
  United States v. Naughton a.k.a. Jerms Black -- Fourth Circuit
Headline: When "Keeping It Real" Goes Wrong: Fourth Circuit Upholds Warrantless Search of Aspiring Rap Artist's Apartment Because Officers Reasonably Believed Apartment Was Abandoned

Areas of Law: Criminal Law; Criminal Procedure; Search and Seizure; Sentencing

Issues Presented: (1) Whether the district court erred in upholding a warrantless search of an apparently vacant apartment after the landlord told police officers it was abandoned and other factors indicated to police officers that the occupant had abandoned the apartment; (2) whether the district court erred in instructing the jury that conspiracy to commit sex trafficking qualifies as a crime of violence.

Brief Summary: In a unanimous decision, the United States Court of Appeals for the Fourth Circuit found that a warrantless search may take place when the attendant circumstances lead police officers to believe a leased apartment has been abandoned, despite the fact that tenancy had not formally expired at the time of the search. The court also found that a prior search violated the Fourth Amendment, but did not justify reversal because the error was harmless beyond a reasonable doubt. Finally, the court found that conspiracy to commit sex trafficking is not categorically a crime of violence, therefore, conspiracy to commit sex trafficking cannot be the predicate crime for a 18 U.S.C. § 924(c) conviction.

Extended Summary: In September 2010, police responded to a New York apartment based upon an anonymous 911 call stating that a woman was being held against her will by a man with a firearm. After not receiving an answer by knocking on the door, several officers climbed the fire escape to enter the apartment through a window. The officers did not find anyone in the apartment, but they seized a handgun that was in plain view. It was later established that the searched apartment was leased by Mr. Naughton. Hereinafter, this search will be referred to as the "September search."

Nine months later, on June 2, 2011, two Assistant United States Attorneys from Maryland, a detective from the Montgomery County (Maryland) Police Department, and a detective from the New York City Police Department went to the same apartment to obtain a photograph of the building as part of an investigation. The exterior door was locked, but after ringing several buzzers a woman dressed in a bathrobe answered. She identified herself as the landlord. The officers did not ask the woman to verify that she owned the building.

After further questioning, the woman informed the officers that the apartment was vacant, that Mr. Naughton had been evicted, that he had not returned to the apartment for a couple of weeks, that the locks had been changed, and that a cleaning service was scheduled to clean the apartment the next day. The woman did not have the new keys to open the locked door. She unsuccessfully attempted to obtain them from her sister and co-landlord.

Although the apartment door was locked, two officers climbed the fire escape and entered the apartment through a window at the landlord's suggestion. They observed that the apartment was dirty and in disarray. The officers seized numerous items including condoms and women's clothing. Hereinafter, this search will be referred to as the "June search."

After further investigation, Mr. Naughton was indicted on various sex trafficking charges. He was also charged with brandishing a firearm in furtherance of a crime of violence. Before trial, the United States District Court for the District of Maryland denied Mr. Naughton's motion to suppress the firearm and ammunition seized during the September search, and the items seized during the June search. A jury convicted Mr. Naughton of most of the charges, and the district court sentenced him to 36 years' incarceration, including an 84-month consecutive sentence for brandishing a firearm in furtherance of a crime of violence. Mr. Naughton appealed to the United States Court of Appeals for the Fourth Circuit, arguing the district court erred in (1) denying his motion to suppress the gun evidence, because the warrantless searches of his home were unreasonable under the Fourth Amendment, and (2) instructing the jury that sex trafficking is a crime of violence.

Turning first to the June search, the court held that the objective evidence available to the officers at the time of the search indicated Mr. Naughton had abandoned any privacy interest in the apartment, despite the fact that his tenancy had not been formally terminated. According to the court, a warrantless search withstands Fourth Amendment scrutiny if the facts available to the responding officers indicate that the property was abandoned. The court found it immaterial that Mr. Naughton had not formally been evicted from the apartment. Instead, the court explained that the totality of the circumstances, including the landlord's presence and reliability, and the rundown condition of the apartment, made the officer's conclusion that Mr. Naughton had abandoned his tenancy reasonable. This reasonable belief permitted the officers to enter the apartment without a warrant or consent. On this basis, the court affirmed the district court's refusal to suppress evidence seized from the June search.

Next, the court examined Mr. Naughton's appeal from the district court's denial of his motion to suppress evidence obtained during the September search. The court assumed, without deciding, that this search violated Mr. Naughton's Fourth Amendment rights, but further concluded that the error was harmless beyond a reasonable doubt. The court examined the entire record and concluded that the unconstitutional search did not contribute to Naughton's convictions because of the overwhelming evidence detailing his use of firearms during the sex trafficking enterprise. Several victims of the enterprise testified that Mr. Naughton would use firearms to intimidate them. Further, the government introduced a video and numerous photographs depicting Mr. Naughton brandishing firearms, and an audio recording in which Mr. Naughton referred to his firearms in relation to his sex trafficking enterprise. In light of this evidence, the court affirmed the district court's denial of the suppression motion related to evidence seized from the September search.

Finally, the court addressed Mr. Naughton's challenge to his conviction for brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). In a straightforward application of United States v. Fuertes, No. 13-4755, the court found that the conviction could not stand because conspiracy to commit sex trafficking is not necessarily a crime of violence.

The lower court was not permitted to look at the conduct underlying Mr. Naughton's predicate conviction, but instead must look to whether the predicate offense is categorically a crime of violence. The court explained that the crime of sex trafficking can be committed by means other than physical force, and because any number of non-violent means could be employed, the offense does not involve a substantial risk that a defendant would use physical force. Therefore, the court held 1) that conspiracy to commit sex trafficking is not categorically a crime of violence, 2) that the district court committed plain error when it so convicted Mr. Naughton, and 3) that the error affected Mr. Naughton's substantial rights because he received an 84 month additional sentence, the court vacated the conviction and remanded for re-sentencing.

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

Panel: Judges King, Keenan, and Davis

Argument Date: 5/13/2015

Date of Issued Opinion: 10/2/2015

Docket Number: 13-4816

Decided: Affirmed in part, vacated in part, and remanded. Unpublished opinion.

Case Alert Author: Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Mark W. Crooks, Paul Budlow, Assistant United States Attorneys, James D. Houghton, Student Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Keenan

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 09/28/2015 02:24 PM     4th Circuit     Comments (0)  

September 27, 2015
  Cty. of Westchester v. U.S. Dep't of Hous. & Urban Dev.--Second Circuit
Headline: Second Circuit Holds that HUD's Withholding of Funds from Westchester County for 2011, 2012, and 2014 Did Not Violate Federal Law, but that HUD Must Delay Its Reallocation of the 2014 Funds Until the County Exhausts its Right of Further Review

Area of Law: Housing/Administrative

Issue Presented: Whether HUD was entitled to withhold funds from Westchester County on grounds that the county - in its analysis of impediments to fair housing - failed to adequately consider the potential exclusionary impact of its various municipalities' zoning laws.

Brief Summary: This appeal arose from a long-running conflict between Westchester County and the United States Department of Housing and Urban Development ("HUD"). The conflict began in 2006, when the Anti-Discrimination Center of Metro New York alleged that Westchester had falsely certified to HUD - in order to obtain housing grants - that it would "affirmatively further fair housing," when in fact it was failing to analyze impediments to fair housing or to develop strategies to overcome those impediments. In 2009, Westchester and HUD reached a settlement whereby, among other things, Westchester agreed to take numerous steps to promote "fair housing," including building 750 units of affordable housing over the next seven years, doing an analysis of impediments to fair housing in the county, passing a ban on "source of income" discrimination by landlords, and working with a monitor to oversee compliance. After this settlement was reached, Westchester continued to apply for HUD funds. HUD, however, has withheld these funds on grounds that Westchester did not satisfy all of these conditions. This particular appeal focused on whether HUD could reject Westchester's application on the basis of its determination that Westchester's analysis of fair housing impediments had failed to adequately consider the potential exclusionary impact of its different municipalities' zoning laws. The Second Circuit held that HUD could do so, explaining that "because exclusionary zoning can violate the FHA [Fair Housing Act], and because HUD is required to further the policies of that statute, it was reasonable for HUD to require the County" to include such an assessment in its analysis. The court further held that HUD must wait to reallocate Westchester's potential 2014 funds until Westchester exhausted its right for further review.

Extended Summary: In 2006, the Anti-Discrimination Center of Metro New York brought an action alleging that Westchester County had filed false claims from 2000-2006 in order to obtain nearly $52 million in federal housing grants. Its lawsuit claimed that although Westchester had certified that it would affirmatively further fair housing, and that it had analyzed impediments to fair housing and/or developed strategies to overcome them, the county had actually failed to do so.

In 2009, Westchester and HUD reached a settlement that obligated Westchester to pay back $30 million to the federal government, as well as to spend $30 million of the county's own money to build 750 affordable housing units over the next seven years. The settlement decree also required Westchester to provide HUD with an analysis of impediments to fair housing within 120 days, provided for a monitor to be put in place to ensure compliance, and to promote - a through county legislation - a ban on "source-of-income" discrimination (i.e., legislation making it illegal for owners to refuse to rent to a tenant because that tenant's income comes from Social Security or public assistance programs).

After 2009, Westchester continued to apply for funds from HUD, but its application was denied for several reasons. The instant appeal focused on HUD's decision to deny Westchester's application for funding on the basis of its determination that Westchester's analysis of fair housing impediments had failed to adequately consider the potential exclusionary impact of its various municipalities' zoning laws. (Westchester had concluded that there was no evidence of exclusionary zoning in any of the 31 eligible municipalities in Westchester County; by contrast, the monitor had concluded that certain municipalities had zoning that was socioeconomically exclusionary and/or had a discriminatory impact on racial and ethnic minorities.)

The United States District Court for the Southern District of New York rejected Westchester County's challenge to HUD's determination, and the Second Circuit affirmed. As the court explained, under the Administrative Procedure Act (APA), a reviewing court must uphold agency action unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Here, the court held that HUD's decision had been in accordance with the Fair Housing Act, and neither arbitrary nor capricious, given that exclusionary zoning can violate the FHA and that the monitor had produced detailed reports that refuted Westchester's contention that no municipalities had exclusionary zoning ordinances.

The Second Circuit also rejected Westchester's argument that HUD had violated two statutory provisions that prohibit HUD from requiring jurisdictions to change their zoning laws to qualify for funding. The court explained that HUD had never told Westchester that it would receive funds only if its municipalities actually changed their laws. "Instead, HUD required the County to assess and analyze whether certain zoning laws in the jurisdiction impeded fair housing and, if so, to identify a plan to overcome the effects of such impediments," the court wrote. The court described Westchester as having "reached the same boilerplate conclusion for every municipality," and that HUD had "determined that this repetitive conclusion for each municipality" was not supported by the evidence.

The court emphasized, however, that "this decision does not mean that any of Westchester County's municipalities violated the Fair Housing Act or engaged in discrimination on the basis of race. We merely conclude that HUD's decision - in the context of providing federal funds - to require the County to redo its zoning analysis and to develop strategies to overcome impediments to fair housing did not violate federal law. In short, there has been no finding, at any point, that Westchester actually engaged in housing discrimination."

Panel: Cabranes, Raggi and Wesley

Argument Date: 9/22/15

Date of Issued Opinion: 9/25/15

Docket Numbers: 13-cv-2741, 15-cv-1992

Decided: Affirmed, Temporary Injunction Vacated in Part

Case Alert Author: Gavin Michael Strube

Counsel: Robert F. Meehan, Westchester County Attorney for Plaintiff-Appellant County of Westchester and David J. Kennedy, Assistant United States Attorney for the Southern District of New York for Defendant-Appellee U.S. Dep't Hous. & Urban Dev.

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor: Emily Waldman

    Posted By: Emily Waldman @ 09/27/2015 08:51 PM     2nd Circuit     Comments (0)  

September 23, 2015
  United States of America v. Edward Ross - Third Circuit
Headline: Monetary Special Assessments at Sentencing Do Not Constitute "Custody" for Purposes of Habeas Corpus Statutes

Area of Law: Criminal Law, Habeas Corpus

Issue Presented: Can a special assessment constitute "custody" as required by habeas corpus statutes?

Brief Summary: On collateral attack, Ross argued that his trial and appellate counsel provided ineffective assistance of counsel for failing to challenge a deficient jury instruction and the sufficiency of the evidence on one of his convictions. However, the relief Ross sought was not cognizable under section 2255 because he was not claiming to be released from "custody." The $100 special assessment imposed upon him at sentencing did not constitute "custody."

Extended Summary: This case concerns the threshold requirement of 28 U.S.C. § 2255 to vacate, set aside, or correct a criminal sentence for ineffective assistance of counsel where a petitioner's trial and appellate counsel failed to challenge a deficient jury instruction and the sufficiency of the evidence on one count of conviction. Ross was convicted of several criminal charges, including possession of a machine gun in violation of 18 U.S.C. § 922(o), and sentenced to eight years' supervised release, a fine of $3,000, and eight $100 special assessments for each count of conviction. On collateral attack, Ross argued that his trial and appellate counsel provided ineffective assistance of counsel for failing to challenge a deficient jury instruction and the sufficiency of the evidence on his conviction under section 922(o).

Section 2255 provides a remedy for prisoners in custody to claim the right to be released upon certain grounds, such as where the sentence imposed violated the Constitution or laws of the United States. After noting that the Court was bound by the text of section 2255 on collateral attack, the Court held that the relief Ross sought was not cognizable under section 2255 because he was not claiming to be released from "custody."

The Court rejected Ross's argument that the $100 special assessment imposed upon him at sentencing constituted "custody." In federal habeas statutes, the term "custody" was meant to reserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. In order for a petitioner to be in "custody," the restraints on him or her must be (1) severe, (2) immediate, and (3) not shared by the public generally. Ross failed to meet the severity requirement because a $100 special assessment involved no physical restraint. Monetary penalties, without more, were not significant restraints on liberty as contemplated by the "custody" requirement in habeas corpus statutes. Here, even when a special assessment was imposed in conjunction with a wrongful conviction, Ross failed to meet the "custody" requirement of section 2255.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/134447p.pdf

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

Date of Argument: June 3, 2015

Date of Issued Opinion: September 15, 2015

Docket Number: No. 13-4447

Decided: District Court's order denying relief vacated, and District Court directed to dismiss Ross's section 2255 motion.

Case Alert Author: Sarah Adams

Counsel: Will W. Sachse, Esq., Katherine U. Davis, Esq., Ellen L. Mossman, Esq., John McClam (Law Student), counsel for Appellant; Emily McKillip, Esq., Floyd J. Miller, Esq., Robert A. Zauzmer, Esq., counsel for Appellee.

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/23/2015 03:01 PM     3rd Circuit     Comments (0)  

  J.B. v. James B. Fassnacht et al. - Third Circuit
Headline: Florence Applies to Juvenile Detainees Committed to the General Population of a Detention Center

Area of Law: Criminal Law, Juvenile Law

Issue Presented: Does Florence apply to all juveniles committed to the general population of a juvenile detention facility thus requiring all juvenile detainees to undergo a strip search?

Brief Summary: Florence applied to juveniles committed to the general population of a juvenile detention facility because the institutional security risks faced by prisons outweighed any constitutional right to privacy of juvenile detainees. The security risks to prisons were the same whether the detainee was a juvenile or an adult. The state, as de facto guardian of juvenile offenders while they were detained, had an interest in screening juvenile offenders in order to provide appropriate care for the juveniles. Furthermore, an individualized, reasonable suspicion inquiry rather than a blanket policy allowing strip searches would be unworkable. Lastly, Florence did not include an exception for juvenile detainees.

Extended Summary: This case concerns whether Florence v. Board of Chose Freeholders of County of Burlington, where the Supreme Court of the United States held that all arrestees committed to the general population of a detention center may be required to undergo a close visual inspection while undressed, applied to juvenile offenders.

As in Florence, the Court balanced a juvenile detainee's privacy interests with the risks to their wellbeing and to institutional security. The Court observed that juvenile detainees face a substantial risk of psychological damage if forced to endure a strip search, and a juvenile maintains an enhanced right to privacy. However, after balancing juvenile detainees' privacy interests against the security interests of a prison or other detention facility, the institutional security risks outweighed any constitutional right to privacy of juvenile detainees.

Florence recognized that detainees posed a risk to security in prisons, and those risks were the same whether the detainee was a juvenile or an adult. Just like an adult detainee, a juvenile detainee could carry a communicable disease, possess signs of gang membership, and attempt to smuggle contraband into the detention facility. Juvenile detainees posed significant dangers to other detainees and juvenile detention center staff. Furthermore, the state had the responsibility to act as a juvenile's de facto guardian while he or she was detained, thus the state had a responsibility to screen juvenile detainees for signs of disease, self-mutilation, or abuse in the home. Sensitive scanning devices and narcotic scanners would not adequately protect penological interests in the security and care of juveniles. Therefore, detention facilities' security interests outweighed the privacy interests of juvenile detainees.

In addressing Plaintiff's arguments, the Court found that an individualized, reasonable suspicion inquiry rather than a blanket policy allowing strip searches would be unworkable. Detention facility administration could not practicably classify inmates by their current and prior offenses prior to the intake strip search. Moreover, the Supreme Court recognized the utility of blanket policies in prison administration. A policy that allowed prison administrators to engage in an individualized inquiry of whether or not to subject a juvenile detainee to a strip search would likely be less evenhanded and increase the risk of danger to the general population.

Furthermore, Florence did not include an exception for juvenile detainees. The Supreme Court left open the possibility of exceptions, but the Court interpreted Florence to contemplate exceptions for particular factual scenarios not yet before the court rather than for juveniles as a class. The Supreme Court used broad, sweeping language when describing who will be subjected to a strip search and what constituted a jail. The only qualification the Supreme Court included in deciding Florence was that the detainee must be admitted to the general population.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/143905p.pdf

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

Date of Argument: July 9, 2015

Date of Issued Opinion: September 15, 2015

Docket Number: No. 14-3905

Decided: Reversed District Court order denying Defendants' motion for summary judgment

Case Alert Author: Sarah Adams

Counsel: Charles R. Starnes, Esq., Brian H. Leinhauser, Esq., David J. MacMain, Esq., counsel for Appellants; Kevin C. Allen, Esq., counsel for Appellees.

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/23/2015 02:57 PM     3rd Circuit     Comments (0)  

  In re: ICL HOLDING COMPANY, INC., et al.- Third Circuit
Headline: Third Circuit Holds That The Code's Creditor-Payment Hierarchy Was Not Invoked Because After Secured Lenders Buy A Company And Then Make a Subsequent Agreement With The Company's Unsecured Lenders Using Its Own Funds, Those Funds Are Not Part Of The Estate Property.

Area of Law: Bankruptcy

Issues Presented: Whether certain payments by a § 363 purchaser in connection with acquiring the debtors' assets should be distributed according to the Code's creditor-payment hierarchy and what constitutes estate property?

Brief Summary: After LifeCare experienced extreme financial loss, it was in debt amounting to $484 million. An entity formed by secured lenders offered to purchase LifeCare outright for all of its cash and assets for $320 million. The secured lenders were owed $355 million by LifeCare. LifeCare accepted the offer. A committee of unsecured lenders (the "Committee") and the United States of America objected to the sale because LifeCare would be left with no assets and would therefore receive nothing from what was owed to them. The secured lenders and the Committee reached an agreement in which the Committee would withdraw its objection in return for the secured lenders agreeing to deposit $3.5 million in trust for the benefit of the general unsecured creditors. The Government appealed in this case from the Bankruptcy Court's approval of the sale and the Settlement Agreement between the Committee and secured lenders. The Government sought to alter the both the sale and the agreement. The Third Circuit first rejected LifeCare and the Committee's claim that the Government's appeal was moot. On the merits, the Third Circuit held that because the secured lenders used their own funds to make payments to unsecured lenders, the money did not qualify as estate property. Further, the Court held that under the sale order, any money that remained in escrow went back to where it came from, which was the secured lenders' account. The Third Circuit held that it the funds were not estate property and affirmed the lower court's ruling.

Extended Summary: This case concerns an entity formed by secured lenders buying out LifeCare Holdings, Inc.'s ("LifeCare") assets in order to acquire 90 percent of the debt owed to the secured lenders, and a subsequent settlement agreement with the Committee of Unsecured Creditors (the "Committee"). LifeCare's debt was $484 million, of which $355 million was secured. The secured lenders offered to buy LifeCare outright for all of its cash and assets. The secured lenders offered to credit $320 million of the $355 million that they were owed. LifeCare agreed to this option. The secured lenders also agreed to pay the legal and accounting fees for LifeCare and the Committee, as well as LifeCare's wind-down fees.

LifeCare and its 34 subsidies filed for bankruptcy one day after entering into the Asset Purchase Agreement with the secured lenders. LifeCare received permission from the Bankruptcy Court to sell all of its assets through a Court-supervised auction under 11 U.S.C § 363(b)(1). The secured lenders were the successful bidders. The United States and the Committee objected to the asset transfer. The Committee argued that the sale would not allow LifeCare to even have the ability to pay for administrative expenses. The United States argued that the sale would result in capital-gains tax liability estimated at $24 million. The secured lenders and the Committee entered into a deal, which consisted of the Committee removing its objection and instead supporting the sale and in return the secured lenders agreed to deposit $3.5 million dollars in trust for the benefit of the general unsecured creditors. The secured lenders and the Committee entered into a Settlement Agreement.

On April 2, 2013, the Bankruptcy Court accepted the proposed sale to the secured lenders. The Bankruptcy Court addressed the Government's code based fairness objection and stated that the administrative fee monies put into escrow by the secured lenders were not estate property. Therefore the Bankruptcy Court held that those funds were not subject to distribution by LifeCare's creditors, and the Government had no claim to them. The Committee was a junior creditor and the Government was a senior creditor, thus the Government contended that the settlement allowed for the bypass of it, which violated the absolute priority rule. The lower court rejected this argument and held that the Settlement Agreement allowed the secured lenders to directly pay the Committee, and therefore was not part of LifeCare's property. Further, because it was not LifeCare's property, the absolute priority rule was not invoked. The lower court accepted the Settlement Agreement. The Government then appealed the denial of its request for a stay to the District Court. The District Court agreed with the Bankruptcy Court that the funds at issue were not property of the estate and thus not subject to the Code's distribution rules. The District Court denied the Government's stay request because the request did not meet the threshold that there was a sufficient likelihood it would succeed on the merits. The Government then appealed to the Third Circuit.

As to the merits of the Government's appeal, the Third Circuit first looked at the claim that the settlement sums should be treated as estate property because the secured lenders' payment to the Committee was an increased bid for LifeCare's assets. The Court disagreed and held that because the secured lenders used their own funds to make payments to unsecured lenders, it could not conclude that the money qualified as estate property. Further, the Court acknowledged that the sums paid by the secured lenders to the Committee did not at anytime belong to LifeCare. The Third Circuit explained that its analysis rested on whether the settlement money was given to the Committee as consideration for the assets bought at the § 363 sale. The Court concluded that those assets were not in consideration.

The Third Circuit also considered whether the fees and wind-down expenses, which make up the escrow funds, qualified as property of the estate. The Court held that through the Asset Purchase Agreement, all of the LifeCare's assets, including its cash, were purchased by the secured lenders. Thus, the Government's argument that the residual cash from the sale, such as the monies for fees and wind-down expenses, were LifeCare's property was erroneous. Under the sale order, any money that remained in escrow went back to where it came from, which was the secured lenders' account. The Third Circuit held that it could not conclude the funds were estate property. The Third Circuit noted that the Bankruptcy Code's creditor-payment hierarchy only becomes an issue when distributing estate property. Therefore, the Court held that that even if the rule applies in a § 363 context, it was not violated in this case. To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/142709p.pdf


Panel (if known): Ambro, Fuentes, and Roth, Circuit Judges

Argument Date: January 14, 2015

Date of Issued Opinion: September 14, 2015

Docket Number: No. 14-2709

Decided: Affirmed.

Case Alert Author: Trisha Stein

Counsel: Tamara W. Ashford, David A. Hubbert, Thomas J. Clark, Bethany B. Hauser, Christopher Williamson, Charles M. Oberly, III, Ellen W. Slights, Counsel for Appellant, The United States of America; and Anthony W. Clark, Kristhy M. Peguero, Felicia G. Perlman, Matthew N. Kriegel, Candice Korkis, Kenneth S. Ziman, for Appellees ICL Holding Co., Inc.,
Boise Intensive Care Hospital Inc., CareRehab Services LLC, Crescent City Hospitals LLC,
LifeCare Healthcare Holdings Inc., LifeCare HoldCo LLC, Lifecare Ambulatory Surgery Center Inc., Lifecare Holding Co. of Texas LLC, Lifecare Holdings Inc., Lifecare Hospital at Tenaya LLC, Lifecare Hospitals LLC, Lifecare Hospitals of Chester County Inc., Lifecare Hospitals of Dayton Inc., Lifecare Hospitals of Fort Worth LP, Lifecare Hospitals of Mechanicsburg LLC, Lifecare Hospitals of Milwaukee Inc., Lifecare Hospitals of Ne Orleans LLC, Lifecare Hospitals of North Carolina LLC, Lifecare Hospitals of North Texas LP, Lifecare Hospitals of Northern Nevada Inc., Lifecare Hospitals of Pittsburgh LLC, Lifecare Hospitals of San Antonio LLC, Lifecare Hospitals of Sarasota LLC, Lifecare Hospitals of south Texas Inc., Lifecare Investments LLC, Lifecare Investments 2 LLC, Lifecare Management Services LLC, ICL Holding Co., Inc.,
Boise Intensive Care Hospital Inc., CareRehab Services LLC, Crescent City Hospitals LLC, LifeCare Healthcare Holdings Inc., LifeCare HoldCo LLC, Lifecare Ambulatory Surgery Center Inc., Lifecare Holding Co. of Texas LLC, Lifecare Holdings Inc., Lifecare Hospital at Tenaya LLC, Lifecare Hospitals LLC, Lifecare Hospitals of Chester County Inc., Lifecare Hospitals of Dayton Inc., Lifecare Hospitals of Fort Worth LP, Lifecare Hospitals of Mechanicsburg LLC, Lifecare Hospitals of Milwaukee Inc., Lifecare Hospitals of Ne Orleans LLC, Lifecare Hospitals of North Carolina LLC, Lifecare Hospitals of North Texas LP, Lifecare Hospitals of Northern Nevada Inc., Lifecare Hospitals of Pittsburgh LLC, Lifecare Hospitals of San Antonio LLC, Lifecare Hospitals of Sarasota LLC, Lifecare Hospitals of south Texas Inc., Lifecare Investments LLC, Lifecare Investments 2 LLC, Lifecare Management Services LLC; and Laura D. Jones, Peter J. Keane, James E. O'Neill, Bradford J. Sandler, for Appellee Official Committee of Unsecured Creditors; and Stanley B. Tarr, Michael D. DeBaecke, Ira S. Dizengoff, Abid Quershi, Scott Alberino, Ashleigh L. Blaylock, for Appellee Steering Committee

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/23/2015 02:53 PM     3rd Circuit     Comments (0)  

  In re Chocolate Confectionary Antitrust Litigation - Third Circuit
Headline: Evidence of Canadian Antitrust Conspiracy Insufficient to Prove Existence of U.S. Antitrust Conspiracy

Area of Law: Antitrust Law

Issue Presented: Can evidence of a contemporaneous antitrust conspiracy in a foreign market prove the existence of an antitrust conspiracy in the U.S. market?

Brief Summary: Evidence of a contemporaneous antitrust conspiracy in a foreign market did not prove the existence of an antitrust conspiracy in the U.S. market because the evidence was ambiguous. Plaintiffs alleged that the Chocolate Manufacturers conspired to raise prices on chocolate candy products in 2002, 2004, and 2007 in violation of the Sherman Act. However, the Chocolate Manufacturers were participants in an oligopolist market. The Chocolate Manufacturers' interdependent decision-making could have led to higher prices under "conscious parallelism." Plaintiffs failed to create an inference of a conspiracy by showing conscious parallelism and certain "plus factors" including evidence of a Canadian conspiracy. Plaintiffs failed to prove a U.S. conspiracy with evidence of a Canadian conspiracy because they failed to show that the Canadian conspiracy evidence was relevant to or facilitated the U.S. conspiracy.

Extended Summary: This case concerns how courts should view evidence of a contemporaneous antitrust conspiracy in a foreign market when that evidence is offered to prove the existence of an antitrust conspiracy in the U.S. market. Federal law prohibits conspiracies in unreasonable restraint of trade or commerce under § 1 of the Sherman Act. Horizontal price fixing among competitors is a restraint of trade that is deemed per se unreasonable. Individual Plaintiffs and a Direct Purchaser Class (collectively "Plaintiffs") alleged that the Hersey Company, Nestle USA, Inc., and Mars, Inc. (collectively, "the Chocolate Manufacturers") conspired to raise prices on chocolate candy products in 2002, 2004, and 2007 in violation of the Sherman Act. Plaintiffs argued that this case presented a per se unreasonable restraint on trade. Thus, Plaintiffs had to show that the Chocolate Manufacturers agreed to fix prices under a common design in order to show that the Chocolate Manufacturers violated the Sherman Act.

However, the U.S. chocolate market was an oligopolistic market. The economic theory of interdependence provides that in oligopolistic markets, one firm's change in output or price will noticeably impact the market and other firms. Further, oligopolists could independently decide that the industry would be better served by higher prices and cause a rise in prices. Interdependent decision-making that leads to higher prices is "conscious parallelism" and lawful under the Sherman Act. In order to ensure that the Court punishes actual agreement rather than unilateral, independent conduct, Plaintiffs must create a reasonable inference of a conspiracy bearing in mind the nature of an oligopolist market. Thus, Plaintiffs must supplement a showing of conscious parallelism with "plus factors."

Plaintiffs failed to create an inference of a conspiracy by showing motive or actions against self-interest because the evidence Plaintiff presented was consistent with interdependence. Plaintiffs could not show that the anticompetitive price increases were the result of unlawful price-fixing rather than lawful, rational interdependence.

Plaintiffs also failed to create an inference of a conspiracy by showing traditional conspiracy evidence. First, Plaintiffs sought to prove a U.S. conspiracy with evidence of a Canadian conspiracy. Plaintiffs argued that the Court could reasonably infer a domestic conspiracy from evidence of a Canadian conspiracy because the Canadian market was a similar adjacent market, it involved the same participants, a jury should be permitted to weigh the Canadian conspiracy evidence, and the Canadian conspiracy "actuated" or facilitated the U.S. conspiracy. The Direct Purchaser Class argued that the Canadian conspiracy enhanced the plausibility of a conspiracy among the Chocolate Manufactures.

The Court held that the Canadian conspiracy evidence was ambiguous and, without more, a conspiracy in a foreign country generally did not prove a domestic conspiracy. First, Plaintiffs failed to show a link between the Canadian conspiracy and the Chocolate Manufacturers' conduct in the U.S. The people involved in the Canadian conspiracy were different from the people involved in the alleged U.S. conspiracy. The Canadian Chocolate Manufacturers were distinct legal entities operating under the laws of a different country. The circumstances surrounding the Canadian conspiracy, including the involvement of a direct purchaser and major distributor of chocolate in fixing prices, were very different from the circumstances of the alleged U.S. conspiracy. Plaintiffs' argument merely amounted to the allegation that if a conspiracy to fix prices happened in Canada, it could happen in the U.S. Plaintiffs' argument was insufficient to show a conspiracy especially when the anticompetitive price increases were consistent with lawful, rational interdependence.

Furthermore, the Court rejected the argument that the Canadian conspiracy "actuated" or facilitated the U.S. conspiracy. The actuation theory presumed that the Chocolate Manufacturers knew about the unlawful conduct in Canada, and that knowledge gave them the confidence to engage in the alleged U.S. conspiracy. Plaintiffs needed to show more than similar outcomes in Canada and the U.S. Rather, Plaintiffs needed to show that Canadian conduct actuated the U.S. conduct. In other words, the Chocolate Manufacturers needed to have known the cause of the outcomes they observed in Canada. At most, a series of emails between U.S. Hersey executives and upper management in Hershey Canada inferred that some Hershey executives in the U.S. knew about the Canadian conspiracy. However, the Canadian conspiracy could not have facilitated a U.S. conspiracy if Hershey acted unilaterally and the other two alleged conspirators were unaware of the Canadian conspiracy.

Second, Plaintiffs sought to prove a U.S. conspiracy with other traditional conspiracy evidence. Plaintiffs argued that the Chocolate Manufacturers exchanged information before fixing prices. However, Plaintiffs' argument failed because possession of competitive information did not amount to evidence of concerted action to fix prices. Plaintiffs failed to show that the source, substance, timing, and effect of the advanced pricing information inferred a concerted action to fix prices.

Plaintiffs also failed to show a reasonable inference of concerted action by arguing that the Chocolate Manufacturers had opportunities to conspire. The 2002 sale process of Hershey and improper communications between individuals of the Chocolate Manufacturers who did not have pricing authority did not create an inference of a conspiracy absent evidence of suspect meetings or conversations about pricing. Lastly, Plaintiffs failed to show that the Chocolate Manufacturers' pretextual reasons for their price increases, namely that the Chocolate Manufacturers raised prices because of raised costs, created a reasonable inference of a conspiracy. While costs increased for the Chocolate Manufacturers during the alleged conspiracy time period, Plaintiffs argued that the prices did not rise in proportion with the rise in costs. Plaintiff's argument failed. Even if their pretextual argument was stronger, it would not create a reasonable inference of a conspiracy by itself. To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/142790p.pdf

Panel (if known): Fisher, Hardiman, and Roth, Circuit Judges.

Date of Argument: April 30, 2015

Date of Issued Opinion: September 15, 2015

Docket Numbers: Nos. 14-2790 through 14-2795

Decided: Sept. 15, 2015

Case Alert Author: Sarah Adams

Counsel: Scott E. Perwin, Esq., Kenny Nachwalter, Steve D. Shadowen, Esq., counsel for Appellants in 14-2790; Moira E. Cain-Mannix, Esq., Brian C. Hill, Esq., Scott D. Livingston, Esq., Bernard D. Marcus, Esq., Joseph T. Lukens, Esq., counsel for Appellants in 14-2791; Daniel H. Gold, Esq., counsel for Appellant in 14-2792; Richard L. Coffman, Esq., David P. Germaine, Esq., Alberto Rodriguez, Esq., Joseph M. Vanek, Esq., Steve D. Shadowen, Esq., counsel for Appellants in 14-2793; Ruthanne Gordon, Esq., Michael J. Kane, Esq., H. Laddie Montague, Jr., Esq., Hilary K. Scherrer, Esq., Roberta D. Liebenberg, Esq., Adam Pessin, Esq., counsel for Appellants in 14-2794; Eric L. Bloom, Esq., counsel for Appellant in 14-2795; William F. Cavanaugh, Jr., Esq., Stephanie M. Gyetvan, Esq., Adeel A. Mangi, Esq., counsel for Appellees Hershey Co. and Hershey Canada, Inc.; Nicole L. Castle, Esq., David Marx, Esq., Stefan M. Meisner, Esq., counsel for Appellees Mars, Inc. and Mars Snackfood United States LLC; Peter E. Moll, Esq., Daniel J. Howley, Esq., Adam L. Hudes, Esq., Stephen M. Medlock, Esq., Carmine R. Zarlenga, III, Esq., counsel for Appellee Nestle USA, Inc.

Author of Opinion: Judge Fisher

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/23/2015 02:50 PM     3rd Circuit     Comments (0)  

  Knife Rights, Inc. v. Vance - Second Circuit
Headline: Second Circuit Finds Individual and Business Plaintiffs Have Standing to Seek a Declaratory Judgment that New York's Law Criminalizing the Possession of Gravity Knives is Unconstitutionally Vague, but Advocacy Organization Plaintiffs Lack Standing

Area of Law: Constitutional Law

Issue(s) Presented: Whether plaintiffs-appellants have standing to pursue a vagueness challenge to a New York law criminalizing the possession of gravity knives and to pursue injunctive relief.

Brief Summary: Plaintiffs-Appellants John Copeland, Pedro Perez, the business Native Leather, and the advocacy organizations Knife Rights and Knife Rights Foundation brought an action to the United States District Court for the Southern District of New York seeking declaratory and injunctive relief against the city of New York and New York County District Attorney Cyrus Vance, Jr., for applying the New York law criminalizing the possession of gravity knives in such a way that renders the proscription unconstitutionally vague as applied to common folding knives, thereby depriving the plaintiffs of the notice mandated by due process.

The United States District Court for the Southern District of New York dismissed plaintiffs' complaint for lack of subject matter jurisdiction, concluding that they lacked standing to pursue that challenge. The United States Court of Appeals for the Second Circuit affirmed the district court's holding that the organizations Knife Rights and Knife Rights Foundation do not have standing, but vacated and remanded the district court's holding as to Copeland, Perez, and Native Leather, finding those plaintiffs sufficiently alleged an injury in fact to satisfy standing.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...scourts.gov/decisions/ isysquery/f68a9b82-d6fd-43c9-ac50-bf1531f61e64/2/hilite/

Extended Summary: In 2010, plaintiffs-appellants John Copeland, an artist, and Pedro Perez, an art dealer, were separately charged with violations of New York Penal Law § 265.01(1), relating to the illegal possession of gravity knives. Joined by plaintiff-appellant Knife Rights, an advocacy organization which asserted certain of its members have been charged or were threatened with charged violations of § 265.01(1), Copeland and Perez initiated an action in the United States District Court for the Southern District of New York seeking a declaration that New York Penal Laws §§ 265.00(5) and 265.01(1) are unconstitutionally vague as applied to common folding knives, and an injunction preventing the defendants, New York City and New York County District Attorney Cyrus Vance, Jr. from continuing to enforce these statutes as to such knives. The defendants moved for dismissal, and plaintiffs successfully sought leave to amend, adding as plaintiffs Native Leather, a retail store that sells folding knives and had been previously charged with violations of § 265.01(1) resulting in fines and mandatory surrender of property, and a second advocacy group Knife Rights Foundation. The defendants then renewed their motion for dismissal, arguing that the court lacked subject matter jurisdiction because no plaintiff alleged an "injury in fact," which is necessary to establish Article III standing. The district court agreed and entered judgment for the defendants.

Copeland and Perez alleged that they have carried, and wish again to carry, common folding knives, but cannot do so because they cannot determine which knives the defendants will deem gravity knives prohibited by § 265.01(1), and they do not wish to risk prosecution, having already been charged with § 265.01(1) violations. The United States Court of Appeals for the Second Circuit found that, given that defendants have indicated their continued intent to prosecute under this statute, Copeland and Perez demonstrated a credible threat of imminent prosecution for intended conduct. The court reasoned that neither Copeland nor Perez should be required to pursue arguably illegal activity or exposure to criminal liability to establish standing to challenge the constitutionality of the law threatened to be enforced. Therefore, the Court found Copeland and Perez satisfied the injury in fact element of standing, and vacated the district court's judgment in favor of the defendants and remanded for further proceeding.

Likewise, the court held that Native Leather, which sells a variety of folding knives that it does not believe violates § 265.01(1), had been formerly charged under the statute, and alleged it is unable to determine which knives the defendant will deem proscribed gravity knives, also satisfied standing requirements. The court concluded that the totality of the circumstances demonstrated a credible threat of imminent prosecution if defendant Vance determined that Native Leather was again selling common folding knives he deemed proscribed gravity knives. The court again reasoned that Native Leather should not be required to expose itself to criminal liability before bringing a suit to challenge the constitutionality of the law threatened to be enforced and vacated the district court's judgment in favor of the defendants, remanding for further proceeding.

In contrast, the Second Circuit held that advocacy organization plaintiffs Knife Rights and Knife Rights Foundation lacked standing to sue on behalf of their members. Rejecting the contention that these plaintiffs met their requirements of Article III standing because they incurred expenses in opposing defendants' application of § 265.01(1), the court found that, even if these expenditures impaired the organization's activities, they at best demonstrate past injury and not injury that can be redressed through the prospective declaratory and injunctive relief sought in this action. Lacking a credible threat that they will be prosecuted, or a showing that anticipated expenditures and ensuing harm to their organizations' activities are certainly impending, the Court affirmed the district court's judgment dismissing Knife Rights and Knife Rights Foundation for lack of standing.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...scourts.gov/decisions/ isysquery/f68a9b82-d6fd-43c9-ac50-bf1531f61e64/2/hilite/

Panel: Judges Katzmann, Kearse, and Raggi

Argument (if known): 01/13/2015

Date of Issued Opinion: 09/22/2015

Docket Number: 13-48040-cv

Decided: Affirmed in Part and Vacated and Remanded in Part

Case Alert Author: Steven Manganelli

Counsel: Daniel L. Schmutter, Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, New Jersey, for Plaintiffs‐Appellants; Benjamin E. Rosenberg (Patricia J. Bailey, on the brief), Assistant District Attorneys, for Cyrus R. Vance, Jr., District Attorney of New York County, New York, New York, for Defendant‐ Appellee Cyrus R. Vance, Jr. 3 Michael J. Pastor, Senior Counsel (Kristin M. Helmers, Counsel, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York, for Defendant‐ Appellee City of New York.

Author of Opinion: Judge Raggi

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 09/23/2015 09:23 AM     2nd Circuit     Comments (0)  

September 22, 2015
  Heller v. District of Columbia - D.C. Circuit
Headline: Divided D.C. Circuit partially upholds gun registration requirements

Area of Law: Second Amendment

Issue(s) Presented: Whether the District of Columbia's firearms licensing regime violates the Second Amendment.

Brief Summary: In June 2008 the Supreme Court held the District of Columbia laws restricting the possession of firearms in one's home violated the Second Amendment right of individuals to keep and bear arms. District of Columbia v. Heller, 554 U.S. 570. In the wake of that decision, the District amended the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17-372, imposing myriad registration and licensing requirements for handguns and long guns and banning "assault weapons" and large-capacity magazines. Appellant Heller challenged those restrictions, arguing that the District of Columbia lacked the legislative authority to impose them and that the restrictions violated the Second Amendment of the Unites States Constitution. In 2011, the U.S. Court of Appeals for the District of Columbia Circuit, applying intermediate scrutiny, held that the District had the authority to promulgate the challenged gun laws and upheld the basic firearm registration scheme for handguns and the prohibitions on assault weapons and large-capacity magazines as constitutional. Heller v. Dist. of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011). The D.C. Circuit remanded the registration requirement for long guns, as well as certain conditions of the registration requirements, for consideration by the district court.

In the interim, the D.C. Council enacted the Firearms Amendment Act of 2012, D.C. Law 19-170, which repealed certain of the conditions for registration, such as the requirement that a pistol be submitted for ballistic identification as part of the registration process, and reduced the burden upon registrants imposed by other provisions. However, the amended law retained the requirements that registrants appear in person to be fingerprinted and photographed, pay certain fees, complete a firearms safety and training course or provide evidence of another form of training, and pass a test to demonstrate knowledge of D.C. firearms laws, among others, to register a firearm. Heller filed an amended complaint to take account of those legislative changes. The district court granted summary judgment to the District, and Heller again appealed.

As a preliminary matter, Heller challenged the expert reports and testimony that the District presented in support of the registration requirements, arguing that they fell short of the disclosure requirements of Fed. R. Civ. P. 26(a) and that the testimony was too unreliable to be admitted under Fed. R. Evid, 702. A divided panel of the D.C. Circuit held that the District had sufficiently disclosed the bases for the witnesses' opinions to avoid any unfair surprise, and that any concerns about the reliability of the testimony went to its weight, not its admissibility. The court also held that imposing basic registration requirements on long guns placed only a de minimis burden on registrants and did not implicate the Second Amendment.

The court concluded that the District had a substantial interest in promoting public safety and had presented sufficient evidence that some, but not all, of the registration requirements furthered that interest to survive intermediate scrutiny. The court upheld the requirement that registrants appear in person to be photographed and fingerprinted at the time of registration, the imposition of reasonable registration fees, and the requirement that all registrants take a firearms safety class, concluding that they directly and materially advanced public safety. However, the court found that the District had not produced substantial evidence showing that the requirement for registrants to bring the firearm to the Metropolitan Police Department in order to register it, re-register the firearm every three years, and pass a test on D.C. firearms law, as well as the "one-pistol-per month" rule, promoted public safety and ruled them unconstitutional.

Judge Henderson dissented in part, arguing that all the restrictions would satisfy intermediate scrutiny.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/14-7071-1573768.pdf.

Panel (if known): Henderson, Millett, Ginsburg


Argument Date (if known): April 20, 2015

Date of Issued Opinion: September 28, 2015

Docket Number: 14-7071

Decided: Affirmed in part

Case Alert Author: Ripple Weistling

Author of Opinion: Ginsburg

Dissent: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 09/22/2015 08:27 AM     DC Circuit     Comments (0)  

September 21, 2015
  United States v. Maiello-11th Circuit
Headline: Eleventh Circuit holds the district court properly applied the one-year delay to a motion for sentence reduction made pursuant to the sentencing guidelines amendment that reduced the base offense levels for most drugs infractions.

Area of Law: Sentencing

Issue: Whether the district court erred in applying the one-year delay to a motion for sentence reduction pursuant to the guidelines amendment, which reduced base offenses for most drugs infractions.

Brief Summary: Appellant, Michael Paul Maiello Jr. ("Maiello"), a prisoner sentenced before November 1, 2014, challenged the district court's application of the one-year delay to his motion for a sentence reduction. The Eleventh Circuit affirmed.

Extended Summary: After amending the sentencing guidelines to reduce the base offense levels for most drug offenses (Amendment 782), the U.S. Sentencing Commission passed Amendment 788, making Amendment 782 retroactive, but with a one-year delayed effective date as set out by USSG § 1B1.10(e).

On February 3, 2015, Maiello moved for a reduction of his sentence pursuant to Amendment 782. Maiello requested the reduction be granted without application of the one-year delay. The district court granted Maiello's sentence reduction, but declined to suspend the application of section 1B1.10(e), and set a release date of November 2, 2015. Absent the delay, Maiello would have been eligible for immediate release. In affirming, the Eleventh Circuit found: (1) the Sentencing Commission acted within its authority in passing section 1B1.10(e); (2) the Sentencing Commission's selection of November 1, 2015 as the earliest possible Amendment 782 release date was neither arbitrary nor capricious; and (3) section 1B1.10(e) does not violate the constitutional principle of separation of powers.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201510532.pdf

Panel: Martin, Rosenbaum, Circuit Judges and Proctor (United States District Judge for the Northern District of Alabama, sitting by designation)

Argument: May 14, 2015

Date of Issued Opinion: August 19, 2015

Docket Number: 15-10532

Decided: Affirmed

Case Alert Author: Evan Phoenix, Lizbell Lucero, Daniel Villavisanis, and Evelin Mac Clay

Counsel: Conrad Kahn, et al. for Appellant.
Arthur Lee Bentley, III, et al. for Appellee

Author of Opinion: Proctor, District Judge

    Posted By: Gary Kravitz @ 09/21/2015 11:18 AM     11th Circuit     Comments (0)  

September 16, 2015
  Citizens Against Casino Gambling in Erie Cty. v. Chaudhuri
Headline: Second Circuit Holds That Seneca Nation Can Run a Casino on its Buffalo, New York Property

Area of Law: Indian Affairs

Issue presented: Whether the U.S. Department of the Interior and the National Indian Gaming Commission acted arbitrarily or capriciously, abused their discretion, or acted in violation of the law in concluding that the Seneca Nation's "Buffalo Parcel" could be used a class III gambling site under the Indian Gaming Regulatory Act.

Brief Summary: In August 2002, the Seneca Nation and the State of New York executed a Nation-State Gaming Compact under which the Seneca Nation would be allowed to establish class III gaming facilities (i.e., a casino) in Buffalo on lands acquired with funds from the Seneca Nation Settlement Act ("SNSA"). Several years later, the Seneca Nation proceeded to purchase nine acres of property in Buffalo, stating that the lands were acquired for the purposes set forth in the 2002 Compact. This triggered several rounds of litigation by plaintiffs, a coalition of individuals and organizations who oppose gambling. In their most recent action, the plaintiffs brought suit in the Western District of New York, claiming that the Indian Gaming Regulatory Act forbade the Buffalo property from being used for class III gaming and that the National Indian Gaming Commission's approval of this usage had not been in accordance with federal law. The district court dismissed the plaintiff's claims, and the Second Circuit affirmed, ruling that the determination by the National Indian Gaming Commission and the Department of the Interior that the Buffalo parcel was eligible for class III gaming had not been arbitrary or capricious, an abuse of discretion, or in violation of the law.
To read the full opinion, please visit ">http://www.ca2.uscourt.../de.....1/1/hilite/


Extended Summary: The regulation of gaming by Indian tribes is governed by the Indian Gaming Regulatory Act ("IGRA"). In order for Native American tribes to conduct gaming activities, the IGRA requires that the tribe have jurisdiction over that particular land, and that the property where the gaming is conducted qualify as "Indian lands."

The Second Circuit began by analyzing whether the Seneca Nation had jurisdiction over the Buffalo parcel, focusing on whether the Buffalo property qualified as a "dependent Indian community" under the Seneca Nation's tribal jurisdiction. To be a "dependent Indian community," two elements must exist. First, the property must be set aside by the federal government for for use by a Native American tribe. Second, the land must be under continued federal superintendence.

The court found that both requirements were satisfied here. First, the court determined that the Buffalo property qualified as a federal set-aside because the property was purchased with SNSA funds. The court explained that the SNSA had limited the purchase of Indian lands with SNSA funds to areas within the Seneca's "aboriginal area in the State or situated within or near proximity to former reservation land. Second, the court found that the Buffalo Parcel was subject to federal superintendence. "Congress - through the SNSA - set aside the Buffalo Parcel for the Seneca Nation's use in order to further tribal interests and provided that the Parcel would be subject to federal superintendence," the court explained. Accordingly, "the Seneca Nation has jurisdiction over this land, and New York has therefore been divested of its jurisdiction."

Having determined that the Seneca Nation had jurisdiction over the Buffalo property, the court next analyzed whether the property qualified as "Indian lands" for purposes of the IGRA. Although the plaintiffs argued that the Department of the Interior and the National Indian Gaming Commission had erred in recognizing the parcel as "Indian lands," the Second Circuit disagreed, explaining that the Seneca Nation held sufficient title over the parcel.

Finally, the Second Circuit rejected the plaintiff's argument that a provision of the IGRA prohibited gaming on the Seneca Nation, explaining that this provision applied only to "lands acquired by the Secretary [of the Interior] in trust for the benefit of an Indian tribe," not - as here - to "lands held in restricted fee by a tribe." The court thus affirmed the district court's dismissal of the plaintiffs' complaint.

Panel: Judges Katzmann, Lohier, and Droney.

Argument: 01/16/ 2015

Date of Issued Opinion: 09/15/2015

Docket Number: 11-5171(L)

Decided: Affirmed

Case Alert Author: Brian Byrne

Counsel: CORNELIUS D. MURRAY, O'Connell and Aronowitz, for Plaintiffs. KATHERINE J. BARTON, United States Department of Justice, Environment & Natural Resources Division. Michael Hoenig, Office of General Counsel, National Indian Gaming Commission,; Andrew S. Caulum, Office of the Solicitor, United States Department of the Interior, Robert G. Dreher, Sam Hirsch, Acting Assistant Attorney General; William J. Hochul, Jr., United States Attorney for the Western District of New York; Mary E. Fleming, Assistant United States Attorney, Western District of New York,; Gina L. Allery, John L. Smeltzer, United States Department of Justice, Environment & National Resources Division, for Defendants‐ Appellees‐Cross‐Appellants.

Author of the Opinion: Judge Droney

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 09/16/2015 08:54 PM     2nd Circuit     Comments (0)  

  Orlander v. Staples, Inc. - Second Circuit
Headline: Second Circuit Finds Staples, Inc. Two-Year "Carry-In" Protection Plan Ambiguous and Potentially Misleading to Customers

Area of Law: Contracts and Business

Issue(s) Presented: Whether the district court erred in granting defendant Staples, Inc.'s motion to dismiss contract and deceptive business practice claims, based upon a finding that Staples' Protection Plan was unambiguous, any breach of the terms was immaterial, and plaintiff failed to adequately allege damages and injury under New York law.

Brief Summary: In March 2012, Andrew Orlander purchased a computer and Staple, Inc.'s ("Staples") two-year "Carry-in" Protection Plan at a Staples store. At that time, Orlander was given a Protection Plan Brochure (the "contract") and verbal assurance from a sales representative that the Protection Plan would offer better coverage than the manufacturer's warranty and that, under the Plan, Orlander would "never need to contact the manufacturer." In November 2012, Orlander brought the computer back to the Staples store with internet-connectivity issues and asked to exchange it for another computer. An employee told Orlander to contact the manufacturer directly and explained that the Protection Plan did not offer coverage until the manufacturer's warranty expired. Orlander brought a class action suit for breach of contract and violations of the consumer deception and false advertising provisions in New York's General Business Law ("NY GBL"), among other claims.

The United States District Court for the Southern District of New York granted Staples motion to dismiss the breach of contract and NY GBL claims, holding that the contract was unambiguous, that any breach of the contract by Staples was immaterial, and that Orlander failed to adequately allege damages or an actual injury under the NY GBL. The United States Court of Appeals for the Second Circuit vacated the judgment granting the motion to dismiss and remanded the case, holding that the contract was ambiguous as a matter of law, the materiality of any breach by Staples was not a basis on which to dismiss the contract claim, and that Orlander adequately alleged deceptive practices and false advertising claims and injury.

To read the full opinion, please visit: ">http://www.ca2.uscourt.../de.....4/3/hilite/


Extended Summary: Under New York law, a successful claim for breach of contract must include allegations that the parties formed a contract, the plaintiff performed his/her part of the contract, the defendant failed to perform, and the plaintiff suffered damages. If the court concludes an applicable contract term is ambiguous as applied to the allegations in a complaint, the court lacks a sufficient basis to dismiss the complaint for failure to state a claim.

It was undisputed that the parties formed a contract and that Orlander performed by purchasing the two-year "Carry-in" Protection Plan for $99.99. The second page of the Protection Plan Brochure provided to Orlander at the time of his purchase listed the terms of the plan contract. In small type after just one of the provisions, the contract stated, "Some restrictions apply. For complete details...see Terms and Conditions. The plan term is inclusive of manufacturer's warranty...and does not replace the manufacturer's warranty." The United States District Court for the Southern District of New York granted Staples motion to dismiss the breach of contract claim, holding that the contract was unambiguous in providing that the Staples Protection Plan did not offer services to a purchaser during the one-year manufacturer's warranty term, and that any breach of the contract by Staples was immaterial.

The Second Circuit disagreed, holding that Orlander's complaint adequately alleged a material breach by Staples that lead to injury and damages to Orlander. The court reasoned that the contract was ambiguous because only one provision of the contract included the note stating that restrictions applied, a reasonable person could conclude that the caveat only applied to one specific provision of the contract. The court stated further that language in the note, itself, was unclear, offering several potential interpretations, and "certainly [did] not communicate that Staples' plan gives no protection" during the warranty term. Noting that even the district court, in finding that Staples breached the contract by not referring Orlander to "the nearest service provider" for repair, interpreted the contract differently from Staples, it also went on to conclude that the district court's conclusion that any breach was immaterial should not be considered in the motion to dismiss for the failure to state a claim. Finally, on the contract claim, the Second Circuit concluded that because Orlander could potentially show Staples breached several provisions of the contract, he could be entitled to a variety of losses, in addition to his adequately plead "restitution" damages.

The Second Circuit also disagreed with the district court and held that Orlander adequately stated claims and injury under New York's General Business Law (NY GBL). NY GBL sections 349 and 350 prohibit deception of customers and false advertising by a business engaged in "trade, commerce or in furnishing any service" in New York State. A successful claim must allege that the defendant engaged in materially misleading consumer-oriented conduct and that the plaintiff suffered an injury as a result of that conduct. Finding it undisputed that Staples' sale of a Protection Plan was consumer-oriented conduct, the court held that Orlander also adequately alleged conduct that was materially misleading based upon his allegations that he was reasonably misled by the contract promise to refer purchasers to "the nearest authorized service center" and by Staples employees' representations that the contract provided complete coverage and he would never have to contact the manufacturer. The court reasoned that these representations, and the contract ambiguity as to whether coverage provided by the manufacturer's warranty might also be provided by Staples, could lead a reasonable customer to believe that Staples would provide more services, such as referral for free repair and replacement, that the company did not intend to provide.

Based upon its findings, the Second Circuit vacated the judgment by the District Court granting Staples' motion to dismiss and remanded.

To read the full opinion, please visit: ">http://www.ca2.uscourt.../de.....4/3/hilite/


Panel: Circuit Judges Leval and Pooler; District Judge Murtha, sitting by designation

Argument Date: 01/22/2015

Argument Location: New York, NY

Date of Issued Opinion: 09/16/2015

Docket Number: No. 14-2677-cv

Decided: Vacated and Remanded

Case Alert Author: Ryan Koleda

Counsel: Megan A. Farmer, Gardy & Notis, LLP, New York, N.Y., for Plaintiff-Appellant; Barry M. Kazan, Thompson Hine LLP, New York, N.Y., for Defendant-Appellee

Author of Opinion: Judge Leval

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

Edited: 09/17/2015 at 07:24 AM by Elyse Moskowitz

    Posted By: Elyse Moskowitz @ 09/16/2015 08:31 PM     2nd Circuit     Comments (0)  

  United States v. Durham-11th Circuit
Headline: The Eleventh Circuit holds an appellant may raise an issue or theory in a supplemental brief where the issue or theory is based on a separate intervening Supreme Court decision that overturns binding precedent.

Area of Law: Appellate Review

Issue: Whether the court should permit an appellant to assert a new issue in a supplemental brief where the issue is based on a separate intervening Supreme Court decision that overturned binding precedent.

Brief Summary: A prisoner filed a motion seeking to stay his appeal and to file a supplemental brief due to an intervening Supreme Court decision. The Eleventh Circuit, en banc, granted the prisoner's motion to file a supplemental brief.

Extended Summary: Appellant, Wayne Durham, was found to be an Armed Career Criminal under 18 U.S.C. § 924(e) (the "ACCA"). Durham challenged his sentence as substantively unreasonable, but failed to raise any issue involving application of the ACCA to his case. In June 2015, the Supreme Court issued Johnson v. United States, holding that the residual clause of the ACCA is unconstitutionally vague.

The Eleventh Circuit, en banc, granted Durham's motion to file a supplemental brief on the constitutionality of the ACCA's residual clause, receding from prior precedent and acknowledging the reasoning of other circuits. The court explained that where there is an intervening Supreme Court decision on an issue that overrules binding precedent and that provides appellant with a new claim or theory, the appellant may file a supplemental or substitute brief to raise the issue or theory in a timely fashion. Since the court granted the motion to file a supplemental brief, the motion to stay was denied as moot.

To view full opinion: http://media.ca11.uscourts.gov...les/201412198.enb.pdf

Argument: Non-Argument Calendar

Panel: Ed Carnes, Chief Judge, Tjoflat, Hull, Marcus, Wilson, William Pryor, Martin, Jordan, Rosenbaum, Julie Carnes, and Jill Pryor, Circuit Judges

Date of Issued Opinion: August 5, 2015

Docket Number: 14-12198 & 14-12807

Decided: Granted in part; denied, as moot, in part

Case Alert Author: Lizbell Lucero, Evelin Mac Clay, Evan Phoenix, and Daniel Villavisanis

Counsel: Margaret Y. Foldes et. al, for Appellant
Amit Agarwal et al, for Appellee

    Posted By: Gary Kravitz @ 09/16/2015 03:37 PM     11th Circuit     Comments (0)  

  Singh v. Caribbean Airlines, Ltd.
Headline: The Eleventh Circuit, in applying the core functions test, holds that the Minister of Finance of Trinidad and Tobago ("Minister") qualifies as a political subdivision of a foreign state.

Area of Law: Foreign Sovereignty

Issue(s): Whether the Minister qualifies as a political subdivision of a foreign state, thereby entitling Caribbean Airlines, Ltd. ("CAL") immunity from a jury trial under the Foreign Sovereign Immunities Act ("FSIA").

Brief Summary: Appellant, Soorajnine Singh ("Singh") filed a complaint against Appellee, CAL in state court. CAL removed the matter to the district court and sought to strike Singh's jury demand, claiming jury immunity under the FSIA. The district court granted the motion to strike. The Eleventh Circuit, applying the core functions test, affirmed.

Extended Summary: On December 15, 2011, Singh suffered a stroke on board a CAL flight. CAL is organized under the laws of Trinidad and Tobago and is majority-owned by the Minister. CAL moved to strike Singh's jury demand claiming it qualified as a "foreign state," as defined in the FSIA, and sought jury immunity. The district court granted CAL's motion to strike and, after a bench trial, found CAL not negligent.

On appeal, the Eleventh Circuit affirmed the district court's judgment, concluding the Minister was a political subdivision of Trinidad and Tobago, and thus, CAL qualified as an agency or instrumentality of the country. The court explained for purposes of asserting immunity from a jury trial under 28 U.S.C. § 1441(d), majority-owned subsidiaries of political subdivisions are entitled to foreign state status under the FSIA. The Eleventh Circuit adopted the core functions test as the appropriate standard to determine whether an entity qualifies as a political subdivision of a foreign state.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201414661.pdf

Panel: Marcus and Wilson, Circuit Judges, and Thapar (United States District Judge for the Eastern District of Kentucky, sitting by designation)

Argument: May 21, 2015

Date of Issued Opinion: August 20, 2015

Docket Number: 14-14661

Decided: Affirmed

Case Alert Author: Lizbell Lucero, Evelin Mac Clay, Evan Phoenix, and Daniel Villavisanis

Counsel: Charles M-P George for Appellants
John Maggio for Appellee

Author of Opinion: Wilson, Circuit Judge

    Posted By: Gary Kravitz @ 09/16/2015 01:54 PM     11th Circuit     Comments (0)  

September 15, 2015
  Nicolay Ivanov Angov v. Loretta E. Lynch, Attorney General - Ninth Circuit
Headline: Alien seeking asylum in the U.S. denied the right to cross-examine an investigator who wrote a report showing he submitted fraudulent documents in support of his alleged persecution.

Area of Law: Constituional Law; Immigration Law; Asylum Law

Issues Presented:

(1) Whether an Immigrant who has never entered the United States is afforded procedural due process rights under the constitution.

(2) Whether Angov was denied his right to examine evidence against him pursuant to 8 U.S.C. § 1229a(b)(4)(B) when the government failed to produce foreign police officials and U.S. State Department of Asylum Affairs officials to be cross examined by an asylum applicant.

(3) Whether Angov "presented evidence so compelling that no reasonable factfinder could find that [Angov] was not credible."
Brief Summary: Alleged persecution by Bulgarian officials led Nikolay Angov to seek asylum here in the United States. At his asylum hearing, the government presented an investigation report that tended to show Angov produced fraudulent documents as evidence for his asylum. Angov requested that the investigating officer be present at his hearing so Angov could cross-examined him. Angov argued that admitting the investigators report, without availing the investigator, deprived him of due process and statutory rights to cross-examine a witness who testified against him. The court rejected Angov's argument holding immigrants who have not 'entered' the United States are not afforded the same constitutional rights as those who have 'entered' the country. The Ninth and Second Circuits are split on admitting evidence of this nature.

Significance

Immigrants seeking asylum in the United States cannot bring due process challenges in the Ninth Circuit if they have not 'entered' this county, nor do they have statutory rights to cross-examine the witnesses against them if it would be unreasonable to require the witness to testify.

Extended Summary:

Nikolay Angov, a Bulgarian citizen, claimed he was consistently persecuted by Bulgarian police because of his gypsy lifestyle. Angov stated he was subjected to police beatings, false accusations and illegitimate arrests. Angov sought asylum in the US to escape the hostile environment in his home country of Bulgaria. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987) ("When granted asylum the alien may be eligible for adjustment of status to that of a lawful permanent resident . . . subject to numerical limitations and the applicable regulations."). Angov never formally entered the United States before submitting his application for asylum.

At his asylum hearing, Angov presented several documents as evidence of police misconduct including two Bulgarian subpoenas that ordered him to appear at a police station.

In response to Angov's application for asylum, the government conducted its own investigation through a U.S. consult in Bulgaria. The results of the investigation were summarized in a report which revealed countless flaws in Angov's documents, specifically the subpoena's, which included names of police officers who did not exist, stated the wrong case number, and were stamped with seals that were too small. While technically hearsay, the letter was highly probative of Agnov committing fraud to gain access to the U.S.

Angov and his attorney submitted a plethora of rebuttable evidence in response to the governments incriminating letter. Angov also requested the opportunity to cross-examine the investigators who wrote the letter, but the State Department refused. In its response, the Department explained it is State policy to refrain from disclosing specific information from an overseas investigation except for general procedural aspects of the investigation. Angov argued he was denied his procedural due process rights because he was not given the opportunity to cross-examine the witness who testified against him. Over Angov's objections, the Immigration Judge made an adverse credibility finding based on the letter, and denied Angov's application for asylum in the United States.

Angov appealed to the Board of Immigration Appeals but the board affirmed the Immigration Judge's decision not granting Angov asylum. Angov took his case up a second time claiming (1) he was denied his due process rights, (2) that he was denied statutory right and (3) that he provided enough evidence to overturn the Immigration Judge's decision.

Whether an Immigrant who has never entered the United States is afforded procedural due process rights under the constitution.

Once an alien has entered the United States, even if illegally, they are afforded full procedural due process protections. An alien who has not formally entered the United States however, has no constitutional right to procedural due process. "An alien seeking admission has not 'entered' the United States, even if the alien is in fact physically in the US."

The court held Angov never entered the United States. Due process rights did not kick in just because Angov showed up at a port in San Diego without valid entry documents seeking asylum. The court makes a distinction between immigrants living in the United States and immigrants seeking to live in the United States. The former are afforded constitutional due process protections while the latter are not. For this reason, Angov had no due process challenge because he has no due process rights as an immigrant seeking admission into the United States. The court was short in its due process analysis, simply concluding Angov did not 'enter' the United States.

Whether Angov was denied his right to examine evidence against him pursuant to 8 U.S.C. § 1229a(b)(4)(B) when the government failed to produce foreign police officials and the Director of the U.S. State Department of Asylum Affairs to be cross examined by an asylum applicant.
Angov claims he was denied his right to examine the witnesses against him pursuant to 8 U.S.C. § 1229a(b)(4)(B). But during an immigration hearing, the judge is not required to present every possible foreign witness who will testify against an immigrant, such would make it impossible to present adverse evidence against the immigrant. Instead, the government must only make reasonable efforts to provide an immigrant with the opportunity to confront the witnesses against him.
It was Angov's position that the author of the investigative report, the Bulgarian police officials, and the Director of the U.S. State Department of Asylum Affairs should have been brought to his hearing for an opportunity to be cross-examined. The court quickly and logically dispensed of this theory based on the tremendous burden this would place on all immigration hearings. If that were the case, it would be nearly impossible to present rebuttable evidence at an immigration hearing because the source of any information would need to be present. The onerous hurdles are obvious.
Whether Angov presented substantial evidence so compelling that no reasonable factfinder could find that Angov was not credible.
As a final effort to reverse the immigration judge's decision, Angov attempted to rebut the government's letter by presenting substantial evidence "so compelling that no reasonable factfinder could find that Angov was not credible." If Angov were able to meet this strict standard, the Ninth Circuit would reverse the immigration boards decision based solely on the evidence presented. During its analysis, the court again went into a discussion about the admissibility of the investigative report, addressing a jurisdictional split with the Second district.

Angov cited a per se Second Circuit rule in arguing the Ninth Circuit "must blind themselves" of the State Departments letter unless "it provide[d] particular information regarding how an investigation was conducted." The Ninth Circuit eagerly ignored the Second Circuit's per se rule requiring further explanation calling it an invitation to "craft quasi-statutory criteria [for] governing the admissibility of evidence in agency proceedings." Unlike the Second District, this court does not believe documents of this nature are inherently unreliable.

The majority opinion noted that Congress and the Attorney General have given immigrants seeking admission to the United States a variety of procedural rights, such as the right to a hearing represented by counsel, the right to examine evidence against him, and the right to cross examine the witnesses against him. The court refused to extend these rights to include barring a reliable State Department letter which provided clear evidence of fraud just because the investigator (who will likely always be in a foreign country) is not present. There is no reason to generally cast doubt on countless US agency documents unless there is something particularly unreliable about a specific one document. There are obvious incentives for entering the United States, and the Ninth Circuit court refused to reward fraudulent activities to open the door.

Dissent

The dissent would join the Second Circuit in reviewing the State Departments letter. Chief Judge Thomas believes "unsworn, unauthenticated, hearsay letters - prepared for litigation by the government an not subject to any form of cross examination - cannot form a sole basis for denying asylum to an otherwise qualified applicant." To Thomas, admitting a report that was formed for litigation purposes, without presenting the investigator who prepared the document, gives the executive agency an unfair amount of unchallenged authority. He also feels Angus should have the right to due process challenges.

The dissent also showed concern with the lack of information the agency provided to support the contents of the investigative report. Essentially the government agency, in this case the Department of State's Office of Country Reports and Asylum Affairs, will perform an investigation and report its findings without providing any information as to how the investigation was conducted or establishing the credibility of the investigator. The dissenting opinion was unhappy with the lack of information required to support a document of this kind.

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/06/08/07-74963.pdf

Panel: Sidney R. Thomas, Chief Judge, Alex Kozinski and Stephen S. Trott, Circuit Judges

Date of Issued Opinion: June 8, 2015

Docket Number: 07-74963

Decided: Affirmed the Board of Immigrations Appellate decision, which affirmed the Immigration Judge's decision to deny asylum.

Case Alert Author: Brian D. Shapiro

Counsel:

Nicolette Glazer (argued), Law Offices of Larry R. Glazer, Century City, California, for Petitioner.

Gregory G. Katsas, Assistant Attorney General, Barry J. Pettinato, Assistant Director, Jesse Lloyd Busen (argued) and Charles E. Canter, Attorneys, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

Author of Majority Opinion: Judge Kozinski

Author of Dissenting Opinion: Chief Judge Thomas

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/15/2015 03:42 PM     9th Circuit     Comments (0)  

  Ward v. Apple, Inc. - Ninth Circuit
Headline: Is a Joint Tortfeasor always a 'necessary party' under FRCP Rule 19.

Areas of Law: Federal Civil Procedure, Antitrust

Issues Presented:

Whether AT&T Mobility (AT&T) was, as a joint tortfeasor, a necessary party to the legal action, such that the class' failure to join AT&T as a party to the legal action was cause dismissal of the entire action.

Whether the decision of the district court was voluntary or adverse to plaintiff, such that it invoked the court of appeals statutory appellate jurisdiction.

Brief Summary:
On October 19, 2012, the present putative class action was filed against Apple (Apple III) asserting a single antitrust claim: conspiracy to monopolize the aftermarket for iPhone voice and data services. The class did not name AT&T as a defendant even though the alleged conspiracy with Apple. The case was consolidated with Apple II and the parties stipulated to submit the Apple II briefs on the Rule 19 claim. The stipulation provided that the parties "agreed that the district court should grant Apple's motion to dismiss under Rule 12(b)(7) if the court decided to follow Judge Ware's decision in Apple II." Judge Rogers then granted the motion for reasons set forth in Judge Ware's July 11, 2012 Order. This created the judgment in favor of Apple and the Plaintiff's filed a timely appeal.

The Ninth Circuit first determined that they had jurisdiction because "voluntary dismissals with prejudice that produce an adverse final judgment may be appealed . . . at least where the plaintiff is not acting pursuant to a settlement agreement." The dissent stated that the parties "effectively agreed with Judge Rogers to manufacture appellate jurisdiction without presenting the Rule 19 issue to her for an independent decision."

As to the Rule 19 issue, the Plaintiff argued the District Court violated the "longstanding principle that joint tortfeasors need not be joined in one action." The Ninth Circuit responded by stating that whether a joint tortfeasor must be joined is a conclusion from the factual analysis because there "may be circumstances in which an alleged joint tortfeasor has particular interests that cannot be protected in a legal action unless it is joined under Rule 19(a)(1)(B)." The Ninth Circuit looked at the advisory committee's note to the 1966 amendment to the Federal Rules of Civil Procedure (FRCP) Rule 19, which stated that "a tortfeasor with the 'joint-and-several' liability is merely a permissive party to an action against another with like liability" and concluded that "[a]ntitrust conspirators are liable for the acts of their co-conspirators" and that therefore "a plaintiff is 'not required to sue all of the alleged conspirators . . . as antitrust coconspirators are joint and severally liable.'" This led the Ninth Circuit to the conclusion that "an absent antitrust co-conspirator generally will not be a required party under Rule 19(a)(1)(A)." It was the Ninth Circuit's opinion that the class could recover "all of their damages" from Apple alone, and that AT&T was not a required party under Rule 19(a)(1)(A).

The Ninth Circuit then turned their focus to Rule 19(a)(1)(B)(i) to determine if AT&T was a required party because their absence left them with an unprotected interest. The Ninth Circuit stated that "Rule 19(a)(1)(B) requires the determination of whether an absent joint tortfeasor is a required party by identifying the specific interest the absent party claims and . . . whether the party's ability to protect that interest may be impaired."

The Ninth Circuit then turned to the order from Judge Ware in Apple II which reasoned "that it would be required to evaluate AT&T's conduct, and that such an evaluation would necessarily implicate the interests of AT&T, which means that AT&T is a necessary party." This language left the Ninth Circuit with the interpretation that the district court was saying that "because the alleged conspiracy is with AT&T . . . AT&T is a necessary party." This was contrary to the general rule, however, the Ninth Circuit stated that FRCP Rule 19 (a)(1)(B)(i) turned on whether AT&T's interest qualifies for protection.

The Ninth Circuit stated that under FRCP Rule 19(a)(1)(B)(i) that there were to requirement for finding a required party. The first was whether or not the party identified as a required party, "claimed a legally protected interest relating to the subject matter of the action. Quoting Bowen v. United States, 172 F.3d 682 (9th Cir. 1999). Second is that the interest being claimed is legally protected. In Cachil Dehe Band, 547 F.3d at 970 (quoting Am. Greyhound Racing, 305 F.3d at 1023) the Ninth Circuit stated that the interest needs to "be more than a financial stake, and more than speculation about a future event."

To the first requirement, the Ninth Circuit went on to state that is was questionable whether or not a declaration from AT&T's counsel in Apple I, stating that AT&T has an interest in the case in Apple II was sufficient to be recognized as AT&T claiming an interest. However, the Ninth Circuit stated that it was not necessary to resolve that issue because "Apple has not shown that the interests AT&T has purportedly claimed are legally protected under [FRCP] Rule 19."

Turning focus to the second requirement, that the interest being claimed is legally protected the Ninth Circuit focused on the interest contended by Apple: (1) AT&T faces a risk of regulatory scrutiny; (2) AT&T faces risk of harms to its reputation; and (3) AT&T has a number of contractual rights that may be impaired if this action is resolved in its absence.

The Ninth Circuit stated that they were "reluctant to recognize legally protected interests based solely on '[s]peculation about the occurrence of a future event'" and that is what the risk of regulatory scrutiny was, a future speculated future event. As to the reputational interest, the Ninth Circuit stated "[a] joint tortfeasor's reputation generally will be adversely impacted in any case accusing it of wrongdoing . . . recognizing a protected interest in business reputation would significantly erode the general rule that a plaintiff need not join all joint tortfeasors in one action." Finally, looking at the contractual rights, the Ninth Circuit concluded that the rights to the unlock codes may or may not have been an interest that AT&T had at the time, the Plaintiffs had no claims arising under the AT&T Wireless Service Agreement (WSA), and that Apple was not a party to the WSA and could not benefit from the WSA.
In concluding that AT&T may or may not have claimed an interest, but that any interest claimed by AT&T was not a legally protected interest, the Ninth Circuit found that AT&T was not a necessary party to the action. The Ninth Circuit reversed the decision of the district court and remanded the case for further proceedings.

Significance:

Under Rule 19, the general rule is that joint tortfeasors are not a required party, unless it is shown that the party is claiming an interest in the subject matter of the case, and that the interest being claimed is a legally protected interest.

Extended Summary: The sale of iPhones began in June 2007 when Apple, Inc. (Apple) entered into an agreement with AT&T Mobility (AT&T) as the exclusive provider of voice and data services for a period of five years. The first lawsuit was filed in the Northern District of California by nine Apple customers. The suit claimed that Apple installed "software locks" on the iPhones in order to protect and enforce the exclusivity agreement between Apple and AT&T without the customer's knowledge. Theses "software locks" allowed AT&T to charge "supra-competitive prices for wireless services. The nine cases were consolidated into the case In re Apple AT&TM Anti-Trust Litigation, No. 5:07-cv-05152-JW(N.D. Cal.)(Apple I). In 2008 and 2009, the district court denied motions by Apple and AT&T to dismiss, but he motions were denied and the class was certified on July 8, 2010. AT&T, after originally being denied motions to compel arbitration under their user agreements, AT&T was successful in 2011 in getting the motions granted.

In 2011 and 2012 new suits were filed by Apple customers and were consolidated into In re Apple iPhone Antitrust Litigation, No. 4:11-cv-06714-YGR (N.D. Cal.) (Apple II). The claims by the plaintiffs in Apple II were the same as those in Apple I, with a change of defendants. In Apple II, AT&T was not named a defendant. Under Apple II, AT&T again attempted to compel arbitration but was unsuccessful because AT&T was not a named party. AT&T then filed a declaration stating that "AT&T has an interest in this case, . . . AT&T has not intervened in this suit because, given the ruling in Apple I, . . . f AT&T were to be joined to this litigation, AT&T would move to compel arbitration." The District court then held that AT&T was a necessary party. The district court stated in the opinion " n order to evaluate Plaintiffs' antitrust claims in regard to the alleged conspiracy to monopolize the alleged iPhone Voice and Data Services Aftermarket, the Court will be required to evaluate AT&T's conduct." The district court concluded that "[s]uch an evaluation of AT&T's conduct would necessarily implicate the interests of AT&T, which means that AT&T is a necessary party pursuant to Rule 19(a)." Since the plaintiff in Apple II refused to add AT&T as a party, their suit was dismissed.

On October 19, 2012, the present putative class action against Apple was filed (Apple III) asserting a single claim against Apple, conspiracy to monopolize the aftermarket for iPhone voice and data services. Again, AT&T was not a named defendant. The case was consolidated with Apple II and the parties stipulated to submit the Apple II briefs on the Rule 19 claim. The stipulation provided that the parties "agreed that the district court should grant Apple's motion to dismiss under Rule 12(b)(7) if the court decided to follow Judge Ware's decision in Apple II." Judge Rogers then granted the motion "for reasons set forth in Judge Ware's July 11, 2012 Order." This created the judgment in favor of Apple and the Plaintiff's filed a timely appeal.

The Ninth Circuit first determined that they had jurisdiction because "voluntary dismissals with prejudice that produce an adverse final judgment may be appealed . . . at least where the plaintiff is not acting pursuant to a settlement agreement." The dissent stated that the parties "effectively agreed with Judge Rogers to manufacture appellate jurisdiction without presenting the Rule 19 issue to her for an independent decision." This was because the parties stipulation regarding the Rule 19 briefs from Apple II. However, the majority of the Ninth Circuit determined from the statements in the record that Judge Rogers completed her own review and agreed with Judge Ware and instead of issuing different language, repeated the wording used by Judge Ware. This meant that Ward had an adverse judgment, that was appealable.

The Ninth Circuit then turned to the Rule 19 issue. Here, Plaintiff Ward had argued that the "longstanding principle that joint tortfeasor need not be joined in one action" was violated by the District Court's ruling. The Ninth Circuit responded by stating that whether a joint tortfeasor must be joined is a conclusion from the facts because there "may be circumstances in which an alleged joint tortfeasor has particular interests that cannot be protected in a legal action unless it is joined under Rule 19(a)(1)(B)." The Ninth Circuit looked at the advisory committee's note to the 1966 amendment to the Federal Rules of Civil Procedure (FRCP) Rule 19, which stated that "a tortfeasor with the 'joint-and-several' liability is merely a permissive party to an action against another with like liability" and concluded that "[a]ntitrust conspirators are liable for the acts of their co-conspirators" and that therefore "a plaintiff is 'not required to sue all of the alleged conspirators . . . as antitrust coconspirators are joint and severally liable." This lead the Ninth Circuit to the conclusion that "an absent antitrust co-conspirator general will not be a required party under Rule 19(a)(1)(A). It was the Ninth Circuit's opinion that Ward would be able to recover "all of their damages" from Apple alone, and that AT&T was not a required party under Rule 19(a)(1)(A).

The Ninth Circuit then turned their focus to Rule 19(a)(1)(B)(i) to determine if AT&T was a required party because their absence left them with an unprotected interest. In this regard, the Plaintiffs contended that the district court erred by holding AT&T a required party without specifically identifying AT&T's interests and how that interest might be impaired if the action were resolved in their absence. This argument struck accord with the Ninth Circuit, who agreed that "Rule 19(a)(1)(B) requires the determination of whether an absent joint tortfeasor is a required party by identifying the specific interest the absent party claims and . . . whether the party's ability to protect that interest may be impaired."

The Ninth Circuit then turned to the order from Judge Ware in Apple II which reasoned "that it would be required to evaluate AT&T's conduct, and that such an evaluation would necessarily implicate the interests of AT&T, which means that AT&T is a necessary party." This language left the Ninth Circuit with the interpretation that the district court was saying that "because the alleged conspiracy is with AT&T . . . AT&T is a necessary party." However, the Ninth Circuit stated that FRCP Rule 19 (a)(1)(B)(i) turned on whether AT&T's interest qualifies for protection.

The Ninth Circuit stated that under FRCP Rule 19(a)(1)(B)(i) that there were to requirement for finding a necessary party. The first was whether or not the party identified as a required party, "claimed a legally protected interest relating to the subject matter of the action. Quoting Bowen v. United States, 172 F.3d 682 (9th Cir. 1999). Second is that the interest being claimed is legally protected. In Cachil Dehe Band, 547 F.3d at 970 (quoting Am. Greyhound Racing, 305 F.3d at 1023) the Ninth Circuit stated that the interest "be more than a financial stake, and more than speculation about a future event.

To the first requirement, the Ninth Circuit went on to state that is was questionable whether or not a declaration from AT&T's counsel in Apple I, stating that AT&T has an interest in the case in Apple II was sufficient to be recognized as AT&T claiming an interest. However, the Ninth Circuit stated that it was not necessary to resolve that issue because "Apple has not shown that the interests AT&T has purportedly claimed are legally protected under [FRCP] Rule 19."

Turning focus to the second requirement, that the interest being claimed is legally protected the Ninth Circuit focused on the interest contended by Apple: (1) AT&T faces a risk of regulatory scrutiny; (2) AT&T faces risk of harms to its reputation; and (3) AT&T has a number of contractual rights that may be impaired if this action is resolved in its absence.

On the issue of regulatory scrutiny, Apple relied on an Eleventh Circuit case of Laker Airways, Inc. v. British Airways PLC, 182 F.3d 843 (11th Cir. 1999). The Ninth Circuit held that the Laker Airways case was inapposite because the private corporation in that case stood to lose their approval as the appointed coordinator, not just routine regulatory scrutiny. In addition the Ninth Circuit went on to say that they were "reluctant to recognize legally protected interests based solely on '[s]peculation about the occurrence of a future event.'"

On the issue of reputational interests the Ninth Circuit made it clear that this was not a legally protected interest. The Ninth Circuit stated "[a] joint tortfeasor's reputation generally will be adversely impacted in any case accusing it of wrongdoing . . . recognizing a protected interest in business reputation would significantly erode the general rule that a plaintiff need not join all joint tortfeasors in one action."

Turning to the final interest contended by Apple, that of contractual rights being impaired, the Ninth Circuit found that Apple was claiming AT&T had three different contract rights that would be impaired: (1) AT&T's right to control unlock codes; (2) rights arising from AT&T's wireless Service Agreement (WSA) with customers; and (3) AT&T's arbitration provisions in the WSA.

As to the first, AT&T's rights to control unlock codes, the Ninth Circuit found that this right only lasted during the contract and the unwind period. With the contract over and the unwind period sufficiently vague, the Ninth Circuit concluded that this was insufficient to constitute a protected interest because AT&T may not have the rights to control unlock codes.

As for the second claimed interest, claims from AT&T's WSA, the Ninth Circuit found that this was not a protected interest because the district court stated that "[the] Plaintiffs have not contended that any of their claims arise from AT&T service contracts." In addition, if the WSA was so important there would have been a copy in the record, and there was none.

Finally, as for the AT&T arbitration provision of the WSA, the Ninth Circuit found that Apple was not a signatory to the contract and thus could not benefit from its provisions. Thus, this interest was not a legally protected interest.

In concluding that AT&T may or may not have claimed an interest, but that any interest claimed by AT&T was not a legally protected interest, the Ninth Circuit found that AT&T was not a necessary party to the action. The Ninth Circuit reversed the decision of the district court and remanded the case for further proceedings.

Dissent:

In Judge Wallace's dissent, he wrote that the court should not have heard the case because there was no appealable issue - it was voluntarily dismissed that resulted no adverse judgment for which to appeal. Judge Wallace would have also affirmed the order of the district court by concluding Plaintiff waived the Rule 19 issue "by inviting Judge Rogers to adopt the very analysis that they now allege on appeal was erroneous." Judge Wallace stated that "[O]ne may not complain on review of errors below for which he is responsible."

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/06/29/12-17805.pdf

Panel:
J. Clifford Wallace, Milan D. Smith, Jr., and Michelle T. Friedland, Circuit Judges.

Date of Issued Opinion: June 29, 2015

Docket Number: No. 12-17805

Decided: Reversed and Remanded.

Case Alert Author:
Lawrence J. Hudack

Counsel:
Mark C. Rifkin (argued), Alexander H. Schmidt, and Michael Liskow, Wolf Haldenstein Adler Freeman & Herz LLP, New York, New York; Francis M. Gregorek and Rachele R. Rickert, Wolf Haldenstein Adler Freeman & Herz LLP, San Diego, California; Randall S. Newman, Randall S. Newman P.C., New York, New York, for Plaintiff-Appellant Zack Ward.

Adam J. Levitt, Grant & Eisenhofer P.A., Chicago, Illinois, for Plaintiff-Appellant Thomas Buchar.

Daniel M. Wall (argued) and Christopher S. Yates, Latham & Watkins LLP, San Francisco, California; J. Scott Ballenger and Roman Martinez, Latham & Watkins LLP, Washington, D.C., for Defendant-Appellee.

Author of Opinion: Judge Milan D. Smith, Jr.

Author of Dissent: Judge Wallace

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/15/2015 03:37 PM     9th Circuit     Comments (0)  

  Ninth Circuit: Velazquez v. City of Long Beach
Headline: 9th Circuit reverses JMOL which held Long Beach police did not use excessive force or conduct an unlawful arrest.

Areas of Law: Federal Civil Procedure, Criminal Procedure

Issues Presented: Whether the district court erred in granting judgment as a matter of law on plaintiff's Section 1983 Fourth Amendment unlawful arrest claim?
Whether the decision on the judgment as a matter of law fatally infected the jury's verdict on plaintiffs excessive force claims?

Brief Summary: The panel held that the district court erred in granting judgment as a matter of law on plaintiffs Section 1983 Fourth Amendment unlawful arrest claim. The panel decided the jury was improperly influenced as a result of the district courts ruling on the judgment as a matter of law. Furthermore the panel held that the district court erred in granting the City's judgment as a matter of law on the claims against them. Lastly, the panel held that the district court erred in its failure to grant supplemental jurisdiction over the plaintiffs state law claims.

In coming it its conclusions in the above mention holdings, the panel relied on the fact that the district court improperly implemented Rule 50(a) judgment as a matter of law procedurally. When the district court chose to credit the defense witnesses and discredit the plaintiffs witnesses and refused to draw reasonable inferences in favor of the plaintiff which is typically a jury decision. Since, the district court failed to allow the jury the opportunity to make that decision the panel held the district court abused its discretion.

Extended Summary: This case arises out of a series of events that are in dispute between the parties. Plaintiff was arrested in front of his home in Long Beach California for resisting arrest. Plaintiff contends that he was unlawfully arrested and subjected to excessive force. On October 24, 2009 plaintiff was celebrating his birthday. He began drinking alcohol around lunch time until the evening when Long Beach police officers responded to two calls at the residence for disturbing the peace. There are two versions of the events that transpired: the Police version and the plaintiff's witnesses version.

The officers claimed plaintiff walked outside of the house still drinking. According to police, plaintiff was so intoxicated that he was unable to stand without grasping their squad car, and when the officer told the plaintiff and his friends to go inside, plaintiff said "yeah sure," while sarcastically shaking his head. Because plaintiffs menacing remark insulted the officer, he was placed under arrest where plaintiff told the officer to "fuck off." The officer then claims plaintiff failed to comply with his verbal commands, which resulted in the officer using a series of tactical maneuvers to get plaintiff to the ground. The officer contends plaintiff continued resisting arrest so he was forced to strike plaintiff with his baton - 11 times.

Plaintiff's witness tell a different version. According to his witness, plaintiff was not drinking outside. When they saw the police, plaintiff's cousin told the officer "don't worry, we're leaving officer" and then plaintiff asked the officers "what's up?" When police heard plaintiffs question, they immediately stopped the car and reversed back to where plaintiff and his friends were located. The officer inquired about what was said, then "speed walked" toward plaintiff and said, " I'm tired of people calling because of you motherfuckers." Witnesses contend that no verbal commands were issued; the other officer testified that he did not hear any commands as well. Next the officer takes plaintiff to the ground and continues to beat him up while never issuing any verbal commands.

Before trial, each side filed several motions in limine. The judge decided to rule on the motions at trial and the district court granted the motion to exclude the evidence of prior officer complaints, discipline and internal affairs history. Ultimately the district court grants the City's rule 50 judgment as a matter of law request and dismissed plaintiffs state law claims, only allowing the jury to hear the excessive use of force claim.

In plaintiffs unlawful arrest claim, the district court ruled that a reasonable jury could not have found that the officer lacked probable cause to arrest plaintiff for resisting a police officer. The panel held that the district court erred in its decision and relied on the plaintiff having a right to verbally question the officer and that the district court discredited the plaintiffs argument of a possible motive for the officers actions. Additionally, the district court chose to credit the defense witness over the plaintiff's even though the evidence was far from one sided. Simply put, it should have been left to the jury to decide.

Since the panel determined the district court erred in granting defendants judgment as a matter of law, the panel considered how this affected plaintiffs excessive force claim and ultimately held it fatally infected the jury's verdict as to excessive force. The court relied on the Graham factors and concluded that based on all the improperly excluded evidence, that the jury verdict must be reversed.

The panel held that the district court erred in granting the City's motion for judgment as a matter of law in their liability claims. The panel relied on the plaintiff having alleged valid grounds for liability under this cause of action, but the courts granting of a motion in limine for the defense prevented this evidence from being heard. Since it was never presented, the incorrect ruling on the evidence resulted in the judge erroneously entering a judgment as a matter of law for the defense.

Lastly, the panel held that the district court should not have dismissed plaintiffs state law claims. The district court dismissed them based on jury confusion. The panel overruled that decision relying on the presumption the jury's follows instructions, and that properly read instructions should not confuse the jury. Ultimately the Ninth Circuit held the district court abused its discretion in refusing to exercise supplemental jurisdiction.

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/12-56933.pdf


Panel: Kim Mclane Wardlaw and Marsha S. Berzon, Circuit Judges and William E. Smith, District Judge

Date of Issued Opinion: July 15, 2015

Docket Number: 2:11-cv-00120-R-JEM

Decided: Reversed and Remanded to vacate the district court ruling to grant defendants JMOL motion.

Case Alert Author:
Robert J. Dagmy

Counsel:
Petitioner - Mitchell Keiter.
Respondent - Howard D. Russell (argued) , Deputy City Attorney: Charles Parkin, City Attorney Long Beach, California.

Author of Opinion: Judge Berzon

Case Alert Supervisor:
Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/15/2015 03:32 PM     9th Circuit     Comments (0)  

  Brand Marketing Group LLC v. Intertek Testing Services NA - Third Circuit
Headline:
The Third Circuit holds that punitive damages are available for negligent misrepresentation claims.

Area of Law: Tort

Issues Presented:
Whether punitive damages are per se unavailable for negligent misrepresentation?

Brief Summary:
A jury found Intertek Testing Services, N.A., Inc. liable to Brand Marketing Group, LLC for negligent misrepresentation and awarded Brand $1,045,000 in compensatory and $5 million in punitive damages. Interk appealed. The Third Circuit affirmed, finding that punitive damages are available for negligent misrepresentation claims and that there is an exception to the economic loss doctrine for negligent misrepresentation relied on by a third party.

Extended Summary:
A jury found Intertek liable to Brand Marketing Group for negligent misrepresentation and awarded Brand over $6 million in damages. Intertek was responsible for ensuring that Brand's product, a vent-free heater, complied with the relevant safety standard. Intertek represented to Brand that the product complied with that standard. Brand then entered into a contract with Ace Hardware Corporation to sell the product, but it was not in fact compliant with the relevant standard and Ace refused to sell it and demanded a refund. Ace ultimately filed a lawsuit against Brand and was awarded $611,060 in damages.
Brand sued Intertek for negligent misrepresentation. The jury awarded Brand $725,000 in past compensatory damages and $320,000 in future compensatory damages, and $5 million in punitive damages. Intertek unsuccessfully moved for post-trial relief and then timely appealed.
Intertek first argued on appeal that Brand's case was foreclosed by the economic loss doctrine because Intertek's negligence resulted in only economic damages. The Court noted that the Supreme Court of Pennsylvania has recognized an exception for negligent misrepresentation claims. The plain text of Restatement (Second) of Torts § 552(2)(a) permits claims by a third party when a professional provides information and knows that the recipient intends to supply it to the third party. The Court held that Intertek knew that somebody aside from the manufacturer would rely on its testing. Therefore, the district court correctly permitted Brand's negligent misrepresentation claim to proceed under Pennsylvania's exception to the economic loss doctrine.
The Court also considered whether punitive damages are available for negligent misrepresentation claims. The Court noted that the Pennsylvania. Supreme Court had held that punitive damages may be awarded in negligence cases if the plaintiff proves greater culpability than ordinary negligence at trial. The Court held that a plaintiff may undertake the additional burden of proving a heightened culpability required to sustain a punitive damages claim in negligence suits and in negligent misrepresentation cases specifically. The Third Circuit rejected Intertek's remaining arguments and affirmed the district court's denial of its post-trial motions. To view the full opinion, click here: http://www2.ca3.uscourts.gov/opinarch/143010p.pdf


Panel: Fisher, Hardiman, and Roth, Circuit Judges

Argument Date: April 28, 2015

Date of Issued Opinion: September 10, 2015

Docket Number: No. 14-3010

Decided: Affirmed.

Case Alert Author: Yolanda Felix

Counsel: William T. Hangley, Esq., Matthew A. Hamermesh, Esq., Dina L. Hardy Grove, Esq. for Appellant Intertek Testing Services N.A., Inc.; Brendan B. Lupetin, Esq. for Appellee Brand Marketing Group LLC d/b/a Thermablaster.

Author of Opinion: Judge Hardiman

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/15/2015 10:38 AM     3rd Circuit     Comments (0)  

September 14, 2015
  FDIC v. Rippy - Fourth Circuit
Headline: Bank Officers Can Be Held Personally Liable for Bad Loans Despite Business Judgment Rule Protections

Areas of Law: Business Law, Torts

Issue Presented: Whether the business judgment rule and North Carolina statutory law prevent bank directors and officers from being held personally liable for bank losses under theories of gross negligence, negligence, and breach of fiduciary duty.

Brief Summary: In a case that attracted a lot of attention from banking associations across the nation, the United States Court of Appeals for the Fourth Circuit upheld the District Court's grant of summary judgment for the directors of Cooperative Bank on all counts. The Court's opinion was based on the business judgment rule as read in conjunction with an exculpatory clause in the bank's articles of incorporation. The court reversed the District Court's grant of summary judgment for the officers of Cooperative Bank on the claims of ordinary negligence and breach of fiduciary duty finding that the officers did not act within generally accepted banking practices when they approved many of the bank's loans.

Extended Summary: Cooperative Bank, based in North Carolina, closed in 2008. The bank ran into trouble when the board of directors voted to increase the bank's assets from $443 million to $1 billion in three years. This was carried out through increased commercial real estate lending.

For two years, the bank received fair grades on its FDIC reviews. The FDIC did provide the bank with feedback that it should improve its credit administration and underwriting practices. The issues were not addressed and two years later the bank was found to be extremely deficient during its annual review. This resulted in a Cease and Desist Order from the FDIC in 2008. Shortly, thereafter the bank closed when it was unable to comply with the order.

The FDIC sustained $216.1 million in losses when the bank closed. It sought to recoup this money from the bank's directors and officers. The FDIC brought claims of gross negligence, negligence, and breach of fiduciary duty against the directors and officers in federal district court. The directors and officers sought an order of summary judgment citing the business judgment rule. Any evaluation of personal liability for a bank's directors and officers under federal and North Carolina law is assessed after the business judgment rule is applied. The business judgment rule states that the initial presumption is the directors and officers acted with due care and good faith when making business decisions. A court will not overturn a business decision made by directors and officers unless this presumption is rebutted. The District Court granted summary judgment in favor of both sets of defendants and the FDIC appealed.

In Atherton v. FDIC, 519 U.S. 213 (1997), the Supreme Court held that a state may set its own standard by which a director or officer of a financial institution may be held personally liable in a civil action, as long as that standard meets the gross negligence floor required by federal statute. 12 U.S.C. §1821(k). Under North Carolina law a director or officer of a bank must act 1) in good faith, 2) with the care of an ordinarily prudent person, or 3) in a manner he reasonably believes to be in the bank's best interest. North Carolina state law further provides that officers and directors may be held personally liable for negligence. However, North Carolina law allows directors to escape liability from ordinary negligence if the corporation's articles of incorporation include an exculpatory provision barring such liability.

Cooperative Bank's articles of incorporation provided an exculpatory clause for the directors which shielded them from liability for negligence and breach of fiduciary duty as long as there was no evidence of fraud or self-dealing. The court found that in light of the provision, the award of summary judgment for the directors on these counts was correct.

The exculpatory provision did not, however, extend to the officers. Because the officers were not exempted from liability under the articles of incorporation, the court then considered whether sufficient evidence had been presented to rebut the business judgment presumption as to the officers' conduct. The court found the FDIC presented adequate evidence the officers knew the loan writing system was unsatisfactory. The court also found the FDIC rebutted the business judgment presumption when it presented evidence the officers were approving loans over the phone and the officers had not received or reviewed the required loan documents prior to approving the loans. Although officers said they relied on reports from the bank's loan administrators, the court found there was a genuine issue of material fact as to whether it was reasonable to rely on these reports given the feedback provided to the officers during the FDIC's reviews which pointed out the issues with the bank's loan writing policies. The court reversed the District Court's grant of summary judgment for negligence and breach of fiduciary duty claims against the officers.

To read the full opinion, click here.

Panel: Judges Gregory, Harris, and Hamilton

Argument Date: 05/13/2015

Date of Issued Opinion: 08/18/2015

Docket Number: Case No. 14-2078

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

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

Counsel: James Scott Watson, FEDERAL DEPOSIT INSURANCE CORPORATION, Arlington, Virginia, for Appellant. Thomas E. Gilbertsen, VENABLE LLP, Washington, D.C., for Appellees. ON BRIEF: Mary L. Wolff, Douglas A. Black, WOLFF ARDIS, P.C., Memphis, Tennessee; Colleen J. Boles, Assistant General Counsel, Kathryn R. Norcross, Senior Counsel, Steven C. Morrison, Counsel, FEDERAL DEPOSIT INSURANCE CORPORATION, Arlington, Virginia, for Appellant. Ronald R. Glancz, Meredith L. Boylan, VENABLE LLP, Washington, D.C.; Camden R. Webb, Kacy L. Hunt, WILLIAMS MULLEN P.C., Raleigh, North Carolina, for Appellees. Katherine M.R. Bosken, Raleigh, North Carolina, for Amicus North Carolina Commissioner of Banks. Kate Comerford Todd, Steven P. Lehotsky, U.S. CHAMBER LITIGATION CENTER, INC., Washington, D.C.; John K. Villa, Kannon K. Shanmugam, Ryan Scarborough, Richard Olderman, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Amicus The Chamber of Commerce of the United States of America. Michael A.F. Johnson, Nancy L. Perkins, Elliott C. Mogul, Joanna G. Persio, ARNOLD & PORTER LLP, Washington, D.C., for Amici American Bankers Association, Alabama Bankers Association, Alaska Bankers Association, Arizona Bankers Association, Arkansas Bankers Association, California Bankers Association, Colorado Bankers Association, Connecticut Bankers Association, Delaware Bankers Association, Florida Bankers Association, Georgia Bankers Association, Hawaii Bankers Association, Heartland Community Bankers Association, Idaho Bankers Association, Illinois Bankers Association, Illinois League of Financial Institutions, Indiana Bankers Association, Iowa Bankers Association, Kansas Bankers Association, Kentucky Bankers Association, Louisiana Bankers Association, Maine Bankers Association, Maryland Bankers Association, Massachusetts Bankers Association, Michigan Bankers Association, Minnesota Bankers Association, Mississippi Bankers Association, Missouri Bankers Association, Montana Bankers Association, Nebraska Bankers Association, Nevada Bankers Association, New Hampshire Bankers Association, New Jersey Bankers Association, New Mexico Bankers Association, New York Bankers Association, North Carolina Bankers Association, North Dakota Bankers Association, Ohio Bankers League, Oklahoma Bankers Association, Oregon Bankers Association, Pennsylvania Bankers Association, Puerto Rico Bankers Association, Rhode Island Bankers Association, South Carolina Bankers Association, South Dakota Bankers Association, Tennessee Bankers Association, Texas Bankers Association, Utah Bankers Association, Vermont Bankers Association, Virginia Bankers Association, Washington Bankers Association, Washington Financial League, West Virginia Bankers Association, Wisconsin Bankers Association, and Wyoming Bankers Association. Matthew P. Previn, Joseph J. Reilly, Ali M. Abugheida, BUCKLEY SANDLER LLP, Washington, D.C., for Amici American Association of Bank Directors, Independent Community Bankers of America, and The Clearing House Association, LLC.

Author of Opinion: Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

Edited: 09/29/2015 at 12:44 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 09/14/2015 12:52 PM     4th Circuit     Comments (0)  

  Strickland v. Halsey - Fourth Circuit
Headline: Red Onion State Prison Reprimanded Again - Correction Officers Potentially Liable for Prison Inmate's Murder of Another Says Fourth Circuit

Areas: Criminal Law, Constitutional Law

Issue Presented: Whether qualified immunity protects state correctional employees from a 42 U.S.C. §1983 suit after one prison inmate is murdered as a result of favor swapping and insufficient searches of another prison inmate.

Brief Summary: In 2007, Robert C. Gleason entered Wallens Ridge State Prison after receiving a life sentence for murder. During his stint there, Gleason strangled his cellmate to death. At his court appearance for that murder, Gleason threatened to kill again if he was not executed. Subsequently, Gleason was transferred to Virginia's "supermax," Red Onion State Prison. While serving time at Red Onion, Gleason began masterminding his next murder. To this end, he befriended another inmate, Aaron A. Cooper, and convinced Cooper the two should teach Red Onion a lesson. In particular, Gleason convinced Cooper they could embarrass prison officials if Gleason pretended to murder Cooper during outdoor recreation time.

Sometime later, the two men were sent to the yard for a scheduled outdoor recreation time. The two officers who searched Gleason did not do so thoroughly, and Gleason was able to smuggle a rope into the recreation area. Gleason strangled Cooper with the rope while no officers were present.

The administrator of Cooper's estate sued under 42 U.S.C. §1983 alleging four Red Onion employees violated Cooper's 8th Amendment rights by being deliberately indifferent to his safety. Two of the officers were sued because they knew about Gleason's threats and were on duty at the time of Cooper's murder. The other two officers were sued because they conducted an insufficient search that allowed Gleason to sneak the murder weapon to the scene. The district court on summary judgment granted all four accused employees qualified immunity.

On appeal, the administrator of Cooper's estate challenged the lower court's determination that qualified immunity protected the officers involved. The United States Court of Appeals for the Fourth Circuit Court decided that two of the four officers were not protected by qualified immunity. The court explained that qualified immunity balances two important interests: (1) the need to hold public officials accountable when they exercise power irresponsibly, and (2) the need to shield officers from harassment, distraction, and liability when they perform their duties reasonably. An officer is entitled to qualified immunity in a §1983 case such as the instant one if (1) the conduct did not violate the constitutional right at issue or (2) the right was not clearly established at the time of the incident. The court emphasized that only one prong of this test must be satisfied. Then the court noted that the United States Supreme Court has long established the requirements for an 8th Amendment failure to protect claim. Those requirements are (1) a denial of the victim's rights must be sufficiently serious and (2) the prison official either purposefully caused the harm or acted with deliberate indifference.

Applying those rules to the case before it, the court first explained that the two officers who were on duty at time and knew of Gleason's earlier threats were protected by qualified immunity because their conduct did not violate the 8th Amendment. In particular, the court found that an objective person could not find the two performed in a manner that would be considered deliberately indifferent to a "substantial risk of serious harm" to Cooper.

The court then turned to the two correctional officers who searched Gleason just before he entered the yard. As to these two officers and the first prong of an 8th Amendment failure to protect claim, Cooper's death was a clear denial of the 8th Amendment. Turning to the second prong, the court explained the second prong is a subjective not objective test. Therefore, the case hinged on whether the defendants were subjectively aware of the risk of harm to Cooper. For a prison official to be liable under this prong, (1) the official must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and (2) he must also draw the inference. In the instant case, the Fourth Circuit held that the two officers responsible for Gleason's search prior to recreational time should have known that there was a substantial risk of serious harm if a sufficient search did not take place. The inadequate search was sufficient for the two officers to draw the inference that a substantial risk of serious harm existed. It was the court's view that the officers did make that inference, and chose to ignore it. Therefore, the Fourth Circuit found that those two officers' actions satisfied the two-prong test and found that they were potentially liable and could not be protected under qualified immunity. Accordingly, the Fourth Circuit affirmed in part and reversed and remanded in part.

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

Panel: Judges Wynn, Floyd, and Harris

Argument Date: 03/24/2015

Date of Issued Opinion: 08/19/2015

Docket Number: No. 14-6229

Decided: Affirmed in part; reversed and remanded in part by unpublished Opinion.

Case Alert Author: Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: Mary Lynn Tate, TATE LAW, PC, Abingdon, Virginia, for Appellant. Henry Keuling-Stout, KEULING-STOUT, P.C., Big Stone Gap, Virginia, for Appellees.

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 09/14/2015 10:30 AM     4th Circuit     Comments (0)  

  United States v. Fuertes, et al. - Fourth Circuit
Headline: Brothels in Unexpected Places - Fourth Circuit Vacates Annapolis Pimp's Conviction on Gun-Possession Charge

Areas of Law: Criminal Law; Criminal Procedure

Issues Presented: (1) Whether the district court erred in instructing jurors that sex trafficking by force, fraud, or coercion is a crime of violence; (2) whether the district court erred in admitting evidence of the appellants' violent acts against other pimps under Federal Rule of Evidence 404(b); (3) whether the district court erred in admitting expert testimony concerning the physical abuse of a key witness; (4) whether the district court erred in denying Fuertes' motion for acquittal on the conviction of sex trafficking by force, fraud, or coercion.

Brief Summary: From 2008 to 2010, Kevin Fuertes and German Ventura ran brothels in Annapolis and Easton, Maryland, as well as in Portsmouth, Virginia. They advertised their prostitution ring through business cards, and retained payment records regarding the sexual encounters each prostitute had with other men. Some of the women who worked in the brothels did so voluntarily, but Ventura forced one woman, Rebeca Duenas Franco, into prostitution through physical abuse. Franco later became a key prosecution witness.

Fuertes and Ventura also maintained control of their prostitution business through violence and threats of violence against other area pimps. The police suspected that the men murdered an Annapolis-area pimp after cell phone evidence related to the murder was discovered during Fuertes' arrest for an unrelated traffic violation, and during a consented search of his home. This search also revealed evidence that the home was being used as a brothel. Due to the murder suspicion and further investigation into Fuertes and Ventura's activities, the police conducted several raids of Annapolis and Easton-area brothels, which led to the arrests of the men in 2010. Though later acquitted for the murder of the Annapolis-area pimp, both men were charged with and convicted of a number of sex-trafficking and related offenses, including Ventura's conviction for possession of a firearm in relation to a crime of violence.

Fuertes and Ventura appealed their convictions to the United States Court of Appeals for the Fourth Circuit, asserting that the district court committed four errors regarding evidentiary rulings, jury instructions, and the sufficiency of the evidence. The appellants asserted two of the errors jointly and two individually. After analyzing the four arguments, the Fourth Circuit vacated Ventura's conviction for possession of a firearm in relation to a crime of violence, but affirmed the sex-trafficking convictions against both men.

Turning first to Ventura's firearm conviction, the Fourth Circuit held that sex trafficking by force, fraud, or coercion does not qualify categorically as a crime of violence. In order for an offense to be considered a crime of violence, the offense must be a felony that has elements of physical force being used, attempted, or threaten to be used against a person or personal property, or the nature of the crime involves a substantial risk that physical force may be used against a person or personal property. The court explained that when a criminal statute involving a felony offense has a single, indivisible set of elements, a categorical approach shall be used to determine if an offense qualifies as a crime of violence. Under the categorical approach, the court only looks to the statutory definition of the crime rather than the actual facts of the conviction to determine whether the offense is a crime of violence. A criminal statute that sanctions both violent and non-violent means of committing a crime cannot be a categorical crime of violence. The court reasoned that sex trafficking can be committed non-violently through fraud or coercion. The court also found there is not a substantial risk in every case of the defendant using physical force against the victim to complete the crime. Therefore, the court concluded that the district court erred in instructing the jury that sex trafficking is categorically a crime of violence.

Fuertes and Ventura also contended that the district court erred in admitting evidence of the violent acts and threats of violence they committed against other local pimps. In the appellants' view, that evidence only served to prove bad character, which violated Federal Rule of Evidence 404(b). Additionally, the men argued that those acts were not relevant to the sex-trafficking offenses, and if the acts were relevant, the probative value was far outweighed by the unfair prejudice against them. The Fourth Circuit rejected this argument, finding the district court did not abuse its discretion when it admitted the evidence of violent acts. The appellants' attempt to eliminate rival pimps demonstrated their participation in the prostitution business. The court also rejected the defendants' argument regarding the admissibility of an expert's testimony concerning Franco's abuse. In particular, the court found the expert did not opine on Franco's credibility, and did not offer an opinion as to who caused her injuries. The court noted that expert testimony which simply tends to corroborate the testimony of another witness is not grounds for exclusion of the testimony. Lastly, the court declined to set aside the jury verdict against Fuertes for the count of sex trafficking by force, fraud, or coercion, because there was sufficient evidence for a reasonable jury to find that Fuertes knew about Duenas being forced into prostitution.

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

Panel: Judges Davis, Keenan, and King

Argument Date: 05/13/2015

Date of Issued Opinion: 08/18/2015

Docket Numbers: No. 13-4755 and No. 13-4931
Decided: No. 13-4755 affirmed; No. 13-4931 affirmed in part and vacated and remanded in part by published opinion.

Case Alert Author: J'Naia Boyd, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Nicholas J. Vitek, VITEK LAW LLC, Baltimore, Maryland; Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, P.A., Columbia, Maryland, for Appellants. Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, P. Michael Cunningham, Rachel M. Yasser, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Davis

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 09/14/2015 10:12 AM     4th Circuit     Comments (0)  

  United States v. Bollinger - Fourth Circuit
Headline: An American Minister in Haiti and the Long Reach of the Commerce Clause

Issue Presented: Whether the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act of 2003 (18 U.S.C. § 2423) is constitutional under the Foreign Commerce Clause or is necessary and proper to implement a U.N. protocol addressing the sale of children, child prostitution and child pornography.

Brief Summary: Lutheran Minister Larry Bollinger moved to Haiti in 2004 to help run a ministry in Port-Au-Prince that provided impoverished children with shelter, food, and spiritual guidance. Shortly after moving there, Bollinger began engaging in sexual conduct with minors under the age of 18. Specific to this case, Bollinger engaged in oral sex and fondling with two eleven-year-old girls who came to his ministry for help. After confessing his addiction to his wife, Bollinger returned to the United States for treatment. Bollinger admitted to his psychiatrist that he molested the young girls. The psychiatrist, under his duty to do so, then reported the conduct to the police even though Bollinger had been adamant he did not engage in illicit conduct in the United States. Shortly thereafter, Bollinger was arrested. The United States Government indicted Bollinger under 18 U.S.C. §§ 2423 (c) and (e) - the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act of 2003 - for engaging in non-commercial illicit sexual conduct with a minor after traveling in foreign commerce.

At trial, Bollinger did not deny he engaged in illicit sexual acts with under-aged girls. Instead, he challenged the constitutionality of the statute. Specifically, Bollinger argued the statute was an overreach of congressional authority into the foreign sphere. Bollinger contended the Commerce Clause of the Constitution could not justify the statute's reach because his acts were non-commercial and thus did not impact foreign commerce. In response, the U.S. government argued that because Bollinger used foreign commerce to travel to Haiti as required to be charged under the statute, it was constitutional.

On appeal, the U.S. Court of Appeals for the Fourth Circuit first noted that Congress' authority in the context of foreign commerce is broader than its authority in interstate commerce due to the lack of federalism concerns. To survive constitutional challenge, the court next determined that the Government need only show the statute was rationally believed to have a demonstrable effect on foreign commerce. Because the statute was meant to curb sexual tourism to impoverished nations with lax sexual misconduct rules, the court held this particular statute did have the requisite demonstrable effect and was therefore constitutional.

In reaching this holding, the court affirmed the long reach of U.S. law to control U.S. citizens traveling abroad. While stopping short of holding that anyone who travels in foreign commerce before committing a criminal act can be reached by U.S. law, the court did note that any U.S. citizen who engages in commerce with a foreign nation is akin to the U.S. herself engaging in such commerce with that nation. The holding suggests that U.S. laws could potentially be applied to govern citizens abroad even when they engage in criminal conduct that is less disturbing than that at issue in the instant case.

To read the full opinion, click here.

Panel: Judges Gregory, Harris, and Hamilton

Argument Date: 05/13/2015

Date of Issued Opinion: 08/19/2015

Docket Number: No. 14-4086

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Anthony J. Colangelo, SOUTHERN METHODIST UNIVERSITY, Dallas, Texas, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Anthony G. Scheer, RAWLS, SCHEER, FOSTER, MINGO & CULP, PLLC, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee

Author of Opinion: Judge Gregory

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 09/25/2015 at 02:36 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 09/14/2015 09:27 AM     4th Circuit     Comments (0)  

September 11, 2015
  Young v. Martin et al. - Third Circuit
Headline: District Court erred in granting summary judgment where it failed to apply the excessive force test to mentally ill prisoner's claim of an Eighth Amendment violation against prison officials who strapped him in a restraint chair for fourteen hours.

Area of Law: Constitutional Law; Eighth Amendment

Issue(s) Presented: Whether the district court erred by granting summary judgment in favor of the Defendants by concluding that they did not violate Young's Eighth Amendment rights when they strapped him in a restraint chair naked for fourteen hours even though he posed no imminent threat of bodily harm to himself or others.

Brief Summary: A prisoner in a Pennsylvania correctional facility was secured in a four-point restraint chair naked for fourteen hours after an incident where he left his cell, which had been mistakenly left open. This prisoner had a history of mental illness, which had been exacerbated during years of solitary confinement.

The Third Circuit found that the prisoner's Eighth Amendment claims against the prison officials regarding the use of the restraint chair should be analyzed under the excessive force test as articulated by the United States Supreme Court. Applying that test, and drawing all reasonable inferences in favor of Young, the Third Circuit noted that reasonable minds could differ as to whether Young was already subdued when restrained, whether the situation leading up to the restraint constituted an emergency situation, and whether he was subjected to substantial harm and pain without penological justification.

Because genuine disputes of material fact existed as to whether Defendants' use of the restraint chair constituted excessive force in violation of the Eighth Amendment, the Third Circuit held that the district court erred in granting summary judgment to Defendants.

Extended Summary: Leonard G. Young, Jr., is a Pennsylvania prisoner with a long history of mental illness, including bipolar disorder and schizophrenia dating back to his childhood. For over six years, he has been held in solitary confinement in either restrictive housing or mental health units. Since his detention in solitary confinement, his symptoms have intensified, including episodes of hallucinations, paranoia, self-harm, and suicide attempts.

On September 20, 2009, Young's cell door was mistakenly unlocked and left open. Young exited, climbed several flights of stairs, and ended up on an internal roof in the law library. After a few minutes of yelling down his protests regarding prisoners' rights, Young followed correctional officers' (COs) orders to come down. He further complied with COs as they handcuffed him, but when Young then refused to walk by laying on the ground, his ankles were shackled and the COs carried him down another staircase.

Young was then placed face down on the ground and further restrained by four COs. Young remained motionless and did not struggle. Still, he was placed in a spit mask, his clothes were cut off, and a strip search was performed. After placement in a restraint chair was authorized by Defendants "to prevent [Young] from harming himself or staff," he was strapped into the chair naked with a smock placed over his lap. He did not physically resist, but he did complain that the restraints were too tight and cried out in pain while being strapped into the chair.

At 8:46 p.m., Young was wheeled into an air-conditioned cell and left naked except for the smock. A nurse evaluated him and found the restraints were too tight. He fell asleep, awoke at 5:20 a.m., and was cooperative in agreeing to see a psychiatrist and take medication. Later that morning, still in the chair, Young became agitated and stated he would "act out" when released. He was released at 10:30 a.m., totaling nearly fourteen hours in the chair. This exceeded the two-hour maximum recommended by the chair's manufacturer and the eight-hour maximum, absent special authorization, permitted by the prison's regulations. Defendants conceded that there was no evidence on record that anyone authorized a restraint exceeding the eight-hour maximum. Moreover, because of the air-conditioning blowing on his naked body during this period, Young's legs become numb and he could not walk upon his release and had to be wheeled back to his restrictive housing unit.

Young sued Defendants, claiming his placement in the chair constituted excessive force in violation of the Eighth Amendment. The district court granted Defendants' motion for summary judgment, noting that Defendants acted professionally and did not use excessive force because Young was agitated, violence-prone, and stated he would act out upon his release from the chair. Young appealed. The Third Circuit first had to determine whether to analyze Young's Eighth Amendment claim under the excessive force test or the condition of confinement test. The Eighth Amendment prohibits the infliction of cruel and unusual punishment. This prohibition bars prison officials from using excessive force against inmates and it imposes an affirmative duty on prison officials to provide humane conditions of confinement.

The Third Circuit examined a United States Supreme Court case that addressed whether the use of mechanical restraints constituted cruel and unusual punishment. The Supreme Court held that because the prisoner was subdued leading up to his restraint and no longer posed a safety risk, subjecting him to substantial risk of physical harm and unnecessary pain, discomfort, and humiliation in the way described served no penological justification. This was "unnecessary and wanton" and constituted cruel and unusual punishment under the Eighth Amendment. Although Defendants argued that the Supreme Court applied the conditions of confinement test in the leg iron case, the Third Circuit found this to be, in fact, an application of the excessive force analysis. Therefore, the Third Circuit concluded that Young's claims should be analyzed under the excessive force test as articulated by the Supreme Court.

Applying the excessive force test to its review of the record, the Third Circuit found that the district court failed to draw all reasonable inferences in Young's favor, and that there were genuine disputes of material fact regarding whether Defendants' use of the restraint chair violated the Eighth Amendment. First, given that Young was not violent or combative leading up to the restraint, the Court found that reasonable minds could differ as to whether Young posed a risk to himself or others. Second, because Young's cell door was left open, his exit did not amount to a prison break. Also, he complied with COs' orders following the initial roof incident, so a reasonable jury could find that the events of that day did not amount to an emergency situation. Lastly, due to Young's restraints being too tight and the air-conditioning blowing on his naked body during his extended period in the chair, the Court reasoned that Young was entitled to have a jury determine whether he was subjected to a substantial risk of physical harm without penological justification. The Third Circuit, therefore, vacated the grant of summary judgment in favor of Defendants and remanded the case for further proceedings.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/134057p.pdf

Panel: McKee, Chief Judge; Greenway, Jr. and Krause, Circuit Judges

Argument Date: October 29, 2014

Date of Issued Opinion: September 8, 2015

Docket Number: No. 13-4057

Decided: Vacated and remanded

Case Alert Author: Elizabeth C. Dolce

Counsel: Elizabeth F. Collura, Esquire, and Roert J. Ridge, Esquire, Counsel for Appellant; Sandra A. Kozlowski, Esquire, and Kemal A. Mericli, Esquire, Office of Attorney General of Pennsylvania, Counsel for Appellees

Author of Opinion: Circuit Judge Krause

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/11/2015 04:17 PM     3rd Circuit     Comments (0)  

September 10, 2015
  Berman v. Neo@Ogilvy LLC - Second Circuit
Headline: Creating Circuit Split, the Second Circuit Holds An Employee Fired After He Reported Securities Law Violations Internally to His Employer Can Seek Remedies Under the Dodd-Frank "Whistleblower" Retaliation Protection Provision.

Areas of Law: Securities Regulation; Labor and Employment

Issue(s) Presented: Whether an employee who suffers retaliation for reporting securities law violations internally can sue for the "whistleblower" retaliation remedies provided in Dodd-Frank.

Brief Summary: Daniel Berman worked as finance director at Neo@Oglivy, a media agency, where he reviewed the company's financial reporting and compliance and was responsible for internal accounting procedures affecting his employer and its parent company, WPP Group USA. During the course of his employment, Berman discovered practices that he alleged amounted to accounting fraud, and reported them internally. A senior officer at Neo@Oglivy allegedly became angry with Berman for this internal report, and Berman was terminated in April of 2013. In October of 2013, about six months after his termination, Berman reported the suspected fraudulent practices to the Securities and Exchange Commission ("SEC").

Berman sued his former employer alleging that he was fired in retaliation for reporting violations internally in violation of Section 21F, the "whistleblower" protection provision added to the Securities Exchange Act of 1934 ("Exchange Act"), by the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"). The United States District Court for the Southern District of New York granted summary judgment dismissing Berman's claims, holding that, in light of the "whistleblower" definition in that section, it provides protection only to those discharged from employment for reporting alleged violations to the SEC. In a split decision, the United States Court of Appeals for the Second Circuit majority reversed and remanded the case, holding that Berman may pursue retaliation remedies under Dodd Frank Section 21F, despite having reported the wrongdoing only internally, but not to the SEC, before his termination.

To read the full opinion, visit:
">http://www.ca2.uscourt.../de.....9/3/hilite/


Extended Summary: Section 21F, the "Securities Whistleblower Incentives and Protection" provision - added to the Exchange Act by the Dodd-Frank - defines a "whistleblower" as "any individual who provides . . . information relating to a violation of the securities laws to the [Securities Exchange] Commission." Subdivision 21F(h) of that provision, protects employees from retaliation by enjoining employers from firing, demoting, suspending, or otherwise harassing a "whistleblower" who provides information to the Commission under Section 21F, assists the Commission in judicial or other proceedings related to the information, or otherwise makes disclosures required or protected under the Exchange Act, the Sarbanes-Oxley Act of 2002, and other laws enforced by the SEC. The Sarbanes-Oxley Act of 2002 includes several provisions relating to internal disclosure of securities law violations or improper practices.

The United States District Court for the Southern District of New York granted summary judgment dismissing Berman's claims for retaliation remedies under Section 21F(h) based upon his firing following his internal reporting. Specifically, the district court held that, in light of the "whistleblower" definition in Section 21F, the subsection, 21F(h) retaliation protections apply only to those discharged from employment for reporting alleged violations to the SEC, and not to Berman, who was fired long before he reported any alleged wrongdoing to the SEC.

The Second Circuit majority disagreed, reversing the district court and remanding for further proceedings. Finding "arguable tension" between the express definition of a "whistleblower" in Section 21F - one who reports violations to the SEC - and the language in subsection 21F(h)(iii) - enjoining employers for retaliating against whistleblowers who make disclosures protected or mandated by the Sarbanes-Oxley Act - the majority deferred to the SEC's 2011 rule implementing section 21F to resolve the ambiguity. The SEC rule provides a broader "whistleblower" definition for purposes of the anti-retaliation protections afforded by Section 21F, that would include those making required and protected internal disclosures.

The Second Circuit majority also reasoned that, while select employees might report wrongdoing simultaneously to their employer and to the SEC, others who reported to their employer first hoping to correct the violation, and auditors and attorneys who might be required by law to report wrongdoing to their employer first, would not be protected from retaliation under a narrower reading of the statute. The majority further noted the SEC's extensive experience with whistleblowers, stating the SEC was "clearly the agency to resolve the ambiguity we face."

Finally, the majority opinion noted "the realities of the legislative process" at play in the last-minute drafting of the Dodd-Frank provision at issue. "When conferees are hastily trying to reconcile House and Senate bills, each of which number hundreds of pages, and someone succeeds in inserting a new provision . . . it is not at all surprising that no one noticed that the new subdivision and the definition of 'whistleblower' do not fit together neatly."

In his dissent, Judge Jacobs admonished his colleagues for effectively altering Dodd-Frank "by deleting three words ('to the Commission')" from the statute's "whistleblower" definition. He noted that this statutory change would create a split between the circuits in interpreting Dodd-Frank, with the Second Circuit "firmly on the wrong side of it." Judge Jacobs was wary to tread on Congress' intent, noting that it may well have had good reasons for writing the law as it did. In contrast to the majority, he argued the plain language of Dodd-Frank would be limited, but not wholly made moot, by adhering to the "plain language" definition set out in the statute.

To read the full opinion, visit: ">http://www.ca2.uscourt.../de.....9/3/hilite/


Panel: Circuit Judges Newman, Jacobs, and Calabresi

Argument Date: 6/17/2015

Argument Location: New York, NY

Date of Issued Opinion: 9/10/2015

Docket Number: 14-4626

Decided: Reversed and remanded.

Case Alert Author: Jake B. Sher

Counsel: Alissa Pyrich, Jardim, Meisner & Susser, P.C., Florham Park, NJ, for Appellant, Daniel Berman; Howard J. Rubin, Davis & Gilbert LLP, New York, NY, for Appellees, Neo@Oglivy LLC and WPP Group USA, Inc.; William K. Shirey, Asst. Gen. Counsel, Washington, D.C., for amicus curiae Securities and Exchange Commission, in support of Appellant; Kate Comerford Todd, U.S. Chamber Litigation Center, Inc., Washington, D.C., of Eugene Scalia, Gibson, Dunn & Crutcher LLP, Washington, D.C., for amicus curiae The Chamber of Commerce of the United States of America, in support of the Appellees.

Author of Opinion: Judge Newman (majority); Judge Jacobs (dissent)

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

Edited: 09/10/2015 at 09:12 PM by Elyse Moskowitz

    Posted By: Elyse Moskowitz @ 09/10/2015 09:02 PM     2nd Circuit     Comments (0)  

September 9, 2015
  In the matter of the search of electronic communications in the account of Chakafattah@gmail.com - Third Circuit
Headline: Fattah Cannot Use Speech or Debate Clause Protections to Stop Search Warrant for His Emails, Third Circuit Holds

Area of Law: Constitutional Law

Issues Presented:

Whether the Speech or Debate Clause of the U.S. Constitution issues raised on appeal can provide the basis for appellate jurisdiction under either the collateral order or the Perlman doctrine.

What does attorney-client privilege or attorney-work product privilege, under Perlman jurisdiction, require as to review to ensure the privilege is maintained.

Whether the Federal Rule of Criminal Procedure 41(g) provides appellate jurisdiction as to unexecuted search warrants for searches of email accounts.

Brief Summary:

U.S. Rep. Chaka Fattah sued to prevent the FBI from using a search warrant to investigate the contents of his private email account in connection with a grand jury probe into alleged fraud, extortion and bribery by the congressman. The Third Circuit held that Fattah could not prevent the search from taking place because any privilege that might result from the Speech and Debate Clause was one of non-use and not one of non-disclosure. Fattah would have ample opportunity to challenge under the Speech and Debate Clause the use of any materials discovered during the search during a subsequent trial. The Court emphasized that the Speech and Debate Clause was not intended to as an absolute shield for members of Congress from investigation for criminal wrongdoing. The Court did conclude, however, that Fattah was entitled to have any documents retrieved by the search warrant reviewed by an independent Justice Department to remove any documents protected by attorney-client privilege before turning them over to prosecuting attorneys.

Extended Summary:

The Government obtained a search warrant to search U.S. Rep. Chaka Fattah's gmail account as part of a federal grand jury investigation into alleged fraud, extortion, and bribery. Fattah filed a motion in the Federal District Court of Eastern Pennsylvania to stop of the warrant from being executed. When his motion was denied, he appealed to the Third Circuit. The main issue on appeal was whether the trial judge's order could be appealed prior to the conclusion of the case as a whole. Under what is known as the collateral order doctrine, judicial review is only available for a very small subset of prejudgment orders - those that (1) conclusively determine the disputed question, (2) resolve and important issue completely separate from the merits of the case, and (3) are effectively unreviewable on appeal from a final judgment.

The Third Circuit held that Fattah's Speech or Debate Clause claim failed to meet the second and third prongs of the collateral order doctrine. The Speech or Debate Clause provides that members of Congress "shall not be questioned in any other Place" "for any Speech or Debate in either House." The Court found that the prejudgment decision on the unexecuted search warrant was not separate from, and could substantially impact, the merits of the case. The Third Circuit further held, because Fattah could later move to suppress the evidence obtained through the search warrant, as well as appeal denial of such a motion, that the decision was effectively reviewable on appeal.

The Third Circuit also found against Fattah on his Perlman doctrine claim. The Perlman doctrine is designed to protect parties from the disclosure of privileged documents held by third parties - in this case Fattah's gmail account being held by Google. The Third Circuit held that, as such, the Speech or Debate Clause is not a privilege protected under the Perlman doctrine. The Third Circuit elaborated that the Speech or Debate Clause protections, forbidding the submission of "legislative act" evidence to a jury, could not extend so far as to shield Congresspersons from criminal investigations. In the course of its discussion, the Court once again noted the difference between disclosure of Speech or Debate Clause documents, which is permitted, and evidentiary use of, Speech or Debate Clause documents, which is prohibited.

The Third Circuit, however, held that the Perlman doctrine did apply to Fattah's claims of attorney-client and work-product privileges. On the merits, the Third Circuit held that the first-level privilege review of documents should be conducted by an independent DOJ attorney and left it to the District Court to further specify requirements for the review process.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/143752p.pdf

Panel: Ambro, Fuentes, Roth - Circuit Judges

Argument Date: January 12, 2015

Date of Issued Opinion: September 2, 2015

Docket Number: 14-3752

Decided: No appellate jurisdiction except as to attorney-client privilege and work-product privilege. Documents falling under those must be reviewed by independent DOJ attorney.

Case Alert Author: Philip Jones

Counsel:

Luther E. Weaver III, Esq. (argued) for Appellant

Kerry W. Kircher, Esq. (argued) (Amicus Attorney Appellant, House of Representatives Bipartisan Legal Advisory Group)

Donald E. Wieand, Jr., Esq. (Amicus Attorney Appellant, Google, Inc.)

Zane David Memeger, Esq., Jack Smith, Esq., Robert A. Zauzmer, Esq. (argued), Eric L. Gibson, Esq., Paul L. Gray, Esq. for Appellees

Author of Opinion: Fuentes, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 09/09/2015 01:06 PM     3rd Circuit     Comments (0)  

  Monroe v. Central Bucks School District - Third Circuit
Headline: Incendiary Posts that Disparage Students Not Protected First Amendment Speech, Third Circuit Holds

Area of Law: First Amendment, Public Employment Law

Issues Presented:
Whether blog posts that disparaged a teacher's students were protected First Amendment speech.

Brief Summary:

Natalie Monroe, a teacher in Bucks School District (the "District"), published a series of blog posts disparaging her students. The District found out about the posts and eventually fired her because of them. Monroe argued that her termination was illegal because the blog posts constituted protected First Amendment speech. The Third Circuit held that, while her speech was of sufficient public interest to warrant some degree of protection, the huge disruption caused by her highly incendiary posts was enough to justify the District's decision to fire her.

Extended Summary:

Monroe, a teacher in Bucks School District, maintained a personal blog wherein she occasionally disparaged her students and their parents. After her blog was discovered by students and reporters, she was suspended, subject to protests and requests by hundreds of students to opt out of being assigned to her classroom. A year after returning to school and receiving a series of negative performance reviews, Monroe was fired and she sued on a retaliation theory for exercising her freedom of speech rights.

The Third Circuit affirmed that Monroe's speech was not protected by the First Amendment. The Third Circuit held that, although Monroe's speech was related to the public interest, that her speech failed the Pickering balancing test - weighing a government employee's free speech rights against the interests of the government as an employer.

The Third Circuit held that Monroe's speech barely met the "public concern" requirement of the Pickering balancing test - where the subject of the speech is of concern to the community or of some significant news interest. The Third Circuit noted that a government employee's speech can meet the public concern requirement as long as it is not solely related to mundane employment grievances. In contrast to the District Court, the Third Circuit found that Monroe's occasional blog posts touching on broader issues such as academic integrity, honor, and the importance of hard work were sufficient to qualify the speech at issue as sufficiently of public concern.

The Third Circuit, however, held that the disruption that discovery of Monroe's blog posts created were sufficient to swing the balance definitively in favor of the government. Distinguishing from cases where the employee in question was participating in whistleblowing activity, the Third Circuit held that, even if her blog posts were speech of the highest value, the disruption caused at the school was so great as to preclude it from protection - because her "expressions of hostility and disgust against her students" would interfere with her duties as a teacher and the functioning of the District overall. The Third Circuit found the District had gone beyond its burden to show merely the possibility of disruption and had, in fact showed evidence of actual disruption. The Third Circuit also found that her year of employment following the blog posts and previous comments by School District officials about respecting Monroe's First Amendment rights did not preclude the District from arguing her speech was not, under the law, protected by the First Amendment.

Judge Ambro filed a dissenting opinion. In it, he argued that the District's termination decision was greatly influenced by Munroe's decision to grant a number of media interviews explaining her side of the situation after she learned of her firing. In Judge Ambro's view, this greatly increased the public significance of her speech, and the District offered insufficient evidence as to how these media interviews, as opposed to her initial blog posts, caused disruption at the school.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/143509p.pdf

Panel: Ambro and Cowen, Circuit Judges, and Restani, Judge

Argument Date: June 8, 2015

Date of Issued Opinion: September 4, 2015

Docket Number: No. 14-3509

Decided: Affirmed

Case Alert Author: Philip Jones

Counsel:

Stanley B. Cheiken, Esq. (Argued) for Appellant

Kimberly A. Boyer-Cohen, Esq. (Argued) for Appellee

Sean A. Fields, Esq. for Amicus Appellee - Pennsylvania School Board Association

Author of Opinion: Cowen, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 09/09/2015 12:06 PM     3rd Circuit     Comments (0)  

September 8, 2015
  United States v. Diaz
Headline: Second Circuit Holds That Brief Lane Deviations - Including a Large Truck's Touching the Solid Line Separating the Highway Lane from the Shoulder - Can Create Reasonable Suspicion for Fourth Amendment Purposes

Area of Law: Criminal Procedure

Issue(s) Presented: Whether a vehicle's wheels touching or crossing the solid painted lines of a highway gives rise to reasonable suspicion of a traffic violation, such that a resulting traffic stop is constitutional under the Fourth Amendment.

Brief Summary: Felipe and Wellington Diaz were driving an 18-wheeler tractor-trailer through Meridian, Mississippi when Senior Police Office Gordon Christopher Read received a tip from the United States Department of Homeland Security ("DHS") that a red or white tractor-trailer suspected of trafficking narcotics was an hour-and-half from his current location. Approximately two hours later, Read began driving on a local four-lane highway to resume his ordinary duties. As he drove, he noticed a black tractor-trailer also on the highway, and saw that on two occasions, the tractor-trailer's right rear wheels crossed the white line separating the right lane of traffic from the right shoulder of the road. Believing that this constituted careless driving in violation of Mississippi law, Officer Read stopped the tractor-trailer, which was subsequently searched by other Meridian Police Department officers. The search yielded approximately five kilograms of heroin and four kilograms of cocaine. A federal grand jury in the Southern District of New York returned an indictment against both Felipe and Wellington for conspiracy to possess with intent to distribute. During district court proceedings, Wellington moved to suppress the drugs recovered from the tractor-trailer as evidence. The district court granted the motion, noting that the tractor-trailer was virtually as wide as the highway lane, and the testimony about "two momentary touches of the highway divider" was insufficient to create reasonable suspicion, rendering the search unconstitutional. The U.S. Court of Appeals for the Second Circuit reversed, holding that under the totality of the circumstances, there was reasonable suspicion here, such that the search did not violate the Fourth Amendment. To read the full opinion, please visit http://www.ca2.uscourts.gov/de...3c40f631948/1/hilite/

Extended Summary: The Fourth Amendment permits brief investigative stops, such as a traffic stop, when a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity, or traffic violation. A reasonable suspicion of a traffic violation provides a sufficient basis under the Fourth Amendment for law enforcement officers to make a traffic stop. The reasonable suspicion standard requires less proof of wrongdoing than is necessary for probable cause, but does require some minimal level of objective justification. This is an objective injury that disregards the officer's subjective motivation and asks whether a reasonable officer would suspect unlawful activity under the totality of the circumstances.

Here, in examining the constitutionality of this search, the district court noted that the tractor-trailer was virtually as wide as the entire lane and that "normal driving and atmospheric conditions often cause a slight drift of the rear of the rig." The court concluded that "momentary touching by the back four wheels of a 53 foot truck along the [divider line]" did not amount to careless or impudent driving, and that the officer had lacked reasonable suspicion to stop the vehicle.

On appeal, the government argued that in the absence of adverse conditions, crossing the white line twice established an objectively reasonable suspicion to believe that a traffic violation had occurred. The Second Circuit agreed. Explaining that there is no bright-line rule here, the court examined the totality of the circumstances leading to Officer Read's stop of the Diaz tractor-trailer. It concluded that the observation of the tractor-trailer twice deviating from its lane would warrant a person of reasonable caution that the driver that been driving in a careless or imprudent manner, without due regard for the width, grade, curves, corners traffic and use of the streets and highways and all other attendant circumstances. The court further noted that Mississippi state law, while not binding, supported the contention that an officer's observation of one or more lane-line incursions justified a traffic stop pursuant to the state's careless driving statute.

The Court thus reversed and remanded the case to the district court for further proceedings, explaining that on remand, the district court should consider the parties' remaining arguments as to the constitutional of the stop and ensuing search.

Panel: Circuit Judges Sack, Wesley, and Hall

Argument Date: June 3, 2015

Argument Location:
New York

Date of Issued Opinion: September 8, 2015

Docket Number: Nos. 14-2505, 14-2689

Decided: Reversed and Remanded

Case Alert Author: Elizabeth Perreca

Counsel: Joshua A. Naftalis, for Preet Bharara, United States Attorney for the Southern District of New York, for Appellant, Susan Jewell Walsh, Vladeck, Waldman, Elias & Engelhard, P.C., for Defendant-Appellee and Jesse M. Siegel, for Defendant-Appellee. Terry Neill Grimes, Grimes & Williams, P.C., for Plaintiff-Appellant Clinton Stephen Morse and Joseph M. Rainsbury, LeClairRyan, for Defendant-Appellee

Author of Opinion: Judge Sack

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 09/08/2015 09:40 PM     2nd Circuit     Comments (0)  

September 4, 2015
  U.S. v. Weaver - D.C. Circuit
Headline: Split D.C. Circuit panel holds exclusionary rule can apply to knock-and-announce violations

Area of Law: Fourth Amendment

Issue(s) Presented: Whether the exclusionary rule applies to knock-and-announce violations in the context of arrest warrants.

Brief Summary: Appellant Michael Weaver was arrested in his home by Bureau of Alcohol, Tobacco, Firearms, and Explosives agents executing n warrant for his arrest on drug trafficking charges. The agents serving the warrant identified themselves as "police" but did not announce that they had a warrant for Weaver's arrest. During the course of the arrest, the agents observed large quantities of drugs and cash in Weaver's kitchen. They subsequently applied for and received a search warrant on the basis of that observation, and evidence seized pursuant to that warrant led to additional drug possession and distribution charges. Weaver unsuccessfully moved to suppress evidence from the search warrant at trial, contending that the warrant derived solely from the observations agents made while executing the arrest warrant and that the agents were not legally authorized to be in his apartment when they made those observations because they had violated the knock-and-announce rule. The U.S. District Court for the District of Columbia found that there had been no knock-and-announce violation because the officers knocked, announced "police," and then waited a reasonable time before opening the door. The court also concluded that, even if there had been a violation, Weaver was not entitled to suppression because the Supreme Court's decision in Hudson v. Michigan, 547 U.S. 586 (2006), held the exclusionary rule inapplicable to knock-and-announce violations generally.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed. On appeal, the government conceded that the agents executing the arrest warrant did violate the knock-and-announce rule by failing to announce their purpose before entering Weaver's apartment. The D.C. Circuit then went on to hold that Hudson was not controlling outside the context of a search warrant. The court's analysis focused on the difference between search and arrest warrants and the privacy interests they implicate. Because a search warrant provides government agents with a "judicially-sanctioned prerogative to invade the privacy of the home," the court reasoned that the knock-and-announce rule, which governs only the manner in which the agents may enter the home, does not have any impact on what agents can view or seize once they have gained entry. An arrest warrant, by contrast, reflects no grant of authority to search the home. Because an individual subject to an arrest warrant retains a "robust privacy interest in [his] home's interior" protected by the knock-and-announce rule, the court held that the exclusionary rule could be an appropriate remedy for a violation.

Judge Henderson dissented, arguing that the exclusionary rule did not apply to a violation of the knock-and-announce requirement under any circumstances.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/13-3097-1571524.pdf.

Panel (if known): Henderson, Rogers, and Pillard

Argument Date (if known): February 10, 2015

Date of Issued Opinion: September 4, 2015

Docket Number: 13-3097

Decided: Reversed

Case Alert Author: Ripple Weistling

Counsel (if known): Beverly G. Dyer and A.J. Kramer for Appellant.

Patricia A. Heffernan, Ronald C. Machen, Jr., Elizabeth Trosman, Elizabeth H. Danello, and John P. Dominguez for Appellee.

Author of Opinion: Pillard

Dissent: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 09/04/2015 01:56 PM     DC Circuit     Comments (0)  

September 2, 2015
  National Ass'n for the Advancement of Multijurisdiction Practice v. Castille - 3rd Circuit
Headline: Third Circuit Upholds Constitutionality of Pennsylvania Rule Limiting Ability of Out-of-State Attorneys to Gain Admission to Pennsylvania Bar without Taking PA Bar Exam

Area of Law: Constitutional Law

Issues Presented: Whether Pennsylvania Bar Admission Rule 204, which allows an attorney to join the Pennsylvania Bar by motion, is constitutional.

Brief Summary: Pennsylvania Bar Admission Rule 204 ("Rule 204") allows attorneys from other states to be admitted to practice law in Pennsylvania without taking the Pennsylvania Bar exam, provided they meet a number of conditions, including that they have graduated from an accredited law school and that they have either passed the bar or practiced law for a "major Portion" of five of the preceding seven years in a reciprocal state. Reciprocal states are those states which allow Pennsylvania attorneys the same right to be admitted to practice law in their states without needing to pass the bar as Pennsylvania does for their attorneys. This case was brought by attorneys from two states - Maryland and New Jersey - which do not have reciprocity agreements with Pennsylvania. They argued that Rule 204 was unconstitutional because it violated the Equal Protection Clause of the 14th Amendment to the United States Constitution, as well as the First Amendment, the Privileges and Immunities Clause and the Dormant Commerce Clause. The Third Circuit held that Rule 204 does not violate any of these constitutional provisions.

Extended Summary: The plaintiffs' first claim was that Rule 204 violated the Equal Protection Clause of the 14th Amendment to the United States Constitution. Among other things, the Equal Protection Clause protects a citizen's fundamental right to travel. The Third Circuit, however, found that Rule 204 does not interfere with that right. Attorneys from non-reciprocal states are still allowed to come and practice law in Pennsylvania - they just need to pass the same bar exam that attorneys from Pennsylvania need to pass. The Court also found that the rule is not subject to heightened scrutiny because it does not discriminate based on a suspect class, such as race, religion or national origin.

Plaintiffs next argued that Rule 204 violates their First Amendment rights to free speech and free association. The Court disagreed. The rule does not discriminate based on the content of the plaintiffs' speech nor does it prohibit professional speech. All it does is require the plaintiffs to take an exam if they wish to act as attorneys in Pennsylvania. Regulation of professional speech is permissible so long as there is a rational connection with the applicant's ability to practice in the profession. A requirement that attorneys take and pass a bar examination certainly meets that test. The Court also found no interference with free association because the plaintiffs were still free to advance their viewpoints and because the rule was not meant to punish them for those viewpoints or for their memberships in bar associations from nonreciprocal states.

Finally, plaintiffs argued that Rule 204 violated the Privileges and Immunities Clause of Article IV of the United States Constitution, which bars discrimination against citizens of other states based merely on the fact that they are citizens of another state. While the Third Circuit agreed with plaintiffs that the right to practice law is one of the fundamental rights protected by that clause, it still found no violation. The Court noted that in order for the Clause to apply, a state must regulate based on residency status. But that is not what Rule 204 does. It regulates based on an applicant's state of bar membership, not his or her residency. This means that a Pennsylvania resident who is only a member of the New Jersey bar would be just as ineligible for reciprocity treatment under Rule 204 as a resident of New Jersey who is also only a member of the New Jersey bar. Therefore, the Privileges and Immunities Clause does not apply.
Accordingly, the Third Circuit held that Rule 204 was constitutional, thereby affirming the district court judgment.

To see the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/151481p.pdf

Panel (if known): Chagares, Krause, and Barry, Circuit Judges

Argument Date: June 25, 2015

Date of Issued Opinion: August 26, 2015

Docket Number: No. 15-1481

Decided: Affirmed

Case Alert Author: Sarah Kiewlicz

Counsel: Joseph R. Giannini, Esq. for appellants; Michael Daley, Esq. for appellees

Author of Opinion: Judge Krause

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 09/02/2015 08:59 AM     3rd Circuit     Comments (0)  

August 28, 2015
  FTC v. Wyndham Worldwide Corp. - Third Circuit
Headline: Third Circuit Rules That FTC Can Penalize Weak Cybersecurity at Wyndham Hotels

Area of Law: Cyber Law, Administrative Law

Issues Presented: Does the FTC have authority to regulate cybersecurity under the unfairness prong of § 45(a) and, if so, did Wyndham have fair notice its cybersecurity practices could fall short of that provision?

Brief Summary: The Fair Trade Commission ("FTC") brought suit against Wyndham Worldwide Corporation, a hotel and hospitality company, after three cyberattacks released Wyndham's customers' private data to hackers. At trail, Wyndham argued that the FTC did not have the authority to regulate cybersecurity as an "unfair practice" and that the FTC did not give Wyndham fair notice that its cybersecurity fell short of FTC requirements. When the District Court ruled against Wyndham on these issues, it appealed to the Third Circuit Court of Appeals. The Third Circuit ruled that cybersecurity breaches could constitute "unfair practices" as defined by the statute because they can cause substantial injury to customers. The Court also found that Wyndham did have fair notice that inadequate cybersecurity could constitute unfair practices because the law defines unfair practices as those which can cause substantial injury to consumers. Bad cybersecurity procedures certainly qualify. Moreover, Wyndham had notice that its particular cybersecurity systems could be problematic because they lacked even basic protections, such as firewalls, encryption and strong passwords.

Extended Summary: Wyndham Worldwide is a hotel and hospitality company. Every hotel in the Wyndham system has a property management system that holds customers' names, addresses, telephone numbers, credit card data, and other sensitive information. The hotels all connect their individual property management systems to Wyndham's centralized computer network in Phoenix, Arizona. Because Wyndham did not have effective cybersecurity protection, the Wyndham network was hacked on three separate occasions in 2008 and 2009. The hackers were able to retrieve the private data of over 600,000 Wyndham customers, resulting in $10.6 million lost to fraud. The Federal Trade Commission ("FTC") found that Wyndham had numerous cybersecurity practices which resulted in these breaches. The FTC also alleged that even after the hacks, Wyndham failed to take reasonable measures to improve its cybersecurity. The FTC filed a claim against Wyndham claiming it engaged in unfair and deceptive practices in violation of § 45(a) of the Federal Trade Commission Act (the "Act"). Wyndham filed a motion to dismiss but was denied by the District Court, which then certified the decision on the unfairness claim for interlocutory appeal.

In 1994, Congress amended the Act to clarify the meaning of the term unfair act or practice. According to that amendment, an act is not unlawful unless it "causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition." But Wyndham argued that the Act imposed additional limitations on FTC action, including a requirement that the conduct complained of be "unfair" according to that word's ordinary meaning. Assuming, for purposes of argument, that this was true, the Court found that the requirement of unfairness was more than satisfied in this case because Wyndham advertised to its customers that it had installed strong cybersecurity measures in all of its computer networks - something which it had not, in fact, actually done. Wyndham also argued that it should not be held accountable because it was attacked by criminals, the hackers. The Court, however, was not persuaded by this argument considering that Wyndham made no attempt to fix their cybersecurity problems after the first and second attacks.

Wyndham also argued the FTC had failed to give it fair notice as to exactly what kind of practices were actionable. Wyndham insisted that it was entitled to ascertainable certainty as to the actual type of cybersecurity required by the Act. The Court disagreed. It determined that fair notice was satisfied if the company could reasonably foresee that a court could construe its conduct as falling within the meaning of the statute. And in this case, it was clear that Wyndham's cybersecurity was not acceptable. It didn't just have weak firewalls and weak encryption - in many cases, it had no firewalls and no encryption at all. It didn't even require its clients to change passwords. The Court relied on cost/benefit analysis to show that Wyndham could have easily made small changes that would have prevented attacks and fallen within its duties to its customers under the Act. For these reasons, the Third Circuit affirmed the decision of the District Court.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/143514p.pdf

Panel (if known): Ambro, Scirica, and Roth, Circuit Judges

Argument Date: March 3, 2015

Date of Issued Opinion: August 24, 2015

Docket Number: No. 14-3514

Decided: Affirmed

Case Alert Author: Shanna Lafferty

Counsel: Kenneth W. Allen, Esq., Eugene F. Assaf, Esq., Christopher Landau, Esq., Susan M. Davies, Esq., Michael W. McConnell, Esq., David T. Cohen, Esq., Douglas H. Meal, Esq., Jennifer A. Hradil, Esq., Justin T. Quinn, Esq., Counsel for Appellants, Jonathan E. Nuechterlein, Esq., David C. Shonka, Esq., Joel R. Marcus, Esq., David L. Sieradazki, Esq., Counsel for Appellee, Sean M. Marotta, Esq., Catherine E. Stetson, Esq., Harriet P. Pearson, Esq., Bret S. Cohen, Esq., Adam A. Cooke, Esq., Kate Comerford Todd, Esq., Steven P.Lehotsky, Esq., Sheldon Gilbert, Esq., Banks Brown, Esq., Karen R. Harned, Esq., Counsel for Amicus Appellants Chamber of Commerce of the U.S.A.; American Hotel & Lodging Association; National Federation of Independent Business, Cory L. Andrews, Esq., Richard A. Samp, Esq., John F. Cooney, Esq., Jeffrey D. Knowles, Esq., Mitchell Y. Mirviss, Esq., Leonard L. Gordon, Esq., Randall K. Miller, Esq., Counsel for Amicus Appellant Electronic Transactions Association; Washington Legal Foundation, Scott M. Michelman, Esq., Jehan A. Patterson, Esq., Counsel for Amicus Appelees Public Citizens Inc; Consumer Action; Center for Digital Democracy, Marc Rotenberg, Esq., Alan Butler, Esq., Julia Horwitz, Esq., John Tran, Esq., Catherine N. Crump, Esq., Chris Jay Hoofnagle, Esq., Justin Brookman, Esq., G.S. Hans, Esq., Lee Tien, Esq., Counsel for Amicus Appellees Electronic Privacy Information Center; American Civil Liberties Union; Samuelson Law; Technology & Public Policy Clinic; Center for Democracy & Technology; Electronic Frontier Foundation

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 08/28/2015 08:40 AM     3rd Circuit     Comments (0)  

  National Collegiate Athletic Association, et al. v. Governor of the State of New Jersey, et al. - Third Circuit
Headline: New Jersey Sports Gambling Not Allowed Under Federal Law

Area of Law: Sports gambling

Issue Presented: Whether New Jersey's law which partially repeals certain prohibitions on sports gambling violates federal law?

Brief Summary: In 2014, New Jersey's legislature passed a law which partially repealed New Jersey's statewide ban on sports gambling. The new law allowed sports betting at casinos and racetracks. Five sports leagues (the "Leagues") sought to enjoin New Jersey from giving effect to its law on the grounds that the partial repeal violated the Professional and Amateur Sports Protection Act ("PASPA"), a federal statute which makes it unlawful for a state to "authorize by law" sports betting. The Third Circuit Court of Appeals held that a partial repeal equated to an authorization in violation of PASPA. New Jersey has multiple laws prohibiting sports gambling that were not repealed by its 2014 law. The selectivity of the law partially repealing New Jersey's prohibitions on sports gambling permitted certain entities to engage in sports gambling while not permitting others to engage in sports gambling, resulting in an authorization by law for those entities permitted to engage in it. In addition, New Jersey did not enact a sports gambling scheme when Congress offered to allow New Jersey to do so within one year of PASPA's enactment.

Extended Summary: This case concerns New Jersey's partial repeal of its prohibitions on sports gambling. In 2014, New Jersey's legislature passed SB 2460 which partially repealed certain prohibitions on sports gambling. The law limited sports wagering to people twenty-one years or older and to casinos and racetracks. The law also prohibited wagering on New Jersey college teams and on any collegiate competition occurring in New Jersey. Five sports leagues (the "Leagues") sought to enjoin New Jersey from giving effect to its law on the grounds that the partial repeal violated a federal statute, the Professional and Amateur Sports Protection Act ("PASPA").

PASPA provides that a governmental entity cannot license or authorize by law sports gambling. In 2011, New Jersey amended its constitution to allow the state legislature to authorize by law sports gambling. In 2012, the New Jersey Legislature enacted the Sports Wagering Act, which established an elaborate licensing system for sports gambling at casinos and racetracks. The Leagues challenged this law as a violation of PASPA in National Collegiate Athletic Ass'n v. Governor of New Jersey (Christie I). The Third Circuit agreed, and the law was overturned. New Jersey had argued that PASPA was unconstitutional under the anti-commandeering doctrine, which prohibits the federal government from requiring state legislatures to keep existing laws in place. But the Court held that PASPA did not require New Jersey to keep its ban on sports gambling in place, but rather prevented it from passing new laws authorizing gambling. Because that is what the new law did -- authorize sports gambling through an elaborate licensing procedure -- the law was prohibited by PASCA. If New Jersey had repealed all of its laws on sports gambling, then the law would have been permissible.
In response to the Christie I decision, New Jersey tried once again in 2014 to allow sports gambling by passing SB 2460. Instead of setting up a system that regulated sports gambling, the new law repealed all state laws and regulations that authorized, licensed or prohibited sports gambling at casinos and racetracks in New Jersey. The Leagues challenged this new law, arguing that it authorized by law sports gambling in contravention of PASPA. New Jersey countered that the law was permissible under the decision in Christie I because it was a repeal of gambling laws, and Christie I specifically said that a repeal of all sports gambling laws would be permissible. If the laws are repealed, Christie I held that the authorization to gamble would come not from the state but from the inherent powers retained by the people.

The Court concluded that the 2014 law violated PASPA and Christie I because it was only a partial repeal of the sports gambling law in the state. Sports gambling outside of casinos and racetracks was still not allowed. And even at casinos and racetracks, the state continued to prohibit gambling on New Jersey collegiate athletics and for people under 21. The court reasoned that this selective repeal meant that the state was, in effect, authorizing gambling, because it was allowing sports gambling in some situations but not in others. Only if the state completely removed itself from gambling decisionmaking would it be in compliance with PASPA's prohibition on state authorization of gambling. But New Jersey had multiple laws prohibiting sports gambling that were not repealed by its 2014 law.
As further support for its decision, the Court noted that Congress had included an exception in PASPA that gave New Jersey the opportunity to create its own sports gambling scheme so long as it did so within one year of PASPA's enactment. New Jersey did not choose to do so. By offering to include a sports gambling scheme for New Jersey as an exception to PASPA, the Congress clearly believed that a sports gambling scheme in New Jersey would otherwise violate PASPA.
Judge Fuentes filed an opinion dissenting from the majority opinion.
To see the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/144546p.pdf

Panel (if known): Rendell, Fuentes and Barry, Circuit Judges

Date of Argument: March 17, 2015

Date of Issued Opinion: August 25, 2015

Docket Numbers: Nos. 14-4546, 14-4568, and 14-4569

Decided: District Court's grant of summary judgment and permanent injunction is affirmed.

Case Alert Author: Sarah Adams

Counsel: John J. Hoffman, Esq., Jeffery S. Jacobson, Esq., Geoffrey S. Brounell, Esq., Stuart M. Feinblatt, Esq., Ashlea D. Newman, Esq., Peter M. Slocum, Esq., Matthew Hoffman, Esq., Ashley E. Johnson, Esq., Theodore B. Olson, Esq., Matthew D. McGill, Esq., counsel for Appellants Governor of the State of New Jersey, David L. Rebuck and Frank Zanzuccki in 14-4546; Elliott M. Berman, Esq., Ronald J. Riccio, Esq., Edward A. Hartnett, Esq., counsel for Appellant New Jersey Thoroughbred Horseman's Association, Inc. in 14-4569; Michael R. Griffinger, Esq., Thomas R. Valen, Esq., Jennifer A. Hradil, Esq., counsel for Appellants Stephen M. Sweeney and Vincent Prieto in 14-4568; Paul D. Clement, Esq., Erin E. Murphy, Esq., William R. Levi, Esq., Taylor Meehan, Esq., Jeffery A. Mishkin, Esq., Anthony J. Dreyer, Esq., William J. O'Shaughnessy, Esq., Richard Hernandez, Esq., counsel for Appellees National Collegiate Athletic Association, National Basketball Association, National Football League, National Hockey League and Office of the Commissioner of Baseball; Joyce R. Branda, Esq., Paul J. Fishman, Esq., Scott R. McIntosh, Esq., Peter J. Phipps, Esq., counsel for Amicus United States of America.

Author of Opinion: Judge Rendell

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 08/28/2015 08:35 AM     3rd Circuit     Comments (0)  

August 27, 2015
  Arpaio v. Obama - D.C. Circuit
Headline: D.C. Circuit rules Arizona sheriff lacks standing to challenge immigration enforcement policies

Area of Law: Immigration; Administrative Procedure Act

Issue(s) Presented: Whether a county sheriff who claimed that changes to immigration policy would result in increased burdens on law enforcement in the county alleged an injury sufficient to confer standing to challenge those changes.

Brief Summary: Appellant Joseph Arpaio, the sheriff of Maricopa County, Arizona, challenged two Department of Homeland Security policies setting priorities for immigration enforcement, Deferred Action for Childhood Arrivals ("DACA") and Deferred Action for Parents of Americans ("DAPA"). Both deferred action on deportation of certain individuals unlawfully residing in the United States who were not deemed to be a threat to national security, border security, or public safety, in order to allow DHS to prioritize enforcement efforts against individuals who did pose such a threat. Arpaio filed suit in the U.S. District Court for the District of Columbia, seeking a declaration and preliminary injunction that DACA and DAPA violated the Administrative Procedure Act, the faithfully executed clause, and the non-delegation doctrine. The district court denied the injunction and dismissed the complaint for lack of subject matter jurisdiction, concluding that Arpaio's claim stated a non-justiciable "generalized grievance" and finding that his alleged injury was "largely speculative." The U.S. Court of Appeals for the District of Columbia Circuit affirmed.

Arpaio claimed that his office would be forced to spend more money policing Maricopa County and running its jails because the changes in immigration policy would increase the crime rate, either because deferred action would act as a magnet drawing more undocumented immigrants to the county or because decreasing deportation would allow more undocumented immigrants to remain there. Because Arpaio's claim to declaratory and injunctive relief rested on predicted injury in the future, the court emphasized that he faced "a more rigorous burden" to establish standing. While acknowledging that increased expenditures on law enforcement in the future would constitute a concrete injury, the court found that the connection between those expenditures and DACA and DAPA was unduly speculative. Because the challenged policies applied only to immigrants without serious criminal records already living in the United States as of January 2010, any increase in the number of foreign citizens unlawfully entering the United States in the mistaken belief that DACA and DAPA would allow them to remain would lack a legitimate causal connection to the challenged policies. The court distinguished Arpaio's claim from the Fifth Circuit's recent decision in Texas v. United States, 787 F.3d 733 (5th Cir. 2015), holding that the state of Texas had standing to challenge DAPA because it increased the number of people eligible for Texas drivers' licenses by approximately 500,000, directly resulting in a substantial financial burden on the state, which spent roughly $130 on every driver's license it issued.

The court also rejected Arpaio's argument that he was entitled to a more lenient assessment of his concrete injury because he alleged a procedural injury stemming from a violation of the Administrative Procedure Act. The court held that a plaintiff in a procedural injury claim must still show that the agency action was the cause of the injury, and that Arpaio had failed to demonstrate that DACA and DAPA increased unlawful immigration and that unlawful immigration in turn, led to an increase in crime. Finally, the court was unpersuaded by Arpaio's alternative argument that crime would increase in Maricopa County because fewer unlawful immigrants would be deported under DACA and DAPA. The court determined that the policies shifted deportation priorities to unlawful immigrants who present a threat to public safety and national security without any decrease in the overall number of deportations. If the policies were successful, the court concluded, they should lead to a decrease, rather than an increase, in crime in Maricopa County and elsewhere.

Judge Brown wrote separately to express concern that standing had become too restrictive.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/14-5325-1567834.pdf.

Panel (if known): Brown, Srinivasan, Pillard

Argument Date (if known): May 4, 2015

Date of Issued Opinion: August 14, 2015

Docket Number: 14-5325

Decided: Affirmed

Case Alert Author: Ripple Weistling

Counsel (if known): Larry Klayman for Appellant.

Beth S. Brinkmann, Benjamin C. Mizer, Ronald C. Machen Jr., Scott R.McIntosh, Jeffrey Clair, and William E. Havemann for Appellee.

Author of Opinion: Pillard

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/27/2015 08:27 AM     DC Circuit     Comments (0)  

August 21, 2015
  Han Lee v. Superintendent Houtzdale SCI - Third Circuit
Headline: Habeas Relief Granted Where Admission of Scientific Evidence That Has Been Discredited by Subsequent Scientific Developments Undermined the Fundamental Fairness of the Entire Trial and the Commonwealth Did Not Provide Ample Other Evidence of Guilt

Area of Law: Criminal

Issues Presented:
1. Did the admission of fire-science and gas chromatography evidence that has since been discredited by subsequent scientific developments undermine the fundamental fairness of the entire trial because its probative value was greatly outweighed by the prejudice to Lee?
2. Did the Commonwealth provide ample other evidence of guilt beyond a reasonable doubt?

Brief Summary:
Appellee Han Tak Lee was convicted of murdering his daughter based primarily on scientific evidence that has been discredited by subsequent scientific developments since his trial in 1990. Lee filed a §2254 habeas petition claiming that his conviction and continued incarceration violate due process. The District Court granted habeas relief.
The Third Circuit Court affirms. The Court finds that the admission of the now-debunked fire-science and gas chromatography evidence undermined the fundamental fairness of the entire trial, and that the three sources of remaining evidence that the Commonwealth provided are not sufficient to prove guilt beyond a reasonable doubt. Accordingly, the Court holds that the District Court did not commit plain error by granting habeas relief.

Extended Summary:
Han Tak Lee's daughter, Ji Yun Lee, suffered from severe mental illness throughout her life. After she had a manic episode in July 1989, Han Tak Lee took his daughter to a religious retreat in Monroe County, Pennsylvania. Soon after arriving, Ji Yun went for a walk and returned several hours later soaking wet because she had jumped into a body of water. Later that day, she became agitated and had to be physically restrained. That night a fire began in the Lees' cabin. Han Tak escaped, but his daughter died.
The Commonwealth charged Han Tak Lee with arson and murder. During the eight-day trial, the Commonwealth relied heavily on fire science and gas chromatography evidence to argue that Lee intentionally set the fire to kill his daughter. The defense countered that Ji Yun set the fire as a suicidal act. Lee was convicted on both charges and sentenced to life imprisonment without the possibility of parole.
During an evidentiary hearing on ineffective-assistance-of-counsel claims, the court received evidence about developments in the field of fire science that the panel stated "provided ample reason to question the reliability of the arson investigation." The state court nonetheless denied Lee's claims.
Lee later filed a §2254 habeas petition claiming that (1) his conviction violated due process because it was based on inaccurate and unreliable evidence, and (2) his continued incarceration also lacked due process because newly developed scientific evidence showed he was probably innocent. After the District Court denied Lee's petition and request for an evidentiary hearing, a panel of the Third Circuit Court reversed and ordered the District Court to grant discovery and then reconsider whether to hold an evidentiary hearing. The Court instructed that Lee "must show that the admission of the fire expert testimony undermined the fundamental fairness of the entire trial" because its probative value is greatly outweighed by the prejudice to Lee. The Court also implied that habeas relief should be denied if there is "ample other evidence of guilt."
On remand, following the evidentiary hearing, the Magistrate Judge issued a Report & Recommendation (R&R) finding that the admission of the fire expert testimony undermined the fundamental fairness of the entire trial because the "verdict rest[ed] almost entirely upon scientific pillars which have now eroded." He also found that the Commonwealth failed to show ample other evidence of guilt upon which the jury could have relied. The District Court adopted this R&R without changes and issued an order granting habeas relief unless the Commonwealth retried or released Lee within 120 days. Superintendent Houtzdale and the District Attorney of Monroe County appealed.
On appeal, the Commonwealth did not challenge the determination that the admission of the fire expert testimony undermined the fundamental fairness of the entire trial. The Commonwealth did not object to the Magistrate Judge's assessment of the fire-science and gas chromatography evidence presented at trial, and it conceded that due to scientific developments since Lee's trial in 1990, the bases for all of the fire-science evidence and gas chromatography evidence are now invalid. The Commonwealth only argued that the District Court erred by accepting the Magistrate Judge's conclusion that the trial lacked "ample other evidence of guilt."
The Commonwealth argued that three remaining sources of evidence provided ample other evidence of guilty. First, Monroe County Coroner Robert Allen and Forensic Pathologist Isidore Mihalikis concluded that the cause and manner of death were conflagration and homicide. They both testified that there were minimal or tiny hemorrhages in the upper portion of Ji Yun's neck that suggested strangulation, suffocation, or pressure in the neck. They concluded that this, minimal smoke deposits in the Ji Yun's windpipe and lungs, and a slight elevation of her carbon monoxide levels were all consistent with Ji Yun being strangled before the fire was started.
However, the Magistrate Judge noted, and the Court agrees, that this inference was weak. Both Allen and Mihalikis acknowledged that the autopsy results were consistent with Ji Yun dying by a flashover rather than strangulation, and there was no evidence of petechiae, tiny ruptures of the capillaries, that are present in most strangulation cases. Further, the Court noted that their conclusion that the manner of death was homicide was almost certainly colored by the now-debunked fire-science evidence.
Second, the Commonwealth relied on testimony that in the hours and days after the fire Lee's demeanor showed little sign of grief as a remaining source of evidence. The Magistrate Judge characterized this as "a cultural stoicism which was construed as nonchalance."
Third, the Commonwealth asserted that there was evidence attacking the veracity of Lee's account of what happened the night of the fire. It first points to Lee's testimony that when he walked out the front door, the fire was in the back of the house. This is inconsistent with testimony from two firefighters on the scene that the fire started in the front of the cabin and then traveled to the back. The Commonwealth also pointed to other inconsistencies in six different accounts Lee gave of what happened the night of the fire; however, the Court notes that the basic outline of events remained the same across each account. Further, the Court states that most of the "inconsistencies" identified by the Commonwealth are better characterized as "minor details mentioned on some occasions and omitted on others." The District Court also characterized these discrepancies as "minor," noting that they could be explained by errors in translation from Korean to English.
The Court finds these three sources of evidence unconvincing. It states that, based on the evidence identified by the Commonwealth, it cannot conclude that the District Court committed plain error by adopting the R&R. Accordingly, the Court finds that the Commonwealth has not pointed to ample evidence sufficient to prove guilt beyond a reasonable doubt, and it affirms the District Court's grant of habeas relief.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/143876p.pdf

Panel (if known): Ambro, Fuentes, and Greenberg, Circuit Judges

Argument Date: June 18, 2015

Date of Issued Opinion: August 19, 2015

Docket Number: 14-3876

Decided: Affirmed District Court's grant of habeas relief

Case Alert Author: Jaclyn Poulton

Counsel:
Counsel for Appellants:
Mark S. Matthews, Esq. and Matthew J. Bernal, Esq. (Monroe County District Attorney's Office)

Counsel for Appellee:
Peter Goldberger, Esq. and Pamela A. Wilk, Esq.

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/21/2015 03:09 PM     3rd Circuit     Comments (0)  

August 17, 2015
  In re: Steven S. Bocchino; U.S. Securities and Exchange Commission v. Steven S. Bocchino - Third Circuit
Headline: Gross Recklessness satisfies scienter requirement for non-dischargeability in bankruptcy.

Area of Law: Bankruptcy

Issues Presented: Is gross recklessness, as opposed to intent to defraud, enough to uphold a Bankruptcy Court's nondischargeability order?

Brief Summary:

Bocchino worked as a stockbroker and made two private placement investments with little or no information. Both of those investments turned out to be fraudulent and the principals were criminally convicted. The SEC then obtained civil judgments against Bocchino for improperly inducing the investors. In 2009, Bocchino filed for Chapter 13 bankruptcy. The Bankruptcy Court issued an order of nondischargeability for the SEC judgments which the District Court affirmed. Bocchino appealed, insisting that the standard for dischargeability was intent to defraud and that his actions were not a proximate cause. The Third Circuit held that the standard for nondischargeability is gross recklessness and that Bocchino's actions were undoubtedly a proximate cause of the failed investments.


Extended Summary:

Steven S. Bocchino appealed the final decision of the District Court that affirmed the Bankruptcy Court's order of nondischargeability of civil judgment debts. The nondischargeability order at issue related to civil judgments against Bocchino for two private placement investments he solicited in 1996 while affiliated with a brokerage firm. Bocchino worked as a stockbroker. The first investment involved an entity known as Traderz. Bocchino learned that Traderz "might go public" and that it might be supported by a popular fashion model. On these facts alone, Bocchino sought investments from clients and received over $40,000 in commissions from Traderz sales. The second private placement involved Fargo and the source of Bocchino's information was unclear. Bocchino only obtained cursory documentation about Fargo before soliciting sales. Bocchino, again, did no independent investigation into the quality of the investment. He received $14,000 in commissions for stock purchases in Fargo. Both Traderz and Fargo turned out to be fraudulent and the principals were criminally convicted.

The SEC brought two civil enforcement actions against those who sold investments in the entities and obtained a judgment ordering Bocchino to pay for disgorgement, prejudgment interest, and civil penalties for inducing investors through high pressure sales tactics and material misrepresentations. In total, Bocchino was liable for $178,967. Bocchino filed for Chapter 13 bankruptcy protection in 2009 and the SEC petitioned the Bankruptcy Court for a determination that the previous judgments were nondischargeable. The SEC contended that the funds were obtained by false pretenses, false representations, or actual fraud. The Bankruptcy Court ordered the civil penalties discharged, but retained the remaining $68,877 as nondischargeable. The Bankruptcy Court acknowledged that Bocchino believed his statements were true but determined that the scienter requirement may be satisfied by grossly reckless behavior. The Bankruptcy Court described Bocchino's actions as egregious and grossly reckless because, as an experienced stockbroker, he knew or should have known that an independent investigation into the quality of the product he was selling was imperative. The District Court affirmed.

On appeal, the Third Circuit noted that the Bankruptcy Code limits the opportunity of insolvency to those who are "honest but unfortunate." Bocchino did not fall into this category due to his gross recklessness, which satisified the knowledge and intent requirements of the nondischargeability provision, section 523(a)(2)(A) of the Bankruptcy Code. The Third Circuit looked to precedent which acknowledged that the provision does not explicitly require reliance, materiality or intentionality. The Third Circuit also examined the Restatement (Second) of Torts to determine that gross recklessness satisfies the common law scienter requirement. Finally, the Court looked to the Supreme Court's analysis of a related bankruptcy provision which determined that liability should be imposed for willful blindness. Therefore, the Third Circuit affirmed the District Court's holding that Bocchino's gross recklessness satisfied the scienter requirement.

The Third Circuit also held that proximate cause had been established because Bocchino's grossly reckless misrepresentations were a substantial factor in causing the investors' harm. It affirmed the District Court's judgment that the actions of Traderz and Fargo were not superseding causes.


Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/144299p.pdf

Panel: Chagares, Krause, and Van Antwerpen, Circuit Judges

Argument Date: Submitted Pursuant to Third Circuit LAR 34.1(a)

Date of Issued Opinion: July 23, 2015

Docket Number: No. 14-4299

Decided: Affirmed

Case Alert Author: Jessica Wood

Counsel:

J. Zac Christman, Esq. Counsel for Appellant
Tracey Hardin, Esq., Josephine T. Morse, Esq., Patricia H. Schrage, Esq. Counsel for Appellee

Author of Opinion: Van Antwerpen, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/17/2015 02:17 PM     3rd Circuit     Comments (0)  

  Michelle Jones v. SEPTA - Third Circuit
Headline: Third Circuit Holds That Suspension with Pay Does Not Constitute an "Adverse Employment Action" under the Substantive Discrimination Provision of Title VII.

Area of Law: Employment

Issue Presented: Does suspension with pay constitute an "adverse employment action" under the substantive discrimination provision of Title VII?

Brief Summary:
In 2011, Michelle Jones was fired by SEPTA where she had been employed for ten years. SEPTA stated that it dismissed Jones for submitting fraudulent timesheets. Jones alleged that her termination was the result of years of unlawful sexual harassment by her supervisor, gender discrimination, and retaliation. The district court entered summary judgment for SEPTA, primarily on the basis that Jones's initial suspension with pay did not constitute an "adverse employment action." In its opinion, the Third Circuit agreed and held that suspension with pay, without more, does not constitute an "adverse employment action" under the substantive discrimination provision of Title VII. The Court also analyzed Jones's claims based on her subsequent suspension without pay and termination, and found that Jones still failed to show a prima facie case for each of her claims. Accordingly, the Third Circuit affirmed the decision of the district court.

Extended Summary:
In 2001, Michelle Jones began working as an administrative assistant in the Revenue Operations Department of the Southeastern Pennsylvania Transportation Authority (SEPTA) under the supervision of Alfred Outlaw. On December 1, 2010, Outlaw suspended Jones with full pay after he discovered apparent fraud in her timesheets. Outlaw referred the timesheet matter to SEPTA's Office of Inspector General (OIG).

Promptly after being suspended with pay, Jones informed SEPTA's Equal Employment Opportunity (EEO) Office that she intended to file a complaint against Outlaw for sexual harassment and retaliation. SEPTA launched an internal investigation. SEPTA found one instance where Outlaw engaged in inappropriate behavior by asking Jones to step on his back to relieve spinal pain. As a result, Outlaw was required to attend a training session regarding SEPTA's sexual harassment policy and he received a demerit on his yearly evaluation. SEPTA's internal investigation was ended in March 2011 when Jones filed a complaint with the Pennsylvania Human Resources Commission alleging that Outlaw had sexually harassed her and other female employees, ordered her to do personal work for him during business hours, and retaliated against her for resisting this mistreatment by accusing her of timesheet fraud.

In February 2011, after an extensive investigation, OIG concluded that Jones collected pay for days she had not worked by submitting fraudulent timesheets. SEPTA suspended Jones without pay on February 22, 2011 and formally terminated her in April 2011. While SEPTA stated that it dismissed Jones for submitting fraudulent timesheets, Jones alleged she was fired because of years of sexual harassment, gender discrimination, and retaliation.

Jones filed suit against SEPTA and Outlaw for alleged gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Rights Act (PHRA), as well as for violations of the Fourteenth Amendment of the United States Constitution, common law wrongful termination, and retaliation in violation of the Family and Medical Leave Act.

The district court dismissed the wrongful termination claim and later granted summary judgment for SEPTA on all of the remaining claims. The district court held that Jones's claims failed because her initial suspension with pay was not an adverse action within the meaning of the employment discrimination laws.

The Third Circuit Court agreed, holding that a paid suspension, without more, does not constitute an adverse action in the substantive discrimination context. The Court explained that a paid suspension is neither a refusal to hire nor a termination, and it does not change compensation. Further, it is not a "serious and tangible" alteration of the "terms, conditions, or privileges of employment," because the terms and conditions of employment ordinarily include the possibility that an employee will be subject to an employer's disciplinary policies in appropriate circumstances.

The Court then analyzed whether the district court erred in granting summary judgment to SEPTA on Jones's claims based on her subsequent suspension without pay and termination. The Court affirmed the district court, finding that Jones failed to demonstrate "some causal nexus" between her gender and the alleged adverse treatment by SEPTA. The Court reasoned that the record lacked evidence supporting an inference that Jones's suspension without pay and termination were the product of discrimination instead of the natural result of SEPTA's investigation into the allegations of timesheet fraud. The Court also analyzed and rejected Jones's remaining claims and, thus, affirmed the decision of the district court granting summary judgment in favor of SEPTA.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/143814p.pdf.

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

Argument Date: March 23, 2015

Date of Issued Opinion: August 12, 2015

Docket Number: 14-3814

Decided: Affirmed

Case Alert Author: Jaclyn Poulton

Counsel:
Attorneys for Appellant, Michelle Precia Jones:
Olugbenga O. Abiona & Brian M. Rhodes

Attorneys for Appellees, SEPTA and Alfred Outlaw:
Danielle Banks & Michelle K. Carson (Stradley, Ronon, Stevens & Young)

Author of Opinion: Judge Hardiman

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 08/17/2015 10:54 AM     3rd Circuit     Comments (0)  

  United States of America v. Eli Chabot; Renee Chabot - Third Circuit
Headline: Third Circuit Holds Foreign Bank Account Records Fall Within Required Records Exception to Fifth Amendment

Area of Law: Constitutional law; Criminal law

Issues Presented: Does the Fifth Amendment privilege against self-incrimination protect foreign bank account records?

Brief Summary:

Eli and Renee Chabot appealed the District Court's decision to grant the IRS's petition to enforce summonses for foreign bank account records. The Third Circuit applied the Supreme Court's three-prong test for the required records exception and ultimately determined that the foreign bank account records were (1) for a regulatory purpose within the IRS; (2) customarily kept due to other statutes; and (3) related to public aspects. Therefore, the exception applied and the Third Circuit affirmed the District Court's decision to enforce summonses for the records.

Extended Summary:

Eli and Renee Chabot appealed the District Court's grant of the Internal Revenue Service's petition to enforce summonses for their foreign bank account records. The Third Circuit joined six other Circuits in holding that these records fall within the required records exception to the Fifth Amendment privilege and therefore affirmed the District Court's decision.

In April 2010, French authorities gave the IRS information regarding the Chabots' undisclosed bank accounts at HSBC Bank. The IRS alleged it had information for the years 2005 through 2007 from Pelsa Business Inc., of which Eli Chabot was the beneficial owner. The IRS issued summonses requesting that the Chabots appear to give testimony and produce documents about their foreign bank accounts. The Chabots notified the IRS that they were asserting their Fifth Amendment privilege against self-incrimination and would not produce the requested documents. The Chabots claimed that the act of producing the documents was protected under the Fifth Amendment even if the actual records sought were not protected. Additionally, they claimed that any exception to the Fifth Amendment privilege based on the required records exception should not apply in this case. The District Court held that the required records exception applied and the Fifth Amendment did not prohibit production of the documents. Thus, the District Court granted the IRS's petition to enforce summonses.

The Chabots argued that (1) allowing the government to rely on the required records exception to enforce the summonses in this case would lead to general governmental abrogation of the Fifth Amendment privilege for any "failure to report" crime; (2) the information that would be gleaned from compliance with the summonses is almost identical to what the government needs to charge the Chabots with the felony of willful failure to report an overseas account in the Report of Foreign Bank and Financial Accounts, thus requiring the Chabots to incriminate themselves; and (3) the records that the regulation requires account holders to keep do not satisfy the three-prong test for applying the required records exception to the Fifth Amendment privilege. Therefore, the question before the Third Circuit was whether the Chabots' account records fell within the required records exception to the Fifth Amendment privilege, and, if so, whether the Chabots' policy concerns defeated the application of this exception. The Third Circuit rejected the Chabots' arguments and found that their account records fell squarely within the required records exception to the Fifth Amendment privilege.

By producing documents, a person acknowledges that the documents exist, admits that the documents are in his or her custody, and concedes that the documents are those that the subpoena requests. The Supreme Court determined that three prongs are required in order for records to fall within the "required records" exception: (1) the reporting or recordkeeping scheme must have an essentially regulatory purpose; (2) a person must customarily keep the records that the scheme requires him to keep; and (3) the records must have "public aspects." As to the first prong, the Third Circuit determined that the government conditions participation in foreign banking on maintaining records and reporting that information. The foreign banking records are, thus, for regulation purposes through the IRS. As to the second prong, the Third Circuit explained that foreign bank account ownership is an activity that many people participate in and is not inherently criminal activity, nor are the regulations designed explicitly to target criminal activity. The Third Circuit also explained that holders of foreign bank accounts as a general group are likely to keep their records, as the regulations mandate, so that the records are considered "customarily kept." Lastly, the Chabots argued that their account records did not have public aspects as owning a foreign bank account is not a public activity. The Third Circuit explained that the Treasury Department circulates the data received by the records for the purpose of implementing economic, monetary, and regulatory public policies, thereby making the records public aspects. Thus, all three prongs of the required records exception to the Fifth Amendment privilege were satisfied.

The Third Circuit also determined that the Chabots failed to raise valid policy or other reasons as to why their bank account records should not be included in the required records exception to the Fifth Amendment privilege. The Third Circuit, thus, affirmed the District Court's grant of the IRS's petition to enforce its summonses.


Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/144465p.pdf

Panel: Ambro and Cohen, Circuit Judges, and Restani, Judge for the United States Court of International Trade, sitting by designation.

Argument Date: June 8, 2015

Date of Issued Opinion: July 17, 2015

Docket Number: No. 14-4465

Decided: Affirmed

Case Alert Author: Jessica Wood

Counsel:

Vivek Chandrasekhar, Esq., Richard A. Levine, Esq. Counsel for Appellants

Robert J. Branman, I, Esq., Robert W. Metzler, Esq. for Appellee

Author of Opinion: Restani, Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 08/17/2015 10:51 AM     3rd Circuit     Comments (0)  

August 14, 2015
  Jernigan v. Crane; Rosenbrahn v. Daugaard; and Waters v. Ricketts - Eighth Circuit
Headline Eighth Circuit panel affirms district court orders enjoining enforcement of Arkansas, South Dakota, and Nebraska laws denying same-sex couples the right to marry

Area of Law Same sex marriage

Issue(s) Presented Whether the district courts properly enjoined Arkansas, South Dakota, and Nebraska laws denying same-sex couples the right to marry, and whether those decisions should be vacated as moot in light of recent United States Supreme Court ruling.

Brief Summary Same-sex couples wishing to marry in Arkansas, South Dakota, and Nebraska filed complaints challenging the states' laws denying same-sex couples the right to marry. In each of the three cases, the district court held that the state law at issue violated the U.S. Constitution, and enjoined its enforcement. The states appealed.

While the appeals were pending, the United States Supreme Court decided Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that marriage is a fundamental right that may be exercised by same-sex couples. In light of the ruling, Arkansas, South Dakota, and Nebraska filed suggestions of mootness and moved the Eighth Circuit to vacate the district court judgments enjoining their marriage laws.

In three virtually identical opinions, the Eight Circuit denied each motion to vacate and affirmed the district court judgments. The Eighth Circuit noted that, under Obergefell, the challenged laws are unconstitutional. It held, however, that the Supreme Court's ruling did not moot these three cases. In Obergefell, the Supreme Court expressly invalidated only the laws challenged by the petitioners in that case - none