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November 24, 2014
  Dougherty v. School District of Philadelphia - Third Circuit
Headline: Third Circuit Adopts Broadened View of First Amendment Rights for Government Whistleblowers

Area of Law: First Amendment; Qualified Immunity

Issues Presented:

Does a public employee whistleblower have First Amendment protections when his speech concerns information gained during the course of his employment?

Does a violation of First Amendment rights of a public employee by a public official destroy qualified immunity?

Brief Summary:

Dougherty, a public employee of the Philadelphia School District, was fired after reporting to the Philadelphia Inquirer that the District Superintendent had improperly given a contract for installing security cameras to a company in violation of District procedures. The Third Circuit affirmed the district court in denying the School District and its' officials qualified immunity for their retaliation against Dougherty. The Third Circuit held that Dougherty's speech was entitled to First Amendment protections because the speech was not made pursuant to his duties as a public employee.

The Third Circuit also held that Dougherty had spoken as a citizen with regard to his allegations of impropriety. The Third Circuit reasoned that recent Supreme Court cases had clearly reinforced protection for employees to speak out on matters about which they learn on the job. The Third Circuit, balancing between the disruptive effects of Dougherty's speech and the value of whistleblowing, found in favor of Dougherty and refused to extend qualified immunity on the grounds that First Amendment protections were a clearly established right that School District officials could not violate and be entitled to immunity as public officials.

Extended Summary:

Francis Dougherty, an employee of the Philadelphia School District, was suspended and fired after revealing to the Philadelphia Inquirer that he believed the School District Superintendent had improperly steered a contract for security cameras to a minority-owned business. Dougherty was not involved in the final process for approving the assignment of the contract. After he reported the issue to the Philadelphia Inquirer, School District officials sought to determine the source of the leak. Their activities included hiring counsel, suspending six people including Dougherty, and ultimately firing him. The School District and various named defendant school district officials were denied qualified immunity by the district court. The Third Circuit affirmed the denial of qualified immunity and held both that Dougherty's speech was protected by the First Amendment and that his rights to free speech were clearly established.
The Third Circuit focused on whether Dougherty's whistleblowing was protected speech. The Third Circuit held that Dougherty had not been speaking pursuant to his public duties when he revealed the alleged misconduct of the Superintendent. The Third Circuit distinguished cases where a public employee was obligated to report information up the chain of command or where the speech related to the public employee's job. The Third Circuit refused to apply a "owes its existence to" test and instead adopted a fact intensive practical inquiry. Dougherty, the Third Circuit concluded, had no obligations or responsibilities in fact or under the law and therefore was entitled to First Amendment protection. The Third Circuit further held that the U.S. Supreme Court's recent decision in Lane v. Franks reinforces the holding of previous case law that a public employee may speak as a citizen even when the speech involves the subject matter of his or her employment.
After balancing the interests of the employee and those of the State, the Third Circuit then held that the legitimate interest in protecting whistleblowing was greater than the State's professed interest in promoting an efficient and harmonious workplace. The Third Circuit specifically distinguished cases where an employee was a proxy or alter ego for another, finding that Dougherty was removed enough from the District Superintendent so as to not tip the balance against him. The Third Circuit rejected the argument that Dougherty's actions were disruptive enough to tip the balance against him because the disruptions were minimal until the School District hired counsel, suspended multiple administrators, and subsequently fired Dougherty. Disruption, the Third Circuit held, cannot simply be the result of attempts to suppress the speech at issue.
Lastly the Third Circuit found that First Amendment protections are a clearly established right for public employees and that therefore the School District and its' officials were not entitled to qualified immunity because they had fair notice that retaliation against Dougherty for his speech would not be protected.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/133868p.pdf

Panel: Fisher, Jordan, Hardiman, Circuit Judges

Argument Date: September 9, 2014

Date of Issued Opinion: November 21, 2014

Docket Number: No. 13-3868

Decided: Affirmed

Case Alert Author: Philip Jones

Counsel:

Bacardi L. Jackson, Esq., Carl E. Jones, Jr., Esq., Joe H. Tucker, Jr., Esq., Corey M. Osborn, Esq., Christopher A. Lewis, Esq., Will J. Rosenzweig, Esq. (argued) for Appellants

Alice W. Ballard, Esq., Lisa A. Mathewson, Esq. (argued) for Appellees

Author of Opinion: Fisher, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 11/24/2014 10:35 AM     3rd Circuit     Comments (0)  

  United States of America v. Dwayne Thompson - Third Circuit
Headline: Delay in presenting a criminal defendant to a magistrate judge is unreasonable where the government exceeds the six-hour window if the government is in the pursuit of cooperation.

Area of Law: Federal Rules of Criminal Procedure

Issues Presented: Whether a law enforcement officer during a traffic stop had reasonable, articulable suspicion to extend a traffic search if the defendant was acting suspicious according to an officer's previous experience? Whether the government can exceed the statutory six-hour period of presenting a criminal defendant in front of a magisterial judge if the government is in pursuit of cooperation with the defendant?

Brief Summary: On June 29, 2007, Dwayne Thompson ("Thompson") was stopped by an officer of the Texas Department of Public Safety for exceesive speed limit on I-40, known to the law enforcement community as a corridor for narcotics, weapons, and money. The officer, Livermore, believed Thompson to be nervous during the traffic stop, and called a K-9 detection team. The K-9 alerted the officers at first pass. The officer found a large amount of marijuana in the bed of Thompson's truck and later six-kilograms of cocaine and arrested Thompson. Thompson was charged locally for the drugs, posted bond, and was released.
A few weeks later, Drug Enforcement Administration ("DEA") agents executed a search warrant at Thompson's residence, where the DEA agents found two kilograms of cocaine. The DEA agents arrested Thompson. Nearly 12 hours after his arrest, the DEA agent presented Thompson with a written waiver of his right to prompt presentment in front of a magisterial federal judge, which Thompson signed. Thompson was delivered for presentment nearly 48 hours after his initial arrest. Thompson pled guilty but retained his right to appeal the denial of the motion to suppress evidence seized at the Texas traffic stop and the denial of the motion to suppress statements obtained following the execution of search warrants at his home due to the delay to in presentment.
The Third Circuit affirmed the district court's ruling denying the motion to suppress the evidence from the Texas traffic stop. The Court reasoned that the officer had a reasonable and articulable suspicion to believe that Thompson was engaged in an illegal activity to extend Thompson's traffic stop due to the totality of the circumstances and the officer's previous experience with traffic stops. The Third Circuit vacated the district court's ruling denying the motion to suppress the confession. The Court explained that the government had plenty of time to give Thompson a waiver or present him in front of a magisterial judge after his arrest before the statutory limit of six hours, and the government seeking a criminal defendant to cooperate is an unreasonable delay according to the statute and the constitution.

Significance (if any):

Extended Summary: On June 29, 2007, Thompson was stopped by Trooper Livermore of the Texas Department of Public Safety for going over the speed limit on I-40, known to the law enforcement community as a corridor for narcotics, weapons, and money. Livermore believed Thompson to be nervous during the traffic stop, noticing lack of eye contact and a shaky voice, and asked to search the car. After Thompson refused, Livermore called a K-9 detection team. The K-9 alerted the officers at first pass. Livermore found a large amount of marijuana in the bed of Thompson's truck. Livermore arrested Thompson and later discovered six kilograms of cocaine in Thompson's truck. Thompson was charged locally for the drugs, posted bond, and was released.
A few weeks later, Drug Enforcement Administration ("DEA") agents executed a search warrant at Thompson's residence, where the DEA agents found two kilograms of cocaine. The DEA agents arrested Thompson, read him his Miranda rights, but did not have a separate Miranda waiver. At the end of the search, the DEA agents drove Thompson to the DEA field office in Los Angeles, which took approximately an hour and half. After processing, Thompson informed a DEA agent he was willing to cooperate. This was over six hours after his arrest. At this point, two DEA agents began interviewing Thompson about various cocaine sources and additionally tried to set up a reverse-buy-bust with Thompson's cooperation. Some 12 hours after his arrest, the DEA agent presented Thompson with a written waiver of his right to prompt presentment in front of a magisterial federal judge, which Thompson signed. Thompson was delivered for presentment nearly 48 hours after his initial arrest. Thompson pled guilty but retained his right to appeal the denial of the motion to suppress evidence seized at the Texas traffic stop and the denial of the motion to suppress statements obtained following the execution of search warrants at his home due to the delay to in presentment.
With respect to the motion to suppress the evidence at the Texas traffic stop, the Third Circuit determined that, in the light of Livermore's previous experience and the totality of the circumstances, he had a reasonable and articulable suspicion to believe that Thompson was engaged in an illegal activity to extend Thompson's traffic stop. In affirming the district court, the Third Circuit factored in the location of the stop in the Texas Drug Corridor and the nervous manner in which Thompson was acting.
The Third Circuit than examined whether the DEA's hold of Thompson for 12 hours before presenting him with a waiver of presentment, or in the alternative with presenting him in front of a magisterial judge after his arrest, was reasonable. The government argued it could not present Thompson to a judge because of the amount of time it took to search his residence, transport him to the DEA field office, and because the judge had a full docket. Additionally, the government maintained the delay in presentment was reasonable because it was for Thompson's cooperation in the reverse-buy-bust. The Third Circuit disagreed. The Third Circuit explained that the government could have put Thompson in front of a magisterial judge near his home, before processing him at the DEA field office, or shortly after the processing, or in the alternative had Thompson sign a waiver much earlier than 48 hours after his arrest. In addition, the Court declined to accept the government's argument with respect to the pursuit of cooperation, because there is almost no difference than the government in pursuit of cooperation and the government interrogating a suspect, and the difference would be solely the subjective intent of the officers. The Third Circuit vacated and remanded the district court's denial of the motion to suppress Thompson's confession.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/131874p.pdf.

Panel (if known): McKee, Chief Judge, Fuentes, and Greenaway, Jr., Circuit Judges.

Argument Date: June 25, 2014

Argument Location: Philadelphia, PA

Date of Issued Opinion: November 19, 2014

Docket Number: No. 13-1874

Decided: Affirmed in part and Vacated and remanded in part.

Case Alert Author: Ilya Gomelsky

Counsel: Michael L. Ivory, Esq., Rebecca R. Haywood, Esq., and David J. Hickton, Esq. for Appellee; Sarah S. Gannett, Esq., Brett G. Sweitzer, Esq. and Leigh M. Skipper, Esq. for Appellant.

Author of Opinion: Greenway, Jr., Circuit Judge.

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 11/24/2014 10:32 AM     3rd Circuit     Comments (0)  

November 18, 2014
  Patricia Franza v. Royal Carribbean-11th Circuit
Headline: Eleventh Circuit holds that a passenger may use actual or apparent agency principles to hold a cruise line vicariously liable for onboard medical negligence.

Area of law: Maritime

Issue: Whether a passenger may use apparent or actual agency principles to impute liability to a cruise line for onboard medical negligence.

Brief Summary: Appellant filed suit for medical negligence by a doctor and nurse on a cruise ship. The district court, finding no basis for either the actual agency or apparent agency claim, dismissed the complaint. The Eleventh Circuit reversed and remanded for further proceedings after finding that the claim could be brought under either basis.

Extended Summary: Pasquale F. Vaglio ("Vaglio"), an elderly cruise ship passenger, fell and suffered head injuries while a passenger on the vessel "Explorer of the Seas" which was docked in Bermuda. Vaglio sought medical attention from the ship's onboard nurse and doctor. He was ultimately transported to a hospital in Bermuda where he died. Patricia Franza ("Franza"), Vaglio's daughter filed a complaint alleging Royal Caribbean Cruise, Ltd. was vicariously liable for the purported negligence of the ship's doctor and its nurse, under actual or apparent agency theories. The district court applied the actual agency rule set forth in Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988) as a basis to dismiss the actual agency claim. The court also dismissed the apparent agency claim as inadequately pled.

The Eleventh Circuit, in a case of first impression, reversed. The appellate court found the complaint set out a basis for holding the cruise line liable under actual authority and rejected the line of authority relied on by the district court. In doing so, the court found the reasons for the Barbetta rule are no longer valid. Specifically, the court noted that passengers were regularly permitted to invoke vicarious liability in other maritime tort cases. Additionally, the court pointed to the widespread application of vicarious liability in medical negligence cases. Accordingly, the Eleventh Circuit found that the allegations of the complaint were sufficient to withstand the Rule 12(b)(6) motion to dismiss. The court also reversed as to apparent authority since the factual allegations supported a finding that the elements were adequately pled. Thus, the cause was reversed and remanded for further proceedings.

To view full opinion:

Text

Panel:Marcus and Anderson, Circuit Judges, and Goldberg (United States Court of International Trade Judge, sitting by designation).

Argument: May 22, 2014

Date of Issued Opinion: November 10, 2014

Docket Number: 13-13067

Decided: Reversed and Remanded

Case Alert Author: Arlene Marie Hernandez, Alain Enrique Roman, Greg Light, and Asheley Yvette Figueroa

Counsel: Phillip D. Parrish for Appellant Patricia Franza
Rodolfo Sorondo, Jr. for Appellee Royal Caribbean Cruises Ltd.

Author of Opinion: Judge Marcus

    Posted By: Gary Kravitz @ 11/18/2014 01:18 PM     11th Circuit     Comments (0)  

November 17, 2014
  Citizens United v. Gessler- Tenth Circuit
Headline: Tenth Circuit issues preliminary injunction against Colorado campaign disclosure laws, rules nonprofit group Citizens United qualifies for exemption from disclosure for film

Areas of Law: Constitutional Law

Issues Presented:

1. Does barring Citizens United from qualifying for an exemption from campaign disclosure laws as a media entity for its film, Rocky Mountain Heist, and its advertisements violate Citizens United's First Amendment rights?

Brief Summary:

Citizens United sought review of the district court's denial of a preliminary injunction barring the Colorado Secretary of State from enforcing its disclosure laws against its film, Rocky Mountain Heist, and its advertisements. Citizens United asserted that the Colorado disclosure provisions violated the First Amendment both on its face and as applied to Citizens United because it is treated differently from exempted media. The court held that the disclosure laws were likely to be found unconstitutional as applied to the film, and that a preliminary injunction should have been granted. The case was reversed and remanded. Judge Phillips issued an opinion concurring in part and dissenting in part, agreeing with the majority that the advertisements were not exempted from disclosure laws, but disagreeing with the majority's determination that the film was exempted from disclosure laws.

Extended Summary:

Non-profit organization Citizens United brought suit against the Colorado Secretary of State, challenging Colorado disclosure provisions as contrary to the First Amendment both on their face and as applied to Citizens United because it is treated differently from various media that are exempted from the disclosure provisions. The suit arises out of a film titled Rocky Mountain Heist, which is to be distributed through DVD, television, online streaming and downloading. Some of the advertising for the film mentions Colorado officials running for office, and shows footage of events in favor of, or against, specific candidates. The film falls under what Colorado's campaign-practices laws term "electioneering communications" and "independent expenditures." Citizens United also asked for a preliminary injunction against enforcing the provisions that do not apply to exempted media. The district court denied that injunction, giving rise to this appeal.

The majority reversed the district court without addressing Citizens United's facial challenge to the laws. The majority explained that because Citizens United was likely to succeed on the merits of the case, that it was entitled to the injunction. The court noted three things in particular in support of its decision that the Secretary had not shown a substantial relation between the government's interest in the disclosure requirements and treating Rocky Mountain Heist as an "electioneering communication" or "independent expenditure": "(1) the Colorado disclosure exemptions for printed periodicals, cable and over-the-air broadcasters, and Internet periodicals and blogs, (2) the rationale presented for these exemptions, and (3) Citizen United's history of producing and distributing two dozen documentary films over the course of a decade." Citizens United failed to show, however, that its advertisements should be exempted, because it failed to show how it would be treated differently from exempted media.

The majority began by noting that "electioneering communications are statements about candidates made shortly before an election," while expenditures are "money spent to endorse or oppose a candidate." It also quoted from the Colorado Constitution and Colorado's Fair Campaign Practices Act for the definition of independent expenditure as "an expenditure that is not controlled by or coordinated with any candidate or agent of such candidate." It also noted that the term "candidate" only means candidates for office in Colorado. Under the Colorado Constitution, any person who spends $1000 or more in one year on electioneering communications must make a report to the Secretary that includes the amounts spent, the name of the candidate in the communication, and the name, address, occupation and employer of anyone who donates more than $250 per year for the communication. The reports are due every two weeks in the two months before a general election, and a final report must be submitted 30 days after the election.

The court noted that the Secretary admitted an oversight of this section of the disclosure requirements at oral argument, explaining that he does not require disclosure because there is no communicative aspect to the production. Further, the disclosure requirements only require disclosure of amounts that are donated specifically for electioneering communications.

With respect to independent expenditures, the Colorado Constitution states that any person who makes an independent expenditure of $1000 or more in one year must give notice to the Secretary describing the use of the independent expenditure, stating the amount and the candidate the expenditure is intended to support or oppose. Anyone who wishes to make an independent expenditure or accept a donation to make an independent expenditure must create a committee and register with the secretary. If the person is a corporation, it must also report details about its corporate form and ownership structure. Finally, the person must maintain a separate bank account for independent expenditure purposes.

Any person that makes more than $1000 of independent expenditures in one year must report the amounts spent and the name, address, occupation, and employer of anyone who donated more than $250 for the making of an independent expenditure. Additionally, any donation over $20 for the making of an independent expenditure during the reporting period must be disclosed. The same timeline for electioneering communications applies, except that expenditures made within 30 days of a general or primary election must be reported 48 hours after obligating the money for an independent expenditure.

The majority explained that the expenditure laws would require disclosure of production costs if Rocky Mountain Heist attacked or supported a candidate, but did not require donations to be disclosed if they were not specifically earmarked for the purpose of supporting or attacking Colorado candidates.

Next the majority noted that any person who feels there has been a violation of the disclosure laws may seek enforcement by filing a complaint with the Secretary, who then refers it to an administrative law judge. If the judge finds a violation and the Secretary does not file an enforcement action within 30 days, the complainant may file suit in state district court. The penalty for violating the disclosure requirements is $50 per day for every day that the information is not filed. If the party fails to file three or more reports in a row, it is subject to a penalty of $500 per day for each day the report is not filed.

The court then set forth the exceptions excluded from the definition of expenditure listed in the Colorado Constitution and the statutes. It also noted that there are four exemptions from the definition of electioneering communication, three of which are practically the same as the expenditures exemption. The court noted that the Secretary has interpreted the first two exemptions broadly - for printed periodicals and broadcast facilities. Although there is a question as to whether something like a blog is a periodical, the Secretary stated that he uses court decisions as guidance for his decisions. The court noted that not all campaign-related activity by exempted media qualifies for an exemption. For example, an advertisement that expressly states support for a candidate, or opposes one may be treated as an electioneering communication or expenditure.

Citizens United filed for a Declaratory Order with the Secretary asserting that Rocky Mountain Heist and related advertisements were not electioneering communications or expenditures, arguing that the Federal Election Commission granted it an exemption from disclosure, and noting that the Federal Election Campaign Act of 1971 had definitions of electioneering communications and expenditures similar to Colorado's. The Secretary denied the order, holding that the film and advertising did not qualify for an exemption as print media, and that Citizens United is not a broadcast facility. Further, it stated that the regular-business exemption did not apply because the exemption only applied to persons who distribute content as a service, relying on Colorado Citizens for Ethics in Government v. Committee for the American Dream, 187 P.3d 1207 (Colo. Ct. App. 2008). Additionally, the Secretary stated that it could not read a "press exemption" similar to the FEC's exemption for Citizen United's films into the plain language of Colorado law. The Secretary determined it was an electioneering communication, but did not determine whether it was an independent expenditure. Rather than having the Order reviewed by a Colorado Court, Citizens United filed suit in federal court and requested an injunction.

Citizens United attacked the exemptions for print and broadcast media arguing that the exemptions are facially invalid because they discriminate based on the identity of the speaker and alternatively that Citizens United should qualify for the same exemptions as print and broadcast media.

The majority stated that the court must consider "(1) the likelihood that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the relative weight of the harm alleged by the movant and the harm to the non-moving party; and (4) the public interest" in deciding whether to grant a preliminary injunction. The standard of review of a court denying a preliminary injunction is abuse of discretion.

The majority did not address Citizens United's facial challenge, but stated that it did agree with Citizens United's position on the as-applied challenge. The majority began by stating that the laws had to reach the standard of exacting scrutiny.

The majority considered the government's interest in disclosure, which the Secretary stated were to ensure that electors can discern who is attempting to influence their votes and to discourage corruption by making independent expenditures public record. The majority recognized that the Supreme Court had already recognized that disclosures is helpful to keep voting citizens informed. Citizens United v.Fed. Election Comm'n , 558 U.S. 310 368 (2010), but did not accept the Secretary's assertion of the need for disclosure laws to prevent corruption. The Secretary relied on McCutcheon v. Federal Election Commission, 134 S. Ct. 1434, 1459 (2014) and Buckley v. Valeo, 424 U.S. 1 at 67 (1976), but the court explained that these cases were distinguishable because the disclosure requirements applied to more than independent expenditures. Further, the majority pointed to the Supreme Court's decision in Citizens United, where the Court determined that independent expenditures are not tied to corruption. Under Citizens United, the majority stated that the Secretary failed to show how disclosures of independent expenditures would deter quid pro quo corruption.

Next the majority explained the rationale for exempting the media. No reporting is required for news or opinion pieces in periodicals, or for letters to the editor or op-eds. Additionally, newspapers and blogs are considered "printed" even if they have an ideological bias. Further, opinions stated in broadcasts are exempt. News reports by broadcast media are treated the same as news reports in print media by the Secretary even though there is not a stated exemption for them.

The Secretary offered a number of explanations for the media exemptions. The first -- that corporations which are part of the media industry are different than those that are not in the news business -- the court determined was not valid after the Supreme Court's decision in Citizens United, and that such a distinction cannot be the basis for disparate treatment under the First Amendment. The second, that political advertisements disrupt the transparent, balanced, and accountable manner of journalism, the court stated was invalid because newspapers and broadcast station are not all transparent, balanced and accountable. The third justification, that the electorate can properly assess a statement by exempted media because it is familiar with the source, the court stated does have some merit, and stated that it was at least reasonable to allow a media exemption on this ground. The length of time and frequency of communications with the electorate gives the electorate the ability to evaluate the source. The Secretary, however, has not explained why Citizens United does not qualify for this same exemption.

Although the Secretary analogized Citizens United to "drop-in" advocates, the majority analogized Citizens United to exempted blogs and opinion shows because of their history of producing works similar to TV reports or magazines than to advertising clips. The length of time and variety of topics provide information about the organization that the public may use for evaluation.

The majority then addressed the dissent's critique that it should not focus on the disclosure but on the substantial relation between the State's interest and the disclosure scheme as a whole. It responded by explaining that this approach precludes review of as-applied challenges, and noted that courts often uphold laws while eliminating them in specific instances. Further, the dissent argued that a statutory imposition can withstand constitutional scrutiny when it recognizes exemptions because statutes can be constitutionally sound when there are no exemptions. The majority responded that exemptions call the validity of a governmental interest into question because it suggests that the governmental interest may be narrower than it asserts. The majority explained that in Greater New Orleans Broadcasting Ass'n v. U.S., 527 U.S. 173 (1999), the Supreme Court struck down a ban on broadcasting advertisements for casino gaming because the statute allowed for exemptions for other forms of legal gaming that undermined the asserted governmental interests. Finally, the majority stated that the dissent's concerns about figuring out who qualifies for a media exemption was not a sufficient reason to avoid deciding a constitutional question, and noted that this is an issue that the Secretary has already had to deal with.

The majority stated that its holding does not apply to advertisements for Rocky Mountain Heist. The advertisements do not come within the media exemption and Citizens United has not shown that it should be treated differently from exempted media.

Finally, the court held that the other issues regarding the preliminary injunction were easily resolved. Citizens United would suffer irreparable injury if it were forced to comply with the disclosure provisions. Additionally, because the challenge includes issues of constitutional law, the government's interests do not outweigh Citizens United's interest in protecting its constitutional rights. Further, the public interest is always protected in preventing the violation of constitutional rights. Thus, the preliminary injunction factors weight in favor of Citizens United.

Judge Phillips issued an opinion concurring in part and dissenting in part. He agreed with the majority that Citizens United should comply with the disclosure requirements for the advertisements related to Rocky Mountain Heist, but dissented from the majority opinion that the disclosure requirements violated Citizens United's First Amendment rights.

Judge Phillips agreed that exacting scrutiny was the proper standard of review, and that the government interest in ensuring that electors are able to evaluate who is trying to influence their votes is a sufficient reason to uphold the disclosure requirements against a First Amendment challenge. Judge Phillips, however, agreed with the reasoning of the district court that the governmental interest and the disclosure scheme should be evaluated as a whole as opposed to as a "single hypothetical."

Judge Phillips criticized the majority's approach to the case because he believes it is essentially a First Amendment/Equal Protection legal theory, for which the court cites no cases. Additionally, Judge Phillips asserts that the Denver Post is distinguishable from Citizens United because unlike subscribers, advertisers or lenders from the Post, voters may wish to know who is contributing to the making of Citizens United's films. Furthermore, Judge Phillips believes that the assumption that Citizens United is being treated differently from exempted media is an error. Judge Phillips also pointed out that traditional news organizations do not do fundraising for advocacy pieces in the same way that Citizens United does.

Judge Philips also criticized the majority's remedy upon finding that the disclosure scheme is contrary to the First Amendment, because it should either sever the media exemption or strike the disclosure scheme altogether. Judge Phillips stated that the majority's approach of essentially adding in a category of entities that have a right to an exemption is very close to lawmaking.

Finally, Judge Phillips states that although the majority does not adopt this reasoning explicitly, he disagrees with Citizens United's argument that the FEC advisory opinions supports its position. The advisory opinions grant the exemption under the federal disclosure provisions, not under the First Amendment.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-1387.pdf

Panel: Hartz, Tymkovich, Phillips

Date of Issued Opinion: November 12, 2014

Docket Number: No. 14-1387

Decided: Decision by the district court to deny a preliminary injunction was reversed and remanded.

Counsel:

Theodore B. Olson, Gibson, Dunn & Crutcher LLP, (Matthew D. McGill, Amir C.
Tayrani, Lucas C. Townsend, Gibson, Dunn & Crutcher LLP, and Michael Boos,
Citizens United, with him on the brief), Washington, D.C., for Plaintiff -Appellant.

Matthew D. Grove, Assistant Solicitor General, (Daniel D. Domenico, Solicitor General; Leeann Morrill, First Assistant Attorney General; Kathryn A. Starnella, Assistant Attorney General; with him on the brief), Public Official Unit, State Services Section, Denver, Colorado, for Defendants - Appellees.

Martha M. Tierney and Edward T. Ramey, Heizer Paul LLP, Denver, Colorado, filed an Intervenor-Defendants' Brief for Colorado Democratic Party, Garold A. Fornander, Lucía Guzmán, and Dickey Lee Hullinghorst.

David R. Fine and Lino S. Lipinsky de Orlov, McKenna Long & Aldridge LLP, Denver, Colorado; Luis A. Toro and Margaret G. Perl, Colorado Ethics Watch, Denver, Colorado, filed an amicus curiae brief for Citizens for Responsibility and Ethics in Washington, Colorado Common Cause, Colorado Ethics Watch, and Progressive United.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 11/17/2014 09:22 AM     10th Circuit     Comments (0)  

November 14, 2014
  Priests for Life et al. v. HHS
Headline: D.C. Circuit joins other circuits in concluding that opt-out provision for Affordable Care Act's contraceptive coverage requirement does not itself violate RFRA.

Area of Law: Religious Freedom Restoration Act; First Amendment

Issue(s) Presented: Whether the procedure allowing religious nonprofit organizations to opt out of providing contraceptive coverage itself burdens free exercise of religion in violation of RFRA.

Brief Summary:

Plaintiffs, eleven Catholic nonprofit organizations, including Priests for Life, the Archdiocese of Washington, Thomas Aquinas College, and Catholic University of America, employ both Catholics and non-Catholics and provide health insurance to their employees and students through a variety of self-insured and third-party health plans. Plaintiffs filed two actions in August and September 2013 objecting to the contraceptive coverage mandate of the Patient Protection and Affordable Care Act ("ACA") and the accommodation mechanism that allows nonprofit religious organizations to opt out of the contraceptive coverage requirement. They contended that the contraceptive coverage requirement and accommodation fail adequately to dissociate them from the provision of contraceptive coverage, thus substantially burdening their religious exercise in violation of the Religious Freedom Restoration Act ("RFRA"). They also claimed that the ACA, by requiring the insurance providers with whom Plaintiffs contract to provide contraceptive coverage, effectively requires Plaintiffs to facilitate access to contraception, again in violation of RFRA.

The U.S. District Court for the District of Columbia granted the government's motion for summary judgment as to all Plaintiffs except Thomas Aquinas College, finding that the accommodation effectively severed organizations that offer their employees or students an insured group health plan from participation in the provision of the contraceptive coverage. However, the court granted summary judgment in favor of Thomas Aquinas College on its RFRA claim, finding that, because it was self-insured, the contraceptive requirement could require it to provide contraceptive coverage if it could not find a third-party insurer to administer that coverage. All Plaintiffs appealed, and the government cross-appealed the ruling for Thomas Aquinas College. The United States Court of Appeals for the District of Columbia Circuit upheld the challenged regulations.

The D.C. Circuit began by noting that the accommodation under challenge was precisely the middle-ground alternative the Supreme Court considered in Hobby Lobby and assumed would not impinge on for-profit corporations' religious beliefs. The D.C. Circuit observed, moreover, that the Hobby Lobby Court had noted that such an accommodation would further the government's interest in providing contraceptive coverage without hindering the corporations' religious beliefs.

Looking at the specifics, the D.C. Circuit concluded that it, not Plaintiffs, was the proper entity to evaluate the substantiality of the burden on Plaintiffs' religious beliefs. The court then found that the regulatory accommodation imposed only de minimis burden on eligible organizations, requiring only that they submit a single-page form communicating their eligibility in order to fully extricate themselves from the burden of providing contraceptive coverage to employees. Because the opt-out mechanism relieves Plaintiffs of any obligation to contract, arrange, or pay for access to contraception, the court concluded that it did not constitute a substantial burden on their religious exercise under RFRA and thus was not subject to strict scrutiny. In doing so, the court agreed with the Seventh Circuit in University of Notre Dame v. Sebelius, 743 F.3d 547, 559 (7th Cir. 2014), and the Sixth Circuit in Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014).

Turning to Thomas Aquinas College, the self-insured Plaintiff, the court rejected as premature the argument that the regulations obligated Plaintiff to find new third-party administrators (TPAs) in the event their existing TPAs declined to assume responsibility for contraceptive coverage. Moreover, the court noted that the government had clarified on appeal that, if an organization's TPA declined to provide contraceptive coverage, the regulations would not require the organization to identify and contract with a new one.

The court next concluded that, even if the requirement were subject to strict scrutiny under RFRA, it would survive. The court found that the contraceptive requirement and accommodation furthered compelling government interests in improving public health and furthering gender equality, assuring women equal access to the benefits of preventive health care coverage by providing contraceptive services seamlessly together with other health services. The court also concluded that the accommodation was the least restrictive means of furthering this interest, allowing the government to pursue its objectives while imposing only a minimal burden on religious nonprofit organizations.

Finally, the court rejected Plaintiffs' Free Exercise and other First Amendment arguments on the basis that the contraceptive coverage requirement was a religiously neutral part of a law of general application that did not target religious organizations and that the notice requirement did not constitute compelled speech.

For the full text of the opinion, see http://www.cadc.uscourts.gov/i...le/13-5368-1522271.pdf

Panel: Rogers, Pillard, and Wilkins

Argument Date: May 8, 2014

Date of Issued Opinion: November 14, 2014

Docket Number: 13-5368

Decided: affirmed in part

Case Alert Author: Ripple Weistling

Counsel: Robert J. Muise, Noel J. Francisco, Eric Dreiband, and David Yerushalmi for appellants. Mark B. Stern, Stuart F. Delery, Ronald C. Mahen Jr., Beth S. Brinkmann, Alisa B. Klein, and Adam C. Jed for Appellees.

Author of Opinion: Pillard

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 11/14/2014 02:59 PM     DC Circuit     Comments (0)  

November 12, 2014
  USA v. Robert Franz - Third Circuit
Headline: The Exclusionary Rule of the Fourth Amendment Does Not Apply When an Agent Executing an Otherwise-Valid Search Warrant Fails to Provide the Homeowner a List of Items Sought, If That Agent Does Not Do So Deliberately, Recklessly, or With Gross Negligence.

Area of Law: Criminal Law

Issue Presented: Whether the exclusionary rule applies when agents executing an otherwise-valid search warrant fail to provide to the homeowner a list of items sought.

Brief Summary:
Robert Franz appeals from his conviction on one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). The primary issue on appeal is whether the exclusionary rule applies when an agent executing an otherwise-valid search warrant fails to provide the homeowner a list of items sought. The Court holds that when that agent does not act deliberately, recklessly, or with gross negligence, the exclusionary rule does not apply.

Franz also challenged a separate warrant for the search of his computer. The Court denied this challenge, finding that Franz waived his right to appeal this issue by failing to timely appeal. The Court also rejected Franz's argument that evidence shown to the jury but later stricken from the case was unfairly prejudicial because the court sufficiently instructed the jury not to consider it and the jury found Franz not guilty on the charge related to that evidence. Finally, the Court denied Franz's arguments that the evidence was insufficient to send the case to the jury. Accordingly, the Third Circuit affirms Franz's conviction.

Extended Summary:

In 2009, the Bureau of Land Management (BLM) was investigating Robert Franz on the possibility that he had stolen a wooly mammoth tusk and other paleontological items from BLM-managed land in Alaska and smuggled them to his house in Pennsylvania. Based on evidence obtained from an undercover investigation, the BLM sought and obtained a search warrant ("The Nardinger Warrant") for Franz's house with the assistance of federal prosecutors. Where the face sheet of the warrant asked for a description of the property that the agents expected to seize, it read, "See attached sheet," referring to Attachment B which listed a series of items to be seized. The search warrant, affidavit, and accompanying papers were sealed.

When BLM agents executed the warrant, Franz was present. Agent Nardinger provided Franz with a copy of the face sheet of the warrant but did not give him copies of the warrant attachments. Nardinger mistakenly believed that because the warrant and affidavit had been sealed, he could not reveal those attachments. Nardinger nonetheless explained to Franz the circumstances giving rise to the warrant and thoroughly described the items the warrant authorized him to seize. During the search, agents noticed several framed photographs of young, nude girls on the walls of Franz's house, and they came across pamphlets containing several images of nude minors engaged in sexually explicit conduct. An agent also noticed a file thumbnail depicting a partially nude girl and saw another file name that suggested the presence of child pornography. After consulting federal prosecutors, the agents collected the contraband that was in plain view. They referred the child pornography case to the FBI.

The second warrant in question ("The Herrick Warrant") was obtained to search the digital storage devices and other items that BLM had seized. This warrant was sealed, and the government did not provide a copy to Franz until thirty-one months after issuance and over two months after Franz's indictment. This warrant produced two digital images found on Franz's external hard drive that, along with the pamphlets, served as the basis for the charges filed against Franz. A grand jury indicted Franz for two child pornography crimes: receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Following a jury trial, he was convicted of the first charge and acquitted of the second.

The Third Circuit Court first addressed and rejected Franz's challenge of the Nardinger Warrant. The Court agreed with the District Court that the warrant was facially valid when issued but that the execution of it violated Franz's Fourth Amendment rights because when it was presented to Franz, it did not contain a particularized list of items to be seized. The Court determined that the important question was whether that violation necessitated the suppression of the evidence obtained pursuant to the Nardinger Warrant. Franz argued that the exclusionary rule applies without exception to facially invalid warrants, and therefore, that no analysis into the agent's conduct is allowed. The Court disagreed, holding that there is no need to exclude evidence based on Nardinger's mistake in failing to present the list of items to be seized. Further, the Court rejected Franz's argument that a good-faith analysis was unnecessary.

The Court noted that while Third Circuit case law has not always been clear on the need to consider good faith in regards to the exclusionary rule, the Supreme Court's and Third Circuit's precedents have been consistent in requiring case-specific analysis of whether the exclusionary rule applies. The purpose of the Fourth Amendment exclusionary rule is to deter law enforcement from unreasonable searches and seizures by preventing the government from relying at trial on evidence obtained in violation of the Constitution. However, because of the high cost of hiding crucial evidence from a fact-finder, suppression of evidence has always been a last resort. Therefore, it is only used when law enforcement exhibits deliberately, recklessly, or grossly negligent disregard for Fourth Amendment rights. When the police act with an objectively reasonable, good-faith belief that their conduct is lawful, or when their conduct involved only simple, isolated negligence, the exclusionary rule is not applied. Accordingly, the Court considers not only any defects in the warrant but also the officer's conduct in obtaining and executing the warrant and what the officer knew or should have known.

The Third Circuit agreed with the District Court that Nardinger's conduct was objectively reasonable in seeking and obtaining a valid warrant, acting in consultation with federal prosecutors, and explaining to Franz what items the warrant authorized him to search for and seize. Further, Franz presented no evidence that the constitutional violation in question was recurring or systematic, as Nardinger was an inexperienced agent who made an isolated mistake because of the unclear language of the order sealing the attachment. Nardinger did not act deliberately, recklessly, or with gross negligence in executing the warrant in violation of Franz's Fourth Amendment rights. Therefore, excluding the resulting evidence would provide little deterrent effect. Accordingly, the Third Circuit affirmed the denial of Franz's motion to suppress the Nardinger Warrant.

The Court next rejected Franz's challenge to the Herrick Warrant based on the argument that Franz did not receive a copy of it or its supporting documents until thirty-one months after it was executed. He averred that this failure to serve the warrant at the time of the search violated Rule 41 of the Federal Rules of Criminal Procedure and his right to due process. The Court agreed with the government's response that Franz waived his challenge to the Herrick Warrant by failing to timely raise it before the District Court. Raising this challenge in his motion for reconsideration following the District Court's denial of his motion to suppress the aforementioned evidence was not sufficient to preserve the issue for appeal.

Next, the Court turned to the pamphlets and Franz's remaining motions. Franz argued that the District Court abused its discretion when it initially admitted but later excluded the pamphlets from evidence. The Third Circuit Court disagreed for two reasons. The first was that the District Court's curative instructions were clear, comprehensive, and direct, and they were sufficient to address the withdrawal of the pamphlets. The second reason was that the jury acquitted Franz of the possession charge, the only charge the pamphlets were used to support. Therefore, any error in the admission of the pamphlets did not contribute to Franz's conviction on the charge for receipt of child pornography.

Finally, the Court found that the evidence to support his conviction was sufficient. Franz contended that the government failed to establish the jurisdictional nexus, mens rea, and sexually explicit nature of the digital image required for the charge of which he was convicted. The Court found that a rational juror could have concluded that the government had proven the jurisdictional element of the crime beyond a reasonable doubt by providing evidence that the image was downloaded from the internet, a channel and instrumentality of interstate commerce. There was also sufficient evidence to show that Franz's receipt of the image was "knowing." Finally, there was sufficient evidence to establish that the image was of a sexually explicit nature according to both common sense and the six Dost factors. Specifically, the focal point of the image is the child's genitals; the image depicts a child in a bedroom, on a bed, a sexually suggestive setting; the child's legs are spread and her genitals are exposed; the child is only not wearing any sexually suggestive clothing because she is wearing nothing at all; the child's pose can be understood as suggesting a willingness to engage in sexual activity; and all of these facts suggest that the image was intended to elicit a sexual response in the viewer.

Because the District Court did not err in denying Franz's motions to suppress; the admission of the pamphlets did not contribute to Franz's conviction; and the evidence was sufficient to support the conviction, the Third Circuit Court affirmed Franz's conviction for receipt of child pornography.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/132406p.pdf.

Panel (if known): Fisher, Jordan, and Hardiman, Circuit Judges

Argument Date: September 9, 2014

Date of Issued Opinion: November 4, 2014

Docket Number: No. 13-2406

Decided: Affirmed

Case Alert Author: Jaclyn Poulton

Counsel:
Counsel for Appellant: Richard Q. Hark
Counsel for Appellee: Alicia M. Freind (Office of United States Attorney)

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 11/12/2014 03:16 PM     3rd Circuit     Comments (0)  

November 4, 2014
  Mohamed v. Holder -- Fourth Circuit
Headline: Failure to Register as a Sex Offender Is Not a Crime of Moral Turpitude

Area of Law: Immigration, Criminal Law

Issue Presented: Whether failure to register as a sex offender is a crime "involving moral turpitude" as the term is used in 8 U.S.C. § 1227(a)(2)(a)(ii).

Brief Summary: Khalid Mohamed has been a lawful permanent resident of the U.S. since 2003. In 2010, Mohamed pled guilty to sexual battery in Virginia. The following year Mohamed was convicted of failing to register as a sex offender. Thereafter, the government initiated removal proceedings based on 8 U.S.C. § 1227(a)(2)(a)(ii) of the Immigration and Naturalization Act, which authorizes the deportation of any alien "convicted of two or more crimes of moral turpitude."

Mohamed contested his removal claiming his failure to register as a sex offender was not a crime of moral turpitude. The Board of Immigration Appeals (BIA) rejected Mohamed's appeal, relying on precedent set in Matter of Tobar-Lobo. In that case, the BIA held that failure to register did indeed involve moral turpitude. Mohamed then petitioned the U.S. Court of Appeals for the Fourth Circuit for relief.

The Fourth Circuit stated that although the term is somewhat ambiguous, violation of a statute alone will not satisfy the moral turpitude requirement. In addition, the criminal conduct must be so vile or depraved that it violates a social norm. The Fourth Circuit found that the BIA's reasoning in Tobar-Lobo was flawed. When questioning whether failure to register involved moral turpitude the BIA considered the public policy underlying the registration statute rather than considering whether the defendant's actual conduct was so vile and depraved that it violated a social norm. The Fourth Circuit stated that failure to register does not rise to the level of moral turpitude because it is merely the failure to comply with an administrative regulation - which is not depraved or vile conduct. Accordingly, the Fourth Circuit granted Mohamed's petition for review, reversed the BIA's decision, and remanded with instructions to vacate Mohamed's order of removal.

Unlike this case, the Fourth Circuit chose not to question the BIA's interpretation of another ambiguous immigration statute in Regis v. Holder, decided later the same week.

To read the full opinion please click here.

Panel: Judges Traxler, Niemeyer, and Davis.

Argument Date: 9/19/2014

Date of Issued Opinion: 10/17/2014

Docket Number: No. 13-2027

Decided: Petition for review granted; reversed and remanded with instructions.

Case Alert Author: Roy Lyford-Pike

Counsel: ARGUED: Steven Harris Goldblatt, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner. Bernard Arthur Joseph, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rita K. Lomio, Supervising Attorney, Lola A. Kingo, Supervising Attorney, Tiffany L. Ho, Student Counsel, David A. Kronig, Student Counsel, Philip Young, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner. Stuart F. Delery, Assistant Attorney General, Civil Division, Jamie M. Dowd, 2Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author: Judge Niemeyer

Case Alert Circuit Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 11/04/2014 04:43 PM     4th Circuit     Comments (0)  

November 3, 2014
  Reid v. Comm'r Soc. Sec. -- Fourth Circuit
Headline: More than Satisfactory--Record Shows ALJ Completely Reviewed Evidence When Denying Social Security Benefits

Area of Law: Social Security

Issue Presented: Whether the ALJ failed to sufficiently consider all evidence and evaluate the cumulative effect of Reid's injuries before denying a social security claim.

Brief Summary: In 2006, Brian Reid filed for disability benefits claiming a fall from a roof in 2004 left him unable to work. He appealed the initial denial and a hearing was conducted before an administrative law judge (ALJ) who affirmed the denial. The United States Court of Appeals for the Fourth Circuit found that Reid failed to point to evidence that, if considered, would have changed the outcome of his application. Consequently, the court took the ALJ at its words when it declared it considered all the evidence before it. The Fourth Circuit also found evidence in the record where the ALJ explicitly considered the cumulative effects of Reid's injuries and concluded that those injuries combined did not meet or medically equal one of the listed statutory impairments. The court held that the ALJ had exceeded the statutory requirements.

To read the full opinion, please click here.

Panel: Before Chief Judge Traxler, and Judges Niemeyer and Duncan

Argument Date: 05/15/2014

Date of Issued Opinion: 07/2/2014

Docket Number: No. 13-1480

Decided: Affirmed by published opinion

Case Alert Author: Casandra Mejias

Counsel: Beatrice E. Whitten, Mt. Pleasant, South Carolina, for Appellant. Sarah Van Arsdale Berry, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Barbara M. Bowens, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina; John Jay Lee, Regional Chief Counsel, Kirsten A. Westerland, Assistant Regional Counsel, Dorrelyn K. Dietrich, Special Assistant United States Attorney, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for Appellee.

Author of Opinion: Judge Niemeyer

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 01:24 PM     4th Circuit     Comments (0)  

  United States v. Mavroudis -- Fourth Circuit
Headline: District Court Runs Sentence Consecutively with Any Future Sentences

Areas of Law: Criminal Procedure

Issue Presented: Whether the district court abused its discretion in sentencing the defendant to a term of imprisonment that ran consecutive to any future state or federal sentences that might be imposed, followed by a lifetime of supervised released.

Brief Summary: Theofanis Mavroudis, a sex offender who pled guilty to failing to register as such under 18 U.S.C. § 2250(a), was sentenced in federal district court to sixty-three months in prison. This sentence was to run consecutive to any future state or federal sentence and was to be followed by a lifetime of supervised release. Mavroudis challenged his sentence in an appeal to the United States Court of Appeals for the Fourth Circuit.

Reviewing the sentence for an abuse of discretion, the Fourth Circuit affirmed the sentence. The court explained that the sentence was both procedurally and substantively reasonable, based on ample sentencing testimony and the district court's explanation of its reasoning. Thus, the court held that Mavroudis failed to rebut the presumption of reasonableness accorded to his sentence. The Fourth Circuit also rejected Mavroudis' argument that the district court lacked discretion to run his sentence consecutive with any future sentence, explaining that in Setser v. United States the United States Supreme Court held that federal district courts have the discretion to order that a single sentence run consecutive to or concurrent with an anticipated state sentence not yet imposed.

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

Panel: Judges Keenan and Wynn, and Senior Circuit Judge Hamilton

Argument Date: Oral argument dispensed with

Date of Issued Opinion: 10/09/2014

Docket Number:
No. 14-4201

Decided: Affirmed by unpublished opinion

Case Alert Author: Emily Bolyard

Counsel:
ARGUED: Nicholas J. Compton, Assistant Federal Public Defender, Kristen M. Leddy, Research and Writing Specialist, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Jarod J. Douglas, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 01:14 PM     4th Circuit     Comments (0)  

  Owens v. Baltimore City State's Attorneys Office, et al. -- Fourth Circuit
Headline: One Step Closer to Redemption--Exonerated Felon's Brady Claim Lives to See Another Day

Areas of Law: Criminal, Criminal Procedure, Sovereign Immunity, Qualified Immunity

Issues Presented: (1) Whether plaintiff's § 1983 claim was barred on statute-of-limitations-grounds; (2) whether the Baltimore City State's Attorney's Office enjoys sovereign immunity; (3) whether individual police officers established a qualified immunity defense for the alleged 1988 Brady violation; and (4) whether the plaintiff failed to state a claim on which relief could be granted as to his claim against the Baltimore City Police Department.

Extended Summary: In 1988, James Owens was tried and convicted for rape and murder. After twenty years in prison, Owens was released in 2008 following a successful post-conviction challenge and the entry of a nolle prosequi by the Baltimore City State's Attorney's Office. During the course of several post-conviction challenges, Owens learned that the prosecution's star witness in his 1988 trial had changed his story at least eight times after first identifying Owens as the suspect, and even continued to change his story throughout the course of the trial. The prosecutors never disclosed these variations in the witness' testimony to the defense.

In 2011, just under three years after his release from prison, Owens brought an action under 42 U.S.C. § 1983 against the Baltimore City State's Attorney's Office, an Assistant State's Attorney, the Baltimore City Police Department, and several Baltimore City police officers. Owens claimed these offices and individuals violated his constitutional rights by intentionally withholding exculpatory and impeachment evidence during his 1988 trial. The U.S. District Court for the District of Maryland dismissed the complaint against all the defendants. First, the court held the claims were barred by the statute of limitations. In the alternative, the court held Owens' claim against the Baltimore City State's Attorney's Office was barred on sovereign immunity grounds, and against the individual police officers and the Baltimore City Police Department on qualified immunity grounds. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment with respect to the dismissal of Owens' claims against the Baltimore City State's Attorney's Office but vacated and remanded the judgment in all other respects.

The Fourth Circuit first held that Owens' claims were timely filed within the statute of limitations period. Neither party disagreed that Owens had three years to file his § 1983 claim; they disagreed, however, as to when this three-year limitation period began to run. Because § 1983 does not provide a statute of limitations, the Fourth Circuit compared Owens' § 1983 claims to the most analogous common law tort claim - in this case, malicious prosecution. The limitations period for a malicious prosecution claim commences when the proceedings against the plaintiff "are resolved in his favor." The Fourth Circuit determined that to be the date the government entered the nolle prosequi, not the date on which the state court granted Owens' post-conviction petition and granted him a new trial.

Although timely filed, the Fourth Circuit held that the Baltimore City State's Attorney's Office enjoyed sovereign immunity from Owens' claims. Recognizing that the Maryland courts have not considered the issue of whether this entity may be sued, the court held that absent a statutory or constitutional provision giving an entity a unique legal identity, it cannot be sued under Maryland law. Following the analysis of the Maryland Court of Appeals in Boyer v. State, the court found that Maryland constitutional and statutory law establishes only the "State's Attorney," or the person occupying the position of State's Attorney, as an entity amendable to suit. The court found the one "passing reference" to the "office of the State's Attorney" in the Maryland constitution was only a shorthand for the position of State's Attorney, and therefore did not establish the State's Attorney's Office as an entity amendable to suit.

Next, the court addressed Owens' claims against the individual police officers. In order to establish a qualified-immunity defense, a public official must demonstrate (1) that the plaintiff has not alleged a violation of a constitutional right, or (2) that such constitutional right was not clearly established at the time of its alleged violation. The court found that Owens pled enough facts to show he had a more-than-conceivable chance of success on the merits. First, the court found that Owens' allegations stated a plausible § 1983 claim, because Owens alleged enough facts to demonstrate police officers withheld material exculpatory or impeachment evidence in bad faith in violation of Fourth Circuit precedent following Brady v. Maryland. Second, the court held that Fourth Circuit precedent was clearly established at the time of Owens' trial in 1988 and therefore the officers had notice that their bad faith failure to disclose exculpatory evidence was a violation of Owens' constitutional rights.

Moving from the individual officers to the department, the court held that the Baltimore City Police Department did not enjoy the benefits of qualified immunity. Recognizing this, the BCPD instead argued on appeal that Owens failed to state a claim for which relief can be granted. Considering the claim from this procedural posture, the Fourth Circuit considered whether the BCPD followed a custom, policy, or practice by which the officials violated the plaintiff's constitutional rights. Owens' complaint alleged a theory of custom "by condonation." The court held that this was sufficient to survive the motion to dismiss. The fact that the police officers withheld information on multiple occasions (the variations in the star witness' statements) could establish the necessary pattern or practice.

Chief Judge Traxler, concurring in part and dissenting in part, dissented on the basis that Owens' claims were untimely and that the individual officers had established a qualified immunity defense. First, the Chief Judge would have begun the tolling of the statute of limitations when the state court granted Owens a new trial on the basis that that was the most final and favorable termination of the proceedings giving rise to the Brady violation. In the alternative, the Chief Judge would have held that the claims against the officers were barred because a police officer's duty to disclose under Brady was not clearly established at the time of Owens' 1988 trial.

Judge Wynn, also concurring in part and dissenting in part, dissented on the grounds that the Baltimore City State's Attorney's Office is an entity amenable to suit. Judge Wynn relied on the language the majority considered to be only a "passing reference" to the office in the Maryland Constitution.

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


Panel: Chief Judge Traxler, and Judges Motz and Wynn

Argument Date: 01/28/2014

Date of Issued Opinion: 09/24/14

Docket Number: No. 12-2173

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

Case Alert Author: Megan Raker

Counsel: ARGUED: Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore, Maryland; Laura Ginsberg Abelson, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellant. Daniel C. Beck, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland; Michele J. McDonald, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Joshua R. Treem, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellant. Douglas F. Gansler, Attorney General, H. Scott Curtis, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; George A. Nilson, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.

Author of Opinion: Judge Motz

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 12:54 PM     4th Circuit     Comments (0)  

  United States v. Catone -- Fourth Circuit
Headline: Loss Amount Recount--Worker's Comp Fraud Conviction Vacated and Remanded for Lesser Sentence and Restitution

Area of Law: Criminal Law, Constitutional Law (Sixth Amendment)

Issues Presented: (1) Whether a felony conviction under 18 U.S.C § 1920 requires a jury finding that the offense led to more than $1,000 in "falsely obtained" benefits; (2) whether absence of such a jury finding was harmless error; and (3) whether the district court erred in its determination of the loss amount when applying a loss-amount sentencing enhancement to defendant's base offense level and restitution order.

Brief Summary: Joseph Catone, a former U.S. Postal Service Worker, received payments under the Federal Employees Compensation Act for injuries he incurred while driving for extended periods of time. Each year, Mr. Catone had to verify his eligibility for the worker's comp benefits by disclosing any payments he received for work he performed. During the 2008-2009 term, Mr. Catone did not disclose that he received $635 for custodial services. A jury convicted Mr. Catone of violating 18 U.S.C. § 1920 by making a fraudulent statement (failing to disclose the $635) in connection with the application for receipt of compensation under a federal program. The district court sentenced Mr. Catone to sixteen months' imprisonment, and imposed a restitution order for $106,411.83.

On appeal to the U.S. Court of Appeals for the Fourth Circuit, Mr. Catone challenged his conviction, sentence, and restitution. First, the court held that Mr. Catone's felony conviction violated his Sixth Amendment right to trial by jury because the jury made no finding that the amount Mr. Catone fraudulently obtained exceeded $1,000. Following the Supreme Court's reasoning in Apprendi v. New Jersey and Alleyne v. United States, the court explained that the loss amount is an element of the offense requiring jury determination because the specific amount of loss increases the statutory maximum offense from a misdemeanor (punishable by one year in prison) to a felony (punishable by a five-year maximum sentence). In so holding, the Fourth Circuit adopted the Eleventh Circuit's interpretation of § 1920, and rejected alternative interpretations advanced by the Second, Seventh, and Tenth Circuits.

Second, the court held that the absence of the jury finding was not harmless because there was not "overwhelming evidence" establishing that Mr. Catone fraudulently obtained over $1,000. The court therefore vacated his conviction and directed the district court to impose a misdemeanor conviction on remand. The court finally found that the district court applied an improper analysis when calculating the loss amount for purposes of sentence enhancements and restitution. The Fourth Circuit directed the district court on remand to resentence Mr. Catone without any offense level enhancements for loss amount, and vacated and remanded the restitution order to be recalculated using the correct loss-amount formula.

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

Panel: Chief Judge Traxler, and Judges Keenan and Floyd

Argument Date: 5/14/2014

Date of Issued Opinion: 10/15/2014

Docket Number: No. 13-4663

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

Case Alert Author: Rebecca Berger

Counsel: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson, Acting Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Author of Opinion: Judge Floyd

Case Alert Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 12:35 PM     4th Circuit     Comments (0)  

  Hentosh v. Old Dominion University -- Fourth Circuit
Headline: Title VII Retaliation Claims Are Legitimate Even If Related EEOC Charges Are Dismissed

Area of Law: Administrative, Employment

Issue Presented: Whether the lower court committed reversible error when it granted defendant's motion for summary judgment on plaintiff's retaliation claim after having dismissed the underlying discrimination charges due to lack of subject matter jurisdiction.

Brief Summary: Professor Patricia Hentosh filed suit against her employer, Old Dominion University ("ODU"), alleging that ODU had an "unwritten but widespread" policy of discriminating against whites. Hentosh claimed that ODU discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 when it denied her tenure after she filed an EEOC complaint against the school. The district court granted ODU's motion to dismiss most of the discrimination claims, finding that the court did not have subject matter jurisdiction either because the EEOC complaints were not timely filed or because her legal claims were not within the scope of the EEOC charges and therefore had not been administratively exhausted. The district court denied ODU's motion to dismiss the retaliation claim because a retaliation claim may be properly raised for the first time in federal court. Nevertheless, the district court granted ODU's motion for summary judgment on that claim, finding that Hentosh failed to establish the elements of retaliation.

On appeal, Hentosh argued that the district court should have dismissed her retaliation claim instead of granting ODU's motion for summary judgment under Mezu v. Morgan State University, an unpublished opinion. The U.S. Court of Appeals for the Fourth Circuit disagreed. The Fourth Circuit found that Hentosh's understanding of Mezu directly conflicted with Nealon v. Stone, a published opinion establishing that the district court has original jurisdiction over retaliation claims so long as the claim is "reasonably related" to an administrative charge. Furthermore, the Fourth Circuit stated that failing to timely file an EEOC charge does not alone deprive the district court of subject matter jurisdiction. Therefore, the district court had subject matter jurisdiction over Hentosh's retaliation claim because it was reasonably related to her administratively exhausted Title VII claims. Consequently, the district court properly granted summary judgment in favor of ODU.

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

Panel: Judges Duncan, Wynn, and Childs

Argument Date: 05/13/2014

Date of Issued Opinion: 09/24/14

Docket Number: No. 13-2037

Decided: Affirmed

Case Alert Author: Roy Lyford-Pike

Counsel: Raymond Lee Hogge, Jr., HOGGE LAW, Norfolk, Virginia, for Appellant. George William Norris, Jr., OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Kenneth Michael Golski, HOGGE LAW, Norfolk, Virginia, for Appellant. Kenneth T. Cuccinelli, II, Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, Peter R. Messitt, Senior Assistant Attorney General, Ronald N. Regnery, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Author: Judge Childs

Case Alert Circuit Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 12:16 PM     4th Circuit     Comments (0)  

  United States v. Taylor -- Fourth Circuit
Headline: Passenger's Hesitation Allows for Warrantless Search at Airport Jet Way

Area of Law: Criminal Law

Issue Presented: Whether the district court's denial of a motion to suppress $102,000 that had been seized on an airport jet way as well as statements made by the defendant during a subsequent booking violated the Fourth Amendment protection against unreasonable searches and seizures.

Brief Summary: Homeland Security Investigations received a tip that Yvonne Taylor would attempt to smuggle a large amount of currency while traveling from Baltimore, Maryland, to Montego Bay, Jamaica. Officers stationed themselves inside the jet way gate and began interviewing passengers as they were boarding the Montego Bay-bound flight. When Taylor was questioned, she hesitated and gave a response that was seemingly different when compared to the other previously-questioned passengers. Taylor also gave inconsistent statements after officers asked her additional questions. Taylor ultimately admitted she was carrying over $100,000 on her person. Officers escorted Taylor to a secondary area where a pat-down search yielded $102,000 in cash hidden around her midsection. While the officer was filling out the booking form, Taylor volunteered that she had carried bulk sums of currency on two prior trips. She also volunteered that the money would have been deposited in a bank had she not been caught. On appeal, Taylor challenged the trial court's refusal to suppress the money and statements.

The U.S. Court of Appeals for the Fourth Circuit held that the Ramsey border search exception extends to all routine searches at the nation's borders. The initial stop and questioning of Taylor on the jet way therefore comported with the Fourth Amendment. Furthermore, the panel concluded that the officers had probable cause to arrest Taylor and conduct a warrantless search incident to that lawful arrest. Taylor's hesitation, awkward response when initially questioned, aversion to eye contact during questioning, and inconsistent answers regarding the amount of currency she was carrying all factored into the officer's reasonable belief that Taylor was or would be involved in criminal activity.

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


Panel: Judges Wynn and Diaz; Judge Hamilton, Senior Circuit Judge.

Date of Issued Opinion: September 24, 2014

Docket Number: 13-4507

Decided: Affirmed

Case Alert Author: Alexandra A. Stulpin

Counsel: Lance C. Hamm, Houston, Texas, for Appellant. Rod J. Rosenstein, United States Attorney, Evan T. Shea, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/03/2014 12:10 PM     4th Circuit     Comments (0)  

  Occupy Nashville v. Haslam -- Sixth Circuit
Headline: Sixth Circuit rules that state officials are entitled to qualified immunity for alleged violations of protesters' First Amendment rights

Area of Law: The U.S. Constitution

Issue presented: Are state officials entitled to qualified immunity for alleged violations of protesters' constitutional rights?

Brief Summary: Six protesters sued various state officials after being arrested for violating a curfew that those officials had imposed. The protesters alleged, in relevant part, violations of rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. The district court found that the state officials were not entitled to qualified immunity and were personally liable for damages. The officials appealed. The Sixth Circuit reversed, holding that the state officials were entitled to qualified immunity.

Significance: Government officials may restrict activity that is conducted on state grounds, especially when that activity threatens the health and safety of the people on those grounds.

Extended Summary: A group of protesters calling themselves "Occupy Nashville" established an around-the-clock presence on the Nashville War Memorial Plaza in Nashville, Tennessee. After several weeks of occupying the Plaza, representatives of the protesters sought a meeting with state officials to discuss safety and health concerns that had developed in the course of the lengthy demonstration. The State agreed that the concerns had to be addressed and adopted a new policy that, in relevant part, imposed a curfew for the Plaza. Six people associated with the demonstration were later arrested for violating the curfew.

The protesters who'd been arrested sued various state officials under 42 U.S.C. § 1983, alleging, in relevant part, violations of rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. The state officials countered that the protesters had no First Amendment right to "occupy" the Plaza indefinitely. Absent this right, the officials argued, there could be no constitutional violation, and qualified immunity applied. The Sixth Circuit agreed.

The Court acknowledged that the qualified immunity that ordinarily protects government officials is forfeited when an official's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." The Court applied a well-settled two-part test to decide whether a government official is entitled to qualified immunity: (1) whether a constitutional right would have been violated on the facts alleged and, if so, (2) whether the right was clearly established. The Court focused on the second part of the test.

In applying the "clearly established right" prong, the Court stressed the importance of accurately defining the claimed constitutional right. The state officials defined the right claimed by the protesters as a right to "24-hour occupation" of the public square. The protesters, on the other hand, asserted a broad "clearly established First Amendment right to be present on the Plaza to air their grievances against the government." The Court concluded that the state officials' framing of the issue was more accurate. Thus, even though the protesters claimed that they had a right under the First Amendment to air their grievances against the government, their activities, as their name suggests, were fundamentally about occupation.

Relying heavily on precedent, the Court addressed whether the indefinite occupation of the Plaza was an established right. The Court stated that for a right to be clearly established, it must be clear enough that a reasonable official would understand that what he or she is doing violates that right. It was undisputed that the State may restrict sleeping and camping on state grounds, and may restrict the times that state grounds are open to the public. Thus, the Court determined that there was no right to indefinite occupation of the Plaza.

Further, the First Amendment does not grant a right to expression that threatens the health and safety of others. Representatives of the "Occupy Nashville" group approached the state officials to discuss sanitation problems, violent assaults, damage to state property, and the generally unsafe and deteriorating conditions in the Plaza. This discussion prompted the state officials to create the curfew. The Court concluded that because the officials had a legitimate basis for creating the curfew, their conduct was objectively reasonable under the circumstances.

For these reasons, the Court reversed the district court's order denying qualified immunity and granting partial judgment of liability.

Panel: SENTELLE, BENTON, and JORDAN, Circuit Judges

Date of issued opinion: October 8, 2014

Docket Number: No. 13-5882

Link to full opinion: ">"><br ">&l......./op...253p-06.pdf


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Counsel: ARGUED: Dawn M. Jordan, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashviller, Tennessee, for Appellees. ON BRIEF: Dawn M. Jordan, Heather C. Ross, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. C. David Briley, BONE MCALLESTER NORTON, PLLC, Nashville, Tennessee, Thomas H. Castelli, ACLU FOUNDATION OF TENNESSEE, Nashville, Tennessee, Tricia Herzfeld, OZMENT LAW, Nashville, Tennessee, for Appellees.

Author of Opinion: KENT A. JORDAN, Circuit Judge

Case Alert author: Candis Najor

Case Alert circuit supervisor: Professor Mark Cooney

Edited: 11/04/2014 at 01:25 PM by Mark Cooney

    Posted By: Mark Cooney @ 11/03/2014 11:54 AM     6th Circuit     Comments (0)  

November 2, 2014
  WildEarth Guardians v. EPA - Tenth Circuit
Case Name: WildEarth Guardians v. EPA - Tenth Circuit

Headline: Tenth Circuit upholds EPA's decision allowing New Mexico, Utah, and Wyoming to use a regional cap-and-trade program instead of the Best Available Retrofit Technology ("BART") regulations.

Areas of Law: Environmental Law, Administrative Law

Issues Presented:

1. Did the EPA use proper standards of analysis when determining that the regional cap-and-trade program will achieve greater reasonable progress than BART regulations?

2. Could the EPA have reasonably concluded that the cap-and-trade program would be effective with only three states participating?

3. Was the EPA required to consider emissions from New Mexico's Escalante coal plant when approving the state's implementation plan?

Brief Summary:

Three states adopted a regional cap-and-trade program that would allow them to remain compliant with the Clean Air Act. They convinced the Environmental Protection Agency that this program would yield better results than the standard BART regulations, and the EPA approved its use and implementation. Several environmental groups filed petitions for review, arguing that the EPA should not have approved the program.

The Tenth Circuit considered each of the petitioners' arguments and held that the EPA had not acted arbitrarily or capriciously in finding that the regional cap-and-trade program would achieve greater reasonable progress than BART and that it would achieve reasonable progress towards eliminating visibility impairment, even though it did not consider emissions from New Mexico's Escalante coal plant in its analysis. The court denied the petitions for review.

Extended Summary:

The Clean Air Act requires the Environmental Protection Agency to establish regulations requiring states to develop implementation plans to improve visibility and adopt, maintain, and enforce air quality standards. The EPA then monitors the states' implementation plans to ensure compliance. Once approved, those implementation plans become enforceable as federal law under 42 U.S.C. §§ 7413, 7604.

Congress also tasked the EPA with establishing a visibility transport commission to study regional haze in the Grand Canyon area and recommend solutions to reduce it. The EPA went a step further by establishing a commission to consider visibility in the greater Colorado Plateau area. This commission's role was passed onto the Western Regional Air Partnership, which made recommendations that resulted in the Regional Haze Rule. Under this rule, the nine states contributing to the regional haze were required to submit an implementation plan for reducing emissions. States could either apply the Best Available Retrofit Technology ("BART") approach under 40 C.F.R. § 51.308 or, alternatively, use a cap-and-trade program recommended by the transport commission if the states would expect better results than they would under BART regulations. This approach is authorized by 40 C.F.R. § 51.309, and is therefore referred to as a "309 program".

The states of New Mexico, Utah, and Wyoming, the County of Bernalillo, and the City of Albuquerque (collectively referred to as "participants") opted to participate in the 309 program. They convinced the Environmental Protection Agency that this program would yield better results than they would achieve under BART regulations, and the EPA approved their use of the 309 program in lieu of BART. WildEarth Guardians, Heal Utah, National Parks Conservation Association, Powder River Basin Resource Council, and Sierra Club (collectively referred to as "petitioners") filed petitions for review, arguing that the EPA should not have approved the 309 program.

The Clean Air Act authorizes judicial review of the EPA's approval of state implementation plans. The court noted that its standard of review was governed by the Administrative Procedure Act, which allows the court to reverse agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). If the EPA considered the relevant data and rationally explained its decision, its decision would not be overturned. The court further noted that administrative agencies are given great deference when operating under an "unwieldy and science-driven statutory scheme", citing Nat'l Ass'n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1229 (D.C. Cir. 2007).

The petitioners made three arguments against the EPA's approval of the 309 program. The first argument was that the 309 program was not better than the standard BART rules. The Regional Haze Rule, 40 C.F.R. § 51.308(e)(2), outlines a three-step process for determining if an alternative program is better than BART. It requires establishing a BART benchmark and predicting emission reductions if BART were implemented, predicting the emission reductions if the alternative program were implemented, and comparing the two. The petitioners argued that this process was not followed because the BART benchmark inappropriately adopted the presumptive emission rate in Appendix Y of the BART guidelines, the 309 program participants misapplied the "clear weight of the evidence" standard, and the participants overstated the effectiveness of the 309 program through inappropriate use of qualitative factors. The court considered each of these sub-arguments in turn and held that the better-than-BART determination was not arbitrary or capricious.

In 2006, the EPA amended the Regional Haze rule and recognized that "the [Appendix Y] presumptions represent[ed] a reasonable estimate of a stringent case BART." 71 Fed. Reg. at 60,619. The EPA decided that states could rely on them when attempting to meet requirements other than BART and avoid the need to perform a source-by-source emissions prediction. The Appendix Y presumptive emission rate was 0.15 pound per million British thermal units.

The petitioners argued that the participants should have determined a BART benchmark by performing a source-by-source analysis of each BART-regulated source, rather than relying on the Appendix Y presumptive rate. The court declined to consider this argument because it was untimely. It explained that, under 42 U.S.C. § 7607(b)(1), a petitioner only has 60 days to bring a lawsuit after an agency acts. In this instance, the petitioners had 60 days from the EPA's publication of the amended Regional Haze Rule. It was published to the Federal Register on October 13th, 2006. The petitions for review were not filed until December 2012 and January 2013, more than six years later. The court therefore lacked jurisdiction over the petitioners' challenge to the EPA regulation authorizing Appendix Y's use in lieu of a source-by-source determination, and so declined to consider it.

The petitioners also argued that the EPA should have considered whether the use of category-wide information was appropriate under 40 C.F.R. § 51.308(e)(2)(i)(C), which mandates the use of source-specific and category-wide information "as appropriate". According to petitioners, certain source-specific and category-wide information demonstrated that the BART benchmark grossly underestimated the sulfur dioxide reductions possible through use of the BART system. This information was provided by Ms. Stamper, the petitioners' expert witness. The court disagreed with the petitioner's contentions because, when the Western Regional Air Partnership submitted its better-than-BART determination in 2010 and the 309 program participants relied on the determination in their 2011 implementation plans, the data cited by the petitioners was not available. The EPA could reasonably conclude that inclusion of this data was infeasible because the determination resulted from years of coordinated efforts that took place before much of the petitioners' data existed. The court concluded that this determination was not arbitrary or capricious, comparing the circumstances to those in San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 620-21 (9th Cir. 2014) (holding that use of an imperfect analysis is not arbitrary or capricious when removal of those imperfections would not be feasible). The court further reasoned that reliance on Ms. Stamper's data would have been invalid under EPA regulations allowing for the use of the presumptive benchmark, noting that imprecision is inherent in simplifying assumptions such as those used to establish that benchmark.

The petitioners' next sub-argument was that the method used to compare the 309 program's effectiveness to the effectiveness of the BART program was improper. They reasoned that the EPA should not have compared the 309 program as a whole to BART but, rather, should have compared the 309 program's "milestones" to the effectiveness of BART. The court declined to entertain the argument because it was only raised in the petitioners' reply brief and was not mentioned in their opening brief. The court also declined to hear the argument because it was "unexhausted". Only "an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review." 42 U.S.C. § 7607(d)(7)(B). The petitioners failed to raise the issue in the EPA proceedings. As such, the issue was unexhausted and could not be heard.

The petitioners further argued that the consideration of qualitative factors when determining its effectiveness was improper, contending that a fully quantitative approach was required by 40 C.F.R. § 51.308(e)(3). The court rejected this argument. In 2006, the EPA amended 40 C.F.R. § 51.308(e)(2)(i) to provide a "clear weight of the evidence" standard as an alternative to the quantitative approach. The EPA clarified this standard as one that "attempt[s] to make use of all available information and data which can inform a decision while recognizing the relative strengths and weaknesses of that information in arriving at the soundest decision possible." Even though the EPA used quantitative examples in crafting that rule, the court held that this did not preclude the use of qualitative factors.

The court then considered each of the four factors the petitioners argued was qualitative to determine the reasonableness of the EPA's decision to utilize them. When comparing the effectiveness of BART to the 309 program, the EPA included "all sources with emissions greater than 100 tons/year of [sulfur dioxide]." This included sources not otherwise subject to BART regulation. The petitioners argued that the EPA should have only considered BART-eligible emission sources. The court disagreed, holding that the EPA could reasonably have interpreted 40 C.F.R § 51.308(e)(2)(i)(D) and (E) as allowing the use of all sources regulated by the 309 program.

The petitioners also argued that the EPA should not have considered emissions reductions from new sources of emissions, as those already would not have been subject to BART; they are regulated separately under the Clean Air Act. The court disagreed, reasoning that the EPA could reasonably conclude that the 309 program would "go beyond the existing regulatory process" in reducing emissions from new sources. It recognizes the EPA's two-fold strategy of regulating emissions for new sources while also encouraging voluntary reductions in emissions through the 309 program. In light of that strategy, it held that the EPA's decision to include emissions from new sources was not arbitrary or capricious.

The petitioners then argued that the EPA should not have relied on the purported benefits of a mass-based cap on emissions because it could not outperform BART. The mass-based cap was designed to allow for an increase in production of emissions-producing sources to accommodate an increased demand for electricity. It assumed that current sources were producing at 85% of their capacity, and estimated potential future emission levels using that assumption. The petitioners argued that many such sources were operating at far less than 85% capacity and, as such, those sources could ultimately exceed those estimated emission levels. The court noted that the EPA had a "reasonable foundation" for disagreeing with the petitioners' conclusion that this made the 309 program less effective than BART, and held that the EPA's decision was not arbitrary or capricious.

The petitioners' final sub-argument was that the EPA should not have considered early reductions in emissions when comparing the 309 program to BART. These were emission reductions that were achieved prior to formal implementation of the 309 program. It reasoned that the early reductions that had already been achieved could not have been causally linked to the 309 program, so they were impermissibly considered when comparing the program's effectiveness to that of BART regulation. The court sided with the EPA, noting that it was not required to show a causal relationship between the already achieved emissions reductions and the 309 program. The already-achieved reductions "tended to support the soundness of a strategy encouraging early reductions through the 309 program" and the EPA's decision to consider them was not arbitrary or capricious.

The second of the petitioners' three main arguments was that the 309 program should not have been approved because only three of the nine eligible states opted to participate in it, while the other six chose BART regulation. The petitioners reasoned that the 309 program could not be effective if only three states implemented it. The EPA opposed the argument as an untimely attack on the Regional Haze Rule. The court disagreed, considering it a timely challenge to the EPA's approval of the states' implementation plans. The court then concluded that the argument was invalid because neither the Clean Air Act nor the EPA's own regulations required participation by a certain number of states or tribes. It examined the EPA's rulemaking process and found that the EPA had not imposed any requirement that a minimum number of states participate.

The court considered the petitioners' argument that the 309 program will be ineffective with so few states participating. Petitioners argued that, even if the EPA wasn't precluded from allowing only three states to participate, it should not have allowed the program to go forward for lack of effectiveness. The court noted that states not participating in the 309 program would still be regulated under BART and held that the EPA could have reasonably concluded that the two different means of regulation would, together, be effective. The petitioners challenged the factual basis for that conclusion, noting that the three states generating the most emissions (California, Nevada, and Arizona) opted not to participate in the program, while the states that did choose to participate only contribute 36% of the emissions over the Colorado Plateau. The program also excluded dozens of coal-fired power plants while only including 15. The court held that, these arguments notwithstanding, the EPA could still have reasonably concluded that the 309 program would achieve the stated purpose of making "'reasonable progress' toward improvement of visibility over the Colorado Plateau."

The petitioners also argued that the exclusions from the 309 program prevented it from qualifying as a regional program, and that the program must be a regional program to satisfy statutory and regulatory purposes. The court disagreed with the assertion that the 309 program was not a regional program, noting that 42 U.S.C. § 7492(c)(1) does not require a minimum number of state participants for a program to qualify as a "regional program".

The petitioner's next sub-argument was that the EPA changed its position on the "critical mass" issue without sufficient explanation, making its decision arbitrary and capricious. The court agreed that unexplained deviations from past practices can indicate an arbitrary and capricious decision, but noted that such an inconsistency first requires analyzing the agency's interpretation. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). In this instance, the court found that the EPA never made a definitive statement that the 309 program required a "critical mass of participating states" to succeed. Since there was no prior policy, there was no inconsistency and the approval of the 309 program was not arbitrary or capricious.

The petitioners' third main argument was that approval of the implementation plans was inappropriate because the EPA failed to consider emissions from the Escalante Coal Plant, New Mexico's second-largest non-BART coal plant. In considering this argument, the court examined the "regulatory and factual setting" for New Mexico's implementation plan. 40 C.F.R. § 51.308(d)(1) requires states to establish reasonable progress goals that would improve visibility on the most impaired days while not reducing visibility on the least impaired days. States must first consider the cost of compliance, the amount of time needed for compliance, the energy and non-air quality environmental impacts of compliance, and remaining useful life of potentially affected sources. Id. § 51.308(d)(1)(i)(A). States must then determine the rate of required progress by comparing the baseline visibility with natural visibility conditions expected by 2064. Id. § 51.308(d)(1)(i)(B). If a state cannot achieve the uniform rate of progress, "it must demonstrate that a slower rate of progress is reasonable and that a greater rate of progress is unreasonable". Id. § 51.308(d)(1)(ii).

New Mexico determined that the uniform rate of progress would not be "reasonably achievable". It used a source-specific study by the Western Regional Air Partnership to argue that it could not achieve natural visibility conditions by 2064. It proposed a less ambitious reduction in emissions. When that proposal came under fire, the state offered to consider additional emission reductions in its analysis for 2013. It did so, but did not consider emissions from the Escalante Coal Plant.

The EPA argued that petitioners had not exhausted the argument and so could not bring it before the court. The court disagreed, holding that the petitioners had properly exhausted the argument because of prior comments to the EPA that had put them on notice. The form of the comments was imperfect. The petitioners did not initially argue that the EPA was required to analyze the Escalante plant, nor did they cite to 40 C.F.R. § 51.308(d). The court still held that the comments were "adequate notification of the general substance of the complaint", citing the standard adopted by S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 891 (D.C. Cir. 2006).

The crux of the petitioners' argument was that New Mexico should have included the Escalante plant in its reasonable-progress analysis, and that the EPA's approval of the state's implementation plan was unreasonable without that inclusion. The court disagreed. It noted that the regulations outlining the four-factor reasonable-progress analysis did not include the source-specific analysis that petitioners insisted was necessary. Rather, that language was a part of the better-than-BART analysis, a distinct and unrelated analysis. Likewise, nothing in the Clean Air Act or the Regional Haze Rule required a source-specific analysis in this instance.

Having rejected all of the petitioner's arguments, the court held that the Environmental Protection Agency did not act arbitrarily or capriciously when it approved the participants' implementation plans. It denied the petitions for review.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/12/12-9596.pdf

Panel: Bacharach, Seymour, Murphy

Date of Issued Opinion: October 21, 2014

Docket Number: No. 12-9596

Decided: Petition for review of final decisions issued by the United States Environmental Protection Agency was denied.

Counsel:
Jenny K. Harbine, Earthjustice, Bozeman, Montana (John Barth, Hygiene, Colorado, and Ashley D. Wilmes, WildEarth Guardians, Boulder, Colorado, with her on the briefs), for Petitioners.

Chloe H. Kolman, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C. (Stephanie J. Talbert, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., Robert G. Dreher, Acting Assistant Attorney General, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; M. Lea Anderson, Of Counsel, United States Environmental Protection Agency, Washington, D.C.;
Matthew C. Marks, Of Counsel, United States Environmental Protection Agency, Washington, D.C.; Brian Tomasovic, Of Counsel, United States Environmental Protection Agency, Dallas, Texas; Sara L. Laumann, Of Counsel, United States Environmental Protection Agency, Denver, Colorado, with her on the brief), for Respondent.

E. Blain Rawson, Ray Quinney & Nebeker, P.C., Salt Lake City, Utah (Emily Smith Loeffler, Quinney & Nebeker, P.C., Salt Lake City, Utah, Michael G. Jenkins, Assistant General Counsel, PacifiCorp Energy with him on the brief), for Intervenor PacifiCorp Energy.

Matthias L. Sayer, Assistant Attorney General, Wyoming Office of Attorney General, Cheyenne, Wyoming (Jay A. Jerde, Deputy Attorney General, Wyoming Office of Attorney General, Cheyenne, Wyoming, with him on the brief), for Intervenor State of Wyoming.

Christopher L. Colclasure, Holland & Hart LLP, Denver, Colorado, for Intervenor Basin Electric Power Cooperative;

Richard L. Alvidrez and Robert H. Clark, Miller Stratvert P.A., Albuquerque, New Mexico; Kallie H. Kuehl, Corporate Counsel, Albuquerque, New Mexico, on the brief for Intervenor Public Service Company of New Mexico.

Jeffrey M. Kendall, General Counsel and William G. Grantham, Assistant General Counsel, for New Mexico Environment Department, on the brief for Intervenor New Mexico Environment Department.

Carol Parker, Assistant City Attorney and Adelia W. Kearny, Deputy City Attorney, Albuquerque, New Mexico, on the brief for Intervenor City of Albuquerque.

H. Michael Keller and Mary Jane E. Galvin-Wagg, Van Cott, Salt Lake City, Utah; Mason Baker, General Counsel, Salt Lake City, Utah, on the brief for Intervenor Utah Associated Municipal Power Systems.

John E. Swallow, Utah Attorney General and Christian C. Stephens, Assistant Attorney General, Salt Lake City, Utah; Craig W. Anderson, Division Chief and Assistant Attorney General, Environment Division, Utah Attorney General's Office, Salt Lake City, Utah, on the brief for Intervenor Utah Division of Air Quality.

Paul M. Seby and Marian C. Larsen, Seby Larsen LLP, Denver, Colorado, on the brief for Amicus Curiae American Coalition for Clean Coal Electricity.

Author: Bacharach

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 11/02/2014 01:52 PM     10th Circuit     Comments (0)  

November 1, 2014
  Butler v. National Community Renaissance of California - Ninth Circuit
Headline: Ninth Circuit panel affirms the district court's grant of a motion to dismiss for the running of the statute of limitations on a 42 U.S.C. § 1983 action for an alleged warrantless search of a tenant's apartment holding that the amended complaints did not relate back under Cal. Civ. P. Code § 474 because plaintiff was not ignorant of the appellees' names or identities at the time the original complaint was filed, that the amended complaints did not relate back under Fed. R. Civ. P.15(c)(1)(C) because plaintiff did not establish that any of the appellees knew or should have known that her lawsuit would have been brought against them but for her mistake, and that the district court did not err in rejecting, at the pleading stage, plaintiff's claim of equitable tolling under California law.
Area of Law: Civil Procedure

Issue(s) Presented: Under Federal Rule of Civil Procedure 15(c)(1) and California Code of Civil Procedure section 473(a)(1), does a plaintiff's amended complaint containing names of defendants relate back to the original complaint when the original complaint did not contain the names of the defendants, the location of the alleged violation, or any fictitious names?

Whether equitable tolling under California law relieves a plaintiff from the statute of limitations when the plaintiff's tort claims were pending against some of the defendants for ten days?

Brief Summary: The only defendant listed in the caption of Butler's original complaint was National Community Renaissance Corporation ("NCORE"). The complaint alleged:

On April 18th 2007 apartment manager in absence of a search warrant gave Section 8 investigator and City employee and Sheriff deputies the keys to my apartment who then entered without search warrant or consent And began searching my apartment. Sheriff deputies removed me from My home and issued me a citation and then released me at that point. And in that situation they violated my 4th amendment right.

Subsequently, Butler filed four amendments to her complaint. Following the fourth amended complaint, all defendants except for NCORE filed motions to dismiss alleging Butler's claims in the amended complaint were barred by the statute of limitations and did not relate back to the original complaint. The trial court granted the motions with prejudice.

Interpreting Rule 15(c) as amended, the appellate court reviewed Butler's amendments under both Rule 15(c) and California law to apply the more permissive relation back standard.

The appellate court recognized that California Code of Civil Procedure section 473(a)(1) does not contain an express provision for relation back of amendments. Case law recognizes an exception to the general rule of no relation back where a plaintiff who is genuinely ignorant of a defendant's identity at the time of the original complaint, commits an excusable mistake attributable to dual entities with strikingly similar business names or the use of fictitious names.

The appellate court held that the record supported the trial court's finding that Butler was not genuinely ignorant of the identities of the defendants at the time of the original complaint because Butler contacted and complained about each of the defendants before the original complaint was filed.

Under Rule 15(c), the appellate court held that Butler failed to establish any of the defendants knew or should have known they would have been named as defendants, but for Butler's mistake because the original complaint did not contain any names of the individuals or organizations involved in the search of Butler's apartment. Further, Butler failed to identify the location of her apartment and only listed "City employee" and "Section 8 investigator" as the persons involved. Because the city employee and section 8 investigator could be in any county where the named defendant, NCORE maintains an apartment, there was no way for the defendants to have ascertained they would be the subject of a lawsuit. Therefore, the amended complaints did not relate back under Rule 15(c).

The trial court properly tolled Butler's claims against Palmdale and Barraza for 10 days. Nevertheless, even with the additional 10 days, Butler's claims were untimely. Lastly, the trial court properly found that equitable tolling did not apply against HACoLA and D'Errico.

Extended Summary: The 9th Circuit panel reviewed both the application of the statute of limitations and the relation back doctrine de novo.

The original complaint only named NCORE as a defendant. The complaint was one page, requested to proceed in forma pauperis and requested an attorney. The complaint alleged:

On April 18th 2007 apartment manager in absence of a search warrant gave Section 8 investigator and City employee and Sheriff deputies the keys to my apartment who then entered without search warrant or consent And began searching my apartment. Sheriff deputies removed me from My home and issued me a citation and then released me at that point. And in that situation they violated my 4th amendment right.

Butler filed a First Amended Complaint on April 22, 2009 adding the Housing Authority of the County of Los Angeles ("HACoLA"). The trial court, sua sponte dismissed the first amended complaint and through a series of amendments and sua sponte dismissals, Butler filed a third amended complaint on August 12, 2009. The third amended complaint named NCORE, HACoLA, the City of Palmdale ("Palmdale"), Oscar Barraza, in his individual capacity, and "Mr. D'Errico", in his individual capacity.

Oscar Barraza was alleged in the third amended complaint to be a manager and employee of NCORE and Mr. D'Errico was alleged to be the Section 8 investigator.

Proofs of service were filed and on September 8, 2009, Palmdale and Barraza filed a motion to dismiss the third amended complaint. On September 10, 2009 NCORE also filed a motion to dismiss. The trial court granted Palmdale and Barraza's motion with leave to amend concluding Butler's claims against Palmdale and Barraza were untimely and did not relate back to any of Butler's prior pleadings.

On March 15, 2010 Butler filed a fourth amended complaint naming the same defendants as the third amended complaint and setting forth in greater detail the relationships between the defendants, Butler's rental history with HACoLA, and an allegation that Butler filed a claim with Palmdale on June 11, 2007 that was denied on June 28, 2007.

Palmdale, Barraza, HACoLA, and D'Errico filed motions to dismiss asserting Butler's claims were barred by the statute of limitations.

The trial court granted the motions with prejudice, finding that the original complaint did not sufficiently identify HACoLA, D'Errico, Palmdale, or Barraza as defendants. The court found that because Butler knew of defendants' existence, status, and roles at the time, Butler did not make a mistake concerning the identity and therefore claims did not relate back under Federal Rule of Civil Procedure 15(c)(1). Additionally the court found that Butler did not name any fictitious defendants in her original complaint and therefore her claims did not relate back under California Law.

The trial court also found that Butler's claim with Palmdale tolled the statute of limitations for only ten days while it was pending but did not toll the statute as to Palmdale, Barraza, or D'Errico because they were not named until the second and third amended complaints. Additionally, because HACoLA was never named as a defendant in a tort claim, there was no tolling against it.

The trial court also rejected Butler's argument that the policy of deciding civil rights cases on the merits outweighed the policy underlying the statute of limitations, finding that both policies were of equal merit.

The court concluded that Butler's case would proceed against NCORE as the sole defendant.

On appeal, Butler contended that she sufficiently identified all the defendants in her original complaint. The 9th Circuit panel rejected Butler's contention because the body of the original complaint did not contain any names of any individuals or organizations involved in the search of her apartment.

Next, the appellate court determined the governing law on the relation back of claims, holding that both Rule 15(c) and California law had to be considered because the 1991 amendment to Rule 15(c) superseded Cabreles and Merrit to the extent they held that state law exclusively governs the relation back of amendments in § 1983 cases.

Interpreting Rule 15(c) as amended, the appellate court reviewed Butler's amendments under both Rule 15(c) and California law to apply the more permissive relation back standard.

The appellate court recognized that California Code of Civil Procedure section 473(a)(1) does not contain an express provision for relation back of amendments. Case law recognizes an exception to the general rule of no relation back where a plaintiff, who is genuinely ignorant of a defendant's identity at the time of the original complaint, commits an excusable mistake attributable to dual entities with strikingly similar business names or the use of fictitious names.

The appellate court held that the record supported the trial court's finding that Butler was not genuinely ignorant of the identities of the defendants at the time of the original complaint because Butler contacted and complained about each of the defendants before the original complaint was filed.

Under Rule 15(c), an amendment relates back to the date of the original pleading when 1) the basic claim arises out of the conduct set forth in the original pleading; 2) the party to be brought in received such notice that it will not be prejudiced in maintaining its defense; 3) the party knew or should have known that, but for mistake concerning identity, the action would have been brought against it. The second and third requirements must be fulfilled within 120 days for the filing of the original complaint.

The only dispute in the instant case was whether the defendants knew or should have known they would have been named as defendants but for an error.

The appellate court held that Butler failed to establish any of the defendants knew or should have known they would have been named as defendants, but for Butler's mistake, because the original complaint did not contain any names of the individuals or organizations involved in the search of Butler's apartment. Further, Butler failed to identify the location of her apartment and only listed "City employee" and "Section 8 investigator" as the persons involved. Because the city employee and section 8 investigator could be in any county where the named defendant NCORE maintains an apartment, there was no way for the defendants to have ascertained they would be the subject of a lawsuit. Therefore, the amended complaints did not relate back under Rule 15(c).

The appellate court also held that a trial court is free to address equitable tolling at the pleading stage and that the trial court properly tolled Butler's claims against Palmdale and Barraza for 10 days. Nevertheless, even with the additional 10 days, Butler's claims were untimely. Lastly, the trial court properly found that equitable tolling did not apply against HACoLA and D'Errico.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/09/12/11-55806.pdf

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

Date of Issued Opinion: September 12, 2014

Docket Number: 11-55806

Decided: Affirmed

Case Alert Author: Brandon Powell

Counsel: Jeremy B. Rosen (argued), Horvitz & Levy, L.L.P., Encino, California; Andrew Wilhelm and Ashley Cook, certified law students, Ninth Circuit Appellate Advocacy Clinic, Pepperdine University School of Law, Malibu, California, for Plaintiff-Appellant Zina Butler. Toussaint S. Bailey (argued), Steven R. Orr, and Aaron C. O'Dell, Richards, Watson & Gershon, P.C., Los Angeles, California, for Defendants-Appellees City of Palmdale and Oscar Barraza. Nicole A. Davis Tinkham and Christian E. Foy Nagy, Collins Collins Muir & Stewart, L.L.P., South Pasadena, California, for Defendants-Appellees Housing Authority of the County of Los Angeles and Lee D'Errico.

Author of Opinion: Bennett, District Judge.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2014 04:41 PM     9th Circuit     Comments (0)  

  Tio Dinero Sessoms v Randy Grounds, Warden - Ninth Circuit
Headline: Ninth Circuit reverses the denial of a habeas corpus petition based on the California Court of Appeal's unreasonable application of U.S. Supreme Court precedent in finding that a defendant's request for an attorney was not unequivocal or unambiguous.

Area of Law: Constitutional Law, Criminal Procedure

Issue(s) Presented: Whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether a defendant was asking for an attorney based on the following statements when looked at together:
. "There wouldn't be any possible way that I could have a-a lawyer present while we do this?"
. "Yeah, that's what my dad asked me to ask you guys...uh, give me a lawyer."

Brief Summary: Tio Sessoms, the defendant, stabbed and killed a Sheriff while burglarizing his home. Sessoms then fled from California but later surrendered to police. Sessoms was in custody awaiting interrogation for approximately four days before detectives from California arrived. Within 40 seconds of the detectives entering the interrogation room Sessoms said "There wouldn't be any possible way that I could have a-a lawyer present while we do this?" and "Yeah, that's what my dad asked me to ask you guys...uh, give me a lawyer." The interrogation continued, the detectives cautioned Sessoms against speaking to an attorney and then read the Miranda warning. Sessoms then agreed to speak with the detectives and made incriminating statements.

Sessoms filed a motion to suppress the incriminating statements and then after being convicted moved for a new trial based on prejudicial Miranda warning. The trial court denied both motions and sentenced Sessoms to life without parole.

The California Court of Appeal ruled that Sessoms's statements did not qualify as an unequivocal or unambiguous request for counsel and as such neither statement was sufficiently clear that a reasonable officer would understand the statements to be a request for an attorney.

Sessoms then filed a federal habeas petition arguing that he had invoked his right to counsel, but the district court denied the petition.

The case eventually warranted an en banc review in light of new caselaw that suggests that Davis's requirement of an unambiguous invocation of a right to counsel applies to pre-Miranda statements.

Setting the framework for review here, the 9th Circuit went over the evolution of Miranda and the subsequent cases. Based on the totality of circumstances, the 9th Circuit held that while the Court of Appeal correctly identified the governing cases and the facts of the case that the Court of Appeal inappropriately applied that caselaw to the facts of this case. The Court of Appeal erred by considering the two statements completely separate from each other and without any context to the rest of the interrogation.

Sessoms's first request that "[t]here wouldn't be any possible way that I could have a-a lawyer present while we do this?" was deemed to be a request coached in a deferential tone rather than an ambiguous request. Similarly, Sessoms's second request of "Give me a lawyer" was determined to have only one reasonable interpretation: that he was asking for a lawyer.

Ultimately Sessoms's statements, when taken together, were far from being ambiguous and the case was remanded for further proceedings.

Extended Summary: In 1999 Tio Sessoms, the defendant, repeatedly stabbed and killed a Sheriff while burglarizing his home. Sessoms then fled from California to Oklahoma where he surrendered to police approximately 3 weeks later upon learning there was a warrant for his arrest. Sessoms was then in custody for four days while waiting for detectives from California to fly out to question him. When the detectives did arrive there was a very brief exchange of pleasantries and, approximately 40 seconds after detectives entered the room, Sessoms said "There wouldn't be any possible way that I could have a-a lawyer present while we do this?" and "Yeah, that's what my dad asked me to ask you guys...uh, give me a lawyer." Rather than stopping the interrogation, the detectives warned Sessoms about the "risks" of speaking with an attorney and told him they already had all the evidence against him. It was only after all of this occurred that the detectives read Sessoms his Miranda rights, at which point Sessoms agreed to talk and made incriminating statements.

The trial court denied Sessoms's motion to suppress the incriminating statements and Sessoms was convicted at trial of first-degree murder, robbery, and burglary. Sessoms moved for a new trial based on prejudicial Miranda error, but the trial court denied the motion and Sessoms was sentenced to life without parole.

Upon appeal, the Court of Appeal ruled that, while Sessoms's statements explicitly referred to an attorney, neither statement was an unequivocal or unambiguous request for counsel and as such neither statement was sufficiently clear that a reasonable officer would understand the statements to be a request for an attorney.

Sessoms then filed a federal habeas petition arguing that he had invoked his right to counsel, but the district court denied the petition.

A divided three-judge 9th Circuit panel upheld the district court's denial of Sessoms's habeas petition on the grounds that Sessoms's statements were made prior to his Miranda waiver. In a rehearing en banc, the 9th Circuit reasoned that Davis's requirement that a request for counsel be unambiguous only applied after a suspect had been informed of his Miranda rights and reversed the district court's denial based of habeas relief.

The Supreme Court then granted the state's petition for a writ of certiorari and remanded the case in light of new caselaw that suggested that Davis's requirement of an unambiguous invocation of a right to counsel applied to pre-Miranda statements. The case once again went before the 9th Circuit for rehearing en banc.

Setting the framework for review here, the 9th Circuit reviewed the evolution of Miranda and the subsequent cases. Miranda set a clear bright-line rule that a person must be warned that he has the right to remain silent and has the right to the presence of an attorney in order to protect his 5th Amendment's right against self-incrimination. This was particularly important given that modern in-custody interrogations have become largely psychologically oriented. Later, in Edwards v. Arizona, the Court explained that, once the right to counsel is asserted, the interrogation must immediately stop. In doing so, the Court hoped to ensure that officers would not badger defendants into waiving Miranda rights. Three years later, in Smith, the Court ruled that questioning must cease after the first request for counsel and that courts should not examine subsequent responses to questions to determine whether initial requests were ambiguous. In Davis, however, the Court held that a suspect must unambiguously request counsel. The Court has also held in two subsequent cases that merely remaining mute is not sufficient to invoke the privilege.

The Court then applied the above mentioned caselaw to the facts here and determined that Sessoms unequivocally claimed the privilege.

The 9th Circuit held that while the Court of Appeal correctly identified the governing cases, it inappropriately applied that caselaw to the facts of this case by considering Sessoms's two statements completely separate from each other and without any context to the rest of the interrogation.

Beginning with the circumstances leading up to Sessoms's requests, the detectives used many of the tactics that Miranda was designed to prevent: no warning was provided up front and the detectives immediately delved into the heart of their questions. This type of situation presents the danger that people like Sessoms could feel compelled to speak despite their constitutional rights. Despite these initial pressures, however, Sessoms still managed to request counsel not once, but twice.

Sessoms's first request that "[t]here wouldn't be any possible way that I could have a-a lawyer present while we do this?" was not simply a question about if he should speak to an attorney; it was a request coached in a deferential tone. There is also little doubt that the detectives understood the question given that, when Sessoms later asked in paralleled phrasing if it would be possible for him to speak with his father, the detectives immediately responded "Well no...." Consequently, the only appropriate response to Sessoms's first request would have been to read him his Miranda rights at that time.

Sessoms then followed up this first request with a second request with even plainer language: "give me a lawyer." The Court of Appeal reasoned that this was merely Sessoms stating his father's advice to him, yet the only reasonable interpretation of those words is that Sessoms was requesting an attorney. While it can be argued, inappropriately in the court's opinion, that the first request may have been ambiguous, when taken in conjunction with the second request there was no room for doubt that Sessoms wanted a lawyer. This point is driven home by the fact that, after Sessoms made his requests, the detective felt the need to caution Sessoms against speaking to a lawyer prior to speaking with the detectives; after all, "[w]hy would [the detective] need to talk Sessoms out of an attorney if he hadn't understood that Sessoms wanted an attorney?"

Given the importance of these circumstances and the context they shed on Sessoms's requests, the Court held that California Court of Appeal's finding that Sessoms's request for counsel was ambiguous to be unreasonable and reversed the district court's judgment and remanded the case for further proceedings.

Dissents:
Chief Judge Kozinski reluctantly dissented, explaining that there was no doubt that the detectives were aware that Sessoms was asking for counsel and used their leverage to redirect him, but that the correct question is simply whether it was unreasonable for the state courts to conclude that a reasonable officer would have been confused as to whether Sessoms was asking for an attorney. Despite this, however, Chief Judge Kozinski also stated a certain joy that the majority did not share the same view given the relatively dirty tactics used to obtain Sessoms's statements here.

Circuit Judge Callahan dissented separately to state that the Supreme Court's decision should have precluded the majority opinion from finding that Sessoms's statements were so unambiguous as to render the Court of Appeal's opinion unreasonable.

Circuit Judge Murguia, with whom Kozinski, Chief Judge and Silverman, Callahan, Ikuta, Circuit Judges join, also dissented on the grounds that the correct standard of review for reversing the district court was whether "any fairminded jurist could determine" that Sessoms's reference to an attorney might have made a reasonable officer believe only that Sessoms might be invoking the right to counsel. Ultimately, the dissenting judges believed such a fairminded jurist could reach such a decision here and thus it was inappropriate to reverse the trial court's ruling.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/09/22/08-17790.pdf

Panel: Alex Kozinski, Chief Judge and Mary Schroeder, Barry Silverman, M. Margaret McKeown, Kim Wardlaw, Raymond Fisher, Richard Paez, Conseulo Callahan, Milan Smith, Jr., Sandra Ikuta, and Mary Murguia, Circuit Judges.

Date of Issued Opinion: September 22, 2014

Docket Number: 08-17790

Decided: Reversed.

Case Alert Author: Seth DuMouchel

Counsel: Eric Weaver (argued) for Petitioner-Appellant.

Jeffrey Firestone (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Michael P. Farrell, Senior Assistant Attorney General; and Charles A. French, Supervising Deputy Attorney General, Sacramento, California for Respondent-Appellee.

Peter C. Pfaffenroth, HL Rogers and Brian A. Fox, Sidley Austin LLP, Washington D.C.; Mark E. Haddad and Douglas A. Axel, Sidley Austin LLP, Los Angeles, California; and David M. Porter, Office of the Federal Defender, Sacramento, California, for Amicus Curiae National Association of Criminal Defense Lawyers.

Author of Opinion: McKeown, Circuit Judge.

Case Alert Circuit Supervisor: Professor

    Posted By: Glenn Koppel @ 11/01/2014 04:39 PM     9th Circuit     Comments (0)  

  United States of America v. Johnson - Ninth Circuit
Headline: Ninth Circuit panel affirms the convictions of Antoine Lamont Johnson and Michael Dennis Williams for armed robbery and murder.

Area of Law: Constitutional Law, Sixth Amendment right to confront witnesses, Fifth Amendment right to silence.

Issue(s) Presented: Does the "forfeiture exception" to the Confrontation Clause of the Sixth Amendment require that proof of the defendant's responsibility for the witness's absence be shown by only a preponderance of the evidence as provided by Federal Rule of Evidence 804(b)(6), or, in light of Crawford and its progeny, by clear and convincing evidence?

Was it proper for the trial court to simply give the jury limiting instructions for hearsay testimony admitted under the "forfeiture exception" to the Confrontation Clause, which was used against Johnson, instead of granting Williams's request for a separate trial?

Is mentioning a defendant's failure to present exculpatory evidence the same as commenting on a decision not to testify, thereby violating the Fifth Amendment's right to silence?

Brief Summary: On March 1, 2004, four assailants robbed an armored truck in South Central Los Angeles, killing one of the security guards. On June 19, 2007, appellants Antoine Johnson and Michael Williams were indicted by a grand jury for their involvement in the robbery and murder.

Several out-of-court statements made by an informant, Veronica Burgess, were introduced at trial. These statements positively identified Johnson as one of the assailants; however Burgess was less sure about Williams's involvement. Burgess was unavailable to testify as she had disappeared shortly before trial.

The Government presented evidence at the pretrial hearing that Johnson was responsible for Burgess's intimidation and disappearance. The court found there was sufficient evidence to support this inference and allowed Burgess's testimony to be introduced.

Johnson argued the trial court erred in admitting Burgess's testimony. The Confrontation Clause allows "testimonial" hearsay testimony by an unavailable witness to be admitted in evidence only when the defendant has had a prior opportunity to confront and cross-examine the witness. However, under the forfeiture exception, a defendant forfeits his right under the Confrontation Clause if it can be shown he intentionally acted to prevent the witness's availability. Johnson argued that under Thevis, a defendant only forfeits his right to confront a witness if this intentional misconduct can be proven by "clear and convincing evidence."

The panel held that, after Crawford, the Confrontation Clause no longer requires a reliability analysis in order to determine whether testimonial hearsay testimony against a defendant from an unavailable witness will be admissible. Since reliability of this hearsay testimony is no longer an issue, the clear and convincing evidence standard no longer applies. Further, when the Federal Rules of Evidence were amended in 1997 to include the forfeiture exception, the Advisory Committee adopted the preponderance of the evidence standard, noting "[t]he usual Rule 104(a) preponderance of the evidence standard has been adopted in light of the behavior the new Rule 804(b)(6) seeks to discourage."

Johnson further argued the Government violated his Fifth Amendment right to silence when, in closing, the prosecution commented that Johnson had failed to explain presence of his DNA on a wig that was purportedly worn by one of the assailants. The Court ruled that the prosecution's comments focused on Johnson's failure to present evidence, not his failure to testify..

Williams also argued that statements made by an unindicted co-conspirator were improperly admitted. The Court held they were properly admitted under the "statement against interest" exception to the Federal Rules of Evidence, Fed. R. Evid. 804(b)(3).

The court found no trial court errors, and affirmed the convictions of both Johnson and Williams.


Extended Summary: On March 1, 2004, four assailants ambushed an armored truck that was making a cash delivery to a Bank of America in South Central Los Angeles. During the robbery, one of the security guards was shot and killed. On June 19, 2007, appellants Antoine Johnson and Michael Williams, both of whom were affiliated with a group known as the Hoover Street Gang, were indicted by a grand jury for their involvement in the robbery and murder. The charges carried a possible penalty of death.

At trial, the government introduced several out-of-court statements made by an informant, Veronica Burgess. These statements form the basis for the Sixth Amendment issues on appeal.

Burgess claimed to the police she overheard several Hoover Street Gang members planning the heist. She identified Johnson from a photo spread as one of the participants. She later repeated this accusation in front of the grand jury. Burgess also identified Williams from the photo spread, but later confused him with a different individual. Burgess was to be an important witness but shortly before trial the Government could no longer locate her.

At the pretrial hearing, the Government presented evidence showing Burgess had received death threats starting the day after defense attorneys were permitted to disclose the identity of the witnesses to the defendants. On that same day, Johnson's counsel had visited him in prison. Burgess's live-in boyfriend, Patrick Smith, told police the Hoovers had placed a "hit" on Burgess for "snitching on a boy fighting death." Smith also told police the "mother of one of the guys in jail looking at death" had contacted Smith, and was trying to find Burgess. Burgess then disappeared.

The Government claimed at the pretrial hearing that there was sufficient evidence to infer the "boy fighting death" was Johnson, and Johnson had informed members of the Hoover gang that Burgess was set to testify against him. The Government presented testimony from a prison guard that inmates in the "Special Housing Unit," where Johnson was confined, routinely communicated with other inmates by speaking through the air vents and passing written messages through the plumbing system. The Government contended Johnson had both the means and the motive to threaten Burgess. Although Burgess had consistently identified Johnson, she had failed to do so with Williams. While Burgess had identified other individuals besides Johnson, only Johnson was facing the death penalty. Finally, at the pretrial hearing, the Government was able to establish Johnson's mother was involved with a known Hoover gang member, suggesting not only that Johnson had close ties to the gang, but also that Johnson's mother was the woman looking for Burgess.

Johnson denied that he threatened Burgess. His counsel insisted Johnson had no way of communicating with Burgess or anyone on the outside, and other suspects could have learned of Burgess's identity. Johnson's private investigator testified that Burgess had recanted her identification of Johnson and claimed Burgess told the investigator she only implicated Johnson to collect reward money.

At the hearing, it was found the Government had presented sufficient evidence to establish Johnson was responsible for Burgess's absence. Johnson argued that this fact had not been established by clear and convincing evidence and Burgess's prior testimony should therefore not be admitted. But the judge at the hearing ruled that the preponderance standard of Fed. R. Evid. Rule 804 applied and admitted Burgess's prior testimony.

The evidence presented at trial was substantial. Testimony was presented from Jamal Dunagan, another Hoover gang member, to the effect that both Johnson and Williams had confessed to the crime. Dunagan also testified about statements made to Dunagan by Derrick Maddox, an uncharged co-conspirator. Maddox gave Dunagan a detailed account of the crime, including the extensive involvement of Johnson and Williams. DNA evidence was introduced placing both Johnson and Williams at the crime scene. Both defendants were convicted for conspiracy, robbery, and discharging a firearm causing death. They each received a life sentence.

The Confrontation Clause of the Sixth Amendment bars the admissibility of testimonial hearsay when the defendant has not had an opportunity to confront and cross-examine the declarant, subject to certain limited exceptions. Crawford, 541 U.S. 36, 59 (2004). Burgess's statements were testimonial because they were given in front of a grand jury and to the police. But a defendant may forfeit his confrontation right if the defendant is responsible for the witness's unavailability.

On appeal, Johnson argued that introduction of Burgess's out-of-court statements violated his confrontation rights because the government failed to prove by clear and convincing evidence that he intentionally caused Burgess's absence. Johnson relied upon United States v. Thevis, which held that the clear and convincing standard generally applies whenever the reliability of evidence is at issue and should therefore apply in the forfeiture context as well.

The Ninth Circuit panel ruled that, after Crawford, the clear and convincing standard is no longer applicable because "reliability is no longer the touchstone of confrontation analysis." The panel noted that "the forfeiture exception is consistent with the Confrontation Clause, not because it is a means for determining whether hearsay is reliable, but because it is an equitable doctrine designed to prevent defendants from profiting from their own wrongdoing."

Therefore, the trial court did not err in concluding the Government had produced sufficient evidence to demonstrate Johnson had intentionally prevented Burgess from testifying.

Johnson also claimed the prosecution infringed his right to silence by commenting, in its closing argument, on Johnson's failure to explain the presence of his DNA on a wig purportedly worn by one of the assailants. Notwithstanding that "it is well established that a defendant's right to silence prohibits the Government from commenting on his or her decision not to testify," the panel held the Government is permitted to "call attention to the defendant's failure to present exculpatory evidence more generally." The Court reasoned that the government had focused on Johnson's failure to present evidence, not on his failure to testify, observing that Johnson could have rebutted the Government's DNA evidence in other ways besides his own testimony, such as by presenting expert witness testimony.

Williams also argued the district court improperly admitted inculpatory hearsay statements of Derrick Maddox, who was involved in this crime but uncharged. However, the court found the statements were properly admitted under the "statement against interest" exception to the hearsay rule. Fed. R. Evid. 804(b)(3).

The convictions of Johnson and Williams were affirmed.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/09/12/10-50401.pdf

Panel: Mary M. Schroeder and Richard R. Clifton, Circuit Judges, and John R. Tunheim, District Judge.

Date of Issued Opinion: September 12, 2014

Docket Number: 10-50401

Decided: Affirmed

Case Alert Author: Michael Zatlin

Counsel: Benjamin L. Coleman, Coleman & Balogh, LLP, San Diego, California; Ethan A. Balogh (argued), Coleman & Balogh LLP, San Francisco, California, for Defendant-Appellant Antoine Lamont Johnson. John C. Lemon (argued), San Diego, California, for Defendant-Appellant Michael Dennis Williams. Andre Birotte, United States Attorney, Robert E. Dugdale, Karen I. Meyer, and Elizabeth Yang, (argued), Assistant United States Attorneys, Los Angeles, California, for Plaintiff-Appellee United States of America

Author of Opinion: Schroeder, Circuit Judge.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2014 04:37 PM     1st Circuit     Comments (0)  

October 31, 2014
  Lightfoot v. Cendant Mortgage Corp.
Headline: Ninth Circuit Affirms the Dismissal of Claims Against Fannie Mae and Affirms the Holding that Fannie Mae's Federal Corporate Charter Confers Federal Question Jurisdiction Over Claims.

Area of Law: Civil Procedure; Federal Question Jurisdiction

Issue(s) Presented: Whether the sue-and-be-sued clause in Fannie Mae's federal corporate charter confers federal question jurisdiction over claims brought by or against Fannie Mae.

Brief Summary:

The Ninth Circuit panel held that the sue-and-be-sued clause in Fannie Mae's federal charter conferred federal question jurisdiction over suits in which Fannie Mae is a party and that the district court had subject matter jurisdiction over plaintiffs' claims. The Court thus affirmed the district court's dismissal of plaintiffs' claims against Fannie Mae.

First, the majority opinion discussed the language of the sue-and-be sued clause in Fannie Mae's charter, which authorizes Fannie Mae "to sue and be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal." The Court held that this language confers federal question jurisdiction over claims brought by and against Fannie Mae, based on the clear rule for construing sue-and-be sued clauses for federally chartered corporations set forth in Red Cross which held that "a congressional charter's 'sue and be sued' provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts.".

Second, the majority opinion addressed the phrase "court of competent jurisdiction" contained in Fannie Mae's sue-and-be sued clause, and opined that Congress was simply modernizing Fannie Mae's charter. The opinion reasoned that the Fannie Mae's sue-and-be-sued clause (1) retained specific reference to federal courts sufficient to confer federal question jurisdiction and (2) could be read to emphasize that the clause did not authorize or require the exercise of subject matter jurisdiction by a state court with narrow specialized jurisdiction.

Third, the majority opinion discussed the legislative history of the 1954 and 1974 amendments to the Fannie Mae charter, and found no evidence that the change to Fannie Mae's sue-and-be sued clause was part of the move toward privatization of Fannie Mae.

Lastly, the majority opinion addressed the language regarding Fannie Mae's principal place of business in the 1974 amendment and opined that the referenced "jurisdiction" is almost certainly a reference to personal jurisdiction.


Dissent: District Judge Stein dissented from the majority opinion and opined that the phrase "of competent jurisdiction" does not confer automatic federal subject matter jurisdiction over any action to which Fannie Mae is a party and, thus, jurisdiction must arise from some other source.


Extended Summary: Following foreclosure proceedings initiated by the Federal National Mortgage Association ("Fannie Mae"), Plaintiffs Beverly Ann Hollis-Arlington and Crystal Monique Lightfoot filed two suits in the United States District Court for the Central District of California, alleging numerous state- and federal-law claims against Fannie Mae and other defendants. The district court dismissed both suits and this Court affirmed on appeal. Plaintiffs then filed the present suit in California state court, and Fannie Mae removed to federal court. Plaintiffs' motion to remand was denied, and the district court dismissed all of Plaintiffs' claims as barred by res judicata and collateral estoppel. Plaintiffs appealed the district court's judgment, arguing that the district court lacked subject matter jurisdiction over their claims. This Court initially affirmed in an unpublished opinion and later withdrew that disposition, ordering the parties brief whether Fannie Mae's federal charter granted the district court subject matter jurisdiction.

First, the majority opinion discussed the language of the sue-and-be sued clause in Fannie Mae's charter, which authorizes Fannie Mae "to sue and be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal." The opinion held that this language confers federal question jurisdiction over claims brought by and against Fannie Mae, based on the clear rule for construing sue-and-be sued clauses for federally chartered corporations set forth in American Red Cross v. S.G., 505 U.S. 247 (1992).

The majority opinion walked through the reasoning in Red Cross, summarizing the line of cases that established the "rule" that when federal charters "expressly authoriz[e] the organization to sue and be sued in federal courts . . . the provision extends beyond a mere grant of general corporate capacity to sue, and suffices to confer federal jurisdiction." See Osborn v. Bank of the United States, Bank of the United States v. Deveaux, Bankers Trust Co. v. Texas & Pacific Railway, and D'Oench, Duhme & Co. v. FDIC.

Second, the majority opinion addressed the phrase "court of competent jurisdiction" contained in Fannie Mae's sue-and-be sued clause. The opinion disagreed with the dissent's argument that Congress eliminated federal question jurisdiction by replacing the phrase "court of law or equity" with "court of competent jurisdiction." The opinion reasoned that such elimination would impose a severe new restraint on Fannie Mae's ability to litigate in federal court and, since neither the House nor the Senate commented on a change of that sort, there was no indication that Congress intended to eliminate federal question jurisdiction.

The opinion also reasoned that the most likely explanation for replacing the phrase "court of law or equity" with "court of competent jurisdiction" is that Congress was simply modernizing Fannie Mae's charter, since the federal courts and almost every state had abandoned the law/equity division, and since Congress had removed a number of references to "law or equity" in the statutes that defined federal district court jurisdiction.

The opinion then reiterated that cases from Deveaux to D'Oench put Congress on notice that a specific reference to federal courts was sufficient to confer jurisdiction. Here, the 1954 amendment of Fannie Mae's sue-and-be-sued clause retained "the very words the Court had recently held sufficient to confer such jurisdiction in D'Oench." Further, the opinion emphasized that Congress knew how to eliminate federal question jurisdiction because it did so by deleting the reference to federal courts in the Federal Savings and Loan Insurance Corporation ("FSLIC") charter that same year.

The majority opinion next disagreed with the dissent's argument that this majority holding rendered superfluous the phrase "court of competent jurisdiction." The opinion found that Fannie Mae's sue-and-be-sued clause could be read to emphasize that the clause did not authorize or require the exercise of subject matter jurisdiction by state courts with narrow specialized jurisdiction (citing Osborn), reasoniing that Congress added the phrase "court of competent jurisdiction" to Fannie Mae's charter in the 1950's in response to a general concern about the extent of federal authority to require state courts to hear cases brought pursuant to federal statutes.

Third, reviewing the legislative history of the 1954 and 1974 amendments to the Fannie Mae charter, the majority found no evidence that the change to Fannie Mae's sue-and-be sued clause was part of the move toward privatization of Fannie Mae. The majority opinion reasoned that Congress used the phrase "court of competent jurisdiction" in contexts that had nothing to do with either Fannie Mae or privatization; that the House Report never mentioned the change to Fannie Mae's sue-and-be-sued clause despite going into great detail on other provisions designed to privatize Fannie Mae; that Congress eliminated federal question jurisdiction from the FSLIC charter; and that Congress changed the Home Loan Bank Board's sue-and-be-sued clause without relation to privatization.

The opinion further noted that in 1968 Congress split Fannie Mae into two corporations - Fannie Mae and the Government National Mortgage Association ("Ginnie Mae") - and both corporations kept the same sue-and-be-sued clause, despite the fact that Fannie Mae was entirely privately owned and Ginnie Mae was entirely federally owned. The majority thus concluded that, if the phrase "court of competent jurisdiction" had been used in 1954 as part of an overall plan to privatize Fannie Mae and to limit its access to federal courts, then Congress would not have used the same phrase in Ginnie Mae's charter.

Lastly, the majority opinion addressed the language regarding Fannie Mae's principal place of business in the 1974 amendment, which was changed to read as: "Fannie Mae shall maintain its principal office in the District of Columbia or the metropolitan area thereof and shall be deemed, for purposes of jurisdiction and venue in civil actions, to be a District of Columbia corporation." The majority disagreed with the dissent's argument that this change showed that Congress sought to authorize diversity jurisdiction over suits in which Fannie Mae was a party. The majority opined the 1974 amendment reference to "jurisdiction" is almost certainly a reference to personal jurisdiction, and reasoned that legislative history was consistent with Congress' intent to move its principle place of business to the suburbs without effecting any change to the place where it would be subject to general jurisdiction. The majority further reasoned that, unlike other statutes that expressly refer to the corporation as a "citizen" so as to authorize diversity jurisdiction, Fannie Mae's 1974 amendment does not use the word "citizen" and provides only that Fannie Mae is a "District of Columbia corporation."

Based on the above discussion, the Ninth Circuit panel concluded that the sue-and-be-sued clause in Fannie Mae's federal charter conferred federal question jurisdiction over suits in which Fannie Mae is a party and that the district court had subject matter jurisdiction over plaintiffs' claims. The Court thus affirmed the district court's dismissal of plaintiffs' claims against Fannie Mae.

Dissent: District Judge Stein dissented from the majority opinion and opined that the phrase "of competent jurisdiction" does not confer automatic federal subject matter jurisdiction over any action to which Fannie Mae is a party and, thus, jurisdiction must arise from some other source.

First, the dissent looked to the plain language of Fannie Mae's sue-and-be-sued clause and argued that Red Cross did not announce a new rule of law but, rather, simply restated the rule established in Osborn and Deveaux to assist Congress and courts in writing and interpreting sue-and-be-sued clauses.

The dissent did not agree with the majority's alternative readings of the "of competent jurisdiction" provision. With respect to Congress' drive to modernize the U.S. Code, the dissent argued that Congress simply deleted references to courts of law and equity and did not replace phrases with new references to "courts of competent jurisdiction." With respect to state and federal courts of specialized jurisdictions not being required to hear cases involving Fannie Mae, the dissent argued that this is an unduly narrow reading of the clause.

The dissent then argued that the majority's reading of the proviso would render it entirely superfluous and that the historical backdrop for the majority's interpretation of the clause was irrelevant to the issue presented. In sum, the dissent argued that the only natural reading of the phrase requires the Court to look for a source outside of Fannie Mae's sue-and-be-sued clause for federal subject matter jurisdiction.

Second, the dissent looked to the history of Congress' amendments to reinforce its conclusion that the clause does not confer federal subject matter jurisdiction. The dissent emphasized that, when Congress acts to amend a statute, courts presume it intends its amendment to have real and substantial effect. The dissent reasoned that the 1954 amendment to Fannie Mae's sue-and-be-sued clause was part and parcel of Congress' overall intention to eventually take the federal government out of the secondary mortgage market, and that Congress elected the default option for federally chartered corporations, i.e., no automatic access to the federal courts unless the government owns more than half of the corporation's capital stock.

Lastly, the dissent opined that, by the adding the word "jurisdiction" in the 1974 amendment, Congress intended to allow Fannie Mae to access the federal courts via diversity jurisdiction, reasoning that if Fannie Mae's sue-and-be-sued clause conferred subject matter jurisdiction, then Congress amended the company's charter in 1974 for no reason whatsoever.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/10/02/10-56068.pdf

Panel: Stephen S. Trott and William A. Fletcher, Circuit Judges, and Sidney H. Stein, District Judge

Date of Issued Opinion: October 2, 2014

Docket Number: 10-56068

Decided: Affirmed

Case Alert Author: Beverly E. Bashor

Counsel: Thomas Ogden (argued), Law Offices of Thomas Ogden, Alhambra, California; Crystal Monique Lightfoot, West Hills, California, for Plaintiffs-Appellants; Jonathan Hacker (argued), O'Melveny & Myers LLP, Washington, D.C., Jan T. Chilton, Severson & Werson, San Francisco, California, for Defendants-Appellees.

Author of Opinion: W. Fletcher, Circuit Judge

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/31/2014 06:21 PM     9th Circuit     Comments (0)  

October 30, 2014
  Regis v. Holder -- Fourth Circuit
Headline: Chevron Doctrine Puts Limits on "Minors" Seeking Permanent Resident Status

Area of Law: Immigration; Administrative Law

Issue Presented: Whether a K-2 visa holder's eligibility for permanent resident status is determined by the date of entry into the United States or instead by the date on which the K-2 visa application is filed.

Brief Summary: Noel Joseph Menor Regis, a native of the Philippines, was approved to enter the United States on a K-2 visa with his mother (as a minor child who was unmarried and under the age of twenty-one). However, Regis did not actually enter the U.S. until a few weeks after his mother married a U.S. citizen. At the time he entered, Regis was twenty-one years old. Upon entry, Regis applied to become a permanent resident, but the United States Citizenship and Immigration Services denied his application because under the Immigration Nationality Act ("INA"), he was not a minor child when he entered at the age of twenty-one. The Board of Immigration Appeals ("BIA") affirmed the decision, and Regis appealed. Regis argued that he was eligible for permanent resident status because the INA is ambiguous as to when during the immigration process a K-2 visa holder must be a minor child. Because he was younger than twenty-one years old when he applied for and received his K-2 visa, Regis argued he was eligible for relief.

After a Chevron analysis, the U.S. Court of Appeals for the Fourth Circuit deferred to the BIA and concluded that a K-2 visa holder's permanent resident status is determined by the date of entry because a visa can be extinguished at any time prior to admission into the U.S.

In a case decided the same week as this one, Mohamed v. Holder, the Fourth Circuit did not afford the same deference to the agency and reversed the BIA's ruling.

To read the full opinion, please click here.

Panel: Judges Duncan, Agee, and Diaz

Argument Date: 09/16/2014

Date of Issued Opinion: 10/16/2014

Docket Number: No. 13-1988

Decided: Petition Denied

Case Alert Author: Jamie Lee

Counsel: Alfred Castro Tecson, TECSON LAW OFFICE, Annandale, Virginia, for Petitioner. Colin James Tucker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney General, Civil Division, Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2014 03:23 PM     4th Circuit     Comments (0)  

  Chevron Corp. v. Page -- Fourth Circuit
Headline: Lawyers Accused of Extortion Scheme Must Hand Over Documents to Chevron

Area of Law: Discovery, Privilege, Comity Doctrine

Issue Presented: Whether decisions on applications for discovery filed under 28 U.S.C. § 1782 are immediately appealable.

Brief Summary: In 2011, Ecuadorian plaintiffs obtained a multi-billion dollar judgment against Chevron in an Ecuadorian court. The plaintiffs' claim was that Chevron caused damage to the environment during oil drilling operations in Ecuador. Chevron alleged that the court proceedings were fraudulent. Specifically, Chevron alleged that Steven Donziger, the plaintiff's lead attorney, bribed and ghost wrote the judge's opinion. To help establish its fraud claim, Chevron sought discovery in the United States under 28 U.S.C. § 1782, which authorizes federal district courts to order persons to give testimony or produce documents to use in a foreign proceeding. The Second Circuit held that Donziger made an unsubstantiated privilege claim, and ordered him to produce the documents Chevron subpoenaed.

In conjunction with the Donziger discovery request, Chevron also issued subpoenas to Aaron and Daria Page, lawyers in Maryland who allegedly helped to ghost write the Ecuadorian judgment against Chevron. When the Pages provided inadequate responses, Chevron asked the District Court of Maryland to compel discover.

For the first time, the U.S. Court of Appeals for the Fourth Circuit ruled that decisions on applications for discovery filed under 28 U.S.C. § 1782 are immediately appealable. The Fourth Circuit found the Pages' claim of privilege failed on the merits. Further, the court found that the doctrine of comity required the court to apply the Second Circuit's decision ordering discovery to the current action in Maryland. Under the doctrine of comity, federal courts are not allowed to "step on each other's toes" and make rulings that would impact ongoing litigation of the matter in a different federal court. The Fourth Circuit affirmed the district court's order requiring the Pages to produce the requested documents.

To read the full opinion, please click here.

Panel: Judge Niemeyer, King, and Agee

Argument Date: 03/18/2014

Date of Issued Opinion: 09/24/2014

Docket Number: Case No. 13-1382

Decided: No. 13-1382 Dismissed; 13-2028 affirmed by published opinion

Case Alert Author: Michele Hayes

Counsel: ARGUED: James Edward Tyrrell, Jr., PATTON BOGGS LLP, Newark, New Jersey, for Appellants. Thomas Henderson Dupree, Jr., GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellee. ON BRIEF: Christopher J. Gowen, THE GOWEN GROUP LAW OFFICE, PLLC, Washington, D.C., for Appellants Aaron Marr Page and Daria Fisher Page. Richard D. Carter, CARTER & COLEMAN, PLC, Alexandria, Virginia, for Appellants Hugo Gerardo Camacho Naranjo, Javier Piaguaje Payaguaje, Aaron Marr Page, Daria Fisher Page, and Parties-in-Interest - Appellants Ecuadorian Plaintiffs. Peter E. Seley, Claudia M. Barrett, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellee.

Author of Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2014 02:47 PM     4th Circuit     Comments (0)  

  Colony Insurance Co. v. Petersen, et al. -- Fourth Circuit
Headline: Waiver and Estoppel Cause Insurance Company's Material Misrepresentation Claim to Go Up in Smoke

Area of Law: Insurance, Contracts

Issue Presented: Whether, under North Carolina law, waiver and estoppel issues were properly before a jury when the defendants made material misrepresentations to the insurance company on their application for insurance, the company was aware of the misrepresentations, and the company nevertheless granted insurance.

Brief Summary: On May 6, 2010, Colony Insurance Company insured the defendants' headquarters (the 501 building) against loss due to fire damage. The policy included a fire protection safeguard clause requiring the defendants to, among other things, maintain "functioning utilities at the 501 building." The clause explained that Colony would not pay for fire damage if, prior to a fire, the defendants "failed to maintain any protective safeguard" or failed to notify Colony of any failure in a protective safeguard. Colony hired a third party to inspect the 501 building for any issues "related only to insurability" of the premises. Colony received a written inspection report on April 13, 2010 noting that there was no heat at the 501 building, which conflicted with information on Petersen's insurance application stating that heat would remain continuously powered. However, Colony never notified the defendants of any problems that needed to be remedied. On May 18, 2010, the building suffered fire damage. Colony denied coverage after reviewing the inspection report in July.

Colony sought a declaratory judgment regarding its indemnity obligations under the policy. Colony moved for summary judgment, arguing the insured's material misrepresentations on their application rendered the policy void, and the breach of fire protective safeguards endorsement precluded coverage. The case proceeded to trial and a jury found that although a material misrepresentation as to the functioning utilities appeared on the insurance application, and that a condition of fire protective safeguards endorsement requiring functioning utilities to remain on had been breached, Colony waived its right to rescind the policy and was estopped from denying coverage. Following the jury's verdict the district court denied Colony's motion for judgment as a matter of law and entered final judgment against Colony.

On appeal, Colony argued that the district court erred in denying Colony's motion for judgment as a matter of law. The United States Court of Appeals for the Fourth Circuit affirmed. Applying North Carolina law, the Fourth Circuit held that a reasonable jury could have found that Colony waived its fire safeguard provision, or that Colony was estopped from enforcing the conditions of the agreement because it never notified the defendants that they were not in compliance with the policy. Additionally, the court found that while a material misrepresentation on an insurance application may forfeit coverage, waiver and estoppel may overcome a material misrepresentation claim, and such a question is for a jury to resolve.

To read the full opinion please click here.

Panel: Judges King, Wynn, and Floyd.

Argument Date: 05/15/2014

Date of Issued Opinion: 08/25/2014

Docket Number: No. 13-1033

Decided: Affirmed

Case Alert Author: Roy Lyford-Pike

Counsel: Reid C. Adams, Jr., WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Winston-Salem, North Carolina, for Appellant. Patrick Michael Kane, SMITH MOORE LEATHERWOOD LLP, Greensboro, North Carolina; James W. Bryan, NEXSEN PRUET, PLLC, Greensboro, North Carolina; Stephen G. Teague, TEAGUE, ROTENSTREICH, STANALAND, FOX & HOLT, PLLC, Greensboro, North Carolina, for Appellees. ON BRIEF: LT, PLLC, Greensboro, North Carolina, for Appellees. ON BRIEF: James R. Morgan, Jr., Jonathan R. Reich, WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Winston-Salem, North Carolina, for Appellant. M. Jay Devaney, NEXSEN PRUET, PLLC, Greensboro, North Carolina, for Appellee Randolph Bank and Trust Company. Manning A. Connors, SMITH MOORE LEATHERWOOD LLP, Greensboro, North Carolina, for Appellees Evergreen Composite Technology, LLC and Charles A. Peterson. Lyn K. Broom, TEAGUE, ROTENSTREICH, STANALAND, FOX & HOLT, PLLC, Greensboro, North Carolina, for Appellees Edward L. Clayton, Jr. and HPB Insurance Group, Incorporated.

Author: Judge Wynn

Case Alert Circuit Supervisor: Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 10/30/2014 10:59 AM     4th Circuit     Comments (0)  

October 29, 2014
  United States v. Baker- Tenth Circuit
Case Name: U.S. v. Baker - Tenth Circuit

Headline: Tenth Circuit Construes Rule 35(b) Narrowly; Denies Government's Motion to Reduce Defendant's Sentence as Out of Time

Area of Law: Criminal Procedure

Issue Presented: Does a district court have jurisdiction to grant a reduction in a defendant's previously imposed sentence under Fed. R. Crim. P. 35(b) for providing substantial assistance to the Government in the prosecution of another individual when the information provided to the government was useful both before and after the one-year anniversary of his sentencing?

Brief Summary:

Rule 35(b) authorizes the district court, upon the Government's motion, to reduce a previously imposed sentence if the defendant, after sentencing, provided substantial assistance to the Government in investigating or prosecuting another person. Generally, the Government must file a motion for a sentence reduction within the year following sentencing, but Rule 35(b)(2)(B ) permits the Government to file a motion more than one year after the sentencing if the information provided by the defendant did not become useful to the government until more than one year after sentencing In this case, the government conceded that the defendant's information was useful both before and after the one-year mark. As a result, the Tenth Circuit held that the plain language of Rule 35(b) precluded the district court from reducing the defendant's sentence since the government filed the motion more than one year after the defendant's sentencing.

Extended Summary:

Defendant Baker was indicted on eighty offenses arising out of a fraudulent investment scheme. Baker pled guilty to two of the offenses and was sentenced to the bottom range of the sentencing guidelines, to forty-one months in prison. After sentencing, Baker provided information about his co-defendant Akins' role in the fraud and offered to testify against Akins. As a result of his cooperation, the Assistant United States Attorney told Baker that he would recommend a reduction in sentence.

Akins pled guilty to two of the charged offenses and was sentenced to 27 months. The plea and sentencing happened within one year of Baker's sentencing, and during this time Baker twice requested that the government file the Rule 35(b) motion to have his sentence reduced. The government delayed filing the motion in case it needed Baker to testify at a restitution hearing, and the one-year time period lapsed before the restitution hearing took place. The government did not file the Rule 35(b) motion until January 28, 2013 - over fifteen months after Baker's sentencing.

The district court held that it had limited jurisdiction because the motion was filed more than a year after the sentencing. The government then filed the motion under Rule 35(b)(2)(B), giving the court jurisdiction to reduce a defendant's sentence if the information provided within one year of sentencing did not become useful to the government until more than one year after sentencing. The district court ruled that it did not have jurisdiction because the government conceded that the information was useful both before and after the one year. The court reviewed the district court's determination on jurisdiction de novo.

The court noted that a district court's ability to modify a sentence is limited, and it may only do so when expressly authorized by Congress. The ability to modify sentences is granted in 18 U.S.C. § 3582(c). That section refers the reader to Rule 35 of the Federal Rules of Criminal Procedure for the rule on when a district court may modify a sentence.

Rule 35(b)(1) requires the government file its motion to reduce a sentence within one year of the defendant's sentencing. Rule 35(b)(2) extends that time period in some circumstances, including when information provided during the year after sentencing does not become useful until more than a year after sentencing. The court held that the language of Rule 35(b)(2)(B) did not include times when information is valuable to the government both before and after the one-year mark.

The court noted that the purpose of Rule 35 is to promote finality and encourage defendants to quickly disclose information to the government. The limited circumstances in 35(b)(2) that extend past the one-year deadline are reserved from times when the defendant does not know the information within one year, or could not reasonably have known that the information would be useful to the government, or the information itself was not useful until more than a year after sentencing. Under the circumstances in Baker's case, the court concluded that the district court did not have jurisdiction to reduce the sentence. The parties argued that the full extent of Baker's assistance was unknown until more than one year after the sentencing, but the court concluded that Congress intended the word "until" to mean specifically that the information could not become useful before the one-year mark.

The government conceded that it could have filed the 35(b) motion to preserve the court's jurisdiction over the matter and then ask the court to wait to make a ruling until after the restitution hearing. Further, the government conceded that it did not realize the need to do so until it was too late.

The court then addressed the defendant's reliance on United States v. Morales, 52 F.3d 7 (1st Cir. 1995). In Morales, the First Circuit interpreted an earlier version of Rule 35, construing it broadly. The First Circuit stated that a defendant cannot be said to know useful information until she knows the value of that information, or is specifically asked. The court noted that other circuits have declined to follow this reasoning, and that in the present case, it would decline to do so as well. The court stated that it did not have the authority to interpret Rule 35(b) in any way that is not the clear and explicit language stated in the rule.

The court affirmed the district court's decision, noting that the requirements of Rule 35(b) are jurisdictional. It sympathized with Baker's plight, noting that it was unfortunate for Baker that the government did not file the motion in a timely manner. Finally, it noted that the government only sought a six-month reduction of his forty-one month sentence.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-1042.pdf

Panel: Kelly, Ebel, and Phillips

Date of Issued Opinion: October 28, 2014

Docket Number: No. 13-1042

Decided: Decision of the district court was affirmed

Counsel: Warren R. Williamson, Federal Public Defender and Jill M. Wichlens, Assistant Federal Public Defender, Denver Colorado, for Defendant-Appellant Frederick H.K. Baker.

John F. Walsh, United States Attorney and Robert Mark Russel, Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee United States of America.

Author: Ebel

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 10/29/2014 05:14 PM     10th Circuit     Comments (0)  

  United States v. McCabe -- Fourth Circuit
Headline: Plead the Deaths Away: Meth Maker Not Responsible for Funeral Costs

Area of Law: Sentencing

Issue Presented: Whether a defendant can be ordered to pay half of the funeral costs for a death that the government did not prove the defendant caused.

Brief Summary: Gerald McCabe manufactured methamphetamine in his apartment. An explosion and fire at the apartment caused the death of three people, including his neighbor Joseph Raeth. Following the explosion, McCabe pled guilty to conspiring to manufacture fifty or more grams of methamphetamine and to manufacturing methamphetamine where a minor was present. As part of his sentence, McCabe was ordered to pay half of Raeth's funeral costs. McCabe appealed.

McCabe argued, among other things, that the district court erred in ordering him to pay the funeral costs. The United States Court of Appeals for the Fourth Circuit held that since the prosecution failed to show at sentencing by a preponderance of the evidence that McCabe's drug conspiracy caused the fire that killed Raeth, Raeth was not a victim of the offense of conviction. As such, the Fourth Circuit found that the district court had erred in ordering McCabe to pay for half of Raeth's funeral costs and vacated that part of the order.
To read the full opinion, please click here.

Panel: Judges Gregory, Agee, and Thacker

Date of Issued Opinion: 09/11/2014

Docket Number: No. 13-4730

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

Case Alert Author: Casandra Mejias

Counsel: William L. Runyon, Jr., WILLIAM L. RUNYON, JR. LAW OFFICE, Charleston, South Carolina, for Appellant. William Nettles, United States Attorney, Peter T. Phillips, Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 10/29/2014 at 02:23 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/29/2014 02:14 PM     4th Circuit     Comments (0)  

  United States v. Young -- Sixth Circuit
Headline: Sixth Circuit upholds the 15-year mandatory minimum sentence of a man charged with possession of seven shotgun shells in violation of the Armed Career Criminal Act.

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

Issues Presented: (1) Did the mandatory minimum sentence of 15 years for the possession of seven shotgun shells violate the proportionality principle of the Eighth Amendment? (2) Did the lower court's failure to notify the defendant of his legal impediment violate the defendant's right to due process under the Fifth Amendment?

Brief Summary: The defendant, a convicted felon, received a 15-year prison sentence under the Armed Career Criminal Act for the possession of seven shotgun shells. He appealed, arguing that this sentence violated the Eighth Amendment's ban on cruel and unusual punishment and that the lower court had also violated his due-process rights by failing to notify him of his legal impediment. The Sixth Circuit disagreed and affirmed the sentence, noting that the defendant's past criminal record was an important factor.

Extended Summary: Edward Young came into possession of seven shotgun shells while helping a widowed neighbor sell off her late husband's belongings. The record showed that there was no "risk of harm or violence" from his mere possession of the shells because he did not possess a compatible gun; there was no evidence that he used the shells in a crime or intended to use them in a future crime; and there was no evidence that he planned to give them to someone else who would use them in a crime. The court further found that Young's innocent acquisition of the shotgun shells was of "the lowest level of culpability that could have rendered him guilty." Nevertheless, the lower court imposed a 15-year mandatory minimum sentence for this possession crime under the Armed Career Criminal Act (ACCA).

Young appealed his sentence, first arguing that the sentence violated the Eighth Amendment's ban on cruel and unusual punishment because it was grossly disproportionate to the offense he committed. Second, he argued that the lower court's failure to notify him of his legal impediment in the lower court's sentencing colloquy and other sentencing-related documents violated his right to due process under the Fifth Amendment.

The Sixth Circuit affirmed. In rejecting Young's Eighth Amendment argument, the court relied on the Supreme Court's three "objective criteria" for assessing proportionality: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed on others in the same jurisdiction; and (3) the sentences imposed for the same offense in other jurisdictions. The court noted that the gravity-versus-harshness test typically answers the question without a need for further inquiry. Unless a court finds that there is a gross disproportionality between the gravity of the crime and the harshness of the penalty, there is no need to look at other sentences for similar crimes.

The court acknowledged that a 15-year sentence for the possession of seven shotgun shells was "harsh and severe," but it noted that "[f]or recidivist offenders, the line is different." Gross disproportionality is rarely met and is especially hard to meet in non-capital-punishment cases, the court observed. But the court relied heavily on Young's recidivism, describing his prior burglaries as his "Achilles heel." His prior offenses included four counts of burglary and seven counts of aggravated burglary. These past crimes involved theft of weapons and ammunition, and also qualified as violent felonies under the ACCA. The court also found it relevant that, while no burglary charges were made in the present case, the ammunition was found during a search for stolen tools, and several other stolen items were found in Young's house during that investigation.

As to Young's Fifth Amendment due-process argument, the Sixth Circuit noted that "unless the statute is so vague, technical, or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct, [the court applies] the centuries-old maxim that ignorance of the law is no excuse." The language in § 922(g) of the ACCA plainly states that it is "unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess . . . ammunition." Therefore, even though the lower court didn't specifically inform Young of his legal disabilities, he was put on notice by the statute itself.

Concurrence: Judge Stranch wrote a concurrence suggesting possible changes to the ACCA, such as allowing for safety valves or graduated sentences based on the kind of weapon or ammunition possessed, the indicia of risk, or how remote the prior crimes. He added that district-court judges are in a much better position than Congress to decide what risk a defendant poses to society and should therefore have discretion in sentencing. Finally, Judge Stranch stated that although he believes that "mandatory minimum laws are ineffective in achieving their purpose and damaging to our federal criminal justice system and our nation," he was bound by precedent to uphold the sentence.

Panel: Judge Griffin, White, and Stranch

Date of Issued Opinion: September 11, 2014

Docket Number: 13-5714

Counsel: ARGUED: Douglas A. Berman, THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW, Columbus, Ohio, for Amicus Curiae. Christopher T. Varner, EVANS HARRISON HACKETT PLLC, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee. ON BRIEF: Christopher T. Varner, EVANS HARRISON HACKETT PLLC, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee. Douglas A. Berman, THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW, Columbus, Ohio, Candace C. Crouse, PINALES STACHLER YOUNG BURRELL & CROUSE CO., L.P.A., Cincinnati, Ohio for Amicus Curiae.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0234p-06.pdf

Case Alert Author: Jerrod Simpson

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor: Professor Mark Cooney

Edited: 10/29/2014 at 12:27 PM by Mark Cooney

    Posted By: Mark Cooney @ 10/29/2014 12:15 PM     6th Circuit     Comments (0)  

October 27, 2014
  John Thorpe v. Borough of Jim Thorpe - Third Circuit
Headline: Third Circuit Rules that Jim Thorpe's Body Will Stay in Jim Thorpe

Area of Law: Trusts & Estates, Administrative Law

Issues Presented: Does the NAGPRA allow Jim Thorpe's descendants to remove his remains from their current resting place in Jim Thorpe, Pennsylvania to Sac and Fox tribal land in Oklahoma?

Brief Summary: John Thorpe, the son of the legendary American athlete Jim Thorpe, sued the Borough of Jim Thorpe in Pennsylvania for failing to comply with the Native American Grave Protection and Repatriations Act ("NAGPRA"). According to NAGPRA, museums and federal agencies in possession of Native American remains and funerary artifacts must notify the affected tribe, and any known lineal descendant may request the return of the remains or artifacts. The District Court determined that the Borough of Jim Thorpe qualified as a museum under NAGPRA and the remains of Jim Thorpe must be disinterred and returned to his son for burial on Sac and Fox lands. The Third Circuit Court of Appeals, however, held that the Borough should not be considered a museum under NAGPRA, reasoning that although the Borough receives federal money, it was not Congress's intent to extend the meaning of museum beyond the plain meaning of the word. The Circuit Court reversed the previous decision, thereby allowing Jim Thorpe's body to remain in the borough named for him.

Extended Summary: Jim Thorpe was an American athlete, considered by some to be the greatest of all time. He was also a Native American of the Sac and Fox tribe in Oklahoma. Despite his fame in his younger days, he died in poverty and, most importantly for this case, without a will. It was left to his widow, Patsy Thorpe, to determine what should be done with his remains. Although Jim Thorpe himself had expressed a desire to be buried in Oklahoma and some plans were made to do just that, Patsy Thorpe ultimately decided that two small municipalities in Pennsylvania should become his final resting place. As a tribute to her husband, these two communities then combined to become one, using the name of the Borough of Jim Thorpe. Patsy's decision was in direct opposition to the wishes of some of his children from previous marriages. She has since died.

The appellees do not dispute that Patsy Thorpe had the legal authority to decide where to bury Jim Thorpe. However, the appellees filed a complaint in 2010 alleging that the Borough of Jim Thorpe was in violation of the Native American Grave Protection and Repatriations Act ("NAGPRA") and that the body should be disinterred and returned to Oklahoma for burial on Sac and Fox grounds. The District Court ruled in favor of the appellees, reasoning that the Borough of Jim Thorpe fell under the definition of "museum" in NAGPRA because the town receives federal money and is therefore subject to repatriation request.

On appeal, the Third Circuit looked closely at the wording of the statute and legislative history to determine whether the Borough could be considered a museum under NAGPRA. This law was originally made necessary by the rampant looting of Native American burial sites in previous decades, which led to museums having large collections of funerary objects and remains in their collections. Congress understood the need for a repatriation process to begin in order to restore the objects and remains to the tribes to which they rightfully belonged. NAGPRA was modeled on the National Museum of the American Indian Act, which authorized repatriation of funerary objects and remains from the Smithsonian collection back to their respective tribes. NAGPRA extended the Act to include all "Federal agencies and museums receiving Federal funds."

NAGPRA has a broad definition of museum, which includes "any institution or State or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American cultural items." While the Borough of Jim Thorpe does have control over Jim Thorpe's remains and it does receive federal funds, the Circuit Court was unwilling to extend the definition of museum to the Borough. The Court looked at the plain meaning of the text and reasoned that the Court should use the ordinary meaning of the word "museum" and not interpret it so as to lead to absurd results. The Court found that such an approach was also in accord with the intent of Congress. Finally, the Court determined that if the definition of "museum" were expanded in the manner favored by plaintiffs, it would allow any Native American to disinter remains of his or her tribe members and remove them to tribal lands despite the wishes of the deceased. The Court did not believe that Congress intended this to happen, although it would be an inevitable consequence if the District Court's interpretation were allowed to stand. Accordingly, the Third Circuit reversed the judgment of the District Court and remanded the case for entry of judgment in favor of the Borough of Jim Thorpe.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/132446p.pdf

Panel (if known): McKee, Chief Judge and Chagares and Schwartz, Circuit Judges

Argument Date: February 14, 2014

Date of Issued Opinion: October 23, 2014

Docket Number: No. 13-2446

Decided: Reversed and remanded

Case Alert Author: Shanna Lafferty

Counsel: William J. Schwab, Esq., Vincent R. Garvey, Esq., Counsel for Appellants; Christopher G. Fusco, Attorney for Cross-Appellees; Charles L. Riddle, Esq., Stephen R. Ward, Esq., Daniel E. Gomez, Esq., Attorneys for Appellees; Daniel H. Wheeler, Esq., Attorney for Amicus Curiae Michael Koehler and John Thorpe; Michael Campbell, Esq., Attorney for Amicus Curia The National Congress of the American Indians

Author of Opinion: Judge McKee

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 10/27/2014 10:52 AM     3rd Circuit     Comments (0)  

October 26, 2014
  Citizen Center v. Gessler- Tenth Circuit
Headline: Tenth Circuit holds that non-profit organization may bring suit against Colorado Secretary of State for violation of members' constitutional rights arising from use of traceable ballots

Areas of Law: Constitutional Law

Issues Presented:

1. Should Citizen Center's claims that traceable ballots violated members' constitutional rights be dismissed for mootness after the voting procedures in Colorado were changed?
2. Should Citizen Center's claims that traceable ballots violated members' constitutional rights be dismissed for lack of standing?
3. Did Citizen Center sufficiently state a claim against the clerks when they failed to allege that the clerks discriminated against voters because voting procedures varied by county?

Brief Summary:

Colorado non-profit Citizen Center brought suit against the Secretary of State and clerks from five Colorado counties, alleging that the use of traceable ballots violated their rights to voting, free speech and association, substantive due process, procedural due process and equal protection. After addressing the mootness and standing challenges raised by the defendants, the court held that the first amended complaint failed to state a valid claim against the clerks, but that a valid claim remained against the Secretary of State for federal equal protection and procedural due process claims.

Extended Summary:

Election officials in six Colorado counties had the ability to potentially learn how individuals voted because ballots were traceable in May, 2012. Colorado non-profit organization Citizen Center sued the Secretary of State and the clerks from five of the six counties, stating that the use of traceable ballots violated the constitutional rights of members. Citizen Center alleged that the ballots violated members' constitutional rights involving voting, free speech and association, substantive due process, equal protection and procedural due process. Citizen Center also alleged violations of the Colorado Constitution.

Defendants moved to dismiss for lack of standing, and alternatively, for failure to state a claim. The district court dismissed the complaint on standing grounds, and Citizen Center appealed. On appeal, three issues were considered: (1) mootness, (2) standing, and (3) sufficiency of the allegations against the clerks under Federal Rule of Civil Procedure 12(b)(6). The majority ruled that (1) the claims were partially moot due to new regulations banning some of the challenged regulations; (2) Citizen Center had standing on the equal protection and procedural due process claims, but that the injury is too speculative for standing on the other claims; and (3) The first amended complaint failed to state a valid claim against the clerks for denial of equal protection or procedural due process. Thus, the only claim that remained was the claim against the Secretary of State for denial of equal protection and procedural due process.

The ballots at issue had unique barcodes, and some of them may be unique among those cast on an electronic voting machine, and some were unique within a batch of ballots. Unique barcodes were used in three of the counties and could identify the ballot as belonging to a specific voter. For those that were unique among those cast on an electronic-voting machine, officials could record the date of voting, the machine's identifier, and the precinct number or type of ballot used by the voter. If compared with other data, election officials could trace a ballot when it was unique among the ballots cast on a specific voting machine. These ballots were used in all six counties. Finally, for the ballots that could be unique within a single batch, a batch sheet listing names, voter identification numbers, precinct numbers, ballot styles and other information were included. Due to the small size of the batches, some of the ballots could have been unique, and election officials may have been able to trace a ballot by comparing it to information on the batch sheet on some occasions. Four of the counties used this method.

Citizen Center alleged that the ballots' traceability subjected members to fear that they might be identified by government officials and thus limited their ability to freely exercise their fundamental right to vote. Further, Citizen Center alleged that the election procedures "substantially burden, infringe and chill" the members' constitutional rights to vote, engage in free speech and association, enjoy substantive and procedural due process and equal protection.

Colorado election officials are banned from disclosing how any elector voted, and all mail ballots have secrecy envelopes to prevent officials from learning how a citizen voted. Citizen Center argued that the election officials in three counties traced the ballots or failed to safeguard the secrecy of the voters' ballots. In Mesa and Larimer Counties, the ballots of public officials were traced and publicized, and in Jefferson County, the electoral choices of 30 voters were published for 1.5 years.

The court noted that the Secretary of State changed its voting regulations, which now prohibit counties from printing ballots with unique numbers or barcodes; require counties that use rotating numbers to print at least ten ballots of each ballot style for each number; and direct county clerks to "dissociate any batch number that could trace a ballot back to the specific voter who cast it from the counted ballots not later than the final certification of the abstract of votes cast." Defendants argued that the action was moot because (1) only the 2012 procedures were challenged and that election had passed; (2) the Secretary of State adopted new regulations and; (3) the action was prudentially moot (the court explained that a case is prudentially moot if "circumstances [have] changes since the beginning of the litigation that forestall any occasion for meaningful relief." S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997)).

The court began by addressing the mootness issue over standing issues. It noted that a live controversy was required in order to establish federal jurisdiction. The court held that the passing of the 2012 election did not render Citizen Center's claim moot because it was not trying to enjoin the use of traceable ballots for just the 2012 election, but for all future elections as well.

The court stated that the new regulations moot only Citizen Center's challenges to the use of unique numbers and barcodes and the use of a unique ballot within a batch after final certification of a vote. The court noted that even if ten copies of every ballot style are used, some ballots may remain traceable because they could still be unique when cast on a voting machine or within a batch before final certification.

The court rejected Citizen Center's argument that the voluntary-cessation exception to the mootness doctrine should apply. The court explained that voluntary cessation rarely works because a party should not be allowed to temporarily change behavior in order to avoid judicial review. In the present case, however, the government has not openly expressed the intent to reenact the repealed regulation, and the clerks have not threatened to ignore the new regulations.

The court then stated that the doctrine of prudential mootness does not apply to the part of the case that otherwise survives. The regulatory changes did not completely eliminate the threat of traceable ballots when voters use unique numbers or barcodes and they are unique in a batch prior to certification. Thus, because a judgment for Citizen Center could give meaningful relief, the prudential mootness doctrine did not apply.

The majority then addressed the issue of standing, reviewing the district court's decision de novo. In order to have constitutional standing there must be (1) injury in fact; (2) causation; and (3) redressability. Citizen Center's members must have standing to sue in their own right for Citizen Center to be able to pursue its claims.

The Secretary of State argued that Citizen Center failed to proffer any members who were harmed, but the court stated that it would conclude that Citizen Center satisfied its burden of identifying members who were harmed by providing affidavits from eleven individuals who were harmed by the traceable ballots.

The court then addressed injury in fact, rejecting the district court's rationale that there was no injury in fact because absolute anonymity is not a "legally protected federal interest." The court noted that for standing purposes, it must assume that each claim is legally valid and must not address the merits of the claim with standing. The plaintiffs must, however, have a legal right to do what they claim is being infringed. The court addressed Citizen Center's theories of injury and determined that they did not support standing.

First, the risk that election officials could determine how a member voted did not constitute an injury in fact because the risk was speculative. The majority noted that safeguards in the Colorado Constitution prevented this from happening and noted that Citizen Center did not allege that its members were among those whose ballots were actually traced and did not allege that election officials were likely to trace members' ballots. The court stated that the two cases relied upon by Citizen Center, Gredinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), and Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), were distinguishable. Greidinger was distinguishable because the plaintiff in that case was denied the right to vote, whereas in the present case, the argument was that the use of traceable ballots discouraged voting. Stewart was distinguishable because in that case, it was inevitable that mistakes in voting would be made, whereas here, Citizen Center cannot say that the votes of members would inevitably be traced.

The court also rejected Citizen Center's argument that injury in fact arises from the chilling effect that the traceable ballots may have on its members. The court noted that the Supreme Court has held that a chilling effect does not create an injury in fact, citing Laird v. Tatum, 408 U.S. 1, 13-14 (1972). It also cited Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc), in which the court required the plaintiffs to present evidence that they actually intended to refrain from the activity in question. In the present case, Citizen Center has not provided evidence that members intend to refrain from voting because their ballots might be traced. In fact, members stated that they do intend to continue voting in spite of this possibility. The court held that the chill was too speculative to constitute an injury in fact.

With respect to the equal protection claims, the court held that Citizen Center sufficiently pled an injury in fact that there was an unequal imposition of the risk that a traceable ballot could reveal how a member voted, based on where the voter lives. The court referred to American Civil Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313 (10th Cir. 2008), where the court held that in-person voters could challenge the requirement that in person voters had to present a photo identification to vote, but absentee voters did not. Citizen Center alleged an injury in fact based on the difference in treatment similar to the in person voters in Santillanes.

The majority concluded that the procedural due process claims sufficiently alleged an additional injury in fact that there were inadequate safeguards protecting the member's interest in the secrecy of the ballot guaranteed by the Colorado Constitution. The court stated that Citizen Center sufficiently alleged causation and redressability.

The clerks argued that Citizen Center could not show redressability on the procedural due process claim because it was asking for an injunction on practices that had been reformed, and had not shown that the clerks could satisfy their constitutional and statutory obligations without the practices at issue. The court rejected both of these arguments - the first for mootness and the second because Citizen Center alleges that another Colorado county uses untraceable ballots and is able to comply with the Colorado Constitution. The court concluded that the proposed injunction would redress the injury.

The court disagreed with the clerks' contention that they lacked the power to redress the injury alleged for the equal protection claim. The court stated that a judicial order enjoining the clerks from using traceable ballots would eliminate the alleged inequality, and, as such, the equal protection claims were redressable.

The court then rejected the Secretary of State's argument that it lacked the authority to remedy the issues raised. The court noted that Colorado law requires the Secretary of State's approval for ballot plans set forth by clerks. This approval makes the claims redressable against the Secretary of State.

The court rejected the clerks' argument that Citizen Center's request for secret ballots is too vague or generalized for constitutional standing. It first noted the inadequacy of the argument in the brief itself, and then noted that Citizen Center did identify the right being invoked, which made the claim specific enough for constitutional standing.

Next, the court addressed the clerks' motion to dismiss for failure to state a claim. With respect to the procedural due process claim the court found that the complaint was facially deficient because Citizen Center lacks a liberty interest in an untraceable ballot. Traceability alone is not a violation of the Colorado Constitution's guarantee of ballot secrecy, because Colorado courts have ruled that voter secrecy is preserved when officials do not actually learn how an individual voted. The court cited to Jones v. Samora, 318 P.3d 462 (Colo. 2014), where the Colorado Supreme Court held that election officials' use of traceable ballots did not violate the Colorado Constitution, because nobody actually took advantage of the opportunity to learn how an individual voted. There was no protected liberty interest alleged by Citizen Center, because the Colorado Constitution dd not protect against traceable ballots themselves. Without establishing a protected liberty interest, the procedural due process claims must fail.

The equal protection claims failed because Citizen Center did not allege that a county clerk discriminated between voters who resided in the same county, so there was no equal protection violation by any of the clerks. The court cited to Dunn v. Blumstein, 405 U.S. 330, 336 (1972), which stated that in the context of voting, citizens have a constitutional right to participate in elections on an equal basis with others in the same jurisdiction. In the present case, each voter in the same county was treated alike. Citizen Center's allegation that the equal protection right extends to voters in different counties went beyond the right set forth in Dunn. Further, there was no basis for holding the clerks responsible for inter-county differences. Each clerk only had power in his or her county and could not have violated the Equal Protection Clause by acting differently than a clerk in a different county.

The court concluded that Citizen Center did not have standing on its substantive due process claims and the rights to vote and to free speech, but that it did have standing on the federal claims against the Secretary of State and the clerks for denial of procedural due process and equal protection, as well as against the clerks for state claims involving denial of procedural due process and equal protection. It affirmed the dismissal of the claims involving denial of substantive due process, the right to vote, and the right to free speech. The court also agreed with the clerks' alternative argument for dismissal for failure to state a valid claim under Rule 12(b)(6). The claims against the Secretary of State, however, were valid because the Secretary of State did not move for dismissal under 12(b)(6). Thus, the court reversed and remanded on the dismissal of the federal claims against the Secretary of State for denial of procedural due process and equal protection.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/12/12-1414.pdf

Panel: Holmes, McKay, Bacharach

Date of Issued Opinion: October 21, 2014

Docket Number: No. 12-1414

Decided: Dismissal of the federal claims against the Secretary of State was reversed and remanded; all other claims were affirmed.

Counsel: Robert A. McGuire, III, McGuire Bains LLC, Lone Tree, CO (Jeffrey David Baines, McGuire Baines LLC, Denver, CO, on the briefs), for Plaintiff-Appellant.

David Hughes, Boulder County Attorney, Boulder CO, and LeeAnn Morrill, First Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, CO (Writer Mott and David Wunderlich, Assistant Jefferson County Attorneys, Golden, CO, David Ayraud and William G. Ressue, Larimer County Attorney's Office, Fort Collins, CO, Gillian Dale and Tom Lyons, Hall & Evans, Denver, CO, Bryan Treu, Eagle County Attorney, Eagle, CO and Jennifer Davis, Chaffee County Attorney, Salida, CO, and John W. Suthers, Attorney General, with them on the briefs) for Defendants-Appellees.

Author: Bacharach

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 10/26/2014 09:17 AM     10th Circuit     Comments (0)  

October 24, 2014
  Mastafa v. Chevron Corp.
Headline: Second Circuit Affirms the Dismissal of Five Iraqi Nationals' Claims Against Corporations for Illicitly Funding Saddam Hussein's Regime

Area of Law: International Law

Issue(s) Presented: Whether Iraqi nationals, tortured and abused during the Saddam Hussein regime, can recover damages from corporations who allegedly paid kickbacks to the regime.

Brief Summary:
Five Iraqi nationals filed a complaint against Chevron and Banque Nationale de Paris Paribas claiming that they or their relatives were tortured, imprisoned, and in some cases executed by agents of Saddam Hussein and that the defendant corporations had aided and abetted by paying Hussein's regime illegal kickbacks. The district court dismissed the complaint. The Second Circuit affirmed, holding that a recent Supreme Court decision forecloses recovery under the Torture Victim Protection Act because the Act imposes liability on individuals, not corporations. The Circuit also held it lacked jurisdiction on the Alien Tort Statute claim because the plaintiffs' complaint lacked a plausible allegation that the defendants had purposefully aided and abetted alleged violations of customary international law.

The full text of the opinion may be found at http://www.ca2.uscourts.gov/de...44726f2ed6e/1/hilite/

Extended Summary: Five Iraqi nationals brought suit against Chevron Corporation and Banque Nationale de Paris Paribas, claiming that they or their family members were tortured, imprisoned, and in some cases executed by agents of Saddam Hussein and that defendants were liable for illicitly funding the regime. Plaintiffs brought their claims under the Alien Tort Statute of 1789 (ATS) and the Torture Victim Protection Act of 1991 (TVPA). The district court dismissed the claims under Federal Rules of Civil Procedure 12(b)(1) and (6). Plaintiffs appealed and the Second Circuit stayed the appeal pending the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. During the stay, the Supreme Court issued another decision relevant to this case, Mohamad v. Palestinian Authority. After the Supreme Court issued the Kiobel decision, the Second Circuit lifted the stay and affirmed the dismissal of the case in full.

The Torture Victim Protection Act imposes liability on "[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation" subjects another individual to torture or extrajudicial killing. In Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012), the Supreme Court held that the TVPA "authorizes liability solely against natural persons," and "does not impose liability against organizations," including corporations. The parties agreed that this decision foreclosed plaintiffs' claims under the TVPA.

The Alien Tort Statute establishes district court jurisdiction "of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States". In Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), the Supreme Court held "the presumption against extraterritoriality applies to claims under the ATS . . . and case[s] seeking relief for violations of the law of nations occurring outside the United States [are] barred." The Second Circuit held that when faced with ATS claims, courts should focus on the particular conduct alleged in the complaint, and then follow a two-step jurisdictional analysis of that conduct. The first step is to determine whether the complained-of conduct - i.e., the "conduct which constitutes a violation of the law of nations or aiding and abetting such a violation" - sufficiently touches and concerns the United States so as to displace the presumption against extraterritoriality. The second step is to "glimps[e] at the merits" and determine whether the complaint plausibly alleges a violation under the ATS.

Applying this standard to the instant complaint, the Second Circuit concluded that it satisfied the first step because of its allegations about financial transactions that occurred in the United States. The complaint failed on the second step, however, because it failed to plausibly plead that the defendants had the mens rea required to establish a violation of the law of nations. The complaint lacked a plausible allegation that the defendants had acted with the purpose of facilitating human rights abuses.

Panel: Circuit Judges Cabranes, Straub, and Livingston

Argument Date: 05/28/2014

Date of Issued Opinion: 10/23/2014

Docket Number: No. 10‐5258‐cv

Decided: Affirmed

Case Alert Author: Joan O'Connor Archer

Counsel: John T. Murray, Murray & Murray Co., L.P.A., Sandusky, Ohio, for Plaintiffs‐Appellants.

Meir Feder, Thomas E. Lynch, Jones Day, New York, NY; Gregory G. Katsas, Michael A. Carvin, Jones Day, Washington, D.C., for Defendant‐ Appellee Chevron Corp.

Robert S. Bennett, Ellen Kennedy, Hogan Lovells US LLP, Washington, D.C.; Jennifer L. Spaziano, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C., for Defendant‐Appellee Banque Nationale de Paris Paribas.

Terrence Patrick Collingsworth, Conrad & Scherer, LLP, Washington, D.C., for amicus curiae Human Rights Watch and Labor Organizations.

Author of Opinion: Judge Cabranes

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/24/2014 11:01 AM     2nd Circuit     Comments (0)  

October 23, 2014
  Estate of Frank P. Lagano v. Bergen County Prosecutor's Office - Third Circuit
Headline: Third Circuit vacates district court's rulings that BCPO and its officers are not "persons" under civil rights statutes and remands to lower court for further findings.

Area of Law: Due Process and Civil Rights

Issues Presented: Whether the plaintiff stated a claim for relief by alleging that the State violated the decedent's due process and civil rights by allegedly disclosing his identity as a confidential informant and conducting a search and seizure of his home?

Brief Summary: The Third Circuit affirmed in part the district court's ruling granting the State's motion to dismiss but ultimately vacated many of the district court's findings and allowed the Plaintiff to file a second amended complaint. The Plaintiff, Estate of Lagano (Estate) alleges in its complaint that the Bergen County Prosecutor's Office (BCPO) and its Chief Detective, Michael Mordaga, unlawfully searched Lagano's house and seized items from it as well as put him in harm that led to his death by revealing that he was a confidential informant. The Third Circuit vacated the district court's rulings that the defendants cannot be sued under 42 U.S.C. §§ 1983 and 1985 and the New Jersey Civil Rights Act. Next, the Third Circuit found that the district court did not use the correct standards or case law to determine the claims of sovereign immunity and qualified immunity. Finally, the Third Circuit found the claim of unlawful search and seizure from 2005 to be barred by the statute of limitations.

Extended Summary: Frank Lagano was the subject of an organized crime investigation by the BCPO where Michael Mordaga was Chief of Detectives. On December 1, 2004, BCPO detectives executed a search warrant at Lagano's home and safe deposit boxes and seized cash and other items. He was charged with racketeering and other crimes. The Estate alleges that Lagano agreed to serve as a confidential informant for James Sweeney and that Mordaga and Lagano did not have a good relationship.

The Estate alleges that sometime later BCPO personnel disclosed to members of "traditional Organized Crime families" that Lagano had been an informant. On April 12, 2007, Lagano was shot and killed. The Estate asserts that Mordaga and BCPO are responsible for Lagano's death and that they conspired to illegally arrest and steal from Lagano. In 2010, James Sweeney, a Sergeant State Investigator filed a complaint alleging widespread corruption within the BCPO, including allegations related to Mordaga's relationship with Lagano and the circumstances surrounding Lagano's murder. On August 29, 2012, the Estate filed a complaint based primarily on Sweeney's complaint. The District Court dismissed all claims against all defendants, finding the State had Eleventh Amendment sovereign immunity because neither the BCPO nor Mordaga were "persons," Mordaga had qualified immunity as to two of the three counts, and the third count was time barred.

The Third Circuit first found that the district court erred when it found that the BCPO and Mordaga could not be sued under 42 U.S.C. §§ 1983 and 1985 because they are not "persons" under the statutes. First finding that "person" has the same meaning under both statutes §§ 1983 and 1985, the Third Circuit then found that the complaint did not merely allege that Mordaga and other BCPO officials were performing "classic functions of law enforcement." Rather, the district court erred by granting sovereign immunity because the complaint alleged a relationship beyond the defendants' official roles within the BCPO. The Third Circuit reasoned that Mordaga was amenable to suit because he was sued in his personal capacity. For the same reason, the Third Circuit vacated the ruling that the defendants cannot be sued under the New Jersey Civil Rights Act.

Next, The Third Circuit found that the district court erroneously used inapplicable case law to find that the BCPO had Eleventh Amendment sovereign immunity. The panel remanded the case on this issue so that the district court could apply the correct case law. Furthermore, the Third Circuit also found that the district court used an unduly narrow construction to define the rights of confidential informants. The Estate can allege a state-created danger theory despite the fact that there had been no previous reported cases extending it to confidential informants. Without reaching the merits, the Third Circuit found that the district court did not use the correct standard and vacated its decision finding in favor of Mordaga's qualified immunity.

Finally, the Third Circuit rejected the Estate's argument that the statute of limitations regarding the search and seizure should be determined from the Sweeney complaint in lieu of from the date of the search in 2005. Finding the record demonstrated that Lagano knew about the allegedly unlawful search and seizure when it occurred in 2005, the Third Circuit held that the search and seizure claim expired in 2007 and was time barred. The Third Circuit allowed the Estate to file a second amended complaint upon remand.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133232p.pdf

Panel (if known): Chagares, Greenaway, Jr. and Vanaskie, Circuit Judges

Argument Date: March 19, 2013

Date of Issued Opinion: October 15, 2014

Docket Number: No. 13-3232

Decided: Affirmed in part, vacated in part, remanded for further proceedings

Case Alert Author: Antoinette Snodgrass

Counsel: William H. Buckman, Esq., Edward M. Koch, Esq., and David M. Ragonese, Esq. for Plaintiff/Appellant Estate of Frank P. Lagano; John J Hoffman, Esq., Lisa A. Puglisi, Esq., Brian G. Flanagan, Esq., and Eric S. Pasternack, Esq. for Defendants/Appellees Office of Attorney General of New Jersey

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/23/2014 09:50 AM     3rd Circuit     Comments (0)  

October 15, 2014
  Veasey v. Perry - Fifth Circuit
Headline: Fifth Circuit Reinstates Texas Voter ID Law for Upcoming Election.

Area of Law: Election law.

Issue Presented: Whether, in light of the importance of maintaining the status quo on the eve of an election, the District Court's judgment holding the Texas voter identification law unconstitutional should be stayed pending appeal.

Brief Summary: The U.S. District Court for the Southern District of Texas enjoined Texas's voter identification law on October 11, nine days before early voting begins and twenty-four days before Election Day. The district court's decision was based on its determination that the ID requirements, which had been enacted by the state legislature in 2011, abridged the right to vote, discriminated against minority voters, and amounted to an unconstitutional poll tax. The State of Texas filed an emergency motion for stay pending appeal in the U.S. Court of Appeals for the Fifth Circuit. Based primarily on the extremely fast-approaching election date, the Fifth Circuit stayed the district court's judgment pending appeal. As a result, the challenged requirements will apply in the upcoming November 2014 election, unless the Supreme Court intervenes to vacate the Fifth Circuit's stay.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/14/14-41127-CV0.pdf.

Panel: Circuit Judges Clement, Haynes, and Costa

Argument Date: N/A

Date of Issued Opinion: 10/14/2014

Docket Number: No. 14-41127

Decided: The State's motion for a stay of the district court's judgment pending appeal is granted.

Case Alert Author: Kirsty Davis

Counsel: Chad Dunn, Brazil & Dunn, for Plaintiffs-Appellees Veasey, Hamilton, Deleon, Carrier, Burns, Montez, Pope, Ortiz, Ozias, League of United Latin American Citizens, Mellor-Crumley, and Dallas County, TX; Anna Baldwin, U.S. Dept. of Justice, for Plaintiff-Appellee United States of America; Leah Aden, NAACP Legal Defense & Educational Fund, Inc., for Intervenor Plaintiffs-Appellees Imani Clark, and Texas League of Young Voters Education Fund; Rolando Rios for Intervenor Plaintiff-Appellee Texas Association of Hispanic County Judges and County Commissioners; Preston Henrichson for Intervenor Plaintiff-Appellee Mexican American Legislative Caucus-Texas House of Representatives; Vishal Agraharkar, New York University, Brennan Center for Justice, for Plaintiff-Appellee Texas State Conference of NAACP Branches; Jose Garza for Plaintiff-Appellees Espinosa, Estrada, La Union Del Pueblo Entero, Incorporated, Martinez Lara, Medez, and Taylor; Jonathan Mitchell, Solicitor General, for Defendant-Appellants Perry, in his Official Capacity as Governor of Texas, Berry, in her Official capacity as Texas Secretary of State, the State of Texas, and Mcgraw, in his Official Capacity as Director of the Texas Dept. of Public Safety.

Author of Opinion: Judge Clement (Judge Costa concurring in the judgment)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 10/15/2014 09:35 PM     5th Circuit     Comments (0)  

October 13, 2014
  United States of America v. Robert Paladino - Third Circuit
Case Name: United States of America v. Robert Paladino - Third Circuit

Headline: Third Circuit rules denial of allocution during sentencing proceedings are reversible plain error even if the defense and prosecution reached a plea agreement.

Area of Law: Criminal Sentencing

Issues Presented: Whether a District Court commits plain error at a sentencing hearing when it fails to address the defendant even though the defense and prosecution had reached a plea agreement?

Brief Summary: Robert Paladino ("Paladino") pled guilty in November 21, 2006. On April 24, 2013, Paladino was released from custody and began the supervised release portion of his sentence. Between July and August of 2013, Paladino's probation officer filed two petitions reporting three violations of his supervised release conditions. During Paladino's revocation hearing on August 12, 2013, the only time the District Court addressed Paladino was when the District Court asked whether he understood the plea agreement. The Third Circuit vacated the District Court's sentence and remanded the proceedings for new sentencing. The Third Circuit concluded that the District Court committed reversible plain error because it did not afford Defendant the opportunity to speak during the sentencing hearing. The Third Circuit also concluded that a defendant must be provided with an opportunity for allocution even when there is a plea deal as the District Court has discretion to accept or deny the plea agreement.

Significance (if any):

Extended Summary: Robert Paladino pled guilty in November 21, 2006 to one count of distributing material depicting the sexual exploitation of a minor. On April 20, 2007, The District Court sentenced Paladino to 120 months imprisonment followed by a ten-year term of supervised release. On April 24, 2013, Paladino was released from custody and began the supervised release portion of his sentence. Between July and August of 2013, Paladino's probation officer filed two petitions reporting three violations of his supervised release conditions. During Paladino's revocation hearing on August 12, 2013, the District Court asked Paladino's counsel whether they contested any of the alleged violations. Paladino's counsel stated objections. The Government and Paladino's defense counsel reached an agreement for a period of imprisonment of eight months followed by the remaining supervised release. For the first time, the District Court addressed Paladino and asked whether he understood the deal, to which Paladino's reply was "Yes." The District Court sentenced Paladino pursuant to the agreement and modified the terms of the supervised release conditions. Paladino appealed, arguing the District Court committed plain error by not allowing Paladino the opportunity of allocution.

The Third Circuit vacated the District Court's sentence and remanded the proceedings for new sentencing. The Third Circuit concluded the denial of allocution rights of a criminal defendant was reversible plain error. Since the Supreme Court has previously ruled that district courts must unambiguously address themselves to the defendant, the Third Circuit determined there was a plain error by the District Court in denying Paladino the right to speak. Second, the Third Circuit concluded the right of allocution is a substantial right that could play a role in sentencing decisions, especially as the District Court had discretion during sentencing. Lastly, the Third Circuit concluded that even in the case of plea agreements, the District Court still has the discretion to approve or deny the agreements, and therefore allocution is a substantial right even when an agreement is reached.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133689p.pdf.

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

Argument Date: June 24, 2014

Argument Location: Philadelphia, PA

Date of Issued Opinion: October 8, 2014

Docket Number: No. 13-3689

Decided: Vacated and remanded to the District Court for resentencing.

Case Alert Author: Ilya Gomelsky

Counsel: Sarah S. Gannett, Esq. for Appellant; Rebecca Ross Haywood, Esq. and Michael L. Ivory, Esq. for Appellee.

Author of Opinion: Greenway, Jr., Circuit Judge.

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/13/2014 02:54 PM     3rd Circuit     Comments (0)  

  Courtney Douglass v. Convergent Outsourcing - Third Circuit
Headline: Third Circuit Holds Visible Debt Collection Account Number on Envelope a Violation of FDCPA

Area of Law: Federal Debt Collection Practices Act

Issues Presented: Is the FDCPA violated where a debt collector sends a letter to a debtor in which the debtor's account number is visible through the cellophane window on the envelope?

Brief Summary:

Douglass received a debt collection letter from Convergent Outsourcing. The letter had a debt collection account number visible through the cellophane window on the envelope. The Third Circuit held, without deciding if a benign language exception existed to 15 U.S.C. § 1692f(8), that an account number capable of revealing that a recipient was a debtor was a violation within the scope of the plain language of the Fair Debt Collection Practices Act. The Third Circuit vacated and remanded to the District Court for further proceedings.

Extended Summary:

Douglass, an alleged debtor, received a mailing from Convergent Outsourcing (Convergent), a debt collector. Through the cellophane window on the envelope, a portion of the debt collection letter was visible. Convergent argued that a plain reading of 15 U.S.C. § 1692f(8) - prohibiting all markings on debt collection envelops except for the name and address of the debt collection and a limited form of the collectors' name - would produce absurd results. Convergent argued that the account number was "benign language" and urged the Third Circuit to adopt an exception for benign language.
The Third Circuit first held that language visible through a window into the envelope fell under §1692(f)(8). Further the Court held that it was unnecessary for the Court to reach the question of whether there is a benign language exception because the account number was not benign. The Third Circuit held that an account number on a debt collection envelope is a violation of § 1692f(8). The Third Circuit distinguished cases in other Circuits that found benign language exceptions by noting that benign language was incapable of violating the privacy of alleged debtors. The Third Circuit reasoned, however, that an account number for a debt collection account could reveal that the named person was a debtor. For these reasons, the Third Circuit reversed the grant of summary judgment in favor of Convergent and remanded for further proceedings.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/133588pa.pdf

Panel: Fisher and Scirica, Circuit Judges, Mariani, District Judge

Argument Date: April 8, 2014

Date of Issued Opinion: October 10, 2014

Docket Number: No. 13-3588

Decided: Vacated and Remanded

Case Alert Author: Philip Jones

Counsel:

Cary L. Flitter, Esq. (argued), Andrew M. Milz, Esq., Sara Ellen M. Hutchison, Esq. for Appellant

Richard J. Perr, Esq. (argued), Ed W. Walton, Esq. for Appellee

Author of Opinion: Scirica, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/13/2014 02:52 PM     3rd Circuit     Comments (0)  

  A.S. v. SmithKline Beecham Corp. - Third Circuit
Headline: Third Circuit Holds Re-Removal Based on Diversity Jurisdiction One Year After Case Commenced was Untimely: Orders Remand Back to State Court

Area of Law: Civil Procedure

Issue Presented: Whether a defendant may remove a case a second time based on diversity jurisdiction more than one year after the commencement of the case.

Brief Summary: A.S. and Sallee Miller ("Plaintiffs") filed suit in Pennsylvania state court against GlaxoSmithKline LLC ("GSK") claiming that its drug, Paxil, caused birth defects. GSK removed the case to the United States District Court for the Eastern District of Pennsylvania. The District Court remanded the case, finding that GSK was a citizen of Pennsylvania and therefore ineligible to remove the case. After remand, the Third Circuit decided Johnson v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir. 2013), in which the Third Circuit held that GSK was a citizen of Delaware. Within thirty days of Johnson, GSK re-removed the case. This time, the District Court denied Plaintiffs' motion to remand and certified its order for interlocutory review pursuant to 28 U.S.C. § 1292(b) to allow this Court to determine the propriety of re-removal. The Third Circuit held the second removal was untimely, reversed the order denying Plaintiffs' remand, and directed the District Court to remand this case back to state court.

Extended Summary: On September 30, 2011, A.S., who suffers from a congenital birth defect, and his mother, Sallee Miller, who ingested Paxil while pregnant, filed suit in Philadelphia County Court of Common Pleas against SmithKline Beecham Corp. d/b/a GlaxoSmithKline LLC ("GSK") claiming that its drug, Paxil, caused birth defects. The complaint alleged that all parties were citizens of Pennsylvania. GSK removed the case within thirty days of receipt of the complaint based upon diversity. On Plaintiffs' motion, the case was consolidated with a number of other Paxil cases before a district court judge who had previously held that GSK was a citizen of Pennsylvania. Consistent with that holding, the District Court remanded this case along with the other consolidated cases to state court, holding that GSK was a citizen of Pennsylvania and could not remove a case from Pennsylvania state court to federal court. Patton ex rel. Daniels-Patton v. SmithKline Beecham Corp. The same judge also issued an opinion identical to Patton in Maldonado ex rel. Maldonado v. SmithKline Beecham Corp., which remanded twenty-one other Paxil cases to state court. This case returned to state court on January 4, 2012.

On June 7, 2013, the Third Circuit issued Johnson, which held that GSK was a citizen of Delaware. In reaching that holding, this Court explicitly rejected the reasoning in Patton and Maldonado. Less than thirty days after the Johnson decision, GSK filed a second notice of removal in this case and in eight other cases with the same procedural posture. Guddeck v. SmithKline Beecham Corp. was the first case holding that removal to federal court was proper. In Guddeck, the District Court noted that there was "no dispute that the parties are of diverse citizenship" after Johnson, that the amount-in-controversy requirement was satisfied, and that GSK was not an in-state defendant. Guddeck also held that Johnson established that the case was "erroneously remanded" after the first removal, Johnson "provided a new and different ground for a second notice of removal," and GSK's second "removal notice [was] simply effectuating what was a timely and proper first removal." The District Court in this present case adopted Guddeck's reasoning and denied Plaintiffs' motion to remand.

After the District Court denied remand to state court, this case was transferred to the Middle District of Pennsylvania, where Plaintiffs filed a motion to certify for interlocutory appeal the following question: whether a defendant may remove a case a second time based on diversity jurisdiction more than one year after the commencement of the case? The District Court certified the question for appeal, which the Third Circuit accepted pursuant to 28 U.S.C. § 1292(b). The Third Circuit held that GSK's re-removal to federal court was prohibited by § 1446(b) and remand to the state court was required. The Third Circuit explained the second removal was untimely, and reversed the order denying remand, directing the District Court remand this case to state court.

First, the Third Circuit ruled that GSK did not comply with the first paragraph of § 1446(b) because GSK's second removal occurred more than thirty days after its receipt of the initial pleading. GSK argued that § 1446(b)'s first paragraph does not bar its second removal because it does "not impose any time limits on successive removals." However, the Third Circuit noted that while the first paragraph does not explicitly mention successive removals, it does expressly forbid untimely removals. Here, the relevant notice of removal was untimely: it was filed over a year and a half after GSK was served with the initial pleading, namely the state court complaint. Therefore, GSK could not remove under the first paragraph of § 1446(b).

Next, the Third Circuit ruled that the second paragraph did not relieve GSK of the first paragraph's bar. The Third Circuit explained that the second paragraph is an exception to the thirty-day time limit in the first paragraph and sets a separate thirty-day time limit that applies when: (1) "the case stated by the initial pleading is not removable" and (2) the defendant receives "an amended pleading, motion, order or other paper" (3) from which "it may first be ascertained that the case is one which is or has become removable." In diversity cases, the second paragraph has a fourth requirement: removal may not occur "more than 1 year after the commencement of the action."

The Third Circuit ruled GSK could not rely on the second paragraph because there was no "amended pleading, motion, order or other paper" to trigger its thirty-day time limit. In general, the terms "amended pleading, motion, order or other paper" only "address[] developments within a case" and, therefore, court decisions in different cases do not count as an "order." The Third Circuit also ruled that GSK was not entitled to equitable tolling.

Lastly, the Third Circuit ruled GSK's second notice of removal could not relate back to the first notice of removal. The Third Circuit explained that any relation back in this case must be justified under a court's equitable powers. The Third Circuit explained that neither the fact that a particular judge was assigned to the case or the error in remanding the case provided a basis for equitable relief. The Third Circuit also explained that the second notice of removal does not relate back to the first notice of removal because nothing was pending in the federal court to which the second notice could relate. A copy of the Court's opinion can be found here: http://www2.ca3.uscourts.gov/opinarch/141229p.pdf

Panel (if known): Smith, Shwartz, Roth Circuit Judges

Argument Date: September 10, 2014

Date of Issued Opinion: October 9, 2014

Docket Number: No. 14-1229

Decided: Reversed and directed District Court to remand to state court

Case Alert Author: Katie Cooper Davis

Counsel: Howard J. Bashman, Esq. for the Appellants, A.S., a Minor, by Sallie Miller, Guardian, and Sallie Miller, Individually; and for Appellee SmithKline Beecham Corp d/b/a GlaxoSmithKline, Lisa S. Blatt, Esq., Andrew T. Bayman, Esq., Jeffrey S. Bucholtz, Esq., Joseph E. O'Neil, Esq.

Author of Opinion: Judge Shwartz

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/13/2014 02:49 PM     3rd Circuit     Comments (0)  

October 12, 2014
  United States v. Lewis - Tenth Circuit
Case Name: United States v. Lewis - Tenth Circuit

Headline: Tenth Circuit holds that sex offenders who relocate and fail to register under SORNA in their new state of residence can be prosecuted in the state they departed from.

Areas of Law: Criminal Law, Criminal Procedure

Issues Presented:

1. Can a sex offender who moves to a new state but fails to register under the Sex Offender Registration and Notification Act ("SORNA") be prosecuted under 18 U.S.C. § 2250 in the state from which he departed?

Brief Summary:

Defendant was convicted of statutory rape in Missouri and required to register as a sex offender. He registered in his residential state of Kansas, but afterwards relocated and failed to register in Missouri and Georgia. He was charged and convicted in Kansas for violations of SORNA and sentenced to two years in prison.

He appealed his conviction, arguing that Kansas was an improper venue because his failure to register occurred in Missouri and Georgia. The 10th Circuit affirmed the defendant's conviction, holding that venue for prosecuting 18 U.S.C. § 2250 violations is appropriate in multiple jurisdictions which include the departure jurisdiction.

Extended Summary:

In 1996, the defendant pleaded guilty to statutory rape in Missouri. He was required by the federal Sex Offender Registration and Notification Act ("SORNA") to register as a sex offender in his state of residence. He registered in 2011 in Kansas, but then abandoned his residence and left the state. Law enforcement officers in Kansas were unable to locate him in connection with an unrelated warrant and turned the matter over to U.S. Marshals, who tracked the defendant as far as Missouri but did not find him. The defendant was ultimately arrested in July 2012 in Atlanta, GA, where he had not registered as a sex offender. He was indicted in the District of Kansas for one count of failing to register under 18 U.S.C. § 2250(a).

The defendant first filed a motion to dismiss for improper venue because the alleged violations had not occurred in Kansas, arguing that he had registered appropriately in Kansas and only failed to register after he left the state. The district court denied the motion. After trial, he filed a motion for judgment of acquittal, again raising the improper venue issue and challenging the sufficiency of the evidence of venue.

The 10th Circuit reviewed the district court's legal finding of sufficient evidence to support venue using a de novo standard of review. The court described its role as deciding whether, when "viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the finder of fact, the Government proved by preponderance of direct or circumstantial evidence that the crimes charged occurred within the district." United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985).

The court began its analysis by describing the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. The first relevant provision in SORNA is the civil registration requirement, 42 U.S.C. § 16913, which requires a convicted sex offender to register and keep that registration current "in each jurisdiction where the offender resides". The court interpreted SORNA's § 16913(c) reporting obligation to require that an offender update his registration within three days of abandoning his residence. In the defendant's case, this required him to update his registration with Missouri after leaving Kansas and again with Georgia after settling there. The second relevant provision, 18 U.S.C. § 2250, is the criminal enforcement mechanism that prescribes fines or imprisonment for knowingly failing to comply with the registration provision of SORNA. To prove that the defendant violated 18 U.S.C. § 2250, the government was required to show that Lewis had an obligation to register under SORNA, that he travelled in interstate commerce, and that he knowingly failed to register or update his registration during the time period specified in the indictment.

The defendant did not dispute that the government properly established a § 2250 violation, but challenged its choice of venue. He argued that Kansas was an inappropriate venue because his reporting obligation only arose when he was in Missouri and Georgia, and so his SORNA violations only occurred in those two states. The court described the venue requirements of the United States Constitution and the Federal Rules of Criminal Procedure as requiring that prosecution take place in the district where the offense occurred unless the criminal statute or other procedure requires a different venue. 18 U.S.C. § 2250 does not have a specific venue provision, so the court was required to ascertain "the nature of the crime alleged and the location of the act or acts constituting it." United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir. 1987).

The court considered its prior holding in United States v. Murphy, 664 F.3d 798, 803 (10th Cir. 2011). In Murphy, the defendant relocated from Utah to Belize. The government prosecuted that defendant in the departure state of Utah and the 10th Circuit affirmed the conviction. The court in Murphy did not directly address the question of whether a § 2250 offense occurs in the departure district. It held that, when traveling abroad, a sex offender is required to update his registration in his departure district because of the plain language of § 16913. The requirement to update his registration "triggered" when the defendant left his permanent residence in Utah and, because SORNA does not apply extraterritorially, his departure state was the only appropriate state with which to update his registration. The court reasoned that this necessarily permitted venue to lie in the departure state.

Murphy also held that the departure district remains a "jurisdiction involved" for purposes of § 16913 even after the sex offender has left the state. The reporting obligation to that state does not end simply because the defendant leaves it. It noted that this view is shared by the National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030-01 (July 2, 2008), which requires that a sex offender's updated registration in a new district be provided to the departure district. This allows for an "interconnected web of state registries."

The defendant argued that Murphy was wrongly decided, citing the 8th Circuit's decision in United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013). Lunsford held that "an offender who leaves a domestic jurisdiction for a foreign jurisdiction" need not "necessarily . . . update his registration in the domestic jurisdiction where he formerly resided" depending on the circumstances. The 10th Circuit disagreed with the defendant, finding Lunsford unpersuasive because that case did not contemplate the issue of venue existing in the departure district when the defendant fails to register in any subsequent domestic jurisdiction. Lunsford was critical of the argument that a sex offender is required by federal law to notify the departure jurisdiction of their relocation. The 10th Circuit noted that neither Murphy nor the present case imposed such a requirement; they only require that a sex offender update his registration after relocating, but provide that an offender can be prosecuted in the departure jurisdiction if they fail to do so.

The 10th Circuit held that Murphy was the controlling case because it established that a violation of § 2250 occurs in the departure district. Murphy relied on cases from other circuits that also found venue to be proper. Those cases relied on 18 U.S.C. § 3237, the Federal Venue Statute that allows offenses begun in one district and completed in another to be "inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). The 10th Circuit previously held that a § 2250 violation is a continuing offense. In United States v. Hinckley, 550 F.3d 926, 936 (10th Cir. 2008), the court held that "[a]n interpretation of the sex offender registration requirement that defines it in any way other than as a continuing offense would result in absurdity." The court held that a SORNA violation extends from the moment a sex offender abandons his residence in the departure jurisdiction until the moment he either registers or is arrested, and that this creates multiple venues in which the sex offender can be prosecuted under § 2250.

The court noted that its decision was consistent with those of other circuits that have also considered the matter of venue in a § 2250 prosecution. It also noted that other district courts within the 10th Circuit have reached the same conclusion. The court held that Murphy and § 3237 both provide that venue for a § 2250 violation is appropriate in the departure district.

The defendant's next argument challenged Murphy's applicability to the case. The defendant alleged that he left Kansas before the dates specified in the government's indictment. He argued that, because Murphy involved a defendant who was in Utah in the temporal time frame alleged by the government, Murphy is inapplicable when a defendant's abandonment of his residence does not fall within the indictment's prescribed timeframe. The court disagreed with this contention.

The defendant then argued that the limited factual record allowed for an inference that he had not violated the registration requirements of SORNA prior to October 1, 2011 because he had not abandoned his Kansas residence. The court disagreed, noting that the government proved by a preponderance of the evidence that the defendant had abandoned his Kansas residence.

The defendant's final argument was that the government's theory of the case relied on the premise that a sex offender has an affirmative duty to notify the state from which he departs that he is moving to another state. His challenge relies on the 9th Circuit's decision in United States v. DeJarnette, 741 F.3d 971, 984 (9th Cir. 2013), in which the defendant was convicted of sex crimes before SORNA's enactment. The defendant in DeJarnette ignored existing state and federal registration laws and moved from California to Georgia in March of 2008. SORNA became retroactively applicable to pre-Act offenders in August 2008, but the 9th Circuit held that pre-Act offenders were not required to register in the jurisdiction of their conviction if it differed from their residence when SORNA's retroactivity came into effect. The 10th Circuit disagreed with the defendant's interpretation of this case, noting that it merely established the reach of SORNA's retroactivity and was inapplicable to the defendant's case. The court held that venue for a § 2250 violation can lie in the departure district and affirmed the defendant's conviction.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3173.pdf

Panel: Tymkovich, Baldock, Bacharach

Date of Issued Opinion: September 30, 2014

Docket Number: No. 13-3173

Decided: Affirmed the district court's decision to deny Lewis's motion for a judgment of acquittal based on insufficient evidence of proper venue.

Counsel:

John K. Henderson, Jr., Assistant Federal Public Defender, Federal Public
Defender's Office, Wichita, Kansas, for Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United
States Attorney, with him on the brief), United States Attorney's Office, Topeka,
Kansas, for Appellee.

Author: Tymkovich

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 10/12/2014 03:10 PM     10th Circuit     Comments (0)  

October 9, 2014
  In re Urethane Antitrust Litigation - Tenth Circuit
Case Name: In re Urethane Antitrust Litigation - Tenth Circuit

Headline: Tenth Circuit affirms $1.06 billion judgment against Dow Chemical Company under Sherman Antitrust Act for its role in price-fixing conspiracy.

Areas of Law: Antitrust Law, Civil Procedure

Issues Presented:

1. Do individualized issues relating to damages preclude Fed. R. Civ. P. 23(b)(3) class certification?

2. Did the District Court err in admitting the testimony of the plaintiffs' expert witness on statistics?

3. Is there sufficient evidence to support a price-fixing conspiracy claim without a causal connection between parallel price-increase announcements and increased prices?

4. Does distribution of damages through a pro rata reduction of the plaintiffs' damages model violate the Seventh Amendment to the United States Constitution?

Brief Summary:

The defendant (Dow Chemical Company) appealed the district court judgment against it, arguing that the plaintiffs class should not have been certified under Fed. R. Civ. P. 23(b)(3) or that certification should have been revoked on its motion because the class members had individualized issues relating to damages. It also argued that the testimony of expert witness Dr. McClave was unreliable and should not have been admitted into evidence, that evidence presented against it was insufficient to establish its liability, and that the manner in which the damages award was distributed violated the Seventh Amendment to the United States Constitution.

The Tenth Circuit held that the district court did not abuse its discretion in certifying and subsequently refusing to decertify the class because the existence and impact of a conspiracy raises common liability-related questions that predominate over the individualized questions of each class member's damages. It held that the district court did not err in admitting the expert witness' testimony because the defendant's criticism of the expert's use of statistical models spoke to the weight of the evidence and not its admissibility. It held that the evidence presented at trial was sufficient to allow the jury to find liability. Finally, the court held that allocating damages based on a pro rata reduction of the expert witness' damages model did not violate the defendant's Seventh Amendment rights because the defendant has no legal interest in the method of distribution for aggregate damages amongst class members.

Extended Summary:

A group of industrial purchasers of polyurethane products (collectively plaintiffs) sued Bayer AG, Bayer Corporation, Bayer Material Science, BASF Corporation, Huntsman International LLC, Lyondell Chemical Company, and Dow Chemical Company under the Sherman Antitrust Act, alleging a conspiracy to fix prices and allocate customers and markets. Every defendant but Dow Chemical Company settled prior to the trial. Plaintiffs subsequently dropped their allocation theory and focused solely on the price-fixing conspiracy. The jury found that the defendant participated in a price-fixing conspiracy, that the conspiracy caused plaintiffs to pay more for polyurethane products than they would have in a competitive market, and that plaintiffs suffered damages of $400,049,039. After trebling (tripling) damages under antitrust law and deducting settlements paid by the other defendants, the district court entered a judgment against the defendant for $1,060,847,117. The court allowed the plaintiffs to distribute the damages based on their expert witness' damages model with a pro rata reduction to reflect the jury's award of a lesser damages amount than the expert proposed.

The defendant challenged the district court's certification of the plaintiffs as a class under Fed. R. Civ. P. 23(b)(3), arguing that individualized questions relating to the damages suffered by different plaintiffs predominated over questions common to all members of the plaintiffs class. The defendant further argued that certification of the class in this instance was contrary to the Supreme Court's holdings in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).

The court addressed the defendant's challenge to the class certification by first evaluating, using a de novo standard of review, whether the district court applied the proper legal standard by requiring "that the questions of law or fact common to class members predominate over any questions affecting only individual members." Holding that the correct legal standard was applied, the court reviewed the district court's decision to certify and refusal to decertify the class for abuse of discretion.

The court summarized Wal-Mart, in which the plaintiffs were female employees who had alleged discrimination by their supervisors in decisions of pay and promotions. The district court in Wal-Mart certified a class of female employees, and the Ninth Circuit Court of Appeals upheld that certification. The Supreme Court disagreed with the Ninth Circuit and reversed. It reasoned that the evidence did not show a company-wide policy of discrimination or "common mode of exercising discretion that pervade[d] the entire company". Emphasizing the need for a class action to be capable of yielding common answers that would drive the resolution of litigation, the Supreme Court decertified the class because there was no common answer to the cause of the individual plaintiffs' pay and promotion disparities. The Court further held that the district court's method of deciding class-wide liability based on a sampling of class members, or "trial by formula", violated Wal-Mart's right to individual proceedings to present and litigate statutory defenses to individual claims.

The defendant here argued that it was entitled to individual proceedings to show that some plaintiffs could have escaped or mitigated their damages through price negotiations. The 10th Circuit disagreed because the defendant failed to show that the district court abused its discretion in finding that there were class-wide issues that predominated over those individualized issues. The district court held that the existence of a conspiracy and impact raised common questions capable of class-wide proof. Citing other courts that have addressed the matter, the court held that price-fixing affects all market participants and results in an inference of class-wide impact even if the prices are individually negotiated, especially when the conspiracy artificially inflates the baseline for price negotiations. The court noted that courts often tend to treat proof of a conspiracy as a common question that predominates over other issues. The district court did not abuse its discretion when it weighed the evidence and found that these common issues predominated over the individualized damages issues.

The defendant also argued that the district court ran afoul of Wal-Mart by allowing the use of extrapolations provided by Dr. McClave to prove class-wide impact and damages. It compared these extrapolations to the "trial by formula" prohibited by Wal-Mart. The 10th Circuit disagreed, holding that liability was not established using extrapolation; extrapolation was only used to approximate damages, while liability was established through common evidence. Dow also argued that class certification was inappropriate because Dr. McClave's models for extrapolation were defective, but Dow did not attempt to explain how this may have caused individualized questions to predominate over common questions or how it related to an abuse of discretion by the district court. The court declined to consider the issues because Dow failed to raise them at the district court level.

The court similarly declined to adopt the defendant's Comcast arguments. Comcast involved a class action lawsuit based on four theories of antitrust impact. The district court rejected three of the four theories as being incapable of class-wide proof. The only evidence used to support class-wide damages was the testimony of Dr. McClave, who, in that case, based his models on all four of the theories of antitrust impact. Because three of those four theories were rejected by the district court, the Supreme Court held that the models Dr. McClave used were defective and that the class did not satisfy its burden of proving damages on a class-wide basis. Without the models, the plaintiffs had no proof of class-wide damages and, as the Court reasoned, individualized questions would "inevitably overwhelm questions common to the class." Therefore, class certification could not survive.

The Tenth Circuit distinguished the present case from Comcast. It noted that Dr. McClave's benchmarks in the present case differed from those used in Comcast and were not necessarily defective. It also noted that the class certification in Comcast required proving class-wide damages, whereas class certification in the present case did not. Finally, the court noted that the individual issues that could have predominated in Comcast were not present in this case.

The defendant also challenged the admission of Dr. McClave's testimony into evidence. The 10th Circuit applied a de novo standard of review to whether the correct legal standard for admissibility was applied, citing the "relevant and reliable" standard of Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Finding that it was, the court reviewed the decisions of the district court for abuse of discretion.

The defendant argued against the reliability of Dr. McClave's multiple-regression analysis models, claiming that he engaged in "variable shopping" and "benchmark shopping" by choosing variables that would yield the supra-competitive prices he believed to exist. The court disagreed. The court referred to Bazemore v. Friday, 478 U.S. 385 (1986), as the standard for regression analysis models, which allows for admissibility as long as the models consider all of the major factors and variables.

The defendant argued that the use of toluene diisocyanate (TDI) without also including domestic demand variables violated the Bazemore standard. In his own testimony, Dr. McClave explained that he did so because domestic demand variables had no statistically significant relationship to price. The court held that allowing this was not an abuse of discretion by the district court.

The defendant also argued that Dr. McClave's use of domestic MDI and polyols variables without also using export variables constituted the omission of major variables. The defendant did not raise this objection in his Motion to Exclude Dr. McClave's testimony, however, and the court opted to apply a plain-error standard of review. Finding that there was no obvious error in Dr. McClave's choice of variables, the court declined to reverse on these grounds.

Similarly, the defendant argued that Dr. McClave engaged in "benchmark shopping" by moving the year 2004 from the "conspiracy period" to the competitive market "benchmark" period to produce more favorable results for the plaintiffs. The court held that this argument was without merit. Expert testimony must be reliable to be admitted into evidence. The court cited Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013), which held that reliability "is primarily a question of the validity of the methodology employed by an expert, not the quality of the data used in applying the methodology or conclusions produced." The district court considered the defendant's arguments but determined that they went to the reliability of Dr. McClave's underlying data and not his methodology. The 10th Circuit held that this was not an abuse of the district court's discretion and declined to reverse on these grounds.

The defendant also challenged the sufficiency of the evidence used to demonstrate its liability, arguing that the district court erred in denying its motion for judgment as a matter of law. The 10th Circuit engaged in a de novo review of that decision. In the 10th Circuit, judgment as a matter of law is inappropriate "unless the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion." (citing Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996)).

The court reviewed each of the defendant's three component arguments of this challenge. The defendant first argued that there was insufficient evidence that a price-fixing agreement was effectively implemented. It did not dispute the existence of an agreement to coordinate price increases and make them stick, nor did it dispute the existence of evidence involving coordination of those price increase announcements. Rather, it argued a lack of evidence of follow-through by the alleged conspirators to make the price increases stick. It further argued that this lack of evidence meant that the plaintiffs could not prove that there was an evidentiary connection between the parallel price-increase announcements and the increased prices plaintiffs were alleging.

The court considered this argument by first examining the evidence presented against the defendant at trial. This evidence included the testimony of insiders privy to knowledge of the conspiracy, including employees of the defendant Dow Chemical Company and executives from several of the defendant companies that settled prior to trial. It also included instances of collusive behavior, evidence of the susceptibility of the particular market to collusion, and the setting of prices at supra-competitive levels. Ultimately, the court determined that this evidence went beyond parallel announcements of price increases.

The court further held that the plaintiffs did not need to establish a causal connection between the price-increase announcements and actual price increases. Rather, both the announcements and the actual price increases were caused by the conspiratorial agreement. Upon reviewing the evidence presented to support a jury's inference of the success of those announcements, the court held that the jury could have reasonably made those inferences.

The defendant then argued that there was insufficient evidence of a conspiracy involving Lyondell, who was one of the defendants who settled prior to trial. The court found this argument to be without legal or factual merit. Establishing liability under Section 1 of the Sherman Antitrust Act, 15 U.S.C. §1, only requires that the defendant not act unilaterally. Even without Lyondell's participation in the conspiracy, there was sufficient evidence of a conspiracy between Dow and the other defendant companies to withstand Dow's motion for judgment as a matter of law. Furthermore, the evidence presented was sufficient to allow a reasonable jury to infer Lyondell's participation in the conspiracy.

The defendant also argued that the jury necessarily rejected Dr. McClave's models, which therefore left insufficient evidence of impact and damages. This was based on the jury's finding that there was no injury for the 23-month period preceding November 24th, 2000. The defendant reasoned that the jury partially rejected Dr. McClave's models and that this rejection invalidated the models in their entirety. It further reasoned that, without these models, the plaintiffs lacked sufficient evidence of impact and damages.

The defendant's argument primarily relied on the D.C. Circuit Court of Appeals' decision in In re Rail Freight Fuel Surcharge Antitrust Litigation, 725 F.3d 244, 252 (D.C. Cir. 2013). In In re Rail Freight, the expert witness' damages model yielded damages for a time period in which prices were freely set, which meant finding damages for plaintiffs who could not have possibly been injured. The defendant in that case challenged class certification through an interlocutory appeal to the D.C. Circuit, arguing that the expert's testimony and flawed damages model were inadmissible and, without them, individualized questions would predominate in trial. The D.C. Circuit Court agreed.

The 10th Circuit held that In re Rail Freight did not apply to this case. The court did not share the D.C. Circuit's concern that individualized questions might possibly predominate because the trial had already occurred. Furthermore, although the jury found no damages for a specific period of time, the defendant did not demonstrate that any plaintiff in the class could not possibly have suffered injuries. The court reasoned that the jury could have limited the conspiracy period based on the defendant's explanation of prices before November 24th, 2000 while agreeing with Dr. McClave's analysis for the conspiracy period afterwards. The court declined to disturb the jury's unequivocal findings on impact and damages.

The defendant argued that the damages award violated its rights provided by the Seventh Amendment to the United States Constitution. Because of the implication of a constitutional question, the 10th Circuit reviewed this challenge using a de novo standard of review. Defendant argued that the apportionment of damages based on a pro-rata reduction of Dr. McClave's damages model was problematic because the reason for the jury's reduction in damages was unknown, and so applying Dr. McClave's model took from the jury "the question of liability and the extent of the injury by an assessment of damages", citing Dimick v. Schiedt, 293 U.S. 474, 486 (1935). The court disagreed.

It began its analysis by noting that the defendant had no legally recognizable interest in the apportionment of an aggregate damages award, particularly because it never requested individualized findings on damages. The defendant claimed an interest because it wanted to ensure that all of the plaintiffs were bound by the judgment, but it did not identify any threat to the binding effect of that judgment. The three cases the defendant cited to support its position involved issues pertaining to jurisdiction, a decertified class, and additur. The facts were so far removed from the present case as to render them inapplicable. The court held that the defendant had not properly established a Seventh Amendment violation, and so declined to reverse on those grounds.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3215.pdf

Panel: Lucero, Murphy, Bacharach

Date of Issued Opinion: September 29, 2014

Docket Number: No. 13-3215

Decided: Affirmed the district court. Rejected the defendant's challenges to the order for class certification, the refusal to decertify the class, the admission of Dr. McClave's testimony, the sufficiency of the evidence, and the award of damages.

Counsel:

Carter G. Phillips, Sidley Austin LLP, Washington, D.C. (Joseph R. Guerra, C. Frederick Beckner III, Kathleen Moriarty Mueller, Jeffrey S. Beelaert, Sidley Austin LLP, Washington, D.C.; and Charles J. Kalil, General Counsel, the Dow Chemical Company, Duncan A. Stuart, Associate General Counsel, the Dow Chemical Company, Midland, MI, on the briefs) for Defendant-Appellant.

Paul D. Clement, Bancroft PLLC, Washington, D.C. (Zachary D. Tripp, Candice Chiu, William R. Levi, Bancroft PLLC, Washington, D.C.; Roberta D. Liebenberg, Donald L. Perelman, Gerard A. Dever, Matthew Duncan, Fine, Kaplan, & Black, RPC, Philadelphia, PA; Richard A. Koffman, Kit A. Pierson, Christopher J. Cormier, Sharon K. Robertson, Laura A. Alexander, Cohen Milstein Sellers & Toll, PLLC, Washington, D.C.; Joseph Goldberg, Freedman Boyd Hollander Goldberg Urias & Ward, P.A., Albuquerque, N.M.; Michael J. Guzman, Rebecca A. Beynon, Michael N. Nemelka, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, D.C.; and Robert W. Coykendall, Roger N. Walter, Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, KS, on the briefs) for Plaintiffs-Appellees.

Kathryn Comerford Todd, Tyler R. Green, National Chamber Litigation Center, Inc., Washington, D.C.; Jeffrey L. Kessler, George E. Mastoris, Winston & Strawn LLP, New York, NY; and Gene C. Schaerr, Robert F. Ruyak, William A. Roach, Jr., Winston & Strawn LLP, Washington, D.C., filed an Amicus Curiae brief for the Chamber of Commerce of the United States.

Jonathan D. Selbin, Jason L. Lichtman, Lief Cabraser Heimann & Bernstein, LLP, New York, NY; Jordan Elias, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA; and Ian J. McLoughlin, Rachel M. Brown, Shapiro Haber & Urmy, LLP, Boston, MA, filed an Amicus Curiae brief for the American Independent Business Alliance.

Author: Bacharach

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

Edited: 10/09/2014 at 03:22 PM by Barbara Bergman

    Posted By: Barbara Bergman @ 10/09/2014 03:16 PM     10th Circuit     Comments (0)  

  United States v. Stephens - Fourth Circuit
Headline: The Exception Slowly Becomes the Rule: Expanding the "Good Faith" Exception

Area of Law: Evidence, Fourth Amendment, Criminal Procedure

Issue Presented: Whether the district court correctly declined to exclude evidence where a warrantless GPS search (pre-Jones) was conducted in "good faith."

Brief Summary: While investigating Henry Stephens, an officer attached a GPS tracker to Stephens' car without a warrant. Stephens was indicted using evidence found with the help of the GPS tracker. Applying the Supreme Court's ruling in United States v. Jones, the district court found that attachment of the tracker to Stephens' car violated the Fourth Amendment. However the district court refused to exclude the evidence because the police officer relied in good faith on the state of the law prior to Jones. Stephens later entered a guilty plea, reserving the right to appeal the district court's suppression order.

On appeal, the United States Court of Appeals for the Fourth Circuit upheld the district court's ruling that the good faith exception to the exclusionary rule should apply. The court held that the Supreme Court's beeper cases and other circuits' rulings on GPS tracking devices constituted binding precedent, and therefore the officer acted in good faith when relying on those decisions pre-Jones. In reaching this result, the court expanded the "good faith exception" that had been applied in United States v. Davis.

In the dissent, Judge Thacker argued that under the proper application of Davis, the good faith exception applies only "when binding appellate precedent specifically authorizes a particular police practice."

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

Panel: Judges Shedd, Thacker and Hamilton.

Argument Date: 10/30/2013

Date of Issued Opinion: 08/19/2014

Docket Number: No. 12-4625

Decided: Affirmed

Case Alert Author: Rebecca Berger

Counsel: ARGUED: Christopher Ford Cowan, LAW OFFICE OF CHRIS F. COWAN, Columbus, Ohio, for Appellant. Albert David Copperthite, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Shedd

Case Alert Supervisor:
Professor Renée M. Hutchins

    Posted By: Renee Hutchins @ 10/09/2014 02:04 PM     4th Circuit     Comments (0)  

  Chen v. Holder - Fourth Circuit
Headline: Fourth Circuit Remands After Determining the Immigration Court Cannot Hand-Pick Credibility Findings

Area of Law: Immigration Law

Issue Presented: Whether the Board of Immigration Appeals appropriately affirmed the Immigration Judge's denial of the petitioner's asylum petition on adverse credibility grounds.

Brief Summary: Chinese National Pin Zuang Chen sought asylum in the United States on the ground of religious persecution. An Immigration Judge (IJ) denied Chen's asylum application. In particular, the IJ found that Chen was not credible because several facts regarding his alleged persecution were implausible. Chen appealed to the Board of Immigration Appeals (BIA). The BIA dismissed the appeal on the grounds that the IJ's decision was not clearly erroneous. Chen then appealed to the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit concluded that the IJ's decision was speculative and unsupported by substantial evidence. The court therefore vacated the BIA's order and remanded for further proceedings.

To read the full opinion, please click here.

Panel: Judges King, Thacker, and Hamilton

Date of Issued Opinion: 09/10/2014

Docket Number: No. 14-1080

Decided: Vacated and remanded

Case Alert Author: Katherine C. Parris

Counsel: Troy Nader Moslemi, MOSLEMI & ASSOCIATES, New York, New York, for Petitioner. Stuart F. Delery, Assistant Attorney General, Linda S. Wernery, Assistant Director, Susan Bennett Green, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/09/2014 10:36 AM     4th Circuit     Comments (0)  

October 8, 2014
  Danser v. Stansberry - Fourth Circuit
Headline: Sex Offender's § 1983 Claim Denied

Areas of Law: Civil Litigation; 42 U.S.C. § 1983

Issue Presented: Whether the district court erred in holding that certain prison officials were not entitled to qualified immunity for injuries a federal prisoner suffered at the hands of another inmate.

Brief Summary: David K. Danser, a federal prisoner serving a 370-month sentence for various sexual offenses against children, filed a Bivens complaint against a number of prison officials after being attacked by another inmate during outdoor recreational time.

Prior to the attack, Danser was moved into a protective housing unit following a verbal altercation with another inmate and prison gang member. On the day of the attack, Danser was placed in an outdoor 10' x10' cage with three different inmates for his allotted recreational time. One of these inmates, a member of the violent prison gang La Nuestra Familia, brutally attacked Danser after the official on duty broke protocol and left his post. Danser suffered a ruptured spleen, a punctured lung, and broken ribs. He filed a complaint against the officer on duty and a number of the officer's supervisors under 42 U.S.C. § 1983. Danser alleged that the officials violated his constitutional rights by acting with deliberate indifference towards his safety.

The prison officials filed a motion for summary judgment asserting qualified immunity, which the district court denied. On appeal, the officials argued that they did not violate Danser's constitutional rights because they did not have the culpable state of mind necessary to establish a deliberate indifference claim. The U.S. Court of Appeals for the Fourth Circuit agreed with the officials, holding that Danser had not established anything more than the officials' mere negligence, a degree of culpability insufficient to satisfy 42 U.S.C. § 1983's high standard. Emphasizing the undisputed fact that Danser and his assailant had no separation orders between themselves, the Fourth Circuit held that the officials were entitled to qualified immunity, and remanded the case with instructions that the district court grant judgment for the defendants.

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

Panel: Judges Wilkinson, Keenan, and Diaz

Argument Date: 05/13/2014

Date of Issued Opinion: 09/12/2014

Docket Number: No. 13-1828

Decided: Vacated and remanded with instructions by published opinion

Case Alert Author: Emily Bolyard

Counsel: ARGUED: Michael Gordon James, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellants. Elizabeth Guild Simpson, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, R.A. Renfer, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellants.

Author of Opinion: Judge Keenan

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/08/2014 11:03 AM     4th Circuit     Comments (0)  

  United States v. Jameal Gould - Fourth Circuit
Headline: Pro Se Inmate Convinces Fourth Circuit to Re-examine Sentence

Area of Law: Sentencing

Issues Presented: Whether there was sufficient evidence to support the district court's finding that there was an intervening arrest that affected the computation of the criminal history score.

Brief Summary: Jameal Gould contended that his criminal history score was incorrectly computed. Specifically, Gould maintained that his two Maryland convictions should not have been counted separately because there was no intervening arrest between the commission of the two offenses. The Fourth Circuit found the sentencing record to be inconclusive on this issue and remanded the case to the district court to resolve this factual discrepancy.

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

Panel: Circuit Judges Duncan, Thacker, and Davis, Senior Circuit Judge

Argument Date: 08/26/14

Date of Issued Opinion: 09/04/14

Docket Number: No. 13-7339

Decided: Vacated and Remanded

Case Alert Author: Steven Roy

Counsel: Jameal Gould, Appellant Pro Se. Christine Marie Celeste, OFFICE OF THE UNITED STATES ATTORNEY, Peter Jeffrey Martinez, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Author of Opinion: Per curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/08/2014 09:28 AM     4th Circuit     Comments (0)  

October 6, 2014
  EQT Production Co. v. Adair - Fourth Circuit
Headline: Unpaid Gas Owners Need More Than Just Sympathy

Areas of Law: Class Action Lawsuits; Property

Issue Presented: Whether the district court abused its discretion when it certified the claims of five classes under Fed. R. Civ. P. 23.

Brief Summary: Owners of subsurface gas estates brought five lawsuits against two coalbed methane producers. The suits alleged the producers had not paid royalties owed to plaintiffs. After a federal district court granted the plaintiffs' motions for class certification, the United States Court of Appeals for the Fourth Circuit granted review. Holding that the district court abused its discretion in certifying the classes by materially misapplying the requirements of Rule 23 in multiple ways, the Fourth Circuit vacated the district court's grant of the motions and remanded the case for reconsideration.

Extended Summary: Between June 2010 and April 2011, lead plaintiffs of five separate cases filed various federal complaints against two Virginia coalbed methane gas ("CBM") producers, EQT Production Co. ("EQT") and CNX Gas Co. ("CNX"). Four of the lawsuits alleged that EQT and CNX completely deprived plaintiffs of royalty payments from the production of CBM, and all five suits alleged that EQT and CNX had underpaid royalties.

Producers have captured CBM since the 1970s for use as a commercial energy source. However, issues have persisted regarding the ownership rights to CBM as different individuals often own the subsurface gas and coal mining rights. In 1990, Virginia enacted the Virginia Gas and Oil Act to enable CBM production on adjoining tracts of land and to overcome continuing ownership disputes. Under the Act, producers and alleged gas estate owners enter into lease agreements to facilitate the distribution of royalty payments.

EQT and CNX together operated between 750 and 900 CBM wells in Virginia. The plaintiffs - gas estate owners identified in the defendants' ownership schedules as holding conflicting interests in CBM - sought declaratory judgment that (1) the ownership conflicts that EQT and CNX had identified were illusory; (2) as gas estate owners, they were entitled to the withheld CBM royalties; and (3) any royalties held in escrow or suspended by defendants as a result of the illusory ownership conflicts must be paid. In addition to declaratory judgment relief, plaintiffs sought a complete accounting of the royalties, alleged various tort, property, and contract theories of recovery, and sought punitive damages.

Plaintiffs moved for class certification, and the district judge certified a total of five classes. EQT and CNX appealed the five certification orders to the U.S. Court of Appeals for the Fourth Circuit.

In a consolidated action, the Fourth Circuit first held that the district court failed to rigorously analyze the administrative burden of identifying the classes' members, and improperly lowered those plaintiffs' burden of proof in establishing commonality under Rule 23(a). Next, the Fourth Circuit held that the district court abused its discretion in certifying the class claims alleging EQT's and CNX's underpayment of royalties. Concluding that sympathy alone towards the numerous CBM holders who had not received a penny in royalties or had been underpaid could not justify certification under Rule 23, the Fourth Circuit vacated the district court's grant of plaintiffs' motions for class certification, and remanded the case for reconsideration of the motions consistent with its opinion.

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

Panel: Judges Wilkinson, Keenan, and Diaz

Argument Date: 05/13/2014

Date of Issued Opinion: 08/19/2014

Docket Number: No. 13-414

Decided: Vacated and remanded by published opinion

Case Alert Author: Emily Bolyard

Counsel: ARGUED: Jonathan Todd Blank, MCGUIREWOODS LLP, Charlottesville, Virginia; Michael Willis Smith, CHRISTIAN & BARTON, Richmond, Virginia, for Appellants. Elizabeth Joan Cabraser, LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP, San Francisco, California, for Appellees. ON BRIEF: Stephen M. Hodges, Wade W. Massie, Mark E. Frye, PENN, STUART & ESKRIDGE, Abingdon, Virginia; R. Braxton Hill, IV, CHRISTIAN & BARTON, Richmond, Virginia, for Appellant EQT Production Company. Lisa M. Lorish, Tennille J. Checkovich, John Tracy Walker, IV, MCGUIREWOODS LLP, Charlottesville, Virginia; James R. Creekmore, Blair Nivia Wood, CREEKMORE LAW FIRM PC, Blacksburg, Virginia, for Appellant CNX Gas Company, LLC. Blair M. Gardner, Lee Adair Floyd, JACKSON KELLY PLLC, Charleston, West Virginia; Eric D. Whitesell, GILLESPIE, HART, ALTIZER & WHITESELL, Tazewell, Virginia, for Appellants Buckhorn Coal Company LLLP, Commonwealth Coal Corporation, and Harrison-Wyatt LLC. David S. Stellings, Daniel E. Seltz, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, New York, New York; Jackson S. White, Jr., THE WHITE LAW OFFICE, Abingdon, Virginia, for Appellees.

Author of Opinion: Judge Diaz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/06/2014 01:15 PM     4th Circuit     Comments (0)  

  Wood v. Crane Company - Fourth Circuit
Headline: Asbestos Defendant Headed Back to State Court - Failed to Raise Timely Basis for Federal Jurisdiction

Area of Law: Civil Procedure

Issue Presented: Whether the district court erred when it allowed the plaintiff to amend his complaint to abandon federal claims related to the defendant's defense and remanded the case to state court.

Brief Summary: Former Coast Guard electrician James Joyner was diagnosed with mesothelioma. After his death, Joyner's estate brought state law claims against Crane Company, and other defendants, for allegedly supplying the U.S. Government with asbestos-filled gaskets and valves. Crane removed the case to federal court based on federal officer jurisdiction. Joyner then amended his complaint. He abandoned the valve claim; and requested a remand to state court for trial on the remaining gasket claim. The district court remanded the case. Crane appealed, asserting that all the claims should have remained in federal court. The United States Court of Appeals for the Fourth Circuit affirmed. The Fourth Circuit concluded that Crane failed to timely assert a new basis for federal jurisdiction over the gasket claim within the 30-day time period allotted by statute.

To read the full opinion, please click here

Panel: Judges Diaz, Wynn, and Duncan.

Argument Date: 03/19/2014

Date of Issued Opinion: 08/15/2014

Docket Number: No. 13-1868

Decided: Affirmed

Case Alert Author: Katherine C. Parris

Counsel: Michael James Ross, K&L GATES LLP, Pittsburgh, Pennsylvania, for Appellant. Jacqueline Gagne Badders, RUCKDESCHEL LAW FIRM, LLC, Ellicott City, Maryland, for Appellee. ON BRIEF: Nicholas P. Vari, Syed D. Ali, K&L GATES LLP, Pittsburgh, Pennsylvania; Neil J. MacDonald, MACDONALD LAW GROUP, LLC, Beltsville, Maryland, for Appellant. Jonathan Ruckdeschel, Z. Stephen Horvat, RUCKDESCHEL LAW FIRM, LLC, Ellicott City, Maryland, for Appellee.

Author of Opinion: Judge Diaz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/06/2014 12:42 PM     4th Circuit     Comments (0)  

  Russell v. Absolute Collection Services, Inc. - Fourth Circuit
Headline: You Don't Need to Dispute Debt to File Suit Against "Dunning" Debt Collectors

Area of Law: Consumer Protection

Issue Presented: Whether a debtor is required to dispute her debt prior to filing suit against a debt collector under the Fair Debt Collection Practices Act ("FDCPA").

Brief Summary: "Dunning" is a debt collection practice where debt collectors issue several notices to a debtor requesting payment for overdue bills. Diane Russell was a target of a "dunning" campaign waged by Absolute Collection Services, Inc., for medical services rendered to her husband. Russell notified Absolute Collection that she had already paid the debt directly to the service provider. Despite this notification, Absolute Collection continued to "dun" Russell with more collection calls and letters requesting payment. Absolute Collection also threatened to report Russell to national credit bureaus. The trial court ruled in favor of Russell, and Absolute Collection appealed. Absolute Collection argued that since Russell had not followed the debt verification procedures outlined in the FDCPA, Absolute Collection was permitted to assume the debt was valid and continue its collection attempts.

The U.S. Court of Appeals for the Fourth Circuit held that a debtor can bring suit against a debt collector even if he or she did not follow the debt verification procedures because the language of the Act clearly indicates that disputing a debt is optional and requiring a consumer to undertake such an action would "undermine the FDCPA's protection of unsophisticated debtors, who would have no reason to suspect that they would be prevented from filing suit."

To read the full opinion, please click here

Panel: Judges Diaz, Motz, and Floyd.

Argument Date: 04/11/2014

Date of Issued Opinion: 08/15/2014

Docket Number: No. 12-2357

Decided: Affirmed

Case Alert Author: Jamie Lee

Counsel: Sean T. Partrick, YATES, MCLAMB & WEYHER, LLP, Raleigh, North Carolina, for Appellant. Deepak Gupta, GUPTA BECK PLLC, Washington, D.C., for Appellee. ON BRIEF: Allison J. Becker, Jennifer D. Maldonado, YATES, MCLAMB & WEYHER, LLP, Raleigh, North Carolina, for Appellant. Joanne Faulkner, New Haven, Connecticut; Suzanne R. Begnoche, Chapel Hill, North Carolina, for Appellee.

Author of Opinion: Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 10/06/2014 at 12:43 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/06/2014 12:26 PM     4th Circuit     Comments (0)  

October 2, 2014
  United States v. Trent- Tenth Circuit
Headline: Tenth Circuit Rules Modified Categorical Approach Applies to Oklahoma Conspiracy Conviction

Areas of Law: Criminal Law, Statutory Construction

Issue Presented:

1. Should the modified categorical approach apply to conspiracy convictions to determine whether a prior felony is a "serious drug offense" under the Armed Career Criminal Act (ACCA)?

Brief Summary:

Defendant was convicted of being a felon in possession of a firearm. He raised several issues on appeal, but the court focused primarily on the issue of whether his prior conspiracy conviction is considered a "serious drug offense" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The court held that the modified categorical approach should be applied to his prior conviction under the general Oklahoma conspiracy statute, and that as a result, the conviction qualified as a serious drug offense. The court affirmed his conviction. Judge Seymour concurred in the judgment.

Extended Summary:

Defendant was arrested after being pulled over in a car with two other individuals after officers found a handgun wedged in the back seat, behind an armrest. Defendant was arrested because he had a prior felony conviction. At trial, the main issue was whether the gun was the Defendant's. The jury convicted the Defendant. At sentencing, Defendant argued that the mandatory minimum sentence under the Armed Career Criminal Act (ACCA) did not apply, because his conviction under the Oklahoma general conspiracy statute did not qualify as the third conviction that would give rise to the ACCA enhancement. The district court disagreed and sentenced Defendant to 196 months in prison with five years of supervised release.

The majority first addressed Defendant's challenges for sufficiency of the evidence, improper admission of his prior conviction for being a felon in possession of a firearm, improper jury instructions, and that his sentence was substantively unreasonable. The majority disagreed with the Defendant on each of these arguments, quickly dismissing them before turning to the ACCA issue.

The majority first explained that the ACCA increased the penalty for being a felon in possession of a firearm if the defendant has three prior convictions for a "violent felony" or a "serious drug offense." The Defendant conceded that he had two prior convictions for serious drug offenses under the ACCA but argued that his 2007 conviction under the Oklahoma general conspiracy statute could not be characterized as a serious drug offense. The majority conducted a de novo review on this issue.

The majority noted that the categorical approach is generally used to determine whether a conviction qualifies as a violent felony or a serious drug offense under the ACCA. Under the categorical approach, the court looks only at the elements of the statute under which the Defendant was convicted. In order for the conviction to fall under the ACCA, the court must find that all violations of the statute would qualify, regardless of the actual conduct of the Defendant. The majority stated that under the categorical approach, the defendant's conspiracy conviction would not be considered a serious drug offense, because the statute could be violated in a number of ways that do not involve drugs.

The majority then addressed the applicability of the modified categorical approach, which is to be used when a statute is divisible - meaning that one or more of the elements are set out in the alternative. When using the modified categorical approach, a court may turn to certain documents, including charging documents, plea agreements, plea colloquy transcripts, findings of fact and conclusions of law from bench trials, jury instructions, and verdict forms. In the Tenth Circuit, admissions from defense counsel may also be considered.

The majority then summarized Descamps v. United States, 133 S. Ct. 2276 (2013), in which the defendant was convicted of being a felon in possession of a firearm and had a previous conviction for burglary under a California Statute. The government argued that the burglary conviction was a violent felony, but the defendant argued that the California offense of burglary was broader than generic burglary. Thus, the offense did not qualify as a violent felony under the ACCA because some crimes punishable under the California statute did not fit the generic definition of burglary.

On appeal, the Ninth Circuit in Descamps relied on its en banc decision in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011), and held that the modified categorical approach applied to "missing element" crimes, which are crimes that are "missing an element of the generic crime." In Aguila-Montes, the Ninth Circuit stated that divisible statutes are subject to the modified categorical approach, and then stated why it believed that "missing element" statutes should also be subject to the modified categorical approach, because they are not "meaningfully different" from divisible statutes. A "missing element" statute, according to Aguila-Montes, was merely a list of hypothetical alternatives as opposed to an explicit list. Using Aguila-Montes, the Ninth Circuit held that the inquiry is whether "the factfinder [was] actually required to find the facts satisfying the elements of the generic offense" (emphasis removed). Using this test, the Ninth Circuit found that the defendant had been convicted of generic burglary.

The Supreme Court in Descamps disagreed with the Ninth Circuit and reversed. The Supreme Court held that the modified categorical approach is inapplicable when the statute contains a single, indivisible set of elements. The modified categorical approach applies only when the multiple, alternative elements are present, effectively creating several different crimes within the same statute.

The Supreme Court specified three reasons for adopting an elements-based focus. First, the focus on convictions indicated that Congress intended for the sentencing court to look at the fact there are prior convictions, without looking at the facts underlying those prior convictions. Second, the categorical approach steers clear of any Sixth Amendment issues that could arise from sentencing a defendant without a jury making a finding of fact beyond a reasonable doubt. Third, it is unfair for a court to look at the facts underlying the prior convictions, particularly when litigating collateral facts were irrelevant to guilt under the statute.

The majority then held that a statute which cross-references other statutes is divisible. It noted that in United States v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012), the court had previously held that a statute that cross-references another statute is divisible. Further, the Ninth Circuit in Coronodo v. Holder, 759 F.3d 977 (9th Cir. 2014), found that a California drug statute was divisible because it identified a number od controlled substances by reference to other California drug schedules and statutes. Additionally, the Sixth Circuit, relying on Descamps, held that the Ohio incitement-to-violence statute was divisible because it turned on the violence underlying the incitement. The majority noted that before Descamps was decided, the Third Circuit found that the modified categorical approach applied to the Delaware statute prohibiting body armor because it incorporates by reference "the disjunctive list of all felonies." The Seventh Circuit also decided, pre-Descamps, that an Illinois armed violence statute was divisible.

The majority then addressed pre-Descamps Supreme Court precedent. In James v. United States, 550 U.S. 192 (2007), the Supreme Court considered whether the defendant's previous conviction under a Florida statute for attempted burglary qualified as a violent felony under the ACCA. Although the attempt statute was not divisible on its face, the Supreme Court looked at the burglary statute, because burglary was the specific offense stated in the charging document. Thus, the Court held that the offense was a violent felony. The Court did not mention, however, that the attempt statute was divisible.

Next, the majority analyzed the Oklahoma general conspiracy statute and held that it was divisible because it cross-references all state criminal offenses. The majority stated that the Oklahoma legislature could have elected to write out a list of all Oklahoma crimes within the conspiracy statute, but that doing so would have been redundant. The majority reasoned that although this statute made the list lengthy, it did not make the list hypothetical.

After finding that the statute is divisible, the majority looked at the defendant's conviction in order to determine if his conviction fell within the purview of the ACCA. The amended information in the plea agreement stated that he was pleading guilty to "conspiracy to manufacture a controlled dangerous substance", and specifically mentioned methamphetamines. Further, at his plea colloquy, the defendant stated "I conspired to manufacture methamphetamines."

The majority stated that the conspiracy to manufacture methamphetamines is a serious drug offense under the ACCA. The ACCA offense includes the manufacturing of a controlled substance, and the majority agreed with other circuits that have held that manufacturing also includes attempts and conspiracy.

The majority then had to determine if the statutes cross-referenced in the conspiracy statute were alternative elements. If the specific object of the offense is not an element of the offense, then the modified categorical approach would not apply. The majority stated that simply because alternatives are listed does not mean that they are elements. Several alternatives may be presented to a jury without all jurors having to decide which alternative act was committed. In such a case, the alternative is not an element.

To demonstrate this principle, the majority discussed Schad v. Arizona, 501 U.S. 624 (1991), where the defendant was convicted of first-degree murder and sentenced to death. In Schad, the defendant argued that the jury instructions should have required the jury to agree unanimously on a single theory of first-degree murder. The Supreme Court, however, stated that the Arizona statute did treat the alternative theories as alternative elements. Thus, defendant's conviction was affirmed because the jury simply had to agree unanimously that first-degree murder had been committed.

The majority explained that Descamps did not adopt this view of elements, because that would mean that the court could never use the modified categorical approach without determining if the alternatives are means or elements. The court pointed to Justice Alito's dissent in Descamps to show that it would be difficult to engage in this analysis because the amount of case law regarding means versus elements is staggering. The majority pointed again to Coronado, where the jury did not need to agree on which controlled substance the defendant possessed, but the modified categorical approach was still used. It also cited to California case law demonstrating that the actual drug possessed is not an element of the crime. Regardless, the majority agreed with the Ninth Circuit's holding and stated that the Ninth Circuit approach satisfies the three reasons that the Supreme Court applied the categorical approach in Descamps.

The majority noted that the alternative statutory phrases are not always elements. Further, the charging document will typically reflect the relevant element, which can easily be examined in order to determine whether the defendant committed an ACCA crime.

The majority then conceded that it may be incorrect. Thus, it determined whether the general conspiracy statute is divisible even if it misunderstood the holding of Descamps. The majority held that the jury must unanimously agree on the crime that the conspirators agreed to commit. It noted that some jurisdictions may have determined that the jury does not need to determine the target crime unanimously. It then reviewed Oklahoma state law and Oklahoma Uniform Jury Instructions to make the determination that the jury likely would have to agree on the target offense. The majority agreed with the Fourth Circuit that the court should look to how state courts instruct juries n order to determine the elements of an offense. The majority also found support for its position in Richardson v. United States, 526 U.S. 813 (1999), where the court held that for conviction under the federal continuing-criminal-enterprise statute, the continuing series of violations of a federal drug law was an element of the statute, as opposed to alternative means.

The majority noted that Supreme Court interpretation of federal statutes is not binding, but that it is helpful. Further, it noted that allowing an Oklahoma jury to convict someone without deciding what the object of the conspiracy was, might result in unfairness. The majority concluded that even under the traditional use of the word elements allows for the application of the modified categorical approach.

Defendant argued that the modified categorical approach should not be applied because the parties treated the charge as lying outside the purview of the drug statutes. The state could have charged Defendant under the conspiracy statutes related to drug offenses. The majority, however, stated that regardless, the offense he pleaded guilty to satisfied the requirement of the ACCA.

Judge Seymour concurred in the judgment, noting that he did not join Section II(F)(4) of the opinion, in which the majority explains the meaning of the term "element."

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/12/12-6283.pdf

Panel: Hartz, Seymour, Tymkovich

Date of Issued Opinion: September 25,2014

Docket Number: No. 12-6283

Decided: Defendant's conviction and sentence were affirmed.

Counsel:

Julia C. Summers, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Mark R. Stoneman, Special Assistant United States Attorney, (Sanford C. Coats, United States Attorney, and Robert D. Gifford, II, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 10/02/2014 08:33 PM     10th Circuit     Comments (0)  

  USA v. Harry Katzin et al. - Third Circuit
Headline: Third Circuit holds the good faith exception to the exclusionary rule applies where the FBI used GPS trackers without a warrant before the Supreme Court held that such conduct was a "search" under Fourth Amendment law.

Area of Law: Criminal Procedure - Exclusionary Rule

Issues Presented: Whether the good faith exception to the exclusionary rule applies where FBI agents used GPS tracker to obtain evidence without a warrant and the Supreme Court held that such conduct was a Fourth Amendment "search" over a year later?

Brief Summary: The Third Circuit, en banc, reversed a ruling excluding the use of GPS evidence that led to the arrest and indictment of several people charged with pharmacy burglaries in the greater Philadelphia area. When the FBI agents placed the GPS on the suspect's vehicle, there was no explicit precedent that authorized use of a GPS without a warrant but they did not obtain one. The GPS provided the only evidence of the van's proximity to the pharmacy and, without it, the government's case would fail.

Approximately a year after the warrantless use of the GPS, the Supreme Court decided, in United States v. Jones, 132 S. Ct. 945 (2012), that the use of a GPS to track a suspect's vehicle constitutes a "search" under the Fourth Amendment. The question for the Third Circuit was whether the good faith exception to the exclusionary rule applied to the agents' conduct. The Third Circuit held that the good faith exception did apply because the agents reasonably believed that they did not need a warrant and a well-trained officer would not have known otherwise.

The court reversed the district court, holding that the evidence gathered against the defendants from the GPS should not be suppressed.

Extended Summary: In 2010, the FBI was investigating the burglarizing of several Rite Aid pharmacies in the Philadelphia area. In connection with the investigation, the FBI magnetically attached a battery-operated GPS to the undercarriage of a suspect's vehicle and tracked the vehicle's movement for two days. The vehicle was on public roads for the entire time of surveillance. Information gathered from the GPS led to an arrest and indictment of the suspect and several other people. When the FBI agents placed the GPS on the suspect's vehicle, they were informed by the Assistant United States Attorney that they were not legally required to obtain a warrant. The GPS provided the only evidence of the van's proximity to the Rite Aid and without it the government's case against would fail.
Approximately a year after the warrantless use of GPS, the Supreme Court decided United States v. Jones, 132 S. Ct. 945 (2012). In Jones, the Court held that the use of a GPS to track a suspect's vehicle constitutes a "search" under the Fourth Amendment.

The Third Circuit found that the exclusionary rule should be a last resort when it must be used to deter governmental violations of the Fourth Amendment. Additionally, the court found that it must consider the "substantial social costs" of excluding reliable evidence. With this in mind, it found that the question was whether a reasonably well trained officer would have known that the search was illegal in light of all the circumstances. The court concluded that, at the time of the GPS use, there was binding appellate precedent that was sufficiently analogous to the GPS issue upon which the FBI agents could reasonably have relied. Moreover, the Third Circuit held that the general good faith test applied to the agents because they acted with a good faith belief that the lawfulness of their conduct was objectively reasonable.

The Third Circuit found that all of these circumstances met the good faith exception to the exclusionary rule because "[t]he constellation of circumstances that appeared to authorize their conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a near-unanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA pursuant to a DOJ-wide policy." The Third Circuit found that there would be no deterrence if the evidence was suppressed because of the overwhelming support for the FBI agents' belief that their conduct did not require a warrant.

Judge Greenaway, Jr. dissented and was joined by four other judges. The dissent would have held that the defendants' constitutional rights were violated and no good faith exception should override the exclusionary rule. Finding no neutral authorization for the FBI agents' actions, the dissent asserts that this ruling allows the exclusionary rule to be eroded too far. The dissent emphasized that no then-binding precedent explicitly authorized the warrantless use of the GPS.

Judge Smith also dissented and was joined by four judges. Judge Smith joined Judge Greenaway's dissent and added that the majority's view would allow law enforcement to rely not only on holdings but also on rationales of precedent, leaving the good faith exception with no limiting principle.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/122548p1.pdf

Panel (if known): En Banc

Argument Date: March 19, 2013; Rehearing En Banc Ordered December 12, 2013; Argued En Banc May 28, 2014

Date of Issued Opinion: October 1, 2014

Docket Number: No. 12-2548

Decided: Reversed and Remanded

Case Alert Author: Antoinette Snodgrass

Counsel: Robert A. Zauzmer, Esq., Emily McKillip, Esq., Zane D. Memeger, Esq., and Thomas M. Zaleski, Esq. for the Appellant United States of America; Catherine N. Crump, Esq. for the American Civil Liberties Union; Thomas A. Dreyer, Esq. for the Appellee Harry Katzin; William A. DeStefano, Esq. for Appellee Michael Katzin; Rocco C. Cipparone, Jr., Esq. for Appellee Mark Louis Katzin, Sr.; Brett G. Sweitzer, Esq. for Amicus Appellee Federal Public & Community Defender Organization of the Third Circuit; Benjamin E. Wizner, Esq. for Amicus Appellee American Civil Liberties Union; Sara J. Rose, Esq., Witold J. Walczak, Esq. for Amicus Appellee American Civil Liberties Union Foundation of Pennsylvania; Hanni M. Fakhoury, Esq., Marcia Hoffman, Esq. for Amicus Appellee Electronic Frontier Foundation; Peter Goldberger, Esq. for Appellee National Associate of Criminal Defense Lawyers

Author of Opinion: Judge Van Antwerpen

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 10/02/2014 02:46 PM     3rd Circuit     Comments (0)  

  Urgen v. Holder - Second Circuit
Headline: Second Circuit Holds Asylum Applicant May Prove Nationality through Credibility Testimony.

Area of Law: Immigration

Issue(s) Presented: Whether an applicant for asylum can prove nationality through credibility testimony alone or must provide documentary evidence of nationality.

Brief Summary: Petitioner Urgen applied for asylum and relief under the Convention Against Torture Act, asserting that he is a stateless Tibetan born in Nepal. Finding that Urgen failed to credibly establish his nationality as a stateless Tibetan born in Nepal, an Immigration Judge ("IJ") denied asylum and ordered Urgen removed to Nepal. The Board of Immigration Appeals ("BIA") affirmed, finding that Urgen's documentary evidence failed to establish his Tibetan nationality, necessary for determining his eligibility for asylum. Neither the IJ nor the BIA made a finding as to Urgen's nationality or citizenship. The Second Circuit vacated the BIA's decision, holding that the BIA erroneously required Urgen to establish his nationality through documentary evidence. The Second Circuit remanded the matter to the BIA, instructing the agency to make an explicit determination of Urgen's country of nationality and citizenship, to determine whether he should be removed and, if so, to what country.

The full text of the opinion may be found at: ">http://www.ca2.uscourt.../de.....9/1/hilite/


Extended Summary: Petitioner Urgen applied for asylum in the United States, withholding of removal, and relief under the Convention Against Torture, asserting that he is a stateless Tibetan born in Nepal. His application for asylum asserted that Urgen was born in Nepal to Tibetan parents who fled to Nepal in the 1970s to escape persecution in China, and that neither Urgen nor his parents obtained citizenship in Nepal. The application stated that, years later, having joined the Tibetan Freedom Movement Group and paid contributions to the Tibetan government in exile, Urgen was severely beaten by Nepalese Maoists, was forced to relocate his family, and was arrested by Nepalese police for wearing anti-Chinese clothing in Nepal. The application further asserted that upon learning that Urgen did not have legal status, the police threatened to deport him to China and Urgen fled to the United States using, what he claimed was a fraudulent Nepalese passport and a United States worker's visa obtained for him by his father.

Urgen's asylum application, supported by the passport, visa, a Tibetan identity certificate, various school records, and a letter from his parents, was referred to the Immigration Court. He was placed in removal proceedings through service of a Notice to Appear that asserted that he was a native and citizen of an unknown country and was removable under the Immigration and Nationality Act ("INA") as an alien who entered the United States without a valid immigrant visa. The Immigration Judge ("IJ") ordered Urgen removed to Nepal, finding that Urgen had failed to establish that he is a stateless Tibetan born in Nepal. In so ruling, the IJ noted that aspects of his account were implausible and noted inconsistencies in Urgen's testimony about his name as compared to the name listed on his school papers. She further found that his documentary evidence did not support his identity as a stateless Tibetan, because the Tibetan certificate and letters were inadequate to establish nationality, and the passport, which could not be wholly verified as valid or fraudulent, was either valid, making him a Nepalese national or, if fraudulent, inconclusive as to his nationality.

Urgen's subsequent appeal to the Board of Immigration Appeals ("BIA") was dismissed. The BIA found that Urgen had failed to meet the threshold burden of establishing his identity and nationality, needed to obtain a determination of asylum eligibility. The BIA concluded that Urgen's documentary evidence "at best ... created a question about his name, nationality, and citizenship."

The Second Circuit agreed with the BIA that "'nationality, or lack of nationality, is a threshold question in determining eligibility for asylum, but held that an applicant can meet this threshold on credibility testimony alone. The Court stated that Urgen's country of nationality and originality was fundamental to analyzing whether he had a "well-founded fear of prosecution" and to determining where he could be removed. The Second Circuit therefore remanded the matter, instructing the BIA to review the IJ's credibility finding and to make an explicit determination with respect to Urgen's country of nationality and citizenship.

The full text of the opinion may be found at: ">http://www.ca2.uscourt.../de.....9/1/hilite/

Panel: Circuit Judges Winter, Parker, and Hall

Argument Date: 04/23/2014

Date of Issued Opinion: 10/02/2014

Docket Number: 12-809

Decided: Vacated and Remanded

Case Alert Author:
Sam Kopf

Counsel: Urgen, Pro Se, for Petitioner; Yanal H. Yousef, Office of Immigration Litigation, Civil Division (Stuart F. Delery, Principal Deputy Assistant Attorney General, Jamie M. Dowd, Senior Litigation Counsel, on the brief), United States Department of Justice, for Respondent

Author of Opinion: Per Curiam

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 10/02/2014 01:22 PM     2nd Circuit     Comments (0)  

  Castellanos v. Small
Headline: Ninth Circuit Reverses Denial of Habeas Relief after Finding Prosecutor's Purposeful Discrimination during Voir Dire.

Areas of Law: Criminal Law & Procedure, Constitutional Law

Issue Presented: Whether any purposeful discrimination had occurred during voir dire, possibly violating Petitioner-Appellant's constitutional rights under the Fourteenth Amendment.

Brief Summary: Petitioner-Appellant, Anthony Castellanos ("Castellanos") appealed from the district court's denial of his application for Habeas relief. The Ninth Circuit granted collateral review to determine whether Castellanos' constitutional rights under the Fourteenth Amendment were violated as a result of purposeful discrimination that may have occurred during voir dire.

The Court explained that under Batson v. Kentucky and People v. Wheeler, a defendant must first present a prima facie showing of purposeful discrimination. Then, the prosecution must offer a race-neutral justification so that the court may weigh the persuasiveness of the prosecution's reasons in light of the evidence.

The Court then assessed the reasonableness of the district court's factual determinations and conducted a formal comparative juror analysis using limited evidence presented only in the state court proceeding. Describing the prosecutor's reasons for striking particular venirepersons as pretextual, the Court held that the prosecution failed to meet its burden to make a race-neutral justification.

The Court concluded that purposeful discrimination during the voir dire examination had occurred, and that Castellanos' constitutional rights under the Fourteenth Amendment were violated. Thus, the Court remanded the case with instructions to grant Castellanos' application for Habeas relief.

Extended Summary:
Castellanos was 17 years old when he pointed a gun at 12-year-old Nicky and shot him in the head. Having tried to recruit Nicky and 11-year-old Joey to join his gang, Castellanos was charged in Los Angeles County Superior Court with murder, assault with a firearm, and street gang solicitation. Castellanos pleaded not guilty to all charges and proceeded to a jury trial.

During voir dire, twenty-nine venirepersons were questioned. Twelve venirepersons occupied the main jury box at any given time, and as a new venireperson entered the jury box, another was excused. At the outset, at least five of the twelve venirepersons seated in the main jury box were Hispanic. The prosecutor used six peremptory strikes, four of which were against the Hispanic venirepersons, thereby prompting defense counsel to make a Batson/Wheeler motion ("Batson motion").

The prosecution reminded the court that it had to find a prima facie showing of discrimination. The court responded, "Well, there are four Hispanics excused." The prosecution explained it had excused those venirepersons, not for being Hispanic, but because they had friends in gangs or had no children. Accordingly, the court denied the motion.

The empaneled jury, consisting of seven Hispanics, four Caucasians, and one Asian, convicted Castellanos of second-degree murder, assault with a firearm, and street gang solicitation. Castellanos was sentenced to twenty-five years to life in state prison.

On appeal, Castellanos contended that the trial court erred in denying his Batson motion. The Court of Appeal affirmed the judgment of the trial court, citing People v. Trevino, and noting that "[t]he trial court's determination is entitled to considerable deference because of the court's knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques and judicial experience." The California Supreme Court denied Castellanos' petition for review.

Upon the district court's receiving Castellanos' application for habeas relief, the magistrate judge issued an order stating that the state court's decision was contrary to clearly established federal law, but that after reviewing the parties' pleadings, the prosecutor's declaration, DMV photographs, and the totality of the circumstances, the prosecutor had not acted with purposeful discrimination. The district court accepted these conclusions and denied Castellanos' application for habeas relief.

Claiming his federal constitutional rights under the Fourteenth Amendment pursuant to Batson v. Kentucky were violated, Castellanos again appealed. The Ninth Circuit granted review de novo, first maintaining that the Antiterrorism Effective Death Penalty Act limited such relief unless the state court proceedings either resulted in a decision contrary to established Federal law or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.

In its analysis, the Court disagreed with the district court's conclusion that the California Court of Appeal incorrectly applied a higher standard of proof with respect to Castellanos' Batson motion, in direct contradiction with established federal law. Furthermore, the Court also rejected the district court's determination of the factual evidence that the prosecutor had not acted with purposeful discrimination.

The Court ruled that though the California Court of Appeal cited to a case superseded by Johnson v. California, which lowered a movant's burden of proof to a mere inference, the state court cited to that case for a proposition distinct from that which was superseded by Johnson. The Court, therefore, established that the state court's decision did not contradict the defendant's burden of proof established in Johnson.

Next, the Court evaluated the reasonableness of the district court's factual determinations and conducted a formal comparative juror analysis after noting that the trial court neglected to conduct one. The Court emphasized that Venirewoman 4968, who was dismissed by the prosecution for not having children, stated that she did have children. This fact, noted by the Court, was acknowledged by the prosecution when it asked about the occupations of her adult children. Consequently, the Court asserted that this direct contradiction undermined the prosecutor's credibility. Moreover, the Court listed other venirepersons who had no adult children but were permitted to serve on the jury, as well as one empaneled juror who did not even answer whether he had any children. The Court also criticized the prosecutor's question of whether the venirepersons had any adult children as an "odd way" of identifying whether the venirepersons had experience with young children. Lastly, the Court noted that the facts that there were seven Hispanics on the empaneled jury and that the prosecutor left eight of his peremptory strikes unused were not dispositive of a nondiscriminatory motive.

Describing the prosecutor's reasons for striking particular venirepersons as pretextual, the Court held that the prosecution failed to meet its burden to make a race-neutral justification. The Court concluded that purposeful discrimination during voir dire had occurred, and that Castellanos' constitutional rights under the Fourteenth Amendment were violated. Thus, the Court remanded the case with instructions to grant Castellanos' application for Habeas relief.

For the full opinion:
http://cdn.ca9.uscourts.gov/da...14/09/09/12-55783.pdf

Panel: Stephen Reinhardt, John T. Noonan, and Mary H. Murguia, Circuit Judges.

Date of Issued Opinion: September 9, 2014

Docket Number: 12-55783

Decided: Reversed and remanded.

Case Alert Author: Daniel S. Seu

Counsel: Gia Kim (argued), Deputy Federal Public Defender, Sean K. Kennedy, Federal Public Defender, Los Angeles, California for Petitioner-Appellant; Scott Taryle (argued), Supervising Deputy Attorney General, Timothy M. Weiner and Stephanie C. Brenan, Deputy Attorneys General, Lance E. Winters, Senior Assistant Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Kamala D. Harris, Attorney General, Los Angeles, California, for Defendant-Appellee.

Author of Opinion: M. Murguia, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 10/02/2014 12:10 PM     9th Circuit     Comments (0)  

  Arizona Dream Act Coalition v. Brewer
Headline: 9th Cir. Reverses the denial of a motion for prelim. Injun. against the AZ Dept. of Transportation in an action challenging a policy of using employment documents as proof of Deferred Action for Childhood Arrivals authorized presence in the U.S.

Area of Law: Constitutional Law, Civil Rights

Issue(s) Presented: Is a state policy to deny recipients of Deferred Action for Childhood Arrivals ("DACA") preempted by the federal DACA program?

Under the Equal Protection Clause of the Fourteenth Amendment to United States Constitution is a policy denying recipients of driver's licenses based on receipt of prosecutorial discretion pursuant to DACA rationally related to a legitimate government interest?

Under Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental, Inc. is a state's denial of driver's licenses based on a person's receipt of prosecutorial discretion under DACA likely to cause irreparable harm to DACA recipients?

Brief Summary: DACA is a federal program granting recipients a renewable two-year period in which the Department of Homeland Security ("DHS") considers the recipient not to be unlawfully present in the United States but grants no formal immigration status.

The Arizona Department of Transportation initiated a policy prohibiting recipients of DACA from using Employment Authorization Documents to obtain a driver's license.

First the Court found that the Plaintiffs were seeking a prohibitory injunction based on maintaining the status quo in preventing the Arizona Department of Transportation from changing the law to deny DACA recipients' driver's licenses.

Next the Court found that the Plaintiff's conflict-preemption theory was plausible but declined to decide whether it was likely to succeed on the merits, opting to analyze the Plaintiff's Equal Protection claim instead.

Without determining the standard of scrutiny, the Court held that the Arizona Department of Transportation policy would fail under Rational Basis review because the decision to treat DACA recipients differently from other noncitizen Employment Authorization Document holders was not pursuant to a legitimate government interest.

The Court also held that Plaintiffs were likely to suffer irreparable harm in the absence of a preliminary injunction. The Court reasoned that the Plaintiffs lack of driver's licenses limited their career opportunities and caused them irreparable harm, especially in light of their young age and fragile socioeconomic position in their early careers.

The Court reversed and remanded with instructions to enter a preliminary injunction prohibiting Defendants from enforcing any policy allowing the Arizona Department of Transportation to refuse to accept Plaintiffs' Employment Authorization Documents.

Concurrence: Circuit Judge Christen joined in the majority opinion and concurred as to the majority's discussion regarding Plaintiffs' preemption claim asserting that Plaintiffs had demonstrated a likelihood of success on the merits because Arizona crafted its own definition of authorized presence thereby creating a new immigration classification and infringing on the exclusive domain of the federal government.

Extended Summary: Preliminarily, the Court set forth the pertinent parts of DACA and the Arizona law.

DACA is a federal program granting recipients a renewable two-year period in which the Department of Homeland Security ("DHS") considers the recipient not to be unlawfully present in the United States but grants no formal immigration status.

To qualify, the applicant must have entered the United States under the age of sixteen and must be under thirty-one years old as of June 15, 2012. The applicant must have continuously resided in the United States for at least the previous five years. The applicant must have either graduated from high school, obtained a GED, or have been honorably discharged from the United States Armed Forces or the Coast Guard, or must be currently enrolled in school. Additionally, the applicant must not pose a threat to public safety and anyone convicted of multiple misdemeanors, a single significant misdemeanor, or any felony is ineligible.

Arizona law prohibits the Arizona Department of Transportation from issuing driver's licenses to anyone who fails to "submit proof of presence in the United States under federal law." Ariz. Rev. Stat. Ann. § 28-3153(D). Following the Arizona Governor's Executive Order 2012-06, the Arizona Department of Transportation's Policy 16.1.2 ceased to permit federal Employment Authorization Documents to establish lawful presence for the purpose of the Arizona statute. While the Plaintiffs' appeal was pending, Defendants revised the policy to accept other federal Employment Authorization Documents except those issued under DACA.

First, the Court noted the difference between a mandatory injunction and a prohibitory injunction. The Court stated that the Plaintiffs sought to maintain the status quo regarding the Arizona Department of Transportation license eligibility standards, in general. The Plaintiffs were therefore not subject to a heightened burden of proof in seeking the injunction.

Next, the Court analyzed the likelihood of Plaintiffs' success on the merits and discussed preemption and equal protection.

The Court stated that Plaintiff's conflict-preemption theory was plausible in that federal law can preempt state law when state law obstructs the accomplishment and execution of the full purposes and objectives of Congress.

The Court held that denial of driver's licenses to DACA recipients is sufficiently linked to their ability to work, and therefore the Arizona policy would be conflict-preempted. The Court reasoned that DACA was created pursuant to the Executive Branch's broad, congressionally granted discretion regarding work authorization for noncitizens. Because DACA recipients are required to apply for employment authorization to remain productive members of society, and because the ability to drive is a virtual necessity for people who want to work in Arizona, denying driver's licenses to DACA recipients would frustrate the objectives and purposes of Congress.

The Court did not consider the likelihood of Plaintiffs' success on the merits under the preemption theory, nor did the Court address all of Plaintiff's preemption arguments, but analyzed the likelihood of success under the equal protection claim instead.

Under the Equal Protection Clause, the Court first identified that under Arizona's revised policy, DACA recipients were targeted for disparate treatment as compared to other noncitizens holding Employment Authorization Documents.

Without determining the standard of scrutiny, the Court held that the policy is likely to fail even under rational basis review. The Court rejected Defendants' argument that other noncitizens holding Employment Authorization Documents were on a path to citizenship because not all such noncitizens' applications for adjustment of status or cancellation of removal would be granted.

The Court reasoned that because federal law did not distinguish lawful presence between DACA recipients and other noncitizens with Employment Authorization Documents, there was no basis for treating DACA recipients differently.

The Court then considered and rejected four more justifications proposed by Defendants.

First, the Court rejected Defendants unsubstantiated contention that Arizona would face legal liability for issuing driver's licenses to unauthorized immigrants, especially in light of the fact that not a single instance of such liability exposure was identified.

Second, the Court rejected Defendants argument that possession of a driver's license might allow DACA recipients to access benefits to which they are not entitled, stating that there was no basis to believe a driver's license alone could establish eligibility for such benefits.

Third, the Court rejected Defendants' argument that in the event DACA was cancelled, Arizona would have to revoke driver's licenses issued to DACA recipients, stating that other noncitizens holding Employment Authorization Documents were at a far greater risk of having applications for adjustment of status or cancellation of removal denied.

Fourth, for the same reasoning it used in rejecting Defendant's third argument, the Court rejected Defendant's argument that in the event DACA was cancelled, persons injured in car accidents would be left with no financial recourse when the DACA recipients would be quickly removed.

The Court therefore held that the Plaintiffs demonstrated a likelihood of success on the merits of the equal protection claim.

The Court also held that Plaintiffs were likely to suffer irreparable harm in the absence of a preliminary injunction. The Court reasoned that the Plaintiffs lack of driver's licenses limited their career opportunities and caused them irreparable harm, especially in light of their young age and fragile socioeconomic position in their early careers.

Lastly, in addressing other factors regarding an injunction, the Court identified that it would not be equitable or in the public's interest to allow a state to violate federal law, especially when there are no adequate remedies available.

The Court reversed and remanded with instructions to enter a preliminary injunction prohibiting Defendants from enforcing any policy allowing the Arizona Department of Transportation to refuse to accept Plaintiffs' Employment Authorization Documents.

Concurrence:

Circuit Judge Christen joined in the majority opinion and concurred as to the majority's discussion regarding Plaintiffs' preemption claim asserting that Plaintiffs had demonstrated a likelihood of success on the merits because Arizona crafted its own definition of authorized presence thereby creating a new immigration classification and infringing on the exclusive domain of the federal government.

The concurrence stated that in distinguishing DACA recipients from other noncitizens holding Employment Authorization Documents, Defendants' usage of "a path to legal status" in deeming what individuals are authorized to be present in the United States is an impermissible regulation of immigration status.

The concurrence reasoned that based on the comprehensiveness of the Immigration & Naturalization Act, the entire regulatory field of immigration is so pervasive that Congress left no room for the States to supplement it.

For the full opinion: http://cdn.ca9.uscourts.gov/da.../13-16248_opinion.pdf

Panel: Harry Pregerson, Marsha S. Berzon, and Morgan Christen, Circuit Judges.

Date of Issued Opinion: July 7, 2014

Docket Number: 13-16248

Decided: Reversed.

Case Alert Author: Brandon Powell

Counsel: Victor Viramontes (argued) and Jorge M. Castillo, Mexican American Legal Defense and Educational Fund, Los Angeles, California; Jennifer Chang Newell, Cecillia D. Wang, Araceli Martínez, Michael Tan, and R. Orion Danjuma, American Civil Liberties Union Foundation Immigrants' Rights Project, San Francisco, California; Linton Joaquin, Karen C. Tumlin, Shiu-Ming Cheer, Nora A. Preciado, and Nicholás Espíritu, National Immigration Law Center, Los Angeles, California; Daniel J. Pochoda, Kelly J. Flood, and James Duff Lyall,
ACLU Foundation of Arizona, Phoenix, Arizona, for Plaintiffs-Appellants.

Author of Opinion: Pregerson, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 10/02/2014 12:07 PM     9th Circuit     Comments (0)  

  Boris Y. Levitt v. Yelp!
Headline: 9th Cir. Affirms the Dismissal of an Action Alleging that Yelp! Inc. Extorted Advertising Payments by Manipulating User Reviews in Violation of California State Law.

Area of Law: Civil Extortion; California's Unfair Competition Law

Issue(s) Presented: Whether, under California law, the small business owners in this case stated a claim on which relief can be granted.

Brief Summary: Appellees, a class of small business owners, appealed the district court's dismissal of their lawsuit against Yelp for their failure to state a claim. The Ninth Circuit reviewed the dismissal de novo to determine if the facts and legal theories set forth by the appellees were or were not sufficient to state a claim against Yelp.

Under California's Unfair Competition Law, the litigants must prove the act was wrongful. Thus, the Court first defined the term "wrongful" as it applies in the extortion context to mean the extortionist must have no lawful claim to the property in question. This effectively creates a claim-of-right defense that applies to threats of economic harm as exists in this case.

The specific allegations in this case revolve around the accusation that Yelp manipulated user reviews and created negative user reviews in order to pressure small business owners into paying a fee for additional positive advertising.

The Court emphasized that the business owners failed to allege and state facts showing Yelp directly threatened economic harm if the business owners declined to pay for the additional advertising. Further, the court emphasized that none of the business owners who are party to this lawsuit had an existing right to have positive reviews on their Yelp pages. Thus, Yelp was not acting "wrongful" when they removed positive reviews because Yelp is allowed to maintain and control their website in whatever manner they so chose.

The primary concern of the Court is the lack of specific facts establishing a plausible claim for any of these business owners. The arrangement of the reviews and potentially fabricated reviews may be conduct that would be seen as "wrongful" for economic extortion, however, based on the facts alleged in the third amended complaint, the Court was not convinced of the plausibility of these claims.

The Court also found the small business owners failed with respect to the "unfair" prong of the UCL because their allegations against Yelp were too general in nature. The standard under this portion of the rule requires that the conduct be in violation of an existing anti-trust law or significantly threaten or harm competition. Thus, the facts of this case did not support a finding that Yelp's conduct rose to the level required under this prong.

The Ninth Circuit concluded the alleged manipulation and creation of user reviews by Yelp, if true, would not be "wrongful" under the extortion statute, and secondly, the business owners did not allege sufficient facts or legal theories to establish a plausible claim against Yelp - and, thus, affirmed the district court's dismissal of plaintiffs' claims against Yelp for failure to state a claim.

Extended Summary: Several small business owners (the appellees), namely Boris Levitt, Cats and Dogs Animal Hospital, Inc., John Mercurio, and Dr. Tray Chan claimed Yelp extorted or attempted to extort advertising payments from them by threatening to either alter consumer reviews or create negative reviews. The claim was brought by the small business owners as a class-action, alleging Yelp violated California's Unfair Competition Law ("UCL"), California Business & Professions Code 17200 et seq., committing civil extortion, and attempting to commit civil extortion.

First, the Court established the type of service Yelp provides giving background to the circumstances involved in this lawsuit. Yelp is a company that runs a forum for individuals to rate and review businesses. This results in an advertising service for businesses, specifically those that receive high ratings and positive reviews. The author of the particular review and Yelp both are able to remove reviews. Yelp has a filtering system that is designed to protect the businesses along with the public from fraudulent reviews potentially planted by a competitor or an individual with malicious intentions. The filtering system is automated and therefore without human bias. For a monthly fee, Yelp also offers additional advertising opportunities for businesses, i.e. display advertisements on the Yelp webpage, additional photos, or promotion of a positive review to the top of the particular business' page.

The Court begins by setting forth California's Unfair Competition Law (herein after referred to as "UCL"), which "prohibits any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." The UCL makes already unlawful conduct independently actionable in a business context. Here, the unlawful conduct involved is Yelp's alleged extortion and attempted extortion.

The Court moves on to determine if the small business owners did adequately state a claim for extortion. Beginning with the definition of "wrongful" and whether the claimed conduct meets this requirement. Under The Hobbs Act, extortion is "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." In United States v. Emmons, the court established the term "wrongful" to be a limitation on the types of instances to which the statute applies. The limitation requires that the extortionist have no lawful claim to the property in question. Emmons further provides it would not be wrongful "to use force to achieve legitimate . . . ends." This is effectively a claim-of-right defense for the extortionist. Even more specifically, the claim-of-right defense is applicable in situations where the "extortion involve[es] threats of economic harm."

After surveying the applicable case law, the Court concluded an individual is required, under federal and California law, to show one of the following circumstances in order to state a claim of economic extortion: (1) he or she "had a pre-existing right to be free from the threatened harm, or (2) that the defendant had no right to seek payment for the service offered." The policy is to promote business dealings and not turn widely accepted "hard bargaining" into extortion.

The Court emphasized that the business owners failed to allege and state facts showing Yelp directly threatened economic harm if the business owners declined to pay for the additional advertising. The Court noted that the absence of a direct threat is not dispositive, but the small business owners had the burden of alleging facts sufficient to support an inference of such a threat.

Next, the court breaks down the various allegations set forth in the third amended complaint by each of the small businesses.

Beginning first with Chan, the court noted that her only complaint was with respect to the removal of positive Yelp reviews from her business' page. However, the court plainly states that Ms. Chan did not have a pre-existing right to have positive reviews on her Yelp page. Thus, the benefits of the positive reviews are not something she is entitled to, but rather a benefit made possible and maintained by Yelp. The court concludes Chan failed to state a claim for economic extortion since she was unable to show Yelp's removing some of her good reviews to be "wrongful" conduct.

The Court next evaluated both Levitt and Mercurio's claims. The Court started out by defeating their claim regarding the removal of positive reviews under the same reasoning as discussed above with respect to Chan.

The Court then moved on to discuss the allegations made by Cats and Dogs and Mercurio that Yelp not only removed positive reviews but re-posted negative reviews and moved them to the top of the individual business's Yelp pages. The Court concludes Yelp is legally allowed to charge for their advertising services, and any threat of monetary harm constitutes the widely accepted business tactic of "hard bargaining."

The same business owners, Cats and Dogs and Mercurio, are the only two litigants to allege Yelp created and fabricated new negative reviews as another form of extortion. The Court ultimately determines that under the plausibility standard, the business owners failed to allege sufficient facts to support their claim that Yelp created and posted negative reviews on their website.

Lastly the Court examined the "unfair" prong of the UCL, which requires that "the alleged unfairness [ ] 'be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition." The allegation under this prong is not that Yelp is in competition with the small business owners, but Yelp's actions unfairly injure the small business owners to the benefit of competitors who too have Yelp pages. The Court concluded this allegation is to general to meet the requirement that Yelp's actions must rise to the level of a violation of an antitrust law "or otherwise significantly threaten[ ] or harm[ ] competition."

Based on the above discussion, the Ninth Circuit concluded the alleged manipulation of user reviews by Yelp, if true, would not be "wrongful" under the extortion statute, and secondly, the business owners did not allege sufficient facts or legal theories to establish a plausible claim against Yelp - and, thus, affirmed the district court's dismissal of plaintiffs' claims against Yelp for failure to state a claim.

For the full opinion: http://cdn.ca9.uscourts.gov/da...014/09/02/11-17676.pdf

Panel: Richard A. Paez, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.

Date of Issued Opinion: September 2, 2014

Docket Number: 11-17676

Decided: Affirmed.

Case Alert Author: Kaitlyn E. Daley

Counsel: Lawrence Dale Murray (argued), John Henning III, and Robert C. Strickland, Murray & Associates, San Francisco, California, for Plaintiffs-Appellants; S. Ashlie Beringer (argued) and Molly Cutler, Gibson Dunn & Crutcher, Palo Alto, California; Gail Ellen Lees, Gibson Dunn & Crutcher, Los Angeles, California; and Aaron Schur, Yelp Inc., San Francisco, California, for Defendant-Appellee.

Author of Opinion: M. Berzon, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 10/02/2014 11:59 AM     9th Circuit     Comments (0)  

September 29, 2014
  Equal Employment Opportunity Commission v. Port Authority of N.Y. and N.J.
Headline: Second Circuit Affirms Dismissal of Equal Pay Act Case Against EEOC, Clarifying the Pleading Standard for Employment Discrimination Claims

Area of Law: Employment Law

Issue(s) Presented: Whether a claim under the Equal Pay Act is sufficiently pled without setting forth specific facts regarding job duties in the comparison jobs.

Brief Summary: The EEOC filed a complaint under the Equal Pay Act of 1963 against the Port Authority of N.Y. and N.J., alleging that female and male attorneys working there received unequal pay for performing equal work. The district court dismissed the complaint, holding that the EEOC had not alleged any facts supporting a comparison of actual attorney job duties, but had relied on broad facts about the comparison female and male attorneys, suggesting that they all had the same degree and they were all performing equal work. The U.S. Court of Appeals for the Second Circuit affirmed. The court explained that under the Supreme Court's recent decisions regarding pleading standards, a complaint must allege enough facts to state a claim that is plausible on its face. Here, the EEOC - despite having conducted a three-year investigation prior to filing suit - had not alleged "a single nonconclusory fact supporting its assertion that the claimants' and comparators' jobs required 'substantially equal' skill and effort," dooming its complaint.
The full text of the opinion may be found at http://www.ca2.uscourts.gov/de...9987c68840a/1/hilite/

Extended Summary: After a discrimination claim filed by a female attorney in the Port Authority of New York and New Jersey's law department, the Equal Employment Opportunity Commission ("EEOC") began an investigation into the Port Authority's pay practices. After three years, the EEOC filed a complaint against the Port Authority, asserting that the Port Authority paid its female and male nonsupervisory attorneys unequal wages for equal work, in violation of the Equal Pay Act of 1963. The complaint charged that nonsupervisory attorneys all shared the same job code, the same amount of required effort and skill, and the same working conditions. Despite this, female attorneys were paid less than male attorneys.
The district court, skeptical that the EEOC had adequately pled a claim, ordered the EEOC to answer Port Authority's interrogatories on the issue. In answering, the EEOC presented a chart on fourteen female nonsupervisory claimants and their comparators, detailing dates of bar admission, dates of service with the Port Authority, salaries, and divisions. The district court found this chart to be superficially random at best, and the EEOC position that "an attorney is an attorney" did not give rise to a reasonable inference that the attorneys' jobs required substantially equal work. The district court thus granted judgment in favor of the Port Authority.

On review, the Second Circuit noted the unsettled pleading standard for discrimination claims in the Circuit. In Swierkiewicz v. Sorema (2002), the Supreme Court held that an employment discrimination complaint need not set forth "specific facts establishing a prima facie case of discrimination" to survive a motion to dismiss. However, The Supreme Court's decisions in Twombly and Iqbal later clarified the proper Rule 8 standard that a complaint had to allege "enough facts to state a claim to relief that is plausible on its face." The Second Circuit concluded that Swierkiewicz is still good law in the sense that discrimination complaints need not allege facts establishing each element of a prima facie discrimination claim. However, the baseline Twombly standard still applies: enough nonconclusory facts must be alleged to push the claim from conceivable to plausible.

With that standard clarified, the Second Circuit affirmed the District Court's decision. The court agreed with the District Court that broad generalizations drawn from job titles, classifications, or divisions, and conclusory allegations of sex discrimination were not enough to bring a successful EPA claim which depends on comparison of actual job content. As pled, the EEOC complaint only suggested the possibility - rather than the plausibility - of an EPA violation.

Panel: Circuit Judges Livingston and Droney; District Judge Chen, sitting by designation.

Argument Date: 05/27/2014

Argument Location: New York

Date of Issued Opinion: 09/29/2014

Docket Number: No. 13-2705-cv

Decided: Affirmed

Case Alert Author: Justin J. Fung

Counsel: Julie L. Gantz (P. David Lopez, Lorraine C. Davis, and Daniel T. Vail on the brief), Equal Employment Opportunity Commission, Washington D.C., for Plaintiff-appellant.

Rosemary Alito (George Peter Barbatsuly on the brief), K&L Gates LLP, Newark, New Jersey, for Defendant-appellee.

Author of Opinion: Judge Livingston

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 09/29/2014 08:39 PM     2nd Circuit     Comments (0)  

September 26, 2014
  McBride v. Estis Well Service, L.L.C. - Fifth Circuit
Headline: Fifth Circuit Rules That Punitive Damages Are Not Available to Seamen or Their Survivors Under General Maritime Law or the Jones Act.

Area of Law: Maritime Law; Jones Act.

Issue Presented: Whether punitive damages are available under the Jones Act or general maritime law to injured seamen or their survivors.

Brief Summary: These consolidated cases arose out of an accident aboard Estis Rig 23, a barge supporting a truck-mounted drilling rig operating in Bayou Sorrell, Louisiana. The truck toppled over, and one crewmember was killed and three others were injured. At the time of the incident, Estis Well Service, L.L.C. (Estis) owned and operated Rig 23 and employed the Plaintiff crewmembers. The Plaintiffs filed suit in the U.S. District Court for the Western District of Louisiana against Estis, stating causes of action for unseaworthiness under general maritime law and negligence under the Jones Act and seeking compensatory as well as punitive damages. Estis moved to dismiss the claims for punitive damages, arguing that punitive damages are not available as a matter of law where liability is based on unseaworthiness or Jones Act negligence. The District Court granted the motion, entered judgment dismissing all claims for punitive damages, and granted Plaintiffs' motion to certify the judgment for immediate appeal to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit panel concluded that punitive damages were available. The Fifth Circuit then granted rehearing en banc and concluded that the Supreme Court's decision in Miles v. Apex Marine Corp., which holds that the Jones Act limits a seaman's recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness, is controlling. Because punitive damages are non-pecuniary losses, punitive damages may not be recovered in this case.

Extended Summary: These consolidated cases arose out of an accident aboard Estis Rig 23, a barge supporting a truck-mounted drilling rig operating in Bayou Sorrell, a navigable waterway in Louisiana. The truck toppled over, and one crewmember was fatally pinned between the derrick and mud tank, and three others suffered injuries. At the time of the incident, Estis Well Service, L.L.C. (Estis) owned and operated Rig 23 and employed the Plaintiff crewmembers.

The Plaintiffs filed suit in the U.S. District Court for the Western District of Louisiana against Estis, stating causes of action for unseaworthiness under general maritime law and negligence under the Jones Act and seeking compensatory as well as punitive damages under both claims. Estis moved to dismiss the claims for punitive damages, arguing that punitive damages are not available as a matter of law where liability is based on unseaworthiness or Jones Act negligence. The District Court granted the motion, entered judgment dismissing all claims for punitive damages, and granted Plaintiffs' motion to certify the judgment for immediate appeal to the U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit panel concluded that the Supreme Court's recent opinion in Atlantic Sounding Co., Inc. v. Townsend (2009) controlled this case and that the remedy of punitive damages are available to injured seamen and the survivors of deceased seamen. The Fifth Circuit granted rehearing en banc and, on rehearing, affirmed the District Court. The Fifth Circuit concluded that the Supreme Court's decision in Miles v. Apex Marine Corp. (1990), which holds that the Jones Act limits a seaman's recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness, is controlling. The Supreme Court, in Townsend, did not overrule Miles. Rather, it took pains to distinguish maintenance and cure cases from unseaworthiness under general maritime law and negligence under the Jones Act, and it confirmed that the reasoning of Miles remains sound. Because punitive damages are non-pecuniary losses, punitive damages may not be recovered in this case.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/12/12-30714-CV2.pdf.

Panel: En Banc

Argument Date: 5/14/2014

Date of Issued Opinion: 9/25/2014

Docket Number: No. 12-30714

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Brian Colomb, Domengeaux, Wright, Roy & Edwards, for Plaintiff-Appellant McBride; Elwood Stevens, Domengeaux, Wright, Roy & Edwards, for Plaintiff-Appellant Suire; Nicholas Blanda, Anderson & Dozier, for Plaintiff-Appellant Touchet; Alan Breaud, Breaud & Meyers, A.P.L.C., for Defendant-Appellee Estis Well Service, L.L.C.

Author of Opinion: Circuit Judge Davis (Concurrence by Circuit Judge Clement, Concurrence by Circuit Judge Haynes, Dissent by Circuit Judge Higginson, Dissent by Circuit Judge Graves)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 09/26/2014 09:03 PM     5th Circuit     Comments (0)  

September 22, 2014
  United States v. Brune- Tenth Circuit
Case Name: United States v. Brune - Tenth Circuit

Headline: Tenth Circuit Holds Registration Requirement of SORNA is constitutional under Necessary and Proper Clause, and that the statute criminalizing the possession of child pornography, 18 U.S.C. 2252(A)(a)(5)(B), is constitutional under the First Amendment

Areas of Law: Criminal Law, Constitutional Law

Issues Presented:

1. Does the registration requirement of the Sex Offender Registration and Notification Act ("SORNA") violate the Necessary and Proper Clause of the United States Constitution?

2. Does 18 U.S.C. § 2252(A)(a)(5)(B) violate the First Amendment for being overbroad?

Brief Summary:

Defendant challenged his convictions for failure to register as a sex offender under the Sex Offender Registration and Notification Act and the Kansas Offender Registration Act, arguing that the statute was unconstitutional under the Necessary and Proper Clause. The court held that Defendant's argument was inconsistent with the Supreme Court's recent holding in United States v. Kebodeaux, 133 S. Ct. 2496 (2013).

Defendant also challenged his conviction for possession of child pornography under 18 U.S.C. § 2252(A)(a)(5)(B), arguing that the statute was overbroad, and potentially criminalized constitutionally protected speech. The majority held that Defendant did not carry his burden of demonstrating that protected speech was substantially chilled by the statute.

Judge Phillips concurred in part and concurred in the judgment. He asserted that because the statute specifically targeted individuals who intended to access child pornography, the statute was not overbroad, because access to child pornography is categorically excluded from First Amendment protection.


Extended Summary:

Defendant was arrested for failing to update his sex offender registration under Kansas and federal law. The arresting agents found child pornography on his computer when he was arrested, and as a result, he was convicted for failure to update the sex offender registry and for possession of child pornography.

Defendant challenged the constitutionality of the Sex Offender Registration and Notification Act, 42 U.S.C. § 16913, for exceeding Congress's powers under the Necessary and Proper Clause of Article 1. Defendant also challenged 18 U.S.C. § 2252(A)(a)(5)(B), which criminalizes images containing child pornography, for being unconstitutionally overbroad such that it prohibits speech and conduct protected by the First Amendment. The majority disagreed with the Defendant and affirmed his convictions.

Defendant pleaded guilty in 2001 to possessing child pornography, served 27-months in prison and afterward was placed on supervised release. His supervised release was revoked in 2004 because he violated a condition of release. He served another 21 months in jail. After serving this time, he was released without supervision, but had to register as a sex offender under the Wetterling Act, SORNA and the Kansas Offender Registration Act (KORA). Defendant failed to meet his registration requirements between 2006 and 2011, but relevant to this case was the time he failed to register between August 2009 and May 2011. After an investigation, Defendant was arrested at his home, which was searched incident to his arrest. The search led to the discovery of child pornography on his home computer. Defendant pleaded guilty to the charges but reserved his right to appeal.

The court addressed Defendant's Necessary and Proper challenge to the SORNA under a de novo standard of review. The majority found that his argument was inconsistent with the Supreme Court's decision in United States v. Kebodeaux, 133 S. Ct. 2496 (2013). In Kebodeaux, the Court reviewed Kebodeaux's conviction by court-martial for having sex with a minor while on active duty in the United States Air Force. Kebodeaux was not on supervised release, but was required to register as a sex offender under the Wetterling Act but failed to do so, and was prosecuted under SORNA. Kebodeaux argued that the Constitution did not allow regulation of intrastate activities of convicted sex offenders through registration, but reading the Necessary and Proper Clause in conjunction with the Military Regulation Clause, the Court found the statute constitutional.

The majority began its analysis by identifying the standard recognized in United States v. Comstock, 560 U.S. 126, 134 (2010), that the statute must be rationally related to the implementation of a constitutionally enumerated power. In doing so, it applied a two-part test - first, the statute must be an exercise of one of Congress's enumerated powers, and second, the statute must be necessary and proper for carrying out the enumerated power under the statute. In Kebodeaux, the first prong was met because Congress had the power to regulate the military, including sex crimes committed during military service. The second prong was met because the court found that the SORNA and the Wetterling Act were "eminently reasonable."

The majority noted that Kebodeaux had two dissenting opinions and two concurrences. Justice Thomas' dissent criticized the SORNA for being unconstitutional because it does not "carry into execution" any of Congress's enumerated powers. Kebodeaux, 133 S. Ct. at 2512 (Thomas, J., dissenting). Justice Thomas stated that the SORNA does not help implement the Military Regulation clause, or any other Article 1 power, and thus usurped the general police powers reserved for the states. Chief Justice Roberts' and Justice Alito's concurring opinions also noted this concern about usurping police powers, but found that the SORNA was necessary and proper to Congress's power "[t]o make Rules for Government and Regulation of the land and naval Forces." See id. at 2508 (Alito, J., concurring in the judgment) (quoting U.S. Const., art. I, § 8, cl. 14); see also id. at 2506 (Roberts, C.J., concurring in the judgment). The majority stated that even though case before it did not involve the Military Regulation Clause, Kebodeaux was binding. The majority stated that SORNA's relation to the Military Regulation Clause was not the only reason that the SORNA was constitutional.

Applying the two-part test to the present case, the majority found that SORNA survives Defendant's challenge. Defendant's original conviction was under Section 2242(a)(4)(B), which arises under the Commerce Clause, regulating trafficking of child pornography. Thus, because the underlying statute is constitutionally sound the SORNA is a rational extension of that congressional power under the Necessary and Proper Clause.

The majority then reviewed Defendant's challenge of 18 U.S.C. § 2252(A)(a)(5)(B) under a de novo standard of review. The court reviewed First Amendment precedent, explaining that certain types of speech, including defamation, incitement, obscenity, and pornography produced with real children were not protected by the First Amendment. In order to succeed on an overbreadth challenge, the majority stated that a challenger must show that the chilling effect on protected speech is both real and substantial, emphasizing that showing only some overbreadth is insufficient. Further, the majority explained that facial challenges to statutes are generally disfavored because they tend to counteract both judicial restraint and separation of powers as well as cause courts to anticipate a constitutional challenge before it may be necessary to answer a question of constitutionality. It also noted that the overbreadth doctrine should be applied sparingly, and as a last resort.

Defendant argued that the statute is overbroad because it did not specify that an individual "inten[d] to view" the pornography directly, and that the phrase "any other material" is too far-reaching. The majority noted that it must take a common sense approach to construing the statute, appreciating that some others may refrain from engaging in constitutionally protected speech because of its enactment, but also not speculating about hypothetical cases. It explained that it is the Defendant's burden to show that substantial overbreadth exists by showing protected materials that would be targeted by the statute. Because Defendant failed to produce any specific examples of protected speech showing that a considerable amount of speech is restricted. Defendant's hypothetical that a 500-page book with one image of child pornography would be outlawed did not rise to the level of showing that the statute outlaws a considerable amount of constitutionally protected speech. The court stated that regardless of whether the statute requires specific intent to view child pornography, it is not overbroad. It was sufficient that there were no specific examples of substantial overbreadth to decide that the statute is constitutional.

With regard to the "any other material" challenge, the court stated that it may look around to provide context for a term that is potentially unclear. It relied on the ordinary meaning of the terms "material" and "any other material" because they were not specifically defined in the statute. The majority noted that it is to construe terms in a limited fashion in order to avoid making a statute more broad than Congress intended. Further, the court applied ejusdem generis - the principle that when general words follow specific words in a statute, the general words are interpreted to mean only objects similar in nature to those enumerated in the specific words. Applying this principle to the present case, "any other material" cannot be more expansive than "book, magazine, periodical, film, videotape, [and] computer disk." Thus, the terms refer to tangible forms of media that "capture, store or deliver information as a means of communication." Here, the medium is the Internet.

The court also explained that statutes must be construed in a way that makes them constitutionally valid, if possible. If "any other material" were read expansively, it would effectively invalidate the scienter element of the statute and criminalize innocent conduct, by making Internet users who are aware that there is child pornography somewhere in the expanses of the Internet criminals the moment they log on to use the Internet. The court held that it was appropriate to construe "any other material" as meaning the "Internet" in the present case. Once the term "Internet" was removed from "any other material," the overbreadth challenge fell flat. There is no "realistic danger" that the statute will significantly chill protected speech, and the court was unaware of cases where the government was prosecuting Internet browsing under this statute.

Judge Phillips concurred in part and concurred in the judgment. He did not join the majority's conclusion that the statute requires "(1) knowing possession of, or accessing with intent to view, (2) any print, material, film, or computer media (3) containing an image of child pornography[.]" The majority concluded that the government must prove that the defendant intended to view material containing child pornography, not the child pornography itself. Judge Phillips' understanding of the statute is that the government must prove that the defendant intended to view an image of child pornography. Therefore, it was unnecessary for the majority to determine what qualifies as "any other material," because obtaining child pornography is excluded from First Amendment protection. He asserted that the statute only applies to people who are accessing child pornography and intending to view it, so there is no way that the statute could implicate protected speech.

To read the full opinion, please visit:


https://www.ca10.uscourts.gov/opinions/12/12-3322.pdf

Panel: Tymkovich, Baldock, Phillips

Date of Issued Opinion: September 19, 2014

Docket Number: No. 12-3322

Decided: Defendant's convictions were affirmed.

Counsel:

Tim Burdick, Assistant Federal Public Defender (Cyd Gilman, Federal Public Defender with him on the briefs), Office of the Federal Public Defender for the District of Kansas, Kansas City, Kansas, for Appellant.

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

Author: Tymkovich

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 09/22/2014 04:54 PM     10th Circuit     Comments (0)  

September 21, 2014
  United States v. Heineman- Tenth Circuit
Case Name: U.S. v. Heineman - 10th Circuit

Headline: Tenth Circuit holds that conviction for sending an interstate threat requires intent for recipient to feel threatened.

Areas of Law: Criminal Law, Constitutional Law

Issue Presented:

Does 18 U.S.C. § 875(c) require a finding that the defendant intended for the recipient to feel threatened?

Brief Summary:

Defendant was convicted of sending an interstate threat after sending an e-mail to a professor at the University of Utah that caused the professor to fear for his safety. The court reversed the decision of the district court that the government did not have to prove that the defendant intended for the communication to be received as a threat. The court held that the First Amendment required the government to prove that the defendant intended for the recipient to feel threatened. It relied primarily on Virginia v. Black, 538 U.S. 343 (2003).

Judge Baldock concurred in the judgment only. He opined that the case should be resolved by looking only to the text of the statute, without reaching the constitutional question. He also stated that this issue is currently before the Supreme Court, and that the decision in this case should have waited until after the Supreme Court's ruling.

Extended Summary:

Defendant was convicted at a bench trial of one count of sending an interstate threat after sending emails containing white supremacist ideas to a professor at the University of Utah. Defendant sent three emails to the professor, the third of which contained a poem that caused the professor to fear for his safety and that of his family.

At trial, the defendant requested an instruction stating that the government is required to prove that the defendant intended the communication to be perceived as a threat. He explained that he has Asperger's Disorder, which makes it difficult for him to appreciate how others will perceive his actions. The district court denied the instruction, and the defendant moved to dismiss the charge, arguing that Section 875(c) was facially unconstitutional without the proof of intent to cause fear. The motion was denied, and the parties agreed to have a bench trial so that the defendant could preserve his legal arguments. In convicting the defendant, the district court did not make a finding that the defendant intended the victim to feel threatened.

The majority noted that the law in the Tenth Circuit is well settled regarding most of the elements of Section 875(c). The government must establish that a reasonable person, under the circumstances, would understand that the communication was a serious declaration of an intention to harm another, but does not need to show that the defendant intended to carry out the threat.

In spite of the fact that the statute does not contain a mens rea requirement, the majority noted that statutes which criminalize speech must comply with the First Amendment. The majority then noted that because the issue is one of constitutional law, the standard of review was de novo.

The majority quickly dismissed two cases set forth by the government - United States v. Viefhaus, 168 F.3d 392 (10th Cir. 1999), because the decision predated Black, and United States v. Wolff, 370 F.App'x 888 (10th Cir. 2010), because that was an unpublished decision that was not binding. It next addressed the government's reliance on Nielander v. Board of County Commissioners, 582 F.3d 1155 (10th Cir. 2009), by explaining that it did not address the question at issue, but rather decided that the defendants were entitled to qualified immunity. Finally, the court addressed the government's reliance on United States v. Teague, 443 F.3d 1310 (10th Cir. 2006). In Teague, like the defendant in the present case, the defendant argued on appeal that the jury should have been instructed that he intended for the victim to feel threatened. The court in Teague reviewed for plain error, however, because the issue was not raised at the district court level. The court also noted that Teague contained no interpretation of Black.

The defendant relied on United States v. Pinson, 542 F.3d 822 (10th Cir. 2008). The court stated that although there was some language in Pinson that was helpful to the defendant's position, it did not bind the court because it involved a prosecution under a different statute and did not discuss constitutional law. Next, the court discussed the defendant's reliance on United States v. Magleby, 420 F.3d 1136 (10th Cir. 2005), where the court stated in dicta that convictions for burning and conspiring to burn a cross required an intention of placing the victim in fear. The case was decided on other grounds, however, and the language interpreting Black was not binding.

After distinguishing the cases raised by both parties, the court determined that whether the First Amendment, as interpreted by Black, required proof of intent for the recipient to feel threatened was an issue of first impression in the Tenth Circuit. The court held that it did.

The majority then provided a summary of Black. In Black, three state-law convictions for cross burning with intent to intimidate were being challenged. The Virginia Supreme Court held that the statute was facially unconstitutional because the statute chose cross burning because of its distinct message, which was an impermissible content-based distinction under R.A.V. v. City of St. Paul, 505 U.S. 377 (1977), and because the prima facie provision of the statute made it overbroad. The Supreme Court had affirmed in part and reversed in part.

The majority discussed Justice O'Connor's opinion in Black, which noted that the First Amendment allows "free trade in ideas - even ideas that the overwhelming majority of people may find distasteful or discomforting." Black, 538 U.S. at 358. The Amendment, however, does allow restriction of content which has such slight social value that its benefit is clearly outweighed by social interest. Id. at 358-59. Imminent breach of the peace, fighting words, and "true threats" were counted among those forms of speech that could be restricted. Id. Black defined a "true threat" as a threat to a person with the intent of placing the victim in fear of bodily harm or death. Id. at 359-60. The court noted that cross-burning was a symbolic expression, and that even when speech is banned in an unprotected category, the statute may not target only a subset of that unprotected category.Id. at 360-62. The Supreme Court held that Virginia's ban on cross burning was consistent with R.A.V., because cross-burning is a "particularly virulent form of intimidation." Id. at 363.

The Supreme Court did not reach a majority on the overbreadth issue. Three Justices did not address the issue, and four would have held the statute facially unconstitutional for the language "any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Justice Scalia dissented from the plurality on the question of overbreadth. Scalia argued that the prima facie provision permitted an inference of intent only when the defendant did not put on rebuttal evidence. He stated that the statute was not overbroad, because reading it in this way was unlikely to convict individuals engaging in constitutional protected conduct, and the statute should have been remanded to the Virginia Supreme Court for interpretation, rather than construed by the Supreme Court. Justice Thomas stated that he would have upheld the statute.

The Tenth Circuit stated that it reads Black as requiring an intent for the recipient to feel threatened, highlighting language from Black that applies the "true threats" definition to intimidation, which explicitly requires intent to cause the victim fear. Further, the majority stated that the Black plurality analysis was based on the idea that the First Amendment required intent to cause fear, because the issue with the prima facie provision was that the jury may infer that the defendant intended to cause fear through the act of cross burning. Despite the fact that the overbreadth issue was decided on just a plurality, the Tenth Circuit noted that although Justice Scalia departed from the majority on the overbreadth issue, he did not challenge the assumption that the First Amendment required an intent to cause fear. Even in his dissent from the majority and plurality, the Tenth Circuit noted that Justice Souter seems to have assumed that the intent to cause fear is required by the First Amendment.

The majority stated that the Ninth Circuit has interpreted Black in the same way, and that there was some support for its position in the Seventh Circuit as well. The First, Third, Fourth, Sixth, Eighth and Eleventh Circuits do not interpret Black in the same way, but the majority stated that the reasoning in those opinions was not persuasive to them. The majority then discussed United States v. Jeffries, 692 F.3d 473 (6th Cir. 2012), because it provided reasons for rejecting the majority's interpretation of Black. Jeffries stated that the intent requirement was not necessary because the Virginia statute already required one. The majority pointed out that if this were the case, the Court would not have been concerned that a jury could find subjective intent on inadequate grounds. The majority also noted that Jeffries read the intent element of "true threat" as meaning that the defendant meant to communicate. The majority conceded that the language was ambiguous, but that the natural reading of the language suggested that the speaker required intent to harm. The majority stated that its position is further supported by language in Black in the same paragraph that explains that the defendant need not intend to carry out the threat. Further, Jeffries stated that intimidation does require proof of intent to cause fear to the victim, but stated that intimidation was just one type of true threat. The majority responded to this by questioning why the First Amendment would require an intent to cause fear for some true threats, but not all of them. The majority also questioned Jeffries' assertion that the First Amendment allows an "effect on the listener" exception to the freedom of speech by pointing out that some speech causes fear. For example, speech that may cause fear but is only intended to be political speech, is protected by the First Amendment.

The majority concluded that the government must show an intent for the speaker to cause fear to the recipient of the message in order to be convicted under Section 875(c), and reversed the defendant's conviction, remanding to the district court for a determination of whether the defendant intended his e-mail to be threatening.

Judge Baldock wrote to concur in the judgment only. He opined that the majority did not need to reach the constitutional question of whether the statute violated the First Amendment and could have reached the same conclusion by conduction a statutory analysis alone. Judge Baldock noted that the Supreme Court recently granted certiorari in United States v. Elonis, 730 F.3d 321 (3d Cir. 2013), in which the only question that was raised was the question that the majority answered in the present case. The Supreme Court, however, requested additional briefing on whether Section 875(c) required subjective intent to threaten the victim as a matter of statutory interpretation. Judge Baldock asserts that this indicates that the question may be resolved on statutory interpretation grounds without reaching the constitutional question.

Judge Baldock then pointed to the majority's statement in footnote 2 of the opinion that United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983) and Viefhaus precluded it from engaging in textual analysis of Section 875(c). Judge Baldock stated that this was not true, because the Tenth Circuit has never considered the statute for subjective intent to threaten before. In fact, he suggested that the opinions contained support for reading the statute as requiring subjective intent. Further, even if they did not, there is no opinion that requires the interpretation of one statute to bind the court to make the same decision concerning a different statute. Therefore, statutory analysis is not precluded.

Judge Baldock then discussed Judge Sutton's dubitante opinion in Jeffries at length (a dubitante opinion is one that generally doubts the reasoning of the majority, but is hesitant to declare it wrong). He explained that, of the many opinions that have addressed the meaning of Section 875 (c), Judge Sutton's is the only one that answers the question of whether the statute itself requires subjective intent. Judge Baldock suggested that the majority should at least have explained why Judge Sutton's view should not prevail before engaging in the constitutional analysis, particularly when the Supreme Court has suggested that it may.

To read the full opinion, please visit:
https://www.ca10.uscourts.gov/opinions/13/13-4043.pdf

Panel: Hartz, Baldock, Bacharach

Date of Issued Opinion: September 15, 2014

Docket Number: 13-4043

Decided: Conviction under 18 U.S.C. § 875(c) requires a showing that the defendant intended for the recipient to feel threatened by the transmission.

Counsel:

Benjamin McMurray, Assistant Federal Public Defender (Kathryn Nester, Federal Public Defender, with him on the briefs), District of Utah, Salt Lake City, Utah, for Defendant - Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (David B. Barlow, United States Attorney, with her on the brief), District of Utah, Salt Lake City, Utah, for Plaintiff - Appellee.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 09/21/2014 01:33 PM     10th Circuit     Comments (0)  

September 18, 2014
  Second Circuit- Republic of Iraq v. ABB AG
Headline: Second Circuit Affirms Dismissal of Republic of Iraq's Claims Against Corporations and Individuals for Conspiring with Saddam Hussein During His Regime to Profit from the Humanitarian Oil-for-Food Programme.

Area of Law: RICO, International Law; Civil Procedure

Issue(s) Presented: Whether the post-Hussein Republic of Iraq may recover damages resulting from defendants' alleged conspiracy with the former Hussein Regime to illegally profit from the UN Oil-for-Food Programme.

Brief Summary: The Republic of Iraq filed a complaint against dozens of corporations and two individuals claiming that, over the last several years when Saddam Hussein ruled Iraq (the "Hussein Regime"), these defendants conspired with Hussein and plundered the humanitarian "oil for food program," giving rise to claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), the Foreign Corrupt Practices Act (FCPA), and common law. The United States District Court for the Southern District of New York dismissed the amended complaint, holding that the post-Hussein Republic of Iraq was in pari delicto with the Hussein Regime, and therefore could not recover under RICO, and that no private right of action exists under the FCPA. The district court declined to exercise supplemental jurisdiction on the common law claims. A divided panel affirmed. Judge Droney concurred in the FCPA holding, but dissented from the RICO holding.

The full text of the opinion may be found at:
http://www.ca2.uscourts.gov/de...bd1112c3f68/1/hilite/

Extended Summary: In response to Iraq's invasion of Kuwait in 1990, the United Nations Security Council imposed harsh economic sanctions against Iraq, calling on all states to embargo trade and financial transactions with Iraq. In 1991, the Security Council discovered immense suffering among the Iraqi people, and adopted a series of resolutions to allow Iraq's government led by Saddam Hussein (the "Hussein Regime") to sell oil in exchange for food and medicine. For several years, Hussein refused to meet the conditions set for the aid and the people of Iraq continued to suffer. In 1996, Hussein agreed to participate in the United Nation ("UN") Oil-for-Food Programme, which allowed the regime to sell oil to foreign purchasers and use the proceeds to purchase food and other humanitarian goods for the benefit of the Iraqi people.

Under the Programme, each purchase of Iraqi oil was required to disclose all the terms of the contract. The price of Iraqi oil was to be set each month by the UN. Hussein's Regime conspired with foreign allies purchasing the oil to provide market data reflecting artificially low oil rates, causing the UN to set the price of Iraqi oil below market value. The Regime's allies, five defendants characterized as "Oil Purchasing Defendants," then purchased Iraqi oil below market and immediately sold it at market for profit. In exchange, the allies paid surcharges to the Regime, rather than the Programme. Six of the defendants, banking entities, allegedly helped the Oil Purchasing Defendants hide transactions with the regime from the UN. The remaining "Vendor Defendants," were suppliers of humanitarian goods, who allegedly overcharged for their products, and delivered substandard products, then kicked-back part of the overage to Hussein's Regime.

In 2003, Hussein's Regime fell and the Oil-for-Food escrow account was dispersed to the post-Regime Republic of Iraq. The Republic discovered that billions of dollars had been siphoned from the humanitarian Oil-for-Food Programme to Hussein's Regime.

The Republic of Iraq filed a complaint against dozens of corporations and two individuals claiming that they had conspired with Hussein and plundered the humanitarian Oil-for-Food Programme, giving rise to claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), the Foreign Corrupt Practices Act (FCPA), and common law. The United States District Court for the Southern District of New York dismissed the amended complaint, holding the Republic of Iraq was in pari delicto with the Hussein Regime on the RICO claim and that there was no private right of action under the FCPA. The court declined to exercise supplemental jurisdiction on the common law claims.

A divided panel affirmed. The Second Circuit held for the first time that in pari delicto is an available defense to a private RICO claim. The in pari delicto defense reflects the principle that a plaintiff who participated equally in a wrongdoing may not recover damages resulting from the wrongdoing. The parties did not dispute the Hussein Regime's wrongdoing or role in the corruption, and the court held that the legal position of a foreign state survives changes in government. The majority rejected the Republic's argument that the Hussein Regime was illegal, noting that Hussein's title was President and he acted as the government of Iraq and was recognized as such by the United States and UN. The majority found that Hussein's Regime was the government of Iraq and that government instigated and was the dominant party in the frauds and breaches that corrupted the Oil-for-Food Programme and, accordingly, held that the district court properly attributed that wrongdoing to the Republic.

Judge Droney concurred with majority holding that no private right of action exists under the FCPA, but dissented from the court's RICO holding. Judge Droney distinguished between the Hussein Regime and the post-Hussein Republic and asserted that the Republic should not be treated as complicit in the fraud against the humanitarian effort. He reasoned that to do so would "release defendants of liability for conduct that, if true, constituted a clear violation of United States law and subversion of United States policy, and [] deprive the ultimate victims of the defendants' conduct of any remedy."

The full text of the opinion may be found at
http://www.ca2.uscourts.gov/de...bd1112c3f68/1/hilite/

Panel (if known): Circuit Judges Kearse, Winter, and Droney

Argument Date: 02/18/2014

Argument Location: New York, NY

Date of Issued Opinion: 09/18/2014

Docket Number: No. 13-0618

Decided: Affirmed

Case Alert Author: Joan O'Connor Archer

Counsel: MARK MANEY, Houston, Texas (Roliff Purrington, Maney & González-Félix, Houston, Texas; Stanley D. Bernstein, Christian Siebott, Bernstein Liebhard, New York, New York, on the brief), for Plaintiff-Appellant.
BRANT W. BISHOP, Washington, D.C. (Thomas D. Yannucci, John R. Bolton, Robert B. Gilmore, Kirkland & Ellis, Washington, D.C., on the joint brief), for Defendants-Appellees Siemens S.A.A. of France, Siemens Sanayi ve Ticaret A.S. of Turkey, and OSRAM Middle East FZE.
ROBERT S. BENNETT, Washington, D.C. (Christopher T. Handman, Ellen S. Kennedy, Hogan Lovells, Washington, D.C.; Jennifer L. Spaziano, Skadden, Arps, Slate, Meagher & Flom, Washington, D.C., on the joint brief), for Defendants-Appellees BNP Paribas USA, BNP Paribas (Suisse) SA, BNP Paribas Hong Kong, BNP Paribas Paris, BNP Paribas UK Holdings Limited, and BNP Paribas London Branch.
AXINN, VELTROP & HARKRIDER (John D. Harkrider, New York, New York, Gail L. Gottehrer, Hartford, Connecticut, on the joint brief), for Defendant-Appellee Secalt S.A.
WILLIAMS & CONNOLLY (Robert A. Van Kirk, Katherine M. Turner, Washington, D.C., on the joint brief), for Defendants-Appellees Textron, Inc., Union Pump S.A.S., and David Brown
Transmissions of France, S.A.
PILLSBURY WINTHROP SHAW PITTMAN (John F. Pritchard, Edward Flanders, Ranah L. Esmaili, New York, New York, on 1 the joint brief), for Defendants-Appellees Atlas Copco Airpower N.V. and Atlas Copco CMT.
KIRKLAND & ELLIS (James P. Gillespie, Karen McCartan DeSantis, Washington, D.C., on the joint brief), for Defendants-Appellees ABB AG, ABB Automation, ABB Elektric Sanayi AS, ABB Industrie AC Machines, ABB Industrie Champagne,and ABB Near East Trading Ltd.
TROUTMAN SANDERS (Elliot Cohen, New York, New York, on the joint brief), for Defendants-Appellees AGCO Denmark A/S,AGCO S.A., and Valtra do Brazil.
LEADER & BERKON (Michael J. Tiffany, New York, New York; Christopher S. Riley, Barnes & Thornburg, Elkhart, Indiana, on the joint brief), for Defendant-Appellee ABB Solyvent-Ventec.
BAKER & McKENZIE (Darrell Prescott, New York, New York, on the joint brief), for Defendant-Appellee Air Liquide Engineering.
COVINGTON & BURLING (Nancy Kestenbaum, New York, New York, Mark H. Lynch, Washington, D.C., on the joint brief), for Defendants-Appellees Akzo Nobel N.V., N.V. Organon, Intervet International B.V., Astra Zeneca AB., Cilag AG International, Janssen Pharmaceutical, and Merial.
ALSTON & BIRD (Karl Geercken, New York, New York, on the joint brief), for Defendants-Appellees B. Braun Medical France, B. Braun Melsungen A.G., B. Braun Medical Industries SDN BHD (Malaysia), Aesculap AG and KG, Aesculap Motric S.A., and Aesculap Surgical Instruments SDN.
CRAVATH, SWAINE & MOORE (Robert H. Baron, Timothy G. Cameron, New York, New York, on the joint brief), for Defendant-Appellee AWB, Ltd.
PARK & JENSEN (Tai H. Park, New York, New York, on the joint brief), for Defendant-Appellee Boston Scientific S.A.
PEPPER HAMILTON (Robert L. Hickok, Barak A. Bassman, Philadelphia, Pennsylvania, Kenneth J. King, New York, New York, on the joint brief), for Defendants-Appellees
GlaxoSmithKline Egypt SAE, Glaxo Wellcome Export Ltd.,Glaxo Wellcome SA (South Africa) (PRY) Ltd., and SmithKline Beecham International.
SPAGNOLETTI & CO. (Francis I. Spagnoletti, David S. Toy, Houston, Texas, on the joint brief), for Defendant-Appellee David B. Chalmers, Jr.
SHEARMAN & STERLING (Philip E. Urofsky, Washington, D.C., Danforth Newcomb, H. Miriam Farber, New York, New York, on the joint brief), for Defendants-Appellees Buhler Ltd.,
Daimler-Chrysler AG, ABG Allgemeine Baumaschinen-GesellschaftmbH, Sulzer Pumpen Deutschland GmbH, Sulzer Turbo Ltd., Renault Trucks SAS, Renault V.I., and Volvo
Construction Equipment AB.
JONES DAY (Meir Feder, Thomas E. Lynch, New York, New York, on the joint brief), for Defendant-Appellee Chevron Corp.
GIBBONS (Thomas R. Valen, Newark, New Jersey, on the joint brief), for Defendants-Appellees Daewoo International Corp. and Kia Motors.
FULBRIGHT & JAWORSKI (Mark A. Robertson, New York, New York, on the joint brief), for Defendant-Appellee El Paso Corp.
CADWALADER, WICKERSHAM & TAFT (Jason Jurgens, Nathan M. Bull, New York, New York, on the joint brief), for Defendant-Appellee Dow AgroSciences.
BOWIE & JENSEN (R. Michael Smith, Towson, Maryland, on the joint brief), for Defendant-Appellee Evapco Europe S.r.l.
KELLEY DRYE & WARREN (Thomas B. Kinzler, David Zalman, Melissa E. Byroade, New York, New York, on the joint brief), for Defendants-Appellees Flowserve Corp., Flowserve Pompes, and Flowserve B.V.
ROTHWELL, FIGG, ERNST & MANBECK (Robert P. Parker, Washington, D.C., on the joint brief), for Defendant-Appellee Ingersoll-Rand Benelux, N.V.
SIDLEY AUSTIN (Richard D. Klingler, Steven J. Horowitz, Washington, D.C., Dorothy J. Spenner, New York, New York, on the joint brief), for Defendants-Appellees Eli-Lilly Export
S.A., Ingersoll-Rand Italiana, SpA., Thermo King Ireland Limited, Ingersoll-Rand World Trade Ltd., and Novo Nordisk.
WILLCOX & SAVAGE (Brett A. Spain, Norfolk, Virginia, on the joint brief), for Defendants-Appellees Liebherr Export AG and Libher France, SA.
NIXON PEABODY (Michael S. Cohen, Jericho, New York, on the joint brief), for Defendant-Appellee Serono Pharma International.
EPSTEIN BECKER & GREEN (Peter L. Altieri, David J. Clark, New York, New York, on the joint brief), for Defendant-Appellee Railtech International.
HARKINS CUNNINGHAM (John G. Harkins, Jr., Philadelphia, Pennsylvania, on the joint brief), for Defendant-Appellee Rohm and Haas France, S.A.
ALSTON & BIRD (John P. Doherty, New York, New York, on the
joint brief), for Defendant-Appellee Pauwels.
DAVIS POLK & WARDWELL (Brian S. Weinstein, New York, New York, Jason McCullough, Washington, D.C., on the joint brief), for Defendants-Appellees F. Hoffman La Roche and
Roche Diagnostics GmbH.
BAKER & HOSTETLER (Gregory L. Baker, Washington, D.C., on the joint brief), for Defendant-Appellee Solar Turbines Europe.
CARTER LEDYARD & MILBURN (Judith A. Lockhart, New York, New York, on the joint brief), for Defendant-Appellee St. Jude Medical Export GmbH.
DRINKER BIDDLE & REATH (Clay J. Pierce, New York, New York, on the joint brief), for Defendant-Appellee Renault Agriculture & Sonalika International.
CANALES & SIMONSON (J.A. Canales, Corpus Christi, Texas, on the joint brief), for Defendant-Appellee Oscar S. Wyatt, Jr.
BAKER & McKENZIE (Larence Walker Newman, New York, New York, on the joint brief), for Defendant-Appellee Sulzer Burckhardt Engineering Works Ltd.
JONES DAY (Michael H. Ginsberg, Pittsburgh, Pennsylvania, on the joint brief), for Defendant-Appellee The Weir Group.
SULLIVAN & CROMWELL (Penny Shane, Andrew P. Giering, New York, New York, on the joint brief), for Defendant-Appellee Vitol, S.A.
K&L GATES (Walter P. Loughlin, New York, New York; Andrew Siegel, Christopher A. Payne, Sandler Siegel, Dallas, Texas, on the joint brief), for Defendant-Appellee Woodhouse
International.
REED SMITH (Casey D. Laffey, New York, New York, on the joint brief), for Defendant-Appellee York Air Conditioning and Refrigeration FZE.

Author of Opinion: Judge Kearse (for the majority); Judge Droney (concurs in part, dissents in part)

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

Edited: 09/19/2014 at 06:27 AM by Elyse Moskowitz

    Posted By: Elyse Moskowitz @ 09/18/2014 08:52 PM     2nd Circuit     Comments (0)  

September 17, 2014
  Chavez-Lavagnino - Eight Circuit
Headline Eighth Circuit panel interprets Minnesota Whistleblower Act and common law in wrongful discharge case following jury verdict in favor of plaintiff employees

Area of Law Employment Law

Issue(s) Presented Whether the district court properly denied Defendants' motion for judgment as a matter of law after the trial on Plaintiffs' wrongful discharge claims, where jury awarded Plaintiffs lost wages, and district court awarded pre-judgment interest and attorneys fees.

Brief Summary Plaintiffs worked for Defendant Motivation Education Training, Inc. ("MET") and were supervised by Defendant Cerna. MET is a non-profit that provides services to migrant and seasonal farm workers, and receives funding from federal grants. To use federal funds, MET must ensure that the workers it assists meet certain eligibility requirements. MET also creates follow-up notes on the workers, which it uses in applying for additional federal grant money. During Plaintiffs' employment, Defendant Cerna ordered them to forge applicant signatures, shred tax documents, falsify follow up notes, and register unqualified applicants. After refusing to perform what they believed to be illegal activities, Plaintiffs were fired. Plaintiff Yanez was later given the opportunity to continue her employment, but declined.

Plaintiffs sued MET and Cerna, alleging violations of the Minnesota Whistleblower Act and Minnesota common law. The statute provides in relevant part that an employer "shall not discharge . . . [or] otherwise discriminate against" an employee because "the employee refuses an employer's order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law . . . ." Similarly, under common law, "an employee may bring an action for wrongful discharge if that employee is discharged for refusing to participate in an activity that the employee, in good faith, believes violates any state or federal law." The case proceeded to trial, and a jury found Defendants' guilty of wrongful discharge. The district court denied Defendants' motion for judgment as a matter of law following the verdict. Defendants appealed the district court's order denying their motion for judgment as a matter of law, primarily arguing that Plaintiffs failed to prove a violation of either the Whistleblower Act or Minnesota common law.

A panel of the Eighth Circuit affirmed the district court's denial of Defendants' motion with respect to the claims against Defendant MET. The Court first held that Plaintiffs proved their "objective basis in fact" and "good faith" belief that Cerna's orders required them to break the law, as the ordered actions would violate statutes prohibiting defrauding the federal government. The Court also held that, with respect to Plaintiff Yanez, though she was offered her job back she met the implied materiality requirement of both the statute and common law. In so ruling, the Court looked to Title VII precedent, and determined that if faced with this issue the Minnesota Supreme Court would apply the Title VII materiality standard, which Plaintiff Yanez met in this case. Finally, the Court held that Plaintiffs had presented sufficient evidence of causation to support the jury's verdict, given the short timeframe between their refusal to follow illegal orders and their firing, and statements made by Cerna.

With respect to the verdict against Defendant Cerna, the Minnesota Supreme Court has never addressed whether a supervisor may be held liable for wrongful discharge. The Eighth Circuit noted that courts are divided on this issue, but held that the Minnesota Supreme Court would likely hold that a supervisor cannot be held personally liable for wrongful discharge, because a supervisor has no individual capacity to destroy the employment relationship without authorization from the employer. As such, the Court reversed the judgment against Defendant Cerna.

Finally, the Court determined that the motion for pre-judgment interest was untimely, and should have been rejected, but remanded for further consideration the question of attorneys fees in light of the Court's reversal of the judgment against Defendant Cerna.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/14/08/121058P.pdf

Panel Chief Judge Riley and Circuit Judges Colloton and Gruender

Date of Issued Opinion August 25, 2014

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

Docket Number 12-1058

Counsel Brian Emery Cote for Plaintiffs and Michael John Minenko for Defendants

Author Circuit Judge Colloton

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

    Posted By: Joelle Larson @ 09/17/2014 09:51 AM     8th Circuit     Comments (0)  

September 16, 2014
  Martinez v. Caribbean
Headline: Ninth Circuit Affirms the Dismissal for Lack of Personal Jurisdiction of a Tort Lawsuit Against French Company.

Area of Law: Civil Procedure

Issue(s) Presented: Whether, under Burnham v. Superior Court, service of process on a corporation's officer within the forum state creates general personal jurisdiction over the corporation.

Brief Summary:
Plaintiffs, the heirs of decedent Lorenzo Mendoza Cervantes, appealed the district court's dismissal of their claims against Avions de Transport Regional ("ATR") for lack of personal jurisdiction and denial of their request for additional jurisdictional discovery. The Ninth Circuit granted review to determine whether, under Burnham v. Superior Court, service of process on a corporation's officer within the forum state creates general personal jurisdiction over the corporation.

The Court rejected Plaintiffs reliance on Burnham to argue that in-state service of process on a corporate officer who is acting on behalf of the corporation at the time of service creates "tag jurisdiction" over the corporation. The Court held that "while a corporation may in some abstract sense be 'present' wherever its officers do business, such presence is not physical in the way contemplated by Burnham." The Court also reiterated that it has never indicated that Burnham applies to corporations.

The Court next emphasized that it has required an analysis of a corporation's contacts with the forum state even when tag jurisdiction would have made the analysis unnecessary. The Court found that the five sets of ATR's contacts with California that plaintiffs relied on were plainly insufficient to subject ATR to general jurisdiction in California.

The Court also held that the district court did not abuse its discretion in denying plaintiffs' request for additional discovery, reasoning that nothing plaintiffs could discover about ATR North America's contacts with California would make ATR "essentially at home" in California.

The Ninth Circuit concluded that ATR is not subject to personal jurisdiction in California, Burnham does not apply to corporations, and ATR's contacts with California are insufficient to support general jurisdiction - and, thus, affirmed the district court's dismissal of plaintiffs' claims against ATR for lack of personal jurisdiction.

Extended Summary: Lorenzo Carazon Cervantes was a passenger on an airplane that crashed in Cuba, killing everyone aboard. ATR, a French company, designed and manufactured the airplane. Cervantes' widow and his three sons sued ATR in the United States District Court of the Northern District of California, alleging claims for products liability, negligence, breach of warranty, and wrongful death against ATR.

Plaintiffs served the summons and complaint on ATR at its headquarters in France. ATR moved to dismiss the complaint for lack of personal jurisdiction. The district court gave plaintiffs two months to conduct limited jurisdictional discovery. During the discovery period, plaintiffs served copies of the summons and complaint on ATR's vice president of marketing while he was in California attending a conference on ATR's behalf.

First, the Court discussed the two kinds of personal jurisdiction that a state's courts may exercise over an out-of-state defendant - special jurisdiction and general jurisdiction - which can be traced back to the Court's decision in International Shoe Co. v. Washington. The Court then discussed International Shoe's reconceptualization of the personal jurisdiction approach famously described in Pennoyer v. Neff and development of "a new concept of contacts-based jurisdiction as a flexible and context-specific alternative to Pennoyer's focus on a defendant's physical presence within the forum."

The Court reiterated that, in Burnham, the Court held that "Pennoyer's category of 'jurisdiction based on physical presence alone' survived International Shoe as an independent basis for personal jurisdiction, at least for natural persons." In Burnham, the Court reaffirmed "tag jurisdiction" rule, which provides that "personal service upon a physically present defendant suffice[s] to confer jurisdiction, without regard to whether the defendant was only briefly in the State or whether the cause of action was related to his activities there."

The Court then rejected Plaintiffs reliance on Burnham to argue that in-state service of process on a corporate officer who is acting on behalf of the corporation at the time of service creates tag jurisdiction over the corporation.

The Court noted that none of the various opinions in Burnham discussed tag jurisdiction with respect to artificial persons. The Court reasoned that, unlike natural persons who can be physically present in a single ascertainable place, corporations can only act through their agents, can do so in many places simultaneously, and can be present only through their contacts with the state. The Court thus held that "while a corporation may in some abstract sense be 'present' wherever its officers do business, such presence is not physical in the way contemplated by Burnham."

Second, the Court emphasized that it has required an analysis of a corporation's contacts with the forum state even when tag jurisdiction would have made the analysis unnecessary. The Court discussed Perkins v. Benguet Consolidated Mining Co., where the decision turned on the extent of the company's contacts with the forum state and not on the in-state service on the company's president.

The Court reiterated that it has never indicated that Burnham applies to corporations. The Court then distinguished the only two federal courts of appeals that have reached decisions arguably contrary to the Court's holding - the First Circuit did not explain or cite any supporting cases and the Second Circuit case involved a partnership.

The Court opined that personal jurisdiction would exist over ATR only if ATR's contacts with California support either specific or general jurisdiction. Plaintiffs did not argue that specific jurisdiction exists over ATR, given that no part of the lawsuit arose out of or related to ATR's contacts with California.

The Court then found that the five sets of ATR's contacts with California that plaintiffs relied on were plainly insufficient to subject ATR to general jurisdiction in California. The Court noted the demanding nature of the standard for general personal jurisdiction over a corporation, as evidenced in Daimler, which emphasized that "the 'paradigm' fora for general jurisdiction are a corporation's place of incorporation and principal place of business." The Court thus held that this case is not an exceptional case that would allow general jurisdiction anywhere else - reasoning that ATR is organized and has its principal place of business in France; it has no offices, staff, or other physical presence in California; it is not licensed to do business in the state; and its California contacts are minor compared to its worldwide contacts.

Last, the Court addressed plaintiffs' request for additional jurisdictional discovery about ATR North America. It noted that nothing plaintiffs could discover about ATR North America's contacts with California would make ATR "essentially at home" in California. Thus, the district court did not abuse its discretion in denying plaintiffs' request for additional discovery.

Based on the above discussion, the Ninth Circuit concluded that ATR is not subject to personal jurisdiction in California, Burnham does not apply to corporations, and ATR's contacts with California are insufficient to support general jurisdiction - and, thus, affirmed the district court's dismissal of plaintiffs' claims against ATR for lack of personal jurisdiction.

For the full opinion: http://cdn.ca9.uscourts.gov/da...14/08/21/12-16043.pdf

Panel: Barry G. Silverman, William A. Fletcher, and Jay S. Bybee, Circuit Judges.

Date of Issued Opinion:
August 21, 2014

Docket Number: 12-16043

Decided: Affirmed.

Case Alert Author:
Beverly E. Bashor

Counsel: Brian J. Malloy (argued), Thomas John Brandi, and Daniel Dell'Osso, The Brandi Law Firm, San Francisco, California, for Plaintiffs-Appellants; Eric C. Strain (argued), Cameron Robert Cloar, and Brian C. Dalrymple, Nixon Peabody LLP, San Francisco, California, for Defendant-Appellee.

Author of Opinion: W. Fletcher, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/16/2014 01:09 PM     9th Circuit     Comments (0)  

September 15, 2014
  Tara King v. Governor of the State of New Jersey - Third Circuit
Headline: Third Circuit rules that New Jersey law that prohibits professional counselors from trying to change the sexual orientation of minors is constitutional

Area of Law: Constitutional

Issues Presented: Does a New Jersey statute that prohibits counselors from engaging in "sexual orientation change efforts" with individuals younger than 18 violate the First Amendment?

Brief Summary: New Jersey passed a law that prohibited professional counselors from trying to change the sexual orientation ("sexual orientation change efforts" or "SOCE") of individuals under 18 years of age. This law was challenged by counselors who wanted to engage in such activities on the grounds that the law violated both the free speech and religion clauses of the First Amendment. The Third Circuit Court of Appeals held that the law did not violate the First Amendment of the Constitution because the Frist Amendment allows for certain limits on speech by licensed professionals. Likening it to commercial speech, the Court said the law was entitled to an intermediate level of scrutiny. Under that standard, the law was constitutional because it "directly advances" the government's interest in protecting minors from SOCE counseling, which has been shown to be harmful. The Court also rejected the appellants' argument that the law violated the First Amendment on religious freedom grounds by saying that the law is neutral and generally applicable and does not reference any religion or religious belief. The Court affirmed the District Court's decision that the New Jersey prohibiting SOCE counseling to minors does not violate the First Amendment.

Extended Summary: The New Jersey legislature enacted a law that prohibits licensed professional counselors from engaging in "sexual orientation change efforts" ("SOCE") with individuals under the age of 18. The legislature determined that it had a compelling interest in protecting the physical and psychological well-being of its minors. The legislature cited research that SOCE counseling poses a significant risk of harm to minors and can lead to low self-esteem, depression, and even suicide. Counselors who previously engaged in SOCE counseling filed suit claiming that the statute violated their First Amendment right to free speech and to free exercise of their religion. The District Court rejected the Plaintiffs' First Amendment claims on the basis that SOCE counseling should be categorized as conduct and therefore is not protected by the First Amendment.

The Third Circuit agreed with the District Court's ruling, but not with its reasoning. The Third Circuit dismissed the trial court's conclusion that any SOCE counseling session should be categorized as "conduct" and not speech, thereby denying it First Amendment protection. The verbal communication that occurs during counseling is speech and should be given protection under the First Amendment. The real question, however, is how much protection it should receive. Because counselors administering SOCE counseling are licensed by the state and are participating in a professional relationship with their clients, the Court found that the level of protection afforded their speech is diminished.

The Third Circuit likened professional speech to commercial speech, which has been given an intermediate level of protection rather than the strict level of protection from governmental interference provided to personal speech. The main reason commercial speech has been granted less protection is that there is a long, well accepted history of governmental regulation of commercial speech for the purpose of protecting the safety and economic well-being of the public. The Court found that the same is true of professional speech. Accordingly, the government can regulate professional speech if that regulation directly advances the State's substantial interest in protecting citizens. Because the New Jersey legislature had uncovered substantial evidence that banning SOCE was necessary to protect minors from a serious risk of harm to their physical and psychological well-being, the Court concluded that the law banning SOCE counseling to minors satisfied the burden of intermediate scrutiny and was therefore constitutional.

The Court was careful to point out that regulation of speech by a licensed professional was permissible only in certain forums. The Court's holding was not meant to limit a professional from speaking in a public place or from speaking in a private conversation outside the strictures of his or her profession. Instead the Court limited the effect of its decision to a professional providing personalized services to a client based on the professional's knowledge and judgment.

Finally, the Third Circuit determined that the law did not violate the First Amendment on religious freedom grounds. The plaintiffs argued that the statute targeted counseling that is generally religious in nature. The Court looked to determine whether the statute was "neutral" and "generally applicable." The statute was found to have no mention of religion and did not target any religiously motivated conduct and therefore only triggered rational basis scrutiny. Under rational basis, the Court decided that the New Jersey statute did not violate the Plaintiffs' free exercise of their religion. The Court affirmed the District Court's decision.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/134429p.pdf

Panel: Smith, Vanaskie, and Sloviter, Circuit Judges

Argument Date: July 9, 2013

Date of Issued Opinion: September 11, 2014

Docket Number: No. 13-4429

Decided: Affirmed

Case Alert Author: Shanna Lafferty

Counsel: Mary E. McAllister, Esq., Daniel J. Schmid, Esq., Anita L. Staver, Esq., Demetrios K. Stratis, Esq., Counsel for the Appellants and Robert T. Lougy, Esq., Eric S. Pasternack, Esq., Susan M. Scott, Cousel for the Appellee and Shireen A. Barday, Esq., David S. Flugman, Esq., Andrew C. Orr, Andrew Bayer, Esq., Shannon P. Minter, Esq., Christopher S. Stoll, Esq., Amy Whelan, Esq., Counsel for Intervenor Appellee and Mordechai Biser, Esq., Ronald D. Coleman, Esq., Goetz Fitzpatrick, Esq., Jonathan C. Dalton, Esq., Kristy K. Marino, Esq., Eileen R. Ridley, Esq., Suman Chakraborty, Esq., Curtis C. Cutting, Esq., Hayley J. Gorrenberg, Esq., Lisa A. Linsky, Esq., Sandford J. Rosen, Esq., Tanya E. Kalivas, Esq., Emily B. Goldberg, Esq., Amicus Appellee

Author of Opinion: Judge Smith

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 09/15/2014 09:04 AM     3rd Circuit     Comments (0)  

September 10, 2014
  United States v. Howard - Fifth Circuit
Headline: Fifth Circuit Provides Guidance on Meaning of Federal Statute Prohibiting Attempts to Coerce Children into Sex.

Area of Law: Criminal law of attempt; 18 U.S.C. § 2422(b).

Issue Presented: Whether a person can commit the offense of attempting to induce a child to engage in sexual activity under 18 U.S.C. § 2422(b) if the person does not make travel plans to see the child; whether 18 U.S.C. § 2422(b) is unconstitutionally vague and overbroad.

Brief Summary: As part of a sting operation, a government agent impersonated a mother offering up her two minor daughters for sex. Defendant-Appellant Jeffrey Howard sent the agent sexually explicit photographs and asked that she show the photographs to the girls. He also suggested that the agent procure birth control for and perform sex acts on her daughters to get them ready for him. The government agent tried to get Howard to commit to book a flight and make other travel plans, but Howard ultimately refused. Three months later the police arrested Howard. Howard was convicted by bench trial in the U.S. District Court for the Southern District of Texas of attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). Howard was sentenced to 120-months imprisonment, the mandatory minimum. Howard appealed to the U.S. Court of Appeals for the Fifth Circuit challenging the sufficiency of the evidence and the constitutionality of the statute. The Fifth Circuit affirmed Howard's conviction and sentence and held 18 U.S.C. § 2422(b) constitutional.

Extended Summary: As part of a sting operation, a government agent impersonated a mother in Corpus Christi, Texas, offering up her two minor daughters for sex. Defendant-Appellant Howard, residing in California, unemployed and bed ridden from a back injury, sent the agent sexually explicit photographs and asked that she show the photographs to the girls. He also suggested that the agent procure birth control for and perform sex acts on her daughters to get them ready for him. But Howard did not make travel arrangements to Corpus Christi, Texas, where the fictional mother and her two daughters lived. Further, the government agent tried to get Howard to commit to book a flight and make other travel plans, instructing Howard to "take it or leave it," and Howard responded, "okay, I'll leave it." Three months later the police arrested Howard in California. Howard was convicted by bench trial in the U.S. District Court for the Southern District of Texas of attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). At the close of the government's case in chief, Howard moved for a directed verdict. Howard argued the government did not prove that he took a "substantial step" because his conduct amounted to mere preparation. The district court orally rejected Howard's motion for a directed verdict. Howard was sentenced to 120-months imprisonment, the mandatory minimum. Howard appealed to the U.S. Court of Appeals for the Fifth Circuit.

Howard sought reversal of his criminal conviction on two grounds. First, Howard argued there was insufficient evidence to support his conviction for violation of § 2422(b) because he did not take a "substantial step" toward enticing a minor to have illegal sex. Second, Howard contended the "attempt" provision of § 2422(b) is unconstitutionally vague and overbroad because it criminalizes free speech.

Sufficiency of the Evidence: The "substantial step" approach asks whether a person purposefully does or omits to do anything that is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. Acts that are merely preparatory are not enough. To determine whether Howard's conduct crossed the line between preparation and attempt, one must define the conduct that § 2422(b) criminalizes. Section 2422(b) does not require that the sexual contact occur but only that the defendant sought to persuade the minor to engage in that contact; it criminalizes an intentional attempt to achieve a mental state - a minor's assent - regardless of the accused's intentions vis-à-vis the actual consummation of sexual activities with the minor. Howard argued that his actions were mere preparation because he made no firm travel plans. The Fifth Circuit had already held that travel to a meeting place is sufficient to establish attempt, but it had never held that travel or plans to travel are necessary. The Fifth Circuit and other circuits' case law supports the rule that grooming behavior plus other acts strongly corroborative of intent to entice illegal sex - such as detailed discussions to arrange a meeting with the minor victim - can suffice to establish a substantial step under § 2422(b). The Fifth Circuit disagreed with the district court's conclusion that Howard took a substantial step toward enticing a minor to engage in illegal sex simply by sending a sexually explicit photograph of himself and asking that it be shown to the girls. The Fifth Circuit also rejected Howard's argument that travel or a definite plan to travel is required to sustain a conviction under § 2422(b). However, the Fifth Circuit held that that a reasonable trier of fact could conclude beyond a reasonable doubt that Howard's conduct approached the line between despicable lawful conduct and criminal attempt - through his sexually explicit conversations, transmission of sexual photographs, and discussion of specific travel details - and crossed it when he instructed the undercover police officer to perform sex acts on and procure birth control for the girls to get them ready for him. The finding of criminal attempt in this case was a close call, and the Fifth Circuit expressed its hope that this case represents the outer bounds of cases the government chooses to prosecute under § 2422(b). The Fifth Circuit affirmed Howard's conviction and sentence.

Constitutional Challenge: Howard challenged the constitutionality of § 2422(b) on two grounds. He asserted (1) that the term "attempt" is unconstitutionally vague and (2) that § 2422(b) is unconstitutionally overbroad because it criminalizes protected speech in violation of the First Amendment. The government argued § 2422(b) is not unconstitutionally vague or overbroad, noting that the Second, Third, Sixth, Ninth, Tenth, and Eleventh Circuits have analyzed the statute and rejected similar constitutional challenges. The Fifth Circuit agreed with the government and held § 2422(b) constitutional.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/13/13-40767-CR0.pdf

Panel: Circuit Judges Higginbotham, Jones, and Prado

Argument Date: 7/9/2014

Date of Issued Opinion: 9/9/2014

Docket Number: No. 13-40767

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Eileen K. Wilson, AUSA, for Plaintiff-Appellee United States; Simon Brian Purnell, for Defendant-Appellant Howard.

Author of Opinion: Judge Prado

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 09/10/2014 09:28 PM     5th Circuit     Comments (0)  

September 8, 2014
  U.S. v. Salahuddin - Third Circuit
Headline: No Overt Act Required for Conviction Under the Hobbs Act

Area(s) of Law: Criminal Law

Issues Presented: Does conviction for conspiracy under § 1951 of the Hobbs Act require an overt act?

Brief Summary: Defendants Ronald Salahuddin and Sonnie Cooper were both convicted of conspiracy to commit extortion under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Defendants raised several issues on appeal, the most important of which dealt with whether a conspiracy conviction under the Hobbs Act requires an overt act. The Court rejected this argument, finding that there is no over act requirement for a conviction of conspiracy under the Hobbs Act. After rejecting their remaining arguments, the Third Circuit affirmed the convictions of both Defendants.

Extended Summary: Defendant Ronald Salahuddin was the Deputy Mayor for Public Safety in Newark, New Jersey and Defendant Sonnie Cooper owned and operated several New Jersey businesses, including a demolition business called Cooper Brothers Trucking. During his time in public office, Salahuddin allegedly conspired to use his official position to obtain charitable and political contributions and to direct Newark demolition contracts to Cooper. Evidence presented at trial in the District Court of New Jersey suggested that Salahuddin was a "silent partner" in Cooper Brothers Trucking.

A grand jury in Trenton, New Jersey returned a five-count indictment against Defendants. Following a trial, the jury found them guilty only on Count 1 - conspiracy to commit extortion under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). On appeal, the Court first addressed Defendant Salahuddin's claim that an overt act is required for a Hobbs Act conspiracy conviction, which was an issue of first impression in the Third Circuit. The Court looked to Supreme Court precedent which explained that "if a statutory text is modeled on § 371, the general conspiracy statute, 'it gets an overt-act requirement,' but if it is modeled on the Sherman Act, 15 U.S.C. § 1, which omits any express overt-act requirement, 'it dispenses with such a requirement.'" This is commonly known as the Whitfield test. The Court reasoned that because the statute omits any express over-act requirement here, one was not required in order to sustain a conspiracy conviction.

The Court rejected Defendant's attempt to distinguish the Hobbs Act from the Whitfield test because, according to Defendant, the statute was not "plain and unambiguous." The Court reasoned that the Supreme Court "did not establish that a statute must be plain and unambiguous as a precondition to the application of [the Whitfield test]." The Court further explained that § 1951 of the Hobbs Act is, in fact, plain and unambiguous. The Court ultimately concluded that the language of § 1951 was comparable to the language of the Sherman Act. As a result, under the Whitfield test, the Court joined the First, Fourth, Second, and Eleventh Circuits in finding that there is no overt act requirement for a conspiracy conviction under the Hobbs Act. The Court then rejected Defendants' remaining arguments and affirmed the district court's judgments of conviction for both Defendants.
To read the full opinion, please visit: http://www2.ca3.uscourts.gov/opinarch/131464p.pdf.

Panel (if known): Fisher, Cowen, and Tashima, Circuit Judges

Argument Date: June 10, 2014

Date of Issued Opinion: September 3, 2014

Docket Number: No. 13-1751

Decided: Affirmed.

Case Alert Author: Aaron Spencer

Counsel: Counsel for the Appellant: Thomas R. Ashely, Esq., (Argued); Counsel for the Appellees: Alan L. Zegas, Esq. (Argued), Mark E. Coyne, Esq., and David W. Feder, Esq.

Author of Opinion: Judge Fisher

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/08/2014 12:59 PM     3rd Circuit     Comments (0)  

  USA v. Kamaal Mallory - Third Circuit
Headline: Third Circuit holds that where an exigency exception exists to justify a warrantless search, that exigency dissipates when the suspect is found and placed into custody and suppression of an illegal firearm found subsequent to the suspect's arrest is therefore warranted.

Area of Law: Criminal Procedure

Issues Presented: Is a search warrant required where a suspect was found and arrested pursuant to the exigency exception, but after the suspect was firmly in custody another search produced an illegal firearm?

Brief Summary: In the middle of the night, Defendant Mallory and friends were outside his stepmother's home when a police officer pulled up to the scene. One of Defendant's friends caused a disturbance and was taken into custody. More officers arrived after a man was observed carrying a firearm. Later identified as Defendant, the man with the firearm ran into his stepmother's house. The officers conducted a search for both Defendant and the firearm. Police found Defendant in the home unarmed, and they arrested and handcuffed him. Before escorting Defendant out of the house, the police conducted a final search of the doorway and located the illegal firearm.

Finding that this case fell just outside the Fourth Amendment's exception to warrantless search and seizure, the Third Circuit held that the exigencies that existed while in pursuit of Defendant dissipated when he was apprehended. As such, the warrant requirement reattached to any further search and seizure. The subsequent search that produced the gun was, therefore, in violation of the Fourth Amendment and properly suppressed. The Court affirmed the district court's decision.

Extended Summary: In the early morning hours of January 15, 2012, Defendant and several family members were at Defendant's stepmother's home. Defendant did not live at his stepmother's home full-time but he and his two daughters often stayed with her. At around 2:00 a.m., Defendant was standing outside when an officer approached in a police cruiser. A minor incident occurred that ended in Defendant's stepbrother being briefly detained. Two other officers, Officers Hough and Lynch, received a dispatch that there was a group of men outside on the same block, one of which had a gun. The officers saw that Defendant matched the description on the dispatch and a chase ensued for Defendant. Defendant ran into his stepmother's house. The officers forced entry into the home with weapons drawn and ordered the other occupants to exit. Two other officers then arrived on the scene, totaling at least five officers. The officers searched the house top to bottom, looking in places where either a person or a firearm could be hidden. The officers found Defendant in a downstairs bathroom, arrested and handcuffed him, and began to take him out the front door. He did not combat or resist arrest. After his arrest but before he was ushered out the front door, the officers realized that the area behind the front door had not been searched. Upon searching the area, the police recovered a revolver located behind the front door.

Defendant was indicted on one count of possession of a firearm by a convicted felon. Defendant moved to suppress the gun. The district court granted the motion to suppress and the Government appealed. The question on appeal was "whether, after police had located and secured Defendant, an exigency remained that justified Officer Hough's search behind the door, which produced the revolver."

Before the Court could make a determination on the merits, the Court was faced with a matter of first impression as to what standard should be used when reviewing the exigent circumstances exception to a warrant for search and seizure. The Third Circuit drew a distinction between when a district court makes factual findings supporting a conclusion that exigent circumstances exist and whether the historical facts of a warrantless search or seizure meet the legal test of exigency. The Court held that the former must be reviewed with a clearly erroneous standard and the latter with a de novo standard. The Court reasoned that "[w]hen a district court makes factual findings supporting a conclusion that exigent circumstances existed, it makes the type of credibility determinations that district courts are best suited to make, and accordingly we will defer to them unless they are clearly erroneous. But whether the historical facts of a warrantless search or seizure meet the legal test of exigency is the type of question that involves the careful consideration of legal precepts and the values that underlie them, questions that favor de novo review." The Court thus reviewed de novo the district court's decision that the previously-existing exigency had dissipated.

It was undisputed that the police officers had probable cause and exigent circumstances that justified the officers' entry into the home and subsequent search for Defendant. Defendant argued that the exigency no longer existed when Defendant was found. The Government asserted that the exigency continued past Defendant's discovery because the search for the gun was necessary first to protect the officers and to prevent escape and second to prevent the weapon from being moved and hidden while the warrant was being procured.

The Court applied several factors to determine whether the search was justified by a reasonable belief that it was necessary to protect officer safety. Although not an exhaustive list, the Third Circuit looked at the following factors: "how soon after the alleged offense the search occurred; whether the alleged offense was violent in nature; whether the search occurred prior to or contemporaneous with Defendant's apprehension; whether the premises as a whole had been secured, or whether it was possible that unknown individuals remained in the house; whether Defendant or any of his family members had acted in an aggressive or threatening manner toward the police; whether other members of the family were free to move about the house unsupervised by an officer; how easily Defendant or a family member could have obtained and used the firearm; and the degree of intrusiveness of the search." The Court found that the exigency had dissipated due to the presence of many officers, the fact that Defendant did not combat or attempt to resist arrest, the house had been thoroughly swept before they found Defendant, and there was no evidence that Defendant's family posed a threat to the officers. The Court explained that those factors demonstrated that any exigent circumstances had dissipated by the time Officer Hough recovered the gun, rendering the warrantless search unjustified. Thus, the Third Circuit affirmed the decision of the district court.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/132025p.pdf

Panel (if known): Fuentes and Fisher, Circuit Judges; Stark, Delaware District Judge (sitting by designation)

Argument Date: January 22, 2014

Date of Issued Opinion: September 3, 2014

Docket Number: No. 12-0379

Decided: Affirmed

Case Alert Author: Antoinette Snodgrass

Counsel: Virgil B. Walker, Esq., and Robert A. Zauzmer, Esq. for the Appellant, Office of United States Attorney; Catherine C. Henry, Esq., Joseph M. Miller, Esq., and Brett G. Sweitzer, Esq. for the Appellee, Federal Community Defender Office for the Eastern District of Pennsylvania

Author of Opinion: Judge Fisher

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/08/2014 12:57 PM     3rd Circuit     Comments (0)  

  USA v. David George Husmann - Third Circuit
Headline: Third Circuit holds that the act of placing pornography onto a shared computer that is available to other users of a file-sharing network does not constitute distribution of child pornography where no proof was offered that any person had actually downloaded or obtained the materials.

Area of Law: Criminal Law

Issues Presented: Does the act of placing child pornography materials in a shared computer folder, available to other users of a file-sharing network, constitute distribution of child pornography?

Brief Summary: Defendant David George Husmann was on supervised release for a child pornography conviction when his probation officer was alerted that his computer was being used for child pornography. After an FBI search, pornographic images and a video were found and many of those illicit files had been uploaded onto file-sharing networks. The Government did not produce evidence that any person actually downloaded or viewed the files that Defendant uploaded. A jury found Defendant guilty of possession and distribution of child pornography. Defendant appealed the verdict and argued that merely placing the files onto a file-sharing network does not constitute distribution. Declining to adopt the Sentencing Guideline's definition of distribution, the Third Circuit held that the ordinary meaning of distribute should apply, which requires the actual transfer or downloading of the illicit materials to another person. The Third Circuit thus found that the District Court committed plain error in sentencing Defendant. The Court held that "[a] conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder." The Court therefore vacated Defendant's convictions for distribution of child pornography under 18 U.S.C. § 2252(a)(2) and remanded for resentencing on the remaining count of possession.

Extended Summary: While on supervised release for a child pornography conviction, the probation office received an alert that Defendant's computer had accessed pornographic websites and images. Defendant's probation officer found him at his home viewing an image of a girl between ages six and eight posed in a bathing suit. The probation officer seized four flash drives from Defendant and found pornographic images on them. The FBI then obtained a search warrant and seized computers and computer-related items from Defendant's home. Child pornography images and a movie were found on the devices as well as two file-sharing programs. Illicit files had also been uploaded onto the file-sharing sites from Defendant's computer. At trial, Defendant was found guilty of one count of possession and three counts of distribution of child pornography. Combining the verdict with his prior child pornography convictions, Defendant was sentenced to twenty years imprisonment, several months over the calculation for his recommended guideline.

On appeal, Defendant argued that placing child pornography onto a shared folder available to other users does not constitute distribution under 18 U.S.C. § 2252(a)(2). Defendant also argued that the use of his prior conviction to raise his sentence five levels and his ultimate sentence of twenty years were procedurally and substantively unreasonable.

In order to define the term "distribute," the Court looked to dictionaries, statutory context, and case law. The Third Circuit declined to adopt the definition of "distribution" set forth in the Sentencing Guidelines and held that the ordinary meaning of distribute requires that the child pornography actually be transferred or downloaded by another person. Because the Government did not produce any evidence showing that another person downloaded Defendant's shared files, the Court found that this element of the statute was not met. The Third Circuit, thus, vacated Defendant's convictions for distribution of child pornography and remanded the case for resentencing on Defendant's remaining count of possession of child pornography.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/132688p.pdf

Panel (if known): Fuentes, Greenberg, and Van Antwerpen, Circuit Judges

Argument Date: March 24, 2014

Date of Issued Opinion: September 3, 2014

Docket Number: No. 12-0141

Decided: Vacated and reversed

Case Alert Author: Antoinette Snodgrass

Counsel: Zane David Memeger, Esq., Robert A. Zauzmer, Esq., and Michelle Rotella, Esq. for Appellee, United States of America; Theodore C. Forrence, Jr., Esq. and Kenneth C. Edelin, Jr., Esq. for Appellant David George Defendant

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/08/2014 12:53 PM     3rd Circuit     Comments (0)  

  Hernandez-Cruz v. Attorney General USA - Third Circuit
Headline: Pennsylvania Conviction for Endangering the Welfare of a Child Does Not Constitute a Crime Involving Moral Turpitude - Pennsylvania EWOC Offenders Are Still Eligible for Cancellation of Removal Review

Area of Law: Immigration and Criminal Law

Issues Presented: Does a Pennsylvania Conviction for Endangering the Welfare of a Child Constitutes a Crime Involving Moral Turpitude?

Brief Summary: Defendant Luis Alberto Hernandez-Cruz, a Mexican citizen, entered the United States without inspection in 1998. Eleven years later, he pled guilty to simple assault and endangering the welfare of a child. The Department of Homeland Security eventually issued a Notice to Appear, charging that Defendant was removable as an alien present in the United States without being admitted or paroled and was removable as an alien convicted of a crime involving moral turpitude (CIMT). Defendant conceded that he was removable as an alien present in the United States without being admitted or paroled, but denied that he was removable as an alien convicted of CIMT. He subsequently applied for cancellation of removal. The Immigration Judge (IJ) concluded that Defendant was removable as an alien convicted of CIMT. The IJ determined that simple assault was not a CIMT, but that endangering the welfare of a child constituted a CIMT, and thus made Defendant statutorily ineligible for cancellation of removal. Defendant appealed the decision to the Board of Immigration Appeals (BIA). The BIA affirmed the IJ's rulings. Defendant filed a petition for review. The Third Circuit granted review of the BIA's conclusions and held that Pennsylvania child endangerment conviction does not constitute CIMT. The Third Circuit reversed the decision of the BIA and remanded for further proceedings.

Extended Summary: Defendant, a thirty-four year old citizen of Mexico, entered the United States without inspection in 1998. Eleven years later, he pled guilty in the Court of Common Pleas of Lebanon County, Pennsylvania to simple assault and endangering the welfare of a child. The charges stemmed from an incident in which Defendant struck his stepson, who was ten years old at the time. A few months after the guilty plea, the Department of Homeland Security issued a Notice to Appear, charging that Defendant was removable as an alien present in the United States without being admitted or paroled. DHS later filed additional charges that alleged Defendant was removable as an alien convicted of a crime involving moral turpitude (CIMT) for his simple assault and endangering the welfare of a child convictions. Defendant conceded to removability as an alien present in the United Stats without being admitted or paroled but denied removability as an alien convicted of a CIMT. Defendant subsequently applied for cancellation of removal as a nonresident, asserting that his United States citizen children would experience exceptional and extremely unusual hardship upon his removal.

The Immigration Judge (IJ) concluded that Defendant was removable as an alien present in the United States without being admitted or paroled. The IJ also concluded Defendant was removable as an alien convicted of CIMT. Having determined that Defendant was an alien convicted of CIMT, the IJ concluded that Defendant was statutorily ineligible for cancellation of removal and denied his application. The IJ also concluded that Defendant had successfully established that his removal would result in extreme and unusual hardship to his children, and had Defendant not been convicted of a CIMT, the IJ would find Defendant statutorily eligible for cancellation of removal and would grant his application.

Defendant appealed the decision to the Board of Immigration Appeals (BIA). The BIA affirmed the IJ's rulings that Defendant's simple assault conviction was not a CIMT but that the endangering the welfare of a child conviction was a CIMT. Thus, the BIA also found Defendant statutorily ineligible for cancellation of removal. Defendant filed a petition for review.

The Third Circuit concluded that Pennsylvania's child endangerment statute prohibits a broad range of conduct, and since the least culpable conduct punishable under the statute was not morally turpitudinous, Defendant's child endangerment conviction does not constitute CIMT. The Third Circuit used examples that would qualify as endangering the welfare of a child but would not be considered morally turpitudinous. Examples included leaving a child unattended in a vehicle for several minutes or negligently placing an infant in a bathtub with hot water that caused second or third degree burns. The Third Circuit reasoned that though these offenses are condemnable, they are not morally turpitudinous. Therefore, the Third Circuit held Pennsylvania's endangering the welfare of a child conviction does not constitute a CIMT.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133288p.pdf

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

Argument Date: June 24, 2014

Date of Issued Opinion: September 4, 2014

Docket Number: No. 13-3288

Decided: Reversed and remanded for further proceedings

Case Alert Author: Katie Cooper Davis

Counsel: Jamie Jasso, Esq. for the Petitioner Luis Alberto Hernandez-Cruz; Stuart F. Delery, Esq., Shelley R. Goad, Esq., Regina Byrd, Esq., Katharine E. Clark, Esq for Respondent Attorney General Of The United States Of America.

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/08/2014 12:50 PM     3rd Circuit     Comments (0)  

  Williams v. BASF Catalysts LLC--Third Circuit
Headline: Asbestos Cover-up Uncovered

Area of Law: Tort

Issues Presented: (1) Did the district court err in dismissing a fraud claim because the New Jersey litigation privilege immunized the defendants; (2) Did the district court err in dismissing the fraudulent concealment claim because the plaintiff did not prove that she would have prevailed in the merits of her asbestos-injury case; and (3) Did the district court err in concluding that it would be unable to order the relief requested because it would be deciding matters to be raised in other litigation.

Brief Summary: Plaintiffs brought suit alleging that Defendants covered up the existence of asbestos in a talc product that was marketed to the public as an asbestos substitute. According to the complaint, Defendants destroyed and hid evidence of asbestos in the product. They also fabricated evidence that asbestos did not exist in the product. Plaintiffs brought claims for fraud and fraudulent concealment. They claimed that because of the cover-up they were forced to settle or dismiss lawsuits for asbestos-injury that they otherwise would have pursued.

The Third Circuit held that the district court erred in dismissing the fraud claim and in determining that the New Jersey litigation privilege immunized the defendants. The Court also held that the district court erred in dismissing the fraudulent concealment claim. The Court explained that plaintiff did not need to prove that she would prevail on her asbestos-injury claim but only that Defendants' conduct affected the size or existence of the damages awarded at trial. Finally, the Court determined that the district court could grant relief, including declaratory and injunctive relief, for the fraud and fraudulent concealment claims but that to the extent the requested relief invited the district court to decide matters to be raised in other litigation, the issues were not ripe. Thus, declaratory and injunctive relief to enjoin Defendants from invoking res judicata, laches, statute of limitations doctrines, or other similar issues in future proceedings could not be granted. The Court reversed in part, affirmed in part, and remanded for further proceedings.

Extended Summary: This putative class action lawsuit is brought by survivors of original asbestos injury suits against Defendants Engelhard and its successor BASF Catalyst LLC based on the alleged actions of BASF and Cahill Gordon & Reindel to prevent asbestos injury victims from obtaining recoveries for their injuries. Plaintiffs alleged that Defendants destroyed and concealed documents that revealed that there was asbestos in their talc product. Plaintiffs alleged that Defendants' fraud caused them to settle or dismiss their initial claims that they would otherwise have pursued.

According to the complaint, Defendants mined talc and tests concluded that this talc contained asbestos. Defendants ignored those findings and represented to customers, the industry, and the government that the talc was free from asbestos. The survivors of a former employee of Defendant sued for asbestos-related injury and Defendant law firm represented the company in the suit. That litigation produced tests and results confirming that the talc had asbestos in it. One of Defendant's executives at the time gave a deposition in which he confirmed knowledge of asbestos in the talc. The case was settled and the agreement included a confidentiality clause which prohibited the parties from discussing the case or sharing the evidence. After that litigation ended, the company issued a memo to its employees that they should collect for disposal all documents relating to the talc because "it is the policy of Defendants Corporation to avoid undue accumulation of documents that are no longer likely to be needed in our business operations." These documents were either destroyed or hidden. Plaintiffs also alleged that the company, with the help of its counsel, manufactured favorable evidence, which was used to frustrate future asbestos injury claims and resulted in dismissal or smaller settlements of the cases.

The alleged cover up was discovered when a former research chemist for Defendants testified, in a New Jersey case, that he had discovered asbestos in the talc and was later instructed to turn over all his documents related to the talc. During discovery into what documents Defendants had destroyed or concealed during litigation, documents were found that showed tests from multiple years confirming that there was asbestos in the talc.

The Court determined that the district court erred in dismissing the fraud claim based on the New Jersey litigation privilege. The Court reasoned that the privilege has never been used to shield systematic fraud directed at the integrity of the judicial process and should not be used for that purpose. The privilege was intended to protect attorneys from civil liability arising from words used in the course of judicial proceedings, promote open communication, and provide the parties an opportunity to explore the truth without fear of recrimination. Defendants thwarted these goals by allowing deceit and deception and permitting false and misleading statements in the course of judicial proceedings. The Court analyzed decisions of the New Jersey Supreme Court on the issue and declined to extend the privilege to false statements and evidence given by Defendants to plaintiffs. Because the district court erred in extending the privilege, the district court's dismissal of the fraud claim was reversed.

The Court next turned to the issue of fraudulent concealment. The Court focused on the requirement that the plaintiff was "damaged in the underling action by having to rely on an evidential record that did not contain the evidence defendant concealed." Looking to New Jersey law, the Court rejected Defendants' argument that the plaintiffs would have to show they would have prevailed in the underlying action. Instead, the Court reasoned that under New Jersey law, it is enough to show that the conduct affected the size or existence of the damages awarded at trial and that the plaintiff can recover whether he was successful in the original litigation or not. The Court explained that it was sufficient that plaintiffs alleged that they received diminished recovery, the lawsuits were impaired, or that they expended time and money to attempt to litigate around the spoliated evidence.

The Court affirmed district court's determination that certain declaratory and injunctive relief requested by plaintiffs could not be granted because those issues were not ripe. The Court determined that plaintiffs could not seek determinations of legal issues anticipated in subsequent proceedings. It, thus, affirmed the district court's dismissal of Plaintiffs' claims that sought to enjoin Defendants from invoking res judicata, laches, statute of limitations doctrines or other similar issues in future state court proceedings.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/131089p.pdf

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

Argument Date: March 13, 2014

Argument Location:

Date of Issued Opinion: September 3, 2014

Docket Number: 13-1089

Decided: Reversed in part, affirmed in part, and remanded for further proceedings

Case Alert Author: Cheri Snook

Counsel: Michael Coren, Esq., Harry M. Roth, Esq., Christopher M. Placitella, Esq., Jeffrey M. Pollock, Esq., for appellants; Stephen M. Orlofsky, David C. Kistler, Eugene F. Assaf, Esq., Daniel A Bress, Esq., Peter A. Farrell, Esq., Michael F. Williams, Esq., for appellee BASF Catalysts LLC, Robert E. Ryan, Esq., Marc D. Haefner, Esq., Craig S. Demareski, Esq., John K. Villa, Esq., David S. Blatt, Esq., Kannon K. Shanmugam, Esq., Matthew B. Nicholson, Esq., Richard A. Olderman, Esq., for appellees Cahill Gordon & Reindel LLP, Eric Tunis, Esw., Olivier Salvagno, Esq., for appellee Thomas D. Halket, Walter F. Timpone, Esq., Walter R. Krzastek, Jr., Esq., Michael B. Devins, Esq., for appellee Glen Hemstock, Kevin H. Marino, Esq., John A. Boyle, Esq., for appellee Arthus A. Dornbusch, II

Author of Opinion:Judge Fuentes

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/08/2014 12:48 PM     3rd Circuit     Comments (0)  

September 1, 2014
  USA v. Christopher Erwin - Third Circuit
Headline: Third Circuit Holds That Government Is Excused From Its Plea Agreement Obligations When a Criminal Defendant Violates the Agreement by Filing an Appeal

Areas of Law: Criminal Law

Issues Presented: What remedy is available to the Government when a criminal defendant knowingly and voluntarily executes a waiver of his right to appeal in return for promises from the Government and then violates his plea agreement by filing an appeal?

Brief Summary:
This case presents a question of first impression -- what remedy is available to the Government when a criminal defendant violates the plea agreement, including a waiver of right to appeal, by filing an appeal. The Court concluded that Defendant's appeal was within the scope of his appellate waiver, to which he knowingly and voluntarily agreed. Therefore, Defendant breached the plea agreement by appealing, and the appropriate remedy for this breach was specific performance of the agreement's terms. In this case, the agreement called for de novo resentencing in which the Government no longer has the obligation to request downward departure from the Sentencing Guidelines. The Court reasoned that de novo resentencing was just and consistent with the basic principles of contract law. Further, it complied with the plain language of the plea agreement. Accordingly, the Court vacated Defendant's sentence and remanded for de novo resentencing.

Extended Summary:

Christopher Erwin ("Defendant") managed a large-scale oxycodone distribution ring that operated throughout the State of New Jersey as well as other locations. On May 9, 2011, the Government filed a criminal complaint against Defendant and twenty-one co-conspirators in the United States Court for the District of New Jersey. The complaint charged each defendant with conspiracy to distribute and possess with intent to distribute oxycodone, a Schedule II controlled substance.

On May 8, 2012, Defendant executed a written plea agreement with the Government. Defendant agreed to plead guilty to conspiracy in return for the Government's agreement not to bring further criminal charges against Defendant in connection with the conspiracy. The parties agreed that the Sentencing Guidelines offense level applicable to Defendant was 39, and that a sentence with that Guideline range was reasonable. Additionally, Defendant voluntarily waived the right to file any appeal. The agreement dictated that if Defendant violated any provision of the plea agreement, the Government would be released from its obligations under the plea agreement. Following a letter from the Government to the court asking to depart downward from the otherwise applicable Guidelines range because of Defendant's cooperation with the Government, the court imposed a within-Guidelines sentence of 188 months, three years of supervised release, and a $100 special assignment.

Defendant timely appealed, arguing that the District Court's use of offense level 39 as its starting point for downward departure was in error because the statutory maximum was 240 months, a sentence less than the 262- to 327-month Guidelines range for offense level 39 and criminal history category of I. Defendant averred that this deprived him of the benefit of his plea bargain and the full five-level downward departure the District Court agreed he would receive. The Government did not cross-appeal but contended that the Court should vacate and remand for resentencing where it would modestly increase Defendant's sentence in light of his breach of the plea agreement.

The Court rejected Defendant's argument that the District Court deprived him of his due process right to receive the full benefit of his bargain with the Government. The Court held that Defendant's due process claim failed because it found that the record did not indicate any promise from the Government that it would specifically request a five-level downward departure, much less that the court would apply the departure to the statutory maximum.

The Court then addressed the appropriate remedy for the Government as a result of Defendant's breach of the plea agreement. The Government argued that merely dismissing Defendant's appeal and affirming his sentence would not be sufficient because Defendant's breach incurred substantial costs for the Government, and because it would not adequately deter other defendants from similar breaches. The Court explained that plea agreements, as bargained-for exchanges, are evaluated by contracts standards. Reviewing Defendant's sentence de novo, the Court looked to the plain meaning of the agreement. The Court found that the relevant language was unambiguous and that, by waiving his right to appeal, Defendant relinquished the right to appeal and promised not to exercise it. Citing contract law, the Court explained that a party should be prevented from benefitting from its own breach. The Court reasoned that Defendant received the full benefit of the bargain, while the Government was forced to devote valuable resources to litigating an appeal that should never have been filed. Accordingly, the Court agreed with the Government that resentencing was warranted in this case. Therefore, the Court vacated Defendant's sentence and remanded for resentencing where the Government will be relieved of its obligation to seek a downward departure.

The Court concluded that de novo resentencing was just and consistent with basic principles of contract law and the plain language of the plea agreement.

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

Panel (if known): McKee, Chagares, and Nygaard, Circuit Judges

Argument Date: May 20, 2014

Date of Issued Opinion: August 26, 2014

Docket Number: No. 13-3407

Decided: Vacate judgment of sentence and remand to the District Court for resentencing before a different judge

Case Alert Author: Jaclyn Poulton

Counsel:
Counsel for Appellants: Jeffrey M. Brandt, Esq.
Counsel for Appellee: Mark E. Coyne, Esq., Norman Gross, Esq.

Author of Opinion: Judge Chagares

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/01/2014 10:05 AM     3rd Circuit     Comments (0)  

  Collette Davis v. Abington Memorial Hospital - Third Circuit
Headline: Third Circuit Holds That To State a Plausible Fair Labor Standards Act Overtime Claim, a Plaintiff Must Sufficiently Allege Uncompensated Time In Excess of Forty Hours of Work in a Given Workweek.

Areas of Law: Employment; Civil Procedure

Issue Presented: Whether plaintiffs alleged a plausible Fair Labor Standards Act overtime claim

Brief Summary:
The plaintiffs, nurses and other patient-care professionals, brought suit against their employers for violations of the Fair Labor Standards Act, as well as for violations of other state and federal employment statutes. The plaintiffs alleged that the defendant healthcare systems and affiliates implemented timekeeping and pay policies that failed to compensate them for all hours worked. The District Court dismissed the plaintiffs' third amended complaints, finding that the complaints did not state a plausible claim. The Third Circuit Court, focusing on the FLSA overtime claim, held that to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege that he worked forty hours in a given workweek as well as some extra hours that were not compensated. Accordingly, the Court affirmed the District Court's dismissal of the plaintiffs' complaints.

Extended Summary:
This is an appeal from the District Court's order dismissing the third amended complaint in five cases. Each of these cases is a putative collective and class action which allege that the plaintiffs' employers implemented timekeeping and pay policies in violation of the Fair Labor Standards Act ("FLSA"). The plaintiffs are nurses and other patient-care professionals acting as representatives in class action suits. The defendants are their alleged employers.

The plaintiffs allege that the defendants maintained three unlawful timekeeping and pay policies. The first, the "Meal Break Deduction Policy," dictates that the timekeeping system automatically deducted thirty minutes of pay daily for meal breaks without ensuring that employees actually received a break. The "Unpaid Pre- and Post-Schedule Work Policy" prohibited employees from recording time worked outside of their scheduled shifts. The "Unpaid Training Policy" stated that employees would not be paid for time spent at "compensable" training sessions. The plaintiffs alleged that because of these policies they were not compensated for hours worked, both under and in excess of forty hours per week.

The plaintiffs filed complaints in the United States District Court for the Eastern District of Pennsylvania asserting violations of the FLSA and several other employment statutes. The plaintiffs' third amended complaints sought relief solely under the FLSA and Pennsylvania law. The District Court granted the defendants' motions to dismiss on the grounds that the plaintiffs failed to plausibly allege employer-employee relationships between the plaintiffs and all of the defendants, or that any of the named plaintiffs had worked overtime and were not compensated.

The Third Circuit Court focused on whether the plaintiffs alleged a plausible FLSA overtime claim. The District Court found that the plaintiffs' overtime claim was factually inadequate because the plaintiffs failed to allege a single specific instance in which a named plaintiff worked overtime and was not compensated for that work. The plaintiffs argued that they were not required to plead to exact dates and times that they worked overtime. While some courts have held that to recover overtime compensation under the FLSA, an employee must show the amount and extent of his overtime work as a matter of just and reasonable inference, other courts have found for a more lenient approach, by which a FLSA complaint will survive dismissal so long as it alleges that the employee worked more than forty hours in a week and did not receive overtime compensation.

The Third Circuit adopted the approach set forth in Lundy v. Catholic Health System of Long Island, Inc. In Lundy, the court held that to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege that he worked forty hours of work in a given workweek as well as some uncompensated time in excess of that forty hours. A plaintiff's allegations that could theoretically put her over the forty-hour mark will not suffice. While a plaintiff need not identify the exact dates and times she worked overtime, a plaintiff must at least claim that she "typically" worked forty hours per week, worked extra hours during such a forty-hour week, and was not compensated for extra hours beyond forty hours.
While the plaintiffs alleged that they "typically" worked shifts totaling between thirty-two and forty hours per week and "frequently" worked extra time, none of the plaintiffs indicated that they in fact worked hours in excess of forty hours. Therefore, the District Court did not err in dismissing the plaintiffs' claims for overtime under the FLSA.

The Court also briefly addressed the plaintiffs' contention that the District Court erred in denying them another opportunity to amend the complaint. The Court reasoned that the District Court had discretion to deny the plaintiffs leave to amend because they were on notice as to the deficiencies in their complaints but chose not to resolve them.

Accordingly, the Court affirmed the District Court's dismissal of the plaintiffs' complaints for failure to state a claim. To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/123512p.pdf

Panel (if known): Chagares, Shwartz, and Aldisert, Circuit Judges

Argument Date: February 10, 2014

Date of Issued Opinion: August 26, 2014

Docket Number: No. 12-3512

Decided: Affirmed

Case Alert Author: Jaclyn Poulton

Counsel:
Counsel for Appellants: Jared K. Cook, Esq., Michael J. Lingle, Esq., & J. Nelson Thomas, Esq.
Counsel for Appellee: Kristen E. DiMaria, Esq., Julie A. Donahue, Esq., Andrea M. Kirshenbaum, Esq., Christopher J. Moran, Esq., Jan P. Levine, Esq., Andrea T. Ohta, Esq., Sara B. Richman, Esq., Robin P. Sumner, Esq., Justin J. Williams, Esq., Eric J. Bronstein, Esq., John M. Elliott, Esq., Mark J. Schwemler, Esq., Gregory S. Voshell, Esq., Sean P. McDevitt, Esq., Kali T. Wellington-James, Esq., Larry R. Wood, Jr., Esq., Alexandra Bak-Boychuk, Esq., Shannon D. Farmer, Esq., David S. Fryman, Esq., John B. Langel, Esq., & Rebecca L. Massimini, Esq.

Author of Opinion: Judge Chagares

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/01/2014 10:01 AM     3rd Circuit     Comments (0)  

  D.E., a minor, on his behalf, by his parents Maria English; Ronald Sheffy v. Central Dauphin School District - Third Circu
Headline: A party who receives a favorable ruling on an IDEA claim is not required to appeal that decision in order to exhaust his administrative remedies before filing a federal claim to enforce the favorable ruling.

Area of Law: Education Law and Administrative Law

Issues Presented: Under the IDEA, is a party, who received a favorable award at an administrative hearing, required to appeal that favorable ruling in order to exhaust his administrative remedies before bringing a claim for enforcement of the administrative remedy in federal court?

Brief Summary: D.E. attended Central Dauphin School District ("District") from kindergarten to seventh grade. D.E. had a learning disability and emotional and behavioral problems throughout his time at the District. D.E.'s parents asked the District numerous times to evaluate D.E. and place him in the appropriate programs, almost yearly for eight years. The District, on multiple occasions, failed to properly evaluate D.E., failed to place him in proper classes, and incorrectly denied him extended summer school programs between fourth and seventh grades. Additionally, the District improperly classified D.E. as mentally retarded for two years, and placed him in an incorrect program. D.E.'s parents brought due process hearings under the Individuals with Disabilities Education Act ("IDEA"). An impartial hearing officer found in favor of D.E., ruling that the District must pay for education D.E. missed out on because of the improper practices by the District. Neither party appealed. After a year, D.E.'s parents sued in federal court to enforce the award and also brought claims under the Americans with Disabilities Act ("ADA"). The District court dismissed both claims, ruling that D.E. must exhaust all administrative remedies before bringing suit in federal court. The Third Circuit reversed the District Court's decision and reasoned that since D.E. received a favorable decision during the administrative proceedings, he had exhausted all administrative remedies because a party would not and could not appeal a completely favorable outcome.

Significance (if any):

Extended Summary: D.E. attended Central Dauphin School District ("District") from kindergarten to seventh grade. Prior to entrance, D.E's mother and father determined that D.E. needed special help in classes, and after several evaluations determined D.E. needed and was eligible for speech and language therapy. When D.E. began in the District, the District created an individualized education program ("IEP") to address these problems, but the District never placed D.E. in specialized courses. D.E.'s mother asked the school to reevaluate D.E., which was done seven months after the request. The report came to the same conclusion as D.E.'s previous evaluation and subsequently the District created a new IEP. D.E. had not acquired the skills necessary to move onto first grade and had to repeat his kindergarten year. D.E.'s mother requested an evaluation at the beginning of his second year of kindergarten, which determined that D.E. had a learning disability and needed special instruction. D.E. was placed in full-time learning support programs for his second year of kindergarten and first grade, during which time D.E. behavior became more erratic. The Parents had an external medical provider evaluate D.E., which determined D.E. as having borderline retardation, extreme difficulties with motor and visual skills, and bi-polar disorder. The District placed D.E. in full-time learning and emotional support program during second grade. D.E. regressed and was eventually diagnosed with depression. The District did not reevaluate D.E. nor place him in a behavior support program. During third grade, the District modified D.E.'s IEP to read "seriously emotionally disturbed" which is a classification associated with mental retardation. As such, they put him in a Life Skills Support program, which D.E. stayed in during third and fourth grades. When D.E.'s mother realized D.E. was identified as mentally retarded she withdrew him from the program, and the District found the designation error, fixed it, and changed his status. The District also inaccurately found D.E. to be ineligible for extended school year services for the next four years. During fifth and sixth grades, D.E.'s IEP were changed to recommend participating in regular education and D.E. was dropped from programs for his emotional and behavior needs. During seventh grade, D.E.'s teacher was not trained in giving adequate support to D.E. nor was provided his IEP to inform the teacher what was necessary to help D.E. The District did not promptly reevaluate D.E. and his evaluations were delayed.

D.E.'s parents requested a due process hearing, claiming that D.E. was deprived of a free appropriate public education ("FAPE") in violation of the Individuals with Disabilities Education Act ("IDEA") and that he was discriminated against based upon his various disabilities in violation of the Americans with Disabilities Act ("ADA"). An administrative hearing was held with an impartial hearing officer who found the District violated the IDEA. The officer also concluded D.E. was denied a FAPE for all eight years at the District. The officer ordered that D.E. receive compensatory education in the amount of one hour for each hour of school day for each year attended and fifteen hours for each of the six weeks for missed summer programs. Neither party appealed the hearing officer's order. Almost a year later, D.E.'s parents brought an action in the District Court against the District to recover monetary equivalent of the hearing officer's orders as well as compensatory damages under the ADA and IDEA. The District Court dismissed D.E.'s claims, citing D.E.'s failure to exhaust administrative remedies and the fact that there existed no evidence that the hearing officer's order required enforcement due to the unavailability of damages with respect to the IDEA claims. The District Court ruled in favor of the District on D.E.'s ADA claims because there was no evidence to prove the District intentionally discriminated against D.E. D.E. then appealed to the Third Circuit.

The Third Circuit first addressed the issue of the district court's grant of summary judgment on D.E.'s ADA claim. The Third Circuit found that the District did not intentionally discriminate against him, nor showed a deliberate indifference to his rights.

As to his IDEA claim, the Third Circuit agreed with D.E. and reversed the decision of the District Court. The Court reasoned that administrative remedies are exhausted when the party seeking to file suit received a completely favorable outcome in the administrative proceedings. The Court reasoned a party could not appeal a completely favorable outcome and such an outcome satisfies the requirement that administrative remedies first be exhausted. Additionally, the Third Circuit reasoned that D.E. was suing for nonperformance of the order by the District, and therefore, D.E.'s suit could be heard in federal court.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/131294p.pdf.

Panel (if known): Fisher, Van Antwerpen, and Tashima, Circuit Judges.

Argument Date: June 12, 2014

Argument Location: Philadelphia, PA

Date of Issued Opinion: August 27, 2014

Docket Number: No. 13-1294

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

Case Alert Author: Ilya Gomelsky

Counsel: Carolyn M. Hazard, Esq., Joel Mallord, and Brian P. Savage, Esq. for Appellant; Thomas A. Specht, Esq. for Appellee.

Author of Opinion: Fisher, Circuit Judge.

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/01/2014 09:58 AM     3rd Circuit     Comments (0)  

August 29, 2014
  Odhiambo v. Republic of Kenya
Headline: Kenyan government's assistance resettling appellant in United States as a refugee does not bring their contract dispute within the ambit of the "commercial activity" exception of the FSIA.

Area of Law: Foreign Sovereign Immunities Act

Issue Presented: Whether a suit fits within the "commercial activity" exception to the FSIA when a Kenyan national was resettled in the United States by the Kenyan government for his own protection after his role in the underlying commercial transaction was revealed.

Brief Summary: Enticed by the Kenyan government's offer of monetary awards for information about potential tax evasion, appellant, a bank employee, tipped the government off about hundreds of account holders with potential tax deficiencies. Kenya made some but not all of the reward payments to which appellant believed himself entitled. When appellant's role as an informant became public, Kenyan officials helped him move to the United States as a refugee. Appellant then brought suit against the Kenyan government in the United States District Court for the District of Columbia alleging breach of contract due to the underpayment. The district court concluded that the FSIA barred the action and dismissed.

A divided panel of the United States Court of Appeals for the District of Columbia affirmed. The panel found "the closest question" related to the third clause of the FSIA's commercial activity exception, which authorizes suit where plaintiff's claim is based upon "an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States." The court noted that its precedents had drawn "a very clear line": the requisite "direct effect" exists only when the contract establishes or necessarily contemplates the United States as the place of performance. Because Kenya had never promised reward payments in the United States, the court concluded that this case lacked a "direct effect" in the United States. The court rejected appellant's argument that Kenya's assistance in his asylum application ought to influence the inquiry, reasoning that Kenya had not promised to perform any specific obligations in the United States and that a refugee exception, however meritorious it might be, does not exist in the FSIA itself.

Judge Pillard dissented from this conclusion. She argued that a different result should obtain where the foreign government causes plaintiff to leave the country and directs him to resettle in the United States. She also argued that the majority's express or implied place-of-performance requirement conflicts with the decisions of other circuits.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...3-7100-1509948.pdf.

Panel: Griffith, Kavanaugh, and Pillard

Argument Date: April 8, 2014

Date of Issued Opinion: August 29, 2014

Docket Number: 13-7100

Decided: Affirmed

Case Alert Author: Elizabeth Earle Beske

Counsel (if known): Robert W. Ludwig, W. Clifton Holmes, and Thomas K. Kirui for appellant. David I. Ackerman and Daniel D. Barnowski for appellee.

Author of Opinion: Williams

Dissent by: Pillard

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/29/2014 01:27 PM     DC Circuit     Comments (0)  

August 26, 2014
  Sierra Club v. Jewell - D.C. Circuit
Headline: D.C. Circuit finds threat to aesthetic enjoyment of neighboring, privately-owned property is sufficient "injury in fact" to confer Article III standing.

Area of Law: Standing; Federal Courts

Issue Presented: Whether environmental and historic preservation groups have Article III standing when their alleged injury is to an aesthetic interest in viewing property that they have no legal right to access.

Brief Summary: Environmental and historic preservation groups brought suit against the Secretary of the Interior after Blair Mountain, West Virginia, site of the largest armed labor conflict in American history, was removed from the National Register of Historic Places. The groups claimed that delisting from the Register would leave the battlefield site, which was privately owned by various mining interests, vulnerable to damage from surface coal mining. They challenged the decision to delist as arbitrary and capricious, and sought vacatur of the decision and relisting of the site. The United States District Court for the District of Columbia granted summary judgment against the groups, finding that they could not establish the three requisite components of Article III standing.

A divided panel of the United States Court of Appeals for the District of Columbia Circuit reversed. The court deemed the groups' aesthetic and historical interest in the site cognizable and accepted that surface mining would give rise to a concrete and particularized injury even though the site was privately owned. The court found that appellants' interest did not depend on any legal right to physically walk on the battlefield and that appellants' interest in observing the site from surrounding areas, including public roads, sufficed. Because coal companies have mined in the vicinity of the battlefield using permits that encompass the battlefield, the court found appellants' interest sufficiently imminent. The court noted, in this regard, that the coal companies had objected to listing the battlefield in the National Register, citing their expectation of future mining operations. Finally, the court concluded that appellants could satisfy the causation and redressability requirements because West Virginia mining laws protected properties listed in the Register and there was an adequate possibility that West Virginia regulations would apply to mining permit renewals.

Senior Circuit Judge Sentelle dissented on the basis that Lujan requires that an injury involve an "invasion of a legally protected interest," and appellants had no legally protected aesthetic interest in viewing others' property.

To read the full opinion, please visit http://www.cadc.uscourts.gov/i...le/12-5383-1509259.pdf.

Panel: Garland, Srinivasan, and Sentelle

Argument Date: February 6, 2014

Date of Issued Opinion: August 26, 2014

Docket Number: No. 12-5383

Decided: Reversed and remanded

Case Alert Author: Elizabeth Earle Beske

Counsel: Daniel P. Selmi, Aaron S. Isherwood, Peter M. Morgan, Andrea C. Ferster, and Elizabeth S. Merritt for appellants. Katherine J. Barton, Robert G. Dreher, and David C. Shilton for appellees.

Author of Opinion: Judge Srinivasan

Circuit: D.C. Circuit

Case Alert Supervisor: Elizabeth Earle Beske and Ripple Weistling

    Posted By: Ripple Weistling @ 08/26/2014 01:51 PM     DC Circuit     Comments (0)  

August 25, 2014
  U.S v. Joseph Donahue - Third Circuit
Headline: The Fourth Amendment's automobile exception authorizes a warrantless search of a car seized when a fugitive from post-sentencing surrender is apprehended.

Area of Law: Search and seizure

Issue Presented: Does the automobile exception to the Fourth Amendment authorize the government to search a car without a warrant if it has probable cause to believe that the car contains evidence of a crime?

Brief Summary: After being convicted for fraud and money laundering, among other charges, Joseph P. Donahue was sentenced to a ten-year prison term. Donahue avoided surrendering by driving across the country in his son's Ford Mustang. A U.S. Marshall apprehended Donahue and searched the Mustang; a second search lead to the finding of a firearms magazine and semi-automatic pistol. The District Court granted Donahue's motion to suppress the evidence seized from the Mustang, finding that the arresting officer did not subjectively think there was probable cause to believe the car contained contraband and that the crime had been completed before the search. The Third Circuit reversed, holding that there was objective probable cause to believe the car contained evidence of the crime of failing to surrender.

Extended Summary: This case concerns Joseph Donahue's motion to suppress evidence after U.S marshals searched a Ford Mustang that Donahue used to avoid surrendering to prison and found a semi-automatic pistol. Joseph Donahue was originally convicted for 16 counts of bank fraud, money laundering, accessing an unauthorized device, and making false statements. On December 3, 2010, he was sentenced to a ten-year custodial term and directed Donahue to surrender by January 4, 2011.

Donahue, however, did not surrender as ordered, and instead drove across the country in his son's red Ford Mustang to Las Cruces in an attempt to avoid imprisonment. Consequently, the District Court issued a warrant for his arrest. United States marshals and New Mexico police arrested him in Las Cruces. On orders from a supervisor and the Marshall in Pennsylvania, the arresting officer seized the car and searched it. Several marshals then photographed the vehicle, searched the trunk and cabin, and removed loose items. An FBI agent made a second inventory search and discovered a firearm magazine and later found a semi-automatic pistol in a bag.

These events caused a grand jury in the Middle District of Pennsylvania to return an indictment against Donahue for failure to surrender and for weapons charges. Donahue then moved to suppress all the evidence seized from the Mustang. Donahue argued that the warrantless searches were unreasonable under the Fourth Amendment. The District Court granted Donahue's motion, holding that the conditions for the automobile exception, which allows the government to make a warrantless search of an automobile if applicable, had not been met because the government lacked probable cause to believe that there was contraband in the vehicle.

The Third Circuit reversed, holding that there was probable cause to search the Mustang because it was reasonable to believe that Donahue would have items such as false identification that could help him avoid detection and thus would constitute evidence of the crime of failing to surrender. The Third Circuit emphasized that the automobile exception permits vehicle searches without a warrant if there is "probable cause to believe that the vehicle contains evidence of a crime." The Third Circuit then noted that no precedent states that the automobile exception justifies only a single search of a seized vehicle - any subsequent search "should be viewed as part of ongoing process." Thus, the Third Circuit reasoned, the validity of the search solely depends on whether the government had probable cause to believe that the Mustang contained evidence of a crime when it seized the car.

The Third Circuit concluded that it was "reasonable to believe that the Mustang contained items showing that Donahue knowingly failed to surrender," in violation of a federal statute. By knowingly failing to surrender, Donahue was likely to have false identification documents, which would commonly be found in places where items are "ready and available . . . to gather up and leave quickly, such as their cars." The Third Circuit also rejected the District Court's suggestion that an officer could establish that there was probable cause for a search only if he subjectively believed that the search would reveal contraband. The standard is objective and evidence of a crime is not limited to contraband. The search was lawful even if the government already had compelling evidence that Donahue had committed the crime of failing to surrender. Thus the Third Circuit reversed.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/134767p.pdf

Panel (if known): Ambro, Greenberg, and Barry, Circuit Judges

Argument Date: June 10, 2014

Date of Issued Opinion: August 22, 2014

Docket Number: No. 13-4767

Decided: Reversed and remanded

Case Alert Author: Joe Mathew

Counsel: Peter J. Smith, Esq., Todd K. Hinkley, Esq. for the Appellant the United States of America; and Gino A. Bartolai, Jr., Esq. for Appellee Joseph P. Donahue

Author of Opinion: Judge Greenberg

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/25/2014 03:55 PM     3rd Circuit     Comments (0)  

  United States v. David Bagdy - Third Circuit
Headline: Third Circuit Holds Supervised Release May Not Be Revoked for a Violation of an Implied "Good Faith" Obligation to Discharge Restitution

Area of Law: Criminal Law

Issue Presented: Whether supervised release may be revoked where the offender acted in bad faith in relation to his obligation to make restitution but the District Court found no violation of a specific provision of the restitution order.

Brief Summary: David Bagdy pled guilty to a charge of wire fraud for embezzling hundreds of thousands of dollars while he served as a consultant for a small family-owned business. He was sentenced incarceration, followed by supervised release, and ordered to pay restitution at 10% of his income. During his supervised release, Bagdy received $409,799.13 in inheritance and paid $41,000 toward restitution. The government moved to modify the order of restitution because of this material change in Bagdy's economic circumstances. Bagdy asked for numerous extensions on the motion and met with the government in an attempt to reach a settlement. Although no formal agreement was reached, Bagdy contributed an additional $60,000 of his inheritance toward restitution and remained in communication with the government. He also received an additional $25,000 in inheritance. At the hearing, the government reported that Bagdy had spent all but $52,000 of his inheritance. The court ordered Bagdy to pay the remaining inheritance money toward restitution. The District Court later held a revocation hearing and found that Bagdy had not acted in good faith in repaying his restitution, constituting a violation of the restitution order, and sentenced him to six months incarceration. The Third Circuit vacated and remanded, holding that Bagdy's failure to preserve a greater portion of his inheritance for satisfaction of the restitution order was not, on its own, a violation of the explicit conditions of supervised release.

Extended Summary: David Bagdy pled guilty to a charge of wire fraud for embezzling hundreds of thousands of dollars while he served as a consultant for a small family-owned business. The District court sentenced Bagdy to 36 months incarceration, three years supervised release, and ordered Bagdy to pay $566,115.57 in restitution. As conditions of his supervised release, he was to pay at least ten percent of his monthly income toward restitution and provide the probation officer access to any requested financial information to determine an appropriate payment schedule. During his supervised release, Bagdy received $409,799.13 in inheritance and reported it to his probation officer in March 2012. Bagdy paid $41,000 toward restitution.

On April 9, 2012, the government filed a § 3664(k) motion to modify the order of restitution because of this material change in Bagdy's economic circumstances. Bagdy asked for numerous occasions to extend the motion hearing and met with the government in an attempt to reach a settlement. Although no formal agreement was reached, Bagdy contributed an additional $60,000 of his inheritance toward restitution and remained in communication with the government. While negotiations between the government and Bagdy continued, Bagdy requested several extensions of time to file a response to the government's § 3664(k) motion, representing to the District Court that he was engaged in "good faith negotiations to resolve all restitution issues by agreement" with the government. For months, the government did not oppose Bagdy's extension motions and the District Court granted five of them. When no settlement had been reached as of early November 2012, the government emailed Bagdy's counsel to express its concern that Bagdy may be stalling the hearing while depleting his inheritance. During this time, Bagdy received an addition $25,000 in inheritance.

At the hearing on December 3, 2012, the government reported that Bagdy had spent all but $52,000 of his inheritance. The court ordered Bagdy to pay the remaining $52,000 inheritance money toward restitution. The government filed a motion to hold a revocation hearing to determine whether Bagdy violated the terms of his supervised release. The District Court found that the defendant had not acted in good faith in repaying his restitution, constituting a violation of the restitution order. The District Judge then sentenced Bagdy to six months incarceration.

The Third Circuit vacated and remanded, holding that the District Court did not identify an explicit condition that Bagdy violated. The Third Circuit noted that a District Court may revoke a defendant's supervised release and impose a term of imprisonment if the court finds by a preponderance of the evidence that the defendant violated a specific condition of supervised release. The Third Circuit also cited precedent stating that conditions of supervised release must be sufficiently clear to enable individuals to freely choose between compliance and violation, and conditions of supervised release must provide specific standards which avoid arbitrary and discriminatory enforcement.

The Third Circuit acknowledged that there was nothing in the record that suggested that Bagdy failed to make payments as directed by his probation officer. The Third Circuit stated that Bagdy's failure to preserve a greater portion of his inheritance for satisfaction of the restitution order was not, on its own, a violation of the explicit conditions of supervised release. Furthermore, the conditions did not require that Bagdy make good faith efforts to pay his restitution.
The government also argued that Bagdy violated an informal agreement with the government reached in early 2012 where Bagdy agreed not to deplete his inheritance prior to reaching a settlement with the government. The Third Circuit decided that, even if Bagdy's conduct breached such an agreement, honoring that agreement however was not a condition of supervised release. Thus, the Third Circuit vacated the District Court's decision and remanded for additional proceedings to determine whether Bagdy's conduct violated other conditions of supervised release.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/132975p.pdf

Panel (if known): Smith, Vanaskie, Shwartz, Circuit Judges

Argument Date: May 13, 2014

Date of Issued Opinion: August 21, 2014

Docket Number: No. 13-2975

Decided: Vacated and remanded for further proceedings

Case Alert Author: Katie Cooper

Counsel: Candice Cain, Esq. for the Appellant David Bagdy; and Donovan J. Cocas, Esq., Rebecca R. Haywood, Esq., for Appellee United States of America.

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/25/2014 01:50 PM     3rd Circuit     Comments (0)  

  Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia - Third Circuit
Headline: Police Officers can give money to PACs

Area of Law: First Amendment

Issues Presented: Whether the restriction imposed by the City Council to prevent members of the Police Department from contributing to their union's political action committee violates the First Amendment?

Brief Summary: Philadelphia City Council enacted a Home Rule Charter to combat corruption by city employees. One restriction prevents police officers from contributing to their union's political action committee. The Court found that the restrictions imposed by the city were not narrowly tailored enough to prevent the harms the government was concerned about. The ban on contributions unnecessarily abridged the associational freedoms of the officers and was held to be unconstitutional.

Significance (if any):

Extended Summary: This case centers on a Home Rule Charter enacted by the Philadelphia City Council in 1951. Concerned with widespread corruption among city employees and especially members of the police force, the Charter restricted certain political activities by city employees including preventing members of the Police Department from making contributions to their union's political action committee. The provision at issue prevents employees of the Philadelphia Police Department from making contributions for any political purpose. The members of the Police Department cannot donate to their political action committee (COPPAC) because it uses some funds for partisan political purposes. The police are the only city employees that are subject to the contribution ban.

In 2006, Philadelphia City Council passed a city bill that would allow members of the Fraternal Order of Police (FOP) to authorize payroll deductions to contribute to COPPAC. The members of the FOP would not be able to choose how this money is spent. That is left to the discretion of the FOP's executive board. The bill is still on the books but the current Mayor refuses to implement it because it is believed to be violative of the Charter ban.

There are other regulations which also attempt to insulate the police from political influence. Regulation 8 has been interpreted to forbid city employees from engaging in political activity while on duty, in uniform, or using city resources. Employees cannot use their authority for any political purpose including serving on a committee or as an officer or managing the affairs of any partisan political group. The employees can vote and belong to a political party. City employees, including police officers, can contribute time and money to non-political organizations that promote causes they care about.

The Court used the Pickering framework because the ban restricts the police officers' right to speak on matters of public concern. This balances the interest of the public employee to comment on matters of public concern and the government of promoting efficiency of the public services it performs through its employees. Because the ban prevents speech, the government has the greater burden and must show actual harm that will result because of the speech and that the regulation will stop these harms in a direct and material way. The Court found that, while there are real harms presented, the Charter ban is not an appropriately tailored means to address them. While the city failed to show that corruption is still rampant within the city government and employees, the Court exercised judicial caution because the legislation has remained essentially unchanged since the time of the corruption and the FOP provided little evidence to combat the city's concerns that lifting the ban would not cause a reversion to partiality and politicized personnel practices.

The Court found that the Charter ban failed the second part. The Court refused to defer to the legislative judgment for determining if the restriction on political activity adequately balanced the interests of the government and employees. It distinguished this case from others because the police officers wish to contribute to a political action committee which is an intermediary between donors and candidates. The police do not wish to contribute directly to a candidate or political campaign. The donors have no say in how the funds of COPPAC are distributed. The Court also found persuasive the Supreme Court's skepticism of political speech restrictions based on broad anticorruption rationales.
The Court noted that the city failed to explain how the contribution ban directly mitigated the concern of corruption and the patronage system. The Court also found unpersuasive any reasons the city gave for the ban to apply only to the police including that the ban is a part of an integral and carefully calibrated scheme to insulate the police from all political activity and that to end it would result in a parade of horribles. The Court found that the regulation was under inclusive because applies only to individual officers and does nothing to prevent the stated harms of the FOP's practice of handing out courtesy cards and endorsing and financing local candidates.

The Court did find merit in the city's concern to protect officers from politically motivated practices but found that the problem is not with the officer's ability to make contributions but with the way the FOP wants to get donations by taking it directly from officer's pay. The concern is that this becomes a mark of an officer's merit and could lead to politically motivated hiring and advancement. The Court determined that the solution to this would be to repeal the city bill allowing the FOP to take contributions directly from payroll. Because there are other alternatives that are more tailored to serve the government's interest, the Court determined that the ban was not tailored in a direct and material way to prevent the harms. It was not closely tailored enough to avoid unnecessary abridgment of associational freedoms and so it unconstitutionally restricts the police's participation in the political process.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/131516p.pdf

Panel (if known): Hardiman, Scircia, and Nygaard, Circuit Judges

Argument Date: November 12, 2013

Argument Location:

Date of Issued Opinion: August 18, 2014

Docket Number: 13-1516

Decided: Reversed and remanded

Case Alert Author: Cheri Snook

Counsel: Thomas W. Jennings, Marc L. Gelman, Jennings Sigmond, for plaintiff-appellants; Eleanor N. Ewing, Robert D. Aversa, Mark Maguire, for defendants-appellees

Author of Opinion: Hardiman

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/25/2014 09:00 AM     3rd Circuit     Comments (0)  

August 20, 2014
  Montanez v. Secretary Pennsylvania Department of Corrections et al. - Third Circuit
Headline: Inmates entitled to pre-deprivation non-judicial process before fines and costs are deducted from their prison accounts.

Area of Law: Constitutional Due Process

Issues Presented: What notice and process are required when deducting court ordered fines and fees from inmate bank accounts?

Brief Summary:

Montanez and Hale, inmates in the Department of Corrections prison system who had court ordered fees and fines deducted from their prison managed bank accounts by DOC officials, allege that they were not given notice of the deduction policy, made pursuant to state law, nor were they given due process before the institution of deductions. The Third Circuit agreed with the District Court that Montanez's claims were time-barred and that there were no reason to equitably toll the statute of limitations. The Third Circuit held that Hale was entitled to notice and to non-judicial process before DOC officials could begin deductions from his bank account. Finally the Third Circuit upheld the finding of qualified immunity while stressing that this immunity applied only to claims for monetary damages and that the claims for injunctive relief could go forward.

Extended Summary:

Montanez and Hale are inmates of the Department of Corrections (DOC) prison system in Pennsylvania. Montanez was sentenced to jail time and ordered to pay fines and restitution of $248.60 and undefined court fees. At the sentencing hearing the judge did not inform him of 42 Pa. Cons. Stat. § 9728(b)(5), amended in 1998 by Act 84 of the Pennsylvania Legislature, which authorizes deductions from inmate bank accounts for the purposes of paying court ordered fines and costs (DOC Policy). DOC officials and Montanez disagree whether Montanez was ever provided with a statement of the DOC Policy or provided a "300B" form showing the amount of court ordered obligations DOC understood him to owe. Montanez did receive a receipt each month that included an "Act 84" charge. DOC officials began making deductions from his account in April 6, 2000. Montanez filed a grievance with DOC on November 17, 2002 and on November 29, 2004 filed a complaint in District Court.
Hale was sentenced on January 6, 2004 to jail time and ordered to pay fines, fees and costs totaling $2783.86. It is disputed whether Hale received notice of the DOC policy during his intake into the DOC prison. It is undisputed, however, that the "300B" form shows $4373.64 owed and overstates the restitution owed significantly. Hale filed a complaint in District Court on December 15, 2004.
On appeal from summary judgment in favor of the DOC, Montanez argued that his claim accrued at a later date than found by the district court and therefore was not barred by the statute of limitations. In the alternative, he argued that the statute of limitations should be equitably tolled under the continuing violation doctrine or the fraudulent concealment doctrine. The Third Circuit found that Montanez's complaint was filed several years after the statute of limitations had expired. The continuing violation doctrine did not apply because Montanez was aware of the relevant injury at the time it occurred and also because the alleged violation of Montanez's rights was the singular act of initiating deductions from his account rather than each instance of deduction. Fraudulent concealment was also found not to apply because Montanez was aware at all relevant times of the source of his injury and therefore was not delayed in seeking relief due to fraud.
Hale argued that he was entitled to notice and an opportunity to contest the amount DOC understood to be owed by him. Hale also argued that DOC officials were acting in a "ministerial" capacity and therefore not entitled to immunity. The Third Circuit weighed the burden on the State to provide additional process, the effectiveness of that process, and Hale's property interest in his bank account. Noting that DOC's documents overstated the amount Hale owed, an easily remedied error, the Third Circuit held that Hale was entitled to due process in the form of notice and a non-judicial opportunity to contest the sums DOC officials based their total deductions on. The Third Circuit stressed that due process did not require judicial review however.
The Third Circuit upheld the District Court's finding that the defendants were entitled to qualified immunity on the grounds that the law was not sufficiently clear at the time the deductions were made. In addition because the officials were not performing ministerial functions in regards to the decision to not provide a pre-deprivation hearing the Third Circuit found DOC officials were not exempt from qualified immunity.
Find the full opinion at:
http://www2.ca3.uscourts.gov/opinarch/131380p.pdf

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

Argument Date: November 7, 2013

Date of Issued Opinion: August 14, 2014

Docket Number: Nos. 13-1380 and 13-1478 (consolidated)

Decided: Affirmed in part, reversed in part

Case Alert Author: Philip Jones

Counsel: Ernest D. Preate, Jr., Esq., for Appellant Montanez; Su Ming Yeh, Esq., for Appellant Hale; Howard G. Hopkirk, Esq., for Appellee.

Author of Opinion: Judge Roth

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan DeJarnatt

    Posted By: Susan DeJarnatt @ 08/20/2014 01:45 PM     3rd Circuit     Comments (0)  

August 18, 2014
  United States v. Timothy McGee - Third Circuit
Headline: SEC rule on misappropriation of confidential information is a valid interpretation of the Securities Exchange Act provision banning insider trading

Area of Law: Criminal, Securities

Issues Presented: Whether the SEC rule imposing insider trading liability for misappropriation of confidential information is invalid because it extends to non-fiduciary relationships?

Brief Summary: Timothy McGee, a financial advisor, became the confidant of Christopher Maguire through their involvement in the AA program. McGee received information from Maguire, who was an insider, about the unannounced sale of Philadelphia Consolidated Holding Corporation ("PHLY"). Subsequently, McGee's portfolio changed from having 10% to 60% holdings in PHLY stock which were then sold after the sale. When the SEC investigated this unusual trade activity, McGee testified under oath that he knew nothing of the PHLY sale. McGee was found by a jury to be guilty of securities fraud under the misappropriation theory of insider trading in violation of §10(b) of the Securities Exchange Act of 1934, SEC Rules 10b-5 and 10b5-2(b)(1)-(2) and perjury in violation of 18 U.S.C. §1621. On appeal, McGee challenged the validity of Rule 10b5-2(b)(1)-(2) saying that it exceeded the SEC's rulemaking authority. The Third Circuit found that, under Chevron, the SEC had not exceeded its rulemaking authority. Rule 10b5-2(b)(1)-(2) is owed Chevron deference because it has not been congressionally or judicially foreclosed and is "based on a permissible reading" of § 10(b). The conviction was affirmed.

Extended Summary: Timothy McGee appealed his conviction by a jury for securities fraud and perjury. Between 1999 and 2001, McGee, a financial advisor with 20 years of experience, became acquainted with Christopher Maguire through AA meetings. They developed a friendship that extended outside meetings and they would regularly go biking together and train for triathlons. They would share intimate and confidential information, but only as it pertained to their continued sobriety. McGee gave assurances to Maguire that their conversations were confidential and offered his services as a financial advisor. In the beginning of 2008, Maguire was in negotiations to sell Philadelphia Consolidated Holding Corporation ("PHLY"). The stress of the sale caused him to relapse and he started to again attend AA meetings. It was there that he met up with McGee and talked to him about the sale of PHLY, information that had not been released publicly and that Maguire assumed was told in confidence. After this conversation, McGee changed his stock portfolio from 10% of PHLY stock to 60%. He even borrowed money to finance the purchase of such a large amount of shares. After the sale of PHLY, their stock rose from about $35 a share to $58 a share. Due to the suspicious nature of McGee's stock purchases, the SEC began an investigation. In September 2012, he gave a sworn testimony to the SEC in which he claimed no foreknowledge of the PHLY sale before buying the stock.
In May 2012, McGee was indicted by a grand jury for securities fraud under the misappropriation theory of insider trading in violation of §10(b) of the Securities Exchange Act of 1934, SEC Rules 10b-5 and 10b5-2(b)(1)-(2) and perjury in violation of 18 U.S.C. §1621. McGee moved to dismiss the indictment saying that Rule 10b5-2(b)(1)-(2) is invalid because it allows for misappropriation liability without a fiduciary relationship between the perpetrator and his source, but the District Court denied his motion. On November 12, 2012 he was convicted by a jury of the two counts.
On appeal, McGee argued that the SEC exceeded its rulemaking authority by enacting Rule 10b5-2(b)(1)-(2). In reviewing McGee's argument, the Court began by looking at §10(b) of the Securities Exchange Act, the statute that enabled the SEC to create Rule 10b5-2(b)(1)-(2). The Court established that the Act created two kinds of insider trading: traditional and misappropriation. Misappropriation happens when a person, "misappropriates confidential information for securities trading purposes, in breach of a duty [to disclose] owed to the source of the information." The Court emphasized non-disclosure as a main factor in misappropriation violations. To determine whether the SEC overstepped in creating Rule 10b5-2(b)(1)-(2), the Court reviewed the Chevron deference framework which has two steps: (1) it must be determined whether the statute create by Congress was ambiguous on the precise issue in question and (2) if it is determined that it is, the rule will be upheld so long as it is "based on a permissible construction of the statute." McGee argued that the Chevron doctrine did not apply because the statute was not ambiguous. The Court disagreed. The Court reasoned that the statute did not define the term "deceptive" and it also did not address the issue at hand, thus allowing the gap to be filled by the SEC rule. The Court cannot fill the gap since the Chevron doctrine requires the courts to defer to an agency's interpretation, in this case Rule 10b5-2(b)(1)-(2). Therefore, even if the Court disagreed with the rule, it had no authority to overrule it.
The Court determined that §10(b) was ambiguous and so the Court moved to the second part of the Chevron doctrine to determine whether Rule 10b5-2(b)(1)-(2) was based on a permissible construction. The Court reasoned that the Rule was a tool to hold misappropriators accountable. It determined that the Rule was in line with the Act's purpose and thus was permissible. The Court held that Rule 10b5-2(b)(1)-(2) was valid under the SEC's rulemaking authority.
The Third Circuit also rejected McGee's arguments for reversal based on insufficient evidence to support the convictions and newly discovered evidence. McGee argued that no rational trier of fact could have found that McGee and Maguire had the relationship of trust or confidence needed for misappropriation liability, or the inside information was disclosed within the scope of such a relationship. The Court rejected the contention that McGee and Maguire did not have a relationship of trust and confidence. Rule 10b5-2(b)(1)-(2) requires a "history, pattern, or practice of sharing confidences" between the two parties which the jury believed existed between the two men. There were many years of confidences shared between the two men and Maguire testified that he believed that when he was telling McGee about the sale of PHLY, he was telling him in confidence. The Third Circuit agreed with the District Court's determination that there was sufficient evidence to support the conviction.
The Court also agreed with the District Court that McGee's unusual trading activity was enough evidence to corroborate the Maguire testimony. McGee had no previous history of such trades and his activity seems only to stem from the information he acquired from Maguire. The Court rejected McGee's argument there was insufficient evidence that his statement was false asserting that Maguire's testimony was unclear. Although Maguire was unsure of the exact date of his conversation with Maguire, he was able to give enough detail about the timing of it to satisfy the jury. The Court also disagreed that the SEC's questioning was ambiguous. The Court found McGee's attempt to find extreme ambiguity to be flawed. The Court held that Maguire's testimony was corroborated and there was sufficient evidence to support the finding that McGee had committed perjury.
Finally, the Third Circuit rejected McGee's claim that he was entitled to a new trial because of new evidence. The new evidence that McGee cited was a new affidavit from Tyler D. that was discovered during a civil case after his criminal conviction. The affidavit denied the statement "what you hear here, stays here" was made at the AA meetings McGee and Maguire attended. The Court determined that this evidence did not meet the five requirements for a new trial based on newly discovered evidence and would not have been strong enough to overturn McGee's convictions. For all the above reasons, the Court affirmed the District Court's judgment.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133183p.pdf

Panel (if known): Chagares, Schwartz, and Aldisert, Circuit Judges

Argument Date: February 12, 2014

Date of Issued Opinion: August 14, 2014

Docket Number: No. 13-3183

Decided: Affirmed

Case Alert Author: Shanna Lafferty

Counsel: John C. Grugan, Esq., Christine R. O'Neil, Esq. for Appellant; and Jay M. Feinschil, Esq. for Amicus Appellant; and Zane D. Memeger, Esq., Frank R. Costello, Jr., Esq., Bernadette A. McKeon, Esq., for Appellee

Author of Opinion: Judge Aldisert

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/18/2014 02:38 PM     3rd Circuit     Comments (0)  

August 15, 2014
  Solomon v. Vilsack - D.C. Circuit
Headline: Flexible work schedule may be a reasonable accommodation under the Rehabilitation Act of 1973

Area of Law: Rehabilitation Act; Employment Law

Issue Presented: Whether the Rehabilitation Act of 1973 permits a "maxiflex" schedule as an accommodation for an employee's disability.

Brief Summary: Appellant Linda Solomon, a Department of Agriculture employee, sought substantial flexibility in her working hours, a so-called "maxiflex" schedule, to accommodate her disability under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. The Rehabilitation Act requires employers to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." When her employer denied the requested maxiflex schedule, and after exhausting administrative remedies, Solomon filed suit in the United States District Court for the District of Columbia alleging that the Secretary's refusal to permit the maxiflex schedule violated the Rehabilitation Act. The district court granted the Secretary's motion for summary judgment on the ground that the flexible work schedule Solomon requested was unreasonable as a matter of law.

The United States Court of Appeals for the District of Columbia Circuit reversed in part. The court rejected the Secretary's argument that "the ability to work a regular and predictable schedule" is, "as a matter of law, an essential element of any job," finding nothing in the Rehabilitation Act that takes such an accommodation off the table. Quite the contrary, the court found that the Act's incorporation of the Americans with Disabilities Act and its regulations signified an endorsement of modified work schedules. The court distinguished Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994), as a case in which the employment at issue involved "tight 4:00 p.m. deadlines." Carr, an admittedly "unusual" case, did not purport to set forth a categorical legal rule that a regular and predictable schedule was an essential function of all jobs. Because Solomon had submitted sufficient evidence on all four elements of her accommodation claim, the D.C. Circuit reversed the district court's entry of summary judgment.

For the full text of the opinion, please visit: http://www.cadc.uscourts.gov/i...e/12-5123-1507755.pdf.

Panel: Henderson, Millett, and Ginsburg

Argument Date: March 17, 2014

Date of Issued Opinion: August 15, 2014

Docket Number: 12-5123

Decided: Reversed in part

Case Alert Author: Albertine Guez

Counsel: John F. Karl Jr. for appellant. Brian P. Hudak, Ronald C. Machen Jr., and R. Craig Lawrence for appellee.

Author of Opinion: Millett

Case Alert Circuit Supervisors: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/15/2014 03:36 PM     DC Circuit     Comments (0)  

August 14, 2014
  Vici Racing, LLC vs. T-Mobile USA, Inc. - Third Circuit
Headline: Once a Plaintiff proves damages from a breach of contract, the Defendant has the burden of proof on whether the Plaintiff had opportunity to mitigate damages.

Area of Law: Contract Law

Issues Presented: Who has the burden of proof to show a plaintiff in a breach of contract case did not adequately mitigate damages.

Brief Summary: T-Mobile USA, Inc. ("T-Mobile") entered into a contract with VICI Racing LLC ("VICI") to sponsor a racecar. After the racecar had an accident and could not race, T-Mobile did not provide the money as promised under the sponsorship contract. VICI sued in the District Court of Delaware for breach of contract, and T-Mobile cross-claimed for the same. The District Court ruled in favor of VICI in the claim because T-Mobile claimed VICI breached a provision of the contract, which was ultimately unenforceable and severable from the contract. The Court only awarded VICI with $7,000,000 even though T-Mobile still owed $14,000,000 because VICI could not prove there was no way to mitigate damages. The Third Circuit Court of Appeals affirmed the District Court in the decision except with respect to mitigating damages. The Third Circuit ruled the defendant has the burden of proving a plaintiff in a breach of contract case could have mitigated damages once the plaintiff proves the amount of damages. The Third Circuit remanded the case to determine the expectation damages under contract law for the remaining amount as VICI does not still race cars.

Significance (if any):

Extended Summary: T-Mobile USA, Inc. ("T-Mobile") entered into a contract with VICI Racing LLC ("VICI") to sponsor a racecar or March 30, 2009. The contract provided T-Mobile would give VICI $1,000,000 by April 1, 2009 and $7,000,00 by January 1, 2009 and 2010 in exchange for VICI driving once T-Mobile sponsored Porsche racecar during the 2009 season, and two during the 2010 and 2011 seasons. VICI further promised to have T-Mobile be the exclusive wireless carrier supplying wireless connectivity for the Porsche, Audi and VW telematics programs beginning in cars produced after 2011. Additionally, the contract contained a standard force majeure clause, a standard severability clause, and an agreement to limit liabilities (sounding like a liquidated damages clause). In July 18, 2009, the T-Mobile sponsored racecar sustained severe damage from an accident, and could not race for approximately two months. After T-Mobile did not pay $7,000,000 at the beginning of 2010, VICI sent a notice of default. In response, T-Mobile sent a letter terminating the agreement claiming VICI materially breached the contract because of their failure to secure telematics contracts and because the racecar had not raced in a specific race, where T-Mobile had business guests. On September 30, 2010, VICI filed suit in the District Court of Delaware claiming breach of contract against T-Mobile seeking $14,000,000 in damages. T-Mobile asserted an affirmative defense and counterclaim asserting VICI did not perform its obligations under the contract.
At a bench trial in the District Court of Delaware, the judge awarded VICI $7,000,000 in damages based on expectation under the contract. The District Court judge did not award $14,000,000 because the judge placed the burden of proof of mitigating damages upon VICI, and believed VICI could successfully mitigate damages for year 2011. In addition, the District judge ruled T-Mobile breached the contract first because the section detailing VICI's promise to T-Mobile to be the exclusive wireless carrier was ambiguous, even after admitting parole evidence, therefore unenforceable and severable under a separate clause of the contract. T-Mobile appealed the verdict arguing they owe no damages because VICI breached the contract originally because of its failure to provide T-Mobile with an exclusive contract and because the racecar accident did fall under the force majeure provision of the contract. VICI appealed the verdict because it believes it is owed $7,000,000 for both 2010 and 2011, not just 2010.
The Third Circuit Court of Appeals ruled in favor of VICI on all matters. First, it affirmed the District Court in severing the contract provision dealing with the exclusive wireless carrier due to ambiguous terms and no clear error of fact-finding in the district court. The court reasoned the rest of the contract would still be enforceable without this provision and there were no facts that the parties would not have entered into this contract without this provision. Second, the Third Circuit affirmed the District Court ruling that the force majeure provision excused VICI's breach of contract since VICI conformed to the necessary steps under the provisions. Additionally, since T-Mobile did not raise the issue originally in the District Court, it could not bring the issue up during appeal. The Third Circuit addressed the issue of foreseeability in the issue of force majeure under Delaware Law, but ultimately did not reach a conclusion because the issue was not raised in district court. Next, the Third Circuit affirmed the District Court's award of $7,000,000 damages even though T-Mobile claimed the contract damages should have been lower because VICI had lower costs because it did not participate in races during 2010. The Third Circuit deferred to the fact finding of the district court and found no clear error was committed. Lastly, the Third Circuit overturned the District Court's assertion VICI has the burden of proof when mitigating damages under the expectation theory of contracts. The Third Circuit ruled a plaintiff must prove damages, and therefore, the defendant has the burden of the proof to show possible avenues of mitigation of damages after the plaintiff proves damages exist. In the present case, the District Judge expected VICI to prove damages and then show it was not possible to mitigate damages. The Third Circuit remanded the question of damages for the year of 2011 based on what costs VICI would avoid because it did not participate in racing cars.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/131615p.pdf.

Panel (if known): Ambro and Greenway Jr., Circuit Judges, and Baylson, District Judge sitting by designation.

Argument Date: January 14, 2014

Argument Location: Philadelphia, PA

Date of Issued Opinion: August 13, 2014

Docket Number: Nos. 13-1615 & 13-1780

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

Case Alert Author: Ilya Gomelsky

Counsel: John D. Lowery, Esq., Gavin W. Skok, Esq., James C. Martin, Esq., Colin E. Wrabley, Esq., Peter J. Walsh, Jr., Esq., and Jennifer C. Wasson, Esq. for Appellant in 13-1615 and Cross Appellee in 13-1780. Juan C. Antorcha, Esq., Joseph P. Klock, Jr., Esq., and Christopher D. Loizides, Esq. for Appellee in 13-1615 and Cross Appellant in 13-1780.

Author of Opinion: Baylson, District Judge.

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/14/2014 02:38 PM     3rd Circuit     Comments (0)  

August 12, 2014
  Griswold v. Coventry First LLC - Third Circuit
Headline: Third Circuit Affirms Sidestep of Arbitration Clause in Life Settlement Fraud Case

Area(s) of Law: Corporations, Contracts, Standing, and Appellate Jurisdiction

Issues Presented: Whether the Third Circuit has appellate jurisdiction to review the District Court's denial of a motion to dismiss for lack of standing; and whether the District Court erred when it denied a motion to compel arbitration.

Brief Summary: Lincoln Griswold created a trust which engaged in a life settlement deal with Coventry First, LLC through Mid-Atlantic Financial and its broker, Kevin McGarrey. Mr. McGarrey entered into an allegedly fraudulent agreement with Coventry to refrain from seeking further bids for Griswold's life insurance policy and to report any competing offers and their terms, in exchange for the right to name his own commission. Upon finding out, Griswold sued Coventry for common law fraud, fraudulent concealment, conversion, aiding and abetting the breach of fiduciary duties, unjust enrichment, and violation of state life settlement acts, the Sherman Act, and RICO. Coventry, in response, moved to dismiss the case for lack of standing, or in the alternative, to compel arbitration pursuant to the purchase agreement. The District Court denied Coventry's motion to dismiss, finding that Griswold had standing due to possessing a proprietary interest in the property that was injured, and denied the alternative motion to compel arbitration, holding that the arbitration clause was "unenforceable as to Plaintiffs who are non-signatories." The Third Circuit found that it had neither interlocutory power nor could exercise pendent jurisdiction over the District Court's denial of the motion to dismiss. It also affirmed the denial of the motion to compel arbitration because Griswold was not a signatory to the original purchase agreement and because the alleged fraud stemmed from the antecedent agreement between McGarrey and Coventry.

Extended Summary: This case arises from an alleged fraud in connection with a life settlement, or the sale of a life insurance policy for more than its cash-surrender value, but less than the net death benefit. The purchaser pays the premiums until the death of the original policy owner, then collects the death benefits.

In January 2006, Griswold purchased an $8.4 million life insurance policy and established the Lincoln T. Griswold Irrevocable Trust (the Trust) under Georgia law for the "sole and exclusive purpose" of owning the policy and he disclaimed any personal "right, title or interest in or power, privilege or incident of ownership" in the trust property. He appointed Wells Fargo Bank to serve as Trustee. Two weeks later, Griswold named Griswold LLP as its sole beneficiary. According to the terms of the partnership agreement, Griswold LLP would dissolve once it fulfilled its limited purpose of receiving the proceeds of the life insurance policy.
In January 2006, the Trust appointed Mid-Atlantic Financial as its exclusive agent to "identify, select and appoint" a life-settlement broker, who then selected Kevin McGarrey. In March 2008, McGarrey contacted Coventry First LLC (Coventry), a Pennsylvania-based insurer, indicating that Griswold's life insurance policy was for sale and that he was the authorized broker for a commission of $84,000. Griswold alleges that Coventry rigged the bidding process by having McGarrey sign an agreement (the "Secret McGarrey Agreement") promising not to seek any further bids and to report any competing offers and their material terms to Coventry, which McGarrey did. In exchange, Coventry allegedly allowed McGarrey to "self-determine" his new commission of $145,000.

Coventry offered $1.675 million for the Griswold policy which included McGarrey's commission. Coventry and McGarrey did not disclose the amount of broker compensation to the Trust or to Griswold. On March 31, 2008, the Trust sold its policy to Coventry without having received a competing offer and the written purchase agreement contained a broad arbitration clause.

Once Coventry acquired the life insurance policy, the Trust dissolved, having fulfilled its sole purpose. The Trustee, Wells Fargo, then transferred the proceeds of the sale to Griswold LLP, the sole beneficiary. In December 2008, the partners of Griswold LLP filed a "Cancellation of Limited Liability Partnership Election" in Georgia state court pursuant to the LLP's partnership agreement.

In September 2010, after learning of Coventry's alleged fraud, Griswold sued Coventry, Coventry Group, Montgomery Capital, Coventry Financial, and Reid S. Buerger, Coventry's Executive Vice President, in Pennsylvania state court on behalf of himself, as the former majority partner of Griswold LLP, and on behalf of a class of persons who had sold their life insurance policies to these Defendants. Griswold alleged that Coventry's collusion with McGarrey to conceal his self-determined commission and rig the bidding process constituted common law fraud, fraudulent concealment, conversion, aiding and abetting the breach of fiduciary duties, unjust enrichment, and also violated state life settlement acts, the Sherman Act, and RICO.

Coventry removed the case to the Eastern District of Pennsylvania and moved to dismiss for lack of standing because neither Griswold himself nor Griswold LLP had signed the purchase agreement, only the Trust. In the alternative, Coventry moved to compel arbitration pursuant to the purchase agreement.

In response, Griswold filed an "Election to Revive and Reinstate and Otherwise Become a Limited Liability Partnership," followed by an Amended Complaint adding Griswold LLP as a Plaintiff. Coventry moved to dismiss the Amended Complaint. The District Court denied Coventry's motion to dismiss, finding that because "Griswold possesses a proprietary interest in the property of Griswold LLP that was injured, both Lincoln T. Griswold and the LLP have Article III standing." The District Court then denied Coventry's alternative motion to compel arbitration, holding that the arbitration clause was "unenforceable as to Plaintiffs who are non-signatories."

The Third Circuit first found that it had jurisdiction over the denial of the motion to compel arbitration stemming from 28 U.S.C. § 1332(d) and the Federal Arbitration Act (FAA). It then turned to the parties' dispute over whether it had appellate jurisdiction to review the District Court's denial of Coventry's motion for lack of standing. Coventry argued that, under Majestic Star Casino, LLC v. Barden Development, Inc., the court had both the authority and the obligation to review the denial since standing is a "threshold jurisdictional requirement." The court, however, distinguished the issue in Majestic from the case at bar since there the issue of standing had been first raised at appeal and was "inextricably intertwined with the merits of the case."

Instead, the court said, it must decide whether it is required to adjudicate a standing issue already decided by the District Court. The court found that once a district court has determined that plaintiff has standing, an appellate court has limited interlocutory power to review that determination. The court also rejected Coventry's argument that the court should exercise pendent jurisdiction over the District Court's ruling on standing since it had already exercised jurisdiction over the compelled arbitration motion. The standing issue, it said, turns on whether Griswold LLP remains in existence and can bring claims on behalf of the Trust as its sole beneficiary, whereas the question of arbitrability turns on whether Griswold LLP, a non-signatory to the purchase agreement, can be bound to its arbitration clause because it reaped the benefits of the contract. Because it could reach the arbitration question without addressing the standing question, "the jurisdictional question was not sufficiently intertwined with the merits of the appealable order, requiring us to 'exercise restraint' and forego review until the unrelated issue is appealable in its own right.'"

The court then turned to the issue of the District Court's denial of Coventry's motion to compel arbitration. Neither party disputed that the purchase agreement included a broad arbitration agreement requiring the parties to arbitrate any disputes arising out of the contract itself.

The court noted that, while the FAA does create a presumption in favor of arbitration clauses, that presumption does not extend to non-signatories to contracts who have not agreed to be bound by the clauses. However, Coventry argued that both Georgia and Pennsylvania law, as well as Third Circuit precedent, allow for non-signatories to be bound by arbitration agreements in contracts through equitable estoppel. The Third Circuit agreed, noting, however, that for that to occur the non-signatory party must: 1) have knowingly exploited the agreement containing the arbitration clause despite never having signed the agreement; or 2) have insisted on the arbitration clause itself due to "the close relationship between the entities involved, as well as the relationship of the alleged wrongs to the non[-]signatory's obligations and duties in the contract ... and [the fact that] the claims were intimately founded in and intertwined with the underlying contract obligations."

Because Griswold clearly did not insist on the arbitration clause himself, Coventry claimed that he was bound by the first of the above conditions because he "embrace[d] the agreement and directly benefit[ed] from it." Third Circuit precedent has established that, "A non-signatory can 'embrace' a contract in two ways: (1) by knowingly seeking and obtaining direct benefits from that contract; or (2) by seeking to enforce terms of that contract or asserting claims [based on the contract's other provisions]."

The Third Circuit disagreed with this analysis as applied to Griswold because in order to compel a non-signatory to arbitration, the claims must be based directly on the contract that contains the provision. The court found that the arbitration agreement in the purchase agreement did not bind Griswold here because the "contract" at issue on appeal is not the purchase agreement itself, rather the "Secret McGarrey Agreement" antecedent to, and separate from, the purchase agreement.
To read the full opinion, please visit: http://www2.ca3.uscourts.gov/opinarch/131879p.pdf.

Panel (if known): Ambro, Hardiman, and Greenway, Jr., Circuit Judges

Argument Date: January 14, 2014

Date of Issued Opinion: August 11, 2014

Docket Number: No. 13-1879

Decided: No appellate jurisdiction as to motion to dismiss, affirm denial of motion to compel

Case Alert Author: Aaron Spencer

Counsel: Counsel for the Appellants: Kannon K. Shaunmugam, (Argued), Steven D. Andrews, Kenneth J. Brown, Sarah K. Campbell, David Forkner, Marcie R. Ziegler, F. Warren Jacoby, and Jennifer M. McHugh; Counsel for the Appellees: Ronald J. Mann (Argued), Gerard M. McCabe, Daniel P. Goetz, R. Eric Kennedy, Mark D. Griffin, Thormon Petrov Griffin, Peter Hardin Levine, J. Matthew Linehan, and Christopher P. Thorman.

Author of Opinion: Judge Hardiman

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/12/2014 03:58 PM     3rd Circuit     Comments (0)  

  Dwyer v. Cappell--Third Circuit
Headline: Third Circuit Holds that New Jersey Supreme Court Guideline Limiting Dwyer Law Firm's Use of Court Opinion Quotations Lauding His Performance is Unconstitutional Infringement on Speech

Area of Law: First Amendment

Issues Presented: Is New Jersey Supreme Court Guideline 3, which prohibits use of quotations from court opinions about an attorney's abilities or legal services on websites or other advertisements outside the context of the full opinion, an unconstitutional infringement on speech as applied to Andrew Dwyer and his firm?

Brief Summary: Andrew Dwyer posted three excerpted quotations from judicial opinions which addressed his performance as attorney on his firm's website. In response, the New Jersey Bar's Committee on Attorney Advertising promulgated, and the New Jersey Supreme Court approved, Guideline 3, which prohibited quotations from court opinions about an attorney's abilities or legal services from websites or other advertisements outside the context of the full opinion. Dwyer filed a 1983 action, calling Guideline 3 an unconstitutional restriction on speech. The District Court found that Guideline 3 was not a restriction on speech, but a disclosure requirement, because it was "self-evident" that a judicial quotation without context was inherently misleading. It also found that Guideline 3 was "reasonably related to the [S]tate's interest in preventing the deception of consumers" and was not "unduly burdensome." On appeal, the Third Circuit found that it did not have to reach the question of whether Guideline 3 was a restriction on speech or a disclosure requirement because it was not reasonably related to preventing consumer deception and was unduly burdensome, and thus failed even the lower scrutiny hurdle assigned to disclosure requirements. It reversed the District Court's decision and remanded the case.


Extended Summary: This case addresses a New Jersey Supreme Court Guideline 3, which prohibits quotations from court opinions about an attorney's abilities or legal services from websites or other advertisements. This guideline came about in direct response to the website of Andrew Dwyer and The Dwyer Firm, L.L.C. (Dwyer) - www.thedwyerlawfirm.com - which went online in 2007. On the home page of the site, two quotations from unpublished opinions by the Honorable Jose L. Fuentes, J.S.C. and the Honorable William L. Wertheimer, J.S.C. were featured prominently. The quotations were "made in the context of the [New Jersey Law Against Discrimination's] fee-shifting provisions, which require judges to assess the abilities and legal services of plaintiffs' attorneys."

Judge Wertheimer sent Dwyer a letter in April of 2008 requesting that he take his quotation down for fear potential clients would interpret it as a blanket endorsement. Dwyer refused on that grounds that the language, as presented, was neither false nor misleading. Judge Wertheimer then forwarded his letter and Dwyer's response to the New Jersey Bar's Committee on Attorney Advertising (the Committee). In February of 2009 the Committee published a Proposed Guideline providing that, "[a]n attorney or law firm may not include, on a website or other advertisement, a quotation from a judge or court opinion (oral or written) regarding the attorney's abilities or legal services."
In response to this Proposed Guideline, Dwyer added a third quotation from an opinion by the Honorable Douglas H. Hurd, J.S.C. to his website. He also submitted a comment on the Proposed Guideline calling it an unconstitutional ban on speech. In April 2013 the New Jersey Supreme Court approved Guideline 3 after amending it to allow for advertising with the full text of judicial opinions. The official comment to the guideline made clear that it was promulgated in direct response to Dwyer's website.
Dwyer filed a 1983 action seeking injunctive and declaratory relief. He also moved for a temporary restraining order and preliminary injunction to enjoin enforcement of the Guideline. The District Court denied the request for a temporary restraining order and set a full briefing schedule for the preliminary injunction motion. An agent for the Committee testified that: quotations with hyperlinks to the full opinion would still violate Guideline 3; it had no evidence that the excerpts misled potential clients, rather it had deduced that based on "common sense;" and that, aside from Judge Wertheimer, no one had complained of being misled by the excerpts.
On cross-motions for summary judgment, the District Court held that Guideline 3 was not a restriction on speech, but a disclosure requirement, because did not ban an attorney from posting judicial evaluations of performance, but merely required that the attorney provide the entire opinion for context. Further, it held as "self-evident" that a judicial quotation without context was inherently misleading. Finally, the District Court evaluated Guideline 3 under the Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio test for disclosure requirements, finding that it was "reasonably related to the [S]tate's interest in preventing the deception of consumers" and was not "unduly burdensome." Dwyer appealed these decisions as applied to himself and his firm.

On appeal both parties agreed that the attorney advertising in question was commercial speech which is "entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that afforded noncommercial speech," and cannot be subjected to "blanket suppression." The Third Circuit addressed both possible analytical tracks proposed by the District Court: restrictions on speech and disclosure requirements. The Committee maintained that Guideline 3 was merely a disclosure requirement subject to the scrutiny outlined in Zauderer, while Dwyer argued that it was a restriction on non-misleading speech and should be subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission.

Zauderer applies a lower standard of scrutiny to disclosure requirements. Disclosure requirements must only be "reasonably related to the State's interest in preventing deception of consumers," but must not impose an unjustified or undue burden. This, the Third Circuit said, is because the Supreme Court has shown a marked preference for disclosure requirements to outright prohibition as a remedy for potentially misleading speech, especially in the attorney advertising context, "because the public lacks sophistication concerning legal services, advertising by attorneys poses special risks of deception."

The Third Circuit found that it did not have to reach the question of whether Guideline 3 was a restriction on speech or a disclosure requirement because it was not reasonably related to preventing consumer deception and was unduly burdensome, and thus failed even the lower scrutiny hurdle. It said that the District Court hyperbolized that the excerpts prohibited by Guideline 3 were inherently misleading and that, even if they were to some people, the Committee failed to show that providing the full opinions would dispel the potential deception.

To be reasonably related to a state's interest in preventing deception of consumers, a disclosure requirement must plausibly dispel the misleading nature of the advertisement to those who read it. Guideline 3, the court said, does not require disclosing anything that would dispel confusion, and further, providing the full opinion to a layperson might only add to potential confusion. The court then provided a more reasonable disclosure requirement in the statement, "This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities."

The Supreme Court, in Ibanez v. Fla. Dep't of Bus. & Prof. Reg., Bd. of Accountancy, clarified that a disclosure requirement is unduly burdensome when the required disclosure is so lengthy that is "effectively rules out" the desired advertising. The Third Circuit found that Guideline 3 effectively ruled out the possibility that Dwyer could use even an accurately quoted excerpt from a judicial opinion on his abilities given the length of full judicial opinions and the preclusion of using hyperlinks.
The court also noted that if the intent behind Guideline 3 was to "make it so burdensome to quote judicial opinions that attorneys will cease doing so," that would constitute a restriction on speech and be subject to Central Hudson intermediate scrutiny. The court also noted, in a footnote, that though Dwyer's challenge was directly related to his website, the effect of Guideline 3 is "all the more stark" when applied to attorney advertising in a newspaper, a magazine, on television, or on the radio. However, the court did not reach whether Guideline 3 potential restriction would be valid in other cases. Because it was not reasonably related to the state's interest in preventing consumer deception, and was unduly burdensome to Dwyer, the court held that it violated his First Amendment right to advertise his services.
To read the full opinion, please visit: http://www2.ca3.uscourts.gov/opinarch/133235p.pdf.

Panel (if known): Ambro, Hardiman, and Greenway, Jr., Circuit Judges

Argument Date: February 18, 2014

Date of Issued Opinion: August 11, 2014

Docket Number: No. 13-3235

Decided: Reversed and remanded

Case Alert Author: Aaron Spencer

Counsel: Counsel for the Appellants: Andrew W. Dwyer, Esquire (Argued); Counsel for the Appellees: John J. Hoffman, Acting Attorney General of New Jersey; Lisa A. Puglisi, Assistant Attorney General; Susan M. Scott (Argued), Deputy Attorney General

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/12/2014 02:01 PM     3rd Circuit     Comments (0)  

August 11, 2014
  United States v. Gutierrez de Lopez- Tenth Circuit
Case Name: United States v. Gutierrez de Lopez

Headline: Tenth Circuit Affirms Conviction Despite Government's Presentation of Anonymous Witness Testimony Without Establishing Safety Concerns

Areas of Law: Criminal Law, Evidence

Issue Presented:

1. Did the District Court err in permitting a Border Patrol agent to testify about the outcome of his investigation of two undocumented individuals when he did not personally observe it?

2. Did the District Court err in permitting a Border Patrol agent to testify as an expert witness about the undocumented alien-smuggling trade?

3. Did the District Court permit a reversible error in allowing two Government witnesses to testify anonymously when the Government raised general concerns for their safety and provided defense counsel with background and impeachment material?

Brief Summary:


The Tenth Circuit held that a Border Patrol Agent's fact testimony did not violate the confrontation clause or the rules of evidence, that the same agent's expert testimony about the smuggling of undocumented individuals was helpful to the jury and permissible expert witness testimony. The District Court erred in finding that the Government provided adequate safety concerns to allow witnesses to testify anonymously, but because the defense was given the opportunity to conduct an effective cross-examination, this error was harmless beyond a reasonable doubt.

Extended Summary:

Defendant Maria Gutierrez de Lopez (Gutierrez) appealed her conviction of one count of conspiring to transport undocumented aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). On appeal, she argued that Border Patrol Agent Brian Knoll's testimony about the undocumented individual's immigration status was hearsay, that his expert testimony about alien-smuggling was not helpful to the jury, and that the Government's use of anonymous witnesses was a violation of the Confrontation Clause of the Sixth Amendment. The court affirmed the conviction.
Gutierrez was arrested after a sting operation where federal law enforcement officers caught Jesus Cabral-Ramirez and Gutierrez attempting to transport an undocumented alien to Denver, Colorado from El Paso, Texas. At trial, Agent Knoll testified about the status of the undocumented individual, and acted as an expert witness on the subject of transporting undocumented aliens, stating that moving undocumented individuals away from border regions decreased the odds that they would be apprehended.
The government also relied on testimony from confidential informants who testified anonymously at trial about conversations they had with Gutierrez. The Government supplied the witnesses' criminal backgrounds, compensation records, and immigration status to the defense, but did not provide the witnesses' actual identities. The defense was able to cross-examine the witnesses, but was not able to conduct a typical independent pre-trial investigation.
The Federal Bureau of Investigation (FBI) and United States Border Patrol arrested "John Smith" (John Smith is an alias used by the government) for attempting to transport an undocumented alien during a sting operation known as "Operation Desert Tolls," meant to investigate alien-smuggling operations in the Southwest. Mr. Smith then went to work for the FBI as a confidential informant. It was through investigation of Mr. Smith's interactions with Gutierrez regarding the transport of an individual from El Paso to Denver that the FBI apprehended Gutierrez.
The court first ruled on the hearsay issue. Agent Knoll testified that he processed the undocumented individuals in the same way that he would have processed anybody under the same circumstances. The court allowed Agent Knoll to testify that one of the individuals who was apprehended during the investigation was sent back to Mexico, while another stayed in the United States awaiting a hearing in front of an immigration judge. Although defense counsel objected that Agent Knoll did not have personal knowledge of what happened to the undocumented individuals, the trial court ruled that there was a sufficient foundation for the testimony, because Agent Knoll was an experienced Border Patrol agent and personally conducted the investigation.
The court noted that evidentiary issues are reviewed for abuse of discretion, but reviewed Confrontation Clause claims de novo. The court stated that testimony should only be excluded for lack of personal knowledge if the witness could not have actually perceived what he was testifying about. Therefore, if a rational juror could conclude that the witness had personal knowledge, the witness is allowed to testify. Because Agent Knoll was involved in the processing of the undocumented individuals and only used the immigration file to refresh his recollection of the individuals' names, a reasonable jury could conclude that he had personal knowledge sufficient to testify about the end result of the investigation. The court held that his testimony was sufficient to support the notion that he had personal knowledge of the individual's fate under Fed. R. Evid. 602. The court also held that the statements were not a violation of the Confrontation Clause because Agent Knoll appeared at trial, and testified about his own observations. Further, defense counsel had the opportunity to cross-examine the witness.
Next, the court addressed the expert testimony issue. Agent Knoll testified at trial that transporting undocumented individuals away from border towns "furthered" their ability to stay in the country undetected. The court reviewed the standard for expert testimony under Fed. R. Evid. 702, as set forth by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011). According to Rule 702, in order to give opinion testimony, an expert must have scientific, technical or specialized knowledge that will help the jury understand the evidence or determine a fact. The court held that Agent Knoll's testimony about the alien smuggling trade was helpful because the average juror was unlikely to know anything about it. The court also noted that the Fifth and Ninth Circuits had allowed experts to testify about the alien smuggling trade in criminal cases. The court also noted that Agent Knoll's comment that moving undocumented individuals away from the border "furthers" their presence was also permissible, because it was neither incorrect nor likely to cause the jury confusion, and thus was admissible.
The court then turned to the issue of anonymous witness testimony. Gutierrez argued that allowing anonymous witnesses to testify violated her Confrontation Clause rights. Additionally, she argued that the government's failure to use a curtain or disguise the witnesses' voices undermined the seriousness of the need to have the witness testify anonymously. At trial, the government explained that the ongoing alien smuggling investigation was ongoing, and that there were cartel connections to the case that made it dangerous to disclose the witnesses' names in open court, even though Gutierrez was not directly a danger to them. After the defense renewed its objection following the direct examination, the government explained that it had witnesses testify the same way in another trial because the witnesses were still part of the investigation. The government also brought up a drug and money laundering case that led to a cooperating witnesses' decapitation. Because the government relied on security concerns as the basis for not disclosing the names of the witnesses, the court allowed them to testify anonymously. The defense then cross-examined them on their criminal history, compensation, immigration status, and ties to Mexico.
The court explained that the Confrontation Clause requires the literal right to confront witnesses, and that Gutierrez had that opportunity. Additionally, the Confrontation Clause allows the defense to bring facts to the jury's attention that could allow them to draw inferences regarding the credibility of the witness. The court explained that in Smith v. Illinois, 390 U.S. 120 (1968), the Supreme Court held that the right to confrontation includes the right to ask the witness who he is and where he lives. However, the Supreme Court also noted that lower courts have a duty to protect witnesses from questions that go beyond the scope of proper cross-examination. Justice White, concurring in Smith, would have included in this category questions which endanger the safety of the witness, in addition to questions that harass, annoy, or humiliate witnesses, as noted by the majority. The court stated that in United States v. Smaldone, 484 F.2d 311, 318 (10th Cir. 1973), the Tenth Circuit interpreted the holding in Smith to include protecting the witness from danger.
Although the Tenth Circuit has not previously provided a standard for determining if anonymous testimony is permissible, it has adopted the standard used in several other circuits. Anonymous testimony should be evaluated "by asking (i) whether the government has demonstrated a threat and if so, (ii) whether anonymous testimony deprived the defendant of an opportunity for effective cross-examination."
With respect to the first prong, whether the government demonstrated a threat, the government must demonstrate why the witness need not answer the question. Smith, 390 U.S. at 134 (White, J., concurring). The threat does not have to come from the defendant. United States v. Celis, 608 F.3d 818, 832 (D.C. Cir. 2010). However, the statement must be more than a generalized statement and not just speculation. United States v. Ramos-Cruz, 667 F.3d 486, 501 (4th Cir. 2012). In Smaldone, the Tenth Circuit prevented the defense from presenting the address of a government witness who was involved in a relocation program.
After the threat has been established, a court must consider whether the defendant has been deprived of an effective cross-examination. Effective cross-examination means that the jury must have sufficient information to make a "discriminating appraisal" of the issue. Miranda v. Cooper, 967 F.2d 392, 402 (10th Cir. 1992). Again referring to Smaldone, the Tenth Circuit noted that it affirmed the district court's restriction because there was no lack of knowledge of the witnesses' background, and the defense was able to conduct a detailed cross-examination. The court noted that other circuits consider whether the defendant was given the witness's real name before testifying, and whether the defendant was allowed to cross-examine the defendant on his background.
The court noted that although one way of satisfying the effective cross-examination requirement is to provide defense counsel with the witness's name, but allow the witness to testify under an alias, there are other options. The witness's name should be considered part of a balancing inquiry. The court noted that several circuits held that the right to effective cross-examination was not violated even when the defense was not provided with the witness's name. In Ramos-Cruz, the Fourth Circuit stated that the witnesses were allowed to testify anonymously because the government disclosed the subject of the testimony. In United States v. El-Mezain, 664 F.3d 467, 493 (5th Cir. 2011), the Fifth Circuit held that the defense had access to the witnesses' "employment, nationalities, and backgrounds in order to conduct meaningful cross-examination."
Based on these decisions, the court held that if the government gives sufficient background information on the witness it wishes to call anonymously, the right to effective cross-examination is not violated. The court then conducted a de novo review of the facts in the present case to determine if the right to effective cross-examination had been violated.
Gutierrez argued that the government "failed to justify secrecy" and that the anonymous testimony deprived her of the opportunity to conduct an effective cross-examination. The government disagreed with these assertions and also argued that any error was harmless.
The court agreed that the Government did not adequately prove the need for the witnesses to testify anonymously, and that the court abused its discretion in determining that it had. The court held that specific evidence of a threat was not provided, and that the Government failed to support its generalized assertions with specific evidence of a threat.
Despite the error with regard to secrecy, the court determined that Gutierrez still had an opportunity to effectively cross-examine the witnesses. Gutierrez was able to face the witnesses before the jury and had ample impeachment material provided by the Government. The cross-examination by the defense was able to give the jury sufficient information to determine how much credibility to give to the witnesses, including a felony conviction, misdemeanor convictions for fraud and perjury, and a receipt showing payment for the testimony.
Even though the Government did not adequately show a threat to the witnesses' safety, the court determined that this was harmless error, because the Government's disclosures allowed the defense to conduct an effective cross-examination. The court noted that Confrontation Clause analyses are subject to a harmless error standard, where the beneficiary of the error must show that the error did not contribute to the guilty verdict. United States v. Chavez, 481 F.3d 1274, 1277 (10th Cir. 2007). In determining whether the error was harmless, the court considers the importance of the witness's testimony, whether the testimony was cumulative, whether there is any corroborating or contradicting evidence on material points, the extent of the permitted cross-examination and the strength of the prosecution's case. United States v. Woodard, 699 F.3d 1188, 1198 (10th Cir. 2012).
Here the prosecution had to show that the threat was harmless beyond a reasonable doubt. One witness's testimony about his conversations with the defendant about their trip from El Paso to Albuquerque was not important to the Government's case, and the other evidence presented by the Government was sufficient to convict Gutierrez beyond a reasonable doubt. The court determined that much of the anonymous witness testimony was cumulative, and that on the material points of the testimony, the Government provided corroborating evidence. Additionally, the substantial cross-examination of the anonymous witnesses based on the information provided by the Government allowed the defense to undermine the credibility of those witnesses. Finally, the Government had such a strong case that the error was harmless. The Government, in addition to surveillance evidence, had a post-arrest confession from Gutierrez. Given all of these factors, the court found that the admission of the anonymous witness testimony was harmless beyond a reasonable doubt.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/13/13-2141.pdf

Panel: Kelly, O'Brien, Matheson

Date of Issued Opinion: August 1, 2014

Docket Numbers: 13-2141

Decided: The District Court's admission of anonymous witness testimony was affirmed.

Counsel:

Marc H. Robert, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellant.

James R.W. Braun, Assistant United States Attorney (Steven C. Yarbrough, Acting United States Attorney, with him on the brief), Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellee.

Author: Matheson

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 08/11/2014 07:41 PM     10th Circuit     Comments (0)  

August 7, 2014
  Lupyan v. Corinthian Colleges Inc. - Third Circuit
Headline: Employee testimony is enough to rebut presumption for mailbox rule

Area of Law: Family Medical Leave Act/ evidence

Issues Presented: Whether the District Court erred in granting summary judgment on retaliation and interference claims under the FMLA

Brief Summary: Lupyan was terminated from her job after exceeding her twelve week leave under the FMLA. Under the FMLA, employers must provide general and personal notice of the FMLA. The Court found that Lupyan's testimony that she did not receive personal notice in the mail was enough to rebut the presumption of receipt provided by the mailbox rule and create a material issue of fact to be determined by the fact finder. The Court also determined that the employee's credibility as to whether she would have conducted her leave differently, within the restrictions of the FMLA, if she had been properly notified was an issue to be determined by the fact finder. Finally, the Court found that the employer's reasons for termination could be dismissed as pretextual and that this created a material issue of fact in dispute. The Court vacated the District Court's grant of summary judgment and remanded.

Significance (if any):

Extended Summary: This case centered on whether Corinthian Colleges, Inc. (CCI) properly notified Lupyan that her leave fell under the FMLA and whether she was terminated in retaliation for taking FMLA leave. Lupyan was an instructor at CCI. She took leave after her supervisor noticed she seemed depressed. She originally applied for personal leave but her supervisor suggested she apply for short-term disability coverage. She saw her doctor and received certification of a mental health condition which made the leave time eligible to be covered under the Family Medical Leave Act. Lupyan met with CCI's Supervisor of Administration who changed the leave to FMLA instead of personal leave and changed the return date to April 1, 2008. Lupyan notified CCI on March 13, 2008 that she was eligible to return to work. She obtained the release requested by her supervisor on April 1, 2008 but, before returning to work, was notified on April 9 that she was being terminated from her position because of low enrollment and because she had not returned to work within twelve weeks allotted by FMLA.
The FMLA requires employers to provide general and individual notice about the FMLA. While CCI did provide general notice of the FMLA in the employee handbook, the Court rejected the District Court's finding that there were no material issues of fact in dispute regarding the personal notification. The Court looked to the "mailbox rule" to determine if the letter sent by CCI to Lupyan was sufficient to provide personal notice. Under the mailbox rule there is a rebuttable presumption of receipt. The Court determined that Lupyan's contention that she had not received the letter was enough to rebut the presumption, especially because CCI could provide no corroborating evidence that Lupyan actually received the letter. Proof that the letter was sent was not enough. The Court determined that the denial of receipt of the letter is enough to create a genuine issue of material fact that should be resolved by the fact finder and thus summary judgment should not have been granted.
The Court next turned to the prejudice claim. Under the FMLA it is not enough that the employer did not provide personal knowledge of the FMLA leave. The employee must show that knowledge of the FMLA would have caused her to structure her leave differently. The Court finds that, while Luypan's testimony to this fact would be enough to establish prejudice, there is also corroborating evidence that she was able to return to work on March 13, 2008. While this date is past the twelve weeks available under the FMLA there was nothing in the record to establish that she was not able to return to work before the twelve weeks were up. The Court holds that Luypan's credibility that she could return to work needs to be determined by the factfinder.
Finally, the Court turned to the retaliation claim. The Court found that the District Court correctly analyzed this issue under a burden-shifting framework. The fact that the termination came after the FMLA leave expired does not preclude a retaliation claim under the FMLA. The Court found that after the burden shifted to CCI, it failed to establish reasons for Luypan's termination that could not be dismissed as pretextual. The Court vacated the District Court's grant of summary judgment and remanded.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/131843p.pdf

Panel (if known): McKee, Chief Judge, Fuentes, Circuit Judge, and Schiller, District Judge

Argument Date: December 17, 2013

Argument Location:

Date of Issued Opinion: August 5, 2014

Docket Number: 13-1843

Decided: Remanded

Case Alert Author: Cheri Snook

Counsel: Jeffrey B. Balicki, Esq., for appellee; Adam R. Gorzelsky, Esq., Susan N. Williams, for appellant

Author of Opinion: Chief Judge McKee

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/07/2014 02:22 PM     3rd Circuit     Comments (0)  

August 5, 2014
  Stop This Insanity Inc. Employee Leadership Fund v. Federal Election Commission
Headline: D.C. Circuit rejects First Amendment challenge to corporate segregated fund restrictions.

Area of Law: First Amendment, Federal Election Commission Act

Issue(s) Presented: Whether restrictions on solicitation by corporate segregated funds withstand First Amendment scrutiny after Citizens United.

Brief Summary: Under the Federal Election Campaign Act, corporations cannot contribute directly to candidates for federal office or parties. Prior to Citizens United, corporations could not use their treasuries to pay for independent expenditures, i.e., funds used to advocate for or against a candidate. They could, however, create separate segregated funds and engage in limited participation in the political process. These funds were subject to reporting and organizational requirements and faced solicitation constraints. Funds could only solicit corporate employees and family members twice yearly. In exchange, because the funds were so closely tied to the corporate entity, they were not required to report expenses. The Supreme Court's decision in Citizens United v. FEC, 558 U.S. 310 (2010), eliminated the ban on corporations' independent expenditures. The separate segregated funds, now functionally obsolete, remained.

Appellant, Stop This Insanity, Inc. (the Corporation), sought to use the segregated fund mechanism, with its concealed expenses benefit, to solicit the general public. The Corporation filed suit challenging the restrictions on separate segregated funds - including the solicitation restrictions - as unconstitutional. The U.S. District Court for the District of Columbia rejected the claim, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed.

The court first concluded that Citizens United was inapposite because there was no "outright ban" on political speech and because the corporation retained the right, through the less burdensome and more robust option of independent expenditures, to make unfettered political speech. The court noted that the corporation and the fund are two parts of the same whole. If the fund cannot speak on an issue, the corporation can, thus making any burden on speech "merely theoretical." The court held, moreover, that appellant had not adequately refuted the Commission's "sufficiently important interest" in preventing corruption and in knowing who is funding political speech. As such, the court concluded that the fund may solicit freely but "must do so in the light."

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/13-5008-1506093.pdf.

Panel: Brown, Griffith, and Sentelle

Argument Date: November 19, 2013

Date of Issued Opinion: August 5, 2014

Docket Number: 13-5008

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel (if known): Tara A. Brennan, Tillman J. Breckenridge, Patricia E. Roberts, and Dan Backer for appellants. Erin Chlopak, Anthony Herman, Kevin Deeley, and Steve Hajjar for appellee.

Author of Opinion: Brown

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/05/2014 04:02 PM     DC Circuit     Comments (0)  

August 4, 2014
  Bishop v. Smith- 10th Circuit
Case Name: Bishop v. Smith -- 10th Circuit

Headline: Tenth Circuit upholds district court decision declaring Oklahoma state constitution prohibition on same-sex marriage unenforceable

Areas of Law: Constitutional Law

Issue Presented:

Is the State of Oklahoma's ban on same-sex marriage licenses unconstitutional?

Brief Summary:

The Tenth Circuit affirmed the Northern District of Oklahoma's ruling that Oklahoma's same-sex marriage ban was unconstitutional, using the court's previous decision in Kitchen v. Herbert. The court found that the plaintiffs had standing to challenge the laws, and that the Tulsa County Court Clerk was a proper defendant. The plaintiff's non-recognition claim, however, was not properly preserved for appeal.

Extended Summary:

The majority addressed the issue of standing prior to discussing the facts or the merits of the case. First, defendants challenged whether state constitutional provisions can be attacked without also challenging similar state statutes. Second, defendants challenged whether the Court Clerk is a proper defendant for the non-recognition aspect of the case. The majority concluded that state constitutional amendments subsume all existing state laws in Oklahoma. Therefore, an injunction against the constitutional provision would provide relief for the claimed injury. With respect to the second issue, the court held that because the Tulsa County Court Clerk does not have the power to redress the non-recognition issue, plaintiffs Gay Phillips and Susan Barton do not have standing to sue.

The majority noted that its ruling from Kitchen v. Herbert, 2014 U.S. App. LEXIS 11935 (10th Cir. June 25, 2014) controls the outcome of the case. The majority noted its holdings from that decision:

(1) plaintiffs who wish to marry a partner of the same sex or have such marriages recognized seek to exercise a fundamental right; and (2) state justifications for banning same-sex marriage that turn on the procreative potential of opposite-sex couples do not satisfy the narrow tailoring test applicable to laws that impinge upon fundamental liberties.

Using this criteria, the Court affirmed the district court's decision.

Plaintiffs Bishop and Baldwin sought a marriage license from the Tulsa County Court Clerk in February 2009 and were denied because they were of the same gender. Bishop and Baldwin alleged that they had to pay $1,300 in legal fees for power of attorney and health care proxy procedures because of their inability to marry. Additionally, they alleged that their inability to marry tells others that their relationship should not be respected. Plaintiffs Bishop and Barton took part in a civil union in Vermont in 2001, were married in Canada in 2005, and were married again in California in 2008. Oklahoma, however, refused to recognize their marriage. Bishop and Barton also alleged that they suffered tax consequences as a result of the Defense of Marriage Act ("DOMA").

Plaintiffs filed suit against the Oklahoma Governor and Attorney General in 2004 challenging State Question 711 (SQ 711), which bans the marriage or recognition of a marriage between a same-sex couple. Plaintiffs also named the United States President and Attorney General in their challenge to DOMA. The district court denied the Governor and State Attorney General's motion to dismiss in 2006. On appeal, the Tenth Circuit stated that the Plaintiffs did not have standing to sue because the recognition of marriages in Oklahoma was within the purview of the judiciary, not the executive branch. Plaintiffs then filed an amended complaint, naming Sally Howe-Smith as the defendant in her official capacity as Court Clerk for Tulsa County.

In 2011, the United States stated that it would not defend DOMA on the merits. Instead, the Bipartisan Legal Advisory Group intervened to defend the law. At summary judgment, Howe-Smith filed an affidavit stating that she had no power to recognize a marriage license issued in another state regardless of whether the couple were a same-sex or opposite-sex couple.

After U.S. v. Windsor, 133 S. Ct. 2675 (2013), was issued, the district court held that Plaintiffs Phillips and Barton lacked standing to challenge DOMA because state law, not federal law resulted in the non-recognition of their marriage; that any challenge to Section 3 of DOMA was moot under Windsor; that Phillips and Barton lacked standing to challenge the non-recognition part of the Oklahoma amendment because Smith was not involved in the recognition of marriages; and that Part A of SQ 711 violated the Equal Protection Clause, permanently enjoining it. The injunction was stayed pending appeal.

Howe-Smith asserted that Bishop and Baldwin lacked standing to bring the suit because they did not challenge a state statute that bars same-sex couples from marrying, thus failing to establish redressability. Howe-Smith relied on White v. U.S., 601 F.3d 545 (6th Cir. 2010), where a group of plaintiffs challenged the Animal Welfare Act. The plaintiffs alleged that they had suffered economic injury as a result of the Act, but the court found that the plaintiffs lacked standing because all fifty states and the District of Colombia banned cockfighting, so the plaintiffs' injuries would not have been redressed. Howe-Smith also relied on a number of sign ordinance cases.

The majority held that the cases relied on by Howe-Smith were distinguishable, because the Oklahoma statute banning same-sex marriage was not independently enforceable from SQ 711. SQ 711, the majority held, took the place of the state statute.

Next, Howe-Smith argued that the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), is controlling because lower federal courts may not reject on-point summary dismissals regardless of doctrinal developments. The majority noted, however, that in Hicks v. Miranda, 422 U.S. 332 (1975), lower federal courts could reject a summary dismissal if doctrinal developments indicated that the decision is no longer controlling.

Howe-Smith then raised the argument that children have an interest in being raised by their biological parents, and that serving this interest is a compelling governmental goal. The majority responded by noting that banning same-sex marriage is not narrowly tailored to meet that goal. The majority noted several Oklahoma statutes that allow children to be raised by people other than their biological parents, including egg and sperm donation laws, human embryo transfer laws, and adoption laws. Furthermore, it noted that Oklahoma allows infertile opposite-sex couples to marry, even though they may raise non-biological children. The majority found that the law was both under-inclusive of couples who will raise children that are not their biological children, and over-inclusive of same-sex couples that have the fundamental right to choose not to raise children.

The majority then addressed a law of the case issue where, in Bishop v. Okla. ex rel. Edmonson, 333 F.App'x 361 (2009) (unpublished) ("Bishop I"), the court found that neither the Barton nor the Bishop couple had standing to bring the lawsuit because they could not prove redressability because the Governor and the Attorney General were not proper defendants. The majority noted that this conclusion did not necessarily become law of the case, because it could have been dicta, it could have dealt only with an older marriage of the Barton couple, or that, as a jurisdictional issue, it was not subject to law of the case. However, the majority found none of these reasons persuasive.

Applying the law of the case doctrine, the court determined that Bishop I did not require standing to sue on the non-recognition claim brought by the plaintiffs. Three exceptions apply to the law of the case - "(1) when new evidence emerges; (2) when intervening law undermines the original decision; and (3) when the prior ruling was clearly erroneous and would, if followed, create a manifest injustice." (Citations omitted.)

The majority stated that the first exception was the most applicable because Howe-Smith did not explain the "manifest injustice" required for the third exception on which she wished to rely. Additionally, the affidavit that she relied on to make her law of the case argument was not given to the court until after Bishop I was decided. The majority explained that the affidavit could properly be considered new evidence. However, the new evidence demonstrated that the Barton couple lacked standing to challenge the non-recognition aspect of the law. The majority considered and rejected a number of counter-arguments to their position.

Plaintiffs then attempted to establish standing by stating that Howe-Smith has "shut the courthouse doors" on them, and that an injunction against the non-recognition aspect of SQ 711 would redress this injury. Plaintiffs' failure to challenge the law on that ground, rather than on equal protection and due process grounds deprived the district court of the opportunity to evaluate standing on that claim. The majority found that the non-recognition challenge was properly dismissed.

Finally, the court addressed Plaintiffs' assertion that the non-recognition claim should be struck down under severability law regardless of standing. The majority concluded that this argument was not properly preserved for appeal, and that no sufficient reason for overlooking that lack of preservation was presented.

Judge Holmes issued a concurring opinion. Although Judge Holmes fully endorsed the reasoning of the majority, he wrote a concurrence to comment on the district court's decision not to rely upon animus doctrine in striking down SQ 711, noting that several district court opinions from other jurisdictions have done so. Judge Holmes reviewed what animus is, how it is found, and what a court must do if it is found. Judge Holmes concluded that applying the animus doctrine was inappropriate because the law was not broadly sweeping, and could not be considered unusual.

Judge Kelly concurred in part and dissented in part. Judge Kelly concurred that the Barton couple lacked standing to challenge the non-recognition provision, but disagreed with the majority on whether the law of the case doctrine applied. Additionally, Judge Kelly dissented that the plaintiffs had standing because they did not challenge the state statutes in addition to the constitutional provisions, and would have dismissed the appeal without reaching the merits of the case. On the merits, Judge Kelly disagreed with the majority and would have concluded that rational basis review applied and would have upheld Oklahoma's definition of marriage, using the same analysis he used in his dissent in Kitchen.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-5003.pdf

Panel: Kelly, Lucero, Holmes

Date of Issued Opinion: July 18, 2014

Docket Numbers:
14-5003 & 14-5006

Decided: The District Court for the Northern District of Oklahoma was affirmed, but a stay was issued pending any potential writ of certiorari.

Counsel:

James A. Campbell, Alliance Defending Freedom, Scottsdale, Arizona (Byron J. Babione and David Austin R. Nimocks, Alliance Defending Freedom, Scottsdale, Arizona, and John David Luton, Assistant District Attorney, District Attorney's Office, Tulsa, Oklahoma, with him on the briefs), for Defendant - Appellant/Cross-Appellee.

Don G. Holladay, Holladay & Chilton PLLC, Oklahoma City, Oklahoma (James E.Warner III, Holladay & Chilton PLLC, Oklahoma City, Oklahoma, and Joseph T. Thai, Norman, Oklahoma, with him on the briefs), for Plaintiffs Appellees/Cross-Appellants.*

Author: Lucero

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 08/04/2014 09:25 PM     10th Circuit     Comments (0)  

August 1, 2014
  Hatim v. Barack Obama - D.C. Circuit
Headline: New Guantanamo policies on lawyer meetings are reasonable security precautions

Area of Law: Habeas Corpus; Guantanamo Detainees

Issue(s) Presented: Whether two policies imposing new security measures for detainee meetings with lawyers violate detainees' right to counsel.

Brief Summary: In 2012 and 2013, the government implemented two new policies governing lawyer visits to detainees at Guantanamo Bay. One policy required all lawyer meetings to be held in a nearby camp to which detainees were transported in vans, rather than in the camps where the detainees were housed. The second policy subjected detainees to a "non-invasive search of the genital area" before and after meeting with visitors in conformity with standard military prison procedures. Appellants, a group of detainees, challenged both policies in habeas corpus proceedings, claiming that they had the purpose and effect of discouraging detainees from meeting with their lawyers. Appellants claimed that their poor health made it too difficult to travel by van to the nearby camp and that their religious beliefs prohibited them from submitting to the genital search. They sought an order permitting them to meet with counsel without complying with the new policies. The U.S. District Court for the District of Columbia granted the motion in part, finding that the new procedures were an "exaggerated response to overstated security concerns" that were principally aimed at restricting access to counsel.

The U.S. Court of Appeals for the District of Columbia Circuit reversed. The court first concluded that it had jurisdiction to hear the claim given recent circuit precedent allowing challenges to conditions of confinement in a federal habeas petition. The court ruled that the applicable standard was Turner v. Safley, 482 U.S. 78 (1987), which held that courts should uphold prison regulations that "impinge on inmates' constitutional rights" as long as those regulations are "reasonably related to legitimate penological interests." Applying the four-factor Turner test, the court found that there was a "valid, rational connection" between the new policies and the "legitimate governmental interest" in prison security put forward to justify them. The court determined that the policies addressed the risks posed to prisoners and guards by hoarded medication and smuggled weapons while leaving detainees with other means to exercise their right to counsel. Finally, the court concluded that the district court had improperly placed the burden of proving that the new policies were reasonable on the military, rather than requiring Appellants to prove that they were not.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...e/13-5218-1505518.pdf.

Panel: Garland, Henderson, Griffith

Argument Date: December 9, 2013

Date of Issued Opinion: August 1, 2014

Docket Number: 13-5218

Decided: Reversed

Case Alert Author: Albertine Guez

Counsel: Edward Himmelfarb, Stuart F. Delery, and Matthew M. Collette for appellants. S. William Livingston, Brian E. Foster, David H. Remes, Brent Nelson Rushforth, and David Muraskin for appellees.

Author of Opinion: Griffith

Case Alert Circuit Supervisors: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/01/2014 02:07 PM     DC Circuit     Comments (0)  

July 31, 2014
  United States v. Anderson - Eight Circuit
Case Name United States v. Anderson

Headline Eighth Circuit panel affirms denial of motion to dismiss an indictment count concerning distribution of a "morphed image" constituting child pornography

Area of Law First Amendment

Issue(s) Presented Whether the district court properly denied defendant's motion to dismiss the count of the indictment against him concerning distribution of child pornography, where the image in question was a digitally altered image of a child's face onto an adult female's body.

Brief Summary A grand jury charged Defendant with distribution of child pornography, distribution of child pornography to a minor, production of child pornography, and enticement of a minor to engage in unlawful sexual activity. The charges resulted from Defendant sending a digitally altered image, also called a "morphed image," to his eleven-year-old half-sister, M.A. The image portrayed an adult female and male having sexual intercourse, but Defendant had digitally superimposed M.A.'s face over the face of the female. The altered image was sent to M.A.'s Facebook account, with a caption stating in substance, "This is what we will do." Defendant later admitted to law enforcement officials that he created and sent the image.

The relevant statutes define child pornography as including any "visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct." (Emphasis added.) Defendant moved to dismiss the indictment, arguing that this definition is unconstitutionally overbroad under the First Amendment as applied to the morphed image that he sent. The district court denied the motion to dismiss, holding that the morphed image was child pornography that was not protected speech. After entering a conditional guilty plea to the distribution of child pornography charge, Defendant appealed the district court's order denying his motion to dismiss.

A panel of the Eighth Circuit affirmed the District Court's denial of Defendant's motion to dismiss the indictment. The Court first held that the image was not squarely within the U.S. Supreme Court's precedent holding that morphed images that both implicate the interests of real children and depict an actual crime are categorically unprotected speech, because no children were sexually abused in the production of the image. However, the Court further held that the statute, as applied to Defendant, did satisfy the strict scrutiny test under the First Amendment, which requires that the prohibition must be justified by a compelling interest and narrowly drawn to serve that interest. In this case, safeguarding the physical and psychology well-being of the minor M.A. was a compelling government interest. The Court also held that the statute was narrowly tailored, as there was no less restrictive means for the government to protect M.A. from exploitation and psychological harm resulting from distribution of the morphed image than to prohibit Defendant from distributing it.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/14/07/132337P.pdf

Panel Circuit Judges Colloton, Gruender, and Wollman

Date of Issued Opinion July 17, 2014

Decided Affirmed

Docket Number 13-2337

Counsel Michael Norris for the United States and Jennifer Gilg for Defendant

Author Circuit Judge Colloton

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

Edited: 08/04/2014 at 09:31 AM by Joelle Larson

    Posted By: Joelle Larson @ 07/31/2014 10:22 AM     8th Circuit     Comments (0)  

July 30, 2014
  Sissel v. U.S. Department of Health & Human Services
Headline: Affordable Care Act's "shared responsibility payment" is not a revenue-raising bill within the meaning of the Origination Clause of the Constitution.

Area of Law: Affordable Care Act, Origination Clause

Issue(s) Presented: Whether the Affordable Care Act's penalty for failure to maintain minimum health care coverage is a "Bill for raising Revenue" under the Constitution's Origination Clause that can only be originated by the House of Representatives.

Brief Summary: Section 5000A of the Affordable Care Act (ACA) requires non-exempt individuals to maintain minimum essential health insurance coverage and provides a penalty ("shared responsibility payment") for failure to do so subject to certain exceptions. Plaintiff, an artist and small business owner, challenged the individual mandate and shared responsibility payment of Section 5000A as violative of the Commerce Clause and the Origination Clause. The United States District Court for the District of Columbia dismissed the complaint, and the United States Court of Appeals for the District of Columbia Circuit affirmed.

The unanimous D.C. Circuit panel held that plaintiff's Commerce Clause argument was clearly foreclosed by National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (NFIB). Turning to the Origination Clause challenge, the court noted that the clause states that "[a]ll Bills for raising Revenue shall originate in the House of Representatives." Plaintiff contended that the shared responsibility payment was a "Bill for raising Revenue" that originated in the Senate, not in the House, in violation of the Origination Clause. Rejecting plaintiff's threshold claim, the D.C. Circuit held that the shared responsibility payment was not a "Bill[] for raising Revenue." The court cited consistent Supreme Court precedent holding that revenue bills are those that "levy taxes in the strict sense," not bills that incidentally create revenue, and indicating that the inquiry turned on the statute's "primary purpose." Because NFIB made clear that the purpose of the ACA is to increase the number of Americans covered by health insurance and decrease the cost of health care, the court concluded that the ACA was not a bill for raising revenue. The court noted that any revenues from the shared responsibility payment are incidental and that success of the ACA actually translates into less revenue from Section 5000A payments, not more. The court rejected plaintiff's argument that the fact that Section 5000A may have been enacted solely pursuant to the taxing power brought it within the ambit of the Origination Clause, noting that many exercises of taxing power have a primary purpose other than raising of revenue and thus are not governed by the Origination Clause at all.

To read the full opinion, please visit ">http://www.cadc.uscour...v/i.....504947.pdf.


Panel: Rogers, Pillard, and Wilkins

Argument Date: May 8, 2014

Date of Issued Opinion: July 29, 2014

Docket Number: 13-5202

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel: Timothy M. Sandefur, Paul J. Beard II, and Daniel A. Himebaugh for appellant. Alisa B. Klein, Stuart F. Delery, Ronald C. Machen Jr., Beth S. Brinkmann, and Mark B. Stern for appellees.

Author of Opinion: Rogers

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/30/2014 10:06 AM     DC Circuit     Comments (0)  

July 29, 2014
  American Meat Institute v. U.S. Department of Agriculture
Headline: En Banc D.C. Circuit applies Zauderer beyond context of preventing consumer deception to uphold mandatory labels on meat products.

Area of Law: First Amendment; consumer protection

Issue(s) Presented: Whether Zauderer or Central Hudson governs challenge to compelled country-of-origin labels on meat products, and whether the regulation requiring the labels withstands scrutiny under the appropriate standard.

Brief Summary: A federal statute requires country-of-origin labels on meat products, defining "country of origin" based on where the animal was born, raised, and slaughtered. 7 U.S.C. § 1638a(a)(2). Implementing this requirement, the Secretary of Agriculture issued a 2013 Rule requiring precise information about the location of each step in the production process and eliminating flexibility with respect to commingled animals. The American Meat Institute (AMI) challenged the 2013 Rule on statutory and First Amendment grounds. An initial panel of the United States Court of Appeals for the District of Columbia Circuit affirmed the district court's denial of preliminary injunction, finding plaintiffs unlikely to succeed on the merits. The panel believed that Zauderer extends beyond the prevention of consumer deception but, because prior opinions left this conclusion in some doubt, proposed that the case be reheard en banc. The full court voted to do so.

On rehearing en banc, the full court agreed that Zauderer is not limited to preventing consumer deception and that the rationale of the case applied to other government interests. Rejecting rigid application of the Central Hudson test, the court noted that there are "material differences between disclosure requirements and outright prohibitions on speech" and that the comparatively lenient Zauderer test governed the former context, where the speaker's interest in opposing forced disclosure of purely factual information is "minimal." The court stopped short of drawing clear lines between the two tests, though, noting that the Zauderer test employed in the case of compulsory factual disclosures can really be seen as a specialized application of Central Hudson, "where several of Central Hudson's elements have already been established." Turning to the government's interests, the court credited as substantial the government's asserted interest in enabling consumers to choose American-made products and providing information to mitigate concern over food-borne illness outbreaks. Finally, the court found that the regulation had a reasonable fit to the asserted interest because a disclosure mandate self-evidently assures that recipients get the mandated information. Because the Rule passed muster under the Zauderer test, the court reinstated the panel decision affirming the district court.

Judge Rogers concurred on the basis that Zauderer applied to disclosure requirements but rejected the suggestion that Zauderer was simply a specialized application of the Central Hudson test. Judge Kavanaugh, concurring in the judgment, noted that the country-of-origin requirements were longstanding and commonplace requirements. Although he agreed with the majority opinion, he analyzed the case under the Central Hudson test.

Judge Henderson and Judge Brown dissented on the basis that Zauderer was intended solely to prevent consumer deception and that broadening its scope created a new standard of review "even more relaxed than rational basis review."

For the full text of opinion, please visit http://www.cadc.uscourts.gov/i...e/13-5281-1504951.pdf.

Panel: En banc

Argument Date: May 19, 2014

Date of Issued Opinion: July 29, 2014

Docket Number: 13-5281

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel: Catherine E. Stetson, Jonathan L. Abram, Judith E. Coleman, Mary Helen Wimberly, and Elizabeth B. Prelogar for appellants. Daniel Tenny, Stuart F. Delery, Ronald C. Machen Jr., and Mark B. Stern for appellees.

Author of Opinion: Williams

Case Alert Circuit Supervisors: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/29/2014 04:23 PM     DC Circuit     Comments (0)  

  Department of Texas, Veterans of Foreign Wars v. Texas Lottery Commission - Fifth Circuit
Headline: Fifth Circuit Strikes Down Texas Law Prohibiting Charities from Using Bingo Proceeds to Fund Political Advocacy.

Area of Law: Texas Bingo Enabling Act; First Amendment.

Issue Presented: Whether the political advocacy restrictions contained in the Texas Bingo Enabling Act violate the First Amendment.

Brief Summary: The issue presented in this appeal is the constitutionality of political advocacy restrictions contained in the Texas Bingo Enabling Act ("the Bingo Act"). The Bingo Act allows charitable organizations to raise money by holding bingo games on the condition that the money is used only for the organizations' charitable purpose and not for political advocacy. A group of charities filed suit challenging these restrictions in the U.S. District Court for the Western District of Texas, arguing that the restrictions violated their speech rights under the First Amendment. The district court granted summary judgment in favor of the challengers and issued a permanent injunction preventing enforcement of the speech restrictions. A panel of the U.S. Court of Appeals for the Fifth Circuit reversed the district court, but the panel decision was vacated when the Fifth Circuit decided to rehear the case en banc. The en banc Fifth Circuit affirmed the district court's summary judgment and permanent injunction.

Extended Summary: In 2010, Plaintiffs-Appellees, who are a host of nonprofit organizations licensed to conduct bingo in Texas ("the Charities"), brought suit under 42 U.S.C. § 1983 against the commissioners and two executive officers of the Texas Lottery Commission, the state agency responsible for bingo licensing and regulation ("the Commission"). The Texas Bingo Enabling Act ("the Bingo Act") allows charitable organizations to raise money by holding bingo games on the condition that the money is used only for the organizations' charitable purpose and not for political advocacy. The Charities alleged that two of the political advocacy restrictions, Sections 2001.456(2) - (3), violated their right to freedom of speech.

Sections 2001.456(2) - (3) state that:
A licensed authorized organization may not use the net proceeds from bingo directly or indirectly to: ... (2) support or oppose a measure submitted to a vote of the people; or (3) influence or attempt to influence legislation.

The First Amendment challenge was twofold: First, the Charities claimed that Sections 2001.456(2) - (3) are facially unconstitutional because they are a direct abridgement of speech with no compelling or substantial justifying interest. Second, they claimed the law unconstitutionally discriminates between the Charities and similarly situated businesses, such as racetracks, which are not prohibited from using their revenue for political purposes.

The U.S. District Court for the Western District of Texas granted summary judgment in favor of the Charities, permanently enjoining the Commission from enforcing the invalid provisions. The Commission appealed and a unanimous Fifth Circuit panel reversed the district court's summary judgment in favor of the Charities and its permanent injunction preventing enforcement of the challenged statutory provisions. After panel rehearing, a panel majority issued a revised opinion that again reversed the district court's judgment. Thereafter, the Fifth Circuit granted en banc rehearing.

The Fifth Circuit en banc held that (1) the Bingo Act creates a regulatory regime that grants the Charities a benefit - in the form of a license - to conduct bingo games, rather than a government subsidy; (2) the challenged provisions constitute facial restrictions on the Charities' political speech, and therefore strict scrutiny applies; and (3) the political advocacy restrictions in the Bingo Act do not withstand strict scrutiny. The Commission failed to articulate a compelling interest justifying the challenged provisions, but even if the interests raised by the Commission were compelling, the restrictions are not narrowly tailored. Consequently, the provisions at issue are facially invalid under the First Amendment.

Judge Dennis dissented on the grounds that Supreme Court precedent does not permit strict or heightened scrutiny. The charitable bingo program's limitation on the use of bingo proceeds for lobbying and other political speech, which the legislature has decided not to promote, does not "suppress" that speech and therefore should not trigger strict or heightened scrutiny under the First Amendment.

Judge Graves's dissent joined Judge Dennis's but also argued that the Bingo Act's restrictions on the use of bingo proceeds for political advocacy are permissible conditions on a government subsidy and do not operate to penalize speech.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/11/11-50932-CV2.pdf.

Panel: En banc

Argument Date: 1/22/2014

Date of Issued Opinion: 7/28/2014

Docket Number: No. 11-50932

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Anatole Robert Barnstone for Plaintiffs-Appellees Department of Texas, Veterans of Foreign Wars of the United States; Amvets Department of Texas, Incorporated; Amvets Post 52, Incorporated; Amvets Post 52, Auxiliary, Incorporated; The Great Council of Texas, Improved Order of Redmen; Redmen War Eagle Tribe No. 17; Redmen Tribe No. 21 Geronimo; Redmen Ramona Council No. 5; The Institute for Disability Access, Incorporated, Doing Business as Adapt of Texas; Temple Elks Lodge No. 138, Benevolent and Protective Order of Elks of the United States of America, Incorporated; Bryan Lodge No. 859, Benevolent and Protective Order of Elks of the United States of America, Incorporated; Austin Lodge No. 201, Benevolent and Protective Order of Elks of the United States of America, Incorporated; and Anna Fire and Rescue, Incorporated. Arthur Cleveland D'Andrea for Defendants-Appellants Texas Lottery Commission; Gary Grief, Executive Director in his Official Capacity; Sandra K. Joseph, Director of Charitable Bingo in her Official Capacity; Mary Ann Williamson, Commissioner in her Official Capacity; Unknown Commissioner in Official Capacity; and J. Winston Krause, Commissioner in his Official Capacity.

Author of Opinion: Chief Judge Stewart (dissents by Judge Dennis and Judge Graves)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/29/2014 12:20 PM     5th Circuit     Comments (0)  

July 24, 2014
  United States v. Smith - 8th Circuit
Headline Eighth Circuit panel affirms exclusion of defendant's expert testimony and proposed jury instructions concerning laser beam aimed at aircraft

Area of Law Federal Aviation Safety

Issue(s) Presented Whether the district court properly excluded defendant's expert testimony concerning the perceived range of a laser and rejected defendant's proposed jury instructions regarding an "intent to hit" the aircraft.

Brief Summary A jury convicted the Defendant of violating 18 U.S.C. § 39(a), which makes it a criminal offense to "knowingly aim the beam of a laser pointer at an aircraft . . . or at the flight path of such an aircraft." The conviction stemmed from the Defendant pointing a laser beam into the sky and illuminating the cockpit of a police helicopter. At trial, Defendant argued that though he pointed a laser beam at the aircraft, he believed that the laser beam would not actually reach the helicopter and therefore did not "knowingly aim" at it.
In support, Defendant proposed a jury instruction stating that he could not knowingly aim his laser beam at the aircraft if he mistakenly believed that the laser beam could not reach the aircraft. He also attempted to introduce expert testimony regarding the perceived range of a laser to support his mistaken belief. The District Court refused the proposed instruction and excluded the expert testimony based on the Court's interpretation of the statute as simply requiring knowledge that the laser beam was pointed at an aircraft, with no intent to hit the aircraft required.

On appeal of the conviction, a panel of the Eighth Circuit, in its first interpretation of the statute, affirmed the District Court's rulings. The panel concluded that the use of the word "aim" in the statute does not require an "intent to hit" the object at which the laser beam is directed. Rather, the panel held that based on the common usage of the term "aim at" and the wording of the statute as a whole, "knowingly aim" means simply to knowingly point a laser beam at an aircraft, and does not require an offender to intend for the laser beam to strike the aircraft at issue.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/14/06/132728P.pdf

Panel Chief Judge Riley and Circuit Judges Beam and Shepherd

Date of Issued Opinion June 27, 2014

Decided Affirmed

Docket Number 13-2728

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

Author Chief Judge Riley

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

Edited: 07/24/2014 at 11:42 AM by Joelle Larson

    Posted By: Joelle Larson @ 07/24/2014 11:30 AM     8th Circuit     Comments (0)  

July 22, 2014
  Halbig v. Burwell
Headline: IRS health insurance tax credits available only to residents of states that established their own health care Exchanges.

Area of Law: Affordable Care Act; Administrative Procedure Act

Issue(s) Presented: Whether the Affordable Care Act permits the IRS to provide tax credits for insurance purchased through federal Exchanges.

Brief Summary: The Patient Protection and Affordable Care Act (ACA) was enacted in 2010 as a comprehensive effort "to increase the number of Americans covered by health insurance and decrease the cost of health care." The ACA focuses on helping individuals purchase health insurance through Exchanges, which, among other things, determine what health plans satisfy federal and state standards and operate websites that facilitate enrollment. Fourteen states and the District of Columbia have established Exchanges; the remaining states rely on Exchanges operated by the federal government through the Secretary of Health and Human Services. Under section 36B of the Internal Revenue Code, enacted as part of the ACA, qualified individuals who purchase insurance through an Exchange receive a tax credit to offset some of the cost of their insurance. The text of section 36B defines the amount of the credit with reference to "an Exchange established by the State under 1311 of the [ACA]." In May 2012, the Internal Revenue Service promulgated a regulation interpreting section 36B to allow credit for insurance purchased through either a state- or federally-established Exchange.

Appellants, a group of individuals and employers residing in states that did not establish state Exchanges, challenged that regulation under the Administrative Procedure Act, claiming that it was inconsistent with the language of section 36B and thus "not in accordance with law." The district court held that the ACA's text, structure, purpose, and legislative history make "clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges," and that even if the ACA were ambiguous, the regulation would represent a permissible construction entitled to deference under Chevron.

The United States Court of Appeals for the District of Columbia Circuit reversed the district court decision. The court found that the plain language of section 36B required an Exchange to be state-created in order to trigger the subsidies. While the court conceded that section 1321 of the ACA, which directs the HHS Secretary to establish an Exchange when a state is unable or unwilling to do so, created equivalence between state and federal Exchanges in some respects, it held that the equivalence did not go as far as finding "federally-established Exchanges" to be, in fact or legal fiction, "Exchanges established by the State."

The court rejected the government's argument that adopting this interpretation of section 36B would render other sections of the ACA absurd. Warning that an overbroad application of the absurdity doctrine "contradicts the rule-of-law objectives implicit in the Constitution's strict separation of lawmaking from judging," the court determined that the government's contention that giving effect to the literal meaning of the text of 36B would make other sections of the statute superfluous or nonsensical did not cross the "high threshold of unreasonableness" necessary to conclude that the statute did not mean what it said.
Turning to the legislative history of the ACA, the court found that the government failed to present evidence that the literal meaning of the stature was "demonstrably at odds with the intentions of [its]drafters." The court also found the government's argument that section 36B should be read to harmonize with the larger goals of the ACA, which depend on the availability of subsidies, unpersuasive, concluding that the legislative record provided too little indication of intent to supersede the statutory text.

Judge Edwards argued in dissent that section 36B was ambiguous when read in the larger context of the ACA, and that the regulation treating state and federally-created Exchanges the same for purposes of the subsidy was a permissible interpretation of the statute under Chevron.


For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/14-5018-1503850.pdf.

Panel (if known): Griffith, Edwards, and Randolph

Argument Date (if known): March 25, 2014

Date of Issued Opinion: July 22, 2014

Docket Number: 14-5018

Decided: Reversed

Case Alert Author: Albertine Guez

Counsel (if known): Michael A. Carvin, Yaakov M. Roth, and Jonathan Berry for appellants. Stuart F. Delery, Ronald C. Machen, Beth S. Brinkmann, Mark B. Stern, and Alisa B. Klein for appellees.

Author of Opinion: Griffith

Dissent by: Edwards

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/22/2014 05:41 PM     DC Circuit     Comments (0)  

  United States v. Holmes and 8th Circuit
Headline Eighth Circuit panel affirms district court discretionary decision to permit U.S. Marshall to testify as expert on the iconography of the Mexican drug underworld

Area of Law Evidence

Issue(s) Presented Whether the district court abused its discretion when it permitted a U.S. Marshall to give expert testimony on the subject of narco-saint iconography

Brief Summary A jury convicted Defendants Holmes and Rendon of "conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846." The district court permitted a U.S. Marshall to testify at trial. The Marshall "linked to drug trafficking several images and shrines in the home of Rendon [and another alleged co-conspirator]." The Marshall focused on the image of Jesus Malverde, a "'narco saint' hailed as a 'Mexican Robin Hood,'" as one indicator of drug activity. The Defendants objected to the testimony, but the Eighth Circuit panel concluded that the district court did not abuse its discretion in permitting the Marshall's opinion.

The Defendants argued that the district court's decision to admit the testimony constituted reversible error on several grounds. They argued first that the Marshall was unqualified as an expert. But the Eighth Circuit panel concluded that the Marshall's study and travel experiences, his self-published materials, and his law-enforcement trainings established sufficient qualifications. The Defendants argued next that the Marshall's opinion was unreliable because of the many non-drug traffickers who have statues of Malverde. But the panel concluded that the reliability rate of the Marshall's "non-scientific" opinion could be based upon the Marshall's own observations and experiences. The Defendants then argued that the Marshall's opinion was irrelevant and unfairly prejudicial. But the panel cited to other Eighth Circuit opinions accepting "expert testimony on the modus operandi of drug dealers." The Defendants then finally argued that the Marshall's testimony constituted impermissible "drug courier profile evidence." But the panel distinguished between drug-courier profile evidence (which explains the "investigative techniques" law enforcement uses to identify drug couriers) and "modus operandi" evidence (which explains the "paraphernalia of drug trafficking)." As a result, the panel affirmed the district court's ruling and the jury conviction.

Judge Kelly concurred in the ultimate result, but disagreed with the panel majority on the admission of the Marshall's testimony. First, Judge Kelly concluded that the Marshall's opinion was in reality not modus operandi testimony but actually drug-courier profiling. Second, Judge Kelly concluded that the Marshall's opinion, while perhaps based on personal knowledge and experience, was not produced from his law enforcement knowledge and experience but rather from self-study and self-publication activities.

The full text of the opinion may be found at Text

Panel Circuit Judges Gruender, Benton, and Kelly

Date of Issued Opinion May 12, 2014

Decided Affirmed

Docket Number 13-1660

Counsel Alexander D. Morgan, for the United States; James Phillips, for Defendant Holmes; Richard Eugene Holiman, for Defendant Rendon

Author Circuit Judge Benton

Case Alert Circuit Supervisor Bradley G. Clary, Clinical Professor of Law, University of Minnesota Law School

    Posted By: Bradley Clary @ 07/22/2014 11:01 AM     8th Circuit     Comments (0)  

July 21, 2014
  Ralls Corp. v. Committee on Foreign Investment in the United States
Headline: The Defense of Production Act's ban on judicial review of Presidential Orders does not preclude courts from hearing due process challenges.

Area of Law:
Defense of Production Act; Federal Courts; Due Process

Issue Presented
: Whether a foreign-owned company ordered by the President to divest itself of American holdings under Section 721 of the Defense of Production Act may make a procedural due process challenge to that order despite a statutory provision stating that the actions and findings of the President "shall not be subject to judicial review."

Brief Summary: In March 2012, Defendant Ralls Corporation, an American company owned by Chinese nationals, purchased four American companies formed to develop windfarms in Oregon. The Committee on Foreign Investments in the United States (CFIUS) reviewed the purchase under Section 721 of the Defense Production Act of 1950 (DPA), which gives it authority to review transactions "which could result in foreign control of any person engaged in interstate commerce in the United States." CFIUS decided that the proximity of the planned windfarms to restricted airspace and a military bombing zone threatened national security and issued an order in July 2012 directing Ralls to cease construction and operations at the site. In September, the President completed his review of the transaction and, agreeing with CFIUS, issued a Presidential Order prohibiting the transaction and ordering Ralls to divest itself of the windfarm assets. Although Section 721 of the DPA states that the Presidential Order "shall not be subject to judicial review," Ralls filed suit in the United States District Court for the District of Columbia challenging the order on numerous grounds, including that the company was not offered the opportunity to review and rebut the evidence on which the decision was based, in violation of the Due Process Clause. The District Court found that Section 721 barred judicial review of many of the claims but rejected Ralls' due process charge for failure to state a claim. Ralls appealed.

The United States Court of Appeals for the District of Columbia Circuit reversed. First the Court held that it had jurisdiction to review the due process claim. The court reasoned that a statutory bar on judicial review precludes consideration of constitutional claims only where there is "clear and convincing evidence" that Congress so intended. Examining the text and legislative history of the statute, the court found no evidence that Congress had intended to exclude constitutional challenges to the process. The court distinguished McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of Judicial Conference of the United States, 264 F.3d 52 (D.C. Cir. 2001), on the basis that Congress had provided an alternative mechanism for review of process-based challenges in that statute that would have rendered review by an Article III court superfluous.

The court then rejected the government's claim that review of the Order presented a non-justiciable political question. Applying the six disjunctive prongs of Baker v. Carr, the court found that the due process claim did not call for review of either the President's decision that the acquisition of the project companies threatened national security or the President's prohibition of the transaction in order to mitigate the national security threat.

Turning to the merits of the due process claim, the court rejected the district court's conclusion that Ralls's fully-vested state law property interests were "too contingent for constitutional protection" given the likelihood of CFIUS review. The court then concluded that the Constitution required permitting Ralls access to the unclassified evidence on which CFIUS relied and an opportunity to rebut that evidence. Because the process afforded Ralls fell short of this constitutional minimum, the court reversed the dismissal.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/13-5315-1502552.pdf.

Panel: Henderson, Brown, and Wilkins

Argument Date: May 5, 2014

Date of Issued Opinion: July 15, 2014

Docket Number: No. 13-5315

Decided: Reversed and remanded.

Case Alert Author: Albertine Guez

Counsel (if known): Paul D. Clement, Viet D. Dinh, H. Christopher Bartolomucci, and George W. Hicks, Jr. for the appellant. Douglas N. Letter, Stuart F. Delery, Ronald C. Machen, Jr., and Sonia K. McNeil for the appellees.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/21/2014 10:55 AM     DC Circuit     Comments (0)  

July 16, 2014
  Hoven v. Walgreen Co. - Sixth Circuit
Headline: Sixth Circuit upholds Walgreen's firing of employee who shot at armed gunmen during store robbery, rejecting claim that the termination violated public policy.

Areas of Law: Employment law; the United States Constitution; the Michigan Constitution; and Michigan Compiled Laws.

Issue Presented: Did Walgreen violate Michigan public policy when it fired an at-will employee for shooting at a masked gunman during a store robbery, in self-defense, using a handgun for which the employee had a permit?

Brief Summary: A Walgreen employee sued for wrongful termination of employment in violation of public policy after he fired his handgun in self-defense during a robbery at his Walgreen store. Walgreen removed the action to the federal court. The district court granted judgment on the pleadings in favor of Walgreen. The employee appealed. The Sixth Circuit affirmed the district court and held that the employee's termination for exercising his rights of self-defense, defense of others, and carrying a concealed weapon did not violate public policy and thus was not actionable under Michigan law. The Sixth Circuit concluded that Michigan's Self-Defense Act did not confer any general right to engage in self-defense or defense of others.

Extended Summary: Jeremy Hoven, a full-time pharmacist at Walgreen, first experienced an armed robbery in 2007. After the robbery, Hoven asked Walgreen to improve store security. When Walgreen denied his request, Hoven underwent training and got a concealed-weapon permit. He then began carrying a concealed handgun at work.
About three years after the first robbery, Hoven was working the overnight shift when two masked individuals with guns entered the store. Hoven tried to dial 911, but one of the masked gunmen pointed a gun at him. When Hoven saw the masked gunman's finger jerking on the gun's trigger, Hoven drew his own weapon and fired several times. No one was injured in the incident.

After a company investigation, Walgreen officials told Hoven that he had violated the company's nonescalation policy. Walgreen gave Hoven the option to resign or be terminated. He refused to resign, and Walgreen fired him. Hoven sued Walgreen alleging that his termination violated seven public - policy considerations, which the Sixth Circuit addressed.
First, the Court relied on precedent that established three instances when a termination of employment would violate public policy: (1) The employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty; (2) the employee is discharged for the failure or refusal to violate the law in the course of employment; or (3) the employee is discharged for exercising a right conferred by a well-established legislative enactment. McNeil v. Charlevoix Cnty., 772 N.W.2d 18, 24 (Mich. 2009).

Applying these three factors to the employee's case, the Court found no cause of action under the first two instances, but it did consider whether the employee's claims fit under the third instance: exercising a right conferred by a well-established legislative enactment.

To begin, the Sixth Circuit stated that under Michigan law a private actor does not violate public policy when it fires an employee based on a constitutional provision. According to the Sixth Circuit, although the Second Amendment of the United States Constitution and the Michigan Constitution limit state interference with an individual's right to bear arms, private actors are not bound by those limitations. Therefore, the Court found that the employee's federal and state constitutional arguments were not valid.

The Sixth Circuit also rejected the employee's reliance on the Michigan Criminal Jury Instructions and the Michigan Self-Defense Act. The Court held that the employee's arguments were unpersuasive, as the criminal jury instructions were not a legislative enactment, and there is no general "right" to engage in self-defense. Rather the law conferred a right to receive a rebuttable presumption of self-defense. Therefore, the Court rejected these public-policy claims.

Finally, the Sixth Circuit considered the employee's argument about the state's concealed-weapon permit law, which states that an employer may not prohibit employees from receiving a license to carry a concealed weapon and carrying a concealed weapon. The court noted that a section of that statute expresses that the right to carry a concealed weapon in the course of employment may be limited. Therefore, Walgreen was permitted to limit an employee's use of a concealed weapon on its premises. Accordingly, the Court held that the concealed-weapon permit law did not support the employee's claim.

For all these reasons, the Court affirmed the district court's grant of judgment on Walgreen's pleadings.

Panel: Judge Moore, Gibbons, and Sutton

Date of Issued Opinion: June 2, 2014

Docket Number: 13-1011

Decided: Petition for review of a motion for judgment on the pleadings in favor of Walgreens

Counsel: ARGUED: Daniel D. Swanson, SOMMERS SCHWARTZ, P.C., Southfield, Michigan, for Appellant. Adam S. Forman, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellee. ON BRIEF: Daniel D. Swanson, Jesse L. Young, SOMMERS SCHWARTZ, P.C., Southfield, Michigan, for Appellant. Adam S. Forman, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellee.

Link to full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/14a0115p-06.pdf

Case Alert Author: Ogenna Iweajunwa

Author of Opinion: Judge Moore

Case Alert Circuit Supervisor: Professor Erika Breitfeld

    Posted By: Mark Cooney @ 07/16/2014 03:23 PM     6th Circuit     Comments (0)  

July 15, 2014
  Ali Hamza Ahmad Suliman Al Bahlul v. United States
Headline: Ex Post Facto Clause no bar to conspiracy charge against Guantanamo-based 9/11 conspirator tried under the Military Commission Act of 2006.

Area of Law: Ex Post Facto Clause; Military Commission Act (MCA) of 2006; International Law

Issue(s) Presented: Whether, consistent with the Military Commission Act of 2006 and the Ex Post Facto Clause, the government can prosecute a 9/11 conspirator detained at Guantanamo for conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes.

Brief Summary: Bahlul, a native of Yemen, joined al Qaeda in Afghanistan in the late 1990s and worked his way into Osama bin Laden's inner circle. He produced recruitment videos celebrating the suicide bombing attack on the U.S.S. Cole and was intimately involved in the planning and execution of the 9/11 terrorist attacks. Bahlul was captured in Pakistan in December 2001 and transferred to the U.S. Naval Base at Guantanamo Bay, where U.S. forces have detained him ever since as an enemy combatant.

Initial charges against Bahlul were stayed pending the Supreme Court's decision in Hamdan v. Rumsfeld. After the Hamdan court found that the military commission procedures then in place violated the Uniform Code of Military Justice and the four Geneva Conventions of 1949, Congress enacted the Military Commission Act of 2006, which attempted to cure those procedural flaws. In 2008, military prosecutors renewed charges against Bahlul for conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes. Bahlul admitted all of the underlying factual allegations but challenged the legitimacy of the military commission. The commission convicted him of all three offenses and sentenced him to life imprisonment. Bahlul appealed. During the pendency of Bahlul's appeal, a panel of the United States Court of Appeals for the District of Columbia Circuit held, in Hamdan II, that the 2006 MCA did not authorize retroactive prosecution for conduct not already subject to criminal sanction before passage of the act and that providing material support for terrorism was not a pre-existing war crime triable by military commission. Applying Hamdan II, a panel of the D.C. Circuit vacated Bahlul's conviction on all counts. The government successfully petitioned for rehearing en banc. In its appeal, the government conceded that the Ex Post Facto Clause applied to trials by military commission pursuant to the MCA.

The en banc majority reversed as to the conspiracy claim and affirmed the vacatur of the material support and solicitation claims. The court began by overruling Hamdan II on the basis that the MCA unambiguously proclaims its retroactive effect, thus precluding application of the constitutional "avoidance canon." Because Bahlul had not raised an Ex Post Facto claim below, however, the majority reviewed only for plain error. The majority assumed, without deciding, that the Ex Post Facto Clause applied to military commission proceedings given the government's concession on appeal. The court found no merit to Bahlul's Ex Post Facto challenge to the conspiracy conviction on two alternative grounds. First, the court found that conspiracy was already criminalized under other federal statutes, and, while the elements of conspiracy under the MCA differed from statutory conspiracy, those differences did not seriously affect the fairness, integrity, or reputation of the commission's proceedings. Second, the court noted that the Supreme Court had not resolved the question of whether conspiracy to commit war crimes was a law-of-war offense triable by a military commission. Given the Supreme Court's inability to resolve the issue, the majority reasoned, it could not be "plain error" for a military commission to hear the claim. Turning to the other two charges, material support and solicitation, the court agreed with Bahlul that they were not subject to criminal sanction prior to the enactment of the MCA and that the prosecution of these claims was therefore foreclosed by the Ex Post Facto Clause. The court rejected the government's claims that prosecutions for material support dated back to the Civil War, finding that the examples cited did not "establish that such conduct was tried by law-of-war military commissions" and that the comparison was "too distinguishable and imprecise." The court further held that solicitation was "plainly not traditionally triable" and thus upheld Bahlul's Ex Post Facto challenge.

The panel majority was joined in its entirety by four of seven judges. Several judges wrote separately, each grappling with the government's concession that the Ex Post Facto Clause applies in the military commission context and taking issue with the majority's decision to review for plain error rather than to definitively resolve the question.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/11-1324-1502277.pdf.

Panel (if known): En banc

Argument Date (if known): September 30, 2013

Date of Issued Opinion: July 14, 2014

Docket Number: 11-1324

Decided: Affirmed in part and reversed in part.

Case Alert Author: Albertine Guez

Counsel (if known): Michel Paradis, Mary R. McCormick, and Todd E. Pierce for petitioner. Ian H. Gershengorn, Steven M. Dunne, John F. De Pue, Jeffrey M. Smith, Francis A. Gilligan and Edward S. White for respondent.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/15/2014 06:34 PM     DC Circuit     Comments (0)  

  Fisher v. University of Texas at Austin - Fifth Circuit
Headline: Fifth Circuit Upholds Race-Conscious Admissions Policy at University of Texas.

Area of Law: Constitutional Law: Equal Protection.

Issue Presented: Whether the University of Texas violates the Equal Protection Clause by considering applicants' race as one part of its admissions plan.

Brief Summary: The University of Texas at Austin admits most of its incoming class through the state's Top Ten Percent Plan (which considers applicants' class rank in high school) and the remainder of its class through a more holistic process that includes consideration of race as one component. The university contends that some consideration of race is necessary in order to achieve a critical mass of minority students. In a prior round of litigation, the U.S. Court of Appeals for the Fifth Circuit upheld the admissions program against a constitutional challenge brought by a white student who was denied admission. Last year, the Supreme Court vacated and remanded, concluding that the Fifth Circuit had not properly applied the "strict scrutiny" standard that applies to the government's use of racial classifications. In particular, the Supreme Court faulted the Fifth Circuit for showing excessive deference to the university's claim that consideration of race was necessary to achieve the goal of a diverse student body. On reconsideration, the Fifth Circuit has reaffirmed its prior ruling. Having scrutinized the university's plan again, the Fifth Circuit concluded that the university's consideration of race is narrowly tailored to achieving the compelling goal of diversity and that race-neutral alternatives would not suffice. The university's admissions plan is therefore lawful.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub\09/09-50822-CV2.pdf.

Panel: Circuit Judges King, Higginbotham, and Garza.

Argument Date: 11/13/2013

Date of Issued Opinion: 7/15/2014

Docket Number: No. 09-50822

Decided: Affirmed

Counsel: Bert Walter Rein, Wiley Rein, L.L.P., for Plaintiff-Appellant Fisher; Gregory George Garre, Latham & Watkins, L.L.P., for Defendant-Appellee University of Texas at Austin.

Author of Opinion: Judge Higginbotham (Judge Garza dissenting)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/15/2014 04:45 PM     5th Circuit     Comments (0)  

June 29, 2014
  Kitchen v. Herbert-- 10th Circuit
Case Name: Kitchen v. Herbert -- 10th Circuit

Headline: Tenth Circuit holds that right of same-sex couples to marry and have marriages recognized by the state is fundamental; state laws banning same-sex marriage violate Fourteenth Amendment right to due process.

Areas of Law: Constitutional Law

Issue Presented:

May a state deny a citizen the benefit and protection of State marital laws based on the gender of person the citizen chooses to marry?

Brief Summary:

The State of Utah passed a series of laws, including Utah Code § 30-1-2(5), which voided marriages between same sex couples, § 30-1-4.1, which provided that Utah will only recognize marriages between a man and a woman, and a constitutional amendment, Amendment 3, which added a provision to the Utah Constitution that defined marriage as a legal union between a man and woman, and stated that only marriages between a man and woman would be recognized. This Amendment was passed by voters, and became article I, section 29 of the Utah Constitution. Collectively, the laws are known as "Amendment 3."

Plaintiffs sued the Governor of Utah, the Attorney General of Utah, and Salt Lake County Clerk in Federal District Court for the District of Utah, alleging that Amendment 3 violated their rights to due process and equal protection under the law. Plaintiffs asked the court for a declaratory judgment that Amendment 3 was unconstitutional and requested an injunction stopping its enforcement. The district court ruled for the plaintiffs on their cross-motion for summary judgment, holding that the laws denied the plaintiffs equal protection, because it classified the plaintiffs on the basis of sex and sexual orientation.

The Tenth Circuit affirmed the decision of the district court, but found that the laws violated the plaintiff's substantive due process right, because the right to marry is a fundamental right. After finding that the right to marry was fundamental, the Tenth Circuit held that the State of Utah had provided no compelling reason for the law, and that the law was not narrowly tailored enough to meet the strict scrutiny standard necessary to overcome a substantive due process challenge. Additionally, although the issue was not raised by the parties, the court addressed the appellant's standing to challenge the ruling of the district court, because the Salt Lake County Clerk did not appeal the ruling. The majority found that the Governor and Attorney General were proper defendants to the underlying suit and did have standing to challenge the ruling.

Judge Kelly concurred and dissented in part, agreeing with the majority that the appellants did have standing to challenge the decision, but disagreeing that same sex marriage fell into the category of a fundamental right, and stating that the State of Utah had met the rational basis standard for justifying a law facing an equal protection challenge.

Extended Summary:

The State of Utah passed Utah Code Sections 30-1-2(5), 30-1-4.1, and, with the approval of voters, Amendment 3 to the Utah Constitution to ensure that same-sex marriages would not be legally performed or recognized in the State of Utah (collectively known as Amendment 3). The laws included marriages performed in other states. The laws were passed because state legislators and citizens felt threatened by state-court opinions allowing same-sex marriage.

Plaintiffs challenged the laws on the grounds that they were denied several marriage benefits afforded to opposite-sex couples, including the ability to file joint state tax returns, hold marital property, claim benefits under their partners' pension or make medical decisions when their partners become ill. Additionally, plaintiffs state that they were not afforded the "dignity, respect, and esteem" of marriage. Plaintiffs Archer and Call were married in Iowa, but the State of Utah refused to recognize their marriage.

Plaintiffs brought suit in United States District Court for the District of Utah against the Governor and Attorney General of Utah, and the Clerk of Salt Lake County in their official capacities. Plaintiffs stated that the laws violate their right to due process under the Fourteenth Amendment by depriving them of the fundamental right to choose the person they want to marry and to have that marriage recognized. Additionally, they claimed that Amendment 3 violated the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs asked the court for a declaratory judgment that Amendment 3 was unconstitutional and an injunction barring its enforcement.

On cross motions for summary judgment, the district court ruled for the plaintiffs, holding that all citizens, regardless of sexual orientation, had a fundamental right to marry. Additionally, the District Court found that Amendment 3 violated the Equal Protection Clause because the laws classified citizens on the basis of sex and sexual orientation, without a rational basis. The district court permanently enjoined enforcement of Amendment 3. The Governor and Attorney General then appealed and moved to stay the district court's decision. Both the Tenth Circuit and the district court denied the stay, but the Supreme Court granted the stay pending a decision by the Tenth Circuit.

The majority first addressed the issue of standing, even though it was not raised by the parties. The court held that at least four of the plaintiffs had standing because they were unable to obtain marriage licenses from the Salt Lake County Clerk and identified harm that flowed from this denial, including financial injury. The plaintiffs proved that the County Clerk caused their injury because the Clerk denied them a marriage license and demonstrated that an injunction barring enforcement of Amendment 3 would cure the injury. Therefore, the plaintiffs demonstrated the necessary "meaningful nexus" between the defendant and the injury.

The majority then considered whether the Governor and the Attorney General had standing to challenge the district court's ruling, because the Salt Lake County Clerk did not appeal the decision. The court noted that it determined in Bishop v. Oklahoma ex rel. Edmondson, 333 F.App'x 361 (10th Cir. 2009), that Oklahoma's Governor and Attorney General were not the proper defendants in a challenge to Oklahoma's prohibition on same-sex marriage. In that opinion, the court based its decision on the fact that marriage licensing in Oklahoma was a judicial power. The district court clerk in Oklahoma was charged with issuing marriage licenses, and as such, the executive branch did not have the authority to issue a marriage license or record a marriage. In contrast, Utah marriage licenses are issued by county clerks. The Governor is charged with supervising executive and ministerial offices, like the county clerk, and as such had standing to challenge the suit. Furthermore, the Attorney General had the duty to supervise or assist county, district, and city attorneys in the discharge of their duties. Because knowingly issuing a marriage license to a same-sex couple is a misdemeanor in Utah, the Attorney General would supervise any charges filed against a county clerk who issued a marriage license to a same-sex couple. This authority, combined with the Governor and Attorney General's "willingness to exercise" their duties related to the enforcement of Amendment 3, made them appropriate defendants in this appeal. Particularly because the Attorney General is empowered to direct the Utah State Tax Commission to recognize Archer and Call's out of state marriage, Archer and Call had standing to sue the Attorney General for their injuries related to Amendment 3's non-recognition provisions. Archer and Call were able to sue the Governor for the same reason - the Governor had the ability to appoint and remove state tax commissioners from office. Therefore, by nature of their supervisory power, the Governor and the Attorney General had the requisite nexus between Amendment 3 and the injuries suffered by plaintiffs. As proper defendants to the underlying lawsuit, they had standing to challenge the district court's decision on appeal, even without the Salt Lake County Clerk.

The majority began its analysis of Amendment 3 by discussing the history of litigation regarding same-sex marriage. The court stated that Baker v. Nelson, 409 U.S. 810 (1972) was decided on a summary dismissal for want of a federal question. In Baker, the Minnesota Supreme Court upheld a ban on same-sex marriage, stating that marriage meant a union between two persons of the opposite sex, and uniquely involved procreation and child rearing. It then stated that the Fourteenth Amendment was not to be used to restructure the institution of marriage, and that there was no irrational discrimination that violated Equal Protection Clause. The majority noted that although summary dismissals are to be treated as a decision on the merits, it agreed with the district court that "doctrinal developments" found in Lawrence v. Texas, 539 U.S. 558 (2003) and United States v. Windsor, 133 S.Ct. 2675 (2013) had superceded Baker, noting that nearly every federal court since Windsor was decided has determined that Baker is no longer controlling. Because doctrinal developments had occurred since Baker, the majority determined it could make a decision on the merits of the issue. Lawrence held that individuals have the right to make intimate contact with another person, including homosexual persons. Windsor determined that the federal government does not have the right to deny recognition of a marriage license issued by a state to a same-sex couple. Although the court recognized the federalism concerns set forth in Windsor and stressed by the appellants, the majority stated that the federal government has the power to make determinations that affect marital rights, including insurance proceeds, immigration, and Social Security benefits. Furthermore, the court stated that Windsor framed the issue as a question of essential liberty rather than a federalism issue.

Next, the majority explained the standards of review to be used. A grant of summary judgment is reviewed de novo, and a permanent injunction is reviewed for an abuse of discretion. Summary judgment is granted to a moving party only if the evidence viewed in the light most favorable to the non-moving party entitles the moving party to judgment as a matter of law. In order to obtain a permanent injunction, a plaintiff must show "(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued will not adversely affect the public interest." The court only reviewed the merits aspect, because the appellants only challenged the merits.

The majority then determined whether the right to marry an individual of the same sex qualified as a fundamental liberty. A fundamental liberty must be deeply rooted in the Nation's history and "implicit in the concept of ordered liberty such that neither liberty nor justice would exist if it were sacrificed." The majority noted that the right to marry itself is unquestionably a fundamental right.

Appellants argued that the right to marry only applied to opposite-sex marriage, and that same-sex marriage was not deeply rooted in the Nation's tradition because it had only recently been considered by citizens that two same-sex individuals might aspire to marry. The majority responded to this argument by showing that the court had always discussed the right to marry as a broad right, pointing to Loving v. Virginia, 388 U.S. 1 (1967), which held that banning interracial marriage was unconstitutional, and Zablocki v. Redhail, 434 U.S. 374 (1978), which held that a state cannot ban individuals in arrearage of child support obligations from marrying. Appellants asserted that Loving and Zablocki were distinguishable because they both discussed opposite-sex couples, and only opposite-sex couples are procreative. Appellants pointed to Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), and Carey v. Population Servs. Int'l, 31 U.S. 678 (1977), for evidence that the Supreme Court had discussed the rights of marriage and procreation together. The majority responded to this by stating that the Supreme Court has discussed the fundamental right to marry and the right to procreate as separate. The majority noted that Washington v. Glucksberg, 521 U.S. 702 (1997), which appellants relied on heavily, described Loving as a marriage case, where it described Skinner as a procreation case. Furthermore, the majority stated that Turner v. Safley, 482 U.S. 78 (1987), invalidated the concept that marriage is fundamental because of procreation potential. In Turner, the Supreme Court considered the right of inmates to marry, and invalidated a law barring inmates who had not procreated from marrying. The majority stated that the issue in Turner was framed broadly - not as the right of "inmate marriage," but whether the fact of incarceration made it impossible for inmates to benefit from marriage. Turner stressed that the importance of marriage is based on personal aspects, including emotional support and public commitment. The majority then stated that this holding is consistent with other Supreme Court decisions where the court has discussed the freedom to marry, including the freedom to choose one's spouse, in Cleveland Bd. of Educ. V. LaFleur, 414 U.S. 632 (1974), Hodgson v. Minnesota, 497 U.S. 417 (1990), Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) and Carey.

Appellants argued that the personal elements inherent in the institution of marriage, such as the freedom to choose one's spouse, to decide whether to have children, and to publicly proclaim commitment to one another are not the principal interests the State has in regulating marriage. The majority found that these personal elements reinforce the childrearing family structure and support the dignity of each person. It then noted that the dignity factor was emphasized in Windsor.

The majority then noted the similarity of Windsor to the difficulties faced by plaintiffs Archer and Call, who were married in Iowa but could not have their marriage recognized in Utah. It stated that the fundamental right to marry included the right to remain married.

Next, the majority stated that the appellants' assertion that the right to marry is fundamental because of its connection with procreation is undermined by the fact that individuals have a fundamental right to choose not to procreate, citing Eisenstadt v. Baird, 405 U.S. 438 (1972), which stated that individuals have the right to choose whether to bear a child regardless of if they are married or single, and Griswold v. Connecticut, 381 U.S. 479 (1965), which recognized the right of married couples to use contraception. Furthermore, the court noted that nearly 3,000 children in Utah were being raised by same-sex couples, even though same-sex couples are banned under Utah law from jointly adopting children. The majority pointed to this information as evidence that childrearing is exercised by both opposite-sex and same-sex couples, and even single individuals.

The majority also noted that biological relationships are not determinative of the existence of a family, citing Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977). It noted that Windsor stated that restrictions on same-sex marriage humiliated children of same-sex couples and made it difficult for them to understand the integrity of their own family. The laws, as stated in Windsor, discouraged those children from being considered members of a family.

Appellants stated that the Tenth Circuit would have to define marriage in order to find that there is a right to marriage, and that marriage, by definition, excluded same-sex couples. The majority responded to this by stating that the Supreme Court has described the right to marry in broad terms, and stated that a claimed liberty cannot be framed as being exercised by a specific class of persons. The court noted that before Windsor, many courts had found that that the right to marry could not be exercised by same-sex couples, but the majority stated that it is impermissible to focus on class-membership of the individual exercising a right when determining a liberty interest. The court rejected the appellants' assertion that plaintiffs are excluded from marriage by definition as circular, because many states do permit same-sex marriage, and because appellants' reliance on the definition of marriage is not meaningful. The majority again pointed to Windsor, where the Court invalidated Section 3 of DOMA, which limited the federal definition of marriage to a legal union between a man and woman. The majority then noted that definitions are not immune from constitutional scrutiny.

The majority then noted that Lawrence precluded the narrow definition of the fundamental right sought by appellants. In Lawrence, the Court rejected its previous holding in Bowers v. Hardwick, 478 U.S. 186 (1986), where the court framed the liberty right as the right of homosexuals to engage in sodomy. In Lawrence, the Court recognized that there was no history of a right to engage in homosexual sex, but stated that the characterization of the right in Bowers was too narrow. The majority then noted that Lawrence alluded to marriage, stating that individuals in a homosexual relationship may seek autonomy for the personal decisions related to marriage, just as heterosexual people do.

The majority then stated that the Fifth and Fourteenth Amendments have not changed, but that as knowledge and understanding of what it means to be gay or lesbian changes, the liberty of those who were previously excluded should be recognized.

Having determined that the right to marry is a fundamental liberty, the majority then analyzed whether Amendment 3 was "narrowly tailored to serve a compelling state interest." The court considered the four justifications for Amendment 3 - that the laws furthered the state's interest in "(1) 'fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children'; (2) children being raised by their biological mothers and fathers - or at least by a married mother and father in a stable home'; (3) 'ensuring adequate reproduction'; and (4) accommodating religious freedom and reducing the potential for civic strife.'"

The majority stated that the first three interests did not meet strict scrutiny. The common thread between the first three claims is the link between marriage and procreation. However, the majority found that the law is under-inclusive, because the recognition of valid marriages does not differentiate between couples that procreate and couples that do not. The elderly, infertile, and those who do not wish to have children or choose to adopt are still free to marry and have out-of-state marriages recognized in Utah. The majority further illustrated its point by demonstrating that marriages between first cousins in Utah are predicated on the inability to have children. The majority also noted that several district courts had rejected similar attempts to ban same-sex marriage. The majority also explained that under-inclusiveness also invalidated the prohibition on marriage by child-support debtors in Zablocki, because the challenged provisions did not limit the incurrence of financial commitments of those debtors other than through marriage. The law in Eisenstadt, which prohibited distribution of contraceptives to unmarried persons, was also under-inclusive on the grounds that using contraceptives is immoral. The majority also noted that a law basing marriage on a couple's ability and willingness to procreate also raised its own set of concerns. Finally, in response to appellant's statement that banning non-procreative individuals from marrying is impracticable, the majority explained that administrative challenges do not render a system constitutional, and noted that the statute authorizing marriage of non-procreative first cousins was inconsistent with appellant's position.

The majority stated that the State's interest in childbearing and childrearing did not share a causal connection to a ban on same-sex marriage. The majority relied on Windsor that the recognition of same-sex couples will not alter the personal decisions of opposite-sex couples.

Appellants asserted that the same-sex marriage ban is justified by the preference for children to be raised by a man and woman. However, the majority found that law was not narrowly tailored to meet this goal because the state does not restrict the right to marry based on parenting guidelines. The majority relied on Stanley v. Illinois, 405 U.S. 645 (1972), where the Court invalidated a law making the State the custodian of children of unwed parents upon the death of the mother. The Court concluded that not all unmarried fathers are unfit to raise their children, as asserted by the state. Similarly not all opposite-sex couples are preferable over any same-sex couple. The majority was unwilling to accept on faith the argument that children raised by opposite-sex parents are better off than children raised by same-sex parents, because arguments based on speculation cannot survive strict scrutiny. The court again pointed to Windsor, stating that the refusal to recognize same-sex marriage harms the children of those couples.

The majority addressed the final justification of accommodating religious freedom and reducing civic strife by stating that the Supreme Court has held that public opposition cannot form the basis for violating a fundamental right. Furthermore, the decision related only to civil marriage, not to religious ceremonies. Religious institutions, the majority emphasizes, are still free to practice their own traditions as they always have.

The majority then addressed appellants' concerns about the value of democratic decision-making by stating that fundamental rights may not be limited by voters, nor does the experimental value of federalism outweigh an individual's right to due process and equal protection.

Appellants raised a concern that recognizing same-sex marriage began a slippery slope toward recognizing polygamy and incest. However, the majority explained that its basis for finding that the plaintiffs were seeking to exercise a fundamental right was based on Supreme Court jurisprudence recognizing a right to engage in same-sex relationships, whereas the Court had not recognized a right to engage in polygamy or incest. Appellants also contended that the decision would lead to the privatization of marriage, but the majority dismissed that because the appellants provided no authority to support that this would render the statutes constitutional.

Finally, the majority stressed that its opinion did not endorse a finding that those who oppose same-sex marriage are intolerant. The court stated that it was not making a judgment on the minds and hearts of those who support Amendment 3.

The court stayed its decision pending the filing of a petition for a writ of certiorari.

Judge Kelly, concurring in part and dissenting in part, agreed with the majority that the Governor and Attorney General were proper defendants, that the appeal was permissible without the Salt Lake County Clerk, and that the plaintiffs had standing to challenge Amendment 3. Judge Kelly disagreed, however, that Baker was not controlling and that there was a fundamental right to marry that could be exercised by the plaintiffs. Judge Kelly performed an analysis of the issue under the equal protection clause, and determined that Amendment 3 was rationally related to the State's interests in "(1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area."

The dissent stated that because the Constitution makes no mention of the regulation of marriage, it is a power that should be exercised by the States. Furthermore, although the Court has determined that marriage is a fundamental right, those decisions have always involved opposite-sex couples. The dissent emphasized the importance of allowing states to be "laboratories of democracy," stating the forcing all States to recognize same-gender marriage "turns the notion of a limited national government on its head."

The dissent stated that Baker must still be controlling because summary dismissals by the Supreme Court are still considered decisions on the merits that are to be followed by lower courts until the Supreme Court makes a contrary decision.

The dissent addressed plaintiffs' argument that excluding same-sex couples from marriage is a gender-based classification. However, the dissent noted that Amendment 3 does not treat men and women differently - same-sex male and same-sex female couples are equally subject to the laws. Because there is no disparate treatment between men and women, there is no basis for a gender discrimination equal protection claim.

Plaintiffs then argued that discrimination on the basis of sexual orientation required heightened scrutiny. However, the dissent noted that the Supreme Court had not assigned a level of scrutiny to sexual orientation, and that the Tenth Circuit had already rejected heightened scrutiny in Price-Cornelson v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008), Walmer v. U.S. Dep't of Defense, 52 F.3d 851, 854 (10th Cir. 1995), and Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992).

The dissent explains that the fundamental right to marry does not extend to same-sex couples because same-sex marriage is a recent concept. Thus, there is no deeply rooted tradition in the Nation's history required for a fundamental rights classification. Romer, Lawrence and Windsor created protection for "moral and sexual choices" of same-sex couples, but did not create a fundamental right to same-gender marriage, or state that heightened scrutiny should be applied to classifications based on sexual orientation. Furthermore, the dissent noted that the Court in Lawrence specifically did not address the issue of same-sex marriage. Additionally, the dissent notes that Windsor did not limit the ability of a state to outlaw same-sex marriage or create a fundamental right to same-sex marriage, but mandated that the federal government defer to States to make decisions regarding marriage.

With respect to rational basis, the dissent noted that extreme deference should be given to the decisions of the State, and that any plausible reason that the classification could advance will satisfy rational basis. Furthermore, the legislature need not have actually been motivated by the reason given, and a law may be over-inclusive or under-inclusive and still meet rational basis. The dissent noted that the procreative capabilities of opposite-gender couples are a permissible consideration by the legislature. Simply because the fundamental right to marriage has been discussed separate from procreation does not mean that legislatures may not consider procreation in regulating marriage.

Finally, the dissent urged that the court should refrain from using the Fourteenth Amendment as a means for imposing its views upon others.


To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/13/13-4178.pdf

Panel: Kelly, Lucero, Holmes

Date of Issued Opinion: June 25, 2014

Docket Number: 13-4178

Decided: Ruling that Amendment 3 is unconstitutional and preliminary injunction was affirmed, but a stay enforcing the injunction was issued until the Supreme Court of the United States had made a decision on any potential writ of certiorari.

Counsel:

Gene C. Schaerr, Special Assistant Attorney General, Salt Lake City, Utah (Brian L. Tarbet, Chief Deputy Attorney General, Parker Douglas, Chief of Staff and General Counsel, Stanford E. Purser, and Philip S. Lott, Assistant Utah Attorneys General, Salt Lake City, Utah, and John J. Bursch, Warner Norcross & Judd LLP, Grand Rapids, Michigan, and Monte N. Stewart, Boise, Idaho, with him on the briefs), for Defendants - Appellants

Peggy A. Tomsic, Magleby & Greenwood PC, Salt Lake City, Utah (James E. Magleby and Jennifer Fraser Parrish, Magleby & Greenwood PC, Salt Lake City, Utah, and Kathryn D. Kendell, Shannon P. Minter, David C. Codell, National Center for Lesbian Rights, San Francisco, California, with her on the brief), for Plaintiffs - Appellees.*

Author: Lucero

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Barbara Bergman @ 06/29/2014 07:58 PM     10th Circuit     Comments (0)  

June 23, 2014
  Kuretski v. Commissioner of the IRS
Headline: D.C. Circuit holds U.S. Tax Court is part of the Executive Branch, and President's authority to remove Tax Court judges is constitutional.

Area of Law: Constitutional Law, Separation of Powers

Issue(s) Presented: Whether the President's authority to remove Tax Court judges for cause is a violation of constitutional separation of powers.

Brief Summary: Appellants, Peter and Kathleen Kuretski, failed to pay federal income taxes for the 2007 tax year. After assessing penalties and interests, the IRS attempted to collect the unpaid amount through a levy on the couple's home. In July, 2010, after failed attempts to reach a settlement with the IRS, the Kuretskis received notice that their request for a compromise and an abatement of penalties has been rejected. The Kuretskis unsuccessfully appealed that notice. A month later, they filed a motion for reconsideration and a motion to vacate in the Tax Court, claiming for the first time that the Tax Court exercised judicial power under Article III of the Constitution, rendering 26 U.S.C. § 7443(f), which enables the President to remove Tax Court judges for cause, a violation of constitutional separation of powers. The Tax Court denied both motions, declining to address the Article III because the Kuretskis had, without explanation, failed to raise it until after the court's initial decision. The Kuretskis appealed, and both parties stipulated that the United States Court of Appeals for the District of Columbia Circuit was the proper venue for review.

After determining that the Kuretskis had standing to raise the claim, the D.C. Circuit affirmed the Tax Court decision on both constitutional and non-constitutional grounds. Appellants' principal contention on appeal was that, because the Tax Court exercises "judicial power" under Article III of the Constitution, or, alternatively, because it is part of the Legislative Branch, the federal statute authorizing the President to remove Tax Court judges for cause "leaves those judges in an unconstitutional bind" because they "must fear removal from an actor in another branch."

The D.C. Circuit rejected that argument, concluding that the Tax Court is part of the Executive Branch. Applying the "public rights" doctrine, which allows Congress to constitutionally assign cases involving "public rights" to non-Article III tribunals, the court determined that it is "settled" that internal revenue and taxation fall into the "public rights" category. The court concluded that "Congress undisputedly exercised that option when it initially established the Tax Court as an Executive Branch agency rather than an Article III tribunal" and was unpersuaded by the Kuretskis' argument that the 1969 Tax Reform Act converted the Tax Court into an Article III court.

Addressing Freytag v. Comm'r, 501 U.S. 868 (1991), in which the Supreme Court held that the Tax Court was a "Court of Law" that "exercises a portion of the judicial power of the United States," the D.C. Circuit emphasized that Freytag dealt with the scope of the Appointments Clause and that the Court had clarified that "the judicial power of the United States is not limited to the judicial power defined under Article III."

Finally, the D.C. Circuit rejected the Kuretskis' alternative argument that the Tax Court functions as part of the Legislative Branch. While the court agreed that the Tax Court could be characterized as an Article I legislative court, it held that the court was not part of the Legislative Branch and its judges did not exercise "legislative powers" under Article I. While, under Freytag, the Tax Court has some measure of independence from the Executive Branch and exercises "something other than executive power," the court concluded that the Tax Court exercised its authority as part of the Executive Power and that its judges remain Executive Branch officers subject to presidential removal.

For the full opinion, please see http://www.cadc.uscourts.gov/i...le/13-1090-1498618.pdf.

Panel: Srinivasan, Edwards, and Sentelle

Argument Date: November 26, 2013

Date of Issued Opinion: June 20, 2014

Docket Number: 13-1090

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel: Tuan N. Samahon, Carlton M. Smith, Frank Agostino, and John P.L. Miscione for appellants. Bethany B. Hauser, Teresan E. McLaughlin for appellee.

Author of Opinion: Srinivasan

Case Alert Circuit Supervisors: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/23/2014 10:22 AM     DC Circuit     Comments (0)  

June 17, 2014
  All Party Parliamentary Group v. Department of Defense -- D.C. Circuit
Headline: D.C. Circuit determines that the term "representatives" of foreign government entities under FOIA's Foreign Government Entity Exception means "agents" of foreign governments.

Area of Law: Freedom of Information Act

Issue Presented: Whether a member of the British House of Commons, an informal British parliamentary caucus, and an American lawyer representing both are "representatives" of a foreign government entity within the meaning of the Freedom of Information Act's Foreign Government Entity Exception.

Brief Summary:
Appellants, a member of the British parliament, an informal parliamentary caucus, and the American lawyer representing both, filed Freedom of Information Act (FOIA) requests with various U.S. government agencies seeking information about the United Kingdom's alleged involvement in extraordinary rendition. Several agencies within the intelligence community declined to release relevant documents, invoking FOIA's Foreign Government Entity Exception, which prohibits intelligence agencies from releasing records to foreign government entities or their "representatives." According to the agencies, requesters, as a member of a foreign government, a "subdivision of a foreign government entity," and their legal representative, were "representatives" of the British government within the meaning of the act. The requesters sued to compel disclosure, arguing that only "agents" of foreign governments qualify as "representatives" under the exemption and that they were not agents of the British government because they lacked authority to file FOIA requests on their government's behalf. The United States District Court for the District of Columbia dismissed the complaint, reasoning that "the term 'representative' is not synonymous with 'agent' for the purposes of [FOIA]" and concluding that all three requesters were British government "representatives" within the meaning of the Act.

The United States Court of Appeals for the District of Columbia Circuit reversed and remanded, adopting appellants' narrower interpretation of "representative" as "agent." The D.C. Circuit began by noting that a narrow definition would not expose government secrets to terrorists or otherwise compromise national security because of other FOIA exemptions preventing disclosure of classified records. The court found that defining "representative" as "agent" comported with both the traditional and common-sense understandings of the term and reasoned that Congress would have used an alternate word "had it wanted to avoid incorporating agency principles into the Foreign Government Entity Exception." Examining the structure and purpose of the exemption, the court concluded that the "representative" language was intended to prevent foreign governments from evading the exception by having their agents file a FOIA motion, not to create an independent class of disfavored FOIA requesters. Finally, the court rejected the agencies' argument that interpreting "representative" to mean "agent" would impose additional burdens on intelligence agencies by requiring a time-intensive inquiry into whether each individual FOIA requester qualifies as an agent of a foreign government entity. The court found this exercise no more burdensome than any other FOIA analysis. Because appellants lacked authority to file FOIA requests on behalf of the United Kingdom, they were not its agents and fell outside the FOIA exemption.

For the full opinion, please see http://www.cadc.uscourts.gov/i...e/13-5176-1497947.pdf.


Panel: Tatel, Griffith, and Pillard

Argument Date: May 7, 2014

Date of Issued Opinion: June 17, 2014

Docket Number: 13-5176

Decided: Reversed and remanded.

Author of Opinion: Tatel

Counsel: Dominic F. Perella, Audrey E. Moog, Jonathan L. Abram, and Mary H. Wimberly for appellants. Charles W. Scarborough, Stuart F. Delery, Ronald Machen, and Matthew Collette for appellees.

Case Alert Author: Albertine Guez

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/17/2014 03:24 PM     DC Circuit     Comments (0)  

June 13, 2014
  United States v. Richards - Fifth Circuit
Headline: Fifth Circuit Upholds Federal "Crush Video" Law Against Constitutional Challenge.

Area of Law: First Amendment, criminal law.

Issue Presented: Whether the federal statute prohibiting creation and distribution of "crush videos" (18 U.S.C. § 48) is unconstitutional under the First Amendment.

Brief Summary: Federal prosecutors charged the defendants with violating the federal "crush video" law, which prohibits the creation or distribution of certain pornographic films in which animals are killed or seriously harmed. The current version of the law was enacted after the U.S. Supreme Court struck down the prior version on First Amendment grounds several years ago. The defendants moved to dismiss the indictment on the grounds that the revised statute still violates the First Amendment. The U.S. District Court for the Southern District of Texas granted the defendants' motion, agreeing that the statute is unconstitutional. On appeal, the U.S. Court of Appeals for the Fifth Circuit concluded that the revised statute is constitutional. The court accordingly reversed and remanded for further proceedings.

Significance: The Fifth Circuit upholds the federal "crush video" law, a prior version of which had been held unconstitutional by the Supreme Court.

Extended Summary: In United States v. Stevens (2010), the U.S. Supreme Court held that a federal statute prohibiting depictions of animal cruelty violated the First Amendment's Free Speech Clause. Congress responded by amending the statute to reach a narrower range of conduct. The revised statute applies to videos that (1) depict conduct in which animals are intentionally killed or seriously injured and (2) are "obscene." 18 U.S.C. § 48.

Federal prosecutors charged Ashley Nicole Richards and Brent Justice with violating the new version of the law. The defendants moved to dismiss the indictment on the grounds that the revised statute is still unconstitutional on its face. The U.S. District Court for the Southern District of Texas granted the defendants' motion, agreeing that the statute violates the First Amendment.

On appeal, the U.S. Court of Appeals for the Fifth Circuit disagreed with the district court and concluded that the revised statute is constitutional. The Fifth Circuit observed that the new version is significantly narrower than its predecessor, most importantly in that it reaches only "obscene" depictions of harm to animals. "Obscene" speech, as defined in a long line of precedent, is constitutionally unprotected sexual material. Therefore, by definition, the statute by its terms reaches only unprotected speech. The defendants further contended that even if the statute prohibits only obscenity, the statute unfairly targets only a narrow category of obscenity based on the nature of its content (i.e., only those obscene depictions that involve injury to animals). The court rejected this argument, reasoning that particular categories of obscenity may be targeted based on their socially harmful secondary effects - here, cruelty to animals.

Accordingly, the Fifth Circuit reversed the district court and remanded for further proceedings.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub\13/13-20265-CR0.pdf.

Panel: Circuit Judges Wiener, Haynes, and Higginson

Argument Date: 3/11/2014

Date of Issued Opinion: 6/13/2014

Docket Number: No. 13-20265

Decided: Reversed and remanded

Counsel: John Michael Pellettieri, Department of Justice, for Plaintiff-Appellant United States; Joyce A. Raynor for Defendant-Appellee Richards; Marjorie A. Meyers, Federal Public Defender's Office, for Defendant-Appellee Justice.

Author of Opinion: Judge Higginson

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 06/13/2014 09:32 PM     5th Circuit     Comments (0)  

  Mendoza v. Perez -- D.C. Circuit
Headline: D.C. Circuit permits Americans herders to challenge Labor guidance allowing the hiring of foreign herders.

Area of Law: Administrative Law, Standing

Issue(s) Presented: Whether American herders have standing to challenge an employment guidance issued by the Department of Labor relaxing the requirements for hiring foreign herders, and whether the guidance, promulgated without notice and comment, violated the Administrative Procedure Act (APA).

Brief Summary:
The Immigration and Nationality Act creates a temporary visa program, the H-2A Visa Program, to facilitate hiring foreign workers when there are not enough qualified and available Americans to fill open jobs. In 2011, the Department of Labor, tasked with administering the program, updated the special procedures establishing minimum wages and working conditions that have to be offered to U.S. herders before employing foreign workers. The Department published two Training and Employment Guidance Letters (TEGLs) without notice and comment procedures. In October 2011, U.S. herders brought an action against the Department, claiming that the conditions established by the TEGLs forced them out of the industry by lowering wages and degrading working conditions. Plaintiffs, U.S. workers with years of experience as herders, alleged that the Department of Labor violated the APA by issuing the special procedures without notice and comment. Two groups representing employers in the herding industries intervened on the side of the government and filed a motion to dismiss for lack of jurisdiction. The District Court granted the motion to dismiss, finding that plaintiffs lacked Article III standing because they had not suffered a cognizable injury traceable to the disputed regulations and, alternatively, because they were not in the zone of interests protected by the Immigration and Nationality Act and thus lacked prudential standing. The plaintiffs appealed.

The United States Court of Appeals for the District of Columbia Circuit reversed. The court emphasized that the requirements for Article III standing to enforce procedural rights are different from those for enforcing substantive rights; while the plaintiffs must establish the agency action threatens their concrete interest in a personal way, once they have done so, standards are less stringent for demonstrating immediacy and redressability. Specifically, the court found that plaintiffs need not demonstrate that but for the procedural violation, the effect on their personal interests would have been different. Provided plaintiffs can link the agency action and the alleged injury, the court will assume the agency action would have been different had it been consummated in a procedurally valid manner.

Applying the competitor standing doctrine, the court determined that parties suffer an injury in fact when agencies lift restrictions on their competitors or otherwise allow increased competition. Since the special procedures contained in the TEGLs had the effect of loosening the general H-2A requirements, thus increasing the supply of labor and competition, their promulgation caused injury to the plaintiffs. Finally, the court determined that plaintiffs, American workers, had prudential standing because they fell squarely within the zone of interests protected by the Immigration and Nationality Act.

After finding that plaintiffs had standing, the court opted to rule on the merits given that parties had adequately briefed and argued the question. The court concluded that TEGLs are legislative rules and that promulgating them without following the notice and comment procedure was a violation of the Administrative Procedure Act. As such, the court found plaintiffs were entitled to an entry of summary judgment in their favor and remanded for proceedings consistent with its opinion.

For the full opinion, please see http://www.cadc.uscourts.gov/i.../13-5118-1497417.pdf.

Panel: Tatel, Brown, and Millett

Argument Date: February 25, 2014

Date of Issued Opinion: June 13, 2014

Docket Number: 13-5118

Decided: Reversed

Case Alert Author: Albertine Guez

Counsel: Julie A. Murray, Michael T. Kirkpatrick, and Edward J. Tuddenham for Appellants. Craig A. Defoe, Stuart F. Delery, and David J. Kline for Appellee.

Author of Opinion: Brown

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/13/2014 04:10 PM     DC Circuit     Comments (0)  

June 5, 2014
  Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers -- Sixth Circuit
Headline: Sixth Circuit denies relief to challengers of mining permit, finding that the U.S. Army Corps of Engineers' limited-in-scope environmental analysis and approval of a mitigation plan complied with the Clean Water Act and National Environmental Policy Act.

Areas of Law: Environmental Law; Coal Mining; Clean Water Act; Surface Mining Control and Reclamation Act of 1977; National Environmental Policy Act

Issue Presented: Under the Clean Water Act and the National Environmental Policy Act, what level of environmental analysis is required when issuing a permit that relates to a small but necessary part of a mining operation?

Brief Summary: Plaintiff environmental groups sued after the U.S. Army Corps of Engineers granted a mining company a permit to discharge dredged or fill materials into navigable waters. Plaintiffs alleged that the Army Corps violated federal mandates by issuing a permit that would negatively affect water quality, by failing to consider adverse effects on human health and welfare, and by failing to issue an environmental-impact statement. The district court granted summary judgment to the Army Corps, dismissing the lawsuit in its entirety. The Sixth Circuit affirmed, holding that the Army Corps did not abuse its discretion by (1) limiting the scope of its environmental analysis to only health effects closely related to the discharge of dredged or fill material into navigable waters and (2) approving a mitigation plan that was rationally designed to maintain the water integrity near the mine.

Extended Summary: The Kentucky Division of Mine Permits granted a mining company a permit for a surface coal-mining operation in Kentucky. In 2007, the company applied to the Army Corps for a secondary §404 permit related only to the filling of jurisdictional waters. After the company addressed various concerns and implemented strategies outlined by the Environmental Protection Agency, the Army Corps issued an environmental assessment finding "no significant impact" and issued the §404 permit in 2012. Three months later, plaintiff environmental groups sued the Army Corps alleging Clean Water Act and National Environmental Policy Act violations. The district court granted summary judgment in favor of the Army Corps, finding that it issued the §404 permit in compliance with federal mandates. Plaintiffs appealed to the Sixth Circuit.

The Surface Mining Control and Reclamation Act of 1977 grants states the exclusive right to regulate surface coal-mining and reclamation operations on nonfederal lands. That right is subject to limited federal oversight to ensure compliance with federal standards. Under the Act, the State of Kentucky, through its Department for Natural Resources' Division of Mine Permits, has exclusive authority to grant surface mining permits within its state. However, because surface mining operations may affect navigable waters of the United States, the federal Clean Water Act requires additional permits to preserve the quality of waters and wetlands. At issue in this case was the §404 permit issued by the Army Corps under the Clean Water Act.

Under §404 of the Clean Water Act, the Army Corps' authority is limited to the narrow issue of the filling of navigable waters within the United States. The Army Corps must review several factors, including the health and welfare of individuals likely to be affected by mining discharge into jurisdictional waters. The Army Corps must also comply with the National Environmental Policy Act by taking a "hard look" at the potential environmental consequences of its actions and by preparing an environmental-impact statement or environmental assessment, depending on the level of its actions.

The Sixth Circuit found that its review of compliance under the National Environmental Policy Act was limited to whether the agency's decision was arbitrary and capricious. As such, the Sixth Circuit was limited to review whether the Army Corps had adequately studied the issues surrounding the §404 permit and had taken a "hard look" at the environmental consequences of its decision. Because the Army Corps' authority is limited to the filling of jurisdictional waters, it did not have authority to review the entire mining operation, as plaintiffs suggested.

Moreover, the Sixth Circuit found that the Army Corps and the Environmental Protection Agency had adequately addressed health concerns, even though those concerns were the primary responsibility of the Kentucky Division of Mine Permits. The Sixth Circuit held that the Army Corps performed an environmental assessment reasonably limited in scope to the effects closely related to the discharge of dredged or fill material into navigable waters and approved a mitigation plan that was rationally designed to maintain the water integrity near the mine's location. Therefore, the Army Corps did not act arbitrarily and capriciously in its decision to issue the §404 permit.

Panel: Judges Keith, Siler, and Rogers

Date of Issued Opinion: March 7, 2014

Docket Number: 13-6153

Decided: Petition for Review of a Motion for Summary Judgment granted in favor of the U.S. Army Corps of Engineers.

Counsel: ARGUED: Neil Gormley, EARTHJUSTICE, Washington, D.C., for Appellants. J. David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. Robert G. McLusky, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellee Lecco. ON BRIEF: Neil Gormley, Jennifer C. Chavez, EARTHJUSTICE, Washington, D.C., Joseph M. Lovett, J. Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, Mary Cromer, APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky, for Appellants. J. David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. Robert G. McLusky, JACKSON KELLY PLLC, Charleston, West Virginia, Kevin M. McGuire, JACKSON KELLY PLLC, Lexington, Kentucky, for Appellee Leeco.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0046p-06.pdf

Case Alert Author: Minyon Bolton

Author of Opinion: Judge Rogers

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 06/05/2014 01:46 PM     6th Circuit     Comments (0)  

  Laster v. City of Kalamazoo -- Sixth Circuit
Headline: The Sixth Circuit highlights the distinction between the "materially adverse action" element of a Title VII retaliation claim and the "adverse employment action" element of a Title VII race-discrimination claim.

Area of Law: Constitutional Law, Employment Law; Title VII (Race Discrimination), Elliot-Larsen Civil Rights Act

Issue Presented: Did the district court improperly dismiss plaintiff's Title VII retaliation claim by requiring plaintiff to prove that he suffered an "adverse employment action" as part of his prima facie case?

Brief Summary: The plaintiff claimed that after he had filed two complaints with the EEOC, his employer retaliated against him in discriminatory ways, ultimately forcing him to resign. Plaintiff sued, claiming race discrimination and retaliation under Title VII and the First Amendment. The Title VII race-discrimination and First Amendment claims were dismissed, but the Sixth Circuit held that the district court erred in dismissing plaintiff's Title VII retaliation claim. The court contrasted the application of the McDonnell-Douglas test to retaliation claims with its application to Title VII race-discrimination claims. A retaliation claim requires a less-onerous standard of "materially adverse action" than a race-discrimination claim, which requires proof of an "adverse employment action." Applying this standard, the court found that the plaintiff could establish a prima facie case of Title VII retaliation even though he could not succeed in his claim for Title VII race discrimination or in his First Amendment claim.

Significance: Even though a plaintiff has failed to establish a prima facie case of race discrimination under Title VII, the plaintiff may establish a prima facie case of Title VII retaliation because the elements for these claims are different.

Extended Summary: Plaintiff, an African-American public-safety officer, filed two Equal Employment Opportunity Commission complaints alleging race discrimination and failure to obtain relief through his employer's internal grievance system. Plaintiff alleged that, following these complaints, he was subjected to retaliatory actions that forced him to resign. Plaintiff sued, claiming Title VII race discrimination and retaliation, and a violation of his First Amendment rights.

The Title VII race-discrimination and First Amendment claims were dismissed in both the district court and the Sixth Circuit. But the Sixth Circuit held that the district court erred in dismissing plaintiff's Title VII retaliation claim. Because the plaintiff sought to establish his Title VII retaliation claim through circumstantial evidence, the court applied the Supreme Court's McDonnell-Douglas burden-shifting analysis. The court noted that it applies McDonnell-Douglas differently to Title VII race-discrimination claims than to retaliation claims. For a discrimination claim, a plaintiff's prima facie case requires proof of an "adverse employment action," which is defined as a "materially adverse change in the terms or conditions" of employment. For a retaliation claim, however, the plaintiff need only show a "materially adverse action," which means that the employer's action might have "dissuaded a reasonable worker from making or supporting a charge of discrimination."

In light of this distinction, the court found that plaintiff's claim that he faced heightened scrutiny, received frequent reprimands for breaking selectively enforced policies, and was disciplined more harshly than similarly situated peers might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. Thus, the evidence could establish a prima facie case of Title VII retaliation even though it could not support his claim for Title VII race discrimination or his First Amendment claim.

Panel: Batchelder, Chief Judge; Siler and Clay, Circuit Judges.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...14a0048p-06.pdf


Date of Issued Opinion: March 13, 2014

Docket Number: 13-1640

Decided: Affirmed as to dismissal of Title VII race-discrimination claim; reversed as to dismissal of Title VII retaliation claim and remanded for further proceedings.

Counsel: ON BRIEF: Richard O. Cherry, KALAMAZOO CITY ATTORNEY'S OFFICE, Kalamazoo, Michigan, for Appellee. Mark Laster, Kalamazoo, Michigan, pro se.

Author of Opinion: Circuit Judge Clay; separate concurring opinion by Circuit Judge Batchelder.

Case Alert Author: Theodora Eisenhut

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 06/05/2014 01:11 PM     6th Circuit     Comments (0)  

  United States v. Romero-Caspeta - Sixth Circuit
Headline: Under 8 U.S.C. § 1326(a), once an alien has been deported from the United States, it is a felony to reenter the United States at any time without express consent of the Attorney General. Even after the five-year prohibition to apply for reentry lapses, the alien still must obtain consent to lawfully enter the United States.

Area of Law: Criminal law; Immigration law

Issue Presented: Is it a defense to the crime of unlawful reentry to claim that a previously removed alien reentered the United States more than five years after his removal and thus no longer needed express consent of the Attorney General before entering the United States?

Brief Summary: The defendant was charged with the crime of unlawful reentry under 8 U.S.C. § 1326(a). Both the district court and the Sixth Circuit rejected defendant's argument that the requirement that an alien obtain express consent from the Attorney General before reentering the country no longer applies after five years. Considering this issue of first impression, the Sixth Circuit construed 8 U.S.C. § 1182(a)(9)(A)(i), which allows a previously removed alien to apply for a visa five years after removal, to have no effect on §1326.

Significance: A previously removed alien must obtain express consent from the Attorney General before reentering the United States, regardless of the length of time that has passed since removal.

Extended Summary: In 1991, the defendant, a Mexican citizen, was removed from the United States after attempting to enter using another person's border pass. The defendant was deported back to Mexico. The order of removal prohibited the defendant from reentering the United States for a period of five years without prior express consent of the Attorney General. Along with the order of removal, the defendant was given a notice statement warning that, under 8 U.S.C. § 1326, it is a felony for any previously removed alien "to enter, attempt to enter, or be found in the United States without the Attorney General's express consent."

In 2012, the defendant committed a traffic violation in Detroit, Michigan, and was detained by U.S. Immigration and Customs Enforcement agents. Defendant was charged with unlawful reentry under 8 U.S.C. § 1326(a). This required the government to prove that the defendant: (1) was an alien; (2) had been removed from the United States; (3) and re-entered the United States (4) without the consent of the Attorney General.

Defendant moved for acquittal arguing that, once five years had elapsed since his removal, he was no longer required to obtain the advance consent of the Attorney General before reentering the United States. According to the defendant, §1326(a) should be read in conjunction with 8 U.S.C. § 1182(a)(9)(A)(i), which permits a removed alien to obtain a visa after five years. Defendant argued that §1182 implicitly modifies §1326 to end the alien's obligation to obtain the Attorney General's express consent to reenter the United States after five years. The district court disagreed and denied defendant's motion of acquittal.

On appeal, the Sixth Circuit examined previous decisions of the Fourth and Fifth Circuits addressing the same issue, and found their reasoning persuasive. Those decisions clarified that §1182 does not implicitly modify §1326. Under §1182(a)(9)(A)(i), a previously removed alien is categorically inadmissible for the first five years after removal. Under §1182(a)(9)(A)(iii), the alien may seek readmission during that time with the express consent of the Attorney General. But the Sixth Circuit explained that §1182 does not give the removed alien "carte blanche to reenter the United States at his leisure" without the express consent of the Attorney General after the five-year prohibition period. It held, therefore, that §1182 has no effect on §1326, which "continues to articulate all the elements necessary to prove a violation." This includes the requirement that a previously removed alien must obtain the Attorney General's advance consent before reentry, even after the five-year prohibition period in §1182(a)(9)(A)(i) expires.

The Sixth Circuit determined that, in order to have had a defense to prosecution under §1326(a), the defendant was required to obtain express consent of the Attorney General before entering the United States. Because defendant admitted he had not done so, he had no defense as a matter of law.


Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0042p-06.pdf

Panel: Judges Bathelder, Griffin, Bell

Date of Issued Opinion: February 28, 2014

Docket Number: 12-2690

Decided: Affirmed.

Case Alert Author: Chelsey Morgenstern

Counsel: George B. Washington, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, for Appellee.

Author of Opinion: District Judge Bell

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 06/05/2014 12:57 PM     6th Circuit     Comments (0)  

June 4, 2014
  United States v. BP Exploration & Production, Inc. - Fifth Circuit
Headline: Fifth Circuit Affirms Liability for Civil Penalties in Deepwater Horizon Spill.

Area of Law: Clean Water Act.

Issue Presented: Whether the owners of the failed well involved in the Deepwater Horizon oil spill are responsible for civil penalties under the Clean Water Act for "discharg[ing]" pollutants where the pollutants first travelled through another party's structure before entering the environment.

Brief Summary: The United States sought civil penalties under the Clean Water Act against Anadarko Petroleum Corp. and BP Exploration & Production, Inc., the owners of the failed well involved in the 2010 Deepwater Horizon oil spill. The well owners disputed liability on the ground that the oil did not enter the environment directly from the well but rather flowed first through a structure owned by another party, Transocean. The U.S. District Court for the Eastern District of Louisiana entered summary judgment in the government's favor on the issue of liability for discharging pollutants. The U.S. Court of Appeals rejected the well owners' arguments and therefore affirmed.

Extended Summary: Anadarko Petroleum and BP owned the Macondo Well, which had been drilled by the Deepwater Horizon, a mobile offshore drilling vessel owned and operated by Transocean. In April 2010, the cement that sealed the Macondo Well failed, the blowout preventer sitting atop the well also failed, and oil flowed uncontrolled through a riser connecting the well to the Deepwater Horizon vessel. The vessel then caught fire and capsized, and oil spewed through the broken riser into the Gulf of Mexico for months.

The United States brought a civil enforcement action in the U.S. District Court for the Eastern District of Louisiana against various entities involved in the spill. As relevant here, the government sought civil penalties under the Clean Water Act against Anadarko and BP. The Act imposes liability on the owner of any "facility from which oil or a hazardous substance is discharged" into navigable waters. The district court granted summary judgment in the government's favor on the issue of liability. Anadarko and BP appealed.

On appeal, the well owners argued that they had not violated the statute because oil entered the environment through the riser, which was part of Transocean's vessel, rather than escaping into the water directly from their well. The Fifth Circuit rejected that argument, reasoning that a "discharge" occurs where controlled confinement of a substance is lost. Here, there was no disputing that such confinement was lost in the well, even though the uncontrolled oil then flowed through Transocean's riser before entering the water. The Fifth Circuit deemed it irrelevant to the question of liability that Transocean might have been culpable as well, though that factor could influence the size of the penalty ultimately imposed. The Fifth Circuit accordingly affirmed.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/12/12-30883-CV0.pdf.

Panel: Circuit Judges King, Benavides, and Dennis

Argument Date: 12/4/2013

Date of Issued Opinion: 6/4/2014

Docket Number: No. 12-30883

Decided: Affirmed

Counsel: Maggie B. Smith, U.S. Department of Justice, for Plaintiff-Appellee United States; David Bruce Salmons, Bingham McCutchen LLP, for Defendant-Appellant Anadarko Petroleum Corp.; Richard Cartier Godfrey, Kirkland & Ellis LLP, for Defendant-Appellant BP Exploration & Production, Inc.

Author of Opinion: Judge Benavides

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 06/04/2014 09:29 PM     5th Circuit     Comments (0)  

May 23, 2014
  Cause of Action v. National Archives and Records Administration
Headline: Legislative branch does not forfeit FOIA exemption by transferring records to the National Archives.

Area of Law: Freedom of Information Act

Issue Presented: Whether a legislative commission's records, exempt from FOIA while the commission produced, retained, and relied upon those documents, became subject to FOIA when the commission turned its records over to the National Archives, an agency within the executive branch.

Brief Summary: Like all other entities within the legislative branch, the Financial Crisis Inquiry Commission, a legislative branch agency charged with reporting and investigating the causes of the economic crisis, is not subject to the Freedom of Information Act. 5 U.S.C. § 552(a)(4)(B). Upon disbanding in 2011, the Commission transferred its records to the National Archives, an agency within the executive branch that is covered by FOIA. Cause of Action submitted a FOIA request to the Archives seeking Commission records. The Archives denied the request on the basis of § 552(a)(4)(B), and Cause of Action filed suit. The United States District Court for the District of Columbia determined that the Commission's records were not agency records subject to FOIA and granted the Archives' motion to dismiss. Cause of Action appealed.

The United States Court of Appeals for the District of Columbia Circuit affirmed. The court noted that its prior decisions had assumed that transfer of non-covered documents to the Archives did not convert them to records subject to FOIA, and it observed that regulations of the Archives likewise presumed that FOIA covered only executive branch records. The court declined to use its four-factor Burka test to determine whether the Archives had sufficient control over the documents, finding the test "an uncertain guide" with "particularly problematic" application where documents were simply deposited with and catalogued by the Archives. The court noted that in the context of the Archives, application of the four-factor test did not further FOIA's objective of revealing to the public how federal agencies operate. Because the main function of the Archives is merely preservation, and because the Archives does not use the documents in any operational way, the court found itself confident that Congress intended the FOIA exemption to follow the records.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...e/13-5127-1494295.pdf.


Panel: Henderson, Kavanaugh, and Randolph.

Argument Date: February 19, 2014

Date of Issued Opinion: May 23, 2014

Docket Number: 13-5127

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel: Daniel Epstein, Marie A. Connelly, Patrick J. Massari, and Reed D. Rubinstein for Appellant. Christine N. Kohl, Stuart F. Delery, Ronald C. Machen Jr., Leonard Schaitman, and Edward Himmelfarb for Appellee.

Author of Opinion: Randolph

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/23/2014 02:36 PM     DC Circuit     Comments (0)  

May 14, 2014
  Estate of John R.H. Thouron v. USA - Third Circuit
Headline: Reliance on tax expert may establish reasonable cause for failure to pay

Area of Law: Tax

Issues Presented: Whether the reliance on a tax expert can establish reasonable cause for late payment of taxes.

Brief Summary: The Estate of Thouron failed to pay its taxes on time because of reliance on a tax expert. The Court decided that reliance on a tax expert for matters that are not ministerial tasks may be enough to establish reasonable cause for the late payment. The taxpayer must show that he relied on the advice of the tax expert and then either inability to pay on the date or that undue hardship would result if the taxes were paid on the date.

Significance (if any):

Extended Summary: This case centers on whether reliance on a tax expert can establish reasonable cause for failure to pay taxes. The Estate of Thouron hired an executor who retained an experienced tax attorney to provide advice for tax matters. On the date the taxes were due the Estate filed for an extension of time and paid some money but less than it would ultimately owe. The balance was not paid because of reliance on the tax expert. When the Estate filed its return it owed a penalty of over $900,000 because the reliance on the tax expert resulted in a failure to elect to defer taxes and thus the penalty. The Court looked to whether the Estate should receive a refund of the penalty because the failure to pay was not willful neglect but resulted from reasonable cause.
Tax penalties apply unless the tax payer can show that the failure is due to reasonable cause and not willful neglect. To show reasonable cause, the tax payer must prove that he exercised ordinary business care and was nevertheless unable to pay the tax or would have suffered undue hardship if it was paid on that date. The Court determined that the District Court applied the Supreme Court's decision in Boyle too strictly. While both this case and Boyle are late- filing cases the Court believes the reasons for the late filing matter. The Court determined that Boyle identified three categories of late filing cases. The first is reliance on an agent for filing or paying. The second is where the tax payer files late but before the time the agent erroneously told him was available. The third is where an attorney or accountant advises the taxpayer on a matter of law.
The Court determined that the issue in this case is the second type while the issue in Boyle was the first. The Supreme Court declined to decide the second and third categories and so it was wrong for the District Court to apply Boyle so strictly. The Court held that a tax payer's reliance on the advice of an expert may be reasonable cause for failure to pay by the deadline. The taxpayer must then show either an inability to pay or undue hardship from paying at the deadline. The Court found that there is dispute of material fact as to whether the reliance occurred here.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/131603p.pdf

Panel (if known): Ambro, Hardiman, and Greenaway, Jr., Circuit Judges

Argument Date: January 14, 2014

Argument Location:

Date of Issued Opinion: May 13, 2014

Docket Number: No. 13-1603

Decided: Vacated and Remanded

Case Alert Author: Cheri Snook

Counsel: Joel L. Frank, Esq., William H. Lamb. Esq., Scot R. Withers, Esq., for appellant; Zane D. Memeger, Kathryn Keneally, Jonathan S. Cohen, Esq., Jennifer M. Rubin, Esq., William B. Russell, Jr., Esq., for appellee

Author of Opinion: Judge Ambro

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 05/14/2014 12:27 PM     3rd Circuit     Comments (0)  

May 12, 2014
  In re: Fosamax Products - Third Circuit
Headline: Third Circuit concludes that federal law pre-empts state design defect and strict liability claims

Area of Law: Federal Preemption

Issue(s) Presented: Whether state law claims against Generic Defendants in a products liability case were pre-empted by federal law?

Brief Summary:
This case involves product liability claims by individuals who allegedly suffered bone fractures because they took Fosamax® - a drug used to treat or prevent osteoporosis and Paget's Disease - or the generic equivalent of that drug, alendronate sodium. Plaintiffs sued Merck Sharp & Dohme, Corp. ("Merck"), the manufacturer of Fosamax, as well as several entities that manufacture the generic equivalent (the "Generic Defendants"). The district court granted judgment on the pleadings in favor of the Generic Defendants because it determined that the state law claims against them were pre-empted by federal law. The district court certified that order as final under Federal Rule of Civil Procedure 54(b), and a number of the plaintiffs then appealed. The Third Circuit affirmed.

Significance (if any):

Extended Summary (if applicable):
This case involves product liability claims by individuals who allegedly suffered bone fractures because they took Fosamax - a drug used to treat or prevent osteoporosis and Paget's Disease - or the generic equivalent of that drug, alendronate sodium. Those plaintiffs sued Merck Sharp & Dohme, Corp. ("Merck"), the manufacturer of Fosamax, as well as several entities that manufacture the generic equivalent (the "Generic Defendants"). The district court granted judgment on the pleadings in favor of the Generic Defendants because it determined that the state law claims against them were pre-empted by federal law. The district court certified that order as final under and a number of the plaintiffs then appealed. The Third Circuit affirmed.

Plaintiffs brought state law product liability claims under theories of design defect, failure-to-warn, negligence, breach of express warranty, breach of implied warranty, fraudulent misrepresentation, and negligent misrepresentation. This action was centralized by the U.S. Judicial Panel on Multidistrict Litigation in the U.S. District Court for the District of New Jersey. The Generic Defendants moved for judgment on the pleadings, arguing that the plaintiffs' claims were pre-empted by federal law under the Supremacy Clause of the United States Constitution. The district court concluded that the claims against the Generic Defendants were pre-empted because, just as those defendants could not lawfully change drug labeling for alendronate sodium, they also could not lawfully change the active ingredient design of the drug either. The district court then dismissed all of the Generic Defendants from the case.

Plaintiffs argued that their negligence-based design-defect claims were grounded on the theory that the Generic Defendants were negligent "because of their failure to properly analyze the drug to discover the product's defects and for negligently continuing to sell the drug after they were, or should have been aware, that it was defectively designed. The Generic Defendants argued that plaintiffs waived this argument by raising it for the first time in their reply brief. The Third Circuit agreed. The Court has consistently held that an argument is waived unless it is raised in the party's opening brief. Thus, plaintiffs' reply brief arguments, which were outside of anything addressed in the opening brief, were waived.

The Supremacy Clause of the U.S. Constitution provides that federal law shall be the supreme law of the land. There are three circumstances for when a state law is pre-empted by federal law: (1) when a federal statute includes "an express provision for pre-emption;" (2) "[w]hen Congress intends federal law to 'occupy the field'" in an area of law; or (3) when a state and federal statute are in conflict. Two recent Supreme Court opinions hold that certain state law claims against manufacturers of generic drugs directly conflict with federal law and are pre-empted. The Court explained that ". . . under the FDCA a generic [drug manufacturer] may not unilaterally change its labeling or change its design or formulation, and cannot be required to exit the market or accept state tort liability." Drager, 741 F.3d at 476. Thus, state tort law is pre-empted by the FDCA. Because there was nothing the Generic Defendants could have done to change the labeling or the drug, plaintiffs' strict liability design-defect claims were pre-empted. The Third Circuit, thus, affirmed the district court's decision. A copy of the Court's opinion can be found here: http://www2.ca3.uscourts.gov/opinarch/122250p.pdf

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

Argument (if known): December 18, 2013

Date of Issued Opinion: April 30, 2014

Docket Number: 12-2250

Decided: April 30, 2014

Case Alert Author: Alexandra Perry

Counsel (if known):
Brandon L. Bogle, Esq. [ARGUED]
Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor
316 S. Baylen Street, Suite 600
Pensacola, FL 32502

Scott D. Levensten, Esq.
1420 Walnut Street, Suite 801
Philadelphia, PA 19102
Counsel for Appellants

Karen A. Confoy, Esq.
Fox Rothschild
997 Lenox Dr.
Princeton Pike Corporate Center, Bldg. 3
Lawrenceville, NJ 08648
Counsel for Merck Sharp & Dohme Corp.

John K. Crisham, Esq.
Kirkland & Ellis
655 15th St., N.W., Suite 1200
Washington, DC 20005

Glenn S. Kerner, Esq.
Katherine D. Seib, Esq.
Goodwin Procter
620 Eighth Avenue
The New York Times Bldg.
New York, NY 10018

Jay P. Lefkowitz, Esq. [ARGUED]
Kirkland & Ellis
601 Lexington Ave.
New York, NY 10022

George E. McDavid, Esq.
Reed Smith
136 Main Street, Suite 250
Princeton, NJ 08540
Counsel for Barr Pharmaceuticals Inc., RP,
Barr Laboratories, and Teva Pharmaceuticals USA,
Inc.

Terry M. Henry, Esq.
Blank Rome
130 N. 18th Street
One Logan Square
Philadelphia, PA 19103
Counsel for Watson Laboratory and
Watson Pharmaceuticals Inc.

Kelly E. Jones, Esq.
Steven A. Stadtmauer, Esq.
Harris Beach
One Gateway Center , Suite 2500
Newark, NJ 07102

Harvey L. Kaplan, Esq.
Shook, Bardy, Bacon
2555 Grant Bldg.
Kansas City, MO 64108
Counsel for Mylan Inc. and
Mylan Pharmaceuticals Inc.

Charles A. Fitzpatrick, III, Esq.
Arthur B. Keppel, Esq.
Rawle & Henderson

1339 Chestnut Street, The Widener Bldg.
One South Penn Square, 16th Floor
Philadelphia, PA 19107
Counsel for Apotex Corp.

Jeffrey A. Cohen, Esq.
Flaster Greenberg
1810 Chapel Ave. West
Cherry Hill, NJ 08002

Sandra J. Wunderlich, Esq.
Stinson Leonard Street
7700 Forsyth Blvd., Suite 1100
St. Louis, MO 63105
Counsel for Sun Pharma Global and
Sun Pharmaceutical Industries Inc.

Terry M. Henry, Esq.
Blank Rome
130 N. 18th St.
One Logan Square
Philadelphia, PA 19103

Author of Opinion: Jordan, Circuit Judge

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 05/12/2014 01:09 PM     3rd Circuit     Comments (0)  

  U.S. v. Abdur Tai - Third Circuit
Headline: Criminal Conviction Upheld in Fraud Case Involving Fen-Phen Settlement

Area of Law: Criminal Law

Issue(s) Presented: Whether the district court committed plain error by implicitly shifting the burden of proof in its wilful blindness jury instruction and applying upward adjustments under the advisory Sentencing Guidelines?

Brief Summary: Defendant Tai appealed his conviction and sentence for mail and wire fraud in connection with claims for payment from the Fen-Phen Settlement Trust. Tai argued that the district court committed plain error by implicitly shifting the burden of proof in its "willful blindness" jury instruction and applying upward adjustments under the advisory Sentencing Guidelines for abuse of a position of trust, use of a special skill, and aggravated role. The Third Circuit concluded that the district court's jury instruction and upward adjustments were not erroneous, but remanded the case so the district court could determine whether Tai supervised a criminally culpable subordinate, which is necessary to award an aggravated role enhancement.

Significance (if any):

Extended Summary (if applicable):
Defendant Tai appealed his conviction and sentence for mail and wire fraud in connection with claims for payment from the Fen-Phen Settlement Trust. Tai argued that the district court committed plain error by implicitly shifting the burden of proof in its "willful blindness" jury instruction and applying upward adjustments under the advisory Sentencing Guidelines for abuse of a position of trust, use of a special skill, and aggravated role. The Third Circuit concluded that the district court's jury instruction and upward adjustments were not in error, but remanded the case so the district court could determine whether Tai supervised a criminally culpable subordinate, which is necessary to award an aggravated role enhancement.

The Fen-Phen settlement trust was established due to a class-action lawsuit alleging that the diet pill Fen-Phen caused heart disease. To obtain payment from the trust, people affected by this drug had to obtain a signed affidavit from a physician. The trust relied on the integrity of physicians submitting these affidavits on behalf of claimants. In 2002, the district court determined that 100% of claims would be audited. Tai, a board-certified cardiologist, was retained by many attorneys representing claimants to prepare reports. Tai estimated that he was owed over $2 million for his reports - based on the amount of reports he wrote and a bonus fee for each successful claim. Tai admitted to having his assistant review many of the echocardiograms because he did not have time for them all. He also admitted to reporting different findings than those of technicians' reports in about 10% of cases. Tai was charged with wire and mail fraud, and sentenced to 72 months' imprisonment, fines, and three years' supervised release.

None of the issues Tai appealed were preserved for review. Thus, plain error review applied. For reversible plain error to exist, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) which seriously affects the fairness, integrity, or public reputation of judicial proceedings. The Court found that the district court's willful blindness instruction did not exhibit clear error. These instructions told the jury when willful blindness does or does not exist, but did not imply in any way that Tai must present evidence concerning his own beliefs or knowledge. Thus, there was no implicit or explicit shifting of the burden of proof to Tai. The district court also told the jury that it could not find knowledge based on a willful blindness theory unless the Government proved Tai's knowledge beyond a reasonable doubt, and in fact the jury was expressly told at the beginning of the instructions that Tai never had to prove anything, and that the burden always remained on the government. This was more than sufficient to inform the jury that Tai bore no burden to prove he was not wilfully blind.

Tai next argued that the district court plainly erred by imposing a two-level increase under U.S.S.G § 3B1.3 for abuse of a position of trust and use of a special skill. Section 3B1.3 allows an increase of two offense levels "f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense." Again, the Third Circuit reviewed the district court's decision for plain error. The Court found that Tai's credentials, and the deference he was accorded as a result of them, placed him in a position that facilitated his criminal conduct. His signature gave claimants the opportunity to receive, collectively, hundreds of millions of dollars in compensation, yielding more than $2 million in potential payments to him. The trust's auditing ability did not limit any doctor's authority, and only looked to whether a reasonable physician could come to such conclusion. Also, Tai's skill and credentials were the means by which he could participate in the claims process. Without them, he would not have been permitted to submit reports to support claims and collect a fee. Thus, the district court did not commit plain error in concluding that Tai abused a position of trust and use of a special skill.

The Third Circuit affirmed the judgment of conviction but vacated and remanded the judgment of sentence to address the applicability of the role enhancement. More fact-finding was required by the district court to determine whether the alleged participants were criminally liable, which would allow for application of the twofold sentencing enhancement. A copy of the Third Circuit's decision can be found here:
http://www2.ca3.uscourts.gov/opinarch/131998p.pdf

Panel (if known): Fuentes and Schwartz, Circuit Judges; Rosenthal, District Judge

Argument (if known):

Date of Issued Opinion: April 30, 2014

Docket Number: 13-1998

Decided: April 30, 2014

Case Alert Author: Alexandra Perry

Counsel (if known):
Paul G. Shapiro, Esq. [ARGUED]
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee

Peter Goldberger, Esq. [ARGUED]
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant

Author of Opinion: Rendell, Circuit Judge

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 05/12/2014 01:05 PM     3rd Circuit     Comments (0)  

May 9, 2014
  ACLU v. U.S. Department of Justice
Headline: The D.C. Circuit says privacy interests trump ACLU's interest in obtaining warrantless cell phone tracking data for individuals who were indicted, but not ultimately convicted.

Area of Law: Freedom of Information Act

Issue Presented: Whether individuals' privacy interests in controlling information concerning criminal charges for which they were not convicted outweigh the public interest in disclosure.

Brief Summary: After learning that federal law enforcement agencies were obtaining data from cell phone companies without a warrant and using that information to track the phones' whereabouts, the American Civil Liberties Union (ACLU) filed FOIA requests with the Drug Enforcement Administration and the Executive Office of the United States Attorneys. It sought records related to the case name, docket number, and court of criminal prosecutions of individuals who were tracked using cell phone data obtained without a warrant based on probable cause. In order to compel production of these records, the ACLU filed suit against the Department of Justice. The Department of Justice identified 229 prosecutions responsive to the FOIA request but refused to turn the list of cases over, claiming that it fell within FOIA Exemption 7(C), which allows an agency to withhold information compiled for law enforcement purposes if the disclosure of such information could reasonably be expected to constitute an unwarranted invasion of personal privacy. In an earlier disposition of the case, the United States District Court for the District of Columbia ordered the agency to disclose the records of prosecutions where the defendant had been convicted or pled guilty but found that the privacy interests of those not convicted was substantially higher than those convicted and outweighed the public interest in disclosure. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed with regard to the records of those convicted but remanded the case regarding the records of those not convicted, finding the record below unclear as to whether any cases in fact fell within that category.

Following remand, the parties identified six on-point cases, four of which were resolved by dismissal and two of which ended in acquittal. The district court again granted the Department of Justice's motion for summary judgment, and the ACLU again appealed. The D.C. Circuit affirmed. The court acknowledged that privacy interests in preventing disclosure were less compelling here, where the individuals had already been indicted and their alleged participation was a matter of public record, than they would be if individuals had merely been subject to investigation. However, the fact of public prosecution made the privacy interests "fade, not disappear altogether." The court relied on both a person's presumption of innocence and a person's right to be left alone in finding that the scales tipped in favor of nondisclosure. The court noted that the special interest in allowing people charged but not convicted with crimes to go on with their lives is reflected in numerous state laws limiting disclosure of nonconviction data. Given its conceptualization of the individual privacy interest, the court had "little hesitation" in determining that it outweighed the public interest in disclosure.
Judge Tatel wrote separately in concurrence with his majority opinion, explaining that the prior release of information related to the 214 cases of convicted individuals substantially reduced the value of the remaining information to the public, further tipping the balance toward withholding the records.
Judge Brown dissented because she believed there was only a minimal privacy interest compromised by the disclosure of information readily available to the public. She found that the public had a strong interest in obtaining information that would allow it to decide for itself whether the government action was proper and that this interest outweighed any privacy interest involved.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/internet/opinions.nsf/C093507F31A9E09485257CD3004EC615/$file/13-5064-1492222.pdf.

Panel: Tatel, Brown, and Kavanaugh

Argument Date: February 20, 2014

Date of Issued Opinion: May 9, 2014

Docket Number: 13-5064

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel: Arthur B. Spitzer, Catherine Crump, and David L. Sobel for appellants. John S. Koppel, Stuart F. Delery, Ronald C. Machen Jr., and Leonard Schaitman for appellees.

Author of Opinion: Tatel

Concurrence: Tatel

Dissent: Brown

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/09/2014 04:40 PM     DC Circuit     Comments (0)  

May 1, 2014
  Rouse v. Wachovia Mort., FSB
Headline: District court order reversed and remanded for lack of diversity jurisdiction, holding that under 28 U.S.C. § 1348 a national bank is only a citizen of the state in which its main office is located.

Area of Law: Federal Civil Procedure

Issue Presented: Whether, under 28 U.S.C. § 1348, a national bank is a citizen of both the state in which its principal place of business is located and the state where its main office is located as designated in the bank's articles of association.

Brief Summary: The Rouses filed suit in the Superior Court of California, based on state and federal laws, against Wells Fargo. Wells Fargo removed the case to district court, where the Rouses' complaint was dismissed with leave to amend.

The amended complaint raised only state law claims, and the district court found that because national banks are citizens of the state where (1) their principal place of business is located and (2) their main office is located as designated in their articles of association. Consequently, Wells Fargo was deemed to be a citizen of California, and the district court remanded to state superior court because the Rouses were also citizens of California.

The Ninth Circuit looked to Wachovia Bank, N.A. v. Schmidt, which held that a national bank is not a citizen of every state in which it operates a branch, but is only a citizen of the state in which its main office is located. While Wachovia did not expressly address the issue at hand, the Court in that case stated that the difference between main office and principal place of business was "scant," because they were often in the same state. According to the Ninth Circuit, Wachovia Bank, strongly suggested that a national bank's citizenship was determined only by the location of its main office, not by its principal place of business.

Additionally, the Ninth Circuit tracked the history of jurisdictional law for national banks and state-chartered corporations, finding that while jurisdictional parity had been established for state-chartered and national banks, such parity was only established with respect to federal question jurisdiction, and not with respect to diversity jurisdiction.

Further, the Ninth Circuit determined that once Congress amended the diversity citizenship of a state-chartered corporation to include its principal place of business in 1958, the absence of an express linking, as Congress had previously done in 1882, could not justify reading § 1348 to include a national bank's principal place of business as another source of citizenship.

Dissent

The dissent was critical of the majority's (1) liberal interpretation of Wachovia Bank, and (2) the determination that the policy of jurisdictional parity between national banks and state-chartered corporations did not apply with respect to citizenship established by virtue of the location of the principal place of business.

Further, the dissent addressed the policy concern of placing national banks on a superior footing in accessing federal courts - especially where the national bank is broadly identified with the state in which its principal place of business is located, and the principles of federalism are better served by allowing a state court resolve the disputes of their residents with such a national bank.

Extended Summary: The Rouses sued Wells Fargo Bank, N.A., its Wachovia Mortgage division ("Wells Fargo") and NDeX West LLC in the Superior Court of California. The complaint was based on state and federal law concerning the Rouses' home loan and deed of trust. Wells Fargo removed to district court, filed a motion to dismiss the complaint for failure to state a claim, NDeX West joined, and the district court granted the motion and dismissed the complaint with leave to amend.

In their first amended complaint, the Rouses raised only state law claims, and after an order to show cause why the Rouses' case should no be remanded to state court for lack of diversity, and the district court held that national banks are citizens of the state where: (1) their principal place of business is located, and (2) their main office is located as designated in their articles of association.

Because Wells Fargo's main office is in South Dakota, and its principal place of business is in California, and the Rouses are citizens of California, the district court remanded the case to California Superior Court for lack of jurisdiction.

The Ninth Circuit provided that Wells Fargo's citizenship, as a national bank is governed by 28 U.S.C. § 1348, and not by 28 U.S.C. § 1332, which applies to state-chartered banks and other corporations. Under 28 U.S.C. § 1348, "[a]ll national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located."

In addressing the issue, the Ninth Circuit's focus was on the word "located" in § 1348, and began with the Supreme Court's determination that "located," as used in § 1348, was ambiguous on its face, thus the Ninth Circuit had to look beyond the plain meaning of the statute and the word's ordinary meaning.

While the Supreme Court has not addressed the issue, the Ninth Circuit looked to the Court's determination under Wachovia Bank, N.A. v. Schmidt, which addressed the issue of whether a federally chartered national bank is a citizen of every state where it operates a branch in addition to the state where its main office is designated. The Court in Wachovia Bank held that a national bank is not a citizen of every state in which it operates a branch, because to hold otherwise would contravene Congress's intent to protect the right of national banks to remove cases to federal courts.

While Wachovia Bank did not address whether a national bank is a citizen of the state in which its principal place of business is located, the Court did note that the omission of any reference to a principal place of business in § 1348 was of "scant" significance because "in almost every case ... the location of a national bank's main office and of its principal place of business coincide."

Wachovia Bank, in it's holding, expressly held that a national bank is a citizen of the state in which its main office, as set forth in its articles of association, is located. Because the Court did consider the principal place of business issue, but did not expressly hold that under § 1348 a national bank's citizenship included its principal place of business, the Ninth Circuit provided that Wachovia Bank strongly suggested that a national bank's citizenship was not determined by its principal place of business.

The Eighth Circuit, in resolving this issue, held that a national bank's citizenship is limited to the state designated in its articles of association as its main office. Section 1348 embodied Congress's intent to put national and state banks of the same jurisdictional footing, however, Congress then amended § 1332 to include principal place of business, and the Eighth Circuit reasoned that if Congress intended for § 1348 to include principal place of business it would have expressly amended § 1348 to do the same.

The Ninth Circuit then reviewed the history of the jurisdictional statutes. In 1875, Congress provided for removal of national bank cases to federal court, based on the belief that suits involving national banks arose under the federal laws. However, by 1882, Congress established the principal of jurisdictional parity between state-chartered banks and national banks - ending federal question jurisdiction for national banks.

In 1887, the law provided that "[a]ll national banking associations established under the laws of the United States shall ... be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same state." Thus, under the 1887 amendment, jurisdictional parity was established between a national bank and individual citizens.

In 1888, Congress revised the 1887 act, by providing the federal question jurisdiction for suits involving national banks was limited to (1) suits by the United States and (2) winding up bank affairs. The 1888 revision did not provide a reference to parity between national banks and individual citizens or state-chartered banks.

In 1911, Congress provided that "all national banking associations established under the laws of the United States shall, for the purposes of all other actions against them ... be deemed citizens of the States in which they are respectively located." The Court in Herrmann v. Edwards provided that the 1991 act maintained limits on federal jurisdiction established in 1887 - (1) federal question was only available for (i) suits by the United States or (ii) for winding up a national bank's affairs, and (2) diversity jurisdiction for all other suits, in which national banks were "deemed citizens of the states in which they are respectively located." The Ninth Circuit determined that to the extent that the 1911 established any principal of jurisdictional parity, it referred only to federal question and not diversity jurisdiction.

Finally, in the 1948 act, Congress provided that "[a]ll national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located." Again, the Ninth Circuit found no mention of jurisdictional parity in between national and state banks in the 1948 act.

In 1958, Congress revised the law of diversity citizenship for state-chartered corporations - a new provision was adopted, under which a state chartered corporation is a citizen of both (1) the state of incorporation and (2) the state of its principal place of business. The Ninth Circuit provided that even if Congress intended to link state and national banks for purposes of diversity citizenship, in 1948, state-chartered corporations were citizens of only the state in which they were incorporated, thus Congress would not have contemplated that a national bank would also be a citizen of the state in which its principal place of business was located.

Further, the Ninth Circuit determined that if Congress wanted to assure a link to state-chartered banks, it would have done so as it did in the 1882 act. In the absence of such a link, after the 1958 revision of citizenship for state-chartered corporations, Congressional intent did not tend to show that the citizenship of a national bank was based on its principal place of business, in addition to the state in which its main office is located.

As such, Wells Fargo is only a citizen of South Dakota, and complete diversity existed as against the Rouses, who are citizens of California.

Dissent

The dissent disagreed with the application of Wachovia Bank. Wachovia Bank held that a national bank is not a citizen of every state where it has any branch operations, and did provide that a national bank is only a citizen of the state designated as its main office.

The decision "places national banks on superior footing in their access to federal courts as compared to state-chartered corporations." The dissent agreed with the dissenting opinion in Wells Fargo Bank, N.A. v. WMR e-PIN, LLC, which promoted construing Wachovia Bank in favor of reading § 1348 in light of jurisdictional parity between national banks and state corporations.

Finally, the dissent raised the policy implication of the majority's decision. Under these facts, Wells Fargo, a bank identified with California and having its principal place of business in California for more than a century, can ensure federal court diversity actions. The majority's decision precludes state courts from resolving their residents' disputes, contravenes principles of federalism.

Panel: Judges Bybee, Gould, McKeown

Date of Issued Opinion: March 27, 2014

Docket Number: 5:11-cv-00928-DMG-DTB

Decided: Reversed and Remanded

Case Alert Author: Joseph Chaparo

Author of Opinion: Judge McKeown

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 05/01/2014 01:37 PM     9th Circuit     Comments (0)  

April 25, 2014
  United States v. Cannon - Fifth Circuit
Headline: Fifth Circuit Rejects Constitutional Challenge to Federal Hate Crimes Law.

Area of Law: Thirteenth Amendment; criminal law.

Issue Presented: Whether the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249(a)(1), is a valid exercise of Congress's power under § 2 of the Thirteenth Amendment.

Brief Summary: Defendants Cannon, Kerstetter, and McLaughlin were convicted in the U.S. District Court for the Southern District of Texas of committing a race-motivated hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 ("Shepard-Byrd Act"), 18 U.S.C. § 249(a)(1). Congress passed the relevant portion of the Shepard-Byrd Act pursuant to its powers under the Thirteenth Amendment, which abolished slavery and involuntary servitude. Defendants appealed, arguing that the Shepard-Byrd Act is unconstitutional. They also argued that the evidence presented at trial was insufficient to prove that they attacked their victim because of his race. The U.S. Court of Appeals for the Fifth Circuit affirmed their convictions because the Supreme Court's Thirteenth Amendment precedent allows Congress to define and regulate the "badges" and "incidents" of slavery so long as their definition is rational, and the Shepard-Byrd Act survives rational basis review, and because there was sufficient evidence in the record from which a reasonable jury could conclude that Defendants caused bodily injury to their victim because of his race.

Extended Summary: Defendants Cannon, Kerstetter, and McLaughlin were convicted in the U.S. District Court for the Southern District of Texas of committing a race-motivated hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 ("Shepard-Byrd Act"), 18 U.S.C. § 249(a)(1), for a 2011 assault in Harris County, Texas. Section 249(a)(1) makes it a federal crime to "willfully cause[] bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person." Congress passed this section of the Shepard-Byrd Act pursuant to its powers under the Thirteenth Amendment, which abolished slavery and involuntary servitude. Defendants appealed, arguing that the relevant portion of the Shepard-Byrd Act is unconstitutional. They also argued that the evidence presented at trial was insufficient to prove that they attacked their victim because of his race.

The U.S. Court of Appeals for the Fifth Circuit affirmed the convictions because the Supreme Court's Thirteenth Amendment precedent, namely Jones v. Alfred H. Mayer Co. (1968), allows Congress to define and regulate the "badges" and "incidents" of slavery so long as their definition is rational. Section 249(a)(1) of the Shepard-Byrd Act survives rational basis review because Congress could rationally determine that racially motivated violence is a badge or incident of slavery. Racially motivated violence was essential to the enslavement of African-Americans and was widely employed after the Civil War in an attempt to return African-Americans to a position of de facto enslavement. In light of these facts, it cannot be said that Congress was irrational in determining that racially motivated violence is a badge or incident of slavery. The court noted that other portions of the Shepard-Byrd Act, which apply to other protected categories and derive from other congressional powers, were not at issue in this case.

The Fifth Circuit also held there was sufficient evidence in the record from which a reasonable jury could conclude that Defendants caused bodily injury to their victim because of his race. Accordingly, the convictions were affirmed.

Circuit Judge Elrod, the author of the majority opinion, also filed a special concurrence. The opinion expressed concern that there is a growing tension between the Supreme Court's older precedents regarding the scope of Congress's powers under § 2 of the Thirteenth Amendment and the Supreme Court's more recent decisions regarding the other Reconstruction Amendments and the Commerce Clause.

For the full opinion, please see:
https://www.ca5.uscourts.gov/o...ub/12/12-20514-CR0.pdf.

Panel: Circuit Judges Reavley, Elrod, and Graves.

Argument Date: 8/5/2013

Date of Issued Opinion: 4/24/2013

Docket Number: No. 12-20514

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Thomas Evans Chandler, U.S. Dept. of Justice, for Plaintiff-Appellee United States; Thomas S. Berg, for Defendant-Appellant Cannon; Mervyn M. Mosbacker, Jr., for Defendant-Appellant Kerstetter; and Richard B. Kuniansky, Kuniansky & Associates, for Defendant-Appellant McLaughlin.

Author of Opinion: Circuit Judge Elrod (majority opinion and special concurrence)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 04/25/2014 10:44 AM     5th Circuit     Comments (0)  

April 24, 2014
  European Community v. RJR Nabisco
Case Name: European Community v. RJR Nabisco

Headline: Second Circuit Holds That Racketeer Influenced and Corrupt Organizations (RICO) Statute Can Apply Extraterritorially, Reinstating European Community's Claims Against RJR Nabisco

Area of Law: International Criminal Law

Issue(s) Presented: Whether the claims brought against RJR Nabisco by the European Community and 26 of its member states under the Racketeer Influenced and Corrupt Organizations ("RICO") statute are impermissibly extraterritorial, and whether the European Community qualifies as an organ of a foreign state for purposes of diversity jurisdiction.

Brief Summary: The European Community and 26 of its member states sued RJR Nabisco ("RJR") under RICO, alleging that RJR had facilitated a worldwide money-laundering scheme in connection with organized crime groups, laundered money through New York financial institutions, and committed common law torts in violation of New York law. The United States District Court for the Eastern District of New York dismissed the complaint on the grounds that the RICO statute has no extraterritorial application, and also dismissed the state law claims on the grounds that the European Community did not qualify as an organ of a foreign state under 28 U.S.C. §§ 1322, 1603, which "deprived the court of jurisdiction over the state law claims." The Second Circuit disagreed, vacating the judgment below and remanding the case to go forward. In regard to the RICO issue, the Second Circuit held that Congress had clearly manifested an intent for RICO to apply extraterritorially in the type of circumstances alleged here. The Second Circuit further held that the European Community qualified as a "foreign state" under 28 U.S.C. § 1332(a)(4), and "its suit against 'citizens of a State or of different States' comes within the diversity jurisdiction." To read the full opinion, please visit http://www.ca2.uscourts.gov/de...5f17e650ebd/1/hilite/

Extended Summary: The plaintiffs alleged that RJR directed and controlled a money-laundering scheme that involved a multi-step process. According to the complaint, Colombian and Russian organized criminal entities smuggled illegal narcotics into Europe. They then sold the drugs, making a profit in euros, which they laundered through money brokers who changed the euros into the "domestic currency of the criminal organizations' home countries." The money brokers then sold the euros money to cigarette importers at a discounted rate. Next, the cigarette importers would use these euros to purchase RJR's cigarettes from wholesalers, who obtained their cigarette supply from RJR. The plaintiffs contended that RJR directed and controlled this money-laundering scheme, thereby committing racketeering acts that violated the RICO statute "including mail fraud, wire fraud, money laundering, violations of the Travel Act, 18 U.S.C. § 1952, and providing material support to foreign terrorist organizations." They also alleged that RJR violated New York state law by committing fraud, unjust enrichment, public nuisance, negligence, negligent misrepresentation, conversion, and money had and received.

The district court dismissed the complaint, holding that RICO did not apply to activity outside the territory of the United States and could not apply to a foreign enterprise. The court further held that it lacked jurisdiction to hear the remaining state law claims because the European Community did not qualify as a "foreign state" under federal law, and therefore there was not complete diversity between the parties.

On appeal, the Second Circuit rejected both conclusions. First, as to the RICO claim, the court held that
when a RICO claim depends on violations of a predicate statute that itself manifests an unmistakable congressional intent to apply extraterritorially, RICO will apply to that conduct as well. Conversely, when a RICO claim depends on violations of a predicate statute that does not clearly apply to extraterritorial conduct, RICO will not apply extraterritorially either. "In all cases, what constitutes sufficient domestic conduct to trigger liability is the same as between RICO and the predicate that forms the basis for RICO liability," the court held. The court further held that the money laundering and material support of terrorism statutes both applied extraterritorially in circumstances such as those alleged in the complaint. The court added that although the wire fraud, money fraud, and Travel Act statutes did not apply extraterritorially, the plaintiffs' RICO claims based on those predicates also applied here because the plaintiffs had alleged that the elements of those statutes were violated in the United States. Accordingly, the plaintiffs' claims could go forward.

Second, the Second Circuit held that the European Community (which, after the lawsuit was filed, was incorporated into the European Union) qualified as a "foreign state." Specifically, the court deemed the European Community an "organ of a foreign state," and "thus an agency or instrumentality of a foreign state" under the relevant statutory provisions. The Second Circuit used the five factors set forth in Filler v. Hanvitt Bank, 378 F.3d 213, 217 (2d Cir. 2004) to determine whether or not the Plaintiff is considered an "organ". These five factors are: (1) whether the foreign state create the entity for a national purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in the [foreign] country; and (5) how the entity is treated under foreign state law. It concluded that the European Community satisfied most, if not all, of these factors.
To read the full opinion, please visit http://www.ca2.uscourts.gov/de...5f17e650ebd/1/hilite/

Panel: Judges Leval, Sack, and Hall.

Argument: 02/24/2012

Date of Issued Opinion: 04/23/2014

Docket Number: 11-2475-cv

Decided: Vacated and remanded.

Case Alert Author: Amy Stein

Counsel: John J. Halloran, Jr., Speiser, Krause, Nolan & Granito, for the Plaintiff-Appellants. Gregory G. Katsas, Jones Day, for the Defendants - Appellees.

Author of Opinion: Judge Leval

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 04/24/2014 02:20 PM     2nd Circuit     Comments (0)  

April 22, 2014
  The New York Times Company v. United States - Second Circuit
Headline: Second Circuit Reverses District Court in Part, Requiring Limited Disclosure of Classified Government Documents Pertaining to Legal Justification for Use of Drones for Targeted Killings of United States Citizens in Response to New York Times and ACLU FOIA Requests

Area of Law: Freedom of Information Act

Issue(s) Presented: Whether United States agency responses to FOIA requests, seeking documents related to the United Stated government's justification for a 2011 targeted drone strike killing three United States citizens in Yemen, one of whom the government claimed was a member of Al Qaeda, which refused to disclose responsive documents on grounds that they were classified, privileged, or met other FOIA exemptions and, in some cases, refused to admit or deny the existence of potentially responsive documents, were lawful?

Brief Summary: Plaintiffs, The New York Times, two of its reporters, and the American Civil Liberties Union, brought suit against the Department of Justice (DOJ), the Department of Defense, and the Central Intelligence Agency for failing to adequately respond to Freedom of Information Act (FOIA) requests for documents pertaining to the justification for the government's use of drone attacks that killed three American citizens in 2011. The United States District Court for the Southern District of New York granted the government's motion for summary judgment, dismissing the challenge to the FOIA responses, and the plaintiffs appealed. The Second Circuit affirmed in part, reversed in part, and remanded the case, holding that the government should be required to disclose a classified memorandum prepared by the DOJ's Office of Legal Counsel setting out the legal justification for the drone killings and to submit certain indices of relevant documents to the district court for review of their privilege and exclusion claims.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...006f148ca16/1/hilite/

Extended Summary: Plaintiffs-Appellants, The New York Times Company, two New York Times reporters, Charlie Savage and Scott Shane, and The American Civil Liberties Union (ACLU) (collectively, "Plaintiffs"), submitted Freedom of Information Act (FOIA) requests to the United States Department of Justice (DOJ), the United States Department of Defense (DOD), and the Central Intelligence Agency (CIA) (collectively, "the Government") seeking information concerning the legal justification for targeted drone strikes that killed three United States citizens, Anwar al-Awlaki and Samir Khan, along with Anwar al-Awaki's teenage son, Abdulrahman al-Awlaki, in Yemen in 2011. The DOJ's Office of Legal Counsel (OLC) denied some of the FOIA requests on the grounds that the requested documents were exempt from disclosure pursuant to FOIA exclusions for documents properly classified in the interest of national defense or foreign policy (exemption 1), records specifically exempted by statute - here, the Central Intelligence Agency Act of 1949 or National Security Act of 1947 (exemption 3) - or otherwise exempt as agency memoranda "not available by law to a party other than an agency in litigation with the agency" (exemption 5). The OLC also neither admitted nor denied the existence of other requested documents, asserting the existence or nonexistence of such documents was itself classified. Plaintiffs brought suit in the United States District Court for the Southern District of New York challenging the denials of the requests and the suits were later consolidated. The parties made cross motions for summary judgment and the district court granted Defendants' motions for summary judgment. After the district court entered judgment for Defendants, certain government documents were leaked and then subsequently released by the government, affirming the existence of a classified DOD-OLG memorandum and other documents that were responsive to Plaintiffs' requests.

The Second Circuit began by noting that the FOIA calls for broad disclosure of government records, but also sets out several exemptions to the required disclosure. The Second Circuit affirmed the district court's finding that the search undertaken for responsive documents was sufficient and agreed that the Government was not required to provide to the ACLU certain requested legal memoranda which were very brief, informal and pre-decisional, and constituted personal opinions of the writer. The Second Circuit reversed the district court in part, however, determining that the government should be required to disclose, in redacted form, a classified memorandum - the "OLC-DOD Memorandum" - that set out the OLC's confidential legal advice to the Attorney General relating to the use of drones for targeted killings, and to submit certain indices of relevant documents to the district court for review of their privilege and exclusion claims.

Specifically, the Second Circuit held that the government waived its right to withhold the "OLC-DOD Memorandum" under exemptions 1 and 5 as protected by the deliberative process and attorney-client privileges and as information about military operations, intelligence methods, and foreign relations activities by disclosing portions of the contents of the Memorandum in public statements and in its release of a classified "White Paper" to the public, following a leak of this document, in a public relations effort to convince the public of the lawfulness of the killing of al-Awlaki. The Second Circuit rejected the Government's contention that disclosure of the OLC-DOD Memorandum would inhibit agencies from seeking OLC's legal advice, reasoning that upholding that rationale would effectively mean a waiver of privileges protecting legal advice could never occur. The Second Circuit also rejected the Government's contention that the LOC-DOD Memorandum contents could not be understood without reference to other classified documents and found that, under the FOIA, a redacted version of the document should be provided after deletion of portions exempt under the statute.

The Second Circuit also ordered the Government to disclose indices listing certain documents, the existence of which the Government previously declined to confirm or deny and required the Government to submit other indices to the district court for in camera review on remand for review of claims of exemption and privilege.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...006f148ca16/1/hilite/

Panel:
Circuit Judges Newman, Cabranes, and Pooler

Argument Date:
10/1/2013

Date of Issued Opinion:
4/21/2014

Docket Number
: Nos. 13-422(L), 13-445(Con).

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

Case Alert Author: Gillian Kirsch

Counsel: David E. McCraw, The New York Times Company, New York, N.Y. (Stephen N. Gikow, 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, Brett Max Kaufman, American Civil Liberties Union Foundation, New York, N.Y., Joshua Colangelo-Bryan, Dorsey & Whitney LLP, New York, N.Y., Eric Ruzicka, Colin Wicker, Dorsey & Whitney LLP, Minneapolis, MN., on the brief), for Plaintiffs-Appellants American Civil Liberties Union and American Civil Liberties Union Foundation.

Sharon Swingle, U.S. Appellate Staff Atty., Washington, D.C. (Preet Bharara, U.S. Atty., Sarah S. Normand, Asst. U.S. Atty., New York, N.Y., Stuart F. Delery, Acting Asst. U.S. Atty. General, Washington, D.C., on the brief), for Defendants-Appellees.

(Bruce D. Brown, Mark Caramanica, Aaron Mackey, The Reporters Committee for Freedom of Press, Arlington, V.A., for amicus curiae The Reporters Committee for Freedom of Press, in support of Plaintiffs-Appellants.) (Marc Rotenberg, Alan Butler, Ginger McCall, David Brody, Julia Horwitz, Electronic Privacy Information Center, Washington, D.C., for amicus curiae Electronic Privacy Information Center, in support of Plaintiffs-Appellants.)

Author of Opinion: Judge Jon O. Newman

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Moskowitz @ 04/22/2014 08:43 AM     2nd Circuit     Comments (0)  

April 21, 2014
  Natural Resources Defense Council v. EPA
Headline: D.C. Circuit upholds EPA emission standards for cement manufacturing but strikes down EPA's affirmative defense for violations due to unavoidable malfunction because creation of such a defense is for courts, not the agency.

Area of Law: Administrative Law, Clean Air Act

Issue Presented: Whether certain aspects of the EPA's emission standards for the cement industry contravene the Clean Air Act and whether the EPA has statutory authority to create an affirmative defense in civil suits for violations of the standards due to unavoidable malfunction.

Brief Summary: In 2010, the Environmental Protection Agency (EPA) promulgated particulate emissions standards for kilns used in the manufacture of portland cement. The 2010 Rule also created an affirmative defense, available to manufacturers in private civil suits, when violations of the standards occurred because of "unavoidable" malfunctions. The affirmative defense replaced a previous EPA policy creating an exemption from emissions limitations during malfunction events. That rule was struck down the following year, after the D.C. Circuit determined that EPA had erroneously included information in its dataset that resulted in an arbitrarily low emission standard. In 2013, the EPA corrected the data errors and promulgated a new rule raising the limit of particulate residue from .04 lb/ton to .07 lb/ton. The 2013 rule also included the affirmative defense provision, which EPA believed was necessary to resolve a "tension" between the Clean Air Act's requirement that emission standards apply at all times and the fact that emission limits may sometimes be exceeded for reasons beyond the control of the source.

The Natural Resources Defense Council (NRDC) and other environmental groups challenged the revised rule, arguing that it violated part of the Clean Air Act, which states that no standard can diminish or replace a more stringent existing standard, created pursuant to other authority. Because the 2010 rule had required more stringent standards, the NRDC claimed the 2013 rule diminished that standard. The NRDC also challenged the affirmative defense provision on the grounds that it exceeded EPA's statutory authority because it is the role of the courts to create an affirmative defense, not the EPA.

The United States Court of Appeals for the District of Columbia Circuit upheld the 2013 rule but vacated the affirmative defense provision. Applying Chevron deference, the court found the Clean Air Act sufficiently ambiguous on the meaning of other authority and held the EPA's interpretation to be reasonable. The court also found reasonable EPA's interpretation that it may consider cost-effectiveness in determining the maximum reduction in emissions. Turning to the rule's affirmative defense provision, the court found the rule inconsistent with the statutory language granting courts the jurisdiction to award appropriate civil penalties. The EPA has authority over administrative claims and may intervene in civil cases, but it is the role of the courts to determine the appropriate remedies. The court found the EPA's arguments insufficient to justify encroaching on the judiciary but indicated that the EPA could make its substantive points in favor of moderating the penalty to the court when this issue arises in that venue.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i.../10-1371-1488926.pdf.

Panel: Kavanaugh, Srinivasan, and Edwards

Argument Date: October 24, 2013

Date of Issued Opinion: April 18, 2014

Docket Number: 10-1317

Decided: Affirmed in part, vacated in part

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): James S. Pew, Seth L. Johnson, John Walke, Meleah Geertsma, and Avinash Kar for petitioners. Matthew R. Oakes, Robert G. Dreher, and Steven E. Silverman for respondents.

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/21/2014 11:59 AM     DC Circuit     Comments (0)  

April 17, 2014
  Huffman v. The Hilltop Companies, LLC - Sixth Circuit
Headline: The presumption in favor of arbitration applies even after a contract expires, even if the contract's survival clause did not mention the arbitration clause.

Area of Law: Contract Law; Arbitration

Issue Presented: Does the strong federal presumption in favor of arbitration apply after a contract expires when the arbitration clause is not specifically listed in the survival clause?

Brief Summary: The plaintiffs each signed an employment agreement with the defendant. The agreement contained an arbitration clause, but the arbitration clause was not listed in the survival clause. After the plaintiffs' employment ended, they sued for alleged violations of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The defendant argued that the claim had to be submitted to arbitration. The Sixth Circuit held that the arbitration clause did not expire with the contract, even though it was not listed in the survival clause.

Significance: Despite the doctrine of expressio unius, arbitration clauses can survive after a contract expires even if they are not listed in the contract's survival clause.

Extended Summary: Defendant hired the plaintiffs in 2011 to review the files of mortgage loans originated by PNC Bank. The plaintiffs each signed an employment agreement that contained an arbitration clause. The clause stated that all claims "arising out of or related to" the agreement would be settled by arbitration. The agreements also contained a survival clause, which listed provisions of the agreement that would remain in effect after its expiration. The survival clause did not mention the arbitration clause.

After their employment agreements with the defendant expired, the plaintiffs sued, alleging that the defendant had violated the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The defendant filed a motion to dismiss and compel arbitration, arguing that the arbitration clause applied after the agreement's expiration even though the survival clause did not list it. The district court found for the plaintiffs. It relied on the doctrine of expressio unius est exclusio alterius, which states that when a contract contains a detailed list of particulars, courts should presume that items not included in that list were intentionally omitted. The district court reasoned that if certain provisions were included in the survival clause, the provisions not included were not meant to apply post-expiration. The defendant appealed.

The Sixth Circuit held that the doctrine of expressio unius, by itself, was not enough to rebut the strong presumption in favor of arbitration. It reasoned that the list of provisions in the survival clause was not meant to be exhaustive because it did not contain other clauses that would necessarily survive expiration, including a 12-month noncompetition clause and integration and severability clauses. Reading the employment agreement as a whole, the Sixth Circuit concluded that the arbitration clause was meant to survive the agreement, even though it was not mentioned in the survival clause. Thus, the Sixth Circuit reversed, holding that the district court should have dismissed the case and compelled arbitration.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0056p-06.pdf

Panel: Gilman, Cook, McKeague

Argument: March 19, 2014

Date of Issued Opinion: March 27, 2014

Docket Number: 13-3938

Decided: March 27, 2014

Counsel: ARGUED: Matthew C. Blickensderfer, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellant. Adam W. Hansen, NICHOLS KASTER, LLP, San Francisco, California, for Appellees. ON BRIEF: Matthew C. Blickensderfer, Eugene Droder III, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellant. Adam W. Hansen, NICHOLS KASTER, LLP, San Francisco, California, Rachhana T. Srey, NICHOLS KASTER, PLLP, Minneapolis, Minnesota, for Appellees.

Author of Opinion: Circuit Judge McKeague

Case Alert Author: Sarah Fuhrman

Case Alert Circuit Supervisor: Prof. Barbara Kalinowski

Edited: 04/17/2014 at 04:00 PM by Mark Cooney

    Posted By: Mark Cooney @ 04/17/2014 03:51 PM     6th Circuit     Comments (0)  

April 16, 2014
  United States of America v. Sergio Velazquez - Third Circuit
Headline: Third Circuit Finds Government's Five-Year Delay in Making Serious Search to Find Defendant Violates Right to Speedy Trial

Area of Law: Constitutional Law - Sixth Amendment

Issue Presented: Whether the right to a speedy trial guaranteed in the Sixth Amendment is violated when, after an initial effort to apprehend the defendant, the government's effort for nearly five years consist only of running the defendant' name a handful of times through the National Crime Information Center, despite other available leads?

Brief Summary: The Drug Enforcement Administration ("DEA") began investigating Sergio Velazquez ("Appellant") in June 2005. Appellant traveled from California to Philadelphia to meet co-defendant Pedro Curiel and informant to discuss the sale of cocaine. Appellant went back to California after discussions. A sale of cocaine between Curiel, another co-defendant and informant subsequently occurred. They were then arrested and indicted. In August 2005, a complaint and arrest warrant were issued for Appellant. A DEA special agent went to an address associated with Appellant in California, but he was not at that address. The case was assigned to the Marshals Service in Philadelphia. Deputy Marshal Degan was assigned to the case; he entered the warrant into National Crime Information Center ("NCIC") database and prepared a collateral request, which is a request for investigative assistance from a Marshals Service office in another jurisdiction. The Los Angeles Marshal Service received the collateral request. The Los Angeles Marshal Service did not take any steps to work on the collateral request. From November 2005 until November 2010 authorities checked the NCIC eight times for Appellant, but nothing came up and no further steps to apprehend Appellant were taken. A new collateral request was issued in June 2011, when Deputy Marshal Ilagan was assigned to the case. The LA Marshal Service took some steps to apprehend Appellant, but they were unsuccessful. In December 2011, Appellant was apprehended on an unrelated narcotics charge. He was then extradited to the Eastern District of Pennsylvania. In March 2012, Appellant filed a motion to dismiss the indictment on the basis of a speedy trial violation. The District Court denied his motion, finding that the government was reasonably diligent in pursuing Appellant. Thus, Appellant had to show specific prejudice to his defense from the delay between indictment and arrest, and the District Court held that he did not make this showing. The Third Circuit found that the length of delay in bringing Appellant to trial was extraordinary and that the government was not reasonably diligent in pursuing the Appellant. Thus, the delay in apprehending the Appellant was due to the government's conduct. The Appellant timely asserted his speedy-trial rights, four months, after he found out about his indictment. Due to the delay of apprehending the Appellant, there is a presumption of general prejudice that applies with considerable force in case of such delay. Thus, the Third Circuit vacated the District Court's conviction of Appellant and directed that the case be dismissed. There was a dissenting opinion by Judge Jordan.

Significance (if any):

Extended Summary:
The Drug Enforcement Administration ("DEA") began investigating Sergio Velazquez ("Appellant") in June 2005. Appellant traveled from California to Philadelphia to meet co-defendant Pedro Curiel and informant to discuss the sale of cocaine. After the meeting, police stopped Appellant and Curiel to identify the men. Appellant was not arrested and returned to California. In July 2005, after a sale between Curiel, another co-defendant and informant, Curiel and the co-defendant were arrested. The co-defendants were indicted on August 2, 2005. A complaint and arrest warrant were issued for Appellant the next day. David Pedrini, a DEA special agent in Philadelphia had a fellow agent from Los Angeles, Steve Pascoe, go to Appellant's California address, but he was unable to locate him.

The DEA declared Appellant a fugitive and turned over the search to William Degan, a deputy marshall in the United States Marshals Service office in Philadelphia. Degan entered Appellant's name into the National Crime Information Center ("NCIC") database, and into a Marshals Service information system. Entering Appellant into the NCIC database would allow any law enforcement agent that took Appellant into custody on unrelated charges to know that Appellant was wanted in another jurisdiction. Degan, in October 20