Monday, July 25, 2011

Published Circuit Opinions - July 25

Third Circuit:

Jesus Alberto Flores-Nova v. Atty Gen USA
Challenge to INA 'continuous prescence' requirement - no Chevron deference necessary, as Congress has clearly spoken;  No Equal Protection violation, as there's a rational basis for treating nonresident aliens differently; International Law challenges under OAS / IACHR TKO'd as IACHR opinions are not binding on US courts; Customary Int'l law challenge under Rights of the Child does not trump on-point statute.

USA v. Ruben Mitchell
 As arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment. (reversing District Court - arrest was for cocaine possession with intent to spread around.)
Dissent: information contained in DNA goes beyond 'identity' - debate on appropriateness of review under collateral-order doctrine.

Fourth Circuit:

US v. Stephen Digiovanni 
Fifteen-minute Terry traffic stop excessive in scope and duration - consent to seach was not freely given.

Seventh Circuit:

USA v. Berry Carr
Even post-Lopez,  de minimis effect on interstate commerce is sufficient for a Hobbs Act violation (convenience store robbery).

Vatcharee Pronsivaku v. Eric Holder
Immigration hearing protections were sufficient - opportunity to present case, rebut gov't's case.  Petitioner deported despite extensive assistance to DEA.  'Dura lex, sed lex.'

Union Pacific Railro v. CTA
 Even where a local railway holds an effective lease on a right-of-way, an attempt to secure precisely the same control by condemnation is an impermissible regulation, one preempted by the ICCTA.

Ninth Circuit:

Loan by predecessor in interest established lender as co-venturer, precluding later subrogation.  Dictum: foreclosure on property can be termed 'payment' of loan.

Comity requires that federal sentencing decisions honor state nunc pro tunc orders retroactively removing deft from probationary status at the time of the offense (not the time of sentencing) - circuit split flagged.
Dissent - gives state judges control over federal sentencing.

 Where plaintiff in a S1983 action makes detailed factual allegations and a plausible suggestion that a supervisor acquiesced in the unconstitutional actions of subordinates, pleading requirements of 8(a) are satisfied.

Administrative holding that raisin growers must contribute some of their product to a distinctly unrenumerative industry reserve stock supported by substantial evidence / not arbitrary & capricious; Not a Taking, as (1) only triggered by decision to sell crops in interstate commerce, (2) no physical taking, as it is merely a fixed percentage of the crop.  (Question of regulatory taking not briefed.)   Fines not Excessive.

Tenth Circuit:

Rural Water Sewer v. City of Guthrie
Federal statute provides that where a local association is in debt to the federal gov't for installing a water system, they enjoy certain competitive protections.  Held: the boundaries of the area served by such systems is determined customer-by-customer - the threshold is water provision, not enough water provision to put out a fire.  Cournterclaims roundly dismissed.  Some 'we don't need jurisdiction to rule on merits' wonkiness going on in the second half of the opinion.

Pater v. City of Casper, Wyoming
Placement of Notice of Assessment (effective lis pendens - not a lien, as property cannot be taken without additional processes) on title can be a deprivation of property interest

Merrifield v. Board of County Commissioners
Letter from department head recommending dismissal is sufficient notice for procedural due process; First Amendment claims of government (as employer) retaliation for 'associating with' legal counsel are subject to the 'matters of public concern' check. (Circuit split flagged.)  Pendant state law claims on matters of first impression are best resolved by the state courts.

Eleventh Circuit:

Juan Carlos Chavez vs Sec, Florida Department of Corrections 
Even in a death penalty case, 'garden variety' negligece and neglect by legal counsel is insufficient to equitably toll the 1 year habeus rule - egregious misconduct is required.  Thou shalt not kill.
Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.