Tuesday, December 18, 2012

DC Circuit -- Ampersand Publishing, LLC v. NLRB

First Amendment means that editorial content of newspaper / editorial discretion of employees cannot become a term or condition of bargaining.

No Section 7 protection for such a claim even if other objectives are mixed in.

As union was formed to give the workers editorial control, employer does not have to prove that their actions were motivated by 1A concerns.

Ampersand Publishing, LLC v. NLRB

DC Circuit -- Calpine Corporation v. FERC

Agency's ruling that it did not have jurisdiction to implement a tariff given the court's recent holding to that effect was not arbitrary/capricious.

Calpine Corporation v. FERC

Ninth Circuit -- Stewart v. Beach

Official's simple denial of grievance insufficient personal involvement for S1983 liability.

Lack of interlocutory appeal of qualified immunity doesn't make the trial judge's decision binding as law of the case.

Court did not err in asking whether it was clearly established that the conduct would violate the right as opposed to asking whether the conduct would violate a clearly established right.

RLUIPA doesn't allow claims against individual defts.

Stewart v. Beach

Tenth Circuit -- United States v. Jones

No per se violation of the Fourth Amendment when Missouri Police officers, thinking that they are in Missouri, effect a search in Kansas.

Deft was not seized when accosted in alley behind the house by police officers saying that they were there for the contraband.

Drug priors, a visit to a shop called "Grow Your Own," and deft's cursing when told that the police were there for the MJ plants sufficed for the Terry stop.

Police statements of investigative intent we not sufficient to make the consent to the search of the home involuntary.

Turning and walking into the house sufficiently demonstrated implied consent to the search.

Extrajuridictional acts by the police officers did not taint the warrants.

United States v. Jones


Where deportation predicate offense is not established as a predicate before the Immigration Judge, but is still as a matter of law a good predicate, petitioner cannot collaterally challenge the order of removal, as petitioner waived the opportunity for relief immediately subsequent to the deportation hearing, even if not informed of the opportunity. 

[Maybe. And the fact that we sometimes hedge on these quick summaries shouldn't establish that the non-hedged summaries are good ones.  Entertainment purposes only.]

No Apprendi error in sentencing factors.


Seventh Circuit -- Gavino Cruz-Moyaho v. Eric Holder

Board appropriately considered petitioner's evidence.

No jurisdiction over Board's declining to act sua sponte - only over actions sua sponte.

Class-of-one claim insufficient for Equal Protection.

Gavino Cruz-Moyaho v. Eric Holder

Seventh Circuit -- USA v. David Craig

Within guidelines imposition of consecutive sentences not unreasonable. 

Posner, concurring: De facto life sentences bad - economic and social costs.

USA v. David Craig

Sixth Circuit -- Yu Zhang v. Eric Holder, Jr.

BIA abused discretion in holding that a foreign nation's discrimination against religious leadership does not establish that laity would face similar hostility.

BIA requirement that letters documenting foreign government's abuses be notarized (presumably by officers of said government) is erroneous.

Yu Zhang v. Eric Holder, Jr.

Sixth Circuit -- Remark, LLC v. Adell Broadcasting Corporation

As there was no evidence that parties reserved their approval of the settlement agreement until the final signing of the document, unsigned settlement agreement can bind -- drafting and then sending the final agreement to the other party, who then signed, was sufficient offer and acceptance.

Matter of law appropriate for summary judgment.

Concur: Parol evidence other than the sending of the final instrument is a question for the finder of fact.

 Remark, LLC v. Adell Broadcasting Corporation

Sixth Circuit -- Erie County v. Morton Salt Inc.

Pleadings in an antitrust claim need not contain evidence that tends to exclude the possibility of lawful behavior - this is the summary judgment rule, not the motion to dismiss rule.

12(b)(6) rule is that pleadings must plausibly raise an inference of unlawful agreement.

Bidding irregularities insufficient -- plausibly lawful parallel conduct.

Plaintiff municipality's disinclusion from allegedly prejudicial statutory scheme goes to merits, not standing, as the harm of the statutory scheme comes from the conspiracy alleged.

 Erie County v. Morton Salt Inc.

Sixth Circuit -- Jeff Dye v. Office of the Racing Comm'n

Employer's discontinuance of banked-time payroll system is sufficient threat for a 1A retaliation claim.

Time lapse of two months is sufficient to prove causation.  Two years is per se not.

Trial court erred in granting SJ for deft, as jury could have found liability on 1A claim.

District Court erred in denying claim based on the fact that petitioner did not actually profess allegiance to the party in question - it suffices that the employer thought that he did.

Concur/dissent: No, it doesn't.

Jeff Dye v. Office of the Racing Comm'n

Fifth Circuit -- USA v. Travis McCabe (12/17)

No claim for improper joinder despite lack of conspiracy charge, given the continuity of the facts between the incidents.

Given the cumulative prejudicial evidence, trial court erred in denying the renewal of the motion to sever.

 Insufficient evidence for backward-looking denial of access to the courts claim (police destruction of corpse), as the government never defined what the prospective S1983 cause of action might be.

Trial court did not plainly err in holding that burning the car was a seizure.

No error in holding that federal obstruction statute does not require that the deft intended to obstruct a specifically federal investigation.

Obstruction statute not overly vague, sufficiently grammatical.

Sentencing bump for aggravating factor does not violate Double Jeopardy.

Trial court did not err in ordering new trial for fabricating police report when a second report turned up. 

USA v. Travis McCabe

Fourth Circuit -- US v. Osama Ayesh

Extraterritorial application of fraud statutes comported with the statutes and with due process.

Statements made during 5 hour interrogation after 19 hour (non-custodial) plane flight were voluntary for Miranda purposes.

Sufficient evidence for fraud conviction even where the government eventually received the services - diversion of the funds with intent suffices.

US v. Osama Ayesh

Second Circuit -- Gashi v. Holder

 A list of cooperating potential witnesses for an international tribunal is considered a protected social group when considering deportation of a member of that group.

Status made the petitioner visible to potential persecutors.

Immutable status, as they all witnessed certain acts.

Gashi v. Holder

Second Circuit -- Konowaloff v. Metropolitan Museum of Art

Claim properly dismissed on 12(b)6, as it was clear from the face of the pleadings that the Act of State doctrine barred the suit.

When a successor government does not repudiate a seizure of its predecessor, challenge to the seizure is still barred under the Act of State doctrine.

Konowaloff v. Metropolitan Museum of Art

First Circuit -- Shay v. Walters

Tort claim time-barred, as SOL not tolled for alcoholism, and deft was on notice of the claim shortly after it accrued.

Element of defamation claim not met given fictional name in roman a clef.  Conduct not defamatory, either.

NIED claim derivative of the defamation claim.

Shay v. Walters
Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

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