1500

1500 Cases

Well, somewhere around the Ninth Circuit, we passed 1,500 posts.  Taking into account the occasional announcement post and the fact that the blog started off as a one-page-per-day operation, it seems appropriate to mark the milestone here.  Off to secure a bottle of finest plonk to celebrate.

-MB

Federal Circuit -- ABRAMS V. SOCIAL SECURITY ADMIN.

Chevron deference to agency determination that not implementing instructions as to case management is good cause sufficient for ALJ's removal.

Substantial evidence for agency's so finding when ALJ didn't speed up docket after instructed to do so in email.

ABRAMS V. SOCIAL SECURITY ADMIN.

DC Circuit -- Sharon Rollins v. Wackenhut Services, Inc.

Issuance of gun to employee was not enough to defeat per se rule that suicide is an intervening cause sufficient to bar negligence liability - trial court correctly dismissed claim sua sponte.

Certification of question to DC Ct. App. inappropriate.

Leave to amend properly denied, as request was made in the alternative at the end of another motion, and no copy of the proposed amendment was attached to the motion.

No error in denial with prejudice, given unlikely nature of claim.

Concurrence - many thoughts on 12(b)(6), inter alia,  if dismissal of claim is on motion, plaintiff has leave to amend.


Sharon Rollins v. Wackenhut Services, Inc.

DC Circuit -- Vernon Earle v. DC

S1983 Vienna Convention consular notification claim accrues with arrest.  It is not ongoing, neither is it tolled on the basis of fraudulent concealment of the right.

Vernon Earle v. DC

DC Circuit -- Black Beauty Coal Company v. MSHR

Combustible materials and a burning smell in the mine were enough for the violation - no need for actual combustion or proof that the materials had been there awhile.

Circumstantial evidence can be proof of inadequate training.

High negligence finding supported by substantial evidence.

Black Beauty Coal Company v. MSHR

DC Circuit -- USA v. Ernest Moore

No plain error in trial judge's mis-description of elements of the crime during plea colloquy, as deft did not establish harm from the error to substantial rights.

Deft's dispute as to priors in the PSR was waived at sentencing, despite lack of any strategic reason for him to have done so.

Excision of language from plea agreement granting restitution to all claimants does not mean that deft does not consent to judge ordering restitution to all claimants.

Order of judgement not citing plea agreement as basis for restitution was properly made under authority granted in plea agreement.

Counsel's apparent unfamiliarity with sentencing guidelines insufficient to establish ineffective assistance.

USA v. Ernest Moore

Eleventh Circuit -- Florida Transportation Services, Inc. v. Miami-Dade County

In-state company has sufficient prudential standing to challenge exclusionary licensing scheme under the Dormant Commerce Clause.

Local permitting scheme that excludes new entrants to the market plainly imposes a burden on interstate commerce, regardless of where the existing and potential entrants to the market are incorporated.

No local benefit rationally furthered by the licensing scheme.

Market participant exception doesn't apply, as the locality doesn't provide stevedoring services.

Lost profits properly awarded, given likelihood of licensure and proven willingness of market participants to do business with new entrants to the market.

Florida Transportation Services, Inc. v. Miami-Dade County

Eleventh Circuit -- Ronald Bert Smith v. Commissioner, Alabama Department of Corrections

Filing of Habeas petition without fee does not toll the AEDPA one year clock.

Where in-state counsel is possibly incompetent, lack of pro hac vice status for out-state-counsel does not allow court to find abandonment sufficient to equitably toll the AEDPA deadline.

Ronald Bert Smith v. Commissioner, Alabama Department of Corrections

Tenth Circuit -- Kirch v. Embarq Management CO

There is no aiding and abetting liability under ECPA.

As an ISP generally has access to its customers' data, there can be no improper acquisition of the contents of  that data under ECPA.

Kirch v. Embarq Management CO

Tenth Circuit -- United States v. Washington

Oklahoma juvenile conviction for pointing weapon dismissed after deft served probation functions as a valid ACCA predicate.

United States v. Washington

Tenth Circuit -- Jefferson County School v. Elizabeth E.

For a expenses at a second school to be reimbursable under IDEA, courts merely consider whether specifically designed instruction is provided and whether services are provided in order to help the child benefit from those services.

Exigent admission to inpatient medical facility without notice to the school district does not violate 10-day notice provision.

Where the District does not inform the parents of intent to evaluate, no violation of the statute in not making the child available for evaluation.

Jefferson County School v. Elizabeth E.

Ninth Circuit -- ABDUL ALOCOZY V. USCIS

When government allows alien to avoid deportation for a criminal offense, this does not operate as a waiver barring consideration of the offense in subsequent naturalization proceedings.

Retroactive cancellation of the statutory provision allowing government to waive deportation does not mean that alines who utilized it had a valid expectation that it would bar consideration of the matter during naturalization proceedings.

ABDUL ALOCOZY V. USCIS

Ninth Circuit -- USA V. JASON LEE

Guilty plea where the charging document articulates several theories of the crime, only some of which establish it as a predicate for a subsequent sentencing, is insufficient to establish the predicate under modified categorical review.

Where statute allows for reduced sentence where certain findings are made - findings that would remove the conviction as a predicate - and the reduced sentence is made without findings on the record, the reduced sentence in itself is insufficient to disqualify the conviction as a valid predicate.

No error in denial of entrapment instruction.

USA V. JASON LEE

Ninth Circuit -- OSCAR ROJAS V. ERIC H. HOLDER JR.

Immigration judge properly considered evidence in pending criminal trial of petitioner, as it was probative.

No denial of Due Process in the criminal action from IJ's consideration.

OSCAR ROJAS V. ERIC H. HOLDER JR.

Eighth Circuit -- United States v. Derek Allmon, Sr.

Sentencing court cannot sua sponte impose a post-sentencing restriction on prisoner communication.  (Barring communication with everyone except counsel of record.)

United States  v.  Derek Allmon, Sr.

Eighth Circuit -- M.M. v. Dist 0001 Lancaster Co. School

Administrative finding that a certain educational tactic was counterproductive is not in itself proof that the school district's educational plan to the contrary was not in good faith.

Notice of meetings and chance to give views was sufficiently meaningful participation as required by statute.

M.M.  v.  Dist 0001 Lancaster Co. School

Seventh Circuit -- USA v. Adebisi Adigun

Even absent colloquy informing deft of the waiver, a guilty plea without a written agreement preserving certain grounds for appeal operates as an unconditional guilty plea waiving all ex ante non-jurisdictional grounds for appeal.

This is jurisdictional - open question as to whether government can waive it, but as govt hasn't in this case, court has no subject matter jurisdiction to hear a suppression challenge.

Courts reasons for denying downward variance make erroneous imposition of old statutory minimum sentence harmless error.

USA v. Adebisi Adigun

Seventh Circuit -- Peter Poole, III v. Debbie Issacs

Imposition of a modest fee for medical services does not violate the 8th Amendment.

Peter Poole, III v. Debbie Issacs

Fourth Circuit -- US v. Gary Gillion

Proffer agreement that by its terms contemplates trial binds post-indictment, requiring deft to take polygraph.

Statements were hamless anyway.

Interposing a similarly-named shell corporation between customer and employer for purposes of siphoning profits is fraud on the employer; the employer has a property interest.

Misstatements (forged signatures, use of certain kinds of checks) were sufficiently material.

Mailings from the shell corporation sufficient for mail fraud trigger.

US v. Gary Gillion

Fourth Circuit -- Beach First National Bancshares v. Michael Anderson

Bankruptcy trustee of parent corporation has standing for breach of fiduciary duty suit against directors of subsidiary bank taken over by the FDIC only with respect to a real estate transaction that affected the rights of the parent corporation.

Beach First National Bancshares v. Michael Anderson

Federal Circuit -- CW ZUMBIEL V. KAPPOS

Adding a finger flap to a carton was a sufficiently obvious move, regardless of how the carton was intended to be carried, especially as there's no particular reason that the carton should be carried in that way.

Adding flap dispenser to carton similarly obvious.

Preamble to claim appropriately considered.

Dissent: It's a box with holes in it at obviously logical points.

CW ZUMBIEL V. KAPPOS

Tenth Circuit -- Blehm v. Jacobs

When assessing substantial similarity in a copyright action, specific protectible elements rather than general assessments must be considered.

Blehm v. Jacobs

Tenth Circuit -- Hill v. Vanderbilt Capital Advisors

Dismissal/remand for lack of standing is at least colorably a dismissal for lack of subject matter jurisdiction and therefore unreviewable.

Post-removal addition of a uniquely federal cause of action does not allow for review of subsequent unreviewable remand.

Exception to nonreviewability of remand requires divisible orders - elements of a single claim dismissed by a single order cannot be separately assessed.

Hill v. Vanderbilt Capital Advisors

Ninth Circuit -- KEVIN COOPER V. MICHAEL RAMOS

Collateral challenge to conviction under S1983 by an as-applied challenge to state DNA testing statute is barred under Rooker-Feldman as a de facto federal review of (not appealed) state court judgement.

Dismissal without prejudice as to not-barred claims but silent as to leave to amend is sufficiently final for appeal.

No error in denial of leave to amend, as the claim was not salvageable.


KEVIN COOPER V. MICHAEL RAMOS

Seventh Circuit -- USA v. Fairly Earls

Limiting instruction was sufficient to allow evidence of potential state sentence for unrelated bad acts, as it was evidence of deft's motive to flee with fake passport data.

Police ID at trial of deft in photographs was harmless error.

For sentencing purposes, underlying conviction in the relevant section need not have already been obtained.  Language suggesting otherwise is surplussage because of  the cross-reference.

USA v. Fairly Earls

Seventh Circuit -- Ohio Chemical Servic v. Falconbridg

A company's agreement with a distributor that the distributor should reduce its own production levels of the material being distributed is not price fixing and therefore not a per se violation of the Sherman Act.

Trial court does not need to provide extensive reasoning for holding that antitrust case will be decided according to rule of reason rather than per se.


Ohio Chemical Servic v. Falconbridg

Seventh Circuit -- Ronald Slade v. Board of School Dir

Negligence is not a sufficient basis for a S1983 suit.

Plaintiff's enticement claims properly dismissed before trial.

Ronald Slade v. Board of School Dir

Seventh Circuit -- Arthur Lewis, Jr. v. City of Chicago

(b)(2) Class action intervention untimely subsequent to entry of final judgement where the potential intervenors had notice that they were not within the class as amended and the final relief was reasonable with respect to those affected.

Arthur Lewis, Jr. v. City of Chicago

Sixth Circuit -- In re: Joel DeGroot

Bankruptcy Court has discretion under statute to consider an unscheduled asset abandoned to a (non-creditor) third party.

 In re: Joel DeGroot

Second Circuit -- United States v. Metter

US Attorney's certification to an interlocutory appeal on suppression is conclusive proof of materiality and a sufficient showing as to good faith.

United States v. Metter

First Circuit -- Marek v. State of Rhode Island

For a Takings Clause action to be ripe, plaintiff must have exhausted all state court remedies for just compensation.

Undeveloped mechanisms for state court remedies are not therefore futile.

Road expansion scheme tied to cancelled plans for residential development cannot be reviewed as capable of repetition yet evading review.

Marek v. State of Rhode Island

First Circuit -- Awuah v. Coverall North America, Inc.

Neither Federal not Massachusetts law requires any heightened notice for arbitration clauses in commercial agreements.

Awuah v. Coverall North America, Inc.

Tenth Circuit -- Frontier State Bank Oklahoma v. FDIC

Statute bars Article III review of FDIC minimum capital requirements, as there are no discoverable standards to assess them.

Board & ALJ skepticism as to revenue model was reasonable.

FDIC's requirement that bank both increase capital and decrease risk was reasonable.

Agency decisions on liquidity reasonable, as the substantial evidence supporting the agency's conclusions can be a macro assessment of total risk as opposed to assessment of individual strategies.

Given findings on capital, liquidity and risk, per se substantial evidence for mismanagement.

Frontier State Bank Oklahoma v. FDIC

Tenth Circuit -- Barlow, Jr. v. C.R. England Inc.

No prima facie case for race-based workplace discrimination, given lack of evidence of racially charged situations.

Given corporate shell created by worker, service-industry worker properly characterized as independent contractor.

Retaliatory firing presents genuine issue, as the firing happened around the one-year anniversary of the claim/start of benefits, triggering internal review.

Barlow, Jr. v. C.R. England Inc.

Ninth Circuit -- GRISELDA SANCHEZ V. ERIC H. HOLDER JR.

Admission of statements in agency record of interrogation not fundamentally unfair/hearsay, as the FRE don't apply to immigration proceedings.

As petitioner was attempting to aid another's illegal passage into the country, mens rea requirement as to her own passage is established.

GRISELDA SANCHEZ V. ERIC H. HOLDER JR.

Ninth Circuit -- VERONICA GUTIERREZ V. WELLS FARGO BANK, N.A.

No error in denying arbitration, as demand for arbitration was not filed until well into the pendency of the case and subsequent to the Scotus decision requiring such requests to be honored.

State good faith requirement is preempted by federal statute allowing banks to set posting order for transactions.

State law prohibiting fraudulent or misleading characterizations as to transaction posting order is not preempted.

No clear error as to standing, class certification. 

Sufficient proof of misleading statements.

VERONICA GUTIERREZ V. WELLS FARGO BANK, N.A.

Ninth Circuit -- REDOIL V. EPA

Deference to agency finding resolving statutory ambiguity as to the classes of vessels to which the statute applies.

Agency's interpretation of own regulations legally permissible under Auer.

REDOIL V. EPA

Ninth Circuit -- USA V. MARK PHILLIPS

Plain error in trial court holding that buying a watch through the mail with the loot is sufficient to trigger the mail fraud statute.

As the money laundering was sufficiently separate from the fraud, there is no merger problem that would require the court to hold that the money laundering was conducted with profits as opposed to gross proceeds of fraud.  (The funds can be characterized one way for one underlying offense, and the other for the other.)

No plain error in prosc's description in closing of deft's testimony as lies.

No plain error in sentencing instruction that deft not frequent areas where illegal drugs are used or sold - condition implies a mens rea element.

Where government seeks only monetary forfeiture, no jury/Apprendi requirement - court below erred in denying.

USA V. MARK PHILLIPS

Ninth Circuit -- LAURA ARTEAGA-DE ALVAREZ V. ERIC H. HOLDER JR.

Inconsistency with a prior immigration adjudication does not present a Due Process claim sufficient for jurisdiction.  Jurisdiction is proper only for errors of law.

No Chevron deference to agency finding, as the principle is not in any published adjudication.

Alternative means of immigration is not a categorical bar to hardship defense.

Concur/Dissent - No jurisdiction over the claimed error of law, as it's actually a factual holding.


LAURA ARTEAGA-DE ALVAREZ V. ERIC H. HOLDER JR.

Eighth Circuit -- Dairy Farmers of America v. Bassett & Walker International

Communication by phone, email, and fax insufficient to establish the transaction of business under state long-arm statute.

Given the totality of the factors, insufficient minimum contacts to satisfy Due Process.

Dairy Farmers of America  v.  Bassett & Walker International

Seventh Circuit -- Shontay Humphries v. Milwaukee

County official who denies license based on state administrative finding is not subject to S1983 liability for not investigating the facts of the state finding.

Shontay Humphries v. Milwaukee

Seventh Circuit -- Douglas Richards v. NLRB

Where plaintiff seeking relief before an agency claims both personal harms and harms to persons not before the Board, complete agency relief to the plaintiffs removes standing for purposes of the appeal without regard to the relief (or lack of relief) granted to those unnamed others.

Charging Party status before the NLRB does not change this.

 Douglas Richards v. NLRB

Seventh Circuit -- Appleton Papers Inco v. EPA

No clear error in denying FOIA request under work product exception where the documents are a mix of relevant facts and protected opinions.

Work product is distinct from attorney/client -- partial disclosure/waiver does operate as a waiver for the whole.

Appleton Papers Inco v. EPA

Sixth Circuit -- USA v. Mario Washington

Sufficient evidence for the conviction.

No error in exclusion of witness conviction for theft of utility services, as not categorically a crimen falsi.

Jury questions on collateral matters appropriately unanswered.

Sentencing bump for obstruction of justice appropriately & constitutionally imposed after deft, in testimony at trial, denied committing the crime. 

Permanent injury to victim sentencing bump correcty imposed.

USA v. Mario Washington

Sixth Circuit -- USA v. Solomon Carpenter

'Where the condition of supervised release says that the prisoner "shall" participate in a drug treatment program, it is not an impermissible delegation of authority to the probation officer. 

USA v. Solomon Carpenter

Fourth Circuit -- Philip Decohen v. Capital One, N.A.

Where local lender originates loan before transferring it to a national bank, state regulatory statutes are not preempted by federal loan origination statutes.

No field preemption for debt cancellation agreements.

Reference to state statute in loan agreement elected that state's law, and the lender is therefore bound by another term of the statute.

Philip Decohen v. Capital One, N.A.

Second Circuit -- Langrock Sperry v. Citigroup

District court cannot impose fees as sanction absent finding of bad faith.

Due Process requires that imposition of fees requires notice and an opportunity to be heard.

Langrock Sperry v. Citigroup

Second Circuit -- MacDermid, Inc. v. Deiter

Use of a computer server in Connecticut suffices for jurisdiction in CT by long-arm statute.

Servers are computers.

Deft knew the location of the company servers, therefore there was sufficient purposeful  availment for Due Process.

MacDermid, Inc. v. Deiter

First Circuit -- Bachorz v. Miller-Forslund

Conduct of parties evinced waiver of lease requirement that written consent be obtained prior to subleasing.

Statutory violations by landlord too trivial to affect the equities of the agreement.

Bachorz v. Miller-Forslund

No Published Opinons Today

As of 2:45PM ET.

Federal Circuit -- SLESINGER V. DISNEY ENTERPRISES

As earlier court had held that plaintiff had assigned all IP rights, collateral estoppel bars the suit.

SLESINGER V. DISNEY ENTERPRISES

DC Circuit -- Sealed Case

Restitution is not per se part of the sentence for purposes of appeals waiver.  Circuit split flagged.

Based on agreement, colloquy, and contra proferentem, appeals waiver did not waive appeal rights for the restitution.

 No abuse of discretion in restitution order.

Sealed Case

Ninth Circuit -- NATIONAL ELEVATOR INDUSTRY PEN V. VERIFONE HOLDINGS, INC.

When assessing scienter for purposes of PSLRA, courts can use holistic approach, piecemeal approach, or both.

Despite the facts that individual instances were explainable, viewed holistically, the inference of deliberate recklessness was at least as compelling as any other, and therefore the claim was sufficiently pleaded.

Charging a controlling person under 20(A) means that you have to establish scienter at pleading for the controlled persons violation of 10(b).

NATIONAL ELEVATOR INDUSTRY PEN V. VERIFONE HOLDINGS, INC.

Eighth Circuit -- United States v. Jeffrey J. Grimes

Where deft is indicted in one federal jurisdiction but subsequently brought to trial in a second, the Speedy Trial Act clock starts with the proceedings in the second.

Convicted counts were multiplicitous under Blockberger, but no need for resentencing as they run concurrently.  Merely vacated. 

No error in career offender sentencing bump, given  nolo contendere plea.

288 Month sentence for harassing telephone calls (upward departure) not substantively unreasonable.

United States  v.  Jeffrey J. Grimes

Eighth Circuit -- United States v. James Bruguier

Publication of Dissent for opinion published 12/13 --

Two cases published the same day in this Circuit reached opposite conclusions on a critical point of law.  [MB readers undoubtedly noticed this.]

En banc, perhaps?


United States  v.  James Bruguier

Sixth Circuit -- Dereck Dawson v. USA

Absent evidence of jury reliance on the instruction, ineffective assistance claim for not objecting to an instruction was harmless error.

No ineffective assistance claim for not objecting to prior bad act evidence, as court might have found it probative.

Tennessee Attempted Rape statute is categorically an ACCA predicate, despite the fact that it can be accomplished by fraud -- residual clause.

Dereck Dawson v. USA

Fourth Circuit -- North Carolina Growers' Assoc. v. Hilda Solis

By temporarily reinstating a void rule, the agency engaged in rulemaking by the terms of the APA.

Agency did not plainly manifest its reliance on the Good Cause exception at the time of rulemaking.

Insufficient notice & comment.

Christmas tree growers are not agricultural workers.

North Carolina Growers' Assoc. v. Hilda Solis

Third Circuit -- USA v. Dontey Tucker

In modified categorical analysis, where the charging paper and the jury instructions are vague as to which drug the deft is alleged to have sold, the conviction is not a valid ACCA predicate if it might have been MJ as opposed to cocaine.

Where state precedent allows trial conviction for possession with intent to distribute a certain drug if another (presumably similar) drug is proven - and not the one in the bill - the ACCA predicate is still valid for the drug in the bill.

USA v. Dontey Tucker

Third Circuit -- Timothy Defoe v. Lenroy Phillip

Statutory Certiarori jurisdiciton over the Supreme Court of the Virgin Islands is proper here, given exceptions to final order rule.

Supreme Court of the Virgin Islands may overturn Circuit precedent on matters of territory law that was held prior to its creation, but it must not manifestly err in doing so.

Manifest error is things like internal contradiction or blatantly ignoring plain text of a statute.

The Supreme Court of the Virgin Islands erred, but not manifestly so, as they justified decision under ejustem generis.

Timothy Defoe v. Lenroy Phillip

Second Circuit -- Rivera v. Rochester Genesee Regional Transportation Authority

District Court erred in granting SJ against Title VII plaintiff, given hostility of work environment, language used.

Title VII does not require that the retribution happen before the protected conduct.  (Yes.)

Retribution claim correctly dismissed, as there were bona fide reasons for the adverse employment action.

Second retribution claim incorrectly dismissed, due to proximacy of conduct and subsequent action.

District court erred in dismissing the state law claims - jurisdiction is proper.

Rivera v. Rochester Genesee Regional Transportation Authority

Second Circuit -- Georgitsi Realty, LLC v. Penn-Star Insurance Company

Questions certified to NY Court of Appeals:

May malicious damage be found to result from an act not directed at the insured property?  What is the state of mind required?  Do you have Prince Albert in a can?

Georgitsi Realty, LLC v. Penn-Star Insurance Company

Second Circuit -- Looney v. Black et al

Town employee did not have constitutionally protected interest in full-time employment, as there were no specific guarantees made to him -- qualified immunity to the town official deft.

Employee with responsibility for implementing building code was speaking on matters related to his job when he spoke about wood-burning stoves -- consequently, no 1A protection.

Looney v. Black et al

Federal Circuit -- ROAD AND HIGHWAY BUILDERS V. U.S.

Where the IRS acquires funds based on a claim later determined to be spurious, no recovery if no evidence of bad intent.

ROAD AND HIGHWAY BUILDERS V. U.S.

DC Circuit -- Coalition for Responsible Reg v. EPA

Concurrences/Dissents from denial of en banc for EPA regulation of greenhouse gasses.

Dissent 1: Allowing EPA to regulate Greenhouse gasses conflicts with text, allows absurd results, conflicts with legislative intent.  Brown & Williamson -- Congress never meant to impart the authority.

Dissent 2:  Absurd results should have dictated a contrary agency interpretation of statute.  Term used elsewhere in statute.  Costs of interpretation.  Not compelled by Scotus decision as to another part of the Clean Air Act.  Too much discretion to agency.

Coalition for Responsible Reg v. EPA

Eleventh Circuit -- Barbara Kragor v. Takeda Pharmaceuticals America, Inc.

When you discharge someone, allegedly on the basis of age discrimination, and then say that she was a model employee, it creates a genuine issue of material fact as to whether the discharge was, as claimed at the time, for poor performance.

Barbara Kragor v. Takeda Pharmaceuticals America, Inc.

Eleventh Circuit -- Miller's Ale House, Inc. v. Boynton Carolina Ale House, Inc.

As the Circuit has previously ruled that the term "ale house" is generic, there's no basis for a Langham Act suit.

Issue of genericism can be relitigated absent evidence of a secondary meaning.  Circuit split flagged.

No undue copying of trade dress in the furnishings and layout of the pubs.

Miller's Ale House, Inc. v. Boynton Carolina Ale House, Inc.

Ninth Circuit -- USA V. DAVID YEPEZ

As the sentencing predicate was valid and there was no right to counsel violation, petitioner's lack of exhaustion of administrative remedies prior to collateral challenge to the offense underlying the illegal reentry charge is not excused.

USA V. DAVID YEPEZ

Ninth Circuit -- USA V. DAVID YEPEZ

Federal sentencing bump correctly applied, despite state court's retroactive nunc pro tunc revocation of parole status backdated to the day before the commission of the crime.  Otherwise would be an abdication of federal authority.

Dissent: Federalism , deference, federal sentencing discretion.

USA V. DAVID YEPEZ

Ninth Circuit -- BARNES-WALLACE, ETAL V. BOY SCOUTS OF AMERICA

As plaintiffs had intention to use facilities leased by the state to the Boy Scouts, they have standing to challenge the lease under state & federal constitution.

Lease does not violate California Constitution as the religious aspect is incidental to the Scouts' use of the land.

No violation of Establishment clause, as, given the many leases to secular organizations, a reasonable observer would not conclude that the state was engaging in religious activity.

No Equal Protection violation, as the Scouts were treated equally.

No contractual claim, as the plaintiffs did not attempt to use any of the facilities specifically mentioned by the contract.


BARNES-WALLACE, ETAL V. BOY SCOUTS OF AMERICA

Seventh Circuit -- Christopher Parish v. City of Elkhardt

Where damages award in S1983 false imprisonment suit appears to suggest that the finder of fact thought that the deft was guilty of the underlying offense, court must allow testimony exculpatory of the underlying offense.

Court's allowing govt to redact exculpatory elements of eyewitness deposition was error.


Christopher Parish v. City of Elkhardt

Seventh Circuit -- USA v. James Elliott

As burglaries were on different days and were of different houses, no error in ACCA sentencing bump for committing crimes on multiple occasions.

USA v. James Elliott

Seventh Circuit -- Charles Adams v. Raintree Vacation

Nonparties to contract can enforce forum selection clause if either affiliates or holding a mutual relation in interest to parties to the contract. 

Forum selection clause can survive finding that the contract itself is fraudulent, as the clause is not in Sanskrit.

Charles Adams v. Raintree Vacation

Seventh Circuit -- Joshua Beller v. Health and Hospital

 For purposes of the Emergency Treatment statute, an ambulance is not operated by a hospital when it is functioning according to community-wide EMS standards.

Deference to the agency's interpretation that this is a clarification of a rule, and not retroactive application of a new rule, for which statutory authority would have been required.

Joshua Beller v. Health and Hospital

Eighth Circuit -- Bank of Nebraska v. Mark Rose

Bankruptcy court correctly assessed lender's actual subjective reliance on debtor's representations, not whether that reliance was justifiable.

No error in adjudication of state law counterclaim, as both parties consented, and as the counterclaim became a chose in action which was the property of the estate, meaning participation of the trustee was necessary for standing.  Plus there's no certainty the debtor was aggrieved absent proof of the claim's value.  Plus debtor waived the claim by not timely filing it.

Bank of Nebraska  v.  Mark Rose

Eighth Circuit -- United States v. Roger Bugh

Sufficient evidence to reject entrapment defense, as deft had aired plans to illegally sell firearm before being approached by the CI.

Aggressive pursuit of investigation was not outrageous governmental conduct sufficient to overturn the conviction.

No Due Process violation in gov't destruction of tapes, as deft didn't establish bad faith or exculpatory value.

Non-residential burglaries are valid ACCA predicates. 

United States  v.  Roger Bugh