Short Form: 3/11

Second Circuit:

United States of America v. Foreste -- 4A: Successive investigatory stops should be considered together where the probable cause for the stop and the basis for extending the stop are the same.  Where the reason for extending the duration of the stop is different (as here), they may be considered separately;  field performance reports of canine units are relevant and susceptible to discovery requests.

Stryker v. Securities and Exchange Commission -- Administrative Law: Chevron deference to SEC holding that a pre-statute tip is ineligible for a reward under the statute.  Alternative holding: statute not ambiguous.  

Rivas v. Fischer -- Habeas ordered on remand, as no reasonable finder of fact could determine that counsel was not ineffective.


Third Circuit:

Ashley McMaster v. Eastern Armored Services Inc -- FLSA -- Employee is subject to the Act and therefore eligible for overtime, as she is within the small-truck correction to the truck driver carve-out in the Act.

Fourth Circuit:

Fraternal Order of Police v. WMATA -- Subsequent unrelated dismissal of employee ordered reinstated by arbitration does not violate the arbitration order; Grievances should first be addressed by the mechanism in the collective bargaining agreement.

Alfredo Prieto v. Harold Clarke  --  Due Process: Prisoner does not have liberty interest sufficient to challenge harsh and atypical conditions on "Death Row," as there is no valid expectation of avoiding these conditions when sentenced for a capital crime.


Sixth Circuit:

USA v. Manuel Soto 

 USA v. Hector Santana 

 USA v. Christopher Espinoza

USA v. Juan Respardo-Ramirez


Seventh Circuit:


Scott Reeder v.  Michael Madigan


Saley Souley v. Eric Holder, Jr.


Eighth Circuit (Summaries from Court):

131748P.pdf  03/11/2015  United States  v.  Arthur Chappell
   U.S. Court of Appeals Case No:   13-1748
   U.S. District Court for the District of Minnesota - St. Paul   
   [PUBLISHED] [Riley, Author, with Smith and Shepherd, Circuit Judges] 
   Criminal case - Criminal law. For the court's prior opinion remanding the 
   case for a new trial based on an error in the jury instructions, see U.S. 
   v. Chappell, 665 F.3d 1012 (8th Cir. 2012). On remand, the district court 
   did not abuse its discretion by denying defendant's motion to reopen the 
   record on the issue of probable cause for defendant's arrest; police had 
   probable cause to arrest defendant even if the issue were reopened; claim 
   of vindictive prosecution rejected, as the new charges added after remand 
   concern different criminal acts against mostly difference victims. 

141619P.pdf  03/11/2015  St. Jude Medical S.C., Inc.  v.  Thomas Tormey, Jr.
   U.S. Court of Appeals Case No:   14-1619
   U.S. District Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Bye, Author, with Riley, Chief Judge, and Wollman, Circuit 
   Judge] 
   Civil case - Contracts. Because plaintiff failed to present evidence that 
   a claimed "walk-away"agreement releasing him from liability to repay a 
   loan was in writing as required by Minn. Stat. Sec. 513.33, the district 
   court did not err in granting defendant judgment as a matter of law on 
   this defense or on its collection claim; plaintiff's counterclaims were 
   time-barred; plaintiff failed to object under Fed. R. Civ. P. 72(a)to the 
   magistrate's order denying certain of his discovery requests, and the 
   court was without jurisdiction to review the issue. 




Ninth Circuit:


CPR FOR SKID ROW V. CITY OF LOS ANGELES


AIRCRAFT SERVICE INT'L V. WORKING WASHINGTON


MARGARET RUDIN V. CAROLYN MYLES


NRDC V. USEPA


CHRIS TAYLOR V. JOHN CHIANG



Federal Circuit:


AMERGEN ENERGY COMPANY, LLC v. US 



DC Circuit:




Stone & Webster, Inc. v. Georgia Power Company


Airlines for America v. TSA


Meina Xie v. John Kerry

Eleventh Circuit -- Miccosukee Tribe of Indians of Florida v. USA, et al.

Complaint sub-Iqbal in clarity, but can be sufficiently assessed for appellate review.

Easements outside of trial record cannot be basis for claim of improper regulatory action.

Corps cannot take tribal interests in land without Due Process.

Due Process claim dispositively marred by vagueness, ambiguity, citing of wrong Amendment.


Miccosukee Tribe of Indians of Florida v. USA, et al.

Ninth Circuit -- RAFAEL GONZALEZ V. CITY OF ANAHEIM

Fatal shooting was not an exercise of excessive force / DP deprivation, as officers were justified in the use of physical force to that point in the encounter, and the decedent was attempting to drive off with an officer in the passenger seat.

Dissent: At 3 to 6 miles per hour.

RAFAEL GONZALEZ V. CITY OF ANAHEIM

Third Circuit -- National Amusements Inc v. Borough of Palmyra

No pre-closing notification was needed under procedural Due Process to close the market, given the discovery of unexploded munitions.

Closing market did not require compensation under Takings Clause, as it was a core public safety function.

Even given a low probability of harm from the explosives, the standard of review under state statute's arbitrary and capricious analysis is whether a reasonable finder of fact could conclude that closure was necessary.

Although the market eventually won right to reopen, since S1983 claims were denied on the merits, no award of interim fees.

National Amusements Inc v. Borough of Palmyra

Second Circuit -- Edelhertz v. City of Middletown

Short per curiam -- zoning change with minimal notification didn't offend Due Process, as it was prospective in nature and generally applicable.

Edelhertz v. City of Middletown

First Circuit -- Senra v. Smithfield, RI

Post-termination arbitration satisfied Due Process, as it addressed cause for firing; Constitutional and statutory violations can be beyond the scope of arbitration.

No Due Process right to the stated grievance procedures.

State statutory claims denied.

Special concurrence/ Concurrence in part: State law quibble.

 Senra v. Smithfield, RI 

Fifth Circuit -- RBIII, L.P. v. City of San Antonio

City's decision to demolish structure before providing notice to owners is entitled to deference and not subject to challenge unless arbitrary or an abuse of discretion.

Reversal for jury instructions that focused on the accuracy of the City's decision and not it reasonableness.

RBIII, L.P. v. City of San Antonio

First Circuit -- Rocket Learning, Inc. v. Rivera-Sanchez

Qualified immunity for gov't official who issued standards for education providers.

Insufficient proof of bad faith for equal protection challenge to allegedly discriminatory rulemaking.

Relevant certification is not a license, so insufficient property interest for a procedural due process claim.

No commercial free speech claim based on providers' inability to sufficiently tout their products.

Rocket Learning, Inc. v. Rivera-Sanchez 

Second Circuit -- JS v. T’Kach

Termination from witness protection program can't be challenged statutorily, given jurisdiction-strip --  doesn't state a claim for procedural due process either.  Error to dismiss without allowing leave to replead claims based on subsequent incidental confinement.

Concurrence in J:  The lack of a judicial remedy is troubling,.

JS v. T’Kach

Seventh Circuit -- Shun Warren v. Michael Baenen

Denial of Habeas for plea-stage ineffective assistance.

Due process claims on knowingness of plea speculative.

No DP violation in sentencing judge's citation of attempt to withdraw from plea as a basis for sentence length.

Shun Warren v.   Michael Baenen

Sixth Circuit -- Glendle Cain, III v. Owensboro Public Schools

Under Kentucky law, revocation of out-of-District status is tantamount to expulsion, triggering DP.  Deference to Kentucky AG's written opinion.

General knowledge of student's drug use insufficient for search of cell phone for text messages.

Mental health issues insufficient showing for Rehabilitation Act claim.

Glendle Cain, III v. Owensboro Public Schools 

Sixth Circuit -- Tonia Wright v. Kathryn O'Day

Minor has standing to make procedural due process challenge to placement on offender registry, as harm happens with the listing and the question is ripe.

Tonia Wright v. Kathryn O'Day 

Third Circuit -- Travis Denny v. Paul Schultz

Where there is some evidence leading to a theory of constructive possession, imposing disciplinary measures on an inmate doesn't violate Due Process.

Travis Denny v. Paul Schultz

Third Circuit -- Jose Tellado v. Indymac Mtg Ser

Claim against lender in receivership barred -- FDIC beyond reach of statute, administrative appeals not exhausted.

Penalty Order could survive the lack of subject matter jurisdiction, but insufficient due process here.

Jose Tellado v. Indymac Mtg Ser

Sixth Circuit -- U.S. Citizens Association v. Kathleen Sebelius

Standing for interlocutory appeal on health care reform, District Court correctly held that there was no interest in expressive/intimate association with physicians; no liberty/privacy interest.

U.S. Citizens Association v. Kathleen Sebelius 

Sixth Circuit -- 600 Marshall Entertainment v. The City of Memphis

Challenge to adult dancing -- no prior restraint, not vague, no procedural DP, but the there is standing to challenge the underlying statute although the zoning ordinance is the proximate bar to the conduct.

600 Marshall Entertainment v. The City of Memphis 

Third Circuit -- Randy Mulholland v. Government County of Berks

Rogue caseworker doesn't make county liable under S1983.  Procedural & Substantive DP claims.

Randy Mulholland v. Government County of Berks

Sixth Circuit -- USA v. Bryan Ross

Given prior abuse of attorney process and prior colloquy, trial court correctly allowed deft to proceed pro se after minimal colloquy.

Deft has a constitutional, non-waiveable right to counsel at competency hearing, even where court has legitimately allowed him or her to proceed pro se to that point.

Standby counsel did not provide meaningful adversarial testing of the case against deft.

As competency hearing is a critical stage, vacation and reversal is required for denial of counsel.

No abuse of discretion in allowing polygraph agreement into evidence.

No Speedy Trial Act claim, as not in bad faith.

No abuse of process in denial of subpoena

A few other things, including a 

Dissent.



USA v. Bryan Ross

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. 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