Review of US courts opinions for 14/11/2024

Morgan v. Garland / 24-01280 (2024-11-08)

This is a simple errata sheet issued by the United States Court of Appeals for the First Circuit in the case of Morgan v. Garland. The errata sheet makes a single technical correction to the Court’s opinion from November 5, 2024.The correction is straightforward and consists of replacing a single word in the original opinion. On page 28, line 18, the word ‘official’ is replaced with the phrase ‘nonofficial or private actor’.This modification appears to be significant for the precise meaning of the opinion as it changes the characterization of an actor from being an official entity to being a non-governmental or private party. The change could be particularly relevant for matters involving questions of state action versus private conduct.The key aspects of this errata are:

• The correction appears on page 28, line 18 of the original opinion
• The word ‘official’ is removed
• The replacement phrase is ‘nonofficial or private actor’
• The change represents a complete reversal in meaning regarding the type of actor being discussed

Morgan v. Garland / 24-01280 (2024-11-05)

This opinion addresses a petition for review filed by Akeish Johnioy Morgan, a Jamaican citizen who illegally entered the US in 2022 and sought various forms of relief from removal, including asylum and protection under the Convention Against Torture (CAT).The key aspects of the opinion are:

• The court upheld the denial of asylum and withholding of removal based on evidence that Morgan likely committed serious non-political crimes in Jamaica (murder and related charges)
• However, the court remanded the case regarding Morgan’s eligibility for CAT deferral of removal because the immigration judge applied an overly narrow definition of government ‘acquiescence’ to torture
• The court found that acquiescence to torture does not require active cooperation between police and perpetrators – police awareness and failure to prevent torture can be sufficient

The main provisions of the opinion are:

• Clarification that ‘serious reasons to believe’ an applicant committed crimes can be established through arrest warrants and police reports, even without detailed evidence of identification methods
• Explanation that government acquiescence to torture under CAT includes situations where officials are aware of torture and breach their duty to prevent it, even without active cooperation
• Direction that general country conditions evidence alone cannot establish eligibility for CAT protection without evidence of particularized risk

The most important aspects for application are:

• The standard for finding ‘serious reasons to believe’ criminal conduct does not require the same level of proof as a criminal conviction
• Government acquiescence to torture can be established through evidence of officials’ awareness and failure to act, not just active participation
• CAT protection requires evidence of particularized risk beyond general country conditions

Kress Stores of Puerto Rico, Inc., et al v. Wal-Mart Puerto Rico, Inc., et al / 23-01060 (2024-11-12)

This is a decision of the First Circuit Court of Appeals regarding unfair competition claims brought by local Puerto Rico merchants against major retailers (Wal-Mart and Costco) during the COVID-19 pandemic.The essence of the case is that local retailers sued Wal-Mart and Costco for allegedly violating Puerto Rico’s Governor’s executive orders by selling non-essential goods during a 72-day lockdown period in 2020 when most retailers were required to close. The plaintiffs claimed this constituted unfair competition and sought damages for lost sales.The key provisions of the opinion are:

• The court held that CAFA (Class Action Fairness Act) jurisdiction continues even after denial of class certification
• The court found that CAFA’s ‘home state’ exception did not apply because Costco was a non-local defendant
• The court ruled that CAFA’s ‘local controversy’ exception did apply because Wal-Mart Puerto Rico’s conduct formed a significant basis for the claims
• The court upheld the district court’s denial of Costco’s motion to sever the claims against it

The main changes compared to previous decisions are:

• This is the first time the First Circuit has addressed whether CAFA jurisdiction continues after denial of class certification
• The court provided new guidance on how to analyze CAFA’s ‘local controversy’ exception, particularly regarding what constitutes a ‘significant basis’ for claims

The most important provisions for use of this opinion are:

• The detailed analysis of when CAFA’s ‘local controversy’ exception applies, particularly the court’s rejection of requiring a ‘plus factor’ to show a local defendant’s conduct is significant
• The court’s holding that CAFA jurisdiction continues after denial of class certification
• The analysis of when claims arise from the ‘same transaction or occurrence’ for purposes of joinder under Federal Rule 20

J.V. & Sons Trucking, Inc. v. Asset Vision Logistics, LLC / 23-02190 (2024-11-12)

This is a procedural notice from the United States Court of Appeals for the Eighth Circuit informing counsel that the court has issued an opinion in the case of J.V. & Sons Trucking, Inc. v. Asset Vision Logistics, LLC (Case No. 23-2190).The notice outlines the post-submission procedures, specifically emphasizing that petitions for rehearing and petitions for rehearing en banc must be filed within 14 days of the judgment entry date. All counsel-filed petitions must be submitted electronically through the CM/ECF system.Key procedural requirements include:

• No paper copies are required for counsel-filed petitions
• No grace period for mailing is allowed (except as provided by FRAP 25(a)(2)(iii))
• Petitions received after the 14-day deadline may be denied as untimely
• All filings must comply with Federal Rules of Appellate Procedure and Eighth Circuit Rules

National Presto Ind., Inc. v. U.S. Merchants Fin. Grp., Inc. / 23-01493 (2024-11-12)

This appears to be a notice of opinion issuance from the United States Court of Appeals for the Eighth Circuit in the case National Presto Industries, Inc. v. U.S. Merchants Financial Group, Inc. (Case No. 23-1493). The document is a procedural notification rather than the actual opinion.The notice informs counsel that the court has issued its opinion and entered judgment in the case. It outlines the post-submission procedures, particularly emphasizing the 14-day deadline for filing petitions for rehearing or rehearing en banc. The document specifies that counsel-filed petitions must be submitted electronically through CM/ECF.Key procedural requirements highlighted in the notice include:

• Petitions must be received within 14 days of judgment entry
• Electronic filing is mandatory for counsel-filed petitions
• No grace period for mailing is allowed (except as provided by FRAP 25(a)(2)(iii))
• Late petitions may be denied as untimely

United States v. Marchello Oliver / 23-03513 (2024-11-12)

This is a procedural notice from the United States Court of Appeals for the Eighth Circuit, informing counsel that the court has issued an opinion in the consolidated cases of United States v. Ethan Driskill and United States v. Marchello Oliver.The notice outlines three key procedural requirements:

• Judgment has been entered in accordance with the court’s opinion
• Petitions for rehearing and petitions for rehearing en banc must be filed within 14 days of the judgment entry date
• All counsel-filed petitions must be submitted electronically through CM/ECF system

The document specifically emphasizes that there is no grace period for mailing (except as provided by FRAP 25(a)(2)(iii)), and any petition received after the 14-day deadline may be denied as untimely. The notice serves as a formal reminder of post-submission procedures and filing requirements under the Federal Rules of Appellate Procedure and Eighth Circuit Rules.

United States v. Ethan Driskill / 23-03162 (2024-11-12)

This is a procedural notice from the United States Court of Appeals for the Eighth Circuit, informing counsel that the court has issued an opinion in the consolidated cases of United States v. Ethan Driskill and United States v. Marchello Oliver.The notice outlines three key procedural aspects:

• The court has issued its opinion and entered judgment in these cases
• Any petitions for rehearing or rehearing en banc must be filed within 14 days of the judgment entry
• Counsel-filed petitions must be submitted electronically through CM/ECF system without paper copies

The document emphasizes strict compliance with the 14-day deadline for filing post-judgment petitions, specifically noting that there is no grace period for mailing as per Federal Rules of Appellate Procedure 25(a)(2)(iii). Late petitions may be denied solely based on untimeliness.

Douglas Brown v. Covestro LLC Welfare Benefits Plan, et al / 24-01043 (2024-11-12)

The case concerns a dispute over long-term disability benefits between Douglas Brown and Covestro LLC Welfare Benefits Plan. The Court of Appeals affirmed the District Court’s decision to deny Brown’s claim for long-term disability benefits after 18 months.The opinion’s structure follows three main parts:

• First, it outlines the factual background, including Brown’s employment as a millwright, his medical conditions, and the various medical reports submitted during the claims process.
• Second, it addresses the standard of review question, concluding that an abuse of discretion standard applies despite some procedural irregularities in the claims process.
• Third, it analyzes the substantive decision to deny benefits, finding substantial evidence supported the administrator’s determination that Brown was not totally disabled.

Key provisions of the opinion include:

• The Court confirmed that procedural irregularities in ERISA claims administration do not automatically trigger de novo review unless they are ‘severe violations’
• The 2018 ERISA regulations update requiring strict adherence to procedures does not change the standard of judicial review
• An administrator’s decision can be upheld despite procedural irregularities if there is abundant evidence supporting the denial of benefits
• Medical evidence showing capacity for sedentary work with reasonable accommodations is sufficient to support a finding that a claimant is not ‘totally disabled’ under the plan

Jean Mutarambirwa v. Township of West Orange, et al / 23-03009 (2024-11-12)

The opinion addresses a procedural matter in the case of Jean Bosco Mutarambirwa against Township of West Orange and other defendants regarding the denial of a preliminary injunction.The case originated from a New Jersey court’s restraining order against Mutarambirwa under the Prevention of Domestic Violence Act (PDVA), which prevented him from possessing firearms. Mutarambirwa filed a §1983 action claiming First and Second Amendment violations and sought a preliminary injunction.The key provisions of the opinion are:

• The District Court denied Mutarambirwa’s motion for preliminary injunction without prejudice
• Mutarambirwa filed a motion for reconsideration under Rule 59(e)
• The District Court denied the reconsideration motion without prejudice, allowing him to refile after the Supreme Court’s decision in United States v. Rahimi
• The Court of Appeals determined it lacks jurisdiction because denials ‘without prejudice’ do not constitute final, appealable orders

The most significant aspects of this opinion are:

• The Court’s emphasis that denials without prejudice are not final, appealable orders
• The Court’s clarification that it cannot exercise jurisdiction without a final order
• The recognition that even when reconsideration is denied while an appeal is pending, the order must be final to establish jurisdiction

In re: Khamraj Lall / 24-02538 (2024-11-12)

The opinion addresses a petition for a writ of mandamus filed by Khamraj Lall, who sought to compel the District Court to rule on his pending motion to vacate sentence under 28 U.S.C. § 2255 and motions for sentence reduction under 18 U.S.C. § 3582.The Court of Appeals denied the mandamus petition for the following reasons:

• Regarding the § 2255 motion: While the motion has been pending since October 2022, the delay does not constitute a failure to exercise jurisdiction. The District Court has been actively managing the case, addressing various motions, ordering supplemental briefing, and handling procedural matters.
• Regarding the motions to reduce sentence: These claims are moot as the District Court has already ruled on them – denying the first motion on August 3, 2023, the second and third identical motions on January 26, 2024, and the motion for reconsideration on May 9, 2024.

The Court emphasized that mandamus is an extraordinary remedy that should only be used in extraordinary situations. The Court noted that much of the delay in resolving the § 2255 motion was due to Lall’s own additional motions and the need for supplemental briefing. The Court expressed confidence that the District Court would rule on the pending matters without undue delay once the briefing is complete.

Erica Manuel-Soto, et al v. Attorney General United States of America / 24-01089 (2024-11-12)

The opinion addresses a case involving a Guatemalan family seeking asylum, withholding of removal, and Convention Against Torture protection in the United States. The Court of Appeals upheld the denial of all forms of relief.The Court’s analysis focuses on two main aspects:

• The proposed particular social groups for asylum purposes:
  • ‘Guatemalan small business owners, victims of extortion by gang members’ – rejected as lacking particularity and immutability
  • ‘Guatemalan women viewed as property and unable to escape their violent ex-partners’ – rejected as inapplicable to the petitioners
• The Convention Against Torture claim – rejected due to:
  • Threats and extortion not rising to the level of torture
  • Evidence showing Guatemalan government would not acquiesce to mistreatment

Key provisions of the opinion include:

• Small business owners generally do not constitute a cognizable particular social group for asylum purposes
• A particular social group must exist independently of the persecution suffered
• Government’s willingness and ability to protect citizens is crucial in asylum cases
• For Convention Against Torture claims, both the severity of mistreatment and government acquiescence must be proven

Donna Glaesener v. New York & New Jersey Port Authority, et al / 24-01007 (2024-11-12)

The opinion addresses a discrimination and retaliation case filed by Donna Glaesener, a black woman employee of the Port Authority Trans-Hudson Corporation, who claimed she was denied several promotions due to racial discrimination and in retaliation for her complaints about discrimination.The Court upheld the District Court’s summary judgment in favor of the Port Authority, finding no evidence of discrimination or retaliation in four separate promotion decisions made between 2018 and 2022. The Court applied the McDonnell Douglas burden-shifting framework to analyze both the discrimination and retaliation claims.Key provisions of the opinion include:

• For the Safety Manager position, the Court found the successful candidate had more relevant experience in regulatory work, budgeting, and emergency management.
• Regarding the Chief Operations Examiner position, the Court confirmed that interview performance is a legitimate basis for employment decisions when based on job-related questions and predetermined criteria.
• For the Principal Programs & Training Coordinator position, the Court found no evidence that the interviewers knew about Glaesener’s prior complaints, and the successful candidate was better qualified.
• In the Superintendent of Transportation case, the Court noted the significant difference in interview scores (44 vs. 18) and the plaintiff’s poor interview performance.

The Court emphasized that while job interviews are subjective, they are legitimate tools for candidate selection when they assess relevant criteria and are not entirely subjective. The opinion establishes that poor interview performance, when properly documented and based on job-related criteria, is a valid non-discriminatory reason for employment decisions.

VoteAmerica, et al v. Schwab, et al / 23-03100 (2024-11-12)

This is a detailed opinion from the U.S. Court of Appeals for the Tenth Circuit regarding restrictions on prefilling mail ballot applications in Kansas. Here are the key points:The case involves a challenge by VoteAmerica and Voter Participation Center (VPC) to a Kansas law that prohibits third parties from prefilling mail ballot applications before sending them to voters. The plaintiffs argued this violated their First Amendment rights to free speech and association.The Court’s main conclusions:

• The prefilled applications constitute speech protected by the First Amendment
• The law should be analyzed under intermediate scrutiny rather than strict scrutiny
• The law does not violate freedom of association rights
• The case is remanded to determine if the law passes intermediate scrutiny

The Court rejected several arguments from both sides:

• Rejected the state’s argument that prefilling applications was merely conduct, not speech
• Rejected plaintiffs’ argument that strict scrutiny was required under Meyer-Buckley framework
• Rejected plaintiffs’ overbreadth challenge
• Rejected plaintiffs’ argument that the law discriminated based on viewpoint

The Court determined that while the law is content-based, it is viewpoint-neutral and therefore subject to intermediate scrutiny rather than strict scrutiny. The case was remanded to the district court to apply intermediate scrutiny analysis, unless evidence shows the law was enacted with an improper purpose targeting pro-mail-voting speech.

Pagano v. Attorney General for the State of New Mexico, et al / 24-02157 (2024-11-12)

This is a brief dismissal order from the United States Court of Appeals for the Tenth Circuit in the case of Zacheriah Pagano v. Attorney General for the State of New Mexico and Warden George Stephenson. The court dismissed the appeal due to lack of prosecution under Tenth Circuit Rule 42.1.The order consists of a single operative provision dismissing the appeal for lack of prosecution, with a statement that the order itself shall serve as the court’s mandate. The case was originally filed in the District Court of New Mexico under case number 2:23-CV-00313-JB-LF.The key provision in this order is the dismissal for lack of prosecution, which means the appellant (Zacheriah Pagano) failed to take the necessary steps to pursue the appeal according to court rules and procedures. The order specifies that it will serve as its own mandate, meaning no separate mandate document will be issued to formally close the case.

Good v. United States Department of Education, et al / 22-03286 (2024-11-12)

This opinion addresses whether the Higher Education Loan Authority of the State of Missouri (MOHELA) is entitled to share in Missouri’s Eleventh Amendment immunity from suit as an ‘arm of the state.’ The court applies a two-step test from Hennessey v. University of Kansas Hospital Authority to determine MOHELA’s status.The first step examines four factors: (1) how state law characterizes the entity, (2) the entity’s autonomy, (3) the entity’s finances, and (4) whether it deals with state or local affairs. The court finds these factors point in different directions – factors 1 and 4 favor arm-of-state status while factors 2 and 3 weigh against it.Because the factors conflict, the court proceeds to step two – examining the twin goals of the Eleventh Amendment: protecting state dignity and the state treasury. The court concludes MOHELA is not an arm of the state because: (1) Missouri bears no legal liability for judgments against MOHELA, and (2) allowing suits against MOHELA would not clearly offend Missouri’s dignity given MOHELA’s operational and financial independence.The opinion reverses the district court’s dismissal of claims against both MOHELA and the Department of Education. For the Department, reversal was required by the Supreme Court’s recent Kirtz decision finding FCRA waived federal sovereign immunity. For MOHELA, reversal was required because it failed to establish arm-of-state status entitling it to Eleventh Amendment immunity.

BCB Cheyenne v. MineOne Wyoming Data Center, et al / 24-08048 (2024-10-16)

The opinion represents a court order dismissing an appeal in the case of BCB Cheyenne, LLC (d/b/a Bison Blockchain) versus MineOne Wyoming Data Center, LLC and other parties. The case was heard in the United States Court of Appeals for the Tenth Circuit.The order is straightforward and consists of two main parts: (1) the court’s consideration of the parties’ Joint and Stipulated Motion to Dismiss the Appeal, and (2) the court’s decision to grant the motion. The court specifically construed the parties’ joint motion as a motion for voluntary dismissal.The key provisions of the order are:

• The appeal is dismissed with prejudice
• Each party will bear its own costs and attorney fees
• The dismissal is granted under Federal Rule of Appellate Procedure 42(b) and 10th Circuit Rule 27.5(A)(9)
• The order itself serves as the mandate of the court

Brock v. Flowers Foods, et al / 23-01182 (2024-11-12)

Bennett v. US / 24-01242 (2024-11-12)

This opinion addresses an appeal by James and Pamela Bennett against the United States regarding compensation for a foreclosed property. The key aspects of the decision are:The Court of Appeals affirmed the lower court’s dismissal of the Bennetts’ claims for lack of subject matter jurisdiction. The Court found that the Bennetts failed to establish any valid basis for their claims against the government.The Court analyzed several key legal issues:

• 12 U.S.C. § 1818(b)(6)(A) is not a money-mandating statute that would require payments from the United States
• The Consent Order between the Office of the Comptroller of the Currency (OCC) and Bank of America explicitly states it is not a contract and creates no third-party beneficiary rights
• The Bennetts have no standing to enforce the Consent Order as they are neither parties to it nor third-party beneficiaries
• The Bennetts’ illegal exaction claim fails because they did not demonstrate that any statute requires return of money unlawfully taken by the government

The Court emphasized that while pro se litigants’ complaints are generally construed liberally, this does not extend to jurisdictional requirements. The Court found the Bennetts failed to identify any valid legal basis that would give the Court of Federal Claims jurisdiction over their claims.

Ronda Jones v. Steven Naert / 23-01056 (2024-11-12)

Michael Clark v. Ohio Security Ins Co / 23-06014 (2024-11-12)

The case concerns a dispute over insurance claim rights and procedural violations in court proceedings. The essence of the opinion is that Mike Clark, a building owner who assigned his insurance claim rights to P&G Construction Consultants, sued Ohio Security Insurance Company without disclosing this assignment. After the assignment was discovered, the court dismissed Clark’s suit and imposed sanctions on P&G and its agent for discovery violations.The opinion’s structure consists of three main parts:

• The dismissal of Clark’s suit because he was not the real party in interest after assigning his rights
• The sanctions imposed on P&G and Griffin for their failure to respond to discovery requests
• The award of attorney’s fees and costs to Ohio Security Insurance Company

The key provisions of the opinion are:

• The court upheld the dismissal of Clark’s suit as he was not the real party in interest after assigning his rights to P&G
• Ohio Security did not waive its real-party-in-interest defense as it raised it promptly after discovering the assignment
• The court confirmed sanctions against P&G and Griffin for discovery violations
• The court upheld the award of $98,582 in fees and $7,382.68 in costs to Ohio Security
• The appeals by Clark and P&G were largely unsuccessful due to procedural failures and forfeiture of arguments

Michael Clark v. Ohio Security Ins Co / 23-05808 (2024-11-12)

The case concerns a dispute over insurance claim rights and procedural violations in court proceedings. The essence of the opinion is that Mike Clark, a building owner who assigned his insurance claim rights to P&G Construction Consultants, sued Ohio Security Insurance Company without disclosing this assignment. After the assignment was discovered, the court dismissed Clark’s suit and imposed sanctions on P&G and its agent for discovery violations.The opinion’s structure consists of three main parts:

• The factual background describing Clark’s insurance claim, his assignment to P&G, and subsequent litigation
• The district court’s decision to dismiss the case because Clark was not the real party in interest
• The court’s imposition of sanctions and attorney’s fees on P&G and its agent for discovery misconduct

The key provisions of the opinion are:

• The court upheld the dismissal of Clark’s suit because he was not the real party in interest after assigning his rights to P&G
• Ohio Security did not waive its real-party-in-interest defense because it raised it promptly after discovering the assignment
• The court confirmed sanctions against P&G and its agent for failing to respond to discovery requests
• The appeals court found that P&G and its agent forfeited their right to challenge the sanctions by not properly appealing them
• The court upheld the attorney’s fees award because no timely objection was filed to the magistrate judge’s opinion

Nicholas Bullock v. Charlie Paris, et al / 24-10674 (2024-11-08)

This case involves an appeal by Nicholas Bullock against multiple Gilmer County officials regarding various claims related to his arrest, jail conditions, and tax assessment issues. The key aspects of the opinion are:1. The court affirmed the district court’s dismissal of claims against county officials in their official capacities based on Eleventh Amendment immunity, finding that certain officials like the Sheriff and Superior Court Clerk were acting as arms of the state.2. The court upheld dismissal of individual capacity claims against officials based on qualified immunity, finding no violations of clearly established constitutional rights and proper probable cause for Bullock’s arrest.3. The court confirmed that Superior Court Clerk Amy Johnson had quasi-judicial immunity for processing court filings as this was integrally related to the judicial process.The main provisions include:

• Confirmation that qualified immunity can be considered at motion to dismiss stage
• Clarification that Georgia superior court clerks are state officials for immunity purposes
• Affirmation that the Tax Injunction Act bars federal court jurisdiction over state tax assessment challenges
• Ruling that county officials had no authority over court personnel under Georgia law

The court ultimately affirmed the district court’s denial of preliminary injunction and dismissal of claims against all defendants, finding no viable constitutional violations or basis to overcome various immunity doctrines.

Alvin Boone, et al v. Illinois Department of Corrections, et al / 23-02727 (2024-11-12)

The opinion addresses a challenge to Public Act 102-667, an Illinois statute related to COVID-19 vaccination requirements and the Illinois Health Care Right of Conscience Act. The Court affirmed the dismissal of plaintiffs’ claims due to lack of Article III standing.The opinion is structured around two main parts: (1) the procedural history of the case, including the initial lawsuit in state court, its removal to federal court, and the passage of Public Act 102-667; and (2) the legal analysis focusing on the standing issue and the interpretation of the statute’s effect under Illinois law.Key provisions of the opinion include:

• Public Act 102-667 is determined to be a ‘declaration of existing law’ rather than a new enactment, as stated in the statute itself
• The Illinois Appellate Court’s determination that Public Act 102-667 has no independent legal effect is considered controlling
• Without any change in law effected by the statute, plaintiffs cannot establish an injury in fact that could be redressed, thus lacking Article III standing
• The Court affirmed dismissal rather than remand because the claims lacking standing were added after removal to federal court

Dwight Siples, Jr. v. BP Exploration & Production Inc., et al / 23-11539 (2024-10-18)

The opinion addresses appeals related to the Deepwater Horizon oil spill cleanup cases, specifically focusing on whether the district court properly excluded expert testimony about general causation in toxic tort claims.The key points of the decision are:

• The court affirmed the district court’s exclusion of expert testimony and summary judgment in favor of BP in cases where cleanup workers claimed their exposure to crude oil and dispersants caused chronic sinusitis.
• The court upheld that in toxic tort cases, plaintiffs must prove both general and specific causation by demonstrating the levels of exposure that are hazardous to humans generally.
• The experts failed to identify a minimal level of exposure at which crude oil, dispersants, or associated chemicals are hazardous to humans.

The main provisions of the opinion establish that:

• Expert testimony in toxic tort cases must identify harmful levels of exposure to alleged toxins
• Experts must properly analyze epidemiological evidence and apply Bradford Hill factors
• Experts must consider dose-response relationships and background risk of disease
• General causation requires showing that an agent increases disease incidence in a group, not just in specific individuals

The court emphasized that the district court did not abuse its discretion in excluding expert testimony that failed to meet these requirements, as the experts did not establish minimum harmful exposure levels or properly analyze scientific literature and causation factors.

Moussa Diarra v. Department of Motor Vehicles / 24-13115 (2024-11-12)

The United States Court of Appeals for the Eleventh Circuit dismissed an appeal filed by Moussa Diarra against the Department of Motor Vehicles due to lack of jurisdiction based on untimely filing of the notice of appeal.The opinion is structured around two key deadlines that the appellant failed to meet:- The first deadline of November 12, 2021, for appealing the district court’s October 13, 2021 judgment dismissing his complaint- The second deadline of May 22, 2024, for appealing the April 22, 2024 order denying his Rule 60 motionThe key provisions of this opinion are:1. The appellant filed notices of appeal in September 2024, well after both deadlines had passed2. The court noted that even applying the prison mailbox rule would not make the appeals timely3. Due to the untimely filing, the court could not exercise appellate jurisdiction over the case, citing Green v. Drug Enforcement Administration4. The court specified that any petition for rehearing must comply with 11th Circuit Rule 40-3 and other applicable rules

USA v. Tuong Ho / 24-01232 (2024-11-12)

The opinion concerns a criminal case involving Tuong Quoc Ho, who pleaded guilty to multiple counts of wire fraud, identity theft, and money laundering in connection with an international fraudulent scheme. The defendant attempted to appeal his 102-month prison sentence despite having an appeal waiver in his plea agreement.The court’s opinion primarily addresses two main aspects:

• The validity of Ho’s guilty plea and the district court’s compliance with Rule 11 requirements during the plea hearing
• The enforceability of the appeal waiver in Ho’s plea agreement

Key provisions of the opinion include:

• The court found that the district court properly followed Rule 11(b) requirements during the plea hearing, including adequately explaining the nature of charges and establishing a factual basis for the plea
• The court rejected Ho’s four specific arguments about alleged Rule 11(b)(1)(G) violations, finding that the district court’s explanations of charges were sufficient
• The court determined that the factual basis for the guilty plea was properly established through the plea agreement and Ho’s confirmation of the facts
• The appeal waiver in Ho’s plea agreement was found to be valid and enforceable, thus barring any challenges to his sentence

Alvin Boone, et al v. Illinois Department of Corrections, et al / 23-02630 (2024-11-12)

The opinion addresses a challenge to Public Act 102-667, an Illinois statute related to COVID-19 vaccination requirements and the Illinois Health Care Right of Conscience Act. The Court affirmed the dismissal of plaintiffs’ claims due to lack of Article III standing.The opinion’s structure consists of two main parts: (1) the procedural history and background of the case, including the passage of Public Act 102-667 and previous court decisions, and (2) the legal analysis of standing requirements and the effect of the statute under Illinois law.Key provisions of the opinion include:

• Public Act 102-667 was determined to be a ‘declaration of existing law’ rather than a new enactment, meaning it effected no change in Illinois law
• The Court relied on both the statute’s own language and an Illinois Appellate Court decision (Glass v. Dep’t of Corr.) confirming that the Act has no independent legal effect
• Without a change in law, plaintiffs could not demonstrate an injury in fact capable of being redressed, thus lacking Article III standing
• The Court determined that dismissal rather than remand was appropriate since the claims lacking standing were added after removal to federal court
• The Court granted leave to correct clerical errors in the district court’s judgment under Federal Rule of Civil Procedure 60(a)

US v. Miguel Hutchinson / 23-04282 (2024-11-12)

The case involves an appeal by Miguel Marquis Hutchinson regarding his convictions and sentence for firearm and drug-related offenses. The Court of Appeals affirmed his convictions but vacated the sentence and remanded for resentencing.The opinion addresses three main issues:

1. Motion to suppress evidence: The court upheld the district court’s decision not to hold an evidentiary hearing and to deny the motion to suppress. The key factor was that police officers smelled marijuana when approaching Hutchinson’s vehicle, which provided sufficient reasonable suspicion for the stop and search.
2. Prosecutor’s statements during closing arguments: The court found that while prosecutors generally shouldn’t discuss possible sentences, the statements made during closing arguments did not warrant reversal under the plain error standard.
3. Sentencing procedure: The court found that the district court committed procedural error by failing to provide any explanation for the 90-month sentence imposed, making meaningful appellate review impossible.

Key provisions of the opinion include:

• Marijuana odor emanating from a vehicle is sufficient to justify both reasonable suspicion for a Terry stop and probable cause for a vehicle search
• District courts must provide individualized assessment and adequate explanation of sentences to allow for meaningful appellate review
• A court’s complete failure to explain its sentencing decision constitutes procedural error that is not harmless when it prevents meaningful appellate review and undermines the perception of fair sentencing

William Pickard, III v. American Pride Properties LLC, et al / 23-13834 (2024-11-12)

This opinion addresses an appeal by William Pickard against the district court’s denial of his motion for a temporary restraining order (TRO) to prevent his eviction and the subsequent denial of his motion for reconsideration. The case involves underlying claims of discrimination under the Fair Housing Act and related legislation.The Court of Appeals affirmed the district court’s decisions based on procedural grounds. The key issue was that Pickard, as the appellant, failed to provide a complete record for review, specifically the transcript of the hearing where the district court explained its reasons for denying the TRO.The opinion outlines four essential elements required to establish entitlement to a TRO:

• Substantial likelihood of success on the merits
• Necessity to prevent irreparable injury
• The threatened injury must outweigh potential harm to the non-movant
• The TRO must serve the public interest

The Court emphasized that without the hearing transcript, it could not conduct a meaningful review of the district court’s reasoning. The Court noted that the burden of ensuring a complete record falls on the appellant, even when proceeding pro se, and the absence of crucial documentation typically results in affirmation of the lower court’s judgment.

Lester Eugene Jenkins v. BP Exploration & Production Inc., et al / 23-11538 (2024-10-18)

The opinion addresses appeals related to the Deepwater Horizon oil spill cleanup cases, specifically focusing on whether the district court properly excluded expert testimony about general causation in toxic tort claims.The key points of the decision are:

• The court affirmed the district court’s exclusion of expert testimony and summary judgment in favor of BP in cases where cleanup workers claimed their exposure to crude oil and dispersants caused chronic sinusitis.
• The court upheld that in toxic tort cases, plaintiffs must prove both general and specific causation by demonstrating the levels of exposure that are hazardous to humans generally.
• The experts failed to identify a minimal level of exposure at which crude oil, dispersants, or associated chemicals are hazardous to humans.

The main provisions of the opinion establish that:

• Expert testimony in toxic tort cases must identify harmful levels of exposure to alleged toxins
• Experts must properly analyze epidemiological evidence and apply Bradford Hill factors
• Experts must consider dose-response relationships and background risk of disease
• General causation requires scientific evidence of harmful exposure levels, not just evidence of specific causation

The court emphasized that the district court did not abuse its discretion in excluding expert testimony that failed to meet these requirements, as the experts did not provide reliable scientific evidence linking exposure to the claimed medical conditions.

In Re Deepwater Horizon Belo Cases v. Lester Jenkins, et al / 23-11535 (2024-10-18)

The case concerns the appeal of Lester Jenkins and Dwight Siples Jr. against BP regarding the exclusion of expert testimony about general causation in a suit related to the Deepwater Horizon oil spill cleanup. The plaintiffs claimed their exposure to crude oil and dispersants during cleanup caused chronic sinusitis.The United States Court of Appeals for the Eleventh Circuit affirmed the district court’s decision to exclude the expert testimony and grant summary judgment to BP. The court found that the experts failed to identify a minimal level of exposure at which crude oil, dispersants, or associated chemicals are hazardous to humans.The key provisions of the opinion include:

• In toxic tort cases where medical community does not recognize an agent as toxic, plaintiffs must establish both general and specific causation
• Experts must demonstrate levels of exposure that are hazardous to human beings generally
• The experts failed to identify statistically significant associations between chronic conditions and exposure to crude oil
• The experts did not adequately assess study limitations or meaningfully consider causal factors
• The experts’ analysis of Bradford Hill factors was cursory and superficial

The court emphasized that the district court did not abuse its discretion in excluding the expert testimony, as the experts failed to support their opinions with proper epidemiology, dose-response relationship, or background risk of disease analysis.

Tony Chaney v. Chicago Housing Authority / 24-01303 (2024-11-12)

The opinion addresses a case where Tony Chaney sued the Chicago Housing Authority (CHA) for failing to provide him a hearing after his eviction from a subsidized apartment. The court affirmed the district court’s dismissal of the case.The case revolves around three main elements:

• Chaney’s claim under 42 U.S.C. § 1983 alleging violations of the Fourteenth Amendment’s Due Process Clause and Chicago’s Residential Landlord and Tenant Ordinance
• The district court’s dismissal of the case for failing to state a claim under the Monell doctrine
• The requirement that municipal liability requires proof that harm was caused by a policy or custom demonstrating municipal fault

The key provisions of the opinion are:

• The court found that Chaney’s single incident of CHA failing to provide him an informal hearing was insufficient to allege a policy or custom under Monell
• The court confirmed that § 1983 does not provide relief for violations of state law
• To establish municipal liability, a plaintiff must demonstrate that the harm was caused by an express policy, a widespread practice with the force of policy, or a decision by a final policymaker

The dissenting opinion argued for remanding the case due to mixed signals given to Chaney by the district court regarding his ability to amend the complaint, particularly considering his pro se status and continued efforts to pursue his claims.

USA v. Andrew Newburg / 24-11354 (2024-11-12)

This opinion addresses a case where Andrew Newburg, a federal prisoner, appealed the denial of his motion to compel the government to file a U.S.S.G. § 5K1.1 motion for sentence reduction based on his substantial assistance to the government. The court affirmed the district court’s denial of the motion.The opinion outlines two distinct mechanisms for sentence reduction based on substantial assistance:

• U.S.S.G. § 5K1.1 – applies only at the time of original sentencing for pre-sentence assistance
• Rule 35(b) – applies only after sentencing for post-sentence assistance

The key provisions of the opinion are:

• The district court lacks authority to compel the government to file a § 5K1.1 motion after sentencing has occurred
• Rule 35(b) requires post-sentence substantial assistance, which was not present in this case as Newburg only cited pre-sentence cooperation
• The government has discretion whether to file substantial assistance motions, and courts can review this discretion only when there is evidence of unconstitutional motivation like racial or religious discrimination
• A defendant’s plea agreement provision that the government will ‘consider’ filing such motions does not create an obligation for the government to do so

The court emphasized the clear temporal distinction between § 5K1.1 and Rule 35(b), rejecting Newburg’s argument that Rule 35(b) could be used to compel a § 5K1.1 motion after sentencing. The opinion reinforces that these are separate and distinct authorities with different functions and timing requirements.

DUKE v. USA / 1:24-cv-00581 (2024-10-25)

This opinion addresses a tax refund case where plaintiff Timmy Lynn Duke sought refunds for 2018 and 2019 tax years, along with penalties against the IRS and attorney’s fees. The court dismissed the case for lack of jurisdiction.The key provisions of the opinion are:

• For the 2019 tax year claim – dismissed because Mr. Duke had already received his full refund plus interest
• For the 2018 tax year claim – dismissed because Mr. Duke failed to properly file an administrative claim with the IRS before filing suit, which is a jurisdictional requirement under 26 U.S.C. § 7422(a)
• The court lacks jurisdiction to issue penalties against the IRS
• Attorney’s fees and litigation costs cannot be awarded since Mr. Duke is not a prevailing party

The most important aspects of this opinion are:

• Reinforcement that taxpayers must first file an administrative claim with the IRS before bringing a refund suit in court
• Clarification that informal refund claims must be ‘perfected’ by later filing formal forms
• Confirmation that social security tax refund claims specifically require Form 843
• Reiteration that the Court of Federal Claims cannot award penalties against the IRS or attorney’s fees to non-prevailing parties

DOLLING v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:23-vv-00986 (2024-11-12)

This is a decision awarding damages in a vaccine injury compensation case. The petitioner, Garrett Dolling, was awarded $47,500.00 for pain and suffering following a shoulder injury related to vaccine administration (SIRVA) from a tetanus vaccination received on January 31, 2022.The decision follows a standard structure for vaccine injury cases:

• Initial petition filing on June 28, 2023
• Ruling on entitlement issued on August 19, 2024, finding petitioner entitled to compensation
• Respondent’s proffer of compensation on October 9, 2024
• Final decision awarding the proffered amount on October 10, 2024

The key provisions of the decision include:

• The compensation amount of $47,500.00 is specifically for pain and suffering under Section 15(a) of the Vaccine Act
• The award is to be paid as a lump sum in the form of a check payable to the petitioner
• Both parties agreed to the proffered amount
• The decision is final and judgment can be expedited if parties renounce their right to seek review

DOLLING v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:23-vv-00986 (2024-09-20)

This is a ruling on entitlement in a vaccine injury compensation case where Garrett Dolling claimed he suffered a shoulder injury related to vaccine administration (SIRVA) following a Tdap vaccination received on January 31, 2022. The case was filed under the National Vaccine Injury Compensation Program.The ruling is structured in two main parts: (1) the initial claim presentation and (2) the respondent’s concession. The ruling confirms that the petitioner meets all the required criteria for SIRVA under the Vaccine Injury Table, including:

• No prior history of shoulder pain or dysfunction
• Pain occurrence within 48 hours after vaccination
• Pain limited to the vaccinated shoulder
• No other condition explaining the shoulder pain

The key provisions of the ruling are:

• The confirmation that the petitioner’s injury meets the definition of SIRVA under the Vaccine Injury Table
• The respondent’s concession that all legal prerequisites for compensation have been satisfied
• The Chief Special Master’s finding that the petitioner is entitled to compensation

GRUSZKA v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:18-vv-01736 (2024-11-12)

This is a decision on attorneys’ fees and costs in a vaccine injury case that was ultimately dismissed. The petitioner requested a total of $143,091.38 in attorneys’ fees and costs, including compensation for an expert witness, Dr. Srikumaran, at a rate of $1,000 per hour.The decision primarily focuses on determining the reasonableness of Dr. Srikumaran’s hourly rate of $1,000, which is higher than traditionally awarded in vaccine program cases. The Special Master analyzed recent precedents (Aycock and other cases) where this rate was approved, and evidence of market rates for orthopedic experts showing that $1,000 per hour is slightly below the average rate for top-tier experts ($1,068 per hour).The Special Master concluded that while Dr. Srikumaran’s high hourly rate requires scrutiny in each case, it should not be automatically reduced in dismissed cases. The fact that his opinion was not persuasive in this case was primarily due to factual findings made after his report was prepared, rather than the quality of his work. The Special Master found all requested fees and costs reasonable and granted the full amount requested.Key provisions of the decision include:

• Expert rates should be evaluated on a case-by-case basis considering qualifications, market rates, and the actual work performed
• High expert rates may be justified if supported by market evidence and expert credentials
• The dismissal of a case does not automatically warrant reduction of expert fees if the expert’s work was reasonable when performed
• Total fees and costs may be higher than typical when additional work (like travel for hearings and extensive briefing) is required

GRUSZKA v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:18-vv-01736 (2023-03-21)

This decision concerns a case where petitioner Joyce Gruszka claimed that her influenza vaccination on August 18, 2017 caused a shoulder injury (SIRVA). The key points of the decision are:1. The petitioner claimed her flu shot caused shoulder pain and limited range of motion, but the Special Master found there was not sufficient evidence that the pain began within 48 hours of vaccination as required for a Table SIRVA injury claim.2. The decision analyzed whether the vaccination could have caused the shoulder injury through other mechanisms (causation-in-fact) or significantly aggravated a pre-existing condition. The Special Master found the evidence did not support either theory because:

• Medical records showed petitioner had prior shoulder pain and degenerative conditions
• The onset of new pain was gradual and indeterminate, occurring sometime between late August and early October 2017
• Petitioner did not initially report shoulder pain as vaccine-related to care providers
• Expert opinions relied on assumptions about onset timing that were not supported by the evidence

3. The Special Master concluded that petitioner failed to prove her case under the legal standards for vaccine injury compensation and dismissed the petition. The decision was based on detailed analysis of medical records, expert testimony, and the scientific literature regarding post-vaccination shoulder injuries.

GRUSZKA v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:18-vv-01736 (2022-08-01)

This is a finding of fact in a vaccine injury case where the petitioner (Joyce Gruszka) alleged that she suffered a left Shoulder Injury Related to Vaccine Administration (SIRVA) following an influenza vaccination on August 18, 2017. The key issue was whether the petitioner experienced onset of new or significantly aggravated left shoulder pain within 48 hours of vaccination, which is required to establish vaccine causation. After reviewing medical records, expert opinions, and testimony, the Special Master concluded there was not preponderant evidence that onset occurred within 48 hours based on:

• Petitioner had three orthopedic visits after vaccination where shoulder pain was not reported
• Medical records did not explicitly place onset within 48 hours
• Most medical encounters did not identify vaccination as relevant
• Several records indicated onset periods incompatible with petitioner’s claim
• Petitioner reported prior similar shoulder pain and described onset as gradual rather than sudden

The Special Master found that the evidence showed petitioner had prior episodes of left shoulder pain and experienced a gradual onset of similar pain sometime between late August and early October 2017, but could not establish that it began within 48 hours of vaccination as alleged.

RBVETCO, LLC v. USA / 1:24-cv-00357 (2024-11-12)

The opinion addresses a motion for attorney’s fees filed by RBVETCO, LLC (RBCG) after losing a bid protest case against the United States. The plaintiff requested attorney’s fees despite being the losing party, arguing that the VA’s corrective action during the proceedings justified the award.The Court’s opinion consists of three main parts:

• Background of the case, where the Court explains that it previously ruled in favor of the United States and Intervenor-Defendant, finding that the VA reasonably reviewed proposals and properly determined its award decision.
• Analysis of the plaintiff’s arguments regarding the Tucker Act interpretation and the Court’s authority to award attorney’s fees.
• The Court’s conclusion denying the motion based on established Supreme Court precedent and interpretation of relevant rules.

The key provisions of the opinion are:

• The Court rejects the broad interpretation of the Tucker Act (28 U.S.C. § 1491(b)(2)) proposed by the plaintiff, stating it does not grant authority to award attorney’s fees in these circumstances.
• The Court emphasizes that Supreme Court precedent (Ruckelshaus v. Sierra Club) clearly establishes that a losing party cannot receive attorney’s fees.
• The Court clarifies that while it may award attorney’s fees outside of EAJA in certain situations (such as by parties’ agreement or as sanctions), none of these exceptions apply to awarding fees to a losing party.
• The Court declines to issue a nonbinding recommendation for partial attorney’s fees, considering it an unproductive academic exercise.

RBVETCO, LLC v. USA / 1:24-cv-00357 (2024-07-22)

This opinion addresses a bid protest concerning whether the Department of Veterans Affairs (VA) properly awarded a contract to PerformanceEPC-Greenland JV (PGJV) for renovation of a boiler plant. The key issues were whether the VA properly evaluated PGJV’s past performance and experience under federal regulations governing mentor-protégé joint ventures.The Court analyzed two main provisions:

• 13 C.F.R. § 125.8(e) – Requires agencies to consider work done by each joint venture partner individually as well as work done by the joint venture itself
• 13 C.F.R. § 125.8(c) – Governs performance requirements for mentor-protégé joint ventures

The Court found that the VA properly evaluated PGJV’s proposal by:

• Considering both the mentor’s (Greenland) and protégé’s (PEPC) past performance and experience
• Reasonably determining that PGJV demonstrated capability to perform the required work
• Following proper procedures in documenting its evaluation and award decision

The Court denied the protest and upheld the VA’s award to PGJV, finding the agency’s evaluation was reasonable and complied with applicable regulations. The Court also addressed several procedural motions regarding the administrative record.

GOODWIN v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:19-vv-00503 (2024-11-12)

This is a decision of the U.S. Court of Federal Claims reviewing a special master’s denial of compensation under the National Vaccine Injury Compensation Program. The case involves a petitioner who claimed that an HPV vaccine caused him to develop transverse myelitis 68 days after vaccination.The Court found that the special master’s decision was insufficient because it did not adequately explain the reasoning for denying the petitioner’s claim. The special master had rejected the petition based on the third prong of the Althen test (requiring proof of a medically acceptable temporal relationship between vaccination and injury), but failed to provide sufficient analysis and explanation of the evidence.The key issues identified by the Court include:

• The special master’s discussion of expert testimony was too brief and conclusory
• The analysis of key medical studies (Menge, Agmon-Levin, Pidcock, De Goede, and Baxter) lacked clear reasoning about their significance
• The special master failed to adequately explain why a 68-day onset period was medically unacceptable

The Court remanded the case back to the special master with instructions to issue a new decision within 90 days that provides a more thorough and reasoned explanation for the conclusions reached.

GOODWIN v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:19-vv-00503 (2024-05-07)

This is a decision denying compensation in a vaccine injury case where Trenton Goodwin claimed that a human papillomavirus (HPV) vaccine caused his transverse myelitis.The key issue was whether the 68-day interval between vaccination and onset of symptoms was medically appropriate to establish causation. The court found this timing exceeded the acceptable timeframe based on medical evidence.The decision’s main provisions include:

• Analysis of the appropriate timing between vaccination and onset of symptoms, with most medical literature supporting a 42-day maximum window
• Review of key medical studies (Menge, Agmon-Levin, Pidcock, De Goede, Baxter) regarding timing of post-vaccination neurological symptoms
• Discussion of the burden of proof requiring petitioner to establish timing by preponderant evidence
• Conclusion that 68 days exceeded medically acceptable timeframe for inferring causation

The court emphasized that while there is some flexibility in timing, it cannot be unlimited, and petitioner failed to provide sufficient evidence supporting causation with a 68-day interval. The claim was denied based on failure to meet the timing requirement.

HENLEY et al v. USA / 1:22-cv-01716 (2024-11-07)

This opinion addresses a dispute over property rights related to a railroad corridor in Missouri. The key issue is whether certain historical deeds from the late 19th/early 20th centuries conveyed easements or fee simple title to a railroad company.The Court analyzed two groups of deeds:1. Deeds containing “right of way” language (Evert, Siese, Fink, and Osborn deeds): The Court found these conveyed fee simple title because:

• The “right of way” language was merely descriptive of location rather than limiting the interest
• The deeds contained significant monetary consideration
• They had no express language limiting use to railroad purposes

2. Deeds with nominal consideration (Crowe and Spradling deeds): The Court found these conveyed only easements because:

• They provided only $1 consideration plus “building, maintaining and operating a railroad”
• Under Missouri law, nominal consideration results in only an easement to railroads
• The promise to build/operate a railroad does not constitute valuable consideration

Based on this analysis, the Court dismissed claims based on the first group of deeds but allowed claims based on the second group to proceed.

COONS v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:20-vv-01067 (2024-11-12)

This is a decision awarding damages in a vaccine injury case where Kristen Coons developed small fiber neuropathy after receiving a tetanus diphtheria toxoid (Td) vaccine. The Special Master found that the petitioner provided sufficient evidence linking her neurological condition to the vaccine.The decision outlines the compensation award based on a proffer (formal offer) from the respondent (Secretary of Health and Human Services) that was agreed to by the petitioner. The award consists of three main components:

• $130,000.00 for pain and suffering
• $14,055.08 for past and future lost earnings
• $572.02 for past unreimbursable expenses

The total compensation awarded is $144,627.10, to be paid as a lump sum to the petitioner. The decision notes that this amount represents all elements of compensation to which the petitioner is entitled under the Vaccine Act. The award will be processed through a check payable directly to the petitioner, as she is a competent adult and no guardianship evidence is required.

COONS v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:20-vv-01067 (2024-04-23)

COONS v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:20-vv-01067 (2022-06-24)

This is a decision on interim attorneys’ fees and costs in a vaccine injury case. The key points are:1. The petitioner filed a claim alleging that a tetanus-diphtheria (Td) vaccine caused her to develop a severe neurological injury/small fiber neuropathy. The case is still pending on the merits.2. The decision analyzes whether the petitioner’s claim was brought in good faith and with reasonable basis to justify awarding interim attorneys’ fees and costs. The special master found both requirements were met based on the medical records and expert opinions submitted.3. The special master awarded $50,757.37 in interim attorneys’ fees and costs after reviewing the reasonableness of the requested hourly rates and time billed. This included minor reductions for excessive paralegal billing and an expert invoice discrepancy.The key provisions include:

• Finding the petition was brought in good faith and with reasonable basis
• Approving hourly rates of $385-415 for lead counsel and $275-325 for associate counsel
• Allowing expert fees of $400-500 per hour for the medical experts
• Making small reductions for excessive paralegal time and an expert billing discrepancy
• Awarding a total of $50,757.37 in interim fees and costs

BRUST v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:21-vv-01300 (2024-11-12)

This is a decision on attorney’s fees and costs in a vaccine injury compensation case. The Court granted a total award of $32,812.41, consisting of $31,996.80 in attorney’s fees and $815.61 in costs, to be paid jointly to the Petitioner (Lori Brust) and her legal counsel, Shannon Law Group, P.C.The case originated from a petition filed on April 30, 2021, where the Petitioner claimed a shoulder injury related to an influenza vaccination received on October 6, 2020. The underlying case was resolved on June 18, 2024, with a compensation award based on the Respondent’s proffer.The Court’s analysis of the attorney’s fees request was straightforward. The Chief Special Master found the requested hours, rates, and costs to be reasonable based on his experience and the documentation provided. The Respondent (Secretary of Health and Human Services) raised no specific objections to the amounts sought, though deferred to the Court’s discretion on the appropriate amount.Key provisions of the decision include:

• The total award amount of $32,812.41 was deemed reasonable and granted in full
• The Petitioner incurred no personal out-of-pocket expenses
• All claimed costs were properly supported by documentation
• The award is to be paid as a lump sum in the form of a check jointly payable to the Petitioner and her counsel

BRUST v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:21-vv-01300 (2024-07-23)

This is a decision awarding damages in a vaccine injury compensation case under the National Vaccine Injury Compensation Program. The petitioner, Lori Brust, was awarded compensation for a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccination received on October 6, 2020.The decision outlines the compensation structure awarded to the petitioner, which consists of two main components:

• $65,000.00 for pain and suffering
• $1,469.04 for past unreimbursed expenses

The total compensation awarded amounts to $66,469.04, to be paid as a lump sum in the form of a check payable to the petitioner. The decision confirms that this amount represents all damages available under Section 15(a) of the Vaccine Act. The ruling was made by Chief Special Master Corcoran after the respondent (Secretary of Health and Human Services) filed a proffer on award of compensation, with which the petitioner agreed.Key provisions of the decision include:

• The compensation is final and represents all elements of compensation under 42 U.S.C. § 300aa-15(a)
• No guardianship evidence was required as the petitioner is a competent adult
• The judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review

BRUST v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:21-vv-01300 (2024-07-08)

This is a ruling on entitlement in a vaccine injury compensation case where Lori Brust claimed she suffered a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccination received on October 6, 2020. The Department of Health and Human Services has conceded that the petitioner is entitled to compensation.The ruling is structured in two main parts: first, presenting the initial claim and its circumstances, and second, addressing the respondent’s concession and the final decision. The respondent acknowledged that the petitioner’s injury meets all the criteria for SIRVA as defined by the Vaccine Injury Table.The key provisions of the ruling include:

• The petitioner had no prior history of pain in her left shoulder before vaccination
• Pain occurred within 48 hours after receiving the intramuscular vaccination
• The pain was limited to the shoulder where the vaccine was administered
• No other condition was identified that could explain the shoulder pain
• The petitioner has satisfied all legal prerequisites for compensation under the National Vaccine Injury Compensation Program

ARDON v. USA / 1:22-cv-00562 (2024-11-12)

This opinion addresses a motion for conditional certification of a collective action under the Fair Labor Standards Act (FLSA) filed by a correctional officer seeking compensation for unpaid pre- and post-shift work at federal prison facilities.The Court granted conditional certification for a nationwide collective action of mobile patrol officers who allege they were not compensated for three specific activities: (1) walking to and from their post, (2) conducting pre/post-shift briefings, and (3) exchanging equipment between incoming and outgoing officers. The Court found sufficient evidence that these officers were similarly situated based on common practices across facilities regarding shift changes and equipment exchanges.Key provisions of the opinion include:

• The Court adopted a ‘materiality’ standard for determining whether officers are similarly situated, focusing on whether their claims share common issues that can be resolved collectively
• The Court found that while specific procedures may vary between facilities, there was enough evidence of common practices regarding uncompensated shift-change activities to justify conditional certification
• The Court ordered the parties to revise the proposed notice to potential plaintiffs to better describe the allegations and clarify the Court’s neutral role
• The Court approved multiple methods for distributing notice including email, text, mail and facility postings, with a 60-day opt-in period

The opinion establishes detailed requirements for notifying potential plaintiffs while maintaining judicial neutrality and avoiding any appearance of endorsing the merits of the claims. The Court emphasized that conditional certification does not amount to class certification and only allows similarly situated individuals to opt into the collective action.

MONTEVIDEO v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:24-vv-00211 (2024-11-12)

This is an Order Concluding Proceedings in a vaccine injury compensation case where petitioner Leah Montevideo sought compensation for alleged injuries following a human papillomavirus (HPV) vaccination received on April 6, 2023.The Order reflects a procedural conclusion of the case based on the petitioner’s decision to withdraw her petition under 42 U.S.C. § 300aa-21(b). This withdrawal occurred after no decision was issued within the timeframe specified in Vaccine Rule 10(b), which gave the petitioner the option to either withdraw or continue with the proceedings.The key provisions of the Order are:

• The petitioner’s request to withdraw the petition is granted
• The proceedings ‘on the merits’ are concluded
• No judgment ‘on the merits’ should be entered by the Clerk’s Office
• The Order must be made publicly accessible due to E-Government Act requirements
• The petitioner has 14 days to request redaction of private medical information

DATTE v. SECRETARY OF HEALTH AND HUMAN SERVICES / 1:18-vv-00002 (2024-11-12)

This is a decision by Special Master Horner regarding the award of interim attorneys’ fees and costs in a vaccine injury case. The petitioner requested $298,808.65 in interim fees and costs, but was awarded a reduced amount of $277,209.30.The decision outlines the following key structural elements:

• The procedural history of the case, which began in January 2018 when petitioner claimed that a pneumococcal conjugate vaccination caused Guillain Barré Syndrome
• The legal framework for awarding interim attorneys’ fees and costs under the Vaccine Act
• The analysis of reasonableness of the requested fees and costs
• The reduction of fees by $21,599.35 due to unreasonable involvement of a second attorney

The most significant provisions of this decision are:

• The court found that interim fees were appropriate due to the protracted nature of proceedings and substantial costs incurred
• The hourly rates requested were deemed reasonable and consistent with prior cases
• The total amount requested was considered high compared to similar Prevnar/GBS cases
• The involvement of multiple attorneys was found inefficient and unnecessary, leading to reduction in fees
• The requested costs were found reasonable and adequately documented