eBriefs May 29, 2019



U.S. Supreme Court

Civil Procedure

Neither 28 U.S.C. §1441(a) nor §1453(b) of the Class Action Fairness Act will permit removal by a third-party counterclaim defendant.

Home Depot U.S.A., Inc. v. Jackson; filed May 28, 2019


Cite as 2019 S.O.S. 17-1471


Constitutional Law

A plaintiff’s retaliatory arrest claim fails as a matter of law where police officers had probable cause to arrest him.

Nieves v. Bartlett; filed May 28, 2019


Cite as 2019 S.O.S. 17-1174


Constitutional Law

A state has a legitimate interest in proper disposal of fetal remains and this provides a permissible basis for regulation of fetal remains; and Indiana state law preventing incineration of fetal remains and authorizing simultaneous cremation passes rational basis review.

Box v. Planned Parenthood of Indiana and Kentucky, Inc.; filed May 28, 2019


Cite as 2019 S.O.S. 18-483


Social Security Law

An Appeals Council dismissal on timeliness grounds after a claimant has had an administrative law judge hearing on the merits qualifies as a “final decision … made after a hearing” for purposes of allowing judicial review under 42 U.S.C. §405(g).

Smith v. Berryhill; filed May 28, 2019


Cite as 2019 S.O.S. 17-1606


Ninth U.S. Circuit Court of Appeals

Criminal Law and Procedure

The Assimilative Crimes Act applies to Indian country, by operation of both 18 U.S.C. §7 and the Indian Country Crimes Act; when invoked in Indian country, the ACA is subject to the exceptions set forth in the ICCA, but the Indian-on-Indian exception in the ICCA does not preclude application of the ACA to all “victimless” crimes. The Major Crimes Act does not preclude the government from prosecuting any “state crimes” in Indian country that are not listed in the act.

United States v. Smith; filed May 28, 2019


Cite as 2019 S.O.S. 17-30248


California Court of Appeal

Criminal Law and Procedure

Courts have the power to pass on the constitutionality or validity of parole conditions and may require their modification; a parole condition restricting a defendant from contacting the “crime victim(s),” identified as “Lisa H.” or “Brent M.” was unconstitutionally vague as written since Lisa H. was never a protected party.

People v. Austin; Fourth District, Div. One; filed May 3, 2019, publication ordered May 24, 2019


Cite as 2019 S.O.S. 2482


Criminal Law and Procedure

Sufficient evidence did not support a finding that a juvenile committed burglary when he stole items from locker rooms in a public ice hockey facility since the record established that the locker rooms were not “objectively identifiable as off-limits to the public.”

In re E.P.; Fourth District, Div. Three; filed May 24, 2019


Cite as 2019 S.O.S. 2487


Family Law

Where the parties have stipulated that events that occurred after the Welfare and Institutions Code §366.26 have undermined the juvenile court’s finding that a child was likely to be adopted, the parties are entitled to submit additional evidence on appeal. A joint application for stipulated reversal did not overcome the presumption against accepting stipulated reversals on appeal where the application made no reference to the legal basis for reversing. A child welfare agency breached its statutory obligation to provide a fair assessment of adoptability by withholding information material to the preliminary assessment of the eligibility and commitment of an identified prospective adoptive parent; this breach rose to the level of a denial of due process since the child had had a fundamental liberty interest in accurate determination of the issue of adoptability on a full and complete record, and the agency supplies the evidentiary foundation on which the juvenile court’s adoptability determination must rest.

In re B.D.; First District, Div. Four; filed May 24, 2019


Cite as 2019 S.O.S. 2491


Government Law

The Feres doctrine does not bar facial constitutional challenges to military regulations or statutes. States may incorporate federal law regarding the appointment and termination of National Guard officer; the Military and Veterans Code incorporates National Guard Regulations No. 635–100(5)(a)(8) and (5)(a)(22).

DiRaffael v. California Army National Guard; Second District, Div. One; filed May 23, 2019


Cite as 2019 S.O.S. 2499



People v. Boulding; Fourth District, Div. Three; filed May 24, 2019


Cite as 2019 S.O.S. 2509



People v. Berg; Fourth District, Div. One; filed May 23, 2019


Cite as 2019 S.O.S. 2510