City of Albuquerque v Soto Enterprises, Inc.

Soto appealed the order remanding the case to New Mexico state court based on Soto’s filing a motion to dismiss before filing its removal notice. The panela affirmed. It first held that it had jurisdiction over the appeal under 28 USC 1447(d) as remand based on participation in the state case does not implicate subject matter jurisdiction as it is a common law procedural limitation and noted a split of authority on the issue but held the one case going the other way lacks any reasoning and is inconsistent with the body of law governing subject matter jurisdiction and the participation waiver is not within the meaning of “any defect” as it is not based on the thirty day clock, the requirement for unanimity among defendants and Soto is not a New Mexico citizen and thus removal is not based on the legal requirements to remove which is consistent with congressional intent in adopting the any defect language in 1996. The panel held that motions to dismiss seek an adjudication on the merits and thus objectively manifest a clear and unequivocal intent to submit to state jurisdiction, but to prevent unfairness, any participation required by state procedural rules will not result in waiver. However, that exception did not apply here, as New Mexico does not require motions to dismiss before the thirty-day clock runs out.

THI of New Mexico at Vida Encantada, LLC v Lovato

THI appealed the district court order confirming an arbitration award. The panel affirmed holding the arbitrator was vested with authority to decide all issues pertaining to the arbitration arguably including the award the contested costs and interest here and the agreement also adopted a code of procedure which authorizes any legal or equitable remedy and New Mexico law allows the award here and is not preempted and thus the arbitrator here construed the agreement and did not knowingly disregard controlling law and thus the award will not be reversed.

Consolidation Coal Company v Director Office of Workers’ Compensation Programs, United States Department of Labor

Company petitioned for review of a grant of black lung benefits. The panel granted the petition and remanded. It held that the statutory presumption that 15 years as a coal miner means black lung is caused by working in coal mines applies to both clinical and legal pneumoconiosis as that is the definition in statutes, judicial decisions and the implementing regulations and the case relied upon by Company dealt with a Daffern presumption that only made sense if limited to the clinical form of the disease. It held that the statute setting up the presumption shifts the burden of persuasion to coal companies and thus the Administrative Procedure Act’s default placement of the burden on claimants did not apply. It held that the requirement that a company rule out coal mining as a cause of lung disease is a permissible construction of the statute adopting the presumption and allowing companies to merely prove a lack of substantial causation would effectively gut the presumption as recognized by the 3rd and  4th Circuits. It also held that Company’s due process argument is substantially identical to one rejected in circuit precedent and thus fails. It remanded the case, however, because the administrative law judge appears to have used the wrong standard in evaluating the evidence.

United States v Doe

Doe appealed the denial of his motion to enforce the substantial assistance provision in his plea agreement. The panel reversed and remanded. It held that an intra-circuit split of unpublished authority on whether or not district courts may review the decision to not file a discretionary substantial assistance motion was puzzling given a 1991 published opinion allowing such review, held intervening United sates Supreme court precedent did not change the outcome as it was limited to constitutional challenges in the absence of plea agreements, that all contracts include an implied good faith provision and defendants should be able to rely on good faith principle when they bargain away rights based in part on substantial assistance provisions, if prosecutors do not want good faith review of their substantial assistance decisions they can exclude those provisions in plea agreements and the good faith review is a 3 step process of defense alleging bad faith, prosecutors explaining their decision and defendants being allowed to challenge those reasons. Here, the government had not been required to explain its decision and thus the case was remanded for further proceedings.

Pecha v Lake

In an unpublished opinion, the panel held that Pecha’s death mooted the claim for prospective injunctive relief and a claim for retroactive befits was ancillary and thus failed. Judge Hartz added a published concurrence arguing the district court erred in not substituting Pecha’s estate, appellate counsel erred in not adding the estate as a party to appeal and the panel erred not sua sponte substituting the estate in as appellant. However, he agreed the case is moot as there can be no prospective relief and obtaining judgment as to eligibility to use as res judicata in a state court claim is barred under Untied States Supreme Court precedent.