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Gabriel Malor

@gabrielmalor.bsky.social

Oklahoman in Virginia. Appellate attorney. I talk about federal court decisions. A lot. Sometimes the most you can do is the best you can do. gabriel.malor@gmail.com

12037 Posts21339 Follower 209 Folgt

Gabriel Malor @gabrielmalor.bsky.social · 2h ago

6th Cir.: attorneys fee request "almost shocks the conscience," orders the fee award drastically reduced where local counsel claimed to spend 4,800 hours litigating case even after Pacific Legal Foundation took over appellate briefing and argument pro bono. www.opn.ca6.uscourts.gov/opinions.pdf...

The Foundation’s briefing in the Hall appeal stands wholly apart in quality from all the other briefing on behalf of the plaintiffs in these two cases; and in our court Ms. Martin also presented oral argument for the plaintiffs in Hall. True, the McAlpine firm represented Marion Sinclair in her appeal; but on the dispositive takings claim, the McAlpine brief largely cut and pasted the arguments that the Foundation had made in Hall. And true, Mr. Smith presented several minutes of oral argument in the Hall appeal; but suffice it to say that does not change our conclusions here in the least. All of which is to say that it borders on stupendous that Scott Smith and the McAlpine firm claim to have billed more than 1,600 hours on those appeals, at rates averaging well above $400 per hour, for a sum approaching $700,000. Indeed that claim powerfully impeaches the entire fee request in these cases.

Gabriel Malor @gabrielmalor.bsky.social · 3h ago

4th Cir. with a brief comment on whether testimony is evidence. (It is.) www.ca4.uscourts.gov/opinions/251...

Our colleague rejects Dieng’s sworn testimony as “self-serving opinion” and credits Orkin’s testimony that the sales role required a level of physical exertion Dieng could not perform. Separate Op. at 24–25. Our colleague then concludes that Dieng’s statements in his sworn declaration cannot create a genuine issue of material fact. Id. Our caselaw is clear, however, that “[s]elf-serving affidavits offered by the non-movant can be used as evidence to defeat summary judgment, . . . when they are based on personal knowledge or firsthand experience.” Jones v. Solomon, 90 F.4th 198, 206–07 (4th Cir. 2024) (internal quotations marks and citations omitted). One would expect testimony submitted by a non-movant to oppose a motion for summary judgment to indeed be “self-serving.” It can nevertheless be powerful evidence. So long as the testimony is, like the statements in Dieng’s sworn affidavit, “based on personal knowledge or firsthand experience” it can create a dispute of material fact. Id. Of course, a jury will ultimately weigh this testimony, along with all other evidence adduced at trial, and assess what the essential functions of the desired positions are and whether

Gabriel Malor @gabrielmalor.bsky.social · 6h ago

2d Cir. sides with DoorDash, Grubhub, and Uber Eats, holds that NYC's law requiring delivery platforms to provide full customer info to restaurants (rather than just first name, last initial, and the order) violates the First Amendment as compelled speech. ww3.ca2.uscourts.gov/decisions/OP...

We hold that the Customer Data Law violates the First Amendment as applied to the Platforms’ Marketplace products. Zauderer’s deferential review does not apply to the Law because the Law compels the disclosure of information about third parties who use Marketplace, not information about Marketplace itself. The Law must therefore satisfy at least intermediate scrutiny under Central Hudson. It fails that standard because the City has not carried its burden to establish a reasonable fit between its asserted interests and the means the Law employs to advance those interests.

Gabriel Malor @gabrielmalor.bsky.social · 7h ago

1st Cir.: Puerto Rico's law criminalizing "false alarms" during declared emergencies violates the First Amendment bc it is a content-based regulation not narrowly tailored to achieve gov't's compelling interest in protecting public safety during an emergency. www.ca1.uscourts.gov/sites/ca1/fi...

Finally, the Government "has not shown, and cannot show, why counter[ ]speech would not suffice to achieve its interest." Alvarez, 567 U.S. at 726. The Government asserts -- without record support -- that counter speech would be ineffective because "[o]nce the false information is released, the damage is done." This does not explain why counter speech would be inadequate to achieve its interest. Consider again the COVID-19 pandemic. Statements arguing that masks are ineffective to stop disease transmission could be countered by government messaging explaining the benefits of wearing masks. Perhaps there are false statements that immediately cause harm such that counter speech would be ineffective, but this law is not limited to that category. In short, Article 5.14(a) does not meet the exacting standard of strict scrutiny.12 It represents an impermissible restriction of speech, particularly during times of emergency when it is most imperative that the public be well-informed and the government held to account. "[S]ince informed public opinion is the most potent of all restraints upon misgovernment," we look

Gabriel Malor @gabrielmalor.bsky.social · 11h ago

ICYMI last night, DHS is currently being fined every day for contempt of court until it coughs up the cell phone records of officers involved in immigration stops in L.A. last year that looked like racial profiling rather than reasonable cause. short thread -->

Gabriel Malor@gabrielmalor.bsky.social · 21h ago

Fed. judge holds DHS in civil contempt of court for refusing "intentionally and not in good faith" to provide plaintiffs with phone images they intend to use to prove DHS was racially profiling people arrested in Los Angeles without reasonable suspicion. Order from July 28, unsealed today.

B. Defendants’ Noncompliance Is Intentional And Not In Good Faith. Having found that Defendants are in violation of the January 16 Forensic Imaging Order, the burden now shifts to Defendants to show that they were unable to comply. Affordable Media, 179 F.3d at 1239 (9th Cir. 1999). They fail to make that showing. Upon review of the parties’ submissions and counsel’s representations at the hearing, it does not appear that Defendants’ noncompliance is due to an inability to comply. Instead, the clear and convincing evidence shows that Defendants have acted intentionally and not in good faith.

emptywheel @emptywheel.bsky.social · 13h ago

Apparently we're paying $25K bribes to AUSAs to convince the to risk their law license working for a shitshow DOJ. www.wsj.com/us-news/law/...

With a weighty portfolio of cases, Pirro has been working to stabilize her Washington office, which has been depleted by resignations and dismissals since Trump returned to the White House. Last month, Pirro offered prosecutors in her office a $25,000 retention bonus to stay for the next two years, according to people familiar with the matter.

Kyle Cheney @kyledcheney.bsky.social · 20h ago

Judge Wise finds that ICE coerced a 20-year-old Tongan man — admitted legally to the country three years ago — to sign a document accepting deportation, despite no criminal record or immigration proceedings against him. storage.courtlistener.com/recap/gov.us...

Gabriel Malor @gabrielmalor.bsky.social · 21h ago

Corey Rayburn Yung @coreyryung.bsky.social · 23h ago

In addition to having no experience in immigration, their website shows Ilya Shapiro (!) and disgraced former law prof Joshua Wright (!) as Senior Counsel. I don't think this massive contract was awarded to give immigrant children effective, zealous advocacy. burkegroup.law/our-team/

Our Team - BURKE LAW GROUP, PLLC

Our Team

burkegroup.law

Politico@politico.com · 23h ago

26-employee Texas law firm gets $150M to represent 24,000 children in immigration court

Gabriel Malor @gabrielmalor.bsky.social · yesterday

Yelling at Maximum while he wags his tail at the new friend: "YOUR ANCESTORS WERE WOLVES!"

Gabriel Malor@gabrielmalor.bsky.social · yesterday

Bit of a stare-off in the yard. Neither knew what to do.

A wood and wire fence cuts the photo in two. On the right side of the fence, a black lab puppy in a grassy area is staring aggressively through the fence. On the other side of the fence, on the other side of an asphalt driveway, a young deer stares back. There are some woods and a child's treehouse and swingset in the background.

Gabriel Malor @gabrielmalor.bsky.social · yesterday

Bit of a stare-off in the yard. Neither knew what to do.

Gabriel Malor @gabrielmalor.bsky.social · yesterday

9th Cir.: district court erred in granting a PI for Amazon which blocked people using Perplexity AI's Comet browser from Amazon[dot]com. Held: the CFAA contemplates a user, who must be a *person* not an agentic AI system, who "accessed" Amazon computers. cdn.ca9.uscourts.gov/datastore/op...

The relevant provision of the CFAA punishes “[w]hoever . . . intentionally accesses” a “protected computer.” 18 U.S.C. § 1030(a)(2) (emphasis added). In other words, the CFAA contemplates access by a person. However advanced the Assistant currently is, it is a tool, not a person for statutory purposes. See 18 U.S.C. § 921(a)(1) (“The term . . . ‘whoever’ include[s] any individual, corporation, company, association, firm, partnership, society, or joint stock company.”); see also Whoever, Cambridge English Dictionary, [https://perma.cc/YY3TVTJF] (last visited July 16, 2026) (“[T]he person who” (emphasis added)).

Gabriel Malor @gabrielmalor.bsky.social · yesterday

9th Cir. holds that the Bad Spaniels parody toy of a Jack Daniel's bottle is unlikely to harm the reputation of Jack Daniel's trademarks *because* it is parody. Held: no dilution by tarnishment; remanded for entry of judgment in favor of Bad Spaniels maker. cdn.ca9.uscourts.gov/datastore/op...

After all, no matter how similar to its famous counterpart, a parodic junior mark ultimately “relies upon a difference from the original mark, presumably a humorous difference, in order to produce its desired effect.” Jordache Enters. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486 (10th Cir. 1987). Dr. Simonson’s analysis ignored the effect of a “humorous difference” on whether Bad Spaniels harms the reputation of JDPI’s famous marks. To be sure, the district court credited Dr. Simonson’s conclusion that the first step of his dilution analysis was satisfied “because the point of VIP’s product was to bring Jack Daniel’s whiskey to mind”; that conclusion was based on VIP’s transparently parodic use. But there is no evidence that Dr. Simonson considered the parodic nature of VIP’s junior marks when building Jack Daniel’s ANM, or that satire otherwise factored into his analysis of the mental association between the disputed marks. Parody, however, is inherent in the Bad Spaniels product—indeed, as Dr. Simonson recognized, it was the “whole point.” Failing to consider the effect of VIP’s obvious parody on the likelihood of tarnishment was a critical misstep, and the district court erred in adopting the conclusions that followed.

Gabriel Malor @gabrielmalor.bsky.social · yesterday

Is you taking notes on a criminal fucking conspiracy? ecf.ca8.uscourts.gov/opndir/26/08...

While in a county jail for the meth conspiracy, Spider sent a letter to a codefendant in another county jail. The letter threatened retribution against any codefendant who testified, alluding to enforcement by Hell’s Angels. The codefendant testified at trial about the letter’s contents.

Chris Geidner @chrisgeidner.bsky.social · yesterday

BREAKING: The Eleventh Circuit, en banc, upholds Florida's anti-drag law, holding that it is neither unconstitutionally vague nor unconstitutionally overbroad. More to come at Law Dork: www.lawdork.com

In the
Hnited States Court af Ammeals
Hor the Flerenth Circuit
No. 23-12160
HM FLORIDA-ORL, LLC,
Plaintiff-Appellee,
versus
GOVERNOR OF FLORIDA, et al.,
Defendants,
SECRETARY OF THE FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida
D.C. Docket No. 6:23-cv-00950-GAP-LHP

Kyle Cheney @kyledcheney.bsky.social · yesterday

DOJ loses for the 19th time in efforts to obtain state voter rolls, this time in Colorado, courtsey of Judge Philip Brimmer, a George W. Bush appointee: storage.courtlistener.com/recap/gov.us...

Brian Finucane @bcfinucane.bsky.social · yesterday

Well, at least it was for a completely lawless and pointless cause.

CNBC@cnbc.com · yesterday

U.S. has used 'virtually all' of its long-range precision missiles during Iran war: Reuters

Helen Kennedy @helenkennedy.com · 2d ago

It's a Franzia Blush night.

CrazySaguaro 🌵 🐻 ⬇️@crazysaguaro.com · 2d ago

Pirro leaving west wing, possibly fired since she has a lot of stuff with her

Chris Geidner @chrisgeidner.bsky.social · 2d ago

NEW: Philadelphia is seeking en banc review of the President's House decision, which allowed Interior to put up new signs downplaying Washington's ownership of slaves. storage.courtlistener.com/recap/gov.us...

No. 26-1348
In the United States Court of Appeals
for the Third Circuit
CITY OF PHILADELPHIA, Plaintiff-Appellee,
V.
SECRETARY U.S. DEPARTMENT OF INTERIOR; U.S. DEPARTMENT OF INTERIOR;
DIRECTOR NATIONAL PARK SERVICE; NATIONAL PARK SERVICE,
Appellants,
On Appeal from the U.S. District Court for the Eastern District of Pennsylvania (No. 2:26-cv-00434)
Hon. Cynthia M. Rufe
APPELLEE THE CITY OF PHILADELPHIA'S PETITION FOR PANEL REHEARING OR REHEARING EN BANC
CITY OF PHILADELPHIA LAW DEPARTMENT RENEE GARCIA, CITY SOLICITOR

ARGUMENT
H
The Panel's "Agency Action" Holding is Wrong and of Exceptional
Importance
A.
The Federal Government's Removal of the Panels Was Reviewable "Agency Action" Under Controlling Precedent
B.
The Panel's "Agency Action" Holding is of Exceptional
Importance
II.
The Panel's Finality Holding Is Wrong and of Exceptional Importance
A. The Panel's View of Finality Defies Controlling Precedent...
В.
The Panel's Finality Holding is of Exceptional Importance
CONCLUSION

Ryan J. Reilly “paints a vivid and urgent portrait of… disarray”@ryanjreilly.com · 2d ago

NEW: DOJ moves to chuck attempted class action lawsuit filed by Jan. 6ers: storage.courtlistener.com/recap/gov.us...

Gabriel Malor @gabrielmalor.bsky.social · 2d ago

10th Cir. holds that Congress appropriately exercised its authority under the commerce clause to ban handgun possession by juveniles as an essential part of a comprehensive regulatory scheme that substantially affects interstate commerce. www.ca10.uscourts.gov/sites/ca10/f...

Restated, Congress’s goal in § 922(x) is to exclude juveniles from interstate handgun markets. This goal is within Congress’s Commerce Clause power, which extends to excluding buyers from interstate or foreign markets. See Durham, 902 F.3d at 1193 (holding that it is permissible to exclude U.S. citizens and permanent residents from international sextrafficking markets under the Foreign Commerce Clause). That’s because reducing the number of buyers is likely to substantially affect the size of interstate markets in the relevant good as well as the interstate market price for that good, or so Congress could rationally conclude. Cf. PETPO, 852 F.3d at 1006 (holding that Congress could rationally conclude that Endangered Species Act substantially affects interstate commerce because it’s a “brake on economic activity”).

Gabriel Malor @gabrielmalor.bsky.social · 2d ago

2d Cir. holds that Deutsche Bank providing financial services at arms length to ISIL and ISL-affiliated banks in Iraq does not rise to the level of "participation" in terrorism. So estates and families of ISIL victims cannot recover damages from the bank. ww3.ca2.uscourts.gov/decisions/OP...

Plaintiffs nonetheless stress that ISIS’s fundraising activities could not have succeeded as they did without access to Deutsche Bank’s financial services. But ISIS’s need for financial services, no matter how great, does not mean that Deutsche Bank took part in the group’s fundraising ventures any more than a utility company takes part in its customers’ businesses by satisfying their essential demand for electricity. Congress has shown that it knows how to make material support of an unlawful organization the standard for liability, see, e.g., 18 U.S.C.

Gabriel Malor @gabrielmalor.bsky.social · 3d ago

GEORGIA IS A COMPLETLY KNOWN QUANTITY. IT HAS FUCKING AIRBNB AND UBER. WHY WOULD YOU USE TBLISI AS YOUR EXAMPLE?

@robertstadler.bsky.social · 3d ago

If I were considering going as a tourist to an unfamiliar country where my local library system didn't have a travel guide available (e.g. my brother has suggested a trip to Tblisi), I might use a genAI system to come up with a sample itinerary to see if it seems interesting.

Gabriel Malor @gabrielmalor.bsky.social · 3d ago

These fuckin idiots really, really want to have their own JARVIS from the comic books.

Cathy Gellis@cathygellis.bsky.social · 3d ago

They think they can use AI like a personal assistant. It can be annoying to work through travel logistics, so what if AI could do it for you? It gives the illusion it can. Just not reliably.

Gabriel Malor @gabrielmalor.bsky.social · 3d ago

But why would anyone use an AI-generated travel itinerary in the first place? I feel like people are just trying to use AI for things that already have solutions. Like, travel itineraries are a solved problem. Why are AI people making it an unsolved problem?

Mark Lemley@marklemley.bsky.social · 3d ago

Important safety tip for AI users: when relying on a proposed travel itinerary generated by AI, double-check to make sure that the dates AI proposes actually exist before making reservations. No, Claude, September 24, 2026 is NOT a Friday

Gabriel Malor @gabrielmalor.bsky.social · 3d ago

Just one more example of how Trump's IRS lawsuit and the "settlement" were a fraud on the court. One party to a settlement cannot unilaterally terminate portions of it on a whim, particularly the portions that were supposedly entered on behalf of the *other party.*

MeidasTouch@meidastouch.com · 3d ago

🚨NEW: Todd Blanche’s new order rescinds the May 18 Anti-Weaponization Fund—but quietly leaves the May 19 IRS immunity settlement intact. Instead of rescinding it, the accompanying memo reaffirms DOJ’s interpretation, arguing the immunity applies only retroactively and only to the parties involved.1/

Eric Columbus @ericcolumbus.bsky.social · 3d ago

As Cornyn noted at Blanche's confirmation hearing—and as Blanche agreed!—this doesn't change the underlying settlement between Trump and the government, which required the fund to be established. Trump could sue to enforce the settlement. Or Blanche could resurrect the fund once he's confirmed.

Anna Bower@annabower.bsky.social · 3d ago

NEWS: Todd Blanche says he is rescinding his May 18 order establishing the “anti-weaponization fund”

Acting AG Todd Blanche • C
@DAGToddBlanche
X.com
My team and I have met with committee
members and Senators over the past several weeks and addressed any concerns or
outstanding questions. We have enjoyed good faith discussions, and as a result issue the following order and update with regard to the May
IRS settlement. The Department always welcomes and appreciates productive engagement with all members of Congress.
Office of the Attorneu General
nahington. D. C. 20330
Office of the Attorncu Gencral
Wnshington. D. C. 20530
Augue 2, 2026
. The Ahomey Goncral's May 18, 2026 Onder establishing the Mati-W'caponizati:
Department of Justice Rescinds Anti-Weaponization Order

Patrick Matthews @matthewsp.bsky.social · 3d ago

What else should we expect from the dude who looked the other way when athletes under his care were being sexually abused?

Eric Umansky@ericumansky.bsky.social · 3d ago

GOP Rep. Jim Jordan on alleged spouse and child abuser Max Miller: “This is a family matter. I know Max is a good man. I hope he wins re-election.” www.nytimes.com/2026/08/02/u...

Gabriel Malor @gabrielmalor.bsky.social · 4d ago

Had to unfollow someone for repeatedly reskeeting fake news posts as if they were real. Don't do that.

Chris Geidner @chrisgeidner.bsky.social · 4d ago

NEW: Jeanine Pirro's motion to dismiss the Reflecting Pool case is going to have ripple effects. The decision to end the case against former Olympian David Hearn is already making a big splash — and this is likely just the beginning, not the end, of the matter. Tonight, at Law Dork:

Jeanine Pirro's motion to dismiss the Reflecting Pool case is going to have ripple effects

The decision to end the case against former Olympian David Hearn is already making a big splash — and this is likely just the beginning, not the end, of the matter.

lawdork.com