Veterans/ claims
Implicit denial rule can apply to separately-filed claims, both formal and informal.
This does not violate statutory due process protections.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-7130.Opinion.1-5-2016.1.PDF
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Federal Circuit: Wi-LAN Inc. v. Apple, Inc.
Patent.
Construction of claim did not bar defense that the order of operations was changed, as the construction implied the prior sequence.
De minimis differences in the two devices do not compel a finding of equivalence, as the changes should be considered relative to the portion of the device devoted to the function.
JMOL finding of no invalidity rested on an improper late construction of the claim.
(Or something like, or utterly unlike, that.)
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1437.Opinion.1-6-2016.1.PDF
Construction of claim did not bar defense that the order of operations was changed, as the construction implied the prior sequence.
De minimis differences in the two devices do not compel a finding of equivalence, as the changes should be considered relative to the portion of the device devoted to the function.
JMOL finding of no invalidity rested on an improper late construction of the claim.
(Or something like, or utterly unlike, that.)
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1437.Opinion.1-6-2016.1.PDF
Federal Circuit: Reddick v. FDIC
Employment/ Administrative
An accepted offer to extend a term of employment became valid only upon the end of the previous employment, and subsequent questionable behavior by the employee therefore permitted the employer to decline to extend employment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-3188.Opinion.1-6-2016.1.PDF
An accepted offer to extend a term of employment became valid only upon the end of the previous employment, and subsequent questionable behavior by the employee therefore permitted the employer to decline to extend employment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-3188.Opinion.1-6-2016.1.PDF
Federal Circuit: Guardian Angels Med Serv. v. US
Administrative law
A contracting officer's agreement to obtain and evaluate evidence bearing on the manner of the ending of a contract makes the earlier decision non-final, and the period to challenge the decision runs from the officer's subsequent final judgment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5058.Opinion.1-6-2016.1.PDF
A contracting officer's agreement to obtain and evaluate evidence bearing on the manner of the ending of a contract makes the earlier decision non-final, and the period to challenge the decision runs from the officer's subsequent final judgment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5058.Opinion.1-6-2016.1.PDF
Federal Circuit: Haggart v. US
Class actions, fees, estoppel
Where the government is the deft in a class action under a statutory cause of action that shifts fees, it has standing to contest the fee award.
As there is a policy interest in government candor, the government is not estopped from challenging fees that it now claims to have mistakenly not opposed an an earlier proceeding.
As the government's objection was to the mechanics of the disbursement, previous acquiescence to the plan does not judicially estop it from challenging it later. (In a footnote, a note that estoppel probably doesn't apply to FG.)
Abuse of discretion for lower court to approve settlement that relied on valuations of unassessed property without any disclosure of methodology of valuation.
Uncertainty as to the precise valuations of individual claims does not bar application of the common fund doctrine.
Opt-in classes can be subject to the common fund doctrine, and as there is no statutory requirement that the class members pay fees, a fee agreement is subject to equitable challenge.
Where equitable a fee-shifting statute displaces allocation of fees under the common fund doctrine. Circuit split flagged.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-5106.Opinion.1-6-2016.1.PDF
Where the government is the deft in a class action under a statutory cause of action that shifts fees, it has standing to contest the fee award.
As there is a policy interest in government candor, the government is not estopped from challenging fees that it now claims to have mistakenly not opposed an an earlier proceeding.
As the government's objection was to the mechanics of the disbursement, previous acquiescence to the plan does not judicially estop it from challenging it later. (In a footnote, a note that estoppel probably doesn't apply to FG.)
Abuse of discretion for lower court to approve settlement that relied on valuations of unassessed property without any disclosure of methodology of valuation.
Uncertainty as to the precise valuations of individual claims does not bar application of the common fund doctrine.
Opt-in classes can be subject to the common fund doctrine, and as there is no statutory requirement that the class members pay fees, a fee agreement is subject to equitable challenge.
Where equitable a fee-shifting statute displaces allocation of fees under the common fund doctrine. Circuit split flagged.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-5106.Opinion.1-6-2016.1.PDF
Federal Circuit: In re Urbanski
Patent.
A method of hydrating fibers (or something like that) doesn't teach away from a subsequent process -- a user wanting a different composition would simply vary the hydration.
Or something like (or utterly unlike) that.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1272.Opinion.1-6-2016.1.PDF
A method of hydrating fibers (or something like that) doesn't teach away from a subsequent process -- a user wanting a different composition would simply vary the hydration.
Or something like (or utterly unlike) that.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1272.Opinion.1-6-2016.1.PDF
DC Circuit: In re: Sealed Case
Sentencing
Where one justification for a sentence condition is alleged to have been made at trial, but the condition is omitted from the written sentence, a court may offer an alternate justification for the condition in a subsequent resentencing in the same proceeding.
No abuse of discretion in ordering incarceration for violations of sentencing conditions.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CEAD7C3CAC7B86DF85257F3400539427/$file/14-3058-1592438.pdf
Where one justification for a sentence condition is alleged to have been made at trial, but the condition is omitted from the written sentence, a court may offer an alternate justification for the condition in a subsequent resentencing in the same proceeding.
No abuse of discretion in ordering incarceration for violations of sentencing conditions.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CEAD7C3CAC7B86DF85257F3400539427/$file/14-3058-1592438.pdf
Eleventh Circuit: John H. Quinlan v. Secretary, U.S. Department of Labor
OSHA
Substantial evidence for agency finding that workers were not commandeered by another contractor at the time of accident.
Where a supervisor is engaged in a violation of the act with the employee, knowledge of the violation can still be imputed to the supervisor's employer.
http://media.ca11.uscourts.gov/opinions/pub/files/201412347.pdf
Substantial evidence for agency finding that workers were not commandeered by another contractor at the time of accident.
Where a supervisor is engaged in a violation of the act with the employee, knowledge of the violation can still be imputed to the supervisor's employer.
http://media.ca11.uscourts.gov/opinions/pub/files/201412347.pdf
Ninth Circuit: Retail Digital Network v. Jacob Appelsmith
First Amendment
Marketing agency has standing to challenge content-based restrictions on commercial speech, even if the speaker is determined to be the company selling the goods or the institution serving the goods.
Content-based restrictions on speech must withstand heightened scrutiny.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/07/13-56069.pdf
Marketing agency has standing to challenge content-based restrictions on commercial speech, even if the speaker is determined to be the company selling the goods or the institution serving the goods.
Content-based restrictions on speech must withstand heightened scrutiny.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/07/13-56069.pdf
Eighth Circuit: Boniface Makundi v. Loretta E. Lynch
Immigration
When an attorney effectively withdraws from a case by nonappearance a year prior to disbarment, an agency does not abuse its discretion by denying review of evidence that might have been gathered between the effective withdrawal and the disqualification.
http://media.ca8.uscourts.gov/opndir/16/01/143684P.pdf
When an attorney effectively withdraws from a case by nonappearance a year prior to disbarment, an agency does not abuse its discretion by denying review of evidence that might have been gathered between the effective withdrawal and the disqualification.
http://media.ca8.uscourts.gov/opndir/16/01/143684P.pdf
Eighth Circuit: McCaffree Financial Corp. v. Principal Life Insurace Co.
ERISA
As the terms of the mutual fund investment were negotiated at arms length prior to any fiduciary relationship between the parties, and a winnowing of investment options and subsequent advice had insufficient nexus to protected ERISA relationships, an assertion under ERISA of excessive fees doesn't state a claim.
http://media.ca8.uscourts.gov/opndir/16/01/151007P.pdf
As the terms of the mutual fund investment were negotiated at arms length prior to any fiduciary relationship between the parties, and a winnowing of investment options and subsequent advice had insufficient nexus to protected ERISA relationships, an assertion under ERISA of excessive fees doesn't state a claim.
http://media.ca8.uscourts.gov/opndir/16/01/151007P.pdf
Eighth Circuit: United States v. Bria Daudinot
Sentencing / Crim
Where deft was told that accomplice was about to rob a bank and deft knew that accomplice had in the past been convicted for using a gun to rob a bank, sentence may be increased for the use of the firearm.
http://media.ca8.uscourts.gov/opndir/16/01/151063P.pdf
Where deft was told that accomplice was about to rob a bank and deft knew that accomplice had in the past been convicted for using a gun to rob a bank, sentence may be increased for the use of the firearm.
http://media.ca8.uscourts.gov/opndir/16/01/151063P.pdf
Seventh Circuit: John Dawkins v. USA
ACCA,
A conviction under state burglary statute that bars entry without authority is not a modified categorical predicate but a stated predicate, as precedent holds that any burglary statute barring unlawful entry qualifies.
Dissent - PF showing as to potential reliance on (career offender) residual portion of statute - review appropriate to see if the sentencing court considered it a modified categorical predicate.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-07/C:15-3667:J:PerCuriam:aut:T:fnOp:N:1683399:S:0
A conviction under state burglary statute that bars entry without authority is not a modified categorical predicate but a stated predicate, as precedent holds that any burglary statute barring unlawful entry qualifies.
Dissent - PF showing as to potential reliance on (career offender) residual portion of statute - review appropriate to see if the sentencing court considered it a modified categorical predicate.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-07/C:15-3667:J:PerCuriam:aut:T:fnOp:N:1683399:S:0
Fifth Circuit: Arbuckle Mountain Ranch of TX v. Chesapeake Energy
Class actions
Given the presumption in favor of Federal jurisdiction, where the pleadings state a claim that involves a larger class than the currently constituted class, the party contesting removal under the CAFA local controversy exception bears the burden of establishing that a sufficient percentage of the class vindicated by the claim is from a given state.
Dissent - No presumption in favor of federal jurisdiction; pleadings should be construed under state rules, which allow for a more liberal notice of claim, and therefore might conceivably limit the class to those presently involved.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10955-CV0.pdf
Given the presumption in favor of Federal jurisdiction, where the pleadings state a claim that involves a larger class than the currently constituted class, the party contesting removal under the CAFA local controversy exception bears the burden of establishing that a sufficient percentage of the class vindicated by the claim is from a given state.
Dissent - No presumption in favor of federal jurisdiction; pleadings should be construed under state rules, which allow for a more liberal notice of claim, and therefore might conceivably limit the class to those presently involved.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10955-CV0.pdf
Fifth Circuit: USA v. C. Nagin
White Collar
Although honest services wire fraud requires a bribery element under Skilling, the transaction need not be an explicit quid pro quo.
Personal monetary judgments are a legitimate form of forfeiture.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30841-CR0.pdf
Although honest services wire fraud requires a bribery element under Skilling, the transaction need not be an explicit quid pro quo.
Personal monetary judgments are a legitimate form of forfeiture.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30841-CR0.pdf
Fourth Circuit: US v. William White
Crim - Extortion
Lack of subjective 'true threat' instruction ultimately harmless error.
Claim of right to the funds owed does not bar prosecution for communicating threats of physical harm, as the threats are themselves wrongful.
As the jury was told that it was being empaneled anonymously to prevent press communication, no error in anonymous empanelment.
Telephone notes admitted on direct as present-sense impressions might have been hearsay, but harmless error.
Sentence did not inappropriately consider deft's political views.
No error in not grouping counts.
http://www.ca4.uscourts.gov/Opinions/Published/144375.P.pdf
Lack of subjective 'true threat' instruction ultimately harmless error.
Claim of right to the funds owed does not bar prosecution for communicating threats of physical harm, as the threats are themselves wrongful.
As the jury was told that it was being empaneled anonymously to prevent press communication, no error in anonymous empanelment.
Telephone notes admitted on direct as present-sense impressions might have been hearsay, but harmless error.
Sentence did not inappropriately consider deft's political views.
No error in not grouping counts.
http://www.ca4.uscourts.gov/Opinions/Published/144375.P.pdf
Fourth Circuit: US v. Jeffrey Martinovich
FRE, Sentencing.
Although trial court's interventions in questioning of witnesses were imprudent, poorly conveyed, and went beyond the pale, they do not constitute plain error, as they were not ultimately dispositive of the verdict.
Where a judge says that since good reasons must be given for variances, the sentencing guidelines are effectively compulsory -- the sentence is therefore procedurally unreasonable; further inquiry into substantive unreasonableness is foreclosed.
http://www.ca4.uscourts.gov/Opinions/Published/134828.P.pdf
Although trial court's interventions in questioning of witnesses were imprudent, poorly conveyed, and went beyond the pale, they do not constitute plain error, as they were not ultimately dispositive of the verdict.
Where a judge says that since good reasons must be given for variances, the sentencing guidelines are effectively compulsory -- the sentence is therefore procedurally unreasonable; further inquiry into substantive unreasonableness is foreclosed.
http://www.ca4.uscourts.gov/Opinions/Published/134828.P.pdf
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