Veterans, Administrative
Construing things in the manner most favorable to the veteran doesn't bar Chevron deference to decisions by Veterans Affairs.
Given statutory rulemaking mandate to the Secretary, rule requiring remand to agency from Board to substitute a claimant for a deceased petitioner is not arbitrary & capricious.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-7024.Opinion.1-11-2016.1.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: Ethicon Endo-Surgery Inc. v. Covidien LP
Patent, Due Process
Absent claims of extrajudicial influence, no Due Process harm in the initial and final review being performed by the same panel.
Statute does not bar.
Review correctly identified innovation as obvious, as infringing prior art that incorporated the innovation was primarily marketed under other aspects.
Dissent: As statute assigns one level of adjudication to the Director and one to the Board, there must be separate panels.
[Again, we don't know many things, but we especially don't know Patent Law. Just trying for comprehensive access to slips.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1771.Opinion.1-8-2016.1.PDF
Absent claims of extrajudicial influence, no Due Process harm in the initial and final review being performed by the same panel.
Statute does not bar.
Review correctly identified innovation as obvious, as infringing prior art that incorporated the innovation was primarily marketed under other aspects.
Dissent: As statute assigns one level of adjudication to the Director and one to the Board, there must be separate panels.
[Again, we don't know many things, but we especially don't know Patent Law. Just trying for comprehensive access to slips.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1771.Opinion.1-8-2016.1.PDF
Tenth Circuit: Martin Marietta Materials v. Kansas DOT
Administrative, Procedural DP
Federal statutory requirement that changes to state agency's plan receive federal approval in order to receive certain federal funds does not create a property interest assertable by the suppliers affected by the change.
Supplier is not in privvity with contractor in contract with state government.
Being on a list of approved suppliers does not create a property interest.
No mutually explicit understanding.
No liberty interest imperiled by defamation by removal from approved supplier list, as the test results were true.
No showing of concrete harm from gov't statements.
https://www.ca10.uscourts.gov/opinions/13/13-3314.pdf
Federal statutory requirement that changes to state agency's plan receive federal approval in order to receive certain federal funds does not create a property interest assertable by the suppliers affected by the change.
Supplier is not in privvity with contractor in contract with state government.
Being on a list of approved suppliers does not create a property interest.
No mutually explicit understanding.
No liberty interest imperiled by defamation by removal from approved supplier list, as the test results were true.
No showing of concrete harm from gov't statements.
https://www.ca10.uscourts.gov/opinions/13/13-3314.pdf
Tenth Circuit: Tripodi v. Welch
FRCP, Bankruptcy
Default judgment in securities action not susceptible to attack on the basis that the notes described in the pleadings were not securities, as they are not barred as a matter of law from being considered securities.
Securities judgment properly held nondischargable in bankruptcy, as relevant nondischargablilty statute requires a judicial order or verdict.
https://www.ca10.uscourts.gov/opinions/14/14-4084.pdf
Default judgment in securities action not susceptible to attack on the basis that the notes described in the pleadings were not securities, as they are not barred as a matter of law from being considered securities.
Securities judgment properly held nondischargable in bankruptcy, as relevant nondischargablilty statute requires a judicial order or verdict.
https://www.ca10.uscourts.gov/opinions/14/14-4084.pdf
Eighth Circuit: United States v. Peter Giambalvo
Tax, Statute of Limitations, FRE
Parenthetical inclusion of offense in statute did not incorporate the statute of limitations for the offense.
Testimony as to impact of tax-avoidance book properly excluded, as subjective reliance of the deft is the sole criterion.
Statements on direct by gov't expert did not open the door to testimony about the general lack of a tax obligation, as the actual amount objectively due is immaterial to the subjective belief in the falsity of a tax filing.
The fact that a zero-income 1040 filing is possibly not a tax return as a matter of law doesn't bar a prosecution for filing a false form.
http://media.ca8.uscourts.gov/opndir/16/01/151136P.pdf
Parenthetical inclusion of offense in statute did not incorporate the statute of limitations for the offense.
Testimony as to impact of tax-avoidance book properly excluded, as subjective reliance of the deft is the sole criterion.
Statements on direct by gov't expert did not open the door to testimony about the general lack of a tax obligation, as the actual amount objectively due is immaterial to the subjective belief in the falsity of a tax filing.
The fact that a zero-income 1040 filing is possibly not a tax return as a matter of law doesn't bar a prosecution for filing a false form.
http://media.ca8.uscourts.gov/opndir/16/01/151136P.pdf
Eighth Circuit: Charles Mitchael v. Carolyn W. Colvin
SSA, FRCP
As the question of retroactive application of a claims adjudication does not present an objective nondiscretionary agency duty, Federal jurisdiction under the mandamus statute is improper.
No equal protection or due process claim, as rules on retroactive application constitute a legitimate procedural bar, and plaintiffs did not challenge constitutionality of old rule in initial proceeding.
http://media.ca8.uscourts.gov/opndir/16/01/143220P.pdf
As the question of retroactive application of a claims adjudication does not present an objective nondiscretionary agency duty, Federal jurisdiction under the mandamus statute is improper.
No equal protection or due process claim, as rules on retroactive application constitute a legitimate procedural bar, and plaintiffs did not challenge constitutionality of old rule in initial proceeding.
http://media.ca8.uscourts.gov/opndir/16/01/143220P.pdf
Seventh Circuit: Roberta Jaburek v. Anthony Foxx
FRCP, Title VII
No error in the denial of motion to reconsider grant of extension of time to file, as opposing counsel had gout.
Summary judgment against plaintiff on lack of promotion upheld, as plaintiff merely claimed that she was doing the work equivalent of the higher position, and never actually applied for the position. Comparators antedated her employment.
Insufficient definition of core tasks.
No retaliation absent proof of cognizable assertion prior to adverse action.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2165:J:Bauer:aut:T:fnOp:N:1686153:S:0
No error in the denial of motion to reconsider grant of extension of time to file, as opposing counsel had gout.
Summary judgment against plaintiff on lack of promotion upheld, as plaintiff merely claimed that she was doing the work equivalent of the higher position, and never actually applied for the position. Comparators antedated her employment.
Insufficient definition of core tasks.
No retaliation absent proof of cognizable assertion prior to adverse action.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2165:J:Bauer:aut:T:fnOp:N:1686153:S:0
Sixth Circuit: LFP IP, LLC v. Hustler Cincinnati, Inc.
Injunctions
No clear error in court holding that injunction protecting mark derived from a surname owned by one sibling to the exclusion of others can be modified to include related products.
http://www.ca6.uscourts.gov/opinions.pdf/16a0010p-06.pdf
No clear error in court holding that injunction protecting mark derived from a surname owned by one sibling to the exclusion of others can be modified to include related products.
http://www.ca6.uscourts.gov/opinions.pdf/16a0010p-06.pdf
Sixth Circuit: Donald Burniac v. Wells Fargo Bank, N.A.
FRCP
State court default judgment did not bar summary judgment for the other party upon removal to federal court, as the case was removed after the request for summary judgment, but before the formal entry by the clerk.
Federal judgment extinguished the state preliminary injunction; the preliminary injunction did not bar removal.
Statutory irregularities in foreclosure proceeding made proceeding voidable, not void. No prejudice shown.
http://www.ca6.uscourts.gov/opinions.pdf/16a0009p-06.pdf
State court default judgment did not bar summary judgment for the other party upon removal to federal court, as the case was removed after the request for summary judgment, but before the formal entry by the clerk.
Federal judgment extinguished the state preliminary injunction; the preliminary injunction did not bar removal.
Statutory irregularities in foreclosure proceeding made proceeding voidable, not void. No prejudice shown.
http://www.ca6.uscourts.gov/opinions.pdf/16a0009p-06.pdf
Fifth Circuit: Michael Cannon v. Jacobs Field Svc N Amer, Inc.
ADA
Error to grant summary judgment against ADA claim by engineer unable due to injury to lift hand above head, given the possibility that he might be able to climb ladders properly and do without medication.
Confusing procedural bit at the end on SJ on non-accommodation claim.
http://www.ca5.uscourts.gov/opinions/pub/15/15-20127-CV0.pdf
Error to grant summary judgment against ADA claim by engineer unable due to injury to lift hand above head, given the possibility that he might be able to climb ladders properly and do without medication.
Confusing procedural bit at the end on SJ on non-accommodation claim.
http://www.ca5.uscourts.gov/opinions/pub/15/15-20127-CV0.pdf
Subscribe to:
Posts (Atom)