Maintenance of inconsistent positions in civil litigation (e.g., not disclosing a suit for damages in a bankruptcy litigation) is not in itself making a sham of the judicial system; the court, when making such a determination, must consider the plaintiff/petitioner's sophistication and the conduct of the suit.
11.uscourts.gov/opinions/pub/files/201215548.op2.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.
Eleventh Circuit: US v. Ramon Cobena Duenas
Sufficient evidence for a courier's conviction for counterfeiting conspiracy under the prudent smuggler doctrine where the prosecution demonstrates a plenitude of contacts among the organization, the courier evinces an awareness of the unlawful nature of the operation, and the courier's actions are critical to the success of the operation.
http://media.ca11.uscourts.gov/opinions/pub/files/201710509.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201710509.pdf
Federal Circuit: Medtronic, Inc. v. Barry
Patent -- substantial evidence.
etc, etc.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1169.Opinion.6-8-2018.1.pdf
etc, etc.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1169.Opinion.6-8-2018.1.pdf
Federal Circuit: Stone Baskets LLC v. Cook Medical LLC
No abuse of discretion in denial of fees in patent litigation, etc, etc.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2330.Opinion.6-8-2018.1.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2330.Opinion.6-8-2018.1.pdf
Federal Circuit: Williams v. MSPB
Agency regulation holding a minimal period of unemployment when transferring between jobs is sufficient to constitute a break in employment for purposes of qualifying for protections of judicial review is a reasonable one, and as it's specific, it's not subject to the anti-parroting canon.
When an agency does not inform an employee of the loss of appeal rights from a transfer, those appeal rights can't later be grated by the Board when they are outside of the statutory jurisdiction of the Board.
No Due Process rights, as the boundaries of the right are coterminous with the boundaries of the statute.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1535.Opinion.6-7-2018.1.pdf
When an agency does not inform an employee of the loss of appeal rights from a transfer, those appeal rights can't later be grated by the Board when they are outside of the statutory jurisdiction of the Board.
No Due Process rights, as the boundaries of the right are coterminous with the boundaries of the statute.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1535.Opinion.6-7-2018.1.pdf
Federal Circuit: Chicago Coating Company v. US
As the deeds of conveyance to the railway were in quitclaim form, a presumption of conveyance in fee simple arises. Reference in one case to a right of way is insufficient to overcome this presumption, as it was likely used to identify the existing easement that ran across the property to be conveyed. Right of re-entry doesn't argue either way, but a reverter in the second deed further reinforces the conveyance in fee simple. Etc, etc.
Carlos Quinteros-Cisneros v. Jefferson B. Sessions III
As state law distinguishes sentencing enhancements from aggravating circumstances and requires sentencing enhancements to be included in the charge, an element of a sentencing enhancement can make the conviction a predicate felony in an immigration removal proceeding.
As sexual abuse of a minor is per se abusive, the conviction is a valid predicate as a crime of abuse.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/13-72632.pdf
As sexual abuse of a minor is per se abusive, the conviction is a valid predicate as a crime of abuse.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/13-72632.pdf
Ninth Circuit: Patricia Campbell v. EDU-HI
Employer's loss of a performance report is not, by itself, an adverse employment action.
Investigation of employee that did not affect her working conditions was not an adverse employment action; the suggestion that others were placed on paid leave while under investigation did not make the continued conditions of employment an adverse action.
Denial of transfer not adverse, since application was untimely.
Music and dance teacher did not establish that classes other than remedial math were available to teach; the assignment therefore was not an adverse one.
Lack of comparators for most claims.
Claim of hostile work environment from student animus is defeated by district's incremental and timely response.
Employer's speech in workplace reasonable.
As no adverse action, no retaliation; actions had sufficient neutral justification.
Standards for Title VII claim identical to Title IX claim.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/15-15939.pdf
Investigation of employee that did not affect her working conditions was not an adverse employment action; the suggestion that others were placed on paid leave while under investigation did not make the continued conditions of employment an adverse action.
Denial of transfer not adverse, since application was untimely.
Music and dance teacher did not establish that classes other than remedial math were available to teach; the assignment therefore was not an adverse one.
Lack of comparators for most claims.
Claim of hostile work environment from student animus is defeated by district's incremental and timely response.
Employer's speech in workplace reasonable.
As no adverse action, no retaliation; actions had sufficient neutral justification.
Standards for Title VII claim identical to Title IX claim.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/15-15939.pdf
Ninth Circuit: US v. Paul Swallow
Sentencing determination that the deft's tennis shoes were dangerous weapons when used to stomp on the victim's head was not an abuse of discretion.
Error, though, to hold that the crime was committed for something of value when the deft had attacked the victim after not receiving the promised drugs in exchange for his wife's $10.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-30224.pdf
Error, though, to hold that the crime was committed for something of value when the deft had attacked the victim after not receiving the promised drugs in exchange for his wife's $10.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-30224.pdf
Ninth Circuit: April Bain v. California Teachers Ass'n
Where the original parties to the suit challenging union fees leave covered employment during the pendency of the appeal and can therefore no longer receive the sought equitable and injunctive relief, the case is moot; it cannot be converted into an action for damages, and an organizational plaintiff cannot be joined to preserve standing.
The remedy is dismissal without a vacatur of the earlier decision on the merits.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-55768.pdf
The remedy is dismissal without a vacatur of the earlier decision on the merits.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-55768.pdf
Ninth Circuit: Richard Vos v. City of Newport Beach
Given the perimeter of police officers with guns, tasers, and dogs, the necessity of killing the gentleman running towards the exit of the 7-11 presents a genuine issue of disputed fact for trial.
Qualified immunity for officers, as circuit precedent as to the appropriate bounds of behavior when dealing with odd, threatening people carrying sharp things was a bit unclear; question of municipal liability remanded.
As the ADA claim of lack of accommodation isn't dispelled by the fact that the officers didn't initiate the confrontation, the issue of reasonable accommodation presents a question for trial.
State tort definition of negligence reasonableness is distinct from Fourth Amendment reasonableness.
Dissent: Fact of mental illness in the suspect shouldn't change the calculus on the use of deadly force in an exigent situation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-56791.pdf
Qualified immunity for officers, as circuit precedent as to the appropriate bounds of behavior when dealing with odd, threatening people carrying sharp things was a bit unclear; question of municipal liability remanded.
As the ADA claim of lack of accommodation isn't dispelled by the fact that the officers didn't initiate the confrontation, the issue of reasonable accommodation presents a question for trial.
State tort definition of negligence reasonableness is distinct from Fourth Amendment reasonableness.
Dissent: Fact of mental illness in the suspect shouldn't change the calculus on the use of deadly force in an exigent situation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-56791.pdf
Eighth Circuit: Porfirio Rodriguez v. Wal-Mart Stores, Inc
In an ADA action, occasional delays in a good-faith negotiation are not a basis for equitable estoppel against deft's argument that the agency filing required by the statute wasn't timely.
http://media.ca8.uscourts.gov/opndir/18/06/171737P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/171737P.pdf
Eighth Circuit: Henry Miranda v. Jefferson Sessions, III
For purposes of immigration removal, the question of whether a particular group is a cognizable social group under the statute is a question of law.
Former taxi drivers who witnessed a murder and were subsequently threatened by a gang do not constitute such a group.
http://media.ca8.uscourts.gov/opndir/18/06/171430P.pdf
Former taxi drivers who witnessed a murder and were subsequently threatened by a gang do not constitute such a group.
http://media.ca8.uscourts.gov/opndir/18/06/171430P.pdf
Eighth Circuit: James Dean v. Burdette Searcey
Holding of prior panel is binding circuit precedent, in addition to law of the case.
Where the principal agent in the theory of municipal liability is exonerated at trial, municipality may still be liable under the theory that the principal actor was exonerated in his functional role, but held to be culpable in his managerial and policymaking role.
Sufficient evidence to support earlier interlocutory holdings on qualified immunity.
Statements and visual aids in opening and closing that referenced innocence of plaintiffs were not unduly prejudicial.
No error in reckless investigation jury instruction that referenced reckless gathering of unreliable evidence, as it does not suggest the lesser threshold of negligence.
"Pled."
http://media.ca8.uscourts.gov/opndir/18/06/164059P.pdf
Where the principal agent in the theory of municipal liability is exonerated at trial, municipality may still be liable under the theory that the principal actor was exonerated in his functional role, but held to be culpable in his managerial and policymaking role.
Sufficient evidence to support earlier interlocutory holdings on qualified immunity.
Statements and visual aids in opening and closing that referenced innocence of plaintiffs were not unduly prejudicial.
No error in reckless investigation jury instruction that referenced reckless gathering of unreliable evidence, as it does not suggest the lesser threshold of negligence.
"Pled."
http://media.ca8.uscourts.gov/opndir/18/06/164059P.pdf
Seventh Circuit: Village of Barrington, IL v. STB
Dicta: Appeal of Board's denial of motion to reconsider as final agency action does not necessarily incorporate earlier decisions, especially when the earlier decisions are not apart of the appellate record.
Appeal of material error which dates to initial board action cannot be appealed by challenging subsequent denials to reconsider.
New evidence raised at motions to reconsider was either available to parties earlier or raised in earlier proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-11/C:17-3586:J:Flaum:aut:T:fnOp:N:2168607:S:0
Appeal of material error which dates to initial board action cannot be appealed by challenging subsequent denials to reconsider.
New evidence raised at motions to reconsider was either available to parties earlier or raised in earlier proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-11/C:17-3586:J:Flaum:aut:T:fnOp:N:2168607:S:0
Sixth Circuit: Amir Shabo v. Jefferson B. Sessions, III
Since agency removal order factual finding that there was an insufficient likelihood of torture after deportation presents neither an issue of law nor one of constitutional rights, the court does not have jurisdiction over the appeal to the agency's parallel holding that the conditions in the other country hadn't changed.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0111p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0111p-06.pdf
Sixth Circuit: U.S. ex rel. Marjorie Prather v. Brookdale Senior Living Cmty., et al. - Middle District of Tennessee at Nashville
In a False Claims Act suit, a time factor is material where the governing statute references a regulation that, in the process of defining the list of terms within the referenced regulation, subsequently incorporates the timing factor.
Past practice is not dispositive at the motion-to-dismiss stage where there is no showing that the government was aware of the factor.
Training and instruction publications can help to establish that a certain factor goes to the essence of the bargain.
Sufficient proof of scienter for trial where deft instructed cursory review, was advised of requirements, and implicitly referenced the violation in internal emails.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0110p-06.pdf
Past practice is not dispositive at the motion-to-dismiss stage where there is no showing that the government was aware of the factor.
Training and instruction publications can help to establish that a certain factor goes to the essence of the bargain.
Sufficient proof of scienter for trial where deft instructed cursory review, was advised of requirements, and implicitly referenced the violation in internal emails.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0110p-06.pdf
Fifth Circuit: Kimberly Huckaba v. Ref-Chem, L.P.
Under state contract law which looks to the intent of the parties, explicit statement in the arbitration agreement that it was to be signed prior to being given effect or modified meant that omission of the drafters signature meant that there was no contract.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50341-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50341-CV0.pdf
Fourth Circuit:Sade Garnett v. Remedi SeniorCare of Virginia
Employer not liable for workplace defamation since it wasn't in the employer's interests, wasn't condoned by the employer, and it was outside the scope of the tortfeasor's employment; there are literally millions of workplace interactions.
http://www.ca4.uscourts.gov/opinions/171890.P.pdf
http://www.ca4.uscourts.gov/opinions/171890.P.pdf
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