DC Circuit: Cellco Partnership v. NLRB

When holding that employees dismissal for untruthfulness was pretextual, ALJ impermissibly intruded into business judgment by determining that other violations of company policy that were generally unpunished were more severe.

Discussions involving Section 7 matters are not categorically shielded from such rules.

https://www.cadc.uscourts.gov/internet/opinions.nsf/8BA86CC8FAF54C77852582B10051858A/$file/17-1158-1736658.pdf
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DC Circuit: FTC v. Boehringer Ingelheim Pharmace

Communication of business facts between employees and in-house counsel are subject to privilege where a significant provision of the communication is to obtain or provide legal advice; underlying data, however, is not protected with the communications.

https://www.cadc.uscourts.gov/internet/opinions.nsf/A81BAEEA3D756416852582B100518ADF/$file/16-5356.pdf
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DC Circuit: Electronic Privacy Information Center v. FAA

Drone organization doesn't have associational standing to challenge rulemaking, as the commercial concerns are largely outside the scope of the proposed rule, and the personal privacy concerns are speculative.

Also, no organizational standing, as bare assertion of not being able to inform its members is an insufficient showing.

 https://www.cadc.uscourts.gov/internet/opinions.nsf/DA5DA28557555A8C852582B100518571/$file/16-1297-1736670.pdf


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DC Circuit: Western Organization v. Ryan Zinke

No legal duty to conduct a further environmental review of the federal government's coal regulation scheme, as the adoption of the plan in 1985 was the major federal action that triggered the obligation of environmental review.

https://www.cadc.uscourts.gov/internet/opinions.nsf/FCE27F0BA64C40A1852582B100518555/$file/15-5294-1736645.pdf
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Federal Circuit: Sirona Dental Systems v. Institut Straumann

Patent something or other.  (Running a bit late today.)

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1341.Opinion.6-19-2018.pdf
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Tenth Circuit: Rodriguez v. FDIC

As now-bankrupt bank's contractual agreement with its now-bankrupt affiliated group is incredibly complex and ambiguous, the provision of the agreement mandating that any ambiguities be construed in favor of the bank means that there was only an agency relationship between the bank and the organization and the latter has no equitable title to the tax refund due the affiliated organization; the refund now belongs to the bank's FDIC receiver.

https://www.ca10.uscourts.gov/opinions/17/17-1281.pdf
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Tenth Circuit: Odom v. Penske Truck Leasing Co.

Remand to District Court after certified question to examine whether affiliated company had a persona distinct from the employer for purposes of workers compensation.

A motion to dismiss a suit in federal court on the basis that state law deprives state courts of the ability to hear a similar claim asserts not a lack of jurisdiction, but the invocation of a waiveable affirmative defense that should be construed as a motion for summary judgment.

https://www.ca10.uscourts.gov/opinions/17/17-6065.pdf
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Tenth Circuit: Lujan-Jimenez v. Sessions

In the state Trespass statute, the ulterior crime intended during the trespass is irrelevant to the theory of the offense -- a jury could convict under different theories of the ulterior crime.  The statute is therefore not susceptible to modified categorical review, which, in an immigration context, would have shifted the burden to the petitioner to establish that they had not trespassed in the vehicle to commit an ulterior offense that evinced moral turpitude.  Categorically, then, the statute isn't a valid predicate conviction for immigration purposes.

https://www.ca10.uscourts.gov/opinions/16/16-9555.pdf
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Tenth Circuit: Auto-Owners Insurance Company v. Csaszar

Exclusion of driver from specific vehicles under an auto insurance policy bars her recovery as a family member under the uninsured motorist provisions when the driver is injured in an accident not involving the scheduled vehicles.

Exclusion from no-fault coverage when excluded from regular policy doesn't violate public policy.

https://www.ca10.uscourts.gov/opinions/17/17-1075.pdf
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Ninth Circuit: ASARCO, LLC. v. Allied Industrial and Service Workers

If an employer concedes arbitrability of a question, an arbitrator reviewing a collective agreement that prohibits changes in arbitration may reform the terms of the agreement for mutual mistake, subject to rational basis review; such reformation does not offend public policy.

Dissent:  As the arbitrator's authority arises from the collective agreement, the no-add clause stripped the arbitrator of jurisdiction sufficient to amend.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/19/16-16363.pdf
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Seventh Circuit: Adam Delgado v. Merit Systems Protection Board

Where a regulation establishes that claimant has the burden to establish statutorily required administrative exhaustion, the Board cannot require that the employee prove that they typed something into a web form in order to establish jurisdiction.

As the statute only requires that the report must be of something reasonably believed to be a crime, there is no obligation on the reporter to establish all of the elements in the crime in the initial report, or to establish that the report to the Board was identical with the earlier report to internal special counsel.

The exhaustion required by the statute is accomplished by presenting a claim to the special counsel that a legally sophisticated reader could understand and investigate.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:16-1313:J:PerCuriam:aut:T:aOp:N:2173082:S:1
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Seventh Circuit: Kevin Carmody v. Board of Trustees of the University of Illinois

If a university official provides incorrect information to investigators, it doesn't, standing alone, present a due process issue for trial, as it doesn't affect the notice and fair hearing protections of due process.

University administrators and officers who would have no reason to doubt the proceeding are not liable for a pre-firing due process claim.

Absent specific waiver, claims against the Board of Trustees of a state university are barred by the state's sovereign immunity.

Denial of summary judgment cannot be challenged on appeal, as the matter of law was fact-bound, and the questions went to trial.

Defts did not waive privilege on inadvertently disclosed document, as production was reasonably diligent, and request for claw-back was timely.

Although plaintiff had no obligation to renew objection to in limine ruling excluding certain evidence, there was insufficient proffer beforehand to preserve the issue for appeal.  ("Deft construes?")

Although appeal was converted to interlocutory status on remand, and the court was therefore free to consider new documents, where these challenged the appellate holding, they needed to surmount the law of the case doctrine and the mandate doctrine.





 
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Seventh Circuit: Anthony Oliver v. Joint Logistics Managers, Inc

In a S1981 employment discrimination claim, A CBA provision allowing the employer to consider many factors in selecting employees for layoffs does not establish that the employer's use of seniority needs to be defended as nondiscriminatory.  (The burden doesn't shift.)

Allegation of discriminatory refusal to rehire is sufficiently rebutted by employer's contention that candidate's skills were insufficient.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1633:J:Kanne:aut:T:fnOp:N:2172953:S:0
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Seventh Circuit: Bennie Kennedy v. Schneider Electric

Impeachment evidence against claims of opposing witnesses did not rise to the clear and convincing level of deliberate perjury required for fraud on the court; they should have been raised on direct appeal or in a post-judgment motion.

Rule 11 sanctions upheld, as delay in filing couldn't be ascribed to a reluctance to assert such a thing against opposing counsel.

Motion for appellate sanctions needs to be raised in a separate motion; they can't just be mentioned in the briefing.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1786:J:Hamilton:aut:T:fnOp:N:2173108:S:0

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Seventh Circuit: Scott Milliman, Sr. v. William Prim

In a S1983 First Amendment retaliatory firing claim, outside contact with the medical examiner and an expert's criticism of their methodology is insufficient to raise a question of pretext for trial when a law enforcement officer is fired based on a medical review that was ordered after he made accusations of highly abnormal corruption in the office.

 http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2687:J:Flaum:aut:T:fnOp:N:2172987:S:0

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Seventh Circuit: USA v. Aaron Lamon

A weapons-possession count should not be grouped with a drugs count when tallying up the offense level during sentencing, as the weapons-possession charge incurs a statutory minimum term of imprisonment, removing the justification for such grouping.

Circuit split flagged, and doubled down upon.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2764:J:PerCuriam:aut:T:fnOp:N:2172766:S:0
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Fifth Circuit: USA v. Latroy Burris

State Robbery statute does not have violence as an element, and, as the relevant standard implies physical force as opposed to offensive touching, can be accomplished without the use of force; it is therefore not a valid ACCA predicate under the elements prong.



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Fifth Circuit: Leoncio Garcia v. Wal-Mart Stores Texas, L.L.C.

Where the defendant denies actual knowledge on a state premises-liability tort claim, circumstantial particularized evidence of the hazard's creation suffices to establish an issue for trial where the plaintiff's scenario is more reasonable than the defendant's alternative conjecture.

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Fifth Circuit: USA v. Karl Scott

@justicewillett

Conspiracy for Possession with Intent to Distribute doesn't require actual or constructive possession; it suffices that the deft formed an agreement for the others to possess the drugs, knew of that agreement, and voluntarily participated in it.

Aiding and Abetting on the same charge is established when deft associates with a criminal venture, ensures its occurrence, purposefully participated in the venture, and sought to make it succeed.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40552-CR0.pdf
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Fifth Circuit: Valero Marketing & Supply Co. v. M/V Almi Sun, IMO

Subcontractor cannot assert lien against vessel, as the vessel did not control the selection or the performance of the subcontractor, and under the statute, a lien only arises against a counterparty to a contract for necessities, or a subcontractor whose selection or performance was controlled by the vessel.

Dissent: There was implicit approval of the selection of the subcontractor.  Disputed question of whether this creates a circuit split.

http://www.ca5.uscourts.gov/opinions/pub/16/16-30194-CV0.pdf
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