Prudential remand to consider non-instituted grounds is appropriate when those grounds were raised in the petition.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1180.Motion_Panel_Order.7-2-2018.1.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.
DC Circuit: Ashbourne v. Hansberry
As both the earlier administrative proceeding and the earlier Article III proceeding permitted joinder of the EEOC claim to the civil suit, Title VII claim rooted in the same nucleus of facts is barred under res judicata.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A7A90C4B0D21BC8A852582BB0050FB8F/$file/17-5136.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/A7A90C4B0D21BC8A852582BB0050FB8F/$file/17-5136.pdf
DC Circuit: St. Francis Medical Center v. Azar
Regulation prohibiting revisiting of predicate factual determinations beyond three years in agency reopening proceeding does not prohibit revisiting such factual determinations in statutory direct appeals to the Board.
https://www.cadc.uscourts.gov/internet/opinions.nsf/5B15C6CE526BEB92852582BB00512041/$file/17-5098.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/5B15C6CE526BEB92852582BB00512041/$file/17-5098.pdf
DC Circuit: Jennifer Campbell v. DC, et al
Motions during trial claiming that petitioner had suffered insufficient harm under the statutory tort did not preserve a claim that the theory of harm found by the finder of fact was in fact based in the events alleged in the claim rejected by the finder of fact.
Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf
Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf
DC Circuit: USA v. Gregory Sitzmann
Consideration of extraterritorial conduct did not violate the presumption against extraterritoriality, given the domestic elements of the conspiracy.
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf
Tenth Circuit: Barton v. Hunter
As petitioner is not in custody, denial of parental custody does not state a claim for Habeas relief under the statute.
https://www.ca10.uscourts.gov/opinions/18/18-5016.pdf
https://www.ca10.uscourts.gov/opinions/18/18-5016.pdf
Ninth Circuit: Pinkette Clothing v. Cosmetic Warriors
Although laches is not available against a copyright or patent claim within the term of the statute, the Lanham Act provides a five year period to equitably challenge a mark, after which a challenge is still available on other grounds. Laches, as an equitable defense, is therefore available as a defense within the initial five year term.
No error in finding that the claim was equitably barred, given showing that most analogous state statutes of limitations had expired.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/29/17-55325.pdf
No error in finding that the claim was equitably barred, given showing that most analogous state statutes of limitations had expired.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/29/17-55325.pdf
Eighth Circuit: US v. Kevin Morrisey
Plain error not to instruct jury that Possession, as a lesser included offense of Receipt, could not be proved with respect to the same items.
Improper venue claim waived by counsel at trial.
Shift in the theory of the offense that would have encompassed crimes outside of the court's jurisdiction did not constitute a constructive amendment of the indictment, as venue is not an essential element of the offense.
Plain error to admit spreadsheet with list of images with outside expert hearsay commmentary, but no prejudice.
No prejudice from statement in closing that implied that files could be received by when internally transferred.
http://media.ca8.uscourts.gov/opndir/18/06/172157P.pdf
Improper venue claim waived by counsel at trial.
Shift in the theory of the offense that would have encompassed crimes outside of the court's jurisdiction did not constitute a constructive amendment of the indictment, as venue is not an essential element of the offense.
Plain error to admit spreadsheet with list of images with outside expert hearsay commmentary, but no prejudice.
No prejudice from statement in closing that implied that files could be received by when internally transferred.
http://media.ca8.uscourts.gov/opndir/18/06/172157P.pdf
Eighth Circuit: Garcia-Mata v. Sessions
Board holding that contradicted Immigration Judge's findings of fact without claiming clear error was contrary to it's interpretation of its own jurisdiction and the principle that holdings must be stated clearly; citing the regulation that allows for different standards of review in different situations does not sufficiently establish the claim of clear error.
http://media.ca8.uscourts.gov/opndir/18/06/171682P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/171682P.pdf
Eighth Circuit: US v. Kwame Askia
Federal embezzlement statute is not a continuing offense; once the threshold has been reached, the offense is complete. For purpose of the stature of limitations, however, so long as the limit is reached within the relevant timeframe, the fact that the offense began earlier doe not bar the indictment.
No plain error in introduction of evidence of theft outside the statute of limitation's timeframe; no sixth amendment claim arising from pro se / standby.
Hearsay claim arising out of pretrial detention hearing moot. No 6A claim.
Sufficient evidence.
http://media.ca8.uscourts.gov/opndir/18/06/171515P.pdf
No plain error in introduction of evidence of theft outside the statute of limitation's timeframe; no sixth amendment claim arising from pro se / standby.
Hearsay claim arising out of pretrial detention hearing moot. No 6A claim.
Sufficient evidence.
http://media.ca8.uscourts.gov/opndir/18/06/171515P.pdf
Seventh Circuit: Isaac Capps v. Kevin Drake
Sua sponte referral of postjudgment motion to another court is within the inherent authority of the court.
Whatever the legal status of the fee agreement, error to deny fees under S1988 where petitioner's primary interest is the vindication of the claim and the award is not de minimis; the fact that the award was under the last settlement offer does not negate the basis for the award.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:17-1876:J:Kanne:aut:T:fnOp:N:2179169:S:0
Whatever the legal status of the fee agreement, error to deny fees under S1988 where petitioner's primary interest is the vindication of the claim and the award is not de minimis; the fact that the award was under the last settlement offer does not negate the basis for the award.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:17-1876:J:Kanne:aut:T:fnOp:N:2179169:S:0
Seventh Circuit: Chicago Joe's Tea Room, LLC v. Village of Broadview
Denial of equitable relief can suffice for interlocutory appeal despite pendent unresolved damages.
Sufficient standing for the owner where owner leases to a party who leases to another party for use barred by the action in question.
Claim arising from municipality's barring of the use is moot, as the lessee's planned use would always have violated governing law, so enforcement of the municipal regulation is not barred by the vested rights doctrine; an earlier finding of licit use does not bind under law of the case, as it is a subjective, discretionary consideration of jurisdiction, and there is no indication that the earlier finding considered the relevant statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:16-1989:J:Hamilton:aut:T:fnOp:N:2178625:S:0
Sufficient standing for the owner where owner leases to a party who leases to another party for use barred by the action in question.
Claim arising from municipality's barring of the use is moot, as the lessee's planned use would always have violated governing law, so enforcement of the municipal regulation is not barred by the vested rights doctrine; an earlier finding of licit use does not bind under law of the case, as it is a subjective, discretionary consideration of jurisdiction, and there is no indication that the earlier finding considered the relevant statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:16-1989:J:Hamilton:aut:T:fnOp:N:2178625:S:0
Sixth Circuit: United States v. Marcus Fleming
Plain procedural error in sentencing where the court bases an upward variance on extrinsic evidence first revealed at sentencing, and the deft is not given a meaningful opportunity to dispute the veracity or relevance of that evidence.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0129p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0129p-06.pdf
Sixth Circuit: Rita McDaniel v. Upsher-Smith Laboratories, Inc.
Where the claim arises from a state product liability statute that looks to the federal guidelines as to the level of medical warnings to be provided, a claim under the tort based on the omission of the warning is impliedly preempted by federal law.
Concur/dissent (CJ) -- Violation of the federal statute is not a necessary element of the claim, so not preempted. Learned intermediary doctrine does not save defts.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0128p-06.pdf
Concur/dissent (CJ) -- Violation of the federal statute is not a necessary element of the claim, so not preempted. Learned intermediary doctrine does not save defts.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0128p-06.pdf
Fifth Circuit: Kymberli Gardner v. CLC of Pascagoula, L.L.C.
In a Title VII action for hostile work environment, when an employer becomes aware of harassing or violent conduct by a thord party, it has an obligation to attempt a remedy.
A wrongful termination action under the same statute presents an issue for trial where the protected activity is a refusal to deal with the harassing third party and there is a showing of direct evidence associating the refusal with the firing.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60072-CV0.pdf
A wrongful termination action under the same statute presents an issue for trial where the protected activity is a refusal to deal with the harassing third party and there is a showing of direct evidence associating the refusal with the firing.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60072-CV0.pdf
Fifth Circuit: Fisk Electric Company v. DQSI, L.L.C.
As the rights and liabilities arising from claims on a contract to construct a federal building are derivative of federal statutes, federal law governs a claim of fraudulent inducement.
As the federal common law of contracts mirrors the common law, the Restatement standard of de minimis burden to investigate fraudulent inducement, the claim presented a genuine issue of material fact where a party made reasonable attempts to gain the relevant documents through FOIA requests.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30091-CV0.pdf
As the federal common law of contracts mirrors the common law, the Restatement standard of de minimis burden to investigate fraudulent inducement, the claim presented a genuine issue of material fact where a party made reasonable attempts to gain the relevant documents through FOIA requests.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30091-CV0.pdf
Fifth Circuit: Fallon Family, L.P. v. Goodrich Petroleum Corp.
Under state law, where a continuing contractual scheme of payments for a mineral lease is not reflected in the property's recordation, a party to the contract cannot exercise the power of dissolution against the debtor-in-possession counterparty otherwise liable for the pre-petition payments, as the latter has acquired the status of bona fide puchaser for value.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20278-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20278-CV0.pdf
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