Employer bargained to lawful impasse, since the award of back pay at the time of impasse met the regulatory requirements. Parties had sufficient notice of the issues for jurisdiction.
Dissent: Employer improperly conflated the back-pay issue with other issues, and since the timing of the impasse determines the back-pay, simple declaration of impasse at a time when the disbursement was likely to be lawful doesn't establish that the impasse was per se lawful, since the bargaining that produced it seemed to put the back-pay in peril. No jurisdiction over this claim, as the employer didn't raise it.
https://www.cadc.uscourts.gov/internet/opinions.nsf/76C77F8449B89631852582C200522637/$file/16-1328-1739390.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
DC Circuit: John Taylor v. FAA
An agency rule defining a certain class of model aircraft does not contradict the safe-harbor from an earlier law, as it imposes no more restrictions on the devices than does the earlier law.
Law did not implicitly incorporate an agency regulatory structure that exempted model aircraft; the provisions of the statute empowering the agency to regulate unmanned craft, read in conjunction with the definition of model aircraft within the safe-harbor provision, provides sufficient authority.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E7D324AB37D6FC46852582C20052C10E/$file/16-1302.pdf
Law did not implicitly incorporate an agency regulatory structure that exempted model aircraft; the provisions of the statute empowering the agency to regulate unmanned craft, read in conjunction with the definition of model aircraft within the safe-harbor provision, provides sufficient authority.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E7D324AB37D6FC46852582C20052C10E/$file/16-1302.pdf
DC Circuit: American Rivers, et al v. FERC, et al
Association's members' desire to observe the diversity of the river is sufficient injury for standing. Future deterioration is redressible.
A claim that omits to specifically challenge certain regulations can be read to challenge them, given the context, the motion to consolidate, and the discussion of issues; additionally, no prejudice.
Agency opinion arbitrarily disregarded the degree to which degraded baseline conditions imperiled existing species.
A perfunctory provision authorizing subsequent reconsideration if the fishing take exceeded 100% of a given species was an unlawfully vague trigger point.
Agency hard look didn't sufficiently consider present and cumulative harms.
https://www.cadc.uscourts.gov/internet/opinions.nsf/8CE28752AC62F25A852582C200528B2B/$file/16-1195.pdf
A claim that omits to specifically challenge certain regulations can be read to challenge them, given the context, the motion to consolidate, and the discussion of issues; additionally, no prejudice.
Agency opinion arbitrarily disregarded the degree to which degraded baseline conditions imperiled existing species.
A perfunctory provision authorizing subsequent reconsideration if the fishing take exceeded 100% of a given species was an unlawfully vague trigger point.
Agency hard look didn't sufficiently consider present and cumulative harms.
https://www.cadc.uscourts.gov/internet/opinions.nsf/8CE28752AC62F25A852582C200528B2B/$file/16-1195.pdf
DC Circuit: John Croley v. Joint Committee on Judicial Administration
District Court has jurisdiction over claim alleging that DC Courts mismanaged tort recovery of plaintiff, since the claim sounds in tort and presents freestanding claims under the Federal Constitution; the claim doesn't amount to an attempt to revisit the earlier state court judgment, as the plaintiff prevailed in the DC action.
https://www.cadc.uscourts.gov/internet/opinions.nsf/20FB3AD02C5D887D852582C200529F33/$file/15-5080.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/20FB3AD02C5D887D852582C200529F33/$file/15-5080.pdf
DC Circuit: Sierra Club, et al v. EPA, et al
Agency finding that it was established that a certain emission was not a carcinogen was not based on substantial evidence, as the agency merely searched the literature for proof that it was carcinogenic.
Agency use without a safety margin of a "low confidence" metric beneath comparable state regulations presents an issue for trial.
Petitioners were not required to demonstrate that any given adjustment of the data was unreasonable; the agency needed to explain its rationale for the adjustments.
Agency discretion in setting pollution levels for each category can't be given to the manufacturer by defining several levels for each category; the statute requires the agency to set the levels.
Agency use of a synthetic area source to set the allowable levels for the category wasn't contrary to statute, as the source is within the category as defined.
As industry didn't sufficiently explain why some sources performed surprisingly well, agency's exclusion of some sources wasn't arbitrary or capricious.
Substantial evidence for agency finding that coming innovations will allow industry to meet standard without raw material substitutions.
Tile-making organization does not have sufficient Article III standing to intervene in judicial review of smokestack rulemaking absent some showing that its members will be harmed by the pending rule.
https://www.cadc.uscourts.gov/internet/opinions.nsf/B42E4D7405452F66852582C200525ACE/$file/15-1487.pdf
Agency use without a safety margin of a "low confidence" metric beneath comparable state regulations presents an issue for trial.
Petitioners were not required to demonstrate that any given adjustment of the data was unreasonable; the agency needed to explain its rationale for the adjustments.
Agency discretion in setting pollution levels for each category can't be given to the manufacturer by defining several levels for each category; the statute requires the agency to set the levels.
Agency use of a synthetic area source to set the allowable levels for the category wasn't contrary to statute, as the source is within the category as defined.
As industry didn't sufficiently explain why some sources performed surprisingly well, agency's exclusion of some sources wasn't arbitrary or capricious.
Substantial evidence for agency finding that coming innovations will allow industry to meet standard without raw material substitutions.
Tile-making organization does not have sufficient Article III standing to intervene in judicial review of smokestack rulemaking absent some showing that its members will be harmed by the pending rule.
https://www.cadc.uscourts.gov/internet/opinions.nsf/B42E4D7405452F66852582C200525ACE/$file/15-1487.pdf
Ninth Circuit: Tamplin v. Muniz
Petitioner's desire to represent himself was sufficiently unequivocal in rejecting all public defenders and stating that he couldn't afford private counsel. State Habeas denial grounded on the timeliness of the request for self representation was contrary to, or an unreasonable application of federal constitutional law, as there was a clear right to self-representation, since the request was made some weeks before trial. Appellate counsel provided ineffective assistance, as second pro-se request hadn't been included in the appellate record.
Dissent: "Weeks before trial" is too vague to say that no reasonable jurist could have denied the habeas. Brief appearance of private counsel presented timing problems and put into question the unequivocal nature of the request.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf
Dissent: "Weeks before trial" is too vague to say that no reasonable jurist could have denied the habeas. Brief appearance of private counsel presented timing problems and put into question the unequivocal nature of the request.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf
Ninth Circuit: Chuck Close v. Southeby's Inc.
Express preemption provision in the 1976 Act, together with the provisions on distributions and first sale, preempt state law requiring royalties to the original artist on subsequent sales. Statements of subsequent Congress as to the preemption implied by VARA can't be imputed to the earlier law. Earlier precedent establishing that the 1909 Act did not preempt these claims incorporated common-law notions of distribution and first sale, and is therefore still viable for those claims.
Substantive Due Process undercuts Takings argument, but ultimately a question for remand.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-56234.pdf
Substantive Due Process undercuts Takings argument, but ultimately a question for remand.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-56234.pdf
Eighth Circuit: United States v. Terance Morice Highbull
Police officer's question "Do you have the phone" was insufficient to establish that the private citizen was an agent of law enforcement when she searched the vehicle for the phone, as the search was not requested, and the citizen had sufficient private motive to look for the phone.
Eighth Circuit: Mike Winn v. Commissioner, Social Security
It was within the ALJ's discretion to accept specialist medical opinions rather than that of the longtime treating physician.
http://media.ca8.uscourts.gov/opndir/18/07/171987P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171987P.pdf
Eighth Circuit: United States v. Jeffrey Joseph Pendleton
Given circuit precedent, state Assault statute prohibiting causing the fear of illness or injury is a valid predicate violent crime.
http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf
Eighth Circuit: Sheldon Thompson v. Ray Singleton
Denial of qualified immunity upheld, as the characterization of the petitioner as confrontational was a contested fact for trial, and therefore couldn't be used to establish that there was no controlling precedent prohibiting the officer's tasing of the petitioner.
http://media.ca8.uscourts.gov/opndir/18/07/164080P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/164080P.pdf
Sixth Circuit: James Lossia, Jr. v. Flagstar Bancorp, Inc.
Checking account agreement's incorporation of the rules of the financial transfer system meant that it did not breach the agreement by processing the transactions in the order in which they were presented for payment, as opposed to the order in which the customer initiated them.
Automated imposition of a number of overdraft fees exceeding the agreement's limit did not breach the agreement, as there was a policy of manually correcting the overage on the next business day.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0133p-06.pdf
Automated imposition of a number of overdraft fees exceeding the agreement's limit did not breach the agreement, as there was a policy of manually correcting the overage on the next business day.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0133p-06.pdf
Fifth Circuit: Atchafalaya Basinkeeper, et al v. U.S. Army Corps
Agency's mitigation analysis was sufficient, as the project did not have a significant environmental impact. Use of external mitigation credits was sufficiently explained within the agency's decisionmaking process. Corps recitation of potential cumulative impacts sufficed to establish consideration of cumulative impact.
http://www.ca5.uscourts.gov/opinions/pub/18/18-30257-CV0.pdf
Fifth Circuit: In-N-Out Burger, Incorporated v. NLRB
As the company could not demonstrate that it was trying to create a theatrical reality in the fast-food restaurant, the prohibition on the wearing of advocacy buttons infringed the Act; ALJ's findings on the sturdiness and safety of the button designs was reasonable.
Argument that subsequent buttons might be less safe and fall into the hamburgers was waived, as it wasn't raised before the Board.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60241-CV0.pdf
Argument that subsequent buttons might be less safe and fall into the hamburgers was waived, as it wasn't raised before the Board.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60241-CV0.pdf
Fourth Circuit: Felicia Strothers v. City of Laurel, Maryland
Executive's statement that supervisor wanted to hire someone of a different race, combined with disparate treatment, suffices to establish a genuine issue of material fact as to whether the employee's subsequent complaint was motivated by perceived racial discrimination and therefore protected activity.
http://www.ca4.uscourts.gov/opinions/171237.P.pdf
http://www.ca4.uscourts.gov/opinions/171237.P.pdf
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