Federal Circuit: Polara Engineering v. Campbell Corp.

The pedestrian signals were in beta, the jury was instructed correctly, the infringement was sufficiently willful, but remand for damage in light of the beta trials issue.

Reminder: Of the many things that we strikingly don't know, Patent is among the most striking.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1974.Opinion.7-10-2018.pdf
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DC Circuit: Alan Philipp v. Federal Republic of Germany

Intrastate expropriation of art rises to the level of genocidal act where the taking is in furtherance of a plan to deny a people sufficient resources to survive as a people, including wealth and articles of commerce; under the FSIA, the obligation to prove the contrary is with the state.

Insufficient nexus for the state defendant.

There is no statutory exhaustion requirement for expropriation in the FSIA; questions of international comity are best addressed by Congress.

As there is no direct conflict between the aims of state tort actions and the FSIA, the former are not preempted.



 
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DC Circuit: Delaware Riverkeeper Network v. FERC

Implied right of action for riparian denizens under the statute to challenge power plant construction.

Clean air, water and environment is not property or liberty for which due process of law would be required before deprivation.

Funding structure of the commission does not, on its face, violate the constitution; review and tolling procedures are within the statute.

https://www.cadc.uscourts.gov/internet/opinions.nsf/2FEE744A69F0676F852582C600521EA8/$file/17-5084-1739812.pdf


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DC Circuit: Secretary of Labor v. Consolidation Coal Company

ALJ impermissibly incorporated likelihood-of-injury consideration, including many extrinsic factors, in deciding whether it was a sufficiently bad thing that the mine roof fell in.

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DC Circuit: Delaware Department of Natural Resources v. EPA

State's comments in notice and comment period were not specifically contrary to its positions in the present litigation; it therefore has standing to raise the challenge.

Plain meaning of the statute presents insufficient ambiguity to permit a challenge arising from context.

Evidence of a state's extrinsic noncompliance is insufficient basis to hold that the agency's decision that the state's lack of enforcement actions indicated compliance with the plan was arbitrary or capricious.

As the act is an exercise in cooperative federalism, agency was within rights in accepting state's assertion of compliance.

https://www.cadc.uscourts.gov/internet/opinions.nsf/A1B19B3B5B48B063852582C600523288/$file/16-1230.pdf




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DC Circuit: Veritas Health Services, Inc. v. NLRB

Given the initial delay, a three-month delay categorically does not backdate the certification year; Board did therefore not err in quashing subpoenas to look for evidence of delay.

Board did not abuse discretion in holding that the per se effects of unfair labor practices outweighed single comment to the contrary in the record when considering effect on certification election; insufficient showing that subpoena quash prevented discovery of facts relevant to the certification election.

No futility exception for motions to the Board for reconsideration.

Challenged remedies upheld.

No error in denial of permission to intervene, since intervenor had options under the act, and the limitations of the remedy don't rise to constitutional levels.

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DC Circuit: James Roberts v. NTSB

The clock for a petition for fees under the statute starts with the final judgment, not with the subsequent final agency resolution.

https://www.cadc.uscourts.gov/internet/opinions.nsf/4D6C022174310506852582C600521ED6/$file/14-1022-1739804.pdf
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Eleventh Circuit: William B. Newton, et al v. Duke Energy Florida, LLC, et al

Domestic customers of a utility in a regulated monopoly are outside the zone of interests of the Dormant Commerce Clause where the local utility is not subject to competition with out-of-state utilities.

State laws promoting the construction of nuclear power plants are not preempted by federal legislation.

While request for leave to amend in response brief was permissible, the description of the amendment wasn't sufficient to allow the court to consider the motion.

http://media.ca11.uscourts.gov/opinions/pub/files/201710080.pdf


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Tenth Circuit: Moya v. Garcia

Panel rehearing order and amended opinion.

https://www.ca10.uscourts.gov/opinions/17/17-2037.pdf
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Tenth Circuit: Canyon Fuel Company v. Secretary of Labor

Although deference is due to the agency's resolution of an ambiguous provision in the statute by clarifying that conditions outside of the mine escape must be considered in evaluating its compliance with the regulation, the agency's decision was not supported by substantial evidence, since no formal evaluation of the two escape routes in light of these criteria was conducted.

https://www.ca10.uscourts.gov/opinions/17/17-9541.pdf
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Ninth Circuit: US v. Hernandez

Distribution of the image to the 17 year old minor depicted in it suffices to establish distribution for the purpose of the sentencing enhancement.

Sentencing statement by the judge that emphasized the defendant's decision to go to trial before imposing a 284 month sentence improperly infringed on deft's Sixth Amendment right to trial.

Dissent: This would be a procedural error, which deft doesn't raise, and court conflates.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf


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Ninth Circuit: Goudelock v. Sixty-01 Ass'n

Chapter 13 of the Act does not provide an exception to discharge for post-petition associational assessments.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/16-35384.pdf


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Eighth Circuit: Michael Holmes v. Bobby Lee Garrett

Evidence of plaintiff's prior convictions properly excluded in S1983 claim, as a "mere presence" defense does not open the door for an examination of the plaintiff's truthfulness in a S1983 suit; the question being tried is the conduct of the officer.  Additionally, not probative of plaintiff's truthfulness.

Admission of prosecutor's testimony about deft's guilty pleas, if error, not prejudicial.  Physician expert had appropriate foundation. Sufficient evidence for conspiracy, given pre-existing working relationship; sufficient evidence for state tort claims.

Conspiracy instruction did not lower the threshold; court did not err in adding a definition of "instigate" to the standard instruction; damages can be prospective under state law.

http://media.ca8.uscourts.gov/opndir/18/07/171309P.pdf


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Eighth Circuit: Chantel Courtney v. Commissioner, Social Security

An ALJ has no obligation to inquire into the basis of vocational expert's going beyond the terms of the job guide so long as the extra elements do not conflict with the terms of the job guide.

http://media.ca8.uscourts.gov/opndir/18/07/171777P.pdf
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Seventh Circuit: Roy Mitchell, Jr. v. Kevin Kallas

There is a genuine issue for trial where a sufficiently controlling prison physician completely denies treatment for gender issues due to the short time remaining in sentence.  Where parole conditions do not preclude such treatment, allegations that parole officers blocked treatment for gender issues presents an issue for trial.  Where disparate theories of harm arising from both incarceration and post-release restrictions have a common factual basis, a single action is permissible under statute.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:16-3350:J:Wood:aut:T:fnOp:N:2184144:S:0
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Seventh Circuit: USA v. Ronald Norweathers

As the prosecution might legitimately have expected that deft would say that someone else sent the files, court's admission of uncharged emails was not unduly prejudicial; the emails were also not used to establish propensity, as the primary fact asserted was the identity of the emailer.  If error, harmless, given other evidence.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-1311:J:Bauer:aut:T:fnOp:N:2184049:S:0
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Seventh Circuit: Jon Giles v. Gabrielle Tobeck

The actions of a prison guard who mistakenly unlocked a section of cells and negligently relied on an inmate to voluntarily return to a cell unescorted did not rise to the level of deliberate indifference vis-a-vis the subsequent fisticuffs.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-1707:J:PerCuriam:aut:T:fnOp:N:2184277:S:0
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Seventh Circuit: Theresa Mason-Funk v. City of Neenah

Qualified immunity for police officers who killed an innocent person during a hostage situation, as the only circuit precedent holding that officials have a duty of care in such a situation was subsequently vacated as moot.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-3380:J:Bauer:aut:T:fnOp:N:2184309:S:0
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Sixth Circuit: Teresa Barry v. James O'Grady

Court has no jurisdiction over interlocutory appeal as to denial of qualified immunity when the petition argues disputed facts; any theory of appeal that holds that there is no issue for trial must construe any disputed facts in favor of the opposing party.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0136p-06.pdf
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Sixth Circuit: Larry Slusser v. United States

Knowing and voluntary appeals waiver in plea deal forfeited the right to challenge a sentence that, given subsequent developments in the law, has become in excess of the statutory maximum sentence for the crime.  Circuit precedent to the contrary was dicta.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0136p-06.pdf
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Sixth Circuit: In Re: Estate of Jerry West v. U.S. Dep't of Veterans Affairs

As the state court lost jurisdiction over the matter when the district court took it up, common-law probate remand to the state court had no basis, as there was no dual jurisdiction to resolve.  Also, state court did not have jurisdiction over claim, due to statutory administrative review procedures.

Dissent: Statute requires District Court to remand; District Court has no power to examine state forum's basis for jurisdiction.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0134p-06.pdf



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Fifth Circuit: Arthur Mitchell v. City of Naples, et al

To present a genuine issue of material fact for trial as to the qualified immunity of the defendants in a wage discrimination claim, the plaintiff must present valid comparators with substantially similar positions.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40737-CV0.pdf
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Second Circuit: Massey v. United States

Habeas petition is untimely when petitioner was sentenced under an earlier-abrogated provision of the law that established certain crimes as predicate convictions based on the use of force, but petitions for relief under a subsequent holding of the Supreme Court as to the residual clause of the same law, since only the latter announced a substantive change in the law.

http://www.ca2.uscourts.gov/decisions/isysquery/d97b88cf-c722-4c12-a6fc-67b8ddb371fe/1/doc/17-1676_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d97b88cf-c722-4c12-a6fc-67b8ddb371fe/1/hilite/
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