Good to get back into the batting cage for a few days after finishing the dissertation. As there are some other matters arising in the coming week, this will be, at minimum, the last update of the week. Cheers.
-CB
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: Leon Carmichael, Sr. v. USA
Sufficient evidence in record that deft might not have accepted the offer of 20 years; consultations with counsel were after the fact. General post-trial and totality claims similarly insufficiently supported.
Tenth Circuit: Frappied v. Affinity Gaming Black Hawk
Mixed claims sounding in both gender and age are cognizable under Title VII.
Clam sufficiently states the age and gender claim by reciting the gender of the plaintiffs and that they are older than 40.
~96% chance of firings being non-random across age and gender suffices to create a plausible inference of discrimination.
Even given the statistical possibility of discrimination, no facts raising an inference of discrimination on the basis of gender were pleaded, so the non-random employment actions are susceptible of other explanations.
Given statistical analysis of terminations and the demographics of the new employees hired, the suit states a claim for disparate impact under the ADEA.
Median ages of terminated and new employees suffice to state a claim for disparate treatment under the ADEA, but employer met the burden of producing a nondiscriminatory basis. Sufficient issue for trial on whether these post-hoc rationales were pretextual.
Tenth Circuit: Zahourek Systems v. Balanced Body University
There is a genuine dispute for trial as to whether the anatomical model is a useful article under the copyright law, since the question is not the tactile uses to which it might be put in an educational context, but rather whether its usefulness arises from the fact that it correctly depicts the human frame.
Ninth Circuit: Gonzalo Dominguez v. William Barr
State drug statute criminalizing manufacture and delivery is divisible, as the two are different elements, not different means.
Under modified categorical review, the statute is a valid predicates, since the state's inclusion of "conversion" in the definition of drug manufacture overlaps the federal definition of "production."
Board's adjudication took sufficient consideration of the particulars of the case.
Issue of defective notice, promptly remedies, was not jurisdictional.
Ninth Circuit: Linda Larson v. Andrew Saul
Skidmore deference to agency determination that military employment in the civilian sector is not within a SSA exception for wages earned wholly through military service. Circuit split flagged.
Ninth Circuit: Michael Peirce v. Douglas Ducey
State citizen has insufficient concrete or personal harm to challenge state constitutional reallocation of assets held in trust by the state, claiming that the constitutional amendments violate the terms of the trust as defined in the federal enabling legislation.
The voluntary cessation to mootness would not apply in such a case if Congress were to ratify the change, since the alleged transgressor is the state, not the federal government.
Although there is insufficient basis for a private right of action under the federal statute, the bar is not necessarily a jurisdictional one.
Seventh Circuit: Dawn Hanson v. Chris LeVan
Allegations of politically motivated dismissal state a claim where bias is credibly alleged, and according to statute and practice, the position involved access to neither policymaking deliberations nor the politically sensitive work of the elected official.
To state a claim of a clearly established right, there is an important distinction between a murky area of the law and a well-developed but complex area of the law -- the latter allows an easier inference at the pleading stage.
Seventh Circuuit: USA v. Robert Hosler
Sufficient evidence of enticement under the statute where statements seem to provoke the illegal conduct -- there is no requirement that the victim's will has to be overcome.
Seventh Circuit: USA v. Elleck Christopher Vesey
Although the state offense serving as an ACCA predicate is divisible, either prong would require that the victim be close enough to have the prospect of imminent physical harm, making the state crime a valid predicate due to its elements. General intent crimes can serve as predicate offenses.
Sixth Circuit: United States v. Raheim Trice
Deft's subjective expectation that the unlocked common hallway outside his apartment door was within the curtilage of his residence was objectively unreasonable, as deft had insufficient control over the space.
Placement of a hidden camera on the hallway wall opposite the deft's door did not violate the right to privacy, as it only recorded when the deft's door was opened, only short clips of video were filmed, and the deft would not have had the power to exclude law enforcement from being there and observing the same acts, even for extended periods.
Fifth Circuit: Kevin Santos-Alvarado v. William Barr, U. S. Atty
Petitioner's explanations of inconsistencies in testimony are reasonable, but they do not compel a finding that the Immigration judge's finding of adverse credibility was one that no reasonable jurist would make.
IJ's bar on telephonic testimony didn't violate due process, as the testimony wouldn't have been dispositive, and the IJ reviewed the witness' written statement.
Fifth Circuit: USA v. Herman Sanders, et al
Dissent:
Quoting state penalty phase closing: “It’s an incredibly sad tribute that when a man’s life is on the line, about the only good thing we can say about him is he’s a good artist.”
State waived AEDPA bar on new evidence in federal collateral challenge.
Precedent on reasonable probability isn't tied to the facts of each case -- they don't present a minimum threshold for the showing.
Substantial argument that deft killed only under threat of his own death.
Fifth Circuit: USA v. Charles Davis
On SCtUS remand for plain error review -- although the deft didn't forfeit the challenge to the imposition of concurrent statutes, the acts were arguably dissimilar and irregular enough to avoid the statute's scope, and the temporal link is thin, ergo: no abuse of discretion in imposition or level of explanation of concurrent sentences.
Fifth Circuit: USA v. Herman Sanders, et al
Rivals might have been appropriately joined, as they were involved in the same acts or transactions, but no actual prejudice, given curative instruction and the fact that the potentially prejudicial testimony was a small part of the total.
Required scienter encompasses all of the elements -- "knowingly" implies that the deft knew that the victims were minors. Lack of proof of this at trial made for a constructive amendment to the indictment.
Fourth Circuit: Darlene Gibbs v. Haynes Investments, LLC
Delegation clause in arbitration agreement can be judicially reviewed where the challenge is to that clause specifically, and the challenge is made with sufficient force and specificity.
Tribal arbitration agreement is a prospective waiver of federal statutory rights where it indicates that tribal law will preempt contrary federal law.
Tribal code with civil damages provision allowing compensation of actual harm doesn't sufficiently vindicate RICO treble damages right.
Fourth Circuit: Eugene Baten v. Henry McMaster
No vote dilution, as the state is a unit, and each vote within it is equally counted; this structure is baked into the Constitution, and reflected in the tiebreaking procedure in the House, where each state gets a single vote.
Freedom of Association right derives from the right to associate with the party of one's choice, not from the party's chances, or the expectation that the national party will pay much attention to you.
VRA S2 and Gingles challenge falls short, since there is not prospect of a minority majority district, the poll is for electors, not the ultimate candidates, and minority voters have equal opportunity to select candidates of their choice.
Third Circuit: USA v. Eric Seighman
Supervised release mandatory sentencing statute does not violate the 6th Amendment trial right, since it includes non-criminal offenses, and the one-day mandatory minimum isn't significant enough to raise constitutional concerns, and if it were, there would be no plain error in this case, since the sentence was well in excess of the minimum.
Apprendi challenge along similar lines foreclosed by precedent.
First Circuit: TLS Mgmt. and Mktg. Ser. LLC v. Rodriguez-Toledo
A client file compiled by an asserted secret process containing asserted secret insights is not itself protected as a trade secret absent a division of public and nonpublic material within it and a specific claim for certain nonpublic material or processes.
A claim of trade secret for a business process must establish more than the fact that it is not known -- the claim must also establish that it is not ascertainable from public sources.
Nondisclosure agreements implicate the same public policy concerns of the forum state as do non-compete clauses. Here, the agreements' broad scope, including general knowledge acquired on the job, particular knowledge acquired that was already public knowledge, and information provided by third parties, make the agreements unenforceable under the public policy exception. Courts will not rewrite or narrow the contract, so the nondisclosure agreement is void in its entirety.
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