Federal Circuit: Akpeneye v. US

 

The appropriate test in this context for work under the statute is whether there are either substantial duties or a substantial amount of time and effort controlled or required by the employer and primarily for the benefit of the company, rather than whether there is complete relief from duty.

Legal conclusions given in deposition testimony on employment conditions are presumptively not binding on the deponent entity.

While standby duties can rise to the level of actual work, here, since duty posts were covered, breaks could be taken away from public access, and there was a system for compensating employees if both break times during the day were interrupted, the standby duties didn't justify a clam for overtime.

Restriction that the employees had to remain in uniform and on the premises did not cause their breaks to primarily benefit the employer.flsa

Akpeneye v. US

Federal Circuit: Santos v. NASA

 

Agency had an obligation to establish by substantial evidence that the employee's performance was subpar both after the notice of potential dismissal and before the notice of potential dismissal.  Upon sufficient showing, the burden would then shift to the employee to establish discriminatory motive.

When the employee asserted that the performance report was due to protected military service commitments, administrative review had an obligation to assess the relevant factors, rather than just saying that the case hadn't been made.

Santos v. NASA

Fourth Circuit: US v. Mohamad Khweis

 Sufficient attenuation in time, place, and interrogators between un-Mirandized US law enforcement intelligence questioning of US citizen in the custory of a foreign state and subsequent Mirandized admissions.  Belief that admission of guilt to a US crime was a necessary condition of being released to US custody did not make the Mirandized statements involuntary.

Conspiracy to provide support to enemy force does not involve use of force sufficient to qualify as a crime of violence.

Concur/dissent: given duration of initial interrogation, attenuation in time and place within a deliberate two-step was insufficient, deft should have been told of inadmissibility of earlier statements.  

US v. Mohamad Khweis

Federal Circuit: Prestonback v. US

Military cadet's agreement to recoupment of educational costs upon voluntary early end of service is a statutory agreement, not a contract with the government.

Under Skidmore deference, the government can reasonably decide that involuntary separation from the military presumptively resulted from a voluntary refusal to achieve sufficient performance reviews.

Prestonback v. US

Ninth Circuit: Zayn Al-Abidin Husayn v. USA

Concurrence with denial of en banc:  When assessing State Secrets privilege, courts must attempt to determine if the contested materials contain privileged information, and if so, if there is any way to segregate the non-privileged information.

This applies when the basis for discovery is the statutory obligation to assist foreign tribunals.

Facts generally known and acknowledged by heads of government cannot be considered state secrets.

Dissent from denial of en banc:    Information requested has been held to be within the privilege.

Deference to the Executive warranted on national security interests.

Third party disclosure can't waive privilege, because it belongs to the govt.

Forcing govt to confirm or deny would be harmful.

State secrets privilege not diminished when discovery directed to government contractor.

Not incidental to foreign proceeding -- the purpose of the proceeding is to discover this information.

The fact that it is being sent to a foreign tribunal changes the state secrets balancing.

Zayn Al-Abidin Husayn v. USA

Fourth Circuit: Alan Metzgar v. KBR, Inc.

Suit against military contractor for trash burn pits and water provision is barred under the political question doctrine, given that the military's control over the processes at issue was plenary and actual.

As the suit is dismissed as nonjusticiable, the pendent FTCA suit is moot -- statutory exemption not reached.

http://www.ca4.uscourts.gov/opinions/171960.P.pdf