Discrimination claims that in substance allege the denial of a free and appropriate public education trigger the exhaustion requirements of the Act; even if one party is thought not to have standing, the development of the administrative record will assist any subsequent judicial review.
http://media.ca8.uscourts.gov/opndir/18/07/172260P.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.
Eighth Circuit: United States v. Tong Moua
As the trial court is best positioned to judge the facts, sufficient evidence for robbery conviction where a single witness who had earlier identified another person made an in-court identification, deft was seen in a vehicle that was later found near a robbery with incriminating writing-pad impressions, warrantless cell-phone location data placed the deft near the robberies, and items of clothing similar to those seen during the robbery were found at the apartment. Sentence substantively not unreasonable.
http://media.ca8.uscourts.gov/opndir/18/07/172046P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172046P.pdf
Seventh Circuit: Joshua Vasquez v. Kimberly Foxx
State's expansion of residence restrictions for registered offenders was not an ex post facto penalty, as the conduct regulated is post-enactment knowing residence. The law does not amount to a taking, since it is a regulation on the use of property, doesn't affect the market value of the property, and plaintiffs acquired the property after enactment. Procedural due process does not require individual hearings. The law has a rational basis.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1061:J:Sykes:aut:T:fnOp:N:2184695:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1061:J:Sykes:aut:T:fnOp:N:2184695:S:0
Seventh Circuit: Emma Cehovic-Dixneuf v. Lisa Wong
As the company retained administrative functions, the life insurance plan was within the statute, even though all premiums were paid by the employee; equitable reassignment of the beneficiary is therefore unavailable.
Where hearsay challenges are raised for the first time on a motion to reconsider summary judgment, the court may accept the challenged evidence as tending to point to some admissible method of proof, since the rules bar from the motion to reconsider any claims that might have been raised earlier on the merits.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1532:J:Hamilton:aut:T:fnOp:N:2184892:S:0
Where hearsay challenges are raised for the first time on a motion to reconsider summary judgment, the court may accept the challenged evidence as tending to point to some admissible method of proof, since the rules bar from the motion to reconsider any claims that might have been raised earlier on the merits.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1532:J:Hamilton:aut:T:fnOp:N:2184892:S:0
Seventh Circuit: Nicholas Knopick v. Jayco, Inc.
If courts do have a prudential power to discern real parties in interest, such a power would be inapposite here, as the plaintiff who used an LLC to purchase a vehicle, and the LLC assigned the right of action to the plaintiff after the commencement of suit.
Absent an equitable "lemon law" showing to the contrary, repairs on a vehicle owned by an LLC and therefore excluded from warrantied repairs did not effect an intentional relinquishment of a known right by the manufacturer that would allow a subsequent claim against the warranty by the LLC.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-2285:J:Hamilton:autcon:T:fnOp:N:2184815:S:0
Absent an equitable "lemon law" showing to the contrary, repairs on a vehicle owned by an LLC and therefore excluded from warrantied repairs did not effect an intentional relinquishment of a known right by the manufacturer that would allow a subsequent claim against the warranty by the LLC.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-2285:J:Hamilton:autcon:T:fnOp:N:2184815:S:0
Fifth Circuit: Raquel Hinojosa v. Petra Horn, et al
Since onetime-citizens who are abroad who have their passports revoked have a right under the statute to petition the Secretary of State for permission to present themselves at a port of entry, they do not have a right to challenge the revocation directly as an administrative action.
This petition process must be exhausted prior to seeking habeas relief; although it does not directly remedy the question of the passport, it allows the grounds for the revocation of the passport to be challenged.
Plaintiff at port of entry cannot seek relief under the statute by declaratory judgment, as statute limits that relief to those inside the US.
Plaintiff who claims to be a citizen, but is denied entry on the grounds that he or she is not a citizen, does not have standing to facially challenge a law requiring all citizens to carry a passport when entering or leaving the country, as it doesn't presently apply to them.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40077-CV0.pdf
This petition process must be exhausted prior to seeking habeas relief; although it does not directly remedy the question of the passport, it allows the grounds for the revocation of the passport to be challenged.
Plaintiff at port of entry cannot seek relief under the statute by declaratory judgment, as statute limits that relief to those inside the US.
Plaintiff who claims to be a citizen, but is denied entry on the grounds that he or she is not a citizen, does not have standing to facially challenge a law requiring all citizens to carry a passport when entering or leaving the country, as it doesn't presently apply to them.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40077-CV0.pdf
Fifth Circuit: Israel Escobar v. Lance Montee
Court does not have jurisdiction over cross-appeal in review of denial of qualified immunity, since deciding whether the police dog bites should be considered singly or as a group is not inextricably intertwined with the question of immunity for (non-dog) officers.
Qualified immunity, as it was objectively reasonable to allow the dog to continue biting the suspect until the suspect was fully handcuffed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10467-CV0.pdf
Qualified immunity, as it was objectively reasonable to allow the dog to continue biting the suspect until the suspect was fully handcuffed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10467-CV0.pdf
Fifth Circuit: Stemcor USA Incorporated v. Cia Siderurgica do Par
District court had subject matter jurisdiction under international convention to enforce the provisional arbitration award.
Although strict compliance with a state preemptive attachment statute would allow attachments of assets allocated by arbitration award on the understanding that they were subsequently to be converted to judgment, such a showing was not made here.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30984-CV1.pdf
Although strict compliance with a state preemptive attachment statute would allow attachments of assets allocated by arbitration award on the understanding that they were subsequently to be converted to judgment, such a showing was not made here.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30984-CV1.pdf
Fifth Circuit: William Erickson v. Lorie Davis, Director
State court judgment became final and the clock for federal habeas began to run after the period for challenging the state appellate decision in the Supreme Court ran out, not after the state judgment on remand became final.
Third Circuit: Nadine Pellegrino v. TSA
Since the Act distinguishes officers from employees, the purpose of the Act is to circumscribe and define federal tort liability, and subsequent caselaw, only criminal law enforcement officers are within the Act's waiver of sovereign immunity; airport security officers are not within this group, as they merely perform administrative searches.
Dissent: Act unambiguously includes investigative officers; airport security are officers of the United States empowered to conduct searches for violations of federal law; these searches go far beyond the level of an administrative search.
http://www2.ca3.uscourts.gov/opinarch/153047p.pdf
Dissent: Act unambiguously includes investigative officers; airport security are officers of the United States empowered to conduct searches for violations of federal law; these searches go far beyond the level of an administrative search.
http://www2.ca3.uscourts.gov/opinarch/153047p.pdf
First Circuit: Sindi v. El-Moslimany
As the list of defamatory statements were generally indicative of actual malice, there is no plain error in the finder of fact's determination that at least some of them were actionable defamation.
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
First Circuit: Tang v. Citizens Bank
Counsel's response of "okay, fair enough" after overrule of objection withdrew the objection, and there was sufficient evidence to establish that the jury might reasonably have rejected the "quid pro quo" theory of harassment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1365U-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1365U-01A.pdf
First Circuit: Acosta v. Local Union 26, Unite Here
Since an earlier draft of the bill provided the right to inspect and copy other agreements negotiated by the union, a statute giving members the right to inspect other agreements does not compel the union to permit note-taking while inspecting the agreements.
http://media.ca1.uscourts.gov/pdf.opinions/17-1666P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1666P-01A.pdf
First Circuit: Hajdusek v. US
Although made at the operational level, the Marine training program instructor's decision to work a recruit to the point of permanent physical injury was a discretionary balancing of policy goals, and therefore not within the waiver of sovereign immunity in the Act.
http://media.ca1.uscourts.gov/pdf.opinions/17-2137P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-2137P-01A.pdf
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
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
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.
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/$file/17-5084-1739812.pdf
Clean air, water and environment is not property or liberty for which due process of law would be required before deprivation.
Funding structure of the commission does not, on its face, violate the constitution; review and tolling procedures are within the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/2FEE744A69F0676F852582C600521EA8/$file/17-5084-1739812.pdf
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.
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/$file/16-1230.pdf
Plain meaning of the statute presents insufficient ambiguity to permit a challenge arising from context.
Evidence of a state's extrinsic noncompliance is insufficient basis to hold that the agency's decision that the state's lack of enforcement actions indicated compliance with the plan was arbitrary or capricious.
As the act is an exercise in cooperative federalism, agency was within rights in accepting state's assertion of compliance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A1B19B3B5B48B063852582C600523288/$file/16-1230.pdf
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