No rational basis to think that Local's collection letter and employer's subsequent collection of full dues from employees who had requested financial core status could not be thought by a rational person to tend to restrain or coerce employees not to enforce their rights under the Act.
https://www.cadc.uscourts.gov/internet/opinions.nsf/9B76B67B9F567375852582AD0054B245/$file/16-1338-1736047.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
DC Circuit: US v. Guadalupe Galaviz
When challenging a district court's procedurally correct decision not to lower a sentence imposed with reference to subsequently retroactively amended guidelines ranges, the petitioner must establish that the decision to leave the original sentence in place is itself substantively unreasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/2F95E99A58F5CD4D852582AD0054B25F/$file/16-3052-1736019.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/2F95E99A58F5CD4D852582AD0054B25F/$file/16-3052-1736019.pdf
DC Circuit: US v. Ernest Akers
Retroactive revision in the sentencing guidelines did not modify the career offender guidelines for the offense, even where sentence was imposed according to plea with a substantial downward revision from the career offender level.
https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C57C92A4A99672852582AD0054C99D/$file/17-3095.pdf
DC Circuit: Citizens for Responsibility v. FEC
Given presumption of unreviewability of agency's discretionary enforcement decisions, commission's decision not to enforce after tied vote is not reviewable under organic statute or APA. Plaintiff does not identify the specific statutory provision violated by inaction.
Dissent: It was a reasoned application of facts to law; inaction violates the organic statute, which sets a sufficiently specific task to overcome the presumption.
Federal Circuit: Sifab Solar, Inc. v. US
Where there is no probability of success on the merits, a preliminary injunction is not reviewed under a sliding scale as to the merits.
Congruency between presidential order on tarriffs and the commission's recommendations is a matter for Congress; commission findings did not preclude the tarriff under the NAFTA enablement act.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1718.Opinion.6-15-2018.pdf
Congruency between presidential order on tarriffs and the commission's recommendations is a matter for Congress; commission findings did not preclude the tarriff under the NAFTA enablement act.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1718.Opinion.6-15-2018.pdf
Federal Circuit: Xitronix Corp. v. KLA - Tencor Corp.
Denial of en banc.
Dissent from denial: Where plaintiff does not allege any non-patent-law theory of harm in an antitrust suit, the circuit is not divested of jurisdiction to hear the claim, given statutory grant of jurisdiction.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2746.Order.6-15-2018.1.pdf
Dissent from denial: Where plaintiff does not allege any non-patent-law theory of harm in an antitrust suit, the circuit is not divested of jurisdiction to hear the claim, given statutory grant of jurisdiction.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2746.Order.6-15-2018.1.pdf
Seventh Circuit: Kimberly Flanagan v. Office of the Chief Judge
Plaintiff's report of being told by a co-worker that others were conspiring to kill her was inadmissible double hearsay.
Ominous threats in parking lot were scattered empty threats, insufficient to state a claim for a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-1927:J:PerCuriam:aut:T:fnOp:N:2171849:S:0
Ominous threats in parking lot were scattered empty threats, insufficient to state a claim for a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-1927:J:PerCuriam:aut:T:fnOp:N:2171849:S:0
Seventh Circuit: Wendell Weaver v. Walter Nicholson
State Habeas court reasonably applied governing precedent in holding that disqualification of deft's chosen counsel due to representation of potential prosecution witness didn't violate the right; the third party representation here was much closer than in the precedent to the contrary.
Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.
Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.
Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.
Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.
Admission of prior bad acts claim procedurally defaulted.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0
Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.
Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.
Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.
Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.
Admission of prior bad acts claim procedurally defaulted.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0
Seventh Circuit: J. Donald Henson, Sr. v. HHS
FOIA does not create a cause of action against individual employees.
No error in magistrate's case managment order setting a summary judgment motion prior to discovery.
Agency's search and redactions were proper; plaintiff did not challenge specific exemptions.
No clear error in agency exemptions for attorney/client privilege, trade secret, and personnel reasons.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-1750:J:Hamilton:aut:T:fnOp:N:2171542:S:0
No error in magistrate's case managment order setting a summary judgment motion prior to discovery.
Agency's search and redactions were proper; plaintiff did not challenge specific exemptions.
No clear error in agency exemptions for attorney/client privilege, trade secret, and personnel reasons.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-1750:J:Hamilton:aut:T:fnOp:N:2171542:S:0
Seventh Circuit: Eli Lilly v. Arla Foods, Inc.
Preliminary injunction under the Lanham Act appropriately issued where a single supplier ends use of the product; causation can be inferred from the demonization of the product, and no hard evidence of consumer confusion is necessary at the stage of preliminary injunction.
Injunction was not overbroad in barring a wide variety of cartoon ogres and substantially similar messages.
Concurring in part, concurring in j: District court findings on actual confusion weren't raised in the interlocutory appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-2252:J:Sykes:aut:T:fnOp:N:2171872:S:0
Injunction was not overbroad in barring a wide variety of cartoon ogres and substantially similar messages.
Concurring in part, concurring in j: District court findings on actual confusion weren't raised in the interlocutory appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-2252:J:Sykes:aut:T:fnOp:N:2171872:S:0
Seventh Circuit: Part-time Faculty Association v. Columbia College Chicago
Where a Board representation decision partially grounded in an interpretation of the terms of the CBA conflicts with a subsequent artbitrator's ruling on the question of representation, the latter is unenforceable as to the representation, as the parties in the second proceeding are bargaining for the arbitrator's opinion, not the Board's interpretation of the Act.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-3492:J:Flaum:aut:T:fnOp:N:2171484:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-3492:J:Flaum:aut:T:fnOp:N:2171484:S:0
Fourth Circuit: Rhonda L. Hutton v. National Board of Examiners
Where the fraudulent opening of lines of credit in plaintiffs' name can be plausibly traced to the deft's data breach, plaintiffs have suffered, at minimum, sufficient concrete and particular imminent harm to state a claim.
Fourth Circuit: Plaintiffs Appealing CMO 100 v. Pfizer
No error in exclusion of expert testimony under Daubert where statistician performed a wide range of analyses to verify the legitimacy of the analysis, but excluded the other tests from testimony, and further impermissibly used an indicator for the medical condition as evidence of the medical condition.
No error in exclusion of second expert where stepped dosage conclusions were impermissibly based on conclusions as to lowest dosage that were based on a statistically insignificant association, since this manner of analysis is not generally accepted.
No error in exclusion of third expert, as differential diagnosis methodology did not sufficiently account for alternative causation.
Deft admissions almost never sufficient basis to survive summary judgment, where the claim is too complex for the average juror.
Summary judgment grant across the MDL was an appropriate use of judicial resources.
http://www.ca4.uscourts.gov/opinions/171140.P.pdf
No error in exclusion of second expert where stepped dosage conclusions were impermissibly based on conclusions as to lowest dosage that were based on a statistically insignificant association, since this manner of analysis is not generally accepted.
No error in exclusion of third expert, as differential diagnosis methodology did not sufficiently account for alternative causation.
Deft admissions almost never sufficient basis to survive summary judgment, where the claim is too complex for the average juror.
Summary judgment grant across the MDL was an appropriate use of judicial resources.
http://www.ca4.uscourts.gov/opinions/171140.P.pdf
Fourth Circuit: Shari Renee Lauflett v. Commissioner
Jurisdiction grant inside parentheticals in a prefatory part of the statute makes appeals time limit jurisdictional; in addition to plain language, the fact that collections actions can't be enjoined absent a timely filing, and agency can't collect until after the cutoff establish the reading.
http://www.ca4.uscourts.gov/opinions/171986.P.pdf
http://www.ca4.uscourts.gov/opinions/171986.P.pdf
Fourth Circuit: US v. Darra Lee Shephard
No error in sentencing determination that vulnerable victims were targeted by telemarketing scheme and deft was aware of theiir vulnerability, as scheme targeted those who had already fallen for it once.
No error in loss calculation that incorporated uncharged wire transfers, as they were clear from the face of the indictment.
No error in sentencing finding that deft was culpable for conspiracy until 2015, despite ending work there in 2012, as deft stipulated to involvement in the facts incorporated in the plea, and, in the alternative, exit wasn't strong enough to end conspiracy liability.
http://www.ca4.uscourts.gov/opinions/174148.P.pdf
No error in loss calculation that incorporated uncharged wire transfers, as they were clear from the face of the indictment.
No error in sentencing finding that deft was culpable for conspiracy until 2015, despite ending work there in 2012, as deft stipulated to involvement in the facts incorporated in the plea, and, in the alternative, exit wasn't strong enough to end conspiracy liability.
http://www.ca4.uscourts.gov/opinions/174148.P.pdf
Fourth Circuit: Maricela Martinez v. Jefferson B. Sessions III
As no jury unanimity as to the theory of the offense is required, statute is not susceptible to modified categorical review.
Assuming that the 'substantial erosion' of property rights required for the agency standard of theft convictions is valid and applies here, since the law sweeps beyond that to incorporate things like joyriding, the agency erred in holding the state conviction to be a crime of moral turpitude justifying refusal of withholding of removal.
http://www.ca4.uscourts.gov/opinions/171301.P.pdf
Assuming that the 'substantial erosion' of property rights required for the agency standard of theft convictions is valid and applies here, since the law sweeps beyond that to incorporate things like joyriding, the agency erred in holding the state conviction to be a crime of moral turpitude justifying refusal of withholding of removal.
http://www.ca4.uscourts.gov/opinions/171301.P.pdf
Third Circuit: USA v. Juan Ramos
Statute is divisible for purposes of modified categorical review despite the fact that governing precedent allows indictment and conviction without requiring the finder of fact to agree on the theory of the crime; i.e., a jury could split between the elements.
State statute categorically a crime of violence, as it is inconceivable that someone could try to injure another with a deadly weapon without using force.
http://www2.ca3.uscourts.gov/opinarch/172720p.pdf
State statute categorically a crime of violence, as it is inconceivable that someone could try to injure another with a deadly weapon without using force.
http://www2.ca3.uscourts.gov/opinarch/172720p.pdf
Eleventh Circuit: David Dwayne Cassady v. Steven D. Hall, et al
Post-judgment motion to District Court seeking garnishment of funds due state inmate from a state employee is construed as a suit for the purposes of the Eleventh Amendment when it makes some claim, demand, or request against the state.
State did not waive immunity by authorizing garnishment for funds due state employees or officials as a result of services performed, and under the Rules Enablement Act, Rule 69 cannot serve as a modification or abridgment of any substantive rights.
http://media.ca11.uscourts.gov/opinions/pub/files/201810667.pdf
State did not waive immunity by authorizing garnishment for funds due state employees or officials as a result of services performed, and under the Rules Enablement Act, Rule 69 cannot serve as a modification or abridgment of any substantive rights.
http://media.ca11.uscourts.gov/opinions/pub/files/201810667.pdf
Federal Circuit: Sunpreme, Inc. v. US
The residual clause of the Trade Court's jurisdictional statute cannot be invoked if there is a practicable alternative basis for jurisdiction elsewhere in the statute; the court therefore did not have jurisdiction to issue an injunction during the pendency of an agency scope determination, the completion of which could then be challenged under the statute.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1338.Opinion.6-14-2018.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1338.Opinion.6-14-2018.pdf
Federal Circuit: Land of Lincoln Mutual Health v. US
No contract-based Takings claim, as there was no contract.
Legislative enactment does not create a property interest cognizable under the Takings Clause.
Dissent: Contract.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1224.Opinion.6-14-2018.pdf
Legislative enactment does not create a property interest cognizable under the Takings Clause.
Dissent: Contract.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1224.Opinion.6-14-2018.pdf
Federal Circuit: Moda Health Plan v. US
Where a statute commits to the government's disbursal of funds from a single program according to a certain formula, subsequent budgetary riders need not place a categorical ban on payment from other sources when limiting the payouts from that program in order to function as a sufficiently clear implied repeal of the initial commitment.
Absent the trappings of a contractual agreement or some sign of intent to enter into a contract, government legislation and subsequent agency rulemaking and conduct does not indicate an intention to enter into a binding contract.
Dissent: Insufficiently clear statement of repeal, explicit attempts at repeal did not pass, insurers had completed their part of the deal, judgment fund is available, contract existed.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1994.Opinion.6-14-2018.pdf
Absent the trappings of a contractual agreement or some sign of intent to enter into a contract, government legislation and subsequent agency rulemaking and conduct does not indicate an intention to enter into a binding contract.
Dissent: Insufficiently clear statement of repeal, explicit attempts at repeal did not pass, insurers had completed their part of the deal, judgment fund is available, contract existed.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1994.Opinion.6-14-2018.pdf
Tenth Circuit: United States v. Driscoll
When determining the timeliness of a Habeas petition, the critical element is the right asserted; the question of whether an ambiguous conviction is or is not contradicted by the new rule is a matter for merits consideration.
As the petitioner was convicted under a statute broader than the generic offense, it is more likely than not that they were convicted under the unconstitutional residual clause, justifying the granting of the writ.
On merits, granted as not harmless error.
https://www.ca10.uscourts.gov/opinions/16/16-8118.pdf
As the petitioner was convicted under a statute broader than the generic offense, it is more likely than not that they were convicted under the unconstitutional residual clause, justifying the granting of the writ.
On merits, granted as not harmless error.
https://www.ca10.uscourts.gov/opinions/16/16-8118.pdf
Seventh Circuit: Thaddeus Jones v. Michelle Qualkinbush
The right to vote on policy questions in a referendum is a creature of state, not federal, law, and the referendum process is not a public forum under the First Amendment, so a state entity might legitimately dominate the process if there is a reasonable basis for it to do so.
A politician disadvantaged by the state's manipulation of the referendum process is a class of one for Equal Protection purposes, and where the conduct is valid as a general matter, the question is not justiciable. (This last bit is clearly implied, but not explicitly stated in those terms.)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-14/C:17-1227:J:Easterbrook:aut:T:fnOp:N:2170958:S:0
A politician disadvantaged by the state's manipulation of the referendum process is a class of one for Equal Protection purposes, and where the conduct is valid as a general matter, the question is not justiciable. (This last bit is clearly implied, but not explicitly stated in those terms.)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-14/C:17-1227:J:Easterbrook:aut:T:fnOp:N:2170958:S:0
Sixth Circuit: Sazerac Brands, LLC v. Peristyle, LLC
Where a company acquires a historic manufacturing site, a plaintiff claiming infringement of the trademarked name must, to state claim, establish that the mark associated with the site was not used merely in a good-faith descriptive or geographical sense.
(Though it says that unfair use is part of the necessary claim, the interlocutory order here affects a partial summary judgment.)
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0113p-06.pdf
(Though it says that unfair use is part of the necessary claim, the interlocutory order here affects a partial summary judgment.)
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0113p-06.pdf
Fifth Circuit: Franchise Svc of North America v. United States Trustee
As shareholder rights under the corporate charter are a matter of state law and the power of a corporation to invoke bankruptcy protection arises from local law, the federal public policy interest in assuring the bankruptcy proceeding does not preclude a shareholder from blocking the bankruptcy filing where that shareholder is also a creditor, so long as there is no evidence of bad faith in the acquisition of the blocking shareholder rights.
Whether the acquisition of such rights under the charter violates state law is not before the court, as the parties don't raise it here.
Simple acquisition of a controlling interest in a stock class is insufficient proof of corporate control for purposes of judging breach of fiduciary duty; blocking the filing is not per se proof of such control.
http://www.ca5.uscourts.gov/opinions/pub/18/18-60093-CV0.pdf
Whether the acquisition of such rights under the charter violates state law is not before the court, as the parties don't raise it here.
Simple acquisition of a controlling interest in a stock class is insufficient proof of corporate control for purposes of judging breach of fiduciary duty; blocking the filing is not per se proof of such control.
http://www.ca5.uscourts.gov/opinions/pub/18/18-60093-CV0.pdf
Fifth Circuit: Gail McClendon v. USA
Regardless of the ultimate burden at trial, a deft's reasonably supported assertion that less than the full amount of taxes due was available for use in the company's accounts presents a genuine issue of material fact for trial.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20174-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20174-CV0.pdf
Fifth Circuit: USA v. Ronald Ary
Under both state and federal law, a state deferred adjudication for this type of crime qualifies as a valid predicate conviction for sentencing purposes.
An indictment that omits this element of the offense does not offend Due Process, since Apprendi and its progeny specifically except prior convictions.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10082-CR0.pdf
An indictment that omits this element of the offense does not offend Due Process, since Apprendi and its progeny specifically except prior convictions.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10082-CR0.pdf
Third Circuit: USA v. Christopher Welshans
Where deft stipulated to the prohibited content, error to admit prejudicial videos and refer to them in closing, but no Due Process violation given the overwhelming evidence of guilt.
Deft's deletion of files upon learning that the police were on the way was sufficiently contemporaneous with arrest to qualify for the Obstruction sentencing enhancement, but as the files were simply moved to the recycle file, there was no material hindrance.
Concur/Dissent: Actions upon learning of investigation are not sufficiently contemporaneous with arrest.
http://www2.ca3.uscourts.gov/opinarch/164106p.pdf
Deft's deletion of files upon learning that the police were on the way was sufficiently contemporaneous with arrest to qualify for the Obstruction sentencing enhancement, but as the files were simply moved to the recycle file, there was no material hindrance.
Concur/Dissent: Actions upon learning of investigation are not sufficiently contemporaneous with arrest.
http://www2.ca3.uscourts.gov/opinarch/164106p.pdf
Ninth Circuit: Clifford Tindall v. First Solar Inc.
Where FRCP indicates abuse of discretion review, but the dismissal for not stating a claim would usually prompt de novo, circuit precedent compels a three-judge panel to review the claim for abuse of discretion.
Under Delaware law, the Board's role in financial disclosures and press releases is not a business judgment for the purposes of assessing demand futility, since the releases and disclosures are snapshots of past business decisions. The correct test looks to general oversight.
Where a court denies leave to amend in a situation where it is usually granted absent prejudice, but the rule merely permits granting for good cause, there is no need to cite or discuss the rule, so long as there is no abuse of discretion of the good cause standard.
Eighth Circuit: Stuart Wright v. United States of America
Local rules mandate that the reply brief to a motion for summary judgment must be in a certain form, not that it must contest all statements of fact not waived.
Under law of the case, basketball player falsely arrested justified the subsequent restraint on his liberty by briefly backing away from the police; this presents no issue for trial.
As the arrest and detention were justified, no abuse of process.
Arrest and tasing midcourt did not rise to the level of assault, as the officers thought that they were arresting a dangerous person.
http://media.ca8.uscourts.gov/opndir/18/06/172274P.pdf
Under law of the case, basketball player falsely arrested justified the subsequent restraint on his liberty by briefly backing away from the police; this presents no issue for trial.
As the arrest and detention were justified, no abuse of process.
Arrest and tasing midcourt did not rise to the level of assault, as the officers thought that they were arresting a dangerous person.
http://media.ca8.uscourts.gov/opndir/18/06/172274P.pdf
Eighth Circuit: Jonathan Ervin v. Michael Bowersox
State's use of a video at trial showing the invocation of previously waived Miranda rights in the course of an interrogation and references to the video in opening and closing statements were not an unreasonable application of clearly established federal law.
Factual determinations not unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/171743P.pdf
Factual determinations not unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/171743P.pdf
Eighth Circuit: United States v. Hosea Swopes
State statute is a valid ACCA predicate.
Per curiam, simple assertion of precedent.
http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf
Per curiam, simple assertion of precedent.
http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf
Eighth Circuit: Jim Sciaroni v. Target Corporation
Class appropriately certified despite court's mistaken finding that class members without present injury would be entitled to a pro rata share of the remainder of the fund.
Class appropriately certified despite potential inter-class conflicts over later-arising harms from the data breach, since all class members suffered the same injury at the same time.
29% Fee award can appropriately be based on a total that includes administrative costs; fees not substantively unreasonable.
Settlement not unfair, despite alleged subtle signs of collusion.
http://media.ca8.uscourts.gov/opndir/18/06/153909P.pdf
Class appropriately certified despite potential inter-class conflicts over later-arising harms from the data breach, since all class members suffered the same injury at the same time.
29% Fee award can appropriately be based on a total that includes administrative costs; fees not substantively unreasonable.
Settlement not unfair, despite alleged subtle signs of collusion.
http://media.ca8.uscourts.gov/opndir/18/06/153909P.pdf
Fifth Circuit: Esther White v. Cigna Group Insurance
Abuse of discretion for the Plan Administrator not to mention insurer's medical report asserting that the level of drug intoxication was impossible to determine given the tests run, withhold the report from discovery, and deny the claim.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30356-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-30356-CV0.pdf
Fifth Circuit: USA v. Candido Hernandez-Avila
Given the recent holding of the US Supreme Court defining the age of consent for the general offense of statutory rape, the state statute is not a valid sentencing predicate, as the state statute is stricter, and a strict liability offense.
Government's post-briefing argument that the crime is a crime of violence under the instant provision of the sentencing guidelines refers to an earlier version of the guidelines with materially different language -- the older version cites crimes with a "substantial risk" of violence.
Contention that the sentence would be justified under another part of the guidelines is not properly before the court, as the question is simply whether the current sentence was correctly imposed.
http://www.ca5.uscourts.gov/opinions/pub/16/16-51009-CR0.pdf
Government's post-briefing argument that the crime is a crime of violence under the instant provision of the sentencing guidelines refers to an earlier version of the guidelines with materially different language -- the older version cites crimes with a "substantial risk" of violence.
Contention that the sentence would be justified under another part of the guidelines is not properly before the court, as the question is simply whether the current sentence was correctly imposed.
http://www.ca5.uscourts.gov/opinions/pub/16/16-51009-CR0.pdf
Fifth Circuit: Edward Busby v. Lorie Davis, Director
Assertion of actual innocence in a second state Habeas that was dismissed summarily with an indication that the court did not reach the merits was not dismissed for procedural default, as the briefing indicates (which would at any rate be a reasonable ruling, since Federal courts are permitted to do such things), but for the alternate reason in the statute, namely that no reasonable juror would have accepted the claim. As this alternate ground is not challenged, the state denial was not an unreasonable application of facts or federal law.
Second non-AEDPA federal Habeas asserting identical claims is denied on merits.
Ineffective Assistance claim based on direct appeal was not raised in initial state Habeas -- ineffective assistance in collateral proceedings is insufficient excuse for the default of claim, as there is no right to counsel at that stage.
No prejudice from ineffective assistance at trial.
Editorial note: End the death penalty.
First Circuit: US v. Gonzalez-Negron
Souter, by designation.
No plain error in court's acceptance of plea for possession of a weapon in furtherance of a drug crime where the gun and the drugs were found in separate areas of the residence, given modificaitons to gun and gov't proffer to prove role in drug scheme.
No plain error in colloquy's omission of clarification of "in furtherance," as it is a plain term, and there was no showing that deft would have changed the plea.
http://media.ca1.uscourts.gov/pdf.opinions/17-1302P-01A.pdf
No plain error in court's acceptance of plea for possession of a weapon in furtherance of a drug crime where the gun and the drugs were found in separate areas of the residence, given modificaitons to gun and gov't proffer to prove role in drug scheme.
No plain error in colloquy's omission of clarification of "in furtherance," as it is a plain term, and there was no showing that deft would have changed the plea.
http://media.ca1.uscourts.gov/pdf.opinions/17-1302P-01A.pdf
First Circuit: US v. Benitez-Beltran
Territory's crime of Attempted Murder is a valid predicate offense, since (1) Territory's definition of murder requires purposeful or knowing conduct, and the generic offense merely requires reckless indifference; and (2) the act or omission required for the attempt could be counted as the substantial step in furtherance, cf. MPC.
Government's mention of impermissible sentencing factors at sentencing was insufficient to establish that the court relied on them in sentencing.
No substantive error in upward variance, as court developed a theory of recidivism; no error in court's using arguments offered in mitigation as factors weighing in favor of a higher sentence, given the concern with recidivism.
No substantive error for a ten-year felon-in-possession sentence to be served consecutively to the existing 90 year sentence for aggravated robbery.
http://media.ca1.uscourts.gov/pdf.opinions/17-1161P-01A.pdf
Government's mention of impermissible sentencing factors at sentencing was insufficient to establish that the court relied on them in sentencing.
No substantive error in upward variance, as court developed a theory of recidivism; no error in court's using arguments offered in mitigation as factors weighing in favor of a higher sentence, given the concern with recidivism.
No substantive error for a ten-year felon-in-possession sentence to be served consecutively to the existing 90 year sentence for aggravated robbery.
http://media.ca1.uscourts.gov/pdf.opinions/17-1161P-01A.pdf
First Circuit: US v. Serrano-Acevedo
Insufficient articulable grounds for a protective sweep where two armed men robbed a bank, and both had been detained prior to the sweep through the house.
Subsequent consent to search was tainted by the fruits of the sweep.
Court's instruction sufficient to cure in-court statement by police officer saying that the robbers had been identified to him by name by an informant.
Other hearsay harmless.
http://media.ca1.uscourts.gov/pdf.opinions/16-2009P-01A.pdf
Subsequent consent to search was tainted by the fruits of the sweep.
Court's instruction sufficient to cure in-court statement by police officer saying that the robbers had been identified to him by name by an informant.
Other hearsay harmless.
http://media.ca1.uscourts.gov/pdf.opinions/16-2009P-01A.pdf
First Circuit: US v. Tanco-Pizarro
In a revocation of supervised release proceeding, challenges raised for the first time in a motion to reconsider the sentence are not preserved for appeal.
Absent a showing of potentially exculpatory evidence, no plain error in denial of discovery and continuance in revocation hearing, given indictment handed down in a parallel proceeding,.
No plain error in considering the magnitude of the offense and the need for just punishment in the revocation proceeding, as they speak to the magnitude of the breach of trust in the parole violation.
Prior compliance with parole waived for not being raised below.
No plain error in an upward variance five times the upper limit of the range, as adequately discussed at sentencing.
Substantively, no abuse of discretion in the sentence, as it's not implausible or indefensible.
Tenth Circuit: Perry v. Durborow
Challenges to questions of fact in interlocutory petition for relief seeking qualified immunity do not remove jurisdiction where counsel stipulates to the facts at issue during spoken arguments.
Qualified immunity for supervisory liability of detainee rape, as a general prohibition on deliberate indifference to sexual abuse didn't sufficiently prohibit supervision of a facility where male guards encountered female prisoners outside the view of security cameras.
https://www.ca10.uscourts.gov/opinions/17/17-5023.pdf
Qualified immunity for supervisory liability of detainee rape, as a general prohibition on deliberate indifference to sexual abuse didn't sufficiently prohibit supervision of a facility where male guards encountered female prisoners outside the view of security cameras.
https://www.ca10.uscourts.gov/opinions/17/17-5023.pdf
Eighth Circuit: Mary Brazil v. Arkansas Dept of Human Service
In a suit alleging discrimination in employment practices, a material change in the plaintiff's working situation moots a claim of retaliation that seeks injunctive relief where there is only a speculative possibility that the employee might be transferred back to her old position.
http://media.ca8.uscourts.gov/opndir/18/06/172229P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/172229P.pdf
Eighth Circuit: Leslie Grussing v. Orthopedic and Sports Medicine
No error in trial court's refusal to allow questioning of an expert on a line of inquiry that had been established by another witness.
In a diversity action, federal law governs the review of counsel statements in closing arguments.
Given curative instruction, deft counsel's mis-characterization of the burden of proof was not plainly injurious.
http://media.ca8.uscourts.gov/opndir/18/06/172228P.pdf
In a diversity action, federal law governs the review of counsel statements in closing arguments.
Given curative instruction, deft counsel's mis-characterization of the burden of proof was not plainly injurious.
http://media.ca8.uscourts.gov/opndir/18/06/172228P.pdf
Eighth Circuit: Missourians for Fiscal, etc. v. James Klahr
State law prohibiting the formation of political committees after 30 days before an election is subject to strict scrutiny, as the law speaks to formation, a precondition for speech, and not disclosure.
The law is overbroad, as citizens might have cause to speak within the prohibited window, there are subsequent reporting requirements closer to the election, and past practice of the agency in merely imposing a $1,000 fine does not save the act.
http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf
The law is overbroad, as citizens might have cause to speak within the prohibited window, there are subsequent reporting requirements closer to the election, and past practice of the agency in merely imposing a $1,000 fine does not save the act.
http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf
Eighth Circuit: In re Sealed Case
Where a court varies downward from a statutory maximum which is beneath the published guidelines range and the sentence is later further reduced on the government's motion, the sentence is not sufficiently based on the published range to merit relief after subsequent changes to that range.
http://media.ca8.uscourts.gov/opndir/18/06/164456P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/164456P.pdf
Seventh Circuit: USA v. Todd Dyer
Where deft challenges plea at trial by asserting grounds of innocence, an appellate challenge to the plea on other grounds is reviewed for plain error.
No plain error in magistrate's acceptance of plea where deft made one or two word answers in colloquy and court did not inquire into possible bipolar disorder.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-13/C:17-1776:J:PerCuriam:aut:T:fnOp:N:2169817:S:0
No plain error in magistrate's acceptance of plea where deft made one or two word answers in colloquy and court did not inquire into possible bipolar disorder.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-13/C:17-1776:J:PerCuriam:aut:T:fnOp:N:2169817:S:0
Sixth Circuit: Acosta v. Cathedral Buffet Inc.
Following reversal and remand, the appellate court should refrain from granting leave to file a motion at the Circuit level for fees under the statute; the District Court is better positioned to judge the matter.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0112p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0112p-06.pdf
Fifth Circuit: Innova Hospital San Antonio LP v. Blue Cross & Blue Shield
ERISA action need not identify the specific language of every plan provision at issue to state a claim, so long as the pleading is not overly conclusory; the suit might be resolved using representative terms.
Under state law, similar analysis applied to the claim for breach of contract.
As a suit for monetary damages is possible, a suit for breach of fiduciary duty is barred by the statute and precedent.
No error in denial of leave to amend second amended complaint, as the request did not discuss the legal standard for untimely leave to amend.
http://www.ca5.uscourts.gov/opinions/pub/14/14-11300-CV0.pdf
Under state law, similar analysis applied to the claim for breach of contract.
As a suit for monetary damages is possible, a suit for breach of fiduciary duty is barred by the statute and precedent.
No error in denial of leave to amend second amended complaint, as the request did not discuss the legal standard for untimely leave to amend.
http://www.ca5.uscourts.gov/opinions/pub/14/14-11300-CV0.pdf
Fifth Circuit: USA v. Richard Evans
No plain error in conviction where the procedures of the medical practice were the subject of testimony and the link to the individual cases in the indictment was merely the patients' medical files.
Finder of fact might reasonably have found the non-narcotics elements of the medical practice to be cookie-cutter and superficial cover for the actual work of the practice.
Even absent a showing as to the amount of "clean money" in a commingled account, no plain error in the aggregation of all withdrawals in computing the total amount of withdrawals to determine if the amount withdrawn must necessarily have included the criminal proceeds.
No plain error in mail fraud conviction where finder of fact might have found an implied promise in the patient communications of a proper standard of care.
Witness' opinion of illicit nature of practice sufficiently based in commonsensical inference.
Arguendo, if Confrontation Clause was violated by not allowing deft to cross after prosecution assertion in direct that witness (who had been notified that she was a target of an investigation) was not a suspect; testimony was cumulative.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20159-CR0.pdf
Finder of fact might reasonably have found the non-narcotics elements of the medical practice to be cookie-cutter and superficial cover for the actual work of the practice.
Even absent a showing as to the amount of "clean money" in a commingled account, no plain error in the aggregation of all withdrawals in computing the total amount of withdrawals to determine if the amount withdrawn must necessarily have included the criminal proceeds.
No plain error in mail fraud conviction where finder of fact might have found an implied promise in the patient communications of a proper standard of care.
Witness' opinion of illicit nature of practice sufficiently based in commonsensical inference.
Arguendo, if Confrontation Clause was violated by not allowing deft to cross after prosecution assertion in direct that witness (who had been notified that she was a target of an investigation) was not a suspect; testimony was cumulative.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20159-CR0.pdf
Third Circuit: Marie Gillispie v. Regionalcare Hospital Partners
Whistleblower who merely objected in internal meetings to non-reporting of facts already known to the decisionmakers does not qualify for the protections of the federal statute.
State common-law employment protections are preempted by the state whistleblower statute.
http://www2.ca3.uscourts.gov/opinarch/164307p.pdf
State common-law employment protections are preempted by the state whistleblower statute.
http://www2.ca3.uscourts.gov/opinarch/164307p.pdf
Second Circuit: Edrei v. Bratton
A 14th Amendment S1983 action alleging excessive force in the use of acoustic weapons states a claim where the force is intentionally applied and the officer is aware of its unreasonable use, given lack of exigency, proportionality of response, and mitigation.
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/1/doc/17-2065_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/1/doc/17-2065_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/1/hilite/
Second Circuit: ING Bank N.V. v. M/V TEMARA
A statutory maritime lien arises by operation of law when a vessel contracts for covered supplies and the supplies are delivered pursuant to the contract, regardless of whether the eventual provision occurred through a chain of intermediaries.
The subcontractor is operating pursuant to another's agreement with the party to the contract with the vessel, and therefore the subcontractor cannot assert a lien against the vessel.
Equitable remedies such as unjust enrichment are not a basis for a judgment against the vessel, as the lien is an in rem action.
Error for the District Court to issue a sua sponte summary judgment absent notice to parties where a reasonable possibility existed of a factual dispute.
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/2/doc/16-3923_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/2/hilite/
The subcontractor is operating pursuant to another's agreement with the party to the contract with the vessel, and therefore the subcontractor cannot assert a lien against the vessel.
Equitable remedies such as unjust enrichment are not a basis for a judgment against the vessel, as the lien is an in rem action.
Error for the District Court to issue a sua sponte summary judgment absent notice to parties where a reasonable possibility existed of a factual dispute.
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/2/doc/16-3923_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/2/hilite/
Second Circuit: U.S. v. Daugerdas
Although, since the interest attached at the time of the offense, the government has a superior claim to the forfeited funds, if the recipient of a gratuitous transfer can allege facts sufficient to infer that the transfer preceded the criminal acts, Due Process and the statute both allow the third party, despite the issues resolved in the criminal action, to claim a superior interest, since commingling of funds would bar the relation-back of the government's interest.
"Pled."
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/doc/17-898_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/hilite/
"Pled."
http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/doc/17-898_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/hilite/
Eleventh Circuit: Sandra Slater v. U.S. Steel Corporation
Maintenance of inconsistent positions in civil litigation (e.g., not disclosing a suit for damages in a bankruptcy litigation) is not in itself making a sham of the judicial system; the court, when making such a determination, must consider the plaintiff/petitioner's sophistication and the conduct of the suit.
11.uscourts.gov/opinions/pub/files/201215548.op2.pdf
11.uscourts.gov/opinions/pub/files/201215548.op2.pdf
Eleventh Circuit: US v. Ramon Cobena Duenas
Sufficient evidence for a courier's conviction for counterfeiting conspiracy under the prudent smuggler doctrine where the prosecution demonstrates a plenitude of contacts among the organization, the courier evinces an awareness of the unlawful nature of the operation, and the courier's actions are critical to the success of the operation.
http://media.ca11.uscourts.gov/opinions/pub/files/201710509.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201710509.pdf
Federal Circuit: Medtronic, Inc. v. Barry
Patent -- substantial evidence.
etc, etc.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1169.Opinion.6-8-2018.1.pdf
etc, etc.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1169.Opinion.6-8-2018.1.pdf
Federal Circuit: Stone Baskets LLC v. Cook Medical LLC
No abuse of discretion in denial of fees in patent litigation, etc, etc.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2330.Opinion.6-8-2018.1.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2330.Opinion.6-8-2018.1.pdf
Federal Circuit: Williams v. MSPB
Agency regulation holding a minimal period of unemployment when transferring between jobs is sufficient to constitute a break in employment for purposes of qualifying for protections of judicial review is a reasonable one, and as it's specific, it's not subject to the anti-parroting canon.
When an agency does not inform an employee of the loss of appeal rights from a transfer, those appeal rights can't later be grated by the Board when they are outside of the statutory jurisdiction of the Board.
No Due Process rights, as the boundaries of the right are coterminous with the boundaries of the statute.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1535.Opinion.6-7-2018.1.pdf
When an agency does not inform an employee of the loss of appeal rights from a transfer, those appeal rights can't later be grated by the Board when they are outside of the statutory jurisdiction of the Board.
No Due Process rights, as the boundaries of the right are coterminous with the boundaries of the statute.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1535.Opinion.6-7-2018.1.pdf
Federal Circuit: Chicago Coating Company v. US
As the deeds of conveyance to the railway were in quitclaim form, a presumption of conveyance in fee simple arises. Reference in one case to a right of way is insufficient to overcome this presumption, as it was likely used to identify the existing easement that ran across the property to be conveyed. Right of re-entry doesn't argue either way, but a reverter in the second deed further reinforces the conveyance in fee simple. Etc, etc.
Carlos Quinteros-Cisneros v. Jefferson B. Sessions III
As state law distinguishes sentencing enhancements from aggravating circumstances and requires sentencing enhancements to be included in the charge, an element of a sentencing enhancement can make the conviction a predicate felony in an immigration removal proceeding.
As sexual abuse of a minor is per se abusive, the conviction is a valid predicate as a crime of abuse.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/13-72632.pdf
As sexual abuse of a minor is per se abusive, the conviction is a valid predicate as a crime of abuse.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/13-72632.pdf
Ninth Circuit: Patricia Campbell v. EDU-HI
Employer's loss of a performance report is not, by itself, an adverse employment action.
Investigation of employee that did not affect her working conditions was not an adverse employment action; the suggestion that others were placed on paid leave while under investigation did not make the continued conditions of employment an adverse action.
Denial of transfer not adverse, since application was untimely.
Music and dance teacher did not establish that classes other than remedial math were available to teach; the assignment therefore was not an adverse one.
Lack of comparators for most claims.
Claim of hostile work environment from student animus is defeated by district's incremental and timely response.
Employer's speech in workplace reasonable.
As no adverse action, no retaliation; actions had sufficient neutral justification.
Standards for Title VII claim identical to Title IX claim.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/15-15939.pdf
Investigation of employee that did not affect her working conditions was not an adverse employment action; the suggestion that others were placed on paid leave while under investigation did not make the continued conditions of employment an adverse action.
Denial of transfer not adverse, since application was untimely.
Music and dance teacher did not establish that classes other than remedial math were available to teach; the assignment therefore was not an adverse one.
Lack of comparators for most claims.
Claim of hostile work environment from student animus is defeated by district's incremental and timely response.
Employer's speech in workplace reasonable.
As no adverse action, no retaliation; actions had sufficient neutral justification.
Standards for Title VII claim identical to Title IX claim.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/15-15939.pdf
Ninth Circuit: US v. Paul Swallow
Sentencing determination that the deft's tennis shoes were dangerous weapons when used to stomp on the victim's head was not an abuse of discretion.
Error, though, to hold that the crime was committed for something of value when the deft had attacked the victim after not receiving the promised drugs in exchange for his wife's $10.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-30224.pdf
Error, though, to hold that the crime was committed for something of value when the deft had attacked the victim after not receiving the promised drugs in exchange for his wife's $10.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-30224.pdf
Ninth Circuit: April Bain v. California Teachers Ass'n
Where the original parties to the suit challenging union fees leave covered employment during the pendency of the appeal and can therefore no longer receive the sought equitable and injunctive relief, the case is moot; it cannot be converted into an action for damages, and an organizational plaintiff cannot be joined to preserve standing.
The remedy is dismissal without a vacatur of the earlier decision on the merits.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-55768.pdf
The remedy is dismissal without a vacatur of the earlier decision on the merits.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-55768.pdf
Ninth Circuit: Richard Vos v. City of Newport Beach
Given the perimeter of police officers with guns, tasers, and dogs, the necessity of killing the gentleman running towards the exit of the 7-11 presents a genuine issue of disputed fact for trial.
Qualified immunity for officers, as circuit precedent as to the appropriate bounds of behavior when dealing with odd, threatening people carrying sharp things was a bit unclear; question of municipal liability remanded.
As the ADA claim of lack of accommodation isn't dispelled by the fact that the officers didn't initiate the confrontation, the issue of reasonable accommodation presents a question for trial.
State tort definition of negligence reasonableness is distinct from Fourth Amendment reasonableness.
Dissent: Fact of mental illness in the suspect shouldn't change the calculus on the use of deadly force in an exigent situation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-56791.pdf
Qualified immunity for officers, as circuit precedent as to the appropriate bounds of behavior when dealing with odd, threatening people carrying sharp things was a bit unclear; question of municipal liability remanded.
As the ADA claim of lack of accommodation isn't dispelled by the fact that the officers didn't initiate the confrontation, the issue of reasonable accommodation presents a question for trial.
State tort definition of negligence reasonableness is distinct from Fourth Amendment reasonableness.
Dissent: Fact of mental illness in the suspect shouldn't change the calculus on the use of deadly force in an exigent situation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-56791.pdf
Eighth Circuit: Porfirio Rodriguez v. Wal-Mart Stores, Inc
In an ADA action, occasional delays in a good-faith negotiation are not a basis for equitable estoppel against deft's argument that the agency filing required by the statute wasn't timely.
http://media.ca8.uscourts.gov/opndir/18/06/171737P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/171737P.pdf
Eighth Circuit: Henry Miranda v. Jefferson Sessions, III
For purposes of immigration removal, the question of whether a particular group is a cognizable social group under the statute is a question of law.
Former taxi drivers who witnessed a murder and were subsequently threatened by a gang do not constitute such a group.
http://media.ca8.uscourts.gov/opndir/18/06/171430P.pdf
Former taxi drivers who witnessed a murder and were subsequently threatened by a gang do not constitute such a group.
http://media.ca8.uscourts.gov/opndir/18/06/171430P.pdf
Eighth Circuit: James Dean v. Burdette Searcey
Holding of prior panel is binding circuit precedent, in addition to law of the case.
Where the principal agent in the theory of municipal liability is exonerated at trial, municipality may still be liable under the theory that the principal actor was exonerated in his functional role, but held to be culpable in his managerial and policymaking role.
Sufficient evidence to support earlier interlocutory holdings on qualified immunity.
Statements and visual aids in opening and closing that referenced innocence of plaintiffs were not unduly prejudicial.
No error in reckless investigation jury instruction that referenced reckless gathering of unreliable evidence, as it does not suggest the lesser threshold of negligence.
"Pled."
http://media.ca8.uscourts.gov/opndir/18/06/164059P.pdf
Where the principal agent in the theory of municipal liability is exonerated at trial, municipality may still be liable under the theory that the principal actor was exonerated in his functional role, but held to be culpable in his managerial and policymaking role.
Sufficient evidence to support earlier interlocutory holdings on qualified immunity.
Statements and visual aids in opening and closing that referenced innocence of plaintiffs were not unduly prejudicial.
No error in reckless investigation jury instruction that referenced reckless gathering of unreliable evidence, as it does not suggest the lesser threshold of negligence.
"Pled."
http://media.ca8.uscourts.gov/opndir/18/06/164059P.pdf
Seventh Circuit: Village of Barrington, IL v. STB
Dicta: Appeal of Board's denial of motion to reconsider as final agency action does not necessarily incorporate earlier decisions, especially when the earlier decisions are not apart of the appellate record.
Appeal of material error which dates to initial board action cannot be appealed by challenging subsequent denials to reconsider.
New evidence raised at motions to reconsider was either available to parties earlier or raised in earlier proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-11/C:17-3586:J:Flaum:aut:T:fnOp:N:2168607:S:0
Appeal of material error which dates to initial board action cannot be appealed by challenging subsequent denials to reconsider.
New evidence raised at motions to reconsider was either available to parties earlier or raised in earlier proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-11/C:17-3586:J:Flaum:aut:T:fnOp:N:2168607:S:0
Sixth Circuit: Amir Shabo v. Jefferson B. Sessions, III
Since agency removal order factual finding that there was an insufficient likelihood of torture after deportation presents neither an issue of law nor one of constitutional rights, the court does not have jurisdiction over the appeal to the agency's parallel holding that the conditions in the other country hadn't changed.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0111p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0111p-06.pdf
Sixth Circuit: U.S. ex rel. Marjorie Prather v. Brookdale Senior Living Cmty., et al. - Middle District of Tennessee at Nashville
In a False Claims Act suit, a time factor is material where the governing statute references a regulation that, in the process of defining the list of terms within the referenced regulation, subsequently incorporates the timing factor.
Past practice is not dispositive at the motion-to-dismiss stage where there is no showing that the government was aware of the factor.
Training and instruction publications can help to establish that a certain factor goes to the essence of the bargain.
Sufficient proof of scienter for trial where deft instructed cursory review, was advised of requirements, and implicitly referenced the violation in internal emails.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0110p-06.pdf
Past practice is not dispositive at the motion-to-dismiss stage where there is no showing that the government was aware of the factor.
Training and instruction publications can help to establish that a certain factor goes to the essence of the bargain.
Sufficient proof of scienter for trial where deft instructed cursory review, was advised of requirements, and implicitly referenced the violation in internal emails.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0110p-06.pdf
Fifth Circuit: Kimberly Huckaba v. Ref-Chem, L.P.
Under state contract law which looks to the intent of the parties, explicit statement in the arbitration agreement that it was to be signed prior to being given effect or modified meant that omission of the drafters signature meant that there was no contract.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50341-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50341-CV0.pdf
Fourth Circuit:Sade Garnett v. Remedi SeniorCare of Virginia
Employer not liable for workplace defamation since it wasn't in the employer's interests, wasn't condoned by the employer, and it was outside the scope of the tortfeasor's employment; there are literally millions of workplace interactions.
http://www.ca4.uscourts.gov/opinions/171890.P.pdf
http://www.ca4.uscourts.gov/opinions/171890.P.pdf
Eleventh Circuit: Carmina R. Comparelli, et al v. Republica Bolivariana De Venezuela, et al
Claim captioned as an ATS claim but arising under FISA is properly construed as a FISA claim.
As FISA expropriation suits require factual correctness to state a claim, courts can pierce the pleadings.
Where a state distinguishes between nationals and foreigners among its permanent residents, the seizure does not implicate the domestic takings exception to FISA expropriation claims; in the case of dual nationals, the inquiry into residence is fact-specific.
An effects-based nexus under the commercial exception to FISA counters the presumption against extraterritoriality.
http://media.ca11.uscourts.gov/opinions/pub/files/201616748.pdf
As FISA expropriation suits require factual correctness to state a claim, courts can pierce the pleadings.
Where a state distinguishes between nationals and foreigners among its permanent residents, the seizure does not implicate the domestic takings exception to FISA expropriation claims; in the case of dual nationals, the inquiry into residence is fact-specific.
An effects-based nexus under the commercial exception to FISA counters the presumption against extraterritoriality.
http://media.ca11.uscourts.gov/opinions/pub/files/201616748.pdf
Eleventh Circuit: Jyll Brink v. Raymond James & Associates, Inc.
Company's undisclosed profit margin within the transaction fee for a covered security was not a material misrepresentation bearing on the decision to purchase the security; a class action suit for redress is therefore not barred from the state courts by federal securities law.
http://media.ca11.uscourts.gov/opinions/pub/files/201614144.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201614144.pdf
Eleventh Circuit: USA v. Delroy Anthony McLean
For purposes of the statute protecting judges from impedance, interference, or intimidation, an immigration judge is a judicial officer who exercises the authority of the Attorney General, and therefore a judicial officer of the United States.
http://media.ca11.uscourts.gov/opinions/pub/files/201710741.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201710741.pdf
DC Circuit: Rachel Fraenkel v. Islamic Republic of Iran
District court's reduction of damages in a FISA suit seeking solatium (consolation) damages against killers of family member because the victims were targeted on the basis of foreign citizenship was an abuse of discretion. The appropriate amount, though, is still a matter of judicial discretion.
Similarly, error to reduce damages for assumption of risk, given that the purpose of the statute is to reduce terrorism, and the victims' conduct was reasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C60AD39892C8E38A852582A600521EC3/$file/17-7100-1735019.pdf
Similarly, error to reduce damages for assumption of risk, given that the purpose of the statute is to reduce terrorism, and the victims' conduct was reasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C60AD39892C8E38A852582A600521EC3/$file/17-7100-1735019.pdf
DC Circuit: Washington Alliance of Technology Workers v. DHS
Trade group has competitor standing to challenge agency decision on student visas.
A claim that the agency exceeded statutory authority states a claim even absent factual allegations.
Under local rules, a party can rest on its claim in response to a motion to dismiss if the initial filing stated a plausible claim for relief.
Certain administrative challenges are not redressible.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C1913070B98EC073852582A600521EA7/$file/17-5110-1735010.pdf
A claim that the agency exceeded statutory authority states a claim even absent factual allegations.
Under local rules, a party can rest on its claim in response to a motion to dismiss if the initial filing stated a plausible claim for relief.
Certain administrative challenges are not redressible.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C1913070B98EC073852582A600521EA7/$file/17-5110-1735010.pdf
DC Circuit: Mercy Hospital, Inc. v. Alex M. Azar II
Statutory bar on judicial review of prospective payment rates bars review of "step-two" rates and any formulae inextricably intertwined.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0A1B7A5BDA2046B4852582A600521E8C/$file/16-5267-1734989.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/0A1B7A5BDA2046B4852582A600521E8C/$file/16-5267-1734989.pdf
National Environmental Development Association's Clean Air Project v. EPA
As the statute unambiguously refers to regional inconsistencies from the delegation of the Administrator's powers, and moreover, implementing judicially-created inconsistencies is a reasonable resolution of the (un)ambiguity, no error in agency's inconsistent remedies implemented in response to bifurcated judicial review.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C030B5F7DB87A8DB852582A600521E70/$file/16-1344-1734993.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C030B5F7DB87A8DB852582A600521E70/$file/16-1344-1734993.pdf
DC Circuit: ESI Energy, LLC v. FERC
Agency did not err when, on remand, it discounted extrinsic evidence that the court had held to be ambiguous.
Relevant date for assigning cost responsibility for a power network upgrade might reasonably be the date of the execution of the agreement to join the network.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C8F18CF446B7250D852582A600522CF6/$file/16-1261.pdf
Relevant date for assigning cost responsibility for a power network upgrade might reasonably be the date of the execution of the agreement to join the network.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C8F18CF446B7250D852582A600522CF6/$file/16-1261.pdf
DC Circuit: Colorado Fire Sprinkler, Inc. v. NLRB
Board's determination that a series of CBA recitations of exclusive representation was sufficient to establish sufficient employee support for the union when initially certified pre-hire was insufficiently reasoned and an abuse of discretion.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C8F18CF446B7250D852582A600522CF6/$file/16-1261.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C8F18CF446B7250D852582A600522CF6/$file/16-1261.pdf
DC Circuit: US v. Benjamin Grey
Absent a limiting instruction, possibly prejudicial testimony as to previous civil judgment(s?) was inadmissible hearsay and plain error -- but insufficient for reversal.
Prior bad acts were sufficiently contemporaneous to be probative of intent as to the charged crimes.
No need to remand to develop ineffective assistance claim, given evidence of guilt.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7D8985C55A9B312B852582A60052550E/$file/14-3003.pdf
Prior bad acts were sufficiently contemporaneous to be probative of intent as to the charged crimes.
No need to remand to develop ineffective assistance claim, given evidence of guilt.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7D8985C55A9B312B852582A60052550E/$file/14-3003.pdf
Tenth Circuit: United States v. Melgar-Cabrera
Federal statute providing for incarceration for murder with a firearm is a separate offense, not a sentencing enhancement, given post-Apprendi jurisprudence.
Statute requiring the element of physical force in the commission of a felony implies the requirement of violent force.
Offensive touching can be sufficient force for Hobbs Act robbery.
Indirect force can be a use of physical force under the statute.
https://www.ca10.uscourts.gov/opinions/16/16-2018.pdf
Statute requiring the element of physical force in the commission of a felony implies the requirement of violent force.
Offensive touching can be sufficient force for Hobbs Act robbery.
Indirect force can be a use of physical force under the statute.
https://www.ca10.uscourts.gov/opinions/16/16-2018.pdf
Tenth Circuit: Utah Republican Party v. Cox
Denial of en banc.
Concur from CJ: Supreme Court should review. Judicial regulation of political primaries imperils associational rights and substantive ends.
https://www.ca10.uscourts.gov/opinions/16/16-4091.pdf
Concur from CJ: Supreme Court should review. Judicial regulation of political primaries imperils associational rights and substantive ends.
https://www.ca10.uscourts.gov/opinions/16/16-4091.pdf
Ninth Circuit: US v. Hans Elding
State assault with a deadly weapon statute is a valid predicate crime of violence, as the requirement that the victim's immediate fear of reasonable bodily harm implies a use or threatened use of physical force.
As state robbery statute can be violated with violence to property, it isn't a categorical predicate crime of violence, and it doesn't match the generic definitions of robbery and extortion.
Questions about advisory sentencing guidelines are addressed under the rule of lenity.
As there is no requirement that the force used be violent, the state extortion statute isn't a predicate crime of violence.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf
As state robbery statute can be violated with violence to property, it isn't a categorical predicate crime of violence, and it doesn't match the generic definitions of robbery and extortion.
Questions about advisory sentencing guidelines are addressed under the rule of lenity.
As there is no requirement that the force used be violent, the state extortion statute isn't a predicate crime of violence.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf
Ninth Circuit: NLRB v. Ironworkers Local 433
First Amendment ruling as to speech against the government was an insufficient change in existing law to justify relief from judgment enforcing a contempt adjudication on secondary picketing under the Act, as alternate mechanisms of speech such as leaflets are still available, and the Act is content-neutral.
Concur: Not ripe, as only a vague desire to picket, and no indication of enforcement plans by management.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/88-07283.pdf
Concur: Not ripe, as only a vague desire to picket, and no indication of enforcement plans by management.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/88-07283.pdf
Eighth Circuit: Leslie Camick v. Jefferson B. Sessions III
As an alien has the power to challenge the knowingness of waiver and petition for an extension, overstaying a voluntary departure order exhausts the benefit of permitted departure and allows the government to finalize the alternative order of removal, with all waivers of the voluntary departure grant intact.
(Again, all this is quick work. Not legal advice. Don't rely.)
http://media.ca8.uscourts.gov/opndir/18/06/163506P.pdf
(Again, all this is quick work. Not legal advice. Don't rely.)
http://media.ca8.uscourts.gov/opndir/18/06/163506P.pdf
Seventh Circuit: Warren Johnson v. Advocate Health and Hospitals
Reported statement of partially anonymous comparator as to their pay is neither hearsay nor sufficient to establish the validity of the comparator.
Descriptions of comaparators on unfair promotion claim, unfair assignments claim, and termination claim were not specific enough to establish them as legitimate.
Sworn statements and depositions averring discriminatory language suffice to present an issue for trial.
Even where a contractor performs many supervisory duties, a supervening agent who retains the ability to hire, fire, and discipline workers (beyond "rubber stamp" approval) can be liable for a claim of workplace discrimination.
Concur/Diss: Reported workplace speech was too sporadic to present an issue of a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-08/C:16-3848:J:Rovner:aut:T:fnOp:N:2168250:S:0
Descriptions of comaparators on unfair promotion claim, unfair assignments claim, and termination claim were not specific enough to establish them as legitimate.
Sworn statements and depositions averring discriminatory language suffice to present an issue for trial.
Even where a contractor performs many supervisory duties, a supervening agent who retains the ability to hire, fire, and discipline workers (beyond "rubber stamp" approval) can be liable for a claim of workplace discrimination.
Concur/Diss: Reported workplace speech was too sporadic to present an issue of a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-08/C:16-3848:J:Rovner:aut:T:fnOp:N:2168250:S:0
Seventh Circuit: EEOC v. CVS Pharmacy, Incorporated
Award of fees against the Commission was an abuse of discretion, as there was a colorable argument that neither the Commission's own conciliation requirement nor the statutory requirement for same was a prerequisite to suit.
Sixth Circuit: United States v. Trevon Barcus - Eastern District of Tennessee at Knoxville
Categorically, the state statute was not a valid predicate for statutory offender registration, as it did not incorporate the specific intent required by the federal statute.
Given the statement in the commentary to the statute, offender lifetime monitoring is a valid predicate for a sentencing bump for crimes committed during a criminal justice sentence.
Release conditions mandating psychological treatment and polygraph are reasonably related to registration offense.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0109p-06.pdf
Given the statement in the commentary to the statute, offender lifetime monitoring is a valid predicate for a sentencing bump for crimes committed during a criminal justice sentence.
Release conditions mandating psychological treatment and polygraph are reasonably related to registration offense.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0109p-06.pdf
Sixth Circuit: Barbara Fletcher v. Honeywell Int'l, Inc.
The durational clause of a CBA applies to health coverage absent clear affirmative language to the contrary.
Lifetime health benefits for survivors of workers does not imply a similar vesting for workers; in fact, it argues against any ambiguity as to the question where the agreement is silent on that point.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0108p-06.pdf
Lifetime health benefits for survivors of workers does not imply a similar vesting for workers; in fact, it argues against any ambiguity as to the question where the agreement is silent on that point.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0108p-06.pdf
First Circuit: Caraballo-Caraballo v. Administracion de Correccion
In assessing comparators for a claim of workplace discrimination, the plaintiff's demonstrated ability in performing the present job should be taken into account.
Transfer to the Commissary, even absent diminution in rank or pay, was a sufficiently adverse employment action.
http://media.ca1.uscourts.gov/pdf.opinions/16-1597P-01A.pdf
Transfer to the Commissary, even absent diminution in rank or pay, was a sufficiently adverse employment action.
http://media.ca1.uscourts.gov/pdf.opinions/16-1597P-01A.pdf
First Circuit: US v. Rivera-Hernandez
Sentencing judge appropriately considered deft's particular situation, given reasoning outside of the sentencing memorandum.
No error in within-guidelines sentence above the level set by plea deal.
First Circuit: Doe v. Trustees of Boston College
State contractual guarantees of good faith and fair dealing apply to a student's relationship with their university; where procedures are published, this duty is displaced by a contractual guarantee of compliance with the stated procedures.
While the school's procedures were generally in accord with the published rule, possibly prejudicial ex parte communications during the tribunal's deliberations present a genuine issue of material fact for trial.
Despite plaintiff's indications of intent to file a lawsuit, an email from an officer of the deft promising an independent investigation did not create a binding contract, as plaintiff never evinced a willingness to strike a deal -- there was no consideration.
Statistics alone can't establish a Title IX claim on the outcome or for deliberate indifference; the specific mechanism of discriminatory action needed to be identified.
Procedural unfairness in student disciplinary decisions sounds in contract, not tort.
http://media.ca1.uscourts.gov/pdf.opinions/16-2290P-01A.pdf
While the school's procedures were generally in accord with the published rule, possibly prejudicial ex parte communications during the tribunal's deliberations present a genuine issue of material fact for trial.
Despite plaintiff's indications of intent to file a lawsuit, an email from an officer of the deft promising an independent investigation did not create a binding contract, as plaintiff never evinced a willingness to strike a deal -- there was no consideration.
Statistics alone can't establish a Title IX claim on the outcome or for deliberate indifference; the specific mechanism of discriminatory action needed to be identified.
Procedural unfairness in student disciplinary decisions sounds in contract, not tort.
http://media.ca1.uscourts.gov/pdf.opinions/16-2290P-01A.pdf
First Circuit: US v. Laureano-Perez
Sentencing judge sufficiently weighed individual concerns, given recitation of deft's age, education, and work history.
Given that the present crime occurred while on supervised release for a drugs offense, no error in drug testing as a release condition.
http://media.ca1.uscourts.gov/pdf.opinions/16-2399P-01A.pdf
Given that the present crime occurred while on supervised release for a drugs offense, no error in drug testing as a release condition.
http://media.ca1.uscourts.gov/pdf.opinions/16-2399P-01A.pdf
First Circuit: US. Robles-Paron
Claim of ineffective assistance and judicial error in sentencing need not be refiled in a collateral proceeding where the government stipulates to the error. Sentence can be vacated and remanded on direct appeal.
Judicial sentencing script sufficiently weighed individual considerations, and did not impermissibly focus on social concerns.
http://media.ca1.uscourts.gov/pdf.opinions/16-2455P-01A.pdf
Judicial sentencing script sufficiently weighed individual considerations, and did not impermissibly focus on social concerns.
http://media.ca1.uscourts.gov/pdf.opinions/16-2455P-01A.pdf
First Circuit: Caraballo-Caraballo v. Administracion de Correccion
When a superseding indictment adds charges arising out the same act, transaction or common scheme, the Sixth Amendment speedy trial clock for the added charges still runs from the initial indictment.
The protections of the Sixth Amendment are generically distinct from Due Process and double jeopardy, and differ from the statutory protections offered under the Speedy Trial Act; the protection therefore arises directly from the Sixth Amendment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1961P-01A.pdf
The protections of the Sixth Amendment are generically distinct from Due Process and double jeopardy, and differ from the statutory protections offered under the Speedy Trial Act; the protection therefore arises directly from the Sixth Amendment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1961P-01A.pdf
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