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.
State workers compensation award calculated based on the percentage of disability and awarded as a lump sum, minus attorneys fees, with payments then disbursed as pro rata as monthly payments is a state award that statutorily offsets the subsequent federal indemnification of the federal award against the bankrupt employer where the pro rata state award weeks are within the federal benefit period.
Stress and confusion caused by the receipt of dunning letter is insufficient Article III injury for standing to sue under the debt collection statute.
Given actual knowledge by counsel, a class action opt-out terms letter sent by regular mail sufficed for notice, given the finding that the letter was not returned by the post office, and the testimony of the plaintiff that the letter was addressed correctly.
Given counsel's actual knowledge, court did not abuse its discretion in not permitting a late opt-out.
Since the opt-out procedure was specified in excruciating detail, and courts have an interest in uniform mechanical procedures, continuing a lawsuit on the same claim in a different forum was not a reasonable indication of a desire to opt-out.
As the side effects of the medications are relevant to the administrative hearing only to the degree that they affect performance of work, absent a showing that the work was actually affected, the ALJ was not required to make findings on the effects of the medications.
Denial of severance in capital trial of two prisoners was not an abuse of discretion; jury presumably followed court's instructions, the extensive priors of one co-deft were not unduly prejudicial, and the co-deft's co-conspirator's admissions would have been considered anyway in a separate trial as a statement against interest.
Jury not unduly prejudiced by disclosure at trial that one co-deft had murdered another inmate by stomping on his head.
Since both defts were convicted of beating the victim to death, no plain error in finding that, even if one of them only abetted in the actual murder, the mental state would be sufficient for the death penalty.
No abuse of discretion in arguments about future dangerousness discussing other prisoners who had committed prison murders after commutation of death sentence.
No plain error in discussion of commutation of death sentence that might suggest to the jury that the ultimate responsibility for the sentence might be elsewhere.
No abuse of discretion in government's characterization of mitigation evidence as mitigation of the crime rather than penalty-phase considerations, as the government later appropriately characterized the role of mitigation evidence generally, and a curative instruction was given.
No plain error in government statements about doing justice and the deft's intent to kill.
No plain error in introduction of evidence from unmirandized psychotherapist sessions in rebuttal, since deft had placed his mental health in issue by raising past difficulties in mitigation.
No error in the Sixth Amendment deprivation of counsel during the psychotherapist's examination, as the deft did not establish that the interview was to assess future dangerousness.
Common law psychotherapist evidentiary privilege does not exist in the penalty phase of a capital trial; if it did exist, violations here would not be plain error. Potential circuit split flagged.
No plain error in government's mitigation phase rebuttal witness' straying into discussions of present events.
Exclusion of warden's statement describing victim's conduct that led to the murder was not an abuse of discretion, as the warden was a single deft in a civil suit, and not speaking for the Bureau.
No abuse of discretion in excluding evidence of plea deal in second murder that was introduced as an aggravating factor in the penalty phase.
No plain error in introduction of acquitted conduct in future dangerousness consideration.
No error in categorical analysis of priors as aggravating factors, since the alternate holding of non-statutory aggravators would not have been perceived as less convincing if the statutory factors had been excluded.
Given circuit precedent that Hobbs Act Robbery is a crime of violence, the conviction survives as an aggravator despite the recent Supreme Court holding on the method of identifying crimes of violence by means of a statute's residual clause; nonviolent Hobbs Act Robbery would be Hobbs Act Extortion.
Jury form that requires juror to first determine the existence of a factual situation before deciding that it is mitigating does not offend the statute that says that a finding of the existence of the fact establishes the grounds of mitigation.
Court's instructions on future dangerousness did not improperly marshal the evidence for the government.
Denial of non-unanimity instruction was not an abuse of discretion; refusing to answer a jury deliberations question about non-unanimity was not error.
Conferences allegedly missing from record do not justify reversal; the conferences were neither a hearing or trial nor a judicial proceeding.
Cumulative error unavailable, since no errors were found.
State environmental approval rulemaking wan't arbitrary and capricious; the standards are set out in a parallel section of the Code dealing with reservoir protection, and the delay of the approval for the challenged section until the central pipeline had attained the necessary approvals was akin to moving a pipeline to avoid a stream -- a temporal rather than spatial accommodation.
As the state's clean water laws flow from the federal laws, state agency's consideration of function and use did not displace federal review.
Explanation that didn't cite the relevant standard sufficed, because it tracked the language of the relevant standard.
On remand, state must explain incongruities in finding and why the department opted for a temporary denial rather than a provisional approval.
As the information in the government database is open to the public by the terms of the relevant statute, the unavailability of portions of it is an injury sufficient for Article III standing.
When an agency removed all internal hearing records from public access after the discovery of personally identifiable information contrary to statute, the decision was not a final agency determination of rights and obligations susceptible to APA challenge; the present challenge is a programmatic attack on the pace of record restoration.
Deft's unmirandized statements were made in an apparent situation that, if taken as true, would have been considered sufficiently custodial. Absent any evidence in the record of counsel's strategic considerations in not attempting to suppress the confession, an evidentiary hearing is warranted for the collateral challenge, especially since the deft was, as a matter of law, prejudiced by the admission.
Disaster support agreement between federal agency and state was an enforceable contract, not a gratuitous provision of resources.
Nonfrivolous assertion of contractual breach by the government sufficed for Claims Court jurisdiction.
Request for assistance and project worksheets did not constitute an express contract; as there was no mutual intent to contract, there was not an implied in fact contract.
As a component of local government, hospital's claim to be a third party beneficiary of a contract between the state and the federal agency is sufficient to state a claim, since the contract named the locality.
As the funds were provided to the hospital contingently, and subject to express conditions, the recoupment of the funds was not an illegal exaction.
Although the requested recovery of funds is equitable it is materially indistinguishable from a claim for reimbursement, and the claim is essentially contractual in nature, giving clear jurisdiction to the Claims Court, an adequate non-APA judicial remedy preferred by statute.
Claims are patent ineligible mathematical algorithms, basic processes fully disclosed in prior art, and with no real mechanical or computing architecture correlative.
Agency had an obligation to establish by substantial evidence that the employee's performance was subpar both after the notice of potential dismissal and before the notice of potential dismissal. Upon sufficient showing, the burden would then shift to the employee to establish discriminatory motive.
When the employee asserted that the performance report was due to protected military service commitments, administrative review had an obligation to assess the relevant factors, rather than just saying that the case hadn't been made.
In considering whether a reasonable person would have thought that they could have walked away from an allegedly consensual encounter with the police, the race of the suspect is not a relevant factor. This consideration would be insufficiently universal to be objective, and offends Equal protection.
Concurrence in J:
Ideally, the law would be that the police must affirmatively clarify whether a suspect is free to leave an allegedly consensual but inherently coercive encounter. Offends Equal Protection.
Bankruptcy court's removal of the debtor-in-possession in favor of a trustee prompted a loss of authority over the estate that constituted sufficient injury for Article III standing to challenge the removal.
In denying the motion for reconsideration made by newly retained counsel, the court merely noted that the pro se petitioner had not advanced any arguments supporting the claim. Denying the motion to reconsider without considering any of the arguments raised by the parties precludes meaningful appellate review, and constitutes insufficiently reasoned judicial decisionmaking.
Since, after the accident, the device manufacturer was merged into the injured employee's employer, the manufacturer can't presently be considered a third party tortfeasor, even the the person of the employer as successor in interest.
The law of the state disfavors the dual capacity exception to exclusive liability.
Dissent: The state's courts have recognized an exception where there is a distinct, separate legal persona.
Evidence of witness' subsequent admission that she was under the influence of narcotics while testifying that she was not a drug user is not new evidence sufficient to revisit the conviction, since the disclosures do not rise to the level of addressing basic competency to testify, and would at most be in for impeachment.
Government concealment of witness' mental state would not rise to the level of a Brady claim.
No abuse of discretion in refusal to grant downward variance from sentencing guidelines.
Concur in J:
The disclosures about the witness are new evidence, but aren't material.
Statutory Habeas is not available to challenge convictions for which a discrete sentence was imposed when that sentence runs consecutively with multiple terms of life imprisonment that are set to run concurrently and that would not change absent some extraordinary and unexpected change in the law, as the challenged conviction would be harmless error.
The website statement preexisting the nondisparagement agreement that applied to prospective communication, statements, and conduct did not breach the agreement, since the statement was published to the website before the agreement.
Litigation affidavit enjoyed absolute immunity from the nondisparagement terms, since it was relevant and pertinent to the matter before the court.
Statements made to plaintiff's agents posing as prospective employers did not implicate the nondisparagement agreement's limitations on communications with potential employers.
Court's order prohibiting a released detainee's subsequent detention, since it was enforcing an earlier magistrate's holding that the detainee be released, is not within the general immigration removal of jurisdiction.
The bail reform statute does not preclude the pre-removal detention of an alien subsequent to the alien's release under the statute.
Administrative regulations prohibiting a criminal defendant from leaving the country refer to voluntary departures.
The detention does not violate the separation of powers.
Court below did not make formal findings about how the distance that lawyers had to travel related to the Sixth Amendment rights of the deft.
Although the hospital had the authority to order the physicians' group to terminate the services of one of its employees providing services at the hospital, that single fact is insufficient to present a genuine issue of material fact for trial on the question of whether the two enterprises were sufficiently integrated to create liability under the act.
The two entities also, as a matter of law, were not joint employers of the plaintiff, as the hospital did not have the power to hire, the plaintiff set his own schedule, and the two enterprises were not economically integrated.
Plaintiff did not have a contractual relationship with the hospital sufficient for a S1981 claim, and the two entities were sufficiently distinct to establish that he wasn't a contractor of the hospital.
Since the parties agreed to remove the provision of the standard form insurance contract relating to the priority of ex ante mechanics liens, the related-back ex ante mechanics liens are not covered by the general provisions of the form contract that protect claim priority generally.
Showing of costs and limited participation in negotiations insufficient to establish loss from dual representation under duty-to-defend.
Species mortality limit was not arbitrary and capricious, since the additional discussions mentioned in the agreement are superfluous to the hard take limits.
Agency's determination of the several effects of other projects and the cumulative effects of all projects in the designated region was not arbitrary and capricious.
Bivvens remedy not available for a prisoner's grievance retaliation claim under the First Amendment.
The class claim is sufficiently predominant, since all of the customers--even those who benefited--paid the fee; determining individual statute of limitations issues would be merely ministerial; defendant's general concealment underlay each instance of fraudulent inducement; appraisal variance would be merely ministerial; and the statutory damages are uniform.
Although the agreement's reference to a timely appraisal was insufficient guarantee to create a contract, the taking of a security deposit for the purposes of verifying identity and credit formed a binding contract.
Under the state's law, the covenant of good faith and fair dealing is relevant only to the analysis of actual breach of contract.
Concealment of potential improper contact with appraisers was sufficiently proximate to the formation of the agreement with the homeowners to qualify as unconscionable inducement under the state's statute.
Dissent:
Practice was customary in the industry; no actual inducement; communications with the appraiser did not breach the agreement to provide an appraisal.
Actual conditions of prisoner's solitary confinement present a genuine issue of material fact for trial.
State statute imposing conditions for the incarceration of prisoners whose death sentences have been commuted, passed after the legislative elimination of the death penalty and prior to the judicial determination that those already sentenced to death should have their sentences commuted, was an unconstitutional Bill of Attainder, imposing specific punishments on implicitly designated specific persons without the benefit of trial.
Classification of prisoner as a higher security threat than others similarly situated had no rational basis, and violated Equal Protection.
Concurrence:
Eighth Amendment claims of mistreatment of prisoners require an element of subjective intent.
Since the named members of a putative class didn't individually join the appeal, they can't participate in any action subsequent to the disposition of the appeal; they were not included in their capacity as others similarly situated, although they might have been included if the appeal had been filed by a putative representative et al.
Since the defendant added subsequent to the appeal was in privity with the original defendants and the cause of action arose from the same transaction or occurrence, res judicata prevents the named non-appellants from pursuing their claims against the new party.
Court did not abuse discretion in denying the motion to reconsider.
Since the video streaming service's removal of the Plaintiff's account was a good faith effort to enforce an internal policy that was aimed at removing objectionable content, the federal statutory safe-harbor applies, preempting state antidiscrimination laws and state public forum content-neutrality laws.
Docketing of hand-written documentation of pretrial conference report and stipulations prior to its being typed up meant that revisions other than the typing would require the modification of the order into which the report and stipulations were incorporated.
Plaintiff did not make sufficient showing of undue hardship to justify discharge of the statutorily protected debt.
Court erred in assigning the term the meaning it served in the description of the function of the device within an unclaimed surrounding mechanism.
The doctrine of equivalents is not a binary question of vitiation, but a reasoned inquiry that looks to the degree that the second device performs the same function, in the same way, and achieves the same result.
Again, perhaps. Not really at all Patent-savvy in this quarter.
Although the claim sounds in contract, the requested relief requires reversal of agency determinations under the APA; the proper forum is therefore District Court, not the Court of Federal Claims.
Judicial review of a decision on estoppel during the institution and pendency of an IPR is appropriate, because the estoppel statute applies to the duration of the action, not just the decision to institute proceedings.
Board correctly did not estop the party's claim, since there was no evidence of actual control and direction between the interested party and the litigating party, and the pre-existing relationship was not one that suggested coordinated action.
Given the plain language of the statute, the claim that the interested party was not estopped from raising was fair, as that specific claim had not arisen in the earlier action.
Substantial evidence for Board's obviousness and disclosure determinations.
(Perhaps. We don't know many things, but we especially don't know Patents. As always, entertainment value only.)
Administrative remedy for unfavorable employment action must consider the penalty imposed, not because it has the power to mitigate it, but because it forms part of the substance of the decision.
Error for the agency to remove an employee under the non-retroactive statute for conduct occurring before the statute became law.
As the FOIA requestor's intention was to write a book published by an academic press, it was an abuse of discretion to hold that the motive for the request was commercial in nature.
Even if no circuit precedent clearly defined the right, applying a taser to a teenager having a seizure while being held down by several police officers falls within the "obvious clarity" exception; the denial of qualified immunity was therefore appropriate.
The lack of intervention from the officer's supervisors derivatively falls within the same exception.
Even if the officer had arguable probable cause for detaining the teenager having a seizure, the manner of detention also enters into the S1983 calculus.
By considering the information provided and holding a hearing on the matter, the immigration judge took care in determining the competency of the pro se alien defendant sufficient to assure fundamental rights of Due Process; although the alien reported that the voices that he was hearing in his head disturbed his thought processes, his demeanor appeared sufficiently lucid and responsive.
Right to counsel claim under the Rehabilitation Act required administrative exhaustion.
For immigration law purposes, recklessly threatening substantial property damage with actual intent to interrupt public access to a portion of the building is a crime of moral turpitude. The specific intent of the state statute is a sufficiently aggravating factor under circuit precedent.
Although subjective ability to dissociate and reflect is relevant to determining whether two acts are divisible, a three day gap sufficed to establish the division as a matter of law.
Chevron deference to agency on the question of whether the agency should consider the insanity element of the criminal plea, as a prior apparently contradictory agency interpretation spoke to the evidentiary bounds of the agency's consideration, and the cited opinion addressed the appropriate substantive grounds for the agency's consideration.
Concur/dissent:
Agency shoudl have considered mental health element of plea in relevant conviction; arbitrary application of precedent dejustifies deference.
Vacatur with instructions from the Supreme Court of the US presents a jurisdictional limit to the review on remand.
Unambiguously, the sentencing reform statute applied only to those sentences imposed after its effective date; cases pending on direct or collateral review where the sentence had already been imposed were not affected by the statute.
Even if made in a good faith belief in the validity of the claim, lawsuits and communications made to collect time-barred debts (and that do not acknowledge the lapsed time limit) are both unfair and misleading, and incur strict liability under the federal debt collection law. A mistake about the state law statute of limitations underlying the claim is a mistake of fact that might qualify as an exculpatory bona fide error under the federal law.
Where the meaning of the state statute is plain, categorical review of state criminal statute for purpose of immigration law does not require that the petitioner establish that there is a reasonable probability of prosecution for conduct falling within the state statute but not within the scope of its federal analogue.
The statute regulating time from indictment to trial cannot be tolled for general court congestion, even when the Judicial Conference has declared an emergency in that district. Remand to decide whether dismissal is with prejudice.
Anxiety is insufficient prejudice upon which to base a Sixth Amendment speedy trial claim.
Concurrence: Delay was due to counsel's last minute disclosures, not general congestion.
As there was no contemporaneous objection to the exclusion from statutory calculations, review should be for plain error.
(Not labelled a concurrence in judgment, but begins by explicitly agreeing with the relief and then setting forth different reasoning.)
Actionable refusal of settlement was within the terms of the policy as an act deemed wrongful by timely reporting, despite an earlier holding of the court that the act was ultimately not wrongful as defined by a separate exclusion within the policy.
As a claim is an assertion of an existing right, demands for damages and indemnification prior to the change in the law that created the right of recovery against the plaintiff were not considered claims under the policy.
Rise in tolls ultimately directed to state treasury rather than maintenance does not unconstitutionally burden interstate commerce, because the state is acting as a marketplace participant; at the time of the Founding, roads were largely private, and the state has a right to its revenues.
Disproportionate effect on interstate commerce was not established, and is irrelevant to the state's actions as market participant.
Given the proximity of the guns to the drugs in the deft's domain, sufficient evidence to establish a sentencing bump by a preponderance, despite acquittal on the drug trafficking charge.
Although the denial of compassionate release during the pandemic looked to commentary in the guidelines that applies only to motions by the government, it also individually considered the other appropriate factors, and the denial can be upheld on those grounds.
The modification to the Habeas statute requiring that the application be filed with the sentencing court is jurisdictional limit on the original statute.
Given the savings clause, the federal statute doesn't create field preemption.
Although employees can seek relief under state or federal statutes, the federal statute preempts any state tort claims within its scope.
Bivvens not extended to cover a federal agent's preventing the plaintiff from leaving a parking lot and then using excessive force to effect an unlawful seizure.
Court's order requiring an in-person appearance at arraignment is not subject to interlocutory review under the criminal collateral order rule.
Court's requirement that the deft secure housing within the district of the court was a reasonable amendment to the release conditions, given the deft's reluctance to travel during a time of pandemic disease. Due Process did not require a hearing, or a finding of a violation of the prior conditions.
Concur/dissent: a requirement to secure new housing four days before an arraignment with presumptive incarceration isn't ripe for review, as a subsequent release condition wouldn't be a modification but a new finding.
Dicta: Court did not sufficiently take into account administrative determination that in-person hearings presented a danger.
Federal officer removal was appropriate, because at the time of removal, there was a colorable claim that the government was specific and complete, the contractor could not deviate from it, and it was implemented under the direct supervision of the government, and the government had more comprehensive knowledge of the risk at issue than did the contractor.
Challenges to discovery orders must identify the crucial evidence that would otherwise have been obtained.
As the expert testimony claiming exposure to the substance prior to the enactment of the statutory exclusive remedy was derived from factual assumptions rather than actual evidence, the statute provides the sole remedy.
Communication with an employee of a represented corporate party whose statements might be imputed to the corporate party wasn't an abuse of discretion, but as fee-shifting isn't in the state's rules, imposing a monetary sanction would require a finding of either bad faith or willful disobedience of a court's order.
Clear error to exclude evidence in preliminary injunction hearing as hearsay following finding that the situation lacked sufficient urgency to justify admitting hearsay; in a preliminary injunction hearing, the hearsay nature of the evidence always goes to the weight of the evidence.
Clear error to exclude a category of evidence in a preliminary injunction hearing after determining that two documents of the type were unreliable, and another after being unable to determine the reliability of that type of evidence (latter harmless error). Everything in for appropriate weight.
For purposes of the obstruction statutes, a minor delay is not per se a reasonable obstruction; the court must still determine if the delay was a reasonable one.
Placement of signs on a sidewalk in a manner that does not functionally exclude access can still be an attempt to intimidate or obstruct within the terms of the statute, even if no pedestrians appear.
When a protester's actions necessitate that an escort step in front of the protected person, the protester has caused the physical obstruction defined in the statute.
Regardless of the consensual nature of the conversation, speaking to someone inside a vehicle through an open door or placing hands on the car while speaking impeded the car from driving away, and could be considered obstruction.
When taken in the context of recent local violence, and given the subjective fear that the listeners felt, stating that death might come at any time would objectively be taken as a true threat not protected by the First Amendment; similar statements conjoined with an exhortation to repent, or referencing disasters distinct from recent local violence present a different question.
As the decision to have an abortion involves a formidable and poignant process, protesters' seeking to force their ideals on patients approaching a facility creates an inference of intent to harass, annoy or alarm. An explicit or implicit request to be left alone dispels the legitimate intent of potential interlocutors.
Likely repetition of the violations of the statutes suffices to establish irreparable harm for the injunction.
In the interests of judicial economy, cross-appeal of non-movants' early motions not referenced in the memorandum denying the preliminary injunction are appropriately addressed in the appeal of the denial of the injunction under pendent jurisdiction.
Abortion facility speech limitations are content neutral, as they apply to every abortion facility in any context.
Statutes not void for vagueness, given general definitions in criminal code.
Municipal statute creating a cause of action for "any person" legitimizes a parens patriae action by the state in which the municipality is located; sufficient quasi-sovereign interest demonstrated here.
Concurrence:
Municipal statute is a state statute, since the municipality is a creation of the state; certifying the question to the state would be necessary to determine if the state could act parens patriae by its own statute.
Concur/Dissent:
General dissent as to not honoring the determinations of the finder of fact.
Since the cause of action doesn't list government bodies and the rest of the code generally does, and the statute designates a specific enforcement entity with power to seek an injunction, the state does not have parens patriae standing.
Courts are permitted to consider hearsay in a preliminary injunction hearing; they are not required to do so.
Statute's restriction on making access unreasonably difficult or dangerous explicitly excludes de minimis interference. Concluding otherwise impermissibly burdens speech.
Finder of fact held that a reasonable observer familiar with the speaker's preaching would not have interpreted the statements about impending death as true threats.
Irreparable harm finding requires ongoing plans and activities.
Completing a form to report tax noncompliance under a statute that authorizes the payment to the reporter of the portion of the monies recovered does not create an enforceable contract with the government; a contract arises only if the reporter and the government specifically negotiate its terms.
Appeal sufficiently indicated its scope despite not mentioning the collateral order at issue; additionally, defts did not suffer prejudice by the omission.
Reasonable finder of fact could have determined that the use of force to trip up a suspect while holding his arms was a use of excessive force under the Fourth Amendment.
Circuit precedent on the right to be free of nontrivial force when engaging in passive resistance sufficiently clearly established.
Sufficient evidence for a reasonable finder of fact to conclude that the deft sold the drugs that caused the death, although the trace amounts found afterward were of the mixture's component parts.
As the executive had access to the financials, exercised purchasing authority, and ran the day-to-day operations, evidence was sufficient for a finding of willful blindness as to the representations; also, the willful blindness instruction was appropriate.
Indictment alleging two codefts engaged in conspiracy and wire fraud was not constructively amended by a theory of the case that the offenses were committed with others as opposed to each other, since the text of the law refers to a single defendant.
No clear error in the court's refusal to give an explicit unanimity instruction, or in not explicitly defining the scienter alternatives to willful blindness.
Court's not polling the jury can't be raised on appeal when explicitly waived at trial.
Requests for expenses in the current litigation did not amount to a false statement of monies owed under the federal debt collection act.
Lawsuit that didn't meet the evidentiary burden for establishing the assignment of claims didn't offend the federal debt collection act.
Nicole Smith v. Stewart, Zlimen & Jungers, Ltd
(8th continues its run on "Cleaned Up," with five uses in 12 pages.)
Where a past admission against interest can't be rebutted due to a discovery sanction against the speaker, the statement must be taken at face value.
As the validity of the assignment of the interest hinged on the application of foreign law, a motion to consider foreign law in the proceeding was untimely when made at the summary judgement stage.
Agent testimony sufficient to establish by a preponderance that the deft committed bank robberies during supervised release; within-guidelines sentence wasn't an abuse of discretion.
Although the union is compelled by state law to serve as the exclusive bargaining agent for the relevant unit, including its nonmembers, and the courts have recently held that it is unable to assess compulsory representation fees on nonmembers, an injury giving Article III standing for a First Amendment challenge to the state statute would require an actual instance of a nonmember requiring representation under the statute, and standing would also require that a named defendant threatened an imminent enforcement of the state law.
Assuming, without extending the precedent, that political deceit can offend the Equal Protection Clause, the conduct alleged was sufficiently publicly known to allow the voters a free choice.
The District Court judge did not violate the First Amendment in holding that the plaintiff's campaign speech had sufficiently revealed the alleged deceit.
Although a plaintiff alleging a discriminatory retaliation need not provide evidence at the pleading stage, the facts described in the pleadings must allow an inference that the conduct alleged resulted from the protected conduct.
As the termination resulted from a situation that was a matter of past practice, the deviation from that practice concerned an implied term of the existing CBA, and was therefore appropriately categorized as a minor dispute subject to arbitration.
State law antidiscrimination provisions preempted by federal labor law requiring arbitration.
As the vested equity valuation was contractually assigned to the Board of Directors, a motion for a discovery continuance to reach outside auditors' valuations of the vested equity was untimely; an appeal challenging the exclusion of evidence must specifically identify the evidence and the legal standard.
Non-zero determinations of vested equity at time of hiring and in subsequent audits did not make the Board's determination of nil value unreasonable.
An unenforceable agreement to later agree on a severance agreement did not create any obligation on either party when severance happened prior to the formation of the agreement.
Claim of fraudulent inducement under state law requires actual reliance.
Misrepresentations of prior employment foreclose equitable relief in quantum meruit.
Discovery stipulation between parties during discovery was inappropriate, as the unilateral declaration of secret materials prevents the court from conducting the necessary public interest balancing when deciding whether the record should be sealed.
Statute on the misuse of passports can't be extended to counterfeit passports.
No plain error in lay identification of deft in photos, since the photos were from a time at which the witness knew the defendant.
No clear error in sentencing determination that all of the funds in the deft's account were proceeds of fraud.
Under the bankruptcy statute, the Trustee's interest in litigation relating to the estate is not pecuniary, but rather the obligation to administer the estate, and is therefore not extinguished by an agreement between rival claimants.
The reasonableness of litigation expenses is determined by asking whether it was an abuse of discretion at the time of the expense, not by an after the fact determination of the merits of the claim.
Pleadings categorically excluding any claims against a federal officer are generally to be honored, except where they are artful exercises in pleading designed to circumvent jurisdiction.
For purposes of federal officer removal from state court, the conduct that caused the harm need not be caused by the act performed at the federal officer's direction, but merely associated with an act performed at the direction of the federal officer.
Assuming without deciding that the Supreme Court holding that public sector labor unions are not able to compel representation fee payments from nonmembers is retroactive, a claim to recoup these funds under S1983 is an action for damages, not disgorgement, as the funds are no longer traceable.
Private citizens who rely in good faith on a state law later found to be unconstitutional can interpose a defense of good faith to an action for damages under the federal statute.
Assuming without deciding that the common law tort defenses at the time of the adoption of the federal statute determine which defenses are available to the statutory tort claim, the closest analogue to a private citizen's reliance on an unconstitutional state law is abuse of process, not conversion.
Statutory notice and comment provision in affordable housing rent increase procedures that places local approval prior to federal consideration do not create a procedural interest under the APA where a subsequent rulemaking reverses that order.
Statute of limitations begins to run, at a minimum, when a reasonably prudent person would have been able to determine the nature of the claim, not when the precise mechanism is explicitly identified. (Here, apparently, when one of two APA claims became apparent.)
Relevant statutory statute of limitations is a claims-processing rule, not a jurisdictional bar; the court can therefore consider a claim for equitable tolling.
As the agency actions were discrete instances, the continuing action doctrine does not save the claim against the S1983 statute of limitations.
When a minor child of a newly naturalized alien takes their place in the visa queue, the legislative purpose of the statutory tolling of the child's age for the purpose of the pre-naturalization visa dictates that its tolled "statutory age" be applied within the statutory scheme for the post-naturalization visa.
The legislative intent is sufficiently clear to make Chevron deference inapplicable.
A named class representative retains an interest similar to a private attorney general in vindicating a class claim where the class has been decertified, even if the class representative has subsequently prevailed on the merits as a private plaintiff.
A court retains the obligation throughout the litigation to sua sponte decertify a class that no longer meets the requirements of the rules; no finding of a significant intervening event is required.
The court has no sua sponte obligation to reform the class to meet the rules prior to decertification.
In determining probable cause for forfeiture, refusing to grant an adverse inference after discovery non-production is within the broad discretion afforded the court.
Deprivation of the commercial building's owners of the rights of management, including improvement, selection of and negotiation with tenants, and taking of rental revenues constituted a seizure.
Seizure of rental income is a form of taking the underlying property, not a taking of an interest in property, so the statute required appropriate procedures -- either a hearing or a finding of exigency.
Subsequent finding of probable cause doesn't retroactively justify the earlier taking of rents -- government must repay all rents seized prior to the court's finding.
Court has independent obligation to assure itself that parties have standing where the question is raised by an intervenor.
Although the Act contemplates state regulations and statutes that go further than its requirements, a state's claim that inadequate record-keeping demands will hamper enforcement is sufficient for standing, as the possibility of state action to remove the harm doesn't obviate the harm for purposes of standing, and additionally, and subsequent changes in state enforcement would have to be approved by the agency. Possibility of future harms from enforcement in other states is also sufficient for standing.
Rulemaking sufficiently explained its enforcement trigger levels and adequately addressed enforcement concerns.
Dissent:
Harm too attenuated for standing -- one theory requires an out of state polluter who applied under the permit scheme and pollutes undetetected, and the other theory relies on speculative noncompliance within the state.
As judicial review is limited to objections raised in proceedings before the Board, the Board's refusal to allow non-employee protected activity on the worksite by overruling of its own precedent on the solicitation exception stands, since the evidence of general animus wasn't introduced under that theory before the Board.
No error in exclusion of expert witness at summary judgment for the purposes of translating blurred video into spatial analysis, as the finder of fact would ultimately base their judgment on personal observation of the video. No error in the exclusion of expert witness on possible medical causes of decedent's behavior, as the officer's judgment was the relevant conduct.
Video evidence does not sufficiently discredit officer's account.
Suspect's biting of the officer's finger during the struggle made shooting the suspect several times in the chest a reasonable act, as the officer feared that he wouldn't be able to defend himself if the finger were to be lost. Earlier tasing of the suspect also held to be reasonable.
Dissents from both vacatur of en banc order and the reinstatement of the panel holding.
Dissent: The regulation is outside the statute; if the government doesn't raise Chevron, the deference claim is waived; lenity counsels the reading of the statute to the contrary.
Dissent: Deference is an aspect of statutory interpretation, which is the function of the courts.
Dissent: Criminal laws are not subject to Chevron deference.
In the motion for summary judgment, the court appropriately considered and weighed verified complaint as sufficiently evidentiary, as either met the standards for an affidavit, or stated facts within the personal knowledge of the party under penalty of perjury.
Contradictory testimonial narratives are insufficient basis for blatant contradiction exception in challenging factual determinations on appeal; there must be a visible fiction.
Documentary evidence does not utterly discredit claims of verified pleading.
Remaining claims outside the scope of review under the collateral order rule.
Violent arrest with dog was a violation of the Fourth Amendment; the precedent on use of force after the point at which the arrestee had ceased to resist constituted clearly established law.
Recital of state's advocacy for vaccination on form required to be signed by those refusing to have their children vaccinated doesn't amount to compelled speech or place any incidental burden on speech.
The requirement to sign the form is a neutral requirement of general applicability that does not cause an increase in the perceived harm of vaccination.
No equal protection claim, as the requirement to sign the form is a general one.
As each individual aspect of the claim is without basis, the hybrid nature of the claim doesn't justify strict scrutiny.
Traffic violation and subsequent flight established probable cause for stop and placing the driver in handcuffs.
Plain-view exception allows a police officer to shine a flashlight through the windshield after all of the suspects have left the car.
No error in declining to instruct on the lesser included offense of possession, as there was insufficient evidence probative of likelihood for individual use.
(Seven uses of "Cleaned Up" signal in nine page opinion.)
A federal court should abstain from determining whether minors are categorically entitled to counsel in child-removal proceedings -- rather, denials in specific cases are subject to first review by the state's courts.
Dissent from denial of en banc: Sentences must be upheld unless no reasonable jurist would have imposed them in the circumstances, the sentence is logical, and the terms are consistent with sentencing objectives. Reviewing court was insufficiently deferential to trial court's determination of mitigation.
Although a traumatic birth is insufficient to trigger the statute of limitations, the circumstances around the birth were sufficient to put a reasonable person on notice of the possibility of an actionable claim.
Federal tort claim act requires actual dismissal of intervening claim to trigger the statutory exception to the statute of limitations.
Statute of limitations not estopped by clinic's lack of explicit designation as a federally funded facility.
Equitable tolling unavailable, given publicly available database of federal health care providers.s
Although there was insufficient circuit precedent on the question to allow for the good-faith exception to cell phone searches prior to the Supreme Court holding limiting them, the admission of the evidence from the search was harmless error.
NB: Prior to this post, cell phone cases, including historical location data, were tagged under "Computer Law."
Equitable factors counsel against granting a preliminary injunction when the religious practice or meeting size is not currently the subject of regulation with a live threat of enforcement.
Courts must consider the fine-grained details of a public health order's restrictions on the practice of religion when considering injunctions.
Appeal of denial of preliminary injunction requested on substantive grounds cannot be converted to a procedural due process claim.
State RFRA and other state law claims possibly precluded by 11A bar on injunction against state officials, mootness against particular parties, and possibly arise outside supplemental federal jurisdiction.
Given that expert testimony sufficiently established that the DNA testing technology was generally sufficiently reliable, the question of its reliability when using small sample sizes is a matter to be determined at trial.
ERISA claim would be foreclosed by res judicata given the court proceedings related to the term of employment, even if the arbitration-ordered release of claims were to be vacated.
The visits to the house by the seller of drugs during the transactions created a fair probability or sufficient common sense inference for a search warrant for the house.
The appropriateness of a no-knock warrant sounds in S1983 claims, not a suppression hearing.
Since mutual promises are sufficient consideration under the state's law, there was sufficient consideration for the arbitration agreement.
Revision of the bank account terms to incorporate an arbitration agreement had insufficient mutual assent, as the terms were revised by simple notice and opportunity to cancel, creating a contract of adhesion, since the change in the terms was unreasonable and breached the implied covenant of good faith and fair dealing.
Sevier Cnty. Schs. Fed. Credit Union v. Branch Banking & Trust Co.
Where the insurance contract defines floods as occurring on normally dry land, the flood exclusion does not encompass boats damaged in harbor; given that plaintiff introduced evidence that the boats were not damaged by the change in water level, summary judgment for the plaintiff was appropriate.
Exclusions drafted within coverage provisions are addressed under the shifting burdens standard of state law; the plaintiff is not required to establish that the exclusion does not apply when establishing coverage.
Agreement reached between parties after summary judgment placing fault for damage on the acts of a third party while liquidating the remaining damages did not undo the grant of summary judgment.
Given finding that the deft abused (rather than merely used) illegal drugs, the court did not abuse its discretion in imposing a ban on alcohol consumption during supervised release; the condition is reasonably related to the verdict, the deprivation is minimal, and the condition is consistent with the goals of sentencing.
As civil immigration detainees fall outside the traditional employment paradigm, in in that the work is not a bargained-for exchange of labor, the federal minimum wage law does not apply. The situation of the detainees is similar enough to those in criminal incarceration that the rules for work in prison apply.
Historical cell site information obtained without a warrant appropriately considered under the good faith exception.
Where the underlying data was also admitted, testimony by only one of several collaborating investigators did not violate the Confrontation Clause.
Investigator's testimony that the technical evidence was consistent with the physical investigation was not improper vouching or bolstering.
As Hobbs Act Robbery is simply the common law felony in an interstate commerce and a non-physical threat therefore wouldn't fall within its scope, the completed crime is categorically a crime of violence.
As the attempt presumes the full offense, the US Code generally defines attempts specific to each offense, and the intent of the legislature was to prevent violent crime, attempted Hobbs Act Robbery is categorically a crime of violence.
Jury instructions sufficiently identified the robbery, and not the conspiracy as the predicate for convictions under the Hobbs Act.
Given intervening state court decisions, the economic loss doctrine (barring recovery in tort from claims arising from a contract) does not bar claims for economic loss under the federal deceptive practices statute.
Gist of the action doctrine does not bar recovery in tort for claims squarely arising in contract, where the contract is collateral to the fraud or negligence.
As Congress has explicitly recognized National Guard dual service technicians as civilian employees, a plain reading of the statute suggests that the employment does not fall within the military exception to the benefits limitation statute.
Circuit split flagged.
Court appropriately considered Plan Manager's contracts with employer in granting dismissal for not stating a claim; no discovery was required to establish authenticity.
Intermediary that compiles a list of investment options from which Plan Managers select fixed options (after selecting the intermediary) is not transformed into a Plan fiduciary by the infrastructure fees assessed to the providers of the investment options, the ability ot modify the array of options open to Plan Managers, or the funds provided by the participation by the Plan Beneficiaries.
Where deft counsel approves plan of insulating confession of codefendant from incriminating the deft, review is for plain error; in this case, no error plain or otherwise when incriminating conclusion could only be reached by inference.
District Court did not abuse its discretion in issuing a protective order prohibiting leaving cooperating witnesses' statements with the deft, as there was sufficient showing of good cause, the Jencks Act statutory right to the materials was adequately preserved, and deft's courtroom misbehavior justified the limitation on the 6A right to the materials.
Court adequately ensured sufficient Jencks Act access to agents' notes by questioning testifying agent as to scope of note-taking and accepting their answer.
Limiting instruction delivered standing-up after deft's courtroom outburst appropriately preserved the proceedings against mistrial.
Prosecutor's recital of plea condition that cooperating witness must tell the truth was not improper vouching, neither was the court's reference to "a cooperating witness of the United States of America."
No plain error in instruction on deft's testimony indicating an interest in the case, as it didn't belabor the fact; lack of limiting instruction against codeft's outburst wasn't plain error given other evidence of guilt.
Identification and withdrawal of claim of sentencing error during proceeding waives the claim in direct review.
No abuse of discretion in not considering mandatory minimums for other counts.
Court appropriately refused to consider elements of competency report as hearsay, as they lacked required indicia of credibility.
Plausible rationale makes 228 month bank robbery sentence not substantively unreasonable.
Deft claim that money could be cleaned from the damage done by anti-theft devices is speculative; FDIC coverage of stolen funds should not be considered in restitution order, as insurance is generally not considered.
No substantive sentencing error in 228 month sentence for bank robbery.
Ineffective Assistance claim insufficiently clear in the record for consideration on direct review.
There are a few more cases in the DC/Federal Circuits, but I'm out of time for this, so what happens in the Beltway stays in the Beltway.
Similarly, as useful as this is in the multitasking rotation, some projects will have my exclusive attention in the coming days. Back in about a week, G-d willin' and the crick don't rise.
(There have been times when this commonplacing covered absolutely every slip in the circuits, and I might get back to that, but not in the coming weeks.)
-CB
Former prisoner on federal supervised release might have reasonably believed that he was compelled by the terms of the supervised release to unlock his phone and answer the questions truthfully, so while the information can be used to revoke the supervised release, the 5A right to silence was invoked by operation of law, meaning that the information cannot be used in a subsequent prosecution.
Remand for consideration of inevitable discovery exception.
Dissent:
Deft's invocation wasn't automatic, since his subjective belief wasn't reasonable in light of the prevailing law.
A registered holder of a compilation copyright holds copyright in the totality of the work, not merely as described in the registration.
The protectable expressionof a day-planner notebook consists of the arrangement of the graphic and literary elements that might themselves be protectable works of authorship.
The order, dimensions, and division of the elements, however, is an unprotectable idea -- the protectable expression is limited to the material protected under authorship and its actual layout on the page.
Evidence of actual copying and significant sales does not as a matter of law present a genuine issue of material fact on a Lanham Act claim of product design trade dress -- the question of secondary meaning requires an interpretationof the meaning of sales and the form of the dress.
Substantial evidence that pension contribution scehme was integrated into the CBA, the Board decision affirmed the ALJ, who drew a rate from an earlier form of the agreement, but the ALJ's determination was arguably not dispositive of the holding, and substantial evidence exists to the contrary.
Accepted appendix to CBA and a reference in the CBA incorporating an attachment were sufficient writings to permit the pension contributions under a stsatute requiring written agreements for such payements.
Employer practice consistent with the writings at the end of the CBA meant that those terms remained in force after the period of the CBA, so the diminution of contributions was an unfair labor practice.
Disssent:
Unsigned, undated standalone writing insufficient. ALJ implicitly made this determination in accepting the earlier rate.
Anticompetitive effects of a supplier's monopoly behaviour on downstream adjacent markets are beyond the reach of Sherman Act rule of reason analysis, as the relevant market is different.
Refusal to deal horizontally with another supplier is outside of S2 where there is no indication that the dealing was profitable for the deft, there was a valid business reason to end the dealing, and the refusal to deal wasn't targeted.
Absent intentional deception, breach of contract to deal horizontally with other suppliers doesn't create a monopoly harm unless a harm to competition - as opposed to competitors - is proved.
Patent royalty rates different than the current market value of the technology are not inherently anticompetitive under antitrust law.
As the products of the supplier's rivals inherently embody some of the packaged patents, the supplier's licensing of the downstream use of its terchnology within its rivals products is not an inherently anticompetitive surcharge on its rivals products. Subsequent low but non-predatory pricing of its own units is also not an inherently anticompetitive behaviour.
A supplier's requirement that a downstream manufacturer commit to a license for products both supplied by the supplier and its rivals does not distort the area of effective competition; any unfair pricing of the license sounds in patent law, not antitrust.
Even if the exclusive dealing contracts that the supplier claimed were merely volume contracts in fact substantially foreclosed competition in the relevant markets, past harms do not justify a prospective injunction. And there were no viable competitors at the time.
Substantial evidence for denial of alien's claim of persecution because of her family's access to money, since within the claimed group, access to money is a more important factor than the fact of the family relationship.
Female heads of household and vulnerable females are not cognizable groups subject to persecution within the foreign country.
Although the photographs of the mannequins in the possession of the deft wasn't inextricably interlinked with the crime, their admission was more probative than prejudicial.
Testimony on historical abuse was appropriately admitted to establish character or propensity to commit certain acts.
Hearsay evidence from prior police investigation appropriately cabined by limiting instruction.
CJ:
Denial of a motion to intervene as of right, or, in the alternative, permissively is sufficiently final for appellate review even when made without prejudice, and the court invites the potential intervenor to file a "standby" motion not formalized in the rules.
Risk of nullification of right held under permit to build lucrative electrical transmission line suffice for standing in case adjudicating the permit.
Where a regulatory agency is defending a permit that vests economic rights in a company, the shared interests are not sufficient for a higher threshhold of shared interests. For the intermediate threshhold, more is required than simply being in favor of the same outcome. As the company's rights of eminent domain and its interest in the pace of the project are outside the regulator's remit, the company is entitled to intervene as a matter of right under the intermediate standard.