FTCA
Although the specific harms are not outlined in the latter statute, plaintiff's standing under FTCA is displaed by the CSRA, given that the harms are specifically employment-related.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30347-CV0.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.
Third Circuit: Group Against Smog and Pollution v. Shenango Inc
Administrative law - citizen suit/environment
Statute's requirement that there not be a pre-existing diligent prosecution of rights under the statute in order to permit a citizen suit is a substantive requirement, not a jurisdictional bar to suit.
A final judgment resulting from a diligent prosecution does not, in itself, remove the bar to citizen suit.
Diligent enforcement of outcome acts as a per se bar to citizen suit.
http://www2.ca3.uscourts.gov/opinarch/152041p.pdf
Statute's requirement that there not be a pre-existing diligent prosecution of rights under the statute in order to permit a citizen suit is a substantive requirement, not a jurisdictional bar to suit.
A final judgment resulting from a diligent prosecution does not, in itself, remove the bar to citizen suit.
Diligent enforcement of outcome acts as a per se bar to citizen suit.
http://www2.ca3.uscourts.gov/opinarch/152041p.pdf
First Circuit: US v. Cortes-Medina
Sentencing.
Facts in pre-sentencing report do not preserve challenge -- where deft does not challenge the omission in the argumentative portion, the challenge is waived.
Prior arrest record is distinct from acquitted conduct in sentencing considerations.
No abuse of discretion in sentencing court's omission of the recitation of sentencing factors.
Although the explanation of the sentence was insufficient under the statute, this alone does not suffice for plain error.
The substantive reasonableness of the sentence is determined with reference to the guidelines, not the agreement of the parties.
Dissent - When a court considers prior acquitted conduct without findings of at least a preponderance, it suffices even under plain error review.
http://media.ca1.uscourts.gov/pdf.opinions/14-1101P-01A.pdf
Facts in pre-sentencing report do not preserve challenge -- where deft does not challenge the omission in the argumentative portion, the challenge is waived.
Prior arrest record is distinct from acquitted conduct in sentencing considerations.
No abuse of discretion in sentencing court's omission of the recitation of sentencing factors.
Although the explanation of the sentence was insufficient under the statute, this alone does not suffice for plain error.
The substantive reasonableness of the sentence is determined with reference to the guidelines, not the agreement of the parties.
Dissent - When a court considers prior acquitted conduct without findings of at least a preponderance, it suffices even under plain error review.
http://media.ca1.uscourts.gov/pdf.opinions/14-1101P-01A.pdf
Tenth Circuit: Nesbitt v. FCNH
Arbitration
An opt-out clause in the agreement only speaks to the threshold question of scope of arbitration, and does not forestall an exemption from compulsory arbitration in order to effectively vindicate a claim.
Giver internal inconsistencies in the agreement and incorporated rules, a plaintiff might justifiably refrain from pursuing a claim, given the uncertainty of eventual reimbursement.
https://www.ca10.uscourts.gov/opinions/14/14-1502.pdf
An opt-out clause in the agreement only speaks to the threshold question of scope of arbitration, and does not forestall an exemption from compulsory arbitration in order to effectively vindicate a claim.
Giver internal inconsistencies in the agreement and incorporated rules, a plaintiff might justifiably refrain from pursuing a claim, given the uncertainty of eventual reimbursement.
https://www.ca10.uscourts.gov/opinions/14/14-1502.pdf
Tenth Circuit: United States v. Webster
4A/ Ineffective Assistance
No ineffective assistance Habeas, as the theft of personalty from the deft's house during the search did not justify a blanket suppression of the fruits of the search.
https://www.ca10.uscourts.gov/opinions/15/15-3027.pdf
No ineffective assistance Habeas, as the theft of personalty from the deft's house during the search did not justify a blanket suppression of the fruits of the search.
https://www.ca10.uscourts.gov/opinions/15/15-3027.pdf
Tenth Circuit: Espinoza v. Arkansas Valley Adventures
Liability/ Torts
There is no public policy bar to enforcement of a waiver of liability, given the generally permissive view of the legislature and the fact that the relevant misdemeanor negligence statute is silent as to the civil implications of negligence per se.
Strong drafting of release overwhelms considerations of the general characterization of risk
Dissent: Characterization of risk presents a genuine issue of material fact.
https://www.ca10.uscourts.gov/opinions/14/14-1444.pdf
There is no public policy bar to enforcement of a waiver of liability, given the generally permissive view of the legislature and the fact that the relevant misdemeanor negligence statute is silent as to the civil implications of negligence per se.
Strong drafting of release overwhelms considerations of the general characterization of risk
Dissent: Characterization of risk presents a genuine issue of material fact.
https://www.ca10.uscourts.gov/opinions/14/14-1444.pdf
Seventh Circuit: Tracy Williams v. Brandon Brooks
Sentencing
Imposition of boilerplate conditions on supervised release without specific findings upheld.
Conditions requiring that deft support family, regularly work at lawful occupation, alert govt to change of residence, not frequent places where drugs are sold, associate with those convicted of felony, consent to visits by govt officer, notify third parties of conviction impermissibly vague/not supported by findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:14-2458:J:Flaum:aut:T:fnOp:N:1681664:S:0
Imposition of boilerplate conditions on supervised release without specific findings upheld.
Conditions requiring that deft support family, regularly work at lawful occupation, alert govt to change of residence, not frequent places where drugs are sold, associate with those convicted of felony, consent to visits by govt officer, notify third parties of conviction impermissibly vague/not supported by findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:14-2458:J:Flaum:aut:T:fnOp:N:1681664:S:0
Seventh Circuit: USA v. Matthew Poulin
S1983 - false arrest
As plaintiff had no specific memory of activating the turn signal during the lane change, the arrest was lawful.
Deft's strange actions justified use of force in arrest.
State court's dismissal of charge of resisting arrest does not create a genuine issue of material fact as to whether the deft resisted arrest.
No FRE 408 claim against introduction of diversion agreement.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-1763:J:Flaum:aut:T:fnOp:N:1681632:S:0
As plaintiff had no specific memory of activating the turn signal during the lane change, the arrest was lawful.
Deft's strange actions justified use of force in arrest.
State court's dismissal of charge of resisting arrest does not create a genuine issue of material fact as to whether the deft resisted arrest.
No FRE 408 claim against introduction of diversion agreement.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-1763:J:Flaum:aut:T:fnOp:N:1681632:S:0
Sixth Circuit: Tracy Morton v. Vanderbilt University
Employment
As some workers were paid for 60 days after they were told to leave, the layoffs did not trigger the Federal WARN act, as a subset of the workers laid off were technically still employed.
http://www.ca6.uscourts.gov/opinions.pdf/16a0002p-06.pdf
As some workers were paid for 60 days after they were told to leave, the layoffs did not trigger the Federal WARN act, as a subset of the workers laid off were technically still employed.
http://www.ca6.uscourts.gov/opinions.pdf/16a0002p-06.pdf
Sixth Circuit: Norbert Kelsey v. Melissa Pope
Habeas: Tribes - Crim
Native American tribes have extraterritorial criminal jurisdiction over their members.
Extraterritorial contacts between tribe members at a tribal function implicate core notions of sovereignty.
Presumption against implicit divestment by Congressional act.
As the conduct was of the nature that would generally lead to prosecution somewhere, no Due Process notice considerations with the introduction of an unforeseen sovereignty.
Tribal court's exercise of jurisdiction was routine common law decisionmaking.
http://www.ca6.uscourts.gov/opinions.pdf/16a0001p-06.pdf
Native American tribes have extraterritorial criminal jurisdiction over their members.
Extraterritorial contacts between tribe members at a tribal function implicate core notions of sovereignty.
Presumption against implicit divestment by Congressional act.
As the conduct was of the nature that would generally lead to prosecution somewhere, no Due Process notice considerations with the introduction of an unforeseen sovereignty.
Tribal court's exercise of jurisdiction was routine common law decisionmaking.
http://www.ca6.uscourts.gov/opinions.pdf/16a0001p-06.pdf
Fifth Circuit: Stephen Miller v. Metrocare Services, et al
Discrimination, S1983 name-clearing
Sufficient nondiscriminatory basis for ending of employment.
Confrontation of witnesses is not required at a S1983 name-clearing proceeding under procedural due process.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10086-CV0.pdf
Sufficient nondiscriminatory basis for ending of employment.
Confrontation of witnesses is not required at a S1983 name-clearing proceeding under procedural due process.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10086-CV0.pdf
Fifth Circuit: USA v. Jesus Ramos-Rodriguez
FRE
Evidence of prior traffic stop in, as it helps to establish deft's knowledge of contraband in vehicle.
No error in the introduction of profile-based evidence that tended to establish mens rea.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50846-CR0.pdf
Evidence of prior traffic stop in, as it helps to establish deft's knowledge of contraband in vehicle.
No error in the introduction of profile-based evidence that tended to establish mens rea.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50846-CR0.pdf
Fifth Circuit: Lillie Wheat v. Florida Prsh Juv Justice Cmsn
Title VII/FMLA
Assignment to janitorial duties is not a per se materially adverse action.
Plaintiff did not establish pay adjustment as materially adverse.
Denial of reassignment not per se materially adverse.
Disparate treatment of others similarly situated raised genuine issue of material fact on the retaliatory dismissal.
Dissent: Janitorial duties materially adverse on this record.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30788-CV0.pdf
Assignment to janitorial duties is not a per se materially adverse action.
Plaintiff did not establish pay adjustment as materially adverse.
Denial of reassignment not per se materially adverse.
Disparate treatment of others similarly situated raised genuine issue of material fact on the retaliatory dismissal.
Dissent: Janitorial duties materially adverse on this record.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30788-CV0.pdf
Third Circuit: USA v. Jason Moreno
FRE, FRCrimP
Admission of written statements of investigating agent read into the record by a witness under the prior consistent statements hearsay exception violated the Confrontation Clause, but the error was harmless.
No plain error in the sentencing bump for 50 victims.
Prosecutor's unauthorized cross during allocution violated the common law right of allocution, and as it was contrary to the purposes of the relevant FRCrimP rule, the error was plain. Sentence vacated.
http://www2.ca3.uscourts.gov/opinarch/141568p.pdf
Admission of written statements of investigating agent read into the record by a witness under the prior consistent statements hearsay exception violated the Confrontation Clause, but the error was harmless.
No plain error in the sentencing bump for 50 victims.
Prosecutor's unauthorized cross during allocution violated the common law right of allocution, and as it was contrary to the purposes of the relevant FRCrimP rule, the error was plain. Sentence vacated.
http://www2.ca3.uscourts.gov/opinarch/141568p.pdf
Third Circuit: Chesapeake Appalachia LLC v. Scout Petroleum
Arbitration - class actions
Neither the terms of the contract nor the incorporation of the arbitration organization's rules constituted a clear and unmistakable consent to allowing the arbitrator to define the scope of a class arbitration.
http://www2.ca3.uscourts.gov/opinarch/151275p.pdf
Neither the terms of the contract nor the incorporation of the arbitration organization's rules constituted a clear and unmistakable consent to allowing the arbitrator to define the scope of a class arbitration.
http://www2.ca3.uscourts.gov/opinarch/151275p.pdf
DC Circuit: Anglers Conservation Network v. Penny Pritzker
Administrative law
Interstate council not subject to statutory or APA suit -- although inaction is "backstopped" by the Agency, the action and inaction of the council isn't actionable under Agency-based rights of action.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E0161B8D8499099885257F3100533D5A/$file/14-5304-1591775.pdf
Interstate council not subject to statutory or APA suit -- although inaction is "backstopped" by the Agency, the action and inaction of the council isn't actionable under Agency-based rights of action.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E0161B8D8499099885257F3100533D5A/$file/14-5304-1591775.pdf
Eleventh Circuit: Rosa and Raymond Parks Institute for Self Development v. Target Corporation
Court properly dismissed right of publicity claim under public interest exception.
http://media.ca11.uscourts.gov/opinions/pub/files/201510880.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201510880.pdf
Eleventh Circuit: USA v. Demarco Doxie
Sentencing
No error in court's declining to group tax counts with fraud counts for purposes of sentencing.
Typo at 9.
http://media.ca11.uscourts.gov/opinions/pub/files/201511161.pdf
No error in court's declining to group tax counts with fraud counts for purposes of sentencing.
Typo at 9.
http://media.ca11.uscourts.gov/opinions/pub/files/201511161.pdf
Tenth Circuit: Savant Homes v. Collins
Copyright - architecture
Summary judgment for deft upheld, as plaintiff did not establish uniqueness of architectural elements.
Not per se error for the court to use "abstraction & filtration" for architecture.
No error in dismissal of trade dress claims.
https://www.ca10.uscourts.gov/opinions/15/15-1115.pdf
Summary judgment for deft upheld, as plaintiff did not establish uniqueness of architectural elements.
Not per se error for the court to use "abstraction & filtration" for architecture.
No error in dismissal of trade dress claims.
https://www.ca10.uscourts.gov/opinions/15/15-1115.pdf
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