Discrimination
As a similarly situated comparator was also terminated and the variance in the comparator's severance can be explained by differences in their situations, no Title VII racial discrimination claim.
No ADEA retaliation, as termination occurred 21 months after initial complaint, with a lateral transfer interposed.
State statute limiting reduction in pay does not place a restriction on at-will nature of employment sufficient for a property interest in continued employment. Conceding at-will employment relative to one supervisor ends the property interest generally.
Statute allowing appointment to state office by elected official does not prevent another arm of the government from terminating the employment.
No abuse of discretion in district court's refusal to exercise ancillary jurisdiction over whistleblower claims.
Ronald Heggemeier v. Caldwell County, Texas, et al
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: Omar Frias-Camilo v. Attorney General United States
Immigration, FRCrimP, Statutory Construction
As the Immigration statute regards convictions as having an adjudication and a punishment, and circuit precedent regards the linking "and" as conjunctive, the FRCrimP standard of conviction cannot be used to interpret the Act. Rather, state actions which incorporate either finding of guilt or punishment can qualify.
Omar Frias-Camilo v. Attorney General United States
Third Circuit: Aguedita Ordonez Tevalan v. Attorney General United States
Immigration
Where a petitioner has filed an appeal with the court, the court is not divested of jurisdiction by the agency's granting of a motion to repoen the matter, particularly where the reopening of the case is for ministerial reissuing of orders and decisions.
Where there is objective evidence of inconsistent statements in the record, there is sufficient evidence for an agency's adverse credibility decision.
Insufficient grounds for protection under CAT.
Aguedita Ordonez Tevalan v. Attorney General United States
Where a petitioner has filed an appeal with the court, the court is not divested of jurisdiction by the agency's granting of a motion to repoen the matter, particularly where the reopening of the case is for ministerial reissuing of orders and decisions.
Where there is objective evidence of inconsistent statements in the record, there is sufficient evidence for an agency's adverse credibility decision.
Insufficient grounds for protection under CAT.
Aguedita Ordonez Tevalan v. Attorney General United States
Third Circuit: Jose Bedolla Avila v. Attorney General United States
Sentencing, Immigration
As the state statute proscribing possession with intent to deliver is analogous to the similar federal statute which has no minimum possession, under modified categorical analysis, the state conviction here is an aggravated felony for sentencing purposes.
Simultaneous removal proceedings by DHS and INS do not offend regulations or Due Process, as there is no direct proscription in the regulations and there was no showing that the simultaneity of the proceedings harmed the petitioner's attempt to present his case.
Jose Bedolla Avila v. Attorney General United States
Second Circuit: Leeward Construction Co. v. American University of Antigua
Arbitration
Where arbitrator commits in initial proceedings to issue a reasoned award, a reasoned award is required.
While an arbitrator's reasoned award need not delve into every argument raised or provide a line-by-line justification for the award, it must set forth relevant facts and factual findings.
Arguing for the original profit margins on the deal is at least a barely colorable justification for the award of same based on bad faith, which is all that is required.
Leeward Construction Co. v. American University of Antigua
Where arbitrator commits in initial proceedings to issue a reasoned award, a reasoned award is required.
While an arbitrator's reasoned award need not delve into every argument raised or provide a line-by-line justification for the award, it must set forth relevant facts and factual findings.
Arguing for the original profit margins on the deal is at least a barely colorable justification for the award of same based on bad faith, which is all that is required.
Leeward Construction Co. v. American University of Antigua
Second Circuit: Smith v. Wenderlich
Double Jeopardy, Sentencing, Habeas
Where a prison term is increased due to offenses committed in prison, the completion of the portion attributable to the initial sentence does not finalize the sentence for purposes of double jeopardy, and a subsequent resentencing to incorporate supervised release is therefore neither contrary to nor an unreasonable application of federal constitutional law.
Smith v. Wenderlich
Federal Circuit: DE SANTIS v. MSPB
Administrative, Employment
Where statute restores a class of appeals according to the law before the class of appeals was revoked, in determining eligibility for the appeal, courts should use the present scheme of employment, as modified by regulations, in combination with the law of the earlier period. A position that had the right of appeal before the change does not therefore have the right of appeal after the change, as it might have been modified by regulations.
DE SANTIS v. MSPB
Where statute restores a class of appeals according to the law before the class of appeals was revoked, in determining eligibility for the appeal, courts should use the present scheme of employment, as modified by regulations, in combination with the law of the earlier period. A position that had the right of appeal before the change does not therefore have the right of appeal after the change, as it might have been modified by regulations.
DE SANTIS v. MSPB
Federal Circuit: ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP
Patent, Dissent from denial of en banc
(Reminder: We don't know many things, but we especially don't know Patent. Entertainment purposes only, as always.)
Using the merits panel to screen patent challenges is contrary to statute, and risks prejudgement.
ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP [ORDER RE EN BANC PETITION]]
(Reminder: We don't know many things, but we especially don't know Patent. Entertainment purposes only, as always.)
Using the merits panel to screen patent challenges is contrary to statute, and risks prejudgement.
ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP [ORDER RE EN BANC PETITION]]
Tenth Circuit: Cropper v. CIR
Tax, Administraive
Although an irregularity in the postal forms prevented a presumption of receipt upon mailing, an agency appeal holding that the totality of the evidence indicated mailing was not an abuse of discretion, and since the statute imposes an affirmative duty on the recipient to challenge the mailing, the loss of the presumption of receipt does not prevent the levy.
Cropper v. CIR
Although an irregularity in the postal forms prevented a presumption of receipt upon mailing, an agency appeal holding that the totality of the evidence indicated mailing was not an abuse of discretion, and since the statute imposes an affirmative duty on the recipient to challenge the mailing, the loss of the presumption of receipt does not prevent the levy.
Cropper v. CIR
Ninth Circuit: SELSO ORONA V. USA
Statute of Limitations, Habeas, AEDPA
The statutory one-year filing deadline for second or successive Habeas applications based on claims made retroactive to cases on collateral review is tolled by filing an application in the court of appeals to proceed with the writ, so long as the application states the claim at issue.
SELSO ORONA V. USA
Ninth Circuit: USA V. JORGE CISNEROS
ACCA residual clause
As the state Burglary statute encompasses structures that are not included in the generic federal definition of burglary, sentencing enhancements under the federal statute cannot be applied.
[cf. S. Ct. U.S. this AM.]
USA V. JORGE CISNEROS
Ninth Circuit: CARLOS BAQUERIZO V. GARDEN GROVE UNIFIED SCH DIST
IDEA
As the procedural violations of the act were caused in part by the programs retained by the plaintiff and do not rise to the level that would deny a free appropriate public education, no reimbursement required under the act.
CARLOS BAQUERIZO V. GARDEN GROVE UNIFIED SCH DIST
Seventh Circuit: Rashaad Imani v. William Pollard
Sixth Amendment, Habeas, AEDPA
In colloquy with a deft who has requested to proceed without counsel, the duty of inquiry rests with the judge, and cannot be converted to an affirmative burden on the deft to prove capacity.
Where an articulate deft is without illness or impairment,deft is likely outside of the narrow range of cases precluded from self-representation.
Denial of request made weeks before trial on scheduling grounds is constitutional error.
Rashaad Imani v. William Pollard
Seventh Circuit: Carlos G. Rocha v. J. Gordon Rudd, Jr.
FRCP, Legal malpractice, Fraud
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Seventh Circuit: Nancy Thomas v. Carolyn Colvin
Administrative, SSA
Although the opinon of a specialist is preferred, a diagnosis in a specialist area is not per se inadmissible.
Uncritical acceptance of reviewing physicians' opinions on overall impairment where there is evidence to the contrary from the initial diagnosis does not suffice in review for substantial evidence.
Nancy Thomas v. Carolyn Colvin
Seventh Circuit: Women's Health Link, Incorporated v. Fort Wayne Public Transportation
Free Speech, Posner.
Where the government creates a facility for communicative activity, it is inappropriate to look beyond the four corners of the speech itself in determining whether the speech can be barred.
Bus ads -- with image and Hamlet quote.
Women's Health Link, Incorporated v. Fort Wayne Public Transportation
Where the government creates a facility for communicative activity, it is inappropriate to look beyond the four corners of the speech itself in determining whether the speech can be barred.
Bus ads -- with image and Hamlet quote.
Women's Health Link, Incorporated v. Fort Wayne Public Transportation
Fifth Circuit: Trevor Charles, et al v. Thomas Atkinson, et al
FRCP
Where a named deft does not make an appearance in a civil suit, an unreturned order of service -- absent finding of service or nonservice by the court -- bars direct appellate review under the statute, given the possibility of service.
Trevor Charles, et al v. Thomas Atkinson, et al
Fifth Circuit: USA v. Kevin Brown
Sentencing
Although the above-guidelines imposition of supervised release was incorrect and substantially violated the deft's rights, the deft's history and acceptance of the sentence at trial make the sentence incorrect but fair.
USA v. Kevin Brown
Second Circuit: Terry v. Inc. Vill. of Patchogue
FRCP
Pro se litigants must at least set forth identifiable arguments in pleadings.
Dismissal in state court for not stating a claim due to prolix and disjointed filing imposes a res judicata effect on the claim in a subsequent federal action.
No error in refusing leave to amend where the amendments were facially conclusory.
Terry v. Inc. Vill. of Patchogue
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