FRCrimP
Counsel's assurance of no custodial sentence was not sufficient basis to challenge voluntary nature of guilty plea.
No abuse of discretion in denial of competency hearing where deft's physician suggests that deft is exaggerating the symptoms of early dementia.
Insufficient coverage of required points during plea colloquy was harmless error.
USA v. Leo Stoller
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.
Seventh Circuit: USA v. Jonathon Sainz
Sentencing
As restitution amount was substantively reasonable, it was not an abuse of discretion to omit certain elements of guidance in precedent.
Where the reason for the release conditions is plain, little or no explanation is needed. Modification to some terms to allow purchase of hamburgers, Internet access, etc.
USA v. Jonathon Sainz
Seventh Circuit: Panther Brands, LLC v. Indy Racing League, LLC
FRCP
The fact that National Guard administrative regulations are implicated is not a basis for federal jurisdiction.
As the delegate of the Guard exercised no independent rulemaking authority, no removal under Federal Officer.
Amendment of claim to remove US as party established that removal under federal scope of employment statute would be inappropriate.
Panther Brands, LLC v. Indy Racing League, LLC
The fact that National Guard administrative regulations are implicated is not a basis for federal jurisdiction.
As the delegate of the Guard exercised no independent rulemaking authority, no removal under Federal Officer.
Amendment of claim to remove US as party established that removal under federal scope of employment statute would be inappropriate.
Panther Brands, LLC v. Indy Racing League, LLC
Seventh Circuit: Kenneth Ogurek v. Jeffrey Gabor
Prisons
Claim of retaliation after letter to warden was a violation of First Amendment right to petition for redress of grievances.
Claim of innocence was sufficient showing to require production of videotape. Summary judgment in favor of the party who had earlier refused to produce the tape was error.
Kenneth Ogurek v. Jeffrey Gabor
Claim of retaliation after letter to warden was a violation of First Amendment right to petition for redress of grievances.
Claim of innocence was sufficient showing to require production of videotape. Summary judgment in favor of the party who had earlier refused to produce the tape was error.
Kenneth Ogurek v. Jeffrey Gabor
Seventh Circuit: James Baptist v. Ford Motor Company
Employment, FRCP
Genuine issue of material fact exists in state retaliatory-discharge claim where there is doubt as to the reason for the end of employment,
James Baptist v. Ford Motor Company
Genuine issue of material fact exists in state retaliatory-discharge claim where there is doubt as to the reason for the end of employment,
James Baptist v. Ford Motor Company
Seventh Circuit: USA v. Dante Graf
FRCrimP
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Fifth Circuit: State of Texas v. EEOC, et al
Standing, Discrimination, Administrative
State has Article III standing to challenge EEOC employment guidance, as it would have to either change its hiring policies or incur costs.
Since the agency, although it has no enforcement authority, can make policy changes that cause injuries sufficient for Article III harms, lack of enforcement power is not a per se bar to the action being sufficiently final under the APA.
Safe harbors and definitions for key terms speak to finality.
An agency can alter rights without issuing guidance that courts are legally bound to defer to.
Dissent. Nope, and not ripe, either.
State of Texas v. EEOC, et al
State has Article III standing to challenge EEOC employment guidance, as it would have to either change its hiring policies or incur costs.
Since the agency, although it has no enforcement authority, can make policy changes that cause injuries sufficient for Article III harms, lack of enforcement power is not a per se bar to the action being sufficiently final under the APA.
Safe harbors and definitions for key terms speak to finality.
An agency can alter rights without issuing guidance that courts are legally bound to defer to.
Dissent. Nope, and not ripe, either.
State of Texas v. EEOC, et al
Third Circuit: In Re: Nickleodeon Consumer Pr
Standing, ECPA, Preemption, Torts
Disclosure of online user data sufficiently particular & concrete for Article III standing.
One-party consent under the wiretap act & corresponding state statute has no implicit age restriction.
PCs are not protected computing facilities under SCA
.
State statute requires something beyond access to data - must establish use.
Search engine not covered by video privacy statute; that statute requires something more than an identifying number, since an observer must be able to associate a person with specific content. This holding cannot be reduced to a single sentence.
As claim derives from the expectation of privacy on the website, state intrusion on privacy tort not preempted by federal data statute.
Third party cookies on site don't present a cause of action under the tort, but standard tracking might, if duplicitous.
In Re: Nickleodeon Consumer Pr
First Circuit: Universal Truck & Equipment Co v. Caterpillar, Inc.
FRCP
Where a plaintiff fraudulently joins a deft to defeat diversity, the clock for deft to remove over the fraudulent joinder runs from first service. Here though, the plaintiff waived challenge to the lack of timely removal by not contesting the untimeliness of the theory of removal while contesting the removal itself. The post-deadline removal was in the jurisdiction of the court. Law of the case holding that the removal was ultimately timely prevails.
Summary approval of summary judgment.
Universal Truck & Equipment Co v. Caterpillar, Inc.
Where a plaintiff fraudulently joins a deft to defeat diversity, the clock for deft to remove over the fraudulent joinder runs from first service. Here though, the plaintiff waived challenge to the lack of timely removal by not contesting the untimeliness of the theory of removal while contesting the removal itself. The post-deadline removal was in the jurisdiction of the court. Law of the case holding that the removal was ultimately timely prevails.
Summary approval of summary judgment.
Universal Truck & Equipment Co v. Caterpillar, Inc.
First Circuit: Velez-Ramirez v. Commonwealth of Puerto Rico
ADA
Denial of reasonable accommodation is neither an actual nor a constructive discharge for purposes of the Act.
Automatically generated notification via company intranet sufficed for notice, despite actual notice that employee was not in the office.
Velez-Ramirez v. Commonwealth of Puerto Rico
Denial of reasonable accommodation is neither an actual nor a constructive discharge for purposes of the Act.
Automatically generated notification via company intranet sufficed for notice, despite actual notice that employee was not in the office.
Velez-Ramirez v. Commonwealth of Puerto Rico
First Circuit: US v. Hunter
Sentencing
No error in denying sentencing adjustment for acceptance of responsibility where a deft who later pleaded guilty took affirmative steps to cover up the crime and later made no showing to the contrary.
In assessing criminal history for purposes of sentencing, offenses without an intervening arrest are to be counted together only if imposed on the same day or contained in the same charging instrument.
Within guidelines sentence not substantively unreasonable.
US v. Hunter
Federal Circuit: BASCOM GLOBAL INTERNET v. AT&T MOBILITY LLC
Patent
(Which, we say again, we really don't know all that well. Rely on nothing on this website.)
Although each element of the process may be individually untenable, an ordered combination of claim limitations, considered holistically, might state a claim to be considered a single practical, particular application of the idea.
C in J: Bifurcation of eligibility/patentability is problematic.
BASCOM GLOBAL INTERNET v. AT&T MOBILITY LLC
Federal Circuit: OAKVILLE HILLS CELLAR, INC v. GEORGALLIS HOLDINGS, LLC
Trademark
Similarly spelled unfamiliar marks are sufficiently different.
OAKVILLE HILLS CELLAR, INC v. GEORGALLIS HOLDINGS, LLC
Eighth Circuit: United States v. Adrian Lomas
Crim, FRE, Sentencing
Admission of evidence that deft threw away a gun before the robbery not an abuse of discretion, as it established a knowledge of firearms.
Police evidence that they were in the area because of shots fired at a school was insufficiently prejudicial to justify a new trial.
Other hearsay, vouching challenges.
Sentencing.
United States v. Adrian Lomas
Eighth Circuit: Madonna Massey-Diez v. U of IA Community Medical etc
FMLA
Plaintiff's stated willingness to find ways to work while incapacitated meant that repeated tasks requested by employer during leave time were not contrary to the statute.
No discrimination in nonrenewal of contract, since comparator was in a rural area with different methodologies, and there was insufficient direct proof of discrimination.
Madonna Massey-Diez v. U of IA Community Medical etc
Eighth Circuit: Paul Ngugi v. Loretta E. Lynch
Immigration
Denial of withholding of removal under CAT upheld, as resistence to an armed gang is not a recognizabel social group; apparently contrary precedent since decision merely meant that the group didn't have to be oculary visible.
Paul Ngugi v. Loretta E. Lynch
Eighth Circuit: The Finley Hospital v. NLRB
Labor
Provision in CBA requiring a 3% raise on the anniversary of employment was not a bargained-for term that becomes part of the status quo after the end of the agreement; since each worker only received one raise, it could be considered a one-time benefit.
Dissent: One-time nature is an affirmative defense that should be considered when deciding if the union waived continuance of the term, and here, the union didn't waive the continuance of the term.
The Finley Hospital v. NLRB
Provision in CBA requiring a 3% raise on the anniversary of employment was not a bargained-for term that becomes part of the status quo after the end of the agreement; since each worker only received one raise, it could be considered a one-time benefit.
Dissent: One-time nature is an affirmative defense that should be considered when deciding if the union waived continuance of the term, and here, the union didn't waive the continuance of the term.
The Finley Hospital v. NLRB
Eighth Circuit: United States v. Alexander Faulkner
Fourth Amendment, ACCA, Confrontation Clause
Affidavit statement that tipster was reliable sufficed for credibility.
Placement of GPS on car in county outside the scope of the search warrant was a violation of state law, but not one that rises to the level of suppression.
Reputation of deft as drug dealer sufficed for warrant for home.
No confrontation clause in inability to question tipster, as there was no contact with case after the affidavit.
Possession with intent and conspiracy with intent correctly counted as two predicates under ACCA.
United States v. Alexander Faulkner
Eighth Circuit: United States v. Garron Gonzalez
FRE
Where the deft agrees to the admission of a recording at trial with the proviso that it be heard in full if requested by the jury during deliberations, no abuse of discretion in allowing the jury to hear it then, even if the tape had not been played in trial.
Substantial evidence.
United States v. Garron Gonzalez
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