In assessing comparators for a claim of workplace discrimination, the plaintiff's demonstrated ability in performing the present job should be taken into account.
Transfer to the Commissary, even absent diminution in rank or pay, was a sufficiently adverse employment action.
http://media.ca1.uscourts.gov/pdf.opinions/16-1597P-01A.pdf
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.
First Circuit: US v. Rivera-Hernandez
Sentencing judge appropriately considered deft's particular situation, given reasoning outside of the sentencing memorandum.
No error in within-guidelines sentence above the level set by plea deal.
First Circuit: Doe v. Trustees of Boston College
State contractual guarantees of good faith and fair dealing apply to a student's relationship with their university; where procedures are published, this duty is displaced by a contractual guarantee of compliance with the stated procedures.
While the school's procedures were generally in accord with the published rule, possibly prejudicial ex parte communications during the tribunal's deliberations present a genuine issue of material fact for trial.
Despite plaintiff's indications of intent to file a lawsuit, an email from an officer of the deft promising an independent investigation did not create a binding contract, as plaintiff never evinced a willingness to strike a deal -- there was no consideration.
Statistics alone can't establish a Title IX claim on the outcome or for deliberate indifference; the specific mechanism of discriminatory action needed to be identified.
Procedural unfairness in student disciplinary decisions sounds in contract, not tort.
http://media.ca1.uscourts.gov/pdf.opinions/16-2290P-01A.pdf
While the school's procedures were generally in accord with the published rule, possibly prejudicial ex parte communications during the tribunal's deliberations present a genuine issue of material fact for trial.
Despite plaintiff's indications of intent to file a lawsuit, an email from an officer of the deft promising an independent investigation did not create a binding contract, as plaintiff never evinced a willingness to strike a deal -- there was no consideration.
Statistics alone can't establish a Title IX claim on the outcome or for deliberate indifference; the specific mechanism of discriminatory action needed to be identified.
Procedural unfairness in student disciplinary decisions sounds in contract, not tort.
http://media.ca1.uscourts.gov/pdf.opinions/16-2290P-01A.pdf
First Circuit: US v. Laureano-Perez
Sentencing judge sufficiently weighed individual concerns, given recitation of deft's age, education, and work history.
Given that the present crime occurred while on supervised release for a drugs offense, no error in drug testing as a release condition.
http://media.ca1.uscourts.gov/pdf.opinions/16-2399P-01A.pdf
Given that the present crime occurred while on supervised release for a drugs offense, no error in drug testing as a release condition.
http://media.ca1.uscourts.gov/pdf.opinions/16-2399P-01A.pdf
First Circuit: US. Robles-Paron
Claim of ineffective assistance and judicial error in sentencing need not be refiled in a collateral proceeding where the government stipulates to the error. Sentence can be vacated and remanded on direct appeal.
Judicial sentencing script sufficiently weighed individual considerations, and did not impermissibly focus on social concerns.
http://media.ca1.uscourts.gov/pdf.opinions/16-2455P-01A.pdf
Judicial sentencing script sufficiently weighed individual considerations, and did not impermissibly focus on social concerns.
http://media.ca1.uscourts.gov/pdf.opinions/16-2455P-01A.pdf
First Circuit: Caraballo-Caraballo v. Administracion de Correccion
When a superseding indictment adds charges arising out the same act, transaction or common scheme, the Sixth Amendment speedy trial clock for the added charges still runs from the initial indictment.
The protections of the Sixth Amendment are generically distinct from Due Process and double jeopardy, and differ from the statutory protections offered under the Speedy Trial Act; the protection therefore arises directly from the Sixth Amendment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1961P-01A.pdf
The protections of the Sixth Amendment are generically distinct from Due Process and double jeopardy, and differ from the statutory protections offered under the Speedy Trial Act; the protection therefore arises directly from the Sixth Amendment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1961P-01A.pdf
Eleventh Circuit: Finest Meridor v. Attorney General
Immigration Judge's finding as to likely future danger was a finding of fact that could only be reviewed for clear error; the agency erred by reversing de novo.
Subsequent statute holding that a certain agency is the only authority to issue a certain visa under that article operates as a context-specific enhancement to an earlier statute authorizing the issuance of the visa by other authorities.
http://media.ca11.uscourts.gov/opinions/pub/files/201514569.pdf
Subsequent statute holding that a certain agency is the only authority to issue a certain visa under that article operates as a context-specific enhancement to an earlier statute authorizing the issuance of the visa by other authorities.
http://media.ca11.uscourts.gov/opinions/pub/files/201514569.pdf
Federal Circuit: PGS Physical v. Iancu
(Reminder: We don't know many things. We especially don't know Patent.)
Agency decision presenting both non-instituted claims and rulings on instituted claims and grounds is sufficiently final for judicial review.
Erroneous non-institution is waiveable, and presents no sua sponte obligation in subsequent judicial review.
(Again, completely guessing here.)
Board decision on motivation to combine prior art was reasonable.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2470.Opinion.6-6-2018.1.pdf
Agency decision presenting both non-instituted claims and rulings on instituted claims and grounds is sufficiently final for judicial review.
Erroneous non-institution is waiveable, and presents no sua sponte obligation in subsequent judicial review.
(Again, completely guessing here.)
Board decision on motivation to combine prior art was reasonable.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2470.Opinion.6-6-2018.1.pdf
Federal Circuit: Martin v. O'Rourke
Although the All Writs Act isn't an independent basis for jurisdiction, Mandamus against unreasonable administrative delay validly runs from the Circuit Courts when necessary to protect their future jurisdiction.
Mandamus against delay by the Dept of Veterans Affairs should be governed not by a finding of the official's refusal to act, but by a common-law balancing test.
Concur: An over five-year appeals process, mostly composed of ministerial tasks and docketing, is excessive. Mandamus is the only viable option.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1747.Opinion.6-5-2018.1.pdf
Mandamus against delay by the Dept of Veterans Affairs should be governed not by a finding of the official's refusal to act, but by a common-law balancing test.
Concur: An over five-year appeals process, mostly composed of ministerial tasks and docketing, is excessive. Mandamus is the only viable option.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1747.Opinion.6-5-2018.1.pdf
Havensight Capital LLC v. Nike Inc.
Appeal of Rule 11 sanctions and dismissal of amended complaint does not not incorporate appeal of post-judgment sanctions orders.
Pending post-judgment motion that can be construed as a challenge to the decision on the merits, when filed before entry of judgment, does not toll the time limit for appeals.
Numerous and voluminous motions justified Rule 11 sanctions.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/15-56607.pdf
Pending post-judgment motion that can be construed as a challenge to the decision on the merits, when filed before entry of judgment, does not toll the time limit for appeals.
Numerous and voluminous motions justified Rule 11 sanctions.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/15-56607.pdf
Ninth Circuit: White v. Square, Inc.
Visiting a website with the intent to use its services and then declining to advance past a user agreement that incorporated an allegedly discriminatory bar on the use of its services constitutes a sufficiently concrete and particularized Article III injury.
Questions certified to California: whether a patron must use a business services to qualify for the statutory antidiscrimination provisions at issue, or if merely presenting themselves is sufficient. Also -- what the internet correlative to this standard might be.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-17137.pdf
Questions certified to California: whether a patron must use a business services to qualify for the statutory antidiscrimination provisions at issue, or if merely presenting themselves is sufficient. Also -- what the internet correlative to this standard might be.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-17137.pdf
Ninth Circuit: Ellis v. Harrison
State court's holding that Habeas petitioner must establish prejudice from his counsel's racial animus by a preponderance was an unreasonable application of federal constitutional law.
To establish prejudice from counsel's racial animus, petitioner must establish either his or her knowledge of the animus at a critical phase of the proceedings, resulting in a communications breakdown, or another adverse effect of the animus.
Concurrence to per curiam: prejudice should be the presumption in strategic decisions once animus is established.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf
To establish prejudice from counsel's racial animus, petitioner must establish either his or her knowledge of the animus at a critical phase of the proceedings, resulting in a communications breakdown, or another adverse effect of the animus.
Concurrence to per curiam: prejudice should be the presumption in strategic decisions once animus is established.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf
Eighth Circuit: Mahn v. Jefferson County
In First Amendment retaliation case, once the plaintiff produces substantive proof from which the finder of fact can infer that the protected conduct was a motivating factor, the full burden of proof to establish a nondiscriminatory motive for the action passes to the deft.
At summary judgment, this nondiscriminatory explanation must be indisputable.
Reinstatement is an equitable remedy permitted against a state official under Ex Parte Young.
Allegations against second official and municipality too speculative to present issue for trial.
http://media.ca8.uscourts.gov/opndir/18/06/161731P.pdf
At summary judgment, this nondiscriminatory explanation must be indisputable.
Reinstatement is an equitable remedy permitted against a state official under Ex Parte Young.
Allegations against second official and municipality too speculative to present issue for trial.
http://media.ca8.uscourts.gov/opndir/18/06/161731P.pdf
Seventh Circuit: Carl Leo Davis v. US
The Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague announced a substantive change in the law that applies to petitioners seeking collateral review of sentences imposed under a parallel provision of the mandatory sentencing guidelines, despite the Supreme Court's subsequent holding that the provision in the guidelines was constitutional, as the gudelines, in the interval, had become merely advisory.
This substantive shift in the law was a sharp reversal from precedent, legitimately causing the petitioners not to raise the issue on direct appeal.
A second substantive change in the law that removed an alternate basis for the sentence of one of the petitioners did not trigger a mandatory limitation period for filing the writ, as it would merely have shifted the ultimate basis for the sentence.
A plea deal carve out excepting any constitutionally impermissible factor incorporates any unconstitutional input present at sentencing.
Prior offenses should be considered categorically when deciding whether the conviction is a valid predicate.
(Important decision. Again, all this is quick work. Don't rely.)
Sixth Circuit: United States v. Oscar Robinson
Above (almost double) guidelines sentence based on factors possibly resulting from addiction and the specific harms posed by the substance possessed and dealt is not substantively unreasonable.
Pre-plea disclosure of criminal history did not unfairly prejudice things.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0107p-06.pdf
Pre-plea disclosure of criminal history did not unfairly prejudice things.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0107p-06.pdf
Fifth Circuit: Certain Undwr at Lloyds London v. Lowen Valley
As the insurer established a plausible theory of harm outside the claim, the insured was required to establish some reasonable basis of apportioning the damage; absent this proof, the insurer has no liability under state law.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10914-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-10914-CV0.pdf
Fifth Circuit: Gorman v. Sharp
As the Fourth Amendment requires a willful violation, a training officer who forgets to swap his gun for a dummy gun and shoots the other fellow in the chest does not violate the Federal Constitution by restricting his freedom of movement.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60515-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-60515-CV0.pdf
Fifth Circuit: In re Rosendo Rodruiguez
Rule 11 show-cause ruling on untimely capital Habeas filing.
Petitioner should have rebutted affidavit timely offered by the state. No sanctions.
http://www.ca5.uscourts.gov/opinions/pub/18/18-10337-CV0.pdf
Petitioner should have rebutted affidavit timely offered by the state. No sanctions.
http://www.ca5.uscourts.gov/opinions/pub/18/18-10337-CV0.pdf
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