In an ADA action, occasional delays in a good-faith negotiation are not a basis for equitable estoppel against deft's argument that the agency filing required by the statute wasn't timely.
http://media.ca8.uscourts.gov/opndir/18/06/171737P.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.
Eighth Circuit: Henry Miranda v. Jefferson Sessions, III
For purposes of immigration removal, the question of whether a particular group is a cognizable social group under the statute is a question of law.
Former taxi drivers who witnessed a murder and were subsequently threatened by a gang do not constitute such a group.
http://media.ca8.uscourts.gov/opndir/18/06/171430P.pdf
Former taxi drivers who witnessed a murder and were subsequently threatened by a gang do not constitute such a group.
http://media.ca8.uscourts.gov/opndir/18/06/171430P.pdf
Eighth Circuit: James Dean v. Burdette Searcey
Holding of prior panel is binding circuit precedent, in addition to law of the case.
Where the principal agent in the theory of municipal liability is exonerated at trial, municipality may still be liable under the theory that the principal actor was exonerated in his functional role, but held to be culpable in his managerial and policymaking role.
Sufficient evidence to support earlier interlocutory holdings on qualified immunity.
Statements and visual aids in opening and closing that referenced innocence of plaintiffs were not unduly prejudicial.
No error in reckless investigation jury instruction that referenced reckless gathering of unreliable evidence, as it does not suggest the lesser threshold of negligence.
"Pled."
http://media.ca8.uscourts.gov/opndir/18/06/164059P.pdf
Where the principal agent in the theory of municipal liability is exonerated at trial, municipality may still be liable under the theory that the principal actor was exonerated in his functional role, but held to be culpable in his managerial and policymaking role.
Sufficient evidence to support earlier interlocutory holdings on qualified immunity.
Statements and visual aids in opening and closing that referenced innocence of plaintiffs were not unduly prejudicial.
No error in reckless investigation jury instruction that referenced reckless gathering of unreliable evidence, as it does not suggest the lesser threshold of negligence.
"Pled."
http://media.ca8.uscourts.gov/opndir/18/06/164059P.pdf
Seventh Circuit: Village of Barrington, IL v. STB
Dicta: Appeal of Board's denial of motion to reconsider as final agency action does not necessarily incorporate earlier decisions, especially when the earlier decisions are not apart of the appellate record.
Appeal of material error which dates to initial board action cannot be appealed by challenging subsequent denials to reconsider.
New evidence raised at motions to reconsider was either available to parties earlier or raised in earlier proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-11/C:17-3586:J:Flaum:aut:T:fnOp:N:2168607:S:0
Appeal of material error which dates to initial board action cannot be appealed by challenging subsequent denials to reconsider.
New evidence raised at motions to reconsider was either available to parties earlier or raised in earlier proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-11/C:17-3586:J:Flaum:aut:T:fnOp:N:2168607:S:0
Sixth Circuit: Amir Shabo v. Jefferson B. Sessions, III
Since agency removal order factual finding that there was an insufficient likelihood of torture after deportation presents neither an issue of law nor one of constitutional rights, the court does not have jurisdiction over the appeal to the agency's parallel holding that the conditions in the other country hadn't changed.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0111p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0111p-06.pdf
Sixth Circuit: U.S. ex rel. Marjorie Prather v. Brookdale Senior Living Cmty., et al. - Middle District of Tennessee at Nashville
In a False Claims Act suit, a time factor is material where the governing statute references a regulation that, in the process of defining the list of terms within the referenced regulation, subsequently incorporates the timing factor.
Past practice is not dispositive at the motion-to-dismiss stage where there is no showing that the government was aware of the factor.
Training and instruction publications can help to establish that a certain factor goes to the essence of the bargain.
Sufficient proof of scienter for trial where deft instructed cursory review, was advised of requirements, and implicitly referenced the violation in internal emails.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0110p-06.pdf
Past practice is not dispositive at the motion-to-dismiss stage where there is no showing that the government was aware of the factor.
Training and instruction publications can help to establish that a certain factor goes to the essence of the bargain.
Sufficient proof of scienter for trial where deft instructed cursory review, was advised of requirements, and implicitly referenced the violation in internal emails.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0110p-06.pdf
Fifth Circuit: Kimberly Huckaba v. Ref-Chem, L.P.
Under state contract law which looks to the intent of the parties, explicit statement in the arbitration agreement that it was to be signed prior to being given effect or modified meant that omission of the drafters signature meant that there was no contract.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50341-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50341-CV0.pdf
Fourth Circuit:Sade Garnett v. Remedi SeniorCare of Virginia
Employer not liable for workplace defamation since it wasn't in the employer's interests, wasn't condoned by the employer, and it was outside the scope of the tortfeasor's employment; there are literally millions of workplace interactions.
http://www.ca4.uscourts.gov/opinions/171890.P.pdf
http://www.ca4.uscourts.gov/opinions/171890.P.pdf
Eleventh Circuit: Carmina R. Comparelli, et al v. Republica Bolivariana De Venezuela, et al
Claim captioned as an ATS claim but arising under FISA is properly construed as a FISA claim.
As FISA expropriation suits require factual correctness to state a claim, courts can pierce the pleadings.
Where a state distinguishes between nationals and foreigners among its permanent residents, the seizure does not implicate the domestic takings exception to FISA expropriation claims; in the case of dual nationals, the inquiry into residence is fact-specific.
An effects-based nexus under the commercial exception to FISA counters the presumption against extraterritoriality.
http://media.ca11.uscourts.gov/opinions/pub/files/201616748.pdf
As FISA expropriation suits require factual correctness to state a claim, courts can pierce the pleadings.
Where a state distinguishes between nationals and foreigners among its permanent residents, the seizure does not implicate the domestic takings exception to FISA expropriation claims; in the case of dual nationals, the inquiry into residence is fact-specific.
An effects-based nexus under the commercial exception to FISA counters the presumption against extraterritoriality.
http://media.ca11.uscourts.gov/opinions/pub/files/201616748.pdf
Eleventh Circuit: Jyll Brink v. Raymond James & Associates, Inc.
Company's undisclosed profit margin within the transaction fee for a covered security was not a material misrepresentation bearing on the decision to purchase the security; a class action suit for redress is therefore not barred from the state courts by federal securities law.
http://media.ca11.uscourts.gov/opinions/pub/files/201614144.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201614144.pdf
Eleventh Circuit: USA v. Delroy Anthony McLean
For purposes of the statute protecting judges from impedance, interference, or intimidation, an immigration judge is a judicial officer who exercises the authority of the Attorney General, and therefore a judicial officer of the United States.
http://media.ca11.uscourts.gov/opinions/pub/files/201710741.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201710741.pdf
DC Circuit: Rachel Fraenkel v. Islamic Republic of Iran
District court's reduction of damages in a FISA suit seeking solatium (consolation) damages against killers of family member because the victims were targeted on the basis of foreign citizenship was an abuse of discretion. The appropriate amount, though, is still a matter of judicial discretion.
Similarly, error to reduce damages for assumption of risk, given that the purpose of the statute is to reduce terrorism, and the victims' conduct was reasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C60AD39892C8E38A852582A600521EC3/$file/17-7100-1735019.pdf
Similarly, error to reduce damages for assumption of risk, given that the purpose of the statute is to reduce terrorism, and the victims' conduct was reasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C60AD39892C8E38A852582A600521EC3/$file/17-7100-1735019.pdf
DC Circuit: Washington Alliance of Technology Workers v. DHS
Trade group has competitor standing to challenge agency decision on student visas.
A claim that the agency exceeded statutory authority states a claim even absent factual allegations.
Under local rules, a party can rest on its claim in response to a motion to dismiss if the initial filing stated a plausible claim for relief.
Certain administrative challenges are not redressible.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C1913070B98EC073852582A600521EA7/$file/17-5110-1735010.pdf
A claim that the agency exceeded statutory authority states a claim even absent factual allegations.
Under local rules, a party can rest on its claim in response to a motion to dismiss if the initial filing stated a plausible claim for relief.
Certain administrative challenges are not redressible.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C1913070B98EC073852582A600521EA7/$file/17-5110-1735010.pdf
DC Circuit: Mercy Hospital, Inc. v. Alex M. Azar II
Statutory bar on judicial review of prospective payment rates bars review of "step-two" rates and any formulae inextricably intertwined.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0A1B7A5BDA2046B4852582A600521E8C/$file/16-5267-1734989.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/0A1B7A5BDA2046B4852582A600521E8C/$file/16-5267-1734989.pdf
National Environmental Development Association's Clean Air Project v. EPA
As the statute unambiguously refers to regional inconsistencies from the delegation of the Administrator's powers, and moreover, implementing judicially-created inconsistencies is a reasonable resolution of the (un)ambiguity, no error in agency's inconsistent remedies implemented in response to bifurcated judicial review.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C030B5F7DB87A8DB852582A600521E70/$file/16-1344-1734993.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C030B5F7DB87A8DB852582A600521E70/$file/16-1344-1734993.pdf
DC Circuit: ESI Energy, LLC v. FERC
Agency did not err when, on remand, it discounted extrinsic evidence that the court had held to be ambiguous.
Relevant date for assigning cost responsibility for a power network upgrade might reasonably be the date of the execution of the agreement to join the network.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C8F18CF446B7250D852582A600522CF6/$file/16-1261.pdf
Relevant date for assigning cost responsibility for a power network upgrade might reasonably be the date of the execution of the agreement to join the network.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C8F18CF446B7250D852582A600522CF6/$file/16-1261.pdf
DC Circuit: Colorado Fire Sprinkler, Inc. v. NLRB
Board's determination that a series of CBA recitations of exclusive representation was sufficient to establish sufficient employee support for the union when initially certified pre-hire was insufficiently reasoned and an abuse of discretion.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C8F18CF446B7250D852582A600522CF6/$file/16-1261.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/C8F18CF446B7250D852582A600522CF6/$file/16-1261.pdf
DC Circuit: US v. Benjamin Grey
Absent a limiting instruction, possibly prejudicial testimony as to previous civil judgment(s?) was inadmissible hearsay and plain error -- but insufficient for reversal.
Prior bad acts were sufficiently contemporaneous to be probative of intent as to the charged crimes.
No need to remand to develop ineffective assistance claim, given evidence of guilt.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7D8985C55A9B312B852582A60052550E/$file/14-3003.pdf
Prior bad acts were sufficiently contemporaneous to be probative of intent as to the charged crimes.
No need to remand to develop ineffective assistance claim, given evidence of guilt.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7D8985C55A9B312B852582A60052550E/$file/14-3003.pdf
Tenth Circuit: United States v. Melgar-Cabrera
Federal statute providing for incarceration for murder with a firearm is a separate offense, not a sentencing enhancement, given post-Apprendi jurisprudence.
Statute requiring the element of physical force in the commission of a felony implies the requirement of violent force.
Offensive touching can be sufficient force for Hobbs Act robbery.
Indirect force can be a use of physical force under the statute.
https://www.ca10.uscourts.gov/opinions/16/16-2018.pdf
Statute requiring the element of physical force in the commission of a felony implies the requirement of violent force.
Offensive touching can be sufficient force for Hobbs Act robbery.
Indirect force can be a use of physical force under the statute.
https://www.ca10.uscourts.gov/opinions/16/16-2018.pdf
Tenth Circuit: Utah Republican Party v. Cox
Denial of en banc.
Concur from CJ: Supreme Court should review. Judicial regulation of political primaries imperils associational rights and substantive ends.
https://www.ca10.uscourts.gov/opinions/16/16-4091.pdf
Concur from CJ: Supreme Court should review. Judicial regulation of political primaries imperils associational rights and substantive ends.
https://www.ca10.uscourts.gov/opinions/16/16-4091.pdf
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