Fourth Circuit: Ohio Valley Environmental v. Scott Pruitt

Plaintiffs have sufficient Article III standing to challenge EPA action affecting a state's rivers when they can establish concrete and particular harms arising from some subset of the rivers.

State's lack of filing is insufficiently clear and ambiguous to trigger the constructive submission of a refusal to file -- the question of agency obligation is therefore one for trial.

http://www.ca4.uscourts.gov/opinions/171430.P.pdf

Fourth Circuit: Alan Metzgar v. KBR, Inc.

Suit against military contractor for trash burn pits and water provision is barred under the political question doctrine, given that the military's control over the processes at issue was plenary and actual.

As the suit is dismissed as nonjusticiable, the pendent FTCA suit is moot -- statutory exemption not reached.

http://www.ca4.uscourts.gov/opinions/171960.P.pdf

Fourth Circuit: US v. Edward Kehoe

One anonymous tip and one named tip sufficed for the search of the deft, given that the location was known to be the type of bar where people might drink with concealed weapons.

Court's instruction to counsel to consider why a caucasian person might have brought a gun to a predominantly african-american bar was egregious, but it didn't taint the proceeding, as the tips could still be weighed, and argument wasn't impeded.

http://www.ca4.uscourts.gov/opinions/174536.P.pdf

Third Circuit: Gerald Carroll v. E One Inc

Award of fees to deft upon dismissal with prejudice following plaintiffs' mistaken motion to unilaterally dismiss a suit that had advanced past discovery and answer was not an abuse of discretion; plaintiff's lack of investigation, combined with their practices in other districts presented a sufficiently extraordinary circumstance to justify the grant.

http://www2.ca3.uscourts.gov/opinarch/172183p.pdf

Second Circuit: Simon v. City of New York

Denial of qualified immunity for custodial arrest and interrogation over the course of two days on the basis of a warrant issued to produce the arrestee in court at a certain time for a hearing to determine if she should be detained as a material witness.  Although the procedures violated a state statute, the variance from the terms on the face of the warrant created a Fourth Amendment violation.  Sufficiently clear to be contrary to law despite lack of on-point precedent in the circuit.

Arrestee's return to the police station on the next day was not voluntary, given instruction to do so and reminder that police had an arrest warrant for her.

http://www.ca2.uscourts.gov/decisions/isysquery/c248c3bb-2a44-49a0-968d-6c71d649d45e/1/doc/17-1281_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c248c3bb-2a44-49a0-968d-6c71d649d45e/1/hilite/

First Circuit: US v. Cabrera-Rivera

Given the previous discussion among counsel during which they looked up the relevant statutes on their cellphones, plea bargain was sufficiently knowing and voluntary, despite deft's contention that he understood the term of the sentence to include any periods of supervised release.

Although the rest of the conditions of supervised release don't rise to the level of miscarriage of justice that would justify looking past the appeals waiver in the plea bargain, the unexplained provision barring unapproved contact with deft's children was plain error.

Concurrence: When supervised release conditions don't match the plea deal, contract principles come into play.

Dissent: Conditions weren't a miscarriage of justice, all considered.  Seemingly excessive conditions give probation officers useful power.

http://media.ca1.uscourts.gov/pdf.opinions/15-1337P-01A.pdf

First Circuit: In re: App of George W Schlich

The prudential factors in deciding whether to order discovery for use in a foreign proceeding do not imply that either party has an obligation to establish or rebut any factor; the court did not abuse its discretion when deciding that the marginal relevance of the information sought, while sufficient to establish a prima facie claim under the statute, meant that the foreign court would likely not be receptive to the information.

Circuit split flagged.

http://media.ca1.uscourts.gov/pdf.opinions/17-1377P-01A.pdf

DC Circuit: Cellco Partnership v. NLRB

When holding that employees dismissal for untruthfulness was pretextual, ALJ impermissibly intruded into business judgment by determining that other violations of company policy that were generally unpunished were more severe.

Discussions involving Section 7 matters are not categorically shielded from such rules.

https://www.cadc.uscourts.gov/internet/opinions.nsf/8BA86CC8FAF54C77852582B10051858A/$file/17-1158-1736658.pdf

DC Circuit: FTC v. Boehringer Ingelheim Pharmace

Communication of business facts between employees and in-house counsel are subject to privilege where a significant provision of the communication is to obtain or provide legal advice; underlying data, however, is not protected with the communications.

https://www.cadc.uscourts.gov/internet/opinions.nsf/A81BAEEA3D756416852582B100518ADF/$file/16-5356.pdf

DC Circuit: Electronic Privacy Information Center v. FAA

Drone organization doesn't have associational standing to challenge rulemaking, as the commercial concerns are largely outside the scope of the proposed rule, and the personal privacy concerns are speculative.

Also, no organizational standing, as bare assertion of not being able to inform its members is an insufficient showing.

https://www.cadc.uscourts.gov/internet/opinions.nsf/DA5DA28557555A8C852582B100518571/$file/16-1297-1736670.pdf

DC Circuit: Western Organization v. Ryan Zinke

No legal duty to conduct a further environmental review of the federal government's coal regulation scheme, as the adoption of the plan in 1985 was the major federal action that triggered the obligation of environmental review.

https://www.cadc.uscourts.gov/internet/opinions.nsf/FCE27F0BA64C40A1852582B100518555/$file/15-5294-1736645.pdf

Federal Circuit: Sirona Dental Systems v. Institut Straumann

Patent something or other.  (Running a bit late today.)

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1341.Opinion.6-19-2018.pdf

Tenth Circuit: Rodriguez v. FDIC

As now-bankrupt bank's contractual agreement with its now-bankrupt affiliated group is incredibly complex and ambiguous, the provision of the agreement mandating that any ambiguities be construed in favor of the bank means that there was only an agency relationship between the bank and the organization and the latter has no equitable title to the tax refund due the affiliated organization; the refund now belongs to the bank's FDIC receiver.

https://www.ca10.uscourts.gov/opinions/17/17-1281.pdf

Tenth Circuit: Odom v. Penske Truck Leasing Co.

Remand to District Court after certified question to examine whether affiliated company had a persona distinct from the employer for purposes of workers compensation.

A motion to dismiss a suit in federal court on the basis that state law deprives state courts of the ability to hear a similar claim asserts not a lack of jurisdiction, but the invocation of a waiveable affirmative defense that should be construed as a motion for summary judgment.

https://www.ca10.uscourts.gov/opinions/17/17-6065.pdf

Tenth Circuit: Lujan-Jimenez v. Sessions

In the state Trespass statute, the ulterior crime intended during the trespass is irrelevant to the theory of the offense -- a jury could convict under different theories of the ulterior crime.  The statute is therefore not susceptible to modified categorical review, which, in an immigration context, would have shifted the burden to the petitioner to establish that they had not trespassed in the vehicle to commit an ulterior offense that evinced moral turpitude.  Categorically, then, the statute isn't a valid predicate conviction for immigration purposes.

https://www.ca10.uscourts.gov/opinions/16/16-9555.pdf

Tenth Circuit: Auto-Owners Insurance Company v. Csaszar

Exclusion of driver from specific vehicles under an auto insurance policy bars her recovery as a family member under the uninsured motorist provisions when the driver is injured in an accident not involving the scheduled vehicles.

Exclusion from no-fault coverage when excluded from regular policy doesn't violate public policy.

https://www.ca10.uscourts.gov/opinions/17/17-1075.pdf

Ninth Circuit: ASARCO, LLC. v. Allied Industrial and Service Workers

If an employer concedes arbitrability of a question, an arbitrator reviewing a collective agreement that prohibits changes in arbitration may reform the terms of the agreement for mutual mistake, subject to rational basis review; such reformation does not offend public policy.

Dissent:  As the arbitrator's authority arises from the collective agreement, the no-add clause stripped the arbitrator of jurisdiction sufficient to amend.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/19/16-16363.pdf

Seventh Circuit: Adam Delgado v. Merit Systems Protection Board

Where a regulation establishes that claimant has the burden to establish statutorily required administrative exhaustion, the Board cannot require that the employee prove that they typed something into a web form in order to establish jurisdiction.

As the statute only requires that the report must be of something reasonably believed to be a crime, there is no obligation on the reporter to establish all of the elements in the crime in the initial report, or to establish that the report to the Board was identical with the earlier report to internal special counsel.

The exhaustion required by the statute is accomplished by presenting a claim to the special counsel that a legally sophisticated reader could understand and investigate.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:16-1313:J:PerCuriam:aut:T:aOp:N:2173082:S:1

Seventh Circuit: Kevin Carmody v. Board of Trustees of the University of Illinois

If a university official provides incorrect information to investigators, it doesn't, standing alone, present a due process issue for trial, as it doesn't affect the notice and fair hearing protections of due process.

University administrators and officers who would have no reason to doubt the proceeding are not liable for a pre-firing due process claim.

Absent specific waiver, claims against the Board of Trustees of a state university are barred by the state's sovereign immunity.

Denial of summary judgment cannot be challenged on appeal, as the matter of law was fact-bound, and the questions went to trial.

Defts did not waive privilege on inadvertently disclosed document, as production was reasonably diligent, and request for claw-back was timely.

Although plaintiff had no obligation to renew objection to in limine ruling excluding certain evidence, there was insufficient proffer beforehand to preserve the issue for appeal.  ("Deft construes?")

Although appeal was converted to interlocutory status on remand, and the court was therefore free to consider new documents, where these challenged the appellate holding, they needed to surmount the law of the case doctrine and the mandate doctrine.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:16-1335:J:Hamilton:aut:T:fnOp:N:2172829:S:0

 

Seventh Circuit: Anthony Oliver v. Joint Logistics Managers, Inc

In a S1981 employment discrimination claim, A CBA provision allowing the employer to consider many factors in selecting employees for layoffs does not establish that the employer's use of seniority needs to be defended as nondiscriminatory.  (The burden doesn't shift.)

Allegation of discriminatory refusal to rehire is sufficiently rebutted by employer's contention that candidate's skills were insufficient.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1633:J:Kanne:aut:T:fnOp:N:2172953:S:0