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.
Telephonic communications device that stores a predefined list of numbers and then randomly or in a defined manner selects and dials certain numbers doesn't come within the statutory proscription of random dialing machines.
CONCURRENCE IN PART:
Footnote that recites Supreme Court GVR's and denials of certiorari is error, as they're not precedential.
As, under state law, the voidable aspect of an infant's contract is a defense against performance, not a bar to formation, the arbitration waiver within the contract is therefore valid, and questions of whether enforcement would be against public policy is within the scope of arbitration.
Since the state statute prohibiting the discharge of a firearm towards persons, occupied structures, and occupied vehicles requires a higher mens rea than recklessness, its status as a sentencing predicate wasn't changed by a Supreme Court holding that recklessness was an insufficient basis for a conviction involving the threatened or actual use of force against another person.
Issue was forfeited, not waived, when not raised on first appeal.
Court did not err in denying certification of a class based on a statutory claim of sending unsolicited facsimile advertisements; although the unsolicited nature of the communications is an affirmative defense to be established by the defendant, the predominance inquiry looks to the actual management of the claim, and certification risked a multiplicity of mini-trials on the issue.
Court's handling of the implied consent issue was appropriate to the certification stage, as defendant's claim wan't speculative, vague, or unsupported.
Consent provided to third parties isn't considered transferred consent where the original consent included messages from affiliates and vendors.
For pretrial detainees, a Fourteenth Amendment deliberate indifference claim requires something like objective reckless indifference rather than the subjective possession of sufficient knowledge to infer a risk of harm.
DISSENT:
Circuit precedent compels a subjective element; civil law negligence standard is categorically beneath the threshold of a constitutional due process claim; requiring an intentional action begs the question of sufficient knowledge; these facts would satisfy even the majority's novel test.
Bretton Westmoreland v. Butler Cnty.
Supervised release condition delegating to the parole officer the discretion to determine in which cases a certain condition applied wasn't plain error.
A single use of a racial epithet in the workplace can state a claim under Title VII.
As the fees assessed on the exported oil don't accrue any benefit to the exporters, but are rather directed to things generally useful to society, the assessment is an unconstitutional tax, rather than a permissible user fee.
DISSENT:
There are issues for trial, since the assessments aren't tied to the value of each barrel, and there is no explicit requirement in the precedent that the exporter be the sole beneficiary of the fees assessed.
Where testimony objectively establishes fraudulent medical billing practices, there is no categorical requirement to establish actual falsity of diagnosis in particular cases.
When appealing a denial of a chance to speak at sentencing, the appellant must cite a basis for reversal or remand, or make a proffer of evidence that would have been offered.
Sufficient evidence of pervasive fraud to shift the burden of proof on the calculation of damages.
Monastery's Free Exercise rights were not impermissibly burdened by regulation of building construction; in seeking to reinstate the earlier approval while recharacterizing the use of the space in a manner that would eventually require the installation of additional facilities, enough doubt was cast on the legitimacy of the reinstatement that there is no issue for trial as to whether the withholding of reinstatement was arbitrary and capricious.
As the relief sought exceeds the bounds of the earlier favorable ruling by the ALJ, plaintiff was required to exhaust administrative remedies prior to seeking judicial relief for alleged noncompliance with the earlier ruling.
Although the appeal was untimely since the district court had dismissed with leave to amend, the subsequent final order in the case cured the defect.
Absent earlier specific or unqualified statements about the ongoing project, the company had no duty to disclose the setbacks to investors.
Usual timeline between discovery of bug and disclosure of repair insufficient to establish that the company's statements on the matter were false. Forward-looking statements would in any event be subject to the safe-harbor, as they were appropriately qualified.
Control-person liability is derivative of the claim against the company; these facts are insufficient to support such a claim.
The court whose employees have joined a union is a state, not county, entity for purposes of sovereign immunity, given its constitutional and statutory designation within the state. The fact that the state has mandated that the county fund the operations of the court and that the county has discretion in setting the salary levels of the employees supports this, as the mandate is from the state. As the elected state judge exercises ultimate authority in discharging and retaining employees and sets salaries in the first instance, the employment functions of the court are a state matter.
The Contracts Clause is an insufficient basis for S1983 claims.
A Takings Clause injunction would require that there was no remedy sounding in contract; mere breach of contract doesn't state a claim for damages under the Clause.
CBA term in preamble holding that it remains in force until union is decertified or another agreement is reached insufficient to defeat as a matter of law a specific end date in the terms.
Where a state intermediate appellate holding gives a statute a certain construction, the reading is determinative for a federal court attempting to ascertain the views of the state courts, absent persuasive data to the contrary.
State tort of disclosure of private information requires disclosures to be materially highly offensive.
Wiretap Act exemption to one-party consent requires that the interception or recording be for the purpose of committing a crime or tort; facts here insufficient to establish that.
A prosecutor elected within a county and acting within a county is, however, a state officer as opposed to a county officer when deciding questions of or setting policy relevant to the revocation of deferred adjudication in individual cases.
When a fuel is correctly categorized as taxable under the statute, it is ineligible also to be categorized as an alternative fuel, since the latter statute excludes fuels encompassed by the definition of taxable fuels. The statutory scheme is clear enough to defeat a plain meaning argument to the contrary. Any partial categorization of a blend as partially alternative would require a clear statement in the statute.
DISSENT:
The provision making the two categories mutually exclusive is in the excise tax portion of the Code, so the tax credit language in another area isn't bound by it, given plain meaning to the contrary. The excise provisions define the wide swath of the tax categories, and the credit provisions define particular instances. Ordinary meaning is the Star of Bethlehem.
SUPPORTING DENIAL OF EN BANC:
The question of whether a Supreme Court precedent has been overruled requires a clear statement from the Court.
A panel decision validating the new standard isn't in irreconcilable conflict with a contemporaneous (yet subsequent) panel holding that the earlier (conflicting) precedent still controls to a degree.
DISSENTING FROM DENIAL OF EN BANC; VOTING FOR EN BANC:
First panel holding controls; this risks stoking confusion.
VOTING FOR EN BANC:
If the statements in the subsequent holding were dicta, the court would have said that clearly; public and Congressional confusion over the state of the circuit law on the question.
Silence of the immigration statute as to whether the citizen whose child is seeking to immigrate needs to be alive at the time of application isn't sufficient to justify deference to the agency's interpretation imposing the requirement.
Police officers swearing to arrest warrant affidavit and effecting arrest were not performing functions closely tied to the judicial process in allegedly acting at the prosecutor's explicit instructions; a prosecutor providing testimony in support of a warrant would similarly not be shielded by absolute prosecutorial immunity.
Omission from affidavit testimony of factual details critical to the authorizing magistrate's assessment creates an issue for trial as to whether the totality of the omissions were material.
DISSENT:
Arguable probable cause; officers' subjective belief in innocence would be immaterial.
Force majeure clause could be invoked to cancel the contract; there was no obligation to reschedule or change the manner of performance.
The catch-all term of the force majeure clause justified the cancellation, even under strict construction; eusdem generis reading of the enumerated grounds implies that any societal disruption not due to fault or negligence and beyond the parties' control qualified.
Discretionary postponement of performance according to state advisory guidance was a de minimis breach, if at all, since by the time of scheduled performance, the state had issued compulsory guidance.
Absent explicit language of condition, courts can't look beyond integrated agreements to infer that one is conditional upon performance of the other.
Violation of the covenant of good faith and fair dealing doesn't state a claim where it is based on the same theory and facts as the breach claim.