Patent.
No plain error in Patent Board's refusal to accept new evidence offered solely on the basis of timeliness and relevance. Agency has discretion, not arbitrary/capricious.
Use of a fog machine to test for leaks in a conduit was not particularly obvious.
[Again, we don't know many things, but we especially don't know Patent.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1047.Opinion.12-29-2015.1.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.
Ninth Circuit - James Styers v. Charles Ryan
Habeas/AEDPA.
Very complex. Here's our best guess on a first read:
When a state court re-evaluates a capital sentence due to a Federal Habeas writ, the case remains under collateral appeal, and is therefore not subject to non-retroactive changes in the substantive law.
In this case, the state court can consider a mitigating factor in a plenary consideration (whether Arizona's procedure here is genuinely de novo appears to be an open question) and impose the capital sentence without sending the case to a jury.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-16952.pdf
Very complex. Here's our best guess on a first read:
When a state court re-evaluates a capital sentence due to a Federal Habeas writ, the case remains under collateral appeal, and is therefore not subject to non-retroactive changes in the substantive law.
In this case, the state court can consider a mitigating factor in a plenary consideration (whether Arizona's procedure here is genuinely de novo appears to be an open question) and impose the capital sentence without sending the case to a jury.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-16952.pdf
Ninth Circuit: Adobe Systems v. Joshua Christenson
IP - Copyright & Trademark
Where a first sale defense to copyright infringement is argued, the party asserting the defense has the burden to prove the sale, but the party claiming infringement has the burden to prove that the apparent sale was actually a license.
General testimony and generic licensing templates do not suffice for proof that a specific transaction was a license.
An assertion that goods were sold under the correct mark, but without the consent of the owner of the mark speaks to unfair competition, not infringement.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-17371.pdf
Where a first sale defense to copyright infringement is argued, the party asserting the defense has the burden to prove the sale, but the party claiming infringement has the burden to prove that the apparent sale was actually a license.
General testimony and generic licensing templates do not suffice for proof that a specific transaction was a license.
An assertion that goods were sold under the correct mark, but without the consent of the owner of the mark speaks to unfair competition, not infringement.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-17371.pdf
Ninth Circuit: David Correo-Ruiz v. Loretta Lynch
Immigration.
When a petitioner asserts a reliance on prior precedent and there is a genuine issue of retroactivity, but the record is insufficient to describe the claim, the case should be remanded to the agency for the development of the record.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-72126.pdf
When a petitioner asserts a reliance on prior precedent and there is a genuine issue of retroactivity, but the record is insufficient to describe the claim, the case should be remanded to the agency for the development of the record.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-72126.pdf
Ninth Circuit: Jacquelynn Dorrance v. USA
Tax.
Stock acquired by policyholders upon demutualization of a life-insurance company is taxable, as premiums paid were solely for the defined benefit, and not an accrual of value.
Dissent: Value was accrued beyond the level of anticipated benefit prior to the IPO.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-16548.pdf
Stock acquired by policyholders upon demutualization of a life-insurance company is taxable, as premiums paid were solely for the defined benefit, and not an accrual of value.
Dissent: Value was accrued beyond the level of anticipated benefit prior to the IPO.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-16548.pdf
Ninth Circuit: DM Residential Fund II v. First Tennessee Bank DM
Property - rescission.
Lack of electrical service constitutes inquiry notice for lack of utility easement.
Dissent (Koz): No duty to investigate in the statute; no proof that they could have investigated; potential fraud claims are TKO'd by summary judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-56309.pdf
Lack of electrical service constitutes inquiry notice for lack of utility easement.
Dissent (Koz): No duty to investigate in the statute; no proof that they could have investigated; potential fraud claims are TKO'd by summary judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/13-56309.pdf
Seventh Circuit: USA v. Antonio West
Expert testimony - mental handicap.
Where expert testimony on the mental capacity of the defendant can undercut the reliability of a confession, it is admissible on those grounds.
Non-expert testimony subject to the discretion of the court.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-30/C:14-2514:J:Sykes:aut:T:fnOp:N:1679527:S:0
Where expert testimony on the mental capacity of the defendant can undercut the reliability of a confession, it is admissible on those grounds.
Non-expert testimony subject to the discretion of the court.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-30/C:14-2514:J:Sykes:aut:T:fnOp:N:1679527:S:0
Fifth Circuit: Bd. of Trs. Local 392 v. B&B Mech. Servs.
Labor - agency.
Employer's membership in trade negotiating organization sufficed to bind it to the CBA, even though written authorization to bind the employer was never issued.
Secondary certification writings incorporated the unexpired CBA.
http://www.ca6.uscourts.gov/opinions.pdf/15a0301p-06.pdf
Employer's membership in trade negotiating organization sufficed to bind it to the CBA, even though written authorization to bind the employer was never issued.
Secondary certification writings incorporated the unexpired CBA.
http://www.ca6.uscourts.gov/opinions.pdf/15a0301p-06.pdf
Fourth Circuit: Eddy Etienne v. Loretta Lynch
Immigration.
Expedited removal procedures allow aliens no opportunity to raise matters of law related to their deportation - Circuit split flagged.
Checkbox on a form indicating that documents are attached is an insufficient avenue to raise matters not addressed in the other checkbox options.
As Congress implicitly incorporated the common law definition of the crime, a conviction on a state charge of Conspiracy that doesn't require the overt act in furtherance usually required in the modern law still qualifies.
http://www.ca4.uscourts.gov/Opinions/Published/142013.P.pdf
Expedited removal procedures allow aliens no opportunity to raise matters of law related to their deportation - Circuit split flagged.
Checkbox on a form indicating that documents are attached is an insufficient avenue to raise matters not addressed in the other checkbox options.
As Congress implicitly incorporated the common law definition of the crime, a conviction on a state charge of Conspiracy that doesn't require the overt act in furtherance usually required in the modern law still qualifies.
http://www.ca4.uscourts.gov/Opinions/Published/142013.P.pdf
Eleventh Circuit: Glenaan Robbins v. Garrison Property and Casualty Insurance Company
Statutory construction
A no-fault insurance law that awards one level of damages where a medical professional has determined that an emergency existed and a second level of damages where a medical professional determined that an emergency did not exist awards the latter damages when no medical professional opinion was obtained.
http://media.ca11.uscourts.gov/opinions/pub/files/201413724.pdf
A no-fault insurance law that awards one level of damages where a medical professional has determined that an emergency existed and a second level of damages where a medical professional determined that an emergency did not exist awards the latter damages when no medical professional opinion was obtained.
http://media.ca11.uscourts.gov/opinions/pub/files/201413724.pdf
Eleventh Circuit: Brad Buehrle v. City of Key West
First Amendment - Tattoos
Where the designs are not rote application of standardized designs, making tattoos is a form of expression protected by the First Amendment.
No proof in record that allowing tattoo shops would injure neighborhood's character or harm tourism.
Quoting Jimmy Buffett does not suffice.
http://media.ca11.uscourts.gov/opinions/pub/files/201415354.pdf
Where the designs are not rote application of standardized designs, making tattoos is a form of expression protected by the First Amendment.
No proof in record that allowing tattoo shops would injure neighborhood's character or harm tourism.
Quoting Jimmy Buffett does not suffice.
http://media.ca11.uscourts.gov/opinions/pub/files/201415354.pdf
Tenth Circuit: Jones v. Norton
S1983 -- Fourth Amendment.
Where the forensic evidence tends to indicate that the plaintiff's theory of the incident is not supported, summary judgment for the deft is appropriate.
Treaty with the tribe does not confer a right that can be remedied by S1983, as the treaty right of action lies only against the USA.
Assertions of general racism against tribe members were insufficient to prevent summary judgment on conspiracy.
Motions to amend state law tort IIED claims were either untimely by the scheduling order or would not have related back.
No spoiliaton, as FBI had custody, and police manipulation of corpse was immaterial.
As plaintiffs did not timely object to magistrate's order of costs, it is not appealable.
https://www.ca10.uscourts.gov/opinions/14/14-4040.pdf
Where the forensic evidence tends to indicate that the plaintiff's theory of the incident is not supported, summary judgment for the deft is appropriate.
Treaty with the tribe does not confer a right that can be remedied by S1983, as the treaty right of action lies only against the USA.
Assertions of general racism against tribe members were insufficient to prevent summary judgment on conspiracy.
Motions to amend state law tort IIED claims were either untimely by the scheduling order or would not have related back.
No spoiliaton, as FBI had custody, and police manipulation of corpse was immaterial.
As plaintiffs did not timely object to magistrate's order of costs, it is not appealable.
https://www.ca10.uscourts.gov/opinions/14/14-4040.pdf
Tenth Circuit: Shimomura v. Carlson
S1983 - TSA screeners
Qualified immunity upheld for arrest/conspiracy when an agent arrests a passenger for assault, claiming that the passenger stopped suddenly and rolled a bag backwards into the leg of a second officer following behind, who then didn't deny it. No procedural DP claim.
Dissent: As to the arresting officer, a question of material fact as to whether the elements of assault could even have been perceived.
https://www.ca10.uscourts.gov/opinions/14/14-1418.pdf
Qualified immunity upheld for arrest/conspiracy when an agent arrests a passenger for assault, claiming that the passenger stopped suddenly and rolled a bag backwards into the leg of a second officer following behind, who then didn't deny it. No procedural DP claim.
Dissent: As to the arresting officer, a question of material fact as to whether the elements of assault could even have been perceived.
https://www.ca10.uscourts.gov/opinions/14/14-1418.pdf
Tenth Circuit: Hagos v. Raemisch
Habeas - case/controversy, standing.
A Federal habeas petition presents a valid case or controversy with a valid means of redress when the collateral proceeding seeks to challenge one of two concurrent life sentences, where the second conviction is also subject to challenge, as the reversal of the conviction might affect the second collateral challenge.
https://www.ca10.uscourts.gov/opinions/14/14-1497.pdf
A Federal habeas petition presents a valid case or controversy with a valid means of redress when the collateral proceeding seeks to challenge one of two concurrent life sentences, where the second conviction is also subject to challenge, as the reversal of the conviction might affect the second collateral challenge.
https://www.ca10.uscourts.gov/opinions/14/14-1497.pdf
Tenth Circuit: United States v. Tenorio
FRE - admission of polygraph.
Deft opened the door to admission of polygraph by asserting coercion.
Not unduly prejudicial -- trial court fairly weighed.
https://www.ca10.uscourts.gov/opinions/15/15-2037.pdf
Deft opened the door to admission of polygraph by asserting coercion.
Not unduly prejudicial -- trial court fairly weighed.
https://www.ca10.uscourts.gov/opinions/15/15-2037.pdf
Tenth Circuit: United States v. Edwards
4A - Search Warrants.
An affiant's testimony that obscene photos are often accompanied by suggestive photos is insufficient basis for a search warrant for obscene photos based on the presence of suggestive photos.
Good faith exception applies, as there was no need for the issuing magistrate to see the photos, the warrant wasn't impermissibly overbroad, and no affirmative misstatements.
https://www.ca10.uscourts.gov/opinions/14/14-5083.pdf
An affiant's testimony that obscene photos are often accompanied by suggestive photos is insufficient basis for a search warrant for obscene photos based on the presence of suggestive photos.
Good faith exception applies, as there was no need for the issuing magistrate to see the photos, the warrant wasn't impermissibly overbroad, and no affirmative misstatements.
https://www.ca10.uscourts.gov/opinions/14/14-5083.pdf
Ninth Circuit: USA v. Lloyd Taylor
Statutory construction - Crim.
Federal crime of making false statements to a bank need not involve a risk of loss to the bank.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/14-50528.pdf
Federal crime of making false statements to a bank need not involve a risk of loss to the bank.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/14-50528.pdf
Ninth Circuit: Alaska Wilderness League v. Sally Jewell
Environment - Denial of En Banc
Dissent from denial:
There is no Chevron ambiguity in a statute where a fixed number of criteria are established for compliance, and findings of compliance are later accorded discretion.
ESA/CWA.
Court impermissibly allows agency to define its own scope of discretion when it allows it to define a finding of compliance as mandatory when the text does not explicitly so state.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-35866.pdf
Dissent from denial:
There is no Chevron ambiguity in a statute where a fixed number of criteria are established for compliance, and findings of compliance are later accorded discretion.
ESA/CWA.
Court impermissibly allows agency to define its own scope of discretion when it allows it to define a finding of compliance as mandatory when the text does not explicitly so state.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-35866.pdf
Ninth Circuit: Mark Oyama v. University of Hawaii
Where a university's imprimatur is a prerequisite for a specific professional certification, the university is allowed deference in matters of regulation of speech by the candidate.
A candidate in a university professional certification program is not necessarily protected under the public employee speech doctrine.
A student teacher may be removed for conduct that, in the reasonable professional judgment of the university, violates defined and established professional standards which are narrowly tailored to serve the foundational mission of the program.
Programs can look to speech as an indication of likely future conduct.
Academic dismissals do not trigger due process interests so long as they are careful and deliberate.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-16524.pdf
A candidate in a university professional certification program is not necessarily protected under the public employee speech doctrine.
A student teacher may be removed for conduct that, in the reasonable professional judgment of the university, violates defined and established professional standards which are narrowly tailored to serve the foundational mission of the program.
Programs can look to speech as an indication of likely future conduct.
Academic dismissals do not trigger due process interests so long as they are careful and deliberate.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/13-16524.pdf
Ninth Circuit: James McKinney v. Charles Ryan
Habeas - En banc
State courts (whether of the first instance or in final de novo review) cannot impose a causal nexus test for nonstatutory mitigating factors when deliberating a capital sentence.
On Federal collateral review, there need not be a clear indication that a state court disregarded a constitutional principle -- AEDPA language controls.
Error was not structural, but also not harmless.
Dissent:
Arizona Supreme Court review was "last instance," but not "de novo."
Presumption that state court followed law.
Court of first instance considered the mitigation.
Error did not prejudice the decision.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/09-99018.pdf
State courts (whether of the first instance or in final de novo review) cannot impose a causal nexus test for nonstatutory mitigating factors when deliberating a capital sentence.
On Federal collateral review, there need not be a clear indication that a state court disregarded a constitutional principle -- AEDPA language controls.
Error was not structural, but also not harmless.
Dissent:
Arizona Supreme Court review was "last instance," but not "de novo."
Presumption that state court followed law.
Court of first instance considered the mitigation.
Error did not prejudice the decision.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/29/09-99018.pdf
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