Veterans, Administrative
Construing things in the manner most favorable to the veteran doesn't bar Chevron deference to decisions by Veterans Affairs.
Given statutory rulemaking mandate to the Secretary, rule requiring remand to agency from Board to substitute a claimant for a deceased petitioner is not arbitrary & capricious.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-7024.Opinion.1-11-2016.1.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.
Federal Circuit: Ethicon Endo-Surgery Inc. v. Covidien LP
Patent, Due Process
Absent claims of extrajudicial influence, no Due Process harm in the initial and final review being performed by the same panel.
Statute does not bar.
Review correctly identified innovation as obvious, as infringing prior art that incorporated the innovation was primarily marketed under other aspects.
Dissent: As statute assigns one level of adjudication to the Director and one to the Board, there must be separate panels.
[Again, we don't know many things, but we especially don't know Patent Law. Just trying for comprehensive access to slips.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1771.Opinion.1-8-2016.1.PDF
Absent claims of extrajudicial influence, no Due Process harm in the initial and final review being performed by the same panel.
Statute does not bar.
Review correctly identified innovation as obvious, as infringing prior art that incorporated the innovation was primarily marketed under other aspects.
Dissent: As statute assigns one level of adjudication to the Director and one to the Board, there must be separate panels.
[Again, we don't know many things, but we especially don't know Patent Law. Just trying for comprehensive access to slips.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1771.Opinion.1-8-2016.1.PDF
Tenth Circuit: Martin Marietta Materials v. Kansas DOT
Administrative, Procedural DP
Federal statutory requirement that changes to state agency's plan receive federal approval in order to receive certain federal funds does not create a property interest assertable by the suppliers affected by the change.
Supplier is not in privvity with contractor in contract with state government.
Being on a list of approved suppliers does not create a property interest.
No mutually explicit understanding.
No liberty interest imperiled by defamation by removal from approved supplier list, as the test results were true.
No showing of concrete harm from gov't statements.
https://www.ca10.uscourts.gov/opinions/13/13-3314.pdf
Federal statutory requirement that changes to state agency's plan receive federal approval in order to receive certain federal funds does not create a property interest assertable by the suppliers affected by the change.
Supplier is not in privvity with contractor in contract with state government.
Being on a list of approved suppliers does not create a property interest.
No mutually explicit understanding.
No liberty interest imperiled by defamation by removal from approved supplier list, as the test results were true.
No showing of concrete harm from gov't statements.
https://www.ca10.uscourts.gov/opinions/13/13-3314.pdf
Tenth Circuit: Tripodi v. Welch
FRCP, Bankruptcy
Default judgment in securities action not susceptible to attack on the basis that the notes described in the pleadings were not securities, as they are not barred as a matter of law from being considered securities.
Securities judgment properly held nondischargable in bankruptcy, as relevant nondischargablilty statute requires a judicial order or verdict.
https://www.ca10.uscourts.gov/opinions/14/14-4084.pdf
Default judgment in securities action not susceptible to attack on the basis that the notes described in the pleadings were not securities, as they are not barred as a matter of law from being considered securities.
Securities judgment properly held nondischargable in bankruptcy, as relevant nondischargablilty statute requires a judicial order or verdict.
https://www.ca10.uscourts.gov/opinions/14/14-4084.pdf
Eighth Circuit: United States v. Peter Giambalvo
Tax, Statute of Limitations, FRE
Parenthetical inclusion of offense in statute did not incorporate the statute of limitations for the offense.
Testimony as to impact of tax-avoidance book properly excluded, as subjective reliance of the deft is the sole criterion.
Statements on direct by gov't expert did not open the door to testimony about the general lack of a tax obligation, as the actual amount objectively due is immaterial to the subjective belief in the falsity of a tax filing.
The fact that a zero-income 1040 filing is possibly not a tax return as a matter of law doesn't bar a prosecution for filing a false form.
http://media.ca8.uscourts.gov/opndir/16/01/151136P.pdf
Parenthetical inclusion of offense in statute did not incorporate the statute of limitations for the offense.
Testimony as to impact of tax-avoidance book properly excluded, as subjective reliance of the deft is the sole criterion.
Statements on direct by gov't expert did not open the door to testimony about the general lack of a tax obligation, as the actual amount objectively due is immaterial to the subjective belief in the falsity of a tax filing.
The fact that a zero-income 1040 filing is possibly not a tax return as a matter of law doesn't bar a prosecution for filing a false form.
http://media.ca8.uscourts.gov/opndir/16/01/151136P.pdf
Eighth Circuit: Charles Mitchael v. Carolyn W. Colvin
SSA, FRCP
As the question of retroactive application of a claims adjudication does not present an objective nondiscretionary agency duty, Federal jurisdiction under the mandamus statute is improper.
No equal protection or due process claim, as rules on retroactive application constitute a legitimate procedural bar, and plaintiffs did not challenge constitutionality of old rule in initial proceeding.
http://media.ca8.uscourts.gov/opndir/16/01/143220P.pdf
As the question of retroactive application of a claims adjudication does not present an objective nondiscretionary agency duty, Federal jurisdiction under the mandamus statute is improper.
No equal protection or due process claim, as rules on retroactive application constitute a legitimate procedural bar, and plaintiffs did not challenge constitutionality of old rule in initial proceeding.
http://media.ca8.uscourts.gov/opndir/16/01/143220P.pdf
Seventh Circuit: Roberta Jaburek v. Anthony Foxx
FRCP, Title VII
No error in the denial of motion to reconsider grant of extension of time to file, as opposing counsel had gout.
Summary judgment against plaintiff on lack of promotion upheld, as plaintiff merely claimed that she was doing the work equivalent of the higher position, and never actually applied for the position. Comparators antedated her employment.
Insufficient definition of core tasks.
No retaliation absent proof of cognizable assertion prior to adverse action.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2165:J:Bauer:aut:T:fnOp:N:1686153:S:0
No error in the denial of motion to reconsider grant of extension of time to file, as opposing counsel had gout.
Summary judgment against plaintiff on lack of promotion upheld, as plaintiff merely claimed that she was doing the work equivalent of the higher position, and never actually applied for the position. Comparators antedated her employment.
Insufficient definition of core tasks.
No retaliation absent proof of cognizable assertion prior to adverse action.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2165:J:Bauer:aut:T:fnOp:N:1686153:S:0
Sixth Circuit: LFP IP, LLC v. Hustler Cincinnati, Inc.
Injunctions
No clear error in court holding that injunction protecting mark derived from a surname owned by one sibling to the exclusion of others can be modified to include related products.
http://www.ca6.uscourts.gov/opinions.pdf/16a0010p-06.pdf
No clear error in court holding that injunction protecting mark derived from a surname owned by one sibling to the exclusion of others can be modified to include related products.
http://www.ca6.uscourts.gov/opinions.pdf/16a0010p-06.pdf
Sixth Circuit: Donald Burniac v. Wells Fargo Bank, N.A.
FRCP
State court default judgment did not bar summary judgment for the other party upon removal to federal court, as the case was removed after the request for summary judgment, but before the formal entry by the clerk.
Federal judgment extinguished the state preliminary injunction; the preliminary injunction did not bar removal.
Statutory irregularities in foreclosure proceeding made proceeding voidable, not void. No prejudice shown.
http://www.ca6.uscourts.gov/opinions.pdf/16a0009p-06.pdf
State court default judgment did not bar summary judgment for the other party upon removal to federal court, as the case was removed after the request for summary judgment, but before the formal entry by the clerk.
Federal judgment extinguished the state preliminary injunction; the preliminary injunction did not bar removal.
Statutory irregularities in foreclosure proceeding made proceeding voidable, not void. No prejudice shown.
http://www.ca6.uscourts.gov/opinions.pdf/16a0009p-06.pdf
Fifth Circuit: Michael Cannon v. Jacobs Field Svc N Amer, Inc.
ADA
Error to grant summary judgment against ADA claim by engineer unable due to injury to lift hand above head, given the possibility that he might be able to climb ladders properly and do without medication.
Confusing procedural bit at the end on SJ on non-accommodation claim.
http://www.ca5.uscourts.gov/opinions/pub/15/15-20127-CV0.pdf
Error to grant summary judgment against ADA claim by engineer unable due to injury to lift hand above head, given the possibility that he might be able to climb ladders properly and do without medication.
Confusing procedural bit at the end on SJ on non-accommodation claim.
http://www.ca5.uscourts.gov/opinions/pub/15/15-20127-CV0.pdf
DC Circuit: USA v. Stephen Hunter
Sentencing
General opportunity to lodge objections at the end of sentencing suffices to elicit objections on the sentence - the judge need not necessarily mention the sentencing in the prompt. Circuit split flagged.
Lack of adjustment to below-guidelines sentence after vacated enhancement doesn't violate deft's rights.
Sufficient explanation for post-sentencing rehabilitation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CBEA4FF41EFCFF0085257F380053AAAB/$file/14-3046-1592959.pdf
General opportunity to lodge objections at the end of sentencing suffices to elicit objections on the sentence - the judge need not necessarily mention the sentencing in the prompt. Circuit split flagged.
Lack of adjustment to below-guidelines sentence after vacated enhancement doesn't violate deft's rights.
Sufficient explanation for post-sentencing rehabilitation.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CBEA4FF41EFCFF0085257F380053AAAB/$file/14-3046-1592959.pdf
DC Circuit: Mach Mining, LLC v. Secretary of Labor
Administrative / Negligence
Substantial evidence for Commission's adjudication of high negligence, as proof of mitigations only bars the finding of high negligence in the agency's formulation of violations presented to the commission, not in the adjudications themselves.
High negligence under either standard in this case, though.
https://www.cadc.uscourts.gov/internet/opinions.nsf/3B01146121C32D7385257F380053AA90/$file/14-1266-1592965.pdf
Substantial evidence for Commission's adjudication of high negligence, as proof of mitigations only bars the finding of high negligence in the agency's formulation of violations presented to the commission, not in the adjudications themselves.
High negligence under either standard in this case, though.
https://www.cadc.uscourts.gov/internet/opinions.nsf/3B01146121C32D7385257F380053AA90/$file/14-1266-1592965.pdf
Eleventh Circuit: USA v. Antone T. Adams
ACCA
Sentence imposed under ACCA residual clause vacated on direct appeal, as state priors aren't predicates.
http://media.ca11.uscourts.gov/opinions/pub/files/201414329.pdf
Sentence imposed under ACCA residual clause vacated on direct appeal, as state priors aren't predicates.
http://media.ca11.uscourts.gov/opinions/pub/files/201414329.pdf
Eleventh Circuit: Karen Perez v. Michael Suszczynski
S1983
Denial of qualified immunity upheld where credible testimony says that decedent was prone, unresisting, and disarmed.
http://media.ca11.uscourts.gov/opinions/pub/files/201413619.pdf
Denial of qualified immunity upheld where credible testimony says that decedent was prone, unresisting, and disarmed.
http://media.ca11.uscourts.gov/opinions/pub/files/201413619.pdf
Ninth Circuit: David Reyes v. Christopher Smith
PLRA / Administrative
The exhaustion requirements are met under the PLRA where prison officials issue a decision on the merits while disregarding procedural flaws in the appeal.
As the complaint put the prison officials on notice of the full dimensions of the claim, it sufficed to exhaust administrative remedies.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/12/13-17119.pdf
The exhaustion requirements are met under the PLRA where prison officials issue a decision on the merits while disregarding procedural flaws in the appeal.
As the complaint put the prison officials on notice of the full dimensions of the claim, it sufficed to exhaust administrative remedies.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/12/13-17119.pdf
Ninth Circuit: Javier Bravo Sr. v. City of Santa Maria
S1983 / Fees
In determining the award of fees for a S1983 action, recoveries by nonparties in cases resulting from the same facts and circumstances can be considered where the outcome of the case resulted in significant public benefits.
Error not to offset the award of costs by the costs already paid.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/12/14-55557.pdf
In determining the award of fees for a S1983 action, recoveries by nonparties in cases resulting from the same facts and circumstances can be considered where the outcome of the case resulted in significant public benefits.
Error not to offset the award of costs by the costs already paid.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/12/14-55557.pdf
Ninth Circuit: USA v. Elven Swisher
First Amendment, En Banc
The Supreme Court's holding that false statements of military valor are protected under the First Amendment was a change in the substantive law, and is retroactively applicable to cases on collateral review.
The wearing of a military medal that was not granted by the armed services is an act of expressive speech, and no compelling government interest justified its criminalization.
Dissent: Wearing a medal is substantially different from saying that a medal was won. Gvt may legitimately ban.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/11-35796.pdf
The Supreme Court's holding that false statements of military valor are protected under the First Amendment was a change in the substantive law, and is retroactively applicable to cases on collateral review.
The wearing of a military medal that was not granted by the armed services is an act of expressive speech, and no compelling government interest justified its criminalization.
Dissent: Wearing a medal is substantially different from saying that a medal was won. Gvt may legitimately ban.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/11-35796.pdf
Ninth Circuit: The Center for Auto Safety v. Chrysler Corp.
FRCP
Requirement of mere good cause for sealing motions and their attachments does not turn on whether they are dispositive, but rather whether they are only tangentially related to the merits.
Concurrence: In the case at bar, the motion was dispositive as to the preliminary injunction.
Dissent: Requiring compelling interest for disclosure unless dispositive is a clearer rule, and compelled by precedent.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/15-55084.pdf
Requirement of mere good cause for sealing motions and their attachments does not turn on whether they are dispositive, but rather whether they are only tangentially related to the merits.
Concurrence: In the case at bar, the motion was dispositive as to the preliminary injunction.
Dissent: Requiring compelling interest for disclosure unless dispositive is a clearer rule, and compelled by precedent.
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/11/15-55084.pdf
Eighth Circuit: United States v. Devord Frank Allen
Sentencing.
Sentence imposed upon revocation of supervised release is a valid predicate for the career offender sentencing enhancement.
http://media.ca8.uscourts.gov/opndir/16/01/151179P.pdf
Sentence imposed upon revocation of supervised release is a valid predicate for the career offender sentencing enhancement.
http://media.ca8.uscourts.gov/opndir/16/01/151179P.pdf
Eighth Circuit: United States v. Norman Burch
FRE
Prior consistent statement not hearsay, given variations in deft's assertions as to when the incentive to mislead began.
Witness testimony referencing excluded prior written statement wasn't sufficiently dispositive.
Sentencing - cross-referencing upheld, statutory maximum sentence less than the guidelines range presumed reasonable.
http://media.ca8.uscourts.gov/opndir/16/01/143649P.pdf
Prior consistent statement not hearsay, given variations in deft's assertions as to when the incentive to mislead began.
Witness testimony referencing excluded prior written statement wasn't sufficiently dispositive.
Sentencing - cross-referencing upheld, statutory maximum sentence less than the guidelines range presumed reasonable.
http://media.ca8.uscourts.gov/opndir/16/01/143649P.pdf
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