S1983
No heightened pleading for FRCP - Iqbal/Twombly prevails.
Plaintiff's attachment of police reports to complaint does not bar plaintiff from challenging substance of the reports.
Second amendement to claim for for purpose of challenging substance of previously attached reports not barred by judicial estoppel.
A S1983 municipal liability suit states a claim despite not identifying the policymaker that adopted the unconstitutional policy.
Unlawful seizure of houseboat is fourth amendment claim, not a due process claim.
http://media.ca11.uscourts.gov/opinions/pub/files/201412482.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: Allen Davis v. USA
Tax
Closing agreements sound in contract, and therefore do not bar subsequent assessments to the contrary, as the tax authority is a direct exercise of statutory authority. The disparity provides a basis for challenge according to the usual means.
All members of a partnership are not parties to a settlement agreement with the Tax Partner of a partnership, so the relevant statute of limitations runs from the entry of stipulated judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/25/13-16458.pdf
Closing agreements sound in contract, and therefore do not bar subsequent assessments to the contrary, as the tax authority is a direct exercise of statutory authority. The disparity provides a basis for challenge according to the usual means.
All members of a partnership are not parties to a settlement agreement with the Tax Partner of a partnership, so the relevant statute of limitations runs from the entry of stipulated judgment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/25/13-16458.pdf
Fifth Circuit: USA v. Michael Gluk, et al
Securities, FRE
Error to exclude SEC report exonerating defts, as it is an administrative report made with expertise -- would not inappropriately sway jury on issues of disputed fact.
Introduction of uncharged bad behaviour incidental to the fraud should have been more carefully policed at trial.
http://www.ca5.uscourts.gov/opinions/pub/14/14-51012-CR0.pdf
Error to exclude SEC report exonerating defts, as it is an administrative report made with expertise -- would not inappropriately sway jury on issues of disputed fact.
Introduction of uncharged bad behaviour incidental to the fraud should have been more carefully policed at trial.
http://www.ca5.uscourts.gov/opinions/pub/14/14-51012-CR0.pdf
Second Circuit: Main Street Legal Services v. National Security Council
FOIA
The NSA is not an agency subject to FOIA.
The sole statutory function of the agency is to advise the President.
Precedent suggesting that it is an agency subject to FOIA derives from the time when it ran the CIA.
No additional APA jurisdiction from staff structure, Presidential directives, prior rulemmakings, etc.
Dismissal on merits proper, because the FOIA requirements are not jurisdictional but instead speak to the remedies available to the court.
Discovery properly denied, as there was no showing of eventual remedy.
"X-Files" Bonus: No caption on the Circuits's web page - just linked from a hyphen in the upper-left.
http://www.ca2.uscourts.gov/decisions/isysquery/5cfcaf68-de00-4f91-ab9b-7ae48aa36f61/1/doc/13-3792comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5cfcaf68-de00-4f91-ab9b-7ae48aa36f61/1/hilite/
The NSA is not an agency subject to FOIA.
The sole statutory function of the agency is to advise the President.
Precedent suggesting that it is an agency subject to FOIA derives from the time when it ran the CIA.
No additional APA jurisdiction from staff structure, Presidential directives, prior rulemmakings, etc.
Dismissal on merits proper, because the FOIA requirements are not jurisdictional but instead speak to the remedies available to the court.
Discovery properly denied, as there was no showing of eventual remedy.
"X-Files" Bonus: No caption on the Circuits's web page - just linked from a hyphen in the upper-left.
http://www.ca2.uscourts.gov/decisions/isysquery/5cfcaf68-de00-4f91-ab9b-7ae48aa36f61/1/doc/13-3792comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5cfcaf68-de00-4f91-ab9b-7ae48aa36f61/1/hilite/
First Circuit: Reyes-Orta v. Highway and Transportation
Free Speech, employment
Letter by co-worker sufficient proof that employer was aware of political affiliation.
Genuine issue of material fact as to whether adverse employment actions created a cause of action.
Bona fide reason for ending of employment does not mean that there is no issue of material fact as to whether the ending of employment would have happened but for the political speech.
http://media.ca1.uscourts.gov/pdf.opinions/14-2172P-01A.pdf
Letter by co-worker sufficient proof that employer was aware of political affiliation.
Genuine issue of material fact as to whether adverse employment actions created a cause of action.
Bona fide reason for ending of employment does not mean that there is no issue of material fact as to whether the ending of employment would have happened but for the political speech.
http://media.ca1.uscourts.gov/pdf.opinions/14-2172P-01A.pdf
First Circuit: Rivera-Carrasquillo v. Calderon-Lozano
Statute of Limitations
Remanded for explanation of whether SOL defense was disallowed as sanction or denied on merits and specific findings on liability.
http://media.ca1.uscourts.gov/pdf.opinions/14-1047P-01A.pdf
Remanded for explanation of whether SOL defense was disallowed as sanction or denied on merits and specific findings on liability.
http://media.ca1.uscourts.gov/pdf.opinions/14-1047P-01A.pdf
Eleventh Circuit: Murray Energy Corporation, et al. v. Secretary of Labor, et al.
Employment, safety
Agency rulemaking on mine dust upheld.
Earlier action in concert with another agency did not mandate a joint revision of the standard, as the joint action was an interim step based on another statutory provision. Stare decisis based on prior Article III review as well.
Substantively, the regulation is not an abuse of discretion.
http://media.ca11.uscourts.gov/opinions/pub/files/201411942.pdf
Agency rulemaking on mine dust upheld.
Earlier action in concert with another agency did not mandate a joint revision of the standard, as the joint action was an interim step based on another statutory provision. Stare decisis based on prior Article III review as well.
Substantively, the regulation is not an abuse of discretion.
http://media.ca11.uscourts.gov/opinions/pub/files/201411942.pdf
Eighth Circuit: James Clifford Slick Basham v. United States
Habeas, Fourth Amendment, (Plea process)
Allegedly favorable plea deal is not a bar to finding prejudice under Strickland in later collateral challenge.
No ineffective assistance Habeas for not challenging the cell phone search two years before Riley.
http://media.ca8.uscourts.gov/opndir/16/01/151980P.pdf
Allegedly favorable plea deal is not a bar to finding prejudice under Strickland in later collateral challenge.
No ineffective assistance Habeas for not challenging the cell phone search two years before Riley.
http://media.ca8.uscourts.gov/opndir/16/01/151980P.pdf
Seventh Circuit: Cesar Flores-Ramirez v. Brian Foster
Habeas
Habeas based on a de-certified court translator barred, as the claim was available at the time of first Habeas petition.
Habeas claim alleging insufficient process during initial collateral proceedings barred, as it does not allege a freestanding redressible constitutional harm in the first proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-22/C:15-1594:J:PerCuriam:aut:T:fnOp:N:1691484:S:0
Habeas based on a de-certified court translator barred, as the claim was available at the time of first Habeas petition.
Habeas claim alleging insufficient process during initial collateral proceedings barred, as it does not allege a freestanding redressible constitutional harm in the first proceedings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-22/C:15-1594:J:PerCuriam:aut:T:fnOp:N:1691484:S:0
Sixth Circuit: USA v. Arnaldo Cabrera
Sentencing.
Twofold plain error in judges' imposition of maximum guidelines sentence due to deft's (1) not taking the stand to support his (2) theory of evidence manipulation.
http://www.ca6.uscourts.gov/opinions.pdf/16a0017p-06.pdf
Twofold plain error in judges' imposition of maximum guidelines sentence due to deft's (1) not taking the stand to support his (2) theory of evidence manipulation.
http://www.ca6.uscourts.gov/opinions.pdf/16a0017p-06.pdf
Sixth Circuit: Jason Blesedell v. Chillicothe Telephone Company
Labor, defamation
No arbitrary breach of the duty of fair representation by the union, as the lack of advocacy stemmed from union's considered adverse decisions on credibility.
No actual malice in statements about plaintiff, as conclusions were reasonable from facts.
http://www.ca6.uscourts.gov/opinions.pdf/16a0016p-06.pdf
No arbitrary breach of the duty of fair representation by the union, as the lack of advocacy stemmed from union's considered adverse decisions on credibility.
No actual malice in statements about plaintiff, as conclusions were reasonable from facts.
http://www.ca6.uscourts.gov/opinions.pdf/16a0016p-06.pdf
Fifth Circuit: Sanderson Farms, Incorporated v. OSHC
Administrative / OSHA
Presumption of hazard properly attaches in initial safety proceedings, as de minimis risk is an affirmative defense later on.
Substantial evidence for agency's abattoir citations.
Agency considered violation of a key projecting at the end of a shaft as being that of a projected shaft. The correct regulation is that regulating keys.
http://www.ca5.uscourts.gov/opinions/pub/15/15-60215-CV0.pdf
Presumption of hazard properly attaches in initial safety proceedings, as de minimis risk is an affirmative defense later on.
Substantial evidence for agency's abattoir citations.
Agency considered violation of a key projecting at the end of a shaft as being that of a projected shaft. The correct regulation is that regulating keys.
http://www.ca5.uscourts.gov/opinions/pub/15/15-60215-CV0.pdf
Second Circuit: Glatt et al. v. Fox Searchlight Pictures, Inc. et al.
Employment / Unpaid interns
No Skidmore deference to DOL definition of an employee.
Internships distinguished from employment by identifying the primary beneficiary of the relationship.
This standard bars the formation of the class due to predominance concerns.
Bonus: cameo by prominent Hollywood pillow.
http://www.ca2.uscourts.gov/decisions/isysquery/2b78c6ab-9a30-46d4-b200-629fd5966190/1/doc/13-4478a_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b78c6ab-9a30-46d4-b200-629fd5966190/1/hilite/
No Skidmore deference to DOL definition of an employee.
Internships distinguished from employment by identifying the primary beneficiary of the relationship.
This standard bars the formation of the class due to predominance concerns.
Bonus: cameo by prominent Hollywood pillow.
http://www.ca2.uscourts.gov/decisions/isysquery/2b78c6ab-9a30-46d4-b200-629fd5966190/1/doc/13-4478a_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b78c6ab-9a30-46d4-b200-629fd5966190/1/hilite/
First Circuit: Carrasquillo-Ortiz v. American Airlines, Inc.
Employment
Question certified to Puerto Rico Supreme Court as to whether the frequent transfer of employees within a single corporate entity counts for severance classification as transfers within P.R. or as international transfers.
(Translated version of relevant PR Court decision attached.)
http://media.ca1.uscourts.gov/pdf.opinions/15-1424P-01A.pdf
Question certified to Puerto Rico Supreme Court as to whether the frequent transfer of employees within a single corporate entity counts for severance classification as transfers within P.R. or as international transfers.
(Translated version of relevant PR Court decision attached.)
http://media.ca1.uscourts.gov/pdf.opinions/15-1424P-01A.pdf
First Circuit: US v. Collins
Fourth Amendment, Sentencing
As deft did not concede possession of the bag at suppression hearing, he has no standing to challenge the search of the bag found in a third party bailee's car.
Threatening with a weapon is a crime of violence for purposes of the career offender sentencing predicate.
http://media.ca1.uscourts.gov/pdf.opinions/15-1292P-01A.pdf
As deft did not concede possession of the bag at suppression hearing, he has no standing to challenge the search of the bag found in a third party bailee's car.
Threatening with a weapon is a crime of violence for purposes of the career offender sentencing predicate.
http://media.ca1.uscourts.gov/pdf.opinions/15-1292P-01A.pdf
First Circuit: US v. Soto-Rivera
Sentencing - Guidelines / Johnson / (ACCA)
Given govt stipulation that Guidelines residual clause is unconstitutionally vague Post-Johnson, an on-point note to the Guidelines doesn't save the predicate, as the note referred to an offense type that appears nowhere outside of the residual clause.
http://media.ca1.uscourts.gov/pdf.opinions/14-1216P-01A.pdf
Given govt stipulation that Guidelines residual clause is unconstitutionally vague Post-Johnson, an on-point note to the Guidelines doesn't save the predicate, as the note referred to an offense type that appears nowhere outside of the residual clause.
http://media.ca1.uscourts.gov/pdf.opinions/14-1216P-01A.pdf
Federal Circuit: Pfizer v. Lee
Patent, Procedure
Claim not waived, as it was referenced in briefs and at argument below.
The time that should have been added to the end of the patent was appropriately tolled during the interval between the notice of insufficiency and the revised notice of insufficiency, as the initial notice put the petitioner on notice of the shortcomings in the claim.
Dissent: A response to an incomplete notice might have itself been incomplete.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1265.Opinion.1-20-2016.1.PDF
Claim not waived, as it was referenced in briefs and at argument below.
The time that should have been added to the end of the patent was appropriately tolled during the interval between the notice of insufficiency and the revised notice of insufficiency, as the initial notice put the petitioner on notice of the shortcomings in the claim.
Dissent: A response to an incomplete notice might have itself been incomplete.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1265.Opinion.1-20-2016.1.PDF
Federal Circuit: Lumen View Technollgy v. FindTheBest.com
Patent, Fees
No abuse of discretion in award of fees, given ill-supported allegations of infringement.
While deterrence is to be considered in whether to award fees, it is not a permissible basis for adjusting the lodestar award.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1275.Opinion.1-20-2016.1.PDF
No abuse of discretion in award of fees, given ill-supported allegations of infringement.
While deterrence is to be considered in whether to award fees, it is not a permissible basis for adjusting the lodestar award.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1275.Opinion.1-20-2016.1.PDF
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