Federal Circuit: HUTCHISON QUALITY FURNITURE v. US

Administrative

Although the suit challenged an order of the Commerce Department, the true nature of the claim was a protest of an action by Customs, and the claim therefore had to be timely raised under the statute governing the latter.


HUTCHISON QUALITY FURNITURE v. US

Ninth Circuit: DETRICE GARMON V. COUNTY OF LOS ANGELES

S1983, Fourth Amendment, Legal Ethics


Absolute prosecutorial immunity is available against claims by third-party witnesses.  Presumptively available for actions relating to preparation for trial.

Limited immunity, at most, for misstatements in statements supporting subpoena application.

Subordinates/supervisors protected to same degree.

Error in denial of leave to amend pro se S1983 municipal liability claim.

State immunity statute refers only to malicious prosecution.


DETRICE GARMON V. COUNTY OF LOS ANGELES

Ninth Circuit: ROSEMARY GARITY V. APWU NATIONAL LABOR ORG.

Employment, Labor, Res Judicata

An allegation of discrimination against a union can state a claim without alleging  breach of the duty of fair representation.


ROSEMARY GARITY V. APWU NATIONAL LABOR ORG.

Ninth Circuit: USA V. DAVID NOSAL

Computers, White Collar

Federal statute barring unauthorized access to computers refers to the authorization of the computer's owner, not the process of technical authorization.  Affirmative revovcation of access to the system precluded use of the system by any other means.

Trade secrets can be composed of publicly available information.

Error to award the corporate victim attorneys' fees, given brief actual duration of misconduct.

Dissent - It's a hacking law.


USA V. DAVID NOSAL

Eigth Circuit: United States v. The-Nimrod Sterling

Statutory Interpretation

Federal statute prohibiting impersonation of a diplomat is violated by an assertion to be a diplomatic representative of a fictional country.

United States  v.  The-Nimrod Sterling

Eighth Circuit: Symphony Diagnostic Services v. Kimberly Greenbaum

Contracts, Employment

Employee confidentiality agreements and agreements not to compete can be assigned to a successor without the consent of the employee unless the change materially changes the rights of the employee.


Symphony Diagnostic Services  v.  Kimberly Greenbaum

Eighth Circuit: United States v. Austin DeCoster

Cruel & Unusual, Due Process, Sentencing

Corporate liability is not vicarious liability, since there is direct control of the instrumentalities of the crime.  Custodial sentence therefore does not offend Due Process.

No clear error in findings of fact relating to sentencing,

Past offenses of the corporate entity appropriately considered during sentencing, given defts' control of the company.

Concur - Defts' negligence in running the business allows custodial sentence.

Dissent - No, it doesn't.

United States  v.  Austin DeCoster

Eighth Circuit: United States v. Roger Clayton

Sentencing

No procedural error in minimal consideration of deft's background, within-guidelines sentence not substantively unreasonable given the conduct during the crime.

United States  v.  Roger Clayton

Seventh Circuit: Jana Caudill v. Keller Williams Realty,

Contracts, Posner

Liquidated damages for violation of confidentiality agreement related to court settlement denied where the sum was not an approximation of the actual loss sustained.

Injunction denied.


Jana Caudill v.   Keller Williams Realty,

Sixth Circuit: Tri County Wholesale v. Labatt USA Operating Co.

Statutory Interpretation, Takings

A transfer of ownership involving the corporate parent creates a new manufacturing entity which is then able under the state licensing scheme to terminate existing franchise agreements.

No Takings Clause claim, as the licensing scheme is inherently anticompetitive.

Award for economic harm for loss of brand included costs for seeking another supplier -- recovery on both would be double recovery.

Misc. factual findings affirmed.


Tri County Wholesale v. Labatt USA Operating Co.

Fifth Circuit: USA v. Jose Gomez-Valle

Sentencing

Sufficient factual findings in record to deny mitigation for being a minor participant.

USA v. Jose Gomez-Valle

Fourth Circuit: US v. Gaston Saunders

Administrative, Federalism, Vagueness

Law banning fishing except that regulated by Congressionally-instituted multistate compacts does not extend similar exceptions for fishing under plans drafted by multistate commissions not referenced by the Act.

Law is not vague for complexity.


US v. Gaston Saunders

Second Circuit: Laroe Estates, Inc. v. Town of Chester

FRCP

So long as the relief sought and theory of the case are identical, a propsective intervenor of right in a pending action need not demonstrate separate Article III standing.  It is sufficient that they have a direct, substantial, and legally protectable interest relating to the existing case/controversy.

Circuit split flagged.

 Laroe Estates, Inc. v. Town of Chester

Fifth Anniversary

On the evening of July 5, 2011, from the Starbucks in Worldwide Plaza in midtown, the predecessor site to this one posted its first daily rundown:

http://manhattanbarrister.blogspot.com/2011_07_05_archive.html

It's been an off-and-on endeavor, and at times, it was a bit short-form, but it's proved to be a very interesting hobby over the years.  Sometime in 2013, the site passed 2,500 opinion summaries, and there have probably been another thousand or so since.  All freely linked, no ads, and most summaries same-day.  No marketing, but eventually the long tail of organic search returns resulted in a decent audience.

Scrambling from Starbucks to Starbucks to post the last few decisions of the night.... Cadging a library terminal when the equipment gave out...  Interesting times.  Not really a labor of love.  More like a labor of respect.  And excellent batting practice.

Onward.

-CB

Federal Circuit: Amgen Inc. v. Apotex Inc.

Patent, Injunctions

Statutory injunction for biosimilar product marketing conflict upheld.


Amgen Inc. v. Apotex Inc.

DC Circuit: Competitive Enterprise Institute v. Office of Science and Technology Policy

FOIA

Where the documents have not been ceded to the individual, documents on external, non-government websites are within the scope of FOIA.

Concur: Presumption of government control over agency records.

Competitive Enterprise Institute v. Office of Science and Technology Policy

DC Circuit: The Tennis Channel, Inc. v. FCC

Administrative

Agency commission holding that ALJ finding was not supported by substantial evidence and declining to remand for development of the record should be understood to reflect a plenary assessment of the record and a decision on the merits to the contrary where the decision not to reopen is within the agency's discretion.


The Tennis Channel, Inc. v. FCC

DC Circuit: Public Employees v. Abigail Hopper

Environment, Administrative

Agency took an insufficient hard look in preparation of environmental impact statement, given geologist's testimony.

Deference to Coast Guard on the scope of navigation safety terms statute requires to be included in the contract.

Agency's refusal to consider economic impact statement offered by environmental interest group was arbitrary/capricious.


Public Employees v. Abigail Hopper

DC Circuit: Rosebud Mining Company v. MSHA

Administrative

Given mining safety law's requirement that safety measures be redundant, agency adjudication's requirement of multiple safety factors was not arbitrary/capricious and was supported by substantial evidence.

Rosebud Mining Company v. MSHA

Eighth Circuit: United States v. Tonney Valure

Sentencing

No abuse of discretion in court's order that within-guidelines sentences for simultaneous violation of multiple supervised releases be served consecutively.

United States  v.  Tonney Valure