Federal Circuit: Dupont v. Synvina

A party asserting right of statutory appeal from the patent board doesn't have to establish specific threat of infringement litigation; rather, for standing, a party must establish a controversy of sufficient immediacy and reality.  A competitor's concrete plans for present and future activity that presents a risk of infringement suffice to establish standing.

Given range disclosed in prior art, presumption of obviousness insufficiently rebutted.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1977.Opinion.9-17-2018.pdf

Tenth Circuit: Smith v. Aldridge

State habeas determination that a judge's statement claiming that the jury was zealously watched was more credible than five juror affidavits asserting the jurors slept during the trial was not an unreasonable determination of the facts.

https://www.ca10.uscourts.gov/opinions/17/17-6149.pdf

Ninth Circuit: Nunies v. HIE Holdings

Under the discrimination statute, the minor nature of an actual or perceived injury is an affirmative defense, and the burden to establish this subjective belief or actual condition is on the employer.

Plaintiff employee's claim that work was impossible with the injury sufficed to establish that a major life activity was impossible with the injury.

State statute's assertion that it is the sole remedy does not foreclose a claim under federal law.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/17/16-16494.pdf

Casey Taylor v. Burlington North R.R.

Certified question & bench memo.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/17/16-35205.pdf

Seventh Circuit: Patrick Hrobowski v. USA

As petitioner was sentenced according to four predicate offenses, two of which were facially infirm, a subsequent change in the law enabling a challenge to the other two predicates that was ultimately successful as to one of them does not allow a late challenge to the two infirm predicates.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-17/C:16-3549:J:Kanne:aut:T:fnOp:N:2219599:S:0

Seventh Circuit: Raul Perez-Gonzalez v. Jacqueline Lashbrook

State habeas determination that petitioner's plea deal did not implicitly waive the state's power to seek contempt sanctions for noncompliance was not an unreasonable determination of the facts or application of facts to law.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-17/C:18-1480:J:Brennan:aut:T:fnOp:N:2219305:S:0

Sixth Circuit: United States v. Joshua Pyles

As the arrest warrant for the owner of the car would have justified the stop if there had been a reasonable probability that she was in the car, police officer's initial statement that one passenger's gender was not clear suffices; later testimony that the officer believed all the passengers to be men is not sufficient contradiction to discount the narrative.

Sentencing court's taciturnity as to mental health factors did not rise to the level of procedural error.

Upward variance for criminal history was not an abuse of discretion.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0204p-06.pdf

Sixth Circuit: United States v. Tyrone Christian

En banc order.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0203p-06.pdf

Fifth Circuit: Angela Roberson-King v. State of LA Workforce Cmsn

State law claim must be brought under the law granting the specific cause of action, as opposed to the more procedurally lenient general tort recovery statute.

Discrimination claim under the federal statute does not present an issue for trial when the candidate who actually got the promotion and the plaintiff are equally qualified; the business judgment of the employer is a sufficiently non-pretextual race-neutral justification.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30899-CV0.pdf

First Circuit: US v. Russell

Where a juror omits information on a written questionnaire, and that information presents a valid basis for challenge for cause, waiver is not presumed when counsel do not question the unfinished written reply at voir dire; the juror misconduct is structural error when it results in the vote of a single potentially biased juror.

Juror's lack of disclosure of de minimis contact with witness whose credibility was not at issue was sufficiently investigated by a single consultation with witness; the juror did not have to be recalled.

Drug quantities appropriately established by amounts of fertilizer purchases.

Potential juror's dozing off was sufficient neutral reason to avoid Batson challenge.

Preemptively testifying to prior convictions on direct waives appeal against admission of the convictions.

Potentially improper statements in prosecution's closing were isolated and minor comments in a much larger web of evidence.

http://media.ca1.uscourts.gov/pdf.opinions/16-2386P-01A.pdf

First Circuit: US v. Garcia-Ortiz

As there is no realistically probable scenario in which Hobbs Act robbery could be accomplished without the use or threatened use of force, the offense is a valid predicate.

Harmless error on not revisiting sentence after revision to guidelines during pendency of appeal; original sentencing court understood its discretion to have terms run concurrently or in sequence.

http://media.ca1.uscourts.gov/pdf.opinions/16-1405P-01A.pdf

The rest of the story

Today's other precedential opinions.  (NB 3rd's website a bit flaky today on the chromebook)

http://www.ca5.uscourts.gov/opinions/pub/17/17-40796-CV0.pdf

http://www.ca5.uscourts.gov/opinions/pub/16/16-60515-CV0.pdf

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:18-1060:J:Manion:aut:T:fnOp:N:2218850:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3216:J:Manion:aut:T:fnOp:N:2218849:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Hamilton:aut:T:fnOp:N:2218677:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Easterbrook:dis:T:fnOp:N:2218677:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-1631:J:Rovner:aut:T:fnOp:N:2218685:S:0

http://media.ca8.uscourts.gov/opndir/18/09/171135P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/171677P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/172231P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/172232P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/172399P.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/15-71666.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-15303.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35742.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35753.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-50413.pdf

-CB

Fifth Circuit: USA v. Christopher Vialva

A broad-based challenge to the integrity of the proceedings due to the incapacity of the judge is properly construed as a successive habeas filing rather than a motion to revisit the verdict, as the challenge doesn't arise from a cognizable procedural flaw in the earlier state trial, direct appeal or collateral proceedings.  Where the impacts of the alleged incapacity have already been litigated, permission to file for te writ is appropriately denied.


http://www.ca5.uscourts.gov/opinions/pub/18/18-70008-CV0.pdf

Second Circuit: Cappetta v. Comm’r of Soc. Sec. Admin.

Deference to agency determination that reporting work activity is material; although the consideration is not dispositive of a benefits fraud claim, it does speak to some elements of the determination.

Agency retained the power to reverse the ALJ's finding.

Although the law only penalizes omissions, agency could charge benefits recipient with non-reporting on a monthly basis, since the statute also bars withholding required disclosures.

etc, etc...

http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/doc/16-3540_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/hilite/

Second Circuit: United States v. Spoor

The obscene nature of a film is objectively determined by the film's content; the intention of the creator is considered only as an element of the analysis.

No constructive amendment in shifting dates in facts alleged.

Past bad acts appropriately admitted, as the court was careful to remove the more inflammatory bits.

Within-guidelines 360 month sentence substantively reasonable.

http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/doc/16-2972_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/hilite/

Second Circuit: In re: DeRogatis

Administrator's denial of full survivorship benefits was congruent with plan and statute, but the misstatements by plan employees, when speaking on behalf of the administrator, are subject to a fiduciary duty to the recipients, and the finder of fact may determine that an equitable remedy is in order.

http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/doc/16-977_16-3549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/hilite/

First Circuit: US v. Brake

Although the two sentencing bumps both arise from the possession of the stolen weapon during the crime, one refers to the theft of the weapon, and one refers to the probable use of the weapon.  Absent legislative guidance against double-counting, both may be applied.

http://media.ca1.uscourts.gov/pdf.opinions/17-1978P-01A.pdf

First Circuit: Bonilla-Ramirez v. MVM, Inc.

In establishing similarly-situated comparators for a disparate treatment claim based in misbehavior, the misbehavior of the comparators must be proved.

Retribution claim must be proven beyond proximity in time.

http://media.ca1.uscourts.gov/pdf.opinions/17-1512P-01A.pdf

First Circuit: Nat'l Fed'n of the Blind v. Container Store, Inc.

Blind in-store customers cannot be charged with actual or constructive notice of arbitration provision in retail loyalty club agreement shown on computer display at time of enrollment; the agreement, as it happens, was also illusory, as the store retained untramelled powers to modify the agreement.

http://media.ca1.uscourts.gov/pdf.opinions/16-2112P-01A.pdf

First Circuit: US v. Cruz-Rivera

Statute is a valid predicate crime of violence under use of force clause -- by analogy, since, although it can be accomplished by simple intimidation, bank robbery can also be accomplished by intimidation, and bank robbery is a valid predicate.

As-applied and facial challenge to commerce clause of statute (ACCA?) rejected, as as-applied was conceded in stipulation, and facial because of the theory of the challenge - the crime, not the gun, needs to track to interstate commerce.

Sufficient evidence.

No need for the gov't to produce the weapon at trial.

http://media.ca1.uscourts.gov/pdf.opinions/16-1321P-01A.pdf