Federal Circuit -- SMITH V. DEPT. OF VETERANS AFFAIRS

SMITH V. DEPT. OF VETERANS AFFAIRS

Given that a TDIU determination does not require any analysis of the actual opportunities available in the job market, we decline to conclude that an industrial survey is “necessary” for that purpose in connection with TDIU claims.

Federal Circuit -- SINGLETON V. DEPT. OF VETERANS AFFAIRS

SINGLETON V. DEPT. OF VETERANS AFFAIRS

No lifelibertyproperty (property) deprivation where, after court orders back-dated veterans' relief, an administrative finding reduces the amount by decreasing the level of disability for part of the time.

Tenth Circuit -- ClearOne Communications, Inc., v. Biamp Systems

  ClearOne Communications, Inc., v. Biamp Systems

 Losing party cannot appeal a 12(b)(6) denial after the trial.

Comprehension of trade secret is not necessary for unlawful appropriation - possession of unparsed object code suffices.

No abuse of discretion in allowing expert to testify with minimal notice & disclosure.

Error in court's determination that the special verdict had determined the damages, where another interpretation is possible.

Many smaller issues, including fee-shifting.

Ninth Circuit -- SACKS V. SEC

SACKS V. SEC

Errata

Ninth Circuit -- MAVRIX PHOTO, INC. V. BRAND TECHNOLOGIES, INC.

MAVRIX PHOTO, INC. V. BRAND TECHNOLOGIES, INC.

Specific personal jurisdiction upheld, given purposeful direction.

Ninth Circuit -- COLLEGESOURCE, INC. V. ACADEMYONE, INC.

COLLEGESOURCE, INC. V. ACADEMYONE, INC.

Personal jurisdiction over party upheld , given purposeful direction of business towards the state & Burger King  factors.  

Ninth Circuit --- USA V. FULTON WASHINGTON

USA V. FULTON WASHINGTON

A 60(b) motion is actually a habeus in disguise, as it does not allege a defect in the habeus procedural structure.

Ninth Circuit -- USA V. MARCELINO AGUILAR-REYES

USA V. MARCELINO AGUILAR-REYES

FRCrimP 35(a) is jurisdictional -- no resentencing after 14 days.

Ninth Circuit -- USA V. ROSA DELLA PORTA

USA V. ROSA DELLA PORTA

Where no Allen  charge is given, and no inquiry made into reasons for deadlock, no error in permitting supplemental closing arguments.

Eighth Circuit -- Evgueni Roudachevski v. All-American Care Centers, Inc

Evgueni Roudachevski v. All-American Care Centers, Inc

No error in denial of injunction barring care center from denying privileges to a doctor currently practicing there.

Eighth Circuit -- United States v. Joe Cowling, Jr.

United States v. Joe Cowling, Jr.

 No success on  Franks challenge to search warrant where confidential informant had given misleading information at an earlier interview.

No violation of Confrontation Clause when counsel is barred from introducing prior inconsistent statements on collateral matters from the transcript of a related civil action.

Admitting testimony about related burglaries was kosher despite lack of evidence from search of house connecting deft to those crimes, as there was other evidence to establish the Bell finding of conspiracy.

Evidence of prior bad acts not an abuse of discretion even where deft did not actually physically commit the prior burglary.

Evidence sufficient.

Eighth Circuit -- United States v. Manuel Quintero

United States v. Manuel Quintero

Review of consent to search is for clear error.

Court may permissibly consider a five-hour delay in deciding to undertake search when evaluating consent (nighttime search).

Totality of circumstances can weigh against defendant-specific factors when evaluating consent.

Eighth Circuit -- United States v. Vernis Farmer

United States v. Vernis Farmer

SSA claimant held to have made false statements in claiming not to be working, as while receiving disability benefits, he was working...  as a Chief of Police.

Sentence at bottom of guidelines range not unreasonable.

Eighth Circuit -- United States v. Michael Wells

United States v. Michael Wells

 No decision on whether de novo or clear error applies to curtilage determinations.

Unpaved driveway to two-story outbuilding is within curtilage.

Knock & talk requires that you go to the front door.

Eigth Circuit -- United States v. Steven Renner

United States v. Steven Renner

 No constructive amendment of the indictment, as evidence at trial was consistent with the course of conduct charged in the indictment.

No error in jury instruction saying that accessed funds are taken funds, despite tax rule that accessed funds remain as liability to the depositor of the funds - reasoning: rule that embezzled funds are dated by the date of embezzlement.

No error in instruction not saying that good faith is not objective where the instruction says that good faith can be subjective.

Ev was sufficient.

Deft seeking professional advice justified a downward variation in sentence.

Seventh Circuit -- Donald Vance v. Donald Rumsfeld

Donald Vance v. Donald Rumsfeld

(Quick skim - more than 90 pp.)

Bivens claim alleging torture of US citizens in a war zone can continue, but APA military exception blocks action to recover property.

Qualified immunity denied, as no reasonable gov't official could have thought the alleged treatment to be constitutional.

Claims against Rumsfeld pled sufficiently.

Detainee Teatment Act standards do not supersede, as plaintiffs claim that defts modified practices in response.

No deference / national security bar to courts entertaining Bivens actions.

DC & 2nd Circuit decisions holding otherwise referred to aliens, not citizens.

Concur/Dissent: Allow Congress time to fashion a remedy.  Although other cases dealt with aliens, not citizens, courts in denying the remedy have used arguments that apply to citizens. 

Seventh Circuit -- National Shopmen Pen v. DISA

National Shopmen Pen v. DISA 

 Exhaustion requirement of Act does not apply to later revisions of employers' obligations. (Plan is not required to arbitrate subsequent revisions)

After the fact upward revisions of employers obligaitons are generally kosher.  

Seventh Circuit -- USA v. Wanda Joshua

USA v. Wanda Joshua

Metering of mail is sufficient circumstantial evidence to establish mailing for mail fraud.

No post Skilliing reversal for honest-services mail fraud other than bribery, since special verdict indicated jury would have convicted on another theory.

No error in Advice of Counsel jury instruction where deft is claiming Attorney Work as a TKO to mens rea - the effective argument is the same.

No error in jury instruction silent as to presumptions.

Seventh Circuit -- USA v. Anthony Rutledge

USA v. Anthony Rutledge

Second and third steps of Batson cannot be conflated - the court must make an on-the-record assessment of the prosecutor's credibility.

(African-American prosecutor striking an African-American juror.)

Seventh Circuit -- Ramon Pena v. Kraft Foods Global,

Ramon Pena v. Kraft Foods Global,

Error in trial court holding that Title VII showing of racial animus was defeated by a showing that an employee of the same race did not receive such discriminatory work assignments.

Even when discriminatory comments are not proximate to the time of alleged violation, they can support an indirect claim when supported by additional evidence.

Seventh Circuit -- USA v. Wynell Gray

USA v. Wynell Gray

No Brady  violation where potentially exculpatory evidence is in database subject to subpoena but hasn't been extracted/discerned.  Distinction drawn between latent and patent evidence.

Pluto has a 153-hour day.

No error in judge telling jury that witness had declined medical treatment - doesn't speak to veracity of witness or reason for illness.

Seventh Circuit -- Joshua Resendez v. Wendy Knight

Joshua Resendez v. Wendy Knight

Errata.

Fifth Circuit -- Sylvester McClain, et al v. Lufkin Industries Inc.

Sylvester McClain, et al v. Lufkin Industries Inc.

Where abundant and uncontradicted evidence proves the need to retain out-of-area counsel, fees should be calculated based on the fees in counsel's home area.

On remand, trial court should not consider a Perdue variation upward in lodestar to assure equal compensation for plaintiffs and defts.

No error where the 300 day limit on back pay is calculated from a member of the class who did not exhaust administrative remedies. 

Fourth Circuit -- Katrina Okoli v. City of Baltimore

Katrina Okoli v. City of Baltimore 

Strong claim for hostile work environment given claims of occasional jacuzzi-propositioning.  Strong subjective component to HWE.

Dismissal hours after complaint to the Mayor means that quid-pro-quo discrimination is a triable fact. 
(Uncredited Sherlock Holmes quote at the end of the section.)

Letter to Mayor was protected conduct, as city should have known that the claims therein were related to gender harassment.

Summary judgment TKO'd & case remanded.

Second Circuit -- VanCook v. SEC

VanCook v. SEC

Both actions in furtherance of late trading and late trading itself run afoul of SEC Rule 10(b).

(Securities are priced by 4PM, some operators managed to trade after 4PM based on 4PM prices.)


Scienter requirement for recordkeeping rule that all orders must be timestamped refers to knowledge of the practice, not knowledge of the law.


Penalties kosher.

Second Circuit -- Millea v. Metro-North R.R. Co.

Millea v. Metro-North R.R. Co.

Policy requiring specific notification for leave-taking by employee conflicts with FMLA implication that indirect notice is kosher.  No error in jury so finding.


No error in jury instruction holding that the leave policy may not be more stringent than FMLA (counsel's argument had been that the timing may not be more stringent, but other aspects might be.)


Reversal for jury instruction which required a "materially adverse employment action" - given Burlington Northern's wide scope of potential adversity in Title VII actions applies to FMLA claims.


Letter of reprimand in the file is sufficient harm under this standard.


Attorneys' fees should be calculated by lodestar, not as percent of recovery. 

Second Circuit -- Smith v. SEC

Smith v. SEC

No abuse of discretion in Magistrate Judge's unfreezing of real estate asset during SEC prosecution, as the value of the property was declining quickly, and given likely success on the merits, a quick sale by the government was the most equitable remedy.

Second Circuit -- United States v. Plugh

United States v. Plugh

Held :  Post - Berghuis, refusal to sign a waiver of rights form is not an unambiguous invocation of Miranda rights - given the change in the law, gov't can use the statements.

BUT - Court cuts some leeway by reiterating that ultimately, waiver must be knowing and voluntary - as the dude ultimately signed the form, the statements are in.