Bøger af Landmark Publications

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding civil rights suits brought against law enforcement agencies. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * As the Supreme Court recently reminded us, Bivens is the byproduct of an "ancien regime." Ziglar v. Abbasi, ___ U.S. ___, 137 S. Ct. 1843, 1855, 198 L.Ed.2d 290 (2017) (quotation omitted). In 1971, the Court recognized an implied cause of action to sue federal officers for violating an arrestee's "rights of privacy" by "manacl[ing] petitioner in front of his wife and children," "threaten[ing] to arrest the entire family," and strip searching him. Bivens, 403 U.S. at 389-90, 91 S.Ct. 1999. In the next nine years, the Court recognized two more implied causes of action under Bivens: a Fifth Amendment equal protection claim for employment discrimination by a congressman, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and an Eighth Amendment claim for inadequate medical care by federal jailers, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).Since 1980, however, "the Court has refused" every Bivens claim presented to it. Abbasi, 137 S. Ct. at 1857; see also ibid. (collecting cases). The Court has emphasized that Bivens, Davis, and Carlson remain good law. See id. at 1856-57. At the same time, "it is possible that the analysis in the Court's three Bivens cases might have been different if they were decided today." Id. at 1856. And it has admonished us to exercise "caution" in the "disfavored judicial activity" of extending Bivens to any new set of facts. Id. at 1857 (quotations omitted). Cantu v. Moody, 933 F. 3d 414 (5th Cir. 2019)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the doctrine of Eleventh Amendment sovereign immunity. * * * The Eleventh Amendment to the United States Constitution provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Supreme Court in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), "extended the Eleventh Amendment's reach to suits by in-state plaintiffs, thereby barring all private suits against non-consenting States in federal court." Lombardo v. Pa., Dep't of Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008) (emphasis omitted). Immunity from suit in federal court under the Eleventh Amendment is designed to preserve the delicate and "proper balance between the supremacy of federal law and the separate sovereignty of the States." Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). The Eleventh Amendment serves two fundamental imperatives: safeguarding the dignity of the states and ensuring their financial solvency. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 52, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994) (identifying "States' solvency and dignity" as the concerns underpinning the Eleventh Amendment). Karns v. Shanahan, 879 F. 3d 504 (3rd Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding collective bargaining agreements. * * * Under section 8(a)(5) of the National Labor Relations Act, an employer commits an unfair labor practice if it "refuse[s] to bargain collectively with the representatives of [its] employees." 29 U.S.C. § 158(a)(5). Under the NLRA, collective bargaining consists of a "mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment ...." Id. § 158(d). The subjects of mandatory bargaining are broad and the Supreme Court has explained that "Congress deliberately left the words 'wages, hours, and other terms and conditions of employment' without further definition, for it did not intend to deprive the Board of the power further to define those terms in light of specific industrial practices." First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 675, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981) (quoting 29 U.S.C. § 158(d)). Intern. Longshore & Warehouse Union v. NLRB, 890 F. 3d 1100 (DC Cir. 2018).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the notice pleading standard of Rule 8 of the Federal Rules of Civil Procedure. * * * Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir.2013).Thompson v. Real Estate Mortg. Network, 748 F. 3d 142 (3rd Cir. 2014)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding Medicare fraud. Volume 1 of the casebook covers the DC Circuit and the First through the Fifth Circuit Court of Appeals. * * * The False Claims "Act is intended to reach all fraudulent attempts to cause the Government to pay ou[t] sums of money or to deliver property or services," and "[a] false claim for reimbursement under Medicare, Medicaid, or similar program ... may be false even though the services are provided as claimed." S. Rep. No. 99-345, at 9 (1986). Thus the Anti-Kickback Statute and False Claims Act were not drafted to cabin healthcare providers' liability for certain types of false claims or for certain types of illegal kickbacks. Instead, Congress intended both statutes to reach a broad swath of "fraud and abuse" in the federal healthcare system. H.R. Rep. No. 95-393, at 47 (1977). US ex rel. Greenfield v. Medco Health Solutions, 880 F. 3d 89 (3rd Cir. 2018).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the arbitrary and capricious standard under the Administrative Procedure Act. * * * Under the APA, courts shall "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Nevertheless, the agency must "examine the relevant data and articulate a satisfactory explanation for its action." Turtle Island Restoration Network v. U.S. Dep't of Commerce, 878 F.3d 725, 732 (9th Cir. 2017) (internal quotation marks and citation omitted). We will strike down an agency action as arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or if the agency's decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. at 732-33 (internal quotation marks and citation omitted). Alliance for the Wild Rockies v. US Forest Service, 899 F. 3d 970 (9th Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Fair Labor Standards Act. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * Under the FLSA, an employer must pay overtime compensation to its non-exempt employees who work more than forty hours a week. Cleveland v. City of Elmendorf, 388 F.3d 522, 526 (5th Cir. 2004). In contrast, independent contractors are not entitled to overtime under the FLSA. See 29 U.S.C. § 207(a)(1) ("[N]o employer shall employ any of his employees... for a workweek longer than forty hours unless such employee receives [overtime] compensation[.]" (emphasis added)); Parrish, 917 F.3d at 379 (explaining that to make a prima facie case for unpaid overtime, a plaintiff must prove, inter alia, that "there existed an employer-employee relationship during the unpaid overtime periods claimed"). In addition, the FLSA describes various types of exempt employees who are excluded from the overtime requirement. See 29 U.S.C. §§ 207, 213. Faludi v. US Shale Solutions, LLC, 950 F. 3d 269 (5th Cir. 2020). * * * The FLSA exempts from the overtime requirement "any employee employed in a bona fide executive ... capacity." 29 U.S.C. § 213(a)(1). The employer bears the burden of proving that exemption by a preponderance of the evidence.A required element of the exemption is that the employee be one "[w]ho has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight." 29 C.F.R. § 541.100(a)(4).The regulations illuminate what "particular weight" means. See id. § 541.105. Relevant factors include "[1] whether it is part of the employee's job duties to make such suggestions and recommendations; [2] the frequency with which such suggestions and recommendations are made or requested; and [3] the frequency with which the employee's suggestions and recommendations are relied upon." Id. Generally, the suggestions "must pertain to employees whom the executive customarily and regularly directs." Id. "[O]ccasional suggestion[s]" regarding a coworker don't count. Id. But the employee's suggestions can "still be deemed to have 'particular weight' even if a higher level manager's recommendation has more importance and even if the employee does not have authority to make the ultimate decision." Id. Miller v. Travis County, Texas, 953 F. 3d 817 (5th Cir. 2020).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding hostile work environment claims. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * A hostile environment that violates Title VII "exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (internal quotation marks and brackets omitted). Thus, to state a hostile work environment claim, [the plaintiff] must allege that: (1) he "experienced unwelcome harassment"; (2) the harassment was based on his race or protected activity; (3) "the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere"; and (4) "there is some basis for imposing liability on the employer." Bass, 324 F.3d at 765. Regarding the third element, "[w]hether the environment is objectively hostile or abusive is judged from the perspective of a reasonable person in the plaintiff's position." Boyer-Liberto, 786 F.3d at 277 (internal quotation marks omitted). "That determination is made by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (internal quotation marks omitted). "[R]ude treatment," "callous behavior," or "routine difference of opinion and personality conflict," without more, will not suffice. E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-316 (4th Cir. 2008) (internal quotation marks omitted). Holloway v. Maryland, 32 F. 4th 293 (4th Cir. 2022)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss the doctrine of res judicata. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * "To determine whether the doctrine of res judicata bars a subsequent action, we consider whether (1) the prior decision was a final judgment on the merits, (2) the litigants were the same parties, (3) the prior court was of competent jurisdiction, and (4) the causes of action were the same." Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir. 2017) (internal quotation marks omitted) (quoting In re Layo, 460 F.3d 289, 292 (2d Cir. 2006)). "The doctrine of res judicata, or claim preclusion, holds that 'a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'" Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 284 (2d Cir. 2000) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)). In re Motors Liquidation Co., 943 F. 3d 125 (2nd Cir. 2019)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Family and Medical Leave Act. * * * The FMLA, in relevant part, entitles "an eligible employee ... to a total of 12 workweeks of leave during any 12-month period ... [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The leave can be unpaid. Id. § 2612(c). "Upon an employee's return, her employer must reinstate her to the same or an equivalent position, without any loss of accrued seniority." Carrero-Ojeda, 755 F.3d at 718 (citing Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir. 2005)); see also 29 U.S.C. § 2614(a)(1). * * * The pertinent regulations place the burden on the employee to notify the employer of the need for such leave. See 29 C.F.R. § 825.303. Where the leave is unforeseeable, "an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case." Id. § 825.303(a). In providing such notice, the employee must supply "sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request." Id. § 825.303(b). What constitutes "sufficient information" depends on whether the employee has received leave for that FMLA-qualifying reason before. If she has, "the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave." Id. If she has not, "the employee need not expressly assert rights under the FMLA or even mention the FMLA." Id. In either case, however, the employee does not satisfy this burden merely by calling in sick. See id. ("Calling in 'sick' without providing more information will not be considered sufficient notice to trigger an employer's obligations under the Act."). * * * To protect the exercise of the substantive rights described above, the FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" such rights. 29 U.S.C. § 2615(a)(1). Under this provision, employees may assert so-called "interference" claims alleging deprivations of their substantive rights. Colburn, 429 F.3d at 331. We also permit employees to advance claims under a "retaliation" theory based on their employers' "use [of] the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions." 29 C.F.R. § 825.220(c); see also Colburn, 429 F.3d at p.73 330-32 (identifying the basis of retaliation claims and exploring the overlap between retaliation and interference claims).Germanowski v. Harris, 854 F. 3d 68 (1st Cir. 2017)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding qui tam actions. * * * The FCA imposes significant penalties on any person who "knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval" to the Government or any person who "knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim." 31 U.S.C. § 3729(a)(1)(A)-(B). Rather than rely solely on federal enforcement of these provisions, Congress decided to deputize private individuals, encouraging them to come forward with claims on behalf of the Government in the form of qui tam suits. Qui tam provisions are not new to federal law, appearing as early as the first Congress. J. Randy Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C. L. REV. 539, 554 n.54 (2000). In fact, the FCA and its qui tam provisions emerged "midway through the Civil War, in response to frauds perpetrated in connection with Union military procurement." Id. at 555. Under the FCA's qui tam provisions, "a private party, called the relator, challenges fraudulent claims against the [G]overnment on the [G]overnment's behalf, ultimately sharing in any recovery." United States ex rel. Shea v. Cellco P'ship, 863 F.3d 923, 926 (D.C. Cir. 2017); see 31 U.S.C. § 3730(b). The relator may be awarded up to thirty percent of the proceeds ultimately recovered. 31 U.S.C. § 3730(d). Relators need not allege personal injury but instead sue "to remedy an injury in fact suffered by the United States." Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). The Government may intervene in any qui tam action, taking over from the relator, and, in that event, limiting the relator's share of the recovery to at most twenty-five percent. 31 U.S.C. § 3730(b)(2), (d)(1).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding the doctrine of honest-services fraud. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * It is not a defense to an honest-services fraud charge to claim that a public official would have lawfully performed the official action in question even without having accepted a thing of value. * * * A conviction for honest-services wire fraud requires proof that the defendant used wire communications in interstate commerce to carry out a "scheme or artifice to defraud," 18 U.S.C. § 1343, by depriving another of "the intangible right of honest services," id. § 1346. In Skilling, the Supreme Court construed § 1346 narrowly and held that honest-services fraud encompasses only bribery and kickback schemes. 561 U.S. at 408-09, 130 S.Ct. 2896. To define the scope of the honest-services statute's proscription of bribes and kickbacks, the Skilling Court directed courts to look to, inter alia, federal statutes defining similar crimes, such as 18 U.S.C. § 201(b), the principal federal bribery statute. See id. at 412-13 & n. 45, 130 S.Ct. 2896. * * * We follow the Supreme Court's direction in Skilling and look to § 201(b) to give substance to the prohibition on honest-services fraud. In United States v. Valle, we held that an official may be convicted of bribery under § 201(b)(2) "if he has corruptly entered into a quid pro quo, knowing that the purpose behind the payment that he has ... agreed to receive[] is to induce or influence him in an official act, even if he has no intention of actually fulfilling his end of the bargain." 538 F.3d 341, 347 (5th Cir.2008). Accordingly, pursuant to Valle, a conviction for bribery under § 201(b)(2) does not require proof that the official intended to be influenced in his official actions. See id. Viewed through Skilling's lens, Valle instructs that honest-services fraud also does not require such proof. See Skilling, 561 U.S. at 412, 130 S.Ct. 2896; Valle, 538 F.3d at 347. US v. Nagin, 810 F. 3d 348 (5th Cir. 2016)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding trademark infringement claims. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * *Distinctiveness is the key to trademark protectability. Only distinctive marks-"marks that serve the purpose of identifying the source of ... goods or services" -are entitled to trademark protection under the Lanham Act. Welding Servs., Inc., 509 F.3d at 1357. Marks can be inherently distinctive (marks that themselves identify the source of a particular product or service), or marks can acquire distinctiveness (marks that initially might have described a broad class of products, but that over time developed "secondary meaning ... that links [the mark] to a particular source"). Royal Palm Props., 950 F.3d at 782-83. When a mark is inherently distinctive, no proof of secondary meaning is required to prove protectability. Id. But for marks that are not inherently distinctive, proof of secondary meaning is required to obtain protection. Id. "To separate the 'distinct' from the non-'distinct' ... we have classified marks into four categories, in descending order of strength: (1) 'fanciful' or 'arbitrary, ' (2) 'suggestive, ' (3) 'descriptive, ' and (4) 'generic.'" Id. at 783 (quoting Coach House Rest., Inc. v. Coach & Six Rests., Inc., 934 F.2d 1551, 1559 (11th Cir. 1991)). We consider fanciful, arbitrary, and suggestive marks to be inherently distinctive. Id. Descriptive and generic marks, however, are not inherently distinctive. Id. "Descriptive marks can become protectible only if they 'acquire' distinctiveness by obtaining a 'secondary meaning, ' and generic marks can never become protectible." Id. (quoting Knights Armament Co. v. Optical Sys. Tech., Inc., 654 F.3d 1179, 1188 (11th Cir. 2011)). Pinnacle Advertising v. Pinnacle Advertising, 7 F. 4th 989 (11th Cir. 2021)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding copyright in software and computer code. * * * It is well established that copyright protection can extend to both literal and non-literal elements of a computer program. See Altai, 982 F.2d at 702. The literal elements of a computer program are the source code and object code. See Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir. 1989). Courts have defined source code as "the spelled-out program commands that humans can read." Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 533 (6th Cir.2004). Object code refers to "the binary language comprised of zeros and ones through which the computer directly receives its instructions." Altai, 982 F.2d at 698. Both source and object code "are consistently held protected by a copyright on the program." Johnson Controls, 886 F.2d at 1175; see also Altai, 982 F.2d at 702 ("It is now well settled that the literal elements of computer programs, i.e., their source and object codes, are the subject of copyright protection."). Oracle America, Inc. v. Google Inc., 750 F. 3d 1339 (Fed. Cir. 2014)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Fair Housing Act. * * * The purpose of the Fair Housing Act is "to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601.Linkletter v. Western & Southern Financial Group, 851 F. 3d 632 (6th Cir. 2017) * * *Under 42 U.S.C. § 3604(b), it is unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin." In addition, the Act makes it unlawful "to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of ... any right granted or protected by section ... 3604 ... of this title." 42 U.S.C. § 3617. Among other things, these sections prohibit discriminatory harassment that unreasonably interferes with the use and enjoyment of a home - by another name, a hostile housing environment. Krueger v. Cuomo, 115 F.3d 487, 491 (7th Cir. 1997); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996); see also Bloch, 587 F.3d at 781 (recognizing that the protections under sections 3604(b) and 3617 may be coextensive). * * * A hostile-housing-environment claim requires a plaintiff to show that: (1) she endured unwelcome harassment based on a protected characteristic; (2) the harassment was severe or pervasive enough to interfere with the terms, conditions, or privileges of her residency, or in the provision of services or facilities; and (3) that there is a basis for imputing liability to the defendant. See DiCenso, 96 F.3d at 1008; see also Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017) (listing elements of a Title VII hostile-workplace claim); Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993) (adopting elements of a Title VII hostile-workplace claim for the FHA). Wetzel v. Glen St. Andrew Living Community, LLC, 901 F. 3d 856 (7th Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding civil rights suits brought against law enforcement agencies. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * Qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). It is designed to permit officials to perform their discretionary duties "without the fear of personal liability or harassing litigation." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). The doctrine therefore "protect[s] from suit 'all but the plainly incompetent or one who is knowingly violating the federal law.'" Id. (quoting Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001), vacated 537 U.S. 801, 123 S.Ct. 68, 154 L.Ed.2d 2 (2002)). Because qualified immunity protects officials from suit as well as liability, courts must determine the validity of a claimed qualified immunity defense at the earliest possible time. Id.To deny qualified immunity at the motion to dismiss stage, we must conclude both that the allegations in the complaint, accepted as true, establish a constitutional violation and that the constitutional violation was "clearly established." Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). For these purposes, clearly established law consists of holdings of the Supreme Court, the Eleventh Circuit, or the highest court of the relevant state. See Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997). A "public official 'must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred'" to receive the benefit of qualified immunity. Lee, 284 F.3d at 1194 (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). [ . . . ] Sebastian v. Ortiz, 918 F. 3d 1301 (11th Cir. 2019)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Comprehensive Environmental Response, Compensation, and Liability Act. * * * "Congress enacted CERCLA in 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1613, 'in response to the serious environmental and health risks posed by industrial pollution.'" Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013) (quoting Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009)). CERCLA "imposes strict liability on four categories of potentially responsible parties (PRPs), for the cleanup costs of an environmental hazard, even if the person did not contribute to the contamination." Id. at 956-57 (footnote omitted). The four categories of PRPs are: (1) a past owner or operator of a facility; (2) an owner or operator of a facility; (3) an arranger of waste disposal; or (4) an entity that accepts waste for treatment or disposal. United States v. Shell Oil Co., 294 F.3d 1045, 1053 (9th Cir. 2002); see 42 U.S.C. § 9607(a). Once a PRP is found liable, it may sue other PRPs for contribution to remediation costs under 42 U.S.C. § 9613(f). TDY Holdings, LLC v. US, 885 F. 3d 1142 (9th Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Sherman Antitrust Act. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * For an arrangement to be a conspiracy under § 1, it "must embody concerted action." Am. Needle, 560 U.S. at 191, 130 S.Ct. 2201. Concerted action exists where there is an agreement between "separate economic actors pursuing separate economic interests." Id. at 195, 130 S.Ct. 2201 (internal quotation marks omitted). The fact that the co-conspirators are capable, due to their separateness, of acting in concert is not sufficient. Proof of a conspiracy is required. Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 545 (2d Cir. 1993).A plaintiff must offer "direct or circumstantial evidence that reasonably tends to prove ... a conscious commitment to a common scheme designed to achieve an unlawful objective." Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). Rarely do co-conspirators plainly state their purpose. As a result, courts often must evaluate circumstantial evidence of a conspiracy by weighing "plus factors, which, when viewed in conjunction with the parallel acts, can serve to allow a fact-finder to infer a conspiracy." United States v. Apple, Inc., 791 F.3d 290, 315 (2d Cir. 2015) (citation and internal quotation marks omitted). In Monsanto, the Supreme Court noted that courts should look for evidence that "tends to exclude the possibility that the [defendant was] acting independently." Monsanto, 465 U.S. at 764, 104 S.Ct. 1464. In Matsushita, the Supreme Court elaborated on what this meant: "[C]onduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).* * *Only unreasonable restraints on competition violate § 1 of the Sherman Act. Courts use one of two tests here. "[A] restraint may be adjudged unreasonable either because it fits within a class of restraints that has been held to be 'per se' unreasonable, or because it violates what has come to be known as the 'Rule of Reason.'" Ind. Fed'n of Dentists, 476 U.S. at 457-58, 106 S.Ct. 2009. Regulation of league sports is a textbook example of when the rule of reason applies. See Nat'l Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 101, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). North Amer. Soccer League v. US Soccer Feder., 883 F. 3d 32 (2nd Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Federal Tort Claims Act. * * * "As a sovereign, the United States is immune from suit unless it consents to be sued." White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). The FTCA is "a limited waiver of the sovereign immunity of the United States," Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 270 (3d Cir. 2006), that provides that: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. * * *28 U.S.C. § 2674; see also Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997) ("The Federal Torts [sic] Claims Act is a partial abrogation of the federal government's sovereign immunity that permits suits for torts against the United States.")."To make a claim under the FTCA, a claimant first must file her claim with the administrative agency allegedly responsible for her injuries." Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009). The statute provides: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. Sconiers v. US, 896 F. 3d 595 (3rd Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding claims brought under 18 U.S. Code § 1964 of the Racketeer Influenced and Corrupt Organizations Act. * * * RICO "creates a private civil cause of action that allows '[a]ny person injured in his business or property by reason of a violation of section 1962 to sue in federal district court...." A successful plaintiff may "recover threefold the damages...."RICO is implicated when defendants have engaged in a "pattern of racketeering activity." That pattern consists of certain statutorily defined predicate acts "encompass[ing] dozens of state and federal offenses" "that together demonstrate the existence or threat of continued criminal activity." The statute "sets forth four specific prohibitions aimed at different ways in which a pattern of racketeering activity may be used to infiltrate, control, or operate a[n] enterprise['s]" criminal misconduct. Plaintiffs allege that Defendants violated two of those prohibitions - §§ 1962(c) and (d). Section 1962(c) proscribes participating in the conduct of an interstate enterprise's affairs through a "pattern of racketeering activity," which RICO defines as "at least two acts of racketeering activity." Section 1962(d) makes it unlawful to conspire to violate subsections (a) through (c).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the doctrine of collateral estoppel. * * * "Collateral estoppel, sometimes called issue preclusion, bars parties from re-litigating issues of either fact or law that were adjudicated in an earlier proceeding" before a court or other tribunal of competent jurisdiction. Robb Evans & Assocs., LLC v. United States, 850 F.3d 24, 31 (1st Cir. 2017); see Ramallo Bros. Printing, Inc. v. El Día, Inc., 490 F.3d 86, 89 (1st Cir. 2007) (quoting S. Pac. R.R. Co. v. United States, 168 U.S. 1, 48 (1897)). The doctrine serves the "dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 329 (1st Cir. 2009) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979)). As "issue preclusion prevent[s] relitigation of wrong decisions just as much as right ones," a court charged with applying collateral estoppel ought not inquire into the correctness of the earlier determination of a precluded issue. Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 29 (1st Cir. 2017) (quoting B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1308 (2015)) (alteration in original). Patton v. Johnson, (1st Cir. 2019)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Lanham Act. * * * In order to receive protection under the Lanham Act, a mark must be distinctive - that is, it must uniquely identify a particular brand. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). The PTO organizes marks using categories of ascending distinctiveness: "(1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful." Id. Suggestive, arbitrary, and fanciful marks are inherently distinctive, and thus eligible for registry. See id. By definition, generic and descriptive marks lack the requisite distinctiveness. Id. at 768-69, 112 S.Ct. 2753. A generic mark "refe[rs] to the genus of which the particular product is a species." Id. at 768, 112 S.Ct. 2753. In other words, a generic mark "denotes the product rather than any of the brands of the product." Door Systems, Inc. v. Pro-Line Door Systems, Inc., 83 F.3d 169, 171 (7th Cir. 1996). A descriptive mark "conveys an 'immediate idea of the ingredients, qualities or characteristics of the goods.'" Frosty Treats, 426 F.3d at 1005 (quoting Stuart Hall Co. v. Ampad Corp., 51 F.3d 780, 785-86 (8th Cir. 1995)). Descriptive marks may only be placed on the Principal Register "if shown to have acquired a secondary meaning." Id. * * *The Lanham Act protects both registered and unregistered trademarks. See Matal v. Tam, ___ U.S. ___, 137 S.Ct. 1744, 1752, 198 L.Ed.2d 366 (2017) ("[E]ven if a trademark is not federally registered, it may still be enforceable under § 43(a) of the Lanham Act, which creates a federal cause of action for trademark infringement."). In a trademark suit, whether a mark is registered is important because it determines which party bears the burden of persuasion. If the mark is not registered, the mark user bears the burden of showing that the mark is protected by the Lanham Act. Zobmondo Entm't, LLC v. Falls Media, LLC, 602 F.3d 1108, 1113 (9th Cir. 2010); Bd. of Supervisors for Louisiana State Univ. Agric. & Mech. Coll. v. Smack Apparel Co., 550 F.3d 465, 474 (5th Cir. 2008) ("To prevail on their trademark infringement claim, the plaintiffs ... must establish ownership in a legally [protectable] mark, and ... they must show infringement by demonstrating a likelihood of confusion."). But if a mark is listed on the PTO's Principal Register, the party challenging the mark's validity bears the burden of showing the mark is not protected by the Lanham Act. Lovely Skin, 745 F.3d at 883.ZW USA, Inc. v. PWD Systems, LLC, 889 F. 3d 441 (8th Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues stemming from rate and tariff rulings of the Federal Energy Regulatory Commission. * * * The Federal Power Act, 16 U.S.C. §§ 791a et seq., charges the [Federal Energy Regulatory] Commission with regulating "the transmission of electric energy" and "the sale of electric energy at wholesale" in interstate commerce, id. § 824(b)(1). In exercising that authority, the Commission must ensure that "[a]ll rates and charges" for the "transmission or sale of electric energy subject to" its jurisdiction are "just and reasonable," and that no public utility's rates are unduly discriminatory or preferential. Id. § 824d(a), (b); see NRG Power Mktg., LLC v. Maine Pub. Utils. Comm'n, 558 U.S. 165, 167, 130 S.Ct. 693, 175 L.Ed.2d 642 (2010). * * * To that end, the Act requires every public utility to "file with the Commission" and "keep open in convenient form and place for public inspection schedules showing all rates and charges for any transmission or sale subject to the jurisdiction of the Commission." 16 U.S.C. § 824d(c). That obligation applies whether the rates and charges are set "unilaterally by tariff" or agreed upon in individual contracts between sellers and buyers. NRG Power Mktg., 558 U.S. at 171, 130 S.Ct. 693. When a public utility seeks to change its filed rate, it must "fil[e] with the Commission... new schedules stating plainly the change or changes ... and the time when the change or changes will go into effect." 16 U.S.C. § 824d(d). ESI Energy, LLC v. FERC, 892 F. 3d 321 (DC Cir. 2018). * * * The Federal Power Act's express mandate of openness, transparency, and consistency in rates prevents discrimination, promotes fair and equal access to the utilities' services, ensures the stability and predictability of rates, and reinforces the Commission's jurisdictional authority. See Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 130-31, 110 S.Ct. 2759, 111 L.Ed.2d 94 (1990); Consol. Edison Co. of N.Y. v. FERC, 347 F.3d 964, 969 (D.C. Cir. 2003); Consol. Edison Co. of N.Y. v. FERC, 958 F.2d 429, 432 (D.C. Cir. 1992). ESI Energy, LLC v. FERC, ibid.

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues raised when law enforcement officers assert the affirmative defense of qualified immunity. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). As the Supreme Court has explained, "[q]ualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Id. * * * "The qualified immunity analysis entails two general steps, which can be considered in any order." Godawa v. Byrd, 798 F.3d 457, 462-63 (6th Cir. 2015) (citing Pearson, 555 U.S. at 236, 129 S.Ct. 808). "First, taken in the light most favorable to the party asserting the injury, do the facts alleged show that the officer's conduct violated a constitutional right? Second, is the right clearly established?" Seales v. City of Detroit, 724 F. App'x 356, 359 (6th Cir. 2018) (quoting Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)). "To qualify as clearly established, [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Kindl v. City of Berkley, 798 F.3d 391, 398 (6th Cir. 2015) (alteration in original) (internal quotation marks omitted) (quoting Brown v. Lewis, 779 F.3d 401, 412 (6th Cir. 2015))."[T]he plaintiff bears the burden of showing that an officer is not entitled to the defense of qualified immunity." Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016) (citing Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)). Rafferty v. Trumbull County, Ohio, 915 F. 3d 1087 (6th Cir. 2019)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Fair Credit Reporting Act. * * * The FCRA provides for civil liability in 15 U.S.C. §§ 1681n and 1681o. Whether the violation was willful or negligent dictates the type of damages awarded. If a violation is willful, the defendant is subject to punitive damages. 15 U.S.C. § 1681n. However, if a plaintiff fails to show that the violations are willful, a defendant will only be held liable for the plaintiff's actual damages. See 15 U.S.C. § 1681o. If a plaintiff fails to demonstrate willfulness and actual damages, the claim must fail. According to section 1681n, a defendant commits a willful violation and is subject to punitive damages only if it engages in "willful misrepresentations or concealments." 15 U.S.C. § 1681n(a)(2); see also Stevenson v. TRW, Inc., 987 F.2d 288, 294 (5th Cir. 1993) (quoting Pinner v. Schmidt, 805 F.2d 1258, 1263 (5th Cir. 1986)). Noncompliance is considered willful when the defendant "knowingly and intentionally committed an act in conscious disregard for the rights of others." Pinner, 805 F.2d at 1263. A failure to adequately investigate and swiftly correct inaccurate information generally does not constitute a willful violation. See id. at 1262-63. Cameron v. Greater New Orleans Federal Credit Union, (5th Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the False Claims Act. * * * The FCA imposes significant penalties on any person who "knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval" to the Government or any person who "knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim." 31 U.S.C. § 3729(a)(1)(A)-(B). US ex rel. Wood v. Allergan, Inc., 899 F. 3d 163 (2nd Cir. 2018). * * * The FCA allows private persons, or relators, to prosecute qui tam actions "against alleged fraudsters on behalf of the United States government." United States ex rel. Watson v. King-Vassel, 728 F.3d 707, 711 (7th Cir. 2013); 31 U.S.C. § 3730. If the government does not intervene in the action, [] the relator may proceed with the case on his own, though still on behalf of the government. 31 U.S.C. § 3730(c)(3). If the action is successful, the relator is eligible to receive a percentage of the recovery. Id. § 3730(d)(1)-(2). US ex rel. Berkowitz v. Automation Aids, Inc., 896 F. 3d 834 (7th Cir. 2018).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss provisions of the National Labor Relations Act. * * * First, section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed [under section 7 of the (National Labor Relations Act)]." 29 U.S.C. § 158(a)(1). Section 7, in turn, provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. * * * Second, section 8(a)(3) "makes it an unfair labor practice for an employer to discriminate against employees 'in regard to hire or tenure of employment or any term or condition of employment to . . . discourage membership in any labor organization.'" Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 955 (D.C. Cir. 1988) (quoting 29 U.S.C. § 158(a)(3)). * * * Third, section 8(a)(4) makes it an unfair labor practice for an employer "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under [the National Labor Relations Act]." 29 U.S.C. § 158(a)(4). * * * And, finally, section 8(a)(5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). * * * Murray American Energy, Inc. v. National Labor Relations Board, (DC Cir. 2019)