The “When” of Chevron: The Missed Opportunity of County of Maui

SAMUEL ESTREICHER, DANIEL FOLSOM

NYU law professor Samuel Estreicher and rising 3L Daniel Folsom comment on the U.S. Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, in which the Court interpreted a provision of the Clean Water. Estreicher and Folsom argue that the case presented an opportunity to clarify the murky question of when the Chevron doctrine applies, yet the Court avoided answering that question.

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The Unnecessary Protection of Qualified Immunity

JOANNA C. SCHWARTZ, SETH STOUGHTON

UCLA law professor Joanna C. Schwartz and South Carolina law professor Seth W. Stoughton address some of the arguments commonly asserted to support qualified immunity, the doctrine that shields police officers from civil liability for constitutional violations. Schwartz and Stoughton argue that eliminating qualified immunity should not affect police decision-making and that existing Supreme Court doctrine gives police officers plenty of leeway to make mistakes without violating the Constitution. Because qualified immunity applies only to unreasonable actions by police officers, eliminating or substantially restricting it should not a chilling effect on police officers’ ability or willingness to respond to critical incidents.

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Avalos v. Department of Housing and Urban Development

Docket: 19-1118

Opinion Date: June 26, 2020

Judge: Todd Michael Hughes

Areas of Law: Government & Administrative Law, Labor & Employment Law

In 2009, Avalos was confirmed as the Under Secretary of Agriculture for Marketing and Regulatory Programs at the USDA. Avalos met Trevino, also a USDA political appointee. Trevino later moved to the Department of Housing and Urban Development and was involved in developing a vacancy announcement and reviewing candidates for the Field Office Director position in HUD’s Albuquerque office. Avalos applied, but the certificate of eligible candidates from which selection would be made listed only a preference-eligible veteran. Treviño sought to consider additional candidates; she did not complete a pass-over request but let the certificate expire and began revising the vacancy announcement. HUD again announced the vacancy. Avalos applied and was the only candidate listed on the certificate. Avalos got the position. During a regular review of appointments, the Office of Personnel Management (OPM) noted that HUD had appointed Avalos without OPM approval and advised HUD that it would not have approved the appointment. OPM instructed HUD to “regularize” the appointment. HUD reconstructed the hiring record and found no intent to grant an unauthorized preference but determined that it could not certify that the appointment met merit and fitness requirements because of Treviño’s involvement. Avalos received a Notice of Proposed Termination. The Merit Systems Protection Board upheld the termination. The Federal Circuit affirmed. The Board correctly found that it had jurisdiction to review Avalos’s appointment and substantial evidence supports the decision to remove Avalos to correct his illegal appointment.

B/E Aerospace, Inc. v. C&D Zodiac, Inc

Docket: 19-1935

Opinion Date: June 26, 2020

Judge: Jimmie V. Reyna

Areas of Law: Intellectual Property, Patents

On inter partes review (IPR) of B/E’s patents, the Patent Trial and Appeal Board found certain claims unpatentable as obvious. The patents relate to space-saving technologies for aircraft enclosures such as lavatory enclosures, closets, and galleys. The patents are directed to space-saving modifications to the walls of aircraft enclosures; they are not directed to the structures contained within those walls. The Federal Circuit affirmed, rejecting an argument that the Board incorporated a claim limitation that is not present in the prior art. The challenged claims would have been obvious because modifying a combination of prior art to include a second recess was nothing more than the predictable application of known technology. The Board fully articulated its conclusion of obviousness, and substantial evidence supports the Board’s determination of obviousness independent of whether it erred in considering design drawings.