The Intra-Party Fight Among the Democratic Candidates Is Necessary and Healthy

NEIL H. BUCHANAN

UF law professor and economist Neil H. Buchanan explains why the Democratic presidential candidates attacking each other over policy differences and other issues rather than unifying to oppose President Trump in the general election. Buchanan argues that, perhaps illogically, the infighting is essential and a healthy part of the process.

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Bearchild v. Cobban

Docket: 17-35616

Opinion Date: January 16, 2020

Judge: Morgan Christen

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Plaintiff, an inmate at the Montana State Prison (MPS), filed a 42 U.S.C. 1983 action against prison staff members, alleging that his Eighth Amendment rights were violated when he was sexually assaulted during the course of a pat-down search. The district court dismissed all defendants except Sergeant Larry Pasha, the prison guard who conducted the pat down, and a jury subsequently returned a verdict in Pasha's favor. Plaintiff appealed. The Ninth Circuit held that the district court did not abuse its discretion by failing to continue plaintiff's trial sua sponte. The panel recognized that there was no model jury instruction for Eighth Amendment sexual assault, and took this opportunity to address this circuit's law governing this type of claim. The panel held that a prisoner presents a viable Eighth Amendment claim where he or she proves that a prison staff member, acting under color of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner. In this case the model instructions plainly misstated the law applicable to plaintiff's cause. The panel reversed and remanded for a new trial because it was impossible to determine whether the jury would have reached the same result had it been properly instructed.

Heimrich v. United States Department of the Army

Docket: 18-36005

Opinion Date: January 16, 2020

Judge: Gilman

Areas of Law: Labor & Employment Law

The Ninth Circuit affirmed the district court's dismissal, under Federal Rule of Civil Procedure 12(b)(6), of plaintiff's EEO complaint challenging his removal from his job as a power-plant mechanic with the Army Corps of Engineers. 5 U.S.C. 7121(d), a provision of the Civil Service Reform Act of 1978 (CSRA), provides that unionized federal employees seeking to bring discrimination claims may "raise the matter" through either (1) their union's negotiated procedure, or (2) their agency's EEO office, "but not both." In light of the wording and legislative history of 5 U.S.C. 7121(d), as well as the persuasive consensus among courts within and outside this circuit, the panel adopted the definition of the term "matter" as set forth in Bonner v. Merit Systems Protection Board, 781 F.2d 202 (Fed. Cir. 1986), and held that the term "matter" in section 7121(d) refers to the "underlying action" in the collective bargaining agreement (CBA) grievance or the EEO complaint. In this case, plaintiff's EEO complaint raised the same matters as previously covered in plaintiff's union grievance. Furthermore, the panel would not impute a hostile-work-environment claim where no such allegation expressly appeared in the EEO complaint. The panel noted that, although plaintiff's EEO complaint was barred, there was a procedure available to him to raise his hostile-work-environment claim in the grievance process.