(Very) Short Form: Friday

Very short form.  Just the list, basically.

First Circuit:

US v. Murphy-Cordero  -- As sentence length was a material term of the deal, court's rejection of the recommendation meant that the appeals waiver was also off.  Sentencing.
Javed v. Holder  -- Immigration
Massachusetts Retirement v. CVS Caremark Corporation  -- Securities class-action - causation
Royal Car Rental, Inc. v. Banco Popular de Puerto Rico  -- No subject matter jurisdiction over actions of successor bank. 

Second Circuit:

Rivera v. United States -- Given limited retroactivity, changes in state drug sentencing laws do not retroactively alter the status of the law as an ACCA predicate.

Third Circuit:

USA v. Mark Ciavarella, Jr.

Fourth Circuit:

VRCompliance LLC v. Homeaway, Inc.
Painter's Mill Grille, LLC v. Howard Brown
Angela Johnson v. American United Life Insurance
Grayson Consulting, Inc. v. Wachovia Securities, LLC 
Malcolm White v. Soudabeh White

Sixth Circuit:

Grant, Konvalinka & Harrison v. Banks 
 In Re: Vertrue Inc. Marketing v. 

Seventh Circuit:

Pedro Ramos v.   City of Chicago

Eighth Circuit (Summary from site):

124020P.pdf  05/24/2013  United States  v.  Jeremiah Wroblewski
   U.S. Court of Appeals Case No:   12-4020
   U.S. District Court for the Northern District of Iowa, Waterloo   
   [PUBLISHED] [Per Curiam - Before Shepherd, Arnold and Melloy,
   Circuit Judges]
   Criminal case - Sentencing. The district court did not err in imposing a
   special condition of supervised release which ordered defendant to have
   no contact with his girlfriend as he had a history of domestic violence
   and one of his supervised-release violations was related to an altercation
   with the woman; however, that portion of the restriction prohibiting
   defendant from having any contact with her family was more restrictive
   than necessary and is reversed.

Ninth Circuit:

MANAGED PHARMACY CARE V. KATHLEEN SEBELIUS

INSTITUTE OF CETACEAN RESEARCH V. SEA SHEPHERD CONSERVATION SOCI

Eleventh Circuit:

Darwin Gilberto Ruiz-Turcios v. U.S. Attorney General

Niny J. Motta v. USA

DC Circuit:

Makhtar Al-Wrafie v. Barack Obama

American Federation of Govern v. Secretary of the Air Force

Apologies for all the short form updates of late -- we try to avoid it, as it makes the tags less useful.  Back to long form next week.  Probably.

-MB

Short Form: Wednesday & Thursday

Very short form today, as heading out to concert -- just getting the list out there.

Second Circuit:

United States v. Johnson -- Sentencing - SOP challenge to Commission authority
Walker v. Schult -  S1983 - prison overcrowding
United States v. Bogle - Brief per curiam - Guns/Felons 
United States v. Shellef -- Speedy Trial Act
Executive Plaza, LLC v. Peerless Ins. Co. -- Insurance coverage - Question certified to New York

Fourth Circuit:

Justin Wolfe v. Harold Clarke  -- Habeas - District Court erred in barring retrial, arguing that the Constitutional violations had crystallized around the events.  Best remedy is to release & allow retrial.  Dissent: No abuse of authority in barring retrial.

Sixth Circuit:

Wayne LaFountain v. Shirlee Harry, et al   -- Court can allow prisoner to amend claim screened under PLRA.
Carrie Schlaud v. Rick Snyder  -- Denial of class certification for child-care workers, as not all were in favor of union.
 Indiana State District Council v. Omnicare, Inc.  -- Securities - S11 is a strict liability, no scienter need be pleaded/proved
Exact Software North America, v. Infocon Systems, Inc.  -- FRCP - Stipulated settlement did not deprive the court of jurisdiction; attorney fee question is supplemental, court can resolve despite non-diversity of parties
National Viatical, Inc. v. Universal Settlements  -- FRCP - Denial of injunction upheld

Seventh Circuit:

USA v.   Jose Rosales --  Sentencing
USA v.   Hubert Davenport -- Crim - various challenges
Tommy Morris v.   Salvatore Nuzzo -- Fraudulent joinder / Choice of Law
USA v.   Juan Flores-Olague -- Sentencing - Mainitnaing property for drug use enhancement
USA v.   Ruby Parker - Crim - speedy trial, sentencing, sufficient evidence
Omar Hakim v.   Accenture United States Pension - ERISA - claims release

Eighth Circuit: (From Site):

123232P.pdf   05/23/2013  Buddy Bean Lumber Company  v.  Axis Surplus Insurance Company
  U.S. Court of Appeals Case No:  12-3232
  U.S. District Court for the Western District of Arkansas - Hot Springs    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Civil case - Insurance. The proper interpretation of the coinsurance
  provision in the policy in question depends on whether the insured has
  filed an actual cash value claim or a replacement cost claim; here, where
  the insured filed a claim for the actual cash value of stolen electrical wire,
  the term "value" in the coinsurance policy should be read to mean the
  actual cash value of the insured's mills; based on this interpretation, the
  insured was not subject to a coinsurance penalty on its claim and was
  entitled to receive the value of the wire minus its deductibles and any
  interim payment it had received.

123113P.pdf   05/22/2013  Mark Robbins  v.  Randy Becker, Sr.
  U.S. Court of Appeals Case No:  12-3113
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Riley, Author, with Bye and Benton, Circuit Judges]
  Civil case - Civil rights. The district court's analysis denying
  defendants' motion for summary judgment based on qualified
  immunity is so scant that the court cannot affirm or reverse
  the order, and the matter is remanded for a more detailed
  consideration and explanation.

123524P.pdf   05/22/2013  Bryan Gallimore  v.  Eric H. Holder, Jr.
  U.S. Court of Appeals Case No:  12-3524
  Petition for Review of an Order of the Board of Immigration Appeals    
  [PUBLISHED] [Riley, Author, with Melloy and Shepherd, Circuit Judges]
  Petition for Review - Immigration. The criminal alien bar found in 8
  U.S.C. Sec. 1252(a)(2)(C) precludes this court's review of the BIA's
  decision on CAT relief; to the extent petitioner challenges the legal
  standard used by the BIA, the court rejects the challenge on its merits.

Ninth Circuit (Top paragraph of Reporter's Summary):
FAUZIA DIN V. JOHN F. KERRY -- The panel reversed the district court’s order granting the
Government’s motion to dismiss, on the basis of consular
nonreviewability, United States citizen Fauzia Din’s claims
for a writ of mandamus directing the Government to
adjudicate the visa application she filed on behalf of her
husband Kanishka Berashk and for a declaratory judgment
under the Administrative Procedure Act.

MICHAEL HEDLUND V. THE EDUCATIONAL RESOURCES INST -- Reversing the district court’s judgment, the panel held
that the bankruptcy court did not err in granting a partial
discharge of the debtor’s student loans under 11 U.S.C.
§ 523(a)(8).

SERVICES EMPLOYEES INTERNATION V. SAL ROSSELLI -- The panel affirmed the district court’s judgment, after a
jury trial, in an action under § 501 of the Labor Management
Reporting and Disclosure Act against local union officials
who diverted union resources in an attempt to establish a new
competing local union

Eleventh Circuit:
Wells Fargo Bank, N.A. v. Neil C. Gordon --- Brief per curiam after answer to quesitons certified to Ga.
USA v. Pedro Diaz-Calderone -- Under modified categorical, aggravated battery is qualifying prior crime of violence.
Cheers -- 

MB

(Very) Short Form: Tuesday

First Circuit:

Young v. Wells Fargo Bank  -- Change in loan payments at the end of the initial period did not breach the contract; Delay in notification of new payment obligations states a claim for breach; Statutory claim duplicative of breach claim; No breach of implied covenant of good faith/fair dealing; No IIED claim; Sufficient injury to state claim for debt collection act violation.

Clukey v. Camden, ME  -- S1983: Breach suit not a sufficient remedy for Due Process claim for re-employment by state.

Second Circuit:

CARCO GROUP, Inc., et al. v. Maconachy -- Torts - No PX/CZ; Full salary not a reliable measure of general damages for faithless servant claim; Demial of interest and 20% across-the-board reduction in fees reversed.

Williams v. Comm'r -- No error in denial of face-to-face hearing before assessing tax levy.

Third Circuit:

In Re:Majestic Star Casino LLC v. -- Bankruptcy - No standing, as an S-Corporation status is not property, and there can therefore be no voidable transfer of property due to the change of a corporate status.

Hart v. Electronic Arts Inc -- In balancing Free Speech against a claim for the appropriation of likeness, courts should consider whether the use is transformative - whether ingredient or product imbued with new meaning. (Video games.)

Fifth Circuit:

Natl Rifle Assn of America Inc, et al v. Steven Mc -- Guns - carry right for 18-20 falls outside of 2nd Amendment protections; substantial tailoring enough for intermediate scrutiny; No equal Protection violation as plaintiffs did not carry burden of proving lack of rational basis.

Robert Howard v. Kathleen Blanco, et al -- As the decision as to parole is ultimately discretionary, no ex post facto violation from the change of commutation procedures.

Martha Haire v. Bd Supr LA State University -- Error to dismiss Title VII gender suit against university police department, as the racial animus of offensive comment can be imputed to the ultimate decision-maker; Genuine issue of material fact as to retaliation claim.

Mike Hooks Dredging Co., Inc. v. Eckstein Marine S -- Admiralty - Mooring of dredge in narrows created presumption of fault in the collision - the fact that it was not obstructing traffic is irrelevant; Hole in vessel not significant enough to justify lenity under emergency actions; No abuse of discretion in allowing erxpert witness; FRCP 14(c) does not bar third-party liability.

Eighth Circuit (From site):

111460P.pdf   05/21/2013  Michael Nack  v.  Douglas Walburg
   U.S. Court of Appeals Case No:  11-1460
   U.S. District Court for the Eastern District of Missouri - St. Louis    
   [PUBLISHED] [Melloy, Author, with Wollman and Colloton, Circuit Judges]
   Civil case - Telephone Consumer Protection Act of 1991. District court
   erred in granting defendant summary judgment on plaintiff's claim that
   his receipt of one fax advertisement from defendant which did not
   contain the opt-out language mandated by 47 C.F.R. Sec.
   64.1200(a)(3)(iv) violated the Telephone Protection Act as amended by
   the Junk Fax Prevention Act of 2005; the regulation, as written, requires
   the opt-out language even if the sender received prior express
   authorization to send the fax; this plain-language interpretation of the
   regulation is consistent with the FCC's proffered interpretation of the
   regulation; at this stage of the matter, the court could not entertain
   arguments that the unambiguous regulation is contrary to unambiguous
   statutory language or that the application of the regulation was arbitrary
   or capricious as such challenges would be precluded by the Hobbs Act. 
  
122641P.pdf   05/21/2013  United States  v.  Adam Winarske
   U.S. Court of Appeals Case No:  12-2641
   U.S. District Court for the District of North Dakota - Bismarck    
   [PUBLISHED] [Holmes, Author, with Wollman and Colloton, Circuit Judges]
   Criminal case - Criminal law. Based on information provided by an
   informant, officers had probable cause to arrest defendant for illegally
   possessing a firearm; the officers had ample cause to believe the
   informant was reliable since he had provided accurate information in the
   past, officers had verified certain information he had provided regarding
   defendant, and defendant had shown up at the time and in the location the
   informant had set for a firearm deal; search of defendant's girlfriend's
   vehicle was constitutional as officers had reasonable cause to believe it
   contained evidence of the offense.
  
122813P.pdf   05/21/2013  Brian Ulrich  v.  Pope County
   U.S. Court of Appeals Case No:  12-2813
   U.S. District Court for the District of Minnesota - Minneapolis    
   [PUBLISHED] [Holmes, Author, with Wollman and Colloton, Circuit Judges]
   Civil case - Civil rights. Defendant police officers had arguable
   probable cause to arrest Ulrich for violating a restraining order and were
   entitled to qualified immunity on his claim that his arrest violated his
   Fourth Amendment rights; even assuming plaintiff suffered a
   constitutional deprivation, the district court did not err in dismissing his
   claim against the County since he failed to allege facts in his complaint
   that would demonstrate the existence of a County policy or custom that
   caused the deprivation; the defendant officers were performing
   discretionary, rather than ministerial, functions when they determined that
   Ulrich should be incarcerated following his arrest, and that were entitled
   to official immunity on Ulrich's false imprisonment claim.
  
123267P.pdf   05/21/2013  United States  v.  Michael Never Misses A Shot
   U.S. Court of Appeals Case No:  12-3267
   U.S. District Court for the District of South Dakota - Pierre    
   [PUBLISHED] [Holmes, Author, with Wollman and Colloton, Circuit Judges]
   Criminal case - Sentencing. District court did not err in imposing an
   upward departure based on its determination that defendant's criminal
   history category substantially understated the seriousness of his record
   and the likelihood he would commit future offenses; no error in imposing
   an upward departure based on Guidelines Sec. 5K2.0(a)(1)(A) based on
   the court's determination that this was not a typical false statement case
   since it involved an elaborate set of lies which interfered with an active
   FBI murder investigation and accused two innocent individuals of
   multiple murders; sentence was substantively reasonable.
  
123853P.pdf   05/21/2013  Gerald Geier  v.  Missouri Ethics Commission
   U.S. Court of Appeals Case No:  12-3853
   U.S. District Court for the Western District of Missouri - Jefferson City    
   [PUBLISHED] [Shepherd, Author, with Colloton, Circuit Judge, and
   Rose, District Judge]
   Civil case - Injunctions. Where the Missouri Ethics Commission had
   brought an enforcement action against plaintiff and a political action
   committee for failure to file ongoing reports and other documentation, the
   district court did not err in abstaining from plaintiffs' injunction action on
   the ground the state proceedings, through the administrative and appellate
   process, provided an adequate forum for plaintiffs to raise constitutional
   issues; district court did not err in denying plaintiffs' motion to amend
   their complaint as the matter had been dismissed; even if the action had
   not been completely dismissed, any error in denying the motion to amend
   was harmless as the proposed amendment was futile.

Ninth Circuit (from site):

LAWRENCE V. HOLDER -The panel denied Alfredo Rolando Lawrence’s petition
for review of the Board of Immigration Appeals’ decision
finding him ineligible for INA § 212(c) relief, because he is
an aggravated felon who filed his application for relief after
November 29, 1990. The panel held that the term “admissions” in § 212(c)’s
effective date provision refers to the date that an alien seeks
relief, and thus the aggravated felony bar applies to
applications filed after November 29, 1990, regardless of the
date the alien was initially admitted to the United States.

ANTONIO HINOJOS V. KOHL'S CORPORATION -- The panel reversed the district court’s dismissal of claims under California’s Unfair Competition Law, Fair Advertising
Law, and Consumer Legal Remedies Act brought by a
plaintiff in a putative class action against Kohl’s Department
Stores alleging false advertising.
The panel applied the California Supreme Court’s holding
in Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011),
and held that when a consumer purchases merchandise on the
basis of false price information, and when the consumer
alleges that he would not have made the purchase but for the
misrepresentation, he has standing to sue under the Unfair
Competition Law and Fair Advertising Law because he has
suffered an economic injury. The panel also reversed the
district court’s dismissal of plaintiff’s Consumer Legal
Remedies Act claims. Finally, the panel denied defendant’s
motion to certify the issues to the California Supreme Court
both on the merits and because of the circumstances attendant
to its filing (where defendant only requested certification for
the first time after oral argument).
Judge Wardlaw concurred in the majority opinion, except
that she concurred only as to the result in Part III, which
denied Kohl’s request to certify the state law standing
requirements for review by the California Supreme Court.
Judge Wardlaw would simply deny the request as untimely.

PAUL ISAACSON V. TOM HORNE - The panel reversed the district court’s order denying
declaratorya nd injunctive relief to plaintiffs and held that the
Constitution does not permit the Arizona legislature to
prohibit abortion beginning at twentyweeks gestation, before
the fetus is viable.
The panel held that under controlling Supreme Court
precedent, Arizona may not deprive a woman of the choice to
terminate her pregnancy at any point prior to viability. The
panel held that Arizona House Bill 2036, enacted in April
2012, effects such a deprivation by prohibiting abortion from
twenty weeks gestational age through fetal viability. The
panel held that the twenty-week law is therefore
unconstitutional under an unbroken stream of Supreme Court
authority, beginning with Roe v. Wade, 410 U.S. 113 (1973),
and ending with Gonzales v. Carhart, 550 U.S. 124 (2007). 
Concurring, Judge Kleinfeld stated that the current state
of the law compelled him to concur, and that what controls
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Tenth Circuit:

United States v. Baker

Enterprise v. Warrick

Eleventh Circuit:

John Ferguson v. Secretary, Florida Department of Corrections

Pedro Machado Alturo, et al v. US Attorney General

DC Circuit:

Gregory English v. DC

Judicial Watch, Inc. v. Department of Defense

Deutsche Bank National Trust v. FDIC

Federal Circuit:

DOUGLAS DYNAMICS v. BUYERS PRODUCTS COMPANY

TELIERS DE LA HAUTE-GARONNE v. BROETJE AUTOMATION USA INC.

Ran a bit short of time today.  Tomorrow's will be either later in the evening or posted Thursday.  Still facing equipment troubles.  New Macbook Pros can be sent to the author, Poste Restante, Gotham.  Onward.

-MB

Short Form: Monday

Rolling circa 2:30PM, and the eastern half of the Republic has nothing posted yet -- we'll backtrack Circuits 1-5 tomorrow, in case something comes over the transom later.

Sixth Circuit:

County of Oakland v. Federal Housing Finance Agency  -- Federal agency's statutory exemption from taxes includes state and local land transfer taxes.

Seventh Circuit:

USA v.   Collet Williams -- Since police omitted favorable evidence as well as unfavorable evidence from the affidavit in support of the warrant, no intent to mislead.

Victor Sirbu v.   Eric Holder, Jr. -- Immigration - the showing as to fear of persecution is whether the petitioner establishes the facts, not whether the facts ineluctably compel the finding.

USA v.   John Bloch, III -- Drunken demand that the officer return the confiscated weapon can suffice for proof of possession.

Peoples National Bank v.   Banterra Bank -- A cross-collateralization clause insufficient to impart record notice might still impart inquiry notice.

USA v.   Jamel Brown -- Statements in sentencing colloquy sufficiently indicated judge's position on disputed aspects of PSR ; sufficent evidence for endangerment enhancement.

Leroy Johnson v.   Merrill Lynch, Pierce, Fenner -- ERISA Administrator/Fiduciary cannot file suit for disbursement against bank holding the assets, as the assets are frozen due to a state court order - as the injury is not traceable to the defendant, there is no Article III standing.

Eighth Circuit (From site):

121754P.pdf   05/20/2013  United States  v.  Steven Sullivan
   U.S. Court of Appeals Case No:  12-1754
   U.S. District Court for the District of Nebraska - Lincoln    
   [PUBLISHED] [Bye, Author, with Wollman and Benton, Circuit Judges]
   Criminal case - Criminal case. Evidence was sufficient to support
   defendant's conviction for possession of a controlled substance analogue
   with intent to distribute.
  
122600P.pdf   05/20/2013  Sandy Lake Band  v.  United States
   U.S. Court of Appeals Case No:  12-2600
   U.S. District Court for the District of Minnesota - Minneapolis    
   [PUBLISHED] [Wollman, Author, with Colloton, Circuit Judge, and
   Holmes, District Judge]
   Civil case - Indian law. Because the district court had adjudicated the
   issue of subject matter jurisdiction in the Sandy Lake Band's previous
   suit, and Sandy Lake did not appeal from that decision or exhaust its
   administrative remedies, the court is bound by the district court's original
   determination that it lacked subject matter jurisdiction; the district court's
   dismissal order is affirmed, but modified to be without prejudice.
  
123315P.pdf   05/20/2013  Spirtas Company  v.  Nautilus Insurance Company
   U.S. Court of Appeals Case No:  12-3315
   U.S. District Court for the Eastern District of Missouri - St. Louis    
   [PUBLISHED] [Benton, Author, with Riley, Chief Judge, and Bye,
   Circuit Judge]
   Civil case - Insurance. The district court did not err in concluding
   that three exclusions in the policy in question precluded coverage.

Ninth Circuit:

AMRISH RAJAGOPALAN V. NOTEWORLD, LLC -- As there was no intent to benefit the third party at the time of the contract's creation, third party cannot invoke arbitration clause.

CITY OF GLENDALE V. USA -- Agency erred in holding that the questioned term had a plain meaning - no deference is therefore due.  Agency is, however, free to affirm its decision on remand, as that would be an exercise of delegated authority.  Congress had sufficient power to pass statute under Indian Commerce Clause. Dissent: Federalism TKO's Chevron deference; there is a sufficiently clear statement.

Federal Circuit:

YANGZHOU BESTPAK GIFTS v. US   Administrative / Antidumping

DEY, L.P. v. SUNOVION PHARMACEUTICALS, INC. -- IP/Patent

AVENTIS PHARMACEUTICALS v. AMINO CHEMICALS LTD. [OPINION] -- IP/Patent

ALEXSAM, INC. v. IDT CORPORATION  -- IP / Patent

-MB

Short Form - Friday

Third Circuit:

Eleanor Abraham v. St Croix Renaissance -- Mass tort not removable under CAFA, as the operation of the plant that allegedly caused the harm was a single 'event or occurrence,' thereby qualifying for a statutory exception to removability under the statute.

George Huff v. Commissioner of IRS -- Sovereign immunity results in the Tax court being the only venue for a claim against the IRS; no mitigation/tolling available to claimant on refund.

Sixth Circuit:

USA v. Cornelius Blewett  -- The old crack/cocaine sentencing disparity was a violation of Equal Protection, and continued application/failure to remedy violates the statutory scheme as well.  Dissent:  Rather large step to take on an unbriefed issue.  [Must-read.]

Seventh Circuit:

Candace Harbaugh v.   Board of Education  -- No Due Process claim on termination, as the year spent substitute-teaching doesn't count towards the probationary period required for vesting under the statute.

Anthony Navarro v.   Langdon Neal -- Election law - Claim that lapsed for 10 months not barred by laches, as the Board can't prove that the delay harmed its ability to conduct future elections;  Preventing voter confusion justifies reasonable and nondiscriminatory voter access laws.

Eighth Circuit:

United States  v.  Aaron Polk -- Crim - sufficient evidence for conspiracy; no discovery violation where deft got the relevant information a week beforehand; Cross appropriately limited; denial of conspiracy element appropriately disqualified deft from safety-valve.

Todd Hallquist  v.  SunTrust Mortgage, Inc. -- Title transferred at the moment that the bid was accepted at the foreclosure sale - challenge to subsequent transfer of deed is therefore irrelevant; no breach of fiduciary duty.

United States  v.  Curtis Grandon -- Sentencing - no procedural/substantive error in court's upward departure based on prior alleged bad acts.

Ninth Circuit:

MANUEL OLIVAS-MOTTA V. ERIC HOLDER, JR. -- Immigration - No deference to AG on the definition of "crime of moral turpitude" for immigration removal purposes, as the meaning is clear and can be determined in each case by consulting the record of conviction.  Concurrence: No need to rule on deference, just apply modified-categorical, plus a little more.

CENTER FOR FOOD SAFETY V. THOMAS VILSACK -- As Agriculture Dept. agency is working under 1950's-era organic statute, GMO seeds fall outside of a reasonable construction of its regulatory authority.

DC Circuit:

USA v. Joseph Laslie -- As deft both stipulated to the sentencing enhancement and didn't subsequently challenge it, the appeal was waived.

Vernard Evans v. Kathleen Sebelius -- Reversal of summary judgment on Title VII discrimination claim & C in J.


Rolling the list earlier than usual, so this might not be all and everything.  The Fourth is still on yesterday's list, for one.  Caveat lector, as always.

-MB

Short Form: Thursday

Second Circuit:

Rosario-Mijangos v. Holder -- Immigration/ Administrative.  Substantial evidence for IJ's finding that the paperwork was in order and represented a valid waiver.  Voluntary return to foreign country after waiving hearing is sufficient process to hold that subsequent absence breaks constant physical presence requirement. 

United States v. Wilson -- Crack/cocaine sentencing adjustment.  As it is not a true re-sentencing, court hearing the motion can properly consider behavior occurring prior to the original sentencing. 

Third Circuit:

New Vista Nursing and Rehabili v. NLRB -- NLRB recess appointments -  The jurisdictional limitation on the Board is the statutory requirement that three members act - slightly different than DC Circuit's quorum analysis.  Presumption of regularity means that the order took effect when it was dated.  Definition of "recess not textually committed to the president / unmanageable.  Recess Clause is limited to inter-session appointments, as the purpose of the limitation on the power is to preserve the "advise and consent" role of the Senate (a role which would be bypassed with a broader reading) and the text refers to the "next" session.  Dissent: Pro forma sessions were not contemplated by founders, and they don't offer a chance for advice & consent.

Fourth Circuit:

Ronnie Dooley v. Hartford Accident & Indemnity --- Insurance coverage stacking - contract referencing stacking of policies is not made sufficiently ambiguous to allow the claim where it refers to a limit that is not supplied in the document, since the statute referred to in the document explicitly pairs IM/UIM liability with general liability defined elsewhere in policy.

Fifth Circuit:

Louisiana Generating, L.L.C., et al v. Illinois Un --- Environmental Insurance - Duty to defend where policy obligates insurer to defend against pollution harms where potential prospective/injunctive relief is pollution-derived.  No holding on whether indemnification against civil penalties is against NY public policy.

Cibolo Waste, Incorporated, et al v. City of San A --- Appellant does not have standing to raise a Dormant Commerce Clause claim against a facially nondiscriminatory statute unless it is engaged in interstate commerce. 

Sixth Circuit:

USA v. Sidney Brown   4A - sufficiently credible information from informant for warrant; no error in denialof Franks hearing, as the questionable information wasn't necessarily a dispositve element of sufficient probable cause; No miscarriage of justice (deft counsel didn't renew motion to acquit) in holding that gun under mattress on second floor of house was strategically placed to be of aid in drug transactions, as it was a small house.

Eighth Circuit:

United States  v.  Kurt Alexander - Crim/Drugs - Ban on using buyer/seller relationship as sole proof of conspiracy only refers to isolated transactions - large amounts and frequent transactions can prove the conspiracy.  No error in sentencing enhancements, (guns, leadership) within-guidelines sentence not substantively unreasonable.

Tenth Circuit:

Roosevelt-Hennix v. Prickett -- S1983 - Sufficient evidence for denial of qualified immunity where plaintitff's version of events is credible to a potential factfinder, clearly reveals actions in violation of rights.

DC Circuit:

In Re: Sealed Case  -- Denial of motion to return materials allegedly seized in excess of warrant is not sufficiently final and reviewable, as it is tied to the tactics of the pending case, and there is no clear independent need for the return of the documents.  Third-party (Perlman) motion to invoke privilege cannot be used to compel return of documents under 41(g).

Federal Circuit:

FORRESTER ENVIRONMENTAL v. WHEELABRATOR TECHNOLOGIES   Jurisdiction - No 'arising-under' jurisdiction under patent law where the alleged violation is overseas without any prospect of the product being imported.

NSK CORPORATION v. USITC -- Antidumping - substantial evidence that UK ball-bearings would skew the market.  Court of International Trade and subsequent reviewing courts should show deference to the US International Trade Commission.

Eleventh Circuit -- Miccosukee Tribe of Indians of Florida v. USA, et al.

Complaint sub-Iqbal in clarity, but can be sufficiently assessed for appellate review.

Easements outside of trial record cannot be basis for claim of improper regulatory action.

Corps cannot take tribal interests in land without Due Process.

Due Process claim dispositively marred by vagueness, ambiguity, citing of wrong Amendment.


Miccosukee Tribe of Indians of Florida v. USA, et al.

Ninth Circuit -- NICKLOS CIOLINO V. THEODORE FRANK

Under CAFA, court can't award lodestar fees for any portion of the recovery which is in the form of coupons to class members without first assessing the value of the coupons.

Dissent:  This provision of CAFA only applies to non-lodestar (percentage) fees.

NICKLOS CIOLINO V. THEODORE FRANK

Ninth Circuit -- VICTOR TAPIA MADRIGAL V. ERIC HOLDER, JR.

Immigration -- actions in foreign country should be assesed in their totality when assessing persecution.

Although being a former narcotics law enforcement officer doesn't qualify as a political belief, it does qualify as a social group.

VICTOR TAPIA MADRIGAL V. ERIC HOLDER, JR.

Ninth Circuit -- CAHTO TRIBE OF THE LAYTONVILLE V. AMY DUTSCHKE

No APA appeal possible to BIA on dis-enrollment from Indian tribe, as the tribal constitution only allows for  review of denial of membership.

CAHTO TRIBE OF THE LAYTONVILLE V. AMY DUTSCHKE

Seventh Circuit -- USA v. Ron Collins

Sufficient foundation for taped phone calls, as there was custody and control of the tapes after they arrived from the informant in Mexico.  Gaps in custody go to weight, not admissibility.

Law enforcement expert testimony at trial as to the argot on the tapes did not impermissibly go to intent.

Manager/supervisor sentencing bump upheld, as there were minions involved.

USA v.   Ron Collins

Fifth Circuit -- Reynaldo Ramirez v. Jim Wells County, Texas

Qualified immunity for policemen on false arrest claim, as arrest (mit taser) was justified due to the resisting of arrest (pulling arm out of policemen's grasp).

Excessive force claim survives, as the plaintiff apparently didn't resist after the arm-pull and before being tasered while lying on the ground, handcuffed.

Dissent: The policeman might have thought that the plaintiff was planning to resist arrest at some point in the future.

Reynaldo Ramirez v. Jim Wells County, Texas

Fifth Circuit -- Wellogix, Inc. v. BP America, Inc.

Violation of trade secret finding upheld.  Court hints that after PF case is established for the existence of the secret, burden is on the deft to prove that prior public patents were sufficient prior disclosure.

Expert was sufficiently qualified as general computer expert to testify to existence of the trade secret -- no experience needed in the specific industry.

Documents properly allowed, despite possibility that they led to improper basis for verdict.

No Due Process violation in lack of remitteur for punitive damages, as they were under the compensatory damages.

Wellogix, Inc. v. BP America, Inc.

Fourth Circuit -- Ohio Valley Environmental Coalition v. US Army Corps of Engineers

Agency took a sufficiently hard look.

Concurrence: Reversing substantive decisions on hard look review encourages agency opacity.

Ohio Valley Environmental Coalition v. US Army Corps of Engineers

Fourth Circuit -- Jerome Williams v. Jon Ozmint

S1983 -- qualified immunity to prison officials, as there is no constitutional right to inmate visitation.

Not exempt from mootness considerations as capable of repetition & evading review as further invocation of the policy can only happen from inmate misconduct.

Jerome Williams v. Jon Ozmint

Third Circuit -- Robert Lassiter v. City of Philadelphia

No error in trial court raising statute of limitations defense sua sponte in early trial management proceeding and allowing deft to amend pleading.

Robert Lassiter v. City of Philadelphia

Second Circuit -- United States v. Rodriguez

Within-guidelines sentence held substantively reasonable -- deft had argued that it should have run concurrently or partially concurrently with state term.

United States v. Rodriguez

Second Circuit -- Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of

Brief per curiam opinion based on answers to questions certified to New York.  Relevant answer: turnover orders can't be directed to parent companies, as the relevant statute discusses possession of the asset, not control of the asset.

Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of

Second Circuit -- Ransmeier v. UAL Corporation, et al.

Double costs sanction against attorney and client for Motion for Recusal held to be antisemitic in character.  Client sanctioned as well, given experience in litigation and close work on the brief.

Ransmeier v. UAL Corporation, et al.

Short Form: Tuesday

First Circuit:

One and Ken Valley Housing v. ME State Housing Authority  -- Federal ingredient jurisdiction; state public housing authority had sufficient authority to determine variance between assisted and unassisted housing rates; simple agency calculation is sufficient deliberative process.

Second Circuit:

Hofmann v. Sender -- Hague Convention - the intent of the family to relocate to New York was conditioned upon the entire family relocating to New York; Children have not become acclimatized to NY to a degree warranting that they should remain here.

United States of America v. City of New York -- Firefighter discrimination - In responding to a pattern-or-practice claim, employer can use any evidence that tends to rebut the inference, including intent-based evidence; Decisions on qualified immunity should center on whether the willful actions of the official impacted the right, not whether their intent was demonstrably wrong; given size of city, specific evidence needed to produce genuine issue of material fact as to the mayor's role; Concur/Dissent: To rebut disparate impact claim, deft should minimize the proof, not present nondiscriminatory rationale.

SEC v. Bankosky -- SEC ban upheld.  Traditional six-factor test may be supplemented by new 9-factor test.

Fifth Circuit:

USA v. Servando Alvarado-Casas -- No clear error in acceptance of guilty plea, flawed sentencing colloquy did not influence decision to plead guilty.

Sixth Circuit:

Uwe Romeike v. Eric Holder, Jr.  -- German harassment of home-schoolers insufficient to bar deportation.

USA v. Sherry Washington  -- White collar - Money laundering, conspiracy.

Larry Crouch v. Honeywell International, Inc. 

Seventh Circuit:

Otto May, Jr. v.   Chrysler Group LLC

Ninth Circuit:

FOX INSURANCE COMPANY, INC. V. CENTERS FOR MEDICARE AND MEDIC

Tenth Circuit:

Koessel v. Sublette County Sheriff's Dept

In re: Weathersby v. 

Eleventh Circuit:

Bruce Rich v. Secretary, Florida Department of Corrections, et al.

DC Circuit:

Blue Ridge Env. Defense League v. Nuclear Regulatory Commission -- Administrative law - agency properly declined to issue EIS, given unsupported nature of complaint; intervention in hearing process properly denied.

Short on time today.  Mea maxima culpa.  Better tomorrow.

MB

Federal Circuit -- MOTIVA, LLC v. ITC [OPINION]

Absent prospect of licensing, litigation costs spent in protecting a patent don't themselves count towards a domestic market for the licensing.

MOTIVA, LLC v. ITC 

Tenth Circuit -- Brecek & Young Advisor, Inc. v. Lloyds of London Syndicate 200

Where insurance policy unambiguously considers actions related where they have any factual elements in common, two arbitrations referencing the same parties during the same time period are interrelated, even where the substance of the first arbitration would not put the plaintiff on notice of the charges in the second.

Under New York law, the defense that a matter is not outside coverage, as the insurer has heretofore defended claims based on it, is estoppel, not waiver.

In an estoppel claim based on the insurer's conduct of a second matter, the court should address the degree of detrimental reliance incurred by the first insured, so long as any detrimental reliance was possible.  [We're stating this one a bit freely.  Entertainment purposes only.  Eds.]

Brecek & Young Advisor, Inc. v. Lloyds of London Syndicate 200

Ninth Circuit -- RAFAEL GONZALEZ V. CITY OF ANAHEIM

Fatal shooting was not an exercise of excessive force / DP deprivation, as officers were justified in the use of physical force to that point in the encounter, and the decedent was attempting to drive off with an officer in the passenger seat.

Dissent: At 3 to 6 miles per hour.

RAFAEL GONZALEZ V. CITY OF ANAHEIM

Eighth Circuit -- United States v. Frank Martin

Where deft does not allege but/for causation of guilty plea, colloquy that doesn't mention statutory minimum triggered by ACCA is not plainly erroneous if the term for that count of the indictment was to run concurrently with the penalties imposed on the other counts.

United States  v.  Frank Martin

Sixth Circuit -- Platinum Sports Ltd v. Rick Snyder

Federal District Court stipulation agreement holding state statutes facially unconsitutional and enjoining enforcement means that subsequent challenge to the statutes lacks standing -- no injury.

(State lawmaker had been collecting signatures on petition asking for enforcement of the statute.)

Platinum Sports Ltd v. Rick Snyder 

Fourth Circuit -- Ali Karimi v. Eric Holder, Jr

Immigration -- Under either categorical or modified categorical review, state second-degree assault conviction was not for a crime of violence, as the grabbing of a hand is not, in itself, a violent act.

Dissent:  AG has moved for remand, and Scotus is pondering a relevant question.  Abstain. (Courteously.)

Ali Karimi v. Eric Holder, Jr

First Circuit -- PHL Variable Insurance Company v. P. Bowie 2008 Irrevocable

Under state law, a party is not required to return all consideration received when seeking rescission of contract -- court sitting in equity has power to fashion appropriate relief.

An action for rescission is not subject to the state election of remedies rule --  it is not an action on the contract, but rather an attempt to put the parties in the place they would have been absent the contract.

PHL Variable Insurance Company v. P. Bowie 2008 Irrevocable 

First Circuit -- US v. Zavala-Marti

Court cannot impose general sentence in excess of the statutory minimums for any of the charges in the indictment based on drug amounts in excess of the amounts charged in the indictment.

In sentencing, court cannot rely on information gained from ex parte meeting with probation department without giving the deft a chance to challenge the information.

US v. Zavala-Marti 

First Circuit -- US v. Candelaria-Silva

For sentencing purposes, personal ties to the leaders of a drug conspiracy is insufficient to establish culpability for the entire amount of drugs handled by the conspiracy.

US v. Candelaria-Silva 

2,500 or so

Sometime yesterday, we passed 2,500 posts.  (It's best to mark the milepost a bit inaccurately than not to mark it at all -- at least from a traveller's point of view.)

The objective of the blog remains the same as it was at launch -- a quick summary of and link to the day's published decisions from Circuit Courts of Appeal.  We're aware that some Circuits' web links are dynamically generated, and that they might not last more than a day or so, but if you click the subject tabs above, you can get a rough sampling of recent decisions on a given subject.  

As always, entertainment purposes only -- it is most emphatically not the purpose of this blog to say what the law is.

And we thank you for your support.

-MB

Federal Circuit -- CLS BANK INTERNATIONAL v. ALICE CORPORATION [OPINION]

CLS BANK INTERNATIONAL v. ALICE CORPORATION [OPINION]

Federal Circuit -- SANOFI-AVENTIS DEUTSCHLAND v. GENENTECH, INC. [OPINION]

SANOFI-AVENTIS DEUTSCHLAND v. GENENTECH, INC. [OPINION]

DC Circuit -- So. California Edison Company v. FERC

So. California Edison Company v. FERC

Ninth Circuit -- PERRY MCCULLOUGH V. CONRAD GRABER

Habeas challenge arguing that petitioner should have been included in presently defunct pilot alternative sentence program is properly dismissed as moot where court can deny eligibility on the merits using plain language of statute.

PERRY MCCULLOUGH V. CONRAD GRABER

Eighth Circuit -- Ron Meyers v. Tom Roy

State offender registration statute cannot be challenged under S1983, as the deft had the opportunity to litigate the underlying claim on direct appeal.

 Ron Meyers  v.  Tom Roy

Eighth Circuit -- Jane Doe I v. Jeremiah J. Nixon

Winning a preliminary injunction does not suffice to get fees under S1988 even where subsequent adverse holdings were the result of abstention.

Voluntary cessation of threat of prosecution resulting in a finding that the claim was moot is not a victory that would shift costs under S1988.

District court correctly held that fears of future prosecution were speculative.

Jane Doe I  v.  Jeremiah J. Nixon

Seventh Circuit -- Royce Brown v. John F. Caraway

Habeas challenge to fundamentally defective sentencing enhancement can be made by using the "actual innocence" provision of the Habeas statute.  Faulty 'career offender' bump qualifies.

Circuit split flagged.

Recklessness' inclusion in arson statute makes it ineligible for career offender enhancement.  (Both enumerated and resuidual.)

Futility of making the collateral challenge under the present theory during initial Habeas review excuses waiver.

Royce Brown v.   John F. Caraway

Seventh Circuit -- USA v. Michael Roux

Judge appropriately limited evidence as to prior bad acts to motive and identity.

Uncharged nature of prior bad acts not dispositive.

Arrest photos admissible for purposes of identifying deft in crime photos.

Prosc reference to jail telephone calls not grounds for mistrial.

Cross of deft did not implicate right to remain silent.

USA v.   Michael Roux

Fourth Circuit -- L.S. v. Pamela Shipman

Where the Secretary has decided to comply with an injunction restoring Medicaid services, state agency has no standing to challenge the injunction.

Litigation decisions can constitute final agency action for purposes of review when tantamount to a specific policy choice.

Would be an advisory opinion anyway.

L.S. v. Pamela Shipman

Fourth Circuit -- Timothy Branigan v. Bryan Davis

As they are unsecured interests, value-less liens can be stripped off in Chapter 20 proceedings even absent possibility of final discharge.  Courts must first value the interest.

Dissent: Liens with no present value therefore worse off than unsecured interests.

Timothy Branigan v. Bryan Davis

Sixth Circuit -- Frances Spurlock v. David Fox

School bussing -- Even where policymakers considered racial data, classification of students by location of home does not amount to classification by race.

Where the plan has indicia of legitimate intent, there is no segregative intent unless there is an overwhelming or suspicious concentration that leaves no room for inference to the contrary.

School under-utilization suffices for rational basis.

Frances Spurlock v. David Fox 

Sixth Circuit -- USA v. Tyree Washington

Difference in skin tone did not make photo lineup impermissibly suggestive.

Sufficient evidence for intent element of carjacking statute where touching victim and brandishing weapon are both established.  Where one not established, finder of fact can find general threat suffices.

Lenity counsels that the ordering of convictions in a simultaneous verdict should be arranged to favor the defendant when calculating total length of sentence.


 USA v. Tyree Washington 

Sixth Circuit -- Lee Gardner v. Heartland Industrial Partners

ERISA does not preempt state-law tortious interference claim.

Lee Gardner v. Heartland Industrial Partners 

Sixth Circuit -- Donnetta Smith v. Stoneburner

Ambiguity as to what the suspect said at the door of the house before police entered is the epitome of a triable fact.

Where narratives are disparate, it's not therefore a close call that should be granted S1983 immunity under lenity, but rather an issue for the trial.

No immunity for warrantless arrest made by reaching across the threshold of the door.

Arrest quite possibly involved excessive force.

Bad faith is a triable question.

 Donnetta Smith v. Stoneburner 

Sixth Circuit -- USA v. Kenneth Kennedy

Mail and wire fraud statutes cover both fraudulent loans and fraudulent investments.

Subjective good faith in scheme's fraudulent premise does not exculpate.

Deft had no right under FRCrimP to know vote-count/holdout revealed in jury note.

No error in denial of juror interview.

For purposes of sentencing enhancements, specific knowledge of funds acquired by scheme is not necessary.  Merely that they were reasonably forseeable outcomes of the scheme.

Sophistication & Obstruction sentencing bumps upheld.

USA v. Kenneth Kennedy 

Second Circuit -- RLI Insurance Co. v. JDJ Marine, Inc.

No extension of time to file brief absent (new) extraordinary circumstances where parties selected return date for answer, and prior extension was given, even though parties consented to the extension.

No reinstatement of case where filing deadline has passed even though court denied motion for extension of time to file after the deadline to file.

(Circuit-specific rules, not so much FRCP.)

RLI Insurance Co. v. JDJ Marine, Inc.

Short Form - Rest of Thursday

Short on time today, so...

Sixth:

Ivy Bailey v. Edward Callaghan  -- No First Amendment / Equal protection (Rational Basis) claim against school district's unwillingness to withhold union dues.  Dissent.

Les Kepley v. Gerald Lanz -- Since shareholders of closely held corporation had to sell at a loss, they had distinct harms as opposed to harms derived from harms to the corporation.  Decision under Delaware law, as Kentucky courts would likely apply it.

Seventh:

Qiu Chen v.   Eric Holder, Jr.  -- Posner - immigration/forced sterilization.

Eighth: (From site)

121555P.pdf   05/09/2013  Thomas P. Cawley  v.  Frank Celeste
   U.S. Court of Appeals Case No:  12-1555
   Appeal from the Bankruptcy Appellate Panel for the Eighth Circuit    
   [PUBLISHED] [Colloton, Author, with Riley, Chief Judge, and
   Gruender, Circuit Judge]
   Civil case - Bankruptcy. All of the elements of North Dakota's res
   judicata standard were met in this case, and the state court judgment was
   entitled to preclusive effect under the full faith and credit statute - 28
   U.S.C. Sec. 1738.

122334P.pdf   05/09/2013  Affordable Communities of MO  v.  Federal Nat'l. Mortgage Assoc.
   U.S. Court of Appeals Case No:  12-2334
   U.S. District Court for the Eastern District of Missouri - St. Louis    
   [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
   Civil case - Contracts. The district court did not err in finding plaintiff
   had failed to plead facts establishing that defendant EFA was Fannie
   Mae's agent in connection with a loan plaintiff obtained; viewing the
   contract language in the context of the entire written document and
   considering the likely intent of the parties, the court concludes the
   agreement was ambiguous as to whether the phrase "condemnation sale"
   included a sale in lieu of condemnation, and the district court erred in
   dismissing plaintiff's claim that Fannie Mae breached the contract;
   district court did not err in dismissing plaintiff's breach of implied
   covenant of good faith and fair dealing claim or its claim for unjust
   enrichment.

Ninth:

USA V. IRVIN SANDOVAL-ORELLANA  -- California s-xual penetration statute is a crime of violence for immigration purposes.

RIGHTHAVEN LLC V. WAYNE HOEHN -- Copyright/ Standing - assignment of right to sue without assignment of the underlying rights does not give standing.

MARTIK SARGSYAN V. ERIC H. HOLDER JR. -- Cryptic denial of fees.

Federal:

GENERAL DYNAMICS CORPORATION v. LEON PANETTA, SECRETARY OF DEF [OPINION]

Fifth Circuit -- Mary Ainsworth v. Cargotec USA, Incorporated

Reasonable expectation of substantial sales in a jurisdiction suffices for personal jurisdiction under "stream of commerce" theory.

Mary Ainsworth v. Cargotec USA, Incorporated

Fourth Circuit -- US v. Nicole Grant

Anticipated prospective tax refunds are not sufficient basis for revision of restitution order where the circumstances were in evidence at sentencing and no new findings are made as to the impact on the deft's ability to pay.

US v. Nicole Grant 

Third Circuit -- National Amusements Inc v. Borough of Palmyra

No pre-closing notification was needed under procedural Due Process to close the market, given the discovery of unexploded munitions.

Closing market did not require compensation under Takings Clause, as it was a core public safety function.

Even given a low probability of harm from the explosives, the standard of review under state statute's arbitrary and capricious analysis is whether a reasonable finder of fact could conclude that closure was necessary.

Although the market eventually won right to reopen, since S1983 claims were denied on the merits, no award of interim fees.

National Amusements Inc v. Borough of Palmyra

Second Circuit -- United States v. Steele

When resentencing (here for crack/cocaine), court should not apply any downward departures applied in previous sentencing -- with the exception of the substantial assistance downward departure.

United States v. Steele

Second Circuit -- United States v. Figueroa

Where prisoner stipulates to conduct sanctions incurred during time of incarceration, District Court can properly deny crack/cocaine resentencing for otherwise eligible deft.

United States v. Figueroa

Eighth Circuit -- Michele Hathorn v. Corwin Petty

Bankruptcy -- filing of challenge was timely.

Michele Hathorn  v.  Corwin Petty

Eighth Circuit -- United States v. Alireza Bakhtiari

Sentencing -- Within-guidelines sentence affirmed.

United States  v.  Alireza Bakhtiari

Eighth Circuit -- United States v. John Arrocha

Decision to tow vehicle was permissible, and evidence was therefore admissible as fruits of inventory search.

United States  v.  John Arrocha

Eighth Circuit -- Miles LaCross v. City of Duluth

S1983 suit after tasering of suspect - at the time of offense, officer could reasonably have believed that a tasering that inflicted minimal injury (as distinct from not employing excessive force) was not unconstitutional.

Taser not sui generis for excessive force claims.  Same analysis as other weapons.

Miles LaCross  v.  City of Duluth

Eighth Circuit -- Primitivo Alavez-Hernandez v. Eric H. Holder, Jr.

Immigration -- Mexico - past incidents in village against evangelicals do not justify withholding of removal, as relocation to city is possible.

Primitivo Alavez-Hernandez  v.  Eric H. Holder, Jr.

Eighth Circuit -- Luisa Chavez-Lavagnino v. Motivation Education Training

Complete diversity must exist at the time of removal to federal court -- subsequent move by party doesn't cure.

 Luisa Chavez-Lavagnino  v.  Motivation Education Training

Federal Circuit -- USHIP INTELLECTUAL PROPERTIES v. US

Patent -- validation of parcel receipt.

USHIP INTELLECTUAL PROPERTIES v. US 

Federal Circuit -- DECKERS OUTDOOR CORPORATION v. US

As a matter of law, slip-on shoes can be either shoes or boots.  Battle of dictionary definitions.

Dissent: Nope.  Legislative intent.

DECKERS OUTDOOR CORPORATION v. US 

Eleventh Circuit -- Franklin Owusu-Ansah v. The Coca-Cola Company

To have standing under the ADA's provision barring examination or inquiry into medical condition, plaintiff need not demonstrate that they have a disability protected under the ADA.

Employer's inquiry in this case was reasonable, given employee's statements.

Franklin Owusu-Ansah v. The Coca-Cola Company