Wednesday, July 06, 2011

Published Circuit Opinions - July 6

Second Circuit:

Canadian veterinarian entitled to fees as "prevailing party" in suit arguing anti-Canadianite discrimination even though he subsequently Americanized himself.

 Requiring gov't aid recipients to have an anti-prostitution policy is unconstitutional compelled speech, injunction upheld for likely success on merits.  Loooong dissent: Adequate alternative channels & no direct requirement for speech = vacate & remand.
Detention under Summers  incident to search of premises can be nearby but outside the premises (i.e. blocks away - the 8th &10th Circuits' bright line curb rule is wrong, wrong, wrong). 

First Circuit: 

45 in a residential zone is enough to get you a two-level sentencing bump for reckless endangerment, evidence of effective bossin' will get you the four-level bump for leading & organizing.

(Souter) Rehabilitation and treatment cannot justify a longer sentence at resentencing.

Third Circuit:

Social Security ALJ review - District Court's mistaken review under substantial error instead of de novo is harmless error.

Fourth Circuit:

We conclude that the Medicaid Act plainly authorizes CMS to disallow payments to a state when that state overpays a provider, regardless of whether the state has recovered from a provider or a third party—or, indeed, recovered from anyone at all. --  Board's decision not arbitrary & capricious.

 Election law - residency requirement for witnesses to petition signatures challenged.  (1) Third parties (those not the candidate) lack standing, as seeing another person on the ballot vs. being able to write them in is insufficient injury, (2) future redistricting doesn't make the candidate's claim moot.  Remand to determine if locals can be required to attest to the petition-signin'.

Severance pay is earned for bankruptcy prioritization purposes on the date of termination, not during the time of employment.

Fifth Circuit:

(From yesterday.) 
Under Texas law, a loss of consortium claim derives from a tort action- it cannot derive from a Title VII claim.

Sixth Circuit: 

Circuit knocks out various pro-se-sounding claims one by one.  (e.g. ineffective assistance, bad search, bad interrogation, retroactive application of more lenient sentencing law.)

Court has review power over Immigration Law Judge venue transfer decision - but no error here on slapdowns of motions for remand, venue transfer & challenge to witholding of deportation

"Association discrimination" claim under ADA denial under summary judgment upheld, as no reasonable inference of causation for employee's termination.

Habeus procedural challenges denied in death penalty case.  Thou shalt not kill.

Union's disciplinary action against member upheld against NLRA challenge, as the member was gathering information, not negotiating (and therefore not shielded from retribution by the Act.)

Seventh Circuit:

Former Gov's collateral attack on jury instructions for the mail fraud conviction denied as original jury could have convicted under the current caselaw (Skilling).
Chicago's ban on firing ranges implicates a core element of Second Amendment protections. Special concurrence: Especially when gun owners in the city are required to maintain proficiency on gun ranges.
Michael Brooks v. City of Aurora, I
Misbehavior during arrest TKO's a Section 1983 claim, and pepper spray was kosher at the time.

Sharon Bogan v. City of Chicago
Ultimate burden of proving lack of exigent circumstances in a warrantless search remains with plaintiff. 

Eighth Circuit

United States  v.  Roman Cavanaugh, Jr.
Prior tribal court misdemeanor convictions count towards habitual offender status.

Jim Rues  v.  Larry Denney
Attorney miscalculation can't toll habeus filing deadline, a new study isn't new news for the new court.
In re: Zurn Pex Plumbing
"Tailored" Daubert for two experts prior to class certification was appropriate, certification of 
not-yet-leaking plaintiffs was also appropriate.  Dissent: no and no.
Paula Kingman  v.  Dillards, Inc.
Damages for caused by falling rack at Dillard's upheld, depite evidence of prior injuries to plaintiff; 
1M consortium award reversed & remanded.  (Must have been some amazing consortium.)
Ninth Circuit:
Plaintiff: Hey, I want to intervene.  Court: You can't.  Plaintiff: Why?  Court: Case is finished, dude.
Dissent: Capable of repetition, yet evading review.
Tenth Circuit
ATK Launch Systems v. EPA
Clean Air Act challenge transferred to the DC Circuit.
Eleventh Circuit
USA v. Carmelina Vera Rojas 
Sua sponte, the Fair Sentencing Act held to apply to those not yet sentenced when the Act took effect.
The necessary inference is that the will of Congress was for the FSA to halt unfair sentencing practices immediately.
Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.