Friday, July 08, 2011

Published Circuit Opinions - July 8


Leal Garcia v. Texas
Court declines to stop execution - issue is consular access & there's a bill pending to implement Avena. Held: potential jurisdiction insufficient; Breyer, Dissenting - Don't kill the dude.  (btw, thou shalt not kill)

Second Circuit:

Vincent v. Comm’r of Social Security
Lawyer insufficiently develops administrative record, judge cuts pay.  Twice.  Reversed and remanded elsewhere.
We hold that the failure of a claimant’s attorney to develop the administrative record on issues collateral to the disability determination does not constitute a “special circumstance” warranting a reduction in attorney’s fees.

First Circuit:

Mendez-Aponte v. Commonwealth of Puerto Rico 
Protocol chief at Puerto Rico's State Department fired after suggesting that the government invest in Iraqi dinars.  Dismissal (with sanctions to counsel) of his complaint for wrongful termination upheld.  In other news, Puerto Rico apparently has a State Department.

Valle-Arce v. Puerto Rico Ports Authority 
ADA retaliation case - judgment as matter of law after seven days of trial testimony reversed & remanded.

Sixth Circuit:

Pete Johnson v. Commissioner of Social Security 
SSA - Since the treating physician relied on objective medical evidence, his testimony should be controlling.

Douglas Stalley, et al v. Wellmont Health Systems, Inc
Douglas Stalley, et al v. Mountain States Health Alliance
The Medicare Secondary Payer Act is still not a qui tam statute.  Sanctions to counsel.
Federal-Mogul U.S. Asbestos v. Continental Casualty Company
Duty to defend - policy mandated defense where no other policy would cover, and on exhaustion of another policy through the same transaction/occurrence.  Here, exhaustion happened through other claims, so no duty.

Seventh Circuit:

John Logan v. Donna Wilkins
1983 suit alleging conspiracy to destroy plaintiff's trailer park.  Insufficient evidence of conspiracy to toll the statute of limitations.

Empress Casino Jolie v. Rod Blagoje  (Court)  (Poz)
During pendency of RICO claim, monies that casios are usually required to give to horse racing operations cannot be placed in a constructive trust, given the Tax Injunction Act (which protects state revenues against Federal meddling).  Posner: it's either a fine, a fee, or a tax - and it's a tax.  Wittgenstein is mentioned.  Dissent: It doesn't raise revenue for the state, so it can't be a tax.

Eighth Circuit:

United States  v.  Yahya Shakal
"Going through hell" in the Somali Civil war doesn't count for much in sentencing if you then take up work as a tax preparer who shortchanges the government over 2M.

United States  v.  Harold Drapeau, Jr.
Crim - no plain error on several factors.  Dissent - character evidence under 404(a)(2)/404(b) shouldn't have been excluded on the basis that deft was unaware of it.

United States  v.  Mark Maxwell
No error in jury being told that deft didn't pay taxes for several years when the charge is working as a fraudulent tax preparer.
Tom Brady  v.  National Football League 
NFL lockout injunction struck down as violation of Norris-Laguardia Act
We therefore reject a reading of the phrase that would limit the acts encompassed by the second clause of § 4(a) to refusing to remain in any relation of employment whatsoever, as with a permanent and complete work stoppage. The phrase is more naturally read to mean refusing to remain in any particular relation of employment, whether or not the refusal is complete and permanent.
Dissent: Intent of Act was to protect labor, not management.

Ninth Circuit:

Immigration - Burglary (3 cases of beer for $43)  isn't necessarily a crime of moral turpitude - walking into a building isn't a "substantial step" in furtherance. 

Immigration - No need for report to external agency to get "whistleblower" status - reporting to supervisor suffices.


Immigration - Trial court's participation in negotiating appeal waiver by deft TKO's the waiver, given the potential for coercion.

Tenth Circuit:

Ravenswood Investment Company v. Avalon Correctional Services

ClearOne Communications, Inc. v. Bowers (Donald)

Eleventh, DC & Federal TK  - TMB
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.