Monday, July 11, 2011

Published Circuit Opinons - July 11

Second Circuit:

Summary judgment against age disrimination plaintiff upheld - the severance agreement was sufficiently clear with repect to the waiver of ADEA claims.

First Cicuit:

Indian tribe uses health center funds to pay "ghost employees" & attempt to get permission for a "Racino" (combination racetrack and casino) on the ballot.  Largely upheld, one count TKO'd for scienter.  Harsh words for DA on duplictitous indictment (stealing from Peter and paying Paul are not necessarily two separate offenses), but not enough for plain error.

Evidence 101: (1) If a police report calls the deft black, and the deft is white, it's not a collateral issue.  (2) If there's a credible scenario for witness intimidation by law enforcement, it doesn't have to be mentioned on direct to be fair game for cross (3) If the deft's girlfriend is asked to express an opinion on whether police got the right guy, it's probably inadmissible.  Vacated and remanded.

Erratum to prior opinon. (Typo.)

Fourth Circuit:

Mary Quesenberry v. Volvo Trucks North America
CBA expires, union strikes, new agreement reached.  All's well, except that workers who were under the first CBA but not covered by the second saw their health plans go where the (underinsured) dolphins go.  District Court permanent injunction prohibiting management from monkeying with the health care terms imposed by the first CBA upheld.

Fifth Cicuit:

Title VII's 200k limit is per party, not per claim.  Dissent: Only on issues that can't be tried separately due to claim preclusion.

Sixth Circuit:

Going from 9 to 13 years on resentencing doesn't awaken the presumption of vindictiveness, as it was a different judge.  Notwithstanding the judge's "we'll see you back here probably in a couple of years" comment at resentencing.  In fairness, the crime was burglary and rape.  And the deft was there in the first place as a "heavy" to collect the rent. 
Seventh Circuit:

Section 1983 action against town for a mosquito-rife pond - dismissal upheld as there were no similarly situated non-minority residents.  Extensive commentary on briefing skills of plaintiff's counsel.  Remand to state court TKO'd, as there was no original action in state court.  

Insurer's coverage limit due to limitaiton in plan on "self reported symptoms" not upheld, as it wasn't in plan summary.  Recoupent of prior payouts due to retroactive SSA award upheld against statutory challenge.  Procedural error on cross appeal - it advoates change in court's reasoning, not final outcome.
Poz: ATS applies to Corporations.  (Not in this case, though, as there's no clear violation of international law in kids helping their folks make their daily quota on the rubber plantation.) 
The concept of customary international law is disquieting in two respects...

Forced repurchase of bad bonds not covered by "employee misconduct" bond, as the loss was an effect of the employee error, not directly inflicted by the employee.

Admission of evidence on gang involvement upheld, as the gang was discussed during the recorded "buy," and the information helps to explain the deft's actions.  "Cocaine base" expanded beyond crack in Circuit given Scotus holding in DePierre..

No jurisdiction to dismissal against A when co-deft B has been stayed due to bankruptcy, as it's not sufficiently final.

DQ of defense attorney doesn't violate Right to Counsel where prosecutor serves notice that defense attorney will be called to testify in inquiry on how an unemployed deft could give his lawyer 25k.  Reference in closing to deft's prior drug dealing allowed.

Eighth Circuit:

Julie Mahony  v.  Universal Pediatric Services
Public policy exception to dismissal at will doesn't 
apply, as the alleged fraud on the state hadn't happened yet. 

Outdoor Central, Inc.  v., Inc.
Given interconnected nature of case 54(b) designation of partial 
verdict as final struck down as premature adjudication. 
In re: Elizabeth Carlyle
Increased fees for death penalty deft (equivalent to biglaw brunch budget)
denied for lack of subject matter jurisdiction.  Win: deft's sentence was commuted.

Ninth Cicuit:

"Special relationship" and "state created danger" exceptions to general rule barring 14A state liability for third-party harms do not apply in public school context.

Crim - With clear prompting from Scotus, state dismissal of several (head-scratching) ineffective assistance of counsel claims upheld.

Crim - Sufficient evidence and Batson challenge ruling on strikes upheld on appeal.

Appeal on death penalty deft's competence allowed, despite appeals waiver - standby counsel given limited standing to pursue the otherwise unreviewable claim.  (btw: thou shalt not kill.)

Limiting fishing licenses isn't either a cognizable taking or a violation of Due Process.

 Kiddie porn - indirect victim impact statements permitted, but restitution to victims struck down as too attenuated.

Child pr0n - Ongoing monitoring of all deft's internet-connected computers upheld as a condition of supervised release.

Eleventh Circuit:

Melanie P. Ivy vs Ford Motor Company 
Vehicle design tort claim - If you're going to claim failure to warn, you need to read the directions.  Negligent design dismissal also uphleld.

Federal Circuit:

Winstar case - no standing here, as lack of privity.
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.