Wednesday, July 13, 2011

Published Circuit Opinions - July 13

Second Circuit:

Where a federal sentence is adjusted downward to account for time in state custody, BOP decision to not credit state time served for good conduct is entitled to Skidmore deference.

Venue selection clause in formal agreement trumps compulsory arbitration clause in initial agreement where the first agreement is not mentioned in a merger clause.

First Circuit:

K case - personal jurisdiction affirmed; debate on terms; in a bench trial 'missing witness' presumption not in play where the side seeking the presumption doesn't call or depose them if available.

Loss of stock in deferred compensation plans due to forfeiture during vesting period upheld against state wage law claims.

Fourth Circuit:
Colonel deployed to Kuwait files 1983 action alleging interception of his emails by agents of his superior officers - District Court holds that internal military remedies must first be exhausted, colonel does so, comes back and files a 60(b)(6) to allow the late appeal based on the fact that the court had (perhaps wrongly) directed exhaustion.  Court declines to find extraordinary circumstance & boots case.  Circuit affirms.  Dissents: Court should have stayed the initial case, forgoing of the appeal militates for equitable waiver of deadline.

Sixth Circuit:

U.S. as a "statutory employer" is shielded by workmens comp safe-haven from tort claims by an employee of a maintenance company who was (totally) disabled while mowing the lawn of an army base.  (According to  Kentucky law, where the work was "regular and recurrent.")

Seventh Circuit:

Terminated employees must seek relief through the Indiana Claims Statute, not the Indiana Wage Statute - the latter is a direct suit, the former is an action pursued on their behalf by the state.

Entering into a forebearance agreement doesn't mean that the payments won't be considered late, it just means that they won't take your house so long as you keep making 'em.

Cumulative evidentiary errors are still insignificant when summed; Mid-course motion for an aiding & abetting instruction was fairly granted; retroactive application of Fair Sentencing Act of 2010 still not kosher in 7th Circuit.

Municipality can't collect on a utility bill from a smelting plant in bankruptcy, as neither the prepetition interest in land, tax collection or special tax collection exceptions to the automatic stay under Chapter 11 apply.

Illinois 'discharge of firearm' statute qualifies as a crime of violence for the career offender enhancement; sentencing according to skewed crack/powder guidelines was not an abuse of discretion.

Where one person has the right to exclusive use of a vehicle owned by another and the first person contracts with a company to perform work with the vehicle, the vehicle is leased, as the first party had effective agency to lease it.  An insurance provision denying recovery when the vehicle is leased therefore fairly bars the claim.

Eighth Circuit:

Permitting requirement for a mural which had "End eminent domain abuse" inside of a red circle with a line through it (which is kind of ambiguous, no?) is an impermissible content-based restriction of speech, remanded.

EEOC Administrative subpoena upheld, despite possible non-timeliness of suit & questions on evidentiary basis for same.
Guilty plea to securities fraud does not bar "no knowledge" claim at sentencing, given the possibility of mere misappropriation.

United States v. Frank Allen, Jr.

Claims of body language and inattentiveness sufficient to survive Batson challenge.

Ninth Circuit:

General Counsel of NLRB has authority to file 10(j) petition for injunction, despite statutory command that the Board must make the determination.  (This is in agreement with other Circuits).  In this case, the injunction was not an abuse of discretion.

Where goods are lost or damaged after being taken off a ship, but before delivery to the customer, the Harter Act (sea-based) regime does not apply; covenants not to sue are therefore enforceable.

Clean Water Act - some rivers found to be polluted by storm runoff, some found to not be so.  Under the intent of the statute, smaller municipalities are subject not to relaxed standards but to increasingly specific standards.

Tenth Circuit:

Assault on an officer of the juvenile justice system (which, categorically, can include mere offensive touching) counts as a violent crime for the ACCA enhancement residual clause - "otherwise involves conduct that presents a serious potential risk of injury to another"
An assault or battery committed by a person in the custody of the state on those responsible for containing him necessarily gives rise to the sort of “powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.” ( quoting US v. Williams)

Eleventh Circuit:

USA v. Chaplin's, Inc. 

Forfeiture order for the entire contents of a store upheld where proprietor was being paid with drug sale proceeds.  A jewelry shop.   


Cat Charter, LLC, et al vs Walter Schurtenberger, et al 

Lightly reasoned arbitration award upheld as reasonable.


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.