Thursday, July 14, 2011

Published Circuit Opinions - July 14

Second Circuit:

Statutory remission provision (853i) does not bar equitable finding of a constructive trust.  (Except for general creditors.)

IFP and appointment of counsel denied for incarcerated petitioner with five out of three strikes.

First Circuit:

Prison regs limiting facial hair do not violate 1A, 14A & RLUIPA.  

For state claim removal under Section 301 of the Labor Management Relations Act, movant must establish that plaintiffs are covered by a CBA.

Third Circuit:

 Revision - see 7/12.

Fourth Circuit:

Shooting an escaping arrestee when you thought you were tasing him = solid S1983/4A claim.  Objectively unreasonable deprivation of a clear right.  Dissent - consider the officer's subjective situation.

Initial agreement called for arbitration in one city, later agreement superseded the prior agreement and dictated a second city.  An arbitration in the first city then ruled on the validity of the second agreement.  Held: it's a procedural question, not one of arbitrability, and therefore kosher. 

Fifth Circuit:

Revision - see 7/12.

Revision - see 7/7.

Sixth Circuit:

Bankruptcy - summary denial of fees to Chapter 11 counsel insufficiently reasoned; order of disgorgement of pre-petition retainer vacated for determination of whether or not a valid lien was created.

Seventh Circuit:
Waiver of appeals of "sentence" waives any appeal on the amount of restitution.

Immigration - petition for withholding of removal remanded.
Poz:  Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force. . .

Child pr0nography sentence upheld - challenges on diminished capacity & sentencing guidelines denied.

Margarita Reyes-Sanc v. Eric Holder
Immigration - voluntary departure in response to apprehension by INS creates a break in continuous physical presence.

Eighth Circuit:

New Stream Insurance, LLC v. PHL Variable Insurance
Third party which paid for insurance fraudulently acquired has no claim to a return of the unearned premia - actual fraud cancels any rescission. (Minn.)

United States v. Larry Cromwell, Jr.
Sentence kosher, no need to vary downward on crack/powder; deft was not required to prove he deserved guidelines range.

Bruce Rademacher v. HBE Corporation
 Dismissal of claim by reservist that he was fired for his service upheld - insufficient proof that service was the cause of termination.

Harvey Edwards v. City of Jonesboro
Dismissal to challenge of state court takings award upheld by claim preclusion, not Rooker-Feldman.

United States v. Nathaniel J. Smith
Detention during Terry stop upheld, Minnesota attempted third-degree burglary sufficiently violent for ACCA.

Sierra Club v. Southwestern Electric Power Co
Proximate property and propensity to outdoorsy-type activities get Article III injury-in-fact for a Clean Water Act Suit.  Possibility of harm justified the injunction.  Special concurrence: COA review was too de novo.

United States v. Joseph Paul Young
Crim - same words at different robberies = signature style and therefore admissible;  BUT the other robberies are not "relevant conduct" for determination of whether sentences should run concurrently; sentence does not violate the parsimony principle.

United States v. Lorenzo Brooks
Crim - Back staircase to multi-family dwelling is not within curtailage; police testimony repeating CI ID of deft as seller of guns and drugs allowed as not offered for the truth of the matter asserted.

United States v. Brian Dion Roach
Physician expert whose expertise on child abuse was gained from practice (not study) held to be qualified.

John S. Lovald v. Kathryn M. Tennyson
Bankruptcy - Trustee cannot sell home where only 31K would be realized, there's no proof that it would benefit claimants on the estate, and the owner of the other half interest contributed all of the equity and faced mental health issues if the property was sold.

Ninth Circuit:

Contrary to prior Circuit precedent, expunged minor state drug offenses can be grounds for deportation.  Prospective application of the rule only.  One partial dissent on prospectivity, one dissent on the merits.

Immigration - "Reason to believe" that petitioner is a drug trafficker is a call that is made based on all information available to the IJ at time of hearing.   (Maybe - this is a tough one to parse.)

Whether special education classes are indicated for a poorly performing student.  Dissent: No abuse of discretion.

Tenth Circuit:

McCarty v. Gilchrist
S1983 for malicious prosecution - sufficient cause existed; second malicious prosecution theory cannot be bootstrapped in on destruction of evidence claim; SOL clock ticks from the end of the court case, not the OCCA (?) mandate.

Garrett v. CookGrant of fees in baseless motion to remove to federal court upheld - even during bankruptcy, as the litigation was pre-petition, bu the motion post-petition.

Eleventh Circuit:

Sherodney Stewart v. USA
Pro se second 2255 motion held not to be "second or successive," as the basis for the motion (vacated convictions which were predicate to finding that movant was a career offender) did not exist at filing of earlier motion.

Federal Claims:


GAO OCI finding with reference to contract to build army hospital struck down.
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.