Friday, July 15, 2011

Published Circuit Opinions - July 15

Second Circuit:

SOL not tolled where "continuing course of conduct" is merely incidental contact with someone who has no plausible fiduciary duty; equitable estoppel not appropriate where PL merely hadn't yet realized that he needed to sue someone.

First Circuit:

See 7/8 - Errata.

Repeated repairs to a boat are not res ipsa proof of a valid claim against the shipyard for a breach of the implied warranty of workmanlike performance.

See 7/14 - Errata

Sixth Circuit:

SSA - When the ALJ doesn't give the treating physician's opinion controlling weight and doesn't provide a good reason for doing so, it's a-gonna get reversed.

Dwight Morrison v. Tennessee Consolidated Coal Co  
Presumption of disability that arises after proof of pneumonoconiosis is not rebutted by a negative x-ray or examinations in the medical history which did not diagnose the disease - affirmative disproof required.

Seventh Circuit:

Where a prisoner's civil rights suit might be barred by the rule of Heck (preventing such suits from being a collateral attack on judgments from prior disciplinary hearings), the pro se plaintiff must be informed of the rule and given a chance to make the claim without implicating the former judgment.

Eighth Circuit:

On review, triggering condition for an anticipatory search warrant need only plausibly have occurred for the search to be valid; Although deft was asleep when the pr0n arrived, he can be charged with constructive possession, given that deft knowingly set in motion the process by which it was delivered.

Ninth Circuit

Even where deft is not charged with conspiracy, prosc can introduce evidence as to structure and practice of illegal drug enterprises, especially where deft claims to be unknowing courier.

"Discretionary function" public policy exception to US tort liability does not bar suit where the government conduct is mandatory and specific in the guiding Manual (but general responsibility for safe operation in the Federal Facility Agreement would not suffice);  execution of safety standards is not a matter of public policy; fact-specific foreseeability in the context of breach does not demand proof that the plaintiff be demonstrably imperiled, but proof that the conduct was dangerous to people generally.

Eleventh Circuit:

Death penalty deft seeks access to evidence to test for DNA by a S1983 suit claiming violation of the right to petition for clemency (hoping to prove co-deft pulled the trigger), court holds no such right under substantive due process, but merits of procedural challenge to statutory scheme left open.  Thou shalt not kill.

DC Circuit:

Airline body scanners - no statutory or 4A violation, but agency violated APA notice & comment, as: (1) even where the public is not compelled to change their behavior, the increasingly intrusive scan is a substantive change, not a procedural one; (2) where the relevant statute does not specifically contemplate the security measures, the addition of the measures is not interperative; (3) even where the security measures are already in place, mandating their use is not a general statement of policy.

Where testimony at trial and at the suppression hearing differs as to which police officer asked deft for permission to search the car, trial court's determination that both accounts are credible is not subject to reversal as being exceedingly improbable;  sentencing court 'misunderstood its authority' under 3553(a).

Bivens plaintiff in a 1A/retaliatory prosecution case does not need to establish reasonable probable cause to survive pretrial summary judgment - the connection between the animus and the prosecution is a question of fact for the trial court.

2008 Amendments to FSIA do not abrogate the bar in the Algiers Accords on suits against Iran - insufficiently clear statement.

 ERISA suit for termination of policy - insurance company properly relied on its own physician as opposed to the claimant's; no right of appeal on voluntary re-examination of claim by insurer is not a violation of "full and fair review" requirement.

James Stephens v. US Airways Group, Inc.
Where a lump-sum payment is 45 days later than the annuity option, but the lump sum is calculated, the disparity is not actuarial nonequivalence, but a valid claim for interest; Where the delay does not correspond to administrative necessity, it is unreasonable; where unreasonable, the claim is not de minimis.
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.