Thursday, July 21, 2011

Published Circuit Opinions - July 21

Second Circuit:

IIn a Title VII claim, back pay is not implicitly awarded in the compensatory damages; Earlier order describing state law claims as abandoned cannot me modified absent a change in the facts or the law - the law of the case binds; Where there some evidence that attorney rates shoudl be higher, but some courts in the district continue to award the lower number, the court's award of the lower value is not an abuse of discretion.

Third Circuit:

In determining domicile, absent clear indications of fabrication, a District Court cannot completely disregard an affidavit from a party claiming that she intends to return to another state soon - though self-serving, it might very well be true.

Fourth Circuit:

Qualified immunity for prison officials who performed invasive searches of prison employees based on an initial scanning by a machine capapble of detecting extraordinarily minute quantities of drugs.  Omninous dictum: For several reasons, nothing in the Supreme Court’s decisions or in our own indicates that a positive Ionscan result cannot generate reasonable suspicion.

Fifth Circuit:
Bankruptcy - Disclosure Statement can be consulted to determine if a post-confirmation debtor has standing; Where the Plan and Disclosure Statement specifically reserves the right to pursue actions against named pre-petition shareholders, the post-reorganization entity has standing to pursue the actions; Not disclosing the actions on Schedules does not estop the claim; Where the Confirmation Order retains the right of action, judicial approval of the Plan does not bar the action under res judicata.

Seventh Circuit:

Where trial court impanelling process means that the (mandatory) alternates-only peremptory strikes cannot be used, no reversable error where counsel agreed to the scheme;  Testimony as to deft's prior check-kiting scheme more probative than prejudicial; Suggesting in opening that witness may lie opens the door to taped admission by deft to (wired) witness;  Prior photo ID kosher, where deft could recall witness and cross during deft's case in chief; Remembering that someone once sent you a letter isn't enough evidence to support a 2A restoration claim; sentencing stuff.

Panoply of rulings in foreclosure case upheld, e.g. - Where issues and claims previously litigatged in state court are collateral to the federal claims, Rooker-Feldman does not bar; Summary Judgement appropriate under Celotex where claim is possible, but unsupported. You get the idea.

Summary judgmennt appropriate in Title VII suit - no reasonable jury would find that the animus was gender-based; BUT proximity in time of certain adverse actions to filing of the suit make possible retaliation an issue for the jury.

Poz:  Deft cannot challenge remand to state courts after (deft-opposed) removal to Federal Bankruptcy Court when the complaint, as amended, is determined by the Bankruptcy Court and reviewing Federal District Court to be not within jusridiction.  (Deft apparently failed to argue supplementary jurisdiction to bankruptcy court, making the punt a "disavowal," not a "relinquishment.")

Eighth Circuit:

Compliance with state tax law admissible where the charge is not complying with similar federal law; tax avoidance can be charged even without a prior assessment; not filing the appropriate form is a valid way of prosecuting avoidance; remand to determine if employees given bogus deductions actually prepared returns.

Emails, phone calls, and partial payment of prior claim in one state insufficient purposeful availment for specific personal jurisdiction;  insufficient agency over local corporation for general jurisdiction; claims too speculative for further discovery.

Keeping a gun in the same house where illegal drugs are kept = sentencing bump; If your wife drives you to the deal, you get the 'organizer, manager, or leader' bump; testimony about amount of drugs sold valid for sentencing, even where witness recieved sentencing consideration; sentencing reduction for copping to the deed not manadatory where subsequent statements contradict the guilty plea.

Ninth Circuit:

Immigration - Reversal given events described as "the epitome of ineffective assistance of counsel."

"Counterfieting" under the INA extends to trademark counterfieting. 

Tenth Circuit:

Death penalty deft - habeus granted, remand on claim of ineffective assistance of counsel, evidentiary hearing on competency denied.  Thou shalt not kill.

Federal Claims:

A prosecution history estoppel presumption obtains when disclosed information becomes the basis for an equivalence claim, and even a general indication of utility in the disclosure is enough to establish foreseability of the eventual equivalent use.  

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.