Wednesday, July 27, 2011

Published Circuit Opinions - July 27

Second Circuit:

 2255 Claim of ineffective assistance of counsel on a declined plea offer should receive hearing where there is a disparity between offer and ultimate sentence, petitioner says that he would have accepted it, and lack of evidence in the record as to factual circumstances of the offer.

First Circuit:

Deft who permits police to reach into his pocket for ID has consented to the search which finds drugs there; Given deft's past record, he likely felt sufficiently free to withhold consent for a search; Clear threats to officers' safety justified handcuffing of deft and a show of force - the Terry stop was therefore not a de facto arrest.

Where the deft has ample notice prior to the trial of the specific crime charged, there is no need to specify the crime in the indictment.

Where contractor has insurance A and is an "additional insured" on sub's insurance B, insurance B has a duty to defend as primary insurer, as sub is not an "additional insured" on insurance A.

Absent an explicit waiver of a state-law right in a CBA, a claim that a general management-rights provision impinges on a state-law right is preempted under S301, as investigation is required into customs and practices of the industry; No third-party standing to enforce provision in contract between two telecoms that all end users must consent to coverage (incl. GPS tracking).

Fourth Circuit:

School can take disciplinary action against student who sets up MySpace discussion board to ridicule another student, as the conduct interferes with the work and discipline of the school.  Interesting dictum:  it was foreseeable in this case that (petitioner's) conduct would reach the school via computers, smartphones, and other electronic devices.

Fifth Circuit:

Remand to state court reversed, as improper joinder (restoring diversity jurisdiction) was established at the time of removal to federal court, depite the fact that the joinder had not been timely challenged in the state proceeding prior to removal.

Sixth Circuit:

Where specific , legitimate discovery requests likely to establish the veracity of a prisoner's pro se claim are outstanding, a court cannot proceed to summary judgment against the claim.

Seventh Circuit:

Title VII retaliatory discharge claim should survive summary judgement where plaintiff has vociferously complained about past discrimination, and management has accused him of playing "the race card."

Immigration - a derivative beneficiary's age is frozen under CSPA at the time of denial of petition - subsequent to the primary applicant's cure of the petition, the derivative beneficiary remains eligible for reclassification.  Non-precedential  agency holding otherwise not entitled to Chevron  deference, and insufficiently persuasive under Skidmore.

Allegedly improper tasering in the course of an arrest does not take a 'nominal damages' instruction off the table, as the injury might have derived from a justifiable part of the taserin.'

District Court:  Out of state claimants have no standing under Illinois law for a class-action against an allegedly illicit biz - remand to state courts for adjudication of the claim. 
Easterbrook:  What you meant to say was that plaintiffs had standing, but as a matter of law could not successfully argue for the application of Illinois law under choice-of-law - dismissal with prejudice establishes this.  Class certification would be the first time that out-of-staters could be punted.  Vacated and remanded.

Where the funds go to general-use, a local flood-prevention assessment can be a potentially discriminatory railway tax under the 4-R Act; Rooker-Feldman doesn't apply where petitioner was not an actual party in prior state adjudication; Court has authority to issue injunction, even without demonstrable inequity in assessments and property values, given recent Scotus pronouncements on Act.

Eighth Circuit:

Where medical insurance policy requires an independent medical examination prior to grant of claim, the reasonableness of this requirement is not a matter for the jury.

No 4A interest offended by subpoena of electrical utility records; State law does not establish expectation of privacy for these records; Court is not required to grant hearing on warrant obtained by reporting an inaccurate electrical use.

Housing complex in a state municipality is not a 'dependent Indian community' for purposes of determining jurisdiction.

Ninth Circuit:

Where gov't has in open court solicited testimony confirming someone's status as a confidential informant, the cat cannot be put back into the tube of toothpaste - gov't can no longer refuse to confirm/deny their status.  Concurrence: Dangerous to allow AUSA's this much power - DOJ rulemaking would have been a better route.

Settlement negotiations can be considered when determining level of success for award of fees; judges can take judicial notice of prevailing hourly rates; Time spent briefing moot issues may be excluded from payment

No mandamus, as there is no controlling caselaw holding that a district court must make a decision on an exemption from arbitration before ordering the entire dispute to arbitration. 

Tenth Circuit:

Where buden of tax on extraction of oil and gas on Indian land falls largely outside the reservation, the tax is not preempted.  Dissent: District Court found that the tribe benefitted.

 District Court committed plain error in applying categorical approach to drug priors in calculating sentencing, but not reversible, as deft has burden to prove that categorical approach resulted in higher sentence than otherwise.  Circuit split flagged.

Sentencing challenge moot as petitioner is no longer in prison, and court cannot modify supervised release order.

Sufficient expert testimony to establish damage to cheese while stored in third-party warehouse;  Jury instruction did not expand the potential theories of negligence beyond the contractual term at issue; Subsequent remedial measures properly exluded, as they weren't probative of relevant facts; Setoff of recovery by amount recovered in another action required under double recovery bar - not necessarily because of parties' covenant or collateral source rule; Attorney fees properly included in offset.

Abuse of foster kid by other foster kid - battery exception to qualified immunity upheld; but no liability under S1983 as supervisory liability not established.

Colorado "Sexual Contact - No Consent" statute is a forcible sex offense for purposes of subsequent sentencing.

Fraudulently obtained funds forfeited when deft turned himself in and admitted the crime to an "otherwise unsuspecting" prosecutor do not reduce funds at issue for sentencing purposes; Fund management is 'position of trust' for sentencing purposes.

 Eleventh Circuit:

Voting machines are not "facilities" under the ADA.

Under sovereign immunity, state child-support enforcement agencies cannot be held in contempt for violating a federal bankruptcy court discharge order.
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.