Wednesday, August 03, 2011

Published Circuit Opinons - August 3

Third Circuit:

Challenge to health care bill TKO'd for standing - no injury in fact, no imminent concrete injury.

Under New Jersey law, it is possible to seek contractual reformation on the basis of mutual mistake against a party who was not involved in the contract agreement - rationale is discerning intent of contracting parties.  Strong suggestion that court must balance equities of intervention.

INA post-departure ban on appeals conflicts with clear text of Act permitting appeals - Congress has spoken on the issue, and inquiry is at an end.  Circuit split on reasoning, not outcomes.

 District Court erred in setting aside conviction for transporting firearms in the course of dealing firearms without a license - substantial proof of ongoing sales for profit, signed forms evince knowlege of the law; Running guns inherently has a mens rea component of knowing that the guns will eventually be used for Bad Things; The rule of consistency for conspiracy prosecutions is no longer viable - jury has the prerogative to convict; No error in not instructing jury on affirmative defense of recognition of other states' licensing schemes.

Fifth Circuit:

No error in sentencing court not grouping multiple calls to same corporation together for Guidelines purposes - the primary target in each instance was different.

Sixth Circuit:gui

(Crim - homicide in a national forest)

Deft was malingering, not genuinely incompetent; 

New penalty phase to allow jurors to consider possible mitigaiton from the fact that the state in which the park is located has abolished the death penalty;  

Jury must find beyond a reasonable doubt that aggrivating factors outweigh mitigating factors - circuit split flagged; No error in lack of aggravating factors in indictment (added later); 

Given totality of disruptive behavior, no rerror in court not allowing deft to go pro se; 

When deft punched lawyer during trial, no error in court denying motion to withdraw, as the breakdown in communication was less than total;  

No error in denying mistrial after punch, as it would allow deft to unfairly profit from his actions; 

No error in excluding deft from in camera conferences - DP b/c he got better process & no error from violation of Rule 43 (deft must be present at trial)  - no harm no foul.

No Brady violation, in witholding report that proc. witness had violated ethical rules by making public comments, given overwhelming evidence of guilt.

No 5A/6A violation in judge shifting juror to "alternate" before dismissing her, as she had been dozing during trial.

No Confrontation Clause violation in allowiing videotaped testimony from ill witnesses where deft could cross at deposition.

Examination between guilt phase an penalty phase and (rebuttal?) testimony in penalty phase not untimely.

No error in gov't not disclusing unadjudicated ethics complaint against gov't doc.

Dictum that unequal seating of pro-death penalty jurors & anti-death penalty jurors can be problemeatic.

Federal death penalty Act not facially unconstitutional in refusing to use the Federal Rules of Evidence.

No error in consideration of unadjudicated acts at penalty phase.

No error in prosecutor asking jury to 'balance the ledger book' in closing.

No error in refusing a Remmer hearing where jury member tells newspaper "I knew he was off the wall before the trial."

No error in declining new trial or not finding Brady violation where witness was subjected to competency evaluaition in coeval state action.

No error in refusing to instruct jury on implicaitions of deft's courtroom behaviour & inability to wreak havok in future, given BOP regulations.

Concur/Dissent: Mitigation is properly limited under statute & governed by statutory, not constitutional rules. 

[Thou shalt not kill. -TMB]

Seventh Circuit:

S1981 Racial discrimination - no error in court refusing plaintiff leave to amend improperly drafted response, insufficient proof that the behavior was pervasive.

Eighth Circuit:

Appeals court (sua sponte) holds plaintiffs property insufficiently farmlike to qualify for mediation protections under FLMA; Insufficient particularity in (pro se) plaintiff's pleading of fraud.  Dissent: Degree of farmitude  should be argued by parties.

No recovery to plaintiff under IDEA;  Dissent: more deference due to ALJ finding.

No error in sentencing court revising upwards b/c of death that happened as a result of heroin sale; Restitution to buyer kosher, not barred as co-participant in criminal act.

When alleging that a summary judgment ignored key facts, cite facts in the record, and say why they're key.

Correspondence + phone calls + one meeting + a request for antifungal cream + a choice of law clause = personal jurisdiction.

Search of automobile did not violate Gant; Sale of a firearm was sufficient "use" of the firearm under the statute.
Replevin actions are not core actions of the Bankruptcy Court, as they do not originate from the Bankruptcy Code.

Ninth Circuit:

Crim - no Brady error in refusing to release document where same truth could be gotten from informaiton the deft already had; No perjury / knowing presentation of perjury; No error in exluding duress instruction; No error in Pinkerton instruciton for VICAR murder charge; No error in exlucsion of lesser-included-predicate-offense instruction.

Search of photographs was within TSA administrative search rationale, but later searches went beyond bounds.   Remand for probable cuse determination on arrest

Employee was not retroactively made eligible for FMLA leave upon signing of "last chance" agreement;  Where agreement does not specifically reference pre-termination rights, no waiver.

BOP regulation calculating proximity to release upheld as Congress has directly spoken to the issue at hand.

No presumption of irreparable harm on showing of copyright infringement.

An automatic stay imposed by 11 U.S.C. § 362(a) bars actions that would diminish the estate of a debtor in bankruptcy (the first debtor). Therefore, if another (also a debtor in bankruptcy) wants to equitably subordinate the creditor claims of the first debtor, it must seek relief from stay from the first debtor’s home bankruptcy court.

Tenth Circuit:

Law of the case does not bar a subsequent judge from revisiting discretionary (Daubert) rulings of predecessor - circuit split noted; Not allowing time to prepare after "unorthodox" rescheduling was an abuse of discretion;

(TMB is running really late, and has enterred "quick skim' mode.)

Eleventh Circuit:
No standing to challenge approved Clean Water Act consent decreee - redressibility mostly.  Dissent - cuts off review of consent decrees, 'fairly traceable' doesn't mean absolute causation, court has budrden to protect all affected parties before entering decree.

 DC Circuit:

NLRB findiing that employees' urging management to 'bring their boxing gloves' was a protcted figure of speech was supported by substantial evidence.

 Pretrial detention does not jibe with the Bail Reform Act - remand.

Gov't plan to cease feeding elk in naitonal park not arbitrary and capricious.

Federal Circuit:

Jurisductional questions for Court of Fed Claims under Miller Act - too dense for a quick parse.  Something about plaintiffs working all night and sleeping all day.

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.