Friday, August 05, 2011



 Consistent with the plain meaning of the statute, we hold that the statute of limitations of the Vaccine Act begins to run on the calendar date of the occurrence of the first medically recognized symptom or manifestation of onset of the injury claimed by the petitioner.

While equitable tolling is held to now be kosher under the Act, this case does not justify.

DC Circuit -- Judicial Watch, Inc. v. Fed. Housing Finance Authority

Judicial Watch, Inc. v. Fed. Housing Finance Authority

FOIA request for Fannie Mae & Freddy Mac political contribution records denied, as the agency does not "control" the records.  

(i.e., they haven't looked at them)

DC Circuit -- Bally's Park Place, Inc. v. NLRB

Bally's Park Place, Inc. v. NLRB

Employer who attempts to rebut unfair dismissal presumption by arguing a "zero tolerance" policy of abuse on something (eg family leave time) must have a written policy.

DC Circuit -- Spectrum Health-Kent Community v. NLRB

Spectrum Health-Kent Community v. NLRB

Where the cover of the CBA has one effective date and the text states another, look to parol evidence to establish intent.

10(e) bars challenge to factual basis of Board's ruling, as it was not raised before the Board.

DC Circuit -- Janet Katz v. SEC

Janet Katz v. SEC

Where charging memorandum sufficiently references facts, deft is on notice to defend against any predicate charges.

Substantial evidence backs SEC findings.

DC Circuit -- Melvin Jones v. Michael Astrue

Melvin Jones v. Michael Astrue

Error in rejecting conclusions of treating physician.

Letter implicating credibility of physiscian = grounds for remand to agency.

Eleventh Circuit -- USA vs Larry P. Langford

USA vs Larry P. Langford 

Political corruption -

Sufficient evidence for honest services fraud &  using mails in furtherance of fraud.

No prejudice in admission of tax returns with extraordinary (legal) gambling winnings.

Banking records not hearsay.

No prejudice from hearsay testimony on denial of loan.

Giving clothes to charity = inadmissible character evidence.

No error on several small evidence calls.

No error in denying jury instruction requiring quid pro quo for bribery conviction.

No error in denying change of venue.

Tenth Circuit -- United States v. Prince

United States v. Prince

Striking jurors for views on marihuana legalization is kosher.

For conviction on giving false statements to a firearms dealers, no mens rea requirement that deft know that the statements will be written down and placed in files.

Sufficient is the evidence unto the conviction.

Tenth Circuit -- Healthtrio, Inc. v. Centennial River Corp

Healthtrio, Inc. v. Centennial River Corp

Bankruptcy - Order of Relief sufficiently final for appeal.

Where Bankruptcy judge transfers case but then issues an untimely order, that order is unreviewable by the second jurisdiction.   Remedy is to ask the second trail-level court to reevaluate the transfer order.



"Indian Country" statute insufficient for federal jurisdiction where two  companies are fighting state law claims involving lands held in trust.



The Airline Deregulation Act does not preempt a contract claim based on doctrine of good faith and fair dealing, as the latter does not refer to prices, routes & services. 

Circuit split signalled in special concurrence.

Ninth Circuit -- USA V. STINSON


VICAR is a continuing offense for purposes of jurisdiction.

No error in refusing to sever where court told jury that it really, really had to try to keep things separate.

No error in proceeding with a death-penalty qualified jury where proscs drop the capital charge.

Batson challenges TKO'd for court discretion & no harm no foul.

No Brady violation in sealed interviews of other prisoners.

No error in denying outrageous gov't conduct motions for threatening witnesses with death penalty and solitary confinement.

Older habeus order not relevant.

Vouching testimony was ultimately harmless.

Prosecutor misconduct in posing hypothetical statements not in evidence was harmless.

No error in denying curative jury instruction.

No tampering where judge tells jury that the blokes what approached them were not parties to the case.

Readbacks kosher.

Special verdict language which did not address burden of proof on the issue was not in error.

Eighth Circuit -- United States v. Mario Smith

United States v. Mario Smith

Advancing with guns drawn, chase & fight with deft = not an arrest, but a Terry stop.

Leaving the car in the drive-through at Taco Bell = abandonment.

Eighth Circuit -- Carlos Fernando Vasquez v. Stephanie Jo Colores

Carlos Fernando Vasquez v. Stephanie Jo Colores

Given goal of expediency, no error in denying continuance in a Hague Convention on Child Abduction proceeding.

No error in excluding evidence where proffer indicated that it would be cumulative.

Eighth Circuit -- United States v. Michael Wesley

United States  v.  Michael Wesley

No abuse of discretion in admitting a gun that might have been used in the robbery.

Introduction of unexplained wealth was error, as it likely came from a crime not in the indictment, but no error given weight of evidence.

No procedural or substantive errors in sentence.

Eighth Circuit -- Virgil Moore v. United States

Virgil Moore v. United States

Admission of form 2571 does not prejudicially determine that deft is a person of responsibility.

Signing form that indicates assessment suffices for notice of collection.  (Maybe.  TMB isn't tax-savvy.)

Seventh Circuit -- Board of Regents University of Wisconsin v. Phoenix Software

Board of Regents University of Wisconsin  v. Phoenix Software   

Findings in the TTAB holding that there was a likelihood of confusion of trademarks means that SJ at District Court is inappropriate.

State waives sovereign immunity to compulsory counterclaims by beginning Article III action to challenge TTAB finding.

Extensive primer on sovereign immunity / 11A.

Seventh Circuit -- USA v. USA v. Nora Penaloza

USA v. Nora Penaloza

No abuse of discretion in admitting extensive background evidence of investigation, despite court's prior denial of gov't's allegations of conspiracy in a Santiago proffer.

Post-transaction statements by deft in as background since not introduced for the truth of the matter asserted.

No constructive amendment of the indictment during trial to establish a conspiracy charge.

Witness' being there when deft confessed is sufficient foundation for their testimony.

Seventh Circuit -- Premium Plus Partner v. Goldman Sachs

Premium Plus Partner v. Goldman Sachs

 Putative class composed of those who went short and got burned by a Goldman position taken due to embargoed information -

The SOL runs from when a reasonable person would have discerned the fraud, not when scienter of the fraudster is established.

Judge's order granting Rule 68 motion disqualifies plaintiff as representative of putative class, as the remedy has been found.

Remand for explanation as to why simple interest from date of filing was awarded as opposed to compound from date of violation.

Seventh Circuit -- Andrea Fields v. Judy Smith

Andrea Fields v. Judy Smith

Act barring the use of government funds for medical treatments for transsexual prisoners violates 8th Amendment CUP, both facially and as applied.  District Court injunction upheld.

Seventh Circuit -- Jayne Mathews-Sheets v. Michael Astrue

Jayne Mathews-Sheets v. Michael Astrue

COLA raises to fee levels under the Equal Access to Justice Act are dependent on the availability of labor - i.e., counsel must demonstrate that specialists in the field are not available at sub-COLA levels of remuneration.

Seventh Circuit -- NLRB v. Irving Ready-Mix, In

NLRB v. Irving Ready-Mix, In

Ready-mix concrete is not a construction business, and therefore the employer is a 9(a) employer, not an 8(f) employer.  District Court injunction upheld.

Sixth Circuit -- William Gaspers v. Ohio Department of Youth Services

William Gaspers v. Ohio Department of Youth Services 

No qualified immunity for officials facing S1983 suit for retaliation on the basis of marriage.

[Quite different from marriage as the basis of retaliation. ]

Sixth Circuit -- Terrance' Akins v. Joe Easterling

Terrance' Akins v. Joe Easterling 

 Batson challenge via habeus to peremptory strike of one of two African-Americans in the pool denied.  (The other potential juror was out for cause.)

No error in court allowing deft to go pro se where young deft (17 at time of offense) was urged by mentally ill family member to represent self, then decided to retain counsel, and then decided to punt counsel immediately prior to trial.

Sixth Circuit -- USA v. Roger Trent

USA v. Roger Trent 

 Sex offender registration - where SORNA was passed but not yet implemented by the state, and an AG's regulation applying the statute to these interstitial cases had not yet gone into effect, there was no duty to register.

Fifth Circuit -- USA, ex rel, et al v. McKesson Corporation, et al

USA, ex rel, et al v. McKesson Corporation, et al

 Under the False Claims Act, there is a jurisdictional bar where the suit is based on publicly available information (presumably to prevent idle barristry).  Here, general notions of medical fraud which were publicly aired combined with the vague pleadings against defts TKO's the suit.

Fifth Circuit -- USA v. Alejandro Rios-Cortes

USA v. Alejandro Rios-Cortes

Where sentence is for two years but probated for five years and the deft violates the probation and gets 180 days, the conviction still gets the sentencing bump for aggravated felony, as the original term of two years is most relevant.

Fifth Circuit -- Windsor Place v. HHS

Windsor Place v. HHS

HHS findings on nursing home compliance  were kosher.

Fourth Circuit -- US v. Calvin Bonner

US v. Calvin Bonner 

Insufficient evidence to convict, as there were no contemporaneous ID's and a weak foundation for the scientific evidence (DNA on a baseball cap).

Thrd Circuit -- Yolanda Adams v. Ford Mtr Co

Yolanda Adams v. Ford Mtr Co

 Counsel called a juror after a trial to discuss the verdict, and in the course of the phone call, mis-stated the law.  Judge referred matter to local bar association by unsealed order.


Judge's factual determination that the rules had been violated is sufficient for standing to challenge.

Abuse of discretion in court's factual finding, as the conduct was not harassing in nature. 

Violation of procedural DP, as the finding was equivalent to sanctions.

Violation of DP in not informing counsel of possibility of sanctions prior to the hearing.  

Third Circuit -- Pittsburgh League of Young Vot v. Port Auth Alghny

Pittsburgh League of Young Vot v. Port Auth Alghny

 Whether agency's refusal to place certain non-commercial advertisements in its buses informing felons of their rights was an unconstitutional restriction on speech.

No decision on whether Bose or clear error is the standard of review.

No decision on whether the space is a public or nonpublic (b/c no political ads allowed) forum.

Comparator test establishes viewpoint discrimination - other noncommercial ads were accepted.

Third Circuit -- Jane Doe v. Indian River School District

Jane Doe v. Indian River School District

Given the potential for coercion and the purpose and character of the board, invocations at school board meetings are assessed under Lee's prayer-in-schools framework as opposed to Marsh's legislative-exception framework.

Under the Lemon test - policy TKO'd as its primary purpose is to advance religion and it fosters excessive entanglement.  (Court declines to decide whether solemnification is a viable secular purpose).

Endorsement test held to be identical to the second prong of the Lemon test.

Summary judgment to appellants.

Second Circuit -- Faber v. Metropolitan Life Insurance Company

Faber v. Metropolitan Life Insurance Company

Whether ERISA awards in the form of accounts with the plan administrator violate the administrator's obligation to act solely in the interest of the beneficiary, given the interest earned by the administrator.

Plaintiff meets looser ERISA statutory standing requirements (no personal injury).

Skidmore deference to DOL interpretation that the assets are no longer plan assets.

The administrator's duty is discharged by the creation of the account.

Second Circuit -- Casey v. Merck & Co., Inc.

Casey v. Merck & Co., Inc.

State law determines whether a putative class action in another jurisdiction (state or federal) tolls a SOL on a state law claim.  Circuit split implied ("the majority of our sister circuits").

Question certified to the Va. Supreme Court.

Second Circuit -- Mullins v. City of NY

Auer deference to the Secretary of Labor's determination that NYPD police sergeants are not primarily concerned with management, and are therefore entitled to overtime pay.  

Second Circuit -- Joseph v. HDMJ

Joseph v. HDMJ

 Question certified to the NY Court of Appeals on whether a state court dismissal for timeliness precludes by res judicata subsequent suit in a jurisdiction with a longer statute of limitations.

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.