Thursday, August 11, 2011



If you're standing surety for a company  importing cooked crawdads from China, and some managers of the company get indicted, it's reasonable to let the dust settle for four months or so to see if you need to file for a return of the surety.

Dissent: No it isn't.



The question of whether something ins an article of milk under the Harmonized Tariff Schedule is answered by asking if it has the essential character of milk. 

Eleventh Circuit -- State Farm Mutual v. Anna N. Duckworth

State Farm Mutual v. Anna N. Duckworth 

Claimant's notification of insurance company that she had moved to Florida was insufficient notice of permanent change of address to meet Florida's requirement in the public policy exception in insurance choice of law cases that the resident notify the carrier of new permanent residence.  (This so the carrier can know the law under which the policy operates.)  SJ appropriate.

Tenth Circuit -- Tomlinson v. El Paso Corp

Tomlinson v. El Paso Corp

ERISA does not require notification of wear-away periods so long as employees are informed and forewarned of plan changes.

Essentially, when a plan transitions, it takes awhile for monies accrued to catch up to minimum benefits - this period of flat-line benefits can arguably discriminate against older employees.



Exemption from employment tax for Indian tribes refers only to common-law employment not statutory ("employer of record") employment.  CCNV factors & Treasury regs used to determine common law employment.



Court rejects a bright line "missing element" rule for counting priors for sentencing bumps.  Instead, wherever the prior offense is categorically broader than the generic offense, a modified-categorical analysis should look to the specific facts found in the earlier conviction.  There is no requirement that the prior offense be divisible to invoke the modified-categorical - a broad term in the statute will suffice.

Strongly worded special concurrence - Scotus clear that only divisible (multiple ways of commitin' them) statutes get the modified-categorical treatment.

Another concurrence:  Although the majority opinion overrules Navarro-Lopez’s rule regarding our inability to apply the modified categorical approach when a state statute is missing an element of a generic offense, it effectively re-imposes the same missing element rule in applying the modified categorical approach to the facts of this case. According to the en banc opinion, use of the modified categorical approach is precluded if applicable state law contains nuances that differ from the generic definition of the crime. However, Supreme Court precedent does not mandate or counsel such a restrictive approach.

Eighth Circuit -- United States v. Donavan Michael Slagg

United States v. Donavan Michael Slagg

 No error in district court finding of large conspiracy as opposed to many smaller ones, as interdependence of multiple buyers and sellers indicated a common purpose.

Broke deft posting bail allows jury reasonably to conclude that drug money is being laundered.

No error in not giving instruction that buyer/seller is insufficient for conspiracy, as evidence established that more was going on than buying and selling.

When deft objected to introduction of mug shot but subsequently withdrew the objection, the claim is waived for appeal.

Where consent to forfeiture is predicated on conviction, not relevant which offense is convicted (deft was acquitted of the most seemingly relevant one).

Eighth Circuit -- United States v. Tamara Lynn Heid

United States v. Tamara Lynn Heid

 Error in barring withdrawal of guilty plea, as there was no factual basis in the record for money-laundering charge.

Eighth Circuit -- Railroad Salvage & Restoration v. STB

Railroad Salvage & Restoration v. STB

 When a court refers an issue to the Surface Transportation Board, the court holds jurisdiction over not just the narrow issue presented, but also, more broadly, from any issues which arise from the issue under consideration.

Potential circuit split with the Great and Powerful (with respect to administrative law) DC Circuit flagged.

Eighth Circuit -- Relenthis Blakley v. Schlumberger Technology Corp.

Relenthis Blakley v. Schlumberger Technology Corp.

Award of costs need not be on motion, just a schedule of costs - authorities cited by deft refer to fees, which are different.

12(b) motion granted for not exhausting administrative remedies was not error, as there was sufficient evidence in the public record.

12(b) dismissal as duplicative not erroneous.

Adding a new statutory c/a not kosher after being given leave to amend initial claim.

Summary judgment on Title VII and FMLA was correct.

Eighth Circuit -- Dakota, MN & Eastern R.R. v. Kevin Schieffer

Dakota, MN & Eastern R.R. v. Kevin Schieffer

(W)e conclude that an individual contract providing severance benefits to a single executive employee is not an ERISA employee welfare benefit plan within the meaning of 29 U.S.C. § 1002(1)

Remanded for consideration of whether payments at time of severance functioned as ERISA payments and therefore give jurisdiction under "relating to" jurisdictional grant of statute.

Eighth Circuit -- Owner-Operator Independent v. Supervalu, Inc

Owner-Operator Independent v. Supervalu, Inc

Where truckers incur special costs in offloading at a certain depot, they have an affirmative duty to prove that no third party (e.g., the shipper)  has reimbursed their costs before invoking a statutory c/a.

Extensive discussion of legislative intent/ statutory construction.

Concurrence: There is no statutory c/a.

Eighth Circuit -- United States v. Vincent Johnson

United States v. Vincent Johnson

No error in upward departure from guidelines because range insufficiently describes criminal history when such history is barred from consideration by guidelines. (remoteness)

Reasonable, sufficiently explained. 

Seventh Circuit -- USA v. Scott Johnson

USA v. Scott Johnson

When you have a CI who says he bought drugs from deft at deft's house four times in the last week, you have enough for a search warrant.

No error in trial court not giving a special credibility instruction, as court is in best place to judge.

Where prosc. in opening says deft had 5kg of cocaine, but then immediately corrects it to 1/2kg, no error in denying mistrial.  (Record established that 5KG had been there the night before.)

Prohibition in Sarbanes-Oxley on destruction of documents & objects can be used against deft who tries to destroy cocaine base before police get to it - it merely has to be relevant to a possible future court proceeding.

Said destruction properly referenced at sentencing to base offense of conspiracy, not possession.

Seventh Circuit -- Paula Jackson v. Indian Prarie School

Paula Jackson v. Indian Prarie School

Where a school places a violent, disabled student in a one-person classroom and the student later TKO's the teacher with a chair, the teacher has no S1983 claim under substantive due process against the school, as the setup was insufficiently conscience-shocking.

Sixth Circuit -- Stumpf v. Houk

Stumpf v. Houk 

Lack of due process challenge in the District Court  record does not mean that court of appeals cannot consider DP, as per Scotus remand instruction, as the issue was raised in passing in the habeus petition.

State earlier waived procedural default argument vs. DP challenge.

Teague bar on retroactivity of new criminal rules is not jurisdictional.

Suggesting in closing that deft was the principal actor in the murder, where state has evidence and belief that a different deft was the central actor is a "constitutional violation"  which prejudices sentencing.

Dissent:  Conviction was by best information available at the time, Teague bars creation of a new substantive right.

 Volokh has more here.

[Thou shalt not kill.  -TMB]

Sixth Circuit -- USA v. Darrell Walker

USA v. Darrell Walker 

Error for sentence for escape, as it was revised upwards from guidelines to promote inmate's rehabilitation.

Fifth Circuit -- Jane Doe, et al v. Covington County Sch Dist, et al

Jane Doe, et al v. Covington County Sch Dist, et al


Third Circuit -- William Morgan v. Covington Twp

William Morgan v. Covington Twp


First Circuit -- Contour Design Inc. v. Chance Mold Steel Company Ltd

Contour Design Inc. v. Chance Mold Steel Company Ltd 

No error in issuance of preliminary injucntion where then supported in record - court here defers to judgment of lower court, as the action on the merits has completed, and emphasises that the lower court is free to convert the preliminary injunction into permanent relief even while parties seek direct appeals.

First Circuit -- National Organization For Marriage v. Daluz

National Organization For Marriage v. Daluz 

No error in denial of injunction - vagueness and free speech challenges.

Free speech - sufficient government interest to justify the disclosure requirements.

Vagueness - merely requires interpretation.

See Other NOM case filed today for expanded rationale.

First Circuit -- National Organization For Marr v. McKee

 National Organization For Marr v. McKee 

 National organization does not have standing to challenge state regulations of major-purpose PACS, as the major  purpose of the organization is not intervention in that particular state's affairs.

National organization has standing to challenge non-major-purpose PAC laws, given self-censorship in recent campaign.

National organization has standing to challenge out-of-state PAC laws.

Even though plaintiff's actual conduct was clearly within the ambit of the statute, forgone/chilled conduct grants standing to challenge vagueness.

Extensive discussion of issue advocacy versus candidacy support - ultimately held to be irrelevant to overbreadth.

State law defining PAC's and regulating disclosure held to exacting (intermediate - substantial connection to legit end) scrutiny, not strict scrutiny.  No burden in being labeled a PAC.

 State interest in dissemination of information means that the definition of PACs is not overbroad.

$100 trigger for independent expenditure reporting constitutional despite not being indexed to inflation.

Minimal attribution and disclaimer regs kosher after Citizens United.

Terms used in Act not unconstitutionally vague under due process.

Where parties stipulate that certain parts of the record are to be sealed, no error in court ordering opening of entire trial record, absent proof of harm from parties.  Presumption is for openness.

First Circuit -- Precetaj v. Holder, Jr.

Precetaj v. Holder, Jr.

Given that IJ found applicant's story of scattered abuses to be true, infiltration of foreign police and abuse of family members should counsel for grant of asylum - vacated and remanded.

First Circuit -- US v. Shields

US v. Shields 

Federal civil commitment statute generally constitutional - possible interbranch delegation issue described as underbriefed & therefore waived.

De minimis error in date of filing of government petition does not bar commitment.  (Act specifies that inmate must be under control of the BOP, papers were filed the day after end of sentence)

Given priors and 2/3rds of shrinks' verdicts, no error in finding of dangerousness.

Second Circuit -- Williams v. Citigroup

Williams v. Citigroup

No obligation to file a motion to amend the pleadings with initial answer or prior to entry of judgment on a 12(b)6 - a postjudgment motion to that effect should be granted where amendment can cure the defects of the pleading.  

(Reasons - FRCP directive on liberal granting of leave to amend & desire of courts to answer questions on the merits. )
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.