Monday, August 15, 2011

DC Circuit -- Estate of Mark Parsons v. Palestinian Authority (8/12)

Estate of Mark Parsons v. Palestinian Authority

Family of man killed while providing security for a State Department convoy in the Gaza Strip filed suit against the PLO under the Anti-Terrorism Act of 1991 on theories of both material support and conspiracy - District Court granted summary judgment to defts, Circuit reverses on material support, but in tangled melange of dissents, declines to speak to scienter requirement.

DC Circuit -- In re: Antoine Jones

In re: Antoine Jones

Dismissal of a S1983 claim on the grounds that it would amount to a collateral attack on conviction counts as one of the PLRA three strikes.

DC Circuit -- DHS v. FLRA


No review of finding that reassignment of DHS workers was an unfair labor practice, as (1) the working agreement was not a CBA, and therefore could not represent negotiated assent to the change and (2)  the change in work was significant enough.

DC Circuit -- In re: David Kissi (8/12)

In re: David Kissi
 In re: David Kissi

PLRA three strikes rule applies to mandamus filing fees related to pending civil actions. 

Eleventh Circuit -- USA v. Robert D. Singletary

USA v. Robert D. Singletary

Restitution  order of 1M set aside.

It thus appears that the court merely intuited losses of $1 million for purposes of its § 2B1.1(b)(1) determination and then used that figure in awarding the United States forfeiture.

(In fairness, gov't had asked for 3M)

Tenth Circuit -- Larry Snyder and Company v. Miller

 Larry Snyder and Company v. Miller

Wher flaws are later found in construction, the specific remedy terms in the sub contract govern - not the general flow-through term binding all subs and contractors to the project developers' decisions.

Tenth Circuit -- United States v. Cooper

United States v. Cooper

Tax & wire fraud -

Sufficient evidence.

No Brady violation where the evidence is cumulative to other stff in the record calling the deft a schmuck - insufficiently stark contrast to provide a new angle on the impeachment of the witness.

Warrant not defective, as specific grounds were cited, not mere conclusions.

Warrant sufficintly particular (when read in the context of the affadvits).

No error in denial of Franks hearing.

Ninth Circuit -- USA V. MIGUEL VASQUEZ


Warrant had probable cause, as informants identified the deft as  the leader of a gang, and Magistrate could reasonably conclude that records would be found at his house.

Warrant was not overbroad, as it was only for documents relating to the gang.

No error in denial of Franks hearing to challenge informant's characterization of him as  "president" of the group, as mere officer would have sufficed for the search.

Sufficient Evidence.

Sentence substantively reasonable, even though several RICO defts in same group got less.



Where companies purchase drivers license data for the purpose of an undefined future use, such acquisition is not a violation of Act which specifies the authorized uses of such data, as stockpiling is not a use.   



The Misfits II: Likely Success on the Merits

Interlocutory appeal seeking preliminary injunction barring roundup of wild horses and burros dismissed as moot, as the roundup has already happened.  Balance of civil action still pending.

Dissent: Although the roundup happened, the animals are still in temporary holding, and relief is still possible.

Ninth Circuit -- NDOC V. RUSSELL COHEN


 Ban on inmates possessing typewriters upheld.

1 - Not unduly retaliatory, as it was enacted after a murder using one.
2 - No violation of access to the courts, as although the Nevada Supreme Court requires typewritten briefs, inmates' injury is speculative, as no appeals are in the record.
3 - No 14th Amendment violation as it is a rule of general application
4 - No error in cutting short discovery.

Eighth Circuit -- United States v. David West Dixon

United States v. David West Dixon

Crim -

1. Sufficient Evidence
2. No error in court not dismissing sua sponte a venireman who indicated possible bias towards police.
3.  No procedural/substantive error in sentence.

Eighth Circuit -- Jerome C. Anderson v. Hess Corporation

Jerome C. Anderson v. Hess Corporation

Under North Dakota law, a drilling company need not spud the well to fulfill a boilerplate drilling requirement in a mineral lease.

No error in District Court not certifying questionn to state supreme court, given plain meaning and caselaw.

Eighth Circuit -- United States v. Traves Rush

United States v. Traves Rush

Initial  encounter was consensual - followed by marked police car, deft had to walk past armed officer in his path.  In that he could have done so, consensual conversation.

Placing deft in back of police car not unreasonable after discovery of ~2K, given bank robbery within the hour.

Exclusion of radio calls saying getaway car was red Chrysler as hearsay (when introduced by deft to show unreasonableness of initial seizure of blue Chrysler)  harmless.

Eighth Circuit -- United States v. Edward Boroughf

United States v. Edward Boroughf

Appellate waiver enforced over Anders challenge to reasonableness of sentence..

No error in prior being counted despite being similar to and within timeframe of presently charged conspiracy, as court could reasonably find it to be unrelated.

Eighth Circuit -- Ninoska Lopez-Amador v. Eric H. Holder Jr

Ninoska Lopez-Amador v. Eric H. Holder Jr

Immigration -

Insufficient past persecution  when generally targeted by snipers at a demonstration & encountering vehicle checkpoints.

Insufficient likelihood of future persecution based on sexuality, as the only evidence in the record refers to transgender individuals.

Seventh Circuit -- Kenneth Carter v. Pension Plan of A Finkl

Kenneth Carter v. Pension Plan of A. Finkl

Where a pension plan starts windup but then reverses, an amendment to the Plan offering annuities on windup irrespective of employment status with the company:

(1) Doesn't violate ERISA, as it's nothing to do with retirement - workers are hoping to gain the annuity without retiring.

(2)  Doesn't violate the anti-cutback rules within the plan, as Administrator could reasonably rule that it was only triggered by the windup that didn't happen.

No error in calculation of certain kinds of bonuses as income for purposes of the plan, given longstanding practice of employer.

No success on the merits means no fee for you.

Seventh Circuit -- USA v. Charles Robertson

USA v. Charles Robertson

Where resentencing for violation of supervised release departs from the range guidelines and the sentencing judge doesn't even reference the guidelines in sentencing, vacate & remand.

(Till Eulenspiel moment:  Deft served ~10 yrs in prison for growing MJ, arrested in last days of 8 yrs. supervised release while tending MJ plants.  When asked why, he said that he liked the way the plants looked, and he liked to smoke them.)

Sixth Circuit -- USA v. Michael Judge

USA v. Michael Judge

No error in not explaining sentence sufficiently, as court dealt with all args advanced by deft.

No error (abuse of discretion standard) in court possibly considering a future 35(b) motion to reduce sentence when imposing initial sentence.  


Fourth Circuit -- US v. Tyerail Massenburg

US v. Tyerail Massenburg

Lack of eye contact and standing a bit apart from the others is insufficient grounds for a frisk during a Terry stop where the police are responding to an anonymous report of shots fired.

The collective knowledge rule (knowledge of instructing officer imputed to executing officer) does not operate in the aggregate (the sum of all knowledge possessed by policemen at the scene) - some degree of connection or instruction is required.

Third Circuit -- People of the Virgin Islands v. Tydel John

People of the Virgin Islands v. Tydel John

No reasonable reliance exception for faulty search warrant for pr0n based on investigation of child abuse.

First Circuit -- Mississippi Public Employees v. Boston Scientific Corp.

Mississippi Public Employees v. Boston Scientific Corp.

No reasonable evidence of enough scienter after initial discovery where:

- Manufacturer contemplated change in device which might or might not necessitate a recall - no evidence as to ultimate impact on stock viability.

- Manufacturer insisted that greater physician familiarity with the device would reduce the problem of sticky stents.  (It didn't lull the market to any fundamental problems with the device.)

- Partial recall publicly described by CEO as "not tip of the iceberg" - CEO said privately that he wasn't confident the situation was under control.

A/C Privilege -

The fact that discussions were about how to avoid future problems does not remove the privilege.

No t improper for company to direct all relevant internal communication via the GC's office - such funnelling does not manufacture privilege.

Second Circuit -- Goodrich v. LIRR Co.

Goodrich v. LIRR Co.

For IIED liability under FELA, the conduct must occur within the zone of physical danger contemplated by the statutory scheme; a railroad electrician whose co-worker publicly identified him as HIV-positive cannot pursue a claim.

Second Circuit -- John Wiley & Sons, Inc. v. Supap Kirtsaeng

John Wiley & Sons, Inc. v. Supap Kirtsaeng

Big holding - The First Sale Doctrine of S109 does not apply to works manufactured outside of the United States.   S602, Which would otherwise bar the unauthorized importation of such works, governs.  

No plain error in not giving "no set law on this yet" jury instruction, as deft had chance to present that theory during trial.

No error in admitting evidence of gross revenues, which included books made by other companies.

Dissent:  No requirement in statute that the works be produced domestically.

Second Circuit -- Briscoe v. City of New Haven

Briscoe v. City of New Haven

In Ricci, the Supreme Court held that a city could not refrain from certifying firefighter exam results from fear of a disparate impact Title VII suit, even thogh certification risked a disparate treatment suit.

Held: (1) The dictum in Ricci  does not shield the city by nonparty preclusion from a disparate impact suit; (2) Crossing the streams of disparate impact statutory law and disparate treatment caselaw would be a really, really bad idea; (3) The one-line dictum is insufficient grounds for a 12(b)(6) dismissal by the lower court.
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.