Friday, August 19, 2011

Federal Circuit -- RIVERA V. DEPT. OF VETERANS AFFAIRS

RIVERA V. DEPT. OF VETERANS AFFAIRS

Letter by claimant protesting denial of claim met the statutory requirements for a valid appeal.

DC Circuit -- USA v. Brandon Laureys

USA v. Brandon Laureys

 Improper inducement of a minor can be proven when deft communicates with a third party as opposed to the minor.


Remand for ineffective assistance evidentiary hearing.


No plain error in supervised release restrictions banning cameras, barring deft from areas where pr0n is sold, requiring internet restrictions.

Tenth Circuit -- The City of Riviera Beach vs That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, Fane Lozman

The City of Riviera Beach vs That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, Fane Lozman 

Although deft claims the structure is a floating non-seafaring shack, Circuit precedent holds it to be a vessel.  Circuit split flagged.

No error in district court finding of maritime lien for unpaid dockage.

Suspicious timing not enough to avoid summary judgment on 1A retaliation claim.

City issuance of a lease does not judicially estop the bringing of a maritime lien.

Bar of earlier eviction action due to retaliatory nature does not collaterally estop present action.

Tenth Circuit -- Sidney Gipson, William McGuirk, et al vs Jefferson County Sheriff's Office, in his official capacity, State of Alabama

Sidney Gipson, William McGuirk, et al vs Jefferson County Sheriff's Office, in his official capacity, State of Alabama 

Challenge to law dismissed as moot, as the law has become irrelevant.

Ninth Circuit -- CENTER FOR ENVIRONMENTAL LAW A V. UNITED STATES BUREAU OF RECLAMATION

CENTER FOR ENVIRONMENTAL LAW A V. UNITED STATES BUREAU OF RECLAMATION

Drawdown of water from lake under NEPA upheld under hard look review.  (The agency took a sufficiently hard look, according to the court -- not Overton Park  hard look.)

Ninth Circuit -- YAKIMA VALLEY MEMORIAL HOSPITA V. WASHINGTON STATE DEPARTMENT OF HEALTH

YAKIMA VALLEY MEMORIAL HOSPITA V. WASHINGTON STATE DEPARTMENT OF HEALTH

Regulatory regime issues permits for hospitals to perform certain elective procedures, based on the community's need for a hospital to do such things.  Challenged, viz -

The fact that the hospitals can adjust the number of elective procedures performed does not mean that the rule is not a unilateral restriction - the permit scheme is a simple barrier to entry, unilaterally imposed by the government, and thereforenot preemepted by the Sherman Act.

In-state hospital has standing to challenge under Dormant Commerce Clause.


Ninth Circuit -- C.F. V. CAPISTRANO UNIFIED SCHOOL DISTRICT

C.F. V. CAPISTRANO UNIFIED SCHOOL DISTRICT

No error in allowing plaintiff to amend schedule & deft to file new response after summary judgment substantially impacting theory of the case.

Qualified immunity from Establishment Clause challenge for history teacher who allegedly made disparaging statements in AP HIstory about Christianity.

Ninth Circuit -- IN RE: BLUETOOTH HEADSET PROD.

IN RE: BLUETOOTH HEADSET PROD.

100K to class and 800K to counsel raises an inference of unfairness - record does not dispel the thought that counsel tossed class under the proverbial bus.

 

Ninth Circuit -- REBECCA RICKLEY V. COUNTY OF LOS ANGELES

REBECCA RICKLEY V. COUNTY OF LOS ANGELES

S1988 Fees to attorney-spouses of original counsel upheld, as they are sufficiently independent and detached, and the alternative is unworkable.

Ninth Circuit -- FLEISCHER STUDIOS, INC. V. A.V.E.L.A., INC.

FLEISCHER STUDIOS, INC. V. A.V.E.L.A., INC.

Doctrine of indivisibility of copyrights does not mean that an explicit transfer of film rights while retaining character rights by a separate and nonspecific clause implies that transferor did not wish to retain character rights.

Transferor's subsequent licensing of character does not mean that they thought to retain character in an earlier deal.

No abuse of discretion in declining to consider evidence submitted after FRCP deadline.

Appeals court should not take judicial notice of untimely submitted (to trial court) trademark registration.

Fractured trademark ownership is not a per se bar to a finding of secondary meaning.

Dissent - Title to the character passed.

Ninth Circuit -- M.H. V. USA

M.H. V. USA

Under the Required Records Doctrine (essentially regulatory, customarily kept, public in some sense), the Fifth Amendment does not bar compliance with a subpoena asking for information about Swiss bank accounts.



Ninth Circuit -- USA V. GEARY WATERS, JR.

USA V. GEARY WATERS, JR.

Where sentencing court sentences according to offense level and not the career offender guideline, subsequent revisions in the offense level statutory scheme do not justify a downward revision past the career offender guidelines, so long as the sentencing court found that the career offender terms were triggered (while not making them the reason for decision).

A sentence reduction hearing cannot be used to challenge a career offender finding.


Ninth Circuit -- RUSSELL JOHNSON, III V. LUCENT TECHNOLOGIES INC.

RUSSELL JOHNSON, III V. LUCENT TECHNOLOGIES INC.

Errata.

Ninth Circuit -- YAO REN V. ERIC H. HOLDER JR.

YAO REN V. ERIC H. HOLDER JR.

Although ILJ's adverse credibility decisions were not supported by substantial evidence (e.g. asking Chinese Christian to recite "the Lord's Prayer"), when petitioner didn't provide corroborating evidence within time frame, the claim was properly forfeited.  

Ninth Circuit -- MCCOY V. CHASE MANHATTAN BANK

MCCOY V. CHASE MANHATTAN BANK

After Scotus remand, lower court dismissal of TILA and state law claims which challenged retroactive imposition of credit card fees is upheld. 

Ninth Circuit -- DELGADO V. HOLDER

DELGADO V. HOLDER

Courts have jurisdiction to review agency definition of "particularly serious crime" warranting withholding of removal.

Under Chevron deference, BIA can set threshold for "particularly serious crime" by either rule or adjudication.

Concur/special concur: BIA rules & precedent foreclose withholding of removal for a DUI.

Eighth Circuit -- Interlachen Harriet Investment v. Douglas A. Kelley

Interlachen Harriet Investment v. Douglas A. Kelley

Sufficient evidence in the record for bankruptcy settlement, although not enumerated by court.

Drexel factors satisfied.

Eighth Circuit -- Federal Trade Commission v. Lundbeck, Inc.

Federal Trade Commission v. Lundbeck, Inc.

No error in District Court finding that there was no pharma market for antitrust purposes, since experts testified that cost did not drive their decisions as to which of several similar drugs to use.

Functionally similar products can be in different markets.

No error in District Court not crediting expert claiming marginal buyers could affect costs.

Manufacturer's own documents indicating market are not dispositive.

Concurrence - Docs never choose drugs based on economic motives - but no reversible error in trial court holdings.

Seventh Circuit -- M. C. Winston v. Ana Boatwright

M. C. Winston v. Ana Boatwright

When deft's lawyer deliberately uses all peremptory strikes to keep males off of sexual assault jury, it's ineffective assistance - but as no clear caselaw on how to assess prejudice from error, no error in state denial of habeus.

(While Batson would justify automatic reversal, and therefore the writ, the fact that deft's counsel made the choice triggers Strickland analysis, which requires a showing of prejudice.)

Seventh Circuit -- USA v. Nikole Sakellarion

USA v. Nikole Sakellarion

Where additional priors come to light after plea deal and deft subsequently tests positive for drugs, appeals waiver in plea deal bars appellate consideration of alleged government bad faith in the drug testing/subsequent negotiations.

Seventh Circuit -- International Union, v. ZF Boge

International Union, v. ZF Boge Elastmetal

Absent other indications in the text, where an agreement it reached modifying the terms of a CBA, the interstitial agreement expires with the CBA - no terms bind the parties past the agreement of a new CBA. 

No latent ambiguity in agreement which would justify looking beyond the text.


Sixth Circuit -- USA v. Calvin Boender

USA v. Calvin Boender

No requirement to prove a specific quid pro quo for conviction on corrupt political giving statute.  Circuit split lightly noted .

Crime/Fraud exception to privilege - no hard evidence required to hold a review in camera, merely that a reasonable person might hold a good faith belief that it was probative.

As for government attendance at the in camera hearings, courts should consider (1) presumption against ex parte proceedings (2) relative efficiency of multiparty proceeding, and (3) nature of evidence to be examined.

Statute barring false name contributions also bars straw man contributions.

Sixth Circuit -- Carol Metz v. Unizan Bank

Carol Metz v. Unizan Bank
James Loyd v. Huntington National Bank  
Billy Blair v. Bank One 
David McKinney v. Nick Ludwick 

A UCC "properly payable" claim against the bank issuer of checks used in a Ponzi scheme is not considered an action for conversion under the Ohio statute of limitations.  (Which would have ticked from discovery, not conduct.)

SOL ran from the first discovery that something wasn't right (cessation of interest payments), not the full discovery of facts.

Though plaintiffs did not caption petition as securities fraud, the actual nature of the investments means that the securities fraud statutory SOL applies, not the common law rule.

Court retains jurisdiction over claims after denial of class certification.

Settlement of claims against a party releases any respondeat superior claims against their supervisor.


Fifth Circuit -- One Beacon Insurance Company v. Crowley Marine Services Inc

One Beacon Insurance Company v. Crowley Marine Services Inc.

Errata.

Third Circuit -- Mark Renfro v. Unisys Corp

Mark Renfro v. Unisys Corp

Dismissal of claim against ERISA directed trustee upheld, as, according to the plan paperwork, their fiduciary duty did not extend to the challenged conduct.

By pleading that directed trustee didn't exercise proper oversight, plaintiff's TKO the necessary scienter.

Statute does not permit recovery from non-fiduciaries involved in fiduciary breach.

Courts can pierce pleadings sufficiently to examine the mix of investment options offered by trustee - instant plan is kosher.





First Circuit -- Dickow v. US

Dickow v. US 

IRS regs which denied a second 6 month extension upheld under Chevron deference.

Neither equitable estoppel nor equitable tolling are available for tax deadlines. (The latter soewhat dicta-ish.)

Gov't silence in response to deadline extension application insufficient to create estoppel.



First Circuit -- US v. Vargas-Davila

US v. Vargas-Davila

Within-guidelines sentence was not substantively unreasonable.   The Tempest is quoted - poetry literally being used to imprison others.

First Circuit -- Soto-Torres v. Fraticelli

Soto-Torres v. Fraticelli 

Pleadings in Bivens action against the head of FBI local office insufficient - there is no de facto supervisory liability, so specific acts, omissions, and knowledge must be in pleadings.

First Circuit -- Doe v. Newburyport MA Public Schools

Doe v. Newburyport MA Public Schools

When parents seek compensation for alternative educational setup under IDEA, a subsequent move out of the school district does not moot their claim for costs incurred before the move or for fees on actions on which they prevailed prior to the move.

Second Circuit -- Amador v. Superintendents of Dep’t of Corr. Servs.

Amador v. Superintendents of Dep’t of Corr. Servs.

Where jurisdiction over claims is only granted contingently, a higher standard applies to pendant and ancillary claims tied to the case - the court here declines to review interlocutory rulings which limited recoveries of certain members of the putative class.

Error in dismissal of claims of released prisoners as moot, since they were capable of repetition yet evading review.


Prisoner's lack of exhaustion of internal remedies not excused by estoppel, as there was insufficient dissuasion from prison administration to the filing of the full complaint.

Prisoner claim that there was insufficient protection was sufficient to constitute a complaint about systems and procedures.

Second Circuit -- Federal Trade Commission v. Bronson Partners, LLC

Federal Trade Commission v. Bronson Partners, LLC

False advertising - Section 13(b) of the FTC Act permits not merely injunctive relief, but also ancillary remedies, incl. disgorgement.

Extensive discussion of remedies in law v. equity.


Disgorgement can function as an equitable remedy - no tracing to individual victims need be established.


Disgorgement should be of the gross takings, not the net.

Second Circuit -- USA v. Echeverry

USA v. Echeverry

Sentencing bump for discharge of a weapon upheld despite the fact that the defts gun was grabbed by the victim, who then shot the deft's accomplice.

Reasoning: Drafting in passive voice negatives intent, Recent Scotus decision somewhat on point.
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.