Wednesday, August 24, 2011



Medicare suit challenging increases in copayments.

Chevron deference to Secretary's determination that some populations can be covered under a part of the statute without co-pay protections.

BUT the actual shift to that part of the statute was arbitrary and capricious.

Deference to Secretary's finding that human experimentation ban doesn't apply to experimental cost structures.

Ninth Circuit -- USA V. JUAN MATUS-ZAYAS


Plain error in Immigration tribunal not establishing unavailability before allowing videotaped statements of material witnesses, but doesn't rise to level justifying relief.

Facial challenge TKO'd, as law doesn't abrogate constitutionally required showing of unavailability.

No plain error in ordering depositions from material witnesses and subsequent release.

Any party can move to depose a material witness under FRCrimP15(a)(1)

Probably no need for signature of transcripts under oath.



Order - going to en banc, prior opinion not precedential.

Seventh Circuit -- Sierra Club v. Khanjee Holding (US)

Sierra Club v. Khanjee Holding (US)

FRCP issues - power plant permitting/construction.

Absent a change in the legal landscape, law of the case determinations on subject matter jurisdiction bind.

Excessive fines challenge waived, as not made below in reply brief to motion for fines -- since litigant argues that any fine would be excessive.

Deft had sufficient control over project, no need to be actual owner/operator to be sued by relator.

Fine reasonable given deft's knowledge.

Fees should be awarded to relator regardless of how well funded it is.

Seventh Circuit -- Mannie Maddox v. Timothy Love

Mannie Maddox v. Timothy Love

Error in rejecting prisoner claim for failure to exhaust where administrative tribunal spoke to merits without addressing procedural shortcomings.

No RILUPA claim for denial of sectarian services, given sovereign immunity.

Pleading sufficiently alleges S1983 violations in cancellation of sect's services.

Where prison officials address an inmate’s grievance on the merits without rejecting it on procedural grounds, the grievance has served its function of alerting the state and inviting corrective action, and defendants cannot rely on the failure to exhaust defense.

Seventh Circuit -- Alicja Wroblewska v. Eric Holder, Jr

Alicja Wroblewska v. Eric Holder, Jr

  Due Process argument against immigration sting operation so subpar as to merit Bar sanctions for counsel.

Seventh Circuit -- Carol Everett v. Cook County

Carol Everett v. Cook County

   Title VII action for terminating employee because she was Caucasian TKO'd for lack of proven animus.

No gain from spoliation argument from destruction of documents, as no bad faith proven.

No S1983 b/c insufficient procedural irregularities.

Seventh Circuit -- Arboleda Ortiz v. Thomas Webster

Arboleda Ortiz v. Thomas Webster

    Bivens action by death penalty inmate alleging de facto policy of barring death penalty prisoners from obtaining appropriate off-site medical care.  Though the court finds no such policy, the doctors actions are held to reflect deliberate indifference sufficient for remand.

Dissent: Mere negligence.

[Thou shalt not kill.  -TMB]

Seventh Circuit -- USA v. Ernest Snow, Jr.

USA v. Ernest Snow, Jr.

   Where tip to dispatcher alerts officers to possibility deft is a burglar, ordering deft out of car for a patdown is kosher, given that burglars are frequently armed.

Seventh Circuit -- Garry Boyd v. Tornier, Incorporated

Garry Boyd v. Tornier, Incorporated

Insufficient evidence that there was a substantial imbalance between parties to contract -- contract term barring recovery of lost profits binds.

Sufficient evidence for negligent misrepresentation.

Assumption that business would grow 20%/yr untenable.

No error in finding that punitive damages barred as a matter of law.

Seventh Circuit -- John Marcatante v. City of Chicago

John Marcatante v. City of Chicago

   Workers who retired during the negotiation of a new CBA are not entitled to retroactive wage increases included as part o new CBA - the written contract governs.  No DP violation, as state did not induce them to retire.

Seventh Circuit -- Shane McCarthy v. William Pollard

Shane McCarthy v. William Pollard

   When state destroys vehicle used in crime and there was no apparent exculpatory value, no DP violation sufficient for habeus.

Deft had argued brake failure, prosecution disputed this, argued against it in closing.

Seventh Circuit -- Wisconsin Interschol v. Gannett

Wisconsin Interschol v. Gannett

State entities may contract with private providers to exclusively stream entire events or performances - no 1A violation.

No prior restraint - reporting is permitted, but performance is restricted.

Viewpoint considerations satisfied, even though they don't apply.

Key is the appropriation of content - Zacchini

Advertising and merchandising exclusive deals establish that states can grant exclusive rights.

Seventh Circuit -- Micrometl Corporatio v. Tranzact

Micrometl Corporatio v. Tranzact Technologies

Party is shocked, shocked when a document in other party's possession reveals amount in controversy to be a mere 40K.  After holding onto it for a bit, they present to the court & move for remand due to lack of SMJ.  No fees shifted, however, as they held on to it for 10 months, and there was no evidence of duping or bad faith on part of first party.

The fact that remand for SMJ is timely at any time doesn't justify second party's holding on to the info for 10 months.

Seventh Circuit -- Manuel de Jesus Fami v. Eric Holder

Manuel de Jesus Fami v. Eric Holder

   Guilty plea to aiding & abetting importation for purposes of prostitution -- petitioner provided condoms to brothels.  Court holds this to be not a violent felony.

Many aiding and abetting convictions are atypical of the generic crime.

Error in applying modified categorical approach, although statute is divisible - better to consider charging instrument, etc but not to the extent of circumstance-specific analysis.

Seventh Circuit -- State of Michigan v. United States

State of Michigan v. United States

No abuse of discretion in District Court declining to issue injunction requiring Corps of Engineers to close some Great Lakes waterways to prevent Asian Carp invasion.  Current regulatory efforts, though not enough to displace, effectively TKO a judicial solution -- an injunction would just muddy the waters.

Federal common law (public nuisance) extends to passive carp-enablement.

Genuine question as to whether the US as sovereign is vulnerable to a public nuisance suit.

APA Waiver of sovereign immunity obtains.

Current level of legislation not enough to displace common law solution.

Likely success on merits, given magnitude of hams.

Injunctive relief sought is vague.

Error for District Court to assess harms at the same time as success on the merits when deciding the injunciton.

Balance of harms favors deft.

Seventh Circuit -- USA v. Christopher Holcomb

USA v. Christopher Holcomb

Denial of en banc rehearing given President's direction to USA's that the FSA of 2010 applies to all sentencings after the effective date, without regard to date of the crime, further direct appeals, or post-sentencing matters in the District Court.

[Brisk and blithe reductions of  rich & extended opinions follow.]

Easterbrook: Only way to implement would be to issue commutations.  Parsing law is our gig.

Williams:  Three other circuits disagree; saving the Saving Act, judges have to sentence according to the latest ruling of the legislature;

Posner:  Statutes aren't to be interpreted literally if results are absurd [Holy Trinity not cited], old scheme unjust.

Interesting - Circuit split 50/50, as there's an even number of judges at the moment.

Sixth Circuit -- Carol Metz v. Unizan Bank

Carol Metz v. Unizan Bank 

Attorney's refiling of claims earlier dismissed with prejudice is sufficient to justify sanctions.

Improper purpose is established by the fact that a reply brief was required.

District court need not make specific finding of bad faith to justify sanctions.

No error in sanctioning under inherent authority where Rule 11 also applies.

No DP violation in imposition without a hearing.

Sixth Circuit -- USA v. Keahmbi Coleman

USA v. Keahmbi Coleman 

Ohio "Buglary of an occupied structure" statute is a qualifying predicate offense for ACCA.

Court says that the categoraical approach should be applied.  Emphasis seems to be on what the typical instance of the crime would involve.

Residual prong.

Sixth Circuit -- Larry Gibbs v. USA

Larry Gibbs v. USA 

On a collateral challenge to priors for career criminal designation, a 60(b) motion arguing actual innocence of being a career criminal cannot be used to challenge the predicate offenses.

Although no one had challenged the specific statute, similar challenges should have put deft on sufficient notice to raise the issue on direct appeal.

Court declines to say whether actual innocence can be grounds for challenging noncapital sentences. 

Calculation of guidelines sentence is inherently procedural.

Fourth Circuit -- ASWAN v. Commonwealth of Virginia

ASWAN v. Commonwealth of Virginia

Allegation of a conspiracy to get the homeless out of downtown by building a distant shelter insufficiently pleaded, TKO'd by SOL.

Bare assertion of a Section 1985 conspiracy to get the homeless out of the center of the city insufficiently pleaded under Twombly.

One year SOL in state statute applies to ADA claims brought in Virginia.

Given the allegations of conspiracy, the SOL runs from the building of the out-of-town shelter, not the consequent incidental statutory violations.

Retracting a gratuitous promise is an insufficient basis for an ADA retaliation claim.

Concur/dissent - retraction of gratuitous promise was materially adverse, which justifies the retaliation claim.

Concur/dissent - discrete acts after the opening of the new shelter suffice for SOL reset.

Third Circuit -- Keith Litman v. Cellco Partnership

Keith Litman v. Cellco Partnership

Federal Arbitration Act preempts state policies favoring class-based arbitration.  The customer's waiver of class-based actions is binding.

(On remand from Scotus.)

Third Circuit -- In Re: Niles C. Taylor

In Re: Niles C. Taylor

Where a lawyer rubber-stamps data fed by an automated client interface into her court filings, this one goes to eleven.

 Literally true statements in a filing can also be false or misleading.

Key to whether attorney can accept statements from client as true is whether she elicits them, or is simply given them by client.  Where automated system provides counsel with false data, reliance is unreasonable.  Opponent's claims can also put attorney on notice. 

Sufficient particularized notice of sanctions, even when not captioned as an order to show cause.

Bank client of law firm insufficiently intertwined to benefit from reversal of sanctions against firm unless it shows up to fight them as well.

Second Circuit -- Patsy’s Italian Restaurant, Inc. v. Banas

Patsy’s Italian Restaurant, Inc. v. Banas

(Excellent) pizzeria and sauce operations in trademark fight over who is the bigger...  You know...

Injunction barring sauce brand from seeking cancellation of competitor's mark does not bind affiliated restaurant business.

Where a jury finds that a company has abandoned its mark through naked licensing, court may find that the special verdict on abandonment refers only to those geographical areas referred to in the charge.  

Valid mark in any geography sufficient to block similar federal mark of competitor before finalized.

When mounting a prior use defense for a federal mark, interstate use does not have to be shown.

No error in not awarding fees to prevailing party under the Lanhamm Act - properly within court's discretion.  

No error in court including definitions of both pizzeria services and restaurant services in the jury instructions. 

Sufficient evidence for fraud on the PTO.

No abuse of discretion in court ordering cancellation of competing mark but not restoring mark, given limited rights of past trademark holders.

No abuse of discretion in not enjoining future use of mark where court cancels mark.

No abuse in a sua sponte injunction barring use of the mark in a certain area where there is evidence of consumer confusion.



Despite precedent suggesting lack of jurisdiction over disclaimed patents in an action alleging interference, the logic doesn't apply to expired patents in a similar action, as holders of expired patents hold some rights.

Patent term extension in S156 does not apply on a claim-by-claim basis.

Much ado about the obviousness of protein patents, absolutely none of which is obvious to TMB at two in the morning.



As they derived from the breach, indirect administrative and overhead costs can be included in the recovery.

Eleventh Circuit -- Walter Int'l Productions v. Walter Mercado Salinas

Walter Int'l Productions v. Walter Mercado Salinas

   Trial management difficulties doom recovery, allow court to make several pop-culture references.

No abuse of discretion in allotting each side 25 hours to present evidence, as appellant didn't object, and court was not rigid or inflexible in implementing.

No error in barring expert witnesses where Rule 26 pretrial disclosures were substandard.

No error in barring witnesses added via a contingent list later in the proceedings.

Sufficient evidence on damages.

No error in court sending away the jurors by telling them to have the wisdom of Solomon - it wasn't as the appellant suggests, a cue that they should divide the damages equally.

While special verdict finding breach but denying damages is inconsistent, as appellant didn't object before discharge of jury, issue is waived. 

Tenth Circuit -- United States v. Hernandez

United States v. Hernandez

Statutory limit to resentencing for violations of supervised release is calculated per-offense, not cumulatively.

While title of statute refers to sex offenders, as the text does not so limit it, it applies across the board.

Statute does not risk endless cycle of incarceration, as although the prison sentences aren't aggregated, the supervised release sentences are. 

Tenth Circuit -- Weight Loss Healthcare Centers v. Office of Personnel Management

Weight Loss Healthcare Centers v. Office of Personnel Management

Deference is due OPM's interpretation of federal health care plans - standard of review is 'arbitrary and capricious.'

Plaintiff argues that as the contracts are written in plain language, courts should be as free as the agency to interpret - court holds that contract language need not be arcane to require expertise in its interpretation.

Possible circuit split with the 4th.

Key interpretation question is whether plan's commitment to pay the average cost incurred nationally refers to the present procedure or average of all outpatient procedures - court holds that, given context, it is the latter. 

Reasonable insured standard does not displace contractual language.

Remanded to OPM with instructions to verify the insurers' numbers.  Supporting evidence needed, or, in the alternative, a reason why it is not needed.

Tenth Circuit -- Rojem v. Workman

Rojem v. Workman

District Court fee determinations are not appealable orders. 

District Court denied review of Magistrate's determination that fees for investigation of penalty-phase issues beyond a cursory background investigation are not permitted for counsel retained for collateral attack on penalty phase.

Not analogous to a complete denial of counsel.

[Thou shalt not kill.  - TMB]

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.