Monday, August 29, 2011

Federal Circuit -- CLARK V. U.S.

Decision barring National Guard members from reimbursement for time spent taking correspondence courses upheld.

Not a violation of Mandate Rule or law of the case, as appeals court hadn't spoken to that part of merits.


Federal Circuit -- IN RE AOYAMA

Patent stuff.  Chenery doesn't overly limit review.

Error in overbroad construction of claim.
Insufficient disclosure of algorithm.
Chenery does not bar appellate decision on different grounds than the Board considered.
Dissent: Ab initio raising of issues on appeal unfair to parties, barred by jurisdictional statute.


Federal Circuit -- TODD CONSTRUCTION, L.P. V. U.S.

Contractor evaluations sufficiently relate to the contract at issue for the Court to have jurisdiction under Tucker Act / CDA.

No standing, as defenses to individual negative evaluations do not sum up to a coherent challenge to the evaluations themselves as arbitrary and capricious.


Eleventh Circuit -- USA v. Ali Shaygan

District Court abused discretion when it imposed sanctions against US for an objectively reasonable prosecution .  

Assignment of costs and fees to US under Hyde Act was error, as there was no conscious wrongdoing.

Due Process error in not warning proscs that they were facting a public reprimand.

No reassignment at this point.

Dissent/special concurrence - bad faith provision in Hyde Act allows broader application than conscious wrongdoing.

USA v. Ali Shaygan

Eleventh Circuit -- Lindo v. NCL (BAHAMAS), LTD.

Contract term mandating arbitration in Nicaragua (under Bahamian law) of Jones Act claims enforced as not against public policy.

Strong presumption for arbitration clause enforcement.

Statutory claims are arbitrable.

Not unconscionable agreement.

Pubic policy defense is to be made at time arbitration award, not time of compelling arbitration.

No subject-matter exception for arbitrating Jones Act claims.  

Dissent: prospective waiver of statutory rights violates public policy.

Lindo v. NCL (BAHAMAS), LTD.

Eleventh Circuit -- Eloy Rojas Mamani v. Jose Carlos Sanchez Berzain

 ATS claim TKO'd at pleadings under Iqbal

Plaintiffs haven't pleaded facts sufficient to establish that defts specifically are subject to suit.

Killing of 70 to restore social order isn't a crime against humanity.

Eloy Rojas Mamani v. Jose Carlos Sanchez Berzain

Tenth Circuit -- James River Insurance Company v. Rapid Funding, LLC

 Petition for limited rehearing & rehearing en banc denied.

James River Insurance Company v. Rapid Funding, LLC


Challenge to card-check vote conducted under CBA is primarily contractual , and should be resolved through arbitration.

Substantial evidence for Board finding that since employer didn't follow own version of disputed card-check rules, union should be recognized.

Ordering all employers to arbitration creates unitary solution.



Order withdrawn, supplementary briefing ordered.


Eighth Circuit -- Michael Fisette v. Jasmine Keller

 Chapter 13 debtor can strip off completely unsecured claims (senior lien-holder's claim outpaces value of property) against principal residence.

Effective upon completion of plan, not formal discharge.

Michael Fisette v. Jasmine Keller

Eighth Circuit -- John Patrick Murphy v. John King

Thirty year execution of sentence upon probation violation upheld against 8A cruel & unusual habeus petition - the claim is procedurally barred, as not advanced on direct appeal or state collateral attacks.

Doesn't qualify for miscarriage of justice exception, as deft agreed to initial sentencing deal.

John Patrick Murphy v. John King

Eighth Circuit -- Minch Family LLLP v. Estate of Gladys I. Norby

Where a flood damage claim is based on the construction of a dike, the 6-year trespass SOL is superseded by the 2-year real estate improvement SOL.  

Claim based on flooding of neighbors field doesn't get the 15 year adverse possession SOL.

First flood is the accrual date.

Continuing trespass exception doesn't apply.

No tolling for time seeking administrative relief against what seems to be some sort of state agency.  [Again folks, this is quick work.]

Minch Family LLLP v. Estate of Gladys I. Norby

Eighth Circuit -- United States v. Jackie Porchay

No speedy trial violation.


No speedy trial violation as part of the alleged time was requested by deft, and a newly indicted deft was joined in the interim.

Court need not make detailed factual findings to justify tolling the speedy trial clock.

Mistrial from Brady does not mean that all consequent delays should be charged to the gov't when calculating speedy trial.

Sixth Amendment:

TKO'd by deft's active litigating.


Franks claim TKO'd - no need to disclose that some of affiant's FBI background was as a 'paraprofessional' & no proof of intentional/reckless disregard for truth.

No Brady  violation where disclosed during tril (but not beforehand)

No abuse of discretion in denying mistrial after codeft spuriously invoked the Fifth -- no prejudice.

No error in denying pretrial release.

Dissent: Violation of Speedy Trial Act , as gov't didn't offer proof that missing witness was essential.

United States v. Jackie Porchay

Eighth Cicuit -- Ricky Kidd v. Jeff Norman

 Habeus petition claiming actual innocence must rely on of acts not discoverable through reasonable due diligence at the time of trial.

Circuit split flagged.

Ricky Kidd v. Jeff Norman

Eighth Circuit -- Patti Beeler v. Michael J. Astrue

 Agency determination that four statutory methods are sole methods of establishing paternity/maternity entitled to deference under Chevron  and Auer.  

Prior agency ruling that children of valid marriage entitled to the benefit does not estop present ruling, as state intestacy laws establish that the designation doesn't apply to present case (posthumously conceived child)

Circuit split flagged.

Patti Beeler v. Michael J. Astrue

Eighth Circuit -- United States v. Donald Leonard Sturgis

Where the warrant includes 'occupants' of a structure and their vehicles, a regular occupant of the  structure who is not physically occupying the structure at the time the warrant was served is within the warrant.

United States v. Donald Leonard Sturgis

Seventh Circuit -- William Padula v. Timothy Leimbach

Summary judgment dismissal of S1983 claims against police actions against hypoglycemic individual during Terry stop.

Actions of hypoglycemic driver provided probable cause for DUI arrest, TKO'ing wrongful arrest S1983 action.

Removal from car wasn't excessive force, given court's decision not to second-guess police decisions.

Training/condoning claims are untenable given the loss of the underlying claims.

William Padula v. Timothy Leimbach

Sixth Circuit -- Joe D'Ambrosio v. Margaret Bagley

Where a federal court issues a conditional habeus order and the state releases the
deft but doesn't reprosecute within the time allotted, the federal court retains jurisdiction and may issue an unconditional writ barring reprosecution.

Key is that the first conviction wasn't vacated - What vacates a conviction is an entry in the court docket,
which—depending on the state’s procedures—is likely made through a court order, or
clear actions by the court signifying a vacatur.

FRCP 60(b) is an independent basis for jurisdiction.

Deft still has standing after issue of unconditional writ - not being retried is sufficient interest.

Dissent - The writ is an attack on the judgment - when the deft is freed from the incarceration incurred by the unjust judgment, the federal courts jurisdiction is at an end.

Joe D'Ambrosio v. Margaret Bagley

Sixth Circuit -- USA v. Lanerrick Johnson

Deft has standing to object to search o his bedroom where he is intermittently living there - house owned by his mother in law, inhabited by defts mother and estranged wife.

The right is not linked to the law of property.

USA v. Lanerrick Johnson

Sixth Circuit -- Kassem Hachem v. Eric Holder, Jr.

Immigration - Rule withdrawing voluntary departure upon filing of adverse appeal upheld under Chevron.

ILJ correctly applied totality of circumstances test to adverse credibility finding.

Adversarial demeanor of ILJ insufficiently established to show bias.

Any putative error in finding as to fear of persecution irrelevant, given changed conditions in the country. 

Reinstatement of earlier voluntary departure which had been imposed prior to rulemaking makes the order subject to the rule.

Kassem Hachem v. Eric Holder, Jr.

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

Elementary school  students in public schools are shielded by a Deshaney responsibility to protect from third parties on the part of the state. 

Qualified immunity for school officials,as this is new law.

Dissent : Circuit split flagged, parents could have removed student from school at any time, no state-created danger.

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

Third Circuit -- USA v. Leonard Gibbs

State statute barring wearing of body armor is a serious drug offense ACCA predicate.

Modified categorical approach, the indictment is in under Shepard, and it reveals the underlying offense to be possession of cocaine with intent to distribute.

No notice issue as insufficiently vague or unexpected.

USA v. Leonard Gibbs

FIrst Circuit -- Nolan v. CN8

No coercion under the Mass. Civil Rights Act where the action was termination and the employment arrangement was at-will.

Concurrence - no interference wit any protected right, given emplyment contract negotiated by sophisticated parties.

Nolan v. CN8

First Circuit -- Hatch v. Trail King Industries, Inc.

No error in jury instruction based on S404 of the RST recognizing an implied warranty of merchantability under Massachusetts law towards an innocent third party where the employer of the third party substantially designed the device.

In both strict liability and implied warranty, contract specifications defense is available.

No error in instruction which stated the law from S404 of the RST instead o Massachusetts state law.

Hatch v. Trail King Industries, Inc.

First Circuit --- Curet-Velazquez v. ACEMLA De Puerto Rico, Inc.

Copyright action - mostly procedural stuff.  

Preemption, SOL, misc arguments waived since not presented/preserved below.

No abuse of discretion in district court not looking at whole record for implied nonexclusive license affirmative defense - where not explicit, waived.

No abuse of discretion in reopening discovery.

No abuse of discretion in allowing expert to testify beyond his report without subsequent amendment. 

No error in not striking expert testimony where court ultimately doesn't credit his method.

Election of statutory damages under the Copyright Act can happen anytime prior to entry of judgment.

No error in damages.

Curet-Velazquez v. ACEMLA De Puerto Rico, Inc.

First Circuit -- Sagun Tuli v. Brigham & Women's Hospital

Gender discrimination verdict upheld.

No requirement to seek internal remedy where formal remedy discouraged by supervisor and specific adverse employment action taken.

Within SOL, as it didn't tick until a formal presentation to hospital committee about hostile work environment.

Hearsay in as not for the truth of the matter asserted.

Holding claim in abeyance is not a formal waiver.

No error in denial of isolated incidents instruction.

Jury could reasonably find that ordered counseling was retaliation.

The formal presentation resuscitated earlier small incidents for purposes of causation assessment.

No error in jury construing negative evaluations as animus.

No error in jury finding defamatory statement reckless.

No abuse of discretion in denying remittitur for 1.6m verdict; parallel state claims allow the jury to bypass the federal damages limit.

No error in 1.3m fees.

Sagun Tuli v. Brigham & Women's Hospital,
Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

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