Wednesday, November 21, 2012


Claims of indefiniteness not waived when denied in liminal motion and not referred to at trial or in JMOL.

For indefiniteness - the description must be in the terms, not discoverable from the terms.

Jury can rely on plain and ordinary meaning absent limiting construction.

District court did not err in enjoining the servicing of products sold before the injunction.

No abuse of discretion in excluding expert.


DC Circuit -- SFO Good-Nite Inn, LLC v. NLRB

NLRB did not err in ruling that where the unfair labor practice is directly tied to the taint on the decert petition (vacation pay, termination of stalwarts), no nexus between employer conduct and employee disaffection need be proven.  Per se categories can establish.

SFO Good-Nite Inn, LLC v. NLRB

Eleventh Circuit -- Herbert Rozier v. USA

2255 Collateral attack on sentence not allowed, as there was no change in the law since the sentencing.  Scotus in the meantime held that the Florida statute wasn't an ACCA predicate, but the sentencing was under the residual clause, which has a different predicate.

Dissent: Too fine a point.  Great Writ is a great writ.

Herbert Rozier v. USA

Eleventh Circuit -- Phillip C., et al v. Jefferson County Board of Education

Agency had the authority to promulgate regulation requiring state boards of education to reimburse parents for independent education of disabled children.

Inter alia, no barking dog.

Phillip C., et al v. Jefferson County Board of Education

Ninth Circuit -- USA V. DALE MANNING

Sentencing bump for deft's Obstruction of Justice conviction good, despite the claim that he was obstructing them with reference to another offense.  Materiality derives from interference with investigation (circuit split flagged), and deft had requisite intent.



Petitioner claims that lack of conjugal visits violate RILUPA -- issue is timeliness of claim.  Claim is good, as the denial of application for the second wife isn't part of the same pattern/practice as the denial of the first wife, but rather a discrete act.



Short periods of menial work should not have been grounds for denial of Railroad disability benefits.

Dissent: Yes, they should - ix nay on the enovoday.


Seventh Circuit -- Northfield Insurance v. City of Wau

Insurer had no duty to defend municipality on S1983 claims, as they were outside the time of the polcy's coverage.

Malicious prosecution claim might not accrue with a nolle prosequi.  (Dictum)

Concurrence: Consolidate, why don't you.

Seventh Circuit -- Edward Raybourne v. CIGNA

De novo review of post-remand agency finding.

In that insurer was arguing against claimant to the SSA at the time tat it denied benefits (against the SSA finding), insurer acted in a procedurally unreasonable manner.

No error in award of fees.  No error in award of fees for the entirety of the litigation, given single legal theory throughout.

Edward Raybourne v. CIGNA

Seventh Circuit -- USA v. William Hagler

State statute of limitations runs from the fist positive DNA identification, not the beginning of DNA analysis.

No constitutional harm in pretrial delay, as no prejudice to deft.

Sufficient evidence.

Later ambiguous DNA evidence in clothes inside getaway car not enough for new trial.

USA v. William Hagler

Seventh Circuit -- Josalynn Brown v. Advocate South

Insufficient evidence for a mosaic Title VII claim of unfair treatment.

No Title VII retaliation claim, as no comparator, and facts insufficient.

Josalynn Brown v. Advocate South

Seventh Circuit -- USA v. Dominick Pelletier

Deft wasn't in custody for Miranda purposes when answering questions during an FBI job interview.

Warrantless search upheld under inevitable discovery, as police would have easily been able to get a warrant, and showed every intention of doing so.

USA v. Dominick Pelletier

Sixth Circuit -- Michael Rimmer v. Eric Holder, Jr.

Death penalty deft seeking disclosures on prosc investigation via FOIA

No error in FOIA denial, as statutory protections of third parties justified the redaction, and the purpose of the statute is to prevent federal misdeeds, not state ones.

APA cannot be used to review the denial, as petitioner could have challenged the FOIA denial de novo in the District Court. 

Docs could have been requested using a simple agency request (Touhy request).

Michael Rimmer v. Eric Holder, Jr. 

["thou shalt not kill" - MB]

Fourth Circuit -- Maryland Transit v. Surface Transportation Board

STB did not err in denying a railroad's request to partner with a state govt to improve property.  Statute requires ready funds and indemnification.  Deal made funds contingent to legislative approval and relied on sovereign immunity.

Board not overly ministerial.

Maryland Transit v. Surface Transportation Board

Fourth Circuit -- Jimmy Martin v. Reginald Lloyd

Gambling statute not void for vagueness on facial challenge as (1) gambling isn't a constitutional right and (2) statute is not void as to all applications.

Ex Parte Young (no, not that part of the holding - the other part of it) not violated by the fact that one party has to put a prohibited machine into service to create a case/controversy.  The rule only applies where a question of fact can only be determined by conduct which might violate the statute.

Jimmy Martin v. Reginald Lloyd

Third Circuit -- USA v. Amifa Knight

Admission of evidence as to underlying murder scheme in perjury prosecution was proper, as deft was charged with conspiracy to commit the murder.

No error in denial of motion for acquittal 85 days late.

No error in finding that first degree murder was a related offense for purposes of sentencing guidelines, since at the time of the perjury, deft knew of the murder.

USA v. Amifa Knight

Third Circuit -- USA v. Paul Pavulak

Affidavit wasn't specific enough to justify the warrant, but police relied in good faith.  Where the same officer who obtained the affidavit conducted the search, not a per se violation.

No error in denial of Franks hearing, as deft didn't make sufficient showing.

No error in Prsc's closing - "consider the big picture" not improper cumulaiton.

Sufficient evidence for conviction.

No error in court applying modified categorical analysis for sentencing to impose mandatory life sentence, as statutory maximum would otherwise be life -- Apprendi is not triggered.

USA v. Paul Pavulak

First Circuit -- Rodriguez-Machado v. Shinseki

Appeal TKO'd for shoddy brief-writing.

"Infract" as a transitive verb.

Rodriguez-Machado v. Shinseki

First Circuit -- Fairbank Reconstruction v. Greater Omaha Packing

Jury could have rationally dfound that deft shipped bad beef.

In limine ruling that video evidence is admissible doen't mean that the objection doesn't have to be renewed upon introduction to preserve for appeal.

Fairbank Reconstruction v. Greater Omaha Packing

First Circuit -- House of Flavors, Inc. v. TFG-Michigan, L.P.

Appeals clock runs from entry of final judgment, despite pending motion for statutory attorneys fees.

House of Flavors, Inc. v. TFG-Michigan, L.P.

First Circuit --US v. Peters

When State A imposes sentencing condition of a certain number of years of good behavior after release, and the deft then serves time in State B as well, the condition is in effect upon release from State B for purposes of the sentencing bump for committing offenses while under sentence.

US v. Peters

First Circuit -- Redondo Construction Corp. v. PR Highway and Transportation

Remand to determine whether the statutory level of post-judgement interest should prevail.

Remand to determine whether prejudgment interest was assessed as a penalty.

Court shouldn't have awarded PL more than asked for or proved.

Redondo Construction Corp. v. PR Highway and Transportation
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.