Friday, December 28, 2012


1500 Cases

Well, somewhere around the Ninth Circuit, we passed 1,500 posts.  Taking into account the occasional announcement post and the fact that the blog started off as a one-page-per-day operation, it seems appropriate to mark the milestone here.  Off to secure a bottle of finest plonk to celebrate.



Chevron deference to agency determination that not implementing instructions as to case management is good cause sufficient for ALJ's removal.

Substantial evidence for agency's so finding when ALJ didn't speed up docket after instructed to do so in email.


DC Circuit -- Sharon Rollins v. Wackenhut Services, Inc.

Issuance of gun to employee was not enough to defeat per se rule that suicide is an intervening cause sufficient to bar negligence liability - trial court correctly dismissed claim sua sponte.

Certification of question to DC Ct. App. inappropriate.

Leave to amend properly denied, as request was made in the alternative at the end of another motion, and no copy of the proposed amendment was attached to the motion.

No error in denial with prejudice, given unlikely nature of claim.

Concurrence - many thoughts on 12(b)(6), inter alia,  if dismissal of claim is on motion, plaintiff has leave to amend.

Sharon Rollins v. Wackenhut Services, Inc.

DC Circuit -- Vernon Earle v. DC

S1983 Vienna Convention consular notification claim accrues with arrest.  It is not ongoing, neither is it tolled on the basis of fraudulent concealment of the right.

Vernon Earle v. DC

DC Circuit -- Black Beauty Coal Company v. MSHR

Combustible materials and a burning smell in the mine were enough for the violation - no need for actual combustion or proof that the materials had been there awhile.

Circumstantial evidence can be proof of inadequate training.

High negligence finding supported by substantial evidence.

Black Beauty Coal Company v. MSHR

DC Circuit -- USA v. Ernest Moore

No plain error in trial judge's mis-description of elements of the crime during plea colloquy, as deft did not establish harm from the error to substantial rights.

Deft's dispute as to priors in the PSR was waived at sentencing, despite lack of any strategic reason for him to have done so.

Excision of language from plea agreement granting restitution to all claimants does not mean that deft does not consent to judge ordering restitution to all claimants.

Order of judgement not citing plea agreement as basis for restitution was properly made under authority granted in plea agreement.

Counsel's apparent unfamiliarity with sentencing guidelines insufficient to establish ineffective assistance.

USA v. Ernest Moore

Eleventh Circuit -- Florida Transportation Services, Inc. v. Miami-Dade County

In-state company has sufficient prudential standing to challenge exclusionary licensing scheme under the Dormant Commerce Clause.

Local permitting scheme that excludes new entrants to the market plainly imposes a burden on interstate commerce, regardless of where the existing and potential entrants to the market are incorporated.

No local benefit rationally furthered by the licensing scheme.

Market participant exception doesn't apply, as the locality doesn't provide stevedoring services.

Lost profits properly awarded, given likelihood of licensure and proven willingness of market participants to do business with new entrants to the market.

Florida Transportation Services, Inc. v. Miami-Dade County

Eleventh Circuit -- Ronald Bert Smith v. Commissioner, Alabama Department of Corrections

Filing of Habeas petition without fee does not toll the AEDPA one year clock.

Where in-state counsel is possibly incompetent, lack of pro hac vice status for out-state-counsel does not allow court to find abandonment sufficient to equitably toll the AEDPA deadline.

Ronald Bert Smith v. Commissioner, Alabama Department of Corrections

Tenth Circuit -- Kirch v. Embarq Management CO

There is no aiding and abetting liability under ECPA.

As an ISP generally has access to its customers' data, there can be no improper acquisition of the contents of  that data under ECPA.

Kirch v. Embarq Management CO

Tenth Circuit -- United States v. Washington

Oklahoma juvenile conviction for pointing weapon dismissed after deft served probation functions as a valid ACCA predicate.

United States v. Washington

Tenth Circuit -- Jefferson County School v. Elizabeth E.

For a expenses at a second school to be reimbursable under IDEA, courts merely consider whether specifically designed instruction is provided and whether services are provided in order to help the child benefit from those services.

Exigent admission to inpatient medical facility without notice to the school district does not violate 10-day notice provision.

Where the District does not inform the parents of intent to evaluate, no violation of the statute in not making the child available for evaluation.

Jefferson County School v. Elizabeth E.


When government allows alien to avoid deportation for a criminal offense, this does not operate as a waiver barring consideration of the offense in subsequent naturalization proceedings.

Retroactive cancellation of the statutory provision allowing government to waive deportation does not mean that alines who utilized it had a valid expectation that it would bar consideration of the matter during naturalization proceedings.


Ninth Circuit -- USA V. JASON LEE

Guilty plea where the charging document articulates several theories of the crime, only some of which establish it as a predicate for a subsequent sentencing, is insufficient to establish the predicate under modified categorical review.

Where statute allows for reduced sentence where certain findings are made - findings that would remove the conviction as a predicate - and the reduced sentence is made without findings on the record, the reduced sentence in itself is insufficient to disqualify the conviction as a valid predicate.

No error in denial of entrapment instruction.



Immigration judge properly considered evidence in pending criminal trial of petitioner, as it was probative.

No denial of Due Process in the criminal action from IJ's consideration.


Eighth Circuit -- United States v. Derek Allmon, Sr.

Sentencing court cannot sua sponte impose a post-sentencing restriction on prisoner communication.  (Barring communication with everyone except counsel of record.)

United States  v.  Derek Allmon, Sr.

Eighth Circuit -- M.M. v. Dist 0001 Lancaster Co. School

Administrative finding that a certain educational tactic was counterproductive is not in itself proof that the school district's educational plan to the contrary was not in good faith.

Notice of meetings and chance to give views was sufficiently meaningful participation as required by statute.

M.M.  v.  Dist 0001 Lancaster Co. School

Seventh Circuit -- USA v. Adebisi Adigun

Even absent colloquy informing deft of the waiver, a guilty plea without a written agreement preserving certain grounds for appeal operates as an unconditional guilty plea waiving all ex ante non-jurisdictional grounds for appeal.

This is jurisdictional - open question as to whether government can waive it, but as govt hasn't in this case, court has no subject matter jurisdiction to hear a suppression challenge.

Courts reasons for denying downward variance make erroneous imposition of old statutory minimum sentence harmless error.

USA v. Adebisi Adigun

Seventh Circuit -- Peter Poole, III v. Debbie Issacs

Imposition of a modest fee for medical services does not violate the 8th Amendment.

Peter Poole, III v. Debbie Issacs

Fourth Circuit -- US v. Gary Gillion

Proffer agreement that by its terms contemplates trial binds post-indictment, requiring deft to take polygraph.

Statements were hamless anyway.

Interposing a similarly-named shell corporation between customer and employer for purposes of siphoning profits is fraud on the employer; the employer has a property interest.

Misstatements (forged signatures, use of certain kinds of checks) were sufficiently material.

Mailings from the shell corporation sufficient for mail fraud trigger.

US v. Gary Gillion

Fourth Circuit -- Beach First National Bancshares v. Michael Anderson

Bankruptcy trustee of parent corporation has standing for breach of fiduciary duty suit against directors of subsidiary bank taken over by the FDIC only with respect to a real estate transaction that affected the rights of the parent corporation.

Beach First National Bancshares v. Michael Anderson
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.