Thursday, May 16, 2013

Short Form: Thursday

Second Circuit:

Rosario-Mijangos v. Holder -- Immigration/ Administrative.  Substantial evidence for IJ's finding that the paperwork was in order and represented a valid waiver.  Voluntary return to foreign country after waiving hearing is sufficient process to hold that subsequent absence breaks constant physical presence requirement. 

United States v. Wilson -- Crack/cocaine sentencing adjustment.  As it is not a true re-sentencing, court hearing the motion can properly consider behavior occurring prior to the original sentencing. 

Third Circuit:

New Vista Nursing and Rehabili v. NLRB -- NLRB recess appointments -  The jurisdictional limitation on the Board is the statutory requirement that three members act - slightly different than DC Circuit's quorum analysis.  Presumption of regularity means that the order took effect when it was dated.  Definition of "recess not textually committed to the president / unmanageable.  Recess Clause is limited to inter-session appointments, as the purpose of the limitation on the power is to preserve the "advise and consent" role of the Senate (a role which would be bypassed with a broader reading) and the text refers to the "next" session.  Dissent: Pro forma sessions were not contemplated by founders, and they don't offer a chance for advice & consent.

Fourth Circuit:

Ronnie Dooley v. Hartford Accident & Indemnity --- Insurance coverage stacking - contract referencing stacking of policies is not made sufficiently ambiguous to allow the claim where it refers to a limit that is not supplied in the document, since the statute referred to in the document explicitly pairs IM/UIM liability with general liability defined elsewhere in policy.

Fifth Circuit:

Louisiana Generating, L.L.C., et al v. Illinois Un --- Environmental Insurance - Duty to defend where policy obligates insurer to defend against pollution harms where potential prospective/injunctive relief is pollution-derived.  No holding on whether indemnification against civil penalties is against NY public policy.

Cibolo Waste, Incorporated, et al v. City of San A --- Appellant does not have standing to raise a Dormant Commerce Clause claim against a facially nondiscriminatory statute unless it is engaged in interstate commerce. 

Sixth Circuit:

USA v. Sidney Brown   4A - sufficiently credible information from informant for warrant; no error in denialof Franks hearing, as the questionable information wasn't necessarily a dispositve element of sufficient probable cause; No miscarriage of justice (deft counsel didn't renew motion to acquit) in holding that gun under mattress on second floor of house was strategically placed to be of aid in drug transactions, as it was a small house.

Eighth Circuit:

United States  v.  Kurt Alexander - Crim/Drugs - Ban on using buyer/seller relationship as sole proof of conspiracy only refers to isolated transactions - large amounts and frequent transactions can prove the conspiracy.  No error in sentencing enhancements, (guns, leadership) within-guidelines sentence not substantively unreasonable.

Tenth Circuit:

Roosevelt-Hennix v. Prickett -- S1983 - Sufficient evidence for denial of qualified immunity where plaintitff's version of events is credible to a potential factfinder, clearly reveals actions in violation of rights.

DC Circuit:

In Re: Sealed Case  -- Denial of motion to return materials allegedly seized in excess of warrant is not sufficiently final and reviewable, as it is tied to the tactics of the pending case, and there is no clear independent need for the return of the documents.  Third-party (Perlman) motion to invoke privilege cannot be used to compel return of documents under 41(g).

Federal Circuit:

FORRESTER ENVIRONMENTAL v. WHEELABRATOR TECHNOLOGIES   Jurisdiction - No 'arising-under' jurisdiction under patent law where the alleged violation is overseas without any prospect of the product being imported.

NSK CORPORATION v. USITC -- Antidumping - substantial evidence that UK ball-bearings would skew the market.  Court of International Trade and subsequent reviewing courts should show deference to the US International Trade Commission.

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.