Thursday, April 25, 2013

Next update Monday

Still short one DC Circuit opinion from the past week.


DC Circuit -- Defenders of Wildlife v. Lisa Jackson (4/23)

Consent decree does not impose procedural injury on environmental group by compressing notice-and-comment period.  No proof of increased information-gathering costs.

Barred intervenor limited on appeal to appeal of the barred intervention.

Defenders of Wildlife v. Lisa Jackson


District court holding as to whether petitioner is an American citizen is reviewable only for clear error.

Burden of production on petitioner to prove citizenship by a preponderance, but the government still bears the ultimate burden of showing non-citizenship.

Dissent: De novo appellate review.  Government must show by clear, unequivocal, and convincing evidence.



Agency cannot substantially and permanently change rule that would otherwise be subject to statutory checks on modification by entering into a judicial consent decree.


Eighth Circuit -- United States v. Joel Castillo

From the court's website:

122898P.pdf   04/24/2013  United States  v.  Joel Castillo
  U.S. Court of Appeals Case No:  12-2898
  U.S. District Court for the Western District of Arkansas - Ft. Smith    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Criminal Case - conviction and sentence. Viewing the evidence in the
  light most favorable to jury verdict, government presented sufficient
  evidence for rational jury to find Castillo possessed methamphetamine
  knowingly or intentionally, as drugs were found in truck he alone drove,
  he appeared nervous at traffic stop, drugs smelled of mustard, he was
  unsurprised when drugs discovered, and story was implausible. District
  court did not clearly err in denying offense level reduction for mitigating
  role and considered the section 3553(a) factors in determining sentence. 
  District court did not abuse its discretion in sentencing Castillo.

Eighth Circuit -- Laclede Gas Company v. St. Charles County

From the court's website:

122755P.pdf   04/25/2013  Laclede Gas Company  v.  St. Charles County
  U.S. Court of Appeals Case No:  12-2755
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Kopf, Distric Judge, Author, with Bye and Melloy,
  Circuit Judges]
  Civil Case - preliminary injunction. In dispute involving right of local
  government and rights of public utility in shared easements, the district
  court had jurisdiction to grant preliminary injunction and did not abuse its
  discretion in doing so. No categorical rule that before addressing
  preliminary injunction motion a court must rule on the opposing party's
  assertion that the court lacks jurisdiction. Imminent threat of physical
  damage to pipeline sufficient to provide district court with jurisdiction
  under the Natural Gas Pipeline Safety Act. District court did not abuse its
  discretion in failing to abstain. Judge Bye concurs.

Eighth Circuit -- United States v. Freddie Wallace

From the court's website:

(With appropriate excisions to keep this site in the good graces of censorious web-indexing robots)

122172P.pdf   04/25/2013  United States  v.  Freddie Wallace
  U.S. Court of Appeals Case No:  12-2172
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges]
  Criminal Case - conviction. In trial on charges of production of child
  p and possession of child p, district court did not
  err in admitting signed confession, as the court carefully considered the
  totality of the circumstances in finding the confession was made
  knowingly, intelligently, and voluntarily. Admission of videotaped
  seized following tip from informant was not error, as informant's
  information was independently corroborated and probable cause for
  warrant was established. No plain error in admitting cellmate testimony. 
  Evidence was sufficient to support production of child p

Eighth Circuit -- Ser Yang v. Western-Southern Life

From the court's website: 

122021P.pdf   04/25/2013  Ser Yang  v.  Western-Southern Life
  U.S. Court of Appeals Case No:  12-2021
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Benton, Author, with Wollman and Bye, Circuit Judges]
  Civil Case - contract. Grant of summary judgment to insurer for
  disallowance of death benefits based on insured's signature on policy
  despite errors made by agent is reversed. A reasonable jury could find
  insured put agent on notice of prior medical history. Transcript of
  conversation was not attached to the policy and could not be used to
  contest the policy. Summary judgment is reversed

Eighth Circuit -- United States v. Bryan Behrens

From the court's website:

113482P.pdf   04/25/2013  United States  v.  Bryan Behrens
  U.S. Court of Appeals Case No:  11-3482
  U.S. District Court for the District of Nebraska - Omaha    
  [PUBLISHED] [Gruender, Author, with Chief Judge Riley and
  Colloton, Circuit Judges]
  Criminal Case - sentence. Sentence of imprisonment for securities fraud
  is affirmed. The "no knowledge" defense to imprisonment in 15 U.S.C.
  sec. 78ff, is not limited to no knowledge of the existence of the pertinent
  SEC rule or regulation but whether they did not know the substance of
  the SEC rule or regulation they allegedly violated regardless of whether
  they understood its particular application to their conduct. Because
  Behrens admitted to knowing the substance of Rule 20b-5, he was

Seventh Circuit -- Emilio Martino v. Western & Southern Financial

Not providing I-9 documents in a timely fashion was a bona fide reason to fire -- not a pretextual defense to claim of religious discrimination.

No substantial question of defamation when the termination was reported to state insurance officers, despite the fact that the only reporting requirement is for termination for bad acts.

Emilio Martino v.   Western & Southern Financial

Fourth Circuit -- Ernest Flagg v. City of Detroit

S1983 -- District court properly excluded motive-related evidence as inadmissible propensity evidence under FRE.

Lower court had discretion to make adverse inference instruction permissive as opposed to mandatory.

Summary judgment upheld.

Ernest Flagg v. City of Detroit 

Fourth Circuit -- Mahmoud Hegab v. Letitia Long

Court: Denial of security clearance does not state a colorable constitutional claim, as it is simply a recharacterization of a factual determination.

Concurrence 1: Challenge to policies states a constitutional claim, but this is a factual challenge.

Concurrence 2: Colorable constitutional claim, but nonjusticiable, since it's a political question.

Mahmoud Hegab v. Letitia Long 

Third Circuit -- Haddrick Byrd v. Robert Shannon

"Three strikes" bar to prisoners' proceeding IFP begins to accrue regardless of whether the prisoner was proceeding IFP in the prior action.

Entire action or appeal must be dismissed to count as a strike.  Circuit split flagged.

Quick dismissal of the claim in the present case (glaucoma eye drops/ 8th amendment)

Haddrick Byrd v. Robert Shannon

Second Circuit -- Shabaj v. Holder

Immigration review jurisdiction-strip upheld.  Even on constitutional questions, the challenge must be filed at the court of appeals level, not the district court level.

Shabaj v. Holder

Second Circuit -- Proctor v. LeClaire

For purposes of issue and claim preclusion, initial decision to restrain inmate is distinct from subsequent periodic review of the decision.

Proctor v. LeClaire

Second Circuit -- Patrick Cariou v. Richard Prince, et al.

IP must-read -- fair use does not require that the derivative work comment upon the original work or upon pop culture generally.  Key considerations are transformative nature and usurpation of market.

Concur/Dissent -- Court should have remanded all claims, instead of ruling on some and remanding some.

Patrick Cariou v. Richard Prince, et al.

First Circuit -- Smith v. Solomon and Solomon, P.C.

Federal debt collection statute does not require post-judgment garnishment action to be filed in the location of the initial contracting.

 Smith v. Solomon and Solomon, P.C. 
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.