Friday, May 10, 2013





DC Circuit -- So. California Edison Company v. FERC

So. California Edison Company v. FERC


Habeas challenge arguing that petitioner should have been included in presently defunct pilot alternative sentence program is properly dismissed as moot where court can deny eligibility on the merits using plain language of statute.


Eighth Circuit -- Ron Meyers v. Tom Roy

State offender registration statute cannot be challenged under S1983, as the deft had the opportunity to litigate the underlying claim on direct appeal.

 Ron Meyers  v.  Tom Roy

Eighth Circuit -- Jane Doe I v. Jeremiah J. Nixon

Winning a preliminary injunction does not suffice to get fees under S1988 even where subsequent adverse holdings were the result of abstention.

Voluntary cessation of threat of prosecution resulting in a finding that the claim was moot is not a victory that would shift costs under S1988.

District court correctly held that fears of future prosecution were speculative.

Jane Doe I  v.  Jeremiah J. Nixon

Seventh Circuit -- Royce Brown v. John F. Caraway

Habeas challenge to fundamentally defective sentencing enhancement can be made by using the "actual innocence" provision of the Habeas statute.  Faulty 'career offender' bump qualifies.

Circuit split flagged.

Recklessness' inclusion in arson statute makes it ineligible for career offender enhancement.  (Both enumerated and resuidual.)

Futility of making the collateral challenge under the present theory during initial Habeas review excuses waiver.

Royce Brown v.   John F. Caraway

Seventh Circuit -- USA v. Michael Roux

Judge appropriately limited evidence as to prior bad acts to motive and identity.

Uncharged nature of prior bad acts not dispositive.

Arrest photos admissible for purposes of identifying deft in crime photos.

Prosc reference to jail telephone calls not grounds for mistrial.

Cross of deft did not implicate right to remain silent.

USA v.   Michael Roux

Fourth Circuit -- L.S. v. Pamela Shipman

Where the Secretary has decided to comply with an injunction restoring Medicaid services, state agency has no standing to challenge the injunction.

Litigation decisions can constitute final agency action for purposes of review when tantamount to a specific policy choice.

Would be an advisory opinion anyway.

L.S. v. Pamela Shipman

Fourth Circuit -- Timothy Branigan v. Bryan Davis

As they are unsecured interests, value-less liens can be stripped off in Chapter 20 proceedings even absent possibility of final discharge.  Courts must first value the interest.

Dissent: Liens with no present value therefore worse off than unsecured interests.

Timothy Branigan v. Bryan Davis

Sixth Circuit -- Frances Spurlock v. David Fox

School bussing -- Even where policymakers considered racial data, classification of students by location of home does not amount to classification by race.

Where the plan has indicia of legitimate intent, there is no segregative intent unless there is an overwhelming or suspicious concentration that leaves no room for inference to the contrary.

School under-utilization suffices for rational basis.

Frances Spurlock v. David Fox 

Sixth Circuit -- USA v. Tyree Washington

Difference in skin tone did not make photo lineup impermissibly suggestive.

Sufficient evidence for intent element of carjacking statute where touching victim and brandishing weapon are both established.  Where one not established, finder of fact can find general threat suffices.

Lenity counsels that the ordering of convictions in a simultaneous verdict should be arranged to favor the defendant when calculating total length of sentence.

 USA v. Tyree Washington 

Sixth Circuit -- Lee Gardner v. Heartland Industrial Partners

ERISA does not preempt state-law tortious interference claim.

Lee Gardner v. Heartland Industrial Partners 

Sixth Circuit -- Donnetta Smith v. Stoneburner

Ambiguity as to what the suspect said at the door of the house before police entered is the epitome of a triable fact.

Where narratives are disparate, it's not therefore a close call that should be granted S1983 immunity under lenity, but rather an issue for the trial.

No immunity for warrantless arrest made by reaching across the threshold of the door.

Arrest quite possibly involved excessive force.

Bad faith is a triable question.

 Donnetta Smith v. Stoneburner 

Sixth Circuit -- USA v. Kenneth Kennedy

Mail and wire fraud statutes cover both fraudulent loans and fraudulent investments.

Subjective good faith in scheme's fraudulent premise does not exculpate.

Deft had no right under FRCrimP to know vote-count/holdout revealed in jury note.

No error in denial of juror interview.

For purposes of sentencing enhancements, specific knowledge of funds acquired by scheme is not necessary.  Merely that they were reasonably forseeable outcomes of the scheme.

Sophistication & Obstruction sentencing bumps upheld.

USA v. Kenneth Kennedy 

Second Circuit -- RLI Insurance Co. v. JDJ Marine, Inc.

No extension of time to file brief absent (new) extraordinary circumstances where parties selected return date for answer, and prior extension was given, even though parties consented to the extension.

No reinstatement of case where filing deadline has passed even though court denied motion for extension of time to file after the deadline to file.

(Circuit-specific rules, not so much FRCP.)

RLI Insurance Co. v. JDJ Marine, Inc.
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.