Published Circuit Opinions - July 20

Second Circuit:

Capital Ventures International v. Republic of Argentina

Sovereign default - reversion of collateral in debt restructuring barred by attachments of other creditors - even though the intent is to use the collateral for a new bond issue, the temporary possession by the nation makes it vulnerable to secondary attachments.  Concurrence - the rollover might give seniority to the primary bondholders over the secondary attachments; possibly not a true reversionary interest.

New York Civil Liberties Union v. New York City Transit Authority

Injunction upheld requiring Transit Administration adjudicatory hearings to be open to the public - First Amendment applies to administrative hearings.

Fifth Circuit:

Archdiocese Milwaukee Fund Inc v. Halliburton Comp

Per curiam blip - remanded based on SCOTUS vacation.

Seventh Circuit:

Maria Cardenas v. City of Chicago

Dismissal upheld, as police officer was not properly served, plaintiff's attempt to invoke balance of hardships & claiming that those in blue are notoriously difficult to serve does not suffice.

Trovare Capital Grou v. Simkins Ind

Even where negotiations superficially continue, their validity as bona fide negotiations is a question for trial, inappropriate for summary judgment.

Sheila Schulz v. Green County, State of Wisconsin

Government worker has no property interest impinged when county reclassifies position as part of (small, but) legitimate governmental reorganization and hires her to fill the newly classified position.

USA v. Sergio Ramirez

Immigration charges, but a very broad holding on eligibility for 'fast track' correlative sentencing reduction.  Burden is on deft not only to stipulate to facts & waive all rights, but also to examine those districts that have 'fast track' programs and compare similarly situated cases there.

De Leon Castellanos v. Holder

While the Illinois domestic battery statute is probably not categorically a violent crime after Johnson, the 'battery causing physical harm' statute qualifies.

Eighth Circuit:

Nancy Burnett v. Clarence Burnett

§ 1327(a) affords the confirmed plan res judicata effect and bars Ms. Burnett's attempts in a collateral state court proceeding to expand her entitlement to relief to include interest on her prepetition spousal support.

United States v. William Olson

Standard for purposes of the sentencing bump for assault on an arresting officer is common-law assault, so a deft in a fetal position in a creekbed being bit by police dogs who appears to raise an arm holding a gun has menaced, and therefore assaulted, the officers.

United States v. Miguel Delgado-Hernandez

 Government is not required to prove that an alien remained within the country for the entirety of the time between his illegal entry and his apprehension.

Ninth Circuit:

DEL WEBB COMMUNITIES, INC. V. CHARLES PARTINGTON

Barring 'illegal, unlicensed, and false practices' is too vague to pass muster as an injunction; where the unlicensed business practices harmed a company, the company has standing; where a contract is champertous, (absent contrary recognition of a tort by the state supreme court) there is no basis for a third party to recover damages.

 BLAIR V. MARTEL

 When determining competency for federal habeus actions, the common-law standard is that a preponderance of the evidence must establish competency; speedy trial issues should be addressed under S1983, not habeus; there is no clearly established federal law, as determined by the Supreme Court of the United States, to a speedy appeal.  Death penalty case, btw - Thou shalt not kill.

Tenth Circuit:

Jordan v. Sosa 

Bar on prisoners recieving explicit material is implemented by administrative regulation, making a Constitutional challenge to the Act only valid where it is embodied in the implementing regulation; Action is Constitutionally moot, as it was an institution-specific ruling, and the prisoner is no longer at the facility; Prudential considerations also count against validity, as BOP doesn't yet know where they will send peitioner; BUT 'Capable of repetition, yet evading review' doesn't apply, as the prisoner has no certainty that he will be transferred out of the Circuit; 'Voluntary cessation' does not apply, as the restrictions have ceased due to prisoner's transfer out of the facility.

Eleventh Circuit:

USA v. Hung Thien Ly 

When a pro se deft declines to testify in his own defense, citing in a court-initiated colloquy the fact that he has no lawyer to question him, the court is required to inform the deft of his right to testify in narrative form.

Published Circuit Opinions - July 19

(TMB is very short on time tonight.  This stuff is much more likely than usual to be way off base.)

Second Circuit:

Wu v. Holder
Alien under a stay of deportation who ignores a "bag & baggage" letter does not forfeit his appeal under the fugitive disentitlement doctrine - would give an executive order the force of a court order.  Doctrine is an equitable precept, should vary with circumstances.

United States v. Vilar
No stay of appeal in order to allow deft to file a S2255 habeus collateral attack, but six months' extension allowed for general appeal prep.


Third Circuit:

Roberto Lima v. Newark Police Dept
Extrinsic evidence (the email to which the offer was attached) not admissible to determine whether a Rule 68 offer to settle includes costs.

Fifth Circuit:


Colony Insurance Co. v. Peachtree Construction Ltd
Under Texas law, an insurer's duty to indemnify can arise in a case in which it has no duty to defend;  an excess-liability insurer can maintain a subrogation claim against a primary liability insurer after the insured has been fully indemnified.

Jete Crosby v. Louisiana Health Service
Discovery in an ERISA action should be allowed to go beyond the administrative record where appropriate.

John Kinsel v. Burl Cain, Warden
AEDPA bars successive habeus filing when trial court finds recantation of key witness not credible

Michael Conway v. USA
CEO of airline held to be "responsible person" and therefore liable for 8M of airline's unpaid taxes.

USPPS, Ltd. v. Avery Dennison Corp., et al
Attorney conflict of interest case punted to Patent court; earlier ruling by court did not create an unstated 'rule of the case' holding of present court's jurisdiction.

Wal-Mart Stores, Inc. v. Qore, Inc.
Indemnification provision applies to award of attorney's fees against the indemnifier; award of fees should be closely examined to determine if the action arises within the specific indemnification.

USA v. William Breland, Jr.
Rehabilitation can be considered in revoking deft's supervised release.

Estate of Mable Dean Bradley v. Royal Surplus Line
Supplementary insurer's duty to defend does not arise until actual depletion of first policy; generally inadequate health care is not an ongoing injury for the purpose of identifying whether injury happened within policy's effective dates.

ANR Pipeline Company, et al v. Louisiana Tax Commission
Federal courts barred from considering state's (costly) re-valuation of pipelines, given Tax Injunction Act, and that state courts had considered the constitutional claims.

Sixth Circuit:

Stanley Adams v. Margaret Bradshaw 
Death penalty - method of execution challenges can be brought in habeus.  Thou shalt not kill.

USA v. Edward Fisher
Conviction for fraud upheld against evidentiary admission and sufficiency challenges.

Tracy Cowan v. Clarice Stovall 
Ineffective assistance of counsel habeus petition was timely.

Seventh Circuit:

Dana Woods v. Commissioner
Priosn policy barring pen pal solicitation upheld.

USA v. Charles States
Crim - Statements at time of arrest properly admitted

Milton Luster v. Illinois Dept of Corrections

Eighth Circuit: (Clerk summaries)

Brian Buckner v. Michael J. Astrue -
Civil case - Social Security. ALJ's findings concerning claimant's mental
impairments were supported by the substantial evidence on the record as a
whole; credibility findings regarding claimant were not erroneous; while
the ALJ erred in not expressly addressing the credibility of claimant's
girlfriend's statement, the error did not require remand as it had no
bearing on the outcome; challenge to hypothetical question posed to the
vocational expert rejected.

SEC v. Michael Shanahan, Jr.
Civil case - Securities. District court did not err in granting defendant's
motion for judgment as a matter of law at the close of the SEC's case on
the ground that the SEC had failed to prove the required elements of
scienter and negligence with respect to its claims that defendant had
violated securities law by participating in the grant of backdated "in-the-
money" stock options to corporate executives.

Southern Wine and Spirits, etc v. Mountain Valley Spring Company
Civil case - contracts. District court did not err in finding the
distributorship contract between the parties contemplated the duration of
the relationship and agreed to a term that ends only by mutual consent or
specific acts of default; as such, the district court did not err in finding
the agreement was for a perpetual term and not for an indefinite term;
district court did not err in denying defendant's motion for judgment as a
matter of law on plaintiff's claim for implied covenant of good faith and
fair dealing; however, the evidence was sufficient to support defendant's
counterclaim that plaintiff breached the implied covenant of good faith and
fair dealing, and the district court erred in setting aside the jury verdict
and granting plaintiff judgment as a matter of law; that portion of the case
is remanded, with directions to reinstate the jury's verdict and award for
defendant


Jody Borgman v. Ryan Kedley
Civil case - Civil rights. The district court did not err in finding that a
reasonable officer could have believed that plaintiff was barred from
entering the casino, and the officer was entitled to qualified immunity on
plaintiff's claim that her arrest for trespass violated her civil rights; the
release contained in the 2005 form plaintiff signed, which voluntarily
banned her from the casino, was valid and enforceable, and it absolved the
casino of any liability on plaintiff's constitutional and state law claims.

Ninth Circuit:

VIRIDIANA V. HOLDER




BEEMAN V. ANTHEM PRESCRIPTION

USA V. WALTER BAGDASARIAN




ROY FISHER V. TUCSON UNIFIED SCHOOL DISTRICT


The rest TK.  Or not.

Published Circuit Opinions - July 18

Second Circuit:

Brod v. Omya

(W)hen an alleged violation of RCRA depends on the presence or release of a particular contaminant, the NOI must identify the contaminant alleged to be the basis of the violation with sufficient specificity to permit the recipient to identify the specific legal provision alleged to be violated and the activity alleged to constitute the violation

CSX Corp. v. The Children’s Inv. Fund Mgmt. 

Shares held by second party in a credit-default swap as a hedge against the swap may or may not count towards the first party's 5% threshold for 13(d) - the issue is group formation - remand.  Special concurrence (reads like a dissent, esp. last paragraph):  No investment or voting power  unless there is prior agreement; no intent to evade; comparison of S16 of the Act; not-yet-promulgated SEC authority under Dodd-Frank could resolve.

Fifth Circuit:

USA v. Jose Hernandez

Insufficient expectation of privacy to challenge placement of GPS tracker on deft's brother's truck; BUT sufficient standing to challenge tracking of truck when he was in it - constable did not blunder, though, as monitoring wasn't continuous enough to justify a Maynard/mosaic-type claim.

Eighth Circuit:

Naketa Malone v. Ameren UE

Title VII case - racial discrimination.  Summary judgment for deft upheld, as scattered incidents didn't suffice for hostile workplace claim; Note to plaintiffs: when filing suit for not being promoted in 2007, be absolutely sure that you weren't promoted in 2007.

Timothy Zike v. Advance America Cash Advance

Missouri malicious prosecution claim TKO'd by court's pretrial finding of sufficient cause to charge; no comment as to whether a nolle prosequi is a termination of the case in deft's favor.

Ninth Circuit:

THOMAS WEST V. CHARLES RYAN 

Death penalty deft's habeus claims denied - (1) evidence of childhood abuse that deft withheld at time of trial should have been discovered with due diligence; (2) timely PTSD diagnosis would not have been an absolute bar to death sentence; (3) PTSD collateral attack on prior conviction denied as facts were available to deft at trial & insufficient adverse effects on second sentencing.  PTSD "startle reflex" theory insufficient to challenge findings of killing for pecuniary gain & especially heinous method of killing.  Thou shalt not kill.

MICHAEL ZAPARA V. CIR 

Plaintiffs given notice of lien, asked for stock to be sold and credited to the debt.  Held: (1) Tax court can hear the case given "any relevant issue" language in S6630 (2) Equitable-ish remedy of crediting the amount that would have been gained by the sale upheld as specific remedy, not (statutorily preempted) award of damages.

USA V. MICHAEL MAIR  

Errata - See 4/27.

Published Circuit Opinions - July 15

Second Circuit:

Int’l Strategies Grp., Ltd. v. Ness

SOL not tolled where "continuing course of conduct" is merely incidental contact with someone who has no plausible fiduciary duty; equitable estoppel not appropriate where PL merely hadn't yet realized that he needed to sue someone.

First Circuit:

Valle-Arce v. Puerto Rico Ports Authority 

See 7/8 - Errata.

Fairest-Knight v. Marine World Distributors, Inc 

Repeated repairs to a boat are not res ipsa proof of a valid claim against the shipyard for a breach of the implied warranty of workmanlike performance.

Pruell v. Caritas Christi 

See 7/14 - Errata

Sixth Circuit:

Richard Cole v. Commissioner of Social Security 

SSA - When the ALJ doesn't give the treating physician's opinion controlling weight and doesn't provide a good reason for doing so, it's a-gonna get reversed.

Dwight Morrison v. Tennessee Consolidated Coal Co  
Presumption of disability that arises after proof of pneumonoconiosis is not rebutted by a negative x-ray or examinations in the medical history which did not diagnose the disease - affirmative disproof required.

Seventh Circuit:

Sammy Moore v. Sylvia Mahone

Where a prisoner's civil rights suit might be barred by the rule of Heck (preventing such suits from being a collateral attack on judgments from prior disciplinary hearings), the pro se plaintiff must be informed of the rule and given a chance to make the claim without implicating the former judgment.

Eighth Circuit:

United States v. Steven Schwarte

On review, triggering condition for an anticipatory search warrant need only plausibly have occurred for the search to be valid; Although deft was asleep when the pr0n arrived, he can be charged with constructive possession, given that deft knowingly set in motion the process by which it was delivered.

Ninth Circuit

USA V. ALEJANDRO SEPULVEDA-BARRAZA

Even where deft is not charged with conspiracy, prosc can introduce evidence as to structure and practice of illegal drug enterprises, especially where deft claims to be unknowing courier.

MYERS V. USA 

"Discretionary function" public policy exception to US tort liability does not bar suit where the government conduct is mandatory and specific in the guiding Manual (but general responsibility for safe operation in the Federal Facility Agreement would not suffice);  execution of safety standards is not a matter of public policy; fact-specific foreseeability in the context of breach does not demand proof that the plaintiff be demonstrably imperiled, but proof that the conduct was dangerous to people generally.

Eleventh Circuit:

William Van Poyck v. Bill McCollum 

Death penalty deft seeks access to evidence to test for DNA by a S1983 suit claiming violation of the right to petition for clemency (hoping to prove co-deft pulled the trigger), court holds no such right under substantive due process, but merits of procedural challenge to statutory scheme left open.  Thou shalt not kill.

DC Circuit:

Electronic Privacy Information v. DHS

Airline body scanners - no statutory or 4A violation, but agency violated APA notice & comment, as: (1) even where the public is not compelled to change their behavior, the increasingly intrusive scan is a substantive change, not a procedural one; (2) where the relevant statute does not specifically contemplate the security measures, the addition of the measures is not interperative; (3) even where the security measures are already in place, mandating their use is not a general statement of policy.

USA v. Antwan Delaney

Where testimony at trial and at the suppression hearing differs as to which police officer asked deft for permission to search the car, trial court's determination that both accounts are credible is not subject to reversal as being exceedingly improbable;  sentencing court 'misunderstood its authority' under 3553(a).

William Moore, Jr. v. Michael Hartman

Bivens plaintiff in a 1A/retaliatory prosecution case does not need to establish reasonable probable cause to survive pretrial summary judgment - the connection between the animus and the prosecution is a question of fact for the trial court.

David Roeder v. Islamic Republic of Iran

2008 Amendments to FSIA do not abrogate the bar in the Algiers Accords on suits against Iran - insufficiently clear statement.

Sonya Pettaway v. Teachers Insurance and Annuity

 ERISA suit for termination of policy - insurance company properly relied on its own physician as opposed to the claimant's; no right of appeal on voluntary re-examination of claim by insurer is not a violation of "full and fair review" requirement.

James Stephens v. US Airways Group, Inc.
Where a lump-sum payment is 45 days later than the annuity option, but the lump sum is calculated, the disparity is not actuarial nonequivalence, but a valid claim for interest; Where the delay does not correspond to administrative necessity, it is unreasonable; where unreasonable, the claim is not de minimis.

Published Circuit Opinions - July 14

Second Circuit:

USA v. MacKay

Statutory remission provision (853i) does not bar equitable finding of a constructive trust.  (Except for general creditors.)

Mills v. Fischer

IFP and appointment of counsel denied for incarcerated petitioner with five out of three strikes.

First Circuit:

Kuperman v. Wrenn  

Prison regs limiting facial hair do not violate 1A, 14A & RLUIPA.  

Pruell v. Caritas Christi 

For state claim removal under Section 301 of the Labor Management Relations Act, movant must establish that plaintiffs are covered by a CBA.

Third Circuit:

David Covell v. Bell Sports Inc

 Revision - see 7/12.

Fourth Circuit:

Frederick Henry v. Robert Purnell

Shooting an escaping arrestee when you thought you were tasing him = solid S1983/4A claim.  Objectively unreasonable deprivation of a clear right.  Dissent - consider the officer's subjective situation.

Central West Virginia Energy v. Bayer Cropscience LP

Initial agreement called for arbitration in one city, later agreement superseded the prior agreement and dictated a second city.  An arbitration in the first city then ruled on the validity of the second agreement.  Held: it's a procedural question, not one of arbitrability, and therefore kosher. 

Fifth Circuit:

USA v. Anthony Kebodeaux

Revision - see 7/12.

Rommel Amos v. Joe Thornton

Revision - see 7/7.

Sixth Circuit:

In re: Two Gales

Bankruptcy - summary denial of fees to Chapter 11 counsel insufficiently reasoned; order of disgorgement of pre-petition retainer vacated for determination of whether or not a valid lien was created.

Seventh Circuit:

USA v. Nathaniel Worden

Waiver of appeals of "sentence" waives any appeal on the amount of restitution.

Ivanka Stanojkova v. Eric Holder

Immigration - petition for withholding of removal remanded.

Poz:  Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force. . .

USA v. Dennis Garthus

Child pr0nography sentence upheld - challenges on diminished capacity & sentencing guidelines denied.

Margarita Reyes-Sanc v. Eric Holder

Immigration - voluntary departure in response to apprehension by INS creates a break in continuous physical presence.

Eighth Circuit:

New Stream Insurance, LLC v. PHL Variable Insurance
Third party which paid for insurance fraudulently acquired has no claim to a return of the unearned premia - actual fraud cancels any rescission. (Minn.)

United States v. Larry Cromwell, Jr.
Sentence kosher, no need to vary downward on crack/powder; deft was not required to prove he deserved guidelines range.

Bruce Rademacher v. HBE Corporation
 Dismissal of claim by reservist that he was fired for his service upheld - insufficient proof that service was the cause of termination.

Harvey Edwards v. City of Jonesboro
Dismissal to challenge of state court takings award upheld by claim preclusion, not Rooker-Feldman.

United States v. Nathaniel J. Smith
Detention during Terry stop upheld, Minnesota attempted third-degree burglary sufficiently violent for ACCA.

Sierra Club v. Southwestern Electric Power Co
Proximate property and propensity to outdoorsy-type activities get Article III injury-in-fact for a Clean Water Act Suit.  Possibility of harm justified the injunction.  Special concurrence: COA review was too de novo.

United States v. Joseph Paul Young
Crim - same words at different robberies = signature style and therefore admissible;  BUT the other robberies are not "relevant conduct" for determination of whether sentences should run concurrently; sentence does not violate the parsimony principle.

United States v. Lorenzo Brooks
Crim - Back staircase to multi-family dwelling is not within curtailage; police testimony repeating CI ID of deft as seller of guns and drugs allowed as not offered for the truth of the matter asserted.

United States v. Brian Dion Roach
Physician expert whose expertise on child abuse was gained from practice (not study) held to be qualified.

John S. Lovald v. Kathryn M. Tennyson
Bankruptcy - Trustee cannot sell home where only 31K would be realized, there's no proof that it would benefit claimants on the estate, and the owner of the other half interest contributed all of the equity and faced mental health issues if the property was sold.

Ninth Circuit:

NUNEZ-REYES V. HOLDER
Contrary to prior Circuit precedent, expunged minor state drug offenses can be grounds for deportation.  Prospective application of the rule only.  One partial dissent on prospectivity, one dissent on the merits.

GOMEZ-GRANILLO V. HOLDER
Immigration - "Reason to believe" that petitioner is a drug trafficker is a call that is made based on all information available to the IJ at time of hearing.   (Maybe - this is a tough one to parse.)

E. M. V. PAJARO VALLEY UNIFIED SCHOOL DISTRICT
Whether special education classes are indicated for a poorly performing student.  Dissent: No abuse of discretion.

Tenth Circuit:

McCarty v. Gilchrist
S1983 for malicious prosecution - sufficient cause existed; second malicious prosecution theory cannot be bootstrapped in on destruction of evidence claim; SOL clock ticks from the end of the court case, not the OCCA (?) mandate.

Garrett v. CookGrant of fees in baseless motion to remove to federal court upheld - even during bankruptcy, as the litigation was pre-petition, bu the motion post-petition.

Eleventh Circuit:

Sherodney Stewart v. USA
Pro se second 2255 motion held not to be "second or successive," as the basis for the motion (vacated convictions which were predicate to finding that movant was a career offender) did not exist at filing of earlier motion.

Federal Claims:

TURNER CONSTRUCTION V. U.S.

GAO OCI finding with reference to contract to build army hospital struck down.

Published Circuit Opinions - July 13

Second Circuit:

Lopez v. Terrell

Where a federal sentence is adjusted downward to account for time in state custody, BOP decision to not credit state time served for good conduct is entitled to Skidmore deference.

Applied Energetics v. Newoak

Venue selection clause in formal agreement trumps compulsory arbitration clause in initial agreement where the first agreement is not mentioned in a merger clause.

First Circuit:

Adelson v. Hananel 

K case - personal jurisdiction affirmed; debate on terms; in a bench trial 'missing witness' presumption not in play where the side seeking the presumption doesn't call or depose them if available.

Peckler v. Citigroup Global Markets, Inc. 

Loss of stock in deferred compensation plans due to forfeiture during vesting period upheld against state wage law claims.

Fourth Circuit:

Frederick Aikens v. William Ingram, Jr

Colonel deployed to Kuwait files 1983 action alleging interception of his emails by agents of his superior officers - District Court holds that internal military remedies must first be exhausted, colonel does so, comes back and files a 60(b)(6) to allow the late appeal based on the fact that the court had (perhaps wrongly) directed exhaustion.  Court declines to find extraordinary circumstance & boots case.  Circuit affirms.  Dissents: Court should have stayed the initial case, forgoing of the appeal militates for equitable waiver of deadline.

Sixth Circuit:

Josh Himes v. USA

U.S. as a "statutory employer" is shielded by workmens comp safe-haven from tort claims by an employee of a maintenance company who was (totally) disabled while mowing the lawn of an army base.  (According to  Kentucky law, where the work was "regular and recurrent.")

Seventh Circuit:

Jill Treat v. Kelley Automotive

Terminated employees must seek relief through the Indiana Claims Statute, not the Indiana Wage Statute - the latter is a direct suit, the former is an action pursued on their behalf by the state.

Phillip A. Collins v. America's Servicing Company

Entering into a forebearance agreement doesn't mean that the payments won't be considered late, it just means that they won't take your house so long as you keep making 'em.

USA v. Marcus Powell

Cumulative evidentiary errors are still insignificant when summed; Mid-course motion for an aiding & abetting instruction was fairly granted; retroactive application of Fair Sentencing Act of 2010 still not kosher in 7th Circuit.

Reedsburg Utility Co v. Grede Foundation 

Municipality can't collect on a utility bill from a smelting plant in bankruptcy, as neither the prepetition interest in land, tax collection or special tax collection exceptions to the automatic stay under Chapter 11 apply.

USA v. Jermaine Curtis

Illinois 'discharge of firearm' statute qualifies as a crime of violence for the career offender enhancement; sentencing according to skewed crack/powder guidelines was not an abuse of discretion.

Clarendon National I v. Maria Medin

Where one person has the right to exclusive use of a vehicle owned by another and the first person contracts with a company to perform work with the vehicle, the vehicle is leased, as the first party had effective agency to lease it.  An insurance provision denying recovery when the vehicle is leased therefore fairly bars the claim.

Eighth Circuit:

Neighborhood Enterprises, Inc. v. City of St. Louis

Permitting requirement for a mural which had "End eminent domain abuse" inside of a red circle with a line through it (which is kind of ambiguous, no?) is an impermissible content-based restriction of speech, remanded.

EEOC v. Schwan's Home Service

EEOC Administrative subpoena upheld, despite possible non-timeliness of suit & questions on evidentiary basis for same.

United States v. Bryan Behrens

Guilty plea to securities fraud does not bar "no knowledge" claim at sentencing, given the possibility of mere misappropriation.

United States v. Frank Allen, Jr.
Claims of body language and inattentiveness sufficient to survive Batson challenge.

Ninth Circuit:

FRANKL V HTH CORP

General Counsel of NLRB has authority to file 10(j) petition for injunction, despite statutory command that the Board must make the determination.  (This is in agreement with other Circuits).  In this case, the injunction was not an abuse of discretion.

FEDERAL INSURANCE COMPANY V. UNION PACIFIC RAILROAD COMPANY

Where goods are lost or damaged after being taken off a ship, but before delivery to the customer, the Harter Act (sea-based) regime does not apply; covenants not to sue are therefore enforceable.

NRDC V. COUNTY OF LOS ANGELES

Clean Water Act - some rivers found to be polluted by storm runoff, some found to not be so.  Under the intent of the statute, smaller municipalities are subject not to relaxed standards but to increasingly specific standards.

Tenth Circuit:

United States v. Smith

Assault on an officer of the juvenile justice system (which, categorically, can include mere offensive touching) counts as a violent crime for the ACCA enhancement residual clause - "otherwise involves conduct that presents a serious potential risk of injury to another"

An assault or battery committed by a person in the custody of the state on those responsible for containing him necessarily gives rise to the sort of “powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.” ( quoting US v. Williams)

Eleventh Circuit:

USA v. Chaplin's, Inc. 

Forfeiture order for the entire contents of a store upheld where proprietor was being paid with drug sale proceeds.  A jewelry shop.   

 

Cat Charter, LLC, et al vs Walter Schurtenberger, et al 

Lightly reasoned arbitration award upheld as reasonable.

 

Published Circuit Opinons - July 12

First Circuit:

Safeguarding the Historic Hans v. FAA 
Wherein an old airplane hangar is allowed to be demolished.  FAA processes pass Overton Park muster, comport with NHPA & NEPA processes.

Third Circuit:

David Covell v. Bell Sports Inc
In Pennsylvania, tort claim juries can be instructed according to the Restatement Third despite the mixing of defect in design & negligence; government safety standards can be introduced.

Angel Pabon v. Superintendent SCI Mahanoy
 Lack of Spanish-language legal materials/translators in prison can toll the AEDPA one-year habeus deadline.  Debatable Bruton confrontation clause violation with admission of co-defendant's confession.

Fifth Circuit:

USA v. Anthony Kebodeaux
Intra-stae federal sex offender registration upheld as necessary and proper under Comstock analysis.  Special concurrence: should have analyzed the regulation as part of the whole statutory scheme.

USA v. Tandy McElwee, Jr., et al
Crim - medical drugs from doctor's office - Sentences and fine well above (6x) guidelines approved; illegal possession can be a lesser included offense of fraudulent acquisition. 

Sixth Circuit:

USA v. Jose Gaytan-Garza
Federal Rule of Appellate Procedure 4(b) is not jurisdictional, but late appeal dismissed anyway

Michael Evans v. C. Zych
Illicit possession & transfer of firearms is not a crime of violence for purposes of BOP classification.

Seventh Circuit:

Maurice Cobige v. City of Chicago
Arrestee in lockup died from arrhythmia - sufficient evidence.  But when son testified that mother was a bulwark of support, it opened door to her old convictions.  New trial on damages.

USA v. Daniel Littledale
Questioning of student in campus police station insufficiently custodial to require Miranda warning.

NewPage Wisconsin Sy v. United Steel
Easterbrook - Where a party seeks declaratory judgement in a District Court, jurisdiction obtains if the court would have jurisdiction over the claims of the "natural plaintiff" in the case.

USA v. Mario Meschino
Child pr0nography - sentencing enhancements upheld, inability to cross one victim where claim was tenuous upheld.  (School bus driver, btw.)

USA v. Augustus Wright
Trial barely makes 5 year statute of limitations deadline, as a deft signed a quitclaim on a deed.  (On instructions from his lawyer.)  Partial reversal for admission of police description of nontestifying defendant's statements under questioning, given confrontation clause.

Eighth Circuit:

Marlon Dale Sun Bear v. United States
2255 collateral attack on sentence not enough of a watershed/miscarriage of justice to give jurisdiction.  Dissent - retroactive application of relevant Scotus ruling would substantially change the sentence.

United States v. Samuel Turner
Pro se representation by paranoid schizophrenic upheld.  Among questions to potential jury members: "Is Matthew a Saint?"

United States v. Joe Bradley
Drug case - verdict survives challenges to calculation of amount based on date of conspiracy, disregarding of "minor participant" reduction given deft's scope & knowledge.

Bennett Brown v. Nuclear Regulatory Commission
Hobbs Act clock ticks with publication of decision and notification of parties, not printing in Federal Register.

Ninth Circuit:

STATE OF CALIFORNIA V. SAFEWAY, INC.
Grocers' revenue sharing during strike not covered by nonstatutory labor exemption to antitrust laws, but "quick look" is inappropriate.
If a competitor finds itself the target of a strike, which would cause it to lose sales to other competitors, then revenue sharing provides some cushion from the damaging monetary impact of the strike. But it is by no means “obvious” that the grocers that entered into the RSP would be motivated to reduce their competition on price.


CENTRO FAMILIAR CRISTIANO BUEN V. CITY OF YUMA
Requiring a church to go through a permitting process as it would dampen liquor sales in the area kinda violates RLUIPA.


LADELL BROWN V. R. HORELL
Confession extracted by promise to allow suspect to witness his child's birth would have been reversed on direct appeal, but not here on habeus.  No controlling legal standard for excluded evidence / right to present a complete defense habeus claim.


IN RE BRENDA MARIE JONES
Bankruptcy - Upon completion of a Chapter 13 process, the property revests, and the clock starts to tick for a subsequent Chapter 7 three year lookback.  (We think.  Tax law confuses TMB.)


Tenth Circuit:

United States v. Armijo
Manslaughter, as defined in the Colorado statute, is not a crime of violence for purposes of sentencing enhancement.


United States v. Martinez
Responding to a static-only 911 call is an insufficiently exigent circumstance to justify search of home.

United States v. Senninger
Prior decision - republished to include this footnote:
1Our review of Senninger’s appeal has been significantly impeded by her nearly complete failure to provide citations to the relevant sections of the record, as required by Fed. R. App. P. 28(e). Notwithstanding that failure, this court has thoroughly reviewed the entire appellate record and, based on that independent review, fully considered all appellate arguments raised by Senninger.
Counsel's request to withdraw denied.

United States v. Vasquez-Alcarez
 Sentencing upheld.  Priors from 15 and 11 years ago considered.

Eleventh Circuit:

Jeffery Lynn Borden v. Richard F. Allen 

Death penalty case - ineffective assistance of counsel habeus claim denied.  Thou shalt not kill.

USA v. Ramirez-Garcia

Statutory rape-type statute held to be crime of violence for purposes of sentencing enhancement.

DC Circuit:

Carlos Loumiet v. Office of Comptroller of Curr.
Action against a writer of a report on a bank's questionable actions alleging him to be an insufficiently critical institutional-affiliated party is so meritless as to justify award of fees.

Published Circuit Opinons - July 11

Second Circuit:

Ridinger v. Dow Jones & Co

Summary judgment against age disrimination plaintiff upheld - the severance agreement was sufficiently clear with repect to the waiver of ADEA claims.

First Cicuit:

US v. Newell 

US v. Parisi, Jr. 

Indian tribe uses health center funds to pay "ghost employees" & attempt to get permission for a "Racino" (combination racetrack and casino) on the ballot.  Largely upheld, one count TKO'd for scienter.  Harsh words for DA on duplictitous indictment (stealing from Peter and paying Paul are not necessarily two separate offenses), but not enough for plain error.

US v. Morales-Sanabria 

Evidence 101: (1) If a police report calls the deft black, and the deft is white, it's not a collateral issue.  (2) If there's a credible scenario for witness intimidation by law enforcement, it doesn't have to be mentioned on direct to be fair game for cross (3) If the deft's girlfriend is asked to express an opinion on whether police got the right guy, it's probably inadmissible.  Vacated and remanded.

Berkshire Medical Center, Inc. v. U.W. Marx, Inc. 

Erratum to prior opinon. (Typo.)

Fourth Circuit:

Mary Quesenberry v. Volvo Trucks North America
CBA expires, union strikes, new agreement reached.  All's well, except that workers who were under the first CBA but not covered by the second saw their health plans go where the (underinsured) dolphins go.  District Court permanent injunction prohibiting management from monkeying with the health care terms imposed by the first CBA upheld.

Fifth Cicuit:

Carleen Black v. Pan American Laboratories, et al

Title VII's 200k limit is per party, not per claim.  Dissent: Only on issues that can't be tried separately due to claim preclusion.

Sixth Circuit:

Charles Goodell v. Jesse Williams

Going from 9 to 13 years on resentencing doesn't awaken the presumption of vindictiveness, as it was a different judge.  Notwithstanding the judge's "we'll see you back here probably in a couple of years" comment at resentencing.  In fairness, the crime was burglary and rape.  And the deft was there in the first place as a "heavy" to collect the rent. 

  

Seventh Circuit:

Bishop Harvey, Jr. v. Town of Merrillville

Section 1983 action against town for a mosquito-rife pond - dismissal upheld as there were no similarly situated non-minority residents.  Extensive commentary on briefing skills of plaintiff's counsel.  Remand to state court TKO'd, as there was no original action in state court.  

Susie Weitzenkamp v. Unum Life Insurance

Insurer's coverage limit due to limitaiton in plan on "self reported symptoms" not upheld, as it wasn't in plan summary.  Recoupent of prior payouts due to retroactive SSA award upheld against statutory challenge.  Procedural error on cross appeal - it advoates change in court's reasoning, not final outcome.

Boimah Flomo v. Firestone Natural Rubber Co.

Poz: ATS applies to Corporations.  (Not in this case, though, as there's no clear violation of international law in kids helping their folks make their daily quota on the rubber plantation.) 

The concept of customary international law is disquieting in two respects...

Universal Mortgage C v. Wurttemberg 

Forced repurchase of bad bonds not covered by "employee misconduct" bond, as the loss was an effect of the employee error, not directly inflicted by the employee.

USA v. Adalberto Santiago

Admission of evidence on gang involvement upheld, as the gang was discussed during the recorded "buy," and the information helps to explain the deft's actions.  "Cocaine base" expanded beyond crack in Circuit given Scotus holding in DePierre..

Melvin Kimbrell v. Kary Brown

No jurisdiction to dismissal against A when co-deft B has been stayed due to bankruptcy, as it's not sufficiently final.

USA v. Matthew Turner

DQ of defense attorney doesn't violate Right to Counsel where prosecutor serves notice that defense attorney will be called to testify in inquiry on how an unemployed deft could give his lawyer 25k.  Reference in closing to deft's prior drug dealing allowed.

Eighth Circuit:

Julie Mahony  v.  Universal Pediatric Services

Public policy exception to dismissal at will doesn't 

apply, as the alleged fraud on the state hadn't happened yet. 

Outdoor Central, Inc.  v.  GreatLodge.com, Inc.

Given interconnected nature of case 54(b) designation of partial 

verdict as final struck down as premature adjudication. 

In re: Elizabeth Carlyle

Increased fees for death penalty deft (equivalent to biglaw brunch budget)

denied for lack of subject matter jurisdiction.  Win: deft's sentence was commuted.

Ninth Cicuit:

MADHURI PATEL V. KENT SCHOOL DISTRICT
"Special relationship" and "state created danger" exceptions to general rule barring 14A state liability for third-party harms do not apply in public school context.

RICHTER V. HARRINGTON
Crim - With clear prompting from Scotus, state dismissal of several (head-scratching) ineffective assistance of counsel claims upheld.

KY NGO V. G. GIURBINO
Crim - Sufficient evidence and Batson challenge ruling on strikes upheld on appeal.


JOSEPH DUNCAN, III V. USA
Appeal on death penalty deft's competence allowed, despite appeals waiver - standby counsel given limited standing to pursue the otherwise unreviewable claim.  (btw: thou shalt not kill.)

DYER VANDEVERE V. DENBY LLOYD
Limiting fishing licenses isn't either a cognizable taking or a violation of Due Process.

USA V. JOSHUA KENNEDY
 Kiddie porn - indirect victim impact statements permitted, but restitution to victims struck down as too attenuated.

USA V. PIO QUINZON
Child pr0n - Ongoing monitoring of all deft's internet-connected computers upheld as a condition of supervised release.


Eleventh Circuit:

Melanie P. Ivy vs Ford Motor Company 
Vehicle design tort claim - If you're going to claim failure to warn, you need to read the directions.  Negligent design dismissal also uphleld.

Federal Circuit:

FIRST ANNAPOLIS BANCORP, INC. V. U.S. 
Winstar case - no standing here, as lack of privity.