Friday, July 15, 2011

Published Circuit Opinions - July 15

Second Circuit:

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:

See 7/8 - Errata.

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.

See 7/14 - Errata

Sixth Circuit:

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:

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:

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

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.

"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:

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:

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.

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).

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.

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

 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.
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Thursday, July 14, 2011

Published Circuit Opinions - July 14

Second Circuit:

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

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

First Circuit:

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

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:

 Revision - see 7/12.

Fourth Circuit:

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.


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:

Revision - see 7/12.

Revision - see 7/7.

Sixth Circuit:

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

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. . .

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.
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Wednesday, July 13, 2011

Published Circuit Opinions - July 13

Second Circuit:

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.

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:

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.

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

Fourth Circuit:
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:

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:

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.

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.

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.

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.

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.

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:

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

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.

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.

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:

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.

 

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Tuesday, July 12, 2011

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:

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

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.
Posted by at

Monday, July 11, 2011

Published Circuit Opinons - July 11

Second Circuit:

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

First Cicuit:

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.

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.

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:

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:

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:

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.  

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.
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...

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.

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..

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

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.
Posted by at

Friday, July 08, 2011

Published Circuit Opinions - July 8

SCOTUS:

Leal Garcia v. Texas
Court declines to stop execution - issue is consular access & there's a bill pending to implement Avena. Held: potential jurisdiction insufficient; Breyer, Dissenting - Don't kill the dude.  (btw, thou shalt not kill)

Second Circuit:

Vincent v. Comm’r of Social Security
Lawyer insufficiently develops administrative record, judge cuts pay.  Twice.  Reversed and remanded elsewhere.
We hold that the failure of a claimant’s attorney to develop the administrative record on issues collateral to the disability determination does not constitute a “special circumstance” warranting a reduction in attorney’s fees.

First Circuit:

Mendez-Aponte v. Commonwealth of Puerto Rico 
Protocol chief at Puerto Rico's State Department fired after suggesting that the government invest in Iraqi dinars.  Dismissal (with sanctions to counsel) of his complaint for wrongful termination upheld.  In other news, Puerto Rico apparently has a State Department.

Valle-Arce v. Puerto Rico Ports Authority 
ADA retaliation case - judgment as matter of law after seven days of trial testimony reversed & remanded.

Sixth Circuit:


Pete Johnson v. Commissioner of Social Security 
SSA - Since the treating physician relied on objective medical evidence, his testimony should be controlling.

Douglas Stalley, et al v. Wellmont Health Systems, Inc
Douglas Stalley, et al v. Mountain States Health Alliance
The Medicare Secondary Payer Act is still not a qui tam statute.  Sanctions to counsel.
 
Federal-Mogul U.S. Asbestos v. Continental Casualty Company
Duty to defend - policy mandated defense where no other policy would cover, and on exhaustion of another policy through the same transaction/occurrence.  Here, exhaustion happened through other claims, so no duty.

Seventh Circuit:

John Logan v. Donna Wilkins
1983 suit alleging conspiracy to destroy plaintiff's trailer park.  Insufficient evidence of conspiracy to toll the statute of limitations.

Empress Casino Jolie v. Rod Blagoje  (Court)  (Poz)
During pendency of RICO claim, monies that casios are usually required to give to horse racing operations cannot be placed in a constructive trust, given the Tax Injunction Act (which protects state revenues against Federal meddling).  Posner: it's either a fine, a fee, or a tax - and it's a tax.  Wittgenstein is mentioned.  Dissent: It doesn't raise revenue for the state, so it can't be a tax.

Eighth Circuit: 


United States  v.  Yahya Shakal
"Going through hell" in the Somali Civil war doesn't count for much in sentencing if you then take up work as a tax preparer who shortchanges the government over 2M.

United States  v.  Harold Drapeau, Jr.
Crim - no plain error on several factors.  Dissent - character evidence under 404(a)(2)/404(b) shouldn't have been excluded on the basis that deft was unaware of it.

United States  v.  Mark Maxwell
No error in jury being told that deft didn't pay taxes for several years when the charge is working as a fraudulent tax preparer.
 
Tom Brady  v.  National Football League
NFL lockout injunction struck down as violation of Norris-Laguardia Act
We therefore reject a reading of the phrase that would limit the acts encompassed by the second clause of § 4(a) to refusing to remain in any relation of employment whatsoever, as with a permanent and complete work stoppage. The phrase is more naturally read to mean refusing to remain in any particular relation of employment, whether or not the refusal is complete and permanent.
Dissent: Intent of Act was to protect labor, not management.

Ninth Circuit:

PEDRO JOSE HERNANDEZ-CRUZ V. ERIC H. HOLDER JR.
Immigration - Burglary (3 cases of beer for $43)  isn't necessarily a crime of moral turpitude - walking into a building isn't a "substantial step" in furtherance. 




PEREZ RAMIREZ V. HOLDER
Immigration - No need for report to external agency to get "whistleblower" status - reporting to supervisor suffices.

USA V. MANUEL GONZALEZ-MELCHOR



Immigration - Trial court's participation in negotiating appeal waiver by deft TKO's the waiver, given the potential for coercion.

Tenth Circuit:

Ravenswood Investment Company v. Avalon Correctional Services



ClearOne Communications, Inc. v. Bowers (Donald)


Eleventh, DC & Federal TK  - TMB
Posted by at

Thursday, July 07, 2011

Published Circuit Opinions - July 7

Second Circuit:

The entire Second Circuit declines to recuse itself from a 9/11 conspiracy case.  Attorney ordered to show cause why this one doesn't go to eleven.

Costs and fees to prevailing party in an immigration case, as the government's position wasn't substantially justified.

Madoff litigation - civil RICO conspiracy to "fleece" claim booted as precluded by the PLSRA RICO amendment.

 FSIA - China granted immunity based on third party assertion, execution of judgement against Chinese assets blocked.
We identify no doctrinal bar to a district court’s applying execution immunity on its own initiative consistent with the terms of the FSIA.

 First Circuit:

If you have three guns, you have a sentencing enhancement - no need for the possession to be charged, so long as it's part of the same course of conduct or common scheme or plan.

When you install a poor hospital floor, you have to put in a new one, not just patch the cracks where they appear.

Dismissal of predatory lending claim reversed in part. 

Third Circuit:

Omnibus review of recent FCC rulemakings.  Need more noticin' & commentin' next time.

Fourth Circuit:

Out of state attorneys who did work and signed stuff get fees under EAJA, even where they didn't seek pro hac vice admission.  Dissent - local rules consitute "special circumstances" under the Act.

Fifth Circuit:

Duty to defend - In Texas, an advertising injury requires dissemination.

16 months between arrest and trial won't get you a speedy trial and/or ineffective assistance of counsel Great Writ - it's not objectively unreasonable in Mississippi..

USA v. Welles Bacon








(Extraordinaily) bad deeds 30 years ago can be considered for "pattern of activity" sentencing enhancement.

Sixth Circuit:

"Motor City Miink," a Detroit pimp, needed to check the ages of his employees more carefully. Reversed as to one count, as the CEE requires that all conspirators "act in concert."

Seventh Circuit:

Conviction under general sodomy law can be a Tier III sex offense, since the judge can consider the charging instruments (revealing it to be rather forcible) & not registering = bad police karma.

Charging instruments usually can't be considered under ACCA.  Dictum, as offense was intrinsically violent.

 Motions to Dismiss should be responded to.  (Deft's plan here - move to amend the pleading, then appeal the denial of the motion.)

Eighth Circuit:

(Nine published decisions in one day means MB cuts & pastes clerk summaries.) 

United States  v.  Alvin Eason
  Criminal case - Sentencing. Defendant's Tennessee burglary conviction
   qualified as a violent felony under the Armed Career Criminal Act;
   defendant's plea agreement did not waive his right to challenge the
   reasonableness of his sentence; sentence was not greater than necessary to
   achieve sentencing goals and was not substantively unreasonable.
 
United States  v.  Karina Sanchez-Gonzalez
 
   Criminal case - Criminal law and sentencing. Court would not consider
   claim of ineffective assistance of counsel at trial as that claim requires
   further development of the factual record and should be raised in a
   Section 2255 proceeding; district court did not err in concluding
   defendant was not entitled to safety-valve sentencing based on its finding
   that she failed to provide the government with truthful and consistent
   information; court would not address a claim of error concerning denial of
   a two-level reduction for acceptance of responsibility as defendant could
   not be sentenced below the statutory minimum in light of the district
   court's denial of safety-valve sentencing
 
Monarch Fire Protection Dist.  v.  Freedom Consulting & Auditing
 
   Civil case - torts. District court did not err in granting defendant
   summary judgment on plaintiff's claim for conversion as plaintiff failed to
   establish the elements of conversion under Missouri law; Missouri
   Supreme Court would require an indemnity clause to contain express
   language referencing litigation between the parties before interpreting it to
   allow a party to recover attorneys' fees incurred in an action asserting its
   rights under the contract; here the indemnity clause does not contain such
   language and the court did not err in denying a request for fees. Judge
   Gruender, concurring in part and dissenting in part.
 
 
American Civil Liberties Union  v.  Javed Mohammad
 
   Civil case - civil procedure. While the parents of the charter school may
   have had standing to intervene in an action by the ACLU challenging
   certain of the school's policies on the ground they violated the
   Establishment Clause, the district court did not err in denying the parents'
   motion to intervene on the ground the motion was untimely.
 
  
Manley Stowell  v.  Paul Huddleston, M.D
 
    Civil case - Torts. District court did not abuse its discretion by finding
   that plaintiff's medical expert was not qualified as he had no practical
   experience or knowledge of what is usually and customarily done by
   orthopedic surgeons in circumstances presented in plaintiff's case; nor did
   the court abuse its discretion by concluding that the expert could not cure
   this deficiency by relying on outside sources of information, such as
   medical journals and statistics; claim that plaintiff did not need to present
   expert testimony to establish a prima facie case under Minnesota law is
   rejected as plaintiff had to produce expert testimony to establish that the
   risk of blindness was one that the defendant had a duty to disclose.
 
Gary Quinnett  v.  State of Iowa
 
    Civil case - Family Medical Leave Act. State regulations, a state benefits
   website and a benefits guide were insufficient to show that the State of
   Iowa had waived his Eleventh Amendment immunity with respect to suits
   brought under the Family Medical Leave Act's self-care provisions.
 
Suzanne Clark  v.  Iowa State University
 
   Civil case - Employment discrimination. District court did not err in
   dismissing plaintiff's "freestanding" due process claim or in denying her
   post-trial motion; however, the court erred in dismissing her state-law
   wrongful discharge claims against defendants Geoffroy and Callahan in
   their individual capacities. Judge Loken, concurring.
 
United States  v.  Joe Cruz

   Criminal case - Criminal law. District court did not abuse its discretion
   by denying defendant's motion to withdraw his guilty plea as his
   allegations did not establish a fair and just reason to withdraw the plea.
 
 
Hawkeye-Security Insurance Co.  v.  Donald Bunch
 
   Civil case - Insurance. District court did not err in finding coverage did
   not attach because Bunch lacked authority to permit the person driving
   the car at the time of the accident to use the vehicle as a second permittee;
   defendant was not entitled to uninsured and underinsured motorist
   coverage because the policy in question was not ambiguous.
  
United States  v.  Terry Mortensen


  Criminal case - Sentencing. Claims of Rule 11 error rejected. 



Ninth Circuit:
 
Trial judge denies death penalty deft's request for a second chair,  proceeds to file a response 
in special action defending the decision, is denied standing and reversed, proceeds to run trial 
and sentence deft to death.   Yeah, that's a Habeus.   (btw: thou shalt not kill.)
 
Tenth Circuit:
 
United States v. Soza 
Results of pre-Gant bad search allowed under good faith exception.
 
Eleventh Circuit:
 

Estate of Kyle Thomas Brennan etc., v. Church of Scientology Flag Service Organization, Inc.  

District Court can't enjoin a state proceding to preserve an attorney's representation (barred by the state judge) of a party before the District Court.  Y'know, federalism and all.

Conner v. Hall 

Georgia temporarily kept from executing a prisoner with possible mental retardation, given that it didn't come up at trial.  (Ironically, only because Georgia hasn't made a practice of denying Habeus under default for such things.)  (Btw, thou shalt not kill.)

 

Alan Horowitch v. Diamond Aircraft Industries, Inc. 

Questions on atty's fees certified to Florida S. Ct.,  reply paid.

 

Patsy Croom vs William F. Balkwill, Clifford Legg, et al 

2 hour Summers detention of suspect's 63 year old mother upheld.

 

   
 
 
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